Findings Of Fact J.D. Bligh Construction, Inc. (Petitioner), was incorporated and began doing business on or about February 18, 1974. Petitioner engaged in the construction business; erecting, repairing and remodeling buildings and structures; and performing public works. The majority of Petitioner's work is subcontracted out. At Petitioner's inception, Jack D. Bligh and his wife, Carol E. Bligh, were co-owners with each possessing 50 percent of the stock in the business. Jack Bligh was the President and the only Director. Petitioner was started as a family business. At all times material hereto, Jack Bligh was licensed as a certified Management contractor by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Petitioner is authorized by the State of Florida to engage in the construction business under his license. Petitioner had no employees other than Jack and Carol Bligh and subcontracted out work for which contracts were awarded or agreements entered into. All proposals for work and contract agreements on behalf of Petitioner were accepted and executed by Jack Bligh. Jack Bligh was the guarantor on behalf of Petitioner. For example, he was the guarantor for Petitioner's lease agreement for the site location of its business, dated June 15, 1988. Carol Bligh's duties with Petitioner were clerical and administrative, such as determining draw requests, ordering supplies and banking. She had no experience in the construction industry whether it was Management contracting or actual field experience. Jack Bligh, her husband, was responsible for the actual running of the business and handling the day-to-day operations of the business, such as contracting, estimating, bidding and hiring and firing subcontractors. On or about August 22, 1985, Jack and Carol Bligh formed J. D. Bligh Airport Construction, Inc., with Jack Bligh as the sole director and President, owning 49 percent of the stock, and Carol Bligh as Secretary, owning 51 percent of the stock. It was a wholly owned subsidiary and formed on the advice of their insurance agent and accountant for liability insurance purposes regarding a contract for work at the Fort Lauderdale International Airport, which at that time was a big project for Jack and Carol Bligh. In September 1988, Petitioner, as contractor, contracted with the Boca Raton Airport, Inc., d/b/a Boca Aviation to perform work at the airport at a cost of approximately $533,000. The subsidiary corporation, J. D. Bligh Airport Construction, Inc., was not used for this job. In July 1990, Petitioner entered into a contract as subcontractor to perform work at the Opa-Locka Airport at a cost of approximately $65,000. The subsidiary, J. D. Bligh Airport Construction, Inc., was also not used for this job. On or about August 8, 1990, J. D. Bligh Airport Construction, Inc., was changed to J. D. Bligh Caribbean Construction, Inc. The purpose of the name change was again for liability insurance purposes in order to perform work in St. Thomas, U.S. Virgin Islands. The Blighs were rebuilding apartments damaged by Hurricane Hugo. Also, in September 1992, Petitioner again contracted with Boca Raton Airport to perform work at a cost of approximately $272,000. Carol Bligh executed the contract and the performance bond. For 17 years, Jack Bligh remained Petitioner's President until on or about January 15, 1991, at which time Carol Bligh became President. She was gratuitously given additional stock in the business by her husband for her long years of service and dedication to Petitioner. With this additional stock, Carol Bligh also became the minority/majority stockholder. When Carol Bligh became President of Petitioner and minority/majority owner with 51 percent in January 1991, her main duties and responsibilities did not change. She continued with the clerical and administrative aspect of Petitioner's Management contracting business. However, her duties and responsibilities also expanded to include dealing with bonding, securing lines of credit and insurance, setting-up workers compensation, assisting in policy- making, financial planning and operational procedures, and contract negotiations. On or about October 3, 1991, Carol Bligh's duties and responsibilities relating to hiring and firing were officially increased by Petitioner's directors to include hiring and firing of all personnel, including office and field personnel. In 1990, Carol and Jack Bligh's daughter, Janice Bligh, joined the business. Using his more than 17 years experience in the construction business, Jack Bligh began training her in Petitioner's contracting business, which