Findings Of Fact Based upon the testimony of the witnesses, the documentary evidence received at the hearing, and the record in DOAH case no. 88-6257, the following findings of fact are made: On October 24, 1988, the Department notified Sophie DeRuiter and Ann & Jan Retirement Villa that the license to operate an adult congregate living facility expired on October 23, 1988, and that the application for renewal was denied. The specific reasons listed as the grounds for such denial were a determination of confirmed medical neglect of residents and the inappropriate retention of residents. Thereafter, Petitioner timely sought an administrative review of the denial by filing a petition for administrative hearing with the Department which was subsequently forwarded to the Division of Administrative Hearings for formal proceedings on December 16, 1988. That matter was assigned DOAH case no. 88- 6257. Hearing of case no. 88-6257 was originally scheduled for March 17, 1989, by notice of hearing dated January 18, 1989. Thereafter, Petitioner scheduled a number of depositions and requested a continuance in the case to accommodate Sophie DeRuiter. That motion was unopposed by the Department and was granted by order entered February 27, 1989. That order also rescheduled the hearing for April 14, 1989, and required the parties to file a prehearing statement no later than March 24, 1989. Neither party timely filed a prehearing statement. In fact, the parties were unable to agree on a statement due to their disagreement as to the issues of the case. The unilateral statements filed by the parties established that Petitioner sought review of all grounds for the denial of the license renewal. On the other hand, the Department took the position that since Sophie DeRuiter was listed on the Florida Abuse Registry for confirmed medical neglect of residents, that such listing precluded renewal of the license. The Department alleged that Petitioner had not timely challenged the abuse report, and that such record could not be challenged in the instant case. The Department's letter denying amendment or expungement of the medical neglect had been issued December 7, 1988. Given the confusion of the parties and their failure to file prehearing statements as required, the hearing scheduled for April 14, 1989, was cancelled. Subsequently, the Department moved to limit the issue to whether there was a confirmed record of an abuse report (and thereby presume the underlying report correct). Such motion was denied on June 1, 1989. On June 9, 1989, the hearing of this matter was convened. At that time, the Department moved to continue the case due to illness of counsel and her inability to review an amended witness list filed by Petitioner. The motion was granted after it was apparent counsel for the Department was unprepared to go forward on all issues of the case (she represented she had just received the order requiring her to go forward on all issues on June 8, 1989). The case was rescheduled for August 10, 1989. Subsequently, the matter was continued again at Petitioner's request. The case was finally scheduled for hearing for September 8, 1989. The Petitioner filed a motion for summary judgment on August 14, 1989. On September 7, 1989, the Department filed a notice of dismissal which was construed as an assent, in whole or in part, to the relief requested by the Petitioner. Consequently, the hearing was cancelled and jurisdiction was relinquished to the Department for such further action as would be appropriate. It was presumed that the abuse record would be expunged which would result in the reinstatement of the license. The Petitioner in the instant case has not, however, established the final resolution of DOAH case no. 88-6257. Petitioner did not comply with Rule 22I-6.035, Florida Administrative Code by attaching the documents on which the claim that the small business party prevailed was predicated nor was proof of such document offered at the hearing of this matter. Sophie DeRuiter is the administrator and owner of Ann & Jan Retirement Villa which is located at 3486 Rostan Lane, Lake Worth, Florida. According to the style of the initial pleading filed by Petitioner in the instant case, Ann & Jan Retirement Villa has been incorporated. The proof offered at hearing suggested that Sophie DeRuiter is the sole proprietor of a business known as "Ann & Jan Retirement Villa." In August, 1988, Ms. DeRuiter employed approximately four full-time employees. In the three years she has owned and operated the facility, Ms. DeRuiter has never employed more than twenty-five full-time employees. The net worth of Ann & Jan Retirement Villa is less than two million dollars. Ms. DeRuiter's personal net worth is less than two million dollars. The combined worth of Ann & Jan Retirement Villa and Ms. DeRuiter is less than two million dollars. Ms. DeRuiter employed the law firm of Weissman and Chernay, P.A. to represent her in connection with the allegations in DOAH case no. 88-6257. In connection with that case, Ms. DeRuiter incurred legal fees in the amount of $8587.50 together with costs in the amount of $897.59. The reasonableness of those amounts was not disputed.
