Findings Of Fact Respondent, Lincoln A. Herreid, was, at all times material hereto, licensed to practice land surveying in the State of Florida, having been issued license number 3015. At issue in these proceedings are three surveys, which Respondent admits he performed, signed and sealed, to wit: A survey of the real property located at 9 East Lucy Street, Florida City, Florida; a survey of a portion of the real property located in Florida Fruitland Company's Subdivision No. One, Dade County, Florida; and, a survey of the real property located at 20301 S.W. 117 Avenue, Miami, Florida. 9 East Lucy Street Survey On December 17, 1983, Respondent signed and sealed a Sketch of Survey" for Lots 1 and 2, Block 1, Hays Subdivision, Plat Book 55, Page 53, Public Records of Dade County, Florida, commonly known as 9 East Lucy Street, Florida City, Florida. The Lucy Street property is rectangular in shape, and abuts streets on its north, east and west sides. The survey shows only one angle and no bearings, fails to reflect the measured distance to the nearest intersection of a street or right-of-way, and fails to reflect whether any monument was found, or set, at the southeast corner of the property. The evidence establishes that no monument was found, or set, at the southeast corner of the property. Respondent avers that no monument was set because debris, composed of paints and chemicals, preempted the area and precluded the setting of a monument. However, no offset witness point was set, nor did the survey reflect why a monument had not been set. Florida Fruitland Company Subdivision Survey On February 24, 1984, Respondent signed and sealed a "Waiver of Plat," a survey of a portion of Tract 21, Section 15, Township 53 South, Range 40 East, of Florida Fruitland Company's Subdivision No. One, Plat Book 2, Page 17, Public Records of Dade County, Florida. The Waiver of Plat shows only one angle and no bearings, indicates the four corners of the property by "Pipe," without reference to whether the pipe was set or found, fails to reflect the measured distance to the nearest intersection or right-of- way, fails to reference the source documents for the legal description of the property, and fails to provide vertical datum and benchmark descriptions. Further, the survey incorrectly positioned the property, reflected inaccurate boundary measurements, and established an incorrect elevation. The property, which is the subject of the Waiver of Plat, is rectangular in shape, zoned commercial (no side set- backs required), and its front (the northern boundary of the property) abuts Northwest 70th Street, between N.W. 82nd Avenue and N.W. 84th Avenue, Miami, Florida. The evidence establishes that the north/south dimensions of the property, as reflected by Respondent's survey, were overstated by 2.1' on the west boundary line, and 2.01' on the east boundary line. Although Respondent correctly depicted the correct distances of the east/west property line, the positioning of that line in relation to the fractional line was in error by .12', and the northwest and northeast corner placements were in error by .24' and .20', respectively. The elevation established by Respondent's survey was in error by one foot. 20301 S.W. 117 Avenue Survey On June 13, 1984, Respondent signed and sealed a "Sketch of Survey," for Lot 17, Block 6, Addition J., South Miami Heights, Plat Book 68, Page 74, Public Records of Dade County, Florida commonly known as 20301 S.W. 117 Avenue, Miami, Florida. The Sketch of Survey reflects only one angle and no bearings, and failed to set a monument or offset witness point for the northeast corner of the property.
The Issue The issues presented concern the attempt on the part of the State of Florida, Department of Natural Resources (DNR) to impose a fine against Ron Harrod (Respondent) for willfully or knowingly damaging or removing products from sovereign lands without the consent of DNR or the State of Florida, Board of Trustees of Internal Improvement Trust Fund. The products spoken to is timber allegedly cut and removed from state-owned lands on November 20, 1985, and April 1, 1986. This purported conduct on the part of the Respondent is said to have violated Section 253.04(2), Florida Statutes (1985), and Rule 16Q- 14.03(2) and (6), Florida Administrative Code.
Findings Of Fact On September 1, 1985, Blanche Farrow made an agreement with the Respondent which allowed the Respondent as the owner of "Rons Cypress" to cut all the timber on her property. Rons Cypress is a business for cutting cypress slabs. This property is described in the agreement as being located on Highway 48 approximately 1 mile east of Floral City, on both the north and south sides of the road. Further it was stated that the timber contemplated in this arrangement could be found along Daniels Drive. A copy of the statement of agreement between Farrow and the Respondent may be found as Respondent's Exhibit 1 admitted into evidence. The exact nature of the Farrow property which is the subject of the agreement with the Respondent may be found in a copy of the Warranty Deed pertaining to this property, which has been admitted as DNR Exhibit 4. This property is located in Citrus County, Florida. The extent of the property over which Blanche Farrow and her husband, Chester B. Farrow, hold ownership does not extend into Lake Tsala Apopka, Lake Bradley and Little Lake, lakes adjacent to their property. These lakes constitute part of an historically meandered lake system and are subject to the sovereign rights of the State of Florida. In effect, the State of Florida owns those water bodies. The limitations of the boundaries of the Farrow property are made clear in the Warranty Deed in which certain language describes the boundaries of the property owned by the Farrows as being ". . . to the waters of Lake Tsala Apopka; thence Southerly along the water's edge of said Lake Tsala Apopka . . ." and ". . . to the water's edge of Lake Bradley . . ." Therefore, notwithstanding Respondent's protestations to the contrary and any statement made by Chester B. or Blanche Farrow, the legal description of the property does not convey title to those individuals for the several lakes described, nor create any leasehold interest on the part of the Farrows to the lakes. In pursuit of the agreement with the Farrows, Respondent made arrangements with Jerry Lovett, who is in the lumber business, to cut trees, principally cypress trees. Through this agreement, Lovett would write checks to Blanche Farrow which would be given to her by the Respondent. The Respondent in turn would be able to take the stumps left over from the cutting of cypress trees and use them for slabs in his business of selling cypress tree products. Respondent was to pay Ms. Farrow for the stumps from which he cut slabs. Respondent also took cypress knees in this area for use in his business. Respondent's Composite Exhibit 3 describes payment made by Jerry Lovett to Blanche Farrow for trees removed. On October 14, 1985, $600.00 was paid for cypress trees. On October 28, 1985, $1,275.72 was paid, of which 52.31 tons of cypress at $6.00 a ton was included in that purchase. On November 4, 1985, $551.28 was paid for cypress trees. On November 15, 1985, he paid $131.92 for removal of cypress trees. In this endeavor, Lovett in the person of his work crew had cut and removed cypress trees which belonged to the State of Florida. Respondent cut and removed slabs from the stumps left following Lovett's lumbering operation and took cypress knees as well belonging to the state. Respondent's involvement with the stumps and knees was through activities of a crew working for the Respondent. Neither the Farrows, Lovett nor Respondent had permission to take cypress products from this land belonging to the State of Florida. Lovett, in his activities, had operated under the misapprehension that the Farrows owned the disputed cypress trees that were cut from lands of the sovereign. He was led to believe in his discussions with Blanche Farrow that Respondent would point out the places where the cut could be made. Lovett also understood from his conversation with Ms. Farrow that certain monuments identifying the extent of her ownership could be found on the side of the road near Lakes Tsala Apopka and Bradley, described as cement corners. Lovett never located those monuments in that as he understood the outer bounds of the Farrow ownership, as Ms. Farrow described them, he would not approach those outer limits in his activities. Respondent likewise believed that the Farrows owned the property where the cypress cutting was being done. Nevertheless, Lovett cut and removed cypress trees in Lake Tsala Apopka, Lake Bradley and Little Lake and Respondent took stumps and knees from those lakes owned by the sovereign. Lovett sold the cypress logs which he removed from the area in dispute, to include cypress logs belonging to the State of Florida. Lovett removed less than 300 trees from the site and left some cypress logs at the site. Lovett through his crew was operating at the site of the dispute sometime approximately a week before October 14, 1985, through November 15, 1985. Lovett ceased his activities in the cutting of cypress when instructed to do so by the Respondent who mentioned something to the effect that the local zoning board said that this cutting had to cease. In the course of his operations in the three lakes, Respondent took 693 knees and between 800 and 1,200 cypress slabs. DNR became aware of the activities of Lovett and the Respondent based upon an investigation that was prompted by observations which Linda Sanford made. Linda Sanford is a zoning inspector for Citrus County. She also lives adjacent to Lake Bradley. As she describes it in her testimony, she observed work crews in the water cutting cypress "off and on." Among the people that she identified as being a member of the work crew was a James Gunn, who is an employee of the Respondent. The first time she saw the Respondent's crew was on November 13, 1985, around Daniels Road and Highway 48. Three persons were in the water and a chain saw was being operated. On November 16, 1985, while at home, Ms. Sanford received complaints from some neighbors about saws being operated and observed Respondent's crew again. One other time on a date that Ms. Sanford does not remember, which would have been following the first two occasions of her observations, Ms. Sanford asked the work crew if they had permits for the activities. Ms. Sanford never saw the Respondent's work crew remove any of the cypress materials. On November 20, 1985, Lieutenant Louis Feulner, then a Sergeant for the Florida Marine Patrol, went to the area where cypress trees had been cut by Lovett and cuttings from stumps and cypress knees were being taken by Respondent's work crew. This area was described by Feulner as the Lake Tsala Apopka chain. A copy of his report of the incident may be found as DNR Exhibit 7 admitted into evidence. Feulner was sent to investigate by his superior, Major Brown of the Florida Marine Patrol. Feulner arrived at the scene of the cutting activity around 3:30 in the afternoon and saw three subjects in the water. Those persons were James Gunn and Respondent's two sons. Feulner saw that cypress trees had been cut down on the site and some were located in the water. He observed stumps in the water as well. These observations were made of cypress products in knee- deep water. Feulner saw a chain saw being operated by the crew. The cutting that was being done was a slab from a stump. He did not see trees being removed from the site of the cutting. Upon inquiry, Gunn told Feulner that he worked for the Respondent and that the Respondent had gotten permission to cut the cypress trees from Ms. Farrow. Feulner advised Gunn that the activities involved in the cutting violated state law. In fact those activities did involve cutting of property belonging to the State. Major Brown had dispatched Lieutenant Fuelner to the questioned site on November 20, 1985, based upon a request of Gordon Roberts, Assistant Chief of Aquatic Lands for NR. At that time, Roberts was employed in a Division of State Lands, as an administrative assistant involved with investigations and enforcement. He held that position