STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 87-1956
) OGLESBY CONSTRUCTION, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on January 5, 1988, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Judy Rice, Esquire
Senior Attorney State of Florida
Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 3239-0458
For Respondent: Roger L. Sabo, Esquire
MILLISOR & NOBIL
The Huntington Center
41 South High Street, Suite 215 Columbus, Ohio 43215
This cause arose upon an amended petition filed by the Department of Transportation whereby it seeks to deny renewal of the Respondent's certification as a Disadvantaged Business Enterprise. The basis for this position is that the Respondent allegedly exceeds the size limits to qualify as "a small business concern" for purposes of Chapter 14ER87-5(d)(a), Florida Administrative Code and Section 339.085(1)(a), Florida Statutes. The factual basis for this denial of recertification is Respondent Oglesby Construction, Inc.'s (Oglesby) alleged average annual gross revenue receipts over the preceding three years, in excess of $14,000,000. Under pertinent state and federal law, cited below, a certified Disadvantaged Business Enterprise (DBE) contractor can lose such certification if that entity's gross receipts, over the most recent three years, average in excess of $14,000,000. Exceeding that size limit renders such a firm unqualified as a "small business concern" under the above cited rule and statutory authority, which status is necessary, in addition to the requirement that majority ownership of the business be in the hands of members of a protected minority, in order for the business to qualify as a DBE.
The Department originally denied recertification of Oglesby on the basis that its three year gross revenue receipts exceeded the average gross revenue threshold for it to be considered a valid "specialty trade contractor" as a DBE. That ground for denial of recertification was receded from and abandoned upon the allowed Amendment of the Petition denying recertification on the above- stated ground.
A number of pre-hearing motions were filed by the parties, including a Motion to Dismiss, a Motion for Summary Disposition, and a Motion to Compel Production of Certain Documents. These motions were disposed of prior to hearing, as was Oglesby's Motion to Dismiss, for reasons discussed in the conclusions of law infra. After an agreed-upon continuance, the cause came on for hearing on the above date. The Department presented five exhibits, which were admitted into evidence. Oglesby Construction, Inc. , presented the testimony of three witnesses and thirty exhibits. Exhibits 5, 12, 19, and 20 were not admitted. The parties obtained a transcript of the proceedings and an extended briefing schedule was allowed based upon a duly approved, post-hearing motion. The Proposed Findings of Fact submitted by the parties are ruled upon in this Recommended Order and are once again treated specifically in the appendix attached hereto and incorporated by reference herein.
The general issue to be resolved in this proceeding concerns, of course, whether Oglesby Construction, Inc., remains entitled to certification as a disadvantaged business enterprise. Included within that issue is the issue of whether its size, as measured by its average gross receipts for the most recent three year period is such that it exceeds permissible limits provided for by statute and by rule as necessary to qualification as a DBE. It is undisputed that Oglesby has average annual gross receipts of less than $17,000,000, the former upper limit for qualification as a "small business concern," necessary to be shown for DBE status. That $17,000,000 limit was in effect on February 18, 1987, the date Oglesby applied for recertification, but was revised downward to a $14,000,000 limit by act of Congress and the Florida Legislature, and by DOT rule, several months later, which revision resulted in the amended petition being filed by DOT based upon that new $14,000,000 threshold. The issue thus arises as to whether the outcome of the certification question at hand should be governed by the former law prevailing at the time the application was filed, or that prevailing currently and when the amended petition by DOT was filed.
FINDINGS OF FACT
The Respondent, Oglesby Construction, Inc., (Oglesby) is a company with its ownership controlled by members of a protected minority. Its home office is in Norwalk, Ohio, and it also has an office in Sanford, Florida. It has been certified as a "disadvantaged business enterprise" (DBE) under pertinent regulations of the U.S. Department of Transportation, as well as State Transportation Departments in twelve or thirteen states, including Florida.
Prior to 1986, the company was engaged in various types of concrete work and pavement marking jobs. Although Oglesby typically maintained several hundred contracts or ongoing jobs on its books, each job would be of relatively small dollar value and performance time. Recently, however, Oglesby has been working toward becoming a "prime" contractor, successfully bidding on larger jobs. It was successful bidding on four such projects in 1986 and 1987 which had been reserved for bidding on by minority controlled companies.