Findings Of Fact In July, 1992, the Department of Health and Rehabilitative Services (HRS) published notice soliciting proposals from interested attorneys to provide intrastate and interstate child support legal services HRS District VI. The services were to be provided from October 1, 1992, through June 30, 1993. (Exhibit #4). Within relevant deadlines, protests to the written specifications of the solicitation were filed by Petitioner, Donald W. Belveal, and others. HRS determined that material disputes of fact existed and the protests were referred to the Division of Administrative Hearings (DOAH) where the cases were consolidated and set for final hearing. (Exhibit #5) Hearing Officer, Veronica Donnelly, conducted the hearing and issued a recommended order on December 22, 1993, recommending that the specifications be rejected as flawed and that they be extensively revised. (Exhibit #5). Exceptions were filed, and upon a suggestion of mootness HRS entered a final order on March 17, 1993, dismissing the proceedings and finding further: No Final Order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees. The request for a determination of attorney fees is DENIED. The request to dismiss the department's exceptions to the Recommended Order is DENIED. (Exhibit #6) Donald Belveal appealed this final order to the Second District Court of Appeal. The full opinion of the court in Donald W. Belveal v. State of Florida, Department of Health and Rehabilitative Services, case no. 93-01121, dated February 25, 1994, provides: The law firm of Donald Belveal appeals a final agency order entered by the Florida Department of Health and Rehabilitative Services (HRS) which dismisses administrative proceedings and denied Belveal's motion for attorney's fees and costs under section 57.111(4), Florida Statutes (1991) on the ground that Belveal was not a prevailing party. We reverse. Belveal and other lawyers formally protested a bid solicitation package prepared by HRS to procure legal services for its child support program in Hillsborough County. The Department of Administrative Hearings (DOAH) held a formal hearing after which the hearing officer entered a recommended order that the package be revised, citing numerous improprieties. HRS filed excep- tions to the order. In addition, to prevent a lapse in services during the protest proceedings, HRS extended the existing contract for legal services to cover the remainder of the bid proposal period. Arguing that the extension nullified the bid solicitation and rendered the administrative contest moot, Belveal and the others filed a motion to dismiss the exceptions. They also asked that the case be remanded to DOAH for an award of attorney's fees and costs under the Florida Equal Access to Justice Act, section 57.111(4), Florida Statutes (1991). The deputy secretary for human services of HRS entered a "final order" which concluded that Belveal's motion to dismiss/suggestion of mootness was tantamount to a request that the proceedings be discontinued. The department dismissed the proceedings, denied the request to dismiss HRS's exceptions, and denied the request for attorney's fees stating, "[n]o final order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees." HRS exceeded its authority in entering this order. First, the dismissal of the action exceeded the scope of the motion to dismiss the exceptions. Second, the determination of whether Belveal was a prevailing party entitled to attorney's fees and costs was solely within the jurisdiction of the DOAH hearing officer. See Dep't. of Health and Rehabilitative Services v. S. G., 613 So. 2d 1380, 1384 n.1 (Fla. 1st DCA 1993). Because HRS denied the motion to dismiss the exceptions yet never ruled on the hearing officer's recommended order, we remand the case to HRS for further proceedings in accordance with section 120.57, Florida Statutes. Reversed; remanded. In addition, the appellate court issued its order granting fees in the appeal, "...provided that appellant is ultimately the prevailing party in the proceeding below." (Exhibit #2) HRS entered its corrected final order on June 22, 1994, finding the case to be moot with the exception of the attorney's fees issue, acknowledging that the agency is without jurisdiction to determine who is the prevailing party and entitled to fees, and dismissing the case. (Exhibit #4) It is undisputed that Donald Belveal is a small business party. (Respondent's proposed final order, paragraph 8). Donald Belveal claims total fees of $21,292.25, incurred in the administrative proceeding, which fees are based on 121.67 hours at an hourly rate of $175. He claims additional fees for the appeal. (Exhibit #3) As stipulated, the claimed fees are reasonable, but the award may not exceed $15,000. (Respondent's proposed final order, paragraph 9.)
Findings Of Fact The petition herein is brought in the name of "Silvia S. Ibanez." It prays that attorneys fees and costs be awarded pursuant to Section 57.111 F.S. to "Petitioner Ibanez . . . as the small business prevailing party in this disciplinary action and any other relief deemed appropriate," in the amounts of $11,252.73 for the services of the Holland & Knight law firm, $13,822.50 for the services of the Moore, Hill and Westmoreland law firm, and $8,563.50 for the services of Robert Shapiro, Esquire. Herein, Ms. Ibanez seeks recovery of attorney's fees and costs incurred in DOAH Case No. 91-4100, styled, Department of Professional Regulation, Board of Accountancy v. Silvia Ibanez. That case involved a recommended order in Ms. Ibanez' favor, a final order against her, a direct appeal to the Florida First District Court of Appeal, a writ of certiorari from the United States Supreme Court, and subsequent remand activity. That disciplinary proceeding was initiated by the agency against Ms. Ibanez, a licensed certified public accountant (CPA), alleging violation of certain Board rules, most prominently the rules which have come to be known as the "holding out" and "fraudulent advertising" rules. Ms. Ibanez was the only respondent named in the July 30, 1991 amended administrative (disciplinary) complaint, the only initiating document provided. The January 15, 1992 recommended order therein shows that Silvia Ibanez was individually charged with disciplinary violations of the certified public accountancy statute and rules for (Count I) practicing public accounting in an unlicensed firm by various personal acts; (Count II) by appending certain designations to her name; and (Count III) by practicing public accounting by holding herself out as a CPA and appending the CPA