The Issue The issues presented concern the attempt on the part of the State of Florida, Department of Natural Resources (DNR) to impose a fine against Ron Harrod (Respondent) for willfully or knowingly damaging or removing products from sovereign lands without the consent of DNR or the State of Florida, Board of Trustees of Internal Improvement Trust Fund. The products spoken to is timber allegedly cut and removed from state-owned lands on November 20, 1985, and April 1, 1986. This purported conduct on the part of the Respondent is said to have violated Section 253.04(2), Florida Statutes (1985), and Rule 16Q- 14.03(2) and (6), Florida Administrative Code.
Findings Of Fact On September 1, 1985, Blanche Farrow made an agreement with the Respondent which allowed the Respondent as the owner of "Rons Cypress" to cut all the timber on her property. Rons Cypress is a business for cutting cypress slabs. This property is described in the agreement as being located on Highway 48 approximately 1 mile east of Floral City, on both the north and south sides of the road. Further it was stated that the timber contemplated in this arrangement could be found along Daniels Drive. A copy of the statement of agreement between Farrow and the Respondent may be found as Respondent's Exhibit 1 admitted into evidence. The exact nature of the Farrow property which is the subject of the agreement with the Respondent may be found in a copy of the Warranty Deed pertaining to this property, which has been admitted as DNR Exhibit 4. This property is located in Citrus County, Florida. The extent of the property over which Blanche Farrow and her husband, Chester B. Farrow, hold ownership does not extend into Lake Tsala Apopka, Lake Bradley and Little Lake, lakes adjacent to their property. These lakes constitute part of an historically meandered lake system and are subject to the sovereign rights of the State of Florida. In effect, the State of Florida owns those water bodies. The limitations of the boundaries of the Farrow property are made clear in the Warranty Deed in which certain language describes the boundaries of the property owned by the Farrows as being ". . . to the waters of Lake Tsala Apopka; thence Southerly along the water's edge of said Lake Tsala Apopka . . ." and ". . . to the water's edge of Lake Bradley . . ." Therefore, notwithstanding Respondent's protestations to the contrary and any statement made by Chester B. or Blanche Farrow, the legal description of the property does not convey title to those individuals for the several lakes described, nor create any leasehold interest on the part of the Farrows to the lakes. In pursuit of the agreement with the Farrows, Respondent made arrangements with Jerry Lovett, who is in the lumber business, to cut trees, principally cypress trees. Through this agreement, Lovett would write checks to Blanche Farrow which would be given to her by the Respondent. The Respondent in turn would be able to take the stumps left over from the cutting of cypress trees and use them for slabs in his business of selling cypress tree products. Respondent was to pay Ms. Farrow for the stumps from which he cut slabs. Respondent also took cypress knees in this area for use in his business. Respondent's Composite Exhibit 3 describes payment made by Jerry Lovett to Blanche Farrow for trees removed. On October 14, 1985, $600.00 was paid for cypress trees. On October 28, 1985, $1,275.72 was paid, of which 52.31 tons of cypress at $6.00 a ton was included in that purchase. On November 4, 1985, $551.28 was paid for cypress trees. On November 15, 1985, he paid $131.92 for removal of cypress trees. In this endeavor, Lovett in the person of his work crew had cut and removed cypress trees which belonged to the State of Florida. Respondent cut and removed slabs from the stumps left following Lovett's lumbering operation and took cypress knees as well belonging to the state. Respondent's involvement with the stumps and knees was through activities of a crew working for the Respondent. Neither the Farrows, Lovett nor Respondent had permission to take cypress products from this land belonging to the State of Florida. Lovett, in his activities, had operated under the misapprehension that the Farrows owned the disputed cypress trees that were cut from lands of the sovereign. He was led to believe in his discussions with Blanche Farrow that Respondent would point out the places where the cut could be made. Lovett also understood from his conversation with Ms. Farrow that certain monuments identifying the extent of her ownership could be found on the side of the road near Lakes Tsala Apopka and Bradley, described as cement corners. Lovett never located those monuments in that as he understood the outer bounds of the Farrow ownership, as Ms. Farrow described them, he would not approach those outer limits in his activities. Respondent likewise believed that the Farrows owned the property where the cypress cutting was being done. Nevertheless, Lovett cut and removed cypress trees in Lake Tsala Apopka, Lake Bradley and Little Lake and Respondent took stumps and knees from those lakes owned by the sovereign. Lovett sold the cypress logs which he removed from the area in dispute, to include cypress logs belonging to the State of Florida. Lovett removed less than 300 trees from the site and left some cypress logs at the site. Lovett through his crew was operating at the site of the dispute sometime approximately a week before October 14, 1985, through November 15, 1985. Lovett ceased his activities in the cutting of cypress when instructed to do so by the Respondent who mentioned something to the effect that the local zoning board said that this cutting had to cease. In the course of his operations in the three lakes, Respondent took 693 knees and between 800 and 1,200 cypress slabs. DNR became aware of the activities of Lovett and the Respondent based upon an investigation that was prompted by observations which Linda Sanford made. Linda Sanford is a zoning inspector for Citrus County. She also lives adjacent to Lake Bradley. As she describes it in her testimony, she observed work crews in the water cutting cypress "off and on." Among the people that she identified as being a member of the work crew was a James Gunn, who is an employee of the Respondent. The first time she saw the Respondent's crew was on November 13, 1985, around Daniels Road and Highway 48. Three persons were in the water and a chain saw was being operated. On November 16, 1985, while at home, Ms. Sanford received complaints from some neighbors about saws being operated and observed Respondent's crew again. One other time on a date that Ms. Sanford does not remember, which would have been following the first two occasions of her observations, Ms. Sanford asked the work crew if they had permits for the activities. Ms. Sanford never saw the Respondent's work crew remove any of the cypress materials. On November 20, 1985, Lieutenant Louis Feulner, then a Sergeant for the Florida Marine Patrol, went to the area where cypress trees had been cut by Lovett and cuttings from stumps and cypress knees were being taken by Respondent's work crew. This area was described by Feulner as the Lake Tsala Apopka chain. A copy of his report of the incident may be found as DNR Exhibit 7 admitted into evidence. Feulner was sent to investigate by his superior, Major Brown of the Florida Marine Patrol. Feulner arrived at the scene of the cutting activity around 3:30 in the afternoon and saw three subjects in the water. Those persons were James Gunn and Respondent's two sons. Feulner saw that cypress trees had been cut down on the site and some were located in the water. He observed stumps in the water as well. These observations were made of cypress products in knee- deep water. Feulner saw a chain saw being operated by the crew. The cutting that was being done was a slab from a stump. He did not see trees being removed from the site of the cutting. Upon inquiry, Gunn told Feulner that he worked for the Respondent and that the Respondent had gotten permission to cut the cypress trees from Ms. Farrow. Feulner advised Gunn that the activities involved in the cutting violated state law. In fact those activities did involve cutting of property belonging to the State. Major Brown had dispatched Lieutenant Fuelner to the questioned site on November 20, 1985, based upon a request of Gordon Roberts, Assistant Chief of Aquatic Lands for NR. At that time, Roberts was employed in a Division of State Lands, as an administrative assistant involved with investigations and enforcement. He held that position until May 1, 1987. On December 4, 1985, Roberts went to the site and observed that cypress harvesting had taken place in wetlands, in a submerged area. The area he observed was one involving buttress cypress trees. Roberts observed that harvesting was being done in an area below a line which represents the minimum flood plan line, a control line for what is described as the water management division. In conversation which Roberts had with the Respondent following the Feulner visit to the site, Roberts explained to the Respondent that there was some question about whether the cutting was on privately owned land or submerged land belonging to the State. He further advised the Respondent not to cut anymore in that area until a determination could be made about ownership of the property. Roberts wrote to the Respondent on December 13, 1985. A copy of this correspondence may be found as DNR Exhibit 1 admitted into evidence. Respondent says he did not receive this correspondence Nonetheless it was sent to the address utilized in noticing of the Respondent of the final hearing in this cause, as attended by the Respondent. The letter mentions concerns of the State on the subject of the belief held by the State that cutting was being done on its property. It went on to say that a survey was going to be conducted to decide where the line of demarcation between the upland owners property and that of the State would occur. The letter states that DNR preferred to have the matter settled amicably but indicated that trees should not be cut where buttressed cypress were found nor any other trees below the ordinary high water line of the lakes in question. It warned Respondent that a fine of $10,000 could be imposed under the provisions of Rule 16Q-14, Florida Administrative Code, for unauthorized removal of the trees and that the fine could be mitigated. Further it was stated voluntary cessation of the tree cutting would be a consideration on the amount of the fine. Finally, the letter stated that the Respondent could contact the State concerning these issues. By activities of Louis Neuman, Senior Forester for DNR, an attempt was made to ascertain the value of cypress trees which were cut in the areas in dispute. Mr. Neuman is qualified to assess the value of the trees cut. A description of his evaluation may be found in DNR Exhibits 12A-C representing the assessment made in Little Lake, Lake Bradley, and Lake Tsala Apopka. This involves a survey of December 18-20, 1985, as made by Mr. Neuman. He found that