12-001837 Sun And Earth Citrus, Llc vs. Florida Department Of Citrus Status: Closed Recommended Order on Thursday, August 30, 2012.

Summary: The Department's recommendation of denial of Petitioner's application is justified.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUN AND EARTH CITRUS, LLC , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1837

)

FLORIDA DEPARTMENT OF CITRUS , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant t o notice to all parties, the final hearing was

conducted in this case on July 25, 2012, in Bartow, Florida,

before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paulino Vazquez - Plasencia

Sun and Earth Citrus, LLC

9732 Southwest 133rd Place

Miami, Florida 33186

For Respondent: Joseph P. Mawhinney, Esquire

Reed and Mawhinney, P.L.

1828 South Florida Avenue

Lakeland, Florida 33803

STATEMENT OF THE ISS UE

The issue in this case is whether the licensure application

filed by Petitioner, Sun and Earth Citrus, LLC ("Sun and

Earth") , for licensure as a citrus fruit dealer should be denied

or approved by the Florida Citrus Commission (the "Commission").

PRELIM INARY STATEMENT

Sun and Earth filed an application with Respondent, Florida

Department of Citrus (the "Department"), on March 6, 2012. The

Department reviewed the application and notified Sun and Earth

by letter dated May 3, 2012, that it would recommend denial of

the application to the Commission. Sun and Earth timely filed

an administrative challenge to the Department's decision to

recommend denial. At the final hearing held in this matter, Sun

and Earth called two witnesses: Paulino Vazquez - Plasencia

("Vazquez"), owner of Sun and Earth; and Guillermo "William"

Vazquez (referred to herein as William). Sun and Earth did not

offer any exhibits into evidence. The Department called three

witnesses: Vazquez; Kaye Parkins; and Alice Wiggins.

Respondent o ffered seven exhibits into evidence, each of which

was admitted.

The parties ordered a transcript of the final hearing;

proposed recommended orders were due ten days after filing of

the transcript at the Division of Administrative Hearings

(" DOAH ") . The transcript was filed at DOAH on August 1 , 2012 ;

Respondent submitted a proposed recommended order , and it was

duly considered in the preparation of this Recommended Order.

Sun and Earth did not submit a proposed recommended order.

FINDING S OF FACT

1. Su n and Earth is a Florida limited liability company

formed for the purpose of buying and selling citrus products.

Vazquez is the sole owner of Sun and Earth and serves as its

p resident. The company was formed in January 2012.

2. Vazquez formed the compan y partly in response to a

series of events concerning his brother, William. A discussion

of those facts is pertinent to the underlying facts in this

case: William operated businesses named Zumoval Citrus Packer

and Zumoval Trucking and Cold Storage. Wil liam obtained a

license to operate a packinghouse after seeing other dealers

acting in a way he believed to be illegal. He renewed the

license each year for two years, but when he attempted to renew

the third year, his application was denied. At the C omm ission

meeting where William's renewal application was considered,

Vazquez appeared on William's behalf because William could not

adequately articulate his position. The meeting did not go well

for William; Vazquez had to calm William down and keep him fr om

yelling at the commissioners during the meeting. The meeting

date was January 18, 2012.

3. After the meeting at which William's license renewal

was denied, Vazquez announced to Department employees that

because his brother could not be licensed, Vazqu ez would seek

his own license. Inasmuch as Vazquez had appeared on William's

behalf , and they were siblings, the Department had some concern

that Vazquez's application was a subterfuge and simply an

attempt to allow William to operate using Vazquez's lice nse.

4. On March 2, 2012, Vazquez filed an application with the

Department; it was received on March 6 , 2012 . The application ,

as filed , said the proposed business would include operation of

a packinghouse, being a fruit broker, operating a roadside

st and, and being a wholesaler. The application contained

information about Sun and Earth , as well as its owner, Vazquez.

