Findings Of Fact 9. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on June 18, 2010, the Amended Order of Penalty Assessment issued on July 8, 2010, and the 2nd Amended Order of Penalty Assessment issued on September 30, 2010, attached as “Exhibit A”, “Exhibit B”, and “Exhibit D”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the request for administrative hearing received from FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING, the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2nd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On June 18, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-189-D1 to FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On June 19, 2010, the Stop-Work Order and Order of Penalty Assessment was served on FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING by certified mail. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On July 8, 2010, the Department issued an Amended Order of Penalty Assessment to FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING. The Amended Order of Penalty Assessment assessed a total penalty of $11,801.36 against FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING. The Amended Order of Penalty Assessment included a Notice of Rights wherein FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On August’ 16, 2010, the Amended Order of Penalty Assessment was filed with the Division of Administrative Hearings. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On August 2, 2010, FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING filed a petition for administrative review (“Petition”) with the Department, which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-7525. A copy of the Petition is attached hereto as “Exhibit C”. 6. On October 4, 2010, the Department filed with the Division of Administrative Hearings a Motion to Amend Order of Penalty Assessment with an attached 2nd Amended Order of Penalty Assessment. The 2nd Amended Order of Penalty Assessment reduced the penalty assessed against FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING to $1,000.00. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 7. On October 7, 2010, FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING informed the Department that FABIANO SILVA D/B/A GARDEN DREAMS LANDSCAPING did not wish to proceed to an administrative hearing in DOAH Case No. 10-7525. 8. On October 7, 2010, the Department filed a Joint Motion to Relinquish Jurisdiction with the Division of Administrative Hearings. As a result, Administrative Law Judge Barbara J. Staros entered an Order Closing File, relinquishing jurisdiction of this matter to the Department. A copy of the Order Closing File is attached hereto as “Exhibit E”.
The Issue The issues in this case are whether the Respondent, Robert Dugger, committed the violations alleged in an Amended Administrative Complaint, DPBR Case Number 2002-007094, filed by the Petitioner Department of Business and Professional Regulation on April 11, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with regulating the practice of community association management pursuant to Chapters 455 and 468, Florida Statutes. (Stipulated Fact). Robert Dugger, is and was at the times material to this proceeding a licensed Florida Community Association Manager (hereinafter referred to as a “CAM”), having been issued license number CAM 1148. (Stipulated Fact). At the times material to this proceeding, Mr. Dugger’s address of record was 7401 Beach View Drive, North Bay Village, Florida 33141. Miramar Gardens. At the times material to this proceeding, Mr. Dugger was employed by Timberlake Group, Inc. (hereinafter referred to as “Timberlake”). In his capacity with Timberlake, Mr. Dugger served as the CAM for 30 homeowners’ associations. In particular, Mr. Dugger served as the CAM for Miramar Gardens Townhouse Homeowners’ Association, Inc. (hereinafter referred to as the “Association”). (Stipulated Fact). The Association is made up of approximately 350 homeowner members. The Association was initially created by the Miramar Gardens Townhouse Homeowners Association, Inc., Declaration of Covenants, Conditions and Restrictions adopted on or about December 16, 1975. By-Laws for the Association were also adopted on December 16, 1975. Article X of the By-Laws provides the following homeowners’ rights concerning the books and records of the Association: The books, records and papers of the Association shall at all times, during reasonable business hours, be subject to inspection by any Member. The Declaration, the Articles and these By-Laws shall be available for inspection by any Member at the principal office of the Association, where copies may be purchased at reasonable cost. Prior to 2001, the Association, along with Vista Verde Townhome Homeowners Association (hereinafter referred to as “Vista Verde”), an adjacent community association, had been placed in receivership and was managed by a civilian board. These events came about due to the dismal state the two communities were in. Crime was rampant, there were no street signs or lights, common areas and alleys were unkempt, there were abandoned vehicles, and the associations for both areas were essentially non-existent. Miami-Dade County had taken over ownership of many homes in the community by foreclosure. Mr. Dugger became involved early with the reorganization and revitalization of the Association and Vista Verde. In 1997, Mr. Dugger was appointed by the receiver as the CAM for the Association and Vista Verde. At the end of 2000, the Association was ready to govern itself. Toward that end, on or about December 21, 2000, the Association and Timberlake, entered into a Management Agreement (hereinafter referred to as the “Management Agreement”). Pursuant to the Management Agreement, Timberlake was designated as the “Exclusive Managing Agent” for the Association commencing January 1, 2001. Among the duties assumed by Timberlake, are the following: 2) MAINTENANCE OF ASSOCIATION FILES: The Manager will collect, organize and maintain in the office of the Manager, all Association information, including but not limited to the Articles of Incorporation, By-Laws, Declaration of, [sic] Covenants, Conditions and Restrictions, site plans, owner lists, correspondence, rules and regulations, blue prints, specifications, corporate minutes, all maintenance and service contracts in effect and the necessary administrative financial information related to the Association. 8) ASSISTANCE TO THE BOARD OF DIRECTORS: The Manager will provide administrative support services to the Board of Directors, to include notifying Directors of Board meetings, circulating minutes of the preceding meeting, as prepared by the Secretary . . . . Timberlake has continued to provide the services of Mr. Dugger as CAM since 2001. During his tenure, street signs and lights have been installed, the common areas have been cleared, and the community has greatly improved. Proposed findings of fact 14 through 19 of Mr. Dugger’s Proposed Recommended Order generally describe Mr. Dugger’s efforts as CAM, the improvement of the community, and Mr. Dugger’s reputation as CAM. Count I: Criminal Violations. During 2003, Mr. Dugger served as a city commissioner for the City of North Bay Village, Florida (hereinafter referred to as the “Village”). On or about December 12, 2003, Mr. Dugger was charged with eight criminal violations in an Information issued in case number F03-33076, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. The alleged violations arose out of Mr. Dugger’s activities as a city commissioner for the Village. Two of the criminal charges, Counts 2 and 8, are of pertinence to this matter: (a) Count 2 alleges a violation of Section 2-11.1(d), Miami-Dade County Code, and Section 125.69, Florida Statutes; and (b) Count 8 alleges a violation of Section 2-11.1(i), Miami-Dade County Code, and Section 125.69, Florida Statutes. As to Count 2 of the Information, it was more specifically alleged, in pertinent part, as follows: . . . ROBERT A. DUGGER SR., on or about April 08, 2003, in the County and State aforesaid, being a member of THE NORTH BAY VILLAGE COMMISSION, in Miami-Dade County, did vote on a matter presented to said COMMISSION, to wit: ITEM 7A, AN ORDINANCE AMENDING SECTION 152.029 OF THE NORTH BAY VILLAGE CODE OF ORDINANCES (FIRST READING), when said defendant would or might, directly or indirectly, profit or be enhanced by this action of said COMMISSION on said matter, in violation of Miami-Dade County Code s.2.11.1(d) and s. 125.69, Fla. Stat. . . . As to Count 8 of the Information, it was more specifically alleged, in pertinent part, as follows: . . . ROBERT A. DUGGER SR., on or about July 01, 2003, in the County and State aforesaid, being a MUNICIAL OFFICAL to wit: MEMBER OF THE NORTH BAY VILLAGE COMMISSION, in Miami-Dade County, did fail to comply with the financial disclosure requirements of Chapter 112 (Part III) of the Florida Statutes by failing to DISCLOSE ALL LIABILITIES IN PART E. OF FORM 1 STATEMENT OF FINANCIAL INTERESTS FOR 2002, filed with the City Clerk of THE CITY OF NORTH BAY VILLAGE, in violation of Miami-Dade County Code s. 2-11.1(i) and s. 125.69, Fla. Stat. . . . Counts 2 and 8 were based upon the following allegations of the Complaint/Arrest Affidavit: Robert A. Dugger was elected Village Commissioner for the City of North Bay Village on November 19, 2002. On September 21, 2002, Mr. Robert Dugger filed his Statement of Financial Interest for the calendar year 2001, as required by Miami- Dade County ordinance. In Part E of the Statement of Financial Interest (this section is designated for Liabilities – major debts-and asks for the name and address of creditor), Mr. Dugger marked N/A in this section. Commissioner Robert Dugger has substantial indebtedness to Al Coletta that was incurred when Al Coletta assumed the mortgage on one of Dugger’s properties and paid off the mortgage on another. Rachael Dugger admitted these debts under oath during her sworn statement. Commissioner Dugger failed to report these debts on his Statement of Financial Interest. Additionally, on March 15, 2001, a Summary Final Judgement of Foreclosure was ordered and adjudged on behalf International Financial Bank, against Tomin Incorporated, and Robert Dugger and Rachael Dugger personally, in the amount of $1,154,427.50. Following the Judgement on March 15, 2001, title of the property in question was acquire by International Finance Bank on Mary [sic] 2, 2001 and sold to a third party on June 1, 2001. The sale amount of the property was $750,000. A short fall of $404,427.50 remained after the sale and is still unpaid. Commissioner Dugger also failed to report this debt on his Statement of Financial Interest for the year 2001. . . . . Based on Commissioner Robert Dugger’s indebtedness to Al Coletta, he had a Conflict of Interest by voting on matters involving Al Coletta, that came before the North Bay Village Commission, each vote is a separate violation of the Miami-Dade Code, Section 2-11.1(d), a second [degree] misdemeanor. Commissioner Dugger violated the aforementioned Section 2-11.1(d), of the Miami-Dade Code on the following occasions: April 8, 2002, Item 7A, Page 7 of the Regular City Commission Meeting Minutes: A zoning amendment concerning property owned by Al Coletta. Page 14 of the Regular City Commission Meeting Minutes, Commissioner Dugger voted – yes, for approval of the ordinance. . . . . . . . . This action is in violation of Miami-Dade Code, Section 2-11.1(d), a second-degree misdemeanor . . . . Additionally, Commissioner Dugger is in violation of Section 2-11.1(i)(3), Miami- Dade County Conflict of Interest and Code of Ethics Ordinance. This Section required that candidates for County and municipal office must comply with the filing requirements, under Chapter 112, Florida State Statutes. This is a second-degree misdemeanor. . . . Section 2-11.1(d) of the Miami-Dade County Code, prohibits, in pertinent part, the following: Additionally, no person included in the term defined in subsection (b)(1) shall vote on or participate in any way in any matter presented to the Board of County Commissioners if said person has any of the following relationships with any of the persons or entities which would