The Issue The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals. Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.
The Issue The issues presented are whether Respondent, George Mason Citrus, Inc. (Mason), owes Petitioner $10,000 for citrus fruit that Mason purchased from Petitioner and, if so, whether the surety is liable for any deficiency in payment from Mason.
Findings Of Fact Petitioner is a Florida corporation licensed by the Department as a “citrus fruit dealer,” within the meaning of Subsection 601.03(8), Florida Statutes (2005) (dealer).1 The business address for Petitioner is 1103 Southeast Lakeview Drive, Sebring, Florida 33870. Mason is a Florida corporation licensed by the Department as a citrus fruit dealer. The business address for Mason is 140 Holmes Avenue, Lake Placid, Florida 33852. Western is the surety for Mason pursuant to bond number 42292005 issued in the amount of $100,000 (the bond). The term of the bond is August 1, 2004, through July 31, 2005. Petitioner conducts business in Highlands County, Florida, as a dealer and as a “broker” defined in Subsection 601.03(3). In relevant part, Petitioner purchases white grapefruit (grapefruit) for resale to others, including Mason. Mason conducts business in Highlands County as either an “agent,” “broker,” or “handler” defined in Subsections 601.03(2), (3), and (23). On January 31, 2003, Mason contracted with Petitioner to purchase grapefruit from Petitioner pursuant to Fruit Contract number 03-307 (the contract). Mason drafted the contract. The terms of the contract require Petitioner to sell grapefruit to Mason for the 2003, 2004, and 2005 “crop years.” The 2003 crop year began in the fall of 2002 and ended at the conclusion of the spring harvest in 2003. The 2004 and 2005 crop years began in the fall of 2003 and 2004 and ended in the spring of 2004 and 2005, respectively. Only the 2005 crop year is at issue in this proceeding. The contract required Petitioner to deliver grapefruit to a person designated by Mason. Mason designated Peace River Citrus Products, Inc. (Peace River), in Arcadia, Florida, for delivery of the grapefruit at issue. Mason was required by the terms of a Participation Agreement with Peace River to deliver 30,000 boxes of grapefruit to Peace River during the 2005 crop year. In an effort to satisfy its obligation to Peace River, Mason entered into the contract with Petitioner for an amount of grapefruit described in the contract as an “Approximate Number of Boxes” that ranged between 12,000 and 14,000. Petitioner delivered only 2,128 boxes of grapefruit to Peace River. The production of grapefruit was significantly decreased by three hurricanes that impacted the area during the 2005 crop year. The parties agree that Mason owed Petitioner $19,070.03 for the delivered boxes of grapefruit. The amount due included a portion of the rise in value over the base purchase price in the contract caused by increases due to market conditions and participation pay out after the parties executed the contract (the rise).2 On or about October 26, 2005, Mason mailed Petitioner a check for $9,070.03. The transmittal letter for the check explained the difference between the payment of $9,070.03 and the amount due of $19,070.03. Mason deducted $10,000 from the $19,070.03 due Petitioner, in part, to cover the cost of grapefruit Mason purchased from other dealers or growers to make up the deficiency in grapefruit delivered by Petitioner (cover). The $10,000 sum also includes interest Mason claims for the cost of cover and Mason's claim for lost profits. Petitioner claims that Mason is not entitled to deduct lost profits and interest from the amount due Petitioner. If Mason were entitled to deduct interest, Petitioner alleges that Mason calculated the interest incorrectly. The larger issue between the parties is whether Mason is entitled to deduct cover charges from the amount due Petitioner. If Mason were not entitled to cover the deficiency in delivered boxes of grapefruit, Mason would not be entitled to interest on the cost of cover and lost profits attributable to the deficiency. The parties agree that resolution of the issue of whether Mason is entitled to cover the deficiency in delivered boxes of grapefruit turns on a determination of whether the contract was a box contract or a production contract. A box contract generally requires a selling dealer such as Petitioner to deliver a specific number of boxes, regardless of the source of grapefruit, and industry practice permits the purchasing dealer to cover any deficiency. A production contract generally requires the selling dealer to deliver an amount of grapefruit produced by a specific source, and industry practice does not permit the purchasing dealer to cover any deficiency. The contract is an ambiguous written agreement. The contract expressly provides that it is a "Fruit Purchase Contract" and a "delivered in" contract but contains no provision that it is either a box or production contract. The contract is silent with respect to the right to cover. Relevant terms in the contract evidence both a box contract and a production contract. Like the typical box contract, the contract between Mason and Petitioner prescribes a number of boxes, specifically no less than 12,000, that are to be delivered pursuant to the contract. However, the typical box contract does not identify the number of boxes to be delivered as "Approximate No. of Boxes" that ranges between 12,000 and 14,000 boxes. Unlike a production contract, the contract does not identify a specific grove as the source of the required grapefruit. Best practice in the industry calls for a production contract to designate the grove by name as well as the number of acres and blocks. However, industry practice does not require a production contract to identify a specific grove as the source of grapefruit. In practice, Mason treated another contract that Mason drafted with a party other than Petitioner as a production contract even though the contract did not identify a specific grove as the source of grapefruit. The absence of a force majure clause in the contract may evidence either type of contract.3 A box contract typically requires the selling dealer to deliver the agreed boxes of grapefruit regardless of weather events, unless stated otherwise in the contract. However, the absence of such a clause may also be consistent with a production contract because "acts of God" are inherent in a production contract. Such acts, including hurricanes, necessarily limit grapefruit production, and a production contract obligates the selling