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SUN COAST FARMS OF DADE, INC. vs. HOMESTEAD POLE BEAN COOP, INC., AND FLORIDA FARM BUREAU MUTUAL INSURANCE, 88-001647 (1988)
Division of Administrative Hearings, Florida Number: 88-001647 Latest Update: Jan. 05, 1989

The Issue The Issue is whether Homestead in indebted to Sun Coast for agriculture products sold under six invoices. Homestead maintains that the products it purchased were shipped to its customers, who either refused to accept them, or accepted them only after demanding a price concession from Homestead because of the poor condition of the products. Homestead remitted to Sun Coast the amount Homestead had received from its customers. The difference between the agreed sale price in the transactions between Sun Coast and Homestead and the price received by Homestead from its customers sets the amount at issue in this proceeding.

Findings Of Fact INVOICE 1527 Homestead Pole Bean bought 96 cases of fancy crook necked squash from Sun Coast on March 9, 1987, at $12.20 per crate, for a total price of $1,171.20. The squash was shipped on the same day. Homestead paid Sun Coast only $327.20, because Homestead's buyer, Veg Fresh, of Birmingham, Alabama, reported trouble with the product on March 11, 1987, when it received the squash and would not accept it at full price. The employee of Homestead who handled the sale transaction, Gary Syracuse, was not available to testify. The evidence of trouble with the squash proffered by Homestead for its failure to pay the full price for the squash to Sun Coast is unpersuasive. Because no one with knowledge of the facts testified, Homestead should pay $844.00 to Sun Coast on this invoice, to bring the total paid to the agreed price of $1,171.20. INVOICE 1528 On March 9, 1987, Homestead ordered 254 cases of fancy crook necked squash from Sun Coast at a price of $14.20 per case, for a total amount due of $3,606.80. The squash was shipped the same day. A number of Homestead's customers either refused to accept delivery of the squash or demanded a price concession due to the poor quality of the squash. 4, Seventy-five crates were delivered to Olympia Produce in Atlanta, Georgia, which notified Homestead by telephone on March 10, 1987, that it did not want to accept the produce due to its poor condition. Jack Johnson, the employee of Sun Coast who had handled the sale to Homestead, requested that Homestead's customer obtain a federal inspection on the squash delivered to it. Because other purchasers had also complained about squash Homestead had purchased under this invoice, Johnson did not request federal inspections on all the deliveries; the squash delivered to Olympia would be typical. The result of that one federal report would indicate the condition of the squash, and save the cost of obtaining federal inspections at each location to which the squash had been shipped. According to the federal inspection, the squash had decay from rhizopus rot of from 8-11 percent, which was mostly advanced. The 75 crates of squash that had been received by Olympia Produce were then dumped, i.e., used as hog feed. Twenty-five crates of fancy crook necked squash from that same lot were sold by Homestead to Josey Brothers Produce in Jacksonville, Florida. When it arrived it was rejected due to wind scarring and rot. Sun Coast did not request Homestead to obtain a federal inspection on this lot of squash for the reason stated above. Homestead received no payment for this squash from Josey Brothers, and consequently remitted no payment to Sun Coast Farms of Dade. Another twenty-five crates of the crook necked squash were delivered to John Shipp in Atlanta, Georgia, who notified Homestead on March 10 that the squash was unacceptable due to wind scarring. Once again Sun Coast did not request a federal inspection on this squash. The squash was regraded and handled by John Shipp for the account of Homestead. Shipp was able to sell 16 boxes of the squash after regrading it. The purchase price Shipp obtained was sent to Homestead, which in turn paid that amount to Sun Coast. Forty-five cases of the squash were sent to M. G. Syracuse in Greenville, South Carolina, by Homestead. This firm notified Homestead of complaints about the squash, but ultimately paid for it in full, and Homestead remitted the full amount to Sun Coast. The number of complaints which were received about the squash, coupled with the federal inspection report from Atlanta, gives rise to the inference that there was trouble with the squash Sun Coast sold to Homestead on March 9, 1987. Homestead has remitted to Sun Coast what it received for the squash. Homestead has sustained its burden of showing why it deducted $1,574.80 from the invoice price. No further payment is due to Sun Coast on Invoice 1528. INVOICE 1660 On March 19, 1987, Homestead purchased 150 crates of medium crook necked squash from Sun Coast at a price of $12.20 per crate. The squash was delivered to Homestead that same day. Homestead maintains that it received trouble reports with respect to 55 crates of the squash from Sol Salins in Washington, D.C., on March 23, who claimed the product had a bacterial soft rot. Salins paid only $4.20 per crate for the squash, a deduction in the amount paid to Homestead of $8.00 per crate. This $440 was also deducted from Homestead's remittance to Sun Coast. The salesperson at Sun Coast who handled the sale to Homestead had received no trouble report from Homestead on this squash. No one with personal knowledge of the sale testified on behalf of Homestead. There is no evidence that the squash was in poor condition when Homestead purchased it on March 19, 1987. Whether Sol Salins was entitled to a reduction due to its condition on March 23, 1987, is a matter between Homestead and Mr. Salins. Homestead should pay the full price agreed upon to Sun Coast of $12.20 per crate, and therefore owes Sun Coast Farms an additional $440 on this invoice. INVOICES 1661-1662 Although Sun Coast Farms initially sought an additional $905 from Homestead Pole Bean on these invoices, at the hearing the representative of Sun Coast indicated that the parties had reached an agreement with respect to these invoices and they were no longer a subject of dispute in this case. INVOICE 1677 On March 20, 1987, Homestead ordered from Sun Coast 307 crates of medium and 200 crates of fancy crook necked squash, at prices of $10.20 and $12.20 per crate respectively. The squash was delivered to Homestead on March 20, 1987. Some of the squash was rejected by Homestead itself for poor quality, so that it accepted only 290 crates of medium and 117 crates of fancy squash. Homestead Pole Bean in turn sold 50 crates of the medium squash to Pitman Produce in Jacksonville, Florida. Homestead received a trouble report on March 23, 1987, indicating that the medium squash it received had decay. Sun Coast requested a federal Department of Agriculture inspection on the produce, but Pitman failed to obtain an inspection. Pitman instead sold the squash for $3.85 per crate and remitted this reduced amount to Homestead, which in turn paid that amount to Sun Coast. Due to the failure of Pitman to obtain the requested inspection, there is insufficient reason to believe there was any problem with this squash. Moreover, Homestead itself inspected this squash, and accepted it before it was shipped to Pitman. Homestead should pay the full agreed upon price of $10.20 per crate to Sun Coast Farms for the squash. The additional amount due to Sun Coast on that invoice is $317.50. The written statement filed by Homestead had listed several deductions taken by its customers for squash shipped under this invoice which Homestead contended were justified. The rebuttal dated August 31, 1988, by Sun Coast accepted the deductions other than the one for the produce delivered to Pitman. Therefore, no ruling on these other deductions is necessary. INVOICE 1994 On April 16, 1987, Homestead ordered 168 crates of fancy crook necked squash from Sun Coast at an agreed upon price of $22.20 per crate. The produce was shipped the same day. Thirty crates of the squash were sold by Homestead to Tom Lange Produce of Wichita, Kansas. Libby Butler, the salesperson for Homestead, maintains that she notified the salesman at Sun Coast, Jack Johnson, of trouble reported by Lange with the produce, that Johnson did not request a federal Inspection, and that he authorized Lange to sell the product on an open basis for Sun Coast. Mr. Johnson left the employment of Sun Coast some time after the transaction at issue to work fcr Homestead. Before he left, he met with officers of Sun Coast to discuss the disputes which Sun Coast had with Homestead on the invoices which are the subject of this proceeding. Contemporaneous notes made during that meeting show that Mr. Johnson told Sun Coast's officers that he had received no trouble report from Ms. Butler about the squash which Homestead ultimately sold to Tom Lange in Wichita. At the hearing, Mr. Johnson testified that he now believes that he did receive a trouble report on the squash. The Hearing Officer finds more reason to believe the earlier statement Mr. Johnson made, that he had not receive a trouble report on that squash. That statement was closer in time to the sales transaction. Mr. Johnson's current testimony probably results from confusion of the many sales transactions he has been involved in. In addition, it seems unlikely that of the 168 crates of squash purchased under invoice 1994, 30 cases would have had problems. Lastly, due to the very perishable nature of crook necked squash, even if there may have been trouble with the product when it arrived in Wichita on April 20 this would not prove that there was any problem with the squash at the time it was purchased from Sun Coast by Homestead on the 16th of April 1987. Sun Coast should receive the full purchase price of $22.20 per crate for the squash rather than the $12.40 which Homestead received from Mr. Lange. Homestead should pay Sun Coast an additional $294 on this Invoice. INVOICE 2034 On April 20, 1987, Homestead ordered 65 crates of fancy zucchini and 100 crates of medium zucchini from Sun Coast at prices of $6.20 and $4.20 per crate respectively. The produce was shipped that day. Garren-Teed Produce purchased some of the zucchini from Homestead, and reported trouble with five crates of the fancy zucchini on April 24, 1987. According to records of Homestead, the salesman who handled the matter for it was not one of the employees who attended and testified at the final hearing. The evidence is insufficient to indicate that there was trouble with the five crates of zucchini, and Homestead should pay the agreed upon price of $6.20 per case for the zucchini, not the $1.00 per crate which Homestead Pole Bean received from Garren-Teed Produce. Homestead Pole Bean should pay an additional $26.00 on this invoice.

