The Issue Whether Respondent is indebted to Petitioners in the amount of $7,152, as alleged in Petitioner's complaint. The hearing in this matter was originally set for January 22, 1979. Respondent orally requested a continuance on January 19, 1979, which was granted. At the rescheduled hearing on February 26, 1979, neither Respondent nor any representative in his behalf appeared at the hearing. A Supplemental Notice of Hearing had been issued by the Hearing Officer on February 2, 1979. In view of Respondent's absence, the matter was tried as an uncontested proceeding.
Findings Of Fact Petitioners are producers of agricultural products in Florida. Respondent Don R. Smith, d/b/a Wabash Valley Sales, Vincennes, Indianna, is a licensed dealer in agricultural products pursuant to Chapter 604, Florida Statutes. Respondent was bonded pursuant to Chapter 604 as such a Florida dealer in the amount of $20,000 during the period June 4, 1977 to June 3, 1978. Surety on the bond was Fidelity and Deposit Company of Maryland, Baltimore, Maryland. The bond is conditioned to secure the faithful accounting for and payment to producers of the proceeds of all agricultural products handled or sold by the bonded dealer. (Testimony of Addison, Petitioners' Exhibit 4) During the spring of 1978, Petitioners made arrangements with M. A. Bridgeman, representative of Respondent, to grade, pack, sell, and ship tomatoes produced by Petitioners at varying prices per box. It was agreed between the parties that Respondent would be paid $1.60 per box for the above services and that the balance of the selling price would be remitted to Petitioners. There was no written contract between the parties, as is customary in the trade, nor any specified period for accounting for the proceeds of the sales. (Testimony of Addison, Bridgeman, Complaint) During the period April 10 to May 5, 1978, petitioners provided a total of 2,460 boxes of various size tomatoes to be sold for the total price of $12,588.80, in accordance with the terms of their agreement. Six of the lots were sold in April, 1978, and two were sold on May 3 and May 5, 1978, to various in-state and out-of-state purchasers by Respondent. In some instances, Bridgeman received payment from purchasers which he immediately placed in Respondent's bank account. Some payments were made directly to Respondent's place of business in Indiana. The entire sum of $12,588.80 was collected in this manner by Respondent or his agent. (Testimony of Addison, Bridgeman, Petitioners' Exhibits 2-3) Under the terms of the agreement, Respondent's fee for handling the tomatoes amounted to $3,936, leaving a balance due and owing Petitioners of $8,652.80. Although Petitioners demanded an accounting from Respondent on several occasions, Respondent did nothing in this respect until August 22, 1978, at which time he remitted a check to Petitioners in the amount of $1,500. A notation on the check indicated that it was in partial payment for tomatoes. (Testimony of Addison, Bridgeman, Petitioners' Exhibit 6) Not having received the balance of $7,152.80 from Respondent, Petitioners filed a complaint with the Florida Commissioner of Agriculture on August 30, 1978, pursuant to Chapter 604, Florida Statutes, and notice of such complaint was provided Respondent by the Department of Agriculture and Consumer Services on September 26, 1978. Respondent filed an answer to the complaint on October 10, 1978, wherein he admitted indebtedness in the amount of $5,652, but claimed that the total amount involved in the transactions was only $7,152, and further requested a hearing in the matter. (Testimony of Addison, Petitioner's Exhibits 5-6)
Recommendation That the Department of Agriculture and Consumer Services issue a final order requiring the Respondent herein to make payment in the amount of $7,152.80 to Petitioners herein within fifteen days of Respondent's receipt of the said final order. DONE and ENTERED this 9th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph S. Marcus, Esquire 317 North Krome Avenue Homestead, Florida 33030 Don R. Smith d/b/a Wabash Valley Sales Post Office Box 266 Vincennes, Indiana 47591 Earl Peterson Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
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 Respondents have all been charged with multiple violations of Chapter 48, Florida Statutes. The specific violations charged raise the following issues: Whether the Respondents violated Section 489.023(1), Florida Statutes, by offering, disposing, or participating in the offer or disposition of subdivided lands located in Dade and Osceola Counties, Florida, without a valid order of registration from the Division of Florida Land Sales, Condominiums and Mobile Homes. Whether the Respondents violated Section 498.023(2), Florida Statutes, by disposing or participating in the disposition of subdivided lands located in Dade and Osceola Counties, Florida, without furnishing each purchaser with a public offering statement, approved by the Division of Florida Land Sales, Condominiums and Mobile Homes, prior to the purchase. Whether the Respondents violated Section 498.023(3), Florida Statutes, by disposing or participating in the disposition of subdivided lands principally offered by long distance telephone solicitation without furnishing the prospective purchaser with a copy of a synopsis or summary of the sales script, approved by the Division of Florida Land Sales, Condominiums and Mobile Homes prior to the execution of the sales agreement Whether Melvin Lewis, Larry Burton Lewis, Virginia G. Young, or Julio Bercowicz are jointly and severally liable with one or more of the other Respondents for the foregoing violations because of materially participating in the offer or disposition of subdivided lands located in Florida, which offers or dispositions were made in violation of Chapter 498, Florida Statutes, and involved fraud, deception, false pretenses, misrepresentation, or false advertising. Underlying all of the foregoing issues is the issue of whether the activities of the Respondents alleged in the several Notices To Show Cause constitute a "common promotional plan" within the meaning of Rule 7D-1.003(3), Florida Administrative Code.
Findings Of Fact At all times material to these cases, Melvin Lewis and Fay Lewis were and are husband and wife. Larry Burton Lewis ("Larry Lewis") and Cindy Morales are their son and daughter. During the period June 11, 1984, through March 16, 1987 (and perhaps later), Helen Lewis was married to Larry Lewis. Julio Bercowicz is the brother of Helen Lewis. From 1980 through 1987, Virginia Young was employed by Melvin Lewis as a secretary. South Florida Properties, Inc., was a Florida corporation created on April 26, 1977, for purposes which included selling real property located in section 21, township 54 south, range 37 east, Dade County, Florida, comprising 48 lots known as South Florida Properties. West Miami Estates, Inc., is an active Florida corporation created on July 20, 1978, for purposes which included selling the following real property: approximately 40 acres in the southeast 1/4 of the northwest 1/4 of section 19, approximately 10 acres in the northeast 1/4 of the southeast 1/4 of the southeast 1/4 of section 33, and approximately 21.25 acres in the northwest 1/4 of the northeast 1/4 of section 34, all in township 55 south, range 37 east, Dade County, Florida, comprising 48 lots known as West Miami Estates. Miami Kendall Estates, Inc., is an active Florida corporation created on October 12, 1979, for purposes which included selling approximately 60 acres in both the southwest 1/4 and the southern 1/2 of the northwest 1/4, of the southwest 1/4 of section 17, township 54 south, range 38 east, and approximately 10 acres in the east 1/2 of the east 1/2 of the southeast 1/4 of the southeast 1/4 of section 35, township 55 south, range 37 east, Dade County, Florida, comprising 48 lots known as Miami Kendall Estates. Randy Landes was the original incorporator, director, and president of Miami Kendall Estates, Inc. Miami Kendall West Inc., was a Florida corporation created on April 15, 1980, for purposes which included selling approximately 10 acres in the south 1/2 of the south 1/2 of the southwest 1/4 of section 32, township 54 south, range 38 east, and approximately 40 acres in the northeast 1/4 and approximately 20 acres in the west 1/2 of the southwest 1/4, both in the southwest 1/4 of section 34, township 55 south, range 37 east, section 34, Dade County, Florida, comprising 46 lots known as Miami Kendall West. Gateway Acres, Inc., is an active Florida corporation created on February 9, 1984, for purposes which included selling approximately 60 acres located in the western 1/2 of the southeast 1/4 of section 16, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots, numbered 27 through 39 and 42 through 76, known as Gateway Acres. Maingate Acres, Inc., is an active Florida corporation created on June 11, 1984, for purposes which included selling approximately 35 acres located in the western 1/2 of the southeast 1/4 and in the northeastern 1/4 of the southwest 1/4 of section 16, township 25 south, range 27 east, Osceola County, Florida, comprising 28 lots, numbered 1 through 26, 40, and 41, known as Maingate Acres. Central Florida Estates, Inc., is an active Florida corporation created on November 4, 1985, for purposes which included selling approximately 60 acres located in the southern 3/4 of the south 1/2 of the northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots known as Central Florida Estates. Mid-Florida Acres, Inc., is an active Florida corporation created on December 18, 1985, for purposes which included selling approximately 60 acres located in the north 1/2 of the northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots known as Mid-Florida Acres. Melvin Lewis controlled or participated in the formation, operation, or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., and Central Florida Estates, Inc., as follows: Melvin Lewis was a subscriber to the formation of South Florida Properties, Inc., Gateway Acres, Inc., and M and L Management, Inc., and participated in the formation of Central Florida Estates, Inc. Melvin Lewis is and has been the sole shareholder of Gateway Acres, Inc., since 1984, of Maingate Acres, Inc., since 1986, and of Miami Kendall Estates, Inc., and Central Florida Estates, Inc., since 1988. Melvin Lewis was the president of South Florida Properties, Inc., from 