Oglesby has been certified as a DBE in Florida since 1983. On January 26, 1987, Oglesby was advised by the Florida Department of Transportation that
its certification "will expire" on February 18, 1987. Oglesby, in fact, because it was aware that certification had to be renewed or reapplied for annually, had already submitted its application on January 2, 1987. It included in that application indication of its gross receipts for the years 1983, 1984, and 1985. Those numbers, when averaged together, produced an average gross revenue figure of $10,491,778. Oglesby maintains that it did not know its 1986 gross revenue figure, for purposes of the three year average gross revenue, for the most recent three years, required to be shown on the application by the Department's rules, because its fiscal year ended January 31, 1987.
On March 26, 1987, Oglesby's application for recertification was rejected by the Department because it did not meet the definition of a "specialty contractor" or "small business concern," for purposes of Rule 14- 78.05, Florida Administrative Code. A hearing was requested by Oglesby to contest this denial of certification.
Then, on May 8, 1987, the Department circulated a memorandum to all DBE contractors stating generally that the effect of the Surface Transportation Act of 1987 (Sturra) required several changes to the Disadvantaged Business Enterprise program. Thus, contractors were asked to certify their firms' receipts for the last three years. Oglesby did so and showed receipts totaling
$44,320,469 for the years 1984, 1985, and 1986. These gross receipts for the three years thus averaged $14,773,049. The Department, upon receiving this information, and after passage of the Sturra Act and a statute by the Florida Legislature incorporating those standards by reference, together with a related rule by the Department, moved to amend the basis for its denial to include, as a reason for decertification, or failure to certify, that the Respondent had exceeded the new $14,000,000 average revenue size standards incorporated in the more recent legislation. Prior to this legislative change and at the time Oglesby applied for recertification in January, 1987, the standard had been
$17,000,000 average three year gross revenue receipts, instead of $14,000,000.
The Department, by pleading dated August 24, 1987, had withdrawn its original grounds for denial and amended the grounds to the above-mentioned size issue of $14,000,000. Because the parties did not wish to go to hearing until January 1988, and ample time remained for Oglesby to conform its proof to the new allegations in the amended pleading, the Motion for Leave to Amend was granted. Thus the amended ground on which the Department maintains that Oglesby's application for recertification should be denied is that the company, for purposes of DBE certification, is no longer a small business concern, as defined by the Department's rule and state and federal law incorporated by reference.
On April 2, 1987, when the size limit for DBE firms was lowered from
$17,000,000 to $14,000,000, the new standard was immediately adopted by the Florida Legislature and, in turn, by the Department's rule. When Oglesby applied to the Department in early 1987, it did not include its 1986 gross receipts revenue figure of $18,516,598. Although Oglesby's fiscal records are computerized, Oglesby maintained that it did not yet, at the time of application in January 1987, have a complete 1986 revenue figure so instead listed the 1985 revenue receipt figure of $18,037,348. The 1984 receipts and 1983 receipts were
$8,338,017 and $5,099,060 respectively. The inclusion of the significantly lower 1983 revenue receipts brought the three year average for Oglesby down to
$10,491,778. In any event, although Oglesby may not have had the 1986 revenue figure immediately available upon application date, it was on notice that its revenue receipts for the year prior to that, 1985, exceeded even the $17,000,000 size limit for DBE contracting firms and thus was on notice that it might be
approaching the end of its DBE status even had not the revenue size limits been lowered in the spring and summer of 1987.
In any event, Oglesby's audited financial statements submitted indicate that Oglesby received $18,037,348 in construction revenue in 1985. The 1986 figures were supplied to the department due to a request made to all certified DBE's when the Department learned that the size limits were being revised downward by federal and state legislation in May of 1987. That audited financial statement figure for 1986 showed a gross revenue received of
$18,399,844 in construction income, and $116,754 in equipment rental, totaling
$18,516,598 gross revenues for 1986. When these amounts are averaged with the gross revenue figure listed in Oglesby's application for 1984 of $8,338,017, the average gross revenue receipts for the company for the preceding three fiscal years before application, is $14,963,987.
Each year Oglesby was advised by the Department in the "certification notice," by which Oglesby was informed by the Department that its certification needed to be renewed, that its certification was "subject to continued eligibility" and further that its certification was "subject to actions of any other governmental agencies which may affect the minority status" of the company. Thus each year when Oglesby applied for and received DBE certification, it was on notice of these conditions on that certification, both by advisement of the Department's notices and by existing law.
