Findings Of Fact Jack G. Baker, d/b/a Jack G. Baker, is an individual in the business of selling sod to others and installing sod himself. DeBusk Sod, Inc. (DeBusk) is a corporation in which the majority of the shares are owned by Susan D. Meagher, whose husband, James, is the minority shareholder. DeBusk installs sod in the central Florida area. Just prior to July 1992, DeBusk contacted Baker regarding the purchase of sod. Because of an ongoing drought which was affecting the area DeBusk ordered two truckloads of sod to sample the quality of the product immediately prior to July 5, 1992. DeBusk previously had ordered many thousands of dollars worth of sod from Baker. Baker loaded and transported two truckloads of sod to the Meaghers, who were satisfied with the quality of the sod and purchased an additional 186 pallets which they arranged to pick up in Baker's field. There was not a written contract for the sale of sod; however, all of the parties agree that DeBusk ordered 186 pallets of sod at $17.00 per pallet, f.o.b. (free on board) DeBusk's trucks in Baker's field. DeBusk paid Baker $322.00 on August 25, 1992 and $833.00 on September 22, 1992, in partial payment for the sod. There remained a balance owing of $2,007.00 which was not paid by DeBusk. DeBusk ordered the sod after receiving the sample truckloads. James Meagher drove one of the trucks and was present when the sod was cut and loaded. At that time, James Meagher had the opportunity to inspect the sod being cut and loaded. Meagher accepted delivery of the sod in Baker's field. Conflicting testimony was received at the hearing regarding the nature of the warranty on sod in the course of selling this agricultural product. The most credible evidence is that bahia sod is generally sold with an implied warranty that the product is free of large amounts of weeds or disease, and will take root and grow if properly installed and watered. James Meagher testified, and his testimony was uncontroverted, that the sod in question was properly installed and watered. Jack G. Baker testified regarding bahia sod. Bahia sod is exceptionally hardy and, if properly installed and watered, will survive and take root. The sod provided to DeBusk was cut and delivered at the same time as sod which was cut for Baker's own sodding operation and that of another independent sod company. The sod which Baker cut from this field was installed and survived when watered, and Baker received no complaints from the other sodding contractor regarding the sod which Baker had sold him. James and Susan Meagher contacted Mr. Baker when the sod which they had purchased from Baker began to die and asked Mr. Baker to inspect the sod and stand behind the product. Mr. Baker refused to inspect the product asserting that if the sod was dying, DeBusk had failed to water the product as required. DeBusk refuses to pay for that portions of the sod purchased which died because it failed to conform to the implied warranty. Carl Hiers, a sodding contractor, testified regarding bahia sod. If cut too thin during a severe drought, bahia sod can go into shock and die although it is watered. Mr. Hiers did not see the sod in question, and could not offer an opinion about whether it had failed to thrive because it had been cut too thin. Jack Baker testified regarding cutting sod too thin. If sod is cut thick enough to hold together, it is thick enough to survive the shock of being cut and transplanted. A portion of the sod fell from one of the last loads cut for DeBusk and lay in Baker's field for three days before a neighbor of Baker's picked it up and used it to sod an area over a septic tank where it grew and thrived.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DeBusk Sod have sixty days within which to pay to Jack G. Baker d/b/a Jack G. Baker Sod $2,007.00, and failing in that, Auto Owners Insurance Company be required to pay to Jack G. Baker d/b/a Jack G. Baker Sod $2,007.00 from DeBusk Sod, Inc.'s agricultural bond. DONE AND ENTERED this 7th day of May, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 7th day of May, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Jack G. Baker Jack G. Baker Sod 1415 Bruno Road Clermont, FL 34711 James and Susan Meagher DeBusk Sod, Inc. 7555 East Turner Camp Road Inverness, FL 34453 Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800
The Issue Whether or not the Petitioner should be entitled to an extension of the shelf life on its milk and milk products from a ten day period to a twelve day period.
Findings Of Fact Testimony offered by Jay Boosinger, Director of Dairy Industry, for the Department of Agriculture and Gene Smith, Supervisor of Dairy Products Inspection Enforcement, indicated that the Respondent had investigated the request for extension of shelf life from ten days to twelve days on the milk and milk products of the Petitioner. Based on the laboratory analysis of the test samples, they felt that the request should be accepted. This position was stated notwithstanding the fact that the samples taken in the Miami plant were limited in numbers, due to the fact that the petition for extension of shelf life was filed later than a similar petition filed by the Petitioner. Jay Boasinger has as his duty the direction of the program which is designed to regulate the quality of dairy products within the State of Florida. Gene Smith, as his title indicates, is charged with the function of inspection and enforcement of the laws and regulations associated with the diary industry in the State of Florida. Testimony was offered in this hearing which indicated that certain samples of the Petitioner's milk and milk products had been collected at the Petitioner's Miami, Florida plant, the Petitioner's trucks and selected stores which were serviced by the Petitioner. These samples were collected by a dairy plant specialist of the Respondent and in turn were taken to a laboratory of the Respondent for analysis. The laboratory analysis was designed to ultimately determine the number of days that the samples would be acceptable beyond the code expiration date found on the container, which expiration date would have been at the ten day point. There is an exhibit, which is Respondent's Exhibit #1 that identifies the product, collection point, the established expiration date, the laboratory evaluation date and the days that the product was found to be acceptable beyond the ten day, established expiration date. In addition this exhibit contains the laboratory analysis of the products together with attendant correspondence on the issue of the extension of the shelf life. The test samples in Respondent's Exhibit #1 show in the date acceptable pass column, how many days past the ten days the product would have held up without losing flavor and becoming unacceptable in terms of shelf life. The laboratory analyses and summary of those analyses showed available shelf life above the ten day life expressed in the regulation found in Chapter 5D-104(7)(d), Florida Administrative Code.
