The Issue The issue in this case is whether Respondent Vila and Son Landscaping Corp. owes Petitioner a sum of money for shipments of plants and trees.
Findings Of Fact Because no evidence was presented at the hearing, no finding of fact can be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing this proceeding for the failure of Petitioner to establish the allegations of the complaint. DONE AND ENTERED this 15th day of September, 2011, in Tallahassee, Leon County, Florida. S 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 15th day of September, 2011.
The Issue Whether Grandview Landscaping Services, Inc., is liable to Petitioner for the purchase of landscaping trees; and, if so, in what amount.
Findings Of Fact Petitioner, Southeastern Trees, LLC (Petitioner or Southeastern Trees), is a Florida Limited Liability Corporation located in Gainesville, Florida, engaged in the business of commercial tree farming. Keith Lerner is the President of Southeastern, and David Lerner is the Vice President. Respondent, Grandview Landscaping Services, Inc. (Respondent or Grandview), is a Florida corporation headquartered in Ocala, Florida, engaged in commercial landscaping. Grandview is licensed by the Department as a dealer in nursery products, flowers, and sod. In August 2015, John Sapp, Grandview’s owner, visited Petitioner’s tree farm and selected 27 live oak trees to purchase. On December 11, 2014, Mr. Sapp returned to Southeastern Trees and took possession of the 27 live oak trees. Mr. Sapp used his own equipment to haul the trees. Petitioner sent an invoice to Respondent on December 11, 2014, in the amount of $5,724.00 for the 27 live oak trees. The invoice term was “net 30,” allowing 30 days for Respondent to pay in full. After 30 days had elapsed without payment, David Lerner contacted Mr. Sapp to request payment. Mr. Lerner also requested the location of the trees in order to place a lien thereon. According to Mr. Lerner, Mr. Sapp refused to divulge the location of the trees. After 60 days had elapsed without payment, Keith Lerner contacted Mr. Sapp via telephone. According to Keith Lerner, he spoke with Mr. Sapp on March 1, 2015, who informed him the trees were beautiful and Mr. Sapp would “get him a check.” Keith Lerner attempted to reach Mr. Sapp via telephone again on March 10, 2015, and left messages with Grandview’s office and on Mr. Sapp’s personal mobile phone. Mr. Lerner did not receive a return call. On March 25, 2015, Petitioner sent Respondent, via certified mail, a letter requesting payment of $5,724.00 for the 27 live oak trees and “any interest available to us beyond the 30 days of credit that were extended to you.” The letter was delivered to both Grandview’s business address and Mr. Sapp’s home address. The certified mail receipts were returned to Southeastern Trees, signed and dated March 26, 2015. Petitioner filed a complaint with the Department on March 31, 2015, against Southeastern Trees. Petitioner paid a filing fee of $50.00 As of the date of the hearing, Southeastern Trees had not responded to Petitioner’s request for payment.
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 approving the claim of Southeastern Trees, LLC, against Grandview Landscaping Services, Inc., in the amount of $5,774.00. DONE AND ENTERED this 8th day of October, 2015, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 8th day of October, 2015.
Findings Of Fact Petitioner, Monticello Nursery Company of Florida, Inc., is a corporation whose address is Post Office Box 190, Monticello, Florida. (Petitioner's Complaint) Respondent, Paul Pent, d/b/a Paul Pent Landscape Company, is located at 1660 Emerson Street, Jacksonville, Florida. At the time of the transactions involved, Respondent was licensed as a dealer in agricultural products under License No. 3531. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Corespondent, Transamerica Insurance Company as surety provided bond number 5182-39-34 for Respondent in the amount of $4,750. