Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Ralph Cosio, Jr., is a white male born on April 1, 1939. On November 1, 1965, he began employment with respondent, Metropolitan Life Insurance Company (MLIC), a large insurance company that offers various personal and group insurance lines throughout the United States. The parties have stipulated that MLIC is an employer within the meaning of the Florida Human Rights Act. Cosio was assigned to MLIC's Tampa, Florida office where he spent his entire tenure with the company. He initially sold personal life insurance, but some fifteen months later Cosio was promoted to the position of sales manager of the Tampa office, a position he held until January 1978. During this period, Cosio's performance was exemplary. In January 1978, and at his own request, Cosio was transferred to group sales, and specifically to the "Met 50 Plus" plan, a new MLIC marketing concept which targeted employers with fifty to one hundred and ninety-nine employees. In his new position as a group sales representative, Cosio dealt with MLIC agents and independent brokers who requested quotations for group rates for businesses which qualified under the Met 50 Plus plan. Cosio continued in the area of group sales for the next ten years. He was highly successful during the years 1978 through 1982 when he was rated among the top ten to twelve salespersons nationwide in the Met 50 Plus plan and named to the Leaders Conference, a MLIC award level for top producers. When he began in group sales, Cosio was a sales representative. In early 1983 Cosio was named senior group representative and in January 1984 was promoted to territorial sales director (TSD) for the southeastern region of the United States. In the latter position, of which there were only six nationwide, he supervised Met 50 Plus group sales in some seven or eight states. He held this position until the last half of 1986. During the period 1979 until late 1986 there were no negative evaluations, memoranda or comments concerning petitioner. In the latter part of 1986 Cosio was reassigned from the position of TSD to a senior group sales representative, and was concurrently assigned to market a new group insurance program for employers with more than twenty-five employees but less than fifty. Whether Cosio did this voluntarily is not of record, but he did desire to eliminate the extensive traveling required of a TSD and to remain in Tampa. In any event, the new program was known as "25 to 49 Lives," was considered an expansion of the Met 50 Plus program, and targeted smaller employee groups. Beginning in late 1986 and continuing through 1987, Cosio specialized in selling MLIC products to the "29 to 49 Lives" groups within the State of Florida. It is noted that MLIC had never before actively marketed its product to that size employer and was now doing so only in a few test sites across the country, including Florida. However, in order to assist Cosio in increasing his sales and making the new program a success, Cosio was given the exclusive right to sell the new product in the entire State and to deal with both independent brokers and MLIC agents. When Cosio transferred back to group sales, he was replaced as TSD by Lou Orsi. Both Orsi and petitioner agreed that the product for 25 to 49 Lives was not competitively priced and that its pricing structure made sales more difficult. As a consequence, Cosio was authorized to sell insurance at a rate 20% to 25% below the MLIC prices charged in other states. Even so, the anticipated volume of sales in Florida never materialized. However, in 1987 Cosio received some limited recognition from MLIC for his efforts, and his performance that year was rated satisfactory. In January 1988, the 25 to 49 Lives program was terminated in all states, including Florida, and Cosio returned to marketing the Met 50 Plus product, which is the same product he had sold from 1979 through 1983. MLIC has not attempted to market the "25 to 49 Lives" product since that time. On November 1, 1987 Harold Sowders, who is a year or so older than Cosio, replaced Orsi as TSD of the southeastern region. Just prior to that, Charles Cummings, who is seven years younger than petitioner, became managing group sales representative in the Tampa office and was Cosio's immediate supervisor. Sowders began reviewing the sales performance of employees in the region, including Cosio, and concluded that Cosio's 1987 production was unsatisfactory. He reached this conclusion because, even though Cosio had submitted a number of proposals to underwriting for quotations, he had only closed four sales for the entire year. Moreover, Cosio's net result for 1987 was a minus $119,000. This meant that after the new business generated by the four sales was subtracted from previous business that was not renewed, the net result was a minus $119,000 on a premium basis. Sowders concluded that these results were unsatisfactory given Cosio's long tenure with MLIC, his statewide exclusivity for selling the product and the 25% discount in price previously established. In January 1988 Cosio was offered the option of returning to the Met 50 Plus plan or remaining in the 25 to 49 Lives program (which was terminated shortly thereafter). Cosio elected to return to the Met 50 Plus program and was assigned to share the Tampa Bay area with Cummings. In addition, Cosio was given exclusive sales rights for that product in an area north of Tampa. Although Cosio and Cummings both complained that the Tampa area was too small for two agents, Sowders did not agree with this assessment and made no changes. Also, in late 1987, Cummings informed Cosio that his sales objectives for 1988 were fourteen new cases (closed sales) and $1.5 million in premiums. Shortly after his return to the mainstream program, Cosio requested the opportunity to sell the product in the Miami area while working out of the Tampa office. This was because Cosio had experienced his most successful sales effort in the Miami area during the years 1979 - 1983, partly due to the fact that he is fluent in Spanish. This request was denied by Sowders on March 4 on the ground MLIC intended to establish a full time manager in the Miami area, something Sowders did shortly thereafter. On March 4, 1988 Sowders informed Cosio by memorandum that he should produce twenty-three proposals and three sales by April 1, 1988. According to Sowders, this was consistent with the annual sales objective of fourteen per year for group agents given to Cosio by Cummings in late 1987. Cosio was also told there must be "an immediate and substantial improvement" in his sales activities. This admonition was placed in the memorandum because Cosio had generated only three underwriting submissions, one formal proposal and no sales (based on 1988 activities) during the first two months of 1988. However, Cosio did close one sale relating to a proposal submitted in December 1987. Finally, Cosio was told to develop a written "business plan" setting forth his goals and means for obtaining the prescribed sales objectives for the remainder of 1988. Between March 4 and April 15, 1988, Cosio had no activity whatsoever in terms of submissions, proposals or sales. Sowders relayed information concerning this lack of activity to Barry McNamara, national sales director. On March 30, Cummings reminded Cosio of Sowders' requirement that Cosio prepare a written business plan. In response, Cosio prepared a letter on April 4 questioning whether the Tampa Bay area could support two salespersons. Cummings again requested a business plan on April 7. On April 21, Cosio submitted a one- page business plan to Cummings who then advised Sowders that he was dissatisfied with the response. Sowders also considered the plan to be "woefully short" of a professional strategy. In July 1988 Sowders reduced Cosio's 1988 sales objectives from fourteen sales to ten sales with annual premiums of $1 million. Up to that point, Cosio had no closed sales relating to 1988 activities. Until June, Cosio was authorized to deal with both MLIC agents and independent brokers. The record establishes that "selling the brokers" was a better market than selling to MLIC agents because brokers are more specialized in group sales. In addition, Cosio had been given exclusive rights (except for the Miami area) to deal with MLIC agents in Florida, who numbered between three and four thousand, and he was authorized to sell the complete portfolio of products, including the multi-option sale to market through agents. Even so, during the first five months of 1988 he submitted only three proposals. This was far below the number of proposals typically