Findings Of Fact Respondent is the governmental agency responsible for certifying persons as minority business enterprises. Petitioner applied for certification as a minority business enterprise. Petitioner is a minority business enterprise within the meaning of Section 288.703(2), Florida Statutes. 1/ Petitioner is a small business concern, domiciled in Florida, and organized to engage in commercial transactions. Petitioner is a Florida corporation wholly owned by Ms. Sandra A. Pichney, vice president, and by Mr. D.B. Young, president. Petitioner engages in the roof consulting business. Ms. Pichney owns 51 percent of Petitioner's outstanding stock. Ms. Pichney is a member of a minority group for purposes of Chapter 288. The remaining 49 percent of Petitioner's outstanding stock is owned by Mr. Young. Mr. Young is a licensed architect. No professional license is required for Petitioner to engage in the business of roof consulting. Petitioner has all of the occupational licenses required to engage in the commercial transactions required to conduct its business. Ms. Pichney has 16 years experience in the roof consulting business. Ms. Pichney controls the daily management and operations of Petitioner's business. Ms. Pichney: manages and operates the office; and is responsible for payroll, accounts receivable, and general financial matters. Ms. Pichney conducts field visits, estimates jobs, reviews projects, and rewrites specifications. Ms. Pichney is the person who signs checks for Petitioner in the ordinary course of Petitioner's trade or business. Mr. Young is authorized to sign checks but only signs checks in emergencies. Ms. Pichney hires and fires personnel. Ms. Pichney consults with Mr. Young, but the ultimate responsibility is born by Ms. Pichney. Ms. Pichney reviews specifications and design work for specific projects and makes amendments where appropriate. Original specifications and design work are prepared by Mr. Young and other personnel. Mr. Young, and other personnel, can be terminated by Ms. Pichney without cause. Mr. Young can be terminated as an employee at any time by Ms. Pichney, without cause. Mr. Young has no employment agreement or shareholder agreement with the company. The board of directors are comprised of Ms. Pichney and Mr. Young. Any director may be dismissed by a majority of the shareholders. As the majority shareholder, Ms. Pichney can terminate Mr. Young, as a director, without cause. Ms. Pichney and Mr. Young receive salaries and monthly draws. Although salaries are equal, monthly draws and dividends are distributed in proportion to the stock ownership of each shareholder. Ms. Pichney has exclusive use of the company car. Ms. Pichney's stock ownership has increased over the last two years because Mr. Young has been unable to attend to the demands of Petitioner's business due to Mr. Young's divorce. Ms. Pichney has properly reported the increase in stock ownership, for purposes of the federal income tax, and has, and will, pay the requisite income tax on her increased stock ownership. Ms. Pichney and Mr. Young consult with each other in making significant decisions in the ordinary course of Petitioner's business. However, the ultimate responsibility for those decisions is born by Ms. Pichney.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order granting Petitioner's application for certification as a minority business enterprise. RECOMMENDED this 22nd day of July, 1995, in Tallahassee, Florida. DANIEL MANRY 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 22nd day of July, 1995.
