Findings Of Fact Petitioner, Edward W. Hayden (herein Petitioner), was employed by Respondent, West Coast Regional Water Supply Authority (herein Respondent or the Authority), from April 19, 1992 until his discharge on May 5, 1993. During the entire period of his employment, Petitioner held the position of Purchasing and Property Records Manager. Respondent is a water wholesaler for the Pinellas, Pasco and Hillsborough tri-county area. Respondent is managed by a general manager, Harold Aiken, who reports to a board of directors which is comprised of elected officials from five member governments. The five member governments are Hillsborough, Pinellas and Pasco Counties, and the Cities of St. Petersburg and Tampa. Four directors report to general manager Aiken. These directors manage different parts of the Authority subject to the direction of manager Aiken. The general manager implements the policies and directives of the board of directors, administers personnel rules and oversees the day-to-day functions of Respondent. The general manager's authority specifically includes the ability to discharge employees. Petitioner, as purchasing and property records manager, was the person charged with overseeing Respondent's property and purchasing functions. Petitioner was responsible for developing and following procedures for purchasing, inventory control and maintenance of property records. In a nutshell, Petitioner was charged with protecting and safeguarding Respondent's assets. Petitioner's specific duties included developing, administering and managing the disposal of surplus property on behalf of the Authority. Petitioner reported to Koni Cassini, Respondent's director of finance, and general manager Aiken. Petitioner was hired because Respondent had experienced some difficulty maintaining inventory control and the management of its assets. In this regard, Petitioner has extensive experience in accounting and logistics management, having earned a bachelor's degree in business management and a master's degree in business administration. Additionally, he has extensive training in inventory control and management techniques. He served in the U.S. Air Force in excess of twenty years as an inventory management specialist and was assigned a number of critically responsible supervisory/leadership positions. Petitioner, while in the Air Force, managed operations as large as 72 assigned personnel and $42 million of inventory within a strict budget of taxpayer dollars. The purchasing, inventory control and property functions of the Authority are carried out through the finance department. The Authority works under a purchase order system wherein each item that is purchased must have a corresponding purchase order. Purchase orders must be approved by various officials within the Authority depending upon the purchase price. As example, if the price of the item to be purchased is anywhere from zero to $500, a manager's signature is required on the purchase order. For items priced between $500 to $1000, a department director's signature is required on the purchase order. For items priced between $1000 to $15,000, the general manager must approve and sign the purchase order. For items priced in excess of $15,000, the board of directors' approval is required to effectuate the purchase. The signatures are required as part of the Authority's checks and balance system which is used to preserve and protect public funds expended by the Authority. Respondent has specific inventory control guidelines which govern the disposal of surplus property. The guidelines encompass six different procedures to dispose of surplus property. The first, and preferred method of surplus disposal, is by donation to one of the five member governments. The Authority uses a second method of disposal of surplus property which is classified as "junk" if it has no value, is beyond repair, and cannot be donated to a member government. A third method of disposal is to sell the property by sealed bid. The sealed bid method is used when either the quality or quantity of the items for sale is insufficient to justify public auction, i.e., the items are without value to the Authority. The most common way of determining whether the property has any value is to conduct a public auction or to "spot bid" the property. The sealed bid method can be utilized by outside vendors and/or employees. The Authority uses the employee sealed bid surplus sale for items that have no value. It is generally understood throughout the Authority that items that are placed in an employee's sealed bid surplus sale are useless to the Authority or have no commercial value whatsoever. Items placed in that sale are items which are basically to be "thrown away". A fourth method of disposal is "spot bidding". This entails contacting buyers, on an informal basis, to determine whether they are interested in bidding on the surplus property. A fifth and another preferred method of disposal is to sell the property via public auction. The Authority has conducted public auctions in the past either by itself or through the use of a private entity, the Tampa machinery auction, which conducts public auctions on behalf of private and governmental bodies. Tampa machinery auction handles all administrative duties, such as advertising, marketing and operations of the auction including collection of proceeds from the sale. The final method of disposal of surplus property is by "trade-in". This method involves obtaining a trade-in