Oglesby is the only previously certified DBE which, at the time of hearing, exceeding the $14,000,000 average gross revenue size limit. Under the new federal law referenced above, incorporated by reference by the Florida Legislature and the State Department of Transportation rule at issue, an adjustment for inflation is allowed, to be made by the U.S. Secretary of Transportation. The Department, at the request of Oglesby, inquired of the federal government whether any such adjustment for inflation had been made. No such adjustments had been made by the U.S. Department of Transportation Secretary as of January 5, 1988. On November 4, 1987, a memorandum, (in evidence as Respondent's Exhibit 11) from the Federal Highway Administrator, affirmed that the inflation adjustment had not been defined as yet and would not apply until a method for arriving at an inflation adjustment is developed.
The Department also contacted the Federal Highway Administration in order to determine whether an exception on the size limits required by the federal statute and pertinent regulation could be made in Oglesby's case. This was because Oglesby had made certain contractual obligations to buy out the white minority shareholders and purchase or lease a new facility supposedly based on, in part, its reliance on continued DBE status. The Department referenced these concerns of Oglesby in its request to the Federal Highway Administration for an interpretation regarding the applicability of the
$14,000,000 revenue limit, but was advised, in effect, that the $14,000,000 limit was strictly interpreted because the response to the request merely amounted to a recitation of the statute and pertinent federal rule providing for that limit and how to calculate it. (See Respondent's Exhibits 9 and 10.) Additionally, Respondent's Exhibit 11, a memorandum of November 4, 1987, from the Federal Highway Administration signed by one R. A. Barnhart, in a like vein, merely indicated a strict interpretation of the federal rule cited below providing for the $14,000,000 average gross revenue limit on DBE status. This federal policy of strictly interpreting the $14,000,000 limit is somewhat borne out by the fact that the example in the federal rule itself, concerning how to apply that limit, with the result that the example firm is not entitled to DBE
status, involved an average three year gross income of more than $14,000,000, but less than the three year average gross revenue of Oglesby, found above.
The Department has a policy of strictly enforcing the certification requirements. The failure to comply with the federal regulations regarding DBE certification could subject the Department to withdrawal of federal funds from road building projects. Last year the Department received about $600,000,000 in federal funds and the federal government independently audits and reviews the Department's DBE certification decisions. The Department thus has not made any exception from the certification requirements for any firms. Indeed, in analogous circumstances, there have been Department-certified DBE specialty contractor firms who have outgrown their 2.5 million dollar revenue size standards which are applicable to firms in that category. These firms have not had their certifications renewed, that is, they have "graduated" from the Department's DBE program without exception and without dispute.
It is the intent of the Disadvantaged Business Enterprise Program that firms participating in that program, will, as they acquire and perform contracting jobs for the Department, grow in size in terms of annual revenues and grow in expertise and competence in public contracting, eventually "graduate" in terms of revenue volume and contracting expertise to prime contractor status and will no longer be disadvantaged business enterprises. In this connection, Oglesby has recently entered into four prime contracts which are not affected by the result of these proceedings. In fact, no work already undertaken by Oglesby under contract will be affected. Even if it is not certified as a DBE, Oglesby may continue to contract with the Department as a subcontractor or a prime contractor.
Mr. Mason P. Oglesby, the Petitioner's president, is a competent concrete construction contractor and has been in that business for some thirty years. He is also president of North Coast Eighty-Eight, Inc. Prior to any association with the DBE program, he managed the largest construction project his company has engaged in, which was a project involving construction at the Cincinnati, Ohio, Airport. His firm achieved DBE certification in Ohio in the early 1980's and has been so certified ever since. Oglesby has been certified in twelve or thirteen different states and has utilized 700 to 1000 part-time and full-time employees in a given year. The company does a high volume of work, including many large contracting jobs, and is large enough so that its president does not maintain personal familiarity with the nature of all its jobs contracted for in Ohio, Florida, and other states, but rather maintains a computerized listing of projects which describes the nature of work involved. The company currently has jobs in progress in Pennsylvania, Georgia, Ohio, North Carolina, South Carolina, and West Virginia and in twenty-four counties in Florida simultaneously. Mr. Oglesby closely monitors the dollar volume of work his company contracts for in an intentional effort to keep his firm within the gross revenue guidelines of the DBE program.