Findings Of Fact Tholy Construction, Inc., applied for minority business enterprise status with the State of Florida in three basic areas, minority consulting, grassing and trucking. Tholy Construction, Inc., was founded in May, 1983, by Thomas L. Hawthorne and his wife, Lynette Hawthorne. Mr. & Mrs. Hawthorne own 100 percent of the capital stock of Tholy Construction, Inc. Mr. Hawthorne serves as the President and Chief Operating Officer, and Mrs. Hawthorne serves as Vice- President and Office Manager. Both Mr. & Mrs. Hawthorne are Black. Thomas L. Hawthorne is a graduate of Florida A & M University with a major in Business Administration and Accounting After graduation in 1972, Mr. Hawthorne went to work for the Department of Transportation as a Right-of-Way Agent. At the Department of Transportation, Mr. Hawthorne's basic assignment was the acquisition of property for road building projects. In 1973, Mr. Hawthorne moved to Dothan, Alabama, and became an employee of Pike Building Company. This was not an administrative position, but was a construction worker position. Mr. Hawthorne worked there for ten months and then took a position at Couch Construction Company in Dothan as a personal trainee in the area of equal employment opportunity. Couch Construction is a large construction company engaged in road building and airport construction. Mr. Hawthorne was employed at Couch Construction Company from 1974 to 1983, having responsibility for compliance with minority requirements of the Federal Government, setting up programs to attract and secure minorities, assisting minorities in proposing bids for subcontracts, and decision making relative to the cost of bidding projects. Lynette Hawthorne has worked full time at Tholy Construction Company since December, 1983. Her major areas of responsibility are the financial and bookkeeping procedures of the company. Previously, she worked in banking for six years, and her education consists of two and a half years of business administration at Florida A & M University. Mrs. Hawthorne is being trained by her husband to prepare bids and bid proposals, and is in training to inspect job sites of projects to make sure that they are completed in accordance with specifications. Tholy Construction, Inc., is incorporated under the laws of the State of Alabama. The offices are located at 1701 Reed Street, Suite 105, in Dothan. There are presently two full time persons working in the office. Thomas Hawthorne and his wife, Lynette Hawthorne. Tholy Construction, Inc., is certified as a minority business enterprise in both the States of Alabama and Georgia. Mr. & Mrs. Hawthorne give all the orders as far as work is concerned, they prepare their own income tax returns, file their quarterly statements with the Federal Government, and make out the payroll. They are the only ones authorized to sign checks and entered into lease agreements, and the business pays 100 percent of their salary. In the states where the company is certified under the minority enterprise program, bids are regularly submitted on behalf of the Tholy Construction, Inc. Through December, 1983, Tholy Construction, Inc. grossed $200,320.39. Mr. Hawthorne has been successful in gaining several contracts for minority consulting work, one with his former employer which includes monitoring of the ? ? programs. In addition, Tholy Construction ? ? ? ? contracts with at least one other small construction company to provides technical business assistance and payroll services. This is with Salter Construction Company which is a 100 percent minority-owned corporation, employing about 20 persons. In the area of grassing, there are several projects that Tholy Construction Company has completed or is involved in, including Lowe Field in Alabama and the grassing project on Interstate 10. Mr. Hawthorne is familiar with grassing projects, including the need for flat bed trucks to pick up and haul the grass, mulching machines, the 888 fertilizers, and the different types of grass, Osora, Bermuda and Bahia. In each case, according to specifications of the grassing projects, Tholy Construction leases the area where the grass comes from, supplies the necessary fertilizer, and puts the grass in place on the particular project. In the area of trucking services, Tholy Construction, Inc., regularly bids on trucking and hauling projects in the states where it is certified as a minority business enterprise. However, the company has not purchased any equipment, and its basic method of operation is to subcontract with companies in the area to do the work. The company has two full time employees, Thomas Hawthorne and Lynette Hawthorne. On work at the Army's Lowe Airfield, there was a contract requirement that a certified payroll be maintained so the Army could monitor the wages paid individuals doing the work. In leasing the earthmoving equipment for site preparation on this project, Tholy Construction agreed to carry the equipment operators on its payroll to satisfy the contract requirement for a certified payroll. The company has subcontracted with other companies to perform different items of work on this project, and basically all other construction type work has been subcontracted by Tholy Construction. During 1983, 70 percent of the contract income of $181,310.39 shown by Tholy Construction was with Couch Construction Company, and 90 percent of the consulting income of $19,200 was with Couch. Also, Tholy rents equipment and purchases material from Couch, which is the largest construction company in the Dothan area. The MBE Rule requires firms to have adequate resources such as equipment and personnel to do the work, and does not allow brokers to become part of the MBE program. A broker does not own equipment or have its own personnel, but subcontracts the work to another company. If a firm subcontracts, it must perform at least 51 percent of the work with its own personnel and equipment to meet the requirements for certification. The firm must have in-house resources, necessary personnel, expertise and experience to do the work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Tholy Construction, Inc., be DENIED certification as a Minority Business Enterprise in the area of trucking, and GRANTED certification as a Minority Business Enterprise in the area of minority consulting and grassing. THIS RECOMMENDED ORDER entered this 9th day of August, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS 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 August 1984. COPIES FURNISHED: Luther C. Smith, Esquire 219 E. Virginia Street Tallahassee, Florida 32301 Vernon L. Whittier, Jr. Esquire Haydon Burns Building, MS 58 Tallahassee, FL 32301
The Issue This issue in this case is whether the Petitioner's application for certification as a Minority Business Enterprise should be approved.