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Petitioner's complaint for $6,159.30 is based upon two invoices for nursery plants: Invoice 1060 in the amount of $2,612.80, and Invoice 1308 in the amount of $6,109.30. From the total of $8,722.10 is deducted "payments and credit" of $2,562.80. (Petitioner's Complaint) The figures on the complaint and the attached invoices accurately reflect the statement of account for the subject transactions. (Testimony of Sandy Mazza) Invoice No. 1060 is for several kinds of nursery plants and is dated 12/31/84. On the invoice the order date is 10/26/84 and the "ship date" is 12/07/84. Whether the sale occurred upon order, shipment or date of invoice is immaterial, as all three dates are more than nine months prior to the filing of the complaint on September 5, 1985. Invoice No. 1308 is for a quantity of crepe myrtle trees and is dated 1/31/85. The order date and "ship date" are both 1/28/85. One invoice supports, and the other conflicts with, the date of 12/31/84, stated on the face of the complaint as the "date of sale". The invoices are competent evidence as supported by the bookkeeper's testimony. The finding in the November 15, 1985 order of the Department of Agriculture and Consumer Services that the sale totaling $6,159.30 was made on September 5, 1985, conflicts with both the complaint and the invoices and is unsupported by any evidence in the record.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued requiring Respondent Paul Pent, pay Petitioner $3,546.50. The Final Order should specify that failure to comply will result in a requirement that Transamerica Insurance Company pay said sum to the Department of Agriculture and Consumer Services for distribution to Monticello Nursery. DONE and RECOMMENDED this 1st day of May, 1986, in Tallahassee, Florida. MARY CLARK, 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 1st day of May, 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 John C. Cooper, Esquire Douglas, Cooper & Coppins, P.A. 211 East Call Street Tallahassee, Florida 32302-1674 Mr. Paul Pent Pent Landscape Company 1660 Emerson Street Jacksonville, Florida 32207 Transamerica Insurance Company 1150 South Olive Street Los Angeles, California 90015 Joe W. Kight, Chief Division of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Ron Weaver, Esquire Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Room 513 Tallahassee, Florida 32301
The Issue Whether Respondent, Designing Women Landscaping, Inc. (Respondent), a dealer in agricultural products, owes Petitioner, Landscape Nursery, Inc. (Petitioner), a producer of Florida agricultural products, a sum of money for plants purchased from Petitioner's nursery. SUMMARY DISPOSITION On or about February 27, 2009, Petitioner filed an amended complaint with the Florida Department of Agriculture and Consumer Services (the "Department"), alleging that Respondent owes Petitioner the sum of $4,924.40, for plants delivered from Petitioner's nursery to Respondent's place of business. Respondent conceded that it owed some amount to the Petitioner, but prior to the hearing the parties could not agree on the amount owed. The Department forwarded the case to the Division of Administrative Hearings on March 27, 2009. The case was assigned to the undersigned and initially set for hearing on May 8, 2009. One continuance was granted, and the hearing was re-scheduled for May 22, 2009. The hearing was convened as re-scheduled. Prior to the taking of testimony, the parties discussed settlement of the matter. At the conclusion of their discussions, the parties stipulated: that the Division of Administrative Hearings has jurisdiction over this matter and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2009); that, at all times relevant to this proceeding, Petitioner was a "producer" pursuant to Subsection 604.15(9), Florida Statutes (2009); that, at all times relevant to this proceeding, Respondent was a "dealer in agricultural products" pursuant to Subsection 604.15(2), Florida Statutes (2009); that Respondent owes Petitioner $3,033.84 for plants delivered by Petitioner to Respondent; and, that no further interest would be sought or assessed against Respondent on the agreed principal amount owed to Petitioner. Based on the foregoing stipulations, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a final order requiring Respondent, Designing Women Landscaping, Inc., to pay Petitioner, Landscape Nursery, Inc., the principal sum of $3,033.84, without interest. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009. COPIES FURNISHED: Richard D. Tritchler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Susan Hallett Designing Women Landscaping and Nursery 6275 West State Road 46 Sanford, Florida 32771 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Nova Casualty Company 726 Exchange Street, Suite 1020 Buffalo, New York 14210 Gail Hess Landscape Nursery, Inc. 1955 South Apopka Vineland Road Orlando, Florida 32835 Joseph Shay Designing Women Landscaping and Nursery 6275 West State Road 46 Sanford, Florida 32771
The Issue Whether the Respondents should be required, pursuant to Section 604.21, Florida Statutes, to pay the Petitioner $701.88 for agricultural products.
