The Issue The issue is whether to approve Coyote Land Company, Inc.'s (Coyote's) applications for renewal permits to continue construction and operation of two construction and demolition debris facilities and one solid waste processing facility located in Santa Rosa County, Walton County, and Bay County, respectively.
Findings Of Fact The Parties Coyote is a for-profit corporation registered to conduct business in the State of Florida. W. Todd Schweizer is the president of the corporation. Coyote owns and operates Coyote Navarre, Coyote West, and Coyote Disposal, which are seeking permit renewals. It also owns and operates a solid waste management facility known as Coyote East in Freeport, Walton County, which is now, along with two other Coyote facilities, the subject of an enforcement action in circuit court. See Department Ex. 20. However, Coyote East is not a party to this proceeding. (That facility's permit expires on March 4, 2013.) The Department is an administrative agency of the State which administers and enforces chapters 376 and 403, Florida Statutes (2010), and Florida Administrative Code title 62. Coyote Navarre The evidence indicates that the Coyote Navarre facility has a long history of not complying with Department regulations and orders. In September 2001, Coyote filed an application to transfer an existing permit for a construction and demolition debris disposal facility located at 3201 Five Forks Road, approximately 3.3 miles north of the U.S. Highway 98 and State Road 87 intersection, in Navarre, Santa Rosa County to an entity known as Coyote Navarre. The application was approved, with a permit expiration date of May 4, 2003. To address ground contamination at the facility, in November 2001, Coyote submitted to the Department a Contamination Assessment Plan. In May 2003, Coyote submitted a renewal permit application, which was approved on December 17, 2004. See Department Ex. 1. The new permit had a renewal date of December 17, 2009. Id. In September 2006, Coyote submitted a Site Assessment Report (SAR) to the Department that assessed benzene, arsenic, aluminum, iron, sulfate, and total dissolved solids (TDS) found in groundwater compliance monitoring wells at Coyote Navarrre in concentrations above allowable groundwater standards. The Department reviewed the SAR and advised Coyote by letter dated October 31, 2006, that the SAR was incomplete. In January 2007, Coyote notified adjacent property owners that groundwater contamination had reached beyond the property boundaries of its facility. During the years 2008 and 2009, Coyote did not submit groundwater monitoring results for the facility to the Department. The Department sent Coyote a renewal permit reminder letter on July 9, 2009. The letter reminded Coyote that the application must be submitted on or before October 18, 2009, to be considered timely and sufficient. Coyote eventually submitted an application on December 11, 2009. See Department Ex. 8. The application was deemed incomplete and a request for additional information was sent to Coyote. See Department Ex. 9. Coyote did not provide a response to the Department before the permit expired on December 17, 2009. On April 2, 2010, the Department issued its notice of intent to deny Coyote's permit renewal application. See Department Ex. 10. Besides the application being incomplete and untimely, the Department determined that based upon prior conduct by the applicant, Coyote is an "irresponsible applicant" within the meaning of rule 62-701.320(3). Id. Paragraph (3)(a) of the rule provides that an applicant is "irresponsible" if it "was subject to a state or federal notice of violation, judicial action, or criminal prosecution for activities that constitute violations of Chapter 403, F.S., or the rules promulgated thereunder, and could have prevented the violation through reasonable compliance with Department rules." If an applicant is deemed to be irresponsible, the rule provides that in determining whether an applicant has given reasonable assurances that Department standards will be met, the Department may also consider "repeated violations of applicable statutes, rules, orders, or permit conditions caused by a permit applicant after October 1988 relating to the operation of any solid waste management facility in this state." Fla. Admin. Code R. 62- 701.320(3). On December 9, 2010, the Department sent Coyote a letter informing it to cease and desist operations at Coyote Navarre because the facility's permit had expired. See Department Ex. 11. Because Coyote has continued to operate the facility without a permit, the Department has filed a complaint in circuit court. The outcome of that action is unknown. Besides the foregoing civil action, the Department filed a complaint against Coyote in circuit court on April 8, 2008, alleging that the facility had violated chapter 403 and rule chapters 62-210, 62-296, and 62-701 by causing pollution and failing to control objectionable odors at the facility. See Department Ex. 2. This case was later settled through a Stipulated Order approved by the Court on August 25, 2009, which required Coyote to install an air monitoring device at Coyote Navarre and provide the Department with air monitoring results. See Department Ex. 4. The results were submitted to the Department for the months of October, November, and December 2010. Another circuit court action was filed against Coyote in June 2009 alleging that the facility was causing groundwater contamination, that it failed to submit groundwater monitoring results, and that it failed to assess groundwater contamination or complete a SAR. See Department Ex. 5. A Consent Final Judgment was executed by the parties and approved by the Court on March 30, 2010. See Department Ex. 6. However, as of the date of the hearing, Coyote had failed to submit a SAR Addendum within 270 days of the entry of the judgment, as required by the Consent Final Judgment. Although given an opportunity to do so, Coyote presented no evidence at hearing in support of its application or to respond to the Department's reasons for denying the application. Coyote West Like Coyote Nararre, the documentary evidence indicates that the Coyote West construction and demolition debris disposal facility on Hatcher Cemetery Road, south of State Road 20, near Freeport, Walton County, has a history of not complying with Department regulations and orders. In 2002, Coyote filed an application for the transfer of an existing permit to an entity to be known as Coyote West. The Department approved the transfer of the permit, with an expiration date of February 19, 2004. Coyote West did not submit a permit renewal application and the permit expired in 2004. In April 2005, Coyote West submitted a new permit application, which was approved in October 2005. See Department Ex. 12. That permit had an expiration date of October 21, 2010. In November 2005, routine groundwater sampling at the facility indicated the presence of aluminum, iron, and sulfate in concentrations above groundwater standards. Coyote submitted a SAR to the Department in December 2006 and a SAR Addendum in April 2007. Although the Department advised Coyote in October 2007 that the SAR Addendum was incomplete, as of October 2010, Coyote had still not provided the requested information. See Department Ex. 21. Also, during 2008 and 2009, Coyote did not file groundwater monitoring results for the Coyote West facility. On April 28, 2010, the Department sent Coyote a renewal permit reminder letter, which reminded Coyote that its permit renewal application must be filed on or before August 22, 2010, in order to be considered timely. See Department Ex. 14. An application was filed by Coyote on August 20, 2010. See Department Ex. 16. On September 17, 2010, the Department issued its notice of intent to deny the application on the ground Coyote's prior conduct rendered it an irresponsible applicant as defined in rule 62-701.320(3). See Department Ex. 18. Although given an opportunity to do so, Coyote submitted no evidence at hearing in support of the application for renewal of the permit or to respond to the Department's reason for denying the application. Coyote Disposal In February 2002, Coyote filed an application with the Department seeking to transfer an existing permit for a solid waste processing facility located at 2101 East 9th Street, Panama City, to an entity to be known as Coyote Disposal. The application for a transfer of the permit was approved, with the permit having an expiration date of September 1, 2003. In August 2003, Coyote submitted a renewal permit application to the Department, which approved the application with a new permit expiration date of October 21, 2010. See Department Ex. 13. Coyote's January 2006 Semi-Annual Water Quality Report reflected aluminum, arsenic, iron, sulfate, and TDS in compliance monitoring wells at levels well above the allowable groundwater standards. After the Department confirmed these findings in September 2006, Coyote submitted a SAR in March 2008. The Department sent Coyote letters on May 20, 2008, and October 17, 2008, informing Coyote that the March 2008 SAR was incomplete. See Department Ex. 22. Coyote has never responded to these letters. On April 28, 2010, the Department sent Coyote a renewal permit reminder letter advising that an application must be submitted by August 22, 2010, in order to be considered timely. See Department Ex. 15. On August 20, 2010, Coyote filed its permit renewal application for Coyote Disposal. See Department Ex. 17. On September 17, 2010, the Department issued its intent to deny the application on the ground that Coyote's prior conduct rendered it an irresponsible applicant within the meaning of rule 62-701.320(3). See Department Ex. 19. Although given an opportunity to do so, Coyote presented no evidence at hearing in support of the application for renewal of the permit or to respond to the Department's reason for denying the application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the applications of Coyote Land Company, Inc., for renewal of permits 0005651-005-SO (Coyote Navarre), 0002039-005-SO (Coyote West), and 0007948-006-SO (Coyote Disposal). DONE AND ENTERED this 26th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 26th day of April, 2011. COPIES FURNISHED: Lea Crandall, Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Thomas M. Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 W. Todd Schweizer, President Coyote Land Company, Inc. 4 Laguna Drive, Suite 201 Fort Walton Beach, Florida 32548-3600 Rhonda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the intended award of the lease to Rouse and Associates should be set aside due to the competitive advantages obtained by this bidder prior to the submission of sealed proposals. Whether the consensus decision making approach used by the committee caused an unfair result when the evaluation criteria was reviewed. Whether the responses to the request for bid proposals in RFP No. 045-91 were arbitrarily evaluated by the review committee charged with the responsibility to make the evaluation on behalf of the user agency. Whether the Petitioner, Peter Tsokos, was the lowest responsive bidder who should be granted the award. Whether the current Notice of Intended Award should be approved.
