Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration ("the Agency" ), which finds and concludes as follows: The Agency issued the Petitioner ("the Applicant") the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $4,000.00 within 30 days of the entry of this Final Order. A check made payable to the "Agency for Health Care Administration " containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney's fees. This matter is closed. ORDERED in Tallahassee, Florida, on this_/_ day of r{l> , 2013. tary A e Administration Filed November 4, 2013 11:14 AM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek 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 I HEREBY CERTIFY that a true and correct copysf.:!:,is Final Or as served on the below- named persons/entities by the method designated on this / y of t/ 2013. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Thomas M. Hoeler, Chief Facilities Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Peter A. Lewis, Esquire Law Office of Peter A. Lewis, P. L. 3023 North Shannon Lakes Drive, Suite 101 Tallahassee, Florida 32309 (U.S. Mail) 2
The Issue By these consolidated actions, the Petitioners seek to recover attorney's fees and costs as alleged prevailing small business parties under authority set forth in Section 57.111, Florida Statutes.
Findings Of Fact In accordance with Chapter 380, Florida Statutes, the Department of Community Affairs (Department), at times relevant to this inquiry, has maintained the duty and responsibility to enforce and administer that law. Following entry of the subject Development Order on March 23, 1976, Leon County, Florida, became responsible for administering that Development Order in accordance with Chapter 380, Florida Statutes. The Development Order had been issued upon application by Killearn Properties, Inc., the principal developer. Through property conveyance, the principals within Kinhega Landing and Kinhega Oaks purchased parcels within the geographical boundaries of the development of regional impact (DRI) authorized by Chapter 380, Florida Statutes, and the subject of the Development Order. The property transactions pertaining to the parcels purchased by the Kinhega landing and Kinhega Oaks groups, when recorded in the property records for Leon County, Florida, did not reflect the existence of the Development Order, nor did any history of the chain of title indicate that the parcels were within the DRI. The record does not reflect that the developer, Killearn Properties, Inc., and other persons subsequently involved with the conveyance of the subject parcels purchased by the Kinhega Landing and Kinhega Oaks principals made the Kinhega Landing and Kinhega Oaks groups aware that the parcels being purchased were within the DRI. The Development Order contained a requirement that the DRI be served by a wastewater treatment facility from the inception. The Development Order did not allow the use of septic tanks for individual lots as an interim measure pending the availability of wastewater treatment service through a central plant. Contrary to the requirements set forth in the Development Order, certain restrictive covenants recorded within the public records of Leon County, Florida, pertaining to the parcels purchased by the Kinhega Landing and Kinhega Oaks groups indicated that septic tanks could be utilized. The Kinhega Landing and Kinhega Oaks groups were mindful of the restrictive covenants which allowed the use of septic tanks. This knowledge was gained through an examination of the public records of Leon County, Florida. Moreover, in seeking preliminary plats, the principals for Kinhega Landing and Kinhega Oaks were subsequently issued preliminary plats, pursuant to conditions which allowed the use of septic tanks for individual homeowners and lots pending the availability of wastewater treatment through a central service. Notwithstanding the fact that Leon County was responsible for administering the Development Order and acting consistent with its terms, the Leon County employees who issued the preliminary plats knowingly acted contrary to the terms set forth in the Development Order by allowing septic tanks, instead of requiring the provision of wastewater treatment through central service. Neither did the Leon County employees apprise the Kinhega Landing and Kinhega Oaks groups that the Development Order existed, and thereby allow those groups to make their own determination concerning the consistency of the preliminary plats when measured against the requirements set forth in the Development Order. Chapter 380, Florida Statutes, as it existed when the Development Order was issued did not mandate that the Development Order be recorded in the public records of Leon County, Florida. The amendments which were made to Chapter 380, Florida Statutes, following the date upon which the Development Order was entered did not retroactively mandate the need to record the existence of the Development Order in the public records of Leon County, Florida. That fact taken together with the inability to ascertain the existence of the Development Order