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
The Issue Whether Petitioner's application for certification as a minority business enterprise should be granted.
Findings Of Fact Virginia Valletti, an American woman, within the meaning of Section 288.703, Florida Statutes, holds 75 percent of the stock of Petitioner, Commercial Air Tech, Inc., (Commercial Air). Sam Valletti, the husband of Virginia Valletti, owns 15 percent of the stock of Commercial Air, and the two daughters of the Valetti's each owns five percent of the stock of the business. Sam Valletti is not a minority person as defined in Section 288.703, Florida Statutes. Article II, Section 1 of the bylaws of Commercial Air provides that "All Corporate powers shall be exercised by or under the authority of, and the business affairs of the corporation shall be managed under the direction of, the Board of Directors." The bylaws state that the corporation shall have two directors. Those directors are Virginia and Sam Valletti. Article III, Section 2 of the bylaws of Commercial Air sets out the duties of the President of the company as follows: The President shall be the chief executive officer of the corporation, shall have general and active management of the business and affairs of the corporation subject to the directions of the Board of Directors, and shall preside at all meetings of the shareholders and Board of Directors. Commercial Air provides heating, ventilation, and air conditioning (HVAC) services and is required by Florida statutes to be qualified by a licensed contractor. Sam Valletti holds the contractor's license which qualifies Commercial Air. Virginia Valletti testified that she does not believe that she could pass the contractor's test to become the qualifying agent for the company. Sam Valletti is authorized to sign checks on the account of Commercial Air, but Virginia Valletti signs the majority of the checks for the business. Sam Valletti signed the business lease for Commercial Air. Sam Valletti or a male employee, signs the contracts on behalf of the business. According to Virginia Valletti, the two men sign the contracts for appearance sake because the HVAC business is a male-dominated industry. According to the application submitted to the Respondent, Department of Labor and Employment Security, Minority Business Advocacy and Assistance Office (Department), Virginia Valletti's major responsibilities in the business are as follows: Open and close office Monday through Friday Transact all accounts receivables and payables Answer customer calls and inquiry's [sic] all on customers to insure their needs are being met Dispatch technicians to job sites Compose all company forms and form letters and contract forms Track job costs Analyze profit & loss statement, balance sheet and other financial reports Oversee office personnel - hire, review (all personnel) and fire (office only) Shop and purchase all insurance (workman's comp., liability, bond, etc) Figure payroll and all associated taxes Negotiate credit lines and loans Track truck maintenance and inventory Place orders with vendors and track shipments to job sites The application submitted to the Department lists Sam Valletti's major responsibilities as follows: Estimates jobs in construction and service Troubleshoots equipment problems with technicians Recommends and designs new installations with property managers and owners Keeps up to date on So. Florida code changes, labor laws, and union regulations Finds new resources and seeks out leading edge technological advances Customer liaison for technical questions Hires, reviews, and fires service personnel Purchases company vehicles Sam Valletti receives approximately $16,000 per quarter in wages from Commercial Air, and Virginia Valletti receives approximately $3,000 in wages.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Commercial Air, Tech Inc.'s request for certification as a minority business enterprise. DONE AND ENTERED this 28th day of April, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 28th day of April, 1998. COPIES FURNISHED: Joseph L. Shields, Esquire Florida Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Edmond L. Sugar, Esquire 950 South Federal Highway Hollywood, Florida 33020 Douglas L. Jamerson, Secretary Department of Labor and Employment Security Suite 303, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Edward A. Dion, General Counsel Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189
Findings Of Fact Terrell Oil Company (TOC) was incorporated in 1986 with Grady Terrell, Jr., as president; Richard W. Gilliam and J. Anthony Belcher as board director members. As of the time of this application, Grady Terrell owned 60 percent of the stock of the company, Belcher owned 20 percent, Gilliam owned 19 percent, and Anna Alverez, company secretary, owned 1 percent. The company was started with a $6000 loan made by Grady Terrell, Jr., which sum was borrowed from C & S National Bank (Exhibit 16). Grady Terrell, Jr., is a black male and, therefore, designated as a member of a minority and/or disadvantaged class by statute. Neither Belcher nor Gilliam invested capital in TOC, but received their stock in the company for services in kind. The By-Laws of TOC provide that all times at least 51 percent of the stock in TOC shall be owned by "minority individuals" as that term