be or might be directly or indirectly affected by any action of the Board of County Commissioners: (i) officer, director, partner, of counsel, consultant, employee, fiduciary or beneficiary; or (ii) stockholder, bondholder, debtor, or creditor, if in any instance the transaction or matter would affect the person defined in subsection (b)(a) in a manner distinct from the manner in which it would affect the public generally. . . . Section 2-11.1(i)(3), of the Miami-Dade County Code, requires that candidates for County and municipal elective office meet the filing requirements of Chapter 112, Part III, Florida Statutes, “at the same time that candidate files qualifying papers.” Section 125.69, Florida Statutes, which provides procedures for the prosecution of county ordinances, states that they are to be prosecuted “in the same manner as misdemeanors are prosecuted.” On July 29, 2005, Mr. Dugger entered a plea of nolo contendere to Counts 2 and 8 of the Information, in case number F03-33076, both second-degree misdemeanor violations of Section 2-11.1 of the Miami-Dade County Code, and Section 125.69, Florida Statutes. (Stipulation of Fact). Mr. Dugger was adjudicated guilty of the violations alleged in Counts 2 and 8, and was ordered to pay $468.00 in fines and costs. Mr. Dugger was, therefore, adjudicated guilty of having voted on a matter in which he had a conflict of interest because the matter involved an individual to whom he was indebted; and of having failed to fully disclose liabilities on financial disclosure forms he was required to file pursuant to Florida law at the time he qualified to run for public office. Neither of the convictions directly involved Mr. Dugger’s practice as a CAM. Nor has the Department made such an argument. Instead, the Department presented expert testimony in support of its position that at least one of the convictions relates to Mr. Dugger’s ability to practice as a CAM. That testimony was convincing. All CAMs are involved in a fiduciary relationship with the associations they manage. It takes little expert testimony to support a finding that such a fiduciary relationship requires trust and integrity. CAMs must be trusted to handle association money, maintain the records of the association, and to deal on behalf of the association with potential and existing vendors. The association must be able to assume that a CAM will fully disclose any possible conflict the CAM may have with the association’s vendors. Mr. Dugger is responsible for billing, writing checks, paying insurance premiums, and maintaining a payment book for the Association. Paragraph 10 of the Management Agreement specifically provides that Timberlake “shall provide financial management services to the Association . . . .” Paragraph D(11)(a) authorizes Timberlake to “solicit and analyze bids for necessary insurance coverage.” Mr. Dugger has similar responsibilities with Vista Verde. Clearly, the Association must be able to trust that Mr. Dugger will carry out all these duties without having any conflict of interest. The Association must be able to assume that Mr. Dugger is acting in its best interest and not his own. In his defense as to the voting of interest conflict charge, Mr. Dugger, prior to the pertinent vote, made disclosure of his relationship with Mr. Coletta, the owner of the property which was the subject of the vote, to the attorney for the City of the Village. The Department failed to prove that Mr. Dugger did not make full disclosure. Mr. Dugger was advised that no conflict existed. Mr. Dugger cast his vote after receiving this advice. Subsequent to the vote, Mr. Dugger sought an opinion from the Miami-Dade County Commission on Ethics & Public Trust (hereinafter referred to as the “Commission”). The Commission, like the city attorney, opined in writing that no conflict of interest existed. Mr. Dugger entered his plea on the two charges in order to avoid the cost of litigation. The evidence, however, failed to prove why prosecutors agreed to accept a plea on only two of the eight counts. Count IV: Alleged Denial of Access to the Records of the Association. During 2003, Miryam Ruiz lived in Miramar Gardens Township and was a member of the Association. While she had been in arrears for 2001 and 2002, presumably in her association dues, she became current when she paid all outstanding dues in March 2003. On March 14, 2003, during normal business hours, Ms. Ruiz went to the office of Timberlake and requested that she be allowed to inspect certain records of the Association. She made her request verbally and in writing, leaving Petitioner’s Exhibit 13 with a Timberlake employee, apparently the receptionist, which listed the documents she wanted to inspect. She was told by the receptionist that she could not see the documents until she had made an appointment to do so. By letter dated Thursday, March 27, 2003, Ms. Ruiz was informed by Mr. Dugger’s wife, Rachel, that Ms. Ruiz could review the documents. She was also told that, “[i]f you would like, call us to make an appointment at your convenience.” On the morning of Monday, March 31, 2003, not having received Ms. Dugger’s March 27th letter, Ms. Ruiz sent a letter by facsimile to Timberlake stating that she would be at the office at 11:00 a.m. that morning to “pick up” the documents. When Ms. Ruiz arrived at the Timberlake office at 11:00 a.m. she was again told that she could not review the documents because she had no appointment. Ms. Ruiz left the office. Later that day, Ms. Ruiz sent a second facsimile letter addressed to Ms. Dugger. Ms. Ruiz ended the letter by informing Ms. Dugger that she would be at the office the next day, April 1, 2003, “for the inspection and copying of records at 9:30 a.m.” On April 1, 2003, Ms. Ruiz returned to the Timberlake office and was again told that the records were not available because no appointment had been made. Ms. Ruiz told the receptionist that she would return on Friday, April 4, 2003, at 9:30 a.m. to inspect the documents. In a letter to Ms. Dugger dated April 1, 2003, she stated that she was confirming the date and time. The evidence failed to prove whether the letter was received prior to April 4, 2003. When Ms. Ruiz arrived at the Timberlake office on April 4, 2003, she was again denied access to the documents and was told by Ms. Dugger that she had no appointment because the date and time suggested by Ms. Ruiz had not been confirmed by Timberlake. Ms. Ruiz left the office. The following day, April 5, 2003, Ms. Ruiz sent a letter by certified mail addressed to Mr. Dugger describing the events leading up to that moment and asking what it would take for her to be allowed to inspect the records. Mr. Dugger did not respond to this letter. In response to Ms. Ruiz’ April 5th letter, a letter dated April 22, 2003, was sent by Ms. Dugger. That letter indicated that the records would be available for inspection at 1:00 p.m. on Tuesday, May 6, 2003. The letter, which was postmarked May 2, 2003, ten days after the date of the letter, was not received by Ms. Ruiz prior to May 6th. Sometime during the month of May 2003, approximately two months after first attempting to review the records of the Association, Ms. Ruiz was finally allowed to inspect the records. Ms. Ruiz, without doubt, had the right to review the records of the Association she had requested. Pursuant to the Management Agreement, Mr. Dugger was required to collect, organize and maintain the records of the Association. The Management Agreement also required that Mr. Dugger was to assist the Board of Directors in their enforcement of the provisions of the “Association documents and rules and regulations ” Pursuant to Article X of the By-Laws of the Association, also quoted, supra, gives Association members the right to inspect and copy all Association documents The right to inspect association documents is not an unfettered one. In light of the duty and responsibility of a CAM to “maintain” records, it is not unreasonable for a CAM to set reasonable safeguards for a member’s review of those records. The Department did not produce evidence to refute the evidence presented by Mr. Dugger concerning the reasonableness of a CAM insisting on being present during the inspection of documents. The evidence also failed to prove that, given the fact that Mr. Dugger is the CAM for as many as 30 associations, he is not always available at his office to supervise a review of documents. The procedure followed with regard to reviews of the Association’s had been announced at an Association meeting. Members were told that anyone who wished to review records could contact the Timberlake office and make an appointment so Mr. Dugger could be present during an inspection, or that a copy of a document could be obtained upon payment for the document. It is clear that not all of the requests to Timberlake made by Ms. Ruiz were totally reasonable: (a) her first request on April 14, 2003, was without any notice; (b) her notice of March 31, 2003, gave only three hours notice; (c) her request for review on April 1, 2003, gave only one day notice; and (d) her request for review on April 4, 2003, gave only 3 days notice. While Ms. Ruiz eventually was allowed to review the documents, it took approximately two months after her initial request had been made. It is also clear that, although she did not always give reasonable notice for appointments she announced, Mr. Dugger (and his employees) could and should have done more to remedy the situation. Mr. Dugger first became aware of the request on March 14, 2003. It took 13 days to respond to that request. When Ms. Ruiz mailed a certified letter to Mr. Dugger dated April 5, 2003, it was not until May 2, almost a month later that a letter in response to that letter was post-marked. Based upon the foregoing, while neither Ms. Ruiz nor Mr. Dugger did much to ameliorate the situation, for at least part of the two months it took Ms. Ruiz to obtain access to the records of the Association, Mr. Dugger “denied” Ms. Ruiz access to the records of the Association. Count VI: Alleged Failure to Maintain Association Records. Pursuant to the Management Agreement entered into by Mr. Dugger with Miramar Gardens, at paragraph D(2), quoted, supra, Mr. Dugger agreed to collect, organize, and maintain all Association documents in the offices of Timberlake. Beginning in 2001, the minutes of meetings of the Association (held jointly with the meeting of Vista Verde) were usually taken by Claudette Brinson, president of the Association. On occasions, they were taken by others. Minutes taken by Ms. Brinson were written by hand and, after the meeting, were taken home with her. On some occasions, Ms. Brinson would ensure that her hand-written minutes were typed at various locations, including Mr. Dugger’s office. When typed at Mr. Dugger’s office, a copy was retained by Mr. Dugger and maintained with the records of the Association. Ms. Brinson’s testimony at hearing as to whether Mr. Dugger was given a copy of all minutes was in conflict. She initially testified that she had provided him with a copy of all minutes. When recalled by Mr. Dugger, she testified that on some occasions, when she did not have the minutes typed at Mr. Dugger’s office, while maintaining a copy at her home, she did not always provide him with a copy. While the latter testimony was more convincing and has been credited, the bottom line is that Mr. Dugger did not maintain a copy of the minutes from all meetings of the Association. At hearing, Mr. Dugger admitted that when he was served an Investigative Subpoena Duces Tecum issued by the Department on or about August 30, 2004, he realized that he did not have all the records the subpoena sought. In particular, Mr. Dugger did not have all of the documents requested in item number 5 of the subpoena: “[t]he minutes of all meetings of the board of directors and of the members of Miramar Gardens Townhouse Homeowners Association, Inc.” Mr. Dugger, therefore, contacted Ms. Brinson and asked her if she could provide a copy of the minutes of Association meetings that he did not have. She was not able to do so within the time Mr. Dugger had to respond to the subpoena. In a letter to the Department dated September 17, 2004, Mr. Dugger indicted the following with