The Issue Whether Mr. Wareh's business qualifies for certification as a disadvantaged business enterprise?
Findings Of Fact Mr. Wareh was born Mohammad Faiz Wareh in Damascus, Syria. He is now a citizen and permanent resident of the United States. Mr. Wareh is the president and majority owner of Wareh Construction Company, which is located in Jacksonville, Florida. Mr. Wareh owns 51% of the stock of Wareh Construction Company and his wife owns the remaining 49%. Wareh Construction Company is located in Jacksonville, Florida. From September 20, 1983 to September 20, 1984, Wareh Construction Company was certified by the Department as a minority business enterprise under Rule 14-78, Florida Administrative Code, as it existed at that time. Mr. Wareh was recognized as an Asian American for this classification. The certification of Wareh Construction Company as a minority business enterprise in September, 1983, was for 1 year. This certification expired in September, 1984, because Mr. Wareh did not reapply for certification in 1984. On or about May 28, 1987, Mr. Wareh mailed a Florida Department of Transportation D/WBE Certification and Recertification Schedule A to the Department seeking certification as a disadvantaged business enterprise. By letter dated June 16, 1987, the Department denied the application for certification as a disadvantaged business enterprise filed by Mr. Wareh. The Department based its denial upon its conclusion that the requirements of Rule 14-78.05(3)(b)1, Florida Administrative Code, had not been met. Mr. Wareh has not applied to the Small Business Administration for certification as a socially and disadvantaged individual.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Wareh Construction Company for certification by the Department as a disadvantaged business enterprise be denied. DONE and ENTERED this 4th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 4th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2878 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2. Hereby accepted. 3 4. 5 and 6. 7 and 8. Primarily conclusions of law. To the extent that facts are included in this proposed paragraph, they are hereby accepted. Conclusion of Law. 8-9 Irrelevant. 10 9. Irrelevant. Conclusion of law. COPIES FURNISHED: Fred Wares Wareh Construction Company 6048 Chester Circle Jacksonville, Florida 32217 Judy Rice Senior Attorney Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner, M.D. 58 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458
Findings Of Fact Introduction On March 31, 1983, Respondent, Department of Transportation (Department), gave notice to qualified contractors that it would receive sealed bids on the following project: BROWARD COUNTY: FEDERAL AID PROJECT NO. I-iD-75-4(38)225 (JOB NO. 86075-3417), SR-93, (I-75), from S. of Nova Dr. to S. of S.W. 13th St.. Work consists of Extra Heavy Embankment; Pav't. of Alt. 10" Limerock Base or 9", 7" or 6" Asph. Base Cse. (Type 1, 2 or 3) and Section of Alt. 8" Limerock Base of 7 1/2", 6" or 5" Asph. Base Cse. (Type 1, 2 or 3) all with Type S Structural Cse. and Asph. Conc. Fri-tion Cse. (FC-2), Shoulder Pav't.; Two Bridges (OAL 821') of Conc. Slab Deck and Prestr. Conc. Beams on Conc. Piers and Spread Footings; Conc. Handrail (Barrier and Sidewalk); Conc. Box Culverts; Storm Sewer and Small Drainage Structures; Conc. Curb and Gutter and Shoulder Gutter; Staked Silt Barrier; Guardrail (Rdwy.); Fencing; Roadway Signs; Pav't. Markings (Rer. Pav't. Markers and Thermoplastic Striping); and Incidental Items. Length 1.914 miles. (B. I. 440803) cost $20.00 FEMALE GOAL 1 percent M.B.E. GOAL 5 percent TOTAL M.B.E. GOALS 6 percent NOTE: ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT. (Approx. 550 Cal. Days) The project is also known as the "Nova Drive Project". Such bids were to be received by the Department no later than April 27, 1983. Seven construction firms submitted bids on the project. As is pertinent here these included petitioner, Badgett Resources, Inc. (Badgett), a firm located in Fort Lauderdale, Florida, and respondent, Capeletti Brothers, Inc. (Capeletti), a firm with principal offices located in Miami, Florida. Capeletti submitted a bid for $6,917,515.50, which was the lowest bid on the project Badgett's bid was for $6,922,625.50, or $5,110.00 higher than the Capeletti bid, and was the next lowest bid. On April 27, 1983 the Department opened the sealed bids. Because certain information was not furnished with Capeletti's bid, Capeletti made another submittal on May 9, 1983. After reviewing this information, and having further communications with Capeletti, the Department finally concluded on May 17, 1983, that Capeletti met all applicable requirements. Thereafter, on May 20, 1983 the Department posted the bids and designated Capeletti as the lowest responsive bidder. On May 23, 1983 Badgett filed its notice of protest in which it requested a formal hearing prior to the award of the contract to Capeletti. That same day the Department notified Badgett that because it believed the failure to proceed with the award of the contract "would result in an immediate and serious danger to the public health, safety and welfare", it intended to immediately award the contract to Capeletti pursuant to Subsection 120.53(5)(c), Florida Statutes. It did so since the project was federally funded with Discretionary Interstate Lapse Funds, and if work did not commence prior to June 27, 1983, the State would suffer the loss of those funds. Capeletti began construction on the project prior to June 27 and has actively continued such work since that time. Bid Specifications According to the notice requesting bids, all work related to the project had to comply with the "Plans, Specifications and Special Provisions of the State of Florida Department of Transportation." These bidding requirements are more commonly known as the Bid Specifications. As is pertinent here, the Bid Specifications included a requirement that each bidder comply with the Minority Business Enterprises (MBE) requirements developed by the Department. The Department has a policy that firms owned and controlled by minorities or women shall be given the maximum opportunity to participate in the performance of contracts let by the Department. In this vein it has established overall minority goals in Rule 14-78.03, Florida Administrative Code, for its MBE program. These include contract goals for minority business enterprises (firms owned and controlled by minorities) and contract goals for women business enterprises (firms owned and controlled by women), both of which applied to the project in question. The MBE goals for the Nova drive Project were 5 percent for minority business enterprises and 1 percent for women business enterprises. This meant that 5 percent and 1 percent of the estimated total dollar value of the contract should have been performed by certified minority and women controlled enterprises respectively. However, Rule 14-78.03(1)(c)2. provides that if the successful bidder cannot meet the 5 percent and 1 percent goals, it "must satisfy the Department that the contractor has made good faith efforts to meet the goals." In this regard, the Rule requires that the bidder "actively and aggressively" attempt to comply with the goals, and sets forth nine relevant factors or types of effort that may be considered in determining whether a good faith effort has been made. (Rule 14-78.03(1)(c)2.a.i.