STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FALCON MECHANICAL, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-1950
) STATE OF FLORIDA DEPARTMENT OF ) GENERAL SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, a formal hearing was held October 5, 1988, in Miami, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Gerald B. Sternstein, Esquire
MacFarlain, Sternstein, Wiley & Cassedy, P.A.
Suite 600, First Florida Bank Bldg. Post Office Box 2174
Tallahassee, Florida 32316-2174
For Respondent: Sandra D. Allen, Esquire
Office of General Counsel Department of General Services
200 East Gaines Street Room 452, Larson Building
Tallahassee, Florida 32399-0955 ISSUE
Whether the Petitioner is eligible for certification as a Minority Business Enterprise?
PRELIMINARY STATEMENT
Petitioner presented the oral testimony of Kathleen Weber, its President.
By deposition (P-1), Petitioner also presented the testimony of Marsha Nims. Petitioner had two exhibits admitted into evidence. Respondent presented the oral testimony of Lloyd Ringgold, and by deposition, the testimony of Angel Alvarez, Robert Pacitti, Jose M. Arias, Harry G. Middleton III, Harry G. Middleton Jr., and Bradley J. Geissinger. Respondent's Exhibits 1-13 were admitted into evidence.
The Prehearing Stipulation of the parties was admitted as Joint Exhibit A.
Official recognition was taken of Sections 287.0943 and 288.703, Florida Statutes, of Ch. 13-8, Florida Administrative Code, and of the Final and Recommended Orders in Dees, Inc. v. Department of General Services, DOAH Case No. 87-0515.
Transcript was duly filed and all timely proposed findings of fact have been ruled upon in the Appendix to this Recommended Order.
FINDINGS OF FACT
The Other Eligibility Criteria
The Petitioner is a corporation formed in 1984, whose sole stockholder, only Director, and President is Kathleen Weber, a minority person. Respondent, Department of General Services (DGS) concedes that Petitioner corporation meets all eligibility criteria for certification as a Minority Business Enterprise (MBE) except for the number of permanent, full-time employees, which statutory component is the sole focus of the dispute in this cause. Eligibility in this regard hinges on the employment of "25 or fewer permanent full-time employees."
Petitioner engages in the provision and installation of plumbing, HVAC ventilation, fire protection, process piping, and potable and waste water systems in the commercial construction field.
Permanent, Full-time Employees
Ms. Weber claims no part-time employees and considers all employees to be full-time. That is, all employees work, when they work, for a full forty hours per week. However, Ms. Weber classifies her employees, as of date of formal hearing, into two categories of full-time employees: office employees and field employees. Petitioner asserts that the office employees are permanent, while the field employees are not permanent.
At the time of the hearing, petitioner had twelve permanent office employees whose positions included Ms. Weber, six project managers, accounting and estimating personnel, and clerical help. Office employees are paid for holidays, sick leave and vacation, and insurance. They are paid a salary on a monthly basis. They are covered by written corporate employment policies.
The number of field employees fluctuates between sixty and ninety. Their number and makeup are determined on an "as needed" basis, depending upon the securing by petitioner of a construction contract upon which they can be employed, the size of the "job" and the stage of completion of each job undertaken by Petitioner at any given time. As individuals, these employees do not work on a guaranteed, regular, or predictable basis. The corporation does not have or display any written employment policies concerning them. Sometimes, field employees are hired through a labor company. Usually, as with most non- union construction companies, they are hired upon word of mouth, reputation, and as they present themselves at the job.
Field employees are paid only for the hours that they actually work. They may be moved from job to job to accommodate the schedule on each job and to avoid Petitioner laying off personnel that may be needed again soon. Their pay scale ranges from $6.00 to $14.00 an hour with $8.00 being an average.
Field employees' wages are set by Bob Pacitti, the head project manager. When a man in the field feels that he is entitled to a raise and asks
for it, then a form is filled out by a superintendent who gives it to Bob Pacitti who approves or disapproves the raise. Final approval of a wage increase is made by Ms. Weber. There is no set beginning wage for field employees. Their hourly rate depends on the experience of the worker, the type of work, how badly an employee is needed, add if there is a labor crunch or not. There is no set review period for deciding whether a field employee is entitled to a raise. Field employees are not paid for sick time, holidays, or vacation time.
The company designates a field worker, who is called a "foreman" for each job in progress. The "foreman" telephones on a daily basis to the office personnel to inform them of the time worked for all field workers on his particular job/site.
