The Issue The issue to be determined is whether Respondent committed an unlawful employment practice by discriminating against Petitioner because of her sex and/or age, and/or by retaliating against her for engaging in a protected activity.
Findings Of Fact Petitioner, a female, is a former employee of Respondent. At the time her employment with Respondent was terminated on December 31, 2015, she was 60 years old. Petitioner was a salesperson for Respondent, a company that sells specialty medical devices to medical providers and facilities. Petitioner’s background gave her technical knowledge regarding the cardiac-related product line, as she had obtained a certification as a perfusionist in 1978. A perfusionist operates the heart-lung bypass machine during open-heart surgery. By 1985, Petitioner moved into sales and has focused on cardiac products because of her background. Petitioner began her employment with Arrow, Teleflex’s predecessor, as a salesperson for the cardiac unit in August 2003. At some point, Arrow was acquired by Teleflex; the record is unclear as to exactly when this occurred, but it may have been sometime in late 2007. Petitioner testified that the product line has changed over the years, as there used to be artificial heart-related products, which were her “great loves” (R. Exh. 28 at 44), and why she started working there, but the company got rid of those programs. Under Teleflex, the main big-ticket piece of capital equipment sold by salespersons in the cardiac unit is the intra-aortic balloon pump. In addition, salespersons sell disposable products, such as catheters and cannulas used with the pump, in cardiac surgeries, and catheterization lab procedures. The organization and composition of the cardiac unit’s sales territories and the salespersons assigned to them were subject to change and did change throughout Petitioner’s time with Arrow and then Teleflex. Likewise, the organization and composition of sales divisions/regions and the managers assigned to be in charge of them were subject to change and did change throughout Petitioner’s employment. Sales divisions and sales territories within divisions were created, combined, split up, and reconfigured, and both salespersons and managers were added, eliminated, and reassigned. Petitioner attempted to recount the history of changes in sales territories that affected her during her years at Arrow and then Teleflex.1/ When Petitioner started in 2003, her sales territory was most of the state of Florida up to Tallahassee, and all of the cardiac unit’s sales representatives were under the supervision of a single manager. At some point, separate sales divisions were created, and a new manager was assigned to supervise Petitioner and others in her division. At another point, when a sales associate was let go, Petitioner’s sales territory was expanded to add the Florida panhandle and part of Alabama (to Mobile). At another point, separate sales territories were combined, and the sales associate who covered sales in Georgia and Alabama was let go. At the request of her new manager, Petitioner helped train a new sales associate to cover Georgia and Alabama. Petitioner was successful in sales for Arrow, and received several honors and awards for her achievements. At the end of her first year of employment in 2004, she was honored as “rookie of the year.” She received the chairman’s club award twice, in 2005 and 2007, for ranking in the top 10 percent of sales company-wide. Finally, she received the circle of excellence award in 2007, for having achieved her sales quota numbers three years in a row. Petitioner was promoted to executive sales representative, although she cannot remember exactly when that was. Her sales role was not changed, but she got a pay increase and some increased duties in the area of training new sales associates. When Teleflex acquired Arrow, the sales associate trained by Petitioner for the Georgia-Alabama sales territory was let go. Both Georgia and Alabama were added to Petitioner’s territory. From her home base in Florida (she lived in Spring Hill), she covered the three-state sales territory of Florida, Georgia, and Alabama. Another change affecting Petitioner occurred when the state of Georgia was reassigned to a salesman in North Carolina and Petitioner’s territory was reduced to Alabama and Florida. Later, that salesman was promoted to manager for the eastern division, and Georgia was added back to Petitioner’s sales territory. It is unknown when these changes occurred, but from that point until early 2014, Petitioner’s sales territory remained the three-state area of Florida, Georgia, and Alabama. Somewhere along the line, Petitioner experienced another changeover in management, with Christine Mazurk assuming the position of eastern regional manager. Ms. Mazurk supervised Petitioner from approximately 2010 to 2013. Petitioner was evaluated annually using a standardized format called the performance management process (PMP). The most heavily weighted area in the PMP is the annual formulation of business objectives and target goals, expressed in terms of sales revenue dollars by product line. In addition to business objectives, other categories evaluated include competencies and development. The objectives and target goals are established annually in the first quarter of the calendar year. The process begins with the employee who creates and submits the objectives and goals to his or her manager, who must accept them. At the end of the year, the employee performs a self-evaluation, rating each category as 1 (does not meet), 2 (partially meets), 3 (fully meets), or 4 (exceeds), while the manager similarly rates the employee in each category. The manager’s ratings are used to calculate an overall “final rating.” The final rating scale is as follows: between 1 and 1.4 means “does not meet”; between 1.5 and 2.4 means “partially meets”; between 2.5 and 3.4 means “fully meets”; and between 3.5 and 4 means “exceeds.” In 2011, Petitioner rated herself at 2 for business objectives, which she believed were partially met. She rated her overall performance at 3.0. In contrast, from her manager’s perspective, Petitioner did not meet her business (sales revenue) objectives, achieving only 73 percent of her revenue target for 2011. The manager gave Petitioner the lowest rating of 1 in business objectives, and an overall final rating of 2.4, partially meeting performance expectations. Petitioner added the comment in her PMP that the economy really hurt sales in 2011. Petitioner’s performance was worse in 2012, according to the PMP that she and her manager, Ms. Mazurk, completed. Once again, Petitioner’s self-evaluation was higher than her manager’s. Petitioner’s overall rating for herself was 2.9, but her manager’s overall rating and the final rating on her PMP was 2.0, a little lower than in the prior year in the range of only partially meeting her performance expectations. In this PMP, Petitioner offered the following comment: “Really feel the baseline numbers were off.” At some point in 2012, a business profile of Petitioner was prepared. Although the source of this profile was not entirely clear, Petitioner said that she thought it had been prepared by her manager (who, at the time, was Ms. Mazurk) in connection with a promotion that Petitioner was seeking. The profile reported that Petitioner had been employed at the company for nine years, and gave her sales performance in relation to her target goals for 2008 through 2011. The profile also identified Petitioner’s “developmental needs” in the following three areas: Communication skills (email and verbal with support team) Emotions run high Sales Training Petitioner did not receive the promotion, and continued as an executive sales representative in the sales territory of Florida, Alabama, and Georgia, under Ms. Mazurk’s management. In 2013, Petitioner’s PMP was not completed, apparently because Petitioner was out for two weeks with an injury, and then later in the year was out for two months for a surgical procedure and recovery. In the nine and one-half months that she worked (almost 80 percent of the year), she reportedly achieved sales revenues of 54 percent of her target revenue goal for that year. A reorganization at the end of 2013 resulted in a new manager for Petitioner, James Phillips. Mr. Phillips was the manager for the western North America sales region, but served temporarily as Petitioner’s manager, from January to May 2014, while the company was looking to bring in someone new to manage the eastern region. Mr. Phillips met with Petitioner in the beginning of 2014 to inform her of another realignment of sales territories, which would go into effect in March 2014. Insofar as the changes affected Petitioner, a new sales territory was being created, called the “south Florida” territory, and the company’s plan was to hire a new salesperson for the new territory. More accurately, the newly created sales territory covered more than just south Florida; it included all of the east coast from Jacksonville south, the west coast up to Tampa-Saint Petersburg, and part of central Florida, including Orlando. At the same time, the state of South Carolina would be added to Petitioner’s reconfigured sales territory. The impetus for creating the new south Florida territory was evidence showing that this highly populated market had been underpenetrated. In other words, Petitioner, who had been the area’s sole sales representative for more than 10 years, was not accomplishing the level of sales expected for this market. Accordingly, the business judgment was that splitting up the state and assigning the underpenetrated south Florida market to a new salesperson would promote increased market penetration by making that market the sole focus of the new salesperson.2/ Petitioner disagreed with splitting the state into two territories, but said that she could understand why the company wanted to create a new south Florida sales territory; as she stated, that market is very different from north Florida. However, solely from the perspective of the lost sales opportunities for herself, she voiced her disagreement with the line-drawing for the new territory. In a letter she sent to her new manager, as well as to three members of upper management, she requested that management reconsider how to split the territory within the state of Florida, and asked that she be allowed to retain the Orlando market. Petitioner’s letter also reported that she was “very excited” about the addition of South Carolina to her sales territory. Petitioner’s letter did not result in a reconsideration of the March 2014 territory realignment. Therefore, beginning in March 2014, Petitioner’s sales territory included the Florida west coast, central Florida north of Tampa/St. Petersburg from Ocala north to the state line, and the Florida panhandle, plus all of the states of Alabama, Georgia, and South Carolina. When the decision was made to create a new south Florida territory, a specific salesperson had not been identified for that new territory. Petitioner claims that she asked to be assigned to the new territory, but was refused. No evidence was presented to substantiate her claim; instead, the letter she wrote to her superiors about the realignment only asked that the territories be redrawn so that she could retain the Orlando market, while expressing her enthusiasm about acquiring the state of South Carolina. In May 2014, John Bowman was brought on board for the position of eastern regional manager, covering eastern United States and Canada. He was hired by the president of the company because the eastern region was underperforming. Mr. Bowman was charged with improving the business performance of the sales team so that sales would reach and sustain expected goals, which Mr. Bowman said is his forte. Mr. Bowman is very direct with the sales representatives under his charge. He is results-oriented and does not mince words when it comes to identifying deficient performance and making corrective “suggestions” that may sound more like demands. Thereafter, if he observes a continuation of the performance deficiency he has tried to correct, he is quick to point that out. That is his management style, and why he believes he has been effective in achieving results: “In sales you’re constantly measured by your results. You’re paid on your results. You’re measured on your results. You’re ranked on your results. I am as well and so is my president. And I make that very clear with sale individuals and always have.” (Tr. 138). As part of the management transition, Mr. Phillips provided Mr. Bowman with his assessment of Petitioner as a salesperson. Mr. Phillips had not served as Petitioner’s manager long enough to