Findings Of Fact 1. Petitioner, Atlantic Social Club, Inc., is a corporation organized under the laws of Florida on July 27, 1972. Its Articles of Incorporation, filed with the Secretary of State, reflect it is a corporation not for profit and its purpose is to be concerned with: . . . the needy and underprivileged and to promote and be charitable to those in distress . . . . Petitioner registered with the Florida Department of Revenue on May 31, 1983, and on June 1, 1983, filed an application with DABT for an 11-C alcoholic beverage license which may be issued to, inter alia, social clubs, nonprofit corporations, or clubs devoted to promoting community development, without limitation on the number of licenses issued in this category. Organizations, to qualify, must meet certain standards set out by rule and statute. At the time of filing the application, Petitioner submitted several personal questionnaires executed under oath by the then corporate officers. The questionnaires signed by two officers, Elzie Lee Jackson and David Daniel Riles, indicated that they had never been arrested, charged, or convicted of any offense. However, on April 12, 1977, Mr. Riles had been charged by the State Attorney in Miami, with, on February 12, 1977, carrying a concealed firearm (felony); possession of a firearm by an intoxicated person; and trespass after warning. Documentation submitted also reveals that on October 16, 1982, Mr. Jackson had been arrested at the Atlantic Social Club by state beverage officers for the sale of alcoholic beverages without a license. Neither individual is currently an officer, director, or member of the club. Upon receipt of Petitioner's application, on June 29, 1983, Respondent, in writing, requested that Petitioner submit certain specified additional information necessary for investigation of the application. The information was to be submitted by July 23, 1983. The requested information consisted of a list of club members and a copy of its bylaws. In the interim, Investigator Oliva attempted, by telephone, to contact Mr. Riles to set up an appointment for an interview but could not reach him. When the deadline for submitting the requested information had passed without compliance, Oliva met with Petitioner's representative, Mathew Bothwell, at Respondent's Miami office on July 25, 1983. At this time Bothwell provided the requested membership lists and bylaws as well as records of meetings. At the meeting, Bothwell stated that Petitioner donated money to various charitable organizations, churches, and needy individuals. When asked for records of these donations, Bothwell indicated they did not normally exist but that he would try to provide them. The documentation submitted by Petitioner for consider- ation of the Hearing Officer indicates charitable contributions on: December 30, 1977 - Variety Children's Hospital $200.00 March 28, 1980 - Variety Children's Hospital $100.00 January 16, 1981 - Variety Children's Hospital $100.00 January 7, 1982 - Variety Children's Hospital $100.00 February 28, 1982 - New Jerusalem PBC $200.00 Mr. Bothwell, by affidavit, also contends that the Club has continued to help the needy and unemployed by providing meals and foodstuffs but there is no evidence confirming this from even one recipient of this assistance. Petitioner did produce other club records which included a copy of the bylaws dated July, 1983, the minutes of one meeting held on January 18, 1983, and a list of six members dated July 19, 1983. The bylaws are extremely limited and provide very little guidance for club operation. Certain provisions ordinarily required by rule, such as the method by which members are elected, are missing. Mr. Bothwell explained that the records of meetings, other than that submitted for January 18, 1983, were kept by the Club's secretary and were not available even though they had been requested by Respondent several weeks earlier. At the close of the July 25, 1983 meeting between Oliva and Bothwell, Bothwell was informed that in order for the processing of the Club's application to progress, it would be necessary for Respondent to be furnished: written minutes of all meetings; accounting records, receipts, and other documentary proof of the Club's charitable activities; and affidavits from Riles and Jackson indicating why they had failed to include their arrests on the personal questionnaires they submitted with the application. These requested documents were not furnished to Respondent, but, on October 16, 1980, pursuant to the Order dated October 4, 1984, counsel for Petitioner submitted the membership records, documentary evidence of the $700.00 in contributions referenced above, and affidavits from Bothwell and Singletary to the effect that neither Riles, nor Jackson has any current affiliation with the organization. The membership records provided, kept in a spiral notebook, which go no further than July 12, 1983, reflect 13 members. They also reflect that the 9 older members paid dues of $10.00 per week and in addition, paid money in for savings and dances. The earliest records on membership submitted were dated in January, 1981, and reflected activity from that time up to July 12, 1983. The Club's bank book, which, as of the last entry on May 31, 1983 showed a balance of $94.56, reflected a balance in October, 1982 of almost $6,400.00. No explanation was given for how this sum was disposed of. When, on August 28, 1983, as a part of the ongoing investigation of the license application, Agents Oliva and Delmonte went to Petitioner's indicated address to get the information requested of Bothwell on July 25, they found both front and rear doors locked. Repeated knocking on all doors failed to get a response and it appeared as if the building was unoccupied. As of the present date, Petitioner has failed to provide Respondent with its federal employer's identification number though it promised to do so in the past. On November 28, 1983, Respondent denied Petitioner's application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the application of the Petitioner, Atlantic Social Club, Inc., for an 11-C alcoholic beverage license be DENIED. RECOMMENDED this 27th day of November, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1984. