Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate. Petitioner is also responsible for regulating licensees on behalf of the state. Respondent, John P. Wickersham ("Wickersham"), is licensed as a real estate broker under license number 0095775. Respondent, Aladdin Real Estate of Rockledge ("Aladdin"), is a Florida corporation registered as a real estate broker under license number 0213244. Wickersham is the qualifying broker and corporate officer for Aladdin. Respondents maintain their escrow account at the Barnett Bank of Cocoa. On April 28, 1994, Ms. Marie Ventura, Petitioner's investigator, audited Respondents' escrow account. Ms. Ventura concluded that Respondents' escrow account had a liability of $46,287.30 and a reconciled balance of $43,557.26. Ms. Ventura concluded that Respondents' escrow account had a shortage of $2,730.04. Respondents provided Ms. Ventura with additional information. On May 16, 1994, Ms. Ventura concluded that Respondents' escrow account had a liability of $43,546.21 and a reconciled balance of $42,787.26. Ms. Ventura concluded that Respondents' escrow account had an excess of $11.05. Respondents never had a shortage in their escrow account. Respondents maintained an excess of $11.05 in their escrow account since September, 1993. In September, 1993, Respondents converted their method of bookkeeping to a computer system. The computer system failed to disclose an excess of $11.05 due to Respondents' misunderstanding of the appropriate method of labeling inputs to the software system. Respondents discovered and corrected the error prior to the formal hearing. Respondents properly made and signed written monthly reconciliation statements comparing their total escrow liability with the reconciled bank balances of their escrow account. Although Respondents did not use the form suggested in Rule 61J2- 14.012(2), Respondents satisfied the substance of the requirements for record keeping and reporting. Respondents maintained the information required in Rule 61J2-14.012(2) in bank statements, ledger cards, and checkbooks. At the time of the formal hearing, Respondents presented the information in a form that complied with the requirements of Rule 61J2-14.012(2). The shortage determined by Petitioner on April 28, 1994, was caused, in part, by errors made by Petitioner's investigator. It was the investigator's first audit, and the information provided by Respondents was not in an easily discernible form. However, Respondents never withheld any information, and Respondents maintained and provided all information required by applicable law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(b) and Rule 61J2-14.012(2). RECOMMENDED this 18th day of January, 1996, in Tallahassee, Florida. DANIEL MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January 1996.
Findings Of Fact At all times pertinent to the issues herein, Petitioner John Crawford, operated Crawford and Son's Farms located in or near Lakeland, Florida, on which he grows produce including, inter alia, beans of the variety in controversy here. Respondent, Wishnatzki, is a produce broker located in Tampa, Florida, and has been in the business of brokering produce grown by Florida farmers throughout the United States for three generations. Petitioner and Respondent have done business together in the past on many occasions, without controversy, and have, over the years, developed an amicable business and well as personal relationship. For a substantial portion of that time, including the time in issue, the parties' transactions were consummated under a "written statement of terms and conditions" which called on the broker, Wishnatzki, to act as the grower's agent on the basis of "gross proceeds of a sale, less carrier, cooling, packing and palleting charges, if any, and a Grower's Agent's customary commission." At some time prior to April 28, 1994, Mr. Crawford, who was, at the time, carrying a bucket full of the beans later sold through Respondent, saw Mr. Wishnatzki who, he claims, indicated the beans could be worth $25.00 per bushel. The beans at hand were the earliest produced from the Petitioner's fields, however, and the main crop was not yet ready for harvesting. Mr. Crawford acknowledges this comment by Mr. Wishnatzki was no guarantee of price but merely an opinion, and Mr. Wishnatzki claims it was Crawford, not him, who stated a figure. Several days later, however, on or about May 3, 1994, while his beans were being picked, Mrs. Crawford spoke with Mr. Wishnatzki who said he needed beans and had a truck going to New York. According to Mrs. Crawford, Mr. Wishnatzki advised her they could probably get $20.00 per bushel for the beans if Crawford could get them in. Mrs. Crawford immediately went to Petitioner and told him what Respondent had said, and within two days, on May 3 and 4, 1994, Mr. Crawford delivered to Mr. Wishnatzki 164 bushels of beans. The beans were shipped up north, but in the interim, the price of beans, according to the Department of Agriculture's price report, dropped considerably from a price near $18.00 per bushel. Records maintained by Respondent reflect that between May 4 and May 7, 1994, Respondent sold the entire 164 bushels, in varying amounts, to six different customers, as follows: 5/4/94 Scarmardo Produce. 40 bu at $14.00/bu 5/5/94 C & S Wholesale Gro. 73 bu at 12.00/bu 5/5/94 C & S Wholesale Gro. 2 bu at 0.00/bu 5/5/94 Watson's Produce 5 bu at 16.00/bu 5/6/94 Scott Street Tomato Co. 5 bu at 16.00/bu 5/6/94 Sy Katz Produce 5 bu at 16.00/bu 5/7/94 Tamburo Bros. 34 bu at 4.00/bu Respondent received a total of $1,812.00 for the sale of all Petitioner's beans consigned to it for an average price of $11.04 per bushel. Notwithstanding Respondent was entitled, by the terms of the agreement between it and Petitioner, to deduct a commission on the sale, because of the long- standing harmonious relationship which had existed between them, and because Respondent felt it important to support its growers and insure their financial well-being, Respondent, nevertheless paid Petitioner the full amount it received, and an additional sum as well, for a total payment of $2,132.00. In other words, though Respondent received only an average of $11.04 per bushel from its customers for Petitioner's beans, it nevertheless paid Petitioner an average of $13.00 per bushel for the beans it received from him. Petitioner is not satisfied with the amount received, however, and claims Respondent sold the beans at a price below market. He refers to Mr. Wishnatzki's comment in passing in late April that the beans could bring $25.00 per bushel. He also notes that the market should have been good because of an infestation of bean virus due to white flies. He further contends that Respondent should not have sold the beans for such a low price; that Respondent should have checked with the northern markets, and if there was a problem with his beans, Respondent should have procured a government inspection of them. While he admits beans were in a downward fall, he does not believe the price dropped to $13.00 per bushel on a first hand picking. In support of his position, he refers to two separate market reports, the first dated May 4, 1994, and the other dated May 6, 1994. The former reflects a "fairly light" demand for beans, with