Recommendation It is recommended that a final order be entered by the Department of Agriculture and Consumer Services requiring Homestead Pole Bean Co-Op, Inc., to pay to Sun Coast Farms of Dade, Inc., the amount of $2,075.50, and that the surety on the agriculture products bond for Homestead Pole Bean Co-Op, Florida Farm Bureau Mutual Insurance Company, also be liable for the payment of this amount. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of January, 1989 WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florfflda 32399-1050 (904) 488-9765 Filed with the Clerk of the Division Administrative Hearings this 5 day of January, 1989. COPIES FURNISHED: Ms. Phyllis Ernst Vice President Sun Coast Farms of Dade, Inc. Post Office Box 3064 Florida City, Florida 33034 Ms. Libby Butler Post OffIce Box 2248 Naranja, Florida 33032 The Honorable Doyle Conner Commisioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, Esquire Ceneral Counsel 513 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650

Florida Laws (2) 120.57171.20
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W. B. JOHNSON PROPERTIES, INC. vs. CITY OF CLEARWATER AND ANTONIOS MARKOPOULOS, 83-002510RX (1983)
Division of Administrative Hearings, Florida Number: 83-002510RX Latest Update: Oct. 06, 1983

Findings Of Fact W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations. Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent. Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line. The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW. Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners. Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar. By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL. Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.

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FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES vs. SUNCOAST HIGHLAND CORPORATION; TIMBER OAKS, INC.; ET AL., 82-001600 (1982)
Division of Administrative Hearings, Florida Number: 82-001600 Latest Update: Nov. 03, 1982

Findings Of Fact Respondents are developers of land registered with Petitioner pursuant to Chapter 498, Florida Statutes, and were so registered at all times here relevant. In 1979 Respondent Suncoast Highland Corporation, (Suncoast) developer of Shadow Run Subdivision, received numerous complaints from the Shadow Run Homeowners Association (Homeowners) regarding lack of recreation facilities promised by the developer. This led to the execution of an AGREEMENT between Suncoast and Homeowners in which the developer agreed to install certain recreational facilities. This AGREEMENT was not carried out by Suncoast and, after intervention by the Division of Florida Land Sales (Division) a CONSENT ORDER was entered on 22 April 1981. In this CONSENT ORDER Suncoast irrevocably committed itself to complete the promised recreation facilities; agreed to file monthly progress reports with the Division; and, in the event of default by Suncoast, authorized the Division to impose a civil penalty in the amount of $10,000. Suncoast did not complete the recreational facilities as promised. On 12 March 1982 an MENDED CONSENT ORDER was entered into between the Division on the one hand and Suncoast, Timber Oaks, Inc. and Kingsland, Inc. on the other, in which it was determined Suncoast had failed to construct the prescribed recreational facilities and Kingsland, Inc. had failed to provide recorded warranty deeds and title insurance policies to purchasers in their registered subdivisions. In this Amended Consent Order Suncoast reaffirmed its commitment to complete the recreational facilities promised to Homeowners no later than June 15, 1982; Timber Oaks, Inc. guaranteed the completion of recreational facilities by Suncoast; and all Respondents agreed to establish and fund on or before March 31, 1982, an Escrow Account under the supervision of the Division in the amount of $95,000 to pay for the completion of the recreational facilities, to pay the costs associated with recording deeds and title insurance, and to pay delinquent real estate taxes. The Amended Consent Order further provided that in the event of default by the developers the Division will immediately be entitled to impose a civil penalty in the amount of $10,000. Respondents have failed to fund the Escrow Account or otherwise comply with the provisions of the Amended Consent Order.

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PALM BEACH COUNTY vs. SOUTH PALM BEACH UTILITIES CORPORATION AND PUBLIC SERVICE COMMISSION, 80-001630 (1980)
Division of Administrative Hearings, Florida Number: 80-001630 Latest Update: Jun. 15, 1990