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 George J. Tallianoff, Esquire Suite 600C, Office in the Grove 2699 South Bayshore Drive Miami, Florida 33133 Captain John J. Harris Department of Business Regulation 1350 Northwest 12th Avenue, Room 552 Miami, Florida 33136 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rassmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Aguiar Defense, Inc. was incorporated April 14, 1987, in Florida, with Geny DaSilva Aguiar-Slaughterbeck, the President, owning all of the stock. William S. Slaughterbeck was named Vice-President, Secretary, and Treasurer. Ms. Aguiar- Slaughterbeck subsequently assigned 50 shares (10 percent) of the stock to David E. Knutson when he joined the company. Knutson was made a Vice- President as is William Slaughterbeck. Geny Aguiar-Slaughterbeck was born in Brazil and holds a BS degree in Business Administration from the University of Southern California. She is married to William S. Slaughterbeck. William S. Slaughterbeck has had some 20 years experience in obtaining and administering government contracts, principally in the procurement of material phases of these contracts. He acted as consultant to Petitioner in obtaining its first large contract from the U. S. Department of Commerce to provide, install and service eighty computer installations. David E. Knutson's experience is primarily in aviation; however, he has some financial experience and computer experience. To finance the formation of Aguiar Defense, Geny Aguiar-Slaughterbeck converted two IRA accounts to cash, borrowed some $5,000 on her automobile, converted two mortgages to cash and used credit cards to purchase office furniture and other pre- incorporation expenses. Her total investment in Petitioner is approximately $24,000. Before submitting a bid on the Commerce Department computer contract, Geny DaSilva Acquiar-Slaughterbeck consulted with her husband and Donald Sayban who was employed by Tandy Corporation at a Radio Shack outlet. Sayban provided advice on the type of equipment needed to meet the bid specifications, and prices were obtained on the components needed to fulfill the contract. A large portion of the bid was prepared by William Slaughterbeck who was unemployed at the time and is eminently familiar with bidding on contracts to supply government agencies with equipment and materials. When the Commerce Department contract was awarded to Aguiar Defense, Ms. Aquiar-Slaughterbeck obtained financing from a local bank with the assistance of the owner of the company supplying most of the components needed to assemble the computer stations; Sayban and Knutson traveled to the sites to install and put the computers in operation; and the travel costs for these installations were financed by Knutson who was subsequently reimbursed by Aguiar Defense. Sayban's travel expenses were paid by Aguiar Defense, but his compensation came from the commissions he received on the computer equipment he sold to Aguiar Defense. Prior to starting Aguiar Defense, Ms. Aguiar- Slaughterbeck served as a part-time school teacher, a distributor for Shaklee Products and a distributor of water treatment equipment and chemical sales. Chemical cleaning products were sold to McDill Air Force Base in Tampa, and door-to-door sales of water treatment equipment were made. When Aguiar Defense was incorporated, these latter two activities were continued as part of the Aguiar Defense operation. All of Petitioner's witnesses testified that Mrs. Aguiar-Slaughterbeck has final authority in deciding which government contracts to bid on, the hiring and firing of all personnel and all financial decisions. No evidence to contradict this testimony was presented. Petitioner obtains most of its information on available contracts on which bids are being solicited from Commerce Business Daily which contains a daily list of government procurement invitations, contract awards, subcontracting leads, sales of surplus property and foreign business opportunities (Exhibit 3). The By-Laws of Petitioner (Article V, Section 2), provide that the President shall be the chief executive officer of the corporation, shall have general and active management of the business and affairs of the corporation subject to the decisions of the Board of Directors, and shall preside at all meetings of the shareholders and Board of Directors. Article III, Section 9, of the By-Laws provides that any director may be removed, with or without cause, by a vote of the holders of a majority of the shares entitled to vote at an election of directors. Article II, Sections 1 and 2 of the By-Laws of Petitioner provide for an annual meeting of the shareholders on May 4 of each year and for special meetings when called by the President, the Board of Directors or when requested in writing by the holders of not less than 10 percent of the shares entitled to vote at the meeting. Directors are elected by the shareholders with each shareholder entitled to one vote for each share of stock held. Article II, Section 11 of the By Laws provides that any action that may be taken by the shareholders at an annual or special meeting may be taken without a meeting, without prior notice or without a vote, if consent in writing, setting forth the actions so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or to take such action at which all shares entitled to vote thereon were present and voted. As the holder of ninety percent of the stock, Geny DaSilva Aguiar- Slaughterbeck has control over the Board of Directors by the power to elect or remove any Director by so voting her shares; and the power to effect any corporate decision, even without a meeting of the shareholders or Board of Directors as noted in finding 14 above. No evidence was submitted to indicate that Geny DaSilva Aguiar- Slaughterbeck is a mere figurehead and that the operations of Petitioner are controlled by one who does not qualify as a minority owner. Petitioner is a corporation employing less than 25 persons and having a net value of less than $1,000,000.