Findings Of Fact Background In September 1990, the Department released its Request for Proposals (RFP) for a lease of over 5,900 square feet of office space for regional offices in Hillsborough County, Florida. This bid or RFP is known as RFP No. 045-91 for Lease Number 760:0286. The RFP was prepared on Form BPM 4136, a solicitation format prepared by the Department of General Services for use by all state agencies seeking full service leases. Within the general provisions of the RFP, potential bidders were advised that any questions concerning the specifications (except for electrical matters) should be directed to Kelvin Robinson, whose telephone number was listed behind his name. Any changes to the specifications were to be in writing, from the Bureau of General Services. All other, unilateral changes by bidders were void. In addition, the RFP explained that a bidder's preproposal conference would be held at 10:00 a.m. on September 14, 1990, in Room A436, Neil Kirkman Building, Tallahassee, Florida to answer questions prior to the submission of sealed bids on October 9, 1990. No telephone calls were received by Mr. Robinson regarding the bid specifications. No written changes were made to the specifications by the Bureau of General Services, and no one attended the preproposal conference. On October 9, 1990, timely proposals in response to RFP NO. 045-91 were received from the following bidders: Rouse, Tsokos, Donlon, Hidden River Corporate Park (Hidden River), and Theo Realty Investments (Theo). The bids were opened on this date. During the bid opening, the submission of Hidden River was declared unresponsive because the price quote was not a firm one, as required by the specifications. This left four bid proposals to be reviewed by the Department as the user agency. Shortly thereafter, a committee consisting of the construction projects administrator and a representative from each of the three bureaus that will occupy the planned regional offices, was appointed to decide the lowest and best bid. Arrangements were made for the committee to review proposals and inspect each facility on October 23, 1990. It became apparent during the planning of the physical inspections of the existing buildings that the proposal submitted by Theo was five blocks south of the boundaries set for location of the regional offices, as depicted in Attachment B of the RFP. This resulted in a determination that the bid was nonresponsive. Three proposals remained for review purposes. Prior to the visit to the first site, the other committee members were informed by the construction projects administrator that they were to share individual observations or impressions with each other during the committee evaluations later that day. There was one unusual occurrence during the inspection process. At the Tsokos facility one committee member remained outside the building by the car. She did not inspect the premises. Attempts by gentlemen with Tsokos to show her around the facility were rebuffed. Evaluation After physically inspecting each proposed facility, the committee reviewed the bid proposals and jointly developed a committee determination of the lowest and best bid. The eleven award factors set forth in the evaluation criteria published in the bid documents were used to make the decision. When the proposals were reviewed, none of the committee members noticed that Rouse had limited the availability of sixty exclusive off-site parking spaces to once a month in its bid proposal. The original RFP issued by the agency did not include such a limitation. When the award factors were totalled, the Rouse proposal had an overall score of ninety-five from an available total of one hundred points. This was the highest sore awarded, which caused the committee to recommend this proposal to the agency as the lowest and best bid. Petitioner Tsokos, the low bidder, challenges the intended award of the lease to Rouse based upon the consensus decision-making approach used to evaluate the proposals, and the scoring differential between Rouse and Tsokos on factors 2,4,5,7, 8,9 and 11 of the evaluation criteria. Tsokos received a total score of eighty-eight. Consensus Decision-making Approach The consensus decision-making approach used in the evaluation of these bid proposals does not conform to the procedures set forth in the Real Property Lease Manual promulgated by the Department of General, Services for use by state agencies during such an evaluation process. The lease manual is an advisory document which can be accepted or rejected by any user agency that is reviewing a lease proposal. The Department of Highway Safety and Motor Vehicles has been using the consensus decision-making approach in its evaluation of bids and bid proposals since it was recommended in July 1989 by Dwight Davis, Ph. D., an agency employee whose doctoral dissertation was on small group decision making. This approach has withstood a previous challenge during a bid protest proceeding. The construction project administrator has been consistently instructing committee members to use this approach to evaluate leases since January 26, 1990. The methodology was uniformly applied to each proposal during the evaluation which is the subject of this proceeding. Petitioner Tsokos contends that the committee member who chose not to inspect his facility did not want to relocate the new regional offices at this particular site. It is further hypothesized that the lower score awarded to Tsokos, in spite of his low bid, was the result of this committee member's bias. Petitioner's father, an expert in statistical analysis, opined that the consensus decision-making approach allowed all of the other members to discount the point award to Tsokos in deference to this one member. It was suggested that this deference occurred because the member was the only one from Tampa in addition to being the sole member who would be using the space. It was propounded that if the members had individually evaluated the proposals in writing before the final reckoning, as suggested in the Department of General Services' manual, this individual's bias would have been reduced, and the award would have been given to Tsokos. During the committee's evaluation of the eleven factors, each member was given the opportunity to announce the number he or she would individually award the bidder if the decisions were solely his or hers to make. If some members announced a number lower than others, the group would always record the highest number. Members who testified at hearing felt free to voice their own opinions during the deliberations. The process used by the committee would have reduced any bias in the scoring caused by the one member presumed to be biased by Petitioner Tsokos. The alleged bias was not established at hearing. Scoring Differentials The first criterion reviewed by the committee was the price of the rental. The present value methodology required by Rule 13M-1.029, Florida Administrative Code, was used. As Tsokos had submitted the lowest priced proposal, he received the full weight of 15 points that the user agency had decided to give this factor. Rouse received 13 of the 15 possible points. The point allocations were purely mathematical, and have not been contested in this proceeding. The second criterion addressed the conformance of the space offered to an efficient layout and space utilization. Pursuant to Rule 13M-1.015(3), the specifications were to be drawn in general terms to provide knowledge of the, agency's space requirements. They were not to be structured to favor any specific location or lessor. Under the space requirement criteria set forth in the specifications and Attachment H, it was apparent that the user agency wanted its floor plan to include the following: One reception area for all three bureaus. One large conference room and one large training room located in a manner that would not interfere with the work being done in any one particular bureau area. Separate areas for each bureau designed to allow public access without having to pass through areas where different bureau work was being conducted. In its response to the specifications, Rouse utilized the rough draft of a floor plan as forth in Attachment H. The shape of the existing building offered by Rouse was able to accept the proposed floor plan without any changes or modifications. As a result, Rouse and the other proposals that utilized the proposed floor plan, received the full 15 points allotted to this factor. The configuration of the existing building offered by Tsokos did not permit him to use the floor plan proposed by the agency. Instead, two alternative floor plans were submitted for consideration, as allowed within the specifications The first alternative was designed so that all members of the public seeking services from the Bureau of Mobile Home and Recreational Vehicle Construction and the Bureau of Emissions Control were required to pass through the open clerical area of the Bureau of Licenses and Enforcement to reach their destinations. The large conference room was also placed in back of the Bureau of Licenses and Enforcement. Use of the conference room by any of the three bureaus would require movement through the same open clerical area. To access the training room, a transgression of the boundaries of two bureaus would occur. The second alternative placed the clerical workers for two bureaus in the same common area. In order to reach the Mobile Homes and Recreational Vehicle Construction Bureau, the public had to walk through this large area. The training room, which was designed to contain a large number of people, required those using the room to move through all three bureaus. The committee members, who were familiar with the type of work to be done in the proposed space, determined that the alternatives proposed by Tsokos were inferior to the floor plan proposed by the user agency in the specifications due to the disruptive nature of the traffic pattern through bureau boundaries, and the lack of bureau boundaries at some locations. The deduction of three points due to the lack of efficiency and space utilization in the suggested floor plans was reasonable. The point allotment was based upon the polling of individual members regarding his or her point analysis. The highest number the members of the committee agreed to award was placed in writing on the synopsis sheet. All of the bid proposals were given the same evaluation as to criterion three. The full allotment of twenty points to all proposals was not contested at hearing. Criterion four addresses the effect of environmental factors, including physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of operations planned for the space. Members of the committee who testified at hearing gave Rouse the full fifteen points for this criterion because they liked the planned entrance to the offices, which was prominently located. In addition, the site inspection revealed that the sixty additional off-site parking spaces were in the same paved parking lot approximately five hundred feet from the facility. The Tsokos proposal was downgraded in