The Issue Whether Respondent violated subsection 760.10(1), Florida Statutes by denying Petitioner a promotion on account of his race and color.
Findings Of Fact Henry E. Tate is a forty-nine year old black male who has worked at the Kennedy Space Center (KSC) since April 12, 1965. (tr-10, 11) From 1965 until the present, a series of civilian contractors have had agreements with the National Aeronautics and Space Administration (NASA) to perform logistical and housekeeping duties at KSC. These included Transworld Airline, the Boeing Company and Expedient Services, Inc. (tr-34) In January 1983, EG & G Florida, Inc., (EG&G) assumed the master base contract for logistics and housekeeping, but it was not until July 1983 that it took over operational control of the roads and grounds department. EG & G employs in excess of fifteen persons. (tr-101, 102, Exhibit number 11) Except for three or four months in the early 1970's when he worked in the mechanic shop, Mr. Tate was employed in the roads and grounds department steadily from 1965. As each successor contractor took over he applied for, and was hired for the same job. This included EG & G in July 1983. (tr-11, 13, 34) His current title is lead labor operator- pest control and he makes $10.16, plus $.75 lead pay, per hour. (tr-11) Mr. Tate's duties in the roads and grounds department have included pesticide and herbicide spraying of the grounds and buildings, and all aspects of weed, insect and pest control, both indoors and out. At different times he has driven dump trucks and operated forklifts, locals and trailer trucks. (tr-ll, 12, Exhibit number 15) In 1971, Mr. Tate was made "lead" over pest control, herbiciding and sanitation. In that capacity he worked directly under a supervisor who gave him instructions as to the work to be performed. He would then take his people and get the work done. Afterwards he would report back on the results. (tr-51, 56, 57, Exhibit 115) He has remained a lead worker since that time; even though the formal title was abolished in 1984, the pay differential remains. (tr-152) The rationale for the higher pay is that leads assign work to crews which vary commonly from two to eight people. Leads order material and perform some, administrative tasks in conjunction with the functions of their job classification. (tr-153) At varying times Mr. Tate has served as lead over one to ten persons. He is currently lead over a crew of six. (tr-13, 14, 36, 49, 266, 267) During the period of the TWA contract, Mr. Tate filled in as acting supervisor when his supervisor was on vacation. (tr-47) In November 1983, EG & G posted a job listing for the position of Supervisor, Roads and Grounds Department. The job posting number 1125 required a high school diploma, five years supervisory experience in the assigned area of responsibility and a State of Florida restricted pesticide license. (Exhibit number 1) Mr. Tate applied for the job. He has a high school education and felt that his long experience in the field and his lead experience qualified him. His supervisor vacating the job also thought Mr. Tate was qualified and would be hired. (tr-60) Mr. Tate was not interviewed for job posting number 1125; nor were the two other internal applicants who were also black. (tr-18, 275, 276) Instead a white male was hired. That individual, Ted Bender, had an associate degree in business administration, some supervisory experience and the required pesticide license. (Exhibit number 13) Mr. Tate was informed of the posting result by a form dated November 8, 1983. The basis for his non-selection was checked, "meeting minimum qualifications", with an asterick and the hand-written notation, "Must have a restricted pesticide license in the State of Florida". No other basis was checked or noted. (exhibit number 2) At the time that he applied for job posting number 1125, Henry Tate had applied for his pesticide license but did not receive it until December 1983. He studied on his own, reading anything he could find on pest control, and took vacation time off to go to Gainesville to take the license exam. His current license expires October 31, 1987. (tr-15, 64, Joint Prehearing Stipulation) Ted Bender resigned in May 1938, and the vacancy was again posted. Job posting number 1331 stated a posting date of May 24, 1984 and a closing date of May 28, 1984. It differed from posting number 1125 in the requirement that the successful applicant get a restricted pesticide license within sixty days of position acceptance. The five years supervisory experience in assigned area of responsibility and high school diploma requirements remained the same. (Exhibit number 5) Henry Tate applied again and was interviewed on May 31, 1984, by Raymond Tuttle, who at that time was Manager of Roads and Grounds. At the end of the interview Mr. Tuttle filled out the company Interviewer's Report form with the following appraisal: Job qualifications are met if lead time is classified as supervisory experience. He has worked with pesticides for approximately 15 years on KSC. He has a working knowledge of pesticide application although he has no formal horticulture training. He has attended several extension service sponsored seminars over the past 15 years that covered pest control problems in our local area. He currently holds a valid state of Florida pesticide license. Mr. Tate seems willing to accept the responsibilities involved but would require some management skills training to aid in the performance of this position. (Exhibit number 15) He rated Mr. Tate "good" on a scale which ranged from "top" to "unsuitable"; he checked "Hold-Further Review" for the recommended action. (tr. 157, 164, Exhibit 15) During the interview he did not tell Mr. Tate there was a problem with his supervisory experience. (tr-23, 183) Raymond Tuttle also interviewed another internal candidate, William Deffendall. He noted on the Interviewer's Report that this candidate did not meet minimum qualifications. (Exhibit 14) After the interviews, Raymond Tuttle went to see Nancy King, who at that time was Supervisor of Employment at EG & G. He asked her whether lead time could be considered as supervisory experience and she did not have an answer. They both looked at the files and could not find anyone who had supervisory background or a restricted pesticide license. At that point they discussed advertising for external candidates and drafted the advertisement. (tr-185, 186, 205, 207, 208) Sometime later, after the first week in June, Nancy Ring asked Mr. Erikson in employment relations whether lead time could be used to meet the supervision requirement. He also had to check; and when he got back to Ms. King a few days later the answer was that EG & G had not used lead time in lieu of supervisory experience. (tr-232, 233, 234) Meanwhile, on June 4, 1984, Mr. Tate was given his posting result form: "You were not selected for this position due to:" *Other ". The handwritten explanation of "other" was "Other candidates are being considered." (Exhibit number 16) At that time there were no other candidates available to be considered as Messers. Tate and Deffendall were the only internal applicants; no candidates with applications on file met the minimum qualifications, and the advertisement for external candidates didn't run until June 12, 1984. (tr-191, 211) The advertisement that ran from June 12-June 17, 1984, differed materially from both job posting number 1331 and the position description for Supervisor, Roads and Grounds that was in effect at that time. The newspaper notice required not a high school degree, but a "B.S. in Agriculture", and 3-5 years experience in horticulture, entomology and supervision. The formal education requirement was therefore increased and the experience requirement was reduced from 5 years to "3-5 years". (Exhibit number 22) Ms. King admitted that the advertisement was not a formal upgrading of the job. (tr-237) More significantly, Raymond Tuttle admitted that they were not looking for someone with a Bachelor's degree but rather increased the requirements to keep out a flood of candidates. (tr-190) According to Ms. King, the company has a policy of substituting experience for educational requirements and the B.S. degree would not have excluded Mr. Tate. However, he was not told of this and there was no way that an individual reading the advertisement could surmise that. (tr-214, 238, 239) Four candidates responded to the advertisement and were interviewed; all were white. (tr-203) The first choice among those candidates was Richard Van Epp, rated "high" by Raymond Tuttle. Mr. Van Epp's application reveals solid experience in landscape work, including supervision, but nothing specific in entomology, a deficiency also noted on Raymond Tuttle's Interviewer's Report. (Exhibit number 17) Richard Van Epp was offered the job but turned it down. (tr-172) The second-choice candidate, Larry Gast, was hired effective July 24, 1984, with a salary offer of $13.50 per hour in a salary range of $9.94 (minimum), $12.64 (mid) and $15.34 (maximum). (Exhibit number 5) Mr. Gast was rated "high" by Raymond Tuttle with a notation on the Interviewer's Report that he met all requirements of this position. Mr. Gast's application reveals a B.S. degree from the University of Florida in 1980, with his major field in entomology. Prior to college he was in high school. The only job experiences listed on his resume and application are lab technician with the U.S. Department of Agriculture in Gainesville, from 11/79 to 3/81; and from 4/81- 6/84, production supervisor/entomologist with the U.S. Sugar Corporation in Clewiston, Florida. (Exhibit number 18) At the