STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C & M BUILDING SYSTEMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-2758

) DEPARTMENT OF GENERAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer in Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: James O. Shelfer, Esquire

Gardner, Shelfer & Duggar 1300 Thomaswood Drive

Tallahassee, Florida 32312

For Respondents: Susan B. Kirkland, General Counsel

Department of General Services Room 452, Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0955

STATEMENT OF THE ISSUES

The ultimate issue to be decided in this proceeding concerns whether the Petitioner C & M Building Systems, Inc. should be granted certification as a minority business enterprise. In order to make that determination it must be decided whether Maxine R. Chentnik, the president of the Petitioner corporation, and its minority group member owner, controls the management and daily operations of C & M Building Systems, Inc.

PRELIMINARY STATEMENT

This cause arose on the filing of a request for certification as a minority business enterprise by C & M Building Systems, Inc. The agency before which that was filed, the Department of General Services, denied that request by its letter to the Petitioner of May 6, 1988. The Petitioner then availed itself of its right to a formal proceeding, pursuant to Section 120.57(1), Florida Statutes, by filing a petition to challenge that denial.

The cause came on for formal hearing, as noticed, at which the Petitioner presented the testimony of Maxine R. Chentnik, Charlotte Chambers, Roland Grafentin, Richard Farrell, and Chester G. Chentnik. Petitioner also introduced

its Exhibits 1-11 into evidence. Respondent called no witnesses in its direct case, but submitted the deposition of Maxine R. Chentnik which was admitted into evidence as Respondent's Exhibit T. Additionally, the Respondent introduced into evidence Exhibits A, B and Exhibits D-S. After completion of the hearing, the parties ordered a transcript of the proceeding and filed proposed recommended orders containing proposed findings of fact and conclusions of law. Those proposed findings of fact are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, C & M Building Systems, Inc., was incorporated in Florida on October 15, 1975. The Petitioner at that time operated under the name of Homes Unlimited, Inc. and was primarily engaged in residential construction contracting. Since that time, the name has changed to the present name of the Petitioner corporation and since at least the mid-1980's the primary business of the corporation has been commercial construction contracting. The net worth of the Petitioner corporation is under a million dollars and 60 percent of its stock is owned by Maxine R. Chentnik, an American female. Forty percent of the stock is owned by her husband Chester G. Chentnik. Mr. Chentnik has over 33 years experience in the construction business as well as a doctorate degree in business administration. For some twelve years he taught business management courses at Florida State University. Mrs. Chentnik has a bachelor of science degree in education and attended business college for approximately one year. Additionally, she has taken approximately 15 hours of college level courses in the fields of interior design and architectural drafting.

   
   

2. Mrs. Chentnik's experience in the construction industry began when she and her husband built their own home in 1974. They served as their own contractors and Ms. Chentnik was most involved in that construction project since her husband worked full time at the university. This allowed her to gain experience in hiring and negotiating with subcontractors, arranging for payment of them, in ordering materials and supervising the construction of the home.

   She and her husband were in need of extra income and therefore she conceived the idea of starting their own residential construction business. When their Corporation, Homes Unlimited, Inc. formed, Mrs. Chentnik was unemployed and, since her husband was still employed at Florida State University, she devoted the majority of the time of the two owners and officers, to the operation of the business.

   
   

3. After building their own home, various friends and other customers began engaging them to do residential building projects. Thus, from 1974 until 1982, they built approximately 12 residences. Some of these were built for speculation purposes. Mrs. Chentnik did part of the initial design of the homes, obtained prices from subcontractors, exercised supervision at the job site as to the manner of construction and maintained the books and records of the business. Mrs. Chentnik has never held a contractor's license herself. All of these projects were built using Mr. Chentnik's license. He did the estimating of materials needed, material and labor costs involved and arrived at prices to charge the owner or customer. He had similar managerial duties to those of Mrs. Chentnik. The supervision of the home construction was a joint project because Mr. Chentnik had more technical construction knowledge than Mrs. Chentnik due to his years of experience in construction. He had many years of construction experience working with his father prior to obtaining his college education.