Findings Of Fact Pleasant View Nursery, Inc., is a corporation located in Valrico, Florida. K. S. Enterprises, Inc., d/b/a The Landscape Company and First Coast Wholesale Growers, is a corporation located in Jacksonville, Florida. K. S. Enterprises, at the time of the transaction involved in this proceeding, was licensed in Florida as a dealer in agricultural products. Lawyers Surety Corporation provided Surety Bond Number FLA-390042 (hereinafter referred to as the "Bond"), in the amount of $10,000.00 in support of K. S. Enterprises' license. The conditions and provisions of the Bond assure proper accounting and payment to producers, their agents or representatives for agricultural products purchased by K. S. Enterprises. On December 31, 1990, Pleasant View sold to K. S. Enterprises nursery plants produced by Pleasant View. The nursery plants were provided to, and accepted by, K. S. Enterprises. In consideration for the nursery plants sold to K. S. Enterprises on December 31, 1990, K. S. Enterprises agreed to pay Pleasant View the sum of $6,741.60 within 30 days from date of sale. K. S. Enterprises also agreed to the following terms of payment: We extend credit to few customers because of the tremendous capital required to carry it, because of the extensive cost of borrowing that capital. All accounts 30 days past due will be charged 1 1/2%. . . . A bill for payment for the plants purchased by K. S. Enterprises was sent to K. S. Enterprises the first week of January, 1991. No payment was made by K. S. Enterprises. K. S. Enterprises was billed again during the first week of February, 1991. No payment was made by K. S. Enterprises during the month of February. Interest of $101.12 attributable to the month of January, 1991, and $102.61 attributable to the month of February, 1991, was added to K. S. Enterprises account. Another bill was sent to K. S. Enterprises in March, 1991. On or about March 18, 1991, K. S. Enterprises paid $500.00 to Pleasant View. The payment was credited against the principal outstanding and not against interest in order to reduce the amount of interest that would accrue on the remaining indebtedness. Pleasant View continued to bill K. S. Enterprises each month for the balance due from K. S. Enterprises. Accrued interest was added to K. S. Enterprises' account each month. By August, 1991, the total amount of interest due from K. S. Enterprises was $701.88. The total amount remaining unpaid for the plants sold to K. S. Enterprises was $6,241.60. On or about June 19, 1991, a letter was mailed to K. S. Enterprises notifying K. S. Enterprises of Pleasant View's intent to file a complaint with the Department. K. S. Enterprises received the notice on or about June 25, 1991. On or about June 19, 1991, Pleasant View filed the complaint with the Department. The complaint was filed within six months after the date of the sale to K. S. Enterprises. Subsequent to the Department sending notice to K. S. Enterprises of the complaint, K. S. Enterprises paid Pleasant View $6,241.60. On or about August 13, 1991, Pleasant View received the payment of $6,241.60 from K. S. Enterprises. Pleasant View applied the payment first to the amount of interest that had accrued ($701.88) leaving $5,339.72 ($6,241.60 payment less $701.88 applied to interest) to apply against the remaining indebtedness. Applying the remaining $5,339.72 toward the remaining $6,241.60 owed for the plants left an unpaid balance of $701.88. These actions were taken pursuant to established policy of Pleasant View.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order requiring that K. S. Enterprises, Inc., pay the sum of $701.88 to Pleasant View Nursery, Inc. It is further RECOMMENDED that, should K. S. Enterprises, Inc., fail to comply with the Final Order, that Lawyers Surety Corporation should be called upon to pay the sum of $701.88 to Pleasant View Nursery, Inc., pursuant to Section 604.21, Florida Statutes. DONE and ENTERED this 25th day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Case Number 92-3032A Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1992. APPENDIX Pleasant View has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Respondents did not file a proposed recommended order. Pleasant View's Proposed Findings of Fact Hereby accepted. Accepted in finding of fact 5. Accepted in findings of fact 6-7. Accepted in findings of fact 8-9 and 11-12. Accepted in findings of fact 14-15. Accepted in findings of fact 13 and 17. Hereby accepted. COPIES FURNISHED: Susan Goben, Office Manager Pleasant View Nursery, Inc. 1321 North Valrico Road Valrico, Florida 33594 Kenneth W. Smith, President K. S. Enterprises, Inc. 1914 Beachway Road, Suite 2-J Jacksonville, Florida 32207-2320 Lawyers Surety Corporation Legal Department 1025 South Semoran Suite 1085 Winter Park, Florida 32792 Richard Tritschler, Esquire Department of Agriculture & Consumer Services The Capitol, Pl-10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
Conclusions Having reviewed the Administrative Complaints, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named party pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to Hope Garden Assisted Living Facility. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The Agency issued the attached Notice of Intent to Deny letter and the Election of Rights form to Hope Garden Assisted Living Facility. (Ex. 2) The Election of Rights form advised of the right to an administrative hearing. 4. The parties have since entered into the attached Settlement Agreement. (Ex. 3) Based upon the foregoing, it is ORDERED: 1 Filed May 30, 2013 10:05 AM Division of Administrative Hearings 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $3,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 3. The Notice of Intent to Deny is withdrawn. ORDERED at Tallahassee, Florida, on this 2A day of Atty , 2013. SL i th dh sean Ageréy for He are Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and Or Se of this Final Order was served on the below-named persons by the method designated on this 27 ay of aa , 2013. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 2 Jan Mills Facilities Intake Unit (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Lourdes A. Naranjo, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) "| Calisha A. Francis, Esq. Attorney for Hope Garden Assisted Living Facility Martells and Francis, LLC 4000 Hollywood Blvd. , Suite 555-S Hollywood, Florida 33021 (U.S. Mail) E Gary Early Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