Findings Of Fact On or about November 17, 1994, Northwest Engineering, Inc., (Petitioner) submitted an application for certification as a Minority Business Enterprise (MBE) to the Florida Commission on Minority Economic & Business Development (Respondent). The application was signed by the Petitioner's president, Gerald Silva. According to the application, the Petitioner is of Portuguese heritage. The Petitioner's mother was born in the Azores. By letter of April 5, 1995, the Respondent advised the Petitioner that it was not eligible for MBE certification. The letter stated that the Azores were not within the geographical restrictions set forth by Florida Statutes. Official notice is taken that the Azores are a group of Portuguese islands lying in the Atlantic Ocean approximately 740 miles west of southern Portugal. The Azores are not part of Mexico, South America, Central America, or the Caribbean. Accordingly, persons with origins in the Azores do not fall within the statutory definition of Hispanic Americans for purposes of certification as a Minority Business Enterprise. The evidence fails to establish that the Petitioner is entitled to certification as a Minority Business Enterprise.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Minority Economic & Business Development enter a Final Order denying the application of Northwest Engineering, Inc., for certification as a Minority Business Enterprise. DONE and ORDERED this 8th day of September, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 8th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2056 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3,5. Rejected, immaterial. COPIES FURNISHED: Crandall Jones, Executive Administrator Collins Bldg., Suite 201 107 West Gaines St. Tallahassee, FL 32399-2005 Gerald Silva 8409 Sunstate Street Tampa, Florida 33634 Joseph L. Shields, Esquire 107 West Gaines Street, Suite 201 Tallahassee, Florida 32399-2005
The Issue The central issue in this case is whether Petitioner is entitled to be certified as a minority business enterprise.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Certified General Contractors & Developers, Inc. is a Florida corporation organized to do business in this state. Jeri Dee Goodkin, at all times material to this case, has been the president and sole owner of Certified General Contractors & Developers, Inc. Ms. Goodkin is a minority person as that term is defined by Section 288.703, Florida Statutes. Jeri Dee Goodkin holds a general contractor's license, number CGC041575, which was issued by the Construction Industry Licensing Board. Ms. Goodkin is the only employee of Certified General Contractors & Developers, Inc. so licensed. The sole business of the company is to do general construction contracting. Ms. Goodkin's father, Ivan Goodkin, and brother, Mark Goodkin, are employed by the company. Both father and brother work as salesmen. They attempt to procure jobs for the company, and their responsibilities include estimating the price at which the work can be completed. Once the job is secured, Ms. Goodkin contacts subcontractors who submit bids for portions of the job. Ivan and Mark Goodkin may supervise the jobs they procure for the company. Ms. Goodkin is also responsible for supervision and must be on site for inspections performed by governmental agencies. According to two subcontractors with whom Petitioner has done business, Jeri Dee Goodkin negotiated and reviewed all work performed by the subcontractors. Prior to forming the Petitioner company, Ms. Goodkin and her father and brother worked for another company which was involuntarily dissolved by the Secretary of State. Ivan Goodkin was not an owner of the prior company. There is no evidence from which it could be concluded that the Goodkins owned or solely operated their prior employer. Jeri Dee Goodkin has executed a lease on behalf of the company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered approving Petitioner's request to be certified as a minority business enterprise. DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Buildinc 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1988. APPENDIX Rulings on Proposed Findings of Fact submitted by Petitioner: Paragraphs 1,2,3,5.7,8,10,13,and 14 are accepted. Paragraph 4 is rejected as not supported by the record in this cause. Paragraph 6 is rejected as not supported by the record in this cause. Paragraph 9 is rejected as argument or comment unnecessary to the determinations and findings of fact. That portion of paragraph 11 which sets forth the license number for Jeri Dee Goodkin is accepted, the rest of the paragraph is rejected as not supported by the record in this cause. Paragraph 12 is rejected as not supported by the record in this cause. Paragraph 15 is rejected as argument, irrelevant or unsupported by the record in this cause. With regard to the subparagraphs listed under paragraph 16, the following findings are made: subparagraphs 2,3,7,10,13,and 27 are accepted. Subparagraph 28 is accepted to the extent that Jeri Dee Goodkin is the only licensee employed by the company. All other subparagraphs are rejected as unsupported by the record in this cause. Rulings on proposed findings of fact submitted by the Department: Paragraphs 1,2,3,4,8,9,10,11,13,and 15 are accepted. Paragraph 5 is accepted, however is deemed irrelevant and immaterial to the resolution of the issue in this case. The evidence does not establish nor suggest that the Goodkins had an ownership interest in the prior company with whom they were employed. Paragraph 6 is rejected as irrelevant and immaterial. Paragraph 7 is rejected as speculative or argument. At best the lease shows it was executed by Jeri Dee Goodkin. The "Mr.Goodkin" referenced on the lease is not explained either by the document itself or the record in this cause. Paragraphs 12 and 14 are rejected as a recitation of testimony, argument or irrelevant comment. COPIES FURNISHED: Deborah S. Rose Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Jeri Dee Goodkin Certified General Contractors & Developers, Inc. 16375 Northeast 18th Avenue North Miami Beach, Florida 33162 Ronald W. Thomas Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955
