The Issue Carletta Myers d/b/a Myers’ Nursery filed a complaint with the Florida Department of Agriculture and Consumer Services on October 23, 1996, alleging that Florida Landscape Associates of Palm Harbor, Inc. failed to pay over $5800 for plants purchased between April and August 1996. The issue in this proceeding is whether those monies are owed.
Findings Of Fact Myers’ Nursery (Myers’) is located in Tampa, Florida. It produces agricultural products in the state of Florida. Florida Landscape Associates (Florida Landscape) is a dealer in agricultural products, also located in Tampa, Florida. It purchases plants for its various landscaping projects. For many months prior to April 1996, Myers’ and Florida Landscape had an arrangement in which Florida Landscape, mostly though Anna Borgan, its manager, ordered nursery stock by telephone for pick up later by Florida Landscape’s employees. Upon pick up, the employee generally signed an invoice “received by”. Later, Florida Landscape sent a payment for the products. This arrangement was the same for most of the firms with which Myers’ conducted its business. During 1995, Florida Landscape paid approximately $8,000 for its purchases from Myers’. Florida Landscape continued to order and pick up plants from Myers’ in 1996. However, commencing some time in March 1996, the payments stopped. Between April 1996 and the end of August 1996, Florida Landscape’s unpaid purchases totaled over $6,000. Despite calls and written demands, the invoices remain unpaid. Myers’ filed its complaint with the Florida Department of Agriculture and Consumer Services on October 23, 1996. By that time some of the unpaid invoices were beyond the six-month’s statutory period for recovery under the agricultural bond program administered by the Florida Department of Agricultural and Consumer Services. At the hearing, Myers’ submitted invoices dated from April 24, 1996 through August 23, 1996, reflecting approximately $6,000 of unpaid purchases by Florida Landscape. Without explaining why all of these invoices remain unpaid, Florida Landscape conceded that it owes the money for all but two categories: the invoices that are not signed “received by”, and the invoices that were signed “received by” James (Jim) Derewenko. Throughout the relevant period Jim Derewenko was an employee of Florida Landscape who routinely picked up and signed for nursery stock from Myers’. Sometime around the end of August 1996, Derewenko’s ex-wife told Florida Landscape that he had his own business on the side, in competition with his employer. Anna Borgan and others at Florida Landscape became concerned about Derewenko having diverted to his own customers plants ostensibly ordered by Florida Landscape. According to Anna Borgan, they “just didn’t know” where the plants ended up. On September 10, 1996, Florida Landscape, by John Van Vulpen, its president, sent a letter notifying all of its vendors including Myers’, that, as of August 26, 1996, Jim Derewenko was no longer employed by Florida Landscape and was not authorized to make purchases on behalf of Florida Landscape. The invoices for which Myers’ is claiming payment all precede the letter from Florida Landscape and pre-date Derewenko’s termination on August 26. There is no evidence that Myers’ had any knowledge of Derewenko’s diversion of plants. Most of the invoices for which Myers’ claims payment have been signed by employees of Florida Landscape, including Jim Derewenko. For the invoices with no signature “received by”, it is impossible to determine who picked up the plants. Excluding the unsigned invoices, the total owed by Florida Landscape to Myers’ is $5854.55. This sum includes invoices dated August 21, 1996, and August 23, 1996, included in Petitioner’s exhibit no. 1.
