The Issue The issue for determination in this case is whether Rules 28-25.004 and 28-25.006(1), Florida Administrative Code, are vague and arbitrary as defined in Sections 120.52(8)(d) and (e), Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, SEWELL CORKRAN, is a resident of Collier County, Florida, and past President of the Collier County Audubon Society. Petitioner’s standing to bring this action was not contested. Respondent, ADMINISTRATION COMMISSION, is the agency of the State of Florida vested with the statutory authority for the promulgation of Rules 28-25.002, et seq., Florida Administrative Code, pertaining to conservation and development within the Big Cypress Area. The DEPARTMENT OF COMMUNITY AFFAIRS (hereinafter AGENCY) is duly authorized to represent the ADMINISTRATION COMMISSION in these proceedings. Rules 28-25.004 and 28-25-006(1), Florida Administrative Code, set forth below, were adopted on November 28, 1973. Stipulated Facts There have been no examples of development in the Big Cypress Area of Critical State Concern such as that described by Petitioner, wherein lands that have been totally altered, have been one-hundred percent developed subsequent to agriculture. Development of ten (10) percent of a site in the Big Cypress Area of Critical State Concern is a reasonably acceptable amount of development. Agency Administration of Rule Chapter 28-25 As indicated above, Rule Chapter 28-25, Florida Administrative Code, was initially promulgated in 1973 pursuant to Section 380.05, Florida Statutes, for the purpose of protection and conservation of the Big Cypress Area of Critical State Concern (ACSC). The challenged agricultural exemption applicable to the Big Cypress ACSC is set forth in Rule 28-25.004, Florida Administrative Code, which provides: Agricultural Exemption. The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products, raising livestock or for other purposes directly related to all such uses are exempt from these regulations. However, whenever any person carries out any activity defined in Section 380, Florida Statutes, as development or applies for a development permit, as defined in Section 380, Florida Statutes, to develop exempted land, these regulations shall apply to such application and to such land. The challenged site alteration provisions of Rule 28- 25.006(1), Florida Administrative Code, limit such development to ten percent providing: Site Alteration. Site alteration shall be limited to 10% of the total site size, and installation of non permeable surfaces shall not exceed 50% of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The AGENCY construes Rules 28-25.004 and 28-25.0061, Florida Administrative Code, as complementary. Pursuant to the agency’s construction and application of these rules, if a parcel of land is exempted for agricultural purposes, and is then altered for development purposes as defined in Section 380.04, Florida Statutes (1995), that development, pursuant to Rule 28- 25.006(1), Florida Administrative Code, would be limited to only ten percent of the total site size. Under the agency’s construction and application, the rules are not mutually exclusive, and regardless of an agricultural exemption, development will only be allowed on a maximum of ten percent of the total parcel. The agency makes no distinction made between whether the site is pristine or has been previously disturbed. The construction and application of the rules by the agency has been consistent. In implementing these rules development has been limited to only ten percent of a total site. There is no evidence of any instances in which a site that had been altered under the agricultural exemption was subsequently altered for development purposes to an amount greater than ten percent. There is no evidence that such a subsequent alteration from agriculture to development has ever been attempted. The agency reviews all development orders that are issued in the Big Cypress ACSC based upon established guidelines and standards. The evidence reflects that currently the AGENCY is in the process of appealing a development order issued by Collier County concerning Rule 28-25.006(1), Florida Administrative Code, which involves a request for development of a site previously disturbed by a spoil bank. In that case, the amount of land to be developed was proposed to be in excess of ten percent. The requested conversion was not from agricultural to development, as that term is defined in Section 380.04, Florida Statutes (1995). Because the spoil bank disturbed more than ten percent of the total site, the agency appealed the development order. The record indicates that this appeal is currently going through settlement negotiations wherein development will be limited to ten percent, regardless of the size of the disturbed area created by the spoil bank. The agency considers a number of factors when amending a rule. One of the factors is whether there has been much controversy associated with the rule, which would be one indication that the rule is so vague as to cause confusion in its understanding and inconsistency in its application. This has not been the case where these Big Cypress ACSC rules have been applied. County land development regulations may be stricter then rules promulgated or approved by the AGENCY, pursuant to Rule 28-25.013, Florida Administrative Code, which provides: In case of a conflict between Big Cypress Critical Area regulations and other regulations which are a proper exercise of authority of a governmental jurisdiction, the more restrictive of the provisions shall apply. Collier County’s Land Development Regulation 3.9.6.5.1(7) is more restrictive than Rule 28-25.004, Florida Administrative Code, which deals with the site alteration exemption for agricultural purposes. The following conditions, as applicable, shall be addressed as part of and attachments to the agriculture land clearing application: * * * (7) The property owner, or authorized agent, has filed an executed agreement with the development services director, stating that within two years from the date on which the agricultural clearing permit is approved by the development services director, the owner/agent will put the property into a bona fide agricultural use and pursue such activity in a manner conducive to the successful harvesting of its expected crops or products. The agency does not have statutory authorization to regulate agriculture, which is explicitly exempted from the definition of development in Chapter 380, Florida Statutes (1995), in the Big Cypress Area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Petition filed in this matter is hereby DISMISSED. DONE and ORDERED this 21st day of April, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1997. COPIES FURNISHED: Sewell Corkran 213 9th Avenue South Naples, Florida 33940-6847 Bob Bradley Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Liz Cloud, Chief Bureau of Administrative Code Department of State The Elliott Building Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue The issue in this case is whether the application of Christopher and Caroline Roetzer (Appellants) for two variances allowing fences of greater than permitted height on their property should be approved.
