Findings Of Fact Union Trucking is a Florida corporation engaged in the business of trucking. Its net worth is less than $2,000,000.00 In DOAH Case NO. 87-4007, the Department sent Petitioner a letter dated August 6, 1987, denying Petitioner's request for certification as a minority business enterprise pursuant to the Department's Rule 14-78.005, Florida Administrative Code. The reason stated in the letter was that Petitioner was not actually under the control of a minority person. On August 25, 1987, Petitioner timely requested a hearing and the case was sent to the Division Of Administrative Hearings on September 11, 1987. By Notice of Hearing dated September 23, 1987, hearing was scheduled for November 16, 1987 and later continued until February 10, 1988. Rule 14-78.002, Florida Administrative Code, was amended on September 21, 1987. The amendment effectively removed DOT's reason-for denial of Petitioner's certification. However, on February 11, 1988, well after the rule change came into effect, DOT formally decided to certify Petitioner. Petitioner was therefore forced to proceed for several months in preparation for an action which Respondent admits it had no basis for after the rule change took effect. Respondent's initial decision occurred on August 6, 1987, when Respondent notified Petitioner of its denial of minority business status. At some point in time, Respondent had filed its proposed rule change. Petitioner failed to demonstrate the time of the proposed change. Depending on the facts surrounding the rule change as to its likelihood of adoption at the time Respondent initiated this action, no findings regarding substantial justification can be made at the time of the agency's initial action on August Most certainly after September 21, 1987, the date the MBE rule was amended, Respondent lacked any substantial justification to continue to litigate this matter. The Final Order of the Department recognized the earlier certification of Petitioner and dismissed the action. However, the Final Order of Respondent did not dispose of the attorney's fees issue which had also been raised during the principal action. The order, therefore, did not dispose of substantially all the issues raised in the principal action. Additionally, there was no settlement of this case since a written settlement agreement was drafted and signed by Petitioner, but refused by Respondent. Respondent's unilateral certification is not enough to force a settlement on Petitioner, especially since Respondent elected to enter a Final Order in this case. Petitioner, therefore, became a prevailing party when Respondent entered its Final Order on April 18, 1988. Section 57.111(4)(b)(2) , Florida Statutes. The application and affidavit which initiated this action were filed on May 23, 1988. The application substantially meets the requirements of Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, in that it fairly put Respondent on notice of Petitioner's claim. The application and affidavit were timely, having been filed within 60 days after the date on which Petitioner became a prevailing small business party. According to the affidavit of Frank M. Gafford, Petitioner incurred legal fees of $3,572.86. These fees and costs are found to be reasonable. The Department does not dispute the reasonableness of the fees in this case.
Findings Of Fact Jennifer Morales-Allison is Hispanic-American and qualifies as a minority as defined in Section 278.012(9), Florida Statutes (1989) (Ex. 6). TSI was incorporated with the intent to obtain certification as a Disadvantaged Business Enterprise (DBE). In carrying out this intent Ms. Allison owns 510 shares of the 1000 shares issued in TSI which constitutes 51% of the stock of TSI. Richard Alberts, the non-minority shareholder of TSI, owns 490 shares or 49% of the stock of TSI. Alberts is president of TSI. TSI is primarily an environmental planning consultant and contracts generally with governments to provide environmental consulting involving road and airport construction. Accordingly, the work performed is technical in nature. Richard Alberts has some 22 years experience in environmental consulting primarily under contracts with the Federal Aviation Administration involving environmental effects of airport construction and state road departments involving environmental effects of highway construction. Prior to the incorporation of TSI Alberts worked at Greiner, an engineering firm doing extensive environmental consulting work, for some eight years. Ms. Allison also worked at Greiner during the time Alberts was employed there. She started out as a word processor-typist, moved up through secretary to office manager. During her eight years at Greiner she worked as secretary for Alberts and later as his administrative assistant. Her working experience was predominantly administrative such as in the preparation of contracts as opposed to technical. She has never served as a project manager or been involved with carrying out environmental contracts other than seeing that the proper personnel were assigned to the project and the agency was properly billed for the services. Although the evidence indicates Ms. Allison contributed $19,876 (51%) and Alberts contributed $19,092.32 (49%) as start up capital for TSI, Ms. Allison's contribution was obtained as a loan from Alberts for which promissory notes were signed. These notes were intended to be repaid from profits of the corporation, although the promissory notes are not so conditioned. Alberts' salary is set at $60,000 per year and Ms. Allison's salary at $40,000. Prior to leaving Greiner Alberts' salary was $80,000 and Ms. Allison's salary was $28,000. The bylaws of TSI (Ex. 5) provide that the president of the corporation shall be the principal executive officer of the corporation and, subject to the control of the board of directors, shall in general supervise and control as manager of technology all of the business and affairs of the corporation. Both Alberts and Allison testified that it was their intent that Alberts supervise the technical aspects of the corporation and Allison would supervise the business aspects of the corporation, and, if necessary, the bylaws of the corporation would be redrawn to express that intent. Both incorporators, Allison and Alberts, testified that Allison made final decisions for the corporation and as 51% owner controlled the vote of the board of directors comprised of Allison and Alberts. As such she had the authority to hire and fire employees, including Alberts. Without Alberts' expertise the corporation could not have successfully commenced operations. He is the incorporator with the knowledge and experience to bid on projects and carry out environmental consulting contracts once obtained. He is also the person who provided all necessary working capital for TSI to commence operations. Finally, he holds the necessary licenses and is qualifying officer for the company's projects. Evidence was submitted that Allison signs checks and contracts on behalf of TSI, that she hires and fires employees, and that she has the final say in all corporate decisions. This evidence is not credible with respect to her having final say in all corporate decisions. If Allison attempted to fire Alberts he could move out with the remaining capital he provided and forthwith start another company similar to TSI; and, if he did so, TSI would undoubtedly fail.
