The Issue Is Petitioner entitled to certification as a Minority Business Enterprise pursuant to Rule 38A-20.005, Florida Administrative Code?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On February 12, 1998, Teddy L. Serdynski and Janice A. Serdynski entered into a Partnership Agreement which in pertinent part provides as follows: NAME: The name of the partnership shall be known as "Ted's Auto Parts." PURPOSE: The purpose of the partnership shall be the operation of an automobile parts business and related enterprises. * * * COMMENCEMENT: The partnership shall officially commence upon execution of this agreement. DURATION: The partnership shall continue until dissolved, either by the parties or by legal proceedings, or by liquidation. CAPITAL: The capital of the partnership shall be contributed in amounts equalling 51% by JANICE A. SERDYNSKI and 49% by TEDDY L. SERDYNSKI, thereby granting to the said JANICE A. SERDYNSKI the controlling interest of said partnership. WITHDRAWAL: No partner shall withdraw any invested capital without the consent of the other partner. CAPITAL GAINS AND LOSSES: Capital gains and losses shall be shared in a proportionate amount of their investment and ownership interest. * * * MANAGEMENT: Although JANICE A. SERDYNSKI is the owner of a controlling interest in the partnership, each shall have equal voice in the management of the affairs of the partnership. Both parties shall administer to the general affairs of the partnership and shall carry out and put into effect the general policies and specific instructions of their decision on any given matter. BANK ACCOUNTS: The partnership shall maintain checking and other accounts in such bank or banks as the partners shall agree upon. Withdrawals and writing of checks on the partnership account may be done jointly and/or singly. PROFITS AND LOSSES: The partners shall share in accordance with their ownership interest in the profits and losses. . . . LIMITATIONS ON PARTNER: No partner, without the consent of the other partner, shall borrow money in the partnership name for partnership purposes or utilize collateral owned by the partnership as security for such loans, assign, transfer, pledge, compromise or release any of the claims or debts due to the partnership except on payment in full; consent to the arbitration of any dispute or controversy of the partnership; transfer firm assets; make, execute or deliver any assignment for the benefit of creditors; maker, execute or deliver any bond, confession of judgment, guaranty bond, indemnity bond, or surety bond or any contract to sell, bill of sale, deed, mortgage, lease relating to any substantial part of the partnership assets or his/her interest therein; or engage in any business or occupation without the consent of the other partner. * * * 17. DISPUTES: That the parties agree that all disputes and differences, if any, which shall arise between the parties, shall be referred to and decided by two indifferent, competent persons in or well acquainted with the trade, one person to be chosen by each party, or to submit to arbitration by a recognized arbitration service, and his/her or their decisions shall, in all respect, be final and conclusive on all parties. Ted's Auto Parts was a sole proprietorship from May 1, 1985 until February 11, 1998. From May 1, 1985, until February 11, 1998, Janice A. Serdynski shared ownership in Ted's Auto Parts equally with her husband, Teddy L. Serdynski, a non- minority. Janice A. Serdynski does not share income from Ted's Auto Parts commensurate with her 51 percent ownership. Decision-making, withdrawal of funds, borrowing of money, and the day-to-day management of Ted's Auto Parts are shared equally between Janice A. Serdynski and Teddy L. Serdynski. Ted's Auto Parts is a family operated business with duties, responsibilities, and decision-making occurring jointly, and, at time, mutually among family members. Both Janice A. Serdynski and Teddy L. Serdynski are authorized to sign checks on the account of Ted's Auto Parts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it recommended that the Department enter a final order finding that Petitioner has failed to meet the requirements for Minority Business Enterprise certification and dismiss the petition filed by Petitioner. DONE AND ENTERED this 22nd day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd of March, 1999. COPIES FURNISHED: Douglas I. Jamerson. 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 Janice A. Serdynski Ted's Auto Parts 190 Second Avenue, South Bartow, Florida 33830 Joseph L. Shields, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189
The Issue The issue is whether Petitioner is entitled to certification as a minority business enterprise.
Findings Of Fact By undated application, Petitioner filed an Application for Minority Business Enterprise Certification. Stating that the applicant was established in November 1991, the application lists as the sole shareholders Hui Schaefer (a/k/a Gina Schaefer), who is a Korean-American minority, and her husband, Reid, who is a nonminority. The application was filed in July 1995. The application states that Ms. Schaefer is an Asian female owning 81 percent of the shares. The application lists Ms. Schaefer as the chief executive officer, secretary, and treasurer, Mr. Schaefer as the president, and Gordon Holfelder as the vice-president. The application lists these three persons as directors, plus DuWayne Boudin and Lenny LaRose. Except for Ms. Schaefer, the directors are nonminorities. Petitioner's bylaws provide for management of the business and property by a majority of the directors. The articles of incorporation provide similarly. Petitioner claimed at the final hearing that she had fired all of the directors except herself, but she produced no documentary proof of this action. Mr. and Ms. Schaefer purchased all of the stock of Petitioner in 1991. At the time of purchase, Ms. Schaefer received 500 shares and Mr. Schaefer received 400 shares. The sole purpose of this allocation was to enable the corporation to qualify as a minority business enterprise. The sole consideration for the shares was the forgiveness of about $6000 in debt. Mr. and Ms. Schaefer had lent this sum to Petitioner or its parent corporation, Unidyn Corp., so it could pay operating expenses, such as a telephone bill. Upon acquiring the shares, Mr. and Ms. Schaefer contributed capital to Petitioner in the form of furniture and equipment, which they value at $100,000. The evidence does not indicate that Mr. or Ms. Schaefer possessed any disproportionate interest in the $6000 loan, equipment, or furniture. To the contrary, it appears that their interests were equal in the money and assets. Petitioner is in the computer software business. Specifically, at the time of the application, Petitioner was a value-added retailer of computer programs. Petitioner purchased software programs from developers, customized the programs for end users, and resold the program to the end user with a commitment to provide technical support and training. Mr. Holfelder is a computer programmer. Mr. Schaefer is a sales representative. Ms. Schaefer is an office manager. At the time of the application, Petitioner employed nine fulltime permanent employees and earned over $800,000 in the fiscal year ending in 1993. At all material times, the compensation of Mr. Schaefer or Mr. Holfelder at least doubled the compensation of Ms. Schaefer. For calendar year 1995, their salaries were set at $60,000, while Ms. Schaefer's was set at $30,000, which was the same paid to Mr. LaRose. The other director listed on the application, Mr. Boudin, was set to earn $48,000 for 1995. The malleability of salaries in response to the requirements of government programs is reflected by Petitioner's explanation why Mr. Schaefer's salary is greater than Ms. Schaefer's salary. In a latter to Respondent dated August 30, 1995, Petitioner explained that the Schaefers were trying to refinance a home mortgage and "[s]everal of the mortgage companies suggested that it would be much easier to approve a VA mortgage if the husband and veteran, Reid Schaefer, had the highest salary." Ms. Schaefer has little technical experience in software programming. She could provide some technical support to customers for programs with which she was familiar as an end user, but she generally was not involved with the technical end of Petitioner's business. Ms. Schaefer's actual authority over corporation management was quite limited in practice. Hiring and firing authority is divided into departments with persons other than Ms. Schaefer responsible for such personnel decisions in the crucial areas of programming and marketing. Mr. Schaefer is responsible for purchasing. Even Ms. Schaefer's involvement in internal bookkeeping is subordinated to Mr. LaRose, who is Petitioner's in-house accountant. Mr. Boudin handles customer training and assists in sales. Ms. Schaefer signed most of the checks, but appeared to do so at the direction of others. She was not the sole person authorized to sign checks drawn on any of Petitioner's accounts, all of which authorized checks to be signed by a single authorized signer. At the end of 1994, shares were redistributed, leaving Ms. Schaefer with 500 shares, Mr. Schaefer with 100 shares, and Mr. LaRose, Mr. Holfelder, and Mr. Boudin with five shares each. Later, Petitioner issues one share to Brian Risley, a systems installer. These transactions left Ms. Schaefer with 81 percent of the issued shares of Petitioner. Later transactions left her with an even greater percentage of the stock; Petitioner repurchased the shares owned by Mr. Schaefer and Mr. Holfelder, and Ms. Schaefer acquired an additional 89 shares. Petitioner repurchased Mr. Holfelder's shares in connection with her termination in January 1996. By that time, Petitioner had transformed from a value-added retailer to custom applications, designing software programs from scratch. Ms. Schaefer does not control Petitioner either in ownership or operation.