The Issue The issue is whether Petitioner Michael A. Crane, d/b/a Accent Builders of Florida, Inc., is entitled to an award of attorney's fees against Respondent, Department of Business and Professional Regulation, pursuant to Section 57.111, Florida Statutes.
Findings Of Fact On October 14, 2005, Petitioner filed a Motion for Reimbursement of Attorney's Fees and Costs. Petitioner seeks reimbursement of attorney's fees and costs incurred in DOAH Case No. 04-4040PL, pursuant to Section 57.111, Florida Statutes. Petitioner is the prevailing party in the underlying proceeding, DOAH Case No. 04-4040PL. On September 23, 2005, the Construction Industry Licensing Board entered its Final Order in the underlying case, in which it adopted the Recommended Order entered in the DOAH proceeding, thereby dismissing the charges that Petitioner had violated certain provisions of Chapter 489, Florida Statutes. In the underlying proceeding, Respondent charged Michael A. Crane with violations of Chapter 489, Florida Statutes, in his capacity as a certified general contractor holding Florida license No. CGC8644. Petitioner had entered into the contract which gave rise to the underlying proceeding as Accent Builders of Florida, Inc. (Accent). Respondent's disciplinary action was not directed at Accent Builders of Florida, Inc., but at Petitioner as the qualifying agent for the company. Petitioner is not a sole proprietor of an unincorporated business. Petitioner is neither a partnership nor a corporation. Petitioner does business in Florida as Accent, but at the time the underlying proceeding was initiated, Petitioner had not applied for and been granted a certificate of authority for Accent through himself as the qualifying agent. In September 2004, while the underlying proceeding was pending, Petitioner applied for and was granted a certificate of authority for Accent with Michael A. Crane as the qualifying agent. Despite the fact that Petitioner was granted a certificate of authority for Accent, the underlying proceeding was brought against the certified general contractor, Michael A. Crane, not against Accent as a corporate entity. In order to determine whether the underlying action brought by Respondent against Petitioner was substantially justified at the time it was initiated by the Agency, the information that was before the probable cause panel that directed the filing of the Administrative Complaint must be examined. In the underlying matter giving rise to Petitioner's request for attorney's fees, the Probable Cause Panel had before it a 188-page Investigative Report, as well as three supplemental Investigative Reports related to the alleged defects in the construction performed by Petitioner. The Probable Cause Panel convened on April 27, 2004, at which time it made a finding of probable cause that Petitioner had violated Subsections 489.129(1)(g)1., (i), (k), and (m), Florida Statutes. The panel members reported that they had reviewed the investigative reports and draft complaints, and were advised by a member of the Attorney General's staff regarding their responsibilities in determining whether probable cause existed to file an Administrative Complaint against Petitioner. The consumer complaint accompanying the Investigative Report alleged that the contractor did not properly supervise the project; that the construction has resulted in numerous leaks; that the steam shower was not installed as required by the manufacturer; that the decking was not installed according to the manufacturer's instructions; and that most of the punch list items had been left unaddressed. The Investigative Report also contained Petitioner's response, which stated that Petitioner was precluded from correcting the deficiencies by the consumer, and that, although responsive to the consumer regarding the leaks, Petitioner saw no damage as a result of the leaks. The Investigative Report contained numerous documents describing the efforts of contractors hired by the consumer to remedy the leaks and alleged defects in construction. The report also included documentation of payments made by the consumer to the various contractors called in to eliminate the problems the consumer was experiencing. The Probable Cause Panel's review of the materials before it resulted in a determination that a reasonable investigation had been conducted, and that a reasonable person could conclude that sufficient evidence existed to charge Petitioner with violations of Chapter 489, Florida Statutes. At the time the Probable Cause Panel reviewed the Investigative Report, it appeared that Petitioner's work had resulted in water damage, and that a valid subcontractor's lien had been placed against the consumer's property resulting in financial harm. The Probable Cause Panel's determination to direct Respondent to file an Administrative Complaint had a reasonable basis in law and fact at the time it was made. Respondent was not a "nominal party" to the underlying proceeding according to the meaning of that term in Subsection 57.111(4)(d)1., Florida Statutes.