-ix). The Rule cautions that "pro forma" good faith efforts are unacceptable. Department rules and the Bid Specifications made it quite clear that in order to be eligible to participate as MBE's the Department must first certify the firm. The specific requirements for certification are set forth in Rule 14- 78.05, Florida Administrative Code. A failure to comply with these requirements can result in the denial of a bid award. The Bid Specifications provided the following requirement pertaining to the submission of information showing compliance with the MBE goals: The Florida Department of Transportation prefers the Minority Business Enterprises Form I to accompany the bid documents. If this is not possible, the form must be received by the Florida Department of Transportation's Office of Minority Programs, attention MBE Liaison Officer, no later than ten (10) calendar days after the bid opening date. (Emphasis added) The term "calendar day" is defined in the Bid Specifications as "every day shown on the calendar, ending and beginning at Midnight". Since the bid opening date was April 27, 1983, a strict interpretation of this standard required that the MBE submissions by the bidders to be filed with and received by the Department's Office of Minority Programs no later than Saturday, May 7, 1983. This is confirmed by a memorandum prepared by the Secretary of the Department on June 4, 1982 which was sent to all prequalified contractors and clarified the requirements relative to MBE's. There he stated that "(i)t must be remembered that all the above information (including MBE Utilization Form No. 1) is to be in the Department's hands within ten (10) days following the bid opening as opposed, for example, to simply being mailed within the ten-day-period." However, it-has been an informal Department policy for many years to require a document to be filed on the next following Monday when the original deadline falls on a Saturday or Sunday. The Minority Business Enterprises Certification Form No.1 to be submitted in conjunction with the bid, or ten days thereafter, is a two-page Department prescribed form that identifies each minority subcontractor to be used on the project by the contractor, the class of work, dollar amount of work, percent of contract, sex, type of minority, and whether the subcontractor has been certified by the Department as an MBE. The Bid Specifications provide not only that "(t)he MBE Utilization Form No.1. . .only include firms which are certified by the Department", but also that they be ". . .certified prior to the submission of the. . .Form". (Emphasis added). MBE Submissions by the parties Badgett submitted its MBE Utilization Form No.1 with its bid on April That form reflected that Community Asphalt, Post Office Box 9179, Pembroke Pines, Florida, would perform the paving portion of the project at a cost of $1,022,853.97, or 15 percent of the total contract. Community is Hispanic owned and controlled, and was represented on the form as being certified by the Department. A female controlled firm identified as Triple J, Post Office Box 6321, Fort Myers, Florida, was listed as the grassing subcontractor, which represented 2 percent of the total contract. These percentages exceeded the 5 percent and 1 percent goals established by the Department. Badgett did not utilize the lowest bid it received for grass work since that was submitted by a non-MBE firm. Had it done so, its bid on the project would have been $7,111.63 lower, or approximately $2,000 less than the overall bid submitted by Capeletti. Capeletti did not submit an MBE Utilization Form No. 1 or its MBE "good faith efforts" submittal with its sealed bid. Neither did it make such submissions by the tenth calendar day, or May 7, 1983. On the following Monday, May 9, Capeletti filed an incomplete MBE Utilization Form No. 1 and a "good faith efforts" submittal. Form No. 1 reflected that Pro Contracting, Inc., 15111 Falkirk Place, Miami Springs, Florida, a Hispanic owned and controlled firm, would perform 5.04 percent of the total contract work. In answer to the question of whether the firm has been certified by the Department, Capeletti answered that such certification had been "applied for". Capeletti also listed three female owned and controlled firms, Len Hazen Painters, Inc., Advance Barricades and Signing, Inc., and C & G Specialties, Inc., as being subcontracted to perform 1 percent of the total contract price. The first two firms were shown as being certified by the Department while Capeletti indicated that, like Pro Contracting, certification for C & G Specialties had been "applied for". The percentage levels (5.04 percent and 1 percent) met the Department established goals. Although Capeletti indicated on its Form No. 1 that MBE certifications had been "applied for", this was incorrect. Neither Pro Contracting or C & G Specialties had in fact filed such an application on that date. Further, C & G Specialties had not applied for certification as of the time of the final hearing in mid-August. Both firms were also conspicuously omitted from the directories published by the Department which listed all MBE firms qualified to participate in Department contracts. On May 10, 1983, the Department Minority Programs Coordinator reviewed the Capeletti filing and found it to be deficient. He then telephoned Capeletti's MBE liaison officer, R. S. Stoddard, and informed him of "possible noncompliance" because of the non-certification of the two firms listed on the Form. He also advised Stoddard that Capeletti would have to submit other "qualified" MBE or WBE firms or provide the Department with evidence of its good faith efforts to meet the contract goals. The next day, May 12, the president of Pro Contracting flew to Tallahassee with an application for certification. Why he waited until after the deadline to seek certification was not disclosed. In any event, by 5:30 p.m. that day, it had been given a "temporary" certification good for ninety days, or until August 12, 1983, subject to a follow-up on-site evaluation of the firm by the Department. The temporary certification was given despite the application being incomplete in several respects and there being an admonition on the form itself that "INCOMPLETE FORMS WILL BE RETURNED." The less than twenty-four hour turnaround time for reviewing the application was by far the quickest time such an application had ever been processed, and a firm issued an MBE certification. In the past, such certifications had taken weeks or months since the Department has up to ninety days to review such applications pursuant to its rules. However, the Coordinator explained that "time was a factor", and justified the expedited approval on this basis. The temporary certificate expired on August 12 without being renewed, but the Coordinator stated it would be changed to a permanent certification on August 22, 1983. There are no Department rules which provide for "temporary" certification. However, the evidence reveals that this type of certificate had been issued to other subcontractors in the past, including Community Asphalt, which was used by Badgett. Because the 1 percent WBE goal was not met, it was necessary that Capeletti satisfy the Department it had made good faith efforts to meet the unmet goals. A "Good Faith Efforts" form specifying the information required to meet this test was sent by the Department on April 28, 1983. The form contained nine questions pertaining to the contractor's effort to meet the contract goal and tracked the criteria enumerated in the Rule. Although the form itself was not returned, Capeletti responded by letter dated May 6 and stated that it had mailed a letter to 85 WBEs and 10 MBEs on April 12 1983 soliciting quotes, and mailed the same letter to various WBE and MBE associations in the State of Florida. It also submitted a list of MBE/WBE firms that had subcontracted on Capeletti jobs in recent years. The reply by Capeletti essentially satisfied four of the nine suggested criteria in Rule 14-78.03(1)(c)2.a.i.