The Issue The Issue in this matter is whether ditching activities of the Palm Peach County Mosquito Control Authority were the sole cause of the introduction of mangroves onto the Petitioner's property. If they were, her property is excluded from the dredge and fill jurisdiction of the Department of Environmental Regulation under section 403.817(2), Florida Statutes (1985). The petition for formal proceedings not only disputed the Department's jurisdiction but also alleged the Petitioner was entitled to a dredge and fill permit because the application met statutory and rule requirements. The contention that the application meets the substantial requirements of the statutes and rules was withdrawn by the Petitioner during the final hearing.
Findings Of Fact On January 29, 1985, Petitioner applied for a dredge and fill permit to fill approximately 1.76 acres of property in the city of Ocean Ridge, Florida, immediately adjacent to the Intracoastal Waterway. On August 18, 1986, the Department of Environmental Regulation issued notice of its intent to deny the permit. Petitioner requested a formal hearing on the intention to deny the permit. The Petitioner, Lucinda MacKinley, owns several lots on a barrier island in southern Palm Beach County within the city of Ocean Ridge, lots 12, 13, 14, 15 and 16 in block 2 of the Boynton Beach Park subdivision as recorded in the public records of Palm Beach County, Florida. These 5 170' x 100' lots are bordered on the north by Coconut Lane, on the west by the Intracoastal Waterway, and on the south by residential lots fronting on Ocean Avenue and on the east by other lots. The 1.76 acres are presently vegetated with red and black mangroves. This vegetation would ordinarily subject the property to the dredge and permitting jurisdiction of the Department of Environmental Regulation. The Palm Beach County Mosquito Control Authority began digging ditches on the Petitioner's property in 1954 and has maintained the ditches since that time. Ditches were re-dug as they filled in with material and eroded over time or as the land changed. The ditches were dug by the Authority in low salt marshes and mangrove swamps along the Intracoastal Waterway. By connecting these to the Intracoastal Waterway low lying land can be drained, or tidal action and the introduction of fish and minnows into the area will control mosquitoes. There is now a mosquito control ditch on the southern end of the property which connects to the Intracoastal Waterway in an east-west direction. At high tide, however, water flows over the entire shoreline of the property, inundating the land. When Petitioner originally purchased the property with her husband in 1958, much of the property was dry and the vegetation included Australian pinetrees in the higher areas, especially along the Intracoastal Waterway. The most persuasive evidence of the historic vegetation on the site was the testimony of John G. Labie, which was based upon stereoscopic interpretation of aerial photographs of the property taken from the Florida Department of Transportation Topographic Office. In 1946, there was a bulkhead running along the Intracoastal Waterway which ended to the north of the MacKinley property. The north end of that bulkhead was not tied into the land, however, and there was a wet area between the bulkhead and the land which then provided a foothold for a small stand of young mangroves. There were mosquito control ditches north of the property running east to west. At that time there were Australian pine trees growing on the western border of the property on the Intracoastal Waterway. Seven years later in 1953, mangroves had encroached eastward along the mosquito control ditches north of the MacKinley property. At the northern terminus of the bulkhead, there was a much larger mangrove encroachment than there had been in 1946 and more water behind the bulkhead. The mangroves had also grown south along the bulkhead to the extent that the predominant vegetation on the MacKinley property was mangroves. The earliest ditching on the property shown by records of the Mosquito Control Authority occurred in 1954. There was photographic evidence of mosquito ditching completed some time before a 1956 aerial photograph, because there were ditches but no visible spoil piles from ditching in the photo. The mangroves on the property were 15-18 feet high in 1956. By 1964, the bulkhead along the Intracoastal Waterway had been removed and the shoreline of the Waterway had eroded. That shoreline had a white, sandy beach, indicating that vegetation had not had time to establish itself since the removal of the bulkhead. There was also indication of mosquito ditching having recently been done on the property, but the ditches were not dug in the same places as they had been dug in 1956. Mangroves were still the predominant vegetation. By 1968, the bulkhead which had been removed had not been replaced, and there was further erosion of the property bordering the Intracoastal Waterway. The beach was no longer white and sandy because the vegetation had taken hold. Mangroves on the property remained the predominant vegetation. The mosquito ditching, which began on the property in 1954, was not the sole cause for the introduction of mangroves onto the property. There were mangroves in 1946 in the area, just north of the MacKinley property, which reached the property by 1953. This photographic evidence is consistent with the more general testimony of Allen Steiner, the assistant director of the Palm Beach County Mosquito Control Authority, that while mosquito control ditches can cause the introduction of mangroves onto property by seeds coming up in the ditches, in most areas, the mangrove swamps were there before the Mosquito Control Authority began its ditching activities (Tr. 189). The property is covered with red and black mangroves today, and is subject to tidal inundation by the Intracoastal Waterway to the extent that there are only a few Australian pine trees left on the highest areas of the property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Ms. Lucinda MacKinley for exemption from the dredge and fill permitting requirements of the Department of Environmental Regulation on the grounds that her land has become subject to regulation by the Department solely due to insect control activities DENIED. DONE AND ORDERED this 20th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3619 The following constitute my rulings on the p'oposed findings of the parties are required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findindgs of Fact Submitted by Petitioner Covered in Findings of Fact 1 and 3. Generally covered in Findings of Fact 4 and 12, insofar as they indicate there are mosquito control ditches on the property now. The remainder is rejected as unnecessary. Generally covered in Finding of Fact 4. Rejected as unecessary. The testimony that in 1958 the property was totally vegetated with Australian pinetrees is rejected due to the more persuasive photographic evidence. While there were some Australian pinetrees on the higher points of he property, it was already substantially invaded with mangroves. Rejected because the Palm Beach County Mosquito Control Authority's activities did not introduce mangroves onto the property. They were more likely introduced by the intrusion of mangroves behind the bulkhead to the north of the property. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr Labie concerning he vegetation on the property from 1946, forward, is the more persuasive. The indication that the property was within an area characterized as grasslands in 1927 on a government topographic map is rejected. Those, symbols are meant to characterize much larger areas than Petitioner's 1.7 acres and therefore has little persuasive value. Moreover, the photographic interpretations of Mr. Labie were more persuasive. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary, because at high tide the property is inundated along the entire shoreline, not just because of the mosquito control ditch. Rejected because the testimony of Mr. Labie o vegetation was more persuasive. To the extent necessary, covered in Finding of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr. Labie was more presuasive on the source of the mangoves. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Testimony concerning the bulkhead is covered in Findings of Fact 7-10. Rejected as unnecessary. Covered in Findings of Fact 7-11. Covered in Findings of Fact 7 and 8. Rejected because the mangroves from the north did not arrive at the MacKinley property through mosquito control ditches but through the foothold established because the bulkhead was not tied back to the land, permitting the intrusion of mangroves behind the bulkhead from north to south to the MacKinley property. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as inconsistent with the view of the evioence expressed in the Findings of Fact. Rulings on Proposed Findinos of Fact submitted by Respondent Covered in Findings of Fact 1 and 3. Covered in Finding of Fact 1. Covered in Finding of Fact 4. To the extent necessary, covered in Finding of Fact 3. Rejected as unnecessary. First sentence, rejected as unnecessary. Second sentence, covered in Finding of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 3. Rejected as unnecessary. Rejected as unnecessary. Covered in Findings of Fact 1-9. Rejected as unnecessary because the more likely method of transport was encroachment from the north, although floating seeds from the Boynton Beach inlet construction could have been a source of mangroves. Covered in Findings of Fact 7 and 8. Covered in Findings of Fact 9 and 10. The purpose of mosquito ditching is covered in Finding of Fact 4. The remainder of the proposal is rejected as unnecessary. Covered in Finding of Fact 12. COPIES FURNISHED: Terrell K. Arline, Esquire 325 Clematis Street Suite B West Palm Beach, Florida 33401 Karen A. Brodeen, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel E. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioners in the amount of $999.40 for limes grown by Petitioners and picked and sold by Respondent southeast?