Recommendation It is recommended that the Respondent grant a shelf life of twelve days on the milk and milk products identified in the course of the hearing held on the question of the petition. DONE and ENTERED this 15th day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. D. Saunders, Zone Manager Sealtest Foods 109 Governors Street Tampa, Florida 33602 Jack Shoemaker, Esquire Resident Counsel 515 Mayo Building Tallahassee, Florida 32304
Findings Of Fact On February 20, 1985, Demaris Hughes, a registered dietician for the office of licensure and certification of the Petitioner, conducted the annual license survey of the Respondent, A. D. Virice and Associates, Inc., d/b/a Hilcrest Retirement Residence. During this inspection, Ms. Hughes observed that milk used for serving for drinking purposes was not from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser of sanitary design, construction, and operation. This was admitted by Maurice Duff and Virginia Duff, who manage and operate the Hilcrest Retirement Residence. On February 20, 1985, Ms. Hughes told Ms. Duff that the containers then being used were in violation of state regulations, and that a period of 30 days was allowed for the Respondent to correct this violation by either serving milk in one-half pint cartons or in an approved bulk dispenser. The Respondent's Retirement Residence has a license for 13 or more residents. The survey conducted on February 20, 1985, noted other deficiencies, all of which were corrected by the time of the resurvey on April 3, 1985. On April 3, 1985, Ms. Hughes again visited Hilcrest Retirement Residence and milk used for serving was still not served from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser. The Respondent had some difficulty arranging for the purchase of milk in one-half pint individual serving containers, and asserted at the hearing that sometime in early April 1985 it finally had an arrangement with a dairy to obtain milk in individual containers. Agents of the Respondent, nonetheless, knew that they had thirty days from February 20, 1985, to correct this violation, and there is no evidence that they sought any extension of time from Ms. Hughes or from the Petitioner. Additionally, although there was testimony as to the fact that the violation was corrected by early April 1985, there was no independent corroborative evidence, such as a written contract with a milk supplier, cancelled checks, or written invoices for purchase of milk in one-half pint containers.
The Issue The issue in this proceeding is whether Respondents committed the offenses set forth in the Administrative Complaint and, if so, what penalties should be imposed.
Findings Of Fact General Findings of Fact The Department of Banking and Finance (the Department) is the agency responsible for the administration of Chapter 516, Florida Statutes, the Florida Consumer Finance Act (the Act). At all times material hereto, Respondents were not licensed by the Department as required by the Act. Cash Cow F1 LLC is located at 1362 Lake Bradford Road, Tallahassee. Cash Cow F2 LLC is located at 220 West Tennessee Street, Tallahassee, Florida. Cash Cow F3 LLC is located at 1 West Jefferson Street, Quincy, Florida. Cash Cow F4 LLC is located at 2107 South Bryon Butler Parkway, Perry, Florida. Cash Cow F5 LLC is located at 2002 South Monroe Street, Tallahassee, Florida. Cash Cow F6 LLC is located at 4157 Lafayette Street, Marianna, Florida. Cash Cow F7 LLC is located at 1246 North Jefferson Street, Monticello, Florida. Cash Cow F8 LLC is located at 2705 Northwest 10th Street, Ocala, Florida. Cash Cow F9 LLC is located at 601 Ridgewood Avenue, Holly Hill, Florida. Cash Cow F10 LLC is located at 700 Eglin Parkway Northeast, Fort Walton Beach, Florida. Cash Cow F11 LLC is located at 234A Miracle Strip Parkway, Fort Walton Beach, Florida. Cash Cow F12 LLC is located at 606-A Beal Parkway, Fort Walton Beach, Florida. Cash Cow F13 LLC is located at 146 West John C. Sims Boulevard, Valparaiso, Florida. Cash Cow F14 LLC is located at 750 John Sims Parkway, Niceville, Florida. Cash Cow F15 LLC is located at 618 South Ferdon Boulevard, Crestview, Florida. Respondent Jeffery Swank is the manager of Cash Cow F1 LLC, Cash Cow F2 LLC, Cash Cow F3 LLC, Cash Cow F4 LLC, Cash Cow F6 LLC, Cash Cow F7 LLC, Cash Cow F8 LLC, Cash Cow F9 LLC, Cash Cow F10 LLC, Cash Cow Fll LLC, Cash Cow F12 LLC, Cash Cow F13 LLC, Cash Cow F14 LLC, and Cash Cow F15 LLC (herein after collectively referred to as "Cash Cow".) Cash Cow engaged in Discount Title Voucher transactions (DTV transactions) within the State of Florida. EZ Cash, Inc., a/k/a EZ Cash Inc. of Georgia (EZ Cash) is a Georgia corporation. Respondent Swank is the president of EZ Cash. EZ Cash also engaged in DTV transactions with the State of Florida, as evidenced by corporate checks bearing that name issued to customers and customer checks made payable to that entity. Description of Typical Transaction Cash Cow and EZ Cash received a check from a customer typically in the amount of $122.00. In exchange for the customer's $122.00 check, Cash Cow and EZ Cash tendered its corporate check in the amount of $100.00, which the customer could cash anywhere but at Cash Cow, and provided the customer with a piece of paper entitled "discount title voucher." The 22-dollar difference between the customer's check and the Cash Cow/EZ corporate check is described in the customer agreement as the "purchase price" of the discount title voucher. Originally, the discount title voucher entitled the bearer to a 50 percent reduction in the first month's interest on a new title loan. Subsequently, the discount title voucher entitled the bearer to 100 percent reduction in the first month's interest on a new title loan. Cash Cow/EZ Cash provided checks to a customer in $100.00 increments. Should