Findings Of Fact J.D. Bligh Construction, Inc. (Petitioner), was incorporated and began doing business on or about February 18, 1974. Petitioner engaged in the construction business; erecting, repairing and remodeling buildings and structures; and performing public works. The majority of Petitioner's work is subcontracted out. At Petitioner's inception, Jack D. Bligh and his wife, Carol E. Bligh, were co-owners with each possessing 50 percent of the stock in the business. Jack Bligh was the President and the only Director. Petitioner was started as a family business. At all times material hereto, Jack Bligh was licensed as a certified Management contractor by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Petitioner is authorized by the State of Florida to engage in the construction business under his license. Petitioner had no employees other than Jack and Carol Bligh and subcontracted out work for which contracts were awarded or agreements entered into. All proposals for work and contract agreements on behalf of Petitioner were accepted and executed by Jack Bligh. Jack Bligh was the guarantor on behalf of Petitioner. For example, he was the guarantor for Petitioner's lease agreement for the site location of its business, dated June 15, 1988. Carol Bligh's duties with Petitioner were clerical and administrative, such as determining draw requests, ordering supplies and banking. She had no experience in the construction industry whether it was Management contracting or actual field experience. Jack Bligh, her husband, was responsible for the actual running of the business and handling the day-to-day operations of the business, such as contracting, estimating, bidding and hiring and firing subcontractors. On or about August 22, 1985, Jack and Carol Bligh formed J. D. Bligh Airport Construction, Inc., with Jack Bligh as the sole director and President, owning 49 percent of the stock, and Carol Bligh as Secretary, owning 51 percent of the stock. It was a wholly owned subsidiary and formed on the advice of their insurance agent and accountant for liability insurance purposes regarding a contract for work at the Fort Lauderdale International Airport, which at that time was a big project for Jack and Carol Bligh. In September 1988, Petitioner, as contractor, contracted with the Boca Raton Airport, Inc., d/b/a Boca Aviation to perform work at the airport at a cost of approximately $533,000. The subsidiary corporation, J. D. Bligh Airport Construction, Inc., was not used for this job. In July 1990, Petitioner entered into a contract as subcontractor to perform work at the Opa-Locka Airport at a cost of approximately $65,000. The subsidiary, J. D. Bligh Airport Construction, Inc., was also not used for this job. On or about August 8, 1990, J. D. Bligh Airport Construction, Inc., was changed to J. D. Bligh Caribbean Construction, Inc. The purpose of the name change was again for liability insurance purposes in order to perform work in St. Thomas, U.S. Virgin Islands. The Blighs were rebuilding apartments damaged by Hurricane Hugo. Also, in September 1992, Petitioner again contracted with Boca Raton Airport to perform work at a cost of approximately $272,000. Carol Bligh executed the contract and the performance bond. For 17 years, Jack Bligh remained Petitioner's President until on or about January 15, 1991, at which time Carol Bligh became President. She was gratuitously given additional stock in the business by her husband for her long years of service and dedication to Petitioner. With this additional stock, Carol Bligh also became the minority/majority stockholder. When Carol Bligh became President of Petitioner and minority/majority owner with 51 percent in January 1991, her main duties and responsibilities did not change. She continued with the clerical and administrative aspect of Petitioner's Management contracting business. However, her duties and responsibilities also expanded to include dealing with bonding, securing lines of credit and insurance, setting-up workers compensation, assisting in policy- making, financial planning and operational procedures, and contract negotiations. On or about October 3, 1991, Carol Bligh's duties and responsibilities relating to hiring and firing were officially increased by Petitioner's directors to include hiring and firing of all personnel, including office and field personnel. In 1990, Carol and Jack Bligh's daughter, Janice Bligh, joined the business. Using his more than 17 years experience in the construction business, Jack Bligh began training her in Petitioner's contracting business, which included taking her to job sites for observation of the work being performed. Around mid-1991, Janice Bligh was placed in control of field supervision, estimating and bidding. For the past year and a half, Jack Bligh performed these functions only when she was unable to do so. Janice Bligh received her training as a field supervisor from her father, Jack Bligh, through observing him and the subcontractors. His supervision extends over the subcontractors since the majority of Petitioner's work is subcontracted out. Janice Bligh is taking courses in contracting and has completed three; one in estimating, one in plan reading and one in the South Florida Building Code. She is not currently licensed in the construction industry but eventually wants to take the State licensing examination to become a Management contractor but that is 2 1/2 to 3 years away. She has limited knowledge of the statutory requirements placed upon a Management contractor in terms of authorized scope of work and required liability coverage. Since Carol Bligh became Petitioner's President, proposals and agreements or contracts have been signed by either Janice Bligh or Carol Bligh. Also, bonding documents have been signed by Carol Bligh. Authorized signers and users on Petitioner's bank account are Carol, Jack and Janice Bligh, individually, with either one of them being authorized to execute bank documents on behalf of Petitioner. When Petitioner needed funds for operating expenses, they came from Carol and Jack Bligh. A promissory note dated April 15, 1992, from Petitioner to Carol Bligh was signed by Carol Bligh, as President, and came from funds in Carol and Jack Bligh's joint account. However, another promissory note dated June 30, 1992, involved funds loaned to the businesses from a business owned by Jack Bligh's father. Additionally, a promissory note dated April 15, 1993, was from Petitioner to Carol and Jack Bligh, equally. On or about December 1, 1992, Janice Bligh became a shareholder and officer of Petitioner's business, acquiring 2 percent of the stock from Jack Bligh, thereby leaving him with 47 percent of the stock. Carol Bligh retained 51 percent of the stock. Even though Janice Bligh was a shareholder and part owner of Petitioner, an indemnity agreement with a bonding surety dated February 23, 1993, was signed by Carol and Jack Bligh only. Also, the agreement reflected no differentiation of liability. As to wages, Petitioner's quarterly wage report dated April 17, 1991, reflects Jack Bligh's salary as $3,650, Carol Bligh's salary as $7,250, Janice Bligh's salary as $5,200, Jill Bligh's salary as $1,209 and Lawrence Massey's salary as $4,093.76. Jill Bligh is another daughter of Carol and Jack Bligh. She performs office work, run errands and answers the telephone. She is neither an officer nor a director. Petitioner's quarterly wage report dated July 12, 1991, reflects Jack Bligh's salary as $650, Carol Bligh's salary as $650, Janice Bligh's salary as $5,200, Jill Bligh's salary as $1,698 and Lawrence Massey's salary as $1,593.77. Petitioner's quarterly wage report dated October 15, 1991, reflects Jack Bligh's salary as $440, Carol Bligh's salary as $600, Janice Bligh's salary as $5,200 and Jill Bligh's salary as $1,804.50. Petitioner's quarterly wage report dated January 27, 1992, reflects Jack Bligh's salary as $390, Carol Bligh's salary as $300, Janice Bligh's salary as $2,400 and Jill Bligh's salary as $1,522.50. Carol Bligh testified that she and Jack Bligh reduced their salary to aid the business economically in the bad economic times of the construction industry. However, her testimony is not credible in light of the salary paid their daughter Jill Bligh in relationship to the work she performed. Petitioner applied for certification by Respondent as a minority business enterprise (MBE) on March 24, 1992. An initial review of the documentation provided by Petitioner indicated that Petitioner did not meet the criteria for MBE status; however, questions remained so a telephone interview with Carol Bligh was held in July 1992. Based on the documentation provided and the telephone interview, Petitioner was denied MBE status and notified by certified letter, dated July 14, 1992. Petitioner has been certified as a MBE by local governments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a Final Order denying J. D. Bligh Construction, Inc., certification as a Minority Business Enterprise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of February 1994. ERROL H. POWELL 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 21st day of February 1994.