After working for the company for one month, field employees are eligible to join the major medical group health insurance plan. The employee is automatically put on the insurance and the company pays the premium for an individual employee. Once an employee has stopped working for two weeks, he is taken off the insurance, retroactive to the last day he worked, and sent a letter indicating that he can assume the insurance premium payment himself through petitioner. Although there is no direct-testimony to that effect, it can be inferred from Ms. Weber's testimony that the health insurance premium for the company is somehow calculated on a regular basis to anticipate at least some number of continuously, employed field employee positions.
Two separate payroll ledgers are generated by petitioner: one for field employees and one for office employees.
Superintendents Frank Llama and Don De Silva are included in the field employees' weekly computerized payroll but are nonetheless considered by Ms. Weber as permanent employees. The monthly office employee payroll is done by hand.
There were about ninety field employees on the last field employee payroll before the date of formal hearing.
As of the date of formal hearing, Petitioner was working on twelve projects. The twelve projects have a contract amount ranging from $123,000 to
$6,200,000, which may last from a few months to almost two years. The total contract amount for the twelve contracts is in excess of $14,000,000.
Each project is assigned one of the six project managers who oversee the job. Frank Llama is a superintendent who is in charge of field operations. He travels from job to job making sure that things are done the way they are supposed to be done Don De Silva performs the same supervisory function, but his work is generally limited to supervision of the air conditioning aspects of the projects.
There were thirty-three individual field employees (not counting superintendents Llama and De Silva) who were listed on the applicant's payroll as of 6/19/86 who were also listed on the last payroll for 1986. These employees were continuously employed throughout that time frame. There were twenty-two individual field employees (not counting Llama and De Silva) who were listed on the Petitioner's first payroll for the year 1987 and who were also listed on the last payroll for 1987. Most of these field employees were continuously employed by Petitioner for all or a significant part of that year. There were forty-seven field employees (not counting Llama and De Silva) who
were listed on the first payroll for 1988 and who were also listed on the 9/08/88 payroll. Some non-supervisory field employees were employed continuously from one year to the next, and a few were continuously employed for all or the better part of the two or three years. Each had federal income and FICA taxes deducted from his salary while employed by Petitioner.
During 1986, 1987, and the first two quarters of 1988, the Petitioner reported the following number of office and field employees on the initial Florida Employer's Quarterly Wage and Tax Report, for Florida Unemployment Compensation purposes:
1986 1987 | 1988 | |||
Jan. | 77 | 74 | 97 | |
Feb. | 1st | 91 | 79 | 105 |
March | 93 | 81 | 107 | |
April | 116 | 96 | 96 | |
May | 2nd | 117 | 98 | 96 |
June | 108 | 105 | 96 | |
July | 127 | 122 | ||
August | 3rd | 100 | 122 | |
Sept. | 106 | 112 | ||
Oct | 91 | 108 | ||
Nov. | 4th | 74 | 110 | |
Dec. | 68 | 110 | ||
Petitioner's gross receipts in the fiscal year ending March 31, 1986, were $5,702,138. Its gross receipts for 1987, $3,466,926. Its gross receipts for 1988, were $3,917,190.
Non-Rule Policy
Petitioner's initial application for MBE certification was deemed incomplete by DGS. The application did not respond to the question that says, "state-the number of current, full-time, permanent employees ", on page 3 of the Certification Application Form 1704. It did not give the name, home address, home telephone number and length of service for each current,
full-time, permanent employee on an attached sheet of paper, also as required by the application form. It did not attach a copy of one or more of the following items:
W-4 Social Security form for each current full-time employee.
The most current Florida Quarterly Unemployment Report.
The most current Federal Annual Unemployment Report. (R-13)
Ms. Weber filled out only the questions relating to minority status.
By letter dated December 15, 1988, Ms. Weber was requested to provide this information by Lloyd Ringgold, Minority Business Assistance Labor Employment and Training Field Representative of the Minority Business Enterprise Office. By letter dated December 23, 1986, Ms. Weber replied, "Falcon Mechanical, Inc., has 22 full-time, permanent employees.
Ms. Weber also included an employee roster showing a list of twenty- two employees. When that employee roster was submitted to the MBE office, twelve of the employees on that roster were paid on a monthly basis and ten were paid on a weekly basis. At the time of the hearing, the applicant no longer employed eight warehouse employees from that roster, who had been paid on a weekly basis. (See Finding of Fact 11).