One of the bases for Oglesby's seeking an exception to those size rules, through this proceeding, is based upon the fact that it entered into a contract to relocate its offices because, for several years, Oglesby has had problems with DBE certification with some states, related to Oglesby renting office space from the white minority owners of Oglesby. Thus the new offices are rented from North Coast Eighty-Eight, Inc., whose president is Mason Oglesby himself. The rental lease for those premises was executed on June 1, 1987, after Oglesby had already been advised by the Department that it no longer met the requirements for DBE certification. Thus, it has not been established that Oglesby underwent any additional expense or other form of detriment involved in
the relocation of its offices in justifiable reliance on continued DBE certification. Oglesby also maintains that it made the related business decision to buy out the white minority shareholders in reliance on its continued DBE certification by the Florida DOT. Oglesby, however, made the business decision to undertake that buy-out and the relocation of its offices with full knowledge that its revenues for past two consecutive years were over $18,000,000 each year. Thus it was on notice that, due to a growth in its business, it would soon exceed even the former $17,000,000 gross revenue size standard and, with the advent of its 1986 gross revenues in excess of $18,000,000, was already in excess of the existing new $14,000,000 standard. Thus Oglesby Construction, Inc., entered into these arrangements with the knowledge that the company would soon be ineligible for the DBE program anyway. In fact, Oglesby currently is successful as a prime contractor in obtaining jobs which are not DBE related and has developed considerable concrete and construction expertise in operating its construction business as a public works contractor.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1987).
Rule 14-78.007,(3), Florida Administrative Code, provides that "certification of DBE status shall be for a maximum of one year." Subsection
of that rule provides that certification is conditioned upon continued eligibility..." Thus Oglesby and similarly situated DBE's have to apply for certification every year. There is no continuing licensure or certification as a DBE. Applicants for licensure or, in this context, certification, as a DBE have the burden of establishing entitlement thereto. See Department of Transportation vs. J. W. C. Company, Inc., 396 So.2d, 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So.2d, 349 (Fla. 1st DCA 1977).
A "Disadvantaged Business Enterprise" (DBE) is defined in Rule 14- 78.002(3), Florida Administrative Code:
(3)
'Disadvantaged Business Enterprise' or 'DBE' means a small business concern:
which is at least 51 percent owned by one or more socially and economically dis- advantaged individuals, or, in the case of a publicly owned business, at least 51 percent of which is owned by one or more socially and economically disadvantaged individuals; and
whose management and daily business operation are controlled by one or more of the socially and economically disadvantaged individuals who own it.
There is no question in this proceeding that the Petitioner meets the standards for ownership by socially or economically disadvantaged individuals in terms of the majority of its stock being owned by a member of the black minority, a recognized socially and economically disadvantaged group, according to the definitions in paragraph (1) of this rule. The issue really involves whether or not Oglesby Construction, Inc., is "a small business concern" for
purposes of the above definition. In that regard, "small business concern" is defined in Rule 14-78.002(2), Florida Administrative Code, as:
... Those concerns as defined under Section
3 of the Small Business Act (15 USC 632) and Title 13 CFR part 121, which regulations are hereby incorporated by reference and made a part of these rules; except that such terms shall not include any concern or group of concerns controlled by the same socially and economically disadvantaged individual or individuals which have average annual gross receipts over the preceding three fiscal years in excess of $14,000,000, as adjusted by the Secretary of the United States Department of Transportation for inflation.
Title 13 CFR part 121.2(c)(1), provides:
(c)(1) 'Annual receipts of a concern which has been in business for three or more complete fiscal years is the annual average gross revenue of the concern taken for the last three fiscal years. For the purpose of this definition, gross revenue of the concern includes revenues from sales of products and services, interest, rents, fees, commissions and/or whatever other sources derived, but less returns and allowances, sales of fixed assets, inter-affiliates, and taxes collected for remittance (and if due, remitted) to a third party. Such revenues shall be measured as entered on the regular books of account of the concern whether on a cash, accrual, or other basis of accounting acceptable to the
U.S. Treasury Department for the purpose of supporting federal income tax returns, except when a change in accounting method from cash to accrual or accrual to cash has taken place during such three year period, or when the completed contract method has been used.
Oglesby's annual receipts for the past three years were $8,338,01 for 1984, $18,037,348 for 1985, and $18,516,598 for 1986. Its average annual gross receipts for those years is thus $14,963,987, in excess of $14,000,000.
