The Issue The issue presented is whether Petitioner's application for certification as a minority business enterprise should be granted.
Findings Of Fact Petitioner Omni Outdoors, Inc., a for-profit corporation located in Coral Springs, Florida, is engaged in the business of commercial landscaping and irrigation. It was incorporated on September 19, 1995, by Bruce Reeb. When incorporated, Petitioner issued its 100 shares of stock as follows: 24 shares to Bruce, 26 shares to his wife Terry, 24 shares to Kevin McMahon, and 26 shares to Kevin's wife Michele. Accordingly, the Reebs and the McMahons each own 50 percent of the business. Both Reebs and both McMahons became the 4-member Board of Directors. Bruce became the president and the secretary of the corporation, and Kevin became the vice-president and the treasurer. According to the corporation's By-laws, the President is the chief executive officer of the corporation, responsible for the general supervision of its business. Bruce is a certified general contractor in the State of Florida and is the qualifier for Petitioner. Kevin holds an irrigation license and is the qualifier for Petitioner in that area. Bruce handles estimating, pricing, and proposal preparation and presentation. Kevin runs the field operations and purchasing of materials. In October 1996 Terry quit her job as a flight attendant to begin working for Petitioner, handling accounting and personnel matters. Her name was added to the corporation's bank accounts as an authorized signature. Bruce and Kevin remain as authorized signatures on the accounts, and only one signature is required for the corporation's checks. She was given the title "chief executive officer" of the corporation in January 1997, a position authorized by an amendment to the By-laws in March 1997. She was given a smaller salary than Bruce or Kevin, who were paid the same amount. Kevin's wife Michele has never been involved in the day- to-day activities of the corporation. She has never received a salary from the business. In January 1997 Terry filed an application with Respondent for the corporation to be certified as a minority business enterprise, under the status of "American Woman." Around the time the corporation filed its application, Terry's salary was increased to $600 per week so she would be making the same as Kevin, and Bruce's salary was decreased to $400 per week. Even after Terry's full-time employment by the corporation, the signatures of her husband or of Kevin continue to appear on corporate obligations, such as an indemnity agreement and corporate promissory notes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for certification as a minority business enterprise. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: Terry M. Reeb, Chief Executive Officer Omni Outdoors, Inc. 1742 Northwest 112 Terrace Coral Springs, Florida 33071 Joseph L. Shields, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast The Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast The Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast The Hartman Building, Suite 303 Tallahassee, Florida 32399-2189
The Issue Whether the Petitioner should be certified as a minority business enterprise (MBE) by the Minority Business Advocacy and Assistance Office of the Department of Labor and Employment Security (Department).
Findings Of Fact The Petitioner, All Kinds of Blinds, was incorporated in the State of Florida on January 15, 1999, as All Kinds of Blinds of So. Fla., Inc. The President of the Petitioner is Angela Conroy, a female. Mrs. Conroy owns 51 percent of the company. The remaining 49 percent of the company is owned by Phillip Conroy, Angela’s husband. Mr. Conroy also serves as the company’s vice president and secretary. On June 2, 1999, Mrs. Conroy executed a Florida Statewide and Inter-local Minority Business Enterprise Certification Application that was filed with the Department. The application identified Angela Conroy as the person who makes policy, financial decisions, signs payroll, signs surety bonds and insurance, and makes contractual decisions for the Petitioner. The application also identified Phillip Conroy as the person who makes personnel decisions and signs payroll for the Petitioner. Mr. Conroy is authorized to sign checks on behalf of the company. According to the application, the Petitioner performs various functions regarding the sales, consultation, service, and installation of all types of window coverings. Mrs. Conroy sought MBE certification as an American woman with majority ownership of the Petitioner. Mrs. Conroy has ten years of experience in this type of business but was reluctant to let her former employer know that she was opening her own business. Accordingly, Mrs. Conroy authorized Mr. Conroy to execute applications and various papers on behalf of the Petitioner. She relied on his business experience to guide her through the start-up process. An initial loan in the amount of $4,000 from the couple’s joint bank account was the start-up funds for the Petitioner. Mr. Conroy does the installations for the Petitioner. He performs other functions for the company as may be necessary. He also owns and operates an air conditioning filter company that leased a vehicle also used for the Petitioner’s business. Mr. Conroy maintained that his name appears on records pertaining to the Petitioner as a convenience for his wife. Mr. Conroy is a white male.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Labor and Employment Security, Minority Business Advocacy and Assistance Office, enter a final order denying the Petitioner’s application for MBE certification. DONE AND ENTERED this 28th day of April, 2000, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 28th day of April, 2000. COPIES FURNISHED: Angela Conroy All Kinds of Blinds 123 North Congress Avenue Suite 328 Boynton Beach, Florida 33426 Joseph L. Shields, Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Mary Hooks, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 301, Hartman Building Tallahassee, Florida 32399-2189 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
Findings Of Fact General Contractors & Construction Management, Inc. (Petitioner), is a Florida corporation engaged in the business of general contracting and construction (construction and renovation of commercial and residential buildings), including subcontracting, since 1985. Petitioner's President is Ms. Akram Niroomand-Rad and its Vice-President is Mr. Kamran Ghovanloo, Ms. Niroomand-Rad's husband. Petitioner is a small business concern as defined by Subsection 288.703(1), Florida Statutes. Prior to April 1990, Ms. Niroomand-Rad owned 50 percent of Petitioner's stock. In April 1990, she acquired 100 percent of the stock and became the Petitioner's sole owner. Ms. Niroomand-Rad is a minority person as defined by Subsection 288.703(3), Florida Statutes. According to Petitioner's articles of incorporation and by-laws, its corporate business is conducted by a majority of the board of directors. Petitioner has two directors, Ms. Niroomand-Rad and Mr. Ghovanloo, 1/ and as such, the minority owner does not control the board of directors. Also, according to Petitioner's by-laws, Petitioner's President manages its business and affairs subject to the direction of the board of directors. Petitioner's licensed contractor is Mr. Ghovanloo who is a certified general contractor. Ms. Niroomand-Rad is not a licensed contractor although she is taking course work to become a licensed contractor. Mr. Ghovanloo is Petitioner's qualifier, and, as its qualifier, brings his expertise and license to the business. Further, as qualifier, he is also responsible for the finances of Petitioner and for pulling the necessary permits in order for Petitioner to perform the contractual work. Additionally, Mr. Ghovanloo performs Petitioner's estimating, handles quality inspection of job sites, assists in the evaluation and preparation of bids, and attends some of the pre-bid meetings on projects. Ms. Niroomand-Rad has been involved in soliciting bids, reviewing bids and estimates, negotiating contracts, visiting clients, responding to correspondence, overseeing financial activities, hiring and firing, and visiting job sites. However, Ms. Niroomand-Rad relies heavily upon Mr. Ghovanloo's technical expertise, expert opinions, and judgment and upon others for guidance and for handling the technical aspects of the business. Further, Ms. Niroomand-Rad relies heavily on Mr. Ghovanloo, and others to a lesser degree, regarding the purchasing of goods, equipment, or inventory, and services needed for the day-to-day operation of the business, including evaluating and retaining subcontractors. Mr. Ghovanloo is authorized to sign checks without restriction. Ms. Niroomand-Rad was reared in a construction environment. Also, she has completed a construction management course offered by the City of Miami and is a licensed real estate broker. Petitioner has been certified as an MBE by Dade County and the Dade County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Minority Economic and Business Development enter a final order denying General Contractors & Construction Management, Inc., certification as a Minority Business Enterprise. DONE AND ENTERED this 24th day of July, 1995, in Tallahassee, Leon County, Florida. 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 24th day of July, 1995.