1977 through 1983; the president and a director of Miami Kendall Estates, Inc., from 1988 to the present; the president of Gateway Acres, Inc., from 1984 to present; the president of M and L Management, Inc., from 1985 to the present; the president and a director of Maingate Acres, Inc., from 1987 to the present; and the president and a director of Central Florida Estates Inc., from 1988 to the present. Melvin Lewis has been the registered agent for Gateway Acres, Inc., from 1984; for Maingate Acres, Inc., from 1986; for M and L Management, Inc., from 1985; and for Central Florida Estates, Inc., from 1988. Melvin Lewis executed the following checks, drawn on the indicated bank accounts, to pay the necessary filing fees to the Florida Secretary of State for the incorporation of the indicated corporations: Gateway Acres, Inc., paid by check number 161, and Maingate Acres, Inc., paid by check number 186, both drawn on the account of Melvin Lewis Licensed Real Estate Broker, account number 0104101960, with the Executive National Bank. M and L Management, Inc., paid by check number 50 drawn on the account of Gateway Acres, Inc., account number 0104105354, Executive National Bank. Central Florida Estates, Inc., paid by check number 2333 drawn on the account of Melvin Lewis and Fay Lewis, account number 0107205147, Executive National Bank. Melvin Lewis participated in dividing into lots for resale those parcels known as Miami Kendall Estates, Gateway Acres, Maingate Acres, and Central Florida Estates. Melvin Lewis directed and controlled the sale of lots in Miami Kendall Estates, Gateway Acres, and Maingate Acres. He further directed and controlled the sale of lots in Central Florida Estates as the real estate broker for Central Florida Estates, Inc. Melvin Lewis was authorized to execute agreements for deed as an agent for west Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., and Maingate Acres, Inc. As an authorized agent for each corporation, he executed at least two agreements for deed for west Miami Estates, Inc. (November 6, 1978 and August 15, 1979), one each for Miami Kendall Estates, Inc. (January 12, 1980), and Miami Kendall West, Inc. (January 28, 1981), four for Gateway Acres, Inc. (September 12, 26, 30 and October 5, 1984), and three for Maingate Acres, Inc. (September 7, 10, 14, 1984). As a notary public commissioned by the State of Florida, Melvin Lewis notarized the signature of Cindy Morales on six agreements for deed for Miami Kendall west, Inc. (dated from March 22 through September 21, 1982), and on one agreement for deed for Central Florida Estates, Inc. (January 28, 1986). He also notarized the signature of Fay Lewis on forty agreements for deed for Gateway Acres, Inc. (dated from April 23, 1984, through August 8, 1985), and on twenty agreements for deed for Maingate Acres, Inc. (dated from July 8 through October 31, 1984). He also notarized the agreement for deed, dated November 11, 1984, between Maingate Acres Inc., and Irma Jean DeWitt and/or Jean M. Hutchens for Maingate Acres lot 11. Melvin Lewis also notarized the corporate execution for deeds conveying lots to purchasers from West Miami Estates, Inc., Miami Kendall Estates, Inc., and Miami Kendall West, Inc. Larry Lewis controlled or participated in the formation, operation, or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc. as follows: Larry Lewis was a subscriber in the formation of West Miami Estates, Inc., and South Florida Properties, Inc., and participated in the formation of Central Florida Estates, Inc. Larry Lewis was president and a director of West Miami Estates, Inc., from 1979 through 1984, and from 1987 to the present; an officer of South Florida Properties, Inc., from 1977 to 1979; and the president of Mid-Florida Acres; Inc., from 1987 to the present. Larry Lewis has been the sole shareholder of West Miami Estates, Inc., since 1978 and the sole shareholder of Mid-Florida Acres, Inc., since 1986. Larry Lewis participated in dividing into lots for resale those parcels known as West Miami Estates and Mid-Florida Acres. From the inception of West Miami Estates, Inc., and of Mid-Florida Acres, Inc., Larry Lewis has controlled the daily operations and sale of lots by each corporation. Purchasers for lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid- Florida Acres were solicited by Larry Lewis using long distance telephone calls. Fay Lewis controlled or participated in the formation, operation or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., and Maingate Acres, Inc., as follows: Fay Lewis was a subscriber to the formation of South Florida Properties, Inc., and Miami Kendall West, Inc. Fay Lewis was the president and a director of Miami Kendall West, Inc., from its inception in 1980 until its dissolution in 1988. As president of West Miami Estates, Inc., Fay Lewis executed the warranty deed conveying lot 35A of West Miami Estates to Troy Johnson. From April 30, 1984, to August 12, 1985, Fay Lewis executed at least forty agreements for deed on behalf of Gateway Acres, Inc.; thirty-eight as corporate secretary and two as an agent for the corporation. From July 17 to November 19, 1984, Fay Lewis executed at least twenty agreements for deed on behalf of Maingate Acres, Inc.; eighteen as corporate secretary and two as an agent for the corporation. Fay Lewis executed two separate warranty deeds conveying lots in Miami Kendall Estates as a witness to the execution by the president of Miami Kendall Estates, Inc. Cindy Morales participated in the operation or business of Miami Kendall Estates, Inc., Miami Kendall West, Inc., and Central Florida Estates, Inc., as follows: From April 29 to September 28, 1982, Cindy Morales executed six agreements for deed as an authorized agent for Miami Kendall West, Inc. From January 21 to February 27, 1986, Cindy Morales executed fifteen agreements for deed as an authorized agent for Central Florida Estates, Inc. Cindy Morales also executed two separate warranty deeds conveying lots in Miami Kendall Estates as a witness to the execution by the president of Miami Kendall Estates, Inc. In 1985, Virginia Young participated in the formation of Central Florida Estates, Inc., and was listed as the sole subscriber, president, and registered agent. She participated in the daily operations of the corporation, including the filing of annual reports with the Florida Secretary of State. In 1987, she resigned her positions with Central Florida Estates, Inc., and transferred the corporation to Melvin Lewis. Saundra Bonduel ("Bonduel"), who was Melvin Lewis' accountant, was an officer in South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., and Central Florida Estates, Inc., as follows: Bonduel was a vice president of South Florida Properties, Inc., from 1978 to 1983; of West Miami Estates, Inc., from 1979 to the present; of Miami Kendall West, Inc., from 1981 to 1987; of Gateway Acres, Inc., and Maingate Acres, Inc., from 1985 to the present; of M and L Management, Inc., from 1987 to the present, and of Miami Kendall Estates, Inc.; and Central Florida Estates, Inc., from 1988 to the present. Bonduel was a director and the corporate secretary of Miami Kendall Estates, Inc., from 1980 to 1988. In the foregoing capacities, Bonduel executed the annual reports filed with the Florida Secretary of State for each corporation as follows: South Florida Properties, Inc. (1978-1983); West Miami Estates, Inc. (1979-1989); Miami Kendall Estates, Inc. (1980, 1982-1989); Miami Kendall West, Inc. (1982- 1987); Gateway Acres, Inc., and Maingate Acres, Inc. (1985-1989); M and L Management, Inc. (1987-1988); and Central Florida Estates, Inc. (1988-1989). South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., Central Florida Estates, Inc., and Mid- Florida Acres, Inc. have shared common offices and telephones, as follows: All of the corporations are or have been located at 633 N.E. 167th Street, North Miami Beach, Florida 33162, as follows: South Florida Properties, Inc.: Suite 519 (1978); Suite 1020 (1979); Suite 810 (1980-1983) West Miami Estates, Inc.: Suite 1020 (1979); Suite 810 (1980 to the present) Miami Kendall Estates, Inc., and Miami Kendall West, Inc.: Suite 810 (1981 to the present). Gateway Acres, Inc., and Maingate Acres, Inc.: Suite 810 (1985 to the present) M and L Management, Inc.: Suite 810 (1987 to the present). Mid-Florida Acres, Inc.: Suite 810 (1986 to the present). Central Florida Estates, Inc.: Suite 810 (1988 to the present). 2114 N.E. 182nd Street, North Miami Beach, Florida, was the personal address for Larry Lewis from 1979 through 1984; the personal address of Randy L. Landes, incorporator of Miami Kendall Estates, Inc., from 1979 through 1984; the personal address of Helen Lewis from 1984 through 1986; the corporate address of Miami Kendall Estates, Inc., in 1979 and 1980; and the corporate address of Maingate Acres, Inc., in 1984. 4927 S.W. 139th Court, Miami, Florida 33175 was the corporate address for Gateway Acres, Inc., in 1984 and for M and L Management, Inc., in 1985 and 1986. (305) 652-8523 was the telephone number given for the officer executing each of the annual reports listed below for the following corporations: West Miami Estates, Inc., and Miami (Kendall Estates, Inc. (1980-present); South Florida Properties, Inc. (1980-1983); Miami Kendall West, Inc. (1981-1987); Gateway Acres, Inc., and Maingate Acres, Inc. (1985-present); M and L Management, Inc. (1986-present); Central Florida Estates, Inc. (1988-present); Mid-Florida Acres, Inc. (1986). Mel Lewis, Larry Lewis, and Fay Lewis are authorized signers for the following corporate bank accounts with Executive National Bank, Miami, Dade County, Florida; each account opened on the indicated date: Miami Kendall West, Inc., Account Number 010-410-176-6-06, opened on October 12, 1982; Miami Kendall Estates, Inc., Account Number 010-410-179-0-06, opened on October 12, 1982; West Miami Estates, Inc., Account Number 010-410-177-4-06, opened on October 12, 1982. West Dade Acres, Inc., Account Number 010- 410-178-2-06, opened on October 12, 1982, with Cindy Morales listed as an additional signer; Gateway Acres, Inc., Account Number 101- 010-410-5354-06, opened on July 12, 1984; Maingate Acres, Inc., Account Number 010- 410-6350-06, opened on June 25, 1984. Mel Lewis, Larry Lewis, and Fay Lewis were the authorized signers for Skylake State Bank, Account Number 102-007-6, opened July 28, 1978, for West Miami Estates, Inc. Mel Lewis and Larry Lewis