this category because the planned entrance to the facility was on the side of the building. The entrance could not be seen from either of the roadways or most of the designated parking area. The down slope of the entrance below the street level was also a detractor due to traffic safety and concerns about flooding. The physical inspection revealed that only forty-eight to sixty-one parking spaces were available for use by the agency on this site. Three points were deducted by the committee based upon these detractors. At hearing, the Petitioner attempted to refute the analysis of the parking space shortage with a proposed site plan that showed eighty-eight parking spaces. While this plan shows that Petitioner Tsokos' proposal statement that eighty-one spaces were available for agency use was made in good faith, its probative value for a comparative review was effectively refuted by the Department at hearing. The mixing of angular, perpendicular, and parallel parking spaces in the parking area for the two buildings at the Tsokos location is unworkable, as indicated by the committee in its evaluation. The award of twelve of fifteen points to Tsokos for criterion four by the committee was reasonable and has been supported by competent, credible evidence. The committee's determination that one point should be removed from the Tsokos score for criterion five misconstrued the meaning of "street-level space" as set forth in the specifications. The fact that the property sloped down from the road and was below the adjacent roads was already addressed in criterion four. The proposal should not be penalized twice for this condition. The facility offered by Tsokos was clearly only one story in height, and should receive the same five point allotment awarded to all one story buildings offered in response to this RFP. Criterion six deals with the frequency and availability of satisfactory public transportation within one block of a facility. The full allotment of five points to all of the responsive proposals was not contested at hearing. Petitioner Tsokos was awarded five out of five points for criterion seven due to the proximity of the building to dining facilities. Rouse was downgraded two points in this category. The reason for the downgrade was that while restaurants were located within a convenient driving radius to the Rouse facility, there were no restaurants within two blocks as required by the evaluation criteria. The closest restaurant readily observed by the committee members was CDB Restaurant, which is approximately nine tenths of a mile away. Dining facilities at the university were not contemplated when the assessment was made. There was no consideration given to university eateries posthearing because public access on the campus is limited by the use of visitor passes, limited parking, and the fact that the dining facilities were designed to accommodate and service university needs as opposed to the needs of the general public The committee's decision to give Rouse only sixty per cent of the available points for proximity to dining facilities was reasonable because the purpose behind the criterion was to allow clients and personnel convenient access to restaurants. While these people cannot walk to surrounding restaurants as contemplated by the evaluation criteria, they can still dine quickly and conveniently in the locale. Criterion eight deals with the proximity of the site to the clients being served. Rouse was given all five points in the assessment of this factor while Tsokos was given only three points. Committee members who testified at hearing chose to award three points to Tsokos for proximity to clients because it was believed that staff would have difficulty giving directions to those clients who were unfamiliar with the area. It was also believed that the facility was not easily accessed from the major highways. The reasons given for the lower point assessment of the Tsokos proposal for criterion eight were arbitrary and irrational. Pursuant to the proposal specifications, these regional offices could be anywhere within the boundaries of the location corridor depicted in Attachment B of the RFP. The Tsokos proposal was within the corridor, and the evidence presented at hearing demonstrates that it is just as easy to give telephone directions to the Tsokos location as it would be to describe the Rouse or Donlon locations. In addition, the site is just as accessible as the Rouse facility or the Donlon facility from the major roads. Accordingly, the full five points available for this criterion should be awarded to Petitioner, as they were to the other two proposals within the location corridor The next item evaluated in criterion nine was the proximity of the site to other Department activities, as well as other public services. The Rouse location was given the full award on this item because a new Florida Highway Patrol facility is being built directly behind the Rouse location. The committee members gave this the highest rating because the Florida Highway Patrol is in the same Department. It was reasoned that members of the public who have business with one branch of the Department will often have business with another branch. Additional weight was given to the Rouse location because the University of South Florida is directly across the street. The Tsokos location was near the Central Regional Operations Bureau Office of the Florida Department of Law Enforcement. Proximity to this public service was not given weight because the committee was aware that the agency was moving to a new location within a short period of time. The Tsokos facility is near the City Hall and Police Department for the City of Temple Terrace. Two of the available five points were given to the Tsokos proposal because of this proximity. The committee was justified in this low point allocation because these regional offices will serve clients from seven counties. A significant number of the Department's clients will not need the city services near the Tsokos location. All of the bid proposals were given the same evaluation as to criterion ten. The full allotment of five points was not contested at hearing. Criterion eleven relates to the option period-rental rate proposed within projected budgetary restraints. The point allocations were purely mathematical. Evidence contesting the point allotment was not presented in this proceeding. Final Tabulation of Award Factors and Comparison Based upon the evidence presented at hearing, the score of ninety-five awarded to Rouse is supported by the greater weight of the evidence. The original score of eighty-eight to Tsokos was improper for items five and eight of the evaluation criteria. This score should be revised to show an award of ninety-one points to Tsokos. Based upon the revised scoring, the Rouse proposal still received the highest number of total points under the weighted evaluation criteria and was properly selected as the lowest and best bid by the committee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Tsokos protest in RFP NO. 045-91 be denied due to insufficient evidence, and that the lease be awarded to Rouse as the lowest and best bidder. DONE and ENTERED this 4th day of 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 4th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-8027BID Petitioner's proposed findings of fact are addressed as follows: Accepted that the specifications were altered. See HO #12. Reject conclusion. Rejected. Speculative. Rejected. Speculative. Rejected. Insufficient proof. Accepted. See HO #15. Rejected. Contrary to fact. See HO #16. No finding seven listed. Rejected. Contrary to fact. See HO #23. Rejected. Contrary to fact. See HO~#23. Rejected. Speculative. Rejected. Contrary to fact. Improper shift of burden of proof. Accepted. See HO #36. Accepted. See HO #36. Accepted. Accepted. See HO #37. Rejected. Speculative. Rejected. Improper conclusion. Rejected. Irrelevant. Rejected. Contrary to fact. See HO #37. Rejected. Uncorroborated hearsay. Rejected. Uncorroborated hearsay. Rejected. Uncorroborated hearsay. Rejected. Uncorroborated hearsay. Rejected. Assumes facts not in evidence. Rejected. Argumentative and based on rejected legal conclusion. Accepted. See HO #40 - #41. Accepted. See HO #42. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #45 - #48. Accepted. See HO #48. Accepted. See HO #44. Accepted. See HO #44. Rejected. Irrelevant. Accepted. See HO #44. Rejected. Speculative. Accepted. Rejected. Irrelevant. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #26 - #32. Accepted. Rejected. Contrary to accepted evidence. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #32 and #36. Accepted. Accepted. Accepted. See HO #38. Accepted. Accepted. Accepted as to Tsokos. See HO #51. Rejected. Contrary to fact. See HO #32, #36 and #51. Accepted. See HO #38. Rejected. Speculative. Rejected. Contrary to fact. See HO #43 - #44. Rejected. Contrary to fact. See HO #45 - #48. Rejected. Contrary to fact. See HO #58. Rejected. Contrary to fact. See HO #52. Respondent's proposed findings of fact are addressed as follows: 1. Accepted. 2. Accepted. See HO #1 and #11. 3. Accepted. 4. Accepted. See HO #34. 5. Accepted. See HO #8. 6. Accepted. See HO #3 and #4. 7. Accepted. See HO #5. 8. Accepted. See HO #6 and #7. 9. Accepted. 10. Accepted. See HO #32. 11. Accepted. See HO #44. 12. Accepted. 13. Accepted. See HO #13. 14. Accepted. See HO #15. 15. Accepted. See HO #9. 16. Accepted. 17. Accepted. See HO #16. Rejected. Improper summary. Accepted. See HO #7. Rejected. Cumulative. Accepted. See HO #13. Accepted. See HO #8. Accepted. See HO #26 and #28. Accepted. See HO #32. Accepted. See HO #36. Accepted except for the bathroom relocation issue which is irrelevant. See HO #28. Accepted. See HO #34. Accepted. Accepted, except for the last sentence. Speculative. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #37. Accepted. See HO #35. Rejected. Speculative. Accepted. See HO #35 - #37. Accepted as committee reasoning. However, See HO #38. Accepted. See HO #40. Accepted. Rejected. Irrelevant. See HO #41. Rejected. Contrary to fact. See HO #43 - #44. Rejected. Irrelevant and begs the question. Accepted. See HO #45 and #48. Accepted. See HO #45 and #46. Rejected. Argumentative. The weight to be given testimony is determined by the hearing officer. Rejected. Argumentative and improper argument. COPIES FURNISHED: James W. Anderson, Esquire LEWIS & McKENNA 820 East Park Avenue, Suite 204 Post Office Box 10475 Tallahassee, Florida 32302 Enoch J. Whitney, General Counsel Judson Chapman, Esquire Department of Highway Safety and Motor Vehicles A432 Neil Kirkman Building Tallahassee, Florida 32399-0500 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Robert Goldschmidt Rouse & Associates - 4001 Fowler Avenue Limited Partnership 4033 East Fowler Avenue Tampa, Florida 33617 Barry Schneirov Rental Properties Trammell Crow Company 5405 Cypress Center Drive, Suite 120 Tampa, Florida 33609
The Issue Whether or not Petitioner (complainant) is entitled to recover $10,134.72 or any part thereof against Respondents dealer and surety company.
