The Issue The issues in these cases are whether the University of Central Florida should reject all proposals for soft drink vending in response to its Request for Proposal No. 7028DCS or, if not, whether it should award the contract to the Florida CocaCola Bottling Company or to the National Beverages, Inc., d/b/a Pepsi-Cola.
Findings Of Fact The RFP On July 18, 1996, UCF issued RFP 7028DCS entitled "Soft Drink Vending Machine Services" to select a vendor to install, operate and maintain vending machines and to provide the syrup to be dispensed from soda fountains on the campus of the University of Central Florida in Orlando. National Beverages, Inc., d/b/a Pepsi-Cola (Pepsi) and Florida Coca-Cola Bottling Company (Coke) were parties to existing contracts set to expire September 30, 1996. UCF sought the selection of a single or "exclusive" soft drink vendor to increase the financial return to the University. UCF's Purchasing Procedures manual, in defining the term "Request for Proposal (RFP)," states that an RFP is intended to allow for proposal flexibility, as opposed to an Invitation to Bid (ITB). It provides that an RFP "is used when the agency is incapable of specifically defining the scope of work for which the contractual service is required, and when the agency is requesting that a qualified offeror propose a commodity, group of commodities, or contractual service to meet the specifications of the solicitation document." The cover sheet (front and back) of the RFP was from a standard form of the Department of Management Services, Division of Purchasing, that the UCF Division of Purchasing adapted for its use. UCF's 35 page attachment to the standard form set forth the scope of competition, terms and conditions, selection criteria, and financial considerations. Section 4.7 of the RFP, entitled "Contacts," provided: No negotiations, decisions or actions shall be initiated or executed by the proposer as a result of any discussion with any University employee. Proposers may not consider any verbal instructions as an official expression on the University's behalf. Only those communications that are in writing from the University~s Purchasing Department shall be considered as a duly authorized expression on behalf of the University. Also, only communications from proposers that are signed and in writing will be recognized by the University as duly authorized expressions on behalf of the proposer. Section 4.10 of the RFP, entitled "Point of Contact," gave notice to all proposers that "Donna Wagner, Purchasing Division," was each proposer's "point of contact for all matters relating to this Request for Proposal." Paragraph 13.2 of the RFP provided: All proposals will be evaluated by a committee. The Evaluation Committee will utilize a weighted point system to create a list of proposals in rank order. Committee members will individually review each proposal, assigning points according to the criteria in [RFP Section] 13.3. The evaluation criteria and point values in RFP Section 13.3 were: 15 points 1. Experience and service in comparable size operations, listing number of years service. 20 points 2. List of products to be offered: include size and price. 50 points 3. Financial return to the University. Commissions and other proposed contributions to the University. Creative options that may be proposed by vendor. 05 points 4. Marketing and public relations plans. Presentation should include some marketing plans. 10 points 5. Completeness of proposals, i.e., the degree to which it responds to all requirements and information contained herein. Pre-Proposal Conference and RFP Addendum On July 25, 1996 UCF Director of Business Services, Dr. Tim Carroll, convened a pre-proposal conference at which he received questions from proposers and provided answers on behalf of the University. The University's normal practice was to keep a record of questions asked and answered at a pre-proposal conference, and to keep a record of the proceedings, typically consisting of a staff member's notes. The July 25, 1996 pre-proposal conference was neither recorded on audio tape nor the subject of any UCF employee's notes of the questions asked and answered. UCF did, however, publish a one-page addendum to the RFP based upon occurrences at the preproposal conference. UCF issued the Addendum July 29, 1996. Paragraph 7.6 of the RFP stated: At the end of the Canteen contract (July 31, 1998), the University may consider, but is not obligated to approve, the addition to juice products to this Agreement. The RFP Addendum specified that juice and cup-drink vending fell within the scope of the existing contract of Canteen, Inc. Pepsi understood this to mean that vending of juice and cup-drinks was beyond the scope of the RFP; Coke understood this to mean that its RFP could include a proposal to sell juice and cup-drinks upon termination of the Canteen contract. Pepsi representative Debbie Fekany attended the pre- proposal conference and, knowing that there were 76 vending machines currently on campus (38 Pepsi's and 38 Coke's), asked about the need for additional machines. Her contemporaneous notes indicate that, in response to her question, Dr. Carroll told the participants that proposers should anticipate that the subject of new machines would be addressed during the negotiation of a contract after the award. The Addendum simply set forth the number of cases (28,911) sold at the University during the preceding fiscal year. Although Pepsi did not prove that proposers were told that the number 76 would be used as the baseline for proposal evaluation, Pepsi was given to understand from Carroll and the Addendum that responses to the RFP could not include proposals for more than 76 machines. Meanwhile, Coke understand that proposals for more than 76 machines would be acceptable. The RFP Addendum also clarified that the RFP required proposals for both a commission rate and a "minimum guarantee." Without the Addendum, the REP included the following pertinent provisions: 11.1 Commissions . . . The University shall receive the larger of the earned commissions or a guaranteed amount of annual revenues. 11.7 Annual Commission . . . the vendor shall pay the University the additional payments due, if any, to equal the guaranteed annual commission required in this contract. . . . On expiration or termination of this contract, partial year guaranteed minimum commissions due, if any, shall be calculated on a pro rata basis. Commission on Sales The proposer proposes to pay to the University the following percentage-based commission on the net sales of beverage vending items: % and/or; The University will estimate its potential revenue from the proposed percentage commission by using data from prior experience which indicates total annual volume of sales in dollars. Annual Payment The proposer proposes to guarantee to the University as revenues from beverage vending sales an annual payment of the larder of: the aggregate percentage-based commissions earned from beverage vending sales over each contract year or the following fixed dollar amount: $ 7.3 Adjustment of Commissions or Guarantees After the initial contract year, the parties, by mutual agreement, may adjust the commissions or guarantees of this contract where circumstances beyond the control of either party require adjustments . . . . It is clear from the REP, with Addendum, that UCF was seeking proposals for a guaranteed minimum annual revenue, subject to the possibility of more revenue to the University on a commission basis. Any proposer, in the course of describing how it would generate the sums proposed to be paid in the proposed venture, would naturally describe manner in which the funds would be generated. But such a description could not condition the proposal so as to defeat the requirement of a minimum guarantee, or the proposal would not be responsive. The Evaluation Committee On July 31, 1996, Dr. Tim Carroll finalized the selection of Evaluation Committee members. Those members were Jack Winstead (Purchasing Director); Marty Rouse (Dr. Tim Carroll's Assistant); Philip Goree (a retired University Vice President); David Finnerty (Director of University Publications); Tom Messina (Director of Alumni Affairs) and Art Zeleznick (of the Athletic Department. On August 8, 1996, Pepsi and Coke submitted proposals. No other companies submitted proposals. Copies of the proposals, along with copies of the REP, immediately were circulated to all members of the Evaluation Committee. On August 15, 1996, at 9:00 a.m., the Evaluation Committee convened to consider the proposals submitted by Pepsi and Coke. All members had adequate time to review the proposals before the meeting. In addition, at the meeting, Committee members were given a financial summary prepared by Philip Goree for their consideration. The Evaluation Committee meeting lasted an hour. During the meeting, Committee members asked questions, raised concerns, listened to information provided by other Committee members, as well as by representatives of the University's Department of Business Services who would be administering the contract. Based on these discussions, it was decided that the dollar values attributed to marketing proposals by each proposer should not be considered in the financial analysis of the proposals because these dollar values were "soft," and their actual value to the University could not be measured. (Pepsi had assigned $75,000 as the value of its marketing proposal--including product donations-while Coke had assigned a value of $28,000 to its marketing proposal.) The Committee also discussed deducting the bonuses proposed by each proposer because the proposers could not guarantee the conditions upon which they were offered. But it was decided that the bonuses could be considered as a "creative option" offered under REP Section 13.3. Pepsi's bonus was a onetime payment of $50,000 if, within the first three years of the five-year term of the contract, UCF extended Pepsi's contract to ten years. Coke's bonus was a $50,000 per year payment for each of the five years of the contract if UCF awarded Coke the bottle/can juice vending business upon the expiration of the Canteen contract on July 31, 1998, and if UCF awarded Coke the bottle/can and post-mix business at the proposed new Student Union Food Court when it was built and put in operation. At the end of the meeting, each Evaluation Committee member separately assigned points to the proposals in accordance with the criteria, and all six members gave Coke a higher score. The Posting Un-Postinq and Re-Postinq At approximately 10:00 a.m. on August 15, 1996, the Purchasing Department posted a notice of the University's intention to award the contract to Coke. The language of the tabulation sheet signed by Purchasing Director Winstead found that "the low proposer meets minimum REP specifications" and, in the space provided, identified no proposers that "do not meet minimum REP specifications." On August 15, 1996, at 10:56 a.m., Business Services Director Carroll sent an electronic mail message to his (and Winstead's) boss, Dr. Joyce Clampitt. That message stated: "By unanimous vote, the [Evaluation] committee has selected the Coke proposal. Based on that vote, I recommend that you and Mr. Merck approve the selection and give me notice to proceed to draft a contract for service." At or about noon on August 15, 1996, the Purchasing Department took down the notice that had been posted at 10:00 a.m. to afford the University President and Vice President time to review the matter and make the final decision. Word of the August 15 posting had made its way to the Athletic Department and, from there, to Pepsi account representative for UCF, Debbie Fekany. When she called on August 15 or 16 to get information, Winstead told her that the award decision was not posted at the time but that he would notify her when it was posted. On August 23, 1996, at 10:00 a.m., the University's notice of intention to award the contract to Coke was posted for the second time. No alteration was made to the initial determinations respecting the responsiveness of the Pepsi and Coke proposals. On August 23, 1996, Winstead notified Fekany of that day's posting, and Pepsi filed its Notice of Protest. Fekany began to review the Coke proposal in light of the terms of the REP and to seek information about what had occurred in the review process. Pepsi's Reaction On August 26, 1996, Winstead wrote a letter inviting Pepsi representatives to attend an informal meeting "to afford you every opportunity to become aware of the evaluation process used by the reviewing committee, which, after careful deliberation, decided upon the proposed award to Coca-Cola." That meeting took place August 29, 1996, and at that time Debbie Fekany and a person to whom she reports, Ronaldo