needed to generate sufficient sales to reach the prescribed sales objectives. After June, Cosio was limited by Sowders to dealing only with MLIC agents, and not independent brokers, which admittedly made sales more difficult. However, Sowders' thinking was that Cosio had dealt with MLIC agents for many years and had previously been given the exclusive right to deal with agents in all areas of the state, except the Miami area. Thus, he concluded that Cosio would not be severely hampered by the restriction. On August 2, 1988, Cummings wrote a letter to Cosio advising that Cosio's sales performance was extremely disappointing and that there must be an immediate and substantial improvement. Further, Cosio was warned that if he failed to meet his minimum requirements, he would be issued a final warning with a view towards terminating his employment. By September 1988 Cosio's performance had not materially improved. He did make two sales in August 1988 but his year to date proposals numbered only seven. Sowders accordingly established a fourth quarter sales objective of three. On October 22, 1988, Cummings again wrote to Cosio informing him that he had failed to meet his objectives. Also, Sowders discussed Cosio's poor performance with him on no less than four occasions during the year and repeatedly informed him that his performance was unacceptable. Based upon Cosio's prospect calls, sales and number of hours worked, Sowders reached the conclusion that Cosio had not made a good faith effort to sell insurance in 1988. In mid-1988 MLIC made a decision to acquire the group insurance business of Allstate Insurance Company and to merge MLIC's group business with Allstate's group business and that of Health Care Network, a MLIC subsidiary. According to the national sales director, this resulted in a "combined book of business ... not large enough to support the sales force of those three agencies." Consequently, MLIC management declared a surplus of eighteen employees in the Met 50 Plus Plan, which meant that it intended to terminate, relocate or offer other positions to eighteen MLIC group employees. A decision to surplus various Allstate and Health Care Network employees was also reached. Faced with the prospect of deciding which eighteen employees would be declared surplus, MLIC group sales management began an evaluation process of all current Met 50 Plus employees. This required each supervisor, such as Cummings, to evaluate the performance of all employees under his supervision during the prior two or three year period and to submit that evaluation to the TSD. After these evaluations were reduced to writing they were discussed at several meetings attended by McNamara and the TSDs in the fall of 1988. As national sales director, McNamara made the final decision but relied on the recommendations of the TSDs. The evaluations rated each of the approximately fifty MLIC salespersons in the categories of "sales ability", "sales record" and "management skills" by giving them a plus, minus, not applicable or question mark. The ratings for Cosio were made by Cummings, Cosio's immediate supervisor, and approved without change by Sowders. Under the evaluation process employed by McNamara, the employees with the highest performance ratings were to be retained while those with lower performance ratings would be declared surplus. Cosio was the only person of the more than fifty evaluated who was given a negative rating in all three categories. This meant he was considered to be unacceptable in all categories. Cummings reached this conclusion based upon the fact that Cosio's production was the worst of any employee on a prorated basis in 1988. Indeed, Cosio had closed only three sales for the entire year and had submitted less than twenty-four proposals. By comparison, Cummings used his own 1988 performance of eleven sales as a measuring stick. Cummings had closed that number of sales even though MLIC's overall business in the last quarter of 1988 was "slow" and sales had declined. Based upon this evaluation, Cosio was determined by McNamara to be surplus. Besides Cosio, five employees in the same region, all younger in age but not salesmen, were surplused. However, one sales representative in the Florida region who was older than petitioner was retained. In all, eleven sales representatives in other regions, all younger than petitioner, were terminated. In January 1989 Cosio was told he was being surplused effective the end of the month. Although respondent made an effort to place surplus employees within the group organization, there were no openings at that time. Cosio was offered a job selling personal insurance with MLIC in the Tampa area but declined the offer since MLIC policy required all new life insurance agents to take a non-waivable, written examination. Cosio considered that an insult to a person with more than twenty years of experience, and he considered the offered salary, which was approximately one-half of his previous salary, to be inadequate. He was also aware of the fact he had not sold personal insurance since 1967. Cosio also received an offer from Gulf Life Insurance Company, but he didn't think it would be "the best use of his abilities." Since his termination, Cosio has acted as an independent broker consultant, albeit with very limited success. He has also applied for sales positions with a number of companies but has not received a job offer. It is noted, however, that the numerous job applications proffered into evidence by Cosio at hearing were not submitted to those companies for a number of months after being terminated by MLIC, and the earliest reply was received by him on October 27, 1989. As of the date of the first hearing (April 25, 1990), Cosio had earned only $1,253.07 during 1990 and had been forced to dip heavily into his retirement funds to subsist. Had he been employed by MLIC in 1990, Cosio estimated he would have earned at least $50,000 in salary and commissions. Petitioner contends that Sowders made certain disparaging remarks about him which prove he was the victim of age discrimination. According to Cosio, he was told by Cummings that after Cummings advised Sowders in August 1988 that Cosio had made two sales that month, Sowders responded that petitioner was "too old, too fat and did not fit the corporate image", and that if he kept making sales "we're stuck with him." Although at hearing Sowders denied making the statement, and Cummings denied he had relayed this information to Cosio, their denials are not deemed to be credible and it is found that such statements were made. Although Cunningham claimed that Cummings made a statement to him on June 21, 1990, that he (Cummings) had lied at the April 25, 1990 hearing, Cummings did not recant his testimony when given an opportunity to do so at the September 12, 1990 hearing. He also denied making that statement to Cunningham. The undersigned has taken this into account in judging the credibility of Cummings' testimony, and this is embodied in part in finding of fact 21.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief be DENIED. DONE AND ORDERED this 18th day of September, 1990, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1990. APPENDIX Petitioner: Partially adopted in finding of fact 1. Partially adopted in findings of fact 1 and 2. Partially adopted in findings of fact 3 and 4. Partially adopted in findings of fact 5 and 6. Partially adopted in findings of fact 7 and 8. Partially adopted in finding of fact 9. Partially adopted in finding of fact 10. Partially adopted in findings of fact 11-13. Partially adopted in findings of fact 15 and 16. Partially adopted in finding of fact 17. Partially adopted in findings of fact 17 and 21. Partially adopted in findings of fact 19 and 20. 13-14. Partially adopted in finding of fact 20. Respondent: 1-2. Partially adopted in finding of fact 1. 3. Partially adopted in finding of fact 2. 4. Partially adopted in finding of fact 5. 5. Partially adopted in finding of fact 10. 6. Partially adopted in finding of fact 11. 7. Partially adopted in finding of fact 10. 8. Partially adopted in finding of fact 11. 9. Partially adopted in finding of fact 10. Partially adopted in findings of fact 7 and 8. Partially adopted in finding of fact 11. Partially adopted in finding of fact 12. Partially adopted in findings of fact 13-14. 14-15. Partially adopted in finding of fact 14. 16-17. Partially adopted in finding of fact 15. 18-20. Partially adopted in finding of fact 17. 21. Partially adopted in finding of fact 17. 22. Partially adopted in finding of fact 11. 23. Partially adopted in finding of fact 17. 24. Partially adopted in finding of fact 11. 25. Partially adopted in finding of fact 12. 26-28 Partially adopted in finding of fact 15. 29-41. Partially adopted in findings of fact 18 and 19. 42-49. Partially adopted in finding of fact 20. Partially adopted in finding of fact 21. Rejected as being unnecessary. Rejected as being a conclusion of law. Partially adopted in finding of fact 21. Note - Where a finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence or a conclusion of law. COPIES FURNISHED: Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Mark S. Herdman, Esquire P. O. Box 75638 Tampa, FL 33675-0638 Anthony C. Ginetto, Esquire Metropolitan Life Insurance Company Law Department, Area 7-G One Madison Avenue New York, NY 10010-3960