time that he was hired by EG & G Larry Gast had approximately three years and two months experience supervising others in a related field. This falls within the minimum required by the newspaper advertisement but falls short of the five years required by the job posting and position description. (Exhibit number 5) On July 23, 1584, Henry Tate was sent another posting result form, this time checked "Another candidate was selected." (Exhibit number 20) He was called into Mr. Tuttle's office and was told that a new supervisor was hired. He was told that pesticides were no problem, herbicides were no problem, but that Mr. Tuttle was "not comfortable" with his background in horticulture. Mr. Tuttle also told him that something might come along later. Mr. Tate replied that he had been in roads and grounds for almost 20 years and how much later was he supposed to wait. (tr-274) Henry Tate was never told that there was any problem with his lack of supervisory experience until the fact finding conference held before an investigator from the Florida Commission on Human Relations. (tr-32, 253, 273) Sometime after the fact finding conference, Earle Patrick, who was then EG&G's Equal Employment Opportunity, Supervisor, called Mr. Tate and asked why he had not applied for another Supervisor job posting. This posting also required supervisory experience and Mr. Tate quickly informed him that he had no more experience than when he applied for the first job. (tr-272) Earle Patrick's convoluted testimony explaining why the phone call was made ended with this exchange: Q. [by Mr. Betancourt] Well, did you think he was qualified for this position and had a shot at it? A. No, I didn't. Q. So you were calling him about a job he couldn't possibly get? A. That's right. (tr-261) When Larry Gast was initially hired he was Supervisor of Roads and Grounds in charge of grounds maintenance and pest control. He supervised approximately 29 individuals and had three leads. There was another Supervisor of Roads and Grounds in charge of road maintenance and sanitation services. The Roads and Grounds Department was reorganized in early 1985 to create three supervisors. Larry Gast became responsible for the bridgetenders and pest control and his staff was reduced to fifteen individuals, including one lead, Henry Tate. Nine of the staff are bridgetenders who never leave the bridge and do not require a lead. The remaining workers can be anywhere in an area 28 miles long and 14 miles wide. As lead, in the words of Larry Gast, Henry Tate is the "eyes in the field" for those workers. This organizational structure still exists. (tr-121, 123, 266, 267, 269, Exhibit number 11) The reorganization brought Larry Gast's position closer into line with the industry standard described by EG & G's Manager of Personnel Management, Stephen Mansfield. That standard says that supervisors should be able to handle six to eight people; anything more tends to stretch the supervisor thin; anything less would suggest that you may not need a supervisor. (tr-151,152) With 29 persons, Larry Gast concedes he was stretched very thin. (tr-270) Henry Tate was highly qualified for the position of Supervisor of Roads and Grounds, job posting number 1331. While EG & G had never counted lead time for supervisory experience in the past, the evidence strongly suggests that the issue simply never arose in the past. Various individuals in the employment office couldn't immediately answer when asked if lead time could be considered. Most supervisor positions do not require previous supervisory experience. (tr-136) At one point during another reorganization, approximately 16 leads were reclassified as supervisors. (tr-153, 156) The substantial weight of evidence supports a finding that EG &G did not consider Henry Tate unqualified: For job posting number 1125, he was told only that he lacked the restrictive pesticide license and he was not interviewed. He then got the required license. He was interviewed for job posting number 1331 and was not informed that there was a problem with his failure to meet minimum qualifications until well after the position was filled and the discrimination issue was raised. Neither job posting result forms so informed him, despite the fact that the form includes a line to be checked with regard to meeting minimum qualifications. Raymond Tuttle rated Tate a "good" candidate and put his application "on hold", both of which are inconsistent with a belief that the individual is unqualified. Earle Patrick's intent in calling Henry Tate about the new supervisory position could hardly be so perverse as he has contrived in his testimony. EG & G cannot legitimately claim that Mr. Tate's lack of supervisory experience was the basis for their rejection of his request for promotion. They commenced the solicitation of outside candidates well before the answer on lead time came back. (tr-210, 211, 233)`' While Henry Tate may have benefitted from some training to acquire polish as a supervisor, training is provided routinely by EG & G for all new, as well as old supervisors. (tr-244) The company espouses a policy of promoting from within.
The Issue The issue in this case is whether the Respondent, R & R Sod Contractors, Inc., owes the Petitioner for sod purchased from the Petitioner and, if so, the amount presently owed.
Findings Of Fact The Petitioner is in the business of raising and selling sod in the State of Florida. During the past few years, R & R has been a frequent customer of the Petitioner and has purchased large amounts of sod from the Petitioner. Prior to April of 1998, R & R had a credit account with the Petitioner. The terms of the credit agreement included the following: "In the event the account becomes delinquent, and will be referred to a licensed collection agency or an attorney, Customer agrees to pay all costs and expenses of collection including reasonable attorney's fees, court costs, and costs incurred on appeal." During April of 1998, R & R's account with the Petitioner became delinquent. The Petitioner referred the delinquent account to an attorney. The attorney filed a lawsuit against R & R and also filed a complaint with the Department to collect the delinquency by asserting a claim against the bond posted by R & R. The 1998 account delinquencies were resolved in December of 1998, when the Department issued a check to the Petitioner in the amount of $48,431.00. That check paid the full amount of all unpaid invoices from the Petitioner to R & R as of December of 1998. In the process of collecting the $48,431.00 debt from R & R during 1998, the Petitioner incurred costs and attorney's fees in the amount of $1,644.00. These costs and attorney's fees were in addition to the $48,431.00 debt that was paid by the check from the Department. In January of 1999, the Petitioner again began to sell sod to R & R, but only on a cash basis. In the latter part of February of 1999, R & R bought approximately $2,500.00 of sod from the Petitioner which they paid for with a $2,500.00 cashier's check payable to the Petitioner. Although the cashier's check was given to the Petitioner by R & R, the face of the cashier's check identified the remitter as "Ely Sod, Inc." 3/ At the time the Petitioner received the $2,500.00 cashier's check described above, the Petitioner had an unsatisfied judgment against Ely Sod, Inc. When the cashier's check first went through the Petitioner's bookkeeping system, it was treated as a payment by Ely Sod, Inc., to the Petitioner, and was applied to reduce the amount of the judgment owed by Ely Sod, Inc. Consequently, none of the $2,500.00 cashier's check was initially applied towards the amounts owed by R & R. The misapplication of the proceeds of the $2,500.00 cashier's check discussed above apparently produced a great deal of confusion between the Petitioner and R & R regarding the status of R & R's account with the Petitioner. In this regard the Petitioner was especially concerned about the fact that R & R, which was supposed to be on a "cash only" basis, appeared to be $2,500.00 in arrears in its payments to the Petitioner. During the course of resolving the issue of the misapplied cashier's check, the Petitioner became aware of the fact that R & R had never paid the Petitioner's costs and attorney's fees related to the 1998 litigation. Ultimately, it was agreed between the attorneys representing the Petitioner and R & R that the proceeds of the $2,500.00 cashier's check should be applied to pay the costs and attorneys fees in the amount of $1,644.00 incurred by the Petitioner in the 1998 litigation, and that the balance of $856.00 would be paid to R & R or would be applied to any outstanding debts of R & R. Consistent with the agreement, $1,644.00 was applied to pay the Petitioner's costs and attorneys fees, and $856.00 was applied towards the unpaid amounts owed by R & R for sod purchased from the Petitioner Review of the invoices, payments, and accounts between the Petitioner and R & R reveals that, after the agreed application of funds described in paragraph 7, above, R & R still owes the Petitioner the amount of $1,844.00 for sod purchased from the Petitioner. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that R & R is indebted to the Petitioner in the amount of $1,844.00; (2) directing R & R to make payment to the Petitioner in the amount of $1,844.00 within 15 days following the issuance of the order; and (3) announcing that if payment in full of this $1,844.00 indebtedness is not timely made, the Department will seek recovery from ICNA, R & R's surety. DONE AND ENTERED this 7th day of April, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2000.