value involved in the cutting to be $440, $1,364 and $2,948, respectively, for Little Lake, Lake Bradley and Lake Tsala Apopka. These findings were related to Gordon Roberts in a memorandum of February 25, 1986, a copy of which may be found as DNR Exhibit 2 admitted into evidence. His assumption was that 78 trees, 306 trees and 815 trees had been cut within Little Lake, Lake Bradley and Lake Tsala Apopka, respectively. The total amount for cut cypress trees in all three lakes was $4,752, per Mr. Neuman's observations. Comparing his observations to those of the Respondent and Lovett, there is a disparity in valuation; however, it suffices to say that a substantial dollar amount of product was destroyed and removed from sovereign waters. This was an arrangement in which the Respondent was a knowing participant, who profited from the endeavor. In spite of the conciliatory tone of the letter of December 13, 1985, from Roberts to the Respondent, on March 26, 1986, a notice of violation or administrative complaint was brought against the Respondent concerning the observations made on December 4, 1985 and in view of the $4,752 statement of damages on the part of Mr. Neuman. The State sought to collect that amount of money and $2,000 punitive damages. A copy of the March 26, 1986 complaint letter may be found as DNR Exhibit 3 admitted into evidence. That complaint or notice of violation was subsumed in action of July 2, 1986, which forms the basis of the present dispute and for which the Respondent sought timely hearing. In the present complaint, allegations are made concerning observations of November 20, 1985, and the assessment of an administrative fine of $6,752 for what is described as a first offense. There is set forth in the notice of violation a second count or claim of violation pertaining to events of April 1, 1986, in which Respondent is stated to have willfully and knowingly removed products from the same area in which sovereign lands are said to have been involved. For this alleged second offense, DNR sought the imposition of an additional $10,000 fine. The accusations concerning a second offense arise from an investigation performed by Robert Verlato, an officer with the Florida Marine Control, which was conducted on April 1, 1986. He went to the Bradley Lake site where the cutting had been done in the past and observed three individuals at work. These were members of the Respondent's crew, including James Gunn and Respondent's two sons. He saw them operating a chain saw cutting the base of the stump which was approximately two feet in length. Gunn was operating the saw. Verlato told the individuals to stop work and they did. He arrested them for trespassing and removing state property. Respondent then arrived at the scene and indicated that he should be charged if there were any violations, and that the three men were members of his crew under his supervision and control. Verlato also observed other freshly cut stumps than the one which he had seen crew members working on, which stumps were in the same general area. He collected ten of the these fresh-cut stumps and took them as evidence for the criminal court case. Respondent indicates that the activities of April 1, 1986, had to do with the cleanup of this site requested by Ms. Farrow and not for purpose of further removal of cypress products for Respondent's benefit. The facts lead to the conclusion that while the Respondent may have had in mind accommodating Ms. Farrow, he also was accommodating his financial interests as well. This conclusion is supported by Respondent's Exhibit 2 admitted into evidence which was a letter from Ms. Farrow to Respondent on May 19, 1986, after the April 1, 1986, incident in which she asked the Respondent to observe the state's suggestions that no further cutting and hauling be done related to the cypress trees in question. Composite Exhibit 5A-D constitutes photographs of the site related to Lake Tsala Apopka showing where trees have been removed. DNR Common Exhibits 6 and 14 is an aerial photograph which marks the places where the subject cypress trees have been cut in the three lakes. They are shown in red marking. The findings about cutting that was done in Tsala Apopka Lake are not conclusive because the ordinary high water line for Lake Tsala Apopka was not established. This circumstance is discussed in the following paragraph. DNR commissioned an ordinary high water line study to be performed by Douglas A. Thompson, Professional Land Surveyor, registered in the State of Florida, and other states. He is the Assistant Chief of the Bureau of Survey and Mapping for DNR. Other members of his team included Kenneth M. Campbell, Bureau of Geology, and geologist for DNR; Catherine M. Gilbert, Bureau of Aquatic Plants, and botanist for DNR; and Louis A. Neuman of the Bureau of Mine Reclamation, forester. The details of this study are set forth in DNR Exhibit 11 admitted into evidence which is a copy of the ordinary high water lines survey of Bradley Lake and Little Lake. This study established the ordinary high water line elevation for Bradley Lake at 42.75 feet and for Little Lake at 41.75 feet. Areas where cypress trees were observed to have been cut in the operations of Lovett and the Respondent showed that in Little Lake the maximum elevation for those cuttings was 40.3 feet and at Lake Bradley the maximum elevation was at 41.4 feet. Both of these measurements are below the ordinary high water line elevation for those two water bodies. This confirms that Lovett and the Respondent were destroying and taking products belonging to the State which were below the ordinary high water line and within the boundaries of the sovereign's ownership. Due to the special nature of Lake Tsala Apopka, DNR was unable to establish with exactitude the high ordinary high water line for Lake Tsala Apopka. They were able to approximate that line at 42.75 feet in a setting where the maximum elevation of cuttings of cypress within that lake were found at 41.2 feet.
Findings Of Fact Gerretson is the owner of Lot 2, Block 2, Sea View Subdivision, Big Pine Key, Monroe County, Florida. 1/ On January 11, 1984, Gerretson applied to Monroe County for a land clearing permit. The permit, as requested, would have permitted him to clear his lot of vegetation in the area proposed for his house, driveway and septic tank. 2/ Gerretson's application was denied, as was his appeal to the Monroe County Board of Adjustment; however, on October 16, 1985, the Board of County Commissioners of Monroe County (Monroe County), by resolution, reversed the decision of the Board of Adjustment. The Department, pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Adjudicatory Commission. The subject property The Sea View Subdivision is sparsely developed, and its lands are in a natural state except for the existence of two roads. The subdivision is bounded on the north by Port Pine Heights, an established subdivision; on the east and south by lands belonging to the U.S. Fish and Wildlife Service, as part of the National Key Deer Refuge; and on the west by Pine Channel. The Sea View Subdivision is itself within the boundaries of the Key Deer Refuge. Gerretson's lot is located at the southern extreme of the subdivision; abutting the lands belonging to the U.S. Fish and Wildlife Service (the Government) and the northern limit of Watson Hammock, a unique natural area containing endemic, rare and endangered plant and animal species. Separating the Government's property from Gerretson's, is an unnamed 25' wide platted, but non-existent road. 3/ Currently, the closest vehicular access to Gerretson's property is by a fire break on the Government's land. This fire break is separated from Gerretson's lot by an area of natural vegetation approximately 70' in width. To access Gerretson's property from the subdivision would require that the lands dedicated for "no name road" be cleared of native vegetation a distance of 100'- 200' to the closest existing road. There are no plans, however, to construct "no name road." 4/ Gerretson's property is typical of the surrounding area, and characteristic of an old and well established pineland community. Vegetation includes endangered, threatened, and protected species such as South Florida Slash Pine, Key Cassia, Ladder Brake Fern, Thatch Palm, Cabbage Palm, and Silver Palm. Applicable development regulations Gerretsons' property is located in that portion of Monroe County designated as an area of critical state concern. Section 380.0552, Florida Statutes. As such, development must be consistent with Chapters 27F-8 and 27F- 9, Florida Administrative Code, as well as Monroe County's comprehensive plan. Pertinent to these proceedings are Rule 27F-8.03(5), Florida Administrative Code, the coastal zone protection and conservation element of Monroe County's comprehensive plan, and Sections 18-16 through 18-25 of the Monroe County Code. 5/ Rule 27F-8.03(5), Florida Administrative Code provides: Third Objective: Protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat. Guidelines: * * * 5. Prohibit any significant disturbance, including but not limited to land clearing and excavation, of established habitats for documented resident populations of endangered species . . . Monroe County's comprehensive plan, the coastal zone protection and conservation element, dealing with natural vegetative resources and terrestrial wildlife resources provides: NATURAL VEGETATION MANAGEMENT POLICIES In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. Land clearing will be restricted to site area being prepared for immediate construction. If the construction cannot begin within reasonable time, the cleared area will be replanted with ground cover. In areas where temporary removal of vegetation is necessary during construction, replanting of ground cover will be carried out as soon as possible. The unique and endangered status of the hardwood hammock community; and the critical role of the pineland in providing the only living habitat for the Key Deer will be recognized add given due consideration in developing future land use regulations. Development in and adjacent to hardwood hammock and pineland areas will be carefully regulated so as to maintain normal drainage patterns and the ecological balance of the entire area. Outstanding, rare, and unique communities of hardwood hammock and pineland will be preserved to the greatest extent possible. * * * The existing county ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. The County will seek assistance from and cooperate with the appropriate State and Federal agencies in developing and enforcing regulations designed to protect rare, threatened and/or endangered plant species from development, vandalism, tree poaching, and plant thefts. TERRESTRIAL WILDLIFE MANAGEMENT POLICIES In order to conserve and wisely manage the Keys' wildlife resources, the County will conscientiously direct its efforts toward the protection and improvement of wildlife habitats throughout the Keys. Development activities which may degrade, destroy, or severely impact productive areas for wildlife will be required to assess possible