designation after her name in advertising so as to imply she abided by Chapter 473 F.S. The closest that case came to dealing with any business entity other than Silvia Ibanez individually was an inarticulate phrase drafted into paragraph eleven of Count I of the amended administrative complaint, the thrust of which complaint was to define a violation of the advertising rule. That inarticulate paragraph eleven seemed to charge Ms. Ibanez individually for failing to license her law firm, "Silvia S. Ibanez, P.A.", as a CPA firm. From the Order of Reconsideration dated August 22, 1991, it appears that inarticulate and convoluted paragraph eleven allegation against Ms. Ibanez individually was only intended to address Count I as already framed and was withdrawn to avoid confusing, instead of clarifying, the issues in dispute. The recommended order contains the following findings of fact and conclusions of law which are significant to this fees and costs case: Finding of Fact 9: Neither the CFP nor CPA credential is part of the firm name, "Silvia S.Ibanez, P.A.-Law Offices," which also appears on Ibanez' business card. Ibanez' telephone directory listings and card at issue show the CPA and CFP credentials strictly appended to Respondent's individual name. Findings of Fact 16: Ibanez testified credibly that her intent in appending CPA and CFP credentials solely to her own name is to indicate that she is, in her own right, individually licensed as a CPA and CFP. Conclusion of Law 9: 3/ DPR asserted that Ibanez is engaged in "practicing public accounting" as set forth in one or both of the definitions of that term contained in subparagraphs (a) and (b) of Section 473.302(4) F.S. Ibanez countered to the effect that she was exempt from those statutory definitions on the basis of one or more of the three exclusions to the term "public accounting," which are set forth in Sections (1), (2) and (3) of Rule 21A- 20.011 F.A.C., and therefore, she could not be held to have violated any portion of Chapter 473 F.S. More specifically, Ibanez urged that because she is working as an attorney within a P.A. (which she asserted is an employer not required to be licensed under Chapter 473 F.S.), she falls under exception 21A-20.011(1) F.A.C. The April 23, 1992 final order of the Board and the appellate court orders in the disciplinary case did not alter the foregoing findings of fact or specifically address the foregoing conclusion of law, which does little more than recite a legal position posited by Ms. Ibanez before DOAH in the disciplinary case. At the time of the recommended order in the disciplinary case, Rule 21A-20.011(1) F.A.C. provided: "Practice of, or practicing public accountancy" as defined by Section 473.302(4) F.S., shall exclude any of the following: Services rendered by a licensee as an employee of a governmental unit or an employee rendering accounting services only to his employer as long as that employer is not required to be licensed under F.S. 473,... Ms. Ibanez' law firm was never licensed as a CPA firm, and she did not purport to be the qualifying licensee for a CPA firm. Concurrent with most of the duration of the disciplinary action, Ms. Ibanez was also pursuing a Section 120.56 F.S. rule challenge to another rule, the "holding out" rule, Rule 21A-20.012 F.A.C. She had initiated that challenge in her capacity as a licensed CPA. As Petitioner in that rule challenge, Ibanez et al v. Board of Accountancy et al, DOAH Case No. 3336R, Ms. Ibanez posited herself as a sole practitioner and an employee of the law firm, "Silvia S. Ibanez, P.A.", but the law firm was not a party to, and did not participate in, the rule challenge. "Silvia S. Ibanez, Esquire" appears on the copies list of the final order in the rule challenge. That final order declared the "holding out" rule invalid on January 15, 1992. The agency et al appealed that final order to the First District Court of Appeal, but dismissed the appeal on May 6, 1992. Any fees and costs associated with the rule challenge were disposed of in a November 23, 1992 Final Order of Dismissal entered in Silvia S. Ibanez v. Board of Accountancy DOAH Case No. 92-0427F and may not be recouped in the instant proceeding. Based on all the available evidence, 4/ the law firm of "Silvia S. Ibanez, P.A." also did not participate in the disciplinary case even as a legal representative of Ms. Ibanez, the individual, until after the recommended order was entered. The rule challenge case, DOAH Case No. 91-3336R, was heard on August 1-2, 1991. The disciplinary case, DOAH Case No. 91-4100, was heard on August 27, 1991. Pursuant to a stipulation during the formal hearing of the disciplinary case on August 27, 1991, on September 20, 1991, the parties designated items to be adopted into the record of the disciplinary case from the rule challenge case. For convenience, these items were copied and filed in the disciplinary case. 5/ Because the "holding out" rule had been held invalid, the disciplinary case was considered by the hearing officer to be a case of first impression. Because the "holding out" rule had been held invalid, only the statute utilizing the term, "holding out", was applied to one count of the disciplinary case. However, the other existing rules could still be applied as plead. The January 15, 1992 recommended order in DOAH (disciplinary) Case No. 91-4100 recommended finding Ms. Ibanez was not "holding herself out as a certified public accountant", finding her not guilty of all charges alleged under Counts I through III, and dismissing all counts. Contrary to the conclusions reached in the recommended order in the disciplinary case, the Board of Accountancy's final order found and concluded that Ms. Ibanez was guilty on all three counts and should be disciplined with a reprimand. Ms. Ibanez, in her individual name, appealed that final order to the Florida First District Court of Appeal, which per curiam affirmed the Board's final order by its judgment entered June 9, 1993. The United States Supreme Court granted a writ of certiorari and, after oral argument, issued its opinion in Ms. Ibanez' favor. That appellate case was also styled in her name, individually. By a June 13, 1994 order, the Supreme Court mandated the Florida First District Court of Appeal to act in conformity with the Supreme Court opinion. The First District Court of Appeal issued its own mandate to the Board on October 5, 1994. The Board issued its final order on remand on January 31, 1995. 