The Issue The issue is whether Pinewood Estates Assisted Living Facility’s (“Pinewood” or “Petitioner”) application for renewal of its assisted living facility (“ALF”) license should be granted.
Findings Of Fact AHCA is the state agency charged with licensing of ALFs in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. These relevant chapters charge the Agency with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure of and operation of such facilities. At all times relevant, Pinewood was a licensed ALF located in Melbourne, Florida, operating a six-bed ALF under license number 12678. Pinewood’s license also includes limited nursing services, limited mental health (“LMH”), and extended congregate care licenses. The Agency conducts inspections, commonly called surveys, of licensed providers and applicants for licensure to determine the provider or applicant’s compliance with the state’s regulatory scheme governing such facilities. AHCA’s surveys include taking a tour of the facility, reviewing resident records, reviewing the staff files, directly observing the residents, observing the staff’s interaction with the residents, interviewing the facility’s staff, interviewing the residents and their families, observing the dining experience, observing medication pass, observing the activities of the residents during the day, observing the physical plant, conducting an exit interview when possible, and documenting the survey findings. There are different types of surveys. There are initial licensure surveys, relicensure biennial surveys, complaint surveys, monitoring surveys, and revisits, which follow all of the other types. Pursuant to section 408.813(2), the Agency must classify deficiencies according to the nature and scope of the deficiency when the criteria established by law for facility operations are not met. Deficiencies must be categorized as either Class I, Class II, Class III, Class IV, or unclassified deficiencies. In general, the class correlates to the nature and severity of the deficiency. A Class I poses an imminent threat to the residents; a Class II constitutes direct harm; a Class III poses potential or indirect harm to the residents; a Class IV concerns minor violations; and unclassified violations are those that do not fit in the other categories. Normally, when the Agency cites a provider with a Class III violation, it allows 30 days for the provider to correct the deficient practice, unless an alternative time is given. The deficiency must be corrected within 30 days after the facility receives notice of the deficiency. This correction is verified by a revisit survey conducted after the 30 days have elapsed. Correction of a deficiency means not finding the deficient practice during a revisit survey. The Agency conducted a biennial relicensure survey on April 27, 2017, at Pinewood. The Agency cited Pinewood with ten Class III deficiencies related to the following tags or deficiencies: Tag A008, admissions - health assessment; Tag A052, assistance with self-administration; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training – assist with self-administration; Tag A085, training – nutrition and food service; Tag A090, training - Do Not Resuscitate Orders (“DNRO”); Tag A160, records – facility; Tag A167, resident contracts; and Tag AL243, LMH training. Lorraine Henry is the supervisor of the ALF unit for the Orlando office and was in charge of all the surveys conducted at Pinewood. She reviewed and approved all of the deficiencies or tags cited in the surveys and approved the classifications given to each deficiency. The Agency cited Pinewood with Tag A008, for Pinewood’s failure meet the standards related to admissions and health assessments, pursuant to section 429.26(4)-(6) and rule 58A-5.0181(2). Pinewood was required to ensure that the AHCA Health Assessment Form 1823 (“Health Assessment”) was completed entirely by the health care provider for all residents. Pinewood was missing a completed Health Assessment for Resident 4. On page 2, question 4, under “Status,” which asks if the resident “poses a danger to self or others,” was left blank and not answered. On page 4, question B, “Does individual need help with taking his or her medications?” was left blank and not answered. In addition, the type of assistance with medications required was not marked in the appropriate box. This deficiency poses an indirect or potential threat to residents because the facility cannot register changes in a resident’s health unless it has a completed Health Assessment. Because of this indirect threat, it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A052, a violation because Pinewood failed to meet the standards of assistance with self-administration, pursuant to rule 58A-5.0185(3). Assistance with self-administration of medication requires trained staff to open the medication container; read the label aloud to the resident; provide the resident with the medication; observe the resident self-administer the medication; and then document that the medication was provided in the resident’s Medical Observation Record (“MOR”). During this survey, Agency personnel observed Pinewood’s employee, Carmeleta Smith, fail to read the label aloud in front of the resident or to inform the resident which medication the resident was taking during the medication pass procedure. This deficiency poses an indirect or potential threat to residents because it increases the likelihood of medication errors, and it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A054 due to Pinewood’s failure to meet the standards of medication records pursuant to rule 58A-5.0185(5). Pinewood is required to ensure that the MOR contains all of the required information and that the MOR is updated each time the medication is given. The MOR for Resident 5 failed to include the route of the medication for the 21 medications listed for that resident. The entry for Ocutive did not contain the strength or the route of the medication. Moreover, Agency personnel observed Ms. Smith’s failure to immediately sign the MOR after a medication was given to Resident 4. Also, the MOR for Resident 4 did not reflect that the morning medications had been signed as having been given in the morning for 15 of the resident’s medications. This deficient practice constitutes an indirect or potential risk to residents because it increases the likelihood of medication errors and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A085 for its failure to meet the standards of training for nutrition and food service, pursuant to rule 58A-5.0191(6). Pinewood is required to ensure that the person responsible for the facility’s food service received the annual two hours of continuing education. Peter Fellows, as the person responsible for food service, did not have the required two hours of continuing education in 2017. This deficient practice constitutes an indirect or potential risk to residents because it could cause food borne illnesses to spread to the residents, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A090 for Pinewood’s failure to meet the 12 standards of training as to DNRO, pursuant to rule 58A-5.0191(11). Pinewood is required to ensure that the staff must receive at least one hour of training in the facility’s policies and procedures regarding DNRO within 30 days of employment. Pinewood’s employee, Sharon McFall, had not received in-service training on the facility’s policies and procedures regarding DNRO within 30 days of hire. This deficient practice poses an indirect or potential risk to residents because in case of an emergency situation where a resident stops breathing, the staff has to understand the facility’s DNRO procedures and the steps that need to be taken; and, therefore, was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A160 for Pinewood’s failure to meet the standards of facility records, including admission and discharge records pursuant to rule 58A-5.024(1), which requires Pinewood to maintain accurate admission and discharge logs. Pinewood’s admission and discharge log did not include the name and date of admission for Resident 2. AHCA personnel observed Sherine Wright, the legal assistant for the administrator, and purportedly a contract employee of Pinewood, adding Resident 2’s information to the admission and discharge log after they were already residing in the facility. This deficient practice poses an indirect or potential threat to residents because the facility would be unaware as to the residents who are actually residing in the facility, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A167 for its failure to meet the standards of resident contracts, pursuant to rule 58A-5.024, which requires Pinewood to maintain completed resident contracts in the residents’ files. Resident 4’s resident contract failed to include the following required provisions: the facility’s refund policy that must conform to section 429.24(3), a 45-day notice of discharge, a 30-day advance notice of rate of increase, and that residents must have a health assessment upon admission and then every three years thereafter or after a significant change in the resident’s health. This deficient practice constitutes an indirect or potential risk to residents because it exposes the residents to potential financial abuse because the residents would not know their rights when they are discharged or when the rates are being increased. The deficient practice was properly classified as a Class III deficiency. Finally, the Agency cited Pinewood with Tag AL243 for Pinewood’s failure to meet the standards regarding the LMH training pursuant to section 429.075(1) and rule 58A-5.0191(8). Having elected to maintain a LMH license, Pinewood is required to ensure that the administrator, managers, and staff complete a minimum of six hours of specialized training in working with individuals with mental health diagnosis within six months of employment. Carmeleta Smith did not have the required minimum of six hours of specialized training even though she had been employed at the facility for 16 months. This requirement remains in place whether a LMH resident is present at the facility or not, so long as the facility elects to hold a LMH license. This deficient practice constitutes an indirect or potential risk to residents because without the training, the staff will not be properly trained to care for LMH residents, and was properly classified as a Class III deficiency. Throughout the duration of the relicensure survey, the Agency surveyors were routinely denied full access to facility records, resident files, and areas of the facility by the self- declared representative of Pinewood’s administrator and contract employee, Sherine Wright. Ms. Wright interfered with the Agency’s survey process by restricting access to documents and alerting residents that family interviews would be taking place. Ms. Robin Williams, an Agency surveyor, told Ms. Wright that she was interfering with the survey process, but Ms. Wright continued to control the survey process and continued to give Ms. Williams pieces of paper she said were pulled from files, rather than providing the surveyor with access to the complete files. Ms. Williams also observed Ms. Wright assisting a resident who was returning to the facility with a family member and observed her talking to the family member and helping the resident settle back into her bedroom. Ms. Smith was at the facility at that time, yet she did not assist the resident. It was Ms. Wright who assisted the resident and the family member to settle the resident back into her bedroom. Based upon their observations, she considered Ms. Wright to be staff working at Pinewood. Subsequent to the biennial relicensure survey, the Agency conducted an unannounced monitoring visit in conjunction with a complaint survey (#2017003680) on May 8 through 15, 2017. As a result of this survey, the Agency cited Pinewood with one Class III violation, Tag A190, as to Administrative Enforcement; and with one unclassified violation, Tag CZ814, as to background screening. Lorraine Henry, as the ALF supervisor for the Orlando field office, reviewed and approved the tags or deficiencies cited in this survey and their classifications. The Agency cited Pinewood with Tag CZ814 for failure to meet the standards of background screening pursuant to section 435.12(2)(b)-(d), Florida Statutes, requiring that the facility ensure that all its employees had completed a Level II background screening. During the complaint investigation, Ms. Wright denied that she was a staff person of Pinewood to a senior Agency surveyor, Victor Kruppenbacher. However, because of his observations, Mr. Kruppenbacher considered Ms. Wright to be a staff member working at the facility. Ms. Wright was the person who greeted him, and was the person who called the Administrator, Mr. Fellows, on the phone when questions arose concerning access to files or to Pinewood residents. Mr. Kruppenbacher further observed Ms. Wright interacting with the residents and providing guidance and direction to the residents. Mr. Kruppenbacher observed a resident asking Ms. Wright a question, after which she put her arms around the resident and guided the resident into the resident’s bedroom. Ms. Wright was very familiar with the resident