Findings Of Fact This cause is governed by the four corners of the November 2, 1993 complaint. It involves only two loads out of twenty loads of potatoes. Petitioners are growers of potatoes and qualify as "producers" under Section 604.15(5) F.S. Respondent A.F. Business Brokerage is a broker-shipper of potatoes and qualifies as a "dealer" under Section 604.15(1) F.S. A.F. Business Brokerage, Inc. is a corporation engaged in the business of brokering (purchasing and re-selling) potatoes and operates under one or more of the following names: A.F. Business Brokerage, Inc., Washburn Corp., and/or Ben Albert Farms. The contract at issue herein listed the name of the broker as "Albert Farms d/b/a Washburn Corporation." Payments made by the Respondent broker to Petitioner for potatoes received under the terms of the contract were in the form of checks drawn on the account of A.F. Business Brokerage, Inc. For purposes of this litigation, "Albert Farms d/b/a Washburn Corporation," and "A.F. Business Brokerage, Inc." will be considered as describing the same party. Although Titan Indemnity Company received notice of the filing of Petitioner's Complaint and failed to request a formal hearing pursuant to Section 120.57(1) F.S., no evidence or admission was presented at formal hearing which would permit a finding that Titan Indemnity Company was surety for Respondent A.F. Business Brokerage at all times material. That is not to say that Titan Indemnity is found not to be the surety for Respondent A.F. Business Brokerage. The foregoing finding only means that this case in the administrative forum cannot resolve the issue of indemnity as between Respondents because insufficient evidence on that issue has been presented, and it may be necessary for that issue to be litigated in Circuit Court pursuant to the surety contract/bond, if any. On or about December 28, 1992, Petitioner and Respondent broker confirmed in writing the terms of a telephoned agreement, whereby Petitioner agreed to sell and the broker agreed to purchase twenty truckloads of potatoes. The agreement/contract, prepared by Respondent broker was titled "Standard Confirmation of Sale". It specified in pertinent parts: "Unless the seller or buyer makes immediate objection upon receipt of his copy of this Standard Confirmation of Sale, showing that contract was made contrary to authority given the Broker, he shall be conclusively presumed to agree that the terms of sale as set forth herein are fully and correctly stated. Sale made (F.O.B. or Delivered): F.O.B. Special Agreement, if any: Potatoes shipped are for potato chipping and must cook on arrival to be subject to this agreement. This confirmation is issued and accepted in agreement with, and subject to the rules and regulations and definitions of terms as recognized and approved by the U.S. Secretary of Agriculture under the Perishable Agriculture Commodities Act. *4 Truckloads chipping potatoes, April $7.75 FOB 16 Truckloads chipping potatoes, May, June $7.00 FOB *Loads not shipped by seller in April apply to May, June portions of agreement." (Petitioner's Exhibit 1) Under Section 672.319 F.S., The Uniform Commercial Code, the abbreviation "F.O.B." means "free on board" and is interpreted differently, dependent upon what words follow the abbreviation. Regardless of what words follow the abbreviation, the term "F.O.B." places shipping responsibility and shipping costs upon a "seller" as opposed to the one accepting delivery, the ultimate buyer. Testimony and arguments by the parties at formal hearing and in their respective proposals suggest that if "F.O.B." had been used by itself, in place of the word "delivered," and without more, the contract would have signified that sale herein occurred at the time of pickup in the field by the broker/shipper, and that title to the produce would have transferred from the producer to the broker/shipper at that point in time as opposed to title transferring at the time the broker/shipper delivered the produce to its ultimate destination. However, here, the Respondent broker elected the term "F.O.B." and rejected the term "Delivered," and also added the requirement that the potatoes cook to chips at their destination. Petitioner made potatoes available for pick up by the broker at Petitioner's fields beginning in May, 1993 in accord with the contract and the price specified therein. Without incident, the broker picked up and accepted the first eighteen loads of potatoes which it had agreed to purchase. All arrangements for shipment of the potatoes at issue were controlled and paid for by the Respondent broker. These arrangements made and controlled by the Respondent broker included the method of transportation, the exact date when the potatoes would be picked-up from Petitioner's fields, the place to which the potatoes ultimately would be transported, and the time during which the potatoes would remain "in transit". This unilateral control by the broker suggests that the parties were treating the potatoes as if title thereto had passed to Respondent broker when it picked them up in Petitioner's field and clearly shows that the broker had control over what condition the potatoes were in when they reached the retailer at their ultimate destination. As of the time Petitioner began to honor the contract by making potatoes available for pick up by the broker, Petitioner could have sold potatoes on the "open market" for $25.00 per hundred-weight instead of the $7.00 per hundred-weight called for under the terms of the contract. Nonetheless, Petitioner honored its contract with Respondent broker by making potatoes available to the Respondent broker and by reserving a sufficient amount of Petitioner's crop so as to fulfill the entire contract with Respondent broker. As of the time the Respondent broker made arrangements for pick up of the last two loads of potatoes, potatoes on the open market were selling for $1.75 per hundred-weight, meaning that the broker was paying Petitioner more for potatoes under the terms of their contract than the broker would have had to pay to purchase similar potatoes on the "open market". Respondent broker contacted Petitioner immediately prior to June 17, 1993 and asked that Petitioner cancel the contract between them because of the reduced price potatoes were yielding on the open market. Petitioner rejected the proposal. This strongly suggests that the Respondent broker felt bound by the contract to pay Petitioner at the rate agreed under the contract regardless of what rate the broker sold the potatoes for upon delivery and also suggests that the parties were treating the potatoes as if title to the potatoes passed to the Respondent broker when the broker picked up the potatoes in Petitioner's field. The date selected by the Respondent broker for pick up of the last two loads of potatoes was unusual. The broker picked up the last two loads of potatoes on Thursday, June 17, 1993. However, the Respondent broker's standard practice was not to pick up potatoes in St. Johns County, Florida on Thursdays because of the increased risk that potatoes loaded in the fields on Thursdays would reach the ultimate retail destination assigned by this particular broker at a time when processing plants in that locale would be closed for the weekend, thereby increasing the time the loaded potatoes would remain enclosed in the transport truck and accordingly increasing the risk of spoilage. The method of transport selected by the Respondent broker for the potatoes loaded June 17, 1993 was also unusual and destined to increase the risk of spoilage. On that occasion, the broker sent "pigs" a/k/a "piggy-back rail cars" rather than conventional trucks or refrigerated trucks. On June 17, 1993, Petitioner also loaded two trucks for H.C. Schmieding Produce, a broker not involved in this litigation. Petitioner's potatoes loaded upon Schmieding's trucks and the potatoes loaded on Respondent broker's trucks came from the same fields and "lot" of potatoes. One of Schmieding's trucks was loaded before Respondent broker's trucks, and one of Schmieding's