means and, to the extent practicable, adopt protective measures for abating these impacts on wildlife populations and habitat. Recognizing that each wildlife group has its own requirements and tolerances, the adequacy of protective measures will be evaluated for each individual species occupying the habitat. Improvement of habitat through encouragement of native vegetation which would give desirable species the best chance to flourish will be supported and encouraged. Planning, design, siting, and construction of public capital improvements and facilities such as roads, solid waste disposal sites, and utility lines and structures will be carefully regulated to minimize impact on wildlife habitat and movement patterns. The County will exert special protective efforts regarding the preservation of rare, endemic, endangered, or threatened species as identified by Federal and State agencies and the habitat required to support these species in the coastal zone. Intensive development will be directed away from the habitat of rare, endemic, endangered, or threatened species. * * * 7. Introduction as pets of those exotic animal species which may represent a potential danger to the native wildlife will be discouraged. Pertinent to this proceeding, the Monroe County Code (Code) provides: Section 18-18 Land clearing permit . . . It shall be unlawful and an offense against the county for any person . . . to clear . . . any land located within the unincorporated areas of the county without having first applied for and obtained a land clearing permit from the building department . . . * * * (c) Review and approval of development site plans which results in the issuance of a development order shall constitute compliance with the requirements of this section. In such cases the land clearing permit will be issued in conjunction with the building permit. * * * Section 18-19 Same-Application . . . Any person requesting a land clearing permit shall file an application with the county building department on a form provided by such department. Such application shall contain the following information: * * * A map of the natural vegetative communities found on and adjacent to the site, prepared by a qualified biologist, naturalist, landscape architect or other professional with a working knowledge of the native vegetation of the Florida Keys . . . With projects that are five (5) acres or more in size, the vegetation map does not have to identify the location of individual trees An overall site plan of the land for which the permit is requested, indicating the shape and dimensions of said land, the purposes for which clearing is requested, and the steps taken to minimize effects of clearing on surrounding vegetation and water bodies. A site plan analysis prepared by a qualified individual, as described above . . . shall be included. Prior to the issuance of a land clearing permit, the building department shall field check the proposed clearing site and shall verify on the application that the facts contained therein, relative to the location and description of vegetation, are factually correct. * * * Section 18-21. Same - Approval. After an application for a land clearing permit has been filed and verified, the building department and the planning and zoning department shall review and consider what effects such removal of vegetation will have upon the natural resources, scenic amenities and water quality on and adjacent to the proposed site. Upon finding that such removal of natural vegetation will not adversely affect the natural resources, scenic amenities and water quality adjacent to the proposed site, the permit shall be approved, approved subject to modification or specified conditions, or denied . . . Areas of concern Gerretson's property and the surrounding refuge area are prime habitat for the Key Deer. 6/ The Key Deer is listed as a threatened species by the State of Florida and endangered by the Federal Government. 7/ Currently, the Key Deer population is on the decline from a once stable population of about 400 to a current population of about 250. 8/ This decline is directly attributable to loss of habitat and the consequent adverse impacts of human presence, such as increased automobile traffic, large domesticated dogs, and loss of wildness in the deer. While the proposed clearing of Gerretson's lot would, in and of itself, probably not significantly impact the Key Deer or its habitat, the fact that he has no road access to his property will require the continuous crossing of adjacent natural habitat and significantly expand the sphere of human impact on the deer. Additionally, the purpose of Gerretson's lot clearing cannot be ignored in analyzing the ultimate impacts of his proposal. The purpose of Gerretson's permit is to allow the construction of a single family residence on his lot. Gerretson's lot is located at the southern extreme of Sea View Subdivision, and his home would be the first built in the area. The construction of this house alone, with its consequent human presence, would adversely impact the Key Deer and its habitat. Considering the precedential nature of Gerretsons' construction, the cumulative impact from the project on the deer would be significantly greater. 9/ Notwithstanding the evident adverse impacts, Gerretson failed to offer any plan to mitigate the impacts of the proposed land clearing and construction on the Key Deer population. Gerretsons' proposal would also displace endemic, protected, threatened and endangered plant species in the area of the proposed house, driveway and septic tank. To support his application, Gerretson submitted a vegetation survey by a "qualified person." The survey does not, however, "map" the natural vegetation by locating individual species but, rather, divides Gerretson's lot into four quadrants and lists the vegetation found in each quadrant. While there is no dispute that the survey accurately lists the vegetation to be found in each quadrant, the survey is of little or no value in identifying the significant vegetation that will be displaced by construction, analyzing the site to determine the least disruptive site layout, or developing an adequate transplanting or revegetation scheme. In sum, Gerretson's vegetation survey fails to comply with the letter or spirit of the Monroe County Code. 10/ At hearing, Gerretson averred that he would transplant any endangered or threatened species, and would limit his fill activity to that required for the septic tank system. 11/ He failed, however, to identify the species that would be impacted or offer any plan for transplantation or revegetation that could be evaluated for its likelihood of success. In sum, Gerretson failed to offer any viable plan to mitigate the impacts of his proposal on endemic, protected, threatened and endangered plant species. The Department also asserts that the subject permit should not issue because Gerretson's property does not abut an existing road. Section 19-135, Monroe County Code, provides: No building or structure shall be erected on a parcel of land which does not abut a public or private road having a minimum width of fifteen (15) feet. The fact that "no name road" does not exist would preclude Gerretson, absent variance from the Monroe County Code, from securing a building permit to construct his residence. While the subject permit is a land clearing permit and not a building permit, there is no rational basis to grant a clearing permit to construct a house if the house cannot be built. Accordingly, it would be appropriate to condition the issuance of a land clearing permit on the issuance of a building permit.
The Issue Whether Respondent committed the violations alleged in the respective Administrative Complaints, and, if so, whether Petitioner should impose against Respondent an administrative fine, penalty, and survey fee.
Findings Of Fact DOAH Case No. 13-2011: Failure to Properly Train, Supervise, and Perform CPR Pine Tree Manor is licensed by the Agency for Health Care Administration to operate a 24-bed assisted living facility. The facility's license number is 8317, and it expires on November 13, 2014. On February 12, 2013, the date of the incident that provides the basis for the instant action, Aurelia Cristobal was employed as a staff member at the facility operated by Pine Tree Manor. Spanish is Ms. Cristobal's native language, and her ability to speak English is very limited. Brent Sparks, the owner and administrator at Pine Tree Manor, acknowledged, when interviewed as part of the post-incident investigation, that Ms. Cristobal struggles at times with English, especially when under stress. Mr. Sparks was aware of Ms. Cristobal's limitations with English prior to February 12, 2013. Within a few days of B.Y.'s death, Ms. Cristobal left the United States and is believed to be currently living in Mexico. Ms. Cristobal did not testify during the final hearing. For the period June 15, 2011, through June 15, 2013, Ms. Cristobal was certified by the American Safety & Health Institute in the areas of automated external defibrillation (AED), cardiopulmonary resuscitation (CPR), and basic first aid. In the spring of 2011, Ms. Cristobal received training from Pine Tree Manor in the areas of facility emergency procedures and do not resuscitate (DNR) orders. Pine Tree Manor's written emergency procedures provide, in part, as follows: In all emergencies, it is important to remain calm and display a sense of control. Upsetting our residents will only induce undue stress. DIAL "911" EMERGENCY in the following cases: A medical emergency such as serious injuries or life threatening incidences. Fires Bodily harm to staff or residents such as terrorism, robbery, inclement weather. Call the administrator if there is any question concerning injury or illness, a resident is missing, security of facility is in doubt, or inspectors enter the facility. In the case of any significant changes or emergency, call the family, guardian and a health care provider. Also, contact the administrator. In cases of non-emergency need for transportation to the hospital or emergency room, call SUNSTAR AMBULANCE SERVICE @ 530-1234. In all cases, use common sense and remain calm, and remember to contact the administrator if in doubt. Pine Tree Manor's policy regarding DNR orders provides that: In the event a resident with a signed DNR experiences cardiopulmonary arrest, our policy is for staff trained in CPR/AED to withhold resuscitative treatment. Staff will report to the administrator immediately and in turn notify [the] resident's medical providers and resident representative. For example, staff on duty shall call 911 to report the condition, or if on Hospice [place] a call to (727) 586-4432, the Lavender Team Patient Leader. B.Y. became a resident of Pine Tree Manor on or about December 23, 2010. B.Y. did not execute a DNR directive. On February 12, 2013, between the hours of approximately 5:00 p.m. and 7:00 p.m., Ms. Cristobal was the only employee on site at Pine Tree Manor. According to J.M., who on February 12, 2013, was a resident at Pine Tree Manor, B.Y. entered a common area of the facility where