included taking her to job sites for observation of the work being performed. Around mid-1991, Janice Bligh was placed in control of field supervision, estimating and bidding. For the past year and a half, Jack Bligh performed these functions only when she was unable to do so. Janice Bligh received her training as a field supervisor from her father, Jack Bligh, through observing him and the subcontractors. His supervision extends over the subcontractors since the majority of Petitioner's work is subcontracted out. Janice Bligh is taking courses in contracting and has completed three; one in estimating, one in plan reading and one in the South Florida Building Code. She is not currently licensed in the construction industry but eventually wants to take the State licensing examination to become a Management contractor but that is 2 1/2 to 3 years away. She has limited knowledge of the statutory requirements placed upon a Management contractor in terms of authorized scope of work and required liability coverage. Since Carol Bligh became Petitioner's President, proposals and agreements or contracts have been signed by either Janice Bligh or Carol Bligh. Also, bonding documents have been signed by Carol Bligh. Authorized signers and users on Petitioner's bank account are Carol, Jack and Janice Bligh, individually, with either one of them being authorized to execute bank documents on behalf of Petitioner. When Petitioner needed funds for operating expenses, they came from Carol and Jack Bligh. A promissory note dated April 15, 1992, from Petitioner to Carol Bligh was signed by Carol Bligh, as President, and came from funds in Carol and Jack Bligh's joint account. However, another promissory note dated June 30, 1992, involved funds loaned to the businesses from a business owned by Jack Bligh's father. Additionally, a promissory note dated April 15, 1993, was from Petitioner to Carol and Jack Bligh, equally. On or about December 1, 1992, Janice Bligh became a shareholder and officer of Petitioner's business, acquiring 2 percent of the stock from Jack Bligh, thereby leaving him with 47 percent of the stock. Carol Bligh retained 51 percent of the stock. Even though Janice Bligh was a shareholder and part owner of Petitioner, an indemnity agreement with a bonding surety dated February 23, 1993, was signed by Carol and Jack Bligh only. Also, the agreement reflected no differentiation of liability. As to wages, Petitioner's quarterly wage report dated April 17, 1991, reflects Jack Bligh's salary as $3,650, Carol Bligh's salary as $7,250, Janice Bligh's salary as $5,200, Jill Bligh's salary as $1,209 and Lawrence Massey's salary as $4,093.76. Jill Bligh is another daughter of Carol and Jack Bligh. She performs office work, run errands and answers the telephone. She is neither an officer nor a director. Petitioner's quarterly wage report dated July 12, 1991, reflects Jack Bligh's salary as $650, Carol Bligh's salary as $650, Janice Bligh's salary as $5,200, Jill Bligh's salary as $1,698 and Lawrence Massey's salary as $1,593.77. Petitioner's quarterly wage report dated October 15, 1991, reflects Jack Bligh's salary as $440, Carol Bligh's salary as $600, Janice Bligh's salary as $5,200 and Jill Bligh's salary as $1,804.50. Petitioner's quarterly wage report dated January 27, 1992, reflects Jack Bligh's salary as $390, Carol Bligh's salary as $300, Janice Bligh's salary as $2,400 and Jill Bligh's salary as $1,522.50. Carol Bligh testified that she and Jack Bligh reduced their salary to aid the business economically in the bad economic times of the construction industry. However, her testimony is not credible in light of the salary paid their daughter Jill Bligh in relationship to the work she performed. Petitioner applied for certification by Respondent as a minority business enterprise (MBE) on March 24, 1992. An initial review of the documentation provided by Petitioner indicated that Petitioner did not meet the criteria for MBE status; however, questions remained so a telephone interview with Carol Bligh was held in July 1992. Based on the documentation provided and the telephone interview, Petitioner was denied MBE status and notified by certified letter, dated July 14, 1992. Petitioner has been certified as a MBE by local governments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a Final Order denying J. D. Bligh Construction, Inc., certification as a Minority Business Enterprise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of February 1994. 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 21st day of February 1994.
