STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TRANSPORT ANALYSIS PROFESSIONALS, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 84-0453
)
DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case in Miami, Florida, on May 18, 1984, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:
APPEARANCES
For Petitioner: James T. Armstrong, Esquire
7700 North Kendall Drive, Suite 503
Miami, Florida 33156
For Respondent: Linda Gurfein Miklowitz, Esquire
Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301
At the hearing one joint composite exhibit was offered and received in evidence. The Petitioner offered four exhibits, all of which were received in evidence, and also presented the testimony of the following witnesses: Douglas Campion, Kenneth Bynum, David Rhinard, Carol Rhinard, and Gloria Campion. The Respondent offered five exhibits, all of which were received in evidence, and also presented the testimony of the following witnesses: Thaddeus Fortune and Frank J. DeLuca.
Following the hearing, both parties filed proposed findings of fact and conclusions of law. To the extent that I have not made findings proposed by the parties it is because the proposed findings are irrelevant or not supported by the evidence, as explained in greater detail below. Similarly, my reasons of differing from the parties' proposed conclusions of law are obvious from the explication which follows.
ISSUE
The issue in this case is whether the Petitioner, Transport Analysis Professionals, Inc. (hereinafter sometimes referred to as "TAP"), is eligible for certification as a Minority Business Enterprise. TAP contends that its application for such certification should be granted, asserting that it is in compliance with all lawful requirements for such certification. The Department of Transportation contends that the application should be denied on the grounds that the women owners of TAP do not exercise actual control of the affairs of the company.
FINDINGS OF FACT
Based on the relevant testimony of the witnesses and on the relevant exhibits admitted into evidence, I make the following findings of fact. 1/
Introduction
Transport Analysis Professionals, Inc., is a Florida corporation which was incorporated on September 1, 1983. The moving forces behind TAP are three married couples; Mary J. and Kenneth J. Bynum, Gloria J. and Douglas R. Campion, and Carol L. and David C. Rhinard. All of the 990 authorized shares of stock of TAP have been issued to these three couples and each couple is the holder of 330 shares of TAP stock. The Board of Directors of TAP is composed of six directors who are now, and always have been, the six individuals who make up the three married couples described above. Each of these six individuals is a "founding principal" of TAP.
Although TAP will embark upon just about any type of business project its principals feel it has the qualifications to perform, the primary nature of its business, as described in its application form is: "engineering consulting services, including traffic and transportation planning and design, environmental analysis, roadway and mass transit operational analysis and contract administration services." (T.25-27; JNT.EX. 1) Because TAP is a new company, up to this point the majority of its activity has been the preparation of proposals and various marketing activities. In other words, TAP's principal activity has been trying to find work rather than actually doing the type of work for which the company was created. (T.84)
The "credentials" of the male principals of TAP
Douglas R. Campion has a Master of Science degree in Transportation Planning and Engineering and a Bachelor of Science degree in Civil Engineering, both from the Polytechnic Institute of Brooklyn. He also has certificates from the Highway and Transportation Management Institute, University of Mississippi, and the American Association of State Highway and Transportation Officials. (JNT.Ex. 1, resume)
Douglas R. Campion has over sixteen years of progressively responsible and successful executive management, administration, engineering and planning experience in the public sector and private industry. He was formerly the
appointed Regional Administrator (six and one-half years) for the Federal Urban Mass Transportation Administration (UMTA). He managed the design, contracting, and engineering services for construction on a new $960 million urban rapid rail system. He has extensive background in mass transit, transportation systems planning, traffic engineering, economic/financial analysis, and procurement management. (JNT.EX. 1, resume)
Kenneth J. Bynum has a Bachelor of Science degree in Civil Engineering from the University of Arkansas and has done post graduate work towards a Master of Science degree in Civil Engineering at West Virginia University. He is currently enrolled in a Master of Business Administration program at Florida International University. He has completed continuing education courses on traffic operations and design at the University of Florida and Georgia Institute of Technology and on area and indoor lighting by the Lighting Systems Institute of the General Electric Company. He is registered as a professional engineer in the States of Florida and Michigan. (JNT.EX. 1, resume)
Kenneth J. Bynum has over sixteen years of professional experience in progressively more responsible charge of planning, design, implementation, and maintenance of public and private transportation systems, with particular emphasis in roadways, mass transit, traffic operations, and traffic control devices. He has been practicing his profession since 1972 in Florida, working in the public sector and with private consultants. (JNT.EX. 1, resume)
David C. Rhinard has a Master of Science degree in Transportation from Purdue University and a Bachelor of Science degree in Civil Engineering from Pennsylvania State University. Since graduation he has participated in numerous technical, management, and professional development seminars and non-credit courses nationwide and abroad, including Certificates in: Highway Engineering and Administration, Advanced Technical Topics in Urban Transportation, Effective Speaking and Human Relations, U.S. Department of Transportation Highway Engineering, Highway Finance, and Professional Program in Urban Transportation (by Carnegie-Mellon University with on-site investigation of urban transportation systems in selected American, Canadian, and European cities). He is registered as a professional engineer in the State of Florida and Michigan. (JNT.EX. 1, resume)