The Issue Whether the Petitioner established that it is entitled to compensation pursuant to sections 604.15 through 604.34, Florida Statutes (2013).1/
Findings Of Fact The Petitioner grows and sells grass sod in the State of Florida, thus, meeting the statutory definition of a "producer of agricultural products."2/ Respondent is a licensed "dealer in agricultural products," as defined by chapter 604, Florida Statutes.3/ Sometime in November 2013, the Petitioner and American Sod entered into a verbal contract, where the Petitioner would furnish bahia grass sod for Respondent. The initial invoices for deliveries to American Sod on November 7, 8, 11 and 14, 2013, show that the Petitioner charged American Sod $0.055 for each sod square delivered. However, the price increased to $0.065 for each sod square on November 15, 17, 21, December 10, and 17, 2013, based on the agreement of the parties that the price would increase if American Sod failed to timely pay the invoices. Here, it is not disputed that American Sod failed to timely pay the Petitioner for its sod. The invoices and testimony show that the Petitioner charged American Sod for sod, as well as for deposits on the wooden pallets used for delivery of the sod. The total amount owed by American Sod is $4,378.92. Out of this total amount owed, the facts show that $3,016.92 is attributed to American Sod's failure to pay for the sod and $1,362.00 is for the pallets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, American Sod Services, Inc., pay the Petitioner, Other Side Sod Company, LLC, the sum of $3,016.92. It is further RECOMMENDED that if American Sod fails to timely pay the Petitioner, as ordered, that the Respondent, Auto-Owners Insurance Company, as surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 20th day of August, 2014, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2014.
The Issue The issue in this case is whether Respondents owe Petitioner $13,512.09 for watermelons, as alleged in the Amended Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Cook Brown Farms is a melon farm in Punta Gorda, Florida. At all times pertinent to this proceeding, Cook Brown Farms was a "producer" as defined in Subsection 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Melons come within the definition of "agricultural products" as defined in Subsection 604.15(3), Florida Statutes. J.G.L. Produce is a Florida Corporation, owned by John W. Johnson, Jr., and located in Pompano Beach, Florida. At times pertinent to this proceeding, J.G.L. Produce was licensed as a "dealer in agricultural products" as defined in Subsection 604.15(1), Florida Statutes. Andrew J. Cook, a principal owner of Cook Brown Farms, and Mr. Johnson of J.G.L. Produce entered into an oral agreement regarding the sale of watermelons grown at Cook Brown Farms. The core of this case is a dispute concerning the nature of this agreement. Mr. Cook testified that, under the agreement, J.G.L. Produce would purchase the melons at the farm at their daily market price, plus 1/2 cent to cover Cook Brown Farms' cost of picking, sorting, and placing the melons in special bins and in special pallets required by the ultimate purchaser, Kroger Supermarkets. J.G.L. Produce would provide the bins and pallets and would provide the trucks to ship the melons. Mr. Johnson testified that the agreement was not for purchase but for brokerage of the melons. J.G.L. Produce would act as broker of Cook Brown Farms' watermelons, use its best efforts to sell the melons at the highest price available, and pay Cook Brown Farms the proceeds of the sale, minus expenses and a brokerage fee of one cent per pound. Mr. Johnson testified that J.G.L. Produce never took title to or purchased the melons, and that the risk of loss always remained on Cook Brown Farms. Mr. Johnson testified that he approached Mr. Cook about the melons because he had a ready buyer in another local dealer, Delk Produce, which had a longstanding arrangement to provide melons to Kroger. Mr. Johnson agreed with Mr. Cook that the arrangement included the provision of bins and pallets by J.G.L. Produce, though Mr. Johnson stated that the arrangement also called for J.G.L. Produce to retain $0.015 per pound from the amount paid to Cook Brown Farms to cover the cost of the bins and pallets. J.G.L. Produce took approximately 24 truck loads of watermelons from Cook Brown Farms. J.G.L. Produce deducted a one cent per pound brokerage fee from each load of melons it took, except for certain loads noted below, without contemporaneous objection from Cook Brown Farms. The Amended Complaint claims that J.G.L. Produce owes money to Cook Brown Farms for five of the loads taken by J.G.L. Produce. In sum, the Amended Complaint states that J.G.L. Produce owes Cook Brown Farms $19,991.74 for the five loads, less $6,479.65 already paid, for a total owing of $13,512.09. Item One of the Amended Complaint alleges that J.G.L. Produce owes $4,438.54 for a load of 38,596 pounds at a price of $0.115 per pound, sold on April 20, 2000. Item Two of the Amended Complaint alleges that J.G.L. Produce owes $4,625.30 for a load of 40,220 pounds at a price of $0.115 per pound, sold on April 21, 2000. The Amended Complaint alleges that the melons on these two loads were inspected and approved for shipment during loading by Delk Produce employee Freddie Ellis. The Amended Complaint states that Cook Brown Farms was paid in full for the loads on May 3, 2000, but that the contested amounts were deducted from subsequent settlements by J.G.L. Produce. The evidence established that the melons claimed under Item One were initially sold to Delk Produce for delivery to Kroger. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $4,438.54, which constituted the price for 38,596 pounds of melons at $0.125 per pound, less $385.96 for the one cent per pound brokerage fee. Jay Delk, the principal of Delk Produce, testified that this load was rejected by Kroger's buyer in Virginia due to "freshness," meaning that the melons were unsuitably green. Mr. Delk stated that the melons were taken to North Carolina to ripen and eventually sold at $0.06 per pound. The final return on this load, less the brokerage fee, was $1,543.84. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $4,438.54 and the final payment of $1,543.84. The evidence established that the melons claimed under Item Two were initially sold to Delk Produce. On May 3, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $5,809.80, which constituted the price for 50,520 pounds of watermelons at $0.125 per pound, less $505.20 for the one cent per pound brokerage fee. Seminole Produce purchased 10,300 pounds of this load at $0.145 per pound, or $1,493.50. The remainder of the load was rejected by Kroger due to freshness and had to be resold at a lesser price of $0.0346 per pound, or $1,391.00. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $5,809.80 and the final payment (after deduction of the brokerage fee) of $2,576.11. The evidence established that the melons claimed under Item Three were sold to Delk Produce. On May 9, 2000, J.G.L. Produce paid Cook Brown Farms the amount of $2,731.30, which constituted the price for 42,020 pounds of watermelons at $0.0675 per pound, less $105.05 for the brokerage fee, reduced to $0.0025 per pound. Mr. Johnson testified that he decided to forego the full brokerage fee to save money for Mr. Cook and his farm, because it was "hurting" due to the rapidly plummeting price for watermelons. Mr. Johnson discovered at this time that Delk Produce had not been retaining the agreed- upon $0.015 per pound to cover the cost of bins and pallets and decided not to lose any more money on that item. In its final settlement with Cook Brown Farms on May 26, 2000, J.G.L. Produce deducted the difference between the original payment of $2,731.30 and $2,206.05, deducting $525.25 from the original payment to cover the cost of the bins and pallets. The evidence established that the melons claimed under Items Four and Five were originally shipped to Wal-Mart in Kentucky on April 29, 2000, and were rejected on the ground that the melons were not packed to specifications. The melons were trucked back to Florida at J.G.L. Produce's expense. The melons claimed under Item Four totaled 41,100 pounds. J.G.L. Produce divided the melons into four loads and sold them to four local dealers at an average price of $0.775 per pound, totaling $3,185.41. J.G.L. Produce deducted its $0.015 charge for bins and pallets, reducing the total to $2,671.51. J.G.L. Produce then deducted $1,750.00 from the total as reimbursement for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee. On May 26, 2000, J.G.L. Produce paid the remaining $921.51 to Cook Brown Farms as part of the final settlement. The melons claimed under Item Five totaled 45,600 pounds. J.G.L. Produce sold 2,426 pounds to Seminole Produce at $0.10 per pound, or $242.60. J.G.L. Produce sold the remaining 43,174 pounds to Belle Glade Produce at $0.065 per pound, or $2,800. From the total for Item Five, J.G.L. Produce deducted its $0.015 charge for bins and pallets and $1,950.00 for the freight charge it paid to bring the melons back to Florida after their rejection by Wal-Mart. J.G.L. Produce did not include a brokerage fee on this load of melons. On May 26, 2000, J.G.L. Produce paid the remaining $416.64 to Cook Brown Farms as part of the final settlement. The weight of the credible evidence, excluding the hearsay that was not supported by the direct testimony of Mr. Johnson, leads to the finding that there was a brokerage arrangement between the parties. J.G.L. Produce routinely deducted brokerage fees from its payments, without objection by Cook Brown Farms. This course of dealing strongly indicates a brokerage arrangement. Mr. Cook testified as to prior dealings with J.G.L. Produce, which also involved a brokerage arrangement. The evidence indicated that J.G.L. Produce fully accounted for the five loads of melons at issue, and paid Cook Brown Farms the full amounts due and owing for those loads.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order dismissing the Amended Complaint filed by Gin Brown Matthews, d/b/a Cook Brown Farms. DONE AND ENTERED this 21st day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001. COPIES FURNISHED: Redland Insurance Company 222 South 15th Street, Suite 600, North Omaha, Nebraska 65102 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 John W. Johnson, President Post Office Box 1123 Pompano Beach, Florida 33061 Harold M. Stevens, Esquire Post Office Drawer 1440 Fort Myers, Florida 33902 Edward L. Myrick, Jr., Esquire Beighley & Myrick, P.A. 1255 West Atlantic Boulevard Suite F-2 Pompano Beach, Florida 33069 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue for determination is whether Respondents owe Petitioner approximately $65 for one pallet of sod which Petitioner delivered to a third party building contractor's construction site at the instigation of Respondent.
