Findings Of Fact Respondent is a non-instructional employee of the School Board and has been employed by the School Board of Brevard County for approximately nine (9) years. Respondent is a small engine mechanic and is assigned to the Maintenance Division of the School Board. Respondent's duties are to repair and maintain lawnmowers, edgers and other equipment in the North and Central areas of the Brevard County School District. Respondent was assigned School Board Vehicle No. 271 for transportation during working hours. Vehicle No. 271 is a pickup truck with distinctive School Board markings and a county government license tag. No other person was assigned the use of Vehicle 271. Three (3) sets of keys were maintained for Respondent's vehicle. One set was assigned to Respondent, one set is kept by the Maintenance Division in a key locker and one set is kept by the School Board Vehicle Maintenance Shop on State Road 520 in Cocoa, Florida. On or about February 27, 1989, Leon Cowling, Assistant Superintendent for Facilities and Support Services received a telephone call from Assistant Superintendent, Jerry Copeland, concerning Vehicle 271. Mr. Copeland had been contacted by two civilian employees from Patrick Air Force Base who stated that on or about February 22, 1989, they had seen Vehicle No. 271 in the Cape Canaveral area being driven in an erratic manner by a person holding a pistol and a large amount of cash. Mr. Cowling telephoned the Maintenance Department and relayed this information to Johnny Romans, Maintenance Coordinator, who confirmed that Vehicle 271 was assigned to Respondent and was parked in the maintenance yard. Respondent was on sick leave that day and Cowling asked Romans to secure the truck. Romans checked Vehicle 271 and found it locked. He went to the key locker for the extra set of keys but found them missing. Romans then called the Vehicle Maintenance Shop for their set of keys but those keys were also missing. Romans decided to take the matter up with his supervisor, Henry Hartrich, the next day and left Hartrich a memo on the incident. On or about February 28, 1989, Henry Hartrich returned to work from a conference and read the memo. Hartrich looked in the locked vehicle and observed several key rings and keys hanging on knobs on the dash board and on the console. Hartrich asked the locksmith, Bob Dunkinson, to open the vehicle and bring him all keys found inside. Dunkinson unlocked the vehicle and delivered the keys to Hartrich. Hartrich then asked Dunkinson to identify the various keys found in the vehicle. Dunkinson identified the keys and determined that one ring contained keys to the truck, as well as, keys to Mr. Hartrich's office, Mr. Buckner's office, Bobby Young's office, the warehouse, and the big forklift in the maintenance yard. Respondent was not assigned any of these keys except the truck keys. On March 6, 1989, a meeting was scheduled by the Maintenance Division to discuss the reported sighting of Respondent with a handgun and money in the School Board vehicle. Present at the meeting were the two civilian employees from Patrick Air Force Base who reported the incident, Mr. Cowling, Mr. Hartrich, Mr. Romans, Mr. Buckner and Respondent. At the meeting, Respondent was identified by the Air Force employees as the person they observed in Vehicle 271. Respondent denied having a handgun or cash in the vehicle. The Air Force employees were dismissed from the meeting and Mr. Hartrich then confronted Respondent with the keys found in his School Board vehicle. At first Respondent denied the keys were his, but then admitted that they were. Mr. Cowling suspended Respondent for the remainder of March 6 and March 7 with pay. On March 8, 1989, Respondent was recommended for termination of employment for misconduct for having unauthorized keys in his possession and suspended without pay. The School Board's Maintenance Division is entrusted with millions of dollars of equipment, tools and other public property. Theft of School Board property from the Maintenance Division is a serious problem and access to the areas where the property is stored is strictly controlled. Keys to the equipment storage areas and offices in the Maintenance Division are assigned only to those employees who require access to these areas. Respondent was not assigned the keys to the offices in the Maintenance Division or the warehouse and forklift. He had no reason to have those keys in his truck. Respondent's possession of the unauthorized keys was a serious violation of School Board policy. There have been documents and property stolen from the Maintenance Division in the past several years. The area from which these items were taken were secured by lock and key. Keys to the offices of Mr. Buckner, Mr. Hartrich, and the warehouse were among those discovered in Respondent's vehicle. The unauthorized keys in question were in Respondent's locked vehicle. Respondent was not assigned these keys or authorized to have them in his possession. Respondent was the only person who drove Vehicle 271. There was no evidence presented that any other person had the opportunity or motive to place the keys in Respondent's truck. Respondent did not present any evidence that showed the existence of a conspiracy by his immediate supervisor, Ed Buckner, or others to place the keys in his truck or to cause his termination from employment. Neither the Respondent's testimony nor that of his witnesses showed bias against the Respondent nor motive on the part of any of his supervisors to conspire against him.
