The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated December 20, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of the administrative complaint, the Respondent has held teaching certificate number 390667. That certificate was issued by the Department of Education and covers the areas of driver education, physical education, and kindergarten through eighth grade. Respondent's current teaching certificate expires on June 30, 1991. At all times material to the allegations of the administrative complaint, the Respondent was an annual contract teacher employed by the School Board of Dade County, Florida (Board). Respondent began teaching in the public school system upon employment by the Board in 1986. Prior to that time Respondent had pursued other career options. At the beginning of the 1988/89 school year, Respondent was assigned to West Homestead Elementary School where he taught physical education. Subsequent to an investigation regarding allegations at that school, Respondent was administratively reassigned to teach a half day at Cypress Elementary School. In the mornings, Respondent taught at another school, then he went to Cypress Elementary for the remainder of the day. Prior to assuming his teaching responsibilities at Cypress Elementary in October, 1988, Respondent met with Judith Martin. Ms. Martin, the principal at Cypress Elementary, instructed Respondent that he was not to touch the students assigned to his classes. Ms. Martin advised Respondent that she expected him to exhibit professional conduct and to show respect toward the children. Respondent acknowledged that he understood he was to refrain from improper conduct, and asserted that he was a very good teacher. In January, 1989, Ms. Martin received complaints from female students in Respondent's class that he had inappropriately touched them on the back or arms. When Ms. Martin met with Respondent regarding the allegations and made him aware of the students' discomfort with his conduct, he explained that he is a "touchy" person and that his manner of teaching sometimes required putting his hands on a student but that it was not done in an inappropriate way or intended to make them uncomfortable. At that time, Ms. Martin reminded Respondent that he was not to touch students or to embarrass them. Anette DuQuesne was a sixth grade student in Respondent's class during the 1988/89 school year. On one occasion, Respondent directed Anette to remove her jacket when she did not wish to take it off. The jacket did not interfere with her play and she did not wish to remove it since her shirt was too big and she felt she would be exposed. Respondent insisted that she remove her jacket and told her that there was nothing (referring to her breasts) there to see. The comment was made in front of Anette's classmates and embarrassed and angered her. Mike Quintana, Gievan Rodriguez, and Roger Perez were fourth grade students assigned to Respondent's class during the 1988/89 school year. On one occasion, Respondent directed the students, who were engaged in a tug-of-war, to let go of the rope. When the students continued to pull, Respondent went down the rope separating the students from the rope. To accomplish that separation, Respondent struck Mike, Gievan, and Roger in the chest area with his hands, forearms, or elbows. The students were not seriously injured but were hurt to the point of tears by the blows struck by Respondent. The activity described in paragraph 8 occurred after Respondent had been directed for a second time to refrain from touching students. Respondent presented no credible explanation for why it was necessary to separate the students from the rope in such a manner. Respondent admitted that Gievan (who was crying) approached him regarding the incident and complained about being struck by Respondent's elbow. The physical education grounds at Cypress Elementary are immediately adjacent to a Dade County public park. On one occasion, park employees removed a malalucca tree which was next to the park's tennis courts. A backhoe used to pull the tree stump repeatedly came onto school property and crossed the Cypress track. During the tree removal process, Mr. McCauley, a physical education teacher at Cypress Elementary, observed that students from Respondent's class were running the track in an area dangerously close to the backhoe. Mr. McCauley observed that one of Respondent's students dodge the backhoe at a close range. Mr. McCauley advised Respondent of the problem so that he could take corrective measures. Despite being made aware of the dangerous condition, Respondent allowed and, in fact, directed his students (all of whom were elementary school ages) to continue running the track. Respondent's warning to the students (to be aware of the backhoe and to run further in) was inadequate given their ages and the alternatives available to Respondent. After a second warning from Mr. McCauley, Respondent continued to allow his students to run the track. Subsequently, Mr. McCauley reported the incident to a school administrator. Following an investigation of the allegations against him, school officials removed Respondent from Cypress Elementary in April, 1989. Respondent was given a non-student contact assignment at an area office. When his contract with the Board expired in June, 1989, Respondent was not offered a contract for the following school year. Respondent did not intentionally touch female students to make them feel uncomfortable. However, touchings did occur after Respondent was directed to refrain from such conduct. Respondent maintained that pats on the back or shoulder were done out of praise for something well done and that boys and girls were treated similarly. Since June, 1989, Respondent has been self- employed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission enter a final order suspending the Respondent's teaching certificate for a period of one year. DONE and ENTERED this 3rd day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 3rd day of August, 1990. APPENDIX TO CASE NO. 90-1391 RULINGS ON THE PROPOSED FINDINDS OF FACT SUBMITTED BY THE COMMISSION: Paragraphs 1 through 4 are accepted. With regard to paragraph 5 it is accepted that the Respondent struck the students. Whether he did so with his hands or his forearms or elbows is unclear; however, the blows were of a sufficient force to cause the students to cry. Paragraph 6 is rejected as irrelevant. Paragraphs 7 through 9 are rejected as recitation of testimony, repetitive, or irrelevant. To the extent that paragraph 10 describes Respondent's admission that he went through the tug-of-war line separating the students off the rope, it is accepted; otherwise rejected as irrelevant. Paragraph 11 is accepted. Paragraph 12 is accepted but is irrelevant. Paragraphs 13 through 15 are accepted. To the extent addressed