were the authorized signers for the bank account of South Florida Properties, Inc., at Skylake State Bank, Account Number 101-526-9. Julio Bercowicz executed agreements for deed as an authorized agent of Mid-Florida Acres, Inc. Julio Bercowicz was the original incorporator of Mid- Florida Acres, Inc., and was, at one time, the sole stockholder. He was president of Mid-Florida Acres, Inc., until at least March 17, 1986. The properties offered as West Miami Estates, Miami Kendall Estates, and Miami Kendall West share certain characteristics. All are located in the portion of the Everglades lying east of the Everglades National park. The parcels are typical Everglades wetland: primarily sawgrass prairie with occasional hardwood hammocks on slightly elevated areas and subject to seasonal flooding. Several of the small parcels comprising West Miami Estates, Miami Kendall Estates, and Miami Kendall West are located close together. One of the parcels sold as West Miami Estates and two of those sold as Miami Kendall West; are located within the one square mile of section 34, township 55 south, range 37 east, Dade County, Florida. A second parcel of West Miami Estates and the smaller parcel of Miami Kendall Estates are located in sections 33 and 35, respectively, township 55 south, range 37 east, on either side of the foregoing section 34. The parcels sold as Gateway Acres and Maingate Acres are contiguous and were formed from the single large parcel conveyed by Sand Hills Corporation to Melvin M. Lewis Licensed Real Estate Broker, Inc., on March 30, 1984. The single parcel was divided into a total of seventy-six consecutively-numbered lots; lots 1-26, 40, and 41 were then apportioned to Maingate Acres and lots 27- 39 and 42-76 to Gateway Acres. On more than one occasion, when a lot in Gateway Acres or Maingate Acres was deeded, Melvin Lewis, individually, would convey the lot by warranty deed to the applicable corporation for nominal consideration (as shown by the documentary stamps affixed to each document). If the lot was in those apportioned to Gateway Acres, Inc., he would then execute a second warranty deed as corporate president, on the same date and before the same witnesses and notary, conveying the lot to the purchaser for substantial consideration. If the lot was in Maingate Acres, the warranty deed conveying the lot to the purchaser would be executed on the same day. Fay Lewis witnessed, and Mel Lewis witnessed and notarized, the execution of at least one warranty deed by Helen Lewis as president of Maingate Acres, Inc. Those parcels sold as Central Florida Estates and Mid-Florida Acres were created from a single 140-acre parcel, acquired by M and L Management, Inc., on January 6, 1986, from David Alan Siegel and Betti L. Siegel, comprising almost the entire northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida. On the same date, Melvin Lewis, as president of M and L Management, Inc., executed a warranty deed conveying to Kissimmee Hills, Inc., a 20-acre strip 2,640 feet long and 330 feet wide. This conveyance divided the single parcel conveyed by the Siegels into northern and southern portions. On January 7, 1986, Melvin Lewis, as president of M and L Management, Inc., executed a warranty deed conveying to Central Florida Estates, Inc., the remaining portion of the original parcel to the immediate south of the strip of property conveyed to Kissimmee Hills, Inc. Cindy Morales and Fay Lewis executed the deed as witnesses to the signature of Melvin Lewis. Mid-Florida Acres is comprised of the northern 60 acres remaining after 60 acres were conveyed to Central Florida Estates, Inc., and 20 acres to Kissimmee Hills, Inc. Identical or substantially identical form contracts were used to sell lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, and Central Florida Estates. The form of the contracts was also similar to the types of contracts used by many other people in the business of selling undeveloped real estate in Florida. Each sale was made by executing an unrecorded agreement for deed which reserved to the seller both the title and possession of the property until payment under the contract was complete. The use of agreements for deed is not an unusual practice in the business of selling undeveloped real estate in Florida. Purchasers of lots in South Florida Properties exchanged their lots for lots in Miami Kendall Estates, Miami Kendall West, West Dade Acres, or West Miami Estates. Melvin Lewis solicited people who had purchased lots from South Florida Properties, Inc., to exchange their lots for ones in West Miami Estates, Miami Kendall Estates, Miami Kendall West, or West Dade Acres. He subsequently sent letters to each of such purchasers verifying their discussions and providing the documents necessary for the exchange of lots. Casimir T. Brudzinski purchased lot 94-B in South Florida Properties by an agreement for deed executed by Melvin Lewis as president of South Florida Properties, Inc. After being solicited by Melvin Lewis to exchange his lot, Mr. Brudzinski agreed to exchange his lot for lot 7WD in West Dade Acres. Delbert D. Oldenburg purchased lot 126-D, South Florida Properties, by an agreement for deed executed by Melvin Lewis as president of South Florida Properties, Inc. After being solicited by Melvin Lewis to exchange his lot, Mr. Oldenburg agreed to exchange his lot for lot 43WDA in West Dade Acres, which exchange agreement was countersigned by Melvin Lewis. Ralph J. and Beryl G. Hanchin purchased lots 100A and 100B in South Florida Properties, making monthly payments to South Florida Properties, Inc. The Hanchins continued to make payments after October 1982, which payments were credited toward the purchase of lots 55A and 55B in Miami Kendall Estates. The following sales were made in each indicated parcel: at least 19 in West Miami Estates, 22 in Miami Kendall Estates, 19 in Miami Kendall West, 44 in Gateway Acres, (lots 38, 53, 67, 71 appear to have been resold due to purchaser default or refund), 24 in Maingate Acres, at least 15 in Central Florida Estates, and at least 43 in Mid-Florida Acres. None of the lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid- Florida Acres were sold as part of a reservation program approved by the Division pursuant to Section 498.024, Florida Statutes. West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc., are neither governments nor governmental agencies. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres, were not offered as cemetery lots or interests in cemetery lots. The offer or disposition of lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres was not registered with either the Florida Department of Banking and Finance or the United States Securities and Exchange Commission. Each offer or disposition of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres was for the actual sale of real property and not for the sale of a debt secured by a mortgage on real property. The sale price for each separate lot sold in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres did not exceed 50,000.00. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each offered or sold without any residential or commercial buildings. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each offered or sold without any obligation of the seller to construct a residential or commercial building thereof for the purchaser. No plat or series of plats describing each lot in South Florida Properties, West Dade Acres, West Miami Estates, Miami Kendall Estates, or Miami Kendall West, was recorded or accepted for recordation in the official records of Dade County, Florida, prior to any lot sales. No plat or series of plats describing each lot in Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres, was recorded or accepted for recordation in the official records of Osceola County, Florida, prior to any lot sales. The Division did not issue any order exempting West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres from the registration requirements of Chapter 498, Florida Statutes, prior to any lot sale or other disposition being made. The Division has not issued a valid order of registration for lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres pursuant to Chapter 498, Florida Statutes. No purchaser of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres received a current public offering statement which had been approved by the Division. No purchaser of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres received a synopsis or summary, approved by the Division, of the sales script used in conjunction with the long distance telephone solicitation of the lot purchaser. The Division has not approved a public offering statement for West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres. The Division has not approved a synopsis or summary of any long distance telephone solicitation sales script for West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres. Both Melvin Lewis and Larry Lewis were familiar with the subdivided land registration requirements of Chapter 493, Florida Statutes. West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each created to hold less than 50 lots in an attempt to avoid the registration requirements of Chapter 498. The physical characteristics of the parcels of land offered and sold by the Respondents made those parcels unacceptable for registration under Chapter 498. Rodney A. Lein purchased lot 73 in Miami Kendall West on July 13, 1980, after a telephone call from Larry Lewis in which Larry Lewis offered Mr. Lein "income property" on land slated for development. In the conversation, Larry Lewis guaranteed he could resell the land at a profit within 3 to 4years. After the call, but before the purchase, Mr. Lein traveled to Miami to inspect the property. Larry Lewis took him to the end of west Kendall Drive in Dade County, Florida. Larry Lewis said the property offered was some 2 1/2 to 3 miles to the west of the pavement's end, but that Kendall Drive would be extended out past the property. Larry Lewis further said that as the urban area developed, the city would pay for extending such services as roads and water utilities to the property. Thomas Bezelik purchased lot 54 D, Miami Kendall Estates in January 1980 after a telephone solicitation in which the caller said the property would be a good investment and possibly purchased for industrial use. Bezelik was told an aerospace business was located close to the property he