handpicked beans selling between "16.00 and 18.65, mostly 16.65 few 12.00", and the latter reflects, for handpicked beans, a "fairly light" demand with sales at "14.00 - 16.65 few 12.00 occasional lower." Petitioner does not claim he should have received $18.00 per bushel which he cites, inaccurately, was the fair market price according to the Florida Market Reports cited above, but claims he could have come off that price if he had been contacted to negotiate price. However, the $18.00 price he cites was not, according to the evidence, the usual price received. The usual price was around $16.65, with some lower. In any case, the terms of the brokerage agreement does not provide for price negotiation after delivery is made to the broker. Further, Mr. Wishnatzki did not call Petitioner when he saw the beans were not selling well because they had already been picked and were in Respondent's hands. Not much could have been done at that point, and he had other growers to deal with as well. In addition, Mr. Crawford has access to the market report and knew the price was falling. He did not call Respondent to set a minimum price. According to Mr. Wishnatzki, the price paid to the growers is based upon the price his company receives for the produce. However, Respondent does not wait until it has been paid before paying its growers. When the produce is sold, the grower is paid, and Respondent receives payment from the buyer after that. There is no way to say with certainty when the grower delivers produce to Respondent what price an ultimate buyer will pay for that produce. Many factors come into play, including quality of the produce, current market price, supply and demand and the like. A market bulletin, published at the end of each market day, gives some idea of what the next day's price is likely to be, but only market conditions control the price. Review of the prices received by Respondent for the first 130 bushels of beans sold reflect a price of from $12.00 for the 73 bushels sold to C & S, to $14.00 for the 40 bushels sold to Scarmardo. The 15 bushels sold to three different brokers for $16.00 per bushel is but a small amount of the total. The remaining 34 bushels sold to Tamburo for $4.00 per bushel brought the average price received down, as did the two bushels for which no payment was received. Respondent claims they received only $4.00 per bushel from Tamburo because of a constant decline in the market during the entire week the beans were for sale, and the sale to Tamburo was, in effect, a distress sale. Wishnatzki started the week out offering the beans at $18.00 per bushel. The price was reduced each day until the final Saturday when it is usual to sell what they have left over for what they can get. On Saturday, May 7, Wishnatzki still had 34 bushels of beans left and Tamburo sold them at the lower price. It was lower that Wishnatzki had expected, but consistent with the agreement they had with Tamburo who had the beans on consignment. Mr. Wishnatzki asserts the sale at that price was a judgement call he had to make, but were he confronted with the same situation, he would do it again. At no time did Mr. Wishnatzki advise Mr. Crawford he could, or would, sell a given quantity of beans at a certain price. If he had known what price he would get for the beans at later sale, he would have paid Mr. Crawford on the spot, in advance. Further, even though at the beginning of the week in question the market reports showed beans selling for a good price, sales can not always be made at the reported market price. The price he gets is what his customers are willing to pay. His procedure is to send out a daily inventory sheet to each of his customers, nation-wide, by FAX. At the time these beans were delivered to Respondent, the demand was light, witnessed by the fact that it took a whole week to dispose of 164 bushels. That is not a large volume. While he understands Mr. Crawford's disappointment, it is a result of the fact that Crawford's expectations were higher than reality delivered. This has happened to growers before, and it will, no doubt, happen again.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Crawford & Son's Farms' claim against Respondent, Wishnatzki & Natel, Inc. and Continental Insurance Company, in the amount of $824.00, be denied. RECOMMENDED this 22nd day of November, 1994, in Tallahassee, Florida. COPIES FURNISHED: John Crawford d/b/a Crawford & Son's Farms 2545 Sleepy Hill Road Lakeland, Florida 33809 ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1994. David L. Lapides, Esquire W. Edwin Litton, II, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 3433 Tampa, Florida 33601 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue Petitioner's complaint and Petition for relief allege that she was discriminated against due to her handicap of multiple sclerosis when she was terminated by Respondents on March 9, 1990. The issue for disposition is whether that violation of Section 760.10, F.S., occurred, and if so, what relief is appropriate.
Findings Of Fact Leah Swenson-Davis was employed by Respondent, Orlando Partners, as a national sales manager from August 1989, until her termination on March 9, 1990. As sales manager she searched out new business for the hotel, maintained files and obtained repeat business from corporations and other customers. Her salary was $28,000.00 a year. Louis Evans was director of sales, and her supervisor. He hired Ms. Swenson-Davis to book conventions and also hired Barbara Hydechuk and Beth Darkshani as other sales staff. In his opinion Ms. Swenson-Davis was a "pro"; she generated substantial revenue for the hotel and her sales bookings were "much superior" to the other staff. At one point, the three women were promised new office chairs if they could generate 500 room/nights by Friday of the same week. They made their goal, with Ms. Swenson-Davis bringing in 437 out of the total, and the other women bringing in the remainder. In addition to booking hotel rooms, Ms. Swenson-Davis also was effective in selling other hotel services. She generated business from groups who had previously used the hotel but had not been reworked. Her booking packages were very detailed and thorough and she had few cancellations. In February 1990, Barbara Hydechuk was promoted to director of sales, and she took over the responsibility of national sales. Leah Swenson-Davis was hospitalized in February 1990, for what was originally thought to be a stroke. She was then diagnosed as having multiple sclerosis, a disease affecting functions in the nervous system. Hers is not a severe form of the disease and her physician released her to return to work half-time. At the hearing, no signs of illness were evident; that is, she moved and spoke in a perfectly normal manner. When she returned to work, however, Ms. Swenson-Davis was treated "like a leper". Bill Flynn and Barbara Hydechuk made her feel like she would infect them. She was kept at a physical distance. During her absence, Barbara Hydechuk had been promoted. When Ms. Swenson-Davis asked Bill Flynn why she was not informed of the promotion opportunity, he replied that he had worked with Barbara. The work atmosphere, and employees' attitudes toward Ms. Swenson-Davis were very different after her return to work. On March 9, 1990, the Friday before Ms. Swenson-Davis was to pick up her doctor's release to return to work full-time, she was informed by Barbara Hydechuk that she was "terminated immediately" due to lack of productivity in the sales department. Since her termination, Ms. Swenson-Davis has submitted approximately 300 applications with other hotels, and in other sales and marketing areas. She has been given interviews, but has not been hired as of the date of the hearing, although she is capable of working full-time. She received unemployment compensation from March until September 1990. She has accrued medical expenses in the amount of $12,602.00, in 1992, for herself and her son, which expenses would have been covered by her former employer's benefit package. She was insured through COBRA until December 1990, when the premiums went over $500.00 and she could no longer afford them.