The Issue Whether Petitioner is entitled to an exemption from the requirements of Section 559.927, Florida Statutes, under subsection (12)(h) of the statute.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Global Touring, Inc., is in the wholesale travel business. It sells Australia and New Zealand travel packages to travel agencies. Jennifer Pickens is Global Touring, Inc.'s sole shareholder and its President. Pickens has been in the travel business in Broward County, Florida, since 1983, when she started her own travel agency, Global Travel Service, which she operated as a sole proprietorship. At the time, the Air Traffic Conference (hereinafter referred to as the "ATC") had an airline ticket purchase and payment program for participating travel agents. In September of 1983, Pickens contracted with the ATC to participate in its program. She was given an ATC Agency Code Number (618310) and placed on the official ATC Agency List. Approximately a year later, Pickens began a wholesale travel operation, Global Touring Service, which sold tours to Australia and New Zealand. Global Touring Service and Global Travel Service operated out of the same office. Pickens used her ATC Agency Code Number to write airline tickets for both operations. Effective the close of business on December 30, 1984, the ATC terminated its airline ticket purchase and payment program for travel agents. The ATC program, however, was replaced by a similar program operated by the Airlines Reporting Corporation (hereinafter referred to as the "ARC"). Travel agents on the official ATC Agency List were given an opportunity, at their option, to be placed on the official ARC Agency List "in substantially the same status as that agent st[ood] on the ATC list on December 30[, 1984,]" by entering into an agreement with the ARC to participate in its replacement program. Pickens opted to participate in the program. She was assigned an ARC Agency Code Number and placed on the official ARC Agency List. On November 20, 1985, Pickens incorporated her business enterprises. She created one corporate entity, Jennifer R. Pickens Travel, Inc., with two operating divisions: Global Travel Service and Global Touring Service. The newly formed corporation continued to operate under the contract Pickens had entered into with the ARC. In 1986, Jennifer R. Pickens Travel, Inc., purchased another travel agency, Lighthouse Travel Services. Jennifer R. Pickens Travel, Inc., assumed Lighthouse Travel Services' contract with the ARC and Lighthouse Travel Services' ARC Agency Code Number and it cancelled the ARC agreement under which it had been conducting business prior to its purchase of Lighthouse Travel Services. Lighthouse Travel Services and Global Travel Service were combined into one retail travel operating division bearing the name of the former. In December of 1991, Jennifer R. Pickens Travel, Inc., changed its name to Global Touring, Inc., and eliminated its retail travel operating division. Since that time, it has engaged only in the wholesale travel business. On or about March 1, 1992, Global Touring, Inc., sold the assets of its former retail travel operating division, including its ARC contract and ARC Agency Code Number, to YAM, Inc. Following the sale, Global Touring, Inc., sought to enter into another contract with the ARC and obtain a new ARC Agency Code Number. Because the paperwork Global Touring, Inc., initially submitted to the ARC was lost, it was not until on or about December 9, 1992, that Global Touring, Inc., entered into such a contract and received a new ARC Agency Code Number (10-53349-3). The contract is still in effect. Since its inception, with the exception of the period from on or about March 1, 1992, to on or about December 9, 1992, Global Touring, Inc., has continuously operated under a contract with the ARC. While it has undergone a name change, it has remained under the ownership and control of the same person, Jennifer Pickens, during the entire time that it has had a contractual relationship with the ARC. Earlier this year, Global Touring, Inc. submitted to the Department an application for a statement certifying that, based upon the total number of years it has contracted with the ARC, it is exempt from the requirements of Section 559.927, Florida Statutes. Pickens, who prepared the application, failed to sign it. In the application, she asserted that Global Touring, Inc., had been "a member of ARC since: 09/14/83," holding "ARC Number 618310." The Department preliminarily determined to deny the application. In its letter to Pickens advising her of its preliminary determination (hereinafter referred to as the "Notice of Proposed Denial"), the Department gave the following reasons for its proposed action: Application for exemption unsigned, with wrong data; 2) ARC approval 10-53349-3, made 12/9/92 is less than 3 years. Such proposed action is consistent with the Department's practice of granting exemptions under subsection (12)(h) of Section 559.927, Florida Statutes, only to those sellers of travel who are able to show that they have an agreement with the ARC which has been in effect for at least the immediately preceding three years. Pickens responded to the Department's advisement with a letter of her own, the body of which read as follows: We wish to apply for a Formal Procedure Hearing. We applied for an exemption on July 22, 1994 and it seems that the reviewer completely ignored all the enclosures. We have been in the travel business since 1983. We took over Lighthouse Travel in 1985 and had the ARC number 618310 for seven years until selling Lighthouse Travel in 1992 and allowing the ARC number to remain with that part of the business. In 1992, after having our application lost, we again became members of ARC, and all of the above under the same company, Jennifer R. Pickens Travel Inc. which changed its name in 1991 to Global Tour- ing, Inc. In the interim we have become one of the 10 largest American Wholesalers to Australia and New Zealand. Our company can obviously prove an ARC relationship for 3 years (actually 11 years) and a history of selling travel for the same period. We therefore request an exemption as per our submis- sion and inasmuch as a formal hearing seems to be the procedure, we hereby request such a hearing. The letter was dated August 25, 1994, and signed by Pickens in her capacity as the President of Global Touring, Inc. After receiving Pickens' letter, the Department referred the instant matter to the Division of Administrative hearings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order granting Petitioner's application for a letter of exemption pursuant to Section 559.927, Florida Statues. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1994. STUART M. LERNER 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 27th day of December, 1994.
The Issue Has Respondent Fancy Farms Sales, Inc. (Fancy Farms) made proper accounting to Petitioner Lonnie Pearce in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Fancy Farms from October 28, 1994, through December 10, 1994, by Lonnie Pearce to be handled by Fancy Farms as agent for Lonnie Pearce on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Lonnie Pearce was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Fancy Farms was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8453 issued by the Department, supported by bond number 57 92 20 in the amount of $75,000, written by Gulf Insurance Company with an inception date of September 1, 1994, and an expiration date of August 31, 1995. Beginning October 28, 1994, and continuing through December 10, 1994, Lonnie Pearce delivered certain quantities of an agricultural product (zucchini) to Fancy Farms. It is the accounting for these zucchini (zukes) that is in dispute. It was stipulated by the parties that Fancy Farms was acting as agent in the sale of the zukes delivered to Fancy Farms for the account of Lonnie Pearce on a net return basis. There is no dispute as the quantity or size of the zukes delivered by Lonnie Pearce to Fancy Farms during the above period of time. Furthermore, there is no dispute as to the charges made by Fancy Farms for handling the zukes, including but not limited to the commission charged by Fancy Farms. The agreed upon commission was ten per cent (10 percent) of the price received by Fancy Farms from its customers. There is no evidence that Fancy Farms found any problem with the quality of the zukes delivered to Fancy Farms by Lonnie Pearce during the above period of time. Upon delivering the zukes to Fancy Farms, Pearce was given a prenumbered receiving ticket showing Lonnie Pearce as Grower number 6 and containing the following additional information: (a) date and time of delivery; (b) produce number, i.e., 37 indicating fancy zukes and 38 indicating medium zukes; (c) description of the produce, i.e., zukes, fancy; (d) a lot number containing number of delivery ticket, grower number and produce number, i.e. 2074-6-37 and; (e) the number of units of zukes received by Fancy Farm. The accounting