Recommendation Based on the foregoing, it is RECOMMENDED: That petitioner's application for certification as a Women Business Enterprise be denied. DONE and ORDERED this 29th day of June, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1984. COPIES FURNISHED: Diann Criss Atkinson, Qualified Representative Shurly Contracting, Inc. P. O. Box 15267 West Palm Beach, Florida 33406 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Paul A Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the Respondent properly rejected the Petitioner's bid for Board of Regents (BOR) project 658 because it did not comply with the good faith effort requirements of the General and Special Conditions of the project's specifications?
Findings Of Fact Call for Bids was issued by the Respondent, Florida Board of Regents, for Board of Regents ("BOR") project numbered 658, Southeast Campus Building - Davie at Broward Community College Central Campus, in Florida Administrative Weekly. (Stipulated). The Project Manual is the volume assembled which includes the bidding requirements, sample forms, and Conditions of the Contract and Specifications (Jt. Ex. 1 at pp. 8 of 106 pages). The Call for Bids (Jt. Ex. 2) provided that at least fifteen (15) percent of the project contracted amount will be expended with minority business enterprises (MBE) certified by the Department of General Services as set forth under the Florida Small and Minority Business Act, Chapter 287, Florida Statutes. If fifteen percent were not obtainable, the State University System would recognize good faith efforts by the bidder (Jt. Ex. 2). The Call for Bids (Jt. Ex. 2) provided that the bidder be advised to review the Good Faith Efforts requirements in the Special Conditions section of the Project Manual immediately, in order to schedule the necessary tasks to accomplish Good Faith Efforts. The Call for Bids (Jt. Ex. 2) provided that all bidders must be qualified at the time of their bid proposal in accordance with the Instruction to Bidders, Article B-2. The Instructions to Bidders, Article B-2 at page 9 of the Project Manual, (Jt. Ex. 1) provides in pertinent part, that in order to be eligible to submit a Bid Proposal, a bidder must meet any special requirements set forth in the Special Conditions section of the Project Manual. The Project Manual, Instructions to Bidders, B-23 at page 16 (Jt. Ex. 1) provides that the contract will be awarded by the Respondent for projects of $500,000 or more, to the lowest qualified and responsible bidder, provided the bid is reasonable and it is in the best interest of the Respondent to accept it. The award of the contract is subject to the demonstration of "good faith effort" by any bidder whose Bid Proposal proposes less than fifteen (15) percent participation in the contract by MBEs (Minority Business Enterprise). Demonstrated "good faith effort" is set forth in the Special Conditions. The contract award will be made to that responsible bidder submitting the low responsive aggregate bid within the preestablished construction budget. The Project Manual, Instructions to Bidders, B-25 at page 17, (Jt. Ex. 1) provides that the Florida Small and Minority Business Act, Chapter 287, Florida Statutes requires the involvement of minority business enterprises in the construction program. The Respondent/Owner has adopted a program for the involvement of minority business enterprises in the construction program. The application of that program is set forth in the Special Conditions of the Project Manual. The Project Manual, Instructions to Bidders, B-26 at page 17 (Jt. Ex. 1) provides that bidders shall be thoroughly familiar with the Special Conditions and their requirements. The Project Manual, Instructions to Bidders, B-26, at page 15 provides that falsification of any entry made on a bidder's proposal will be deemed a material irregularity and will be grounds for rejection. The Project Manual, Special Conditions, Article 1, subparagraph 1.1.1, at page I-1 of I-26 pages, (Jt. Ex. 1), provides that the SUS has established a Construction Minority Business Enterprise Program in compliance with the Florida Small and Minority Business Assistance Act, Chapter 287, Florida Statutes. The expenditure of at least fifteen (15) percent of the Base Bid with certified MBEs is a requirement of this contract, unless Good Faith Effort, as identified in paragraph 1.7 can be demonstrated by the Bidder. MBEs not certified by Department of General Services will be deleted from the calculation of the required participation of MBEs, and evidence of Good Faith Effort in lieu thereof will be required as identified in subparagraph 1.1.2 and paragraph 1-7 of these Special Conditions. The Project Manual Special Conditions, Article I, subparagraph 1.1.2 at page I-2 of I-26 pages, (Jt. Ex. 1), provides that evidence of good faith efforts will be required as specified by the Respondent/Owner within two working days after the opening of bids. Incomplete evidence which does not fully support each of the eight requirements of paragraph 1.7 of the Special Conditions shall constitute cause for determining the bid to be unresponsive, except that the owner may, at its option but not as a duty, seek supplementary evidence not submitted by the Bidder. The Project Manual Special Conditions, Article 1, paragraph 1.6 at page I-3 of I-26 pages, (Jt. Ex. 1) states that MBE's participating in the State University System Minority Construction Program must be certified as a MBE by the Florida Department of General Services (hereinafter referred to as DGS) at the time of bid submittal. Certification identifies and limits the Specialty Area of business the MBE can perform and still qualify as a certified MBE. Therefore, the trade service listed on the Proposal for each of the MBEs must be within the scope of the