population, called residents by their names, and answered the residents’ questions. Ms. Wright clearly appeared to control the operations at the facility; and had access to the residents, their belongings, and their areas of the facility. Therefore, she was required to have a Level 2 background screening according to Florida law, which she did not have. This deficient practice was properly classified as an unclassified violation, since it did not fall within the four classes of violations, yet exhibited a failure to follow the law regarding ALF staff members. The Agency also cited Pinewood with Tag A190, for failure to meet the standards of Administrative Enforcement pursuant to section 429.075(6) and rule 58A-5.033(1) and (2). The facility may not restrict the Agency’s surveyors from accessing and copying the facility’s records including the employee files, the facility’s records, and the residents’ files. The facility may not restrict the Agency’s surveyors from conducting interviews with the facility staff or with the residents. Once again, Ms. Wright interfered with the survey process. She would not let the other staff member on site, Ms. Smith, answer any of his questions, which left Ms. Wright, the non-licensed person on-site, as the only one who answered any of the surveyor’s questions. She would not let the surveyor speak to the residents and would not provide him with the records he requested, including the residents’ records and the staffing schedule. She refused to allow the surveyor into all of the rooms within the licensed facility and would not identify a person working in the facility, about whom he inquired. She refused to let the surveyor speak with Mr. Fellows after she called him on the phone. At the beginning of the survey, Ms. Wright denied Mr. Kruppenbacher access to an unlicensed property contiguous to the facility and tried to deny him access to the licensed facility. Ms. Wright refused to allow a worker, who was working in the office in the facility, to provide her name to the surveyor. Ms. Wright refused to identify herself to the surveyor and would only state that she was Mr. Fellows’ business partner. Ms. Smith, the staff member present, identified her as Sherine Wright. At 2:00 p.m., Ms. Wright contacted the facility’s administrator, Mr. Fellows, by telephone, but would not allow the surveyor to speak with Mr. Fellows. This deficiency poses an indirect or potential threat to residents because the Agency is unable to get a clear picture of how the facility is being operated and was properly classified as a Class III deficiency. On August 1, 10, and 11, 2017, the Agency conducted multiple revisits (revisit survey dated August 11, 2017, CGOJ12) to the relicensure survey of April 27, 2017. As a result, the Agency cited Pinewood with nine uncorrected Class III violations for the following tags: Tag A008, admissions and health assessment; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training with assist with self- administration of meds; Tag A085, training as to nutrition and food service; Tag A090, training on DNRO; Tag A160, records as to the facility; Tag A167, resident contracts; Tag AL243, LMH training. These deficient practice tags all remained uncorrected from the original survey of April 27, 2017. Pinewood was only able to demonstrate that it had corrected the practice cited in Tag A052, which was cleared by the Agency as corrected. The deficiencies and the classifications were reviewed and approved by the Agency’s regional ALF supervisor, Lorraine Henry. During the revisit, Mr. Kruppenbacher was accompanied by two other surveyors, Vera Standifer and Krystal Hinson. During this relicensure survey, Pinewood’s alleged contracted employee, Ms. Wright, was not cooperative and would not provide the surveyors with the documentation they requested, for the third consecutive survey event. Ms. Wright would not provide AHCA personnel with the staff files, claiming they were privileged legal office documents from the law office of Peter Fellows. During the revisit survey, the Agency once again cited Pinewood with Tag A008 for failure to meet the standards of the admissions and health assessments. The Agency surveyors requested the file of each current resident, including the Health Assessments. The records given by Pinewood’s staff showed that Resident 1 was admitted on September 1, 2016; Resident 2 was admitted on March 23, 2017; Resident 3 was admitted on December 6, 2016; Resident 4 was admitted on March 1, 2016; and Resident 5 was admitted on January 15, 2016. Resident 1’s Health Assessment was not provided by the facility. Residents 2, 3, and 4’s Health Assessments did not include a signed and completed Section 3 related to “Services offered or arranged by the facility for the resident.” Further, Resident 5’s Health Assessment, completed on January 15, 2016, noted that the resident had a PEG tube. (A PEG tube is a percutaneous endoscopic medical procedure in which a tube is passed into the patient’s stomach through the abdominal wall most commonly to provide a means of feeding when oral intake is not adequate.) On August 10, 2017, Resident 5 no longer had a PEG tube, but the resident’s file did not contain an updated Health Assessment documenting the removal of the PEG tube. Ms. Hinson interviewed Resident 5, who stated that the PEG tube had been removed months earlier. The resident should have had an updated Health Assessment reflecting the removal of the PEG tube because this is considered a change of circumstances requiring an updated Health Assessment. There was no updated Health Assessment to show what the current risk factors would be for this resident. Moreover, the medical certification on Resident 5’s Health Assessment was incomplete because the name of the examiner was not printed; the signature of the medical examiner was illegible; there was no medical license number and no address or phone number for the examiner; and no date for the examination. Section 3 of the Health Assessment was not completed by the facility or signed by the facility. This deficient practice poses an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency again cited Pinewood with Tag A054 for failure to meet the standards of medication records. The Agency’s surveyors requested resident records, including the MORs from Pinewood’s employee, Ms. Smith. Pinewood’s other employee, Ms. Wright, would not give full access to the MORs and would only hand the surveyors some of the records from the MOR book that she determined the Agency could see instead of the entire MOR book, which is what the surveyors requested. The surveyors were only able to review the MORs from August 1 through August 10, 2017, instead of two months of MORs that were requested and customarily reviewed. The Agency was able to determine that Resident 3’s MORs were left blank for the dosage of two medications for various days: the dosage of Donepezil on August 9, 2017, at 9:00 p.m., and the dosage of Clonazepam for August 2, 3, 5, 6, 7, 8, and 9. Additionally, the MORs were not provided for Resident 4. The MORs for Resident 5 were left blank for the dosage of Loratadine from August 1 through 10, 2017, and for Oxycodone for August 9, 2017. This deficiency constitutes an indirect or potential risk to residents and Tag A054 was properly classified as an uncorrected Class III deficiency. During the same revisit surveys on August 1, 10, and 11, 2017, the Agency again cited Pinewood with Tag A167 as to records and resident contracts, and requested all of the resident files. Resident 1’s file was not provided to the surveyors; therefore, the surveyors were not able to review the resident’s contract. Resident 3’s resident contract was signed by someone other than Resident 3, but the file did not contain a power of attorney for Resident 3. Resident 4’s resident contract was never provided to the surveyors so they were not able to review it. This deficient practice constitutes an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency conducted a complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, USQF11), and cited Pinewood with two Class III violations for Tag A055 related to medication storage and disposal, and for Tag A057 for medication over-the-counter (“OTC”). Lorraine Henry, the ALF supervisor, again reviewed the proposed deficiencies and the classifications and approved them. Pinewood violated Tag A055 as to storage and disposal of medication pursuant to rule 58A-5.0185(6), which required the facility to ensure that the medications be centrally stored and kept in a locked cabinet or a locked cart at all times. On August 17, 2017, Mr. Kruppenbacher observed that the medication cart was left unlocked and accessible to residents. Pinewood’s failure to keep medications in a locked cabinet or cart posed an indirect or potential risk to residents because a resident could have easily taken and ingested a medication from the unlocked cart. This deficient practice was properly classified as a Class III deficiency. The Agency also cited Pinewood with Tag A057 related to medication OTC, pursuant to rule 58A-5.0185(8), which required Pinewood to ensure that OTC products be labeled with the resident’s name and the manufacturer’s label. Mr. Kruppenbacher performed an inventory of the centrally-stored medication cart and found five unlabeled OTC medications stored in the medication cart which did not contain the name of a resident. This deficient practice posed an indirect for potential threat to residents, because any resident could have ingested one of the medications from the unlocked cart, and was properly classified as a Class III deficiency. AHCA conducted an unannounced complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, EN1W11), which resulted in Pinewood being cited for the following: Tag A077, related to staffing standards as to administrators as a Class II; Tag A161, related to staff records as a Class III; Tag A162, related to resident records as a Class III; and Tag CZ816, as to background screening and the compliance attestation as an unclassified violation. Ms. Henry personally wrote Tag A077 and approved the other three tags and their classifications. During the unannounced complaint survey on August 1, 10, and 11, 2017, the Agency cited Pinewood with Tag A077 for failure to meet the requirements of staffing standards as to administrators pursuant to section 429.176 and rule 58A-5.019(1), which requires that the facility be under the supervision of an administrator, who is responsible for the operation and maintenance of the facility, including the management of all staff and all persons who have access to the residents and their living areas and belongings; and who must ensure that the staff are qualified to work in the facility and have documentation of an eligible Level 2 background screening, annual documentation of being free from symptoms of communicable disease, and documentation of all of the required training. Pinewood must also maintain and provide complete resident records for all of the residents. On August 10, 2017, the surveyors’ observations led them to conclude that Ms. Wright was in control of the day-to-day operation of the facility. Ms. Wright provided all of the answers when questions were asked concerning the operation of the facility. Ms. Wright would not allow staff to answer questions without her input. She controlled what information the surveyors were allowed to review and what documents were provided to the surveyors. Ms. Wright would not allow the staff at the facility to access records, employee files, or resident records. The staff schedule provided to the surveyors by Ms. Wright revealed that “Sharon” (a/k/a Sherine) Wright was listed as the administrator. As such, Ms. Wright was required to have a Level 2 background screening. Pinewood provided no evidence that Ms. Wright had proper training, background screening results, or CORE certification to be the administrator of an ALF. Mr. Fellows, the listed Administrator according to facility filings with the Agency, was not present at the facility on August 1, 10, or 11, 2017, while the Agency survey was being conducted. On August 10, 2017, the surveyors requested the employee files and resident records from Pinewood’s staff member Ms. Smith. The facility failed to provide the employee files. After the request to Ms. Smith, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are privileged legal office records. On August 10, 2017, the facility’s information on the background screening indicated that Pinewood staff member Sharon McFall was listed as an employee on the background clearinghouse database. The staff schedule, which covered the period from August 1 through 12, 2017, documented Ms. McFall as working at the facility. Ms. Smith admitted that Ms. McFall works at the facility. The Agency’s background screening website showed that Ms. McFall was hired on November 1, 2015, and that her background screening had expired on March 25, 2017, almost five months prior to this visit. On August 10, 2017, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are legal documents. Pinewood refused to allow the surveyors to review the employees’ files; failed to have an eligible Level 2 background screening for Ms. McFall, as well as for Ms. Wright, who was in