value for surplus property when the Authority is purchasing new property. Upon completion of Petitioner's probationary term of employment, a six-month period, his work performance declined considerably. Specifically, Petitioner was assigned the task of drafting a purchasing manual to be used by the board of directors for the board's approval. Petitioner failed to complete the purchasing manual in a timely manner and the director of finance, Koni Cassini, undertook the drafting and completion of the manual. Cassini completed the draft of the manual and it was approved by the board. During February, 1993, Petitioner decided to conduct the employee surplus property sale which is at issue herein. Petitioner's subordinate, James Krug, who held the position of property specialist, compiled a list of surplus property to be sold at Petitioner's direction. Petitioner and Krug circulated the surplus property list to the general manager and the department directors and also notified them of their decision to conduct an employee surplus property sale to dispose of items on the submitted list. Krug prepared the surplus property list which was reviewed by Petitioner. The surplus property sale was the first employee surplus property sale conducted by Petitioner during his tenure as purchasing and property records manager. Petitioner initially considered having a public auction prior to conducting the surplus property sale, but decided against it based on his "busy schedule". When manager Aiken received Krug's memorandum attaching the list of items to be sold in the surplus sale, he noticed that the list included a telecopier machine. He directed his secretary to contact Petitioner to determine the condition of the telecopier machine. Based on his inquiry, manager Aiken learned that the telecopier machine was functional and, therefore, instructed Petitioner to remove it from the list. He subsequently contacted Cassini to advise that the list contained at least one item of value. He directed Cassini to require that Petitioner provide a detailed description of the items on the list including whether the items were functional, non- repairable, or had any value to the Authority. Subsequently, on March 19, 1993, Cassini contacted Petitioner by memorandum and directed that he provide a description of all items on the list as Aiken requested. The surplus sale was to be held on March 24, 1993. On March 22, 1993, Petitioner sent a memorandum to Cassini stating that he would not provide the requested description of the items for the current sale, but would do so at the next time that the Authority had a surplus sale. At that time, Petitioner assured Cassini that there were no items of value on the current list. Cassini did not follow up on her March 19, 1993, memorandum based on Petitioner's assurance that there were no items of value remaining on the surplus list. Petitioner conducted the surplus property sale, which sale included several items of value including three trench safety units, a three-ton air conditioning unit and a refrigerator. Trench safety units are suspension systems that are used to lower workers into the ground to inspect and repair open pipes. The trench safety units cost Respondent $5,000 each when purchased new during 1990. The surplus property list described the trench safety units as "mini- lift systems". Petitioner described the trench safety units in this manner, even though employees of the Authority referred to the units as "trench safety units" and not "mini-lift systems". Petitioner advised several Authority personnel, including manager Aiken and Cassini, that all of the items on the surplus property list were in rough to poor condition and had no value. As example, he advised the Authority's personnel manager, Holly Manning, that the items on the surplus list were "junk". Respondent purchased the trench safety units for a pipeline investigation in 1990 at the direction of Allison Adams, the Authority's special projects coordinator. The Authority only utilized the safety units during that investigation; however, it could and intended to utilize the safety units in the future for the maintenance of underground pipes or to conduct other subterranean investigations. Petitioner did not contact either the member directors or the general manager for authorization to dispose of the safety units. Likewise, Petitioner did not contact the member governments to determine whether they could use the safety units, nor did he attempt to obtain any sealed bids on the safety units other than through the employee surplus sale. Petitioner did not "spot bid" the safety units prior to including them in the employee surplus sale. Petitioner also listed a three-ton air conditioning unit in the employee surplus sale, despite the fact that it was in good operating condition and had a value of approximately $1,500. Although it was his duty to know all items of value on the surplus sale, Petitioner did not have any idea of the value of the air conditioning unit. Likewise, Petitioner did not spot bid the air conditioning unit prior to including it in the surplus property sale. Two Authority employees purchased the three trench safety units through the sale. Jim Krug, the property specialist who included the units in the surplus property list, purchased one of the units for $223. The other two safety units were sold to Rick Minjarez, a water plant operator, for $175 each. The safety units were in good condition when they were sold. Within ten