Recommendation Based on the findings of fact and conclusions of law set forth herein, it is recommended that Respondent's suspension, effective March 8, 1989, be upheld and that he be terminated from employment with the School Board of Brevard County. DONE AND ENTERED this 30th day of November, 1989, in Tallahassee, Leon County, 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 30th day of November, 1989. COPIES FURNISHED: Burton J. Green, Esquire Post Office Box 320087 Cocoa Beach, Florida 32932-0087 William C. Walker, Jr., Esquire 1260 S. Florida Avenue Rockledge, Florida 32955 Harold T. Bistline, Esquire Building I, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Abraham L. Collinsworth Superintendent School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955 Hon. Larry C. Williamson, Chair School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955
The Issue The issue is whether just cause exists to terminate the employment of Respondent with the Escambia County School Board (School District or School Board).
Findings Of Fact At all times material to these proceedings, Respondent was employed as a leaderman mechanic assigned to the Transportation Department. In this position, he was responsible for ensuring that mechanics properly completed their work and their records. Respondent's direct supervisor was Terry Orso. The Transportation Department is responsible for maintaining and operating the School District's fleet of school buses, as well as the support vehicles which are generally known as the "white fleet." The Transportation Department, including the garage for the maintenance of Petitioner's vehicles, is within the same building as the Parts Department. The Parts Department, however, is separated from the garage by a wall to ensure the security of the stocks of parts until these parts are turned over for installation in and the maintenance of Petitioner's vehicles. As a leaderman mechanic, Respondent initiated "Repair Orders," which were also known as "Work Orders," and completed part of a "Request for Materials," also known as a "chit" so that parts could be ordered from outside vendors and installed in Petitioner's vehicles requiring repair. The School District form known as a "Repair Order" requires information, including the vehicle number assigned by Petitioner, mileage of the vehicle, and the vehicle make and year. The form includes a section to identify the repairs to be made. The practice within the School District is to complete the top portion of the Repair Order when the vehicle is brought in for repairs with the identifying information. Each Repair Order has an identification number. The person completing the Repair Order is usually, but not always, a leaderman mechanic. Once the vehicle is repaired, the leaderman mechanic initials the form to confirm the correct repairs have been made and that the vehicle has been inspected. The initials of the leaderman mechanic are also written next to the identification number when all repairs are completed. When a vehicle has been brought to the Transportation Department for repairs, the Parts Department issues a chit. Once the chit is issued, an employee from the Parts Department, which is usually a leaderman mechanic, completes the upper left portion of the chit. This section identifies the vehicle, the date the request for materials is submitted, the initials of the mechanic submitting the request, the work order number, and the year and make of the vehicle brought in for repair. A Parts Department employee completes the upper right hand portion of the chit with information identifying the date the request for materials is received, the vendor that is contacted, the name of the person from whom the part is ordered at the vendor, and time of the estimated delivery of the parts. In 2007, Petitioner received information from one of its employees, John Bodie, that parts had been ordered from a vendor at the School District's expense for installation in a private vehicle. Mr. Bodie delivered a letter to the superintendent with copies of Transportation Department records attached. Petitioner initiated an investigation based upon the allegations of Mr. Bodie and the records he provided. Mr. Bodie alleged that he had been approached by Garage Manager Terry Orso to repair a vehicle owned by another employee, Ms. Diana Archer. Mr. Bodie claimed that, at Mr. Orso's request, he took Ms. Archer's vehicle, which was a 1988 Chevrolet Blazer, to his home to assess the needed repairs. He made a list of the parts that were needed to repair the Blazer's front end. Mr. Bodie alleged that, after he agreed to make the repairs, Mr. Orso told him the parts were on Lanny's (Respondent's nickname) desk. Mr. Bodie needed two additional brake calipers and alleged he was told by