Findings Of Fact Appellants, Christopher and Caroline Roetzer, are the owners of property located at 3001 Sunset Point Road in Clearwater, Florida. On or about July 7, 1994, Appellants filed an application with the Appellee, City of Clearwater, for variances of: 3.5 feet to permit a fence height of 6 feet where 2.5 feet maximum height is permitted in a structural setback area from a street right- of-way (Sunset Point Road) where the property is addressed from; and, (2) 2 feet to permit a fence height of 6 feet where 4 feet maximum is permitted in a structural setback from a street right- of-way where the property is not addressed from at 3001 Sunset Point Road. The Appellants purchased the subject property in November of 1993. At the time of purchase, the property was in an incorporated part of Pinellas County and was zoned for commercial use. The Appellants purchased the property for the purpose of constructing a single-family residence. The county issued a permit for construction of the residence on December 8, 1993, and construction began shortly thereafter. The residence was completed in March of 1994. The Appellants' residence is addressed from Sunset Point Road. The back of Appellants' property adjoins Oak Forest Drive. Oak Forest Drive is located in Forest Wood Estates, a residential subdivision that was initially developed more than twenty years ago. Appellants' property was not, prior to their purchase, and is not now, a part of Forest Wood Estates. Appellants' residence is a large two-story, three-car garage structure. The Appellants have also constructed a fenced dog-pen immediately adjacent to their residence. The surrounding residences are generally smaller, single story structures. Unlike Appellants' residence, the other residences adjoining Oak Forest Drive front on, and are addressed from that street, and not Sunset Point Road. The back of the residential property located at 3006 Oak Forest Drive, which is immediately adjacent to the Appellants' property, has a wooden fence in excess of 2.5 feet located along Sunset Point Road. In February of 1994 Appellants applied for annexation by the City of Clearwater. The purpose of the application for annexation was to enable the Appellants to access the City sewage system. On March 17, 1994 the subject property was annexed by the City. The Appellants were not informed that the annexation had been effected at that time. On May 19, 1994, officials of Pinellas County, also unaware that the Appellants' property had been annexed by the City, issued a permit for the construction of a 6 foot fence in the back of the Appellants' property adjoining Oak Forest Drive. On June 7, 1994, the fence was erected. At the time the fence was constructed, Robert King, a resident of Forest Wood Estates, informed the fencing contractor that the fence violated the City code. On June 9, 1994, the City of Clearwater issued the Appellants a notice of violation of permitting requirements. Prior to the construction of the fence, children used the back of Appellants property as a shorter route to return home from school. On July 7, 1994, Appellants filed an application for variances to construct not only the 6 foot fence that had been erected in the back of the property, but also to construct a 6 foot fence in the front of the property along Sunset Point Road. The Appellants applied for the variances for reasons of security, privacy, and protection from liability. Additionally, the Appellants applied for the variances for the purpose of allowing their two golden retrievers access to roam the property safely. The city planning staff recommended approval of the Appellants' application for the two variances. The matter was heard by the Development Code Adjustment Board on July 28,1994, at which time the recommendation of the City planning staff to approve the application for variances was presented by Senior Planner John Richter. Appellants also appeared and expressed their concerns for the security and privacy of their residence and property. Several residents of Forest Woods Estates appeared at the hearing and stated that the fence in the back of Appellants' property was unsightly and would detract from property values. The residents also stated that although a proposed expansion of Sunset Point Road would allow traffic to move closer to the Appellants' residence that the Appellants' front lawn was the largest on the street. The Development Code Adjustment Board unanimously denied the application of the Appellants as to both variances . The Appellants filed a timely appeal of the denial of their application. The appeal was referred to the Division of Administrative Hearings on August 23, 1994. The appeal was heard on January 12, 1995. Since the construction of the 6 foot fence in the back of Appellants' property there have been no incidences of children using the Appellants' property as a route to return home from school. Appellants' dogs have also had access to the back yard without incident. Appellants continue to experience a high level of noise and litter from the traffic on Sunset Point Road in the front of their property. Craig Hill, a resident of Forest Woods, who lives at 1882 Oak Forest Drive which is immediately behind the Appellants' property testified that he recently purchased his home in this subdivision, that the Appellants' fence provided security for keeping his son away from Appellants' dogs, and that the fence did not detract from his purchase of this property. Robert and Caroline King, real estate brokers who have resided in Forest Woods subdivision for 22 years, testified that the fence is unsightly and would detract from the value of other homes in the neighborhood. For these proceedings, Mr. and Mrs. King were neither tendered, nor qualified, as experts in real estate appraisals. Other longtime residents, Irving Carlson and Camplin Straker, also testified that the fence and the double gate for the fence were unsightly. The residents also expressed concerns because the fence is located near the only entrance to Forest Woods and generally detracts from the aesthetic appearance of the entire subdivision. John Richter, a Senior Planner with the City of Clearwater with 17 years of planning experience with the City, testified that there is no presumption to the recommendations of the planning staff to the Board, and that one consideration of the City code is the visual aesthetics of the surrounding property.
The Issue The issues in this case are framed by the six-count Administrative Complaint, DPR Case No. 9180247, which the Petitioner, the Department of Professional Regulation, Division of Real Estate, filed against the Respondent, Gary W. Palmer. The first four counts allege the improper handling of an "escrow dispute" in violation of the following sections of the Florida Statutes (1991) and rules of the Florida Administrative Code: Count I, Section 475.25(1)(b); Count II, Section 475.25(1)(d)1.; Count III, Section 475.25(1)(k); and Count IV, Rule 21V-10.032. Counts V and VI allege violations of Section 475.25(1)(b) and Rule 21V-14.012(2) and (3), regarding the general manner in which the Respondent handled all escrow monies.
Findings Of Fact The Respondent, Gary W. Palmer, is a licensed real estate broker in the State of Florida. He has been licensed for approximately 15 years. Other than this proceeding, he has not been the subject of any discipline or any proceeding for alleged violation of Florida's real estate licensure laws or rules. In the summer and fall of 1990, a licensed real estate salesman named James Woods worked for the Respondent. On or about July 30, 1990, Woods entered into a contract for the purchase of real estate from an elderly woman named Estella Bagnell, through her son, Louis Bagnell, who had a power of attorney to conduct the transaction on his mother's behalf. The seller had listed the property through Century 21, Link Realty, Inc. (Link Realty). Shirley Link was the owner and real estate broker of the company. In the transaction, the seller was represented by Marge Lundberg, a licensed real estate salesperson. Under the contract, Woods made a $500 earnest money deposit and was to pay an additional $2,500 cash at the time of closing. Under the terms of the contract, the earnest money deposit was given to the Respondent, who was to hold it in escrow. The seller was to take back a purchase money mortgage for the balance of the purchase price at the time of closing. The closing was to take place on or about August 30, 1990. If Woods was unable to close, the seller was to be paid the $500 earnest money deposit. At Woods's request, the closing was delayed to September 6, 1990, to give him more time to come up with the down payment. Notwithstanding the delay, Woods was unable to pay the down payment, and the deal did not close. Lundberg telephoned Louis Bagnell and advised