dealer to deliver only the amount of grapefruit produced. The contract between Petitioner and Mason did not contain a penalty provision for failure to deliver the prescribed boxes of grapefruit (box penalty). The absence of a box penalty in the contract evidences a production contract. The contract identifies Petitioner as the "Grower." A grower typically enters into a production contract. A box contract does not limit the source of grapefruit to be delivered, and the selling dealer in a box contract may obtain grapefruit from anywhere in the state. The contract between Petitioner and Mason limits the source of grapefruit to grapefruit grown in Highlands County, Florida. Mason knew that Petitioner sold only grapefruit from groves in Highlands County, Florida, identified in the record as the Clagget Taylor groves. During the 2003 and 2004 crop years, Petitioner sold only grapefruit from the Clagget Taylor groves. Mason received trip tickets and other documentation related to the delivery of no less than 24,000 boxes of grapefruit, all from the Clagget Taylor groves. The boxes of grapefruit delivered during the 2005 crop year came only from the Clagget Taylor groves. Mason received documentation showing the grapefruit came from the Clagget Taylor groves. Ambiguous written agreements are required by judicial decisions discussed in the Conclusions of Law to be construed against the person who drafted the agreement. Mason drafted an ambiguous agreement with Petitioner. The agreement must be construed against Mason as a production contract. Mason owes Petitioner $10,000 for the delivered grapefruit during the 2005 crop year. The terms of the bond make Western liable for any deficiency in payment from Mason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order directing Mason to pay $10,000 to Petitioner, and, in accordance with Subsections 601.61 and 601.65, requiring Western to pay over to the Department any deficiency in payment by Mason. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2007.
The Issue The issue is whether Garden World of Holiday, Inc., d/b/a Garden World (Respondent), and its surety, Platte River Insurance Company, owe funds to Sturon, Inc. (Petitioner), for the sale of agricultural products.
Findings Of Fact The Petitioner was a producer of agricultural products, specifically tropical foliage materials. The Respondent was a dealer of agricultural products and was apparently involved in a large project that required obtaining substantial quantities of tropical foliage plant product. In July 2006, the Respondent contacted the Petitioner and inquired as to the availability of tropical foliage plant product. The Petitioner and the Respondent had not previously done business together. At the beginning of the sales transactions, the Respondent sought, and the Petitioner granted, a line of credit for the plant material purchases. Beginning on July 28, 2006, and continuing through September 22, 2006, the Respondent purchased and took delivery of tropical foliage plant product from the Petitioner. All materials sold by the Petitioner to the Respondent were in response to telephone orders placed by the Respondent. There is no evidence that the Petitioner charged for any plant materials that were not ordered by the Respondent. All charges for all plants sold by the Petitioner to the Respondent were billed on invoices that were sent by the Petitioner to the Respondent within one day of each delivery. The quantities and prices of the plants were clearly set forth on the invoices. The evidence establishes that the Respondent received the invoices and was aware of the prices being charged by the Petitioner. The Respondent has asserted that there were conversations about the prices being charged by the Petitioner, but there was no evidence presented that there was any agreement between the parties under which the Petitioner agreed to reduce the prices being invoiced. Despite the alleged price concern, the Respondent continued to order plant materials from the Petitioner. Based on a review of the invoices, the total cost of the plant materials sold by the Petitioner to the Respondent was $164,362.67. The Respondent has paid a total of $66,968.69 to the Petitioner. The total unpaid amount is $97,393.98. The Petitioner routinely grew various types of foliage product. When the Petitioner's own supplies were insufficient, or the material requested was not of a type grown by the Petitioner, the Petitioner located and obtained plant materials from other producers for purposes of resale to dealers. The prices of plants obtained from other producers for resale included a "markup" for locating and obtaining the materials for purchase by a dealer. In supplying the plant materials requested by the Respondent in this case, the Petitioner sold from its own inventory and obtained materials from other producers for resale to the Respondent. There was no evidence that the markup was unreasonable or was not common practice in the industry. There is no evidence that the Respondent attempted to locate and obtain plant materials from other suppliers rather than from the Petitioner because of dissatisfaction with the Petitioner's prices. At the hearing, counsel for the Respondent asserted that the Respondent's refusal to pay was related to "price gouging" by the Petitioner. There is no evidence that the Petitioner engaged in "price gouging." There was no evidence that the Respondent could not have located and obtained the plant materials from the same sources from which the Petitioner obtained the materials it did not produce. Although prior to the hearing, the Respondent asserted that some plant materials were not of appropriate quality; there was no evidence presented at the hearing of any quality problems that were not immediately resolved at the time of delivery. At one time, the Respondent asserted that the entity for which the Respondent was purchasing and installing plant materials was tax exempt and that the amount owed should have been accordingly reduced, but there was no evidence offered in support of the assertion and no reduction has been set forth in this Recommended Order. The Respondent presented no evidence to establish any legitimate reason to avoid payment of the $97,393.98 owed to the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order directing that the Respondent pay the total of $97,393.98, to the Petitioner, and providing for such other procedures as are appropriate to provide for satisfaction of the debt. DONE AND ENTERED this 9th day of July, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2007.
Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, I make the following: The Respondent, Gerald W. Conrad, is a registered building contractor who holds license No. RB 0016374. The projects involved herein are situated in Pinellas County, Florida. Pinellas County has a local Construction Industry Licensing Board which declined to prosecute this matter when it was referred to the local board for its determination as to whether or not any disciplinary action should be taken against the Respondent, Gerald W. Conrad. Jerry Taylor, an investigator with the Board since approximately February of 1977, investigated the Board records as they relate to the Respondent. Evidence reveals that on May 1, 1977, Respondent Conrad d/b/a Spanish Grants, Inc., effected a license renewal and during July of 1977, Respondent requested and was granted permission to change the contracting entity involved herein from a corporate entity to a sole proprietorship. Peter M. Lipman, the Executive Director of the Pinellas County Construction Licensing Board, testified that the complaint allegations concerning the Respondent were presented to the Board informally and that the Board, pursuant to its rules and regulations, conducted a preliminary inquiry into the matter and decided to defer to the jurisdiction of the State Board. Lipman testified that he, as the official custodian of the local Board records, found no evidence of any registration or certification of Respondent with the local Board either as an individual or as a corporate entity. Jack Harris and his spouse, on March 14, 1977, entered into a contract with the Respondent to construct a home for a price of $44,000.00. On March 15, 1977, Harris tendered a $1,000.00 deposit to a Mr. Charles Pitcock, Sales Director for the Respondent, as security for the land on which the home was to be constructed. (See Petitioner's Exhibit No. 2.) Shortly thereafter, Mr. Harris visited the local offices of First Federal Savings and Loan Association of Tarpon Springs and arranged permanent financing. According to the terms of the agreements entered into with the Respondent, approximately $30,000.00 was to be given the contractor at the completion of construction, with approximately $12,000.00 to be financed. During the early days of April, 1977, Mr. Harris received a call from Respondent asking that approximately $7,800.00 be paid in order to commence the construction of his home. The money was forwarded to Respondent on April 8, as requested. On May 18, the Harrises received a request from Respondent for $7,200.00 for nest connected with the pouring of the slab and for plumbing, which request was honored on May 24. On May 28, Respondent requested an additional $7,000.00 for payments toward the construction costs in erecting the lintels. On June 1, 1977, the Harrises sent Respondent a check for $7,000.00, as requested. The Harrises were then living in Rego Park, New York, and were making efforts to retire to the home that the Respondent was constructing in Pinellas County, Florida. On June 1, the Harrises received a letter from Respondent's Sales Director (Pitcock) who advised that he was leaving the Respondent's employ. Mr. Pitcock also outlined in that letter several reminders and recommendations to the Harrises, such as continual monitoring of the construction progress; advising them to make their homeowner's insurance effective when exterior walls were erected; confirming closing dates with builders before appearing for same and a general offer to be of service when he could provide same. (See Petitioner's Exhibit No. 3.) All payments to Respondent from the Harrises were by check. (See petitioner's Composite Exhibit No. 4.) At about this same time, the Harrises became concerned about their reports of the lack of progress toward the construction of their home and Mr. Harris made a trip to Pinellas County from New York. Mr. Harris was able to arrange a meeting with Gerald Conrad and William Walker, Respondent's President and Vice President respectively. This meeting centered around the Harrises' inability to obtain a deed to the property they had purchased. On June 13, the Harrises filed an official complaint with a Mr. Anderson of the Consumer Affairs Department of Pinellas County. After the Harrises had paid approximately $15,000.00 toward the purchase price of their home and was unable to get a clear deed to the property, they ceased making further payments and Respondent has not refunded their money. The house was being constructed in a subdivision known as Oakleaf Village on Lot. 24, Block K, Oakleaf Village Unit 6. Further developments revealed that on October 26, 1976, the Respondent by its President, Gerald W. Conrad, executed a warranty deed to Richard G. and Kathleen Gushwa, that was the same property which the Harrises had agreed to purchase from the Respondent. (See Petitioner's Exhibit No. 6.) Richard Gushwa, an employee of the City of Clearwater, testified that he contracted with the Respondent to construct him a home for a total purchase price of $44,500.00. Initially the Gushwas paid the Respondent a $200.00 binder and thereafter an $8,400.00 start- up fee. The $8,400.00 was paid on October 25, 1976. When construction had not commenced as scheduled during January, 1977, the Gushwas arranged a meeting with their attorney and Messrs. Conrad and Walker, at which time the Respondent requested an additional $3,500.00 to construct the home which the Gushwas had contracted for in October of 1976. The parties were unable to resolve their differences and the matter ended, with the Gushwas paying no more money toward the contract price. During late April of 1977, Mr. Gushwa noticed