through property records related to the specific parcels purchased by the Kinhega Landing and Kinhega Oaks groups, the failure by the initial developer, Killearn Properties, Inc., and others who had been involved with the subject parcels to advise the Kinhega Landing and Kinhega Oaks groups that the parcels being purchased were subject to a Development Order, and the failure by Leon County officials to advise the Kinhega Landing and Kinhega Oaks principals that the parcels were subject to a Development Order, establishes that the Kinhega Landing and Kinhega Oaks groups were without actual or constructive notice of the requirement to provide central wastewater service. To the contrary, Leon County employees provided advice that specifically violated the terms set forth in the Development Order, in a setting in which the Leon County officials were charged with the responsibility to act consistent with the terms set forth in the Development Order. This leads to the conclusion that the Kinhega Landing and Kinhega Oaks groups could not reasonably have ascertained that the Development Order existed as a means of avoiding actions that were inconsistent with the Development Order. This finding also takes into account that the property records reflecting restrictive covenants, as they would inform the public, allowed the use of septic tanks and coincided with the development permission given by the planning officials within Leon County. When investigating and deciding to bring the Notice of Violation, the Department spent considerable time in discussion with the Killearn Properties, Inc., principals. It had no contact with the Kinhega Landing and Kinhega Oaks principals. The Department also met with Leon County concerning the County's administration of the terms of the Development Order. The Department never asked anyone employed by Leon County whether County employees had told the Kinhega Landing and Kinhega Oaks groups that a Development Order had been entered which limited the manner in which development could be pursued, to include the inability to use septic tanks on individual homeowner lots. Neither does it appear that the Department interrogated the principals for Killearn Properties, Inc. concerning whether those individuals had told the principals at Kinhega Landing and Kinhega Oaks that the parcels purchased by the latter groups were under restrictions and were subject to requirements set forth in the Development Order. Nor does it appear that the Department interrogated anyone else concerning advice to these groups about the existence of the Development Order. The Department was aware that the preliminary plats for Kinhega Landing and Kinhega Oaks allowed the use of septic tanks until central sewer service became available and held the opinion that this arrangement violated the requirement to provide wastewater treatment service from a central location from the inception of the DRI. Although the Department has stated that it decided to name Kinhega Landing and Kinhega Oaks in the Notice of Violation to bring before the administrative tribunal all parties necessary for an adjudication of rights and remedies in the overall DRI, in fact, the Department did not name all parties who had property rights subject to the DRI when seeking enforcement through the Notice of Violation. Moreover, it did not occur to the Department that it would be advisable to inquire of the principals within Kinhega Landing and Kinhega Oaks concerning their knowledge of the existence of the Development Order. As stated, the Department had no realization concerning whether the County had advised the principals within Kinhega Landing and Kinhega Oaks regarding the existence of the Development Order when those entities applied for preliminary plats. The Department, when deciding to bring the Notice of Violation against Kinhega Landing and Kinhega Oaks, made note of the conditions associated with the issuance of the preliminary plats wherein it was anticipated that the individual homeowners would need to tie into central sewer service when it was made available. The Department then assumed that it was common knowledge in the development community that the property encompassed within the DRI, to include Kinhega Landing and Kinhega Oaks parcels, was under a Development Order. In addition to looking at the Leon County plat records concerning the Kinhega Landing and Kinhega Oaks parcels, which reflected the permission to use septic tanks subject to availability of central wastewater service, the Department did "some title work" related to the Kinhega Landing and Kinhega Oaks parcels. None of the activities can be seen to educate the Department as to the existence of a Development Order which knowledge could be imputed to Kinhega Landing and Kinhega Oaks principals. The Department was aware that the Development Order had been issued in 1976 at a time when there was no requirement to record the Development Order in the public records of Leon County, Florida. Further, the Department knew that the Development Order had not been recorded in the public records of Leon County, Florida. At