Mr. Orso that the parts would be ordered. Mr. Bodie received the additional parts and completed the repairs on Ms. Archer's Blazer. Ms. Archer paid Mr. Bodie for his services. Ms. Archer's statement was admitted into evidence without objection. She stated that Mr. Bodie repaired her Blazer and that she paid him for the work. She alleged that Mr. Orso told her "not to worry about the parts" and that the cost of the repairs would be $300.00-$350.00. Since Mr. Bodie admitted to being untruthful in an earlier investigation, Petitioner took extra care when attempting to corroborate his allegations. The investigation revealed that through Repair Order #22721 for School District vehicle #8667, a Chevrolet C-10 pick-up truck, parts were ordered for that vehicle, including parts for "front end repair." A chit was then completed for vehicle #8667 with a request for materials received June 2, 2005. The chit ordered "front end parts." The parts were ordered from a vendor First Call and received at Petitioner's Parts Department the same day. The parts ordered through Repair Order #22721 for vehicle #8667, the C-10 pickup, would not fit that vehicle. Those parts did fit a 1988 Blazer owned by Ms. Archer and repaired by Mr. Bodie. Repair Order #22721 bears the initials of Respondent as confirmed by Ms. Karen Nobles, a forensic document examiner. She noted that Respondent has a distinctive style of handwriting and that there was no question that he had initialed the Repair Order in question. To further corroborate Mr. Bodie's testimony, the School Board Auditor David Bryant was directed to check Petitioner's records to verify whether Mr. Bodie ordered the two calipers after initially receiving the parts to complete the repairs to Ms. Archer's vehicle. Mr. Bryant first checked the service records on vehicle #8667. Finding no calipers ordered in June 2005 for that vehicle, he checked a similar vehicle, #8691, another Chevrolet C-10 pick-up truck. Mr. Bryant located Repair Order #24674 dated June 7, 2005, indicating that brake repairs were needed, specifically "R and R both front brake calipers--flex lines." Respondent's initials were found on Repair Order #24674 indicating that the work was requested, inspected, and completed. The Repair Order corresponds with a chit for vehicle #8691, and the work order corresponds with the purchase order for the parts. Ms. Nobles, through forensic examination of these initials, verified that they too belonged to Respondent. The chit, however, was not completed in the normal manner. It was completed by a Parts Department employee identifying "Lanny" as the person requesting materials and that the "parts were ordered by White Fleet direct." The parts that were ordered were two calipers. As was the case with vehicle #8667, the parts that were ordered would not fit vehicle #8691, a Chevrolet C-10 pick-up truck, but would fit Ms. Archer's Blazer. Dr. Alan Scott, Assistant Superintendent, received a call from a mechanic telling him that Respondent and another mechanic, Robert Hutto, were planning to bring the C-10 pick-up truck into the garage to make it look as though repairs had been done to the front end of the truck. Dr. Scott and Mr. Bryant moved the truck into an area covered by surveillance cameras and then called the Sheriff's Department. The truck was secured by the Sheriff's Department and removed to its impound yard to be inspected by Sheriff's Department mechanics. Sheriff's Department employee, Louie Kemp, inspected Petitioner's C-10 pick-up truck and found that no new parts had been installed on its front end. Mr. Bryant's investigation concerning vehicle #8691 demonstrated not only that the brake parts ordered would not fit the C-10 pick-up truck, but that the same brake repairs had been reported as completed on the same C-10 pick-up truck three times in 2005: on February 16, June 7, and October 20. The State Attorney's Office reviewed the same evidence and determined not to further prosecute the case against Respondent, entering a Nolle Prosequi in the matter of State of Florida v. Andrew L. Mardesich, Circuit Court Case No. 1707CF005289B, for the reason that insufficient evidence existed to prove the charge beyond a reasonable doubt. Respondent does not know nor does he have any relationship with Ms. Archer. Respondent never spoke with Ms. Archer or anyone else about parts or repairs for her Blazer. Mr. Bodie acknowledged that he never spoke with Respondent about parts he needed to perform the work on Ms. Archer's Blazer; nor did Mr. Bodie obtain any parts from Respondent; nor was Respondent present when Mr. Bodie allegedly got the parts from Respondent's desk to repair Ms. Archer's vehicle. Mr. Bodie testified via deposition that he never personally observed Respondent involved with the purchase and installation of parts in Ms. Archer's car in any way. Mr. Bodie was not aware of any benefit Respondent may have received as a result of the work being performed on Ms. Archer's Blazer. Mr. Bodie's only involvement with the parts was through Mr. Orso, Respondent's supervisor, who told him about the job to be performed on Ms. Archer's vehicle and where to find the parts on Respondent's