4. In 1982, Mr. Chentnik left his employment with Florida State University and engaged in the construction business full time. From 1983 to 1985, Homes Unlimited, Inc. was associated with Paragon Builders, a corporation which was owned by Mr. and Mrs. Chentnik and another couple. Paragon entered into a consultant agreement with Homes Unlimited by which Homes Unlimited was responsible for estimating material and labor needs, as well as job costs, for bidding purposes, and assembling, preparing and submitting bids. It was also charged with performing job site supervision of Paragon's construction projects. Mr. Chentnik performed under this consulting agreement for Homes Unlimited.

   Mrs. Chentnik was less active in the business operations at that time due to her child rearing duties. In 1985, the relationship between Homes Unlimited and Paragon Builders came to an end and Paragon Builders, Inc. was dissolved. Homes Unlimited had become primarily a commercial construction contracting company and as a result the name was changed to that of C & M Building Systems, Inc. in November, 1985.

   
   

5. The initial directors of Homes Unlimited and C & M Building System corporation were Chester G. Chentnik and Maxine R. Chentnik. The articles of incorporation provide that there should not be less than two directors. The articles also provide that the initial bylaws of the corporation must be adopted by the Board of Directors, and that the Board has the power to amend them. Article 3 Section 2 of the Bylaws at present, provides that the number of directors shall be two and that the affairs of the corporation shall be managed by the Board of Directors.

   
   

6. The Bylaws provide that the Board of Directors shall be elected by the shareholders at the annual meeting. Section 12 also provides for cumulative voting for election of the Board members, meaning that at each election of the Board, each shareholder shall have the right to vote the number of shares owned by him for as many persons as there are directors to be elected or he may accumulate his votes by giving one candidate as many votes as the number of directors to be elected, multiplied by the number of his shares, or by distributing those votes on the same principle among any number of candidates. The Bylaws provide that a majority of the directors constitutes a quorum for the transaction of business.

   
   

7. Article 4 Section 1 of the Bylaws provides for a president, vice president, a secretary, and treasurer. All must be elected by the Board of Directors. The president is the chief executive officer of the corporation, subject to control by the Board. The president may execute contracts or other documents which the Board authorizes, as can the secretary or other officers.

   
   

8. In January, 1986, the Board passed a resolution providing that estimates of the costs of work proposed to be done by the corporation are to be prepared by the president or secretary and that any proposal submitted by the corporation must be prepared, examined by and submitted to the president or secretary. It is also required that all orders for materials are to be given in writing by the president and secretary or by either of them acting with the consent of the other. No order is valid unless signed by the president or secretary. Contracts for the performance of work are valid only when signed by the president or vice president and by the treasurer or secretary.

   
   

9. In April, 1986, C & M, by resolution of its Board, entered into an agreement with CGC Company whereby CGC would thereafter provide "all bidding, on-site management, and "special administrative services" (subject to the ultimate management power being vested in C & M's Board of Directors). CGC is to be compensated for these services at the rate of $1,000 per month, plus a

   performance fee at the end of each fiscal year, as determined by C & M's Board of Directors, based upon C & M's profitability during the preceding fiscal year. Chester Chentnik is the president of CGC Company and performs the services involved in construction site management, preparation of bids and the like.

   
   

10. Mr. and Mrs. Chentnik have alternated at being president of C & M since its incorporation (under its original name) in 1975. Mr. Chentnik was first elected president and Mrs. Chentnik was elected vice president, as well as secretary- treasurer. Mr. Chentnik was president in 1976, 1978, 1980, 1982, 1984, 1986 and 1987. Mrs. Chentnik was president on alternate years beginning in 1977 and was president in 1988 and to the present. Mr. Chentnik explained that the alternating presidencies were intended to more evenly divide the workload involved in signing documents. Mr. Chentnik is currently the vice president and secretary-treasurer of the corporation. In 1986 and 1987, Mrs. Chentnik was employed with a real estate firm and Mr. Chentnik primarily ran C & M operations by himself.

    
    

11. The Petitioner is currently working on construction projects involving the Florida A & M University President's residence, the Department of Transportation building; the computer room in the Carlton Building, a bus washing facility for the Leon County School Board, as well as a renovation project for the Florida Bar. Those projects are being performed under Mr. Chentnik's license. Mr. Richard Farrell was employed with C & M as a building superintendent and placed his contractor's license with C & M. His license was not used for any contracts presently being performed by C & M, however. Mr. Farrell is no longer an employee and is not performing work for C & M. Mr. Farrell now manages a related mill-work manufacturing company owned by the Chentniks, but is not performing any construction work or supervision for C & M. The decision to hire Mr. Farrell was a joint one by both Mr. and Mrs. Chentnik. His direct supervisor was Mr. Chentnik, although both Mr. and Mrs. Chentnik had supervisory authority over him.