Findings Of Fact Petitioner Haul-It, Inc., is a trucking company in the business of hauling road building materials. It owns 19 trucks and 13 trailers worth about $106,000; and owes between $75,000 and $79,000 to a bank. Occasionally petitioner engages additional trucks and drivers. All but eight of its 15 or 16 employees are truck drivers. Haul-It, Inc., was organized in 1973. Jack Taylor and his father started the business but later sold out to Hubert E. Real, the president, half- owner and operator of Columbia Paving, and Wiley Jinwright, a 24-year employee of Columbia Paving. Mr. Jinwright became president of Haul-It, Inc., and Jack Taylor stayed on as truck foreman. Messrs. Real and Jinwright each owned 20 shares of stock, representing half interest in petitioner. Columbia Paving itself has never held any of the 40 shares of stock that petitioner has issued. In November of 1980, Mr. Real conveyed all 20 of his shares to his wife, Helen Real; and Mr. Jinwright conveyed one share to Mrs. Real. Both transfers of stock to Mrs. Real were gratuitous. She knew at the time that her ownership might help Haul-It, Inc., qualify as a minority business enterprise. In addition, Mr. Real "had had a couple of heart attacks" (T. 14) and Mrs. Real "thought it would be nice to have a related [to Columbia Paving] business." (T. 14.) The evidence did not reveal whether Mr. Real has spent more, less, or the same amount of time with petitioner's affairs since his divestiture as before. Mr. Real remains active as president of Columbia Paving. From November of 1980 to the time of hearing, Mrs. Real has owned 52.5 percent of petitioner's stock and Mr. Jinwright has owned 47.5 percent. Petitioner's only offices are housed in a trailer located on land owned by Columbia Paving. Haul-It, Inc., pays Columbia Paving rent for the land on which its office trailer, trucks, and other equipment are parked. At the time of the hearing, between 70 and 80 percent of Haul-It, Inc.'s work was being performed under contract to Columbia Paving. As far as the evidence showed, petitioner has always performed most of its services under contract to Columbia Paving. Although it has had other customers, Columbia Paving is petitioner's only regular customer. (T. 27.) Petitioner uses Columbia Paving's computer to keep its books and shares a bookkeeper with Columbia Paving. Each company pays the bookkeeper a separate salary. Mrs. Real sits on Columbia Paving's board of directors. Neither Columbia Paving nor any other entity uses petitioner's hauling equipment unless it has contracted to do so. When Haul-It, Inc., "bid[s] through Columbia Paving" (T. 39) in response to invitations by the Department of Transportation, Columbia Paving personnel check the bid over to make sure that it "fits whatever plan or whatever estimates they feel are in order." (T. 40.) Soon after she became owner of a majority of petitioner's Stock, Mrs. Real became petitioner's vice-president, secretary, and treasurer, even though she had had no prior experience in the trucking business. Mr. Jinwright remains president of Haul-It, Inc. It was also in November of 1980 that Haul-It, Inc., applied for certification as a minority business enterprise. At that time and for some months afterward, Mrs. Real was not working for Haul-It, Inc., on any regular schedule. On the basis of the information petitioner furnished with its application, respondent, in November of 1980, "certified them for 12 months, on the condition that an on-site review would be conducted and at that time the decision would be made as to the ownership and control and whether this minority business enterprise should be continued as certified." (T. 61.) In April of 1981, respondent's Mr. Nath conducted an on-site review. At that time, Mr. Nath requested additional documents which petitioner eventually mailed to respondent. In September of 1981, respondent for the first time communicated to Haul-It, Inc., its intention to disqualify petitioner as a minority business enterprise. After receiving this news, Mrs. Real began going to work for petitioner daily. She has an office in the trailer that she shares with Mr. Jinwright, whose role in Haul-It, Inc., was reduced to cosigning checks when Mrs. Real began working full time. Most of Mr. Jinwright's time is now spent as Superintendent of Columbia Paving's four asphalt plants. Even so, he still draws a salary from Haul-It, Inc., equal to Mrs. Real's salary. Despite their respective titles, both Mr. Jinwright and Mrs. Real act on the assumption that she, rather than he, has ultimate authority in the conduct of Haul-It, Inc.'s business. Mrs. Real has full authority to hire and fire, authority which she has delegated, in the case of the truck drivers, to Jack Taylor. She has the final say on all questions of policy and operations that arise in the business. Haul-It, Inc., cannot borrow money or make expenditures without her permission. Jack Taylor and two other employees buy for Haul-It, Inc., but she cosigns all checks with Mr. Jinwright. She has not learned how to prepare a written bid for the Department of Transportation, although she is involved with bidding. Mrs. Real relies heavily on Jack Taylor's bidding expertise, as have petitioner's other owners. Petitioner's proposed findings of fact and conclusions of law and respondent's proposed findings of fact, conclusions of law, and recommendation reflect the good work done in this case by counsel on both sides. To the limited extent proposed findings have not been adopted, they have been deemed immaterial or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny Haul-It, Inc., certification as a minority business enterprise. DONE AND ENTERED this 3rd day of March, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of March, 1982. COPIES FURNISHED: Patrick E. Hurley, Esquire Post Office Drawer 1049 Tallahassee, Florida 32302 Vernon L. Whittier, Jr., Esquire Ella Jane P. Davis, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Recommendation Based on the foregoing, it is RECOMMENDED: That petitioner's application for certification as a Women Business Enterprise be denied. DONE and ORDERED this 29th day of June, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 29th day of June, 1984. COPIES FURNISHED: Diann Criss Atkinson, Qualified Representative Shurly Contracting, Inc. P. O. Box 15267 West Palm Beach, Florida 33406 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Paul A Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue is whether the Petitioner meets the criteria for certification as a minority business enterprise by the Office of Minority Economic and Business Development, Department of Labor.
Findings Of Fact The applicant corporation, B. C. Mechanical Contractors, Inc. (BC), is owned by Benjamin Clark, Darlena Clark, his wife, and Florida Mechanical Systems, Inc. (FMS). BC is a Florida corporation incorporated on March 17, 1995. Mr. And Mrs. Clark supplied $5,000 each and FMS supplied $5,000, for a total capitalization of $15,000 for B.C. Mr. and Mrs. Clark each own 33 1/3% of the outstanding shares or a total of 66 2/3% of the outstanding shares, and FMS owns 33 1/3% of the outstanding shares of B.C. Both Mr. and Mrs. Clark are minorities. At the time Mr. Clark formed BC Mechanical Contractor, Inc., he entered into an agreement giving him the option to buy-out the shares of stock owned by FMS for $5,000.00 plus 10% interest per annum. Mr. Clark holds a mechanical contractor's license with the State of Florida. FMS is not owned by minorities. FMS lists its "General Nature of Business" as "Heating and Cooling" with Florida's Secretary of State, Division of Corporations. However, FMS no longer participates in the business of mechanical contracting. It is now provides equipment and real estate leasing together with personnel services to contractors. Mr. W. W. Gay owns a major interest in FMS. Mr. Clark worked for W. W. Gay Mechanical Contractor, Inc. (W. W. Gay, Inc.), from September 1975 to September 1997. Mr. W. W. Gay owns a major interest in W. W. Gay, Inc. Messrs. W. W. Gay, Roger Painter, and Robert Gay are all non-minorities and all are officers or directors of FMS. Mr. W. W. Gay is the licensed qualifier for W. W. Gay Mechanical Contractor, Inc. Mr. W. W. Gay qualifies the corporation as a mechanical contractor. Roger Painter is the corporate secretary of BC, and is authorized to sign checks on its accounts. Uncontroverted testimony was received that Painter has never signed a check on BC’s accounts and is authorized to sign checks as an emergency measure in case Benjamin Clark should become incapacitated. FMS has minority ownership interests in six to seven companies, some of which are in the contracting business. FMS has a net worth exceeding $10 million. FMS does not engage in the same business as the applicant. The financial statements of BC, Exhibit BC 3, and its tax returns, BC Exhibits 4 and 5, demonstrate that BC is a business that generates less than $100,000.00 a year. The net worth of BC is significantly less than $3 million. Ben Clark is the only director of BC. Although Roger W. Painter is corporate secretary for BC, Mr. Painter has no control over the corporation. Roger Painter is President of FMS. Mr. Clark and his wife control BC. Mr. Clark demonstrated that BC is a small business concern. BC is not an "affiliate" of FMS because FMS must have control over the affiliated entity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the application of Petitioner for certification as a minority business be approved. DONE AND ENTERED this 13th day of April, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1998. COPIES FURNISHED: Joseph L. Shields, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 John R. Stiefel, Jr., Esquire Holbrook, Akel, Cold, Stiefel and Ray, P.A. One Independent Drive, Suite 2301 Jacksonville, Florida 32202-5059 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189
The Issue The issue for determination at final hearing was whether Petitioner should be certified as a minority business enterprise pursuant to Section 287.09451, Florida Statutes, and Chapter 38A- 20, Florida Administrative Code, by the Office of the Supplier Diversity of the Department of Management Services.