Findings Of Fact Petitioner is a producer of agricultural products, grass sod, and Respondent Arsham & Associates, Inc., (Arsham), is a dealer of such products in the course of its normal landscaping business activity. Respondent Safeco Insurance Company is the bonding agent for Respondent Arsham pursuant to Section 604.20, Florida Statutes. Petitioner generally deals on a cash basis with customers, unless the customer is licensed by the Department of Agriculture and Consumer Services for the sale of agricultural or horticultural products. Customers, who are licensed, may maintain an open account status with Petitioner. Respondent Arsham was such a customer. For approximately two years, Respondent Arsham and Petitioner enjoyed a relationship whereby Petitioner sold Respondent Arsham grass sod for various projects. An employee of Petitioner provided sod installation services on an independent basis to Respondent Arsham for these shipments. On Monday, September 26, 1988, Tom Shaldjian, the president of Respondent Arsham, discussed with Petitioner's personnel an arrangement whereby Petitioner would provide grass sod for a particular project under construction by a third party builder. Shaldjian told Petitioner that billing for the sod should be made directly to this builder, rather than to Respondent Arsham as had been the practice on previous occasions. However, Shaldjian promised Petitioner personnel that if payment for the sod was not made by the builder, then Respondent Arsham would pay the bill. Petitioner agreed with this arrangement. Confirmation of the required quantity of sod, approximately 15 pallets or 7500 square feet, was made by Shaldjian on Wednesday, September 28, 1988. Petitioner delivered 15 pallets of grass sod to the building site on Friday, October 28, 1988. In his independent capacity, an employee of Petitioner provided installation services at the site for the grass sod. Subsequent to the delivery and installation of the sod, Petitioner followed Respondent's instructions and submitted a bill to the construction builder for a total amount of $ 1033.50. Of this amount, $975 was allocated to 15 pallets of sod at a cost per pallet of $65. The remainder of the amount consisted of sales tax in the amount of $58.50. The builder paid only $964.60, or an amount equal to the cost of 14 pallets plus 6 per cent sales tax. Shaldjian, Respondent Arsham's president, visited the construction site after what he determined to be the completion of the grass sod installation and noted that almost one complete pallet of grass sod had not been utilized. Only a few pieces of sod were missing from the pallet. As a result of this observation, he later advised Petitioner that Respondent Arsham would not be responsible for paying the $65 deducted by the builder from the initial bill for the 15th pallet of sod. Shaldjian's testimony that Petitioner worked this particular sod job alone and without the involvement of Respondents is not credited in view of other testimony establishing that Petitioner had no arrangement or contract with the builder regarding the sale of the grass sod in question beyond submission of the bill for the product, after delivery, to the builder as opposed to Respondent Arsham. Testimony of personnel employed by Petitioner establishes that the sod in this instance was a perishable product in view of weather conditions at the time, making salvage of any sod remaining after the installation impossible. The proof fails to establish that Petitioner took possession of any grass sod remaining at the conclusion of its installation or otherwise obtained any salvage value from any of the product which may have been left over.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring Respondents to pay Petitioner the sum of $68.90. DONE AND ENTERED this 7th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 7th day of June, 1989. COPIES FURNISHED: Arsham & Associates, Inc. 254 Longwood Hills Road Longwood, Florida 32750 Safeco Insurance Company of America Safeco Plaza Seattle, Washington 98185 Hillside Sod Farms, Inc. 1620 E. State Road 46 Geneva, Florida Hon. Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-1550 Mallory Horne General Counsel 513 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650
The Issue Whether Respondents Veg Service, Inc., and Western Surety Company are justly indebted to Dixie Growers, Inc., for Florida- grown agricultural products which Dixie Growers, as the agent for the producers of the products; sold to Veg Service?
Findings Of Fact The Parties Dixie Growers, located in Plant City, Florida, is a producer, packer, and seller of Florida-grown agricultural products. It also acts as a sales agent for growers of Florida agricultural products, and in that capacity is a producer of agricultural products. Ms. Linda T. Lawton is the Vice President/Secretary for Dixie Growers, Inc. Mr. George Locklear is a salesman for the company. It is the practice of Dixie Growers, Inc., to pay the growers who provide it with agricultural products to be sold on the open market within 10 to 14 days of shipment unless the broker or purchaser to whom the products are sold notifies Dixie of a problem. This practice was made known to Veg Service before the incidents which led to these proceedings. Whenever Dixie receives notice of a problem with the shipment prior to payment of the grower, Dixie places a "trouble" memorandum on the top of the file. In such a case, Dixie does not usually pay the grower until the problem has been resolved with the broker and then only in an amount that does not exceed what Dixie receives from the broker or purchaser. Veg Services, Inc., is a negotiating broker of Florida agricultural products, some of which it has purchased from Dixie Growers. In this capacity Veg Services is a dealer in agricultural products. The company is located in Pompano Beach, Florida. Western Surety Company is the issuer of bonds to Veg Services, Inc., in amounts sufficient to cover the disputes involved in this proceeding. Case No. 96-3995A On June 1, 1996, Dixie Growers sold 260 boxes, (1 and 1/9th bushels each), of fancy eggplant to Veg Services. The price was $8.00 per box for a price of $2,080 for the entire shipment. On June 5, 1996, the U. S. Department of Agriculture, at a cost of $278, conducted an inspection of the 260 boxes of eggplant in Providence, Rhode Island at the premises of Tourtellot and Company, Inc. Under the section marked "Grade" in the inspection certificate, the eggplant was found to fail "to grade U.S. No. 1." On the same day as the inspection, Dixie Growers received by fax a copy of the inspection, Inspection Certificate K-195345-4. In accord with its customary practice, Dixie Growers placed a "trouble" memorandum in its file so that it would not pay the grower of the eggplant until the trouble was resolved. On June 17, 1996, Dixie Growers received a fax of the invoice from Veg Services marked, "OK." Interpreting the "OK," to mean that payment would be in full, George Locklear called Veg Service to double-check. He talked with Martin Shield and Marcie, a member of the office staff. First Marcie and then Mr. Shield stated that the invoice would be paid in full. Before the growers were paid on the strength of the representations of the two Veg Service employees made June 17, however, Deborah Lawton, Dixie's bookkeeper asked Mr. Locklear to inquire as to whether the cost of the inspection ($278,) would be deducted from the payment. Marcie told Mr. Locklear that payment would be in full with nothing deducted for the inspection. With the understanding that payment would be made in full with nothing deducted for the cost of the inspection, Dixie Growers paid the growers of the eggplant in full. On July 1, 1996, after payment had been made by Dixie Growers to the growers of the eggplant, it received a fax from Veg Services that it would be paid only $1.60 per box instead of the full $8.00 per box. When Mr. Locklear called to inquire about the fax, Marcie told him that Veg Services had made a mistake when it said that payment would be in full. Dixie Growers received payment in the amount of $416.00 leaving $1,664.00 still due. Case No. 96-3996A On April 27, 1996, Dixie Growers sold 65 boxes of medium squash, 200 boxes of select cucumber and 60 boxes of cabbages to Veg Service. No trouble with the produce was ever reported by Veg Service to Dixie Growers. Nor was there ever made a federal inspection of the produce. The total bill for the sale was $2610.00. On May 9, 1996, another sale was made by Dixie Growers to Veg Service: 154 boxes of medium zucchini, 72 boxes of