the point in time where the decision was being reached to name Kinhega Landing and Kinhega Oaks in the Notice of Violation, the Department assumed, without rational basis, that Leon County affirmatively stated to Kinhega Landing and Kinhega Oaks that the parcels held by those entities were within the DRI. At hearing, concerning the request to be reimbursed for attorney's fees and costs, counsel for the Department who was principally responsible for the case involving the Notice of Violation was uncertain whether the Department of Community Affairs had inquired of Leon County concerning whether Leon County had made Kinhega Landing aware of the existence of the Development Order. Moreover, the Department of Community Affairs assumed that because the Development Order did not allow the use of septic tanks and that the preliminary plats allowed the use of septic tanks on an interim basis, this was seen as evidence that Leon County had brought the existence of the Development Order to the attention of Kinhega Landing and Kinhega Oaks. Such assumption lacked any rational basis. The present Petitioners learned of the existence of the Development Order when served with the Notice of Violation. The Department of Community Affairs became aware that the Kinhega Landing and Kinhega Oaks groups did not know of the Development Order after the Department of Community Affairs had filed the Notice of Violation, and notwithstanding that knowledge continued to pursue the underlying action. When deciding to file the Notice of Violation against Kinhega Landing and Kinhega Oaks, the Department was not aware of any specific legal authority which would support the conclusion that purchasers without notice of the existence of the Development Order would nonetheless be bound by the Development Order and could not defend themselves against acts taken contrary to the Development Order, such as installation of septic tanks in a setting in which the Development Order only allowed wastewater treatment through a central service. Without regard for specific precedent concerning the legal question of whether bona fide purchasers for value, purchasers without knowledge of the Development Order, could defend their actions which were inconsistent with the Development Order, the Department proceeded with its Notice of Violation because it declined to resolve the question of whether those purchasers would nonetheless be held to comply with the Development Order. The Kinhega Landing and Kinhega Oaks principals are prevailing same business parties whose respective expenses in defending the notice of violation exceed $15,000.00. In summary, the Department of Community Affairs was aware that Kinhega Landing and Kinhega Oaks principals were not subject to constructive notice concerning the existence of the Development Order when charging Kinhega Landing and Kinhega Oaks principals with the notice of violation. The Department of Community Affairs failed to establish whether the Kinhega Landing and Kinhega Oaks principals had actual knowledge of the existence of the Development Order prior to bringing the Notice of Violation against those parties and the assumptions which the Department of Community Affairs made concerning actual notice by Kinhega Landing and Kinhega Oaks principals were not reasonable assumptions, especially when relying on Leon County to impart knowledge in a setting in which the Department of Community Affairs had concluded that Leon County had violated the Development Order in its own right, when allowing septic tanks to be used in lieu of wastewater treatment through central service. Misfeasance by Leon County in relation to that topic did not create the proper inference that Kinhega Landing and Kinhega Oaks principals were willing participants in that course of conduct. Kinhega Landing and Kinhega Oaks principals were not aware of the existence of the Development Order prior to being charged with the Notice of Violation.
The Issue The issue in this case concerns whether the Respondent Florida Lime Growers, Inc., is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact On May 29, 1991, Petitioner entered into an agreement with Florida Lime Growers, Inc., for the handling of the sale of his fruit on consignment. The terms of that agreement included the following: Florida Lime Growers, Inc., agreed to grade Petitioner's fruit, pack that which met quality standards, and use its best efforts to sell the packed fruit for the benefit of Petitioner on a pooled basis at market price. No specified price was guaranteed by or agreed to be paid to Petitioner by Florida Lime Growers, Inc. Florida Lime Growers, Inc., was entitled to charge a fee for packing Petitioner's fruit and a commission on the sale of the fruit. Florida Lime Growers, Inc., agreed to pay to Petitioner that portion of the sale proceeds received attributable to Petitioner's share of the pool, less all expenses of sale. Florida Lime Growers, Inc., also agreed to pay Petitioner a portion of the anticipated return prior to actual receipt of payment by Florida Lime Growers, Inc., from the ultimate purchaser. At