Findings Of Fact Petitioners Donald R. Fox, Jr., and Delores W. Fox d/b/a Don Fox Groves are growers of limes in Homestead, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "southeast") goes to individual groves and picks the limes, then brings them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the limes pays Southeast after receipt of the limes, southeast ascertains what prices were paid for the limes and then calculates its costs and pays the grower the difference. Between the weeks ending March 25 and August 5, 1988, Southeast picked 337.2 bushels of limes grown by Petitioners. There is no dispute as to the number of bushels of Petitioners' limes picked by Southeast. Petitioners dispute Southeast's calculations as to the price which Southeast received for the limes, the percentage of the limes picked by Southeast which "graded out' for sale, and the amount of picking and inspection fees charged by Southeast. No competent, substantial evidence was offered in support of the prices Petitioners claim Southeast received (or should have received) for the limes as to six of the seven separate pickings in question in this cause. In four instances, Southeast paid Petitioners a higher price per bushel than they claim. Petitioners claim that 100% of each picking was saleable citrus. Southeast's records reflect that Petitioners were given credit for 100% of their limes on one of the seven pickings. For the remainder of the pickings, however, Southeast gave them credit for as little as 33.1% of the bushels picked and as high as 89.4% of the bushels picked. No competent, substantial evidence was offered to justify Petitioners' selection of 100% for all seven pickings. The 100% figure selected by Petitioners allows for no differences in the amount of marketable limes from each picking, and there is no evidence to support the proposition that no matter when during the season the limes are picked exactly 100% of them will be marketable. Petitioners agree that Southeast is entitled to charge them picking and inspection fees to be deducted by Southeast from the sale price of the limes before crediting petitioners with the balance of the sale price. Petitioners further agree that the picking and inspection fees for the pickings involved in this cause should be deducted from the monies they claim Southeast still owes them. No competent, substantial evidence was offered by Petitioners as to the amount of picking and inspection fees Petitioners claim to be correct. The picking and inspection fees charged to Petitioners by Southeast are, therefore, the correct amounts as to six of the seven pickings. As to lime pool #829 for the week ending July 18, 1988, Petitioners claim a sales price of $2.16 for each of the 86.6 bushels picked by Southeast that week. They also claim that 100% of those limes were marketable. Southeast agrees it picked 86.6 bushels of Petitioners' limes that week. However, Southeast has no records regarding the price for which it sold those limes, the percentage of those limes which were marketable, and the amount of picking and inspection fees paid by Southeast for Petitioners' limes in lime pool #829. Accordingly, Petitioners are entitled to receive additional payment from Southeast in the amount of $187.06, which represents a sale price of $2.16 for each of the 86.6 bushels of limes picked and then sold by Southeast. No deductions for inferior quality limes and no deductions for picking and inspection fees are proper since Southeast cannot prove its entitlement to make any deductions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioners Donald R. Fox, Jr., and Delores W. Fox d/b/a Don Fox Groves in the amount of $187.06 and that such monies should be paid to them within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida: this 31 day of January, 1990. LINDA M. RIGOT 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 31 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Donald R. Fox Delores W. Fox 26101 Southwest 207th Avenue Homestead, Florida 33031 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building -Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire 1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The issue is whether Petitioner was subjected to a hostile work environment in violation of Subsection 760.10(1), Florida Statutes (2005).1
Findings Of Fact Petitioner is a female who was employed by Gulf Breeze as a sales representative from 2003 until her employment was terminated on February 9, 2006. Petitioner was 63 years old when she was hired to work as a sales representative with Gulf Breeze. Petitioner was an experienced and successful sales representative. In 2004, Petitioner received a "million dollar ring" in recognition of her outstanding sales record with Gulf Breeze. Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10), Florida Statutes. Gulf Breeze is a licensed real estate broker that is in the business of selling real estate interests in timeshare resorts. Gulf Breeze conducts this business at an off-site office located at 4300 Duhme Road, Madeira Beach, Florida. The Berkeley Group, Inc., is the parent company of Gulf Breeze and its headquarters is located in Ft. Lauderdale, Florida. Respondent is an "employer" within the meaning of Subsection 760.02(7), Florida Statutes. The Berkley Group purchased Bay and Beach Resort located in Indian Shores as the start-up property for its timeshare sales operation in 2003. That location was eventually replaced by the stand-alone sales center in the Madeira Beach location. In 2003, when Petitioner was initially employed by Gulf Breeze, she was hired by Dennis Bill, the project manager or director of sales for Gulf Breeze. Prior to being employed by Gulf Breeze, Petitioner had worked with Mr. Bill for 15 or 20 years in the timeshare sales business. At Gulf Breeze, the job of the project manager is: to oversee and supervise the sales operation and its staff; to ensure that the sales staff members are trained and are successfully performing their jobs; and (3) to motivate the sales force. From August or September 2005 through February 2006, Dale Wagner was project manager for Gulf Breeze. As project manager, Mr. Wagner supervised the eight to ten sales representatives in the Gulf Breeze office. Of that number, two-thirds were over 40 years old. During the time Mr. Wagner was project manager, there were noticeable changes in the work environment at the Gulf Breeze office. Those changes included: (1) the excessive use of profanity in the office; (2) the presence and/or consumption of alcoholic drinks in the office or during the workday; (3) the presence of marijuana in the office; and (4) the berating of employees by derogatory name-calling. While he was project manager, Mr. Wagner and a sales manager, Michael Wiseman, used profanity repeatedly and almost everyday in the Gulf Breeze office, including during sales or staff meetings. Mr. Wagner and Mr. Wiseman used the terms "goddamn" and "f**k," respectively, as part of their general vocabulary. Petitioner sometimes observed that during the workday, it appeared that Mr. Wagner, while project manager, had been consuming some type of alcoholic drink(s). Petitioner and another sales representative sometimes smelled alcohol on Mr. Wagner's breath when he came to the table to work with them on transactions. Mr. Wagner acknowledged that he occasionally had a drink or two at lunch, but denied that he ever consumed alcohol in the office. Petitioner had reason to believe that marijuana was being brought to the Gulf Breeze office by one or more employees and being given or sold to some other employees. Petitioner was very concerned and disturbed by the unprofessional environment at the Gulf Breeze office. Petitioner was especially concerned about Mr. Wagner and Mr. Wiseman using profanity in the office and about her perception that alcohol and/or drugs (marijuana) were being brought into the office by employees. Petitioner reported her concerns to Pam Montanez, the human resources representative at the Gulf Breeze office, at least four times, but did not submit any written complaints to the local or corporate office. Petitioner did not specify when she reported her complaints to Ms. Montanez. There is no evidence that Ms. Montanez took action to alleviate the conduct that Petitioner reported to her. Consequently, the behaviors and other activities continued to occur in the Gulf Breeze office. Three female sales representations at Gulf Breeze during the time Mr. Wagner was project manager, including Petitioner, viewed his conduct toward women as demeaning. According to Petitioner, when Mr. Wager became project manager, there was "hell to pay every time we went to work." While he was project manager, Mr. Wagner called