Findings Of Fact South Palm Beach Utilities Corporation is a private provider of water and sewer services in Palm Beach County, Florida. It is presently operating within a specified service area according to a certificate issued by the Public Service Commission. The utility is seeking to expand its service area north of the present boundaries, and has filed various notices of its intention with the Public Service Commission. As to some of these notices, no protests were filed, and the utility has commenced preliminary engineering planning activities to provide water and sewer lines to those areas. Palm Beach County has filed timely protests with respect to four off the parcels to which the utility is proposing to extend its certified service area. These four properties have been called the "Atlantic," "Mitchell," "Snow," and "Benson" properties. In its notices, the utility described the "Atlantic" property as follows: Tracts 49 thru 56 inclusive; 73 thru 88 inclusive and 105 thru 120 inclusive, in Section 21; and Tracts 9 thru 24 inclusive; 41 thru 56 inclusive; 73 thru 88 inclusive; and 105 thru 120 inclusive, in Section 28, all as shown on Palm Beach Farms Company Plat No. 1, as recorded in Plat Book 2, Pages 26, 27 & 28, Public Records of Palm Beach County, Florida, together with the West Half of the East Half of Section 21 and the West Half of the East Half of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida. EXCEPTING therefrom the dedicated public right of ways of record, as shown on the said Palm Beach Farms Company Plat No. 1, and the Plat of Delray Roads (containing 10.9500 acres) and the following Lake Worth Drainage District right of ways: LWDD Canal L-34: Beginning at a point where the Southerly line of a public right of way, 120.0 feet wide known as Del Ray West Road (State Road 806) intersects the North & South Quarter Line of Section 21, Township 46 South, Range 42 East, Palm Beach County, Florida, said point being S 1 degree 54' 34" E, 34.13 feet from the North Quarter Corner of said Section 21; run thence along said Quarter Section Line S 1 degree 54' 34" E, 90.02 feet; thence N 89 degrees 18' 11" E, 1342.63 feet to the East line of the West Half of the East Half of said Section 21; thence along said East Line N 2 degrees 06' 02" W, 90.03 feet to the South Line of said Del Ray West Road; thence along said South Line S 89 degrees 18' 11" W, 1342.33 feet to the Point of Beginning, Containing 2.7737 acres; LWDD Canal L-35: The South 10.0 feet of the West Half of the Northeast Quarter; the North 80.0 feet of the West Half of the Southeast Quarter; the South 15.0 feet of the Northwest Quarter (less the West 55.0 feet); and the North 75.0 feet of the Southwest Quarter (less the West 55.0 feet), in Section 21, Township 46 South Range 42 East, Palm Beach County, Florida, Contain- ing 8.2207 acres; LWDD Canal L-36: The South 15.0 feet of the West Three-Quarters of Section 21 (Less the West 55.0 feet); and the North 75.0 feet of the West Three-Quarters of Section 28 (less the West 40.0 feet); all in Town- ship 46 South, Range 42 East, Palm Beach County, Florida, Containing 8.2672 acres; LWDD Canal L-37: The South 40.0 feet of the North Half of the West Three-Quarters; and the North 50.0 feet of the South Half of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida, (Less the West 40.0 feet Thereof), Containing 8.1733 acres; LWDD Canal L-38: The South 105.0 feet of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida (less the West 40.0 feet thereof), containing 9.6120 acres; and LWDD Canal E-3: The West 55.0 feet of the South Half, and the West 55.0 feet of the South 664.91 feet of the North Half of Section 21; and the West 40.0 feet of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida, con- taining 9.2135 acres. Containing a net acreage of 816.1290 acres. The utility described the "Mitchell" property as follows: All of Tracts 65 to 128 inclusive, Section 29, Township 46, South, Range 42 East, (less 30.59 acres sold to Florida State Turnpike Authority and more particularly described in Deed Book 1104, Page 577), The Palm Beach Farms Co. Plat No. 1, according to the Plat thereof on file in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, recorded in Plat Book 2, Pages 26 to 28. The "Snow" Property is described as follows: The North half of Sections 31 & 32, Town- ship 46 South, Range 42 East, Palm Beach County, Florida, and also known as Tracts 1 through 60, Block 71 and Tracts 1 through 64 of Block 70, Palm Beach Farms Company, Plat No. 3, as recorded in Plat Book 2, Page 52, Palm Beach County, Florida. At the hearing, the utility amended its notice with respect to the "Snow" property to withdraw its intention to provide service to the north half of Section 32, or that property east of Lyons Road. As to the property west of Lyons Road, being the north half of Section 31, the utility maintains its intention. The "Benson" property has been described by the utility as follows: Tracts 65 through 70, 91 through 102, and 123 through 128, Block 70, Palm Beach Farms Company, Plat No. 3, Plat Book No. 2, as recorded on Page 52 wholly within the South Half of Section 31, Township 46 South, Range 42 East, Palm Beach County, Florida. [This finding is determined from a stipulation of the parties as stated on the record at the final hearing, and from Exhibit 1.] The South Palm Beach Utilities Corporation is a fit provider of water and sewer service. No issue has been raised with respect to the quality of the service provided by the utility, and it is under no citations from any government agency. The utility has the financial integrity and engineering capability to provide service to the four properties involved in this proceeding. With respect to each of the four properties, the utility has provided the notices required by statute. Extension of the utility's service area to include the four properties would not result in a duplication of any existing facilities. No other utility is providing service to the area. In its long-range plans, the County envisions providing service to the area, but it does not provide service now, and would not be in a position to provide service for at least three to five years. The owners of the four proporties have proposed developments which would require provision of water and sewer service. [This finding has been determined from stipulations stated by the parties on the record at the final hearing.] In accordance with the "Local Government Comprehensive Planning Act of 1975" (Florida Statutes Section 163.3161, et seq.), Palm Beach County has promulgated a comprehensive plan which includes a "sewer, potable water, drainage and solid waste element" and a "land use plan element." The land use element of the comprehensive plan provides that the areas where South Palm Beach Utilities Corporation is seeking to expand its territory will be set aside for low density development. The County contends that expansion by the utility into these areas would allow for a level of development which is not in harmony with the land use element of the comprehensive plan. The evidence does not support this contention. No specific evidence was presented as to development densities proposed by developers, and it does not appear that allowing the utility to expand its service area would as a factual or legal matter allow for development of any kind. [This finding is determined from the testimony of the witnesses Garbrick and King, and from Exhibits 3, 4 and 5.] Extension of the South Palm Beach Utilities Corporation service area into the four properties at issue would conflict with the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan. Under this element of the comprehensive plan, which is in harmony with an overall management plan to treat wastewater pollutants that the County has developed in accordance with Federal funding requirements ("201 Plan"), the County envisions that it would provide sewer service to the "Atlantic" and "Mitchell" properties through a central wastewater treatment facility. Plans for providing such service have been made on a long-range basis, and the County is in the process of refining the plans so that it can obtain Federal funding. Removal of the "Atlantic" and "Mitchell" tracts from the area that the County proposes to serve through the central facility would not be in accordance with the "201 Plan." Removal of the properties would reduce the service area of that central facility, and could affect the size of the central facility, and funding. Removal of the properties would furthermore be contrary to the plans because of the introduction of a wastewater treatment facility other than the central facility. Both the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan and the "201 Plan" are long range. The County is not presently prepared to offer service to the properties at issue, and will not be prepared to do so for some time. This finding is determined from the testimony of witnesses Garbrick and King, the stipulation of the parties stated on the record at the final hearing, and Exhibits 2, 3 and 5.] While the evidence establishes that extension of the South Palm Beach Utilities Corporation's service area would on its face conflict with the County's comprehensive plan, the evidence does not establish that the conflict would adversely affect the plan. The evidence does not reveal that provision of services by facilities other than the County's central system would render the central system less feasible. While it was speculated that the central system might need to be reduced in size as a result, and that the rate base for it would be lessened in an unspecified amount, no competent evidence to these effects has been presented. [This finding is determined from the record as a whole.]

Florida Laws (4) 120.57163.316134.13367.011
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BEN WITHERS AND BEN WITHERS, INC. vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 02-000621 (2002)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Feb. 18, 2002 Number: 02-000621 Latest Update: Feb. 25, 2003

The Issue Petitioners challenged the Department of Environmental Protection's (Department) preliminary Final Order, alleging that Petitioners committed the "unauthorized clearing and destruction of dunes and dune vegetation for the purposes of constructing a roadway seaward of the coastal construction control line [(CCCL)] without benefit of a permit." The ultimate issue is whether the work Petitioners performed was seaward of the CCCL, and if it was, whether there was a violation of Amended Permit FR-563 and Section 161.053(2), Florida Statutes.