    
    

12. In any event, Mr. Chentnik's license is now the license qualifying the company as a construction contractor for purposes of Chapter 489, Florida Statutes, and the authority of the Construction Industry Licensing Board. Mr. Chentnik does the estimating for the company, prepares bids for jobs, is responsible for supervision of the construction details of the business, as well as for construction site management. On those bidding situations when he does not prepare the entire bid, he generally prepares the cost estimate portion of it and the remainder of the bid, concerning the addition of "overhead", and profit increments, are prepared jointly with Mrs. Chentnik. He also deals with the architects, engineers, and subcontractors, especially at the job site, and, since Mr. Farrell's departure, has taken over his job site supervision responsibilities.

    
    

13. Mr. Chentnik has signed contracts for the company, executed change orders, pay requests, contract amendments, purchase orders and has prepared and submitted bids on behalf of the corporation. Mr. Chentnik signed the Department of Transportation contract in June, 1988 and an amendment to that contract in December of 1988. He also signed signed certain change orders to the Florida Bar contract in both September and November, 1988. The Carlton Building computer room bid was signed by Mr. Chentnik in September, 1988, as well as a change order for the Florida A & M University project which he signed in November, 1988.

    
    

14. Mrs. Chentnik does not hold a contractor's license herself. She does all the bookkeeping for the company, pays the bills, and deals with the banks;

    in terms of checking and savings account deposits, withdrawals, as well as arranging credit. She has signed certain notes and lines of credit herself. She orders supplies and takes care of the insurance needs of the business and monitors which construction projects are coming up for bid, and obtains plans for them for the company to consider. She also contacts subcontractors for prices, attends bid openings, and arranges for bonding for the company for the jobs it undertakes. She assists in preparation of bids, especially the supplying of figures for overhead and profit on bids the company submits. She shares in the supervision of employees with her husband and directly supervises one employee, a part-time clerical helper.

    
    

15. The company secures a great deal of its business by competitive bidding. Cost estimating is an important part of the bidding process. This estimating is performed primarily by Mr. Chentnik. Mr. Chentnik also developed the computer program to assist the company in its bidding efforts. The bidding program contains a range of percentages of overhead and profit which the company can add to the cost estimates on its bid to arrive at its most advantageous bid price. Mrs. Chentnik typically chooses a percentage for overhead and profit from the ranges set by the computer program. Mrs. Chentnik does not prepare entire estimates or bids herself. In all nearly cases her husband has assisted her. Mrs. Chentnik did prepare an entire bid for a flagpole project, valued at approximately $3500.

    
    

16. In essence then, the decisions concerning which projects the company bids and which it declines to bid on have been joint decisions of Mr. and Mrs. Chentnik. They have usually jointly prepared bids, with Mr. Chentnik doing the greater part of that effort in providing the cost estimates. Both of them have historically negotiated prices with subcontractors in order to obtain figures for costs for a given project, in the course of preparation of a bid, however.

    
    

17. The company has a checking account, a money market account and holds certificates of deposit. Both the Chentniks have equal drawing rights on all the accounts. The decision as to what amount of money to be placed in certificates of deposit is usually a joint decision. Both Mr. and Mrs. Chentnik have previously signed as personal guarantors on debt instruments for the company. Although Mrs. Chentnik does most of the banking business on behalf of the company, neither Mr. nor Mrs. Chentnik has sole control or authority over the bank accounts and the banking relationships of the corporation.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

19. There is no dispute that the Petitioner is a "small business concern" as defined in Section 288.703(1), Florida Statutes and is organized to engage in commercial transactions, domiciled in Florida and at least fifty-one percent owned by minority persons. There is no dispute that Maxine Chentnik is a "minority person" as defined by Section 288.703(3)F, Florida Statutes and that she owns at least 51% of the Petitioner's stock. The sole issue concerning whether the Petitioner qualifies as a "minority business enterprise" is that portion of the definition section of Section 288.703, Florida Statutes which defines such an enterprise as one "whose management and daily operations are controlled by such persons. . . ." "Such person" means minority persons. Thus it must be determined whether Maxine R. Chentnik controls the management and daily operations of the Petitioner corporation.