conduct a formal year-end PMP evaluation, and so the assessment was characterized as a “personal assessment” and was not placed in Petitioner’s personnel file.3/ While both positive and negative qualities were described in the assessment, there was more bad than good; however, Mr. Bowman set the assessment aside so that he could form his own opinions. He considered the points raised by Mr. Phillips as simply identifying some issues that he should look out for. Mr. Bowman was not based in the same city or even the same state as Petitioner. He did not meet with her until after he had been employed as her manager for just over one month. As Petitioner acknowledged, he had much ground to cover, as his region included all of North America east of the Mississippi from Florida up into Canada, and as she put it, “he tried to be fair with everyone.” (Tr. 100). Before Mr. Bowman ever met Petitioner, he fielded complaints from two different customers who called the Teleflex toll-free number to track down Petitioner’s manager. Both complaints were perceived by Mr. Bowman to be communication problems, i.e., the issues would not have arisen if Petitioner had communicated better with the customers. One of the customers complained to Mr. Bowman that Petitioner was “useless in giving us the information we needed.” (R. Exh. 10). Petitioner’s attempted explanation of the two incidents tended to lend credence to Mr. Bowman’s assessment and the customer’s comment. Ultimately, she sought to minimize their significance by characterizing them as only two isolated incidents during her long tenure. However, from Mr. Bowman’s perspective, these were two customer complaints that he had to field in his first month as Petitioner’s manager, unlike what he faced with any other sales representative there. When Mr. Bowman met with Petitioner on July 1, 2014, he talked with her generally about her background and abilities, which he complimented, and he addressed the concerns he had from the two customer complaints. He also identified two other areas where he thought her performance required improvement. In an email sent the following week, he summarized their discussion (including the compliments) and the three areas where he wanted to see her improve. These were: her interaction and communication with customers, evidenced by the two recent incidents requiring him to intercede; her communications with internal Teleflex personnel, where her failure to provide clear, complete, and precise information resulted in “elongated email strings” and confusion; and her too-frequent requests to him for low pricing approval. Petitioner was taken aback by these criticisms, which she took as demeaning and condescending, because she viewed herself as a proven performer who was highly respected. She did not react well to the email summary of these points, which she viewed as a paper trail intended to bring her down.4/ Nonetheless, Mr. Bowman’s points were shown to be valid, and, indeed, consistent with similar comments made by prior managers, including the manager who noted in Petitioner’s profile in 2012 that Petitioner needed to work on her verbal and e-mail communication skills. Mr. Bowman was clear in his meeting with Petitioner, in the e-mail summary of that meeting, in subsequent discussions, and in his testimony at hearing that he fully expected Petitioner to learn from his constructive criticisms and improve her performance. Moreover, he did not view her performance deficiencies as extreme enough to warrant formal action, such as placing her on a performance improvement plan. Instead, he quickly and consistently pointed out to Petitioner each time he saw a continuation of the behavior he had criticized, and he repeated the criticism while noting that he was repeating prior criticism, as was his way. Mr. Bowman testified credibly that he treated all of the sales representatives under his charge the same way, and was consistent in the way he communicated both positive capabilities and performance issues requiring improvement. Petitioner offered no evidence to prove that Mr. Bowman treated her any differently from the way he treated other sales representatives. One of Mr. Bowman’s first tasks as the new eastern region manager was to participate in interviews for a new salesperson to be assigned to the new south Florida territory. After interviews by Mr. Bowman, the president of the company, the director of finance, the director of marketing, and another manager, and after a third-party psychological exam, Eric Patton was hired in August 2014 as a sales representative for the new south Florida territory. At the time he was hired, he was approximately 34 years old. Although the territory changes went into effect in March 2014, Petitioner continued to cover sales in the new south Florida territory, for which she was compensated, until September 2014 when Mr. Patton assumed coverage of the territory. Petitioner was asked to provide Mr. Patton with information on her contacts in the new territory, and she did so. Petitioner also spent several hours with Mr. Patton at her home to demonstrate how she made her sales pitches, and she also gave him a script. Thereafter, she took a couple of day trips with him to introduce him to some customer contact persons in his new territory. These were meet-and-greet sessions only, not extended visits involving actual sales presentations. Petitioner’s view is that it was not fair that she lost the pipeline of sales opportunities in the south Florida territory to Mr. Patton. When it came to losing this, or any, sales territory, Petitioner complained that she was losing out on the “pipeline” of sales opportunities that she had cultivated but not yet closed. However, when Petitioner gained sales territory, she complained about the disadvantage of starting out from scratch in a new area. Neither viewpoint appears to comport with the reality that every time sales territories are changed, the new salesperson has some head start by virtue of the work of the predecessor salesperson. But there was no basis shown for Petitioner’s sense of “entitlement” to the benefits of a sales territory after the territory is assigned to someone else. That is particularly true here, where Petitioner did not refute the legitimate business purpose of an underpenetrated market that led to the territory reconfiguration. The company compensation system for sales representatives was based on revenue recognized from sales, not on unrealized “pipelines” for future business. Petitioner claimed that in one instance, she believes that Mr. Patton was treated more favorably than her while they were both working in sales in their respective territories. Petitioner and several other salespersons (both male and female) had closed some pump sales with contingency clauses written in the contracts whereby the customer would be allowed to return the pump and upgrade to a new model at no additional cost if a new model became available within 18 months after the sale. The company determined that under federal law, the revenue from those sales could not be recognized, but rather, had to be held in escrow until the contingency period had passed. Since sales commissions were paid on the basis of sales revenue recognized by the company, sales commissions were deferred as well. Mr. Bowman explained credibly that these deferred compensation sales had been allowed under a policy in place before he was employed, but that Petitioner’s deferred sale was the last of several allowed before the policy was discontinued. Petitioner testified that Mr. Patton told her that one year after her deferred compensation sale, he made a sale in which he was allowed to offer verbal, but not written, assurance that an upgrade to a new model would be allowed, and his commission was paid on the sale. However, Petitioner offered no non-hearsay evidence to substantiate her description of what she was told, and her description was refuted by Mr. Bowman’s credible testimony. In any event, Petitioner’s unsupported description did not establish two sales that would be considered the same so as to require the same treatment regarding payment of commissions. No finding can be made that Mr. Patton was treated more favorably than Petitioner in this regard, as claimed. Petitioner and Mr. Bowman completed Petitioner’s PMP evaluation for calendar year 2014. The evaluation was similar to those for Petitioner in 2011 and 2012. Petitioner rated her performance either the same or more favorably than her manager did, with the result that her overall final rating was 2.2, compared with her self-evaluation of 2.4. In mid-2015, the company lost a large contract with HPG, which is a large group purchasing organization (GPO)-- probably the largest in the country, according to Petitioner. Instead of contracting again with Teleflex, HPG entered into a sole source contract with Teleflex’s competitor. As Petitioner acknowledged, the recent advent of GPOs had dramatically changed the sales business, because the GPOs control access to potential purchasers. Purchasers using the GPOs are no longer free game for salespersons to explore new sales opportunities. For Teleflex, this meant that as of mid-2015, its salespersons could not solicit new sales from potential purchasers using HPG, because HPG would direct those purchasers to Teleflex’s competitor pursuant to the new sole source contract. As Petitioner acknowledged, the loss of the HPG contract was a substantial loss for Respondent, with the significant impact coming in the loss of growth opportunity to develop new business. In June 2015, the president of the company raised the possibility of a reorganization to consolidate the north Florida and south Florida territories, in light of the loss of the HPG contract. Mr. Bowman began discussions with senior management about possible changes to the sales territories. In late September 2015, Mr. Bowman provided senior management with a Power Point presentation that set forth a proposed reorganization of the southeast. His proposal was to reconfigure the two existing territories, to create a single Florida territory and a separate “Tidewater” territory covering Alabama, Georgia, and South Carolina. As he proposed the reorganization, the two sales representatives--Petitioner and Eric Patton--would cover the two reorganized territories. Meanwhile, Mr. Bowman continued to critique Petitioner’s performance in some fairly strident emails and conversations. In an incident on September 30, 2015, Petitioner submitted a quote request for a new pump for one Baycare hospital, while another Baycare hospital was also considering a new pump. According to Petitioner, the issue was not the price to quote for the new pumps, as she stated that the price had been set and was “already on a contract.” (R. Exh. 28 at 154). Instead, Petitioner said that the issue was whether the hospitals would get a credit for the cost of unusual repairs being made to their existing pumps. In contrast, according to Mr. Bowman, the company had already agreed that the repair costs would be applied to the purchase price, but the issue was what price should be quoted for the new pump, which he said had not been set by any contract. Mr. Bowman found the price requested by Petitioner to be too low, and instead of approving her price request, he sent her an email at 5:35 p.m. on September 30, 2015, questioning her price approval request, while noting the same price would have to be given to both Baycare hospitals. He ended the email as follows: “Call me tomorrow to discuss.” (R. Exh. 14 at 1). Instead of acknowledging Mr. Bowman’s email and waiting to talk to him first, Petitioner sent an email to the customer, with a copy to Mr. Bowman, the next morning. The email apologized for “not getting you the outright purchase quote yesterday,” explaining that the delay was because “[t]he outright quote required management approval[.]” (R. Exh. 14 at 2). After reading his copy of the email, Mr. Bowman called Petitioner and reacted harshly, telling Petitioner that she threw him under the bus by sending the email to the customer without discussing it with him first, and that she had committed a fire- able offense. While harsh, Mr. Bowman’s reaction was not off- base. Petitioner’s email tends to undermine her testimony that the issue was not the purchase price which she claimed was fixed by contract. And while Petitioner testified that she tried to call Mr. Bowman that afternoon or evening before she sent the email the next morning, Petitioner did not mention the email from Mr. Bowman. Surely, when waiting to hear from her manager, she would have read his incoming email before sending the email to the customer. Petitioner failed to explain why she did not follow her manager’s instruction