charge of the day-to-day operations; failed to provide access to the resident file for one resident; and provided an incomplete file for another resident. Taken together, these events posed a direct threat to the physical or emotional health, safety, or security of the residents. Without access to this information, the Agency is unable to determine exactly what is happening with the residents, and to determine if the facility is operating according to Florida’s applicable statutes and rules governing ALFs. Moreover, anyone who has direct access to the residents, to their personal belongings, and to their rooms, must have a Level 2 background screening. Tag A077 was properly classified as a Class II deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A161, related to staff records pursuant to section 429.275(2) and rule 58A-5.024(2). Pinewood was required to maintain personnel records for each staff member, which include, at a minimum, documentation of compliance with Level 2 background screening; documentation of compliance with all of the required training and continuing education requirements; and a copy of all licenses or certifications for all staff. As discussed at length above, Ms. Wright told the surveyors that they would not be allowed to review the employee files because they were legal documents from the legal office of Mr. Fellows. No employee files were provided to the surveyors on any of the August survey dates. This deficient practice poses an indirect or potential threat to the residents because the surveyors were not able to verify whether the staff has the required training to carry out their duties and the required documentation, such as Level 2 background screenings. This tag was properly cited as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A162, related to resident records, pursuant to rule 58A-5.024(3). Pinewood was required to maintain each resident’s records, which must contain, among other things, a Health Assessment; a copy of the resident’s contract; documentation of the appointment of a health care surrogate, health care proxy, guardian, or a power of attorney; and the resident’s DNRO. On August 10, 2017, the surveyors requested all of the resident files from Ms. Smith. Resident 1’s file was not provided. Resident 5’s file did not contain an updated Health Assessment reflecting when the PEG tube had been removed, as detailed in paragraph 23 above. Pinewood’s failure to maintain the resident files and current Health Assessments poses an indirect or potential threat to residents and was properly classified as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag CZ816 related to background screening and compliance with attestation to section 408.809(2)(a)–(c). Pinewood was required to ensure that its staff members received a Level 2 background screening every five years. As documented above, Pinewood did not have a current background screen on file for employee Sharon McFall. Pinewood also refused to provide a background screening result for contracted employee Ms. Wright. Pinewood’s failure to have current Level 2 background screenings for its staff was properly labeled an unclassified violation. The Agency conducted an unannounced monitoring visit related to the complaint investigation (#2017003680) regarding unlicensed activity at Pinewood on August 1, 10, 11, and 15, 2017 (survey dated August 15, 2017, TYOU12), and cited Pinewood with Tag A190 for administrative enforcement for one Class II deficiency, and Tag CZ814 for background screening clearinghouse for one unclassified violation. During this monitoring visit, the Agency cited Pinewood with Tag A190 for administrative enforcement pursuant to section 429.075(6) and rule 58A-5.033(1), (2), and (3)(b) as a Class II violation. Pinewood is required to cooperate with Agency personnel during surveys, complaint investigations, monitoring visits, license applications and renewal procedures, and other activities to ensure compliance with chapters 408, part II, and 429, part I; and Florida Administrative Code Chapters 58A-5 and 59A-35. During this survey, Mr. Kruppenbacher was interviewing Ms. Smith when Ms. Wright interrupted the interview and stated that she was the legal representative of Mr. Fellows’ law firm and his legal representative. When Mr. Kruppenbacher asked Ms. Wright if she worked at the facility, she would not answer. Mr. Kruppenbacher asked Ms. Wright the correct spelling of her name, at which time she walked out of the interview. At 11:40 a.m., Mr. Kruppenbacher was again interviewing Ms. Smith when Ms. Wright interrupted the interview. Mr. Kruppenbacher had asked Ms. Smith to provide him with MORs for review. Ms. Wright removed the MORs from the medication cart and stated that she would give the surveyors what they needed to see. While Ms. Wright was pulling MORs from the notebook, Mr. Kruppenbacher took a second notebook that was on the medication cart. Ms. Wright grabbed the notebook from him and would not let him see it, stating that this was something that the Agency did not need to see. On August 10, 2017, Mr. Kruppenbacher asked the staff for a second time to provide access to the employee files. Ms. Wright then stated that the surveyors would not be allowed to review the employee files because they are legal office records. No employee files were provided to the surveyors despite multiple requests, both written and oral. On August 10, 2017, Mr. Kruppenbacher requested to see the background screening for staffer F, Thomas Weaver, from Ms. Wright. Mr. Weaver was listed on the staff schedule provided to the surveyors that same day, and he was observed driving Pinewood’s residents to an activity. Ms. Wright said that he was only the maintenance man and did not need a background screening. Later, AHCA surveyors requested that Ms. Wright provide the file for Resident 1, but the file was never provided. At 3:00 p.m., a surveyor was attempting to interview Resident 3, and Ms. Wright stopped the surveyor from speaking to the resident. On August 10, 2017, at 3:15 p.m., during an attempted exit interview, Mr. Kruppenbacher asked Ms. Wright if her name was pronounced “Sharon” Wright or “Sherine” Wright. Ms. Wright refused to tell him whether her first name was Sherine or Sharon and demanded that he leave the facility immediately. The identity of Sherine Wright, who also calls herself Sharon, has been a constant problem during all of the surveys. The undersigned expressed an interest during the hearing in having Ms. Wright testify, since she seemed to be a central figure throughout the survey process. Neither Ms. Wright nor any employee of Pinewood (except the Administrator, Mr. Fellows) testified at the hearing concerning the issues raised and deficiencies found by AHCA surveyors. The Agency had subpoenaed Ms. Wright to testify at hearing, yet she neither appeared nor gave an excuse for not appearing. The surveyors testified to Ms. Wright giving her name as both Sherine and Sharon at different times. Regardless of how she identified herself, the credible evidence supports that there was only one Ms. Wright present at the various surveys conducted by AHCA. Ms. Wright lives on the property where Pinewood is located, in the “back” house, which is about 30 feet behind the ALF. Ms. Wright is the owner of record of the property at 4405 Pinewood Road, Melbourne, Florida 32034, where Pinewood is located. After the surveys at issue were conducted, the Agency discovered that Sherine Wright has been convicted of a second degree felony for exploitation of an elderly person in the amount of $20,000 to under $100,000, pursuant to section 825.103, Florida Statutes, in Broward County, Florida, Case No. 01-4230CF10B. The conviction includes the special condition that Ms. Wright should not be employed or have any financial involvement with the elderly (status over 60). This second degree felony conviction is a disqualifying offense under section 435.04, which means that Ms. Wright could never receive an eligible Level 2 background screening allowing her to work at Pinewood or any licensed facility serving the elderly. From the eye witness testimony of several of the AHCA surveyors on different occasions, Ms. Wright had access to residents’ rooms, their living areas, and, presumably, their personal belongings. One surveyor, Kristal Hinson, observed Ms. Wright entering residents’ rooms on August 10, 2017. Another, Vera Standifer, observed the same behavior by Ms. Wright. At the April 27, 2017, visit, surveyor Robin Williams saw Ms. Wright take a resident to her room and help her settle in. Mr. Kruppenbacher observed Ms. Wright with her arm around a resident, walking him to his room. Ms. Wright clearly had access to files, to resident records, and to staff records. She was observed having access to residents’ medications and the medications chart. Despite these observations by AHCA surveyors, Mr. Fellows testified that Ms. Wright was merely a contract employee of Pinewood who had no access to residents, their belongings, or their private living spaces. The overwhelming evidence in this matter support AHCA’s surveyors on Ms. Wright’s involvement with resident care. Other than Mr. Fellows’ testimony on this issue, no evidence was presented by Pinewood to support a contrary view. Not only did Ms. Wright have access to all aspects of the residents’ lives and the facility’s files, but she was forcefully obstructionist whenever any surveyor made reasonable requests for files and records that are required by state law and rules to be kept by the facility. She was neither a licensed professional in any aspect of resident care nor was she an attorney, yet she repeatedly refused to cooperate with even the most basic requests from the surveyors, often claiming some unspecified legal privilege concerning the documents. She only added to the surveyors’ personal observations leading to findings that significant violations occurred. After all, how can a surveyor confirm the existence of required records when the only identified, non-licensed person present at the surveys refused them access, often, as she said to the surveyors, because the requested documents were somehow “legally protected” with her being some sort of representative of Mr. Fellows’ law firm? They were “legally protected,” but only from unlicensed Pinewood personnel who had no business seeing them, not from AHCA surveyors with every right to examine all facility records, especially on a relicensure survey. The surveyors had every justification for believing Ms. Wright was involved in the day-to-day operations of the facility. Moreover, when the surveyors were on site, she was the one who contacted the absent Mr. Fellows by telephone to inform him as to what was transpiring. Yet Mr. Fellows never asked to speak with the surveyors when called during their visits, nor did he direct Ms. Wright to cooperate with their reasonable requests. Each of the surveyors frankly testified that they believed Ms. Wright worked for Mr. Fellows or was his business partner. They were each justified in citing the facility for its complete failure to cooperate throughout the survey process. From at least April 27 to August 11, 2017, Pinewood had an individual working at the facility and running its day-to-day operations with a second degree felony conviction for exploitation of the elderly, a disqualifying offense. Having such a person working at Pinewood poses a direct threat to the physical or emotional health, safety, or security of the residents because this is a person who, as a matter of law, is forbidden to work with the residents of an ALF because her criminal history places the residents’ health and welfare at serious and direct risk of harm. This deficient practice is a serious offense that was properly classified as a Class II violation. During the exit interview, the surveyors informed the facility that it had failed to provide the employee files, the MORs notebook, the August 2017 MOR for Resident 4, the resident file for Resident 1, and the dates of birth for apparent staffers Ms. Wright and Mr. Weaver, as well as background screenings for Ms. Wright. Pinewood failed to cooperate with the survey process, to allow the surveyors to conduct a private interview with Resident 3, to provide requested employee records, to provide Resident 1’s file, and to provide the complete MORs. These facts, along with the failure to have Ms. Wright identify herself, and to provide the dates of birth for Mr. Weaver and herself pose a direct threat to the physical or emotional health, safety, or security of the clients because the Agency cannot determine whether Pinewood is following the applicable state rules and statutes; and, therefore, the Agency cannot ensure the safety of the residents. Tag A190 was correctly classified as a Class II deficiency. To add to the lack of control by Mr. Fellows as the nominal administrator of Pinewood, interviews with non-facility nursing personnel further supported the lack of institutional control demanded of facilities that care for the elderly. One local nurse interviewed by Mr. Kruppenbacher said she was uncomfortable working at the facility because the facility required her to provide nursing care in the bathroom, and required a staff person to be present in the bathroom when the care was