Petitioner derogatory names and made inappropriate comments to her in the Gulf Breeze office. For example, Mr. Wagner told Petitioner, "Go take your [hormone] medicine and sit down."2 He also told Petitioner that she was too old to be working and needed to retire. Sometimes when Mr. Wagner walked by Petitioner, he called her an "old hag," "whore," and "slut." When Mr. Wagner made these comments to Petitioner and called her names, other employees were present and heard him. Once when Mr. Wagner and several other male employees were in an office with the door cracked, Michael Booth, a salesman for Gulf Breeze, overheard them discussing how they could get rid of that "old hag" or "old bitch" or "old woman." Mr. Booth believed that the men in the office were referring to Petitioner. When this conversation took place, Mr. Wagner was not the project manager and had no supervisory responsibility for Petitioner. Also, there is no indication that Petitioner heard this conversation. Prior to being employed by Gulf Breeze, Petitioner had previously worked with Mr. Wagner and had not experienced any problems with him. However, during the time he was project manager, Mr. Wagner's behavior toward Petitioner changed. Although Petitioner did not know the reason for that change, she testified that the negative changes in Mr. Wagner's behavior at work were caused by his alcohol consumption, not to her membership in a protected class. Mr. Wagner disputes Petitioner's statement that his conduct at work was affected by his consumption of alcohol. Inez Verhagen, a sales representative, described Mr. Wagner's management style as "management by intimidation." This description is based on the manner in which Mr. Wagner regularly communicated with Ms. Verhagen. While project manager, Mr. Wagner yelled at Ms. Verhagen everyday and, sometimes, did so in the presence of clients. On one occasion, Mr. Wagner once came to the table where Ms. Verhagen was meeting with two clients and began yelling and screaming at her and then walked away. Given the lapse in time, Ms. Verhagen could not recall the reason Mr. Wagner was yelling at her. After Mr. Wagner left the table, one of the clients at the table, Beverly, asked Ms. Verhagen, "Does he always treat you this way?" Ms. Verhagen answered, "Yes, ma'am, he does." The client then asked Ms. Verhagen, "How do you stand this?" "You need to get out of here before you have a bleeding ulcer." While employed at Gulf Breeze, Ms. Verhagen complained to Ms. Montanez about Mr. Wagner's repeated verbal abuse toward her. Ms. Montanez never followed up with Ms. Verhagen, and it appears that nothing was ever done to address the complaints. Moreover, throughout Ms. Verhagen's employment, Mr. Wagner's conduct did not change. During the time Mr. Wagner was project manager, Ms. Verhagen never heard him yell at any of the male sales representatives. Thus, she believed that male employees at Gulf Breeze were excluded from and not subjected to Mr. Wagner's intimidating management style. As a result of Mr. Wagner's behavior toward her, Ms. Verhagen voluntarily left her job at Gulf Breeze. Michelle Ferrara was a sales representative at Gulf Breeze in the Fall of 2005, when Mr. Wagner became project manager. According to Ms. Ferrara, after Mr. Wagner assumed that position, the work environment at Gulf Breeze was not "pleasant" and "a lot of constant degrading comments" were made in the workplace. Ms. Ferrara also believed that Mr. Wagner sometime treated her unfairly and did not implement policies consistently. At Gulf Breeze, new sales representatives sometimes worked with managers on sales presentations. When these presentations resulted in a sale, the practice at Gulf Breeze was for the commission to be shared between the manager and the new sales representative. Ms. Ferrara participated in such a presentation, but was told by Mr. Wagner, then project manager, that she would not receive any part of the commission because the male manager with whom she had worked believed that she [Ms. Ferrara] did not deserve it. While he was project manager, Mr. Wagner yelled at, embarrassed, and berated Ms. Ferrara many times. In one instance, Mr. Wagner called Ms. Ferrara into his office. At the time, there were two male employees sitting in Mr. Wagner's office. Ms. Ferrara did not testify as to the substance of Mr. Wagner's comments to her. Nonetheless, Ms. Ferrara recalled clearly that Mr. Wagner "just tore into [her]" and "embarrassed and berated" her in the presence of the two male employees. A new employee at Gulf Breeze approached Ms. Ferrara and asked if Gulf Breeze provided formal training. Ms. Ferrera believed that formal training involved structure and training in a classroom setting at designated and extended time frames (i.e., most of the day). Since no such training was provided at Gulf Breeze, Ms. Ferrara told the new employee that there was no formal training and that new employees simply learned on the job. Apparently, Mr. Wagner overheard and disagreed with Ms. Ferrara's response to the new employee. To express his disagreement with Ms. Ferrara's response, Mr. Wagner "grabbed" Ms. Ferrara and "just started screaming" at her. In another incident, Ms. Ferrara arrived at work about 8:13 a.m., but did not immediately go into the Gulf Breeze office. Instead, she stayed in her car "to do something." (Employees were required to be in the office by 8:15 a.m.). It is unknown how long Mr. Ferrara stayed in her car, but when she got out of her car and went into the Gulf Breeze office, a male employee entered the building just before she did. As the male employee signed in, Ms. Ferrara was a few feet behind him, waiting to sign in for work. Mr. Wagner approached Ms. Ferrara and asked her, "What [were] you doing?" Mr. Wagner then told Ms. Ferrara, "You shouldn't be in your car. You're supposed to be in here." Although Ms. Ferrara and the male employee came into the office about the same time, Mr. Wagner said nothing to the male employee. Ms. Ferrara believed it was inappropriate for Mr. Wagner to make the foregoing comments to her because there were customers in the immediate vicinity. She also believed that it was unfair to make any statements to her and not to the male employee since they both came into the office about the same time. Mr. Wagner, while project manager, would comment that "she [Ms. Ferrara] is in la-la land." Ms. Ferrara never reported any of the foregoing incidents to Ms. Montanez or to anyone in corporate headquarters. However, as a result of Mr. Wagner's conduct, Ms. Ferrara voluntarily left her job at Gulf Breeze. Mr. Wagner also made offensive comments to Mr. Booth, who was employed as a sales representative at Gulf Breeze from about March 2005 through January 2006. Initially, Mr. Bill was the project manager and Mr. Booth's supervisor. In August or September 2005 until January 2006, Mr. Wagner replaced Mr. Bill as project manager and was Mr. Booth's supervisor. Throughout Mr. Booth's employment at Gulf Breeze, including the period when Mr. Wagner was project manager, Mr. Wagner made inappropriate comments to Mr. Booth. For example, Mr. Wagner would make comments about Mr. Booth's sexuality and would refer to him (Booth) as a "fag" or "queer." Mr. Wagner would call Mr. Booth those names when he walked past him (Booth) in the office. Mr. Wagner also made comments such as "I'm not picking on you because you're a fag" and "I don't have anything against homos."3 Mr. Booth made several complaints to Ms. Montanez, some of which concerned Mr. Wagner's inappropriate conduct toward him (Mr. Booth) and toward Petitioner. In response to at least one of Mr. Booth's complaints about Mr. Wagner, Ms. Montanez told him that she would call someone in Ft. Lauderdale (the corporate office), that "we're going to handle it," and that she would then get back with him. Later, Mr. Montanez reported to Mr. Booth that she had contacted the corporate office and was told that the local office should handle the matter and "to keep the corporate office out of it." Mr. Wagner testified that the sale of timeshare interests is a difficult and stressful job. Sales representatives in the business must convince prospective customers to purchase a product that they do not need (i.e., luxury item). Gulf Breeze incurs an upfront expense before a prospective customer walks in the door. Thus, the pressure on the sales representatives is increased by the fact that only one out of eight to one out 12 sales presentations result in a sale. The project manager must ensure that sales representatives are trained, motivated, and performing their jobs. Mr. Wagner does not deny that, as project manager, he sometimes yelled at sales representatives. According to Mr. Wagner, he "raise[d] his voice" when