Findings Of Fact On February 23 and April 19, 1985, Respondent purchased woody ornamental plants from Pleasant View Nursery for a total purchase price of $650.50. The only payment on this account made by Respondent was $100 on November 15, 1985, leaving a balance due of $550.50. On February 23 and March 16, 1985, Respondent purchased citrus trees from Hillsborough Wholesale Nursery for a total purchase price of $720.90. The only payment on this account made by Respondent was $150, leaving a balance due of $570.90. Arthur A. Yambor, Respondent's President, is a licensed dealer in agricultural products under the provisions of Sections 604.15 - 604.30, F.S., and is bonded through United States Fidelity and Guaranty Company, Co- Respondent, as required by Section 604.19. Petitioners filed their complaints concerning this matter with the Department of Agriculture within nine months from the date of sale. Payment in full for the sales in question was to have been made within thirty days of the date of each sale. Respondent admits that the sales were made, and that Respondent did receive the agricultural products from Petitioner, for which these claims are made. However, Arthur A. Yambor testified that Respondent has not made full payment on these accounts because he believes the citrus trees purchased from Hillsborough Wholesale Nursery were infected with citrus canker which resulted in these, as well as other trees in his nursery, having to be destroyed. He has refused to make further payment to Petitioners due to the financial loss he sustained as a result of, what he believes to have been, infected trees he received from Hillsborough Wholesale Nursery. However, no proof was offered on behalf of Respondent that, in fact, trees purchased from Hillsborough Wholesale Nursery were infected. While Respondent did receive citrus canker compensation, there is no evidence that the canker resulted from citrus trees purchased from Hillsborough Wholesale Nursery.
Recommendation Based upon the foregoing, it is recommended that the Department of Agriculture enter a Final Order requiring Respondent to make full payment on the remaining indebtedness claimed by Petitioners. DONE and ENTERED this 9th day of May, 1996 in Tallahassee, Florida. DONALD D. CONN, 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 9th day of May, 1986. COPIES FURNISHED: Douglas A. Holmberg, President Pleasant View Nursery & Hillsborough Wholesale Nursery 1321 N. Valrico Road Valrico, Florida 33594 Paul B. Boswell, Manager 1321 N. Valrico Road Valrico, Florida 33594 Arthur A. Yambor, President Shelton's of Brandon, Inc. 1351 W. Brandon Boulevard Brandon, Florida 33511 United States Fidelity and Guaranty Company Post Office Box 1138 Baltimore, Maryland 21203 Joe Kight, Chief Bureau of License and Bond Room 418, Mayo Building Tallahassee, Florida 32301 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
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 that Petitioner, J & L Farms, Inc., take nothing on its complaint and that the respondents, Bloomingdale Landscape Nursery, Inc., and Southeastern Casualty & Indemnity Insurance Company, go hence without day. DONE and ENTERED this 2nd day of March, 1989, in Tallahassee, Leon County, 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 2nd day of March, 1989.
The Issue The issues to be determined are whether, with respect to each application filed, Florida Housing Finance Corporation’s (Florida Housing) review and decision-making process in response to the Request for Applications 2020-201 (RFA) was contrary to the agency’s governing statutes, the agency’s rules or policies, or the RFA.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to promote public welfare by administering the governmental function of financing affordable housing in Florida. Section 420.5099 designates Florida Housing as the housing credit agency for Florida within the meaning of section 42(h)(7)(a) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits. The low-income housing tax credit program (commonly referred to as “tax credits” or “housing credits”) was enacted to incentivize the private market to invest in affordable rental housing. These housing credits are awarded competitively to housing developers in Florida for rental housing projects which qualify. The effect is to reduce the amount that the developer must otherwise borrow. Because the total debt is lower, the housing credit property can (and must) offer lower, more affordable rents. Developers also covenant to keep rents at affordable levels for periods of 30 to 50 years as consideration for receipt of the housing credits. The demand for housing credits provided by the federal government exceeds supply. The Competitive Application Process Section 420.507(48) authorizes Florida Housing to allocate housing credits and other funding through requests for proposals or other competitive solicitations, and Florida Housing has adopted Florida Administrative Code Chapter 67-60 to prescribe the competitive solicitation process. Chapter 67-60 provides that Florida Housing allocate its competitive funding through the bid protest provisions of section 120.57(3). Applicants for funding request, in their applications, a specific dollar amount of housing credits to be given to the applicant each year for a period of ten years. Applicants normally will sell the rights to the future stream of income housing credits (through the sale of almost all of the ownership interest in the applicant entity) to an investor to generate the amount of capital needed to build the development. The amount an applicant can receive depends on several factors, such as a certain percentage of the projected total development cost; a maximum funding amount per development based on the county in which the development will be located; and whether the development is located within certain designated areas of some counties. These are just examples of the factors considered, and this is by no means an exhaustive list. Housing credits are made available through a competitive application process that starts with the issuance of an RFA. An RFA is considered to be a “request for proposal” as indicated in rule 67-60.009(4). The RFA in this case was issued on August 26, 2020, and responses were due November 5, 2020. The RFA was modified September 11, 2020, and October 12, 2020, but with no change with respect to the response deadline. Through the RFA, Florida Housing expects to award up to an estimated $15,275,810 of housing credits to proposed developments in medium-sized counties, and up to an estimated $1,453,730 of housing credits to proposed developments in small counties. Florida Housing received 84 applications in response to RFA 2020-201. A Review Committee was appointed to review the applications and make recommendations to the Florida Housing Board of Directors (Board). The Review Committee found 79 applications eligible and five applications ineligible for funding. Through the ranking and selection process outlined in the RFA, 10 applications were preliminarily recommended for funding. The Review Committee developed charts listing its eligibility and funding recommendations to be presented to the Board. The federal government enacted the Consolidated Appropriations Act (CCA) in December 2020, and as a result, an additional $3,367,501 in housing credits became available for affordable housing for Escambia, Santa Rosa, Okaloosa, Walton, and Bay Counties, which were impacted by Hurricane Sally. The staff at Florida Housing recommended using the CCA funding to award housing credits to additional highest-ranking eligible applications in qualified disaster areas, subject to the county award tally, regardless of the county size in RFA 2020-201 and developed a chart listing its CCA funding recommendations to be presented to the Board. On January 22, 2021, the Board met and considered the recommendations of the Review Committee and staff for RFA 2020-201. At approximately 2:50 p.m. that day, all of the applicants in RFA 2020-201 were provided notice that the Board determined whether applications were eligible or ineligible for consideration of funding, and that certain eligible applicants were preliminarily selected for funding, subject to satisfactory completion of the credit underwriting process. Notice was provided by posting on the Florida Housing website two spreadsheets: one listing the Board-approved scoring results in RFA 2020-201; and one identifying the applications which Florida Housing proposed to fund. In the January 22, 2021, posting, Florida Housing announced its intention to award funding to 24 applicants, including The Villages, Pinnacle at Hammock Springs, and Rosemary Place. Petitioners timely filed Notices of Protest and Petitions for Formal Administrative Proceedings. All Intervenors have been properly recognized as such. The terms of RFA 2020-201 were not challenged. RFA 2020-201 Ranking and Selection Process The RFA contemplates a structure in which the applicant is scored on eligibility items and obtains points for other items. A summary of the eligibility items is listed in Section 5.A.1. of the RFA, beginning at page 71. Only applications that meet all of the eligibility requirements will be eligible for funding and considered for the funding selection. This challenge does not raise any issues with respect to the point totals awarded to the applicants. The RFA has four funding goals: The Corporation has a goal to fund five Medium County Developments that qualify for the Local Government Areas of Opportunity Funding Goal outlined in Section Four A.11.a of the RFA, with a preference that three of the Applications meet the criteria outlined in Section Four, A.11.b(1) of the RFA to be considered submitted but not awarded in RFA 2019-113, and two of the Applications meet the criteria outlined in Section Four, A.11.b(2) of the RFA to be considered not submitted in RFA 2019-113. The Corporation has a goal to fund one Development that qualifies for the Local Revitalization Initiative Goal outlined in Section Four A.5.i of the RFA. The Corporation has a goal to fund two Developments with a Demographic commitment of Family that select and qualify for the geographic Areas of Opportunity/ SADDA Goal outlined in Section Four A.10.a(1)(d) of the RFA. The Corporation has a goal to fund one Development that qualifies for the SunRail Goal outlined in Section Four, A.5.e.