Swilley, identified Pepsi's concerns to the University representatives in attendance---Winstead, Dr. Tim Carroll, and Marty Rouse. The concerns raised by Pepsi's representatives in the August 29, 1996, informal meeting were as follows: (1) the inclusion of $250,000 that Coke proposed to provide if UCF were to make a present commitment to allow Coke to vend juices upon the 1998 conclusion of the Canteen, Inc. contract and if Coke received a present commitment that it would be allowed to make sales in the yet-to-be-constructed Student Union; (2) deletion of the $75,000 in benefits to UCF that Pepsi had proposed to provide in response to the marketing criterion; (3) the consideration of comments by Evaluation Committee member Marty Rouse to the effect that Pepsi's service was deficient and that its proposal incomplete because it did not mention a full-time route person as required by the RFP; and (4) the evaluation of the Coke proposal on the basis that it would generate revenues using 120 vending machines, rather than the existing number of 76. In the August 29 informal meeting, Tim Carroll reiterated a point he had made at the pre-proposal conference: UCF was not at the time of the competition willing to put 120 vending machines on campus and that a decision regarding increasing the number of vending machines would be made after the contract award was announced. On August 29, Pepsi informed UCF that the University's consideration of Coke's $250,000 juice sale/student union bonus had enabled Coke to receive not only a higher evaluation in the point-intensive category of "financial return to the university," but a higher evaluation overall. The Coke proposal acknowledged that its $250,000 juice sale/student union bonus was outside the scope of RFP terms: Coca-Cola would like to make an additional proposal that goes outside the requirements of the University of Central Florida's RFP. Coca-Cola would like to invest an additional $50,000 per year in unrestricted funds in return for the following additional rights on campus: Coca-Cola automatically secures the bottle/can juice vending business on August 1, 1998 with the appropriate competitive commissions. Coca-Cola secures the bottle/can and post-mix business in the student union food court (current and future brand concepts) on an exclusive basis. Coca-Cola will provide the necessary beverage equipment needed to fully equip the student union food court. In response to Pepsi's persistent efforts to communicate its concerns about the evaluation process, UCF scheduled a session on September 17, 1996, at which Pepsi and Coke could make presentations to the Evaluation Committee. (No such opportunity had been provided in connection with the August 15, 1996, meeting.) By letter dated August 30, 1996, Winstead notified Pepsi that the deadline for filing a formal protest was being suspended beyond September 3, 1996, pending the presentations. Pepsi Lobbies Evaluation Committee Members Between August 29 and September 17, 1996, Debbie Fekany telephoned two Evaluation Committee members, Tom Messina and David Finnerty, and arranged a meeting with the two of them on September 13, 1996. By the time of the meeting, all three knew of the scheduled September 17 presentation meeting. At the September 13 meeting, Fekany inquired as to the participation of Messina and Finnerty in the Evaluation Committee's work and discussed essentially the same matters she and Swilley had discussed with Winstead, Carroll and Rouse on August 29. She concluded by asking Messina and Finnerty to reconsider the Pepsi proposal. Fekany also met with another Evaluation Committee member, Art Zeleznik, on September 13, 1996. There is no explicit evidence concerning Fekany's discussions with Zeleznick, but it can be inferred that they were similar to her discussions with Messina and Finnerty. Fekany made it clear that she had a dual purpose in all of her contacts with University personnel involved in the RFP after the opening of the proposals. One was to discover why the Coke proposal was selected over the Pepsi proposal. The other was to persuade the University to reconsider and to select the Pepsi proposal. Neither Fekany, Zeleznick, Messina, nor Finnerty informed the other members of the Evaluation Committee, any other UCF personnel or any Coke representatives that Fekany had met with them on September 13, 1996, on the subjects of the RFP, the responsive proposals and the Evaluation Committee's deliberations. The Presentation Meeting At the September 17 presentation meeting, Debbie Fekany again outlined the points that she had raised with Winstead, Carroll, and Rouse at the August 29 informal meeting. At one point in the meeting, Winstead expressly declared to the Pepsi and Coke representatives, and to the Evaluation Committee members, that both proposals met all of the requirements of the RFP. Discussion among committee members was not facilitated at the September 17 presentation session. The meeting was adjourned, and no date was set for the Committee to convene. Evaluation Committee Polling On September 24, 1996, the University's General Counsel, Beth Liberto, wrote a memorandum and caused it to be circulated among the Evaluation Committee members. The memorandum contained places for Committee members to sign to indicate whether or not they would either "agree to make no change to original recommended award" or, alternatively, "agree that original recommended award needs to be reconsidered by the Committee." The memorandum was circulated first to Philip Goree, Marty Rouse, and Jack Winstead, who had job responsibilities in the Purchasing or Business Affairs Divisions. They signed indicating that they agreed "to make no change to original recommended award." After they had signed the memorandum, it was circulated to the three Committee members who did not have administrative responsibilities inside the Purchasing or Business Affairs Divisions: David Finnerty, Tom Messina and Art Zeleznick. They signed indicating their agreement "that original recommended award needs to be reconsidered by the Committee." The Evaluation Committee was deadlocked. UCF never provided notification to the public or to the proposers of the August 15 Evaluation Committee meeting or the circulation of Liberto's September 24 vote-by-signature memorandum. UCF never reconvened the Committee. Instead, the matter was referred to UCF Vice President for Business and Financial Affairs, William F. Merck II. Merck/Coleman Evaluation Merck drafted a document entitled "Notes on Evaluation Criteria." In that document, Mr. Merck graded the Coke proposal higher than the Pepsi proposal. He gave Coke additional points for including the $250,000 juice sale/student union bonus and Pepsi fewer points based upon his assessments of the prices of Pepsi drinks and his inference that Pepsi had not provided for an on-site route person. His memorandum did not refer to REP provisions that pertained to such provisions. Merck showed his draft to Dr. Daniel R. Coleman, Director of Institutional Research and Planning Support at UCF, and asked him to review it and comment. The evidence showed that it was not unusual for Merck to rely on Coleman for in-depth analyses of this sort in aid of the University's decision-making process. After reviewing Merck's draft, Coleman told Merck that he agreed with Merck's overall approach but recommended an in- depth analysis of the financial considerations to buttress Merck's document (so that it would "stand up in court.") Merck agreed and assigned the task to Coleman. Coleman also raised the question whether the Coke proposal included an unconditional minimum guarantee of revenue to the University. Merck advised him to ask Carroll about it. Carroll assured Coleman that both proposers had guaranteed their minimum revenue figures unconditionally. Coleman accepted Carroll's assurance, thinking that there was a separate written guarantee but not asking to see it--a failure Coleman later called a mistake on his part. As a result, neither Carroll, Merck, nor Coleman gave any further consideration to the question whether the proposals were responsive on the minimum guarantee. During his financial analysis, Dr. Coleman had a question as to the monetary value of the marketing efforts being proposed. He contacted Carroll and asked him for some additional information. Carroll contacted the proposers and asked them to provide more detail. Pepsi and Coke both responded to Carroll. Pepsi's response was in the form of a report to Carroll; Coke's response was in the form of the addition of pages 61 and 62 to its proposal. (These pages should have been included in the complete version of Joint Exhibit 3 furnished by Coke after the conclusion of the final hearing, but they were not.) Carroll passed the responses along to Coleman, who incorporated the information in his financial analysis. As a result, Pepsi received credit for an additional $10,000 of marketing dollars over what was contained in its proposal, and Coca-Cola received credit for over $70,000 additional marketing dollars over what was contained in its original proposal. Coleman's analysis also included consideration of other information that he solicited and received in October, 1996, from individuals not involved in the evaluation process. He conferred with University officials to verify dollar values of certain items included in the proposals and to convert the dollar figures to constant dollars. Coleman completed his financial analysis and provided it to Merck on October 23, 1996. According to the analysis, the two proposals were very close in terms of financial consideration to the University. It valued the Coke proposal at $2,448,432 cash over five years, compared to $2,428,604 for Pepsi. Overall (including marketing dollars), it valued the Coke proposal at $2,920,932 over five years, compared to $2,889,479 for Pepsi. Merck accepted the analysis as support for the final version of his "Notes on Evaluation Criteria," which was dated October 17, 1996. On October 24, 1996, Purchasing Department Director Jack Winstead informed Pepsi that UCF had decided to adhere to its earlier determination to award the contract to Coke. Winstead's notification included copies of Merck's "Notes on Evaluation Criteria," dated October 17, 1996, and Coleman's financial analysis. Pepsi's First Protest Winstead's notification also gave Pepsi ten days to file its formal protest. On November 1, 1996, Pepsi filed its Formal Written Protest. Final hearing was scheduled for December 12, 1996. Rejection of All Proposals During the course of his conference with UCF General Counsel on December 11, 1996, in preparation for final hearing, Coleman mentioned what he remembered to be his earlier concern that Pepsi's guarantee was conditional in nature. Liberto was concerned and interested, and they examined the proposals. When they did, Coleman recalled that his concern had been with Coke's guarantee, not Pepsi's. Pepsi's response to Section 14.2 of the REP stated that its guarantee was: conditional upon 50` of the vendors on campus being 20 oz. or variety vendors. Additionally, this guarantee is conditional upon vendors not being removed, mech rates not being changed and product and/or packages not being changed without the agreement of Pepsi. The Coke response to Section 14.2 of the REP stated: Guarantee is based and will be paid with the stipulation that all recommended vendors are placed at desirable locations. * * * Commission guarantee is submitted based on volume projections at the number of vendor placements shown. UCF General Counsel Beth Liberto thought both proposers' guarantees were conditional. (She had never before examined the proposals.) Coleman told Liberto that he had talked to Carroll to assure himself that Coke's guarantee was not conditional and that Carroll had assured him that the minimum guarantees of both proposers were unconditional. However, Coleman told her, he had not seen the guarantees in writing. They called Carroll in, and Liberto asked Carroll to see the written guarantees. Carroll told her that he had no writing other than the proposals themselves. At this point, Liberto "went ballistic" and told Carroll, "then you have nothing." Section 5.15 of the REP reserved the right to waive "minor irregularities in proposals" but defined such minor irregularities to include only those "that have no adverse effect on the University's interest, will not affect the amount of the proposal and will not give a proposer an advantage or benefit not enjoyed by another proposer." Liberto saw no reason to consult with other sources or do further research on the question whether the failure to unconditionally guarantee minimum revenues to UCF was material. She based her decision in this regard on her "legal experience of what material terms in contracts are . . . [b]ecause