Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983) . At all times pertinent to this proceeding, Respondent Swaiff was a licensed dealer in agricultural products as defined by Section 604.15(1); Florida Statutes (1983), issued license No. 1630 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $25,000.00 Bond No. RN 4528454. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). The record is clear that Respondent Swain agreed to purchase a load of watermelons from Petitioner at an agreed upon price of $0.03 per pound, with payment "due on date of sale", to be loaded on a truck furnished by Respondent Swain through Elton Stone, Inc., a truck broker. Petitioner agreed to harvest and load the truck with a "good quality" or U.S. No. 1 grade watermelons subject to rejection on arrival at their destination if the watermelons were nonconforming for reasons attributable to the Petitioner. No evidence was presented with regard as to what Respondent Swain or Petitioner understood watermelons of "good quality" to mean and, likewise, no evidence was presented to show what standards a load of watermelons had to meet in order to be graded U.S. No. 1. Although Respondent Swain contends that he acted only as a sales agent, that is, he arranged the sale of the watermelons and made arrangements for a truck to deliver the watermelons; the evidence shows that the agreement between Petitioner and Respondent Swain was that title and risk of loss passed to Respondent Swain on shipment, with all remedies and rights for Petitioner's breach reserved to Respondent Swain. Petitioner sold other loads of watermelons to Respondent Swain during the 1985 watermelon season but only one (1) load is in dispute which is a load of watermelons weighing 4,8760 pounds at $0.03 per pound for a total amount of $1;462.80 which Respondent Swain has refused to pay. From June 19, 1985 through June 30, 1985, Petitioner harvested and sold nine t9) other loads of watermelons from the same field as the watermelons in dispute were harvested without any loss due to anthractnose rot or otherwise on arrival at their destination. The watermelons in dispute were loaded June 26, 1985 on a trailer with license number KY-T37-131 and billed to Charley Brothers Company; New Stanton; Pennsylvania by Respondent Swain's on his Invoice Number 061843 and delivered on June 28, 1985. Charley Brothers Company rejected the load and Respondent Swain called for an inspection which showed some anthractnose rot in the early stages in the front ten (10) feet of trailer with the remaining load showing no decay. The percentage of rot or decay is not-evident from the report since it is somewhat illegible and the inspector who prepared the report did not testify. 10 The evidence was insufficient to prove whether the trailer was vented or not vented. The testimony of those persons present during the loading of the watermelons in dispute was credible and shows that the watermelons were in good condition on June 26; 1985 when they were loaded and that if anthractnose rot was present on the watermelons it was not visible at the time of loading. Neither Respondent Swain nor his representative were present during the harvesting and loading of the watermelons. The evidence shows that Respondent Swain made numerous telephone calls in regard to this load of watermelons, some of those calls to Petitioner, but the evidence is insufficient to prove the content of those telephone conversations with Petitioner. The load was put on consignment to Felix and Sons Wholesale by Respondent Swain and he received a check in the sum of $500.00 as payment for the load of watermelons. Respondent Swain paid Elton Stone, Inc. $1,820.94 for freight resulting in a loss of $1,320.94 on the load of watermelons.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein; it is RECOMMENDED that Respondent Swain be ordered to pay to the Petitioner the sum of $t,494.30. It is further RECOMMENDED that if Respondent Swain fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21; Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 28th day of February, 1986, in Tallahassee; Leon County; Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, F1orida 32301 L. J. Crawford Route 3, Box 269 Lake Butler, Florida 32059 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight; Chief License and Bond Room 418, Mayo Building Tallahassee, Florida 32301 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801 Dale M. Swain d/b/a Palm Fruit Shop 313 West Seminole Avenue Bushnell, Florida 33513
The Issue The issue to be determined in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017- 108, entitled “SAIL Financing of Affordable Multifamily Housing Developments To Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits” was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. To promote affordable housing in Florida, Florida Housing offers a variety of programs to distribute housing credits. (Housing credits, also known as tax credits, are a dollar-for-dollar offset of federal income tax liability.) One of these programs is the State Apartment Incentive Loan program (“SAIL”), which provides low-interest loans on a competitive basis to affordable housing developers. SAIL funds are available each year to support the construction or substantial rehabilitation of multifamily units affordable to very low- income individuals and families. See § 420.5087, Fla. Stat. Additional sources of financial assistance include the Multifamily Mortgage Revenue Bond program (“MMRB”) and non- competitive housing credits. Florida Housing administers the competitive solicitation process to award low-income housing tax credits, SAIL funds, nontaxable revenue bonds, and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive application process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The Request for Application at issue in this matter is RFA 2017-108, entitled “SAIL Financing of Affordable Multifamily Housing Developments to Be Used in Conjunction with Tax-Exempt Bond Financing and Non-Competitive Housing Credits.” Florida Housing issued RFA 2017-108 on August 31, 2017. Applications were due by October 12, 2017.6/ The purpose of RFA 2017-108 is to distribute funding to create affordable housing in the State of Florida. Through RFA 2017-108, Florida Housing intends to award approximately $87,000,000 for proposed developments serving elderly and family demographic groups in small, medium, and large counties. RFA 2017-108 allocates $46,279,600 to large counties, $32,308,400 to medium counties, and $8,732,000 to small counties. RFA 2017-108 established goals to fund: Two Elderly, new construction Applications located in Large Counties; Three Family, new construction Applications located in Large Counties; One Elderly, new construction Application located in a Medium County; and Two Family, new construction Applications located in Medium Counties. Thirty-eight developers submitted applications in response to RFA 2017-108. Of these applicants, Florida Housing found 28 eligible for funding, including all Petitioners and Intervenors in this matter. Florida Housing received, processed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2017-108, Florida Administrative Code Chapters 67- 48 and 67-60, and applicable federal regulations. RFA 2017-108 provided that applicants were scored based on certain demographic and geographic funding tests. Florida Housing sorted applications from the highest scoring to the lowest. Only applications that met all the eligibility requirements were eligible for funding and considered for selection. Florida Housing created a Review Committee from amongst its staff to review and score each application. On November 15, 2017, the Review Committee announced its scores at a public meeting and recommended which projects should be awarded funding. On December 8, 2017, the Review Committee presented its recommendations to Florida Housing’s Board of Directors for final agency action. The Board of Directors subsequently approved the Review Committee’s recommendations and announced its intention to award funding to 16 applicants. As a preliminary matter, prior to the final hearing, Florida Housing agreed to the following reassessments in the scoring and selection of the applications for funding under RFA 2017-108: SP Lake and Osprey Pointe: In the selection process, Florida Housing erroneously determined that SP Lake was eligible to meet the funding goal for the “Family” demographic for the Family, Medium County, New Construction Goal. (SP Lake specifically applied for funding for the “Elderly” demographic.) Consequently, Florida Housing should have selected Osprey Pointe to meet the Family, Medium County, New Construction Goal. Osprey Pointe proposed to construct affordable housing in Pasco County, Florida. Florida Housing represents that Osprey Pointe is fully eligible for funding under RFA 2017-108. (While Osprey Pointe replaces SP Lake in the funding selection for the “Family” demographic, SP Lake remains eligible for funding for the “Elderly” demographic.) Sierra Bay and Northside II: In the scoring process, Florida Housing erroneously awarded Sierra Bay proximity points for Transit Services. Upon further review, Sierra Bay should have received zero proximity points. Consequently, Sierra Bay’s application is ineligible for funding under RFA 2017-108. By operation of the provisions of RFA 2017-108, Florida Housing should have selected Northside II (the next highest ranked, eligible applicant) for funding to meet the Elderly, Large County, New Construction Goal. Florida Housing represents that Northside II is fully eligible for funding under RFA 2017-108. Harbour Springs: Florida Housing initially deemed Harbour Springs eligible for funding under RFA 2017-108 and selected it to meet the Family, Large County, New Construction Goal. However, because Harbour Springs and Woodland Grove are owned by the same entity and applied using the same development site, under rule 67-48.004(1), Harbour Springs is ineligible for funding. (Florida Housing’s selection of Woodland Grove for funding for the Family, Large County, New Construction Goal, is not affected by this determination.) The sole disputed issue of material fact concerns Liberty Square’s challenge to Florida Housing’s selection of Woodland Grove to meet the Family, Large County Goal. Liberty Square and Woodland Grove applied to serve the same demographic population under RFA 2017-108. If Liberty Square successfully challenges Woodland Grove’s application, Liberty Square, as the next eligible applicant, will be selected for funding to meet the Family, Large County Goal instead of Woodland Grove. (At the hearing on December 8, 2017, Florida Housing’s Board of Directors awarded Woodland Grove $7,600,000 in funding.) The focus of Liberty Square’s challenge is the information Woodland Grove provided in response to RFA 2017-108, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” Liberty Square argues that Woodland Grove’s application is ineligible because its Development Location Point, as well as the locations of its Community Services and Transit Services, are inaccurate. Therefore, Woodland Grove should have received zero “Proximity” points which would have disqualified its application for funding. RFA 2017-108, Section Four, A.5.d(1), states, in pertinent part: All Applicants must provide a Development Location Point stated in decimal degrees, rounded to at least the sixth decimal place. RFA 2017-108 set forth scoring considerations based on latitude/longitude coordinates in Section Four, A.5.e, entitled “Proximity.” Section Four, A.5.e, states, in pertinent part: The Application may earn proximity points based on the distance between the Development Location Point and the Bus or Rail Transit Service . . . and the Community Services stated in Exhibit A. Proximity points will not be applied to the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference ” In other words, the Development Location Point identified the specific location of an applicant’s proposed housing site.7/ Applicants earned “proximity points” based on the distance between its Development Location Point and selected Transit and Community Services. Florida Housing also used the Development Location Point to determine whether an application satisfied the Mandatory Distance Requirement under RFA 2017-108, Section Four A.5.f. To be eligible for funding, all applications had to qualify for the Mandatory Distance Requirement. The response section to Section Four, A.5.d., is found in Exhibit A, section 5, which required each applicant to submit information regarding the “Location of proposed Development.” Section 5 specifically requested: County; Address