talking to employees to get them motivated and to "try to get them in the right direction." According to Mr. Wagner, every sales representative at Gulf Breeze receives training in the proper methods for conducting sales. Gulf Breeze expects its sales representatives to be courteous to the customers and to refrain from twisting the customers' arms in order to make a sale. Florida law allows a purchaser of a timeshare interest ten days to rescind the purchase. Sales representatives at Gulf Breeze are told that they are not to "pitch rescission" when making a sales presentation. The term "pitch rescission" refers to a technique in which the sales representative induces the customer to purchase a timeshare interest by using the cancellation as a sales tool. The project manager is authorized to impose disciplinary action against a sales representative who violates the prohibition against "pitching rescission," or any other company procedure. Gulf Breeze has no disciplinary guidelines and the project manager has the discretion to impose whatever disciplinary action he believes is appropriate. On or about February 8, 2006, Mr. Wiseman told Mr. Wagner that he had observed Petitioner pitching rescission to a customer in order to induce a purchase. At the time, Petitioner's cancellation rate for purchases was 80 percent, while the average cancellation rate for other sales representatives was between 18 percent and 22 percent. In light of the foregoing, Mr. Wagner decided to meet with Petitioner. When Petitioner arrived at work on the morning of February 9, 2006, Mr. Wagner told her to come into his office to meet with him and two sales managers, Larry VonStein and Mr. Wiseman. Mr. Wagner did not tell Petitioner the reason he wanted to meet with her. Moreover, there is no evidence that Petitioner knew the reason Mr. Wagner wanted her to come into his office. Mr. Wagner wanted the two sales managers in the meeting with Petitioner so that they were "aware of what was happening" and to ensure that "everyone was on the same page." Petitioner told Mr. Wagner that she did not want to meet alone with three men. Mr. Wagner then ordered Petitioner to go downstairs and sit in her car until Ms. Montanez got to the office. He indicated that when Ms. Montanez arrived, they would go to her office and talk. It is unclear why Mr. Wagner required Petitioner to wait in her car, rather than in the Gulf Breeze office. Petitioner did not leave the building and go to her car as Mr. Wagner had ordered. Petitioner got a chair and sat in the back of the room where a regular sales meeting was being held and told Mr. Wagner that she was not leaving. At some point, Petitioner apparently became upset and/or agitated, and according to Mr. Wagner, "threw a fit" and was screaming and disrupting the sales meeting. This episode lasted for about ten minutes. After Petitioner refused to leave, the situation escalated when Mr. Wagner threatened to call the police, presumably to have Petitioner removed from the Gulf Breeze office. Petitioner responded by telling Mr. Wagner that he could call the police, but she was not leaving. Mr. Wagner contacted Ms. Montanez on her cell phone and asked her to come in early to help him deal with Petitioner. Before the call was completed, Petitioner also spoke with Ms. Montanez. After talking with Ms. Montanez, the situation apparently calmed down, and Petitioner went downstairs and waited for Ms. Montanez to arrive at the office. After Ms. Montanez arrived at the Gulf Breeze office, she and Petitioner went upstairs to Ms. Montanez' office, where they were later joined by Mr. Wagner. The issue that Mr. Wagner had initially planned to discuss with Petitioner, the charge that she had "pitched rescission during a presentation," was never addressed. Instead, during the meeting, Mr. Wagner terminated Petitioner's employment for insubordination.4 Mr. Wagner initially intended to talk to Petitioner about the charge that she had pitched rescission, but did not plan to terminate her for issues related to that charge. Gulf Breeze has an anti-discrimination policy which expressly prohibits discrimination based on race, color, religion, sex, age, handicap, national origin, marital status or veteran status. The anti-discrimination policy is included in the employee manual which is disseminated to employees who must acknowledge, in writing, receipt of the policy. Gulf Breeze also provides a separate statement to its employees notifying them, again, of the company's anti-discrimination policy and reporting procedures. Gulf Breeze's anti-discrimination policy provides that an employee should report any problems or allegations of discrimination and harassment to the employee's direct supervisor, the on-site human resource representative, or the corporate human resource director. The employee may also notify the company of alleged discrimination by anonymously completing a form provided in or on the back of the Employee Handbook. Petitioner received the Employee Handbook and the company's workplace harassment policy and signed a document acknowledging receipt of the Employee Handbook and Gulf Breeze's anti-discrimination policy. Vickie Dockery-Ruiz is the corporate human resource director, has held that position since 1999, and works out of the corporate office in Ft. Lauderdale, Florida. To facilitate employee communication and resolution of disputes, each resort has its own on-site human resources representative (human resources manager). At all times relevant to this proceeding, Ms. Montanez was the human resources manager for Gulf Breeze. Prior thereto, Ms. Montanez served in that same position at the Bay and Beach location. Petitioner was familiar with the Gulf Breeze anti-discrimination policy and knew how to file a charge of discrimination and/or harassment. In fact, Petitioner had filed a written complaint on or about September 19, 2005, against a co-worker, Joel Zackheim. Petitioner sent the complaint to Ms. Dockery-Ruiz at the corporate office and to Ms. Montanez at the Gulf Breeze office. The complaint arose out of an incident which occurred during a staff or sales meeting during which Mr. Zackheim intentionally pulled a chair from under Petitioner, resulting in her falling on the floor. In her written complaint, Petitioner recounted the incident and noted that Mr. Zackheim had pulled a chair over her leg and in a very loud voice, called her a "damn bitch." Petitioner reported that as a result of Mr. Zackheim's actions, she sustained an injury to her leg which was diagnosed as a contusion and required medical care.5 Petitioner's September 19, 2005, complaint was promptly investigated, and Ms. Montanez issued a written response on or about September 29, 2005. The response noted that Petitioner's diagnosis had been confirmed as had Mr. Zackheim's actions. As a result of his actions, Mr. Zackheim was put on unpaid leave from October 2, 2005, through October 9, 2003, and warned that another incident such as this could be grounds for termination. Mr. Zackheim was also advised to be respectful to fellow employees and to maintain a positive attitude in the working environment. Petitioner's September 19, 2005, complaint did not include any allegations of harassment or other wrong doing by Mr. Wagner. On or about February 9, 2006, after she was terminated, Petitioner called Ms. Dockery-Ruiz and reported actions which she believed to constitute sexual harassment that had occurred while she (Petitioner) was employed at Gulf Breeze. Ms. Dockery-Ruiz requested that Petitioner write a letter detailing her specific allegations. Petitioner complied with that request and made allegations of sexual harassment. Although Petitioner had been terminated, the president of the company investigated the allegations of sexual harassment at Gulf Breeze. The investigation concluded that there was no sexual harassment. Except for one incident that involved a Gulf Breeze employee, Mr. Zackheim, Ms. Dockery-Ruiz was never notified of any of the alleged activities Petitioner discussed after [Petitioner's] termination. Soon after Mr. Wagner terminated Petitioner's employment with Gulf Breeze, his employment with the company also ended.6 Mr. Wagner was re-employed by the parent company and is at working at a resort in Orlando, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Commission on Human Relations dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of January, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2009.
The Issue The issues for determination in this case are whether Respondent is indebted to Petitioner for the purchase of agricultural products, and whether such indebtedness constitutes a breach of the conditions of the bond posted by the Surety for which payment should issue.