Specialty Area. The bidder is required to ascertain that a listed MBE is certified by the DGS in the appropriate specialty area to perform the services for which it is listed. (Jt. Ex. 1, B-15, at p. 13). On January 17, 1992, Petitioner, Centex-Rooney Consturction Company, Intervenor, State Paving Corporation, and ten other bidders submitted bids on BOR Construction Project No. BR-658. After review of the bids and preparation of the bid tabulatio it was announced by FAU that Centex-Rooney was the apparent low bidder, but that Centex-Rooney had failed to meet the fifteen percent (15%) MBE participation requirement, and therefore, would be required to submit evidence of Good Faith Efforts within two days. The bid submitted by Centex-Rooney listed four (4) subcontractors which Centex-Rooney represented as DGS certified MBE firms, for a total of $867,000 which was 9.56% of the base bid of $9,067,000. (Stipulated). Since the bid submitted by Centex-Rooney was less than fifteen (15) percent required participation in the contract by MBEs, the University Planning Office requested that Centex-Rooney submit documentation to demonstrate "good faith effort" as set forth in the Special Conditions of the Project Manual. (Stipulated). Centex-Rooney timely submitted its good faith documentation on January 22, 1992. (Stipulated). The Board of Regents with representatives of Centex-Rooney on February 25, 1992 to give Petitioner an opportunity to clarity and submit any additional good faith evidence in support of its bid. After reviewing the additional evidence, the Respondent contended that Centex-Rooney was in non-compliance with paragraphs 1.1.1 and 1.6.1 of the Special Conditions of the Project Manual, requiring at least 15% participation by MBEs at the time of bid opening, and at least one good faith effort criteria, paragraph 1.7.4, Special Conditions of the Project Manual. (Stipulated). Centex-Rooney was informed of the Board of Regents decision to reject its bid for non-compliance with Respondent's MBE requirements, and on March 6, 1992, the Chancellor of the Florida Board of Regents awarded the contract to State Paving Corporation. (Stipulated). ^ The Board notified by letter dated March 6, 1992, all bidders of its award of contract for BR-658 project to the next lowest responsive bidder, State Paving Corporation. (Stipulated). Petitioner timely filed a Notice of Intent to Protest on March 10, 1992. (Stipulated). On March 19, 1992, Petitioner timely filed its Petition for Formal Written Protest for BR-658. (Stipulated). A representative from Centex-Rooney attended the pre-bid/pre- solicitation meeting. (Jt. Ex. 10, R-115, 116). The minority business enterprise program was discussed and the Board of Regents' requirements for good faith efforts were reviewed. (R-116, 117, 131). Centex-Rooney submitted its bid proposal on January 17, 1992. (Jt. Ex. 13). On page 2, paragraph c., of the bid proposed form submitted by Centex- Rooney, it provides that expenditure with minority business enterprises shall be consistent with the requirements of Article 1. of the Special Conditions, Minority Business Enterprise Requirements. Centex-Rooney listed four subcontractors on its List of Subcontractors and MBE participation form as DGS certified MBEs for a total of 9.56% participation (Jt. Ex. 13, Jt. Ex. 31). The List of Subcontractors form is an integral part of the proposal (Jt. Ex. 13, List of Subcontractors Form page 1) and it is required of all bidders that MBEs must be certified at the time of bid opening for bona fide participation. (Jt. Ex. 1, page I-3 of I-26 pages, R-163, 174). Two of the four subcontractors listed by Centex-Rooney, Quality Concrete and S&S Roofing, were not DGS certified MBEs at the time of bid submittal. (R-19, 150, 163, 164, 174). Therefore, the two non-DGS certified subcontractors were deleted from the calculation of the required participation of MBEs, so that the total DGS certified MBE participation of Centex-Rooney at the time of bid submittal was 5%. (Jt. Ex. 1, Spec. Conditions 1.1.1, page I-1, Jt. Ex. 13, R-19, 150, 163-4, 174). Therefore, Centex-Rooney was required to show a good faith effort to engage MBE's. See Paragraph 16 above. Ms. Patricia Jackson, MBE Coordinator for Respondent, testified that requiring the DGS certified MBEs to be named at the time of bid opening makes the contract bidding procedures consistent, and eliminates any unfair price differentials between contractors. (R-151). Centex-Rooney was pressed for time in responding to the bid. It called a large number of the MBEs listed the documentation provided, and wrote letters to those subcontractors who expressed an interest and to other subcontractors. Mr. Charles Federico was chairman of the MBE advisory committee at Florida Atlantic University (Jt. Ex. 6, R-115). The committee reviewed the good faith efforts submitted by Petitioner (Jt. Ex. 6, 25, R-115, 140). The good faith effort submittal to FAU from Centex-Rooney contained nine sections (Jt. Ex. 25) with the following consecutive headings: Pre-Bid Meeting Attendance, Advertisements for MBE Participation, Solicitation Letter to Minority Businesses, Follow-Up Contacts to Minority Businesses, Selected Items (or portions) of Work for Minority Businesses, Specific Project Bidding Information made available to Minority Businesses, Utilization of Minority Businesses in Bid, Solicitation of Available Minority Organizations to Recruit Minority Businesses, and a Table of Contents. Under the third heading in Centex-Rooney's good faith efforts, Solicitation Letters to Minority Businesses, Petitioner provided 55 form letters in his submittal to FAU and a bulletin. The text of each form letter provided the following: Centex-Rooney is bidding as general contractor on the Southeast Campus Building for FAU and BCC, Central