Recommendation It is, RECOMMENDED: That the application of Transportation Solutions, Inc. for certification as a Disadvantaged Business Enterprise be disapproved. DONE and ENTERED this 9th day of September, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1991. APPENDIX Proposed findings submitted by Petitioner are generally accepted as testimony of the witnesses but, insofar as this testimony is that Ms. Allison controls the operation of TSI, those findings are rejected. Petitioner filed no findings of fact separate from conclusions of law; accordingly, without assigning a number to each paragraph, a ruling on Petitioner's proposed findings cannot be made. Nevertheless, the ultimate paragraph, starting at the bottom of page 6 of the proposed Order, is rejected insofar as it concludes that Ms. Allison has the requisite control to qualify TSI as a minority business enterprise. Proposed findings submitted by Respondent are accepted and are generally included in the Hearing Officer's findings of fact. COPIES FURNISHED: Mark M. Schabacker, Esquire P.O. Box 3391 Tampa, FL 33601-3391 Harry R. Bishop, Esquire 605 Suwanee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
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
Findings Of Fact At all times pertinent to the matters concerned herein, the Respondent, Department of Transportation, was the state agency responsible for the construction and maintenance of state highways in Florida and for the certification of disadvantaged and minority business enterprises to do business with it. Petitioner, Tri-D, Inc., is a heavy construction firm whose primary business involves the installation of water, sewer and storm pipes, including conduits for all underground utilities, doing business in the State of Florida. Tri-D, Inc., was organized and incorporated by Donald Burton in 1979. Mr. Burton was the sole owner and President until 1982 at which time his wife, Nancy Ann, became the Secretary/Treasurer of the corporation. In 1985, Lou DeMarco was hired as Vice President. In 1986, Mrs. Burton and Mr. DeMarco each purchased 10 shares of corporation stock. In doing so, each became a one/third owner of the corporation. In March, 1990, Mrs. Burton purchased an additional 20 shares of corporate stock, which has a par value of $10.00 per share, for $200.00. When this was done, fifty total shares were outstanding, of which Mrs. Burton owned sixty percent. Mr. Burton and Mr. DeMarco each owned twenty percent of the corporate shares. At the time Mrs. Burton became the sixty percent shareholder, she was also made Chairman of the Board of the corporation. Mr. Burton remains President, and Mr. DeMarco, Vice President. There have been no other changes in the corporate structure since that time. All three shareholders receive the same salary, $600.00 per week. The decision to make Mrs. Burton the majority shareholder came about as a result of the desire to facilitate Tri-D's qualification as a DBE. One month after her purchase of the controlling interest in the corporation, Tri-D applied for certification as a DBE and after investigation by the Department, the application was denied on the basis that Mrs. Burton did not exercise the requisite control of the firm. Mr. Burton holds a state license in Florida as a registered underground utility contractor, the license under which Tri-D, Inc. does business. He has held that registration for approximately 6 or 7 years. It is not the type of registration which requires a competency examination. Mr. Burton founded the company in 1979 and has been the President from that time on. He cannot remember whether he was sole stockholder at the time or not, but does recall that even in 1979, his wife was significantly involved with the business. Before she started with Tri-D, she had her own catering company, but when Tri-D started out, it grew with a speed beyond his expectations, and he was not able to handle it alone. As a result, Mrs. Burton gave up her own company in order to devote full time to the affairs of Tri-D. Mrs. Burton did the things he was unable to handle from the time the company was started up to approximately 1985. At that point, she started taking control of the entire business because he had to devote his time to field operations. Because of the loss that Tri-D suffered as a result of a job that they were working on at that time, in which the original contractor was dismissed and Tri-D was required to finish up under the sole direction of Mrs. Burton, Mr. Burton has been very unhappy with the entire industry since, and his involvement with the company from a management standpoint has decreased radically. He is now getting into other investments and has other financial interests. He is a Director of the Southern Utilities Contractor Board, and he sits on the Board of the Florida Contractor's Association and on the National Utilities Contractors Board, as well as the National Wetlands Committee and the National Safety Committee of that Board. These various interests take up a substantial portion of his time, and were it not for Mrs. Burton being able to run the company, he would not be able to serve on them. Mr. Burton sees the division of responsibilities at Tri-D as calling for Mr. DeMarco to handle the financial aspects and him, Burton, to handle field operations. Mrs. Burton actually brings it all together, coordinating the efforts of finance with those of operations, and making the ultimate decisions on anything that goes on. He has retained the title of President primarily because he could see no reason to change it. There are a lot of people who do not care to deal with women and because he retains the title of President, he can deal with them when they refuse to talk to his wife. He contends, however, that Mrs. Burton makes all decisions, not only on questions of finance, but also on questions of bids and contract letting, and she has final decision authority as to whether or not to take a contract or bid on one. Once that decision has been made by Mrs. Burton, then the financial aspects are controlled, to a degree, by Mr. DeMarco, and the operational concerns by Mr. Burton. Purchases by the company are approved by Mrs. Burton, as is the hiring and firing of employees, though the actual implementation of the decision might be left to someone else. Several years ago, Mrs. Burton was offered the title of President, to go with the realities of her responsibilities, but she declined it. When Mrs. Burton purchased the additional shares in the company which brought her ownership up to 60%, she paid only the $10.00 per share par value. At that time, for the additional minimum investment, she acquired a 60% ownership in all corporation tangible assets and good will which had been developed over the years since the company was founded. Mr. Burton justifies this on the basis that at the time, though she paid only par value, the corporation owed her a great deal of money representing sums she had loaned the company over the years. She estimates this at somewhat in excess of $100,000.00, much of which she inherited from her mother and grandmother. Mr. Burton cannot say where these loans are reflected in the company books, and Mrs. Burton indicates she has, somewhere, notes for only a portion thereof. Nonetheless, there is no evidence to contradict these assertions, and they are accepted. Item 32 on the application form shows a total of $68,108.00 owed by the company to Mrs. Burton. The Department's consultant, Mr. Knight, took the position that the fact that