The Issue Whether Petitioner's application for a pari-mutuel occupational license as a harness driver should be granted or denied.
Findings Of Fact Respondent is the state agency which is charged with the administration and regulation of the pari-mutuel wagering industry in the State of Florida. On October 29, 1992, Petitioner applied to Respondent for a pari-mutuel occupational license as a harness driver. On January 22, 1993, Respondent denied Petitioner's application. /1 Respondent relies on the provisions of Section 550.10(5), Florida Statutes, which provides, in pertinent part, as follows: (5) The division may deny, revoke, or suspend any occupational license when the applicant therefor or holder thereof shall accumulate unpaid obligations or default in obligations, or issue drafts or checks that are dishonored or for which payment is refused without reasonable cause, when such unpaid obligations, defaults, or dishonored or refused drafts or checks directly relate to the sport of jai-alai or racing being conducted at a pari-mutuel facility within this state. Millpond Equine Clinic, a veterinary clinic, has two outstanding accounts that were opened by Petitioner. One of those two accounts was opened in Petitioner's individual name. For ease of reference, this account will be referred to as the first Millpond account. There has been no payment on that account since October 8, 1991, and there was, at the time of the formal hearing, an outstanding balance in that account in the amount of $104.00. The first Millpond account was for services directly related to the sport of racing being conducted at a pari-mutuel facility within the State of Florida. The second Millpond account opened by Petitioner was opened in the name of Miracle Shoe in care of Petitioner. There was no evidence that Miracle Shoe was a corporation at any time this account was opened. For ease of reference, this account will be referred to as the second Millpond account. This account shows an outstanding balance in the amount of $300.00. There has been no payment on the second account since May 20, 1988. The second Millpond account was for services directly related to the sport of racing being conducted at a pari-mutuel facility within the State of Florida. Miracle Shoe is a plastic horseshoe that Petitioner has attempted to develop for a number of years. Petitioner hopes to market this product to owners and trainers of horses, including race horses, in Florida and elsewhere. Petitioner formed a series of companies ostensibly for the purpose of developing and marketing Miracle Shoe. Three of the corporations formed by Petitioner were Equine Concepts, Inc., Equine Technology, Inc., and Equine Innovations, Inc. At the time of the formal hearing, two of the three corporations, Equine Concepts, Inc. and Equine Innovations, Inc. had no assets and had been dissolved as corporations by the State of Florida. Investors were attracted to these corporations through newspaper advertisements. Investors typically paid $10,000 for a 10 percent share of the corporate stock and were made officers or directors of the corporation. Petitioner thereafter treated corporate funds from the investors as his own and paid his personal expenses from these corporate funds. On at least one occasion, Petitioner formed a new corporation, which he referred to as a "clean" corporation to attract new investors. Petitioner wrote worthless bank checks on his various corporate accounts and accumulated unpaid bills in the name of these corporations. /2 Petitioner and several of the investors in Petitioner's companies attended horse shows in Germany and Kentucky to promote the Miracle Shoe. Part of the marketing strategy was for Petitioner to try to make a favorable impression on the owners and trainers of race horses. One of the reasons Petitioner sought licensure as a harness driver in the State of Florida was to gain access to pari-mutuel grounds to facilitate the marketing of the Miracle Shoe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a harness driver. DONE AND ORDERED this 26th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 26 day of July, 1993.