what the RFP was was the model for a contract." As the person responsible for approving all University contracts for legal sufficiency, Liberto was concerned that the minimum guarantee as proposed could not be enforced under the conditions set out in the proposals and that the loss in substantial dollars to UCF was material. Liberto next conferred with outside counsel for UCF concerning her discovery, and outside counsel concurred with Liberto's opinion. UCF reserved the right in Section 13.1 of the RFP to reject any and all proposals and to make the award in the best interest of the University. The RFP also gave notice: WHILE IT IS THE INTENTION OF THE UNIVERSITY TO ISSUE AN AWARD BASED ON THE PROPOSAL SUBMITTED IN RESPONSE TO THIS REQUEST FOR PROPOSAL, PLEASE TARE NOTICE THAT THE UNIVERSITY RESERVES THE RIGHT TO REJECT ALL PROPOSALS AND TO AWARD THE CONTRACT BY NEGOTIATION WITH A VENDOR SELECTED AT THE UNIVERSITY'S DISCRETION. THE UNIVERSITY IS NOT OBLIGATED TO AWARD A LICENSE SUCH AS THIS PURSUANT TO COMPETITIVE PROPOSALS. THE UNIVERSITY HAS NO OBLIGATION TO REISSUE ANY REQUEST FOR PROPOSALS AFTER ALL PROPOSAL [SIC] HAVE BEEN REJECTED. Later on December 11, 1996, Liberto authored a letter for the signature of UCF President rejecting both proposals as being non-responsive for failing to unconditionally guarantee minimum revenues to UCF and giving notice that UCF intended to reinitiate the RFP process. Final hearing on Pepsi's protest was continued. Pepsi's Second Protest Pepsi protested the intended rejection of both proposals, contending that its proposal should not be rejected and that the award should go to Pepsi. Coke did not protest, but it intervened in Pepsi's protest and has taken the position that its proposal should not be rejected and that the award should go to Coke. It is found that the University's intended action to reject all proposals was not, as alleged by Pepsi, a dishonest and fraudulent concoction of its attorneys for purposes of avoiding the risk of losing if the case went to final hearing on December 12, 1996. Rather, it is found that Coleman revealed to UCF's attorneys and President Hitt the facts upon which they took action for the first time on December 11, 1996, and that the reactions of UCF's attorneys and its President were genuine reactions to those facts. Finally, it is found that their intended action to reject all proposals was not arbitrary but rather was based on the facts and the law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the University of Central Florida enter a final order rejecting all proposals. RECOMMENDED this 19th day of March, 1997, at Tallahassee, Florida. _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1997. COPIES FURNISHED: Frank Scruggs, Esquire David Oliver, Esquire Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. 515 East Las Olas Boulevard, Suite 1500 Ft. Lauderdale, Florida 33301 Mary Beth Liberto General Counsel Sherry G. Andrews Associate General Counsel University of Central Florida Post Office Box 160015 Orlando, Florida 32816-0015 Eli H. Subin, Esquire Subin, Rosenbluth, Losey, Brennan, Bittman & Morse, P.A. 111 North Orange Avenue, Suite 900 Post Office Box 4950 Orlando, Florida 32802 Gregg A. Gleason General Counsel Board of Regents 325 West Gaines Street, Suite 1522 Tallahassee, Florida 32399-1950 Roland A. Sutcliffe, Jr., Esquire Charles B. Costar, III, Esquire Zimmerman, Shuffield, Kiser & Sutcliffe, P.A. Post Office Box 3000 Orlando, Florida 32802
The Issue Whether Respondent, Donnie Selph, d/b/a The Citrus Store and D & D Citrus (Donnie Selph), failed to pay amounts owning to Petitioner for citrus fruit harvested from Petitioner's groves, as set forth in the Complaint dated October 13, 2003, and, if so, the amount Petitioner is entitled to recover.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; stipulations by the parties; documentary materials received in evidence; evidentiary rulings made pursuant to Sections 120.569 and 120.57, Florida Statutes (2003); and the entire record of this proceeding, the following relevant and material findings of fact are determined: At all times material to this proceeding Russ Putnal was a "producer of citrus fruit" and owner of Putnal Groves located at 10755 Russ Road, Myakka City, Florida. A producer of citrus is one that grows citrus in this state for market. At all times material to this proceeding, Donnie Selph was a "Florida-licensed [License Number 756] citrus fruit dealer" operating within the Department's regulatory jurisdiction. Donnie Selph admitted that he is owner of and does business under the names of The Citrus Store and D & D Citrus. On October 13, 2002, Donnie Selph entered into a written contract with Russ Putnal under which Donnie Selph agreed to harvest 10,000 boxes of mid-season oranges on or before June 1, 2003. Donnie Selph agreed to pay $4.35 per box for the mid-season oranges and agreed to pay $6.35 per box for the late-season (grove production) Valencia oranges harvested from Russ Putnal's groves. The form contract, dated January 29, 2003, entered into by Donnie Selph and Russ Putnal contained the following terms and conditions: [T]he Grower, for and in consideration of the payment this date received and to be received as herein provided, has agreed and do by these presents agree to sell to the Buyer all citrus fruits, of merchantable quality at the time of picking, from the grove or groves hereinafter mentioned. The price to be paid to the Grower by the Buyer for said fruit per standard field crate by volume or weight ["weight" was circled] at election of buyer on the trees, for all fruit of merchantable quality at the time of picking, shall be as follows: Oranges, mids, 10,000 boxes (or production), $4.35 [per] box Valencia Oranges, 40,000 boxes (or production), $6.35 [per] box The term "merchantable" as used herein shall be defined as that standard of quality required by the United States Department of Agriculture for interstate shipment in fresh/juiced ["juiced" was circled] fruit form. . . . * * * It is agreed that the advance payment hereby receipted for is to be deducted from said payment as follows: As fruit is harvested, $12,000.00, ck# 6318 * * * Note: Less all state taxes owned by Grower. Mutual YES[?] NO[ ] A bond or certificate of deposit posted with the Florida Department of Agriculture and Consumer Services does not necessarily ensure full payment of claims for any nonperformance under this contract. . . . (emphasis added) The undisputed evidence established that Donnie Selph harvested mid-season oranges from Russ Putnal's groves and paid Russ Putnal for those mid-season oranges harvested per the terms of the written contract. According to Russ Putnal, the contract was for mid-season oranges "which are basically a pineapple variety." "Mid-season juice oranges and Valencia oranges are late--late-season oranges. The mids were all paid for--the balance is on the Valencia oranges." The undisputed evidence also established that in the contract hereinabove Donnie Selph also agreed to harvest 40,000 boxes (or production) of late-season Valencia oranges and agreed to pay $6.35 per box for the Valencia oranges harvested from Russ Putnal's groves. The undisputed evidence likewise established that Donnie Selph harvested 11,251 boxes of Valencia oranges pursuant to terms of the written contract with Russ Putnal. During the harvesting of the Valencia oranges, Donnie Selph raised no objection or complaints with Russ Putnal regarding the quality or quantity of late-season Valencia oranges that were harvested. The parties recalled discussing one load that was "light," meaning the average weight per box was less than the average weight per box of the other loads of Valencia oranges picked from the same grove. According to the evidence presented, it is not uncommon in the citrus business to have a few "light" loads when picking 11,251 boxes of fruit. Donnie Selph is obligated to pay Russ Putnal for the 11,251 boxes of Valencia oranges harvested from Russ Putnal's groves and sold for processing. The net payment due and owning Russ Putnal Groves is computed as follows: Total Purchase Price [Valencia oranges]: $71,443.85 Less Harvesting, Mutual, Taxes, etc.: $2,373.57 Less Amount Received [on September 30, 2003]: $5,000.00[2] Net Amount or Claim [Balance Due]: $64,070.28 Donnie Selph did not pay Russ Putnal for the 11,251 boxes of Valencia oranges harvested from Russ Putnal's groves. Russ Putnal made repeated demands upon Donnie Selph for the past due amount of $64,070.28, and Donnie Selph refused and failed to pay Russ Putnal the past due amount of $64,070.28. This debt of $64,070.28 was due and owing on October 1, 2003, the date Donnie Selph made his last payment of $5,000 to Russ Putnal. Regarding this contractual transaction, Russ Putnal testified: I regret that we all have to be here for this, and I've put it off as long as I could and tried every way I knew to avoid coming to this, but basically -- or in simple terms Donnie Selph, Donnie Selph Fruit Company and I had a contract, a written contract for mid-season and late-season oranges for last year (2002/2003). Basically, it hadn't been paid and it's my understanding the bond is for situations of this nature. And I realize the bond is less than half of what's owed, but I think if Donnie had the money he'd pay me. We're all in -- the citrus industry is in some serious throws so I'm just trying to get what I can to try and keep my bills paid. Donnie Selph admitted entering into a written contract with Russ Putnal. Both men acknowledged their experience in the business of selling and buying citrus fruit and doing business with each other over the years. Russ Putnal is a seasoned producer of fruit and well versed in the business of selling his fruit to citrus dealers. Donnie Selph is a seasoned purchaser and dealer of citrus fruit, having been in the business for over 20 years, and well versed in the business of buying fruit from citrus fruit producers and selling fruit to plants and other outlets. Donnie Selph set the stage of this transaction by first testifying that he is in the business of "buying and selling [fruit], by contract, to the concentration plants." Regarding the sale of Russ Putnal's Valencia oranges, he testified that "based on $1.10 a pound what I got out of [the sale of] Putnal's fruit and taking out the costs I forwarded [to Russ Putnal] what was left up to the point of where we're at now [i.e. $64,070.28]." Donnie Selph's refusal to pay Russ Putnal for the Valencia oranges, "because I received only $1.10 per pound," does not relieve him of his contractual obligations to pay $6.35 per box for the Valencia oranges harvested. At the conclusion of the hearing and in lieu of submitting a proposed recommended order, Russ Putnal elected to make the following summation of his case that has been considered: We have a simple contract and a simple problem where fruit was contracted for, harvested, marketed and not paid for by the specifics of the contract. We have a bond in place to cover these discrepancies. The bond is only $30,000; the amount owed is some $64,000 plus. The defense has pretty much put up a smokescreen off the subject of the contract. The focusing in on pound solids and there's nothing in the contract about pound solids. The contract is simply in weight boxes. Donnie Selph's first defense, to the debt claimed in the Complaint, was oral modification of the written contract. Donnie Selph's evidence to support his oral modification defense consisted solely of his recollection, "Mr. Putnal agreed with me that the contract price to be paid would be based on pound solid [unknown at the time of entering the contract]." Donnie Selph testified that he and Russ Putnal discussed, and agreed, that the encircled word "juiced" on the written contract meant that he would pay Russ Putnal at the price Donnie Selph received when he sold the Valencia oranges "as juiced." Russ Putnal emphatically denied making the alleged oral modification of the written contract of $6.35 per box for his Valencia oranges. Russ Putnal insisted that throughout this entire episode with Donnie Selph the written contract called for "weight boxes." In his post-hearing Memorandum of Law, Donnie Selph admitted entering into a written contract with Russ Putnal, but raised as a defense to payment of the debt Russ Putnal "is going against the bond of The Citrus Store." Donnie Selph argued that Russ Putnal offered no evidence of entering into a written contract with The Citrus Store or personally with Donnie Selph. Donnie Selph's argument is without a foundation in fact and law in this proceeding and is, therefore, rejected. Donnie Selph's second defense, a claim of "detrimental reliance on fraudulent statements made by Russ Putnal," is without foundation in fact. Russ Putnal adamantly