J.M. and other residents were located. J.M. advised that B.Y. sat on the sofa, and started watching television. While on the sofa, B.Y. stopped breathing. The evidence is inconclusive as to how long B.Y. was incapacitated before others learned of her condition. Although it is not clear from the testimony how Ms. Cristobal was informed of B.Y.'s peril, she did, at some point, learn that B.Y. was incapacitated and was experiencing a medical emergency. After learning of B.Y.'s situation, Ms. Cristobal, according to J.M., became nervous and "didn't know what to do." In fact, Ms. Cristobal was so nervous that she did not call 911, she did not check B.Y. for a pulse, and she did not perform CPR on B.Y. Ms. Cristobal did, however, make several attempts to contact Mr. Sparks. Ms. Cristobal eventually reached Mr. Sparks and advised him of the situation with B.Y. The evidence does not reveal how long B.Y. remained incapacitated before Ms. Cristobal was able to speak with Mr. Sparks. When Mr. Sparks received the call from Ms. Cristobal, he was at his residence in Hillsborough County. Pine Tree Manor is located in Pinellas County. Because Mr. Sparks was in Hillsborough County when he received the call from Ms. Cristobal, he was not able to call 911 and be immediately connected to an emergency operator in Pinellas County. Understanding this limitation, Mr. Sparks called the non-emergency number for the Pinellas County Sheriff's office, who, in turn, contacted the 911 operator and informed them of the emergency. In the course of discussing the emergency situation with Ms. Cristobal, Mr. Sparks learned that she had not called 911. Knowing the emergency nature of the situation and the fact that he could not call Pinellas County 911 directly, Mr. Sparks should have directed Ms. Cristobal to call 911, since she was located in Pinellas County, but he did not. Mr. Sparks should have also instructed Ms. Cristobal to start CPR on B.Y., but he did not. According to the Pinellas County Emergency Medical Services (EMS) Patient Care Report for B.Y., the 911 call was received by the 911 dispatcher at 6:11 p.m. and an EMS unit was dispatched to Pine Tree Manor at 6:12 p.m. The EMS unit arrived at the facility at 6:15 p.m. and commenced treating B.Y. at 6:16 p.m. EMS personnel worked for nearly 30 minutes to revive B.Y., but their efforts were unsuccessful. Richard Sherman (EMT Sherman) is a firefighter and paramedic for the Pinellas Suncoast Fire District. EMT Sherman was the first paramedic to arrive at Pine Tree Manor on the day in question. Upon arrival at the facility, EMT Sherman attempted to enter through the facility's main door, but could not gain immediate entry because the door was locked. EMT Sherman rang the doorbell and knocked on the door in an attempt to gain entry into the facility. Resident J.M. opened the door, and EMT Sherman entered the facility. Upon entry, EMT Sherman noticed that B.Y. was unresponsive on the sofa. He also observed at the same time that there were several residents in B.Y.'s immediate area and that there was no staff present. When EMT Sherman arrived, Ms. Cristobal was in another part of the facility assisting a resident who had become upset because the resident was having difficulty satisfying her toileting needs. Approximately a minute after EMT Sherman started resuscitation efforts on B.Y., Ms. Cristobal appeared in the area where B.Y. was located. Because Ms. Cristobal was wearing scrubs, EMT Sherman correctly identified her as a facility employee. EMT Sherman asked Ms. Cristobal if she knew anything about B.Y. and the circumstances surrounding her collapse. Ms. Cristobal did not respond to EMT Sherman's questions. EMT Sherman testified that Ms. Cristobal, after not responding to his questions, simply "looked at [him] and then turned and walked away" towards the main doors of the facility. While continuing to attempt to resuscitate B.Y., EMT Sherman noticed that Ms. Cristobal appeared to be locking the doors that he had just entered. EMT Sherman instructed Ms. Cristobal several times to not lock the doors because more emergency personnel would soon be arriving. Apparently not understanding EMT Sherman's directives, Mr. Cristobal locked the doors. A few minutes later, district fire chief John Mortellite arrived at the facility. EMT Sherman, while continuing to work on B.Y., heard District Chief Mortellite banging on the locked main doors in an effort to gain entry to the facility. A resident eventually unlocked the doors, and District Chief Mortellite entered the building. When asked why Ms. Cristobal would call him in an emergency situation and not 911, Mr. Sparks explained that it was Ms. Cristobal's practice to always call him in an emergency and that he would, in turn, manage the situation. Mr. Sparks, by allowing Ms. Cristobal "to always call him" in emergency situations instead of 911, created an alternative practice that was directly contrary to the facility's written policy which clearly directs employees to "DIAL '911'" when confronted with a medical emergency. Ms. Cristobal was, therefore, not properly trained. Mr. Sparks, by establishing and, indeed, encouraging a practice that shielded Ms. Cristobal from directly communicating with 911, placed B.Y. in a position where there was an unacceptable delay, though not precisely quantifiable, in contacting emergency personnel on her behalf. In a life or death situation such as that experienced by B.Y., every second matters because, as noted by EMT Sherman, "the longer the delay [in receiving medical treatment] the less probability of a positive outcome." When EMT Sherman arrived at Pine Tree Manor, he was completely unaware of the fact that the only employee on site spoke little, if any English. It is, therefore, reasonable to infer that Mr. Sparks failed to inform either the Pinellas County Sheriff's Office or the 911 operator of Ms. Cristobal's limitations with the English language. By Ms. Cristobal's not calling 911, and Mr. Sparks' not disclosing to the 911 operator that the only employee on site had limited English language skills, decedent B.Y. was placed in the unenviable position of having EMT Sherman's attention divided between resuscitation efforts and worrying about whether Ms. Cristobal was able to comply with his instructions. EMT Sherman testified that Pinellas County EMS, including 911 operators, has protocols in place for dealing with individuals that may not speak English. Had either Mr. Sparks disclosed to the 911 operator Ms. Cristobal's language limitations or had Ms. Cristobal herself called 911, protocols could have been implemented by emergency personnel that would have triggered certain safeguards designed to ensure that Ms. Cristobal's language limitations did not interfere with the delivery of emergency services to B.Y. DOAH Case No. 13-2397: Failure to Remain Generally Aware of the Whereabouts of Resident Most recently, R.D., on September 27, 2010, became a resident of Pine Tree Manor. A demographic data information survey was prepared as part of R.D.'s new resident intake process. R.D.'s intake data showed that he was independent in the areas of ambulation, bathing, dressing, toileting, eating, and transferring. R.D. was identified as needing supervision when performing tasks related to personal grooming. It was also noted that R.D. suffered from anxiety and panic attacks. According to R.D.'s brother Tom, R.D. was under the care of a psychiatrist for many years and "suffered from debilitating panic attacks." When suffering a panic attack, R.D. would often lay on the ground or floor, most often in a fetal position, and remain in this position until help arrived. As a part of the new resident intake process, R.D. was assessed for his risk of elopement. The assessment revealed that R.D. was not at risk for elopement and that he was free to "come and go [from the facility] as he pleases" and that he needed to "sign out" whenever leaving the facility. By correspondence dated March 14, 2011, the administration of Pine Tree Manor reminded R.D. that he needed to adhere to the facility's resident sign-out procedure whenever leaving from and returning to the facility. Approximately ten months after reminding R.D. of the facility's sign-out procedure, Mr. Sparks, on January 2, 2012, updated R.D.'s risk assessment form and again noted thereon that R.D. "may come and go as he pleases" and he "[n]eeds to remember to sign out" when leaving the facility. On May 23, 2012, R.D. was evaluated by a physician and it was noted, in part, that R.D. could function independently in the areas of ambulation, bathing, dressing, eating, grooming, toileting, and transferring. As for certain self-care tasks, the evaluating physician noted that R.D. needed assistance with preparing his meals, shopping, and handling his personal and financial affairs. It was also noted that R.D. needed daily oversight with respect to observing his well-being and whereabouts and reminding him about important tasks. The evaluating physician also noted that R.D. needed help with taking his medication.1/ The evaluation was acknowledged by Mr. Sparks as having been received on May 25, 2012. R.D.'s most recent itemization of his medications shows that on October 10, 2012, he was prescribed Clonazepam and Buspirone. The Clonazepam was administered three times a day at 8:00 a.m., noon, and 8:00 p.m. The Buspirone was administered four times a day at 8:00 a.m., noon, 5:00 p.m., and 8:00 p.m. These medications are often prescribed for anxiety, however, R.D.'s medications listing form does not expressly denote why the drugs were prescribed. At 7:58 a.m., on November 10, 2012, an ambulance from the Pinellas County EMS was dispatched to Pine Tree Manor. When the EMS unit arrived at 8:00 a.m., R.D. was found "on the ground or floor" and was complaining of feeling anxious. While being treated by EMS, R.D. took his 8:00 a.m. dose of Clonazepam and was transported to "Largo Med." Less than 24 hours later, EMS, at 4:29 a.m., on November 11, 2012, was dispatched to 13098 Walsingham Road, because R.D. was again complaining of feeling anxious. This location is apparently near Pine Tree Manor, as the EMS Patient Care Report for this service call notes that R.D. "walked to [the] store." Following the evaluation by EMS, R.D. was again transported to "Largo Med." At 12:24 p.m., on November 18, 2012, EMS was dispatched to a location near Pine Tree Manor where R.D. was found "lying supine on [the] sidewalk." According to the EMS report, R.D. advised that he became lightheaded and fell to the ground. R.D. did not complain of any other symptoms and was transported to a medical facility in Largo for further evaluation. At 1:27 p.m., on November 25, 2012, EMS was dispatched to a 7-11 store near Pine Tree Manor. Upon arrival at the store, EMS personnel found R.D. and, when questioned, he advised that he was again feeling anxious. Per R.D.'s specific request, as noted on the EMS report, he was transferred to St. Anthony's Hospital in St. Petersburg. On November 28, 2012, Mr. Sparks made an entry into R.D.'s file and noted that a neurosurgeon evaluated R.D.'s shunt on that date in an attempt to