Findings Of Fact Petitioner is a Florida corporation seeking certification in the field of "Sales and Installation of Network and Telephone Cabling" under the minority status of female-owned company. Fifty-one percent of Petitioner's stock is owned by Cynthia Martin, a white female, and 49 percent is owned by her husband, a white male. Until shortly before submitting its application, Petitioner corporation had previously operated as a sole proprietorship under the ownership of Keith Martin. The majority of the assets of Petitioner came from the previous sole proprietorship when Petitioner was formed. According to Mrs. Martin's testimony and payroll information submitted by Petitioner, Keith Martin received twice the salary of Cynthia Martin. Cynthia Martin is a full-time employee of the State of Florida. There is no evidence of employment for Keith Martin other than with Petitioner. The corporate documents in evidence reflect that since incorporation Cynthia Martin has been vice-president and secretary of the corporation, while Keith Martin has been president and treasurer. Petitioner's checks may be signed by either Keith Martin or Cynthia Martin and only one signature is required on each corporate check. Petitioner's Articles of Incorporation provide that the number of directors shall be determined in the By-Laws. The initial directors were Keith Martin and Cynthia Martin. The By- Laws provide that the corporation shall be managed by two directors, and that the number of directors may be increased only by amendment of the By-Laws. Also, a majority of the directors shall constitute a quorum for the transaction of business. This provision of the By-Laws has not been changed. At the organizational meeting of Petitioner, Keith Martin was elected president and treasurer, and Cynthia Martin was elected vice- president and secretary. No other documents were introduced into evidence reflecting any changes to the articles of incorporation or the By-Laws. The documentation submitted by Petitioner, and prepared by Cynthia Martin, consistently reflect Keith Martin as the president of the company and Cynthia Martin as vice-president. Cynthia Martin's duties include bookkeeping and performing administrative functions. Keith Martin's duties include the installation of cabling for local area networks and phone systems, picking up goods to be used on contracts, preparing daily timesheets and generating the paperwork necessary for billing clients, preparing quotations for clients, consulting with clients to determine needs, installation of phone systems and providing sales, service, and repair for clients. Cynthia Martin's duties for Petitioner are performed on her days off from her full-time employment, and on nights and weekends. The fact that Cynthia Martin owns 51 percent of the stock of Petitioner is important at stockholder meetings. At such meetings, she is entitled to one vote for each share owned, thereby allowing her to control stockholder meetings and effectively determine the directors of the company. The company is managed by the directors, while the day-to-day operations are managed by the officers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Office of Supplier Diversity enter a final order denying Tele-Net Communications, Inc.'s, application to be a certified minority business enterprise. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2000. COPIES FURNISHED: O. Earl Black, Jr., Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Cynthia Martin Tele-Net Communications, Inc. Post Office Box 11784 Jacksonville, Florida 32239 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Windell Paige, Director Office of Supplier Diversity Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
Findings Of Fact When, on April 7, 1986, Eunice Odom organized petitioner Three River Contracting, Inc. (Three River) and became its first president, she kept 60 percent of the common stock for herself and gave 20 percent to each of her two children, John Howard "Butch" Odom and Sandra Steward. Ms. Odom organized Three River in order to do specialty contracting with the Department of Transportation (DOT), in fields with which she was not intimately familiar. Three River "do[es] pile jacketing and guniting, and ... a lot of joint seals on bridges .. sandblasting and painting." T.29. But Ms. Odom had considerable experience with other businesses, including one that painted and sandblasted bridges. Respondent's Exhibit No. 4. Over a period of three and a half decades, as secretary and/or treasurer of a succession of family-owned corporations, Ms. Odom has made financial decisions and worked on a daily basis with enterprises that installed septic tanks, dug graves, erected monuments, moved cemeteries, dug ditches, sandblasted and repaired municipal water tanks, and recycled plastic and lead. While Three River's original president, Ms. Odom hired Red Nichols and Dale Harris as Superintendents and foremen, giving them authority to hire and fire their crews. She also "hired a Mr. Lee as estimator for a short period of time." T.75. When Three River came into existence, her son was managing a truck stop at an interstate highway exchange. Only after he sold the truck stop in August of 1986, did he go to work for Three River as an estimator, the job he still held at the time of hearing. Among other significant business experience, he brought eight to ten year's experience as an estimator to Three River. Because the secretary-treasured of Three River, Ms. Odom's daughter, Sandra Steward, also had her own business, she was seldom at Three River's offices. This proved inconvenient, when papers had to be signed both by the corporate president and by the company's secretary-treasurer. At a meeting of the three stockholders, Ms. Odom relinquished the presidency in favor of John Howard and became Secretary-treasured of the corporation, in Ms. Steward's stead. Paragraphs four through seven of the parties' prehearing stipulation consist of the following: Eunice Odom's power is not subject to any formal or informal restrictions evidenced by bylaws, partnership agreements, trust agreements, stock voting agreements, contracts, or any other agreement enforceable in a court of law, of which DOT is aware. See FAC 14-78.005(7)(e). It is customary in the construction industry for owners to hire estimators to assist owners of construction companies in submitting competitive bids. It is customary in the construction industry for owners to hire project managers to direct the day-to-day operations of construction projects on job sites. The salaries for Eunice Odom, John H. Odom and Sandra Steward are as follows: 1986 Eunice Odom $5,250.00 John Odom 9,500.00 Sandra Steward 2,050.00 1987 Eunice Odom $20,800.00 John Odom 52,700.00 Sandra Steward 7,800.00 1988 Eunice Odom $61,400.00 John Odom 65,200.00 The 1988 salaries reflect changes accomplished after Three River had made application for certification as a disadvantaged business enterprise. After DOT indicated its intention to deny Three River's application, John Howard Odom resigned as president and Ms. Odom resumed the presidency, on the advice of counsel. Whatever her title, Ms. Odom has spent 40 hours a week in Three River's office. Depending on what estimates he needed to prepare, John Howard worked from 20 to 100 hours a week. Ms. Odom has final say on which jobs Three River bids on. Neither Ms. Odom nor her son has ever fired any Three River employee. On the job, supervisors have authority to hire and fire workmen. Ms. Odom has full authority to and has in fact hired all of Three River's managers. John Howard was authorized to and did in fact borrow money for Three River, obtaining bank loans secured by a certificate of deposit, in one instance, and by two pick up trucks, in another. But John Manor, the banker whose bank made these loans, testified that he looked to Ms. Odom as the person he "consider[ed] to be the responsible individual," (T.16) "the financially responsible person in that corporation." T.20. She and Mr. Manor had agreed to the loan secured by the certificate of deposit before John Howard came into the bank and executed the papers. The loan secured by the trucks occurred without Mr. Manor's knowledge. Because of the nature of the collateral, a consumer loan officer handled the transaction without involving other bank officers. The evidence did not show who owned the certificate of deposit. Aside from these two secured loans, totalling approximately $46,000, petitioner's application reports indebtedness of another $32,000, and puts the value of the company at $500,000. John Howard testified without contradiction that his mother has the final say on major equipment purchases, and that she had rejected his suggestions that the company acquire a light plane to facilitate estimating jobs downstate; and that Three River buy, instead of lease, a "supersnooper," a truck Specially equipped with "an arm that comes out with a man in it, and ... goes underneath the bridge." T.30.
Recommendation It is, accordingly, RECOMMENDED: That respondent grant petitioner's application for certification as a disadvantaged business enterprise. DONE and ENTERED this 17th day of November, 1989, at Tallahassee, Florida. ROBERT T. BENTON, II 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 17th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0976 With respect to petitioner's proposed finding of fact No. 1, the evidence was unclear which month Butch started to work for Three River. Petitioner's proposed findings of fact Nos. 2 through 15, 17, 18, 20, 21, 23, 24, 25, 30, 31, and 34 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 16 and 19, Butch so testified. Petitioner's proposed findings of fact Nos. 22, 26 through 29, 32, and 33 pertain to subordinate matters. Respondent's proposed findings of fact Nos. 1 through 4 relate to free form proceedings that became immaterial, except to frame the issues, once formal proceedings were requested. Respondent's proposed findings of fact Nos. 5, 6, and 8 through 14 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 7, Ms. Odom's experience included some DOT contracting. COPIES FURNISHED: Ruth B. Dillard, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pete Davis, Minority Programs Office Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 James J. Richardson, Esquire Iamonia Farms Road Post Office Box 12669 Tallahassee, Florida 32317
The Issue Whether the Petitioner is the lowest responsible bidder on State Project No. 90050-3523? Whether the Respondent should have waived the Petitioner's alleged inadvertent failure to properly complete D.B.E./W.B.E. Utilization Form No. 1 submitted with its bid? Whether the Respondent's action in awarding State Project No. 90050-3523 to the Intervenor was ultra vires its statutory authority? Whether the Respondent's regulations, solicitations and bidding and contract procedures are illegal and violative of the United States Constitution and the Florida Constitution? These are the issues raised by the Petitioner. Issue 4 is beyond the jurisdiction of this case and, therefore, no recommendation on issue 4 will be made in this Recommended Order.