him that the transaction had not closed but that she had another prospect. A contract to sell the property to the second buyer was offered by the buyer on September 10, and accepted by the seller on September 14, 1990. Under its terms, the second contract was to close on September 25, 1990. The closing was later moved up to September 19, 1990. During a telephone conversation with Lundberg between September 6 and 19, 1990, Bagnell mentioned the Woods deposit and told Lundberg that, since the second tranaction followed so close on the failure of the first to close, and the closing of the second also was to happen very quickly, Bagnell would settle up with Lundberg on both transactions after the closing of the second. It is not clear whether Bagnell made it clear, or that Lundberg understood Bagnell to mean, that Bagnell was expecting to be paid the Woods deposit as a forfeiture. Bagnell testified that he did make it clear that he wanted the forfeited money. Lundberg testified that she did not recall discussing the matter of the deposit with Bagnell at all. The closing of the second contract took place as rescheduled on September 19, 1990. However, no arrangements were made to disburse the $500 Woods earnest money deposit from the Respondent's escrow account. At some point, apparently between September 19 and October 22, 1990, Woods telephoned Lundberg to briefly discuss the matter. According to their testimony, their recollections of the conversation differ markedly. Lundberg recalls that Woods apologized for his inability to close the transaction. Lundberg recalls assuring him not to worry, that it was no problem since the second transaction was signed and closed so quickly. Lundberg recalled thinking that the conversation seemed odd and wondering why Woods had telephoned. Woods, on the other hand, recalls that he placed the call for the purpose of inquiring whether the Bagnells were going to claim his $500 earnest money deposit. He testified that he could not recall the exact words Lundberg used, but he understood Lundberg to tell him that the Bagnells were not claiming the money, since the second transaction was signed and closed so quickly, and that there was "no problem, the money is yours." He interpreted this to mean that Lundberg was authorizing the disbursement of the $500 to him from escrow. On cross-examination by the Respondent, Woods testified that Lundberg told him she had the Bagnells' authorization to release the escrow, but it is doubtful that she used those words. Although the evidence is not clear, and assuming that neither party to the conversation falsely testified, it is likely that Woods was not completely forthright with Lundberg, did not clearly ask to have the $500 disbursed to him from escrow, and was too easily satisfied with what he interpreted as the response for which he was hoping. On the other hand, it also is likely that Lundberg carelessly made comments that could have been susceptible of being interpreted as an authorization to disburse the escrow money. Under the circumstances of what she thought was an "odd" conversation, it would have been wiser for her to clearly state to Woods that she had no authorization from the Bagnells to have the escrow money disbursed to Woods. On or about October 22, 1990, Woods told the Respondent that Lundberg, on behalf of the Bagnells, had authorized the Respondent to disburse Woods's $500 earnest money deposit to Woods. The Respondent drew a check on the escrow account in the amount of $500 and paid it to Woods, who negotiated it. Based on their good working relationship, the Respondent trusted Woods and, based on Woods's representation, believed that Lundsberg, on behalf of the Bagnells, had authorized release of the escrow to Woods. But even the Respondent conceded that it may not have been wise to do so in view of Woods's interest in the money. It is found that, under the circumstances, it was culpable negligence and a breach of trust the Bagnells had placed in the Respondent for the Respondent to release the escrow to Woods, notwithstanding the Respondent's good working relationship with Woods. At some point in time, probably in either late October, or on November 1 or 2, 1990, Louis Bagnell telephoned Link Realty to ask for the earnest money deposit and spoke to either Lundberg or Shirley Link. Link telephoned the Respondent's office and spoke to a male whom she could not positively identify by voice. She thinks it was Woods. She testified that she asked the man if the Woods escrow deposit already had been released. (It is unclear why she should have suspected that it had been.) She also advised him of Bagnell's request. She was told that the Respondent would get back with her after they looked into it. Link also advised Bagnell to make a written demand for forfeiture of the money under the terms of the Woods contract. It is not clear whether this advice was given before or after she telephoned the Respondent's office. On November 2, 1990, Louis Bagnell faxed Link Realty his written demand. Link testified that, when she received the Bagnell demand, she talked to Lundberg about it and asked whether Lundberg "inadvertently stated anything about the escrow." (It is curious that she would have asked such a question before the Respondent got back with her.) On November 5 or 6, 1990, Link received from the Respondent's office a faxed letter written and signed by Woods, indicating that the money was no longer in escrow, having been disbursed to Woods on or about October 22, 1990, upon the authorization of Lundberg to Woods. (It could have been at this point that Link spoke to Lundberg to ask if she had "inadvertently stated anything about the escrow." Cf. Finding 16, above.) On November 6, 1990, Link faxed to the Respondent a letter stating that Lundberg was not a broker and had no control over the escrow and stating that the only people who can release an escrow deposit are the "Seller, Buyer, or Realtors, all with the signed release of escrow (not the word of anyone)." The faxed letter concluded: "As you are aware the Seller is making a formal request on this deposit and it is my duty at this time to send this to FREC [the Florida Real Estate Commission]." Upon receipt of the Links fax, and further discussion with Woods, the Respondent was unsure how to proceed. In part to test Woods's motives, the Respondent decided to ask Woods to return the $500, reasoning that if Woods had lied to the Respondent in order to get the money, he probably was in financial need of it, and would be unwilling or unable to return it. Woods passed this test, willingly returning the $500 to the Respondent by check dated November 9, 1990. The memorandum on the check indicated "escrow replacement." At the same time, Woods continued to maintain that, in his telephone conversation with Lundberg, she had authorized the release of the escrow. The Respondent was concerned that, by redepositing the $500 into his escrow account, he would be making an admission against interest that the Respondent wrongfully had released it to Woods on October 22, 1990. The Respondent telephoned Randy Schwartz, a Florida licensed attorney with the Florida Board of Realtors, to discuss the question. Schwartz was not available, and the Respondent was referred to a woman named Grace Guardiz (phonetic), who the Respondent was given to understand also was an attorney. The Respondent did not retain the individual for the purpose of giving him legal advice or a legal opinion. It is not clear precisely what the Respondent asked or what the person told him. The Respondent testified that they discussed the subject in general terms and that the woman essentially agreed with the Respondent that he was in a "catch 22": if he did not deposit the money in his escrow account, he would be susceptible to the charge of not maintaining the money in escrow; if he did deposit the money in his escrow account, he would be susceptible to the charge of having wrongfully released it to Woods on October 22, 1990. With Woods's agreement, to avoid making an admission against interest that the Respondent wrongfully had released the money to Woods on October 22, 1990, the Respondent decided to deposit the money in his operating account, where it has remained to this day. The Respondent's position is that the money rightfully belongs to Woods. Woods testified that he understood the matter had been referred to the Florida Real Estate Commission (FREC) as an escrow dispute for resolution through issuance of an escrow disbursement order by FREC. He recalled being in the Respondent's office when the Respondent telephoned FREC about this. But the matter never was referred to FREC for an escrow disbursement order. Perhaps, Woods was recalling the concluding statement in Links' November 6, 1990, faxed letter. See Finding 17, above. Eventually, Louis Bagnell, in