Findings Of Fact Petitioner, Mecca Farms, Inc. (MFI), is a grower and shipper of fresh produce in Lantana, Florida. Respondent, Mo-Bo Enterprises, Inc. (MBE), is an agricultural dealer in Pompano Beach, Florida, subject to the licensing requirements of the Department of Agriculture and Consumer Services (agency). As such, MBE is obligated to obtain a dealer's license from the agency, and to post a surety bond executed by a surety corpora- tion to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this latter require- ment, MBE has obtained a surety bond in an undisclosed amount from respondent, Hartford Insurance Company of the Southeast. This controversy involves a dispute over payment for a shipment of produce purchased from MFI by MBE, acting as a broker, for further sale to an out-of-state distributor. The origins of the dispute began on or about March 13, 1986, when MFI's sales manager, Peter Andolina, accepted a telephone order from MBE's vice-president, Paul Boris for 1,000 boxes of large peppers. According to the parties' oral agreement, the peppers were to meet U.S. Grade No. 1 standards and were priced at $9.75 per box, or a total price of $9,750. In order to meet U.S. Grade No. 1 standards, the peppers had to be top-grade, and free from bruises, discoloration and decay. As is usual in the business, Andolina had no knowledge who the ultimate buyer was, or where Boris intended to ship the peppers. Boris and Andolina had been dealing with each other for at least six years on a fairly frequent basis. Both understood the shipment was to be free on board (FOB), although they disagree as to whether it was FOB place of destination or FOB place of shipment. If it was the latter, title to the goods passed from MFI to MBE when the goods were loaded on the truck in Lantana. Conversely, a destination contract means the seller (MFI) bears the risk of loss until tender of delivery at final destination. The invoice supporting the transaction does not clarify the matter for it makes no reference to FOB. However, the prior course of conduct between Use parties suggests they intended a destination contract, as did the conduct of Andolina in later dealings with Boris involving this same shipment. On March 13, or the day the order was received, the peppers were placed in cartons at MFI's facility and then stacked inside a refrigerated truck for shipment. Prior to their loading, MFI's foreman claimed he made a cursory inspection of five or ten boxes of peppers and found them to be of satisfactory percent quality. However, he could not recall the details of any other shipments made that day, nor could he recall any other occasion when he inspected a shipment ordered by MBE. Consequently, his testimony is not considered credible, and does not establish whether the goods delivered that day met U.S. Grade No. 1 specifications. It is also noted that there was no requirement in the parties' agreement that MBE perform an inspection prior to loading since MBE relied upon MFI's word and reputation that it would furnish top quality produce. This was not unusual since at least sixty percent of all buyers do not personally inspect the produce at MFI's facility prior to it being shipped to the ultimate buyer. The shipment was destined for a Stop and Shop distributor in Readville, Massachusetts. Although the testimony is conflicting as to normal transit time between Lantana, Florida and the State of Massachusetts, it is found that three to four days transit time is not unusual, although some loads are delivered there in less than two days if the driver puts the pedal to the metal. In any event, petitioner has conceded that if the truck was properly refrigerated, the peppers should have remained in good condition for four days. On March 17, 1986, or some four days after being picked up in Lantana, the peppers were delivered to Stop and Shop in Readville. Stop and Shop apparently made an inspection of the produce prior to being unloaded and found some of the peppers not meeting U.S. Grade No. 1 standards. A federal Department of Agriculture inspector was then called in to make an inspection. The inspection report, which has been received in evidence as respondent's exhibit 1, reflects that the shipment met "quality requirements, but fails to grade U.S. No. 1, only account of condition." Stop and Shop accordingly refused to accept delivery. There is no evidence that other factors such as carrier negligence, inability to unload at destination, or unusually lengthy transit time caused a deterioration in the quality of the produce after being picked up at MFI's facility. After being contacted by Stop and Shop, Boris telephoned Andolina and advised him the shipment had been rejected. Andolina told Boris to "try to give Stop and Shop an adjustment" on the price. Boris did so but was unsuccessful. Boris then telephoned Andolina a second time and asked for instructions on what to do with the peppers. Andolina told Boris to "place the peppers." This meant Boris should sell the produce at a reduced price to a commission merchant who deals in produce that fails to meet grade. It also meant MFI was accepting responsibility for the peppers failing to meet grade. Boris then sold the shipment for $3.57 per carton to W. H. Lailer & Co., Inc., a commission merchant in Chelsea, Massachusetts. After transportation ($1.70 per box) and handling charges and Lailer's commission were taken out of the proceeds, Boris received only $897.50 for the entire shipment. This amount was then forwarded to MFI on April 18, 1986. MFI endorsed the check and deposited it a few days later. Andolina acknowledged at hearing that once goods are rejected by the ultimate buyer because they fail to make grade, it is MFI's standard practice to have the rejected produce sold at the best price possible. It does so by using its own commission merchant, or having the broker perform this task. By following this procedure, MFI accepts responsibility for the less-than-grade produce, and has done so on a number of prior occasions when MBE was forced to sell MFI's produce after it was rejected by the ultimate buyer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered denying the relief requested in the amended complaint filed by Mecca Farms, Inc. DONE AND ORDERED this 17th day of August, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1987.