Findings Of Fact The parties stipulated to several findings of fact which were read into the record. The stipulated findings of fact, which are hereby adopted, are as follows: MR. BENTLEY: . . . . The first thing that we can stipulate to is that there were three bidders on this project; that one was Hendry Corporation, that one was Atlantic Foundation, and that one was Misener Marine construction, Inc.; that the only issues that are in dispute with regard to the responsiveness or responsibility of those three bidders have to do with the WBE submission of Hendry Corporation; that there are no issues in dispute as to the responsibility of Atlantic Foundation or Misener, which is really not at issue here, or the responsiveness of Atlantic Foundation or Misener to the bid proposal. We can stipulate that the figure bid by Hendry Corporation was $995,948.47; that the bid price submitted by Atlantic Foundation was $1,079,706.90; and that the bid of Misener Marine was $1,522,890.80. We can stipulate that all three bidders timely submitted their bids. Transcript, page 36, lines 14-25 and page 37, lines 1-10. MR. BENTLEY: With regard to the matters alleged in the formal written protest, the parties would stipulate that the information with regard to the issues raised in the formal written protest submitted by Hendry Corporation to the Department of Transportation, that is, information pertaining to WBEs, the only information submitted is that which was submitted as part of the bid, which has been marked as Exhibit 1. The parties would stipulate that each has standing in this proceeding; that they are substantially affected because they are all bidders on the same project. The parties would further stipulate that the Department of Transportation has rejected Hendry's bid for failure to comply with the WBE requirements set forth in the rule and the specifications. Transcript; page 39, lines 3-17. MR. BENTLEY: We can further stipulate that no documentation of good faith efforts, except as is reflected in the bid documents-- and there is no such proffer made in the bid documents--was made by Hendry with regard to WBEs. Transcript, page 40, lines 5-9. MR. SMITH: I think that this is covered in Mr. Porterfield's deposition, but I would like a stipulation that at the time we submitted this bid, Hendry did have an approved DBE affirmative action plan. Transcript, page 41, lines 20-23. In a Notice to Contractors dated July 3, 1985, the Respondent notified contractors that sealed bids would be received on a project designated as Federal Aid Project No. OH-485-1 (117), (Job No. 90050-3523) (hereinafter referred to as the "Project"). The Project was described as follows: MONROE COUNTY: FEDERAL AID PROJECT NO. OH-485-1 (117)(JOB NO. 90050-3523), SR-5 (US-1) At Channel No. 5 Bridge North of Layton. Work consists of Removing Sections of Old Bridge; Fender System and Navigational Lights; Construct New Pav't. of Existing Limerock Material Shaped and Compacted to Equivalent 10" Limerock Base and Type S Asph. Conc. Structural Cse.; Guardrail (Rdwy.); Muck Blanket; Floating Silt Barrier; Pav't. Marking.s (Ref. Pav't. Markers and Thermoplastic Striping); and Incidental Items. (B.I. 6116826) (APPROX. 290 CALENDAR DAYS) ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT W.B.E. GOAL 2.0 percent COST $20.00 Bids on the Project were acceptable until 10:30 a.m., July 31, 1985. The Petitioner filed its bid before the deadline. The bid was prepared by Mr. Paul E. Porterfield, the Petitioner's administrative engineer and chief estimator. The bid filed by the Petitioner with the Respondent on the Project included, in pertinent part, the following: A Bid Blank which indicated that the "Female Goal" for the project was 2 percent. The "Notice to Contractors" dated July 3, 1985, which included the following: THE PROJECTS LISTED BELOW MAY CONTAIN DISADVANTAGED BUSINESS ENTERPRISE GOALS, PLEASE CHECK SPECIAL PROVISIONS FOR SPECIFIC PERCENTAGE OF D.B.E. AND/OR W.B.E. GOAL REQUIREMENTS, AND SUBMISSION OF DISADVANTAGED BUSINESS AFFIRMATIVE ACTION PROGRAM PLAN. This Notice also included the description of the Project quoted above in finding of fact 2. A document titled "SPECIAL PROVISIONS" dated May 1, 1985. In this document it was indicated that: Contractors must meet or exceed established Women Business Enterprise (hereinafter referred to as "W.B.E.") goals or demonstrate that the goals could not be met, despite the contractor's good faith efforts; W.B.E. participation information must be submitted with the contractor's bid proposal; The award of a contract with W.B.E. goals would be conditioned upon the submission of W.B.E. participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals were not met, upon demonstrating that good faith efforts were made to meet the goals; A contractor's bid proposal must include the information specified on D.B.E./W.B.E. Utilization Form No. 1; Failure to meet the above requirements would result in disqualification of a bidder; and In determining the amount of W.B.E. participation, the Respondent would count the total dollar value of a contract to be awarded to a certified W.B.E. What constitutes a W.B.E. was also provided in the Special Provisions. A document titled "Supplemental Special Provisions (First Supplement)" dated June 24, 1985, pertaining to the Project which specified that the W.B.E. goal for the Project was 2 percent. A Disadvantaged/Women Business Enterprise Utilization Affirmative Action Certification signed by Mr. A. W. Hendry as President of the Hendry corporation. The Petitioner acknowledged on this Certification that it understood that it was required to show how the W.B.E. 2 percent goal for the Project would be met. The Certification also pointed out that if the D.B.E./W.B.E. Utilization Form No. 1 to be submitted with the bid did not reflect compliance with the W.B.E. goal that the Petitioner was required to submit documentation with the bid to demonstrate that the Petitioner had made good faith efforts to meet the goal. Finally, the Certification included the following: FAILURE TO SUBMIT THE DISADVANTAGED/WOMEN BUSINESS ENTERPRISE UTILIZATION FORM NO. 1 REFLECTING FULL COMPLIANCE WITH THE CONTRACT GOALS OR IF THE DISADVANTAGED/WOMEN ENTERPRISE UTILIZATION FORM NO. 1 DOES NOT REFLECT FULL COMPLIANCE WITH THE CONTRACT COALS FAILURE TO SUBMIT SUFFICIENT DOCUMENTATION TO DEMONSTRATE GOOD FAITH EFFORTS TO MEET THE GOALS WILL BE JUST CAUSE TO CONSIDER THE BID NONRESPONSIVE AND TO REJECT THE BID. THESE DOCUMENTS MUST BE SUBMITTED WITH THE BID PROPOSAL. A D.B.E./W.B.E. Utilization Form No. 1 signed by A. W. Hendry as President of Hendry Corporation. Two W.B.E. subcontractors were listed on this form: Advanced Barricade and Signing, Inc., and Markings and Equipment Corporation. The "$ Amount of Work" to be performed by Advanced Barricade and Signing, Inc., indicated on Form No. 1 was $10,845.00. The "$ Amount of Work" to be performed by Markings and Equipment Corporation indicated on Form No. 1 was $2,586.00. The spaces on Form No. 1 labeled "Grand Total Sublet $" and "Sub-Total of W.B.E. $" were left blank. The following was printed on Form 1 next to Mr. Hendry's signature: Failure to submit this certification or submission of a false certification or if the contract goals are not met, failure to submit sufficient documentation to demonstrate good faith efforts will be just cause to consider the bid nonresponsive and to reject the bid. The Petitioner was aware of the W.B.E. goal for the Project when it prepared and submitted its bid. Therefore, prior to the submission of its bid on the Project, the Petitioner had oral and written communications concerning