all three principals earn the same salary, $31,500.00 per year, ($600.00 per week), indicates that Mrs. Burton is not really the controlling owner since the relationship between salary and responsibility is one of the indicators for DBE qualification. However, Mr. Burton feels that the salary an individual makes need not necessarily be commensurate with that person's ownership in the corporation or, for that matter, with their responsibility. Mrs. Burton relates that up until a few years ago, she was not earning as much as her husband or Mr. DeMarco. However, because of the money she had invested in the company, and because of the fact that over the years she kept gaining more and more control of the business and assuming more and more responsibility, she felt she was entitled to make at least as much as everyone else was making. No dividend is paid at the end of each year. Any surplus is plowed back into the business. Mr. Burton's field supervision amounts primarily to his driving around to the various jobs to oversee that the employees are working and to check with the job superintendent to insure that things are being done properly. If something needs to be taken care of, he works it out with the superintendent and makes sure that that individual has the information he needs to keep the job going. Though both Burtons are not usually in the field, at the same job, at the same time, there have been frequent occasions when he has been on a job site and she has shown up. When she is on the job in the field, she does exactly what he does - facilitate the completion of the job. In any event, if the field superintendent needs to call about the failure of supplies or equipment to get to the job site timely, he calls the main office where the message is delivered to Mrs. Burton who takes the necessary action to resolve the problem. With respect to authority, Mrs. Burton leaves little doubt as to her opinion as to who controls the business. As she succinctly put it, There is no doubt that I am the boss. There is no doubt. I mean, I've been the boss in our family. I'm the boss in Tri-D. I'll tell you the honest truth. I've got two boys; they both work for me. One goes to college part time and the other one works for me, and he goes to Mom for all decisions. He did when we were at home and he does now. She admits that sometimes Mr. Burton is not entirely happy with the decisions she makes. In fact, on one occasion, "He did a few flips" about a decision she'd made, but her decision was not changed. Mrs. Burton also admits she cannot be everywhere at all times, and she cannot do everything that needs to be done. As a result, she has delegated some of her responsibilities to others to implement, but the ultimate policy making and the overall conceptual decision making is done by her. Though her husband feels he has responsibility for field supervision, in reality she does not believe that during the last year he has been on the job that much. When he gets there he causes problems because he is angry as a result of his disenchantment with the industry, and blows up and takes off. As a result, she encourages him not to go out on the jobs. The field superintendents, she claims, primarily report to her. She has a radio in her office which allows her to stay in constant contact with the field superintendent on each of the jobs. In addition, she goes out to the jobs - not as much as she would like, but when it is necessary, and she claims she is on every job, one way or another, two or three times a week. It does not matter, however, whether she is physically present on site or not. Through the radio, she can be reached at any time. Mrs. Burton has qualified people whom she has put in charge of each of the company's jobs, but when the time comes for someone to "crack the whip" with the employees, she does it. Mr. DeMarco's function is primarily financial, yet periodically she sees things he has done which she has to "whack him every now and then" for. She's not particularly happy with the way he pays the bills, and he comes to her to collect from the more recalcitrant clients. In short, he manages the routine financial aspects of the firm, but when it comes to big checks, subcontractors, or the important matters, she makes those decisions. She admits she does not always sign all contracts entered into by Tri- D. On occasion, other employees, primarily Mr. Zeigler, have signed contracts, but they are not supposed to do so without her prior approval. On the rare occasion that her policy has been violated, she was furious, and as she stated, "I kinda beat him up a little bit." For the most part, however, if Mr. Zeigler wants something, needs something, or really has to have a financial question answered, he will come to her for help. All major purchases must be approved by and cleared through her, and she is the company's primary liaison with the Gulf Coast Builders Exchange, an industry association which serves as a clearing house for contractors in the area and through which much of the company's business is derived. In 1982, through her efforts, the company was enrolled in the Exchange, and since that time, the company's membership has been in her name. No independent evidence was presented by the Department to rebut or contradict any of the above. Mr. DeMarco's expertise is primarily in the field of accounting and finance, and his relationship with Tri-D is limited to that area. He does not get involved in field operations, and participates in the management of the company only to a limited degree. It is his understanding that company practice dictates that decisions be made by Mrs. Burton after they are discussed to some degree among Mrs. Burton, Mr. Burton and him. He is satisfied that Mrs. Burton has the final word, however. Mr. DeMarco signs checks for the company, occasionally, but two signatures are required on company checks. In almost every case, Nancy Burton is one of the two signatories. In regard to payroll, however, the other signatory could well be the payroll clerk. Also, on occasion, he signs construction contracts for the company, but both Mr. and Mrs. Burton have independent authority to do that as well. If anyone else were to sign a contract for the company, it would have to be authorized first by Mrs. Burton. Routine operating practice provides that when a contract comes in, it is first given to Mrs. Burton to look at and then is sent to the estimating department to be evaluated against the bid to be sure it is consistent with the bid submitted. If there are any comments to be made, they are discussed among the parties, and then the contract is ultimately referred back to Mrs. Burton who can either elect to sign it or authorize someone else to do so. However, she is the final authority as to whether it is signed at all or not. Mrs. Burton is also the individual who selects the lawyers and accountants used by Tri-D in its routine operations. Mr. Burton's role with the company is primarily in the field. His expertise is more in the area of mechanics and his involvement in the actual management of the company as regards financial management and contract administration is virtually nil. According to Mr. DeMarco, even before the change in proportionate ownership in 1990, since his association with the firm in 1985, there really has been no change in operation. Mrs. Burton has always made all the ultimate decisions for the company. Even in the area of his expertise, financial matters, he does not have the authority to independently sign