The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department) is a state agency charged with the duty and responsibility for regulating the pari-mutuel wagering industry in Florida and those licensed under Chapter 550, Florida Statutes. At all times material hereto, Respondent, Jack J. Garey, held pari-mutuel wagering license number 1470144-1081, was a licensed thoroughbred owner, and was a permitholder authorized to conduct horseracing at permitted facilities in the State of Florida. Calder Race Course (Calder) was, at all times material hereto, a permitholder authorized to conduct horseracing in the State of Florida. Incident to the operation of that business, Calder extended check cashing privileges to trainers, owners and other pari-mutuel wagering licensees. On or about November 3, 1997, Respondent endorsed and presented to Calder for payment two checks, each in the amount of $500.00, which were payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. Both checks, which Calder paid, were returned unpaid because the account was closed. On or about November 12, 1997, Respondent endorsed and presented to Calder for payment a check in the amount of $1,600.00 which as payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. The check, which Calder paid, was, as the previous check drawn on such account, returned unpaid because the account was closed. In late November 1997, Michael Abes, the vice president of finance at Calder, spoke with Respondent regarding the returned checks and demanded repayment. In turn, Respondent acknowledged the debt and promised to repay it; however, no payments were forthcoming. On or about December 27, 1997, Respondent endorsed and presented to Calder two more checks for payment. One check was in the amount of $2,000.00 and the other in the amount of $500.00, and each was payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. The checks, paid by Calder, were, as with the previous checks drawn on the same account, returned unpaid because the account was closed. Given the return of the previous checks and his discussion with Mr. Abes, it cannot be subject to serious dispute that Respondent knew when he presented the checks to Calder for payment, that the account on which the checks were drawn had been closed and that they would not be honored by the bank. Despite numerous demands, Respondent did not pay any portion of the outstanding obligation owed Calder until February 1998, when a payment of $300.00 was remitted. Subsequently, on June 5, 1998, the balance of the outstanding obligation due Calder was paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating the provisions of Subsection 550.105(6), Florida Statutes, as alleged in Count I of the Administrative Complaint and imposing, as a penalty for such violation, an administrative fine of $300.00, a 30-day suspension, and exclusion from all pari-mutuel facilities in the state for the period of suspension. DONE AND ENTERED this 9th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 9th day of March, 1999.
Findings Of Fact At all times material hereto, Respondent, Richard Tortora (Tortora), held pari-mutuel wagering occupational license number 0066650, as a thoroughbred trainer. Tortora has been licensed since 1979, and has not previously been the subject of a disciplinary proceeding. Tortora was a participating trainer during the 1956 thoroughbred meet at Calder Race Course, an association authorized to conduct thoroughbred racing in the State of Florida. On August 2, 1986, Tortora was the trainer of the horse "Chief Again," the winner of the fourth race at Calder Race Course that day. Immediately following the race, the Division, consistent with its standard practice, took a urine sample from "Chief Again" for analysis by the Division's laboratory. The parties have stipulated that the chain of custody of the urine sample was not breached, and that the urine sample was properly taken, packaged and delivered to the Division's laboratory for testing. The parties have further stipulated that a portion of the urine sample was delivered to Dr. Richard Sams, Equine Testing Laboratory, College of Veterinary Medicine, Ohio State University, Columbus, Ohio, for testing on behalf of Tortora, and that such sample was properly taken, packaged, and delivered. Upon analysis, the urin sample taken from "chief Again" proved positive for the presence of the drug butorphanol, a schedule 3 narcotic. Butorphanol is a potent analgesic, traditionally used to control the intestinal pain associated with equine colic. In therapeutic dosage, butorphanol renders the animal immobile, however, at low dosages it will act as a stimulant. In reaching the conclusion that "Chief Again" was shown to have raced with the narcotic butorphanol in his system, the evidence offered on behalf of Tortora, through Drs. Sams and Maylin, has not been overlooked. Such evidence failed, however to detract from the credible and compelling nature of the Division's proof. The Division's analysis was composed of sequential screening procedures designed to initially identify the presence of an unusual substance and ultimately identify the compound. Throughout the Division's initial procedures, the urine taken from "Chief Again" was consistently identified as containing an opiate with characteristics consistent with those of butorphanol. Ultimately