the customer have wished to receive $200.00, the customer would have received two $100.00 checks from Cash Cow/EZ Cash in return for writing two $122.00 personal checks. The customer agreement further provides "that the personal check used to purchase the 'Discount Title Voucher' may be redeemed by the customer within 15 days of purchase." Essentially, the customer had two options. A customer could present a cashier's check or money order to Cash Cow in the amount of 122 dollars per 100 dollars borrowed on or before the 15th day, or the customer could extend the date the check could be picked up for an additional 15 days by paying an additional 22 dollars per 100 dollars borrowed on or before the 15th day. If the customer elected to extend the date, an additional discount travel voucher was given to the customer. The amount of times that a customer could extend a transaction was unlimited. The annual percentage interest rate charged by Cash Cow/EZ Cash on a typical transaction equates to 535 percent. In some earlier transactions, customers were charged 25 dollars per 15-day period which equates to an interest rate of 608 percent. Respondents Swank and Shovlain participated in the creation of the DTV transaction. Swank possesses in-depth knowledge of the mechanics of the DTV transaction. Respondents Swank, Cash Cow, and EZ Cash designed and implemented the DTV transaction as a replacement for a previous lending scheme invalidated by the Department. The appearance of the present DTV transaction appeared just two months following the cessation of the previous method of operation. The manager of the Perry, Florida store from April of 1996 until July of 1998 was Beth Hotvedt. Although not involved in the creation of the DTV transaction, she heard Swank refer to the DTV transaction as a "check loan." Internal documents of Cash Cow also characterize the DTV transaction as a loan. A "DTV Checklist" was distributed to various Cash Cow/EZ Cash stores before the stores began engaging in DTV transactions, explaining procedures to be followed when engaging in the transactions. The DTV Checklist was included in the Policy and Procedures Manual, the formulation and writing of which involved the efforts of Respondent Swank. Operational Notes distributed to Cash Cow/EZ Cash stores contained statements that DTV's could be re-written "continually" at 25 dollars interest for 15 days. The Notes emphasized that "[a]ny increase in DTV time must be Refinanced!" The 25 dollar amount was later lowered to 22 dollars. His conversational description of the DTV transaction as a "check loan"; the script which he prepared for stores' use which detailed how the DTV transactions should be described to customers so that "check loans" could be made under the guise of discount title voucher sales; and his involvement in the writing of the Policy and Procedures Manual with its DTV check list emphasizing "Receive check for Loan and Interest," provides ample evidence that Swank knew that each DTV transaction was a loan and that the 22 dollars charged to customers was interest. Cash Cow and EZ Cash knew the DTV transaction was a loan. Each entity was aware that the 22 dollars charged per loan was interest. The Policy and Procedures Manual contains the DTV Checklist which emphasizes that checks are received for "Loan and Interest." Operational Notes state that DTV's "can be re-written continually" at 25 dollars "interest for 15 days." Additionally, Swank, Cash Cow's manager and EZ Cash's President, knew the DTV transaction was a loan. Swank, as Cash Cow's manager and EZ Cash's President knew that Cash Cow and EZ Cash were not registered pursuant to the Act and consequently, Cash Cow and EZ Cash knew they were not registered. Swank knew that the annualized interest rate charged DTV customers was greater than 18 percent. He demonstrated his interest calculation abilities at regulatory proceedings in Georgia where he testified in regard to title pawn loan interest contrasted with DTV costs, reciting calculations and noting a savings with DTVs. Again, Swank's knowledge that the annualized interest rate for DTV customers exceeded 18 percent per annum must be imputed to Cash Cow, which he managed, and EZ Cash, of which he was the President. Swank, and thereby Cash Cow and EZ Cash, intentionally charged, contracted for and received interest of more than 18 percent per annum on DTV transactions. Respondents were subject to joint investigation by the Department, the Office of Statewide Prosecution, and the Department of Florida Highway Safety and Motor Vehicles. As a result of this investigation, a joint investigation of David Arrington and Edward Easterly, and companies owned by them, was begun. The joint investigation of Arrington, Easterly, and their companies has not yet concluded or resulted in charges. Consequently, no administrative proceedings have been initiated against them by the Department. The Department has refused licensure to Southern Cash Man, Inc., as a consequence of Arrington's association with the company. A successor corporation, Check Man, Inc., has been licensed by the Department upon review and determination that Arrington is not now associated with that company. Companies owned by Easterly that have applied for licensure have not been licensed. The applications have been withdrawn. The Department has served an Emergency Final Order to Cease and Desist Unlicensed and Usurious Lending Activities (EFO) and an Administrative Complaint for Entry of a Cease and Desist Order, Order of Imposition of Fines and Notice of Rights (Complaint) against International Title Loan, Inc., John Pierce McDonald, and others (ITC). The Complaint in that case is virtually identical to the Administrative Complaint in the instant case. Specific Transactions Kevin Bundage, a four-year resident of Leon