desk. Petitioner relied upon Mr. Bodie's statement to take action against Respondent and Mr. Orso for the ordering and installation of parts in Ms. Archer's vehicle. Respondent denies that he ordered or was ever asked to order parts that were installed in Ms. Archer's vehicle or any other non-School District owned vehicles. He denies ever ordering parts at the School District's expense and approving or installing them on vehicles not owned by the School District. Based upon Respondent's long work history with Petitioner, as well as his demeanor and candor in responding to questions at the hearing, the undersigned finds Respondent's testimony to be credible. Petitioner's records establish that parts were ordered using one vehicle number and installed in other vehicles owned by the School District. Petitioner's investigation documents establish that parts were not always ordered using the correct vehicle numbers. Respondent acknowledged that the ordering of parts using one vehicle number and installed in another vehicle owned by the School District was done when budget constraints forced a department to reimburse at a later date for services needed right away. Mr. Bryant, as well as other School District employees who looked into Transportation Department practices, expressed concern about this practice. Respondent acknowledged that as a leaderman mechanic, due to the busy work schedule in the garage, sometimes he took other mechanics at their word that the repairs had been performed and he would initial the work orders without a thorough, or even any, inspection of the work performed. Respondent never completed any work documents using the name "Lanny" or ordering any parts directly. Parts were ordered by the Parts Department. Respondent's usual way of initialing repair orders was with "A.M." The preponderance of the evidence presented at the hearing demonstrates that a scheme existed to order parts and perform work on non-District owned vehicles, in this case, a 1988 Chevrolet Blazer owned by one of Petitioner's employees, Ms. Archer. Mr. Bodie performed the repairs on Ms. Archer's vehicle using the parts ordered under the School District's account. Respondent did not knowingly sign repair orders or order parts for repairs on non-District owned vehicles, such as the Blazer owned by Ms. Archer. Prior to the investigation and notice of termination, Respondent had voluntarily entered the Deferred Retirement Option Program (DROP). Once he received notice from Petitioner that his employment would be terminated effective October 17, 2007, Respondent advanced his DROP exit and regular retirement to be effective October 17, 2007.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner, Escambia County School Board, rescind Respondent's termination and compensate him for his lost salary and benefits, including accrued retirement benefits, since the date of his termination on October 17, 2007. DONE AND ENTERED this 6th day of November, 2008, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Tom Wazlavek Union of Escambia ESP 6551 North Palafox Pensacola, Florida 32503 Emily Moore, Esquire Florida Education Association 300 East Park Avenue Tallahassee, Florida 32301-1700 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the demeanor of the witnesses, the following relevant facts are found: At all times pertinent to this proceeding, respondent T.A.S. Auto Sales held independent motor vehicle license #6VI-2652, with a licensed place of business at 117 1/2 Central Avenue in Brandon, Florida. The owner of T.A.S. Auto Sales is Donald Hunt. On May 1, 1985, the Division of Motor Vehicles issued license number 5VI-003620A to T.A.S. Auto Sales for a supplemental location at 312 East Brandon Boulevard in Brandon, Florida. The expiration date on this license was April 30, 1986. Donald Hunt leased the property at 312 East Brand on Boulevard and operated a retail car sales business there until approximately mid-June of 1985. He then decided to sell the business to Clarence W. Jenkins, and entered into an Assignment of Lease on July 1, 1985. According to Mr. Hunt, it was his intent to allow Mr. Jenkins to operate under the supplemental license of T.A.S. Auto Sales while Mr. Jenkins, doing business as Brandon Auto Brokers, obtained his own Florida Dealers License. However, according to Mr. Hunt, said arrangement was to terminate no later than July 28, 1985. A letter setting forth this agreement was received into evidence as respondent's Exhibit 4. From July 1, 1985, through July 28, 1985, Donald Hunt did supervise all title work performed through Brandon Auto Brokers and/or Mr. Jenkins. During July and early August, 1985, Brandon Auto Brokers secured a County occupational license, a Department of Revenue Certificate of Registration to collect sales and use taxes, a reassignment of telephone numbers, an insurance binder, a surety bond and membership in the Florida Independent Automobile Dealers Association. Signage indicating either Brandon Auto Brokers or "under new management" was also placed on the premises, but the date upon which such signage was erected was not established. Lois Jarvis, an inspector with the Division