until May 1, 1987. On December 4, 1985, Roberts went to the site and observed that cypress harvesting had taken place in wetlands, in a submerged area. The area he observed was one involving buttress cypress trees. Roberts observed that harvesting was being done in an area below a line which represents the minimum flood plan line, a control line for what is described as the water management division. In conversation which Roberts had with the Respondent following the Feulner visit to the site, Roberts explained to the Respondent that there was some question about whether the cutting was on privately owned land or submerged land belonging to the State. He further advised the Respondent not to cut anymore in that area until a determination could be made about ownership of the property. Roberts wrote to the Respondent on December 13, 1985. A copy of this correspondence may be found as DNR Exhibit 1 admitted into evidence. Respondent says he did not receive this correspondence Nonetheless it was sent to the address utilized in noticing of the Respondent of the final hearing in this cause, as attended by the Respondent. The letter mentions concerns of the State on the subject of the belief held by the State that cutting was being done on its property. It went on to say that a survey was going to be conducted to decide where the line of demarcation between the upland owners property and that of the State would occur. The letter states that DNR preferred to have the matter settled amicably but indicated that trees should not be cut where buttressed cypress were found nor any other trees below the ordinary high water line of the lakes in question. It warned Respondent that a fine of $10,000 could be imposed under the provisions of Rule 16Q-14, Florida Administrative Code, for unauthorized removal of the trees and that the fine could be mitigated. Further it was stated voluntary cessation of the tree cutting would be a consideration on the amount of the fine. Finally, the letter stated that the Respondent could contact the State concerning these issues. By activities of Louis Neuman, Senior Forester for DNR, an attempt was made to ascertain the value of cypress trees which were cut in the areas in dispute. Mr. Neuman is qualified to assess the value of the trees cut. A description of his evaluation may be found in DNR Exhibits 12A-C representing the assessment made in Little Lake, Lake Bradley, and Lake Tsala Apopka. This involves a survey of December 18-20, 1985, as made by Mr. Neuman. He found that value involved in the cutting to be $440, $1,364 and $2,948, respectively, for Little Lake, Lake Bradley and Lake Tsala Apopka. These findings were related to Gordon Roberts in a memorandum of February 25, 1986, a copy of which may be found as DNR Exhibit 2 admitted into evidence. His assumption was that 78 trees, 306 trees and 815 trees had been cut within Little Lake, Lake Bradley and Lake Tsala Apopka, respectively. The total amount for cut cypress trees in all three lakes was $4,752, per Mr. Neuman's observations. Comparing his observations to those of the Respondent and Lovett, there is a disparity in valuation; however, it suffices to say that a substantial dollar amount of product was destroyed and removed from sovereign waters. This was an arrangement in which the Respondent was a knowing participant, who profited from the endeavor. In spite of the conciliatory tone of the letter of December 13, 1985, from Roberts to the Respondent, on March 26, 1986, a notice of violation or administrative complaint was brought against the Respondent concerning the observations made on December 4, 1985 and in view of the $4,752 statement of damages on the part of Mr. Neuman. The State sought to collect that amount of money and $2,000 punitive damages. A copy of the March 26, 1986 complaint letter may be found as DNR Exhibit 3 admitted into evidence. That complaint or notice of violation was subsumed in action of July 2, 1986, which forms the basis of the present dispute and for which the Respondent sought timely hearing. In the present complaint, allegations are made concerning observations of November 20, 1985, and the assessment of an administrative fine of $6,752 for what is described as a first offense. There is set forth in the notice of violation a second count or claim of violation pertaining to events of April 1, 1986, in which Respondent is stated to have willfully and knowingly removed products from the same area in which sovereign lands are said to have been involved. For this alleged second offense, DNR sought the imposition of an additional $10,000 fine. The accusations concerning a second offense arise from an investigation performed by Robert Verlato, an officer with the Florida Marine Control, which was conducted on April 1, 1986. He went to the Bradley Lake site where the cutting had been done in the past and observed three individuals at work. These were members of the Respondent's crew, including James Gunn and Respondent's two sons. He saw them operating a chain saw cutting the base of the stump which was approximately two feet in length. Gunn was operating the saw. Verlato told the individuals to stop work and they did. He arrested them for trespassing and removing state property. Respondent then arrived at the scene and indicated that he should be charged if there were any violations, and that the three men were members of his crew under his supervision and control. Verlato also observed other freshly cut stumps than the one which he had seen crew members working on, which stumps were in the same general area. He collected ten of the these fresh-cut stumps and took them as evidence for the criminal court case. Respondent indicates that the activities of April 1, 1986, had to do with the cleanup of this site requested by Ms. Farrow and not for purpose of further removal of cypress products for Respondent's benefit. The facts lead to the conclusion that while the Respondent may have had in mind accommodating Ms. Farrow, he also was accommodating his financial interests as well. This conclusion is supported by Respondent's Exhibit 2 admitted into evidence which was a letter from Ms. Farrow to Respondent on May 19, 1986, after the April 1, 1986, incident in which she asked the Respondent to observe the state's suggestions that no further cutting and hauling be done related to the cypress trees in question. Composite Exhibit 5A-D constitutes photographs of the site related to Lake Tsala Apopka showing where trees have been removed. DNR Common Exhibits 6 and 14 is an aerial photograph which marks the places where the subject cypress trees have been cut in the three lakes. They are shown in red marking. The findings about cutting that was done in Tsala Apopka Lake are not conclusive because the ordinary high water line for Lake Tsala Apopka was not established. This circumstance is discussed in the following paragraph. DNR commissioned an ordinary high water line study to be performed by Douglas A. Thompson, Professional Land Surveyor, registered in the State of Florida, and other states. He is the Assistant Chief of the Bureau of Survey and Mapping for DNR. Other members of his team included Kenneth M. Campbell, Bureau of Geology, and geologist for DNR; Catherine M. Gilbert, Bureau of Aquatic Plants, and botanist for DNR; and Louis A. Neuman of the Bureau of Mine Reclamation, forester. The details of this study are set forth in DNR Exhibit 11 admitted into evidence which is a copy of the ordinary high water lines survey of Bradley Lake and Little Lake. This study established the ordinary high water line elevation for Bradley Lake at 42.75 feet and for Little Lake at 41.75 feet. Areas where cypress trees were observed to have been cut in the operations of Lovett and the Respondent showed that in Little Lake the maximum elevation for those cuttings was 40.3 feet and at Lake Bradley the maximum elevation was at 41.4 feet. Both of these measurements are below the ordinary high water line elevation for those two water bodies. This confirms that Lovett and the Respondent were destroying and taking products belonging to the State which were below the ordinary high water line and within the boundaries of the sovereign's ownership. Due to the special nature of Lake Tsala Apopka, DNR was unable to establish with exactitude the high ordinary high water line for Lake Tsala Apopka. They were able to approximate that line at 42.75 feet in a setting where the maximum elevation of cuttings of cypress within that lake were found at 41.2 feet.
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 presented for decision is whether Proposed Rules 20-15.001, 20-15.002, and 20-15.003 constitute an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(a)-(e), Florida Statutes.
Findings Of Fact Based on the stipulated facts, and the entire record in this proceeding, the following findings of fact are made: The Florida Citrus Commission was established in 1935 to organize and promote the growing and sale of various citrus products, fresh and processed, in the State of Florida. The purpose of the Citrus Commission is today reflected in Section 601.02, Florida Statutes. The powers of the Florida Citrus Commission ("the Commission") and the Department, are set forth in full in Section 601.10, Florida Statutes. The powers of the Department include the power to tax and raise other revenue to achieve the purposes of the Department. In particular, Section 601.10(1) and (2), Florida Statutes, state: The Department of Citrus shall have and shall exercise such general and specific powers as are delegated to it by this chapter and other statutes of the state, which powers shall include, but shall not be confined to, the following: To adopt and, from time to time, alter, rescind, modify, or amend all proper and necessary rules, regulations, and orders for the exercise of its powers and the performance of its duties under this chapter and other statutes of the state, which rules and regulations shall have the force and effect of law when not inconsistent therewith. To act as the general supervisory authority over the administration and enforcement of this chapter and to exercise such other powers and perform such other duties as may be imposed upon it by other laws of the state. The Department is authorized to set standards by Section 601.11, Florida Statutes, as follows: The Department of Citrus shall have full and plenary power to, and may, establish state grades and minimum maturity and quality standards not inconsistent with existing laws for citrus fruits and food products thereof containing 20 percent or more citrus or citrus juice, whether canned or concentrated, or otherwise processed, including standards for frozen concentrate for manufacturing purposes, and for containers therefor, and shall prescribe rules or regulations governing the marking, branding, labeling, tagging, or stamping of citrus fruit, or products thereof whether canned or concentrated, or otherwise processed, and upon containers therefor for the purpose of showing the name and address of the person marketing such citrus fruit or products thereof whether canned or concentrated or otherwise processed; the grade, quality, variety, type, or size of citrus fruit, the grade, quality, variety, type, and amount of the products thereof whether canned or concentrated or otherwise processed, and the quality, type, size, dimensions, and shape of containers therefor, and to regulate or prohibit the use of containers which have been previously used for the sale, transportation, or shipment of citrus fruit or the products thereof whether canned or concentrated or otherwise processed, or any other commodity; provided, however, that the use of secondhand containers for sale and delivery of citrus fruit for retail consumption within the state shall not be prohibited; provided, however, that no standard, regulation, rule, or order under this section which is repugnant to any requirement made mandatory under federal law or regulations shall apply to citrus fruit, or the products thereof, whether canned or concentrated or otherwise processed, or to containers therefor, which are being shipped from this state in interstate commerce. All citrus fruit and the products thereof whether canned or concentrated or