-ix. It did not respond to the other five factors. Notwithstanding the failure of Capeletti to fully respond to all of the requested information, the Department recommended that 72 percent of the 1 percent WBE goal be waived since Capeletti had made a good faith effort to meet that goal. In so doing, the Department relied solely upon Capeletti's letter of May 6 as a basis for that determination. This recommendation was concurred in by a representative of the Federal Highway Administration on May 16. This was necessary since federal funds were being used on the project. On May 17, 1983, the Department determined that Capeletti had complied with the Department MBE requirements. This determination was based on the utilization of Pro Contracting to meet the entire 5 percent MBE goal, and the Federal Highway Administration's waiver of 72 percent of the 1 percent WBE goal of the project. On May 20 the Department posted the bids and designated Capeletti as the lowest responsive bidder for the project. The Status of Community Asphalt Respondents have raised the issue of whether Community Asphalt was a certified MBE at the time the bids were submitted on April 27. That subcontractor was used by Badgett to meet the 5 percent MBE goal. Community Asphalt was incorporated on September 22, 1980. Fifty-one percent of the stock is held by two Hispanics while the remaining 49 percent is held by non-Hispanic shareholders, one of whom owns Badgett. The purpose of the business was to qualify as a minority business enterprise for paving work on construction projects. The corporation is structured so that the Hispanic shareholders have ultimate control of the business and can elect the majority of the board of directors. Although Capeletti contended that the 49 percent block of stock can control the corporation's operations, or prevent it from bidding on jobs, sufficient provisions are available in the by-laws, articles of incorporation and statutes to allow effective Hispanic control. Community Asphalt was first certified on a temporary basis by the Department as a minority business enterprise for a 3-month period beginning October 28, 1981. A renewal application for continued certification was filed with the Department around January 7, 1982. That application was never acted upon by the Department despite numerous written and oral inquiries by the applicant and its attorneys over an extended period of time. The lack of action was caused in part by a shortage of personnel in the Department MBE office. Community was orally advised in June, 1982 by a Department MBE representative that its application had been approved and it would be placed on the approved list of MBE subcontractors for participation in Department contracts. Community relied upon this representation and did not pursue the matter further. Thereafter, Community's name appeared in the Department MBE directory provided to contractors for Department projects, including the updated directory used for the April, 1983 letting of projects. Most recently, it was again included in the June, 1983 directory. Badgett relied upon these directories to comply with the MBE goals. Although the Department "routinely" advises MBE contractors in writing whenever their certifications have expired, the Department did not do so in Community's case at the end of its 90-day certification on January 28, 1982, or at any time thereafter. The Department attributed this to an oversight and shortage of personnel. In March, 1983 Badgett submitted a bid on the I-75 and SR 84 Department project in Broward County. On that particular job it had also received a bid quote from Community Asphalt. The Department awarded the contract to Badgett and authorized Community Asphalt to be used to meet the MBE contract goals. It is now performing the contract. Further, Community consistently submitted bids from January, 1982 until the Nova Drive project without any question being raised by the Department and participated in numerous Department jobs over that period of time. Department Practice on MBE Submissions and Waiver of Irregularities The Department views the MBE program as being an opportunity for minority and female owned companies to participate in the road and bridge construction program. According to its Coordinator, the policy in the past has been to "stretch" the rules if necessary to afford MBEs such an opportunity. The MBE Coordinator could not recall ever rejecting a contract for noncompliance by a bidder with the MBE good faith requirements. In situations where a contractor has not submitted its good faith efforts in conjunction with its bid, the Coordinator has allowed contractors to supply such information after the tenth calendar day and even up to twenty-five days thereafter where "continuous communication" occurs, and the contractor is attempting to fulfill the requirements. The Department internally created an awards committee some fourteen years ago which reviews all bids whenever irregularities, discrepancies or unbalancing of bid items occur on a particular job. In determining how to resolve such problems, the committee's primary concerns are to protect the integrity of the competitive bid system and do whatever is in the best interest of the State. The committee did not get involved in the Nova Drive Project, but the director of the division of construction, who sits on the committee, considered the tardiness of Capeletti in complying with the MBE requirements to be a "minor deficiency" and a "waiverable irregularity". He described "major" deficiencies as being a failure to submit a bid bond or not signing the bond, either of which would warrant rejecting an apparent low bidder. Section 3-1 of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction (1982 edition) provides in part as follows: Until the actual award of the contract, however, the right will be reserved to reject any and all proposals and to waive technical errors as may be deemed best for the interest of the State. (Emphasis added) Effects of Cancelling the Contract As noted earlier Capeletti has been performing under the contract since the latter part of June, 1983. Should the contract be cancelled, Capeletti estimates its reimbursable costs from the State to range from $500,000 to $1,000,000. This amount represents expenditures already made for such things as earth-work, drainage structures and pilings and beams ordered or already made. This amount was not considered to be unrealistic by a Department representative. The contract specifications call for the contract to be completed in approximately 550 calendar days. If the work is done at an even pace, around 20 percent of the job will have been completed at the time this recommended order is issued. However, from a construction standpoint, performance of the contract can be terminated at any time and the construction completed by another contractor.
Recommendation Based on foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a final order immediately terminating the contract awarded to Capeletti Brothers, Inc. on the Nova Drive Project, and that the remaining portion of the work under that project be relet for bids. DONE and ENTERED this 10th day of October, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 10th day of October, 1983.
