STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CERTIFIED GENERAL CONTRACTORS ) AND DEVELOPERS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-1187

) DEPARTMENT OF GENERAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on June 21, 1988, at Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Jeri Dee Goodkin

16375 Northeast Avenue, Suite 206 North Miami Beach, Florida 33162

For Respondent: Deborah S. Rose

Department of General Services

452 Larson Building

Tallahassee, Florida 32399-0955 BACKGROUND AND PROCEDURAL MATTERS

This case began on February 17, 1988, when the Department of General Services (Department) issued a letter which denied Petitioner's request for certification as a minority business enterprise. According to the denial, Petitioner did not meet the specifications for certification found in Sections 288.703(1) and (2), Florida Statutes. Petitioner contested the denial and by letter which was filed March 2, 1988, requested an administrative review of the denial. The case was forwarded to the Division of Administrative Hearings for formal proceedings on March 7, 1988.

At the hearing, Petitioner presented the testimony of Ivan Goodkin, Mark Goodkin, Harvey Willner, and Don Seatena. Respondent offered the testimony of Patricia Freeman together with Respondent's exhibits numbered 1 through 4 which were admitted into evidence.

After the hearing, a transcript was prepared and filed on July 20, 1988. The parties requested an extension of the time within which to file proposed recommended orders and were granted leave until August 12, 1988 to file their proposals. Both parties have filed proposed findings of fact which have been

considered in the preparation of this Recommended Order. Specific rulings on the proposed findings of fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether Petitioner is entitled to be certified as a minority business enterprise.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Certified General Contractors & Developers, Inc. is a Florida corporation organized to do business in this state.

   
   

2. Jeri Dee Goodkin, at all times material to this case, has been the president and sole owner of Certified General Contractors & Developers, Inc. Ms. Goodkin is a minority person as that term is defined by Section 288.703, Florida Statutes.

   
   

3. Jeri Dee Goodkin holds a general contractor's license, number CGC041575, which was issued by the Construction Industry Licensing Board. Ms. Goodkin is the only employee of Certified General Contractors & Developers, Inc. so licensed. The sole business of the company is to do general construction contracting.

   
   

4. Ms. Goodkin's father, Ivan Goodkin, and brother, Mark Goodkin, are employed by the company. Both father and brother work as salesmen. They attempt to procure jobs for the company, and their responsibilities include estimating the price at which the work can be completed. Once the job is secured, Ms. Goodkin contacts subcontractors who submit bids for portions of the job.

   
   

5. Ivan and Mark Goodkin may supervise the jobs they procure for the company. Ms. Goodkin is also responsible for supervision and must be on site for inspections performed by governmental agencies.

   
   

6. According to two subcontractors with whom Petitioner has done business, Jeri Dee Goodkin negotiated and reviewed all work performed by the subcontractors.

   
   

7. Prior to forming the Petitioner company, Ms. Goodkin and her father and brother worked for another company which was involuntarily dissolved by the Secretary of State. Ivan Goodkin was not an owner of the prior company. There is no evidence from which it could be concluded that the Goodkins owned or solely operated their prior employer.

   
   

8. Jeri Dee Goodkin has executed a lease on behalf of the company.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

10. Section 288.703, Florida Statutes provides, in pertinent part,

    
    

    1. "Small business" means an independently owned and operated business concern which employs 25 or fewer permanent full-time employees, and which has a net worth of not more than $1 million. As applicable to sole proprietorships, the $1 million net worth requirement shall include both personal and business investments.

    2. "Minority business enterprise" means 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 minority business enterprise may primarily involve the practice of a profession.

       
       

11. In this case, the Department does not contest the fact that Petitioner is owned by a minority person as that term is defined in Section 288.703, Florida Statutes. The issue in this case is whether or not the minority owner, Jeri Dee Goodkin, possesses control over the management and daily operations of the business.

    
    

12. To determine whether or not an owner possesses control over the management and daily operations of the business, the Department utilizes the following criteria set forth in Rule 13-8.005, Florida Administrative Code:

    
    

    1. Whether the minority owners have 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 a 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 in seeking and negotiating contracts, accepting and

       rejecting bids and in conducting all major aspects of the business.

    7. Whether the minority owners are current employees of a non-minority business corporation, or individual, or partnership which has a significant ownership interest in

       the business firm applying for certification.