Campus, Davie, FL and invites your firm to submit a quotation for the materials and/or labor on any portion of said project which falls within your scope of work. Please review the attached notices with respect to pertinent information pertaining to the bid. If your firm will be unable to submit a bid on the project, please state your reasons on the enclosed unavailability certificate form, sign and return to the Office of C-R. By doing this, it will help maintain an active MBE directory at Centex-Rooney and continue to indulge you on our bid list. Centex-Rooney encourages that participation of MBE contractors will be more than happy to answer your questions regarding this project. Under the section heading, Follow-up Contracts to Minority Businesses, for Petitioner's good faith submittal to FAU Petitioner included a 14 page log gridded with subcontractor/ vendor names, telephone numbers, MBE designation, will bid, bid submitted, low bid, date contacted and remark sections. The FAU MBE advisory committee found Petitioner in non-compliance with 1.7.3, 1.7.4, 1.7.7 and 1.7.8 of the Special Conditions section of the Project Manual that contains the good faith efforts requirements of Respondent. (Jt. Ex. 6, Jt. Ex. 12). The committee based its findings on the Special Conditions section of the Project Manual. (R-119). The committee found non-compliance with 1.7.3 because the 55 form letters submitted by Petitioner were dated January 9, 1992. The committee determined that a letter dated January 9 was too late to give MBEs time to respond to the January 17 bid opening date. (R.121). In regard to 1.7.4, the committee found the Petitioner in non- compliance because no follow-up letters, telegrams, or meetings notes were provided in the good faith documentation. (R-122, 124). Mr. Federico testified that the committee found non-compliance with 1.7.7 of the Good Faith Effort requirements (R-125, 126) and 1.7.8. (R-126, 127). The advisory committee determination was sent to the Vice-President of Administration and Finance at FAU, Ms. Marie McDemmond. (R-128). The University President recommended award of the contract to Centex- Rooney. (Jt. Ex. 2, R-129). The University President is not authorized to award Board of Regents contracts. The Board of Regents awards contracts for projects of $500,000 or more. (Jt. Ex. 1, B-23, at page 16). Centex-Rooney could not utilize the two additional subcontractors, Kings Plumbing and Eagle Electric Distributors, because they were not listed on the Subcontractor/MBE form submitted by Centex-Rooney at the time of bid opening. (R-129, 130, 131). The University reconsidered its recommendation (Jt. Ex. 29), and subsequently recommended State Paving for award. (Jt. Ex. 32). The Handbook distributed by FAU at the pre-bid/pre-solicitation meeting contains a disclaimer which states that it is not intended to replace or supplement any information in the Project Manual or conditions for contract award (R-31, 132). State Paving met and exceeded the 15% MBE participation requirements for BR-65 (Jt. Ex. 14, R-20). Centex-Rooney's bid plus three alternatives was $9,590,000, and State Paving's bid plus three alternates was 9,592,500, so that the two bidders were $2,500 apart. (Jt. Ex. 7). At least seven of the twelve bidders on BR-658 met the 15% MBE participation goal (R-19). The FAU committee has reviewed many bids and has had several that met good faith efforts and several where the low bidders had met 15% MBE goal. (R- 117, 142). Ms. Jackson received a telephone call from Centex-Rooney regarding the FAU advisory committee's determination of non-compliance. (R-149). Ms. Jackson contacted Mr. Federico and reviewed the bid proposal and good faith efforts of Centex-Rooney on behalf of the Board of Regents. (R-148, 149). Ms. Jackson reviewed Centex-Rooney's good faith efforts as submitted to FAU and found non-compliance with 1.7.4 of the Special Conditions in the Project Manual for BR-658. (R-149). The Special Conditions of the Project Manual at page I-5 for 1.7.4, provide that the State University System requires that a bidder shall make no less than one written follow-up contact per initial contact. In the event a positive response is obtained, the Bidder shall request, in writing, a meeting between the MBE and Bidder's staff. The documentation required in the Special Conditions for 1.7.4 are copies of letters, telegrams and/or meeting rates. Ms. Jackson testified that the telephone log submitted by Centex-Rooney to document compliance with 1.7.4 did not meet the Special Conditions requirements because it was not a letter nor a telegram or a meeting note. (R-149). Nor did the telephone log reflect one written follow-up per initial contact as required by the University implementation of 1.7.4 in the Special Conditions (R-149, 157). Ms. Jackson contacted Centex-Rooney by phone and informed it of her finding that Centex-Rooney's reversal of the telephone calls and letters did not conform to the requirements of 1.7.4. (R-152). Thereafter, a meeting was arranged between Ms. Jackson and other BOR staff to provide Centex-Rooney an opportunity to provide supplemental evidence of good faith effort. (R-152). The Special Conditions section, at I-2, paragraph 1.1.2 provides that incomplete evidence which does not fully support each of the eight requirements of Paragraph 1.7 (good faith requirements) shall constitute cause for determining the bid to be unresponsive, except that the Owner may, at its option but not as a duty, seek supplementary evidence not submitted by the bidder. (R- 152). Centex-Rooney supplemented its submittal with 55 form letters dated January 24, 1992. These form letters were not considered satisfactory by Respondent as a written follow-up to each initial contact or to meet any other requirements in 1.7.4 because the letters were