no time did Petitioner contract with Florida Lime Growers, Inc., for the outright purchase by it of all of Petitioner's mangos and avocados, regardless of quality. The terms of Petitioner's agreement with Florida Lime Growers, Inc., are substantially similar to the agreement he entered into with another packing house, Limeco, Inc., on May 28, 1991. When Petitioner or his employees delivered mangos or avocados to Florida Lime Growers, Inc., the load of fruit would be weighed and a receiving ticket would be given to the Petitioner or to his employee showing the date, type of produce, number of bin boxes brought, and the total weight expressed in pounds and bushels (55 pounds per bushel). Florida Lime Growers, Inc., would then take the fruit and grade it, that is, separate out the fruit of good enough quality to be packed and sold. Petitioner was offered the opportunity to pick up the culls (the fruit not good enough to be packed), so that he might attempt to sell them on his own, but he declined to do so as he felt it was too much of a bother to be worth the effort. Florida Lime Growers, Inc., would then sort Petitioner's fruit by size and pack it for sale. Florida Lime Growers, Inc., kept a record of the quantity of Matthews' fruit, by type and size, as well as the proportion of the pool of fruit available for sale which Petitioner's fruit represented. Florida Lime Growers, Inc., sold Petitioner's mangos and avocados at market price. Market prices fluctuate, which is why Florida Lime Growers, Inc., as well as Petitioner's other dealer, Limeco, did not guarantee a rate of return or agree to pay a specified price. Petitioner's rates of return per bushel for sales of his packed mangos and avocados by Florida Lime Growers, Inc., can be determined by dividing the net return by the total weight packed (in pounds) to get a per pound return, then multiplying the result by 55 to arrive at the per bushel return. Applying this formula to the information contained in the account sales reports contained in Respondent's Composite Exhibit 8, the rates of return to Petitioner were as follows: Type of Fruit To be Packed Receipt # Total Weight Packed Total Net Return Per Bushel Return Mango 610 8,280 2,584.58 17.05 Mango 617 4,600 1,435.88 17.05 Mango 623 8,987 3,303.23 20.35 Mango 630 3,102 1,073.95 19.25 Mango 635 2,629 935.79 19.80 Mango 641 3,597 1,311.14 19.80 Mango 651 3,680 1,201.16 15.40 Mango 654 6,083 1,138.35 10.45 Mango 676 1,540 340.14 12.10 Avocado 689 3,800 2,783.91 40.15 Mango 692 220 50.44 12.65 Avocado 696 925 692.56 41.25 Mango 727 15,455 1,666.98 6.05 Mango 740 13,728 2,002.61 8.25 Mango 747 10,021 1,399.91 7.70 Mango 753 7,953 1,159.16 8.25 Petitioner presented no evidence to show that the prices obtained for his fruit by Florida Lime Growers, Inc., were below the market. The only evidence of price other than Respondents' sales was the net return paid to Petitioner by Limeco for mangos delivered by him to that dealer on May 28 and 29, 1991, and after July 1, 1991. That evidence shows that there was a substantial decrease in sales price between May 28, 1991, and July 1, 1991. For instance, Exhibit 2 reflects a net return for mangos delivered at the end of May of $17.85 per bushel. Exhibit 5 reflects a net return for mangos delivered on July 3, 1991, of $9.78 per bushel, with $6.20 per bushel for "No. 2's." Exhibit 4 reflects a net return for mangos delivered between July 5 and July 11 of $6.08 per bushel, with $4.59 per bushel for "No. 2's." The last sale of mangos by Florida Lime Growers, Inc., which included those of the Petitioner, was to Amerifresh, a broker. Amerifresh selected and arranged for the trucking company to transport the shipment to Seattle, Washington. Upon arrival, the shipment of mangos was rejected as a "failed" shipment. The shipment was inspected by a U.S.D.A. inspector and a copy of the U.S.D.A. inspection certificate was obtained by Florida Lime Growers, Inc., maintained in its records, and offered to Petitioner. Florida Lime Growers, Inc., received payment for only the small portion of the shipment which was salvageable. The funds received representing that portion of the shipment comprised of Petitioner's mangos, less his proportionate share of the expenses of sale, were paid to Petitioner. Petitioner presented no evidence to show that Florida Lime Growers, Inc., received any money for his mangos and avocados that it did not pay to him, after deducting the costs of sale and the advances or prepayments made in accordance with their agreement. Petitioner was provided with an accounting with the final check issued for payment from each pool. With respect to the final payment on September 10, 1991, in the amount of $233.07, Matthews received an accounting, including a letter of explanation, and the opportunity to review the records of Florida Lime Growers, Inc. Petitioner spoke with both William Planes and Rachel Trant of Florida Lime Growers, Inc., at unspecified times, but he was not satisfied with the information that either of them provided. The computerized accounting system used by Florida Lime Growers, Inc., is also used by several other businesses in the produce industry. Florida Lime Growers, Inc., employees have offered to explain the printed reports to its customers and have done so on request. 