Findings Of Fact Petitioner, Josef Schneider, is a resident of LaFontana Cooperative Apartments (LaFontana) which is located at 2800 North Flagler Drive, West Palm Beach, Florida. LaFontana is a cooperative apartment building consisting of 140 units. Petitioner has resided at LaFontana since November of 1984. By his definition, Petitioner is an orthodox Hasidic Jew. To evidence his beliefs, Petitioner wears an undergarment known as the "Fringes of Prayer," and, at all times, a yarmulke on his head. Other Jews who are less orthodox or less conservative do not follow the wearing of the garments as strictly as Petitioner chooses to do. At all times material to the allegations of this case, approximately forty to fifty percent of the units at LaFontana were owned by Jews. According to Petitioner such Jews either do not know the laws of their faith or do not observe the laws as well as he does. In 1991, a mezuzah was ripped down from Petitioner's door, broken in half, and the parchment inside was desecrated. A mezuzah is a religious symbol for Jews and holds, according to Petitioner, the Jewish Code of Ethics and Conduct. No evidence was presented as to who committed this act. Earlier, prior to the mezuzah incident, but at an unspecified time, Petitioner's black guests were treated in a derogatory manner by a doorman. On another occasion a resident who observed Petitioner in an elevator with a black female guest reportedly stated, "Oh my God, a black and a Jew together." Petitioner reported the mezuzah incident to the Respondent's board of directors by advising the building manager of the incident and by telling Harry Weiner, a member of the board at the time. On another occasion, a pigeon with a Star of David attached to it was left on Petitioner's door stoop. No evidence was presented as to who committed this act. The Respondent's board of directors did not take action against anyone in connection with the incidents described above. Although the police were notified, no evidence was presented to establish that the identity of the perpetrator(s) was ever determined. Petitioner's speculation as to the identity of a perpetrator has not been deemed credible or sufficient in substance to support a finding of fact. Another subsequent incident in which Petitioner discovered vomit on his door was also unsolved as to the perpetrator's identity. Petitioner maintains that several individuals, all of whom reside at LaFontana and some of whom are Jewish themselves, have made derogatory remarks toward him. Some of the remarks included references to Petitioner's faith, such as "despicable Jew" and "dirty little Jew." Some of the remarks were reportedly made by either past board members, committee members, or others who later became committee members. Petitioner reported all of these slights to the Respondent's board. Petitioner contacted the police again when he discovered a Star of David made out of barbed wire on his door. Again, the identity of the perpetrator(s) of the act is unknown. Neither the police nor the Respondent's board took action. During his residence at LaFontana Petitioner has reported the Respondent for numerous electrical, plumbing, or building violations. Such complaints were made to city authorities and resulted in repairs; the costs for which were assessed to the unit owners. A "retro fit" project, for example, resulted in an expenditure in excess of $200,000. Also, Petitioner has taken pictures of the LaFontana residents when he thought a rule or regulation was being violated. These photographs were in addition to those he took of the building conditions he considered to be defects. Petitioner did not seek anyone's permission before taking the pictures and considers that he has an absolute right to take such photos. Similarly, Petitioner took a videocamera into a business meeting of the finance committee. Persons attending the meeting were annoyed by the Petitioner's use of the camera and, after a confrontation, the police were summoned. During the course of the police investigation of the matter, Petitioner was detained as he was creating a disruption by attempting to film the residents and by arguing in protest to the circumstances. Later, Petitioner was released. The Respondent's board has never voted to approve or has in any manner condoned the acts complained of by Petitioner. The Respondent's board has attempted to respond to Petitioner's complaints but has not acted to mediate or resolve the issues of conflict between individual residents of the cooperative and Petitioner. Petitioner has caused some residents of LaFontana to be uncomfortable around him and thus he is avoided. Petitioner has not been slighted by nor discriminated against by the Respondent based upon his religious beliefs. While Respondent was unsuccessful in evicting Petitioner, a money judgment against Petitioner has been upheld by the appellate court. Thus, the greater weight of the evidence supports the finding that the acts complained of by Petitioner resulted not because of discrimination against him as an orthodox Hasidic Jew but because of numerous other issues that have created severe frictions within LaFontana.