Findings Of Fact Vause is in partnership with his brother and has a principal office at 100 Hamilton Avenue, Panama City, Florida. Vause's business has two full-time employees and has a net worth of less than $100,000.00. In DOAH Case No. 88-5988, Vause applied for a special activity license to use mechanical harvesting devices on his oyster leases. DNR denied the application by "Final Order" dated October 17, 1988, and this "Final Order" provided the clear point of entry. Vause availed himself of this point of entry and requested a formal hearing. After a formal hearing, a Recommended Order was entered on March 13, 1989, wherein it was concluded that the application was valid and adequate and that Vause had met all conditions precedent to be entitled to the permit sought. DNR had denied the permit based on legally insufficient and incorrect grounds and authority. Vause has incurred attorney's fees at the rate of $125.00 per hour. A total of 19.20 hours were expended by Vause's attorney in the underlying proceeding and in this proceeding. The number of hours is reasonable and they were necessary. The hourly rate is reasonable. Hence, Vause has incurred $2400.00 in fees.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Samuel J. Marshall, was born on November 19, 1936. In March 1986 he began employment as a truck driver hauling sand for Taylor Concrete and Supply, Inc. (Taylor) at its Palatka, Florida plant. When he began his employment with Taylor, Marshall advised his supervisor that because of his religious beliefs, he could not work on Saturdays. The name of the religion is not of record. Marshall says that after giving such notification to his employer, he was never required to work on Saturdays during his tenure with Taylor. This was not contradicted. In 1989, Taylor sold the plant to respondent, Tarmac Florida, Inc. (Tarmac). As an employer with more than fifteen full-time employees, Tarmac is subject to the regulatory jurisdiction of the Florida Commission on Human Relations (Commission). Shortly after the sale, petitioner was advised that his position as a sand truck driver was being eliminated but he could transfer to a position as a ready-mix driver in the ready-mix division at the same plant. Petitioner accepted this offer effective November 28, 1989. Because the new position required the driver to work every other Saturday, petitioner advised the new plant manager, Byron White, that he could not work on Saturdays because of his religious beliefs. After Marshall produced evidence to verify his claim, White excused Marshall from working on Saturdays. Tarmac employee timecards confirm that Marshall was never required to work on a Saturday. Petitioner was required to undergo a brief period of training by riding for several weeks with a senior driver, James Bolt. During petitioner's training period, Bolt was engaged in the illicit practice of selling any concrete left in his truck at the end of the day to third parties and then pocketing the money. This was obviously contrary to company policy. Petitioner was aware of this activity but said nothing. On occasion, Bolt would give petitioner some of the illicit proceeds, which he accepted. In the first week of February 1990, or after he had completed his training with Bolt, petitioner went to White and told him that there was "illicit" activity being conducted at the plant, but he refused to disclose the nature of the activity or the name of the individual engaged in that enterprise. He also failed to tell White that Bolt had given him money. White communicated this conversation to the regional manager, Jack Stegall, but because they had no specific information on which to proceed, they were unable to investigate the allegations. Tarmac has a number of plants within each division. It is not uncommon for drivers to be transferred from one location to another, based on the varying demands of the different plants. In June 1990 Stegall decided to transfer two drivers from the Palatka plant to the Green Cove Springs plant due to increased business at the latter facility. Petitioner and another driver, Dennis Folmer, then approximately thirty years of age, were selected for transfer since they had the least seniority in the Palatka ready-mix division. After learning of Stegall's decision, petitioner contacted Stegall and advised him that he believed the company policy required that transfer decisions be made based on seniority with the company, rather than seniority in a particular position. Stegall then checked with the human resources department and learned petitioner was correct. Petitioner's name was thereafter removed from the transfer list and James Bolt, who had less seniority than petitioner, was placed on the list. During his meeting with Stegall, petitioner informed him about the illegal concrete sales that had occurred during his training period. After petitioner was told to inform White about this matter, he took White to the locations where he was with Bolt when the concrete was illegally sold. He also turned over to White the $30 he had received from Bolt. Based on Marshall's revelation, on June 25, 1990, Bolt was terminated as an employee for the unauthorized sale of concrete. Because he had come forward and disclosed the illegal activity, petitioner was only given a one-week suspension without pay. Petitioner did not question nor challenge the suspension and admitted to White that he was involved in the sales. Also, on July 11, 1990, he was given a warning notice prepared by White and which read in part as follows: Sam confessed to selling unauthorized concrete on three separate occasions. Sam also reported others involved. For this reason only Sam was given one week off. If for any reason this happens again or attempt (sic) to, Sam will be terminated. Although petitioner was handed a copy of the notice, he refused to sign it, threw it back at White and walked away. At the same time petitioner notified Stegall of the illegal concrete sales, he also asked Stegall about the possibility of transferring to Tarmac's Deland facility, which was closer to his home. Stegall indicated he would try to assist petitioner with a transfer, if possible. The next day, petitioner drive to the Deland facility and spoke with the Deland plant manager who indicated there was a ready-mix driving position available. The plant manager also agreed to contact White on petitioner's behalf. Even so, because the Palatka facility was short two drivers due to the transfer of Bolt and Folmer to Green Cove Springs, White could not afford to allow petitioner to transfer to Deland. He did promise petitioner that he would arrange for a transfer as soon as an opportunity arose which would not adversely impact the Palatka facility. After petitioner's suspension for his participation in the illegal sale of concrete, Tarmac received complaints from other Tarmac employees regarding petitioner. Believing this conduct to be detrimental to the integrity of the company and a disruption of the harmony of the work unit, Minor Turrentine, then the Tarmac area production manager, advised petitioner that if he continued to talk about the illegal sale of concrete with other drivers and customers, he would be terminated for breaching company policy, that is, disclosing confidential information that was contrary to the company's best interests. He was also given a written warning on July 16, 1990, which read as follows: You were recently suspended for your admitted involvement in certain activities that are against company policy. It has been reported that you have openly discussed these matters with employees at various locations. Be advised that any further discussion concerning your suspension and the circum- stances surrounding it will be considered breach