The Issue Whether the Respondent is indebted to the Petitioner as stated in the complaint filed by the Petitioner and, if so, in what amount.
Findings Of Fact Petitioner, Rosario and Vito Strano d/b/a Strano Farms, is a producer of Florida-grown agricultural products as set forth in Chapter 604, Florida Statutes. Respondent, Kelly Marinaro d/b/a Sunny Fresh Citrus Export & Sales Company, is a dealer of agricultural products doing business at 2101 15th Avenue, Vero Beach, Florida. On April 2, 1999, Respondent purchased garden variety tomatoes from Petitioner. The driver accepting the tomatoes on Respondent’s behalf acknowledged that the tomatoes were received in good condition by signing a truck manifest. The truck manifest provided, in pertinent part, "Any complaint must be made to [sic] Stano Farm in writing, during unloading, and accompanied by U.S.D.A. inspection." Subsequently, Respondent’s agent telephoned Petitioner to advise that there was a problem with the condition of the tomatoes. Respondent did not immediately forward an inspection report and did not promptly make an accounting for the tomatoes that were subsequently liquidated. Eventually, Respondent forwarded a copy of an inspection certificate for an inspection done on April 5, 1999. That certificate, while largely illegible, reportedly found the subject tomatoes to be in poor condition. Petitioner requested payment for the tomatoes as originally agreed by the parties. Its invoice for the 1040 tomatoes claimed $6,084.00 as the amount due. The invoice provided that checks should be payable to Homestead Tomato Packing Co., Inc., but that "any complaint must be made to Strano Farms in writing immediately during unloading, and accompanied by U.S.D.A. inspection." On or about June 29, 1999, by check made payable to Homestead Tomato Packing Co., Inc., Respondent forwarded the sum of $208.00 in payment for the subject tomatoes. On the backside of the payment check Respondent had stamped the following: "Acceptance of this check constitutes payment in full for invoice #12819." Subsequently, Homestead Tomato Packing Co., Inc., negotiated the check. Petitioner did not provide a written dispute regarding the subject tomatoes prior to the tender of the partial payment. In July of 1999 Petitioner filed a Complaint in the amount of $5,876.00 with the Department of Agriculture and Consumer Services, Bureau of License and Bond, Division of Marketing. The Complaint acknowledged receipt of the $208.00 partial payment but maintained no account of the sales or inspection report was included with the payment to justify the low return on the subject tomatoes. At the hearing in this cause Respondent provided an accounting for the tomatoes that claimed the subject tomatoes were sold for $2,984.00. The accounting acknowledged that $336.00 would have been due to Petitioner. Such amount was not the tendered payment and was not provided to Petitioner at the time of partial payment. To date the parties have been unable to resolve the disputed value of the tomatoes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services, Bureau of License and Bond, Division of Marketing, enter a final order requiring Respondent to remit $5,876.00 to Petitioner as provided by law. DONE AND ENTERED this 13th day of March, 2000, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 13th day of March, 2000. COPIES FURNISHED: United Pacific Insurance Company Three Parkway Philadelphia, Pennsylvania 19102-1376 Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Kelly Marinaro Sunny Fresh Citrus Export & Sales Company 2101 15th Avenue Vero Beach, Florida 32960 Jack Moon Strano Farms Post Office Box 343064 Florida City, Florida 33034 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0810
The Issue Does Respondent Horizon Produce Sales, Inc. (Horizon) owe Petitioner Richard Sapp, d/b/a Sapp Farms (Sapp Farms) $5,484.50 as alleged in the Amended Complaint filed herein by Sapp Farms?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At times pertinent to this proceeding, Sapp Farms was a "producer" as defined in Section 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Tomatoes come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. Horizon is a Florida Corporation, owned entirely by Donald E. Hinton, and located in Sydney, Florida. At times pertinent to this proceeding, Horizon was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Horizon was issued License Number 10584, supported by Bond Number 58 84 19 in the amount of $16,000 written by Gulf Life Insurance Company, as Surety, with an inception date of September 26, 1998, and an expiration date of September 25, 1999. By Invoice numbered 1262, Sapp Farms’ Exhibit numbered 6, dated June 18, 1999, with a shipping date of June 16, 1999, Sapp Farms sold and delivered to Horizon several varieties and sizes of tomatoes in 25-pound cartons at an agreed-upon price of $9.00 per 25-pound carton for 267 cartons and $8.00 per 25-pound carton for 104 cartons for a total amount of $3,235.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. By check dated July 3, 1999, Horizon paid Sapp Farms $1,415.00 on these tomatoes leaving a balance owing of $1,820.00. By Invoice numbered 1263, Sapp Farms’ Exhibit numbered 10, dated June 22, 1999, with a shipping date of June 22, 1999, Sapp Farms sold and delivered to Horizon 122 25-pound cartons of extra large pink tomatoes at $8.00 per 25-pound carton, 51 25- pound cartons of large pink tomatoes at $8.00 per 25-pound carton, and 296 25-pound cartons of 125-150 count Roma tomatoes at $8.00 per 25-pound carton for a total invoiced price of $3,752.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for these tomatoes. By Invoice numbered 1272, Sapp Farms’ Exhibit numbered 15, dated June 24, 1999, with a shipping date of June 23, 1999, Sapp Farms sold and delivered to Horizon 70 25-pound cartons of extra large tomatoes at an agreed upon price of $8.50 per 25- pound carton for a total price of $595.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for those tomatoes. Sapp Farms agrees that it owes Horizon $682.50 in freight charges. See Sapp Farms’ Exhibit numbered 12 and the Amended Complaint filed by Sapp Farms. Horizon contends that it did not agree to purchase the tomatoes at an agreed upon price per 25-pound carton but agreed to "work" the tomatoes with Horizon’s customers and to pay Sapp Farms based on the price received for the tomatoes from its customers less any freight charges, etc. Additionally, Horizon contends that it made contact or attempted to make contact with Sapp Farms regarding each of the loads and was advised, except possibly on one load, by either Mark Davis or Richard Sapp that a federal inspection was not necessary and to "work" the tomatoes as best Horizon could. The more credible evidence is that neither Mark Davis nor Richard Sapp was timely advised concerning the alleged condition of the tomatoes. Furthermore, there is insufficient evidence to show that the condition of the tomatoes when delivered to Horizon’s customers had deteriorated to a point that resulted in rejection by Horizon’s customers. The more credible evidence shows that neither Mark Davis nor Richard Sapp advised Horizon that there was no need for a federal inspection or that Horizon could "work" the tomatoes with Horizon’s customers. The more credible evidence is that Horizon agreed to purchase Sapp Farms’ tomatoes at an agreed-upon price and that upon those tomatoes being loaded on Horizon’s truck, Horizon was responsible to Sapp Farms for the agreed-upon price. Sapp Farms timely filed its Amended Complaint in accordance with Section 604.21(1), Florida Statutes, and Horizon owes Sapp Farms for tomatoes purchased from Sapp Farms on Invoice numbered 1262, 1263, and 1272 less the partial payment on Invoice numbered 1262 of $1,415 and freight charges of $682.50 for total amount due of $5,484.50.
