The Issue The issue in this case is whether Respondent owes Petitioner money on a citrus contract and, if so, how much.
Findings Of Fact Petitioner owns citrus groves in Wauchula and one is near Zolfo Springs. Due to its proximity to a homesite, the latter grove is called the homeplace grove. Respondent operates a citrus packinghouse and a small retail outlet for citrus. On October 7, 1994, Petitioner and Respondent entered into a contract under which Petitioner agreed to sell to Respondent naval oranges at the price of $6 per box on the tree. Petitioner insisted on the contract and supplied the form. The contract states that the fruit "will be picked by Dec. 20, 1994." This is handwritten in the blank space for quantity of fruit. Elsewhere the contract provides a space for a completion date for picking, but this space is left blank. The contract adds: "However, notwithstanding the foregoing provision, Buyer, at its sole discretion[,] shall determine the dates and times for accomplishing the picking, loading, or hauling of said fruit." The contract notes that there are an estimated 3000 boxes at the Wauchula grove and an estimated 500 boxes at the homeplace grove. The contract states: Buyer shall only be required hereunder to accept delivery of the estimated quantity of fruit set forth herein; however, Buyer may, at its sole option, elect to accept delivery of all fruit grown or being grown at the grove locations described above at the prices specified herein. After signing the contract, the price of navel oranges dropped considerably. Also, Respondent had been relying on a third party to purchase much of the fruit from him, but the third party did not do so. Through December 9, 1994, Respondent took delivery on 1662 boxes of navel oranges. Petitioner picked the first 820 boxes, for which Respondent paid an additional, agreed-upon $2 per box. Respondent picked the remainder of the 1662 boxes, for which Respondent paid $11,612, pursuant to the contract. Petitioner became increasingly concerned with Respondent's slow progress. They agreed to reduce the price to $5 per box for 60 boxes picked on December 13, 1994, and then $4 per box for 360 boxes picked after the December 20 picking date stated in the contract. Pursuant to their new agreement, Respondent paid $300 for the 60 boxes picked on December 13, 1994, and $1440 for the remaining 360 boxes picked between December 27, 1994, and January 11, 1995. Believing that Respondent was obligated to take the entire output from the two groves, which proved to be a total of 4232 boxes, Petitioner's principal concluded that Respondent could not meet its contractual obligations. Without notice to Respondent, Petitioner agreed with Mt. Dora Growers Cooperative to pick the remaining fruit. The growers coop picked 920 boxes on January 11, 1995, 900 boxes on January 12, 1995, and 330 boxes on January 16, 1995. For a total of 2150 boxes, the growers coop paid Petitioner $498.84, or $0.23 per box. Petitioner had better luck with the homeplace oranges. By contract dated January 24, 1995, again without notice to Respondent, Petitioner sold 500 boxes of navel oranges to Keith Watson, Inc. for $2 per box. Respondent took delivery of 1220 boxes in October, 122 boxes in November, 320 boxes through December 9, 380 boxes at reduced prices for the rest of December, and 40 boxes in the first 11 days of January. This declining trend suggests problems. However, this fact alone does not prove an anticipatory breach by Respondent. Nothing in the record establishes Respondent's intent to repudiate the contract. There was still time for Respondent or, more likely, a third party to pick the remaining boxes for which Respondent was liable (1418). The growers coop removed 1820 boxes in two days. Also, the price and urgency of the growers coop sale are undermined by the sale two weeks later of 500 boxes at $2 per box.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint. ENTERED on July 7, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on July 7, 1995. COPIES FURNISHED: W. Ralph Durrance, Jr. P.O. Box 5647 Lakeland, FL 33807-5647 Gary Whidden Whidden Citrus & Packinghouse, Inc. 396 Country Road 630A Frostproof, FL 33843 Florida Farm Bureau General Insurance Company P.O. Box 147030 Gainesville, FL 32614-7030 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800
The Issue Whether the Respondent owes payment to the Petitioners for citrus sold by the Petitioners to the Respondent and, if so, what amount of payment is due.
Findings Of Fact Rogers Brothers Fruit Company was a licensed Florida citrus dealer in Lakeland, Florida, license #110, and as such posted a dealers bond for the 1992- 93 production season. Rogers Brothers Fruit Company, Incorporated was also a licensed Florida citrus dealer in Lakeland, Florida, license #111, and as such posted a dealers bond for the 1992-93 production season. In these cases, both Rogers Brothers Fruit Company and Rogers Brothers Fruit Company, Incorporated dealt interchangeably with, and are equally liable to, the Petitioners. CASE NO. 94-5393 R. T. Poppell and Carl Carpenter, Jr. are citrus growers in Florida. By contract entered into in October, 1992, Poppell and Carpenter sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation based on Erly Juice contract." CASE NO. 94-5394 R. T. Poppell is a citrus grower in Florida. By contract entered into in October, 1992, Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract." CASE NO. 94-5395 Jack P. Sizemore is a citrus grower in Florida. By contract entered into in October, 1992, Sizemore sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract." CASE NO. 94-5396 Mac A. Greco, Jr., and R. T. Poppell are citrus growers in Florida. By contract entered into in October, 1992, Greco and Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract." CASE NO. 94-5397 Maple Hill Groves, Inc., is in the business of growing oranges in Florida. By contract entered into in November 1992, Maple Hill sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract." Erly Juice was a Florida company in the business of acquiring and processing citrus for juice. Although two of the contracts at issue in this proceeding indicate payment is based on participation in the Holly Hill contract, all parties apparently agree that the Erly Juice contract was the relevant payment reference. In this case, Rogers Brothers had entered into agreements with Erly Juice for a specified quantity of oranges. Rogers, in turn, contracted with growers to obtain the fruit Rogers needed to meet the obligation to Erly. Payment to the growers was to be based on "participation." Essentially, "participation" payment means that individual citrus growers get a proportionate share of the proceeds obtained by the buyer. During the 1993 citrus production season, Erly began experiencing financial difficulties. By letter of August 25, 1993, Erly notified citrus suppliers that the Erly plant in Lakeland had been sold and that the company had been reorganized. The letter further states as follows: We have now completed the calculation of the amount due for participants in our early/mid season orange pool. Our interim estimation of the final participation price is $.57 per lb. solid. We are, however, unable to pay the 25 percent advance amount due at this time. Negotiations continue with our bank to resolve this problem. By letter of September 29, 1993, Erly notified Rogers Brothers that Erly was unable to pay its obligations. The letter states: As we discussed on the phone this morning, ERLY Juice is unable to pay 100 percent of the amount due under our fruit contracts. We have, however, negotiated additional credit to allow us to offer 75 percent of the amount due in order to settle without litigation expense.... ...If you agree to settle our obligations to you for $22,630.54, please sign the attached Settlement Agreement and Release.... Rogers Brothers accepted the settlement offer. The settlement amount was calculated at 75 percent of the originally estimated $.57 lb. solid payment. The resulting payment is $.4275 lb. solid. Rogers Brothers, in turn, paid each Petitioner an amount equal to $.4275 lb. solid for the fruit obtained from each grower. The Petitioners assert that they are entitled to additional funds from Rogers Brothers in the amount of the 25 percent of the original $.57 estimate. The evidence fails to support the assertion.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: The Florida Department of Agriculture and Consumer Services enter a Final Order dismissing the Petitions for Relief filed in these cases. DONE and RECOMMENDED this 16th day of August, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 16th day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following constitute rulings on proposed findings of facts submitted by the parties. Petitioners The Petitioners' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: I. Rejected, contrary to the evidence. Two of the contracts specify payment is based on the Holly Hill contract. Rejected, cumulative. Rejected, contrary to the evidence which establishes that the $.57 lb. solid payment was estimated. P, Q, R. Rejected, irrelevant. The Petitioners had no contract with Erly. S, T, U, V, W, X. Rejected, unnecessary. The evidence fails to establish that further payment from Rogers Brothers to the Petitioners is due under the terms of the contracts. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Michael S. Edenfield, Esquire 206 Mason Street Brandon, Florida 33511 Michael D. Martin, Esquire 200 Lake Morton Drive, Suite 300 Lakeland, Florida 33801