contracts without first securing approval from Mrs. Burton. Though he recently signed for the company on a $200,000 loan, it was discussed with Mrs. Burton before hand and it constituted, in fact, only the renewal of an existing loan and not the initiation of a new loan resulting in increased company debt. Rick Arnold, a sales representative for Barnie's Pumps, a company which sells equipment to contractors, including Tri-D, has dealt with Tri-D for the past 10 years and makes contact with company management about once a month. He first met Mr. Burton at a job site in 1981. His acquaintance with Mrs. Burton came about somewhat later, but he has known her for approximately 8 years. Unless he is called by Tri-D, he generally just periodically goes to one of the work sites and meets with either Mrs. Burton or Mr. Zeigler, the estimator. He has found Mrs. Burton to be knowledgeable concerning the industry in which Tri-D operates, and though his relationship with the company relates only to his product, what he sees in Tri-D's office when he is there indicates to him that Mrs. Burton is responsible for handling the entire scope of the business. When they speak, she seems familiar with the subject matter and understands the information he has to impart. Based on his observation of the Tri-D operation over a 10 year period, he has concluded that Mr. Burton's role in the operation of the corporation has diminished considerably from what it used to be. He is comfortable with the decisions he gets from Mrs. Burton and does not feel, after having talked with her, that he has to find Mr. Burton or anyone else to confirm what she has decided. He believes that the impetus for Tri-D's preference to do business with him and his concern comes from Mrs. Burton. Philip Light, Vice President of Luehring Land Development, who has been in the construction industry for approximately 25 years, has had business contacts with Tri-D since early in 1989. He recalls several substantial projects where Luehring was general contractor to Tri-D on projects. In each case, the relationship between the two corporations was formed through a bid process where Tri-D was awarded a subcontract. In all cases, Mr. Light's counterpart at Tri-D was either Mr. or Mrs. Burton. To his recollection, he would deal with Mrs. Burton approximately 60% of the time. Much of his relationship with Mr. Burton was related to field problems, though he also dealt with Mrs. Burton in the field. As a result of his dealings with her, he believes without question that she is knowledgable in all phases of the industry in which they both operate. On one occasion where a dispute developed on a project in which they were both involved, his negotiations during the litigation which resulted in the settlement of that dispute was always with Mrs. Burton, and no one else from Tri-D was involved in the settlement discussions. Based on his observations as an outsider, but one who deals with Tri-D on a frequent basis on bidding, contracting, pricing and billing, he is satisfied that Mrs. Burton is the prime and controlling individual in the operations of that concern. He is also satisfied that both technically and administratively, she is fully aware of the responsibilities of the job and exercises supervision and control in both areas. After Tri-D submitted its application for certification as a DBE,in accordance with Department rule, the file was assigned to Howard Knight who conducted the required investigation and on-site interview of Tri-D's operation, and prepared a summary of his findings for the certification committee within DOT. In the on-site interview, conducted after advance notification, the consultant looks primarily at certain key functions of the minority program including ownership, management and control. He tries to determine if the minority owner of the firm owns 51% of the company, and whether that 51% is in stock and equipment or expertise and background. The Department does not question Mrs. Burton's majority ownership of the corporation. He also looks at whether or not the minority owner in fact has control of the company - whether or not that person acts independently of other people involved in the company operations, ownership or management. He looks at who is signing the documents and papers of the corporation and the checks, who is supervising, and who is hiring and firing. One criteria established by the federal government, as well as the state, is that the minority majority owner act independently of others. Those steps were followed in Mr. Knight's survey of Tri-D which took place on June 27, 1990. During the interview, he worked primarily with Mrs. Burton, but also contacted some individuals from outside the company who had business relationships with Tri-D in an effort to determine with whom in the company they dealt. Some of these people dealt with Mrs. Burton exclusively, and some with others. For the most part, however, Mrs. Burton was accepted as at least an equal to her husband in business matters. It does not appear that Mr. Knight interviewed anyone in the company except Mrs. Burton. Mr. Knight had some reservations regarding Mrs. Burton's control of the company. In his opinion, it appeared there was not sufficient control as called for by federal and state regulations. He perceived a lack of independence in her control of the corporation. In making that determination, he looked at several indicators which, to him, showed she acted either with her husband, with Mr. DeMarco, or with some other person in the firm, and in Mr. Knight's opinion, few of the actions she took were independent of someone else. In support of that conclusions, Mr. Knight referred to the application and the on-site review check list accomplished at the time of the interview, which was filled out either by or in conjunction with the applicant, and in which certain questions were answered which led him to conclude Mrs. Burton did not act independently. Paragraphs 18 - 20 of the application, which ask for the names and titles of the individuals who perform certain managerial functions for the firm, provide spaces for two names as to each area. With only one exception, that dealing with the supervision of field operations, Mrs. Burton was one of the two individuals identified. The other was either Mr. DeMarco, Mr. Burton or Mr. Zeigler. This shows that while one of those three might perform some tasks, with the one exception, Mrs. Burton could perform all of them. This appears to be some substantial evidence of overall supervision and control. Nonetheless, because of the fact that Mrs. Burton's name was not usually listed alone, all of the above established, in Mr. Knight's mind, that Mrs. Burton does not act independently of others in her management of the organization. In fact, the only thing he could see that she does by herself is hire and terminate employees. Only the question, "Who establishes policy procedures?" is answered utilizing Mrs. Burton's name alone. Other factors which Mr. Knight felt indicated a lack of control by the minority party were what he perceived to be Mrs. Burton's lack of expertise and licenses to run the business, and he questions whether or not she can do so without the assistance of Mr. DeMarco from the financial side, and that of Mr. Burton and Mr. Zeigler from the operational standpoint. All of the business licenses of the firm are in Mr. Burton's name. Comparing the resumes of Mr. and Mrs. Burton, and those of the other people in the company, led Mr. Knight to the conclusion