regard to the minutes requested in item number 5 of the subpoena: “The Minutes in our possession. Original minute meetings are in the hands of the Receiver, which were retained for his records. Some additional minutes are in the hands of Board members, which we will attempt to locate.” During calendar year 2002, minutes had been kept for meetings held during February, March, April, May, June, July, October, and December. During calendar year 2003, minutes had been kept for meetings held during January, February, March, May, June, July, August, September, October, and November. Finally, during calendar year 2004, minutes were kept for meetings held in January, February, March, April, July, August and September. Mr. Dugger at the time of responding to the Department’s subpoena did not have minutes for all of these meetings. For example, for 2002 he only had minutes for the meetings held in February, March, and June, and for 2003, he only had minutes for the meetings held in January and December. While Ms. Brinson adequately explained why she was not always able to provide a copy of meeting minutes to Mr. Dugger, Mr. Dugger did not provide an adequate explanation as to why he had not made sure that he obtained a copy of all minutes so that he could fulfill his obligation under the Management Agreement. No evidence was presented to suggest that Mr. Dugger’s failure to maintain all minutes was the result of bad faith or any intent on the part of Mr. Dugger to circumvent the rules of the Department or the requirements of the Management Agreement. Prior Discipline Against Mr. Dugger’s CAM License. Mr. Dugger’s CAM license was disciplined in DBPR Case Number 00-02226, pursuant to a Stipulation entered into by the Department and Mr. Dugger which was accepted by Final Order entered on April 9, 2001. The Stipulation provides that Mr. Dugger “neither admits or denies the . . . facts alleged in the Administrative Complaint ”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Mr. Dugger committed the violations described in this Recommended Order and imposing the following penalties: A stayed suspension of his license for six months, with the stay being lifted should Mr. Dugger be found to have committed any additional violation with regard to his CAM license within two years of the issuance of the final order in this case; An administrative fine in the amount of $1,500.00; Attendance at continuing education classes in records maintenance in an amount to be determined by the Department; and Payment of the costs of this matter. DONE AND ENTERED this 22nd day of January, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 22nd day of January, 2009. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Philip F. Monte, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 E. Gary Early, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Tallahassee, Florida 32308 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent materially breached a contract with Petitioner, South Florida Water Management District (District), as alleged in the District's Final Order dated November 10, 2005, and if so, whether Respondent should be placed on the temporarily suspended list for a period of one year.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Respondent is engaged in the business of exotic vegetation control. The firm's office is located in Loxahatchee, Florida, and its principals are Dr. Howard E. Westerdahl, president and majority owner (52 percent), and Christopher P. Bless, minority owner (48 percent). The business has been in existence for around ten years, operating first under the name of Enviroglades, Inc. and then Enviroglades, LLC. When this matter first began before the District in 2004, the firm's majority stockholder was Irene Goltzene, who now serves as its office manager, and the firm was classified as a District Non-Certified Minority Business Enterprise. In April 2005, the business was sold to its current majority shareholder, Dr. Westerdahl, and on May 15, 2005, Enviroglades, LLC, changed its name to Eco-Engineering, LLC. The District is a public corporation created under Chapter 373, Florida Statutes. Its Vegetation Management Division is responsible for administering its exotic vegetation control program. On May 28, 2004, the District issued Request for Proposal OT040866 (RFP) soliciting "technical and cost proposals from qualified respondents to provide crews, equipment, and supplies for ground based control of exotic plant species via the application of herbicides and the hand removal of small seedlings using licensed applicators and laborers." The RFP called for responses to be submitted no later than June 25, 2004. Three companies, including Respondent, then known as Enviroglades, LLC, timely submitted proposals. On September 23, 2004, the District conducted a negotiation meeting with Respondent. During that meeting, Francois B. LaRoche and Donald Hill, both employees in the Vegetation Management Division, discussed items on a prepared Agenda concerning the RFP, including the type of contract, contract execution, cost proposal, invoicing, statement of work, and general questions. Also, Mr. Hill negotiated labor rates to be charged for Respondent's labor and supervisory positions. On October 14, 2004, the District awarded a contract (Contract) to Respondent and the other two companies who submitted proposals. The Contract with Respondent is a three- year "work order contract," that together with the other two contracts awarded was not to exceed the total project funding of $18 million. A work order contract and the work orders issued pursuant to the contract are based on time and materials, which obligates the District to pay the contractor for labor and chemicals when the invoices are submitted to the District up to the "not to exceed" amount in the work order. Under this process, Respondent would invoice the District for the actual cost of materials, such as herbicides, and for labor according to the negotiated rate schedule attached to the Contract as Exhibit L. Reimbursement under the work order, however, could not exceed $50,000.00. Paragraph 1 of the Contract's Special Provisions, found in Exhibit A of the Contract, provides as follows: . . . The DISTRICT does not guarantee or represent that any minimum number of Work Orders for any dollar amount will be issued as a result of this CONTRACT. Multiple contracts have been awarded for ground application services for exotic plant control, stated on the cover page as the Project Title, to be provided under this CONTRACT. The DISTRICT does not guarantee or represent that any minimum number of Work Orders for any dollar amount will be issued as a result of this CONTRACT. The amount stated on page one of this CONTRACT represents funding that may be used among the multiple CONTRACTS awarded by the DISTRICT'S Governing Board and in no way represents the amount to be paid under any single CONTRACT issued herein. This language meant that the District does not guarantee that any contractor will receive any minimum number of work orders or be issued more than one work order to complete a job. On November 2, 2004, the District conducted a second meeting, identified as a Contractor Review Meeting, which was attended by all contractors, including representatives of Respondent. At the meeting, the District discussed the following topics: statement of work, applicator safety and training, herbicide mixing, loading, and on-site storage of BMP's, new daily activity report, inspection, billing, anticipated Fiscal Year 2005 projects, questions and discussions, and facility and equipment inspection. On November 24, 2004, the District issued several work orders to Respondent for execution under the Contract. Under the District's customary practice, in order for the District to encumber the funds for the current budget year, the work orders were executed in advance of Respondent starting the work under each work order. One of the work orders issued by the District to Respondent was Work Order No. 01 for $50,000.00 to "treat exotics on SandHill Crane Property" (SandHill). This property encompasses approximately 1,400 acres, is located in Central Western Palm Beach County (west of the City of Riviera Beach), and is bordered by the Beeline Expressway on the south side, the District's C-18 Canal on the north side, an unnamed canal that dumps into C-18 on the west side, and a fence that separates the property from a development on the east side. Although Work Order No. 01 stated, without greater specificity, that the contractor was to "treat exotics on the SandHill Crane property," the District intended for the work order to cover all targeted vegetation on the entire site, and not just certain exotics or portions of the property. This was consistent with the type of work that had been performed on the same property for the two prior years (2003 and 2004) by other contractors. The District also intended that under Work Order No. 01, the $50,000.00 represented a ceiling, and Respondent could be reimbursed up to, but not in excess of, that amount. The Work Order called for the work to begin on November 22, 2004, and to be completed no later than March 31, 2005. It can be inferred from the evidence that the purpose of the March 31, 2005, completion date was to ensure that the work would be completed before the rainy season began a few months later. In determining the ceiling of a work order, and whether the value of the work order will afford sufficient labor and materials for the job, the District, through its Vegetation and Management Division staff, considers at least two factors. First, Mr. LaRoche, who is Senior Supervising Scientist in the Vegetation and Management Division, and/or his staff, makes a visit to the site to assess the extent of work to be performed. While on the site, the staff engages in discussions with the property's land manager to better ascertain the scope of the work. Also, Mr. LaRoche considers whether the property is being treated for the first time, or whether only follow-up treatment is required. In this case, Mr. LaRoche knew that the initial clearing of the exotics on the site had been done in 2003 (by another contractor) for $110,000.00 (consisting of two work orders - one for $50,000.00 and a second for $60,000.00), while a second contractor was paid $75,000.00 to maintain the site in 2004. (Prior to 2003, treatment of vegetation had been performed by mechanical removal, and not with herbicides.) Therefore, because the property had already been treated twice, and only follow-up work was required, he concluded that in 2005 it could be completed for a lesser amount, or $50,000.00. Finally, Mr. LaRoche described SandHill as "a very small property" (apparently in comparison to other sites) on which "a lot of work" had already been performed, "a very easy site," and one with "fairly clear boundaries." The Work Order itself did not contain a map or any information regarding the size of the property, the level of infestation of exotic species, the difficulty in performing the work, or ease of access to the property. Even so, Respondent's representative accepted the Work Order by affixing his signature to the document on November 24, 2004. In addition, Respondent's proposal in response to the RFP contained the following language: The office will receive a work order from SFWMD. The project manager will then schedule a meeting with the SFWMD project supervisor at the site where work is to be performed. When meeting with the SFWMD on site Enviroglades will obtain all necessary information, maps, target species, methodology, type and rate of chemical to be used to perform the work specified in the work order. Enviroglades project manager will then relay all information to the crew leader making sure all aspects of the work order are understood. The crew will then be scheduled to perform the work. The project manager and crew leader will be in contact daily while the work is performed. Daily reports will be turned into the office and reviewed by the project manager. The daily reports will then be processed for invoicing to SFWMD. Enviroglades uses Microsoft Projects to track work orders and all pertaining information. By including this language in its proposal, Respondent