his mother's behalf, sued the Respondent in the Florida circuit court in Hillsborough County for recovery of the $500. Meanwhile, Louis Bagnell moved his residence and place of employment from Orlando to Pensacola. After the Respondent filed his answer in court, the Bagnells dismissed the suit without prejudice. During a routine August, 1990, audit that was completed before the Bagnell-Woods matter was brought to the Department's attention, it was discovered that the Respondent routinely maintains $141 of his own money in his escrow account. His purpose is twofold: first, the odd sum of $141 in the account alerts him and reminds him that it is his escrow account (to the Respondent, "141" means "one for one"); second, the odd sum of $141 added to the account helps the Respondent notice whether he wrongfully has been charged a service fee by the bank. The auditor accepted this explanation and did not cite the Respondent for an "overage" in the account. However, the auditor noted that the Respondent was not signing monthly reconciliation statements for the account, as required, and admonished him to do so. Had it not been for the Bagnell-Woods "escrow dispute," no further action would have been taken against the Respondent as a result of the August, 1990, audit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order: (1) reprimanding the Respondent for his violations of Sections 475.25(1)(b), (d)1., (e) (by violating F.A.C. Rule 21V-14.012(2)), and (k), Fla. Stat. (1991); (2) fining him $1,500; (3) requiring him to immediately place the $500 Woods re- deposit in his trust account and, within 30 days of entry of the final order, exercise one of the "escape procedures" set out in Section 475.25(1)(d)1.; and (4) requiring him to successfully complete 60 hours of post-licensure education for brokers, including a 30-hour broker management course, and provide evidence of completion to the Department within one year of entry of the final order. RECOMMENDED this 16th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 16th day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3746 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Department's proposed findings of fact (the Respondent not having filed any): 1.-22. Accepted and incorporated to the extent not subordinate or unnecessary. 23. Rejected as not proven as to Woods. They had a conversation which Woods, at least, thought was about the deposit. 24.-26. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that it was on November 3; otherwise, accepted and incorporated. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. 30.-33. Accepted and incorporated to the extent not subordinate or unnecessary. 34. Rejected as not proven that it was to "'prove' that it was not an escrow deposit." 35.-37. Accepted but subordinate and unnecessary. 38. Rejected as not proven. 39.-42. Accepted and incorporated to the extent not subordinate or unnecessary. 43. Rejected as not proven. 44.-47. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Gary W. Palmer 5225-A Ehrlich Road Tampa, Florida 33624 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
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, Holmes Nursery & Gardens Associates, LTD., is a wholesale and retail nursery providing a variety of landscape agricultural products. The east coast regional office for Petitioner is located at 1600 SW 20th Street, Fort Lauderdale, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highways Delray Beach, Florida. Respondent, Garden of Eden is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about April 23, 1986, Garden of Eden ordered and received delivery of $1770.00 worth of agricultural products from Petitioner. This purchase consisted of four viburnum odo., five weeping podocarpus and one bottlebrush. On or about April 25, 1986, Garden of Eden ordered and received delivery of $420.00 worth of agricultural products from Petitioner. This purchase consisted of three live oaks. On or about April 28, 1986, Garden of Eden ordered and received delivery of $312.50 worth of agricultural products from Petitioner. This purchase consisted of twenty-five viburnum odo. On or about April 29, 1986, Garden of Eden ordered and received delivery of $520.00 worth of agricultural products from Petitioner. This purchase consisted of four laurel oaks. On or about May 5, 1986, Garden of Eden ordered and received delivery of $1,130.00 worth of agricultural products from Petitioner. This purchase consisted of forty-seven crinum lily and six hundred and twenty-two liriope muscari. On or about May 13, 1986, Garden of Eden ordered and received delivery of $2,943.00 worth of agricultural products from Petitioner. This purchase consisted of seven cattley grava, and six paurotes. On or about May 28, 1986, Garden of Eden ordered and received delivery of $315.00 worth of agricultural products from Petitioner. This purchase consisted of one roebelinii single and one roebelinii double. On or about June 19, 1986, Garden of Eden ordered and received delivery of $300.00 worth of agricultural products from Petitioner. This purchase consisted of one paurotis 5 stem. The total amount of the agricultural products purchased by Garden of Eden was $7,710.50. On August 8, 1986, Garden of Eden paid $1060.00 on the account. On September 24, 1986, another $2500.00 was remitted to Holmes Gardens on this account. The balance of indebtedness owed by Garden of Eden to Holmes Gardens for the purchases listed above is $4,150.00. Petitioner claims it is due an additional sum of $436.04 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry; however, no written agreement or acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
The Issue The issue to be determined in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017- 108, entitled “SAIL Financing of Affordable Multifamily Housing Developments To Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits” was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. To promote affordable housing in Florida, Florida Housing offers a variety of programs to distribute housing credits. (Housing credits, also known as tax credits, are a dollar-for-dollar offset of federal income tax liability.) One of these programs is the State Apartment Incentive Loan program (“SAIL”), which provides low-interest loans on a competitive basis to affordable housing developers. SAIL funds are available each year to support the construction or substantial rehabilitation of multifamily units affordable to very low- income individuals and families. See § 420.5087, Fla. Stat. Additional sources of financial assistance include the Multifamily Mortgage Revenue Bond program (“MMRB”) and non- competitive housing credits. Florida Housing administers the competitive solicitation process to award low-income housing tax credits, SAIL funds, nontaxable revenue bonds, and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive application process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The Request for Application at issue in this matter is RFA 2017-108, entitled “SAIL Financing of Affordable Multifamily Housing Developments to Be Used in Conjunction with Tax-Exempt Bond Financing and Non-Competitive Housing Credits.” Florida Housing issued RFA 2017-108 on August 31, 2017. Applications were due by October 12, 2017.6/ The purpose of RFA 2017-108 is to distribute funding to create affordable housing in the State of Florida. Through RFA 2017-108, Florida Housing intends to award approximately $87,000,000 for proposed developments serving elderly and family demographic groups in small, medium, and large counties. RFA 2017-108 allocates $46,279,600 to large counties, $32,308,400 to medium counties, and $8,732,000 to small counties. RFA 2017-108 established goals to fund: Two Elderly, new construction Applications located in Large Counties; Three Family, new construction Applications located in Large Counties; One Elderly, new construction Application located in a Medium County; and Two Family, new construction Applications located in Medium Counties. Thirty-eight developers submitted applications in response to RFA 2017-108. Of these applicants, Florida Housing found 28 eligible for funding, including all Petitioners and Intervenors in this matter. Florida Housing received, processed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2017-108, Florida Administrative Code Chapters 67- 48 and 67-60, and applicable federal regulations. RFA 2017-108 provided that applicants were scored based on certain demographic and geographic funding tests. Florida Housing sorted applications from the highest scoring to the lowest. Only applications that met all the eligibility requirements were eligible for funding and considered for selection. Florida Housing created a Review Committee from amongst its staff to review and score each application. On