in findings of fact paragraphs 10 and 11, paragraphs 16 and 17 are accepted; otherwise rejected as irrelevant. Paragraphs 18 and 19 are rejected as argument, comment, or irrelevant. Paragraph 20 is accepted but is irrelevant. To the extent addressed in findings of fact paragraph 7, paragraphs 21 and 22 is accepted; otherwise rejected as irrelevant or recitation of testimony. Paragraph 23 is rejected as not supported by the weight of the evidence. It is accepted that the children complained about Respondent, but it is not found that Respondent committed the acts complained of with an intention to embarrass or disparage the students nor for some other inappropriate purpose. Paragraphs 24 through 27 are accepted but see findings of fact paragraph It is not found that Respondent actually was touching the students in an inappropriate way or for an inappropriate reason; it is not disputed that the students perceived that Respondent was acting inappropriately. The accuracy of those perceptions has not been established by clear and convincing evidence. Paragraph 28 is rejected as irrelevant. The first two sentences of paragraph 29 are accepted; otherwise rejected as irrelevant or hearsay. The last sentence of paragraph 30 is accepted; otherwise rejected as irrelevant. Paragraphs 31 and 32 are accepted. Paragraph 33 accurately recites Dr. Gray's opinion, but is rejected since the factual basis for that opinion has not been established in total, by clear and convincing evidence. Dr. Gray's opinion has been considered to determine a recommendation since the Commission has established by clear and convincing evidence a violation of law or rule. Paragraph 34 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is accepted but is irrelevant. Paragraph 2 is rejected as contrary to the weight of credible evidence. Paragraph 3 is accepted. With the exception of the last sentence which is rejected as contrary to the weight of the evidence, paragraph 4 is accepted. Paragraph 5 is accepted. Paragraph 6 is accepted. COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 Martin Schaap, Administrator Professional Practices Services 325 West Gaines Street Room 352 Tallahassee, Florida 32399 Craig R. Wilson Suite 315 1201 U.S. Highway 1 North Palm Beach, Florida 33408-3581 William DuFresne DuFRESNE AND BRADLEY 2929 S.W. Third Avenue, Suite One Miami, Florida 33129
The Issue Whether Respondent, Greenway Nursery, Inc. (“Greenway”), is liable to Petitioner, Huntsman Tree Supplier, Inc. (“Huntsman”), for the purchase of landscaping trees, and, if so, in what amount.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Huntsman is a Florida corporation for profit, located in Lake City, and engaged in the business of commercial tree farming. Its owners are James and Michelle Huntsman. Mr. Huntsman is the president of the company and Ms. Huntsman is the secretary. Greenway is a Florida corporation for profit, located in Morriston, and engaged in the business of commercial nursery and landscaping. Its owner and president is Brian D. Love. At issue in this proceeding are two deliveries of trees from Huntsman to Greenway, one on March 12, 2015, and one on June 23, 2015. The invoice for the March 12 delivery indicates that it was billed to Greenway. It is for 12 East Palatka holly trees, 65 gallons each. The trees are billed at the rate of $240 each, for a total bill of $2,880. The invoice indicates that Greenway took delivery of the trees by customer pick-up. The invoice for the June 23 delivery also states that it was billed to Greenway. The invoice includes one ligustrum, eight feet in height, for $200; one 2.5-inch DBH1/ slash pine for $130; two 4-inch live oaks with a height of 14 to 16 feet for $250 each; and one cypress for $240. The total amount of the invoice is $1,070. Again, the invoice indicates that Greenway took delivery by picking up the trees. All of the trees in both invoices were destined for a landscaping project at Adena Golf and Country Club in Ocala (“Adena”). Both parties were involved in planting trees in different areas of the Adena property. The parties’ course of dealing until June 2015, was not completely explained at the hearing. It was clear that Huntsman would directly bill Greenway for the trees and that Greenway would take delivery of the trees by pick-up. It was unclear whether Huntsman expected to receive payment directly from Adena or whether Greenway would pay Huntsman for the trees from payments Greenway received from Adena. In any event, Greenway accepted the billings and took delivery of the trees in each instance, thus accepting ultimate responsibility for payment to Huntsman. In its answer to the Complaint, and again at the final hearing, Greenway admitted liability for the $2,880 stated in the March 12 invoice. Mr. Love agreed to pay Huntsman that amount within 15 days of entry of the final order in this case. However, Greenway denied liability for the $1,070 stated in the June 23 invoice. Mr. Love stated that his company was not liable for these trees because they were not part of his project with Adena. He stated that he installed these trees to replace trees on the Adena property that had died, but that the dead trees had not been the responsibility of his company. Ms. Huntsman denied that the dead trees had been installed in the area of the Adena property where her company was working. She testified that Adena’s representative told her that she should seek payment from Greenway because the June 23 tree delivery constituted “warranty work.” Greenway had planted trees on the Adena property that had died, and Adena considered Greenway the warrantor of those trees and therefore liable for their replacement. Based on all of the testimony, it appears that Huntsman found itself in the middle of a dispute between Greenway and Adena as to whether Greenway had warranted the trees that died, and became aware of the dispute only after it had billed and delivered the trees to Greenway in accordance with the parties usual course of dealing. The evidence was insufficient to establish that Huntsman had any responsibility for, or prior knowledge of, the dead trees. It will be left to one or the other of these parties to take up the issue of payment with Adena. Fundamental fairness dictates that this burden should fall to Greenway. Greenway had the warranty dispute with Adena that caused this controversy. Greenway accepted the bill of lading and the invoice for the June 23 shipment, and took delivery of the trees in accordance with the parties usual course of business. As the innocent supplier of the trees, Huntsman should be made whole.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Huntsman Tree Supplier, Inc., against Greenway Nursery, Inc., in the amount of $4,000. DONE AND ENTERED this 12th day of April, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2016.
