STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LITTLE HAVANA ACTIVITIES CENTER, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-2135

)

DEPARTMENT OF STATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 11 December 1979 at Miami, Florida.

APPEARANCES

For Petitioner: Edward A. Carhart, Esquire

Flagler Center Building

44 West Flagler Street, Suite 2000 Miami, Florida 33130

For Respondent: William J. Gladwin, Jr., Esquire

Assistant General Counsel

Office of the Secretary of State The Capitol

Tallahassee, Florida 32301

By letter dated October 5, 1979 Little Havana Activities Center, Inc., Petitioner, by and through its attorney, requested an administrative hearing to contest its dissolution by the Secretary of State, Respondent, as a registered corporation in Florida because of failure to file annual corporate report in 1976; and for the return of its corporate name. As grounds for asking for recision of the order of dissolution Petitioner contends that proper notice was not given by Respondent. As grounds for restoration of its name it is alleged that the entity presently holding this name obtained same by fraud.

Respondent contends that the issue of fraud on the part of the new entity acquiring the corporate name of Petitioner is not an issue in these proceedings. Since this new Little Havana Activities Center, Inc. was not joined as a party, they are not subject to the jurisdiction of this tribunal and the allegations that they obtained the corporate name fraudulently cannot be considered.

At the beginning of the hearing Petitioner acknowledged that corporate annual reports for the years 1976, 1977 and 1978 were not filed; and that the corporate report for 1979 was not timely filed. Thereafter one witness was called by Petitioner, one witness was called by Respondent and five exhibits

were admitted into evidence. Proposed findings submitted by Respondent and not included herein were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Little Havana Activities Center, Inc. was incorporated in 1973 as a non-profit corporation. It has occupied its present address of 819 S. W. 12th Avenue, Miami, Florida, since 1974.

   
   

2. Annual corporate reports were filed through the year 1975 by Petitioner; however, the annual report for 1976 was not filed.

   
   

3. Petitioner's activities are predominantly the providing of meals and services to citizens over 60. They are the only Spanish language oriented such agency in Dade County and they receive most of their funds from federal and State agencies with the United Way and private charities contributing less than fifty percent of their funds. Petitioner occupies eight sites in Dade County through which it services some 1200 people per day. These services include delivery of hot meals, the providing of transportation services, recreation facilities, and job opportunities. Up to 275 people are employed by Petitioner.

   
   

4. Respondent maintains all corporate records on a computer. When the annual corporate report is received from a corporation, the new data contained thereon is inserted into the computer and can be readily retrieved.

   
   

5. On or about 1 January of each year a first notice of annual report is computer typed and mailed to all corporations. The Division of Corporations does not keep a record of this mailout. On or about 1 September a second notice is computer printed and mailed to those corporations failing to meet the July 1 annual report deadline. Again no record is maintained of this mailout.

   Finally, on or about 1 December the computer researches the computer banks and all corporations which have not filed annual reports for that year are sent a Certificate of Dissolutionment, and the Department of State, Division of Corporations, is sent a computer printout of the companies, and their respective addresses, which the computer has dissolved. This computer printout is put on a microfiche card for future references.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings. Section 607.357(1) Florida Statutes, requires each domestic corporation authorized to transact business in Florida to file with the Department of State, on or after January 1, and before July 1, of each year, a sworn report on such forms as the department shall prescribe. Section 607.357(6) further states that any corporation failing to file the annual report shall be subject to dissolution or cancellation of its certificate of authority to do business. By failing to file the annual reports as required, Petitioner was in violation of these statutory provisions.

   
   

7. Section 607.271 Florida Statutes provides in pertinent part:

   
   

   1. A corporation may be dissolved involuntarily by order of the Department of State when the Department of State has determined that:

      1. The corporation has failed to file its annual report or pay the annual report filing fee within the time required by this chapter.

   2. No corporation shall be involuntarily dissolved under subsection (2) unless the Department of State gives the corporation not less than 90 days' notice of the proposed dissolution, stating the reasons therefor, addressed to its registered office or to its principal place of business and the corporation has failed prior to such involuntary dissolution to correct the reasons for the proposed involuntary dissolution.

      
      

8. Although no one could testify that actual notice was mailed to Petitioner regarding its failure to file annual reports in 1976, the computer in which these records were stored was programmed to send out such notices and the notices were presumably sent. Furthermore, Petitioner had been in business for several years and had filed annual reports prior to 1976 and its officers obviously were aware of this requirement.

   
   

9. From the foregoing it is concluded that Little Havana Activities Center, Inc. was properly dissolved for failing to file its annual report for 1976. It is therefore

RECOMMENDED that the petition be dismissed. Entered this 15th day of January, 1980.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Edward A. Carhart, Esquire Flagler Center Building

Suite 2000

44 West Flagler Street Miami, Florida 33130

William J. Gladwin, Jr., Esquire Assistant General Counsel

Office of the Secretary of State The Capitol

Tallahassee, Florida 32301

Docket for Case No: 79-002135

Orders for Case No: 79-002135