for the zukes from the following delivery receipt ticket numbers is being contested in this proceeding: (a) 2074 dated October 28, 1994, lot nos. 2074-6-37 and 2074-6-38; (b) 2078 dated October 31, 1994, lot nos. 2078-6-37 and 2078-6-38; (c) 2086 dated November 3, 1994, lot nos. 2086-6-37 and 2086-6-38; (d) 2103 dated November 4, 1994, lot nos. 2103-6-37 and 2103-6-38; (e) 2128 dated November 8, 1994, lot nos. 2128-6-37 and 2128-6-38; (f) 2144 dated November 10, 1994, lot nos. 2144-6-37 and 2144-6-38; (g) 2162 dated November 12, 1994, lot nos. 2162-6-37 and 2162-6-38; (h) 2180 dated November 15, 1994, lot nos. 2180-6-37 and 2180-6-38; (i) 2241 dated November 29, 1994, lot nos. 2241-6-37 and 2241-6-38; (j) 2253 dated December 1, 1994, lot nos. 2253-6- 37 and 2253-6-38; (k) 2266 dated December 3, 1994, lot nos. 2266-6-37 and 2266- 6-38; (l) 2290 dated December 7, 1994, lot nos. 2290-6-37 and 2290-6-38 and; (m) 2314 dated December 10, 1994, lot nos. 2314-6-37 and 2314-6-38. Once Fancy Farms found a customer for the zukes, Fancy Farms prepared a prenumbered billing invoice. Additionally, a bill of lading and load sheet was prepared and attached to the invoice. The bill of lading and load sheet would have the same number as the invoice. Basically, the invoice and bill of lading contained the customer's name and address, produce number, description of produce, number of units ordered, number of units shipped and the price per unit. The load sheet contains the customer's name, produce number, description of produce, units ordered, units shipped and the lot number for the units that made up the shipment. On numerous occasions Fancy Farms made adjustments to the selling price after the price had been quoted and accepted but before the invoice was prepared. Fancy Farms did not make any written notations in its records showing the adjustments to the price or the reasons for the adjustments to the price. Salvatore Toscano testified, and I find his testimony to be credible, that this usually occurred when there was a decrease in the market price after Fancy Farms made the original quote. Therefore, in order to keep the customer, Fancy Farms made an adjustment to the price. Pearce was never made aware of these price adjustments. In accounting for the zukes delivered by Pearce, Fancy Farms prepared a Grower's Statement which included the delivery receipt number, the date of delivery, the lot number, grower number, produce number, description of the produce, quantity (number of units), price per unit and total due. Payment for the zukes was made to Lonnie Pearce from these statements by Fancy Farms. On occasions payment was for only one delivery receipt while at other times payment was for several delivery receipts for different dates. Petitioner's exhibit 2 is the Florida Vegetable Report (Market Report), Volume XIV, Nos. 12, 13, 16, 17, 19, 21, 22, 23, 31, 33, 35, 37 and 40, dated October 28, 31, 1994, November 3, 4,8, 10, 14, 15, 29, 1994, and December 1, 5, 7, 12, 1994, respectively. The Market Report is a federal-state publication which reports the demand (moderate), market (steady), volume sold and prices paid for numerous vegetables, including zucchini, on a daily basis. The prices quoted for zucchini is for 1/2 and 5/9th bushel cartons and includes palletizing. The average cost for palletizing in the industry is 65 per carton. Fancy Farms receives and sells zukes in one-half (1/2) bushel cartons. Fancy Farms does not palletize the cartons for handling at its warehouse or for shipment. From October 28, 1994, through November 8, 1994, Pearce delivered a combined total of 431 units of fancy and medium zukes which included all lot numbers listed on delivery receipt ticket numbers 2074, 2078, 2086, 2103 and 2128. Pearce was paid $1,715.70 by Fancy Farms for those zukes as evidenced by Pearce's Grower Statement dated November 17, 1994 (Petitioner's exhibit 1). Fancy Farms sold this combined total of 431 units of zukes for $1,901.36 as evidenced by invoice nos. 3755, 3777, 3806 and 3814. The commission earned on these sales is $190.14 (0.10 x 1901.36 = 190.14). The amount owed by Pearce after deducting the amount paid by Fancy Farms ($1,715.70) and the commission ($190.14) is: $1,901.36 - $1,715.70 - $190.14 = -$4.48. The Market Report shows a much higher price being paid on the market for both fancy zukes (mostly $10.00 on 10/28/94 and mostly $8.00 on 10/31/94) and medium zukes (mostly $8.00 on 10/28/94) and mostly $6.00 on 10/31/94) than was allowed Pearce for zukes delivered on the same dates to Fancy Farms. However, the zukes delivered on October 28 & 31, 1994, were not sold by Fancy Farms until November 1, 1994. There is no Market Report for November 1, 1994, included in Petitioner's exhibit 2. The Market Reports for November 3, 4, 8 and 10, 1994, included in Petitioner's exhibit 2, show fancy zukes selling for $4.00 - $6.65 and medium zukes selling $2.25 - $4.65. The prices ($5.00 - $6.00 for fancy zukes and $3.50 to $4.14 for medium zukes) received by Fancy Farms for those zukes delivered to Fancy Farms by Pearce beginning October 28 through November 11, 1994, are in line with the Market Report. Therefore, the prices received by Fancy Farms have been used to calculate the amount due Pearce. From November 10, 1994, through November 15, 1994, Pearce delivered a combined total of 645 units of fancy and medium zukes to Fancy Farms which included delivery receipt ticket numbers 2144, 2162 and 2180. Pearce was paid $2,461.15 by Fancy Farms for those zukes as evidenced by the Grower Statement dated November 25, 1994 (Petitioner's exhibit 1). Fifty-three units of medium zukes on delivery receipt no. 2144 (lot no. 2144-6-38), 128 units of fancy zukes on delivery ticket 2162 (lot no. 2162-6-37), 30 units of medium zukes on delivery ticket no. 2180 (lot no. 2180-6-38) and 66 units of fancy zukes on delivery ticket no. 2180 (lot no. 2180-6-37) were not accounted for by invoice. Therefore, the price established in the Market Report of $5.00, $8.00, $6.00 and $8.00, respectively were used to calculate the amount owed Pearce for those zukes. The total amount calculated as owed to Pearce for the zukes represented by delivery receipt ticket nos. 2144, 2162 and 2180 is $3,513.00. The net difference due Pearce after deducting the amount paid to Pearce and the commission is: $3,513.00 - $2,461.15 - $351.30 = $700.55 On November 29, 1994, Pearce delivered 79 units of fancy zukes and 48 units of medium zukes for a combined total of 127 units and was paid $5.00 per unit for the fancy zukes and $3.00 per unit for the medium zukes for a total of $539.00. From invoice no. 3941 it appears that Fancy Farms made an adjustment for its customer in the price per unit for fancy zukes that was not reflected in the price per unit paid to Pearce. The price per unit of $5.00 for fancy zukes paid Pearce is more in line with the price established in the Market Report and is the price used to calculate the amount due Pearce. Invoice no. 3927 indicates that Fancy Farms was paid $3.00 per unit for medium zukes. Therefore, the amount due Pearce is: $5.00 per unit x 79 units = $ 395.00 $3.00 per unit x 48 units = $ 144.00 Total $ 539.00 Less: Ten per cent commission $ 53.90 Amount received by Pearce $ 539.00 Balance Owed by Pearce -$ 53.90 From December 1, 1994, through December 7, 1994, Pearce delivered 181 units of fancy zukes represented by lot nos. 2253-6-37, 2266-6-37 and 2290-6-37 and 160 units of medium zukes represented by lot nos. 2253-6-38, 2266-6-38 and 2290-6-38 for a combined total units of 341 units and was paid $1,385.00 for those zukes by Fancy Farms as evidenced by Pearce's Grower Statement dated December 15, 1994. The price per unit paid by Fancy Farms to Pearce was $5.00 fancy zukes and $3.00 for medium zukes. Other than 73 units of fancy zukes represented by lot no. 2253-6-37 which were billed out by Fancy Farms at $4.25 per unit, there was no evidence of the price per unit received by Fancy Farms for the balance of the fancy zukes and the medium zukes. On December 1, 1994, the Market Report shows the price per unit for fancy and medium zukes to be mostly $8.65 and mostly $6.65 per unit, respectively. Pearce should received a price of $4.25 per unit for 73 units of fancy zukes; $8.65 per unit for 30 units of fancy zukes and $6.65 per unit for 33 units of medium zukes delivered on December 1, 1994. The per unit price of $6.00 and $3.50 for fancy and medium zukes respectively, received by Fancy Farms as indicated on invoice nos. 3946 and 4049 falls within the per unit price reported in the Market Report for the dates of December 5 & 7, 1994. Therefore, Pearce should receive: $4.25 per unit x 73 units = $ 310.25 $8.65 per unit x 30 units = $ 259.50 $6.65 per unit x 33 units = $ 219.45 $6.00 per unit x 78 units = $ 468.00 $3.50 per unit x 127 units = $ 444.50 Total $1,701.70 Less: Ten percent commission $ 170.17 Amount received by Pearce $1,385.00 Amount owed Pearce $ 146.53 On December 10, 1994, Pearce delivered 39 units of medium zukes and 32 units of fancy zukes to Fancy Farms and was paid $3.50 per unit for medium zukes and $5.50 per unit for fancy zukes for a total $312.50 by Fancy Farms. There is no invoice or other evidence to show what Fancy Farms received for the above 71 units of zukes. However, the Market Report reflects that fancy zukes were selling mostly for $7.00 to $8.00 per unit and medium zukes were selling mostly for $6.00 per unit. Therefore, Pearce should receive: $7.50 per unit x 32 units = $ 240.00 $6.00 per unit x 39 units Total $ 474.00 = $ 234.00 Less: Ten percent commission $ 47.40 Amount received by Pearce $ 312.50 Amount owed Pearce $ 114.10 November 17, 1994 -$ 4.48 November 25, 1994 $ 700.55 December 7, 1994 -$(-53.90) December 15, 1994 $ 146.53 December 23, 1994 $ 114.10 SubTotal Less: Positive Adjustment/ $ 906.80 The net amount owed to Pearce by Fancy Farms: From Grower Statements dated: Grower Statement dated December 25, 1994. $ 127.00 Balance owed Pearce $ 779.80