is defined in state and federal statutes applicable to minority business enterprises or disadvantaged business enterprises. Several lines of credit obtained by TOC from C & S Bank were guaranteed by Grady Terrell, Jr. (Exhibits 9-12). No loans to TOC were guaranteed by anyone else. Anthony Belcher resigned from the Board of Directors of Belcher Oil Company in 1982 and thereafter served as a consultant for approximately two years. He has not been affiliated with Belcher Oil Company since that time (Exhibit 15). Grady Terrell, Jr., executed the lease for the property occupied by TOC for an office (Exhibit 6). Grady Terrell, Jr., approves all major purchases, all invoices for payment, and other bills for payment except routine monthly bills for utilities, vehicle payments, etc., at TOC. In connection with the line of credit with C & S Bank, TOC assigns most of its receivables to the bank for collection. TOC is involved with bidding on and supplying various agencies of government (federal, state and local) with petroleum supplies. To make these deliveries, TOC owns two small tank vehicles of 1500 and 2500 gallon capacities, respectively. (The record is unclear whether the 2500 gallon tank vehicle replaced the 1500 gallon truck.) When necessary to deliver larger quantities than can be hauled in TOC's trucks, a commercial carrier is utilized. In all cases, however, TOC takes ownership of the oil at the loading site. TOC entered into a lockbox agreement with Belcher Oil Company in which Belcher extended TOC a line of credit to purchase petroleum products from Belcher. An arrangement was made with the bank to establish a special account into which the customer would remit payment for product delivered and the bank would credit Belcher's account for the invoice price. This lockbox arrangement with Belcher has been inactive for several years. At one time, TOC purchased nearly all of its products from Belcher, but that is no longer true. Richard W. Gilliam is the executive vice-president of Terrell. He receives no salary from TOC, but is reimbursed for out-of-pocket expenses. He has the authority to accept bids for the purchase of fuel from dealers and to execute contracts with purchasers. Gilliam has operated other businesses in the past and has considerably more experience in business matters than does Grady Terrell, Jr. However, no evidence was presented upon which a finding can be made that Gilliam is the person actually running TOC, and Grady Terrell, Jr., is but a figurehead. It is a fact that Grady Terrell, Jr., is legally in charge of, and has the authority to, fully direct the operations of TOC. In addition to the tank truck(s), TOC has leased a service station where three 3000 gallon tanks are located in which TOC can store inventory if desired. Grady Terrell, Jr., also executed this lease. TOC has been certified as a DBE by several governmental agencies, including the Defense Logistics Agency who contracts with TOC to deliver petroleum products to ships in Miami; and certification has been denied by more than two agencies to which applications were made. No evidence was presented that TOC failed to submit all information requested by DOT.
Recommendation It is recommended that Terrell Oil Company, Inc., be certified as a Disadvantaged Business Enterprise. DONE and ENTERED this 17th day of May, 1990, in Tallahassee, Florida. K. N. AYERS 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 17th day of May, 1990. COPIES FURNISHED: John L. Chamblee, Jr., Esquire 202 Cardy Street Tampa, FL 33601 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Attn: Eleanor F. Turner, MS 58 Robert Scanlan Interim General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact The name Zorba's Restaurant and Lounge has been continuously used by the Petitioner or its predecessors in business as the name of a restaurant and lounge located at 504-508-510 Athens Street, Tarpon Springs, Florida, for a period of over ten years. Kaliope Padides was at one time director of a corporation named Zorba Lounge, Inc. which originally owned and operated the aforementioned business. In 1975 this business was sold and the corporation, Zorba Lounge, Inc. was dissolved involuntarily on November 14, 1975. The purchaser was required to continue using the name Zorba Restaurant and Lounge. Two or three years thereafter, the brother-in-law of Kaliope Padides, Peter Padides, bought the business and operated it as a sole proprietorship until December, 1982. At that time, the business burned and Peter asked Kaliope and her husband, Nicholas, to assist him in operating the business. They elected to form a corporation and instructed their attorney to reserve the name Zorba's. On December 23, 1982, counsel for Anthanasios and Linda Maillis sent a letter to the Division of Corporations, State of Florida, reserving the name Zorba's Restaurant and Lounge, Inc. The Maillises had instructed their counsel to reserve the name Zorba's Restaurant and Lounge, Inc. although they were aware of the business operated by Peter Padides, because they thought the name Zorba's Restaurant and Lounge, Inc. was not protected. On December 27, 1982, counsel for Kaliope, Nicholas and Peter Padides sent a letter to the Division of Corporations, State of Florida, reserving the name Zorba, Inc. On December 27, 1982, the Division of Corporations, State of