20. Certain standards have been enacted in Rule 13.8005(3), Florida Administrative Code, which are the criteria to be used in determining whether a minority member has such control of the business. This rule provides in pertinent part as follows:

    
    

    * * *

    3. An applicant must establish the minority owner's control over the management and daily operations of the business. The Department will consider the following factors:

    1. Whether the minority ownership has control over the purchase of goods, equipment, business inventory and services needed in the day to day operation of the business.

    2. Whether the minority owners have the authority to hire and fire employees.

    3. Whether the minority owners have the knowledge of the financial structure of the business and control over all financial affairs.

    4. Whether the minority owners control business accounts-checking, savings, and other financial affairs.

    5. Whether the minority owners have the capability, knowledge, and experience required to make decisions regarding

       that particular type of work.

    6. Whether the minority owners have displayed independence and initiative seeking and negotiating contracts, accepting and rejecting bids and conducting all major aspects of the business.

    * * *

    
    

21. The recommended order in Barton S. Amey Company, Inc. v. Department of General Services, DOAH Case No. 86-3954, DGS Final Order, April 21, 1987, incorporated by reference in the Final Order of the agency, provided that, in order to determine the above stated issue, a minority person must be determined to have control over the purchase of goods, equipment, business inventory and services; control over the financial affairs and accounts of the business, as well as the authority to hire and fire. The term "control" has been defined in Webster's New Twentieth Century Dictionary, Unabridged 1980 Edition, to mean "the power or right to command, act, enforce obedience, or make final decisions; jurisdiction."

    
    

22. In light of this definition, the criteria contained at paragraphs (a) and (d) in the above-quoted rule will first be examined to determine whether Mrs. Chestnik "exercises authority over", "directs", and "commands" the activities involved in the purchase of goods, equipment, business inventory and services and the management of the Petitioner's financial affairs, including checking, savings, and other accounts. The Barton S. Amey decision, supra, as well as the case of Bonnie M. Mobley and Council Enterprises, Inc. v. Department of General Services, DOAH Case No. 88-2436 (Recommended Order entered March 9, 1989) are instructive. Both those cases involve applications by female minority

    members for certification of their firms as MBEs. In those cases, as in the instant one, the businesses were family- owned and only two family members sat on the Board of Directors. In both cases, as in this one, the Bylaws of the corporation required that both board members be present to constitute a quorum for decisions and that both had the authority to manage and carry on the business. In the Amey and Mobley decisions, it was determined by the Department that the actions of the minority person involved, (the majority stockholder in those cases as is Mrs. Chentnik in this case) could be legally impeded without the consent of the other board member. This was true even if the non-minority person had not actually challenged the female board member's decision and, up to the point in question, had acquiesced in all her decisions. It was simply a case of the minority member of the Board of Directors being unable to act without the consent of the other board member because of the makeup of the Board of Directors and quorum requirement. If this reasoning is applied to the facts of this case it cannot be concluded that Mrs. Chentnik exercises the legal control necessary to satisfy Rule 13-8.005(3)(a) and (d). Here Mr. and Mrs.

    Chentnik are the only directors in the Petitioner corporation. The Bylaws, of course, indicate that the affairs of the corporation shall be managed by the Board of Directors and both board members have taken an active role in the management of the company. Thus for example, the Board authorized the contract with the present accounting firm and is the ultimate managing authority concerning the operation of the contract between CGC Company (the consulting firm) and the Petitioner, for bid preparation, bid submittal, construction job management and other administrative services. The Board determines the performance fee to be paid to Mr. Chentnik's CGC Company. Because there are only two directors they must necessarily agree on the exercise of any powers given to the Board by the Bylaws, neither director has the power or authority to exercise corporate control in a manner that could not be impeded or opposed by the other director. Thus, neither director, including the minority owner, has the present legal power or authority to control the exercise of the corporate powers of the Petitioner. See Central Florida Metal Fabrication, Inc. v.

    Department of General Services, DOAH Case No. 88-3138, (Final Order entered on February 16, 1989).