The Federal-Aid Highway Act of 1987, cited as the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Sturra), public law 100-17, enacted April 2, 1987, provides, at Section 106(c) that:
Disadvantaged Business Enterprise
(a) Small Business Concern. - The term 'small business concern' has the meaning such term has under Section 3 of the Small Business Act (15 USC 692): except that such terms shall not include any concern or group of concerns
controlled by the same socially and economically disadvantaged individual or individuals which has average annual gross receipts over the preceding three fiscal years in excess of $14,000,000, as adjusted by the Secretary for Inflation...
The United States Department of Transportation Regulation embodying the Sturra gross receipts limit provides at 49 CFR part 23 that:
(Federal Register, Volume 52, No. 203, of Wednesday, October 21, 1987.)
Sub-Section 23.61 [Amended].
The purpose of this sub-part is to implement Section 106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Pub. L. 100-17) so that,...
Sub-Section 23.62 [Amended].
'Small Business Concern'... except that a small business concern shall not include any concern or groups of concerns controlled by the same socially and economically disadvantaged individual or individuals which has annual average gross receipts in excess of $14,000,000 over the previous three fiscal years. The Secretary shall adjust this figure from time to time for inflation .
Sub-Section 23.63 Applicability.
This sub-part applies to all DOT financial assistance in the following categories that recipients expend in DOT-assisted contracts:
(a) Federal-Aid Highway Funds authorized by Title I of the act: ...
The Florida Department of Transportation, the "recipient" for purposes of the above rule, must comply with the $14,000,000 limit on small business concerns who are disadvantaged business enterprises for other purposes, in order to receive Federal-Aid Highway Funds, The United States Department of Transportation Secretary has determined that no adjustment for inflation is necessary at the present time and no adjustment factor has been developed as yet. Thus there is no inflation factor in evidence in this case which could be used to adjust the $14,000,000 figure.
Appendix A of the Amended Rule, 49 CFR Part 23, reflects the legislative intent behind the Sturra Act, that firms doing over $14,000,000 annual business should not be eligible for DBE status.
Appendix A ... 14
Congress determined, in order to insure that the DBE program meets its objective of helping small minority businesses become self-sufficient and able to compete in the
market with non-disadvantaged firms, that DBE firms should 'graduate' from the program once
$14,000,000...
Title 13 CFR Part 12.1, Section 121.1(e) , which is incorporated by reference in the above cited rule concerning the definition of "small business concern" provides:
(e) SBA assistance should not be regarded as permanent nor as the primary source of a firms sales. It should be used to assist a firm to compete in the regular business world, without becoming dependent on continuing government aid. Small businesses should not rely on federal assistance from the cradle to the grave, but should plan for the day when they can compete without assistance.
That regulatory intent behind the small business aid scheme, being incorporated by reference in the Respondent Department's rules concerning how a DBE type of small business is defined for purposes of determining whether it can continue to participate in the federally mandated, small business aid program for transportation contractors, when considered in para materia with Appendix A to 49 CFR Part 23, quoted above, which is binding on the Florida DOT since it is a recipient of the federal funds involved, reflects a clear intent that DBE firms should "graduate" from the DBE program when they exceed the revenue limit and no longer be accorded the economic and competitive advantage associated with DBE status.
Finally it should be pointed out that Chapter 87-93, Laws of Florida, effective June 23, 1987, provides that:
Section 339.0805 - State Transportation Trust Fund; specified percentage to be expended with small business owned by socially and economically disadvantaged persons; construc- tion management development program; bond guarantee program.
(1)(a) Except to the extent that the head of the Department determines otherwise, not less than 10 percent of the amounts expended from the State Transportation Trust Fund shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by the Surface Transportation and Uniform Relocation Assistance Act of 1987. (Emphasis added.)
(b) In fulfilling this mandate, the Department shall utilize every means available to it, including, but not limited to, goals and set-asides for competitive
bidding and contracting only by, between, and among those firms which are certified by the Department as socially and economically disadvantaged business enterprises and which are pre-qualified as may be appropriate. It is the policy of the state to meaningfully assist socially and economically disadvantaged business enterprises through a program that will provide for the development of skills through business management training, as well as financial assistance in the form of bond guarantees, to primarily remedy the effects of past economic disparity...