Findings Of Fact The Petitioner, Thomas J. Chastain, is an agricultural producer and packer in Arcadia, Florida. The Respondent, C. J. Prettyman, Jr., Inc., is a agricultural broker doing business in Exmore, Virginia. Pursuant to an oral agreement, the Respondent has acted as a broker for agricultural products shipped to him by the Petitioner. (Testimony of C. J. Prettyman, Jr.). The complaint filed against the Respondent alleged a failure to properly package and account for five shipments of cucumbers and/or peppers shipped to the Respondent between November 7, 1978 and December 15, 1978. The first disputed shipment occurred November 7, 1978, and involved the sale of 750 cartons of cucumbers in the amount of $1,250.00 on invoice number 2775. (Respondent Exhibit 1A). These cucumbers were subsequently sold to Whamco, Inc., and shipped to Minneapolis, Minnesota. (Respondent Exhibit 1B). On November 11, 1978, the cucumbers were inspected by the United States Department of Agriculture in Minneapolis and found to require repacking due to decay which caused a $560.55 deduction from the amount paid Respondent by Whamco and a corresponding deduction in the amount due the Petitioner. (Respondent Exhibit 1C). The amount due the Petitioner from the sale of the cucumbers on invoice number 2775 is $689.45. On November 15, 1978, 205 assorted cucumbers were sold by the Petitioner to Wick and Brothers, Inc., a wholesale fruit and produce merchant. (Respondent Exhibit 4). Included in the shipment of cucumbers to Wick were cucumbers belonging to other growers. Wick paid the Petitioner for 300 boxes of cucumbers on November 30, 1978. (Respondent Exhibit 3). The Petitioner, therefore, received payment for 95 boxes of cucumbers owned by another grower for whom the Respondent acted as broker. In order to recoup the monies due the other grower, the Respondent deducted $308.75 from the amount due the Petitioner. (Testimony of Respondent). Similarly, Wick purchased 450 boxes of "super cukes" from Petitioner on November 20, 1978. (Respondent Exhibit 6). Wick, however, paid the Petitioner for 700 boxes of cucumbers on December 7, 1978. (Respondent Exhibit 5). Petitioner was thus paid for 250 boxes of cucumbers which were the property of Respondent or another grower. Again to recoup the monies due another grower, the Respondent deducted $562.50 from the amount due the Petitioner. (Testimony of Respondent). Respondent invoiced 600 packages of large peppers on December 15, 1979, at a price per unit of $8.00. (Respondent Exhibit 2B). On the same day, the Petitioner sent the Respondent a statement invoicing 600 large peppers at $9.00. (Respondent Exhibit 2). The 600 peppers were sold by the Respondent to Weiss Market for $8.00. (Testimony of Respondent). The $8.00 sale price was based on the prevailing market rate. (Testimony of Respondent). Invoice number 2911 was not disputed by the parties at the final hearing.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter an Order finding that the Petitioner is due the amount of $982.09 from the sale of these agricultural products by the Respondent. DONE and ORDERED this 13th day of March, 1980, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Earl Peterson, Chief Bureau of License and Bond Division of Marketing Room 418, Mayo Building Tallahassee, Florida 32301 Mr. Thomas J. Chastain Star Route "A", Box 110 Punta Gorda, Florida 33950 C. J. Prettyman, III Vice President C. J. Prettyman, Jr., Inc. Broad Street Exmore, Virginia 23350 The Travelers Indemnity Company One Tower Square Hartford, Connecticut
The Issue Whether Respondent owes Petitioner $14,080 on account for vegetables sold and delivered at the request of Respondent.