otherwise processed sold, or offered for sale, or offered for shipment within or without the state shall be graded and marked as required by this section and the regulations, rules, and orders adopted and made under authority of this section, which regulations, rules, and orders shall, when not inconsistent with state or federal law, have the force and effect of law. The Department is authorized to conduct citrus research by Section 601.13, Florida Statutes. To help pay for these duties of the Department, the Legislature first enacted the "box tax" in 1949. The box tax is now codified as Section 601.15(3), Florida Statutes. Section 601.15(3)(a), Florida Statutes, provides in relevant part: There is hereby levied and imposed upon each standard-packed box of citrus fruit grown and placed into the primary channel of trade in this state an excise tax at annual rates for each citrus season as determined from the tables in this paragraph and based upon the previous season's actual statewide production as reported in the United States Department of Agriculture Citrus Crop Production Forecast as of June 1. Section 601.15(3)(a), Florida Statutes, goes on to set forth specific rates for fresh grapefruit, processed grapefruit, fresh oranges, processed oranges, and fresh or processed tangerines and citrus hybrids. Section 601.15(1), Florida Statutes, sets forth the Department's authority to administer the box tax, as follows: The administration of this section shall be vested in the Department of Citrus, which shall prescribe suitable and reasonable rules and regulations for the enforcement hereof, and the Department of Citrus shall administer the taxes levied and imposed hereby. All funds collected under this section and the interest accrued on such funds are consideration for a social contract between the state and the citrus growers of the state whereby the state must hold such funds in trust and inviolate and use them only for the purposes prescribed in this chapter. The Department of Citrus shall have power to cause its duly authorized agent or representative to enter upon the premises of any handler of citrus fruits and to examine or cause to be examined any books, papers, records, or memoranda bearing on the amount of taxes payable and to secure other information directly or indirectly concerned in the enforcement hereof. Any person who is required to pay the taxes levied and imposed and who by any practice or evasion makes it difficult to enforce the provisions hereof by inspection, or any person who, after demand by the Department of Citrus or any agent or representative designated by it for that purpose, refuses to allow full inspection of the premises or any part thereof or any books, records, documents, or other instruments in any manner relating to the liability of the taxpayer for the tax imposed or hinders or in anywise delays or prevents such inspection, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. The box tax was challenged in 1936 under various provisions of the Florida Constitution as well as the Export Clause, Article 1, s. 9, cl. 5, of the United States Constitution. The Florida Supreme Court issued an opinion in 1937 upholding the validity of the box tax. C.V. Floyd Fruit Company v. Florida Citrus Commission, 128 Fla. 565, 175 So. 248 (1937). In 1970, the Legislature enacted the "equalization tax," codified as Section 601.155, Florida Statutes. The statute mirrored Section 601.15, Florida Statutes, but added certain processors who were mixing foreign citrus products with Florida products. The purpose of the equalization tax was to have all Florida processors of citrus products help pay for the costs of the Department, rather than have the burden fall entirely on the Florida growers subject to the box tax. Section 601.155, Florida Statutes, provides, in relevant part: The first person who exercises in this state the privilege of processing, reprocessing, blending, or mixing processed orange products or processed grapefruit products or the privilege of packaging or repackaging processed orange products or processed grapefruit products into retail or institutional size containers or, except as provided in subsection (9) or except if a tax is levied and collected on the exercise of one of the foregoing privileges, the first person having title to or possession of any processed orange product or any processed grapefruit product who exercises the privilege in this state of storing such product or removing any portion of such product from the original container in which it arrived in this state for purposes other than official inspection or direct consumption by the consumer and not for resale shall be assessed and shall pay an excise tax upon the exercise of such privilege at the rate described in subsection (2). Upon the exercise of any privilege described in subsection (1), the excise tax levied by this section shall be at the same rate per box of oranges or grapefruit utilized in the initial production of the processed citrus products so handled as that imposed, at the time of exercise of the taxable privilege, by s. 601.15 per box of oranges. In order to administer the tax, the Legislature provided the following relevant provisions in Section 601.155, Florida Statutes: Every person liable for the excise tax imposed by this section shall keep a complete and accurate record of the receipt, storage, handling, exercise of any taxable privilege under this section, and shipment of all products subject to the tax imposed by this section. Such record shall be preserved for a period of 1 year and shall be offered for inspection upon oral or written request by the Department of Citrus or its duly authorized agent. Every person liable for the excise tax imposed by this section shall, at such times and in such manner as the Department of Citrus may by rule require, file with the Department of Citrus a return, certified as true and correct, on forms to be prescribed and furnished by the Department of Citrus, stating, in addition to other information reasonably required by the Department of Citrus, the number of units of processed orange or grapefruit products subject to this section upon which any taxable privilege under this section was exercised during the period of time covered by the return. Full payment of excise taxes due for the period reported shall accompany each return. All taxes levied and imposed by this section shall be due and payable within 61 days after the first of the taxable privileges is exercised in this state. Periodic payment of the excise taxes imposed by this section by the person first exercising the taxable privileges and liable for such payment shall be permitted only in accordance with Department of Citrus rules, and the payment thereof shall be guaranteed by the posting of an appropriate certificate of deposit, approved surety bond, or cash deposit in an amount and manner as prescribed by the Department of Citrus. * * * (11) This section shall be liberally construed to effectuate the purposes set forth and as additional and supplemental powers vested in the Department of Citrus under the police power of this state. In March 2000, certain citrus businesses challenged Section 601.155(5), Florida Statutes, as being unconstitutional. At the time of the suit, Section 601.155(5), Florida Statutes, read as follows: All products subject to the taxable privileges under this section, which products are produced in whole or in part from citrus fruit grown within the United States, are exempt from the tax imposed by this section to the extent that the products are derived from oranges or grapefruit grown within the United States. In the case of products made in part from citrus fruit grown within the United States, it shall be the burden of the persons liable for the excise tax to show the Department of Citrus, through competent evidence, proof of that part which is not subject to a taxable privilege. The citrus businesses claimed the exemption in Section 601.155(5) rendered the tax unconstitutionally discriminatory, in that processors who imported juice from foreign countries to be blended with Florida juice were subject to the equalization tax, whereas processors who imported juice from places such as California, Arizona and Texas enjoyed an exemption from the tax. The case, Tampa Juice Service, Inc., et al. v. Department of Citrus, Case No. GCG-00-3718 (Consolidated) ("Tampa Juice"), was brought in the Tenth Judicial Circuit Court, in and for Polk County. Judge Dennis P. Maloney of that court continues to preside over that case. In a partial final declaratory judgment effective March 15, 2002, Judge Maloney found Section 601.155, Florida Statutes, unconstitutional because it violated the Commerce Clause of the United States Constitution due to its discriminatory effect in favor of non-Florida United States juice. In an order dated April 15, 2002, Judge Maloney severed the exemption in Section 601.155(5), Florida Statutes, from the remainder of the statute. The court's decision necessitated the formulation of a remedy for the injured plaintiffs. While the parties were briefing the issue before the court, the Florida Legislature met and passed Chapter 2002-26, Laws of Florida, which amended Section 601.155(5), Florida Statutes, to read as follows: Products made in whole or in part from citrus fruit on which an equivalent tax is levied pursuant to s. 601.15 are exempt from the tax imposed by this section. In the case of products made in part from citrus fruit exempt from the tax imposed by this section, it shall be the burden of the persons liable for the excise tax to show the Department of Citrus, through competent evidence, proof of that part which is not subject to a taxable privilege. Chapter 2002-26, Laws of Florida, was given an effective date of July 1, 2002. By order dated August 8, 2002, Judge Maloney set forth his decision as to the remedy for the plaintiffs injured by the discriminatory effect of Section 601.155(5), Florida Statutes. Judge Maloney expressly relied on the rationale set forth in Division of Alcoholic Beverages and Tobacco v. McKesson Corporation, 574 So. 2d 114 (Fla. 1991)("McKesson II"). In its initial McKesson decision, Division of Alcoholic Beverages and Tobacco v. McKesson Corporation, 524 So. 2d 1000 (Fla. 1988), the Florida Supreme Court affirmed a summary judgment ruling that Florida's alcoholic beverage tax scheme, which gave tax preferences and exemptions to certain alcoholic beverages made from Florida crops, unconstitutionally discriminated against interstate commerce. The Florida Supreme Court also affirmed that portion of the summary judgment giving the ruling prospective effect, thus denying the plaintiff a refund of taxes paid pursuant to the unconstitutional scheme. The decision was appealed to the United States Supreme Court. In McKesson Corporation v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18 (1990), the United States Supreme Court reversed the Florida Supreme Court's decision as to the prospective effect of its decision. The United States Supreme Court held that: The question before us is whether prospective relief, by itself, exhausts the requirements of federal law. The answer is no: If a State places a taxpayer under duress promptly to pay a tax when due and relegates him to a postpayment refund action in which he can challenge the tax's legality, the Due Process Clause of the Fourteenth Amendment obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation. 496 U.S. at 31 (footnotes omitted). The United States Supreme Court set forth the following options by which the state could meet its obligation to provide "meaningful backward-looking relief": [T]he State may cure the invalidity of the Liquor Tax by refunding to petitioner the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its competitors actually received. . . . Alternatively, to the extent consistent with other constitutional restrictions, the State may assess and collect back taxes from petitioner's competitors who benefited from the rate reductions during the contested tax period, calibrating the retroactive assessment to create in hindsight a nondiscriminatory scheme. . . . Finally, a combination of a partial refund to petitioner and a partial retroactive assessment of tax increases on favored competitors, so long as the resultant tax actually assessed during the contested tax period reflects a scheme that does not discriminate against interstate commerce, would render Petitioner's resultant deprivation lawful and therefore satisfy the Due Process Clause's requirement of a fully adequate postdeprivation procedure. 