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 granting Sapp Farms relief by ordering Horizon Produce Sales, Inc. to pay Sapp Farms the sum of $5,484.50. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2000. COPIES FURNISHED: Honorable Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Sapp Sapp Farms 4720 Gallagher Road Plant City, Florida 33565 Donald E. Hinton, Qualified Representative President, Horizon Produce Sales, Inc. 1839 Dover Road, North Post Office Box 70 Sydney, Florida 33587 Michael E. Riley, Esquire Rumberger, Kirk and Caldwell A Professional Association Post Office Box 1050 Tallahassee, Florida 32302 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact Shortly before January 21, 1985, Tommy P. Adams, on behalf of Mid-South Distributors, placed an order with salesman Daniel Garcia, of Corky Foods Corporation, for the purchase of tomatoes. Mid-South Distributors was to purchase one hundred and forty-four (144) 5x6, eight hundred and sixty-four (864) 6x6, and five hundred and seventy-six (576) 6x7 boxes of tomatoes from Corky Foods. The parties agreed that the price of each unit would be fixed at $1.00 less than "market price." However, no price was established at the time of sale because tomato prices were unstable due to a freeze which passed through the area on January 19 and 20, 1985. Mid-South Distributors and Corky Foods had used this type of billing arrangement satisfactorily in past business transactions. On January 21, 1985, the tomatoes were shipped to Mid-South Distributors from the packing house in Boynton Beach, Florida. Thereafter, on January 23, 1985, an invoice was sent by Corky Foods to Mid-South Distributors establishing the price of the tomatoes as follows: $19.15 per unit for the 5x6 containers; $17.15 per unit for the 6x6 containers; and $15.15 per unit for the 6x7 containers. Mid-South Distributors remitted payment to Corky Foods based on the following assumed market prices: $16.00 for the 5x6; $14.00 for the 6x6; and $12.00 for the 6x7 boxes of tomatoes. Corky Foods Corporation sold 5x6 boxes of tomatoes to other dealers during the period in question for 519.15 per unit; 6x6 boxes of tomatoes during the period in question for $17.15; and 6x7 boxes of tomatoes during the time in question for $15.15. Adams Brokerage (Tommy P. Adams) purchased 5x6 boxes of tomatoes from area sellers during the time in question for $16.00; 6x6 boxes of tomatoes from area sellers during the time in question for $14.00; and 6x7 boxes of tomatoes from area sellers during the time in question for $12.00. The Southeastern Fruit and Vegetable Report, printed in Thomasville, Georgia on Thursday, January 24, 1985, set market prices on tomatoes in "South and Central Florida" at $20.00 for 5x6, $18.00 for 6x6, and $16.00 for 6x7. The Southeastern Fruit and Vegetable Report is often used as a guideline in establishing prices for the industry; the prices reported are based in part on information or "quotes" received from different shippers in the area under consideration. Notably, a shipper's quoted price for a particular day may not be the same price at which the shipper actually sells the commodity. The Southeastern Fruit and Vegetable Report used the geographical area of "South and Central Florida" in establishing market prices for tomatoes. The south and central Florida area is a reasonable geographical boundary to consider in establishing market prices for tomatoes sold at individual locations within those boundaries. The customary way in which Corky Foods Corporation determines market prices is by calling other large area packing houses, and by referring to the Southeastern Fruit and Vegetable Report. In establishing the prices for the tomatoes herein discussed, Corky Foods Corporation consulted (among other area packers) Florida Tomato Packers, a large tomato packer located in Homestead, Florida. The locations at which Tommy P. Adams purchased tomatoes for the lower prices included Lantana, Naples, Bonita Springs, Boca Raton, and Immokalee. Area market prices for tomatoes immediately prior to the freeze were as low as $11.00 for 5x6; $10,00 for 6x6; and $8.00 for 6x7. Generally, severe weather conditions, such as a freeze, will cause market prices for tomatoes to rise. The Respondents did not dispute the quality or condition of the tomatoes; market price was the sole source of disagreement between the parties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing Corky Foods Corporation's Amended Complaint herein. DONE AND ORDERED this 8th day of November, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 8th day of November, 1985. APPENDIX Pursuant to Section 120.59(2), Florida Statutes (1983), following is submitted in response to Petitioner's and Respondent's Proposed Findings of Fact: Petitioner's Proposed Findings of Fact Paragraph: Ruling: Accepted; see paragraphs 1 and 2, Recommended Order. Rejected as a conclusion of law and not supported by the evidence. Partially accepted; see paragraph 7, Recommended Order. Partially accepted; see paragraphs 6 and 7, Recommended Order. Facts not included therein were rejected as not being established by evidence presented at the hearing. Rejected; irrelevant and not supported by the evidence. Accepted; see paragraph 4, Recommended Order. Accepted; see paragraphs 1 and 2, Recommended Order. Accepted; see paragraph 10, Recommended Order. Rejected; not a finding of fact. Respondent's Proposed Findings of Fact Paragraph: Ruling: a law. 1 Partially accepted; see paragraphs 1-10, Recommended Order. Rejected to the extent that the majority of this paragraph contains statement of the issues and conclusions of COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building Room 513 Tallahassee, Florida 32301 Mr. Joe W. Kight Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301 Donna L. Fuller Vice-President Corky Foods Corporation Post Office Box 1019 Boynton Beach, Florida 33425 Mid-South Distributors, Inc. 2601 South Blossom Trail Orlando, Florida 32805