2/ Although he had the opportunity to do, Petitioner never requested assistance or an explanation from the employee of Florida Lime Growers, Inc., who ran the computerized accounting system and who calculated the adjustments and final return to be made on the Amerifresh shipment. Petitioner made no attempt to communicate with anyone from Florida Lime Growers, Inc., after he received his final payment on September 10, 1991. July 1, 1991, was the last date on which Petitioner brought mangos to Florida Lime Growers, Inc., which were accepted by the latter. The last load of Petitioner's mangos brought to Florida Lime Growers, Inc., was refused due to the poor quality. Petitioner's first effort at filing a complaint was on November 18, 1991, when he filed a complaint against "Bill Planes d/b/a Florida Lime Growers, Inc." William "Bill" Planes is the president of, and is one of two directors of, Florida Lime Growers, Inc. Mr. Planes is the person with whom the Petitioner had most of his dealings involving Florida Lime Growers, Inc. Mr. Planes, in his individual capacity, was not a dealer pursuant to Chapter 604, Florida Statutes. Petitioner was notified by the Department of Agriculture and Consumer Services by letter dated January 7, 1992, that his complaint could not be processed until he amended it to name Florida Lime Growers, Inc., as the Respondent. The actual date Petitioner filed the amendment to his complaint is unclear from the documents, but it was not until some time after March 2, 1991, the date on which it was notarized. The first notice of Petitioner's complaint that the Department of Agriculture and Consumer Services sent to Respondent, Florida Lime Growers, Inc., was on March 11, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order in this case dismissing the Petitioner's complaint, as amended, and denying the relief requested by the Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of September 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September 1992.
The Issue The issue is whether Respondent, Greenblades of Central Florida, Inc., and its surety, Western Surety Company, are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a licensed dealer in agricultural products supported by a surety bond provided by Western Surety Company. This matter arose over a Producer Complaint filed by Petitioner on June 24, 2005, in which it alleged that Respondent owed $20,512.97, based upon five invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. The five invoices set forth in the original Producer Complaint are as follows: Date of Sale Invoice # Amount Dec. 28, 2004 64679 $2,884.72 Jan. 11, 2005 64828 3,878.75 Jan. 11, 2005 64829 1,926.00 Feb. 1, 2005 65229 2,086.50 Feb. 3, 2005 65127 9,737.00 Petitioner later amended its Complaint to withdraw its claims under Invoice Nos. 65229 and 65127, as untimely filed, resulting in an amended amount due of $8,689.47. Respondent filed a Response to the Producer Complaint on August 15, 2005, admitting the amounts due under Invoice Nos. 64679 and 64828, totaling $6,763.47, and denying the amount claimed in Invoice No. 64829, $1,926.00, as never having been filled, resulting in Respondent's using another vendor to fill the order. Respondent admitted the amounts due under Invoice Nos. 64679 and 64828; therefore, no further discussion is necessary for those items, except to note that Delivery Receipt No. 17751, relating to Invoice No. 64828 contains the note "Reject 1 Live Oak." Therefore, the amount of Invoice No. 64828 must be reduced by $214.00 ($200 for the tree and 7 percent Florida Sales Tax). With respect to Invoice No. 64829, however, Petitioner produced at hearing only an unsigned invoice without either a sales order or a receipt for delivery of goods, as was its custom concerning deliveries of nursery goods. Accordingly, Petitioner provided no proof that the order under Invoice No. 64829 was actually delivered to Respondent. Respondent and its surety, Western Surety Company, currently owe Petitioner $2,884.72 under Invoice No. 64679, and $3,664.75 under Invoice No. 64828, for a total amount owed of $6,549.47.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, Greenblades of Central Florida, Inc., or its surety, Respondent, Western Surety Company, to pay Petitioner $6,549.47 for unpaid invoices. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of January, 2006. COPIES FURNISHED: Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Joseph Robbins, Jr. Greenblades of Central Florida, Inc. 11025 Southeast Highway 42 Summerfield, Florida 34491 Tom Snyder Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Tom Robinson Skinner Nurseries, Inc. 13000 State Road 11 Bunnell, Florida 32110 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
The Issue Whether the Respondent Terra Bella and Associates, Inc., owes the Petitioner $17,806.20 for sod purchased from Petitioner, Action Sod and Landscape, LLC.
