n
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DAVID NIXON, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-0248
) STATE OF FLORIDA, DEPARTMENT ) OF GENERAL SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case before Michael
Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 29, 1987, in Gainesville, Florida.
APPEARANCES
For Petitioner: Phil S. Witeka, Esquire
Attorney At Law
537 Northeast First Street, Suite 3 Gainesville, Florida 32601
For Respondent: Sandra E. Allen, Esquire
Office of General Counsel Department of General Services Room 452, Larson Building
200 East Gaines Street Tallahassee, Florida 32399-0955
INTRODUCTION AND BACKGROUND
On September 22 1986, David Nixon, Inc., filed a request for certification as a minority business enterprise with the Respondent, the Department of General Services. By letter dated December 17, 1986, the Respondent advised the Petitioner it intended to deny certification. The Petitioner, David Nixon, Inc., filed a Petition for Formal Hearing challenging the Respondent's denial.
At the formal hearing, the Petitioner presented the testimony of David Nixon, Barbara C. Nixon, William Landis, Marcia Gallaher, William T. Thompson, and Kim Newsom. Joint Exhibits 1 through 42 were accepted into evidence, with the executed copy of the affidavit of Patricia Ferrell being filed later by agreement of the parties. The Respondent did not call any witnesses.
Subsequent to the hearing, both parties filed proposed recommended orders containing proposed findings of fact. Specific rulings on all proposed findings are contained in the Appendix which is attached to and incorporated into this recommended order.
ISSUE
The issue in this case is whether Barbara C. Nixon has control of the management and daily operation of David Nixon, Inc., within the contemplation of Rule 13-8.05(3), Florida Administrative Code.
FINDINGS OF FACT
Based on the testimony of the witnesses and on the exhibits received in evidence, I make the following findings of fact.
The Petitioner, David Nixon, Inc., was established as a Florida corporation by filing Articles of Incorporation with the State of Florida on March 21, 1984.
The Articles of Incorporation of David Nixon, Inc., at Article III, indicate the corporation was organized for the purpose of transacting a general construction business as well as any other lawful business.
Article IV of the Articles of Incorporation of David Nixon, Inc., authorizes one hundred (100) shares of common stock to be issued at a par value of five dollars ($5.00).
Article VII of the Articles of Incorporation of David Nixon, Inc., provides that initially the corporation would have two (2) Directors but further provides that the Directors may be increased or decreased from time to time by the By-Laws, but that there should never be less than one (1) Director. The names of the initial Directors of the corporation were C. David Nixon and Barbara C. Nixon, who are husband and wife.
Article XIII of the By-Laws of David Nixon, Inc., vests the power to adopt, amend or repeal the By-Laws exclusively in the Board of Directors.
Article XI of the Articles of Incorporation of David Nixon, Inc., vests in the Board of Directors the exclusive right to amend or repeal any provision contained in the Articles of Incorporation.
Neither the Articles of Incorporation nor the By-Laws of David Nixon, Inc., provides for cumulative voting of shares.
The Articles of Incorporation filed by David Nixon, Inc., were consented to and ratified by the shareholders and were approved for insertion in the record book of the corporation by the shareholders. The Articles of Incorporation were further adopted by the Board of Directors of David Nixon, Inc., at the organizational meeting of the board of Directors on May 23, 1984.
The Petitioner corporation had By-Laws regulating the conduct of the business and affairs of the corporation prepared by its attorneys and these By- Laws were adopted by the Board of Directors at the organizational meeting of May 23, 1984.
Article III, Section 1, of the By-Laws of David Nixon, Inc., provides that the business of the corporation shall be managed and its corporate powers exercised by a Board of two (2) Directors.
Article III, Section 2, of the By-Laws of David Nixon, Inc., provides that the Directors shall be elected at the annual meeting of shareholders and each Director elected shall hold office until the Director's successor has been elected and qualified, or until prior resignation or removal.
Article II, Section 2, of the By-Laws of David Nixon, Inc., provides that the stockholders shall elect the Board of Directors at the annual stockholders meeting.