County, Florida, engaged in DTV transactions with Cash Cow and EZ Cash. His intent in going to both businesses was to obtain a loan. He evidenced this intent by asking "How do I go about exchanging or getting a loan for a check?" Bundage did not go to Cash Cow or EZ Cash to obtain a DTV and never entered into a title loan with either entity. Gretchen Seigler, formerly known as Gretchen Boggs, is a 32-year resident of Leon County. She engaged in DTV transactions with Cash Cow. Her intent was to obtain a loan. She did not go to Cash Cow to purchase a discount title voucher. In fact, Seigler entered into the DTV transaction with Cash Cow at a time when she did not even have title to a car. Cheryl Winbourne is a 16-year resident of Leon County, Florida. She engaged in DTV transactions with Cash Cow and EZ Cash. Both with Cash Cow and EZ Cash, her intent was to obtain a loan. She engaged in approximately 20 transactions with Cash Cow. She did not intend to purchase a DTV and never entered into a title loan. Janice Sperry is a five-year resident of Leon County, Florida, and engaged in a DTV transaction with Cash Cow. She intended to obtain a loan. She did not go to Cash Cow to purchase a discount title voucher. She never entered into a title loan with Cash Cow or EZ Cash. Gloria Rowls, a 14-year resident of Leon County, Florida, engaged in DTV transactions with Cash Cow and EZ Cash. She intended to obtain a loan but was required to sign the customer agreement and accept the voucher in order to get the money she needed. She does not own a vehicle and never entered into a title loan with Cash Cow or EZ Cash. The universal intent of the foregoing individuals was to obtain a loan from Cash Cow or EZ Cash. None intended to purchase a discount title voucher. Their receipt of a discount title voucher was not germane to their decision. While there were occasional anomalies where an individual actually used the discount title voucher on a title loan, most people involved in a DTV transaction either threw their discount title vouchers in the trash can, gave them to friends, left them on the counter, or simply accepted the voucher as a requirement to getting the loan. During three months, August 1997 to October 1997, the Cash Cow/EZ Cash store located on Tennessee Street in Tallahassee, Florida, engaged in at least 4,634 DTV transactions. In 1997 alone, the Perry store engaged in at least 1,859 DTV transactions. These two locations therefore engaged in a total of at least 6,493 transactions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Banking and Finance enter a Final Order to Cease and desist Cash Cow, EZ Cash and Swank from violating Chapter 516, Florida Statutes, and from further efforts to collect moneys allegedly due to Cash Cow, EZ Cow or Swank on DTV transactions which have not been repaid by the customer; Fine Cash Cow, EZ Cash and Swank, jointly and severally, the sum of $1,298,600.00. DONE AND ENTERED this 29th day of September, 2000, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS 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 29th day of September, 2000. COPIES FURNISHED: Robert Alan Fox, Esquire Paul C. Stadler, Esquire Assistant General Counsels Department of Banking and Finance Suite 526, The Fletcher Building East Gaines Street Tallahassee, Florida 32399-0350 Richard M. Powers, Esquire 315 South Calhoun Street, Suite 308 Tallahassee, Florida 32301 Honorable Robert F. Milligan Comptroller Office of the Comptroller The Capitol, Plaza Level 09 Tallahassee, Florida 32399-0350 Robert Beitler, Acting General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350
Findings Of Fact Testimony offered by Jay Boosinger, Director of Dairy Industry, for the Department of Agriculture and Gene Smith, Supervisor of Dairy Products Inspection Enforcement, indicated that the Respondent had investigated the request for extension of shelf life from ten days to twelve days on the milk and milk products of the Petitioner and based on the laboratory analysis of the test samples, they felt that the request should be accepted. Jay Boosinger has as his duty the direction of the program which is designed to regulate the quality of dairy products within the State of Florida. Gene Smith is, as his title indicates, charged with the function of inspection and enforcement of the laws and regulations associated with the dairy industry in the State of Florida. Testimony was offered in this hearing which indicated that certain samples of the Petitioner's milk and milk products had been collected at the Petitioner's Tampa, Florida plant and the Petitioner's trucks. These samples were collected by a dairy plant specialist of the Respondent, and then in turn were taken to a laboratory of the Respondent for analysis. The laboratory analysis was designed to ultimately determine the number of days that the samples would be acceptable beyond the code expiration date found on the container, which expiration date would have been at the ten day point. There is an exhibit, which is Respondent's Exhibit #1 that identifies the product, collection point, the established expiration date, the laboratory evaluation date and the days that the product was found to be acceptable beyond the ten day established expiration date. In addition this exhibit contains the laboratory analysis of the products together with attendant correspondence on the issue of the extension of the shelf life. The test samples in Respondent's Exhibit #1 show in the date acceptable pass column, how many days past the ten days the product would have held up without losing flavor and becoming unacceptable in terms of shelf life. The laboratory analyses and summary of those analyses showed available shelf life above the ten day life expressed in the regulation found in Chapter 5D-104 (7)(d), Florida Administrative Code.