Findings Of Fact Parties Petitioner, Ben Withers, Inc., is a Florida corporation doing business in the State of Florida. Petitioner, Ben Withers, is the President and owner of Ben Withers, Inc., and a resident of Panacea, Florida. (Henceforth, Ben Withers and Ben Withers, Inc., are referred to collectively as "Mr. Withers," unless otherwise noted.) Mr. Withers is a licensed general contractor. The Department is the executive agency of the State of Florida operating pursuant to, among others, Chapter 161, Florida Statutes, and Chapter 62, Florida Administrative Code. Pursuant to Chapter 161, Florida Statutes, the Department administers the CCCL program for construction activities seaward of the CCCL. Coastal Construction Control Line Program The Department's Bureau of Beaches and Wetland Resources regulates construction and excavation activities seaward of the CCCL. The Department is responsible for determining and setting the CCCLs. The CCCL is a scientifically established line pursuant to Section 161.053, Florida Statutes. By definition, the CCCL "defines that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions." Rule 62B-33.002(13), Florida Administrative Code. Construction and excavation activity seaward of the CCCL is regulated by Section 161.053, Florida Statutes, and Rule 62B- 33, Florida Administrative Code. Mr. Withers admitted that he is aware of Department rules regarding beaches and coastal construction and is also aware that excavation seaward of the CCCL requires a permit unless it is otherwise exempt, and that he had this knowledge prior to the present case. Accessing the Pepper Project Site Under Amended Permit FR-563 Dog Island is a barrier island south of and about three miles off the coast of Franklin County, Florida. The island is approximately eight miles in length. There is no bridge to the island. The Pepper project site is on the far western end of the island. The Gulf of Mexico borders the island on the south and St. George Sound borders the island to the north. The most common way to access the Pepper site with any vehicle carrying equipment and materials, would be to use a boat or barge to a marina area (Tyson's Harbor) near the center of the island, or a private dock, and then traverse west down the middle of the island or down the beach itself, or a combination of the two. The Easy Street Easement is an easement area for a roadway running east and west through Dog Island. The parties agree that Easy Street and the Easy Street Easement are the same. The Easy Street Easement had been an unpaved roadway years before; part of the roadway was still visible in May 2001, and other parts had been covered with vegetation. There are portions of Easy Street and Easy Way east of the cul-de-sac which are visible roadways. See, e.g., Department Exhibit 13. Additionally, parts of Easy Street are seaward of the Department's CCCL (e.g., in the narrows area which is west of the cul-de-sac) and other parts are landward of the CCCL. See, e.g., Finding of Fact 29. Pursuant to its statutory duty, in 1996, the Department set the reference monuments R-158-R-160 for the CCCL on the west end of Dog Island. These monuments are in the narrows area of the island and run west to east. The CCCL is not visible on the ground. A surveyor is needed to locate the line. The alleged violation in this case was committed between R-158 and R-160, part of the narrows area. The Easy Street Easement on Dog Island runs both north and south from The Nature Conservancy cul-de-sac and then runs westerly to the west end of Dog Island. The CCCL Permits On October 21, 1999, the Department issued Permit FR-563 to Leonard Pepper, the property owner, for the construction of a single–family dwelling and for structures associated with the dwelling on the west end of Dog Island. Permit FR-563 contained Standard Permit Conditions that required in part: (1)(a) all construction or activity for which the permit was granted be carried out in accordance with the plans and specifications which were approved by the Department as a part of the permit; (1)(b) all construction or activity authorized under the permit shall be conducted using extreme care to prevent any adverse impacts to the beach and dune system; and (1)(g) existing beach and dune topography and vegetation shall not be disturbed except as expressly authorized in the permit. Permit FR-563 did not authorize the start of construction until a construction access plan to the Pepper project site was approved, in order to minimize impacts to the beach and dune system. On October 16, 2000, Amended Permit FR-563 was issued with a Notice to Proceed Withheld. The Amended Permit also contained Special Condition 1.5 which required the submittal and approval of "[a] construction access plan showing the route and timing for bringing equipment and materials to the site, in order to minimize impacts to the beach and dune system." The Department was concerned about the manner in which equipment and materials would be brought to the project site without causing further harm to the system. Amended Permit FR-563 did not expressly or implicitly authorize excavation or grading seaward of the CCCL in any area on Dog Island off of the project site and footprint of the house. In late 2000, Mr. Withers became involved with the Pepper project after Amended Permit FR-563 (with the Notice to Proceed Withheld) was issued on October 16, 2000. Part of Mr. Withers' job responsibility was to prepare and submit a construction access plan to the Department for approval. The Department does not normally require an access plan because most job sites are located in areas with established roads for ingress and egress. Here, there was no established road to and from the project site. The access plan was necessary in order to determine how Mr. Withers would transport equipment and materials to the Pepper project site on the west end of Dog Island due to the site's remote location and the absence of an established roadway to the site. Mr. Withers expected that materials and heavy equipment, including cranes, would be off-loaded at Tyson's Harbor, located approximately in the middle of Dog Island, and transported by vehicle to the project site along the access plan route. He expected to only transport pilings using the beach access route. On March 15, 2001, Mr. Withers submitted an access plan which described the route Mr. Withers would traverse by vehicle with construction equipment and materials. See Endnote 1. The Easy Street Easement starts at the east end of the island as an established roadway. Proceeding in a westerly direction, Easy Street comes to a dead-end at a cul-de-sac landward of the CCCL. The access plan authorized Mr. Withers to access the job site using part the Easy Street/Easy Street Easement (starting on the east end of the island) going north from The Nature Conservancy cul-de-sac, then heading in a westerly direction just south of the Ausley house (west of R-158 and just landward of the CCCL) and across the narrows area and continuing in a westerly direction along the northern shoreline and in southerly direction toward R-154. The access plan then authorized Mr. Withers to proceed in a westerly direction over the middle portion of the west-end of the island, then in a southerly direction toward the project site.1 The access plan showed a route both landward and seaward of the CCCL along the narrows area. See Department Exhibit 4- orange line then blue line after the orange circle on the west-end of the island. As described by Mr. McNeal of the Department, the access route is seaward, for the most part, of the CCCL from R-157 to R- 159 (running west to east) and landward of the CCCL east of R-159. The Department described the damaged area of 5,305.6 square feet (Department Exhibit 11A, insert "B") caused by Mr. Withers as east of R-159 and seaward of the CCCL and south of the access plan route. See also Finding of Fact 35. However, it appears that a portion of Easy Street, between R-159 and R-160, is seaward of the CCCL. Compare Department Exhibit 12 with Department Exhibits 4, 11A, and 13. During a pre-hearing deposition, Mr. Withers marked in pink the route he took through a portion of the narrows area which coincides with the portion of Easy Street between the approximate locations of R-159 and R-160, depicted on Department Exhibit 12. See Finding of Fact 43. (Mr. Withers had the Easy Street Easement staked prior to doing any work on Dog Island. See Findings of Fact 33-35.) The damaged area appears to coincide with this portion of Easy Street, and seaward of the CCCL. See Department Exhibit 11A. The access plan authorized Mr. Withers to drive (vehicular traffic) his equipment over the easement following the route depicted on the access plan until he arrived at the project site. See Endnote 1. The Department expected that travel along the access route would cause minimal and temporary damage or destruction to the topography, so the plan was considered acceptable. The access plan did not authorize excavation of a roadway within the route, including the narrows area, nor did it contemplate any other activity over or around a dune other than what might occur as a result of driving.2 The Department understood that Mr. Withers would be driving daily over the access plan route to the project site. The Department assumed that trucks would be used to transport equipment and materials. The Department did not differentiate among vehicles which could be used, including large trucks. On April 11, 2001, the Department issued a Notice to Proceed to Mr. Pepper to begin