The Issue The two issues in this case are whether Respondent, as the trainer of record for two greyhounds; M's Shamrock, that first place finisher in the fourth race on November 7, 2001, and greyhound Lapislazuli, first place finisher in the fourteenth race on November 7, 2001, is legally responsible for the prohibited substance found in each greyhound's urine sample taken immediately after the races, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. At all times relevant and material to this proceeding, Respondent, Curtiss D. Hughes, was the holder of a pari-mutuel license issued by the Division. Sanford-Orlando Kennel Club is a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On November 7, 2001, Respondent was the trainer for a racing greyhound named M's Shamrock that finished first in the fourth race of the evening performance at Sanford-Orlando Kennel Club on that date. Immediately after each race the greyhounds who finish in the win, place and show positions are taken to the "cooling off" area where urine samples are taken by the Kennel's veterinarian assistant and urine sample collector. On November 7, 2001, Brandy Glaspey, veterinarian assistant, collected the urine sample of greyhound, M's Shamrock, and assigned, for identification purposes, number 738627 to M's Shamrock's urine sample. Urine sample 738627 was shipped to the University of Florida Racing Laboratory, Gainesville, Florida, where under the supervision of Dr. Ian R. Tebbett, Ph.D., professor and director of the racing laboratory at the University of Florida and qualified as an expert in forensic toxicology, it tested positive for illegal substance. On December 21, 2001, Respondent was the trainer for a racing greyhound named "Lapislazuli," which finished first in the fourteenth race of the matinee performance at Sanford- Orlando Kennel Club. Immediately after the race a urine sample was collected from Lapislazuli by Brandy Glaspey, veterinarian assistant, and assigned sample number 788210 for identification purposes. Urine sample numbered 788210 was shipped to the University of Florida Racing Laboratory, tested, and found to contain Benzoylecgonine, a metabolite of Cocaine. Cocaine is a Class 1 drug according to the Association of Racing Commissioners International classification system. Respondent testified that he did not administer the drug cocaine to greyhound, Lapislazuli, and he had never been cited for any prior drug violation while holding a Florida occupational license. Respondent's defense to the administrative complaint (Election of Right) alleged a possible breach of the "chain of custody" (from the end of the race, to bringing dogs to the ginny pit, to sample collection, to sample labeling, to sample examination and sample results) and a breach and/or lack of kennel security. There was no material evidence presented of a specific breach of security.
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 The issue in this case concerns whether the Respondent violated Sections and 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate penalty to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 4267 Northwest 12th Street, Lauderhill, Florida 33313, and holds Food Permit No. 55402, pursuant to Section 500.12, Florida Statutes. On January 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 327 pounds of uninspected meat product, consisting of the following: two pig carcasses, one cow head, singed cow feet, beef lungs, and goat tripe. None of the products bore any marks of inspection. With the exception of the two pig carcasses, 1/ all of the uninspected meat product was being offered for sale to retail customers. Beef lungs, or "lite," may not be sold as human food under any circumstances in the State of Florida. The goat tripe, or stomachs, were adulterated with ingesta, which is the contents of the stomach at the time the animal is slaughtered. Some of the beef lungs were darkly colored which, in the opinion of the Compliance Officer, was because they were either old or had been left unrefrigerated for some period of time. One of the pig carcasses was unclean and bruised, and was therefore condemned. The other carcass was released to Mr. Richard Gray after it was determined by the Compliance Officer that, despite the lack of proper labeling, the pig carcasses were being held for the personal use of Mr. Gray. On February 12, 1993, a Department Compliance Officer performed a second inspection at Respondent's facility. At this time, the Compliance Officer examined and detained approximately 65 pounds of uninspected meat products, consisting of the following: goat feet (hide on), goat intestines, goat tripe, and beef lungs. None of the products bore marks of inspection, nor were they marked as "Not for Sale." The goat feet and beef lungs were adulterated with ingesta and were generally dirty. The products detained during the February 12, 1993, inspection, were delivered to Respondent's facility on January 19, 1993, as part of the same purchase of meat products as the items found by the USDA Compliance Officer on January 12, 1993. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and arthritic conditions, as well as drug residues. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products. By means of the Department's letter dated May 29, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of adulterated and misbranded cow and goat feet.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on January 12, 1993; Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on February 12, 1993; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of May 1994.
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 =================================================================
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
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