The Issue Whether Petitioner is eligible for certification as a "minority business enterprise" in the area of landscape contracting?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a Florida corporation that was formed and incorporated by Margaret Gordon, who is the corporation's sole shareholder and its lone officer and director. Gordon is an American woman. Before forming Petitioner, Gordon held various jobs. Among her former employers are Florida Maintenance Contractors and Scenico, Inc. She worked for the former from 1984 to 1991, and for the latter from 1984 to 1990. As an employee of Florida Maintenance Contractors and Scenico, Inc., Gordon supervised landscaping projects. As a result of this work experience, Gordon has the managerial and technical knowledge and capability to run a landscape contracting business. Petitioner is such a landscape contracting business, although it has not undertaken any landscaping projects recently. Its last project was completed two years prior to the final hearing in this case. Since that time, the business has been inactive. Gordon's two sons, working as subcontractors under Gordon's general supervision, have performed the physical labor and the actual landscaping involved in the previous jobs Petitioner has performed. Gordon herself has never done such work and she has no intention to do so in the future. Instead, she will, on behalf of Petitioner, as she has done in the past, use subcontractors (albeit not her sons inasmuch as they are no longer available to perform such work.) Petitioner filed its application for "minority business enterprise" certification in the area of landscape contracting in March of 1994.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a final order denying Petitioner's application for certification as a "minority business enterprise" in the area of landscape contracting. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of October, 1995. STUART M. LERNER 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 9th day of October, 1995.
The Issue Whether Florida Moving Systems, Inc. should be certified as a minority business enterprise by the Respondent, pursuant to Section 288.703(1) and (2), Florida Statutes and the applicable rules implementing the statute.
Findings Of Fact Claudia Deneen and Thomas B. Deneen, husband and wife, and another partner purchased the applicant company with joint funds in 1988. Subsequently, the business was incorporated and the name changed to Florida Moving Systems, Inc. Prior to the time of the incorporation of the business, David P. Astolfi bought out the original partner and obtained a 25 percent share in the incorporated business. Claudia Deneen, Thomas B. Deneen and David P. Astolfi presently serve as the Directors of the applicant corporation. Neither Thomas B. Deneen nor David P. Astolfi qualify for classification as a "minority." In 1992, Claudia Deneen obtained her husband's stock in the corporation without consideration, but for prior services rendered. Claudia Deneen now holds 75 percent of the outstanding stock in her name. While Claudia Deneen was out on maternity leave in 1992, Thomas Deneen ran the business. Claudia and Thomas Deneen, as well as David Astolfi each have authority to individually sign business checks. Astolfi who serves as Vice President for Sales, is paid $1100 weekly, Thomas Deneen who serves as President, is paid $1500 weekly. Claudia Deneen who serves as Vice President, Secretary/Treasurer, and chief purchasing agent, is paid $1000 weekly when money is available. Both Claudia and Thomas Deneen signed and guaranteed the business leases. All three Directors, Claudia and Thomas Deneen and Astolfi, share common ownership in a similar business called Florida Distribution Systems, Inc. which is housed adjacent to the applicant. Thomas Deneen signs 90 percent of applicant's payroll checks. Business decisions are made jointly by all directors. Claudia Deneen is the chief purchasing agent for the corporation and maintains control over the purchase of goods, equipment and services. She also participates in the hiring and firing of personnel and the setting of all employment policies. Petitioner's offer of proof, consisting of business letters or recommendation, all recommended both Claudia and Thomas Deneen as a team, not individually.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application for Minority Business Certification filed by Florida Moving Systems, Inc. on January 17, 1994, be DENIED. DONE and ENTERED this 1st day of September, 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 1st day of September, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1-13. COPIES FURNISHED: Claudia Deneen Vice President and Secretary/Treasurer 4317 Fortune Place West Melbourne, Florida 32904 Joseph L. Shields, Esquire Senior Attorney 107 West Gaines Street 201 Collins Building Tallahassee, Florida 32399-2005 Crandall Jones Executive Administrator Collins Building, Suite 201 107 W. Gaines Street Tallahassee, Florida 32399-2000
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.