Findings Of Fact Petitioner, SARASOTA GROWERS INCORPORATED (SARASOTA GROWERS), is a producer of agricultural products, primarily nursery ornamental plants, in Sarasota County, Florida. W.R. Walden is president of SARASOTA GROWERS. Respondent, TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING (GULF BREEZE), is a licensed dealer in agricultural products, holding License Number 10091, issued by the Department of Agriculture and Consumer Services. At all material times, David Joy was the manager of GULF BREEZE. Co-Respondent and Surety, FRONTIER INSURANCE COMPANY OF NEW YORK (FRONTIER), posted Bond Number 5004806 in the amount of $9,999.00 in support of Respondent's license as a dealer in agricultural products. The inception date of the bond was April 30, 1996, and the expiration date of the bond was April 30, 1997. In early 1997, Respondent GULF BREEZE through its manager, David Joy, contacted SARASOTA GROWERS and ordered the delivery of certain agricultural products. By usual business practices, payment was demanded upon delivery. On February 10, 1997, SARASOTA GROWERS delivered agricultural products to GULF BREEZE. The invoiced value of the agricultural products delivered to GULF BREEZE was $2,255.00. On February 12, 1997, SARASOTA GROWERS delivered agricultural products valued at $302.50 to GULF BREEZE. On March 7, 1997, SARASOTA GROWERS delivered agricultural products valued at $18.00 to GULF BREEZE GULF BREEZE did not pay for the agricultural products at the time of delivery by SARASOTA GROWERS. At each of these deliveries, SARASOTA GROWERS was informed by an employee of GULF BREEZE that the manager David Joy, was not present, but that payment by check would be mailed. After the delivery of March 7, 1997, SARASOTA GROWERS ceased making deliveries to GULF BREEZE. After several demands for payment by SARASOTA GROWERS, GULF BREEZE remitted a partial payment of $1,000.00 for the agricultural products delivered by SARASOTA GROWERS. GULF BREEZE failed to properly make payment for agricultural products delivered by SARASOTA GROWERS and is indebted to SARASOTA GROWERS in the amount of $1,575.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered directing Respondent TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING, to pay Petitioner SARASOTA GROWERS INCORPORATED $1,575.50 for agricultural products sold to Respondent, and in the event Respondent fails to make such payment, within fifteen (15) days of that order, that the Surety be required to pay pursuant to the bond posted. DONE AND ENTERED this 14th day of November, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399 W. R. Walden, President Sarasota Growers, Incorporated 1001 Sinclair Drive Sarasota, Florida 34240 Toulia Xioutas, Incorporated Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA10-GM-115 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished as indicated to each of the persons listed below on this DW say of , 2010. aula Ford Agency Clerk By U.S. Mail Amy Taylor Petrick, Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, FL 33401 Tel.: (561) 355-2529 Fax.: (561) 255-4324 Email: apetrick@co.palm-beach.fl.us William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A. 215 S. Monroe Street, Suite 618 Tallahassee, FL 32301 Phone: (850) 521-1980 Facsimile: (850) 576-0902 Email: whyde@gunster.com James M. Crowley, Esquire Gunster, Yoakley & Stewart, P.A. 450 E. Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 Phone: (954) 713-6416 Facsimile: (954) 523-1722 Email: jcrowley@gunster.com FINAL ORDER NO. DCA10-GM-115 Claudia McKenna, City Attorney City of West Palm Beach 401 Clematis Street West Palm Beach, FL 33401 Phone: (561) 882-1350 Facsimile: (561) 822-1373 Email: cmckenna@wpb.org Keith W. Davis, Esquire Trela White, Esquire Attorney for Village of Royal Palm Beach Corbett & White, P.A. 1111 Hypoluxo Road, Suite 207 Lantana, FL 33462 Phone: (561) 586-7116 Facsimile: (561) 586-9611 Email: keith@corbettandwhite.com; trela@corbettandwhite.com By Hand Delivery Richard E. Shine Assistant General Counsel Department of Community Affairs By Interoffice Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675
Findings Of Fact The Respondents, the Theoharises, own the property in question, which is located on the corner of Northeast 26th Street and Federal Highway in Ft. Lauderdale, which property is contiguous to the North Fork of the Middle River, a navigable waterbody within the State of Florida. The subject property is more particularly described as lying within Section 25, Township 49 South, Range 42 East, Broward County, Florida. The site is connected to and is a part of the North Fork of the Middle River with which it regularly exchanges tidal waters. The dominant plant species was white mangroves, a submerged species for purposes of Section 17- 4.02(17), Florida Administrative Code. The North Fork of the Middle River is part of a marine estuary system and as such is important as a spawning or nursery ground for commercially important fish and other marine life in their early life stages, as well as for bluefish, snook, tarpon, flounder and other commercially or recreationally important species. On August 24, 1979 the Respondent and his agents, at the request of the Theoharises, the owners of the property, brought a backhoe on the site and commenced clearing trees, shrubs, and other vegetation from the subject property, including the scooping out or uprooting of a stand of mature white mangroves growing along the river on the submerged portion of the property. This activity was observed by a landowner directly across the river who contacted the Department, who then sent its representative, Mr. Wittkamp, to inspect the work in progress on the Theoharises' site. Mr. Wittkamp identified himself to Mr. Bruce, the Respondent, as an inspector for the Department and informed him that, inasmuch as he did not have a permit authorizing the removal of the mangrove trees and the associated "dredging and filling" operation, he would have to discontinue the work immediately. The Respondent, however, proceeded to continue the removal of the mangroves and clearing the other vegetation, and the grading of the property, all of which was for the purpose of extending a parking lot for the Owner's restaurant. He ultimately completed the job in spite of the warning by the Department's inspector. No permit authorizing this activity was ever obtained. Upon completion of the job the Respondent and his agents had, without a permit, destroyed and removed 2,000 square feet of submerged lands constituting the total destruction of the stand of mangrove trees, and also pushed a quantity of soil, or fill, as well as trash and debris, into the Middle River below the mean high water line. An inspector for the City of Ft. Lauderdale, Mr. Robert Schimmel, visited the site in question prior to the destruction of the mangrove trees and established at the hearing that the trunk diameters of the mangroves before their removal was an aggregate of 98 caliper inches. Based on those measurements, Mr. Reis, an expert witness for the Department, established that the canopy cover provided by the destroyed mangrove trees was approximately 2,000 square feet, or 0.046 acres. If monetary damages are sought to be based on lost detrital value, as the Department seeks to do here, then that productivity loss represented by the removed mangroves can be more accurately measured by determination of the size of the canopy cover rather than other methods. In order to verify his calculation of the extent of the lost mangrove canopy cover Mr. Reis measured other mangrove canopies with similar trunk dimensions. That witness then took the 2,000 square foot dimension and calculated the value of the destroyed mangroves with reference to a scientific study, "The Tree Nobody Liked" by R. Gore published in the May, 1977 issue of National Geographic which ascribed a value of $4,000 per acre per year for South Florida mangroves. Other methods of economic valuation of mangrove stands were shown by reference to generally accepted authoritative scientific studies, to be as high as $84,000 per acre per year, and indeed, in 1974 Nicholas and Blowers, consultants to Deltona Corporation, published The Socioeconomic Impact of the Marco Island Development and set fourth values for mangrove trees per acre ranging from $34,000 to $100,000 per acre per year. So too, in 1974, Heald, Odum and Tabb published Mangroves in the Estuarine Food Chain, which cited average values for South Florida mangrove productivity equivalent to approximately $25,800 per acre per year. Thus the Petitioner used the lowest generally accepted method and figures for arriving at the value of the mangrove trees and there was no contradiction of the showing by the Department's expert witness that an acre of mangroves is actually worth considerably more than the figures used by the Department in calculating