(5) of the RFA. *Note: During the Funding Selection Process, outlined below, Developments selected for these goals will only count toward one goal with one exception: If an Application that was selected to meet the Local Government Areas of Opportunity Goal or Local Revitalization Initiative Goal also qualifies for the SunRail Goal, the SunRail Goal will also be considered met. (Jt. Exh. 1, pp.75). At page 76 of Joint Exhibit 1, the RFA also sets forth the sorting order to be used when selecting applications to meet the Local Government Areas of Opportunity Funding Goal: The highest scoring applications will be determined by first sorting together all eligible Priority I Medium County Applications from highest score to lowest score, with any scores that are tied separated in the following order. This will then be repeated for Priority II Applications: First, counties of the Applications that (i) qualified for the Local Government Areas of Opportunity Funding Goal in FRA 2019-113 and (ii) were invited to enter credit underwriting will receive lower preference than other Medium Counties competing for the Local Government Areas of Opportunity Funding Goal. This affects the following counties: Brevard, Lee, Santa Rosa, Sarasota, and Volusia. The remaining counties will receive higher preference. Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.10.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.10.e of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); Next, by the Application’s Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); Next, by the Application’s eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); And finally, by lottery number, resulting in the lowest lottery number receiving preference. Next, the RFA sets forth the sorting order for selecting applications to meet the Local Revitalization Initiative Goal. It then sets for the sorting order after selecting applications to meet the Local Government Areas of Opportunity Funding Goal (LGAO Designation) and Local Revitalization Initiative Goal. The RFA includes a funding test where a) small county applications will be selected for funding only if there is enough small county funding ($1,453,730) available to fully fund the Eligible Housing Credit Request Amount, and b) medium county applications will be selected for funding only if there is enough medium county funding ($15,275,810) available to fully fund the Eligible Housing Credit Request Amount. The RFA outlines a specific County Award Tally based on Priority Levels as follows: Priority I County Award Tally As each Priority I Application is selected for tentative funding, the county where the Development is located will have one Application credited towards the County Award Tally. The Corporation will prioritize eligible unfunded Priority I Applications that meet the Funding Test and are located within counties that have the lowest County Award Tally above other eligible unfunded Priority I Applications with a higher County Award Tally that also meet the Funding Test, even if the Priority I Applications with a higher County Award Tally are higher ranked. Priority II County Award Tally As each Priority II Application is selected for tentative funding, the county where the proposed Development is located will have one Application credited towards the County Award Tally. The Corporation will prioritize eligible unfunded Priority II Applications that meet the Funding Test and are located within counties that have the lowest County Award Tally above other eligible unfunded Priority II Applications with a higher County Award Tally that also meet the Funding Test, even if the Priority II Applications with a higher County Award Tally are higher ranked. (Jt. Exh. 1, pp. 78-79) The RFA outlines the selection process at pages 79-81 as follows: Five Applications that qualify for the Local Government Areas of Opportunity Funding Goal Applications that were submitted in RFA 2019- 113 but not Awarded The first three Applications that will be considered for funding will be the highest ranking eligible Medium County Priority I Applications that qualify for the Local Government Areas of Opportunity Funding Goal that were submitted in RFA 2019- 113 but not awarded, subject to the Funding Test and County Award Tally. Priority I Applications will continue to be selected until this preference is met. If there are no remaining eligible unfunded Priority I Applications that qualify for this preference, then the process will continue using Priority II Applications until this preference is met. Applications that were not submitted in RFA 2019-113 The next Applications that will be considered for funding will be the highest ranking eligible Medium County Priority I Applications that qualify for the Local Government Areas of Opportunity Funding Goal that were not submitted in 2019-113, subject to the Funding Test and the County Award Tally. Priority I Applications will continue to be selected until this Goal is met. If there are no remaining eligible unfunded Priority I Applications that qualify for this Goal, then the process will continue using Priority II Applications until this Goal is met or until it is determined that there are not eligible unfunded Applications that can meet this Goal. One Application that qualifies for the Local Revitalization Initiative Goal The next Application selected for funding will be the highest ranking eligible unfunded Priority I Application that qualifies for the Local Revitalization Initiative Goal, subject to the Funding Test and the County Award Tally. If there are no eligible unfunded Priority I Applications that qualify for this Goal, then the highest ranking eligible unfunded Priority II Application that qualifies for the Local Revitalization Initiative Goal will be selected, subject to the Funding Test and the County Award Tally. Two Family Applications that qualify for the Geographic Areas of Opportunity/ HUD-designated SADDA Goal The next two Applications select [sic] for funding will be the highest ranking eligible unfunded Priority I Family Applications that qualify for the Geographic Areas of Opportunity/ HUD-designated SADDA Goal, subject to the Funding Test and the County Award Tally. Priority I Applications will continue to be selected until this goal is met. If there are no remaining eligible unfunded Priority I Applications that qualify for this Goal, then the process will continue using Priority II Applications until this Goal is met or until it is determined that there are no eligible unfunded Applications that can meet this goal. One Application that Qualifies for the SunRail Goal If an Application that was selected to meet the Local Government Areas of Opportunity Goal described in a. above or Local Revitalization Initiative Goal described in b. above also qualifies for the SunRail Goal, this Goal will be considered met without selecting an additional Application. If none of the Applications selected to meet the Local Government Areas of Opportunity Goal or Local Revitalization also qualify for the SunRail Goal, the next Application selected for funding will be the highest ranking eligible unfunded Priority I Application that qualifies for the SunRail Goal, subject to the Funding Test and the County Award Tally. If there are no eligible unfunded Priority I Applications that qualify for this Goal, then the highest ranking eligible unfunded Priority II Application that qualifies for the SunRail Goal will be selected, subject to the Funding Test and the County Award Tally. The next Applications selected for funding will be the highest ranking eligible unfunded Priority I Small County Applications that (i) can meet the Small County Funding Test and (ii) have a County Award Tally that is less than or equal to any other eligible unfunded Small County Priority I Applications. If Small County funding remains and no unfunded eligible Small County Priority I Application can meet the Small County Funding Test, then the process will continue using Priority II Applications until this Goal is met or until no unfunded Small County Priority II Application can meet the Small County Funding Test. If Small County funding remains and no unfunded eligible Small County Applications can meet the Small County Funding Test, no further Small County Applications will be selected, and the remaining Small County Funding will be added to the Medium County funding amount. The next Applications selected for funding will be the highest ranking eligible unfunded Priority I Medium County Applications that (i) can meet the Medium County Funding Test and (ii) have a County Award Tally that is less than or equal to any other eligible unfunded Medium County Priority I Applications. If Medium County funding remains and no unfunded eligible Medium County Priority I Applications can meet the Medium County Funding Test, then the process will continue using Priority II Applications until this Goal is met or until no unfunded eligible Medium County Priority II Applications can meet the Small County Funding Test. If Medium County Funding remains and no unfunded eligible Medium County Application can meet the Medium County Funding Test, no further Applications will be selected and the remaining funding will be distributed as approved by the Board. After the description of the sorting process, the RFA specifies: Funding that becomes available after the Board takes action on the Committee’s recommendation(s), due to an Applicant withdrawing, an Applicant declining its invitation to enter credit underwriting or the Applicant’s inability to satisfy a requirement outlined in this RFA, and/or provisions outlined in Rule Chapter 67-48, F.A.C., will be distributed as approved by the