understood and agreed that if it needed maps or any additional information to understand the nature or scope of the work to be performed under the work order, that it was required to ask the District for that information. It also understood that before the actual work began, its project supervisor would visit the SandHill site with a District representative to better understand the scope of the work. While Section 1.5 of the Contract provided that "[t]he District shall provide additional guidance and instructions to Contractors' employees or hired workers where necessary or appropriate as determined by the District," this did not mean that the District would micromanage the job or provide continual guidance and assistance to a contractor while the work was being performed. In its proposal, Respondent also indicated that it had experienced no problems performing work for the District under other contracts. (Respondent had performed work for the District under at least one other contract in prior years.) More specifically, it stated in its proposal that "while working on a similar contract several years ago Enviroglades was able to handle all project tracking responsibilities set forth by the SFWMD." Before Respondent began any work, on January 18, 2005, the District project manager, David K. Johnson, a District Environmental Scientist in the Vegetation Management Division, met with Respondent's representative, Shaun E. Bless, at the SandHill site. In preparation for the site visit, Mr. Bless acknowledges that he did not read the contract or the Work Order. (Shaun Bless' supervisor, Christopher P. Bless, his older brother, minority owner of the firm, and listed as project manager, also admitted that he only "briefly looked through [the contract].") Mr. Johnson testified that during the site visit, he drove Mr. Bless around the perimeter of the property, described what exotics needed to be treated, and explained the methodology for treating those exotics. He also provided a small map of the property to Mr. Bless, which was admittedly not "very detailed." While on the site, Mr. Johnson and Mr. Bless met with SandHill's land manager, Bill Helfferich, who was familiar with the property and could answer any questions regarding its size or the type and extent of vegetation present on the property. At hearing, Mr. Bless denied that Mr. Johnson was able to provide a map, a list of exotics to be treated, or the actual size of the site. However, because his deposition testimony directly conflicts with his testimony at hearing in several material respects, Mr. Bless' assertions have not been accepted as being credible. For example, at his deposition, Mr. Bless acknowledged that he knew he was supposed to treat Australian Pine, Melaleuca, Lygodium, Acacia, and Brazilian Pepper. He also stated that he understood what the boundaries of the site were and that Respondent had to treat all exotics, identified above, within the boundaries. There is no evidence that, before the work began, any representative from Respondent ever asked for clarification of any provision in the Contract, a more specific description of the area to be treated, or whether $50,000.00 was sufficient to complete the work. An assertion by Mr. Bless that he asked Mr. Johnson on January 18, 2005, whether there were additional funds (over and above the $50,000.00) to do the work is not deemed to be credible. Mr. Johnson denied that he was asked this question, and no other employee of Respondent expressed this concern to the District. Under Section 4.5 of Exhibit C of the Contract, the District spelled out detailed procedures for the treatment of exotic vegetation. Specifically, Subsection 4.5.3 provided that "[e]xotic vegetation to be treated includes, but is not limited to, melaleuca, Brazilian pepper, Australian pine, Java plum, earleaf acacia, Old World climbing fern, and torpedograss." At the same time, Subsection 4.4.2 of Exhibit C of the Contract spelled out the following level of performance expected to be achieved by the contractor: Minimum acceptable performance is defined as 90% control of targeted vegetation within the timeframe of the manufacturers recommended period for control to occur. This meant that ninety percent of the targeted exotic vegetation (in this case everything identified by the District to be treated) "needs to be showing sign of death or dying once they are treated." Therefore, since specific vegetation on the entire SandHill site was targeted for treatment, at a minimum, it was expected that ninety percent of the targeted vegetation on the entire site "would be dead." Finally, Subsection 4.4.3 of Exhibit C of the Contract specified how Respondent had to remedy the situation if it performed poorly by not meeting the minimum performance standards. Specifically, that provision stated that: If minimum acceptable performance is not achieved for any area of the project within a reasonable time frame following project completion (time frame dependent upon species targeted, mode of action of treatment, site and weather conditions), additional thorough treatment of the target plant(s) shall be the responsibility of the CONTRACTOR at no cost to the District. Areas not treated or not responding to treatment may be required to be retreated at the CONTRACTOR'S expense, if it is determined that the CONTRACTOR provided faulty treatment measures or products. Vegetation treatments will be determined in terms of 'surface acres,' i.e., 43,560 square feet equal one surface acre. In short, this meant that if Respondent did not achieve the minimum acceptable performance for treating any area of the site, it was required to retreat that area at its own expense. Each of these provisions has been used in the District's contracts for many years. Until this case arose, the District represented without contradiction that no contractor had ever claimed to be "confused" by any of these requirements, particularly since there is a negotiation meeting, a contractor review meeting, and a site visit before any work begins. Respondent began work on the SandHill site around January 19, 2005. The District's project manager, Mr. Johnson, visited the site approximately two times per week to check on the progress. If he found a problem, he would prepare a written report, known as an Exotic Plant Treatment Inspection Report. Apparently, no significant problems were noted until the last week in February, when Mr. Johnson prepared two reports. See Finding of Fact 25, infra. However, before those reports were prepared, Mr. Johnson says there were several oral communications to one of the supervisors and the office manager, Irene Goltzene, concerning the proper equipment to be used and the number of employees that were performing the work. It is also worth noting that it takes two to three weeks after vegetation is treated to "figure out what's been killed, what's been treated." At a minimum, then, an evaluation of the quality of the work could not be made until several weeks after the work began. In late February 2005, Ms. Goltzene notified Mr. LaRoche (presumably by telephone) that Respondent had finished its work at the SandHill site, but that Respondent "would require more money to complete the property." By that time, the District had paid invoices totaling $49,300.00 to Respondent. After receiving this request, Mr. LaRoche requested a meeting with Respondent's representatives to discuss what he characterized as a lack of performance at the site and the District's expectation that the site would be retreated at Respondent's own expense. On February 28, 2005, the parties met to discuss the work being performed on the site. According to Mr. Johnson, the District discussed "the problems that we've had," "[s]howed them the pictures we took of both sites, the SDS site and the SandHill Crane site," and "show[ed] them the improper treatments done at both locations." (It can be inferred that Respondent was simultaneously performing work under another work order at "the SDS site.") Finally, the District advised Respondent that "they would have to retreat the SandHill Crane at their own expense." During the course of the meeting, Mr. Johnson documented two instances indicating that Respondent was doing a less than adequate job at the site. These deficiencies were noted in two Exotic Plant Treatment Inspection Reports, which are summarized below: On February 23, 2005, Mr. Johnson inspected the site and found one of Respondent's supervisors (Paul Eversley) asleep in his truck while the truck was running. This activity constituted a safety hazard since a running vehicle could possibly cause a fire. (District Exhibit 12) On February 25, 2005, or two days later, Mr. Johnson again inspected the site and found an "unsystematic treatment of the property and the poor treatment that was done of the property, specifically to Brazilian pepper, Lygodium and . . . melaleuca." Mr. Johnson concluded in his Exotic Plant Treatment Inspection Report that Respondent's treatment was "not a very systematic approach to treatments." (District Exhibit 13) In response to the concerns expressed at the meeting, on March 2, 2005, Ms. Goltzene sent an email to Mr. LaRoche advising that Mr. Eversley "was orally reprimanded and told he was never to sleep while at the job site, this included during lunch and break time. Also that he would not be able to perform work on any SFWMD job for a period of 2 months." (The email notes that a similar oral reprimand was given to Mr. Shaun Bless, who apparently was observed sleeping on another job.) The email did not respond in any manner to criticisms raised at the meeting concerning the "poor treatment" of the vegetation. On March 14, 2005, Daniel D. Thayer, Director of the Vegetation Management Division, received an email from SandHill's manager, Mr. Helfferich, who stated in part: I don't want Enviroglades setting foot on any SOR property again if I have anything to say about it. They did a shitty job and charged us $50k. Steve Smith told me Veg. Manage. was trying to get some answers from the contractor about why the work was so poor and spotty. . . . I would like to have the rest of the area really treated this time, but not by them. After reviewing the emails from Ms. Goltzene and Mr. Helfferich, on March 17, 2005, Mr. LaRoche sent a letter to Ms. Goltzene in which he stated that he did not agree that a verbal reprimand of Mr. Eversley (and Mr. Bless) was adequate; instead, he stated that a suspension from District work for six months was the appropriate remediation. In addition, Mr. LaRoche advised as follows: We have the impression that your company is not fully committed to working for the District. You request additional work orders but are reluctant to fully staff the existing projects to accomplish the work in a timely and efficacious manner. The immediate availability of properly working equipment for all projects must also be included in the commitment. Without this type of commitment we may not be able to continue the contractual arrangement with your company. The projects you have been involved in with the District have multiple partners within the agency and with other governmental agencies. The Vegetation Management Division and its contract partners must be responsive and responsible in its operational activities. A recent evaluation of the SandHill Crane project your company completed, which we are doing for the Land Stewardship Division, is not up to their or our standards. They have indicated to us that their preference is for your company not to be allowed to perform work on any of their properties. Please indicate to us how these issues will be resolved in thirty (30) days, according to Exhibit B, Article 6 - Termination/ Remediation (copy attached) and Exhibit A. Without resolution there will not be any further work orders. (Emphasis in original) No one from Respondent answered Mr. LaRoche's letter of March 17, 2005.1 Further, the SandHill site was not retreated. However, someone from Respondent's office requested a meeting with Mr. LaRoche's supervisor, Mr. Thayer. On April 1, 2005, the parties met and discussed "questions about SandHill Crane, and also what [the District was] going to do to help Enviroglades continue the work on the property." The