Recommendation It is RECOMMENDED that the Commission on Minority Economic and Business Development enter a final order denying Petitioner's application for certification. DONE and ENTERED on April 29, 1996, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 29, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1: rejected as unsupported by the appropriate weight of the evidence. 2-3 and 6: rejected as legal argument. 4: rejected as unsupported by the appropriate weight of the evidence and subordinate. 5: adopted or adopted in substance except as to implication that Ms. Schaefer controls the business. 7: rejected as not finding of fact. 8-9: rejected as recitation of evidence. 10 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 10 (remainder): rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 11: rejected as speculative and unsupported by the appropriate weight of the evidence. 12: rejected as speculative. 13: rejected as subordinate. 14 (first sentence): adopted or adopted in substance. 14 (remainder): rejected as irrelevant. 15: rejected as subordinate. 16: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 17: rejected as unsupported by the appropriate weight of the evidence and recitation of evidence. 18-19: rejected as unsupported by the appropriate weight of the evidence. 20: rejected as unsupported by the appropriate weight of the evidence. 21 (first sentence): adopted or adopted in substance. 21 (remainder): rejected as unsupported by the appropriate weight of the evidence. 22: rejected as unsupported by the appropriate weight of the evidence and subordinate. 23: rejected as legal argument. 24: rejected as unsupported by the appropriate weight of the evidence, subordinate, and legal argument. 25-26: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1: adopted or adopted in substance except for subsequent transaction, which does not alter findings. 2: adopted or adopted in substance. 3: adopted or adopted in substance except for presence of additional nonminorities. 4-8: adopted or adopted in substance. 9-10: rejected as subordinate and recitation of evidence. 11-14: adopted or adopted in substance. 15: adopted or adopted in substance except that such personnel decisions are divided into three areas with different persons in charge of each area. 16-17: adopted or adopted in substance except that the illustrations are rejected as subordinate and recitation of evidence. COPIES FURNISHED: Veronica Anderson, Executive Administrator Commission on Minority Economic and Business Development Collins Building, Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000 Joseph Shields, General Counsel Commission on Minority Economic and Business Development Collins Building, Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000 Kurt A. Streyffeler Kurt A. Streyffeler, P.A. 3440 Marinatown Lane, Northwest Suite 205 North Fort Myers, Florida 33903
The Issue The issue is whether Petitioner's application for licensure as a real estate sales associate should be denied on the ground set forth in the Florida Real Estate Commission's April 4, 2011, Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On or about December 7, 2010, Petitioner filed an application for licensure as a real estate sales associate with the Department of Business and Professional Regulation, Division of Real Estate ("Division"). On that application, he answered in the affirmative to question number one of the Background Questions. Question number one states, in pertinent part, "Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction, or are you currently under criminal investigation?" The application requires any applicant who answers "yes" to question number one to "provide the full details" of any criminal conviction, including the nature of the charges, outcomes, sentences and/or conditions imposed, and the dates, name, and location of the court and/or jurisdiction in which any proceedings were held. In his explanation for answering "yes" to question number one, Petitioner listed three offenses. All three were violations of former section 831.05, Florida Statutes (2003), "Vending goods or services with counterfeit trademarks or service marks."1/ The violations occurred in Miami-Dade County on February 2, 2002, January 16, 2003, and June 12, 2003. For the first offense, Petitioner stated that he received "suspended sentence/adjudication withheld/restitution ordered." Petitioner reported that the other two cases were combined into one prosecution resulting in a sentence limited to four months' time served, a probation of two years, and the provision of restitution. Petitioner described his offenses as follows: "As a merchant, I advertised and sold name-brand, imitation watches to customers willing to buy said merchandise. Consequently, I was monitored, arrested and charged for said activity." Information obtained by the Division from the Florida Comprehensive Case Information System ("CCIS") indicated that on March 28, 2002, the court withheld adjudication on Petitioner's first charge of vending goods with counterfeit labels. On September 17, 2003, Petitioner was adjudicated guilty of three counts of battery upon a law enforcement officer, one count of resisting an officer without violence, and one count of vending goods with counterfeit labels. On November 25, 2003, Petitioner was again adjudicated guilty of vending goods with counterfeit labels. By letter to Petitioner, dated December 21, 2010, the Division requested additional information from Petitioner regarding his answer to question number one. More specifically, the Department's criminal background check of Petitioner revealed other undisclosed offenses. The Division's letter stated as follows, in relevant part: . . . Please provide documentation for the following item: March 25, 1989/ Carrying a Concealed Weapon/ Miami-Dade Police Department February 3, 1990/ Assault-Batt Domestic/ Miami-Dade Police Department February 13, 2004/ Counterfeiting-BW Vending Goods with Forged Counterfeit Label/ Miami-Dade Police Department. Petitioner responded by letter dated January 18, 2011, which stated as follows in relevant part: . . . [Y]ou asked for documentation and details on the following items: March 25, 1989/Carrying a Concealed Weapon/Miami-Dade Police Department. February 3, 1990/Assault-Batt Domestic/Miami-Dade Police Department. February 13, 2004/Counterfeiting-BW (i.e., Bench Warrant) Vending Goods with Forged Label/MDPD. Re:#1-- This incident was over two decades ago and my specific recollection may not be exact. . . but I believe it was an arrest caused by my harmlessly carrying a concealed weapon (type not recalled) with no connection to violence or threat or accusation of violence. (Please note that for most of the last 25 years, I possessed a CWP in one of two states). I also tend to believe the charge/case was disposed without penalty. I am writing to the Miami-Dade Clerk of Courts for a copy of their record of this incident and will forward the same to your office within 2-3 weeks. Re:#2-- Likewise, this incident was over two decades ago and my specific recollection may not be exact. . . but I believe it was an arrest stemming from a verbal quarrel between I and my ex-wife, who subsequently made a partially-false complaint to the police. I also tend to believe that the charge/case was dismissed for "lack of prosecution"/ cooperation (on her part). Again, I am writing to the Miami-Dade Clerk of Courts for a copy of their record of this incident and will forward the same to your office upon receipt (estimated timeframe: 2-3 weeks). Re:#3-- I do have clear recollection and documentation of this incident. . . It was an arrest caused by a Bench Warrant ("BW") enforced during a routine traffic stop. Specifically, this Warrant originated from my then Probation Officer for "Violation of Probation" for alleged Failure to Meet Probation Conditions of scheduled Fine/Restitution Payments connected to a prior case (#FO31585-- already reported and documented to your office). The out-come being that the "Probation Warrant" was "quashed" (discharged) upon request by my Defense Counselor and the Probation Conditions were "Modified" to accommodate my financial limits. (Please find the pertinent Arrest Affidavit and court reporting document, enclosed).... Petitioner never followed up with the promised information regarding his 1989 arrest for carrying a concealed weapon or his 1990 arrest for domestic violence. The Commission considered Petitioner's application at its regularly scheduled meeting on March 16, 2011, and voted to deny the application. In its Notice of Intent to Deny, the Commission made four factual findings: Petitioner's complete criminal record was not revealed in his application; Petitioner's testimony or evidence in explanation and/or mitigation was unpersuasive; Petitioner's criminal history shows a pattern and practice of criminal behavior over an extended period of time; and Petitioner has not had sufficient time free of government supervision to establish rehabilitation. Those findings of fact led the Commission to make the following conclusions of law: Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in any business transaction. 