Findings Of Fact Petitioner, M.O. "Buster" Williams, is an agent for the producers of agricultural products, carrots, red radishes and white corn. Respondent, Dougal M. Buie, III, d/b/a Blue Star Citrus and Vegetables, is a dealer of such products in the normal course of its business activity. Respondent is licensed by the Department of Agriculture and Consumer Services and is bonded by First Union National Bank of Florida. Petitioner sold Respondent carrots, red radishes and white corn by the truck load between the period May 19, 1993 and June 14, 1993, and was given a Bill of Lading therefor. Respondent was sent an Invoice for each shipment and payment was due in full following receipt of the Invoice. As of the date of the formal hearing, each invoice for shipments made between May 19 and June 14, 1993 remains due and owing and unpaid. The total amount of indebtedness owed by Respondent, Buie, to Petitioner is $14,080.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $14,080.00 DONE and ENTERED this 16th day of March, 1994, in Tallahassee, Leon County, 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 16th day of March, 1994. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Robert F. Vason, Jr., Esquire Potter, Vason and Clements 308 East Fifth Avenue Mount Dora, Florida 32757 M.O. Buster Williams 1412 Raintree Lane Mount Dora, Florida 32757 Lewis Stone, Esquire P. O. Box 2048 Eustis, Florida 32727-2048 First Union National Bank of Florida 21 North Grove Street Eustis, Florida 32726
The Issue Whether Respondents are indebted to Petitioner for produce sold by Petitioner to Respondent, Mo-Bo Enterprises, Inc., and, if so, the amount of the indebtedness.
Findings Of Fact Respondent, Mo-Bo Enterprises, Inc. (Mo-Bo) is a dealer in agricultural products within the meaning of Section 605.15, Florida Statutes. 1/ Mo-Bo is licensed by the Florida Department of Agriculture as a dealer in agricultural products pursuant to Section 604.19, Florida Statutes. Section 604.20, Florida Statutes requires that as a condition of being licensed, an applicant for licensure as a dealer in agricultural products must post a surety bond in the amount of at least $3,000 or in such greater amount as the Department of Agriculture and Consumer Services may require. Respondent, Armor Insurance Company, is Mo-Bo's surety company. Petitioner, a producer of agricultural products, sold to Mo-Bo certain produce in December 1994 and January 1995. For each of the transactions set forth below, Mo-Bo has failed to pay to Petitioner the contract price, despite timely demand for payment. As evidenced by Invoice 56222, Petitioner sold to Mo-Bo on December 6, 1994, a quantity of cucumbers for the sum of $772.50. As evidenced by Invoice 56233, Petitioner sold to Mo-Bo on December 9, 1994, a quantity of produce for the contract price of $3,776.00. This total represents the following: a quantity of xlarge (sic) peppers for the sum of $2,240.00, a quantity of super select cucumbers for the sum of $1,440.00, a quantity of fancy eggplants for the sum of $96.00, and a quantity of snowpeas for the sum of $480.00. As evidenced by Invoice 56242, Petitioner sold to Mo-Bo on December 12, 1994, a quantity of fancy eggplants for the sum of $1,600.00. As evidenced by Invoice 56248, Petitioner sold to Mo-Bo on December 13, 1994, a quantity of produce for the contract price of $5,216.00. This total represents the following: a quantity of xlarge (sic) peppers for the sum of $2,560.00, a quantity of super select cucumbers for the sum of $2,560.00, and a quantity of fancy eggplants for the sum of $96.00. As evidenced by Invoice 56254 Petitioner sold to Mo-Bo on December 16, 1994, a quantity of produce for the contract price of $2,223.75. This total represents the following: a quantity of sun tan peppers for the sum of $723.75 and a quantity of select cucumbers for the sum of $1,500.00. As evidenced by Invoice 56262 Petitioner sold to Mo-Bo on December 20, 1994, a quantity of produce for the contract price of $2,800.00. This total represents the following: a quantity of super select cucumbers for the sum of $2,500.00 and a quantity of fancy zucchini for the sum of $300.00. As evidenced by Invoice 86530A Petitioner sold to Mo-Bo on January 6, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $1,000.00. As evidenced by Invoice 56286 Petitioner sold to Mo-Bo on January 6, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $1,000.00. As evidenced by Invoice 86540A Petitioner sold to Mo-Bo on January 6, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $200.00. As evidenced by Invoice 56290 Petitioner sold to Mo-Bo on January 11, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $2,400.00. Mo-Bo is indebted to Petitioner in the total amount of $20,988.25 for the transactions evidenced by Invoices 56222, 56233, 56242, 56248, 56254, 56262, 86530A, 56286, 86540A, and 56290.
