STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. YOUNG & ASSOCIATES, INC., )

   )

   Petitioner, )

   )

   vs. )

   ) CASE NO. 95-0022 STATE OF FLORIDA, COMMISSION ON )

   MINORITY, ECONOMIC AND BUSINESS ) DEVELOPMENT )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to written notice, a formal hearing was held in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 25, 1995, in Orlando, Florida. Petitioner, Petitioner's counsel, and Petitioner's witnesses attended the formal hearing in Orlando. Respondent's counsel, Respondent's witnesses, and the undersigned participated in the formal hearing by video conference from Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Frank P. Nisi, Jr., Esquire

   205 East Central Boulevard, Suite 304 Orlando, Florida 32801

   
   

   For Respondent: George L. Wass, Esquire

   Assistant Attorney General Department of Legal Affairs PL-01, The Capitol

   Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

   The issue for determination in this proceeding is whether Petitioner should be certified as a minority business enterprise by the Commission On Minority Economic And Business Development.

   
   

   PRELIMINARY STATEMENT

   
   

   Respondent denied Petitioner's application for certification as a minority business enterprise by letter dated December 7, 1994. Petitioner timely requested a formal hearing.

   
   

   At the formal hearing, Petitioner presented the testimony of two witnesses and submitted no exhibits for admission in evidence. Respondent presented the testimony of one witness and submitted one exhibit for admission in evidence.

   The identity of the witnesses and exhibits and rulings regarding each are described in the transcript of the formal hearing filed on June 12, 1995.

   Petitioner timely filed its proposed recommended order ("PRO") on July 3, 1995. Respondent timely filed its PRO on June 21, 1995.

   
   

   Petitioner's proposed findings of fact are accepted in this Recommended Order. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent is the governmental agency responsible for certifying persons as minority business enterprises. Petitioner applied for certification as a minority business enterprise.

      
      

   2. Petitioner is a minority business enterprise within the meaning of Section 288.703(2), Florida Statutes. 1/ Petitioner is a small business concern, domiciled in Florida, and organized to engage in commercial transactions.

      
      

   3. Petitioner is a Florida corporation wholly owned by Ms. Sandra A. Pichney, vice president, and by Mr. D.B. Young, president. Petitioner engages in the roof consulting business.

      
      

   4. Ms. Pichney owns 51 percent of Petitioner's outstanding stock. Ms. Pichney is a member of a minority group for purposes of Chapter 288.

      
      

   5. The remaining 49 percent of Petitioner's outstanding stock is owned by Mr. Young. Mr. Young is a licensed architect.

      
      

   6. No professional license is required for Petitioner to engage in the business of roof consulting. Petitioner has all of the occupational licenses required to engage in the commercial transactions required to conduct its business. Ms. Pichney has 16 years experience in the roof consulting business.

      
      

   7. Ms. Pichney controls the daily management and operations of Petitioner's business. Ms. Pichney: manages and operates the office; and is responsible for payroll, accounts receivable, and general financial matters. Ms. Pichney conducts field visits, estimates jobs, reviews projects, and rewrites specifications.

      
      

   8. Ms. Pichney is the person who signs checks for Petitioner in the ordinary course of Petitioner's trade or business. Mr. Young is authorized to sign checks but only signs checks in emergencies.

      
      

   9. Ms. Pichney hires and fires personnel. Ms. Pichney consults with Mr. Young, but the ultimate responsibility is born by Ms. Pichney.

      
      

   10. Ms. Pichney reviews specifications and design work for specific projects and makes amendments where appropriate. Original specifications and design work are prepared by Mr. Young and other personnel.

       
       

   11. Mr. Young, and other personnel, can be terminated by Ms. Pichney without cause. Mr. Young can be terminated as an employee at any time by Ms. Pichney, without cause. Mr. Young has no employment agreement or shareholder agreement with the company.

   12. The board of directors are comprised of Ms. Pichney and Mr. Young. Any director may be dismissed by a majority of the shareholders. As the majority shareholder, Ms. Pichney can terminate Mr. Young, as a director, without cause.

       
       

   13. Ms. Pichney and Mr. Young receive salaries and monthly draws. Although salaries are equal, monthly draws and dividends are distributed in proportion to the stock ownership of each shareholder. Ms. Pichney has exclusive use of the company car.

       
       

   14. Ms. Pichney's stock ownership has increased over the last two years because Mr. Young has been unable to attend to the demands of Petitioner's business due to Mr. Young's divorce. Ms. Pichney has properly reported the increase in stock ownership, for purposes of the federal income tax, and has, and will, pay the requisite income tax on her increased stock ownership.

       
       

   15. Ms. Pichney and Mr. Young consult with each other in making significant decisions in the ordinary course of Petitioner's business. However, the ultimate responsibility for those decisions is born by Ms. Pichney.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

       
       

   17. Petitioner has the burden of proof in this proceeding. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue unless the burden is otherwise specifically established. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d

       349 (Fla. 1st DCA 1977). Petitioner must show by a preponderance of the evidence that it is entitled to be certified as a minority business enterprise.

       
       

   18. Petitioner satisfied its burden of proof. Petitioner showed by a preponderance of evidence that it is a small business enterprise within the meaning of Section 288.703 and Florida Administrative Code Rules 60A-2.001, 2.003, and 2.005

       
       

   19. Petitioner is a small business concern organized to engage in commercial transactions including roof consulting. Petitioner is domiciled in Florida. Petitioner is at least 51

       percent owned by a minority person. The minority person controls the ownership, management, and daily operations of Petitioner's business.

       
       

   20. The minority person shares in Petitioner's business risk in a manner that is commensurate with her percentage of stock ownership and her capital contributions. The minority owner's contribution and risk in Petitioner's business is real and substantial. The minority owner has the requisite control and independence over all phases of Petitioner's business.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order granting Petitioner's application for certification as a minority business enterprise.

RECOMMENDED this 22nd day of July, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 July, 1995.

ENDNOTE

1/ All chapter and section references are to Florida Statutes (1993) unless otherwise stated.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0022

Petitioner's Proposed Findings Of Fact.

Petitioner's proposed findings of fact are accepted in this Recommended Order.

Respondents' Proposed Findings Of Fact.

1. Accepted in substance

2. Accepted in substance except that the characterization that Ms. Pichney obtained additional stock solely to establish majority status is rejected as not supported by credible and persuasive evidence

3. Accepted in substance

4. Rejected as irrelevant and immaterial 5.-14. Accepted in substance

15.-16. Rejected as irrelevant and immaterial

COPIES FURNISHED:

Crandall Jones Executive Administrator

Commission On Minority Economic & Business Development

Knight Building

2727 Centerview Drive

Tallahassee, Florida 32399-0950

Office Of The General Counsel Commission On Minority Economic &

Business Development Knight Building

2727 Centerview Drive

Tallahassee, Florida 32399-0950

Frank P. Nisi, Jr., Esquire

205 East Central Boulevard, Suite 304 Orlando, Florida 32801

George L. Wass, Esquire Assistant Attorney General Department of Legal Affairs PL-01, The Capitol

Tallahassee, Florida 32399-1050

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: 95-000022

Orders for Case No: 95-000022