construction of his single-family dwelling in accordance with Amended Permit FR-563. The access plan is part of the Amended permit. Shortly after the Notice to Proceed was issued, The Nature Conservancy advised the Department of concerns it had with the access plan. As a result, on April 24, 2001, there was a meeting in Apalachicola, Florida, convened by the Department and attended by other interested governmental entities and private persons, including Mr. Withers. The purpose of the meeting was explore other possible ways and means of access by Mr. Withers to the Pepper project site.3 No resolution was reached during the meeting and the access plan previously approved by the Department remained effective. The previously issued Notice to Proceed was also in effect. The Violations Mr. Withers hired Kenneth Greenwood of Garlick Environmental Associates to perform a threatened/endangered species inspection, plant and animal, on an approximately 30-foot wide strip on the Easy Street Easement (approximately 1,800 feet) being utilized in Mr. Withers' access plan and within the narrows area. See Department Exhibit 13-yellow markings. On May 2, 2001, Mr. Greenwood performed the inspection within the easement that Mr. Withers had staked out by a land surveyor, approximately 15 feet on either side of the stakes. He found no threatened/endangered species. (The CCCL was not staked by Mr. Withers because, according to Mr. Withers, the Department did not ask him to locate the CCCL with stakes.) The access route depicted by Mr. McNeal in orange on Department Exhibit 4, which runs east of R-159, is similar to the description of the staked areas east of R-159, described by Mr. Greenwood and marked in yellow on Department Exhibit 13. See Findings of Fact 28-29. Both areas are landward of the CCCL. However, the 5,305.6 square foot damaged area is east of R-159 and is seaward of the CCCL. Mr. Greenwood described the area where he performed his investigation as being "relatively undisturbed," "relatively stable," having no vehicle tracks, and he stated that there were areas of bare sand as well as areas of "natural beach dune vegetation." He described the area as "relatively flat with some small amounts of mounding." The pictures taken by Mr. Greenwood within the staked easement on May 2, 2001, as part of his investigation, do not depict any vehicle tracks. After Mr. Greenwood completed his investigation on May 2, 2001, he observed Mr. Withers landward of the CCCL on a front-end loader and north of the cul-de-sac, proceeding west along the Easy Street Easement scraping off the top layer of soil and heading in a westward direction. Mr. Greenwood believed that the activity performed by Mr. Withers at this time was consistent with unpaved, road construction. According to Mr. Greenwood, the width of the scraped area appeared to be approximately the width of the bucket on Mr. Withers' front-end loader. Mr. Withers stated that he was doing minor grading landward of the CCCL with a John Deere 310-E front-end loader tractor when Mr. Greenwood was present on May 2, 2001. This tractor had a front bucket (approximately seven to eight feet wide) and a backhoe for excavating dirt on the back-end. Mr. Withers described the work which he performed when Mr. Greenwood was present as moving out and smoothing off the top of the sand landward of the CCCL in order for his equipment to get through. Mr. Withers also stated that he made areas in the easement seaward of the CCCL smooth by using the bottom of the bucket of his front-end loader to move sand around. Mr. Withers mentioned that he was very concerned that he needed to have the pathway he was utilizing in the access plan marked and smoothed off and fairly level. He believed the access plan authorized him to smooth off the areas on the access route. Mr. Withers stated that he had to have the access path level because he was bringing a self-propelled, 25-ton crane down the access path and they are top heavy and can get off balance, topple over, or get stuck. Mr. Withers described two types of work that he performed in the Easy Street Easement as: 1) clearing landward of the CCCL that required scooping and moving dirt, and 2) smoothing several areas seaward of the CCCL, just east of R-158 to around R- 160. An area of excavation damage seven feet seaward of the CCCL (beginning approximately 130 feet east of R-158) and an area 41 feet seaward of the CCCL (beginning at R-159, continuing east approximately 500 feet) are located within the area Mr. Withers stated he did some "smoothing off areas," again, east of R-158 and continuing east toward, but west, of R-160. Mr. Withers believed that Amended Permit FR-563 allowed him to use the Easy Street Easement in the access plan "to do . . . whatever was necessary and . . . needed to get [his] equipment, access [his] equipment down to the job site." He also admitted smoothing the areas. Mr. Withers also stated that Amended Permit FR-563 granted him permission to access the west end of Dog Island. Therefore, there was no need for him to locate the CCCL. Mr. Withers referred to the easement in the access plan as turning into a good pathway after he smoothed the areas. Mr. Withers stated that it was his "intention to gain access to the west end of Dog Island through a legal easement and an existing roadway" and that he wanted to utilize it. Mr. Withers testified "that he knew a lot of roads on Dog Island crossed seaward of the [CCCL]" in response to questioning whether he knew at the time of his performing work on the easement, whether or not the Easy Street Easement crossed seaward of the CCCL. He knew he was going to be traversing "fairly close" to the CCCL. Mr. Withers stated he did not knowingly violate the conditions of the Amended Permit. Mr. Withers was aware of the Department's permit requirements for work seaward of the CCCL when he performed his access work in the easement on Dog Island. However, Mr. Withers never had a survey done to figure out where the CCCL was located. Notice of the Alleged Violations Around May 2, 2001, the Department received a complaint that excavation was occurring seaward of the CCCL on Dog Island in the narrows area of the Easy Street Easement. On May 4, 2001, John A. Poppel, William Fokes, and Phil Sanders went to Dog Island on behalf of the Department to investigate the complaint of excavation in the narrows area seaward of the CCCL. On May 4, 2001, Mr. Poppel performed a survey of the narrows area and located the CCCL. He located monuments R-158- R-160. Department Exhibit 11. As a product of his survey, Mr. Poppel was able to depict the newly excavated roadway or pathway in relation to the CCCL. Mr. Poppel calculated that one area of damage was seven feet seaward of the CCCL and consisted of 503.8 square feet of damage and a second area of damage was 41 feet seaward of the CCCL and consisted of 5,305.6 square feet of damage. These square foot areas represent only the disturbed areas seaward of the CCCL, not the entire area between the CCCL and the Gulf of Mexico. Both areas of damage are within the area where Mr. Withers stated that he smoothed out the sand. As part of the May 4, 2001, investigation, William Fokes, an Engineer I with the Department, took photographs of the damaged areas and prepared an inspection report. Mr. Fokes' report indicates that an approximately 11-foot wide roadway or pathway had been cleared by excavation with the most seaward extent of the road being about 40 feet seaward of the CCCL. In addition, the report states that small dunes and beach vegetation had been destroyed. Mr. Fokes described the damage as excavation or grading done by some kind of machine, which cut and uprooted vegetation and pushed sand to the side as it leveled the ground. Mr. Fokes testified that the damage did not appear to be caused by merely traversing the area. Mr. Sanders, an engineer with the Department, processes CCCL permit applications and supervises Mr. Fokes, a field engineer. On May 4, 2001, Mr. Sanders observed the narrows area in question and confirmed that it looked like a "graded road" in that "[i]t appeared in the road bed that vegetation was gone and had been pushed out to the side, graded away," and that there was "excavation" seaward of the CCCL. Mr. Sanders stated that this activity did not comply with the approved access plan. On May 7, 2001, a Notice of Violation was issued to Mr. Withers for the "the unauthorized clearing and destruction of dunes and native vegetation for the purpose of constructing a roadway seaward of the coastal construction control line." Mr. Greenwood's photographs taken May 2, 2001, when compared with Mr. Fokes' photographs taken May 4, 2001, show that no discernable roadway or pathway was present landward or seaward of the CCCL in the narrows area at the time of Mr. Greenwood's inspection on May 2, 2001. This is evident when comparing Mr. Greenwood's photograph, Exhibit 15a, taken on May 2, 2001, with Department Exhibit 16g taken on May 4, 2001--the roadway or pathway present in the May 4, 2001, photo is absent in the May 2, 2001, photograph, and the vegetation has been removed from part of the area. Comparing Mr. Greenwood's photograph, Department Exhibit 15b, taken May 2, 2001, with Department Exhibits 16c and d, taken on May 4, 2001, also shows that the roadway or pathway was not present on the narrows portion of the Easy Street Easement at the time of Mr. Greenwood's inspection. The previously mentioned pictures, which were used for a comparison, were taken by two different people on separate dates, and from approximately the same