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE AND RECOMMENDED this 24th day of June, 1994, in Tallahassee, Leon County, Florida. Joyous D. 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 24th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3578 Rulings on the proposed findings of fact submitted by the Petitioner: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent: Respondent's proposed findings of fact were submitted under headings which described the basis for the finding. While not in a form which readily allows acceptance or rejection, the following is an attempt to do so: Re: I. Findings of fact-documentary evidence: Paragraphs 1 through 4 are rejected as recitation or characterization of exhibit not a finding of fact. Paragraph 5 is rejected as argument and recitation or characterization of exhibit not a finding of fact. Paragraph 6 is rejected as irrelevant and recitation or characterization of exhibit not a finding of fact. Re: II. Findings of fact-Testimony: The substance of paragraph 1 (as to the stipulation of the parties) is accepted. Paragraph 2 is rejected as comment not a finding of fact. In substance paragraph 3 is accepted. Paragraph 4 is rejected as irrelevant, argument, or comment on testimony not in form of finding of fact. Paragraphs 5 through 8 are rejected as recitation or characterization of testimony not in the form of a finding of fact. Paragraph 9 is rejected as irrelevant. Paragraph 10 is rejected as argument, recitation or characterization of testimony not in the form of a finding of fact. Paragraph 11 is rejected as irrelevant. Paragraphs 12 and 13 are rejected as recitation or characterization of testimony not in the form of a finding of fact. Paragraphs 14 and 15 are accepted in substance. Paragraph 16 is rejected as argument, recitation or characterization of testimony not in the form of a finding of fact. Paragraph 17 is rejected as irrelevant, recitation or characterization of testimony not in the form of a finding of fact. Paragraph 18 is rejected as irrelevant. Paragraphs 19 through 22 are accepted in substance. Paragraph 23 is rejected as irrelevant. Paragraph 24 is rejected as argument. Paragraphs 25 and 27 are rejected as irrelevant. Paragraph 26 is rejected recitation or characterization of testimony not in the form of a finding of fact. COPIES FURNISHED: Jacob A. Rose JACOB A. ROSE, P.A. Flagler Court Building, Suite 305 215 Fifth Street West Palm Beach, Florida 33401 Shepard Lesser LESSER & LESSER, P.A. 909 N. Dixie Highway West Palm Beach, Florida 33401
The Issue Whether respondent violated Section 498.023, Florida Statutes, by offering or disposing of an interest in subdivided lands (Pinecrest Estates) without first registering it or delivering a public offering statement to the purchasers and, if so, what penalty should be assessed or affirmative action ordered.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order assessing a $10,000 civil penalty against respondent for its violation of Chapter 498 Florida Statutes; requiring respondent to fully disclose the adverse features of the Pinecrest Estates property to each of its prior purchasers, such disclosure to be accomplished in a manner approved by the Division; requiring respondent to offer and make full refunds to its prior purchasers who desire a refund, such refunds to be made in a manner approved by the Division and conditioned only on reconveyance of the land to the respondent or recission of the agreement for deed; and requiring respondent to record in the official records of St. Johns County, Florida, all outstanding agreements for deeds covering lots belonging to prior purchasers who, after disclosure, choose not to request refunds. DONE AND RECOMMENDED this 11th day of January, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 11th day of January, 1983.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as facts stipulated to by the parties, the following relevant facts are found: Central Corporation, formerly known as TFC Teleservices Corporation, is a provider of alternative operator services (AOS). An AOS provider provides operator assisted long distance telecommunications services to various entities including hotels, motels, universities, hospitals and private pay telephone providers. This new AOS telecommunication industry emerged after 1984 when AT&T ceased paying commissions to hotels for toll-traffic from guests and when the Federal Communications Commission authorized privately-owned pay phones. There are currently nine AOS providers in Florida. Central is authorized by Certificate Number 1528, issued by the PSC on November 21, 1986, to operate as an interexchange carrier within the State of Florida. Central