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Fancy Farms Sales, Inc. be ordered to pay Petitioner Lonnie Pearce the sum of $779.80. DONE AND ENTERED this 28th day of November, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 28th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2559A The parties elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Lonnie Pearce 1676 CR 731 Venus, Florida James A. Crocker Qualified Representative Fancy Farms Sales, Inc. 1305 W. Dr. M. L. King, Jr., Blvd. Plant City, Florida 33564-9006 Gulf Insurance Company Legal Department 4600 Fuller Drive Irving, Texas 75038-6506
The Issue Has Respondent Try Fresh Produce, Inc. (Try Fresh) made proper accounting to Petitioner Green Grassing Company, Inc. (Green Grassing) in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Try Fresh from November 13, 1994, through December 9, 1994, by Green Grassing to be handled by Try Fresh as agent for Green Grassing on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Green Grassing was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statute, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Try Fresh was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8839 issued by the Department, supported by bond number BD 0694273 in the amount of $75,000, written by Florida Farm Bureau General Insurance Company with an inception date of September 23, 1994, and an expiration date of September 22, 1995. Green Grassing delivered certain quantities of agricultural products (squash) to Try Fresh during the fall and winter growing season of 1994-95. However, it is the accounting of the squash that was delivered between November 13, 1994, and December 9, 1994, inclusive, that is in dispute. It was verbally agreed between Try Fresh and Green Grassing that Try Fresh would act as Green Grassing's agent in the sale of the squash delivered to Try Fresh for the account of Green Grassing on a net return basis. There is no dispute as the quantity of squash or size of squash delivered by Green Grassing to Try Fresh during the above period of time. Furthermore, there is no dispute as to the charges made by Try Fresh for handling the squash, including but not limited to the commission charged by Try Fresh. There is some disagreement concerning the quality of the squash delivered by Green Grassing. However, none of the witnesses had personal knowledge as to the quality of the squash delivered by Green Grassing. Upon delivering the squash to Try Fresh, Green Grassing was given a numbered delivery receipt listing Green Grassing as owner of the squash showing the number of cartons delivered, the date delivered, the initials of the employee receiving the squash and the kind and size of squash delivered. On most of these receipts there were four blank squares located just above the line for the date on the receipt. Starting from the left side of the receipt, the squares represent average, below average, poor and very poor quality, respectively. It was the responsibility of the employee receiving the squash for Try Fresh to place a check mark in one of the squares to indicate the quality of the squash upon delivery. Only the accounting for the squash from delivery receipt ticket numbers 086 dated November 13, 1994; 005 dated November 15, 1994; 017 dated November 16, 1994; 047 dated November 17, 1994; 451 dated November 18, 1994; 463 dated November 19, 1994; 500 dated November 23, 1994; 501 dated November 25, 1994; 397 dated December 5, 1994, and 329 dated December 9, 1994, is being contested in this proceeding. The delivery receipts being contested are included in Petitioner's composite exhibit 1 and Respondent's composite exhibit 1. A compilation of those delivery receipts is attached to the Complaint in Petitioner's composite exhibit 2. Once Try Fresh found a market for the squash, a pre-numbered billing invoice was prepared by Try Fresh showing its customer's name and the quantity, description and price of the squash sold. In any given sale, the quantity of the squash sold may include squash furnished by Green Grassing and other producers. Therefore, under description on the billing invoice Try Fresh would show the size and type of squash being sold, the initials of the producer, the quantity of squash being sold for that producer and the producer's receipt number for example, med. s/n GGI 68/086. In its accounting to Green Grassing, Try Fresh prepared a statement which included the delivery receipt number, the quantity of squash sold, description of the product, i.e. med, s/n squash, the price per carton of squash and the total amount for the quantity sold. The statements also noted when a certain quantity of a squash had been transferred to another ticket number or if a trouble memo number (T number) was involved in a particular sale. Payment for the squash was made by Try Fresh to Green Grassing from these statements. Sometimes payment was for only one delivery receipt while at other times for several delivery receipts for different dates. The statements are included as part of Petitioner's composite exhibit 5. Petitioner's composite exhibit 4 is the Florida Vegetable Report, Volume XIV, Nos. 21 - 25 and 27 - 39, dated November 10, 14, 15, 16, 17, 21, 22, 23, 28, 29, 30, 1994 and December 1, 2, 5 - 9, 1994, which establishes prices paid during this period of time for small and medium straight neck squash. The report does not list prices paid for large straight neck squash. There is no evidence that the quality of the squash delivered to Try Fresh by Green Grassing during this period of time was the same quality of squash from which the prices in the report were derived. On November 13, 1994, Green Grassing delivered 32 cartons of small, straight neck squash (sm s/n squash), 145 cartons of medium, straight neck squash (med s/n squash), and 42 cartons of large, straight neck squash (lg s/n squash) to Try Fresh as reflected in delivery receipt number 086 dated November 13, 1994, showing Green Grassing as owner of the squash. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 086 to indicate the quality of the squash at the time of delivery to Try Fresh on November 13, 1994. There is no dispute as to accounting of the 145 cartons of medium, straight neck squash reflected on delivery receipt 086. Try Fresh's statement of accounting to Green Grassing dated November 25, 1994 (page 5 of Petitioner's composite exhibit 5) indicates that the 32 cartons of small , s/n squash listed on receipt number 086 were transferred to receipt number 258 with the price left open and no payment made to Green Grassing. The next entry concerning these 32 cartons of squash appears on a statement dated December 2, 1994 (page 13 of Petitioner's composite exhibit 5) with the price left open and no payment made to Green Grassing. The next entry concerning these 32 cartons of squash appears on an undated statement (page 21 of Petitioner's composite exhibit 5) with reference made to trouble memo (T number 0040) with the price is left open and no payment made to Green Grassing. There is no further reference to these 32 cartons of squash (delivery receipt 086, ticket 258 or T number 0040) in the statement of accounting. There is no evidence that Green Grassing was paid for the 32 cartons of sm s/n squash as reflected by delivery receipt number 086. There is no indication on billing invoice number 065562 that the 32 cartons of sm, s/n squash from delivery receipt number 086 were included in the 240 cartons of sm, s/n squash shipped to Georgia Vegetable Co. as was the normal practice by Try Fresh as set out in Finding of Fact 7. Furthermore, there is insufficient evidence to show that the 32 cartons of squash were found to be below quality by a federal inspection (Certificate No. M-460187-8) on November 17, 1994, which resulted in Try Fresh receiving a reduced price of $1.71 per carton as shown on T number 0017 (trouble memo). This amount was paid to Green Grassing as shown by statement of accounting dated December 23, 1994, (see page 28 Petitioner's composite exhibit 5). However, those 32 cartons of squash were identified as