to discuss the matter with him.5/ Following their telephone conversation, Petitioner called the human resources department and spoke with the manager, Jennifer Robichaud, to complain about Mr. Bowman. The essence of her complaint was that at 60 years old and close to retirement, she felt that Mr. Bowman was gunning for her and trying to push her out.6/ She complained about the March 2014 territory realignment, which she though was unfair because a large part of her territory was given to the new sales representative, “a young guy.” She told Ms. Robichaud that she has always been a top performer, and although she recently had not been closing sales on pumps, that was because she was starting from scratch in a new territory. She said that until Mr. Bowman came on board, she never had any issues with her past managers. Although she acknowledged that she and Mr. Bowman have very different styles, she felt that Mr. Bowman did not accept her for who she is. Ms. Robichaud assured Petitioner she would investigate. They spoke on a Thursday; Ms. Robichaud was able to discuss the matter with Mr. Bowman the following Tuesday, October 6, 2015. She relayed Petitioner’s complaints that she felt that Mr. Bowman was trying to push her out, and her feeling that it was unfair to give her pipeline to Mr. Patton. Mr. Bowman denied that he was trying to push Petitioner out of the company, and said, instead, he wants her to succeed. With regard to her perception about pipeline fairness, Mr. Bowman responded that all sales representatives are expected to have a pipeline of business opportunities, but that it is closing the business that matters. In the days thereafter, he sent Ms. Robichaud information pertinent to the investigation, including email communications with Petitioner, the assessment from Petitioner’s prior manager, and information about the customer complaints. Ms. Robichaud also investigated Petitioner’s annual PMP ratings and her performance through September 2015. She also sought and later received the data supporting the decision to realign the Florida territory in 2014. As before, Mr. Bowman continued his practice of addressing Petitioner’s performance on issues that had previously surfaced, which he had previously addressed with Petitioner. Thus, on October 9, 2015, Mr. Bowman criticized Petitioner for her email communications with customer service in which she asked for free replacements of medical supplies to be sent to her home for a customer, without giving sufficient information. The response from the customer service representative stated he was “a bit confused” by the request, and asked for more information: “Donna, your input is appreciated here.” The representative had to ask questions to get the information necessary to handle the request appropriately, such as whether the supplies were being provided for free to respond to a complaint. Mr. Bowman’s criticism was that Petitioner’s email request to customer service was “an example of a lack of professionalism and clarity in your communications. I have addressed this issue with you multiple times over the past year and unfortunately, you have not demonstrated improvement.” (R. Exh. 15). On Monday, October 12, 2015, Petitioner forwarded Mr. Bowman’s email criticism to Ms. Robichaud and asked her to call. They spoke Tuesday morning. Ms. Robichaud told Petitioner that she had been looking into Petitioner’s concerns and had spoken with Mr. Bowman. Ms. Robichaud told Petitioner that Mr. Bowman was not trying to push Petitioner out of the company, but was looking for performance results, and Ms. Robichaud did not find any reason to believe Petitioner was being treated unfairly. Ms. Robichaud said that Petitioner and Mr. Bowman needed to talk, because in Ms. Robichaud’s opinion, the problem appeared to be a clash of styles, which is not uncommon with a change in managers, and that they needed to learn to adapt. Ms. Robichaud talked to Mr. Bowman afterwards. She encouraged him to reach out to Petitioner, hear her concerns, and try to understand her perspective. She reminded him that he has acknowledged that he is very direct, and “perhaps a few small changes in how he communicates with her can have a positive impact.” (R. Exh. 18 at 2). Mr. Bowman contacted Petitioner, and they agreed to meet in person. The meeting took place on October 16, 2015, in Tampa. Before the meeting, Petitioner requested a copy of her personnel file from Ms. Robichaud. Petitioner testified that at the meeting, Mr. Bowman was very civil and respectful to her. He said that he thrives on diversity and enjoys the challenge of working with different kinds of people. He assured her that any decisions that are made are always going to be about performance. Petitioner reacted curiously to this: she testified that she realized that nothing was going to change, while admitting that Mr. Bowman was acting completely differently than he had before. Petitioner said that he was “extremely scripted,” and probably had been coached on what to say by the human resources manager. Yet she also complained, inconsistently, that the human resources department did nothing to help her or to facilitate a meeting with Mr. Bowman. According to Mr. Bowman, Petitioner said that she did not think she would be able to meet the objectives set for her. According to Petitioner, she said that he should just stop (being civil to her), that she knew what he was doing, and knew that he wanted her to go away. Regardless of which lead-in is accurate, Petitioner went on to offer that she would resign her employment at the end of the year if the company paid her the deferred commissions, and her salary and benefits for six months. Mr. Bowman was genuinely surprised by Petitioner’s offer. Shortly after Mr. Bowman’s meeting with Petitioner, Mr. Bowman was informed by his superiors that his proposal to retain but reconfigure two sales territories with two sales representatives in the southeast had been reviewed, but was rejected because it would not be a viable solution to address the loss of the HPG contract. Instead, the decision was made to consolidate the southeastern states--Florida, Georgia, Alabama, and South Carolina--into a single sales territory, covered by one salesperson. Mr. Bowman was told to extract metrics for the time period that Petitioner and Mr. Patton were both working sales in their respective territories, including their recognized sales revenues compared to their quotas, pump sales, and 2014 PMP rating. He was also told to add non-metric qualitative considerations regarding any business practice and customer interaction issues. Mr. Bowman pulled the data, and on October 23, 2015, he provided his superiors with his performance comparison of Mr. Patton and Petitioner. For the period of September through December 2014, Mr. Patton’s first quarter with the company, the quantitative metrics were mixed. Mr. Patton’s overall PMP performance rating of 2.7 was better, falling within the “fully meets expectations” range, whereas Petitioner’s overall rating of 2.2 only partially met her performance expectations. Mr. Patton sold one balloon pump during his first few months with the company. Petitioner was credited with zero sales of balloon pumps during this time, although she noted that she had at least one deferred sale that was not counted during this time. Petitioner achieved 104 percent of her overall sales quota from September to December 2014, although the revenue recognized was from disposables and not pump sales. Mr. Patton achieved 73 percent of his sales quota in his first few months with the company, but that included recognized revenue from a pump sale. For the first three quarters of 2015 (Mr. Bowman was able to extract data through the end of September 2015), the quantitative metrics were decidedly in Mr. Patton’s favor. During this period, Petitioner had zero pump sales, while Mr. Patton had seven pump sales, and Petitioner achieved 83 percent of her sales quota through sales of disposables, whereas Mr. Patton achieved 112 percent of his sales quota, largely from pump sales. On the qualitative considerations, Mr. Bowman summarized the issues he had been addressing with Petitioner in an attempt to bring about improvements, including communication issues with customers and internal personnel, as well as his concerns about her frequent requests for low pricing approval. He also noted a recent situation where Petitioner lost a pump sale to a hospital in Alabama. When he had asked Petitioner why she thought she did not get the sale, she explained to Mr. Bowman that the chief of perfusion “may have felt I was too aggressive,” that Petitioner “felt there was tension between he and I,” and “obviously something happened here.” (R. Exh. 22, last page). Petitioner acknowledged in her deposition that what Mr. Bowman said was true, but that the tension was due to extenuating circumstances. In contrast, for Mr. Patton, Mr. Bowman reported no issues of concern in just over one year of managing him. As Mr. Bowman testified at hearing, Mr. Patton was an excellent sales representative and Mr. Bowman found no performance deficiency issues to address with him. Petitioner offered no evidence to the contrary, stating that she had no knowledge of Mr. Patton’s performance or the quality of his salesmanship. Based on the performance comparison, Mr. Bowman recommended that Mr. Patton should be retained as the salesperson to cover the consolidated southeastern sales territory. Mr. Bowman’s recommendation was reasonable. Mr. Bowman’s recommendation was accepted and the decision made by senior management was to retain Mr. Patton as the salesperson for the consolidated sales territory and to terminate Petitioner’s employment due to elimination of her sales position. Petitioner presented no evidence to refute the reasonableness of Respondent’s business judgment to consolidate sales territories and reduce one sales position after the loss of the HPG contract. Instead, Petitioner only pointed to the suspicious timing of the decision in relation to her complaint to the human resources department about Mr. Bowman.7/ Petitioner does not contend that anyone other than Mr. Bowman himself discriminated against her or retaliated against her. The evidence does not support Petitioner’s claim that Mr. Bowman discriminated against Petitioner on the basis of her age or her sex, nor does the evidence support Petitioner’s claim that Mr. Bowman retaliated against Petitioner because she complained about him to the human resources department. Instead, the evidence established that when Respondent’s diminished business growth prospects caused it to make the reasonable business decision to reduce its sales positions in the southeast states, Petitioner lost out in a fair comparison on the merits of her performance compared to the other salesperson’s performance. Petitioner’s flagging job performance evident from 2011 forward, while not bad enough to warrant immediate action to terminate her, was not good enough to withstand comparative assessment with Mr. Patton. Petitioner’s view that the choice to retain Mr. Patton must have been a pretext for discrimination or retaliation is in keeping with Petitioner’s inflated view of her own performance. At the same time, Petitioner’s view is also an unfair discredit to Mr. Patton, when the unrebutted evidence was that he was an excellent sales representative. Petitioner admitted that she knows nothing about the quality of his sales work or the quantitative achievements he garnered in just over one year with the company. Although findings on the subject of damages are unnecessary in light of the above findings, even if Respondent had been found guilty of unlawful employment practices, the undersigned would have to find that Petitioner failed to prove her actual economic damages that would have been caused by those employment practices. Petitioner did not present proof of her earnings, and offered only limited evidence of her attempts to mitigate damages with other income and efforts to look for a comparable job. Indeed, in Petitioner’s PRO, this shortcoming appears to be admitted because Petitioner requested an opportunity to submit support for damages. Petitioner’s opportunity to present evidence to support her case was at the final hearing before the evidentiary record closed. There was no request for a bifurcated hearing to address liability, followed by a separate evidentiary hearing on damages if needed. Thus, Petitioner had her opportunity, and failed to prove damages.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief by Petitioner, Donna Earley, against Respondent, Teleflex, Inc. DONE AND ENTERED this 2nd day of March, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 2nd day of March, 2017.