Article II, Section 6, of the By-Laws of David Nixon, Inc., provides that every shareholder shall be entitled at each meeting of shareholders and upon each proposal presented at each meeting to one (1) vote for each share recorded in the shareholder's name on the books of the corporation on the record date. Article II, Section 6, further provides that the affirmative vote of the majority of shares represented at the shareholder meeting shall be the act of the shareholders.
Article II, Section 3, of the By-Laws of David Nixon, Inc., provides that a special meeting of shareholders may be called by the Board of Directors or by holders of not less than one-tenth (1/10) of all the shares entitled to vote at the shareholders meeting.
Article III, Section 4, of the By-Laws of David Nixon, Inc., provides that any or all of the Directors of the corporation may be removed with or without cause by vote of a majority of all the shares outstanding and entitled to vote at a special meeting of shareholders called for that purpose.
Article IV, Section 1(a), provides that the Board of Directors may elect or appoint a President, a Vice-President, a Secretary and a Treasurer, and such other officers as it may determine who shall have such duties and powers as are set forth in Article IV of the By-Laws of David Nixon, Inc.
Article IV, Section 1(b), provides that in the event of the death, resignation, or removal of an officer, the Board of Directors in its discretion may elect or appoint a successor to fill the unexpired term.
Article IV, Section 1(c) and (d), provides that any two or more offices in the corporation may be held by the same person and the Board of Directors shall fix the salaries of all officers of the corporation.
Article IV, Section 3, of the By-Laws of David Nixon, Inc., enumerates those powers and duties delegated by the Board of Directors to the President of the corporation and provides that the President shall be the chief executive officer of the corporation and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation and further provides that the President will execute bonds, mortgages, and other contracts on behalf of the corporation.
Article IV, Section 4, of the By-Laws of David Nixon, Inc., provides that during the absence or disability of the President, the Vice-President, if one is elected, shall have all the powers and functions of the President. Each Vice-President shall perform such other duties as the Board shall prescribe.
Article IV, Section 5, enumerates those powers and duties delegated in the By-Laws by the Board of Directors to the Secretary of the corporation.
Article IV, Section 7, of the By-Laws of David Nixon, Inc., enumerates those powers and duties delegated in the By-Laws by the Board of Directors to the Treasurer of the corporation.
Article VIII of the By-Laws of David Nixon, Inc., provides for further delegation of powers and duties to officers or agents of the corporation as the Board of Directors may from time to time designate.
Article XI of the By-Laws of David Nixon, Inc., provides that whenever a conflict arises between the language of the By-Laws and Articles of Incorporation, the Articles of Incorporation shall govern.
The Petitioner corporation, David Nixon, Inc., was established by C. David Nixon and Barbara C. Nixon when the former employer of C. David Nixon retired and closed down Arnold & Wright Construction Company in Gainesville, Florida. C. David Nixon and Barbara C. Nixon were the initial directors and are the sole stockholders of the corporation.
C. David Nixon has a high school diploma and attended one year of junior college. At the time the Petitioner corporation was formed, C. David Nixon had been working in the construction industry for approximately eleven years. He has held a contractors license since passing the State of Florida Building Contractors exam in 1980.
Barbara C. Nixon also has a high school diploma and also attended one year of junior college. Prior to the formation of the Petitioner corporation, all of her work experience was as a clerk-typist or secretary in government agencies or businesses other than the construction industry. Barbara C. Nixon's only experience in the construction industry has been in the course of her activities with the Petitioner corporation. Barbara C. Nixon does not have a contractors license.
On May 23, 1984, C. David Nixon purchased forty-six (46) shares of the one hundred (100) shares of common stock authorized to be issued by David Nixon, Inc., and Barbara C. Nixon purchased forty-four (44) shares of stock in the Petitioner corporation on the same date. Ten (10) shares of the authorized stock remained unissued at that time.