small squash, 72 boxes of medium squash, 50 boxes of choice cucanelle and 120 boxes of large cucumbers. No trouble with any of the produce was ever reported by Veg Service to Dixie Growers. Nor was there a federal inspection conducted. The bill for the sale was $4,360.00. On June 12, 1996, payment was received for the April 27 sale in the amount of $1,280 leaving a balance of $1,330. The same day payment was received for the May 9 sale in the amount of $2,259.50 leaving a balance due of $2,100.50. Invoices showing the balances due for the two sales were mailed by certified mail to Veg Service. Following phone calls by Dixie Growers, at the request of Veg Service staff, the invoices were later faxed twice to Veg Service. The two balances, totalling $3,430.50, had not been paid as of final hearing. Had any trouble with either sale been communicated to Dixie Growers prior to the payment it made to the growers of the produce, then Dixie Growers would not have paid the growers until the problem was resolved. Since Veg Service did not communicate any problem with either sale in any way, Dixie Growers paid the growers. Case No. 4727A On June 6, 1996, Dixie Growers sold Veg Service 500 boxes of fancy eggplant, 200 boxes of choice eggplant, 600 boxes of large bell peppers, 200 boxes of extra large bell peppers and 50 boxes of long hot peppers. The invoice for the sale shows $14,200 due for the produce and a charge of $23.50 listed for "Temp.Recrd," for a total invoiced amount of $14,223.50. On July 17, 1996, Dixie Growers received a check from Veg Services for $10,262.50 for the June 6 sale leaving a balance of $3,961.00. When George Locklear of Dixie Growers inquired of Veg Service as to why the invoiced amount had not been fully paid, he was told that a federal inspection had shown that the peppers were smaller than as represented by Dixie Growers. This was the first time that Dixie Growers had received any notice from Veg Service that there was any trouble with the June 6 sale. The inspection was faxed to Dixie Growers on July 31, 1996, long after Dixie Growers had paid the growers of the produce. The fee for the inspection by the U.S. Department of Agriculture was $111.00. That fee had been deducted by Veg Service when it paid the invoice amount so that the amount claimed due by Dixie Growers in this case ($3,961) is the sum of the inspection fee ($111) and a balance not paid on the produce sold, ($3,850).
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Agriculture and Consumer Services enter a final order adjudicating Veg Service, Inc., to be indebted to Dixie Growers, Inc., in the amount of $9,055.50. DONE AND ENTERED this 31st day of December, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1996. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0350 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Charles E. Lawton, President Dixie Growers, Inc. Post Office Box 1686 Plant City, Florida 33564-1686 Herbert Shield, President Veg Service, Inc. 150 SW 12th Avenue, Suite 370 Pompano Beach, Florida 33069 Western Surety Company Legal Department 101 South Phillips Avenue Sioux Falls, South Dakota 57102
The Issue The issue in this case is whether Petitioner is entitled to payment from Respondent for sod that it sold.
Findings Of Fact Petitioner grows sod and sells it to persons who are in the business of installing sod. Respondent installs sod for its customers, such as homeowners, businesses, and schools. Both parties are experienced in the sod business, although Respondent has more experience than Petitioner with Floratam sod. Respondent is a large user of sod. Petitioner sold from 3-6 loads daily to Respondent from July to October, 1993. Until the loads in question, there were no problems, and Respondent paid for the sod. On October 5, 1993, Petitioner sold Respondent 18 pallets of Floratam sod. At the agreed-upon rate of 6 cents per square foot, the price of this sod was $432. The next day, Petitioner sold Respondent 36 pallets of Floratam Sod for $864. On October 11, Petitioner sold Respondent 34 pallets for $816. The next day, Petitioner sold Respondent 18 pallets for $432. And on October 14, Petitioner sold Respondent 18 pallets for $432. The total price of the Floratam sod sold to Respondent was thus $2976. For each sale, Petitioner cut the sod and loaded it on the truck of an independent contractor hired by Respondent to transport the sod to the customer's site for installation. For each load, the driver signed an invoice indicating the amount of sod and stating: Your signature acknowledges acceptance. Any claims must be made within 24 hours of delivery or pick up. A 1.5 percent (18 percent per annual) service charge will be added to all accounts 30 days past the invoice date. In the event it is necessary to turn the invoice over for collection or the same has to be collected upon demand of an attorney[,] purchaser agrees to pay all attorney's fees and costs for such collection. The sod was in below-average condition. Petitioner agreed to sell it, and Respondent agreed to buy it, in "as is" condition. The sole warranty attaching to the sod was that Respondent could assert a claim against Petitioner if the claim was asserted within 24 hours of pick up. Sod harvested in early October has undergone the stress of summer weather, in which heat and moisture can damage the grass and leave it in weakened condition. There was little sod left in the area, Respondent's demand for sod due to contractual commitments was great, and Respondent was left with few options but to try to use Petitioner's sod. The price paid by Respondent was somewhat reduced to reflect the below-average condition of the sod. Several factors militate against Respondent's claim that the sod was of such poor quality as to warrant cancellation of the invoiced amounts. First, Respondent did not timely assert a claim against the sod. Respondent did not assert a claim within the 24 hours set forth in the invoices. More important, Respondent ignored subsequent billings for the sod and did not complain about the sod until Petitioner's president spoke with Respondent's president and demanded payment. This conversation took place about 70-80 days after the sales. Other important factors undercutting Respondent's defense are the satisfaction of other purchasers of sod in the same time period and the questionable cultivation practices of some of Respondent's customers. Several persons bought Floratam sod from Petitioner in late September and early October. In most cases acknowledging that the sod was in below-average condition, these purchasers reported that they knew that the sod was purchased in "as is" condition and that, with appropriate irrigation and fertilizing, the sod was successfully established in the customers' property. The record suggests that the some of Respondent's customers, including a major institutional customer, may not have been as careful in maintaining the newly installed sod that was already in somewhat stressed condition.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding Respondent liable for the sum of $2976, plus interest at 18 percent annually, and, if Respondent does not pay said amount, ordering the surety to pay said amount, up to the amount of the bond. ENTERED on April 20, 1994, 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 on April 20, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-8: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-6: rejected as subordinate. 7-8: adopted or adopted in substance. 9: rejected as subordinate. 10-14: adopted or adopted in substance. 15: rejected as subordinate. 16-22: rejected as unsupported by the appropriate weight of the evidence. 23: rejected as unsupported by the appropriate weight of the evidence to the extent of implication that Respondent initiated the call to express his concerns about the sod quality. 24-26: rejected as subordinate. 27: rejected as recitation of evidence and subordinate. 28-30: rejected as subordinate. 31: [omitted from proposed recommended order]. 32: rejected as irrelevant given "as is" nature of subject transaction, as well as limitation of this remedy to sod against which timely claims are made. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Attorney Kristy C. Shaffer P.O. Drawer 1820 LaBelle, FL 33935 John Charles Coleman Coleman & Coleman 2300 McGregor Blvd. Ft. Myers, FL 33901 Ohio Casualty Insurance Co. Legal Department 136 North Third St. Hamilton, OH 45025
The Issue The issue is whether Respondent discriminated against Petitioner based on her race and/or age in violation of Section 760.10, Florida Statutes(2005).