determine if a malfunction was the cause of R.D.'s panic attacks. Mr. Sparks noted in the record that the doctor advised that the shunt was working properly and that the shunt was ruled out as the "cause of [R.D.'s] panic attacks." As of November 28, 2012, Mr. Sparks was aware that R.D. had recently complained of experiencing panic attacks and that the cause of the same had not yet been determined. It was not confirmed, although it was certainly believed by Mr. Sparks, that R.D. was manipulating medical personnel at local treatment facilities for the purpose of securing medication beyond that prescribed by his regular treating physicians. This belief by Mr. Sparks is reasonable especially in light of R.D.'s request to EMS personnel on November 25, 2012, that he was to be transported to a medical facility other than "Largo Med" for treatment related to his feelings of anxiety.2/ R.D.'s medication record for December 4, 2012, shows that he was given his prescribed medication for the 8:00 a.m. dispensing time. Soon after receiving his medication, R.D. left Pine Tree Manor for the purpose of visiting his local congressman's office. According to the survey notes from the investigation related hereto, the congressman's office is located approximately two miles from Pine Tree Manor. Although it cannot be confirmed, it reasonably appears that R.D. walked to the congressman's office. R.D. did not sign out of the facility when he left Pine Tree Manor on the morning of December 4, 2012. R.D. did, however, inform facility staff that he was going to the congressman's office to discuss an issue.3/ Security video from the building where the congressman's office is located established that R.D. arrived at the congressman's office at 9:50 a.m. At approximately 10:45 a.m., a representative from the congressman's office called Pine Tree Manor and informed them that R.D. was ready to return to the facility. The person receiving the message from the congressman's office contacted Mr. Sparks and informed him that R.D. was requesting a ride back to Pine Tree Manor from the congressman's office. Mr. Sparks was assisting another resident at a local hospital when he received the request to transport R.D. and was, therefore, unable to transport R.D. from the congressman's office. Pine Tree Manor had no obligation to provide transportation services to R.D. Surveillance video from the building where the congressman's office is located confirmed that R.D. exited the building on December 4, 2012, at approximately 10:50 a.m. R.D.'s body was found on December 12, 2012. It is not known what happened to R.D. between the time he left the congressman's office and when his body was eventually discovered.4/ When Mr. Sparks returned to Pine Tree Manor on December 4, 2012, he was advised by staff that R.D. had not returned from the congressman's office. According to the posted work schedule for December 4, 2012, Mr. Sparks worked from 7:00 a.m. to 5:00 p.m. When Mr. Sparks left Pine Tree Manor on December 4, 2012, R.D. had not returned. Mr. Sparks, upon leaving the facility for the day, instructed staff (Aurelia Cristobal) to call him when R.D. returned. Ms. Cristobal's shift ended at 8:00 p.m. Pine Tree Manor employee Laura Munoz worked from 7:00 p.m. on December 4, 2012, to 7:00 a.m. on December 5, 2012. Ms. Munoz was not responsible for assisting R.D. with his medication, so it is unlikely that she would have known that R.D. missed receiving his medication prior to her arrival at work. Because Mr. Sparks left Pine Tree Manor on December 4, 2012, before Ms. Munoz arrived for work, he called Ms. Munoz after her shift started (precise time unknown) and requested that she call him upon R.D.'s return. There were no instructions given to Ms. Munoz by Mr. Sparks as to what she should do if R.D. did not return by some time certain. On December 4, 2012, Mr. Sparks knew that R.D. had never spent the night away from Pine Tree Manor without someone at the facility knowing R.D.'s whereabouts and that R.D. had never gone unaccounted for a period greater than 12 hours. On December 5, 2012, Mr. Sparks' scheduled work time was from 7:00 a.m. to 5:00 p.m. Prior to reporting to the facility on the morning of December 5, 2012, Mr. Sparks learned that R.D. had not returned to his room during the night shift. The exact time is not known when Mr. Sparks acquired this information, but it was likely sometime around 6:30 a.m. After learning that R.D. was still unaccounted for, Mr. Sparks immediately began canvassing the area near Pine Tree Manor. Around this same time, Mr. Sparks contacted R.D.'s brother and apprised him of the situation. At approximately noon on December 5, 2012, Mr. Sparks contacted the Pinellas County Sheriff's Office and reported R.D. missing. Pine Tree Manor has an elopement and missing residents policy that provides, in part, as follows: Residents may come and go as they please and shall not be detained unless family/resident representative and administrator agree supervision is required. A resident leaving the facility should either sign out by the front door or inform a staff member of their departure and provide an estimated time of return. The staff person should sign the resident out and notify other staff on duty. . . . If a resident . . . is deemed missing, staff shall immediately search the entire facility inside and around the facility grounds. . . . Whenever a resident is not found within the facility or its premises, the Administrator will: Notify the resident's representative. Notify the County Sheriff's Department by calling 911. Provide staff and searching parties with information and photo I. D. Instruct the staff to search inside the facility and the premises, the adjacent residential properties to the facility, up and down 131st Street, 102nd Avenue and the cross streets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration: Enter in Agency Case No. 2013002572 (DOAH Case No. 13-2397) a final order finding that Respondent, Pine Tree Manor, Inc., d/b/a/ Pine Tree Manor, committed a Class II violation and assessing an administrative fine of $5,000.00 and a survey fee of $500.00. Enter in Agency Case No. 2013004620 (DOAH Case No. 13-2011) a final order finding that Respondent, Pine Tree Manor, Inc., d/b/a/ Pine Tree Manor, committed a Class I violation and assessing an administrative fine of $8,000.00. It is also RECOMMENDED that the final order not revoke Respondent's license to operate an assisted living facility in the State of Florida, but, instead, suspend Respondent's license for a period of 60 days.7/ DONE AND ENTERED this 5th day of December, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2013.
The Issue Whether Respondent, Greenway Nursery, Inc. (“Greenway”), is liable to Petitioner, Huntsman Tree Supplier, Inc. (“Huntsman”), for the purchase of landscaping trees, and, if so, in what amount.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Huntsman is a Florida corporation for profit, located in Lake City, and engaged in the business of commercial tree farming. Its owners are James and Michelle Huntsman. Mr. Huntsman is the president of the company and Ms. Huntsman is the secretary. Greenway is a Florida corporation for profit, located in Morriston, and engaged in the business of commercial nursery and landscaping. Its owner and president is Brian D. Love. At issue in this proceeding are two deliveries of trees from Huntsman to Greenway, one on March 12, 2015, and one on June 23, 2015. The invoice for the March 12 delivery indicates that it was billed to Greenway. It is for 12 East Palatka holly trees, 65 gallons each. The trees are billed at the rate of $240 each, for a total bill of $2,880. The invoice indicates that Greenway took delivery of the trees by customer pick-up. The invoice for the June 23 delivery also states that it was billed to Greenway. The invoice includes one ligustrum, eight feet in height, for $200; one 2.5-inch DBH1/ slash pine for $130; two 4-inch live oaks with a height of 14 to 16 feet for $250 each; and one cypress for $240. The total amount of the invoice is $1,070. Again, the invoice indicates that Greenway took delivery by picking up the trees. All of the trees in both invoices were destined for a landscaping project at Adena Golf and Country Club in Ocala (“Adena”). Both parties were involved in planting trees in different areas of the Adena property. The parties’ course of dealing until June 2015, was not completely explained at the hearing. It was clear that Huntsman would directly bill Greenway for the trees and that Greenway would take delivery of the trees by pick-up. It was unclear whether Huntsman expected to receive payment directly from Adena or whether Greenway would pay Huntsman for the trees from payments Greenway received from Adena. In any event, Greenway accepted the billings and took delivery of the trees in each instance, thus accepting ultimate responsibility for payment to Huntsman. In its answer to the Complaint, and again at the final hearing, Greenway admitted liability for the $2,880 stated in the March 12 invoice. Mr. Love agreed to pay Huntsman that amount within 15 days of entry of the final order in this case. However, Greenway denied liability for the $1,070 stated in the June 23 invoice. Mr. Love stated that his company was not liable for these trees because they were not part of his project with Adena. He stated that he installed these trees to replace trees on the Adena property that had died, but that the dead trees had not been the responsibility of his company. Ms. Huntsman denied that the dead trees had been installed in the area of the Adena property where her company was working. She testified that Adena’s representative told her that she should seek payment from Greenway because the June 23 tree delivery constituted “warranty work.” Greenway had planted trees on the Adena property that had died, and Adena considered Greenway the warrantor of those trees and therefore liable for their replacement. Based on all of the testimony, it appears that Huntsman found itself in the middle of a dispute between Greenway and Adena as to whether Greenway had warranted the trees that died, and became aware of the dispute only after it had billed and delivered the trees to Greenway in accordance with the parties usual course of dealing. The evidence was insufficient to establish that Huntsman had any responsibility for, or prior knowledge of, the dead trees. It will be left to one or the other of these parties to take up the issue of payment with Adena. Fundamental fairness dictates that this burden should fall to Greenway. Greenway had the warranty dispute with Adena that caused this controversy. Greenway accepted the bill of lading and the invoice for the June 23 shipment, and took delivery of the trees in accordance with the parties usual course of business. As the innocent supplier of the trees, Huntsman should be made whole.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Huntsman Tree Supplier, Inc., against Greenway Nursery, Inc., in the amount of $4,000. DONE AND ENTERED this 12th day of April, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2016.