496 U.S. at 40-41 (citations and footnotes omitted). The United States Supreme Court expressly provided that the state has the option of choosing the form of relief it will grant. In keeping with the United States Supreme Court opinion, the Florida Supreme Court granted the Division of Alcoholic Beverages and Tobacco (the "Division") leave to advise the Court as to the form of relief the state wished to provide. The Division proposed to retroactively assess and collect taxes from those of McKesson's competitors who had benefited from the discriminatory tax scheme. McKesson contended that a refund of the taxes it had paid was the only clear and certain remedy, because retroactive taxation of its competitors would violate their due process rights. McKesson II, 574 So. 2d at 116. The Florida Supreme Court remanded the case to the trial court for further proceedings on McKesson's refund claim, with the following instructions: While McKesson may not necessarily be entitled to a refund, it is entitled to a "clear and certain remedy," as outlined in the Supreme Court's opinion. Because nonparties, such as amici, will be directly affected by the retroactive tax scheme proposed by the state, all affected by the proposed emergency rule must be given notice and an opportunity to intervene in this action. Therefore, on remand, the trial court not only must determine whether the state's proposal meets "the minimum federal requirements" outlined in the Supreme Court's opinion, it also must determine whether the proposal comports with federal and state protections afforded those against whom the proposed tax will be assessed. We emphasize that the state has the option of choosing the manner in which it will reformulate the alcoholic beverage tax during the contested period so that the resultant tax actually assessed during that period reflects a scheme which does not discriminate against interstate commerce. Therefore, if the trial court should rule that the state's proposal to retroactively assess and collect taxes from McKesson's competitors does not meet constitutional muster and such ruling is upheld on appeal, the state may offer an alternative remedy for the trial court's review. However, any such proposal likewise must satisfy the standards set forth by the Supreme Court as well as be consistent with other constitutional restrictions. 574 So. 2d at 116. In the Tampa Juice case, Judge Maloney assessed the options prescribed by the series of McKesson cases and concluded that the only fair remedy was to assess and collect back assessments from those who benefited from the unconstitutional equalization tax exemption. His August 8, 2002, order directed the Department to "take appropriate steps, consistent with existing law, to assess and collect the Equalization tax from those entities which [benefited] from the unconstitutional exemption." On September 18, 2002, the Department promulgated the Emergency Rules that were at issue in DOAH Case No. 02-3648RE. The Emergency Rules were filed with the Department of State on September 24, 2002, and took effect on that date. Those emergency rules were held invalid in Peace River, and are not at issue in the instant case. In the November 15, 2002 issue of the Florida Administrative Weekly (vol. 28, no. 46, pp. 4996-4998), the Department published the Proposed Rules that were at issue in DOAH Case No. 02-4607RP. In the March 7, 2003, issue of the Florida Administrative Weekly (vol. 29, no. 10, p. 1036), the Department published amendments to the Proposed Rule. The Proposed Rules, as amended, read as follows: EQUALIZATION TAX ON NON-FLORIDA UNITED STATES JUICE 20-15.001 Intent. The Court in Tampa Juice Service, et al v. Florida Department of Citrus in Consolidated Case Number GCG-003718 (Circuit Court in and for Polk County, Florida) severed the exemption contained in Section 601.155(5), Florida Statutes, that provided an exemption for persons who exercised one of the enumerated Equalization Tax privileges on non-Florida, United States juice. The Court had previously determined that the stricken provisions operated in a manner that violated the Commerce Clause of the United States Constitution. On August 8, 2002, the Court ordered that the Florida Department of Citrus "take appropriate steps, consistent with existing law, to assess and collect the Equalization tax from those entities which [benefited] from the unconstitutional exemption." It is the Florida Department of Citrus' intent by promulgating the following remedial rule to implement a non- discriminatory tax scheme, which does not impose a significant tax burden that is so harsh and oppressive as to transgress constitutional limitations. These rules shall be applicable to those previously favored persons who received favorable tax treatment under the statutory sections cited above. Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, , 601.155 FS. History-- New . 20-15.002 Definitions. "Previously favored persons" shall be defined as any person who exercised an enumerated Equalization Tax privilege as defined by Section 601.155, Florida Statutes, but who was exempt from payment of the Equalization Tax due to the exemption for non-Florida, United States juice set forth in the statutory provision, which was ultimately determined to be unconstitutional and severed from Section 601.155(5), Florida Statutes. The "tax period" during which the severed provisions of Section 601.155(5), Florida Statutes, were in effect shall be defined as commencing on October 6, 1997, and ending on March 14, 2002. "Tax liability" shall be defined as the total amount of taxes due to the Florida Department of Citrus during the "tax period," at the following rates per box for each respective fiscal year: Fiscal Year Processed Rate Orange Grapefruit 1997-1998 .175 .30 1998-1999 .17 .30 1999-2000 .18 .325 2000-2001 .175 .30 2001-2002 .165 .18 Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, , 601.155 FS. History-- New . 20-15.003 Collection. The Florida Department of Citrus shall calculate the tax liability for each person or entity that exercised an enumerated Equalization Tax privilege outlined in section 601.155, Florida Statutes, upon non-Florida, United States juice based upon inspection records maintained by Florida Department of Agriculture and Consumer Services and the United States Department of Agriculture. Subsequent to adoption of this rule, the Florida Department of Citrus will provide to the previously favored persons by certified mail a Notice of Tax Liability which shall contain a demand for payment consistent with the above-referenced itemized statement. The Department will deem late payment of Equalization Taxes owed by previously favored persons to constitute good cause, and shall waive the 5 percent penalty authorized by Section 601.155(10), F.S., as compliance with either of the following is established by Department [sic]: Lump sum payment of the tax liability remitted with the filing of Department of Citrus Form 4R (incorporated by reference in Rule 20-100.004, F.A.C.) for the relevant years and then-applicable tax rate(s) per subsection 20-15.002(3), F.A.C., within 61 days of receiving Notice of Tax Liability; or Equal installment payments remitted with the filing of Department of Citrus Form 4R (incorporated by reference in Rule 20- 100.004, F.A.C.) for the relevant years and then-applicable tax rate(s) per subsection subsection [sic] 20-15.002(3), F.A.C., over a 60-month period, the first payment being due within 61 days of receiving Notice of Tax Liability pursuant to subsection 20- 15.003(2), F.A.C.; or The Good Cause provisions of 601.155(10), F.S., shall not apply to persons who do not comply with paragraph 20- 15.003(2)(a), F.A.C., or paragraph 20- 15.003(2)(b), F.A.C. Failure to pay the taxes or penalties due under 601.155, F.S. and Chapter 20-15, F.A.C., shall constitute grounds for revocation or suspension of a previously favored person's citrus fruit dealer's license pursuant to 601.56(4), F.S., 601.64(6), F.S., 601.64(7), F.S., and/or 601.67(1), F.S. The Florida Department of Citrus will not oppose the timely intervention of persons who previously enjoyed the subject exemption that wish to present a claim to the Court in the Tampa Juice Service, Inc., et al v. Florida Department of Citrus. However, the Florida Department of Citrus does not waive any argument regarding the validity of the calculation of the tax liability or that imposition of this tax is constitutional. Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New . The Final Order in Peace River held that the Proposed Rules were not an invalid exercise of delegated legislative authority, for reasons discussed in the Conclusions of Law below. Judge Maloney has yet to rule on the backward-looking remedy proposed by the Department. On March 26, 2003, Judge Maloney entered an order extending until May 1, 2003, the time for interested parties to file motions to intervene with regard to the Department's proposed backward-looking relief. The order noted that the parties have stipulated to the suspension of the back tax as to plaintiffs and objecting non-parties until further order of the court. On February 19, 2003, Judge Maloney entered an "Order Granting Plaintiffs' Motion for Partial Summary Judgment-- Import-Export." The sole issue before Judge Maloney was "whether Section 601.155, Florida Statutes, (the 'Equalization Tax'), as it existed in 1997, violates Article I, Section 10, clause 2 of the Constitution of the United States (the 'Import- Export Clause')." (Emphasis in original) After setting forth the standard for analysis of whether a taxing scheme violates the Import-Export Clause under Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S. Ct. 535, 46 L.Ed.2d 495 (1976), Judge Maloney ruled as follows: It is precisely [the exemption for United States products found in 601.155(5), Florida Statutes] that causes the 1997 Equalization Tax to contravene the Import-Export Clause. Specifically, the court finds that because the statute exempts "citrus fruit grown within the United States," but does not exempt citrus fruit grown in foreign countries, the exemption causes the tax to "fall on imports as such simply because of their place of origin." Michelin, 423 U.S. at 286. Additionally, because the tax falls on foreign-grown citrus as such simply because of its origin but does not fall on domestic-grown citrus, the Equalization Tax, with the exemption, creates a "special tariff or particular preference for certain domestic goods." Id. (i.e. California, Arizona, and Texas citrus products). * * * In conclusion, because the court finds the exemption contained within the 1997 Equalization Tax violates both the first and third elements of the Michelin test,1 the court finds the 1997 Equalization Tax violates Article I, Section 10, clause 2 of the Constitution of the United States (the "Import-Export Clause"). On March 31, 2003, Judge Maloney entered an "Order Granting Plaintiffs' Motion for Partial Summary Judgment." In this order, Judge Maloney found that the box tax itself, Section 601.15, Florida Statutes, violates the First Amendment to the United States Constitution. Petitioners and Intervenor in the instant case are licensed citrus fruit dealers regulated by Chapter 601, Florida Statutes. As such, they are subject to the rules of the Department. Petitioners and Intervenor buy, sell, and manufacture citrus juices. They shipped products made with non- Florida U.S. juice during the tax period without paying equalization taxes. Petitioners and Intervenor have been notified by the Department that they are liable to pay back taxes pursuant to the Proposed Rules, as well as the invalid Emergency Rules.
The Issue Whether Petitioners’ installation of ditch plugs on their property qualifies for an agricultural exemption from the requirement to obtain an environmental resource permit pursuant to section 373.406(2), Florida Statutes.