Findings Of Fact Willie J. Woods is a farmer. He entered into an agreement with W. R. Ward, Jr., President of Growers Marketing Service, Inc. (GMS) concerning the disposition of watermelons which he had grown. The testimony of Woods and Ward concerning the nature of the agreement is conflicting. In the absence of a written contract, the nature of the agreement must be determined from the other documents surrounding their transactions. From these documents, it is determined that the agreement between the parties was not for the purchase of Woods' watermelons by GMS. The documentation surrounding the transactions by GMS, show that GMS was acting as a broker or middle man in introducing Woods' watermelons into the stream of commerce. According to Mr. Ward's records, each shipment was assigned a transaction number, and each sale from a lot of watermelons was also assigned a transaction number. The record of each of these transactions was examined in detail. Below each of these transactions is discussed, and where portions of the record are particularly pertinent, they have been copied and attached to this order for ease of reference. In some instances, the settlement statement has been reproduced and corrected to reflect what the actual charges should have been based upon the underlying record. A handwritten explanation of the adjusting entries has been added to these statements. Transaction number 1439: On June 4, 1991, Woods delivered 43,750 pounds of watermelons to GMS The documentation surrounding this transaction shows that GMS, sold the load of watermelons FOB Brooksville, Florida for a price of 14 cents per pound.The purchaser's driver transported the load from Brooksville to Canada where the purchaser "rejected" the load because the melons were immature. By purchasing the watermelons FOB Brooksville, the purchaser waived any right to reject the melons upon their arrival at their destination. Further, the only evidence of immaturity is an inspection report which states that the inspection was limited and may not reflect the condition of the whole load. The inspection report itself is hearsay. The dollar value of this load as stated in the Bill of Lading/Customs Declaration was $6,125.00. The cost of freight was not shown in the file because it was delivered FOB Brooksville and the costs were borne by the purchaser. The GMS's handling fee was 1 cent per pound or $438.00. GMS owed Woods $5,687.00 on transaction number 1439. GMS paid Woods $2,879 on this transaction. GMS still owes Woods $2,808 on this transaction. Transaction number 1424: On June 4th, GMS sold in behalf of Woods $4,320 pounds of watermelons for 20.25 cents per pound. W. R. Ward stated that the price was reduced from 15 to 5 cents per pound, and was a bookkeeping error. The file reflects the sales price for the 46,320 pounds of watermelons was $9,380. The file reflects that transportation on this load of watermelons was $1,683.00, and GMS, was entitled to 2.5 cents per pound for packing and 1 cent handling for a total of $1,621. The total expenses were $3,304.00 for transaction number 1424. GMS owed Woods $6,077.00 for transaction 1424, but only paid him $1,844. GMS still owes Woods $4,233 on this transaction. Transaction number 3534: On June 4th, GMS, handled a load of yellow meat watermelons weighing 4,071 pounds for Willie J. Woods. Subsequently, GMS sold portions of this load of watermelons in transactions number 1565, 1507, 1461, 1403, and 1476. On June the 6th, GMS sold 13,337 pounds of watermelons at 17 cents a pound for a total sales price of $2,267.29 in transaction 1461. On June 6th, Growers Marketing Service sold 18,909 pounds at 14 cents a pound for a total of $2,647.26 in transaction number 403. On June 7th, Growers Marketing Service sold 1,945 pounds at 22 cents a pound for a total of $427.90 in transaction 1476. On June 14th, Growers Marketing Service sold 5,347 pounds on transaction 1565 which were subsequently rejected because of severe decay. See, Dump Report dated July 5 in Transaction 1565. Growers Marketing Service showed no income nor expense to the grower on transaction 1565. Because these melons were not sold until June 14, it is possible that they decayed. GMS's treatment of the transaction on the settlement statement is contrary to the notes on transaction 1565 which treat is as a wash with no income or expense to Woods. The assessment of freight and handling charges was not inappropriate under the circumstances, and are disallowed. See, Corrected Invoice 3534 attached to this Order. The total revenue from the remaining transactions was $6,142. The expenses on the various loads total $2,285. GMS owed Woods $3,857 on this load, but only paid him $1152. GMS still owes Woods $2705 on this transaction. Transaction number 3541: On June 7, 1991, Growers Marketing Service handled 9,997 pounds of watermelons for Willie J. Woods on transaction number 1565. This load was sold to Castellini Produce on transaction 1565, discussed above, where it was rejected for excessive decay. The assessment of the freight charges and handling charges on this load which was handled 10 days after it was picked was inappropriate, and is disallowed. It is treated also as a wash in this transaction just as it was in 3534, and just as GMS treated it in transaction 1565. Transaction number 3546: On June 11th, Growers Marketing Service received 4,949 pounds of yellow meat watermelons from Woods. It subsequently sold these watermelons for Woods in transactions 1589, 1607, and 1613. Regarding transaction 1589, the Growers Marketing Service's settlement statement to Woods reflects that this transaction is subject to PACA Audit; however, GMS included the 14,121 pounds of watermelons in its settlement at a expense to Woods of 5 cents per pound on a sales price of 1.67 cents per pound. Because this transaction is still subject to audit, it was inappropriate to settle with the farmer. For purposes of this accounting, 1589 is not considered. In transaction 1607, GMS sold 16,775 pounds of yellow meat watermelons received from Woods on transaction 3546. Transaction 1607 and the funds received from the transaction are discussed in full below with regard to transaction 3548; therefore, it is not discussed or accounted for as part of transaction 3546. In transaction 1613, Growers Marketing Service sold 10,053 pounds of watermelons at 11.6 cents per pound for a total of $1,069.00. Expenses attributable to transaction 1613 were $554.00. Woods was entitled to $614.00 on transaction 1613; however, he was paid nothing on this transaction; GMS owes Woods $614 on this transaction. Transaction 1475: On June 11th, Growers Marketing Service received 45,050 pounds of watermelons from Woods. Growers Marketing Service asserts that the original price of these watermelons was dropped from 15 cents to 12 cents; however, the checkstub attached to the invoice shows a total payment to GMS of $7,298.10 at the original purchase price of 17.2 cents per pound. Growers Marketing Service's costs in this transaction were $2,358. Because this transaction clearly shows the original price was paid, it reflects adversely on creditability of the witnesses for Growers Marketing Service with regard to their testimony in other transactions that the original price was reduced due to fall in the market. Growers Marketing Service owed Woods $4,940 on transaction 1475, and paid him $4,484. GMS still owes Woods $456 on this transaction. Transaction number 1508: On June 11, 1991, Growers Marketing Service received 46,000 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these melons at a price of 10.25 cents per pound. Growers Marketing Service received $4,715.00 on transaction 1508 and had expenses in the amount of $2,259.00. Growers Marketing Service owed Woods $2,456.00 on transaction 1508, and paid Woods $2,284. GMS still owes Woods $172 on this transaction. Transaction number 1497: On June 11, 1991, Growers Marketing Service