STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ATPA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 82-795

) STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 15, 1982, in Tallahassee, Florida.

APPEARANCES

For Petitioner: no appearance. 1/

For Respondent: Vernon L. Whittier, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301 ISSUE

Appeal of the denial of Petitioner's request for certification as a Minority Business Enterprise pursuant to Chapter 14-78.05, Florida Administrative Code.

FINDINGS OF FACT

1. Based upon the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. By letter dated March 2, 1982, Respondent, Department of Transportation, advised Petitioner that its application for certification as a Minority Business Enterprise was denied on the basis that it "[l]acks minority ownership and control." By letter dated March 9, 1982, Petitioner, in the person of its Vice President, Charles J. Cedeno, appealed the Respondent's denial.

   
   

3. Pursuant to a notice of hearing dated April 1, 1982, issued by Hearing Officer Charles C. Adams, a hearing on the denial of certification of Petitioner was held on July 7, 1982, in Tallahassee, Florida. Petitioner did not have a representative at that hearing, although based upon a representation from Respondent's counsel, Vernon L. Whittier, Jr., indicating the possibility that Petitioner was considering the possibility of requesting a continuance of the July 7, 1982, hearing, the matter was in fact continued by Hearing Officer Adams

   and rescheduled for hearing by service of a notice of hearing dated July 19, 1982, scheduling the matter for hearing on September 15, 1982, in Tallahassee, Florida. Copies of the notice of hearing were sent to the parties of record and there was no showing that the notice of hearing was returned as being undeliverable.

   
   

4. As noted herein, Petitioner did not appear at the subject hearing herein nor was any communique received from Petitioner indicating that a continuance was being requested. During the hearing, counsel for Respondent made an ore tenus motion to dismiss the Petition on the ground of default as Petitioner failed to appear at the time and place noticed for hearing. That motion was granted by the undersigned.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

6. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

7. The authority of the Respondent is derived from Rule Chapter 14-78, Florida Administrative Code.

   
   

8. The Respondent is authorized to review and either grant or deny applications pursuant to Rule Chapter 14-78, Florida Administrative Code.

   
   

9. Rule Chapter 14-78.5, Florida Administrative Code, provides in pertinent part that:

   
   

   1. To ensure that this rule benefits only [Minority Business Enterprises] MBEs which are owned and controlled in both form and substance by one or more minorities or women, the Department shall certify firms who wish to partici- pate as MBEs under this rule.

      
      

10. Respondent, having concluded that Petitioner lacks minority ownership and control, it is concluded as a matter of law that the Respondent properly denied Petitioner's application for certification as a Minority Business Enterprise. [Chapter 14-78.05(1), Florida Administrative Code.]

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Respondent, Department of Transportation, issue a final order denying Petitioner's application for certification as a Minority Business Enterprise.

RECOMMENDED this 28th day of September, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1982.

ENDNOTE

1/ Although properly noticed, Petitioner or a representative on its behalf, did not appear at the hearing herein.

COPIES FURNISHED:

Vernon L. Whittier, Esquire Department of Transportation The Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32301

APTA, Inc.

7321 North Hamlin

Skokie, Illinois 60076

Paul A. Pappas, Secretary Department of Transportation The Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32301

Docket for Case No: 82-000795

Orders for Case No: 82-000795