Without needless elaboration, it is found that Mr. Ringgold and Ms. Weber did not have a meeting of the minds when, during an on-site interview, he requested her to define "full-time employee" and "permanent employee." Her responses then are not inconsistent with her testimony at formal hearing nor with the facts as found supra. Petitioner's President clearly always viewed the field employees as a transient, very flexible, changing labor force who were not office personnel and who did not individually work on both a regular and a predictable basis, whether they worked 40 hours a week in stretches or not. DOS personnel, however, did not understand her responses at the interview this way and applied what Mr. Ringgold thought Ms. Weber meant to both of the Petitioner's payroll ledgers to reach the conclusion that Petitioner employed more than twenty-five permanent full-time employees.
DOS does not have a duly promulgated rule defining the term "permanent employee" which is a crucial component of the element, "permanent full-time employee," within the statutory MBE criterion "small business' which is here at issue. DOS also has no written statement of its policy with regard to such a definition but it asserts it has an unpublished, not publicly declared definition or method for determining the number of permanent full-time employees. DOS admittedly did not explicate, announce, or publish this method to Petitioner or anyone else. When an agency makes such an assertion, it must explicate and demonstrate the reasonableness of its non-rule policy on a case- by-case basis. MacDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So.2d 380 (Fla. 1st DCA 1985). This is a heavy burden, and the non-rule policy does not have the presumption of validity which is afforded formally promulgated agency rules. Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983).
From the testimony of Lloyd Ringgold, and the testimony of his supervisor, Marsha Nims, DGS Employment and Training Manager, it was established that DGS uses the information provided by the applicant on the application form, the Employer's Quarterly Wage and Tax (Unemployment) Reports, and other employee records to initially consider whether an applicant employs twenty-five or fewer permanent full-time employees. What formula, if any, is applied at that stage of agency review, other than a general discussion between DOS employees, was not fully explicated at formal hearing. However, after the first stage of review, if the reviewer has a question as to whether an applicant has more than twenty- five permanent full-time employees, DOS then conducts an on-site interview as it did in this case and relies on the applicant's definition of "permanent" and "full-time" employee given in that interview. The reasoning behind this approach by the agency is apparently that someone within DOS believed such an approach to be the fairest method for judging MBE applicants who represent diverse types of businesses, not all of which businesses are susceptible of easy analysis. No non-speculative rationale was advanced for this method of defining "permanent, full-time employee." This method has built-in external inconsistency and subjectivity as between applicants and is subject to manipulation and control by every applicant. Moreover, as the foregoing findings of fact demonstrate, ordinary conversational misunderstandings subject the method to internal inconsistencies in actual practice. The method/policy
does nothing to apply presumed agency expertise to a program the agency is mandated by statute to administer. The method also was not demonstrated to conform with any generally recognized MBE or employment planning and reporting considerations. Therefore, DOS failed to explicate its non-rule policy and failed to demonstrate its reasonableness.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1), Florida Statutes.
Petitioner is seeking approval of certification as a Minority Business Enterprise. The burden of proving such entitlement is on the Petitioner. See, 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(2), Florida Statutes (1987), as:
Any 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.
A "Small Business" is defined by Section 288.703(1), Florida Statutes (1987), as:
[a]n independently owned and operated business concern which employs 25 or and which has a net worth of not more than $1 million. (Emphasis supplied.)
It is undisputed that Petitioner meets all necessary criteria to qualify as an MBE except as regards whether the Petitioner employs twenty-five or fewer permanent full-time employees.
In attempting to apply a non-rule policy, the burden of establishing both its existence and its rationality rests with the agency. The non-rule policy does not have the presumption of validity accorded-duly promulgated rules. Rini v. State, Department of Health and Rehabilitative Services, 496 So.2d 178 (Fla. 1st DCA 1986); Barker v. Board of Medica Examiners, supra. Herein, DOS was unable to meet its heavy burden, and the non-rule policy cannot be relied upon. Anheuser-Busch v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981).
Therefore, the statutory criteria and normal principles of statutory construction ought to be applied to the facts as found in the de novo formal hearing. See, MacDonald v. Department of Banking and Finance, supra.