subcontracting with W.B.E. contractors certified by the Respondent as W.B.E. qualified. The only written communication concerning the Project received by Mr. Porterfield before the Petitioner's bid was submitted to the Respondent was from Markings and Equipment Corporation. A written communication was also received from M and M Sod but it was not seen by Mr. Porterfield until after the bid had been submitted. Oral quotations from M and M Sod and Advanced Barricade and Signing, Inc., were received by Mr. Porterfield prior to submission of Petitioner's bid on the Project. All bids submitted to the Respondent were opened at approximately 11:00 a.m. on July 31, 1985. Based upon the total bid amount, the Petitioner was the apparent low bidder. By letter dated August 20, 1985, the Petitioner received a "Notice of Switch in Apparent Low Bidder." The Notice indicated that the Petitioner had been declared nonresponsive because of its failure to meet the W.B.E. requirements of the Project. This action was consistent with the Respondent's policy of rejecting bids which fail to fully comply with W.B.E. contract goals and which fail to include sufficient documentation evidencing a good faith effort to comply with these goals. The Petitioner failed to meet the W.B.E. goal for the Project because Mr. Porterfield had failed to include M and M Sod as a Potential W.B.E. subcontractor on the D.B.E./W.B.E. Utilization Form No. 1. The failure to include this potential W.B.E. subcontractor on Form No. 1 was explained as follows: A Because it was in the morning of the bid, it was a flurry of activity, and it was something I didn't double-check, and I left it off. I not only left it off, I didn't complete the form, in the totals or anything. Deposition of Paul E. Porterfield, page 25, lines 9-12. The Petitioner had contacted M and M Sod on the day before it submitted its bid and requested a quotation. The Petitioner also contacted M and M Sod on the day it submitted its bid and was quoted a price. If the Petitioner had included M and M Sod as a W.B.E. subcontractor in its bid it would have listed the "$ Amount Work" to be performed by M and M Sod on the D.B.E/W.B.E. Utilization Form No. 1 as $8,246.00 plus some amount of markup. This amount plus the $13,431.00 actually listed on the form would have totaled $21,677.00. The total amount of the bid submitted by the Petitioner was $995,948.47. This amount is $83,758.43 lower than the next lowest bid, which was submitted by the Intervenor. Two percent of the Petitioner's bid is $19,918.97. The total amount of work to be performed by W.B.E. subcontractors indicated on the D.B.E./W.B.E. Utilization Form No. 1 submitted by the Petitioner was $13,431.00. This amount is 1.3 percent of the total amount bid by Petitioner. This amount is not the amount which the Petitioner intended to pay to W.B.E. subcontractors. The $13,431.00 figure includes some amount which the Petitioner intended to keep for its own use. If the amount of the quotation received from M and M Sod ($8,246.00) had been included on Form No. 1, the total amount listed on the form would have been $21,677.00. This amount is more than 2 percent of the Petitioner's bid. This amount, however, is not the amount which the Petitioner would have actually paid to W.B.E. subcontractors. It also includes some amount which the Petitioner would have retained for itself. If the Petitioner had received the Project contract, it would have paid $8,246.00 to M and M Sod, $2,456.88 to Markings and Equipment Corporation and $10,740.00 to Advanced Barricade and Signing, Inc. These amounts total $21,442.88 and exceed 2 percent of the Petitioner's bid by $1,523.91. The Intervenor submitted a bid on the Project in the amount $1,079,706.90. A bid was also submitted by Misener Marine Construction, Inc., in the amount of $1,522,890.80. The Intervenor and Misener Marine Construction, Inc., met the W.B.E. goal for the Project. The Petitioner failed to meet the W.B.E. goal for the Project and failed to submit sufficient documentation to demonstrate a good faith effort to meet the goal. On September 9, 1985, the Petitioner filed its Notice of Protest with the Respondent protesting the award of a contract on the Project to the Intervenor. On September 18, 1985, the Petitioner filed its formal written protest. The Petitioner did not file a notice of protest or otherwise challenge the bid specifications established by the Respondent for the Project within 72 hours of its receipt of the bid specifications.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the bid submitted by the Petitioner, Hendry Corporation, in State Project No. 90050-3523 be rejected and that the contract be awarded to the Intervenor, Atlantic Foundation Company, Inc., as the lowest responsible bidder. DONE and ENTERED this 15th day of November 1985, in Tallahassee, Florida. Hearings Hearings LARRY J. SARTIN Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 15th day of November 1985. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reason for their rejection has also been noted. Paragraph numbers in the Recommended Order are referred to as "RO Petitioner's Proposed Findings of Fact: Paragraph 1: RO 2. Paragraph 2: RO 4d. Paragraph 3: RO 1, 3, 10 and 11. Paragraph 4: This paragraph is rejected because it is a statement of one of the issues in this case. Paragraph 5: RO 1. Paragraph 6: RO 6 and 7. Paragraph 7: RO 13. Paragraph 8: RO 4f, 5 and 9. Paragraph 9: RO 10. Paragraphs 10 and 11: These paragraphs are rejected because they are statements of the law. Paragraph 12: The first part of this paragraph is rejected because it is a statement of the law. The last part of this paragraph has been accepted in RO 4. Paragraph 13: The first sentence of this paragraph is rejected because the proposed finding of fact is not supported by the record and it is not relevant to this proceeding. The second sentence is rejected because it is not relevant to this proceeding. Respondent's Proposed Findings of Fact: Paragraph 1: RD 1, 3, 4, 6 and 10. Paragraph 2: This paragraph is rejected because it is a statement of the law. Paragraph 3: The first sentence has been accepted in RO 4. The second sentence is rejected because it is a conclusion of law. Paragraph 4: RO 4c. Paragraph 5: RD 8 and 10. Paragraph 6: This paragraph is rejected because it is a statement of the law. Paragraph 7: This paragraph is rejected because the record does not establish who made notations on the D.B.E./W.B.E. Utilization Form No. 1 submitted by the Petitioner. Paragraph 8: RO 4. Paragraph 9: RO 1. Paragraph 10: RO 7. Intervenor's Proposed Findings of Fact: Paragraph 1: RO 2 and 4. Paragraph 2: RO 4d. Paragraph 3: RO 4d. Paragraph 4: RO 4d. Paragraph 5: This paragraph is rejected because it is a statement of the law. Paragraph 6: RO 4e and 4f. Paragraph 7: RO 3 and 5. Paragraph 8: RO 14. Paragraph 9: RO 1, 3, 10 and 11. Paragraph 10: RO1, 4f and 10. Paragraph 11: RO 5, 8 and 9. Paragraph 12: RD 4f and 10. Paragraph 13: RO 1, 6, 7 and 11. Paragraph 14: RO 7. COPIES FURNISHED: Kent P. Smith, Esquire Richard J. Storrs, Esquire Non-Attorney Representatives Smith & Fleming 2300 Peachtree Center Tower 230 Peachtree Street, N.W. Atlanta, Georgia 30303 Guyte P. McCord, 111, Esquire MacFarlane, Ferguson, Allison & Kelly 700 First Florida Bank Building Post Office Box 82 Tallahassee, Florida 32302 Chris H. Bentley, Esquire Jeannette M. Andrews, Esquire Fuller & Johnson, P.A. 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302 Larry D. Scott, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner on the basis of sex in violation of Section 760.10, Florida Statutes, when it terminated his employment.