trucks was loaded after Respondent broker's trucks. The potatoes purchased and loaded by Schmieding on June 17, 1993 were received in good condition in Illinois and Tennessee, respectively, and Petitioner received full payment for them. Respondent broker's loads were ultimately refused in Massachusetts. June 21-23, 1993 were all weekdays, and presumably "work days." The best date that can be reconstructed for the date that the potatoes in question were dumped by the Respondent broker is June 22 or 23, 1993, so their "arrival" in Massachusetts must have preceded dumping. By undated letter postmarked June 28, 1994, the Respondent broker notified Petitioner of the rejection of the two loads of potatoes picked up by the Respondent broker from Petitioner on June 17, 1993. The letter also informed Petitioner of the broker's intent to assess charges for inspection and dumping of the potatoes and of the broker's intention not to pay Petitioner for the potatoes. This letter was the first notice received by Petitioner advising of the rejection of the two loads of potatoes in question, 1/ and contained a copy of a U. S. Department of Agriculture Inspection Report dated June 22, 1993 showing 60-100 percent soft rot. 2/ Petitioner's principal had left his home and place of business on June 24, 1993, a date clearly 24 to 48 hours after dumping had already occurred and probably much longer after arrival of the potatoes in Massachusetts. Petitioner did not learn of the Respondent broker's June 28, 1993 letter or the Inspection until July 4, 1993. By July 4, 1993 Petitioner had terminated all harvest operations and was not able to tender two replacement loads of potatoes to the broker. As of the time that Petitioner received the June 28, 1994 notice that the two loads in question were being rejected, the Respondent broker had already disposed of the potatoes. Consequently, Petitioner had no opportunity to avail itself of any alternative or other option regarding disposition of the potatoes. Prompt notification of the broker's rejection of the two loads of potatoes might have allowed Petitioner to negate its losses by marketing the potatoes at a reduced price to other processing plants in Massachusetts or to tender two replacement loads of potatoes to the Respondent broker. After all deductions and calculations, the rejected two loads of potatoes resulted in damages of $10,135.47 to Petitioner producer.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Agriculture enter a final order that: Awards Petitioners $10,134.42 and binds A.F. Business Brokerage Inc. d/b/a Albert Farms d/b/a Washburn Corporation to pay the full amount to Petitioner. Sets out any administrative recourse Petitioner or Respondent broker may have against Titan Indeminity Co. RECOMMENDED this 19th day of July, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1994.
The Issue Whether respondents or either of them owe petitioner money for two carloads of potatoes shipped on June 12, 1990?
Findings Of Fact On June 12, 1990, Stone, Inc. loaded 472.4 hundredweight of Atlantic potatoes in Hastings, Florida, on a truck owned by Gemini Transportation Services (Gemini) of Greensburg, Pennsylvania, for shipment to Mike Sell's Potato Chip Company (Sell's) in Dayton, Ohio. Stone, Inc. assigned this load number AT 1263232. The same day Stone, Inc. also loaded in Hastings 477.9 hundredweight of Atlantic potatoes on a truck owned by Ranger Transportation, Inc. (Ranger) of Jacksonville, Florida, for shipment to Sell's plant in Ohio. Stone, Inc. assigned this load number AT 1263235. Both loads evidently reached the potato chip plant in Dayton early on June 14, 1990. At half past nine that morning, Sell's notified Stone, Inc. by telephone that it was accepting 76 hundredweight of load No. AT 1263235, but that it was refusing the rest of load No. AT 1263235, and all of load No. AT 1263232. Stone, Inc. did not exercise its right to demand that an independent agricultural inspector examine the potatoes to determine whether their condition justified Sell's refusal to accept them. Instead, on the afternoon of June 14, 1990, Mr. Stone called Frank R. Thomson, Jr., vice-president of Black Gold, and told him Sell's had rejected the potatoes, but that Sell's sometimes rejected loads for no good reason. There was no discussion of price or of freight charges. Mr. Thomson has never bought potatoes rejected by a buyer and knows of no other broker who has, at least without seeing them, but he agreed on Black Gold's behalf to take both loads on consignment. He told Mr. Stone he would "try to find a home for the potatoes." Mr. Thomson told Mr. Stone he would send one load to Bockers Potato Chip Plant and the other to Howard Dennis' farm. For several years, the standard brokerage fee has been $0.25 a hundredweight, if a sale is consummated, but no mention was made of this in the telephone conversation. Customarily the grower bears the expense of transporting rejects. Black Gold directed load No. AT 1263232 to Bockers Potato Chip Plant in Fulton, Missouri; and, when Bockers turned it down, to a repacker, Neumiller rarms, Inc., in Savanna, Illinois. There it was "dumped because of excess rot and breakdown," Respondent's Exhibit No. 1, or so Black Gold was eventually advised. Vicki McDonald said the potatoes had been "running out the back of the truck," when they reached the Bockers plant. Black Gold directed load No. AT 126235, i.e., the 401.9 hundredweight that Sell's had not accepted, to the H. Dennis Potato Farm (Dennis), a repacker in Wauseon, Ohio. As was customary, Dennis reportedly unloaded the potatoes thought suitable for packaging for retail sale, and placed them in coolers to arrest spoilage. Dennis told Black Gold that soft rot was a problem on the day it said the potatoes arrived or the day after. At least nine days to two weeks later, but before August 10, 1990, Dennis told Black Gold, Dennis "ran" the potatoes on a conveyor belt, and concluded they were unusable. Under Stone, Inc.'s agreement with Sell's, Sell's reimbursed Stone, Inc. in full for freight charges incurred on loads Sell's accepted, or at the rate of $2.50 per hundredweight for partially accepted loads, but not at all for loads totally rejected. Stone, Inc. paid Gemini $2,287.75 for freight on load No. AT 126232. Of this sum, $1,181 was charged for shipment to Sell's, while $1,106.75 was charged for detention at Dayton, Ohio, shipment to Fulton, Missouri, and thence to Savanna, Illinois. Stone, Inc. paid Ranger $1,177.25 for freight on load No. AT 126235. Ranger did not charge extra to take the potatoes from Sell's to Dennis. Stone, Inc. deduced that load No. AT 126235 had reached Wauseon, Ohio, from Ranger's invoice, which it received shortly after June 19, 1990. But Stone, Inc. was not told the final disposition of either load until August 21, 1990, when Black Gold advised that load No. AT 126232 had been dumped. In mid-June of 1990, the market price for Atlantic potatoes in bulk, free on board in Hastings, was $2.75 per hundredweight. Black Gold was never paid anything on account of either load. Attached to its answer are statements purportedly from both repackers attesting to excess rot. `CONCLUSIONS OF LAW Since the Department of Agriculture and Consumer Services referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." Section 120.57(1) (b)3., Florida Statutes (1989). As a "person . . . engaged within this state in the business of purchasing, receiving or soliciting agricultural products from the producer," Section 604.15(1), Florida Statutes (1989), Black Gold is a dealer in agricultural products for purposes of Chapter 604, Florida Statutes, required to be licensed by Sections 604.17 and 604.18, Florida Statutes (1989) and, as a condition of licensure, to "deliver to the department a surety bond or certificate of deposit in the amount of at least $3,000 . . . ." Section 604.20(1), Florida Statutes (1990 Supp.). Potatoes are "agricultural products" because they are "natural products of the farm, nursery, grove [or] orchard," Section 604.15(3), Florida Statutes (1989), and Stone, Inc. is