475.25(1)(b), 475.181, F.S. Convicted or found guilty or entered a plea of nolo contendere to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. 475.25(1)(f), 475.181 F.S. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. At the hearing, Petitioner testified that he should not be held liable for failing to disclose his full criminal record at the time of his application. He stated that he had forgotten the 1989 concealed weapons charge and the 1990 domestic battery offense. When the Division requested more information about these offenses, he promptly provided everything he could recall and undertook to obtain further information from the Miami-Dade Clerk of Courts. Petitioner stated that he in fact obtained that information and provided it to the Division. He did not understand why the information did not appear in the Division's files. Petitioner did not have the information with him at the time of the hearing. Petitioner contested the Commission's conclusions regarding the elements of fraud, misrepresentation, and dishonest dealing as they attached to his multiple arrests and convictions for violations of section 831.05(1)(a), Florida Statutes (2003), which provided: Whoever knowingly sells or offers for sale, or knowingly purchases and keeps or has in his or her possession, with intent that the same shall be sold or disposed, or vends any goods having thereon a forged or counterfeit trademark, or who knowingly sells or offers for sale any service which service is sold in conjunction with a forged or counterfeit service mark, of any person, entity, or association, knowing the same to be forged or counterfeited, shall be guilty of the crime of selling or offering for sale counterfeit goods or services, punishable as follows: If the goods or services which the offender sells, or offers for sale, have a retail sale value of $ 1,000 or more, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Petitioner introduced evidence that credibly supported his contention that he was selling imitation Rolex watches, but that he was not attempting to fool anyone into believing the watches were genuine Rolex products. Petitioner advertised his products in the "South Florida Bargain Trader," with photographs and text that referred to the watches as "Swiss replicas" and offered them for "under $500," far less than the price of a genuine Rolex. Petitioner contended that he intended to fool no one, and that the only person harmed by his activities was the representative of Rolex USA, Inc., who was the complaining witness in each of his cases. Petitioner's contention is less than convincing for two reasons, the first being that it has been expressly rejected by a Florida appellate court. In Stern v. State, 739 So. 2d 1203 (Fla. 4th DCA 1999), the court held that a disclaimer as to the genuineness of the article for sale did not constitute a valid defense to the charge of selling counterfeit goods or services under section 831.05(1)(a): In his third issue on appeal, Stern contends that the trial court erred by failing to give a requested jury instruction on a defense. Stern was charged with violating section 831.05(1)(a), Florida Statutes (1995), which makes it a crime to sell goods bearing a forged or counterfeit trademark with a retail value of $ 1,000 or more. The underlying basis of any statute prohibiting trademark infringement is the avoidance of confusion in the marketplace. See Great S. Bank v. First S. Bank, 625 So. 2d 463, 464 (Fla. 1993). In the factual context of this case, the crime consists of two statutory elements, which are: Goods were sold, offered for sale, or vended having a forged or counterfeit trademark, and Goods had a retail value of $1,000 or more. See § 831.05(1)(a), Fla. Stat. Case law adds a third element, which is that use of the trademark was likely to cause customer confusion in the market place. See Great S. Bank, 625 So. 2d at 469. Regarding the third element of the crime, Stern contended at trial that conspicuously displaying large disclaimer signs at his booth stating that his sunglasses were look- a-likes was a defense to the crime, and he requested that the following instruction be given to the jury: In the event that you find that the Defendant's use of forged or counterfeit trademarks in the marketplace is likely to cause customer confusion, you should still find the Defendant not guilty if you also find that the likelihood of customer confusion would be effectively cured by Defendant's use of disclaimers. The trial court declined to give the requested instruction on the grounds that use of disclaimers could not be a defense in cases involving the sale of goods with counterfeit trademarks to the general public. * * * In this case, the type of product being sold by the owner of the registered trademark was the same type of product being sold by Stern, except that the registered trademark used on Stern's products was not authorized by the owner of the registered trademark. Both products were consumer goods being sold to the general public. Once the counterfeit sunglasses leave the booth, no disclaimer, no matter how prominently displayed at the booth, would give notice to the general public that the sunglasses were not the actual designer sunglasses. Thus, the signs Stern displayed at his booth could never cure the confusion in the general marketplace that both the civil statute and the criminal statute in Florida seek to avoid by prohibiting trademark infringement. During the trial, the trial court properly instructed the jury in this case that before Stern could be found guilty, the state must prove that Stern's use of the forged or counterfeit trademarks in the marketplace was likely to cause customer confusion. The trial court further instructed the jury on the statutory factors approved by the Florida Supreme Court in Great Southern Bank in evaluating the likelihood that confusion exists. The trial court also properly instructed the jury that the "customer" to be considered in evaluating the likelihood of confusion not only included the potential direct purchasers of the counterfeit goods, but also potential purchasers of the trademark holder's goods and members of the public who encounter the counterfeit goods in a post-sale context. See U.S. v. Torkington, 812 F.2d 1347, 1350-53 (11th Cir. 1987) (provided that the confusion contemplated by criminal trademark counterfeiting statutes includes potential confusion by potential purchasers in the public who may not have the ability or opportunity to view disclaimers on display for only direct purchases). On the contrary, we find that the instruction requested by Stern could have misled the jury into thinking that the crime did not occur if the jury concluded the direct purchasers of the counterfeit sunglasses sold by Stern knew that Stern's sunglasses were look-a-likes. Therefore, the requested defense instruction was improper, and the trial court properly denied giving the requested instruction. 