The Issue The issue to be determined in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017- 108, entitled “SAIL Financing of Affordable Multifamily Housing Developments To Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits” was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. To promote affordable housing in Florida, Florida Housing offers a variety of programs to distribute housing credits. (Housing credits, also known as tax credits, are a dollar-for-dollar offset of federal income tax liability.) One of these programs is the State Apartment Incentive Loan program (“SAIL”), which provides low-interest loans on a competitive basis to affordable housing developers. SAIL funds are available each year to support the construction or substantial rehabilitation of multifamily units affordable to very low- income individuals and families. See § 420.5087, Fla. Stat. Additional sources of financial assistance include the Multifamily Mortgage Revenue Bond program (“MMRB”) and non- competitive housing credits. Florida Housing administers the competitive solicitation process to award low-income housing tax credits, SAIL funds, nontaxable revenue bonds, and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive application process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The Request for Application at issue in this matter is RFA 2017-108, entitled “SAIL Financing of Affordable Multifamily Housing Developments to Be Used in Conjunction with Tax-Exempt Bond Financing and Non-Competitive Housing Credits.” Florida Housing issued RFA 2017-108 on August 31, 2017. Applications were due by October 12, 2017.6/ The purpose of RFA 2017-108 is to distribute funding to create affordable housing in the State of Florida. Through RFA 2017-108, Florida Housing intends to award approximately $87,000,000 for proposed developments serving elderly and family demographic groups in small, medium, and large counties. RFA 2017-108 allocates $46,279,600 to large counties, $32,308,400 to medium counties, and $8,732,000 to small counties. RFA 2017-108 established goals to fund: Two Elderly, new construction Applications located in Large Counties; Three Family, new construction Applications located in Large Counties; One Elderly, new construction Application located in a Medium County; and Two Family, new construction Applications located in Medium Counties. Thirty-eight developers submitted applications in response to RFA 2017-108. Of these applicants, Florida Housing found 28 eligible for funding, including all Petitioners and Intervenors in this matter. Florida Housing received, processed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2017-108, Florida Administrative Code Chapters 67- 48 and 67-60, and applicable federal regulations. RFA 2017-108 provided that applicants were scored based on certain demographic and geographic funding tests. Florida Housing sorted applications from the highest scoring to the lowest. Only applications that met all the eligibility requirements were eligible for funding and considered for selection. Florida Housing created a Review Committee from amongst its staff to review and score each application. On November 15, 2017, the Review Committee announced its scores at a public meeting and recommended which projects should be awarded funding. On December 8, 2017, the Review Committee presented its recommendations to Florida Housing’s Board of Directors for final agency action. The Board of Directors subsequently approved the Review Committee’s recommendations and announced its intention to award funding to 16 applicants. As a preliminary matter, prior to the final hearing, Florida Housing agreed to the following reassessments in the scoring and selection of the applications for funding under RFA 2017-108: SP Lake and Osprey Pointe: In the selection process, Florida Housing erroneously determined that SP Lake was eligible to meet the funding goal for the “Family” demographic for the Family, Medium County, New Construction Goal. (SP Lake specifically applied for funding for the “Elderly” demographic.) Consequently, Florida Housing should have selected Osprey Pointe to meet the Family, Medium County, New Construction Goal. Osprey Pointe proposed to construct affordable housing in Pasco County, Florida. Florida Housing represents that Osprey Pointe is fully eligible for funding under RFA 2017-108. (While Osprey Pointe replaces SP Lake in the funding selection for the “Family” demographic, SP Lake remains eligible for funding for the “Elderly” demographic.) Sierra Bay and Northside II: In the scoring process, Florida Housing erroneously awarded Sierra Bay proximity points for Transit Services. Upon further review, Sierra Bay should have received zero proximity points. Consequently, Sierra Bay’s application is ineligible for funding under RFA 2017-108. By operation of the provisions of RFA 2017-108, Florida Housing should have selected Northside II (the next highest ranked, eligible applicant) for funding to meet the Elderly, Large County, New Construction Goal. Florida Housing represents that Northside II is fully eligible for funding under RFA 2017-108. Harbour Springs: Florida Housing initially deemed Harbour Springs eligible for funding under RFA 2017-108 and selected it to meet the Family, Large County, New Construction Goal. However, because Harbour Springs and Woodland Grove are owned by the same entity and applied using the same development site, under rule 67-48.004(1), Harbour Springs is ineligible for funding. (Florida Housing’s selection of Woodland Grove for funding for the Family, Large County, New Construction Goal, is not affected by this determination.) The sole disputed issue of material fact concerns Liberty Square’s challenge to Florida Housing’s selection of Woodland Grove to meet the Family, Large County Goal. Liberty Square and Woodland Grove applied to serve the same demographic population under RFA 2017-108. If Liberty Square successfully challenges Woodland Grove’s application, Liberty Square, as the next eligible applicant, will be selected for funding to meet the Family, Large County Goal instead of Woodland Grove. (At the hearing on December 8, 2017, Florida Housing’s Board of Directors awarded Woodland Grove $7,600,000 in funding.) The focus of Liberty Square’s challenge is the information Woodland Grove provided in response to RFA 2017-108, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” Liberty Square argues that Woodland Grove’s application is ineligible because its Development Location Point, as well as the locations of its Community Services and Transit Services, are inaccurate. Therefore, Woodland Grove should have received zero “Proximity” points which would have disqualified its application for funding. RFA 2017-108, Section Four, A.5.d(1), states, in pertinent part: All Applicants must provide a Development Location Point stated in decimal degrees, rounded to at least the sixth decimal place. RFA 2017-108 set forth scoring considerations based on latitude/longitude coordinates in Section Four, A.5.e, entitled “Proximity.” Section Four, A.5.e, states, in pertinent part: The Application may earn proximity points based on the distance between the Development Location Point and the Bus or Rail Transit Service . . . and the Community Services stated in Exhibit A. Proximity points will not be applied to the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference ” In other words, the Development Location Point identified the specific location of an applicant’s proposed housing site.7/ Applicants earned “proximity points” based on the distance between its Development Location Point and selected Transit and Community Services. Florida Housing also used the Development Location Point to determine whether an application satisfied the