that all those other than Mrs. Burton had more experience and expertise in the construction business. Further, Mr. Knight rejects Mrs. Burton's contention that her husband is not particularly involved in the business, finding instead that he is quite involved because he signs a lot of business documentation, repairs equipment, is out seeking jobs for the company, and serves on numerous boards and councils directly relating to the construction industry. He feels the company history, indicating that it was started by Mr. Burton, added to by Mr. DeMarco, and finally turned over to Mrs. Burton only recently supports his position. He also considers the company officer structure to indicate a lack of control in Mrs. Burton. The President of the company is, in his opinion, normally the one who makes decisions and runs the daily business of the company. Mr. Knight also investigated the financial structure of the company relating to who signs and makes the loans, how the majority ownership was transferred to Mrs. Burton, and what she gave in return for that majority ownership. He was unable to develop much relevant information regarding the consideration paid for the stock above and beyond par value. With regard to the authority to sign loans, however, Mr. Knight felt it significant that Mr. DeMarco was the only signatory to a major loan to the company. He felt a loan of this size would ordinarily be signed for by the controlling owner of the corporation, and the fact that DeMarco did it and not Mrs. Burton was, to him, significant. This, however, is the renewal loan, the signature for which had been fully discussed with and coordinated on by Mrs. Burton. Mr. Knight's summary was submitted to the Department's Certification Committee, whose function it is to recommend on any particular file whether or not the applicant should be certified as a DBE. The committee does not consider the report of the consultant to be a recommendation by itself. In fact, the consultants are instructed not to make recommendations to the committee, but to compile facts which are summarized for the committee and used by it in its independent determination of whether or not a recommendation for certification should be made to the Director. In the instant case, the committee recommended against certification of Tri-D. The certification committee meets on a weekly basis and considers anywhere from 7 to 16 applications at any time. Three of the four committee members are voting members. Before the committee meets as a collegiate body, the individual files are circulated among the members for review, and by the time the members meet as a body to discuss and recommend, they should be familiar with the aspects of each application and be prepared to discuss it. In the instant case, the committed accepted the fact that Mrs. Burton, the minority party, is, in fact the majority owner. They saw, however, a major problem regarding the day to day control of the corporation. It was clear to Mr. Waldon, in his review of the file and of Mr. Knights report, that Mrs. Burton did not exercise the requisite day to day control of the company. That determination was based on his evaluation of some eight or nine factors listed on Schedule A of the application form, and includes such items as equipment purchases, hiring and firing, and the like. In almost all of those categories, according to Mr. Waldon, Mrs. Burton was listed as either the secondary person in authority or had no authority at all in a particular category. This latter claim is clearly contradicted by the evidence of record. Only in one area was she not listed as an actor. Mr. Waldon admits that the review by the certification committee was based entirely on the documents contained in the file, and it was on the basis of those documents, the financial papers, the signatures on leases and loan papers, and those items which are contained in the documentation file, which led the committee to the conclusion that there was insufficient evidence to show Mrs. Burton exercised the requisite day to day control that one would expect from the chief managing officer of a corporation. One of the primary indicators that the committee relied upon in reaching its conclusion was the fact that Mrs. Burton did not have the title of President of the corporation. Further, on the notarized application form, filled out by Mrs. Burton, she indicated she did not play a leading role in most of the categories looked at in determining whether or not she had day to day control of the entity. Again, this is merely the committee's interpretation of the answer. When the committee reviews an application, it looks primarily at the applicant. While no one aspect of a file will control, each of the various aspects and documents in the file contributes to the overall picture generated in the collective minds of the committee as to whether or not the applicant meets the criteria for certification as a DBE. In this case, based purely on the documentation contained in the file, one piece of which was Mr. Knight's summary and evaluation, it appeared to the committee that both Mr. Burton and Mr. DeMarco had more authority, both individually and together, than did Mrs. Burton. It is important to note here that no member of the committee talked with Mrs. Burton or visited the site, nor did they talk with anyone else associated with the industry or with the corporation. They relied exclusively on the impressions gained by Mr. Knight and the documents submitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Tri-D, Inc. be certified as a disadvantaged business enterprise, (woman owned). RECOMMENDED this 7th day of May, 1991, 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 7th day of May, 1991. 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: 1. - 5. Accepted and incorporated herein. FOR THE RESPONDENT: 1. - 4. Accepted and incorporated herein. Accepted to mean her experience is not as extensive as his. First sentence rejected as unproven. Second and third sentences accepted. Fourth sentence accepted and incorporated herein with the additional finding that the loan was a renewal of a loan and was with Mrs. Burton's approval. Accepted except for the finding that all current business was obtained by Mr. Burton (See testimony regarding contacts obtained through Gulf Coast Builders Exchange.) Accepted and incorporated herein except that Mrs. Burton indicated that she had, over the years, invested in the business considerable sums she had inherited. & 10. Accepted and incorporated herein. COPIES FURNISHED: Charles J. Bartlett, Esquire Icard, Merrill, Culliss, Timm, Furen & Ginsburg, P.A. Postal Drawer 4195 2033 Main Street, Suite 600 Sarasota, Florida 34237 Harry R. Bishop, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS - 58 Tallahassee, Florida 32399-0458 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The central issue in this case is whether Petitioner is entitled to be certified as a minority business enterprise.