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, L.A. Wroten Company, Inc., is indebted to Petitioner for agricultural products purchased by Respondent Wroten from the Petitioner.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Respondent, L.A. Wroten Company, Inc., is a Florida corporation and a licensed dealer in agricultural products. During times material, Respondent Wroten possessed a surety bond issued through Respondent, Cincinnati Insurance Company. During times material, Respondent Wroten employed Grady Smith as a field representative, who is authorized to and on numerous occasions, purchased watermelons on Respondent Wroten's behalf. Petitioner is a producer of agricultural products, specifically watermelons. Petitioner has been a producer of melons for approximately 30 years. Petitioner has known Grady Smith, Respondent Wroten's representative, in excess of ten years and has had business dealings with Smith as a representative of Respondent Wroten on several occasions during 1991 and 1992. During May and June 1992, Petitioner sold five (5) loads of watermelons to Respondent Wroten. At issue here is the fifth load Petitioner sold to Respondent Wroten on June 6, 1992. All five loads of melons sold by Petitioner to Respondent Wroten were loaded and shipped over a short period of time, to wit, May 30-June 6, 1992. All of the melons came from the same field. On June 6, 1992, Grady Smith, acting as a representative of Respondent Wroten, agreed to purchase a load of royal sweet watermelons from Petitioner at 4 per pound. The load of "royal sweets" consisted of the following melons: Load #6138 57,700 pounds x 4 cents = $2,308.00. Beginning in 1991 and continuing through 1992, Petitioner and Smith, acting on Respondent's behalf, agreed to the sale of melons under an understanding that the sale and purchase was F.O.B. at Coleman, Florida, acceptance final at shipping point. The agreement also included an understanding that the Respondent would provide the trailers and pay all transportation charges for the melons. Pursuant to the agreement, payment for the melons was due "when they moved over the scale", i.e., as soon as the trucks were loaded and weighed or within the following day. Finally, the agreement between the parties was that title and risk of loss to the melons passed to Respondent Wroten at the time of shipment. Respondent Wroten 's representative Smith offered other producers and growers in the area identical terms under which they conducted their business with Respondent Wroten. On June 6, 1992, the "royal sweet" melons in question were loaded on trailers provided by Respondent Wroten. Respondent Wroten's representative Smith was present in the field as the truck was loaded and he inspected and "graded" the melons as they were loaded. Any melons which were not deemed acceptable to Smith were taken from the conveyor belt so that they would not be loaded. When the trailer was loaded, representative Smith accepted the load and indicated that the melons "looked good to him". Respondent Wroten has not paid Petitioner any of the amount claimed to be due for the melons in question. Respondent Wroten contended that the melons were "overripe" when they reached their ultimate destination on June 9, 1992. 1/ There is an industry practice whereby the producer or seller agrees to accept the risk of loss until the produce reaches its final destination and the products are sold. This practice is referred to as offering "protection" or "ride-the-load". Petitioner did not offer to Respondent, in this instance, any protection or otherwise "ride-the-load".
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department enter a final order requiring Respondent L.A. Wroten Company, Inc., be ordered to pay Petitioner the sum of $2,308.00. In the event that Respondent L.A. Wroten Company, Inc., fails to timely pay Petitioner as ordered, that Respondent Cincinnati Insurance Company be ordered to pay the Department the sum of $2,308.00 as required by Section 604.21, Florida Statutes and that the Department reimburse Petitioner. DONE AND ENTERED this 30th day of April, 1993, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1993.
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $39,167.58 for mangoes grown by Petitioner and picked and sold by Respondent southeast
Findings Of Fact Petitioner Marcus D. Alston d/b/a Alston Groves is a grower of mangoes in Goulds, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the mangoes, then takes 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 mangoes pays Southeast after receipt of the mangoes, Southeast ascertain's what prices were paid for the mangoes and then calculates its costs and pays the grower the difference. Between June 24 and August 9, 1988, Southeast sold 3,861.2 bushels of mangoes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's mangoes sold by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the mangoes, the percentage of the mangoes sold by Southeast which "graded out" for sale, and the amount of picking and inspection fees charged by Southeast. Although Petitioner claims he had a verbal contract whereby Southeast agreed to pay him a flat rate of $20 per bushel minus picking charges, his Complaint seeks payment based on prices ranging from $6 to $20 per bushel which he also alleges were the market prices quoted to him by Southeast. At final hearing, Petitioner took the position that he is not seeking reimbursement of $20 per bushel but for only the lesser per bushel prices. No competent, substantial evidence was offered to prove that the prices Southeast received for the mangoes were higher than those reflected in Southeast's records. Petitioner claims that 100% of each picking was high quality, saleable fruit. No competent, substantial evidence was offered to justify Petitioner's selection of 100% for all pickings. The 100% figure selected by Petitioner allows for no differences in the amount of marketable mangoes from each picking, and there is no evidence to support the proposition that no matter when during the season the mangoes were picked exactly 100% of them were marketable as top grade mangoes. Further, during final hearing, Petitioner testified regarding his low cull rate, thereby admitting he knew that his mangoes were not 100% marketable. Although Southeast's records erroneously reflect inspection fees paid by Southeast to be deducted by Southeast from the sale price of the mangoes, no inspection fees were actually paid by Southeast, and Southeast has not deducted any inspection fees from Petitioner's account in calculating the net amounts to be paid to Petitioner by Southeast. The parties have stipulated that Southeast is not entitled to deduct picking fees for those batches of mangoes which Petitioner picked himself and delivered to Southeast. Southeast's records reflect that no picking fees were charged to Petitioner for the mangoes grown by Petitioner and sold by Southeast relating to 19 of the 48 tickets at issue in this proceeding. As to the mangoes reflected in 13 additional tickets, at the conclusion of the final hearing the parties requested and were afforded additional time to jointly review the actual picking tickets (not offered in evidence) for the name of the picker on each ticket to ascertain if the picker was a member of Petitioner's crew, thereby entitling Southeast to no picking fee, or a member of Southeast's crew, thereby entitling Southeast to collect a picking fee. The parties were to then file a statement regarding which additional batches of mangoes were picked by Petitioner's own employees. The parties have failed to do so, and Petitioner offered no evidence regarding this point on which a Finding of Fact can be made. Southeast's accounting sheet contains a column entitled "Net Actual" which sets forth the figures Southeast claims it owes Petitioner for the mangoes represented by each picking ticket. The total for that column equals $35,874.68, the total figure which Southeast claims it owes Petitioner. Southeast has paid Petitioner a total of $28,888.51 for his mangoes. Therefore, Southeast owes Petitioner the additional amount of $6,986.17.