November 15, 2017, the Review Committee announced its scores at a public meeting and recommended which projects should be awarded funding. On December 8, 2017, the Review Committee presented its recommendations to Florida Housing’s Board of Directors for final agency action. The Board of Directors subsequently approved the Review Committee’s recommendations and announced its intention to award funding to 16 applicants. As a preliminary matter, prior to the final hearing, Florida Housing agreed to the following reassessments in the scoring and selection of the applications for funding under RFA 2017-108: SP Lake and Osprey Pointe: In the selection process, Florida Housing erroneously determined that SP Lake was eligible to meet the funding goal for the “Family” demographic for the Family, Medium County, New Construction Goal. (SP Lake specifically applied for funding for the “Elderly” demographic.) Consequently, Florida Housing should have selected Osprey Pointe to meet the Family, Medium County, New Construction Goal. Osprey Pointe proposed to construct affordable housing in Pasco County, Florida. Florida Housing represents that Osprey Pointe is fully eligible for funding under RFA 2017-108. (While Osprey Pointe replaces SP Lake in the funding selection for the “Family” demographic, SP Lake remains eligible for funding for the “Elderly” demographic.) Sierra Bay and Northside II: In the scoring process, Florida Housing erroneously awarded Sierra Bay proximity points for Transit Services. Upon further review, Sierra Bay should have received zero proximity points. Consequently, Sierra Bay’s application is ineligible for funding under RFA 2017-108. By operation of the provisions of RFA 2017-108, Florida Housing should have selected Northside II (the next highest ranked, eligible applicant) for funding to meet the Elderly, Large County, New Construction Goal. Florida Housing represents that Northside II is fully eligible for funding under RFA 2017-108. Harbour Springs: Florida Housing initially deemed Harbour Springs eligible for funding under RFA 2017-108 and selected it to meet the Family, Large County, New Construction Goal. However, because Harbour Springs and Woodland Grove are owned by the same entity and applied using the same development site, under rule 67-48.004(1), Harbour Springs is ineligible for funding. (Florida Housing’s selection of Woodland Grove for funding for the Family, Large County, New Construction Goal, is not affected by this determination.) The sole disputed issue of material fact concerns Liberty Square’s challenge to Florida Housing’s selection of Woodland Grove to meet the Family, Large County Goal. Liberty Square and Woodland Grove applied to serve the same demographic population under RFA 2017-108. If Liberty Square successfully challenges Woodland Grove’s application, Liberty Square, as the next eligible applicant, will be selected for funding to meet the Family, Large County Goal instead of Woodland Grove. (At the hearing on December 8, 2017, Florida Housing’s Board of Directors awarded Woodland Grove $7,600,000 in funding.) The focus of Liberty Square’s challenge is the information Woodland Grove provided in response to RFA 2017-108, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” Liberty Square argues that Woodland Grove’s application is ineligible because its Development Location Point, as well as the locations of its Community Services and Transit Services, are inaccurate. Therefore, Woodland Grove should have received zero “Proximity” points which would have disqualified its application for funding. RFA 2017-108, Section Four, A.5.d(1), states, in pertinent part: All Applicants must provide a Development Location Point stated in decimal degrees, rounded to at least the sixth decimal place. RFA 2017-108 set forth scoring considerations based on latitude/longitude coordinates in Section Four, A.5.e, entitled “Proximity.” Section Four, A.5.e, states, in pertinent part: The Application may earn proximity points based on the distance between the Development Location Point and the Bus or Rail Transit Service . . . and the Community Services stated in Exhibit A. Proximity points will not be applied to the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference ” In other words, the Development Location Point identified the specific location of an applicant’s proposed housing site.7/ Applicants earned “proximity points” based on the distance between its Development Location Point and selected Transit and Community Services. Florida Housing also used the Development Location Point to determine whether an application satisfied the Mandatory Distance Requirement under RFA 2017-108, Section Four A.5.f. To be eligible for funding, all applications had to qualify for the Mandatory Distance Requirement. The response section to Section Four, A.5.d., is found in Exhibit A, section 5, which required each applicant to submit information regarding the “Location of proposed Development.” Section 5 specifically requested: County; Address of Development Site; Does the proposed Development consist of Scattered Sites?; Latitude and Longitude Coordinate; Proximity; Mandatory Distance Requirement; and Limited Development Area. Section 5.d. (Latitude and Longitude Coordinates) was subdivided into: (1) Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place Longitude in decimal degrees, rounded to at least the sixth decimal place In its application, Woodland Grove responded in section 5.a-d as follows: County: Miami-Dade Address of Development Site: NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032. Does the proposed Development consist of Scattered Sites? No. Latitude and Longitude Coordinate; Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place: 25.518647 Longitude in decimal degrees, rounded to at least the sixth decimal place: 80.418583 In plotting geographic coordinates, a “-” (negative) sign in front of the longitude indicates a location in the western hemisphere (i.e., west of the Prime Meridian, which is aligned with the Royal Observatory, Greenwich, England). A longitude without a “-” sign places the coordinate in the eastern hemisphere. (Similarly, a latitude with a negative value is south of the equator. A latitude without a “-” sign refers to a coordinate in the northern hemisphere.) As shown above, the longitude coordinate Woodland Grove listed in section 5.d(1) did not include a “-” sign. Consequently, instead of providing a coordinate for a site in Miami-Dade County, Florida, Woodland Grove entered a Development Location Point located on the direct opposite side of the planet (apparently, in India). At the final hearing, Florida Housing (and Woodland Grove) explained that, except for the lack of the “-” sign, the longitude Woodland Grove recorded would have fallen directly on the address it listed as its development site in section 5.b., i.e., the “NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032.” In addition to the longitude in section 5.d., Woodland Grove did not include a “-” sign before the longitude coordinates for its Transit Services in section 5.e(2)(b) or for any of the three Community Services provided in section 5.e(3). Again, without a “-” sign, the longitude for each of these services placed them in the eastern hemisphere (India) instead of the western hemisphere (Miami-Dade County). In its protest, Liberty Square contends that, because Woodland Grove’s application listed a Development Location Point in India, Florida Housing should have awarded Woodland Grove zero proximity points under Section Four, A.5.e. Consequently, Woodland Grove’s application failed to meet minimum proximity eligibility requirements and is ineligible for funding. Therefore, Liberty Square, as the next eligible applicant, should be awarded funding for the Family, Large County Goal, under RFA 2017-108.8/ Liberty Square asserts that a correct Development Location Point is critical because it serves as the beginning point for assigning proximity scores. Waiving an errant Development Location Point makes the proximity scoring meaningless. Consequently, any such waiver by Florida Housing is arbitrary, capricious, and contrary to competition. At the final hearing, Woodland Grove claimed that it inadvertently failed to include the “-” sign before the longitude points. To support its position, Woodland Grove expressed that, on the face of its application, it was obviously applying for funding for a project located in Miami-Dade County, Florida, not India. In at least five places in its application, Woodland Grove specified that its proposed development would be located in Miami-Dade County. Moreover, several attachments to Woodland Grove’s application specifically reference a development site in Florida. Woodland Grove attached a purchase agreement for property located in Miami-Dade County (Attachment 8). To