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Certified General Contractors & Developers, Inc. is a Florida corporation organized to do business in this state. Jeri Dee Goodkin, at all times material to this case, has been the president and sole owner of Certified General Contractors & Developers, Inc. Ms. Goodkin is a minority person as that term is defined by Section 288.703, Florida Statutes. Jeri Dee Goodkin holds a general contractor's license, number CGC041575, which was issued by the Construction Industry Licensing Board. Ms. Goodkin is the only employee of Certified General Contractors & Developers, Inc. so licensed. The sole business of the company is to do general construction contracting. Ms. Goodkin's father, Ivan Goodkin, and brother, Mark Goodkin, are employed by the company. Both father and brother work as salesmen. They attempt to procure jobs for the company, and their responsibilities include estimating the price at which the work can be completed. Once the job is secured, Ms. Goodkin contacts subcontractors who submit bids for portions of the job. Ivan and Mark Goodkin may supervise the jobs they procure for the company. Ms. Goodkin is also responsible for supervision and must be on site for inspections performed by governmental agencies. According to two subcontractors with whom Petitioner has done business, Jeri Dee Goodkin negotiated and reviewed all work performed by the subcontractors. Prior to forming the Petitioner company, Ms. Goodkin and her father and brother worked for another company which was involuntarily dissolved by the Secretary of State. Ivan Goodkin was not an owner of the prior company. There is no evidence from which it could be concluded that the Goodkins owned or solely operated their prior employer. Jeri Dee Goodkin has executed a lease on behalf of the company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered approving Petitioner's request to be certified as a minority business enterprise. DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Buildinc 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1988. APPENDIX Rulings on Proposed Findings of Fact submitted by Petitioner: Paragraphs 1,2,3,5.7,8,10,13,and 14 are accepted. Paragraph 4 is rejected as not supported by the record in this cause. Paragraph 6 is rejected as not supported by the record in this cause. Paragraph 9 is rejected as argument or comment unnecessary to the determinations and findings of fact. That portion of paragraph 11 which sets forth the license number for Jeri Dee Goodkin is accepted, the rest of the paragraph is rejected as not supported by the record in this cause. Paragraph 12 is rejected as not supported by the record in this cause. Paragraph 15 is rejected as argument, irrelevant or unsupported by the record in this cause. With regard to the subparagraphs listed under paragraph 16, the following findings are made: subparagraphs 2,3,7,10,13,and 27 are accepted. Subparagraph 28 is accepted to the extent that Jeri Dee Goodkin is the only licensee employed by the company. All other subparagraphs are rejected as unsupported by the record in this cause. Rulings on proposed findings of fact submitted by the Department: Paragraphs 1,2,3,4,8,9,10,11,13,and 15 are accepted. Paragraph 5 is accepted, however is deemed irrelevant and immaterial to the resolution of the issue in this case. The evidence does not establish nor suggest that the Goodkins had an ownership interest in the prior company with whom they were employed. Paragraph 6 is rejected as irrelevant and immaterial. Paragraph 7 is rejected as speculative or argument. At best the lease shows it was executed by Jeri Dee Goodkin. The "Mr.Goodkin" referenced on the lease is not explained either by the document itself or the record in this cause. Paragraphs 12 and 14 are rejected as a recitation of testimony, argument or irrelevant comment. COPIES FURNISHED: Deborah S. Rose Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Jeri Dee Goodkin Certified General Contractors & Developers, Inc. 16375 Northeast 18th Avenue North Miami Beach, Florida 33162 Ronald W. Thomas Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating persons engaged in the business of private investigation. At all times material to the allegations of this case, Respondent was licensed as a class "CC" private investigator intern, license number CC97-00449. Respondent also holds a class "G" statewide firearms license, license number G97-01406. During some period prior to September 3, 1997, Respondent was employed by J.R. Investigative Agency. Mr. Onativia owns and operates J.R. Investigative Agency. In August 1997, Mr. Onativia filed a complaint with the Department that Respondent was conducting private investigations without a license. Ms. Robinson, an investigator for the Division of Licensing, was assigned to review the complaint. Ms. Robinson contacted Respondent and advised him that the agency had received a complaint that he was conducting investigations on his own without an agency license. Respondent admitted he was doing investigations but claimed Mr. Onativia knew of his activities. He further admitted to Ms. Robinson that he was doing investigations on his own for attorneys in order to support his family. Respondent had also admitted to the investigation activities to John Esposito. After Ms. Robinson confirmed the information with Mr. Esposito as to the admissions made by Respondent, investigation of the complaint stopped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order revoking Respondent's class "CC" license. DONE AND ENTERED this 1st day of April, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1999. COPIES FURNISHED: Honorable Katherine Harris, Secretary of State Department of State The Capitol, Plaza 02 Tallahassee, Florida 32399-0250 Deborah K. Kearney, General Counsel Department of State The Capitol, Lower Level 10 Tallahassee, Florida 32399-0250 Steve Bensko, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 David C. Rash, Esquire Law Offices of Johnson and Rash 1509 Northeast Fourth Avenue Fort Lauderdale, Florida 33304
The Issue Whether Petitioner is eligible for certification as a "minority business enterprise" in the area of landscape contracting?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a Florida corporation that was formed and incorporated by Margaret Gordon, who is the corporation's sole shareholder and its lone officer and director. Gordon is an American woman. Before forming Petitioner, Gordon held various jobs. Among her former employers are Florida Maintenance Contractors and Scenico, Inc. She worked for the former from 1984 to 1991, and for the latter from 1984 to 1990. As an employee of Florida Maintenance Contractors and Scenico, Inc., Gordon supervised landscaping projects. As a result of this work experience, Gordon has the managerial and technical knowledge and capability to run a landscape contracting business. Petitioner is such a landscape contracting business, although it has not undertaken any landscaping projects recently. Its last project was completed two years prior to the final hearing in this case. Since that time, the business has been inactive. Gordon's two sons, working as subcontractors under Gordon's general supervision, have performed the physical labor and the actual landscaping involved in the previous jobs Petitioner has performed. Gordon herself has never done such work and she has no intention to do so in the future. Instead, she will, on behalf of Petitioner, as she has done in the past, use subcontractors (albeit not her sons inasmuch as they are no longer available to perform such work.) Petitioner filed its application for "minority business enterprise" certification in the area of landscape contracting in March of 1994.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a final order denying Petitioner's application for certification as a "minority business enterprise" in the area of landscape contracting. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of October, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1995.