received 45,340 pounds of watermelons in this transaction. Growers Marketing Service sold these watermelons at 16.35 cents per pound and deducted freight of 4.35 cents per pound, showing a net sales price of 12 cents per pound. This resulted in sales revenue of $5,441 from which GMS deducted its 1 cent handling charge and an additional $4,750 listed as a harvesting advance. GMS paid Woods $204. GMS introduced no proof of a harvesting loan; however, Woods' complaint admits this loan. Nothing is owed to Woods on this transaction. Transaction number 3548: On June 12, 1991, Growers Marketing Service received 41,132 pounds of watermelons from Willie J. Woods. Subsequently, Growers Marketing Service sold watermelons received from Woods on this transaction in its transaction numbered 1613, 1607 and 1627. Growers Marketing Service asserts that 24,457 pounds of watermelons were rejected and destroyed on transaction 1607. The records regarding transaction 1607 show handwritten notation on the invoice that Growers Marketing Service received a total after expenses of sale of $3,286.00 on transaction 1607. In transaction 1613, Growers Marketing Service sold 10,032 pounds of watermelons at 11 cents a pound and in transaction 1627 Growers Marketing Service sold 7,899 pounds of watermelons at 7 cents a pound. The original settlement statement reflected incorrectly that Woods owed GMS $810. A corrected settlement statement on transaction 3548 is attached to this Order and reflects that Willie J. Woods was owed the amount of $1,019.00 in transaction 1607, $624.00 in transaction 1613, and $1,019.00 in transaction 1627. GMS paid Woods no money on this transaction, and owes Woods a total of $1,873. Transaction number 1527: On June 12, 1991, Growers Marketing Service received 50,080 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these watermelons for 17.35 cents per pound receiving a total of $8,689.00 less expenses of $2,441.00. GMS owed Willie J. Woods $6,248.00 on transaction 1527, and paid Woods $247. GMS owes Woods $6,001. Transaction number 1536: On June 12, 1991, Growers Marketing Service received 41,320 pounds watermelons from Willie J. Woods. Growers Marketing Service consigned these watermelons and received $2,078.00 less expenses of $1,473.00. Woods owed $605.00 from Growers Marketing Service on transaction 1536, and paid Woods $307. GMS still owes Woods $298. Transaction number 1535: On June 12, 1991, Growers Marketing Service received 43,240 pounds of watermelons from Willie J. Woods in this transaction. Growers Marketing Service subsequently sold these watermelons at 16.45 cents per pound receiving a total of $7,113.00 less expenses of $2,357.00. Growers Marketing Service owed Willie J. Woods $4,856.00 on transaction 1535, and paid Woods $2,802. GMS still owes Woods $2,054. Transaction number 1505: On June 13, 1991, Growers Marketing Service received 44,950 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold these watermelons for a total of $6,967.00 to a dealer in Canada. The dealer in Canada rejected the watermelons upon their receipt serving that they were overripe on June 15, 1991, when they were received. A Canadian agricultural inspection was ordered and conducted on June 21, 1991, which revealed that 28% of the melons showed decay. However, the inspection was not timely and the report is hearsay. GMS failed to exercise due diligence in obtaining a prompt inspection and seeking recovery in behalf of Woods. Therefore, after absorbing expenses of $2,747.00, Growers Marketing Service owed Woods $4,220.00 for his loss in this transaction. GMS paid Woods $1,250 salvage on the load; however, it still owes him $2,970. Transaction number 1520: On June 13, 1991, Growers Marketing Service received 45,940 pounds of watermelons from Willie J. Woods in this transaction. The front of the folder shows that Growers Marketing Service sold this load of watermelons to Winn Dixie in South Carolina for 12 cents per pound, or $5,513. Upon receiving the watermelons on June 15 1991, Winn Dixie rejected the melons because they were "cutting white, green fresh." See copy of front of file. Growers Marketing Service asked another broker to move the load, and that broker and Growers Marketing Service arranged to have the load inspected at its next destination, Staunton, Virginia. The truck broke down in route to Staunton, Virginia and did not arrive until June 18, 1991. The other broker described the melons as looking "cooked" on arrival. Growers Marketing Service charged Woods with freight on this load. Because Growers Marketing Service had a legitimate freight claim against the trucking company, yet charged the loss and freight charges to the grower, GMS owes Woods $5,940 less the salvage, freight and expenses totaling $2,125. GMS owes Woods $3,816. Transaction number 3553: On June 13, 1991, Growers Marketing Service received 29,478 pounds of watermelons from Willie J. Woods on transaction 3553. Subsequently, Growers Marketing Service sold these melons to various concerns realizing $3,450.76 on these sales. GMS's settlement statement with Woods on this transaction reflects a deficit on transaction 1505 of $822.50. According to the records reviewed by the Hearing Officer there was no deficit in transaction 1505; therefore, the deduction of $822.50 was inappropriate. Adding this money back into the amount due Woods, Woods should have received $1,615.74 on transaction number 3553. GMS paid Woods $675, and still owes Woods $941. Transaction number 3552: On June 13, 1991, Growers Marketing Service received 32,769 pounds of watermelons from Willie J. Woods on this transaction. A review of the records reflects that Growers Marketing Service subsequently sold 10,403 pounds of these melons at three cents a pound, realizing $312.09. Growers Marketing Service also sold 19 bins of these melons weighing 22,366 pounds for nine cents a pound for a total of $2,012.94. Growers Marketing Service's settlement statement reflects a packing charge of two and a half cents per pound for 22,366 pounds of melons that were in bins. This is excluded as an expense because the adjustment for packing charges was included in the Hearing Officer's recomputation of the price of nine cents per pound. Similarly, the price adjustment of one and a half cents per pound was included in the recomputation of the price and is therefore excluded. The settlement statement which is attached to this Order reflects total receipts of $2,325 and total expenses of $750. Growers Marketing Services owed Willie J. Woods $1,575 on transaction number 3552, and paid Woods $1,551. GMS owes Woods $24 on this transaction. Transaction number 3549: On June 13, 1991, Growers Marketing Service received 32,564 pounds of watermelon from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold 4,008 pounds of watermelons at three cents a pound on transaction 1669, realizing $120.24 on the sale. Growers Marketing Service sold seven bins of watermelons weighing 8,400 pounds at $217.66 for each bin, realizing a total of $1,523.66 on transaction 1532. Growers Marketing Service sold 1,346 pounds of watermelon at eight cents a pound, realizing $107.68 on transaction 1678. Growers Marketing Services sold 18,810 pounds of watermelons at sixteen and a half cents a pound, realizing $3,104 on transaction 1530. The Growers Marketing Services' settlement statement on transaction 3549, corrected as indicated above, shows that Growers Marketing Services received a total of $4,855 on this transaction. Growers Marketing Services' statement reflects packing charges of four cents per pound for 24,164 pounds. This packing charge was not applicable because the melons are indicated to have been in bins, not in cartons. Further, the price adjustment of one and a half cents per pound on 18,810 pounds was included in the Hearing Officer recomputation of the price per pound. Taking into account these corrections, total revenue was $4,855, and the total expenses of Growers Marketing Services were $1,613. Growers Marketing Services owed Woods $3,242 on transaction 3549, and paid him $1,690. GMS still owes Woods $1,552. Transaction 3556: On June 13, 1991, Growers Marketing Services received 32,898 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Services sold 2,086 pounds of these watermelons for 12 cents a pound on transaction 1622. Growers Marketing Services sold 2,096 pounds of these watermelons at 10 cents a pound realizing $210 on transaction 1575. Growers Marketing Services sold 1,983 pounds of these watermelons at 10 cents a pound realizing $198 in transaction 1647. Growers Marketing Services' settlement for transaction 3556 is attached to this Order and