satisfy the Ability to Proceed requirements in RFA 2017-108, Woodland Grove included several attachments which all list a Miami-Dade address (Attachments 9-14). Further, Woodland Grove submitted a Local Government Verification of Contribution – Loan Form executed on behalf of the Mayor of Miami-Dade County, which committed Miami-Dade County to contribute $1,000,000.00 to Woodland Grove’s proposed Development (Attachment 15). Finally, to qualify for a basis boost under RFA 2017-108, Woodland Grove presented a letter from Miami-Dade County’s Department of Regulatory and Economic Resources, which also referenced the address of the proposed development in Miami-Dade County (Attachment 16). In light of this information, Woodland Grove argues that its application, taken as a whole, clearly communicated that Woodland Grove intended to build affordable housing in Miami-Dade County. Nowhere in its application, did Woodland Grove reference a project in India other than the longitude coordinates which failed to include “-” signs. Accordingly, Florida Housing was legally authorized to waive Woodland Grove’s mistake as a “harmless error.” Thus, Florida Housing properly selected the Woodland Grove’s development for funding to meet the Family, Large County Goal. Florida Housing advocates for Woodland Grove’s selection to meet the Family, Large County Goal, under RFA 2017- 108. Florida Housing considers the omission of the “-” signs before the longitude coordinates a “Minor Irregularity” under rule 67-60.002(6). Therefore, Florida Housing properly acted within its legal authority to waive, and then correct, Woodland Grove’s faulty longitude coordinates when scoring its application. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s current Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process; although, she did not personally participate in the review, scoring, or selection decisions for RFA 2017-108. Ms. Button initially explained the process by which Florida Housing selected the 16 developments for funding under RFA 2017-108. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. The Review Committee members independently evaluated and scored their assigned portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. Ms. Button further explained that applicants occasionally make errors in their applications. However, not all errors render an application ineligible. Florida Housing is authorized to waive “Minor Irregularities.” As delineated in RFA 2017-108, Section Three, A.2.C., Florida Housing may waive “Minor Irregularities” when the errors do not provide a competitive advantage or adversely impact the interests of Florida Housing or the public. See Fla. Admin. Code R. 67- 60.002(6) and 67-60.008. Such was the case regarding Woodland Grove’s application. Heather Green, the Florida Housing staff member who scored the “Proximity” portion of RFA 2017-108, waived the inaccurate longitude coordinates as “Minor Irregularities.” Ms. Green then reviewed Woodland Grove’s application as if the proposed development was located in Miami-Dade County, Florida. Florida Housing assigned Ms. Green, a Multifamily Loans Manager, as the lead scorer for the “Proximity” portion of RFA 2017-108, which included the Development Location Point listed in Exhibit A, section 5.d. Ms. Green has worked for Florida Housing since 2003 and has scored proximity points for Request for Applications for over ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Green. In her deposition, Ms. Green testified that she is fully aware that, to be located in the western hemisphere (i.e., Miami-Dade County), a longitude coordinate should be marked with a negative sign or a “W.” Despite this, Ms. Green felt that the longitude coordinates Woodland Grove used without negative signs, particularly its Development Location Point, were clearly typos or unintentional mistakes. Therefore, Ms. Green waived the lack of a negative sign in front of the longitude coordinates in section 5.d. and section 5.e. as “Minor Irregularities.” Ms. Green understood that she was authorized to waive “Minor Irregularities” by rule under the Florida Administrative Code. Ms. Green felt comfortable waiving the inaccurate longitude coordinates because everywhere else in Woodland Grove’s application specifically showed that its proposed housing development was located in Miami-Dade County, not India. Accordingly, when scoring Woodland Grove’s application, Ms. Green corrected the longitude entries by including a negative sign when she plotted the coordinates with her mapping software. Ms. Green then determined that, when a “-” was inserted before the longitude, the coordinate lined up with the address Woodland Grove listed for the Development Location Point. Therefore, Woodland Grove received proximity points and was eligible for funding under RFA 2017-108. (See RFA 2017-108, Section Five.A.1.) However, Ms. Green acknowledged that if she had scored the application just as it was presented, Woodland Grove would not have met the required qualifications for eligibility. Ms. Button relayed that Florida Housing fully accepted Ms. Green’s decision to waive the missing negative signs in Woodland Grove’s response to section 5.d. and 5.e. as “Minor Irregularities.” Ms. Button opined that Woodland Grove’s failure to place a “-” mark before the longitude was clearly an unintentional mistake. Ms. Button further commented that Florida Housing did not believe that scoring Woodland Grove’s development as if located in the western hemisphere (instead of India), provided Woodland Grove a competitive advantage. Because it was evident on the face of the application that Woodland Grove desired to develop a housing site in Miami-Dade County, Ms. Green’s decision to overlook the missing “-” sign did not award Woodland Grove additional points or grant Woodland Grove an advantage over other applicants. Neither did it adversely impact the interests of Florida Housing or the public. However, Ms. Button also conceded that if Ms. Green had scored the application without adding the “-” sign, Woodland Grove would have received zero proximity points. This result would have rendered Woodland Grove’s application ineligible for funding. Ms. Button also pointed out that Ms. Green waived the omission of “-” signs in two other applications as “Minor Irregularities.” Both Springhill Apartments, LLC, and Harbour Springs failed to include negative signs in front of their longitude coordinates. As with Woodland Grove, Ms. Green considered the development sites in those applications as if they were located in Miami-Dade County (i.e., in the western hemisphere). Ms. Green also waived a mistake in the Avery Commons application as a “Minor Irregularity.” The longitude coordinate for the Avery Commons Development Location Point (section 5.d(1)) was blank. However, Ms. Green determined that Avery Commons had placed the longitude in the blank reserved for Scattered Sites coordinates (section 5.d(2)). When scoring Avery Commons’ application, Ms. Green considered the coordinate in the appropriate section. According to Ms. Button, Florida Housing felt that this variation did not provide Avery Commons a competitive advantage. Nor did it adversely impact the interests of Florida Housing or the public. Finally, Ms. Button explained that the application Florida Housing used for RFA 2017-108 was a relatively new format. In previous Request For Applications, Florida Housing required applicants to submit a Surveyor Certification Form. On the (now obsolete) Surveyor Certification Form, Florida Housing prefilled in an “N” in front of all the latitude coordinates and a “W” in front of all the longitude coordinates. However, the application used in RFA 2017-108 did not place an “N” or “W” before the Development Location Point coordinates. Based on the evidence presented at the final hearing, Liberty Square did not establish, by a preponderance of the evidence, that Florida Housing’s decision to award funding to Woodland Grove for the Family, Large County Goal, under RFA 2017-108 was clearly erroneous, contrary to competition, arbitrary, or capricious. Florida Housing was within its legal authority to waive, then correct, the missing “-” sign in Woodland Grove’s application as “Minor Irregularity.” Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to select Woodland Grove for funding was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-108.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by Liberty Square. It is further recommended that Florida Housing Finance Corporation rescind the intended awards to Sierra Bay, SP Lake, and Harbour Springs, and instead designate Northside II, Osprey Pointe, and Pembroke Tower Apartments as the recipients of funding under RFA 2017-108.10/ DONE AND ENTERED this 19th day of April, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2018.