The Issue Whether or not the Petitioner, Conduces Club, Inc., is entitled to the issuance of a Series 11-C alcoholic beverage license.
Findings Of Fact The Petitioner, Conduces Club, Inc., a nonprofit corporation incorporated in the State of Florida, has applied to the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, for the issuance of a series 11-C alcoholic beverage license. This license is described in Rule 7A-1.13, Florida Administrative Code, as a club license to sell to members and nonresident guests only. The terms and conditions for the issuance of such a license are as set forth in Subsection 561.20(7)(a), Florida Statutes, and Subsection 565.02(4), Florida Statutes. The Director of the Division of Alcoholic Beverages and Tobacco has denied the application of the Petitioner premised upon the assertion that the Petitioner has failed to meet the requirements set out in the aforementioned sections of the Florida Statutes. The Petitioner has disagreed with that interpretation and a Section 120.57, Florida Statutes, hearing was scheduled and held on April 10, 1979. The crucial language to be considered in determining whether or not the Petitioner should be extended the privilege of operating under a Series 11-C alcoholic beverage license is found in the Subsection 561.20(7)(a), Florida Statutes, which reads as follows: "(7)(a) There shall be no limitation as to the number of licenses issued pursuant to 565.02(4). However, any licenses issued under this section shall be limited to: Subordinate lodges or clubs of national fraternal or benevolent associations; Golf clubs and tennis clubs municipally or privately owned or leased; Nonprofit corporations or clubs devoted to promoting community, municipal, or county development or any phase of community, muni- cipal, or county development; Clubs fostering and promoting the general welfare and prosperity of members of showmen and amusement enterprises; Clubs assisting, promoting, and de- veloping subordinate lodges or clubs of national fraternal or benevolent associa- tions; and Clubs promoting, developing, and main- taining cultural relations of people of the same nationality." (Although the introductory phrase in the above-quoted Subsection makes reference to Subsection 565.02(4), Florida Statutes, as being involved in the process of issuing a license, Subsection 565.02(4), Florida Statutes, true function is the establishment of the requirement that chartered or unincorporated clubs pay an annual state license tax of $400.00, and it is this Subsection 561.20(7)(a), -- Florida Statutes, which establishes those categories of candidates who may receive a Series 11-C alcoholic beverage license.) Of the possible categories for licensure, the one which appears to be the focal point of the controversy is that provision found in Subsection 561.20(7)(a)3., Florida Statutes. In support of its request, the Petitioner presented certain witnesses and items of evidence. Among those items was the testimony of Mrs. E. R. Atwater, Social worker Supervisor with the United States Department of Housing and Urban Development, Housing Management Division, assigned to the Blodgett Community in Jacksonville, Florida. The Blodgett Community is a housing development of some 53 acres which contains 628 housing units with a breakdown of that population containing 301 senior citizens and 1,069 juveniles, with cost of the heads of the households being female. Those persons living in the Blodgett development are described as having a poor economic circumstance. Mrs. Atwater indicated that the Conduces Club, Inc., had on occasion sponsored girls softball teams and boys basketball teams for those young persons living in the Blodgett Community and she had expressed her appreciation in the form of correspondence of January 17, 1979, which is the Petitioner's Exhibit No. 1 admitted into evidence. In addition, Mrs. Atwater indicated that the Conduces Club, Inc., had provided transportation for a trip for the residents of the Blodgett Community to Six Gun Territory located near Ocala, Florida. Arrangements were made for three busses; two of the busses which transported residents on July 16, 1977, and the third bus transported them on August 11, 1977. The trips involved both young people and adults as participants. The letters requesting the assistance of the Conduces Club, Inc., and the confirmation of that request may be found as Petitioner's Exhibits Nos. 2 and 3, admitted into evidence consecutively. The president of the Conduces Club, Inc., Mr. Cornell Tarver, testified in support of the petition. He indicated that the club had been originally formed as the Pacesetter Club but its name was changed in September, 1976, because of a conflict concerning the utilization of the name, which had been preempted by another club. The club was chartered as a nonprofit corporation by the State of Florida on September 22, 1976, under the name, "Conduces Club, Inc." A copy of the Articles of Incorporation may be found as Respondent's Exhibit No. 1 admitted into evidence. Mr. Tarver indicated that the purpose of the club was to help the youth and senior citizens and principally the kids of the Blodgett Community, to include organizing softball and baseball and providing uniforms. He also testified that a certain banquet was hold for these young persons and