Recommendation It is recommended that the Respondent grant a shelf life of twelve days on the milk and milk products identified in the course of the hearing held on the question of the petition. DONE and ENTERED this 25th day of May, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. D. Saunders, Zone Manager Sealtest Foods 109 Governors Street Tampa, Florida 33602 Jack Shoemaker, Esquire Resident Counsel 515 Mayo Building Tallahassee, Florida 32304
Findings Of Fact At all times material hereto, Respondent was an employee of Petitioner, and at the time of her suspension on February 17, 1982, she was employed as a teacher. In December 1977, Respondent filed an application with the State of Florida, Department of Health and Rehabilitative Services pursuant to the food stamp program. On that application, she listed George Fishburne as the applicant and named herself as the applicant's spouse. In the section entitled "Household Composition," she listed George Fishburne as the head of the household, herself as his wife, three persons as their children and Clestine [sic] Edwards as a niece. In the section entitled "Earned Income," Respondent listed as the only source of income a gross salary for George Fishburne of 90 a week working at Dixie Cleaners. She also signed George Fishburne's name to the application on the line entitled "Signature of Head of Household or Spouse. At the time that Respondent completed and submitted the application for food stamps, she and George Fishburne were divorced. Although he on occasion stayed at Respondent's home, George Fishburne lived elsewhere and was, therefore, neither the head of Respondent's household nor a member of her household. At the time that Respondent completed and submitted the application for food stamps, Celestine Edwards stayed at Respondent's house on an irregular basis and, therefore, was not a member of the household. At the time that Respondent completed and submitted the application for food stamps, Respondent failed to report both her employment with Petitioner and her gross monthly income of $646.60. Based upon Respondent's application, the State of Florida, Department of Health and Rehabilitative Services commenced paying benefits to Respondent. No changes to the information contained in that application were ever reported by Respondent. The information provided by Respondent in her application entitled her to benefits in excess of the benefits she would have beer, entitled to had she been truthful. Between December 20, 1977, and September 30, 1980, Respondent received $5,670 in excess of the benefits to which she was entitled. Prior to felony criminal charges being filed against her, Respondent was given an opportunity to make arrangements with the Department of Health and Rehabilitative Services to repay the excess in benefits which she had received. The Department waited for two months, but Respondent failed to make any contact to discuss repayment. Accordingly, the matter was referred to the State Attorney's office, and felony charges were filed. Thereafter, Respondent agreed to make restitution, and she was not brought to trial on the charges of public assistance fraud. Pursuant to the terms of Respondent's agreement made in court, she was referred to the Advocate Program, a program for first offenders. She agreed to repay the sum of $3,500 as restitution and to perform 50 hours of volunteer work. At the time of the final hearing in this cause, Respondent bad completed her 50 hours of volunteer work and had repaid the sum of $525. She was still "being supervised", through that program and would not be released from supervision until the agreed upon amount of restitution had been paid in full or until further order of the court which placed her in that program. All of Respondent's witnesses were character witnesses. They all believe that Respondent is either a good or excellent teacher and is an admirable person because of her extensive involvement in church and community volunteer work over the years. One of those witnesses, however, became aware of the public assistance fraud charges against Respondent and of Respondent's suspension and possible dismissal from employment by Petitioner through reading about it in the newspapers. At the time Respondent applied for benefits under the food stamp program, she knew that neither George Fishburne nor Celestine Edwards were members of her household, and she further knew that she was employed and not unemployed. She intentionally gave false information on her application in order to obtain benefits to which she was not entitled. Her December 1977 initial application reflects that she had previously been a recipient of food stamps, from which fact it can be assumed that she had some familiarity with the operation of the program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of immorality, affirming her suspension effective February 17, 1982, dismissing Respondent from employment with the School Board of Dade County, and denying Respondent's request for back pay. DONE and RECOMMENDED this 19th day of July, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Sampson Oliver, Esquire 2930 Lenwood Avenue, SE Atlanta, Georgia 30317 Phyllis O. Douglas, Esquire Dade County Public Schools Lindsey Hopkins Building, Room 200 1410 NE Second Avenue Miami, Florida 33132
Findings Of Fact Pursuant to an Invitation to Bid issued by the Respondent, Palm Beach County School Board ("School Board") dated February 21, 1990, the School Board solicited bid proposals for the award of contracts to supply the schools under the School Board's jurisdiction with three separate items: milk and milk products, milkshake mix, and juice products. The contracts were to cover the period June 16, 1990 through July 15, 1991. The award of the contracts for two of the three items included in the Invitation for Bid, milkshake mix and juice products, are not at issue in this proceeding. (For purposes of the Recommended Order, references to the "Contract" refer only the proposed award of a contract for Item 1 of the Invitation to Bid.) Petitioner, Land-O-Sun Dairies, Inc. ("Land-O-Sun") and Intervenor, John Hart Distributors, Inc. ("John Hart") submitted bids pursuant to the Invitation to Bid. The bid opening took place on March 21, 1990. The School Board posted the bid tabulations on April 9, 1990. The bid tabulation along with the recommendation to award the contract to the lowest bidder, Land-O-Sun, was scheduled to go before the School Board for final action at its May 2, 1990 meeting. However, prior to presentation to the School Board for award of the contract, the bid tabulation was "pulled". Within seventy-two hours of posting the bid tabulations, the School Board's Department of Purchasing advised the School's Board Department of School Food Services that it had some concerns regarding milk delivery by the Petitioner, who was the apparent low bidder for the contract. As a result, the School Board's Department of Purchasing "pulled" the bid posting in order to review those concerns. By letter dated April 10, 1990, John Hart expressed dissatisfaction with the School Board's decision to award a separate contract for each of