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter its final order requiring 1) Reinstatement of Petitioner in the same or equivalent position, 2) damages of back pay computed at the rate of $28,000.00 per year from the time of discharge until reinstatement or rejection of an offer of equivalent employment, less payments received for unemployment compensation; 3) damages in the amount of $12,602.00, representing medical benefits lost; and 4) reasonable costs and attorneys fees. DONE AND RECOMMENDED this 14th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3920 The following constitute specific rulings on the findings of fact submitted by Petitioner: 1. Adopted in paragraph 1. 2.-3. Adopted in paragraphs 2, 3, and 4. 4. Rejected as irrelevant. 5.-6. Adopted in paragraph 6. 7. Adopted in paragraphs 2, 5, and 7. Rejected as contrary to the evidence. Petitioner asked why she was not told of the promotion opportunity. Adopted in paragraph 7. Adopted in paragraph 5. 11.-12. Adopted in paragraph 8. Rejected in part. The complaint in this case relates to wrongful termination, not failure to promote. Moreover, no competent evidence supports a finding that Petitioner would have applied for promotion or was denied promotion on account of her handicap. The other employee was promoted prior to Petitioner's return to work. Adopted in paragraph 9. Rejected as unsupported by the evidence. Basis for the computation is not apparent. Rejected as immaterial. Adopted in substance in paragraph 9, although the $200.00 expense incurred in 2/90 is rejected, as petitioner was still employed at that time. Rejected as unsupported by competent evidence. Rejected as unnecessary, although the recommendation for reinstatement is adopted. COPIES FURNISHED: James A. Kirkland Kirkland Management, Inc. 946 North Mills Avenue Orlando, Florida 32802 Percy Bell K. F. International Host, Inc. 1600 Lee Road Winter Park, Florida 32790 Raymond Rotella Kosto & Rotella, P.A. Post Ofice Box 113 Orlando, Florida 32802 Orlando Partners, Inc. d/b/a Quality Hotel Orlando Airport 3835 McCoy Road Orlando, Florida 32812-4199 Tobe Lev, Esquire Post Office Box 2231 Orlando, Florida 32802 Betsy Kushner, Claim Representative Cigna Property and Casualty Companies Post Office Box 30389 Tampa, Florida 33630-3389 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113
The Issue Whether Redland Brokers Exchange, Inc., is owed $2,602.60 for agricultural products ordered by and delivered to Mo-Bo Enterprises, Inc.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Redland Brokers is an agent for producers of Florida-grown agricultural products. Mo-Bo is a dealer in such products in the normal course of its business and is bonded by Armor. During the period from October 28, 1994, until November 11, 1994, Mo-Bo ordered various agricultural products from Redland Brokers. In accordance with the usual practice of Redland Brokers when doing business with Mo-Bo, the orders were accepted by telephone and the items were loaded onto trucks sent by Mo-Bo to Redland Brokers's warehouse. Redland Brokers sent the following invoices to Mo-Bo for agricultural products order by and delivered to Mo-Bo: November19, 1994 Invoice Number 275 $180.00 November5, 1994 Invoice Number 290 756.00 November11, 1994 Invoice Number 319 793.00 November19, 1994 Invoice Number 334 353.60 November19, 1994 Invoice Number 338 520.00 TOTAL $2,602.60 Payment was due twenty-one days from the date each invoice was mailed. Despite repeated demands, Mo-Bo has not paid any of the amounts reflected in these invoices. As of September 6, 1995, the date of the formal hearing, $2,602.60 remained due and owing to Redland Brokers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Mo-Bo Enterprises, Inc., to pay $2,602.60 to Redland Brokers Exchange, Inc., and, if Mo-Bo Enterprises, Inc., does not pay this amount, ordering Armor Insurance Company to pay this amount, up to its maximum liability under its bond. DONE AND ENTERED this 10th day of October 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1995. COPIES FURNISHED: Frank T. Basso, Jr., Owner Amy L. Glasow, Owner Redland Brokers Exchange, Inc. 401 North Redland Road Homestead, Florida 33030 Paul Boris Mo-Bo Enterprises, Inc. Post Office Box 1899 Pompano Beach, Florida 33061 Mark J. Albrechta, Esquire Armor Insurance Company Legal Department Post Office Box 15250 Tampa, Florida 33684-5250 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue to be determined in this proceeding is whether Respondents Wilson and Son Sales, Inc. (Wilson), and Ohio Casualty Insurance Company, as surety, are indebted to Petitioner for certain Florida-grown agricultural products.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of several vegetable crops in Hardee County. Wilson is a dealer in agricultural products. More specifically, Wilson operates an agricultural broker business in Plant City. Wilson’s surety is Ohio Casualty Insurance Company. Although Wilson has written contracts with some producers, Wilson does not have written contracts with all producers. In the absence of a contract, the terms of Wilson’s broker services are almost always the same; that is, Wilson gets a commission of 10 percent on the sale of the produce and $.35 per box for palletizing and pre-cooling the produce, in return for which Wilson makes a reasonable and good faith effort to sell Petitioner’s produce for the best price. Petitioner contacted Wilson in January 2007, about bringing flat beans to Wilson to sell. Wilson expressed interest and informed Petitioner about Wilson’s standards terms as described above. These terms were agreeable to Petitioner and he brought the beans to Wilson later that month. Although Petitioner and Wilson had no written contract, the parties’ mutual understanding of the terms of their agreement created an enforceable oral contract. Wilson sold Petitioner’s beans and no dispute arose from this first transaction. The parties’ subsequent transactions for other produce were undertaken pursuant to the same oral contract terms. Because Wilson works on a commission basis, it is generally in Wilson’s self-interest to sell growers’ produce for the best price. Petitioner contacted Robert Wilson, Wilson’s owner, by telephone in February 2007, and informed Wilson of his plans to grow wax beans and “hard squash.” It was not stated in the record whether all three varieties of hard squash