Mandatory Distance Requirement under RFA 2017-108, Section Four A.5.f. To be eligible for funding, all applications had to qualify for the Mandatory Distance Requirement. The response section to Section Four, A.5.d., is found in Exhibit A, section 5, which required each applicant to submit information regarding the “Location of proposed Development.” Section 5 specifically requested: County; Address of Development Site; Does the proposed Development consist of Scattered Sites?; Latitude and Longitude Coordinate; Proximity; Mandatory Distance Requirement; and Limited Development Area. Section 5.d. (Latitude and Longitude Coordinates) was subdivided into: (1) Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place Longitude in decimal degrees, rounded to at least the sixth decimal place In its application, Woodland Grove responded in section 5.a-d as follows: County: Miami-Dade Address of Development Site: NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032. Does the proposed Development consist of Scattered Sites? No. Latitude and Longitude Coordinate; Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place: 25.518647 Longitude in decimal degrees, rounded to at least the sixth decimal place: 80.418583 In plotting geographic coordinates, a “-” (negative) sign in front of the longitude indicates a location in the western hemisphere (i.e., west of the Prime Meridian, which is aligned with the Royal Observatory, Greenwich, England). A longitude without a “-” sign places the coordinate in the eastern hemisphere. (Similarly, a latitude with a negative value is south of the equator. A latitude without a “-” sign refers to a coordinate in the northern hemisphere.) As shown above, the longitude coordinate Woodland Grove listed in section 5.d(1) did not include a “-” sign. Consequently, instead of providing a coordinate for a site in Miami-Dade County, Florida, Woodland Grove entered a Development Location Point located on the direct opposite side of the planet (apparently, in India). At the final hearing, Florida Housing (and Woodland Grove) explained that, except for the lack of the “-” sign, the longitude Woodland Grove recorded would have fallen directly on the address it listed as its development site in section 5.b., i.e., the “NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032.” In addition to the longitude in section 5.d., Woodland Grove did not include a “-” sign before the longitude coordinates for its Transit Services in section 5.e(2)(b) or for any of the three Community Services provided in section 5.e(3). Again, without a “-” sign, the longitude for each of these services placed them in the eastern hemisphere (India) instead of the western hemisphere (Miami-Dade County). In its protest, Liberty Square contends that, because Woodland Grove’s application listed a Development Location Point in India, Florida Housing should have awarded Woodland Grove zero proximity points under Section Four, A.5.e. Consequently, Woodland Grove’s application failed to meet minimum proximity eligibility requirements and is ineligible for funding. Therefore, Liberty Square, as the next eligible applicant, should be awarded funding for the Family, Large County Goal, under RFA 2017-108.8/ Liberty Square asserts that a correct Development Location Point is critical because it serves as the beginning point for assigning proximity scores. Waiving an errant Development Location Point makes the proximity scoring meaningless. Consequently, any such waiver by Florida Housing is arbitrary, capricious, and contrary to competition. At the final hearing, Woodland Grove claimed that it inadvertently failed to include the “-” sign before the longitude points. To support its position, Woodland Grove expressed that, on the face of its application, it was obviously applying for funding for a project located in Miami-Dade County, Florida, not India. In at least five places in its application, Woodland Grove specified that its proposed development would be located in Miami-Dade County. Moreover, several attachments to Woodland Grove’s application specifically reference a development site in Florida. Woodland Grove attached a purchase agreement for property located in Miami-Dade County (Attachment 8). To satisfy the Ability to Proceed requirements in RFA 2017-108, Woodland Grove included several attachments which all list a Miami-Dade address (Attachments 9-14). Further, Woodland Grove submitted a Local Government Verification of Contribution – Loan Form executed on behalf of the Mayor of Miami-Dade County, which committed Miami-Dade County to contribute $1,000,000.00 to Woodland Grove’s proposed Development (Attachment 15). Finally, to qualify for a basis boost under RFA 2017-108, Woodland Grove presented a letter from Miami-Dade County’s Department of Regulatory and Economic Resources, which also referenced the address of the proposed development in Miami-Dade County (Attachment 16). In light of this information, Woodland Grove argues that its application, taken as a whole, clearly communicated that Woodland Grove intended to build affordable housing in Miami-Dade County. Nowhere in its application, did Woodland Grove reference a project in India other than the longitude coordinates which failed to include “-” signs. Accordingly, Florida Housing was legally authorized to waive Woodland Grove’s mistake as a “harmless error.” Thus, Florida Housing properly selected the Woodland Grove’s development for funding to meet the Family, Large County Goal. Florida Housing advocates for Woodland Grove’s selection to meet the Family, Large County Goal, under RFA 2017- 108. Florida Housing considers the omission of the “-” signs before the longitude coordinates a “Minor Irregularity” under rule 67-60.002(6). Therefore, Florida Housing properly acted within its legal authority to waive, and then correct, Woodland Grove’s faulty longitude coordinates when scoring its application. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s current Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process; although, she did not personally participate in the review, scoring, or selection decisions for RFA 2017-108. Ms. Button initially explained the process by which Florida Housing selected the 16 developments for funding under RFA 2017-108. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. The Review Committee members independently evaluated and scored their assigned portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. Ms. Button further explained that applicants occasionally make errors in their applications. However, not all errors render an application ineligible. Florida Housing is authorized to waive “Minor Irregularities.” As delineated in RFA 2017-108, Section Three, A.2.C., Florida Housing may waive “Minor Irregularities” when the errors do not provide a competitive advantage or adversely impact the interests of Florida Housing or the public. See Fla. Admin. Code R. 67- 60.002(6) and 67-60.008. Such was the case regarding Woodland Grove’s application. Heather Green, the Florida Housing staff member who scored the “Proximity” portion of RFA 2017-108, waived the inaccurate longitude coordinates as “Minor Irregularities.” Ms. Green then reviewed Woodland Grove’s application as if the proposed development was located in Miami-Dade County, Florida. Florida Housing assigned Ms. Green, a Multifamily Loans Manager, as the lead scorer for the “Proximity” portion of RFA 2017-108, which included the Development Location Point listed in Exhibit A, section 5.d. Ms. Green has worked for Florida Housing since 2003 and has scored proximity points for Request for Applications for over ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Green. In her deposition, Ms. Green testified that she is fully aware that, to be located in the western hemisphere (i.e., Miami-Dade County), a longitude coordinate should be marked with a negative sign or a “W.” Despite this, Ms. Green felt that the longitude coordinates Woodland Grove used without negative signs, particularly its Development Location Point, were clearly typos or unintentional mistakes. Therefore, Ms. Green waived the lack of a negative sign in front of the longitude coordinates in section 5.d. and section 5.e. as “Minor Irregularities.” Ms. Green understood that she was authorized to waive “Minor Irregularities” by rule under the Florida Administrative Code. Ms. Green felt comfortable waiving the inaccurate longitude coordinates because everywhere else in Woodland Grove’s application specifically showed that its proposed housing development was located in Miami-Dade County, not India. Accordingly, when scoring Woodland Grove’s application, Ms. Green corrected the longitude