dated after the date of the bid opening. (Jt. Ex. 27, R-157, 158). Pursuant to Centex-Rooney's request at the February 25, 1992 meeting, Ms. Jackson again reviewed the company's documentation of its good faith efforts, evaluating the January 9, 1992 letters originally submitted as documentation for 1.7.4, as documentation for 1.7.3, and evaluating the telephone log, originally submitted as documentation of follow-up contact for 1.7.4 as initial solicitation documentation for 1.7.3. (R-153, 154). Considering Centex-Rooney's efforts in their best light, it was still determined by BOR that Centex-Rooney was not in compliance with 1.7.4. because there was no initial written contact and no written follow-up for each positive response. The telephone log is deemed to be analogous to meeting notes; however, the documentation viewed most favorably for Petitioner does not meet the written requirements of the Special Conditions which cannot be waived. (R- 157, 160, 161, 162, 163, 171). Two spread sheets were provided to BOR as supplemental documentation (Jt. Ex. 26). The Summary (Jt. Ex. 37) and other spread sheets (Jt. Ex. 36) were not provided to FAU by Centex-Rooney nor to Respondent in its subsequent review or as part of its option to permit supplementary documentation for good faith compliance. (R-55, 70, 71). Petitioner did not obtain the 15% MBE participation for BR 658. Petitioner did not meet the MBE requirements contained in 1.1.1 of the Special Conditions. (Jt. Ex. 1, page I-1). Two of the MBEs listed by Petitioner with its bid proposal were not certified by DGS at the time of bid submittal. Petitioner did not meet the MBE requirements contained in 1.6.1. (Jt. Ex. 2, I-3). The telephone log submitted by Petitioner was insufficient as required documentation. Petitioner did not meet the good faith efforts requirement set out in 1.7.4 of the Special Conditions (Jt. Ex. 2, page I-4). (R-175, Jt. Ex. 28, 29). The telephone log, as presented by Centex-Rooney was not a copy of a letter, a telegram or a meeting note. The telephone contact did not constitute a written follow-up contact per initial contact as required by the Special Conditions, nor did it suffice as a request in writing for a meeting between the MBE and bidder's staff if a positive response was obtained from an MBE. (R-149, 157). Conversely, as proposed by Petitioner, the telephone contact was not acceptable under the terms of the Special Conditions as an initial notice under 1.7.3 because the contact was not by letter as required. Also, there was not a letter for each initial telephone contact, and the January 9 letters did not request meetings with those MBEs who responded positively, nor did the letters provide evidence of any meeting notes. (R-157, 160, 161, 162, 163, 171).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Centex-Rooney's bid for project BR-658 was properly rejected by the Respondent, and that the Board of Regents may proceed with its award of the contract to the Intervenor, State Paving. DONE and ENTERED this day of May, 1992, 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 day of May, 1992. APPENDIX CASE NO. 92-2272BID Board of Regent's proposed findings were read and considered. The findings of the BOR were adopted except for Paragraph 22 which was deemed a conclusion of law. State Pavings' proposed findings were read and considered. The following list indicated which findings were adopted, and which were rejected and why: 1 through 3. Adopted. Was not specifically adopted, but is correct and is subsumed in other findings. Subsumed in other findings. Rejected that Centex-Rooney "freely admits" their bid failed to meet 15% requirement, a contrary to the evidence. Subsumed Paragraphs 32, 33 and 34. Subsumed Paragraphs 44, 45, 46 and 47. Subsumed Paragraph 50. Subsumed Paragraph 29 re documentation. Comments re Mr. Hamlin are argument and rejected. Rejected in part a restatement of statutes and law, and subsumed in other findings. Adopted that Centex-Rooney complied with 1.7.1, 1.7.2, and failed to comply with 1.7.3 and 1.7.4. Centex-Rooney did comply with 1.7.5 and 1.7.6 and 1.7.8. To the extent that the evidence in this case did not show Centex-Rooney's good faith efforts, 1.7.7 was not proven. Rejected as argument. Subsumed Paragraph 35. Subsumed Paragraphs 39 and 41. Rejected as argument. Subsumed in Paragraphs 55, 56 and 57. Rejected as conclusion of law. The Petitioner's proposed findings were read and considered. The following list which of the findings were adopted, and which were rejected and why. Paragraphs 1 through 11. Adopted. Adopted, Paragraph 23. True; adopted in part in Paragraph and in Paragraphs 23 and 28. 14 and 15. Rejected as irrelevant. True, subsumed in Paragraph 28. Subsumed in Paragraphs 32 and 46. True, but irrelevant. There was no allegation that Centex-Rooney failed to advertise. Subsumed in Paragraphs 28 and 33. Subsumed in Paragraphs 32, 48 and 52. True but irrelevant because Centex-Rooney had fewer than 15%. True but irrelevant. Subsumed in various paragraphs. Subsumed in Paragraphs 28, 32, 33, 34 and 35. True subsumed in Paragraphs 36 and 37. Subsumed in Paragraphs 44, 46, 47, 50 and 51. Irrelevant because it does not establish compliance with 1.7.3 and 1.7.4. BOR properly rejected this evidence which was presented after the bid opening. Copies furnished: Charles B. Reed, Chancellor Florida Board of Regents State University System 325 West Gaines Street Tallahassee, FL 32399-1950 James E. Glass, Esquire 6161 Blue Lagoon Dr., Suite 350 Miami, FL 33126 Jane Mostoller, Esquire 325 W. Gaines St., Suite 1522 Tallahassee, FL 32399-1950 J. Victor Barrios, Esquire 1026 Ease Park Avenue Tallahassee, FL 32301
The Issue The central issue in this case is whether the Petitioner is entitled to certification as a minority business enterprise.