David C. Rhinard has been continuously involved in transportation engineering for over fifteen years and has been in responsible charge of numerous public and private sector transportation projects and programs in South Florida for the last thirteen years. His experience ranges from traffic and transit system planning to financing, preliminary engineering, construction, traffic operations and parking. (JNT.Ex. 1, resume)
The "credentials" of the female principals of TAP
Gloria J. Campion has a Master of Science degree in Mathematics from Montclair State College and a Bachelor's degree in Mathematics and Business from the same college. She has obtained certificates in Computer Literacy from the Florida International University and in Adult Education Teaching Strategies from the University of Georgia. She has participated in special studies in mathematics and statistics at Chicago Circle Campus, University of Illinois. (JNT.EX. 1, resume)
Gloria J. Campion has over thirteen years of experience as a teacher of mathematics and computers and as an educational consultant in the field of mathematics. (JNT.Ex. 1, resume)
Carol L. Rhinard has a Bachelor of Science degree in Education from Bloomsburg University of Pennsylvania. She has taken courses in mathematics, statistics, and sampling theory at the University of Miami. (JNT.EX. 1, resume) 2/
Carol L. Rhinard has taught high school off and on over the past seventeen years. (JNT.Ex. 1, resume; T. 33)
Mary J. Bynum has attended Miami Dade Junior College, but has not earned any academic degrees. (JNT.Ex. 1, resume)
Mary J. Bynum has eighteen years experience as an airline stewardess and as an airline stewardess supervisor, or lead flight attendant. (JNT.EX. 1; T. 22)
The "blood, sweat, and tears" contributed to TAP by the male principals
All three of the male principals of TAP gave up professional positions in the fields of traffic and engineering consulting in order to devote their full-time efforts towards trying to start a new company of their own. All three of the male principals of TAP work full-time for TAP. None of them receive a salary from TAP. Two of them (Messrs. Rhinard and Bynum) have no other regular employment. In order to have at least some income, Mr. Campion also works nights as a hotel manager. (JNT.EX. 1, T. 13, 17, 42)
The "blood, sweat, and tears" contributed to TAP by the female principals
All three of the female principals of TAP have other full-time or substantially full-time employment. Of the three, Gloria R. Campion does substantially more for TAP than either of the other two. Gloria Campion devotes about thirty hours per week to work for TAP. She spends about an equal amount of time as a teacher at a private school. (T. 69, 102-104)
Carol Rhinard started out working full-time for TAP, but that did not last very long. She now teaches school full-time and devotes, at most, about eight hours per week to work for TAP. Of those eight hours per week, often only two of them are hours actually spent at the TAP office. (T. 40-41) 3/
Mary Bynum is employed full-time as an airline stewardess or lead flight attendant. Her work for TAP is probably about the same as or less than that of Carol Rhinard. 4/
Capital contributions to TAP--Who paid how much for what
There is no credible, competent, substantial evidence in this record upon which to make a finding as to how TAP was capitalized. The various shortcomings in the evidence on this subject are discussed at length in the comments at the conclusion of these findings of fact. 5/
How things really get decided and done at TAP
The individuals who possess the power to direct or cause the direction of the management and policies of TAP in the areas of policy making, financial decisions, and dismissal of management personnel are the six individual principals/owners acting in their capacities as members of the TAP Board of Directors. As a newly formed small business enterprise, wherein each member of the Board of Directors is a principal in the firm, most of the decisions on matters of policy making, financial decisions, and dismissal of management personnel are matters of Board discussion and involvement. Policy making originates with the President and is finalized at a Board meeting or through Board Member consent. Financial decisions, with the exception of small purchases and regular business expenses, rest with the Board of Directors. The Board of Directors, acting as a body, addresses all issues of management of the business and manager accountability. It is expected that in the future the roles of the President, Treasurer, and other officers will be vested with the authority customary to those offices. (JNT.EX. 1, Supplement to Schedule A)
The individuals who make the day-to-day decisions on matters of management, policy, and operations of TAP are the same as those who possess the power to handle the matters described immediately above. The day-to-day decisions on matters of management, policy, and operations are made by the President and Board of Directors in the manner described immediately above. Depending on the type of project involved, one or more of the principals of the firm is asked by the President to lead the developmental efforts and to prepare a recommended course of action for review by the President and final decision by the Board of Directors. (JNT.EX. 1, Supplement to Schedule A)
The language of the bylaws regarding the powers of the company president notwithstanding, in reality the President does not exercise any managerial authority on any matter of importance. The minutes of the TAP Board of Directors meetings reflect that even the most routine management decisions are submitted to the Board of Directors for final decisions. (See especially the minutes of the meeting of January 22, 1984, under the captions "OFFICE SPACE," "OFFICE RELATED MATTERS," and "WBE STATUS." This is consistent with the provisions of Article III, Section 2, of the TAP bylaws, which provides:
The President shall be the chief executive officer of the corporation, shall have general and active management of the business and affairs of the corporation subject to the directions of the Board of Directors, and shall preside at all meetings of the shareholders and Board of Directors.