Findings Of Fact Petitioners, Paul and Kathleen Still (Petitioners), own a parcel of property comprised of 118 acres located within Section 33, Township 6 South, Range 21 East, in Bradford County, Florida, approximately six miles southwest of Starke, Florida (the Property). The Department is the state agency authorized under section 373.407, Florida Statutes, to make binding determinations at the request of a water management district or landowner as to whether an existing or proposed activity qualifies for an agricultural-related exemption from environmental resource permitting, pursuant to section 373.406(2). The Property is classified as agricultural by the Bradford County Property Appraiser. A county-maintained dirt road, Southwest 101st Avenue, forms the western boundary of the Property, and Lake Sampson forms the eastern boundary of the Property. Petitioners have owned the Property since 1996, and currently reside on the Property. A drainage ditch runs through the Property from Southwest 101st Avenue to Lake Sampson. The evidence suggests that it was originally constructed in the 1960s, was dug through wetlands and uplands, and serves to drain the area west of Southwest 101st Avenue. The ditch had the effect of draining some of the wetlands that had previously existed on the Property. The drainage ditch ends in the Northwest corner of the wetland above ditch plug 3, at which point water flows east and then north, eventually flowing into Lake Sampson north of the Property. The wetland above ditch plug 3 was a natural wetland which was likely part of Lake Sampson before Lake Sampson was partially drained in 1887. At some point, a low berm was pushed around parts of this wetland. Prior to Petitioners’ ownership, the berm was breached and the wetland drained. Ditch plug 3 was installed in this breach. Ditch plug 3 restored water to the same level as was present when the wetland was part of Lake Sampson. The Property contains stands of planted and naturally- regenerating pine, natural cypress, and a stand of cypress trees planted by Petitioners. Cypress is present on 43 acres of the Property, with more than 50 percent of that area having been planted. The density at which the cypress was planted will require that the stand be thinned. Most of the thinned cypress trees will be sent off to be turned into mulch. Some will be of a size that it can go into saw timber. Silviculture has been defined in several ways: The United States Department of Agriculture and the Department have, on their websites defined silviculture as “the art and science of controlling the establishment, growth, composition, health, and quality of forest and woodland vegetation to meet the diverse interests of landowners and a wide variety of objectives.” The United States Forest Service website defines silviculture as “the art and science of controlling the establishment, growth, composition, health and quality of forests and woodlands to meet the diverse needs and values of landowners and society on a sustainable basis.” Florida Administrative Code Rule 5I-2.003(29) defines silviculture as “a forestry operation dealing with the establishment, development, reproduction, and care of forest flora and fauna.” The Department’s Silviculture Best Management Practices, adopted in rule 5I-6.002, defines silviculture as “a process, following accepted forest management principles, whereby the trees constituting forests are tended, harvested and reproduced.” Production of cypress for lumber and mulch is a silvicultural and agricultural activity. Petitioners’ production of cypress for lumber and mulch constitutes a silvicultural operation. The production of cypress is enhanced by periodic inundation to control hardwood species of competing trees. Starting in 2004, Petitioners began to plan for the installation of ditch plugs on the Property, and shortly thereafter installed ditch plug 3, which is not in wetlands. That plug was short-lived, being removed prior to 2006 when Petitioners started getting groundwater infiltration into their shallow drinking water well. At some time in 2006 or 2007, Petitioners reinstalled ditch plug 3. In 2009, at the request of Petitioners, a preliminary field review was conducted by staff of the District to discuss the potential to install ditch plugs on the Property. Based on the preliminary investigation, it was determined that additional analysis would be needed to make sure that the proposed plugs would not have offsite and upstream drainage problems. Ditch plugs 1 and 2 were installed in stages beginning in 2011. Construction of the ditch plugs was done in stages to ensure that no offsite impacts would occur. There is no evidence in this case to suggest that the ditch plugs have resulted in any offsite and upstream drainage problems. Petitioners assert that the ditch plugs were installed to return water to wetlands that had been drained so as to enhance the production of cypress in those wetlands. Petitioners also admit that the ditch plugs will also have the effect of mitigating for sediment eroding from Southwest 101st Avenue. On November 5, 2014, the District notified Petitioners that it had come to the attention of the District that the ditch plugs may have been installed on the Property without proper authorization. At some time after November 5, 2014, Petitioners requested that the District provide notification of the applicability of one or more of the exemptions in section 373.406 to the installation of the ditch plugs on their Property. On April 24, 2015, the District requested additional information in support of Petitioners’ request, and advised Petitioners that the ditch plugs were not exempt under section 373.406(2) because the predominant purpose of the ditch plugs was to impede or divert the flow of surface water. The District further advised Petitioners that the ditch plugs may be eligible for exemption under section 373.406(9), which exempts measures having the primary purpose of environmental restoration or water quality improvement on agricultural lands where these measures have minimal or insignificant adverse impact on the water resources of the state. On June 4, 2015, as a result of the District’s April 24, 2015, letter, Petitioners requested a binding determination as to the applicability of the section 373.406(2) agricultural exemption. On June 18, 2015, the Department conducted a site visit. According to Mr. Lamborn, the county forester for Baker and Bradford counties, who wrote the Stewardship Forest Management Plan for the Property and has visited the Property several times, the Property is not a typical timber operation. Mr. Lamborn noted that Petitioners were the only landowners during his time as a county forester that identified soil and water conservation as their primary management goal for a forest stewardship plan. Mr. Vowell has never seen ditch plugs used in a silvicultural operation in the manner that Petitioners have used them on their Property. Mr. Bartnick testified that the Department has never issued an agricultural determination providing an exemption for ditch plugs in wetlands. In coming to its Binding Determination, the Department reviewed, among other information, correspondence between the District and the Petitioners; the Silvicultural Best Management Practices manual (2008); current and historical aerial photography of the Property; a USDA Soil Survey map; the 2015 Bradford County Property Appraiser Information Card; the National Wetland Inventory Map; and the Florida Forest Service Stewardship Management Plan. The review of the request for a Binding Determination substantially complied with the requirements of Florida Administrative Code Chapter 5M-15. On September 14, 2015, the Department applied the three-part test in rule 5M-15.005, and issued its Binding Determination which concluded that Petitioner’s activities did not meet the requirements for an agricultural exemption. Under the heading "Application of Statutory Criteria,” the Binding Determination provided that: Pursuant to Section 373.406(2) F.S., all of the following criteria must be met in order for the permitting exemption to apply. "Is the landowner engaged in the occupation of agriculture, silviculture, floriculture, or horticulture?" YES. FDACS-Florida Forest Service finds that Mr. Paul Still is engaged in the occupation of silviculture. "Are the alterations (or proposed alterations) to the topography of the land for purposes consistent with the normal and customary practice of such occupation in the area?" NO. FDACS-Florida Forest Service finds that the construction of the ditch plugs are not a normal and customary practice for silviculture being conducted in the area. Normal and customary silviculture would typically not include the plugging of existing ditches. In fact, silviculture in Florida often necessitates some level of drainage to make wetter sites more accessible and therefore more productive. Based on his experience, Mr. Lamborn explained that “conservation of soils and water resources”, as the main component of a Stewardship Plan is not customary. Moreover, the 2008 Silviculture Best Management Practices manual does not list ditch plugs installed in wetlands or in large ditches connected to wetlands, as a viable practice. The reference to ditch plugs in the 2008 Silviculture Best Management Practices manual is for “road-side” ditches and has to do with the entrapment and dispersion of sediment and the reduction of ditch- flow velocity, not hydrologic restoration. "Are the alterations (or proposed alterations) for the sole or predominant purpose of impeding or diverting the flow of surface waters or adversely impacting wetlands?" Because the exemption in section 373.406(2), F.S., requires an affirmative answer to all these criteria, and we have already found that the alterations are not consistent with normal and customary practice of such occupation in the area (see (b) above), there is no need to address this issue. In sum, the Binding Determination concluded the installation of ditch plugs in Petitioners’ particular circumstance did not qualify for the agricultural exemption under section 373.406(2), because such is not a normal and customary practice for silviculture being conducted in the area. Petitioners asserted that the Department’s determination reflected a “bias” towards pine production, and did not consider the requirements of cypress production. Much of the testimony regarding customary silvicultural practices was provided by Mr. Vowell. Mr. Vowell has worked with hundreds of small, private, non-industrial forest owners, and was clearly well-versed in pine production. He described his experience with the production of cypress as “very little.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Agriculture and Consumer Services enter a final order finding that the activities on Petitioner’s Property addressed in this case are not exempt pursuant to section 373.406(2), Florida Statutes. DONE AND ENTERED this 2nd day of February, 2016, in Tallahassee, Leon County, Florida. S GARY EARLY 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 2nd day of February, 2016. COPIES FURNISHED: Lauren Brothers, Esquire Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 (eServed) Paul Still Kathleen Still 14167 Southwest 101st Avenue Starke, Florida 32091 (eServed) Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue in DOAH Case No. 02-3648RE is whether Emergency Rules 20ER02-01, 20ER02-02, and 20ER02-03 constitute an invalid exercise of delegated legislative authority. The issue in DOAH Case No. 02-4607RP is whether Proposed Rules 20-15.001, 20- 15.002, and 20-15.003, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the stipulated facts, and the entire record in this proceeding, the following findings of fact are made: The Florida Citrus Commission was established in 1935 to organize and promote the growing and sale of various citrus products, fresh and processed, in the State of Florida. The purpose of the Citrus Commission is today reflected in Section 601.02, Florida Statutes. The powers of the Florida Citrus Commission ("the Commission") and the Department, are set forth in full in Section 601.10, Florida Statutes. The powers of the Department include the power to tax and raise other revenue to achieve the purposes of the Department. In particular, Section 601.10(1) and (2), Florida Statutes, state: The Department of Citrus shall have and shall exercise such general and specific powers as are delegated to it by this chapter and other statutes of the state, which powers shall include, but shall not be confined to, the following: To adopt and, from time to time, alter, rescind, modify, or amend all proper and necessary rules, regulations, and orders for the exercise of its powers and the performance of its duties under this chapter and other statutes of the state, which rules and regulations shall have the force and effect of law when not inconsistent therewith. To act as the general supervisory authority over the administration and enforcement of this chapter and to exercise such other powers and perform such other duties as may be imposed upon it by other laws of the state. The Department is authorized to set standards by Section 601.11, Florida Statutes, as follows: The Department of Citrus shall have full and plenary power to, and may, establish state grades and minimum maturity and quality standards not inconsistent with existing laws for citrus fruits and food products thereof containing 20 percent or more citrus or citrus juice, whether canned or concentrated, or otherwise processed, including standards for frozen concentrate for manufacturing purposes, and for containers therefor, and shall prescribe rules or regulations governing the marking, branding, labeling, tagging, or stamping of citrus fruit, or products thereof whether canned or concentrated, or otherwise processed, and upon containers therefor for the purpose of showing the name and address of the person marketing such citrus fruit or products thereof whether canned or concentrated or otherwise processed; the grade, quality, variety, type, or size of citrus fruit, the grade, quality, variety, type, and amount of the products thereof whether canned or concentrated or otherwise processed, and the quality, type, size, dimensions, and shape of containers therefor, and to regulate or prohibit the use of containers which have been previously used for the sale, transportation, or shipment of citrus fruit or the products thereof