Findings Of Fact Iris Reed and her husband, Mark Reed, own and operate a business known as Reed Landscaping, Inc., the Petitioner in this cause. Mrs. Reed is an American woman and owns 60 percent of the subject business. Her husband owns the remaining 40 percent. The Reeds previously owned a lawn maintenance business in New York but moved to Florida several years ago and started doing business as "Landscaping and Lawn Maintenance by Mark." Eventually, approximately 1992, "Landscaping and Lawn Maintenance by Mark" changed its name to Reed Landscaping, Inc. As to Petitioner and all former entities, Mrs. Reed has held an office position with the company while Mr. Reed has operated the field crew or crews. Mr. Reed has the experience and expertise necessary to handle the work at each site for the business. On the other hand, Mrs. Reed has the office and management skills to direct the "paperwork" side of the business. This includes insurance matters and personnel for the office. Mrs. Reed is particularly active in this business since she put up the capital that largely funded the business enterprise. Although her personal financial investment is primarily at risk, creditors and bonding companies require both Reeds to sign for the company and to be individually obligated as well. Mrs. Reed serves as President/Treasurer of the Petitioner and Mr. Reed is Vice-President/Secretary. Both are authorized to sign bank checks for the company. Mr. Reed has formal training and education in landscape architecture and horticulture as well as extensive experience in this field. Mrs. Reed is responsible for many decisions for the company but relies on the opinions of others and delegates, where appropriate, duties to others as well. Among the delegated duties are: all field work for the company (delegated to Mr. Reed, another foreman, or to crews working a job); estimating or preparing bids (an estimator helps with bids); bookkeeping; contract review; and purchasing (some of which she does herself with input from others). As to each delegated area, however, the Reeds stress teamwork; that they are all working together for the common good of the company.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Petitioner's application for certification as a minority business enterprise be denied. DONE AND ENTERED this 16th day of May, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 16th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5684 Rulings on the proposed findings of fact submitted by Petitioner: None submitted. Iris Reed on behalf of Petitioner submitted a letter summary of her position concerning the hearing which, if intended to be a presentation of fact, is rejected as argument or comment not in a form readily reviewable for either acceptance or rejection as required by rule. Rulings on the proposed findings of fact submitted by Respondent: Paragraphs 1 and 2 are accepted. Paragraph 3 is rejected as contrary to the weight of the credible evidence. Paragraphs 4 and 5 are accepted. COPIES FURNISHED: Joseph L. Shields Senior Attorney Commission on Minority Economic & Business Development 107 West Gaines Street 201 Collins Building Tallahassee, Florida 32399-2005 Iris F. Reed, Pro se 951 Southwest 121st Avenue Fort Lauderdale, Florida 33325 Veronica Anderson Executive Administrator Commission on Minority Economic & Business Development 107 West Gaines Street 201 Collins Building Tallahassee, Florida 32399-2005
Findings Of Fact Based on the stipulations and agreements of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing, I make the following findings of fact: The costs and attorney fees sought by BTST in the amount of $2,344, are adequately substantiated and constitute reasonable costs and attorney fees for the representation of BTST in DOAH Case No. 88-3885. DOAH Case No. 88-3885 resulted in a Final Order granting recertification as a minority business enterprise to BTST. Therefore, BTST was a prevailing party in that case. The underlying agency action that resulted in DOAH Case No. 88-3885, was a Department letter of July 18, 1988, to BTST which notified BTST that its application for recertification was denied, stated the reasons for denial, and advised BTST of its right to request a hearing if it was dissatisfied with the Department's decision. The Department's letter of July 18, 1988, "initiated" the subsequent formal administrative proceedings. Business Telephone systems of Tallahassee, Inc., is a "small business party." The Department of General Services has the responsibility to certify and recertify minority business enterprises. The Department has developed a procedure which is followed by the Minority Business Enterprise Assistance Office in processing applications for certification and recertification. Upon receipt of an application, the entire business file is assigned by the supervisor of certification activities to an eligibility examiner, frequently referred to as a "reviewer." The reviewer conducts a desk audit and review, searches the Division of Corporation records, and by letter requests any items omitted from the application. The applicant then has 30 days in which to respond by sending the requested information to the Minority Business Enterprise Assistant Office. After receipt of requested additional information, the reviewer schedules an on-site interview with applicants whose eligibility for MBE status cannot be determined immediately. After the on-site review, the reviewer listens to the tape recording of the interview and completes the on- site review questionnaire form. At this point, all documents and on-site interview responses are reviewed by the eligibility examiner for the purpose of preparing a recommendation to grant or deny certification or recertification. The supervisor of certification activities reviews the recommendation and all materials related to the business for the purpose of either concurring or questioning the recommendation. The file is then referred to the coordinator of the Minority Business Enterprise Assistance Office for independent review. If the recommendation is for denial of MBE certification or recertification, the file is forwarded to the Office of the General Counsel for review of all documents, information, recommendations and findings by a staff attorney. By memorandum to the Minority Business Enterprise Assistance Office, the staff attorney will either concur in the recommendation or raise legal questions. In the case of concurrence, a letter of denial is prepared. Legal questions about the potential denial are generally resolved by discussion with all involved staff persons. BTST, a company principally engaged in sales, installation, and service of telephone systems and equipment, filed an application for recertification as a Minority Business Enterprise on April 13, 1988. The application was assigned to Stephen Johnson, an eligibility examiner of the Minority Business Enterprise Assistance Office. The initial recommendation to deny recertification of Petitioner was made by Stephen Johnson. Stephen Johnson received training by the Department in minority business enterprise certification and recertification review during his tenure at DGS. As the first step in the review process, Stephen Johnson, the eligibility examiner, performed a desk audit of the application, noting changes in ownership, management, daily operations, and domicile of the company. He also conducted a document search of State of Florida corporate records which revealed different corporate ownership than that which BTST stated in the application and different composition of the Board of Directors of three non- minority members and two minority members. Upon request of the eligibility examiner, additional documents were submitted by BTST. These documents named Mr. William Nuce as president and treasurer of BTST, listed a Board of Directors composed of one minority person and three non-minority persons, and included a BTST lease agreement signed by William Nuce as President of BTST and attested by Nancy Nuce, Secretary of BTST. An amendment to the lease dated May 4, 1988, was signed in the same manner. Upon review by the eligibility examiner and his supervisor of the information submitted by BTST, changes