of Development Site; Does the proposed Development consist of Scattered Sites?; Latitude and Longitude Coordinate; Proximity; Mandatory Distance Requirement; and Limited Development Area. Section 5.d. (Latitude and Longitude Coordinates) was subdivided into: (1) Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place Longitude in decimal degrees, rounded to at least the sixth decimal place In its application, Woodland Grove responded in section 5.a-d as follows: County: Miami-Dade Address of Development Site: NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032. Does the proposed Development consist of Scattered Sites? No. Latitude and Longitude Coordinate; Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place: 25.518647 Longitude in decimal degrees, rounded to at least the sixth decimal place: 80.418583 In plotting geographic coordinates, a “-” (negative) sign in front of the longitude indicates a location in the western hemisphere (i.e., west of the Prime Meridian, which is aligned with the Royal Observatory, Greenwich, England). A longitude without a “-” sign places the coordinate in the eastern hemisphere. (Similarly, a latitude with a negative value is south of the equator. A latitude without a “-” sign refers to a coordinate in the northern hemisphere.) As shown above, the longitude coordinate Woodland Grove listed in section 5.d(1) did not include a “-” sign. Consequently, instead of providing a coordinate for a site in Miami-Dade County, Florida, Woodland Grove entered a Development Location Point located on the direct opposite side of the planet (apparently, in India). At the final hearing, Florida Housing (and Woodland Grove) explained that, except for the lack of the “-” sign, the longitude Woodland Grove recorded would have fallen directly on the address it listed as its development site in section 5.b., i.e., the “NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032.” In addition to the longitude in section 5.d., Woodland Grove did not include a “-” sign before the longitude coordinates for its Transit Services in section 5.e(2)(b) or for any of the three Community Services provided in section 5.e(3). Again, without a “-” sign, the longitude for each of these services placed them in the eastern hemisphere (India) instead of the western hemisphere (Miami-Dade County). In its protest, Liberty Square contends that, because Woodland Grove’s application listed a Development Location Point in India, Florida Housing should have awarded Woodland Grove zero proximity points under Section Four, A.5.e. Consequently, Woodland Grove’s application failed to meet minimum proximity eligibility requirements and is ineligible for funding. Therefore, Liberty Square, as the next eligible applicant, should be awarded funding for the Family, Large County Goal, under RFA 2017-108.8/ Liberty Square asserts that a correct Development Location Point is critical because it serves as the beginning point for assigning proximity scores. Waiving an errant Development Location Point makes the proximity scoring meaningless. Consequently, any such waiver by Florida Housing is arbitrary, capricious, and contrary to competition. At the final hearing, Woodland Grove claimed that it inadvertently failed to include the “-” sign before the longitude points. To support its position, Woodland Grove expressed that, on the face of its application, it was obviously applying for funding for a project located in Miami-Dade County, Florida, not India. In at least five places in its application, Woodland Grove specified that its proposed development would be located in Miami-Dade County. Moreover, several attachments to Woodland Grove’s application specifically reference a development site in Florida. Woodland Grove attached a purchase agreement for property located in Miami-Dade County (Attachment 8). To satisfy the Ability to Proceed requirements in RFA 2017-108, Woodland Grove included several attachments which all list a Miami-Dade address (Attachments 9-14). Further, Woodland Grove submitted a Local Government Verification of Contribution – Loan Form executed on behalf of the Mayor of Miami-Dade County, which committed Miami-Dade County to contribute $1,000,000.00 to Woodland Grove’s proposed Development (Attachment 15). Finally, to qualify for a basis boost under RFA 2017-108, Woodland Grove presented a letter from Miami-Dade County’s Department of Regulatory and Economic Resources, which also referenced the address of the proposed development in Miami-Dade County (Attachment 16). In light of this information, Woodland Grove argues that its application, taken as a whole, clearly communicated that Woodland Grove intended to build affordable housing in Miami-Dade County. Nowhere in its application, did Woodland Grove reference a project in India other than the longitude coordinates which failed to include “-” signs. Accordingly, Florida Housing was legally authorized to waive Woodland Grove’s mistake as a “harmless error.” Thus, Florida Housing properly selected the Woodland Grove’s development for funding to meet the Family, Large County Goal. Florida Housing advocates for Woodland Grove’s selection to meet the Family, Large County Goal, under RFA 2017- 108. Florida Housing considers the omission of the “-” signs before the longitude coordinates a “Minor Irregularity” under rule 67-60.002(6). Therefore, Florida Housing properly acted within its legal authority to waive, and then correct, Woodland Grove’s faulty longitude coordinates when scoring its application. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s current Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process; although, she did not personally participate in the review, scoring, or selection decisions for RFA 2017-108. Ms. Button initially explained the process by which Florida Housing selected the 16 developments for funding under RFA 2017-108. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. The Review Committee members independently evaluated and scored their assigned portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. Ms. Button further explained that applicants occasionally make errors in their applications. However, not all errors render an application ineligible. Florida Housing is authorized to waive “Minor Irregularities.” As delineated in RFA 2017-108, Section Three, A.2.C., Florida Housing may waive “Minor Irregularities” when the errors do not provide a competitive advantage or adversely impact the interests of Florida Housing or the public. See Fla. Admin. Code R. 67- 60.002(6) and 67-60.008. Such was the case regarding Woodland Grove’s application. Heather Green, the Florida Housing staff member who scored the “Proximity” portion of RFA 2017-108, waived the inaccurate longitude coordinates as “Minor Irregularities.” Ms. Green then reviewed Woodland Grove’s application as if the proposed development was located in Miami-Dade County, Florida. Florida Housing assigned Ms. Green, a Multifamily Loans Manager, as the lead scorer for the “Proximity” portion of RFA 2017-108, which included the Development Location Point listed in Exhibit A, section 5.d. Ms. Green has worked for Florida Housing since 2003 and has scored proximity points for Request for Applications for over ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Green. In her deposition, Ms. Green testified that she is fully aware that, to be located in the western hemisphere (i.e., Miami-Dade County), a longitude coordinate should be marked with a negative sign or a “W.” Despite this, Ms. Green felt that the longitude coordinates Woodland Grove used without negative signs, particularly its Development Location Point, were clearly typos or unintentional mistakes. Therefore, Ms. Green waived the lack of a negative sign in front of the longitude coordinates in section 5.d. and section 5.e. as “Minor Irregularities.” Ms. Green understood that she was authorized to waive “Minor Irregularities” by rule under the Florida Administrative Code. Ms. Green felt comfortable waiving the inaccurate longitude coordinates because everywhere else in Woodland Grove’s application specifically showed that its proposed housing development was located in Miami-Dade County, not India. Accordingly, when scoring Woodland Grove’s application, Ms. Green corrected the longitude entries by including a negative sign when she plotted the coordinates with her mapping software. Ms. Green then determined that, when a “-” was inserted before the longitude, the coordinate lined up with the address Woodland Grove listed for the Development Location Point. Therefore, Woodland Grove received proximity points and was eligible for funding under RFA 2017-108. (See RFA 2017-108, Section Five.A.1.) However, Ms. Green acknowledged that if she had scored the application just as it was presented, Woodland Grove would not have met the required qualifications for eligibility. Ms. Button relayed that Florida Housing fully accepted Ms. Green’s decision to waive the missing negative signs in Woodland Grove’s response to section 5.d. and 5.e. as “Minor Irregularities.” Ms. Button opined that Woodland Grove’s failure to place a “-” mark before the longitude was clearly an unintentional mistake. Ms. Button further commented that Florida Housing did not believe that scoring Woodland Grove’s development as if located in the western hemisphere (instead of India), provided Woodland Grove a competitive advantage. Because it was evident on the face of the application that Woodland Grove desired to develop a housing site in Miami-Dade County, Ms. Green’s decision to overlook the missing “-” sign did not award Woodland Grove additional points or grant Woodland Grove an advantage over other applicants. Neither did it adversely impact the interests of Florida Housing or the public. However, Ms. Button also conceded that if Ms. Green had scored the application without adding the “-” sign, Woodland Grove would have received zero proximity points. This result would have rendered Woodland Grove’s application ineligible for funding. Ms. Button also pointed out that Ms. Green waived the omission of “-” signs in two other applications as “Minor Irregularities.” Both Springhill Apartments, LLC, and Harbour Springs failed to include negative signs in front of their longitude coordinates. As with Woodland Grove, Ms. Green considered the development sites in those applications as if they were located in Miami-Dade County (i.e., in the western hemisphere). Ms. Green also waived a mistake in the Avery Commons application as a “Minor Irregularity.” The longitude coordinate for the Avery Commons Development Location Point (section 5.d(1)) was blank. However, Ms. Green determined that Avery Commons had placed the longitude in the blank reserved for Scattered Sites coordinates (section 5.d(2)). When scoring Avery Commons’ application, Ms. Green considered the coordinate in the appropriate section. According to Ms. Button, Florida Housing felt that this variation did not provide Avery Commons a competitive advantage. Nor did it adversely impact the interests of Florida Housing or the public. Finally, Ms. Button explained that the application Florida Housing used for RFA 2017-108 was a relatively new format. In previous Request For Applications, Florida Housing required applicants to submit a Surveyor Certification Form. On the (now obsolete) Surveyor Certification Form, Florida Housing prefilled in an “N” in front of all the latitude coordinates and a “W” in front of all the longitude coordinates. However, the application used in RFA 2017-108 did not place an “N” or “W” before the Development Location Point coordinates. Based on the evidence presented at the final hearing, Liberty Square did not establish, by a preponderance of the evidence, that Florida Housing’s decision to award funding to Woodland Grove for the Family, Large County Goal, under RFA 2017-108 was clearly erroneous, contrary to competition, arbitrary, or capricious. Florida Housing was within its legal authority to waive, then correct, the missing “-” sign in Woodland Grove’s application as “Minor Irregularity.” Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to select Woodland Grove for funding was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-108.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by Liberty Square. It is further recommended that Florida Housing Finance Corporation rescind the intended awards to Sierra Bay, SP Lake, and Harbour Springs, and instead designate Northside II, Osprey Pointe, and Pembroke Tower Apartments as the recipients of funding under RFA 2017-108.10/ DONE AND ENTERED this 19th day of April, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 19th day of April, 2018.