was being offered and was a potential purchaser of the site. Bezelik is still paying for the property. Robert Welch was solicited by telephone to purchase a lot in Central Florida Estates and was told the subdivision had been improved with paved streets and all utilities such as electricity, gas, telephone service, water, and sidewalks. He was further told the property would definitely appreciate in value. On the basis of this and other telephone conversations with the solicitor, Mr. Welch purchased lot 28 in Central Florida Estates. He subsequently spoke with Virginia Young by telephone, who identified herself as the president of Central Florida Estates, Inc., and affirmed the statements that had been made in soliciting him to purchase the property. She also stated Welch could redivide his 1 1/4-acre parcel into 4 lots. Eileen O. Gometz, together with her husband, since deceased, purchased a lot in West Miami Estates as a result of a telephone conversation with Larry Lewis. Larry Lewis said the property was suitable for building and would be developed within 3 to 4 years from purchase. Larry Lewis told her the property was close to a large commercial company but that the actual property itself would be home sites. At no time was she advised of the actual zoning or any rezoning of the property. Paul J. Matrullo purchased a lot in Gateway Acres after a telephone call from Larry Lewis in which Lewis assured him the property was good quality, "buildable land." Prior to his purchase, Mr. Matrullo visited the general area of the property with Larry Lewis. During the physical inspection, Lewis stated the land would be developed for residential housing or the State of Florida would purchase the property to develop a highway. Lewis further stated the property had been purchased by himself and his father, and the land was of such quality that it would double or triple in value within 12 months to 2 years. Larry Lewis gave no information specifically describing the zoning of the property. Primarily based on Lewis' representation that the property would double or triple in value within a 2-year period, Mr. Matrullo purchased lot 56 in Gateway Acres. He is currently paying for the property. William Somerset purchased lot 17 in Maingate Acres after receiving a telephone solicitation. He was told the intent of the offering was not to develop the land but to hold it as an investment for approximately 1 1/2 years and then sell it to developers. He purchased lot 17 because he was told the property would be quickly resold at a profit within "...perhaps a year and a half." He is still paying for the property. Similar sales methods were utilized in the marketing of the lots in all of the subject subdivisions. For example, solicitations for sales were made by telephone and prospective purchasers were told that they should purchase for investment purposes. Much of the land offered for sale by the Respondents was a poor investment at any price. The uses to which the property in sections 16 and 19, township 25 south, range 27 east in Osceola County, Florida, may be put are primarily agricultural. The minimum lot area is five acres and the density for residential development is one residence per five-acre lot. The purchasers of lots in Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres would not be permitted to build a separate structure on their individual lots; a minimum of four contiguous lots would have to be merged in order to create a parcel on which one residence could be built. The property purchased from Sand Hills Corporation and resold as Gateway Acres and Maingate Acres is entirely contained within the "Davenport Creek Swamp." The property is low, poorly drained, wet Florida swampland subject to periodic flooding. The single parcel sold as Central Florida Estates and Mid-Florida Acres, and in part conveyed to Kissimmee Hills, Inc., contains three distinct types of property. Roughly 45 percent of the tract is a "typical central Florida grass pond." During periods of dry weather portions of the pond dry up, but the property is subject to periodic flooding during the year. The second portion of the property is a "transitional zone" between the actual grass pond and potentially more usable land. The transitional property is low and poorly drained, again subject to occasional flooding. The smallest portion of the property, primarily found in the northern portion sold as Mid-Florida Acres, is sufficiently elevated and dry. No clear public access exists to either Gateway Acres or Maingate Acres. Access is obtained either by four-wheel drive vehicle or by foot. In soliciting purchasers for either Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres, Larry Lewis stated the offered real property was located in an area undergoing rapid growth and development. In fact, none of the parcels sold as West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres have been developed. Nor has West Kendall Drive in Miami, Florida, been extended westward to Lot 73, Miami Kendall West. Neither South Florida Properties, Inc., nor Melvin Lewis explained to the previous purchasers of South Florida Properties that the reason that they were being offered an exchange of their property was because South Florida Properties had been deeded back to the original mortgage holder in lieu of foreclosure. The lots offered for sale by the Respondents in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were all offered as part of a common promotional plan by Melvin Lewis and Larry Lewis, with the assistance of a few of their relatives, friends, and employees. In his various capacities described in paragraph 11 of these Findings of Fact, Melvin Lewis participated in the disposition of 143 lots of subdivided lands in Florida. In his various capacities described in paragraph 12 of these Findings of Fact, Larry Lewis participated in the disposition of 186 lots of subdivided lands in Florida. In her capacities described in paragraph 15 of these Findings of Fact, Virginia Young participated in the disposition of 15 lots of subdivided lands in Florida. In his capacities described in paragraph 19 of these Findings of Fact, Julio Bercowicz participate in the disposition of at least 2 lots of subdivided lands in Florida.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Division of Florida "Land Sales, Condominiums and Mobile Homes enter a final order in this case to the following effect: Finding each Respondent in these consolidated cases guilty of the violations charged in the respective Notices to Show Cause and Amended Notices to Show Cause. Melvin Lewis shall be ordered to pay to the Division civil penalties totaling One Million Four Hundred Forty Thousand Dollars ($1,440,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 143 dispositions of lots in which he participated. Larry Lewis shall be ordered to pay to the Division civil penalties totaling One Million Eight Hundred Seventy Thousand Dollars ($1,870,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 186 dispositions of lots in which he participated. Virginia Young shall be ordered to pay to the Division civil penalties totaling One Hundred Sixty Thousand 43 Dollars ($160,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 15 dispositions of lots in which she participated. Julio Bercowicz shall be ordered to pay to the Division civil penalties totaling Thirty Thousand Dollars ($30,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 2 dispositions of lots in which he participated. West Miami Estates, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Thousand Dollars ($200,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 19 dispositions of lots in which it participated. Miami Kendall Estates, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Thirty Thousand Dollars ($230,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 22 dispositions of lots in which it participated. Gateway Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Four Hundred Fifty Thousand Dollars ($450,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 44 dispositions of lots in which it participated. Maingate Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Fifty Thousand Dollars ($250,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 24 dispositions of lots in which it participated. Central Florida Estates, Inc., shall be ordered to pay to the Division civil penalties totaling One Hundred Sixty Thousand Dollars ($160,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 15 dispositions of lots in which it participated. Mid-Florida Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Four Hundred Forty Thousand Dollars ($440,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 43 dispositions of lots in which it participated. In addition to the civil penalties recited above, West Miami Estates, Inc., Miami Kendall Estates, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc., each shall be ordered to, under the supervision and approval of the Division, offer each purchaser of a lot from each respective corporation, the opportunity to rescind the purchase contact and receive a refund of all principal and interest paid in purchasing the lot. The offers of rescission and refund should be made to each purchaser. The offer to rescind shall be made within 60 days from the rendition of the final order by the Director of the Division. Those purchasers who elect to rescind their contract and receive a refund shall receive their payments no later than 90 days from the date they request their refund. The Division should impose such terms of compensation and require such security as will assure the maximum recovery by those purchasers selecting a refund, including, but not limited to requiring full disclosure of all facts material to the actual lot acquired by each respective purchaser, escrowing funds or posting bonds, or the appointment of a trustee or receiver to supervise the programs of rescission and refund whose fees are to be paid by the Respondents. Melvin Lewis and Larry Lewis shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against West Miami Estates Inc., Miami Kendall Estates, Inc., Gateway Acres, Inc., and Maingate Acres, Inc. Melvin Lewis, Larry Lewis, and Virginia Young shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against Central Florida Estates, Inc. Julio Bercowicz and Larry Lewis shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against Mid-Florida Acres, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989.