Findings Of Fact Action Sod is a 25-year-old business that sells plants and sod for lawn and landscaping. Terra Bella is a construction landscape maintenance company that has been in existence since 2004. 2011. Great American was the surety for Terra Bella during In the latter part of 2011, Action Sod sold and invoiced Terra Bella the following sod orders: Invoice 114825 on November 16, 2011, for Vero Beach in the amount of $1,979.50; Invoice 114828 for Parkland Heron Bay on November 16, 2011, in the amount of $1,979.50; Invoice 114875 for Parkland on November 16, 2011, in the amount of $2,268.40; Invoice 115360 for Pickup at Okechobbe Farm on November 21, 2011, in the amount of 1,455.20; Invoice 116151 for Harron Beach on November 29, 2011, in the amount of 3,852.00; Invoice 116350 for Enin 5613480172 on December 1, 2011, in the amount of $3,852.00; and Invoice 116880 for Pickup at Okechobbe Farm on December 6, 2011, in the amount of $1,369.60. Action Sod expected payment of each invoice within 30 days from date of pick up or delivery. After Barbara Callado Lopez ("Lopez"), Action Sod's President and Director, did not receive payment for the outstanding November and December invoices totaling $26,396.90, she called Terra Bella repeatedly to request payment. On January 24, 2012, Terra Bella paid Action Sod $9,640.00 for Invoices 113134, 113750, 114132, and 114626, leaving an outstanding balance of $16,756.20. On February 22, 2012, Action Sod filed a claim against Terra Bella with the Department because $16,756.20 had not been paid. Action Sod ultimately amended the claim to $16,806.20 to include the remaining monies owed for sod purchased plus the $50.00 filing fee for a claim. On February 29, 2012, Lopez went to Terra Bella's office requesting payment. The parties had a heated argument about the sod and monies owed. Lopez requested payment in the amount of $16,756.20. Terra Bella provided a counter offer to Action Sod of $13,006.20, which was calculated by subtracting $750.00 for pallets returned and $3,000.00 for the sod that didn't pass inspection and had to be replaced. Even though Lopez was dissatisfied with the offered amount of $13,006.20, she accepted it. Terra Bella paid Action Sod $13,006.20 with check #5098, which stated in the memo section, "Final Payment of Agreed Upon Open Bal." During the meeting, Lopez also signed six Final Waiver and Release of Lien forms for the following properties: Vero Lago, LLC,; The Ranches at Cooper City, LLC; Parkland Reserve, LLC; Miami Dade Aviation Department; Heron Bay; and Monterra Clubhouse. The waivers neither provided invoice numbers nor identified and described the property locations as listed on the invoices. Each waiver provided in relevant part the following: The undersigned lienor, received FINAL payment and hereby waives and releases its lien and right to claim a lien for labor, services, equipment, or materials furnished to Terra Bella & Associated, Inc., though February 29, 2012, on the . . . project. . . to the following property. . . Action Sod cashed check #5098 and therefore Terra Bella is not indebted to Petitioner for any sod sold in November and December of 2011.