reflects an original price for these melons of 4 cents per pound; however, Growers Marketing Services sold 1,029 of these watermelons at 11.6 cents a pound in transaction 1613. The settlement statement, a copy of which is attached, is corrected to reflect the sales price of 11.6 cents a pound, and the resulting change in the monies received from $41.16 to $119. GMS sold 2086 pounds of melon for 12 cents per pound realizing $250 on transaction 1622. GMS sold 3,841 pounds of watermelons for 10 cents per pound realizing $384 on transaction 1707. Growers Marketing Services sold 21,862 of these watermelons at 7 cents a pound realizing $1,530 on transaction 1627. The total received by Growers Marketing Services was $2,691 less expenses of $1,952. Growers Marketing Services owed Willie J. Woods $739, and paid him $662 on transaction 3556. GMS still owes Woods $77. Transaction number 3557: On June 14, 1991, Growers Marketing Services received 20,013 pounds of watermelons from Willie J. Woods on this transactions. Subsequently, Growers Marketing Services sold 9,214 watermelons at 12 cents a pound on transaction 1616. Growers Marketing Services 3,418 pounds of watermelons at 3 cents a pound in transaction 1669. Growers Marketing Services sold three bins of watermelons weighing 3,525 pounds at 16.5 cents a pound and an additional 3,852 pounds of watermelons at 16.5 cents a pound in transaction 1530. This is a total of 16,162 pounds of watermelons. The Growers Marketing Service's settlement statement, which is attached, is corrected to show the correct number of pounds sold and the correct amounts of money received by Growers Marketing Service. Growers Marketing Service received a total of $3,301.50 for the sell of these watermelons. Concerning the expenses shown by Growers Marketing Service, the number of pounds handled is adjusted to show that 16,162 pounds was handled. In addition, the 4 cent packing charge for 16,484 pounds of watermelons is deleted since these melons were not packed in cartons but in bins. In addition, the 1.5 cent price adjustment for 3,525 pounds of watermelons handled in transaction 1530 is in the recomputation of the price. The corrected expense total is $254. Growers Marketing Service owes Willie J. Woods $3,048 on transaction 3557. GMS paid Woods $643; however, it still owes Woods $2,405. The total of the sums still owed Mr. Woods by GMS is $32,999.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the parties be notified of these findings, and GMS permitted the opportunity to pay to Willie J. Woods $32,999 within 30 days, and if GMS fails to settle with Mr. Woods, Mr. Woods should be permitted to obtain settlement from the Respondent's bond in the amount of $32,999, or to the limits of the bond. DONE and ENTERED this 29th day of July, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1992. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-1550 Willie J. Woods 1022 Piercewood Point Brooksville, Florida 34602 W. R. Ward, Jr., President Growers Marketing Srevice, Inc. Post Office Box 2595 Lakeland, Florida 33806 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether or not on or about August 25, 1976, an investigation was completed which revealed that the Wester Corporation, d/b/a The Savoy Club, licensed under the beverage laws as a special restaurant, failed to derive at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages for the month of July, 1975 through June, 1976 as called for in Rule 7a-3.15(b), F.A.C.
Findings Of Fact The Respondent, the Wester Corporation, holds license no. 47-150, series 4-COP with the State of Florida, Division of Beverage, and has held that license since October 1, 1975. On August 25, 1976, the State of Florida, Division of Beverage performed an investigation into the records of the Wester Corporation, d/b/a the Savoy Club, which is located at 311 West Van Buren Street, Tallahassee, Florida. This investigation of the records to include cash receipts and tape totals held by the corporation revealed the following facts in terms of gross revenues: July, 1975 Revenues: Food $ 2,842.75 Alcohol $ 7,835.65 August, 1975 Revenues: Food $ 2,312.48 Alcohol $ 6,706.43 September, 1975 Revenues: Food $ 2,589.54 Alcohol $ 6,128.43 October, 1975 Revenues: Food $ 2,883.47 Alcohol $ 5,603.75 November, 1975 Revenues: Food $ 1,935.20 Alcohol $ 5,395.27 December, 1975 Revenues: Food $ 2,227.38 Alcohol $ 5,689.08 January, 1976 Revenues: Food $ 2,461.57 Alcohol $ 6,161.43 FEBRUARY, 1976 Revenues: Food $ 2,259.35 Alcohol $ 4,704.02 March, 1976 Revenues: Food $ 2,397.95 Alcohol $ 5,004.09 April, 1976 Revenues: Food $ 2,391.55 Alcohol $ 5,418.14 May, 1976 Food Revenues: $ 2,149.31 Alcohol $ 6,382.50 June, 1976 Food Revenues: $ 2,243.23 Alcohol $ 5,869.11 During that time period food for a special banquet totaled $ 2,298.84. Averaging out these totals over the period of one year as indicated shows alcohol sales to be approximately 70 percent and food sales to be approximately 30 percent.
Recommendation It is recommended that the license of the Respondent, Wester Corporation, license no. 47-150-SRX, series 4-COP be suspended for a period of one year but that suspension be set aside upon sufficient showing by the Respondent of current compliance with Rule 7a-3.15b, F.A.C. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Larry Winson, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Leroy Wester 311 West Van Buren Street Tallahassee, Florida
The Issue Whether Janet Hurst (Respondent), as a licensed residential real estate broker, should be subject to disciplinary action by the Department of Business and Professional Regulation, Division of Real Estate (Petitioner), for failure to direct, control, or manage a sales associate in her employ, in violation of Section 475.25(1)(u), Florida Statutes.1/ Whether Respondent, as a licensed residential real estate broker, should be subject to disciplinary action by Petitioner for fraud, misrepresentation, concealment, false promises, false pretences, dishonest conduct, culpable negligence, or breach of trust in any business transaction, in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is the licensing authority for real estate brokers in Florida, with revocation and disciplinary authority over its licensees pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes. Respondent is, and at all material times was, a licensed Florida real estate broker who operated a real estate brokerage named Lake DeFuniak Realty, Inc. Carol Rosell was first licensed as a real estate sales associate in Florida in February or March, 2005, and began her first employment in that capacity in April 2005, at Lake DeFuniak Realty, Inc. Although a newly-licensed real estate sales associate, Carol Rosell was not unsophisticated in financial matters, having been involved in the banking industry for over 20 years prior to becoming licensed as a real estate sales associate. In 2005, Carol Rosell sold over one million dollars in real estate through Lake DeFuniak Realty, Inc., and earned over $60,000 in real estate commissions. On December 23, 2005, Carol Rosell placed a telephone call to her first cousin in New Jersey, Richard Rosell, and advised him of two parcels of adjacent land on Kings Lake Road near DeFuniak Springs that were for sale. Both Mr. Rosell and his wife, Darlene Rosell, considered the purchase and, after the holidays, advised Carol Rosell that they wanted to purchase one of the parcels. Carol Rosell, who was the listing agent for the sellers of the property through Lake DeFuniak Realty, Inc., advised that the two parcels were to be sold together. Richard and Darlene Rosell decided to purchase both parcels (collectively, "the Property"). Although they intended to visit the Property before closing, the Rosells decided to close on the purchase without viewing the Property. They paid $182,900 for the Property. After purchasing the Property, Richard and Darlene Rosell visited the Property in February, 2006, and shortly thereafter decided to sell the Property. According to Darlene Rosell, during that visit, they also met with county officials who indicated that, contrary to the way the Property was advertised, the Rosell's rights in the Property did not include lake access. On February 23, 2006, Richard and Darlene Rosell, as sellers, entered into a written listing agreement (Listing Agreement) giving Lake DeFuniak Realty, Inc., the exclusive right to sell the Property. The Listing Agreement listed Carol Rosell as the listing associate and provides that "[t]he property is offered for sale on the following terms ($199,500.00), or on other terms acceptable to Seller." The Listing Agreement does