currently operates in Florida under an approved tariff on file with the PSC, which tariff became effective on September 15, 1987, and authorizes Central to charge certain amounts for its services. Prior to the challenged action, the PSC never placed any conditions upon Central's approved tariffed rates. Interexchange companies (IXCs) are companies which provide long distance telephone services. They are certificated by the PSC on a statewide basis and engage in competition with each other. Such competition, along with the PSC's fitness screening and approval of tariffed rates, is considered adequate to protect the public. Consequently, the PSC does not regulate the rates of IXCs, at least minor IXCs including AOS providers. The PSC does not set rate levels for minor IXCs and does not set an authorized rate of return on equity for minor IXCs. Indeed, in accordance with Section 364.337, Florida Statutes, which authorizes the PSC to exempt from the requirements of Chapter 364 a telephone company which is in competition with or duplicates the services of another telephone company, the PSC has placed AOS providers under the separate rules and regulations pertaining to IXCs, which are not rate base regulated. The PSC has never established for any minor IXC a rate base or an authorized or required rate of return. Local exchange telephone companies (LECs) serve a franchised monopoly area. The LEC agrees to provide service indiscriminately to the public without competition, and, in return, the PSC guarantees the LEC the opportunity to earn a fair rate of return designed to emulate what might be achieved in a competitive market. The PSC sets rate bases and rate levels for LECs, and authorizes the rate of return on equity. In other words, unlike IXCs, LECs are rate base regulated utilities. LECs and/or the PSC may initiate rate relief or rate decrease proceedings. Interim relief is often necessary and is authorized by statute and case law due to the regulatory lag time pending the conclusion of the proceedings. Such interim rate relief or interim rate decreases are done on an individual case-by-case basis and are based upon the financial condition of the particular LEC. The PSC has never provided interim rate relief or interim rate decreases on an industry-wide basis. It has set a "generic" rate cap, establishing a 25 cent local call rate for privately-owned pay phones, but that was done on a prospective basis. The PSC has never imposed an industry-wide rate cap, with a requirement to hold subject to refund monies in excess of that cap. At the request of PSC staff, the PSC opened, on December 18, 1987, Docket Number 871394-TP styled "In re: Review of Requirements Appropriate for Alternative Operator Services provided from Public Telephones." This was designated as a "generic" proceeding, and emanated from numerous complaints the PSC had received from end users (i.e., guests of hotels and motels, hospital patients and pay telephone users) who had been charged for alternative operator services. The nature of the complaints included end users being charged for AOS without being aware of using the service, lack of prior knowledge of the rates being charged, inability to use the services of their preferred IXC and inability to access the LEC operator. The most significant complaint, however, was the excessive rate being charged by some AOS providers. The evidence demonstrates that the intrastate long distance rates charged by Central are considerably higher than the rates charged by Southern Bell, an LEC. Central entered an appearance in Docket No. 871394-TP on December 30, 1987. At an Agenda Conference held on February 2, 1988, the PSC voted on various recommendations of its staff. As pertinent to this proceeding, the PSC voted to set an expedited hearing to be held as soon as practicable to determine whether AOS are in the public interest and various other issues concerning the provision of AOS. The PSC also voted to require all AOS providers to place all revenues subject to refund that are generated by charges in excess of the AT&T rate for a comparable call. This vote exceeded the staff's recommendation, which did not include a "hold subject to refund" requirement. At an Agenda Conference held on February 16, 1988, the PSC voted to reconsider the rate cap applicable to AOS providers and to hold the Order reflecting their February 2nd vote pending such reconsideration. At its Agenda Conference held on March 15, 1988, the PSC reconsidered and raised the rate cap amount from the AT&T rate for a comparable call to the LEC rate for a comparable call, thereby decreasing the amount of revenues that AOS providers must hold subject to refund. The action taken on March 15, 1988, was embodied in written Order No. 19095 issued on April 4, 1988. This Order is entitled "Order Setting for Hearing the Issue of Whether Alternative Operator Services are in the Public Interest and Placing Revenues Subject