The Issue The issues presented are whether Respondent, George Mason Citrus, Inc. (Mason), owes Petitioner $10,000 for citrus fruit that Mason purchased from Petitioner and, if so, whether the surety is liable for any deficiency in payment from Mason.
Findings Of Fact Petitioner is a Florida corporation licensed by the Department as a “citrus fruit dealer,” within the meaning of Subsection 601.03(8), Florida Statutes (2005) (dealer).1 The business address for Petitioner is 1103 Southeast Lakeview Drive, Sebring, Florida 33870. Mason is a Florida corporation licensed by the Department as a citrus fruit dealer. The business address for Mason is 140 Holmes Avenue, Lake Placid, Florida 33852. Western is the surety for Mason pursuant to bond number 42292005 issued in the amount of $100,000 (the bond). The term of the bond is August 1, 2004, through July 31, 2005. Petitioner conducts business in Highlands County, Florida, as a dealer and as a “broker” defined in Subsection 601.03(3). In relevant part, Petitioner purchases white grapefruit (grapefruit) for resale to others, including Mason. Mason conducts business in Highlands County as either an “agent,” “broker,” or “handler” defined in Subsections 601.03(2), (3), and (23). On January 31, 2003, Mason contracted with Petitioner to purchase grapefruit from Petitioner pursuant to Fruit Contract number 03-307 (the contract). Mason drafted the contract. The terms of the contract require Petitioner to sell grapefruit to Mason for the 2003, 2004, and 2005 “crop years.” The 2003 crop year began in the fall of 2002 and ended at the conclusion of the spring harvest in 2003. The 2004 and 2005 crop years began in the fall of 2003 and 2004 and ended in the spring of 2004 and 2005, respectively. Only the 2005 crop year is at issue in this proceeding. The contract required Petitioner to deliver grapefruit to a person designated by Mason. Mason designated Peace River Citrus Products, Inc. (Peace River), in Arcadia, Florida, for delivery of the grapefruit at issue. Mason was required by the terms of a Participation Agreement with Peace River to deliver 30,000 boxes of grapefruit to Peace River during the 2005 crop year. In an effort to satisfy its obligation to Peace River, Mason entered into the contract with Petitioner for an amount of grapefruit described in the contract as an “Approximate Number of Boxes” that ranged between 12,000 and 14,000. Petitioner delivered only 2,128 boxes of grapefruit to Peace River. The production of grapefruit was significantly decreased by three hurricanes that impacted the area during the 2005 crop year. The parties agree that Mason owed Petitioner $19,070.03 for the delivered boxes of grapefruit. The amount due included a portion of the rise in value over the base purchase price in the contract caused by increases due to market conditions and participation pay out after the parties executed the contract (the rise).2 On or about October 26, 2005, Mason mailed Petitioner a check for $9,070.03. The transmittal letter for the check explained the difference between the payment of $9,070.03 and the amount due of $19,070.03. Mason deducted $10,000 from the $19,070.03 due Petitioner, in part, to cover the cost of grapefruit Mason purchased from other dealers or growers to make up the deficiency in grapefruit delivered by Petitioner (cover). The $10,000 sum also includes interest Mason claims for the cost of cover and Mason's claim for lost profits. Petitioner claims that Mason is not entitled to deduct lost profits and interest from the amount due Petitioner. If Mason were entitled to deduct interest, Petitioner alleges that Mason calculated the interest incorrectly. The larger issue between the parties is whether Mason is entitled to deduct cover charges from the amount due Petitioner. If Mason were not entitled to cover the deficiency in delivered boxes of grapefruit, Mason would not be entitled to interest on the cost of cover and lost profits attributable to the deficiency. The parties agree that resolution of the issue of whether Mason is entitled to cover the deficiency in delivered boxes of grapefruit turns on a determination of whether the contract was a box contract or a production contract. A box contract generally requires a selling dealer such as Petitioner to deliver a specific number of boxes, regardless of the source of grapefruit, and industry practice permits the purchasing dealer to cover any deficiency. A production contract generally requires the selling dealer to deliver an amount of grapefruit produced by a specific source, and industry practice does not permit the purchasing dealer to cover any deficiency. The contract is an ambiguous written agreement. The contract expressly provides that it is a "Fruit Purchase Contract" and a "delivered in" contract but contains no provision that it is either a box or production contract. The contract is silent with respect to the right to cover. Relevant terms in the contract evidence both a box contract and a production contract. Like the typical box contract, the contract between Mason and Petitioner prescribes a number of boxes, specifically no less than 12,000, that are to be delivered pursuant to the contract. However, the typical box contract does not identify the number of boxes to be delivered as "Approximate No. of Boxes" that ranges between 12,000 and 14,000 boxes. Unlike a production contract, the contract does not identify a specific grove as the source of the required grapefruit. Best practice in the industry calls for a production contract to designate the grove by name as well as the number of acres and blocks. However, industry practice does not require a production contract to identify a specific grove as the source of grapefruit. In practice, Mason treated another contract that Mason drafted with a party other than Petitioner as a production contract even though the contract did not identify a specific grove as the source of grapefruit. The absence of a force majure clause in the contract may evidence either type of contract.3 A box contract typically requires the selling dealer to deliver the agreed boxes of grapefruit regardless of weather events, unless stated otherwise in the contract. However, the absence of such a clause may also be consistent with a production contract because "acts of God" are inherent in a production contract. Such acts, including hurricanes, necessarily limit grapefruit production, and a production contract obligates the selling dealer to deliver only the amount of grapefruit produced. The contract between Petitioner and Mason did not contain a penalty provision for failure to deliver the prescribed boxes of grapefruit (box penalty). The absence of a box penalty in the contract evidences a production contract. The contract identifies Petitioner as the "Grower." A grower typically enters into a production contract. A box contract does not limit the source of grapefruit to be delivered, and the selling dealer in a box contract may obtain grapefruit from anywhere in the state. The contract between Petitioner and Mason limits the source of grapefruit to grapefruit grown in Highlands County, Florida. Mason knew that Petitioner sold only grapefruit from groves in Highlands County, Florida, identified in the record as the Clagget Taylor groves. During the 2003 and 2004 crop years, Petitioner sold only grapefruit from the Clagget Taylor groves. Mason received trip tickets and other documentation related to the delivery of no less than 24,000 boxes of grapefruit, all from the Clagget Taylor groves. The boxes of grapefruit delivered during the 2005 crop year came only from the Clagget Taylor groves. Mason received documentation showing the grapefruit came from the Clagget Taylor groves. Ambiguous written agreements are required by judicial decisions discussed in the Conclusions of Law to be construed against the person who drafted the agreement. Mason drafted an ambiguous agreement with Petitioner. The agreement must be construed against Mason as a production contract. Mason owes Petitioner $10,000 for the delivered grapefruit during the 2005 crop year. The terms of the bond make Western liable for any deficiency in payment from Mason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order directing Mason to pay $10,000 to Petitioner, and, in accordance with Subsections 601.61 and 601.65, requiring Western to pay over to the Department any deficiency in payment by Mason. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 August, 2007.
The Issue The dispute here involves the alleged non-payment for watermelons that the Petitioner claims to have sold to the Respondent.