Board. All 84 applications for RFA 2020-201 were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of the RFA, Florida Administrative Code Chapters 67-48 and 67-60, and applicable federal regulations. The Fletcher Black Application During the scoring process, Florida Housing determined that the Fletcher Black application was eligible for funding, but ineligible for the LGAO Designation. Fletcher Black was not selected for preliminary funding. If Fletcher Black’s application was eligible for the LGAO Designation, it would have been selected for funding. It would have been selected as the second of the three developments selected for the LGAO Priority I applications that qualified for the preference for those development applications submitted in RFA 2019-113, but not awarded as outlined on pages 69-70 of the RFA. Additionally, if Fletcher Black is eligible for the LGAO Designation, then The Villages and Pinnacle at Hammock Springs will be displaced from funding. In order to qualify for the LGAO Designation and Goal, applicants must “demonstrate a high level of Local Government interest in the project via an increased amount of Local Government contributions in the form of cash loans and/or cash grants.” The RFA outlines the types and amounts of contributions from Local Governments that will be accepted to meet the LGAO Designation. Fletcher Black’s proposed development is in Bay County. Therefore, Fletcher Black would be required to demonstrate a contribution of at least $340,000 to be considered for the LGAO Designation. The RFA at page 67 expressly limits the number of applications from the same government jurisdiction as follows: Limit on the number of Applications within the same jurisdiction A proposed Development may only qualify where a jurisdiction (i.e., the county or a municipality) has contributed cash loans and/or cash grants for any proposed Development applying for this RFA in an amount sufficient to qualify for the Local Government Areas of Opportunity Designation. A Local Government can only contribute to one Application that qualifies for the Local Government Area of Opportunity Designation, regardless of how the contribution is characterized. Any single jurisdiction may not contribute cash loans and/or cash grants to more than one proposed Development applying for the Local Government Areas of Opportunity Designation. If multiple Applications demonstrate Local Government Areas of Opportunity Funding from the same jurisdiction and those Applications qualify for the Local Government Areas of Opportunity Designation, then all such Applications will be deemed ineligible for the Local Government Areas of Opportunity Designation, regardless of the amount of Local Government Areas of Opportunity Funding or how the contribution is characterized. However, Local Governments may pool contributions to support one Application (i.e., the county and the city may provide contribution to the same Development and each Local Government will submit its own form as an Attachment to the Application). Page 68 of the RFA describes the requirements for demonstrating LGAO funding: In order to be eligible to be considered Local Government Areas of Opportunity Funding, the cash loans and/or cash grants must be demonstrated via one or both of the Florida Housing Local Government Verification of Contribution Forms (Form Rev. 07-2019), called “Local Government Verification of Contribution – Loan” form and/or the “Local Government Verification of Contribution -- Grant” form. The forms must meet the Non-Corporation Funding Proposal Requirements outlined in 10.b.(2)(a) above, the qualifying funding must be reflected as a source on the Development Cost Pro Forma, and the applicable form(s) must be provided as Attachment 16 to the Application. Applications are not required to reflect the value (difference between the face amount and the net present value of the payment streams) on any Local Government Verification Forms. Similarly, Section 10.b.(2)(a) of the RFA specifies that, Note: Eligible Local Government financial commitments (i.e., grants and loans) can be considered a source of financing without meeting the requirements above if the Applicant provides a properly completed and executed Local Government Verification of Contribution – Grant Form (Form 0702019) and/or the Local Government Verification of Contribution – Loan Form (Form 07-2019). Fletcher Black submitted a Local Government Verification of Contribution – Grant Form (Grant Form) from the City of Panama City in the amount of $340,000. Fletcher Black’s Grant Form was executed by Greg Bridnicki, as the Mayor of Panama City and “Approved as to Form and Correctness” by Nevin Zimmerman, City Attorney. Fletcher Black’s request for funding from Panama City was placed on the agenda for the City of Panama City City Commission’s August 25, 2020, meeting, and approved by the City Commission, which authorized Mr. Bridnicki to sign the Grant Form. Fletcher Black had obtained a similar LGAO Form in the previous year using the same established process. Fletcher Black did not submit any documentation in the RFA Application regarding the process used to gain approval of the grant. However, no party identified any requirement in the RFA that such a description must be included in the Application. Fletcher Black cannot be faulted for not supplying something that is not required. Another Applicant, Panama Manor App. No. 2021-074C, submitted a Grant Form from the City of Panama City in the amount of $340,000 executed by Michael Johnson. Mr. Johnson’s title is listed as the Director of Community Development/CRA/CDBG/SHIP. During the scoring process, Florida Housing’s scorer found that since both Fletcher Black and Panama Manor submitted documentation for the LGAO Designation from the same jurisdiction, the City of Panama City, according to the terms of the RFA, both applications were deemed ineligible for the LGAO Designation. The Grant Form submitted by both Fletcher Black and Panama Manor contains the following instruction regarding who is authorized to sign the form on behalf of the local government: This certification must be signed by the chief appointed official (staff) responsible for such approvals, Mayor, City Manager, County Manager/ Administrator/ Coordinator, Chairperson of the City Council/Commission or Chairperson of the Board of County Commissioners. … One of the authorized persons named above may sign this form for certification of state, federal or Local Government funds initially obtained or derived from a Local Government that is directly administered by an intermediary such as a housing finance authority, a community reinvestment corporation, or a state-certified Community Housing Development Organization (CHDO). Other signatories are not acceptable. The Applicant will not receive credit for this contribution if the certification is improperly signed. To be considered for points, the amount of the contribution stated on this form must be a precise dollar amount and cannot include words such as estimated, up to, maximum, not to exceed, etc. Michael Johnson was not authorized by the City of Panama City to sign the Grant Form. Greg Bridnicki, as Mayor of Panama City, is an authorized signatory. Panama Manor’s request was not submitted to the City Commission for approval. Because the Grant Form was improperly signed, Panama Manor should not, by the terms of the RFA, receive credit for the LGAO Designation. Had Panama Manor’s application received the LGAO Designation, it would not have been selected for funding because its lottery number was too high. Michael Johnson is the Director of Community Development for the City of Panama City. While he is an employee for the City of Panama City, he also performs duties for Bay County through an interlocal agreement between the city and the county. The Grant Form submitted for Panama Manor stated on its face that it was signed on behalf of the City of Panama City, but Mr. Johnson testified that the form was supposed to reflect that it was for Bay County. Mr. Johnson testified that over the last 17 years, he has executed approximately 40 forms for applications for funding from Florida Housing. He acknowledged that there are multiple types of forms that may need signatures from city or county officials to complete a Florida Housing application, such as zoning forms and infrastructure-verification forms, as well as local government contribution forms. Since Florida Housing changed its process to use RFAs in 2013, Mr. Johnson could not recall if he signed the Grant Forms or whether the city manager did. He could not confirm signing a single Grant Form for either the city or the county since 2013. Mr. Johnson believed that he had the authority to sign Grant Forms on behalf of both the city and the county. Mark McQueen, the City of Panama City city manager and Mr. Johnson’s boss, does not share his belief. According to Mr. McQueen, whose testimony is credited, Panama City committed only to the Fletcher Black property, took no official action with respect to Panama Manor’s application, and Mr. Johnson was not authorized to sign the Grant Form committing funds on behalf of the City. When Mr. Johnson realized that the Panama Manor Grant Form stated that it was signed on behalf of Panama City as opposed to Bay County, he called the legal department for Florida Housing to explain the error. He testified that he spoke with several people at Florida Housing, including Jean Salmonson, David Weston, and someone in the multi-family development section. Mr. Johnson was not sure of the dates when these telephone calls were made, but it appears that the telephone calls were after the submission of the applications but before the posting of funding selections. Marissa Button is Florida Housing’s Director of Multifamily Programs. She testified that Florida Housing is aware of the contention that the form submitted by Panama Manor was signed in error and should have reflected that it was signed on behalf of Bay County. She was also aware that according to Mr. McQueen, Mr. Johnson