Florida, reserved the name Zorba's Restaurant and Lounge, Inc. and Zorba, Inc. and forwarded to the respective parties confirmation of said name reservations. On January 4, 1953, the Articles of Corporation for Zorba, Inc. were filed and sealed by the Secretary of State, State of Florida on January 13, 1983. On January 6, 1983, the Articles of Corporation for Zorba's Restaurant and Lounge, Inc. were filed and sealed by the Secretary of State, State of Florida on January 10, 1983. The Maillises reserved the name and incorporated in the name Zorba's Restaurant and Lounge, Inc. knowing the existence of the business operating in the name of Zorba's Restaurant and Lounge and with the intent to capitalize on the use of that name in operating a similar business located in the same geographic area. The reservation of this name was made in bad faith, and for the purpose of engaging in unfair competition.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that the Respondent's name of Zorba's Restaurant and Lounge, Inc. be rejected and its reservation of the name revoked. DONE and ORDERED this 28th day of April, 1983, in Tallahassee, Florida. STEPHEN F. DEAN 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 28th day of April, 1983. COPIES FURNISHED: John G. Fatolitis, Esq. One North Pinellas Avenue Tarpon Springs, Florida 33589 Edwardo R. Latour, Esq. Yanchuck, Thompson & Young, P.A. 1100 South Pinellas Avenue Tarpon Springs, Florida 33589 William G. Stevens, III, Esq. Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 Honorable George Firestone Department of State The Capitol Tallahassee, Florida 32301
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.
Findings Of Fact Petitioner was incorporated on November 17, 1980, and, since that time, has been primarily engaged in the base work and asphalt paving business. James L. Sauder and his wife, Annette, were the incorporators of Petitioner and continue to serve as Petitioner's two directors. From the inception of the corporation through the present time, James Sauder has been Petitioner's president while Annette Sauder has filled the offices of both secretary and treasurer of Petitioner. Additionally, at all times material hereto, James Sauder has been the registered agent for the corporation. Initially, James Sauder drew a salary of $220 a week, while Annette Sauder received no salary for her work. Thereafter, the Sauders decided to declare Petitioner a "subchapter S. corporation" for income tax purposes. At the end of Petitioner's first and second years of operation, all of the undistributed shareholders' profit of the company was drawn out by James Sauder only. Petitioner's income tax returns for both 1981 and 1982 reflect that James Sauder is the stockholder, that he owns 170 shares of Petitioner's stock, and that he devotes all of his time to the business. Petitioner's bylaws describe the duties of the officers of the corporation and provide that: The President shall be the chief executive officer of the corporation, shall have general and active management of the business and affairs of the corporation subject to the directions of the Board of Directors, and shall preside at all meetings of the shareholders and Board of Directors. The bylaws further provide, in addition to some specific duties, that the secretary and the treasurer are also required to ". . . perform such other duties as may be prescribed by the Board of Directors or the President." Accordingly, Petitioner's secretary and treasurer work under the supervision and control of the president. Petitioner's articles of incorporation authorize Petitioner to issue 250 shares of stock with a five-dollar par value. On August 20, 1980, Petitioner's stock certificate No. 1 was issued to James L. Sauder for 125 shares of Petitioner's stock. No shares were issued to Annette Sauder until March 1, 1983, when 70 shares of James Sauder's stock were transferred to her using Petitioner's stock certificate No. 2. At the same time, an additional 55 shares of stock were issued to James L. Sauder using Petitioner's stock certificate No. 3. Accordingly, James Sauder owns 110 shares of Petitioner's stock, while Annette Sauder owns only 70 shares of Petitioner's stock. The occupational license issued to Petitioner by the City of Key West, Florida, for the 1982-83 year lists James L. Sauder as the owner of Petitioner. Decisions as to hiring and firing, the purchase and/or financing of equipment and other personalty, the jobs on which bids will be submitted and the amounts of bids, the supervision of Petitioner's employees, and even actual paving work are duties performed by both James and Annette Sauder. Although operating Petitioner's business appears to be a joint effort on the part of both James and Annette Sauder, it is clear that the ultimate decision maker, as well as chief executive officer, is James Sauder. In addition to testifying primarily using the word "we," the following is illustrative of the testimony given by Annette Sauder as to whether she or her husband controls the operation of Petitioner: (Tr. 72.) Q. If your husband told you that he didn't want a piece of equipment, but you wanted it, would you go out and get it? A. Not unless I wanted a divorce, I don't think I would. On November 28, 1983, Respondent denied Petitioner's application to be certified as a Minority Business Enterprise.