The Issue Whether Expedient Services, Inc. should be certified as a minority business enterprise by the Respondent, pursuant to Section 288.703(1) and (2), Florida Statutes and the applicable rules implementing the statute.
Findings Of Fact Petitioner is a Florida corporation founded prior to 1978 by five minority owners who purchased all of the stock originally issued. The primary business of the corporation was to provide janitorial services for corporate and governmental clients. In 1978, Harvey Hughes was hired as president and CEO. As part of his compensation package, Hughes purchased a minority interest in the corporation at par value. Hughes continues to serve in that capacity to the present day. Beginning after 1983, the five original stockholders, on separate occasions, sold their shares back to the corporation leaving Hughes as the sole stockholder with 833 shares outstanding. In the late 1980's, Hughes' son, Carl Hughes, joined the company as Vice-President and began the process of changing the type of services the corporation provided. He became a minority shareholder in 1991. Sherry Hughes has served as a member of the Board of Directors and Secretary/Treasurer to the Corporation for many years. In addition, she is employed by the Corporation as its Human Resources Director. In 1992, for past services rendered and no additional consideration, Horace Hughes transferred 450 shares, or 54 percent of the outstanding shares, to Sherry Hughes, his wife. Fifty-Four percent of the Petitioner/applicant is presently owned by Sherry Hughes, a woman. The Petitioner's current business is the repair and sales of computers and peripheral equipment. The majority owner, Sherry Hughes, is not a computer technician. She cannot diagnose a computer which needs repairs. The corporation hires computer technicians. Sherry Hughes does not hire technicians, as that duty has been delegated to the Service Manager, Vincent Schneider. Additionally, Schneider usually does the firing when needed. Payroll for Petitioner is done by an employee, Kathy Levann. Mrs. Hughes purchases office supplies and leaves the purchasing of technical supplies to a buyer. The company presently has three male Directors and two women Directors, including Sherry Hughes. All the Directors are authorized to sign corporate checks. For their work, Sherry Hughes is paid $5.00 hourly; Horace Hughes is paid $12-14 hourly and Carl Hughes is paid $12-15 hourly. All are stockholders. Horace Hughes, as President, signed the lease for the business location. Horace Hughes signed the affidavit for insurance on the business vehicles. Horace Hughes signed for a business loan in the financed amount of $70,302.71, both as President and Guarantor at SunTrust Bank. Horace Hughes is authorized by corporate resolution to borrow money on behalf of the corporation. Carl Hughes entered into the agreements with various computer dealers on behalf of the Petitioner. Sherry Hughes does not handle invitations to bid. Carl Hughes handles all invitations to bid, cost estimating and negotiations. Applicant has not established by competent evidence that Sherry Hughes exercises a real, substantial continuing ownership and control of the applicant corporation. Other than her salary, no evidence was introduced to establish that Sherry Hughes receives income commensurate with the percentage of her ownership in the company. Sherry Hughes failed to establish that she shares in all of the risk through her role in decision-making, negotiations, and execution of documents as either an individual or officer of the corporation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application for Minority Business Certification filed by Expedient Services, Inc. on April 7, 1995, be DENIED. DONE and ENTERED this 12th day of June, 1996, 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 12th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5067 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1-18. COPIES FURNISHED: Horace Hughes, President Expedient Services, Inc. Post Office Box 5400 Titusville, Florida 32783-5400 Joseph L. Shields General Counsel Commission on Minority Economic and Business Development 107 West Gaines Street 201 Collins Building Tallahassee, Florida 32399-2000 Veronica Anderson Executive Administrator Commission on Minority Economic and Business Development Collins Building, Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000