C. David Nixon was immediately employed by the Petitioner corporation as the general superintendent of construction and on March 27, 1984, was appointed and designated as the corporate construction agent and authority was delegated to him to act on behalf of the corporation in relation to construction matters. Between March of 1984 and November of 1984, Barbara C. Nixon worked part-time at night and on weekends for the Petitioner corporation and was employed as a Director and as Secretary and Treasurer of the Petitioner corporation. Since November of 1984, Barbara C. Nixon has worked full-time for the Petitioner corporation and has continued in her capacities as a Director, Secretary, and Treasurer of the Petitioner corporation.
Between March of 1984 and September 15, 1986, C. David Nixon served as a Director and as President of the Petitioner corporation and Barbara C. Nixon served as Director, Secretary, and Treasurer of the Petitioner corporation.
On September 15, 1986, Barbara C. Nixon purchased seven (7) shares of the ten (10) shares of stock which had been authorized but had not been issued by the Petitioner corporation, thereby becoming the majority stockholder of the Petitioner corporation. There was no reason for this purchase of additional
shares of stock other than to attempt to qualify the Petitioner corporation for certification as a minority business enterprise.
On September 15, 1986, Barbara C. Nixon was elected President, Secretary, and Treasurer of the Petitioner corporation and C. David Nixon was elected Vice-President of the Petitioner corporation. Each of them continued as one of the two directors of the Petitioner corporation. Upon becoming President, Barbara C. Nixon began signing all of the corporation's contracts with owners, contracts with subcontractors, and bids. These documents had previously been signed by C. David Nixon when he was President. Other than the change in who signed documents on behalf of the corporation, the respective job duties and functions of Barbara C. Nixon and C. David Nixon have remained essentially the same as they were prior to the time of Barbara C. Nixon's purchase of a majority of the stock and her election to the position of President. There was no reason for the change in officers on September 15, 1986, other than an attempt to qualify the Petitioner corporation for certification as a minority business enterprise.
The position of Vice-President of the Petitioner corporation has not had any specific powers or duties delegated to it in the By-Laws or by the Board of Directors. The Vice-President serves in the capacity of the President in the absence of the President.
On September 19, 1986, the Petitioner corporation filed an application and supporting papers for certification as a minority business enterprise pursuant to Chapter 288, Florida Statutes. At the time the application for certification as a minority business enterprise was filed by the Petitioner corporation, Barbara C. Nixon owned fifty-one per cent (51%) of the authorized shares of stock of the Petitioner corporation and owned 52.57 percent of the shares of stock of the corporation which had actually been issued. The request for certification was based on Barbara C. Nixon's minority status as a woman and on her ownership of more than 51 percent of the stock of the Petitioner corporation.
At the time the Petitioner corporation submitted its application for certification as a minority business enterprise, C. David Nixon and Barbara C. Nixon were the sole Directors of the corporation and in their capacity as the Board of Directors had delegated authority and control over the construction matters undertaken by the corporation to C. David Nixon, the qualifying agent for the construction company.
C. David Nixon and another employee, William C. Landis, III, both hold contractors licenses with the State of Florida and are employed by the Petitioner corporation. Only C. David Nixon has been designated and appointed by the Board of Directors as qualifying agent for the Petitioner corporation and is authorized to represent the corporation in all construction matters as is required by Section 489.105 of the Florida Statutes (1986 Supp.).
William C. Landis, III, and other key personnel are employed as construction supervisors for certain construction projects of the corporation and authority has been delegated to each project supervisor to supervise the construction work, and they are authorized to purchase small hand tools and other items as needed on the construction site. The project supervisors have been delegated the power to hire and fire laborers and carpenters and other construction personnel as needed for the particular job they are supervising.
C. David Nixon, as construction superintendent, schedules the chronological sequence of the construction work with the job supervisors, owners, architects, and subcontractors. He also directs, inspects, and oversees the construction work at all job sites and works closely with the individual construction supervisors on the job sites to keep the construction work progressing in a timely fashion by having the subcontractors and materials scheduled to appear at the job site to perform their work at the time the work they are to perform becomes available.