At hearing, the evidence proved that Petitioner presently has twelve office-type positions which are clearly occupied by permanent full-time employees: Ms. Weber, six project managers and various other office personnel. The two superintendents, Frank Llama and Don De Silva, whom Ms. Weber considers
as permanent employees even though they are paid on a weekly basis and work in the field, can also be considered as permanent full-time employees.
Additionally, the Petitioner employs a significant number of other laborers who are field employees and work in full-time positions. The Petitioner does not consider the "field employees" as "permanent" employees. Petitioner bases this analysis on the transient nature of field employment and the high turnover in individual field workers which has been accommodated by Petitioner's different payroll and fringe benefit procedures for each group. Petitioner seeks to have this definition accepted for purposes of this proceeding.
However, there is a high degree of regularity and predictability of field employee slots or units or positions in Petitioner's standard operating procedure. On that basis, DOS assesses such permanency of full-time employment/employees so as to preclude MBE certification of Petitioner.
An agency's interpretation of statutes and rules it administers is entitled to great weight, Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983)
Clearly, upon the foregoing findings of fact, it can be concluded that for 1986, there were thirty-three individuals employed by Petitioner in the field for over six months. In 1987, there were at least twenty-two individuals who worked in the field throughout the year for the Petitioner. At least forty- seven individuals worked in the field for an almost nine-month period for Petitioner in 1988. None of these figures "double counts" the two superintendents, who with the office workers, make up an additional fourteen employees in each time frame. Although many of the best field employees may have been moved from project to project so that Petitioner could retain skilled workers as long as possible, such a procedure is not an unusual phenomenon in the construction industry.
The construction industry traditionally has employed a transient work force. The number of "as needed" laborers utilized by a single construction contractor repeatedly ebbs and flows with the local economic climate, with successful and unsuccessful bids of the employer-contractor, with the weather as it affects jobs in progress, with overall completion schedules of each job in progress, and with numerous other factors. The very nature of employment within the construction trade is flexible, and turnover of employees for a single employer is always high. In this respect, Petitioner's situation is not unique, and, indeed, is no different from that of any other construction contractor.
Moreover, employment everywhere and in every business has changed from the "lifetime" type of permanent employment our forebears recognized as the norm. Today, no employer or employee seriously expects guaranteed employment with a single employer to last from entry level hiring to retirement at age 65. There are, then, "short-term" permanent employees versus "long-term" permanent employees in every category of industry, and nowhere is this phenomenon more visible than in the construction industry. Contrary to Petitioner's assertions, the drafters of the MBE legislation in question must have recognized this phenomenon. Such a phenomenon has been addressed in the drafting of other significant labor and employment legislation.
Insight on such current trends of employment can be gleaned from the way this Petitioner handles health insurance (Finding of Fact 9) and from other statutes. Although Petitioner's number of office employees and the nature of
its business alone would require Petitioner to provide Florida unemployment compensation and workers' compensation, it should be noted that Petitioner's field employee category as described by Ms. Weber would not render any of those employees either an "independent contractor" or "casual employee" under the Florida Workers' Compensation Law. See Sections 440.002(4) and 440.02(11)(d), Florida Statutes, Cantor v. Cochran, 184 So.2d 173 (Fla. 1966) and its case progeny, and Davis, "Workers" Compensation" Vols. 6-8 West's Florida Practice. Nor could they qualify as a "casual employee" under the Florida Unemployment Compensation Law. See Section 443.036(9), Florida Statutes.
Because the MBE legislation is remedial in nature, it is necessary to look to the intent of its drafters. The intent was clearly to create a "presumption of disadvantage" and compensate for it by governmental contractual goals (quotas), encouragements, and set-asides to be accessed only by minority entrepreneurs through MBE certification while the entrepreneurs were yet operating small businesses. Certification is subject to annual review. MBE status is lost when the small businesses outgrow their size and minority disadvantage. To this end, a net worth figure and an employee number figure have been inserted in the Act. See, "The Small and Minority Business Assistance Act of 1985: A Unified Approach to Florida Businesses," Virlinda Albritton Sample, 13 FSU L.Rev. 681 (Fall `85).
This intent of the statute is manifested in the following pertinent portions of its preamble (Emphasis supplied):
* * *
WHEREAS, the health of small and minority businesses is central to the overall welfare of Florida's economy and...
WHEREAS, a strong small and minority business sector in Florida can protect an endangered right, the right of the individual to enter productive activity
as a self-reliant independent entrepreneurial and
WHEREAS, the Legislature can encourage of the small and minority business by removing unnecessary burdens imposed on these businesses and by aggressively promoting an atmosphere conducive to their development,...