to Refund ..." The remainder of the title relates to "proposed agency action" concerning other requirements for AOS providers, which are not challenged in this proceeding. Order No. 19095 declares that paragraph 7, which requires AOS providers to hold subject to refund all charges collected in excess of the approved rate, is effective February 2, 1988. The Order further recites "We are cognizant of the serious impact this action may have on AOS providers and their customers. However, it is our view that we must take immediate and effective action to remedy the abusive situation we perceive exists at this time. It is in consideration of these conflicting concerns that we have chosen the least drastic action available. This action does not require AOS providers to immediately stop charging current rates. It does not suspend or revoke any certificates of public convenience and necessity. It does not levy any fines or penalties. It merely places revenues subject to refund to allow for the return of these monies if it is subsequently decided that they were generated from inappropriate charges." Although not embodied within the terms of Order No. 19095, the parties stipulated that the hearing to determine public interest is scheduled for August 9-12, 1988. Central requested the PSC to hold an evidentiary hearing prior to making the rate cap take effect, but this request was denied. The rate cap requirement and the disposition of the revenues held by AOS providers pursuant to Order No. 19095 are issues to be determined at the hearing to be held August 9- 12, 1988. The rate cap requirement set forth in Order No. 19095 applies to all AOS providers operating in Florida. Central's current tariff authorizes Central to charge more than the rate cap specified in Order No. 19095. Prior to Order No. 19095, there was no rate cap on AOS providers. Regardless of whether the PSC ultimately orders a refund, the "hold subject to refund" requirement which became effective on February 2, 1988, has immediate and significant adverse impacts upon Central. Central is a relatively new company and must use the revenue it generates on a daily basis. Prior to Order No. 19095, Central was able to rely on the unconditional use of revenues it receives under its approved Florida tariff. If Central continues to charge its current tariffed rates, it will have to set aside the difference between what it bills and the rate cap, place it in escrow and will not be able to utilize those funds. It is estimated that the revenues Central might have to refund if it continues to charge its current rates would between $1.2 and $1.7 million. Nonrecoverable commissions and the cost of a actually making the refund would increase the potential cost of the refund. If Central were to reduce its rates to the LEC rate, it would lose a substantial amount of revenue and does not know where it can make up that loss. Even if this option were chosen today, Central would still have to determine to whom it provided services since February 2, 1988, and what the potential refund would be. Additional staffing and/or computer equipment would be necessary to keep track of prior users and charges. A third option is for Central to withdraw from Florida intrastate operations pending the outcome and conclusions of the August PSC proceedings. Central operates in many states. While its Florida business makes up only 8 to 10 percent of its intrastate revenues, some 40 percent of Central's entire business originates at Florida properties. If Central were to cease paying commissions on intrastate revenues, its intrastate business originating from Florida would go to its competitors. While Central has made the decision not to do business in certain states due to those state's methods of rate regulation, such decisions were made on a prospective basis. Other immediate and adverse impacts upon Central include the administrative costs and burdens associated with separate bookkeeping for its Florida operations, as well as separate books within Florida to segregate the difference between the rate cap and its tariffed rates. Central has already experienced delays in loan financing. Lenders want to wait and see what the PSC does with AOS providers. The valuation of the company is affected due to money taken out of the revenue stream and placed in escrow. Central's financial statement must reflect the contingent liability of potential refunds and full disclosure must be made to the Federal Communication Commission.
The Issue DOAH Case No. 04-0262: Whether Respondent, West Florida Landscaping & Landscaping, Inc. ("West Florida Landscaping"), owes Petitioner, South Florida Sod, Inc. ("South Florida Sod"), $29,360.80 for the sale of sod during the months of July and August 2003. DOAH Case No. 04-0306: Whether Respondent, West Florida Landscaping, owes Petitioner, Bayside Sod, Inc. ("Bayside Sod"), $18,750.68 for the sale of sod during the month of October 2003.