(Emphasis added)
Article VIII, of the Articles of Incorporation of TAP provides:
8. The officers of this corporation shall be a Chairman, Vice Chairman, Secretary, Treasurer, President and such other officers,
agents, and factors as may be deemed necessary. All officers, agents, and factors shall be chosen in such manner, hold their offices for such terms, and have such powers and duties as may be prescribed by the by-laws or determined by the Board of Directors.
Article III, Section 3, of the TAP bylaws provides that the Board of Directors can remove any officer and fill any vacancy in office.
Article II, Section 1, of the TAP bylaws provides:
All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, the Board of Directors.
Article II, Section 8, of the TAP bylaws provides:
At a meeting of shareholders called expressly for that purpose, any director or the entire Board of Directors may be removed, with or without cause, by a vote of the holders of 67 percent of the shares then entitled to vote at an election of directors.
Article II, Section 9, of the TAP bylaws provides that five directors constitutes a quorum. That section also provides: "The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors." Article II, Section 10, of the TAP bylaws also provides for certain other actions to be taken by a "majority" of the full Board of Directors.
At the Board of Directors meeting of November 11, 1983, all of the principals/owners of TAP, acting in their capacities as Directors, took the following action:
By unanimous vote the Board ratified action taken by the President in the proper use of her powers and authority in those business decisions of the Corporation pertaining to representation of the Corporation on engineering consulting services: In fulfillment of her day-to-day decision making duties, the President directed that the Corporation be represented by those Principals of the firm who are engineers on matters which pertain to engineering services of the firm.
Further discussion ensued on the matter.
By unanimous vote the Board directed that as a policy of the firm, the President should continue to direct engineers who are principals of the firm to represent the firm on engineering and related matters as a general rule; but the President could direct
otherwise in specific situations which may arise from time to time that she decides should be treated and the firm represented differently.
The duties of the office of Treasurer of TAP, which office is held by Carol Rhinard, are ceremonial rather than substantive; the Treasurer does not independently make any decisions or take any action on any matter of significance relating to the finances of TAP. (See minutes of Board of Directors meeting of November 11, 1983; T. 51-53)
In sum, pursuant to the Articles of Incorporation and the bylaws of TAP, the real management power is vested in the Board of Directors and the male principals control 50 percent of the voting power on the Board of Directors.
And as a result of the Board of Directors meeting of November 11, 1983, the male principals have, for all practical purposes, full control of all decision-making with regard to the most important decisions in an engineering consulting firm -- i.e., the engineering decisions. 6/
Explication of why certain findings of fact were not made and how conflicts
in the evidence were resolved
In making these findings of fact I have not made a number of findings of fact proposed by the parties and I have made some findings essentially the opposite of those proposed by the parties. Thus, this explication is required so that the parties will know what I found to be irrelevant, what I found to be insufficient to support a finding of fact, and how I resolved some of the blatant conflicts in the evidence.
In making these findings of fact I have not based any findings on the copies of documents reflecting post-hearing changes to Article II, Section 2, and Article II, Section 9 of the TAP bylaws. I am constrained by the provisions of the Administrative Procedure Act to base my findings solely upon testimony and exhibits received in evidence at the formal hearing in this case.