Findings Of Fact Respondent is a large corporate employer with corporate headquarters outside the State of Florida. Pertinent to this proceeding, Respondent has a large manufacturing facility located in Palm Beach County, Florida. Petitioner is a male who was employed by Respondent at its Palm Beach facility between August 1978 and February 1993. Petitioner is a college graduate who subsequently earned a Master's degree in Business Administration (MBA). Respondent first employed Petitioner as a Financial Trainee, which is designated as a Grade 41 on the system by which Respondent designated pay ranges and relative job responsibilities. Respondent promoted Petitioner to a position referred to as Financial Analyst in 1979, which is a Grade 43 position. Respondent promoted Petitioner in 1981 to a position referred to as Senior Analyst, which is a Grade 45 position. Respondent promoted Petitioner in 1984 and assigned him to its Saudi Arabia Program as the Continental U.S. International Administrator, which is a Grade 46 position. Respondent laterally transferred Petitioner in 1986 from the Financial Department into the Human Resources Department to a position designated as Personnel Representative, which is also a Grade 46 position. Respondent promoted Petitioner in January 1989 to a position designated as Senior Resources Representative, which is a Grade 48 position. Respondent informed Petitioner on February 12, 1993, that his employment would be terminated, effective February 28, 1993. Petitioner's base annual salary at the time his employment was terminated was $56,484.00. As of the formal hearing, Petitioner was working for his wife's appraisal company in a nonpaying job. Karen Roberts is a female who has been employed by Respondent at its Palm Beach County facility since June 1980. Ms. Roberts is also a college graduate who subsequently earned an MBA. In addition, Ms. Roberts has been designated as a Certified Compensation Professional by the American Compensation Association. Ms. Roberts first began her employment with the Respondent as a Financial Trainee, Grade 41. She was transferred out of the Finance Department into the Human Resources Department in July 1984 as a Human Resources Representative, which is a pay grade 45. She was promoted to Senior Human Resources Representative in October 1992, which is a pay grade 48. Respondent's upper management determined in 1992 that it was necessary to reduce the number of its employees as part of an overall restructuring of its operations. The reduction in force, which was to be the largest separation of employees that Respondent had ever experienced, was for valid business considerations which are not at issue in this proceeding. The management group set the target for the number of employees in each department of the Palm Beach facility whose employment would be terminated. The management group decided that the Human Resources Department of the Palm Beach facility, of which Petitioner was a part, would be reduced by between 20-25 employees in February 1993. That decision by the management committee is not being challenged in this proceeding. William Panetta was, at the times pertinent to this proceeding, the Respondent's Vice President of Human Resources for the West Palm Beach facility. The management group informed Mr. Panetta in the fall of 1992 of the upcoming reduction in force and gave to him the targets that had been set for the various departments for the West Palm Beach facility. Soon thereafter, Mr. Panetta began meeting with the heads of major departments to devise a procedure for making the reductions in force. Among the senior staff who met with Mr. Panetta was John Roberson, who was manager of Human Resources for non-engineering personnel. Petitioner worked in Mr. Roberson's department from the time he was transferred to its Human Relations Department in 1986 until the termination of his employment in 1993. Mr. Roberson was Petitioner's second line supervisor. At different times, Bob Vogel, Charles Wilson, and John Hopkins served as Petitioner's direct supervisor. Mr. Roberson was asked by Mr. Panetta to prepare a draft of a proposal for the procedure to be followed in carrying out the reduction in force. This draft was to include a method to identify those employees whose employment would be involuntary terminated. Pertinent to this proceeding, Mr. Roberson's draft included a provision for selecting among multiple incumbents when some job positions or functions were being eliminated. In that situation, Mr. Roberson proposed that seniority be the primary factor and that relative performance of the incumbents be considered only if the more senior employee was ranked as a low performer on his or her annual evaluation. Respondent annually evaluated employees such as Petitioner as being either a "T" (top), a "M" (middle), or an "L" (low). The employees were also given annual evaluations by their supervisors called Performance Management Reports, which rated the employees on a scale ranging between unsatisfactory to exceptional. During his entire tenure with Respondent, Petitioner was rated at least as being fully competent on his Performance Management Reports and, at different times, as being either in the "T" or the "M" category. The procedure drafted by Mr. Roberson was never intended to be the final procedure that would be followed in accomplishing the reduction in force. In late 1992, Mr. Panetta presented Mr. Roberson's draft to the senior staff for comment and revision. The senior staff determined that Mr. Roberson's draft overemphasized seniority and was too inflexible. It was determined that such emphasis on seniority would hamper management's efforts to retain the most qualified employees. The Human Resources Department assigned to each of Respondent's major departments a Personnel Support Representative to assist with employee relations and to provide administrative support in personnel matters. As part of the procedure followed for the 1993 layoffs, the Personnel Support Representative for each department reviewed the candidates for layoffs with the Department Head to determine whether the selection was fair and properly documented. The Personnel Support Representative was to provide support only. Each Department Head had the responsibility for determining the employees within a department to be laid off. During the same time period that senior staff was trying to develop the procedure that would be followed for layoffs, Mr. Roberson met with the Personnel Support Representatives and discussed with them the drafted procedure he had prepared. He informed them that the draft was not the final product and asked for discussion. Mr. Roberson discussed with the Personnel Support Representatives the final policies that senior staff adopted before final selections were made and informed them that rigid adherence would not be given to seniority. Respondent has never used seniority as the controlling factor in any previous layoff. The senior staff decided that it would consider the following criteria to determine which of its qualified employees to layoff: documented poor performance, the elimination or consolidation of different positions, relative performance among the candidates, and seniority. Mr. Panetta determined that those employees of the Human Resources department should be "generalists" who are capable of performing a wide range of responsibilities as opposed to specialists. Respondent's plan was to either eliminate functions that had been performed by specialists or to consolidate those functions with other specialized functions. The employees in Human Resources who would still be employed would be required to take on new responsibilities and to perform tasks that had previously been performed by specialists. In the Human Resources department, an employee would have to assume responsibilities in labor relations, employee relations, and compensation. Mr. Panetta decided after conferring with Mr. Roberson that the Management Training, Placement and Compensation section in the Human Resources department for non-engineering personnel would be eliminated. Senior Human Resource Representatives and Human Resource Representatives were candidates for layoffs and were put into a resource pool. The employees in the resource pool were thereafter considered for other positions by comparing their qualifications with those of employees whose positions were not being eliminated. If an employee in the resource pool was considered to be more qualified than an employee whose position was not being eliminated, the more qualified person in the resource pool would be retained to fill the existing job and the incumbent employee would have his employment terminated. Petitioner and Karen Roberts were assigned to the compensation function at the time of the layoffs, but their positions were eliminated as a result of the layoffs. Petitioner and Karen Roberts were placed in the resource pool. Dave Swanson was employed as a Personnel Support Representative in the Human Resources Department prior to the reduction in force. Mr. Swanson's position was not eliminated, but it was determined that there were employees in the resource pool, including Petitioner and Karen Roberts, who were more qualified than Mr. Swanson. Respondent selected Ms. Roberts to fill the position that had been filled by Mr. Swanson. Petitioner's employment with Respondent was terminated. Petitioner asserts that Respondent discriminated against him on the basis of his sex in deciding to retain the employment of Ms. Roberts and to terminate his employment. There is no assertion by Respondent that Petitioner was an incompetent employee. To the contrary, Respondent considered Petitioner to be a competent employee, which is why he was a candidate to fill Mr. Swanson's former position. At the time of the layoffs, John Hopkins was the Manager of Technical Development and Compensation and the direct supervisor of Petitioner and Ms. Roberts. While Mr. Panetta had the ultimate responsibility for deciding whether Petitioner or Ms. Roberts would be retained in Mr. Swanson's former position, he relied heavily on Mr. Roberson's recommendation in making that decision. Mr. Roberson in turn relied on his own knowledge of the respective performances of these two employees and on information that had been given him by Mr. Hopkins. Mr. Hopkins believed that Ms. Roberts was a more valuable employee than Petitioner. Mr. Hopkins testified that Petitioner failed to timely complete certain assignments, that certain aspects of his performance was not satisfactory, and that he had experienced problems working with others. Mr. Hopkins received separate complaints from Joe Bressin, who was in charge of Executive Compensation, and Henry Ugalde, who was in charge of the Equal Employment Opportunity function, that Petitioner had not rendered satisfactory assistance to them. Petitioner did not meet all of the interim deadlines for preparation of a negotiations book that was being complied for use in labor negotiations. Several of Petitioner's supervisors met with him during his tenure with Respondent to discuss his perceived deficiencies and to review his assignments. Mr. Roberson was aware of these deficiencies at the time he recommended to Mr. Panetta that Ms. Roberts be selected to fill Mr. Swanson's former position. Mr. Hopkins considered Ms. Roberts to be a "solid performer" who was enthusiastic, worked well with others, and was capable of performing a wide range of tasks. Ms. Roberts prepared a book for other employees in the compensation function that detailed the procedures involved in performing hourly compensation duties relative to collective bargaining agreements. In addition, Ms. Roberts was chosen by Mr. Panetta to assist Respondent's negotiating team during negotiations with the labor unions for the 1992-1993 labor contract. Ms. Robert's worked on a complex computer program that computed the costs to Respondent of various collective bargaining proposals. Ms. Roberts was chosen for this assignment because Mr. Hopkins believed her to be the best employee to assume this responsibility. Mr. Hopkins selected her because of her competence, her enthusiasm, her ability to maintain confidential information, and her willingness to work irregular hours. Gender was not a factor in selecting Ms. Roberts for this assignment. Ms. Roberts performed with distinction the duties that had been assigned to her as a member of the negotiating team, thereby favorably impressing Mr. Roberson and Mr. Panetta. Mr. Roberson was aware of Ms. Roberts' job performance at the time he recommended to Mr. Panetta that she be selected to fill Mr. Swanson's former position. Mr. Roberson and Mr. Panetta did not rely heavily on their most recent job evaluations, which were the only documents they reviewed, nor did they consider it significant that Petitioner was in a position that is designated as pay grade 48 when his last evaluation was written and that Ms. Roberts was in a position designated as pay grade 46 when her last evaluation was written. 1/ Mr. Roberson and Mr. Panetta considered the responsibilities and job duties of these two positions to be identical. The relative job performances of Petitioner and Ms. Roberts were evaluated by Mr. Roberson and Mr. Panetta taking into consideration the future demands of the job and were based, in large part, upon direct experience with the two employees. There was no written documentation of their rationale for selecting Ms. Roberts to fill Mr. Swanson's former position. Petitioner established that Mr. Roberson occasionally made comments about attractive female employees and that he seemed to prefer the company of certain female employees, one of whom was Ms. Roberts, at social events. While due consideration has been given this evidence, it is found that the greater weight of the evidence established that Respondent had legitimate, nondiscriminatory business considerations for the employment decision that was at issue in this proceeding. These considerations were not shown to be pretextual. Petitioner failed to establish that Respondent discriminated against him on the basis of his sex by its decision to replace Mr. Swanson with Ms. Roberts instead of with Petitioner. The petition Petitioner filed before the Florida Commission on Human Relations contains an allegation that Respondent discriminated against him on the basis of age. Petitioner abandoned that allegation at the beginning of the formal hearing. The petition Petitioner filed before the Florida Commission on Human Relations also contains an allegation that Respondent discriminated against him by failing to rehire him or recall him after his employment had been terminated. There was no evidence to support that allegation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that adopts the findings of fact and conclusions of law contained herein and that dismisses the Petition for Relief filed by Petitioner. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of January, 1995.