later grown by Petitioner, butternut squash, acorn squash, and spaghetti squash, were discussed by Petitioner and Robert Wilson during their February 2007 telephone conversation. A major dispute in the case was whether the parties’ February discussion about hard squash created some obligation on the part of Wilson beyond the oral contract terms described above. Petitioner claims that Wilson encouraged him to plant the squash and that Petitioner would not have planted the squash otherwise. Petitioner never made clear, however, what additional obligation was created by Robert Wilson’s encouragement beyond the obligation to accept delivery of and make good faith efforts to sell Petitioner’s squash at the best price. Petitioner did not use the word “guarantee,” but his claim seems to be that Wilson became obligated to guarantee that the squash would be sold for a price close to the price published in the Columbia (South Carolina) Market Report, a periodic publication of produce prices. Such an obligation on the part of a broker is contrary to the general practice in the trade. Petitioner’s evidence was insufficient to prove more than that Robert Wilson thought he could sell Petitioner’s squash and had a genuine interest in acting as broker for Petitioner’s squash. The evidence was insufficient to prove the existence of a contractual guarantee that Wilson would obtain a certain price for Petitioner’s hard squash or do more than was promised with regard to the beans that Wilson had sold for Petitioner; that is, to try to sell the produce for the best price. When Petitioner’s wax beans were picked in late April, he brought them to Wilson to sell. No dispute arose regarding the sale of the wax beans. Petitioner brought squash to Wilson in five deliveries between May 12 and May 29, 2007. Petitioner said that on one of these deliveries, he had to leave the boxed squash in the parking lot of Wilson’s facility because there was so much cantaloupe that had been delivered ahead of him. Petitioner says he was told by a Wilson employee that the squash would not be put in the cooler. Petitioner thinks Wilson was more interested in moving the cantaloupe than the hard squash. Petitioner thinks his squash was not put in the cooler or was put in too late. Wilson denies that Petitioner’s squash was not put into the cooler or was put in late. Robert Wilson claims that he made many calls in an effort to sell Petitioner’s squash, but he could not find interested buyers for all of the squash because (1) the demand for hard squash dried up, (2) some of Petitioner’s squash was of low quality, and (3) the squash began to spoil. Petitioner denied these allegations. Petitioner received invoices and other paperwork from Wilson showing that Wilson sold Petitioner’s first delivery of 490 boxes of acorn squash for $10.18 per box. It sold Petitioner’s second delivery of 519 boxes of acorn squash for $2.08 per box. For Petitioner’s third delivery of 110 boxes of acorn squash and 240 boxes of spaghetti squash, Wilson “dumped” the acorn squash by giving it to away for free to the Society of St. Andrews food bank, and sold the spaghetti squash for $5.15 per box. Wilson sold petitioner’s fourth delivery of 279 boxes of butternut squash for $.55 per box.1 Competent substantial evidence in the record established that it is a regular occurrence for agricultural products awaiting sale to decay and become unsellable, and for the broker to dump the products in a landfill or give the products to a charitable organization and then provide the grower a receipt for tax deduction purposes. It was undisputed that Wilson did not notify Petitioner before disposing of his squash. Petitioner claims he should have been notified by Wilson if the squash was beginning to spoil. However, Petitioner did not prove that prior notification was a term of their oral contract. Petitioner claims further that the federal Perishable Agricultural Commodities Act required Wilson to notify Petitioner before dumping the squash and to have the squash inspected to determine whether, in fact, it was spoiled. As discussed in the Conclusions of Law below, this federal law is not applicable. Competent substantial evidence in the record established that the market for agricultural products fluctuates and, at times, can fluctuate rapidly. For hard squash, which is normally prepared in an oven, the market demand can drop dramatically due to the onset of warm weather simply because people tend not to cook hard squash dishes in warm weather. Petitioner’s squash was being marketed in May, which means the beginning of warm weather for most areas of the United States. This fact supports Wilson’s claim that the demand for hard squash had been good, but fell rapidly just at the time Wilson was trying to sell Petitioner’s squash. The problem with the claims made by Petitioner in this case is simply one of insufficient proof. It is not enough for Petitioner to offer theories about what he thinks happened or to raise questions which are not fully answered. Petitioner had no proof that his squash was not put in Wilson’s cooler, that his squash did not begin to decay, that the demand for hard squash did not fall rapidly, that Wilson did not make reasonable efforts to sell the squash, that Wilson had willing buyers for Petitioner’s squash at a better price, or that Wilson sold squash from other growers at a better price. Petitioner’s evidence for his claims consisted primarily of market price reports that he contends show the approximate price Wilson should have gotten for the hard squash. Market price reports have some relevance to the issues in this case, but competent evidence was presented that the prices quoted in the publications are not always reliable to indicate the price a grower can expect to get on any given day, because there are factors that cause the published market price to be an inflated price (and applicable to the highest grade of produce) and because the market price can change rapidly with a change in demand for the product. The oral contract between Petitioner and Wilson required Wilson to try to get the best price for Petitioner’s squash, not some particular price appearing in a particular market price report. Petitioner did not show that Wilson got a better price for hard squash of equal quality, or that other brokers in the area got a better price for hard squash of equal quality at the times relevant to this case. Petitioner’s evidence was insufficient to prove that Wilson did not make a reasonable and good faith effort to sell Petitioner’s squash at the best price.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order dismissing Petitioner’s amended claim. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2008.