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 Marcus D. Alston d/b/a Alston Groves in the amount of $6,986.17 and that such monies should be paid to him within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31 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 31 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 Marcus D. Alston Alston Groves 14100 Southwest 232nd Street Goulds, Florida 33110 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 Respondent seeks by a two count administrative complaint to discipline Respondent's license. By Count I, Respondent is charged, under Section 489.129(1)(c) Florida Statutes, with violation of Section 455.227(1)(a) Florida Statutes by allegedly making misleading, deceptive, untrue or fraudulent representations in the practice of his profession. By Count II, Respondent is charged, under Section 489.129 (l)(d) Florida Statutes with willful or deliberate disregard in violation of the applicable building codes or laws of the state or of any municipalities or counties thereof by noncompliance with the escrow requirements of Section 501.1375(2) Florida Statutes and thereby violating Section 489.129(1)(m) Florida Statutes in that same constituted gross negligence, incompetence, of misconduct in the practice of contracting.
Findings Of Fact Respondent is a licensed contractor having been issued license number RB 0024983. Respondent is both qualifying agent and president of Pearson Construction Company, Port Charlotte, Florida. At all times material to the administrative complaint, Jack R. Malone was the sales manager for Pearson Construction Company. The complainant herein, John R. Vlasek was a salesman of Pearson Construction Company and had actual knowledge of the authority and duties of the various other employees of Pearson Construction Company at the time that the contract hereafter described was entered into and at all pertinent times thereafter. On or about April 12, 1984 John R. Vlasek was employed as a commission salesman for Pearson Construction Company. Vlaseck's responsibilities included the sale of model homes. He, like John R. Malone, was paid on a purely commission basis. Vlasek was employed with Pearson Construction Company until approximately June 1, 1984. On April 12, 1984 John and Marilyn Vlasek contracted with Peasrson Construction Company for the purchase of a home in Port charlotte, Florida. At the time the contract was entered into the home was approximately 75 percent complete. The contract specified a $2,000 escrow deposit on the purchase price of $68,500. On April 12, 1984, the Vlaseks provided Pearson Construction Company with a check in the amount of $1,800 toward the escrow deposit. The contract specified the deposit was to be held in escrow pending closing of the transaction. The Pearson Construction Company sales agent/sales manager, Jack R. Malone, negotiated and drew up this contract. The contract resulted from Mr. Malone filling in various blanks on a form he had obtained from a local stationary store. The original closing date of the transaction was projected as June 12, 1984. The contract referred to above was not contingent on the buyer obtaining financing. Pearson Construction Company also received from the Vlaseks a warranty deed for a lot in Port Charlotte Subdivision. In return, the Vlaseks received an allowance of $9,400 toward the purchase price of the home. Jack Malone negotiated and prepared the contract. However, Respondent also reviewed and signed the contract. In the course of negotiating the contract, John Vlasek understood that the $2,000 deposit would be maintained in escrow. However, the deposit was not placed in escrow as specified in the contract and as required under the terms of the contract. Instead, it was used by the Respondent in purchasing lighting fixtures, carpeting, tiling, and other accouterments in colors and styles selected by John R. Vlasek. Vlasek was to finance the purchase of the home by assuming an existing construction loan. The construction loan originated from First Federal Savings and Loan Association of Charlotte County and was in the name of Pearson Construction. On April 23, 1984, the Vlaseks executed the loan transfer commitment. The loan commitment was valid only for 45 days and expressly provided, "time is of the essence." By interpretation, this `.ould mean that the loan commitment from First Federal would be valid only until and including June 7, 1984. The loan balance was approximately $52,000 payable at an interest rate of 11.5 percent. After executing the loan transfer commitment, Vlasek realized that the commitment would expire prior to the June 12, 1984 closing date. Vlasek then notified Pearson Construction Company of the discrepancy between the expiration date of the loan commitment and the actual closing date. Upon being informed of the discrepancy, Jack R. Malone agreed to modify the closing date. Malone expressly modified the contract by changing the closing date from June 12 to June 1, 1984. Malone initialed the change on the Vlaseks' copy of the original contract. Although Respondent was not present at the time the contract was expressly modified, Vlasek subsequently informed the Respondent of the change of the closing date. When informed of the change, Respondent indicated the home would be substantially completed by June 1, 1984. Respondent and Jack Malone both testified with some elaboration that Jack Malone had no specific authority from Respondent or on behalf of Pearson Construction Company to make such contract modifications and that Vlasek had every reason to know that Jack Malone was without such specific authority. Vlasek testified that in addition to Malone being designated as sales manager for Pearson Construction Company, he personally observed Malone operating as manager and sales agent and that Malone had held himself out to be an officer of the corporation in his discussions with Vlasek. Malone was never an officer of Pearson Construction Company. Although there is some confusion in Respondent's mind as to when he was made aware that Malone had re-negotiated the contract, and although Respondent never formally executed or acknowledged an acceptance of the new contract terms, Respondent admits that before the change in the contract he told Vlasek that "I'd take care of it." He also admits telling Vlasek that he would get an extension on Vlasek's loan commitment and that such was a normal procedure. He admits making a phone call to the bank and states that he received a written letter extending Vlasek's loan commitment for 30 days. Jack Malone testified that the saw this letter signed by Tom Hannon, whom he knew to be an officer of the bank. Malone testified that he felt certain that Vlasek saw this letter while it was on his desk in the sales office. There is no credible explanation by anyone as to what became of this letter if it ever existed. Vlasek testified that he personally approached the bank concerning getting an extension but was informed that he would not get one. Vlasek testified that his loan commitment was never extended by the bank. There is no corroboration for these statements. Petitioner argues that Respondent only received an extension on the original construction loan to Pearson Construction Company, however that allegation or suggestion is also nowhere supported in the record. Without an extension, the original loan commitment would have expired on June 7, 1984 and the projected closing date remained at June 12, 1984. Vlasek knew this. Vlasek became concerned and made numerous attempts to obtain reassurance from Pearson Construction Company personnel that his home would be completed by the new closing date of June 1, 1984. Vlasek was repeatedly assured by Malone and other members of the construction team (not Pearson) that the home would be completed by June 2, 1984. Vlasek requested in mid May 1984 that the contract be rescinded. His reasons for doing so are part of the controversy. Vlasek testified that he wished the contract rescinded because he felt certain that the home would not be completed by the projected closing date of June 2, 1984. Malone and Respondent testified that Vlasek's dissatisfaction with the home under construction found its origin in his disappointment over Respondent's refusal to construct a home for Vlasek's daughter which would match Vlasek's specifications while not rendering Respondent a profit. There is considerable discrepancy in the testimony of the various witnesses concerning the condition of the house covered by the contract under consideration on June 1, 1985. For reasons relating to the candor and demeanor of the witnesses and the credibility and weight of their respective versions of the house's condition it is found that the house was not fully completed by June 1, 1984. According to Vlasek, as of June 1, the following items remaining to be completed were: the septic tank was not installed; the plumbing and lighting fixtures were not installed and the lot was neither sodded nor graded. This analysis is bolstered by the fact that on June 11, 1984 Pearson Construction Company contracted to sell the home to Mr. John Thompson. The contract price of $68,500 included an escrow deposit of $6,400. The closing date of this sale was July 11, 1984. The contract form utilized in this sale is identical to the contract form previously utilized with regard to Mr. Vlasek. On June 1, 1984, Vlasek met with Jack Malone after inspecting the construction site and requested the contract be rescinded because of Respondent's failure to timely complete the home. Malone fired Vlasek upon being informed of this request. The eventual sale to Mr. Thompson suggests the Vlasek contract was rescinded. Pearson Construction Company, Inc. and William P. Pearson constructed a total of 8, possibly 9, houses during the calendar year 1984. In most previous years he has constructed in excess of 20 houses per year. Respondent returned the unrecorded deed for the Vlaseks' $9,400 lot to them.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that the Construction Industry Licensing Board enter a final order assessing Respondent an administrative fine in the amount of $500 and suspending his contracting license for one year; provided however, the period of suspension shall be terminated upon the submission to the Board by Respondent of competent and substantial evidence that restitution of $2,000 has been made to John and Madilyn Vlasek. DONE and ORDERED this 20th day of December, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1985. APPENDIX Petitioner's Proposed Findings of Fact Accepted Accepted first sentence Accepted second sentence rejected as not supported by the record as a whole. Accepted. Sentences 1 and 2 are accepted. Sentence 3 is rejected as not supported by the credible competent substantial evidence in the record as a whole. Sentence 4 is accepted. Accepted. Accepted. Accepted. Sentence 1 and 2 are rejected as not supported by the credible competent substantial evidence in the record as a whole Sentence 3 is accepted. The remainder of the paragraph are accepted but rephrased and elaborated upon Sentence 1 is rejected as not supported by the credible competent substantial evidence in the record as a whole. Sentence 2 is accepted. Sentence 3 is rejected as not supported by he credible competent substantial evidence in the record as a whole. Sentence 1 is accepted. Sentence 2 is rejected as cumulative. Sentence 3 is accepted. Rejected as subordinate and unnecessary. Accepted. Respondent's Proposed Findings of Fact Accepted. Accepted. Accepted but the portions not specifically adopted are deemed subordinate and unnecessary. Accepted. Rejected as not supported by the credible competent, substantial evidence in the record as a whole. Sentence 1 is accepted. Sentence 2 is accepted but not adopted as not dispositive of any issue at bar. Accepted. Accepted. Accepted. Accepted. This proposal constitutes a conclusion of law and as such requires no ruling. This proposal constitutes a conclusion of law and as such requires no ruling. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 John C. Heekin, Esquire C-2 Olean Plaza 21202 Olean Boulevard Port Charlotte, Florida 33952 James Linnan, Executive Director P. O. Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301 ================================================================ =
The Issue Did Respondent Williams fail to make an accounting for and payment to Petitioner for the proceeds of agricultural products purchased by Ray Gene Williams d/b/a Williams Produce Company?