not address how price changes are to be authorized by the sellers. According to the Emerald Coast multiple real estate listing (MLS) printout for the Property, after the Rosells entered into the Listing Agreement on February 23, 2006, the MLS listing price for the Property was originally set at $199,500. Contrary to the allegations of the Administrative Complaint, the price change for the Property reflected on the MLS printout shows that on March 3, 2006, the price change was from $199,500 to $299,500, as opposed to $239,500 as alleged in the Administrative Complaint. The evidence further shows that it was Respondent, not Carol Rosell, who made entry in the MLS listing to increase the price to $299,500 on May 3, 2006. Real estate agents and sales associates obtain access to the MLS system through a member broker. In this case, both Carol Rosell and Respondent were signed up for MLS access during the pertinent time through Lake DeFuniak Realty, Inc. When signing up, each associate or agent is assigned a unique access code which identifies the agent and given a password to access the MLS system. Once they access the system under their unique access codes and passwords, agents and sales associates can make changes to the MLS list price or note certain other changes in the listing. Changes made by those who access the system show up on the MLS listing history along with the access code of the agent who made the change. Real estate agents and sales associates are prohibited from sharing their passwords, and are subjected to fines if they do. Respondent's access code to the MLS system during the pertinent period was E1705. Carol Rosell's access code was E5619. Entries in the MLS history report for the Property show that Carol Rosell was the listing agent from the time that the Rosells purchased the Property until they sold it. A review of the March 3, 2006, change in the MLS listing price for the Property from $199,500 to $299,500, on the MLS history report shows that Respondent, as opposed to Carol Rosell, was the one who accessed the MLS system and made the change on that date under Respondent's access code number E1705. Respondent testified that she accessed the MLS system and increased the MLS listing price of the Property to $299,500 on March 3, 2006, only after she had spoken to Carol Rosell and someone on the telephone identified by Carol Rosell as Darlene Rosell to confirm that the change in the price was authorized. Respondent further explained that she had previously asked Carol Rosell to obtain permission from the sellers, Richard and Darlene Rosell, for the price increase. Respondent said, after she discovered that the Rosells wanted to sell the Property, she did some research regarding the zoning and recommended the price increase for the Property based upon her discovery of a similar-sized parcel listed for $299,000 with the same development potential just one-tenth of a mile away from the Property. The only change in the MLS listing price for the Property under Respondent's access code E1705 was the increase to $299,500 made on March 3, 2006. After that, the only changes in the MLS listing price for the Property while the Rosells had it listed with Lake DeFuniak Realty, Inc., were made under Carol Rosell's access code number E5619, including a decrease to $199,500 and then increase back to $299,500 on April 18, 2006; a decrease to $199,500, and then an increase to $259,500 on May 1, 2006; and a decrease to $239,000 on July 18, 2006. The evidence demonstrated that the price was increased to $299,500, as opposed to $239,500 on March 3, 2006, and that the change on that date was made by Respondent, as opposed to Carol Rosell as erroneously alleged in the Administrative Complaint. Nevertheless, in her settlement stipulation with Petitioner, Carol Rosell "admits the factual allegations in all counts of the Administrative Complaint and that such allegations constitute a violation(s) of the count(s)."2/ Under the terms of her settlement stipulation with Petitioner, Carol Rosell's real estate license was placed on probation for a period of one year, and Carol Rosell agreed to pay costs in the amount of $264, and agreed to pay a fine in the sum of $500. Petitioner, however, waived the fine imposed against Carol Rosell, and she agreed to testify in this proceeding on behalf of Petitioner. In further contravention of the Administrative Complaint and the plain terms of the settlement stipulation with Petitioner's main witness, Carol Rosell, Petitioner's counsel stated during his opening at the final hearing that it was Respondent who changed the price of the Property "as part of a scheme to make an illegal profit," and that Carol Rosell "never changed the price." There is no mention in the Administrative Complaint of a scheme to make an illegal profit and the evidence produced at final hearing does not support such a finding, nor does it support a finding that Carol Rosell never changed the MLS listing price of the Property. At the final hearing, Carol Rosell testified that she did not recall making any of the changes to the MLS listing price. Carol Rosell attempted to explain the fact that her access code appears next to numerous MLS listing price or other changes made to the Property's MLS listing by testifying that she may have left her MLS access code and password on Respondent's computer at a time when she had to share a computer with Respondent, and that Respondent may have used them in making the price changes. Carol Rosell's testimony was refuted by a number of former employees of Lake DeFuniak Realty, Inc., who explained that Carol Rosell never had to share a computer, and that all agents knew not to give out their passwords to the MLS system. In addition, during cross-examination, while Carol Rosell testified that she did not "recall changing prices like that," she did not deny it. Further, in apparent contradiction of her earlier testimony, Carol Rosell remembered "changing the price back to one ninety-nine five," and testified that she had no proof that Respondent was the one who changed the prices. In view of Carol Rosell's settlement stipulation, the documentary evidence of the use of her access code on numerous occasions, her inconsistent testimony, and the credible testimony of other witnesses regarding passwords and whether she shared a computer, it is found that, other than the change made by Respondent on May 3, 2006, increasing the price to $299,500, all of the other price and listing changes to the MLS listing for the Property made during the time that the Rosells owned the Property were made by Carol Rosell. While not mentioned in the Administrative Complaint, Petitioner, through the testimony of Carol Rosell, attempted to show that Respondent changed the listing price of the Property to make an illegal profit. Carol Rosell testified that Respondent told her that she had a verbal contract with Charles "Chuck" Christian and that there was a secret deal with him to inflate the reported sales price of the property and the profit would be split among Respondent, Mr. Christian, and Carol Rosell. Carol Rosell's testimony regarding the alleged transaction, however, was not credible. At the final hearing, the exchange between Petitioner's counsel and Carol Rosell regarding that alleged secret deal was as follows: Q. [MR. SOLLA]. Did you enter into a listing agreement on behalf of DeFuniak Springs Realty with Darlene Rosell and her husband? A. [CAROL ROSELL]. Yes I did. Q. And what was the listing price in that agreement? A. At the time, it was one ninety-nine five ($199,500). Q. Okay. Did there come a time when the price changed? A. Yes. Q. How did that happen? How did it arise? A. The first price change was done by Janet Hurst, the initial price change. And at the time, I didn't know it was being done. After the fact, she indicated that she had changed it because of interest that she had from individuals, investors, out of south Florida who were concerned about the price at one ninety-nine five ($199,500). They felt that it was too low, and they were concerned that there were problems with the property. Q. Did she explain to you at some point that she intended for the buyer to resell the property and to profit? A. Later on yes, we had that discussion. She told me that, essentially, buy low, sell high. She said that she had somebody that was interested in the property, that they were going to purchase it on paper for the one ninety-nine five ($199,500). And I'm not sure of the exact amount. It was one ninety-nine or one ninety-five. And then they were going to turn around and flip it and sell it for two ninety-nine or three fifty. And