of confidentiality, which is a violation of company policy. Any further violation of company policy will subject you to severe disciplinary action, up to and including discharge. After White received further complaints regarding petitioner, Tarmac terminated petitioner's employment effective August 21, 1990, for breaching company policy. The separation notice, which was dated the same date, gave the following reason for his termination: Employee was formally warned on July 16 to discuss no further his recent suspension. Discharged for further discussion on or about 8/20/90. There is no evidence as to whether petitioner was replaced by another driver, and if so, the age of that driver. When terminating petitioner, Tarmac did not do so because of petitioner's age or religious beliefs. Indeed, Marshall conceded at hearing that he had no direct proof of discrimination but merely believed he was improperly terminated for those reasons. As evidence of age discrimination, petitioner speculated that Tarmac may have been attempting to lower its insurance rates by removing an older person from its payroll, a belief based solely on a conversation he had with an insurance agent a few weeks prior to hearing. However, at least three other ready mix drivers at the Palatka plant are older than Marshall. He also speculated that because he was not required to work on Saturdays, this caused ill-will among his co-workers, and Tarmac terminated him for his religious beliefs. Again, there was no proof, either circumstantial or direct, to support this assertion. Regarding the claim that Tarmac's decision to transfer petitioner to Green Cove Springs in June 1990 was in retaliation for him telling White that working Saturdays was against his religion, the evidence shows that petitioner was removed from the transfer list once his seniority was brought to the company's attention. Petitioner also suggests that he was denied a transfer to the Deland facility in June 1990 as retaliation for his religious beliefs. However, the evidence shows that it was not feasible for Tarmac to transfer him at that time due to a shortage of drivers but Tarmac promised that an effort would be made to comply with his request when it was feasible. Petitioner did not state whether he desires reinstatement to his former position. In his petition for relief, petitioner did request "70 percent of (his) average yearly base pay since August 20 on". However, petitioner's salary at the time of discharge is not of record. Further, there was no evidence presented to establish his salary nor the monetary losses, if any, petitioner has suffered by virtue of his termination. He is currently employed with another company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the petition for relief. DONE AND ORDERED this 29th day of April, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5927 Respondent: Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 2. 6. Partially accepted in finding of fact 4. 7-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 6. 10-11. Partially accepted in finding of fact 7. 12-13. Partially accepted in finding of fact 8. 14-15. Partially accepted in finding of fact 9. 16-17. Partially accepted in finding of fact 10. 18. Partially accepted in finding of fact 11. 19. Partially accepted in finding of fact 2. 20-23. Partially accepted in finding of fact 11. 24. Rejected as being unnecessary. Note - Where a finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, a conclusion of law, or not supported by the evidence. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Samuel J. Marshall S. R. Box 1075 Georgetown, Florida 32139 Grant D. Petersen, Esquire Donna M. Griffin, Esquire 1408 North Westshore Boulevard Suite 1000 Tampa, Florida 33607
The Issue Whether Respondent John A. Neilson is guilty of misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction, in violation of Subsection 475.25(1)(b), Florida Statutes. Whether Respondent John A. Neilson is guilty of failure to account or deliver funds, in violation of Section 475.25(1)(d)1, Florida Statutes. Whether John A. Neilson is guilty of failure to maintain trust funds in the real estate brokerage escrow account or some other proper depository until disbursement thereof was properly authorized, in violation of Section 475.25(1)(k), Florida Statutes. Whether Respondent John A. Neilson is guilty of failure to notify the Petitioner of an escrow deposit dispute or good faith doubt as required by Florida Administrative Code Rule 61J2-10.032, and therefore in violation of Section 475.25(1)(e), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate broker having been issued license number 0342188 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker-salesperson, percentHenry Gauthier, Jr. t/a/ Brevard Business Brokers, 1325 N. Atlantic Avenue, Cocoa Beach, Florida 32931. Between January 21, 1992 and April 9, 1993, Respondent John A. Neilson was the qualifying broker of Cocoa Beach Realty. Henry L. Gauthier became Respondent Neilson's employing broker about April 9, 1993. On February 6, 1993, Respondent Neilson solicited and obtained a contract between seller Ila M. Martin and buyers Charles F. and Belle L. Mosser for the purchase of the house at 465 Skylark Boulevard in Satellite Beach, Florida. According to the contract the buyers entrusted Respondent Neilson with a $3,000.00 earnest money deposit. The transaction was scheduled to close on April 7, 1993. A few days prior to closing the buyers discovered that there was a cluster of amyotrophic lateral sclerosis (ALS) cases in the area of the home as evidenced by newspaper articles. At no time material did Respondent Neilson disclose the cluster problem in the area to Mosser. The buyers told Respondent Neilson that they would not close because of the ALS cluster in the area. They also advised they were not ready to close for other reasons. On April 8, 1993, Respondent Neilson closed his brokerage and disbursed the $3,000.00 to Mr. Gauthier without the consent of the buyers. Respondent Neilson then became a broker salesperson with Mr. Gauthier as qualifying broker. On April 8, 1993, Gauthier disbursed the deposit, half to the seller and half to Respondent Neilson, without the knowledge or consent of the buyers, and without a written release. By letter dated April 17, 1993, the buyers made a demand upon Gauthier for the return of their deposit. At no time did the Respondents deliver the deposit to the buyers or notify the Petitioner of conflicting demands or good faith doubts about the disbursal of funds.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent John A. Neilson be found guilty of having violated Sections 475.25(1)(d)1,(1)(k), and (1)(e), Florida Statutes as charged in the Administrative Complaint. It is further RECOMMENDED that Respondent John A. Neilson be found not guilty of having violated Section 475.25(1)(b), Florida Statutes. RECOMMENDED that Respondent John A. Neilson be reprimanded and fined $1,500.00. DONE and ENTERED this 14th day of August, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 14th day of August, 1995. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.57(1)(b)9., Florida Statutes. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1-15. Proposed findings of fact submitted by Respondent. None COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 John A. Neilson Brevard Business Brokers 1325 N. Atlantic Avenue Cocoa Beach, Florida 32931 Henry L. Gauthier, Jr. Brevard Business Brokers 1325 N. Atlantic Avenue Cocoa Beach, Florida 32931 Darlene F. Keller Division Director 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-0792
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1/ by discriminating against Petitioner based on her age, race, and/or national origin.