739 So. 2d at 1206-1207. The second reason for rejecting Petitioner's argument is the repeat nature of his offenses. Even if one accepts that Petitioner believed in good faith that identifying his products as "Swiss replicas" made it lawful to sell imitation Rolex watches, his first arrest and appearance in court should have disabused him of this belief. On March 28, 2002, the court withheld adjudication, but nonetheless ordered Petitioner to pay $2,702.25 in restitution for the cost of the investigation as well as court costs. Petitioner could not have left the courtroom believing that he had been exonerated. He continued to sell his "Swiss replica" Rolex watches in knowing violation of section 831.05(1)(a). He was arrested twice more for the same offense and convicted of a third degree felony violation of the cited statute on each occasion. Petitioner conceded that after his first arrest, he knew it was against the law to sell imitation Rolex watches, but that he did it anyway because he needed the money. Petitioner testified that his conviction on three counts of battery upon a law enforcement officer was based upon a false charge. He testified that during one of his arrests for selling replica Rolex watches, he fled from the police, who used excessive force in apprehending him then charged him with battery. Petitioner stated that he pled no contest to the charges on advice of his lawyer. Petitioner attempted to make a case that the Commission treated him unfairly at its March 16, 2011, meeting. His chief claim was that other applicants with offenses far more serious than his were approved by the Commission because those applicants were represented by counsel at the meeting. Petitioner offered the testimony of his fiancée to bolster this claim, but submitted no documentation in support of this highly subjective assertion, which cannot be credited. Petitioner offered little evidence to demonstrate his rehabilitation, as opposed to rationalizations and justifications for his criminal behavior. He testified that he made high marks on his real estate course work. At the time of the hearing, he stated that he had been off supervised probation for two or three years. He states that he is currently in the business of selling legitimate merchandise, and seeks a real estate license to supplement his income. Petitioner noted that he is now nearly 50 years old and is not likely to repeat his past mistakes.2/ Petitioner did not present any disinterested witnesses who could favorably describe Petitioner's dealings in business matters or transactions. Petitioner did not present sufficient evidence to show that he was honest, truthful, trustworthy, had good moral character, or had a good reputation in the community for fair dealing. Petitioner did not present sufficient evidence to show that he was "competent and qualified to make real estate transactions and conduct negotiations with safety to investors and to those with whom the applicant may undertake a relationship of trust and confidence," as required by section 475.17(1)(a), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Florida Real Estate Commission enter a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 14th day of October, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 14th day of October, 2011.
The Issue The issue for determination is whether Respondent should certify Petitioner as a minority business enterprise ("MBE").
Findings Of Fact Respondent is the governmental agency responsible for granting or denying applications for MBE certification in accordance with Section 288.703(1), Florida Statutes,1 and Florida Administrative Code Rules 60A-2.001 and 60A-2.005.2 Petitioner is an applicant for MBE certification. Petitioner is engaged in the business of installing traffic signal devices. Petitioner is a closely held Florida corporation that was organized in 1990. Minority Ownership All of Petitioner's stock is owned by Ms. Burita Allen. Ms. Allen is a minority person within the meaning of Section 288.703(3) (the "minority owner" or "minority shareholder"). The minority shareholder is majority shareholder. She owns at least 51 percent of Petitioner's stock within the meaning of Rule 60A-2.005(2)1. Financial Risk And Control The minority ownership of Petitioner is real, substantial, and continuing within the meaning of Rule 60A- 2.005(3)(d)3. The minority owner provided all of the $100,000 used for Petitioner's initial capitalization on April 4, 1995.3 Petitioner was inactive from 1990 until it began its first job on May 11, 1995. Petitioner now has completed or started a total of eight jobs. The minority owner has knowledge and control of Petitioner's financial affairs. She has sole control of the day to day operations of the company and its profit and loss. She contributed all of its initial capital, writes the checks, and contracts with employees, subcontractors, and customers. Operating And Management Control The minority owner has operating control of Petitioner and is technically qualified to manage and operate Petitioner's business. She has generated significant growth for Petitioner. Operating revenues have increased from zero to $170,736.28 in less than two years. Petitioner has another $90,268.08 in work performed but not billed. Petitioner's clients include the Florida Department of Transportation, the United States Navy, and Nassau County, Florida. Petitioner has also performed jobs for private companies such as Georgia Pacific, Target, and Haynes & Sons Inc. Affiliation Petitioner's minority owner gained the knowledge and experience needed to operate Petitioner successfully as an employee of J.W. Buckholz Traffic Engineering, Inc. ("Buckholz Engineering"). Buckholz Engineering is a closely held Florida corporation owned by five individuals. Petitioner's minority owner is the majority shareholder in Buckholz Engineering. She owns 52 percent of the stock of Buckholz Engineering. Petitioner shares office space, equipment, and staff with Buckholz Engineering. Petitioner's minority owner allocates approximately 40 percent of the 70 to 102 hours she works each week to Petitioner. The remainder of her work week is allocated to Buckholz Engineering. The affiliation between Petitioner, its minority owner, and Buckholz Engineering does not impair the minority owner's ownership and control of Petitioner. Petitioner's minority owner is the majority shareholder in Buckholz Engineering. Petitioner's minority owner has an unimpeded legal right to share Petitioner's income, earnings, and other benefits in proportion to her stock ownership within the meaning of Rule 60A-2.005(2)(b). Neither the exercise of discretion by Petitioner's minority owner, her financial risk, nor her equity position in Petitioner is subject to any formal or informal restrictions within the meaning of Rule 60A-2.005(3)(a). There are no provisions in any purchase agreement, employment agreement, voting rights agreement, or the corporate by-laws that vary or usurp the minority owner's discretion. Buckholz Engineering assisted Petitioner in obtaining greater bonding limits than Petitioner could obtain on its own. Petitioner was capable of obtaining bonding on its own but increased the amount of bonding by adding Buckholz Engineering as co-applicant. Petitioner's minority owner is the majority shareholder in Buckholz Engineering. Buckholz Engineering is a professional service corporation that provides design services by licensed professional engineers. Buckholz Engineering utilizes professional liability insurance. It is not a construction company and has no need to be bonded. Petitioner derived its name in part to benefit from the goodwill of Buckholz Engineering. However, the two companies are not engaged in the same business. Buckholz Engineering is a professional engineering firm that performs professional services including the design of traffic control systems. Petitioner installs traffic signal devices. Unlike Buckholz Engineering, Petitioner does not need a professional engineering license to conduct its business. Electrical License Petitioner does not offer a trade or profession to the state which requires a trade or professional license within the meaning Section 287.0943(1)(3)1.4 Unlike the professional engineers in Buckholz Engineering, no state statute requires the minority owner to be licensed in a particular trade or profession in order for Petitioner to install traffic signals. Petitioner's minority owner satisfies all certification requirements that are generally required for Petitioner to conduct its business. The minority owner is certified by the International Municipal Signal Association ("IMSA") and by the American Traffic and Safety Association ("ATSA"). In a particular job, Petitioner's customer may require that a licensed electrician pull the necessary permits for the job or that a licensed electrician approve the job. This customer requirement comprises only a de minimis portion of Petitioner's business. Of the eight jobs contracted by Petitioner, only one customer has required the permit to be pulled by a licensed electrician. Petitioner can satisfy these occasional customer requirements by subcontracting with a licensed electrician at a cost that is a small portion of the job cost.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein GRANT Petitioner's application for MBE certification. RECOMMENDED this 18th day of February, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1997.
