STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA PYLE d/b/a AUTOMENDERS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5093

) STATE OF FLORIDA, DEPARTMENT ) OF MANAGEMENT SERVICES, ) COMMISSION ON MINORITY ECONOMIC ) AND BUSINESS DEVELOPMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing by video technology in the above-styled case on February 17, 1995, in Tallahassee and Jacksonville, Florida.

APPEARANCES

For Petitioner: Patricia Pyle, pro se

5655 West Beaver Street Jacksonville, Florida 32254

For Respondent: Ana Cristina Martinez

Assistant Attorney General The Capitol, Suite PL01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue to be considered in this matter is whether Petitioner meets the requisite qualifications for certification as a minority business enterprise (MBE).

PRELIMINARY STATEMENT

By letter dated August 15, 1994, Respondent advised Petitioner of the denial of Petitioner's application for certification as an MBE.

By letter dated September 1, 1994, Petitioner requested formal administrative proceedings to challenge Respondent's denial decision. Subsequently, the matter was transferred to the Division of Administrative Hearings for the conduct of such proceedings.

At the final hearing, Petitioner presented the testimony of four witnesses, including herself. Respondent presented testimony of two witnesses and two exhibits.

No transcript of the final hearing was provided. Both parties submitted proposed findings of fact following the final hearing. Those proposed findings are addressed in the appendix attached to this recommended order.

FINDINGS OF FACT

1. Patricia Pyle is the sole owner and proprietor of Automenders, located at 5655 Beaver Street in Jacksonville, Florida.

   
   

2. A paint and body shop, Automenders was opened in 1991 by Petitioner. In addition to paint work, Automenders repairs car frames, does rust repair to car bodies, repairs dents in automobiles, and installs headliners and vinyl tops.

   
   

3. George Pyle, Petitioner's husband, has 30 years of experience in the automobile repair industry. He owns 50 percent of the land on which the business is located. He receives no rent from the business for use of his interest in the property. Mr. Pyle also does 50 percent of the estimates for work to be done in the shop, and works there approximately 30 to 50 hours per week. He is not paid for any of his efforts by Automenders since he presently draws social security. He does, however, share in the profits of the business.

   
   

4. Petitioner and her husband previously operated a paint and body shop business at the same location from 1970 until 1986 when the couple decided to sell the business and retire. In that business, Petitioner was in charge of hiring, firing, keeping the books, doing the payroll and other administrative aspects of the business.

   
   

5. The sale of the business in 1986 included the property, the paint and body shop, and an adjacent car lot. The purchasers of the business were unsuccessful in their business endeavors and, in 1991, Petitioner regained control of the property after the purchasers defaulted on their payments.

   
   

6. Petitioner provided the start up costs and reopened the present business. There is little difference between Petitioner's present duties and her duties with the business which she and her husband sold. Petitioner is still in charge of administrative aspects of the enterprise.

   
   

7. Listed on Automenders' bank account signature card are the names of Petitioner, her husband, and their daughter. Only one signature is required to transact business on the account. Additionally, Petitioner's husband is listed on Automenders' checks, along with Petitioner.

   
   

8. Petitioner does not do actual body repair and painting of vehicles herself. While she did occasionally perform some technical tasks in the previous business such as taping and paint mixing, she has no other technical experience and has never received technical training in automobile body repair or painting. Even though she does not know how to run a frame straightening machine or paint cars, Petitioner maintains that she hires qualified employees and relies upon them for the technical aspects of her business.

   
   

9. Petitioner's employees, Robert Yonnetti and Jason Sikes, are experienced. Yonnetti has 20 years of experience in the automobile body repair industry and has received training in repair as well as use of frame machines. Sikes has over nine years experience in automobile painting and has received training in automobile painting.

10. Petitioner graduated from high school and attended Montgomery College where she took courses in bookkeeping, accounting and management. Petitioner has failed to provide documentation of training or possession of an expertise in automobile body repair work and painting. Consequently, Petitioner has not demonstrated the technical knowledge and capability necessary to maintain control of the technical aspects of the enterprise.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

12. The burden of proof is upon Petitioner to show entitlement to the certification which she seeks. Fla. DOT v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA, 1981).

    
    

13. Rule 60A-2.002(3)(d)4., Florida Administrative Code, provides in pertinent part:

    
    

    . . . The minority owners shall have managerial and technical capability, knowledge, training, education and experience required to make decisions regarding the particular type of work.

    In determining the applicant business' eligibility, the Department will review prior employment and educational backgrounds of the minority owners,

    the professional skills, training and/or licenses required for the given industry, the previous and existing managerial relationship between and among all owners, especially those who are family related, and the time and purpose of management changes. If the minority owners have delegated management and technical responsibilities to others, the minority owners must substantiate that they have caused the direction of the management of business and each phase of the technical operations of the business through their demonstrable knowledge of and capability in the delegated areas. (emphasis added).

    
    

14. Further, Minority owners "shall demonstrate that they have the knowledge and expertise to independently make contractual decisions" in seeking and negotiating contracts with regard to major aspects of the business to be certified. Rule 60A-2.005(3)(d)5., Florida Administrative Code.

    
    

15. Petitioner does not have the technical capabilities, knowledge, training, education or experience to make decisions regarding technical matters of the business. That technical expertise lies with the non-minority employees and her husband. Petitioner's dependence upon others for estimating, painting and body repair denies her eligibility for MBE certification.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Automenders application for certification as an MBE.

DONE and ENTERED in Tallahassee, Florida, this 22nd day of March, 1995.

DON W. DAVIS

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 22nd day of March, 1995.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

Petitioner's Proposed Findings

Petitioner submitted a four page letter containing 10 unnumbered paragraphs. The letter has been reviewed and to the extent possible addressed by the foregoing findings of fact.

Respondent's Proposed Findings

1.-20. Accepted, but not verbatim.

COPIES FURNISHED:

Patricia Pyle

5655 West Beaver Street Jacksonville, FL 32254

Ana Cristina Martinez Assistant Attorney General The Capitol - Suite PL - 01 Tallahassee, FL 32399-1050

Crandall Jones Executive Administrator Knight Building

2727 Centerview Drive

Tallahassee, FL 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-005093

Orders for Case No: 94-005093