Findings Of Fact Developers Diversified Services Limited, an Ohio limited partnership (DDS) , entered into negotiations with petitioners with a view toward acquiring certain property owned by petitioners in Pasco County (the Santos tract) for use as part of a shopping center site. It was understood on all sides that the Santos tract would he unsuitable for this purpose without another, contiguous parcel which was owned by a bank. As a result of these negotiations, on April 23, 1974, petitioner Bay Crest Plaza, Inc. executed a deed to the Santos tract in favor of DDS. Respondent's exhibit No. 2. Attached to this deed are stamps reflecting payment of documentary stamp tax in the amount of seventy-five dollars ($75.00) and of documentary surtax in the amount of two hundred seventeen and one half dollars ($217.50). The remaining named petitioners executed a second deed to the same Santos tract in favor of DDS, on April 23, 1974. Respondent's exhibit No. 1. Attached to this deed are stamps reflecting payment of documentary stamp tax in the amount of six hundred seventy-five dollars ($675.00) and of documentary surtax in the amount of two hundred forty-seven and one half dollars ($247.50). Both conveyances (of the same property) were subject to an outstanding mortgage in favor of Mr. and Mrs. James L. Stevens in the original amount of one hundred thirty-one thousand two hundred fifty dollars ($131,250.00). On April 25, 1974, DDS executed a purchase money mortgage to secure payment of a promissory note in the amount of two hundred six thousand three hundred two and sixty-nine hundredths dollars ($206,302.69) , in favor of petitioners. The mortgage provided that "there is and will be no personal liability of the mortgagor. Respondent's exhibit No. 3. The deeds executed by petitioners in favor of DDS anci DDS' mortgage in favor of petitioners were all recorded in Pasco County on August 12, 1974, in the office of the clerk of the circuit court. There is no issue in the present case with respect to taxes due on account of the recording of any of these instruments. When it became clear that the bank was unwilling to sell the parcel DDS sought to buy from it, DDS reconveyed the Santos tract to petitioners by deed dated November 11, 1974. The deed from DDS to petitioners was filed in Pasco County in the office of the clerk of the circuit court on December 27, 1974. Attached to this deed are stamps reflecting payment of documentary stamp tax in the amount of thirty cents ($0.30) and of documentary surtax in the amount of fifty-five cents ($0.55). Thereafter, petitioners executed a satisfaction of the purchase money mortgage DDS had executed in favor of petitioners on April 25, 1974, and the satisfaction was filed in Pasco County in the office of the clerk of the circuit court on January 24, 1975.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's revised notice of proposed assessment be upheld. DONE and ENTERED this 28th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank and Aniana Santos Frank and Ruby Johnson 36 Sandpiper Road Tampa, Florida 33609 Patricia S. Turner, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304
The Issue Whether the Respondent Five Brothers Produce owes Petitioner an additional $13,965.00 for snap beans that Five Brothers Produce received, sold, and shipped to buyers as Petitioner's agent/broker.
Findings Of Fact Respondent Five Brothers Produce, Inc. ("Respondent" or "Five Brothers") accepts agricultural products from growers for sale or consignment and acts as an agent/broker for the growers. It has a surety bond issued by Old Republic Surety Company to secure payment of sums owed to agricultural producers. Petitioner Paul Hernandez ("Petitioner" or "Mr. Hernandez") grows snap beans. On March 26, 2010, Mr. Hernandez delivered 400 boxes of hand-picked snap beans to Five Brothers to sell. On March 27, 2010, Mr. Hernandez delivered an additional 750 boxes of snap beans to Five Brothers to sell for him. Five Brothers' Marketing Agreement and Statement included on the Grower Receipt was given to Mr. Hernandez on March 26 and 27, 2010. It provided in relevant part: The grower gives Five Brothers Produce the right to sell or consign to the general trade. No guarantees as to sales price are made and only the amounts actually received by Five Brothers Produce, less selling charges, cooler charges, and any other charges will be paid to the grower. Final settlement will be made within a reasonable length of time and may be held until payment is received from the purchaser. On March 27, 2010, Five Brothers' invoice showed that it shipped 336 of the first 400 boxes of Mr. Hernandez' beans to Nathel and Nathel, Inc., at the New York City Terminal Market. From that shipment, Five Brothers received $12.00 a box, or a total of $4,032.00. After deducting its fee of $1.60 a box, Five Brothers paid Mr. Hernandez net proceeds of $3,494.40. On the next day, Five Brothers' records show it sold the remaining 64 boxes to Tolbert Produce, Inc., for $22.70 a box. On March 26, 2010, the United States Department of Agriculture ("USDA") Fruit and Vegetable Market News Portal reported sales prices ranging from $24.85 to $25.85 a box for round green handpicked snap beans grown in Central and South Florida. Mr. Hernandez had reason to question the accuracy of Five Brother's invoice, given the USDA data and the Tolbert Produce sale. Nathel and Nathel also documented the sales of the 336 boxes of beans and 160 boxes of squash it received from Five Brothers. By the time of its settlement with Five Brothers, it paid a total of $5,643.50, of which $4,032.00 came from the sales of beans as reported on the Five Brothers' invoice. On March 29, 2010, Five Brothers shipped all 750 boxes of beans it received from Mr. Hernandez on March 27, 2010, to A and J Produce, Inc., at the New York City Terminal in the Bronx. Five Brothers' invoice indicated that it received $9.00 a box, or a total of $6,750.00 from A and J. Five Brother's fee for that shipment was also $1.60 a box, or a total of $1,200.00, leaving Mr. Hernandez with a net return of $5,550.00. USDA market data showed prices for the handpicked snap beans, on March 29, 2010, ranged from $20.00 to $20.85 a box. The actual cost of production for Mr. Hernandez, including seeds, water, fertilizer, and labor can range from $6.00 to $10.00 a box. He would not have paid for the labor to hand-pick beans if he had known he could not get an adequate return on his investment. Relying on the USDA data, Mr. Hernandez reasonably expected his net return to be $13,965.20, higher than it was. Five Brothers sold the beans in a rapidly declining market. Pointing to the same USDA data, Five Brothers showed the drop towards the end of March and into April 2010. On March 30, the price was down to $16.85 to $18.85. On March 31, the price was $14.85 to $16.85. And, from April 1 through April 6, a box of snap beans was selling for $10.00 to $12.85. Mr. Hernandez alleged that Five Brothers' invoice for the sale of the 750 boxes was not correct. He pointed to an exhibit that showed Five Brothers shipped A and J Produce 1344 boxes of beans, including the 750 boxes grown by him, and another exhibit that appeared to show that A and J received the 1344 boxes, on March 31, 2010, and paid Five Brothers $20.00 a box. That same A and J document, however, tracks the declining prices as each part of the shipment was sold. In the end the value was 68.82 percent of the target price of $20.00, which equals an average sales price of $13.76. After Five Brothers deducted the $1.60 a box fee, proceeds for Mr. Hernandez were approximately $12.00 a box consistent with that reported as A and J's final settlement with Five Brothers. The evidence that there was no guarantee of a sales price in the agreement, that market prices were declining rapidly, and that the receivers' documents support those of the shipper, Five Brothers, is sufficient to rebut any evidence that Mr. Hernandez is entitled to additional payments for the beans delivered to Five Brothers on March 26 and 27, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint of Paul Hernandez against Five Brothers Produce, Inc. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 20th day of September, 2010.
The Issue The issue is whether the Department of Revenue’s audit assessment of tax and interest against Petitioner, Dolphin Tanker Systems, Inc., issued on June 15, 2004, should be sustained.