Findings Of Fact The case is being considered in accordance with the provisions of Chapter 604, Florida Statutes, which establishes the apparatus for settling disputes between Florida produce farmers and dealers who are involved with the farmers' products. Lyman Walker, a Florida farmer, contends by his complaint that five loads of watermelons grown and harvested in Florida, were sold directly to Mr. Pagano & Sons, Inc., in the person of Maurice Pagano, on the following dates, by the following types; in the following weight amounts; at the following price per pound, and for the following total price per load: June 2, 1977, small Charleston Gray Watermelons, 51,550 lbs. at .03-1/2, totaling $1,804.00 June 2, 1977, Charleston Grey Watermelons, 47,440 lbs. at .03-1/2, totaling $1,660 June 7, 1977, Charleston Grey Watermelons, 47,850 lbs. at .02, totaling $957 June 7, 1977, Charleston Gray Watermelons, 49,190 lbs. at .02, totaling $983 June 8, 1977, Charleston Grey Watermelons, approximately 46,000 lbs. at .02, totaling $920 Total for all loads $6,325. An examination of the testimony offered in the course of the hearing, supports the Petitioner's contention. The facts in this case also show that Maurice Pagan, acting in behalf of the Respondent gave money to the Petitioner for having the watermelons loaded for shipment. That amount was $2,500, and when deducted from the $6,325 total price leaves a balance owing to the Petitioner of $3,825. The Respondent has not paid the $3,825 which it agreed to pay to the Petitioner and under the facts of the agreement it is obligated to pay the Petitioner. One final matter should be dealt with and that pertains to the approximation of the weight of the June 8, 1977, load. The figure used is an approximation, because the Respondent's representative at the loading in Florida, Phil Pepper, took that load away and failed to return the weight ticket. This caused the Petitioner to have to approximate the weight and the approximation is accepted in determining the amount which the Respondent owes the Petitioner.
Recommendation It is recommended that the Respondent be required to pay the Petitioner $3,825 for watermelons it purchased from the Petitioner. DONE AND ENTERED this 21st day of February, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jon D. Caminez, Esquire 1030 East Lafayette Street Suite 101 Tallahassee, Florida 32301 Maurice Pagano 59 Brooklyn Terminal Market Brooklyn, New York 11236 L. Earl Peterson, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
The Issue The issue in this case is whether Respondent, Mo-Bo Enterprises, Inc., is indebted to Petitioner, Orrin H. Cope Produce, Inc., as alleged in the complaint filed by Petitioner with the Department of Agriculture and Consumer Services dated March 14, 1994.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Cope was a produce broker located in Homestead, Florida. At all times pertinent to this proceeding, Mo-Bo was a purchaser of produce located in Pompano Beach, Florida. Mo-Bo is an agricultural dealer as defined by Section 604.15(1), Florida Statutes. As such, Mo-Bo is obligated to obtain a dealer's license from the Department and to post a surety bond executed by a surety corporation to insure that payment is made to producers for agricultural products purchased by the dealer. At all times pertinent to this proceeding, General Accident Insurance Company of America was the surety for Mo-Bo pursuant to Section 604.20, Florida Statutes. For several years prior to the growing season that began in the fall of 1993, Cope sold produce to Mo-Bo on an intermittent basis. As a result of Mo- Bo's alleged failure to pick up orders and because of its alleged unauthorized price adjustments, there were some disputes between the companies during this period. At the beginning of the growing season in the Fall of 1993, a representative of Mo-Bo contacted Cope about buying cherry tomatoes. Cope agreed to sell cherry tomatoes to Mo-Bo provided the billing disputes that had occurred in the past were avoided. Cope advised Mo-Bo that the parties should agree to a sales price for a shipment of produce before a truck was loaded. The next day, Cope would fax a manifest to Mo-Bo setting forth the terms of the sale, including the price. An invoice would be sent by Cope to Mo-Bo two or three days later. The reason for this delay in sending the invoice was to allow Mo-Bo an opportunity to review the manifest and put Cope on notice of any objections. The delay also allowed the parties to make price adjustments if the market had not settled. Mo-Bo was supposed to immediately notify Cope if the invoice did not reflect the correct price so that the price could be verified and, if a mistake was made, a credit memo would be issued. The price for cherry tomatoes varies according to their color. They are classified from lightest to darkest as follows: breakers, light pinks, pinks, or high color. Cope would determine the color and the condition of the produce at the time the tomatoes were loaded on the truck. If, after receiving the produce, Mo-Bo felt there were quality problems (which would include a dispute as to the color classification), Mo-Bo was required to order an USDA inspection. This requirement for an inspection was discussed between Mo-Bo's buyer and the president of Cope at the beginning of the growing season. In addition, the invoices issued by Cope include the following: "No claims accepted unless supported by USDA inspection within twenty-four hours from arrival and when confirmed by Adjustment Memo from our Sales Office. Notification by mailgram is required." Between December 24, 1993, and January 10, 1994, Cope invoiced Mo-Bo for three shipments of cherry tomatoes. Invoice #1 was for 576 loads of light pink cherry tomatoes at $8.75 per case and 480 cases of pink cherry tomatoes at $8.75 per case, for a total of $9,240. The order was placed and loaded on December 24, 1993. Mo-Bo did not notify Cope of any complaint or dispute with the invoice until approximately sixty days after shipment. On or about February 2, 1994, Mo-Bo returned a marked-up copy of Invoice #1 to Cope along with a check in the amount of $8,414. The changes to the Invoice included a claimed credit of $298 for 149 damages boxes on an unrelated shipment and a reduction in the price per case from $8.75 to $8.25. Cope acknowledges that the $298 credit was authorized. However, the change in the unit price was never authorized by Cope. Cope returned the check sent by Mo-Bo with the marked-up version of Invoice #1 and advised Mo-Bo that the practice of clipping, i.e., unilaterally reducing the price on invoices was not acceptable. Cope advised Mo-Bo that any price disputes had to be raised at the time the manifest was received or, at the latest, when the invoice was received. Mo-Bo's buyer indicated that he would review the situation. As of the date of the hearing in this matter, Mo-Bo had not made any further attempts to pay Invoice #1. After considering all the evidence, it is concluded that Mo-Bo is indebted to Cope in the amount of $8,942 plus interest1 pursuant to Invoice #1. Invoice #2 was for 372 cases of light pink cherry tomatoes at $6.90 per case and for 190 cases of pink cherry tomatoes at $6.90 per case, for a total of $3,877.80. The order was placed on January 8, 1994, and loaded on January 10, 1994. Mo-Bo did not dispute the price or complain about the invoice until approximately one month after shipment. On February 7, 1994, Mo-Bo returned a marked-up version of Invoice #2 to Cope along with a check in the amount of $3,315.80. The change to the Invoice reflected a reduction in price from $6.90 to $5.90 per unit. The change in unit price was never authorized by Cope. Cope refused to accept the price adjustment reflected on the marked-up version of Invoice #2 and returned the check to Mo-Bo. As of the date of the hearing in this case, Mo-Bo had not made any further attempts to pay the Invoice. After considering all the evidence, it is concluded that Mo-Bo owes Cope $3,877.80 plus interest pursuant to Invoice #2. Mo-Bo's buyer testified that he had a verbal agreement with Cope for the lower prices reflected on the marked-up versions of Invoices #1 and #2. This contention is rejected as not credible. In any event, alleged verbal agreements were not consistent with the procedures the parties had agreed upon for doing business. Invoice #3 was for 960 cases of pink cherry tomatoes at $6.25 per case, for a total of $6,000. The order was placed on January 3, 1994, and loaded on January 5, 1994. The truck upon which the tomatoes were loaded was controlled by Mo-Bo. The shipment was sent to New Jersey where it arrived on January 10, 1994. This was an abnormally long shipping time to New Jersey. By the time the tomatoes reached New Jersey, the pink cherry tomatoes had ripened to high color. No explanation was provided for the delay in shipping. Based upon the evidence presented, it is concluded that Mo-Bo should bear the responsibility for any over-ripening that occurred during the extended shipping time. Mo-Bo claims that its customer wanted light pink tomatoes. This contention is rejected as not credible. Both the manifest and the invoice described the shipped tomatoes as "pink." Mo-Bo did not timely and properly object when it received the manifest and/or invoice. On January 10, Mo-Bo's buyer contacted Cope and advised that the cherry tomatoes that had arrived in New Jersey were high color and had been rejected by the purchaser. Cope responded that, since the tomatoes were on the truck for five days, this development was not surprising. Mo-Bo's buyer stated that his customer no longer wanted the cherry tomatoes, but he would try to sell them to another customer. He asked Cope whether it wanted a federal inspection. Cope stated that no inspection would be necessary unless there was going to be a problem in receiving the price as invoiced. No federal inspection was obtained. The cherry tomatoes included in the shipment reflected in Invoice #3 came from three different days of shipments from the same grower. Cope did not receive any complaints from other buyers who received portions of those shipments. Mo-Bo contends that Cope agreed that the transaction would be converted to a consignment rather than a sale. This contention is rejected. Mo-Bo's buyer told Cope he would move the tomatoes and get a good price for them, but Mo-Bo's unilateral attempt to convert the transaction to a consignment was not accepted by Cope and was never confirmed in writing. Mo-Bo delivered 104 cases to its original customer and the remaining 856 cases were sent by Mo-Bo to a second customer at a substantially reduced price. After freight expenses, Mo-Bo claims that it lost money on the transaction. On or about February 7, 1994, Mo-Bo sent a marked-up version of Invoice #3 to Cope showing a zero balance due. As of the date of the hearing, Mo-Bo, has not made any further attempts to pay the invoice. After considering all the evidence, it is concluded that Mo-Bo owes Cope $6,000 plus interest pursuant to Invoice #3. At the conclusion of the hearing, Mo-Bo indicated that it was willing to pay Cope the amounts that were not in dispute without prejudice to Cope's right to collect any remaining amounts that are determined to be owed at the conclusion of this proceeding. There is, however, no proof of record that any such payment has been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order directing Mo-Bo Enterprises, Inc., to pay Orrin H. Cope Produce, Inc., a total of $18,819.80 for the shipments of cherry tomatoes reflected by Invoices #1, #2 and #3, along with interest in accordance with the Invoices. In the event Mo-Bo does not comply with this directive, the surety for the dealer should pay the amount due to the Department for the benefit of the producer in accordance with Section 604.21(8), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of November 1994. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November 1994.