* * *
In creating the "Florida Small and Minority Business and Assistance Act of 1985," Section 288.702, Florida Statutes (1987), the Florida Legislature intended to promote economic growth of minority businesses which are at the same time small businesses, and the number of permanent, full-time employees was one measurement of that "size" factor. Presumably, minority businesses which have become large through their own efforts, no longer require the compensatory and remedial benefits accruing through state certification to the minority entrepreneur associated with them.
In order to help decide the issue of how many permanent employees the Petitioner employs, and thus how small it is, consideration can also be given to the quantity of work performed by the Petitioner throughout 1986, 1987 and 1988. Although the Petitioner's net worth is under $1,000,000, its gross receipts are considerable. Petitioner permanently employs eight project managers and
superintendents. Petitioner therefore must maintain some number of permanent field employee positions in order to carry out its business. At the time of the hearing, the Petitioner was engaged in twelve projects. Therefore, it appears that at a minimum, the Petitioner must have at least twelve field workers on a permanent basis -- one for each job. Further, the evidence indicated that the Petitioner has always had ongoing work, at a minimum of one and at the most twelve projects. It is common sense that the Petitioner needs more than twelve field employees to work on the twelve projects it is currently performing. In fact, Petitioner's record shows that it has consistently employed from 68 to 122 employees on a monthly basis. (See Finding of Fact 16).
Petitioner's argument that if field laborers in the construction industry are to be construed and treated as permanent employees, then very few or no construction companies (since they are so labor intensive) could be certified as minority businesses, is not persuasive for the reasons given supra. Actually, the converse has been established that if large employer/applicants are required to count as "permanent" only those employees who remain employed for a lifetime, such a procedure would render any minority construction contractor whose net worth remained under $1,000,000, eligible for certification as an MBE, regardless of the size of his workforce. Such a situation would fly in the face of standard procedure for coverage by state unemployment compensation, state workers' compensation, private employer's liability and health insurance, and federal social security. (See, Chapter 440, Florida Statutes, "The Florida Workers' Compensation Law;" Chapter 443, Florida Statutes, "The Florida Unemployment Compensation Law;" and Findings of Fact 9 and 16 supra.) Moreover, it would permit unscrupulous applicants to manipulate the MBE law so as to subvert its intent to offer compensatory aid and incentives for growth only to small minority businesses just starting out, because such unscrupulous applicants could control their number of "permanent full-time employees" by firing all employees the day before each annual DGS certification review or by establishing a policy not to provide full fringe benefits to employees it did not wish to be counted as "permanent."
Finally, while the intent of the drafters is compelling, a case with similar facts to the instant one is also persuasive. In Dees, Inc., v. Department of General Services, DOAH Case No. 87-0575 (Final Order Oct. 8, 1987), the Petitioner was engaged in the business of commercial and industrial painting and related services. That Petitioner argued that its painter positions were not permanent employees, and should not be treated as such by DGS' MBE office. The Hearing Officer therein considered the quantity of work performed by the applicant and the number of foreman it employed, and concluded that the number of permanent painters must, at a bare minimum, total the number of permanent foreman employed or there would be no one for each foreman to oversee. The operative language used by the Hearing Officer was, "Petitioner must maintain some number of permanent positions for painters in order to carry out its business." (Page 25, Recommended Order).
Similarly, in this case, Petitioner Falcon Mechanical, Inc., must have a certain number of positions filled with field workers in order to carry out its business. No certain number need to be fixed on the basis of the six project managers because the evidence shows that, based on the nature of Petitioner's work, the size and number of projects the Petitioner is doing, its gross receipts over the last three years, the pattern of the number of full-time employees it has employed for three years and the large number of individuals who have worked full-time for many consecutive months for the Petitioner, it can be concluded that Petitioner regularly, consistently, and predictably employs more than twenty-five permanent, full-time employees.
Petitioner insisted only two superintendents plus the office staff
(14) can ever be classified as permanent employees on the basis of working on a regular and predictable basis. Although Petitioner's unilateral definition cannot be accepted upon the basis of agency policy/rule (see supra) or as supported by statute, it is interesting to note that if Petitioner's unilateral definition of "permanent full-time employee" as "one who is employed forty hours per week on a regular and predictable basis," were to be applied not just to the
14 positions Ms. Weber named but were also applied to the field worker positions, her definition would also preclude MBE certification.