Findings Of Fact On February 23 and April 19, 1985, Respondent purchased woody ornamental plants from Pleasant View Nursery for a total purchase price of $650.50. The only payment on this account made by Respondent was $100 on November 15, 1985, leaving a balance due of $550.50. On February 23 and March 16, 1985, Respondent purchased citrus trees from Hillsborough Wholesale Nursery for a total purchase price of $720.90. The only payment on this account made by Respondent was $150, leaving a balance due of $570.90. Arthur A. Yambor, Respondent's President, is a licensed dealer in agricultural products under the provisions of Sections 604.15 - 604.30, F.S., and is bonded through United States Fidelity and Guaranty Company, Co- Respondent, as required by Section 604.19. Petitioners filed their complaints concerning this matter with the Department of Agriculture within nine months from the date of sale. Payment in full for the sales in question was to have been made within thirty days of the date of each sale. Respondent admits that the sales were made, and that Respondent did receive the agricultural products from Petitioner, for which these claims are made. However, Arthur A. Yambor testified that Respondent has not made full payment on these accounts because he believes the citrus trees purchased from Hillsborough Wholesale Nursery were infected with citrus canker which resulted in these, as well as other trees in his nursery, having to be destroyed. He has refused to make further payment to Petitioners due to the financial loss he sustained as a result of, what he believes to have been, infected trees he received from Hillsborough Wholesale Nursery. However, no proof was offered on behalf of Respondent that, in fact, trees purchased from Hillsborough Wholesale Nursery were infected. While Respondent did receive citrus canker compensation, there is no evidence that the canker resulted from citrus trees purchased from Hillsborough Wholesale Nursery.
Recommendation Based upon the foregoing, it is recommended that the Department of Agriculture enter a Final Order requiring Respondent to make full payment on the remaining indebtedness claimed by Petitioners. DONE and ENTERED this 9th day of May, 1996 in Tallahassee, Florida. DONALD D. CONN, 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 9th day of May, 1986. COPIES FURNISHED: Douglas A. Holmberg, President Pleasant View Nursery & Hillsborough Wholesale Nursery 1321 N. Valrico Road Valrico, Florida 33594 Paul B. Boswell, Manager 1321 N. Valrico Road Valrico, Florida 33594 Arthur A. Yambor, President Shelton's of Brandon, Inc. 1351 W. Brandon Boulevard Brandon, Florida 33511 United States Fidelity and Guaranty Company Post Office Box 1138 Baltimore, Maryland 21203 Joe Kight, Chief Bureau of License and Bond Room 418, Mayo Building Tallahassee, Florida 32301 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to additional compensation for tomatoes that it sold Respondent.
Findings Of Fact On April 4, 1996, Frank Basso of Petitioner talked to H. D. Budd of Respondent H. D. Budd Farms, Inc. (Respondent). Petitioner represents 31 food brokers in South Florida, of which eight handle tomatoes. Respondent purchases tomatoes for Publix and other chain supermarkets. Respondent and Petitioner have done business in the past, and Mr. Basso knew that Mr. Budd would require tomatoes of the highest quality. In the past, Mr. Basso would ship tomatoes to Mr. Budd, who would take only those tomatoes that met his high standards. During their telephone conversation on April 4, Mr. Budd asked Mr. Basso how many of the tomatoes would make U. S. Grade Number 1. Mr. Basso told him that 85 percent of them would. They agreed on a price of $17 per box, but Mr. Budd warned Mr. Basso that he would only pay $17 per box if the tomatoes graded out at 85 percent U. S. Grade Number 1; if they did not, Mr. Budd stated that he would pay Mr. Basso an unspecified lesser amount. In the past, Mr. Basso has allowed Mr. Budd to retain nonconforming tomatoes and try to sell them for whatever he could. In those cases, the parties' agreement was that Mr. Budd would not pay the asking price for the tomatoes, but the amount he owed Mr. Basso would be based on what he could sell the tomatoes for. The two parties agreed that Petitioner would ship 810 25-pound boxes of tomatoes to Respondent. Petitioner shipped the tomatoes on the evening of April 4 for the six-hour trip to Plant City. The only documentation accompanying the shipment, or in existence at the time, was a shipping manifest. The document contains few conditions of the sale. It describes the tomatoes as vine ripe, extra large. It states that the shipment, which is free on board at the shipper's warehouse, consists of 810 25- pound boxes. The shipping manifest does not refer to any conditions of sale, such as warranties or procedures if the tomatoes are unsatisfactory to Respondent. The tomatoes arrived at Respondent's plant during the early-morning hours of April 5. As soon as the plant opened, Respondent's employees began unloading the tomatoes. Mr. Basso telephoned Mr. Budd first thing in the morning, and Mr. Budd said that he would call back Mr. Basso as soon as they had finished grading the shipment. Later in the day, Mr. Budd and Mr. Basso spoke again on the phone. Mr. Budd informed Mr. Basso that the tomatoes had not graded out as promised. Instead, they were only 70 percent U. S. Grade Number 1. Two days later, Mr. Basso sent Mr. Budd a fax of an invoice showing the shipment of April 4 of 810 25-pound boxes. Unlike the shipping manifest, this invoice showed a price of $18 per box and total price of $14,580. This invoice also contained disclaimers requiring inspections prior to claims and imposing a federal trust interest in the tomatoes pending full payment. These were not conditions of the agreement between Mr. Budd and Mr. Basso. Petitioner has failed to prove that Respondent mishandled the tomatoes under their agreement. Consistent with their past practice, Respondent sold the nonconforming tomatoes for the best prices that it could get. Mr. Budd accurately calculated that Respondent owed Petitioner $12,150, and Respondent sent Petitioner a check in that amount on April 19, 1996.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the Complaint. ENTERED on October 9, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this October 9, 1996. COPIES FURNISHED: Frank Basso Iori Farms Post Office Box 3271 Key Largo, Florida 33037 H. D. Budd 3701 East Trapnell Road Plant City, Florida 33567 Ohio Farmers Insurance Company Legal Department One Park Circle Westfield Center, Ohio 44251-5001 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 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 central issue in this case is whether FMG met the qualifications to bid as set forth in the Invitation to Bid. Specifically involved is whether or not FMG met the requirement of having been engaged successfully in the business of food service management for at least a ten (10) year period prior to the date of the bid. As a secondary issue, FMG argued that the requirement is a minor irregularity which, by rule, should be waived.