Findings Of Fact The name Zorba's Restaurant and Lounge has been continuously used by the Petitioner or its predecessors in business as the name of a restaurant and lounge located at 504-508-510 Athens Street, Tarpon Springs, Florida, for a period of over ten years. Kaliope Padides was at one time director of a corporation named Zorba Lounge, Inc. which originally owned and operated the aforementioned business. In 1975 this business was sold and the corporation, Zorba Lounge, Inc. was dissolved involuntarily on November 14, 1975. The purchaser was required to continue using the name Zorba Restaurant and Lounge. Two or three years thereafter, the brother-in-law of Kaliope Padides, Peter Padides, bought the business and operated it as a sole proprietorship until December, 1982. At that time, the business burned and Peter asked Kaliope and her husband, Nicholas, to assist him in operating the business. They elected to form a corporation and instructed their attorney to reserve the name Zorba's. On December 23, 1982, counsel for Anthanasios and Linda Maillis sent a letter to the Division of Corporations, State of Florida, reserving the name Zorba's Restaurant and Lounge, Inc. The Maillises had instructed their counsel to reserve the name Zorba's Restaurant and Lounge, Inc. although they were aware of the business operated by Peter Padides, because they thought the name Zorba's Restaurant and Lounge, Inc. was not protected. On December 27, 1982, counsel for Kaliope, Nicholas and Peter Padides sent a letter to the Division of Corporations, State of Florida, reserving the name Zorba, Inc. On December 27, 1982, the Division of Corporations, State of Florida, reserved the name Zorba's Restaurant and Lounge, Inc. and Zorba, Inc. and forwarded to the respective parties confirmation of said name reservations. On January 4, 1953, the Articles of Corporation for Zorba, Inc. were filed and sealed by the Secretary of State, State of Florida on January 13, 1983. On January 6, 1983, the Articles of Corporation for Zorba's Restaurant and Lounge, Inc. were filed and sealed by the Secretary of State, State of Florida on January 10, 1983. The Maillises reserved the name and incorporated in the name Zorba's Restaurant and Lounge, Inc. knowing the existence of the business operating in the name of Zorba's Restaurant and Lounge and with the intent to capitalize on the use of that name in operating a similar business located in the same geographic area. The reservation of this name was made in bad faith, and for the purpose of engaging in unfair competition.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that the Respondent's name of Zorba's Restaurant and Lounge, Inc. be rejected and its reservation of the name revoked. DONE and ORDERED this 28th day of April, 1983, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1983. COPIES FURNISHED: John G. Fatolitis, Esq. One North Pinellas Avenue Tarpon Springs, Florida 33589 Edwardo R. Latour, Esq. Yanchuck, Thompson & Young, P.A. 1100 South Pinellas Avenue Tarpon Springs, Florida 33589 William G. Stevens, III, Esq. Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 Honorable George Firestone Department of State The Capitol Tallahassee, Florida 32301
The Issue The primary issue in this proceeding is whether Gulf Coast is entitled to certification as a disadvantaged business enterprise under DOT rule 14-78.05 Florida Administrative Code. Ancillary issues include 1) the sufficiency of proof of Bernard Crooke's membership in a designated group, (i.e. "Hispanic Americans"); and 2) the criteria, if any, that DOT may utilize, other than an individual's membership in a designated group, to determine eligibility of that individual's firm for certification.
Findings Of Fact Gulf Coast and Traffic Engineers, Inc. is a Florida corporation with its principal place of business in Escambia County, Florida. Its address is 8203 Kipling Street, Pensacola, Florida, 32513. (Stipulation of the parties: Petitioner's Exhibit #la, tab 2) Gulf Coast is a "small business concern" as required by Rule 14-78.05, Florida Administrative Code. (Stipulation of the parties). The Florida Department of Transportation receives federal highway funds and administers the program for certification of disadvantaged business enterprises. (T-6,92) Bernard E. Crooke is President of Gulf Coast and sixty- percent owner. He directs the management policies and operations of Gulf Coast. (Stipulation of the parties; Petitioner's Exhibit la, tab 2) Cameron Villar is a remote blood relative of Bernard E. Crooke. He and a cousin did some genealogical research on the Villar family history. He obtained a list of names of genealogical societies in Spain from the American embassy in Madrid. After contacting all the societies on the list, he retained one, and obtained from it a picture of the Villar family crest and a brief history of the family name. The Villars originated in Galicia, Spain. Cameron Villar also prepared a genealogical chart tracing his family (and Bernard Crooke's) back to one of two brothers who came from Spain to the United States. The brothers, Augustus and Emmanuel, were sons of Don Jose de Villar, who is mentioned in the family history provided by the genealogical society. (T-22-24, 30-35; Petitioner's Exhibits #2-#5) Paula Margaret Davidson is related to Bernard Crooke through a common great grandmother. She has known Bernard and his family all her life. She also conducted genealogical research and prepared a chart tracing the family back to Spain. (T-45, 6, Petitioner's Exhibit #6) Joseph Davidson (known as "Buddy" Davidson) was raised by Bernard Crooke's aunt, whom "Buddy's" father married after his first wife died. It was common knowledge in the family and in the Pensacola community that the Villars, including the branch in which "Buddy" and Bernard were raised, were of Spanish heritage. There was a community of Spanish harbor pilots in the Old Warrington Woolsey area. Later the city of Warrington was displaced and was moved to New Warrington. (T-71, 74-75) Bernard's grandfather was one of the bar and harbor pilots. (T-56). The Villar family and its various branches celebrated the Bicentennial with their first family reunion. Seven hundred and fifty members participated, including Bernard Crooke. The family was recognized as playing a significant part in the founding of Pensacola, as the two Villar brothers sailed into Pensacola with General Galvez and received land there as a reward from the King of Spain and as an incentive to create a Spanish colony in Pensacola. A booklet was published for the Bicentennial celebration, "Your Heritage," based upon the research of the family members. (T-64, 83, Petitioner's Exhibit #11). Until the Bicentennial in 1975-76, and the resultant public recognition of the family, being Spanish was not a subject of pride and there was concern about discrimination in the community. ( T- 6 9, 77, 82). Neither Bernard Crooke, nor any of the family members who testified on his behalf, could say for certain whether, as an individual, Bernard Crooke was the subject of bias or discrimination by virtue of his Hispanic cultural heritage. (T- 50, 53, 69, 73, 83). Bernard Crooke was one of nine children in a poor family. He started his construction business approximately twenty years ago with five hundred dollars and two partners. He helped support his business in the early days by delivering papers to rack stands. He put himself through Pensacola Junior College and obtained no further formal education. He eventually bought out the two partners who had other interests and were just helping him get started. (T-80-85). The business has gradually grown to one with gross annual receipts (year ending 9/30/84) of $1,761,117.37. (Petitioner's Exhibits #la, tab 2).
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a Final Order be issued finding Petitioner, Gulf Coast, eligible for certification as a Disadvantaged Business Enterprise (DBE). DONE and RECOMMENDED this 3rd day of June, 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1986. APPENDIX The following constitute my specific rulings pursuant to section 120.59(2), Florida Statutes on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Petitioner's Proposed Findings of Fact Adopted in Paragraphs #1 and #3. Addressed in Background; otherwise rejected as unnecessary. Adopted in substance in Paragraph #11. Adopted in Paragraphs #3-6. Adopted in substance in Paragraphs #3-7. Rejected as unnecessary. Discussion of criteria for certification is found in the Conclusions of Law. Adopted in Conclusions of Law, Paragraph #10. Adopted in Conclusions of Law, Paragraph #10. Rejected as unnecessary. Rulings on Respondent's Proposed Findings of Fact Rejected as unnecessary. Adopted in Paragraph #1. Addressed in Background. Rejected as summary of evidence rather than a finding of fact. Adopted in part in Paragraph #4. The statement that Mr. Villar is not a genealogist is rejected as unsupported by the record. Adopted in part in Paragraph #4; otherwise rejected as immaterial. Rejected as immaterial, except that the Villar Spanish origins are addressed in paragraphs #4 and #7. Adopted in part in Paragraph #5, otherwise rejected as immaterial. Rejected as contrary to the weight of evidence. Adopted in Paragraph #10. Rejected as being immaterial since Petitioner has also been denied loans. See Conclusion of Law, Paragraph #9. Rejected as unnecessary and while an accurate restatement of an isolated portion of testimony, the out-of-context testimony does not reflect the substantial weight of the evidence. See Conclusion of Law, Paragraph #9. COPIES FURNISHED: Charles C. Sherrill, Esquire 435 East Government Street Post Office Box 12316 Pensacola, Florida 32581 Brant Hargrove, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32301
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
Findings Of Fact Petitioner, Jim Neel & Associates, Inc., a Florida corporation, applied to the Department of Transportation (DOT) for certification as a Disadvantaged Business Enterprise. The majority stockholder of Jim Neel & Associates, Inc., is Jim Silver Eagle Neel. On his mother's side Jim Neel is a direct descendant of Creek Indians Who were enrolled in the 1832 Census for that Tribe. Additionally, his father's family is known to be descended from the Cherokee Tribe. In terms of blood lines it is estimated that Mr. Neel is one-quarter American Indian. However, Mr. Neel has the features of a Native American. However, Mr. Neel has actively participated in the activities of the Lower Creek Muskogee Tribe since the beginning of 1986. 