days of purchasing the safety units from the Authority, Krug and Minjarez sold the items to an outside vendor, who had engaged in business with the Authority in the past, for $1,000 per unit. Cassini conducted an investigation when she learned that the surplus sale had been conducted and that items of value had been sold. Based upon her initial investigation, Cassini recommended that Petitioner and Krug be put on administrative leave without pay pending the outcome of her investigation. Petitioner and Krug were then given an opportunity to explain why the safety units and other valuable property items were included in the sale contrary to his assurance. After Hayden and Krug received pre-termination hearings, Aiken terminated Hayden and Krug on May 5, 1993, based upon Cassini's recommendation. Aiken issued Minjarez a written reprimand for his part because of his failure to bring to the Authority's attention the fact that the items which he purchased were "items of value". Minjarez was not discharged because of Respondent's determination that he was not specifically responsible for protecting the Authority's assets and did not prepare the list of items which were sold. (Minjarez and Krug's disciplinary action is not at issue herein). Petitioner was recommended for discharge by Cassini based upon the fact that he was hired to oversee the purchasing and property functions of the Authority and he failed to fulfill his duties in that regard. Cassini also determined that, by Petitioner's actions, he was insubordinate and misused the Authority's assets to its detriment. Finally, Cassini recommended that Petitioner be discharged because of his insubordination and his failure to comply with her directive that he protect the property interests of the Authority.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order dismissing Petitioner's petition for relief and terminate him from employment. DONE and ENTERED this 21st day of January, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 21st day of January, 1994. COPIES FURNISHED: Harold Aiken, General Manager West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621 Thomas M. Gonzalez, Esquire Gregory A. Hearing, Esquire THOMPSON, SIZEMORE Post Office Box 639 Tampa, Florida 33601 Edward W. Hayden 505 Hedgerow Brandon, Florida 33510 Edward P. de la Parte, Jr., Esquire DE LA PARTE & GILBERT One Tampa City Center, Suite 2300 Post Office Box 172537 Tampa, Florida 33672-0537
Findings Of Fact From September 22, 1975, to December 24, 1975, Kopf was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing Fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. In November of 1975, Kopf telephoned Mr. Harold E. Triplett, a resident of Pomeroy, Ohio. Mr. Triplett was the owner of two lots in the Cape Coral residential development. Kopf represented to Mr. Triplett that he, Kopf, had a buyer for the Triplett property which was a foreign company seeking tax advantages. Kopf guaranteed that the property would be sold by November 29, 1975. November 29 came and went without a closing on the Florida property. This, notwithstanding the fact that Kopf had advised Triplett that the property was already sold and that the $347.20 check that Triplett had sent to Kopf was for closing costs. Triplett tried unsuccessfully to contact Kopf but was advised that the telephone had been disconnected. Notwithstanding the fact that FAR had never resold any of its listings Kopf represented to Triplett that he had successfully concluded similar transactions. As to the remaining allegations numbered 1, 3 and 4 above, there was a total absence of evidence and, hence, a failure of proof as to misrepresentations of those facts. FREC introduced no evidence to establish that the prices for which the properties were listed were reasonable listing prices and further introduced no evidence to show that Kopf represented that the property would be advertised nationwide and in foreign countries, or that the company had foreign buyers wanting to purchase the property listed with FAR, with the exception of Kopf's property, or that such representations, if made, were false. However, the evidence establishes that Kopf represented that the property would be sold within 30 days of the listing, which representation was false, and that Kopf knew that the representation was false.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Richard B. Watson holds a license issued by petitioner and has since 1976. He holds license No. 0163723, and has, at all pertinent times, worked as a broker-salesman for Liz Caldwell Realty, Inc., 126- 128 Eglin Parkway Southeast in Fort Walton Beach, Florida. Petitioner's Exhibit No. 1. On June 13, 1983, Lloyd H. Waldorff executed an employment contract under which Liz Caldwell Realty, Inc. was to have the exclusive right to sell the 25 units Waldorff Properties of Ft. Walton proposed to build as "phase two" of its La Mar West Townhouse Project in Mary Ester, Florida. Petitioner's Exhibit No. 6. Nobody signed the written agreement on behalf of the broker, but Mr. Waldorff's testimony that Ms. Caldwell or somebody in the agency "accepted" it was uncontradicted, and fully consonant with the other evidence adduced. Mr. Waldorff or his organization needed agreements from prospective buyers to purchase units when built, in order to induce a lender to lend money for construction of phase two. One Saturday, probably in mid-July of 1983, Ms. Caldwell presented him with 18 such agreements. It seemed peculiar to