Findings Of Fact Petitioner is an African American female. She was over the age of 40 when Respondent hired her and when she resigned her position as Respondent’s sales associate. Respondent is an employer as defined by the Florida Civil Rights Act of 1992, as amended, Sections 760.01-760.11 and 509.092, Florida Statutes (2005)(FCRA). Dillard’s Inc., purchased numerous department stores owned by C. J. Gayfer and Company in 1998. Respondent, which is located in the Cordova Mall, Pensacola, Florida, is one of those stores. Respondent employs 200 to 250 sales associates. Approximately 48 percent of Respondent’s employees are over the age of 40. About 90 percent of Respondent’s employees are older than Petitioner. Additionally, 28 percent of Respondent’s employees are African American. Respondent hired Petitioner on May 11, 1999, as a sales associate in the Cordova Mall Store. Because Petitioner did not apply for a specific position, Respondent assigned her to the men’s fragrance department/work center with a starting rate of pay at $8.00 per hour. Respondent also provided Petitioner with health insurance benefits. Petitioner was an experienced retail salesperson when Respondent hired her. However Petitioner had no experience or training in selling men’s fragrances. Throughout Petitioner’s employment with Respondent, Beth Winter was the store manager. Ms. Winter is responsible for the store’s profitability and merchandise. She also manages the area sales managers (ASM) of the various work centers. Ms. Winter reports directly to Linda Sholtis, Respondent’s District Manager. Ms. Sholtis is responsible for 18 of Respondent’s stores. In December 2004, Respondent was in the process of preparing its payroll budgets for the following year. Respondent’s executive management made a business decision to reorganize some of its work centers. Specifically, Respondent decided to use its smaller work centers to train new sales associates, to keep the lower pay rates in the smaller work centers, and to move the sales associates in the smaller work centers, who were earning higher rates, to other work centers that could support their higher rates. High rates in a small work center means that Respondent has less hours to allocate to the department, resulting in less hours available for customer service. Respondent made a business decision to move the higher rates into the larger work centers that could support those rates. As a non-commissioned sales associate, Petitioner was subject to Respondent’s Sales-Per-Hour (SPH) program. Respondent applies the SPH program to all non-commissioned sales associates and to some commissioned sales associates working in ladies shoes. The SPH program is based on objective criteria described below. The SPH program has “standard goals” and “raise goals” that are based upon an employee’s hourly rate. The standard goal is the dollar volume of sales an employee is required to average for each hour worked to support his/her pay. The raise goal represents the dollar volume of sales an employee should average per hour during a review period to justify a pay increase. To determine the goals, each work center is assigned a “selling cost” (SC). Respondent’s executive management determines the SC for each work center in each store. The SC for a work center reflects the percentage of sales that Respondent determines should be the maximum amount budgeted for payroll expense for a particular work center. SC calculations are based on historical sales and marketing data. The SC and the SPH goals for sales associates vary among work centers based on sales history. For example, in the Cordova Mall store, the men’s fragrance work center has a SC of 12 percent, meaning that Respondent does not want the payroll budget in that department to exceed 12 percent of the dollars earned from its sales. The men’s fragrances department is a very small work center. It has a higher SC because it does not have as much sales volume as the larger work centers. To derive an employee’s SPH goals, an employee’s hourly wage is divided by the SC percentage for the employee’s work center. Accordingly, as an employee’s hourly wage increases, the employee’s SPH goal increases. Further, as the work center’s SC percentage increases, an employee’s SPH goals decrease. An employee’s age and race are not factored into the sales goals derived under Respondent’s SPH program. The program is a mathematical formula centered around an employee’s hourly rate and the SC of the employee’s assigned work center. Before the above-referenced reorganization took place, there were four sales associates assigned to men’s fragrances. Petitioner was the only Africa American. Lois Thomas and Cathy Carlisle were Caucasian. Marie Aceval was Hispanic. All four associates were over the age of 40. In December 2004, Petitioner was one of Respondent’s top sales associates. She was the best sales person in men’s fragrances and received the highest rate of pay. She was a very aggressive salesperson. Over the course of Petitioner’s employment, her salary increased substantially from $8.00 to $17.00 per hour as a result of her ability to sell men’s fragrances and merchandise outside of her work center in men’s clothing. Men’s fragrances was a small work center that was not budgeted for a sales associate to earn $17.00 per hour. As of December 2004, Petitioner had a pay rate of $17.00 per hour and men’s fragrances had a 12 percent SC. Therefore, Petitioner’s individualized SPH standard was $142.00. On the other hand, a sales associate assigned to men’s clothing would have a SC of 6 percent and an SPH of $283.00 if paid $17.00 per hour. When assigned to men’s fragrances, Petitioner’s substantially increased her productivity by selling goods from the men’s clothing work center. This significantly inflated Petitioner’s performance because she received double-credit for the sales outside of her assigned area. Petitioner had less volume to sell in men’s fragrances (with a SC of 12 percent) to meet her SPH, whereas, employees in men’s clothing (with a 6 percent SC) had a larger volume of merchandize to sell. When Petitioner sold merchandize in men’s clothing, she would still get the men’s fragrances 12 percent SC credit. Petitioner sold more merchandize outside her area than any other employee in men’s fragrances. Petitioner understood that her primary duty was to sell goods in men’s fragrances. However, about 25 percent of Petitioner’s sales were from the men’s clothing work center. In December 2004, Respondent did not have a policy prohibiting sales associates from selling goods from other work center. Respondent did not write employees up for such sales. Respondent understood that a certain amount of such sales were necessary for customer convenience. However, Respondent discouraged out-of-area sales. Respondent continued to give Petitioner annual raises because there was no specific prohibition against her selling merchandize from men’s clothing. Petitioner actively went out of her work center to get customers, knowing such sales would inflate her rate. On several occasions, Lisa Bell, the ASM for cosmetics and the direct supervisor for men’s fragrances, advised Petitioner and other associates about the need to limit sales outside of men’s fragrances. Early in December 2004, Ms. Sholtis visited the Cordova Mall store. Ms. Sholtis met Ms. Winter and Ms. Bell in Ms. Bell’s office. During the meeting, Ms. Sholtis explained that employees in the smaller work centers, who are earning more than their assigned work center’s support rate, would be moved to better areas in the store that could support their pay rates. Ms. Sholtis also explained that some of the smaller work centers would be used as training areas. Specifically, men’s and ladies’ fragrances, junior’s clothing, ladies’ accessories, and children’s clothing would become training grounds for new associates. The company-wide plan for all stores included moving associates to better areas in the store after a training period. Ms. Sholtis reviewed a computer screen that identified employees by last name and pay rate. The screen did not disclose the employees’ race and age. Ms. Sholtis, without any knowledge of Petitioner’s race and age, selected her as the first employee to be reassigned from men’s fragrances. Ms. Sholtis selected Petitioner solely because her pay rate was the highest at $17.00 per hour. The men’s fragrances work center could support a rate of $10.00 or $11.00 per hour. All of the employees in men’s fragrances earned more than that amount. Therefore, all four sales associates had to transfer out to another area. Respondent transferred them in rank order from highest to least paid. The same reorganization involving Caucasian employees took place in the children’s work center and the ladies’ accessories area. When Ms. Bell questioned the timing of the transfers, Ms. Sholtis explained that the reorganization was a corporate- wide decision. Respondent was transferring associates in ladies’ and men’s fragrances in other stores. The transfers were affecting associates with up to 15 years of experience. In some cases, all of the employees in a work center would be transferred. Ms. Sholtis informed Ms. Bell that transfers should not be delayed until after the holidays. According to Ms. Sholtis, Petitioner’s immediate transfer would give her first choice of the best available positions in the store. Moreover, Petitioner’s compensation would not be affected by transferring before Christmas. At the time that Respondent made its decision to reorganize, the company could have instituted a policy that allowed Petitioner and other employees to remain in men’s fragrances and limit the credit they received for sales outside their work center. However, Respondent decided instead to transfer its most experienced associates to larger areas where they could maintain their high rates of pay. In any event, Petitioner would have considered it a demotion to have her pay reduced to $8.00 per hour, even if she had been allowed to stay in men’s fragrances. By the time of the hearing, Respondent had adopted a policy that limits the credit employees receive on sales outside their work center. In December 2004, Ms. Winter met with Petitioner to explain the decision to move her out of men’s fragrances