Findings Of Fact Petitioner was incorporated on July 27, 1987. The original incorporators were Irene M. Kent and her husband, Jay Easterbrook. The original directors were Ms. Kent and Mr. Easterbrook. Ms. Kent and Mr. Easterbrook have remained the only directors of Petitioner. They are also the only shareholders. Since the formation of Petitioner, Ms. Kent has owned 51% of the shares and Mr. Easterbrook has owned 49% of the shares. Mr. Easterbrook is the president, and Ms. Kent is the vice- president of Petitioner. Petitioner is in the business of general contracting. Prior to deciding to form petitioner, Ms. Kent had been a schoolteacher for five years. She had had no prior significant experience in contracting and holds no contracting license or registration. Her educational background is in education. Mr. Easterbrook is a licensed general contractor and is qualifying agent of Petitioner. He is a civil engineer with a college degree in engineering. When Petitioner was incorporated, Mr. Easterbrook was employed full- time by National Seal Company as manager of the southeast region. A substantial portion of the work that he supervised was the installation of industrial plastic liners manufactured by National Seal Company. Petitioner's first job, which was for $20,000, was for the installation of a National Seal liner in Ellaville, Georgia. Petitioner learned of the job through Mr. Easterbrook's contacts. Toward the end of the job, a welder who worked for National Seal assisted in the installation. However, Ms. Kent, not Mr. Easterbrook, performed the on-site supervision and inspections of the job, which was completed on October 26, 1987. Petitioner's second job, which was for less than $10,000, was for the installation of a National Seal liner in Bostwick, Georgia. Petitioner learned of the job through Mr. Easterbrook's contacts. The job was performed shortly after the Ellaville job. Petitioner's third job, which was for $15,000, was for the installation of a National Seal liner in Hardee County, Florida. The contract for this job, which Petitioner learned of through Mr. Easterbrook's contacts, was entered into at about the same time as the Bostwick contract. Petitioner's only other job to date was as the general contractor responsible for the construction of 14 relocatable classrooms for various public schools in Seminole County, Florida. Ms. Kent learned of this job, which was for about $300,000, through an announcement in the local newspaper. This job was completed on March 31, 1988 and earned Petitioner a profit of $40,000. Mr. Easterbrook does all of the estimating for Petitioner in the preparation of its bids for contracts and interpretation of blueprints and specifications contained in invitations for bids. Ms. Kent assists in this part of the work by pricing materials. She also hires, supervises, and pays the subcontractors; purchases materials and equipment; and performs the bookkeeping, although Petitioner also employs an independent public accountant. Mr. Easterbrook quit his job with National Seal Company effective February 16, 1988, and took another week to close his office. He has since worked exclusively for Petitioner. Prior to his departure from National seal Company, Mr. Easterbrook devoted considerable time, although often by telephone only, rendering technical assistance to his wife with respect to the above- described jobs. In February, 1988, be spent 40-50 hours a week working for Petitioner where he has been on the payroll since January or February, 1988.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application of Petitioner for certification as a minority business enterprise. DONE and RECOMMENDED this 10th day of June, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0355 Treatment Accorded Respondent's Proposed Findings 1-3. Adopted. 4-5. Rejected as unnecessary. 6 and 9. Adopted in substance. 7-8. Adopted. 10. Adopted, except that first sentence is rejected as legal argument and reference to licensure in eight other states is rejected as unnecessary. 11, 14 and 16. Rejected as unnecessary. 12-13, 15. Adopted. 17. Adopted, except that reference to Ms. Kent's work hours is rejected as unsupported by the greater weight of the evidence. 18-19. Adopted. 20, 24-25. Adopted in substance. 21. Rejected as legal argument. 22-23 and 26-27. Adopted. COPIES FURNISHED: Irene M. Kent Diversified Tech, Inc. 2296 Matthew Circle Deltona, Florida 32738 Deborah S. Rose, Esquire Department of General Services 452 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955 Susan Kirkland General Counsel Department of General Services 457 Larson Building Tallahassee, Florida 32399-0955
The Issue The issue is whether the Petitioner is qualified for designation and certification as a minority business enterprise.