transfer ticket number 259 which relates to delivery receipt number 005 dated November 15, 1994, not delivery receipt number 086 (see pages 9 and 13 of Petitioner's composite exhibit 5). Try Fresh has failed to account to Green Grassing for the 32 cartons of sm, s/n squash delivered on November 13, 1994, as reflected by delivery receipt number 086. Based on the prices Try Fresh billed and was paid for sm, s/n squash by its customer (including sm s/n squash belonging to Green Grassing) during this period, a price of $8.00 per carton would be reasonable price. Try Fresh owes Green Grassing for 32 cartons of sm s/n squash at $8.00 per carton for a total of $256.00. Try Fresh's statement of accounting dated November 25, 1994, (page 5 Petitioner's composite exhibit 5) shows 10 cartons of lg, s/n squash from delivery receipt number 086 as being transferred to ticket number 258 with a note of trouble memo (T number 0036) with the price left open and no payment to Green Grassing. The same page of the statement shows 21 cartons of lg, s/n squash from delivery receipt number 086 being dumped due to poor quality without payment to Green Grassing. The same page shows 11 cartons of lg, s/n squash being transferred to ticket number 258 without any explanation or payment to Green Grassing. These 11 cartons are accounted for at $2.00 per carton for a total of $22.00 on page 21 of Petitioner's composite exhibit 5. There is no evidence (testimony, trouble memo or federal inspection) to show why the 11 cartons of squash brought only $2.00 per carton when lg s/n squash from delivery ticket number 086 were billed out at $8.00 per carton on November 19, 1994 (see billing invoice number 065593). Likewise, there was no evidence as to who purchased these squash. Try Fresh's billing invoice number 065593 shows 50 cartons of lg, s/n squash being billed to G & B at 8.00 per carton which included 10 cartons of lg, s/n squash belonging to Green Grassing from delivery receipt number 086. Trouble Memo (T number 0036) shows a problem with the 50 cartons of lg, s/n squash shipped to G & B Produce on November 19, 1994, and reported on November 23, 1994, which resulted in the price being reduced to $2.50 per carton. Although sketchy, Respondent's accounting for the 10 cartons of squash on T number 0036 and the 21 cartons of squash dumped is sufficient. However, there is insufficient accounting for the 11 cartons of squash. Try Fresh owes Green Grassing $6.00 per carton, the difference between the billed price of $8.00 per carton and the $2.00 per carton paid, for 11 eleven cartons of squash for a total of $66.00. On November 15, 1994, Green Grassing delivered 198 cartons of med, s/n squash and 118 cartons of sm, s/n squash to Try Fresh as evidence by delivery receipt number 005 dated November 15, 1994. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 005 to indicate the quality of the squash at the time of delivery to Try Fresh on November 15, 1994. There is no dispute as to 98 cartons of med, s/n squash and 9 cartons of sm, s/n squash. Try Fresh paid $1.00 per carton for the balance of 100 cartons of med, s/n squash listed on delivery receipt number 005 that is in dispute on February 3, 1995, by check number 2217 (see pages 35 and 36 of Petitioner's composite exhibit 5). However, there is no evidence to show that at the time these med, s/n squash were received by Try Fresh's customer, who allegedly reduced the price to Try Fresh, that the squash was of inferior quality and would demand a price of only $1.00 per carton when those same squash brought an average of $11.00 per carton from other Try Fresh customers. Try Fresh has failed to make a proper accounting for the 100 cartons of med, s/n squash. Try Fresh owes Green Grassing the difference of $10.00 per carton for 100 cartons of squash for a total amount of $1,000.00. The 99 cartons of sm, s/n squash reflected on delivery receipt number 005 that are in dispute were paid for by Try Fresh at the rate of $10.40 per carton for 77 cartons and $1.71 per carton for 32 cartons. Although 77 cartons were billed out at $12.00 per carton (see billing invoice number 065592), there is sufficient evidence (T number 0022) to support the reduction in price to $10.40 per carton. However, there is insufficient evidence to show the reduction in price to $1.71 per carton for the 32 cartons. Try Fresh has failed to make proper accounting for the 32 cartons. Try Fresh owes Green Grassing $8.69 per carton, the difference between $10.40 per carton that was paid for the 77 cartons and the $1.71 paid for the 32 carton for a total amount of $278.08. On November 16, 1994, Green Grassing delivered 64 cartons of med, s/n squash and 25 cartons of sm, s/n squash to Try Fresh as reflected by delivery receipt number 017. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 017 to indicate the quality of the squash at the time of delivery to Try Fresh on November 16, 1994. On November 25, 1994, Try Fresh paid Green Grassing $12.00 per carton for 21 cartons of med, s/n squash and $12.00 per carton for 25 cartons of sm, s/n squash by check number 1447 as shown on pages 4 through of Petitioner's composite exhibit 5. However, page 28 of Petitioner's composite exhibit shows a zero amount for 25 cartons of sm, s/n squash reference to delivery receipt number 017. This is apparently an error, as is T number 0033 (Trouble Memo). Try Fresh also paid $12.00 per carton for the 43 cartons of med, s/n squash by check number 2009 dated January 6, 1995 (see pages 31 and 32 of Petitioner's composite exhibit number 5). There has been proper accounting by Try Fresh of the squash reflected by delivery receipt number 017. On November 17, 1994, Green Grassing delivered 93 cartons of sm, s/n squash and 161 cartons of med, s/n squash to Try Fresh as reflected by delivery receipt number 047. None of the squares are checked and there is nothing in the remarks section of delivery receipt 047 to indicate the quality of the squash at the time of delivery to Try Fresh on November 17, 1994. Only the accounting of the 93 cartons of the sm, s/n squash is disputed. On November 18, 1994, Try Fresh billed out 13 cartons of sm, s/n squash from delivery receipt number 047 to Georgia Vegetable on billing invoice number 065592 at $12.00 per carton. Try Fresh was advised by Georgia Vegetable of a problem. Trouble memo (T number 0022) was prepared by Try Fresh which indicated that after working with Georgia Vegetable a price of $10.40 per carton was agreed upon. Green Grassing was paid $10.40 per carton (see page 30 of Petitioner's composite exhibit number 5). Try Fresh has made proper accounting of these squash. On November 19, 1994, Try Fresh billed out 80 cartons of sm, s/n squash from delivery receipt number 047 to Phil Lucks on billing invoice number 65596 at an undetermined price (the price had been redacted on the billing invoice). Although trouble memo (T number 0032) indicates a problem (brown & decay) with 100 cartons of sm, s/n squash shipped on November 22, 1994, there was no evidence that these were the same squash billed on billing invoice number 065596. Try Fresh has failed to present sufficient evidence to show why these squash did not bring the same price the other sm, s/n squash on delivery receipt number 047 brought. Try Fresh has failed to properly account for these 80 cartons of squash. Therefore, Try Fresh owes Green Grassing $10.40 per carton for 80 cartons of squash for a total of $832.00. On November 18, 1994, Green Grassing delivered 33 cartons of lg, s/n squash, 41 cartons of med, s/n squash and 20 cartons of sm, s/n squash to Try Fresh as evidenced by delivery receipt number 451 dated November 18, 1994. The delivery receipt indicates that the squash was of very poor quality when delivered. The 20 cartons of sm, s/n squash was billed to T & M at $6.00 per carton. Although there is a trouble memo (T number 0025), it appears that Green Grassing was paid $6.00 per carton for these 20 cartons of squash. There is no evidence that these squash were of the same quality as those referenced in the Florida Vegetable Report for this period of time which could demand a price of $12.00 per carton as argued by Green Grassing. Furthermore, Green Grassing has produced no evidence that Try Fresh received $12.00 per carton for these squash. Try Fresh has made proper accounting of the 20 cartons of sm, s/n squash reflected in delivery receipt number 451. The 33 cartons of lg, s/n squash from delivery ticket number 451 required re-grading by Try Fresh. After re-grading, 16 cartons were not fit for sale. The 17 cartons of lg, s/n squash remaining after re-grading were sold by Try Fresh for $6.00 per carton. This amount was paid to Green Grassing by check number 1812 dated December 23, 1994, (see pages 27 and 28 of Petitioner's composite exhibit 5). Try Fresh has made proper accounting for the 33 cartons of squash reflected in delivery receipt number 451. The 41 cartons of med, s/n squash from delivery ticket number 451 was invoiced at an undetermined price (priced appeared to be redacted