the three items contained in the Invitation of Bid. John Hart also expressed a concern that some of the low bidders did not meet the qualifications in Paragraph Q of the Invitation of Bid. The School Board did not consider this April 10, 1990 letter to be a formal protest under Section 120.53, Florida Statutes because it did not contain the specificity required under the statute and also because the bid tabulations was "pulled" within seventy-two hours after posting. After representatives from the School Board's Department of Purchasing met with Land-O-Sun's representatives and resolved the concerns, the School Board decided to re-post the bid tabulation. The bid tabulation was posted for a second time on May 16, 1990. The bid tabulation posted on May 16, 1990 indicated an intent on the part of the Superintendent of Schools to recommend the award of the contract for Item 1 under the Invitation to Bid to Land-O-Sun, the low bidder for that item. Subsequent to the second posting, John Hart submitted an affidavit to the School Board affirming that it had not been convicted of a public entity crime as defined in Section 287.133(1), Florida Statutes. That affidavit was not included with the initial bid package submitted by John Hart. John Hart contacted certain representatives of the School Board and advised them that the other bidders for the contract would not be able to truthfully submit a similar affidavit. The bid form specifically stated that, by signing the bid form, each of the bidders certified that they had not been convicted of a public entity crime. However, none of the bid packages included an affidavit specifically attesting to lack of conviction of a public entity crime. Paragraph Q of the Invitation to Bid ("Paragraph Q") provides as follows: Q. PUBLIC ENTITY CRIMES: Bidder by virtue of bidding and signature on page one (1) of Invitation to Bid: Authorized Signature (Manual), certifies that they have not been convicted of a public entity crime as defined in Section 287.133 of the Florida State Statutes. A public entity crime as defined in Section 287.133 of the Florida State Statutes includes a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any public entity in Florida or with an agency or political subdivision of any other state or with the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or such agency or political subdivision and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy or material misrepresentation. In addition, bidders certify that they have not been suspended and/or debarred from Federal Programs per Executive Order 12549 of February 18, 1986. Thus, pursuant to Paragraph Q, persons or entities "convicted of a public entity crime" as defined in Section 287.133, Florida Statutes or debarred/suspended from federal programs pursuant to Executive Order 12549 of February 18, 1986 were excluded from the bidding process and not eligible to bid. Within seventy-two hours of the posting of the bid tabulation, on May 16, 1990 the posting was "pulled" because of the allegations made by John Hart that the other bidders could not provide an affidavit verifying that they had not been convicted of a public entity crime. After John Hart suggested to School Board officials that the other bidders did not meet the requirements of Paragraph Q, counsel for the School Board contacted the other bidders and requested them to submit affidavits verifying that they had not been convicted of a public entity crime. In response to the request from the School Board's attorney, Land-O-Sun filed an affidavit which was signed by Mary Callahan on behalf of Land-O-Sun on May 16, 1990. The notary certificate for that affidavit is dated May 15, 1990. However, the evidence estabished that the affidavit was actually executed in the presence of the notary on May 16, 1990. That affidavit was executed after consultation with the general counsel for the company, Brian Kelly, who determined that Land-O-Sun should indicate affirmatively in the affidavit that it had been charged and convicted of a public entity crime as defined in Chapter 287 of the Florida Statutes but that it had not been placed on Florida's convicted vendor list. Attached to the affidavit was an explanation of the circumstances surrounding the conviction. Subsequent to the time that the affidavit was submitted to the School Board, Mr. Kelly has reviewed Chapter 287, Florida Statutes and has concluded that, in his opinion, Land-O-Sun has not been convicted of a public entity crime as defined therein since Land-O-Sun was not charged with the crime prior to July 1, 1989. Therefore, Mr. Kelly believes that he erroneously instructed the Land-O-Sun employees to affirmatively indicate on the affidavit that Land-O-Sun had been convicted of a public entity crime. After receipt of the executed affidavits from the various bidders, the bid results were again posted on May 23, 1990 indicating an intent on the part of the School Board's Department of Purchasing to recommend the award of the contract to the low bidder, Land-O-Sun. Subsequent to the May 23 posting of the bid tabulation, John Hart timely submitted a written Notice of Protest on May 25, 1990. That Notice of Protest objected to the award of the contract to Land-O-Sun on the grounds that Land-O-Sun was not a qualified bidder under the terms of the Invitation to Bid. On June 1, 1990, an informal hearing was held between representatives of the School Board and John Hart to discuss the bid protest. (This June 1, 1990 hearing will referred to as the "Informal Hearing.") Land-O-Sun was not notified of the June 1, 1990 Informal Hearing and was not present during that hearing. At the Informal Hearing, John Hart provided the School Board representatives with information regarding a guilty plea entered by Land- O-Sun to a charge of an antitrust violation of price rigging in connection with a contract to provide milk and milk products to the School Board of Pinellas County between August, 1985 and August, 1986. John Hart also provided the School Board representatives with information indicating Land-O-Sun had been placed on a list of vendors prohibited from doing business with the federal government. Based upon the information presented by John Hart at the June 1, 1990 Informal Hearing, the general counsel for the School Board sent a letter dated June 4, 1990 to all bidders advising them that the Superintendent of Schools intended to recommend rejection of the bid submitted by Land-O-Sun for Item 1 and to recommend award of the contract for that item to John Hart. The parties were advised that they could contest this recommendation by filing a written request for an administrative hearing within seven days from the date of receipt of the letter in which case the recommendation would be abated until after a hearing was completed. Land-O-Sun timely requested a hearing within the time frame set forth in the letter. In its May 25, 1990 Notice of Protest, John Hart also challenged the proposed award of the contract on the grounds that the bid instructions were confusing. In the June 4, 1990 notification to the bidders, the general counsel for the School Board rejected John Hart's contention that the