The Issue The issues in this case are whether Respondent committed the acts alleged and violations charged in the Administrative Complaints, as amended1; and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, is the state agency charged with regulating the practice of community association management pursuant to chapters 455 and 468, Florida Statutes. Respondent, Sherry Maycumber Raposo, is licensed in Florida as a community association manager (CAM), having been issued license number CAM 39662. At all times material to this proceeding, Respondent was the CAM for Turnberry Reserve Homeowner’s Association, Inc. (Turnberry Reserve). Respondent provided CAM services to Turnberry Reserve through Management 35 Firm, Inc., a company she owned. Records Requests Petitioner charges Respondent with the failure to provide certain association records requested by Turnberry members Luz Franco, Maria Napolitano, and Oshmy Barbosa. Ms. Franco and Ms. Napolitano submitted records requests to Respondent on identical forms requesting the following records: Financial Reports, reviews and audits for the past three (3) years. Itemized and detailed records of all receipts and expenditures. 2018 & 2019 minutes of all meetings of the board of directors & members. Bids obtained over the past 12 months for any work to be performed. Management 35 association management agreement. Security service contract. Current copy of all contracts to which the association is a party to. Ms. Franco’s records request is dated May 10, 2019, and Ms. Napolitano’s records request is dated May 24, 2019. Respondent testified, credibly, that all of the records requested were available for inspection on the Turnberry Reserve website, and that individuals were directed to the website to obtain these documents when any such request was received. Respondent’s testimony was corroborated by Sandra Diaz and Cliffie Kennedy, former board members of Turnberry Reserve. Ms. Diaz was a Turnberry Reserve board member from 2016 through 2018, and Mr. Kennedy was a Turnberry Reserve board member from 2019 through 2020. Ms. Diaz and Mr. Kennedy testified that the official records of Turnberry Reserve, including the latest financial reports and a copy of the contract with Management 35 Firm, Inc., were maintained on the Turnberry Reserve website as a matter of course, and were available for member inspection through the website. Ms. Franco and Ms. Napolitano testified that their access to the Turnberry Reserve website was suspended for non-payment of fines levied against them by the Turnberry Reserve board, leaving them unable to access the records they requested. Respondent testified that the Turnberry Reserve board suspended member access to their individual financial ledgers when fines were delinquent, but did not suspend access to official association documents maintained on the website. Respondent’s testimony was corroborated by Ms. Diaz and Mr. Kennedy, and is accepted where it conflicts with the testimony of Ms. Franco and Ms. Napolitano. The records requested by Ms. Franco, Ms. Napolitano, and Mr. Barbosa were available to them on the Turnberry website. As such, Respondent did not delay or deny access to association records. Attempt to Videotape a CEC Meeting Ms. Napolitano requested a meeting before the Turnberry Reserve Covenant Enforcement Committee (CEC) to appeal a fine that had been levied by the Turnberry Reserve board. Ms. Napolitano’s meeting before the CEC was held on August 31, 2019. The participants at the meeting were the three Turnberry Reserve homeowners who were appointed to serve on the CEC, Respondent, and Ms. Napolitano. No other Turnberry Reserve members were allowed to attend. The CEC members did not serve on the Turnberry Reserve board, no Turnberry Reserve board members attended the CEC meeting. Ms. Napolitano attempted to videotape the CEC meeting on her cell phone and was told by Respondent that she was not allowed to do so. Ahmed Elwan, a member of the CEC, testified that the CEC asked that the meeting not be videotaped because the appeals by individual members who had been fined were private meetings and the CEC did not want the meetings posted on social media. Mr. Elwan testified that the CEC voted to reschedule the meeting because Ms. Napolitano became irate and started yelling when she was told she could not videotape the meeting. Mr. Elwan’s testimony was credible and is accepted. Article III, section 9 of the Turnberry Reserve bylaws states, in pertinent part, that “[a]ny Lot Owner may tape record or videotape meetings of the Board of Directors and meetings of the Members.” Petitioner contends that Ms. Napolitano had a right to videotape her meeting before the CEC because it was a special meeting of the association members and therefore constitutes a meeting of the members. The Turnberry Reserve bylaws authorize the board to appoint a committee, like the CEC, to carry out association business. The CEC meeting was not a meeting open to all members; it was a private meeting between Ms. Napolitano and the three unit owners appointed by the board to serve on the CEC. The CEC meeting was not a meeting of the Turnberry Reserve board, because none of the CEC members served on the board. Thus, the CEC meeting was not a meeting of the board or a meeting of the members, and Ms. Napolitano had no right to videotape the CEC meeting under the Turnberry Reserve bylaws. Petitioner also charges Respondent with making a “deceptive, untrue, or fraudulent representation” because she told Ms. Napolitano that she could not videotape the CEC meeting. As found above, the Turnberry Reserve bylaws did not confer any right to videotape a CEC meeting, and this charge was therefore unproven for this reason alone. Candidate Forms for 2018 Annual Meeting Petitioner contends that Respondent failed to send out candidate forms soliciting candidates for the 2019 Turnberry Reserve board, resulting in the cancellation of the 2018 annual meeting which was to be held to elect the 2019 Turnberry Reserve board. Petitioner alleges this failure constitutes the failure to serve as a liaison between the Turnberry Reserve board and unit owners and tampering with the Turnberry Reserve 2018 annual election. Respondent testified that candidate forms soliciting candidates for the 2019 board were mailed to all 373 Turnberry Reserve unit owners in advance of the 2018 annual meeting. Ms. Diaz, Mr. Elwan, and Mr. Kennedy corroborated Respondent’s testimony, stating that they all received candidate forms in advance of the 2018 annual meeting. There was no evidence to the contrary. Ms. Napolitano testified that she does not know whether anyone returned candidate forms to Respondent in advance of the 2018 annual election. Ms. Franco testified that she had received candidate forms in years past, but could not recall whether she received a candidate form in advance of the 2018 annual election. Mr. Barbosa was not asked about the candidate form. The testimony of Respondent, Ms. Diaz, Mr. Elwan, and Mr. Kennedy was credible and is accepted. Respondent mailed candidate forms to the Turnberry Reserve unit owners in advance of the 2018 annual election. Respondent did not fail to serve as a liaison between the Turnberry Reserve board and unit owners and did not tamper with the 2018 annual election.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaints at issue in this consolidated proceeding. DONE AND ENTERED this 13th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Sherry Maycumber Raposo 4067 Longworth Loop Kissimmee, Florida 34744 James C. Richardson, Esquire Department Business and Professional Regulation 2601 Blairstone Road Tallahassee, Florida 32399-6563 David Axelman, General Counsel Office of the General Counsel Department Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 S BRIAN A. NEWMAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2021. Eddy Laguerre, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Krista Woodard, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 Julie I. Brown, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202
The Issue The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the second amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Gary Lenczyk, held teaching certificate number 414678 issued by the Department of Education. The certificate covered the areas of mathematics, chemistry, physics and substitute teaching and was valid through June 30, 1994. When the events herein occurred, respondent was employed as a science teacher at Bronson High School (BHS) in Bronson, Florida. The school is a part of the Levy County School District. In this case, petitioner, Doug Jamerson, as Commissioner of Education, seeks to discipline respondent's teaching certificate for numerous alleged violations of the law. There is no evidence that respondent has been disciplined by petitioner on any prior occasion. Three days before the beginning of school year 1992-93, respondent was hired to teach at BHS. Among other things, he taught algebra II, earth science, physics and physical science. Based partly on conduct which forms the basis for the second amended complaint, respondent was suspended by the local school board from his teaching position on December 8, 1992. He later resigned from his position on April 26, 1993. Except for one charge, the second amended complaint stems from events which allegedly occurred during the first part of school year 1992-93. The complaint includes allegations, some duplicative in nature, that (a) respondent called eleven students such names as "liars," "dumb," and "punk," he characterized their questions as "stupid," and he told them to "shut up," (b) he "violently" yelled at eleven students and at least four staff members, (c) he called ten students names and belittled and disparaged them to other students and parents in their absence, (d) he called other teachers and staff "bitch," as well as other disparaging names, (e) he told at least ten students that he was "prejudiced," (f) he made "inappropriate sexual comments" to at least ten students, (g) he asked at least ten students to lie if they were asked about the foregoing comments, (h) he engaged in "violent arguments and screaming at his peer teachers and fellow teachers," and (i) he refused to answer questions from at least ten students and ignored their requests for help. The complaint further alleges that by virtue of the foregoing conduct, respondent's effectiveness as a teacher was seriously impaired. Finally, the complaint alleges that on August 23, 1990, respondent was arrested in Gainesville, Florida, for trespass after warning, disorderly conduct and resisting an officer without violence in conjunction with his refusal to be searched before entering the Alachua County Courthouse. The complaint goes on to allege that he later entered into a deferred prosecution agreement and the charges were dismissed. The issuance of the complaint prompted respondent to request a hearing. The Courthouse Incident On the morning of August 23, 1990, respondent entered the county courthouse in Gainesville, Florida. Pursuant to a county ordinance, all persons entering the courthouse were required to pass through a metal detector and submit to a search. Sgt. Yates, an Alachua County deputy sheriff who supervises courthouse security, heard a "heated" discussion