Similarly, I have not based any of my findings of fact on the answers to the post-hearing interrogatories which were served on TAP and are referred to at several places in the post-hearing memorandum submitted by DOT. The extent, if any, to which the post-hearing changes in the bylaws of TAP may change the extent of the management control of TAP exercised by the women owners is a matter which will have to wait for another day to be addressed -- perhaps when TAP files a new application for MBE certification based on new facts. But my recommended order in this case must be based on the facts as they existed at the time of the hearing.
In the formulation of the foregoing findings of fact I have given little weight to the testimony of Carol L. Rhinard other than those portions of her testimony which constitute admissions against interest. My reason for giving little weight to this testimony is because, on the whole, Ms. Rhinard was not a very credible witness. She was both evasive and hostile on cross- examination. Throughout much of her testimony, particularly on cross- examination, she appeared to be trying to formulate what she thought would be
the answer most beneficial to her cause rather than the answer which most nearly corresponded to her recollection of objective fact. Her obvious emotional involvement in the matter at issue appeared to color her testimony on any matter that involved value judgment or comparison of one thing to another. Finally, she displayed either a poor memory of, or limited knowledge of, the business affairs of TAP.
I have not based any findings of fact on the testimony of Mr. Frank DeLuca for two reasons. First, it is irrelevant. Nothing in the applicable rules requires the women owners of a Minority Business Enterprise to be good or talented managers --they are just required to be the real managers. Second, even if it were relevant, the level of expertise that Mr. DeLuca purported to measure with his examination was that of ". . . someone who purported to be a traffic or transportation engineer . . . " (T. 196) The quoted standard is higher than the "working knowledge" standard in the U.S.D.O.T. training manual. Finally, I am not convinced of either the accuracy or fairness of the "examination" questions prepared by Mr. DeLuca. While I have no doubts about Mr. DeLuca's sincerity, nor any doubts about his competence as an engineer, there is no showing that Mr. DeLuca has any training or experience in the separate science of testing the knowledge of others. Further, the circumstances under which the "examination" was administered were far from ideal testing circumstances; the "examination" was unannounced, was unexpected, was administered by an adversary, and was administered at a time when the witness' attention was certainly distracted by other matters.
With regard to the matter of why each of the individual principals of TAP received different numbers of shares of stock and the related matter of who contributed what in the way of expertise, effort, and cash in exchange for the shares of stock that were issued, I have found none of the evidence worthy of belief; first because too many conflicting versions have been given at different times and, second, because important details have been omitted. The omissions are perhaps more critical than the conflicts when note is taken of the proposition that the failure of a party in possession of material evidence to come forward with that evidence gives rise to an inference that the unproduced evidence would have been adverse to the party who failed to produce it.
If one were to give credence to the evidence in the record on this subject, one could only conclude that the allocation of the shares of stock has all of the earmarks of a subterfuge designed to create the appearance of female control of the corporate management, when in fact the real intent of the parties was to divide control of the corporation along family lines, with each family having a voice in corporate affairs equal to that of each other family. This is evidenced by the fact that each family unit was issued 330 shares of stock.
Further, the evidence in this case, even when giving the Petitioner the benefit of an abundance of doubts, fails to demonstrate any rational basis for the disparate distribution of the shares of stock. The testimony indicates that Douglas Campion contributed approximately $1,500 to TAP's capitalization and received 30 shares of stock. Thus, he paid approximately $50 per share for his stock. Gloria J. Campion is asserted to have contributed approximately
$3,000 to TAP's capitalization and to have received 300 shares of stock. Thus, she paid approximately $10 per share. The Bynum family unit is asserted to have contributed more money to TAP's capitalization than did either of the other two family units, but the Bynum family unit received the same number of shares as the other two family units. These unexplained discrepancies lead only to the conclusion that the share distribution was contrived in an effort to create the appearance of eligibility under the MBE program.
The one alternative explanation which was tendered is unpersuasive because, like the foregoing, it is lacking in fundamental logic. There is testimony in the record that the distribution of shares of stock took into consideration the individual talents of the several principals, as well as their contributions of time and effort to the success of TAP. Yet this explanation fails because although all three male principals appear to have substantially similar training, experience, and talent, and although all three of the male members are contributing a full-time effort to TAP, two of the males received
160 shares of stock and one received only 30. Similarly, as valuable as Gloria Campion's talents and experience in mathematics and computers may be to the future success of TAP, it can hardly be argued that her contribution of expertise and effort to TAP is ten times greater than that of Douglas Campion -- yet she received ten times as many shares of stock as he did.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Chapter 120, Florida Statutes (1983).