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 Agriculture and Consumer Services that adopts the findings of fact and conclusions contained herein and orders Mo-Bo Enterprises, Inc., to pay to Petitioner the sum of $20,988.25. The final order should also order Armor Insurance Company to pay this amount, up to its maximum liability under its bond, if Mo-Bo Enterprises, Inc., does not pay this amount. DONE AND ENTERED this 4th day of December, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December 1995.
The Issue The issue in this case concerns whether the Petitioner should issue a cease and desist order and/or impose sanctions against the Respondent on the basis of allegations that the Respondent, by failing to have its books, accounts, and documents available for examination and by refusing to permit an inspection of its books and records in an investigation and examination, has violated Sections 520.995(1)(a), (f), and (g), Florida Statutes.
Findings Of Fact Sometime during the month of February of 1991, Ms. Jennifer Chirolis, a Financial Investigator from the Department of Banking and Finance, visited the offices of the Barat Company. She spoke with Mr. Roque Barat and determined that the Barat Company was conducting retail installment sales without being licensed to do so under Chapter 520, Florida Statutes. Mr. Chirolis advised Mr. Roque Barat that he needed a license and asked him to cease operations until he obtained the necessary license. The Barat Company thereafter obtained the necessary license and was still licensed as of the time of the formal hearing. Thereafter, the Department received a complaint about the Barat Company from a customer. The customer's complaint was to the effect that the Barat Company had made misrepresentations concerning the fee paid by the customer. The Department initiated an "investigation" of the customer's complaint and also decided to conduct an "examination" of the Barat Company. On April 22, 1992, a Department Examiner, Mr. Lee Winters, went to the office of the Barat Company to conduct the "examination" and "investigation". The Barat Company is operated out of a small office with two employees and a few filing cabinets. When Mr. Winters arrived, employees of the Barat Company were conducting business with two customers. Mr. Winters identified himself to the employees and informed them that he had been assigned to conduct an "examination" and "investigation" of the Barat Company. A Barat Company employee, Mr. Fred Vivar, said that he could not produce the company's records without express authorization from Mr. Roque Barat, that Mr. Roque Barat was out of the country, that he could not get in touch with Mr. Roque Barat at that moment, but that when he did get in touch with him, he would advise Mr. Roque Barat of Mr. Winter's desire to examine the company's books and records. Following a number of telephone calls over a period of several days, on May 1, 1992, Mr. Vivar advised Mr. Winters that he had received authorization from Mr. Roque Barat for the Department to inspect the books and records of the Barat Company. An appointment was made for the Department to inspect the books and records on May 6, 1992, beginning at 10:00 a.m. On May 5, 1992, a letter from an attorney representing the Barat Company was hand delivered to Mr. Winters. The letter included the following paragraph: It is my understanding that you have requested the opportunity to view the records of the above-referenced company, said inspection to take place on May 6, 1992. Please be advised that if this "inspection" is purportedly being done by your agency's authority, pursuant to F.S. 520.996, that no records will be produced absent compliance by your department with F.S. 520.994 including, but not limited to, the Barat Company exercising its right to challenge said subpoena. The Department concluded from the letter of May 5, 1992, that the Barat Company not only refused to produce records without a subpoena, but that, even if served with a subpoena, the Barat Company would resist compliance with the subpoena unless and until ordered to comply by a court. For that reason the Department did not pursue the issuance of a subpoena. Mr. Winters has been involved in over one hundred "examinations" under Chapter 520, Florida Statutes. In the course of those "examinations" there have been only two licensees that did not produce their records. Those two licensees were the Barat Company and another company known as Phase One Credit. Mr. Roque Barat is an officer and director of both Phase One Credit and the Barat Company. The license of Phase One Credit was revoked for its failure to produce its books and records. The refusal to produce the books and records of the Barat Company was occasioned by an effort on the part of Mr. Roque Barat to avoid payment of "examination" fees authorized by Section 520.996, Florida Statutes. In the summer of 1992, the Barat Company filed for bankruptcy, closed down its business operations, and is currently winding up the business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance issue a Final Order in this case to the following effect: Dismissing the charge that the Barat Company has violated Section 520.995(1)(a), Florida Statutes; Concluding that the Barat Company has violated Sections 520.995(1)(f) and (g), Florida Statutes, as charged in the Administrative Complaint; Imposing a penalty consisting of: (a) an administra-tive fine in the amount of one thousand dollars, and (b) revocation of the Barat Company's license; and Ordering the Barat