entries by including a negative sign when she plotted the coordinates with her mapping software. Ms. Green then determined that, when a “-” was inserted before the longitude, the coordinate lined up with the address Woodland Grove listed for the Development Location Point. Therefore, Woodland Grove received proximity points and was eligible for funding under RFA 2017-108. (See RFA 2017-108, Section Five.A.1.) However, Ms. Green acknowledged that if she had scored the application just as it was presented, Woodland Grove would not have met the required qualifications for eligibility. Ms. Button relayed that Florida Housing fully accepted Ms. Green’s decision to waive the missing negative signs in Woodland Grove’s response to section 5.d. and 5.e. as “Minor Irregularities.” Ms. Button opined that Woodland Grove’s failure to place a “-” mark before the longitude was clearly an unintentional mistake. Ms. Button further commented that Florida Housing did not believe that scoring Woodland Grove’s development as if located in the western hemisphere (instead of India), provided Woodland Grove a competitive advantage. Because it was evident on the face of the application that Woodland Grove desired to develop a housing site in Miami-Dade County, Ms. Green’s decision to overlook the missing “-” sign did not award Woodland Grove additional points or grant Woodland Grove an advantage over other applicants. Neither did it adversely impact the interests of Florida Housing or the public. However, Ms. Button also conceded that if Ms. Green had scored the application without adding the “-” sign, Woodland Grove would have received zero proximity points. This result would have rendered Woodland Grove’s application ineligible for funding. Ms. Button also pointed out that Ms. Green waived the omission of “-” signs in two other applications as “Minor Irregularities.” Both Springhill Apartments, LLC, and Harbour Springs failed to include negative signs in front of their longitude coordinates. As with Woodland Grove, Ms. Green considered the development sites in those applications as if they were located in Miami-Dade County (i.e., in the western hemisphere). Ms. Green also waived a mistake in the Avery Commons application as a “Minor Irregularity.” The longitude coordinate for the Avery Commons Development Location Point (section 5.d(1)) was blank. However, Ms. Green determined that Avery Commons had placed the longitude in the blank reserved for Scattered Sites coordinates (section 5.d(2)). When scoring Avery Commons’ application, Ms. Green considered the coordinate in the appropriate section. According to Ms. Button, Florida Housing felt that this variation did not provide Avery Commons a competitive advantage. Nor did it adversely impact the interests of Florida Housing or the public. Finally, Ms. Button explained that the application Florida Housing used for RFA 2017-108 was a relatively new format. In previous Request For Applications, Florida Housing required applicants to submit a Surveyor Certification Form. On the (now obsolete) Surveyor Certification Form, Florida Housing prefilled in an “N” in front of all the latitude coordinates and a “W” in front of all the longitude coordinates. However, the application used in RFA 2017-108 did not place an “N” or “W” before the Development Location Point coordinates. Based on the evidence presented at the final hearing, Liberty Square did not establish, by a preponderance of the evidence, that Florida Housing’s decision to award funding to Woodland Grove for the Family, Large County Goal, under RFA 2017-108 was clearly erroneous, contrary to competition, arbitrary, or capricious. Florida Housing was within its legal authority to waive, then correct, the missing “-” sign in Woodland Grove’s application as “Minor Irregularity.” Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to select Woodland Grove for funding was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-108.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by Liberty Square. It is further recommended that Florida Housing Finance Corporation rescind the intended awards to Sierra Bay, SP Lake, and Harbour Springs, and instead designate Northside II, Osprey Pointe, and Pembroke Tower Apartments as the recipients of funding under RFA 2017-108.10/ DONE AND ENTERED this 19th day of April, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 19th day of April, 2018.
Findings Of Fact Thomas J. Smith, principal at Citrus Grove Junior High School was Carter's supervisor during school years 1974 and part of 1975. It is a mandatory requirement at this school that all teachers sign in and out each school day. As alleged in charges (2) through (4) Carter did not sign in or out on November 27, December 11 and December 12, 1974; as alleged in charge (5) on December 18, 1974, Carter did not sign in until 12:30 P.M. and missed his first class which started at 11:37 A.M.; as alleged in charge (6) Garter on December 18, 1974, left school at 3:00 P.M. without permission; as alleged in charge (7), on December 19, 1974, Carter left school at 1:00 P.M. without permission; as alleged in charge (8), on December 20, 1974, Carter was absent from school without authority; as alleged in charge (9) on January 8, 1975, Carter appeared at school at 12:15 P.M. to sign in, but wrote that he arrived at 11:00 A.M.; and as alleged in charge (10) Carter signed in at 10:00 A.M., stated he had to take his son to the doctor, would return at 11:37 A.M., but remained absent without authority for the balance of the day. No statement from a physician indicating Carter was unable to work on the days he was charged with unauthorized absence was received. Principal Smith held numerous conferences with Carter to discuss his absence problems with the last conference occurring on January 6, 1975. At this conference he advised Carter he could not recommend him for employment next year. Carter did not return to Curtis Grove Junior High School subsequent to January 10, 1975. Richard Artmeier is assistant principal at Ponce de Leon High School, was so serving in October and November 1974, and was Carter's supervisor at his assigned school bus unloading duties. He maintained records of attendances at or absences from the assigned school bus duties. As alleged in charge (11), Carter failed to show up for these duties on October 11,14,15,24,25,30, and 31, and on November 4,5,6,7,8 and 12, 1974. He was due to report for this school bus duty at 8:15 A.M. and remain there until 8:40 A.M. Mr. Artmeier talked to Carter about Carter's absences from this assigned duty, and advised Carter that he (Artmeier) had been assigned to check on those assigned school bus unloading duties. Carter offered no legitimate excuse for his absences. Exhibit 1 is a copy of the original records maintained by Mr. Artmeier insofar as it reflects the absences of Carter. Its admission into evidence was objected to by Carter's Attorney on the grounds that the original showed absences of a Mr. Dixon which had been blanked out on the copy offered and it was, therefore, inconsistent with Mr. Artmeier's testimony. James B. Randolph has been principal at West View Junior High School since July, 1973, and maintains attendance records on assigned teachers. As alleged in Charge 12, as amended at the hearing, Carter was absent without authority on Aug. 28 and 31, 1973; September 10, 18, 21 and 24, 1973; October 1, 2, 3, 5, 8 and 9, 1973; November 7, 8, 9, and 29, 1973; December 5, 10, 14 and 17, 1973; January 2, 4, 7, 8, 9, 10, 14, 15, 16, 17, 18, 21, 22, 25 and 1/2 day June 28, 1974; February 6, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25, 26 and 27, 1974; March 1, 7, 8, 11, 14, 18, 19, 20 and 21, 1974; April 24 and 29, 1974; and May 3, 10, 13, 14, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29 and 30, 1974. Principal Randolph held numerous conferences with Carter relative to his absences. In August, 1973, he held a conference with Carter regarding Carter missing the first day of school. Carter's only excuse was he forgot school opened that day. He acknowledged a problem existed but did not reveal it to Mr. Randolph. At the expiration of the school year Principal Randolph submitted an evaluation of Carter as C, or 3.0, which is deemed unsatisfactory. Despite this evaluation Carter remained an employee of the school board during the school year commencing in the Fall of 1974. Carter's attorney was allowed to proffer that if Carter had been present he would testify that he had serious personal problems which started with a divorce in 1972. In 1973, he started having stomach troubles, was advised that he might be developing an uncer and was advised to take Malox.