the Division subjected the sample to gas chromatographic/mass spectral analysis. This refined analysis confirmed the presence of butorphonal. The consistency of the Division's findings at all levels of its testing provides compelling evidence that the urine sample taken from "Chief Again" did contain the narcotic butorphonal. Following the Division's testing, Tortora requested that it furnish the balance of the urine sample taken from "Chief Again", approximately 2om1, to Dr. Richard Sams for analysis. Dr. Sams subjected the sample to gas chromatographic/mass spectral analysis and found no evidence of butorphanol. While finding no evidence of butorphanol, Dr. Sams did not conclude that the sample did not contain the narcotic, but merely that he was unable to detect its presence. According to Dr. Sams, the limited volume of urine available for testing compromised his ability to detect the presence of butorphanol. He affirmatively concluded, however, that the Division's data was properly prepared and adequate to support a positive finding of butorphanol in the sample. Dr. Maylin's testimony was premised on a review of Dr. Sams' and the Division's written test reports, he undertook no independent analysis, and was not privy to any testimony offered at hearing. Dr. Maylin opined that if butorphanol were present Dr. Sams should have detected it and, based on certain assumptions, that the Division reported a false finding because of laboratory contamination. Dr. Maylin's opinions are rejected. Dr. Sams is familiar with the equipment and procedures he utilized. He of all people is most familiar with the capabilities and reliability of that analysis. Dr. Maylin's opinion that the analysis ran by Dr. Sams had more import than Dr. Sams ascribed to it is not credible. Dr. Maylin's opinion that the Division reported a false finding is likewise not credited. Dr. Maylin's opinion was predicated on the assumption that proper testing procedures were not followed. Dr. Maylin's assumptions were incorrect. While "Chief Again's" urine was found to test positive for butorphanol, Tortora denies any knowledge of how the narcotic could have been introduced into the horse's system. According to Tortora he was unfamiliar with this narcotic until these charges were brought, and "Chief Again" was not under any medical treatment. Tortora offered no evidence, however, of what provisions he took, if any, to supervise or otherwise protect "Chief Again's" integrity.
The Issue The issues in this case are whether Respondent violated Section 550.2415(1)(a), Florida Statutes (1996)1 by allowing a greyhound with a drug, medication, stimulant, depressant, hypnotic, narcotic, or local anesthetic, in its system to enter and complete a race and, if so, what, if any, disciplinary action should be taken against Respondent's pari-mutuel wagering occupational and business licenses.
Findings Of Fact Petitioner is the state agency responsible for regulating the pari-mutuel industry in the state, including the regulation and discipline of licensees such as Respondent. Respondent holds an Unrestricted "U1 " Professional individual pari-mutuel wagering occupational license, number 0526562-1081, and a business occupational pari-mutuel wagering license, number 1364008-1080, for Ron Runge Kennel. Respondent is the trainer of record for Prunella Scales ("Prunella"), a greyhound. On February 22, 1997, the Respondent entered Prunella in the thirteenth race at Sanford-Orlando Kennel Club (the "race") and allowed Prunella to complete the race. Prior to the start of the race, urine sample number 267912 was taken from Prunella. The urine analysis conducted by the Bureau of Laboratory Services revealed the presence of ecgonine methyl ester in sample number 267912. Ecgonine methyl ester is a metabolite of cocaine. Cocaine is a topical anesthetic and a class 1 drug. Respondent violated Section 550.2415(1)(a) by entering Prunella in the race with an impermissible drug in its system and allowing Prunella to complete the race in such a condition. As the trainer of record, Respondent is responsible for of the condition of a greyhound that he or she enters in a race. Respondent has an extensive disciplinary history. In August 1994, Petitioner fined Respondent $25.00 for racing a greyhound on an impermissible drug and redistributed the purse money. In September 1994, Petitioner fined Respondent a total of $50.00 for racing two greyhounds on an impermissible drug. In one instance, Petitioner redistributed the purse money. In November 1994, Petitioner fined Respondent $25.00 for racing a greyhound on an impermissible drug. Respondent's pari-mutuel occupational license was suspended until he paid the fine. In September 1995, Petitioner fined Respondent a total of $50.00 for racing two greyhounds on an impermissible drug. In one instance, the purse money was redistributed. In January 1996, Petitioner fined Respondent $100.00 for racing a greyhound on an impermissible drug and suspended Respondent's pari-mutuel occupational license until Respondent paid the fine. In March 1996, Petitioner fined Respondent $50.00 for racing a greyhound on procaine, an impermissible substance. In March 1997, Petitioner summarily suspended Respondent's licenses and denied Respondent all access to pari-mutuel grounds during the period of suspension. In addition to the