parties also agreed to meet again on April 13, 2005, at the SandHill site. On April 12, 2005, or the day before the site meeting, Mr. Johnson took photographs which establish that there were misapplications of chemicals at the site as well as areas that were supposed to be treated and were not. These photographs have been received in evidence as District Composite Exhibit 19. On April 13, 2005, several District employees, including Mr. Thayer, met with Shaun and Christopher Bless on the site to "see what was done, what was treated, and determine - what they were going to do about SandHill Crane." On April 22, 2005, Mr. Thayer sent Ms. Goltzene a letter which summarized the results of the April 13 meeting. In his letter, Mr. Thayer stated in part as follows: The work was satisfactory in the areas where melaleuca was treated. However, the areas where Brazilian pepper was targeted (this was throughout the majority of the property) the work was poorly done. According to the contract (Exhibit "C", Section 4.4.2) between the District and Enviroglades, "minimum acceptable performance is defined as a 90% control of the target vegetation within the timeframe of the manufacturers recommended period for control to occur." This critical standard was not met by Enviroglades with the Brazilian pepper work. Therefore in accordance with the contract, Exhibit "C", Section 4.4.3 which states "If minimum acceptable performance is not achieved . . . additional thorough treatment of the target plant(s) shall be the responsibility of the contractor at no cost to the District . . .", the District is requesting that Enviroglades re-treat the Brazilian pepper throughout the entire property. The District will provide the herbicide and Enviroglades shall provide the labor at no further cost to the District. Please respond, in writing, no later than May 1, 2005. Your prompt attention to this matter is appreciated. By this time, Dr. Westerdahl had just purchased controlling interest in the business. (Whether he was fully aware of the problems which the former owners had created under Work Order No. 01 is unknown.) At hearing, Dr. Westerdahl produced an undated letter (District Exhibit 23), which he states was a response to Mr. Thayer's letter of April 22, 2005. Mr. Thayer denied ever receiving a copy, and the District has no record of such a letter being filed or date-stamped. In the letter, Dr. Westerdahl pointed out that a change in ownership had occurred, that he was now the "point person . . . for relations with the District," and that while he disagreed with the "assessment of the work product," Respondent agreed "to do the labor [to retreat the property if] SFWMD [would] supply the chemical." On April 29, 2005, Dr. Westerdahl sent a short email to Mr. Thayer in which he stated in part that the "[o]riginal is being sent in the mail. I would like to set up a meeting with you so you understand that this is important to us and we would like to have the opportunity to re-express our commitment to this[.]" He also asked that Mr. Thayer call him at his cell phone number, which was shown on the email. Dr. Westerdahl says he did not receive a return call from Mr. Thayer. By May 9, 2005, the SandHill property had still not been retreated. About the same time, Mr. LaRoche spoke with J. J. Flathmann, Deputy Director of Procurement, concerning the problems the District had encountered under the Contract. They reached a concensus that Respondent had breached the contract in a material respect. A "material breach" is defined as "any substantial unexcused nonperformance. The breach is either failing to perform an act that is an important part of the transaction or performing an act inconsistent with the terms and conditions of the contract." Fla. Admin. Code R. 40E-7.215(5). They concluded that by failing to meet the minimum performance standard in the Contract, Respondent had performed an act inconsistent with the terms and conditions of the contract. Ms. Flathmann then spoke with Frank Hayden, then Director of Procurement, who had the responsibility of issuing Cure Notices. A "cure notice" is defined in Florida Administrative Code Rule 40E-7.215(3) as follows: a letter citing the specific nature of the material breach, the corrective action required by the District and a thirty (30) day time frame for curing the breach, starting from receipt of the Cure Notice. The letter shall also state that if the contracting entity fails to cure the breach within the thirty (30) day period, the contracting entity will be found in default and may be placed on the District's Temporary or Permanent Suspension List. Mr. Hayden agreed with the assessment of Ms. Flathmann and Mr. LaRoche and directed Ms. Flathmann to prepare a Cure Notice and authorized her to sign it. On May 10, 2005, a Cure Notice was sent to Respondent indicating that the District considered Respondent's failure to comply with the District's vegetation control requirements a material breach of the terms and conditions of Contract No. OTO40866. The Cure Notice went on to say: Pursuant to Exhibit "C" of the contract, paragraph 4.4 you are required to achieve 90% control of targeted vegetation. On February 25, 2005, [sic] Enviroglades, LLC was issued a work order to treat exotic vegetation at the SandHill Crane Property. The completed work did not meet the acceptable performance as defined as 90% control of targeted vegetation. Accordingly, unless this material breach is corrected within thirty (30) days after receipt of this Cure Notice, the District shall terminate Contract No. OTO40866 for default pursuant to Article 6 titled Termination/Remedies of the contract, and shall initiate Governing Board action for determination of temporary or permanent suspension, if any. Please direct all questions concerning this matter to the undersigned . . . . Thus, the Cure Notice provided that all deficiencies must be cured no later than June 10, 2005. After Dr. Westerdahl received the Cure Notice on May 11, 2005, he immediately telephoned Mr. Thayer and reiterated that he desired to work with the District to resolve any outstanding issues. He also retained new counsel (John J. Fumero, Esquire) to assist in resolving the problem. (Enviroglades' counsel to the former owners had been terminated after sending a letter on May 4, 2005, to the District's Executive Director accusing the District of "favoritism, pettiness and discrimination" and other "unfair, illegal, [and] discriminatory" acts in administering the Contract, accusations which apparently did not sit well with the District.] On May 26, 2005, Respondent's new counsel sent a letter to Mr. Hayden advising that he now represented Respondent and confirming that a meeting with District staff was scheduled for May 31, 2005. Dr. Westerdahl stated that he had never received a Cure Notice before, and on advice of his new counsel, did not begin working on the SandHill site after receiving the Cure Notice. He was also told by counsel that the cure period of thirty days could be "stayed." On May 31, 2005, a meeting by District staff and Respondent's representatives took place. At the meeting, which Dr. Westerdahl described as being "a very accusatory meeting" accompanied by considerable "disagreement," the parties apparently agreed to allow Respondent to re-enter the site and complete any remaining work. This was confirmed in a letter from Mr. Fumero to District counsel on June 7, 2005. See District Exhibit 35. (It appears that much of the meeting addressed the accusations raised in the letter which Respondent's former counsel had sent to the Executive Director on May 4, 2005.) A written response to the May 10, 2005 Cure Notice was not sent by Respondent until June 2, 2005, or eight days before the deficiency was expected to be cured. In his letter to Mr. Hayden, Dr. Westerdahl stated in part that Respondent intended to complete the exotic plant treatment on the Sandhill Crane Property in the manner required and expected of the SFWMD staff. Our goal is to start the treatment program NLT [no later than] Monday, June 5, 2005. Arrangements have been made to meet with Mr. David Johnson, SFWMD, on Friday, June 3, 2005, to conduct a thorough site visit, obtain map(s), estimate treatment acreage, and identify herbicides required and quantities required." The letter also indicated that a treatment plan would be submitted to the staff by June 6, 2005. Dr. Westerdahl acknowledged that he prepared a treatment plan because he knew (as of June 2) that he would not be able to begin retreatment of the site until June 9 or 10 at the earliest (or when the time for curing the deficiency expired), even though his letter stated that work would begin no later than June 5. Finally, the letter outlined "some of the key changes that have been made specific to this contract as well as company policy." On June 3, 2005, the south and north areas of the SandHill site were reinspected by Mr. Johnson, who was accompanied by Dr. Westerdahl and Mr. Christopher Bless. (Due to the rainy season, which had now begun, other areas on the site were temporarily inaccessible.) In his Exotic Plant Inspection Treatment Report (District Exhibit 31), Mr. Johnson noted that the treatment of the Brazilian pepper was not "thorough," that the Lygodium in the south area "had not been treated at all," that there were "mis-applications" of chemicals to the north and west of a pasture area, and that hardwood species like Acacia "were not treated in the initial sweep." At the conclusion of the inspection, Mr. Johnson provided a treatment list for Dr. Westerdahl indicating the plant species to be treated, the treatment method, and the chemical to be used. See District Exhibit 32. Based on the information received at the June 3 meeting with Mr. Johnson, on June 6, 2005, Dr. Westerdahl advised Mr. Hayden by letter that there were two areas on the property which needed retreatment. The letter indicated that the first area would be treated on eight days between June 9 and June 20, 2005, while the second area would be treated on ten days between June 13 and 24, 2005. Finally, the letter listed the herbicides and chemicals that would be required for the retreatment. (The District had previously agreed to provide the chemicals if Respondent would provide the labor to complete the job. See Finding of Fact 33, supra.) On June 8, 2005, or more than two months after the Contract called for the work to be completed, Respondent's counsel advised Mr. Hayden by letter that Respondent's personnel misunderstood the terms and conditions of the Contract. Specifically, counsel stated that Respondent understood Subsection 4.4.2 of the Contract to call for "90% of the treated species rather than 90% of all the exotics on the property," and this was responsible for Respondent's "perceived nonperformance" under the Contract. (In other words, Respondent interpreted the provision to mean that whatever areas it was able to treat within the dollar amount of the work order, a ninety percent kill rate was expected; it did not interpret the provision to mean that at least ninety percent of all targeted exotic vegetation on the site must be killed.) The letter also noted that while the Cure Notice required Respondent to cure all deficiencies by June 10, 2005, Dr. Westerdahl's plan to correct the deficiencies "will require additional time to properly complete," and that "[s]ite work will resume on the site upon the District's authorization." By letter dated June 13, 2005, District counsel advised Mr. Fumero that "[d]ue to the unusually wet weather we have experienced, the District is willing to extend the cure notice by ten (10) working days starting on Tuesday, June 14, 2005." The letter also noted that "under no circumstances will the District allow the cure period to extend beyond June 30, 2005." (Emphasis supplied) The purpose of this language was to make it explicitly clear that no further extensions of the cure period would be granted. The letter further stated that Mr. Fumero's letter of June 8, 2005, was the first time the District learned that Respondent did not understand the terms of the Contract. Finally, the letter advised that Respondent should contact Mr. Hayden to make arrangements to visit the site. On June 16, 2005, Dr. Westerdahl, Christopher