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, FMG organized and filed its Articles of Incorporation on November 8, 1985. The Florida corporation has remained active with all fees due the Secretary of State having been paid through December 31, 1987. On July 14, 1986, Thomas David Witten, became the majority shareholder and president of FMG. Mr. Witten's prior work experience included seventeen years of food service management with the Marriott Corporation followed by six years with Canteen. Mr. Witten left Canteen in 1985. While with Canteen, Mr. Witten had Successfully negotiated the contract at South Florida State Hospital for the food service management program. Canteen had obtained this contract after the bid process in 1981. On May 4, 1987, HRS mailed an Invitation to Bid (ITB) to obtain competitive prices for the food service management program contract to commence July 1, 1987. The ITB required the bidders to have engaged Successfully in the business of food service management for at least ten years prior to the date of the bid. The bidder was also required to furnish, as a part of its bid, a written statement evidencing its ability to accomplish the Specified work. As part of the written statement, the bidder was required to include information as to the immediate availability or ownership of the necessary equipment to perform the work, and the financial worth or reputability of the bidder together with the experience which the bidder has had in Successfully completing projects of a similar size, scope and responsibility The ITB also set forth specification; one of which was a performance and payment surety bond in the amount $250,000 to be furnished by the bidder to the hospital upon award of the contract. On May 14, 1987, HRS conducted a pre-bid conference. In attendance were representatives from Canteen, FMG, ServiceMaster, Food Service, and Service America Corporation (not a party to these proceedings). At this pre-bid conference no question was raised by FMG as to the qualification requiring ten (10) years experience in the business of food service management. The bid proposal submitted by FMG responded to the bidder's qualification by enclosing the curriculum vitae for members of FMG's professional staff. Documents regarding the experience of T. David Witten, Jimmy Blicharz, Williams Cox and Robert J. Trinley were included. Mr. Blicharz's career summary described thirteen years of operational and marketing management in the food service industry. Mr. Witten's curriculum vitae described twenty-three years of food service management experience as previously described. Mr. Cox's experience dated to 1966 and detailed food service activity as both food service director and dietician for various health care providers. Mr. Trinley's experience included over twenty-five years of administrative work with various health care providers. FMG described its bidder experience by listing work which had been performed by its individual employees at various institutions. In each of the instances, the experience noted was as a member of the staff of another company- not FMG. FMG, the company, was the bidder for bid number 595-530. HRS opened the proposals for bid number 595-530 on June 10, 1987. Additional information was requested from all bidders. On June 11, 1987, HRS requested the following information from FMG: Demonstration of ten (10) years of corporate history and corporate management of food services for institutions of Similar size and complexity. A written statement evidencing FMG's ability to accomplish the Specified work. FMG's reply to the HRS request maintained that the experience of its principal employees qualified FMG under the bid requirement Clearly, FMG had not successfully engaged in the business of food Service management for at least ten years prior to its bid proposal. HRS did not waive the ten year requirement. HRS, Food Service, ServiceMaster, and Canteen have agreed to readvertise bid number 595-530. The results of the bid tabulation for bid number 595- 530 were as follows: A. Food Service $103,979 B. ServiceMaster $110,000 C. FMG $ 96,900 D. Canteen $106,000 Four other potential bidders did not submit a proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That HRS enter a Final Order denying the protest filed by FMG. DONE and RECOMMENDED this 22nd day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 22nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER 87-3131BID, 87-3132BID, 87-3133BID Rulings on Petitioner, FMG's Proposed Findings of fact: Accepted, finding of fact paragraph 1 Accepted, finding of fact paragraph 2 Paragraphs 3 and 4 are accepted but deemed unnecessary since, at best, the described activities have only occurred within the last two years. Paragraph 5 is accepted, finding of fact paragraph 2. Paragraphs 6 and 7 accepted but are unnecessary to the resolution of the issues in this cause. Paragraph 8 is accepted in material part in finding of fact, paragraph 6. Paragraph 9 is accepted and addressed in material part in findings of fact paragraphs 2 and 6. Paragraph 10 is accepted as provided in findings of fact, paragraphs 2 and 6 the balance of paragraph 10 is deemed unnecessary. Paragraph 11 is accepted as addressed in finding of fact, paragraph 6. Paragraph 12 is rejected as unnecessary. Paragraph 13 is accepted only to the extent addressed in findings of fact, paragraphs 10 and 11. The balance is rejected as contrary to the weight of the evidence. Paragraph 14 is rejected as an argumentative conclusion outside the scope the issues to be resolved. Paragraph 15 is accepted in finding of fact, paragraph 14. Paragraph 16 is rejected . Mr. Witten's individual experience is not at issue. Mr. Witten, individually, was not the bidder. FMG chose to submit the proposal and waived its right to challenge the bid qualification requiring ten years experience. The conclusion reached in Paragraph 16 is contrary to the weight of the evidence and the law. Paragraph 