Findings Of Fact The Petitioner, Parson & Associates, Inc., d/b/a Overhead Door Company of Tampa Bay (Parsons & Associates), is a Florida corporation, having been incorporated under the laws of the State of Florida in March, 1992. The principal place of business for Parsons & Associates is 5134 W. Idlewild, Tampa, Florida. The Petitioner corporation engages in the business of the sale, installation, and repair of overhead doors, both residential and commercial. The corporation has ten (10) full-time employees and one (1) part-time employee. The only stockholders of the Petitioner corporation are: Gail Parsons, the minority owner; and her son-in-law, Robert Briesacher. Gail Parsons owns eighty (80 percent) of the stock of Parsons & Associates. Robert Briesacher, who is not a minority, owns the remaining twenty (20 percent) of the Petitioner corporation. Gail Parsons was the incorporator of Parsons & Associates when it was initially incorporated. She also is its President. Robert Briesacher is the Vice-President. Prior to the incorporation of Parsons & Associates, Gail Parsons, who has a Bachelor of Business Administration degree, worked for the Better Business Bureau. Robert Briesacher had previous experience in the overhead door business, having worked for Overhead Door Company of Clearwater. Briesacher, who at the time was engaged to marry Parsons's daughter, learned from Overhead Door Corporation (the manufacturer) that the manufacturer intended to establish a distributorship in Tampa. Briesacher told Parsons about it. While Briesacher had the knowledge and experience to successfully sell, install, and repair both residential and commercial overhead doors, he had no money to invest in the business opportunity and had no experience running his own business. Thinking that she might be able to help her daughter and future/present son-in-law, and herself, by combining her capital and business and financial skills with his knowledge and technical skill in the automatic door business, Parsons suggested to Briesacher that they go into business together. He readily agreed, and the pursued the opportunity with the manufacturer. Parsons incorporated the business, registered the fictitious name, compiled the business plan, developed the cash flow projections (with Briesacher's help), found the office/warehouse space (which the manufacturer had to approve), and negotiated, executed, and personally guaranteed the lease agreement and negotiated the Distributorship Agreement with the manufacturer. Briesacher provided none of the initial start-up monies for the Petitioner. Gail Parsons is the financial interest holder in the corporation, having made all the initial contributions to capital ($38,000), as well as making all the personal loans to the corporation thereby accepting all the financial risk. Parsons personally guaranteed the promissory note, the credit agreement, contracts required to be personally guaranteed and the warehouse lease. The Distributorship Agreement is a standard Overhead Door Corporation agreement common to all distributors nationwide. It is customary for a manufacturer like Overhead Door Corporation to offer a distributor incentives-- like yellow page advertisement, signage, and telephone numbers--in order to gain market penetration. In the case of Parsons & Associates, Overhead Door supplied a telephone number (the number Overhead Door previously had bought from the prior distributor in Tampa), a year's worth (about $10,000) of yellow page advertising, and some signage. The total fair market value of the incentives to Parsons & Associates was approximately $31,000, but the marginal cost to the manufacturer was less. In the initial months of operation of the business, Gail Parsons had to rely on Briesacher and the first employee they hired, Charles Martin, who worked under Briesacher at Overhead Door of Clearwater, to teach her what she had to know about the technical aspects of the business. She had to learn about the Overhead Door products and the basics of how to install them. This knowledge, which she quickly acquired, soon enabled her to take service orders, schedule the orders, supervise the day-to-day activities, perform trouble-shooting over the telephone and handle all of the sales calls. Meanwhile, Robert Briesacher was in the field with Martin installing and servicing Overhead Doors. Briesacher currently corresponds with the factories on product orders, schedules and supervises the installers, and takes the physical inventory. Commercial bidding is only one portion of the total corporate sales, which includes residential new construction, residential service and residential retrofit. Over ninety-five (95 percent) percent of the business of Parsons and Associates is handled over the telephone from the office where Parsons spends virtually one hundred (100 percent) percent of her time. Parsons is personally responsible for the majority of the residential sales, including negotiating and contracting with contractors, and negotiating and entering into the agreement to provide installation services for Home Depot door sales. Business from negotiating, estimating, and bidding on contracts in the field is a relatively small portion of the company's overall revenues. Gail Parson is involved in the interviewing of prospective employees, including Martin and Charles Jarvis. She confers with Briesacher, but she alone controls hiring and firing. She possesses the knowledge to evaluate employee performance and has demonstrated her supervisory authority and evaluation skills in exercising her authority to fire an employee. Actually, it is not difficult