Findings Of Fact Petitioner Six L's grows watermelons in Collier County, Florida. It is therefore a producer of agricultural products in the State of Florida. Respondent Ray Gene Williams d/b/a Williams Produce Company is a dealer in agricultural products who engages in business in Florida. Respondent Hartford Accident and Indemnity Company is the surety for a bond posted by Respondent Williams to insure compliance with Section 604.20, Florida Statutes (1979). On May 26, 1980, Six L's sold 46,700 pounds of field run, crimson sweet, watermelons to Respondent Williams at a price of 5 1/2 cents per pound for a total cost of $2,568.50. The sale was negotiated between Mr. Charles Weisinger, a salesman for Six L's, and Mr. Larry DiMaria. Mr. DiMaria at that time was a purchasing agent for Respondent Williams. They agreed that the sale would be F.O.B. at Immokalee, Florida. On May 26, 1980 a truck under contract to Respondent Williams was loaded with 46,700 pounds of crimson sweet field run watermelons from the farm of Petitioner Six L's. The weight was verified by the Immokalee State Farmer's Market at 6:59 p.m., May 26, 1980. At that time Mr. DiMaria inspected the watermelons and accepted them on behalf of Respondent Williams. On the following day, May 27, 1980, Mr. DiMaria made payment for the watermelons by issuing check #465 drawn on the account of Williams Farms in the amount of $2,568.50, payable to Six L's Packing Company. Before Six L's could collect on the check, payment was stopped by Respondent Williams, and no payment for the watermelons has since been made by either Respondent. The final hearing in this case was initially noticed for December 4, 1980. At the request of Respondent Williams and with the agreement of Six L's it was continued to a later date. The final hearing was rescheduled for May 11, 1981 in Fort Myers, Florida at 10:00 a.m. At that time neither Respondent made an appearance. In order to give them time to appear the hearing was recessed until 10:30 a.m. At that time it resumed and was concluded at 11:30 a.m. with still no appearance by either Respondent. To the knowledge of the undersigned no attempt was made by the Respondents to request a continuance or otherwise explain their failure to appear.
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 finding Ray Gene Williams d/b/a Williams Produce Company indebted to Six L's Packing Company, Inc. in the amount of $2,568.50. DONE and RECOMMENDED this 12th day of June, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981.
Findings Of Fact Willie J. Woods is a farmer. He entered into an agreement with W. R. Ward, Jr., President of Growers Marketing Service, Inc. (GMS) concerning the disposition of watermelons which he had grown. The testimony of Woods and Ward concerning the nature of the agreement is conflicting. In the absence of a written contract, the nature of the agreement must be determined from the other documents surrounding their transactions. From these documents, it is determined that the agreement between the parties was not for the purchase of Woods' watermelons by GMS. The documentation surrounding the transactions by GMS, show that GMS was acting as a broker or middle man in introducing Woods' watermelons into the stream of commerce. According to Mr. Ward's records, each shipment was assigned a transaction number, and each sale from a lot of watermelons was also assigned a transaction number. The record of each of these transactions was examined in detail. Below each of these transactions is discussed, and where portions of the record are particularly pertinent, they have been copied and attached to this order for ease of reference. In some instances, the settlement statement has been reproduced and corrected to reflect what the actual charges should have been based upon the underlying record. A handwritten explanation of the adjusting entries has been added to these statements. Transaction number 1439: On June 4, 1991, Woods delivered 43,750 pounds of watermelons to GMS The documentation surrounding this transaction shows that GMS, sold the load of watermelons FOB Brooksville, Florida for a price of 14 cents per pound.The purchaser's driver transported the load from Brooksville to Canada where the purchaser "rejected" the load because the melons were immature. By purchasing the watermelons FOB Brooksville, the purchaser waived any right to reject the melons upon their arrival at their destination. Further, the only evidence of immaturity is an inspection report which states that the inspection was limited and may not reflect the condition of the whole load. The inspection report itself is hearsay. The dollar value of this load as stated in the Bill of Lading/Customs Declaration was $6,125.00. The cost of freight was not shown in the file because it was delivered FOB Brooksville and the costs were borne by the purchaser. The GMS's handling fee was 1 cent per pound or $438.00. GMS owed Woods $5,687.00 on transaction number 1439. GMS paid Woods $2,879 on this transaction. GMS still owes Woods $2,808 on this transaction. Transaction number 1424: On June 4th, GMS sold in behalf of Woods $4,320 pounds of watermelons for 20.25 cents per pound. W. R. Ward stated that the price was reduced from 15 to 5 cents per pound, and was a bookkeeping error. The file reflects the sales price for the 46,320 pounds of watermelons was $9,380. The file reflects that transportation on this load of watermelons was $1,683.00, and GMS, was entitled to 2.5 cents per pound for packing and 1 cent handling for a total of $1,621. The total expenses were $3,304.00 for transaction number 1424. GMS owed Woods $6,077.00 for transaction 1424, but only paid him $1,844. GMS still owes Woods $4,233 on this transaction. Transaction number 3534: On June 4th, GMS, handled a load of yellow meat watermelons weighing 4,071 pounds for Willie J. Woods. Subsequently, GMS sold portions of this load of watermelons in transactions number 1565, 1507, 1461, 1403, and 1476. On June the 6th, GMS sold 13,337 pounds of watermelons at 17 cents a pound for a total sales price of $2,267.29 in transaction 1461. On June 6th, Growers Marketing Service sold 18,909 pounds at 14 cents a pound for a total of $2,647.26 in transaction number 403. On June 7th, Growers Marketing Service sold 1,945 pounds at 22 cents a pound for a total of $427.90 in transaction 1476. On June 14th, Growers Marketing Service sold 5,347 pounds on transaction 1565 which were subsequently rejected because of severe decay. See, Dump Report dated July 5 in Transaction 1565. Growers Marketing Service showed no income nor expense to the grower on transaction 1565. Because these melons were not sold until June 14, it is possible that they decayed. GMS's treatment of the transaction on the settlement statement is contrary to the notes on transaction 1565 which treat is as a wash with no income or expense to Woods. The assessment of freight and handling charges was not inappropriate under the circumstances, and are disallowed. See, Corrected Invoice 3534 attached to this Order. The total revenue from the remaining transactions was $6,142. The expenses on the various loads total $2,285. GMS owed Woods $3,857 on this load, but only paid him $1152. GMS still owes Woods $2705 on this transaction. Transaction number 3541: On June 7, 1991, Growers Marketing Service handled 9,997 pounds of watermelons for Willie J. Woods on transaction number 1565. This load was sold to Castellini Produce on transaction 1565, discussed above, where it was rejected for excessive decay. The assessment of the freight charges and handling charges on this load which was handled 10 days after it was picked was inappropriate, and is disallowed. It is treated also as a wash in this transaction just as it was in 3534, and just as GMS treated it in transaction 1565. Transaction number 3546: On June 11th, Growers Marketing Service received 4,949 pounds of yellow meat watermelons from Woods. It subsequently sold these watermelons for Woods in transactions 1589, 1607, and 1613. Regarding transaction 1589, the Growers Marketing Service's settlement statement to Woods reflects that this transaction is subject to PACA Audit; however, GMS included the 14,121 pounds of watermelons in its settlement at a expense to Woods of 5 cents per pound on a sales price of 1.67 cents per pound. Because this transaction is still subject to audit, it was inappropriate to settle with the farmer. For purposes of this accounting, 1589 is not considered. In transaction 1607, GMS sold 16,775 pounds of yellow meat watermelons received from Woods on transaction 3546. Transaction 1607 and the funds received from the transaction are discussed in full below with regard to transaction 3548; therefore, it is not discussed or accounted for as part of transaction 3546. In transaction 1613, Growers Marketing Service sold 10,053 pounds of watermelons at 11.6 cents per pound for a total of $1,069.00. Expenses attributable to transaction 1613 were $554.00. Woods was entitled to $614.00 on transaction 1613; however, he was paid nothing on this transaction; GMS owes Woods $614 on this transaction. Transaction 1475: On June 11th, Growers Marketing Service received 45,050 pounds of watermelons from Woods. Growers Marketing Service asserts that the original price of these watermelons was dropped from 15 cents to 12 cents; however, the checkstub attached to the invoice shows a total payment to GMS of $7,298.10 at the original purchase price of 17.2 cents per pound. Growers Marketing Service's costs in this transaction were $2,358. Because this transaction clearly shows the original price was paid, it reflects adversely on creditability of the witnesses for Growers Marketing Service with regard to their testimony in other transactions that the original price was reduced due to fall in the market. Growers Marketing Service owed Woods $4,940 on transaction 1475, and paid him $4,484. GMS still owes Woods $456 on this transaction. Transaction number 1508: On June 11, 1991, Growers Marketing Service received 46,000 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these melons at a price of 10.25 cents per pound. Growers Marketing Service received $4,715.00 on transaction 1508 and had expenses in the amount of $2,259.00. Growers Marketing Service owed Woods $2,456.00 on transaction 1508, and paid Woods $2,284. GMS still owes Woods $172 on this transaction. Transaction number 1497: On June 11, 