6/ It is undisputed that Ms. Ibanez is the prevailing party in the underlying disciplinary case, DOAH Case No. 91-4100. Her petition which initiated the present fees and cost case was filed with DOAH on February 13, 1995 and is timely under Section 57.111 F.S. and Rule 60Q-2.035 F.A.C. It did not request an evidentiary hearing. The agency's February 28, 1995 response herein was timely. It disputes whether the Petitioner is a small business party; disputes the amount, rate, and reasonableness of the attorneys' fees claimed; and asserts that the agency's actions were substantially justified at the time the underlying disciplinary case was initiated. It does not specifically request an evidentiary hearing. 7/ By the failure of both parties to request an evidentiary hearing and to respond to the notice and order to show cause entered herein on June 28, 1995, they are deemed to have waived an evidentiary hearing in this cause. Without any supporting documentation, the petition asserts standing upon the following bare allegation: 12. Ibanez meets the prevailing party provisions of F.S. Section 57.111 and is a "small business" party, with her principal place of business in Orlando Florida. Ibanez has no employees other than herself. As of the date the state agency initiated this proceeding, Ibanez was the sole shareholder of her law firm professional association ("P.A.") and the P.A.'s net worth did not exceed $2,000,000.00. The petition alleges in conclusionary terms that the agency's actions were substantially unjustified and that no circumstances exist that would make an award of attorney's fees unjust, but no reason or argument is advanced in support of the allegation. The petition claims the following amounts as fees and costs: Petitioner incurred substantial legal fees and costs at the administrative and appellate levels, as explained below: Fees & Costs Holland & Knight $11,252.73 [Exhibit "H"] Moore, Hill & Westmoreland $13,822.50 [Exhibit "I"] Robert Shapiro, Esq. $ 8,563.50 [Exhibit "J"] Even after considering financial assistance to keep the case alive, Petitioner incurred in excess of $15,000 in attorney fees and costs. (Emphasis supplied) The language just emphasized does not provide any information as to which portions of the fees and costs, if any, constituted "financial assistance to keep the case alive." 8/ Ms. Ibanez' affidavit to the effect that the participation of co- counsel was required is attached to her petition, but her affidavit does not address the reasonableness of the fees claimed by each of the named law firms. Therefore, her affidavit does not meet the requirements of Rule 60Q-2.035(3) F.A.C. "Exhibit H" of the petition addresses the $11,252.73 claimed by Ms. Ibanez on behalf of Holland and Knight. That exhibit does not include the affidavit required by Rule 60Q-2.035 (3) F.A.C. Petitioner also filed an unauthorized "Supplement to Exhibit H" on February 28, 1995. See the Preliminary Statement, above. Although such "supplements" are not authorized by statute or rule and no order permitted it, the Supplement has been considered because it was filed within the 60 days provided by statute and rule for the filing of the original petition and Respondent has not objected to it or moved to strike. Unfortunately, the Supplement also does not include an affidavit executed by any attorney with Holland and Knight. 9/ "Exhibit I" of the petition addresses the $13,822.50 claimed by Petitioner on behalf of Moore, Hill and Westmoreland. It contains an affidavit of J. Lofton Westmoreland on behalf of "Westmoreland, Hook and Bolton, P.A," which substantially complies with Rule 60Q-2.035(3) F.A.C. While it is no small matter that there is a discrepancy in the firm names cited by Petitioner and Mr. Westmoreland, Respondent agency also has not raised this as an issue. Accordingly, the undersigned, being cognizant of the frequent shift and drift of law firm names, infers that regardless of which firm Mr. Westmoreland is now associated with, his affidavit applies to this case. 10/ Therefore, Mr. Westmoreland's affidavit has been considered and found sufficient on its face. This finding does not, however, validate all of the claimed fees and costs. 11/ "Exhibit J" of the petition addresses the $8,563.50 claimed by Petitioner on behalf of Robert Shapiro, Esquire. There is nothing signed by Mr. Shapiro, let alone an affidavit that meets the requirements of the applicable statute and rule. The breakdown provided shows Mr. Shapiro's fees are based on appellate work on the disciplinary case at the United States Supreme Court level, and that he has been paid portions thereof so that the balance owed is $2,300.00. The only cost listed is $28.50 in Federal Express charges. 12/ All the fees and costs claimed herein apply to the period after the recommended order in the disciplinary case and almost all apply after the commencement of the appeal process from the final order altering that recommended order. The courts have already ordered the Department of Business and Professional Regulation, Board of Accountancy to pay Ms. Ibanez $5,028.55 for the printing of the record and $300.00 as clerk's costs. These amounts do not seem to be broken out of the petition's supporting exhibits and none of the documentation provided with the petition discusses whether or not the appellate fees and costs claimed herein could have been requested before the courts and were not requested, were requested and denied, or were not available from the courts. There is an indication that some fees and costs were requested on appeal and denied by the courts, but there is no detail as to which fees and costs were claimed at the appellate level and there is nothing to show the legal reason for denial. Consequently, it is impossible to assess from the documentation provided which fees and costs are still to be decided on remand. 13/ Because the foregoing facts are dispositive of the petition, it is unnecessary to make further findings of fact on the issue of substantial justification vel non of the agency at the time the disciplinary action was initiated.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is ORDERED: The Petition for attorney's fees and costs is denied and dismissed. DONE AND ORDERED this 29th day of August, 1995, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 29th day of August, 1995.
The Issue The issues remaining to be resolved in this proceeding concern whether the above-named Petitioner is a "small business party" as described in Section 57.111(3)(d)1.a. b. and c., Florida Statutes (2007); whether the action of the above-named Agency in the underlying case was substantially justified in law and fact and whether an award of attorney's fees and costs would be unjust.