denied making a verbal agreement with Donnie Selph that he would accept as payment for his Valencia oranges some amount Donnie Selph may receive when, and if, he sold the Valencia oranges to processing plants as "juiced" rather than by "pound per box." This defense to the contractual debt obligation is without foundation in fact or law in this proceeding and is likewise rejected. The documentary evidence presented by Russ Putnal in support of his demand for payment is uncontroverted. The majority of the documents submitted by Russ Putnal reflected that the fruit described therein was harvested from Russ Putnal's groves in Manatee County. Likewise, the documents from the processing plants reflected that the fruit from Russ Putnal's Manatee County groves averaged a "pound solids per box weight of 6.03676 pound[s] per box." The undisputed evidence established that Donnie Selph picked 11,251 boxes of Valencia oranges from Russ Putnal's grove. The agreed contract price for each box of Valencia oranges picked was $6.35 per box. Likewise, the undisputed evidence established Donnie Selph entered into a written contract with Russ Putnal to purchase a specific citrus fruit (Valencia oranges) at a specific price ($6.35) per box. The evidence established that Donnie Selph picked Russ Putnal's Valencia oranges, sold those Valencia oranges, and failed and refused to pay Russ Putnal the agreed contracted price of $6.35 per box for his Valencia oranges. The evidence of record demonstrated clearly that Donnie Selph is indebted to Russ Putnal for the net sum of $64,070.28 due and owing as of October 1, 2003. This outstanding debt is computed from the gross sum of $71,443.85, less: harvesting, mutual, and taxes for a subtotal of $2,373.57, and less $5,000.00 money paid and received from Donnie Selph. The uncontroverted evidence establishes that Donnie Selph was, at the times material to this proceeding, a Florida- licensed and bonded citrus fruit dealer and that, as of October 1, 2003, Donnie Selph harvested 11,521 boxes of Valencia oranges from Putnal Groves. Russ Putnal timely filed a complaint alleging that Donnie Selph failed to promptly pay its indebtedness to Russ Putnal for the Valencia oranges harvested pursuant the contract. Russ Putnal is, therefore, entitled to payment of the principal amount of $64,070.28 plus pre-judgment interest. Based on the date of the last payment made by Donnie Selph to Russ Putnal, pre-hearing interest would run from October 1, 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Respondent, Donnie Selph, d/b/a The Citrus Store and d/b/a D & D Citrus, to pay to Petitioner, Russ Putnal, d/b/a Putnal Groves, the sum of $64,070.28, together with pre-judgment interest calculated by the Department pursuant to Section 55.03, Florida Statutes, from October 1, 2003, until paid. DONE AND ENTERED this 3rd day of June, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2004.
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 issues in this case are whether Respondent committed the acts alleged and violations charged in the Administrative Complaints, as amended1; and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, is the state agency charged with regulating the practice of community association management pursuant to chapters 455 and 468, Florida Statutes. Respondent, Sherry Maycumber Raposo, is licensed in Florida as a community association manager (CAM), having been issued license number CAM 39662. At all times material to this proceeding, Respondent was the CAM for Turnberry Reserve Homeowner’s Association, Inc. (Turnberry Reserve). Respondent provided CAM services to Turnberry Reserve through Management 35 Firm, Inc., a company she owned. Records Requests Petitioner charges Respondent with the failure to provide certain association records requested by Turnberry members Luz Franco, Maria Napolitano, and Oshmy Barbosa. Ms. Franco and Ms. Napolitano submitted records requests to Respondent on identical forms requesting the following records: Financial Reports, reviews and audits for the past three (3) years. Itemized and detailed records of all receipts and expenditures. 2018 & 2019 minutes of all meetings of the board of directors & members. Bids obtained over the past 12 months for any work to be performed. Management 35 association management agreement. Security service contract. Current copy of all contracts to which the association is a party to. Ms. Franco’s records request is dated May 10, 2019, and Ms. Napolitano’s records request is dated May 24, 2019. Respondent testified, credibly, that all of the records requested were available for inspection on the Turnberry Reserve website, and that individuals were directed to the website to obtain these documents when any such request was received. Respondent’s testimony was corroborated by Sandra Diaz and Cliffie Kennedy, former board members of Turnberry Reserve. Ms. Diaz was a Turnberry Reserve board member from 2016 through 2018, and Mr. Kennedy was a Turnberry Reserve board member from 2019 through 2020. Ms. Diaz and Mr. Kennedy testified that the official records of Turnberry Reserve, including the latest financial reports and a copy of the contract with Management 35 Firm, Inc., were maintained on the Turnberry Reserve website as a matter of course, and were available for member inspection through the website. Ms. Franco and Ms. Napolitano testified that their access to the Turnberry Reserve website was suspended for non-payment of fines levied against them by the Turnberry Reserve board, leaving them unable to access the records they requested. Respondent testified that the Turnberry Reserve board suspended member access to their individual financial ledgers when fines were delinquent, but did not suspend access to official association documents maintained on the website. Respondent’s testimony was corroborated by Ms. Diaz and Mr. Kennedy, and is accepted where it conflicts with the testimony of Ms. Franco and Ms. Napolitano. The records requested by Ms. Franco, Ms. Napolitano, and Mr. Barbosa were available to them on the Turnberry website. As such, Respondent did not delay or deny access to association records. Attempt to Videotape a CEC Meeting Ms. Napolitano requested a meeting before the Turnberry Reserve Covenant Enforcement Committee (CEC) to appeal a fine that had been levied by the Turnberry Reserve board. Ms. Napolitano’s meeting before the CEC was held on August 31, 2019. The participants at the meeting were the three Turnberry Reserve homeowners who were appointed to serve on the CEC, Respondent, and Ms. Napolitano. No other Turnberry Reserve members were allowed to attend. The CEC members did not serve on the Turnberry Reserve board, no Turnberry Reserve board members attended the CEC meeting. Ms. Napolitano attempted to videotape the CEC meeting on her cell phone and was told by Respondent that she was not allowed to do so. Ahmed Elwan, a member of the CEC, testified that the CEC asked that the meeting not be videotaped because the appeals by individual members who had been fined were private meetings and the CEC did not want the meetings posted on social media. Mr. Elwan testified that the CEC voted to reschedule the meeting because Ms. Napolitano became irate and started yelling when she was told she could not videotape the meeting. Mr. Elwan’s testimony was credible and is accepted. Article III, section 9 of the Turnberry Reserve bylaws states, in pertinent part, that “[a]ny Lot Owner may tape record or videotape meetings of the Board of Directors and meetings of the Members.” Petitioner contends that Ms. Napolitano had a right to videotape her meeting before the CEC because it was a special meeting of the association members and therefore constitutes a meeting of the members. The Turnberry Reserve bylaws authorize the board to appoint a committee, like the CEC, to carry out association business. The CEC meeting was not a meeting open to all members; it was a private meeting between Ms. Napolitano and the three unit owners appointed by the board to serve on the CEC. The CEC meeting was not a meeting of the Turnberry Reserve board, because none of the CEC members served on the board. Thus, the CEC meeting was not a meeting of the board or a meeting of the members, and Ms. Napolitano had no right to videotape the CEC meeting under the Turnberry Reserve bylaws. Petitioner also charges Respondent with making a “deceptive, untrue, or fraudulent representation” because she told Ms. Napolitano that she could not videotape the CEC meeting. As found above, the Turnberry Reserve bylaws did not confer any right to videotape a CEC meeting, and this charge was therefore unproven for this reason alone. Candidate Forms for 2018 Annual Meeting Petitioner contends that Respondent failed to send out candidate forms soliciting candidates for the 2019 Turnberry Reserve board, resulting in the cancellation of the 2018 annual meeting which was to be held to elect the 2019 Turnberry Reserve board. Petitioner alleges this failure constitutes the failure to serve as a liaison between the Turnberry Reserve board and unit owners and tampering with the Turnberry Reserve 2018 annual election. Respondent testified that candidate forms soliciting candidates for the 2019 board were mailed to all 373 Turnberry Reserve unit owners in advance of the 2018 annual meeting. Ms. Diaz, Mr. Elwan, and Mr. Kennedy corroborated Respondent’s testimony, stating that they all received candidate forms in advance of the 2018 annual meeting. There was no evidence to the contrary. Ms. Napolitano testified that she does not know whether anyone returned candidate forms to Respondent in advance of the 2018 annual election. Ms. Franco testified that she had received candidate forms in years past, but could not recall whether she received a candidate form in advance of the 2018 annual election. Mr. Barbosa was not asked about the candidate form. The testimony of Respondent, Ms. Diaz, Mr. Elwan, and Mr. Kennedy was credible and is accepted. Respondent mailed candidate forms to the Turnberry Reserve unit owners in advance of the 2018 annual election. Respondent did not fail to serve as a liaison between the Turnberry Reserve board and unit owners and did not tamper with the 2018 annual election.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaints at issue in this consolidated proceeding. DONE AND ENTERED this 13th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Sherry Maycumber Raposo 4067 Longworth Loop Kissimmee, Florida 34744 James C. Richardson, Esquire Department Business and Professional Regulation 2601 Blairstone Road Tallahassee, Florida 32399-6563 David Axelman, General Counsel Office of the General Counsel Department Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 S BRIAN A. NEWMAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2021. Eddy Laguerre, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Krista Woodard, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 Julie I. Brown, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202