The Issue The issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176. On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent. The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained. Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle. At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did. As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here. The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly. On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization. As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989. When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site. Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17- 321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%. At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989. On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened. As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke. This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued. Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts. Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang. In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing. According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves. This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County. Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued. Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company. Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found. He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate. Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off. It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00. RECOMMENDED this 8th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of April, 1991. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank W. Miller 20 Dover Drive Englewood, Florida 34223 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times pertinent to the allegations in issue, the Respondent was licensed as a real estate broker in Florida. However, since April 28, 1989, his broker's license has been nonactive. The Petitioner, Division of Real Estate, is the state agency responsible for the policing of and administration of rules governing the real estate profession in Florida. In May, 1987, Mary Louise Hockman and her husband, Elden D. Hockman, now deceased, were interested in purchasing a flea market somewhere in Florida. A requirement was that it have additional acreage on which a recreational vehicle park could be established. At just about that time, Rickey L. Reynolds, a family friend, told them of the Cypress Hut, a Florida corporation, which owned and operated a flea market near Okeechobee, Florida. The property in question was sufficiently large to accommodate a recreational vehicle park. The Hockmans went to look at the property in question and, satisfied with what they saw, made an offer to buy it through the Respondent who was the agent for the owner, Mr. James Evans. This offer was memorialized in a purchase and sale agreement executed on May 23, 1987, signed by Mrs. Hockman and Mr. Reynolds, her partner, as buyers, and the Cypress Hut Flea Market, through James H. Evans, as seller. The purchase price was $550,000.00. Ten Thousand dollars was paid by Mrs. Hockman to the Respondent as an initial down payment. An additional $117,500.00 was to be paid at time of closing, and the remaining $422,500.00 was to be payable on a semiannual basis at 8% interest. The agreement also called for a commission of $27,500.00 to be paid to the Respondent, secured by a note between the buyer and the broker. Closing was to take place at a reasonable time after all contingencies, outlined separately, were fulfilled. These contingencies were memorialized in an addendum to the purchase and sale agreement signed by both the buyer and the seller on May 29, 1987. They included: Buyer's inspection and approval of all books and records of the corporation, Approval of a 55 unit recreational vehicle camp ground by county and city zoning officials, including environmental approval, and Seller's providing a survey proving that 17.2 acres was contained in the total real estate parcel to be conveyed. The addendum also provided that in the event these contingencies could not be satisfied to the buyer's "full satisfaction", all earnest money would be returned immediately to the buyer upon written demand. To satisfy these requirements, the seller provided the Hockmans with several sheets of paper containing yearly figures for the operation of the flea market. These figures did not constitute the full books and records of the corporation relating to the flea market operation and were not satisfactory to the Hockmans. The Hockmans were also provided with several 1983 applications submitted by Cypress Hut corporation to the county zoning officials, which were subsequently approved, for the establishment of a mobile home park on the property. A mobile home park approval is sufficient approval for the establishment and operation of a recreational vehicle park. However, the Hockmans were never provided with a survey clearly defining the extent of the real property in question. On September 21, 1987, Mrs. Hockman wrote to the Respondent indicating that if the formal contract for the sale was not signed by October 1, 1987, they would consider their offer withdrawn and demand a return of the earnest money paid, plus interest. This letter, sent to the Respondent by certified mail, was received by Respondent's wife who signed for it. Respondent claims, however, that he never received it. He and his wife were separated at the time, he was not living with her, and she neither gave it to him nor told him it had arrived. Respondent's wife was not called to verify his claim, but Petitioner was unable to present any evidence to disprove it, and it is accepted as fact. Nonetheless, on or about September 27, 1987, Mrs. Hockman personally spoke with the Respondent at the Cypress Hut Flea Market and directly reiterated to him the substance and terms of that letter she had sent him. In response, Respondent indicated he would speak to Mr. Evans about the Hockmans' demand. Shortly thereafter, Respondent wrote to Mr. Hockman, referring to an alleged statement by Hockman's attorney that all contingencies had been satisfied, and acknowledging that Cypress Hut was ready and willing to close as of October 1, 1987. No independent evidence of such an opinion by Hockman's attorney was forthcoming and that claim is found to be without merit. Enclosed with Respondent's letter, was a letter he had received from Evans making a demand upon him for the disbursement of the earnest money, based on Hockman's indication of no further interest in going through with the purchase. Notwithstanding this direct notice, neither Mr. Evans nor the Respondent contacted the Hockmans prior to October 1, 1987, and after that date, the Hockmans made several telephone calls to the Respondent which went unanswered. Finally, because they had made plans to go on vacation, they departed the area and were assured by Mr. Reynolds, their partner in the proposed purchase, that he would contact Respondent in their absence. Respondent denies he did and there is, again, no evidence to the contrary. When the Hockmans returned to the area, they contacted Respondent and advised him again that they wanted their earnest money refunded as they were considering the agreement void. Respondent did not repay the money in question. Instead, on October 13, 1987, he withdrew the $10,000.00 paid to him by the Hockmans, which he had placed in his escrow account pending closing, and on October 15, 1987, purchased a cashier's check in the amount of $5,000.00 payable to James H. Evans. This represented one-half of the earnest money paid by the Hockmans. He converted the other $5,000.00 to his own use. Respondent justifies doing this on the basis of a previous phone call he claims to have made to