to evaluate the performance of installers: service calls on warranty work and customer complaints generally tell her all she needs to know. The Petitioner/corporation has both commercial and residential outside sales persons who prepare bids for the Petitioner. The minority owner, Gail Parsons, establishes the geographic and profit margin parameters, which ultimately control the bidding process. She inspects all bids prior to executing the contracts, thereby further controlling who, where and under what terms the Petitioner corporation does business. In fact, Parsons recently rejected an accepted bid and cancelled the job because it was too far from Tampa. While both Gail Parsons and Robert Briesacher are authorized to sign checks for Parsons & Associates, Briesacher has signed less than five checks, out of the thousands of checks written. Parsons and Briesacher draw the same salary. However, their salaries are commensurate with the work they perform for the company. Parsons has chosen the salary levels; Briesacher does not even know what Parsons's salary is. Parsons also is entitled to an 80/20 split of any future distributions as a result of the operation of the company. Briesacher has the use of a company truck, while Parsons does not. However, Briesacher is a part-time installer and service man, while Parsons is not. All installers/service technicians at Parsons and Associates have the use of company trucks, not just Briesacher. Currently, in addition to controlling the entire corporation and making all of the business decisions, Gail Parsons sets inventory parameters, purchases the inventory, sells doors in the showroom, knows the purchased products, is responsible for accounts receivable, handles the payroll, and assists in the scheduling and supervising of the installers.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Management Services enter a final order granting Petitioner's application for certification as a minority business enterprise (MBE). RECOMMENDED this 14th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1268 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated. First sentence, rejected as contrary to facts found; the rest is accepted and incorporated. Second sentence, rejected to the extent that it implies that Briesacher has no financial interest. Otherwise, accepted and incorporated. Accepted and incorporated. Rejected, as contrary to facts found, to the extent that it implies Parsons knew it all from the start and that Parsons "supervised" Briesacher and Martin installing and servicing doors; in fact, there was a learning curve. Otherwise, accepted and incorporated. 8.-11. Accepted and incorporated. Respondent's Proposed Findings of Fact. 1.-2. Accepted and incorporated to the extent not subordinate or unnecessary. 3.-4. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected in part as contrary to facts found and as contrary to the greater weight of the evidence. (She makes sales and trouble- shoots, and is no longer just learning those aspects of the business.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. However, except for actually installing and servicing doors, Parsons also does the same jobs as Briesacher to some extent, and some of Briesacher's functions are ministerial in light of Parsons's management decisions. Penultimate sentence, rejected as contrary to facts found and as contrary to the greater weight of the evidence; he proposed "piece-work" but Parsons participated in the final decision. (Since it is standard in Florida, it was not a difficult or controversial decision.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (However, "joint responsibility" should not be construed to mean "equal authority." Parsons has the final say.) Accepted and incorporated to the extent not subordinate or unnecessary. However, while Parsons's knowledge and skill does not exceed the others' in the area of installing and servicing doors, she has enough knowledge to control the business. The characterization "very broad" in the last sentence is rejected as contrary to facts found and as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. However, again, while Parsons's knowledge and skill does not exceed the others' in the area of installing and servicing doors, and while she does not personally install and service doors, she has enough knowledge to control the business. 10.-14. Accepted and incorporated to the extent not subordinate or unnecessary. Again, while Parsons and Briesacher, and other employees, share responsibilities, Parsons has the knowledge necessary to control the business and has dominant control over the business. COPIES FURNISHED: Jonathan D. Kaplan, Esquire 6617 Memorial Highway Tampa, Florida 33615 Wayne H. Mitchell, Esquire Department of Management Services Office of the General Counsel Suite 312, Ninth Building 2737 Centerview Drive Tallahassee, Florida 32399-0950 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Petitioner should be granted certification as a Minority Business Enterprise.