near the metal detector and observed respondent in a conversation with two other deputies demanding to know their authority for conducting a search. Respondent told them that his father was a judge, and he did not have to be searched before entering the courthouse. When told by Sgt. Yates that he would have to be searched or leave the courthouse, respondent refused to do either. He was then arrested and charged with trespass after warning. When the deputies were forced to physically restrain him, respondent was also charged with disorderly conduct and resisting an officer without violence. All charges were misdemeanors. On November 7, 1990, respondent entered into a deferred prosecution agreement in which the prosecution of the charges was deferred for six months conditioned on respondent fulfilling the terms of the agreement. When the terms were satisfied by respondent, all charges were dismissed. Respondent acknowledged that he was arrested, but says he did not contest the charges because it was his word against that of three deputies. Even so, the factual allegations in paragraphs 3 and 4 of the amended complaint have been established. School Year 1992-93 Calling students names Until his suspension from BHS in December 1992, respondent taught earth science, physics, algebra II and physical science during the first part of school year 1992-93. Paragraph 5.a. of the complaint alleges that respondent called at least eleven students such names as "liars," "stupid," "dumb," "ignorant," "bitch," and "punk," called their questions "stupid," and told them to "shut up." Paragraph 5.c. further alleges that respondent called at least ten students "names" and belittled and disparaged students "to other students and parents in their presence." To support these allegations, petitioner presented the testimony of three former students, T. C., R. W. and Jason Ruppert. One student in his algebra II class was T. C., then a sophomore. According to T. C., respondent called her a "spoiled brat" after class one day when she refused to erase the blackboard. She had declined to do so for fear of being late to the next class. T. C. contended that a "couple of students" in her next period class, only one of whom was identified but did not testify, had heard the remark, and that it was "embarrassing" to her. The testimony as to this incident is accepted as being credible. On another occasion, T. C. says respondent called K. T., a male student in the same class, "stupid" or "dumb," and he would call other unidentified students "stupid" and then laugh about it afterwards in front of the entire class. However, another student in the same class, B. G., never heard any of these comments, and he specifically denied hearing K. T. being called a name. Respondent also denied that he made the remarks. The testimony of B. G. is accepted as being more credible on this issue. R. W. was a seventh grade student in respondent's earth science class during the first semester of school year 1992-93. In assessing the credibility of the student's testimony, it is noted that R. W. conceded she disliked respondent from the first day of class. She claims that on one occasion during class respondent called her a "liar," and on another occasion he called her "stupid" and "ignorant." However, she could not recall the circumstances surrounding the latter incident. Another student in the same class, B. B., denied that any of these events occurred, and given R. W.'s admitted bias towards respondent, her testimony is not accepted as being credible. A third student, Jason Ruppert, now graduated, was in respondent's physics class during school year 1992-93. The class had only eight students. Jason claimed that respondent sometimes called students a "liar" when they gave excuses for not having done their homework, and he corroborated T. C.'s contention that respondent called K. T. "stupid" in front of the class. However, T. was not a student in the physics class, and thus Jason could not have personal knowledge as to this latter issue. Another student in the same physics class, J. H., denied hearing respondent call anyone a name. He did agree that respondent sometimes told the class to "shut up" when it became loud or unruly but he did so in the same manner as did other BHS teachers. Finally, a data entry operator in the BHS guidance office stated that on one occasion, she observed respondent acting "inappropriately" with a student in a classroom when she was delivering a message. She could not recall the date, the class, or the particular student. Accordingly, her testimony has been discounted. In summary, the only proven allegation in paragraphs 5.a. and c. is that respondent told a student in the presence of one other student (her best friend) that she was a "spoiled brat." All other allegations should be dismissed. Violently yelling at students and staff Paragraph 5.b. of the complaint alleged that respondent engaged in "violently yelling" at eleven students and four staff members, and he was guilty of "intimidating, harrassing, embarrassing and threatening both, and using profanity in front of these students and staff." Paragraph 5.h. goes on to allege that respondent engaged "in violent arguments and screaming at his peer teachers and fellow teachers." To support these allegations, petitioner presented evidence concerning three incidents, two involving respondent's peer teacher in October 1992, and the third occurring at a faculty staff meeting in August 1992. The first incident occurred during the week of October 19, 1992, and involved Marilyn Pelletti, the former chairperson of the BHS science department and respondent's peer teacher during school year 1992-93. Ms. Pelletti was dissatisfied with respondent's performance, particularly since respondent had made insufficient progress in his science class by mid-October and was late in getting grades to the office for some or all of his classes. On Wednesday, October 21, 1992, she went to respondent's classroom during lunch hour when it was empty and presented respondent with a professional orientation program establishing certain goals. Respondent complained that the goals were too lofty and that the faculty was out to get him. Although Ms. Pelletti acknowledged that this was purely an academic argument, she says respondent began raising his voice until he was yelling, and his eyes enlarged in a threatening manner. She says she feared for her safety and backed out of the room and left when the bell rang. Ms. Pelletti immediately returned to her classroom in a "shaken" state and told an inquiring aide that she was all right. The next morning, respondent came to Ms. Pelletti's classroom around 7:35 a.m. and "started the same argument over again." This time, it lasted about fifteen or twenty minutes, and respondent engaged in "yelling and screaming" until Ms. Pelletti finally got him out of the classroom. She concedes that respondent never made any threatening remarks, and the entire confrontation was "argumentative" in nature. No profanity was used by respondent during either confrontation. Although the two arrived in the school parking lot the following morning at the same time, and respondent attempted to again broach the subject, no continuing argument occurred. The incident on October 21, 1992, was corroborated by a school data entry operator who heard loud voices and observed respondent approaching Ms. Pelletti in an "aggressive" manner, shaking his finger in her face and "yelling" in an unprofessional manner. Jason Ruppert, a student passing in the hallway at the same time, also described respondent as having a "raised voice" during the argument. In addition to the above incidents, a witness described respondent as being "argumentative" and "aggressive" when she explained grade book and absentee record policies to all teachers at a staff meeting at the beginning of the school year. There is no evidence, however, that he "violently" yelled or screamed at her, or that he otherwise used inappropriate language. There is less than clear and convincing evidence that respondent engaged in violent arguments with students, or that he was guilty of intimidating, harrassing, embarrassing, or threatening them, or that he used profanity in their presence. Calling other teachers and staff a "bitch" An allegation is next made in paragraph 5.d. of the complaint that respondent called at least four "other teachers and staff 'bitch' and other names belittling them and disparaging them to students and parents in their absence." The only testimony on this subject came from T. C., a former student, who recalled that, while talking with respondent at his desk one day, he called another teacher, Ms. Whitmore, a "puta," a Spanish word. When T. C. asked respondent if he really knew what that word meant, respondent replied "she's a real bitch." Although no other students heard these remarks, the testimony is deemed to be credible. Statements that respondent was prejudiced Paragraph 5.e. of the complaint alleges that respondent told at least ten students that he was "prejudiced." The only testimony concerning this allegation came from R. W., who was a seventh grader when certain alleged remarks occurred. According to R. W., respondent told his class on one occasion that he was "prejudiced." Assuming this to be true, the context in which the remark was made was not given, and thus the testimony has little, if any, probative value in resolving the issue. R. W. also suggested that respondent selected only white students to participate in classroom activities, but this testimony was adequately refuted by two former African-American students who testified that they perceived no racial bias or prejudice on respondent's part while attending his classes. Accordingly, it is found that there is a lack of evidence to support this charge. Making inappropriate sexual comments The complaint further alleges in paragraph 5.f. that respondent made "inappropriate sexual comments to (at least ten) students about his sexual past and sex in general." Two students offered testimony on this issue. According to R. W., who was a seventh grader at the time, respondent grabbed his crotch in class one day. When asked by a student what he was doing, he responded "Why don't you try it?" The context in which this incident occurred was not given. Another student in the same class denied that the incident even occurred. The allegation is accordingly not deemed to be credible. On another occasion, T. C., a former student, says she raised her hand to volunteer to answer a question and was told by respondent that "the only reason you want to go to the board is because you want the other students to look at you." Even if such a statement was made, it would not constitute an inappropriate sexual comment. Accordingly, there is less than clear and convincing evidence to sustain this charge. Asking students to lie Although paragraph 5.g. of the complaint alleges that respondent asked at least ten students to lie about his comments, if asked to testify about the same, there was no evidence to establish this misconduct. Refusal to help students or answer their questions The charge is also made in paragraph 6. that respondent "refused to help (at least ten) students and ignored students' questions." As to this charge, the only credible testimony on the issue came