The Issue The issue in this case is whether Respondent, Laurel Oaks Apartments ("Laurel Oaks"), discriminated against Petitioner, Lawrence Jacobs, Jr., on the basis of his race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a 22-year-old African-American male. At all times relevant hereto, Petitioner was residing at Laurel Oaks in Temple Terrace, Florida. Petitioner co-habited at Laurel Oaks with a woman, Sade Newton. Petitioner and Newton were expecting a child during the time they resided at Laurel Oaks. Laurel Oaks Apartments is the Respondent. It is a large apartment complex comprised of several buildings. Approximately 70 to 75 percent of the residents of Laurel Oaks are minorities. Petitioner moved into Laurel Oaks on or about November 3, 2009. Petitioner and Newton signed an Apartment Lease Contract (the "Lease") on that date. Petitioner was assigned apartment number 8704 (the "Initial Unit") at a rental fee of $589.00 per month. The term of the Lease was one year. Almost immediately upon taking possession of the Initial Unit, Petitioner began to have some sort of confrontation with a neighboring tenant and his family (hereinafter referred to as the "Neighbor"). Specifically, Petitioner felt that the Neighbor's children were too loud, and that they were disrupting Petitioner's quiet enjoyment of his residence. Petitioner and the Neighbor argued numerous times, and Petitioner reported these arguments to Respondent. Upon receiving Petitioner's complaints about the Neighbor, Respondent offered to let Petitioner out of his Lease or move him to another apartment. In fact, Respondent agreed to allow Petitioner to move into an upgraded apartment with no increase in the rental fee. Respondent also agreed to waive the transfer fee normally associated with moving from one apartment to another. Petitioner believes that Respondent was dilatory in helping him move to a different apartment. However, there is no evidence to support that contention. The assistant community manager, Makell, indicated that she provided Petitioner with four possible options for moving. Some of the units she offered were undergoing painting or repairs and were not immediately available. Makell remembers only one telephone call from Petitioner concerning his potential interest in one of the available units. Petitioner remembers calling regularly to inquire about the units. Makell also remembers Petitioner ultimately asking for a specific apartment, number 8716 (the "Second Unit"). Petitioner and Newton signed a new lease (referred to herein as the "New Lease") for the Second Unit on February 8, 2010, and moved in on that date. The New Lease was also for a term of one year. The Second Unit was an upgrade from the Initial Unit, but Petitioner was not charged a higher rental fee. The Second Unit was, inexplicably, directly "across the way"1 from the apartment where the Neighbor resided. The evidence as to why Petitioner chose that unit or why he agreed to move into that unit was contradictory and confusing. Nonetheless, it is clear that Petitioner at some point voluntarily moved into the Second Unit. Shortly after Petitioner and Newton moved into the Second Unit, they had some sort of domestic squabble. Newton was pregnant with Petitioner's child, and there were some tensions between them. As a result of the squabble, someone called the police. When the police arrived, they talked with Petitioner and Newton for about an hour and then arrested Newton for domestic violence. Petitioner believes Newton had to be arrested pursuant to police policy, i.e., once the police are called to investigate domestic violence, they have to arrest one of the parties. There was no persuasive, non-hearsay evidence to confirm that such a policy exists. All charges against Newton were apparently dropped. However, the significance of Newton's arrest is that it constituted a breach of the New Lease. Paragraph 28 of the New Lease prohibits conduct which infringes on the quiet enjoyment of the apartment complex by other tenants. As a result, Laurel Oaks gave Petitioner and Newton a "Seven Day Notice of Noncompliance Without Opportunity to Cure" (the "Notice"), which effectively evicted them from the Second Unit. Petitioner does not deny that the New Lease was breached; he admitted so in a letter to Respondent dated May 12, 2010, about a week after the domestic violence arrest occurred. In his letter, Petitioner asks Respondent to reconsider its decision to uphold the provision in the New Lease and to rescind the Notice. Despite Petitioner's plea, Respondent stood by its Notice, and Petitioner was forced to move out of the apartment. At some point thereafter, Petitioner and a representative from Laurel Oaks did a "walk-through" of the Second Unit. A tenant who defaulted under a Laurel Oaks lease would normally be liable for any damages and for all rent that came due until the unit was re-leased. Laurel Oaks suggested at the time of the walk-through that Petitioner would receive a prorated refund for the current month (May) and would not be charged for the remainder of the Lease term. However, Petitioner, thereafter, got into an argument with the community manager, Heckinger, and Heckinger decided to pursue all allowable charges against Petitioner. As a result, when Petitioner received his ultimate receipt from Laurel Oaks, it included a demand for payment in the amount of $589.00 for termination of the Lease, forfeiture of Petitioner's $99.00 security deposit, and the remaining May rent amount ($114.00). Petitioner believes Heckinger and other employees of Laurel Oaks did not take him as seriously as other tenants. He believes Heckinger was "nasty" to him, but not to other tenants. Petitioner believes his request to move to a different apartment was not responded to in a timely fashion. Petitioner provided no evidence that any other residents were, in fact, treated differently than he was treated. There was no evidence presented that persons of color, including Petitioner, were treated differently than similarly situated persons. There was no persuasive evidence that any person affiliated with Laurel Oaks treated Petitioner badly or discriminated against him in any fashion. Laurel Oaks actually did more for Petitioner than was required or mandated by the Lease or by law. Petitioner was given the benefit of the doubt, was provided extra accommodation for his problems, and was treated appropriately. Petitioner also admitted that he did not believe the Laurel Oaks employees were racist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Lawrence Jacob, Jr.'s, Petition for Relief in full. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2010.
The Issue The issue is whether Garden World of Holiday, Inc., d/b/a Garden World (Respondent), and its surety, Platte River Insurance Company, owe funds to Sturon, Inc. (Petitioner), for the sale of agricultural products.