Findings Of Fact In the instant case the Respondent Agency (Department) does not dispute the amount of attorney's fees and costs sought in this proceeding and does not contest that the Petitioner is a prevailing party. Moreover, the Department admits that it was a real party in interest in the underlying proceeding involving the Administrative Complaint and was not merely a nominal party. The parties also waived an evidentiary hearing in this attorney fee proceeding. The parties, rather, submitted memoranda and affidavits in support of their respective positions. The present Petition for Attorney's Fees and Costs is based upon the above-referenced Administrative Complaint action brought against Wittmer and JR. Wittmer's Remodeling, Inc., by the Department, which came before the Division of Administrative Hearings by a request for formal hearing filed by Wittmer. Prior to filing that Administrative Complaint the Department performed an investigation related to the Complaint which had been filed by Kenneth Hatin of Palm Coast, Florida, against Wittmer. The Complaint by Hatin alleged that on August 10, 2005, he and Wittmer had entered into a contract for the building of an addition to the complainant's home in Palm Coast, Florida. Hatin had alleged and testified at hearing that Wittmer was unlicensed to perform the work under the contract and had been paid in excess of $30,000.00 for the project. Hatin maintained that Wittmer had abandoned the job before completion and that he had to hire another person or entity to complete the work, at further expense. The Department considered the results of its investigation, in the form of an investigative report, and considered the investigative file it had developed concerning Hatin's complaint. This included the original contract on JR. Wittmer's Remodeling, Inc.'s, stationary, signed by Wittmer, as well as copies of original checks amounting to approximately $30,000.00 written to Wittmer and/or his company or business. It also considered a copy of the local licensing records concerning Wittmer, revealing an expired occupational license, as well as records of the Department showing that Wittmer was unlicensed as any sort of contractor in the State of Florida. The Department also considered various invoices and receipts regarding the work contracted by complainant Hatin with another person or entity, to finish the job purportedly abandoned by Wittmer. During the investigation, the complainant and the complainant's fiancée were interviewed and made no mention of any familial relationship or friendship relationship between Wittmer and the complainant and his family members at the time of the investigation. Wittmer himself was interviewed by the investigator and did not mention any familial or personal relationship he had with the complainant or the complainant's family. The familial or friendship relationship between Wittmer and the complainant and the complainant's family only arose through the evidence adduced at the hearing. That evidence became a significant portion of the reason for the Findings of Fact and Conclusions which resulted in the Complaint against Wittmer being ultimately dismissed. JR. Wittmer's Remodeling, Inc., was dissolved by the State of Florida, Department of State, Division of Corporations on September 16, 2005, for failure to file required annual reports or Uniform Business Report. This fact was confirmed by Wittmer's affidavit submitted on January 18, 2008, in this proceeding, attesting that his corporation was dissolved and that it ceased business due to "financial hardship of the business." As a result of the hearing it was determined in the Recommended Order (with Findings of Fact adopted in the Final Order) that Wittmer performed work on the subject construction project without making any profit. It was performed, in essence, as a cooperative project between family and friends of Wittmer, in the sense that Wittmer's fiancée was related to the complaining witness's family and/or they were close friends. The circumstances established by preponderant evidence did not show that Wittmer was actually performing contracting, as defined in the above-referenced statutory authority underlying the charges in the Administrative Complaint. It was also determined, based upon the preponderant evidence at that hearing, that Wittmer made no profit on the project after paying all the subcontractors. The Department, in essence, adopted the Recommended Order of the Administrative Law Judge (with non-dispositive modifications of several Conclusions of Law) and entered a Final Order dismissing the charges in the Administrative Complaint. The subject Petition for Attorney's Fees and Costs was thereafter filed and this case ensued. The Department proceeded against Wittmer by naming as Respondents, in the underlying, case JR Wittmer's Remodeling, Inc., which corporation had actually already been dissolved at the time of the filing of the Administrative Complaint. It also named in that Complaint, and proceeded against, Willis Wittmer, Jr., personally. The Petitioners herein have established that Wittmer never had more than 25 full-time employees or a net worth in excess of two million dollars, whether functioning as JR Wittmer, Jr., an individual or as JR Wittmer's Remodeling, Inc. The Petitioner has also established that the construction contract at issue in the underlying case was entered into by the Petitioner herein under the name "JR Wittmer's Remodeling" and not "JR Wittmer's Remodeling, Inc." Moreover, that contact was not signed by Mr. Wittmer as president of JR Wittmer Remodeling, Inc. Aside from the fact that the Department filed the original Administrative Complaint against JR Wittmer Remodeling, Inc., it also named JR Wittmer individually as a Respondent in that Administrative Complaint, so he had defend against the action personally, regardless of the question of whether the corporation was in legal existence at the time of the filing of the Administrative Complaint. The evidence, as referenced above, shows that he met the requirements of having less than 25 full- time employees and a net worth of less than two million dollars. Thus, the totality of the evidence shows that Mr. Wittmer has standing, as the sole proprietor of an unincorporated business, to pursue the subject attorney's fee claim as a sole proprietor, even if not as a corporation or the president of the originally named, but now dissolved corporation. The Petitioner contends that the Department should have recognized the lack of a factual basis for the Administrative Complaint and, before finding probable cause, should have been able to determine that the construction arrangement between Wittmer and Hatin did not meet the legal definition of contracting or contracting services based upon the familial/friendship relationship of the protagonists. The Department, however, conducted a reasonable investigation and has been shown to have had a reasonable basis to determine, before hearing, that contracting and contracting services had been, in a legal sense, performed by Wittmer, based upon the results of its investigation (interviews, etc.). This is especially the case since Wittmer himself, when interviewed, had not revealed such exculpatory facts to the Department.