An application fee of $25.00 and a cashier's check in the amount

of $1,000.00 for a bond were included with the application.

5. Upon i ts initial review of the application, the

Department noticed several errors and omissions. Ms. Wiggins, a

license and regulation specialist for the Department, contacted

Vazquez via telephone on March 6, 2012, to discuss her findings

concerning the applic ation content. She told Vazquez that a

substantially larger bond was required for a license that

included a packinghouse. She also noted that if the proposed

roadside stand was purchasing fruit directly from a grower, then

it must also have a bond. If t he fruit was being purchased from

a packinghouse, no bond would be required. Ms. Wiggins asked

Vazquez to identify the packinghouse(s) from whom he intended to

purchase fruit. The purpose of her request was to verify that

fruit was being purchased from a packinghouse , rather than from

a grower.

6. Vazquez sent Ms. Wiggins an email the very next day

confirming the telephone discussion. Vazquez, in response,

asked that the packinghouse designation be removed from his

application. He also stated that ac cording to everything

discussed during their telephone conversation, it was his

contention that the application was complete. He then

questioned why his brother's company -- which had recently been

denied renewal of its license -- was pertinent to his applica tion

for a citrus dealer license. Vazquez asked when his application

would be considered by the Commission.

7. Ms. Wiggins replied to the Vazquez email via an email

dated March 8, 2012. The email noted that Ms. Wiggins had

removed the packinghouse reque st from the application. It also

addressed the need for different reference letters relating to

Sun and Earth. Then the email set out five enumerated issues

that still needed to be addressed, to wit:

1) An explanation as to how he operated

Zumoval Citrus , LLC , without a wholesaler

license from 2009 to 2011.

2) How Zumoval Citrus, LLC , continued doing

business in 2011 , when it became inactive

in September 2010.

3) An explanation of his probation or parole

from New York State relating to a

conviction for st olen property.

4) A list of the packinghouses from which he

would be purchasing fruit.

5) An address for the roadside stand.

8. Ms. Wiggins also advised Vazquez in her email that the

Department could not grant a conditional approval of the

application in that there were "unusual or questionable

circumstances" surrounding the filing of the application. That

is, the relationship between Vazquez and William caused some

concern for the Department. Ms. Wiggins reminded Vazquez that

the $1,000.00 bond submitte d with the application would not be

sufficient if Sun and Earth planned to purchase fruit from

growers. She then advised Vazquez that if he would submit all

the missing information at least five days prior to the

Commission meeting scheduled for March 21, 2012, the application

would be presented for review.

9. Vazquez responded via email dated March 13, 2012. He

provided responses to the five enumerated issues set forth in

Ms. Wiggins' email as follows:

1) He explained that neither of his

companies conti nued to do business after

they were declared inactive in September

2010. He explained that he had another

business entity that was operating, but

neither of the questioned businesses was

in operation.

2) Included in above response.

3) Vazquez had presente d evidence of his

conviction in the application; he did not

believe anything further was required.

He was upset that Ms. Wiggins apparently

had information from his other prior

transgressions (more on this below) and

wanted to know what information she ha d

seen.

4) Vazquez refused to provide names of the

packinghouses with whom he planned to do

business. He stated that the inquiry was

outside of Ms. Wiggins' "scope of

duties , " and he did not have to comply

with her request.

5) He asked that the roadside s tand

designation be removed from the

application.

10. Vazquez's email then became somewhat belligerent and

argumentative. He concluded with a demand that his application

be presented to the Commission on March 21 , 2012 .

11. The reason Ms. Wiggins had ask ed Vazquez for a list of

the packinghouses he planned to do business with was two - fold:

First, Vazquez had indicated he planned to have a roadside

stand. If the stand was going to get its fruit from a grower,

then a larger bond would be required. If the fruit was to come

from packinghouses, then there would be no bond requirement.