Findings Of Fact Petitioners, South Florida Sod and Bayside Sod, are producers of agricultural products as defined by Subsection 604.15(5), Florida Statutes (2003). Both Petitioners grow and sell sod. South Florida Sod is located in Arcadia, Florida. Bayside Sod is located in Sarasota, Florida. Respondent, West Florida Landscaping, located in Plant City, Florida, is a dealer in agricultural products as defined by Subsection 604.15(1), Florida Statutes (2003). At the time of the transactions in question, West Florida Landscaping was licensed as a dealer in agricultural products supported by a surety bond provided by Old Republic Surety Company. West Florida Landscaping began purchasing sod from South Florida Sod in early 2003. The sod was purchased by a man named Dallas Justice. Bryant McCall, vice president of South Florida Sod, testified that Robert Owens, the owner of West Florida Landscaping, told him that Mr. Justice worked for him and would do the ordering for West Florida Landscaping. The initial purchases were cash transactions. At some point during the course of dealings, Mr. Owens contacted South Florida Sod to request a line of credit. Mr. Owens completed a credit application, and thereafter West Florida Landscaping purchased sod on credit. Mr. McCall testified that West Florida Landscaping was never a model credit customer. He had to "hound" West Florida Landscaping to pay its bill. However, up until July and August 2003, West Florida Landscaping always paid the bill, though often well after payment was due. From July 11 through August 27, 2003, Mr. Justice placed 43 orders for sod with South Florida Sod in the name of West Florida Landscaping. The sod was picked up at South Florida Sod's place of business by truckers sent by Mr. Justice. The total price for all these orders was $29,360.80. Invoices for each of these orders were sent to West Florida Landscaping, which neither paid them nor disputed their validity. Mr. McCall contacted Mr. Owens about payment of the invoices. Mr. McCall testified that Mr. Owens stated that he had been out of town during the period of the unpaid invoices. Mr. Owens told Mr. McCall that upon returning, he discovered that Mr. Justice was defrauding him. Mr. Justice was ordering the sod and completing the work for West Florida Landscaping projects, but was also collecting the customers' payments and keeping the money for himself. Mr. Owens did not fire Mr. Justice or turn him over to law enforcement authorities because he wanted Mr. Justice to work off the debt. Mr. Owens promised Mr. McCall that he would make good on the debts incurred by Mr. Justice with South Florida Sod. Mr. McCall testified that a payment schedule was established, but that Mr. Owens did not observe it, forcing South Florida Sod to file a Producer Complaint. As of December 5, 2003, the balance owed South Florida Sod by West Florida Landscaping was $29,360.80. West Florida Landscaping began purchasing sod from Bayside Sod on a cash basis sometime in the middle of 2003. A man named "Gene," later identified as Dallas Justice, ordered the sod on behalf of West Florida Landscaping. Bayside Sod sold 11 truckloads of sod to Mr. Justice and was paid cash. On October 1, 2003, Bayside Sod first extended credit to Mr. Justice at his request. Between October 2 and October 22, 2003, Mr. Justice took delivery of 23 orders for various amounts of sod worth $18,750, with Florida sales tax. None of these deliveries was paid for by Mr. Justice or West Florida Landscaping. Paul Bispham, owner and president of Bayside Sod, testified that he spoke with Mr. Owens on December 13, 2003. Mr. Owens assured Mr. Bispham that he and Mr. Justice would pay the debt. Benjamin Strong is a field superintendent for Trent Colony Landscaping. He gave West Florida Landscaping's name to Mr. Bispham as a reference when the latter contacted him to solicit new business. Mr. Strong had done business with Mr. Justice and West Florida Landscaping. His practice was to make out checks to West Florida Landscaping and give the checks to Mr. Justice. Mr. Strong testified that Mr. Owens later told him emphatically not to give any West Florida Landscaping checks to Mr. Justice. At the hearing, Mr. Owens denied that Mr. Justice was ever an employee of West Florida Landscaping. Rather, Mr. Justice was an independent contractor whom Mr. Owens would hire on a per-job basis to lay sod. However, Mr. Owens admitted that he gave Mr. Justice authority to order sod for West Florida Landscaping, thus mooting the significance of Mr. Justice's status as an employee or independent contractor. Mr. Owens further admitted that he signed the letter seeking a line of credit from South Florida Sod. Mr. Owens testified that he was in New Orleans for an extended period. While Mr. Owens was gone, Mr. Justice began ordering sod for jobs of his own, but had the purchases billed to West Florida