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Lee Ann Burgess was employed on March 17, 1975, as the Administrator of the Domestic Tourism Section, Division of Tourism, Department of Commerce. During her initial years of employment, Edward J. Trombetta was the Secretary of the DOC. He remained in that position from February of 1975 through December 31, 1977. The DOC then had several Divisions--one of which was the Division of Tourism--and these Divisions were broken down into Bureaus which were, in turn, composed of various Sections. Mr. Trombetta was of the opinion that only himself, his Assistant Secretary and his Division Directors were policy-makers within the DOC and that other employees simply implemented that policy. According to Mr. Trombetta, policy-making deals with personnel matters and implementation of the budget appropriated by the Legislature. Decision- making and policy-making emanated from the Secretary's office. While the Section heads or administrators might recommend ideas which would lead to "policy," they had no authority to "establish" the course of policy for their respective Divisions or Sections, according to Mr. Trombetta. The December, 1976 job description for the position of Administrator of the Domestic Tourism Section included, in part, the following duties and responsibilities: -- being a working supervisor over a majority of the promotional activities of the division -- creating, directing and supervising the approved promotional and selected advertising programs. "He must not only plan the programs, he must budget each one as well as the entire Domestic Development Section." -- recommending new markets and objectives to the Division Director and advising on all aspects of promotion, utilizing research statistical information to support such recommendations and advice -- directing a staff of promotion specialists -- maintaining a constant contact with the higher echelons of the Department of Commerce as well as other government agencies and the private sector of the travel industry -- handling personnel both within the confines of the office and those that are required to be at great distances from the office in following through on the projects -- working with publishers of travel oriented publications in creation of special sections and issues on facets of Florida tourism -- initiating and carrying through promotions with department stores, other chain stores, industry, common carriers, resort areas and many others -- recommending and coordinating publicity in conjunction with the other areas of the Department of Commerce -- representing the Division at conferences of national, regional travel organi- zations -- creating and implementing special events which insure Florida's continued growth as a site for major sports activities -- developing and recommending advertising programs which illuminate Florida's sports attractions -- preparing, editing and distributing publications on promotional tourism activities and information on sports activities and facilities within Florida. During petitioner's tenure as Administrator of the Domestic Tourism Section, she was directly responsible to her Bureau Chief, Ron Miller. At the beginning of each fiscal year, she submitted for Mr. Miller's approval a listing of appropriate functions and trade shows to attend for that year. She submitted a requested budget. On occasion, Mr. Miller would discuss with her which projects or functions would need to be rejected because of the availability of funding. All promotional functions and long-term commitments had to be approved by Bureau Chief Miller. Petitioner could not expend money without prior approval and did not feel that she had the authority to commit funds, resources or time without prior approval from her Bureau Chief. She perceived that her authority was limited to the implementation of preapproved promotional programs and functions. Once a program was approved, it was her responsibility to create a theme for that program. Her decision as to who should attend certain programs or promotions was occasionally overridden by her Bureau Chief. During petitioner's tenure, the Domestic Tourism Section was composed of an administrator, a secretary and two promotional specialists, and conducted approximately 19 to 21 promotions per year. The goal of the DOC's Division of Tourism is to increase the number of visitors and to create more trade in Florida on an annual basis. When Sidney Levin became the Secretary of the DOC in March of 1979, he contemplated a reorganization and expansion of the Division of Tourism. He anticipated that the Division would obtain a greatly increased staff and an accelerated program in the tourism sales department. It was Mr. Levin's concept that, the three section heads were, as known in the business world, "sales managers" and that an extensive marketing plan would be developed for the Division of Tourism. The three "sales managers or section heads were to be in the areas of domestic sales, international sales and convention sales. (Later, a Latin American sales section was created.) The persons occupying these positions were responsible for the management of those sections and were to be active in the creation of a marketing plan for the entire Division. The majority of the work accomplished on the marketing plan was to come from the various sections, and the section heads would have the responsibility for that function. The section heads were to generate the ideas for the overall plan, to determine what was possible and what was not possible and then to implement the plan once approved. During Secretary Levin's tenure with the DOC, the head of each Department was permitted to designate ten "policy-making" positions as exempt from the Career Service System subject to the approval of the Department of Administration. Section 110.205(2)(h), Florida Statutes (1979) (now Section 110.205(2)(i)). In accordance with his reorganization and expansion plans for the Division of Tourism, Secretary Levin, by letter dated December 12, 1979, requested approval from Secretary Nevin Smith. DOA, to exempt from the Career Service System the positions of Administrator of Tourism Development (position number 00063) and Administrator of International Tourism (position number 00067). Two other positions not relevant to the issues herein were also requested to be exempt as policy-making positions. By letter dated December 14, 1979, Secretary Smith informed Secretary Levin that the four requested positions had been exempt from the Career Service as policy-making positions. [The convention sales section of the Division of Tourism was not yet created. When that position was later created, a request for a similar Career Service exemption was granted.] At the time of the requested exemption of petitioner's position, the only written guideline in existence as to a "policy-making" position was contained in a memorandum dated July 1, 1974, to all Department heads from former DOA Secretary L. K. Ireland, Jr. That memorandum states that the DOA's Division of Personnel defined a policy-making position as one which sets a definite course of action for the unit for which the position is responsible (i.e., office, bureau, division, department) which is unit-wide in effect and will guide and determine present and future decisions of that unit measured in a time span of no less than six months. Although not contained in written form in December of 1979, it was also the DOA's policy to refuse to approve exemptions for positions which directly reported to or were responsible to a position occupied by a Career Service employee. The position formerly occupied by petitioner (position number 00063) is now entitled Administrator of Domestic Sales of the Division of Tourism. The present incumbent, Glenn Couvillon, reports to the Bureau Chief of Sales and