Findings Of Fact Dolphin Systems is incorporated and domiciled in the State of Florida, having its principal place of business located at 3255 Mulford Road, Mulberry, Florida. Dolphin Systems sells water tanks and trucks to construction contractors and equipment dealers, both domestic and foreign. Products are sold and delivered within the state and also exported to other states and countries. Dolphin Systems is a "dealer" within the meaning of Subsection 212.06(2)(c), Florida Statutes (2003).1/ On or about May 9, 2003, the Department notified Petitioner that it would conduct an audit of Dolphin Systems business. The audit period was from April 1, 2000 through March 31, 2003. The Department and Dolphin Systems agreed that the audit would be conducted by the sampling method. See § 212.12(6)(c)1., Fla. Stat. On January 5, 2004, the Department concluded its record review and issued its Notice of Intent to Make Audit Changes ("NOI"). The NOI showed that Dolphin Systems owed the Department additional sales and use tax in the amount of $92,093.92, penalties in the amount of $23,023.48, and interest in the amount of $23,661.54. Dolphin Systems requested an audit conference to review the factual circumstances and reasons for the Department’s adjustments. During the conference, additional records were provided which resulted in a revision to the NOI (Revision No. 1). A subsequent revision to the NOI occurred on April 20, 2004 (Revision No. 2). On June 15, 2004, the Department sent Dolphin Systems a Notice of Proposed Assessment which indicated that Dolphin Systems owed the Department additional sales and use tax in the amount of $30,302.69; and interest through June 14, 2004, in the amount of $9,268.14, making a total assessment of $39,570.83. Determined Facts Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings are made: The Department is authorized to conduct audits of taxpayers and to request information to ascertain their tax liability, if any, pursuant to Section 213.34, Florida Statutes. In May 2003, the Department initiated an audit of Dolphin Systems to determine whether Dolphin Systems was properly collecting and remitting sales and use tax to the Department. During the audit period, April 1, 2000 through March 31, 2003, Dolphin Systems purchased inventory, fixed assets, and other tangible property for use in its business. Additional tax was determined to be due (at the combined rate of 6.75 percent) on the general, fixed asset and inventory purchases made by Dolphin Systems during the audit period for which sales tax was either not paid to the vendor or where Dolphin Systems did not accrue the correct amount of use tax. Exempt Sales The Department’s work papers identify sales for which adequate documentation was not provided to support Petitioner's claimed exempt status. Specifically, Petitioner had no resale exemption certificates from sales made to either Florida dealers or to non-Florida dealers. There was no evidence that the item was or would be exported out of state. By its own terms, Invoice No. 2423 relates to a transaction that describes a New Dolphin 3500 gallon tank; Berkeley water pump; spray heads; and wash-down hose with reel, air controls in cab, primed, painted, decaled, and mounted on a provided chassis. Invoice No. 2423 reflects a sales price of $13,500.00, but does not show that sales tax was collected on the transaction. Dolphin Systems contends that the transaction involving Invoice No. 2423 is exempt from sales tax because it was an out-of-state sale. If RSV and Associates took possession of the property in Florida, but could document that there was uninterrupted export of the goods/property out of the country or a statement from the vendor that the property went out of the State of Florida for resale, that sale would be exempt from sales tax. However, Dolphin Systems provided no such documentation to the Department. To support its claim that the item was an out-of-state sale, Dolphin Systems provided shipping documentation which purported to show that the item listed on Invoice No. 2423 had been shipped to Puerto Rico. The unsigned shipping document described the property being shipped to Puerto Rico as a two- door white 1994 International truck. However, because the item listed on Invoice No. 2423 was different from the property noted on the unsigned shipping document, the Department could not tie the two records together. Therefore, the Department appropriately concluded that there was no basis for exempting the transaction reflected in Invoice No. 2423. Other Income The Notice of Proposed Assessment assessed sales tax on $62,500.00, which Dolphin System had categorized as "Other Income" on its Federal income tax return for the year 2000, Form 1120 ("2000 Tax Return"). The Department based this assessment on its work papers identified as "other income" for which adequate documentation was not provided to support the claim that tax had been remitted. Petitioner reported $62,500.00 in "other income" on its 2000 Tax Return and on its trial balance. No reconciliation of income per books, with income per return, was entered for this event. This income was not included on the state sales tax return for that period; and, therefore, it was properly scheduled as an exception. The Department included the $62,500.00 because Petitioner reported the income both on its financial statements and 2000 Tax Return. Because Petitioner uses the accrual method, events that gave rise to the creation of income are reported in the year the event took place. Accordingly, the "other income" is properly attributable to the year 2000. In response to the assessment, Dolphin Systems claimed that the $62,500.00 represented collection of a "bad debt," and the transaction represented a cash receipt of $62,500.00 from a settlement in a lawsuit for an unpaid invoice from prior years. As support for this claim, Dolphin Systems presented the Department with a copy of a Final Judgment in Dolphin System's favor. According to the Final Judgment dated September 1999, Kimmins Contracting Corporation ("Kimmins Contracting") was indebted to Dolphin Systems for $59,300.00, plus sales tax of $3,595.50, for a total of $62,895.50 for property sold and delivered between June 16, 1998 and July 8, 1998. There is no dispute that this property was taxable. Dolphin Systems also contended that in July 1998, it reported and remitted to the Department the sales tax on the property sold and delivered to Kimmins Contracting, even though Kimmins Contracting had not yet paid for the property or the sales tax thereon. As additional support for its claim, Dolphin Systems submitted to the Department a Sales and Use Return for the collection period July 1998, which showed a taxable amount of $100,000.00 and taxes collected as $6,112.50. Moreover, there was a discrepancy between the amount of gross sales on Petitioner's 2000 Tax Return and the gross sales reported for sales tax purposes to the Department on Form DR-15. Notwithstanding Petitioner's claim, there was no supporting documentation to either explain the discrepancy or to establish that Petitioner had already paid sales tax on the "other income." In the absence of any back-up data, the Department appropriately concluded that the foregoing Sales and Tax Use Return did not show that the sales tax for tangible personal property sold to Kimmins Contracting was included in the amount of sales taxes reported and remitted to the Department in July 1998. General Purchases The Department's work papers identify general purchases from various vendors for which adequate documentation was not provided to show that either tax was paid on the purchase or that it was exempt as a purchase for resale. In some instances, no invoices were presented; in which case, the Department could not determine that sales tax had, in fact, been paid. In other instances, invoices existed, but there was no documentation showing the purchase was for resale. Dolphin Systems is in the business of purchasing and/or building and repairing tankers for resale. When tankers are purchased for resale and this can be documented, there is no tax on the item. Here, Dolphin Systems claimed, but was unable to document, that certain items were for resale. Without such documentation, the Department properly scheduled the items included in the Notice of Proposed Assessment. Items normally purchased for resale are recorded in the cost of goods sold account, not in office supplies or shop supplies account. The items contained in these accounts normally are for items used in the business, and since they are being used, sales tax is due. Likewise, as in this case, reimbursement to the owner for credit card purchases, unless Petitioner documented the reason for each purchase, is a taxable use. In accordance with the Notice of Proposed Assessment, the Department properly assessed Dolphin Systems $30,302.69 for taxes and $9,268.14 for interest through June 15, 2004. Additionally, Dolphin Systems in liable for daily interest to be computed from June 16, 2004, at 6.64 per day. The Department has waived all penalties. There are no "other" penalties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue issue a final order sustaining the assessment for sales and use tax and interest against Petitioner. DONE AND ENTERED this 7th day of April, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2005.
The Issue Whether there is probable cause for Petitioner to bring an action against Respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Respondents sell used cars in Pensacola, about 500 a year. On or about June 19, 1981, when Fannie Mae Tunstall bought a '76 Buick LeSabre from Fairfield Motors, Inc. (Fairfield), she dealt with Elaine Owens Atkins, who is Fairfield's general manager, secretary-treasurer and a six-year employee. The installment sales contract specified an annual percentage rate of 29.64 percent, and was stamped with the legend, "MINIMUM $25 REPO OR COLLECTION FEE." Respondent's Exhibit No. 1. Ms. Tunstall told Ms. Atkins the payments were too much but signed the papers anyway, and did so without reading them, although Ms. Atkins had told her to read them. The payments did indeed prove too much and Ms. Tunstall fell behind. She was 13 days late with a payment in November of 1981, but Ms. Tunstall and Ms. Atkins had discussed the matter and Fairfield agreed to accept the payment late. Fairfield accepted other payments late, but arranged to have Willie Easley (formerly a singer and now a minister as well as a repossessor of cars) take possession of the Quick early in the morning of January 10, 1983, and drive it away. Ms. Tunstall had failed to make the monthly payment due December 30, 1982. Ms. Atkins had telephoned her once and gotten no answer. Later on January 10, 1983, Fairfield agreed to return the car in exchange for December's payment, another payment in advance, a six dollar late fee and a $100 repossession fee. Ms. Tunstall paid the entire balance Fairfield claimed to be owed and retrieved the car. Linda Louise LaCoste and her husband Ronnie have bought several cars from Fairfield, including a 1976 Chevrolet Suburban Mr. LaCoste bought on February 7, 1983, under an installment agreement calling for interest at an annual percentage rate in excess of 30 percent. The "cash price" was $3,459.75, and the "total sale price" was $4,613.15. Respondent's Exhibit No. 3. The LaCostes understood from prior dealings that their agreement required Mr. LaCoste to maintain insurance on the vehicle, and Mr. LaCoste contracted with Allstate Insurance Company (Allstate) for appropriate coverage. Allstate sent Fairfield a notice of cancellation for nonpayment of premium effective 12:01 A.M. April 4, 1983. Petitioner's Exhibit No. 4. At 11:25 A.M. on April 4, 1983, Allstate accepted the premium Ronnie LaCoste offered in order to reinstate the policy, No. 441361747, and