a building permit erected on his property and later learned that the house was being constructed for the Harrises. During the first week of April, 1978, the Gushwas were able to sell the lot and abandoned building "as is" to Thomas and Sandra Hanson for $10,500.00. (See Petitioner's Exhibits Nos. 6 and 8.) On April 12, 1977, the Respondent, Richard A. and Helen Cope entered into a contractual agreement whereby the Copes agreed to pay Respondent $65,700.00 for a home to be erected in Oakleaf Village subdivision in Pinellas County, Florida. (See Petitioner's Exhibit No. 9.) The Copes paid $15,000.00 for the lot and to date, no improvements have been made. Additionally, the Copes have been unable to receive a deed to their property nor has Respondent refunded their monies. Bernard and Mary Koser entered into an agreement with the Respondent for the construction of a home to be built in Oakleaf Village for a total purchase price of $55,000.00. On March 21, 1977, the Kosers paid the Respondent, Spanish Grants, Inc., $11,600.00 and to date, the Kosers too have been unable to obtain a refund of these monies which were paid to Respondent nor has the property been deeded to them. (See Petitioner's Exhibits Nos. 10 and 11.) On November 29, 1976, Joseph T. and Patricia Vollaro entered into a contract with Spanish Grants, Inc., for a home to be constructed for $51,460.00. The home was erected on property owned by a Mr. Dreher. The Vollaros purchased the land from the Drehers for a price of $8,080.00. Additionally, the Vollaros paid approximately $2,485.00 over and above the amounts paid for the lot and the price they contracted for their home. (See Petitioner's Exhibits Nos. 11 and 12.) Evidence also reveals that the Respondent, Gerald W. Conrad, pulled two permits for Lot 24, Block K of the Oakleaf Village subdivision. (See Petitioner's Composite Exhibits Nos. 3 and 14.) RESPONDENT'S DEFENSE Essentially, the Respondent, through counsel, attacked the alleged vagueness and uncertainty of Chapter 468.112(e), F.S. Finally, the Respondent considered the acts here complained of against him to be regrettable and that, if possible, he would "turn back the clock".
Recommendation Based on the foregoing findings and conclusions of law, it is hereby RECOMMENDED: That the Respondent's registered building contractor's license No. RB 0016374 be revoked. That the Respondent pay the Board an administrative fine of $300.00. RECOMMENDED this 27th of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 John Turnbull, Esquire 319 South Garden Avenue Clearwater, Florida 33516 Mr. C. H. Hoskinson Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $5,560.08 for limes grown by Petitioner and picked and sold by Respondent Southeast?
Findings Of Fact Petitioner Joyce McKiness is a grower of limes in Homestead, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the limes, then brings them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the limes pays Southeast after receipt of the limes, Southeast ascertains what prices were paid for the limes, and then calculates its costs and pays the grower the difference. Between the weeks ending March 4 and July 8, 1988, Southeast picked 1,165.1 bushels of limes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's limes picked by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the limes, the percentage of the limes picked by Southeast which `graded out' for sale, and the amount of picking and inspection fees charged by Southeast. Petitioner bases the price that she claims Southeast received for the limes, for the eight separate pickings in question in this cause, on her belief that 1988 lime prices were 25% higher than 1987 lime prices. She, therefore, added 25% to the prices of limes picked in 1987 for the same months. No competent, substantial evidence was offered in support of Petitioner's belief. In one instance, Southeast paid her a higher price per bushel than she claims. Petitioner claims that 80% of each picking was saleable citrus. Southeast's records reflect that Petitioner was given credit for 80% of her limes on one of the eight pickings. For the remainder of the pickings, however, Southeast gave her credit for as little as 45.4% of the bushels picked and as high as 99.7% of the bushels picked. No competent, substantial evidence was offered to justify Petitioner's selection of 80% for all eight pickings. The 80% figure selected by Petitioner allows for no differences in the amount of marketable limes from each picking, and there is no evidence to support the proposition that no matter when during the season the limes are picked exactly 80% of them will be marketable. No competent, substantial evidence was offered as to how Petitioner computed the picking and inspection fees paid by Southeast, which fees were then deducted by Southeast from the sale price of the limes before crediting Petitioner with the balance of the sale price. In two instances, the picking and inspection fees charged by Southeast were less than what Petitioner claims they should be. Southeast admits that for lime pool #809 for the week ending March 4, 1988, it owes petitioner the amount of $393.36.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Joyce McKiness in the amount of $393.36 and that such monies should be paid to her within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Joyce McKiness 20350 Southwest 346th Street Homestead, Florida 33034 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The issue in this case is whether the application of Christopher and Caroline Roetzer (Appellants) for two variances allowing fences of greater than permitted height on their property should be approved.