The Issue The issues are whether Respondent Delicious Citrus Packing, LLC (Respondent), as a citrus fruit dealer, has failed to pay Petitioner for citrus fruit, as required by section 601.64(4), Florida Statutes; and, if so, the amount that Respondent owes Petitioner.
Findings Of Fact Respondent holds a Citrus Fruit Dealer's License number 252, effective August 31, 2015, for the 2015-16 season. The surety is Respondent Platte River Insurance Company. During the 2015-16 season, Petitioner picked citrus fruit from the groves of various third parties and transported the fruit to Respondent, which cleaned, waxed, and graded the fruit prior to selling it to various retailers, primarily, it seems, in South Florida. During the 2014-15 season, Petitioner and Respondent entered into contracts covering their respective rights and obligations in connection with transactions identical to those set forth in the preceding paragraph. An example is a contract dated April 10, 2015, signed by Petitioner and Respondent, specifying that Petitioner would purchase from a named third party from a named portion of a grove approximately 2000 citrus fruit for a delivered price of $16 per box with payment due upon delivery. The contract provides that Petitioner makes no allowance for fruit not meeting Respondent's specifications because Respondent had examined and preapproved the fruit on the tree. The parties did not document their agreement during the 2015-16 season, but the conditions were identical, although the price per box decreased, as set forth below. As was their practice during the preceding season, prior to the purchase and delivery by Petitioner, representatives of both companies visited the grove with the fruit still on the tree, and Respondent's representative approved the fruit, so, again, the agreement permitted no allowances for nonconforming fruit. Petitioner produced trip tickets documenting the delivery of 791 boxes of citrus fruit--all oranges--from September 25, 2015, through October 24, 2015. At this point, representatives of Petitioner and Respondent met to discuss the price of the fruit. Respondent complained that the fruit was too expensive based on what it could charge its purchasers, so Petitioner went back to the grove owners and negotiated a reduction in price. On November 2, 2015, Petitioner agreed to reduce its price from an undisclosed price per box to $15.50 per box, so as to reduce the outstanding balance for the 7791 boxes already delivered to $120,760.50. At that time, Respondent paid $85,250.50, leaving a balance due of $35,510. The parties promptly resumed their business dealings. A trip ticket dated November 2, 2015, documented the delivery of 550 boxes, for which the agreed-upon price was the $15.50 that the parties had set for the previous deliveries. However, even this price proved too high for Respondent, so the next two trip tickets, dated November 3 and 4, 2015, for a total of 1072 boxes, were priced at $13.50 per box. At some point, Respondent made two payments totaling $8811, and Respondent processed other fruit for Petitioner, earning a total credit of $2486 to be applied to the outstanding balance. These transactions reduced the balance to $47,210, which is the amount that Respondent presently owes Petitioner. The finding in the preceding paragraph reduced Petitioner's claim by $7157. As shown on the invoice dated April 6, 2016, received into evidence as Petitioner Exhibit 5, this balance was carried forward from the 2014-15 season. As explained in the Conclusions of Law, this case is limited to the 2015-16 season due to the timing of the filing of the Complaint. The findings in the preceding paragraphs discredit the testimony of Respondent's witnesses as to bad fruit that could not be sold. First, Respondent bore the risk of fruit that could not be sold for any reason, including spoilage. Second, Respondent did not assert this complaint when it negotiated a new purchase price on November 2, 2015. Third, Respondent did not object to the series of invoices that Petitioner submitted to Respondent, culminating in the April 6 invoice. Fourth, the testimony of Respondent's owner was vague and confusing, but twice seemed to confirm the indebtedness.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent has violated section 601.64(4) by failing to pay Petitioner the sum of $47,210 for citrus fruit that Petitioner sold to Respondent during the 2015-16 shipping season and fixing a reasonable time within which Respondent shall pay such sum to Petitioner. DONE AND ENTERED this 6th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 6th day of March, 2017. COPIES FURNISHED: W. Alan Parkinson, Bureau Chief Bureau of Mediation and Enforcement Department of Agriculture and Consumer Services Rhodes Building, R-3 2005 Apalachee Parkway Tallahassee, Florida 32399-6500 (eServed) Emmitt King, Jr. KAD Harvesting and Hauling, LLC 850 South 21st Street Fort Pierce, Florida 34950 Platte River Insurance Company Attn: Claims Department Post Office Box 5900 Madison, Wisconsin 53705-0900 Douglas A. Lockwood, Esquire Straughn & Turner, P.A. 255 Magnolia Avenue Southwest Post Office Box 2295 Winter Haven, Florida 33880 (eServed) Dwight Johnathan Rhodeback, Esquire Rooney & Rooney, P.A. 1517 20th Street Vero Beach, Florida 32960 (eServed) Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $39,167.58 for mangoes grown by Petitioner and picked and sold by Respondent southeast
Findings Of Fact Petitioner Marcus D. Alston d/b/a Alston Groves is a grower of mangoes in Goulds, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the mangoes, then takes 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 mangoes pays Southeast after receipt of the mangoes, Southeast ascertain's what prices were paid for the mangoes and then calculates its costs and pays the grower the difference. Between June 24 and August 9, 1988, Southeast sold 3,861.2 bushels of mangoes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's mangoes sold by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the mangoes, the percentage of the mangoes sold by Southeast which "graded out" for sale, and the amount of picking and inspection fees charged by Southeast. Although Petitioner claims he had a verbal contract whereby Southeast agreed to pay him a flat rate of $20 per bushel minus picking charges, his Complaint seeks payment based on prices ranging from $6 to $20 per bushel which he also alleges were the market prices quoted to him by Southeast. At final hearing, Petitioner took the position that he is not seeking reimbursement of $20 per bushel but for only the lesser per bushel prices. No competent, substantial evidence was offered to prove that the prices Southeast received for the mangoes were higher than those reflected in Southeast's records. Petitioner claims that 100% of each picking was high quality, saleable fruit. No competent, substantial evidence was offered to justify Petitioner's selection of 100% for all pickings. The 100% figure selected by Petitioner allows for no differences in the amount of marketable mangoes from each picking, and there is no evidence to support the proposition that no matter when during the season the mangoes were picked exactly 100% of them were marketable as top grade mangoes. Further, during final hearing, Petitioner testified regarding his low cull rate, thereby admitting he knew that his mangoes were not 100% marketable. Although Southeast's records erroneously reflect inspection fees paid by Southeast to be deducted by Southeast from the sale price of the mangoes, no inspection fees were actually paid by Southeast, and Southeast has not deducted any inspection fees from Petitioner's account in calculating the net amounts to be paid to Petitioner by Southeast. The parties have stipulated that Southeast is not entitled to deduct picking fees for those batches of mangoes which Petitioner picked himself and delivered to Southeast. Southeast's records reflect that no picking fees were charged to Petitioner for the mangoes grown by Petitioner and sold by Southeast relating to 19 of the 48 tickets at issue in this proceeding. As to the mangoes reflected in 13 additional tickets, at the conclusion of the final hearing the parties requested and were afforded additional time to jointly review the actual picking tickets (not offered in evidence) for the name of the picker on each ticket to ascertain if the picker was a member of Petitioner's crew, thereby entitling Southeast to no picking fee, or a member of Southeast's crew, thereby entitling Southeast to collect a picking fee. The parties were to then file a statement regarding which additional batches of mangoes were picked by Petitioner's own employees. The parties have failed to do so, and Petitioner offered no evidence regarding this point on which a Finding of Fact can be made. Southeast's accounting sheet contains a column entitled "Net Actual" which sets forth the figures Southeast claims it owes Petitioner for the mangoes represented by each picking ticket. The total for that column equals $35,874.68, the total figure which Southeast claims it owes Petitioner. Southeast has paid Petitioner a total of $28,888.51 for his mangoes. Therefore, Southeast owes Petitioner the additional amount of $6,986.17.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Marcus D. Alston d/b/a Alston Groves in the amount of $6,986.17 and that such monies should be paid to him 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 Marcus D. Alston Alston Groves 14100 Southwest 232nd Street Goulds, Florida 33110 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The issue is whether Garden World of Holiday, Inc., d/b/a Garden World (Respondent), and its surety, Platte River Insurance Company, owe funds to Sturon, Inc. (Petitioner), for the sale of agricultural products.