being provided. This negated any privacy rights of the resident under that nurse’s care. Pinewood failed to provide a safe environment, and to keep certain residents free from verbal abuse and neglect. Its failure to allow residents to be treated with respect and consideration for personal dignity and privacy, along with the failure to provide a 45-day notice before discharging Resident 6 over an insurance issue, posed a direct threat to the physical or emotional health, safety, or security of that resident. This supports that Tag A030 was properly classified as a Class II deficiency. During the licensure period, Pinewood committed 30 deficiencies, including nine uncorrected Class III deficiencies, three Class II violations, and three unclassified violations involving background screening. All of these demonstrate that Pinewood did not meet the minimum licensure standards to maintain licensure, and was never in compliance with the requirements set out in the authorizing statutes and applicable rules during the surveys conducted at the ALF. During this period, Pinewood did not pass a single biennial survey, a revisit survey, a complaint survey, or monitoring surveys, thus never demonstrating regulatory compliance. Pinewood’s willingness to operate in regulatory noncompliance in addition to allowing a person with a disqualifying offense, and who should have been prohibited from working at an ALF, to operate the facility, and to allow non- background screened employees to provide care and services to residents poses a direct and indirect threat to the health and safety of Pinewood’s residents. Therefore, upholding the Agency’s denial of licensure renewal is the only way to ensure the health, safety, and welfare of Petitioner’s residents. At the hearing, Mr. Fellows submitted exhibits, which he testified he sent to the Agency by facsimile or by mail sometime after April 27, 2017, in an attempt to correct the deficiencies cited in the April 27, 2017, survey. However, Mr. Fellows does not know or remember the dates when the documents were mailed or faxed or who sent them. The Agency objected to Petitioner’s exhibits on the grounds of authenticity. Without any testimony from agents or employees of Pinewood, it is impossible to determine whether these documents were prepared in the normal course of resident care; whether they were completed well after the actual care, if any, had been provided; or are even responsive to the deficiencies alleged in the NOI issued by AHCA. Therefore, they are entitled to little, if any weight, for purposes of this Recommended Order. Mr. Fellows testified that the Agency is required to do a desk review of documents he allegedly faxed to AHCA’s regional office. He claims the documents offered clear up any and all issues raised by the Agency in its NOI. However, without authentication as to the timeliness and thoroughness of the documentation as responsive to the violations found by AHCA, these documents are hearsay, unsupported by evidence as to their authenticity by anyone in a position to know when, how, and upon what basis they were created. The undersigned cannot rely upon the faxed documentation, even if it did address some of the principal issues raised by the Agency, as evidence of compliance. The most honest statement made by Mr. Fellows was that he probably got in “over his head” concerning his venture of trying to run an ALF. He was rarely present at the facility during the many months the surveys were taking place. During this time, he was practicing law in Miami, far from the day-to- day operations of Pinewood. Administrators are not supposed to run facilities as absentees, having no other licensed administrative staff present. Moreover, he never had a licensed assistant administrator or other professional present to speak to the surveyors on his behalf. The Agency was justified in making all of its findings in the series of seven surveys in 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order upholding the Agency’s decision to deny Pinewood’s application for relicensure. DONE AND ENTERED this 30th day of November 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 30th day of November, 2018. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Peter Fellows Pinewood Estates Assisted Living Facility 4055 Pinewood Road Melbourne, Florida 32934 (eServed) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
The Issue Whether Petitioner, Gateway Farms, LLC, is entitled to payment from Landscape Service Professionals, Inc., and the Gray Insurance Company, as Surety, pursuant to sections 604.15 through 604.34, Florida Statutes (2015), for the purchase of trees; and, if so, in what amount.
Findings Of Fact The Parties Gateway is a producer and seller of agricultural products, including slash pine trees. Gateway operates tree farms on 200 acres in five different locations in Columbia, Alachua, and Suwannee Counties. David Hajos is the owner and principal operator of Gateway. Mr. Hajos has 17 years of experience in growing, harvesting, and selling pine and other species of trees in Florida. Respondent Landscape is a Florida licensed dealer in agricultural products, pursuant to chapter 604. Landscape is a full-service landscape business located in Tamarac, Florida. Sandy Benton has been the president of Landscape for 18 years. Respondent, Insurance Company, filed a denial of the claim and was represented at hearing by Landscape’s counsel. Gateway has been doing business with Landscape for many years, with no indication of prior problems relating to the quality of trees provided. Lynn Griffith, Landscape’s plant and soil expert, considers Gateway to be a competent and professional grower. The Setting At all relevant times, Landscape was a contractor responsible for installing landscaping at the Palm Beach County Solid Waste Authority (SWA) site on Jog Road in Palm Beach County, Florida. Pursuant to orders placed by Landscape, Gateway sold a total of 148 slash pines for use at the SWA site. The invoices for those pines are dated January 22 and 23, and February 9 and 16, 2015. Upon their arrival at the site, authorized personnel of Landscape received, inspected, and accepted the 148 slash pine trees. No problems or concerns were expressed regarding the delivery or condition of the slash pines. The Dispute Giving Rise to this Proceeding Between 20 and 30 of the trees ordered from Gateway were intended as replacement trees for the approximately 150 slash pines provided by six other vendors that had been planted by Landscape, and then died. When the dead trees were removed by Landscape, pine beetles were observed infesting the trees. Within several weeks of planting, 58 of the slash pines purchased from Gateway began to show signs of decline, resulting in their eventual death. Landscape consulted with the Palm Beach County Extension Service and industry professionals as to the cause of the death and decline of the slash pine trees, who undertook an investigation into the same. Slash pine trees are very sensitive and can be easily stressed. Stress can be caused by a variety of factors including: transplanting; harsh handling; bark exposure to sunlight, including superficial wounds to the bark; too much or too little water; or planting too deeply. The stress will cause a tree to emit chemicals that attract beetles, which inhabit the trees and may kill a stressed tree within a week or two of the infestation. In March 2015, Lynn Griffith, an agricultural consultant, conducted an SWA site visit. Mr. Griffith noted that a majority of the planted pines were healthy, but there were some that were not doing well; some had holes in them indicative of a pine beetle infestation. In his report dated March 12, 2015, Mr. Griffith opined on the impact of the ambrosia (pine) beetle infestation on the slash pines: The quantities of boreholes in some of the dead or declining pines would lead me to conclude that borers could be a primary cause of death, but in other cases the number of holes was low, indicating the pine decline was initiated by other factors. In an e-mail dated April 24, 2015, Ms. Benton advised Gateway (and JWD Trees, another supplier of slash pines to the SWA site) that the cause of the death and decline of the slash pine trees were because the two suppliers failed to properly prepare them in the nursery, and had sold them to Landscape with root systems inadequate to support the normal performance of the plant. At hearing, Ms. Benton’s opinion regarding the cause of death of the pines was echoed by John Harris, accepted as an expert in landscape economics and arborism. Mr. Harris’s opinion centered on only one possible explanation for the trees’ demise: a failure to have an adequate root system or an inability of the roots to generate new growth. Typically, this is caused by improper “hardening off” of the root system by the grower. However, on cross-examination, Mr. Harris acknowledged that while pine beetles typically infest stressed trees, if the beetle population builds up enough in an area they will attack otherwise healthy trees. At hearing, Mr. Hajos testified that the pine trees he supplied to Landscape had been properly hardened off for a period of six weeks: Hardened off is a process when you dig a tree and you hold it until it starts to regenerate new roots, so instead of just digging it up and selling it we dig it up and hold it under optimal irrigation and nursery conditions before we ship the tree. Mr. Hajos further testified that any trees that are going to die due to the stress of being dug out of the ground will die during the hardening off process. Mr. Hajos attributed the death of the Gateway trees to several factors, including stress caused by improper lifting of the trees during loading and unloading, stress caused by a delay in planting the trees after they arrived at the SWA site, and the pre-existing pine beetle infestation. Mr. Hajos examined a photograph received in evidence and explained that it showed a tree being improperly lifted by Landscape personnel during unloading. The photograph showed the strap around the tree trunk doing the primary lifting. The result is that rather than distributing the pressure between the trunk and the strap on the root ball, the root ball will be loosened, which will stress the tree. Mr. Hajos testified that he was aware that the Gateway trees that had been delivered to the SWA site were left on the ground for days before being planted. This testimony was corroborated by Landscape’s Daily Job Report log which reflected the delivery of the first load of Gateway pines to the SWA site on January 23 and 24, 2015, but that planting of those trees did not begin until January 29, 2015. On one occasion, a Landscape truck that had picked up trees from Gateway, broke down in Ocala on its return trip to Palm Beach County and had to return to the Gateway site in High Springs. There, the trees were unloaded, and then reloaded onto a different truck where they were delivered two days later to the SWA job site. This inordinate delay and additional loading and unloading further stressed the trees. Once Landscape became aware that it had a beetle infestation at the SWA site, it began a preventative spray program. However, once a pine beetle has entered the bark of a pine tree preventative spraying will be ineffective at eradicating the pest. Newly planted pine trees at the SWA site were not sprayed on the day of planting, thereby providing the pine beetles an opportunity to infest the new trees. Guy Michaud was Landscape’s job foreman at the SWA site. Mr. Michaud has been in the business of planting trees since 1983, and has worked for Landscape for 14 years. Mr. Michaud could not testify with certainty that the Gateway trees died of inadequate roots, as opposed to a beetle infestation. None of the other species of trees sold by Gateway for use at the SWA site experienced problems. Based on the totality of the evidence, it is more likely than not that a combination of factors contributed to the SWA slash pine deterioration, including delays in planting the trees after delivery, rough handling, and the beetles. None of these causes are attributable to the actions of Gateway. Likewise, the greater weight of the evidence does not support a conclusion that the trees sold by Gateway to Landscape were non- viable nursery stock. Subsequent to filing its claim in the amount of $13,462.30 with the Department, Gateway received a payment of $5,528.84 from Landscape. Thus, the unpaid balance due Gateway for the 58 slash pines is $7,933.46. Gateway is entitled to payment in the amount of $7,933.46 for the slash pine trees it provided to Landscape. Besides the amount set forth above, Gateway claims the sum of $50.00 paid for the filing of the claim against Landscape and its bond. The total sum owed to Gateway by Landscape is $7,983.46.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services approving the claim of Gateway Farms, LLC, against Landscape Professional Services, Inc., in the total amount of $7,983.46 ($7,933.46 plus $50 filing fee); and if Landscape Professionals Services, Inc., fails to timely pay Gateway Farms, LLC, as ordered, that Respondent, The Gray Insurance Company, as Surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 18th day of March, 2016.