Promotions who reports to the Director of the Division of Tourism. Mr. Couvillon was formerly a promotional specialist under the supervision of petitioner Burgess. His present duties include the preparation and submission of a marketing plan for his section to his Bureau Chief for approval and, after such approval, the implementation and staffing of different promotions in that plan. Other than the enlargement of the Domestic Sales Section, and the expansion of its budget and programs, Mr. Couvillon does not feel that the role of the section administrator has changed much since he assumed that position. The Domestic Sales Section now has a staff of eleven, including seven Development Representatives, and does approximately 54 promotions a year. The 1980 job description for position number 00063 does not differ in significant respect from the 1976 job description for that position. The differences are primarily in the usage of terminology, and not in the description of duties or responsibilities. According to Nevin Smith, the Secretary of DOA since July of 1979, the principal criteria for determining whether a position is "policy-making" has always been the same. That criteria is whether or not the position-holder plays a key advisory role to the Department head. An expert in the area of personnel management and administration, Lee Breyer, defines a "policy-maker" as "an individual who can, with a high degree of success, be able to influence the direction of a particular level of that organization." In February of 1981, the DOA promulgated a rule which defines the policies applicable to exemption of policy-making positions. Rule 22K-16.02, Florida Administrative Code, provides as follows: A position is policy-making if the incumbent's primary responsibility is the managing of a major function or the rendering of management advice to Senior Management level administrative authority. Such position can be established as policy-making only if located in the top managerial levels of a department, division, or bureau (or comparable level) and if it is typified by broad responsibility for policy implementation and extensive participation in the development of a department's goals.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered finding that position number 00063 is a policy-making position eligible for exemption from the Career Service System in accordance with Section 110.205(2)(i), Florida Statutes. Respectfully submitted and entered this 16th day of September, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1982. COPIES FURNISHED: Edward S. Jaffry, Esquire HORNE, REODES, JAFFRY, HORNE & CARROUTH Post Office Drawer 1140 Tallahassee, Florida 32302 Don W. Davis, Esquire Department of Commerce 510H Collins Building Tallahassee, Florida 32301 David V Kerns and Daniel C. Brown, General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Stuart Edgerly Secretary Department of Commerce 510C Collins Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration Room 435 Carlton Building Tallahassee, Florida 32301
The Issue Has Respondent Fancy Farms Sales, Inc. (Fancy Farms) made proper accounting to Petitioner Wayne Sullivan in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Fancy Farms from November 8, 1994, through December 10, 1994, by Wayne Sullivan to be handled by Fancy Farms as agent for Wayne Sullivan on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Wayne Sullivan was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Fancy Farms was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8453 issued by the Department, supported by bond number 57 92 20 in the amount of $75,000, written by Gulf Insurance Company with an inception date of September 1, 1994, and an expiration date of August 31, 1995. From November 8, 1994, through December 10, 1994 Wayne Sullivan delivered certain quantities of an agricultural product (zucchini) to Fancy Farms. It is the accounting for these zucchini (zukes) that is in dispute. It was stipulated by the parties that Fancy Farms was acting as agent in the sale of the zukes delivered to Fancy Farms for the account of Wayne Sullivan on a net return basis. There is no dispute as the quantity or size of the zukes delivered by Wayne Sullivan to Fancy Farms during the above period of time. Furthermore, there is no dispute as to the charges made by Fancy Farms for handling the zukes, including but not limited to the commission charged by Fancy Farms. The agreed upon commission was ten per cent (10 percent) of the price received by Fancy Farms from its customers. There is no evidence that Fancy Farms found any problem with the quality of the zukes delivered to Fancy Farms by Wayne Sullivan during the above period of time. Upon delivering the zukes to Fancy Farms, Sullivan was given a prenumbered delivery receipt ticket (delivery ticket) showing Wayne Sullivan as Grower number 116 and containing the following additional information: (a) date and time of delivery; (b) produce number, i.e., 37 indicating fancy zukes and 38 indicating medium zukes; (c) description of the produce, i.e., zukes, fancy; (d) a lot number containing number of delivery ticket, grower number and produce number, i.e. 2074-116-37 and; (e) the number of units of zukes received by Fancy Farm. The accounting for the zukes from the following delivery receipt ticket numbers is being contested in this proceeding: (a) 2127 dated November 8, 1994, lot nos. 2127-116-37 and 2127-116-38; (b) 22145 dated November 10, 1994, lot nos. 2145-116-37 and 2145-116-38; (c) 2181 dated November 15, 1994, lot nos. 2181-116-37 and 2181-116-38; (d) 2242 dated November 29, 1994, lot nos. 2242- 116-37 and 2242-116-38; (e) 2254 dated December 1, 1994, lot nos. 2254-116-37 and 2254-116-38; (f) 2289 dated December 7, 1994, lot nos. 2289-116-37 and 2289- 116-38 and; (g) 2313 dated December 10, 1994, lot nos. 2313-116-37 and 2313-116- 38. Once Fancy Farms found a customer for the zukes, Fancy Farms prepared a prenumbered billing invoice. Additionally, a bill of lading and load sheet was prepared and attached to the invoice. The bill of lading and load sheet would have the same number as the invoice. Basically, the invoice and bill of lading contained the customer's name and address, produce number, description of produce, number of units ordered, number of units shipped and the price per unit. The load sheet contains the customer's name, produce number, description of produce, units ordered, units shipped and the lot number for the units that made up the shipment. On numerous occasions Fancy Farms made adjustments to the selling price after the price had been quoted and accepted but before the invoice was prepared. Fancy Farms did not make any written notations in its records showing the adjustments to the price or the reasons for the adjustments to the price. Salvatore Toscano testified, and I find his testimony to be credible, that this usually occurred when there was a decrease in the market price after Fancy Farms made the original quote. Therefore, in order to keep the customer, Fancy Farms made an adjustment to the price. Sullivan was never made aware of these price adjustments. In accounting for the zukes delivered by Sullivan, Fancy Farms prepared a Grower Statement which included the delivery ticket number, the date of delivery, the