Allstate's Chirstine Smith also wrote a new policy to be sure there would be coverage. Ms. Smith told Fairfield that insurance was in force on April 4, 1983. On April 20, 1983, Allstate issued another notice of cancellation for nonpayment of premium on policy No. 441361747, effective 12:01 A.M. May 4, 1983. At ten minutes past three o'clock on the afternoon of May 4, 1983, Mr. LaCoste's Chevrolet Suburban was repossessed at Fairfield's instance on account of the apparent lapse of insurance. Mrs. LaCoste and here sister appeared promptly at Fairfield's place of business and tendered payment due that day. All prior payments to Fairfield were current. When Mrs. Atkins refused payment, Mrs. LaCoste and here sister protested with such vehemence that a Fairfield employee called the sheriff's office. According to Fairfield's contemporaneous records, Fairfield employees ("we") tried to give Mrs. LaCoste a letter "advising vehichle [sic] would be held for 10 days" (i.e., that it would be sold thereafter) but "she refused to accept a copy." Respondent's Exhibit No. 3. At hearing, Ms. Atkins conceded that she had not mailed a copy of the letter to Mr. LaCoste but testified that Mrs. LaCoste accepted a copy after refusing to take it initially. Mrs. LaCoste denied that she ever received the letter, and her version has been credited. On May 7, 1983, Fairfield received another communication from Allstate. Whether insurance coverage in fact lapsed on May 4, 1983 was not clear from the record. On May 17, 1983, Fairfield sold the Chevrolet Suburban for $2,050.00. Carolyn V. Kosmas purchased a 1978 Ford LTD II from Fairfield and made a downpayment of $550.00 on June 2, 1983. Under the terms of the installment sale contract, which called for an annual percentage rate in excess of 29 percent, she was to begin seventy dollar ($70.00) biweekly payments on June 22, 1983. At the time of the sales of the Ford to Ms. Kosmas on June 2, 1983, Fairfield asked for credit information about her fiance as well as about herself. On June 24, 1983, she appeared at Fairfield's place of business and tendered not only the payment due June 22 but also the payment due July 6, a total of $140.00 in cash. Ms. Atkins refused to accept the money, telling her that her references had not panned out, and asked her to surrender the keys to the car and gather up her personal effects. Ms. Kosmas made no secret of her opinion that she was not being treated fairly, but, crying and afraid, eventually agreed to treat the transaction as a rental and accepted a refund of $104.39 on that basis. Ms. Atkins "advised if she gave me another background sheet, that I could verify, I would renegotiate with her," Respondent's Exhibit No. 5, but Ms. Kosmas told Ms. Atkins that she had lost her job at West Florida Hospital and the renegotiation eventuated in the retroactive lease. Respondent Pearl Allen was present on June 24, 1983, and took the car keys from her. It was also he who wrote her on June 27, 1983 that the 1978 Ford LTD II would be privately sold on July 6, 1983. She did not appear when and where she was told the sale would occur. The Ford was in fact sold at auction in Montgomery, Alabama, on July 19, 1983. Respondent's Exhibit No. 5. Mary Lee Hobbs' husband Forace paid Fairfield $800.00 down on a 1977 Oldsmobile 98 on February 27, 1982, agreeing to maintain insurance on the car until paid for, and to pay the unpaid principal balance of $4134.25 over a two and a half year period together with interest at an annual percentage rate of 29.79. Stamped on the contract was the legend, "MINIMUM $25 REPO OR COLLECTION FEE." In part, the installment sale contract read: * NOTE: DISCLOSURES REQUIRED BY FEDERAL LAW, Respondent's Exhibit No. 6 (reduced in size), has been omitted from this ACCESS Document. For review, contact the Division's Clerk's Office. All payments were current when, at about half past five o'clock on the morning of November 1, 1983, Fairfield's agents used a wrecker to remove the Oldsmobile, damaging the Hobbses' porch in the process. Fairfield acted because it received notice of cancellation or nonrenewal of the insurance policy that Hobbs maintained on the car. Typed on the form notice as the effective date of cancellation was November 29, 1983. Someone has written in ink "should be 10-29." In fact the insurance policy never lapsed. According to Fairfield's records, they received conflicting information, on October 29, 1983, about whether an insurance premium had been paid. The Hobbses' 27-year old "daughter said they p[ai]d--Conway Spence said they did not pay." Respondent's Exhibit No. 6. This was the same day Mr. Spence, an insurance agent, erroneously informed Fairfield that the effective date of expiration "should be 10-29." Respondent's Exhibit No. 6. Even after Mr. Spence's error was known to it, Fairfield refused to return the car without payment of a $75.00 "repossession fee," and also refused to let the Hobbs children return with the laundry they were sent to fetch from the trunk of the car. It was the refusal to give up the dirty laundry that sent Mrs. Hobbs to the authorities. Karel Jerome Bell bought a 1977 Delta 88 Oldsmobile from Fair field on July 22, 1982, under an installment sale contract calling for two "pick up notes" to be paid in August of 1982 and biweekly payments of $125.00 thereafter until payments reached a total of $4161.212. Respondent's Exhibit No. 7. The "pick up notes," each for $220.00 were due August 7 and 21, 1982, and were not treated as down payments on the installment sale form. After reducing his indebtedness to $1221.21, Mr. Bell fell two payments behind, and Fairfield repossessed the Oldsmobile on July 7, 1983. The same day Fairfield wrote Mr. Bell that it intended to sell his car, but not time or date was specified. On July 8, 1983, Mr. Bell called and asked whether he could continue making payments while the car on the lot. Respondent's Exhibit No. 7. Fairfield's Ms. Gilstrap accepted $100.00 from Mr. Bell on July 12, 1983, which she applied to satisfy a reposession fee of $100.00. On the Bell contract, too, had been stamped, "MINIMUM $25 REPO OR COLLECTION FEE." Ms. Gilstrap "told him as long as he paid something something regularly on the account, I felt sure we would hold it for him." Mr. Bell indicated he would pay an additional $125.00 the following Friday and Ms. Gilstrap made a notation to this effect in his file, where she also wrote, "Pls. don't sell he intends to pay for." Respondent's Exhibit No. 7. Mr. Bell had not made any further payment when, on July 30, 1983, without notice to Mr. Bell, Fairfield sold the car for $1,000.00 to a wholesaler. Respondents use form installment sale contracts. A blank form like the one in use at the time of the hearing was received as Respondent's Exhibit No. This was the form used in the Kosmas and LaCoste transactions. The predecessor form used in the Bell, Hobbs and Tunstall transactions was similar in many respects. The earlier form provided, "LATE CHARGES: Buyer(s) hereby agrees to pay a late charge on each installment in default for 10 days or more in an amount of 5 percent of each installment or $5.00 whichever is less." On the reverse, the form provided: ACCELERATION AND REPOSSESSION. In the event any Buyer(s) or Guarantor of this Contract fails to pay any of said installments, including any delinquency charges when due or defaults in the performance of any of the other provisions of this Contract or (c) in case Buyer(s) or Guarantor becomes insolvent or (d) institutes any type of insolvency proceedings or (e) has any thereof instituted against him, or (f) has entered against him any judgment or filed against him any notice of lien in case of any Federal tax or has issued against him any distraint warrant for taxes, or writ of garnishment, or other legal process, or (g) in case of death, adjudged incompetency, or incarceration of the Buyer(s) or Guarantor or (h) in case the seller or the holder of this Contract, upon reasonable cause, determines that the prospect of payment of said sums or the performance by the Buyer(s) or his assigns of this Contract is impaired, then, or in such event, the unpaid portion of the balance hereunder shall, without notice, become forthwith due and payable and the holder, in person or by agent, may immediately take possession of said property, together with all accessions thereto, or may, at first, repossess a part and later, if necessary, the whole thereof with such accessions, and for neither or both of these purposes may enter upon any premises where said property, may be and remove the same with or without process of law. Buyer(s) agrees in any such case to pay said amount to the holder, upon demand, or, at the election of the holder, to deliver said property to the holder. If, in repossessing said property, the holder inadvertently takes possession of any other goods therein, consent is hereby given to such taking of possession, and holder may hold such goods temporarily for Buyer(s), without responsibility of liability therefor, providing holder returns the same upon demand. There shall be no liability upon any such demand unless the same be made in writing within 48 hours after such inadvertent taking of possession. Should this contract mature by its term or by acceleration, as hereinabove provided, then, and in either such event, the total principal amount due hereunder at that time shall bear interest at the rate of 10 percent per annum, which principal and interest, together with all costs and expenses incurred in the collection hereof, including attorneys fees (to be not less than 15 percent of the amount involved), plus appellate fees, if any, and all advances made by Seller to protect the security hereof, including advances made for or on account of levies, insurance, repairs, taxes, and for maintenance or recovery of property shall be due the Holder hereof and which sums Buyer(s) hereby agrees to pay. * * * LIABILITIES AFTER POSSESSION. Seller, upon obtaining possession of the property upon default, may sell the same or any part thereof at public or private sale either with or without having the property at the place of sale, and so far as may be lawful. Seller may be a purchaser at such sale. Seller shall have the remedies of a secured party under the Uniform Commercial Code (Florida) and any and all rights and remedies available to secured party under any applicable law, and upon request or demand of Seller, Buyer(s) shall, at his expense, assemble the property and make it available to the Seller at the Seller's address which is designated as being reasonably convenient to Buyer(s). Unless the property is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Seller will give Buyer(s) reasonable notice of the time and place of any public or private sale thereof. (The requirement of reasonable notice shall be met if such notice is mailed, postage prepaid, to Buyer(s) at address shown on records of Seller at least five (5) days before the time of the sale or disposition) Expenses of retaking, holding, preparing for the sale, selling, attorneys' fees, supra, incurred or paid by Seller shall be paid out of the proceeds of the sale and the balance applied on the Buyer(s) obligation hereunder. Upon disposition of the property after default, Buyer(s) shall be and remain liable for any deficiency and Seller shall account to Buyer(s) for any surplus, but Seller shall have the right to apply all or any part of such surplus against (or to hold the same as a reverse against) any and all other liabilities of Buyer(s) to Seller. Similarly, the more recent form provides, on the obverse, Late Charge: If a payment is received more than ten (10) days after the due date, you will be charged $5.00 or five (5 percent) of the payment, whichever is less. and on the reverse, has identical provisions on "Acceleration and Repossession" and "Liabilities After Repossession."