Findings Of Fact Petitioner, Ponsell's Farms, Inc., operates a nursery business in Glen St. Mary (Baker County), Florida. On or about January 16, 1982 Petitioner received a telephone order from Respondent, Reasoner's Tropical Nursery, Inc., for nursery stock consisting mainly of Magnolia trees and tubs at an undisclosed price. The order was subsequently revised by Respondent on January 20 when it added more stock to its order. The total value of the order was placed at $8,800. Respondent operates a nursery business in Oneco (Manatee County) , Florida. There was no written agreement between the parties concerning the sale. However, the parties did orally agree that the trees were needed as soon as possible and that Respondent would provide its own transportation. Respondent also paid a $3,000 cash deposit on the order. After the order was placed, Petitioner immediately dug up the trees and placed them in a holding area pending arrival of Respondent's truck. The trees were wrapped in burlap bags and watered periodically with Petitioner's sprinkling system. Petitioner telephoned Respondent on January 20, 25 and 28 to advise him the trees had been dug and were ready to be picked up immediately. These calls were followed by a written invoice mailed to Respondent on February 10. Additional telephone calls were made during the month of February. On one occasion in January, Respondent advised Petitioner that its truck was disabled and unable to operate; however, Petitioner later learned that the truck was repaired and again operable the day after that advice was given. At some point in February, Petitioner advised Respondent by telephone that the trees were "getting bad" and needed to be picked up immediately. Finally, on March 2, Respondent's truck and driver arrived to pick up the shipment. The driver was given the opportunity to inspect the plants before they were loaded. Only a few plants were rejected. However, Respondent claimed the driver was only that and had no authority to do anything except drive the truck. The driver also borrowed a net to cover the trees while being transported. Its uncontradicted value was placed at approximately $500 and has not yet been returned to Petitioner. Upon receipt of the plants, Respondent immediately wrote Petitioner on March 5 expressing dissatisfaction with the entire shipment. Respondent also invited Petitioner to send a representative to inspect the plants. Further investigations were made by representatives of the Florida Division of Plant Industry and the Manatee County Extension Service. These confirmed that the plants had deteriorated. Petitioner's representative visited Respondent's nursery twice to recover the net and inspect the plants but for some unexplained reason was unable to do either. Respondent presented a registered landscape architect who opined that the damage to the trees was caused by improper sprinkling in the holding area. He also stated that three to four weeks was the most desirable holding time for plants. How ever, the time between which the plants were dug by Petitioner and ultimately picked up by Respondent exceeded this time period. He corroborated the testimony of Respondent that due to the condition of the plants, they will not be saleable for another year, or a total of two years after they were originally delivered. Respondent believes that plants can be dug up and maintained in a holding area for up to a year without incurring shock and damage if properly cared for. Because of this, he felt no urgency to pick up the plants despite repeated calls from Petitioner. He maintains that this is the normally accepted practice in nurseries in Florida, and his failure to pick up the plants was not unusual. Petitioner countered that the trees were properly cared for and only because of Respondent's delay in picking up the shipment did the damage occur. Both sides agree the cost of the plants as originally ordered was $8,800. The value of the net ($500) was not contradicted. Respondent has calculated the value of the shipment in its present state to be only $1,595.70; thus it claims it is entitled to a $1,404.30 reimbursement from the $3,000 deposit. Respondent gave no definitive reason why it ignored the requests of Petitioner and did not pick up the shipment within a reasonable time after placing the order. This delay was a direct cause of the deterioration of the shipment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be paid $5,425 by Respondent within fifteen days after the date of the final order entered in this proceeding. DONE and RECOMMENDED this 11th day of May, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER 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 11th day of May, 1983.
The Issue The issue in this case is whether Petitioner, Loop’s Nursery & Greenhouses, Inc. (“Loop’s”), was entitled to be a dispensing organization under section 381.986, Florida Statutes, and applicable rules when its application was reviewed by Respondent, Department of Health, Office of Compassionate Use (the “Department” or “OCU”), in July through November 2015. Unless specifically stated otherwise herein, all references to Florida Statutes shall be to the 2015 version, as this case involves a backwards-looking, retrospective assessment of the Loop’s application.