Recommendation Based on 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 and, specifically, Women's Business Enterprise. DONE and RECOMMENDED this 23rd day of July, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 23rd day of July, 1984. COPIES FURNISHED: John R. Sutton, Esquire 7721 South West 62nd Avenue, First Floor South Miami, Florida 33143 Mark A. Linsky, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064 Paul N. Pappas, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301-8064
The Issue Whether Petitioner was discriminated against by Respondent, based upon his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. As such, he is a member of a protected class. Petitioner was employed as a co-manager at a Delchamps grocery store in Destin, Florida. The Destin store was a high- volume operation. In January 2001, Bruno's, Inc., acquired the Delchamps' Destin store and converted the store to a Bruno's supermarket. Petitioner was retained in the co-manager position while Bruno's conducted a full assessment of the staff and store. Under the Bruno's assessment, the company found several employees, including white employees, underperforming pursuant to Bruno's goals for high volume stores. Petitioner was one of the individuals found to be underperforming at the Destin store. On November 4, 2001, Bruno's moved Petitioner as a co- manager to a lower volume store in Niceville so that he would have a better opportunity to grasp management protocol under the Bruno's umbrella and develop professionally. During the same time period, another employee at the Destin store, Steve Aaron, who is Caucasian, was transferred to another store for the same reason. Petitioner’s duties and work conditions at the new store did not materially change. As before, all managers in the store, including himself, regardless of race, had the same hours, had the same working conditions in the store and closing the store, had the discretionary authority to hire additional staff as needed, and had an opportunity to use their discretionary authority in managing and operating the store. Petitioner’s pay and benefits at the new store, also, did not change. The transfer was abrupt since Petitioner was told to and did report to his new store immediately. The reason for the transfer was not fully explained to him. However, other than to inquire about the reason for the transfer, Petitioner did not complain about or object to the transfer even though he was aware of Bruno’s policy against racial discrimination and the various mechanisms to report such activity. There was no evidence that Petitioner’s transfer was based on Petitioner's race. Neither the abruptness nor the lack of explanation supports a finding that the transfer was based on Petitioner’s race since the transfer was part of Bruno’s review and adjustment process for the stores it had acquired, and other employees who were not members of Petitioner’s protected class were also transferred. Indeed, the evidence showed that employees of all races were and continue to be transferred from one store to another under Bruno's operations for business reasons, such as the reason that precipitated Petitioner’s transfer. Such employee development and training are legitimate, non-discriminatory reasons for the transfer of Petitioner to another store. Petitioner offered no evidence that demonstrated the reason for his transfer was pretextual. Moreover, Petitioner's first complaint based on race regarding his transfer was filed on January 14, 2003, more than a year after his transfer and is therefore time barred. In June 2002, Bruno's Supermarkets received separate complaints from four female employees at the Niceville store that Petitioner had subjected them to unwelcomed touching, rubbing, massaging and/or kissing. The complaining employees were Dawn Lawson, Christina Gore, Donna Ermilio, and Erin Epperson. None of the young women that placed complaints against Petitioner were at risk of losing their job nor did they have anything to gain in placing the complaints against Petitioner. Dawn Lawson was an assistant deli bakery manager and subordinate of Petitioner. She complained that while at work Petitioner would rub her arms, massage her shoulders, and kissed her once while she was on the phone. All the aforementioned was unwelcomed by Ms. Lawson and made her feel uncomfortable. Petitioner did not deny these actions, but thought he was making an effort to comfort Ms. Lawson who was experiencing some personal problems. Ms. Lawson also accused Petitioner of spending an inordinate amount of time in the deli area of the store. However, the evidence demonstrated that Petitioner had been instructed to closely monitor the deli operation because it was below the standards Bruno’s expected of its deli operations. Ms. Lawson also complained that while at work, Petitioner gave her several gifts of alcohol and a card in which Petitioner wrote, "Know you are a very special someone" and drew several ‘X’s and ‘O’s. Petitioner admitted