Findings Of Fact The Petitioner was a producer of agricultural products, specifically tropical foliage materials. The Respondent was a dealer of agricultural products and was apparently involved in a large project that required obtaining substantial quantities of tropical foliage plant product. In July 2006, the Respondent contacted the Petitioner and inquired as to the availability of tropical foliage plant product. The Petitioner and the Respondent had not previously done business together. At the beginning of the sales transactions, the Respondent sought, and the Petitioner granted, a line of credit for the plant material purchases. Beginning on July 28, 2006, and continuing through September 22, 2006, the Respondent purchased and took delivery of tropical foliage plant product from the Petitioner. All materials sold by the Petitioner to the Respondent were in response to telephone orders placed by the Respondent. There is no evidence that the Petitioner charged for any plant materials that were not ordered by the Respondent. All charges for all plants sold by the Petitioner to the Respondent were billed on invoices that were sent by the Petitioner to the Respondent within one day of each delivery. The quantities and prices of the plants were clearly set forth on the invoices. The evidence establishes that the Respondent received the invoices and was aware of the prices being charged by the Petitioner. The Respondent has asserted that there were conversations about the prices being charged by the Petitioner, but there was no evidence presented that there was any agreement between the parties under which the Petitioner agreed to reduce the prices being invoiced. Despite the alleged price concern, the Respondent continued to order plant materials from the Petitioner. Based on a review of the invoices, the total cost of the plant materials sold by the Petitioner to the Respondent was $164,362.67. The Respondent has paid a total of $66,968.69 to the Petitioner. The total unpaid amount is $97,393.98. The Petitioner routinely grew various types of foliage product. When the Petitioner's own supplies were insufficient, or the material requested was not of a type grown by the Petitioner, the Petitioner located and obtained plant materials from other producers for purposes of resale to dealers. The prices of plants obtained from other producers for resale included a "markup" for locating and obtaining the materials for purchase by a dealer. In supplying the plant materials requested by the Respondent in this case, the Petitioner sold from its own inventory and obtained materials from other producers for resale to the Respondent. There was no evidence that the markup was unreasonable or was not common practice in the industry. There is no evidence that the Respondent attempted to locate and obtain plant materials from other suppliers rather than from the Petitioner because of dissatisfaction with the Petitioner's prices. At the hearing, counsel for the Respondent asserted that the Respondent's refusal to pay was related to "price gouging" by the Petitioner. There is no evidence that the Petitioner engaged in "price gouging." There was no evidence that the Respondent could not have located and obtained the plant materials from the same sources from which the Petitioner obtained the materials it did not produce. Although prior to the hearing, the Respondent asserted that some plant materials were not of appropriate quality; there was no evidence presented at the hearing of any quality problems that were not immediately resolved at the time of delivery. At one time, the Respondent asserted that the entity for which the Respondent was purchasing and installing plant materials was tax exempt and that the amount owed should have been accordingly reduced, but there was no evidence offered in support of the assertion and no reduction has been set forth in this Recommended Order. The Respondent presented no evidence to establish any legitimate reason to avoid payment of the $97,393.98 owed to the Petitioner.
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 directing that the Respondent pay the total of $97,393.98, to the Petitioner, and providing for such other procedures as are appropriate to provide for satisfaction of the debt. DONE AND ENTERED this 9th day of July, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 9th day of July, 2007.
Findings Of Fact Maribel Mackey is the sole proprietor of Petitioner Maribe1 Mackey Landscaping. As a woman of Hispanic heritage (Cuban), she falls into two of the presumptive categories of socially and economically disadvantaged individuals. Petitioner is a landscaping company started in April, 1990, by Maribel Mackey as its sole owner. The company does not itself perform either irrigation or sod work as was sworn to on its application; rather, it subcontracts those items of work when they are required under a contract. Petitioner conducts business out of the home of Maribel and Robert Mackey at 5032 S.W. 121 Avenue, Cooper City, Florida. Robert and Maribel Mackey were married in March, 1988. Maribel Mackey had no prior experience in the landscaping business prior to starting her business. Robert Mackey is the sole shareholder of a landscaping company known as Robert Mackey Landscaping, Inc., incorporated in 1988. Prior to the formation of that business entity, Robert Mackey was the sole proprietor of Robert Mackey Landscaping from approximately 1982 to 1988. In total, Robert Mackey has been in the landscaping business for approximately 17-18 years. Robert Mackey also conducts his 1andscaping business out of the home he shares with Maribel. Both businesses share the same office in the Mackey home and share the same office equipment, which includes: a desk, a phone (which doubles as their home phone), a file cabinet, a copying machine and a fax machine. Robert Mackey acts in more than an advisory capacity with Petitioner. Robert Mackey also assisits Maribel Mackey with bid estimating and in the supervision of field operations. Robert Mackey has also helped Maribel Mackey Landscaping to obtain credit for the purchase of landscaping supplies at nurseries and in the leasing of equipment used in the landscaping business. Robert Mackey performed and/or assisted Maribel Mackey in putting together a Proposal on the Kathcar Building. The original of this Proposal was done on a form of Robert Mackey Landscaping and was signed by Robert Mackey. The copy forwarded to the Department and admitted as an exhibit during the final hearing had been altered to reflect Petitioner's name and the signature of Maribel Mackey had been added to that of Robert. Robert and Maribel Mackey maintain a line of credit in the amount of $100,000. This line of credit is available to both of them for either personal or business purposes and requires both signatures. This line of credit is secured by a mortgage on the Mackeys' personal residence. Maribel and Robert Mackey have an informal, oral agreement not to compete with each other in the landscaping business. Maribel Mackey is prepared to forfeit substantial profits on behalf of Petitioner by referring potential landscaping jobs to her husband's company. Maribel and Robert Mackey, as part of this agreement, have agreed that Petitioner will concentrate exclusively on public or government projects, while Robert Mackey Landscaping will concentrate exclusively on private projects. Petitioner has, however, done private work, and Robert Mackey Landscaping has done public work and currently has a bid in on another public project. In addition, Maribel Mackey's business card states on its face that Petitioner performs "residentia1 and interior" work. Petitioner is currently certified as a Women's Business Enterprise and/or a Minority Business Enterprise with the following governmental entities: Broward County, The School Board of Broward County, and Palm Beach County. Broward County, in its evaluation of Petitioner's application to be certified as a WBE/MBE, did not visit Petitioner's place cf business to conduct an on-site interview with Maribel Mackey. Broward County, when it certified Petitioner as a WBE/MBE, did not know that Petitioner shared the same office space and equipment with Robert Mackey Landscaping. Broward County also did not know that Robert Mackey had his own landscaping business or that he had been in the landscaping business for approximately 17-18 years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner Maribel Mackey Landscaping certification as a Disadvantaged Business Enterprise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of January, 1991. LINDA M. RIGOT Hearing Officeer 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 24th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5830 Petitioner's proposed findings of fact numbered 1-3 and 5 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 6-8 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 9-11 have been rejected as not constituting findings of fact but rather as constituting argument. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: William Peter Martin Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458 Maribel Mackey 5032 Southwest 121 Avenue Cooper City, Florida 33330 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458