Findings Of Fact At the hearing, it became apparent that the reasons for denial were principally lack of independence and affiliation with a non-qualifying company. The parties stipulated to the following: Ms. Wendy Stephens, President and Secretary of WPS and sole stockholder WPS, possess the authority to, and does in fact, exercise complete control over the management, daily operations and corporate affairs of WPS. Ms. Stephens possesses the technical capability, managerial qualifications and expertise to operate WPS. The following facts were proven at hearing: Ms. Stephens is a white, female and is qualified as a minority person under the statute. In 1991, Charles Perry, Ms. Stephen's father and a white male, provided $7,000 for start up capital and a lease of 3 acres on his farm to house Alachua Greenery, a wholesale/retail nursery which Wendy Stephens began with assistance from Perry. Ms. Stephens has never made payments on the aforementioned lease. Charles Perry and Wendy Stephens were the sole stockholders in Alachua Greenery, each holding 50 percent of the shares in the corporation. Perry has contributed nothing more to the operation of the corporation, and has never exercised any control over the corporation, although he was initially a director. WPS is a Florida corporation, domiciled and doing business in the state. WPS is worth less than $3,000,000 and has three employees. Ms. Stephens is and always has been the sole stockholder of WPS, and has served as its President and Secretary since its incorporation. Ms. Stephens husband, Gary Stephens, was once a director of WPS upon the advice of counsel; however, he exercised no control over the corporation and resigned as a director on April 12, 1996. Gary Stephens sold a Bobcat tractor to Wendy Stephens upon which he has deferred payments. This Bobcat is used by WPS and Alachua Greenery. Gary Stephens has no other financial or other interest in WPS or Alachua Greenery. WPS was formed for the purpose of engaging in the retail landscaping business, which is a logical business expansion from the wholesale nursery business. WPS has engaged in the retail landscaping business for several customers. WPS shares equipment, land, vehicles, and employees with Alachua Greenery. There is no evidence that WPS, which has performed a number of contracts, has been a conduit of money to Alachua Greenery. On May 13, 1996, Perry gifted his share of Alachua Greenery to Wendy Stephens.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for minority business status be denied. DONE AND ENTERED this 27th day of June, 1996, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 96-0023 Both parties submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why. References to numbered paragraphs in Petitioner's findings includes all letter subparagraphs unless otherwise noted. PETITIONER'S RECOMMENDED ORDER Paragraphs 1,2 Statement of Case Paragraph 3 Irrelevant Paragraphs 4-6 Statement of Case Paragraph 7a Paragraph 9 Paragraph 7b Subsumed in Paragraph 6 Paragraph 7c Subsumed in Paragraphs 6 & 8 Paragraph 7d Contrary to best evidence Paragraph 7e Irrelevant Paragraph 7f Subsumed in Paragraph 9 Paragraph 7g Irrelevant Paragraphs 7h,i Paragraph 7 Paragraphs 7j,k,l Subsumed in Paragraph 8 Paragraphs 7m,n,o,p Paragraph 4 Paragraph 7q Subsumed in Paragraph 12 Paragraph 7r Paragraph 11 Paragraphs 7s,t Irrelevant RESPONDENT'S RECOMMENDED ORDER Paragraph 1,2 Subsumed in Paragraph 8 Paragraph 3 Subsumed in Paragraph 10 Paragraph 4 Paragraph 4 Paragraph 5 Subsumed in Paragraph 10 Paragraph 6 Not necessary Paragraph 7,8 Paragraph 12 Paragraph 9 Not necessary COPIES FURNISHED: David L. Worthy, Esquire Peter A. Robertson and Associates 4128 Northwest 13th Street Gainesville, Florida 32609 Joseph L. Shields, Esquire Commission on Minority Economic and Business Development 107 West Gaines Street, Suite 201 Tallahassee, Florida 32399-2005 Veronica Anderson, Executive Administrator Commission on Minority Economic and Business Development Collins Building, Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000
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 The issues in this case are as follows: Whether Respondent failed to maintain a complete and accurate inventory of personal effects or other personal property recovered in the course of repossessions for three separate banks, pursuant to Sections 491.31(8)(1) (repealed October 1, 1990), and 493.6404(1) (effective October 1, 1990), Florida Statutes; Whether Respondent conducted or advertised the business of a recovery agent without a valid class "R" recovery agency license, and therefore violated Section 493.6118(1)(g) (effective October 1, 1990), Florida Statutes.
Findings Of Fact Respondent, Dennis F. Darnell, is a class "E" licensed recovery agent and he is accused of failing to conduct an inventory of the personal property and personal effects found in recovered vehicles, as reguired by Sections 493.318 and Section 493.6404, Florida Statutes. Mr. Darnell is also accused of operating a recovery agency without a class "R" recovery agency license in violation of Section 493.6118(1)(g), Florida Statutes. Mr. Darnell has engaged in the busin!$ss of repossessing vehicles for many years and he is held in high regard by the personnel with whom he worked at the financial institutions for which he worked, which included SouthTrust Bank, Independent Bank of Ocala, and Citizens First Bank of Ocala (the banks). Respondent entered into agreements with the three banks that he would repossess the cars, return them to the banks, and allow bank personnel to inventory the personal effects (T60-61). Pursuant to these agreements, Respondent repossessed vehicles for three bank clients, SouthTrust Bank, Independent Bank of Ocala, and Citizens First Bank of Ocala during the period of January 1, 1990, to November 28, 1990, in Marion County Florida. Under the terms of the agreements, Mr. Darnell turned the recovered vehicles over to the possession of the appropriate bank as soon as the repossession was completed. Respondent did not personally take an inventory of the personal property found in or on recovered vehicles. However, personnel of the bank for which Respondent was working did make an inventory. When advised by a Department investigator that this did not meet the amended statutes in the opinion of the investigator, Respondent changed his practices, and inventoried the property himself. On November 28, 1989, the Department inspected the Respondent's business. A review revealed that the Respondent did not have inventories maintained on file. No evidence was presented showing how many files lacked inventories, the date of the repossessions, or for which banks the work was done. Prior to amendment of the statutes, the banks were subject to regulation, and were required to conduct inventories. The banks were subject to statutory controls and responsible for the personal property. At some time prior to October 1, 1990, the Division of Licensing sent a mass mailing to all class "E" licensed recovery agents informing them about the impending statutory changes, including the requirement that a recovery agency must obtain a class "R" license to operate. The Respondent engaged in recovery work without a proper license between the effective date on the amendment and January 13, 1991. Part of that time the Department was engaged in preparation and dissemination of new applications to include finger print cards. In November the Respondent's company started making inguiries about the new licensure requirements. There were delays in receipt of the application and other necessary items which were not the fault of the Respondent, who filed an application of January 13, 1991, after receiving the application papers on January 10, 1991. The Department involved the Respondent's principal business competitor in the investigation of the Respondent which was a "regular" investigation normally conducted 90 days after initial licensure or relicensure. When querried about banks in the Ocala area, the information provided by the competitor was selective. Asking Respondent's competitor about this was an ill advised procedure which taints investigative motivation. Between October 1 and November 28, 1990, Respondent performed or advertised the services of a recovery agency without a class "R" recovery agency license (Pet. Ex. 3; T15-17). There are several thousand class "E" licenses in Florida.