Findings Of Fact The Department is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner's race is black and her nation of origin is Jamaica. She was born on January 12, 1933. Petitioner completed a State of Florida employment application on August 7, 2002, for the position of Human Services Worker II at the Department's Gulf Coast Center in Fort Myers. The state employment application does not require an applicant to list her age or date of birth. All applicants for the Human Services Worker II position were required to sign a "willingness survey" indicating the applicant's willingness to work beyond the hours of a normal shift and/or willingness to work on an assigned day off, if such was required, in order for the facility to meet its minimum staffing requirements. Petitioner read and signed the willingness survey. The Department hired Petitioner for the Human Services Worker II position on September 13, 2002. Her letter of appointment informed Petitioner that she was required to complete a 12-month probationary period before attaining permanent status. Petitioner is a certified nursing assistant ("CNA"), and the job for which she was hired involved the provision of direct care, supervision, and assistance to residents of the Gulf Coast Center. Gulf Coast Center is a 24-hour licensed intermediate care facility for the developmentally disabled, primarily the mentally retarded. Gulf Coast Center's license requires that a minimum number of direct care staff be present and on duty 24 hours per-day, every day of the year, for each residential unit. See 42 C.F.R. § 483.430(d)(3). Petitioner was assigned to the second shift (2:30 p.m. to 11:00 p.m.), with Mondays and Tuesdays as her days off. She worked in the Madison Cottage, which houses 16 profoundly retarded adult females exhibiting a variety of extreme behaviors, including self-injury and aggression towards facility staff. The third shift in Madison Cottage began at 10:45 p.m. and ended at 6:45 a.m. The minimum staff required for the second shift was six persons. The minimum staff required for the third shift was three persons. To ensure that the minimum staff requirements were met, Gulf Coast Center promulgated a "holdover policy," which was in effect at the time Petitioner was hired and throughout her employment. The policy provided that staff persons on one shift could not leave the facility until the next shift met the minimum staffing requirement. In practice, the holdover policy was most commonly invoked when an employee from an incoming shift called in sick. The supervisor of the outgoing shift would first invoke the "pull policy," contacting other cottages in Gulf Coast Center to ascertain whether they could pull an employee from their incoming shifts to fill the slot of the absent employee. If no one was available from another unit, the supervisor would then seek a volunteer from her own cottage to work the incoming shift. If no one volunteered, the supervisor was then required to "hold over" an employee from the current shift. Having signed the "willingness survey," this employee was required to work the extra shift, later receiving compensatory leave to ensure that she did not work more than 40 hours in a given week. Employees were given the opportunity to choose which day of the week they would be available for holdover. If the employee failed to choose a day, then her supervisor would assign a day. Petitioner failed to choose a day and was assigned Wednesday as her holdover day. Prior to May 21, 2003, Petitioner had worked at least one holdover shift without incident. On Wednesday, May 21, 2003, Laurie Whidden was the acting supervisor of Madison Cottage for the second shift. She was informed that a third-shift employee had called in sick. Ms. Whidden attempted to pull an employee from another cottage to cover the shortage, but no one was available. She asked for volunteers to work the third shift, but received no response. Ms. Whidden then informed Petitioner that she would be required to hold over and work the third shift. Petitioner responded that she could not work the third shift, because she could not leave her sick husband at home alone for 16 hours. Petitioner's husband suffered from heart disease, and at that time, his condition was precarious. Petitioner testified that she frequently had to take her husband to the emergency room. However, Petitioner gave Gulf Coast Center no prior notice that she could no longer work a holdover shift, nor did she make any arrangements for the care of her husband on Wednesday, which she knew was her potential holdover day. On May 21, 2003, Petitioner made no effort to ask a fellow second-shift employee to cover for her that night. Petitioner simply went home at the end of the second shift. There was some dispute as to whether Petitioner answered, "Hell, no," when Ms. Whidden asked her to hold over for the third shift. The weight of the evidence supports Petitioner's assertion that her statement was directed at another employee's remark that Petitioner could sue the state if she came home after working the third shift and found her husband dead on the floor. Petitioner was indicating to the other employee that she wanted her husband alive, not money from the state. Petitioner and Beverly Morgan, another second-shift employee, testified that another employee was sent over from another cottage to work the third shift on May 21, 2003, meaning that Petitioner's refusal to stay had no real impact on the staffing of Madison Cottage. Ms. Whidden testified that no one came from another cottage to cover the shortage and that Ms. Whidden herself stayed to work the third shift. Ms. Whidden's testimony is credited on this point. Ms. Whidden informed Colette Fritts, the residential services supervisor of Madison Cottage, that Petitioner refused to hold over for the third shift on May 21, 2003. Ms. Fritts forwarded the report to Gulf Coast Center's human resources division with a recommendation for disciplinary action against Petitioner. The superintendent of Gulf Coast Center terminated Petitioner's employment. Petitioner produced no credible evidence that her age was a factor in the decision to terminate her employment. Ms. Morgan claimed that one night she overheard Ms. Whidden and Leoncia Trevino, another Human Services Worker II in Madison Cottage, discussing Petitioner's age, saying that if she was too old to hold over, she should quit. Given that Petitioner only once refused to hold over, on the night of May 21, 2003, this testimony is not credible. Further, the evidence established that in March and June 2003, probationary employees in their twenties were terminated for refusing to hold over at the end of their shifts. Petitioner produced no credible evidence that her national origin played a role in the decision to terminate her employment. Petitioner, Ms. Morgan, and Carmel Henry, another Madison Cottage employee, all testified that Ms. Whidden, the acting supervisor, wanted to "get rid" of the Jamaican employees in Madison Cottage before the regular supervisor, Monica Franks, herself a Jamaican, returned from sick leave. However, none of them could point to any action by Ms. Whidden to put such a plan into effect or even any statement by Ms. Whidden that would indicate an animus toward Jamaicans. Ms. Whidden testified that at the time of the events at issue, she knew Petitioner was from an island, but didn't know which one. The source of the rumors regarding Ms. Whidden's intention to get rid of the Jamaicans appears to have been Leoncia Trevino. The other workers in Madison Cottage believed that Ms. Trevino had the ear of management. Ms. Whidden credibly testified that she had no special friendship with Ms. Trevino, who was moved out of Madison Cottage on June 24, 2003, after a confrontation with Ms. Henry, and then resigned her employment at Gulf Coast Center the next day. Petitioner produced no evidence that her race played any part in the decision to terminate her employment. Petitioner was still a probationary employee at the time of her dismissal, meaning that she could be dismissed "at will." See Fla. Admin. Code R. 60L-36.005(3). At the time of her hiring, Petitioner received a copy of the Department's Employee Handbook, which informed her that she could be dismissed at will as a probationary employee. Petitioner was aware of the holdover policy and consented to abide by that policy at the time of her employment. On May 21, 2003, Petitioner refused the lawful order of her duly-delegated supervisor to hold over. This refusal constituted insubordination, which would provide cause for dismissal even for a permanent career service employee. See Fla. Admin. Code R. 60L-36.005(3)(d). The evidence produced at hearing demonstrated that the sole reason for Petitioner's termination was her direct refusal to follow the lawful order of her supervisor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Children and Family Services did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 12th day of May, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2005.