Florida Administrative Code Rule 14-78.01(5)(h) contains the following definition:
(h) "Minority business enterprise" or "MBE" means a small business concern, as defined pursuant to Section 3 of the Small Business Act (15 USC 632) and implementing regulations, which is owned and controlled by one or more minorities or women. For the purposes of this rule, owned and controlled means an independent business which is at least 51 percent owned by one or more minorities or women, or, in the case of a publicly owned business, at least 51 percent of the stock of which is owned by one or more minorities or women and whose management and daily business operations are controlled by one or more such individuals. (Emphasis added)
Florida Administrative Code Rule 14-78.05 contains the following pertinent language:
To ensure that this Rule benefits only MBEs which are owned and controlled in both form and substance by one or more minorities or women, the Department shall certify firms who wish to participate as MBEs under this Rule.
(2) ***
(3) In certifying a firm as an MBE, the Department shall consider but shall not be limited to the following standards:
(a) ***
(b) An eligible minority business enterprise under this Rule shall be an independent business entity, the real, substantial, and continuing ownership and control of which shall be by minorities or women and go beyond mere pro forma ownership of the firm as reflected in its ownership documents. The minority or women owners shall enjoy the customary incidence of ownership and shall share in the risks and profits commensurate with their ownership interests, as demonstrated by an examination of the substance rather than form of financial and managerial arrangements.
(c) ***
An eligible minority business enterprise under this rule shall be one in which the minority or women owners shall also possess the power to direct or cause the direction of the management and policies of the MBE and to make day-to-day as well as major business decisions concerning the MBEs management, policy and operation. The discretion of the minority or women owners shall not be subject to any formal or informal restrictions (including, but not limited to, bylaw provisions, partnership agreements, or charter requirements for cumulative voting rights or otherwise) which would vary managerial discretion customary in the industry.
In determining whether the minority or women owners also possess the power to direct or cause the direction of the management and policies of the MBE and have the requisite decision-making authority, the Department may look to the control lodged in the owners who are not minorities or women. If the owners who are not minorities or women are disproportionately responsible for the operation of the enterprise or if there exists any requirement which prevents the minority or women owners from making business decisions without concurrence of any owner or employee who is not a minority or a woman, then the enterprise is not controlled by minorities or women and shall not be considered an MBE within the meaning of this rule.
An eligible minority business enterprise under this rule shall be one in which the
contributions of capital or expertise invested by the minority or women owners in order to acquire their interest(s) in the enterprise are real and substantial.
(f) ***
For the reasons discussed below, application of the foregoing Rule provisions to the facts in this case leads inescapably to the conclusion that Transport Analysis Professionals, Inc., is not eligible for certification as a minority business enterprise. 7/
In order to be eligible for certification as a Minority Business Enterprise, a business must demonstrate that it is both "owned and controlled" by minorities or women. Florida Administrative Code Rule 14-78.01(5)(h). In order to meet the ownership requirement the business seeking certification must establish "real" and "substantial" ownership of at least 51 percent of the business by minorities or women, which ownership must ". . . go beyond mere pro forma ownership of the firm as reflected in its ownership documents." Florida Administrative Code Rule 14.70.05(3)(b). In this case TAP has proved "pro forma ownership of the firm as reflected in its ownership documents," but it has not proved anything beyond that with regard to women ownership of the business. There is simply no credible, competent substantial evidence to establish "real" and "substantial" ownership by the women principals of 51 percent of the TAP stock. The testimony about why different people got different amounts of stock is totally illogical. The testimony about who contributed how much cash to the company is at once vague, conflicting, and incomplete. 8/ Thus there is no credible evidence to show that the pro forma ownership by the women owners is also legitimate "real" and "substantial" ownership. There is evidence in the record which, if believed, would support "real" and "substantial" ownership by the women principals of TAP, but I have not given any credence to such evidence because for every such piece of evidence there is a conflicting piece of evidence and at every turn the evidence is fraught with vagueness and with enormous omissions.
Further, even if it were to be established that the women principals of TAP were the "real" and "substantial" owners of a majority of the stock, the evidence shows that they do not possess the requisite ". . . power to direct or cause the direction of the management and policies of the MBE Florida Administrative Code Rule 14-78.05(3)(d). The evidence also shows that, contrary to the requirements of the last-cited rule provision, the discretion of the women owners of TAP are subject to informal restrictions-which ". . . vary managerial discretion customary in the industry."