Section 489.119(2), Florida Statutes (1985), requires that a corporation which engages in contracting must apply for a license through a qualifying agent. The Petitioner corporation has complied with Section 489.119(2), Florida Statutes (1985), by employing C. David Nixon as construction superintendent and by designating and appointing him as the qualifying agent for the corporation and delegating authority to him over all construction matters.
C. David Nixon, as one of the two Directors of the Petitioner corporation, is vested with the authority to share in the responsibility to supervise, direct, manage, and control the business and activities of the Petitioner corporation with Barbara C. Nixon, the other Director.
The Board of Directors of David Nixon, Inc., has delegated to their qualifying agent, C. David Nixon, the responsibility to supervise, direct, manage, and control the daily construction activities on the construction job sites.
Section VI(1) of the Application for Certification includes the following request:
Minority Owners Possess Control over the Management and Daily Operation of the Business
Identify the person(s) responsible for the day to day management and operation
of the company. List the major responsibilities for each person after their name.
In response to Section VI(1) of the request, the following answer was given:
Barbara C. Nixon - Office Manager bookkeeping, payroll and records, contract management, purchasing
agent, assisting with bids, subcontract bid solicitation, etc.
C. David Nixon - Project Manager and Estimator.
This response was still true at the time of the hearing in this case.
Barbara C. Nixon is presently office manager for the corporation, performing all of the secretarial and bookkeeping duties. There are no other office employees. Barbara C. Nixon rarely visits a job site, and when she does, it is to deliver supplies. She spends the majority of her time in the office or running office related errands such as pickup and delivery of bid materials or
going to the post office. Decisions made while acting in her capacities as President, Secretary, and Treasurer are made with the approval of C. David Nixon.
C. David Nixon is the technical construction expert of the Petitioner. He supervises the job supervisors and makes the ongoing and final decisions on how a project is built. C. David Nixon spends, on the average, 5 hours a day in the field visiting the job sites and 3 hours in the office. C. David Nixon and Barbara C. Nixon consult with each other concerning the business on a daily basis. They also consult with other persons working for or with the Petitioner, including subcontractors, laborers and field supervisors. Barbara C. Nixon generally consults with the secretaries or office mangers of other companies concerning such matters as bid documents, the requests for subcontractor bids, and the requests for payment by subcontractors. C. David Nixon consults with people such as owners, architects, engineers, and licensed specialty subcontractors concerning the technical questions of a project or a proposed project. The company generally uses the same subcontractors that it has used since the beginning of the company. C. David Nixon deals with the subcontractors regarding technical questions both during the bidding process and in doing the actual project work.
The bidding process is done jointly by C. David Nixon and Barbara C. Nixon. Barbara C. Nixon reviews Dodge reports and other project announcements to see if they are within the scope of the company's work and bonding capacity. She picks up plans and specifications and brings projects of interest to C. David Nixon for his review. C. David Nixon makes the final decision on whether to bid a project or not. He does the volume take-offs and estimates some of the subcontractor work. Barbara C. Nixon calls for prices of specialty items. Barbara C. Nixon prepares the final bid package, delivers it, and attends bid openings.
C. David Nixon hired all of the full-time job supervisors and construction workers. Most of them had worked for his previous employer and he hired them when he formed the Petitioner corporation. Among these individuals are C. David Nixon's brother and uncle. In December of 1986 the Petitioner corporation hired C. David Nixon's father. This was a joint decision of C. David Nixon and Barbara C. Nixon. The Petitioner corporation never had any office workers except for Barbara C. Nixon and has never fired any of its full- time employees. The laborers who work on various jobs are chosen from a pool of applicants by the job supervisors, who also have authority to fire the laborers.
Either C. David Nixon or Barbara C. Nixon can sign checks on the Petitioner corporation's accounts. Both have signed checks. Barbara C. Nixon has signed 99 percent of the checks since she came to work full-time in November 1984. She has signed most of the checks both before and after she became President.
The Petitioner does not own much equipment. C. David Nixon bought two of the three trucks owned by the corporation from his previous employer. The corporation also bought a vehicle from C. David Nixon. Barbara C. Nixon has purchased the office equipment. Tools and supplies that are needed for ongoing projects are ordered by the individual job supervisors, and Barbara C. Nixon verifies these purchases and makes payment for them.