Findings Of Fact The Petitioner was a producer of agricultural products, specifically tropical foliage materials. The Respondent was a dealer of agricultural products and was apparently involved in a large project that required obtaining substantial quantities of tropical foliage plant product. In July 2006, the Respondent contacted the Petitioner and inquired as to the availability of tropical foliage plant product. The Petitioner and the Respondent had not previously done business together. At the beginning of the sales transactions, the Respondent sought, and the Petitioner granted, a line of credit for the plant material purchases. Beginning on July 28, 2006, and continuing through September 22, 2006, the Respondent purchased and took delivery of tropical foliage plant product from the Petitioner. All materials sold by the Petitioner to the Respondent were in response to telephone orders placed by the Respondent. There is no evidence that the Petitioner charged for any plant materials that were not ordered by the Respondent. All charges for all plants sold by the Petitioner to the Respondent were billed on invoices that were sent by the Petitioner to the Respondent within one day of each delivery. The quantities and prices of the plants were clearly set forth on the invoices. The evidence establishes that the Respondent received the invoices and was aware of the prices being charged by the Petitioner. The Respondent has asserted that there were conversations about the prices being charged by the Petitioner, but there was no evidence presented that there was any agreement between the parties under which the Petitioner agreed to reduce the prices being invoiced. Despite the alleged price concern, the Respondent continued to order plant materials from the Petitioner. Based on a review of the invoices, the total cost of the plant materials sold by the Petitioner to the Respondent was $164,362.67. The Respondent has paid a total of $66,968.69 to the Petitioner. The total unpaid amount is $97,393.98. The Petitioner routinely grew various types of foliage product. When the Petitioner's own supplies were insufficient, or the material requested was not of a type grown by the Petitioner, the Petitioner located and obtained plant materials from other producers for purposes of resale to dealers. The prices of plants obtained from other producers for resale included a "markup" for locating and obtaining the materials for purchase by a dealer. In supplying the plant materials requested by the Respondent in this case, the Petitioner sold from its own inventory and obtained materials from other producers for resale to the Respondent. There was no evidence that the markup was unreasonable or was not common practice in the industry. There is no evidence that the Respondent attempted to locate and obtain plant materials from other suppliers rather than from the Petitioner because of dissatisfaction with the Petitioner's prices. At the hearing, counsel for the Respondent asserted that the Respondent's refusal to pay was related to "price gouging" by the Petitioner. There is no evidence that the Petitioner engaged in "price gouging." There was no evidence that the Respondent could not have located and obtained the plant materials from the same sources from which the Petitioner obtained the materials it did not produce. Although prior to the hearing, the Respondent asserted that some plant materials were not of appropriate quality; there was no evidence presented at the hearing of any quality problems that were not immediately resolved at the time of delivery. At one time, the Respondent asserted that the entity for which the Respondent was purchasing and installing plant materials was tax exempt and that the amount owed should have been accordingly reduced, but there was no evidence offered in support of the assertion and no reduction has been set forth in this Recommended Order. The Respondent presented no evidence to establish any legitimate reason to avoid payment of the $97,393.98 owed to the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order directing that the Respondent pay the total of $97,393.98, to the Petitioner, and providing for such other procedures as are appropriate to provide for satisfaction of the debt. DONE AND ENTERED this 9th day of July, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2007.
The Issue The issue in this case is whether Respondent citrus dealer owes Petitioner citrus producer a sum of money for grapefruits that Respondent harvested from Petitioner’s grove.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Sunrise Citrus Groves, Inc. (“Sunrise”) is a producer of citrus, meaning that it grows citrus in this state for market. It is also a Florida-licensed citrus fruit dealer operating within the Department’s regulatory jurisdiction. Tuxedo Fruit Company (“Tuxedo”) is a Florida-licensed citrus fruit dealer. On or about October 18, 2000, Sunrise and Tuxedo entered into a contract under which Tuxedo agreed to harvest “flame” grapefruits from Sunrise’s grove known as “Gulfstream.” are a variety of grapefruit; the varieties are distinguished by the color of the fruit’s meat, e.g. red, ruby, pink.) Tuxedo agreed to pay $4.00 per box of fruit harvested at the Gulfstream grove. Between October 16, 2000 and March 14, 2001, Tuxedo harvested 5,808 boxes of flame grapefruits pursuant to its contract with Sunrise. Accordingly, Tuxedo was obligated to pay Sunrise $23,232 for the fruit. Tuxedo did not pay for the grapefruits harvested from the Gulfstream grove. On October 11, 2001, Sunrise sent Tuxedo an invoice for the past due amount of $23,232. Tuxedo did not object to this statement of account. At hearing, Tuxedo admitted the above facts. Tuxedo’s position was that Sunrise had breached a separate contract relating to red grapefruits which Tuxedo had agreed to harvest from a grove called “Sun Rock.” As a result of this alleged breach, Tuxedo claimed to have suffered damages exceeding the amount sought by Sunrise. It is not necessary to make detailed findings of fact concerning the Sun Rock transaction, however, because the undersigned has concluded that the alleged breach of contract action that Tuxedo attempted to prove is not properly before the Division of Administrative Hearings (“DOAH”). Ultimate Factual Determination Tuxedo failed to pay for the citrus fruit harvested from the Gulfstream grove that was the subject of a contract between Sunrise and Tuxedo. Sunrise performed all of its duties under that contract and is not in breach thereof. Tuxedo, therefore, is indebted to Sunrise in the amount of $23,232. CONSLUSIONS OF LAW The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes. Chapter 601, Florida Statutes, is known as "The Florida Citrus Code of 1949." Section 601.01, Florida Statutes. "Citrus fruit" is defined in Section 601.03(7), Florida Statutes, as all varieties and regulated hybrids of citrus fruit and also means processed citrus products containing 20 percent or more citrus fruit or citrus fruit juice, but, for the purposes of this chapter, shall not mean limes, lemons, marmalade, jellies, preserves, candies, or citrus hybrids for which no specific standards have been established by the Department of Citrus. Additionally, the term “grapefruit” is defined to mean “the fruit Citrus paradisi Macf., commonly called grapefruit and shall include white, red, and pink meated varieties[.]” Section 601.03(22), Florida Statutes. A "citrus fruit dealer" is defined in Section 601.03(8), Florida Statutes, as any consignor, commission merchant, consignment shipper, cash buyer, broker, association, cooperative association, express or gift fruit shipper, or person who in any manner makes or attempts to make money or other thing of value on citrus fruit in any manner whatsoever, other than of growing or producing citrus fruit, but the term shall not include retail establishments whose sales are direct to consumers and not for resale or persons or firms trading solely in citrus futures contracts on a regulated commodity