Findings Of Fact Appellants, Christopher and Caroline Roetzer, are the owners of property located at 3001 Sunset Point Road in Clearwater, Florida. On or about July 7, 1994, Appellants filed an application with the Appellee, City of Clearwater, for variances of: 3.5 feet to permit a fence height of 6 feet where 2.5 feet maximum height is permitted in a structural setback area from a street right- of-way (Sunset Point Road) where the property is addressed from; and, (2) 2 feet to permit a fence height of 6 feet where 4 feet maximum is permitted in a structural setback from a street right- of-way where the property is not addressed from at 3001 Sunset Point Road. The Appellants purchased the subject property in November of 1993. At the time of purchase, the property was in an incorporated part of Pinellas County and was zoned for commercial use. The Appellants purchased the property for the purpose of constructing a single-family residence. The county issued a permit for construction of the residence on December 8, 1993, and construction began shortly thereafter. The residence was completed in March of 1994. The Appellants' residence is addressed from Sunset Point Road. The back of Appellants' property adjoins Oak Forest Drive. Oak Forest Drive is located in Forest Wood Estates, a residential subdivision that was initially developed more than twenty years ago. Appellants' property was not, prior to their purchase, and is not now, a part of Forest Wood Estates. Appellants' residence is a large two-story, three-car garage structure. The Appellants have also constructed a fenced dog-pen immediately adjacent to their residence. The surrounding residences are generally smaller, single story structures. Unlike Appellants' residence, the other residences adjoining Oak Forest Drive front on, and are addressed from that street, and not Sunset Point Road. The back of the residential property located at 3006 Oak Forest Drive, which is immediately adjacent to the Appellants' property, has a wooden fence in excess of 2.5 feet located along Sunset Point Road. In February of 1994 Appellants applied for annexation by the City of Clearwater. The purpose of the application for annexation was to enable the Appellants to access the City sewage system. On March 17, 1994 the subject property was annexed by the City. The Appellants were not informed that the annexation had been effected at that time. On May 19, 1994, officials of Pinellas County, also unaware that the Appellants' property had been annexed by the City, issued a permit for the construction of a 6 foot fence in the back of the Appellants' property adjoining Oak Forest Drive. On June 7, 1994, the fence was erected. At the time the fence was constructed, Robert King, a resident of Forest Wood Estates, informed the fencing contractor that the fence violated the City code. On June 9, 1994, the City of Clearwater issued the Appellants a notice of violation of permitting requirements. Prior to the construction of the fence, children used the back of Appellants property as a shorter route to return home from school. On July 7, 1994, Appellants filed an application for variances to construct not only the 6 foot fence that had been erected in the back of the property, but also to construct a 6 foot fence in the front of the property along Sunset Point Road. The Appellants applied for the variances for reasons of security, privacy, and protection from liability. Additionally, the Appellants applied for the variances for the purpose of allowing their two golden retrievers access to roam the property safely. The city planning staff recommended approval of the Appellants' application for the two variances. The matter was heard by the Development Code Adjustment Board on July 28,1994, at which time the recommendation of the City planning staff to approve the application for variances was presented by Senior Planner John Richter. Appellants also appeared and expressed their concerns for the security and privacy of their residence and property. Several residents of Forest Woods Estates appeared at the hearing and stated that the fence in the back of Appellants' property was unsightly and would detract from property values. The residents also stated that although a proposed expansion of Sunset Point Road would allow traffic to move closer to the Appellants' residence that the Appellants' front lawn was the largest on the street. The Development Code Adjustment Board unanimously denied the application of the Appellants as to both variances . The Appellants filed a timely appeal of the denial of their application. The appeal was referred to the Division of Administrative Hearings on August 23, 1994. The appeal was heard on January 12, 1995. Since the construction of the 6 foot fence in the back of Appellants' property there have been no incidences of children using the Appellants' property as a route to return home from school. Appellants' dogs have also had access to the back yard without incident. Appellants continue to experience a high level of noise and litter from the traffic on Sunset Point Road in the front of their property. Craig Hill, a resident of Forest Woods, who lives at 1882 Oak Forest Drive which is immediately behind the Appellants' property testified that he recently purchased his home in this subdivision, that the Appellants' fence provided security for keeping his son away from Appellants' dogs, and that the fence did not detract from his purchase of this property. Robert and Caroline King, real estate brokers who have resided in Forest Woods subdivision for 22 years, testified that the fence is unsightly and would detract from the value of other homes in the neighborhood. For these proceedings, Mr. and Mrs. King were neither tendered, nor qualified, as experts in real estate appraisals. Other longtime residents, Irving Carlson and Camplin Straker, also testified that the fence and the double gate for the fence were unsightly. The residents also expressed concerns because the fence is located near the only entrance to Forest Woods and generally detracts from the aesthetic appearance of the entire subdivision. John Richter, a Senior Planner with the City of Clearwater with 17 years of planning experience with the City, testified that there is no presumption to the recommendations of the planning staff to the Board, and that one consideration of the City code is the visual aesthetics of the surrounding property.