Mr. Waldorff, getting 18 purchase agreements at once; and he was also struck by the number of Californians and other non- Floridians among the putative purchasers. But he had nevertheless signed the agreements himself before Ms. Caldwell gave them to Mr. Watson for attestation; and he later furnished all of the purchase agreements to Security Federal Savings and Loan Association of Panama City in support of an eventually successful application for a $1,100,000.00 construction loan. (T.90) Mr. Waldorff signed the purchase agreements in a back room within the Liz Caldwell Realty, Inc. offices. At hearing he remembered that a woman was present. He did not recall respondent's being there. Seventeen of the 18 agreements furnished the lender were purportedly signed by persons to whose signatures, except in one instance, respondent Watson attested. Petitioner's Exhibit No. 4. On 16 of the 17 purchase agreements on which he signed as a witness to putative purchasers' signatures, respondent also signed as a witness to Mr. Waldorff's signature in a blank provided under the heading "signed in the presence of:". Petitioner's Exhibit No. 4. Respondent was aware at the time that Mr. Waldorff, whom he considers a friend, needed such agreements in order to obtain financing. As time for closing on the purchase agreements approached, Mr. Waldorff testified, he became suspicious, and asked Ms. Caldwell to see her escrow account statements, but she put him off. Eventually he asked her if the purchase agreements were "bogus," and she answered by nodding affirmatively. It was at this point, Mr. Waldorff said, that he notified the lending institution of their falsity, and asked for an extension of time in which to repay the construction loan. But the weight of the evidence established that the purchase agreements were shams from their inception and that Mr. Waldorff knew it before he obtained the loans. On September 9, 1985, Paul R. Bratton, III, an investigator for DPR, asked Mr. Watson about the purchase, agreements on which he had witnessed purported parties' signatures. In this interview, Mr. Watson said, with respect to some of the contracts which he had signed as a witness, "that he did not see the buyers or the sellers sign the contract." (T.63) In a deposition he gave in the course of related civil litigation, respondent Watson testified that it was "(p)retty much," Petitioner's Exhibit No. 5, p.10, "standard procedure" for him to witness signatures which he had not seen being affixed. In response to the question, "Does that mean also you wouldn't know whether these people exist in real life or not?", Mr. Watson answered, "It could be. ..." Id. as 15. Mr. Waldorff told Mr. Watson he was going to use the 18 purchase agreements, all but one of which respondent had signed as a witness, to secure a construction loan even though they were "bogus." Petitioner's Exhibit No. 5. This conversation antedated the loan closing. Id.
Findings Of Fact From December 12, 1975, to June, 1976, Steiner was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners where names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. Steiner, although a salesman and not a broker, was the person responsible for running the operations of the FAR. A Mr. Lawrence Mann was employed as a figure-head broker for FAR and named as its president. Mann's only duties were to insure that all salesmen employed were properly licensed with the Real Estate Commission. Steiner hired and fired salesmen, sometimes took over difficult listing cases, provided the preplanned sales pitch for the salesmen and generally supervised the over-all operation. Steiner had a monitor in his office so that he could listen in on telephone calls being made to prospective clients. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. However, Steiner would set the listing price for the property after receiving a description of the property from the salesman. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Steiner. FREC introduced no evidence to show that Steiner represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Steiner either made the representations or knew them to be false. There was no evidence introduced to show that Steiner knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Steiner was dishonest or untruthful.
Findings Of Fact On February 26, 1982, the Respondent Division of Corporations, issued Charter No. F68782 permitting the use of the corporate name "Gift Cheques, Inc." to the Petitioner in accordance with Chapter 607, Florida Statutes. On September 20, 1982, the Respondent Division of Corporations, issued Charter No. 927750 permitting the use of the service mark "Gift Check" to the Respondent. The mark was first used in Florida by the Respondent on February 10, 1983. On June 28, 1983, the Respondent Department of State informed the Petitioner that a conflict of names did not exist since "Gift Check" is a registered service mark used in connection with direct mail advertising. Petitioner Gift Cheques, Inc. is located in the South Florida area and is involved in advertising and fund raising. Respondent Gift Check is involved in the marketing of time share condominiums in Florida through advertising.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Secretary of State finding that the Respondent Gift Check was properly registered as a service mark under Chapter 495, Florida Statutes. DONE and ORDERED this 13th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 13th day of March, 1984.