Findings Of Fact The only issue raised as to whether the Petitioner's application for a private investigative agency license should be granted, is whether or not he has the experience required by law. The Petitioner has received an Associate of Arts degree from Palm Beach Community College. His primary area of study was law enforcement, including courses in search and seizure and investigations. In 1974 the Petitioner received a Bachelor's degree in Criminology from the Florida State University. At Florida State he took courses in criminal investigations, constitutional law, government, psychology, and sociology. While the Petitioner's course work does not constitute experience in the area of private investigations, it is relevant to his qualifications to serve in that capacity. Prior to his attending college, and during the time that he attended college, the Petitioner worked as a security officer for several department stores. He worked approximately four months for Fountain's Department Store in Palm Beach County, and approximately twelve months at Gayfer's Department Store in Tallahassee, Florida, At Gayfer's his employment was part-time, however, he worked thirty to forty hours per week. After graduation from college the Petitioner worked approximately five months at a Sears Department Store in Palm Beach County on a full-time basis. Four months of that experience was as a security officer. As a security officer at the department stores, the Petitioner was present at the stores and observed customers. He apprehended shoplifters, took statements from them, and testified against them in court. He also investigated cash register shortages and other indications of employee dishonesty. An investigator for the Division of Licensing testified that in his opinion the department store experience would not constitute experience in the area of investigations, but rather should be considered security work. The agent did testify, however, that a policeman who worked on a "beat" would be considered to have investigative experience. The work that the Petitioner performed at the department stores is directly analogous to the work that a policeman would perform, and his experience is directly related to the field of private investigations, and should be included in his experience. From March, 1976 through February, 1977 the Petitioner was employed by the Wackenhut Corporation. Since March, 1977 the Petitioner has been employed by Damron Investigative Agency. The work that the Petitioner has performed with these two employers is directly related to the field of investigations. At the time of the hearing the Petitioner had a total of 26 months of experience working for these two employers.
Findings Of Fact Respondent is the governmental agency responsible for certifying persons as minority business enterprises. Petitioner applied for certification as a minority business enterprise. Petitioner is a minority business enterprise within the meaning of Section 288.703(2), Florida Statutes. 1/ Petitioner is a small business concern, domiciled in Florida, and organized to engage in commercial transactions. Petitioner is a Florida corporation wholly owned by Ms. Sandra A. Pichney, vice president, and by Mr. D.B. Young, president. Petitioner engages in the roof consulting business. Ms. Pichney owns 51 percent of Petitioner's outstanding stock. Ms. Pichney is a member of a minority group for purposes of Chapter 288. The remaining 49 percent of Petitioner's outstanding stock is owned by Mr. Young. Mr. Young is a licensed architect. No professional license is required for Petitioner to engage in the business of roof consulting. Petitioner has all of the occupational licenses required to engage in the commercial transactions required to conduct its business. Ms. Pichney has 16 years experience in the roof consulting business. Ms. Pichney controls the daily management and operations of Petitioner's business. Ms. Pichney: manages and operates the office; and is responsible for payroll, accounts receivable, and general financial matters. Ms. Pichney conducts field visits, estimates jobs, reviews projects, and rewrites specifications. Ms. Pichney is the person who signs checks for Petitioner in the ordinary course of Petitioner's trade or business. Mr. Young is authorized to sign checks but only signs checks in emergencies. Ms. Pichney hires and fires personnel. Ms. Pichney consults with Mr. Young, but the ultimate responsibility is born by Ms. Pichney. Ms. Pichney reviews specifications and design work for specific projects and makes amendments where appropriate. Original specifications and design work are prepared by Mr. Young and other personnel. Mr. Young, and other personnel, can be terminated by Ms. Pichney without cause. Mr. Young can be terminated as an employee at any time by Ms. Pichney, without cause. Mr. Young has no employment agreement or shareholder agreement with the company. The board of directors are comprised of Ms. Pichney and Mr. Young. Any director may be dismissed by a majority of the shareholders. As the majority shareholder, Ms. Pichney can terminate Mr. Young, as a director, without cause. Ms. Pichney and Mr. Young receive salaries and monthly draws. Although salaries are equal, monthly draws and dividends are distributed in proportion to the stock ownership of each shareholder. Ms. Pichney has exclusive use of the company car. Ms. Pichney's stock ownership has increased over the last two years because Mr. Young has been unable to attend to the demands of Petitioner's business due to Mr. Young's divorce. Ms. Pichney has properly reported the increase in stock ownership, for purposes of the federal income tax, and has, and will, pay the requisite income tax on her increased stock ownership. Ms. Pichney and Mr. Young consult with each other in making significant decisions in the ordinary course of Petitioner's business. However, the ultimate responsibility for those decisions is born by Ms. Pichney.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order granting Petitioner's application for certification as a minority business enterprise. RECOMMENDED this 22nd day of July, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1995.
The Issue The issue in this case is whether the Petitioner, Lyons Towing, Inc., is entitled to certification as a minority business enterprise.