exchange. Both Sunrise and Tuxedo are citrus fruit dealers under this definition. Sunrise also falls within the definition of “producer.” See Section 601.03(29), Florida Statutes (defining the term as “any person growing or producing citrus in this state for market”). Citrus fruit dealers are required to be licensed by the Department in order to transact business in Florida. Section 601.55(1), Florida Statutes. As a condition of obtaining a license, such dealers are required to provide a cash bond or a certificate of deposit or a surety bond in an amount to be determined by the Department "for the use and benefit of every producer and of every citrus fruit dealer with whom the dealer deals in the purchase, handling, sale, and accounting of purchases and sales of citrus fruit." Section 601.61(3), Florida Statutes. Section 601.65, Florida Statutes, provides that "[i]f any licensed citrus fruit dealer violates any provision of this chapter, such dealer shall be liable to the person allegedly injured thereby for the full amount of damages sustained in consequence of such violation." This liability may be adjudicated in an administrative action brought before the Department or in a "judicial suit at law in a court of competent jurisdiction." Id. Section 601.64(4), Florida Statutes, defines as an "unlawful act" by a citrus fruit dealer the failure to pay promptly and fully, as promised, for any citrus fruit which is the subject of a transaction relating to the purchase and sale of such goods. Any person may file a complaint with the Department alleging a violation of the provisions of Chapter 601, Florida Statutes, by a citrus fruit dealer. Section 601.66(1), Florida Statutes. The Department is charged with the responsibilities of determining whether the allegations of the complaint have been established and adjudicating the amount of indebtedness or damages owed by the citrus fruit dealer. Section 601.66(5), Florida Statutes. If the complaining party proves its case, the Department shall "fix a reasonable time within which said indebtedness shall be paid by the [citrus fruit] dealer." Thereafter, if the dealer does not pay within the time specified by the Department, the Department shall obtain payment of the damages from the dealer's surety company, up to the amount of the bond. Section 601.66(5) and (6), Florida Statutes. Sunrise bore the burden of proving the allegations in its Complaint against Tuxedo by a preponderance of the evidence. See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974); Section 120.57(1)(j), Florida Statutes. Sunrise carried its burden of proving that Tuxedo has failed and refused to pay, as agreed, for citrus fruit that Tuxedo harvested from Sunrise’s Gulfstream grove. Tuxedo’s allegation that Sunrise breached a contract unrelated to the one upon which Sunrise has based its demand for payment constitutes an independent cause of action and claim for relief. See Storchwerke, GMBH v. Mr. Thiessen’s Wallpapering Supplies, Inc., 538 So. 2d 1382, 1383 (Fla. 5th DCA 1989). In the parlance of civil litigation, Tuxedo’s contentions would be called a counterclaim. See Haven Federal Savings & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla. 1991)(“A counterclaim is a cause of action that seeks affirmative relief[.]”). Had Sunrise elected to pursue its claim in circuit court pursuant to Section 601.65, Florida Statutes, rather than before the Department, then Tuxedo properly might have sought leave to bring its claim relating to the Sun Rock transaction as a permissive counterclaim. See Rule 1.170(b), Florida Rules of Civil Procedure. But this is an administrative proceeding, and there exists no procedural vehicle through which Tuxedo may assert a permissive counterclaim for breach of contract. The question whether Tuxedo’s claim of breach is properly before DOAH is not merely procedural, but touches the fundamental consideration of subject matter jurisdiction. To be entitled to administrative remedies for Sunrise’s alleged breach of contract, Tuxedo must file a complaint with the agency having jurisdiction in the matter; it cannot directly initiate proceedings before DOAH. See Section 601.66, Florida Statutes. DOAH’s jurisdiction does not attach until the agency refers the dispute to this tribunal for adjudication. Tuxedo has not filed a complaint against Sunrise with the Department, and thus (obviously) the Department has not referred the matter to DOAH. Therefore, DOAH does not have jurisdiction to entertain Tuxedo’s claim for relief based on the alleged Sun Rock transaction. In the alternative, Tuxedo’s allegations arguably might be regarded——and reached——as an affirmative defense. See Kirian, 579 So. 2d at 733 (“[A]n affirmative defense defeats the plaintiff’s cause of action by a denial or confession and avoidance.”). Specifically, Tuxedo’s allegations, if established, might provide the basis for a set off, which is a recognized affirmative defense. See Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., 807 So. 2d 669, 26 Fla. L. Weekly D2811, 2001 WL 1504231, *4 n.2 (Fla. 4th DCA Nov. 28, 2001)(“A set-off is an affirmative defense arising out of a transaction extrinsic to a plaintiff’s cause of action.”). It is concluded, however, that because DOAH does not have subject matter jurisdiction over Tuxedo’s allegations as a counterclaim for breach of contract, the same allegations cannot simply be treated as an affirmative defense and adjudicated on that basis. To be heard, the defense of set off must be within the tribunal’s jurisdiction. See Metropolitan Cas. Ins. Co. of New York v. Walker, 9 So. 2d 361, 363 (Fla. 1942). A contrary ruling would permit Tuxedo to bring in through the back door a claim that was turned away at the front. Even if Tuxedo’s claim were cognizable as an affirmative defense, notwithstanding Tuxedo’s failure properly to initiate such claim pursuant to Section 601.66, Florida Statutes, the issue could not be reached for an independent reason: implied waiver. In the context of a civil suit, a party’s failure to allege an affirmative defense in its responsive pleading effects a waiver thereof. See Gause v. First Bank of Marianna, 457 So. 2d 582, 585 (Fla. 1st DCA 1984)(“Affirmative defenses must be raised in the pleadings or they are waived.”). Since a dealer who disputes the allegations of a complaint filed with the Department under Section 601.66 is required by that statute to submit an answer in writing, it is concluded that a dealer-respondent, like a defendant in a civil lawsuit, waives any affirmative defenses not raised in his responsive pleading. Otherwise, a dealer-respondent could sandbag the claimant at final hearing. Having failed to plead the Sun Rock matter in its response to Sunrise’s complaint, Tuxedo waived the affirmative defense of set off.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order awarding Sunrise the sum of $23,232. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2002. COPIES FURNISHED: John Scarborough, General Manager Sunrise Citrus Groves, Inc. 2410 Southeast Bridge Road Hobe Sound, Florida 33455 John A. Scotto, President Tuxedo Fruit Company 1110 North 2nd Street Fort Pierce, Florida 34950 Sharon Sergeant Continental Casualty Company CNA Plaza Floor 13-South Chicago, Illinois 60685 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 500 Third Street Northwest Post Office Box 1072 Winter Haven, Florida 33882-1072
The Issue The issues for determination in this case are whether Respondent, as a licensed citrus fruit dealer, breached the terms of an oral contract for the purchase of citrus fruit during the 1992-1993 shipping season, whether Respondent misappropriated certain other citrus fruit owned by Petitioner during the 1992-1993 shipping season, and further, whether such actions by Respondent constitute violations of the Florida Citrus Code for which the proceeds of the citrus fruit dealer's bond executed by Co-Respondent should be paid to Petitioner in satisfaction of Petitioner's claim pursuant to Section 601.66, Florida Statutes.