The Issue The issue is whether Celebration Acres, Inc., or its surety, Florida Farm Bureau General Insurance Company, is liable for funds due Mike's Green Thumb, Inc., for the sale of agricultural products.
Findings Of Fact Petitioner is a Florida corporation with its principal place of business in Delray Beach, Florida, where it engages in the production of nursery stock. Mr. Michael Raimondi testified at the hearing on Petitioner's behalf. Respondent is a Florida corporation located in Coral Springs, Florida. At the time of the transactions which are the subject of this proceeding, Respondent was licensed as a dealer in agricultural products supported by Surety Bond Number BD 0692212 (the Bond) in the amount of $16,000. Respondent engages in the business of landscaping. Mr. David Urs testified at the hearing on Respondent's behalf. Co-Respondent is a corporation, licensed to do business in the state of Florida as an insurer. As surety, it provided the Bond for Respondent. The conditions and provisions of the Bond are to assure proper accounting and payment to producers for agricultural products purchased by Respondent. From October of 1993 through February of 1994, Petitioner sold nursery plants of its own production to Respondent at a sale price in the total amount of $14,562.35. The parties have done business together for over six (6) years. During that time, they have not established a course of performance or course of dealing regarding the terms of payment. In fact they have consistently argued over this point through out their business relationship. Respondent did not always send Petitioner a purchase order. When Petitioner received purchase orders, they consistently stated at the top that the terms of payment would be "net 30." However, on some occasions, the Respondent also stamped the purchase orders with the following additional payment terms: Terms of payment are per contract between general contractor and Celebration Acres, Inc.; and (b) Material sold by this purchase order once installed by Celebration Acres, Inc. belongs to the owner of the property where installed. Payment is due to supplier when payment is received by Celebration Acres, Inc. Suppliers are encouraged to protect themselves by sending a notice to owner. Regardless of whether Petitioner received a purchase order, it always sent Respondent an invoice stating that payment was due thirty (30) days after the date of invoice. The parties agree that subject invoices reflect the correct sale price for plants delivered and accepted. On or before October 11, 1993, Respondent bought 1343 Liriope and 132 Indian Hawthorne from Petitioner for a total sale price of $4,419.25. The express terms of payment for this sale was net in 30 days as set forth in Purchase Order No. 157 and Invoice No. 6504. Mr. Urs, Respondent's witness, testified that Purchase Order No. 157 is incomplete and that Respondent sent Petitioner a subsequent purchase order containing the additional payment terms referenced above in paragraph six (6). Mr. Urs' testimony is contrary to the more compelling testimony of Mr. Raimondi, Petitioner's witness. Respondent admits that it owes and has not paid Petitioner $4,419.25 for Invoice No. 6504. Payment for this invoice is past due. On or before December 16, 1993, Respondent sent Petitioner Purchase Order No. 193 for 200 Variegated Liriope. This purchase order contains the additional payment terms referenced above in paragraph six (6), i.e., payment was due pursuant to the terms of the contract between Respondent and the City of Oakland Park. Pursuant to this order, Petitioner delivered and Respondent accepted 230 plants as described in Respondent's Invoice Nos. 7528 and 7713 for a total sale price of $379.50. Respondent admits that it owes and has not paid Petitioner $379.50 for Invoice Nos. 7528 and 7713. Record evidence indicates that Respondent has completed its work for the City of Oakland Park. Additionally, there is no pending dispute over that contract; Respondent expected payment by May 26, 1994. Petitioner has met its burden of proof regarding Invoice Nos. 7528 and 7713. Respondent presented no evidence to show that payment is not due. Accordingly, payment for Invoice Nos. 7528 and 7713 is past due. On or about November 29, 1993, Respondent sent Petitioner Purchase Order No. 175 requesting shipment of various kinds of nursery stock. Respondent stamped this invoice with the terms referenced above in paragraph six (6). After receiving the order, Petitioner sent Respondent Invoice Nos. 7236 and 7408 reflecting a total sale price in the amount of $5,490.50. At the formal hearing, Respondent produced a copy of a Final Release of Lien signed by Petitioner's representative indicating that Petitioner received