Findings Of Fact In 2014, the Florida Legislature enacted the Compassionate Medical Cannabis Act, chapter 2014-157, Laws of Florida, codified in part at section 381.986, Florida Statutes (2014). The Department was directed by the new law to authorize the establishment of one DO in each of five enumerated regions within the State. The Department promulgated an application form, incorporated by reference in Florida Administrative Code Rule 64-4.002, to be used by applicants seeking approval as a dispensing organization. In July 2015, Loop’s filed an application to become the DO in the Northeast Region, consisting of 18 primarily rural counties. The Loop’s application was comparatively reviewed with several other applications. In November 2015, the Department notified Loop’s that its application had received the third-highest score during the comparative review. San Felasco Nurseries, Inc. (“San Felasco”), received the highest score; Chestnut Hill Tree Farm, LLC (“Chestnut Hill”), received the second highest score. However, the Department notified San Felasco that its application was being denied on the basis of an alleged deficiency, leaving Chestnut Hill as the approved DO in the Northeast Region. Loop’s and San Felasco each timely filed a petition for formal administrative hearing to challenge their denials. Chestnut Hill filed an “approved applicant” petition in support of the Department’s decision. The three petitions were consolidated into a single case at DOAH. The Florida Legislature, in the 2016 legislative session, passed House Bill 307 (CS for CS/CS/HB 307) and House Bill 1313, which were signed into law on March 25, 2016, as chapter 2016-123, Laws of Florida (referred to herein as the “2016 Law”). The 2016 Law says, in pertinent part: Section 3. (1) Notwithstanding s. 381.986(5)(b), Florida Statutes, a dispensing organization that receives notice from the Department of Health that it is approved as a region’s dispensing organization, posts a $5 million performance bond in compliance with rule 64-4.002(5)(e), Florida Administrative Code, and expends at least $100,000 to fulfill its legal obligations as a dispensing organization; or any applicant that received the highest aggregate score through the department’s evaluation process, notwithstanding any prior determination by the department that the applicant failed to meet the requirements of s. 381.986, Florida Statutes, must be granted cultivation authorization by the department and is approved to operate as a dispensing organization for the full term of its original approval and all subsequent renewals pursuant to s. 381.986, Florida Statutes. Any applicant that qualifies under this subsection which has not previously been approved as a dispensing organization by the department must be given approval as a dispensing organization by the department within 10 days after the effective date of this act, and within 10 days after receiving such approval must comply with the bond requirement in rule 64-4.002(5)(e), Florida Administrative Code, and must comply with all other applicable requirements of chapter 64-4, Florida Administrative Code. (2) If an organization that does not meet the criteria of subsection (1) receives a final determination from the Division of Administrative Hearings, the Department of Health, or a court of competent jurisdiction that it was entitled to be a dispensing organization under s. 381.986, Florida Statutes, and applicable rules, such organization and an organization that meets the criteria of section (1) shall both be dispensing organizations in the same region. During the operations of any dispensing organization that meets the criteria in this section the Department of Health may enforce rule 64-4.005, Florida Administrative Code, as filed on June 17, 2015. The 2016 Law thus effectively approved the applications of Chestnut Hill and San Felasco by legislative fiat, declaring the Department’s preliminary agency action to be final. Those two entities withdrew their petitions for formal administrative hearing and, upon accomplishing certain preliminary requirements, were to be granted licenses as DOs in the Northeast Region. The petition filed by Loop’s remained as the only challenge to the Department’s decision vis-à-vis the Northeast Region DO applications, resulting in the hearing at issue in this Recommended Order. (Both San Felasco and Chestnut Hill attempted to intervene in this action, but because the result in this case would have absolutely no bearing on the status of their DO licenses, their petitions to intervene were denied for lack of standing.) Loop’s was left to prove that its application should have been approved instead of one or both of the now-approved applicants. It is unclear why the Department takes such an aggressive adversarial stance against Loop’s in this proceeding. Should Loop’s prove that its application should have been approved rather than one of the other applicants, OCU would issue a DO license to Loop’s. If Loop’s fails to meet its burden of proof, OCU would not issue a license. That is the extent of OCU’s status in this matter. Notwithstanding, OCU fervently opposes approval of Loop’s as a DO in the Northeast Region. The Applicant Loop’s was founded in 1949 as a greenhouse and was organized as a corporation under the laws of Florida in 1970. It has operated a certified nursery for well over 30 years and has done so pursuant to a valid Certificate of Registration issued by the Florida Department of Agriculture and Consumer Services (“DACS”) pursuant to section 581.131, Florida Statutes. Loop’s is a Florida greenhouse pioneer, having led the industry in advanced cultivation practices, such as drip irrigation and the use of blackout shade cloths to maximize yield. Today, Loop’s specializes in greenhouse-grown flowering potted plants. It has cultivated more than 400,000 plants annually since the early 1980s. Loop’s is operated by a qualified nurseryman, David Loop. Loop’s currently has 650,000 square feet of state-of-the- art greenhouses. The greenhouses are fully automated, with features