17 is rejected. The conclusion reached is argumentative and contray to the weight of evidence and the law. Rulings on HRS' Proposed Findings of Fact: Accepted. Accepted. Accepted but deemed unnecessary to the resolution of the issues of this case. Accepted as addressed in finding of fact, paragraph 3. Accepted as addressed in finding of fact paragraph 3. Accepted as to date for incorporation otherwise rejected as unnecessary. Accepted. Accepted. Accepted. Paragraph 10 and 11 are addressed in material part in finding of fact, paragraphs 6, 7, 10, and 11. Paragraph 12 is accepted. Paragraph 13 is accepted to the extent that its alleges the requirement was considered indispensable, otherwise rejected as unnecessary or not supported by evidence. Paragraphs 14 and 15 are accepted. Rulings on Canteen's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted but unnecessary to the resolution issues in this cause. Accepted. Accepted. Accepted but unnecessary. Accepted. Accepted. Accepted but unnecessary as the parties agreed the sole issue was whether or not FMG met the bid qualification requiring ten years of experience. Rejected. All parties had waived any right to challenge the ten years requirement. Rejected as argumentative Allegation that bid was done as corporation not individually is accepted. Accepted. Rejected. FMG's position is that qualification should be waived. Accepted. COPIES FURNISHED: William E. Williams, Esquire Fuller & Johnson, P.A. 111 North Calhoun Street Tallahassee, Florida 32302 Phil Dresch 2304 Parklake Drive, North East Building 9, Suite 290 Atlanta, Georgia 30345 Roy C. Young, Esquire Young, VanAssenderp, Varnadoe & Benton, P.A. 225 South Adams Street, Suite 200 Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., Esquire District 10 Legal Counsel East Broward Boulevard Fort Lauderdale, Florida 33301-1885 Celeste Rossi, President Duval Street West, Florida 33040 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-700
Findings Of Fact Petitioner, Sunbelt Tomato Company (STC), is a tomato producer located in Quincy, Florida. Respondent, Terrific Tomato Company (TTC), is an agricultural dealer in Pompano Beach, Florida, subject to the licensing requirements of the Department of Agriculture and Consumer Services (agency). As such, TTC is obligated to obtain a dealer's license from the agency, and to post a surety bond executed by a surety corporation to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet the latter requirement, TTC has obtained surety bond number 987-78-50 in the amount of $25,000 from respondent, Fidelity and Deposit Company of Maryland. On or about July 5, 1985, STC's president, Branch Mahaffey, accepted a telephone order from Emerson Elliott, whose wife Teresa owned Orlando Tomato Company (OTC). Elliott wished to purchase two loads of tomatoes on behalf of TTC. They agreed upon a price of $12,909.60 and $11,780.80, respectively, for the two loads. It was further understood that TTC was to receive the invoices, and that they were to be shipped to TTC in care of Quality Tomato and Produce (QTP) in Kansas City, Missouri, which was the ultimate buyer. In addition, both loads were to be U.S. combination grade (1 and 2 grades), which means that 75 percent of the tomatoes in each lot must meet U.S number 1 grade standards and the remaining 25 percent must meet U.S. number 2 grade standards. However, this was an erroneous instruction by OTC, because TTC had actually instructed Elliott to arrange for the purchase of two loads having at least 85 percent of the tomatoes meeting U.S. grade number 1 standards. The latter standard is more stringent than the combination grade erroneously ordered by OTC. It was also understood that TCC would arrange to send two trucks to Quincy to pick up the loads on July 8. Shortly after talking with Elliott, Mahaffey had a second telephone call concerning the order from TTC's president, Broderick Bolton. Bolton asked Mahaffey if Elliott had made arrangements on behalf of TTC to buy two loads of tomatoes at the agreed upon prices. Mahaffey responded that he had, and Bolton then told him he would have two trucks sent to Quincy on July 8 to pick up the shipments. The first load was picked up as scheduled on July 8 by a QTP vehicle which carried the tomatoes to its warehouse in Kansas City. After the second truck failed to arrive on the same day, Mahaffey telephoned Bolton on July 9 and asked where was the truck for the second load. Bolton told Mahaffey to arrange the transportation since QTP evidently did not have a truck available. Mahaffey then hired Steve Miller Produce Company in Thomasville, Georgia to pick up the second load. By this time, however, the tomatoes had been picked and had sat in the summertime heat for 24 hours because of TTC's failure to provide transportation. The second load, consisting of three lots, left Quincy on July 9 and arrived in Kansas City where it was stored in QTP's warehouse facilities. QTP was apparently dissatisfied with the quality of tomatoes and arranged for an inspection of the produce on July 11 by an inspector of the United States Department of Agriculture. The inspection report has been received in evidence as petitioner's exhibit 1. It reflected that there was "no decay" and that the load met "quality requirements." However, the inspector found 8 percent of lot 1 to have damage by bruising, 5 percent to have damage by sunken discolor, and 20 percent to have damage by skin checks. Lot 2 was found to have 4 percent damage by sunken discolored areas and 21 percent to have damage by skin checks. The final lot was found to have 6 percent damage by sunken discolored areas and 18 percent damage by skin checks. This information was relayed to Bolton who telephoned Elliott and told him there were problems with the load, and that less than 85 percent of the tomatoes met U.S. grade number 1 standards. The two agreed that Bolton should simply try to get the highest price possible for the second load. Bolton telephoned Mahaffey around July 12 and told him there was a problem with the second load. However, Mahaffey felt no price adjustment was necessary because of the buyer's delay in picking up the shipment. Even so, in an effort to resolve the matter quickly, Mahaffey told Bolton he would settle for $6.00 per box instead of the previously agreed upon prices which ranged from $6.50 to $8.00 per box. Mahaffey