of Motor Vehicles, testified that she spoke on the telephone with Mr. Hunt and Mr. Jenkins on August 9, 1985, and thereafter mailed to Mr. Jenkins an application form for a dealer's license. It was Inspector Jarvis' understanding that Mr. Hunt was allowing Jenkins to operate under Mr. Hunt's supplemental license until such time as Jenkins obtained his own license. On September 4, 1985, she visited the supplemental lot to check on Mr. Jenkins' incomplete application. Her next visit with either Mr. Hunt or Mr. Jenkins occurred on September 23, 1985. At that time, while at Mr. Hunt's lot on Central Avenue, Mr. Hunt informed her that he had nothing more to do with the supplemental lot on Brand on Boulevard, and gave Ms. Jarvis his license for that location. Inspector Jarvis then went over to the supplemental lot and issued a Notice of Violation to Mr. Jenkins/Brandon Auto Brokers for offering, displaying for sale and selling motor vehicles without a license. On September 24, 1985, Ms. Jarvis requested the Department to cancel dealer license 5VI-3620A on the ground that "dealer closed lot and surrendered license." Mrs. Jarvis testified that she did not visit either the supplemental lot or the main lot in July or August of 1985. Her work records for July and August do not reflect a visit to either location. Mr. Hunt, and several witnesses testifying in respondent's behalf, testified that he told Inspector Jarvis in early July that he would have nothing more to do with the supplemental lot beyond July 28, 1985. It was their testimony that Mrs. Jarvis' response was that "there was no way Mr. Jenkins could be issued a license by July 28th, to which Mr. Hunt responded, "that's not my problem." Mr. Hunt admits that he did not specifically request Mrs. Jarvis to cancel his license for the supplemental lot as of July 28th, and that he did not deliver that license to Mrs. Jarvis until September 23, 1985. Based upon the demeanor and possible motives of the witnesses, as well as the documentary evidence received into evidence, it is concluded that Inspector Jarvis did not visit either the supplemental lot or the main lot for which T.A.S. held licenses in June, July or August of 1985. It is further found that Inspector Jarvis did not become aware that Mr. Hunt intended to cease all relationships with the supplemental lot until he delivered the license for those premises to her on September 23, 1985. By statute, an independent motor vehicle license period is from May 1 to April 30 of the following year. Licenses expire annually, "unless revoked or suspended prior to that date." Section 320.27(4), Florida Statutes. The Department has no rule, regulation, policy or established procedure for a licensee to surrender or cancel a license prior to the expiration date. On July 30, 1985, Bruce Reich purchased a 1980 Chevrolet Camero from the Jenkins at the supplemental lot. His checks were made payable to Brandon Auto Brokers. He did not think he was buying a car from T.A.S. or from Don Hunt. On or about September 30, 1985, Mr. Reich filed a Complaint Affidavit against Brandon Auto Brokers regarding this transaction. As of the date of the hearing, Mr. Reich had still not received title to the vehicle he purchased. On August 26, 1985, William S. Ryder purchased a 1981 Van from the Jenkins at the supplemental lot. On or about October 2, 1985, Mr. Ryder filed a Complaint Affidavit against T.A.S. Auto Sales on the ground that he had not received a clear title or plates for this vehicle. He had previously attempted to locate Mr. Jenkins, but was unable to find him.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent be DISMISSED. Respectfully submitted and entered this 31st day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 31st day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0471 The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 8. Rejected; the evidence demonstrates that respondent intended that its responsibilities with regard to the supplemental lot would terminate on July 28, 1985. Respondent 1 - 3. Rejected in part as improper findings of fact. 4 - 9A. Rejected; not supported by competent, substantial evidence. 9H. Accepted, except that the evidence demonstrates that the Ryder complaint named T.A.S. Auto Sales as the dealer. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Michael N. Kavouklis, Esquire 419 West Platt Street Tampa, Florida 33606 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Findings Of Fact Patricia Pyle is the sole owner and proprietor of Automenders, located at 5655 Beaver Street in Jacksonville, Florida. A paint and body shop, Automenders was opened in 1991 by Petitioner. In addition to paint work, Automenders repairs car frames, does rust repair to car bodies, repairs dents in automobiles, and installs headliners and vinyl tops. George Pyle, Petitioner's husband, has 30 years of experience in the automobile repair industry. He owns 50 percent of the land on which the business is located. He receives no rent from the business for use of his interest in the property. Mr. Pyle also does 50 percent of the estimates for work to be done in the shop, and works there approximately 30 to 