The Issue The issues in this case are framed by the six-count Administrative Complaint, DPR Case No. 9180247, which the Petitioner, the Department of Professional Regulation, Division of Real Estate, filed against the Respondent, Gary W. Palmer. The first four counts allege the improper handling of an "escrow dispute" in violation of the following sections of the Florida Statutes (1991) and rules of the Florida Administrative Code: Count I, Section 475.25(1)(b); Count II, Section 475.25(1)(d)1.; Count III, Section 475.25(1)(k); and Count IV, Rule 21V-10.032. Counts V and VI allege violations of Section 475.25(1)(b) and Rule 21V-14.012(2) and (3), regarding the general manner in which the Respondent handled all escrow monies.
Findings Of Fact The Respondent, Gary W. Palmer, is a licensed real estate broker in the State of Florida. He has been licensed for approximately 15 years. Other than this proceeding, he has not been the subject of any discipline or any proceeding for alleged violation of Florida's real estate licensure laws or rules. In the summer and fall of 1990, a licensed real estate salesman named James Woods worked for the Respondent. On or about July 30, 1990, Woods entered into a contract for the purchase of real estate from an elderly woman named Estella Bagnell, through her son, Louis Bagnell, who had a power of attorney to conduct the transaction on his mother's behalf. The seller had listed the property through Century 21, Link Realty, Inc. (Link Realty). Shirley Link was the owner and real estate broker of the company. In the transaction, the seller was represented by Marge Lundberg, a licensed real estate salesperson. Under the contract, Woods made a $500 earnest money deposit and was to pay an additional $2,500 cash at the time of closing. Under the terms of the contract, the earnest money deposit was given to the Respondent, who was to hold it in escrow. The seller was to take back a purchase money mortgage for the balance of the purchase price at the time of closing. The closing was to take place on or about August 30, 1990. If Woods was unable to close, the seller was to be paid the $500 earnest money deposit. At Woods's request, the closing was delayed to September 6, 1990, to give him more time to come up with the down payment. Notwithstanding the delay, Woods was unable to pay the down payment, and the deal did not close. Lundberg telephoned Louis Bagnell and advised him that the transaction had not closed but that she had another prospect. A contract to sell the property to the second buyer was offered by the buyer on September 10, and accepted by the seller on September 14, 1990. Under its terms, the second contract was to close on September 25, 1990. The closing was later moved up to September 19, 1990. During a telephone conversation with Lundberg between September 6 and 19, 1990, Bagnell mentioned the Woods deposit and told Lundberg that, since the second tranaction followed so close on the failure of the first to close, and the closing of the second also was to happen very quickly, Bagnell would settle up with Lundberg on both transactions after the closing of the second. It is not clear whether Bagnell made it clear, or that Lundberg understood Bagnell to mean, that Bagnell was expecting to be paid the Woods deposit as a forfeiture. Bagnell testified that he did make it clear that he wanted the forfeited money. Lundberg testified that she did not recall discussing the matter of the deposit with Bagnell at all. The closing of the second contract took place as rescheduled on September 19, 1990. However, no arrangements were made to disburse the $500 Woods earnest money deposit from the Respondent's escrow account. At some point, apparently between September 19 and October 22, 1990, Woods telephoned Lundberg to briefly discuss the matter. According to their testimony, their recollections of the conversation differ markedly. Lundberg recalls that Woods apologized for his inability to close the transaction. Lundberg recalls assuring him not to worry, that it was no problem since the second transaction was signed and closed so quickly. Lundberg recalled thinking that the conversation seemed odd and wondering why Woods had telephoned. Woods, on the other hand, recalls that he placed the call for the purpose of inquiring whether the Bagnells were going to claim his $500 earnest money deposit. He testified that he could not recall the exact words Lundberg used, but he understood Lundberg to tell him that the Bagnells were not claiming the money, since the second transaction was signed and closed so quickly, and that there was "no problem, the money is yours." He interpreted this to mean that Lundberg was authorizing the disbursement of the $500 to him from escrow. On cross-examination by the Respondent, Woods testified that Lundberg told him she had the Bagnells' authorization to release the escrow, but it is doubtful that she used those words. Although the evidence is not clear, and assuming that neither party to the conversation falsely testified, it is likely that Woods was not completely forthright with Lundberg, did not clearly ask to have the $500 disbursed to him from escrow, and was too easily satisfied with what he interpreted as the response for which he was hoping. On the other hand, it also is likely that Lundberg carelessly made comments that could have been susceptible of being interpreted as an authorization to disburse the escrow money. Under the circumstances of what she thought was an "odd" conversation, it would have been wiser for her to clearly state to Woods that she had no authorization from the Bagnells to have the escrow money disbursed to Woods. On or about October 22, 1990, Woods told the Respondent that Lundberg, on behalf of the Bagnells, had authorized the Respondent to disburse Woods's $500 earnest money deposit to Woods. The Respondent drew a check on the escrow account in the amount of $500 and paid it to Woods, who negotiated it. Based on their good working relationship, the Respondent trusted Woods and, based on Woods's representation, believed that Lundsberg, on behalf of the Bagnells, had authorized release of the escrow to Woods. But even the Respondent conceded that it may not have been wise to do so in view of Woods's interest in the money. It is found that, under the circumstances, it was culpable negligence and a breach of trust the Bagnells had placed in the Respondent for the Respondent to release the escrow to Woods, notwithstanding the Respondent's good working relationship with Woods. At some point in time, probably in either late October, or on November 1 or 2, 1990, Louis Bagnell telephoned Link Realty to ask for the earnest money deposit and spoke to either Lundberg or Shirley Link. Link telephoned the Respondent's office and spoke to a male whom she could not positively identify by voice. She thinks it was Woods. She testified that she asked the man if the Woods escrow deposit already had been released. (It is unclear why she should have suspected that it had been.) She also advised him of Bagnell's request. She was told that the Respondent would get back with her after they looked into it. Link also advised Bagnell to make a written demand for forfeiture of the money under the terms of the Woods contract. It is not clear whether this advice was given before or after she telephoned the Respondent's office. On November 2, 1990, Louis Bagnell faxed Link Realty his written demand. Link testified that, when she received the Bagnell demand, she talked to Lundberg about it and asked whether Lundberg "inadvertently stated anything about the escrow." (It is curious that she would have asked such a question before the Respondent got back with her.) On November 5 or 6, 1990, Link received from the Respondent's office a faxed letter written and signed by Woods, indicating that the money was no longer in escrow, having been disbursed to Woods on or about October 22, 1990, upon the authorization of Lundberg to Woods. (It could have been at this point that Link spoke to Lundberg to ask if she had "inadvertently stated anything about the escrow." Cf. Finding 16, above.) On November 6, 1990, Link faxed to the Respondent a letter stating that Lundberg was not a broker and had no control over the escrow and stating that the only people who can release an escrow deposit are the "Seller, Buyer, or Realtors, all with the signed release of escrow (not the word of anyone)." The faxed letter concluded: "As you are aware the Seller is making a formal request on this deposit and it is my duty at this time to send this to FREC [the Florida Real Estate Commission]." Upon receipt of the Links fax, and further discussion with Woods, the Respondent was unsure how to proceed. In part to test Woods's motives, the Respondent decided to ask Woods to return the $500, reasoning that if Woods had lied to the Respondent in order to get the money, he probably was in financial need of it, and would be unwilling or unable to return it. Woods passed this test, willingly returning the $500 to the Respondent by check dated November 9, 1990. The memorandum on the check indicated "escrow replacement." At the same time, Woods continued to maintain that, in his telephone conversation with Lundberg, she had authorized the release of the escrow. The Respondent was concerned that, by redepositing the $500 into his escrow account, he would be making an admission against interest that the Respondent wrongfully had released it to Woods on October 22, 1990. The Respondent telephoned Randy Schwartz, a Florida licensed attorney with the Florida Board of Realtors, to discuss the question. Schwartz was not available, and the Respondent was referred to a woman named Grace Guardiz (phonetic), who the Respondent was given to understand also was an attorney. The Respondent did not retain the individual for the purpose of giving him legal advice or a legal opinion. It is not clear precisely what the Respondent asked or what the person told him. The Respondent testified that they discussed the subject in general terms and that the woman essentially agreed with the Respondent that he was in a "catch 22": if he did not deposit the money in his escrow account, he would be susceptible to the charge of not maintaining the money in escrow; if he did deposit the money in his escrow account, he would be susceptible to the charge of having wrongfully released it to Woods on October 22, 1990. With Woods's agreement, to avoid making an admission against interest that the Respondent wrongfully had released the money to Woods on October 22, 1990, the Respondent decided to deposit the money in his operating account, where it has remained to this day. The Respondent's position is that the money rightfully belongs to Woods. Woods testified that he understood the matter had been referred to the Florida Real Estate Commission (FREC) as an escrow dispute for resolution through issuance of an escrow disbursement order by FREC. He recalled being in the Respondent's office when the Respondent telephoned FREC about this. But the matter never was referred to FREC for an escrow disbursement order. Perhaps, Woods was recalling the concluding statement in Links' November 6, 1990, faxed letter. See Finding 17, above. Eventually, Louis Bagnell, in his mother's behalf, sued the Respondent in the Florida circuit court in Hillsborough County for recovery of the $500. Meanwhile, Louis Bagnell moved his residence and place of employment from Orlando to Pensacola. After the Respondent filed his answer in court, the Bagnells dismissed the suit without prejudice. During a routine August, 1990, audit