Findings Of Fact Petitioner, Riverfront Groves, Inc., is a corporation with an office in Vero Beach, Florida. At all material times, Petitioner was in the business of selling and marketing citrus fruit. At all material times, Daniel R. Richey was vice-president of Petitioner, in charge of the fresh fruit packing operation. Respondent, Bagaley Groves, is a business with an office in Vero Beach, Florida. At all material times, Respondent operated a citrus fruit gift shipping packinghouse. At all material times, Robert G. Bagaley was the owner of Respondent. Co-Respondent, Nationwide Mutual Insurance Company, is an insurance company, which was authorized to write surety bonds during the 1992-1993 citrus fruit shipping season. On December 10, 1992, Co-Respondent executed, as surety, Citrus Fruit Dealer's Bond No. 77-LP-007-245-0002, in the principal sum of $10,000.00, binding Co-Respondent as surety, to the Florida Commissioner of Agriculture. The terms and conditions of the bond were that Respondent, as the principal executing such bond, would comply with the provisions of the Florida Citrus Code during the 1992-1993 citrus fruit shipping season, and with the terms and conditions of all contracts relating to the purchase, handling, sale, and accounting of citrus fruit. Respondent held a valid citrus fruit dealer's license issued by the Department of Citrus for the 1991-1992 shipping season. On July 16, 1992, Respondent, by and through its owner Robert Bagaley, filed with the Department of Citrus an application for license as a citrus fruit dealer for the 1992-1993 shipping season. As indicated above, Respondent's bond required for licensure was not executed until December 10, 1992, and it was not until January 25, 1993, that Respondent was issued citrus fruit dealer's license No. 0269 for the 1992-1993 shipping season. The license is not specifically retroactive, and merely states that Respondent is ". . . granted a license to engage in the business of Citrus Fruit Dealer through July 31, 1993." At all material times Respondent, by and through its owner Robert Bagaley, held itself out as a licensed citrus fruit dealer in the state of Florida. In the fall of 1992, Respondent learned from a mutual friend, Henry Schacht, that Petitioner had navel oranges located in a grove in Indian River County, Florida, suitable for use in Respondent's fresh fruit packinghouse. In mid-November 1992, Petitioner, through its authorized representative Daniel R. Richey, and Respondent, through its owner Robert Bagaley, agreed that Respondent would purchase approximately 2,400 boxes of navel oranges from Petitioner at $7.00 per box. Respondent did not hold a valid license as a citrus fruit dealer in the state of Florida at the time this oral contract was entered into with Petitioner. Respondent harvested a total of 150 boxes of these navel oranges during the period of November 13 - 17, 1992, for which Respondent paid Petitioner the agreed upon price of $7.00 per box. This payment in the amount of $1,050.00 was made by check dated November 18, 1992. On December 3, 1992, Petitioner delivered a written contract to Respondent setting forth Petitioner's understanding of the terms of their agreement. The contract was executed by Petitioner. Respondent declined to sign the written contract, and the contract was returned to Petitioner on December 10, 1992. In early December 1992, Respondent learned from James Earl Brantley that some of the navel oranges in Petitioner's grove had green mold, a condition that would make the fruit unsuitable for fresh fruit packing. On December 10, 1992, Respondent repudiated the oral contract and notified Petitioner that Respondent could not use, and did not need, any more of Petitioner's navel oranges. Respondent did not inform Petitioner that some of the navel oranges had developed green mold, or that the navel oranges were otherwise not merchantable. At the time Respondent repudiated the oral contract, Respondent did not hold a valid license as a citrus fruit dealer in the state of Florida. By December 10, 1992, the marketing conditions for navel oranges were substantially deteriorating. From December 11 and 15, 1992, Petitioner harvested and processed the balance of the navel orange crop from the grove, some 2,785 boxes. Petitioner attempted to pack the oranges as fresh fruit. The packout ratio of these 2,785 boxes was approximately 18 percent, yielding Petitioner a net return of $78.01, ($129.38 return for 640 boxes picked December 11 and 12, 1992, and a loss of $51.37 on the remainder picked between December 12 and 15, 1992. Petitioner incurred a loss of $19,365.62, as result of Respondent's failure to pay the agreed upon contract price of $7.00 per box for the balance of the navel oranges. At the time Respondent (through Bagaley) notified Petitioner (through Richey) that Respondent did not intend to harvest the balance of the fruit, Petitioner informed Respondent that the remaining fruit would be harvested, that an accounting of the net proceeds for the remaining fruit would be made, and that the parties could then review the matter as to any outstanding indebtedness which might be due under the terms of the oral agreement. Respondent stated that a review after harvesting and accounting was acceptable. Within sixty days thereafter Petitioner (through Richey) received the accounting and met with Respondent (through Bagaley). At that time Respondent did not acknowledge the indebtedness, nor promise to pay the indebtedness to Petitioner. Subsequent to January 25, 1993, Respondent mistakenly picked red grapefruit from a grove owned by Petitioner, which was adjacent to a grapefruit block Respondent had purchased from a different owner. The parties agree that Respondent owes Petitioner $375.00 or $2.50 for 150 boxes of grapefruit picked from this grove. Respondent tendered a check to Petitioner in the amount of $375.00 for payment of the grapefruit; however, Petitioner declined to accept payment for the grapefruit pending resolution of Petitioner's claim for the navel oranges.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department enter a Final Order adjudicating the amount of indebtedness owed Petitioner by Respondent in accordance with Section 601.66, Florida Statutes, is $375.00 for 150 boxes of grapefruit mistakenly harvested. It is further recommended that Petitioner's claim for damages resulting from the contract for navel oranges entered into prior to Respondent's licensure as a citrus fruit dealer during the 1992-1993 shipping season be dismissed. RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of August, 1995. RICHARD HIXSON 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 4th day of August, 1995. APPENDIX As to Petitioner's Proposed Findings: 1-9. Adopted and incorporated. Adopted, except to the extent that Respondent's repudiation of the contract was solely related to market conditions. Adopted except as to Respondent's promise to pay subsequent to January 25, 1993. 12-14. These paragraphs constitute conclusions of law. COPIES FURNISHED: Douglas A. Lockwood III, Esquire PETERSON, MYERS, CRAIG, CREWS BRANDON & PUTERBAUGH, P.A. Post Office Drawer 7608 Winter Haven, Florida 33883-7608 Eugene J. O'Neill, Esquire GOULD, COOKSEY, FENNELL, BARKETT, O'NEILL & MARINE, P.A. 979 Beachland Boulevard Vero Beach, Florida 32963 Brenda Hyatt, Chief Bureau of License & Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Mr. David Z. Cutright Nationwide Mutual Insurance Company 1324 16th Street Vero Beach, Florida 32960