locations. Also, Department Exhibit 16j was taken 250 feet east of R-159 and within the narrows area, facing east which shows clearing approximately 40 feet seaward of the CCCL. On May 14, 2001, at the request of the Department, Ken Jones, a principal engineer with Post Buckey et al., performed a damage assessment of the narrows portion of the Easy Street Easement which was seaward of the CCCL. Mr. Jones has a bachelor's degree in civil engineering and a master's degree in physical oceanography. Mr. Jones was familiar with the narrows area having been to Dog Island for recreation during the past 20 years and as a Dog Island property owner for the last three years. Mr. Jones described the narrows area as relatively flat and located between the St. George Sound to the north and the Gulf of Mexico beaches to the south. Between these two areas, the land is undulating sand and fairly consistent vegetation. At the time of Mr. Jones' damage assessment, he determined that a road had been cut through the vegetative portion of the dune of the narrows. Mr. Jones observed cut roots and a majority of the vegetation destroyed. Mr. Jones stated it appeared that the damage was caused by a vehicle with a blade on the front. The result was the road sat down in the sand approximately four to six inches. Mr. Jones stated that the work appeared to have been recent because distinct edges were still present. Mr. Jones took photographs and compiled an inspection report as part of his damage assessment. Mr. Jones testified that the damage "was pretty consistent from both landward and seaward of the [CCCL]." The pictures labeled Department Exhibits 18a1 and 18a2 depict a level pathway or roadway barren of vegetation seaward of the CCCL. Department Exhibit 18a4 is a photograph of a typical vegetated dune. Mr. Jones took this picture in order to have a general idea of what the vegetation coverage was in order to get an idea from a cost-estimating perspective. Mr. Jones's cost estimate for repairing the damage to the narrows area seaward of the CCCL, was approximately $7,500.00.4 Mr. Jones calculated the $7,500.00 by making an estimate of what it would cost to buy coastal vegetation, and by estimating what it would cost to employ laborers to hand rake the sand back into position and to plant the vegetation. Administrative Fine and Damages Jim Martinello, an environmental manager in charge of enforcement and compliance with the Bureau, used Mr. Jones' damage assessment estimate for informational purposes in assessing the damages amount for the narrows area. Mr. Martinello calculated the administrative fine and damages in accordance with Section 161.054, Florida Statues, and Rules 62B-54.002 and 62B-54.003, Florida Administrative Code. Rule 62B-54.002, Florida Administrative Code, provides that the Department shall assess fines for willful violations of, or refusing to comply with, for example, Section 161.053, Florida Statutes, and the fine should be sufficient to ensure immediate and continued compliance. In determining the actual fine within the range, the Department shall consider the offender's past violations, if any, and other aggravating or mitigating circumstances. Aggravating circumstances include prior knowledge of rules. Mitigating circumstances may be considered. Id. Mr. Withers had knowledge prior to the issuance of Amended Permit FR-563 of Department rules regarding permit requirements for construction activities seaward of the CCCL. On October 4, 1996, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible unauthorized construction seaward of the CCCL. This matter was resolved by entering into a consent order. On October 29, 1997, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible permit violation seaward of the CCCL. On November 13, 1997, Mr. Withers was issued a warning letter for possible unauthorized construction seaward of the CCCL. On October 27, 2000, Mr. Withers wrote a letter to Mr. McNeal indicating that he believed that the Easy Street Easement on Dog Island heading south from The Nature Conservancy cul-de- sac, then west to the west end of Dog Island, is landward of the CCCL and, therefore, no permit was necessary to reopen and use the easement, but he would have a surveyor establish the control line prior to work commencing. On November 7, 2000, Phil Sanders replied by letter to Mr. Withers' October 27, 2000 letter, in which Mr. Sanders reminded Mr. Withers of the pertinent rules and laws and suggested that Mr. Withers have the CCCL surveyed. On December 20, 2000, Mr. Martinello sent Mr. Withers an advisory letter informing him that the area he traversed (on July 2000) on the south route of the Easy Street Easement from the cul- de-sac on Dog Island was considered to be a dune as defined by Rule 62B-33.002, Florida Administrative Code. However, Mr. Martinello further advised that the Department did not take any action because "the traversing [did not] cause any substantial damage, it was minimal damage." In regard to the present case, it is more than a fair inference that Mr. Withers had specific knowledge of the CCCL and the Department's laws and rules, and that he knew excavation was not authorized seaward of the CCCL. The information in the prior Findings of Fact was used by the Department, and specifically Mr. Martinello, to determine that the harm to the beach resource or potential harm was major, and the administrative fine assessed was $7,500.00. However, part of Mr. Martinello's determination was predicated on Mr. Jones' assessment that the site one narrows violation was approximately 700 feet in length when, in fact, the area was approximately 500 feet in length, which explains in part the disparity between a 9,800 square foot area and the proven 5,305.6 square foot area. See Finding of Fact 78 and Endnote 4. Even the additional amount of damage of 503.8 square feet for the site two narrows area, when viewed in the aggregate, is significantly less than Mr. Jones' assessment of damages by square feet. (Mr. Martinello used the Jones' assessment as a guideline. Mr. Martinello says that the mistake did not alter his decision, although he was unaware of the mistake until the final hearing. He also says that Mr. Jones recommended a higher damage amount than the $5,000.00 assessed by the Department in its preliminary Final Order. He did--$7,500.00 for 9,800 square feet of damage.) Grossly negligent or knowing violations of statutes and Department rules regarding coastal construction seaward of the CCCL, which result "in harm to sovereignty lands seaward of mean high water or to beaches, shores, or coastal or beach-dune system(s), including animal, plant or aquatic life thereon," shall be considered in determining damages. Rule 62B-54.003(1), Florida Administrative Code. Rule 62B-54.003(2), Florida Administrative Code, provides that a damage amount greater than the minimum amounts may be assessed to ensure, immediate and continued compliance and the Department may consider, e.g., the need for restoration and the damaged ecological resource. The Department determined that the violation was knowing based on the factors mentioned above. The Department also considered the need for restoration and the damage to ecological resources and whether the amount would ensure immediate and continued compliance. Id. The Department determined that there was harm to the resource and that it was major and knowing. The Department proposed to assess the minimum damage amount of $5,000.00. On January 11, 2002, the Department entered a preliminary Final Order for the unauthorized grading and destruction of dunes and dune vegetation seaward of the control line for the purpose of constructing a roadway. The amount assessed in the Final Order was $12,500.00, $7,500.00 in administrative fines and $5,000.00 in damages, as described above. As noted, there has been harm to the beach area resource seaward of the CCCL and the Department proved the need for restoration and the damage to the ecological resource. In mitigation, Mr. Withers' construction access plan was approved by the Department. The Department knew that Mr. Withers intended to use the access route, which ran seaward of the CCCL from approximately R-157 to R-159 (except for a small portion between R-158 and R-159) in the narrows area; that Mr. Withers planned to transport equipment and materials by truck using the access route and necessarily would traverse seaward of the CCCL; and that he would continuously use the access route until the project was completed. The actual damaged area is less than originally determined by Mr. Jones, thus the need for restoration reduced. Mr. Jones, without the benefit of a survey, estimated the total cost to restore the damaged area of 9,800 square feet to be approximately $7,500.00. The total square feet of damage proven in this proceeding is 5,809.4 square feet in the narrows area and the Department is requesting $12,500.00 in fines and damages. Based on an approximate ratio of square feet and dollars needed to restore, a damage assessment in the amount of $4,500.00 is appropriate. Balancing the aggravating and mitigating circumstances, a fine of $3,500.00 is appropriate.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: That a final order be issued adopting this Recommended Order; and Within 30 days of a final order being effective, Petitioners shall pay a fine of $3,500.00 and $4,500.00 in damages with the total amount of $8,000.00, to the Department of Environmental Protection. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 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 January, 2003.