lot number, grower number, produce number, description of the produce, quantity (number of units), price per unit and total due. Payment for the zukes was made to Wayne Sullivan from these statements by Fancy Farms. Sometimes payment may be for only one delivery ticket while at other times payment would be for several delivery tickets for different dates. A portion of Petitioner's composite exhibit 1 is the Florida Vegetable Report (Market Report), Volume XIV, Nos. 19, 21, 23, 31, 33, 37 and 40, dated October 28, 31, 1994, November 8, 10, 15, 29, 1994, and December 7, 12, 1994, respectively. The Market Report is a federal-state publication which reports the demand (moderate), market (steady), volume (units) sold and prices paid per unit for numerous vegetables, including zucchini, on a daily basis. The prices quoted for zucchini is for 1/2 and 5/9th bushel cartons and includes palletizing. The average cost for palletizing in the industry is 65 per carton. Fancy Farms receives and sells zukes in one-half (1/2) bushel cartons. Fancy Farms does not palletize the cartons for handling at its warehouse or for shipment. On November 8, 10, 15, 1994, Sullivan delivered a combined total of 130 units of fancy zukes and a combined total 206 units of medium zukes represented by delivery receipt ticket nos. 2127, 2145 and 218l, for a combined total of fancy and medium zukes of 336 units for which Fancy Farms paid Sullivan the sum of $1,171.00 as evidenced by the Grower Statement dated November 25, 1994. Forty eight units of fancy zukes represented by lot no. 2127-116-37 was billed out by Fancy Farms to P. H. Lucks, Inc. for $5.00 per unit. Without an explanation, Fancy Farms reduced the price to $2.50 per unit. However, Fancy Farms paid Sullivan $5.00 per unit for the 48 units of fancy zukes. Five units of medium zukes represented by lot no. 2145-116-38 were not accounted for by invoice. Thirty two units of fancy zukes represented by lot no. 2181-116-37 were not accounted for by invoice. Nineteen units of medium zukes represented by lot no. 2242-116-38 were not accounted for by invoice. Where there is no invoice the price quoted in the Market Report is used to calculate the amount due Sullivan. The amount due Sullivan from the Grower Statement dated November 25, 1994, is: Lot No. 2127-116-37: $5.00 per unit x 48 units (Invoice 3814) = $ 240.00 Lot No. 2127-116-38: $3.50 per unit x 45 units (Market Report) = $ 157.50 $3.50 per unit x 35 units (Invoice 3783) = $ 122.50 Lot No. 2145-116-37: $5.00 per unit x 12 units (Invoice 3818) = $ 60.00 $5.00 per unit x 38 units (Invoice 3822) = $ 190.00 Lot No. 2145-116-38: $3.00 per unit x 13 units (Invoice 3820) = $ 39.00 $3.00 per unit x 22 units (Invoice 3822) = $ 66.00 $3.00 per unit x 5 units (Market Report) = $ 15.00 Lot No. 2l81-116-37: $8.00 per unit x 32 units (Market Report) = $ 256.00 Lot No. 2181-116-38: $3.50 per unit x 86 units (Invoice 3778) = $ 301.00 Total owed to Sullivan = $1,447.00 Less: Amount paid Sullivan = $1,171.00 Ten per cent commission = 144.70 Net due Sullivan = 131.30 On November 29, 1994, Sullivan delivered 53 units of fancy zukes and 69 units of medium zukes as represented by delivery ticket no. 2242 for a combined total of 112 units for which Sullivan was paid $472.00 by Fancy Farms as represented by the Grower Statement dated December 7, 1994. The prices of $3.25 and $3.00 as indicated by invoice nos. 3941 and 3947, respectively are not indicative of the market for fancy zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $8.00 per unit for fancy zukes. Likewise, the price of $3.00 per unit for medium zukes as indicated by invoice no. 3927 is not indicative of the market for medium zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $6.00 per unit for medium zukes. The amount due Sullivan from the Grower Statement dated December 7, 1994, is: Lot no. 2242-116-37: $8.00 per unit x 53 units (Market Report) = $ 424.00 Lot no. 2242-116-38: $6.00 per unit x 69 units (Market Report) = $ 414.00 Total owed Sullivan = $ 838.00 Less: Amount paid Sullivan = $ 472.00 Ten Percent Commission = $ 83.80 Net due Sullivan = $ 282.20 On December 1, 7, 1994, Sullivan delivered a combined total of 51 units of fancy zukes and a combined total of 87 units of medium zukes for a combined total of 138 units of fancy and medium zukes represented by delivery ticket nos. 2254 and 2289 and was paid $516.00 for these zukes by Fancy Farms as represented by the Grower Statement dated December 15, 1994. There was no invoice for lot nos. 2254-116-37 or 2254-116-38. The Market Report established a market price of $8.00 and $6.00 per unit for fancy and medium zukes, respectively. The amount due Sullivan from the Growers Statement dated December 15, 1994, is: Lot No. 2254-116-37: $8.00 per unit x 39 units (Market Report) = $ 312.00 Lot No. 2254-116-38: $6.00 per unit x 20 units (Market Report) = $ 120.00 Lot No. 2289-116-37: $6.00 per unit x 12 units (Invoice 4049) = $ 72.00 Lot No. 2289-116-38: $3.50 per unit x 67 units (Invoice 3946) = $ 234.50 Total owed Sullivan = $ 738.50 Less: Amount paid Sullivan = $ 516.00 Ten Percent Commission = $ 73.85 Net due Sullivan = $ 148.65 On December 10, 1994, Sullivan delivered 27 units of fancy zukes and 18 units of medium zukes for a combined total of 45 units as represented by delivery ticket no. 2313 and was paid $211.50 for those zukes by Fancy Farms as represented by Growers Statement dated December 23, 1994. The 18 units of medium zukes represented by lot no. 2313-116-38 are not covered by an invoice. The Market Report established a unit price of $6.00 for the fancy zukes. Invoice no. 4075 billed the fancy zukes at zero without any explanation. Fancy Farms paid Sullivan $5.50 per unit for the fancy zukes. The Market Report established a per unit price of $8.00 for the fancy zukes which is more in line with the market than is the $5.50 per unit paid by Fancy Farms. The amount due Sullivan from the Grower Statement dated December 23, 1994, is: Lot No. 2313-116-38: $6.00 per unit x 18 units (Market Report) = $ 108.00 Lot No. 2313-116-37: $8.00 per unit x 27 units (Market Report) = $ 216.00 Total owed Sullivan = $ 324.00 Less: Ten percent commission = $ 32.40 Amount received by Sullivan = $ 211.50 Net due Sullivan = $ 80.10 The net amount owed to Sullivan by Fancy Farms: From Grower Statements dated: November 25, 1994 $ 131.30 December 7, 1994 $ 282.20 December 15, 1994 $ 148.65 December 23, 1994 $ 80.10 Total owed to Sullivan $ 642.25
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Fancy Farms Sales, Inc. be ordered to pay Petitioner Wayne Sullivan the sum of $642.25. DONE AND ENTERED this 28th day of November, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3015A The parties elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Wayne Sullivan 49 Myrtle Bush Lane Venus, Florida 33960 James A. Crocker Qualified Representative Fancy Farms Sales, Inc. 1305 W. Dr. M. L. King, Jr., Blvd. Plant City, Florida 33564-9006 Gulf Insurance Company Legal Department 4600 Fuller Drive Irving, Texas 75038-6506
The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 24th day of November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
The Issue Whether Respondents committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against them?