The Issue Whether Respondent acted as a broker or sales associate without being the holder of a valid and current broker or sales associate license, in violation of Subsection 475.42(1)(a), Florida Statutes (2004),1 and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes; and Whether Respondent published or caused to be published an advertisement for the sale of real properties, advertising himself to be a broker, at the time Respondent's license was in inactive status for failure to renew, in violation of Subsection 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Petitioner has jurisdiction over disciplinary proceedings for the Commission. Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. From April 18, 2002, through September 30, 2003, Respondent was an active sales associate in association with Caldwell Banker Residential Real Estate, Inc., a brokerage corporation located at 5981 Catheridge Avenue, Sarasota, Florida 34232. Respondent's Florida real estate sales associate license, number 95480, was involuntarily placed on inactive status due to non-renewal during the period October 1, 2003, through August 15, 2004. On or about February 22, 2004, Respondent published or caused to be published an advertisement for the sale of real properties with the South Florida Sun Sentinel, and in that advertisement, Respondent held himself out to be a realtor in the State of Florida, associated with Caldwell Banker. From August 16, 2004, through the present, upon the late renewal of his license, Respondent is listed as an inactive sales associate.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Subsections 475.42(1)(a), 475.25(1)(a), and 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025 and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint; suspending Respondent's license for a period of one year; fining Respondent the sum of $1,000; and requiring that Respondent pay fees pursuant to Subsection 455.227(3), Florida Statutes, for investigative costs, in the amount of $841.50. DONE AND ENTERED this 4th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 4th of December, 2006.
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $5,560.08 for limes grown by Petitioner and picked and sold by Respondent Southeast?
Findings Of Fact Petitioner Joyce McKiness is a grower of limes in Homestead, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the limes, then brings them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the limes pays Southeast after receipt of the limes, Southeast ascertains what prices were paid for the limes, and then calculates its costs and pays the grower the difference. Between the weeks ending March 4 and July 8, 1988, Southeast picked 1,165.1 bushels of limes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's limes picked by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the limes, the percentage of the limes picked by Southeast which `graded out' for sale, and the amount of picking and inspection fees charged by Southeast. Petitioner bases the price that she claims Southeast received for the limes, for the eight separate pickings in question in this cause, on her belief that 1988 lime prices were 25% higher than 1987 lime prices. She, therefore, added 25% to the prices of limes picked in 1987 for the same months. No competent, substantial evidence was offered in support of Petitioner's belief. In one instance, Southeast paid her a higher price per bushel than she claims. Petitioner claims that 80% of each picking was saleable citrus. Southeast's records reflect that Petitioner was given credit for 80% of her limes on one of the eight pickings. For the remainder of the pickings, however, Southeast gave her credit for as little as 45.4% of the bushels picked and as high as 99.7% of the bushels picked. No competent, substantial evidence was offered to justify Petitioner's selection of 80% for all eight pickings. The 80% figure selected by Petitioner allows for no differences in the amount of marketable limes from each picking, and there is no evidence to support the proposition that no matter when during the season the limes are picked exactly 80% of them will be marketable. No competent, substantial evidence was offered as to how Petitioner computed the picking and inspection fees paid by Southeast, which fees were then deducted by Southeast from the sale price of the limes before crediting Petitioner with the balance of the sale price. In two instances, the picking and inspection fees charged by Southeast were less than what Petitioner claims they should be. Southeast admits that for lime pool #809 for the week ending March 4, 1988, it owes petitioner the amount of $393.36.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Joyce McKiness in the amount of $393.36 and that such monies should be paid to her within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1990. LINDA M. RIGOT 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 30 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Joyce McKiness 20350 Southwest 346th Street Homestead, Florida 33034 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The issue in this case is whether Petitioners sold nursery plant materials to Respondent U.S. Lawns of Orlando, Inc. for which the latter did not pay.
Findings Of Fact On May 24, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 460 Juniper plants, for $731.40 including tax. The plants were picked up by U.S. Lawns employee Mark Rosetta. U.S. Lawns of Orlando, Inc. does not dispute the validity of the claim arising out of the May 24 sale. However, U.S. Lawns has never paid for these plant materials. On June 6, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 40 Juniper plants and 50 grass plants for $166.95 including tax. These plants were picked up by Jeffrey Miller, who was an employee of U.S. Lawns. U.S. Lawns disputes the validity of the June 6 sale. However, the owner of U.S. Lawns, Glen Jaffee, never responded to numerous telephone calls from Pen Smith of Jon's Nursery, Inc. concerning the unpaid invoices. Nor did anyone respond to a certified demand letter that Mr. Smith mailed to U.S. Lawns on August 29, 1990, or the numerous monthly statements reflecting the unpaid balances. An officer and employee of U.S. Lawns of Orlando, Inc., Pat Oyler, had ordered the plant materials by telephone from Jon's Nursery, Inc. Mr. Oyler had previously ordered plant materials on behalf of U.S. Lawns from Jon's Nursery, which had always been paid. On two occasions subsequent to the sales in question, Mr. Oyler ordered plant materials from Jon's Nursery, Inc. on behalf of U.S. Lawns, but paid for them with his personal check, and Mr. Smith told him that he would need, in such cases, to order the plants in his name. On May 31, 1990, Concepts in Greenery, Inc. sold U.S. Lawns ten 15-gallon crepe myrtles for $318 including tax. These items were picked up by Jeffrey Miller driving a U.S. Lawns truck. These plant materials had been ordered by Mr. Oyler of U.S. Lawns. Concepts in Greenery, Inc. had also previously done business with U.S. Lawns and been paid. In a sale which had taken place on March 25, 1990, Mr Oyler had ordered about $400 worth of plant materials on behalf of U.S. Lawns. Additionally, in its application for credit with Concepts in Greenery, Inc. dated April 11, 1988, Mr. Jaffee, as president of U.S. Lawns of Orlando, Inc., had certified that Mr. Oyler was vice president of U.S. Lawns of Orlando, Inc. Repeated telephone calls and monthly statements from Concepts in Greenery, Inc. to U.S. Lawns of Orlando, Inc., as well as a certified letter dated September 19, 1990, to Mr. Jaffee, were unsuccessful in obtaining any response whatsoever from the latter company. Spring Hill Nursery, Inc. made several sales of a variety of plant materials to U S. Lawns of Orlando, Inc. Including tax, these sales were as follows: March 13, 1990, for $131.18; March 26, 1990, for $544.05; April 5, 1990, for $12.24; April 6, 1990, for $90.10; April 17, 1990, for $593.60; April 18, 1990, for $55.65; and April 27, 1990, for $92.75. An eighth invoice dated June 4, 1990, for $581.15 has been excluded because it bears the names of Oyler Construction Company, Inc., Bentley Green, and Pat Oyler as the persons invoiced and nowhere mentions U.S. Lawns. The total of the seven sales to U.S. Lawns is $1519.57. Spring Hill Nursery, Inc. repeatedly tried to contact Mr. Jaffee and U.S. Lawns, including by letter dated August 27, 1990, but never received any response to its demand for payment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring U.S. Lawns of Orlando, Inc. to pay the above-indicated sums to the respective parties. DONE AND ENTERED this 9th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 9th day of April, 1991. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Department of Agriculture 515 Mayo Building Tallahassee, FL 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Pen Smith, Sales Manager Jon's Nursery, Inc. 24546 Nursery Way Eustis, FL 32726 Charles Brown, Nursery Manager Concepts in Greenery, Inc. 16366 Old Cheney Highway Orlando, FL 32833 David Rubright, President Spring Hill Nursery, Inc. 1921 Hill Drive Apopka, FL 32703 Glen Jaffee 612 Bryn Mawr Orlando, FL 32804 Bankers Insurance Company 10051 5th Street North St. Petersburg, FL 33702
The Issue This proceeding was initiated on June 27, 1985, when Petitioner filed its complaint for $51,680.00 with the Florida Department of Agriculture. Respondents were Dade Tomato and its surety, State Automobile Mutual Insurance Co. of Columbus, Ohio. After payment of $38,880.00 was received, Homestead Tomato reduced its claim to $12,800.00 in an amended complaint dated July 22, 1985. Dade Tomato responded with a timely request for formal hearing. The issue at hearing was whether $12.00 or $16.00 was the price per box of 5 x 7 tomatoes purchased by Dade Tomato from Homestead Tomato on January 13th and 21st, 1985. Homestead Tomato presented the testimony of two witnesses and nineteen exhibits; Dade Tomato presented seven witnesses and thirteen exhibits; State Automobile Insurance Company was noticed, but did not appear. Both parties submitted Proposed Findings of Fact and Conclusions of Law. These have been carefully considered in the preparation of this Recommended Order, and an outline of the adoption or rejection of each proposed finding is included in Appendix A, attached to, and incorporated in this order. A document styled Reply Brief of Petitioner Homestead Tomato Packing Company, Inc., was filed on January 9, 1986. It was not authorized and was not considered in the preparation of this Recommended Order.