including automatic temperature and humidity controls. The primary Loop’s nursery is operated in a 150,000 square foot greenhouse located in Jacksonville, Florida, and there is another 500,000 square feet of specialized greenhouses located in St. Johns County, Florida. Loop’s has plenty of space available in which to cultivate medical marijuana, pending development and approval of a security system for the nursery. Loop’s expressed its intention to use a subsidiary corporation or division (Loop’s Dispensaries, LLC) to operate the dispensing functions of its proposed project, if approved. This plan was in deference to the federal government’s refusal to recognize the legitimacy of medical marijuana and to keep the marijuana cultivation separate and apart from the other Loop’s cultivation processes. OCU’s contention that use of the LLC constitutes a “material misrepresentation” in the application is unfounded. Loop’s was overt and transparent concerning this contingency. Further, no mention was made of this perceived misrepresentation in OCU’s denial letter following review of the Loop’s application. The Application Form The application form for applying to be a DO identifies a number of statutory and rule requirements which must be met, including three basic criteria: a) Possess a valid certificate of registration issued by DACS; b) Show that the nursery is operated by a Florida nurseryman as described in section 581.011; and c) Prove continuous operation as a nursery for at least 30 continuous years. Loop’s generally satisfies each of those criteria. The application form is divided into four parts: Part I requires the applicant to provide basic information about itself. Part II requires the applicant to document its compliance with requirements which are mandated by statute. Part III requires the applicant to provide OCU with information addressing all items listed in rule 64-4.002. There are five substantive subparts in the application: Cultivation (constituting 30 percent of the weighted score), Processing (30 percent), Dispensing (15 percent), Medical Director (5 percent), and Financials (20 percent). These subparts are further broken down into sub-subparts, and weights or percentages are assigned to each of those. Part IV of the application addresses the application submission process, including payment of the application fee. It is clear Loop’s at least minimally meets the requirements set forth in the statute and rule and identified within the application. It has the ability to cultivate, process and dispense medical marijuana (or has set forth a reasonable proposal for doing so in its application). It has a qualified medical director. There is, as set forth below, some concern about the Loop’s financial statements, but Loop’s is generally stable and meets minimal financial requirements. However, Loop’s has the burden in the present case to show that it satisfied the requirements to such an extent that it, rather than Chestnut Hill or San Felasco, should have received the highest point total upon comparative review.1/ Looking at Part I of the application, Loop’s provided the requisite information dictated by the application form, as did--presumably-–the other applicants. There appears to be no dispute that all three applicants sufficiently satisfied Part I. As to Part II, Loop’s provided its DACS certification and submitted successful level 2 background screens for all of its owners and managers. OCU suggested that some individuals who may be involved with the Loop’s operation, if approved, should have undergone level 2 background screening. There is no persuasive evidence, however, that such persons were “owners or managers” as contemplated by statute and rule so as to be subject to the background screening. Loop’s raised a legitimate question as to whether competing applicant Chestnut Hill satisfied the requirement to have “operated for 30 continuous years as a registered nursery,” as required by section 381.986(5)(b)1. Chestnut Hill was formed as a limited liability company in Florida on August 29, 2005. By law, Chestnut Hill became a corporate “person” at that time. See § 607.01401(19), Fla. Stat. Thus, argues Loop’s, Chestnut Hill could not have operated a registered nursery for 30 years because it has not been in existence for 30 years. The Department takes the position that a “nursery” may be certified by DACS and, even if the nursery ownership changes its name or corporate structure, the “nursery” will continue to be certified. “Nursery” is defined in section 581.011(20) as “any grounds or premises” used for growing nursery stock. A DACS letter dated August 4, 2015, addressed to Loop’s states: “According to the Department’s records, your nursery has operated as a registered nursery since May 1, 1963 and has a current inventory of 951,781 plants.” A DACS letter to San Felasco dated July 6, 2015, states: “According to the Department’s records, your nursery has operated as a registered nursery since October 23, 1973 and has a current inventory of 561,200 plants.” DACS issued a letter dated August 3, 2015, to Chestnut Hill which states: “According to the Department’s records, your nursery has operated as a registered nursery since November 23, 1981 and has a current inventory of 406,337 plants.” OCU interpreted the statutory requirement in section 381.986(5)(b)1. to mean that if the applicant operated a registered nursery (rather than itself being a registered nursery), that would satisfy the requirement. OCU reputedly relied upon the DACS certification of the nursery premises to deem Chestnut Hill compliant with the 30 year requirement. Again, no one from Chestnut Hill was called as a witness to explain this conundrum. Comparative Review The five subparts in Part II of the application addressing the statutory criteria were carefully considered by OCU in its comparative review of the applicants. OCU’s process for reviewing the applications is set forth below. Applicants were to submit their applications and a $60,000 filing fee to OCU no later than July 8, 2015. At that point the applications were