As noted in the findings of facts, the real power to direct the management of TAP is vested in the Board of Directors and the women principals of TAP only control 50 percent of the voting power on the Board of Directors. Their engineer husbands control the other 50 percent. Thus the most that can be said regarding the exercise of managerial power by the women owners of TAP is that they share the power equally with their husbands. Absent the concurrence of at least one of the husbands, the women principals cannot control the destiny of TAP. Such being the case, TAP is not eligible for certification as a Minority Business Enterprise. Florida Administrative Code Rule 14-78.05(3)(d). 9/
Yet a further impediment to TAP's certification as a Minority Business Enterprise is the action of a unanimous Board of Directors on November 11, 1983, which vested the "engineers who are principals of the firm" (the husbands) with the authority to "represent" the company ". . . on engineering and related matters as a general rule . ." This ratification of authority constitutes at least an informal restriction ". . . which would vary managerial discretion customary in the industry," and is contrary to the requirements of Florida Administrative Code Rule 14-78.05(3)(d).
For all of the reasons discussed above, it is recommended that the Department of Transportation issue a Final Order denying the application of Transport Analysis Professionals, Inc., for certification as a Minority Business Enterprise.
DONE and ORDERED this 10th day of August, 1984, at Tallahassee, Florida.
MICHAEL M. PARRISH
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1984.
ENDNOTES
1/ post-hearing analysis reveals that quite a bit of irrelevant evidence made its way into the record. Also, as more specifically addressed hereinafter, the record contains evidence which is lacking in credibility, conflicting evidence, and evidence of dubious probative value.
2/ I have not made any findings about Carol L. Rhinard's "Master of Science program studies currently underway" which are mentioned in her resume, because she did not testify about such studies and, in any event, her testimony indicated that she is probably too busy to also be currently working on another degree.
3/ The majority of the work that Carol Rhinard has done for TAP appears to have been clerical and secretarial work. (T. 58-59, 63-64)
4/ The only evidence of Mary Bynum's efforts on behalf of TAP is Gloria Campion's "guess" that it is about 8 or 10 hours; but Ms. Campion doesn't really know. (T. 140)
5/ My best "guess" is that each of the three couples contributed an equal amount of cash (although there were perhaps differences in the amounts contributed by the husband and wife making up each couple) to the capitalization
of TAP, but evidence that is only good enough to support a "guess" is not good enough to support a finding of fact.
6/ In this regard see also the testimony of Gloria Campion to the effect that the Board of Directors can overrule the President (T. 115), that everyone shares equally in decision-making, men and women alike (T. 108, 112), but in the final analysis the female principals have to rely on the judgment and decision-making ability of the male members (T. 138-139, 149).
7/ In reaching my conclusions of law I have held TAP's application solely to the test of whether it met the requirements of the rules quoted above; rules duly adopted by the State of Florida Department of Transportation. I have not placed any reliance on the language of any provisions of any training manuals published by, or any training courses taught by, the United States Department of Transportation. (See, for example, RES.EX. 2) The Florida Department of Transportation has adopted a presumptively valid rule and as long as the rule is in effect, the Florida Department of Transportation is bound to follow it and cannot impose any requirements on applicants for MBE certification which are greater than or different from those which appear in the rule.
8/ Most of the testimony in this regard could best be described as "guesstimates". TAP did not offer into evidence any business records to show the exact amount of the capital contributions to the corporation or the exact amounts that were received in consideration for the shares of stock. The only business record touching on the subject of the corporation's capitalization indicates that TAP seems to play it rather "fast and loose" in matters of capital contribution. (See the minutes of the Board of Directors Meeting of December 30, 1983).
9/ This is analogous to the situation in Shurly Contracting, Inc., v. Department of Transportation, DOAH Case No. 83-3936, Recommended Order issued 6/29/84, where the Hearing Officer noted in his conclusion: "Power which the rule requires the female owner to possess or exercise, individually, is, here either shared with her husband -- or possessed or exercised by him alone."
COPIES FURNISHED:
James T. Armstrong, Esquire Suite 503
7700 North Kendall Drive Miami, Florida 33156
Linda Gurfein Miklowitz, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301
Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 21, 1990 | Final Order filed. |
| Aug. 10, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 29, 1984 | Agency Final Order | |
| Aug. 10, 1984 | Recommended Order | Application for certification as Minority Business Enterprise (MBE) should be denied for failure to satisfy requirements of applicable agency rules. |