to giving the alcohol and card to Ms. Lawson, but again thought he was being friendly and trying to comfort her. Petitioner denied drawing the ‘X’s and O’s on the card. However, Petitioner’s denial is not credible since the drawing is in the same type of ink as the writing and the letters are similar to the handwritten portions of the card. Additionally, on New Year's Eve, December 31, 2001, Petitioner gave Ms Lawson a miniature bottle of Southern Comfort. Later, Petitioner called Ms. Lawson twice at her home in the early morning between 1:30 a.m. and 3:00 a.m. Ms. Lawson felt very uncomfortable regarding these calls. Clearly, the kiss, the late night phone calls, and the note violated Bruno’s anti-harassment policy. More importantly, at the same time Petitioner gave Ms. Lawson the Southern Comfort, he gave Erin Epperson, a co- worker of Ms. Lawson, a miniature bottle of alcohol. Petitioner knew Ms. Epperson was 19 years old and under the age at which she could legally possess or drink alcohol. Petitioner denied giving Ms. Epperson any alcohol. However, given the demeanor and candor of the witnesses, Petitioner’s denial is not credible. Providing alcohol to a minor was in violation of state law, could have caused the store to lose its liquor license or incur other penalties, and violated the store's policy of not providing alcohol to minors. This act alone justified Petitioner’s termination. Donna Ermillio, a cashier, utility clerk, and a subordinate of Petitioner similarly complained that while she was at work Petitioner would rub her arms, massage her shoulders, compliment her arms, feet and hands and tell her she was beautiful and too much "of a woman to be as young" as she was. All the aforementioned was unwelcomed by Ms. Ermillio and made her feel uncomfortable. Again, Petitioner thought that he was trying to soothe Ms. Ermilio, who was clearly nervous around him. He noticed others’ hands and feet because he had a friend who was a hand and foot model. However, Ms. Ermilio’s complaints are consistent with the other complaints received by Bruno’s and show a pattern of intrusive behavior on Petitioner’s part. Christina Gore, a cashier, customer service representative, and subordinate of Petitioner complained that Petitioner rubbed her, massaged her, and kissed her while she was at work. All the aforementioned was unwelcomed by Ms. Gore and made her feel uncomfortable. Petitioner admitted kissing Ms. Gore because she had graduated from high school. The kiss occurred after her boyfriend had walked away and Petitioner, jokingly, told Ms. Gore that he couldn't have kissed her while her boyfriend was around. Again, Petitioner’s actions were overly intrusive. In response to these complaints, the company conducted a timely and thorough investigation. The investigation included interviews and statements from Petitioner, Ms. Ermillio, Ms. Lawson, Ms. Gore, and Ms. Epperson. The evidence did not demonstrate any deficiency in the investigation. At the conclusion of the investigation, the investigator, the district manager, the store manager, a representative from the legal department, and the human resources director met and reviewed the investigation and evidence. After all the aforementioned parties assessed all the evidence, the team unanimously decided to terminate Petitioner’s employment. Bruno's terminated Petitioner because he violated the company's anti-harassment policy and gave alcohol to a minor employee. There was no evidence that Bruno’s did not consistently apply these policies to other employees in its organization. The only evidence Petitioner presented regarding the consistent application of these policies was that a Danny Johnson allegedly sexually harassed Dawn Lawson and was not terminated and that a Dan Gaston also allegedly sexually harassed "someone." However, Dawn Lawson never complained to the company regarding Danny Johnson and testified that Mr. Johnson had never harassed her. Petitioner had no personal knowledge about Mr. Gaston's alleged harassment and could not provide any details. The human resources director for the store testified that no one had ever made a sexual harassment complaint against Mr. Gaston. Therefore, Petitioner failed to present evidence showing a similarly situated employee that allegedly committed the same acts as Petitioner and was not terminated. Based on the evidence, Petitioner had legitimate, non- pretextual reasons for terminating Petitioner, and this action should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing this action. DONE AND ENTERED this 16th day of June, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 16th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert L. Young, Jr. 409 Elaine Avenue Fort Walton Beach, Florida 32548 Dan Burchfield Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Faye R. Rosenberg, Esquire Corporate Counsel Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner, Lyons Towing, Inc., is entitled to certification as a minority business enterprise.