did not have the authority to sign a Grant Form on behalf of the City of Panama City. She stated: Q. How does that information impact Florida Housing’s scoring decision? A. This --at this juncture it does not impact Florida Housing’s scoring determination as to the Panama Manor or Fletcher Black being designated as LGAO goal. … We take the requirement of the RFA specifically references the – the submission of what – when there’s a submission of multiple applications from the same jurisdiction, and so we, Florida Housing, consider that as of – as of the application deadline what this applicant has submitted is a form executed on behalf of the City of Panama City. To change the designation, which I understand from Mr. Johnson’s testimony it was a mistake, he intended to issue on behalf of Bay County and reflect that, we interpret that to be a – an improper amendment or modification to the application after the application submission. So we do not consider it to change the scoring designation of the – of either the Panama Manor application or the resulting consequence to the Fletcher Black application. * * * Q. Now, Fletcher Black may argue that it’s unfair to treat its application as ineligible for the LGAO designation and goals when the Fletcher Black [application] did not contain an error. What would your response be to that? A. You know, my response is, we score the application in accordance with the terms of the RFA. The applications are responsible for all parts of that – that RFA with regard to their application submission. It’s clear in this RFA that there would be a consequence if other applications were submitted from the same jurisdiction for an LGAO designation. And, unfortunately, that’s the mistake that happened, but the fairness – it is a fair process because we are – we are administering the RFA as it has been, you know – as the terms exist to the public and to the fellow applications that came in for funding. So, I – I do believe it’s unfortunate that that consequence impacts their application; however, it is – it is fair because that’s the consequence if it happens. (T-39-40, 45-46). Panama Manor’s application did not demonstrate local government funding because the Grant Form was not signed by someone with authority to do so. The RFA specifically states that “[o]ther signatories are not acceptable. The Applicant will not receive credit for this contribution if the certification is improperly signed.” Where forms signed by local government officials are challenged, Ms. Button indicated that Florida Housing has in the past relied upon or deferred to local government officials to address the propriety of the forms signed. The issue usually arises with forms related to zoning or other facets encompassed in the Ability to Proceed forms. Here, the credible testimony of local officials is that the Grant Form for Panama Manor was intended to reflect a funding commitment from Bay County and the signator on Panama Manor’s Grant Form was not authorized to sign on behalf of the City of Panama City. It would be contrary to competition if Panama Manor were allowed to amend its application to correct the Grant Form. It is appropriate to disregard Panama Manor’s Grant Form, given the inaccuracies contained therein. If Panama Manor’s application is not selected for the LGAO Designation because of its failure to demonstrate that the City of Panama City is providing local support for Panama Manor’s project, then there is only one application with a valid Grant Form from the City of Panama City, and that is Fletcher Black. Ms. Button testified that it would provide a competitive advantage to Fletcher Black if Fletcher Black were considered for the LGAO Designation. However, she stated that applicants are responsible for all parts of their application submission. Fletcher Black did not make an error in its application and is not requesting that it be amended in any way. It is asking that the application be considered as submitted, just as other applications are considered. Florida Housing’s decision to find Fletcher Black ineligible for the LGAO Designation is clearly erroneous, in light of the clear demonstration that Panama Manor did not demonstrate a local funding commitment from the City of Panama City, and Fletcher Black is the only entity that did so. The Rosemary Place Application Florida Housing deemed the Rosemary Place application to be eligible and, pursuant to the terms of the RFA, preliminarily selected Rosemary Place for funding. One of the requirements for eligibility under the RFA is that applicants demonstrate Site Control by providing a properly completed and executed Florida Housing Finance Corporation Site Control Certification form (Site Control Form). For the Site Control Form to be considered complete, the applicant must attach documentation demonstrating that it is a party to an eligible contract or lease or is the owner of the subject property. Applicants can demonstrate Site Control by providing documentation that meets the requirements in the RFA for an eligible contract, deed or certificate of title, or a lease. The RFA specifies at pages 39-40 that an eligible contract must meet the following conditions: It must have a term that does not expire before May 31, 2021 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than May 31, 2021; It must specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance; The Applicant must be the buyer unless there is an assignment of the eligible contract, signed by the assignor and the assignee, which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant: and The owner of the subject property must be the seller, or is a party to one or more intermediate contracts, agreements, assignments, options, or conveyances between or among the owner, the Applicant, or other parties, that have the effect of assigning the owner’s right to sell the property to the seller. Any intermediate contract must meet the criteria for an eligible contract in (a) and (b) above. The RFA notifies applicants that Florida Housing’s review of the Site Control documents is limited. At page 40, the RFA states: Note: The Corporation will not review the site control documentation that is submitted with the Site Control Certification form during the scoring process unless there is a reason to believe that the form has been improperly executed, nor will it in any case evaluate the validity or enforceability of any such documentation. During scoring, the Corporation will rely on the properly executed Site Control Certification form to determine whether an Applicant has met the requirement of this RFA to demonstrate site control. The Corporation has no authority to, and will not, evaluate the validity or enforceability of any eligible site control documentation that is attached to the Site Control Certification form during the scoring process. During credit underwriting, if it is determined that the site control documents do not meet the above requirements, the Corporation may rescind the award. The RFA also requires that, for the purpose of demonstrating Site Control, “documentation must include all relevant intermediate contracts, agreements, assignments, options, conveyances, intermediate leases and subleases. If the proposed Development consists of Scattered Sites, site control must be demonstrated for all of the Scattered Sites.” A “scattered site” is defined in Florida Administrative Code Rule 67- 48.002(106) as “a Development site that, when taken as a whole, is comprised of real property that is not contiguous (each such non-contiguous site within a Scattered Site Development, is considered to be a “Scattered Site”). For purposes of this definition ‘contiguous’ means touching at a point or along a boundary. …” Rosemary Place submitted a properly completed and executed Site Control Form which was accepted by Florida Housing during its review, scoring, and ranking process. As an attachment to its Site Control Form, Rosemary Place attached a Purchase and Sale Agreement (Rosemary Place Agreement) between Kyle McDorman as the Seller and RM FL XX Prime, LLC (the applicant entity for Rosemary Place) as the Purchaser. The Rosemary Place Agreement has a term that does not expire before May 31, 2021, and states that the buyer’s remedy for default on the part of the seller includes or is specific performance. The Rosemary Place Application identified the address of the proposed development as “690’ N of intsctn of 331-Bus & Azalea Dr on W side of 331- Bus; within city limits of Freeport, FL (Walton County).” (J-16, page 5). The Development Location Point, consisting of latitude and longitude coordinates was correctly identified, and the Rosemary Place Application stated that the proposed development did not consist of scattered sites. Exhibit A of the Rosemary Place Purchase and Sale Agreement identifies the property as follows: That Thirteen (13.0) Acres situated in the City of Freeport, FL (Distrct 2); Section 10, Township 1S, Range 19, and which is part of Walton County, FL Parcel 10-1S-19-23000-009-0020 which is further described in the land records of Walton County, FL as 210FT SQ FT IN THE SE/C OF THE W1/2 OF THE NE1/4 OF SW1/4 IN SEC 10-1S-19W, 204-184, 1204-279, 2660- 2976, 3084-4417 and which is recorded in that Warranty Deed from Grantor Aaron M and Rachel N Sloan Elkins to Grantee Kyle J. McDorman which Warranty Deed is recorded in the land records of Walton County, FL at Book 3084 and Page Number 4417. The Property is further described and identified as the shaded area denoted with an X in the image below. Based on the Walton County Property Appraiser map, the shaded area denoted with an X is contained within Parcel No. 10-1S-19-23000-009-0000, which is owned by the Seller, Kyle McDorman, as opposed to Parcel No. 10- 1S-19-23000-009-0020. Timshell contends that the shaded area denoted with an X overlaps parcels outside of Parcel No. 10-1S-19-23000-009-0000. Timshell contends that the submitted Site Control documentation submitted by Rosemary Place is not consistent with the requirements of the RFA