Findings Of Fact At all times pertinent to the matters concerned herein, either the Department of Management Services, or its successor, the Commission of Minority Economic and Business Development, was the state agency in Florida responsible for certification of Minority Business Enterprises in this state. Johnston was started by Mrs. Cloversettle's grandfather and operated by him and his three sons, including Conrad Johnston, Mrs. Cloversettle's father, for many years. As a child and young woman, Mrs. Cloversettle worked at the place of business in differing capacities and learned something of the business operation. At some point in time, she married Mr. Cloversettle who was and has been an employee of the firm, and over the years, he operated much of the equipment used in the business. Mrs. Cloversettle is also a licensed cosmetologist, and owns and operates a beauty salon through a corporation she owns with her husband. He does much of the handyman work at that shop and she works, part time, as a cosmetologist. Most of her time, however, is occupied with the affairs of Johnston. There are currently 60 shares of common stock issued in Johnston Lithograph & Engraving, Inc.. Seven and three quarters shares are owned by Mr. and Mrs. Cloversettle. Three and three-quarters shares came from her father, and she acquired four additional shares at the time she bought the business. Three and three quarters shares are owned by Mrs. Cloversettle's aunt, Ms. Sims, who lives in North Carolina; fifteen shares are held in the name of her father, Conrad Johnston; and eighteen and three-quarters shares each are held by his two brothers, Bert and Don. Ms. Sims takes no income from Johnston, does not participate in the management of the company, and plays no role in it other than as share owner. At one point, Mr. Cloversettle owned a one-half interest in the four shares his wife got at the time of purchase, but she considered herself the owner in that they were titled jointly only "for simplicity", just as the house and their bank accounts are also owned jointly. On April 26, 1994, after the initial denial of Petitioner's application for MBE certification, the joint ownership was terminated and the shares registered in Ms. Cloversettle's name only without any exchange of consideration therefor. Much the same pertains to the company bank accounts. Before the denial, both George and Brenda Cloversettle could sign company checks. Since then, however, George Cloversettle has been removed as an authorized signatory on company accounts. The shares owned by Ms. Cloversettle's father and his brothers, Donald, Bertram, are presently held as "security" for the payment of the purchase of Johnston by Mrs. Cloversettle. The shares are not voted and are held in escrow under an escrow agreement. A stock pledge agreement, dated February 7, 1986, to which the Cloversettles were not parties, produced after the hearing, pertains only to the corporation and Conrad and Margaret Johnston. Its terms, somewhat confusing, can best be interpreted as providing that upon default in payment, the stock held in escrow would revert to the original holder as titled on the face of the certificate or, at the option of the original owner, be sold. At the time of denial, the shares owned by Donald and Bertram had not been properly endorsed into the escrow but this was done prior to formal hearing when, by affidavit dated August 1, 1994, the escrow agent indicated both Donald's and Bertram's shares were subject to the 1986 escrow agreement. The 1986 agreement prohibits the issuance of any new or additional shares of stock until the purchase obligation is paid off. This provision may have been violated when the four additional shares were issued to the Cloversettles in 1990. The shares owned by both Bertram and Donald were the subject of a stock sale agreement for $93,000.00 for each block of eighteen and three-quarters shares. Both the date of the agreement and the signatures of the parties are not evidenced on the documents, however, but it appears Bertram deposited fifteen of his shares with the Tampa 1st National Bank in 1975, some fifteen years prior to the Cloversettle's 1990 purchase of the company. Conrad Johnston entered into a purchase agreement in 1985 with the original owners which did not include the Cloversettles. His fifteen shares were signed into escrow on February 6, 1986. These discrepancies in capital ownership were not clarified at hearing. Mr. and Mrs. Cloversettle entered into the agreement to buy the company from the Johnstons in 1990 for a purchase price of $300,000. Though in an earlier deposition, Mrs. Cloversettle indicated only about $3,000 of the purchase price had been paid, which money allegedly came from the proceeds of an insurance policy loan and a mortgage on their home, at hearing, she testified $30,000 had been paid, all of which came from the mortgage on their home. No payments on the obligation are currently being made by the Cloversettles because each of the original owners executed an agreement deferring payment until the company is financially able to make regular payments. The minutes of a special shareholder's meeting held on July 8, 1994, reflect the above-noted Johnston brothers' certificates were surrendered for cancellation in July, 1990. However, the minutes also note that the sale and redemption of the certificates was subject to an escrow pursuant to the February, 1986 escrow agreement which, in November, 1993, was affixed to an amended agreement naming Edward Hill as Escrow Agent, which referred to the Johnston brothers not as stockholders but as secured creditors. Because of the complex manipulation of the shares and their status, it is impossible to determine the relative ownership of the parties. Petitioner has not established with any degree of clarity that Brenda Cloversettle, though a minority owner, has actual and real ownership of at least 51 percent of the company equity free of any residuary or reversionary interest which could divest her of her 51 percent ownership. The shares covered by the escrow agreement, while classified by Petitioners as treasury stock, cannot legitimately be so considered since it is still in the name of the original owners and does not become property of the company until the obligation incurred for its purchase is satisfied. While, as noted previously, no additional payments have been made on the purchase price, the company maintains a life insurance policy on each Johnston which Ms. Cloversettle indicates is to be used to pay off the outstanding debt upon their respective deaths. She admits however, there is no document requiring the insurance proceeds to be used that way, and no independent evidence of the policies' existence was forthcoming. The primary business of Johnston is commercial printing/graphics. Ms. Cloversettle is the sole director of the corporation whose bylaws, as of July 8, 1994, require all directors to be minority persons. She has asserted, and it was not disproved by evidence to the contrary, that she has the primary role in decision-making concerning the company's business transactions and she is the sole person required to execute any transaction related documents. She has final authority as to all corporate decisions and is not required to consult with anyone else when corporate decisions are being made, though she may do so. Johnston does not keep inventory on hand but purchases supplies necessary on a job driven basis. According to Ms. Cloversettle, she controls the purchase of inventory and determines the need and appropriateness of equipment rentals or purchases. She seems to be familiar with and to understand the use of the products utilized by the company in its daily operations. She has a fundamental knowledge of the equipment used in the company's operation and, though she may not be fully qualified to operate every piece, can operate some of it. Though she periodically consults with her husband regarding business operations, she is not required to do so and has the responsibility for the hiring and management of employees. She alleges she sets employment policies, wages, benefits, and employments conditions at the company without the need to coordinate her actions with anyone. However, in a phone interview with the Department's representative, in February, 1994, Ms. Cloversettle had difficulty correctly answering many of the technical questions she was asked at hearing. Mr. Cloversettle, who has worked with the firm for approximately twenty years, is its key employee in computer graphics and serves as production manager and vice-president. Without doubt, along with Mr. Ezell, the firm's printer, he is primarily responsible for the daily plant operations, supervising the other employees, planning daily work flow, and insuring the vendors who supply the needed raw materials do so in a timely fashion. Ms. Cloversettle is college trained and, as noted previously, a licensed cosmetologist. She has done bookkeeping for the firm and acted as office manager, but has no formal training in printing, or graphics, other than years of observation as she grew up with the operation when it was operated by her father. Her primary hands-on experience is in book bindery and shop cleaning but she can run some of the smaller, less exotic equipment. She is not familiar with all the terms and duties involved in the operation of this business and could not accomplish them all. She acknowledges she spends most of her time in the office. She claims to be solely responsible for the financial affairs of the company and is the only one currently authorized to sign company checks. This situation, as has been noted, is of but recent origin, however. Nonetheless, Mr. Cloversettle continues to remain subject to equal debt responsibility with Ms. Cloversettle because of his prior co-signing of risk documents relative to loans taken by the company prior to the application, denial and hearing. Ms. Cloversettle's testimony regarding her method of evaluating the company's ability to perform potential jobs creates the impression that she is aware of the company's limitations and its abilities. She does not run the cameras or the presses and she need not do so. She does not solicit business but she hires a salesperson to do so and has the authority and capability to evaluate and accept or reject the work brought in. In the last two quarters of 1993, according to company payroll records, Mr. Cloversettle was paid approximately $6,426.00 while Ms. Cloversettle was paid only $2,650.00. However, after the application was denied, the ratio was changed dramatically to where she now earns $180.00 per week, and he, only $52.95.