also asked for a copy of the inspection report. Bolton was noncommittal as to the $6.00 offer and said that he would be back in touch with Mahaffey at a later date. Mahaffey did not hear from Bolton again. Sometime later, Bolton telephoned QTP and relayed Mahaffey's offer to settle for $6.00 per box. The offer was apparently refused. In the last half of August, Mahaffey received the original inspection report dated July 11 and a second report dated July 17. The latter report contained the results of a second inspection of the second load conducted by the same federal inspector. Surprisingly, on the second inspection the inspector found the tomatoes to be of better quality than when he had first inspected them a week earlier. No explanation for this variance was given. The inspector noted on the second report that 1 percent of the tomatoes were now decaying, and that only 4 percent of the tomatoes were damaged by bruising while 24 percent had sunken discolored ranges. On an undisclosed day in late August Mahaffey received a check drawn on TTC's account on August 19 made payable to OTC in the amount of $3,680. The check was originally sent by Bolton to OTC which then forwarded the unendorsed check to Mahaffey. The $3,680 represented the amount which QTP paid TTC after disposing of the second load. Mahaffey did not cash the check, and immediately filed the complaint herein with the agency. In October, he received full payment from OTC for the first load, but the second load remains in controversy. Bolton stated he was forced to accept whatever price QTP was willing to pay for the second load of tomatoes since the goods were damaged and did not meet the specifications that the buyer requested. He acknowledged that leaving the tomatoes in the field for an extra day could affect the quality and color of the tomatoes. Bolton took no brokerage fee on the shipment, and turned over to STC all of the proceeds ($3,680) received from QTP. It is TTC's position that if STC has a claim, it should be against OTC rather than his company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Terrific Tomato Company be directed to pay Sunbelt Tomato Company, Inc. $11,780.80 as full payment for a shipment of tomatoes sold by STC to TTC on July 9, 1985. In the event TTC does not comply with this directive, the surety for said dealer shall pay the amount due to the agency for the benefit of the producer. DONE and ORDERED this 25th day of July, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 25th day of July, 1986. COPIES FURNISHED: Branch Mahaffey, President Sunbelt Tomato Co. Post Office Box 201 Quincy, Florida 32351 Broderick Bolton, President Terrific Tomato Co. Post Office Box 2145 Pompano Beach, Florida 33061 Mr. Joe Kight Bureau of License & Bond Room 418, Mayo Bldg. Tallahassee, Florida 32301 Fidelity and Deposit Co. of Maryland 909 Brickell Plaza, Suite 501 Miami, Florida 33131
Findings Of Fact At all times material hereto, Respondent, Twin- Rose Produce Corporation (Twin-Rose) was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. Twin-Rose was bonded by Respondent, Ohio Casualty Insurance Company (Ohio Casualty). On March 6, 1986, Petitioner, Sun Coast Farms of Dade, Inc. (Sun Coast), sold and delivered to Twin-Rose 100 hampers of wax beans at $10.35 per hamper. Twin-Rose has refused to pay, and claims that the quality or condition upon delivery was such as to render the product unmarketable. The proof establishes that on March 6, 1986, Twin- Rose purchased produce from a number of growers, and loaded the produce on its truck for delivery and resale in Montreal, Canada. Included within this shipment were the 100 hampers of wax beans Twin-Rose had purchased from Sun Coast, as well as 150 hampers of wax beans it had purchased from another grower, Five Brothers. Twin-Rose asserts that upon delivery of the produce in Montreal on March 10, 1986, all the produce was in good condition except the 100 hampers of wax beans it had purchased from Sun Coast. Those beans, Twin-Rose asserts, were spotted and of no commercial value. The proof, however, fails to support TwinRose's assertion. When Twin-Rose took delivery of the wax beans from Sun Coast on March 6, 1986, its driver acknowledged on the truck manifest that they were received in good condition. Each of the 100 hampers was clearly marked to reflect that it was produced by grower number 35, contained wax beans, and grown in Florida City, Florida. There is no evidence of the condition of the 150 hampers of wax beans Twin-Rose purchased from Five Brothers on March 6, 1986, or whether those hampers were marked in any fashion. To support its assertion that the wax beans purchased from Sun Coast were deficient in quality, as distinguished from those purchased from Five Brothers, Twin-Rose offered in evidence an inspection certificate and a report of travel issued by the Ministry of Agriculture, Canada. (Respondent's exhibits 3 and 4). This proof was not, however, persuasive. The inspection certificate contains a significant space in which the inspector is to note any marks on the packages. In this case, the inspection report reflects that none of the hampers were marked. As importantly, the inspection certificate and report of travel offered by Twin-Rose (Respondent's exhibits 3 and 4) have clearly been altered to reflect 100 hampers of wax beans, as opposed to the 103 hampers that appeared on the original documents. 1/ Consequently, the proof offered by Twin-Rose to support its assertion that the beans it purchased from Sun Coast were deficient in quality, as opposed to those purchased from Five Brothers, is unpersuasive and not creditable. Twin-Rose is indebted to Sun Coast in the sum of $1,035.00 for the purchase of 100 hampers of wax beans at $10.35 per hamper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order directing Respondent, Twin-Rose Produce Corporation, to pay Petitioner, Sun Coast Farms of 0ade, Inc., the sum of $1,035.00. It is further RECOMMENDED: That such final order provide that if Respondent, Twin- Rose Produce Company, fails to timely pay the Petitioner that Respondent, Ohio Casualty Insurance Company, be ordered to pay the Department, and that the Department reimburse the Petitioner, all in accordance with Section 604.21(8), Florida Statutes. DONE AND ORDERED this 5th day of June, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1987.