that was completed before the Bagnell-Woods matter was brought to the Department's attention, it was discovered that the Respondent routinely maintains $141 of his own money in his escrow account. His purpose is twofold: first, the odd sum of $141 in the account alerts him and reminds him that it is his escrow account (to the Respondent, "141" means "one for one"); second, the odd sum of $141 added to the account helps the Respondent notice whether he wrongfully has been charged a service fee by the bank. The auditor accepted this explanation and did not cite the Respondent for an "overage" in the account. However, the auditor noted that the Respondent was not signing monthly reconciliation statements for the account, as required, and admonished him to do so. Had it not been for the Bagnell-Woods "escrow dispute," no further action would have been taken against the Respondent as a result of the August, 1990, audit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order: (1) reprimanding the Respondent for his violations of Sections 475.25(1)(b), (d)1., (e) (by violating F.A.C. Rule 21V-14.012(2)), and (k), Fla. Stat. (1991); (2) fining him $1,500; (3) requiring him to immediately place the $500 Woods re- deposit in his trust account and, within 30 days of entry of the final order, exercise one of the "escape procedures" set out in Section 475.25(1)(d)1.; and (4) requiring him to successfully complete 60 hours of post-licensure education for brokers, including a 30-hour broker management course, and provide evidence of completion to the Department within one year of entry of the final order. RECOMMENDED this 16th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 16th day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3746 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Department's proposed findings of fact (the Respondent not having filed any): 1.-22. Accepted and incorporated to the extent not subordinate or unnecessary. 23. Rejected as not proven as to Woods. They had a conversation which Woods, at least, thought was about the deposit. 24.-26. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that it was on November 3; otherwise, accepted and incorporated. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. 30.-33. Accepted and incorporated to the extent not subordinate or unnecessary. 34. Rejected as not proven that it was to "'prove' that it was not an escrow deposit." 35.-37. Accepted but subordinate and unnecessary. 38. Rejected as not proven. 39.-42. Accepted and incorporated to the extent not subordinate or unnecessary. 43. Rejected as not proven. 44.-47. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Gary W. Palmer 5225-A Ehrlich Road Tampa, Florida 33624 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the allegations in issue, the Respondent was licensed as a real estate broker in Florida. However, since April 28, 1989, his broker's license has been nonactive. The Petitioner, Division of Real Estate, is the state agency responsible for the policing of and administration of rules governing the real estate profession in Florida. In May, 1987, Mary Louise Hockman and her husband, Elden D. Hockman, now deceased, were interested in purchasing a flea market somewhere in Florida. A requirement was that it have additional acreage on which a recreational vehicle park could be established. At just about that time, Rickey L. Reynolds, a family friend, told them of the Cypress Hut, a Florida corporation, which owned and operated a flea market near Okeechobee, Florida. The property in question was sufficiently large to accommodate a recreational vehicle park. The Hockmans went to look at the property in question and, satisfied with what they saw, made an offer to buy it through the Respondent who was the agent for the owner, Mr. James Evans. This offer was memorialized in a purchase and sale agreement executed on May 23, 1987, signed by Mrs. Hockman and Mr. Reynolds, her partner, as buyers, and the Cypress Hut Flea Market, through James H. Evans, as seller. The purchase price was $550,000.00. Ten Thousand dollars was paid by Mrs. Hockman to the Respondent as an initial down payment. An additional $117,500.00 was to be paid at time of closing, and the remaining $422,500.00 was to be payable on a semiannual basis at 8% interest. The agreement also called for a commission of $27,500.00 to be paid to the Respondent, secured by a note between the buyer and the broker. Closing was to take place at a reasonable time after all contingencies, outlined separately, were fulfilled. These contingencies were memorialized in an addendum to the purchase and sale agreement signed by both the buyer and the seller on May 29, 1987. They included: Buyer's inspection and approval of all books and records of the corporation, Approval of a 55 unit recreational vehicle camp ground by county and city zoning officials, including environmental approval, and Seller's providing a survey proving that 17.2 acres was contained in the total real estate parcel to be conveyed. The addendum also provided that in the event these contingencies could not be satisfied to the buyer's "full satisfaction", all earnest money would be returned immediately to the buyer upon written demand. To satisfy these requirements, the seller provided the Hockmans with several sheets of paper containing yearly figures for the operation of the flea market. These figures did not constitute the full books and records of the corporation relating to the flea market operation and were not satisfactory to the Hockmans. The Hockmans were also provided with several 1983 applications submitted by Cypress Hut corporation to the county zoning officials, which were subsequently approved, for the establishment of a mobile home park on the property. A mobile home park approval is sufficient approval for the establishment and operation of a recreational vehicle park. However, the Hockmans were never provided with a survey clearly defining the extent of the real property in question. On September 21, 1987, Mrs. Hockman wrote to the Respondent indicating that if the formal contract for the sale was not signed by October 1, 1987, they would consider their offer withdrawn and demand a return of the earnest money paid, plus interest. This letter, sent to the Respondent by certified mail, was received by Respondent's wife who signed for it. Respondent claims, however, that he never received it. He and his wife were separated at the time, he was not living with her, and she neither gave it to him nor told him it had arrived. Respondent's wife was not called to verify his claim, but Petitioner was unable to present any evidence to disprove it, and it is accepted as fact. Nonetheless, on or about September 27, 1987, Mrs. Hockman personally spoke with the Respondent at the Cypress Hut Flea Market and directly reiterated to him the substance and terms of that letter she had sent him. In response, Respondent indicated he would speak to Mr. Evans about the Hockmans' demand. Shortly thereafter, Respondent wrote to Mr. Hockman, referring to an alleged statement by Hockman's attorney that all contingencies had been satisfied, and acknowledging that Cypress Hut was ready and willing to close as of October 1, 1987. No independent evidence of such an opinion by Hockman's attorney was forthcoming and that claim is found to be without merit. Enclosed with Respondent's letter, was a letter he had received from Evans making a demand upon him for the disbursement of the earnest money, based on Hockman's indication of no further interest in going through with the purchase. Notwithstanding this direct notice, neither Mr. Evans nor the Respondent contacted the Hockmans prior to October 1, 1987, and after that date, the Hockmans made several telephone calls to the Respondent which went unanswered. Finally, because they had made plans to go on vacation, they departed the area and were assured by Mr. Reynolds, their partner in the proposed purchase, that he would contact Respondent in their absence. Respondent denies he did and there is, again, no evidence to the contrary. When the Hockmans returned to the area, they contacted Respondent and advised him again that they wanted their earnest money refunded as they were considering the agreement void. Respondent did not repay the money in question. Instead, on October 13, 1987, he withdrew the $10,000.00 paid to him by the Hockmans, which he had placed in his escrow account pending closing, and on October 15, 1987, purchased a cashier's check in the amount of $5,000.00 payable to James H. Evans. This represented one-half of the earnest money paid by the Hockmans. He converted the other $5,000.00 to his own use. Respondent justifies doing this on the basis of a previous phone call he claims to have made to the Division of Real Estate in which he outlined the circumstances and sought the Division's guidance. He states he was advised by a gentleman, further unidentified, who indicated he had two options: to forward the money to the Division for agency arbitration of the dispute between the Hockmans and Mr. Evans, or to adhere to the terms of the agreement, consider the deposit forfeited, disburse the funds to the seller and himself, and rely upon the courts to determine, upon claim filed by the buyer, who was entitled to the funds. He chose the latter though it is found to be unlikely he got such advice. Suit was thereafter filed by Mrs. Hockman against not only the Respondent but also the Cypress Hut. Respondent chose not to retain counsel but to rely on counsel for his co-defendant to represent him. Prior to hearing, however, the claim against Cypress Hut was abandoned, its counsel released, and Respondent was left as sole defendant. He still did not seek a delay to retain counsel and at the very brief hearing held before the Circuit Judge in December, 1988, a Judgement was entered against him in favor of Mrs. Hockman for the full $10,000.00, plus interest and costs. With knowledge of the terms of the Judgement, Respondent still has not satisfied it through reimbursement of Mrs. Hockman, claiming he has no assets with which to do so. Discovery in aid of execution revealed he had no assets, either realty or personalty, upon which to execute since all his assets were transferred to his wife prior to suit. When Mrs. Hockman filed her initial complaint with the Division, an investigation was conducted by Mr. Maye who recommended that action be taken against Respondent based on evidence of violations. However, it would appear that a contrary position was taken by the Division which advised Respondent, in writing, that a determination of no probable cause had been made. However, after the judgement was entered against Respondent, the Division reversed itself and filed the instant Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, GEORGE RICHARD MCKOWEN's license as a real estate broker in Florida be suspended for three years, that he pay an administrative fine of $3,000.00, and that he be reprimanded. RECOMMENDED this 20th day of March, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 20th day of March, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire DPR-Division of Real Estate 400 W. Robinson Street P. O. Box 1900 Orlando, Florida 32802 George Richard McKowen 3503 14th Street, West, #76 Bradenton, Florida 34205 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue Is Skinner Nurseries, Inc. (Skinner), entitled to collect $28,097.10 on account, as a producer of agricultural products allegedly delivered to A & R Landscaping & Lighting, Inc. (A & R), a dealer in agricultural products?