foregoing drug violations, Respondent was found guilty of improperly using rabbits in the training of racing greyhounds in November 1991. He was fined $250.00 for that violation. On March 11, 1995, Respondent was fined $50.00 for presenting the wrong greyhound at the weigh-in, and on July 30, 1996, he was fined $50.00 for failure to present the proper greyhound at the weigh-in. Prior disciplinary action has been ineffective in rehabilitating Respondent. Respondent persists in the prohibited practice of racing animals on impermissible substances. License suspension and fines have no deterrent effect on Respondent. Respondent is not a viable candidate for rehabilitation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order and therein find Respondent guilty of violating Section 550.2415(1)(a) by racing an animal with an impermissible drug in its system and revoke Respondent's licenses. DONE AND ENTERED this 9th day of January, 1998, in Tallahassee, Leon County, Florida. Hearings Hearings DANIEL MANRY Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 9th day of January, 1998.
The Issue The issues are whether Respondent issued a voucher ticket without obtaining cash or cash equivalent in exchange, in violation of Florida Administrative Code Rule 61D-7.020(5)(b); had adjudication withheld on felony charges involving larceny, in violation of section 849.086(6)(g), Florida Statutes (2014); or was ejected from Gulfstream Park, in violation of section 550.0251(6), Florida Statutes, as alleged in the Second Amended Administrative Complaint; and if so, what is the appropriate sanction.1/
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering and cardrooms in the state of Florida, pursuant to chapter 550 and section 849.086. On April 27, 2014, Mr. Havey was licensed by the Division and was working at Silks mutuels window number 607 at Gulfstream Park, a facility authorized to conduct pari-mutuel wagering and cardroom operations. At the end of the day on April 27, 2014, Mr. Havey's cash drawer did not balance. After a review of surveillance tapes and other information, Mr. Jorge Aparicio, a security director with Gulfstream Park, decided to investigate further. On May 2, 2014, when Mr. Havey returned to work, he was interviewed by Mr. Aparicio about the missing money. Mr. Havey initially stated that he accidently printed out a voucher for $5,000.00 for his friend Darren, when he had intended to punch the voucher for only $500.00. He said that Darren was supposed to give him the money at the end of the day. Later, Mr. Havey stated he really printed out the voucher for $5,000.00, placed it in his right shirt pocket, and gave the voucher to his friend Eddy inside the men's restroom for his friend to cash. Later that day, Mr. Havey prepared a written statement regarding the money missing from his cash drawer. He wrote: My friend Eddy needed 500. loan because I told he was being thriten. I offer to help Eddy by giving him 500 vocher. Eddy told me he would pay me back in a week. Eddy didn't want to come to my window #607. Eddy asked me to meet in the bathroom. I punched a $500 vocher I thought but it ended being a $5000. vocher. I gave him the vocher & never saw Eddy again. I planded on browing the five hundred from my friend to put $500. back in my money so I would balance, but[.] Mr. Aparicio testified that Mr. Havey could not give a last name or address for his friend and noted that the name of the friend given by Mr. Havey changed during the course of the interview. After the interview, Mr. Aparicio called the president of Gulfstream Park and described what had taken place. He was directed to call the police and to exclude Mr. Havey from the property indefinitely. As reflected in the Security Report, Mr. Havey was "excluded indefinitely" from Gulfstream Park on May 2, 2014. This action did not necessarily bar Mr. Havey from the park permanently, for the president could allow him to return, but he was excluded unless and until the president took further action. This "indefinite" exclusion constituted an ejection from Gulfstream Park. When Mr. Havey left the investigation room, the Hallandale Beach Police were there. Mr. Havey testified that they did not ask him a single question, but immediately placed him under arrest and handcuffed him. On August 21, 2014, Mr. Havey entered a plea of nolo contendere to a charge of grand theft in the third degree in the Seventeenth Judicial Circuit Court, in and for Broward County, Florida. Adjudication was withheld. He was placed on 24 months' probation, with the condition that he pay Gulfstream Park $4,500.00 in restitution within 18 months. At hearing, Mr. Havey admitted he issued a voucher ticket without receiving cash or cash equivalent in return. He also testified that he pled no contest with the understanding that if he paid $4,500.00 restitution to Gulfstream Park, the charges would be "disposed of," and his record would be clear. Clear and convincing evidence shows that on April 27, 2014, Mr. Havey issued a voucher ticket without receiving cash or cash equivalent in return; that he was ejected from Gulfstream Park on May 2, 2014; and that he pled nolo contendere to grand theft in the third degree on August 21, 2014, with adjudication withheld. Mr. Havey testified that he has been involved in pari- mutuel wagering in various parks, in dog racing, and