from J. H., a former student, who recalled that respondent would routinely defer answering a student's question until the end of the class if it did not relate to the subject matter then being taught. Respondent would, however, answer the questions at the end of the period. This was corroborated by respondent's testimony. Further testimony by a data entry operator that, while delivering messages to respondent's classroom, she observed him ignoring students' questions is deemed to be too vague and nonspecific to have probative value. Accordingly, it is found that the evidence is less than clear and convincing that respondent refused to help students or answer their questions as charged in the complaint. Loss of Effectiveness Finally, paragraph 8. of the amended complaint alleges that, by virtue of the misconduct described in the complaint, respondent has lost his effectiveness as a teacher in the school system. This allegation was supported by testimony from respondent's former principal at BHS during the fall of 1992. Based on a number of complaints received from parents, students and teachers, and after an internal investigation was performed, the principal issued a letter of reprimand to respondent on October 26, 1992. Later, a recommendation to dismiss respondent was made. Without contesting this proposed action, respondent resigned from the school effective April 26, 1993. The former BHS principal opined that, assuming "some or all" of the alleged charges were true, respondent's effectivness as a teacher at BHS had been seriously impaired. He did not testify with any specificity, however, as to whether the minor charges proven here were so serious as to impair respondent's effectiveness as a teacher. C. Miscellaneous Respondent presented the testimony of several teaching colleagues at BHS who never observed any improper conduct on respondent's part. It was also established that respondent occasionally substituted as a teacher at Newberry High School and Santa Fe Junior College (SFJC). The chairman of the SFJC math department described respondent as a good teacher, and that while he was vigorous in arguing for his beliefs, he always conformed to school policy and regulations. Similar testimony was given regarding respondent's conduct at Newberry High School. Evidence by both parties concerning respondent's teaching methods and competence as a teacher has been disregarded as being irrelevant since this subject is not raised in the amended complaint. According to petitioner's exhibit 2, respondent's teaching certificate was issued on December 17, 1992, or after the events herein occurred. Although petitioner failed to clarify under what authority respondent was teaching during the fall of 1992, respondent acknowledged during the hearing that he taught during that year and prior years under a teaching certificate of some type, and it may be fairly inferred that BHS would not have hired respondent had he not been properly licensed by the state or authorized to teach in the public schools.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order finding respondent guilty of violating Subsection 231.28(1)(h), Florida Statutes, Subsection 231.28(1)(c), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code, as more specifically explained in the conclusions of law, for which he should be barred from reapplying for certification for three months. In all other respects, the charges against respondent should be dismissed. DONE AND ENTERED this 22nd day of February, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0151 Petitioner: 1-2. Partially accepted in finding of fact 1. 3-6. Partially accepted in findings of fact 4 and 5. 7-10. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Partially accepted in finding of fact 20. Partially accepted in finding of fact 23. 14-17. Partially accepted in finding of fact 15. 18-19. Partially accepted in finding of fact 16. 20. Rejected as being unnecessary. 21-24. Partially accepted in finding of fact 18. 25. Partially accepted in finding of fact 25. 26-27. Partially accepted in finding of fact 17. 28-29. Partially accepted in finding of fact 11. Partially accepted in finding of fact 17. Partially accepted in finding of fact 11. Rejected as being hearsay. Rejected as not being credible. See number 11. Rejected as being unnecessary. 35-40. Partially accepted in finding of fact 10. Partially accepted in finding of fact 23. Partially accepted in finding of fact 21. Covered in preliminary statement. 44-48. Partially accepted in finding of fact 26. 49. Rejected as being contrary to the evidence. Respondent: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 2. 5-22. Partially accepted in findings of fact 4-6. 23-31. Covered in preliminary statement. 32-41. Partially accepted in findings of fact 7-13. 42-51. Partially accepted in findings of fact 14-19. 52-57. Partially accepted in findings of fact 7-13. 58-60. Partially accepted in finding of fact 20. 61-63. Partially accepted in finding of fact 21. 64-66. Partially accepted in findings of fact 22 and 23. 67-68. Partially accepted in finding of fact 24. 69-72. Partially accepted in findings of fact 14-19. 73-76. Partially accepted in finding of fact 24. 77-84. Partially accepted in findings of fact 26 and 27. 85-87. Rejected as being unnecessary. 88. Partially accepted in finding of fact 10. 89. Partially accepted in finding of fact 28. 90. Rejected as being irrelevant. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible and persuasive evidence, unnecessary for a resolution of the issues, a conclusion of law, cumulative, or subordinate. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killearney Way, Suite G Tallahassee, FL 32308 Mr. Gary Lenczyk 4716 S. W. 47th Way Gainesville, FL 32608-4808 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
The Issue The issue in this case is whether Respondent is indebted to Petitioner relating to the lease of farmland, management of farmland, and the sale of strawberries pursuant to various oral contracts.
Findings Of Fact Tonya Gladney is an individual doing business as Tonya Gladney Farms, an entity dedicated to the business of farming in south central Florida. Gladney learned the farming business from her father. Gladney had been around strawberry farming her whole life and decided to engage in the business independently starting with the 2006-2007 growing season. TGF is a fledgling operation and does not own all of the land, equipment, or resources necessary to actively operate and maintain a farm. That is, TGF found it necessary to lease land from various landowners and to use that land for farming purposes. Further, TGF needed to rent certain farming equipment in order to prepare the leased lands for farming. G&S Melons, LLC, is a Florida limited liability company whose managing member is John Glen Grizzaffe. G&S is a farming operation which has been in existence since 1999. Like Gladney, farming was in Grizzaffe's blood, and his family had been farming since the 1920's. G&S started out as a grower of watermelons, but has grown berries, melons, squash, cucumbers and other produce as well. In recent years, G&S purchased 25 acres of land to be used primarily for strawberry farming, and that area of its business has grown considerably. In 2006, when Grizzaffe and Gladney first started doing business, TGF was G&S's only strawberry producer. G&S markets its produce to several grocery store chains, including SuperValue, Acme, Shaws, Jewel Foods, Food Lion, Sweet Bay, Albertsons and others. Grizzaffe's experience and business relationship with the various chains have allowed him to become a broker of goods produced by other farmers. As a broker, Grizzaffe has experience dealing with buyers and knows how to negotiate the best prices for products in his custody. In 2007, G&S was subleasing some land from C.W. Stump who was leasing the land from its owner, Al Repita. The land, known as Lightfoot Road Farm ("Lightfoot") is located in Wimauma, Hillsborough County. Grizzaffe was paying $325 per acre for the Lightfoot property, which was irrigated, but did not have overhead sprinklers. Grizzaffe held a year-to-year sublease on the property, primarily because Repita had the land up for sale. Grizzaffe expected to retain his lease for the next two or three years, but did not have any long-term expectations. The most credible evidence indicates that Lightfoot encompasses approximately 35 acres. After initial discussions between the parties concerning Lightfoot, Gladney and Grizzaffe met at the farm to further discuss the possible sublease by TGF. Gladney indicated she wanted to grow strawberries and Grizzaffe agreed to sublease the land to her. The sublease agreement was not reduced to writing, nor are there any written terms or conditions associated with the sublease.1 Gladney was unclear as to her understanding of what the terms of the lease were supposed to be. She believed Lightfoot was between 20 and 25 acres in size and would be available for at least two to three years, maybe up to five years. Gladney's testimony was not clear as to what she believed the lease amount to be, but thought $200 to $225 per acre would be about right "if there was any charge." Gladney did not provide any rationale as to why she should not be charged for subleasing the land. Grizzaffe's testimony that he was subleasing Lightfoot to TGF for $325 an acre--exactly what he was paying for it--is credible and makes the most sense in light of all the facts. The size of Lightfoot was a major point of contention between the parties. Inasmuch as there was no written lease, the parties' understanding can only be gleaned from their testimony. Gladney opined the land was 20 to 25 acres based on the fact that TGF had purchased enough plastic to cover 25 acres. Three rolls of plastic (2,400 square feet) would cover one acre and TGF had purchased 75 rolls. It takes 2,000 strawberry plants to cover one acre, and TGF purchased 50,000 plants. Mathematically, Gladney determined there was 25 acres of farmable land at Lightfoot. Grizzaffe's opinion was based on the following evidence: Net acreage is based on 43,560 square feet-per-acre divided by the row center. Strawberries are planted at a distance of four feet between the center of each row, leaving only 10,890 net square feet for planting on the Lightfoot acreage. This equates to 29.8 row acres, plus space in between the rows at Lightfoot, the dirt between the beds, the ditches, and the roadways around the field. So, although there are 20-to-25 acres of ground actually planted, the total gross acreage is higher (in this case approximately 35 acres). Farmland is generally leased by calculating the gross acreage, not merely the part of the land which can be farmed.2 Gladney advised Grizzaffe that between the Lightfoot farm and another farm she was working, G&S could expect between 50 and 60 acres of berries. Such calculations are incredibly important for the effective supply of berries to customers by the broker. Inasmuch as Lightfoot had only drip irrigation available at the time of the subject sublease and because overhead irrigation was necessary to grow strawberries, it was understood between the parties that an overhead irrigation system would have to be installed.3 A major dispute between the parties concerned who would be responsible for installing the