Judges: WILLIAM R. CAVE
Agency: Department of Management Services
Latest Update: Mar. 28, 1989
Summary: Unless minority can show control of 51% of business operations the business cannot qualify for Minority Business Enterprise.
88-5533STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALETHA L. DUNN, t/a THUMBPRINT ) COPY & PRINTING CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 88-5533
) DEPARTMENT OF GENERAL SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an Administrative Hearing was held before William R. Cave, Hearing Officer, Division of Administrative Hearings, on February 6, 1989 in Jacksonville, Florida. The issue for determination is whether Petitioner, Aletha L. Dunn, a minority person, controls the management and daily operations of Thumbprint Copy & Printing Center and whether she substantially shares in all risks assumed by the business.
APPEARANCES
For Petitioner: Aletha L. Dunn, Pro Se
Thumbprint Copy & Printing Center 3723 Southside Boulevard
Jacksonville, Florida 32216
For Respondent: Susan B. Kirkland, Esquire
General Counsel
Department of General Services Room 452, Larson Building
200 East Gaines Street Tallahassee, Florida 32399-0955
BACKGROUND
Petitioner, Aletha L. Dunn t/a Thumbprint Copy & Printing Center, filed a request for certification as a Minority Business Enterprise with Respondent, Department of General Services. By letter dated October 11, 1988, Respondent denied the request for certification on the basis that the minority owner, Aletha L. Dunn, did not control the management and daily operations of the business and that Thumbprint Copy & Printing Center did not meet the specifications of Rule 13-8.005(2)(e) and 13.005(3)(a)(d)(e) and (f), Florida Administrative Code. Petitioner testified on her own behalf, and exhibits 1, 2, 3, 4, 5, and 6 were received into evidence. Respondent presented no witnesses but by agreement of the parties the deposition of Calvin E. Dunn taken on January 23, 1989 was received into evidence as Calvin E. Dunn's testimony.
Respondent's exhibits 1 and 2 were received into evidence.
Respondent submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each of Respondent's proposed findings of fact has been made as reflected inn the Appendix to this Recommended Order. Although Petitioner did not expressly waive the filing of posthearing Proposed Findings of Fact and Conclusions of Law, she has not filed any.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the final hearing and the stipulations of the parties, the following relevant facts are found:
Aletha Dunn is a minority, person as defined in Section 288.703(2)(f), Florida Statutes.
Thumbprint Copy & Printing Center (Thumbprint) has a net worth of less than $1,000,000.00; is domiciled in Florida; and is organized to engage in commercial transactions.
Thumbprint is a printing and video transfer business, and until January, 1988, was a franchise of Minuteman Press (Minuteman). The Minuteman franchise was purchased for approximately $32,000.00 by Calvin E. Dunn, using joint funds of Calvin E. and Aletha L. Dunn (the Dunns). Calvin Dunn was listed as the owner of the franchise.
Calvin Dunn attended a printing course sponsored by Minuteman, and was taught how to work the press and bindery equipment, and also taught how to bill, wait on customers, figure jobs, collect money, order paper and figure sizes of paper.
Upon determining that the Minuteman franchise was not a profitable arrangement, the Dunns made a decision to get out of the franchise agreement. However, the franchise agreement contained a non-compete clause prohibiting Calvin Dunn from owning a printing business within a six mile radius of the franchised business for 2 years.
The Dunns avoided the noncompete clause by selling the business to Aletha Dunn for $1.00.
At the time of the sale to Aletha Dunn, the business account receivables were over $6,000.00.
The video transfer equipment continued to be owned jointly by the Dunns.' There was insufficient evidence to show what other business assets were included in the sale.
The Dunns had owned 2 other businesses - a video transfer store and a catalog sales store - before acquiring the Minuteman franchise.
Minuteman prohibited Aletha Dunn from signing the franchise agreement, otherwise the Minuteman would have been purchased jointly by the Dunns.
Aletha Dunn pays the bills, orders stock, keeps the books, gives quotes, prepares bids and calls on customers. Aletha Dunn's duties with Thumbprint are very similar to those she had with Minuteman. Aletha Dunn has not learned to print and does not want to print.