    
    

23. Although Mrs. Chentnik is currently the President of the corporation, Mr. and Mrs. Chentnik have essentially equally divided their tenure as President of the corporation by alternating annual terms in that office between them since the inception of the corporation. The bylaws provide that the president, the secretary, or other officer of the corporation may sign certificates or shares of the corporation, deeds, mortgages, bonds, contracts and other instruments which the Board of Directors authorizes the officers to execute. By board resolution, the president or the secretary has been authorized to estimate the cost of work for propositions or bids submitted by the corporation. The resolution provides that no proposition shall be submitted by the corporation until the estimate has been prepared and checked by, or submitted to, the president or the secretary. Additionally, by board resolution, it is provided that all orders of materials are to be given in writing by the President and the secretary or by either of them acting with the consent of the other. No order is valid unless signed by the President or the secretary of the corporation.

    The board has provided that all contracts for the performance of work are valid and binding on the corporation only when signed by the President or Vice President, and by the secretary or the treasurer. In the instant situation, only two people occupy all these offices. The president is Mrs. Chentnik and the vice president, the secretary and treasurer are all Mr. Chentnik. Thus, the Board of Directors has limited the powers of the president. Since Mr. Chentnik occupies all three other offices, it appears that the Board of Directors has in effect given him equal power with the president, to prepare and submit proposals

    or bids and joint control over the ordering of materials, arrangements with subcontractors and the like, and the execution of contracts. Additionally the vast majority of the construction supervision itself is done by Mr. Chentnik, by operation of the contract with his consulting company, subject to the ultimate authority of the Petitioner's board of which he is one of the two members.

    
    

24. In order for the corporation to engage in the contracting business, it must have a "qualifying agent" as defined in Section 489.119, Florida Statutes. That is, a licensed contractor must have his license placed under the auspices of the corporation in order for it to be able to engage in the contracting business. Mrs. Chentnik is not a licensed contractor and thus is not the "qualifying agent". Her husband is the qualifying agent as a result of his licensure pursuant to chapter 489, Florida Statutes and the association of that license with the corporate operations in accordance with that chapter. "Qualifying agent" has been defined in Section 489.105(4), Florida Statutes as being a person who possesses the requisite skill, knowledge, experience and responsibility to supervise, direct, and manage contracting activities of the business entity with which he is connected. The evidence shows that Mr. Chentnik has such supervisory authority to direct, manage and control the construction business activities of the Petitioner.

    
    

25. Mrs. Chentnik asserts that she makes the final decision on hiring and firing employees. The evidence, however, shows that those decisions have been essentially joint decisions made by her and her husband. It has been established that Mr. and Mrs. Chentnik made the joint decision to hire the building superintendent, Mr. Farrell, as well as the accountant and the accounting firm hired pursuant to a resolution of the Board of Directors. The checking account is a joint account and both Mr. and Mrs. Chentnik have authority to draw funds therefrom and the same holds true of the money market account and the certificates of deposit. When surplus funds are possessed by the corporation, joint decisions are made as to what amount should be placed in certificate of deposit accounts. In short, it has been demonstrated that although she has authority to use, deposit and withdraw from business accounts, it has not been shown that Mrs. Chentnik solely controls the various business accounts. See Central Florida Metal Fabrication v. Department of General Services, Supra.

    
    

26. Concerning paragraph (c) of the above-quoted rule, the evidence reflects that Mrs. Chentnik, has a thorough knowledge of the financial structure and operation of the business, but it has not been demonstrated that she actually exercises "control" over all financial affairs, as that term is defined above. The control of the financial affairs of this corporation is really a joint effort by the Chentniks as officers and directors of the corporation.

    
    

27. It has also been demonstrated, for purposes of paragraph (e), quoted above, that Mrs. Chentnik does have, to a substantial degree, capability, knowledge and experience in running a construction company; especially with regard to residential construction. It has not been demonstrated, however, that she has sufficient capability, knowledge and experience to make many of the decisions regarding the particular type of construction work which the corporation engages in. She does have some experience in interior decoration, real estate marketing and architectural drafting and through "on-the-job training", has learned to deal with subcontractors and employees, lending institutions, architects and project owners upon whose projects she and her husband seek to bid. The fact remains, however, that Mr. Chentnik possesses 33 years of construction business experience and many of the decisions regarding

    the Petitioner's construction work turn at least equally, and sometimes in major part, on his knowledge and experience. This is particularly the case in the areas of job site construction management and the preparation of cost estimates, the key portion of any bid proposals submitted by the corporation. Thus, although Mrs. Chentnik has a great deal of capability, knowledge and experience required to make important decisions concerning the company's operation, it has not been shown that she has sufficient knowledge in her own right to make all the necessary decisions. Rather, they often must be joint decisions made with the assistance of Mr. Chentnik and his capabilities.