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 dismissing the complaint of Action Sod and Landscape against Terra Bella and Associates. DONE AND ENTERED this 5th day of September, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 5th day of September, 2012. COPIES FURNISHED: Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Lorena Holley, General Counsel Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Barbara Callado, President Action Sod and Landscape, LLC Post Office Box 833143 Miami, Florida 33283-3143 Dan Hurrelbrink Great American Insurance Company 580 Walnut Street Post Office Box 2119 Cincinnati, Ohio 45201-3180 Dennis Hall, President Terra Bella and Associates, Inc. PO Box 22397 Hialeah, Florida 33002
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as a personal view of the subject premises by the undersigned, the following relevant facts are found: By an application submitted to the Department of Environmental Regulation in January of 1976, Florida Power Corporation seeks a permit to construct and maintain three electrical power poles, two on Banana Island and one on Parker Island in the King's Bay area of Crystal River. Two spans of wire are to exist between the three poles. The minimum clearance of the bottom wire of the lines spanning between Parker and Banana Islands will be forty-four (44) feet. The wires crossing Banana Island will be some 29 feet in height. The wires will be stretched in a vertical fashion with three wires spaced one above the other, and will carry 12,470 volts of power. Because a mean high water survey was not performed, it is not known whether the three poles will be located on privately or sovereignty-owned land. Inasmuch as Florida Power Corporation has applied for the applicable permits from both the Department of Environmental Regulation and the Department of Natural Resources (See Case No. 77-960), a finding on this issue is not necessary. Darrell F. Howton, a field inspector with the Department of Environmental Regulation, conducted two on-site visits and an appraisal of the permit application. He recommended approval of the project. Finding that the "short-term or immediate impact of the project will deal almost strictly with the transportation of equipment to and from the site," the only recommendation he made was that, in order to minimize the crushing of vegetation, a direct route to the sites be taken with little moving around in the area with vehicles or equipment. Mr. Howton considered potential impediments to navigation resulting from the overhead wires, but found none due to their proposed heights. The dredge and fill section of the Department of Environmental Regulation gave notice of its intent to issue the permit applied for by the Florida Power Corporation. Thereafter, the petitioners herein filed a request for a hearing on the permit application, the Department of Environmental Regulation transferred the petitions to the Division of Administrative Hearings for hearing, Central Development Company as the owners of Parker and Banana Islands intervened as a party-respondent, and the undersigned Hearing Officer was duly designated to conduct the hearing. This matter was consolidated for hearing purposes with Case Nos. 76-1102, 77-849, 77-850 and 77-960, for which separate recommended orders are being entered. The majority of testimony presented by the petitioners related to the issue of whether or not the proposed power lines would create a hazard or a serious impediment to navigation in the area between Parker and Banana Islands. As noted above, the minimum clearance of the wires extending between these islands is 44 feet. The depth of this area at high tide is between four and five feet. The greater weight of the evidence was to the effect that sailboats with masts higher than 35 to 40 feet were too large to use this particular channel because their draft would be too great for the depth of the channel. Deeper navigable waters exist on the west side of Banana Island, and it would not be prudent for a large sailboat owner to risk the expenses and dangers of becoming grounded in the more shallow waters. It was the testimony of the distribution engineering supervisor for Florida Power Corporation that if the power lines created any problems after their installation with respect to sailboat masts, Florida Power would correct the situation by raising the lines to accommodate local traffic. Seaplanes (five or six per year) occasionally utilize the air space between Banana and Parker Islands, depending upon the prevailing wind direction. There would be no harmful or adverse effect upon the manatee by the existence of the power poles or lines. Several waterfront property owners testified that they felt their view of the waters would be obstructed by the existence of the proposed power lines.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Department of Environmental Regulation issue to the Florida Power Corporation a permit authorizing and allowing the installation and maintenance of the power poles and lines contained in its application. This permit should not be issued unless and until the applicant receives and exhibits the necessary form of consent from the Trustees of the Internal Improvement Trust Fund, pursuant to Florida Statutes Section 253.77 (1976). Respectfully submitted and entered this 16th day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION CRYSTAL RIVER PROTECTION ASSOCIATION, INC., et al., Petitioner, vs. CASE NO. 76-1103 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, FLORIDA POWER CORPORATION and CENTRAL DEVELOPMENT COMPANY, Respondent. /