1/ He is considered by the National and local Creek Indian Tribes to be a member of their group. Additionally, Petitioner has been recognized by the federal Bureau of Indian Affairs as being a member of the Creek Indian Tribe. Such recognition enables Petitioner to participate in the Eastern Creek Judgment Fund which was awarded against the federal government for treaty violations to members of the Eastern Creek Tribe. Prior to the beginning of 1986, Mr. Neel did not maintain any direct affiliation with a tribe. To the best of his knowledge, his mother did not maintain any direct affiliation with a tribe. However, the evidence did show his mother kept in contact with local Creeks on an informal basis. Additionally, when Mr. Neel was young, his mother would tell him stories about his Indian heritage, but advise him not to reveal the fact of his Indian heritage to others. When Mr. Neel was growing up it was not wise to declare one's Indian heritage due to the racial prejudice which would be inflicted on that individual. In fact, Mr. Neel did not feel he could freely declare his heritage until about ten years ago. Mr. Neel was raised on a poor rural farm in northwest Florida. His mother, due to her Indian heritage, was uneducated. She could not read or write and, therefore could not obtain above menial wages to support her family. The entire family, including Petitioner, existed under an economic as well as social disadvantage. Through sheer determination, Petitioner literally pulled himself up by his own bootstraps. Around 1948 he became an auto/truck mechanic. Around 1955 he began as a service manager for an Oldsmobile dealer. Because the wages of a mechanic were low at that time, Mr. Neel changed careers and joined the Panama City Police force. He was a city police officer for the next fifteen years. In 1972 he was employed by the Panama City Airport Authority as a security officer. He rose by promotion to become the Airport Manager from 1980 through 1987. At present he is a consultant to the Airport Authority. No evidence was presented by the Department which would be sufficient to demonstrate that Mr. Neel had not suffered social and economic disadvantage on an individual basis.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered granting the application of Jim Neel and Associates, Inc. for certification as a Disadvantaged Business Enterprise. DONE and ENTERED this 19th day of April, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 19th day of April, 1989.
Findings Of Fact At all times pertinent to the matters concerned herein, either the Department of Management Services, or its successor, the Commission of Minority Economic and Business Development, was the state agency in Florida responsible for certification of Minority Business Enterprises in this state. Johnston was started by Mrs. Cloversettle's grandfather and operated by him and his three sons, including Conrad Johnston, Mrs. Cloversettle's father, for many years. As a child and young woman, Mrs. Cloversettle worked at the place of business in differing capacities and learned something of the business operation. At some point in time, she married Mr. Cloversettle who was and has been an employee of the firm, and over the years, he operated much of the equipment used in the business. Mrs. Cloversettle is also a licensed cosmetologist, and owns and operates a beauty salon through a corporation she owns with her husband. He does much of the handyman work at that shop and she works, part time, as a cosmetologist. Most of her time, however, is occupied with the affairs of Johnston. There are currently 60 shares of common stock issued in Johnston Lithograph & Engraving, Inc.. Seven and three quarters shares are owned by Mr. and Mrs. Cloversettle. Three and three-quarters shares came from her father, and she acquired four additional shares at the time she bought the business. Three and three quarters shares are owned by Mrs. Cloversettle's aunt, Ms. Sims, who lives in North Carolina; fifteen shares are held in the name of her father, Conrad Johnston; and eighteen and three-quarters shares each are held by his two brothers, Bert and Don. Ms. Sims takes no income from Johnston, does not participate in the management of the company, and plays no role in it other than as share owner. At one point, Mr. Cloversettle owned a one-half interest in the four shares his wife got at the time of purchase, but she considered herself the owner in that they were titled jointly only "for simplicity", just as the house and their bank accounts are also owned jointly. On April 26, 1994, after the initial denial of Petitioner's application for MBE certification, the joint ownership was terminated and the shares registered in Ms. Cloversettle's name only without any exchange of consideration therefor. Much the same pertains to the company bank accounts. Before the denial, both George and Brenda Cloversettle could sign company checks. Since then, however, George Cloversettle has been removed as an authorized signatory on company accounts. The shares owned by Ms. Cloversettle's father and his brothers, Donald, Bertram, are presently held as "security" for the payment of the purchase of Johnston by Mrs. Cloversettle. The shares are not voted and are held in escrow under an escrow agreement. A stock pledge agreement, dated February 7, 1986, to which the Cloversettles were not parties, produced after the hearing, pertains only to the corporation and Conrad and Margaret Johnston. Its terms, somewhat confusing, can best be interpreted as providing that upon default in payment, the stock held in escrow would revert to the original holder as titled on the face of the certificate or, at the option of the original owner, be sold. At the time of denial, the shares owned by Donald and Bertram had not been properly endorsed into the escrow but this was done prior to formal hearing when, by affidavit dated August 1, 1994, the escrow agent indicated both Donald's and Bertram's shares were subject to the 1986 escrow agreement. The 1986 