Florida Laws (6) 120.569120.57120.595161.053161.05457.111
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ISEULT KEITH vs SUN COVE PROPERTY INVESTMENT, LLP, 15-002363 (2015)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Apr. 27, 2015 Number: 15-002363 Latest Update: Aug. 21, 2015
Florida Laws (1) 120.68
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TAMPA PALMS OPEN SPACE AND TRANSPORTATION vs. FLORIDA LAND AND WATER ADJUDICATORY COMMISSION AND MONROE COUNTY, 89-003654 (1989)
Division of Administrative Hearings, Florida Number: 89-003654 Latest Update: Oct. 18, 1989

The Issue The issue in this case is whether the Florida Land and Waiter Adjudicatory Commission should grant or deny the petition filed under Chapter 190, Florida Statutes, for the establishment of the Tampa Palms Open Space and Transportation Community Development District.

Findings Of Fact The following findings constitute a summary of the evidence, and are based upon the presentation and testimony presented at the public hearing, as well as Exhibits A through L of the petition and Exhibits 1 through 3 presented at the public hearing: On June 23, 1989, a petition for creation of the Tampa Palms Open Space and Transportation Community Development District was filed with the Secretary of the Florida Land and Water Adjudicatory Commission. After staff review of the petition, the Secretary determined that it satisfied all requirements of Section 190.005(1)(a) and (b), Florida Statutes, and forwarded the petition to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a local public hearing, pursuant to Section 190.005(1)(d), Florida Statutes. The Secretary's letter of transmittal to the Division of Adminstrative Hearings constitutes certification that the petition addresses all those elements required by Section 190.005(1)(a), including a metes and bounds description of the district, written consent to the establishment of the district by owners of the property to be included in the district, a designation of five persons to be initial members of the board of supervisors, the proposed name of the district, a map showing major trunk water mains and sewer interceptor and out falls currently in existence on the property, proposed time tables for construction and related estimates of costs, a proposed master plan for the district and abutting property, and an economic impact statement. There was no dispute at the public hearing concerning the sufficiency of the petition, or the payment of all required fees. The date of September 15, 1989, was established for the local public hearing by Notice of Hearing issued on July 25, 1989. Notice of the local public hearing was published in The Tampa Tribune on August 17, 24, 31 and September 7, 1989, and was also published in the Florida Administrative Weekly on August 18, 1989. No persons filed written statements in support of, or in opposition to, the petition as authorized by Rule 42-1.012(3), Florida Administrative Code. Neither the City of Tampa nor Hillsborough County conducted a public hearing under Section 190.005(1)(c), Florida Statutes. Therefore, this recommendation and report is based solely on the testimony, presentation, and exhibits received at the local public hearings including the petition. The Petitioner has proposed the creation of the Tampa Palms Open Space and Transportation Community Development District to provide the major transportation network and open space improvements to certain designated properties, composed of approximately 5,200 acres located in the City of Tampa's northeast annexation area, and bounded on the east by County Road 581 and Interstate 75, and on the west by Interstate 275. A community development district is a local unit of special purpose government. Over a fifteen year period, this district is proposed to develop into a community with approximately 8,700 dwelling units, and approximately 22 million square feet of office and commercial development. The proposed development constitutes a planned mixed use development of regional impact. This newly proposed district will lie adjacent to, and overlap a portion of, an existing district known as the Tampa Palms community Development District which was created in 1982. The overlapping areas were referred to as Tracts 3 and 4, and constitute approximately 2,000 acres of the new district's total acreage. To the southwest of these overlapping tracts, are Tracts 1 and 2 of the existing district, and to the northeast of these overlapping tracts is an area to be included in the new district comprised of about 3,200 acres which has been acquired subsequent to the creation of the existing district, and therefore, is not included within the current district boundaries. Since its creation in 1982, the Tampa Palms community Development District has issued bonds, to be repaid through special assessments, for the immediate installation of. infrastructure and landscaping that otherwise would likely have taken the developer longer to complete on a less financially advantageous basis. In Tracts 1 and 2, infrastructure is being completed in advance of home building. The existing district has also undertaken maintenance functions for its open spaces. Special assessments made in Tracts 1 and 2 will not be made by the existing district in Tracts 3 and 4, the overlapping tracts, if this new district is created. Instead, special assessments in Tracts 3 ands 4, as well as the remaining areas of the new district, will be made through this new Proposed district. Thus, the existing Tampa Palms Community Development District will not levy special assessments in the overlapping area if the Tampa Palms Open Space and Transportation Community Development District is approved. This will be done in the overlapping area through the new district so that those residents and property owners in this overlapping area will not be subject to special assessments by two different districts. However, residents in the overlapping area will be subject to ad valorem taxes by both districts, although the ad valorem assessments by the new district would only be for district administration and not for maintenance. Thus, the ad valorem assessments of the new district in the overlapping area are expected to be nominal, and the representatives of property owners present at the public hearing expressed no objection to this. The Petitioner intends to apply to extend the boundaries of the existing district in the future to include the entirety of the new district, if created. When this occurs, the Tampa Palms Community Development District will have all operation and maintenance functions, and all special assessments will be made through the Tampa Palms Transportation and Open Space Community Development District. The district which is here at issue will then be phased out over a twenty year period, and only the Tampa Palms Community Development District will remain to operate the total acreage. The existing district is better suited to have on-going maintenance functions because it already has a maintenance facility, vehicles and equipment, and a staff of maintenance workers, and thus, the costs associated with establishing a second maintenance unit can be avoided. The initial board of supervisors for this proposed district are shown as Exhibit D to the petition, to include: William I. Livingston, Chairman Tampa Palms Development Corporation 5209 Tampa Palms Boulevard Tampa, FL 33647 James W. Apthorp, Vice Chairman Gulfstream Development Corporation 5209 Tampa Palms Boulevard Tampa, FL 33647 Charles Davis, Sr. Davis Brothers Insurance Agency, Inc. 4401 West Kennedy Boulevard Tampa, FL 33602 Steven J. Kuzma Ernst & Whinney 1 Tampa City Center, Suite 2000 Tampa, FL 33602 Joseph House United Services Automobile Association Southeast Regional Home Office 5505 West Cypress Street Tampa, FL 33607 Based upon the representation of counsel for the Petitioner who prepared the petition, the absence of any dispute among those persons in attendance at the local public hearing, and upon review and consideration of said petition and evidence presented at the public hearing, it is found that statements contained therein are true and correct, as required by Section 190.005(1)(e)1, Florida Statutes. The creation of the district is found to be consistent with the State and City of Tampa Comprehensive Plans, as required by Section 190.005(1)(e)2. A specific analysis is as follows: State Comprehensive Plan Natural Systems and Recreational Lands (Section 187.201(10)(a),(b)10-13, Florida Statutes) -- The proposed district will provide residents of the Tampa Palms community with recreational opportunities which would not otherwise be available. Residents of the existing Tampa Palms Community Development District have three parks, jogging and bike paths, as well as sidewalks throughout the community. These parks also provide a means of preserving environmentally sensitive lands and protected species habitat. Similar natural systems and recreational lands will be provided in the proposed district. Land Use (Section 187.201(16)(a),(b)1, Florida Statutes) -- The location of this proposed district has been designated as a regional activity center in the City of Tampa and Regional Comprehensive Plans. Thus, this is an area which has been recognized as appropriate for growth. The lands within the proposed district are subject to an existing development order that was approved prior to the City's adoption of its North Tampa Transportation Network, and which is currently under review in order to approve a change in alignment of the transportation network to match the network within the community with the City's proposed network. The City has constructed a major sewer force main along County Road 581 through the proposed boundaries of the district, and therefore, approval of this district will maximize the City's investment by encouraging planned growth in an area in which the City has a considerable investment. Public Facilities (Section 187.201(18)(a), (b)3, 4,6,7,9, Florida Statutes) -- The planning and financing mechanisms available to the district for providing public facilities are consistent with this goal and policies. Bonding capabilities provide an innovative but stable source of revenue, and the benefit-allocation analysis which will be performed as part of the bond validation process will ensure that costs incurred will be allocated to those who will benefit from available facilities. Since private investment will be required to finance part of the improvements, a partnership between the private and public sectors will be formed, with costs allocated to those who benefit from the resulting improvements. Transportation (Section 187.201(20)(a), (b)13,14, Florida Statutes) -- The transportation network within the proposed district will be aligned with the North Tampa Transportation Network, and thereby provide a coordinated approach to transportation improvements. Financing mechanisms and private-public sector financing partnerships will provide the means by which the district will be able to acquire dedicated rights-of-way prior to commencement of development, and this will result in lower costs for the district. Government Efficiency (Section 187.201(21)(a), (b)1, 2,5,13 Florida Statutes) -- This proposal would create an independent special taxing district, and will promote cooperation in governmental activities between the City of Tampa, Hillsborough County and the Petitioner. Neither the City nor County expressed any opposition to this petition at the public hearing. It is reported that residents within the existing Tampa Palms Community Development District have stated at public hearings held for two bond issues, that they support the added costs for services which the existing district provides. The Petitioner intends to negotiate the terms of an agreement with local government which will set forth the plan for development of the district's proposed transportation network in order to ensure that the district constructs those facilities which the City believes will be compatible with its long-term plans. City of Tampa Comprehensive Plan Recreation and Open Space Element -- The City of Tampa northeast annexation area, which is the area in which the proposed district is located, has been designated as an area which will have a major impact upon future recreational needs, requiring at least 48 acres of neighborhood park space to be established through a cooperative use agreement with the property owners within the annexation area. One of the purposes informing this district is to provide residents of Tampa Palms with recreational opportunities which would not otherwise be available. The existing Tampa Palms Community Development District provides residents with three parks, including playground, picnic, volleyball, tennis and restroom facilities, as well as jogging and bike paths, and sidewalks. While these existing recreational facilities were established jointly by the developer and the existing district, the district has ongoing maintenance responsibilities which will continue even after development activities have ceased. Similar open space and recreational uses are proposed for this new district. Land Use Element -- The establishment of this district will provide a means of financing the construction of the transportation network set forth in the Transportation and Capital Improvement Elements of the City's Plan. Additional financing sources are needed to fund the network for already approved development, and the district will be able to issue bonds, which special assessments will be pledged to repay. Since the Tampa Palms area has been designated as a regional activity center in the City and Regional Comprehensive Plans, this area is recognized as appropriate for growth. Approval of this district is consistent with this designation, and will encourage growth in an area in which the City has a substantial capital investment, having constructed a major sewer force main along County Road 581 through the district's boundaries. Capital Improvement Element -- With additional planning and financing mechanisms available to the District, such as the issuance of bonds, a stable source of revenues and financing will be provided which will allow those who benefit from the facilities which will become available to pay their share of the costs of improvements. The district proposes to provide, and finance, needed transportation and open space facilities in an area designated for growth within the City. Thus, approval of the district is consistent with the City's stated capital improvement goal. The land within the proposed district encompasses approximately 5,200 acres, is contiguous and compact, and includes an area which has undergone review as a development of regional impact under Chapter 380, Florida Statutes. When fully developed, it is proposed that the district will contain 8,700 dwelling units and over 20 million square feet of office and retail uses in a type of urban village. According to Toxey A. Hall, P.E., of the civil engineering firm of Heidt and Associates, Inc., the area of the land within the proposed district is of sufficient size, compactness and contiguity to be developed as one functional interrelated community, as required by Section 190.005(1)(e)3. The creation of this district will allow the transportation and open space requirements of this community to be addressed without having to wait for local governments to finance infrastructure, and would avoid the usual situation where growth occurs before services are available resulting in significant traffic congestion, and the lack of other basic services for residents. The lands in this district are primarily under one ownership and one master plan. The Petitioner has prior experience with the Tampa Palms Community Development District. Therefore, the Petitioner has the knowledge and ability to carry out organized, efficient and planned growth and development which will match the size and cost of facilities needed to actual development in the district. The creation of this district will result in the availability of lower financing costs than would otherwise be available to a private developer. The presently forecasted interest rate which would be available to the district is nine and one-half per cent, whereas for private developers the forecasted rate is one and a half to two per cent over the prime rate of ten and one-half to eleven per cent. Additionally, the rate available to the district is fixed, while for private developer's it is an adjustable rate. The formation of this district presents a way by which capital infrastructure can be delivered in an area appropriate for growth without overburdening local government and taxpayers. Thus, the district is the best alternative available for delivering community development services and facilities to the area to be serviced by the district, as required by Section 190.005(1)(e)4. The development within the proposed district is governed by Chapter 380, Florida Statutes. Previously, development orders were issued for Tampa Palms and a portion of the proposed new district known as Tampa Tech. These two development orders are now being combined into one development order, and it is represented that local, regional and state governmental agencies regulating developments of regional impact have reviewed and approved the level of development planned, including the plans for infrastructure. The City of Tampa's comprehensive plan has been approved by the Department of Community Affairs, and, as found above, the creation of this new district will be consistent with major elements of the City's Plan. Thus, the proposed services and facilities of this district will be compatible with the services and uses of existing local and regional community development services and facilities, as required by Section 190.005(1)(e)5. The residents within the existing Tampa Palms Community Development District have attended numerous meetings and public hearings of the district at which they have confirmed their willingness to pay additional taxes to receive an increase in public services. They have experienced the quality of open space maintenance and the effectiveness of the transportation network in the existing district, and it is represented that the residents support the increased costs associated with the district as long as infrastructure is provided in advance of development. The Petitioner has established that this is an area which is amenable to separate special-district government, as required by Section 190.005(1)(e)6, and in fact, the City of Tampa has designated this specific area as one for which a community development district would be a viable alternative.