in the business raised the question of whether a minority person controlled the management and operations of the business. The application for recertification revealed that two of the three women owners of BTST "no longer performed any duties for the company." The minority owner who left the company possessed significant technical knowledge about the telephone systems business which in previous certifications of BTST had been a dispositive factor in the determination. William Nuce had not been working full-time for the company until January 1988. Until that time, the company had been run by three women, one being an out-of-state resident. With the concurrence of his supervisor, the eligibility examiner scheduled an on-site visit to BTST for the purpose of acquiring a new description of how the business operated and to establish whether the applicant owner was eligible for MBE certification. The on-site interview was tape recorded During the on-site review, Mrs. Nuce, the minority owner of BTST, made statements which were considered significant by DGS minority certification reviewers. Mrs. Nuce explained decision-making by her husband William Nuce and herself at BTST as "It is really a partnership." In response to the question, "Is anyone considered a supervisory person?", Mrs. Nuce stated, "Well, I guess Bill would be." Then she was asked, "Is he the installer supervisor?" and Nancy Nuce replied, "Yeah, I would say so." Continuing the on-site interview, in response to the question, "[W]ho employed Don?" Mrs. Nuce replied, "We both went to Jacksonville to where Don lived and interviewed Don in Jacksonville and we discussed it on the way back and when we got back Bill called him and offered him the job." She also said that William Nuce had invested "almost twice" as much as she had in the business. The occupational license issued by the City of Tallahassee was in the name of William Nuce. Concerning a truck which was the only large piece of equipment of the business, Mrs. Nuce said, "Bill signed the guarantee on it." Mrs. Nuce had never received a salary from BTST. During the on-site review, Mrs. Nuce confirmed the composition of the Board of Directors as having four members, one minority person and three non-minority persons. After this on-site interview, the eligibility examiner came back to his office, listened to the interview tapes, and reviewed his notes. He came to the conclusion that the minority owner of BTST did not have the capability, knowledge, and experience required to make the critical decisions in that the company heavily relied on Mr. Nuce's 20 years of experience in the installation and servicing of telephone systems, rather than Mrs. Nuce's limited prior experience and training in the bookkeeping area. The eligibility examiner further relied, as a basis for denial, on the fact that the Board of Directors at the time of the decision to deny recertification were Nancy' Nuce; William Nuce, a non-minority person; Peggy Ingram, a non-Florida resident (and therefore a non-minority person); and Don Ingram, a non-minority person. The corporate bylaws indicated that a majority of the directors legally controlled the management of the company. Since Mrs. Nuce was the only director who was a minority, the eligibility examiner concluded that, pursuant to the statutes, Mrs. Nuce did not have the legal authority to control the corporate Board of Directors and, therefore, the business of thee corporation.. After consultation and review of the BTST file, Stephen Johnson and Marsha Nims, the Labor Employment and Training Manager of the Minority Business Enterprise Assistance Office, reached the tentative decision to deny the recertification application of BTST. At the time of the decision to deny recertification of BTST, Ms. Nims was the Labor Employment and Training Manager in the Minority Business Enterprise Assistance Office and the supervisor of Stephen Johnson, the eligibility examiner. She had been with DGS since March of 1986. Her duties included supervision of the professional staff who conducted eligibility reviews of applications, assistance in eligibility determinations, advising the coordinator, supervision of staff involved in retention of records, preparation of documents, and preparation of the monthly MBE Directory. In evaluating the application for recertification of BTST, Marsha Nims reviewed the application and supporting documentation, the Desk Review and Audit by Stephen Johnson, the additional documents obtained by Stephen Johnson from Business Telephone Systems of Tallahassee, Inc., the Bylaws of BTST, the memo from Stephen Johnson to Marsha Nims, the reviewer's case management log, the on- site review questionnaire form and comments completed by Stephen Johnson, the denial recommendation drafted by Stephen Johnson, and the file of BTST on which previous certification had been based. Marsha Nims relied upon the information about BTST complied by the eligibility examiner. She had no reason to doubt the credibility of Stephen Johnson, the eligibility examiner. At the time of the decision to deny recertification to BTST, Marsha Nims was familiar with the Florida Statutes which governed certification and recertification of minority business enterprises as well as Chapter 13-8, Florida Administrative Code, which the Department promulgated to implement the statutes. Marsha Nims was familiar with the relevant Final Orders of the Department of General Services and the related Recommended Orders of the Division of Administrative Hearings. She concluded that the corporate structure analysis and the determination of lack of control over the management and daily business operations was consistent with the legal conclusions established in prior Department Final Orders denying certification. Following review by Ms. Nims, the entire BTST file described in Finding of Fact Number 15 was referred to Carolyn Wilson-Newton, the Minority Business Enterprise Assistance Officer Coordinator. Mrs. Wilson-Newton was the person charged with making the final decision to grant or deny certification and recertification to applicants. At the time of the decision to deny recertification, Mrs. Wilson- Newton was familiar with the Florida Statutes which govern certification and recertification of minority business enterprises, Chapter 13-8, Florida Administrative Code, and the relevant Final Orders of the Department of General Services and Recommended Orders of the Division of Administrative Hearings. Carolyn Wilson-Newton concurred with the recommendations of Stephen Johnson and Marsha Nims to deny recertification as set forth in the denial recommendation prepared by Stephen Johnson, and made the decision to deny minority business enterprise recertification. The proposed denial was approved by Sandra Allen, an attorney in the General Counsel's Office with previous experience in review of minority business enterprise decisions. The denial letter was mailed to the applicant on July 18, 1988. Although BTST prevailed in Case No. 88-3885, it is important to note that some of the evidence presented at the formal hearing in that case was substantially different from the information furnished to DGS prior to the July 18, 1988, denial letter. Some of the differences resulted from new developments (such as eleventh-hour stock purchases and changes in the corporate provisions regarding directors). Other differences resulted from more careful and precise descriptions than had been furnished earlier. Four competent, experienced MBE certification reviewers for DGS concluded that the information in the possession of the Department at the time of the decision to deny recertification of BTST was sufficient to warrant denial of recertification of the Petitioner. The denial of recertification had a reasonable basis in fact at the time of the decision. This is especially true when note is taken of the fact that BTST's corporate provisions regarding directors at the time of the decision were essentially the same as corporate provisions which had been the basis for denial of certification in other Department final orders.
The Issue The issue in the case is whether the Petitioner’s certification as a Minority Business Enterprise (MBE) should be granted.