Company to cease and desist from any further violations of Chapter 520, Florida Statutes. DONE AND ENTERED this 23rd day of February, 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 23rd day of February, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5620 The following are my specific rulings on the proposed findings of fact submitted by the parties. Proposed findings submitted by Petitioner: Paragraph 1: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 2, 3 and 4: Accepted in substance. Paragraph 5: Accepted in substance, with the exception of the last five words. The last five words are rejected as irrelevant to the issues in this case and as, in any event, not supported by clear and convincing evidence. Paragraph 6: Accepted in substance. Paragraph 7: First sentence accepted in substance. Second sentence rejected as irrelevant to the issues in this case. Paragraph 8: First sentence accepted. Second sentence rejected as inaccurate description of letter. (The relevant text of the letter is included in the findings of fact.) Last sentence rejected as subordinate and unnecessary evidentiary details. Paragraph 9: Rejected as irrelevant to the issues in this case. Paragraph 10: First two sentences rejected as irrelevant to the issues in this case. Last two sentences accepted in substance. Paragraph 11: Accepted in substance. Paragraph 12: First sentence accepted in substance. Second sentence rejected as irrelevant to the issues in this case. Paragraph 13: Accepted. Proposed findings submitted by Respondent: As noted in the Preliminary Statement portion of this Recommended Order, the Respondent's proposed recommended order was filed late. The Respondent's proposed recommended order also fails to comply with the requirements of Rule 60Q-2.031, Florida Administrative Code, in that it fails to contain citations to the portions of the record that support its proposed findings of fact. A party's statutory right to a specific ruling on each proposed finding submitted by the party is limited to those circumstances when the proposed findings are submitted within the established deadlines and in conformity with applicable rules. See Section 120.59(2), Florida Statutes, and Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978), in which the court held, inter alia, that a party is not entitled to more than a reasonable period of time within which to submit its proposals. Because the Respondent submitted its proposals late and because those proposals fail to comply with the requirements of Rule 60Q-2.031, Florida Administrative Code, the Respondent is not statutorily entitled to a specific ruling on each of its proposed findings and no such specific findings have been made. (As noted in the Preliminary Statement, the Respondent's proposed recommended order has been read and considered.) COPIES FURNISHED: Ron Brenner, Esquire Office of the Comptroller 401 Northwest 2nd Avenue Suite 708-N Miami, Florida 33128 Louis J. Terminello, Esquire 950 South Miami Avenue Miami, Florida 33130 Michael H. Tarkoff, Esquire 2601 South Bayshore Drive Suite 1400 Coconut Grove, Florida 33133 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Copies furnished continued: William G. Reeves, General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a 56-year-old female. Petitioner has over 26 years of retail sales experience. Petitioner had both outside sales and store management experience, but most of her experience was as a retail floor salesperson. Petitioner worked as a salesperson at GM Appliance, a retail appliance business currently owned and operated by Respondent. She had worked for GM Appliance for over 21 years. Petitioner was a good and capable salesperson. She had never been formally reprimanded in her 21 years with GM Appliance. According to Respondent's owner and manager Todd Williams, there were no problems at all with Petitioner's performance. She was qualified as a salesperson. In 2004, Williams Corporation, a single shareholder entity owned by Mr. Williams, purchased GM Appliance from its previous owner, Curtis Murphy. Mr. Murphy was retiring after owning GM Appliance for many years. Mr. Williams had worked with Mr. Murphy as a wholesaler and was relocating to the Panama City area from Atlanta. At the time of the GM Appliance purchase, Mr. Williams was approximately 40 years old. As would be expected when taking over a business, Mr. Williams made some changes at GM Appliance. He created a new outside sales position. He created and hired a new sales manager. He opened two offices outside of Panama City. Mr. Williams made all the business decisions at GM Appliance. As he was the sole shareholder and owner, Mr. Williams had the sole authority to hire and fire employees. Under Mr. Williams, GM Appliance did not have any formal written employment policies. Respondent has no sexual harassment or anti-discrimination policies and no process on how to handle employment complaints related to age or sex. GM Appliance has no written employee evaluations or job descriptions. If someone had a complaint, he or she needed to "take it to the EEOC," according to Mr. Williams. As a result of Mr. Williams' hiring and firing decisions, the GM Appliance workforce became decidedly younger in Panama City, especially in the sales positions. Since purchasing GM Appliance through 2010, Mr. Williams hired Matt Davis (born 1970) as a sales manager; Ashley Williams (born 1976) in an outside sales position; Kris Westgate (born 1979) as inside sales and delivery; and Amy Farris (born 1982) as inside sales and administrative. In 