Landscaping. Mr. Owens testified that he has paid for any sod that Mr. Justice ordered for West Florida Landscaping projects, but that he believed himself under no obligation to pay for sod that Mr. Justice ordered for his own jobs. He discovered, belatedly, that Mr. Justice was "a liar and a cheat." Mr. McCall credibly testified that Mr. Owens said nothing to him about Mr. Justice having used West Florida Landscaping's name to fraudulently obtain sod. Rather, Mr. Owens told him that Mr. Justice was, in Mr. Owens' absence, completing West Florida Landscaping jobs, but then cashing the checks made out to West Florida Landscaping and pocketing the money. This testimony is consistent with that of Mr. Strong and is credited. Mr. Owens admitted to making some efforts to deduct money from Mr. Justice's pay in order to settle the debts with South Florida Sod, but stated that he did not feel a legal obligation to do so. Mr. Justice was subpoenaed to appear and testify at the hearing in this matter, but he did not appear. By the weight of the evidence and by his own admission, Mr. Owens authorized Mr. Justice to order sod on behalf of West Florida Landscaping. The evidence established that a course of dealing was established between Mr. Justice, on behalf of West Florida Landscaping, and the Petitioners in these cases, whereby Mr. Justice would order and take delivery of the sod from the Petitioners, and West Florida Landscaping would pay the invoices for the sod. The greater weight of the evidence is that Mr. Justice was acting on behalf of West Florida Landscaping in all his dealings with South Florida Sod and Bayside Sod. In light of the established course of dealing, West Florida Landscaping failed to establish any reasonable basis for its contention that South Florida Sod and Bayside Sod should have inquired as to Mr. Justice's continuing authority on each occasion that he ordered their sod. Mr. Owens' testimony that the sod ordered by Mr. Justice from South Florida Sod and Bayside Sod was not for West Florida Landscaping jobs cannot be credited based on the testimony of other witnesses and Mr. Owens' own actions subsequent to learning these suppliers had not been paid. While there is no question that Mr. Justice was the actual wrongdoer in these cases, there is also no question that it was West Florida Landscaping that lent the name of its legitimate business to Mr. Justice and, thus, enabled him to defraud South Florida Sod and Bayside Sod.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Respondent, West Florida Irrigation & Landscaping, Inc., to pay $29,360.80 to South Florida Sod, Inc., and $18,750.68 to Bayside Sod, Inc., together with pre-judgment interest calculated at the rate specified in Section 55.03, Florida Statutes (2003); and further requiring Old Republic Surety Company to make payment, up to the amount of its bond, in the event that West Florida Irrigation & Landscaping, Inc., fails to make payment in a timely manner. DONE AND ENTERED this 1st day of March, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2005.
The Issue Whether the Respondent is guilty on six counts of charging an advance fee for the listing of time-share estates for sale, in violation of Section 721.20(4), Florida Statutes.
Findings Of Fact Respondent is a corporation organized under the laws of Arkansas and was authorized by the Florida Secretary of State to transact business in the State of Florida from November 1991 through December 1997. Respondent's main office is now located in Mountain Home, Arkansas. Respondent's credit card terminals are in Arkansas. Respondent has an escrow and operating account in Mountain Home, Arkansas. Respondent hired Jack McClure to open and operate its Florida office. Jack McClure held a Florida real estate broker's license. National Resort Mart conducted business from its Florida office in Kissimmee, Florida, until McClure's death in December 1997. Respondent opened and maintained escrow and operating accounts in Florida from 1992 through 1997 for its Florida business. The Florida office was limited to the activities of time-share real estate sales. The Respondent did not list time- shares, nor collect any advance fees for listing time-shares at its Kissimmee, Florida, branch office. Global Title Company of Naples, Florida, conducts the closings for Respondent for the majority of their Florida time- share sales. Respondent advertised its Florida office in its direct mail brochure, sent to Florida time-share owners, with the statement: "Our Orlando office is situated only seven miles from Disney World." Ms. Valnecia Williams of Madison, Florida, owns a time- share unit at Cypress Point Resorts in Central Florida. Williams received a mailed "brochure" from Respondent's home office which advised her that Respondent was in the business of buying and selling time-shares. Based on the Respondent's direct