a producer within the meaning of Section 604.15(5), Florida Statutes (1989). Petitioner has the burden to establish the allegations of the complaint by a preponderance of the evidence. J.T. Cochran and R.B. Strange d/b/a C & S Tree Farm v. Beach Landscaping, Inc. d/b/a Landscape Technologies and Regency Insurance Co., No. 90-7494 (DOAH; April 19, 1991); Pine Stand Farms, Inc. v. Five Brothers Produce, Inc. and Florida Farm Bureau Mutual Insurance Co., No. 90-6460A (DOAH: Mar. 18, 1991); Florida Farm Management, Inc. v. DeBruyn Produce Co. and Peerless Insurance Co., No. 90-2966A (DOAH; Cct. 23, 1990). Black Gold has not proven any written agreement, but relies on the verbal agreement it alleged. See J.R. Sales, Inc. v. Dicks, 521 So. 2d 366, 369 (Fla. 2d DCA 1988). In its complaint, Stone, Inc. alleges that Black Gold "agreed to purchase the potatoes at . . . $2.75 cwt plus freight," and contends, "If there was a problem with either or both loads we should have been notified timely to allow us to market the potatoes elsewhere." But the evidence did not establish either that Black Gold agreed to purchase the potatoes or that belated notice caused petitioner any loss attributable to an inability to market the potatoes after their rejection in Ohio, Missouri and Illinois. In its post-hearing submission, Stone, Inc. argues that respondent, as a grower's agent, was "required to give an account of sale within 48 hours," citing Section 604.22, Florida Statutes (1989). But here there were no sales, so respondent had no duty to account for any sales. For the first time in its post-hearing submission, Stone, Inc. also invokes federal regulations promulgated under the Perishable Agricultural Commodities Act of 1930, notably for the proposition that documentation of the dumpings was inadequate under federal law. However this may be, petitioner failed to prove the indebtedness it claimed in its complaint.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Agricultural and Consumer Services enter an order dismissing petitioner's complaint. DONE and ENTERED this 3rd day of July, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of July, 1991. APPENDIX Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 14 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 12, all evidence regarding the quality of the potatoes at their destinations was hearsay. With respect to respondent's proposed finding of fact No. 13, the actual disposition was not established by competent evidence. Respondent's proposed finding of fact No. 15 is properly argument rather than a finding of fact, for the most part. These loads apparently took two days to reach Sell's. COPIES FURNISHED: John W. Stone Post Office Box 74 Hastings, FL 32045 John Michael Traynor, Esquire 22 Cathedral Place St. Augustine, FL 32084 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Richard Tritshcler, General Counsel Department of Agriculture 515 Mayo Building Tallahassee, FL 32399-0800
The Issue The issues in this case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a general contractor, holding license CGC1251933 issued by the Petitioner. At all times material to this case, the Respondent was the qualifying contractor for "Signature Built Construction, Inc.," located at 1349 Admiral Woodson Lane, Clearwater, Florida, 33755. In May 2008, a complaint was filed against David Helms and "Signature Built by David Helms, Inc.," related to alleged problems between Mr. Helms and purchasers of a dwelling (the Wolbert residence). The Respondent is not a qualifying contractor for Signature Built by David Helms, Inc. Neither Mr. Helms nor Signature Built by David Helms, Inc., is a licensed contractor. Signature Built Construction, Inc., and Signature Built by David Helms, Inc., are two separate Florida corporations. There is no credible evidence that the two corporations have entered into any formal joint venture agreement or have become legally qualified to enter into joint construction contracts or to obtain joint building permits. The specific allegations of the complaint between the purchasers of the Wolbert residence and Mr. Helms are immaterial to this proceeding. The first page of the "Building and Purchase Agreement" for construction of the Wolbert residence identifies Signature Built by David Helms, Inc., as the "Builder" or "Seller," but further states as follows: Signature Built Construction, Inc., license numbers CBC1251933/QB32131 is the Contractor/Builder of record for Signature Built by David Helms, Inc. and is joined under this agreement. The Respondent's signature does not appear on the Building and Purchase Agreement. There is no credible evidence that the Respondent was legally bound by the Building and Purchase Agreement. The Administrative Complaint at issue in this proceeding alleges that the Respondent improperly obtained the permit for the Wolbert residence construction project on behalf of Signature Built by David Helms, Inc. The evidence establishes that the Respondent obtained the building permit for construction of the Wolbert residence pursuant to the Building and Purchase Agreement between the purchasers and Signature Built by David Helms, Inc. The Administrative Complaint alleges that the Respondent failed to maintain workers' compensation insurance for the construction of the Wolbert residence and, therefore, committed "fraud or deceit or gross negligence, incompetency or misconduct in the practice of contracting." The evidence fails to establish that the Respondent did not maintain workers' compensation coverage for construction of the Wolbert residence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order determining that the Respondent has committed the violation of statute and code provisions as set forth herein and providing for a fine of $1,000.00 and assessing legal costs. DONE AND ENTERED this 19th day of February, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2009. COPIES FURNISHED: Jason Ester, Esquire Pinellas County Attorney’s Office 315 Court Street, Sixth Floor Clearwater, Florida 33756-5165 Warren J. Knaust, Esquire Knaust & Associates, P.A. 2167 Fifth Avenue, North St. Petersburg, Florida 33713 Rodney S. Fischer, Executive Director Pinellas County Construction Licensing Board 12600 Belcher Road, Suite 102 Largo, Florida 33773
Findings Of Fact The certified residential contractors license number CRC001528 issued to Hampton is currently inactive. On June 21, 1977, Jay Hampton Construction, Inc. , entered into a contract with Francis Merceret to enclose a carport for a total price of $7,500.00. Hampton had made application to change his contractors license to a corporate license but since the paper work was not complete, such request was never processed. The work done on the Merceret residence was done under Hampton's individual license. Construction on the project was completed in August, 1977, and Merceret paid the full amount of the contract price to representatives of Jay Hampton Construction, Inc. There are outstanding bills in the amount of $183.76 due to Best Iron Works and $273.30 due to M. P. S. Industries, which monies are owed for work done or materials furnished for the Merceret enclosed carport. Hampton satisfied another claim of lien filed by Cling Electric, Inc., for unpaid bills resulting from the work on the Merceret residence. Merceret made a total of three payments to Jay Hampton Construction, Inc. The first two payments were made to the company. After that time, Hampton called Merceret and requested that the third and final payment be made directly to him because of problems Hampton was having with his partner. Hampton agreed to put the money in escrow until the problems were worked out and lienors were satisfied. Notwithstanding these precautionary instructions, Merceret made the final payment to one Murrary Lash, who was associated with Hampton. Hampton never saw the money again nor was it properly allocated to subcontractors or material men who had not been paid. This occurred, notwithstanding Hampton's request that Merceret not pay anyone until all releases were obtained.