50 hours per week. He is not paid for any of his efforts by Automenders since he presently draws social security. He does, however, share in the profits of the business. Petitioner and her husband previously operated a paint and body shop business at the same location from 1970 until 1986 when the couple decided to sell the business and retire. In that business, Petitioner was in charge of hiring, firing, keeping the books, doing the payroll and other administrative aspects of the business. The sale of the business in 1986 included the property, the paint and body shop, and an adjacent car lot. The purchasers of the business were unsuccessful in their business endeavors and, in 1991, Petitioner regained control of the property after the purchasers defaulted on their payments. Petitioner provided the start up costs and reopened the present business. There is little difference between Petitioner's present duties and her duties with the business which she and her husband sold. Petitioner is still in charge of administrative aspects of the enterprise. Listed on Automenders' bank account signature card are the names of Petitioner, her husband, and their daughter. Only one signature is required to transact business on the account. Additionally, Petitioner's husband is listed on Automenders' checks, along with Petitioner. Petitioner does not do actual body repair and painting of vehicles herself. While she did occasionally perform some technical tasks in the previous business such as taping and paint mixing, she has no other technical experience and has never received technical training in automobile body repair or painting. Even though she does not know how to run a frame straightening machine or paint cars, Petitioner maintains that she hires qualified employees and relies upon them for the technical aspects of her business. Petitioner's employees, Robert Yonnetti and Jason Sikes, are experienced. Yonnetti has 20 years of experience in the automobile body repair industry and has received training in repair as well as use of frame machines. Sikes has over nine years experience in automobile painting and has received training in automobile painting. Petitioner graduated from high school and attended Montgomery College where she took courses in bookkeeping, accounting and management. Petitioner has failed to provide documentation of training or possession of an expertise in automobile body repair work and painting. Consequently, Petitioner has not demonstrated the technical knowledge and capability necessary to maintain control of the technical aspects of the enterprise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Automenders application for certification as an MBE. DONE and ENTERED in Tallahassee, Florida, this 22nd day of March, 1995. DON W. DAVIS 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 March, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Petitioner submitted a four page letter containing 10 unnumbered paragraphs. The letter has been reviewed and to the extent possible addressed by the foregoing findings of fact. Respondent's Proposed Findings 1.-20. Accepted, but not verbatim. COPIES FURNISHED: Patricia Pyle 5655 West Beaver Street Jacksonville, FL 32254 Ana Cristina Martinez Assistant Attorney General The Capitol - Suite PL - 01 Tallahassee, FL 32399-1050 Crandall Jones Executive Administrator Knight Building 2727 Centerview Drive Tallahassee, FL 32399-0950
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to the issues herein, petitioner Davis was an automotive equipment repair foreman at respondent's Pinellas County Maintenance plant. In addition to this employment, petitioner also had a pecuniary interest in the Sunshine Speedway in St. Petersburg. A steel pole was located on private property belonging to Sunshine Speedway. Because persons and/or vehicles had been injured by this pole, petitioner and a heavy equipment operator employed by respondent decided to remove it. They went to respondent's maintenance yard at 6:30 or 7:00 p.m. after their hours of employment, got a crane truck belonging to respondent, drove it to the Speedway, removed the steel pole to another area and returned the truck to the maintenance yard after dark. Petitioner neither asked for nor received permission to use respondent's equipment for this purpose. At a time when petitioner was leasing the Sunshine Speedway, and during his hours of employment with respondent, he filled a dump truck belonging to respondent with limerock or scrap materials. After his hours of employment with respondent, petitioner drove this truck to the Speedway and dumped its contents near the entranceway for the purpose of making a culvert or crossover. While there was some evidence that petitioner had the permission of his immediate supervisor, Mr. William Dasher, to use the respondent's scrap culvert material, petitioner admitted that no one gave him the authority to improve the entranceway to the Speedway or to use the respondent's truck for this purpose. As a result of the facts described in paragraphs 2 and 3 above, respondent found that petitioner had violated state rules and regulations and departmental policies with regard