STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

T-B SERVICES GROUP, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-2938

) STATE OF FLORIDA, COMMISSION ON ) MINORITY ECONOMIC AND BUSINESS ) DEVELOPMENT, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This case came before Larry J. Sartin, Hearing Officer of the Division of Administrative Hearings, on Respondent's Motion to Dismiss Petition for Lack of Jurisdiction.

APPEARANCES

For Petitioner: Cindy A. Laquidara, Esquire

Suite 1629, Riverplace Tower 1301 Riverplace Boulevard

Jacksonville, Florida 32207

For Respondent: Kenneth W. Williams

Assistant Attorney General Office of the Attorney General PL-01, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue in this case is whether the Petition for Formal Hearing filed by Petitioner, T-B Services Group, Inc.

PRELIMINARY STATEMENT

On or about March 3, 1994, Petitioner filed an application for minority certification. The application was denied by Respondent by letter dated May 3, 1994. By letter dated May 19, 1994, Petitioner filed a Petition for Formal Hearing contesting Respondent's denial.

The Petition was filed with the Division of Administrative Hearings by letter from Respondent dated May 27, 1994. The Petition was designated case number 94-2938 and was assigned to the undersigned.

A final hearing was scheduled for September 28, 1994, by Notice of Hearing entered June 17, 1994. The hearing was continued until January 20, 1995, by an Order Granting Motion for Continuance entered September 16, 1994. A second

continuance was granted upon the request of Respondent. The hearing was rescheduled for April 13, 1995.

On March 22, 1995, Respondent filed Respondent's Motion to Dismiss Petition for Lack of Jurisdiction. A hearing to consider the motion was held by telephone on April 6, 1995. After hearing argument of the parties, a ruling on the motion was reserved. The parties were subsequently informed by telephone on April 7, 1995, and by an Order entered April 10, 1995, that the motion would be granted. The final hearing scheduled for April 13, 1995 was cancelled.

FINDINGS OF FACT

1. On or about March 17, 1994, Petitioner, T-B Services, Inc., filed an application for certification as a minority business enterprise with the Florida Department of Management Services. The Respondent, the State of Florida Commission on Minority Economic and Business Development, has subsequently been assigned responsibility for this matter.

   
   

2. On May 3, 1994, Petitioner's application was denied.

   
   

3. Petitioner's application was denied based upon Respondent's conclusion that Petitioner did not satisfy Sections 288.703(2) and 287.0942(1), Florida Statues, and rules governing minority business enterprises of the Department of Management Services.

   
   

4. Mr. Anthony D. Nelson is the minority, 100 percent, owner of Petitioner. Mr. Nelson is an African-American.

   
   

5. The business of Petitioner, fire protection consulting, and fabrication and installation services, requires the association of an individual holding a professional license to perform those services.

   
   

6. There are two professional license holders associated with Petitioner. Neither of the professional license holders are members of any minority.

   
   

7. Mr. Nelson does not hold a professional license necessary for the Petitioner to provide fire protection consulting, or fabrication and installation services.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

9. Section 287.0943(1)(e)1, Florida Statutes, as amended by 94-322, 1994 Laws of Florida, requires that a minority business owner seeking approval as a minority business enterprise, must hold any license required in the area in which the minority business is seeking minority business enterprise status.

   
   

10. The effective date of the amendment was May 31, 1994, after the application had been filed (March 17, 1994) and after it had been denied (May 3, 1994) but before any final action on the application.

    
    

11. There is not dispute that Section 287.0943(1)(e)1, Florida Statutes, prohibits approval of Petitioner's application. Petitioner argued, however,

    that the provision should not apply to Petitioner because it was not effective until after Petitioner had filed its application and it had been denied.

    
    

12. Based upon the decision in Lavernia v. Department of Professional Regulation, 616 So.2d 53 (Fla. 1st DCA 1993), Petitioner's argument is rejected. In Lavernia the court stated the following concerning the application of a change in a licensing law during the pendency of an application for the license:

    
    

    Florida follows the general rule that a change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather than as

    it existed at the time the application was filed, determines whether the license should be granted. . . .

    
    

    516 So.2d at 53-54.

    
    

13. This case involves a change in a licensure statute during the pendency of Petitioner's application for licensure. Therefore, it is the law currently in effect, rather than as it existed at the time the application was filed or denied, that applies. Although there are exceptions to the general rule recited in Lavernia, none of those exceptions apply in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent dismissing the

Petition for Formal Hearing filed by T-B Services Group, Inc., and denying Petitioner's application for minority business enterprise certification.

DONE AND ENTERED this 26th day of May, 1995, in Tallahassee Florida.

LARRY J. SARTIN, 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 26th day of May, 1995.

COPIES FURNISHED:

Cindy A. Laquidara, Esquire Suite 1629, Riverplace Tower 1301 Riverplace Boulevard

Jacksonville, Florida 32207

Kenneth W. Williams Assistant Attorney General

Office of the Attorney General PL-01, The Capitol

Tallahassee, Florida 32399-1050

Crandall Jones

Commission on Minority Economic and Business Development Executive Administrator

Knight Building

272 Centerview Drive Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-002938

Orders for Case No: 94-002938