Jai Alai for 40 years. He stated that the incident was "out of his character," that it was drug and alcohol related, and that he was not thinking clearly. He testified that he could barely remember what had happened on that "dark day" in his life. He said that he sought treatment and is now on the way to full recovery. Mr. Havey expressed remorse for his actions. Mr. Havey testified that he is now working part time at Mardi Gras Casino in Hallandale. He has performed well and has not been in any trouble there. He noted, however, that he is only making $10.00 per hour, rather than the $25.00 per hour he was making at Gulfstream Park. He lamented that it is extremely difficult to "keep a roof over your head" on only $250.00 a week and that he needed to work for a few more years. He stated that his wife should shortly be receiving money for a disability claim and that when she did so, he would pay Gulfstream Park full restitution. He testified that he hoped that the president of Gulfstream would then let him return. No evidence of prior discipline was introduced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order: (1) finding that Mr. Patrick M. Havey was in violation of Florida Administrative Code Rule 61D-7.020(5)(b), was ejected from a pari-mutuel facility, and had adjudication withheld on a felony involving larceny; and (2) revoking his pari-mutuel occupational license. DONE AND ENTERED this 17th day of May, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 17th day of May, 2016.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating licensees in the pari-mutuel industry. Respondent, Albert P. Polito, holds a pari-mutuel wagering occupational license, license number 12037440-1081, and at all times material to this case was operating as a trainer at Pompano Park, a pari-mutuel wagering race grounds. In 1993, Respondent was employed by the Erenstoft family to train and race a standardbred horse named "Handy A." "Handy A" was purchased by Mrs. Erenstoft in 1992. Mrs. Erenstoft paid $4,500 for the horse. As is customary in the industry, "Handy A" was delivered to Respondent's care and custody. As the trainer Respondent was responsible for the stable fees, food, training, and care of the horse. In return, the owner paid Respondent a monthly trainer's fee. When "Handy A" sustained an injury in July, 1994, he was unable to continue racing. Respondent wanted to turn the horse out. Turning a horse out allows them recuperative time to determine whether the injury will heal sufficient to allow the horse to return to racing. In this case, the Erenstofts agreed that Respondent could turn out "Handy A." Respondent advised the Erenstofts that "Handy A" was turned out to a farm somewhere in central Florida. The Erenstofts paid all monies which were owed to Respondent for the care and training of "Handy A." The Erenstofts have not sold nor agreed to sell "Handy A." The Erenstofts have not seen "Handy A" since July, 1994. When Respondent did not return "Handy A" to Pompano Park after demands for same were made, the Erenstofts began inquiries to attempt to locate the horse. Since no attempt to register a new owner has occurred it is presumed the new owner does not race "Handy A" within the regulated pari-mutuel industry. One market available for such a horse is with the Amish. Typically buyers representing the Amish visit Pompano Park to acquire standardbred horses trained to pull carts. In this case, Respondent told Vic Papeo he had "Amished" the subject horse. If, in fact, "Handy A" was sold to the Amish it will be extremely difficult, if not impossible, to recover the horse. Respondent has not paid the Erenstofts for the sale of "Handy A." CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 550.105(6), Florida Statutes, provides, in pertinent part: The division may deny, revoke or suspend any occupational license if the applicant therefor or holder thereof accumulates unpaid obligations or defaults in obligations... Furthermore, Rule 61D-1.006(3)(a) states: The division may deny a license to or revoke, suspend or place conditions upon or restrictions on a license of any person, or rule off or declare ineligible any person who: 2. Has unpaid fines or financial obligations; In this case, there has been clear and convincing evidence presented that Respondent incurred a financial obligation to the Erenstofts and failed to return the horse, "Handy A." It is presumed Respondent disposed of the horse, by sale or otherwise, without the owner's permission. Respondent has failed to meet financial obligations and is, therefore, ineligible for licensure.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Division of Pari-Mutuel Wagering enter a final order revoking the pari-mutuel wagering occupational license of Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of December 1996. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December 1996. APPENDIX Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 14 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Royal H. Logan, Acting Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. Darby, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Albert Polito 5440 Northwest 55th Boulevard Apartment 11-207 Coconut Creek, Florida 33073