Findings Of Fact Terry G. Jewell is the sole proprietor of an unincorporated business, wherein Jewell engages in business as a real estate broker-salesman. His net worth is less than $2,000,000. In DOAH Case No. 87-2192, the Division filed an Administrative Complaint dated April 20, 1987, wherein the Division essentially alleged that Jewell was co-owner and agent for Sun Country Homes of North Florida, Inc., a corporation engaged in the business of constructing homes; that Jewell, as vice- president and agent for Sun Country Homes, entered into a contract with the Koblinskis to build their house; that Sun Country Homes received approximately $74,900.00 to build the home; that Sun Country Homes did not pay certain materialmen and contractors; and that Jewell did not pay the outstanding liens. The Division sought revocation and other penalties against Jewell's license as a real estate broker-salesman, alleging that Jewell was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction. After hearing, a Recommended Order was entered by the undersigned on September 25, 1987, recommending dismissal of the Administrative Complaint. The recommendation was based on findings that Jewell's contacts with the Koblinskis were solely as an officer, co-owner and agent for Sun Country Homes of North Florida, Inc.; that all sums paid by the Koblinskis were to Sun Country Homes and were deposited to its corporate account; that the president of Sun Country Homes mismanaged the corporate funds and did not pay some of the subcontractors on Koblinskis' home, that Jewell quit the corporation then he found out about this; that Jewell did all he could to assist the Koblinskis once he had resigned from the corporation; that the president of the corporation disappeared with the Koblinskis' money; and that Jewell did not benefit from the funds paid by the Koblinskis to Sun Country Homes of North Florida, Inc. The recommendation was based on conclusions of law that the contract was between the Koblinskis and Sun Country Homes of North Florida, Inc.; that Jewell had no intent to deceive the Koblinskis; that it is well settled law that disciplinary action cannot be taken against a real estate broker's license for conduct not connected with the licensee's business as a broker; and that Jewell did not violate Section 475.25(1)(b), Florida Statutes, as alleged. The Final Order of the Division, through the Florida Real Estate Commission, adopted the Findings of Fact, Conclusions of Law and Recommendation in the Recommended Order and dismissed the Administrative Complaint. The affidavit which initiated this action was filed on February 5, 1988, and was later supplemented by the Petition for Small Business Party's Attorney's Fees and Costs. The affidavit, which was an application for an award of fees and costs, was timely, having been filed within 60 days after the date on which Jewell became a prevailing small business party. In this case, the 60 days is calculated from the date on the Certificate of Service showing mailing of the Final Order to the parties. See Section 57.111(4)(b)2, Florida Statutes. According to the affidavit of William C. Andrews, and the statements of account attached thereto, Jewell incurred legal fees of $3,252.50 and costs of $957.21. These fees and costs are found to be reasonable since the Division has not filed a counter affidavit or response questioning their reasonableness. According to the Petition, the disciplinary action in DOAH Case No. 87- 2192 was substantially unjustified at the time it was initiated: because the Administrative Complaint was an attempted disciplinary action taken against Petitioner's real estate broker-salesman's license for conduct not connected with the licensee's business as a broker-salesman, and there was a complete absence of evidence to show any wrong doing on the part of the Petitioner.
The Issue The issue is whether Petitioner is entitled to certification as a minority business enterprise.
Findings Of Fact By application dated February 6, 1998, Petitioner requested certification as a minority business enterprise. Respondent received the application on May 20, 1998, and denied the application on July 31, 1998. In denying the application, Respondent cited several reasons, including various rules, for why it was denying Petitioner's request for minority business certification. The letter cites Rules 38A-20.001(8) (statutory definition of "minority business enterprise") and (15) (lack of real control); and 38A-20.005(2) (ownership tests) and (3)(a) (control subject to restrictions), (b) (determining quorum of board of directors), (c) (minorities must be sufficiently capable and responsible to maintain control), and (d) (control may not be distributed among non-minority family members so that minority lacks dominant responsibility for management and daily operations, including purchase of inventory and equipment and financial control). Respondent does not dispute that Darlene S. Maki is a minority--i.e, female--and that Petitioner is a "small business concern." The application discloses that Petitioner is a Florida corporation in business as a machine shop. The application discloses that the only minority associated with the corporation is Ms. Maki, who at all times has owned 51 percent of the stock and serves as the president and treasurer. Initially, Mr. Maki's husband owned 14 percent of the shares; Mr. Rodhe owned 12.5 percent of the shares; Ms. Maki's other son, Michael Gritton, owned 12.5 percent of the shares; and Ronald Maki owned 10 percent of the shares. The application states that the initial board of directors consisted of three persons: Ms. Maki; her husband, Mark Maki; and one of Ms. Maki's sons, Randy L. Rodhe. In fact, the original board of directors consisted of Ms. Maki, her husband, her two sons, and Ronald Maki, the brother of Ms. Maki's husband. Petitioner is a family-owned and -operated business. Originally, Ms. Maki's husband served as vice-president, and Mr. Rodhe as secretary. The owners have had varying degrees of involvement in the corporation, ranging from Ms. Maki, who has been most involved, to Ronald Maki, whose involvement has been limited to his initial investment of $25,000. The only other persons to contribute cash for their shares were Ms. Maki and her husband. According to the application, Ms. Maki contributed $18,500, and her husband contributed $8000. The application understates their cash contributions. Individually, Ms. Maki contributed $32,000 in cash, which she raised by liquidating her Section 401(k) plan ($20,000) and bonds ($12,000). Individually, Ms. Maki's husband contributed $8000 in cash. Jointly, Ms. Maki and her husband contributed another $60,000 in cash, consisting of $30,000 in loan proceeds from a mortgage on their jointly owned home and $30,000 in charges on their joint credit cards. Prior to incorporating Petitioner in August 1997, Ms. Maki, who is 56 years old, had 20 years' experience working in a machine shop operating noncomputerized drill presses. She also worked five years as an assistant vice-president of a bank, supervising mortgage loan operations. Although Ms. Maki does not know how to operate the newer computer-assisted machines, her background would permit her to learn to do so with minimal training. However, due to a progressively debilitating disease that struck her in 1989, Ms. Maki is confined to a wheelchair and lacks feeling in her hands. Thus, she cannot efficiently operate the older manual machines or newer computer-assisted machines used in machine shops. Ms. Maki's husband lacks any experience in machining tools. He has worked over 25 years as an automobile mechanic. His brother has no experience in machining tools; he is in the construction business in Miami. Ms. Maki's sons have considerable experience in machining tools, including training and 14 and 20 years' experience in using the newer, more complicated computer-assisted equipment, which Petitioner owns. They received their stock in return for their agreement to work for wages well below what they could have earned elsewhere. Given the minimal cash flow and concerns about jeopardizing her Social Security disability payments, Ms. Maki did not withdraw money from Petitioner. However, her husband received a salary of an undisclosed amount until September 1998. Her sons also received a salary, but only about $100 weekly, mostly to cover their expenses. In May 1998, Mr. Rodhe terminated his involvement with Petitioner. At that time, he transferred his stock to Petitioner, apparently without any payment to him. The effect of this transfer was to increase Ms. Maki's percentage ownership of Petitioner. At the time of Mr. Rodhe's departure, his brother replaced him as secretary, and the board of directors were reduced to four members. These are the present officers and directors of Petitioner. Pursuant to the articles of incorporation, the board of directors directs the affairs of Petitioner. Nothing in the articles of incorporation overrides the provisions of Section 607.0824(1), Florida Statutes, which provides that a majority of directors constitute a quorum, or Section 607.0808(1), Florida Statutes, which provides that the shareholders may remove directors without cause. Ms. Maki and her husband are each authorized signatories of checks drawn on Petitioner's checking account. Each check requires only one signature. However, Mr. Maki does not typically sign the checks, consistent with his relatively little involvement with Petitioner. Someone at the bank suggested to Ms. Maki that Petitioner should authorize her husband to sign checks in case anything happened to Ms. Maki. Ms. Maki and her husband are the guarantors on a lease for a major piece of equipment used by Petitioner. In a later lease, the lender allowed only Ms. Maki to sign as a guarantor. Business has slowly been building. In July 1998, Petitioner hired a machinist and purchased another machine. When confronting a major decision, such as purchasing a new machine, Ms. Maki presents the issue to the board of directors, which then makes the decision. Ms. Maki solely handles hiring, firing, payroll, purchasing material, bidding, and scheduling jobs. She is present at the shop every workday from 7:30 AM to 4:30 PM and supervises all of the activities in the shop.