Recommendation Based upon the foregoing, it is recommended that the Florida Land and Water Adjudicatory Commission grant this Petition and establish the Tampa Palms Open Space and Transportation Community Development District in accordance with Section 190.005(1)(f), Florida Statutes, with those boundaries set forth in the legal description contained at Exhibit B of the Petition, and with those initial members of the board of supervisors shown at Exhibit D of the Petition. RESPECTFULLY SUBMITTED AND ENTERED this 18th day of October, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1989. COPIES FURNISHED: Cynthia Henderson, Esquire 5209 Tampa Palms Boulevard Tampa, FL 33647 John Dixon Wall, Esquire Assistant County Attorney 725 East Kennedy Boulevard Tampa, FL 33602 Jeffrey T. Shear, Esquire Assistant City Attorney Fifth Floor, City Hall 315 East Kennedy Boulevard Tampa, FL 33602 Patty Woodworth, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001 Information Copies to Persons In Attendance: Gordon J. Schiff, Esquire P.O. Box 1531 Tampa, FL 33601 Keith W. Bricklemyer, Esquire 777 South Harbour Island Blvd. Suite 350 Tampa, FL 33602 Richard D. Eckhard, Esquire P.O. Box 1288 Tampa, FL 33601

Florida Laws (4) 187.201190.002190.003190.005 Florida Administrative Code (2) 42-1.00942-1.012
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COCOA BEACH WOMAN'S CLUB FOUNDATION, INC. vs DEPARTMENT OF REVENUE, 97-000699 (1997)
Division of Administrative Hearings, Florida Filed:Melbourne, Florida Feb. 11, 1997 Number: 97-000699 Latest Update: Oct. 24, 1997

The Issue The issue for consideration in this case is whether the Cocoa Beach Woman’s Club Foundation, Inc., should be granted an exemption from Florida sales tax under the provisions of Section 212.08(7)(n), Florida Statutes.

Findings Of Fact At all times pertinent to the issues herein the Respondent, Department of Revenue, was the state agency responsible for the collection of a sales tax on goods in Florida, and for granting exemptions therefrom to appropriate agencies. The Petitioner, Cocoa Beach Woman’s Club Foundation, Inc. (Foundation) was a charitable organization granted an exemption from federal income tax under Section 501(c)(3) of the United States Internal Revenue Code. The Foundation was formed in May 1995 as a separate organization, but a part of the Cocoa Beach Woman’s Club, by members of the Club. The Foundation was established to raise funds for charitable projects and scholarships for high school graduates and the tutoring of elementary school students. Prior to the formation of the Foundation, its activities were carried out by the Cocoa Beach Woman’s Club from the Club’s founding in 1965 until the formation of the Foundation in 1995. The Foundation is headed by an elected executive officer. On October 11, 1996, Jeanne Zophi, the Foundation’s treasurer, submitted an Application For Consumer’s Certificate of Exemption from Sales and Use tax to the Florida Department of Revenue. Enclosed with the application were the previously mentioned determination of exemption from federal income tax, a statement of purpose required by the Department’s rule, the organization’s Articles of Incorporation, the most current year statement of income, a financial statement for the fiscal year ending April 30, 1996, and the Foundation’s annual financial statement dated April 30, 1997. On December 31, 1996, after review of the application, the Department of Revenue issued its Notice of Intent to Deny, alleging that, based on the information provided, it appeared that while the organization may have provided scholarship money, the funds were given directly to the students and not to the school for the school’s use. A second basis for denial was the Department’s contention that that primary purpose of the Foundation’s charitable activities was not directed toward minors, seventeen and younger. The overall purposes of the Foundation’s activities are to raise funds for the area schools’ wish lists, for Alzheimer’s Disease research and treatment, for the payment of certified teachers to provide a tutor program to students in the local elementary and middle schools, and, since 1965, for college scholarships to any high school senior from Brevard County. Each year the Foundation sponsors a contest to afford area students the opportunity to raise funds for the Foundation’s scholarship and charitable programs. The operation culminates in a Ball, a dinner dance to which tickets are also sold to the public for $35.00. The day before the Ball, the candidates turn their funds in to the Ball chairman. The candidate who raises the most money is named Queen of the Ball. The Ball expenses are paid from the funds raised by the sale of the tickets to the public, not from the money raised by the candidates. The scholarships, in the amount of $3,000 to the Queen and $1,500 to each of the others, are paid from the money raised by the candidates as supplemented by other funds supplied by the Foundation. The scholarship recipients can select their own college, and the money for the scholarship is paid by the Foundation directly to the school. The candidates are chosen from applications submitted by individuals through their respective schools. The Foundation works closely with high school counselors to publicize the opportunity and to encourage applicants. When the applications are received by the Foundation, the scholarship chairman and staff redact the names and gender of the applicants, and the selection of candidates to participate in the fund-raising portion of the procedure is based on the applicants’ SAT scores, their grades, their leadership their extra-curricular activities, and the like. By far the largest number of applicants comes from Cocoa Beach High School. Whereas the scholarship program is the largest user of qualifying funds, another program is the tutoring program wherein certified teachers are hired by the Foundation to provide necessary tutoring to appropriate students in selected public and private schools. The tutoring program is clearly a benefit to minors, and the Department so admits. In addition, each Spring, the Foundation presents a number of $50.00 government bonds, and plaques to deserving students in the Brevard County school system for academic excellence. During the 1995-1996 school season, the Foundation awarded five college scholarships totaling $6,500.00. Though at the time each check was issued, some of the recipients had reached their eighteenth birthday, the determination of recipients, and the notification to them of their selection, were made prior to their eighteenth birthday. In addition to the five scholarships, the Foundation also spent $4,210.50 on the tutor program and $943.70 for other qualifying local contributions. Taken together, the total qualifying contributions amounted to $11,654.20, which constituted 62 percent of the Foundation’s total donations during the period and which were somewhat in excess of $18,000. For the fiscal year ending April 30, 1997, the Foundation received donations totaling $50,597.38. Of that amount, $35,917 was dedicated to minors. This constituted 71 percent of the total. Respondent presented no evidence to contradict the evidence presented by the Petitioner.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a Final Order granting the Cocoa Beach Woman’s Club Foundation, Inc., an exemption from Florida sales tax. DONE AND ENTERED this 25th day of July, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 25th day of July, 1977. COPIES FURNISHED: John R. Kancilia, Esquire O’Brien, Riemenschneider, Kancilia and Lemonidis, P.A. 1686 West Hibiscus Boulevard Melbourne, Florida 32901 Kevin J. ODonnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100

Florida Laws (3) 120.57210.50212.08
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TRADEMARK PALMS, INC., D/B/A PALMCO vs TOULLA XIOTAS, INC., D/B/A GULF BREEZE LANDSCAPING, AND FRONTIER INSURANCE COMPANY OF NEW YORK, 97-004725 (1997)
Division of Administrative Hearings, Florida Filed:Fort Myers, Florida Oct. 14, 1997 Number: 97-004725 Latest Update: Mar. 16, 1998

The Issue The issue is whether Respondent, Toulla Xioutas, Inc., owes Petitioner money for the purchase of landscape plants and, if so, how much.

Findings Of Fact As is relevant in this case, Petitioner sold Respondent, Toulla Xioutas, Inc., d/b/a Gulf Breeze Landscaping (Respondent), numerous palm trees on three dates. The first sale took place on February 17, 1997, and consisted of 20 palm trees for a total of $1270. Respondent paid all but $34 of this sum. The second sale took place on March 3, 1997, and consisted of 25 palm trees for a total of $1887.50. The third sale took place on March 24, 1997, and consisted of 15 palm trees for a total of $1721. Respondent never paid anything for these two purchases, which total $3608.50. The palm trees conformed to the items ordered by Respondent in type, quality, and quantity. Petitioner repeatedly tried to obtain payment for these trees, but Respondent would not even respond to his calls.

Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner $3642.50. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Mark Dean, President Trademark Palms, Inc. Post Office Box 2198 Pineland, Florida 33945 David Joy Toulla Xioutas, Inc., d/b/a Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Lisa DeSantis Surety Claims Analyst Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800

Florida Laws (2) 120.57604.21
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