because of the uncertainty of the property that is actually being purchased and where the proposed Development site is actually located. Timshell also contends that the Rosemary Place Purchase and Sale Agreement, as written and submitted to Florida Housing, denotes scattered sites which were not disclosed by Rosemary Place in its application. Rosemary Place contends, and Florida Housing agrees, that the shaded area denoted with an X on Exhibit A to the Rosemary Place Agreement sufficiently identifies the property being purchased through the agreement as the Development site. Moreover, the visual depiction of the property is consistent with the written description of the development location in the Rosemary Place Application at J-16, page 5. The Rosemary Place Application does not depict scattered sites. Even assuming that the parcel number included in Exhibit A were part of the purchase reflected in the Sale and Purchase Agreement, an eligible contract may involve the purchase of multiple properties or a larger parcel of property than will be developed. What is most important is that the documents show where the development will be located, which Rosemary Place’s application demonstrates, and that the applicant will have control over the location. Ms. Button testified that Florida Housing did not consider the Rosemary Place Application to be proposing a scattered sites development. Rosemary Place affirmatively stated that it was not proposing a scattered sites development; did not list coordinates for scattered sites; and did not identify the location of scattered sites on other forms required by the RFA. Exhibit A to the Purchase and Sale Agreement contains typographical errors in the written description of the property being sold. Stewart Rutledge, who prepared the Purchase and Sale Agreement, testified credibly that parcel numbers are listed on the Walton County Property Appraiser website, and that to see a particular parcel description, the user clicks on the parcel number he or she wants to see. When preparing the Purchase and Sale Agreement, Mr. Rutledge mistakenly clicked on the parcel number immediately above the parcel number he wanted, and he did not notice the error. The parcel number reflected in the Purchase and Sale Agreement references another parcel owned by the seller, Kyle McDorman. Florida Housing considered the typographical error within Exhibit A that results in the listing of the wrong parcel number and property description to be a waivable minor irregularity because the error did not result in the omission of any material information; did not create uncertainty that a term of the RFA was met; and did not adversely impact Florida Housing or the public. The same could be said for other typographical error in the Purchase and Sale Agreement, such as capitalizing the word “property” when it should not have been. Ms. Button also noted that the RFA does not require applicants to submit a land survey of the proposed development site with its application. The RFA states that Florida Housing reserves the right to waive minor irregularities. A minor irregularity is defined in rule 67-60.008 as: those irregularities in an Application, such as computation, typographical, or other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements of the competitive solicitation have been met; do not provide a competitive advantage or benefit not enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or corrected by the Corporation. Timshell presented the testimony of Stephen Rutan, a professional land surveyor. Mr. Rutan believed that, based on the property description in the Purchase and Sale Agreement, the proposed development site overlapped with another parcel not owned by the seller. Mr. Rutan did not perform a professional land survey and admitted that the boundary lines in his informational Exhibit (Timshell Exhibit 4) were not completely accurate. Given that the measurements that Mr. Rutan provided were estimates and not the result of a survey, and the testimony by Mr. Rutledge that the parcel identification was the result of a clerical error, Mr. Rutan’s testimony is given little weight, and does not demonstrate that the error in the Purchase and Sale Agreement included in Rosemary Place’s application created any real uncertainty that the terms and requirements of the competitive solicitation have been met. Florida Housing’s determination that the error in Rosemary Place’s application was a waivable minor irregularity is not clearly erroneous. Madison Oaks East, Madison Oaks West, and Madison Grove Florida Housing determined that the Madison Oaks West, Madison Oaks East, and Madison Grove Applications were eligible for funding but ineligible for the “submitted but not awarded in RFA 2019-113 Preference.” Madison Oaks West, Madison Oaks East, and Madison Grove were not selected for preliminary funding. Within the LGAO Designation and Goal, the RFA contained preferences for funding. One of those preferences was for developments that were submitted but not awarded in RFA 2019-113 (the 2019-113 Preference). In order to qualify for the 2019-113 Preference, an Applicant must meet the following requirements: The question at 11.b.(1) of Exhibit A must reflect confirmation that the Development was submitted but not awarded in RFA 2019-113; The Application in RFA 2019-113 must have provided a Local Government Verification of Contribution – Loan or Grant form demonstrating the minimum Local Government Areas of Opportunity Funding Amount outlined in RFA 2019-113; The Development Location Point and latitude and longitude coordinates for all scattered sites stated at question 5. of Exhibit A for the proposed Development must be located on the same site(s) as the Application submitted in RFA 2019-113. These coordinates do not need to be identical to the Application submitted in RFA 2019-113. All entities that are Principals for the Applicant and Developer(s) disclosed on the Principal Disclosure Form submitted for the proposed Development and the Application submitted in RFA 2019-113 must be identical; and The Application submitted in RFA 2019-113 was not invited to enter credit underwriting. Florida Housing scored Madison Oaks East, Madison Oaks West, and Madison Grove as qualifying for all requirements of the 2019-113 Preference except for the requirement that “[a]ll entities that are Principals for the Applicant and Developer(s) disclosed on the Principal Disclosure Form submitted for the proposed Development and the Application submitted in RFA 2019-113 must be identical.” (Identical Principals Requirement). The Principals disclosed on the Principals Disclosure Form for Madison Oaks West, Madison Oaks East, and Madison Grove in RFA 2019- 113 were identical to the Principals disclosed in the applications submitted for RFA 2020-201. The plain language of the RFA only requires that the “entities that are Principals for the Applicant and Developer(s) be identical.” The plain language of the RFA does not require that the Applicant and Developer entities be identical to those listed in the 2019-113 application. Madison Oaks West, Madison Oaks East, and Madison Grove met the requirements for the 2019-113 preference. However, even though Madison Oaks East, Madison Oaks West, and Madison Grove are eligible for the 2019-113 Preference, they would not be selected for funding under the terms of the RFA. The Villages Florida Housing determined that The Villages Application is eligible and, pursuant to the terms of the RFA, The Villages has been preliminarily selected for funding. During scoring, Florida Housing reviewed the Villages’ Zoning Form and determined that it met the requirements of the RFA to demonstrate appropriate zoning. Madison Oaks East, Madison Oaks West, and Madison Grove alleged in their Petitions that The Villages failed to demonstrate Ability to Proceed and appropriate zoning as required by the terms of the RFA. Prior to hearing, Madison Oaks West, Madison Oaks East, and Madison Grove withdrew their challenge to The Villages’ eligibility for funding. However, should Florida Housing determine, as recommended, that Panama Manor’s Grant Form did not demonstrate a funding commitment from Panama City, then Fletcher Black would receive funding as opposed to The Villages and Pinnacle at Hammock Springs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order as to Case No. 21-0515BID, finding that Fletcher Black is eligible for the LGAO Designation, and awarding funding to Fletcher Black, subject to the successful completion of credit underwriting; that with respect to Case Nos. 21-0516BID, 21-0517BID, and 21-0518BID, finding that Madison Oaks East, Madison Oaks West, and Madison Grove are eligible for the 2019-113 Preference, but are not selected for funding; and with respect to Case No. 21-0520BID, finding that the decision to award funding to Rosemary Place was not clearly erroneous, and the error in its application was a minor waivable irregularity. DONE AND ENTERED this 14th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. Timothy Schulte, Esquire Zimmerman, Kiser & Sutcliffe, P.A. 315 East Robinson Street Post Office Box 3000 (32802) Orlando, Florida 32801 Lawrence E. Sellers, Jr., Esquire Holland & Knight, LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301 Michael P. Donaldson, Esquire Carlton Fields, P.A. Suite 500 215 South Monroe Street Tallahassee, Florida 32302 Corporation Clerk Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 S LISA SHEARER NELSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2021. M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 Hugh R. Brown, General Counsel Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 Betty Zachem, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 Tiffany A. Roddenberry, Esquire Holland & Knight, LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301
The Issue The issues in this case are whether Raysbrook Sod, Inc. (Respondent), is indebted to Florida Sod, Inc. (Petitioner), related to the sale and purchase of sod, and, if so, in what amount.