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner find probable cause to initiate judicial proceedings against Respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 26th day of April, 1985, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of April, 1985. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Paul A. Rasmussen, Esquire Eggen, Bowden, Rasmussen & Arnold 4300 Bayou Boulevard, Suite 13 Pensacola, Florida 32503 Curtis A. Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact The parties have stipulated that the Petitioner is a "small business party" as the term is defined at section 57.111(3)(d). On June 21, 2010, the Petitioner applied to acquire an existing alcoholic beverage "quota" license from another licensee. The Petitioner had to pay a fee to transfer the license pursuant to section 561.32(3)(a), Florida Statutes (2010), which provides as follows: Before the issuance of any transfer of license herein provided, the transferee shall pay a transfer fee of 10 percent of the annual license tax to the division, except for those licenses issued pursuant to s. 565.02(1) and subject to the limitation imposed in s. 561.20(1), for which the transfer fee shall be assessed on the average annual value of gross sales of alcoholic beverages for the 3 years immediately preceding transfer and levied at the rate of 4 mills, except that such transfer fee shall not exceed $5,000; in lieu of the 4-mill assessment, the transferor may elect to pay $5,000. Further, the maximum fee shall be applied with respect to any such license which has been inactive for the 3-year period. Records establishing the value of such gross sales shall accompany the application for transfer of the license, and falsification of such records shall be punishable as provided in s. 562.45. All transfer fees collected by the division on the transfer of licenses issued pursuant to s. 565.02(1) and subject to the limitation imposed in s. 561.20(1) shall be returned by the division to the municipality in which such transferred license is operated or, if operated in the unincorporated area of the county, to the county in which such transferred license is operated. (emphasis added). License transfer applicants are required to provide gross sales records pursuant to Florida Administrative Code Rule 61A-5.010(2)(b), which provides as follows: An applicant for a transfer of a quota liquor license shall provide records of gross sales for the past 3 years or for the period of time current licensee has held license in order that the division may compute the transfer fee. An applicant may, in lieu of providing these records, elect to pay the applicable transfer fee as provided by general law. The gross sales records provided to the Respondent by the Petitioner were for the five-month period between January 21 and June 21, 2010, and totaled $573,948.94 for the period. To compute the transfer fee, the Respondent divided the reported gross sales ($573,948.94) by five to estimate an average monthly gross sales figure of $114,789.79.2/ The Respondent multiplied the estimated average monthly gross sales by 12, to estimate annual gross sales of $1,377,477.48. The Respondent then applied the 4-mill rate to the estimated annual gross sales and determined the transfer fee to be $5,509.91. The Respondent also calculated the transfer fee through a formula set forth on a form that had been challenged as an unadopted rule by an applicant in a 2008 proceeding. While the 2008 rule challenge was pending, the Respondent commenced to adopt the form as a rule, but the dispute was ultimately resolved without a hearing, after which the Respondent discontinued the process to adopt the rule. According to the formula on the form, the transfer fee was $5,599.50. Because both of the Respondent's calculations resulted in transfer fees in excess of $5,000, the Respondent required the Petitioner to pay the statutory maximum of $5,000. The Petitioner paid the $5,000 transfer fee under protest. The Petitioner asserted that the appropriate transfer fee should have been $765.27. The Petitioner's calculation used the reported five months of gross sales ($573,948.94) as the total annual gross sales for the licensee. The Petitioner divided the $573,948.94 by three to determine a three-year average of $191,316.31 and then applied the 4-mill rate to the three-year average to compute a transfer fee of $765.27. On March 17, 2011, the Petitioner filed an Application for Refund of $4,234.73, the difference between the $5,000 paid and the $765.27 that the Petitioner calculated as the appropriate fee. The Application for Refund was filed pursuant to section 215.26, Florida Statutes, which governs requests for repayment of funds paid through error into the State Treasury, including overpayment of license fees. Section 215.26(2) requires that in denying an application for a tax refund, an agency's notice of denial must state the reasons for the denial. As authorized by section 72.11(2)(b)3, Florida Statutes, the Respondent has adopted rules that govern the process used to notify an applicant that a request for refund has been denied. Florida Administrative Code Rule 61-16.002(3) states as follows: Any tax refund denial issued by the Department of Business and Professional Regulation becomes final for purposes of Section 72.011, Florida Statutes, when final agency action is taken by the Department concerning the refund request and taxpayer is notified of this decision and advised of alternatives available to the taxpayer for contesting the action taken by the agency. By letter dated May 9, 2011, the Respondent notified the Petitioner that the request for refund had been denied and stated only that "[w]e reviewed the documentation presented and determined that a refund is not due." The Respondent's notice did not advise that the Petitioner could contest the decision. On May 16, 2011, the Petitioner submitted a Request for Hearing to the Respondent, asserting that the Respondent improperly calculated the transfer fee by projecting sales figures for months when there were no reported sales. On August 4, 2011, the Respondent issued a letter identified as an "Amended Notice of Denial" again advising that the Petitioner's refund request had been denied. The letter also stated as follows: The Division cannot process your refund application due to the fact that the transferee has not provided the Division records which show the average annual value of gross sales of alcoholic beverages for the three years immediately preceding the transfer. On September 14, 2011, the Respondent forwarded the Petitioner's Request for Hearing to the Division of Administrative Hearings (DOAH Case No. 11-4637). By letter dated October 10, 2011, the Respondent issued a "Second Amended Notice of Denial" which stated as follows: We regret to inform you that pursuant to Section 561.23(3)(a), Florida Statutes, your request for refund . . . in the amount of $4,234.73 is denied. However, the Division has computed the transfer fee and based upon the records submitted by you pursuant to Rule 61A-5.010(2)(b), F.A.C., the Division will issue the Applicant a refund in the amount of $2,704.20. The records referenced in the letter were submitted with the original application for transfer that was filed by the Petitioner on March 17, 2011. The Respondent's recalculated transfer fee was the result of applying the 4-mill levy directly to the reported five months of gross sales reported in the transfer application, resulting in a revised transfer fee of $2,295.80 and a refund of $2,704.20. On October 11, 2011, the Respondent filed a Motion for Leave to Amend the Amended Notice of Denial, which was granted, over the Petitioner's opposition, on October 21, 2011. DOAH Case No. 11-4637 was resolved by execution of a Consent Order wherein the parties agreed to the refund of $2,704.20 "solely to preclude additional legal fees and costs," but the Consent Order also stated that the "Petitioner expressly does not waive any claim for attorneys' fees in this matter pursuant to F.S. 57.111." The Petitioner is seeking an award of attorney's fees of $8,278.75 and costs of $75, for a total award of $8,353.75. The parties have stipulated that the amount of the attorney's fees and costs sought by the Petitioner are reasonable. The Respondent failed to establish that the original calculation of the applicable transfer fee was substantially justified. The evidence fails to establish that there are special circumstances that would make an award unjust.
The Issue The issue in this proceeding is whether Respondents committed the offenses set forth in the Administrative Complaint and, if so, what penalties should be imposed.