Petitioner has argued that even if the current minimum number of field employees necessary for each of the ongoing projects so as to have one field employee per job (12 jobs; 12 field employees) were added to the current numbers of office employees (12) the number would total only 24 and Petitioner would still be certifiable as having "25 or fewer" permanent full-time employees.
This theory is fallacious and not accepted. First, it ignores the two superintendents whom even Petitioner classifies as permanent, full-time employees. Second, even if the raw numbers did not add up, Petitioner's pattern of permanent, full-time positions would preclude certification.
Petitioner also cited a number of out-of-state cases, none of which are directly on point of the statute being construed. The only Florida case cited by Petitioner is Russell & Axon v. Handshoe, 176 So.2d 909 (Fla. 1st DCA 1965) cert. den. 188 So.2d 317 (Fla. 1966). Handshoe is clearly distinguishable on its face. Therein, the court was asked to interpret the specific terms of the parties' written employment contract. The dicta therein that permanency of employment is determined by whether or not the employment is terminable at will and whether or not the employee in question receives full fringe benefits is not binding in the face of the clear and compelling remedial intent of the MBE statute, the current economic climate, and the nature of permanent employment in all industries nearly twenty-five years after that decision was rendered.
Upon the foregoing findings of fact and conclusions of law, it is determined that Petitioner is not a "small business" as defined in Section 288.703(1), Florida Statutes.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's request for certification as a Minority
Business Enterprise be DENIED.
DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989.
APPENDIX TO RECOMMENDED ORDER CASE NO. 87-1950
The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF).
Petitioner's PFOF
1-3,5. Accepted in substance but not adopted where subordinate, unnecessary, or cumulative to the facts as found or never at issue.
4,7. Accepted.
6. Rejected as a FOF: covered in conclusions of law (COL).
8-9. Rejected as mere statements of position or argument. To the extent they address the evidence presented and are contrary, they are rejected for that reason. The non-rule policy is addressed within the RO and FOF made therein that conform to the greater weight of the evidence as a whole. 10-16. Accepted in substance but not adopted as cumulative, subordinate, and unnecessary to the facts as found.
17-18. Rejected as cumulative, subordinate, and unnecessary to the facts as found and portions are also mere argument or statement of position.
19. Accepted as Petitioner's classifications only. The second sentence is modified to conform to the relevant and material evidence as a whole.
Respondent's PFOF
1-14. Accepted in whole or in substance except where subordinate, unnecessary, or cumulative. A portion of PFOF 3 has been rephrased so as not to constitute an ultimate conclusion of law. Mere recitations of testimony have been rejected as-such.
15-20. Generally accepted; what is rejected is rejected as contrary to the evidence, cumulative in part, and in part as mere recitations of testimony. Further explanation and rulings are contained within the RO itself.
21-23,25. Accepted in substance, modified to clarify or conform more closely to the record evidence as a whole.
24. Accepted in substance but conformed to the greater weight of the evidence as a whole in FOF 15. During year 1987, Respondent does not state that employees Budgett and Ocasio were not employed for a significant number of pay periods and seems to have confused Ruben Ocasio (59415) and Jose Ocasio (59400) throughout the pay periods as well as with regard to the first and last payrolls. In 1988, Figueroa and Zager were not employed for a significant number of pay periods. The Hearing Officer has read composite exhibit 6 with diligence and has conformed the FOF to the evidence, without cumulative verbiage.
COPIES FURNISHED:
Gerald G. Sternstein, Esquire MacFarlain, Sternstein, Wiley
& Cassedy, P.A.
Suite 600 First Florida Bank Bldg. Post Office Box 2174
Tallahassee, Florida 32316-2174
Sandra D. Allen, Esquire Office of General Counsel Department of General Services
200 East Gaines Street Room 452 Larson Building
Tallahassee, Florida 32399-0955
Ronald W. Thomas Executive Director
Department of General Services
133 Larson Building Tallahassee, Florida 32399-0955
| Issue Date | Proceedings |
|---|---|
| Feb. 24, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 12, 1989 | Agency Final Order | |
| Feb. 24, 1989 | Recommended Order | Case discusses and applies test of how to determine number of permanent employees to arrive at definition of "small business" for Minority Business Enterprise purposes |