1991, Growers Marketing Service received 45,340 pounds of watermelons in this transaction. Growers Marketing Service sold these watermelons at 16.35 cents per pound and deducted freight of 4.35 cents per pound, showing a net sales price of 12 cents per pound. This resulted in sales revenue of $5,441 from which GMS deducted its 1 cent handling charge and an additional $4,750 listed as a harvesting advance. GMS paid Woods $204. GMS introduced no proof of a harvesting loan; however, Woods' complaint admits this loan. Nothing is owed to Woods on this transaction. Transaction number 3548: On June 12, 1991, Growers Marketing Service received 41,132 pounds of watermelons from Willie J. Woods. Subsequently, Growers Marketing Service sold watermelons received from Woods on this transaction in its transaction numbered 1613, 1607 and 1627. Growers Marketing Service asserts that 24,457 pounds of watermelons were rejected and destroyed on transaction 1607. The records regarding transaction 1607 show handwritten notation on the invoice that Growers Marketing Service received a total after expenses of sale of $3,286.00 on transaction 1607. In transaction 1613, Growers Marketing Service sold 10,032 pounds of watermelons at 11 cents a pound and in transaction 1627 Growers Marketing Service sold 7,899 pounds of watermelons at 7 cents a pound. The original settlement statement reflected incorrectly that Woods owed GMS $810. A corrected settlement statement on transaction 3548 is attached to this Order and reflects that Willie J. Woods was owed the amount of $1,019.00 in transaction 1607, $624.00 in transaction 1613, and $1,019.00 in transaction 1627. GMS paid Woods no money on this transaction, and owes Woods a total of $1,873. Transaction number 1527: On June 12, 1991, Growers Marketing Service received 50,080 pounds of watermelons from Willie J. Woods. Growers Marketing Service sold these watermelons for 17.35 cents per pound receiving a total of $8,689.00 less expenses of $2,441.00. GMS owed Willie J. Woods $6,248.00 on transaction 1527, and paid Woods $247. GMS owes Woods $6,001. Transaction number 1536: On June 12, 1991, Growers Marketing Service received 41,320 pounds watermelons from Willie J. Woods. Growers Marketing Service consigned these watermelons and received $2,078.00 less expenses of $1,473.00. Woods owed $605.00 from Growers Marketing Service on transaction 1536, and paid Woods $307. GMS still owes Woods $298. Transaction number 1535: On June 12, 1991, Growers Marketing Service received 43,240 pounds of watermelons from Willie J. Woods in this transaction. Growers Marketing Service subsequently sold these watermelons at 16.45 cents per pound receiving a total of $7,113.00 less expenses of $2,357.00. Growers Marketing Service owed Willie J. Woods $4,856.00 on transaction 1535, and paid Woods $2,802. GMS still owes Woods $2,054. Transaction number 1505: On June 13, 1991, Growers Marketing Service received 44,950 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold these watermelons for a total of $6,967.00 to a dealer in Canada. The dealer in Canada rejected the watermelons upon their receipt serving that they were overripe on June 15, 1991, when they were received. A Canadian agricultural inspection was ordered and conducted on June 21, 1991, which revealed that 28% of the melons showed decay. However, the inspection was not timely and the report is hearsay. GMS failed to exercise due diligence in obtaining a prompt inspection and seeking recovery in behalf of Woods. Therefore, after absorbing expenses of $2,747.00, Growers Marketing Service owed Woods $4,220.00 for his loss in this transaction. GMS paid Woods $1,250 salvage on the load; however, it still owes him $2,970. Transaction number 1520: On June 13, 1991, Growers Marketing Service received 45,940 pounds of watermelons from Willie J. Woods in this transaction. The front of the folder shows that Growers Marketing Service sold this load of watermelons to Winn Dixie in South Carolina for 12 cents per pound, or $5,513. Upon receiving the watermelons on June 15 1991, Winn Dixie rejected the melons because they were "cutting white, green fresh." See copy of front of file. Growers Marketing Service asked another broker to move the load, and that broker and Growers Marketing Service arranged to have the load inspected at its next destination, Staunton, Virginia. The truck broke down in route to Staunton, Virginia and did not arrive until June 18, 1991. The other broker described the melons as looking "cooked" on arrival. Growers Marketing Service charged Woods with freight on this load. Because Growers Marketing Service had a legitimate freight claim against the trucking company, yet charged the loss and freight charges to the grower, GMS owes Woods $5,940 less the salvage, freight and expenses totaling $2,125. GMS owes Woods $3,816. Transaction number 3553: On June 13, 1991, Growers Marketing Service received 29,478 pounds of watermelons from Willie J. Woods on transaction 3553. Subsequently, Growers Marketing Service sold these melons to various concerns realizing $3,450.76 on these sales. GMS's settlement statement with Woods on this transaction reflects a deficit on transaction 1505 of $822.50. According to the records reviewed by the Hearing Officer there was no deficit in transaction 1505; therefore, the deduction of $822.50 was inappropriate. Adding this money back into the amount due Woods, Woods should have received $1,615.74 on transaction number 3553. GMS paid Woods $675, and still owes Woods $941. Transaction number 3552: On June 13, 1991, Growers Marketing Service received 32,769 pounds of watermelons from Willie J. Woods on this transaction. A review of the records reflects that Growers Marketing Service subsequently sold 10,403 pounds of these melons at three cents a pound, realizing $312.09. Growers Marketing Service also sold 19 bins of these melons weighing 22,366 pounds for nine cents a pound for a total of $2,012.94. Growers Marketing Service's settlement statement reflects a packing charge of two and a half cents per pound for 22,366 pounds of melons that were in bins. This is excluded as an expense because the adjustment for packing charges was included in the Hearing Officer's recomputation of the price of nine cents per pound. Similarly, the price adjustment of one and a half cents per pound was included in the recomputation of the price and is therefore excluded. The settlement statement which is attached to this Order reflects total receipts of $2,325 and total expenses of $750. Growers Marketing Services owed Willie J. Woods $1,575 on transaction number 3552, and paid Woods $1,551. GMS owes Woods $24 on this transaction. Transaction number 3549: On June 13, 1991, Growers Marketing Service received 32,564 pounds of watermelon from Willie J. Woods on this transaction. Subsequently, Growers Marketing Service sold 4,008 pounds of watermelons at three cents a pound on transaction 1669, realizing $120.24 on the sale. Growers Marketing Service sold seven bins of watermelons weighing 8,400 pounds at $217.66 for each bin, realizing a total of $1,523.66 on transaction 1532. Growers Marketing Service sold 1,346 pounds of watermelon at eight cents a pound, realizing $107.68 on transaction 1678. Growers Marketing Services sold 18,810 pounds of watermelons at sixteen and a half cents a pound, realizing $3,104 on transaction 1530. The Growers Marketing Services' settlement statement on transaction 3549, corrected as indicated above, shows that Growers Marketing Services received a total of $4,855 on this transaction. Growers Marketing Services' statement reflects packing charges of four cents per pound for 24,164 pounds. This packing charge was not applicable because the melons are indicated to have been in bins, not in cartons. Further, the price adjustment of one and a half cents per pound on 18,810 pounds was included in the Hearing Officer recomputation of the price per pound. Taking into account these corrections, total revenue was $4,855, and the total expenses of Growers Marketing Services were $1,613. Growers Marketing Services owed Woods $3,242 on transaction 3549, and paid him $1,690. GMS still owes Woods $1,552. Transaction 3556: On June 13, 1991, Growers Marketing Services received 32,898 pounds of watermelons from Willie J. Woods on this transaction. Subsequently, Growers Marketing Services sold 2,086 pounds of these watermelons for 12 cents a pound on transaction 1622. Growers Marketing Services sold 2,096 pounds of these watermelons at 10 cents a pound realizing $210 on transaction 1575. Growers Marketing Services sold 1,983 pounds of these watermelons at 10 cents a pound realizing $198 in transaction 1647. Growers Marketing Services' settlement for transaction 3556 is attached to this Order and reflects an original price for these melons of 4 cents per pound; however, Growers Marketing Services sold 1,029 of these watermelons at 11.6 cents a pound in transaction 1613. The settlement statement, a copy of which is attached, is corrected to reflect the sales price of 11.6 cents a pound, and the resulting change in the monies received from $41.16 to $119. GMS sold 2086 pounds of melon for 12 cents per pound realizing $250 on transaction 1622. GMS sold 3,841 pounds of watermelons for 10 cents per pound realizing $384 on transaction 1707. Growers Marketing Services sold 21,862 of these watermelons at 7 cents a pound realizing $1,530 on transaction 1627. The total received by Growers Marketing Services was $2,691 less expenses of $1,952. Growers Marketing Services owed Willie J. Woods $739, and paid him $662 on transaction 3556. GMS still owes Woods $77. Transaction number 3557: On June 14, 1991, Growers Marketing Services received 20,013 pounds of watermelons from Willie J. Woods on this transactions. Subsequently, Growers Marketing Services sold 9,214 watermelons at 12 cents a pound on transaction 1616. Growers Marketing Services 3,418 pounds of watermelons at 3 cents a pound in transaction 1669. Growers Marketing Services sold three bins of watermelons weighing 3,525 pounds at 16.5 cents a pound and an additional 3,852 pounds of watermelons at 16.5 cents a pound in transaction 1530. This is a total of 16,162 pounds of watermelons. The Growers Marketing Service's settlement statement, which is attached, is corrected to show the correct number of pounds sold and the correct amounts of money received by Growers Marketing Service. Growers Marketing Service received a total of $3,301.50 for the sell of these watermelons. Concerning the expenses shown by Growers Marketing Service, the number of pounds handled is adjusted to show that 16,162 pounds was handled. In addition, the 4 cent packing charge for 16,484 pounds of watermelons is deleted since these melons were not packed in cartons but in bins. In addition, the 1.5 cent price adjustment for 3,525 pounds of watermelons handled in transaction 1530 is in the recomputation of the price. The corrected expense total is $254. Growers Marketing Service owes Willie J. Woods $3,048 on transaction 3557. GMS paid Woods $643; however, it still owes Woods $2,405. The total of the sums still owed Mr. Woods by GMS is $32,999.