the Division of Real Estate in which he outlined the circumstances and sought the Division's guidance. He states he was advised by a gentleman, further unidentified, who indicated he had two options: to forward the money to the Division for agency arbitration of the dispute between the Hockmans and Mr. Evans, or to adhere to the terms of the agreement, consider the deposit forfeited, disburse the funds to the seller and himself, and rely upon the courts to determine, upon claim filed by the buyer, who was entitled to the funds. He chose the latter though it is found to be unlikely he got such advice. Suit was thereafter filed by Mrs. Hockman against not only the Respondent but also the Cypress Hut. Respondent chose not to retain counsel but to rely on counsel for his co-defendant to represent him. Prior to hearing, however, the claim against Cypress Hut was abandoned, its counsel released, and Respondent was left as sole defendant. He still did not seek a delay to retain counsel and at the very brief hearing held before the Circuit Judge in December, 1988, a Judgement was entered against him in favor of Mrs. Hockman for the full $10,000.00, plus interest and costs. With knowledge of the terms of the Judgement, Respondent still has not satisfied it through reimbursement of Mrs. Hockman, claiming he has no assets with which to do so. Discovery in aid of execution revealed he had no assets, either realty or personalty, upon which to execute since all his assets were transferred to his wife prior to suit. When Mrs. Hockman filed her initial complaint with the Division, an investigation was conducted by Mr. Maye who recommended that action be taken against Respondent based on evidence of violations. However, it would appear that a contrary position was taken by the Division which advised Respondent, in writing, that a determination of no probable cause had been made. However, after the judgement was entered against Respondent, the Division reversed itself and filed the instant Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, GEORGE RICHARD MCKOWEN's license as a real estate broker in Florida be suspended for three years, that he pay an administrative fine of $3,000.00, and that he be reprimanded. RECOMMENDED this 20th day of March, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 20th day of March, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire DPR-Division of Real Estate 400 W. Robinson Street P. O. Box 1900 Orlando, Florida 32802 George Richard McKowen 3503 14th Street, West, #76 Bradenton, Florida 34205 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue The issue for determination in this case is whether Rules 28-25.004 and 28-25.006(1), Florida Administrative Code, are vague and arbitrary as defined in Sections 120.52(8)(d) and (e), Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, SEWELL CORKRAN, is a resident of Collier County, Florida, and past President of the Collier County Audubon Society. Petitioner’s standing to bring this action was not contested. Respondent, ADMINISTRATION COMMISSION, is the agency of the State of Florida vested with the statutory authority for the promulgation of Rules 28-25.002, et seq., Florida Administrative Code, pertaining to conservation and development within the Big Cypress Area. The DEPARTMENT OF COMMUNITY AFFAIRS (hereinafter AGENCY) is duly authorized to represent the ADMINISTRATION COMMISSION in these proceedings. Rules 28-25.004 and 28-25-006(1), Florida Administrative Code, set forth below, were adopted on November 28, 1973. Stipulated Facts There have been no examples of development in the Big Cypress Area of Critical State Concern such as that described by Petitioner, wherein lands that have been totally altered, have been one-hundred percent developed subsequent to agriculture. Development of ten (10) percent of a site in the Big Cypress Area of Critical State Concern is a reasonably acceptable amount of development. Agency Administration of Rule Chapter 28-25 As indicated above, Rule Chapter 28-25, Florida Administrative Code, was initially promulgated in 1973 pursuant to Section 380.05, Florida Statutes, for the purpose of protection and conservation of the Big Cypress Area of Critical State Concern (ACSC). The challenged agricultural exemption applicable to the Big Cypress ACSC is set forth in Rule 28-25.004, Florida Administrative Code, which provides: Agricultural Exemption. The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products, raising livestock or for other purposes directly related to all such uses are exempt from these regulations. However, whenever any person carries out any activity defined in Section 380, Florida Statutes, as development or applies for a development permit, as defined in Section 380, Florida Statutes, to develop exempted land, these regulations shall apply to such application and to such land. The challenged site alteration provisions of Rule 28- 25.006(1), Florida Administrative Code, limit such development to ten percent providing: Site Alteration. Site alteration shall be limited to 10% of the total site size, and installation of non permeable surfaces shall not exceed 50% of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The AGENCY construes Rules 28-25.004 and 28-25.0061, Florida Administrative Code, as complementary. Pursuant to the agency’s construction and application of these rules, if a parcel of land is exempted for agricultural purposes, and is then altered for development purposes as defined in Section 380.04, Florida Statutes (1995), that development, pursuant to Rule 28- 25.006(1), Florida Administrative Code, would be limited to only ten percent of the total site size. Under the agency’s construction and application, the rules are not mutually exclusive, and regardless of an agricultural exemption, development will only be allowed on a maximum of ten percent of the total parcel. The agency makes no distinction made between whether the site is pristine or has been previously disturbed. The construction and application of the rules by the agency has been consistent. In implementing these rules development has been limited to only ten percent of a total site. There is no evidence of any instances in which a site that had been altered under the agricultural exemption was subsequently altered for development purposes to an amount greater than ten percent. There is no evidence that such a subsequent alteration from agriculture to development has ever been attempted. The agency reviews all development orders that are issued in the Big Cypress ACSC based upon established guidelines and standards. The evidence reflects that currently the AGENCY is in the process of appealing a development order issued by Collier County concerning Rule 28-25.006(1), Florida Administrative Code, which involves a request for development of a site previously disturbed by a spoil bank. In that case, the amount of land to be developed was proposed to be in excess of ten percent. The requested conversion was not from agricultural to development, as that term is defined in Section 380.04, Florida Statutes (1995). Because the spoil bank disturbed more than ten percent of the total site, the agency appealed the development order. The record indicates that this appeal is currently going through settlement negotiations wherein development will be limited to ten percent, regardless of the size of the disturbed area created by the spoil bank. The agency considers a number of factors when amending a rule. One of the factors is whether there has been much controversy associated with the rule, which would be one indication that the rule is so vague as to cause confusion in its understanding and inconsistency in its application. This has not been the case where these Big Cypress ACSC rules have been applied. County land development regulations may be stricter then rules promulgated or approved by the AGENCY, pursuant to