Findings Of Fact Respondents Jo Ann Cunningham, her husband, Ben G. Cunningham, and their partnership, Cunningham Real Estate, are eached licensed by petitioner as real estate brokers. They have offices in Clermont, Florida. In March of 1976, Orrin C. Barr spoke to respondent Jo Ann Cunningham by telephone from his home in Minnesota and inquired about the availability of orange groves. As a result of this telephone conversation, Mrs. Cunningham wrote Mr. Barr a letter, dated March 4, 1976, in which she recommended an orange grove. Of this grove, she wrote, in part: It is 10 years old, hamlin oranges, picked 17,000 boxes 1975-76, selling price $2,000.00 per acre or $160,000.00, owner wants cash. Petitioner's exhibit No. 2. Mrs. Cunningham inserted the figure 17,000 into the blank she had originally typed, because Mr. Cunningham told her that figure was approximately correct. The grove which Mrs. Cunningham recommended in her letter to Mr. Barr belonged to Hubbard Construction Company (Hubbard) at the time. Hubbard had entered into an agreement with Hi-Acres Groves, Inc. (Hi-Acres), under which Hi- Acres managed the property, fertilizing, spraying, picking fruit and selling the fruit to the Coca Cola Company. At the time Hubbard enlisted respondents' assistance in selling the grove, respondents were told they would be given the legal description and the price but no other information about the property. Mr. Barr and his partner, Reynold Anderson, travelled to Clermont from Minnesota and visited the grove with Mrs. Cunningham. After they had seen the property, Mrs. Cunningham introduced Messrs. Barr and Anderson to Irvin Barwick, general manager of Postal Colony Company, another Clermont firm in the business of managing orange groves. Out of the Cunninghams' presence, Messrs. Barwick, Barr and Anderson discussed citrus farming in general terms. On April 23, 1976, Messrs. Anderson and Barr signed an agreement, on behalf of Zaeco, Inc., to purchase the orange grove about which Mrs. Cunningham had written and which she had shown them. In July of 1976, on the morning of the day the transaction had been scheduled to close, Messrs. Barwick, Barr and Anderson drove out to the property. Mr. Barwick expressed the opinion that the fruit then on the orange trees would not fill more than 10,000 boxes. This raised a question in the minds of Messrs. Barr and Anderson as to whether they had been accurately informed about the grove's yield during the 1975-76 growing season. When Messrs. Barr and Anderson next saw Mrs. Cunningham, they asked her for verification of the 17,000 figure. She called Mr. Cunningham and asked him to verify the figure. Over the telephone, Mr. Cunningham told first his wife, then Mr. Anderson, that he might be unable to furnish verification, but that he would try. It was agreed at the closing that respondents' commission (six thousand dollars cash and a two year promissory note in the amount of ten thousand dollars), would be left with Arthur Roberts, the lawyer in whose office the closing took place, and would be disbursed to respondents only upon verification of the 17,000 figure. After the closing, Messrs. Barr and Anderson left Clermont. Mr. Cunningham inquired of Lester Austin at Hi-Acres' Clermont office about getting production and caretaking records for the grove. He understood from Mr. Austin that a company policy prohibited disclosure of such records without a release from the (former) grove owner, and that the records were kept at Hi-Acres' Forest City office. The following Tuesday, Mr. Cunningham visited Hubbard's offices and obtained a letter from Hubbard's president, J. Edward Greaves, authorizing release of production and cultivation records. When he arrived at Hi-Acres' Forest City office with the Greaves letter, Mr. Cunningham was introduced to Jean Suggs, to whom he gave the letter. In response to Mr. Cunningham's request, Mrs. Suggs consulted a computer printout and, on a scrap of white paper, wrote down the figure 9,431, which she said was the number of boxes of oranges the grove had yielded in the 1975-76 season. Mr. Cunningham then asked for stationery with Hi-Acres' letterhead and Mrs. Suggs gave him two or three sheets. Mr. Cunningham drove to his office from Forest City. When he arrived, he placed a yellow sheet of paper on a secretary's desk along with the stationery and cultivation records he had obtained from Mrs. Suggs. On the yellow sheet was written the figure 16,976. When Mrs. Cunningham learned what the yellow sheet purported to be, she said, "Frank Hubbard would shoot her doing business that way." On a sheet of Hi-Acres' letterhead, Mrs. Cunningham typed: July 13, 1976 INFORMATION requested by CUNNINGHAM REAL ESTATE Released by letter from Edward Graves [sic], Vice [sic] President, HUBBARD CONSTRUCTION COMPANY. 1975-76 Season Production EARLY & MID SEASON ORANGES 16,976 Boxes Bookkeeping Dept. Enclosures - Grove care records for all of 1975 and 1976 through sale of grove. Mr. Cunningham delivered this document to Arthur Roberts who, after seeing it, released the commission to Mr. Cunningham.