Findings Of Fact From the pleadings it is found that Skinner is a producer of agricultural products and A & R is a dealer in agricultural products in Florida. Old Republic is the surety for the bond to secure A & R's performance consistent with its activities as a dealer. §§ 604.15 through 604.34 Fla. Stat. (2002). Skinner has a business address of 2970 Hartley Road, Jacksonville, Florida 32257. The A & R business address is 739 Long Lake Drive, Oviedo, Florida 32765. The Old Republic business address is 445 South Moorland Road, Brookfield, Wisconsin 53005. On July 31, 2001, A & R applied for a line of credit with Skinner for the provision of plants, shrubs, and trees in their respective capacities as a dealer in agricultural products and a producer of agricultural products. That application was granted and the entities commenced business. This case involves claims by Skinner for agricultural products delivered to A & R that have not been paid for. Within Composite Exhibit 1 by Skinner is a statement of the amount owed by A & R on account no. 3008, a number assigned by Skinner. The account statement depicts transaction dates, invoice numbers, and job descriptions in relation to the charges. In addition, Composite Exhibit 1 by Skinner contains the various invoices in support of the claim. The statement date for account no. 3008 was prepared on July 8, 2003, to support the complaint in this case. But it was, and continues to be, an accurate portrayal of the amount owed by A & R to Skinner for agricultural products provided. The matters set forth in the July 8, 2003, statement of account no. 3008 that accompanies the complaint were in relevant part the same as those in a billing statement that had been mailed to A & R on July 2, 2003, that A & R has not paid. The statement of account no. 3008 for purposes of the complaint excludes certain items from the claim. Among the exclusions are charges that date from December 2002 through January 9, 2003. Those charges were not promoted in the complaint based upon their untimeliness. The dates about which claims are made end on February 26, 2003. In addition, certain charges for what are described as hard goods, mulch, and freight were not claimed. Reference to hard goods refers to items to stake trees sold, also referred to as tree guy kits. Finally, no interest is claimed on the account. Within the July 8, 2003, statement of account no. 3008 an asterisk by invoice numbers indicates that the charges were solely for the provision of mulch. Therefore, these invoices are not included in Skinner's Composite Exhibit numbered 1, as is the case where invoices are associated with the period before January 13, 2003, and after February 26, 2003. At hearing Skinner established without contradiction that, with the exclusions noted, it supplied the plants, shrubs, and trees to A & R and has not been paid $28,097.10 on account no. 3008.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that A & R owes Skinner $28,097.10. DONE AND ENTERED this 18th day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 18th day of December, 2003. COPIES FURNISHED: Christopher Diaz, C.P.A. Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Michael A. Jankowski Old Republic Surety Company Post Office Box 1635 Milwaukee, Wisconsin 53201 Rita J. Robinson, President A & R Landscaping & Lighting, Inc. 739 Long Lake Drive Oviedo, Florida 32765
The Issue Does Respondent Horizon Produce Sales, Inc. (Horizon) owe Petitioner Richard Sapp, d/b/a Sapp Farms (Sapp Farms) $5,484.50 as alleged in the Amended Complaint filed herein by Sapp Farms?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At times pertinent to this proceeding, Sapp Farms was a "producer" as defined in Section 604.15(5), Florida Statutes, of agricultural products in the State of Florida. Tomatoes come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. Horizon is a Florida Corporation, owned entirely by Donald E. Hinton, and located in Sydney, Florida. At times pertinent to this proceeding, Horizon was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Horizon was issued License Number 10584, supported by Bond Number 58 84 19 in the amount of $16,000 written by Gulf Life Insurance Company, as Surety, with an inception date of September 26, 1998, and an expiration date of September 25, 1999. By Invoice numbered 1262, Sapp Farms’ Exhibit numbered 6, dated June 18, 1999, with a shipping date of June 16, 1999, Sapp Farms sold and delivered to Horizon several varieties and sizes of tomatoes in 25-pound cartons at an agreed-upon price of $9.00 per 25-pound carton for 267 cartons and $8.00 per 25-pound carton for 104 cartons for a total amount of $3,235.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. By check dated July 3, 1999, Horizon paid Sapp Farms $1,415.00 on these tomatoes leaving a balance owing of $1,820.00. By Invoice numbered 1263, Sapp Farms’ Exhibit numbered 10, dated June 22, 1999, with a shipping date of June 22, 1999, Sapp Farms sold and delivered to Horizon 122 25-pound cartons of extra large pink tomatoes at $8.00 per 25-pound carton, 51 25- pound cartons of large pink tomatoes at $8.00 per 25-pound carton, and 296 25-pound cartons of 125-150 count Roma tomatoes at $8.00 per 25-pound carton for a total invoiced price of $3,752.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for these tomatoes. By Invoice numbered 1272, Sapp Farms’ Exhibit numbered 15, dated June 24, 1999, with a shipping date of June 23, 1999, Sapp Farms sold and delivered to Horizon 70 25-pound cartons of extra large tomatoes at an agreed upon price of $8.50 per 25- pound carton for a total price of $595.00. Horizon was given the opportunity to inspect the tomatoes before or during loading and to reject those tomatoes not meeting the standard or condition agreed upon. Horizon furnished the truck driver and truck upon which the tomatoes were loaded. Sapp Farms has not been paid for those tomatoes. Sapp Farms agrees that it owes Horizon $682.50 in freight charges. See Sapp Farms’ Exhibit numbered 12 and the Amended Complaint filed by Sapp Farms. Horizon contends that it did not agree to purchase the tomatoes at an agreed upon price per 25-pound carton but agreed to "work" the tomatoes with Horizon’s customers and to pay Sapp Farms based on the price received for the tomatoes from its customers less any freight charges, etc. Additionally, Horizon contends that it made contact or attempted to make contact with Sapp Farms regarding each of the loads and was advised, except possibly on one load, by either Mark Davis or Richard Sapp that a federal inspection was not necessary and to "work" the tomatoes as best Horizon could. The more credible evidence is that neither Mark Davis nor Richard Sapp was timely advised concerning the alleged condition of the tomatoes. Furthermore, there is insufficient evidence to show that the condition of the tomatoes when delivered to Horizon’s customers had deteriorated to a point that resulted in rejection by Horizon’s customers. The more credible evidence shows that neither Mark Davis nor Richard Sapp advised Horizon that there was no need for a federal inspection or that Horizon could "work" the tomatoes with Horizon’s customers. The more credible evidence is that Horizon agreed to purchase Sapp Farms’ tomatoes at an agreed-upon price and that upon those tomatoes being loaded on Horizon’s truck, Horizon was responsible to Sapp Farms for the agreed-upon price. Sapp Farms timely filed its Amended Complaint in accordance with Section 604.21(1), Florida Statutes, and Horizon owes Sapp Farms for tomatoes purchased from Sapp Farms on Invoice numbered 1262, 1263, and 1272 less the partial payment on Invoice numbered 1262 of $1,415 and freight charges of $682.50 for total amount due of $5,484.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order granting Sapp Farms relief by ordering Horizon Produce Sales, Inc. to pay Sapp Farms the sum of $5,484.50. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2000. COPIES FURNISHED: Honorable Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Sapp Sapp Farms 4720 Gallagher Road Plant City, Florida 33565 Donald E. Hinton, Qualified Representative President, Horizon Produce Sales, Inc. 1839 Dover Road, North Post Office Box 70 Sydney, Florida 33587 Michael E. Riley, Esquire Rumberger, Kirk and Caldwell A Professional Association Post Office Box 1050 Tallahassee, Florida 32302 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue This case concerns the action brought by the Petitioner against the Respondent under the alleged authority found in Section 120.56, Florida Statutes, which attacks certain memoranda received by the Petitioner on July 24, 1980, directed to him by officials within the Respondent agency, the text of which purportedly caused the Petitioner's termination or dismissal from employment for reason that the Petitioner had failed to gain the permission of the Respondent to run for public office in the State of Florida. The proceeding is promoted as a rules challenge.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the Petitioner notified the Respondent of his intention to run for a School Board Seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Petitioner's Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the Petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the Petitioner that he would not he allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the Petitioner determined to offer his candidacy without the permission of his agency head and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by Petitioner's Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the Petitioner to inquire why the Petitioner had offered his candidacy without permission of the agency. The Petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the Petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as petitioner's Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Petitioner's Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the school Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the Petitioner were ones of resignation from his position as A Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the school Board of Wakulla County and also the concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the Petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that the had not. Subsequent to that latter conversation with Wood, the Petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Petitioner's Exhibit No. 5. This letter informed the Petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1990, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. After August 15, 1980, the Petitioner was removed as a permanent party Career Service employee with the Respondent. Following his dismissal, the Petitioner through his counsel in the subject case has attacked the Joint Exhibit Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. The Petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary Forest Ranger at this time.
The Issue Whether Respondent, Greenway Nursery, Inc. (“Greenway”), is liable to Petitioner, Huntsman Tree Supplier, Inc. (“Huntsman”), for the purchase of landscaping trees, and, if so, in what amount.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Huntsman is a Florida corporation for profit, located in Lake City, and engaged in the business of commercial tree farming. Its owners are James and Michelle Huntsman. Mr. Huntsman is the president of the company and Ms. Huntsman is the secretary. Greenway is a Florida corporation for profit, located in Morriston, and engaged in the business of commercial nursery and landscaping. Its owner and president is Brian D. Love. At issue in this proceeding are two deliveries of trees from Huntsman to Greenway, one on March 12, 2015, and one on June 23, 2015. The invoice for the March 12 delivery indicates that it was billed to Greenway. It is for 12 East Palatka holly trees, 65 gallons each. The trees are billed at the rate of $240 each, for a total bill of $2,880. The invoice indicates that Greenway took delivery of the trees by customer pick-up. The invoice for the June 23 delivery also states that it was billed to Greenway. The invoice includes one ligustrum, eight feet in height, for $200; one 2.5-inch DBH1/ slash pine for $130; two 4-inch live oaks with a height of 14 to 16 feet for $250 each; and one cypress for $240. The total amount of the invoice is $1,070. Again, the invoice indicates that Greenway took delivery by picking up the trees. All of the trees in both invoices were destined for a landscaping project at Adena Golf and Country Club in Ocala (“Adena”). Both parties were involved in planting trees in different areas of the Adena property. The parties’ course of dealing until June 2015, was not completely explained at the hearing. It was clear that Huntsman would directly bill Greenway for the trees and that Greenway would take delivery of the trees by pick-up. It was unclear whether Huntsman expected to receive payment directly from Adena or whether Greenway would pay Huntsman for the trees from payments Greenway received from Adena. In any event, Greenway accepted the billings and took delivery of the trees in each instance, thus accepting ultimate responsibility for payment to Huntsman. In its answer to the Complaint, and again at the final hearing, Greenway admitted liability for the $2,880 stated in the March 12 invoice. Mr. Love agreed to pay Huntsman that amount within 15 days of entry of the final order in this case. However, Greenway denied liability for the $1,070 stated in the June 23 invoice. Mr. Love stated that his company was not liable for these trees because they were not part of his project with Adena. He stated that he installed these trees to replace trees on the Adena property that had died, but that the dead trees had not been the responsibility of his company. Ms. Huntsman denied that the dead trees had been installed in the area of the Adena property where her company was working. She testified that Adena’s representative told her that she should seek payment from Greenway because the June 23 tree delivery constituted “warranty work.” Greenway had planted trees on the Adena property that had died, and Adena considered Greenway the warrantor of those trees and therefore liable for their replacement. Based on all of the testimony, it appears that Huntsman found itself in the middle of a dispute between Greenway and Adena as to whether Greenway had warranted the trees that died, and became aware of the dispute only after it had billed and delivered the trees to Greenway in accordance with the parties usual course of dealing. The evidence was insufficient to establish that Huntsman had any responsibility for, or prior knowledge of, the dead trees. It will be left to one or the other of these parties to take up the issue of payment with Adena. Fundamental fairness dictates that this burden should fall to Greenway. Greenway had the warranty dispute with Adena that caused this controversy. Greenway accepted the bill of lading and the invoice for the June 23 shipment, and took delivery of the trees in accordance with the parties usual course of business. As the innocent supplier of the trees, Huntsman should be made whole.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Huntsman Tree Supplier, Inc., against Greenway Nursery, Inc., in the amount of $4,000. DONE AND ENTERED this 12th day of April, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2016.