whether canned or concentrated or otherwise processed, or any other commodity; provided, however, that the use of secondhand containers for sale and delivery of citrus fruit for retail consumption within the state shall not be prohibited; provided, however, that no standard, regulation, rule, or order under this section which is repugnant to any requirement made mandatory under federal law or regulations shall apply to citrus fruit, or the products thereof, whether canned or concentrated or otherwise processed, or to containers therefor, which are being shipped from this state in interstate commerce. All citrus fruit and the products thereof whether canned or concentrated or otherwise processed sold, or offered for sale, or offered for shipment within or without the state shall be graded and marked as required by this section and the regulations, rules, and orders adopted and made under authority of this section, which regulations, rules, and orders shall, when not inconsistent with state or federal law, have the force and effect of law. The Department is authorized to conduct citrus research by Section 601.13, Florida Statutes. To help pay for these duties of the Department, the Legislature first enacted the "box tax" in 1949. The box tax is now codified as Section 601.15(3), Florida Statutes. Section 601.15(3)(a), Florida Statutes, provides in relevant part: There is hereby levied and imposed upon each standard-packed box of citrus fruit grown and placed into the primary channel of trade in this state an excise tax at annual rates for each citrus season as determined from the tables in this paragraph and based upon the previous season's actual statewide production as reported in the United States Department of Agriculture Citrus Crop Production Forecast as of June 1. Section 601.15(3)(a), Florida Statutes, goes on to set forth specific rates for fresh grapefruit, processed grapefruit, fresh oranges, processed oranges, and fresh or processed tangerines and citrus hybrids. Section 601.15(1), Florida Statutes, sets forth the Department's authority to administer the box tax, as follows: The administration of this section shall be vested in the Department of Citrus, which shall prescribe suitable and reasonable rules and regulations for the enforcement hereof, and the Department of Citrus shall administer the taxes levied and imposed hereby. All funds collected under this section and the interest accrued on such funds are consideration for a social contract between the state and the citrus growers of the state whereby the state must hold such funds in trust and inviolate and use them only for the purposes prescribed in this chapter. The Department of Citrus shall have power to cause its duly authorized agent or representative to enter upon the premises of any handler of citrus fruits and to examine or cause to be examined any books, papers, records, or memoranda bearing on the amount of taxes payable and to secure other information directly or indirectly concerned in the enforcement hereof. Any person who is required to pay the taxes levied and imposed and who by any practice or evasion makes it difficult to enforce the provisions hereof by inspection, or any person who, after demand by the Department of Citrus or any agent or representative designated by it for that purpose, refuses to allow full inspection of the premises or any part thereof or any books, records, documents, or other instruments in any manner relating to the liability of the taxpayer for the tax imposed or hinders or in anywise delays or prevents such inspection, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. The box tax was challenged in 1936 and the Florida Supreme Court issued an opinion in 1937 upholding the validity of the box tax. C.V. Floyd Fruit Company v. Florida Citrus Commission, 128 Fla. 565, 175 So. 248 (1937). In 1970, the Legislature enacted the "equalization tax," codified as Section 601.155, Florida Statutes. The statute mirrored Section 601.15, Florida Statutes, but added certain processors who were mixing foreign citrus products with Florida products. The purpose of the equalization tax was to have all Florida processors of citrus products help pay for the costs of the Department, rather than have the burden fall entirely on the Florida growers subject to the box tax. Section 601.155, Florida Statutes, provides, in relevant part: The first person who exercises in this state the privilege of processing, reprocessing, blending, or mixing processed orange products or processed grapefruit products or the privilege of packaging or repackaging processed orange products or processed grapefruit products into retail or institutional size containers or, except as provided in subsection (9) or except if a tax is levied and collected on the exercise of one of the foregoing privileges, the first person having title to or possession of any processed orange product or any processed grapefruit product who exercises the privilege in this state of storing such product or removing any portion of such product from the original container in which it arrived in this state for purposes other than official inspection or direct consumption by the consumer and not for resale shall be assessed and shall pay an excise tax upon the exercise of such privilege at the rate described in subsection (2). Upon the exercise of any privilege described in subsection (1), the excise tax levied by this section shall be at the same rate per box of oranges or grapefruit utilized in the initial production of the processed citrus products so handled as that imposed, at the time of exercise of the taxable privilege, by s. 601.15 per box of oranges. In order to administer the tax, the Legislature provided the following relevant provisions in Section 601.155, Florida Statutes: Every person liable for the excise tax imposed by this section shall keep a complete and accurate record of the receipt, storage, handling, exercise of any taxable privilege under this section, and shipment of all products subject to the tax imposed by this section. Such record shall be preserved for a period of 1 year and shall be offered for inspection upon oral or written request by the Department of Citrus or its duly authorized agent. Every person liable for the excise tax imposed by this section shall, at such times and in such manner as the Department of Citrus may by rule require, file with the Department of Citrus a return, certified as true and correct, on forms to be prescribed and furnished by the Department of Citrus, stating, in addition to other information reasonably required by the Department of Citrus, the number of units of processed orange or grapefruit products subject to this section upon which any taxable privilege under this section was exercised during the period of time covered by the return. Full payment of excise taxes due for the period reported shall accompany each return. All taxes levied and imposed by this section shall be due and payable within 61 days after the first of the taxable privileges is exercised in this state. Periodic payment of the excise taxes imposed by this section by the person first exercising the taxable privileges and liable for such payment shall be permitted only in accordance with Department of Citrus rules, and the payment thereof shall be guaranteed by the posting of an appropriate certificate of deposit, approved surety bond, or cash deposit in an amount and manner as prescribed by the Department of Citrus. * * * (11) This section shall be liberally construed to effectuate the purposes set forth and as additional and supplemental powers vested in the Department of Citrus under the police power of this state. In March 2000, certain citrus businesses challenged Section 601.155(5), Florida Statutes, as being unconstitutional. At the time of the suit, Section 601.155(5), Florida Statutes, read as follows: All products subject to the taxable privileges under this section, which products are produced in whole or in part from citrus fruit grown within the United States, are exempt from the tax imposed by this section to the extent that the products are derived from oranges or grapefruit grown within the United States. In the case of products made in part from citrus fruit grown within the United States, it shall be the burden of the persons liable for the excise tax to show the Department of Citrus, through competent evidence, proof of that part which is not subject to a taxable privilege. The citrus businesses claimed the exemption in Section 601.155(5) rendered the tax unconstitutionally discriminatory, in that processors who imported juice from foreign countries to be blended with Florida juice were subject to the equalization tax, whereas processors who imported juice from places such as California, Arizona and Texas enjoyed an exemption from the tax. The case, Tampa Juice Service, Inc., et al. v. Department of Citrus, Case No. GCG-00-3718 (Consolidated), was brought in the Tenth Judicial Circuit Court, in and for Polk County. Judge Dennis P. Maloney of that court continues to preside over that case. In a partial final declaratory judgment effective March 15, 2002, Judge Maloney found Section 601.155, Florida Statutes, unconstitutional because it violated the Commerce Clause of the United States Constitution due to its discriminatory effect in favor of non-Florida United States juice. In an order dated April 15, 2002, Judge Maloney severed the exemption in Section 601.155(5), Florida Statutes, from the remainder of the statute. The court's decision necessitated the formulation of a remedy for the injured plaintiffs. While the parties were briefing the issue before the court, the Florida Legislature met and passed Chapter 2002-26, Laws of Florida, which amended Section 601.155, Florida Statutes, to read as follows: Products made in whole or in part from citrus fruit on which an equivalent tax is levied pursuant to s. 601.15 are exempt from the tax imposed by this section. In the case of products made in part from citrus fruit exempt from the tax imposed by this section, it shall be the burden of the persons liable for the excise tax to show the Department of Citrus, through competent evidence, proof of that part which is not subject to a taxable privilege. Chapter 2002-26, Laws of Florida, was given an effective date of July 1, 2002. By order dated August 8, 2002, Judge Maloney set forth his decision as to the remedy for the plaintiffs injured by the discriminatory effect of Section 601.155(5), Florida Statutes. Judge Maloney expressly relied on the rationale set forth in Division of Alcoholic Beverages and Tobacco v. McKesson Corporation, 574 So. 2d 114 (Fla. 1991)("McKesson II"). In its initial McKesson decision, Division of Alcoholic Beverages and Tobacco v. McKesson Corporation, 524 So. 2d 1000 (Fla. 1988), the Florida Supreme Court affirmed a summary judgment ruling that Florida's alcoholic beverage tax scheme, which gave tax preferences and exemptions to certain alcoholic beverages made from Florida crops, unconstitutionally discriminated against interstate commerce. The Florida Supreme Court also affirmed that portion of the summary judgment giving the ruling prospective effect, thus denying the plaintiff a refund of taxes paid pursuant to the unconstitutional scheme. The decision was appealed to the United States Supreme Court. In McKesson Corporation v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18 (1990), the United States Supreme Court reversed the Florida Supreme Court's decision as to the prospective effect of its decision. The United States Supreme Court held that: The question before us is whether prospective relief, by itself, exhausts the requirements of federal law. The answer is no: If a State places a taxpayer under duress promptly to pay a tax when due and relegates him to a postpayment refund action in which he can challenge the tax's legality, the Due Process Clause of the Fourteenth Amendment obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation. 496 U.S. at 31 (footnotes omitted). The United States Supreme Court set forth the following options by which the state could meet its obligation to provide "meaningful backward-looking relief:" [T]he State may cure the invalidity of the Liquor Tax by refunding to petitioner the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its competitors actually received. . . . Alternatively, to the extent consistent with other constitutional restrictions, the State may assess and collect back taxes from petitioner's competitors who benefited from the rate reductions during the contested tax period, calibrating the retroactive assessment to create in hindsight a nondiscriminatory scheme. . . . Finally, a combination of a partial refund to petitioner and a partial retroactive assessment of tax increases on favored competitors, so long as the resultant tax actually assessed during the contested tax period reflects a scheme that does not discriminate against interstate commerce, would render petitioner's resultant deprivation lawful and therefore satisfy the Due Process Clause's requirement of a fully adequate postdeprivation procedure. 496 U.S. at 40-41 (citations and footnotes omitted). The United States Supreme Court expressly provided that the state has the option of choosing the form of relief it will grant. In keeping with the United States Supreme Court opinion, the Florida Supreme Court granted the Division of Alcoholic Beverages and Tobacco (the "Division") leave to advise the Court as to the form of relief the state wished to provide. The Division proposed to retroactively assess and collect taxes from those of McKesson's competitors who had benefited from the discriminatory tax scheme. McKesson contended that a refund of the taxes it had paid was the only clear and certain remedy, because retroactive taxation of its competitors would violate their due process rights. McKesson II, 574 So. 2d at 115. The Florida Supreme Court remanded the case to the trial court for further proceedings on McKesson's refund claim, with the following instructions: While McKesson may not necessarily be entitled to a refund, it is entitled to a "clear and certain remedy," as outlined in the Supreme Court's opinion. Because nonparties, such as amici, will be directly affected by the retroactive tax scheme proposed by the state, all affected by the proposed emergency rule must be given notice and an opportunity to intervene in this action. Therefore, on remand, the trial court not only must determine whether the state's proposal meets "the minimum federal requirements" outlined in the Supreme Court's opinion, it also must determine whether the proposal comports with federal and state protections afforded those against whom the proposed tax will be assessed. We emphasize that the state has the option of choosing the manner in which it will reformulate the alcoholic beverage tax during the contested period so that the resultant tax actually assessed during that period reflects a scheme which does not discriminate against interstate commerce. Therefore, if the trial court should rule that the state's proposal to retroactively assess and collect taxes from McKesson's competitors does not meet constitutional muster and such ruling is upheld on appeal, the state may offer an alternative remedy for the trial court's review. However, any such proposal likewise must satisfy the standards set forth by the Supreme Court as well as be consistent with other constitutional restrictions. 