With Thumbprint, Calvin Dunn schedules and does all the printing, does video transfers, occasionally helps Aletha Dunn with quotes, and, when Aletha Dunn is out of the store, will wait on customers and order supplies, if necessary.
The big decisions such as purchasing large items for the Thumbprint are made jointly by the Dunns. The decision to purchase a press, a cutter, a collator, a camera and a drill press for Thumbprint was made jointly by the Dunns.
The business funds are deposited in a business joint checking account.
Three MasterCards are used in the purchase of equipment for Thumbprint, with one in Calvin Dunn's name only and the other two held jointly by the Dunns.
Calvin Dunn assumed a lease for the building in which Thumbprint is located when purchasing the Minuteman franchise which does not expire until August, 1990. The monthly rental amount is $533.00 plus a proportionate share of the common area maintenance expenses, real estate taxes and insurance. Calvin Dunn is personally liable for the timely payment and performance under the lease. Aletha Dunn has never assumed the lease from Calvin Dunn.
The Dunns are the only employees of Thumbprint, and in order to remain open, one of them must stay on the business premises.
The Dunns are not paid a salary as such, but take a draw from Thumbprint which is used for their support.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation
v. J. W. C. Company, Inc., 396 So.2d 778 (1 DCA FLA. 1981). Petitioner must prove her entitlement to certification as Minority Business Enterprise by a preponderance of the evidence. Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (4 DCA Fla. 1974). Petitioner has failed to sustain her burden to prove entitlement to certification as a Minority Business Enterprise.
Section 288.703(2), Florida Statutes, defines a Minority Business Enterprise as "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 person". (emphasis supplied).
After reviewing those factors set out in Rule 13-8.005(3), Florida Administrative Code, which are to be considered in determining whether the minority person controls the management and daily operations of a business, in regard to Petitioner's relationship with Thumbprint, it is clear that Petitioner does not control the management and daily operations of Thumbprint.
Likewise, Petitioner has failed to show that she shares in all the risks assumed by Thumbprint commensurate with her percentage of ownership in Thumbprint, a necessary criteria that is required by Rule 13-8.005(2)(e), Florida Administrative Code, in order for Thumbprint to be considered as 51 per cent owned by minority persons.
RECOMMENDATION
Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witness, it is, therefore,
RECOMMENDED that a Respondent enter a Final Order denying Petitioner's request for certification as a Minority Business Enterprise.
Respectfully submitted and entered this 25th day of March, 1989, in Tallahassee, Florida.
WILLIAM R. CAVE
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 28th day of March, 1989.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5533
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case. The Petitioner did not file any posthearing Proposed Findings of Fact and Conclusions of Law.
SPECIFIC RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT
1.-2. Adopted in Findings of Fact 3 & 4, respectively.
Adopted in Findings of Fact 5, 6, 7 and 8. 3.* Adopted in Findings of Fact 9 and 10.
Adopted in Findings of Fact 11 and 12.
Adopted in Finding of Fact 13.
Adopted in Findings of Fact 14 and 15.
7.-10. Adopted in Findings of Fact 16, 17, 2 and 11, respectively.
* There were two paragraphs numbered 3.
COPIES FURNISHED:
Ronald Thomas, Executive Director
133 Larson Building
200 East Gaines Street Tallahassee, Florida 32399-0955
Susan Kirkland, Esquire General Counsel
452 Larson Building
200 East Gaines Street Tallahassee, Florida 32399-0955
Aletha L. Dunn, Pro Se
Thumbprint Copy & Printing Center 3723 Southside Boulevard
Jacksonville, Florida 32216
Docket for Case No: 88-005533
Orders for Case No: 88-005533
| Issue Date |
Document |
Summary |
|
May 12, 1989 |
Agency Final Order
|
|
|
Mar. 28, 1989 |
Recommended Order
|
Unless minority can show control of 51% of business operations the business cannot qualify for Minority Business Enterprise.
|