Findings Of Fact General Findings of Fact The Department of Banking and Finance (the Department) is the agency responsible for the administration of Chapter 516, Florida Statutes, the Florida Consumer Finance Act (the Act). At all times material hereto, Respondents were not licensed by the Department as required by the Act. Cash Cow F1 LLC is located at 1362 Lake Bradford Road, Tallahassee. Cash Cow F2 LLC is located at 220 West Tennessee Street, Tallahassee, Florida. Cash Cow F3 LLC is located at 1 West Jefferson Street, Quincy, Florida. Cash Cow F4 LLC is located at 2107 South Bryon Butler Parkway, Perry, Florida. Cash Cow F5 LLC is located at 2002 South Monroe Street, Tallahassee, Florida. Cash Cow F6 LLC is located at 4157 Lafayette Street, Marianna, Florida. Cash Cow F7 LLC is located at 1246 North Jefferson Street, Monticello, Florida. Cash Cow F8 LLC is located at 2705 Northwest 10th Street, Ocala, Florida. Cash Cow F9 LLC is located at 601 Ridgewood Avenue, Holly Hill, Florida. Cash Cow F10 LLC is located at 700 Eglin Parkway Northeast, Fort Walton Beach, Florida. Cash Cow F11 LLC is located at 234A Miracle Strip Parkway, Fort Walton Beach, Florida. Cash Cow F12 LLC is located at 606-A Beal Parkway, Fort Walton Beach, Florida. Cash Cow F13 LLC is located at 146 West John C. Sims Boulevard, Valparaiso, Florida. Cash Cow F14 LLC is located at 750 John Sims Parkway, Niceville, Florida. Cash Cow F15 LLC is located at 618 South Ferdon Boulevard, Crestview, Florida. Respondent Jeffery Swank is the manager of Cash Cow F1 LLC, Cash Cow F2 LLC, Cash Cow F3 LLC, Cash Cow F4 LLC, Cash Cow F6 LLC, Cash Cow F7 LLC, Cash Cow F8 LLC, Cash Cow F9 LLC, Cash Cow F10 LLC, Cash Cow Fll LLC, Cash Cow F12 LLC, Cash Cow F13 LLC, Cash Cow F14 LLC, and Cash Cow F15 LLC (herein after collectively referred to as "Cash Cow".) Cash Cow engaged in Discount Title Voucher transactions (DTV transactions) within the State of Florida. EZ Cash, Inc., a/k/a EZ Cash Inc. of Georgia (EZ Cash) is a Georgia corporation. Respondent Swank is the president of EZ Cash. EZ Cash also engaged in DTV transactions with the State of Florida, as evidenced by corporate checks bearing that name issued to customers and customer checks made payable to that entity. Description of Typical Transaction Cash Cow and EZ Cash received a check from a customer typically in the amount of $122.00. In exchange for the customer's $122.00 check, Cash Cow and EZ Cash tendered its corporate check in the amount of $100.00, which the customer could cash anywhere but at Cash Cow, and provided the customer with a piece of paper entitled "discount title voucher." The 22-dollar difference between the customer's check and the Cash Cow/EZ corporate check is described in the customer agreement as the "purchase price" of the discount title voucher. Originally, the discount title voucher entitled the bearer to a 50 percent reduction in the first month's interest on a new title loan. Subsequently, the discount title voucher entitled the bearer to 100 percent reduction in the first month's interest on a new title loan. Cash Cow/EZ Cash provided checks to a customer in $100.00 increments. Should the customer have wished to receive $200.00, the customer would have received two $100.00 checks from Cash Cow/EZ Cash in return for writing two $122.00 personal checks. The customer agreement further provides "that the personal check used to purchase the 'Discount Title Voucher' may be redeemed by the customer within 15 days of purchase." Essentially, the customer had two options. A customer could present a cashier's check or money order to Cash Cow in the amount of 122 dollars per 100 dollars borrowed on or before the 15th day, or the customer could extend the date the check could be picked up for an additional 15 days by paying an additional 22 dollars per 100 dollars borrowed on or before the 15th day. If the customer elected to extend the date, an additional discount travel voucher was given to the customer. The amount of times that a customer could extend a transaction was unlimited. The annual percentage interest rate charged by Cash Cow/EZ Cash on a typical transaction equates to 535 percent. In some earlier transactions, customers were charged 25 dollars per 15-day period which equates to an interest rate of 608 percent. Respondents Swank and Shovlain participated in the creation of the DTV transaction. Swank possesses in-depth knowledge of the mechanics of the DTV transaction. Respondents Swank, Cash Cow, and EZ Cash designed and implemented the DTV transaction as a replacement for a previous lending scheme invalidated by the Department. The appearance of the present DTV transaction appeared just two months following the cessation of the previous method of operation. The manager of the Perry, Florida store from April of 1996 until July of 1998 was Beth Hotvedt. Although not involved in the creation of the DTV transaction, she heard Swank refer to the DTV transaction as a "check loan." Internal documents of Cash Cow also characterize the DTV transaction as a loan. A "DTV Checklist" was distributed to various Cash Cow/EZ Cash stores before the stores began engaging in DTV transactions, explaining procedures to be followed when engaging in the transactions. The DTV Checklist was included in the Policy and Procedures Manual, the formulation and writing of which involved the efforts of Respondent Swank. Operational Notes distributed to Cash Cow/EZ Cash stores contained statements that DTV's could be re-written "continually" at 25 dollars interest for 15 days. The Notes emphasized that "[a]ny increase in DTV time must be Refinanced!" The 25 dollar amount was later lowered to 22 dollars. His conversational description of the DTV transaction as a "check loan"; the script which he prepared for stores' use which detailed how the DTV transactions should be described to customers so that "check loans" could be made under the guise of discount title voucher sales; and his involvement in the writing of the Policy and Procedures Manual with its DTV check list emphasizing "Receive check for Loan and Interest," provides ample evidence that Swank knew that each DTV transaction was a loan and that the 22 dollars charged to customers was interest. Cash Cow and EZ Cash knew the DTV transaction was a loan. Each entity was aware that the 22 dollars charged per loan was interest. The Policy and Procedures Manual contains the DTV Checklist which emphasizes that checks are received for "Loan and Interest." Operational Notes state that DTV's "can be re-written continually" at 25 dollars "interest for 15 days." Additionally, Swank, Cash Cow's manager and EZ Cash's President, knew the DTV transaction was a loan. Swank, as Cash Cow's manager and EZ Cash's President knew that Cash Cow and EZ Cash were not registered pursuant to the Act and consequently, Cash Cow and EZ Cash knew they were not registered. Swank knew that the annualized interest rate charged DTV customers was greater than 18 percent. He demonstrated his interest calculation abilities at regulatory proceedings in Georgia where he testified in regard to title pawn loan interest contrasted with DTV costs, reciting calculations and noting a savings with DTVs. Again, Swank's knowledge that the annualized interest rate for DTV customers exceeded 18 percent per annum must be imputed to Cash Cow, which he managed, and EZ Cash, of which he was the President. Swank, and thereby Cash Cow and EZ Cash, intentionally charged, contracted for and received interest of more than 18 percent per annum on DTV transactions. Respondents were subject to joint investigation by the Department, the Office of Statewide Prosecution, and the Department of Florida Highway Safety and Motor Vehicles. As a result of this investigation, a joint investigation of David Arrington and Edward Easterly, and companies owned by them, was begun. The joint investigation of Arrington, Easterly, and their companies has not yet concluded or resulted in charges. Consequently, no administrative proceedings have been initiated against them by the Department. The Department has refused licensure to Southern Cash Man, Inc., as a consequence of Arrington's association with the company. A successor corporation, Check Man, Inc., has been licensed by the Department upon review and determination that Arrington is not now associated with that company. Companies owned by Easterly that have applied for licensure have not been licensed. The applications have been withdrawn. The Department has served an Emergency Final Order to Cease and Desist Unlicensed and Usurious Lending Activities (EFO) and an Administrative Complaint for Entry of a Cease and Desist Order, Order of Imposition of Fines and Notice of Rights (Complaint) against International Title Loan, Inc., John Pierce McDonald, and others (ITC). The Complaint in that case is virtually identical to the Administrative Complaint in the instant case. Specific Transactions Kevin Bundage, a four-year resident of Leon County, Florida, engaged in DTV transactions with Cash Cow and EZ Cash. His intent in going to both businesses was to obtain a loan. He evidenced this intent by asking "How do I go about exchanging or getting a loan for a check?" Bundage did not go to Cash Cow or EZ Cash to obtain a DTV and never entered into a title loan with either entity. Gretchen Seigler, formerly known as Gretchen Boggs, is a 32-year resident of Leon County. She engaged in DTV transactions with Cash Cow. Her intent was to obtain a loan. She did not go to Cash Cow to purchase a discount title voucher. In fact, Seigler entered into the DTV transaction with Cash Cow at a time when she did not even have title to a car. Cheryl Winbourne is a 16-year resident of Leon County, Florida. She engaged in DTV transactions with Cash Cow and EZ Cash. Both with Cash Cow and EZ Cash, her intent was to obtain a loan. She engaged in approximately 20 transactions with Cash Cow. She did not intend to purchase a DTV and never entered into a title loan. Janice Sperry is a five-year resident of Leon County, Florida, and engaged in a DTV transaction with Cash Cow. She intended to obtain a loan. She did not go to Cash Cow to purchase a discount title voucher. She never entered into a title loan with Cash Cow or EZ Cash. Gloria Rowls, a 14-year resident of Leon County, Florida, engaged in DTV transactions with Cash Cow and EZ Cash. She intended to obtain a loan but was required to sign the customer agreement and accept the voucher in order to get the money she needed. She does not own a vehicle and never entered into a title loan with Cash Cow or EZ Cash. The universal intent of the foregoing individuals was to obtain a loan from Cash Cow or EZ Cash. None intended to purchase a discount title voucher. Their receipt of a discount title voucher was not germane to their decision. While there were occasional anomalies where an individual actually used the discount title voucher on a title loan, most people involved in a DTV transaction either threw their discount title vouchers in the trash can, gave them to friends, left them on the counter, or simply accepted the voucher as a requirement to getting the loan. During three months, August 1997 to October 1997, the Cash Cow/EZ Cash store located on Tennessee Street in Tallahassee, Florida, engaged in at least 4,634 DTV transactions. In 1997 alone, the Perry store engaged in at least 1,859 DTV transactions. These two locations therefore engaged in a total of at least 6,493 transactions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Banking and Finance enter a Final Order to Cease and desist Cash Cow, EZ Cash and Swank from violating Chapter 516, Florida Statutes, and from further efforts to collect moneys allegedly due to Cash Cow, EZ Cow or Swank on DTV transactions which have not been repaid by the customer; Fine Cash Cow, EZ Cash and Swank, jointly and severally, the sum of $1,298,600.00. DONE AND ENTERED this 29th day of September, 2000, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2000. COPIES FURNISHED: Robert Alan Fox, Esquire Paul C. Stadler, Esquire Assistant General Counsels Department of Banking and Finance Suite 526, The Fletcher Building East Gaines Street Tallahassee, Florida 32399-0350 Richard M. Powers, Esquire 315 South Calhoun Street, Suite 308 Tallahassee, Florida 32301 Honorable Robert F. Milligan Comptroller Office of the Comptroller The Capitol, Plaza Level 09 Tallahassee, Florida 32399-0350 Robert Beitler, Acting General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350