Ms. Wiggins attempted to ascertain whether Vazquez was planning

to obtain fruit from packinghouses. Second, due to Vazquez

first indicating he would operate a packinghouse an d then

removing that designation, Ms. Wiggins wanted to make sure he

was being honest and truthful in his responses. Citrus dealers

by and large police themselves, so it is important that the

Department know they can trust entities to which they issue

lic enses. By striking the roadside stand item from his

application, Vazquez still did not alleviate the basis for

Ms. Wiggins' questions about packinghouses.

12. The Department decided that because of the

questionable and unusual circumstances surrounding V azquez's

application, it would not issue a conditional license. Rather,

it would process the application and send it on to the

Commission for review and approval or denial.

13. After further review, the Department ultimately

decided that it would recommen d denial of the Sun and Earth

application when it was forwarded to the Commission. Vazquez

was notified of the decision by way of a letter dated May 3,

2012, sent by certified mail, return receipt requested. The

letter advised Vazquez that he could chall enge the decision in

an administrative hearing. Vazquez chose to do so, thereby

staying any further action on the application until a final

order could be issued in the instant proceeding.

14. The basis of the Department's decision was that the

Sun and Ea rth application had misrepresented Vazquez's

circumstances with respect to his work history, residence , and

criminal background. Further, Vazquez had been reluctant to

respond to requests for information after reasonable inquiry by

the Department.

15. As to Vazquez's reported work history as set forth in

the application, Vazquez had initially provided a work history

summary in response to question 18. The response indicated

employment from March 2007 until January 2011 with Associated

Produce in Bronx, Ne w York. In fact, Vazquez was incarcerated

in New York for most of that time period. An amended response

to question 18 was submitted; it did not list Associated Produce

as a former employer. Vazquez explained the erroneous

information thusly: The dates of employment were taken directly

from his resume. His resume was attached to the application

only to show his employment duties, not as evidence of the dates

he actually worked. It was simply a mistake, said Vazquez, not

an attempt to mislead the Depar tment. Vazquez's testimony in

this regard was self - serving and not credible.

16. As to his history of residence in the state, the

application said Vazquez had lived at the same address in

Florida for the past five years. In truth, Vazquez was in

prison in New York and did not move to Florida until 2009.

Again, Vazquez said that was simply a mistake and was not meant

to mislead the Department. Again, the testimony provided by

Vazquez as to this issue was not credible.

17. The issues concerning Vazquez's criminal history are

more complex. Question 10 in the application asks for

information concerning investigations, charges, arrests or

convictions "in the last 10 years." Vazquez provided

information concerning an arrest in October 2010 for carrying a

co ncealed weapon. He also provided the Order acquitting him of

the charge. The arrest report references probation for a

conviction of possession of stolen property in New York. The

Department, during its background check of Vazquez, found that

he was on p arole. Vazquez was asked to clarify the probation

versus parole discrepancy. He explained that between the arrest

and acquittal, his parole officer had submitted a violation of

parole, but that was lifted after his acquittal.

18. The Department's concern about Vazquez's relationship

with his brother was founded on the fact that Vazquez

represented William before the Commission just prior to the

filing of the Sun and Earth application. That representation

preceded Vazquez's remark to a Department employee that if his

brother could not have a license, he would seek one himself.

The statement put the Department on notice that the brothers may

be trying to circumvent William's loss of his license.

19. At final hearing, it was evident the brothers had no

such intent. In fact, William was not cooperative with

Vazquez's efforts to obtain a license that would, in effect,

compete with William's business.

20. The Department also raised a concern about the letters

of reference received in support of the Sun and E arth

application. Normally, the Department would forward Letter of

Reference forms to businesses , and they would be returned

directly to the Department. In this case, Vazquez took the

letters to business owners himself. There is nothing inherently

impro per about doing this, but it caused some concern to the

Department in a case where red flags had already been raised.