the parents of those children were invited to attend, and enough food was prepared to food cost of the individuals who reside in the Blodgett Community. He produced certain plaques and trophies awarded to the club. The plague was given by the mothers of the children in the sports programs and the trophy was presented by an unaffiliated club that the Conduces Club had helped to organize. The witness, Tarver, indicated that the club was financed by functions such as dances, fish fries, food sales in their club house, dues of the members and fines. The club itself has twenty-seven members. Other projects the club has participated in, were the contribution of money to local churches and the donation of an organ to one of those churches. On December 16, 1977, the club contributed $500.00 to the National Association for the Advancement of Colored People. The club house is open every day and there are certain activities through the week, to include club meetings and entertainment for the benefit of club members. The members run the club without compensation and the club does not maintain any regular employees. The official statement of the club's purposes may be found in the Respondent's Exhibit No. 2 admitted into evidence. This is a composite exhibit which contains part of the application for the license and a copy of the Bylaws. The objectives of the corporation may be found in Article II of the Bylaws and the activities of the corporation may be found in Article VIII of the Bylaws. Article II states: "The objectives of this organization shall be as follows: To unite fraternally all persons who the membership may from time to time take into the club. To promote brotherhood, sportsmanship, friendship and charity for the membership and their families. To strive at all times to promote and protect the welfare of every member. To promote a spirit of cooperation between its members and the public. To honor outstanding individuals in the City of Jacksonville for their achievement. To do anything necessary, including, but not limited to, the ownership of property, real and personal, for the accomplishment of the foregoing objectives, or those which may be recognized as proper and legal objectives of this club, all of which shall be consistent with the laws, the public interest and the interest of its mergers. To sue or to be sued as a natural person. To bear a seal to be placed on all of the club's official correspondence." Article VIII states: "COMMITTEES Section 1. The following standing committees and such other committees as the directors may, from time to time deem necessary, shall be appointed by the president of the association. Social Committee Athletic Committee Scholarship Committee The duties of the standing committee shall include the following, which shall not, however, prelude other activities by such committees. Section 2. The social committee shall be composed of six members. It shall be the duty of this canted to supervise the use of club room and to plan such club meetings of a purely social nature as it may deem necessary. These may include parties, picnics, and other such social or athletic events sponsored by the organization. Section 3. The athletic committee shall be composed of three members. It shall be the duty of this committee to supervise and manage all athletic activities for the association, including but not limited to management of various athletic teams sponsored by the club. Section 4. The scholarships committee shall be composed of six members. It shall be the duty of this committee to screen applicants for scholarships and deserving students in Duval County, Florida, and to make recommendations to the general membership of its findings of worthwhile recipients of scholarships, or awards." It can be seen that the Petitioner's members have a commendable concern for the community in which the club has its principal base of operation and this concern has been expressed through the activities of the club members which have been described in the course of this Recommended Order; however, it appears from an examination of the testimony in this hearing and the official statement, that is, the Bylaws of this corporation, that the principal purpose of the club is as stated by the Article II B. of the Bylaws, which language states, "To promote brotherhood, sportsmanship, friendship and charity for the membership and their families," and this attitude carries over to foster good relations between those members and the members of the general public. Therefore, the Petitioner is not perceived as being a club which meets the criterion, "devoted to promoting community, municipal or county development or any phase of community, municipal or county development." See Subsection 561.20(7)(a)3., Florida Statutes. This conclusion is reached in examining the definition of the word "devoted," as found in Webster's New World Dictionary of the American Language, College Edition. That definition states that to be devoted one must be, "1. vowed; dedicated; consecrated. 2. very loyal; faithful." and although the community concern of the Petitioner is very high, it does not reach the level of devotion. Consequently, the Director of the Division of Alcoholic Beverages and Tobacco was correct in denying the application for a Series 11-C alcoholic beverage license.