Findings Of Fact Mrs. Bobbye Lyons, an American woman, presently owns 89 percent of the corporate stock of the Petitioner, Lyons Towing, Inc. Her husband, Mr. Don Lyons, owns the other 11 percent of the corporate stock of the Petitioner. The only directors of Lyons Towing, Inc., are Bobbye Lyons and her husband, Don Lyons. Mr. Don Lyons is also the vice-president of Lyons Towing, Inc. Mr. Don Lyons is not a "minority person" within the meaning of the definition of that term at Section 288.703(3), Florida Statutes. Mrs. Bobbye Lyons also presently owns 11 percent of the corporate stock of Lyons Autobody, Inc. Her husband, Don Lyons, owns the other 89 percent of the corporate stock of Lyons Autobody, Inc. The only directors of Lyons Autobody, Inc., are Bobbye Lyons and her husband, Don Jones. Mrs. Bobbye Lyons is also the vice-president of Lyons Autobody, Inc. Lyons Autobody, Inc., is not a "minority business enterprise" within the meaning of the definition of that term at Section 288.703(2), Florida Statutes. The Petitioner, Lyons Towing, Inc., shares space with Lyons Autobody, Inc. The Petitioner, Lyons Towing, Inc., leases most of its towing trucks from Lyons Autobody, Inc. Mr. Don Lyons is authorized to sign checks on the Petitioner's checking accounts. Mr. Don Lyons is the co-maker of at least two promissory notes and security agreements on behalf of the Petitioner, Lyons Towing, Inc. The two notes are in the amounts of $36,356.26 and $51,812.65. Mrs. Bobbye Lyons is authorized to sign checks on the checking accounts of Lyons Autobody, Inc. Mrs. Bobbye Lyons and Mr. Don Lyons jointly own at least one of the storage lots on which the Petitioner stores impounded vehicles. The Petitioner corporation, Lyons Towing, Inc., is engaged primarily in the business of towing motor vehicles. Lyons Autobody, Inc., is engaged primarily in the business of repairing wrecked or damaged motor vehicles. Prior to the incorporation of Lyons Towing, Inc., Lyons Autobody, Inc., also engaged in the business of towing motor vehicles. The business of towing motor vehicles and the business of repairing wrecked or damaged vehicles are businesses in associated fields of operation. Mrs. Bobbye Lyons has been married to Mr. Don Lyons since 1975. At the time of their marriage, Mr. Don Lyons was already engaged in business. Mr. Don Lyons and his father had started a business in 1964 that engaged in both repairing wrecked or damaged motor vehicles and in towing motor vehicles. In 1975, Mrs. Bobbye Lyons began to work in her husband's business and continued to do so until 1987. During that period of time Mrs. Bobbye Lyons worked primarily on the towing side of the business, but she also did a little bit of everything in the business, except drive tow trucks. In 1987, Mr. Don Lyons decided to split his business into two separate businesses; one business to be engaged primarily in the business of repairing wrecked and damaged motor vehicles and the other to be engaged primarily in the business of towing motor vehicles. At that time the Petitioner, Lyons Towing, Inc., was incorporated and Mrs. Bobbye Lyons was installed as President and "Chief Operations Officer" of the new corporation. Sometime thereafter, 89 percent of the stock of the Petitioner, Lyons Towing, Inc., was "given" to Mrs. Bobbye Lyons. Mrs. Bobbye Lyons did not make any capital contribution to Lyons Towing, Inc., and did not purchase her shares in that corporation. At least until March 16, 1996, both the Petitioner, Lyons Towing, Inc., and Lyons Autobody, Inc., had a single motor vehicle insurance policy under which all of the vehicles owned by both corporations were co-insured. Mrs. Bobbye Lyons is a high school graduate and a graduate of Clevinger's Business College. She has attended Palm Beach Junior College and has previously been certified as a sworn law enforcement officer. She has been involved in the towing business since 1975 and appears to have sufficient experience and knowledge regarding the towing business to be able to operate a business like Lyons Towing, Inc., without assistance from her husband. Mrs. Bobbye Lyons is a regular and active participant in the day-to- day operations of Lyons Towing, Inc. She is the person who is primarily responsible for the day-to-day operations of Lyons Towing, Inc., and she directly or indirectly supervises and directs all employees of Lyons Towing, Inc. She also supervises and directs the purchase of goods, equipment, business inventory, and services needed in the day-to-day operation of the business. Similarly, she supervises and directs the hiring, firing, and work assignments of all employees. She also establishes employment policies, wages, benefits, and other conditions of employment. She is assisted in this regard by Mr. Allan Gold, who has the title of General Manager of Lyons Towing, Inc. Mr. Gold is subordinate to Mrs. Bobbye Lyons and must receive her approval before he can hire or fire employees, enter into contracts, or purchase equipment. Mrs. Bobbye Lyons makes or participates in all of the major decisions regarding hiring and firing employees, payroll, business expenditures, purchase of equipment, and contract negotiations with