payment for Invoice Nos. 7236 and 7408. The release appears to bear an imprint of Petitioner's corporate seal. Petitioner asserts that Respondent never paid for Invoice Nos. 7236 and 7408. Mr. Raimondi, Petitioner's representative, occasionally signed a release before receiving funds so that a general contractor would pay Respondent, who promised, in turn, to pay Petitioner. Respondent faxed the subject release to Mr. Raimondi who signed it and faxed it back to Respondent. Someone at Respondent's office notarized Mr. Raimondi's signature. Respondent presented no evidence to show whether Petitioner ever received payment for Invoice Nos. 7236 and 7408. Respondent admits that it would occasionally request the execution of a release before paying Petitioner for plant material. Mr. Urs, Respondent's representative, testified that Respondent may have paid Petitioner in one of two ways: (a) by Respondent's check (company or certified); or (b) by the general contractor's check payable jointly to Respondent and Petitioner. The testimony of Mr. Urs, Respondent's representative, concerning the parties' execution of releases in general, and the subject release in particular, is contrary to the more compelling testimony of Mr. Raimondi, Petitioner's representative. Petitioner has met its burden of proving that payment for Invoice Nos. 7236 and 7408 is past due. On or about January 27, 1994, Respondent sent Petitioner Purchase Order Nos. 232 and 234 for assorted nursery plants. Both purchase orders contain the additional payment terms referred to in paragraph six (6) above. In response to these orders, Petitioner sent Respondent Invoice Nos. 8026 and 8027 for $660.75 and $612.35 respectively. Respondent admitted at the formal hearing that it owed Petitioner for Invoice Nos. 8026 and 8027 and that payment was past due. On or about February 14, 1994, Petitioner sent Respondent Invoice No. 8244 for 1500 Fern Sword listing the sale price in the amount of $3,000. Neither party produced a corresponding purchase order for this invoice and Petitioner did not recall receiving one. Mr. Urs, Respondent's representative, testified that Respondent owed Petitioner for Invoice No. 8244, but that payment is not due because Respondent has not received payment from the general contractor or the owner, Palm Beach County. Petitioner admits it has been in contact with the general contractor's bond company in an attempt to collect the debt. However, there is no persuasive record evidence that Petitioner ever agreed to defer payment until the general contractor or owner paid Respondent. Petitioner has met its obligation of proving that payment for Invoice No. 8244 is past due.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, I recommend that the Department of Agriculture and Consumer Services enter a Final Order directing Respondent and/or its surety and Co-Respondent to pay Petitioner $14,562.35. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22 day of December 1994. SUZANNE F. HOOD, Hearing Officer 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 21st day of October, 1994. COPIES FURNIHSED: Florida Farm Bureau General Insurance Company (Legal Dept.) Post Office Box 147030 Gainesville, Florida 32614 Michael Raimondi, President Mike's Green Thumb, Inc. Post Office Box 6279 Delray Beach, Florida 33445 David S. Urs, Vice President Celebration Acres, Inc. 3300 University Dr. #514 Coral Springs, Florida 33065 Richard Tritschler, Esquire Dept. of Agriculture & Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0810 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL - 10 Tallahassee, Florida 32399-0810
Findings Of Fact The parties stipulated, at the final hearing, that petitioner's national headquarters are in Florida. Before the hearing began, the parties had entered into a written stipulation, setting forth facts pertinent to the dispute. The parties also entered into a written supplemental stipulation, before the hearing began. These stipulations are hereby incorporated into the recommended order, and the facts to which the parties have stipulated are deemed true. Attached as appendices to the recommended order are the parties' written stipulations, sans attachments.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the proposed deficiency be withdrawn. DONE and ENTERED this 21st day of October, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Samuel C. Ullmann, Esquire and Mr. Richard J. Razook, Esquire 1301 Alfred I. DuPont Building Miami, Florida 33131 Mr. E. Wilson Crump, II, Esquire Assistant Attorney General Department of Legal Affairs Post Office Box 3906 Tallahassee, Florida 32303
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated February 5, 2007, and, if so, the penalty that should be imposed.