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend Mr. Cunningham's registration as a real estate broker for a period of two (2) years. That petitioner suspend the registration of the partnership, Cunningham Real Estate, as a real estate broker for a period of two (2) years. That petitioner dismiss the administrative complaint against Mrs. Cunningham. DONE and ENTERED this 1st day of August, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of respondents' proposed findings of fact accurately reflects the evidence and has been adopted, in substance, insofar as relevant, except that the Commission records introduced in evidence reflect different addresses on Highway 50. Paragraph two of respondents' proposed findings of fact accurately reflects the evidence and has been adopted, in substance, insofar as relevant, except that any partnerships would have had to have been with Zaeco, Inc., rather than Barr-Anderson. Paragraphs three, five, six, seven, eight, eleven, twelve and thirteen of respondents' proposed findings of fact accurately reflect the evidence and have been adopted, in substance, insofar as relevant. Paragraph four of respondents' proposed findings of fact accurately reflects the evidence and has been adopted, in substance, insofar as relevant, except for the exchange of proposed contracts. Paragraph nine of respondents' proposed findings of fact accurately reflects the evidence and has been adopted, in substance, insofar as relevant, except that the buyers did not refuse to close "until and unless the production figure of 17,000 boxes was verified." Paragraph ten of respondents' proposed findings of fact accurately reflects the evidence and has been adopted, in substance, insofar as relevant, except to the extent it is predicated on hearsay. Paragraph fourteen of respondents' proposed findings of fact accurately reflects the evidence and has been adopted, in substance, insofar as relevant, except that the mistaken belief of Mrs. Cunningham and Pat McGregor that the yellow sheet had the authentic production figure was based on what Mr. Cunningham had told them. Paragraph one of petitioner's proposed findings of fact accurately reflects the evidence and has been adopted, in substance, insofar as relevant, except that the Commission records introduced in evidence reflect different addresses on Highway 50 and neither Mr. nor Mrs. Cunningham testified that they were active firm members in those words. Paragraphs two, three and five of petitioner's proposed findings of fact accurately reflect the evidence and have been adopted, in substance, insofar as relevant. Paragraph four of petitioner's proposed findings of fact was not established by the evidence. Paragraph six of petitioner's proposed findings of fact accurately reflects the evidence and has been adopted, in substance, insofar as relevant, except for the amount of Hi-Acres' stationery given to Mr. Cunningham. COPIES FURNISHED: Kenneth M. Meer, Esquire Post Office Box 1900 Orlando, Florida 32802 George E. Hovis, Esquire Post Office Box 848 Clermont, Florida 32711 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION Plaintiff CD 15380 vs. PROGRESS DOCKET NO. 3275 DOAH 78-886 BENJAMIN G. CUNNINGHAM LAKE COUNTY JOANN CUNNINGHAM and CUNNINGHAM REAL ESTATE Defendants. /
Findings Of Fact Respondent is a dealer in agricultural products and is licensed by the Department of Agriculture and Consumer Services, under Sections 604.15-604.34, Florida Statutes. On January 8, 1988, Jerome Allison, a truck driver employed by Respondent, picked up 47 pigeon plum trees from Petitioner's yard in Miami. Petitioner sold these trees to Respondent for the price of $90 per tree, or $4230, for a total of $4441.50 including tax. Mr. Allison delivered a check to Petitioner in the amount of $1057.50, leaving a balance of $3384. Respondent had not specified to Petitioner that the trees be of any particular grade. Petitioner did not sell the trees by reference to grade and guaranteed only that the trees were true to their name and were in good healthy condition. Petitioner brought the trees to the trailer for loading. Two of Petitioner's employees drove a tractor which carried the trees two at a time. In the course of loading, Petitioner's employees allowed the trees to rub together, damaging the bark of many of the trees. Mr. Allison tried unsuccessfully to alert one of Petitioner's managers to the problem, but was unable to find anyone in the office. Mr. Allison's warning to one of the tractor operators was ignored. Mr. Allison's illiteracy prevented him from noting this damage on the sales order that he signed acknowledging receipt of the trees. Upon receipt of the trees at the Key West jobsite, Respondent's president, Alberto Ribas, who was director of the project for which the trees had been purchased, noticed the damage, but decided to plant the trees anyway. Respondent pruned the trees in order to repair as much of the damage as possible. Following the delivery of the trees, the first contact between Petitioner and Respondent took place on February 15, 1988, when Keith Weyrich, general manager of Petitioner, called Mr. Ribas and asked when Petitioner was going to be paid. Mr. Ribas informed Mr. Weyrich that there had been a problem with the trees. Shortly prior to this conversation, a representative of the Florida Department of Transportation, which was Respondent's customer on the subject project, informed Mr. Ribas that they were rejecting all of the pigeon plum trees due to their poor quality. In early May, 1988, the representative of the Florida Department of Transportation announced its final decision. It rejected 23 trees and accepted seven trees. The remaining 17 trees were reclassified from Florida No. 1, which was evidently specified in the contract between Respondent and the Florida Department of Transportation, to Florida No. 2, which is a lower quality. Of the 47 trees delivered to Respondent, 24 were good healthy trees and 23 were not.