to the unauthorized use of state equipment outside of his regular assigned duties and responsibilities and for other than state purposes. The disciplinary action taken was demotion of petitioner from automotive equipment repair foreman at Pinellas Maintenance to automotive equipment mechanic II and reassignment to Tampa Maintenance. Petitioner thereafter appealed this disciplinary demotion and reassignment to the Career Service Commission. The matter was referred to the Division of Administrative Hearings for hearing, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Commission affirm the demotion and reassignment of petitioner inasmuch as the same was based upon good cause and was in accordance with established rules and regulations. Respectfully submitted and entered this 23rd day of May, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Horace E. Davis Post Office Box 375 Pinellas Park, Florida 33565 Mrs. Dorothy Roberts Appeals Coordinator Phillip Bennett, Esquire Department of Administration Department of Transportation Room 530 Carlton Building Haydon Burns Building Tallahassee, Florida 32304 Tallahassee, Florida 32304
Findings Of Fact The Petitioner, Tony Meehan's Auto Repair, Inc., is a Florida corporation doing business as Burnie's Auto Service. Essentially, it is the family business of a man and woman who are husband and wife, Anthony and Cheryl Meehan. Before moving to Florida to begin doing business as Burnie's Auto Service, the Meehans lived in New Jersey. In New Jersey, Anthony Meehan worked as an auto mechanic for approximately 15 years. He is an ASE-certified master mechanic and also holds several other auto mechanic and repair competency certifications. Prior to leaving New Jersey, he was half owner of a small auto repair business. He and his partner did all of the work in the two-bay shop. Over the years, he built up a $15,000 equity in the business. In addition, he had an auto repair manual worth about $30, which he planned to contribute to the new business, and he had his own personal tool box worth about $10,000 to $15,000, which he planned to use in connection with the operation of the business. Cheryl Meehan was not in the auto repair business in New Jersey. She worked for several different employers in an office administrator capacity. In her most responsible position, she essentially reported to a business executive daily and received daily assignments. During her employment, the company grew. Cheryl was exposed to, and gained valuable experience, in several areas of bookkeeping, accounting, banking, finance and personnel matters. Burnie's Auto Service was a relatively large ongoing auto repair business in Tampa, Florida. It had five employees and 14 work bays. In approximately September, 1989, the Meehans negotiated to buy the business for $275,000, $50,000 down and the balance amortized over a period of years at ten percent interest. The seller took back a purchase money mortgage on the business property to secure payment of the balance. Both of the Meehans are liable, jointly and severally, on the note and mortgage to the seller. The Meehans used the $15,000 Tony got for the sale of his interest in his New Jersey auto repair business as part of the down payment. In addition, they used a certificate of deposit in the amount of approximately $30,000. The CD had been obtained by use of funds that had been paid to Cheryl before their marriage as a result of a personal injury lawsuit. It is not clear whether the CD was held solely in Cheryl's name or in the names of both of the Meehans. In addition, $10,000 from the sale of Cheryl's automobile also went towards the purchase of the business. It was not clear from the evidence whether the automobile was titled in the name of Cheryl only, or in the name of both of the Meehans. Nor is it clear whether the automobile was purchased by Cheryl before the marriage. The purchase of the business was to close in November, 1989, but the closing was postponed to January, 1990. The Meehans incorporated Tony Meehan's Auto Repair, Inc., as a Florida corporation on or about December 20, 1989. The Meehans were named as the sole members of the initial board of directors of the corporation. The Meehans moved to Tampa on Christmas day, 1989. The initial meeting of the board of directors of Tony Meehan's Auto Repair, Inc., was held on December 28, 1989. At the meeting, the Meehans were confirmed as the sole members of the board of directors. Tony was named chairman of the board, and Cheryl was named secretary. 