Findings Of Fact The Petitioners own and operate a farm in St. Johns County, Florida. During the 1991 potato-growing season, they grew atlantic chipping potatoes on their 400-acre farm, as well as on approximately 30 acres leased from another party by their daughter and son-in-law. The Petitioners' business is known as Pacetti Farms. Rubin is an Illinois corporation licensed to do business in Florida as a broker or dealer in agricultural products. Rubin customarily purchases potatoes from growers throughout the country at the appropriate season for resale, typically to various potato chip manufacturing companies. Mr. Rubin appeared at the hearing and testified on behalf of Rubin and as an adverse witness on behalf of the Petitioners. Rubin is licensed and bonded with a surety bond from Continental in accordance with the statutory authority cited below, enforced and regulated by the Department of Agriculture and Consumer Services ("Department"). On December 22, 1990, the Petitioners and Rubin entered into a written contract for the sale and purchase of 50,000 CWT of Florida atlantic chipping potatoes. That contract is in evidence as Exhibit 3 and is also known as the "set price contract". The contract called for shipment of the potatoes at a stated price of $6.35 per CWT, although the parties have stipulated and agreed that the actual contract price was intended as $6.00 per CWT. That figure is not in dispute in this proceeding. Shipment was to be made during the harvesting season between the dates of April 27, 1991 and June 15, 1991. The contract contained an escape clause or exception for "acts of God", with an explanatory parenthetic clause indicating that that was intended to mean circumstances beyond the control of the parties, such as flood, freeze, hail, etc. On or about February 15, 1991, severe cold weather struck the potato- growing area of St. Johns County, Florida. Temperatures ranged from 25 degrees to 19 degrees on that day, with a high wind blowing and very dry conditions. This resulted in soil being blown away from the newly-set potatoes under very cold temperatures. Because of this, the Petitioners had to work with tractors and cultivators far into the night to turn the blown-away soil back into the potato "sets". The Petitioners feared that this would cause some "dry eyes" and, therefore, lowered potato plant and potato production. In fact, however, upon observing the maturing plants during April of 1991, it appeared that the Petitioners would have a healthy, normal crop. The prior year the Petitioners had grown 133,000 CWT of potatoes on their 400 acres (excluding the Kirkers' 30 acres). With this background of an apparently-healthy crop in mind, the Petitioners were approached by Rubin on April 25, 1991 and negotiations ensued which resulted in the sale and purchase from Petitioners to Rubin of six additional loads of potatoes at the open market price of $19.50 per CWT. The six additional loads were in addition to the 50,000 CWT of potatoes agreed upon in the main contract entered into on December 22, 1990. This separate oral agreement for the six loads of potatoes at the market price of $19.50 per CWT was entered into prior to the Petitioners initiating delivery under the terms of the written contract of December 22, 1990. The parties thus agreed for the sale and purchase of six loads of potatoes at that market price to be delivered on Monday, Tuesday, and Wednesday of the following week, April 29th, April 30th, and May 1, 1991. Part of the consideration for that oral contract was the Petitioners' ability to furnish the six truckloads of potatoes on short notice, on the dates that Rubin required them. In other words, Rubin needed them in a hurry; and it was apparently worth $19.50 per CWT for him to get the potatoes delivered immediately on the dates requested. In the process of negotiating this oral contract, the Petitioners assured Rubin that he would have sufficient potatoes to meet his 50,000 CWT obligation under the written contract of December 22, 1990. This was not a misrepresentation on the part of the Petitioners, at this time, because the Petitioners, in good faith, believed they would be able to meet the 50,000 CWT set price contract and the oral contract for six additional truckloads, because of their belief concerning their crop estimate. This belief was based upon their observance of an apparently healthy crop and their knowledge that on their 400 acres, the year before, they had grown 133,000 CWT, as well as upon their knowledge that a normal crop estimate for the entire 430 acres at this location, under all of the prevailing circumstances, was 120,400 CWT. In fact, the Petitioners only contracted for 116,650 CWT of potatoes which, based upon a reasonable and appropriate crop estimate for this site and circumstances, would have allowed them to meet all their contracts, including the 50,000 CWT contract between the Petitioners and Rubin, although not all of the market sales for the Kirkers. After having thus assured Mr. Rubin that they could meet the contract of December 22, 1990 and still perform the oral contract for the six truckloads at market price, the Petitioners proceeded to carry out that oral agreement. It was a separate and distinct contract from the written contract dated December 22, 1990. Under the separate oral contract, they delivered the six truckloads of potatoes requested by Rubin. Rubin received them and paid $19.50 per CWT for them. On