Findings Of Fact Petitioner is a corporation engaged in the business of harvesting sod. Petitioner is located in LaBelle, Florida. Respondent is a corporation located in Riverview, Florida, and is also engaged in the sod business. In September 2007, Respondent was interested in purchasing some sod in order to satisfy a customer's needs. Respondent's regional supervisor, Gabriel Monsivais, approached a gentleman by the name of Trampis Dowdle about purchasing sod. Monsivais had never met Dowdle and, in fact, knew him only as "Mr. Trampis." Dowdle represented that he could obtain sod from Petitioner, and a deal was struck. There was no written contract between Monsivais and Dowdle, nor--quite interestingly- -between Petitioner and Respondent. Nonetheless, Respondent had its drivers go to Petitioner's sod field and begin loading sod for Respondent's use. In all, approximately 1,700 pallets of sod were acquired from Petitioner's field by Respondent. Each time a load of pallets was taken, a Load Sheet was created to show the number of pallets, the location of the field, and the name of the person taking the sod. The driver of the truck was expected to sign the Load Sheet, indicating that the sod had indeed been received. There is no dispute between the parties about the number of pallets taken by Respondent's drivers.1 As sod was taken by Respondent, Petitioner would issue an invoice reflecting the amount of sod and the price to be paid. The invoices were sent to Respondent via U.S. Mail. The total amount billed for the sod was $42,559.16. Respondent issued a check (No. 8899) in the amount of $1,271.16, made payable to Petitioner on November 30, 2007, in payment of the first invoice from Petitioner. No further checks from Respondent were received by Petitioner, leaving a balance due of $41,288.00.2 Respondent, however, did attempt to make payments for the sod it purchased. Respondent wrote checks to Dowdle based on Dowdle's representations that he either owned Petitioner's company or was working for Petitioner. In fact, Dowdle neither owned nor was in any way affiliated with Petitioner. Dowdle was apparently defrauding Respondent (and possibly Petitioner as well). Respondent's representative, Joseph Bushong, and Petitioner's representative, Jake Alderman, had never met prior to the day of the final hearing in this matter. There was no written contract between the parties. The entire business relationship between the parties was done orally, based on conversations between Monsivais and Dowdle. Nonetheless, Respondent did obtain over $42,000.00 worth of sod from Petitioner. Respondent does not contest this fact. Respondent's actions indicate acknowledgement of the presumed relationship between the parties. Respondent submitted a credit application to Petitioner with references and credit information to be used by Petitioner in extending credit to Respondent for the sod it was purchasing. Respondent issued at least one check directly to Petitioner for payment of the sod in response to an invoice issued by Petitioner. The check was made payable to "Florida Sod" in the amount of $1,271.16. That check directly corresponds to the amount in Invoice No. 1697 from Petitioner dated October 8, 2007. Respondent did receive additional invoices from Petitioner for the sod Respondent had purchased and received. Clearly, there was an understanding between the two companies that a business relationship existed. After making its first payment to Petitioner, Respondent's subsequent payments for the sod were made directly to Dowdle and his companies. One such payment, made by way of a credit card, was actually applied to a restaurant with which Dowdle apparently had some business connection. Other payments were made via checks made payable to other Dowdle interests. Respondent made payments to Dowdle in the mistaken belief that Dowdle was the agent of or employed by Petitioner. In fact, Dowdle has never been affiliated with Petitioner. Petitioner did not receive any of the payments made by Respondent to Dowdle. Petitioner and Dowdle are not related or affiliated in any fashion (other than a prior arm's-length sod purchase between the two). It is clear that Dowdle received the payments intended for Petitioner in payment for the sod purchased by Respondent. Dowdle, whose whereabouts are unknown by the parties, did not provide Petitioner with the payments. Rather, from the evidence, it appears that Dowdle kept the payments, thereby committing a fraud on both Petitioner and Respondent. Though both parties are somewhat at fault in this matter for failure to utilize normal and acceptable business practices, one or the other party must necessarily bear the burden of payment. The evidence supports Petitioner in this regard because it best followed normal business procedures. Had Respondent made its remittance checks payable to Petitioner (who had issued the invoices), Dowdle would not have been able to abscond with the money. Had Respondent obtained some affirmative proof that Dowdle was an agent of Petitioner, Respondent would have known better than to provide money to Dowdle. Had Respondent contacted Petitioner directly instead of relying on third parties (its foreman and Dowdle), the deception would have been uncovered. However, the facts of this case support the proposition that Petitioner made a valid sale of sod to Respondent, and Respondent did not pay Petitioner for the sod.
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 requiring Respondent to pay Petitioner the sum of $41,288.00 within 30 days of entry of a final order. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 31st day of October, 2008.
The Issue Whether Respondent violated Subsection 464.018(1)(h), Florida Statutes (2003),1 and Florida Administrative Code Rule 64B9-8.005(1)(c), and, if so, what discipline should be imposed.
Findings Of Fact On March 14, 2004, Ms. Harris was employed at Melbourne Terrace Residential Care Center (Melbourne Terrace) as a certified nursing assistant (C.N.A.). Melbourne Terrace is a long-term care facility for geriatric residents. On January 26, 2004, Ms. Harris was permanently assigned to the 11:00 p.m.-to-7 a.m. shift on the west wing of the facility. On March 5, 2004, Ms. Harris tendered her resignation effective March 24, 2004. On March 14, 2004, Ms. Harris clocked-in at around 10:45 p.m. Ms. Linda Lovewell, a supervising licensed practical nurse (L.P.N.), had been advised that the east wing was short a C.N.A. on that date. She reassigned Ms. Harris to the east wing for the 11:00-to-7:00 shift. Two L.P.N.s, Patty Avila and Olga Vickerie, were working as supervisors on the east wing that evening. When Ms. Harris got to the east wing, she was advised by Ms. Avila that she could not work on the east wing because Ms. Harris' sister also worked the same shift on the east wing. Apparently, Melbourne Terrace had adopted a policy that relatives could not work on the same wing during the same shift. Ms. Avila told Ms. Harris to wait until she could call a supervisor to straighten out the reassignment. Ms. Harris was not given specific permission to go home. Ms. Harris did not wait, but clocked-out at 11:09 p.m. She did not advise either Ms. Avila, Ms. Lovewell, or Ms. Vickerie that she was clocking- out. At the final hearing, Ms. Harris explained that she left because she had ridden to work with her sister and needed to catch a ride home with her cousin if she was not going to be able to work that evening. Although, there may have been a policy that would have prevented Ms. Harris from working on the east wing that evening, there was no evidence presented that Ms. Harris would have been prohibited from working on the west wing, which was her regular assignment. Ms. Avila did not realize that Ms. Harris had left the facility until about an hour into the shift. She assumed that Ms. Harris was not on the east wing because she was cooling off because she was angry. Melbourne Terrace's employee handbook provides that "[e]mployees may not leave assigned work area without the approval of the supervisor." Ms. Harris had received and read the handbook and was aware that she had to notify her supervisor before leaving. Melbourne Terrace was short one C.N.A. on March 14, 2004. Because of Ms. Harris' abrupt departure, the facility was unable to secure a substitute C.N.A., leaving Melbourne Terrace in possible violation of staffing requirements and creating difficulties for lack of time to find a substitute C.N.A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Bertha Harris guilty of violating Subsection 464.018(1)(h), Florida Statutes; imposing an administrative fine of $250; and placing her on probation for one year with terms to be set by the Board of Nursing. DONE AND ENTERED this 18th day of August, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 August, 2005.
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Bonita Sneiderman, a/k/a Bonita Mattingly (Ms. Mattingly), is a Caucasian female born March 17, 1953. At the time of the events complained about in this proceeding, Ms. Mattingly was 53 years old. Ms. Mattingly was then known as Ms. Sneiderman and was single. Ms. Mattingly married and changed her name shortly before the hearing in this case. Dillards, Inc., is a corporation that operates a chain of department stores, referred to as Dillards. In many of the Dillards stores, there are styling salons. The Dillards department store at the Orange Park Mall in Orange Park, Florida is referred to as Store #232. During the time period relevant to this case, Susan Konstantatos was the Salon Manager of the salon at Store #232. On July 26, 2005, Ms. Konstantatos attended a manager's meeting, in which she received and discussed new policies for the salons. One such policy dealt with the schedules for salon employees and stated that all new hires would work five-day, full-time schedules. This policy, however, did not necessarily apply to employees already employed at the salons. For example, employees that worked in the Iveys salon before Dillards took over what used to be the Iveys store were considered to be "grandfathered in." Dillards honored whatever scheduling terms the employees had negotiated when taking their positions with Iveys. George Craywick, Cynthia Anderson and Marie Cox were three such salon employees. In September 2005, Ms. Mattingly applied for and received a position as a hair stylist in Dillards Store #232. Her application for employment with the store indicates that she applied for a full-time position. The application also indicates that she was hired for a full-time position. On September 21, 2005, Petitioner attended a new employee orientation session and signed the new employee orientation sheet, acknowledging that she had received orientation on Respondent's