The Issue Whether the Respondent owes payment to the Petitioners for citrus sold by the Petitioners to the Respondent and, if so, what amount of payment is due.
Findings Of Fact Rogers Brothers Fruit Company was a licensed Florida citrus dealer in Lakeland, Florida, license #110, and as such posted a dealers bond for the 1992- 93 production season. Rogers Brothers Fruit Company, Incorporated was also a licensed Florida citrus dealer in Lakeland, Florida, license #111, and as such posted a dealers bond for the 1992-93 production season. In these cases, both Rogers Brothers Fruit Company and Rogers Brothers Fruit Company, Incorporated dealt interchangeably with, and are equally liable to, the Petitioners. CASE NO. 94-5393 R. T. Poppell and Carl Carpenter, Jr. are citrus growers in Florida. By contract entered into in October, 1992, Poppell and Carpenter sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation based on Erly Juice contract." CASE NO. 94-5394 R. T. Poppell is a citrus grower in Florida. By contract entered into in October, 1992, Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract." CASE NO. 94-5395 Jack P. Sizemore is a citrus grower in Florida. By contract entered into in October, 1992, Sizemore sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract." CASE NO. 94-5396 Mac A. Greco, Jr., and R. T. Poppell are citrus growers in Florida. By contract entered into in October, 1992, Greco and Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract." CASE NO. 94-5397 Maple Hill Groves, Inc., is in the business of growing oranges in Florida. By contract entered into in November 1992, Maple Hill sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract." Erly Juice was a Florida company in the business of acquiring and processing citrus for juice. Although two of the contracts at issue in this proceeding indicate payment is based on participation in the Holly Hill contract, all parties apparently agree that the Erly Juice contract was the relevant payment reference. In this case, Rogers Brothers had entered into agreements with Erly Juice for a specified quantity of oranges. Rogers, in turn, contracted with growers to obtain the fruit Rogers needed to meet the obligation to Erly. Payment to the growers was to be based on "participation." Essentially, "participation" payment means that individual citrus growers get a proportionate share of the proceeds obtained by the buyer. During the 1993 citrus production season, Erly began experiencing financial difficulties. By letter of August 25, 1993, Erly notified citrus suppliers that the Erly plant in Lakeland had been sold and that the company had been reorganized. The letter further states as follows: We have now completed the calculation of the amount due for participants in our early/mid season orange pool. Our interim estimation of the final participation price is $.57 per lb. solid. We are, however, unable to pay the 25 percent advance amount due at this time. Negotiations continue with our bank to resolve this problem. By letter of September 29, 1993, Erly notified Rogers Brothers that Erly was unable to pay its obligations. The letter states: As we discussed on the phone this morning, ERLY Juice is unable to pay 100 percent of the amount due under our fruit contracts. We have, however, negotiated additional credit to allow us to offer 75 percent of the amount due in order to settle without litigation expense.... ...If you agree to settle our obligations to you for $22,630.54, please sign the attached Settlement Agreement and Release.... Rogers Brothers accepted the settlement offer. The settlement amount was calculated at 75 percent of the originally estimated $.57 lb. solid payment. The resulting payment is $.4275 lb. solid. Rogers Brothers, in turn, paid each Petitioner an amount equal to $.4275 lb. solid for the fruit obtained from each grower. The Petitioners assert that they are entitled to additional funds from Rogers Brothers in the amount of the 25 percent of the original $.57 estimate. The evidence fails to support the assertion.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: The Florida Department of Agriculture and Consumer Services enter a Final Order dismissing the Petitions for Relief filed in these cases. DONE and RECOMMENDED this 16th day of August, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 August, 1995. APPENDIX TO RECOMMENDED ORDER The following constitute rulings on proposed findings of facts submitted by the parties. Petitioners The Petitioners' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: I. Rejected, contrary to the evidence. Two of the contracts specify payment is based on the Holly Hill contract. Rejected, cumulative. Rejected, contrary to the evidence which establishes that the $.57 lb. solid payment was estimated. P, Q, R. Rejected, irrelevant. The Petitioners had no contract with Erly. S, T, U, V, W, X. Rejected, unnecessary. The evidence fails to establish that further payment from Rogers Brothers to the Petitioners is due under the terms of the contracts. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: The 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 and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Michael S. Edenfield, Esquire 206 Mason Street Brandon, Florida 33511 Michael D. Martin, Esquire 200 Lake Morton Drive, Suite 300 Lakeland, Florida 33801
Findings Of Fact Maribel Mackey is the sole proprietor of Petitioner Maribe1 Mackey Landscaping. As a woman of Hispanic heritage (Cuban), she falls into two of the presumptive categories of socially and economically disadvantaged individuals. Petitioner is a landscaping company started in April, 1990, by Maribel Mackey as its sole owner. The company does not itself perform either irrigation or sod work as was sworn to on its application; rather, it subcontracts those items of work when they are required under a contract. Petitioner conducts business out of the home of Maribel and Robert Mackey at 5032 S.W. 121 Avenue, Cooper City, Florida. Robert and Maribel Mackey were married in March, 1988. Maribel Mackey had no prior experience in the landscaping business prior to starting her business. Robert Mackey is the sole shareholder of a landscaping company known as Robert Mackey Landscaping, Inc., incorporated in 1988. Prior to the formation of that business entity, Robert Mackey was the sole proprietor of Robert Mackey Landscaping from approximately 1982 to 1988. In total, Robert Mackey has been in the landscaping business for approximately 17-18 years. Robert Mackey also conducts his 1andscaping business out of the home he shares with Maribel. Both businesses share the same office in the Mackey home and share the same office equipment, which includes: a desk, a phone (which doubles as their home phone), a file cabinet, a copying machine and a fax machine. Robert Mackey acts in more than an advisory capacity with Petitioner. Robert Mackey also assisits Maribel Mackey with bid estimating and in the supervision of field operations. Robert Mackey has also helped Maribel Mackey Landscaping to obtain credit for the purchase of landscaping supplies at nurseries and in the leasing of equipment used in the landscaping business. Robert Mackey performed and/or assisted Maribel Mackey in putting together a Proposal on the Kathcar Building. The original of this Proposal was done on a form of Robert Mackey Landscaping and was signed by Robert Mackey. The copy forwarded to the Department and admitted as an exhibit during the final hearing had been altered to reflect Petitioner's name and the signature of Maribel Mackey had been added to that of Robert. Robert and Maribel Mackey maintain a line of credit in the amount of $100,000. This line of credit is available to both of them for either personal or business purposes and requires both signatures. This line of credit is secured by a mortgage on the Mackeys' personal residence. Maribel and Robert Mackey have an informal, oral agreement not to compete with each other in the landscaping business. Maribel Mackey is prepared to forfeit substantial profits on behalf of Petitioner by referring potential landscaping jobs to her husband's company. Maribel and Robert Mackey, as part of this agreement, have agreed that Petitioner will concentrate exclusively on public or government projects, while Robert Mackey Landscaping will concentrate exclusively on private projects. Petitioner has, however, done private work, and Robert Mackey Landscaping has done public work and currently has a bid in on another public project. In addition, Maribel Mackey's business card states on its face that Petitioner performs "residentia1 and interior" work. Petitioner is currently certified as a Women's Business Enterprise and/or a Minority Business Enterprise with the following governmental entities: Broward County, The School Board of Broward County, and Palm Beach County. Broward County, in its evaluation of Petitioner's application to be certified as a WBE/MBE, did not visit Petitioner's place cf business to conduct an on-site interview with Maribel Mackey. Broward County, when it certified Petitioner as a WBE/MBE, did not know that Petitioner shared the same office space and equipment with Robert Mackey Landscaping. Broward County also did not know that Robert Mackey had his own landscaping business or that he had been in the landscaping business for approximately 17-18 years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner Maribel Mackey Landscaping certification as a Disadvantaged Business Enterprise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of January, 1991. LINDA M. RIGOT Hearing Officeer 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 24th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5830 Petitioner's proposed findings of fact numbered 1-3 and 5 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 6-8 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 9-11 have been rejected as not constituting findings of fact but rather as constituting argument. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: William Peter Martin Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458 Maribel Mackey 5032 Southwest 121 Avenue Cooper City, Florida 33330 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458
The Issue The issues in this case are framed by the six-count Administrative Complaint, DPR Case No. 9180247, which the Petitioner, the Department of Professional Regulation, Division of Real Estate, filed against the Respondent, Gary W. Palmer. The first four counts allege the improper handling of an "escrow dispute" in violation of the following sections of the Florida Statutes (1991) and rules of the Florida Administrative Code: Count I, Section 475.25(1)(b); Count II, Section 475.25(1)(d)1.; Count III, Section 475.25(1)(k); and Count IV, Rule 21V-10.032. Counts V and VI allege violations of Section 475.25(1)(b) and Rule 21V-14.012(2) and (3), regarding the general manner in which the Respondent handled all escrow monies.