bid instructions were confusing. No evidence was presented in this case regarding the contention that the bid instructions were confusing. Land-O-Sun was not provided with an opportunity to respond to or refute the information provided by John Hart at the Informal Hearing until after it received the June 4, 1990 notification of the proposed change in the recommendation and the formal administrative hearing process was initiated. Prior to this formal administrative hearing, Land-O-Sun provided the School Board with information regarding investigations by both state and federal authorities concerning the Pinellas County bid rigging case. After reviewing the information, the School Board was uncertain whether Land-O-Sun was a qualified bidder so it decided to refer the case to the Division of Administrative Hearings to conduct a formal hearing. Land-O-Sun purchased the assets of Pet Dairy in December, 1985. At the time of the purchase, Pet Dairy, through one of its employees, Lee F. Hallberg ("Hallberg"), was involved in a conspiracy with various other dairy companies to rig bid prices in connection with the award of contracts to supply milk, dairy products and fruit juices to the School Board of Pinellas County. The conspiracy commenced sometime prior to May of 1985 and involved contracts with the Pinellas County School Board for the school year beginning August, 1985 through August, 1986. The contracts were awarded in August, 1985, before Land-O-Sun acquired the assets of Pet Dairy. There is no indication that Land-O-Sun was aware of the existence of the conspiracy at the time of the purchase. After Land-O-Sun acquired Pet Dairy in December of 1985, Mr. Hallberg remained with the company for an additional period of time and the company continued to supply products to the Pinellas County School Board pursuant to the contract for the 1985/1986 school year. In 1987 or early 1988, Land-O-Sun was one of a number of dairy companies that was investigated by the Attorney General for the State of Florida in connection with the dairy industry school milk bidding process. A federal investigation also was begun. From the time it first became aware of the investigation, Land- O-Sun cooperated fully with both the state and federal investigators. After extensive negotiations, Land-O-Sun entered into a Settlement Agreement with the Florida Attorney General's Office on February 24, 1988. Pursuant to that Settlement Agreement, Land-O-Sun paid $225,843.36 to the State of Florida antitrust litigation fund. The state agreed not to bring civil or criminal charges against Land-O-Sun. The state also signed a Covenant Not to Sue Land-O-Sun and informed the Pinellas and Sarasota School Boards that Land-O-Sun had settled with the state and had cooperated with the investigation. The federal investigation focused on the same conduct and contract as the state investigation and resulted in criminal antitrust charges being filed against Land-O-Sun pursuant to a Criminal Information dated June 19, 1989 (the "Information"). That Information was filed in connection with a plea arrangement which had been negotiated over several months preceeding the filing of the Information. In accordance with that plea arrangement, Land-O-Sun entered a guilty plea in United States v. Land-O-Sun Dairies Inc., Case No. 89-116-Cr-T13(A) in U.S. District Court for the Middle District of Florida. on July 25, 1989 to the Information charging that a single violation of Section 1 of the Sherman Antitrust Act involving a conspiracy to rig school milk contract bids in Pinellas County for the 1985-1986 school year. In accordance with the plea arrangement, Land-O-Sun was fined $325,000 and the guilty plea settled all civil or criminal charges which could have been brought against Land- O-Sun as a result of the federal investigation. The fines and penalties imposed against Land-O-Sun as a result of the federal and state investigations were minor in comparison with the fines imposed against the various other companies involved in the conspiracy. Hallberg was the only individual employee of Land-O-Sun who was charged with any crime in connection with the price rigging conspiracy. Hallberg was terminated by Land-O-Sun as a result of the information obtained during the state and federal investigation. Following the entry of the guilty plea to the federal criminal charge, Land-O-Sun was debarred from bidding on procurement and sales contracts of the executive branch of the federal government and placed on a list of parties excluded from federal procurement and non-procurement programs. However, there is no evidence that Land-O-Sun was debarred under Executive Order 12549, which is the provision referred to in Paragraph Q. Land-O-Sun's debarment from contracting with the Executive Branch of the Federal Government in no way affected its right to bid on state contracts. Land-O-Sun has not been placed on the State of Florida's Convicted Vendor List. The Convicted VEndor's Lists is provided for in Section 287.133(3)(d), Florida Statutes, which was enacted by the 1989 Florida's Legislature session. It is not clear whether the List has, in fact, been established at this point in time. Land-O-Sun's conviction was not disclosed on the bid proposal submitted by Land-O-Sun in response to the Invitation to Bid. In addition to the Affidavit described in Findings of Fact 18 above, employees of Land-O-Sun have executed affidavits on at least two other occasions indicating that Land-O-Sun has been convicted of a public entity crime. Each of those affidavits were executed after consultation with the company's general counsel, Brian Kelly. Mr. Kelly has subsequently changed his opinion as to whether Land-O-Sun's conviction falls within the definition of a public entity crime under Section 287.133, Florida Statutes. The value of the contract for Item 1 of the Invitation to Bid is approximately $1.27 million. Land-O-Sun's bid proposal for Item 1 was approximately six thousand six hundred dollars less than the bid proposal submitted by John Hart. John Hart held the contract for supplying milk, milk products and milk shake mix to the School Board for the school year June 16, 1989 through June 16, 1990. In fulfilling that contract, John Hart has utilized some dairy products produced by Land-O-Sun. Since the expiration of the contract for the 1989/1990 school year, John Hart has continued to provide milk, milk products and milk shake mix to the School Board. John Hart has never been convicted of any bid rigging or other public entity crime. The School Board is concerned that awarding the contract to Land-O-Sun may somehow jeopardize federal funding for its breakfast program. However, no evidence or legal authority has been presented to establish that any such funding would be jeopardized by the award of the contract to Land-O-Sun.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Palm Beach County School Board enter a Final Order awarding the contract for Item 1 in Invitation to Bid #91C-5R to Land-O-Sun Dairies, Inc. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of August, 1990. J. STEPHEN MENTON 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 22nd day of August, 1990.