customers. In this regard, Mrs. Bobbye Lyons exercises control over the business affairs of Lyons Towing, Inc., on a regular and continuing basis, but always subject to the influence of, and with the tacit approval of, her husband, Mr. Don Lyons. Because of his more extensive experience in the business, Mr. Don Lyons often participates in important business decisions affecting Lyons Towing, Inc., and spends several hours each week providing guidance and assistance in the management of Lyons Towing, Inc. Further, by reason of his status as one of only two board members on the board of directors of Lyons Towing, Inc., he can effectively veto any decision by Mrs. Bobbye Lyons regarding any corporate decision with which he disagrees. And by reason of his status as an officer of Lyons Towing, Inc., and his authority to sign checks on the Lyons Towing, Inc., checking account, he has the power and authority to intervene in the day-to-day operations of the Petitioner corporation.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case denying the certification sought by the Petitioner and dismissing the petition in this case. DONE AND ENTERED this 30th day of August, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. 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 30th day of August, 1996.
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
Findings Of Fact The DOT, as a state agency, is charged with developing a DBE program for contractors dealing with the Department. Burkett is a Florida corporation whose sole stockholder is a white female American. She meets the criteria of a socially and economically disadvantaged individual. Burkett applied for certification as a DBE on July 12, 1991, and was denied by the Department on October 1, 1991. Burkett submitted additional information and made changes to its internal organization to better conform to the Department's requirements; however, the Department has denied Burkett DBE status on the basis of the owner's alleged lack of expertise in the critical areas of the firm's operation, to wit; she does not possess education or training in engineering. The DOT interprets "critical areas of operation" to mean the technical area in which the DBE certification is being sought. Management limited to the day-to-day normal business operations is not considered to be a "critical area of operations." Evidence of expertise is dependent upon the nature of the business; however, the DOT expects to see education or experience on the part of the disadvantaged owner in the technical area of operations of the business. The DOT denied the Petitioner because the disadvantaged owner did not possess engineering experience or education. The disadvantaged owner is the widow of the founder of the business who died of a form of multiple sclerosis. As her husband lost the ability to direct the operations of the company, the owner assumed more and more responsibility for the day to day operations of the company. Professional engineers were hired to handle the technical aspects of the business; however, she clearly directed the hiring and firing of engineering staff. In this regard, her son and son-in- law, who are both trained engineers, came into the business. Her son-in-law left when the owner limited his participation in the business. Her son remains in the business as head of the engineering operation; however, she actively participates in the assessment of projects and preparation and presentation of bids. She is in overall control of the company, and, although she does not make direct assignments of tasks to engineers and draftsman, she does oversee their work. She has pointed out to her son draftsmen who are under utilized, and given directions to assign the men more work and terminate them. The owner does not have any formal engineering training or experience in technical engineering work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation deny the Petitioner's request for Disadvantaged Business Enterprise (DBE) status. DONE AND ENTERED this 17th day of November, 1992, in Tallahassee, Leon County, 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 17th day of November, 1992. Appendix A to Recommended Order 92-896 The parties submitted supplemental proposed findings which were read and considered. The following states which findings were adopted and which were rejected and why. Petitioner' Proposed Findings: Paragraph 1 True, but rejected in favor of discussion of son-in-law's leaving business. Paragraph 2 Irrelevant. Paragraph 3 True; but rejected in favor of Para 5 in RO. Respondent's Proposed Findings: Paragraph 1-3 Rejected as argument, and conclusions of law. Paragraph 4,5 Irrelevant. Paragraph 6 Irrelevant. The Department based its determination on the owner's lack of education and experience and not lack of participation. Paragraph 7 Irrelevant. She was afforded the opportunity to present her case at the hearing. COPIES FURNISHED: Theodore E. Mack, Esquire Cobb, Cole, and Bell 131 North Gadsden Street Tallahassee, FL 32301 Pamela S. Leslie, Esquire Pamela A. Arthur, Esquire Department of Transportation 605 Suwannee Street, MS # 58 Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