Findings Of Fact The Respondent, Gary W. Palmer, is a licensed real estate broker in the State of Florida. He has been licensed for approximately 15 years. Other than this proceeding, he has not been the subject of any discipline or any proceeding for alleged violation of Florida's real estate licensure laws or rules. In the summer and fall of 1990, a licensed real estate salesman named James Woods worked for the Respondent. On or about July 30, 1990, Woods entered into a contract for the purchase of real estate from an elderly woman named Estella Bagnell, through her son, Louis Bagnell, who had a power of attorney to conduct the transaction on his mother's behalf. The seller had listed the property through Century 21, Link Realty, Inc. (Link Realty). Shirley Link was the owner and real estate broker of the company. In the transaction, the seller was represented by Marge Lundberg, a licensed real estate salesperson. Under the contract, Woods made a $500 earnest money deposit and was to pay an additional $2,500 cash at the time of closing. Under the terms of the contract, the earnest money deposit was given to the Respondent, who was to hold it in escrow. The seller was to take back a purchase money mortgage for the balance of the purchase price at the time of closing. The closing was to take place on or about August 30, 1990. If Woods was unable to close, the seller was to be paid the $500 earnest money deposit. At Woods's request, the closing was delayed to September 6, 1990, to give him more time to come up with the down payment. Notwithstanding the delay, Woods was unable to pay the down payment, and the deal did not close. Lundberg telephoned Louis Bagnell and advised him that the transaction had not closed but that she had another prospect. A contract to sell the property to the second buyer was offered by the buyer on September 10, and accepted by the seller on September 14, 1990. Under its terms, the second contract was to close on September 25, 1990. The closing was later moved up to September 19, 1990. During a telephone conversation with Lundberg between September 6 and 19, 1990, Bagnell mentioned the Woods deposit and told Lundberg that, since the second tranaction followed so close on the failure of the first to close, and the closing of the second also was to happen very quickly, Bagnell would settle up with Lundberg on both transactions after the closing of the second. It is not clear whether Bagnell made it clear, or that Lundberg understood Bagnell to mean, that Bagnell was expecting to be paid the Woods deposit as a forfeiture. Bagnell testified that he did make it clear that he wanted the forfeited money. Lundberg testified that she did not recall discussing the matter of the deposit with Bagnell at all. The closing of the second contract took place as rescheduled on September 19, 1990. However, no arrangements were made to disburse the $500 Woods earnest money deposit from the Respondent's escrow account. At some point, apparently between September 19 and October 22, 1990, Woods telephoned Lundberg to briefly discuss the matter. According to their testimony, their recollections of the conversation differ markedly. Lundberg recalls that Woods apologized for his inability to close the transaction. Lundberg recalls assuring him not to worry, that it was no problem since the second transaction was signed and closed so quickly. Lundberg recalled thinking that the conversation seemed odd and wondering why Woods had telephoned. Woods, on the other hand, recalls that he placed the call for the purpose of inquiring whether the Bagnells were going to claim his $500 earnest money deposit. He testified that he could not recall the exact words Lundberg used, but he understood Lundberg to tell him that the Bagnells were not claiming the money, since the second transaction was signed and closed so quickly, and that there was "no problem, the money is yours." He interpreted this to mean that Lundberg was authorizing the disbursement of the $500 to him from escrow. On cross-examination by the Respondent, Woods testified that Lundberg told him she had the Bagnells' authorization to release the escrow, but it is doubtful that she used those words. Although the evidence is not clear, and assuming that neither party to the conversation falsely testified, it is likely that Woods was not completely forthright with Lundberg, did not clearly ask to have the $500 disbursed to him from escrow, and was too easily satisfied with what he interpreted as the response for which he was hoping. On the other hand, it also is likely that Lundberg carelessly made comments that could have been susceptible of being interpreted as an authorization to disburse the escrow money. Under the circumstances of what she thought was an "odd" conversation, it would have been wiser for her to clearly state to Woods that she had no authorization from the Bagnells to have the escrow money disbursed to Woods. On or about October 22, 1990, Woods told the Respondent that Lundberg, on behalf of the Bagnells, had authorized the Respondent to disburse Woods's $500 earnest money deposit to Woods. The Respondent drew a check on the escrow account in the amount of $500 and paid it to Woods, who negotiated it. Based on their good working relationship, the Respondent trusted Woods and, based on Woods's representation, believed that Lundsberg, on behalf of the Bagnells, had authorized release of the escrow to Woods. But even the Respondent conceded that it may not have been wise to do so in view of Woods's interest in the money. It is found that, under the circumstances, it was culpable negligence and a breach of trust the Bagnells had placed in the Respondent for the Respondent to release the escrow to Woods, notwithstanding the Respondent's good working relationship with Woods. At some point in time, probably in either late October, or on November 1 or 2, 1990, Louis Bagnell telephoned Link Realty to ask for the earnest money deposit and spoke to either Lundberg or Shirley Link. Link telephoned the Respondent's office and spoke to a male whom she could not positively identify by voice. She thinks it was Woods. She testified that she asked the man if the Woods escrow deposit already had been released. (It is unclear why she should have suspected that it had been.) She also advised him of Bagnell's request. She was told that the Respondent would get back with her after they looked into it. Link also advised Bagnell to make a written demand for forfeiture of the money under the terms of the Woods contract. It is not clear whether this advice was given before or after she telephoned the Respondent's office. On November 2, 1990, Louis Bagnell faxed Link Realty his written demand. Link testified that, when she received the Bagnell demand, she talked to Lundberg about it and asked whether Lundberg "inadvertently stated anything about the escrow." (It is curious that she would have asked such a question before the Respondent got back with her.) On November 5 or 6, 1990, Link received from the Respondent's office a faxed letter written and signed by Woods, indicating that the money was no longer in escrow, having been disbursed to Woods on or about October 22, 1990, upon the authorization of Lundberg to Woods. (It could have been at this point that Link spoke to Lundberg to ask if she had "inadvertently stated anything about the escrow." Cf. Finding 16, above.) On November 6, 1990, Link faxed to the Respondent a letter stating that Lundberg was not a broker and had no control over the escrow and stating that the only people who can release an escrow deposit are the "Seller, Buyer, or Realtors, all with the signed release of escrow (not the word of anyone)." The faxed letter concluded: "As you are aware the Seller is making a formal request on this deposit and it is my duty at this time to send this to FREC [the Florida Real Estate Commission]." Upon receipt of the Links fax, and further discussion with Woods, the Respondent was unsure how to proceed. In part to test Woods's motives, the Respondent decided to ask Woods to return the $500, reasoning that if Woods had lied to the Respondent in order to get the money, he probably was in financial need of it, and would be unwilling or unable to return it. Woods passed this test, willingly returning the $500 to the Respondent by check dated November 9, 1990. The memorandum on the check indicated "escrow replacement." At the same time, Woods continued to maintain that, in his telephone conversation with Lundberg, she had authorized the release of the escrow. The Respondent was concerned that, by redepositing the $500 into his escrow account, he would be making an admission against interest that the Respondent wrongfully had released it to Woods on October 22, 1990. The Respondent telephoned Randy Schwartz, a Florida licensed attorney with the Florida Board of Realtors, to discuss the question. Schwartz was not available, and the Respondent was referred to a woman named Grace Guardiz (phonetic), who the Respondent was given to understand also was an attorney. The Respondent did not retain the individual for the purpose of giving him legal advice or a legal opinion. It is not clear precisely what the Respondent asked or what the person told him. The Respondent testified that they discussed the subject in general terms and that the woman essentially agreed with the Respondent that he was in a "catch 22": if he did not deposit the money in his escrow account, he would be susceptible to the charge of not maintaining the money in escrow; if he did deposit the money in his escrow account, he would be susceptible to the charge of having wrongfully released it to Woods on October 22, 1990. With Woods's agreement, to avoid making an admission against interest that the Respondent wrongfully had released the money to Woods on October 22, 1990, the Respondent decided to deposit the money in his operating account, where it has remained to this day. The Respondent's position is that the money rightfully belongs to Woods. Woods testified that he understood the matter had been referred to the Florida Real Estate Commission (FREC) as an escrow dispute for resolution through issuance of an escrow disbursement order by FREC. He recalled being in the Respondent's office when the Respondent telephoned FREC about this. But the matter never was referred to FREC for an escrow disbursement