STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTHWEST ENGINEERING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-2056

) FLORIDA COMMISSION ON MINORITY ) ECONOMIC & BUSINESS DEVELOPMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, William F. Quattlebaum, held a formal hearing in this case on June 30, 1995, in Tampa, Florida.

APPEARANCES

For Petitioner: Gerald Silva, pro se

8409 Sunstate Street

Tampa, Florida 33634

For Respondent: Joseph L. Shields, Esquire

107 West Gaines Street, Suite 201 Tallahassee, Florida 32399-2005

STATEMENT OF THE ISSUE

This issue in this case is whether the Petitioner's application for certification as a Minority Business Enterprise should be approved.

PRELIMINARY STATEMENT

On or about November 17, 1994, the Petitioner filed with the Respondent, an application for certification as a Minority Business Enterprise.

By letter dated April 5, 1995, the Respondent informed the Petitioner that its request for certification had been denied on the grounds that the Petitioner did not meet the requirements of Section 288.703, Florida Statutes and Rule 60A- 2.001, Florida Administrative Code.

The Petitioner requested an administrative hearing on the Respondent's denial of the Petitioner's request for certification. The request was forwarded to the Division of Administrative Hearings which scheduled and noticed the formal proceeding.

At the hearing, the Petitioner presented the testimony of one witness. The Respondent presented the testimony of one witness and had three exhibits admitted into evidence.

A transcript of the hearing was filed on August 7, 1995. The Respondent filed a proposed recommended order which was considered in the preparation of this Recommended Order. Rulings on the proposed findings are included in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. On or about November 17, 1994, Northwest Engineering, Inc., (Petitioner) submitted an application for certification as a Minority Business Enterprise (MBE) to the Florida Commission on Minority Economic & Business Development (Respondent). The application was signed by the Petitioner's president, Gerald Silva.

   
   

2. According to the application, the Petitioner is of Portuguese heritage.

   
   

3. The Petitioner's mother was born in the Azores.

   
   

4. By letter of April 5, 1995, the Respondent advised the Petitioner that it was not eligible for MBE certification. The letter stated that the Azores were not within the geographical restrictions set forth by Florida Statutes.

   
   

5. Official notice is taken that the Azores are a group of Portuguese islands lying in the Atlantic Ocean approximately 740 miles west of southern Portugal.

   
   

6. The Azores are not part of Mexico, South America, Central America, or the Caribbean. Accordingly, persons with origins in the Azores do not fall within the statutory definition of Hispanic Americans for purposes of certification as a Minority Business Enterprise.

   
   

7. The evidence fails to establish that the Petitioner is entitled to certification as a Minority Business Enterprise.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Petitioner has the burden of proving that it is entitled to certification as a minority business enterprise. Florida Department of Transportation v. JWC Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). In this case, the burden has not been met.

   
   

10. A "minority business enterprise" is defined to include any small business concern which is at least 51 percent owned by minority persons and whose management and daily operations are controlled by such persons. Section 288.703(2), Florida Statutes.

    
    

11. "Minority person" is defined as a lawful permanent resident of the State of Florida and includes an Hispanic American. Hispanic American is defined as a person of Spanish or Portuguese culture with origins in Mexico, South America, Central America, or the Caribbean, regardless of race. Section 288.703(3)(b), Florida Statutes.

12. "Origins" means the minority owner's racial or cultural and geographic derivations, as substantiated by at least one grandparent's birth. Rule 60A- 2.001, Florida Administrative Code.

    
    

13. The evidence fails to establish that the Petitioner is a person of Spanish or Portuguese culture with origins in Mexico, South America, Central America, or the Caribbean.

    
    

14. At the hearing, the Petitioner asserted that he was "challenging the criteria" used by the Respondent in making the determination that he was not entitled to certification as an MBE. The Hearing Officer has no authority to invalidate the statute.

    
    

15. As to the rule definition of "origins," the Petitioner offered no evidence which would suggest that the rule is an invalid exercise of delegated legislative authority as such is defined at Section 120.52(8), Florida Statutes. Further, this proceeding is not a rule challenge filed under the provisions of Section 120.56, Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED

that the Florida Commission on Minority Economic & Business Development enter a Final Order denying the application of Northwest Engineering, Inc., for certification as a Minority Business Enterprise.

DONE and ORDERED this 8th day of September, 1995, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 8th day of September, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2056

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

3,5. Rejected, immaterial.

COPIES FURNISHED:

Crandall Jones, Executive Administrator Collins Bldg., Suite 201

107 West Gaines St. Tallahassee, FL 32399-2005

Gerald Silva

8409 Sunstate Street

Tampa, Florida 33634

Joseph L. Shields, Esquire

107 West Gaines Street, Suite 201 Tallahassee, Florida 32399-2005

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 ten 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: 95-002056

Orders for Case No: 95-002056