    8. Whether the directors and/or management of the applicant is substantially the same as an affiliated non-minority firm.

    9. Whether the applicant is a wholly-owned subsidiary or affiliate of a non-minority firm.

    
    

13. Section 489.113(2), Florida Statutes provides:

    
    

    No person who is not a licensee shall engage in the business of contracting in this state.

    
    

14. Section 489.119(2), Florida Statutes provides, in pertinent part:

    
    

    If an applicant proposes to engage in contracting as a partnership, corporation, business trust, or other legal entity, the applicant shall apply through a qualifying agent.... The registration or certification, when issued upon application of a business organization, shall be in the name of the qualifying agent, and the name of the business organization shall be noted thereon.

    
    

15. In the case at issue, the company, Certified General Contractors & Developers, Inc., is only able to do contracting business as a result of the license held by Jeri Dee Goodkin. Without her license, the company could not lawfully solicit work. Only through the license can the company obtain permits required by governmental entities. Ms. Goodkin is responsible for the quality of work performed by the company and is accountable when inspections are made.

    
    

16. In addition to being the sole licensed agent for the company, Ms. Goodkin oversees the day-to-day work with subcontractors. The subcontractors submit their bids and negotiate work directly with Ms. Goodkin. Further, she supervises the work performed by the subcontractors and makes arrangement for their payment.

    
    

17. That Ms. Goodkin employs her father and brother in the business does not, of itself, negate the control she exercises over the management of the company. To the contrary, Petitioner has proved the roles played by relatives to be ones of sales support for the company. The father and brother solicit work for the company and may review the progress made at the job site but are not able to perform the work independent of Ms. Goodkin's company. They receive payment from the company only for jobs secured by them. Further, they have no assurance of continued employment.

    
    

18. Based upon the criteria set forth in Rule 13-8.005(3), Florida Administrative Code, Petitioner has proved it is entitled to be certified as a minority business enterprise.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a final order be entered approving Petitioner's request to be certified as a minority business enterprise.

DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Buildinc

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1988.

APPENDIX

Rulings on Proposed Findings of Fact submitted by Petitioner:

1. Paragraphs 1,2,3,5.7,8,10,13,and 14 are accepted.

2. Paragraph 4 is rejected as not supported by the record in this cause.

3. Paragraph 6 is rejected as not supported by the record in this cause.

4. Paragraph 9 is rejected as argument or comment unnecessary to the determinations and findings of fact.

5. That portion of paragraph 11 which sets forth the license number for Jeri Dee Goodkin is accepted, the rest of the paragraph is rejected as not supported by the record in this cause.

6. Paragraph 12 is rejected as not supported by the record in this cause.

7. Paragraph 15 is rejected as argument, irrelevant or unsupported by the record in this cause.

8. With regard to the subparagraphs listed under paragraph 16, the following findings are made: subparagraphs 2,3,7,10,13,and 27 are accepted. Subparagraph 28 is accepted to the extent that Jeri Dee Goodkin is the only licensee employed by the company. All other subparagraphs are rejected as unsupported by the record in this cause.

Rulings on proposed findings of fact submitted by the Department:

1. Paragraphs 1,2,3,4,8,9,10,11,13,and 15 are accepted.

2. Paragraph 5 is accepted, however is deemed irrelevant and immaterial to the resolution of the issue in this case. The evidence does not establish nor suggest that the Goodkins had an ownership interest in the prior company with whom they were employed.

3. Paragraph 6 is rejected as irrelevant and immaterial.

4. Paragraph 7 is rejected as speculative or argument. At best the lease shows it was executed by Jeri Dee Goodkin. The "Mr.Goodkin" referenced on the lease is not explained either by the document itself or the record in this cause.

5. Paragraphs 12 and 14 are rejected as a recitation of testimony, argument or irrelevant comment.

COPIES FURNISHED:

Deborah S. Rose

Office of General Counsel Department of General Services Room 452, Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0955

Jeri Dee Goodkin

Certified General Contractors & Developers, Inc. 16375 Northeast 18th Avenue

North Miami Beach, Florida 33162

Ronald W. Thomas Executive Director

Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955

Docket for Case No: 88-001187

Orders for Case No: 88-001187