due to her high rate of pay. Ms. Winter explained that the best areas in the store to support her pay rate would be the shoe department and cosmetics. Over a period of about two weeks, Ms. Winter provided Petitioner with several options for reassignment. Ms. Winter explained the benefits of each area, but specifically and repeatedly recommended ladies’ shoes and cosmetics, especially the Estee Lauder makeup counter. Respondent had associates making the highest rates of pay in those areas. At the time of the hearing, Respondent had four people in ladies’ shoes making $17.00 per hour or higher. One employee made $21.53 per hour. An employee in ladies’ shoes does not need years of experience to develop a client base in order to achieve a high rate of pay. One employee in ladies’ shoes was able to earn $15.81 per hour after seven months. Respondent transferred this employee from the junior department to shoes with no special knowledge about shoes and no customers. Another example of not needing time in ladies’ shoes to be successful involved an employee hired two weeks before Petitioner resigned in September 2005. The employee achieved an hourly pay of $18.46 after 15 months in ladies’ shoes. The record indicates that African American and other minority employees earn rates of pay as high or higher than $17.00 in ladies’ shoes. It is undisputed that some of the minority employees earning these high rates are older than Petitioner. Employees in the shoe department may earn a commission in addition to their SPH pay rate. They have a support rate but can earn higher raises if they support their rate. They can also request to raise their rates. Therefore, all associates in shoes may not have the same base rates, but they all earn 9.5 percent as commissions. The SC in shoes is also 9.5 percent. The average SPH goal for employees in shoes is $120.00. Employees earn the commission on sales made after they reach their SPH goal. Petitioner rejected the opportunity to transfer to shoes. She did not want to perform the work required to sell shoes. Petitioner was aware that one employee in her late 40s or early 50s earned approximately $17.00 in cosmetics. Ms. Bell wanted Petitioner to work in cosmetics because it would mean that she stayed in Ms. Bell’s work center. Nevertheless, Petitioner rejected the opportunity to work in cosmetics because she did not want to put make-up on people. After refusing a job in cosmetics or shoes, and not being permitted to transfer to a training work center, Petitioner’s remaining choices were in men’s clothing or women’s clothing. Petitioner elected to work in the ladies’ designer/bridge work center where Respondent sold women’s better clothes. Petitioner believed that she had a chance to support her pay rate in that area. Ms. Winter advised Petitioner not to transfer to the ladies’ designer area because it would be difficult for her to support her rate. Petitioner did not take Ms. Winter’s advice. Ms. Winter informed Petitioner that her transfer would not result in an immediate reduction in pay rate to the minimum rate paid to new hires. Rather, Petitioner would be paid her $17.00 rate regardless of her sales performance for six months. After that time, Petitioner’s rate, as well as the other transferees’ rates, would be adjusted based upon sales performance during the second three-month period and the new work center’s SC. Respondent required every transferring employee to sign a conditional transfer agreement setting forth the payment terms. The only option besides signing the conditional transfer agreement was to resign. In accordance with Respondent’s reorganization plan, Respondent used men’s fragrances to train new associates. Some of the new employees were younger than Petitioner. For example, Ms. Bell hired Renee McCurley, a Caucasian female to fill Petitioner’s position at $8.00 per hour. Ms. McCurley was 19 or 20 years old. Ms. McCurley trained in men’s fragrances for four or five months before transferring to ladies’ fragrances. Respondent subsequently fired Ms. McCurley because she was unable to meet her hourly goals after her transfer. On or about December 21, 2004, Respondent transferred Petitioner to ladies’ designer clothes. She was aware that the women’s work center had a SC of 6 percent. Brenda Maldon was the ASM over women’s clothing. Ms. Maldon became Petitioner’s direct supervisor. Ms. Maldon is African American and older than Petitioner. Petitioner’s annual review period ended in June 2005. However, Respondent gave Petitioner a review in December 2004 pursuant to policy that requires a review when any employee leaves his or her assigned area. The December 2004 monthly report indicated that Petitioner had not satisfied her SPH standard goal at that time. After several months, Petitioner was fourth in sales among about 30 people in the entire women’s clothing work center. She ranked number one in sales in the ladies’ designer area. Petitioner’s successful performance in the ladies’ designer area was not simply the result of the holiday season, which ended in January 2005. Petitioner ranked number one in her area, and number four in the entire work center, during the time between December 2004 and February 2005. January and February usually are slow retail months. Respondent reviewed Petitioner performance again in April 2005. As set forth in the conditional transfer agreement, employees who have transferred to another area receive a three- month review. During the second three-month period of her reassignment, Petitioner’s sales decreased. She took long weekends off from work, thereby missing the busiest sales time of the week. She ranked number 18 in sales in the entire women’s clothing work center. However, she still ranked number one in sales in the ladies’ designer area. Petitioner’s sales performance during the second three months after the transfer could not support her $17.00 pay rate. Instead, her sales performance supported a pay rate of $7.95 per hour. At that time, due to the impact of a hurricane, no one in the ladies’ designer area supported their rates. Everyone was off their sales goals. Although Petitioner ranked number one in sales in her area, the decision that she was unable to support her $17.00 pay rate was based on the mathematical formula set forth in the conditional transfer agreement. Petitioner’s $7.95 pay rate was derived by dividing her actual SPH of $136.00 by her SHP goal of $291.00 and multiplying the product by her pay rate of $17.00. Petitioner’s $7.95 pay rate became effective July 31, 2005. Of all the employees transferred out of men’s fragrances, Petitioner received the largest pay reduction after six months because she had the highest pay rate before the transfer. Respondent applied the same formula and calculations to every employee who transferred out of a work center. For example, Ms. Thomas, who continued to work for Respondent at the time of the hearing, received a reduction in her pay rate after transferring from men’s fragrances to another work center from $13.45 to $8.60 per hour. There is no persuasive evidence that Respondent denied Petitioner training in the ladies’ designer area. Additionally, Petitioner never complained to Respondent’s management that she was experiencing a hostile work environment because of her race and/or age. Petitioner requested and received a leave of absence on August 8, 2005. She resigned on September 1, 2005. Petitioner advised Respondent’s staff that she was resigning due to the stress and anxiety related to her “demotion” and her resulting financial problems. Petitioner implied that she had another job that she did not want to discuss. During the hearing, Petitioner testified that she resigned because she “could no longer afford to drive 90 miles per day.” After leaving her job with Respondent, Petitioner received about $6,000.00 in unemployment compensation. Six months after her resignation, Petitioner began working for another employer, earning $9.00 per hour without any medical or other benefits. Two months later, Petitioner quit her job again; she was unemployed for approximately three months without unemployment compensation. In August 2006, Petitioner accepted employment with Wal-Mart.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of February, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 8th day of February, 2007. COPIES FURNISHED: Christopher E. Varner, Esquire Christopher E. Varner, P.A. 6056 Doctor's Park Road Milton, Florida 32570 Lori R. Benton, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Post Office Box 60 Orlando, Florida 32802-0060 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denis Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On August 6, 1986, an indemnity bond was executed between RAINMAKER as principal and FIDELITY as surety. The effective dates of the bond were from October 21, 1986, to October 20, 1987. The bond was required under Sections 604.15-604.30, Florida Statutes, in order for RAINMAKER to become licensed as a dealer in agricultural products in Florida. The purpose of the bond is to secure the faithful accounting for a payment to producers or their agents or representatives of the proceeds of all agricultural products handled or purchased by RAINMAKER. The Petitioner, SHAN-RON, is a corporation whose address is 276 Cypress Street, La Belle, Florida. Its purpose is to conduct business by finding buyers for sod located on acreage owned by various cattle ranchers in Lee County, Florida. This practice is commonly known as "bird dogging" in the agricultural trade. The way the business is conducted is as follows: SHAN-RON is contracted by sod installers to whom it sells sod in specific quantities for a fixed price. Once the oral agreement is made, SHAN-RON tells the sod installer where a sod field is located. At this point in the business transaction, the sod installer sends independent truck drivers to the designated sod field. If the sod installer is unable to locate truckers, he telephones a SHAN-RON field foreman. The foreman, as a courtesy, will check to see if any of the independent truckers currently as the sod field can haul a load for the sod installer. Once a trucker is located, employees from SHAN-RON mow the grass, cut the sod, and load it onto pallets owned by SHAN-RON. The truck