Recommendation It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco deny the Petitioner, Conduces Club, Inc.'s request for a Series 11-C alcoholic beverage license. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jennings H. Best, Esquire 3410 North Myrtle Avenue Jacksonville, Florida 32209 Francis Bayley, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. M. Ogonowski Richard P. Daniel Building, Room 514 111 East Coast Line Drive Jacksonville, Florida 32202
The Issue The issue for determination at final hearing was whether Petitioner should be certified as a minority business enterprise pursuant to Section 287.09451, Florida Statutes, and Chapter 38A- 20, Florida Administrative Code, by the Office of the Supplier Diversity of the Department of Management Services.
Findings Of Fact Petitioner is a Florida corporation seeking certification in the field of "Sales and Installation of Network and Telephone Cabling" under the minority status of female-owned company. Fifty-one percent of Petitioner's stock is owned by Cynthia Martin, a white female, and 49 percent is owned by her husband, a white male. Until shortly before submitting its application, Petitioner corporation had previously operated as a sole proprietorship under the ownership of Keith Martin. The majority of the assets of Petitioner came from the previous sole proprietorship when Petitioner was formed. According to Mrs. Martin's testimony and payroll information submitted by Petitioner, Keith Martin received twice the salary of Cynthia Martin. Cynthia Martin is a full-time employee of the State of Florida. There is no evidence of employment for Keith Martin other than with Petitioner. The corporate documents in evidence reflect that since incorporation Cynthia Martin has been vice-president and secretary of the corporation, while Keith Martin has been president and treasurer. Petitioner's checks may be signed by either Keith Martin or Cynthia Martin and only one signature is required on each corporate check. Petitioner's Articles of Incorporation provide that the number of directors shall be determined in the By-Laws. The initial directors were Keith Martin and Cynthia Martin. The By- Laws provide that the corporation shall be managed by two directors, and that the number of directors may be increased only by amendment of the By-Laws. Also, a majority of the directors shall constitute a quorum for the transaction of business. This provision of the By-Laws has not been changed. At the organizational meeting of Petitioner, Keith Martin was elected president and treasurer, and Cynthia Martin was elected vice- president and secretary. No other documents were introduced into evidence reflecting any changes to the articles of incorporation or the By-Laws. The documentation submitted by Petitioner, and prepared by Cynthia Martin, consistently reflect Keith Martin as the president of the company and Cynthia Martin as vice-president. Cynthia Martin's duties include bookkeeping and performing administrative functions. Keith Martin's duties include the installation of cabling for local area networks and phone systems, picking up goods to be used on contracts, preparing daily timesheets and generating the paperwork necessary for billing clients, preparing quotations for clients, consulting with clients to determine needs, installation of phone systems and providing sales, service, and repair for clients. Cynthia Martin's duties for Petitioner are performed on her days off from her full-time employment, and on nights and weekends. The fact that Cynthia Martin owns 51 percent of the stock of Petitioner is important at stockholder meetings. At such meetings, she is entitled to one vote for each share owned, thereby allowing her to control stockholder meetings and effectively determine the directors of the company. The company is managed by the directors, while the day-to-day operations are managed by the officers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Office of Supplier Diversity enter a final order denying Tele-Net Communications, Inc.'s, application to be a certified minority business enterprise. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 25th day of October, 2000. COPIES FURNISHED: O. Earl Black, Jr., Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Cynthia Martin Tele-Net Communications, Inc. Post Office Box 11784 Jacksonville, Florida 32239 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Windell Paige, Director Office of Supplier Diversity Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether or not Petitioners are entitled to an award of attorney's fees and costs.