again, I can't remember exactly what the initial amount was, but they were going to sell it for a higher price. Q. So raising the listing price would make it appear that the property was worth more? MS. SPEARS: Objection, Your Honor, he's leading his own. THE COURT: I'll sustain that objection. BY MR. SOLLA: Q. Why would they raise the listing price? Why would Janet Hurst raise the listing price A. She told me that this way it looked like they were paying more for the property, so when they sold it for more than the listing price, they were showing a profit that they were making, and it looked better for business purposes. Those weren't her exact words, but that was what she was saying. Q. And did she agree to share some of that profit with you? A. She did. Initially, she said that we would split it three ways, and she went cha ching, cha ching. And then she said, well, I can't give you - - I can't split it because you're a realtor. I can give you a bonus. And that's how it was left. Q. Did you let Darlene Rosell know that the price had been changed? A. I honestly don't remember if I did initially. I know we had that conversation, I'm going to say, about a week after the price - - after I realized it had been done. And I called Darlene. Because at the time, we had a verbal contract with - - or Janet had a verbal contract with an individual. And the way it was presented to me was that he was going to pay the one ninety-nine - - he was going to pay two ninety-nine ($299,000) for it, and he was going to sell it and flip it. And I remember saying to her, that's great, they'll be happy. They're going to get more than they even asked for it. And then she explained to me that they weren't going to get that price, they would still get the amount that they had listed it for, but the other individual was going to show that it was more than what he was paying for it so that he could sell it. Aside from the rambling, convoluted nature of the testimony, there are other reasons to question its credibility. At the final hearing, Mr. Christian took the witness stand and denied the alleged scheme. Respondent also denied it, and the credible testimony of Respondent's former employees indicated that Lake DeFuniak Realty, Inc., was not involved in "flipping" property. In addition, the alleged scheme is illogical. It is unlikely that Respondent would tell Carol Rosell that she planned to make an illegal profit from the proceeds of a sale from property owned by Carol Rosell's relatives. Carol Rosell testified that she would not do anything illegal. Carol Rosell also testified that she told Darlene Rosell of all the details of the verbal agreement, and yet, later, Darlene Rosell and her husband entered into a contract with Mr. Christian's company. These factors, together with Carol Rosell's lack of clear recall of prices or the timing of her revelation of the price changes to Darlene Rosell, as well as the fact that Carol Rosell was required to testify against Respondent in exchange for a favorable settlement stipulation with Petitioner, make Carol Rosell's testimony regarding the alleged scheme untrustworthy. Therefore, in addition to the fact that the alleged scheme is beyond the pleadings of the Administrative Complaint, it is found that Petitioner failed to show that Respondent changed the price of the Property as part of an alleged scheme to make an illegal profit. Moreover, it is further found that Petitioner failed to provide evidence of any incentive for Respondent to change the MLS listing. The only credible explanation for the price change to $299,000 on March 3, 2006, was provided by Respondent when she explained that she made the change for the benefit of the sellers to better reflect a nearby comparative listing. Finally, it is alleged that Respondent concealed from the sellers the fact that the listing price for the Property was changed. For this allegation, Petitioner relies upon the testimony of Carol Rosell, as well as the testimony of Darlene Rosell. Carol Rosell's testimony in this regard does not support a finding that the price change was concealed from the sellers. When asked when she advised Darlene Rosell of the first price change, Carol Rosell testified, "I honestly don't remember if I did initially. I know we had that conversation, I'm going to say, about a week after the price - - after I realized it had been done." In fact, Carol Rosell's indefinite testimony could arguably support a finding that she "initially" told the sellers of the price change. Darlene Rosell testified at the final hearing that she was not advised of the March 3, 2006, price change until April, 2006, when Carol Rosell called and told her that "the broker" had changed the price to $239,000. In contrast, according to Respondent, once she had decided that the sales price listed for the Property was too low, but before changing the MLS listing price, she asked Carol Rosell to find the contact numbers for the sellers. Respondent testified that Carol Rosell then came into Respondent's office with a telephone to her ear and then handed it to Respondent, explaining that Darlene Rosell was on the phone. Respondent further testified that, during that telephone conversation, she discussed with the person identified as Darlene Rosell that she would try listing the Property at a higher price and then go down if it was not selling. Then, according to Respondent, she asked Carol Rosell to get written confirmation of the sellers' price change authorization by having Darlene Rosell fax something into the office. While Respondent introduced a copy of the Listing Agreement that apparently had been faxed from Lake DeFuniak Realty, Inc., with changes to the listing price, only the original date of the listing agreement, as opposed to the date of the price change authorization, is evident on the copy provided, and thus no weight is given to the document. While Respondent did not introduce reliable evidence of written authorization from Darlene Rosell, Respondent recalled that Carol Rosell provided written proof of Darlene Rosell's authorization at the time Respondent made the change on March 3, 2006. In addition, there is evidence that Carol Rosell often did not keep up with her work files at office, and that the file Carol Rosell assembled for the Property in the possession of Lake DeFuniak Realty, Inc., was incomplete. Even without written confirmation, Respondent's version is the only credible version of the facts under the circumstances, and Respondent's testimony that she informed someone identified as Darlene Rosell of the fact that she intended to make the price change on the Property is credited. Even without Respondent's testimony, Carol Rosell's equivocal testimony that she does not recall "initially" contacting the sellers about the price change is inadequate evidence to show that there was a delay between Respondent's change of the price on March 3, 2006, and the sellers' receipt of information informing them of the price change. Moreover, it is clear that the sellers were contacted within weeks of the March 3, 2006, price change. Petitioner produced no evidence, through expert testimony or otherwise, indicating that a week or so delay in informing a client of a MLS listing price change would constitute a violation of a Florida real estate license standard. Although Carol Rosell testified that Respondent was sometimes hard to reach or unavailable to answer questions that Carol Rosell may have had regarding her duties, the evidence was insufficient to show that Respondent did not properly direct, control, or manage Carol Rosell while she was a sales associate with Lake DeFuniak Realty, Inc. In fact, with regard to the Property, the evidence indicates that Respondent went out of her way to help Carol Rosell with the listing for the Property by making recommendations for a price increase based upon Respondent's independent investigation. Moreover, contrary to the testimony of Carol Rosell, the credible testimony of Respondent and former employees of Lake DeFuniak Realty, Inc., demonstrated that Respondent offered continued education and provided mentoring to sales associates, all of whom worked with Lake DeFuniak Realty, Inc., as independent contractors. In sum, Petitioner did not prove that Respondent failed to appropriately direct, control or manage a sales associate, or that Respondent concealed the change of the listing price of the Property from the sellers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of October, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2010.
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 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.