Findings Of Fact Homestead Tomato is agent for Strano Farms of Florida City, Florida, a producer of tomatoes. Rosario Strano is president of Homestead Tomato and co-owner of Strano Farms. (R. Strano) Dade Tomato, a tomato repacking company, is located in Miami, Florida. Its president is Joe Lococo. It is licensed as a dealer in agricultural products and is bonded by State Automobile Mutual Insurance Company. (J. Lococo, Amended Complaint dated July 22, 1985) The week of January 20-26, 1985, was a memorable week for the Florida tomato industry: a savage freeze hit south Florida, crops were devastated and the market awoke from its earlier torpor. For days prior to the 20th, Rosario Strano had carefully watched the weather services. By the 15th, when the freeze forecast appeared to be a sure thing, Strano Farms worked night and day and into the weekend harvesting tomatoes. (T. Banks, R. Strano) On January 19th, a representative from Dade Tomato contacted Tom Banks, an employee of Homestead Tomato, and asked for a load (1600 boxes) of 6 x 7 tomatoes. Banks explained that they were ready to sell, but not ready to price, since they expected a high demand as a result of the impending freeze. It was established that the "following week's price would control." The load was shipped that same day. On Monday, the Dade Tomato called for another load the same size. Prices still had not been established, but the load was shipped, again the same day. (T. Banks) After the freeze, around the middle of the week, Rosario Strano called together Tom Banks and a few other key employees and established a price for their tomatoes: $20.00 box for 5 x 6 (largest) $18.00 box for 6 x 6 (next size down) $16.00 box for 6 x 7 (medium) $12.00 box for 7 x 7 (small) Banks was instructed that the buyers were to be notified the price was set. Anyone "booked in" didn't have to take the order or could back out. Strano wanted to be told immediately of any problems with the tomatoes on the other end, and he would take them back. He was confident that he had a good market for his unique, pre-freeze tomato supply. Several buyers backed out, some tomatoes did come back, but the entire supply was sold (approximately 40-48 loads). (T. Banks. R. Streno) In setting his prices for the week of the freeze, Strano obtained information from the Florida Fruit and Vegetable Report, a daily publication of the U.S. Department of Agriculture and the Florida Department of Agriculture and Consumer Services, out of Winter Park, Florida. (R. Strano) The sheets include price quotations for a wide variety of commodities in different parts of the state obtained by telephone survey of packing houses and producers the prior date. (Petitioner's Exhibits #15-19) It is a guideline rather than an "official" market price indicator. (J. Strother, R. Cohen) In some eases the prices quoted to the survey are later adjusted by the producer. (R. Cohen) The issue dated January 24, 1985, reflected for #1 quality tomatoes a price of $20.00, $18.00 and $16.00 for 5 x6, 6 x 6, and 6 x 75 respectively. The following two days showed the same. Prior days, January 22 and 23 quoted no prices but stated "practically all sales prices to be established later". (Petitioner's Exhibits #15-19) After hearing the prices established by Strano, some of his customers, including Joe Lococo and his broker, began to protest. (T. Banks, J. Lococo) While refusing to budge, end arguing that he was charging the same price to his other customers for his pre-freeze, quality tomatoes, Strano resorted to offering rebates of 2.00 a box for prompt payment and, later, for settlement of cases that otherwise would have gone to court. (T. Banks) In short, Strano had difficulty getting some of his customers to pay the price he had set. Not all of Strano's customers bought and had tomatoes shipped on a price to be settled basis. Of the ten invoices admitted as Petitioner's Exhibits #5- 14, three represented sales on the same basis as the sales to Dade Tomato: Exhibits 5, 6 and 7. The remaining invoices represented sales to customers who had the price established prior to sale. Each of the invoices reflect the price of a box of 5 x 7 tomatoes to be $15.00. The invoices do not reveal which may have received the $2.00 rebate. Dade Tomato purchased ten loads of tomatoes during the week of the freeze. With the exception of the two loads from Homestead Tomato, the highest price for 6 x 75 was $12.00. Most of the tomatoes picked prior to the freeze were priced from $10- 12.00, with tomatoes picked after the freeze (salvage) going for as low as $6.00 for 6 x 7s. (J. Lococo, Respondent's Exhibits #1- 12) "Market price" is a highly fluid, highly subjective standard. During the course of a tomato season from 25-30% of sales are made on a "market price" basis, that is, the parties do not establish a firm price prior to sale, but wait to see what the market does. The market can be settled in a few days in a normal condition or longer in an abnormal condition, such as after a freeze. Market relates to supply and demand. A price is tried, then accepted or rejected, depending on whether the buyer in turn can find a market to sell at this price. Failure by a seller to adjust downward, or overpricing can result in animosity and the refusal of customers later to purchase at reasonable prices in a different season. (J. Strother, R. Cohen, F. Campisi) Various agents and brokers testified at the hearing on behalf of Dade Tomato as to what they felt was the market during the week of January 20-26th, 1985. James Strother, with thirty- three years in the produce business, came out that week with prices of $16.00, $14.00 and $12.00, and $16.00, $15.00 and $12.00, with $12.00 for the 6 x 75. He told his customers, "You're looking at the low and I expect to get paid for it." He had heard rumblings of a higher market, but set his market price to insure that he would get paid, and he moved his tomatoes. While he avowed respect for Strano, he testified that their thoughts on the market that week differed. He knew others were quoting higher than $12.00, he just wanted to be sure he sold. Florida Tomato Packers, Inc., is one of the largest packers in Florida. They initially sold 6 x 7 tomatoes during the freeze market at $16.00, but later adjusted the invoices down to $12.00. (D. Holden, Respondent's Exhibit #1) No one explained exactly how or why this was done by Florida Tomato Packers. Other exhibits produced by Respondent showed adjustments downward to varying prices. (Respondent's Exhibits # 7 and 8) After the initial complaint was filed by Homestead Tomato, Lococo made two payments for a total which amounts to $12.00 a box, the level which he insists the proper price should be. He does not dispute the quality or condition of the tomatoes sold by Homestead Tomato. (J. Lococo)
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby RECOMMENDED: That a Final Order be entered requiring that the balance of $12,800.00 be paid by Dade Tomato to Homestead Tomato. In the absence of payment, Co-Respondent, State Automobile Insurance Company, should be required to pay said sum in accordance with Section 604.21(8), Florida Statutes. DONE and ORDERED this 15th day of January, 1986, in MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3487A The following constitutes my specific rulings pursuant to Section 120.59(2) Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Submitted by the Petitioner Adopted in paragraph 1, Findings of Fact. Adopted in paragraph 2, Findings of Fact. Adopted in paragraph 3, Findings of Fact. Adopted in substance in paragraph 4, Findings of Fact. Adopted in paragraph 4, Findings of Fact. Adopted in paragraph 4, Findings of Fact. Adopted in paragraph 3, Findings of Fact. Adopted in paragraph 3, Findings of Fact. Adopted in paragraph 5, except that instead of a set number of loads of tomatoes sold, the testimony of R. Strano was a range from forty to forty-eight loads. Adopted in paragraph 5, Findings of Fact. Adopted in substance in paragraph 7. The names of the buyers and total amounts of each purchase are immaterial. Adopted in paragraph 6, Findings of Fact. The substance of this paragraph relating to Florida Tomato Packers, Inc., is adopted in paragraph 10, Findings of Fact. The sentence relating to the market price is incorporated in essence in paragraph 5, Conclusions of Law. These facts are covered in the "Issues and Procedural Matters" preceding the Findings of Fact, and in paragraph 11, Findings of Fact. The substance of this paragraph relating to when the market settles is adopted in paragraph 9, Findings of Fact. The bias of witnesses who testified as to when the market settled is irrelevant as the time that the market settled is irrelevant. The statement that " Respondent agrees that the contract for the tomatoes was at a price to be established during the week of January 21-26 1985' . . . " is not supported by competent substantial evidence. Adopted in substance in paragraph 10, Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Respondent The first sentence is adopted in paragraph 4, Findings of Fact. The second sentence is substantially modified in paragraph 4 by a finding that the agreement was that the following week's price would control". Same as paragraph 1, above. Adopted in substance in paragraph 5, Findings of Fact. Adopted in paragraph 7, Findings of Fact. Adopted in paragraph 11, Findings of Fact. Adopted in paragraph 5, Findings of Fact. The second sentence, relating to all of the sales at $16.00 as being a set price, is rejected as contrary to the weight of the evidence. The remaining sentences are adopted in paragraphs 5 and 7, Findings of Fact. Partially adopted in paragraph 8, Findings of Fact. The basis of the price paid is immaterial. Adopted in paragraph 10, Findings of Fact. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. Rejected as a misconstruction of the testimony. James Strother testified that his price was 12.00 a box. Adopted in paragraph 6, Findings of Fact. 14 - 16. The substance of these paragraphs have been adopted. However, they are presented here as simply testimony of witnesses rather than findings of fact. The "market price" description is rejected for reasons set out in paragraph 4, Conclusions of Law. Adopted in paragraph 11, Findings of Fact. COPIES FURNISHED: David V. Lococo, Esquire LOCOCO, KLEIN, TOUBY & SMITH 901 Northeast 125th Street Suite C North Miami, Florida 33161 Joe W. Kight, Chief Bureau of License and Bond Florida Department of Agriculture and Consumer Services Room 416 - Mayo Building Tallahassee, Florida 32301 Ron Weaver, Esquire Florida Department of Agriculture and Consumer Services Mayo Building, Tallahassee, Florida 32301 State Automobile Insurance Company 515 E. Broad Street Columbus, Ohio 43216 Alexander Pires, Esquire SCOTT, HARRISON and McLEOD 2501 M. Street N.W. Suite 400 Washington, D.C. 20037 Robert Chastain, Esquire Department of Agriculture and Consumer Services Room 513 - The Mayo Building Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
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
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent committed a Class II violation as alleged in the Administrative Complaint, by failing to perform cardiopulmonary resuscitation (“CPR”) on a resident at its facility.