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: The Board is created within the Department of Business and Professional Regulation and is the state agency responsible for regulating and imposing discipline on auctioneers and auction businesses. See §§ 468.384 and 468.189(2), Fla. Stat. At the times material to this matter, the Auction Depot was a licensed auction business in the State of Florida. The auction business license of Auction Depot expired effective November 30, 2007, and has been considered delinquent since December 1, 2007. Anton Rechner was the president of Auction Depot at the times material to this proceeding. Kathy Murphy is the owner of Endless Treasures Estate Sales and Service ("Endless Treasures"). On December 29, 2005, Mrs. Murphy consigned a number of items with Auction Depot for sale at auction. Auction Depot conducted an auction on January 5, 2005, and sold a number of the items Mrs. Murphy had put on consignment on December 29, 2005. On January 6, 2006, Mrs. Murphy picked up from Auction Depot a list of items sold at the auction on January 5, 2005. The list included the items Mrs. Murphy had put on consignment, with the lot numbers for each item, the sales price for each item sold, the Auction Depot's commission for each item sold, and the total due to Mrs. Murphy for each item sold. Among the items shown sold on the list Mrs. Murphy picked up on January 6, 2006, were two mahogany hutches; the sales price was shown as $600.00 for each hutch, and $450.00 was owed to Mrs. Murphy for each hutch. The list Mrs. Murphy picked up on January 6, 2006, also included several items that were not sold at the January 5, 2006, auction, and no sales price or the notation "$0.00" was shown on the list. The total amount owed to Mrs. Murphy stated on the list of items Mrs. Murphy picked up on January 6, 2006, was $4,976.25, on total sales of $6,635.00. Mrs. Murphy did not receive payment of the $4,976.25 from Auction Depot shown on the list she picked up on January 6, 2006. In February 2006, she received a check for $4,113.75, together with a revised list showing that the mahogany hutches had not been sold. Mrs. Murphy was told that the person who purchased the mahogany hutches had not paid for them. On January 10, 2006, Auction Depot picked up additional items from Endless Treasures on consignment. The items were auctioned on January 12, 19, and 26, 2006. A list of the items sold at the January 12, 2006, auction shows that two mahogany "bookcases" were sold for $450.00 each. Mrs. Murphy was at the auction and identified the "bookcases" as the mahogany hutches that she sent to Auction Depot on December 29, 2005. These two items were sold in a telephone auction, but there was no speakerphone, so that the only person who could hear the telephone bids was Mr. Rechner. Mrs. Murphy later saw the hutches for sale in an antique gallery owned by Mr. Rechner. According to the list provided by Auction Depot of the items sold at the January 12, 2006, the gross sales totaled $2,292.50, minus Auction Depot's commission of $573.13, for a total owing to Mrs. Murphy of $1,719.38. Mr. Rechner wrote a check to Endless Treasures for $1,719.38 and gave it to Mrs. Murphy; the check was dated January 12, 2006, but it was not signed, and Mrs. Murphy could not cash it. When she returned to Auction Depot and asked Mr. Rechner to sign the check, he refused with a rude remark and told her that he would see her in court. Mrs. Murphy finally received a check from Auction Depot for the $1,719.38 owed for the items sold on January 12, 2006; the check was dated January 1, 2006, and signed by Mr. Rechner. It was sent to Mrs. Murphy through the Board, after she filed a complaint against Auction Depot. The total amount owning Mrs. Murphy for the items sold on Mrs. Murphy's behalf on January 19 and 26, 2006, was $53.13 and $105.00, respectively. Mrs. Murphy received payment of these amounts in February 2006. A number of the items Mrs. Murphy placed with Auction Depot were not sold at the auctions held on January 5, 12, 19, or 26, 2006. Although Mrs. Murphy and her husband asked several times that Auction Depot return the unsold items, they were told that they had been broken or could not be found. Mrs. Murphy never received the unsold items from Auction Depot. The evidence presented by the Board is sufficient to establish with a high degree of certainty that Mrs. Murphy did not receive payment for the items sold on January 5, 2006, within a reasonable amount of time. The evidence presented is also sufficient to establish with a high degree of certainty that Auction Depot committed acts of bad faith and dishonesty in connection with the sales of Mrs. Murphy's property by not returning unsold items to Mrs. Murphy and by manipulating the sale of the two mahogany hutches for his own benefit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Auctioneers enter a final order finding that Auction Depot violated Section 468.389(1)(e) and (c), Florida Statutes, in connection with the transactions involving Endless Treasures Sales and Service and imposing an administrative fine of $2,000.00. DONE AND ENTERED this 28th day of April, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 28th day of April, 2009.