agreement prohibits the issuance of any new or additional shares of stock until the purchase obligation is paid off. This provision may have been violated when the four additional shares were issued to the Cloversettles in 1990. The shares owned by both Bertram and Donald were the subject of a stock sale agreement for $93,000.00 for each block of eighteen and three-quarters shares. Both the date of the agreement and the signatures of the parties are not evidenced on the documents, however, but it appears Bertram deposited fifteen of his shares with the Tampa 1st National Bank in 1975, some fifteen years prior to the Cloversettle's 1990 purchase of the company. Conrad Johnston entered into a purchase agreement in 1985 with the original owners which did not include the Cloversettles. His fifteen shares were signed into escrow on February 6, 1986. These discrepancies in capital ownership were not clarified at hearing. Mr. and Mrs. Cloversettle entered into the agreement to buy the company from the Johnstons in 1990 for a purchase price of $300,000. Though in an earlier deposition, Mrs. Cloversettle indicated only about $3,000 of the purchase price had been paid, which money allegedly came from the proceeds of an insurance policy loan and a mortgage on their home, at hearing, she testified $30,000 had been paid, all of which came from the mortgage on their home. No payments on the obligation are currently being made by the Cloversettles because each of the original owners executed an agreement deferring payment until the company is financially able to make regular payments. The minutes of a special shareholder's meeting held on July 8, 1994, reflect the above-noted Johnston brothers' certificates were surrendered for cancellation in July, 1990. However, the minutes also note that the sale and redemption of the certificates was subject to an escrow pursuant to the February, 1986 escrow agreement which, in November, 1993, was affixed to an amended agreement naming Edward Hill as Escrow Agent, which referred to the Johnston brothers not as stockholders but as secured creditors. Because of the complex manipulation of the shares and their status, it is impossible to determine the relative ownership of the parties. Petitioner has not established with any degree of clarity that Brenda Cloversettle, though a minority owner, has actual and real ownership of at least 51 percent of the company equity free of any residuary or reversionary interest which could divest her of her 51 percent ownership. The shares covered by the escrow agreement, while classified by Petitioners as treasury stock, cannot legitimately be so considered since it is still in the name of the original owners and does not become property of the company until the obligation incurred for its purchase is satisfied. While, as noted previously, no additional payments have been made on the purchase price, the company maintains a life insurance policy on each Johnston which Ms. Cloversettle indicates is to be used to pay off the outstanding debt upon their respective deaths. She admits however, there is no document requiring the insurance proceeds to be used that way, and no independent evidence of the policies' existence was forthcoming. The primary business of Johnston is commercial printing/graphics. Ms. Cloversettle is the sole director of the corporation whose bylaws, as of July 8, 1994, require all directors to be minority persons. She has asserted, and it was not disproved by evidence to the contrary, that she has the primary role in decision-making concerning the company's business transactions and she is the sole person required to execute any transaction related documents. She has final authority as to all corporate decisions and is not required to consult with anyone else when corporate decisions are being made, though she may do so. Johnston does not keep inventory on hand but purchases supplies necessary on a job driven basis. According to Ms. Cloversettle, she controls the purchase of inventory and determines the need and appropriateness of equipment rentals or purchases. She seems to be familiar with and to understand the use of the products utilized by the company in its daily operations. She has a fundamental knowledge of the equipment used in the company's operation and, though she may not be fully qualified to operate every piece, can operate some of it. Though she periodically consults with her husband regarding business operations, she is not required to do so and has the responsibility for the hiring and management of employees. She alleges she sets employment policies, wages, benefits, and employments conditions at the company without the need to coordinate her actions with anyone. However, in a phone interview with the Department's representative, in February, 1994, Ms. Cloversettle had difficulty correctly answering many of the technical questions she was asked at hearing. Mr. Cloversettle, who has worked with the firm for approximately twenty years, is its key employee in computer graphics and serves as production manager and vice-president. Without doubt, along with Mr. Ezell, the firm's printer, he is primarily responsible for the daily plant operations, supervising the other employees, planning daily work flow, and insuring the vendors who supply the needed raw materials do so in a timely fashion. Ms. Cloversettle is college trained and, as noted previously, a licensed cosmetologist. She has done bookkeeping for the firm and acted as office manager, but has no formal training in printing, or