Findings Of Fact On March 25, 1980, Willard Sutliff, broker for Okun and Charles Weisinger, salesman for Six L's, met at the Six L's packing facility in Immokalee. On that date, Sutliff inspected, purchased and took delivery of a load of tomatoes for an agreed price of $10,198.50. The tomatoes were shipped the same day by transport arranged by Sutliff, and arrived in New York at the Okun facility on March 28, 1980. They were immediately inspected by a United States Department of Agriculture (U.S.D.A.) representative and found to be "Now approximately 60 percent U.S. No. 1 quality, 9 percent soft, 5 percent decay." Following harvesting, sorting and packing, tomatoes are taken to the Six L's "gas room" where they are normally held for a period of 48 to 60 hours prior to shipment. During this period the tomatoes continue to ripen. The tomatoes at issue here had been placed in the gas room on March 19 and were well past the optimum shipping point at the time of sale on March 25. These tomatoes were initially inspected by a U.S.D.A. representative on March 19 at the Six L's facility and were assigned a U.S. combination grade. This grade indicates the tomatoes are a combination of U.S. No. 1 and U.S. No. 2 grade, but are at least 60 percent U.S. No. 1. Sutliff was aware of the March 19 U.S.D.A, report, but contends he purchased the load with the understanding from Weisinger that the tomatoes would grade at least 75 percent U.S. No. 1, and his broker's memorandum so indicates. Weisinger denies such representation. The Six L's office manager received his copy of the broker's memorandum on April 3 and regarded the 75 percent U.S. 1 entry as a minor error not requiring repudiation since the tomatoes had already been delivered. Sutliff was accorded ample opportunity to inspect the tomatoes prior to purchase. Although the tomatoes were in crates on pallets which limited his access, Sutliff did observe the color of the tomatoes and also determined that they were "second picking" rather than "crown picking". Had he elected to do so, Sutliff could have required the crates to be opened or requested a further U.S.D.A. inspection. Sutliff purchased the load at a price somewhat lower than market for high grade tomatoes. Weisinger contends he "discounted" the price due to their ripeness while Sutliff contends he paid the lower price because the tomatoes were second picking and were not represented to be 85 percent U.S. No. 1 which would have justified a higher price. The price was arrived at through negotiation and, obviously, all relevant factors including the ripened condition of this highly perishable commodity were taken into account by the parties. The tomatoes were acknowledged to be in good condition by the trucker when he accepted them for loading on March 25th. The temperature records and the three days for transit to New York indicate reasonable shipping conditions. Thus, the deterioration was not due to mishandling, but primarily to the age of the tomatoes when they arrived in New York on March 28th. Okun did not attempt to reject this shipment upon delivery in New York, nor did it furnish any written notice of a price dispute. Okun did, however, furnish Six L's a copy of the March 28 U.S.D.A. inspection report. The parties became involved in a separate dispute in late March when Sutliff claims he purchased a second load of tomatoes from Weisinger which he intended to leave in the gas room for further ripening. When he attempted to take delivery, Petitioner refused claiming no promise of sale or contract had been made. Sutliff's diary and broker's memorandum indicate the purchase was made. However, no signed agreement was produced and Six L's denied the purported sale by telegrams on March 26 and March 31, 1980. Further testimony surrounding the two disputes was given by both parties regarding their face to face end telephone conversations. Their recollections of these conversations were self-serving and conflicting, and are thus assigned no evidentiary weight.