initially reviewed for completeness by OCU Director Bax. If any items or responses were missing from an application, Bax would send the applicant an omissions letter, giving the applicant an opportunity to supplement its application. In the case of Loop’s, Bax noted that Loop’s had not provided proof of operating a registered nursery for 30 continuous years and the financial statements provided in the application had not been audited. Loop’s timely provided the missing items requested by the Department. Once the applications were deemed complete, three individuals evaluated and scored the applications comparatively. The scorers were: Christian Bax; Patricia Nelson, a member of the Statewide Drug Policy Advisory Council; and Ellyn Hutson, a certified public accountant. Nelson and Hutson were appointed by the State Surgeon General. Instructions for scoring the applications were provided by the Department’s general counsel, Nicole Geary. Pursuant to those instructions, the scorers performed their comparative evaluations independently, not communicating with one another during the review process. They were, however, allowed to make inquiries to certain experts in various areas within the applications outside the scorer’s knowledge or expertise. The scorers each assigned scores on the various sections of the application and compiled the scores in a spreadsheet. The three spreadsheets were then consolidated into a single spreadsheet and the scores were totaled. San Felasco received the highest aggregate score–-3.9750; Chestnut Hill received the second highest score-–3.7917; and Loop’s received the third highest score-–3.5708. Each applicant’s score was an aggregate score totaling all sections of the application. Scoring higher in one section (e.g., cultivation) would not necessarily mean the applicant had the highest aggregate score. The application as a whole had to be scored higher than the others in order to be approved. (See, however, ALJ Van Laningham’s September 8, 2016 “Informational Order on the Multi- Criteria Evaluation, etc.,” entered in Plants of Ruskin, Inc. v. Dep’t. of Health, DOAH Case No. 15-7270, wherein he calls into question the entire process by which OCU “scored” the competing applications, deeming the so-called scores to actually be rankings and thus inconsistent with the statutory mandate.) At final hearing, Loop’s called one of the scorers, Bax, to discuss his evaluation and review of the applications, but did not call the other two scorers. The findings and conclusions reached by the other two scorers were not addressed. Nor were principals from the competing applicants called in order to compare or discuss their applications. Thus, Loop’s attempted to prove that its application was superior by affirming the appropriateness of its own application, superficially presenting portions of the competing applications, and showing that only one of three scorers deemed its application superior. That is not a legitimate or appropriate comparison. As to the technical and technological ability to cultivate, Loop’s provided ample proof that it has that ability. Loop’s will rely in part on assistance from CW Botanicals (i.e., the Stanley brothers), and will utilize some of that entity’s policies and procedures.2/ Although it has no experience cultivating cannabis, Loop’s is very skilled in cultivating other flowering plants. With the help of CW Botanicals, Loop’s undoubtedly would be able to successfully cultivate cannabis. It is the intention of Loop’s to cultivate the specific strain of medical cannabis known as “Charlotte’s Web.” That strain was developed by the Stanley brothers and has proven effective in treating many conditions, especially severe, intractable epilepsy. There are many strains of medical marijuana, however, as evidenced by the fact that the Stanley brothers themselves grow hundreds of different strains. San Felasco proposes to cultivate a strain known as Anovia Medical; Chestnut Hill plans to grow one known as Green Solutions. Other than its notoriety, there was no competent evidence that Charlotte’s Web is superior to any other strain. The Loop’s proposal to cultivate Charlotte’s Web is based entirely on an oral agreement with Ray of Hope, an entity which holds the rights to Charlotte’s Web in Florida. There is no binding written agreement between Loop’s and Ray of Hope. Nothing prohibits Ray of Hope from granting other Florida growers the right to use that strain as well. The suggestion that Loop’s could comply with the cultivation requirement better than the other two applicants is purely speculative. Loop’s pointed out that Chestnut Hill was a tree farm and that San Felasco dealt with outdoor plants. Both are operating registered nurseries within the State, even if they are not currently growing marijuana. However, each of those applicants presumably submitted plans for cultivating medical marijuana in some fashion. No competent evidence was presented to infer that the proposals of Chestnut Hill and/or San Felasco were inferior to Loop’s, or, conversely, that the Loop’s proposal was superior to those applications. Loop’s provided an expert to explain the nature of the Loop’s plan for securing its operations and personnel. The plan was well-developed and seemed to address all of the issues Loop’s would face once it began cultivation. There were, however, some glitches pointed out in the Loop’s plan, e.g., its 24-hour on-site security was to be provided by a single individual who, presumably, would need to sleep sometimes. But again, there is no evidence that the security plans proposed by the other two applicants are in any way inferior. The same is true of the three applicants’ ability to maintain accountability of their raw materials and finished products. Loop’s had a good plan for doing so, but did not specifically demonstrate how its plan was superior to the others. As for a reasonably located infrastructure to dispense the product, Loop’s reasonably showed that it had a broader (geographic) distribution plan than its competitors. However, there is no requirement that