Findings Of Fact The Petitioner is a Florida corporation, which is a wholly owned subsidiary of United States Industries, Inc. Center Sand Company and Eustis Sand Sales are divisions of the Petitioner. They are not separately incorporated. Petitioner is in the business of mining and hauling sand. It leases and operates the Center Sand Mine. It makes profits from the sales of sand, and by serving as a broker for individuals who contract with the Petitioner to transport the sand. The Petitioner has one sales tax number. The Petitioner maintains a single price list for its sand. The price list does not include the cost of hauling the sand. Some purchasers send their own trucks to the Petitioner's mine to pick up the sand. Other purchasers transport the sand by common carrier. Approximately seventy-five to eighty percent of the sand is hauled by "lease operators" or "contract carriers". These operators own their own trucks, and contract with the Petitioner to exclusively haul Petitioner's sand. The Petitioner handles payroll, insurance and taxes far the lease operators, and maintains a lease payroll which is based on the tonnage of sand hauled by the lease operator. The Petitioner collects a brokerage commission from the lease operators which ranges from twelve and a half to twenty-seven percent, depending upon whether the operator owns his or her own trailer, or uses one of the Petitioner's trailers. In transactions in which a purchaser utilizes its own carriers, or common carriers, the Petitioner submits a single invoice to the purchaser which reflects the price of the sand. In cases in which the Petitioner's lease operators do the hauling, the Petitioner submits two invoices to the purchaser. One invoice reflects the price of the sand. The other reflects the freight charges of the contract operator. Some purchasers satisfy the two invoices with a single check, others issue two checks. Whether one or two checks are submitted, the Petitioner maintains separate receipt books for sand and for freight. Invoices, whether for sand or freight, are generally issued in the name of Center Sand Company or Eustis Sand Sales. The Petitioner collects sales taxes from its customers for sales of sand. The Petitioner does not collect sales tax on freight charges. The Petitioner and the Department submitted copies of numerous purchase orders, and invoices into evidence. Invoices reflecting all of the transactions involved in the audit were not submitted. Some of the purchase orders and/or invoices reflect that the sales are "f.o.b. origin". F.o.b. literally means "free on board" and refers to the location at which title to goods being bold transfers from the seller to the purchaser. Other purchase orders and/or invoices reflect that the sales are f.o.b the purchaser's place of business. Most of the Petitioner's sales are arranged by telephone conversations with no written purchase order. In these transactions, and even in most transactions in which there are purchase orders, neither the purchase order nor the Petitioner's invoices reflect whether the terms of the transaction are f.o.b. origin or f.o.b. purchaser's place of business. The evidence is undisputed that in these transactions in which the documents do not reflect the precise terms of the transaction, the Petitioner and its customers have treated the sales as if they were f.o.b. origin. In other words, they treated the transactions as if ownership of the sand transferred at the Petitioner's mine. This is generally the practice in the Petitioner's industry, and is consistent with the Petitioner's price quotation and billing practices. The Petitioner has conducted its business in this manner, and collected sales taxes only on the price of the sand for many years. The Petitioner was audited by the Department in 1973, and was assessed for numerous items. It was not assessed for sales taxes on freight. Loads of sand are occasionally lost between the Petitioner's mine and the purchaser's place of business due to an accident or other cause. Generally when this occurs the Petitioner replaces the load of sand. This policy does not reflect that title to the sand has not yet transferred to the purchaser. The cost of a load of sand is somewhat negligible, generally less than twenty dollars, and the Petitioner is willing to replace a load in order to maintain good will with its customers. The Department's audit and proposed assessment covers the period from June 1, 1975 through May 31, 1978. The total amount of the proposed assessment is $12,933.98. Of this amount, $2,213.12 is listed in "Schedule B" of the proposed assessment. The Petitioner does not contest this portion of the assessment. The amount of allegedly due taxes set out in Schedule A of the proposed assessment is $8,853.02. The Department contends that the Petitioner should have collected sales taxes on its freight charges, and $7,133.00 of the Schedule A taxes relate to the disputed freight items. The Petitioner does not dispute the remainder of the taxes set out in Schedule A, $1,720.02, or penalties and interest on that amount. The Petitioner does contend that it is not liable for taxes on the freight charges.
Findings Of Fact Petitioner, Jo Nees, is a 52 year old caucasian woman who appears to be her age. Ms. Nees first moved to Destin, Florida in or about April, 1982, and upon arrival in the area, submitted an application for employment to the Delchamps store which was accepted, but about which she never heard anything from store personnel. Ms. Nees lives in the Destin East Mobile Home Park with Mr. Emerson, a gentleman with whom she has shared the mobile home for several years. In January or February, 1985, Ms. Nees went to the Delchamps store in Destin, where, she alleges, she spoke with the store manager, Mr. Owens, and asked him for an application for employment. At this point, according to Ms. Nees, he refused, indicating he preferred people younger than Petitioner. She concluded from their discussion that he felt that due to the large number of customers during the crowded summer tourist season, she would not be able to keep up and used the term, she contends, "older people." As a result she became quite upset with Mr. Owens and after this colloquy, she paid for her groceries and left. Ms. Nees contends that the conversation referenced above was overheard by the assistant manager, Mr. Few, and the cashier, Kathy Richardson. Though the cashier did not say anything at the time, she was present at the check-out counter where the conversation took place and must have heard it. The assistant manager, Mr. Few, in Ms. Nees' recollection, tried to smooth things over and calm her down. At approximately 4:30 a.m. in November, 1985, just before Thanksgiving, Ms. Nees was again in the Delchamps store. Mr. Few, she contends, came up to her and spoke to her by name. However, as she was checking out a few moments later, and he was manning the cash register, he advised her that if she filed any sort of complaint against the company, he would not know her. Ms. Nees continued to patronize the Delchamps store after the conversations with Mr. Owens because it is the only major supermarket in the area and she prefers to use it because of the quality of the product and the price. At no time has she been offered an application for employment by the store, nor has she been offered employment. As of the hearing, Ms. Nees had a job at a convenience and package store in Destin where she has worked since May, 1985. At the time she applied for a position with Delchamps she had been unemployed since December, 1984, when she left her prior job as manager of a local motel because of poor wages. In May, 1985, she was earning $4.20 an hour on a 40-hour week. Though complaining about the fact that she was not offered employment or even given an application in January, 1985, Petitioner is nonetheless satisfied that at that time, no employment was available at the Delchamps store. She contends, however, that they could have accepted her application and hired her even though she was not needed so that she would be available later on when the busy season came. At the time of the application, the period was one of low employment in the area. Ms. Nees has also filed a discrimination complaint against the neighboring Eckerd's Drug Store for failure to hire her, also on the basis of age. At the hearing, Petitioner testified that she had applied to Delchamps only once, yet on cross examination it appears she applied once and requested an application a second time. The EEOC form 5 filed in April, 1985, reflects that she applied three times for a position at Delchamps. Ms. Nees explains that the information