Recommendation It is RECOMMENDED that the Minority Business Advocacy and Assistance Office enter a final order denying Petitioner's application for certification as a minority business enterprise. DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 January, 1999. COPIES FURNISHED: Darlene Maki Qualified Representative RGM Precision Machine, Inc. 18923 Titus Road Hudson, Florida 34667 Joseph L. Shields Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Mary B. Hooks Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue The issue is whether Petitioner Michael A. Crane, d/b/a Accent Builders of Florida, Inc., is entitled to an award of attorney's fees against Respondent, Department of Business and Professional Regulation, pursuant to Section 57.111, Florida Statutes.
Findings Of Fact On October 14, 2005, Petitioner filed a Motion for Reimbursement of Attorney's Fees and Costs. Petitioner seeks reimbursement of attorney's fees and costs incurred in DOAH Case No. 04-4040PL, pursuant to Section 57.111, Florida Statutes. Petitioner is the prevailing party in the underlying proceeding, DOAH Case No. 04-4040PL. On September 23, 2005, the Construction Industry Licensing Board entered its Final Order in the underlying case, in which it adopted the Recommended Order entered in the DOAH proceeding, thereby dismissing the charges that Petitioner had violated certain provisions of Chapter 489, Florida Statutes. In the underlying proceeding, Respondent charged Michael A. Crane with violations of Chapter 489, Florida Statutes, in his capacity as a certified general contractor holding Florida license No. CGC8644. Petitioner had entered into the contract which gave rise to the underlying proceeding as Accent Builders of Florida, Inc. (Accent). Respondent's disciplinary action was not directed at Accent Builders of Florida, Inc., but at Petitioner as the qualifying agent for the company. Petitioner is not a sole proprietor of an unincorporated business. Petitioner is neither a partnership nor a corporation. Petitioner does business in Florida as Accent, but at the time the underlying proceeding was initiated, Petitioner had not applied for and been granted a certificate of authority for Accent through himself as the qualifying agent. In September 2004, while the underlying proceeding was pending, Petitioner applied for and was granted a certificate of authority for Accent with Michael A. Crane as the qualifying agent. Despite the fact that Petitioner was granted a certificate of authority for Accent, the underlying proceeding was brought against the certified general contractor, Michael A. Crane, not against Accent as a corporate entity. In order to determine whether the underlying action brought by Respondent against Petitioner was substantially justified at the time it was initiated by the Agency, the information that was before the probable cause panel that directed the filing of the Administrative Complaint must be examined. In the underlying matter giving rise to Petitioner's request for attorney's fees, the Probable Cause Panel had before it a 188-page Investigative Report, as well as three supplemental Investigative Reports related to the alleged defects in the construction performed by Petitioner. The Probable Cause Panel convened on April 27, 2004, at which time it made a finding of probable cause that Petitioner had violated Subsections 489.129(1)(g)1., (i), (k), and (m), Florida Statutes. The panel members reported that they had reviewed the investigative reports and draft complaints, and were advised by a member of the Attorney General's staff regarding their responsibilities in determining whether probable cause existed to file an Administrative Complaint against Petitioner. The consumer complaint accompanying the Investigative Report alleged that the contractor did not properly supervise the project; that the construction has resulted in numerous leaks; that the steam shower was not installed as required by the manufacturer; that the decking was not installed according to the manufacturer's instructions; and that most of the punch list items had been left unaddressed. The Investigative Report also contained Petitioner's response, which stated that Petitioner was precluded from correcting the deficiencies by the consumer, and that, although responsive to the consumer regarding the leaks, Petitioner saw no damage as a result of the leaks. The Investigative Report contained numerous documents describing the efforts of contractors hired by the consumer to remedy the leaks and alleged defects in construction. The report also included documentation of payments made by the consumer to the various contractors called in to eliminate the problems the consumer was experiencing. The Probable Cause Panel's review of the materials before it resulted in a determination that a reasonable investigation had been conducted, and that a reasonable person could conclude that sufficient evidence existed to charge Petitioner with violations of Chapter 489, Florida Statutes. At the time the Probable Cause Panel reviewed the Investigative Report, it appeared that Petitioner's work had resulted in water damage, and that a valid subcontractor's lien had been placed against the consumer's property resulting in financial harm. The Probable Cause Panel's determination to direct Respondent to file an Administrative Complaint had a reasonable basis in law and fact at the time it was made. Respondent was not a "nominal party" to the underlying proceeding according to the meaning of that term in Subsection 57.111(4)(d)1., Florida Statutes.