21. Ms. Wiggins had never had an applicant refuse to

answer questions during the application process. When Vazquez

raised his "scope of w ork" objections, Ms. Wiggins was taken

aback. Vazquez, an admitted novice in the citrus business,

basically told the Department how to do its job.

22. Faced with this very unique situation, Ms. Wiggins

then asked her supervisor to become involved in the a pplication

review so that it would be done completely in accordance with

Department rules. After the March 13, 2012, email from Vazquez,

it was decided that the Department legal counsel should also be

involved. T he Department was justifiably concerned ab out the

propriety of the Sun and Earth application. Citrus dealers are

generally self - governing , and the Department began to have

concern s that Vazquez could not be trusted. That, in and of

itself, was sufficient basis for the recommendation of denial of

Vazquez's application.

23. Vazquez admitted to being less than forthright with

the Department on his application. He withheld information that

he believed the Department could easily obtain on its own. He

refused to answer questions that he did not beli eve were

relevant. He would not cooperate with inquiries made into

issues about his past. He disagreed that his affiliation with

his brother's company was relevant, so he stonewalled all

inquiries about that issue. All in all, Vazquez -- the applicant

for a license -- refused to provide information and assistance to

the entity which was reviewing his application. While he may

have had his personal reasons for his actions, what he did was

not conducive to obtaining approval from the Department. Thus,

his ap plication was given a recommendation for denial.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.57 and 120.569, Florida

Statutes (2012) . 1/

25. Petitioner has the burden of proof in this matter as

it is asserting the affirmative of the issue, i.e., that its

application as a citrus dealer should be approved. See Balino

v. Dep't of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977).

26. The Depart ment's review of Sun and Earth's application

was conducted in accordance with subsections 601.57(1), (4)

and (5), Fla. Stat. Those statutory provisions require the

Department to thoroughly examine the applicants, including , but

not limited to , their finan cial history, their past and current

history of industry - related activities, and their reputation in

the industry. Little was known of Vazquez prior to the filing

of his application under the name Sun and Earth. The

Department , therefore , correctly inves tigated and examined all

the information available to them concerning Vazquez.

27. Section 601.67(1) discusses the kinds of actions by a

licensee which can be used by the Department to sanction the

license of a citrus dealer. The list of prohibited or suspect

activities is also reasonably relied upon by the Department when

determining whether to issue a license to an applicant.

Included in that list is fraud, misrepresentation or concealment

of information. Vazquez's improper responses to Ms. Wiggins'

requests for information clearly involved some misrepresentation

or concealment of information.

28. The Department's recommendation of denial of the Sun

and Earth application was based on its legitimate concerns about

Vazquez and his corporate entity. S un and Earth did not meet

its burden of proving that the Department's recommendation was

improper.

29. It should be noted that Vazquez attempted at final

hearing to introduce evidence as to possible conflicts of

interest by Commission members, saying tha t the members should

not be making a decision on his application because he would be

competing with their own companies. That argument is premature;

the issue in this proceeding is simply whether the Department's

recommendation of denial to the Commission was justified. Once

the Commission takes action on the licensure application,

Vazquez's argument concerning their conflict of interest may be

ripe for consideration.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is REC OMMENDED that a final order be entered by the

Department of Citrus /Florida Citrus Commission, denying Sun and

Earth 's application.

DONE AND ENTERED this 30th day of August, 2012 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of August , 2012 .

ENDNOTE

1/ Unless specifically stated otherwise herein, all references to

Florida Statutes are to the 201 2 codification.

COPIES FURNISHED:

Douglas Ackerman, Executive Director

Department of Citr us

605 East Main Street

Post Office Box 9010

Bartow, Florida 33831 - 9010

Joseph P. Mawhinney, Esquire

Reed and Mawhinney, P.L.

1828 South Florida Avenue

Lakeland, Florida 33803

Paulino Vazquez - Plasencia

Sun and Earth Citrus, LLC

9732 Southwest 133rd Pla ce

Miami, Florida 33186

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.