graphics, other than years of observation as she grew up with the operation when it was operated by her father. Her primary hands-on experience is in book bindery and shop cleaning but she can run some of the smaller, less exotic equipment. She is not familiar with all the terms and duties involved in the operation of this business and could not accomplish them all. She acknowledges she spends most of her time in the office. She claims to be solely responsible for the financial affairs of the company and is the only one currently authorized to sign company checks. This situation, as has been noted, is of but recent origin, however. Nonetheless, Mr. Cloversettle continues to remain subject to equal debt responsibility with Ms. Cloversettle because of his prior co-signing of risk documents relative to loans taken by the company prior to the application, denial and hearing. Ms. Cloversettle's testimony regarding her method of evaluating the company's ability to perform potential jobs creates the impression that she is aware of the company's limitations and its abilities. She does not run the cameras or the presses and she need not do so. She does not solicit business but she hires a salesperson to do so and has the authority and capability to evaluate and accept or reject the work brought in. In the last two quarters of 1993, according to company payroll records, Mr. Cloversettle was paid approximately $6,426.00 while Ms. Cloversettle was paid only $2,650.00. However, after the application was denied, the ratio was changed dramatically to where she now earns $180.00 per week, and he, only $52.95.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Johnston Lithograph & Engraving, Inc.'s request for certification as a minority business enterprise. RECOMMENDED this 15th day of September, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 15th day of September, 1994. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. Accepted as to the shares of Ms. Cloversettle and Ms. Sims. However, this does not indicate acceptance of the proposition that there are no other shareholders, or that the transfer of shares from Mr. Cloversettle to his wife was bona fide. 4. Accepted and incorporated herein. 5. Accepted and incorporated herein. 6. Accepted. However, as noted in the body of the Recommended Order, it is impossible to clearly define the actual status of the brothers' and father's retained shares or whether they have the potential to dilute Ms. Cloversettle's shares. 7. Accepted and incorporated herein. 8. Not proven. 9. Not proven. 10. - 12. Accepted, but based entirely on unsupported testimony of Ms. Cloversettle. 13. & 14. Accepted and incorporated herein. 15. - 18. Accepted, but based entirely on unsupported testimony of Ms. Cloversettle. 19. & 20. Accepted and incorporated herein. 21. Accepted as a restatement of testimony. 22. & 23. Accepted. 24. Accepted as a restatement of testimony. 25. Not an appropriate Finding of Fact but a comment on the evidence. 26. & 27. Accepted and incorporated herein. FOR THE RESPONDENT: First four sentences accepted and incorporated herein. Balance accepted as a comment on the evidence. Accepted. Not a proper Finding of Fact but more a comment on the state of the evidence. Accepted. Accepted but more as a comment on the state of the evidence. - 12. Accepted and incorporated more briefly herein. More a comment on the evidence and a Conclusion of Law than a Finding of Fact. Accepted and incorporated herein. First two sentences accepted and incorporated herein. Balance more a comment on the meaning and effect of the basic fact. & 17. Accepted and incorporated herein. First three sentences accepted and incorporated herein. Balance comment on the evidence. - 22. Accepted and incorporated herein. 23. & 25. This is a restatement of testimony by both sides. 26. & 27. Accepted and incorporated herein. COPIES FURNISHED: Frederick T. Reeves, Esquire Langford, Hill, Trybus & Whalen, P.A. Post Office Box 3277 Tampa, Florida 33601-3277 Wayne H. Mitchell, Esquire Commission on Minority Economic and Business Development Knight Building, Suite 201 2737 Centerview Drive Tallahassee, Florida 32399-0950 John Thomas Interim Executive Director Commission on Minority Economic and Business Development Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-0950
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
Findings Of Fact Vause is in partnership with his brother and has a principal office at 100 Hamilton Avenue, Panama City, Florida. Vause's business has two full-time employees and has a net worth of less than $100,000.00. In DOAH Case No. 88-5988, Vause applied for a special activity license to use mechanical harvesting devices on his oyster leases. DNR denied the application by "Final Order" dated October 17, 1988, and this "Final Order" provided the clear point of entry. Vause availed himself of this point of entry and requested a formal hearing. After a formal hearing, a Recommended Order was entered on March 13, 1989, wherein it was concluded that the application was valid and adequate and that Vause had met all conditions precedent to be entitled to the permit sought. DNR had denied the permit based on legally insufficient and incorrect grounds and authority. Vause has incurred attorney's fees at the rate of $125.00 per hour. A total of 19.20 hours were expended by Vause's attorney in the underlying proceeding and in this proceeding. The number of hours is reasonable and they were necessary. The hourly rate is reasonable. Hence, Vause has incurred $2400.00 in fees.