2010, two sales persons also remained on the staff of GM Appliance from the former owner: Bobby Tew (aged 63) and Petitioner (aged 54). Both primarily worked inside sales. Mr. Williams' hiring decisions made the culture at GM Appliance more "youth" oriented. There was much more juvenile and sexual talk. Mr. Williams was overheard saying that Petitioner wore old women clothes. Some members of GM Appliance's younger workforce often called Petitioner "Mama" or "Old Mama" to her face and behind her back. As a result of the worldwide economic slowdown, the business environment deteriorated for GM Appliance in 2008. To save money, GM Appliance began to cut back on its operations and expenses. In late 2010, unable to stem the tide of losses, Mr. Williams decided he needed to cut additional staff from the sales department in Panama City. Of the six salespeople working in Panama City, he laid off the two oldest: Mr. Tew and Petitioner. The four younger sales persons kept their jobs, but one, Kris Westgate, was reassigned to the warehouse instead of laid off. Also, the two highest paid salespersons, Ashley Williams, Todd Williams' brother, and Matt Davis, remained employed with GM Appliance. Ashley Williams and Davis annually made $45,000 and $80,000, respectfully. Petitioner, at the final hearing, identified the three younger employees retained following her termination as evidence of discriminatory intent: Margaret Walden, Amy Farris, and Matt Davis. Matt Davis, aged 46, was the sales manager and Petitioner's immediate supervisor. Petitioner reported directly to Matt Davis. Amy Farris, aged 30, was originally hired as a secretary to the outside salesman. Although she would sometimes come on the sales floor, her job was to provide support for outside sales. During the course of her employment, her duties expanded to include purchasing agent and SPIFF (manufacturer's incentive program) administrator. Respondent employed outside salespersons and other salespersons (retail sales associates) such as Petitioner, who worked the showroom floor. Outside salespersons reported directly to Respondent's president, Mr. Williams. Margaret Walden, aged 45, was an outside salesperson in Respondent's office in Destin, Florida, and was responsible for developing and maintaining relationships outside the office with client contractors in Destin and South Walton County. A showroom was not maintained at the Destin office. All three identified co-workers held positions with different duties and responsibilities from the position held by Petitioner. Petitioner was not replaced, and no younger (or older) sales associate was retained in a similar position. In July 2011, Respondent hired 51-year-old Steve Williams as a sales associate. This hire was made after the Charge of Discrimination was filed by Petitioner. Steve Williams, a former Sears appliance salesman and manager, solicited a job with Respondent as Respondent had not advertised an available position. After being told repeatedly that Respondent was not hiring sales associates, he offered to accept compensation on a commissioned sales basis. Prior to terminating Petitioner, Respondent terminated six employees, ages 25 (outside sales), 27 (purchasing agent), 52 (warehouse/delivery), 41 (warehouse manager), 59 (accounting manager), and 45 (outside sales) from a period beginning on May 8, 2008, through July 31, 2009. Prior to discharge, Petitioner and the only other associate salesperson on the retail showroom floor, Mr. Tew, had their hours reduced to four days a week. In addition and during Petitioner's tenure, Respondent made changes in the corporation's 401-K plan, health insurance, paid leave, and overtime compensation all changes designed to save money. Mr. Tew was terminated on the same day as Petitioner, September 7, 2010. Janice Heinze (aged 66), Jeff Reeder (aged 54), and Angus Thomas (aged 70), all employees at the Panama City location and all older than Petitioner, were retained by the company. Respondent hired his father (a 1099 contractor), aged 68, to assume outside sales duties at the location in Foley, Alabama, and Cindy Powell, aged 54, was hired to answer the telephone there. Kelly Hill, aged 45, was hired to replace Ms. Walden upon her subsequent resignation and relocation. Petitioner and Mr. Tew were laid off with the intent to rehire. There were no performance or other identified issues with their employment. Mr. Williams stated that he wanted to bring them back to work. Petitioner had better objective sales qualifications than the younger salespeople that were retained. According to the latest records that GM Appliance had, Petitioner was the highest profit margin generating salesperson in Panama City. Mr. Tew had the second highest profit margin. Petitioner and Mr. Tew also had more sales experience and seniority than any of the younger retained workers. Petitioner earned approximately $40,000 in total over the past three years of her employment and has been unemployed since she was laid off in 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 25th day of June, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Daniel Harmon, Esquire Daniel Harmon, P.A. 23 East 8th Street Panama City, Florida 32401 Robert Christopher Jackson, Esquire Harrison Sale McCloy 304 Magnolia Avenue Post Office Box 1579 Panama City, Florida 32402-1579 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondents are indebted to Petitioner for 35 boxes of beans sold by Petitioner to Respondent, Weis-Buy Services, Inc., and, if so, the amount of the indebtedness.