Bless, and a District Environmental Scientist, Gordon Baker, met on the SandHill site "to review policies and procedures for the retreatment of property in accordance with the Cure Notice." Dr. Westerdahl had a work crew present that day and intended for it to be supervised by Shaun Bless. However, because Mr. Bless had been suspended from all District work for six months (for sleeping while on duty), see Finding of Fact 28, supra, the work could not begin and was delayed until another supervisor could be found. Mr. Baker prepared a memorandum summarizing the meeting and pointed out that Mr. Johnson would meet with Respondent's representatives again the following day (June 17, 2005) at which time it would be emphasized that the entire property had to be "swept." See District Exhibit 38. Based on his inspection of the site and the amount of vegetation that needed to be retreated, on June 17, 2005, Mr. Baker signed a new work order which authorized Respondent to purchase herbicides in the amount of $15,000.00 (rather than $5,000.00) for the retreatment of the site. On June 17, 2005, Dr. Westerdahl prepared a memorandum to Mr. Baker concerning their meeting on the site the previous morning. He confirmed that he had been given a map which marked all areas to be retreated, that Mr. Shaun Bless and Mr. Eversley could not work on the property, and that work would commence the day after the meeting, or on June 17. On June 17, 2005, Mr. Johnson prepared an Exotic Plant Treatment Inspection Report for the two targeted species: Brazilian pepper and Lygodium. He noted that personnel were now working on the site treating the Brazilian pepper. On June 23, 2005, another Exotic Plant Treatment Inspection Report was prepared by Mr. Baker, who reported on the progress of the work to treat the Brazilian pepper. He noted that "at this rate they may not be able to complete the property. Called Howard [Westerdahl] to request additional crews. He said he planned to have additional crew tomorrow." Dr. Westerdahl submitted progress reports to Mr. Baker on June 24, 28, 29, and 30, 2005. See Respondent's Exhibit 4. In his June 28 report, he noted that afternoon rains were delaying the completion of the work. He also stated that out of ten targeted areas, Areas I, II, and V were completed or would be completed no later than June 27; that Areas III, VI, and VII should be completed by July 1; that areas VIII, IX, and X may not be finished until "early next week"; and that Areas III and IV may require "a little follow up spraying" the following two days. Accordingly, he requested "a few extra days to complete this work." In his final progress report submitted on June 30, 2005, Dr. Westerdahl stated that his crews worked all that day and "all B. peppers, melaleuca, and acacia in Area III will be treated by the end of Friday, July 1." He further stated that he anticipated "being finished with all open areas" by July 7; treatment of Brazilian peppers and acacia in Areas VI and VI would be completed by July 5; the "[r]emaining Lygodium in Areas III, VI, and VII will be treated starting again on Tuesday, July 5"; and "[t]he wooded areas (VIII, IX, and X) should be finished by Monday, July 11 or before, if weather permits." Finally, he stated that July 12 would "be used to survey and re- spray colonies that do not appear to be dying." Notwithstanding the District's earlier admonition that no further extensions of the cure period would be granted, on June 30, 2005, Respondent's counsel submitted a letter to District counsel requesting "an extension of time for the SandHill Crane project up to and including July 14, 2005." The letter noted that Respondent had lost "a couple of days due to rain," that access to the certain areas of the property was limited to marsh buggies due to the amount of rainfall, and that two new workers would not begin work until July 11, 2005. As of June 30, 2005, the work was not completed, and Respondent had failed to cure the breach within the time period specified by the Cure Notice. This was treated by the District as a default on the Contract under Florida Administrative Code Rule 40E-7.217. Under that rule, the District is required to issue a Termination for Default Notice by Certified U.S. Mail "[i]n the event that the contracting entity fails to cure the material breach within the time specified in the Cure Notice." In making this determination, Section 6-4 of the Contract requires in part that the District shall specify the reasons for taking this action, "which shall not be arbitrary or capricious." After discussions by Ms. Flathmann and Mr. Hayden, on July 1, 2005, the District, through Mr. Hayden, issued a Stop Work Order, which was provided to Respondent's counsel. (One of Respondent's work crews was also ordered off the site the same day.) The Stop Work Order constituted a termination of the Contract and provided in relevant part as follows: The South Florida Water Management District (District) hereby provides notice that your client has failed to cure the conditions of the material breach under Contract No. OTO40866 as specified in the District's certified letter of May 10, 2005 and the extension letter dated June 13, 2005. Pursuant to clause 6.1 of the contract, the District is therefore issuing this Termination for Default Notice (Notice), effective immediately upon your receipt of this certified Notice for failure to perform ground application services for exotic plant control at SandHill Crane Property. All contract performance shall cease as of the effective date of this Notice and the District shall initiate Governing Board actions for determination of temporary or permanent suspension, if any. * * * The District is in receipt of your letter dated June 30, 2005, in which you have requested additional time for your client to finish spraying at the SandHill Crane project. As the attached letter states, your client materially breached its contract with the District and was given a thirty (30) day cure notice. Your client failed to cure the breach within the required time. The District provided your client an additional 13 days to cure the breach due to the extraordinary circumstances surrounding the impossibility to perform due to the weather. Even after your client was afforded more time to complete the job, Enviroglades failed to show up at the site for over a week while the weather was good. As the attached letter states under no circumstances would your client be provided an extension of time after June 30, 2005. This letter shall serve as notice to have your client cease work on the SandHill Crane Project effective at the close of business on June 30, 2005. On July 29, 2005, Mr. Johnson made a post-treatment inspection of the SandHill site. In his final Exotic Plant Treatment Inspection Report, he noted as follows: The entire property was divided into 10 units which were to be treated sequently (sic) before proceeding to the next. Our inspection revealed that units 1, 2 and 3 were swept while unit 5 had some partial treatments. On units 1, 2 and 3 the Brazilian pepper treatments revealed [at] 80% control, while the Lygodium treatment were around 5% control. Unit 5 had only the western and southwestern area treated. The total area of the three units and one partial unit totaled approximately 30% of the property. When a default on a contract occurs, the District is required to determine "whether the contracting entity should be suspended, and if so, whether it should be temporarily suspended and for what period of time, or permanently suspended from doing business with the District." Fla. Admin. Code R. 40E-7.218(1). Section (2) of the rule identifies seventeen factors to take into account in making this determination. Three such factors are "[t]he economic impact of the material breach to the District," whether "the breach caused or will cause delay in the completion of a District project," and "if the breach caused a delay in performance, whether it was a substantial delay." Fla. Admin. Code R. 40E-7.218(2)(a), (b), and (c). Pursuant to the rule, Mr. Hayden "gathered material that would assist [him] in making the recommendation to the governing board," which included discussions with members of the Vegetation Management Division, the contract administrator, his deputy, and counsel, and a review of documents pertaining to the matter. The evidence shows that because of the breach, the District incurred additional costs due to an "inordinate amount of staff time supervising Enviroglades during the time they performed at SandHill Crane." This included additional site visits, inspections, and monitoring by the staff, numerous meetings with Respondent's representatives, the preparation of written communications, and the provision of further instructions and guidance not normally given to the contracting entity. Mr. Hayden also took into consideration the fact that the District incurred additional expenses in purchasing herbicides while Respondent attempted to complete the job. In all, the District says it incurred an economic impact of $6,264.15. (Mr. Hayden's testimony is unclear as to whether that amount is for the herbicides alone, or whether it also includes the value of the additional staff time expended on this job. It is assumed, however, that this amount represents the cost of the herbicides only, as this would be consistent with the District's Final Order.) Finally, Respondent's inability to complete the work "put the job performance into the rainy season," which caused a substantial delay in getting the project finished. It can reasonably be inferred from the evidence that because of the delay, the site could not be completed by another contractor until a new fiscal year (Fiscal Year 2006), at which time it would have to treat not only the normal vegetation growth which occurs from year to year, but also any targeted vegetation not treated by Respondent in 2005.2 On November 9, 2005, Mr. Hayden recommended that given these considerations, Respondent should be placed on the temporarily suspended list for a period of one year. The Governing Board accepted this recommendation and a Final Order was entered on November 10, 2005. This appeal followed. At hearing, among other things, Respondent contended that the $50,000.00 was insufficient to treat the entire site, and because the Contract was a time and materials contract, Respondent could do as much as it could for that amount, and consistent with District practice on other contracts, then request additional work orders to complete the project. If a contractor expresses concern about going over the ceiling amount in a work order in order to complete a job, the District customarily meets with the contractor to assess the property. This can occur before the job begins, during the job, or near the completion of the work. In determining whether funding is adequate for treatment at a particular site, and additional work orders should be issued for a job, the District takes into consideration such matters as the job performance of the contractor at the time the request is made, the manner in which the money to date has been expended by the contractor, any new conditions unknown to the District at the time the work order was written (such as access problems), and any other circumstances that may affect the price of the work. There are also certain types of sites and work that have constantly changing conditions that often require more than one work order. Examples are the District's Stormwater Treatment Areas (STAs) and the spraying of exotic vegetation in canals. The evidence suggests that Respondent had a work order under the Contract for one such area known as "STA One East." The SandHill site did not fall into either category. Respondent correctly points out that the District issued two work orders for the same site in 2003, and it has issued additional work orders to other contractors to complete a job, including the STA One East job, which Respondent was then performing under the same Contract. In the case of the work performed on the SandHill property in 2003, the contractor was doing the first herbicidal treatment of the site, it was meeting the minimum performance standards under its contract, and the District agreed that the contractor