Findings Of Fact Mrs. Bobbye Lyons, an American woman, presently owns 89 percent of the corporate stock of the Petitioner, Lyons Towing, Inc. Her husband, Mr. Don Lyons, owns the other 11 percent of the corporate stock of the Petitioner. The only directors of Lyons Towing, Inc., are Bobbye Lyons and her husband, Don Lyons. Mr. Don Lyons is also the vice-president of Lyons Towing, Inc. Mr. Don Lyons is not a "minority person" within the meaning of the definition of that term at Section 288.703(3), Florida Statutes. Mrs. Bobbye Lyons also presently owns 11 percent of the corporate stock of Lyons Autobody, Inc. Her husband, Don Lyons, owns the other 89 percent of the corporate stock of Lyons Autobody, Inc. The only directors of Lyons Autobody, Inc., are Bobbye Lyons and her husband, Don Jones. Mrs. Bobbye Lyons is also the vice-president of Lyons Autobody, Inc. Lyons Autobody, Inc., is not a "minority business enterprise" within the meaning of the definition of that term at Section 288.703(2), Florida Statutes. The Petitioner, Lyons Towing, Inc., shares space with Lyons Autobody, Inc. The Petitioner, Lyons Towing, Inc., leases most of its towing trucks from Lyons Autobody, Inc. Mr. Don Lyons is authorized to sign checks on the Petitioner's checking accounts. Mr. Don Lyons is the co-maker of at least two promissory notes and security agreements on behalf of the Petitioner, Lyons Towing, Inc. The two notes are in the amounts of $36,356.26 and $51,812.65. Mrs. Bobbye Lyons is authorized to sign checks on the checking accounts of Lyons Autobody, Inc. Mrs. Bobbye Lyons and Mr. Don Lyons jointly own at least one of the storage lots on which the Petitioner stores impounded vehicles. The Petitioner corporation, Lyons Towing, Inc., is engaged primarily in the business of towing motor vehicles. Lyons Autobody, Inc., is engaged primarily in the business of repairing wrecked or damaged motor vehicles. Prior to the incorporation of Lyons Towing, Inc., Lyons Autobody, Inc., also engaged in the business of towing motor vehicles. The business of towing motor vehicles and the business of repairing wrecked or damaged vehicles are businesses in associated fields of operation. Mrs. Bobbye Lyons has been married to Mr. Don Lyons since 1975. At the time of their marriage, Mr. Don Lyons was already engaged in business. Mr. Don Lyons and his father had started a business in 1964 that engaged in both repairing wrecked or damaged motor vehicles and in towing motor vehicles. In 1975, Mrs. Bobbye Lyons began to work in her husband's business and continued to do so until 1987. During that period of time Mrs. Bobbye Lyons worked primarily on the towing side of the business, but she also did a little bit of everything in the business, except drive tow trucks. In 1987, Mr. Don Lyons decided to split his business into two separate businesses; one business to be engaged primarily in the business of repairing wrecked and damaged motor vehicles and the other to be engaged primarily in the business of towing motor vehicles. At that time the Petitioner, Lyons Towing, Inc., was incorporated and Mrs. Bobbye Lyons was installed as President and "Chief Operations Officer" of the new corporation. Sometime thereafter, 89 percent of the stock of the Petitioner, Lyons Towing, Inc., was "given" to Mrs. Bobbye Lyons. Mrs. Bobbye Lyons did not make any capital contribution to Lyons Towing, Inc., and did not purchase her shares in that corporation. At least until March 16, 1996, both the Petitioner, Lyons Towing, Inc., and Lyons Autobody, Inc., had a single motor vehicle insurance policy under which all of the vehicles owned by both corporations were co-insured. Mrs. Bobbye Lyons is a high school graduate and a graduate of Clevinger's Business College. She has attended Palm Beach Junior College and has previously been certified as a sworn law enforcement officer. She has been involved in the towing business since 1975 and appears to have sufficient experience and knowledge regarding the towing business to be able to operate a business like Lyons Towing, Inc., without assistance from her husband. Mrs. Bobbye Lyons is a regular and active participant in the day-to- day operations of Lyons Towing, Inc. She is the person who is primarily responsible for the day-to-day operations of Lyons Towing, Inc., and she directly or indirectly supervises and directs all employees of Lyons Towing, Inc. She also supervises and directs the purchase of goods, equipment, business inventory, and services needed in the day-to-day operation of the business. Similarly, she supervises and directs the hiring, firing, and work assignments of all employees. She also establishes employment policies, wages, benefits, and other conditions of employment. She is assisted in this regard by Mr. Allan Gold, who has the title of General Manager of Lyons Towing, Inc. Mr. Gold is subordinate to Mrs. Bobbye Lyons and must receive her approval before he can hire or fire employees, enter into contracts, or purchase equipment. Mrs. Bobbye Lyons makes or participates in all of the major decisions regarding hiring and firing employees, payroll, business expenditures, purchase of equipment, and contract negotiations with customers. In this regard, Mrs. Bobbye Lyons exercises control over the business affairs of Lyons Towing, Inc., on a regular and continuing basis, but always subject to the influence of, and with the tacit approval of, her husband, Mr. Don Lyons. Because of his more extensive experience in the business, Mr. Don Lyons often participates in important business decisions affecting Lyons Towing, Inc., and spends several hours each week providing guidance and assistance in the management of Lyons Towing, Inc. Further, by reason of his status as one of only two board members on the board of directors of Lyons Towing, Inc., he can effectively veto any decision by Mrs. Bobbye Lyons regarding any corporate decision with which he disagrees. And by reason of his status as an officer of Lyons Towing, Inc., and his authority to sign checks on the Lyons Towing, Inc., checking account, he has the power and authority to intervene in the day-to-day operations of the Petitioner corporation.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case denying the certification sought by the Petitioner and dismissing the petition in this case. DONE AND ENTERED this 30th day of August, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1996.