Associate Work Rules and Attendance Policy. Petitioner also signed an Associate Acknowledgment Form indicating that she received and understood Respondent's Associate Work Rules and General Policies. The Associate Work Rules and General Policies for Dillards reiterated the importance of attendance and provided notice that a "no show" would not be tolerated and would result in termination of employment. Among the stylists' job duties was an activity called "instant eventing." Instant eventing was an activity designed to generate interest in using the salon's services. Stylists could choose the type of instant eventing they would perform, such as handing out business cards, setting up a paraffin wax table and offering demonstrations, or setting up a color table with hair color swatches. Petitioner's chosen method of instant eventing involved setting up the paraffin wax demonstration. Instant eventing not only created interest in the salon, but hopefully helped new stylists to establish a following for their services. Stylists were expected to participate in instant eventing when they had no appointments. As a consequence, the more customers a stylist had, the less time he or she had to devote to instant eventing and the less stylists were expected to participate in the activity. Petitioner complains that George Craywick was not required to instant event and claims that she never saw him participate in any instant eventing activity. Mr. Craywick had more customers than any other stylist working at the Dillards salon. As a result of the number of repeat customers he served, he did not have the need for or the opportunity to engage in the same amount of instant eventing that Petitioner had. There is evidence that Mr. Craywick participated in a color table as an instant event, but it is unclear whether his participation in this activity was during the time that Petitioner was employed. Petitioner admitted that while she never saw Mr. Craywick participate in instant eventing, she had no knowledge as to whether he participated at times when she was not working with him. During May 2006, all of the salon's stylists at Store #232 were scheduled to work five days per week and one Sunday per month. When an employee worked on Sunday, Ms. Konstantatos attempted to schedule another day off for the employee during that week. Often the day off would be Monday, but the coverage needs of the salon would control. Mr. Craywick often worked on his scheduled days off at Ms. Konstantatos' request to ensure overage for the salon. Others sometimes did the same. Petitioner was scheduled to work Sunday, May 7, 2006. On or about May 1, 2006, Ms. Konstantatos checked the posted schedule and saw that Petitioner's name had been crossed off the schedule for Monday, May 8, 2006. Ms. Konstantatos had not removed Petitioner from the schedule and assumed that Petitioner had crossed her name off because she was working Sunday. Ms. Konstantatos needed Petitioner to work Monday, May 8, 2006, in order to ensure that the salon was adequately staffed. Petitioner had not worked the previous Monday. Ms. Konstantatos left Petitioner a note stating that Petitioner needed to work on Monday, May 8, 2006. After receiving the note, Petitioner called Ms. Konstantatos on Wednesday, May 3, 2006, and told her she could not work on Monday because she had made arrangements to go out of town that day. Petitioner's regular day off is Tuesday. Ms. Konstantatos advised that she needed Petitioner to work Monday to make sure that there was proper coverage for the salon, but that she could give Petitioner Wednesday off so that her days off would be consecutive. Petitioner insisted that she could not work on Monday, May 8, 2006. Ms. Konstantatos informed her that if she did not work on Monday, she would be considered to have abandoned her job and her employment would be terminated. Whether or not she worked on Monday, May 8, 2006, remained Petitioner's choice. Petitioner worked Thursday through Saturday, May 4-6, 2006. On Saturday evening, Petitioner packed up her belongings and left a note indicating that she had arranged for someone else to cover her shift on Sunday and would not be at work on Monday. She never returned to work because she considered herself to have been fired. On May 11, 2007, Respondent terminated Respondent for job abandonment. Between September 2005 and May 2006, Respondent terminated several other salon employees for job abandonment or excessive absenteeism. Those employees were both male and female, married and single. Their ages ranged from 21 to 35. After Petitioner's termination, Ms. Konstantatos hired Debra Doss as a stylist. At the time she was hired, Ms. Doss was a 49-year-old single female.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of discrimination. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of October, 2007. COPIES FURNISHED: Bonita Y. Mattingly 2040 Wells Road, Apartment 2-E Orange Park, Florida 32073 Grant D. Petersen, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one, Dennis R. Nevels, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one Cora Bracy, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one Renee Boren Hayes, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one, Annette Calloway, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes. Whether or not on or about December 10, 1976, Florida Beauty College, Inc. and Henry Dixon as President, Manager and Licensed Instructor, allowed the school to operate on members of the public without any licensed instructor being present in violation of Rules 21F-2.24 and 21F-2.25, Florida Administrative Code; thereby violating Section 477.15(9), Florida Statutes, and Section 477.27(12), Florida Statutes. Whether or not on or about September 4, 1976, Henry Dixon, was drinking and became publicly intoxicated during the day time hours at his school and in doing such violated Section 477.15(6) and (7), Florida Statutes. Whether or not between September, 1976 and January, 1977, the students of the Respondent were not receiving experience and a receptionist in violation of Rule 21F-2.16, Florida Administrative Code; the school did not have an adequate library in violation of Rule 21F-2.20, Florida Administrative Code; the school did not have the required number of thermal units, heat caps or steamers, in violation of Rule 21F-2.07, Florida Administrative Code; the school did not have separate junior and senior departments in violation of Rules 21F-2.23, 21F- 2.24 and 21F-2.25, Florida Administrative Code; the school did not have the required minimum equipment of six shampoo bowls and six manicure tables in violation of Rule 21F-2.08, Florida Administrative Code; and the Respondents had not posted their inspection rating sheets as required by Rule 21F-2.07, Florida Administrative Code; thereby violating Sections 477.08, 477.15(7), (8) and (9) and Section 477.27(8) and (12), Florida Statutes. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one, A. J. Quentaro, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes. Whether or not between September, 1976 and February, 1977, Florida Beauty College, Inc. and Henry Dixon as President, Manager and Licensed Instructor, failed to issue and post student permits and identification badges in spite of repeated warnings from the Board's inspector, and for that reason were in violation of Rule 21F-2.07(4), Rule 21F-2.25, and Rule 21F-2.28, Florida Administrative Code; thereby violating Sections 477.08, 477.15(7)(8) and (9), and 477.27(8) and (12), Florida Statutes. Whether or not between the period September, 1976 and February, 1977, the Respondents allowed students without required hours to work unfettered on the public; misrepresented the amount of hours certain students had to members of the public, and posted on a bulletin board for the public to discern the names of certain students whom the Respondents favored; in violation of Rules 21F-2.23, 21F-2.24, 21F-2.25, 21F-2.28 and 21F-2.17(b), Florida Administrative Code, thereby violating Sections 477.08, 477.15(7), (8) and (9), 477.27(8) and , Florida Statutes.
Findings Of Fact At all times pertinent to the administrative complaint, up to and including the date of the hearing in this cause, the Florida Beauty College, Inc. was the holder of license no. 043, held with the Florida State Board of Cosmetology, and Henry Dixon was licensed as an instructor by the Florida State Board of Cosmetology under license no. 22909. The licenses were held for the purpose of doing business in Jacksonville, Florida. From April, 1975 through February, 1977, the relevant periods in the administrative complaint, the Florida Beauty College, Inc. and Henry Dixon, as the President, Manager and a Licensed Instructor, operated a cosmetology school in Jacksonville, Florida. In an effort to prove the allegations set forth in the administrative complaint the Petitioner offered the testimony of Linda Geiger and Brenda Gene Schwerm, former students of the Florida Beauty College, Inc. Part of their testimony pertained to counts 1 - 4 and count 8. These five counts alleged that Dennis R. Nevels, Cora Bracy, Renee Boren Hayes, Annette Calloway and A. J. Quentaro had been allowed by the Respondents to teach in the cosmetology school at a time when the aforementioned persons were unlicensed as instructors. Ms. Geiger and Ms. Schwerm, collectively, gave testimony to the effect that on one or more occasions Novels, Bracy, Hayes, Calloway and Quentaro taught other students at the Florida Beauty College, with the permission of Henry Dixon, and at times his insistence, that the students attend sessions being taught by the five named individuals. This testimony of Ms. Geiger and Ms. Schwerm was opposed through the testimony of James Burdett and Cynthia Kinser, former students of the Florida Beauty College; and through the testimony of Michell Johnson, the daughter of Henry Dixon and a licensed instructor in the Florida Beauty College and Henry Dixon, one of the Respondents. The testimony of Mr. Burdett, Ms. Kinser, Ms. Johnson and Mr. Dixon was to the effect that the students Nevels, Bracy, Hayes, Calloway and Quentaro never taught other students in the beauty college under the permission of Dixon or other members of the staff. Their recollection was that some of the named students; specifically Novels, Calloway and Quentaro demonstrated certain techniques used in the cutting of hair or the treatment of hair and other cosmetology needs. In analyzing the competing points of view of the witnesses offered in the hearing, it should be noted that there is a clear and apparent interest on the part of Mr. Dixon the Respondent, and his daughter, Ms. Johnson, one of the instructors within the school. It should also be noted that Ms. Geiger had been suspended from the