Findings Of Fact Respondent, Weis-Buy Services, Inc., is a dealer in agricultural products licensed by the Florida Department of Agriculture and Consumer Services. Respondent, Aetna Casualty & Surety Company of Maryland acts as surety for Weis-Buy. On January 5, 1995, Mark A. Underwood, Vice President of the Petitioner, sold to Respondent, Weis-Buy Services, Inc., 35 boxes of beans. This sale was the result of the order placed by Hank Douglas, a duly authorized employee of Weis-Buy. The price agreed to by the Petitioner and Weis-Buy was $28.55 per box, for a total purchase price of $999.25. The beans sold by Petitioner to Weis-Buy had been purchased by Petitioner from another grower, Suncoast Farms. There was no written contract between Petitioner and Suncoast or between Petitioner and Weis-Buy. Weis-Buy took delivery of the beans at Petitioner's dock in Homestead, Florida, on January 5, 1995. The beans were loaded into a refrigerated truck in the employ of Weis- Buy on January 5, 1995. From Homestead, the truck drove to Belle Glade, Florida, a trip of approximately 3.5 hours. In Belle Glade, the truck picked up a load of radishes. The truck then went to Immokalee, Florida, where it picked up a quantity of squash. The following day, the truck picked up a load of cherry tomatoes. On January 9, 1995, the beans were inspected by a federal inspector in Columbus, Ohio. 1/ The inspector noted on his inspection report that the beans showed evidence of freeze damage that was ". . . so located as to indicate freezing injury occurred after packing but not at present location". The inspection report noted that the beans were to be dumped. The parties disagree as to when the freeze damage to the beans occurred. Because Weis-Buy believes that the freeze damage occurred before it took delivery of the beans, it has refused to pay Petitioner for the 35 boxes of beans. The reason Weis-Buy believes that the freeze damage occurred before the beans were loaded onto the truck is because the other vegetables that were transported by the refrigerated truck were not damaged. Partly because the beans had been purchased from another grower, Mr. Underwood inspected the beans immediately prior to their being loaded onto Weis- Buy's truck. Based on his testimony, it is found that there was no freeze damage to the beans when they were loaded on Weis-Buy's truck on January 5, 1995. It is found that the freeze damage to the beans revealed by the federal inspection on January 9, 1995, occurred after the beans had been delivered to Weis-Buy. Consequently, it is concluded that Petitioner fulfilled its obligations under the verbal contract and is entitled to be paid the sum of $999.25.
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 Agriculture and Consumer Services that adopts the findings of fact and conclusions contained herein, that finds Respondent Weis-Buy Services, Inc., is indebted to Petitioners in the amount of $999.25, directs Weis-Buy Services, Inc., to make payment to Petitioner in the amount of $999.25 within 15 days following the issuance of the order, and provides that if payment in full of this $999.25 indebtedness is not timely made, the Department will seek recovery from the Aetna Casualty & Surety Company of Maryland, as Weis-Buy's surety. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February 1996.