The Issue The issue to be determined in this proceeding is whether Respondents Wilson and Son Sales, Inc. (Wilson), and Ohio Casualty Insurance Company, as surety, are indebted to Petitioner for certain Florida-grown agricultural products.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of several vegetable crops in Hardee County. Wilson is a dealer in agricultural products. More specifically, Wilson operates an agricultural broker business in Plant City. Wilson’s surety is Ohio Casualty Insurance Company. Although Wilson has written contracts with some producers, Wilson does not have written contracts with all producers. In the absence of a contract, the terms of Wilson’s broker services are almost always the same; that is, Wilson gets a commission of 10 percent on the sale of the produce and $.35 per box for palletizing and pre-cooling the produce, in return for which Wilson makes a reasonable and good faith effort to sell Petitioner’s produce for the best price. Petitioner contacted Wilson in January 2007, about bringing flat beans to Wilson to sell. Wilson expressed interest and informed Petitioner about Wilson’s standards terms as described above. These terms were agreeable to Petitioner and he brought the beans to Wilson later that month. Although Petitioner and Wilson had no written contract, the parties’ mutual understanding of the terms of their agreement created an enforceable oral contract. Wilson sold Petitioner’s beans and no dispute arose from this first transaction. The parties’ subsequent transactions for other produce were undertaken pursuant to the same oral contract terms. Because Wilson works on a commission basis, it is generally in Wilson’s self-interest to sell growers’ produce for the best price. Petitioner contacted Robert Wilson, Wilson’s owner, by telephone in February 2007, and informed Wilson of his plans to grow wax beans and “hard squash.” It was not stated in the record whether all three varieties of hard squash later grown by Petitioner, butternut squash, acorn squash, and spaghetti squash, were discussed by Petitioner and Robert Wilson during their February 2007 telephone conversation. A major dispute in the case was whether the parties’ February discussion about hard squash created some obligation on the part of Wilson beyond the oral contract terms described above. Petitioner claims that Wilson encouraged him to plant the squash and that Petitioner would not have planted the squash otherwise. Petitioner never made clear, however, what additional obligation was created by Robert Wilson’s encouragement beyond the obligation to accept delivery of and make good faith efforts to sell Petitioner’s squash at the best price. Petitioner did not use the word “guarantee,” but his claim seems to be that Wilson became obligated to guarantee that the squash would be sold for a price close to the price published in the Columbia (South Carolina) Market Report, a periodic publication of produce prices. Such an obligation on the part of a broker is contrary to the general practice in the trade. Petitioner’s evidence was insufficient to prove more than that Robert Wilson thought he could sell Petitioner’s squash and had a genuine interest in acting as broker for Petitioner’s squash. The evidence was insufficient to prove the existence of a contractual guarantee that Wilson would obtain a certain price for Petitioner’s hard squash or do more than was promised with regard to the beans that Wilson had sold for Petitioner; that is, to try to sell the produce for the best price. When Petitioner’s wax beans were picked in late April, he brought them to Wilson to sell. No dispute arose regarding the sale of the wax beans. Petitioner brought squash to Wilson in five deliveries between May 12 and May 29, 2007. Petitioner said that on one of these deliveries, he had to leave the boxed squash in the parking lot of Wilson’s facility because there was so much cantaloupe that had been delivered ahead of him. Petitioner says he was told by a Wilson employee that the squash would not be put in the cooler. Petitioner thinks Wilson was more interested in moving the cantaloupe than the hard squash. Petitioner thinks his squash was not put in the cooler or was put in too late. Wilson denies that Petitioner’s squash was not put into the cooler or was put in late. Robert Wilson claims that he made many calls in an effort to sell Petitioner’s squash, but he could not find interested buyers for all of the squash because (1) the demand for hard squash dried up, (2) some of Petitioner’s squash was of low quality, and (3) the squash began to spoil. Petitioner denied these allegations. Petitioner received invoices and other paperwork from Wilson showing that Wilson sold Petitioner’s first delivery of 490 boxes of acorn squash for $10.18 per box. It sold Petitioner’s second delivery of 519 boxes of acorn squash for $2.08 per box. For Petitioner’s third delivery of 110 boxes of acorn squash and 240 boxes of spaghetti squash, Wilson “dumped” the acorn squash by giving it to away for free to the Society of St. Andrews food bank, and sold the spaghetti squash for $5.15 per box. Wilson sold petitioner’s fourth delivery of 279 boxes of butternut squash for $.55 per box.1 Competent substantial evidence in the record established that it is a regular occurrence for agricultural products awaiting sale to decay and become unsellable, and for the broker to dump the products in a landfill or give the products to a charitable organization and then provide the grower a receipt for tax deduction purposes. It was undisputed that Wilson did not notify Petitioner before disposing of his squash. Petitioner claims he should have been notified by Wilson if the squash was beginning to spoil. However, Petitioner did not prove that prior notification was a term of their oral contract. Petitioner claims further that the federal Perishable Agricultural Commodities Act required Wilson to notify Petitioner before dumping the squash and to have the squash inspected to determine whether, in fact, it was spoiled. As discussed in the Conclusions of Law below, this federal law is not applicable. Competent substantial evidence in the record established that the market for agricultural products fluctuates and, at times, can fluctuate rapidly. For hard squash, which is normally prepared in an oven, the market demand can drop dramatically due to the onset of warm weather simply because people tend not to cook hard squash dishes in warm weather. Petitioner’s squash was being marketed in May, which means the beginning of warm weather for most areas of the United States. This fact supports Wilson’s claim that the demand for hard squash had been good, but fell rapidly just at the time Wilson was trying to sell Petitioner’s squash. The problem with the claims made by Petitioner in this case is simply one of insufficient proof. It is not enough for Petitioner to offer theories about what he thinks happened or to raise questions which are not fully answered. Petitioner had no proof that his squash was not put in Wilson’s cooler, that his squash did not begin to decay, that the demand for hard squash did not fall rapidly, that Wilson did not make reasonable efforts to sell the squash, that Wilson had willing buyers for Petitioner’s squash at a better price, or that Wilson sold squash from other growers at a better price. Petitioner’s evidence for his claims consisted primarily of market price reports that he contends show the approximate price Wilson should have gotten for the hard squash. Market price reports have some relevance to the issues in this case, but competent evidence was presented that the prices quoted in the publications are not always reliable to indicate the price a grower can expect to get on any given day, because there are factors that cause the published market price to be an inflated price (and applicable to the highest grade of produce) and because the market price can change rapidly with a change in demand for the product. The oral contract between Petitioner and Wilson required Wilson to try to get the best price for Petitioner’s squash, not some particular price appearing in a particular market price report. Petitioner did not show that Wilson got a better price for hard squash of equal quality, or that other brokers in the area got a better price for hard squash of equal quality at the times relevant to this case. Petitioner’s evidence was insufficient to prove that Wilson did not make a reasonable and good faith effort to sell Petitioner’s squash at the best price.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order dismissing Petitioner’s amended claim. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2008.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing and regulating the practice of real estate salesmen and brokers by the various provisions of Chapter 475, Florida Statutes. Included in those duties and enforcement authorities is the duty to investigate conduct by realtors allegedly in violation of Chapter 475, and related rules, and prosecuting administrative proceedings filed as a result of such investigations in order to seek imposition of disciplinary measures against the licensure status of miscreant realtors. The Respondents, at all times pertinent hereto, were licensed real estate brokers or salesmen in the State of Florida, having been issued the license numbers depicted in the Administrative Complaint. Respondent Hurbanis last was issued a license as a broker/salesman located at Sanibel Realty, Inc., Sanibel, Florida. Respondent Pauline Seely was last licensed as a broker/salesman located at VIP Realty Group, Sanibel, Florida. Respondent John M. Parks was licensed as a broker/salesman, last issued for a location at The Realty Shoppe of Lee County in Fort Myers, Florida. Respondent Jean Maxwell was licensed as a broker/salesman located at Suite 205, 1619 Periwinkle Way, Sanibel, Florida. At all times pertinent hereto, the Respondents were licensed and operating in the real estate brokerage business in the employ of VIP Realty Group, Inc., a licensed corporate real estate broker. Concerning the charges in Count I, one Eric Rosen, a real estate salesman employed by VIP Realty Group, Inc., the same firm employing Respondent Pauline P. Seely, obtained Nicholas Fontana and John Priebbe as purchasers of a certain piece of property by sales contract which was owned by Clarence Liebscher and Joseph Kubosch. The sales contract was entered into June 3, 1983, and reflected a purchase price of $315,000, including the sale of certain furniture and other personal property. The complaint alleges that former Respondent Rosen and Respondent Hurbanis, together with the purchasers and sellers, conspired to enter into a second bogus sales contract (so called "double contracting") substantially