needed and deserved additional money to complete the job. Unlike that situation, Respondent failed to meet the minimum performance standard under the Contract, the District (and SandHill's land manager) did not believe that $50,000.00 worth of work had been performed, and therefore no additional work orders were justified. To issue work orders under these circumstances would be in direct conflict with Subsections 4.4.2 and 4.4.3 of the Contract. As to the issuance of a second work order for the STA One East job, STAs and canals are uniquely different from other projects (such as SandHill) and often times require additional work orders to complete the job. Respondent also contends that the District rule governing cure notices does not contain any prohibition against extending the cure period, and there is no evidence to justify not extending the period for another ten working days when the job was not completed on June 30, 2005. Neither Florida Administrative Code Rule 40E-7.215(3), which defines a "cure notice," or 40E-7.216, which describes the procedure for issuing one, address the issue of whether or not an extension of time to satisfy a cure notice can be granted. Here, the evidence does not show that the District was arbitrary or capricious or otherwise abused its discretion by failing to approve a second extension of time for Respondent to complete the work. Respondent further suggests that after the meeting on May 31, 2005 (which was two months after the work should have been completed), it was prohibited by the District from entering the SandHill site to finish the work for several weeks. The evidence shows that the District's primary concern was to get the job completed as soon as possible, given the fact that the rainy season began in June. Although there may have been some confusion on Respondent's part, particularly since its counsel instructed it not to enter the property until permission was given, there is no credible evidence that any District staffer told Respondent that it was prohibited from entering the site, or that retreatment must be delayed until a treatment plan had been formally approved by the District. Indeed, the evidence shows that Respondent had keys to the property at all times, and notification to the Vegetation Management Division is all that would have been required to access the site. Respondent further contends that it was confused over the language in Section 4.4.2 of the Contract calling for "90% control of targeted vegetation," that the cited provision is ambiguous, and that it did not learn the actual scope of the work until specific instructions were given after the Cure Notice was issued. Given the fact that Respondent's representatives attended a negotiation meeting and a contractor's review meeting, Mr. Bless visited the site prior to the beginning of the work, and no other contractor has ever been confused by this language, this argument has been rejected. All other contentions raised by Respondent have either been addressed in other Findings of Fact, or they are deemed to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order determining that Eco-Engineering, LLC, breached its Contract C-OT040866 in a material respect, and that it be placed on the temporarily suspended list from doing business with the District for a period of one year. DONE AND ENTERED this 25th day of July, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 25th day of July, 2006.
The Issue The issue in this case is whether Respondent, Christina Viering, discriminated against Petitioner, Bahiyyih Watson, on the basis of Watson's race and/or religion in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner, Bahiyyih Watson ("Watson") is a light-skinned Black American3/ female. Watson is an adjunct professor at Valencia Community College, where she teaches cultural anthropology. Watson holds a Ph.D. in anthropology. Watson practices the religion known as Yoruba, which has a tradition of Orishas and places a great emphasis on ancestors. The religion emphasizes African traditions and a respect for elders as well. At all times relevant hereto, Watson was residing in a house at 1830 Dover Road, Winter Park, Florida (the "House"). The House is owned by Respondent, Christina Viering ("Viering"). The House is a three-bedroom house in a residential neighborhood. It has a dining room, living room, kitchen and sun room, each of which was considered a common area for all residents. On August 2, 2008, Watson and Viering entered into a legal document erroneously entitled, "Assignment of Lease" (hereinafter the "Lease"), which called for Viering to rent a room in the House. The Lease has a term of six months, i.e., from August 30, 2008, until February 28, 2009. Viering identified the Lease as a month-to-month lease, but there is no language in the Lease to confirm that description. There is a document attached to the Lease entitled, "Tenant Policies," setting forth various issues relating to the Lease. The attachment contains a provision which states: "MONTH TO MONTH LEASE TERMINATING WITH PROPER NOTICE. WHEN TERMINATING YOUR LEASE, A 30 DAY WRITTEN NOTICE IS REQUIRED." The provision does not explain how it would be interpreted in contravention of the plain language of the Lease. There is nothing in the Lease specifying a particular room for Watson, but the parties testified that Watson occupied the bedroom with a bath, presumably the master suite. The Lease did not identify a specific room for Viering. Viering testified that she resided at the House during the term of the Lease between her and Watson, but did not sleep there every night. Watson said Viering never slept at the House while she, Watson, was there. One neighbor who lived across the street said she believed Viering lived at the House during the time Watson lived there. Another neighbor said she never saw Viering's car at the House overnight and only rarely during the day. The greater weight of the evidence suggests that Viering was at the House only sporadically and probably did not reside there as a residence. At the time Watson signed the Lease, she was working as an adjunct professor at Valencia Community College. She was in the process of submitting an application, including extensive paperwork, to become a tenured professor at the University of South Florida. The application process was intense and required considerable concentration and attention to detail to complete. The application was the most important matter in Watson's life at that time. One of her reasons for selecting the House as a residence was because it was on a quiet street and appeared to be a place where she could work without major distractions. Viering was made aware of this situation. On or about March 17, 2008, another resident, Abbey Nichols, moved into one of the other bedrooms in the House. On October 17, 2008, yet another resident, Kristen Bryan, moved into the third bedroom. Both of the two new tenants were young (twenty-ish) Caucasian women who were of the Christian faith. Each of the new tenants entered into an agreement identical to the Lease, but with different dates of residency. The two new tenants were not inclined to help Watson clean or maintain the House. Viering testified that she slept overnight at the House only two or three times a month. When she slept there, she slept in the Florida room at the rear of the House. The washer and dryer were located in the Florida Room. Again, Watson does not remember Viering ever staying overnight at the House, taking her meals there, or otherwise treating it as her place of residence. Landlord-Tenant Disputes Almost immediately upon Watson taking residence in the House, she and Viering began to have disputes about various and sundry issues. For example: Watson complained that Viering was moving her personal belongings around; Viering said she only moved items off the kitchen table so that she could wash the tablecloth. Watson said that Viering had thrown away some of Watson's kitchenware; Viering said she threw away a styrofoam cup when she was cleaning the kitchen. The disputes soon escalated. On September 17, 2008, less than one month into the six-month lease, Viering sent Watson a notice to vacate the premises within 30 days. The parties must have worked out an agreement, however, because Watson remained in the House after the proffered termination date. The relationship between Viering and Watson, however, did not improve. They continued to disagree about things and communication between the two seemed quite strained. On or about November 8, 2008, Viering went to the House to check on a leak which had been reported. A neighbor from across the street, Ms. Wilson, accompanied her as she looked around the House. Viering testified under oath that while doing the inspection, she noticed mail in Watson's room that appeared to belong to Viering. When she inspected the mail and determined that it belonged to her, Viering was concerned about possible identity theft. Viering then went to the local post office and requested an address change so that her mail would not go to the House. Wilson remembers the event somewhat differently: She says that Viering said she (Viering) believed Watson had some of her mail and wanted to go into the room to check. Watson saw Viering take some mail that she claimed belonged to her, but Watson never personally identified the names on the letters. Watson denies ever having mail that belonged to Viering. The only certain fact concerning this situation was that Viering did go into Watson's room and retrieved some mail. It is not certain who the mail belonged to or whether Viering identified the mail as hers before going into Watson's room. Plumbing Problems Two days later, one of the tenants reported to Viering that the plumbing at the House was stopped up. Viering told the tenants that it was their responsibility to call a plumber and get the stoppage cleared up. She took this stance because, some ten years prior, some of Viering's tenants had flushed items down the toilet, causing a back-up in the plumbing. Viering believed her current tenants had done the same. One of the young tenant's fathers then called Viering and suggested that the plumbing problem could be caused by roots growing into the pipes, and, if so, then the problem would be the landlord's responsibility. Viering agreed then to call the plumber herself. Jamaal Crooks, a plumber working for Bryan Plumbing, came to the House on November 14, 2008, to work on the problem. He went into the House, but only into the hallway bathroom. He did not enter Watson's room or the bathroom in her room. Crooks then went outside and used a cable to reach inside the main sewer line. He pulled three tampons out of the line, thus, clearing the blockage. Crooks could not say if there were more tampons in the line at that time, but the ones he removed were sufficient to allow the sewage to flow. Crooks apparently gave Viering a bill for his services at that time. The amount on the bill was $178.00. Viering demanded that Watson pay the bill or that she at least pay her one-third share. Viering did not believe she should share in the cost, because she was not staying at the House on a permanent basis. That testimony contradicts her statements that she was at the House regularly and that it was her residence at that time. Watson refused to pay the bill, because she did not feel responsible for the stoppage. Some six days later, Bryan Plumbing issued another invoice in the amount of $178.00. The invoice included a note that said, "Tenant refused to pay bill. Christina was present the whole time." It is unclear from the testimony why this invoice was issued if a bill had been presented on the day of service. Viering ultimately paid the plumbing bill and asked each of her tenants to pay a portion of it. Watson said the plumbing worked for only four or five hours after Crooks left the premises. Viering says the plumbing was working for up to a week. It is clear the plumbing problem was not totally resolved. When a tenant would attempt to shower or flush the toilet, sewage would back up into the bathtub and shower stall. The tenants were afraid to drink water from the faucet because they did not know if it was contaminated or not. As will be discussed below, the