Barbara C. Nixon has generally been paid approximately one-half of the salary of C. David Nixon. The annual salary for Barbara C. Nixon as President for 1987 is $12,480 and for C. David Nixon as Vice-President is $20,000.
C. David Nixon searched for, applied for, and obtained the bonding company which the Petitioner corporation still uses. Both C. David Nixon and Barbara C. Nixon deal with the bonding company at present. Little evidence was presented as to the corporation's financial structure or as to the extent of C. David Nixon's and Barbara C. Nixon's knowledge of the financial structure.
There was no persuasive competent substantial evidence to show that Barbara C. Nixon has the capability, knowledge, and experience necessary to make decisions with regard to commercial construction.
There was no persuasive competent substantial evidence to show that Barbara C. Nixon has displayed independence and initiative in conducting all major aspects of the Petitioner's business.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.57(1), Fla. Stat.
The Petitioner seeks approval of certification as a minority business enterprise. The burden of proving such entitlement is on the Petitioner. Rule 28-6.008, Florida Administrative Code, and Florida Department of Transportation
v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
A "minority business enterprise" is defined by Section 288.703, Florida Statutes, as:
[A]ny small business concern as defined in subsection (1) which is organized to engage in commercial transactions, which is domiciled in Florida, and which is at least
51 percent owned by minority persons and whose management and daily operations are controlled by such persons... (emphasis added.)
In this case, there is no question that a "minority person" (Mrs. Nixon), as defined in Section 288.703(3)(f), Florida Statutes (1985), owns at least 51 percent of the stock of the Petitioner. The issue is whether Mrs. Nixon controls the management and daily operations of the Petitioner.
The Respondent has promulgated Rule 13-8.005(3), Florida Administrative Code, which sets out certain factors to be considered in determining the issue in this case:
An applicant must establish that the minority owners possess control over the management and daily operations of the business. The Department will consider the following factors:
Whether the minority owners have control over the purchase of goods, equipment,
business inventory and services needed in the day-to-day operation of the business.
Whether the minority owners have the authority to hire and fire employees.
Whether the minority owners have a knowledge of the financial structure of the business and control over all financial affairs.
Whether the minority owners control business accounts, checking, savings, and other financial affairs.
Whether the minority owners have the capability, knowledge, and experience required to make decisions regarding that particular type of work.
Whether the minority owners have displayed independence and initiative in seeking and negotiating contracts, accepting and rejecting bids and in conducting all major aspects of the business.
As noted in the Recommended Order in Barton S. Amey Company, Inc., v. Department of General Services, DOAH Case No. 86-3954, DOS Final Order, April 21, 1987:
The factors included in Rule 13-8.005(3), Florida Administrative code, can be grouped into three general categories. First, the minority person must have control over the purchase of goods, equipment, business inventory and services, control over all financial affairs and business accounts and authority to hire and fire. The term "control" has been defined as "to exercise authority over; direct; command."
"Authority" has been defined as "the power or a right to command, act, enforce obedience, A or make final decisions; jurisdiction." Webster's New Twentieth Century Dictionary, Unabridged 1980
The Petitioner is a Florida corporation. It is therefore governed by the provisions of Chapter 607, Florida Statutes 1985). Chapter 607, Florida Statutes (1985), provides the manner in which a corporation may be controlled. In particular, Section 607.111, Florida Statutes 1985), provides:
Board of directors, exercise of corporate powers.
All corporate powers shall be exercised by or under the authority of, and the business and affairs of a corporation shall be managed under the direction of, a board of directors, except as may be
otherwise provided in this chapter or in the articles of incorporation. If any such provision is made in the articles of incorporation, the powers and duties
conferred, or imposed upon the board of directors by this chapter shall be exercised or performed to such extent and by such person or persons as shall be provided in the articles of incorporation.