Findings Of Fact On October 21, 1983, Derek and Lucy Lea entered into a sales contract to purchase the Wal-Mar Hotel that was listed for sale with the Petitioners. The Leas retained an attorney and the transaction closed on December 15, 1983. Three months later, due to low revenues, the Leas defaulted on the mortgage and the seller foreclosed. The Leas filed a civil action in circuit court against Petitioners for misrepresenting the property, which action was dismissed. Petitioners denied the allegations filed by the Leas. On July 29, 1986, Respondent, Florida Real Estate Commission, received a complaint filed by the Leas which was investigated. Following Respondent's investigation, the Lea's complaint was forwarded to a probable cause panel and the panel determined that probable cause did not exist to believe that a violation of the real estate licensing law had occurred and a closing order was entered on February 18, 1987, dismissing the complaint. The Leas refiled their civil complaint and alleged that Petitioners misrepresented and overstated the per night room rate, the past occupancy rates, the gross income rates and future reservations; that Petitioners knew or should have known that the acts and statements were false and incomplete at the time made and that the Leas acted in reliance of Petitioners representations in purchasing the Wal-Mar Motel. On or about August 5, 1987, the Leas obtained a final judgment for $5,250.00 against Petitioners, Dynamic Realty, Inc. and Jay H. Miller, which judgment was satisfied. A copy of the judgment, and satisfaction thereof was refiled with the Respondent which evidenced that the Petitioners paid the judgment. The Leas refiled their complaint with Respondent and on September 20, 1988, the Leas complaint was again reviewed by the probable cause panel. The probable cause panel determined that probable cause existed to believe that based on the documentation presented, including the civil judgment entered against Petitioners which was satisfied, and a review of the investigative report, adequate facts existed to support a charge of fraud through breach of trust in a business transaction and Respondent filed Administrative Complaints on October 4, 1988, alleging that Petitioners engaged in fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction, in violation of Subsections 475.25(1)(b), (d) and (k), Florida Statutes, by virtue of Petitioners' misrepresentation in overstating the various financial data relative to the Leas purchase of the Wal-Mar Hotel. Petitioners incurred legal fees and costs in the amount of $4,058.00 to litigate the Administrative Complaint filed by Respondent. The amount expended by Petitioners for legal fees and costs was reasonable.
The Issue The issue is whether Petitioner is entitled to certification as a minority business enterprise.
Findings Of Fact By application dated February 6, 1998, Petitioner requested certification as a minority business enterprise. Respondent received the application on May 20, 1998, and denied the application on July 31, 1998. In denying the application, Respondent cited several reasons, including various rules, for why it was denying Petitioner's request for minority business certification. The letter cites Rules 38A-20.001(8) (statutory definition of "minority business enterprise") and (15) (lack of real control); and 38A-20.005(2) (ownership tests) and (3)(a) (control subject to restrictions), (b) (determining quorum of board of directors), (c) (minorities must be sufficiently capable and responsible to maintain control), and (d) (control may not be distributed among non-minority family members so that minority lacks dominant responsibility for management and daily operations, including purchase of inventory and equipment and financial control). Respondent does not dispute that Darlene S. Maki is a minority--i.e, female--and that Petitioner is a "small business concern." The application discloses that Petitioner is a Florida corporation in business as a machine shop. The application discloses that the only minority associated with the corporation is Ms. Maki, who at all times has owned 51 percent of the stock and serves as the president and treasurer. Initially, Mr. Maki's husband owned 14 percent of the shares; Mr. Rodhe owned 12.5 percent of the shares; Ms. Maki's other son, Michael Gritton, owned 12.5 percent of the shares; and Ronald Maki owned 10 percent of the shares. The application states that the initial board of directors consisted of three persons: Ms. Maki; her husband, Mark Maki; and one of Ms. Maki's sons, Randy L. Rodhe. In fact, the original board of directors consisted of Ms. Maki, her husband, her two sons, and Ronald Maki, the brother of Ms. Maki's husband. Petitioner is a family-owned and -operated business. Originally, Ms. Maki's husband served as vice-president, and Mr. Rodhe as secretary. The owners have had varying degrees of involvement in the corporation, ranging from Ms. Maki, who has been most involved, to Ronald Maki, whose involvement has been limited to his initial investment of $25,000. The only other persons to contribute cash for their shares were Ms. Maki and her husband. According to the application, Ms. Maki contributed $18,500, and her husband contributed $8000. The application understates their cash contributions. Individually, Ms. Maki contributed $32,000 in cash, which she raised by liquidating her Section 401(k) plan ($20,000) and bonds ($12,000). Individually, Ms. Maki's husband contributed $8000 in cash. Jointly, Ms. Maki and her husband contributed another $60,000 in cash, consisting of $30,000 in loan proceeds from a mortgage on their jointly owned home and $30,000 in charges on their joint credit cards. Prior to incorporating Petitioner in August 1997, Ms. Maki, who is 56 years old, had 20 years' experience working in a machine shop operating noncomputerized drill presses. She also worked five years as an assistant vice-president of a bank, supervising mortgage loan operations. Although Ms. Maki does not know how to operate the newer computer-assisted machines, her