    
    

28. Concerning paragraph (f) quoted above, the evidence does not demonstrate that Mrs. Chentnik has displayed a sufficient level of independence and initiative in seeking and negotiating contracts, accepting and rejecting bids and in conducting all major aspects of the business. This is not because Mrs. Chentnik is not capable of considerable independence and initiative in conducting the affairs of the Petitioner. Rather it is because, in making many or most of the decisions involved in bidding and in negotiating contracts, based, in part, on review of construction plans, and consultation with potential subcontractors, the assistance of Mr. Chentnik is required. Most of these decisions must be joint decisions because of his knowledge of the construction business and operations involved.

    
    

29. Both Mr. and Mrs. Chentnik are involved in contract negotiations and in negotiation of later change orders. Aside from one small project, Mrs. Chentnik has never estimated or prepared a complete bid without Mr. Chentnik's assistance. Decisions on which projects to bid have more often than not been joint decisions, as have the decisions on projects on which the company declined to submit bid proposals. Mrs. Chentnik's ability to supervise the technical details of construction on the job site is also limited essentially to basic residential construction jobs.

    
    

30. While it is true that Mrs. Chentnik is the majority stock owner, and because of that status could easily convene a shareholder's meeting and make the necessary changes to the bylaws, so that the composition of the Board could be changed to cure the above mentioned legal impediments to her MBE status, that step has not been taken. Thus, the authority to direct and control the management and daily operations of the Petitioner has not been shown to be legally constituted in the minority member owner, Mrs. Chentnik. The above- cited statute and rule do not contemplate the granting of an application for minority business enterprise status conditioned upon future corporate structure and bylaw changes, even though those changes could in all probability be accomplished, given the majority stock ownership of the minority owner. That being the case, it would seem that this rather technical non-compliance with the above-cited rule concerning control of the management and daily operations of the corporation is sufficient to deny the application. See Pinellas Park Cab Company, Inc. v. Department of General Services, DOAH Case number 88-5638, (Recommended Order filed March 28, 1989). Parenthetically, it is noted that the Petitioner has doubtless expended a considerable amount of time, money and effort in prosecuting this application. Had the agency informed the Petitioner early in this process of the cited precedent and policy basis for its interpretation of the subject statute and rule, the Petitioner could have easily effected the necessary corporate structure changes. Unfortunately, however, the other indices of control of the management and daily operations of the Petitioner which relate to the joint character of the majority of operational decisions, including decisions concerning financial affairs, and the necessity of Mr. Chentnik's capability, knowledge and experience to the company's operations, preclude a finding that Maxine R. Chentnik herself controls the

management and daily operations of the Petitioner sufficiently to warrant a grant of the application.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED:

That a Final Order be entered denying the request for certification as a minority business enterprise of C & M Building Systems, Inc.

DONE and ENTERED this 5th day of September, 1989, at Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2758

Petitioner's Proposed Findings of Fact

(The rulings below relate, by number, sequentially, to the unnumbered paragraphs of the Petitioner's proposed findings of fact)

1. Accepted

2. Accepted

3. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.

4. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely comporting with the preponderant weight of the evidence.

5. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.

6. Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and not, in itself, dispositive of material issues presented.

Respondent's Proposed Findings of Fact 1-15. Accepted

1. Rejected as unnecessary and not dispositive of material

   issues.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.

9. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.

25-29. Accepted.

COPIES FURNISHED:

James O. Shelfer, Esquire Gardner, Shelfer & Duggar 1300 Thomaswood Drive

Tallahassee, Florida 32312

Susan B. Kirkland General Counsel

Department of General Services Room 452, Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0955

Ronald W. Thomas Executive Director

Department of General Services Knight Building

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

Docket for Case No: 88-002758

Orders for Case No: 88-002758