574 So. 2d at 116. In the instant case, Judge Maloney assessed the options prescribed by the series of McKesson cases and concluded that the only fair remedy was to assess and collect back assessments from those who benefited from the unconstitutional equalization tax exemption. His August 8, 2002 order directed the Department to "take appropriate steps, consistent with existing law, to assess and collect the Equalization tax from those entities which [benefited] from the unconstitutional exemption." On September 18, 2002, the Department promulgated the Emergency Rules at issue in DOAH Case No. 02-3648RE. The Emergency Rules were filed with the Department of State on September 24, 2002, and took effect on that date. They were published in the October 4, 2002 issue of the Florida Administrative Weekly (vol. 28, no. 40, pp. 4271-4272). The full text of the Emergency Rules is: EQUALIZATION TAX ON NON-FLORIDA UNITED STATES JUICE 20ER02-1 Intent. The Court in Tampa Juice Service, et al v. Florida Department of Citrus in Consolidated Case Number GCG-003718 (Circuit Court in and for Polk County, Florida) severed the exemption contained in Section 601.155(5), Florida Statutes, that provided an exemption for persons who exercised one of the enumerated Equalization Tax privileges on non-Florida, United States juice. The Court had previously determined that the stricken provisions operated in a manner that violated the Commerce Clause of the United States Constitution. On August 8, 2002, the Court ordered that the Florida Department of Citrus "take appropriate steps, consistent with existing law, to assess and collect the Equalization tax from those entities which [benefited] from the unconstitutional exemption." It is the Florida Department of Citrus' intent by promulgating the following remedial Rule 20ER02-01 and Chapter 20-15, F.A.C., to implement a non-discriminatory tax scheme, which does not impose a significant tax burden that is so harsh and oppressive as to transgress constitutional limitations. These rules shall be applicable to those previously favored persons who received favorable tax treatment under the statutory sections cited above. Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New 9-24-02. 20ER02-2 Definitions. "Previously favored persons" shall be defined as any person who exercised an enumerated Equalization Tax privilege as defined by Section 601.155, Florida Statutes, but who was exempt from payment of the Equalization Tax due to the exemption for non-Florida, United States juice set forth in the statutory provision, which was ultimately determined to be unconstitutional and severed from Section 601.155(5), Florida Statutes. The "tax period" during which the severed provisions of Section 601.155(5), Florida Statutes, were in effect shall be defined as commencing on October 6, 1997, and ending on March 14, 2002. "Tax liability" shall be defined as the total amount of taxes due to the Florida Department of Citrus during the "tax period," at the following rates per box for each respective fiscal year: Fiscal Year Processed Rate Orange Grapefruit 1997-1998 .175 .30 1998-1999 .17 .30 1999-2000 .18 .325 2000-2001 .175 .30 2001-2002 .165 .18 Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New 9-24-02. 20ER02-3 Collection. The Florida Department of Citrus shall calculate the tax liability for each person or entity that exercised an enumerated Equalization Tax privilege outlined in section 601.155, Florida Statutes, upon non-Florida, United States juice based upon inspection records maintained by Florida Department of Agriculture and Consumer Services and the United States Department of Agriculture. Additionally, the Florida Department of Citrus will provide notice of the calculation to the previously favored persons by certified mail. The notice of the calculation shall contain a statement including the following categories: (a) Tax liability; (b) Gallons; Brix; Type of product; (e) Total solids; (f) Conversion rate; (g) Total boxes; (h) Delineation of non-Florida, United States juice. (2)(a) Contained within the notice will be the various legal options available to those who previously enjoyed the exemption, set forth in proposed Rule 20- 15.003(2), F.A.C. (b) Persons who previously enjoyed the exemption may petition to intervene in the case of Tampa Juice Service, Inc., et al, Consolidated Case No. GCG-003718, presently pending before the Circuit Court of the Tenth Judicial Circuit in and for Polk County. A hearing to consider arguments made by any intervenor, the Plaintiffs and the Florida Department of Citrus is currently scheduled to be heard by the Honorable Dennis Maloney on November 12, 2002, in Bartow, Florida. (3) The Florida Department of Citrus will not oppose the timely intervention of persons who previously enjoyed the subject exemption that wish to present a claim to the Court in the Tampa Juice Service, Inc., et al v. Florida Department of Citrus. However, the Florida Department of Citrus does not waive any argument regarding the validity of the calculation of the tax liability or that imposition of this tax is constitutional. Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New 9-24-02. The Department's "Specific Reasons for Finding an Immediate Danger to the Public Health, Safety or Welfare" were set forth as follows: On March 18, 2002, the Court in the Tenth Judicial Circuit, State of Florida, in and for Polk County, entered a Partial Final Declaratory Judgment in the case of Tampa Juice Service, Inc., et al v. Florida Department of Citrus, Consolidated Case Number GCG-003718. In this order the Court ruled that the exemption in Section 601.155, F.S., for non-Florida, United States juice was unconstitutional. On or about April 15, 2002, the Court severed the exemption for non-Florida, United States juice from section 601.155(5), F.S. On August 8, 2002, the Court held that the Florida Department of Citrus was required to cure the invalidity of the equalization taxing scheme. To cure this invalidity, the Florida Department of Citrus promulgates Rule 20ER02-1, F.A.C., which will serve to implement the Court's order for a nondiscriminatory tax scheme and provide due process protections for the previously favored taxpayers. These rules are being promulgated on an emergency basis to meet time constraints associated with litigation and to establish guidelines which protect the public's and state's interest for the orderly and efficient collection and payment of the tax liability. Without these guidelines, the welfare of the citizens and the state would be adversely affected because of the immediate and widespread impact of the failure of previously favored persons to properly remit the tax. The Department's "Reason for Concluding that the Procedure is Fair Under the Circumstances" was set forth as follows: Promulgation of these guidelines using the emergency rule procedures is the only available mechanism which adequately protects the public interests under the circumstances which require collection and payment of the tax liability. This procedure is fair to the public and to the previously favored persons. It permits promulgation of the necessary guidelines within a time frame which allows the industry to be adequately informed of their duties, responsibilities and rights with respect to the tax liability. In the November 15, 2002 issue of the Florida Administrative Weekly (vol. 28, no. 46, pp. 4996-4998), the Department published the Proposed Rules at issue in DOAH Case No. 02-4607RP. The text of Proposed Rule 20-15.001, Florida Administrative Code, is identical to that of Emergency Rule 20ER02-1, set forth above. The text of Proposed Rule 20-15.002, Florida Administrative Code, is identical to that of Emergency Rule 20ER02-2, set forth above. The text of Proposed Rule 20- 15.003(1)&(3), Florida Administrative Code, is identical to that of Emergency Rule 20ER02-3(1)&(3), set forth above. The text of Proposed Rule 15.003(2), Florida Administrative Code, varies from the text of Emergency Rule 20ER02-3(2), and reads as follows: 20-15.003 Collection. Subsequent to adoption of this rule, the Florida Department of Citrus will provide to the previously favored persons by certified mail a Notice of Tax Liability which shall contain a demand for payment consistent with the above-referenced itemized statement. The Department will deem late payment of Equalization Taxes owed by previously favored persons to constitute good cause, and shall waive the 5 percent penalty authorized by Section 601.155(10), F.S., as compliance with either of the following is established by Department [sic]: Lump sum payment of the tax liability remitted with the filing of Department of Citrus Form 4R (incorporated by reference in Rule 20-100.004, F.A.C.) for the relevant years and then-applicable tax rate(s) per subsection 20-15.002(3), F.A.C., within 61 days of receiving Notice of Tax Liability; or Equal installment payments remitted with the filing of Department of Citrus Form 4R (incorporated by reference in Rule 20-100.004, F.A.C.) for the relevant years and then-applicable tax rate(s) per subsection subsection [sic] 20-15.002(3), F.A.C., over a 60-month period, the first payment being due within 61 days of receiving Notice of Tax Liability pursuant to subsection 20-15.003(2), F.A.C.; or The Good Cause provisions of 601.155(10), F.S., shall not apply to persons who do not comply with paragraph 20- 15.003(2)(a), F.A.C., or paragraph 20- 15.003(2)(b), F.A.C. Failure to pay the taxes or penalties due under 601.155, F.S. and Chapter 20-15, F.A.C., shall constitute grounds for revocation or suspension of a previously favored person's citrus fruit dealer's license pursuant to 601.56(4), F.S., 601.64(6), F.S., 601.64(7), F.S., and/or 601.67(1), F.S. Peace River is a Florida corporation and licensed citrus fruit dealer regulated by Chapter 601, Florida Statutes. As such, Peace River is subject to the rules of the Department. Peace River buys, sells, and manufactures bulk citrus juices. By correspondence dated October 2, 2002, Peace River was notified by the Department that Peace River would be liable for payment of $86,242.41 in Equalization taxes for the tax period of October 6, 1997 through March 14, 2002 (the "tax period"), pursuant to the terms of the Emergency Rules. Fresh Juice is a Florida corporation and licensed citrus fruit dealer regulated by Chapter 601, Florida Statutes. As such, Fresh Juice is subject to the rules of the Department. Fresh Juice buys, sells, and manufactures citrus juices. By correspondence dated October 2, 2002, Fresh Juice was notified by the Department that Fresh Juice would be liable for payment of $45,052.19 in Equalization taxes for the tax period, pursuant to the terms of the Emergency Rules. Sun Orchard is a Florida corporation and licensed citrus fruit dealer regulated by Chapter 601, Florida Statutes. As such, Sun Orchard is subject to the rules of the Department. Sun Orchard buys, sells, and manufactures citrus juices. By correspondence dated October 2, 2002, Sun Orchard was notified by the Department that Sun Orchard would be liable for payment of $45,052.19 in Equalization taxes for the tax period, pursuant to the terms of the Emergency Rules. During the tax period, Peace River, Fresh Juice, and Sun Orchard imported, stored and blended non-Florida, United States citrus juices. Neither Peace River, Fresh Juice, nor Sun Orchard is a party to the lawsuit styled Tampa Juice Service, Inc., et al. v. Department of Citrus, Case No. GCG-00-3718 (Consolidated). Peace River, Fresh Juice, and Sun Orchard contend that they relied on the tax exemption in making business decisions and had no notice that their activities regarding non-Florida, United States juice would be taxable upon the court's striking of the exemption in Section 601.155(5), Florida Statutes. Accordingly, Peace River, Fresh Juice, and Sun Orchard contend that, during the tax period, they had no opportunity to conform their conduct to avoid the tax or position themselves to claim a refund allowed by Section 601.155, Florida Statutes. Peace River, Fresh Juice, and Sun Orchard contend that they have not been obligated by Chapter 601, Florida Statutes, to keep specific records on their use of non-Florida United States citrus juices for the tax period, but admit they keep business records required by law, which may include some business records related to non-Florida United States juice during the tax period. Peace River, Fresh Juice, and Sun Orchard shipped products made with non-Florida, United States juice during the tax period without payment of the Equalization Tax.
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, with establishes the apparatus for settling disputes between Florida produce farmers and dealers who are involved with the farmers' products. Curtis Sanders, a Florida farmer, contends by his complaint that two loads of watermelons grown and harvested in Florida, were sold directly to Great Lakes Produce of Florida, Inc. as set forth below: July 6, 1977, Jubilee Watermelons, 27,440 lbs., at .02 totaling $548.80 July 6, 1977, Jubilee Watermelons, 50,980 lbs., at .02 totaling $1,019.80 Total for all loads $1,568.40 An examination of the testimony offered in the course of the hearing, supports the Petitioner's contention. The Respondent has paid $1,176.30, leaving a balance of $392.10. The Respondent has not paid the $392.10 which it agreed to pay to' the Petitioner and under the facts of the agreement it is obligated to pay the Petitioner.