from the invoice) on billing invoice number 065582. Trouble memo (T number 0033) indicates that the 41 cartons of med, s/n squash from billing invoice number 065582 were brown and decayed and were rejected by Lucks. Try Fresh has made proper accounting of these 41 cartons of squash reflected in delivery receipt number 451. On November 19, 1994, Green Grassing delivered 32 cartons of sm, s/n squash, 54 cartons of med, s/n squash and 3 lg, s/n squash to Try Fresh as reflected by delivery receipt number 463. The delivery receipt indicates that the squash were of poor quality when delivered to Try Fresh on November 19, 1994. There is no dispute as to the accounting of the 54 cartons of med, s/n squash. On December 2, 1994, by check number 1568, Try Fresh paid Green Grassing $16.00 per carton for 25 cartons of sm, s/n squash from delivery receipt number 463 for a total of $400.00 (see pages 12 and 15 Petitioner's composite exhibit 5). On January 5, 1995, by check number 2009, Try Fresh paid Green Grassing $4.00 per carton for 25 cartons of sm, s/n squash from delivery receipt number 463 for a total of $100.00 (see pages 31 and 32 of Petitioner's composite exhibit 5). On December 2, 1994, by check number 1568, Try Fresh paid Green Grassing $1.00 per carton for 7 cartons of sm, s/n squash for a total of $7.00 from delivery ticket number 463. Try Fresh has paid Green Grassing a total of $507.00 for the sm, s/n squash from delivery receipt number 463. However, thirty two cartons of sm, s/n squash at $16.00 per carton would total $512.00. Since there is no evidence to support a price less than the $16.00 per carton paid by Try Fresh on December 2, 1994, Try Fresh owes a Green Grassing a balance of $5.00. There is sufficient evidence to show that the 3 cartons of lg, s/n squash from delivery receipt number 463 were re-graded and none were salvaged. Other than the $5.00 above, Try Fresh has made proper accounting of the squash reflected in delivery receipt number 463. On November 23, 1994, Green Grassing delivered 16 cartons of sm, s/n squash, 44 cartons of med, s/n squash and 5 cartons of lg, s/n squash to Try Fresh as reflected in delivery receipt number 500 dated November 23, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on November 23, 1994. There is no dispute as to the 16 cartons of sm. s/n squash or the 44 cartons of med, s/n squash. The 5 cartons of lg, s/n squash from delivery receipt 500 were sold to American Growers by Try Fresh for $4.00 per carton as reflected in billing invoice number 065628 dated November 25, 1994. Green Grassing was paid this amount by Try Fresh (see pages 19 and 23 Petitioner's composite exhibit 5). Try Fresh has made proper accounting of the squash reflected in delivery receipt number 500, notwithstanding the prices listed in the Florida Vegetable Report for this period of time. On November 25, 1994, Green Grassing delivered 18 cartons of sm, s/n squash, 68 cartons of med, s/n squash and 5 cartons of lg, s/n squash to Try Fresh as reflected in delivery receipt number 501 dated November 25, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on November 25, 1994. There is no dispute as to the accounting for the 18 cartons of sm, s/n squash or the 68 cartons of med, s/n squash. The 5 cartons of lg, s/n squash were sold to American Growers for $4.00 per carton by Try Fresh as reflected in billing invoice number 065628 dated November 25, 1994. Green Grassing was paid this amount by Try Fresh (see pages 19 and 23 of Petitioner's composite exhibit 5). Try Fresh has made proper accounting of the squash reflected in delivery receipt number 501, notwithstanding the price listed in the Florida Vegetable Report for this period of time. On December 5, 1994, Green Grassing delivered 2 cartons of sm, s/n squash, 68 cartons of med, s/n squash and 16 cartons of lg, s/n squash to Try Fresh as reflected in the delivery receipt number 397 dated December 5, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on December 5, 1994. The 2 cartons of sm, s/n squash were sold on December 6, 1994, at $8.00 per carton as reflected in billing invoice number 065749 dated December 6, 1994. Sixteen cartons of the med, s/n squash were sold on December 6, 1994, to K & M South for $8.00 per carton as reflected in billing invoice number 065003 dated December 6, 1994. Twenty seven cartons of the med, s/n squash were sold to Tom Lange Co. for $10.00 per carton as reflected in an unnumbered billing invoice dated December 9, 1994 with customer order no. 23- 4020. Twenty five cartons of the med, s/n squash were sold to G & B for $10.00 per carton as reflected in an unnumbered billing invoice dated December 10, 1994, with customer order number 8130. Sixteen cartons of lg, s/n squash were sold to Erenbaum for $5.00 per carton as reflected in an unnumbered billing invoice dated December 6, 1994 with customer number 9472. Although these prices are below prices quoted in the Florida Vegetable Report for December 6 - 9, 1994, for small and medium s/n squash (no prices quoted for large, s/n squash), the prices are consistent with prices Try Fresh was receiving during this same period for small, medium and large s/n squash that it handled for other producers. Try Fresh has made proper accounting for the squash reflected in delivery receipt number 397, notwithstanding the prices listed in the Florida Vegetable Report for this period of time. On December 9, 1994, Green Grassing delivered 2 cartons of sm, s/n squash, 31 cartons of med, s/n squash and 17 lg, s/n squash to Try Fresh as reflected in delivery receipt number 329 dated December 9, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on December 9, 1994. There is no dispute as to the accounting of the 2 cartons of small and 31 cartons of medium squash. The 17 cartons of large, s/n squash were billed to Erenbaum in billing invoice number 065035 dated December 9, 1994. It appears that the price originally billed to Erenbaum's was redacted and zero per carton written on billing invoice. A federal inspection was called for and the squash were found to be below quality. This resulted in a zero return on the squash. Try Fresh has made proper accounting for the squash reflected in delivery receipt number 329. From a review of Try Fresh's records placed into evidence that its accounting to Green Grassing was not always in accordance with Section 604.22(1), Florida Statutes. Particularly, there was no record of the quality of the squash, no explanation of the adjustments to the original price, or if an explanation was given, it was not clear and no record of when payment was received by Try Fresh from the purchaser making it difficult to determine the timeliness of the accounting of the sales and payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Try Fresh Produce Co., be ordered to pay Petitioner Green Grassing Co., Inc. the sum of $2,437.08. DONE AND ENTERED this 28th day of July, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 28th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1532A The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted jointly by the Respondents Aetna and Naples in this case. Both Petitioner Green Grassing Co., Inc. and Respondent Try Fresh Produce, Co. elected not to file proposed findings of fact and conclusions of law as allowed under Section 120.57(1)(b)(4), Florida Statutes. COPIES FURNISHED: J. Ragon Barnett, III 6 East Broadway Street Ft. Meade, Florida 33841 Hank Cord Post Office Box 995 Zolfo Springs, Florida 33890 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800
The Issue The issue in this case is whether Petitioner's application for licensure as a resident life, variable annuity, and health insurance agent should be denied or approved.