Rule 28-25.013, Florida Administrative Code, which provides: In case of a conflict between Big Cypress Critical Area regulations and other regulations which are a proper exercise of authority of a governmental jurisdiction, the more restrictive of the provisions shall apply. Collier County’s Land Development Regulation 3.9.6.5.1(7) is more restrictive than Rule 28-25.004, Florida Administrative Code, which deals with the site alteration exemption for agricultural purposes. The following conditions, as applicable, shall be addressed as part of and attachments to the agriculture land clearing application: * * * (7) The property owner, or authorized agent, has filed an executed agreement with the development services director, stating that within two years from the date on which the agricultural clearing permit is approved by the development services director, the owner/agent will put the property into a bona fide agricultural use and pursue such activity in a manner conducive to the successful harvesting of its expected crops or products. The agency does not have statutory authorization to regulate agriculture, which is explicitly exempted from the definition of development in Chapter 380, Florida Statutes (1995), in the Big Cypress Area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Petition filed in this matter is hereby DISMISSED. DONE and ORDERED this 21st day of April, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1997. COPIES FURNISHED: Sewell Corkran 213 9th Avenue South Naples, Florida 33940-6847 Bob Bradley Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Liz Cloud, Chief Bureau of Administrative Code Department of State The Elliott Building Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
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 or about April 29, 1987, Steve Brill, who is a project manager and landscape architect employed by Respondent, placed an order with Petitioner, on behalf of Respondent, for various trees. The order was never reduced to writing by Respondent. Respondent ordered six dogwoods, one 18-foot ilex, three 13-foot ilex, 14 laurel oaks, and two ligustrums. Sandra Couey, who took the telephone order for Petitioner, informed Mr. Brill that he could have a higher quality $350 ligustrum or a lower quality $200 ligustrum. He chose the cheaper tree. Mr. Brill requested 18-foot dogwoods, but Ms. Couey informed him that the largest she had was 12 feet. On May 14, 1987, Respondent's driver picked up the trees at Petitioner's nursery. Ms. Couey had removed the ilex from the shipment because these trees, which had been purchased by her from another nursery, were of poor quality. The driver left a check in the amount of $3003, which, by prior agreement of the parties, was not to be deposited for 30 days. Alberto Ribas, president of Respondent, had asked Ms. Couey on the prior day to hold the check until the customer paid Respondent. Immediately upon receiving the shipment, Mr. Brill and Mr. Ribas noticed that the dogwoods were 12 feet and that the quality of the ligustrums were, in Mr. Brill's words, "shaky." Petitioner and Respondent did not communicate again until June 3, 1988, when Ms. Couey telephoned Mr. Ribas to see if she could deposit the check one week early. During the June 3 conversation or shortly thereafter, Mr. Ribas first complained to Ms. Couey about the quality of the trees. He stopped payment on the check and advised Ms. Couey that he intended to procure replacement trees elsewhere, for which Petitioner would be liable, if she did not replace the trees within seven days. Respondent ordered and Petitioner delivered six dogwood trees for a total agreed-upon price of $720, 14 laurel oak trees for a total agreed-upon price of $840, and two ligustrum trees for a total agreed-upon price of $400, which, plus tax, comes to a total of $2058. To date, Respondent has paid nothing of this amount.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring Respondent to pay Petitioner the sum of $2058. DONE and RECOMMENDED this 30th day of September, 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 30th day of September, 1988. APPENDIX Treatment Accorded Respondent's Proposed Findings 1-2. Adopted. 3. First sentence adopted. Second sentence rejected as irrelevant. The dogwoods met the requirements of the contract or agreement between Petitioner and Respondent, regardless whether they met the requirements of Respondent's job. 4-5. Adopted in substance. 6-7. Rejected as irrelevant and against the greater weight of the evidence. 8. Adopted in substance. COPIES FURNISHED: Sandy D. Couey, Owner Southern Trees, Inc. Route 1 Box 60-J High Springs, Florida 32643 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 Has Respondent Kelly Marinaro, d/b/a Sunny Fresh Citrus Export and Sales Company (Sunny) paid Petitioner Frances A. Oakes and Daniel Holder, d/b/a Oakes Produce Company (Oakes) in full for watermelons (melons) purchased from Oakes during the 1996 melon season which are represented by Sunny/Oakes purchase order numbers 93981/4051, 93905/4063, 93921/4064, 94006/4066, and 93941/4096?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Oakes was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. Melons come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. At all times pertinent to this proceeding, Sunny was licensed as a "dealer in agriculture products" as that term is defined in Section 604.15(1), Florida Statutes. Sunny was issued license number 831 by the Department, which is supported by bond number BND-262218 in the amount of $29,000, written by American, as surety, with an inception date of May 1, 1996, and an expiration date of April 30, 1997. The complaint was timely filed by Oakes in accordance with Section 604.21(1), Florida Statutes. Sometime before June 27, 1996, the parties entered into an oral agreement wherein Oakes would harvest and load melons onto trucks furnished by Sunny at locations specified by Oakes. The agreement provided that: (a) Oakes would guarantee the quality of the melons to be the quality required under a "good delivery" standard at the time of delivery to Sunny's customers, subject to any transit problems or delays in arrival at the customer's location; (b) Sunny would pay Oakes Produce 4.5 cents per pound for the melons loaded onto the trailers and delivered to Sunny's customers; (c) Sunny would be responsible for the cost of delivering the melons to its customers; and (d) settlement was to be made by Sunny within a reasonable time. Frances Oakes testified that Sunny agreed to pay 5 cents per pound for the load of melons represented by Sunny/Oakes purchase order number 94006/4066. However, the more credible evidence is that the agreed upon price for this load of melons was 4.5 cents per pound. Likewise, Kelly Marinaro testified that it was agreed that if the melons did not met the agreed upon quality standard upon delivery to its customers that Oakes would be responsible for all cost of delivery, including freight. However, the more credible evidence is that this was not agreed upon and was not part of the oral agreement. Oakes did not advise Sunny that it would give Sunny "full market protection" on the melons, or that Sunny was to handle the melons "on account" for Oakes. The more credible evidence shows that the watermelons were purchased by Sunny with title to the melons passing to Sunny upon delivery to Sunny's customers and meeting the agreed upon quality standard. 