Findings Of Fact On January 16, 1987, Department of Health and Rehabilitative Services notified J. S. By letter that it had received a report of neglect regarding him and advised him of his right to request the report be amended or expunged. J. S. did so but on February 26, 1987, the Department advised him his request for expungement had been denied. Thereafter, J. S. requested a formal hearing which was held by the undersigned on October 27, 1987. After a full, formal hearing on the merits, at which both testimony and documentary exhibits were presented by both parties, the undersigned, on December 1, 1987, entered a Recommended Order in which it was found, as a matter of fact, that while the alleged victim of the neglect was incapable of totally caring for himself, the evidence presented was insufficient to establish that the relationship between the victim and J. S. was a care-giving one or that J. S. had the responsibility to look out for the victim so as to bring him within the purview of the statute. The Department thereafter entered a Final Order consistent with the Recommended Order, amending the classification of the report to "unfounded" and expunging it from the Department records. Evidence introduced at the original formal hearing held herein established that J. S. was an employee, (resident manager) at the Royal Palm Retirement Home in Ft. Myers, Florida. He was not the owner of the facility nor was any evidence introduced to indicate he had any financial interest, other than as an employee, in the facility. Further, he was not engaging in the professional practice of a licensed profession. His relationship with the alleged victim was found to be no more than that of landlord-tenant. The Department's investigation of the alleged neglect, while not completely comprehensive, nonetheless was sufficiently thorough to meet the test of reasonableness.
Findings Of Fact On October 5, 1989, Respondent filed an Order to Show Cause seeking to take disciplinary action against the certification of authority issued to Petitioner, The Administrators Corporation, and the insurance licenses issued to Petitioner, Charles N. Zalis. Petitioners timely requested a formal hearing, and the case was transferred to the Division of Administrative Hearings for the conduct of a formal hearing regarding the allegations contained in that Order to Show Cause. Upon receipt, the matter was assigned DOAH Case No. 89-5981. The final hearing in that disciplinary matter was conducted on May 14, 1990. Thereafter, a Recommended Order was entered on July 9, 1990, recommending to Respondent that a final order be entered finding Petitioners not guilty of the allegations contained in the Order to Show Cause and dismissing the Order to Show Cause filed against them. None of the parties filed exceptions to the Recommended Order. On August 15, 1990, the Treasurer and Insurance Commissioner entered a Final Order adopting in full the Findings of Fact, Conclusions of Law, and Recommendation contained within that Recommended Order; finding the Petitioners not guilty of the allegations contained in the Order to Show Cause filed against them, and dismissing the Order to Show Cause. On September 21, 1990, Petitioners filed with the Division of Administrative Hearings their Petitions for Costs and Fees, pursuant to Section 57.111, Florida Statutes, and Rule 221-6.035, Florida Administrative Code. On September 27, 1990, an Initial Order was entered in each of the above-captioned causes. The Initial Order is a form order automatically prepared by the Clerk's Office and signed by the Director of the Division of Administrative Hearings in every case filed with the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes, except for those proceedings conducted on an expedited basis pursuant to statutory directives. The Initial Order advises the parties as to the name of the Hearing Officer assigned to hear the matter, provides certain procedural information, and solicits specific information from the parties so that the matter can be scheduled for an evidentiary hearing appropriately. On October 8, 1990, Respondent filed a joint Response to Initial Order on behalf of all parties, and on October 10, 1990, Respondent filed a joint Amended Response to Initial Order on behalf of all parties in this proceeding. The Amended Response to Initial Order advised that the parties had agreed that the final hearing should be scheduled for one day during the month of February, 1991, in Tallahassee. Pursuant to the agreement of the parties regarding the scheduling of the evidentiary hearing in this cause, on October 19, 1990, these causes were consolidated sua sponte, and a formal hearing was scheduled in these consolidated causes for February 14, 1991, in Tallahassee, Florida. No response by Respondent to either the Petition for Costs and Fees filed by The Administrators Corporation or the Petition for Costs and Fees filed by Charles N. Zalis has ever been filed in this cause even in the face of the Motion for Summary Final Order based upon Respondent's failure to respond. Accordingly, this matter is decided on the basis of the petitions filed in these consolidated causes, together with the documentation attached to those petitions, Petitioners' Motion for Summary Final Order, together with the documentation attached to that motion, and Respondent's Response to Motion for Summary Final Order. Since the Respondent has failed to controvert or dispute any of the factual allegations contained within those pleadings, there is no factual allegation in dispute in these consolidated causes. Petitioners are small business parties as defined by Section 57.111, Florida Statutes. By virtue of the Final Order entered in DOAH Case No. 89- 5981, Petitioners are prevailing small business parties in an administrative proceeding pursuant to Chapter 120 initiated by a state agency. The actions of Respondent both in initiating and in pursuing the Order to Show Cause filed in DOAH Case No. 89-5981 were substantially unjustified, and no special circumstance exists which would make unjust the award of attorney's fees and costs to Petitioners in these consolidated causes. The itemized affidavits filed in these consolidated causes reveal the nature, extent, and monetary value of the services rendered by Petitioners' attorneys, as well as the costs incurred in the underlying proceeding. Petitioners incurred attorney's fees in the amount of $49,581.25 and costs in the amount of $7,351.72 in the underlying administrative proceeding. The amounts of attorney's fees and costs claimed by Petitioners are reasonable and necessary. The Department of Insurance and Treasurer was not a nominal party only in the underlying administrative proceeding. Petitioners filed their Petitions for Costs and Fees within 60 days after the date that they became prevailing small business parties.
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.