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the parties be notified of these findings, and GMS permitted the opportunity to pay to Willie J. Woods $32,999 within 30 days, and if GMS fails to settle with Mr. Woods, Mr. Woods should be permitted to obtain settlement from the Respondent's bond in the amount of $32,999, or to the limits of the bond. DONE and ENTERED this 29th day of July, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 29th day of July, 1992. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-1550 Willie J. Woods 1022 Piercewood Point Brooksville, Florida 34602 W. R. Ward, Jr., President Growers Marketing Srevice, Inc. Post Office Box 2595 Lakeland, Florida 33806 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether or not the Respondent failed to remit to Petitioner a payment for nursery products received.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings: Petitioner, Gramling Nursery, Inc. (Gramling), is a wholesale nursery (producer) which sells landscape plants and other nursery products from its facility located at 3402 South Redman Parkway, Plant City, Florida. Respondent, Landscape & Water Amenities, Inc. (LWA or Respondent), is a landscaper which maintains its principle office at 2453 South Third Street, Jacksonville Beach, Florida. During times material, LWA was the holder of agricultural bond number 06827 issued through American States Insurance Company in the amount of $10,000.00. Respondent, American States, is a surety company securing payments to producers of agricultural products supplied to LWA. On May 9, 1989, LWA submitted an application for credit to Petitioner. Petitioner approved LWA's credit application and issued a charge account with the following terms: All bills are due when the material is delivered and become past due the 10th of the month following the date of purchase. Delinquent accounts are subject to one and one-half percent per month (18% annually) service charge. Should any collection procedures become necessary, all costs, including reasonable attorney fees, are borne by the customer and venue will be in Hillsborough County. It is a condition of your account [that] you maintain an agricultural bond as required by state law and the bond amount will set your credit limit. On July 13 and July 28, 1989, Petitioner sold to LWA nursery plants on invoice numbers 24796 and 24834 in the respective amounts of $4,038.07 and $140.23, for the total sum of $4,178.30. Petitioner made at least six telephone calls in an effort to collect the payment for the nursery plants which it delivered to LWA and these efforts were all unsuccessful. By letter dated October 19, 1989, Petitioner forwarded, by certified mail, return receipt requested, a demand letter to Frank Timmons, president of LWA, for full payment of $4,397.81 to be received by October 27, 1989. Petitioner advised LWA that in the event that payment was not received, Petitioner would file against LWA's agricultural bond and take other necessary legal action to collect the debt. By letter dated November 21, 1989, Petitioner received a letter from Michael J. Marees, Esquire, which was addressed to all creditors of Landscape and Water Amenities, Inc., advising that his law firm had been retained to assist LWA "in winding up its affairs and conducting a voluntary liquidation of its remaining assets." In attempting to liquidate the remaining assets, to the extent that funds were reportedly available, attorney Marees made an across the board distribution of ten percent of the outstanding debt owed by LWA to all of its creditors. In this regard, Petitioner received a check in the amount of $439.78. By letter dated January 29, 1990, Petitioner advised LWA that the above-referred payment was applied to LWA's account in the form of interest ($401.82) and principal ($37.96) leaving a balance due on that date of $4,141.34. Petitioner received no further communiques from either LWA or American States.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Agriculture and Consumer Services, Bureau of License and Bond, issue a Final Order finding that Respondent, Landscape & Water Amenities, Inc., owes Petitioner the sum of $4,141.34, plus interest accruing at the rate of one and one-half percent per month from January 29, 1990. In the event Respondent LWA fails to pay this sum the Respondent surety shall be required to pay that amount from its agricultural bond pursuant to Section 604.21(8), Florida Statutes. DONE and ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. Copies furnished: Hugh M. Gramling, President Gramling Nursery, Inc. 3402 South Redman Parkway Plant City, Florida 33566 Clinton H. Coulter, Jr., Esquire Senior Attorney Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Frank Timmons Landscape & Water Amenities, Inc. 10445 Atlantic Boulevard Jacksonville, Florida 32225-6723 American State Insurance Company 500 North Third Street Indianapolis, Indiana 46204 Mallory E. Horne, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Doyle E. Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810
The Issue The issue presented for decision herein is whether or not the Petitioner is entitled to an award of $11,952 for payment of a shipment of tomatoes made to Respondent, Georgia Tomato Company, Inc.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, including the proposed ore tenus requests by Petitioner's counsel, I hereby make the following relevant factual findings. Petitioner, Corky Foods Corporation, is a diversified agri-business company engaged in, among other things, the sale of produce from one of its warehouses in Boynton Beach, Florida. On January 21, 1985, Pat Adams, a broker for Adams brokerage company in Bonita Springs, Florida, placed an order with Petitioner's salesman, Daniel Garcia, for a load of tomatoes from Georgia Tomato Company. The tomatoes were sold to Respondent, Georgia Tomato Company, on January 21, 1985. The invoice of these products (No. 18917) was dated January 23, 1985 and contained a total of 1,440 boxes. Respondent was allowed a $1 credit under the market price which amount reflects the amount of the initial claim by Petitioner against Respondent, Georgia Tomato Company; i.e., $25,560 less the credit of $1,440 for a total claim of $24,120. During this period of time, there was a freeze in South Florida which occurred on January 20, 1985 and the price of produce dropped substantially for products picked after January 20, 1985. The market value for tomatoes picked on January 19, 1985 was as follows: 5 x 6 #1 @ $18.00 6 x 6 #1 @ $16.00 6 x 7 #1 @ $14.00 This amount, less the $1 credit given to Respondent, Georgia Tomato Company, by Petitioner represents the amount initially claimed by Petitioner; i.e., $24,120. Respondent, Georgia Tomato Company, failed to pay Petitioner's invoiced amount which resulted in a complaint being filed by Petitioner against Respondent, Georgia Tomato Company, on March 4, 1985. Once that complaint was filed, Respondent, Georgia Tomato Company, tendered to Petitioner an amount of $12,168 which reduced the complaint by that amount leaving a balance now due and owing Petitioner of $11,952 based on its amended claim filed herein dated April 24, 1985. Respondent, Georgia Tomato Company, contends that it was overcharged on the amount of this shipment of tomatoes and attempted to substantiate its position by showing several invoices for tomatoes that it purchased subsequent to January 21, 1985. Daniel Garcia, Petitioner's vice-president in charge of marketing, determined the market price for the tomatoes shipped to Respondent, Georgia Tomato Company, on January 21, 1985. In doing so, he called brokerage houses in Homestead, Bonita Springs, and other brokers, including Pat Adams, the broker who purchased the tomatoes here in question on behalf of Adams Brokerage House, and established the market price as per the invoice sent to Respondent, Georgia Tomato Company. In addition, Mr. Garcia referred to the Southeastern Fruit and Vegetable Report, Volume 30, No. 17, which is a guide to the pricing information for fruit and vegetables in the southeast and which is relied upon to ascertain fruit and vegetable prices in this area. (Petitioner's Exhibit 1) This data supports Petitioner's claim for the amount invoiced to Respondent, Georgia Tomato Company. Respondent, Georgia Tomato Company, did not dispute the quality of the tomatoes shipped by the Petitioner. Respondent offered no other defenses against the amount claimed by Petitioner. Based thereon, it is herein concluded that the Petitioner is entitled to an award of the amount in its amended claim of $11,952.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Georgia Tomato Company, Inc., be ordered to pay Petitioner, Corky Foods Corporation, the amount of $11,952 as set forth in its amended complaint filed herein dated April 24, 1985, within fifteen (15) days of the date of entry of the Final Order by the Department of Agriculture and Consumer Services, Bureau of License and Bond. DONE and ORDERED this 9th day of October, 1985, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1985. COPIES FURNISHED: Roger C. Lambert, Esquire 250 South County Road, Suite 201 West Palm Beach, Florida 33480 Glenn Vaughn, General Manager Georgia Tomato Company, Inc. Building F State Farmers Market Forest Park, Georgia 30050 Joe Kight, Chief Bureau of License & Bond Department of Agriculture and Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32301 Continental Insurance Company Legal Section (License & Bond) 80 Maiden Lane New York, New York Robert Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Doyle Conner Commissioner Department of Agriculture The Capitol Tallahassee, Florida 32301