Findings Of Fact Based upon the record evidence and the stipulations entered into by the parties, the following Findings of Fact are made: Murray Wieder (Respondent Wieder) is now, and was at all times material hereto, a real estate broker licensed in the State of Florida pursuant to license number 0303130. His last license was issued c/o Wieder Realty, Inc., 900 S. Pompano Parkway, Pompano Beach, Florida 33069. Wieder Realty, Inc. is now, and was at all times material hereto, a corporation licensed in the State of Florida as a real estate broker pursuant to license number 0254413. Its last license reflects its address as 900 S. Pompano Parkway, Pompano Beach, Florida 33069. Respondent Wieder is now, and was at all times material hereto, the President of Wieder Realty, Inc., and its qualifying broker. Margaret Hoskins has been an investigator with the Department of Professional Regulation for the past year and a half. As part of her responsibilities, she conducts audits of escrow accounts maintained by real estate brokers licensed in the State of Florida. On April 27, 1989, Hoskins conducted a routine audit of Respondents' escrow accounts. Her investigation revealed that, on that date, Respondents maintained at Bank Atlantic in Fort Lauderdale, Florida, a noninterest-bearing escrow account (number 005-50199 0-3) with a balance of $14,577.39 and an interest- bearing account (number 005-175922-1) with a balance of $32,955.50. Respondents' "trust liability" with respect to these two accounts was $41,856.50. The $5,676.39 difference between the total balance of these two escrow accounts and Respondents' "trust liability" represented accrued interest on the monies deposited in the interest-bearing account. Respondents used the accrued interest to cover their incidental operating expenses. Hoskins further discovered as a result of her investigation that on March 13, 1989, Respondents had deposited $50,000.00 into the noninterest- bearing account, which prior to the transaction had had a balance of $950.58, and that on March 30, 1989, Respondents had withdrawn $25,000.00 from the interest-bearing account and had deposited $25,000.00 in the noninterest-bearing account. During the course of her investigation, Hoskins spoke with Respondent Wieder, who indicated to her that it was his practice to transfer funds from one of the Bank Atlantic escrow accounts to the other. Of the fully executed sales contracts and lease agreements Respondents' had on file, only one, the Kutner-Fox contract, contained a provision authorizing Respondents to place escrow monies in the interest-bearing account and to use the accrued interest for incidental operating expenses. The remaining contracts and leases were silent regarding the matter. Hoskins, in her conversation with Respondent, therefore attempted to find out from him if the escrow monies in the interest-bearing account, other than those attributable to the Kutner-Fox contract, had been deposited in the account with the permission of all interested parties. Wieder, who was otherwise very cooperative, failed to provide Hoskins with a direct answer to her question. Hoskins did not thereafter make any effort to contact these parties and ask them if they had given Respondents permission to place monies held in escrow in an interest- bearing account and to use the accrued interest to cover incidental operating expenses. Later on April 27, 1989, after Hoskins had completed her visit to their office, Respondents withdrew all of the funds from the interest-bearing account and deposited them in the noninterest-bearing account. They then closed the interest- bearing account. Respondents then transferred from the noninterest- bearing account to their operating account $5,676.39, the amount of interest that had accrued on the monies that had been in the interest-bearing account.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a final order in this matter finding the proof insufficient to establish Respondents' guilt of the offenses charged and dismissing the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of August, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990.
The Issue The issue for determination is whether Respondents owe Petitioner approximately $591 for a quantity of watermelons provided by Petitioner; secondarily, resolution of this issue 1 Correction of obvious error has been made to the style of this case, adding the name of Co-Respondent U.S. Fidelity and Guaranty Co., and eliminating the Department of Agriculture and Consumer requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a farmer who produces agricultural products, including watermelons. Petitioner also has trucks in which he hauls agricultural products, including watermelons. When all his trucks are in use, he frequently calls a friend, Freddy Bell, to provide some of Bell’s trucks to haul his products. Petitioner, in turn, helps Bell when Bell’s trucks are all in use. Respondent Wilson is a dealer of such products in the course of normal business activity. Respondent Wilson acts as a broker in these arrangements, receives the gross sales receipts from buyers and from that sum deducts costs of labor, freight, inspections, any other associated costs and his commission. The net balance of the gross sales receipts are paid to the melon producers. Respondent U. S. Fidelity and Guaranty Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes. Petitioner had not discussed any arrangement for the sale of his melons with Respondent Wilson. Instead, Petitioner discussed the sales price of his melons with Freddy Bell. Petitioner testified that Bell represented to Petitioner that he could get a price of $4.00 per hundred weight for Petitioner’s melons. Petitioner relied on Bell to provide transport his melons and obtain the promised price. While Bell did not testify at the final hearing, the parties are in agreement that Bell arranged for sale and shipment of Petitioner’s melons through Wilson. Wilson’s President, Robert M. Wilson, testified at hearing that Bell was not empowered by him to represent a guaranteed price for melons to anyone and that he could not affirm that Bell operated as his agent. He added that Melons were plentiful this past season and no melons were brokered on a guaranteed price basis. Testimony of Robert M. Wilson at the final hearing establishes that the arrangement between Respondent Wilson and Freddy Bell on Petitioner’s behalf was a brokerage arrangement and that the sale of the melons was subject to conditions and demands of the market place, i.e., that the melons would sell for the best possible price which Wilson could obtain for them. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Wilson or a guaranteed price by Wilson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing Petitioner's complaint.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Bo Bass 2829 Southwest SR 45 Newberry, FL 32669 John M. Martirano, Esquire US Fidelity and Guaranty Co Post Office Box 1138 Baltimore, MD 21203-1138 Robert M. Wilson, President Wilson and Son Sales, Inc. 2811 Airport Road Plant City, FL 33567 Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol - Plaza Level 10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800