contained on the form 5, though it bears her signature, was given over the telephone to the clerk at the Commission office and that she only applied once and requested an application form a second time. Inasmuch as Ms. Nees' testimony indicates that she applied in January or February, it is quite possible that in recounting the story over the telephone, the clerk misunderstood her comment and put down that she applied in both January and February, 1985, and that Ms. Nees failed to catch the mistake when she signed the form. This is, however, de minimus. What is more significant is the fact that none of the other parties involved identified by Ms. Nees, have any recollection of the situation being as she describes it. According to Mr. Owens, Ms. Nees at no time ever asked for an application, nor did he ever make to her the comments that she attributes to him. When he saw her at the investigation conducted by CHR, he recalled having seen her previously as a customer in the store, but at no time did she ever discuss employment with him, either alone or in the presence of Mr. Emerson, who, she claims, was a witness to the entire situation. Delchamps' policy is to accept an application form from anyone who asks for it and keep it on file. When employees are needed, people from the filed applications are called and interviewed, and selections are made. It is not company policy to take on as full-time employees, people who have not worked within the company before. Instead, people are hired on a part- time basis and then promoted to full-time positions from part- time status when openings occur. During the winter months, Mr. Owens has a staff of between 70 and 75 people. During the tourist season, that figure increases up to 120. Mr. Few, present at the discussion with Mr. Owens, does not recall any meeting between Nees and Owens and denies age discrimination. He agrees he saw her at the delicatessen counter early one morning as she alleges and greeted her. She seemed to be complaining to the counter clerk about Delchamps employment policy. When she got to the check-out counter he was manning, he offered her an application form in the hope it would put an end to the matter. She refused to accept it, however, and left after paying for her purchases. Kathryn Guidas, the cashier at the time of the alleged conversation between Ms. Nees and Mr. Owens, recalls seeing Petitioner in the store numerous times as a customer, but did not hear any conversation between Petitioner and Mr. Owens regarding employment. In fact, she has never seen Petitioner and Mr. Owens together. She has been asked for application forms by customers from time to time. When this happens, she refers them to either the manager or his assistant. Petitioner has not, to the best of her knowledge, ever asked her for an application form. On one occasion, Mr. Emerson mentioned that he had filed an employment discrimination complaint against the company and expected to hear something soon, but made no mention of any discrimination complaint by Petitioner. In her testimony at the prior inquiry, Ms. Nees identified Vicky White as an employee who was present at the conversation she claims to have had with Mr. Owens. Ms. White has worked in the Destin store as a clerk in the bakery and deli for approximately 10 years, but denies having ever seen Petitioner prior to the hearing. Neither does she know Mr. Emerson and she denies she has ever discussed company hiring policy with either Petitioner or Emerson. She has never been present at any conversation between Owens and Nees. In light of the above, it is most likely that Ms. Nees did not ask for an application at all. It would have been unnecessary for Owens to deny her one in light of the policy when, if she was not wanted, she need not have been called in for an interview. Ms. Nees would like to be compensated for the time she was improperly denied employment by Delchamps and would like to be offered a permanent job at the store. She is concerned, however, that if offered a job as a result of a settlement, she would be discharged shortly thereafter: a result that she does not desire. If she is to be hired, she would like to be assured that she can keep the job and not face layoff as retribution for her actions here. In her post hearing submission, she reiterates her desire for a settlement and a job because she is, apparently, no longer working at the convenience store and the Delchamps store is only two blocks from-her residence. Based on all the evidence, considering the inherent probabilities and improbabilities of the testimony, it is obvious that Ms. Nees is anxious to be employed by Delchamps and/or to receive compensation from them. She has, however, scant evidence to establish that she was discriminated against because of her age. She admits that there were no openings at the time of her alleged conversation with Mr. Owens, and that she also filed a discrimination complaint against Eckerd' s, again knowing that no vacancies existed. When Ms. Nees was not hired, it was clearly for undisclosed reasons other than her age and there is no evidence of any discrimination by Respondent
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petition for Relief filed by Jo Nees be denied. RECOMMENDED in Tallahassee, Florida this 9 day of May, 1986. ARNOLD H. POLLOCK, 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 9th day of May, 1986. COPIES FURNISHED: Jo Nees Box 89 Destin East Mobile Home Park Destin, Florida 32541 William C. Tidwell, Esquire Post Office Box 123 Mobile, AL 36601 - Donald A. Griffin, Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). However, since the pallets were not an agricultural product produced by Petitioner and were not considered in the price of the bahia sod but were exchanged back and forth between Petitioner and his customer, including Respondent American, they are not considered to be an agricultural product in this case and are excluded from any consideration for payment under Section 604.15-604.30, Florida Statutes. The amount charged Respondent American for these pallets was $1,188.00. At all times pertinent to this proceeding, Respondent American was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 3774 by the Department, and bonded by Respondent Peerless Insurance Company (Peerless) in the sum of $15,000 - Bond No. SK-2 87 38. At all times pertinent to this proceeding, Respondent Peerless was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). During the month of January, 1985 Respondent American purchased numerous pallets of bahia grass sod from Petitioner paying $16.00 per pallet but has refused to pay for 240 pallets at $16.00 per flat for a total amount of $3,840.00 picked up by Respondent American's employees and billed by Petitioner between January 16, 1985 and January 26, 1985. Respondent American did not contest having received 204 pallets of bahia grass sod represented by invoice number. 6774- for 18 pallets on 1/16/85; 6783, 6785, and 6788 for 18 pallets each on 1/17/85; 6791, 6793, 6794, 6795, and 6800 for 16 pallets each on 1/18/85 and 6799 for 18 pallets on 1/18/85, 6831 for 18 pallets on 1/28/85; and 6834 for 16 pallets on 1/30/85 but contested invoice numbers 6835 and 6836 for 18 pallets each on 1/26/85. Gary L. Curtis stipulated at the hearing that Respondent American had received the 36 pallets of bahia grass sod represented by invoice numbers 6835 and 6836 which left only the matter of Respondent American's contention that it was owed credit for 20 pallets of bahia sod received in December, 1984 that was of poor quality and fell apart and had to be replaced because it could not be used. The evidence was insufficient to prove that any of the sod purchased by Respondent American from Petitioner fell apart or was of poor quality and as a result could not he utilized by Respondent American.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein it is RECOMMENDED that Respondent American be ordered to pay to the Petitioner the sum of $3,840.00. It is further RECOMMENDED that if Respondent American fails to timely pay the Petitioner as ordered then Respondent Peerless be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 10th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of March, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Gary L. Curtis, President American Sod Company, Inc. Post Office Box 1370 Longwood, Florida 32750 Mid Florida Sod Company 4141 Canoe Creek Road St. Cloud, Florida 32769 Peerless Insurance Company 611 Aymore Road/Suite 202 Winter Park, Florida 32789 Raymond E. Cramer Esquire Post Office Box 607 St. Cloud, Florida 32769
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.