overhead irrigation system. Inasmuch as Gladney believed the lease to be less than $225 per acre, it is doubtful she was leasing land with a sprinkler system. Sprinklered farmland usually rents for considerably more, i.e., in the neighborhood of $1,000 per acre. Gladney maintains that Grizzaffe specifically promised to pay for any overhead irrigation system installed on Lightfoot. This made sense to Gladney, because she believed Grizzaffe was going to be able to extend his current lease to a five-year lease. It takes a few years farming a parcel to recoup the expense of an overhead irrigation system. Grizzaffe, on the other hand, knew his lease, which was on a year-to-year basis, might only last two or three more years and that there was no promise of an extension. In fact, the farm is currently being offered for sale, meaning no long- term lease would be available to G&S. Grizzaffe told Gladney that she needed to install the overhead irrigation system in order to assure a quality product, but made no promise to pay for it. While TGF was preparing the farm to plant strawberries for the upcoming season, an overhead sprinkler system was installed. The system was apparently paid for by Gladney, but she claims to have used money furnished by Grizzaffe. There are, however, no written receipts or cancelled checks that indicate a payment by G&S for the sprinkler system. Certain bills or invoices addressing irrigation were generated by James Irrigation, Inc., the company hired to install the overhead system. The James Irrigation statements of account were addressed to Gladney. Other invoices concerning the irrigation system were issued by Gator Pipe and Supply and indicated they were shipped to "Gladney Farms." Gladney made at least one payment of $45,000 directly to James Irrigation as documented in the exhibits admitted at final hearing. The total cost of the overhead irrigation system was approximately $62,000. There are no checks from G&S or Grizzaffe to Gladney or TGF designated as payment for a sprinkler system, nor was there any credible testimony that Grizzaffe would pay for the Lightfoot sprinkler system. When Gladney ceased operations on Lightfoot, she did not take the Rainbird sprinkler heads or pvc pipes with her. In fact, Gladney did not take up the plastic used in growing the strawberries, although that is common practice when leasing land from another producer. Gladney did not, therefore, assert an ownership interest in the sprinkler system. The tenor of the cessation of business between the parties at that time (each seemed angry at the other) may account for Gladney's failure to clean up the Lightfoot property and/or retrieve the sprinkler system. However, Grizzaffe does not assert ownership of the sprinkler system either. It apparently belongs to the owner of the land. The next major point of contention between the parties was the price that G&S was charging TGF to act as intermediary between the grower (TGF) and the buyer (food store chains or others). Gladney contends that G&S agreed to handle and pre-cool all of TGF's berries at the flat rate of $1.00 per box. Gladney further contends that at least one other broker had accepted her berries at the same price. Grizzaffe counters that while his business would not be profitable giving a $1.00 flat rate, some brokers may be able to offer that to growers for ad hoc purchases. However, for a regular arrangement wherein a grower is providing a broker most of its product, that would not be feasible. Grizzaffe maintains the charge for TGF berries was the same charged to all other growers, i.e., 50 cents per box for pre-cooling the berries and 10 percent of the amount of the sale. G&S may charge a slightly higher pre-cool fee based on exceptional circumstances, but 50 cents is the norm. The purchase orders introduced into evidence by G&S include a brokerage fee of 10 percent and a pre-cool fee of 50 cents per box, comporting with his version of the oral contract. Again, the agreement between the parties as to the charge for handling berries was not reduced to writing. The more credible evidence supports G&S's position. TGF alleges that G&S misrepresented the amount it would sell TGF's product to buyers for and that G&S did not sell for the agreed-upon price. Gladney expected her berries to be sold at the USDA Market Price (to be discussed further below). Some purchase orders issued by G&S indicate that TGF berries were sold for several dollars under the USDA Market Price. The USDA Market Price is calculated by USDA utilizing the daily sale of berries by all growers in an area. The average price range is printed in a USDA publication and made available to growers, brokers and buyers as a guideline for negotiating prices in the future. The USDA publication apparently comes out almost daily, setting out the prices paid to local growers on the previous day or days. It is, therefore, a recap of what has been paid, not a projection of future prices to be paid. There is also a less structured means of establishing the "market price." This method involves local growers talking to each other and determining what each had been paid for their product on any given day. Growers often discuss market price, but seldom distinguish between USDA Market Price and the common market price. Gladney maintains that she spoke to Grizzaffe regularly and that he always assured her that her berries would be getting the market price or higher. She seems to believe that Grizzaffe was talking about the USDA Market Price. However, it is generally impossible for any broker to guarantee a price for a product; that is strictly a matter of supply and demand at any given point in time. However, Grizzaffe would benefit from charging the highest price he could get, because he was getting a percentage of the total sale. It is clear from the evidence that TGF berries sometimes were sold at an amount several dollars less than the USDA Market Price. There are reasonable explanations for that fact. For example, if TGF berries were rejected by one buyer, they would be sold as lower quality berries to another buyer who had need for that product. If there was a very high supply, but low demand, at the time the berries were harvested, a lower price may result. However, other than for those exceptions, G&S sold TGF berries for the same price that G&S sold other growers' berries; and due to his long-standing relationship with several chains, G&S often got the very best price in the area. One other price issue (although not largely pertinent to the instant dispute) concerned pre-selling berries by establishing an "ad price" for the product. An ad price was essentially an agreed-upon price well in advance of the actual purchase. This was done in order to allow stores the opportunity to advertise the price of berries in the newspaper or other circulars because the store would know the price well enough in advance. For example, the broker and buyer may agree to a price of $14 per box for berries to be delivered on a date certain. When that date came, the market price might be $12 per box or $16 per box, but the buyer would only pay the ad price ($14 per box). So, some of the TGF berries may have been sold at below USDA Market Price because they were part of an ad price arrangement. Gladney contends she was underpaid for supervising another farm for Grizzaffe. There is no documentation whatsoever as to the agreement between the parties. The farm was approximately 25 acres, which would produce about 2,000 to 2,500 flats of berries to the acre (or 50,000 to 62,500 flats). Gladney maintains she was supposed to receive $.25 a flat for berries produced on that farm as her management fee. No accounting of berries produced on the farm was presented into evidence. Gladney received a check for $10,000 from Grizzaffe to pay the management fee for the farm. Gladney said that $10,000 would be a "low amount" for her work, but did not substantiate that more was actually owed. Gladney protested offsets from her earned fees that related to certain products and materials, specifically fuel and packing materials. However, the bills and receipts presented by Grizzaffe justify the materials based on the number of berries produced and packed by Gladney for sale by Grizzaffe. The offsets appear reasonable and consistent with normal farming practices. G&S accurately and appropriately billed TGF for materials, including pallets, eggshells (small cartons used to ship berries), and fuel. The charges for those materials are applied to and deducted from TGF's profits on the berries delivered to G&S. The last primary point of contention between the parties is whether or not G&S loaned money to TGF and, if so, how much was loaned, the interest rate, and whether the loan was repaid. Again, there is no written loan agreement between the parties. According to Grizzaffe, G&S agreed to lend TGF up to $50,000 during the 2007-2008 growing season at a flat ten percent interest rate. The loan was offered in recognition of the fact that Gladney was just beginning her farming practice and would need some assistance on the front end. G&S expected to recoup its loan as TGF began delivering berries for sale. Gladney maintains that there was no loan to TGF or herself from Grizzaffe. Rather, she states that any checks for other than produce were G&S's payments for the promised irrigation system. G&S issued a number of checks to Gladney identified as "farm advance" or "loan" or "payroll." These checks were issued prior to the first sale of TGF berries by G&S. That is, TGF was not yet entitled to a check from the sale of proceeds at the time the checks were issued. Grizzaffe says the purpose of the checks was to advance money to Gladney so that she would have the funds necessary to rent equipment to prepare the land for planting, to install the sprinkler system, to pay her workers, and to cover her farming costs before proceeds from sales starting coming in. The first check representing sale of TGF berries by G&S was issued to Gladney on February 7, 2008 (although TGF had started delivering berries in November 2007). It is clear that Grizzaffe was providing money to Gladney before money had been earned. Whether it is called an advance or a loan, the net effect is the same. The total amount loaned by Grizzaffe to Gladney was far in excess of the agreed-upon $50,000. As TGF experienced unforeseen start-up expenses, Grizzaffe would write a check to help them meet any shortfall. These checks, which Gladney characterized as payments for the irrigation system, far exceed the cost of that system. The most credible evidence is that Grizzaffe fronted money to Gladney in the amount of $203,717.00. Further, G&S's charges to TGF exactly reflect a ten percent charge for certain checks, clearly evidencing the loan as described by Grizzaffe. Platte River Insurance Company ("Platte River") is a foreign insurance company authorized to do business in Florida. Platt River bonded G&S as required under Section 604.20, Florida Statutes (2008).4 Platte River did not make an appearance or file an answer to the Complaint filed by Petitioner in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services dismissing the Petition of Tonya Gladney, d/b/a Tonya Gladney Farms. DONE AND ENTERED this 23rd day of February, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2009.