500 shares of stock were issued, all to "Anthony R. Meehan and Cheryl A. Meehan, husband and wife." In addition, Tony was made president of the corporation, and Cheryl was made secretary/treasurer. When the Meehans took over the business, they decided to keep the shop foreman, master mechanic and two auto mechanics already employed there. They decided to use suppliers Tony had used when he was in business in New Jersey. They decided to contract out towing and transmission service to companies in Land O' Lakes, Florida. These were joint decisions based in large part on Tony's expertise. Cheryl has practically no training or experience in auto mechanics or auto repairs. She has no auto mechanic certifications. She has only recently begun to learn something about auto mechanics and about how to do certain auto repairs. Hiring and firing continued to be joint decisions made by the two of them. To the extent that they were made based on an evaluation of the employee's skills in auto mechanics, they were based in large part on Tony's expertise. Since the beginning of the business, they have had to fire one employee, and they have hired two. Tony's primary role in the daily operations of the business is to generally supervise the quality and efficiency of the auto repair work. He also sometimes diagnoses (or helps diagnose) mechanical problems, directs (or helps direct) the performance of repairs, and test drives vehicles after repairs are done. In connection with these functions, he sometimes orders (or directs the ordering of) parts. Sometimes, he will estimate repair costs. Cheryl is the office administrator for the business. In this role, she handles all bookkeeping, accounting, banking, payroll and personnel matter details. She often bills jobs and operates the business cash register. She physically places orders for parts, at the direction of Tony or the employees, and pays for them. She generally will not countermand a parts order but may ask her husband or, if he is not there, the master mechanic to verify an order if she questions it. She makes sure parts get billed. As she became more familiar with the auto repair business, she began to estimate some jobs by reference to standard estimates manuals and was able to say which parts would have to be ordered for some jobs. The corporation opened a business bank account with a local bank. Both Cheryl and Tony have signature authority on the account. Cheryl writes virtually all checks on the account and does all the banking. Tony only writes a check on the account on the rare occasions when Cheryl is not available when one has to be written. Initially, the Meehans decided that Tony would be paid approximately $700 a week and that Cheryl would be paid approximately $300 to $350 a week. Tony did not have as much Social Security credit as Cheryl from their work in New Jersey, and they wanted to try to equalize their credits. Otherwise, as a practical matter, the relative size of their salaries did not matter to the Meehans. Cheryl deposited both checks into their joint personal bank account for the use of both of them, as needed. The business pays for a $200,000 whole life insurance policy on the life of Cheryl, and one on the life of Tony. It is not clear from the evidence who are the beneficiaries under those policies. The business also pays for a $2 million major medical insurance policy for Cheryl, and one for Tony. As the business continued, Cheryl assumed increasing duties and responsibilities, and Tony assumed fewer. Cheryl worked harder, and Tony worked less. Also, Cheryl's mother persuaded Cheryl that she should have a greater share of the equity in the business to reflect her greater initial financial contribution. Tony agreed. In January, 1991, additional stock in the company was issued. 135 shares went to Cheryl and 65 went to Tony. No changes were made in the constitution of the board of directors or in the officers of the corporation at that time. Tony Meehan's Auto Repair, Inc., d/b/a Burnie's Auto Service, applied to the Department 3/ for certification as a minority business enterprise on or about May 13, 1992. By letter dated September 16, 1992, the Department denied the application. The denial was based, in part, on the Department's determinations (1) that Cheryl's compensation was not commensurate with her ownership interest in the business and (2) that minorities (i.e., Cheryl) did not make up more than 50 percent of the board of directors. In reaction to the denial letter, and to improve their company's chances of being certified as a minority business enterprise, the Meehans decided to alter their respective salaries. Starting no earlier than December, 1992, Cheryl has been paid $725 a week, and Tony has been paid $450 a week. As before, as a practical matter, except for the Social Security credit, the relative size of their salaries does not matter to the Meehans. Cheryl deposits both checks into their joint personal bank account for the use of both of them, as needed. Also in reaction to the denial letter, and to improve their company's chances of being certified as a minority business enterprise, the Meehans met as the board of directors on or about March 18, 1993, to change the constitution of the board of directors and to change the officers of the corporation. They made Cheryl the chairman and sole member of the board of directors, and the president of the corporation. They made Tony the vice-president, secretary, and treasurer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Management Services enter a final order denying the application of Tony Meehan's Auto Repair, Inc., d/b/a Burnie's Auto Service, for certification as a minority business enterprise. RECOMMENDED this 13th day of May, 1993, 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 13th day of May, 1993.