Recommendation It is recommended that the Respondent be required to pay the Petitioner $392.10 for the watermelons it purchased from the Petitioner. DONE AND ENTERED this 21th 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: Curtis Sanders 630 Colonial Street Live Oak, Florida Roger Serzen c/o Great Lakes Produce of Florida, Inc. Post Office Box 11931 Tampa, Florida 33680
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.
The Issue Whether Respondent, Sweetwater Pointe Homeowners Association, Inc. (Association), properly revived its expired Declaration of Covenants and Restrictions in accordance with sections 720.403 through 720.407, Florida Statutes (2020).
Findings Of Fact Petitioners are parcel owners within the Sweetwater Pointe residential subdivision in Inverness, Citrus County, Florida. Respondent, the Association, is a Florida not-for-profit corporation formed under chapter 617, Florida Statutes, and governed by chapter 720. The Department is the state agency responsible for reviewing and approving submissions from associations seeking to revive declarations of covenants that have expired or otherwise have lapsed. Chapter 720, part III, contains the requirements for revitalization and also contains the specific responsibilities of the Department. Restrictive Covenants and Other Governing Documents In January 1987, Little Prince Communications, Inc., recorded a “Declaration of Covenants, Conditions and Restrictions of Sweetwater Pointe” in the public records of Citrus County, Florida, governing 62 lots in the Sweetwater Pointe residential subdivision (Restrictive Covenants). The Articles of Incorporation for the Association were recorded on April 7, 1987. Authority for the enforcement of the Restrictive Covenants was subsequently transferred to the Association. The Restrictive Covenants were amended in June 2002. By operation of the Marketable Record Title Act (MRTA), chapter 712, Florida Statutes, the Restrictive Covenants expired 30 years from their initial recording, in January 2017. According to the testimony of Ms. Spires-Hanssen, a copy of the bylaws of the Association was discovered when the Association’s prior management company—Village Services—provided the Association with boxes of various Association documents. A document that she identified as the Association’s bylaws had, in numerous places, handwritten strike-throughs of certain portions, and handwritten notes, edits, or additions throughout. Ms. Spires-Hanssen testified that “there was a lot of controversy whether the bylaws existed or didn’t exist.” The Association received an opinion from its attorneys that the document identified in paragraph 8 above was a valid copy of the bylaws. She further testified that at some point in the past, the Association attempted to amend its bylaws, which led her to believe that the marked-up document referenced in paragraph 8 was the original bylaws of the Association. Mr. Stephenson, a former board member of the Association from 2000 to 2003, and again in 2019, testified that during his service as board member, he did not believe that there were bylaws. He stated that he had searched for “valid” bylaws previously, but was unsuccessful. He testified that the Association decided to not record a copy of what he believed were draft bylaws when the Association amended the Restrictive Covenants in June 2002 “[b]ecause as far as the board knew, we had no bylaws.” The undersigned notes that there do not appear to be any recorded bylaws of the Association. However, neither chapter 617 nor the statutory procedures for revitalization require that the Association bylaws be recorded. Revitalization Process In 2020, in an effort to revitalize the expired Restrictive Covenants, the Association formed an Organizing Committee, which was comprised of the three serving board members: Ms. Spires-Hanssen; Tricia Berry; and Nolan Toth. At some point in 2020, the Organizing Committee prepared a packet of documents that contained the following documents (Owners Packet): Cover letter with instructions to homeowners from the members of the Organizing Committee; Second cover letter from Ms. Spires-Hanssen; “Revived Declaration of Covenants, Conditions and Restrictions of Sweetwater Pointe”; “Revived Articles of Incorporation of Sweetwater Pointe Homeowners Association, Inc., a Corporation Not for Profit”; “Revitalized By-Laws of Sweetwater Pointe Homeowners Association, Inc”; A list of all parcels in the Sweetwater Pointe residential subdivision, including parcel owner(s), property address, legal description, and parcel I.D. number; Various legal and graphical descriptions of the Sweetwater Pointe residential subdivision; and A “Written Joinder and Consent to the Revived Declaration of Covenants and Governing Documents of Sweetwater Pointe Homeowners Association, Inc.” (consent joinder), which provided an owner to manifest agreement with revitalization through its execution. The cover letter with instructions to homeowners, contained in the Owners Packet, contained the names, addresses, and phone numbers of all three of the Organizing Committee members. The Association introduced into evidence copies of documents entitled “Property Owner Information Sheet,” in which property owners within the Sweetwater Pointe residential subdivision provided, inter alia, contact information, and authorization to receive communications and documents electronically, via email. Petitioners Samuel Arnold, Tammy Arnold, Steven Crowley, and Sherry Crowley completed a Property Owner Information Sheet and consented to receiving communications and documents electronically, and provided an email address for such communications and documents. The Association introduced additional evidence that the Organizing Committee distributed the Owners Packet by hand delivery or regular mail to all of the record owners in the Sweetwater Pointe residential subdivision. Ms. Spires-Hanssen testified that the Organizing Committee mailed the Owners Packet to the parcel owners who had not received the documents by hand delivery, including all of the Petitioners. The evidence introduced indicated that Owners Packets were mailed on May 27, 2020, with an expected delivery date of May 30, 2020. Ms. Spires-Hanssen testified that the Organizing Committee received 44 consent joinders from parcel owners who agreed with the proposed revitalization; however, the Organizing Committee rejected two of the consent joinders for various issues. Ultimately, she testified that the Organizing Committee received 42 properly-executed consent joinders. Therefore, a majority of the 62 parcel owners elected to proceed with the revitalization process. On September 11, 2020, the Association’s attorney, Brian S. Hess of the law firm Clayton & McCulloh, mailed to the Department a packet of documents that sought approval of the revitalization of the Restrictive Covenants (Department Packet). The Department Packet contained: “Revived Declaration of Covenants, Conditions and Restrictions of Sweetwater Pointe”; “Revived Articles of Incorporation of Sweetwater Pointe Homeowners Association, Inc., a Corporation Not For Profit”; “Revitalized By-Laws of Sweetwater Pointe Homeowners Association, Inc.”; Verification of copies of previous “Declaration of Covenants and Other Previous Governing Documents for the Community”; Legal descriptions of each parcel subject to the “Revitalized Declaration and other Governing Documents”; Graphical description(s) of affected properties; Affidavit of Compliance; Verification of Written Consents; “Written Joinders and Consents to the Revitalized Declaration of Covenants and Governing Documents of Sweetwater Pointe Homeowners Association, Inc.”; Affidavit of President; and Letter to parcel owners explaining and enclosing covenant revitalization documents. In a letter dated October 20, 2020, the Department approved the proposed revitalization of the Restrictive Covenants. On November 3, 2020, the Organizing Committee recorded the Revitalized Declaration of Covenants, Conditions and Restrictions of Sweetwater Pointe; the Revived Articles of Incorporation; and Revitalized By- Laws with the Citrus County Clerk. On November 21, 2020, the Organizing Committee mailed to the parcel owners who had not consented to receive notice electronically, the recorded documents, as well as the Department’s October 20, 2020, letter. On that same date, the Organizing Committee emailed electronic copies of these documents to the parcel owners who previously consented to receiving notice electronically. Issues Raised by Petitioners Petitioners raised various issues concerning the documents included in the Owners Packet. Petitioners contend that the cover letter from the members of the Organizing Committee made numerous false or misleading statements that failed to alert parcel owners that the Restrictive Covenants had expired. For example, the cover letter’s statements that there was a “risk” that the Restrictive Covenants could be extinguished by MRTA, and that an extinguishment could be “disastrous” for the Sweetwater Pointe community, were, according to Petitioners, misleading. The undersigned finds that the Owners Packet contained the documents required under section 720.405, and when considered as an entirety, the Owners Packet was not false or misleading. Next, Petitioners contend that there were never governing bylaws of the Association, so inclusion of the bylaws in the Owners Packet was improper. With respect to the inclusion of a copy of the bylaws in the packet, Ms. Spires-Hanssen testified credibly that the bylaws found in the trove of documents provided by the previous management company were the bylaws the Organizing Committee decided to include in the Owners Packet, upon advice of counsel. Although she could not attest that the various handwritten strike-throughs and notations were in the original draft of the bylaws, she testified that she provided this document to the Association’s attorney. She further testified that the previous management company, and the Association’s attorney, retyped the bylaws included in the Owner’s Packet, so that this newly-typed document did not reflect the strike-throughs and notations that were in the original document.1 Issue Raised by Respondent The Association elicited testimony and introduced evidence of the actions of individual Petitioners during the revitalization process that it contends establishes that Petitioners brought the instant action for an improper purpose. For example, one of the Petitioners filed a complaint with the Association’s insurance company. As another example, one of the Petitioners filed a complaint against Ms. Spires-Hanssen, a Florida-licensed real estate broker, with the Department of Business and Professional Regulation, which involved allegations concerning the proposed revitalization. The undersigned does not find that these activities were 1 Petitioners also introduced evidence that the Written Joinder and Consent document included in the Owners Packet failed to include specific reference to the revived or revitalized bylaws, although a copy of the “Revitalized By-Laws of Sweetwater Pointe Homeowners Association, Inc.,” was included in the Owners Packet. Petitioners failed to raise this issue in their Amended Petition or their unilaterally-filed Pre-hearing Statement, and did not address it any further in their Proposed Recommended Order. primarily to harass or cause unnecessary delay for the underlying revitalization matter, or were for a frivolous purpose or to needlessly increase the cost of the instant matter.
Conclusions For Petitioners: Brandon J. Stewart, Esquire Attorneys Justin Clark & Associates, PLLC 500 Winderley Place, Suite 100 Maitland, Florida 32751 For Respondent: Frank A. Ruggieri, Esquire The Ruggieri Law Firm, P.A. 111 North Orange Avenue, Suite 725 Orlando, Florida 32801
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Department of Economic Opportunity enter a final order approving the revitalization of the Sweetwater Pointe Homeowners Association, Inc.’s, expired Restrictive Covenants and governing documents. DONE AND ENTERED this 5th day of January, 2022, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 5th day of January, 2022. COPIES FURNISHED: Justin Clark, Esquire Attorneys Justin Clark & Associates, PLLC Suite 100 500 Winderley Place Maitland, Florida 32751 Brandon J. Stewart, Esquire Attorneys Justin Clark & Associates, PLLC Suite 100 500 Winderley Place Maitland, Florida 32751 Tomika Spires-Hanssen Sweetwater Pointe Homeowners Association, Inc. Post Office Box 636 Inverness, Florida 34451 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Jaiden Foss, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Frank A. Ruggieri, Esquire The Ruggieri Law Firm, P.A. Suite 725 111 North Orange Avenue Orlando, Florida 32801 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399