Findings Of Fact Petitioner is a 71-year-old man, who has been licensed to sell insurance since 1974. He was licensed in the State of Ohio to sell variable annuities, life, and health insurance; the same license he is now seeking in the State of Florida. The Department is the governmental agency responsible for, inter alia, licensing and monitoring persons wishing to sell insurance in the State of Florida. Petitioner obtained a license to sell insurance in the State of Ohio in 1974. He made his living selling insurance and expressed an appreciation of his occupation as being very fulfilling. He wishes to continue selling insurance at this time. While residing in Ohio, Petitioner began selling limited partnerships in cable funds for an entity called CabTel. Before doing so, Petitioner inquired of the Ohio Department of Securities whether he would need a securities license to market the cable funds. He was told no such license was required as long as his employer (CabTel) duly-registered the funds. CabTel would purchase the rights to sell cable services in small towns, trailer parks, and other areas around the mid- West. These rights would be packaged in individual "funds," which were numbered. Petitioner sold limited partnerships in funds from five different groups of cable funds numbered XXV, XXVI, XXVII, XVIII, and XXIX. Each of those funds was duly- registered by CabTel, and Petitioner's sales of those limited partnerships are not a concern. However, for some reason, CabTel then failed to register cable funds numbers XXX and XXXI. Petitioner has not been able to ascertain from CabTel why the funds were not registered. The owner of CabTel, a Mr. Wilson, has not returned Petitioner's repeated telephone calls. During his residency in Ohio, Petitioner sold limited partnerships to the two non-registered cable funds. He was not aware the funds had not been registered and, in fact, presumed that they were registered just like the prior groups of funds. It was CabTel's responsibility, not Petitioner's, to register the funds. Then, during calendar year 2000, Petitioner moved to Florida. Upon arrival in Florida, Petitioner applied for and was issued a non-resident license to sell variable annuities, life, and health insurance. His application for licensure was full and complete at that time. In January 2003, the State of Ohio sent Petitioner a Notice of Intent to issue a cease and desist order, requiring him to stop selling limited partnerships in the cable funds. Inasmuch as Petitioner had resigned from CabTel and had no intention to sell additional partnerships, he agreed to a Consent Order with the State of Ohio. The Cease and Desist Order was entered on February 23, 2007. The Order gave Petitioner a right to appeal, but he did not do so because he was in agreement with the terms of the Order, i.e., that he stop selling the limited partnerships. Meanwhile, Petitioner continued to legally sell insurance in Ohio and Florida. Despite Florida regulations requiring him to do so, Petitioner failed to notify the State of Florida concerning the Cease and Desist Order entered in Ohio. There is no evidence in the record as to why Petitioner failed to notify the State of Florida about the Ohio Consent Order. Florida then offered Petitioner a settlement stipulation for Consent Order wherein Petitioner would admit he had failed to provide notice and agree to pay a fine of $500. Petitioner agreed to the stipulation and duly-paid the fine. The Florida Consent Order stated that it was intended to "resolve all issues which pertain to the matters raised in the Department's investigation." Under the Consent Order, Petitioner's license remained in force and effect. On September 15, 2005, the State of Ohio issued a second Consent Order. This one permanently revoked Petitioner's license to sell insurance in Ohio (based on the same issues as in the previous Consent Order). Petitioner initially challenged that Consent Order. Petitioner then made the decision to remain permanently in Florida, so he withdrew his challenge to the revocation of his Ohio license. As a result of losing his Ohio license, Petitioner was no longer eligible for a non-resident license in Florida. He therefore applied for a resident license so he could continue to sell insurance in this state as he had been doing since 2000. The Department denied Petitioner's license application on the basis of three cited statutory sections: Sections 626.611, 626.785, and 626.831, Florida Statutes (2007). No testimony or evidence was introduced at final hearing to explain facts which would make those statutory references pertinent to this case. It may be reasonably inferred that the entry of two consent orders in Ohio forms the basis for the Department's action. Petitioner's unrefuted testimony at final hearing is credible. His demeanor and frankness lead to the conclusion that his improper sale of securities in Ohio was unintentional, excusable, and absent any intent to deceive or mislead anyone. Petitioner has admitted all aspects of his licensure history in Ohio to the Department. He has voluntarily paid the fine imposed by the Department for failing to timely disclose the existence of the Ohio Consent Order. There has been no showing of untrustworthiness by the evidence presented at final hearing. There is no credible evidence in this proceeding that Petitioner's actions in Ohio and/or Florida indicate a lack of trustworthiness. To the contrary, Petitioner's actions were at worst negligent or due to carelessness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services granting Petitioner a license as a resident life, variable annuity, and health insurance agent. DONE AND ENTERED this 2nd day of November, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2007. COPIES FURNISHED: Bruce Pelham, Esquire Robin Levy, Law Clerk Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 William J. Burkett 10177 Sailwinds Boulevard, South Unit J101 Largo, Florida 33773-2375 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Barbara Bradshaw, has filed a claim against the bond in the amount of $435.40 alleging that Passport failed to perform on certain contracted services. For touring a timeshare resort in early 1992, petitioner received a travel certificate as a gift. After paying a $179.00 validation fee, the certificate entitled the holder to a five day, four night stay in the Bahamas. The certificate carried the name, address and logo of Passport International Express, a fictitious name then being used by Passport. Passport's assets and liabilities were assumed by Incentive Internationale Travel, Inc. (Incentive) in June 1991, and the corporation was dissolved sometime in 1991. Even so, Incentive continued to sell Passport's travel certificates at least through April 1992, when petitioner received her certificate. Therefore, the travel services described in those certificates were protected by Passport's bond. To validate her certificate, on April 17, 1992, petitioner sent Passport International Express a check in the amount of $179.00. Thereafter, she upgraded her accommodations, purchased additional land accommodations, and paid for port taxes. These items totaled $242.00, and were paid by check sent to Incentive on May 26, 1992. Throughout this process, petitioner assumed she was still dealing with Passport since she was never formally advised that Passport had been dissolved or that Incentive had assumed all of Passport's obligations. Petitioner was scheduled to depart on her trip on July 24, 1992. On July 15, 1992, Incentive mailed her a form letter advising that it was necessary to "temporarily delay" her trip due to "circumstances beyond (its control.)" She was offered several options, including a total refund of her money to be made in January 1993. She opted for a refund. To date, however, nothing has been paid, and Incentive is now subject to bankruptcy court protection.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted and that she be reimbursed from the bond in the amount of $421.00. DONE AND ENTERED this 13th day of December, 1994, 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 13th day of December, 1994. COPIES FURNISHED: Barbara Bradshaw 1169 La Mesa Avenue Winter Springs, Florida 32708 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Drewes R. Rogge, has filed a claim against the bond in the amount of $1060.00 alleging that Passport failed to perform on certain contracted services. In July 1990, petitioner purchased a travel certificate from Raka Concepts, a telemarketeer authorized by Passport to sell travel certificates on its behalf. Raca Concepts filed for bankruptcy shortly after the transaction occurred, but a Passport representative assured petitioner that it would honor all travel promised by its agent. The certificate, which cost $399.00, entitled the holder and a companion to lodging for four nights in the Bahamas, two nights in Orlando, and two nights in Daytona Beach. Also, the certificate included transportation to and from the Bahamas by a cruise line. After paying for meals on the ship, taxes and additional charges for his children, petitioner's total cost was $634.00. In his claim, however, petitioner has requested a refund of $1,060.00, which includes the cost of upgrades to better accommodations, extra meals, a "VIP package," taxi fares, and a tip. The derivation of this amount is found in petitioner's exhibit 1 received in evidence. All transportion and lodging arrangements were booked by Passport. During the trip, petitioner experienced numerous difficulties, which are described in detail in exhibit 1. Among other problems, he says the cruise ship was overcrowded and dirty, and the original accommodations in Freeport did not meet his expectations (i. e., they were unsafe) causing him to upgrade to better accommodations at a price higher than was represented by Passport's agent. The total cost of the hotel upgrade was $164.85. Also, he was not notified that his scheduled transportation via cruise line from Freeport to Fort Lauderdale was cancelled at the last minute causing him to spend an extra night in the Bahamas. The cruise line, however, paid for his additional night's lodging. When the cruise line returned the following day it sailed to Miami rather than Fort Lauderdale. Petitioner was then taken by bus to Fort Lauderdale at no charge. Finally, before the trip began, petitioner discovered that he was booked into a hotel in Haines City rather than Orlando. After petitioner lodged a protest, Passport agreed to change his accommodations to Orlando. Mainly because of these problems, petitioner has asked for a refund of virtually all of the money spent on the package. Except for the mispresentation regarding the quality of the originally assigned accommodations in Freeport and the price of the upgraded accommodations, which cost petitioner an extra $164.85, there was no showing that Passport was guilty of misrepresentation in its handling of this transaction or otherwise failed to substantially perform the contracted services. Therefore, petitioner should be reimbursed $164.85.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in part and he be paid $164.85 from the bond. DONE AND ENTERED this 12th day of December, 1994, 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 12th day of December, 1994. COPIES FURNISHED: Drewes R. Rogge 5804 Chesterfield Drive Chester, Virginia 23831 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issues are whether Respondent is guilty of demonstrating a lack of fitness or trustworthiness to engage in the business of insurance and, if so, what penalty should be imposed.