May 2, 1990, the Petitioners began delivering potatoes to Rubin under the terms and conditions of the written contract of December 22, 1990 and continued the deliveries throughout the remainder of the harvesting season. The first was shipped from Pacetti Farms on May 2, 1991 and the last load delivered to Rubin on that contract was shipped on June 1, 1991. During the 1991 growing and harvesting season, the area, including St. Johns County, experienced substantial crop damage due to excessive frost, rain, hail, and wind, which occurred during February of 1991 and then after April 25, 1991, with particular regard to excessive rainfall in May of 1991. This resulted in the area being declared an agricultural disaster area by the United States Department of Agriculture for that growing season. The Petitioners suffered damage to their crop as a result of these elements in February of 1991, as described above, and by excessive rainfall during May of 1991. Excessive rainfall caused root damage to their crop, which resulted in a lowered yield even though the plants viewed above ground appeared to be normal. This was aggravated by the fact that the Petitioners and other growers were legally unable to use the pesticide "Temik", for control of nematodes, during that growing season. Because of the nature of the crop involved, which grows underground, the potato yield is difficult to estimate at any given point in harvesting. The exact nature and extent of damage caused by weather conditions to a single crop is hard to estimate in advance. This difficulty is further compounded by differing soil types and climate conditions present within a particular growing area, especially with regard to farmers such as the Petitioners, who have their crops spread over multiple fields and farms. In mid-May of 1991, the Petitioners realized that there would be a crop shortage. The crop was damaged due to the weather-related factors mentioned above. The Petitioners notified Rubin that they expected their potato crop to fall short of expectations and that they would probably be unable to completely fill the contract with Rubin for the entire 50,000 CWT contracted for on December 22, 1990. In the meantime, before the 1991 planting season began, the Petitioners and Renee and Keith Kirker had entered into an agreement, whereby the Kirkers initiated their own farming operation on 30 acres of potato-growing land. The Kirkers leased that acreage from Diane Ross and received operating assistance from the Petitioners in the form of advances of all their operating costs, pursuant to an agreement between the Petitioners and the Kirkers, whereby the Petitioners would be repaid the estimated production costs for that 30-acre crop in the amount of $1,776.85 per acre, upon the sale of those 30 acres of potatoes. Potatoes are planted and harvested in the same sequence. Since the Petitioners assisted the Kirkers in planting their potatoes prior to the planting and completion of their own fields, the Petitioners borrowed some of the Kirkers' potatoes to fill their own contracts because those potatoes matured earlier, with the understanding that the Kirkers would be repaid in kind from the Petitioners' own fields during the remainder of the harvesting season. This is a common practice according to Ronald Brown, who testified for the Petitioners as an expert witness on farming practices. However, after the heavy rains in May of 1991, the Petitioners discovered that it would be necessary, in their view, to retain a portion of their last acreage in order to have potatoes to pay back the Kirkers for the potatoes borrowed. These potatoes would be sold by the Petitioners at market price, as agreed with the Kirkers. Upon discovering that their crop would not meet their contract obligations, the Petitioners attempted to prorate their remaining potatoes between their remaining contract customers in what they considered a fair and reasonable manner. On behalf of the Kirkers, the potatoes allocated for repayment to them were offered to Rubin, who, through its President, Mr. Rubin, declined to purchase them at the market price at which they were offered (higher than the contract price). The Petitioners' expert, Ronald Brown, established that, based upon accepted growers practices and his experience in the Hastings area, the Petitioners should have anticipated the yield for their 1991 crop at no more than 280 CWT per acre for the Petitioners' 430 acres (30 acres of which was the Kirkers' land). It is customary farming practice in the area, according to Brown, to enter into contracts for no more than 80% of the maximum anticipated yield of potatoes. The anticipated yield on the entire 430 acres of the Petitioners' and the Kirkers' land was, therefore, 120,400 CWT of potatoes. The principle of contracting no more than 80% of a maximum anticipated yield is designed to protect contracting parties in the event a smaller than anticipated yield occurs. A 280 CWT per acre yield is the generally-accepted yield amount under good growing conditions, according to Mr. Brown. The year before, the Petitioners had produced a total yield of 133,000 CWT on only 400 acres. The Petitioners entered into a total of six separate contracts for delivery of a total of 116,650 CWT of potatoes out of a reasonably anticipated maximum yield for the 430 acres of only 120,400 