Findings Of Fact The undersigned makes the following findings of relevant and material fact: Joint Statement of Admitted Facts Filed by the Parties on February 19, 2021 The Agency completed a complaint survey of Pelican Garden on or about December 4, 2020. The Agency is the regulatory authority responsible for licensure of assisted living facilities (“ALF”) and enforcement of applicable state statutes and rules governing ALFs pursuant to chapters 429, Part I, and 408, Part II, Florida Statutes, and Florida Administrative Code Chapter 59A-36. Pelican Garden was, at all times material hereto, an ALF under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. The Agency’s surveyor cited Pelican Garden with a Class II deficient practice on or about December 4, 2020. On or about July 24, 2019, R #1 was a resident at Pelican Garden’s facility. Pelican Garden’s procedure for honoring a resident’s Do Not Resuscitate (“DNR”) Order includes circling the “DNR” located on the face sheet (information sheet) if a copy of the DNR is received and is on file at the facility. Pelican Garden’s admission paperwork includes a “Memo” initialed by the resident or representative to acknowledge that the facility has requested a copy of the resident’s DNR Order, if one exists. Pelican Garden’s DNR policy requires that a resident or representative provide the facility with a copy of a DNR Order on yellow paper, and then the facility files the order and places the resident on the Do Not Resuscitate Order (“DNRO”) list. Pelican Garden’s DNR policy requires that if a resident has a DNR on file, the facility will place a “butterfly” on the back of the resident’s door in their room with the resident name on the butterfly to notify staff to not perform life saving measures including but not limited to CPR. R #1’s executed contract, dated November 2, 2018, revealed a DNR form was requested from the resident’s representative as shown by the representative’s initials on the DNR policy and procedure page. R #1’s resident face sheet (Information Sheet), dated November 2, 2018, did not have a circled DNR Order, indicating that the resident did not have a DNR on the date of R #1’s death. R #1 did not have a DNR Order on file with Respondent on the date of R #1’s death. On or about July 24, 2019, at approximately 7:24 a.m., R #1 was found unresponsive in the resident’s room, with half of the resident’s body off the side of the bed with her legs on the ground and her head between the grab bar (removeable side rail) and the mattress, by Pelican Garden’s staff members “A,” “B,” “C,” and “D.” On or about July 24, 2019, Pelican Garden’s staff member “C” was instructed by staff member “A” to take R #1’s roommate to the bathroom and then leave the room with the roommate. On or about July 24, 2019, at approximately 7:24 a.m., Pelican Garden’s staff members “A,” “B,” and “D” worked to reposition R #1 to begin performing CPR and staff member “A” checked the resident’s pulse, observed the resident was pale and the resident’s skin was cold to the touch and made the determination that the resident had already passed. On or about July 24, 2019, Pelican Garden’s staff member “D” helped reposition R #1 and then left the room. On or about July 24, 2019, Pelican Garden’s staff member “D” was certified in CPR. On or about July 24, 2019, Pelican Garden’s staff members “A,” “B,” “C,” or “D” did not perform CPR on R #1. On or about July 24, 2019, at approximately 7:36 a.m., Pelican Garden’s staff member “A” dialed 911 at approximately 7:38 a.m. and, at approximately 7:39 a.m., stated it’s too late for CPR for R #1. On or about July 24, 2019, at approximately 7:39 a.m., Pelican Garden’s staff member “A” called Pelican Garden’s Administrator who instructed staff member “A” not to administer CPR to R #1. On or about July 24, 2019, at approximately 7:39 a.m., Pelican Garden’s Administrator had no firsthand knowledge of the condition of R #1. On or about July 24, 2019, at approximately 7:42 a.m., the Emergency Medical Services (“EMS”) arrived at Pelican Garden’s facility. On or about June 24, 2019, at approximately 7:45 a.m., the Emergency Medical Technician (“EMT”) pronounced R #1 as dead. Pelican Garden’s staff member “A” received a basic life support CPR and automated external defibrillator (“AED”) certification dated October 5, 2017, with an expiration date of October 2019. Pelican Garden’s staff member “A” was certified to perform CPR at the time of R #1’s death. Pelican Garden submitted a Plan of Correction dated January 22, 2020. Before, during, and after July 24, 2019, Pelican Garden’s policy to respond to an unresponsive resident without a DNR was to start CPR. Pelican Garden retrained staff on the response to an unresponsive resident without a DNR after the December 4, 2019, AHCA survey. On or about July 24, 2019, to December 4, 2019, Pelican Garden had more than one resident who did not have a DNR. Other Material Facts Established at the Hearing Dalia Portugal (“Portugal”) had worked at Pelican Garden for eight years. Marie Andre (“Andre”) is a home health aide. She has worked as a caregiver at ALFs for more than a decade. Mimose Francois (“Francois”) is also a home health aide. Francois had been a caregiver at another facility for 13 years. On July 24, 2019, when Portugal first arrived at work, there had been a shift change of staff at 7:00 a.m. This incident involved a 96-year-old resident at Pelican Gardens ALF. The resident, R #1, had moved into the facility at Pelican Garden in November 2018. The documents revealed that she suffered from a variety of ailments and diseases including: dementia, hypertension, high cholesterol, gastro reflux disease, was a fall risk, had macular degeneration, and was hard of hearing. Pet. Ex.14, at 14b. Shortly after her arrival, at approximately 7:22 a.m., Portugal took a call from R #1’s roommate. She advised her that R #1 was on the floor and she didn’t know how long she had been on the floor. At 7:24 a.m., Pelican Garden’s staff members Portugal, Andre, Francois, and Kerri Conklin arrived at R #1’s room and found her unresponsive. She was positioned with half of her body off the side of her bed. Her legs were on the ground and her head was positioned between the horizontal bedrail and the mattress. Together, Portugal, Andre, and Francois took hold of R #1 and worked to reposition her up on to her bed in an effort to begin performing CPR. Immediately after getting her on the bed the staff made several close observations of R #1. One staff member, Francois, testified that R #1 had no pulse, was pale, was not breathing, her face was smashed, and her body temperature was cold--“cold like ice.” Portugal made similar observations. She stated that R #1’s body temperature was cold--freezing cold--she had no pulse, was pale, not breathing, her nose was tilted to one side, and there was blood on the bed. The other staff member who responded, Andre, testified in a similar fashion. She added that R #1’s face was “smooshed.” After placing her on the bed, Andre said no CPR was conducted because “she was already dead.” When Portugal, Andre, and Francois repositioned R #1 on the bed in order to start CPR, they were unable to lay R #1 flat because her legs were stiff and stuck in the bed side kneeling position in which they found her. The photographs admitted as part of Respondent’s Exhibit A were insightful and provided compelling evidence that when the staff discovered R #1 she was already dead.2 The evidence was overwhelming and without serious dispute that R #1 was dead when she was discovered by the staff on the morning of July 24, 2019. During the course of the hearing the parties and witnesses frequently used the term “unresponsive” to describe R #1’s condition when she was discovered. However, the common understanding and plain meaning of this term in a medical emergency context implies an individual who may be in 2 The photographs also supported the testimony of the aides concerning the condition in which they found R #1. medical distress, but is revivable, i.e., one who does not respond to questions, touch, or neurological or sensory stimulation. Sadly, however, R #1’s cold, pale, lifeless, and stiff body was more than just “unresponsive” when she was first discovered by the staff. The facts, and reasonable inferences from the facts, established that she could not have been revived. She was lifeless and dead. Additionally, the reasonable inferences from the location where she was found, the medical problems she had, and the fact that she had been observed sleeping in bed during a 5:23 a.m. bed check indicate that she had gotten out of bed, attempted to walk somewhere in the room, had fallen near her bed, and severely injured her face during the fall. Resp. Ex. 14, at 14D. She had been dead on the floor long enough when the staff discovered her