a DO dispense its product statewide, only that each DO must cover its designated region, in this case the Northeast Region. Thus, the fact that the other applicants did not propose as wide a distribution of its product as Loop’s is not consequential. In the Loop’s application, 12 distinct dispensing sites are proposed. Eight of those sites have been clearly identified, but zoning and other approvals have not yet been obtained. San Felasco proposes six sites for dispensaries; Chestnut Hill proposes only one, with an option for one more. It is clear Loop’s intends to distribute its product on a wider scale than San Felasco or Chestnut Hill, but there is no requirement for doing so. (The application form does include references to such things as being centrally located to several populated areas and proximity to patient populations, but those are examples of what an applicant might want to show OCU. There is no statutory mandate for those items). The statutory and rule provisions relating to dispensing of the cannabis product does not say that ability to distribute more product is necessarily better. Further, Loop’s did not explain how its product would successfully compete with the DOs approved in the other regions around the State. So, in total, Loop’s did not prove that its distribution plan was superior to the other applicants’ plans. As for transportation of the product to its dispensaries and users, Loop’s plans to use a high-roofed van with a refrigerated cargo space and a lockbox or safe. The van appears to be a very competent means of transporting the product. San Felasco proposes the use of one armored van and several small Prius-model automobiles. Chestnut Hill plans to use two Prius automobiles to transport its product. Each applicant’s proposal seems adequate for their projected distribution of medical marijuana. In the area of financial ability to maintain operations for two years, Loop’s cast some reasonable doubt as to the showing Chestnut Hill made to satisfy this requirement. There was no similar failing noted for San Felasco. Loop’s own financial ability to operate is somewhat suspect due to the conditional nature of its audited financial statements. Loop’s initially submitted a “reviewed” financial statement with its application. A reviewed statement is one prepared internally and then reviewed by a certified public accountant for general correctness. OCU asked Loop’s to submit an audited financial statement instead, and Loop’s complied with that request. The audited financial statement was prepared by Steven Hand, a self-employed CPA whose major business was doing business evaluations. The Loop’s audit was the only one he had prepared since 1998. Mr. Hand was familiar with Loop’s and had some history with the company. He was asked, on extremely short notice, to prepare an audited financial statement for Loop’s. The amount of time he had to prepare the statement was probably insufficient, but he did the best he could in that time. Mr. Hand did not do a written audit plan before commencing the audit although that is a requirement for a bona fide audit. Mr. Hand said that he had a “plan” of sorts based on his conversations with Mr. Loop, but such oral discussions are not sufficient under GAAS to constitute a plan. The audited financial statement he issued did not have the requisite headings required by GAAS, but the financial statement was generally acceptable as to content. Again, failure to include the headings is a violation of GAAS, but the violation seems minimal in this context. Mr. Hand could not issue an unqualified (a/k/a unmodified or clean) opinion regarding the Loop’s financial situation. That is because he was unable to verify the inventory due to his having been engaged to do the work more than a year after the audit period. The verification of accounts receivables was done by Loop’s, not by the CPA, another violation of auditing guidelines. Thus, Mr. Hand issued a “qualified” opinion, i.e., a much weaker opinion that those submitted by the competing applicants. There is no evidence of record as to the validity or appropriateness of the audited financial statement submitted by San Felasco in its application. Thus, no comparison of information contained therein can be made. Some concerns were raised by Loop’s about Chestnut Hill’s finances related to the way that entity valuated its inventory. Further, only the balance sheet on Chestnut Hill’s financials was audited; the auditor issued a disclaimer as to the income statement portion of the financial report. But, ultimately, the auditors were able to issue a valid audited financial statement for the entity. San Felasco was alleged to have a suspect financial ratio which could have an effect on its ability to continue operations for two years, as required by statute. But no discreet comparison between the Loop’s financials and those of the competing applicants was presented at final hearing. Loop’s has retained a qualified physician to act as its medical director and to supervise the DO’s activities. There is no evidence the physician is better than the medical directors proposed by the other parties. The evidence at final hearing was abundantly clear that low THC, high CDB marijuana can have enormously successful results in children with significant medical conditions. The stories of how this drug has helped children overcome debilitating seizure activity were miraculous in nature. It is difficult to conceive how such a beneficial medication could be objected to by some uninformed persons or groups.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Health, Office of Compassionate Use, finding that Petitioner, Loop’s Nursery & Greenhouses, Inc., failed to prove by a preponderance of evidence that its application to become a distributing organization in the Northeast Region should have been approved, and therefore, denying Loop’s application to become a dispensing organization in the Northeast Region. DONE AND ENTERED this 7th day of October, 2016 in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 7th day of October, 2016.