the alleged damages in this case. The unrefuted means of calculating the pertinent environmental loss is a conservative one especially because it only includes loss of the detrital value of the removed mangrove trees. Detrital value is the value of the accumulation of leaves, branches and seeds in the estuary in which the mangroves grow and which serves as an essential element in the estuarine food chain. The vegetable matter dropping in the water from the trees is decomposed by organisms such as algae, fungi and bacteria. The leaf particles dropped by the trees are coated with protein in the form of these microorganisms and then become available as a food source to zooplankton, which are in turn harvested by small fish and intermediate fish, which serve as food for larger species of fish which may be commercially valuable. The reduction in the mangrove population thus weakens the basis of the estuarine food chain and thus reduces the size of the aquatic community or species populations which can be supported by such a food source. Mangroves are additionally valuable because they serve a water cleansing function in that they filter out contaminants in the water in which they grow. They are particularly beneficial in controlling pollution from upland runoff. Nutrient uptake and assimilation is particularly important to the geographical area involved in this case because the North Fork of the Middle River is burdened with nutrient discharge from sewage treatment plants, as well as stormwater drainage. Thus the maintenance of healthy mangrove populations along the waterway is directly related to maintenance and restoration of good water quality and the prevention of eutrophication. In addition to the above benefits, mangroves serve as a shoreline stabilizer in that they prevent the erosion by wave action against the shore by storms or boat wakes, and provide shelter, food and breeding areas for fish and other forms of marine life. Mangrove wetlands aid in flood prevention, conservation of water during drought periods, produce oxygen and sequester heavy metals and other poisonous substances in the anaerobic muds they produce. Additionally, they serve as nesting and roosting habitat for birds and as a place of shelter for many terrestrial animals. Mangrove wetlands also, by serving as nursery areas for the rearing of fish and marine life, constitute an important basis of support for the area's sport fishing and commercial fishing industries. The Petitioner's assessment of the damages involved in this case from the destruction of the trees and shoreline area did not take into account any potential damage to the fishing industry or any damage attributable to the resultant loss of shoreline stabilization, however. Elimination of mangroves thus has an adverse effect on the water quality and interferes with and potentially injures the conservation and propagation of fish and other marine life, as well as terrestrial wildlife and other natural resources. The Petitioner, in establishing damages by the lowest proven method of evaluation, demonstrated a value of an acre of such mangrove trees per year of $4,000. Then, given that a mangrove seedling takes approximately 15 years to reach maturity, this annual loss of productivity should be multiplied by 15 years, times the total of 2,000 square feet of mangrove canopy destroyed or .046 acres. This unrefuted means of quantifying environmental injury caused by the acts of the Respondent establishes damages to be in the amount of $2,760. Various items of costs involved in tracing, investigating and preparing for the prosecution of this case were alleged by the Petitioner, including cost for preparation and attendance of the various expert witnesses. All of the witnesses were paid state employees, however, and although they doubtless spent a great number of hours preparing for this proceeding, the evidence does not establish the specific amount of costs and expenses for investigation, preparation and attendance of witnesses separately attributable to this case, as opposed to those incurred in the course of Petitioner's employees normal duties. Moreover, although the Petitioner entered into a settlement with the Respondents, the Theoharises, for a portion of the damages to the pollution violation here involved, there was no showing whether or not the $1,000 paid by the Theoharises to the Petitioner's warning notices and voluntarily agreed to replant mangrove seedlings in response to the Department's Order for Corrective Action and to pay $1,000 of the Department's estimate of damages. This agreement was signed by the Theoharises and took the form of a consent order (See Exhibit 1). The instant Respondent, Charlie Bruce, neither personally nor on behalf of his corporation, entered into the settlement negotiations involving the Theoharises.
Recommendation Having considered the competent, substantial evidence in the record, as well as the pleadings and arguments of counsel, it is recommended that the Respondent Charlie Bruce d/b/a Charlie Bruce and Sons Backhoe Service, Inc. pay damages for the above violations in the amount of $1,760. Said sum represents the total environmental damages proven to be caused by that Respondent, after deduction of the $1,000 damages already paid by the Respondents, the Theoharises and the alleged figures for costs and expenses which were not proven to be entirely attributable to this Respondent. The sum of $1,760 shall be payable to the State of Florida Pollution Recovery Fund c/o the Department of Environmental Regulation, Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida, 32301 within ninety (90) days from the date of entry of a final order herein. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of December, 1980. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1980.
The Issue Whether Respondent is indebted to Petitioner for Florida- grown citrus products sold to Respondent.
Findings Of Fact Petitioner and Respondent are Florida-licensed citrus fruit dealers operating within the Department's regulatory jurisdiction. Great American was the surety for J and G Citrus' fruit dealer's license for the 2006-2007 citrus shipping season. J and G Citrus is Petitioner's customer. Petitioner ships fruit on behalf of J and G Citrus under their name for a service charge and fee for fruit, the cost of packing, and shipping. Petitioner and Respondent entered a written contract on November 12, 2004, for such services. Cushman's replacements policy provides that a customer should notify Cushman of any problem and the company will refund the monies for the order or replace the package. Cushman guarantees to "honor all replacement requests in a timely manner at no cost to you." J and G Citrus utilized the policy during its contract with Cushman. Cushman delivered the following fruit orders for J and G Citrus from December 22, 2006, to February 16, 2007: 292 navel fruit trays at $3.35 a tray; 168 grapefruit trays at $3.35 a tray; 87 honeybells trays at $6.88 a tray; and 29 tangerine trays for $6.88 at tray. The costs for the fruit shipped totaled $2,339.00. J and G Citrus was invoiced this amount. Accordingly, Respondent was obligated to pay Petitioner the total sum for the fruit. After Cushman Fruit invoiced J and G Citrus for the outstanding balance, no payment was received. On March 28, 2007, Cushman informed J and G Citrus of its bill and told Respondent that "You need to get current." J and G Citrus responded on the same day that it would provide a payment schedule by Monday. On April 23, 2007, J and G Citrus confirmed by email that they were going to start paying and would provide a payment. On May 7, 2007, Cushman requested the payment schedule from J and G Citrus again and informed the company, "I need a response from you today." Cushman never heard further from Respondent regarding payment. To date, the invoices are unpaid and the monies are owed to Cushman. Petitioner performed all of its duties under the contract with J and G Citrus and Respondent failed to pay for the services. J and G Citrus is, therefore, indebted to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered requiring Respondent pay to Petitioner the sum of $2,339.00 DONE AND ENTERED this 11th day of February, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2009. COPIES FURNISHED: Elizabeth Alvarez Cushman Fruit Company, Inc. 3325 Forest Hill Boulevard West Palm Beach, Florida 33406 Rob Brehm Great American Insurance Company Post Office Box 2119 Cincinnati, Ohio 45201 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Brian D. Jerome Carla Dupleich J & G Citrus Groves 5781 Seminole Way Fort Lauderdale, Florida 33314 Honorable Charles Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
The Issue Whether Sunny Fresh Citrus Export and Sales, Co., LLC, is liable to Petitioner in the amount of $44,032.00 for delivery of fruit which remains unpaid.