CWT. Thus, the Petitioners contracted 97% of the customary, accepted, anticipated maximum yield for the 430 acres for 1991. Thirty (30) of those acres, however, represent the potatoes which the Petitioners were obligated to the Kirkers to sell on their behalf at market price, rather than contract price. In spite of the fact that the Petitioners contracted 97% of the accepted, projected crop yield for 430 acres, the Petitioners, in fact, produced 117,000 CWT (approximate) on those 430 acres. Therefore, had they not diverted a certain amount of the crop to open market sales, they could have met their 116,650 CWT contractual obligations to the six contracting parties, including Rubin. It is also true, however, that that 117,000 CWT actual yield included the 30 acres of potatoes which the Petitioners were separately obligated to sell at open market price to repay the Kirkers. Notwithstanding the fact that the Petitioners had contracted 97% of the commonly-accepted, projected maximum yield, the Petitioners diverted 10,301.6 CWT of the 1991 crop on the entire 430 acres from contract sales to open market sales at much higher prices. Of those open market sales, 2,789.5 CWT were sold at market price after the last contract sales were made to Rubin. Had the Petitioners sold the entire 10,301.6 CWT of potatoes on contract, instead of at open market, all of the Petitioners' contractual requirements could have been met, including the contract with Rubin, although they would not then have been able to meet their obligations to the Kirkers. Based upon the above Findings of Fact supported by competent evidence, it is found that the preponderant evidence in this case does not support the Petitioners' contention that the Petitioners were unable to fulfill their contract obligation to Rubin due to an act of God. Although it is true that the Petitioners established that poor weather conditions, coupled with the absence of the ability to use the pesticide "Temik", had a deleterious effect on their crop production. The record shows that in spite of this, the Petitioners had the ability to fulfill their contract with Rubin if only approximately 5,000 CWT of the 10,301.6 CWT of potatoes sold on the open market had instead been allocated to the Petitioners' contract with Rubin to fill out the difference between the approximately 45,000 CWT honored under the contract and the contractual obligation to supply 50,000 CWT. The Petitioners produced on their own 400 acres 108,000 CWT. The remainder of the 117,582.5 CWT of potatoes from the total crop represented the potatoes grown on the Kirkers' 30 acres. Thus, the Kirkers' land produced approximately 8,600 CWT. The Petitioners supplied approximately 3,000 CWT under the separate, oral contract at market price and which were delivered to Rubin on April 29th, 30th, and May 1st (six loads at approximately 500 CWT per load). Then, the Petitioners sold the remainder of the total of 10,301.6 CWT of the entire Pacetti/Kirker crop or approximately 7,301.6 CWT on open market sales to others. The remainder of the 108,000 CWT grown on the Petitioners' own 400 acres, not sold to Rubin under the contract of December 22, 1990 or under the oral contract of April 25, 1991 (the six loads at market), were contracted out to other buyers. The ultimate effect of these contracts was that the Petitioners had contracted for 116,650 CWT. Thus, the Petitioners had imprudently contracted approximately 97% of the accepted, projected crop yield of 120,400 CWT, knowing that they were obligated to sell the Kirkers 8,600 or so CWT at market price and not on contract. Thus, the Petitioners clearly over- contracted the crop yield which they reasonably should have expected on the total 430 acres under the generally-accepted method of calculation of crop yield, under good growing conditions, of 280 CWT per acre, established by expert witness, Brown. This over-contracting practice, together with selling an excess amount of potatoes at market price (over and above those sold at market by the separate, oral contract with Rubin at the initial part of the harvesting season), is what actually prevented the Petitioners from fulfilling Rubin's contract of 50,000 CWT, rather than an act of God, predetermined condition for claiming impossibility of performance on that contract due to the above- described weather conditions. Even though the Petitioners were obligated to sell the Kirkers' entire 30 acres of yield, approximately 8,600 CWT, at market price, the Petitioners would still have had enough potatoes, even with their less-than-expected yield of 108,000 CWT represented by their own 400 acres, to have filled out the Rubin contract if they had not contracted out so many potatoes to other contracting buyers and had not sold as many potatoes at market price off contract as, indeed, they sold. Since the act of God condition is not what prevented the Petitioners from filling the written contract with Rubin for 50,000 CWT, it is clear that the Petitioners thus breached that contract. In this connection, it should be pointed out that the written contract with Rubin was entered into before any of the other contracts for the potato crop in question. The two contracts with Rubin are, however, separate contracts. The Petitioners established that there was a separate oral agreement entered into on April 25th between the