Findings Of Fact Petitioner, Green Cay Corporation, acts as a sales agent in selling vegetables primarily for producers in Dade and Broward Counties. Its principal offices are at 700 Northwest Twelfth Terrace, Pompano Beach, Florida. Respondent Sanco Distributors, Inc., acts as a broker for supermarket chains and consequently purchases produce from agents such as Green Cay for further resale to wholesalers and distributors. On the morning of February 7, 1983, Sandy Geraci, president of respondent, telephone petitioner's general manager, Harold Rabin, to inquire about the availability of peppers and other produce. After agreeing on the price and amount, Geraci sent a truck to petitioner's warehouse that same evening which picked up the following produce: 300 boxes of peppers at $28.25 per box, 14 boxes of cucumbers at $13.25 per box, 20 boxes of "Fcy Zucs" at $8.25 per box, 40 boxes of "Med Zucs" at $5.25 per box, and 300 boxes of extra- large peppers at $28.25 per box. The total charge on the invoice was $14,685.50. Before accepting the shipment, Gareci made a cursory inspection of the produce and found it to be acceptable. The shipment was picked up F.O.B. Pompano Beach, which meant Sanco took title to the produce once it was loaded on the truck. Two hundred boxes of peppers were initially delivered to Califf Company in Columbus, Ohio, on February 9 or 10. At around 4:00 a.m. on February 10, Sanco's truck arrived at the loading dock of Walter Gailey and Sons in Cleveland, Ohio, to deliver the remaining 300 boxes of peppers. After the truck was unloaded, it departed the city to make further deliveries. There was no inspection of the peppers by Gailey before they were unloaded or when they were first placed in his warehouse. Sometime later that morning, a United States Department of Agriculture inspector examined a load of peppers on Gailey's dock and noted that "[d]amage by bruising occurring throughout pack ranges from 12 percent to 16 percent, average 14 percent. No decay." However, it was not conclusively shown that the peppers inspected were those delivered by Sanco. The report also noted that "[g]rade defects average 4 percent, consisting of mechanical damage and pulled calix." A pulled calix means the pepper has no stem. The report concluded in part that the boxes met "quality requirements but fail[ed] to grade U.S. No. 1. account of condition." Gailey contacted Geraci by telephone on the morning of February 10 to complain about the peppers. Geraci then telephone Rabin. After being read the results of the inspection report, Rabin asked Geraci to try to make a settlement with Gailey and to offer a $3.00 per box allowance on the peppers. When Gailey was told of this offer by Geraci, he apparently refused. Geraci then offered to move the peppers to Chicago, but Rabin declined this offer since they had already been unloaded and placed in refrigeration. He feared that if they were reloaded and the refrigeration changed again, the perishable items might spoil by the time they reached Chicago. Geraci interpreted Rabin's refusal to move the produce to another destination to mean that he should sell the peppers at the best price available. He thereafter sent Rabin a telegram on February 11, 1983, stating in pertinent part as follows: USDA Inspection ordered at 7 AM February 10, 1983 shows "damage by bruising ranges from 12-16 percent average 14 percent failed to grade US#1" and regards to invoice #009950 dated February 7, 1983 500 large peppers your offer of $3.00 is not acceptable. You have the option to take pepper elsewhere but refused. Peppers will be sold for your account and will forward government inspection account sales plus 25 cents brokerage account will be charged. After receiving the above telegram, Rabin sent a reply telegram to Geraci the same date stating as follows: Reference your Western Union wire of February 11, terms not acceptable. We are turning this matter over to USDA for their consideration. We also intend turning this matter over to the Florida Department of Agriculture reference your bond. On February 11, 1983, the Califf Company in Columbus, Ohio, contacted Geraci concerning the 20 boxes of peppers he had delivered the previous day. Califf claimed its shipment was also bruised and wanted the $3.00 allowance offered to Gailey. Sanco agreed to this discount. After taking the 300 boxes of peppers on a consignment basis, Walter Gailey and Sons eventually sold the peppers for $10.50 per box on the average. Gailey then rebated $3,150 to Sanco, who in turn remitted that amount to Green Cay. The "account sale" given by Gailey to Sanco to evidence the above sale was not in accordance with normal trade procedures. The invoice reflected only the gross amount received for all 300 boxes ($3,150) at an average cost of $10.50 per box. It did not identify the sales price for each individual box, the freight charges, commission, or handling charges, if any. Such itemization is normally shown on the document. Some 2,000 boxes of peppers were sold by petitioner on February 7 and shipped to various buyers. There were no other complaints of bruised peppers received by Green Cay other than those that were delivered to Gailey and Califf.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay $4,425 to petitioner for goods sold by petitioner to respondent on February 7, 1983. DONE AND ENTERED this 28th day of October 1983 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October 1983. COPIES FURNISHED: Mr. Harold Rabin, General Manager Green Cay Corporation 700 Northwest 12th Terrace Pompano Beach, Florida 33060 Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 Glenn A. Bissett, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services Room 418, Mayo Building Tallahassee, Florida 32301 Doyle Conner, Commissioner Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301
