STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AIR X SERVICE CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3026

) COMMISSION ON MINORITY ECONOMIC ) AND BUSINESS DEVELOPMENT, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for telephonic hearing on February 20, 1995, on Respondent's Motion for Oral Argument, filed February 16, 1995; on Respondent's Motion to Relinquish Jurisdiction for Lack of Jurisdiction, filed February 16, 1995; on Petitioner's Motion to Strike Respondent's Motion to Relinquish Jurisdiction for Lack of Jurisdiction, filed February 17, 1995; on Respondent's Amended Motion to Relinquish Jurisdiction for Lack of Jurisdiction, filed February 20, 1995; on Respondent's Notice of Filing Original Exhibits in Support of Motion to Relinquish Jurisdiction, filed February 20, 1995; and on Petitioner's Memorandum of Law in Opposition to Respondent's Motion to Relinquish Jurisdiction, filed February 20, 1995.

Respondent's Amended Motion to Relinquish Jurisdiction for Lack of Jurisdiction alleges, essentially, that the Petitioner corporation has applied for certification as a minority business enterprise, that Petitioner corporation is an air-conditioning service contractor seeking certification in that area, that the business of air-conditioning service contracting requires licensure by the state, and that neither of the two minority owners possesses either a state license or a federal certification from the Environmental Protection Agency allowing them to handle refrigerants. The Amended Motion alleges that those facts were established through deposition testimony recently taken, that those facts are not in dispute, and that the existence of those facts precludes Petitioner from being certified as a minority business enterprise with Respondent as a matter of law.

The record in this cause reveals that Petitioner's application for certification as a minority business enterprise was denied by Respondent for the reason, inter alia, that the two minority owners had failed to establish that they had the technical knowledge and capability to control the day-to-day operation of an air-conditioning company. Respondent's Amended Motion relies on Section 287.0943(1)(e)1, Florida Statutes, which provides as follows:

(e) In assessing the status of ownership and control, certification criteria shall, at a minimum:

1. Link ownership by a minority person, as defined in s. 288.703(3), or as dictated by the legal obligations of a certifying organi-

zation, to day-to-day control and financial risk by the qualifying minority owner, and

to licensure of a minority owner in any trade or profession that the minority business enterprise will offer to the state when certified; however, the minority licenseholder need not be the controlling owner of the

enterprise, but must hold an ownership interest. Minority business enterprises presently certified by the state will not be subject

to the licensure requirement until 5 years after the effective date of this act.

Thus, the statute mandates that one of the indicia of control is the possession of professional licensure by a minority owner. Respondent argues, therefore, that Petitioner cannot be certified as a matter of law because Petitioner cannot meet all criteria for certification since neither of the two minority owners is licensed to perform the services for which Petitioner seeks certification.

Respondent further reasons that since the Petitioner cannot be certified, participation by the parties in a formal hearing would be a futile endeavor since Petitioner cannot be granted the relief it seeks in this proceeding.

Petitioner argues that (1) Respondent cannot now raise the issue of lack of licensure since it was not previously raised; (2) lack of licensure was not specified among the grounds for denial contained in Respondent's letter denying Petitioner's application for certification; (3) Respondent cannot rely on a statute creating a new obligation or duty retroactively; (4) the statute upon which Respondent relies is only one of the criteria; and (5) Respondent cannot file such a motion so close to the final hearing in this cause. Each of Petitioner's arguments is without merit.

The law is well settled that the question of jurisdiction can be raised at any time. Although Respondent agrees that some facts in this proceeding may be in dispute, some dispositive facts are not, i.e., the lack of licensure of the minority owners. Section 120.57(1), Florida Statutes, offers a substantially affected person the right to a formal hearing before the Division of Administrative Hearings when there are material issues of disputed fact.

Otherwise, the parties are entitled to an informal proceeding. In this cause, there are not enough facts in dispute. Even if the remaining disputed facts were resolved in Petitioner's favor, Petitioner could not be certified by Respondent.

The law is also well settled that a formal proceeding before the Division of Administrative Hearings is a de novo proceeding and that the law to be applied to an application for licensure, certification, or permit, is the law in existence at the time the determination is made as to whether that application should be granted, not the law as it existed at the time the application was filed. Since a change in the law during the pendency of an application is operative as to that application, Petitioner's argument that Section 287.0943(1)(e)1, Florida Statutes, requiring licensure of minority owners does not apply to Petitioner is without merit. Contrary to Petitioner's argument, the statute under consideration is not a criminal statute nor a disciplinary statute penal in nature which cannot be applied retroactively.

The statute does not create a new duty or obligation. Respondent advised Petitioner in its denial letter that Petitioner had failed to establish that its minority owners had the requisite control over the business, and the law

specifying those matters which demonstrate the requisite control can come as no surprise to Petitioner. The law merely restricts somewhat Respondent's discretion in determining whether minority owners possess the requisite control by providing that the minority owner's requisite control is demonstrated by licensure in the trade or profession the business will offer to the state.

It is, therefore, Ordered that:

1. Respondent's Motion for Oral Argument be and the same is hereby granted.

   
   

2. Petitioner's Motion to Strike Respondent's Motion to Relinquish Jurisdiction for Lack of Jurisdiction be and the same is hereby denied.

   
   

3. Respondent's Amended Motion to Relinquish Jurisdiction for Lack of Jurisdiction be and the same is hereby granted.

   
   

4. The final hearing in this cause scheduled for February 23, 1995, be and the same is hereby cancelled.

   
   

5. The file of the Division of Administrative Hearings in the above- captioned matter be and the same is hereby closed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of February, 1995.

LINDA M. RIGOT

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 23rd day of February, 1995.

COPIES FURNISHED:

Laura C. Tapia, Esquire Pablo R. Bared, Esquire Bared & Associates, P.A.

Madison Circle Building, Third Floor 3191 Coral Way

Miami, Florida 33145

Ana Christina Martinez, Esquire Office of the Attorney General PL-01 The Capitol

Tallahassee, Florida 32399-1050

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: 94-003026

Orders for Case No: 94-003026