8 Under the terms of the above oral agreement, Oakes loaded 9 loads of melons onto trucks furnished by Sunny that were shipped to Sunny's customers. Oakes alleged in the complaint that Sunny had failed to pay Oakes for 6 of the 9 loads and owed a balance of $9,521.36. However, at the beginning of the hearing, Oakes withdrew from the complaint the load of melons represented by Sunny Oakes/Oakes purchase order number 93924/4069 in the amount of $1,976.40 leaving an alleged balance owed to Oakes by Sunny of $7,544.96. The 5 loads of melons left in contention are the loads represented by Sunny/Oakes purchase order numbers 93891/4051, 93905/4063, 93921/4064, 94006/4066, and 93941/4096, in the amounts of $1,778.66, $2,044.80, $1,859.40, $91.70, and $1,770,40, respectively. Sunny contends that the melons on the loads represented by Sunny/Oakes purchase order numbers 93891/4051, 93905/4063, 93921/4064, and 93941/4096 arrived at their destination in a condition below the agreed upon quality standard which resulted in prices received by Sunny of less than the agreed upon price of 4.5 cents per pound. Based on this contention, Sunny deducted the freight, other applicable costs and its sales charge from the amount alleged to have been received for the melons represented by Sunny/Oakes purchase order numbers 93905/4063, 93921/4064, and 93941/4096, which resulted in Oakes not receiving any payment from Sunny for those melons. In fact, each of the 3 loads of melons showed a negative balance which was charged against other loads with a positive balance. The price received by Sunny for the load of melons represented by Sunny/Oakes purchase order number 93891/4051 resulted in a balance owed Oakes of $547.50 after deductions for freight and other charges. However, in making payment to Oakes, Sunny charged the negative balances of the loads represented by Sunny/Oakes purchase order numbers 93905/4063, 93921/4064 and 93941/4096 against Sunny/Oakes purchase order number 93891/4051, which resulted in Oakes not receiving any payment for this load. 13 As to the load represented by Sunny/Oakes purchase order number 94006/4066, Sunny paid Oakes $825.30, which represents 4.5 cents per pound for 18,340 pounds without any deduction for loads with negative balances. Oakes has been paid in full for this load. There was insufficient evidence to show that the melons represented by Sunny/Oakes purchase order numbers 93891/4051, 93905/4063, 93921/4064, and 93941/4096 did not meet the agreed upon quality standard upon arrival at their destination. There was no dispute as to the weight of the melons. Sunny furnished Oakes trouble reports on the 4 loads of melons represented by Sunny/Oakes purchase order numbers 93981/4051, 93905/4063, 93921/4064, and 93941/4096, indicating problems with the condition of the melons and that the loads would have to be "worked" in order to "move" the melons. Kelly Marinaro testified that either he or employees of Sunny had discussed at least 3 of these reports with Frances Oakes, and that he had authorized Sunny to do what was necessary to move the loads of melons. Frances Oakes testified that he had seen these trouble reports and had discussed at least some of them with either Kelly Marinaro or Sunny's employees. However, Frances Oakes further testified that he was not aware that there was a severe problem with the melons. The more credible evidence is that Kelly Marinaro or an employee of Sunny's discussed these trouble reports with Frances Oakes, and that Frances Oakes authorized Sunny to find someone to "work" the melons. In disposing of the melons, Sunny received less than the agreed upon price of 4.5 cents per pound. Therefore, Sunny deducted the freight, other applicable costs, and Sunny's sales charge which resulted in a negative balances of $81.84, $582.35, and $345.02 for loads represented by Sunny/Oakes purchase order numbers 93905/4063, 93921/4064, and 93941/4096, respectively. There was a positive balance of $547.50 for the load of melons represented by Sunny/Oakes purchase order number 93891/4051. By check dated August 1, 1996, Sunny made an accounting to Oakes which included the loads of melons in dispute and others that were not in dispute. Each purchase order number was listed on the check stub with either a positive or negative amount. The check was in the amount of $4,413.34. This amount was calculated by adding positive amounts and subtracting negative amounts. This was clearly shown on the check stub which Oakes received. On the back of this check Kelly Marinaro had clearly printed "Troubled Settlements Payment In Full" Using its deposit stamp which was stamped directly beneath the language "Troubled Settlements Payment In Full," Oakes deposited this check.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order dismissing Oakes' complaint. DONE AND ENTERED this 18th day of July, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1997. COPIES FURNISHED: Honorable Bob Crawford Commission of Agriculture The Capitol, Plaza Level-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0810 Frances A. Oakes, pro se 2722 Edson Avenue Fort Myers, Florida 33916 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, Florida 33806 Robert Walman Claims Management Services American Bankers Insurance Company of Florida 11222 Quail Roost Drive Miami, Florida 33157
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioners in the amount of $999.40 for limes grown by Petitioners and picked and sold by Respondent southeast?
Findings Of Fact Petitioners Donald R. Fox, Jr., and Delores W. Fox d/b/a Don Fox Groves are growers 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 25 and August 5, 1988, Southeast picked 337.2 bushels of limes grown by Petitioners. There is no dispute as to the number of bushels of Petitioners' limes picked by Southeast. Petitioners dispute 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. No competent, substantial evidence was offered in support of the prices Petitioners claim Southeast received (or should have received) for the limes as to six of the seven separate pickings in question in this cause. In four instances, Southeast paid Petitioners a higher price per bushel than they claim. Petitioners claim that 100% of each picking was saleable citrus. Southeast's records reflect that Petitioners were given credit for 100% of their limes on one of the seven pickings. For the remainder of the pickings, however, Southeast gave them credit for as little as 33.1% of the bushels picked and as high as 89.4% of the bushels picked. No competent, substantial evidence was offered to justify Petitioners' selection of 100% for all seven pickings. The 100% figure selected by Petitioners 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 100% of them will be marketable. Petitioners agree that Southeast is entitled to charge them picking and inspection fees to be deducted by Southeast from the sale price of the limes before crediting petitioners with the balance of the sale price. Petitioners further agree that the picking and inspection fees for the pickings involved in this cause should be deducted from the monies they claim Southeast still owes them. No competent, substantial evidence was offered by Petitioners as to the amount of picking and inspection fees Petitioners claim to be correct. The picking and inspection fees charged to Petitioners by Southeast are, therefore, the correct amounts as to six of the seven pickings. As to lime pool #829 for the week ending July 18, 1988, Petitioners claim a sales price of $2.16 for each of the 86.6 bushels picked by Southeast that week. They also claim that 100% of those limes were marketable. Southeast agrees it picked 86.6 bushels of Petitioners' limes that week. However, Southeast has no records regarding the price for which it sold those limes, the percentage of those limes which were marketable, and the amount of picking and inspection fees paid by Southeast for Petitioners' limes in lime pool #829. Accordingly, Petitioners are entitled to receive additional payment from Southeast in the amount of $187.06, which represents a sale price of $2.16 for each of the 86.6 bushels of limes picked and then sold by Southeast. No deductions for inferior quality limes and no deductions for picking and inspection fees are proper since Southeast cannot prove its entitlement to make any deductions.