Findings Of Fact Petitioner, DP Partners, Ltd. (Partners), is a Florida Limited Partnership located in Lake Placid, Florida, engaged in the business of citrus production. Daniel H. Phypers and Danielle Phypers Daum, brother and sister, and their father Drew Phypers, are limited partners in the business. Respondent, Sunny Fresh Citrus Export and Sales Co., LLC, (the LLC) is a Florida Limited Liability Company headquartered in Vero Beach, Florida, engaged in the business of exporting citrus for retail sale. The LLC was organized and registered with the State of Florida Division of Corporations on November 3, 2011. The members of the LLC are Kelly Marinaro and Jean Marinaro, husband and wife. Kelly Marinaro (Marinaro) formerly conducted business in the name of Sunny Fresh Citrus Export and Sales Co. (the DBA), a fictitious-name entity registered with the Florida Department of State, Division of Corporations, on October 23, 2007. The fictitious-name entity registration expired on December 31, 2012. Marinaro suffered a massive heart attack in November 2011 and was incapacitated. He did not return to work until the Spring of 2013. On November 4, 2011, after suffering the heart attack, and one day after organizing and registering the LLC, Marinaro conveyed durable power of attorney to Joseph Paladin (Paladin) as his Agent. Among the authority granted to Paladin, was the following: 2. To enter into binding contracts on my behalf and to sign, endorse and execute any written agreement and document necessary to enter into such contract and/or agreement, including but not limited to . . . contracts, covenants . . . and other debts and obligations and such other instruments in writing of whatever kind and nature as may be. * * * 9. To open, maintain and/or close bank accounts, including, but not limited to, checking accounts . . . to conduct business with any banking or financial institution with respect to any of my accounts, including, but not limited to, making deposits and withdrawals, negotiating or endorsing any checks . . . payable to me by any person, firm, corporation or political entity[.] * * * 12. To maintain and operate any business that I currently own or have an interest in or may own or have an interest in, in the future. In Marinaro’s absence, Paladin conducted the usual affairs of the business, including entering into contracts to purchase citrus from several growers. On October 19, 2012, Paladin entered into contract number 2033 with Partners to purchase approximately 6000 boxes of Murcots (a tangerine variety) at $12.00 per box.2/ The contract is signed by Paladin as the Agent of “Sunny Fresh Citrus Export & Sales Company, Licensed Citrus Fruit Dealer (Buyer).” On December 13, 2012, Sunny Fresh entered into contract number 2051 with Partners to purchase Hamlins (a different fruit variety) at $6.50 per box.3/ The contract price was for citrus “on the tree,” meaning it was the buyer’s responsibility to harvest the citrus. The contract is signed by Paladin as the Agent of “Sunny Fresh Citrus Export & Sales Company, Licensed Citrus Fruit Dealer (Buyer).” (Contract 2033 and 2051 are hereinafter referred to collectively as “the contracts”.) The contracts were prepared on pre-printed forms used by Marinaro’s businesses pre-dating Paladin’s involvement. The contract form is titled as follows: Citrus Purchase Contract & Agreement Sunny Fresh Citrus Export & Sales Company Cash Fruit Crop Buyer 2101 15th Avenue Vero Beach, Florida 32960 Paladin testified that he was not aware of more than one company for Marinaro’s fruit-dealing business. He testified that he was not aware of any difference between Sunny Fresh Citrus Export and Sales Company and Sunny Fresh Citrus Export and Sales Co., LLC. Paladin was not aware of when the LLC was created. Paladin’s testimony is accepted as credible and reliable. Paladin testified that his intent was to enter into the contracts for the benefit of “Sunny Fresh.” “Sunny Fresh,” written in twelve-point bold red letters over an image of the sun in yellow outlined in red, is a trademark registered with the Florida Division of Corporations. Marinaro first registered the trademark in February 1998. In his trademark application, Marinaro entered the applicant’s name as “Kelly Marinaro D/B/A Sunny Fresh Citrus.” Marinaro renewed the trademark registration in 2007. Marinaro testified that the “Sunny Fresh” trademark is “owned by the LLC.” On February 20, 2012, Paladin, Marinaro and a third partner, Gary Parris, formed another company, Sunny Fresh Packing, LLC, the purpose of which was to run a fruit-packing house in Okeechobee, Florida. Equipment for the packing house was obtained from a packing house in Ft. Pierce, Florida, which was indebted to Marinaro, in some capacity, and went “belly up.” In March 2013, the Okeechobee packing house was struck by lightning. Shortly after the lightning strike, Marinaro, Paladin, and Mr. Parris, signed a letter addressed “To our valued Growers.” The letter explained that, due to both the lightning strike, which shorted out all computers and electrical components at the packing house, and reduced demand for product due to severe weather in the northeastern United States, they had made a “business decision to end the year now and prepare for next year.” The letter further explained that, “rather than spending thousands of dollars all at once, we feel, it makes better sense to use our cash flow to pay our growers first . . . . We will be sending out checks every week or every other week until everyone is paid or until we receive supplemental cash infusions that we are working on. In that case we would just pay everyone in full, from that.” The letter was prepared on letterhead bearing the “Sunny Fresh” trademark logo. Paladin made a number of payments to Partners on the contracts during 2012 and 2013. Each check shows payor name as “Sunny Fresh” with an address of 2101 15th Avenue, Vero Beach, Florida 32960. Mr. Phypers met with Paladin a number of times to collect checks and understood that Paladin was making concerted efforts to pay all the growers. However, Partners did not receive full payment on the contracts. Paladin drafted a Release of Invoices Agreement (Agreement) by which creditor growers could receive partial payment on their outstanding contracts in exchange for a full release of liability from the buyer. The Agreement lists the following entities and persons as being released from liability: “Sunny Fresh Packing, LLC”; “Sunny Fresh Citrus Export and Sales Co., LLC”; and Kelly Marinaro. Paladin presented the Agreement to Partners with an offer to pay $36,449.45 in consideration for signing the Agreement. Partners did not sign the Agreement. The parties stipulated that the amount owed Partners under both contracts is $44,032.00. Respondent contends that Petitioner’s claim is filed against the wrong business entity. Respondent argues that Petitioner’s contracts were with the DBA, and that Petitioner’s claim is incorrectly brought against the LLC. Thus, Respondent reasons, the LLC is not liable to Petitioner for the monies owed. The DBA was registered with the State of Florida in 2007 and held an active fruit dealer’s license through July 31, 2012. Marinaro owned and operated the DBA at 2101 15th Avenue, Vero Beach, Florida 32960. The DBA filed a citrus fruit dealer’s bond with the Department of Agriculture for the 2008-2009 shipping season. Marinaro registered the trademark “Sunny Fresh” logo in the name of the DBA in 2007, and was still using the logo on his business letterhead in 2013. Marinaro formed the LLC in 2011, which holds an active citrus fruit dealer’s license. Marinaro and his wife, Jean, are the only members of the LLC. The principal address is 2101 15th Avenue, Vero Beach, Florida 32960. The LLC filed citrus fruit dealer’s bonds with the Department of Agriculture on June 28, 2012, for the shipping season ending July 31, 2013, and on May 2, 2013, for the shipping season ending July 31, 2014. Marinaro did not refile a bond for the DBA after forming the LLC. At all times relevant hereto, Marinaro’s fruit dealer’s business has been physically located at 2101 15th Avenue, Vero Beach, Florida 32960. The building at that address bears the name “Sunny Fresh.” Marinaro testified that he formed the LLC shortly after his heart attack to “protect his personal assets.” Marinaro explained that he had little revenue in the LLC “for the next two years,” and he planned for the LLC to conduct sales for the packing company. He expected the LLC would be purchasing fruit from other packing houses. In fact, he testified that, during his absence, he was not aware that either the DBA or the LLC were purchasing fruit. Marinaro was clearly upset about the financial state of his business when he resumed control in the Spring of 2013. He testified that, prior to his heart attack, he was running a business with a typical $10 to $12 million yearly revenue, but that he returned to a business in debt to the tune of roughly $790,000.00. Marinaro lamented that Paladin entered into contracts to buy citrus when that was not the plan for the LLC. Alternately, he blamed Paladin for taking too much money out of the LLC to set up the packing house. Marinaro’s testimony was inconsistent and unreliable. He first testified that Paladin had full authority to purchase fruit in his absence, but later professed to be “dismayed” that his company was purchasing fruit in his absence. The evidence does not support a finding that the LLC was formed for any reason other than to continue his fruit dealings in a legal structure that would protect his personal assets. Marinaro’s explanation that the purpose of the LLC was to conduct sales for the packing company also lacks credibility. The LLC was organized in November 2011, but the packing house in Ft. Pierce from which he acquired the equipment to set up a packing house in Okeechobee did not go “belly up” until February 2012. Marinaro would have had to be clairvoyant to set up an LLC for the sole purpose of sales to a packing house about which he was not aware until four months later. Marinaro’s testimony that he was in the dark about the running of his business and that he was somehow duped by Paladin is likewise unreliable. Marinaro testified that, during his absence, he was “concerned that Paladin was entering into contracts where a bond was required, but not secured.”4/ He could not have been concerned about contracts to buy fruit without posting the required bond if he was not even aware that his company was purchasing fruit. Further, Marinaro neither questioned Paladin about entering into the citrus contracts, nor suggested Paladin use a different contract form for the LLC. The evidence establishes that Marinaro knew Paladin was purchasing fruit during Marinaro’s absence to continue the regular fruit-dealer’s business, and further, that Marinaro knew Paladin was entering into contracts on behalf of the LLC, the company formed just one day prior to Marinaro granting Paladin full power of attorney to run his business. Finally, Marinaro knowingly participated in the formation of Sunny Fresh Packing, LLC, in February 2012, four months after he became incapacitated. This required his involvement in a complicated business scheme in which his company collected on a debt owed by a packing house in Ft. Pierce, and acquired the equipment to run the new packing house, with two partners, Parris and Paladin, located in Okeechobee on property owned by a third party, Mr. Smith, who is not a member of Sunny Fresh Packing, LLC. It is unlikely Marinaro was clueless as to the fruit dealings of the LLC in his absence. Further, it is disingenuous, at best, for Marinaro to suggest that the contracts entered into in 2012 are not with the LLC, the corporation he formed in 2011 to protect his personal assets from his business obligations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of DP Partners, Ltd., against Sunny Fresh Citrus Export and Sales Co., LLC, in the amount of $44,032.00. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2014.