The Issue The issue in this matter is whether Respondent practiced veterinary medicine without a license; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Department is the state agency charged with regulating the practice of veterinary medicine in Florida. See § 20.165(4)(a)13. and ch. 474, Fla. Stat. (2017). The Department brings this action alleging that Respondent engaged in the unlicensed practice of veterinary medicine in violation of section 474.213(1)(i), Florida Statutes (2015).3/ The Department specifically charges that Respondent, who does not hold a license as a veterinarian, used certain procedures to treat several horses, which constituted “veterinary medicine” as the term is defined in section 474.202(9). Respondent owns and operates Peak Performance Equine Dentistry. Respondent is not, nor has she ever been, licensed as a veterinarian in the State of Florida. As part of her “equine dentistry” services, Respondent “floats” horses’ teeth. “Floating” is the term used to describe filing or grinding down horses’ teeth to prevent overgrowth. Unlike humans, horses’ permanent teeth continue to grow throughout their lifetime. (Hence, the origin of the phrase “long in the tooth.”) Because of the manner in which horses chew, their teeth can develop sharp points and edges. Floating is the process of filing down those points to balance out or flatten the teeth. Floating helps horses masticate, as well as prevents tooth problems. Florida law specifically allows non-veterinarians to manually float teeth, i.e., with a hand-held file or rasp. See § 474.203(5)(b), Fla. Stat. However, only licensed veterinarians, or persons immediately supervised by a veterinarian, may float teeth using power tools. See § 474.203(7), Fla. Stat. Floating teeth by hand is a labor- intensive and lengthy process. Using a power tool, on the other hand, allows the practitioner more control over the filing process, as well as reduces the time needed to treat the teeth. On February 15, 2016, Tony King contacted Respondent to schedule an appointment for her to float the teeth of several of his horses. Mr. King learned of Respondent’s services through her advertisement for “equine dentistry” on the internet. On February 24, 2016, Respondent arrived at Mr. King’s barn at approximately 10:00 a.m. Mr. King identified nine horses whose teeth needed to be floated. Seven of the horses belonged to Mr. King. The other two horses were boarding at his barn. (None of the horses were owned by Respondent.) After unloading her equipment, Respondent proceeded to float the teeth of the first horse. She used a hand file and manually ground down the horse’s teeth. After Respondent floated the teeth of the first horse, she moved onto the second horse. Again, Respondent used a file and ground down the horse’s teeth by hand. However, Respondent soon found that the second horse was more difficult to treat. It became quite agitated as she worked on its teeth. Therefore, Mr. King decided to place a “twitch” on the horse’s nose. A “twitch” is a metal clamp that is strapped to the horse’s nose to calm it down and keep it under control. As Respondent continued floating, however, the horse suddenly reared up on its hind legs. When the horse descended, the twitch on its nose struck Mr. King on the left side of his face. Mr. King was knocked to the ground. He instinctively reached up to the wounded area. He felt that his eyeball had popped out of its socket and was resting on his cheek. (The eye was still attached to the optic nerve.) He impulsively shoved his eyeball back into the socket. When Mr. King gathered his wits, he quickly realized that he needed medical attention. He urged Respondent to continue working on the horses. Then, despite his blurred vision in one eye, he drove himself to a nearby surgery center where his wife was working. At the center, an eye doctor examined Mr. King and determined that his eye and vision issues would satisfactorily resolve themselves without treatment. (Mr. King did receive several stitches for a small cut under his left eye.) After his examination, Mr. King drove back to the barn returning approximately three hours later. At the barn, Mr. King was unsettled by what he found. According to his (one) eye witness testimony, Respondent was still working on the horses. However, in his absence, Mr. King believed that Respondent had 1) used a power tool to float the teeth of several horses, 2) administered a sedative to up to five horses, and 3) was preparing to pull “wolf” teeth from several horses. The Use of a Power Tool Regarding the use of a power tool, Mr. King testified that after Respondent arrived at his barn, she unloaded several pieces of equipment from her car. In this equipment, Mr. King observed power tools and a sedation bag. Upon returning to the barn after his trip to the eye center, Mr. King witnessed Respondent use an electric power tool to float the teeth of his horse, Warrior. Mr. King described the tool as having a motor and a head that Respondent applied to the horse’s mouth. He also saw that the tool was plugged into a power outlet in the barn. Sedation Floating teeth, especially with a power tool, often includes sedating the horse. Sedation makes the horse more docile and reduces the risk of harm during the treatment. Under Florida law, administering medication and drugs is considered the practice of veterinary medicine. See § 474.202(9), Fla. Stat. An unlicensed person may sedate a horse only if they are under the immediate supervision of a licensed veterinarian. See § 474.203(7), Fla. Stat. Mr. King testified that when he returned to the barn from the eye center, Warrior appeared to be heavily sedated. The horse was having difficulty keeping his head up on the rest. His ears were flat, and his nose hung down almost to the ground. Mr. King further noticed that at least four other horses showed signs of sedation in that they could not hold their heads up either. Mr. King also observed several plastic tubes or plungers on the ground which he believed were used to administer a gel- type sedative to the horses. Finally, Mr. King testified that Respondent, in fact, told him that she had sedated the horses. Mr. King further attested that he directly witnessed Respondent administer a sedative to a paint mare. Mr. King remarked that he saw Respondent holding a small syringe with a needle. He then watched her poke the paint mare several times with the needle, searching for a vein, before she injected the drug. Mr. King also relayed that Respondent commented that her needles were too small, as her mother had purchased the wrong size. Removing “Wolf” Teeth A horse’s “wolf” teeth are deciduous premolars. (They are similar to human wisdom teeth.) Wolf teeth often interfere with the fit of a bit in a horse’s mouth. Therefore, wolf teeth are frequently removed. Extracting wolf teeth, however, is not considered part of floating a horse’s teeth. Instead, removing wolf teeth is a surgical procedure due to the fact that pulling teeth typically requires sedation, as well as the use of certain medical equipment. As such, removing wolf teeth cannot be performed by an unlicensed person, unless such person is under the immediate supervision of a veterinarian. See §§ 474.202(13) and 474.203(7), Fla. Stat. Regarding Respondent’s removal of “wolf” teeth, Mr. King testified that after he observed the gel tubes and the syringe, Respondent informed him that several horses needed their wolf teeth extracted. Mr. King watched as Respondent pulled the wolf teeth from three horses, including Warrior, Scout, and the paint mare. Mr. King expressed that Respondent appeared to have difficulty removing the wolf tooth from the paint mare, as it took a long time. Within days after Respondent’s visit to his barn, Mr. King noticed that several horses were having trouble chewing. Upon inspecting his horses, Mr. King found at least one tooth that still had a point, and other teeth that were rounded, instead of filed flat. Shortly thereafter, Mr. King sought the care of a veterinarian to fix the problems. Soon afterwards, Mr. King complained to the Department about Respondent’s equine dentistry services. Based on Mr. King’s complaint, the Department charged Respondent with three counts of practicing veterinary medicine without a license, including: floating teeth using a power tool, instead of by hand, in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(13), Florida Statutes; pulling “wolf” teeth in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(13); and sedating at least one horse in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(9. In response to the Department’s allegations, Respondent flatly denied that she used a power tool to float the teeth of Mr. King’s horses. Respondent testified that she floated all of the horses by hand with a file. Respondent also refuted Mr. King’s testimony that she sedated any horses or pulled any wolf teeth. Respondent further denied that she has ever used power tools in her business. Neither has she ever sedated horses or pulled their teeth. Respondent maintained that she floats teeth exclusively by hand and with hand tools. Respondent also disputed key portions of Mr. King’s account. Respondent testified that it was Mr. King who raised the option of sedating his horses. Despite his suggestion, Respondent contended that she refused to do so. Respondent further insinuated that the metal object Mr. King observed in her hand was a tool used to scrap tarter off of a horse’s teeth. Finally, Respondent argued that she finished her floating treatment on all nine horses before Mr. King returned to the barn from the eye center. Therefore, he could not have watched her use a power tool, pull teeth, or sedate horses. Notwithstanding Respondent’s assertions, evidence presented at the final hearing established that Respondent is familiar with, and has received training in, the use of a power tool to float horses’ teeth. In May 2015, Respondent attended an equine dentistry program in Virginia during which time she received training on how to float horse’s teeth using both hand and rotary power tools. Shortly thereafter, she started her equine dentistry business in Florida. Several photographs of Respondent using a power tool on a horse are posted on her business’s Facebook page. Respondent acknowledged that the use of power tools and