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 Petitioners Donald R. Fox, Jr., and Delores W. Fox d/b/a Don Fox Groves in the amount of $187.06 and that such monies should be paid to them within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida: this 31 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 31 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 Donald R. Fox Delores W. Fox 26101 Southwest 207th Avenue Homestead, Florida 33031 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 At issue in these consolidated proceedings is whether certain development orders (permits) issued by Monroe County to the respondents, as owners and Your Local Fence, Inc., as contractor, for the construction of fences in the Big Pine Key Area of Critical County Concern are consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Respondents, Charles and Kathleen Moorman (Moorman), Nicholas and Jean Hornbacher (Hornbacher), James and Kathryn Daniels (Daniels), and Raymond and Rosemarie McRae (McRae), are the owners of certain real property, described more full infra, that is located within the Big Pine Key Area of Critical County Concern and the Florida Keys Area of Critical State Concern, and upon which they have received development orders (permits) from Monroe County to erect fences. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business owned by Mr. Moorman and is the contractor that applied for the permits on behalf of the Moormans, Hornbachers and Daniels. The McRaes applied for their own permit, and proposed to install the fence themselves. Respondent, Monroe County, is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statutes. Here, the Department has filed a timely appeal to the issuance of the subject permits, and contends that construction of the fences authorized by such permits is inconsistent with the Monroe County comprehensive plan and land development regulations. The Moorman permit The Moormans are the owners of Lots 15, 16 and half of Lot 17, Block D, Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is located within, and surrounded by, native pine lands; natural habitat for the Key Deer. On March 20, 1991, Monroe County issued to the Moormans, as owners, and Your Local Fence, as contractor, building permit No. 9110002231 to construct a fence on the foregoing property. As permitted, the fence would be constructed of wood to a height of 6 feet and, except for a front setback of 25 feet, would completely enclose the Moormans' property. So constructed, the fence would measure 125 feet along the front and rear of the property and 75 feet along the side property lines for a total of 400 linear feet. The Hornbacher permit The Hornbachers are the owners of Lot 23, Block 3, Eden Pine Colony Subdivision, Big Pine Key, Monroe County, Florida. Such property is located on a cul-de-sac, at the terminus of a dead end street, and is bordered on the north and west by a canal and on the east by a neighbor's fence. On May 20, 1991, Monroe County issued to the Hornbachers, as owners, and your Local Fence, as contractor, building permit No. 9110002807 to construct a fence along the south side of their property. As permitted, the fence would be chainlink construction, 4 feet high, and would extend from their neighbor's fence on the east, around that portion of their property that abuts the cul-de- sac, and then along their southern boundary to the canal. So constructed, the fence would run a total of 90 linear feet. The Daniels permit The Daniels are the owners of Lots 1 and 2, Block 72, Port Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property, when acquired by the Daniels, was bounded on three sides by a 4-foot high chainlink fence and along the rear by a canal. On July 17, 1991, Monroe County issued to the Daniels, as owners, and Your Local Fence, as contractor, building permit No. 9110003165 to construct a fence along the rear portion of their property that abuts the canal. As permitted, the fence would be of chainlink construction, 4 feet high, and run a total of 158 linear feet. The McRae permit The McRaes are the owners of Lot 6, Block 17, Port Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is bordered on the north and south by vacant lots, and on the west by a canal. On June 12, 1991, Monroe County issued to the McRaes, as owners and contractors, building permit No. 9110002853 to construct a fence along the front, as well as the north and south sides of their property. As permitted, the fence would be of chainlink construction, 4 feet high, and, except for a set back of 29.5 feet, would enclose the front and side property lines of the property. So constructed, the fence would run a total of 157 linear feet. Consistency of the permits with the Monroe County comprehensive plan and land development regulations Big Pine Key is the primary habitat of the Key Deer, an endangered species, and Monroe County has designated most of Big Pine Key, including the properties at issue in these proceedings, as an area of critical county concern. Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides: Purpose: he purpose of the Big Pine Key Area of Critical County Concern is to establish a focal point planning effort directed at reconciling the conflict between reasonable investment backed expectations and the habitat needs of the Florida Key Deer which is listed as endangered under the Federal Endangered Species Act. Focal Point Planning Program: Monroe County shall initiate a focal point planning program for the Big Pine Key Area of Critical County Concern that considers the following: The reasonable investment backed expectations of the owners of land within the Big Pine Key Area of Critical Concern; The habitat needs of the Florida Key Deer; The conflicts between human habita-tion and the survival of the Florida Key Deer; The role and importance of fresh-water wetlands in the survival of the Florida Key Deer; Management approaches to reconciling the conflict between development and the survival of the Florida Key Deer; and Specific implementation programs for the Big Pine Key Area of Critical County Concern. The focal point planning program shall be carried out by the director of plan-ning, in cooperation with the officer in charge of the National Key Deer Refuge. The planning program shall include a public participation element, and shall provide for notice by publi-cation of all public workshops or hearings to the owners of land within the Big Pine Key Area of Critical County Concern The focal point planning program for the Big Pine Key Area of Critical County Concern shall be completed with-in twelve (12) months of the adoption of this chapter, and the director of planning shall submit a report together with recommended amendments to the Monroe County Comprehensive Plan and this chapter within thirty (30) days after the completion of the focal point planning program for the Big Pine Key Area of Critical County Concern Interim Regulations: Notwithstanding any other provisions of this chapter, no development shall be carried out on the Big Pine Key Area of Critical County Concern prior to the completion of the focal point planning program required by subsection C of this section and the adoption of amendments to the Monroe County Comprehensive Plan and this chapter except in accordance with the following No development shall be carried out in the Big Pine Key Area of Critical County Concern except for single-family detached dwellings on lots in the Improved Subdivision District or on lots having an area of one (1) acre of more. And, Section 9.5-309, MCLDR, provides: It is the purpose of this section to regulate fences and freestanding walls in order to protect the public health, safety and welfare * * Big Pine Key Area of Critical County Concern: No fences shall be erected here until such time as this chapter is created to provide for the regulation