The Issue The issues in this case are whether Respondent committed the acts alleged and violations charged in the Administrative Complaints, as amended1; and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, is the state agency charged with regulating the practice of community association management pursuant to chapters 455 and 468, Florida Statutes. Respondent, Sherry Maycumber Raposo, is licensed in Florida as a community association manager (CAM), having been issued license number CAM 39662. At all times material to this proceeding, Respondent was the CAM for Turnberry Reserve Homeowner’s Association, Inc. (Turnberry Reserve). Respondent provided CAM services to Turnberry Reserve through Management 35 Firm, Inc., a company she owned. Records Requests Petitioner charges Respondent with the failure to provide certain association records requested by Turnberry members Luz Franco, Maria Napolitano, and Oshmy Barbosa. Ms. Franco and Ms. Napolitano submitted records requests to Respondent on identical forms requesting the following records: Financial Reports, reviews and audits for the past three (3) years. Itemized and detailed records of all receipts and expenditures. 2018 & 2019 minutes of all meetings of the board of directors & members. Bids obtained over the past 12 months for any work to be performed. Management 35 association management agreement. Security service contract. Current copy of all contracts to which the association is a party to. Ms. Franco’s records request is dated May 10, 2019, and Ms. Napolitano’s records request is dated May 24, 2019. Respondent testified, credibly, that all of the records requested were available for inspection on the Turnberry Reserve website, and that individuals were directed to the website to obtain these documents when any such request was received. Respondent’s testimony was corroborated by Sandra Diaz and Cliffie Kennedy, former board members of Turnberry Reserve. Ms. Diaz was a Turnberry Reserve board member from 2016 through 2018, and Mr. Kennedy was a Turnberry Reserve board member from 2019 through 2020. Ms. Diaz and Mr. Kennedy testified that the official records of Turnberry Reserve, including the latest financial reports and a copy of the contract with Management 35 Firm, Inc., were maintained on the Turnberry Reserve website as a matter of course, and were available for member inspection through the website. Ms. Franco and Ms. Napolitano testified that their access to the Turnberry Reserve website was suspended for non-payment of fines levied against them by the Turnberry Reserve board, leaving them unable to access the records they requested. Respondent testified that the Turnberry Reserve board suspended member access to their individual financial ledgers when fines were delinquent, but did not suspend access to official association documents maintained on the website. Respondent’s testimony was corroborated by Ms. Diaz and Mr. Kennedy, and is accepted where it conflicts with the testimony of Ms. Franco and Ms. Napolitano. The records requested by Ms. Franco, Ms. Napolitano, and Mr. Barbosa were available to them on the Turnberry website. As such, Respondent did not delay or deny access to association records. Attempt to Videotape a CEC Meeting Ms. Napolitano requested a meeting before the Turnberry Reserve Covenant Enforcement Committee (CEC) to appeal a fine that had been levied by the Turnberry Reserve board. Ms. Napolitano’s meeting before the CEC was held on August 31, 2019. The participants at the meeting were the three Turnberry Reserve homeowners who were appointed to serve on the CEC, Respondent, and Ms. Napolitano. No other Turnberry Reserve members were allowed to attend. The CEC members did not serve on the Turnberry Reserve board, no Turnberry Reserve board members attended the CEC meeting. Ms. Napolitano attempted to videotape the CEC meeting on her cell phone and was told by Respondent that she was not allowed to do so. Ahmed Elwan, a member of the CEC, testified that the CEC asked that the meeting not be videotaped because the appeals by individual members who had been fined were private meetings and the CEC did not want the meetings posted on social media. Mr. Elwan testified that the CEC voted to reschedule the meeting because Ms. Napolitano became irate and started yelling when she was told she could not videotape the meeting. Mr. Elwan’s testimony was credible and is accepted. Article III, section 9 of the Turnberry Reserve bylaws states, in pertinent part, that “[a]ny Lot Owner may tape record or videotape meetings of the Board of Directors and meetings of the Members.” Petitioner contends that Ms. Napolitano had a right to videotape her meeting before the CEC because it was a special meeting of the association members and therefore constitutes a meeting of the members. The Turnberry Reserve bylaws authorize the board to appoint a committee, like the CEC, to carry out association business. The CEC meeting was not a meeting open to all members; it was a private meeting between Ms. Napolitano and the three unit owners appointed by the board to serve on the CEC. The CEC meeting was not a meeting of the Turnberry Reserve board, because none of the CEC members served on the board. Thus, the CEC meeting was not a meeting of the board or a meeting of the members, and Ms. Napolitano had no right to videotape the CEC meeting under the Turnberry Reserve bylaws. Petitioner also charges Respondent with making a “deceptive, untrue, or fraudulent representation” because she told Ms. Napolitano that she could not videotape the CEC meeting. As found above, the Turnberry Reserve bylaws did not confer any right to videotape a CEC meeting, and this charge was therefore unproven for this reason alone. Candidate Forms for 2018 Annual Meeting Petitioner contends that Respondent failed to send out candidate forms soliciting candidates for the 2019 Turnberry Reserve board, resulting in the cancellation of the 2018 annual meeting which was to be held to elect the 2019 Turnberry Reserve board. Petitioner alleges this failure constitutes the failure to serve as a liaison between the Turnberry Reserve board and unit owners and tampering with the Turnberry Reserve 2018 annual election. Respondent testified that candidate forms soliciting candidates for the 2019 board were mailed to all 373 Turnberry Reserve unit owners in advance of the 2018 annual meeting. Ms. Diaz, Mr. Elwan, and Mr. Kennedy corroborated Respondent’s testimony, stating that they all received candidate forms in advance of the 2018 annual meeting. There was no evidence to the contrary. Ms. Napolitano testified that she does not know whether anyone returned candidate forms to Respondent in advance of the 2018 annual election. Ms. Franco testified that she had received candidate forms in years past, but could not recall whether she received a candidate form in advance of the 2018 annual election. Mr. Barbosa was not asked about the candidate form. The testimony of Respondent, Ms. Diaz, Mr. Elwan, and Mr. Kennedy was credible and is accepted. Respondent mailed candidate forms to the Turnberry Reserve unit owners in advance of the 2018 annual election. Respondent did not fail to serve as a liaison between the Turnberry Reserve board and unit owners and did not tamper with the 2018 annual election.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaints at issue in this consolidated proceeding. DONE AND ENTERED this 13th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Sherry Maycumber Raposo 4067 Longworth Loop Kissimmee, Florida 34744 James C. Richardson, Esquire Department Business and Professional Regulation 2601 Blairstone Road Tallahassee, Florida 32399-6563 David Axelman, General Counsel Office of the General Counsel Department Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 S BRIAN A. NEWMAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2021. Eddy Laguerre, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Krista Woodard, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 Julie I. Brown, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202