The Issue The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the second amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Gary Lenczyk, held teaching certificate number 414678 issued by the Department of Education. The certificate covered the areas of mathematics, chemistry, physics and substitute teaching and was valid through June 30, 1994. When the events herein occurred, respondent was employed as a science teacher at Bronson High School (BHS) in Bronson, Florida. The school is a part of the Levy County School District. In this case, petitioner, Doug Jamerson, as Commissioner of Education, seeks to discipline respondent's teaching certificate for numerous alleged violations of the law. There is no evidence that respondent has been disciplined by petitioner on any prior occasion. Three days before the beginning of school year 1992-93, respondent was hired to teach at BHS. Among other things, he taught algebra II, earth science, physics and physical science. Based partly on conduct which forms the basis for the second amended complaint, respondent was suspended by the local school board from his teaching position on December 8, 1992. He later resigned from his position on April 26, 1993. Except for one charge, the second amended complaint stems from events which allegedly occurred during the first part of school year 1992-93. The complaint includes allegations, some duplicative in nature, that (a) respondent called eleven students such names as "liars," "dumb," and "punk," he characterized their questions as "stupid," and he told them to "shut up," (b) he "violently" yelled at eleven students and at least four staff members, (c) he called ten students names and belittled and disparaged them to other students and parents in their absence, (d) he called other teachers and staff "bitch," as well as other disparaging names, (e) he told at least ten students that he was "prejudiced," (f) he made "inappropriate sexual comments" to at least ten students, (g) he asked at least ten students to lie if they were asked about the foregoing comments, (h) he engaged in "violent arguments and screaming at his peer teachers and fellow teachers," and (i) he refused to answer questions from at least ten students and ignored their requests for help. The complaint further alleges that by virtue of the foregoing conduct, respondent's effectiveness as a teacher was seriously impaired. Finally, the complaint alleges that on August 23, 1990, respondent was arrested in Gainesville, Florida, for trespass after warning, disorderly conduct and resisting an officer without violence in conjunction with his refusal to be searched before entering the Alachua County Courthouse. The complaint goes on to allege that he later entered into a deferred prosecution agreement and the charges were dismissed. The issuance of the complaint prompted respondent to request a hearing. The Courthouse Incident On the morning of August 23, 1990, respondent entered the county courthouse in Gainesville, Florida. Pursuant to a county ordinance, all persons entering the courthouse were required to pass through a metal detector and submit to a search. Sgt. Yates, an Alachua County deputy sheriff who supervises courthouse security, heard a "heated" discussion near the metal detector and observed respondent in a conversation with two other deputies demanding to know their authority for conducting a search. Respondent told them that his father was a judge, and he did not have to be searched before entering the courthouse. When told by Sgt. Yates that he would have to be searched or leave the courthouse, respondent refused to do either. He was then arrested and charged with trespass after warning. When the deputies were forced to physically restrain him, respondent was also charged with disorderly conduct and resisting an officer without violence. All charges were misdemeanors. On November 7, 1990, respondent entered into a deferred prosecution agreement in which the prosecution of the charges was deferred for six months conditioned on respondent fulfilling the terms of the agreement. When the terms were satisfied by respondent, all charges were dismissed. Respondent acknowledged that he was arrested, but says he did not contest the charges because it was his word against that of three deputies. Even so, the factual allegations in paragraphs 3 and 4 of the amended complaint have been established. School Year 1992-93 Calling students names Until his suspension from BHS in December 1992, respondent taught earth science, physics, algebra II and physical science during the first part of school year 1992-93. Paragraph 5.a. of the complaint alleges that respondent called at least eleven students such names as "liars," "stupid," "dumb," "ignorant," "bitch," and "punk," called their questions "stupid," and told them to "shut up." Paragraph 5.c. further alleges that respondent called at least ten students "names" and belittled and disparaged students "to other students and parents in their presence." To support these allegations, petitioner presented the testimony of three former students, T. C., R. W. and Jason Ruppert. One student in his algebra II class was T. C., then a sophomore. According to T. C., respondent called her a "spoiled brat" after class one day when she refused to erase the blackboard. She had declined to do so for fear of being late to the next class. T. C. contended that a "couple of students" in her next period class, only one of whom was identified but did not testify, had heard the remark, and that it was "embarrassing" to her. The testimony as to this incident is accepted as being credible. On another occasion, T. C. says respondent called K. T., a male student in the same class, "stupid" or "dumb," and he would call other unidentified students "stupid" and then laugh about it afterwards in front of the entire class. However, another student in the same class, B. G., never heard any of these comments, and he specifically denied hearing K. T. being called a name. Respondent also denied that he made the remarks. The testimony of B. G. is accepted as being more credible on this issue. R. W. was a seventh grade student in respondent's earth science class during the first semester of school year 1992-93. In assessing the credibility of the student's testimony, it is noted that R. W. conceded she disliked respondent from the first day of class. She claims that on one occasion during class respondent called her a "liar," and on another occasion he called her "stupid" and "ignorant." However, she could not recall the circumstances surrounding the latter incident. Another student in the same class, B. B., denied that any of these events occurred, and given R. W.'s admitted bias towards respondent, her testimony is not accepted as being credible. A third student, Jason Ruppert, now graduated, was in respondent's physics class during school year 1992-93. The class had only eight students. Jason claimed that respondent sometimes called students a "liar" when they gave excuses for not having done their homework, and he corroborated T. C.'s contention that respondent called K. T. "stupid" in front of the class. However, T. was not a student in the physics class, and thus Jason could not have personal knowledge as to this latter issue. Another student in the same physics class, J. H., denied hearing respondent call anyone a name. He did agree that respondent sometimes told the class to "shut up" when it became loud or unruly but he did so in the same manner as did other BHS teachers. Finally, a data entry operator in the BHS guidance office stated that on one occasion, she observed respondent acting "inappropriately" with a student in a classroom when she was delivering a message. She could not recall the date, the class, or the particular student. Accordingly, her testimony has been discounted. In summary, the only proven allegation in paragraphs 5.a. and c. is that respondent told a student in the presence of one other student (her best friend) that she was a "spoiled brat." All other allegations should be dismissed. Violently yelling at students and staff Paragraph 5.b. of the complaint alleged that respondent engaged in "violently yelling" at eleven students and four staff members, and he was guilty of "intimidating, harrassing, embarrassing and threatening both, and using profanity in front of these students and staff." Paragraph 5.h. goes on to allege that respondent engaged "in violent arguments and screaming at his peer teachers and fellow teachers." To support these allegations, petitioner presented evidence concerning three incidents, two involving respondent's peer teacher in October 1992, and the third occurring at a faculty staff meeting in August 1992. The first incident occurred during the week of October 19, 1992, and involved Marilyn Pelletti, the former chairperson of the BHS science department and respondent's peer teacher during school year 1992-93. Ms. Pelletti was dissatisfied with respondent's performance, particularly since respondent had made insufficient progress in his science class by mid-October and was late in getting grades to the office for some or all of his classes. On Wednesday, October 21, 1992, she went to respondent's classroom during lunch hour when it was empty and presented respondent with a professional orientation program establishing certain goals. Respondent complained that the goals were too lofty and that the faculty was out to get him. Although Ms. Pelletti acknowledged that this was purely an academic argument, she says respondent began raising his voice until he was yelling, and his eyes enlarged in a threatening manner. She says she feared for her safety and backed out of the room and left when the bell rang. Ms. Pelletti immediately returned to her classroom in a "shaken" state and told an inquiring aide that she was all right. The next morning, respondent came to Ms. Pelletti's classroom around 7:35 a.m. and "started the same argument over again." This time, it lasted about fifteen or twenty minutes, and respondent engaged in "yelling and screaming" until Ms. Pelletti finally got him out of the classroom. She concedes that respondent never made any threatening remarks, and the entire confrontation was "argumentative" in nature. No profanity was used by respondent during either confrontation. Although the two arrived in the school parking lot the following morning at the same time, and respondent attempted to again broach the subject, no continuing argument occurred. The incident on October 21, 1992, was corroborated by a school data entry operator who heard loud voices and observed respondent approaching Ms. Pelletti in an "aggressive" manner, shaking his finger in her face and "yelling" in an unprofessional manner. Jason Ruppert, a student passing in the hallway at the same time, also described respondent as having a "raised voice" during the argument. In addition to the above incidents, a witness described respondent as being "argumentative" and "aggressive" when she explained grade book and absentee record policies to all teachers at a staff meeting at the beginning of the school year. There is no evidence, however, that he "violently" yelled or screamed at her, or that he otherwise used inappropriate language. There is less than clear and convincing evidence that respondent engaged in violent arguments with students, or that he was guilty of intimidating, harrassing, embarrassing, or threatening them, or that he used profanity in their presence. Calling other teachers and staff a "bitch" An allegation is next made in paragraph 5.d. of the complaint that respondent called at least four "other teachers and staff 'bitch' and other names belittling them and disparaging them to students and parents in their absence." The only testimony on this subject came from T. C., a former student, who recalled that, while talking with respondent at his desk one day, he called another teacher, Ms. Whitmore, a "puta," a Spanish word. When T. C. asked respondent if he really knew what that word meant, respondent replied "she's a real bitch." Although no other students heard these remarks, the testimony is deemed to be credible. Statements that respondent was prejudiced Paragraph 5.e. of the complaint alleges that respondent told at least ten students that he was "prejudiced." The only testimony concerning this allegation came from R. W., who was a seventh grader when certain alleged remarks occurred. According to R. W., respondent told his class on one occasion that he was "prejudiced." Assuming this to be true, the context in which the remark was made was not given, and thus the testimony has little, if any, probative value in resolving the issue. R. W. also suggested that respondent selected only white students to participate in classroom activities, but this testimony was adequately refuted by two former African-American students who testified that they perceived no racial bias or prejudice on respondent's part while attending his classes. Accordingly, it is found that there is a lack of evidence to support this charge. Making inappropriate sexual comments The complaint further alleges in paragraph 5.f. that respondent made "inappropriate sexual comments to (at least ten) students about his sexual past and sex in general." Two students offered testimony on this issue. According to R. W., who was a seventh grader at the time, respondent grabbed his crotch in class one day. When asked by a student what he was doing, he responded "Why don't you try it?" The context in which this incident occurred was not given. Another student in the same class denied that the incident even occurred. The allegation is accordingly not deemed to be credible. On another occasion, T. C., a former student, says she raised her hand to volunteer to answer a question and was told by respondent that "the only reason you want to go to the board is because you want the other students to look at you." Even if such a statement was made, it would not constitute an inappropriate sexual comment. Accordingly, there is less than clear and convincing evidence to sustain this charge. Asking students to lie Although paragraph 5.g. of the complaint alleges that respondent asked at least ten students to lie about his comments, if asked to testify about the same, there was no evidence to establish this misconduct. Refusal to help students or answer their questions The charge is also made in paragraph 6. that respondent "refused to help (at least ten) students and ignored students' questions." As to this charge, the only credible testimony on the issue came from J. H., a former student, who