of fences within this ACCC. The foregoing land development regulations were adopted by Monroe County to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. Here, such regulations further the plan's "Generic Designations and Management Policies," contained within the plan's "Criteria for Designating Areas of Particular Concern," to maintain the functional integrity of habitat and, more particularly, the requirement that: Development within areas identified as Key Deer habitat shall insure that the continuity of habitat is maintained to allow deer to roam freely without impediment from fences or other development. Rule 28-20.020(8), Generic Designations, subparagraph 4, Florida Administrative Code. Over the course of the past five years, Monroe County has discussed design criteria for fences on Big Pine Key but has not yet adopted a regulation that would provide for fences within the Big Pine Key Area of Critical County Concern, as mandated by Section 9.5-309, MCLDR, nor has Monroe County amended Section 9.5-479, MCLDR, to permit, pertinent to this case, any development except single-family detached dwellings on lots in the Big Pine Key Area of Critical County Concern. Under such circumstances, it must be concluded that the subject permits issued by Monroe County for the construction of fences in the Big Pine Key Area of Critical County Concern are not consistent with the Monroe County comprehensive plan and land development regulations. Extra legal action and the applicants voiced rationale for fencing their properties Notwithstanding express knowledge by the Moormans, Hornbachers, Daniels and Your Local Fence, that the subject permits were not effective until expiration of the time within the Department was authorized to appeal their issuance, the Moorman, Hornbacher and Daniels fences were erected by Your Local Fence. However, the McRaes, likewise knowledgeable about the time delay in the effectiveness of their permits, abided by existent law, and deferred erecting their fence pending resolution of this dispute. At hearing, proof was offered by the applicants to explain why they desired to fence their property. Proof was also offered to explain why the Hornbachers and Daniels felt a sense of exigency to erect their fences, and why they prevailed on Your Local Fence to erect such fences in the face of express notice from Mr. Moorman (the principal of Your Local Fence) that the permits were not effective and subject to appeal by the Department. According to the Hornbachers, the purpose for their fence was to keep stray dogs and their "leavings" from the yard, to keep the Key Deer that populate the area from eating their vegetation, and to keep uninvited persons and vehicles from entering their property. The later reason was of particular import to the Hornbachers since they were about to leave for their annual vacation in Michigan, and strangers had entered onto their property during their prior absences. Therefore, to provide their residence with a degree of security, they insisted the fence be installed before they left, and before their permit was effective. According to the Daniels, the purpose for their fence was primarily to provide a secure environment for their children.2 In this regard, the proof demonstrates that the Daniels are both police officers with the City of Key West and work the same shift; that they have three children, ages, 7, 4, and 2, that reside at the home and are cared for by an elderly woman in their absence; and that the canal that abuts their backyard, as well as an existent boatramp, represents a potential hazard to the children's safety. Cognizant of such hazard, which was magnified by one child having already slipped down the boat ramp, the Daniels insisted that the fence be installed, and Your Local Fence acquiesced, before their permit was effective. The Moormans offered no compelling reason for having erected their fence prior to the effective date of their permit, but did espouse its purpose. According to Mr. Moorman, the purpose for their fence was to keep the neighbors' two children from playing under his house where he had installed a hot tub, and to keep the Key Deer that populate the area from entering his property and eating any vegetation he might choose to cultivate. According to the McRaes, who have not yet erected their fence, they desire a fence to prevent neighbors' dogs from leaving "droppings" in their yard, and to keep the Key Deer from eating their plants. While each of the applicants have articulated logical reasons to fence their yards, such reasons are not relevant where, as here, the permits were issued as of right. Rather, with regard to the Big Pine Key Area of Critical County Concern, the erection of fences is strictly prohibited until such time as the plan and regulations are amended to allow such use.3 Other considerations At hearing, Mr. Moorman offered proof that the Department had failed to appeal every fence permit issued by Monroe County in the Big Pine Key Area of Critical County Concern, and contended, as a consequence of such failure, that the Department should be precluded from contesting the issuance of the subject permits. Mr. Moorman's contention is not, however, persuasive. Here, the proof demonstrates that the Department's Key West Field Office, to which Monroe County renders its permits, was established in 1983, and that from January 1, 1984 to September 15, 1986, the Monroe County land development regulations did not regulate fences on Big Pine Key and the Big Pine Key Area of Critical County Concern (BPKACCC) did not exist. Effective September 15, 1986, the Monroe County land development regulations were adopted in their current form and, among other things, created the BPKACCC and prohibited fencing within such area. Accordingly, prior to September 15, 1986, there was no prohibition against erecting fences in the BPKACCC, and no reason for the Department to question the propriety of such develop-ments.4 Since the effective date of the current regulations, the Department has, as contended by Mr. Moorman, failed to appeal some permits for fencing in the BPKACCC. Such failure was, however, persuasively shown to have occurred as a consequence of severe understaffing, which inhibited the Department's ability to review all permits issued by Monroe County in a timely fashion (i.e., before the appeal period expired), and the breach of a memorandum of understanding entered into between the Department and Monroe County, and not as a consequence of any position adopted by the Department that fencing in the BPKACCC was permissible. Accordingly, the Department's appeal of the subject permits is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area.5 Moreover, neither the applicants nor Your Local Fence made any inquiry of the Department as to why some permits were appealed and others were not, or requested that the Department waive its appeal period, prior to erecting their fences. Under such circumstances, it cannot be reasonably concluded that the Department misled any applicant so as to bar it from contesting the propriety of the subject permits, and those who chose to erect their fences knowing their permits were not yet effective acted at their peril.6
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue building permit Nos. 9110002231, 9110002807, 9110002853, and 9110003165, and deny the applications of the Moormans, Hornbachers, McRaes, and Daniels, as owners, as well as your Local Fence, as contractor, where pertinent, for such permits. It is further recommended that such final order specify that there are no changes in the subject proposals that would make them eligible to receive the permits as requested. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of April 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of Division of Administrative Hearings this 30 day of April 1992.