It can be seen that federally mandated definitions of "small business concerns" and those concerns as "disadvantaged business enterprises" have been adopted and made mandatory upon the State of Florida and the Department of Transportation by both the Department's rules incorporating the federal standards by reference as well as the above-mentioned recently enacted Florida statute which incorporated the definitions of the Sturra Act by reference. Those provisions, quoted above, make it clear that the $14,000,000 limit strictly applies to firms situated as is Oglesby and further, that the legislative intent of the Sturra Act, as incorporated by reference in Florida, is that firms should be "graduated" from the DBE. It is presumed that upon reaching the maximum level of gross receipts, a contracting business has become sufficiently viable to exist and compete for Department contracts on an equal footing with other prime contracting firms and no longer requires government assistance as a nascent enterprise in the public contracting field.
Oglesby contends, however, that the new limit, which was enacted by the Congress and the Federal Department of Transportation, and incorporated by reference by the Florida Legislature and Department of Transportation after it filed its application for renewal of certification, cannot be applied to Oglesby in a retroactive manner. That argument is inapposite for the following reasons. Firstly, an applicant for licensure has been held to be bound by the statutes and rules pertaining to the subject matter of that application prevailing at the time of the hearing or even post-hearing, provided that applicant has had an opportunity to have notice of the change in the applicable law, and to have an opportunity to conform his evidence to take it into account. Turro v. Department of HRS, 458 So.2d 345; Davidson v. City of Coral Gables, 119 So.2d 704 (3rd DCA 1960); Bruner v. Board of Real Estate, 399 So.2d 4 (5th DCA 1981). Further, Oglesby was clearly on notice through its annual notices from the DOT concerning the requirement for recertification applications and recertification, that that status was valid only for a year, as mentioned in the above quoted rule and that certification is conditioned upon continued eligibility. Thus Oglesby has always been on notice as a DBE contractor in Florida, that it is under a continuing burden to show that it is eligible for that program, and that it must apply anew for certification every year.
Further, pursuant to Rule 14-78.008, Florida Administrative Code, even if the law, as it existed concerning the $17,000,000 limit at the time Oglesby applied in January 1987, as held to be applicable, the DOT could, at anytime after that application was filed and Oglesby certified, suspend or revoke its certification for no longer meeting the certification standards set forth in Rule 14-78.005 which, after June 1987, incorporated the new $14,000,000 cap. This rule clearly allows revocation during the certification year for lack of
continuing eligibility. Thus, even if Oglesby's argument were correct as to which law is applicable to its application, its certificate could still be revoked based upon such evidence as was adduced herein.
In any event, however, the prevailing case authority in Florida shows that the most current statutory law and agency rules related to the subject matter of an application must be applied, even if those statutes and rules are amended after the filing date of the application. Turro, Supra. Bruner, Supra. See, also, Fuquay and Davis v. D.O.T., 490 So.2d 1010 (1st DCA 1986). Accordingly, it is clear, based upon the above discussion and authority cited, that the application of Oglesby Construction, Inc., for certification as a disadvantaged business enterprise should be denied.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that the application of Oglesby Construction, Inc., for certification as a disadvantaged business enterprise by the Florida Department of Transportation be denied.
DONE AND ENTERED this 3rd day of August, 1988, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1956
Petitioners Proposed Findings of Fact
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected; subordinate to Hearing Officer's findings.
Accepted.
Rejected, Immaterial.
Accepted.
Accepted.
Rejected, immaterial.
Accepted.
Accepted.
Rejected; subordinate to Hearing Officer's findings.
Rejected, immaterial.
Accepted.
Rejected; subordinate to Hearing Officer's findings.
Accepted.
Accepted.
Accented.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Respondent's Proposed Findings of Fact
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted, but not dispositive.
Rejected; subordinate to Hearing Officer's findings.
Rejected; Irrelevant.
COPIES FURNISHED:
Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
Judy Rice, Esquire Senior Attorney State of Florida
Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Robert L. Sabo, Esquire MILLISOR & NOBIL
The Huntington Center
41 South High Street, Suite 2195 Columbus, Ohio 43215
| Issue Date | Proceedings |
|---|---|
| Aug. 03, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 06, 1988 | Agency Final Order | |
| Aug. 03, 1988 | Recommended Order | Exceeding revenue cap for disadvantaged business justifies revocation of Minority Business Enterprise certification instanter. |
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