Findings Of Fact Locker Services, Inc., is a business owned by Kimberly Gates and her husband, James Gates. Kimberly Gates is a Caucasian female. There is no evidence that James Gates is within a protected classification under the minority business enterprise certification program. Kimberly Gates is the president of the corporation and owns 60 percent of the stock. James Gates is the vice-president of the corporation and owns the remaining 40 percent of the stock. The bylaws on record for Locker Service, Inc., establish that the Board of Directors directs the corporation’s business affairs. The Board of Directors consists of Kimberly Gates and James Gates. According to the by-laws, both Mrs. and Mr. Gates manage the business. Both Kimberly Gates and James Gates are authorized to sign checks on the corporate checking account. A General Indemnity Agreement underwrites the corporation’s bonding requirements. James Gates is a signatory on the agreement and is personally liable as an Indemnitor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Labor and Employment Security enter a final order denying the Petitioner’s application for certification as a minority business enterprise. DONE AND ENTERED this 27th day of March, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 27th day of March, 2000. COPIES FURNISHED: Kimberly Gates, President Locker Service, Inc. 2303 Bayshore Drive Belleair Beach, Florida 33786 Joseph L. Shields, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Sheri Wilkes-Cape, General Counsel Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Mary Hooks, Secretary Department of Labor and Employment Security Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
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 Petitioner Haul-It, Inc., is a trucking company in the business of hauling road building materials. It owns 19 trucks and 13 trailers worth about $106,000; and owes between $75,000 and $79,000 to a bank. Occasionally petitioner engages additional trucks and drivers. All but eight of its 15 or 16 employees are truck drivers. Haul-It, Inc., was organized in 1973. Jack Taylor and his father started the business but later sold out to Hubert E. Real, the president, half- owner and operator of Columbia Paving, and Wiley Jinwright, a 24-year employee of Columbia Paving. Mr. Jinwright became president of Haul-It, Inc., and Jack Taylor stayed on as truck foreman. Messrs. Real and Jinwright each owned 20 shares of stock, representing half interest in petitioner. Columbia Paving itself has never held any of the 40 shares of stock that petitioner has issued. In November of 1980, Mr. Real conveyed all 20 of his shares to his wife, Helen Real; and Mr. Jinwright conveyed one share to Mrs. Real. Both transfers of stock to Mrs. Real were gratuitous. She knew at the time that her ownership might help Haul-It, Inc., qualify as a minority business enterprise. In addition, Mr. Real "had had a couple of heart attacks" (T. 14) and Mrs. Real "thought it would be nice to have a related [to Columbia Paving] business." (T. 14.) The evidence did not reveal whether Mr. Real has spent more, less, or the same amount of time with petitioner's affairs since his divestiture as before. Mr. Real remains active as president of Columbia Paving. From November of 1980 to the time of hearing, Mrs. Real has owned 52.5 percent of petitioner's stock and Mr. Jinwright has owned 47.5 percent. Petitioner's only offices are housed in a trailer located on land owned by Columbia Paving. Haul-It, Inc., pays Columbia Paving rent for the land on which its office trailer, trucks, and other equipment are parked. At the time of the hearing, between 70 and 80 percent of Haul-It, Inc.'s work was being performed under contract to Columbia Paving. As far as the evidence showed, petitioner has always performed most of its services under contract to Columbia Paving. Although it has had other customers, Columbia Paving is petitioner's only regular customer. (T. 27.) Petitioner uses Columbia Paving's computer to keep its books and shares a bookkeeper with Columbia Paving. Each company pays the bookkeeper a separate salary. Mrs. Real sits on Columbia Paving's board of directors. Neither Columbia Paving nor any other entity uses petitioner's hauling equipment unless it has contracted to do so. When Haul-It, Inc., "bid[s] through Columbia Paving" (T. 39) in response to invitations by the Department of Transportation, Columbia Paving personnel check the bid over to make sure that it "fits whatever plan or whatever estimates they feel are in order." (T. 40.) Soon after she became owner of a majority of petitioner's Stock, Mrs. Real became petitioner's vice-president, secretary, and treasurer, even though she had had no prior experience in the trucking business. Mr. Jinwright remains president of Haul-It, Inc. It was also in November of 1980 that Haul-It, Inc., applied for certification as a minority business enterprise. At that time and for some months afterward, Mrs. Real was not working for Haul-It, Inc., on any regular schedule. On the basis of the information petitioner furnished with its application, respondent, in November of 1980, "certified them for 12 months, on the condition that an on-site review would be conducted and at that time the decision would be made as to the ownership and control and whether this minority business enterprise should be continued as certified." (T. 61.) In April of 1981, respondent's Mr. Nath conducted an on-site review. At that time, Mr. Nath requested additional documents which petitioner eventually mailed to respondent. In September of 1981, respondent for the first time communicated to Haul-It, Inc., its intention to disqualify petitioner as a minority business enterprise. After receiving this news, Mrs. Real began going to work for petitioner daily. She has an office in the trailer that she shares with Mr. Jinwright, whose role in Haul-It, Inc., was reduced to cosigning checks when Mrs. Real began working full time. Most of Mr. Jinwright's time is now spent as Superintendent of Columbia Paving's four asphalt plants. Even so, he still draws a salary from Haul-It, Inc., equal to Mrs. Real's salary. Despite their respective titles, both Mr. Jinwright and Mrs. Real act on the assumption that she, rather than he, has ultimate authority in the conduct of Haul-It, Inc.'s business. Mrs. Real has full authority to hire and fire, authority which she has delegated, in the case of the truck drivers, to Jack Taylor. She has the final say on all questions of policy and operations that arise in the business. Haul-It, Inc., cannot borrow money or make expenditures without her permission. Jack Taylor and two other employees buy for Haul-It, Inc., but she cosigns all checks with Mr. Jinwright. She has not learned how to prepare a written bid for the Department of Transportation, although she is involved with bidding. Mrs. Real relies heavily on Jack Taylor's bidding expertise, as have petitioner's other owners. Petitioner's proposed findings of fact and conclusions of law and respondent's proposed findings of fact, conclusions of law, and recommendation reflect the good work done in this case by counsel on both sides. To the limited extent proposed findings have not been adopted, they have been deemed immaterial or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny Haul-It, Inc., certification as a minority business enterprise. DONE AND ENTERED this 3rd day of March, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1982. COPIES FURNISHED: Patrick E. Hurley, Esquire Post Office Drawer 1049 Tallahassee, Florida 32302 Vernon L. Whittier, Jr., Esquire Ella Jane P. Davis, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