Recommendation Based on the foregoing findings of fact, and particularly the mitigation of the technical violation of Section 493.328, Florida Statutes, it is RECOMMENDED: That the Department take no action against the Respondent. DONE and ENTERED this 10th day of May, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-948 Petitioner's Proposed Findings of Fact: 1-4. Adopted. 5. Rejected, as contrary to the most credible evidence. Respondent's Proposed Findings of Fact: 1-4. Adopted. COPIES FURNISHED: Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, FL 32399-0250 Daniel L. Hightower, Esquire P.O. Box 2315 Ocala, FL 32678
The Issue The issues are whether Respondent violated Subsection 489.127(1)(f), Florida Statutes (2008), for the reasons stated in the Administrative Complaints and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (DBPR), is the state agency charged with regulating the practice of contracting in the State of Florida. It also has jurisdiction over the unlicensed practice of contracting pursuant to Section 455.228, Florida Statutes (2008). DBPR has filed two administrative complaints charging Respondent Frank Clardy with violating Subsection 489.127(1)(f), Florida Statutes (2008), by engaging in the business of, or acting as a contractor without a license. Mr. Clardy, was not a state certified or registered contractor licensed to engage in the practice of contracting pursuant to Part I, Chapter 489, Florida Statutes, at any time relevant to this proceeding. He maintains he did not need a license, because he was acting as a salesman and not himself engaging in the business of, or acting as a contractor. The other named Respondent charged in the complaint in DOAH Case No. 08-1108, O. E. Total Services, Inc. ("O.E."), is a Florida corporation with Onel Eschevarria as its registered officer/director. The state investigator assigned to this case testified that O.E. was listed as an inactive entity by the State Division of Corporations, so she did not check to see if O.E. was a general contractor licensed by DBPR. The testimony of two witnesses, Mr. Clardy and Herbert Neff, support a finding that, at all relevant times, Onel Eschevarria, the owner of O.E., was not a licensed general contractor. Therefore, O.E. could not have been an entity registered and qualified to use his license number. Daisy Green and her late husband, Herbert Green, entered into a contract listing O.E. as the corporate entity, signed by Frank Clardy, as salesman and officer, to pay $9,351 for the installation of hurricane shutters for 17 openings in their home in Boca Raton, Florida. The license numbers on the contract were CGC A23836 and CCC 057010, and belonged to Carlos Fulmann. According to Mr. Clardy, Mr. Fulmann notified O.E. that he was unable to work with O.E. at that time, and O.E. was looking to affiliate with another licensed contractor. Nevertheless, Mr. Clardy took the measurements for the shutters at the Greens' home and accepted a check for a deposit of $3740.40. The check, dated April 11, 2006, was payable to O.E. and was deposited in the account of O.E. The shutters were never delivered and the money has not been refunded. DBPR's investigator confirmed that no permit was ever issued for the installation of shutters at the Greens’ residence. On April 18, 2006, Mrs. Green wrote a check in the amount of $1700 made payable to Frank Clardy personally, with "Deposit Shutters" on the line indicating the purpose for the check. Mr. Clardy cashed that check. That brought the total amount paid by the Greens, apparently in connection with the contract for hurricane shutters, to $5440.40. At the hearing, Mrs. Green testified that she and her husband paid $7240 of the total contract amount of $9351, leaving a balance due of $2111, as indicated by handwritten notes made on the contract. No one was sure who made the notes and there was no other evidence of additional payments arguably for hurricane shutters over and above the two checks that total $5440.40. Mrs. Green could not explain the discrepancy between the total amount of the two checks and the note on the contract. There was also conflicting testimony over the purpose for the $1700 check. Mrs. Green testified that Mr. Clardy said that the first check (for $3740.40) had been a deposit and he needed the second one (for $1700) for materials, but that contradicts her note on the check that it was inexplicably a second deposit for shutters. Mr. Clardy testified the $1700 check was paid for him to hire two crews to perform other work for the Greens, including replacing a side door in the garage with a hurricane door, repairing woodwork around the door, repairing cement in the garage, replacing and painting fascia boards, and installing a pool rail. Mr. Clardy testified that he had a written contract for this work but was unable to find it. Mrs. Green testified that she and her husband paid $250 to Mr. Clardy to fix the side door to their garage, and that they also separately paid someone he recommended to install handrails for the pool. Mrs. Green's testimony appears to be more likely truthful than Mr. Clardy’s based on a handwritten and signed receipt that Mr. Clardy apparently gave the Greens that reads: Paid in full Side door facia boards hand rail to pool $250.00 Mr. Clardy acknowledged that his signature was on the receipt but claimed it was altered after he signed it. In support of his position, Mr. Clardy pointed out that his name, as printed on the receipt as "Claridy" is misspelled. Based on his acknowledgement of his signature, his claim that the receipt does not accurately represent work he performed for $250 is rejected. Ivan M. Rubin entered into a contract with Mr. Clardy on June 27, 2006, to pay $5600 for the installation of hurricane shutters at his home in Boynton Beach. The corporate entities listed on the Rubin contract were Access-Ability, Inc. (Access- Ability) & O. E. Total Services, Inc. Frank Clardy signed as salesman and officer. The license number on the contract was CGC 051895, which is registered with the State as the certified general contractor license number for Herbert John Neff and Access-Ability as a qualified business. Mr. Rubin gave Mr. Clardy a check for the deposit in the amount of $2600, made payable to Access-Ability. That check was given by Mr. Clardy to Mr. Neff at Access-Ability. Soon after, Mr. Rubin had additional questions about the shutters and called the telephone number on the contract. When he was unable to reach Mr. Clardy, Mr. Rubin stopped payment on the check. Although he remembered that the amount of the check was for $2500, not $2600, Mr. Neff acknowledges that he received the check from Mr. Rubin on which the bank payment was stopped. On July 11, 2006, Mr. Clardy explained, according to Mr. Rubin, that he had been in the hospital and had paid for the materials for the shutters from his personal funds. So, Mr. Rubin wrote another check for $2600 made payable to Frank Clardy personally. At hearing, Mr. Clardy admitted having never paid for shutters for the Rubins. Both Mr. and Mrs. Rubin said Mr. Clardy told them he owned O.E. and that they believed it because he signed the contract as “salesman” and "officer." Mr. Clardy testified that he ordered the hurricane shutters for the Green and Rubin projects, and that, as he had done with the Greens' deposit, he cashed Mr. Rubin's second check and gave the money to Onel Eschevarria, who took it and is now in jail. As a result of not being paid by O.E., the manufacturer refused to deliver the products. The Rubins did not receive the shutters and have not received a refund. There was never a permit application filed for the Rubin project. After not receiving the shutters and not getting help contacting Mr. Clardy after talking to his mother and stepfather, Mr. Rubin checked the license number, found it was issued to Mr. Neff, and contacted him. Mr. Neff told Mr. Rubin that he could find Mr. Clardy in the card room of a casino in Coconut Creek. Mr. Rubin went there to look for him, but Mr. Clardy was not there. Mr. Neff testified that he has been a licensed general contractor in Florida since 1990, that the only company he qualified for the use of his license was Access-Ability, and that he knew it was unlawful for an unlicensed person to subcontract with a licensed contractor. Mr. Neff was never qualified by the state to use his license to secure permits for O.E., nor for Access-Ability and O.E. as a joint venture. Mr. Neff confirmed that he and Mr. Clardy discussed a business proposal in which Mr. Clardy would get the business and arrange for the installation of shutters, and Mr. Neff would get the building permits. According to Mr. Neff, Mr. Clardy told him that he was a salesman for O.E., that O.E. was a licensed contractor, and that he was negotiating to acquire O.E. Mr. Neff testified that he never entered into a contract with Mr. Clardy and "[t]he arrangements we were making were just left up in the air because we couldn't conclude it." Mr. Neff's testimony is rejected as totally inconsistent with the evidence. He contradicted his claim that Mr. Clardy led him to believe that O.E. was licensed, when