recalled that respondent would routinely defer answering a student's question until the end of the class if it did not relate to the subject matter then being taught. Respondent would, however, answer the questions at the end of the period. This was corroborated by respondent's testimony. Further testimony by a data entry operator that, while delivering messages to respondent's classroom, she observed him ignoring students' questions is deemed to be too vague and nonspecific to have probative value. Accordingly, it is found that the evidence is less than clear and convincing that respondent refused to help students or answer their questions as charged in the complaint. Loss of Effectiveness Finally, paragraph 8. of the amended complaint alleges that, by virtue of the misconduct described in the complaint, respondent has lost his effectiveness as a teacher in the school system. This allegation was supported by testimony from respondent's former principal at BHS during the fall of 1992. Based on a number of complaints received from parents, students and teachers, and after an internal investigation was performed, the principal issued a letter of reprimand to respondent on October 26, 1992. Later, a recommendation to dismiss respondent was made. Without contesting this proposed action, respondent resigned from the school effective April 26, 1993. The former BHS principal opined that, assuming "some or all" of the alleged charges were true, respondent's effectivness as a teacher at BHS had been seriously impaired. He did not testify with any specificity, however, as to whether the minor charges proven here were so serious as to impair respondent's effectiveness as a teacher. C. Miscellaneous Respondent presented the testimony of several teaching colleagues at BHS who never observed any improper conduct on respondent's part. It was also established that respondent occasionally substituted as a teacher at Newberry High School and Santa Fe Junior College (SFJC). The chairman of the SFJC math department described respondent as a good teacher, and that while he was vigorous in arguing for his beliefs, he always conformed to school policy and regulations. Similar testimony was given regarding respondent's conduct at Newberry High School. Evidence by both parties concerning respondent's teaching methods and competence as a teacher has been disregarded as being irrelevant since this subject is not raised in the amended complaint. According to petitioner's exhibit 2, respondent's teaching certificate was issued on December 17, 1992, or after the events herein occurred. Although petitioner failed to clarify under what authority respondent was teaching during the fall of 1992, respondent acknowledged during the hearing that he taught during that year and prior years under a teaching certificate of some type, and it may be fairly inferred that BHS would not have hired respondent had he not been properly licensed by the state or authorized to teach in the public schools.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order finding respondent guilty of violating Subsection 231.28(1)(h), Florida Statutes, Subsection 231.28(1)(c), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code, as more specifically explained in the conclusions of law, for which he should be barred from reapplying for certification for three months. In all other respects, the charges against respondent should be dismissed. DONE AND ENTERED this 22nd day of February, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0151 Petitioner: 1-2. Partially accepted in finding of fact 1. 3-6. Partially accepted in findings of fact 4 and 5. 7-10. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Partially accepted in finding of fact 20. Partially accepted in finding of fact 23. 14-17. Partially accepted in finding of fact 15. 18-19. Partially accepted in finding of fact 16. 20. Rejected as being unnecessary. 21-24. Partially accepted in finding of fact 18. 25. Partially accepted in finding of fact 25. 26-27. Partially accepted in finding of fact 17. 28-29. Partially accepted in finding of fact 11. Partially accepted in finding of fact 17. Partially accepted in finding of fact 11. Rejected as being hearsay. Rejected as not being credible. See number 11. Rejected as being unnecessary. 35-40. Partially accepted in finding of fact 10. Partially accepted in finding of fact 23. Partially accepted in finding of fact 21. Covered in preliminary statement. 44-48. Partially accepted in finding of fact 26. 49. Rejected as being contrary to the evidence. Respondent: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 2. 5-22. Partially accepted in findings of fact 4-6. 23-31. Covered in preliminary statement. 32-41. Partially accepted in findings of fact 7-13. 42-51. Partially accepted in findings of fact 14-19. 52-57. Partially accepted in findings of fact 7-13. 58-60. Partially accepted in finding of fact 20. 61-63. Partially accepted in finding of fact 21. 64-66. Partially accepted in findings of fact 22 and 23. 67-68. Partially accepted in finding of fact 24. 69-72. Partially accepted in findings of fact 14-19. 73-76. Partially accepted in finding of fact 24. 77-84. Partially accepted in findings of fact 26 and 27. 85-87. Rejected as being unnecessary. 88. Partially accepted in finding of fact 10. 89. Partially accepted in finding of fact 28. 90. Rejected as being irrelevant. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible and persuasive evidence, unnecessary for a resolution of the issues, a conclusion of law, cumulative, or subordinate. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killearney Way, Suite G Tallahassee, FL 32308 Mr. Gary Lenczyk 4716 S. W. 47th Way Gainesville, FL 32608-4808 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
The Issue The issue posed for decision herein is whether or not the Respondent properly denied Petitioner's refund request for that portion of his Foresters licensing fee for the period July 1, 1979, through December 31, 1981.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, the following relevant facts are found. John T. Clark, Petitioner, is a licensed Florida Forester and, as such, received during December of 1978 a notice mailed by the Board of Registration for Foresters a license fee request for the period of January 1, 1979, through December 31, 1981. Petitioner timely submitted his license fee for the registration period in question. The Forestry Practice Act expired on June 30, 1979, based upon a veto by the Governor. (Chapter 76-168 as amended by Chapter 77-457, Chapter 6, Florida Statutes, the "Sunset Act".) Petitioner, by letter dated July 2, 1979, requested a refund of the license fee paid for the eighteen-month period of July, 1979, through December, 1981. On October 22, 1979, Gerald A. Lewis, Comptroller, advised Petitioner of the Respondent's notice of intent to deny his refund. That notice alleged in pertinent part that "pursuant to an Attorney General Opinion dated January 27, 197P) (AGO No. 078-14), Section 215.26, Florida Statutes, as construed by Florida Courts, provides that refunds may only be made from the funds benefited and if such fund does not have sufficient monies. . . to make the requested refunds, then the refunds cannot be made absent a specific legislative appropriation or claims bill." Petitioner was then advised that the fund benefited by the license payment did not have sufficient monies to pay the requested refund and, therefore, the request would be denied. Florida Statutes 215.26(1)(a) provides in pertinent part that the Comptroller of the State may refund to the person who paid same . . . any monies paid to the State Treasury which constitute: An overpayment of any tax, license or account due. Petitioner introduced into evidence the financial statement for the Board of Registration for Foresters for the quarter ending October 31, 1979, which indicates that as of October 31, 1979, the Board of Foresters had total net resources available of $17,767.91. (Petitioner's Composite Exhibit 1.) At the time Petitioner remitted his payment, the amount remitted was correct under the laws and applicable rules of the Board of Registration for Foresters then in effect. Rule 211-2.06, Rules of the Board of Registration for Foresters, Florida Administrative Code. However, the parties also further agree that the payment tendered was a regulatory fee (as contrasted to a tax) and was used to defray the cost of regulation, and not as a general revenue producing measure. As such, the monies were deposited in a regulatory trust fund which of course reflects the fact that monies are available in said fund and which, in this instance, can be used as a refund for any overpayments. It is further undisputed that the period of regulation was for a two-year period while the regulation only lasted six months. In view of these factors, Section 215.26(1))a), Florida Statutes, authorizes a refund of an overpayment such as was paid by the Petitioner in this case. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's refund request of July 2, 1979, be GRANTED. RECOMMENDED this 3rd day of March, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue to be determined in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017- 108, entitled “SAIL Financing of Affordable Multifamily Housing Developments To Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits” was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. To promote affordable housing in Florida, Florida Housing offers a variety of programs to distribute housing credits. (Housing credits, also known as tax credits, are a dollar-for-dollar offset of federal income tax liability.) One of these programs is the State Apartment Incentive Loan program (“SAIL”), which provides low-interest loans on a competitive basis to affordable housing developers. SAIL funds are available each year to support the construction or substantial rehabilitation of multifamily units affordable to very low- income individuals and families. See § 420.5087, Fla. Stat. Additional sources of financial assistance include the Multifamily Mortgage Revenue Bond program (“MMRB”) and non- competitive housing credits. Florida Housing administers the competitive solicitation process to award low-income housing tax credits, SAIL funds, nontaxable revenue bonds, and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive application process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The Request for Application at issue in this matter is RFA 2017-108, entitled “SAIL Financing of Affordable Multifamily Housing Developments to Be Used in Conjunction with Tax-Exempt Bond Financing and Non-Competitive Housing Credits.” Florida Housing issued RFA 2017-108 on August 31, 2017. Applications were due by October 12, 2017.6/ The purpose of RFA 2017-108 is to distribute funding to create affordable housing in the State of Florida. Through RFA 2017-108, Florida Housing intends to award approximately $87,000,000 for proposed developments serving elderly and family demographic groups in small, medium, and large counties. RFA 2017-108 allocates $46,279,600 to large counties, $32,308,400 to medium counties, and $8,732,000 to small counties. RFA 2017-108 established goals to fund: Two Elderly, new construction Applications located in Large Counties; Three Family, new construction Applications located in Large Counties; One Elderly, new construction Application located in a Medium County; and Two Family, new construction Applications located in Medium Counties. Thirty-eight developers submitted applications in response to RFA 2017-108. Of these applicants, Florida Housing found 28 eligible for funding, including all Petitioners and Intervenors in this matter. Florida Housing received, processed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2017-108, Florida Administrative Code Chapters 67- 48 and 67-60, and applicable federal regulations. RFA 2017-108 provided that applicants were scored based on certain demographic and geographic funding tests. Florida Housing sorted applications from the highest scoring to the lowest. Only applications that met all the eligibility requirements were eligible for funding and considered for selection. Florida Housing created a Review Committee from amongst its staff to review and score each application. On November 15, 2017, the Review Committee announced its scores at a public meeting and recommended which projects should be awarded funding. On December 8, 2017, the Review Committee presented its recommendations to Florida Housing’s Board of Directors for final agency action. The Board of Directors subsequently approved the Review Committee’s recommendations and announced its intention to award funding to 16 applicants. As a preliminary matter, prior to the final hearing, Florida Housing agreed to the following