The Issue Whether Petitioner is entitled to certification as a Disadvantaged Business Enterprise (DBE) pursuant to Section 339.0805, Florida Statutes, and Rule Chapter 14-78, Florida Administrative Code?
Findings Of Fact Adnan Alghita, a licensed general contractor in the State of Florida, is the president and sole owner of Adnan Investment and Development, Inc. (Adnan's). Alghita is a United States citizen2 of Iraqi origin. He came to the United States from Iraq in 1969 and settled in Atlanta, Georgia, where he attended Georgia Tech. He graduated from Georgia Tech after only 15 months. After graduation, Alghita started his own construction company (Adnan's) in Atlanta. For a number of years, Alghita was a very successful businessman. His company evolved into a multi-million dollar business. He and his company suffered a serious setback, however, when the lending institution he had been dealing with on a regular basis terminated his line of credit and severed its relationship with him.3 In 1984, Alghita filed for Chapter 11 bankruptcy. Hoping that a change in location would revive his business, Alghita moved (both his residence and business) from Atlanta to Florida in 1990. At the time, he had very little capital. The change has not produced the results Alghita had hoped it would. Like other owners of businesses of marginal financial status, he has continued to have difficulty obtaining bonding and credit for his business and expanding its customer base.4 Recently, Alghita, on behalf of Adnan's, submitted a bid in response to a request for bids to undertake a construction project for the South Florida Water Management District (SFWMD). Adnan's bid was the lowest priced bid submitted, but it was rejected by SFWMD as non-responsive. There is no indication that Alghita's national origin played any role in SFWMD's decision to reject the bid. On May 2, 1996, Alghita filed an application requesting that the Department certify Adnan's as a Disadvantaged Business Enterprise. On the application, Alghita indicated that the "approximate value of the firm" was $300,000.00 and that its inventory (which included two homes) was worth $460,000.00. In a follow-up letter that he wrote to the Department, Alghita advised that in 1989, 1990, 1991, 1993, 1994, and 1995, his "personal income" was "below the minimum income to file an Income Tax return." In further support of the application, Alghita submitted to the Department a statement of credit denial, dated June 7, 1994, that he had received from the First Bank of Indiantown. The statement indicated that he had been denied a "$5,940 Letter of Credit to Bankers Insurance Co." because of past "bankruptcy" and "lack of collateral." By letter dated August 7, 1996, the Department notified Alghita of its intent to deny the application for DBE certification that he had filed on behalf of Adnan's. Such proposed action (which Alghita has challenged) is the subject of the instant administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order denying Petitioner’s application for certification as a Disadvantaged Business Enterprise DONE AND ENTERED IN Tallahassee, Leon County, Florida, this 16th day of April, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1997.
Findings Of Fact By letter dated January 26, 1989, Respondent denied Petitioner's application for certification as a Disadvantaged Business Enterprise on the grounds that its majority owner does not meet the requirements of a socially and economically disadvantaged individual. Dariush Ghaffarpour is the sole shareholder of Petitioner. Mr. Ghaffarpour, who is almost 22 years old, came to the United States with his parents in 1977. The family came from Iran, which they had had to leave as a result of serious unrest in the country. Mr. Ghaffarpour's parents were born in Iran, which adjoins Pakistan. They spoke the predominant language of Iran. Mr. Ghaffarpour currently has no family in Pakistan. However, his grandparents were Pakistanis, who left the country for Iran prior to the birth of their child, who is Mr. Ghaffarpour's parent. The grandparents, who are no longer living, spoke Pishtu, which is the national language of Pakistan. Mr. Ghaffarpour has never lived in Pakistan. His only visit there was for about two weeks. He does not speak Pishtu. Mr. Ghaffarpour does not belong to any Pakistani social groups. He is a member of a loose-knit group of Asian Americans, but this group is not geared toward persons from Pakistan or Iran. In applying for permission to immigrate to the United States, Mr. Ghaffarpour's family stated that their nationality was "Iran."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order denying Petitioner's application for certification as a Disadvantaged Business Enterprise. DONE and ENTERED this 30th day of June, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 June, 1989. COPIES FURNISHED: Dariush Ghaffarpour, pro se Sun State Land Development, Inc. 2014 South Dean Road Orlando, Florida 32825 Ruth B. Dillard Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