Findings Of Fact At all relevant times, Respondent has held a 2-20 license as a property and casualty agent. At all relevant times, Respondent was the agent in charge of Carol City; in fact, he was the lone agent employed by the agency. At all relevant times, Respondent was the lone signatory on Carol City's Wachovia banking account described below. Respondent was first issued a 2-20 license in 1993. By Consent Order dated September 25, 2006, and approved October 17, 2006, Respondent agreed to cease and desist from making excess charges for insurance and from selling ancillary products with the informed consent of the insurer, to pay an administrative fine of $3000 and restitution of about $1600 to four customers, and to one year of probation. This is the sole discipline imposed on Respondent's license over 20 years. At all material times, Respondent was an appointed agent with United Auto. In this case, Carol City effectively remitted premiums directly to United Auto or, for customers who chose to finance their premiums, indirectly to United Auto by remitting premiums directly to United Finance, a premium- financing affiliate of United Auto. As relevant to this case, the subject insurance transactions are simple. Customers of Carol City purchase insurance underwritten by United Auto. As an appointed agent of United Auto, Respondent causes United Auto to commit to coverage upon Carol City's receipt of the premium payment from the customer (and the execution of certain documents that are irrelevant to this case). If the customer chooses not to finance the premium, the customer pays the premium to Carol City, which deposits the customer's check and issues a Carol City check in the same amount, net of commission, to United Auto. If the customer chooses to finance the premium, the customer pays the premium downpayment to Carol City, which deposits the customer's check and issues a Carol City check in the same amount, net of commission, to United Finance. United Finance then advances the full premium payment to United Auto and collects installment payments from the insured. At some point, the payment process changed. United Auto and United Finance electronically swept Carol City's bank account for the payments due each company, relieving Carol City of the responsibility of issuing separate checks to each company. This change in payment processing is irrelevant to this case. As detailed below, Carol City issued a number of bad checks to United Auto and United Finance. Respondent's defenses are essentially that Carol City's checks were dishonored because: 1) customers' checks to Carol City were dishonored and 2) the electronic sweeping of the Carol City account did not provide Carol City an opportunity to follow the usual procedure to avoid liability to its insurers when customers' checks to Carol City were dishonored. These defenses find no support in the evidence. First, the evidentiary record includes nine handwritten Carol City checks, corresponding to the nine counts, that failed to clear when presented for payment by United Auto or United Finance. In other words, these transactions occurred before electronic sweeping was implemented, at least by United Auto and United Finance. Second, at all times--both before and after the institution of the electronic-sweeping process--United Auto and United Finance maintained a procedure by which Carol City could void any transaction if the customer's premium-payment check to Carol City failed to clear. In this procedure, as provided by section 626.9201(2)(a), Florida Statutes, the insurance transaction is void ab initio, once the agent provides statutory notice to the customer whose initial premium payment has been dishonored. United Auto requires the agent to send the insurer a copy of the bad check and a copy of the certified notice letter to the customer, after which United Auto will void the policy, and the agency and agent will have no liability to United Auto or United Finance. Respondent testified vaguely that he thought that he had complied with this policy-cancelation process, but clearly he had not. He produced no documentary evidence of his having ever attempted to advise United Auto or United Finance that Carol City's customers had given Carol City bad checks. And Respondent had many months during which he might have advanced this contention, if it had been true. Instead, rather than following the liability-avoidance procedure outlined above or ever advising United Auto or United Finance of dishonored customers' checks, Respondent allowed United Auto's liabilities to these customers to become fixed and allowed Carol City's liabilities toward United Auto and United Finance to remain unsatisfied. By failing to follow the statutory procedure that would have allowed United Auto to relieve itself of liability to any customers who had failed to pay their initial premium, Carol City obligated itself to pay United Auto and United Finance for this coverage that Carol City allowed its customers to obtain, even if they had not paid for it. After becoming dissatisfied with Carol City's instalment remittances of the unpaid balance due from the failure of its checks to have cleared, United Auto and United Finance obtained a judgment against Carol City for an amount probably a little in excess of $10,000. After becoming dissatisfied with Carol City's payments on this judgment, United Auto and United Finance levied on Carol City's office furnishings. After losing possession of its computers and office furniture, Carol City or Respondent promptly satisfied the amount still due on the judgment. The dishonored checks that Carol City issued to United Auto or United Finance, the amounts, the last four digits of the United Auto policies corresponding to these remittances, and the dates of the checks are: Check No. Amount Policy Nos. Date of check 2640 $2233.82 6792 12/27/08 2643 $ 898.60 7231 12/30/08 7155 7060 7232 6707 2650 $ 658.04 7558 1/6/09 7642 7557 7385 7910 2648 $ 151.90 4852 1/5/09 2660 $1788.97 7986 1/17/09 8057 8322 2988 9323 7990 2659 $2197.92 7845 1/19/09 2661 $ 713.57 7989 1/20/09 8810 8433 8694 8056 2663 $ 505.61 9191 1/22/09 9092 9302 9290 2665 $ 176.25 9427 1/26/09 TOTAL $9324.68 The bank records of Carol City for January and February 2009 show a large number of $35 charges for returned checks and overdrafts, as well as a number of returned deposited items. Although it is impossible, on this record, to determine if any of these returned deposits pertain to any of the 29 policy transactions detailed in the preceding paragraph, such a finding would be irrelevant because of Respondent's above- described failure to avail himself of the available policy- cancelation procedure. Likewise, although the imposition of extraordinary $35 charges may explain why specific Carol City checks did not clear, such a finding would also be irrelevant because it would not excuse the dishonoring of Carol City's checks to United Auto and United Finance. Petitioner has proved that Respondent collected initial premiums from Carol City's customers in 29 transactions, caused United Auto to commit to insurance coverage to these customers, and either: 1) Respondent did not remit these successfully collected premiums to United Auto or United Finance or 2) when the initial premium payments by Carol City's customers were dishonored, Respondent failed to take the necessary steps to void the committed insurance coverage and relieve United Auto, Carol City, and himself of any further liability.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of violating section 626.611(7) and suspending his license for six months. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2013. COPIES FURNISHED: Orrin R. Beilly, Esquire The Law Office of Orrin R. Beilly, P.A. The Citizens Building, Suite 705 105 South Narcissus Avenue West Palm Beach, Florida 33401-5529 David J. Busch, Esquire Department of Financial Services Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, James R. Sherman, has filed a claim against the bond in the amount of $299.00 alleging that Passport failed to perform on certain contracted services. In response to a mail solicitation offer for a five-day, four-night cruise to the Bahamas, in May 1990 petitioner telephoned a Tampa, Florida telemarketeer then using the name of Euno Discount Distributors. After speaking with the telemarketeer, petitioner agreed to purchase the package for a price of $299.00. A charge in this amount was placed on his credit card. During the course of the telephone conversation, petitioner was never told that there were various restrictions on travel dates or that such dates had to be secured at least ninety days in advance. Euno Discount Distributors (or an affiliated entity) had purchased an undisclosed amount of travel certificates from Passport for resale to the public. Passport had agreed to honor and fulfill all travel certificates sold by the telemarketeer, and the certificates carried Passport's name, address and logo. After receiving his travel certificates, petitioner learned for the first time that he could not travel on a weekend when using his certificates and that other restrictions applied. Because of these restrictions, on January 7, 1991, petitioner requested a refund of his money. In response to his inquiry, Passport advised petitioner to contact "the sponsor from whom (he) purchased the package." By now, however, the telemarketeer was out of business. To date, petitioner has never received a refund of his money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $299.00. DONE AND ENTERED this 9th day of January, 1995, 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 9th day of January, 1995. COPIES FURNISHED: James R. Sherman 3198 Bailey Road Dacula, Georgia 32114 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Petitioner, Department of Insurance, is the state agency charged with the responsibility of licensing and monitoring the business activities of insurance agents to assure statutory compliance with the Florida Insurance Code. The Respondent, Larry Densmore, is currently eligible for licensure and is licensed in this state as a life insurance agent, life and health insurance agent, health insurance agent, and variable annuity contracts salesman, and was so licensed at all times relevant to these proceedings. The Respondent at all times relevant to these proceedings was licensed in this state to solicit insurance on behalf of Travelers Insurance Company (Travelers). On or about November 15, 1992, the Respondent visited the offices of American Business Interiors of Melbourne, Florida (ABI) for the purpose of soliciting a Travelers Insurance group health care insurance plan. ABI elected to purchase the group health insurance plan being solicited by Respondent. The Respondent left applications at the company for each employee to complete. ABI distributed the application forms to its employees and collected them after they had been completed so that Respondent could submit the entire application package to Travelers. Each employee, including Sara Perrers, Jo Anne Wallace, and Santiago Jusino, filled out the application completely and truthfully, fully disclosing any and all preexisting health conditions they may have had. Sara Perrers disclosed on her application that she had suffered in the past from a carcinoma of the cervix and had undergone treatment for depression. Pre-existing medical conditions of an applicant would affect whether or not an insurance policy would be issued as well as the amount of premium charged. The Respondent knew or should have known this fact. After being notified that the employee applications had been finished, the Respondent returned, collected the applications and took them to his office to complete the application package. ABI made and retained a copy of each original application for its own records. At no time did the Respondent ever actually meet any of the prospective insureds. Respondent was working on five (5) proposals simultaneously with the ABI proposal. He completed a total of three (3) Travelers' group health insurance submissions which included ABI's proposal and forwarded them to the Travelers' processing centers in Minneapolis, Minnesota and Naperville, Illinois in mid-November, 1992. Upon review of ABI's employees applications, Respondent recognized that four of them disclosed pre-existing medical conditions. Respondent completed an application form for four (4) ABI employees, affixed their names and signatures to the applications and submitted them to Travelers for processing. The applications submitted by the Respondent failed to disclose to Travelers the pre-existing medical conditions of four ABI employees. Other information contained in the applications of Jo Anne Wallace and Sara Perrers was also inaccurate. The Respondent submitted these substitute applications without the knowledge or consent of the four employees and with their signatures fraudulently affixed thereto. The substituted applications submitted by the Respondent contained false information and were a material misrepresentation of fact, which resulted in the issuance of insurance coverage which may or may not have otherwise been issued. Based solely upon the information contained in the applications submitted to Travelers by the Respondent, the group health insurance plan was duly issued to ABI. The Respondent received a commission. In the latter part of June, 1993, Sara Perrers received a letter from the Travelers dated June 23, 1993. It stated that she had failed to disclose certain health conditions, including her treatment for depression, on her insurance application. Sara Perrers' insurance coverage was rescinded for non- disclosure of the health conditions. Had Travelers been aware of Sara Perrers' true health history, American Business Interior's group policy would not have been issued. Understandably perplexed and concerned, ABI contacted the Respondent. The Respondent first represented that it was only a simple mistake and that he would look into it. Several days later, however, the Respondent came to ABI and asked to meet with Jack Drudy, the company comptroller, and Ralph Perrers, the company president as well as Sara Perrers' father, in order to discuss Sara Perrers' insurance. Sara Perrers, in the meantime, had several medical claims that were unpaid because her health insurance had been cancelled. The Respondent paid these claims from his own private funds. Ralph Perrers contacted Travelers about the Respondent's conduct. Travelers, upon investigation, did not consider Sara Perrers to be responsible for what had happened and reinstated her insurance. The Respondent's assertions that the true applications were lost in the mail and that he was directed by an unknown Travelers underwriter to mail in the substituted applications with the unauthorized signatures for "identification purposes only" is unsupported by the evidence. Travelers' policy does not allow agents to sign applicant's names to applications and the company underwriting guidelines reflect this. Only the applicant can sign his or her signature. If an application is lost, a new original application with the applicant's original signature must be procured. Copies are not acceptable. Respondent has been a licensed insurance agent for over seventeen years and has not previously been disciplined by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Respondent, Larry Densmore, be found guilty of violations Sections 626.611(5), (7), (8), (9), 626.621(6), and 626.954(1)(e)1., Florida Statutes. Pursuant to Rules 4-231.080 and 4-231.090, Florida Administrative Code, Respondent's licenses and eligibility for licensure be SUSPENDED for a period of one year, followed by a two year period of probation upon such reasonable conditions as the Commissioner may require. DONE and ENTERED this 30th day of August, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 30th day of August, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18 (in part), 19, 20, 21. Rejected as not supported by clear and convincing evidence: paragraph 6. Rejects as subsumed or irrelevant and immaterial: paragraphs 17, and 18 (in part). Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8 (in part), 10, 18, 27 (in part), and 28 (in part). Rejected as not supported by credible evidence: paragraphs 8 (in part), 14, 15, and 16. Rejected as subsumed or irrelevant and immaterial, paragraphs 9, 11, 12, 24, 25, 26, 27 (in part), 30, and 31. Rejected as a comment on the evidence, conclusion of law or argument paragraphs 13, 17, 19, 20, 21, 22, 23, 24, 28 (in part) and 29. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance 612 Larson Building Tallahassee, Florida 32399-0300 Charles J. Grimsley, Esquire 1880 Brickell Avenue Miami, Florida 33129 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