is loaded with pallets by SHAN-RON employees and the driver is given two copies of the load ticket, one for him and one for the sod installer. The driver delivers the sod and pallets to the address placed upon the load tickets. Upon delivery, the driver has the responsibility to deliver the load ticket to the business office of the sod installer. If he does not deliver the ticket, he does not get paid for hauling the sod. Employees of the sod installer are usually at the delivery site. The sod is laid and the empty pallets are returned to the sod field by the truckers. Every Friday, a representative of SHAN-RON personally delivers a weekly bill to the sod installer in order to collect is owed. When the money is collected, the funds are divided between the rancher whose sod was sold and SHAN-RON. The accountability system used within the sod industry leaves room for a high margin of error at various stages. The SHAN-RON employees occasionally short pallet loads or two layers of sod. The truck drivers occasionally misnamed the sod installer to whom the sod is to be delivered. The truck drivers also occasionally do not take empty pallets under their control back to SHAN-RON. They sell the pallets and pocket the money. The sod installer is financially responsible for the pallet costs. RAINMAKER is a corporation whose address is Post Office Box 7385, Ft. Myers, Florida. The company is primarily in the business of installing sod. It transacted business with SHAN-RON between November 11, 1986, and January 8, 1987. At the time of these transactions, RAINMAKER was licensed as a dealer in agricultural products supported by surety bond number 974 52 23 in the amount of $13,500.00. SHAN-RON, through testimony and the introduction of its business records, proved a prima facie case that RAINMAKER owes $12,964.00 for the purchase of sod between November 11, 1986, and January 8, 1987. Both parties Stipulated that $4,000.00 has been paid on the balance of the account which should be deducted from the balance owed SHAN-RON. In rebuttal to SHAN-RON's presentation, RAINMAKER presented testimony and a business record summary which revealed that six invoices were improperly charged, against its account in the amount of $1,260.00. The record summary was based upon a comparison of load tickets against production records during the time period involved. In addition, RAINMAKER's records reveal that the two drivers, Stormy and Fred Bower, were not paid for delivering the sod to RAINMAKER under the load ticket presentation to the sod installer which was previously described as an accounting method within the business. Because RAINMAKER set forth the issue of delivery discrepancies in its answer to the complaint and competent evidence was presented, $1,260.00 should be deducted from the `balance owed. SHAN-RON presented testimony that it is customary for the company to spray the sod for pest control. RAINMAKER received defective sod from SHAN-RON which contained "Creeping Charlie" weeds during the time of the deliveries in dispute. SHAN-RON was timely notified of the problem, and toad RAINMAKER to have the sod sprayed. A copy of the invoice for $300.00 was sent to SHAN-RON and has not been paid. Although the issue was not raised in RAINMAKER's answer to the complaint, it is properly before the Hearing Officer because of RAINMAKER's timely notification and cure of the defect in the product. The $300.00 should be deducted from the amount owed. Testimony relating to possible sod shortages was rejected as no evidence was presented that shortages occurred in the orders for which SHAN-RON seeks payment. The customary procedure In the sod business for handling credits for shortages requires the buyer to notify the seller within a responsible length of time of the shortages. Such notification did not take place as to the orders in dispute. The amount owed to SHAN-RON by RAINMAKER is $7,404.00. It is officially noticed that SHAN-RON's complaint was originally filed with the department on June 19, 1987, within nine months from the date of sale.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Agriculture enter a final order requiring the Respondent RAINMAKER to make payment to the petitioner SHAN-RON in the amount of $7,404.00. In the event that RAINMAKER does not comply with the department's order within fifteen days from the date it final, FIDELITY should be ordered to provide payment and the conditions and provisions of the bond furnished to RAINMAKER. DONE and ENTERED this 12th day of April, 1988, in Tallahassee, Florida. VERONICA E. DONNELLY 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 12th day of April, 1987. COPIES FURNISHED: Clinton H. Coutler, JR., Esquire Department of Agriculture Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of License and Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 Shan Ron Sod, Inc. 276 Cypress Street LaBELLE, FLORIDA 33935 Rainmaker Sod, Inc. 2290 Bruner Lane, South East Fort Myers, Florida 33912 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore, Maryland 21203 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain General Counsel Department of Agriculture Mayo Building, Room 513 Tallahassee, Florida 32399-0800
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: In January, 1990, the Respondent filed an application for credit with the Petitioner. The terms and conditions of the credit application provided: "All written 'Terms and Conditions of Sale' on invoices, statements, contracts or other written agreements must be observed and performed as stated." Further, the application provided: Payment of all amounts due shall be made not later than 30 days from the billing date. Amounts in default will be subject to a SERVICE CHARGE of 1 1/2 % per month (18 % Per Annum) on the unpaid balance. Failure to make payment within terms will result in cancellation of credit. Following acceptance of that application, Respondent sought to purchase sod from Petitioner's LaBelle sod farm. Invoices issued by Petitioner to Respondent at the time of the delivery of the sod provided that the amounts owed would be payable upon receipt of invoice. Further, the printed invoice required the purchaser to make claims within 24 hours of delivery or pick up. The invoices reiterated the 18 percent service charge for past due accounts. From December, 1990, through January 17, 1991, Respondent purchased and accepted in excess of $45,000 worth of sod from the Petitioner. The invoices for those purchases are identified in this record as Petitioner's exhibit 2. From January 30, 1991 until March 4, 1991, Respondent purchased and accepted $4,664.00 worth of sod from the Petitioner. The invoices for those purchases are identified in the record as Petitioner's exhibit 3. In February, 1991, when the Petitioner became concerned about nonpayment for the amounts claimed, contact with the Respondent was made for the purpose of resolving the matter. When those efforts failed to secure payment, the Petitioner instituted action through the Department of Agriculture against the Respondent's bond. The Petitioner claimed $45,080.25 was due for the invoices prior to January 30, 1991. The Petitioner claimed $4,664.00 was owed for the invoices subsequent to January 30, 1991. Subsequent to its claims, Petitioner received payments from the Respondent in the following amounts: $5,000.00 on March 11, 1991; $5,000 on March 26, 1991; and $2,000.00 on April 30, 1991. Applying the total of those payments ($12,000) to the indebtedness on the first claim reduces that amount to $33,080.25. Prior to the claims being filed, Respondent had notified Petitioner that some sod deliveries had been unacceptable because of the quality of the sod or the amount. Respondent claimed the Petitioner had "shorted" the square footage amounts per pallet so that Respondent was being charged for a pallet that did not contain the requisite square footage of sod. On one occasion, in January, 1991, the Petitioner gave Respondent a credit in the amount of $1,173.75 for either refund on poor quality sod or a shortage. The Respondent continued to purchase sod from Petitioner until its credit was no longer accepted by Petitioner, i.e. March 4, 1991. Respondent did not, within 24 hours of receipt of sod, make a claim regarding the quality of the sod or the amount. By letter dated March 14, 1991, the Respondent, through its attorney, advised Petitioner as follows: St. Amour Sod Services, Inc., does not dispute the balance due to you as set forth in your letter and they will pay same in payments that are being determined now. For your information, the balance accrued because of the loss of several of our customers resulting from the poor quality of sod purchased from your firm. Respondent did not timely challenge the quality of the sod accepted, and did not present evidence regarding its alleged poor quality.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter a final order finding that Respondent is indebted to Petitioner in the amounts of $33,080.25 and $4,664.00, with service charge to be computed through the date of the final order; directing Respondent to make payment of the amounts to Petitioner within 15 days following the issuance of the order; and, notifying all parties that if such payment is not timely made, the Department will seek recovery from Respondent's surety, Aetna Casualty and Surety Company. DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1992. APPENDIX TO CASE NOS. 91-6388A AND 91-6389A RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: 1. Paragraphs 1 through 4 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraph 1 is accepted. Paragraphs 2, 3, 4, 6, 7, and 8 are rejected as contrary to the weight of the credible evidence or unsupported by the record in this case. With regard to paragraph 5, that portion of the paragraph which states the amount of payments made by Respondent ($12,000) is accepted. Otherwise, rejected as stated in 2. above. COPIES FURNISHED: Barry L. Miller P.O. Box 1966 Orlando, FL 32802 Gary A. Ralph 2272 Airport Rd. South, Ste. 101 Naples, FL 33962 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Dept. of Agriculture & Consumer Svcs. The Capitol, PL-10 Tallahassee, FL 32399-0810 Aetna Casualty & Surety Company Attn: Legal Dept. 151 Farmington Ave. Hartford, CT 06156