Findings Of Fact Petitioner, Dora Industries, Inc. (Dora Industries), was started in 1989 by Sandra Roth (Roth), an American woman. Roth owns all of the company. Initially, Dora Industries bought janitorial and maintenance products from other companies and sold the products as a distributor. Roth graduated from Hunter College with a degree in graphic arts. From 1979 to 1985, she worked for Union Carbide in North Carolina doing research for the chemical division. She was later placed in charge of dealing with third world countries on ways to use chemicals in agriculture. In 1986, Roth went to work for Gold Coast Chemical Corporation (Gold Coast Corporation), which was owned by Eli Finkleberg. Her role at Gold Coast Corporation included doing the paperwork necessary for registering the chemicals manufactured by Gold Coast Corporations with the appropriate regulatory agency. In 1989, Roth formed Dora Industries and married Eli Finkleberg. Dora Industries purchased some of its products from Gold Coast Corporation. Due to ill health, Eli Finkleberg put Gold Coast Corporation up for sale in 1993. The company was advertised for sale in trade magazines. Using funds which Roth had acquired from the dissolution of a previous marriage, she purchased the manufacturing operations of Gold Coast Corporation in 1993. The purchase price was $96,000, which consisted of $47,091 in cash and the remainder in the assumption and payment of certain leases and contracts. In addition, Roth agreed to renegotiate the lease of the real property on which Gold Coast Corporation was housed to include the costs of clean up for hazardous materials which were found in the ground underneath the Gold Coast Corporation warehouse. The landlord attributed the presence of the hazardous materials to Gold Coast Corporation. The estimated cost of the clean up was not to exceed $200,000. The inventory of Gold Coast Corporation was not included in the sale. However, the inventory remained in the warehouse previously occupied by Gold Coast Corporation and was handled for Gold Coast Corporation by Dora Industries d/b/a Gold Coast Chemical Products (Gold Coast Products). After the inventory was sold Gold Coast Corporation no longer sold any products and has not actively sold chemicals for the last two years. Currently Dora Industries is manufacturing chemical cleaning products, distributing its own products and the products of other companies, and exporting products. Eli Finkleberg is the treasurer and a salaried employee of Dora Industries. His responsibilities include interviewing applicants for sales positions, running the sales division of the company, overseeing the sales manager, and supervising the office staff. His annual salary is approximately $35,000. Due to his poor health, he works between four and six hours a day. Jerome Berman is the general manager in charge of operations for Dora Industries. Mr. Berman owned and ran a chemical company for 23 years prior to coming to work for Dora Industries. His responsibilities include ordering all materials and supplies used in the production of and resale of industrial supplies, hiring and firing of all warehouse and distribution personnel, complying with governmental regulations, bidding, and supervising the warehouse and productions. Mr. Berman's annual salary is $57,000. Both Mr. Berman and Mr. Finkleberg have the authority to sign checks on the Dora Industries account. Mr. Berman's authority is limited to $5,000. Roth is responsible for making major purchases for the business such as a telephone system which she recently acquired. Roth employs a chemist who is responsible for the formulas used in the manufacture of the chemical products. This is the third chemist which Roth has employed since she started Dora Industries. Some of the formulas are given to Dora Industries by the suppliers of the raw materials, and some formulas are developed by the chemist. Roth does not have the expertise to develop formulas but she does have the expertise to manufacture a batch of products using a formula. Each day Roth discusses the sales and operations with Mr. Finkleberg and Mr. Berman, respectively. In the hiring of sales personnel, Roth meets the applicants which have been interviewed by Mr. Finkleberg and makes the final decision on who to hire. Roth has delegated the hiring of the hourly wage personnel in the warehouse to Mr. Berman. According to Berman, he advises Roth who he intends to hire in case she should have an objection. Mr. Berman has to report the reasons that he fires personnel to Roth. Roth did the bidding for the company before Mr. Berman was hired. Mr. Berman follows a set formula of cost plus a percentage of profit in the bidding process and requests permission from Roth before making any significant deviations from the formula. Eli Finkleberg owns Trout and Associates, which is a telemarketing firm selling cleaning chemicals to companies outside of Florida. Trout and Associates has one full-time employee and one part-time employee. The full-time employee is housed in an office in the building occupied by Dora Industries. Trout and Associates buys some of its products from Dora Industries for resale.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner certification as a minority business enterprise. DONE AND ENTERED this 10th day of October, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1996. COPIES FURNISHED: Lorenzo Ramunno, Esquire 1882 North University Drive Plantation, Florida 33322 Joseph L. Shields, Senior Attorney Office of the General Counsel Department of Labor and Employment Security, Division of Minority Business Advocacy and Assistance Office 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle Southeast 303 Hartman Building Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle Southeast 303 Hartman Building Tallahassee, Florida 32399-2152