he also testified that he remembered reading a proposal from Mr. Clardy, and saying ". . . I couldn't sign it because it contained a built-in violation of my license," because O.E. was not licensed and was not owned by Mr. Clardy. At the hearing, he said it looks like his signature, that "it looks like he did" sign the following agreement: Date: Feb 20, 2006 To: ACCESS-ABILITY, INC Attn: Mr. HerbNeff 610 E. Sample RD Pompano Beach, FL 33064 Mr. Neff: We have decided to use your services of installing shutters and pulling permits for the clients we sign up with 0. E. Total Services, Inc. Our company will be the sales company for Access -Ability, Inc. This is the way we are going to work with your company. We will sign up the client take the deposit wait for the check to clear the bank and then issue you a cashiers check for the amount of the deposit. We will pay your company $3 .00 per square foot to install the HV Bertha shutters and pull the necessary permits. You will then issue O.E. a cashier's check back for the amount minus the $3.00 a square foot to install the HV Bertha Shutters and pull the permits needed for each job. Once the job is signed up and you issue us a cashier's check for that job, O.E. will order the material from our supplier(s) and give you a copy of the purchase order placed to our supplier with the date the product will be in stock for that particular job. Also O.E. will give Access-Ability a form that gives the clients name and address with the square footage of that job. It will also state the deposit of the job and the date the job should be installed. If Access - Ability, Inc. agrees on these terms please sign the bottom of this letter and return it back to us as soon as possible. I think this will be a profitable venture for both companies and look forward to working with you and your company. Respectfully and Sincerely, The letter was signed by Frank Clardy, as Vice President of Sales for O.E. Total services, Inc., and Herbert J. Neff, as Authorized Representative for Access-Ability, Inc. Mr. Neff agreed, regarding the letter, that [i]t provided [for] me to pull permits and then have someone else collect the money, and you're not allowed to do that. Now, the only way that could have been done is if Mr. Clardy had become licensed -- had a license, if O. E. Total Services was actually licensed. . . ." He acknowledged further that he knew ". . . they never had a license. . ." Mr. Neff testified that he never received any money for the work that was supposed to have been done for the Greens and the Rubins. He admitted having created a spreadsheet to keep track of money paid to him by O.E. to get permits for their customers, but claimed the money was not tied to or derived from any particular customer. According to Mr. Neff, funds were paid to him in advance by O.E. and held until O.E. provided him a permit application package to file. In addition to the checks, Mr. Neff admits having received cash from O.E. and from Mr. Clardy. The evidence, including his admissions, completely contradicts his claim of not having an illegal agreement with O.E. Mr. Neff’s testimony that he was not aware of the Green and Rubin contracts until they complained that their shutters had not been delivered is also rejected as inconsistent with the evidence. On his spreadsheet, Mr. Neff listed the name "Herb Green" with $500 in the column headed "Fee" and $100 in the column headed "Permit & NOC” (meaning notice of commencement), and Mr. Neff admitted that he received the check on which Mr. Rubin later stopped payment. Mr. Clardy placed advertisements soliciting business for Access-Ability, with Mr. Neff's license number on them and Mr. Clardy's telephone number as the contact for customers seeking free estimates. He signed an exhibit agreement and set up a booth at a shopping mall to promote sales for Access-Ability. Mr. Neff's claim that he was unaware of the advertisements is contradicted by his statement that he called Mr. Clardy to complain that the first advertisement violated the law, by having both the names of Access- Ability and O.E. on it. He testified that only the name of the company that was qualified to use his license number, Access-Ability should have appeared on the advertisements. Mr. Neff testified that Mr. Clardy told him that he would be setting up a mall kiosk, but unpersuasively claimed that he did not know that he would be advertising for Access-Ability until he arrived at the mall. Mr. Neff claimed he never authorized Mr. Clardy to use 4100 Power Line Road as his address, yet he used the same address in a notice of commencement after acknowledging, in a written proposal to install shutters that he submitted to a homeowner ". . . to complete and comply with the contract signed . . . with Frank Clardy." The evidence, including the contradictions by Mr. Neff, support Mr. Clardy's claim that O.E. and Mr. Clardy were authorized to use Mr. Neff's license number on contracts, advertisements, and business cards. Mr. Clardy testified that he worked as a salesman for Access-Ability, based on their agreement. He also worked, he claimed, as a salesman for O.E., from February to August 2006, when O.E. stopped paying him. He compared his role to that of any salesperson employed by a home improvement store. DBPR's investigator confirmed that neither Frank Clardy nor O.E. and Access-Ability as a joint venture is a state-licensed general contractor or a registered qualified business. DBPR's investigative costs were $280.62 for the Green case and $333.56 for the Rubin case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent Frank Clardy guilty of violating Section 489.127(1)(f), Florida Statutes (2008); imposing an administrative fine in the amount of $5,000 and requiring the payment of investigative costs in the amount of $333.56 in DOAH Case No. 08-1084 (DBPR Case No. 2006-062380); and imposing an administrative fine in the amount of $5,000 and requiring the payment of investigative costs in the amount of $280.62 in DOAH Case No. 08-1108 (DBPR Case No. 2006-053353). DONE AND ENTERED this 18th day of February, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 18th day of February, 2009. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Frank Clardy 5830 Eagle Cay Lane Coconut Creek, Florida 33073 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Lucynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of his national origin.
Findings Of Fact The evidence adduced at final hearing established the facts that follow. In May 1999, Winn-Dixie hired Torres to work as a bagger in one of its grocery stores. Until the event that precipitated his termination in July 2000, Torres’s job performance was generally satisfactory, although he was formally reprimanded at least once, in December 1999, for insubordination. Torres was at work bagging groceries on July 14, 2000. The store was crowded that day, and the lines were long at the cash registers. A customer checking out in one line asked Torres——who was stationed at another lane——to bag his groceries. Torres refused, and the man (according to Torres) called Torres an “asshole.” Torres retorted, “You’re the asshole.” (At hearing, Torres admitted using the epithet in front of “a whole line” of customers but explained——in effect——that, since his antagonist had used the word first, the man had it coming.) Having thus offended one another, the two men——Torres and the customer——engaged in a loud shouting match. The assistant store manager, who was in the parking lot outside when this verbal altercation began, was called inside to restore calm and order. Taking charge, he separated the disputants, apologized to the customer (who was a regular shopper at that store), and sent Torres home to cool off. When Torres reported for work the next day, he was fired. He complained, then as now, that Winn-Dixie’s decision was the result of his Puerto Rican origin. His supervisors, however, claimed——then as now——that the cause of Torres’s firing was his profanity-laced row with a customer, which had occurred in front of other customers. Ultimate Factual Determinations Winn-Dixie fired Torres, not because of his national origin, race, or ethnicity, but because Torres quarreled with a customer——angrily and loudly——before other customers. This is a legitimate reason for a grocery store to discharge a bagger. There is no credible, competent evidence that Winn- Dixie tolerated similar behavior in non-Hispanic (or non-Puerto Rican or non-minority) employees. The evidence does not support a finding that Winn-Dixie feigned disapproval of Torres’s dustup with a shopper as a pretext for discrimination. In short, Winn-Dixie did not discriminate unlawfully against Torres.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Torres’s Petition for Relief. DONE AND ENTERED this 30th day of August, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 30th day of August, 2002. COPIES FURNISHED: Modesto A. Torres 25302 Southwest 127th Place Miami, Florida 33032 Maria H. Ruiz, Esquire 799 Brickell Plaza, Suite 900 Miami, Florida 33131 Denise Crawford Clerk of the Commission Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