sedation, as well as the removal of wolf teeth, constitute the practice of veterinary medicine in Florida. Therefore, she could only perform these procedures and techniques under the immediate supervision of a veterinarian. Unrelated to the issue of Respondent’s use of a power tool and sedation, Respondent and Mr. King disputed whether Respondent received full payment for her equine dentistry services. Respondent testified that after she floated the nine horses, she presented Mr. King with invoices for her work. At the final hearing, Respondent produced nine separate Equine Dental Records detailing the amount she charged, as well as the treatment she provided for each horse. Respondent testified that it is her routine practice to complete an Equine Dental Record while she works on a horse and provide a copy to the client. Respondent relayed that her standard charge for floating services is $75 per horse. The Equine Dental Records that she produced record that she billed Mr. King $75 per horse ($675 total) and for no other treatment. Therefore, Respondent asserts that her documents confirm that she only floated the nine horses’ teeth and did not pull wolf teeth or administer sedation. Respondent also stated that Mr. King only had $500 in cash when she presented him with the invoices. Therefore, he told her that he would mail her a check for the remainder. However, when she called Mr. King a week later to follow up on his payment, he refused to pay the rest of the bill. Instead, he demanded that she pay him $500 to cover the medical cost of his eye injury. At the final hearing, Respondent declared that Mr. King filed a false complaint against her in an effort to extort payment from her for his medical expenses. Respondent also pointed out that the amount she charged, as recorded on the Equine Dental Records she prepared, does not match the figure Mr. King recalled he paid her. Therefore, his memory of the event is not credible or reliable. Mr. King remembered that Respondent charged him around $600 for the floating procedure. But, he asserted that she charged him an additional amount for the sedation and the extraction of the wolf teeth. Mr. King stated that he paid Respondent the full amount of her services, in cash, on the date she treated his horses. Mr. King denied that he ever received or saw the Equine Dental Records Respondent produced at the final hearing. Mr. King disputed Respondent’s claim that she supplied him with a written bill, invoice, or receipt of any kind for her floating services. Mr. King further denied that he demanded Respondent pay for his medical expenses. He represented that he owed nothing for his hospital visit because his wife worked at the facility. The Department introduced the testimony of Patricia Austin in rebuttal.4/ Ms. Austin testified regarding a similar floating service she received from Respondent on her horse. Ms. Austin was acquainted with Respondent from boarding her horse at a barn where Respondent took lessons and occasionally cared for horses. Ms. Austin testified that in May 2016, she hired Respondent to float the teeth of her horse, Sapphire. During the procedure, Ms. Austin observed Respondent use a power tool to file down Sapphire’s teeth. Ms. Austin described the power tool as a long metal device with a grinder on the end. The tool was equipped with a power cord and was plugged in during the treatment. Ms. Austin also witnessed Respondent sedate her horse. Ms. Austin watched as Respondent injected Sapphire with a needle. Following the injection, Ms. Austin relayed that Sapphire’s head and ears began to droop, and she appeared sleepy. Ms. Austin paid Respondent for her services in cash, half at the time of treatment and the other half two weeks later. Respondent did not provide Ms. Austin with an invoice or receipt. Neither did Ms. Austin receive an Equine Dental Record from Respondent documenting her work on Sapphire. Respondent denied that she ever floated the teeth of Sapphire or any other horse for Ms. Austin. Instead, Respondent asserts that she simply looked at Sapphire’s teeth and determined that the horse did not need dental care. The Department incurred $288.47 in investigative costs associated with this matter. Based on the competent substantial evidence produced at the final hearing, the clear and convincing evidence in the record establishes that Respondent engaged in the practice of veterinary medicine without a license. Accordingly, the Department met its burden of proving that Respondent should be disciplined for her unlicensed conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Respondent, Megan McMurran Lajara, violated section 474.213(1)(i) and impose an administrative fine in the amount of $9,000 ($3,000 for each separate violation), as well as assess costs in the amount of $288.47. DONE AND ENTERED this 31st day of January, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2018.
The Issue The issue presented herein concerns whether or not Respondent unlawfully discriminated against Petitioner, Michael Brown, on the basis of his race.
Findings Of Fact At the outset of the hearing herein, Respondents moved to dismiss the Petition herein based on a claimed lack of jurisdiction over the Respondents because of Petitioner's failure to allege that the Respondents were employers within the meaning of Section 760.02(6), Florida Statutes. Additionally, Respondent, William B. Bryant Company, alleged that the Petition was untimely in that it was not filed within 180 days of the occurrence of the alleged unlawful employment practice as set forth in Rule 22T-9.01(2), Florida Administrative Code. Respondent, William B. Bryant Company, introduced payroll records for all times relevant herein. 1/ An examination of those records reveals that Respondent William B. Bryant Company has not employed 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Based thereon, Respondent William B. Bryant Company is not an employer within the meaning of the Human Rights Act of 1977, as amended. Section 23.162(6) and 23.167(10), Florida Statutes (1981). Additionally, an examination of the Station Agreement entered into by and between Greyhound Lines, Inc., a California corporation with offices at 431 Greyhound Tower, Phoenix, Arizona, and William Boyd Bryant, d/b/a William B. Bryant Company, which has a contractual agreement to provide services at Respondent Greyhound Lines, Inc., Ocala, Florida terminal, is not an employer of either Michael Brown, Petitioner, or William B. Bryant Company. Based thereon, it is determined that Respondent Greyhound Lines, Inc. is not an employer of Petitioner within the The meaning of the Human Rights Act of 1977, as amended. Sections 23.162(6) and 23.167(1), Florida Statutes (1981).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition filed herein. RECOMMENDED this 21st day of June, 1984, 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 21st day of June, 1984.
The Issue The issue presented for decision herein is whether or not the Respondent's sign was erected and/or maintained in violation of Chapter 479, Florida Statutes, and, if so, whether it should have been removed for not having a state sign permit.
Findings Of Fact Respondent, Southern Mobile Homes of Okeechobee, owns the Otter Creek Acres sign that was erected on the northbound side of Highway 441, U.S. 441, a federal aid primary highway, in Okeechobee County, Florida, 13.17 miles north of Highway 78 (S.R. 78). The sign carried a two face copy approximately 8 x 24 feet, located approximately 100 feet from the highway right-of-way and was visible from the main travel-way of the road. Respondent did not obtain a state sign permit for the sign before it was erected. No state sign permit was obtained after it was erected and maintained although Respondent obtained a county sign permit and attempted to obtain a state permit. Since the area in which the sign is erected is zoned agricultural/conservation, a state permit cannot be issued. Richard Hayford, Petitioner's Outdoor Advertising Inspector for Okeechobee, County, made a routine Inventory of permitted signs in the County on February 25, 1988. At that time, Respondent's sign came under investigation. Respondent's sign was erected without a state sign permit on U.S. 441. Inspector Hayford did not post a Notice of Violation on the sign because, he contends, there was water in a canal between the sign and the highway which made it impossible to post the notice on the sign. Hayford issued a Notice of Violation dated March 7, 1988 which was sent by certified mail to Otter Creek Acres in Okeechobee, Florida, advising that the sign was in violation of Subsection 479.105(1)(a), Florida Statutes, for not having a state permit and indicating removal. Otter Creek Acres is owned by Mr. Edwards' parents and is operated by him in conjunction with Southern Mobile Homes in Okeechobee at the same address. On April 25, 1988, Inspector Hayford posted a Notice of Violation on the sign as the canal was then dry enough for him to post the Notice. On May 2, 1988, the sign was ordered removed by the Department based on the March 7, 1988 violation notice. Edwards erected the sign during September, 1985. When he received the March 7, 1988 Notice of Violation, Edwards contacted Inspector Hayford who provided him with a packet of materials containing a permit application, directions, rules and regulations for outdoor advertising and a copy of Chapter 479, Florida Statutes. Respondent spent $360 for each side of the double sided sign plus taxes to the Sign Stop, an outdoor advertising company in Okeechobee, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: 1. The Department of Transportation enter a Final Order finding that Respondent's sign was illegally removed and is entitled to be compensated for such removal in the amount of $756, which amount includes the total amount expended by the Respondent for the erection of the sign in question. DONE and ORDERED this 1st day of March, 1989 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 1st day of March, 1989. COPIES FURNISHED: Jeffrey K. Edwards, President Southern Mobile Homes of Okeechobee 3801 N.W. 160th Street Okeechobee, Florida 34972 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Kaye Henderson, Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 =================================================================