reassessments in the scoring and selection of the applications for funding under RFA 2017-108: SP Lake and Osprey Pointe: In the selection process, Florida Housing erroneously determined that SP Lake was eligible to meet the funding goal for the “Family” demographic for the Family, Medium County, New Construction Goal. (SP Lake specifically applied for funding for the “Elderly” demographic.) Consequently, Florida Housing should have selected Osprey Pointe to meet the Family, Medium County, New Construction Goal. Osprey Pointe proposed to construct affordable housing in Pasco County, Florida. Florida Housing represents that Osprey Pointe is fully eligible for funding under RFA 2017-108. (While Osprey Pointe replaces SP Lake in the funding selection for the “Family” demographic, SP Lake remains eligible for funding for the “Elderly” demographic.) Sierra Bay and Northside II: In the scoring process, Florida Housing erroneously awarded Sierra Bay proximity points for Transit Services. Upon further review, Sierra Bay should have received zero proximity points. Consequently, Sierra Bay’s application is ineligible for funding under RFA 2017-108. By operation of the provisions of RFA 2017-108, Florida Housing should have selected Northside II (the next highest ranked, eligible applicant) for funding to meet the Elderly, Large County, New Construction Goal. Florida Housing represents that Northside II is fully eligible for funding under RFA 2017-108. Harbour Springs: Florida Housing initially deemed Harbour Springs eligible for funding under RFA 2017-108 and selected it to meet the Family, Large County, New Construction Goal. However, because Harbour Springs and Woodland Grove are owned by the same entity and applied using the same development site, under rule 67-48.004(1), Harbour Springs is ineligible for funding. (Florida Housing’s selection of Woodland Grove for funding for the Family, Large County, New Construction Goal, is not affected by this determination.) The sole disputed issue of material fact concerns Liberty Square’s challenge to Florida Housing’s selection of Woodland Grove to meet the Family, Large County Goal. Liberty Square and Woodland Grove applied to serve the same demographic population under RFA 2017-108. If Liberty Square successfully challenges Woodland Grove’s application, Liberty Square, as the next eligible applicant, will be selected for funding to meet the Family, Large County Goal instead of Woodland Grove. (At the hearing on December 8, 2017, Florida Housing’s Board of Directors awarded Woodland Grove $7,600,000 in funding.) The focus of Liberty Square’s challenge is the information Woodland Grove provided in response to RFA 2017-108, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” Liberty Square argues that Woodland Grove’s application is ineligible because its Development Location Point, as well as the locations of its Community Services and Transit Services, are inaccurate. Therefore, Woodland Grove should have received zero “Proximity” points which would have disqualified its application for funding. RFA 2017-108, Section Four, A.5.d(1), states, in pertinent part: All Applicants must provide a Development Location Point stated in decimal degrees, rounded to at least the sixth decimal place. RFA 2017-108 set forth scoring considerations based on latitude/longitude coordinates in Section Four, A.5.e, entitled “Proximity.” Section Four, A.5.e, states, in pertinent part: The Application may earn proximity points based on the distance between the Development Location Point and the Bus or Rail Transit Service . . . and the Community Services stated in Exhibit A. Proximity points will not be applied to the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference ” In other words, the Development Location Point identified the specific location of an applicant’s proposed housing site.7/ Applicants earned “proximity points” based on the distance between its Development Location Point and selected Transit and Community Services. Florida Housing also used the Development Location Point to determine whether an application satisfied the Mandatory Distance Requirement under RFA 2017-108, Section Four A.5.f. To be eligible for funding, all applications had to qualify for the Mandatory Distance Requirement. The response section to Section Four, A.5.d., is found in Exhibit A, section 5, which required each applicant to submit information regarding the “Location of proposed Development.” Section 5 specifically requested: County; Address of Development Site; Does the proposed Development consist of Scattered Sites?; Latitude and Longitude Coordinate; Proximity; Mandatory Distance Requirement; and Limited Development Area. Section 5.d. (Latitude and Longitude Coordinates) was subdivided into: (1) Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place Longitude in decimal degrees, rounded to at least the sixth decimal place In its application, Woodland Grove responded in section 5.a-d as follows: County: Miami-Dade Address of Development Site: NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032. Does the proposed Development consist of Scattered Sites? No. Latitude and Longitude Coordinate; Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place: 25.518647 Longitude in decimal degrees, rounded to at least the sixth decimal place: 80.418583 In plotting geographic coordinates, a “-” (negative) sign in front of the longitude indicates a location in the western hemisphere (i.e., west of the Prime Meridian, which is aligned with the Royal Observatory, Greenwich, England). A longitude without a “-” sign places the coordinate in the eastern hemisphere. (Similarly, a latitude with a negative value is south of the equator. A latitude without a “-” sign refers to a coordinate in the northern hemisphere.) As shown above, the longitude coordinate Woodland Grove listed in section 5.d(1) did not include a “-” sign. Consequently, instead of providing a coordinate for a site in Miami-Dade County, Florida, Woodland Grove entered a Development Location Point located on the direct opposite side of the planet (apparently, in India). At the final hearing, Florida Housing (and Woodland Grove) explained that, except for the lack of the “-” sign, the longitude Woodland Grove recorded would have fallen directly on the address it listed as its development site in section 5.b., i.e., the “NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032.” In addition to the longitude in section 5.d., Woodland Grove did not include a “-” sign before the longitude coordinates for its Transit Services in section 5.e(2)(b) or for any of the three Community Services provided in section 5.e(3). Again, without a “-” sign, the longitude for each of these services placed them in the eastern hemisphere (India) instead of the western hemisphere (Miami-Dade County). In its protest, Liberty Square contends that, because Woodland Grove’s application listed a Development Location Point in India, Florida Housing should have awarded Woodland Grove zero proximity points under Section Four, A.5.e. Consequently, Woodland Grove’s application failed to meet minimum proximity eligibility requirements and is ineligible for funding. Therefore, Liberty Square, as the next eligible applicant, should be awarded funding for the Family, Large County Goal, under RFA 2017-108.8/ Liberty Square asserts that a correct Development Location Point is critical because it serves as the beginning point for assigning proximity scores. Waiving an errant Development Location Point makes the proximity scoring meaningless. Consequently, any such waiver by Florida Housing is arbitrary, capricious, and contrary to competition. At the final hearing, Woodland Grove claimed that it inadvertently failed to include the “-” sign before the longitude points. To support its position, Woodland Grove expressed that, on the face of its application, it was obviously applying for funding for a project located in Miami-Dade County, Florida, not India. In at least five places in its application, Woodland Grove specified that its proposed development would be located in Miami-Dade County. Moreover, several attachments to Woodland Grove’s application specifically reference a development site in Florida. Woodland Grove attached a purchase agreement for property located in Miami-Dade County (Attachment 8). To satisfy the Ability to Proceed requirements in RFA 2017-108, Woodland Grove included several attachments which all list a Miami-Dade address (Attachments 9-14). Further, Woodland Grove submitted a Local Government Verification of Contribution – Loan Form executed on behalf of the Mayor of Miami-Dade County, which committed Miami-Dade County to contribute $1,000,000.00 to Woodland Grove’s proposed Development (Attachment 15). Finally, to qualify for a basis boost under RFA 2017-108, Woodland Grove presented a letter from Miami-Dade County’s Department of Regulatory and Economic Resources, which also referenced the address of the proposed development in Miami-Dade County (Attachment 16). In light of this information, Woodland Grove argues that its application, taken as a whole, clearly communicated that Woodland Grove intended to build affordable housing in Miami-Dade County. Nowhere in its application, did Woodland Grove reference a project in India other than the longitude coordinates which failed to include “-” signs. Accordingly, Florida Housing was legally authorized to waive Woodland Grove’s mistake as a “harmless error.” Thus, Florida Housing properly selected the Woodland Grove’s development for funding to meet the Family, Large County Goal. Florida Housing advocates for Woodland Grove’s selection to meet the Family, Large County Goal, under RFA 2017- 108. Florida Housing considers the omission of the “-” signs before the longitude coordinates a “Minor Irregularity” under rule 67-60.002(6). Therefore, Florida Housing properly acted within its legal authority to waive, and then correct, Woodland Grove’s faulty longitude coordinates when scoring its application. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s current Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process; although, she did not personally participate in the review, scoring, or selection decisions for RFA 2017-108. Ms. Button initially explained the process by which Florida Housing selected the 16 developments for funding under RFA 2017-108. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. The Review Committee members independently evaluated and scored their assigned portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. Ms. Button further explained that applicants occasionally make errors in their applications. However, not all errors render an application ineligible. Florida Housing is authorized to waive “Minor Irregularities.” As delineated in RFA 2017-108, Section Three, A.2.C., Florida Housing may waive “Minor Irregularities” when the errors do not provide a competitive advantage or adversely impact the interests of Florida Housing or the public. See Fla. Admin. Code R. 67- 60.002(6) and 67-60.008. Such was the case regarding Woodland Grove’s application. Heather Green, the Florida Housing staff member who scored the “Proximity” portion of RFA 2017-108, waived the inaccurate longitude coordinates as “Minor Irregularities.” Ms. Green then reviewed Woodland Grove’s application as if the proposed development was located in Miami-Dade County, Florida. Florida Housing assigned Ms. Green, a Multifamily Loans Manager, as the lead scorer for the “Proximity” portion of RFA 2017-108, which included the Development Location Point listed in Exhibit A, section 5.d. Ms. Green has worked for Florida Housing since 2003 and has scored proximity points for Request for Applications for over ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Green. In her deposition, Ms. Green testified that she is fully aware that, to be located in the western hemisphere (i.e., Miami-Dade County), a longitude coordinate should be marked with a negative sign or a “W.” Despite this, Ms. Green felt that the longitude coordinates Woodland Grove used without negative signs, particularly its Development Location Point, were clearly typos or unintentional mistakes. Therefore, Ms. Green waived the lack of a negative sign in front of the longitude coordinates in section 5.d. and section 5.e. as “Minor Irregularities.” Ms. Green understood that she was authorized to waive “Minor Irregularities” by rule under the Florida Administrative Code. Ms. Green felt comfortable waiving the inaccurate longitude coordinates because everywhere else in Woodland Grove’s application specifically showed that its proposed housing development was located in Miami-Dade County, not India. Accordingly, when scoring Woodland Grove’s application, Ms. Green corrected the longitude entries by including a negative sign