similar to the first contract, except the sales price was shown to be $350,000 and the terms concerning sale of furniture and other personalty was deleted. It is alleged that this contract was prepared by Rosen under the direction and approval of Respondent Hurbanis for the purpose of obtaining a mortgage loan from a lending institution in an amount greater than the normal percentage of the sales price that the banking laws and policies of such lenders provide as the maximum amount of mortgage financing which can be obtained on a given piece of property. It is alleged that these Respondents were thus attempting to obtain a loan commitment in an amount greater than could have been obtained had the actual sales price of $315,000 been revealed to the lender. The bogus contract showing the $350,000 sales price was allegedly submitted to the lender, AmeriFirst Savings and Loan Association, without the Respondents notifying AmeriFirst that the actual sales price was $315,000. Although witness Rosen for the Petitioner, testified that he believed the contracts involved in this count had been discussed with Mr. Hurbanis he could not say for certain and could not recall the conversation. In fact, another Petitioner witness, Brandy Vallois, stated several times that Mr. Hurbanis was on vacation during the time that the contract was negotiated, executed and submitted to the lender and that, although Respondent Hurbanis was the office manager at VIP Realty Group at the time, others were serving in his stead at the time he was on vacation (the time of the incident alleged in Count I). Although the Department elicited testimony to the effect that seminars had been given where the Respondent, as well as other realtors, had discussed "creative financing," there was no testimony or other evidence that such lectures by the Respondent or others advocated a policy of "double contracting" or in effect deluding lenders into lending more money for real estate purchases than they normally would have if true purchase prices were disclosed. In any event, both the seller and buyer were aware of the situation concerning this transaction and the lender was never deceived or misled because in fact the loan never closed and no funds were disbursed. There was no evidence that the true particulars of this transaction were not disclosed to the lender. Count II Count II concerns a transaction in which Respondent John Parks was the listing and selling salesman and Respondent Hurbanis was the office manager with the same real estate firm. Allegedly, Respondent Hurbanis directed and approved Respondent Parks' preparation of two sales contracts on or about December 16, 1982, calling for the purchase and sale of certain real estate by Mike Volker from Dr. Robert Pascotto and Gaspar Turanna. Both contracts were similar and pertained to the same parcel of property, but one reflected an actual sales price of $149,000, whereas the allegedly bogus, second contract reflected a total sales price of $157,000. It is thus alleged that these two Respondents conspired with the purchasers and sellers to enter into the higher priced, bogus contract for the purpose of obtaining a mortgage loan commitment principal amount at a greater percentage of the sales price than could have been obtained if the actual sales price had been disclosed to the lender. It is alleged that these two Respondents submitted the bogus contract reflecting the $157,000 false sales price together with loan application documents to First Federal Savings and Loan Association of Fort Myers without informing that institution that the actual sales price was $149,000. No competent, substantial evidence was offered, however, to show that Respondent Parks was anything other than the listing salesman. It was not established that he drafted the contract nor that he submitted either contract to the lender. Concerning Respondent Hurbanis, although it was shown that he was the office manager at the time of the incident, it was not established that he directed or approved the drafting of either contract, directed or approved the submission of either contract to the named lender nor that he was involved in the negotiation or closing stage of the transaction in any way. In fact, although the two contracts show differing purchase prices, neither contract depicts any different amount to come from mortgage financing by First Federal. In fact, both contracts reflect that a mortgage would be obtained from First Federal in the amount of $125,600. Nothing any different was disclosed to First Federal. The difference comes in a differing deposit amount held in escrow by VIP Realty Group, Inc., according to the terms of the contract. One contract, that with the lower purchase price, reflects $7,000 in deposit money toward the purchase and the second contract reflects $15,000 deposit money held toward the purchase. This accounts for the $8,000 difference in the amount of the two contracts, but, in any event, the amount to be obtained by mortgage funds from First Federal was the same on each contract. There was no evidence to prove that the deposit amounts depicted on either contract were bogus or other than the result of bona fide arm's length negotiations between the parties. In any event, there was no evidence that First Federal or its lending officers were not aware of any of the particulars in the transaction. There was no showing that that the lender relied on either contract to its detriment. Count III Respondent Pauline Seely, as listing salesman and owner of certain real property, with former Respondent (since dismissed) James O'Neill as selling salesman, and allegedly with Respondent Charles Hurbanis' direction and approval, prepared and obtained execution of two sales contracts on or about December 30, 1982, for the purchase and sale of her real property by Thomas and Sheila Floyd. Both contracts were substantially similar and pertained to the same parcel, but one contract reflected an actual earnest money deposit of $8,660 and a purchase money mortgage in the amount of $24,000, whereas the supposed bogus, second contract reflected a total earnest money deposit of $14,000 and a purchase money mortgage in the principal amount of $18,660. It is alleged that the Respondents then submitted this to the lending institution for the purpose of obtaining a greater percentage of the sales price in mortgage funds than could have been obtained had the actual sales price, terms and conditions been revealed to the lender. In fact, testimony of record and Respondent Seely's Exhibit 2 reveals that the lender was furnished all documents with regard to this transaction which revealed to the lender, as the loan officer involved stated in the letter constituting this exhibit, that the buyers and the seller had agreed that the seller would take back a second mortgage in the amount of $24,000 and that a contract addendum existed (which is in evidence) reflecting this second agreement. Thus, AmeriFirst, the lender, did in fact have a copy of the agreement stating that the seller would hold the second mortgage for the above amount and that AmeriFirst was aware of all details concerning the transaction. In point of fact, both contracts in evidence, one of which reflects a purchase money mortgage of $18,660 which the seller would hold and which reflects that $7,000 would be paid in cash to the seller at the time of contracting, and the second contract, are identical as to purchase price. The second contract also shows a purchase price of $125,000, the difference being essentially that the second contract shows the $24,000 purchase money mortgage amount instead of the figure of $18,660 shown on the first contract. Both contracts merely call for assumption of a mortgage already made in favor of AmeriFirst in the amount of $92,340. There is no evidence that any additional funds are being sought from AmeriFirst at all. There was no evidence that any action by the Respondents would result in any impairment of the security of AmeriFirst's first mortgage lien on the premises. The purchase money mortgage referenced in the testimony and evidence, regardless of its ultimate amount as that relates to the manner in which the total purchase price would be paid the seller, would, in all events, be a subordinate mortgage lien and it is difficult to see how AmeriFirst could rely on either contract to its detriment, even had it not known of one of the contracts. They both represented a purchase price of $125,000 and merely varied as to ways the purchase price would be paid, over and above the $92,340 outstanding first mortgage loan (which was to be assumed). In all events, however, AmeriFirst and its lending officer was fully aware of all details of this transaction and had no objection to the manner in which the transaction was to be closed and disbursements made, nor to the conditions of the assumption of its mortgage. The so called "double contract" that Ms. Seely is alleged to have entered into was shown thus to be an innocent modification of terms of the original sales contract. No wrongdoing or concealment was shown to have been committed by Respondent or any person who participated in the sale of Pauline Seely's property to Thomas and Sheila Floyd. Count V Concerning Count V, it is alleged that Respondents Seely, Parks and Hurbanis obtained two sales contracts on or about January 24, 1983, for the purchase and sale of certain real property by Computer Maintenance Corporation, purchaser, from James and Loretta Cottrell as sellers. Both contracts pertain to the same piece of real property. Both contracts showed a "purchase price" item of $310,000. One contract, however, actually reflected a total price of $344,000, arrived at by combining a $279,000 "90 percent mortgage loan" with a $60,000 purchase money mortgage and a $5,000 cash deposit. This contract contains a notation at the bottom that the "seller agrees that a separate contract for purchase will be given to the Savings and Loan for loan approval." The other contract related to this sale lists a total purchase price of $310,000 only, with a $5,000 deposit noted with no purchase money mortgage being shown, rather there is shown, in addition to the $279,000 90 percent mortgage loan, a balance of $26,000 cash being paid to the seller. This contractual situation is somewhat mysterious and it may indeed be that an attempt was made to conceal the $60,000 purchase money mortgage on the first contract and make it appear to the lender that the purchaser was actually putting up an additional $26,000 in cash at the closing as an inducement to obtain the principal first mortgage of $279,000 from Naples Federal Savings and Loan, AmeriFirst or some other lender. In point of fact, however, the witness, Ms. Heavener, from AmeriFirst indicated that the bank did not act upon the advice contained on the face of the contract, but rather loaned a percentage of their own independent appraisal value and thus did not act to its detriment upon any information contained on the face of either contract. She indicated that that lender was fully informed about all aspects of this transaction in any event. The evidence does not reflect that Mr. Hurbanis nor Ms. Seely had any part in drafting the contract nor presenting it to the lender. Seely's only involvement was as listing agent, that is, the realtor who obtained the listing from the sellers. There is no evidence to indicate that she participated in any fashion in the sale of the property, the negotiations, nor the drafting or presenting of the contracts. No evidence was offered to show for what purpose, whether illicit or innocent, the two different contracts were drafted. In