Findings Of Fact In May 1979, Respondent issued invitation for bids for office space in West Palm Beach, Florida, for the purpose of establishing a combined claims, tax, and appeals unemployment compensation office in the West Palm Beach area. The lease on the present office in West Palm Beach expires in December, 1979. Two prior invitations for bids on the required office space had failed to result in the receipt of any bids. The invitation for bids provided that Respondent reserved the right to reject any and all bids and to make the award deemed to be in the best interests of the State of Florida. (Testimony of Bradner, Exhibit 15) On May 30, 1979, Petitioner Richard S. Weinstein submitted the sole bid in response to the May 1979 invitation. He proposed to lease his building located at 1814 North Dixie Highway, West Palm Beach, and to meet all bid specifications and requirements. At the time of bid submission, Petitioner was leasing the building in question to a tenant who operated a used furniture store on the premises. In order to meet the specifications of the bid, the property required considerable renovation and improvement which Petitioner agreed to accomplish. (Testimony of Petitioner, Exhibit 2) A bid selection committee composed of four departmental employees in Respondent's Tallahassee headquarters was appointed to consider Petitioner's bid and arrive at appropriate recommendations. On June 7, 1979, one of the committee members, accompanied by several officials of the West Palm Beach Office, inspected Petitioner's building and the surrounding area to determine its suitability for the proposed unemployment compensation office. Based upon statements made by those officials and the building's tenant that the area was unsafe and subject to frequent vandalism and theft, the committee member thereafter recommended to the selection committee that the bid be rejected and that the Department should readvertise for new bids. The committee unanimously accepted the recommendation and, on June 13, 1979, Petitioner was advised in a letter from the Respondent's support services director that his bid had been rejected based on the "inability of the building to meet our programmatic needs." Petition thereafter protested the decision and, as a result, the Secretary of the Department, Wallace E. Orr, directed the entire committee to make an on-site evaluation of the property and surrounding area. Thereafter, on July 18, 1979, the committee visited the site. At this time, each committee member, together with one of the officials of the local office, inquired of various businessmen in the surrounding area as to local criminal activity and solicited their opinion as to safety and security problems. One of the committee members also telephoned a city police desk sergeant concerning crime statistics in the area. (Testimony of Petitioner, Lowhorn, Orr, Bradner, Exhibits 3-4, 12) Petitioner gave the committee members a petition from a number of local businessmen supporting his bid, and a letter from the nearby Good Samaritan Hospital advising that it may construct a medical office building adjacent to the hospital in the future. Letters were also sent to the Department by the manager of an apartment building adjacent to Petitioner's premises stating that the area was safe and that there had been no break-ins in more than four years, and from the Mayor of West Palm Beach to the Secretary of the Department describing the area and asserting that it was making a resurgence in character as a result of city improvements and that it was no more unsafe than most of the areas of the city. Another letter, dated July 20, 1979, was sent to the Department from the West Palm Beach Downtown Development Authority Executive Director stating that the area was growing, new buildings were being developed, and that the downtown area generally was becoming a "hub" for governmental facilities. Upon return to Tallahassee, each member of the bid committee rendered a report and recommendations concerning Petitioner's bid. They applied weighted criteria in its consideration, and concluded that the bid was unacceptable because it failed to meet the two criteria of "condition of immediate vicinity of location" and "security of the facility." In these respects, they basically found that (a) the various businesses in the area were essentially "fortified" against burglary and vandalism, (b) the proposed office would be subjected to break-ins and possible loss of valuable office equipment and unemployment compensation checks, (c) the local departmental employees would be fearful of working in an unsafe area and (d) an office located at Petitioner's premises would be "depressing" to members of the public who utilized the departmental services. No mention was made in the various reports of the petition or letters sent to the Department by civic officials. The committee again recommended rejection of the bid and, by letter of August 1, 1979, Petitioner was advised of this fact and that new calls for bids would be made in the near future. Secretary Orr had viewed the premises himself and agreed with the committee recommendations that the site was unsuitable for the establishment of a local office. He felt that placement of the office in the area where Petitioner's building was located would be inconsistent with departmental goals to upgrade their state offices and improve their "image." He had not been made aware of most of the various letters and the petition provided to the committee, but had considered the letter of the West Palm Beach Mayor prior to arriving at his decision. (Testimony of Butler, Frisch, Radner, Baker, Orr, Lowhorn, Renfroe, Quigg, Petitioner, Exhibits 6-10, 11-12, 16) The street on which Petitioner's building is located is commercial in nature, although it is on the fringe of a residential community. It is an older part of the city and, until about five years ago, was in a rundown and depressed condition. In recent years, however, there has been an upgrading of the character of the downtown area of West Palm Beach which extends northerly to encompass the businesses in Petitioner's vicinity. The establishment of governmental facilities in the downtown and adjacent areas have been encouraged and a state office building is located in the area. A Department of Health and Rehabilitative Services "halfway house" has been erected approximately two blocks from Petitioner's building. Additionally, a branch banking facility, professional offices, several quality restaurants, and other modern business establishments are in the near vicinity. A laundry plant is across the street from Petitioner's building and at the present time presents an unsatisfactory appearance. It is intended, however, by the owners to expand and remodel the building in the near future. The City of West Palm Beach has the second highest crime incident rate in the state based on population. The city is divided into ten zones for police purposes, and during 1978, the zone in which Petitioner's building is located was average from the standpoint of crime statistics. In the opinion of the City Chief Police Inspector, it is typical of the various commercial areas located along U.S. Federal Highway No. 1, and as safe an area in the daytime as any in the city. He is of the further opinion that a burglar alarm would be a sufficient security precaution for nighttime safety, and that with such protection, a building would have adequate security. The highest crime rate in the city is located in the zone where the city hall, police station and other governmental buildings are located. Although business and professional individuals in the area near Petitioner's building have experienced minor vandalism and occasional illegal entries in the past, they uniformly are of the opinion that the area is safe with normal security precautions, such as a burglar alarm. A local boat sales establishment has a fence around the premises and a watch dog, but no burglar alarm. These precautions are designed to protect the expensive boats which are located out- side the building. The apartment building next to Petitioner's premises has not experienced break-ins in recent years although some of its elderly patrons have been exposed to occasional purse snatching on the street. The laundry plant across the street from Petitioner's building experiences various window breakage by youths on the weekends, and had a break-in recently in the nighttime through a poorly secured door in the rear of the premises. (Testimony of Lowhorn, Stackhouse, Hauser, Hodges, Lee, Lunney, Eddy, Ring, Eaton, DeSanti, Witt (Deposition - Exhibit 1), Exhibits 12-14).
Recommendation That Petitioner's bid be accepted by Respondent and recommended for approval to the Department of General Services. DONE and ENTERED this 17th day of December, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John C. Moyle, Esquire 707 North Flagler Drive Post Office Box 3888 West Palm Beach, Florida 33402 Kenneth H. Hart, Jr. and Chad J. Motes, Esquires Department of Labor and Employment Security 2561 Executive Center Circle E. Suite 131 Tallahassee, Florida 32301