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Johnston Lithograph & Engraving, Inc.'s request for certification as a minority business enterprise. RECOMMENDED this 15th day of September, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 15th day of September, 1994. APPENDIX TO RECOMMENDED ORDER 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 parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. Accepted as to the shares of Ms. Cloversettle and Ms. Sims. However, this does not indicate acceptance of the proposition that there are no other shareholders, or that the transfer of shares from Mr. Cloversettle to his wife was bona fide. 4. Accepted and incorporated herein. 5. Accepted and incorporated herein. 6. Accepted. However, as noted in the body of the Recommended Order, it is impossible to clearly define the actual status of the brothers' and father's retained shares or whether they have the potential to dilute Ms. Cloversettle's shares. 7. Accepted and incorporated herein. 8. Not proven. 9. Not proven. 10. - 12. Accepted, but based entirely on unsupported testimony of Ms. Cloversettle. 13. & 14. Accepted and incorporated herein. 15. - 18. Accepted, but based entirely on unsupported testimony of Ms. Cloversettle. 19. & 20. Accepted and incorporated herein. 21. Accepted as a restatement of testimony. 22. & 23. Accepted. 24. Accepted as a restatement of testimony. 25. Not an appropriate Finding of Fact but a comment on the evidence. 26. & 27. Accepted and incorporated herein. FOR THE RESPONDENT: First four sentences accepted and incorporated herein. Balance accepted as a comment on the evidence. Accepted. Not a proper Finding of Fact but more a comment on the state of the evidence. Accepted. Accepted but more as a comment on the state of the evidence. - 12. Accepted and incorporated more briefly herein. More a comment on the evidence and a Conclusion of Law than a Finding of Fact. Accepted and incorporated herein. First two sentences accepted and incorporated herein. Balance more a comment on the meaning and effect of the basic fact. & 17. Accepted and incorporated herein. First three sentences accepted and incorporated herein. Balance comment on the evidence. - 22. Accepted and incorporated herein. 23. & 25. This is a restatement of testimony by both sides. 26. & 27. Accepted and incorporated herein. COPIES FURNISHED: Frederick T. Reeves, Esquire Langford, Hill, Trybus & Whalen, P.A. Post Office Box 3277 Tampa, Florida 33601-3277 Wayne H. Mitchell, Esquire Commission on Minority Economic and Business Development Knight Building, Suite 201 2737 Centerview Drive Tallahassee, Florida 32399-0950 John Thomas Interim Executive Director Commission on Minority Economic and Business Development Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Petitioner properly issued the Stop-Work Order (“SWO”) for Respondent’s failure to comply with Petitioner’s Request for Production of Business Records (“Request to Produce”).
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation law that requires employers to secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. Respondent is a Florida limited liability company, organized on September 18, 2014, engaged in business in Florida. Mary Atwood is the listed manager and owner of Boss Lady Co. The nature of Respondent’s business was a disputed issue at the final hearing. Mrs. Atwood testified that she obtained a license to engage in construction as a minority female business owner. The record contains a handwritten list of jobs provided by Mrs. Atwood to represent the work performed by Respondent, which included color sealer (application), partial color sealer (removal), privacy fence repair, and privacy fence (installation). On May 18, 2017, Mr. Byrnes observed a truck parked in front of a property with a magnetic sign indicating, Boss Lady Concreate Company. The sign indicated the company worked on patios, driveways, foundation, flat work, and privacy fences. He then stopped at the property to perform a random check. During the random check, Mr. Byrnes encountered two men when he approached the property. The first man, Joshua Brown, was operating a pressure washer. Mr. Byrnes told Mr. Brown his name and the purpose of his visit. Mr. Brown told Mr. Byrnes that his boss, Mary, was in the back of the house. Mr. Brown stated that it was his first day working for Mrs. Atwood and that he was expecting to receive beer money for the day. The second man, Kenneth Archibald, stated that he works for Mrs. Atwood off and on and had done so for some time. He stated he was generally paid eight or nine dollars per hour and that he expected to be paid his general wage for that day’s work. Mrs. Atwood denied that Mr. Archibald and Mr. Brown were her employees and stated that they were just helping her out for the day. However, Mrs. Atwood transported the two men to the property for the purpose of pressure washing the driveway. While Mrs. Atwood continued to deny that she intended to pay the gentleman for the work performed, she testified that the men wanted beer money and she was “going to give them a couple of dollars for beer.” No one was paid for anything that day. Neither of the two men alleged to have been working for Mrs. Atwood testified at the hearing. Mrs. Atwood’s testimony is the only direct evidence presented at hearing of the payment arrangement for the two men at the property location. Mr. Byrnes checked the Department's Coverage and Compliance Automated System ("CCAS") database to determine whether Mrs. Atwood had secured the payment of workers' compensation insurance coverage or had obtained an exemption from the requirements of chapter 440. CCAS is a database that Department investigators routinely consult during their investigations to check for compliance, exemptions, and other workers' compensation related items. CCAS revealed that Mrs. Atwood had an exemption for herself for construction, effective October 5, 2016. There was no evidence that Respondent had workers’ compensation coverage for any employees. Based on his jobsite interviews with the alleged employees and Mrs. Atwood, and his CCAS computer search, Mr. Byrnes concluded that Mrs. Atwood had two employees working in the construction industry and that she had failed to obtain workers’ compensation coverage for those employees in violation of chapter 440. As a result, Mr. Byrnes issued a SWO that he personally served on Mrs. Atwood on May 18, 2017. Also on May 18, 2017, Mr. Byrnes served Mrs. Atwood with a Request for Production, asking for payroll records, accounting records, disbursements, contracts for work, subcontractors’ documents, and documentation of subcontractors’ workers’ compensation coverage for the period from February 13, 2017, through May 18, 2017. The request for payroll records included income tax documents. Mrs. Atwood provided Mr. Byrnes with a list of jobs performed, including the amount paid for work performed, in response to the Request for Production. Mrs. Atwood testified that she produced the only records she had in her possession because she did not have payroll records, bank records, or billing records. Mrs. Atwood also testified that Boss Lady Co. filed taxes, yet it did not provide tax records because Mr. Byrnes allegedly did not request the records. The undersigned is not persuaded by Mrs. Atwood’s testimony regarding failure to produce the income tax records. The evidence supports a finding that Boss Lady Co. had tax records for the covered time period which were not produced to the Department. The evidence produced at hearing clearly and convincingly demonstrated that Mrs. Atwood was covered by an exemption (related to the construction industry) from workers’ compensation insurance exemption. There is direct evidence that Mr. Byrnes saw Mr. Brown operating the pressure washer, and that, at the very least, Mrs. Atwood intended to pay him a couple of dollars for beer. Thus, the undersigned finds that Mr. Brown was working for Respondent on May 18, 2017. However, there was no direct evidence that Mr. Archibald was observed performing any work. The only evidence as to whether Mr. Archibald worked for Respondent or how he was paid was hearsay statements of Mr. Archibald as restated by Mr. Byrnes. Mr. Archibald was not available at hearing to corroborate Mr. Byrnes testimony. Mrs. Atwood testified that Mr. Archibald was merely plugging in the pressure washer. The Department did not demonstrate by clear and convincing evidence that Mr. Archibald was performing work for Respondent on May 18, 2017. Mr. Byrnes testified that the work he observed on May 18, 2017 (pressure washing) was non-construction work. Although the work performed on that day may not be classified as non-construction work, the evidence demonstrates that Boss Lady Co. is an employer with one or more employees engaged in the construction industry. Thus, Boss Lady Co. was required to maintain workers’ compensation coverage for its employees. The Department has demonstrated that issuance of the SWO was proper, pursuant to chapter 440. The Department has demonstrated by clear and convincing evidence that Respondent was in violation of chapter 440 by failing to produce tax records in response to the Request to Produce.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department entered a final order finding: the Department properly issued the Stop-Work Order against Boss Lady Concreate Co., LLC; and Boss Lady Concreate Co., LLC, failed to comply with the SWO by failing to provide tax records as requested by the Department’s Request to Produce. DONE AND ENTERED this 16th day of November, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2017.