Section 607.121, Florida Statutes (1985), provides:
Director quorum and voting.--A majority of the number of directors fixed by, or in the manner provided in, the bylaws or, in the absence of a bylaw fixing or providing for the number of directors, then of the number stated in the articles of incorporation shall constitute a quorum for the transaction of business, unless a greater number is required by the articles of incorporation or the bylaws. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by the articles of incorporation or the bylaws.
The evidence in this case proves that Barbara C. Nixon and C. David Nixon are the only Directors of the Petitioner. The corporate bylaws indicate that the business of the corporation shall be managed and its corporate powers exercised by the Board of two (2) Directors. Article III, Section 1. Because there are only two Directors, they both must agree as to how to exercise the Petitioner's powers. Neither Barbara C. Nixon nor C. David Nixon alone has the present power or authority to exercise the corporate powers of the Petitioner.
The evidence presented proves that Barbara C. Nixon has been making decisions with regard to the purchase of office equipment for the Petitioner, that she has joint control of the financial affairs of the Petitioner, and that she has been signing most of the checks drawn on the Petitioner's business accounts. The evidence presented also proves that C. David Nixon made the decisions with regard to hiring the initial employees, buying the company vehicles, and setting up the company's bonding program, and that he has the ability to sign on the company's checking accounts.
The evidence does not prove that Barbara C. Nixon controls the purchase of goods and equipment. No evidence was presented as to who purchases services, such as accounting and insurance for the company. No evidence was presented to show that Barbara C. Nixon controls the financial affairs of the Petitioner or the Petitioner's business accounts or that she has the authority to hire and fire, or that she had hired or fired. It appears that functions such as control of the financial affairs of the Petitioner, control of hiring and firing, and control of purchases of equipment and services are functions within the control of the Petitioner's Board of Directors.
C. David Nixon and Barbara C. Nixon are both members of the Petitioner's Board of Directors. A single Director does not have the authority to make decisions on behalf of the entire Board of Directors. Therefore, decisions made by either C. David Nixon or Barbara C. Nixon have been made either with the tacit or express approval of the other Director of the
Petitioner, or the decisions were invalidly made because they were not made with the approval of both Directors of the Petitioner.
It is claimed that because Barbara C. Nixon has made decisions on behalf of the Petitioner in each of her several capacities as Director, President, Secretary, and Treasurer, she, therefore, controls the management and daily operation of the company. Although C. David Nixon and Barbara C. Nixon both testified that in her capacities as President, Secretary, and Treasurer, Barbara C. Nixon carries out the duties which are listed for each of these officers in the corporate bylaws, they also testified that upon becoming President the only change in her duties is that she, rather than he, now signs the contracts and bids. Barbara C. Nixon also testified that she makes decisions with the approval of C. David Nixon.
When consideration is given to all of the evidence regarding the respective roles of C. David Nixon and Barbara C. Nixon, the most that can be said of Barbara C. Nixon's role is that she shares control with C. David Nixon; she does not control the Petitioner corporation to the exclusion of C. David Nixon. Most of the functions performed by Barbara C. Nixon in all of her capacities are ministerial, administrative types of functions. The majority of the important decisions--the significant management decisions that' affect the future course of the corporation--appear to be either joint decisions by both C. David Nixon and Barbara C. Nixon or decisions made solely by C. David Nixon.
Based on the foregoing, it is concluded that the Petitioner has failed to prove that Barbara C. Nixon presently has the authority or power to exercise the corporate powers of the Petitioner. Although she makes some decisions with regard to the day to day operations of the corporation, it has not been proved that she has the requisite authority or power to control those activities to the exclusion of such control by C. David Nixon.
The evidence also failed to prove that Barbara C. Nixon has control over the Petitioner's business accounts. Although in practice she signs most of the checks drawn on the Petitioner's accounts, C. David Nixon also has authority to sign checks on those accounts and has done so in the past. Therefore, Barbara C. Nixon does not control the Petitioner's business accounts to the exclusion of C. David Nixon.
With regard to the issue of whether Barbara C. Nixon has knowledge of the financial structure of the Petitioner corporation, there is simply a failure of proof. Very little evidence was offered regarding the financial structure of the corporation, and what proof there is insufficient to support a conclusion that Barbara C. Nixon has knowledge of the financial structure of the corporation.
