Findings Of Fact The material facts alleged in the Petition are accepted as true for purposes of ruling on the Motion and are summarized here: The Department was directed by section 381.986 to authorize the establishment of five DOs statewide, one each in five different regions. The Department promulgated an application form, incorporated by reference in Florida Administrative Code Rule 64-4.002, to be used by applicants seeking approval as one of the five regional DOs. The Department conducted its application review process pursuant to rule 64-4.002(5), which provides for three reviewers to independently review and score each application using a scorecard form that is incorporated by reference. Pursuant to rule 64-4.002(5)(b), “[s]corecards from each reviewer will be combined to generate an aggregate score for each application. The Applicant with the highest aggregate score in each dispensing region shall be selected as the region’s Dispensing Organization.” McCrory’s timely submitted an application to become the DO in the central Florida region, as did a number of others, including Knox. According to McCrory’s, the scorecards completed by the Department’s reviewers for the central region applications reveal “clearly erroneously assigned scores, and scores that were assigned in an arbitrary and capricious manner.” (Petition at 4). According to McCrory’s, “[c]orrection of the clearly erroneous scoring errors would result in McCrory’s being the highest scoring Applicant in the Central Region, and [the Department] would have been required to select McCrory’s as the DO for the Central Region.” (Petition at 4). McCrory’s seeks a formal evidentiary hearing to prove its allegations of scoring errors because by doing so, McCrory’s contends it would thereby be entitled to be a central region DO by legislative decree. The Petition is predicated on section 3, subsection (1) of the new law, which provides: Notwithstanding s. 381.986(5)(b), Florida Statutes, a dispensing organization that receives notice from the Department of Health that it is approved as a region’s dispensing organization, posts a $5 million performance bond in compliance with rule 64-4.002(5)(e), Florida Administrative Code, meets the requirements of and requests cultivation authorization pursuant to rule 64-4.005(2), Florida Administrative Code, and expends at least $100,000 to fulfill its legal obligations as a dispensing organization; or any applicant that received the highest aggregate score through the department’s evaluation process, notwithstanding any prior determination by the department that the applicant failed to meet the requirements of s. 381.986, Florida Statutes, must be granted cultivation authorization by the department and is approved to operate as a dispensing organization for the full term of its original approval and all subsequent renewals pursuant to s. 381.986, Florida Statutes. Any applicant that qualifies under this subsection which has not previously been approved as a dispensing organization by the department must be given approval as a dispensing organization by the department within 10 days after the effective date of this act, and within 10 days after receiving such approval must comply with the bond requirement in rule 64-4.002(5)(e), Florida Administrative Code, and must comply with all other applicable requirements of chapter 64- 4, Florida Administrative Code. (emphasis added). The Petition asserts that McCrory’s would, if allowed to prove its allegations of scoring errors, achieve the status described in the emphasized language following the semi-colon.1/ The language McCrory’s seeks to invoke identifies attributes of an applicant in a two-part description. The first part of the description is “any applicant that received the highest aggregate score through the department’s evaluation process.” The second part of the description is “[n]otwithstanding any prior determination by the department that the applicant failed to meet the requirements of s. 381.986, Florida Statutes.” McCrory’s has not alleged that it was an applicant that received the highest aggregate score through the Department’s evaluation process, nor has McCrory’s alleged that the Department previously determined that McCrory’s failed to meet the requirements of section 381.986, Florida Statutes. Instead, McCrory’s admits by its allegations that it was not the applicant that received the highest aggregate score among the central region DO applicants, through the Department’s evaluation process. McCrory’s instead alleges that its application did not receive the highest aggregate score because of scoring errors characterized as clearly erroneous or arbitrary and capricious. McCrory’s can only allege that correction of the scoring errors “would result in McCrory’s being the highest scoring Applicant in the central region.”2/ McCrory’s also cannot allege that it meets the second part of the two-part description after the semi-colon. McCrory’s acknowledges by its allegations that its application was denied because it did not receive the highest aggregate score in the central region, not because it did not satisfy one of the statutory requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Petition for Formal Administrative Proceedings filed by Petitioner McCrory’s Sunny Hill Nurseries, LLC, with prejudice. DONE AND ENTERED this 3rd day of June, 2016, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2016.
Findings Of Fact Petitioner, Monticello Nursery Company of Florida, Inc., is a corporation whose address is Post Office Box 190, Monticello, Florida. (Petitioner's Complaint) Respondent, Paul Pent, d/b/a Paul Pent Landscape Company, is located at 1660 Emerson Street, Jacksonville, Florida. At the time of the transactions involved, Respondent was licensed as a dealer in agricultural products under License No. 3531. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Corespondent, Transamerica Insurance Company as surety provided bond number 5182-39-34 for Respondent in the amount of $4,750. (Petitioner's Complaint, Order of Department of Agriculture dated November 15, 1985) Petitioner's complaint for $6,159.30 is based upon two invoices for nursery plants: Invoice 1060 in the amount of $2,612.80, and Invoice 1308 in the amount of $6,109.30. From the total of $8,722.10 is deducted "payments and credit" of $2,562.80. (Petitioner's Complaint) The figures on the complaint and the attached invoices accurately reflect the statement of account for the subject transactions. (Testimony of Sandy Mazza) Invoice No. 1060 is for several kinds of nursery plants and is dated 12/31/84. On the invoice the order date is 10/26/84 and the "ship date" is 12/07/84. Whether the sale occurred upon order, shipment or date of invoice is immaterial, as all three dates are more than nine months prior to the filing of the complaint on September 5, 1985. Invoice No. 1308 is for a quantity of crepe myrtle trees and is dated 1/31/85. The order date and "ship date" are both 1/28/85. One invoice supports, and the other conflicts with, the date of 12/31/84, stated on the face of the complaint as the "date of sale". The invoices are competent evidence as supported by the bookkeeper's testimony. The finding in the November 15, 1985 order of the Department of Agriculture and Consumer Services that the sale totaling $6,159.30 was made on September 5, 1985, conflicts with both the complaint and the invoices and is unsupported by any evidence in the record.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued requiring Respondent Paul Pent, pay Petitioner $3,546.50. The Final Order should specify that failure to comply will result in a requirement that Transamerica Insurance Company pay said sum to the Department of Agriculture and Consumer Services for distribution to Monticello Nursery. DONE and RECOMMENDED this 1st day of May, 1986, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1986. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 John C. Cooper, Esquire Douglas, Cooper & Coppins, P.A. 211 East Call Street Tallahassee, Florida 32302-1674 Mr. Paul Pent Pent Landscape Company 1660 Emerson Street Jacksonville, Florida 32207 Transamerica Insurance Company 1150 South Olive Street Los Angeles, California 90015 Joe W. Kight, Chief Division of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Ron Weaver, Esquire Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Room 513 Tallahassee, Florida 32301