two Caucasian tenants left the House soon after the November 14, 2008, plumbing issue. Watson, who could not afford to move and had no friends or family with space to accommodate her, remained at the House. There was no working toilet, so Watson had to find other means of performing daily hygiene. She would bathe as well as possible at local stores or gas stations. She would drive to stores to use their restrooms. At night when the stores were closed, she would reluctantly go into the backyard and dig a hole to use as a latrine. By that time she was becoming physically ill from all the stress. When she needed to vomit, she would have to use the hole in the ground for that purpose as well. Watson endured this situation for almost three weeks before finally finding another place to live. On December 19, 2008, a little over a month after the initial plumbing problem, Crooks came back to the House to fix the plumbing again. By that time, all three tenants, including Watson, had already moved out of the House. Although Crooks had no independent recollection of being at the House on that date, he identified a written statement he had made on that date saying he had "found more tampons in line [sic]." Crooks could not say if the tampons were left over from the prior visit, but inasmuch as the plumbing was not working in the interim, that is probable. Notices to Vacate On November 12, 2008, just two days after receiving her initial notice about the plumbing problem, Viering gave all three tenants a Lease Violation Warning setting forth certain alleged violations and giving the tenants three days to come into compliance. Two days later, on the day the plumbing was initially fixed, Viering gave each tenant a 30-day notice to vacate the premises. The basis for the notices, as set forth in another letter from Viering to the tenants, was that a police officer had advised her that she should evict the three tenants. Viering said that action was "radical" and that she opted for a 30-day notice of termination of the Leases instead. On the same day she gave the tenants the 30-day notice, she gave each of them a seven-day notice which specified lease violations. The notice to Bryan set forth the following violations: Failure to maintain plumbing Failure to pay share of utilities and repairs Unauthorized guests on property Unauthorized overnight guests Harassment by unauthorized guests Disturbing the peace Failure to maintain sanitary conditions The notice to Nichols set forth very similar violations, to wit: Failure to maintain premises in a sanitary manner Negligent use of plumbing Failure to pay plumbing repair Unauthorized guests on the property Unauthorized overnight guests on the property Destruction of property belonging to the landlord or permitting another person do so The notice given to Watson contained the following alleged violations: Failure to maintain plumbing Failure to comply with payments due [sic] Share of utilities to be paid Share of repair to plumbing Disposal of garbage in sanitary manner Maintaining the premises in sanitary condition Unauthorized overnight guests on a regular basis Harassment to me by yourself and guests On the same date that Viering gave the tenants their seven-day notices and 30-day termination notices, she gave Watson two additional letters: One was a letter advising Watson that her security deposit amount was being increased by an additional $100.00; the second was a demand to have Viering's dresser (which Watson was using) ready to be picked up on the upcoming weekend. Religious Controversy The rash of notices on November 14, 2008, indicates some irrationality on Viering's part. It also indicates that the landlord-client relationship was not working effectively. On that same day, Watson called the police to report Viering for harassment. While waiting for the police, Watson went into the backyard to avoid contact with Viering. Viering, however, came into the backyard and confronted Watson. Watson remembers Viering coming toward her with something in her hand, raised above her head. Viering was chanting some incantations and acting bizarre. Viering remembers only that she wanted to talk to Watson and was going to use her cell phone to videotape Watson as she talked. As she approached Watson, she recited the Lord's Prayer to cover herself with God's protection.4/ On November 15, 2008, one day after the aforementioned notices, Viering posted a Notice of Non-Renewal at the House, advising Nichols that her lease would not be renewed and that Nichols must vacate the premises no later than December 1, 2008. On that same day, Viering cut out cross-shaped designs from some magazines and posted them around the House. Viering did so as a part of her Christian religious beliefs, thinking there was "evil" in the House and hoping to eradicate it. When Watson took the crosses down because she considered them offensive, Viering made replacement crosses. Watson says Viering used paper from Watson's room to make the crosses; Viering says she used liner paper from her dresser and a Home Depot catalogue. The crosses were placed on various windows around the House. Watson states that she sent Viering a letter complaining that the crosses were traumatizing to her as a black woman. Viering does not remember any complaint from Watson about the crosses. Watson's written missive to Viering on this subject could not be produced. Watson says she also left voice messages on Viering's telephone. Viering said that she does not remember any such message, but since Watson sent her so many text and emails that were harassing in nature, Viering would frequently delete messages before reading them. The following day, Sunday, November 16, 2008, Viering returned to the House and put up wooden crosses in the front flower beds. She also painted black crosses on each slat of the privacy fence behind the House and on some windows in the House. The crosses were accompanied by messages such as, "The pure white light of Christ" and other inspirational sayings from Viering's Christian literature. The black crosses were crudely painted using a paper towel because Viering could not find a paint brush. Watson arrived home after dark and found the large cross in the front yard and the crosses painted on all the windows, which frightened her, so she asked a male neighbor to accompany her into the House to make sure no one was there. Inside the House, there were numerous crosses painted on windows and doors. All of this made Watson extremely frightened, so she called the police. She was told that unless the crosses were on fire, they could not investigate. Additional Disputes On November 17, 2008, Viering provided additional notices to the tenants: Watson was advised that her bedroom would be inspected, that she should return all items that were not her property, and that she should remove her property from the common areas of the House. Bryan received yet another Notice of Termination, effective immediately. Both Bryan and Nichols moved out of the House shortly thereafter. At some point, Watson remembers receiving a written notice telling her to vacate within seven days. The reason for the notice was that Viering had gotten into a confrontation with a black woman outside the House and presumed that the woman was Watson's friend. In fact, the woman was the mother of one of Bryan's friends.5/ Viering had borrowed a bicycle off the front porch of the House. The bike belonged to a young man who was visiting Bryan, and he thought someone had stolen the bike. The young man's mother accosted Viering for taking the bike without asking. That altercation appears to have been the genesis of the notice to Watson. On November 19, 2008, Watson contacted the Seminole County Sheriff's Office and filed a complaint against Viering. The complaint was for harassment and violation of landlord- tenant laws. Watson also contacted every state agency she could think of to seek some sort of redress from the conditions she was living in. She called, by her account, the Public Works department, the Utilities Commission, Health and Safety, and Sanitation, to name a few. None of the agencies acknowledged jurisdiction over the matter. On December 9, 2008, Viering received a letter from a local television station stating that a consumer had filed a complaint alleging denial of basic services by Viering. Thereafter, the television station broadcasted a consumer human-interest story concerning Watson's plight. At some point in time, Watson filed a Petition for Temporary Injunction against Viering, claiming some sort of violence by Viering. The Injunction proceeding was dismissed on January 6, 2009, when Watson failed to appear at the court hearing on the matter. By that date, Watson was no longer residing at the House. On or about November 30, 2008, Watson had vacated the House, ending the relationship between herself and Viering. Watson alleges discrimination based on her race due to the fact that she received more notices than the other (Caucasian) tenants from Viering. However, Watson was the longest serving tenant and had the most interaction with Viering, so there is no way to establish discrimination based solely on the number of notices. Watson alleges religious discrimination based on the bizarre behavior of Viering, such as placing crosses and religious sayings around the House, chanting the Lord's Prayer or other incantations, and referencing evil in the House. However, there is no persuasive evidence that Viering was aware of Watson's religion, Yoruba. Although Viering was in Watson's room on occasion and must have seen Watson's shrines, there is no evidence that Viering was aware of what the shrines stood for. Watson claims discrimination based on the fact that Viering was less tolerant of her than of the white, Christian tenants. The other tenants did not testify at final hearing, so it is impossible to compare their treatment to Watson's. Viering clearly acted in a very strange and unusual fashion. She was not a pleasant landlord. However, her actions appear to be based on her own personality and demeanor, rather than on any intent to discriminate based on race or religion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Bahiyyih Watson in its entirety. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S 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 11th day of May, 2011.
The Issue Whether the Petitioner established that it is entitled to compensation pursuant to sections 604.15 through 604.34, Florida Statutes (2013).1/
Findings Of Fact The Petitioner grows and sells grass sod in the State of Florida, thus, meeting the statutory definition of a "producer of agricultural products."2/ Respondent is a licensed "dealer in agricultural products," as defined by chapter 604, Florida Statutes.3/ Sometime in November 2013, the Petitioner and American Sod entered into a verbal contract, where the Petitioner would furnish bahia grass sod for Respondent. The initial invoices for deliveries to American Sod on November 7, 8, 11 and 14, 2013, show that the Petitioner charged American Sod $0.055 for each sod square delivered. However, the price increased to $0.065 for each sod square on November 15, 17, 21, December 10, and 17, 2013, based on the agreement of the parties that the price would increase if American Sod failed to timely pay the invoices. Here, it is not disputed that American Sod failed to timely pay the Petitioner for its sod. The invoices and testimony show that the Petitioner charged American Sod for sod, as well as for deposits on the wooden pallets used for delivery of the sod. The total amount owed by American Sod is $4,378.92. Out of this total amount owed, the facts show that $3,016.92 is attributed to American Sod's failure to pay for the sod and $1,362.00 is for the pallets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, American Sod Services, Inc., pay the Petitioner, Other Side Sod Company, LLC, the sum of $3,016.92. It is further RECOMMENDED that if American Sod fails to timely pay the Petitioner, as ordered, that the Respondent, Auto-Owners Insurance Company, as surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 20th day of August, 2014, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 20th day of August, 2014.