to cause her body to go cold and begin to stiffen. The clear and convincing evidence established that she was dead and unrevivable when she was discovered by the staff at 7:24 a.m. No amount of cardiopulmonary resuscitation would have revived or aided R #1. Such efforts would have been futile, pointless, and of no use. After the staff called 911 and the facility administrator, EMS arrived at Pelican Garden at approximately 7:42 a.m. Notably, even the EMTs did not attempt to perform CPR on R #1. Approximately three minutes after arriving, the EMTs pronounced R #1 dead. Law enforcement arrived shortly after the EMTs and conducted an investigation. The officers questioned Pelican Garden staff and took several photos of R #1 as she appeared after Pelican Garden staff repositioned her on her bed. The officers noted “a large amount of bloody purge” coming from R #1’s mouth on the right side of the bed, and a small amount of bloody purge on the pillows and the bed on the left side of R #1’s head. Resp. Ex. A at 8.3 After receiving Pelican Garden’s report detailing the circumstances surrounding the death of R #1, the Agency conducted its own survey of the facility on December 4, 2019. The AHCA surveyor spoke to Portugal and Conklin. The AHCA surveyor spoke with R #1’s physician and learned that R #1 had died of a heart attack. The surveyor also spoke with someone at the Medical Examiner’s Office and learned that no autopsy had been performed. The AHCA surveyor did not speak with the EMTs or the police officers that responded to Pelican Garden. The AHCA surveyor completed the investigation and cited Pelican Garden for violating R #1’s resident’s rights by failing to perform CPR when R #1 was found “unresponsive” since R #1 did not have a DNR in place. According to the AHCA surveyor, there are circumstances where it would be inappropriate or unnecessary to perform CPR on a resident who was found unresponsive. Specifically, when staff cannot get to the resident or position the resident for some reason. The surveyor also agreed with counsel that it “wouldn’t make sense” to perform CPR on a resident who, for example, was found decapitated. AHCA’s professional witness, Michelle Dillehay (“Dillehay”), is a nurse consultant employed by AHCA. She was questioned about the general obligation to perform CPR when an individual is found unresponsive and does not have a DNR in place. 3 The contents of the Sebastian police report and photographs are reliable, relevant, and supplement or explain other evidence. As a result, they were admitted and have been considered by the undersigned. See generally §§ 120.569(2)(g) and 120.57(1)(c), Fla. Stat. In her opinion, based on the application of recognized standards within the community, CPR must be initiated on an “unresponsive” individual except in limited circumstances not applicable to this case. She was not questioned, however, using hypothetical questions about the specific circumstances of this case. Likewise, the undersigned was unable to conclude that she was knowledgeable about R #1’s pre-existing medical problems or physical condition, or her appearance at the time of her discovery, or when she was photographed by the police on the bed. More to the point, there was no persuasive evidence that Dillehay had seen or reviewed the police report or pictures of R #1 taken by the Sebastian Police Department. Resp. Ex. A. In short, Dillehay gave a broad opinion without being specifically or thoroughly questioned or briefed about the unique circumstances of this case, or how that might affect her view of the actions taken by the Pelican Garden staff on July 24, 2019. The scope of her opinion was limited and not necessarily specific to the facts of this case. She opined that in those instances where a person does not have a DNR, they must be given CPR when found in an unresponsive state. She went so far as to state that CPR must be initiated even on a dead person. While her testimony was instructive in a very general sense and no doubt sincere, the undersigned affords little weight to it because a broad application of the CPR/DNR requirement explained by Dillehay cannot, or should not, be applied in all cases--especially when a person is discovered dead and in a stiffened, cold, and lifeless state with no pulse or respiration. Otherwise, such a requirement would be unreasonable and lead to absurd results. To the extent Dillehay’s opinion means or suggests that the Pelican Garden staff was required to initiate CPR on R #1 under the facts of this case, it is rejected as unsupported by a reasonable and correct interpretation of the law. Further, it is up to the undersigned to determine the weight and credibility given to an expert’s testimony. Behm v. Div. of Admin., State Dept. of Transp. 336 So. 2d 579 (Fla. 1976).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that due to the unique circumstances of this particular case the Agency dismiss the Administrative Complaint filed against Pelican Garden and find that no violation occurred. DONE AND ENTERED this 19th day of May, 2021, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2021. COPIES FURNISHED: Dwight Oneal Slater, Esquire Cohn Slater, P.A. 3689 Coolidge Court, Unit 3 Tallahassee, Florida 32311 Gisela Iglesias, Esquire Agency for Health Care Administration 525 Lake Mirror Drive North, Suite 330B St. Petersburg, Florida 33701 Richard J. Shoop, Agency Clerk Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Simone Marstiller, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Elizabeth Anne Hathaway DeMarco Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330C St. Petersburg, Florida 33701 Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 James D. Varnado, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Shena L. Grantham, Esquire Agency for Healthcare Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Petitioner was employed by Respondent and supervised by Frank J. Alogna, Park Manager at Ravine State Gardens at Palatka, Florida. Petitioner signed an acknowledgment receipt indicating that: (a) he had received an Employee Handbook; (b) it was his responsibility to review the Handbook; and (c) he was to request clarification, if needed, from his supervisor. Petitioner knew, or should have known, since the Handbook explained job abandonment, that unauthorized leave of absence could result in the loss of his job through abandonment. Petitioner was absent without leave on January 14, 15, and 16, 1987. Respondent's regular days off were January 17 and 18, 1987. January 19, 1987 was a paid holiday. Respondent was absent without leave again on January 20 and 21, 1987. Petitioner's last day of work was January 11, 1987 since January 12 and 13, 1987 were Petitioner's regular days off. Respondent tried on several occasions to reach Petitioner, but was unable to do so. At 7:00 p.m. on January 21, 1987 Petitioner telephoned Alogna but had no satisfactory explanation for his unauthorized leave. During this telephonic conversation on January 21, 1987, Petitioner was informed by Alogna that he was considered to have abandoned his position and to have resigned from the Career Service. Respondent formally advised Petitioner of this decision by letter dated January 23, 1987 which was hand delivered to the Petitioner on February 12, 1987 after Petitioner failed to claim the letter sent by certified mail through the post office. At no time relevant to this proceeding was any type of leave requested by Petitioner, or granted by Respondent. Although Petitioner was notified by regular U.S Mail of the date, place, and time of the formal hearing, Petitioner failed to appear. Petitioner lived approximately one (1) block from the entrance of Ravine State Gardens where he worked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a Final Order be entered deeming the Petitioner to have abandoned his position and to have resigned from the Career Service. Respectfully submitted and entered this 10th day of September, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1236 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner did not submit any Proposed Findings of Fact or Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 1. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 3. COPIES FURNISHED: Ed Pantaleon, Esquire Asst. Gen. Counsel Dept. of Natural Resources 3900 Commonwealth Blvd. Tallahassee, Florida 32303 Raymond W. Johnston Route 3., Box 4655 Palatka, Florida 32034 Pamela Miles, Esquire Dept. of Admin. 435 Carlton Bldg. Tallahassee, Florida 32399-1550 Adis Vila, Secretary Dept. of Administration 435 Carlton Bldg. Tallahassee, Florida 32399-1550 Augustus D. Aikens, Gen. Counsel Dept. of Admin. 435 Carlton Bldg. Tallahassee, Florida 32399-1550 Tom Gardner, Executive Dir. Dept. of Natural Resources 3900 Commonwealth Bldg. Tallahassee, Florida 32303