school on November 19, 1976 and had been dismayed by the dismissal of one Ken Branson, a licensed instructor at the school, whom she felt was a more qualified instructor than either Mr. Dixon or his daughter Ms. Johnson. Ms. Geiger had also been ostracized for filing a complaint against the school which lead to the present administrative complaint and was upset because she felt the necessity to apologize to the other students in the school at the time the complaint was made known. Ms. Schwerm was concerned about the dismissal of Mr. Branson and expressed this concern in terms of feeling that the quality of instruction had been lowered once Branson left the college. The background of the witnesses Burdett and Kinser lead to the conclusion that they had no apparent interest in the hearing. In view of all the facts on the question of whether or not the named individuals were teaching in the school, it is concluded that those individuals did not teach and at most only demonstrated certain techniques for the benefit of other students. Therefore, notwithstanding the fact that these named individuals, to wit: Nevels, Bracy, Hayes, Calloway and Quentaro, were not licensed instructors, there has been no violation of Rule 21F-2.17(b), Florida Administrative Code, and Section 477.08(1), Florida Statutes, to cause a violation of Sections 477.15(7) and (9), Florida Statutes, because neither the Florida Beauty College, Inc. or Henry Dixon, allowed any unlicensed person to teach at the school as alleged in counts 1 - 4 and 8. In count 5, the administrative complaint accuses Florida Beauty College, Inc. and Henry Dixon of allowing the operation of the school in terms of the service to the public without any licensed instructor being present in violation of Rules 21F-2.24 and 21F-2.25, Florida Administrative Code, which allegedly constitutes a violation of Section 477.15(9), Florida Statutes and Section 477.27(12), Florida Statutes. The testimony in the hearing revealed that on a routine basis between 9:30 and 10:30 a.m., students with the requisite number of hours were allowed to service customers without any licensed instructor being directly in the room. Mr. Dixon was in the adjacent office which has an observation window, that would allow him to see the work being done by the students and to give necessary instructions. The language of Rules 21F-2.24 and 21F-2.25, Florida Administrative Code reads as follows: 21F-2.24 Health Certificates. A permanent health certificate showing results of a blood test and chest x-ray or equivalent respiratory communicable disease test must be submitted with each application for examination by any applicant. 21F-2.25 Permit Cards (Student Identification) Identification cards will be issued for each student in school showing student's name, date of enrollment, permit number and classification. These cards are to be inserted in badges furnished by the school and worn on the student uniform at all times while attending school. If evening classes are held, permits for those attending each session should be posted separately and designated as "Day Class", "Evening Class" or "Part-time Class". An examination of the above cited provisions demonstrates that they do not pertain to the question of allowing unauthorized persons to operate on members of the public without a licensed instructor being in attendance. Therefore, those provisions do not apply to the facts. Count 5 also charges a violation of Section 477.15(9), Florida Statutes, which imposes suspension or revocation for violations of any of the provisions of Section 477.23, Florida Statutes. A review of the provisions of Section 477.23, Florida Statutes, demonstrates that none of those provisions have application to an allegation of allowing unauthorized persons to operate on members of the public without licensed instructors being in attendance. Finally, count 5 alleges a violation of Section 477.27(12), Florida Statutes. This provision pertains to the penalties to be assessed for violations of any of the rules or regulations of the Petitioner. There have been no violations alleged or shown, consequently the penalties are not relevant. Count 6 of the administrative complaint charges Henry Dixon with drinking and becoming publicly intoxicated during the daytime hours at his cosmetology school in violation of Section 477.15(6) and (7), Florida Statutes, those provisions state the following: 477.15 Suspension or revocation of certificate; grounds.-- The board may either refuse to issue, or renew, or may suspend or revoke any certificate of registration for any of the following causes: * * * Habitual drunkenness or habitual addiction to the use of morphine, cocaine or other habit- forming drugs; Immoral or unprofessional conduct; The facts indicate that on September 4, 1976, while the business was still in operation and patrons were being attended, Henry Dixon came into the service part of the salon with a beer in his hand and was acting in a festive mood. The occasion of his actions was a party that was being held for the benefit of one of the students. Although there is some testimony that Dixon was getting intoxicated there is no showing that Mr. Dixon was in fact intoxicated. An analysis of this testimony leaves the impression that the Petitioner has failed to show any habitual drunkenness or addiction to morphine, cocaine or other habit-forming drugs, as alleged. Likewise, the conduct was not immoral. However, such conduct is unprofessional. Count 7 of the administrative complaint has numerous provisions. The first of those provisions is a contention that the students in the college from September, 1976 to January, 1977 were not afforded an opportunity to receive experience as a receptionist in violation of Rule 21F-2.16, Florida Administrative Code. A complete review of the facts indicate that the students were given that opportunity and took advantage of such opportunity. Count 7 additionally accuses the school of not having an adequate library in violation of Rule 21F-2.220, Florida Administrative Code. A review of the facts indicates that there was sufficient literature available to the students to constitute a library within the meaning of provisions of the Florida Administrative Code. One of the allegations set forth in count 7 pertains to the failure of the school to have the required number of thermal, heat caps or steamers, in violation of Rule 21F-2.07, Florida Administrative Code. There was no testimony offered to demonstrate a lack of those items of equipment; therefore there has been no violation shown of Rule 21F-2.07, Florida Administrative Code. Count 7 contained a provision which claimed that there was no separate junior and senior departments in violation of Rules 21F-2.23, 21F-2.24 and 21F- 2.25, Florida Administrative Code. None of these provisions of the Florida Administrative Code pertain to the question of the requirement of separating junior and senior departments; nonetheless, the testimony reveals that the classes were divided into freshmen, junior and senior, with the freshmen being those students who had not obtained their necessary 200 hours which is a prerequisite to practicing on customers who are not members of the class or members of their immediate family. Count 7 contains an additional allegation that there were insufficient numbers of shampoo bowls and manicure bowls in violation of Rule 21F-2.08, Florida Administrative Code. The testimony showed that there were eight shampoo bowls and six manicure tables and thereby were in compliance with the provisions of the Florida Administrative Code. Finally, there was insufficient proof to establish the failure to post inspection rating sheets as allegedly required by Rule 21F-2.07, Florida Administrative Code. It should also be noted that Rule 21F-2.07, does not pertain to the requirement for posting of inspection rating sheets. In summary, there have been no violations of Sections 477.08; 477.15(7), (8) and (9), and 477.27(8) and (12), Florida Statutes, as alleged in count 7. Count 9 of the administrative complaint charged Florida Beauty College, Inc. and Henry Dixon with the failure to issue and post student permits and identification badges in spite of repeated warnings from the Board's inspector in violation of Rule 21F-2.07(4), Rule 21F-2.25 and Rule 21F-2.28, Florida Administrative Code. This was felt to constitute a violation of Sections 477.08, 477.15(7), (8) and (9) and 477.27(8) and (12), Florida Statutes. The facts in this cause demonstrate that in spite of an initial warning to the Respondents, a second inspection revealed that student permits were not posted on the second visit as required by Rule 21F-2.25, Florida Administrative Code. No other violation as alleged in count 9 is shown. Count 10 of the administrative complaint charged that between September, 1976 and February, 1977 students were allowed unfettered on the public, and that the Respondents misrepresented the amount of hours certain students had to members of the public and in addition posted on the bulletin board for the public to discern, the names of certain students whom were favored by the Respondent; in violation of Rules 21F-2.23, 21F-2.24, 21F-2.25, 21F-2.28 and 21F-2.17(b), Florida Administrative Code, thereby violating Sections 477.08, 477.15(7), (8) and (9), 477.27(8) and (12), Florida Statutes. Certain testimony was offered by Ms. Geiger to the effect that students were allowed to work on the public who had less than 200 hours. In view of the opinion of the undersigned of the creditability of the witness Geiger, that testimony is rejected and no other showing was made to establish that students were allowed to administer to the needs of the public when those students were not duly qualified. There was no testimony to show that the names of students were posted on bulletin boards for the public to discern, thereby creating a favorable impression to the public about those certain students. Therefore there has been no showing of any violation of the Florida Administrative Code or Florida Statutes as set forth in count 10.
Recommendation For the violations as established against Florida Beauty College, Inc. license no. 043 and Henry Dixon, licensed instructor, license no. 22909, it is recommended that these Respondents be suspended for a period of two weeks. (This suspension recommendation would only pertain to the Florida Beauty College, Inc., license No. 043, if the Florida Beauty College, Inc. is still in operation at the time of the entry of the final order of the Petitioner). DONE AND ENTERED this 10th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel J. Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Michael Seelie, Esquire Suite 1103, Blackstone Building East Bay and Market Streets Jacksonville, Florida 32202