background would permit her to learn to do so with minimal training. However, due to a progressively debilitating disease that struck her in 1989, Ms. Maki is confined to a wheelchair and lacks feeling in her hands. Thus, she cannot efficiently operate the older manual machines or newer computer-assisted machines used in machine shops. Ms. Maki's husband lacks any experience in machining tools. He has worked over 25 years as an automobile mechanic. His brother has no experience in machining tools; he is in the construction business in Miami. Ms. Maki's sons have considerable experience in machining tools, including training and 14 and 20 years' experience in using the newer, more complicated computer-assisted equipment, which Petitioner owns. They received their stock in return for their agreement to work for wages well below what they could have earned elsewhere. Given the minimal cash flow and concerns about jeopardizing her Social Security disability payments, Ms. Maki did not withdraw money from Petitioner. However, her husband received a salary of an undisclosed amount until September 1998. Her sons also received a salary, but only about $100 weekly, mostly to cover their expenses. In May 1998, Mr. Rodhe terminated his involvement with Petitioner. At that time, he transferred his stock to Petitioner, apparently without any payment to him. The effect of this transfer was to increase Ms. Maki's percentage ownership of Petitioner. At the time of Mr. Rodhe's departure, his brother replaced him as secretary, and the board of directors were reduced to four members. These are the present officers and directors of Petitioner. Pursuant to the articles of incorporation, the board of directors directs the affairs of Petitioner. Nothing in the articles of incorporation overrides the provisions of Section 607.0824(1), Florida Statutes, which provides that a majority of directors constitute a quorum, or Section 607.0808(1), Florida Statutes, which provides that the shareholders may remove directors without cause. Ms. Maki and her husband are each authorized signatories of checks drawn on Petitioner's checking account. Each check requires only one signature. However, Mr. Maki does not typically sign the checks, consistent with his relatively little involvement with Petitioner. Someone at the bank suggested to Ms. Maki that Petitioner should authorize her husband to sign checks in case anything happened to Ms. Maki. Ms. Maki and her husband are the guarantors on a lease for a major piece of equipment used by Petitioner. In a later lease, the lender allowed only Ms. Maki to sign as a guarantor. Business has slowly been building. In July 1998, Petitioner hired a machinist and purchased another machine. When confronting a major decision, such as purchasing a new machine, Ms. Maki presents the issue to the board of directors, which then makes the decision. Ms. Maki solely handles hiring, firing, payroll, purchasing material, bidding, and scheduling jobs. She is present at the shop every workday from 7:30 AM to 4:30 PM and supervises all of the activities in the shop.
Recommendation It is RECOMMENDED that the Minority Business Advocacy and Assistance Office enter a final order denying Petitioner's application for certification as a minority business enterprise. DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 25th day of January, 1999. COPIES FURNISHED: Darlene Maki Qualified Representative RGM Precision Machine, Inc. 18923 Titus Road Hudson, Florida 34667 Joseph L. Shields Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Mary B. Hooks Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
Findings Of Fact Based upon the testimony of the witness, and the record in DOAH Case Number 91-5892C, the following findings of fact are made: Petitioner, a non attorney litigant, seeks an award of attorney's fees and costs exceeding $37,000 under Section 57.111, Florida Statutes (1991). Petitioner did not offer evidence that he expended 250 hours performing research and other preparation for the Administrative Hearing in DOAH Case Number 91-5892C, which was not held. Likewise, Petitioner did not offer evidence that $150.00 an hour, the rate which he seeks to be compensated, was a reasonable fee as evidenced by either the time, skill or the complexity of the issues involved in the above- referenced case. Finally, Petitioner did not present evidence which establishes that he is a small business party. While Petitioner referred to the fact that he, at times, does odd jobs for neighbors, there was no showing that he operated a business and, at best, he performed casual labor for neighbors. Petitioner admitted, during the hearing, that there was a criminal prosecution filed against him which was nolle prosequi by the local state attorney's office around May 13, 1992. On June 18, 1992, Respondent filed a Motion To Relinquish Jurisdiction asking that the Division of Administrative Hearings close its case file based on the fact that the abuse report, which was the focus of Case Number 91-5892C was reclassified to "closed without classification". That motion was granted and the Division's case file was closed. Respondent reclassified the report after the criminal charges were dropped due to evidence discovered during the course of the criminal investigation. Specifically, one of the key witnesses during the criminal case recanted the story which formed the basis of the criminal charge and the alleged victim admitted to being a problem child which resulted in strict disciplinary action being taken against him. As a result of the discipline, the alleged abuse victim concocted the abuse allegation. Respondent was substantially justified and had a reasonable factual basis to issue and classify the subject abuse report as proposed confirmed at the time that it was initiated (by Respondent). However, once the factual underpinnings of the criminal case were recanted by the alleged child victim, Respondent immediately took action to reclassify the report which obviated the necessity for holding a formal hearing in DOAH Case Number 91-5892C.