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring Respondent to pay Petitioner the sum of $1210.50. DONE and RECOMMENDED this 5th day of October, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1988. APPENDIX Treatment Accorded Respondent's Proposed Findings 1-3 and 12. Adopted. 4. Adopted in substance, although not all trees were significantly damaged. 5 and 8-9. Adopted in substance. 6. Rejected as repetitious. 7 and 11. Rejected as against the greater weight of the evidence. Paragraph 7 also rejected as irrelevant to the extent that Respondent gave Petitioner the chance to remove the trees after they were planted. 10. Rejected as irrelevant. Treatment Accorded Petitioner's Proposed Findings and 12. Rejected as irrelevant. and 7. Adopted. 3-5. Adopted in substance. 6. Rejected as legal conclusion and against the greater weight of the evidence. 8. Rejected as repetitious. 9-10. Rejected as legal conclusion. 11. Rejected as against the greater weight of the evidence. COPIES FURNISHED: Keith Stuart Weyrich General Manager Quail Roost Nursery, Inc. 15100 Quail Roost Drive Miami, Florida 33187 Emilia Diaz-Fox, Esquire Courthouse Tower 44 West Flagler Street Suite 350 Miami, Florida 33130 (Post-Hearing for Petitioner) Stuart H. Sobel, Esquire Sobel & Sobel, P.A. Penthouse 155 South Miami Avenue Miami, Florida 33130 United States Fidelity & Guaranty Company Post Office Box 14143 Tampa, Florida 33623 Clinton H. Coulter, Jr., Esquire Department of Agriculture & Consumer Services Mayo Building Ben Pridgeon Bureau of License & Bond Mayo Building Tallahassee, Florida 32399 Robert Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32399-0810 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810
The Issue The issue posed for decision herein is whether or not the Respondent properly denied Petitioner's refund request for that portion of his Foresters licensing fee for the period July 1, 1979, through December 31, 1981.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, the following relevant facts are found. John T. Clark, Petitioner, is a licensed Florida Forester and, as such, received during December of 1978 a notice mailed by the Board of Registration for Foresters a license fee request for the period of January 1, 1979, through December 31, 1981. Petitioner timely submitted his license fee for the registration period in question. The Forestry Practice Act expired on June 30, 1979, based upon a veto by the Governor. (Chapter 76-168 as amended by Chapter 77-457, Chapter 6, Florida Statutes, the "Sunset Act".) Petitioner, by letter dated July 2, 1979, requested a refund of the license fee paid for the eighteen-month period of July, 1979, through December, 1981. On October 22, 1979, Gerald A. Lewis, Comptroller, advised Petitioner of the Respondent's notice of intent to deny his refund. That notice alleged in pertinent part that "pursuant to an Attorney General Opinion dated January 27, 197P) (AGO No. 078-14), Section 215.26, Florida Statutes, as construed by Florida Courts, provides that refunds may only be made from the funds benefited and if such fund does not have sufficient monies. . . to make the requested refunds, then the refunds cannot be made absent a specific legislative appropriation or claims bill." Petitioner was then advised that the fund benefited by the license payment did not have sufficient monies to pay the requested refund and, therefore, the request would be denied. Florida Statutes 215.26(1)(a) provides in pertinent part that the Comptroller of the State may refund to the person who paid same . . . any monies paid to the State Treasury which constitute: An overpayment of any tax, license or account due. Petitioner introduced into evidence the financial statement for the Board of Registration for Foresters for the quarter ending October 31, 1979, which indicates that as of October 31, 1979, the Board of Foresters had total net resources available of $17,767.91. (Petitioner's Composite Exhibit 1.) At the time Petitioner remitted his payment, the amount remitted was correct under the laws and applicable rules of the Board of Registration for Foresters then in effect. Rule 211-2.06, Rules of the Board of Registration for Foresters, Florida Administrative Code. However, the parties also further agree that the payment tendered was a regulatory fee (as contrasted to a tax) and was used to defray the cost of regulation, and not as a general revenue producing measure. As such, the monies were deposited in a regulatory trust fund which of course reflects the fact that monies are available in said fund and which, in this instance, can be used as a refund for any overpayments. It is further undisputed that the period of regulation was for a two-year period while the regulation only lasted six months. In view of these factors, Section 215.26(1))a), Florida Statutes, authorizes a refund of an overpayment such as was paid by the Petitioner in this case. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's refund request of July 2, 1979, be GRANTED. RECOMMENDED this 3rd day of March, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