mail flyer, Williams called the Kissimmee, Florida, telephone number to find out information related to her listing. Apparently, the call was automatically switched to the home office. She received some initial information. Several weeks later she called the Respondent's Arkansas office and talked to a different salesperson. Williams agreed to list her time-share, Cypress Pointe Resort, Unit 5206, Week 37, with Respondent on March 5, 1997, at an asking price of $12,9000 in an open listing for a period of a year. Consideration was in the form of a seven percent of gross sale of the unit, or a $750 minimum commission, to be paid to Respondent at the closing of the sale. Respondent charged an advance fee of $439 from Ms. Williams of Madison, Florida, at the time she listed her Florida time-share period at Cypress Point Resort for sale with Respondent. Williams authorized Scott Fisher, Respondent's salesperson in Arkansas to charge the refundable advertising and marketing fee of $439 to Williams' USAA Federal Savings Bank charge card. Williams was not pleased with the service provided by Respondent and, on or about July 28, 1997, demanded a refund from the Respondent. Sometime within the next two months Respondent complied with the request and refunded the fee by crediting Williams' charge card with the same amount. Kim Collins of Faith, North Carolina, owns a time-share unit at Westgate Lakes, Orlando, Florida. Collins received brochures from Respondent's home office seeking a listing for her time-share unit in Florida, approximately one year later. Collins called Respondent at an "800" number which was automatically forwarded to Respondent's main office in Arkansas. Eventually, Collins decided to use Respondent's services and borrowed the money from her mother to pay the advance fee and sign the listing contract. Respondent collected an advance fee from Mr. and Mrs. Richard Collins of Faith, North Carolina, of $439 at the time they listed their Florida time-share period at Westgate Lakes, Orlando, for sale with Respondent, by mail and check to the Respondent's main office in Arkansas. Collins' time-share has been listed for sale with Respondent since July 1, 1996. Dan Coffey of Jacksonville, Florida, owns a time-share unit at Orange Lake in Central Florida. Coffey received a brochure from Respondent's home office and called for more information. Coffey agreed to list his unit for sale with Respondent on October 14, 1996, at a negotiable price of $12,900. Respondent collected an advance fee from Mr. and Mrs. Daniel Coffey of Jacksonville, Florida, of $439 at the time they listed their Florida time-share period of Orange Lake Resort, Orlando, Florida, for sale with Respondent. In like manner, Respondent collected an advance fee from Mr. and Mrs. Rick Rogers of Maumee, Ohio, at the time they listed their Florida time-share period with Respondent. Respondent also collected an advance fee from Mr. and Mrs. Donald Gordon of Pensacola, Florida, at the time they listed their Florida time-share period with Respondent. Respondent collected an advance fee from Mr. and Mrs. William Budai of Duquesne, Pennsylvania, of $539 at the time they listed their Florida time-share period at Westgate Villas, Kissimmee, Florida, for sale with Respondent. The contract signed by each complainant was titled "Listing Agreement." The Listing Agreement between the time- share owner of the Florida unit and Respondent was for the listing of their time-share for sale for a percent of gross sale of the unit to be paid at the closing, with an advance fee payable immediately. All transactions between the owners and Respondent were made through the Respondent's home office in Arkansas. No advance fee was collected within the boundaries of the State of Florida. Complainants Collins and Coffey did not receive refunds of the advance fees they paid to Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, enter a final order that: Finds Respondent guilty of six violations of Section 721.20(4), Florida Statutes. Respondent pay a penalty of $10,000 per violation for each of the six violations, to be paid within thirty (30) days of the entry of the final order. That Respondent refund $439 each to Kim Collins and Daniel Coffey, to be paid within thirty (30) days of the entry of the final order. That Respondent cease and desist from collecting advance fees for the listing of time-share periods for Florida residents and/or Florida time-share units. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1999. COPIES FURNISHED: Mary Denise O'Brien, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James H. Gillis, Esquire James H. Gillis Associates, P.A. 8424 Pamlico Street Tallahassee, Florida 32817-1514 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Philip Nowick, Director Division of Florida Land Sales, Condos, and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