order. Perhaps, Woods was recalling the concluding statement in Links' November 6, 1990, faxed letter. See Finding 17, above. Eventually, Louis Bagnell, in his mother's behalf, sued the Respondent in the Florida circuit court in Hillsborough County for recovery of the $500. Meanwhile, Louis Bagnell moved his residence and place of employment from Orlando to Pensacola. After the Respondent filed his answer in court, the Bagnells dismissed the suit without prejudice. During a routine August, 1990, audit that was completed before the Bagnell-Woods matter was brought to the Department's attention, it was discovered that the Respondent routinely maintains $141 of his own money in his escrow account. His purpose is twofold: first, the odd sum of $141 in the account alerts him and reminds him that it is his escrow account (to the Respondent, "141" means "one for one"); second, the odd sum of $141 added to the account helps the Respondent notice whether he wrongfully has been charged a service fee by the bank. The auditor accepted this explanation and did not cite the Respondent for an "overage" in the account. However, the auditor noted that the Respondent was not signing monthly reconciliation statements for the account, as required, and admonished him to do so. Had it not been for the Bagnell-Woods "escrow dispute," no further action would have been taken against the Respondent as a result of the August, 1990, audit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order: (1) reprimanding the Respondent for his violations of Sections 475.25(1)(b), (d)1., (e) (by violating F.A.C. Rule 21V-14.012(2)), and (k), Fla. Stat. (1991); (2) fining him $1,500; (3) requiring him to immediately place the $500 Woods re- deposit in his trust account and, within 30 days of entry of the final order, exercise one of the "escape procedures" set out in Section 475.25(1)(d)1.; and (4) requiring him to successfully complete 60 hours of post-licensure education for brokers, including a 30-hour broker management course, and provide evidence of completion to the Department within one year of entry of the final order. RECOMMENDED this 16th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3746 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Department's proposed findings of fact (the Respondent not having filed any): 1.-22. Accepted and incorporated to the extent not subordinate or unnecessary. 23. Rejected as not proven as to Woods. They had a conversation which Woods, at least, thought was about the deposit. 24.-26. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that it was on November 3; otherwise, accepted and incorporated. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. 30.-33. Accepted and incorporated to the extent not subordinate or unnecessary. 34. Rejected as not proven that it was to "'prove' that it was not an escrow deposit." 35.-37. Accepted but subordinate and unnecessary. 38. Rejected as not proven. 39.-42. Accepted and incorporated to the extent not subordinate or unnecessary. 43. Rejected as not proven. 44.-47. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Gary W. Palmer 5225-A Ehrlich Road Tampa, Florida 33624 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented for decision herein is whether or not Respondent exhibited financial mismanagement, misconduct, diversion, gross negligence or incompetence, failed to properly supervise a construction project in violation of sections 489.129(1)(h), (j) and (m); 489.119 and 489.105(4), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: At times material herein, Respondent was a certified general contractor in Florida having been issued license number CG C016802. On November 27, 1985, Respondent contracted with Dr. Blaine Woods, a chiropractor, to construct a residence at Lot 188, Whispering Woods Subdivision, 8020 NW 47th Drive, Coral Springs, Florida for a price of $248,307.00. According to the terms of the contract, the construction was to be completed in five months. (Petitioner's Composite Exhibit 16, Article 2) Construction commenced on the Woods' residence during December, 1985. During construction, Dr. Woods made draw payments to Respondent totaling $211,44.00 or approximately 85% of the contract price. The contract provided that the final draw payment, amounting to 15% of the contract price, was to be paid upon issuance of a Certificate of Occupancy (CO). During the latter stages of construction, Respondent frequently was on the job site by himself. On several occasions, Dr. Woods personally assisted Respondent in the construction. Dr. Woods had contracted to sell his home when construction commenced on his new home. He sold it in early August and was forced to move. Based on that fact, a temporary CO was issued on August 1, 1986 and Dr. Woods moved into the new home on August 2, 1986. As of August 2, many of the contract items had not been installed or were defective including: the pool heater, two shower enclosures, cabinets in a game room, spa decking and floor tile at the entrances, three garage door openers, 13 ceiling fans, pantry shelving, a roof that leaks, numerous electrical outlet problems and the pool deck which was not installed as Respondent agreed by the contract. Upon occupying the home, Dr. Woods began receiving phone calls and personal visits from subcontractors and materialmen who had supplied either services or materials, demanding payment. The majority of the subcontractors had been told by Respondent that they could not be paid because Dr. Woods had not paid him. Over the next several weeks, approximately twenty (20) subcontractors and materialmen approached Dr. Woods for payment of invoices totaling $71,451.37. Dr. Woods attempted, unsuccessfully, to have the subcontractors return to the house to finish the work. As a result, Dr. Woods was forced to hire additional subcontractors to complete his home. Dr. Woods spent a majority of the $37,000 final draw reserve completing his home. Eleven liens have been filed against the Woods residence as a result of Respondent's failure to pay subcontractors and/or materialmen. Dr. Woods, through legal counsel, was able to remove most of the liens filed against his home based on legal technicalities. However, in so doing, he incurred legal fees in the amount of $12,791.76. At the time of hearing, four outstanding liens remained on the Woods' residence. Jerry Hicks, a licensed architect and general contractor in Florida, was tendered as an expert in the areas of architecture and contracting. Hicks opined that Respondent significantly underbid the Woods' residence and was therefore grossly negligent or incompetent for entering into a contract which he could not perform. (Deposition of Jerry Hicks, Petitioner's Exhibit 5). Julio Aldecocea, also a licensed architect and general contractor, was tendered as an expert in the fields of architecture and general contracting. Aldecocea also opined that when Respondent found himself unable to pay subcontractors because he underbid the project, he committed gross negligence or incompetence in entering into a contract he could not perform. Aldecocea noted that it is standard procedure for contractors to monitor the progress of a job to ensure that costs are running within budget and to take corrective measures if costs begin to exceed budget. Respondent, by failing to take this step, committed financial mismanagement when he let outstanding bills to subcontractors in the amount of $71,451.37 remain unpaid. During the hearing, Respondent admitted that he expected to make a profit of approximately $24,000.00 on the Woods residence when he entered into the contract. Based on the amount of money outstanding to subcontractors and materialmen, Aldecocea opined that it was misconduct for Respondent to tell the subcontractors and supplies that they cannot be paid because Dr. Woods had not paid the final draw when he had been, in fact, paid. Valid liens have been recorded against Dr. Woods' property for supplies and services ordered by Respondent for the Woods' project. Respondent has received funds from Woods to pay for those suppliers and services. Respondent failed to remove the liens from the Woods' property. Respondent admitted, in a telephone conversation with Dr. and Mrs. Woods, that he could not pay subcontractors because he had made an investment which "went down the tubes". (Testimony of Dr. and Mrs. Woods). Respondent appeared and testified that the Woods' residence was, in his opinion, more than what they had paid for and therefore he was due excess monies for items over and above what he contracted for. In the areas where there deficiencies, Respondent contends that such items were "service items" which were routine in any newly built house and could have been easily repaired if afforded an opportunity. In this regard, Respondent alluded to several areas where the Woods got more than they bargained for. Specifically, he mentioned that the property had to be regraded and needed a retention area and he refused to pay Mr. Allen, manager of Coral Springs Property Services Incorporated, for the additional grading and paving that was needed. Respondent also contends that the pool was larger than what was contracted for and that the Woods ordered several plants and shrubbery from Tropical Trees which was over and above the amount allotted under the contract. Finally, Respondent contends that the driveway was larger than what was called for in the plans and therefore he would not pay the difference which resulted from his having to build a larger driveway. Respondent, as a certified general contractor, was familiar with the manner in which a change order could be instituted in the contract and no change orders were completed respecting the above-referenced items. (Petitioner's Exhibits 11 and 12) Moreover, the Woods made a change in the contract and a change order was written for a brick wall and a sum of $4,941.00 was added to the contract price. Respondent was aware of this procedure and did not avail himself of the opportunity to effect a change order as provided in the contract. Since Respondent knew, or should have known that the proper procedure to be reimbursed for a charge in the plans, which is over and above what was originally included in the contract, is through the use of a change order, his claims that the Woods received more than they bargained for is without merit.