The Issue Whether the Respondent Five Brothers Produce owes the Petitioner $16,493.00 for green beans that Five Brothers Produce accepted, sold, and shipped to the buyer as the Petitioner’s agent/broker.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Five Brothers Produce accepts agricultural products from growers for sale or consignment and acts as an agent/broker for the growers. Currently, Five Brothers Produce represents 25 to 30 growers as agent/broker. Five Brothers Produce has a surety bond issued by Old Republic Surety Company to secure payment of sums owed to agricultural producers. Veggie Growers grows agricultural produce in fields located in Homestead, Florida. On or about April 28, 2009, a buyer employed by Five Brothers Produce examined Veggie Growers' crop of green beans in the field. He suggested that Veggie Growers pick the beans and deliver them to Five Brothers Produce for sale. On April 28, 2009, Veggie Growers delivered 796 boxes of hand-picked green beans to Five Brothers Produce. The beans were inspected and accepted for sale by an employee of Five Brothers Produce. The Marketing Agreement and Statement included on the Grower Receipt for the produce given to Veggie Growers by Five Brothers Produce provided in relevant part: The grower gives Five Brothers Produce the right to sell or consign to the general trade. No guarantees as to sales price are made and only the amounts actually received by Five Brothers Produce, less selling charges, cooler charges, and any other charges will be paid to the grower. Final settlement will be made within a reasonable length of time and may be held until payment is received from the purchaser. On April 29, 2009, Veggie Growers delivered 514 boxes of hand-picked green beans to Five Brothers Produce. The beans were inspected and accepted for sale by an employee of Five Brothers Produce. The Marketing Agreement and Statement included on the Grower Receipt for the produce delivered by Five Brothers Produce to Veggie Growers on April 29, 2010, included the same provision as quoted above. Veggie Growers received a picking advance of $3980.00 on the beans from Five Brothers Produce on April 28, 2010, and it delivered a total of 1310 boxes of green beans to Five Brothers Produce on April 28 and 29, 2009. The beans picked by Veggie Growers on April 28 and 29, 2009, were in good condition when they were picked, packed, and delivered to Five Brothers Produce. On April 29, 2009, Five Brothers Produce sold 50 crates of Veggie Growers’ beans to J. H. Harvey for $15.00 per crate. On April 30, 2009, Five Brothers Produce shipped the remaining 1260 crates of green beans received from Veggie Growers to Chenail Fruits et Legumes (“Chenail”) in Montreal, Quebec, Canada. In this shipment, Five Brothers Produce also included 84 crates of beans obtained from growers other than Veggie Growers, for a total of 1344 crates of green beans. The invoice issued by Five Brothers Produce reflecting the sale of 1344 boxes of green beans to Chenail identified the price of the beans as $11.50 per box, together with a Ryan recorder, which is used to measure the temperatures during transit, and pallets furnished by Five Brothers Produce, for a total due from Chenail of $16,671.50. Chenail received the shipment of beans at 11:30 on May 3, 2009, and requested an inspection at 5:32 on May 4, 2009, stating on the inspection request that it was “protesting the above described load due to poor condition on arrival.” Pursuant to the agreement between Chenail and Five Brothers Produce, a private inspection report was ordered, which was to include digital temperatures, “as conclusive evidence of the condition of this product noted upon arrival at destination.” The Certificate of Inspection indicated that the inspection report was completed at 7:00 on May 4, 2009, and that no decay was in evidence; that an average of 15 percent of the beans exhibited “dark green pepper spot discoloration ((resembling bruising) affecting materially the appearance),” with a range of six percent to 22 percent; that an average of two percent of the beans exhibited russeting; an average of seven percent of the beans were flabby, with a range of three percent to 12 percent; and that an average of four percent of the beans exhibited wind scars, with a range of one percent to 10 percent. The report also reflected that the bean crates were “in good order properly packed. Finally, the pulp temperature of the beans was noted in the report at 40 degrees Fahrenheit; the warehouse temperature was noted as 40 degrees; and the outside temperature was noted as 63 degrees. No temperature was noted for the vehicle in which the beans had been shipped, presumably because the beans had been off-loaded. A Commodity References form for beans was attached to the inspection report. It included information that the United States Department of Agriculture recommended storing snap beans at 40 to 45 degrees Fahrenheit; that the “standard grade tolerances” for defects in U.S. No. 1 snap beans is 13 percent total, “including 5 % serious including 1 % soft decay.” The Commodity References form also included information that, for a “[m]aximum percentage for a 5 day normal transit,” the “Suitable Shipping Condition/F.O.B. Good Delivery Guideline” for snap beans is 18 percent total, “including 8 % serious including 3 % decay.” The condition of the beans shipped by Five Brothers Produce exceeded the standard tolerances. The Commodity References form also indicated that, if the beans were held at a temperature cooler than 40 degrees Fahrenheit, there would have been evidence of decay in the form of surface pitting and russeting, with rusty brown specks, and the beans would “then become spotted and sticky when removed to warmer temperatures.” There was no indication on the Certificate of Inspection that the beans exhibited any of these features except that an average of two percent of the beans were russeted. Pursuant to these standards, Chenail properly considered the 1344 crates of beans shipped from Five Brothers Produce to be defective. Based on the results of the inspection report of the 1344 crates of beans, Chenail sent Five Brothers Produce a statement reflecting that it would remit to Five Brothers Produce a total of $1,275.70 U.S. The statement showed that Chenail paid nothing for 374 crates of beans; $6.00 Canadian per crate for 112 crates; $8.00 Canadian per crate for 336 crates; and $9.00 Canadian per crate for 522 crates. Based on these figures, Chenail calculated that the total gross amount due to be paid to Five Brothers Produce for the 1344 crates of beans was $6,446.40 U.S. Chenail then deducted $5,170.70 U.S. for inspection, pallets, recorder, transport, and warehousing costs and indicated it would remit to Five Brothers Produce a net total of $1275.70, or an average of $0.95 per crate of beans. Five Brothers Produce subsequently sent an invoice to Chenail for $1,491.20 U.S., or a average of $1.11 per crate, after deducting the charges Chenail had included for the pallets and the recorder, which had been furnished by Five Brothers Produce. Five Brothers Produce sent Veggie Growers a Grower Lot Status form showing the history of the 1310 crates of hand-picked “bush” beans it received from Veggie Growers on April 28 and 29, 2009. The form reflects the sale of 50 crates of beans to J. H. Harvey on April 29, 2009, at $15.00 per crate. It also reflects a price $0.95 per crate for the 1260 crates of Veggie Growers snap beans included in the shipment to Chenail, for a total sale amount of $1,458.09. Five Brothers Produce deducted from this amount a $50.00 loading fee and a $30.00 selling charge for the beans sold to J. H. Harvey and the $3,980.00 advance paid to Veggie Growers for the beans. Five Brothers Produce did not take a loading charge or a selling charge for the 1344 crates of beans sent to Chenail. According to the calculations of Five Brothers Produce, Veggie Growers had a net return of -$2,601.91 on the 1310 crates of beans. The market dictates how quickly Five Brothers Produce can sell the produce it accepts as agent/broker. In late April, snap beans generally do not sell quickly because there are a lot of beans available. Beans should be sold and shipped as soon as possible after picking. Snap beans will usually last only seven days from the date of picking. It normally takes two or three days for a shipment of produce to travel from Five Brothers Produce to Canada. Sometimes beans that are in good condition at the time they are shipped are not good enough to survive the trip to Canada. Summary The evidence presented by Veggie Growers is not sufficient to establish that it is entitled to any additional payment for the beans it delivered to Five Brothers Produce on April 28 and 29, 2009. Veggie Growers established that it picked the beans and delivered them to Five Brothers Produce at the suggestion of a representative of Five Brothers Produce, who inspected the beans in the field and found them acceptable, and that the beans were acceptable when delivered to Five Brothers Produce. Indeed, on April 29, 2009, when the final 514 crates of beans were delivered to Five Brothers Produce, Five Brothers Produce sold 50 crates for $15.00 per crate, establishing that the beans were of good quality when delivered. Nonetheless, there was no evidence presented to suggest that Five Brothers Produce did not use its best efforts to locate a buyer for the remaining 1260 crates of beans within a reasonable time after the beans were delivered, nor was any evidence presented to suggest that Five Brothers Produce did not properly store, load, and ship the beans to Chenail. The beans were shipped from Five Brothers Produce on April 30, 2009; the inspection report shows that the beans were properly packed; and there is no indication that the beans had been stored at an improper temperature.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint of Veggie Growers, Inc., against Five Brothers Produce, Inc. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 29th day of July, 2010.