any event, Ms. Seely was not involved in the preparation of the contracts. Mr. Hurbanis was not connected by any competent, substantial evidence, with any activity concerning the drafting of the contracts nor the presenting of them to the lender. A representative of the lending institution testified that she did not recall any discussions at all with Mr. Hurbanis concerning this transaction and upon cross-examination clearly indicated that the lending institution had protected itself against a "double contract" situation by reliance upon its own independent appraisal in making its lending decision, rather than the contract or contracts themselves. Count VI In this count, it is alleged that Hurbanis obtained a sales contract on January 22, 1983, between T N T Partners, a general partnership as seller and Christopher Smith as purchaser. The pertinent terms of the sale were $30,000 total purchase price, $3,000 deposit and $4,500 cash to be allegedly furnished at closing, together with a $22,500 new note and mortgage on the property. It is alleged, in essence, that Respondent Hurbanis falsely represented to Naples Federal Savings and Loan Association that the purchaser would pay $4,500 cash at closing. The transaction closed on April 15, 1983, but instead of the cash, the seller took back a purchase money mortgage in the amount of $4,500. Thus, the issue here is whether the $4,500 mortgage was properly disclosed to the lender. The evidence is silent as to any connection of Mr. Hurbanis with this transaction. In any event, however, it would appear from the face of the contract itself that the lending institution could not have been deceived by the parties to the contract nor any realtor involved, since the contract itself does not require cash in the amount of $4,500 but rather requires "cash or equivalent at closing." Thus, even if there had been a participation by Respondent Hurbanis in this transaction, which was not proven, it is impossible to detect any concealment or deception since the words "or equivalent" would clearly not preclude the use of a purchase money mortgage in the amount of $4,500 as consideration for this portion of the purchase price, rather than actual cash. Indeed, any other thing of equivalent value could have been used as consideration in this particular without violating the terms of the contract, of which the lender clearly had notice.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the evidence of record, it is, therefore RECOMMENDED that the Administrative Complaint be dismissed in its entirety as to all Respondents. DONE and ORDERED this 7th day of October, 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0140 Petitioner: Petitioner filed no Proposed Findings of Fact and Conclusions of Law. Respondent Hurbanis: The Proposed Findings of Fact by Respondent Hurbanis are subsumed in those made in this Recommended Order to the extent that that Respondent's submissions constitute bona fide Proposed Findings of Fact. In the main, the "Findings of Fact" in the Post-Hearing Submission by this Respondent constitute largely recitations of evidence and testimony, discussion of the weight thereof, inextricably intermingled with Proposed Findings of Fact which cannot be separately ruled upon because of multiple factual findings, legal argument and evidence discussion intertwined in the same paragraph. Respondents Maxwell's and Seely's Proposed Findings of Fact: 1-12. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John P. Milligan, Jr., Esquire Suite 201, Royal Palm Square 1400 Colonial Boulevard Fort Myers, Florida 33907 Kenneth G. Oertel, Esquire Suite C 2700 Blair Stone Road Tallahassee, Florida 32301 Johnny W. Parks c/o The Realty Shoppe of Lee County 12635 Cleveland Avenue Fort Myers, Florida 33907 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent Consolidated Services, Inc. (CSI) owes Petitioner $20,674.50 for peppers purchased from Petitioner, as alleged in Petitioner's Complaint.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of peppers and other produce. It owns and operates Goodson Farms in Balm, Florida, which is located on the west coast of the Florida peninsula. At all times material to the instant case, Don and Jan Goodson have been the owners of Petitioner. At all times material to the instant case, Steve Macholl has been Petitioner's sales manager. At all times material to the instant case, Craig Sovine has been employed by Petitioner, "handl[ing, along with Mr. Macholl] sales[,] shipping[,] receiving," and related paperwork. At all times material to the instant case, Mr. Macholl and Mr. Sovine have had the authority to enter into agreements on behalf of Petitioner to sell produce Petitioner grows on its farm. At all times material to instant case, it has been Petitioner's practice to sell on only a cash basis, and not to extend credit, to any unbonded and unlicensed dealer who is not listed in either the "Blue Book" or "Red Book" (both of which, among other things, provide credit rating information) and with whom it does not have an established relationship. CSI is a Florida-licensed dealer in agricultural products. At all times material to the instant case, CSI had offices in Nogales, Arizona and Pompano Beach, Florida, which is located on the southeast coast of the Florida peninsula. At all times material to the instant case, Robert Allen has been the owner of CSI. At all times material to the instant case, Harry Guice was employed as a sales representative by CSI. As a sales representative, Mr. Guice had the authority to enter into agreements on behalf of CSI to purchase produce. Mr. Guice no longer works for CSI. In or about April of 1998, Mr. Guice, acting in his capacity as CSI's sales representative, visited Goodson Farms to discuss with Petitioner's representatives, Mr. Macholl and Mr. Sovine, the possibility of CSI obtaining peppers from Petitioner. (Prior to this time, CSI had not had any direct business dealings with Petitioner.) Mr. Guice was accompanied on his visit by John Haire. Mr. Haire owned and operated a business, Signal Produce, from his home in Appollo Beach, Florida, which was located a short distance from Goodson Farms. Although there is a conflict in the evidence, the more credible evidence establishes that the following occurred during and after Mr. Guice's visit. Mr. Guice and Mr. Haire introduced themselves to Mr. Macholl and Mr. Sovine and presented them with their business cards. Mr. Guice's business card reflected that he was a sales representative for CSI. On the back of the card, Mr. Guice wrote down his home telephone number. Mr. Haire's business card reflected that he was with Signal Produce. Mr. Guice told Mr. Macholl and Mr. Sovine that he was familiar with Petitioner's product because he had purchased Goodson Farms' produce (on behalf of CSI) from Don Monteef, who, Mr. Guice related, had recently passed away. (Mr. Monteef had been, like Mr. Haire, unbonded, unlicensed and not listed in either the "Blue Book" or "Red Book." Petitioner, at the outset, had done business with Mr. Monteef on a cash basis exclusively, but after having established a business relationship with him had allowed him to defer payment until "two or three days" after he "picked up" his order.) Mr. Guice advised Mr. Macholl and Mr. Sovine that CSI was interested in purchasing product directly from Petitioner. He further indicated that Mr. Haire would assist him in making such purchases for CSI by visiting Goodson Farms and inspecting the produce available for purchase. After determining that CSI had an exemplary credit rating, Mr. Macholl and Mr. Sovine informed Mr. Guice that Petitioner would sell to CSI on credit. When Mr. Guice indicated that CSI would make payment within seven to ten days, Mr. Macholl and Mr. Sovine told him that CSI would receive a discount if payment was actually made within that time frame. During the period beginning April 20, 1998, and ending May 26, 1998, CSI, through Mr. Guice, verbally agreed to purchase from Petitioner, and Petitioner, through its representatives, verbally agreed to sell to CSI (FOB), five separate loads of peppers for a total price of $20,674.50 ($12,515.50 for a load purchased and sold on April 20, 1998; $2,561.00 for a load purchased and sold on April 29, 1998; $2,556.00 for a load purchased and sold on May 23, 1998; $612.00 for a load purchased and sold on May 25, 1998; and $2,430.00 for a load purchased and sold on May 26, 1998).2 All five loads were delivered to and accepted by CSI's agents (the truck drivers Mr. Guice dispatched to Goodson Farms). On one occasion (the May 23, 1998, delivery) Mr. Haire picked up the peppers from Goodson farms for CSI. For each transaction, Petitioner prepared (in triplicate) a "manifest" ("manifest" number 0997 for the April 20, 1998, transaction; "manifest" 1089 for the April 29, 1998, transaction; "manifest" number 1551 for the May 23, 1998, transaction; "manifest" number 1578 for the May 25, 1998, transaction; and "manifest" number 1601 for the May 26, 1998, transaction). The "manifest" indicated, among other things, the date of the transaction; the number of peppers sold; CSI's status as the purchaser of these peppers; the CSI purchase order number used to make the purchase (2311 for the April 20, 1998, purchase; 2334 for the April 29, 1998, purchase; 2440 for the May 23, 1998, purchase; 2462 for the May 25, 1998, purchase; and 2327 for the May 26, 1998, purchase); the name of the trucking company and driver picking up the load for CSI, the tag number of the driver's truck; and when the load was picked up. The "manifest" was presented to the truck driver picking up the load for the driver's signature. After signing the "manifest," the driver was given a copy as a receipt. Mr. Macholl thereafter added price information to the "manifest" to reflect the amount that, pursuant to the parties' verbal agreement, CSI owed Petitioner for the peppers in question. He then sent a copy of the "manifest" (with this additional information) to CSI's Pompano Beach office. At all times material to the instant case, documents received at CSI's Pompano Beach Office that were labeled as "manifests" were placed in the mailboxes of the CSI sales representatives responsible for the transaction. At no time prior to the commencement of the instant action did CSI advise Petitioner that it disputed any of the information contained in the above-described "manifests." CSI received and paid invoices from John Haire/Signal Produce dated April 26, 1998, April 30, 1998, May 23, 1998, and May 25, 1998, seeking payment for peppers purportedly purchased by CSI with purchase order numbers 2311 (for $9,955.50), 2334 (for $2,406.00), 2440 (for $3,337.50), and 2462 (for $660.00), the same purchase orders that Mr. Guice gave Petitioner when he placed orders, on behalf of CSI, with Petitioner for the peppers that were the subject of the April 20, 1998, April 29, 1998, May 23, 1998, and May 25, 1998, transactions described above. CSI has not yet paid Petitioner for the peppers that were the subject of these transactions; nor has it paid Petitioner for the peppers that were the subject of the May 26, 1998, transaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the that the Department enter a final order (1) finding that CSI is indebted to Petitioner in the amount of $20,674.50, (2) directing CSI to make payment to Petitioner in the amount of $20,674.50 within 15 days following the issuance of the order, and (3) announcing that if payment in full of this $20,674.50 indebtedness is not timely made, the Department will seek recovery from NYSC, CSI's surety. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999.