The Issue Is Respondent, Victoria D. Wiedle, guilty of failure to account for and deliver funds, in violation of Section 475.25(1)(d)1, Florida Statutes, and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. At all times material hereto, Respondent Wiedle was a licensed real estate broker, having been issued license number BK-0646846, and was principal broker of Escarosa Realty. Respondent's license is still active. Janice Marlene Christian is a realtor associate. She was an independent contractor with Escarosa Realty from December 1998 until April 1999. Accordingly, Respondent Wiedle was Ms. Christian's registered broker during this time. Ms. Beverly Lewis is the mother-in-law of Ms. Christian's brother. Ms. Lewis came to Ms. Christian in February 1999 because she was interested in looking for and purchasing a house. On February 16, 1999, Ms. Christian facilitated an Exclusive Buyer Brokerage Agreement (the Agreement) on behalf of Escarosa Realty with Ms. Lewis. The Agreement was on a form created by Formulator, a software company. "Florida Association of Realtors" appears on the face of the document. Paragraph 6 of the Agreement reads in pertinent part: RETAINER: Upon final execution of this agreement, Buyer will pay to Broker a non- refundable retainer fee of $0 for Broker's services ("Retainer"). Accordingly, Respondent was not entitled to any money as a retainer fee for broker services pursuant to this agreement. The agreement was signed by Ms. Lewis, Ms. Christian, and Ms. Wiedle and became effective on February 16, 1999. The specified termination date of the agreement was August 17, 1999. On or about February 27, 1999, Ms. Christian tendered an offer to sellers on behalf of Ms. Lewis, for property located at 107 Poi Avenue in Santa Rosa County (subject property). Pursuant to this offer, Ms. Lewis gave a $500.00 check dated February 27, 1999, to Ms. Christian as earnest money. The check is made out as follows: "Escarosa Realty Inc. Escrow". Ms. Lewis wrote in the memo section of the check that the check was escrow money for 107 Poi Terrace. The $500.00 check was deposited in Escarosa Realty's escrow account on March 1, 1999. Respondent accounted for the $500.00 check on the March 1999 monthly reconciliation statement for Escarosa Realty. The seller of the subject property made a counter- offer for a higher price which Ms. Lewis rejected. The testimony differs as to what happened next. According to Ms. Christian, Ms. Christian spoke to Respondent sometime after Ms. Lewis rejected the counter-offer about refunding the escrow money to Ms. Lewis. According to Ms. Christian, Respondent informed her that she did not have to give the escrow money back to Ms. Lewis yet because she had the buyer broker agreement. Ms. Christian further asserts that she filled out a written request on March 16, 1999, on a form entitled "EMD Request," which means earnest money deposit request, and gave it to Respondent who again asserted that the $500.00 did not need to be returned at that time because of the buyer brokerage agreement. Ms. Christian's testimony is consistent with Ms. Lewis's. According to Ms. Lewis, she talked to Ms. Christian about getting a refund of the $500.00 shortly after she rejected the counter-offer. She and Ms. Christian discussed the EMD form. She initially agreed that Respondent could temporarily maintain the escrow funds. However, when Ms. Lewis discovered that the financing she was seeking through the rural development program would take several months, she decided she wanted the money returned. Ms. Christian ended her contract with Escarosa Realty effective April 14, 1999. Because Ms. Christian was no longer at Escarosa, Ms. Lewis contacted Respondent by telephone on or about April 21, 1999. Ms. Lewis informed Respondent about the purchase offer and rejection of the counter-offer for the subject property. According to Ms. Lewis, Respondent initially told her she would return the money to her in the mail. When she did not receive it, Ms. Lewis again called Respondent and was told that the $500.00 would not be returned because of the buyer brokerage agreement was still in place. Ms. Lewis asserts that Respondent never told her any request for a refund of the $500.00 had to be in writing. Ms. Lewis then went to the Escarosa Realty office. Ms. Weidle was not there but Elnora Alexander was there. Ms. Alexander was also a realtor associate who was an independent contractor with Escarosa Realty. Ms. Lewis explained to Ms. Alexander about the circumstances of the subject property and that she wanted her earnest money back. Ms. Alexander gave a copy of the buyer broker agreement to Ms. Lewis. After going to Escarosa Realty, Ms. Lewis had numerous other telephone conversations with Respondent about the money. Respondent denies any knowledge of the Poi Terrace failed transaction until she spoke to Ms. Lewis on the phone. She also denied ever receiving the EMD request from Ms. Christian. Respondent asserts that she repeatedly told Ms. Lewis that she would return the $500.00 if Ms. Lewis would only make a request in writing, but that Ms. Lewis refused. This assertion is not credible. It is inconceivable that after all of the efforts made by Ms. Lewis to get her $500.00 returned to her, that she would refuse to make a written request for the money. In any event, there is no dispute that Ms. Lewis made verbal requests to Respondent for the return of the escrow monies. Respondent Wiedle admits that Ms. Lewis requested the money over the telephone. Further, in an April 2, 2001 letter from Respondent to the Division of Real Estate, Respondent acknowledged that Ms. Lewis asked for a refund of the money in the beginning of May and again in early June of 1999. Clearly, if Respondent Wiedle had not previously been aware of the failed Poi Terrace transaction, she was made aware of it during the telephone conversations with Ms. Lewis. Notwithstanding Respondent's assertion that the reason she did not refund the $500.00 to Ms. Lewis was that the request was not in writing, it is clear from Respondent's testimony and from a letter she wrote to Mr. Clanton, Petitioner's investigator, that she believed the $500.00 was connected to the buyer brokerage agreement, not to any offer for purchase of property. In an undated letter from Respondent Wiedle to Mr. Clanton, Respondent wrote: Dear Mr. Clanton, This is in response to your letter dated August 17th, 1999. First Beverly A. Lewis was refunded her money on August 20, 1999 check #111. Second I would like to respond to her complaint. Beverly A. Lewis signed a Exclusive Buyer Brokerage Agreement with EscaRosa Realty, Inc. on February 16th, 1999 with it to terminate on August 17th 1999. Beverly A. Lewis knew that her deposit was a refundable deposit after the agreement is expired not before. As the Broker of this company I had no contact with Beverly Lewis until the agent Marlene Christian was asked to leave the company. If there ever was a contract for her to purchase a house then her agent Marlene Christian never informed me of nor did she ever provide any such contract. The deposit was given to me with the Exclusive Buyer Brokerage Agreement only. Nor did her agent Marlene ever fill out the EMD refund request form requesting a refund to be given to Beverly A. Lewis. However, The result would have been the same. I asked Beverly Lewis If she had changed her mind on purchasing a house she said no she was still going to buy a house but that she knew if she didn't buy her house through Marlene at her new company that Marlene would make life very hard on her. I told her I was sorry but that is the whole purpose in the contract was to secure your buyers from just going all over the place. . . .(emphasis supplied) Respondent refunded the $500.00 to Ms. Lewis on August 10, 1999. At hearing, Respondent volunteered that there was a previous complaint against her for failing to return money she held under a buyer brokerage agreement with a former client. In that instance, the Probable Cause Panel of the Florida Real Estate Commission found no probable cause but issued a letter of guidance to Respondent.1
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, the evidence of record and the demeanor of the witnesses, it is RECOMMENDED: That a final order be entered by the Florida Real Estate Commission finding the Respondent, Victoria D. Wiedle, guilty of violating Section 475.25(1)(d), Florida Statutes, in that she failed to deliver escrow money upon demand, imposing a fine of $1,000.00, and placing Respondent Wiedle on probation for a period of two years. As conditions of probation, Respondent should be required to attend a continuing education course which addresses appropriate handling of escrow funds and be subject to periodic inspections and interviews by a Department of Business and Professional Regulation investigator. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 14th day of June, 2002.