Petitioners and Rubin and that the consideration flowing from the Petitioners to Mr. Rubin was that he needed the six loads of potatoes on short notice delivered on specific dates, April 29th, 30th, and May 1st, for which he was willing, therefore, to pay the $19.50 market price, knowing that it was for other potatoes that he contracted at $6.00. The Petitioners performed by providing the loads of potatoes when he wanted them and he paid for them in full. Thus, that contract was executed by consideration passing from each party to the other, and the contract was completed. The written contract with Rubin dated December 22, 1990 for the 50,000 CWT was the contract which the Petitioners breached for the above-found reasons. Rubin would, therefore, be entitled to damages for that breach based upon the facts proven in this case. There is no counterclaim or other action pending in this forum by Rubin against the Petitioners, however. Consequently, any damages proven by the breach of the written contract can only, at best, be applied against the amount due and owing the Petitioners for the billed, but unpaid, loads; that is, against the amount in controversy of $40,015.20. Rubin, however, has not produced any evidence to show what his damages might be. The record establishes, as found above, that, of the 48,361 CWT of potatoes delivered to Rubin, approximately 3,000 of which were delivered under the separate oral contract for six loads, Rubin only received approximately 45,000 CWT under the 50,000 CWT written contract. Thus, Rubin would appear to be entitled to damages caused by failing to get the last approximately 5,000 CWT of potatoes. The record, however, does not establish what those damages might be because it is not established whether Rubin had to purchase potatoes from another source at a higher price to meet the remainder of the 50,000 CWT amount, or, conversely, whether Rubin was able to purchase them from another source at a lower price than the $6.00 per CWT contract price, so that Rubin would actually benefit by the Petitioners' breach of that contract. Neither does the record reflect another possible scenario whereby Rubin might have simply accepted the approximate 5,000 CWT shortage and simply lost customers and potential profits represented by that amount of potatoes, or, finally, whether he simply did not purchase the shortage of 5,000 CWT from another source and had no missed sales for that amount of potatoes anyway and, therefore, no loss and no damage. The record simply does not reflect what Rubin's damages might have been because of the shortage under the written contract deliveries. In any event, the record evidence establishes that the oral contract was fully performed, with consideration flowing to each of the parties and that those potatoes were fully paid for at the market price. Then, the Petitioners delivered the written contract loads at $6.00 per CWT to Rubin represented by the claimed $40,015.00. That remains unpaid by Rubin. Rubin is obligated to pay that amount because Rubin was obligated to, and received those potatoes at the $6.00 contract price. Rubin would then appear to be entitled to claim damages if, indeed, any were suffered, for the breach of that written contract by the Petitioners' failure to supply the last (approximate) 5,000 CWT due Rubin under that contract. That resolution of their dispute, however, cannot be performed in this forum because of insufficient evidence, as delineated above, and remains to be resolved by another action by Rubin in another forum.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondents, Jack Rubin & Son, Inc. and Continental Casualty Co., Inc. be found jointly and severally liable for payment of $40,015.20 to the Petitioners for potatoes delivered to the Respondent, Jack Rubin & Son, Inc., for which payment has not yet been made. DONE AND ENTERED this 20th day of November, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-548A Petitioners' Proposed Findings of Fact 1-16. Accepted. Respondent's Proposed Findings of Fact 1. Accepted, in part, but subordinate to the Hearing Officer's findings of fact on this subject matter because the evidence establishes that 30 acres of potatoes belonged to the Kirkers even though Pacetti Farms was responsible for all operations with regard to planting and harvesting those 30 acres, furnishing costs, operational expertise, equipment and labor as an advance against the Kirkers' crop sale. 2-5. Accepted, except that it is not found that the entire 430 acres of potatoes were the Petitioners' potatoes. 30 acres of potatoes belonged to the Kirkers. Rejected, as not entirely in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence, to the extent that the 97% of the accepted projected crop yield contracted for by the Petitioners represents an inclusion of the 30 acres of the Kirkers' potatoes in that percentage of crop yield projection. This is erroneous because the 30 acres were the Kirkers' potatoes which the Petitioners were handling for them. Accepted in concept, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esq. General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 John Michael Traynor, Esquire Charles E. Pellicer, Esquire 28 Cordova Street St. Augustine, Florida 32084 C. Holt Smith, III, Esquire 3100 University Boulevard So. Suite 101 Jacksonville, FL 32016