when she plotted the coordinates with her mapping software. Ms. Green then determined that, when a “-” was inserted before the longitude, the coordinate lined up with the address Woodland Grove listed for the Development Location Point. Therefore, Woodland Grove received proximity points and was eligible for funding under RFA 2017-108. (See RFA 2017-108, Section Five.A.1.) However, Ms. Green acknowledged that if she had scored the application just as it was presented, Woodland Grove would not have met the required qualifications for eligibility. Ms. Button relayed that Florida Housing fully accepted Ms. Green’s decision to waive the missing negative signs in Woodland Grove’s response to section 5.d. and 5.e. as “Minor Irregularities.” Ms. Button opined that Woodland Grove’s failure to place a “-” mark before the longitude was clearly an unintentional mistake. Ms. Button further commented that Florida Housing did not believe that scoring Woodland Grove’s development as if located in the western hemisphere (instead of India), provided Woodland Grove a competitive advantage. Because it was evident on the face of the application that Woodland Grove desired to develop a housing site in Miami-Dade County, Ms. Green’s decision to overlook the missing “-” sign did not award Woodland Grove additional points or grant Woodland Grove an advantage over other applicants. Neither did it adversely impact the interests of Florida Housing or the public. However, Ms. Button also conceded that if Ms. Green had scored the application without adding the “-” sign, Woodland Grove would have received zero proximity points. This result would have rendered Woodland Grove’s application ineligible for funding. Ms. Button also pointed out that Ms. Green waived the omission of “-” signs in two other applications as “Minor Irregularities.” Both Springhill Apartments, LLC, and Harbour Springs failed to include negative signs in front of their longitude coordinates. As with Woodland Grove, Ms. Green considered the development sites in those applications as if they were located in Miami-Dade County (i.e., in the western hemisphere). Ms. Green also waived a mistake in the Avery Commons application as a “Minor Irregularity.” The longitude coordinate for the Avery Commons Development Location Point (section 5.d(1)) was blank. However, Ms. Green determined that Avery Commons had placed the longitude in the blank reserved for Scattered Sites coordinates (section 5.d(2)). When scoring Avery Commons’ application, Ms. Green considered the coordinate in the appropriate section. According to Ms. Button, Florida Housing felt that this variation did not provide Avery Commons a competitive advantage. Nor did it adversely impact the interests of Florida Housing or the public. Finally, Ms. Button explained that the application Florida Housing used for RFA 2017-108 was a relatively new format. In previous Request For Applications, Florida Housing required applicants to submit a Surveyor Certification Form. On the (now obsolete) Surveyor Certification Form, Florida Housing prefilled in an “N” in front of all the latitude coordinates and a “W” in front of all the longitude coordinates. However, the application used in RFA 2017-108 did not place an “N” or “W” before the Development Location Point coordinates. Based on the evidence presented at the final hearing, Liberty Square did not establish, by a preponderance of the evidence, that Florida Housing’s decision to award funding to Woodland Grove for the Family, Large County Goal, under RFA 2017-108 was clearly erroneous, contrary to competition, arbitrary, or capricious. Florida Housing was within its legal authority to waive, then correct, the missing “-” sign in Woodland Grove’s application as “Minor Irregularity.” Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to select Woodland Grove for funding was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-108.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by Liberty Square. It is further recommended that Florida Housing Finance Corporation rescind the intended awards to Sierra Bay, SP Lake, and Harbour Springs, and instead designate Northside II, Osprey Pointe, and Pembroke Tower Apartments as the recipients of funding under RFA 2017-108.10/ DONE AND ENTERED this 19th day of April, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2018.
The Issue The issues presented are whether Respondent, George Mason Citrus, Inc. (Mason), owes Petitioner $10,000 for citrus fruit that Mason purchased from Petitioner and, if so, whether the surety is liable for any deficiency in payment from Mason.
Findings Of Fact Petitioner is a Florida corporation licensed by the Department as a “citrus fruit dealer,” within the meaning of Subsection 601.03(8), Florida Statutes (2005) (dealer).1 The business address for Petitioner is 1103 Southeast Lakeview Drive, Sebring, Florida 33870. Mason is a Florida corporation licensed by the Department as a citrus fruit dealer. The business address for Mason is 140 Holmes Avenue, Lake Placid, Florida 33852. Western is the surety for Mason pursuant to bond number 42292005 issued in the amount of $100,000 (the bond). The term of the bond is August 1, 2004, through July 31, 2005. Petitioner conducts business in Highlands County, Florida, as a dealer and as a “broker” defined in Subsection 601.03(3). In relevant part, Petitioner purchases white grapefruit (grapefruit) for resale to others, including Mason. Mason conducts business in Highlands County as either an “agent,” “broker,” or “handler” defined in Subsections 601.03(2), (3), and (23). On January 31, 2003, Mason contracted with Petitioner to purchase grapefruit from Petitioner pursuant to Fruit Contract number 03-307 (the contract). Mason drafted the contract. The terms of the contract require Petitioner to sell grapefruit to Mason for the 2003, 2004, and 2005 “crop years.” The 2003 crop year began in the fall of 2002 and ended at the conclusion of the spring harvest in 2003. The 2004 and 2005 crop years began in the fall of 2003 and 2004 and ended in the spring of 2004 and 2005, respectively. Only the 2005 crop year is at issue in this proceeding. The contract required Petitioner to deliver grapefruit to a person designated by Mason. Mason designated Peace River Citrus Products, Inc. (Peace River), in Arcadia, Florida, for delivery of the grapefruit at issue. Mason was required by the terms of a Participation Agreement with Peace River to deliver 30,000 boxes of grapefruit to Peace River during the 2005 crop year. In an effort to satisfy its obligation to Peace River, Mason entered into the contract with Petitioner for an amount of grapefruit described in the contract as an “Approximate Number of Boxes” that ranged between 12,000 and 14,000. Petitioner delivered only 2,128 boxes of grapefruit to Peace River. The production of grapefruit was significantly decreased by three hurricanes that impacted the area during the 2005 crop year. The parties agree that Mason owed Petitioner $19,070.03 for the delivered boxes of grapefruit. The amount due included a portion of the rise in value over the base purchase price in the contract caused by increases due to market conditions and participation pay out after the parties executed the contract (the rise).2 On or about October 26, 2005, Mason mailed Petitioner a check for $9,070.03. The transmittal letter for the check explained the difference between the payment of $9,070.03 and the amount due of $19,070.03. Mason deducted $10,000 from the $19,070.03 due Petitioner, in part, to cover the cost of grapefruit Mason purchased from other dealers or growers to make up the deficiency in grapefruit delivered by Petitioner (cover). The $10,000 sum also includes interest Mason claims for the cost of cover and Mason's claim for lost profits. Petitioner claims that Mason is not entitled to deduct lost profits and interest from the amount due Petitioner. If Mason were entitled to deduct interest, Petitioner alleges that Mason calculated the interest incorrectly. The larger issue between the parties is whether Mason is entitled to deduct cover charges from the amount due Petitioner. If Mason were not entitled to cover the deficiency in delivered boxes of grapefruit, Mason would not be entitled to interest on the cost of cover and lost profits attributable to the deficiency. The parties agree that resolution of the issue of whether Mason is entitled to cover the deficiency in delivered boxes of grapefruit turns on a determination of whether the contract was a box contract or a production contract. A box contract generally requires a selling dealer such as Petitioner to deliver a specific number of boxes, regardless of the source of grapefruit, and industry practice permits the purchasing dealer to cover any deficiency. A production contract generally requires the selling dealer to deliver an amount of grapefruit produced by a specific source, and industry practice does not permit the purchasing dealer to cover any deficiency. The contract is an ambiguous written agreement. The contract expressly provides that it is a "Fruit Purchase Contract" and a "delivered in" contract but contains no provision that it is either a box or production contract. The contract is silent with respect to the right to cover. Relevant terms in the contract evidence both a box contract and a production contract. Like the typical box contract, the contract between Mason and Petitioner prescribes a number of boxes, specifically no less than 12,000, that are to be delivered pursuant to the contract. However, the typical box contract does not identify the number of boxes to be delivered as "Approximate No. of Boxes" that ranges between 12,000 and 14,000 boxes. Unlike a production contract, the contract does not identify a specific grove as the source of the required grapefruit. Best practice in the industry calls for a production contract to designate the grove by name as well as the number of acres and blocks. However, industry practice does not require a production contract to identify a specific grove as the source of grapefruit. In practice, Mason treated another contract that Mason drafted with a party other than Petitioner as a production contract even though the contract did not identify a specific grove as the source of grapefruit. The absence of a force majure clause in the contract may evidence either type of contract.3 A box contract typically requires the selling dealer to deliver the agreed boxes of grapefruit regardless of weather events, unless stated otherwise in the contract. However, the absence of such a clause may also be consistent with a production contract because "acts of God" are inherent in a production contract. Such acts, including hurricanes, necessarily limit grapefruit production, and a production contract obligates the selling dealer to deliver only the amount of grapefruit produced. The contract between Petitioner and Mason did not contain a penalty provision for failure to deliver the prescribed boxes of grapefruit (box penalty). The absence of a box penalty in the contract evidences a production contract. The contract identifies Petitioner as the "Grower." A grower typically enters into a production contract. A box contract does not limit the source of grapefruit to be delivered, and the selling dealer in a box contract may obtain grapefruit from anywhere in the state. The contract between Petitioner and Mason limits the source of grapefruit to grapefruit grown in Highlands County, Florida. Mason knew that Petitioner sold only grapefruit from groves in Highlands County, Florida, identified in the record as the Clagget Taylor groves. During the 2003 and 2004 crop years, Petitioner sold only grapefruit from the Clagget Taylor groves. Mason received trip tickets and other documentation related to the delivery of no less than 24,000 boxes of grapefruit, all from the Clagget Taylor groves. The boxes of grapefruit delivered during the 2005 crop year came only from the Clagget Taylor groves. Mason received documentation showing the grapefruit came from the Clagget Taylor groves. Ambiguous written agreements are required by judicial decisions discussed in the Conclusions of Law to be construed against the person who drafted the agreement. Mason drafted an ambiguous agreement with Petitioner. The agreement must be construed against Mason as a production contract. Mason owes Petitioner $10,000 for the delivered grapefruit during the 2005 crop year. The terms of the bond make Western liable for any deficiency in payment from Mason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order directing Mason to pay $10,000 to Petitioner, and, in accordance with Subsections 601.61 and 601.65, requiring Western to pay over to the Department any deficiency in payment by Mason. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2007.