With regard to the issue of whether Barbara C. Nixon has the capability, knowledge, and experience to make decisions regarding commercial construction, the evidence shows that there is very little she can independently decide. She has no experience in the field work or the actual performance of the construction, so she must rely on others for decisions in that aspect of the business. Similarly, she lacks the knowledge and experience necessary to prepare estimates and must rely on C. David Nixon to prepare estimates, to decide what projects to bid on, and to decide how much to bid. Barbara C. Nixon had no prior knowledge of the construction industry before coming to work full- time for the Petitioner corporation and there is no evidence that she has since acquired sufficient knowledge to make the decisions necessary to manage a
construction company or to meaningfully delegate decision-making to others in the corporation.
With regard to the issue of whether Barbara C. Nixon has displayed independence and initiative in seeking and negotiating contracts, accepting and rejecting bids, and in conducting all major aspects of the business, the proof establishes that she has not. There are several major aspects of the business in which she has no role. And in the aspects of the business where she does play a significant role, the greater weight of the evidence is to the effect that she does not act with independence, but only with the approval of C. David Nixon.
Based upon all of the foregoing, it is concluded that the Petitioner corporation has failed to prove that Barbara C. Nixon controls the management and daily operations of the Petitioner as contemplated by Rule 13-8.005(3), Florida Administrative Code.
On the basis of the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the Petitioner's request for certification as a minority business enterprise.
DONE AND ENTERED this 24th day of June, 1987, at Tallahassee, Florida.
MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0248
The following are my specific rulings on each of the proposed findings of fact submitted by the parties:
Findings proposed by Petitioner
The findings in paragraphs 1 through 26 are accepted with a few minor editorial revisions.
Paragraph 27 is rejected as irrelevant. Paragraphs 28, 29, and 30 are accepted.
Paragraph 31 is accepted in substance with unnecessary details omitted. Paragraphs 32 through 37 are accepted.
The first six lines and the first five words of the seventh line of paragraph 38 are accepted. The remainder of paragraph 38 is rejected as contrary to the greater weight of the evidence regarding the authority actually exercised by Barbara C. Nixon.
Paragraph 39 is rejected as constituting a summary of positions taken by the parties rather than proposed findings.
Paragraph 40 is rejected as a statement of the issues rather than proposed findings of fact.
Paragraphs 41 through 48 are accepted with a few minor editorial revisions.
Paragraph 49 is rejected as contrary to the greater weight of the evidence regarding the authority actually exercised by Barbara C. Nixon.
Paragraph 50 (including its various subparts) is rejected for several reasons including the fact that most of it consists of unnecessary and subordinate details and parts of it are contrary to the greater weight of the evidence or contain inferences not supported by the evidence. (The findings made on the subject of the duties of Barbara C. Nixon are closer to the version proposed by the Respondent.)
Findings proposed by Respondent
The findings in paragraphs 1 through 26 are accepted in substance, with some unnecessary details omitted. (Much of the substance covered by these findings has been included in the form proposed by the Petitioner.)
Paragraph 27 is rejected as subordinate and unnecessary detail.
The findings in paragraphs 29 through 33 are accepted in substance, with some unnecessary details omitted.
COPIES FURNISHED:
Sandra E. Allen, Esquire Department of General
Services
Room 452, Larson Building
200 East Gaines Street Tallahassee, Florida 32399-0955
Phil S. Witeka, Esquire
537 Northeast First Street, Suite 3 Gainesville, Florida 32601
Ronald W. Thomas, Executive Director Department of General Services
Room 133, Larson Building
200 East Gaines Street Tallahassee, Florida 32399-0955
| Issue Date | Proceedings |
|---|---|
| Jun. 24, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 25, 1987 | Agency Final Order | |
| Jun. 24, 1987 | Recommended Order | Evidence fails to prove that minority person controls management and daily affairs of company seeking Minority Business Enterprise certification; certificate denied. |
