STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAP TECHNICAL CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 95-2991

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, ) COMMISSION ON MINORITY ECONOMIC ) AND BUSINESS DEVELOPMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 24, 1996, and July 10, 1997, in Pensacola, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: G. Thomas Smith, Esquire

Smith and Sauer, P.A.

510 East Zaragoza Street Pensacola, Florida 32501

For Respondent: Joseph L. Shields, Esquire

Commission on Minority Economic and Business Development

107 West Gaines Street

201 Collins Building Tallahassee, Florida 32399-2005

STATEMENT OF THE ISSUE

The issue for determination at final hearing was whether Petitioner should be certified as a minority business enterprise by the Office of Minority Business Advocacy and Assistance.

PRELIMINARY STATEMENT

On May 15, 1994, Petitioner, RAP Technical Corporation, applied for Minority Business certification on the basis that Petitioner was at least 51-percent-owned by Native Americans and belonged to the tribe of Lower Muscogee Creek. Certification was denied on the basis that Rap Technical Corporation did not meet the definition of a "Minority Business Enterprise" (MBE).

Specifically, certification was denied because none of the shareholders/owners, Richard A. Pitman, Douglas R. Pitman, or Carol J. Pitman, was issued a professional license as a licensed electrical contractor. Mr. John W. Hill, a non-minority individual, held the professional license for the company.

Eventually, Mr. Douglas Pitman obtained the requisite professional electrical contractor license and on July 3, 1994, Petitioner re-applied for certification.

Around March 21, 1995, the Respondent advised the Petitioner that the Lower Muscogee Creek was not a tribe or clan recognized by the U.S. Bureau of Indian Affairs as existing prior to 1835 and that the owners could therefore not qualify under this claim of ethnicity. The Petitioner's owners amended their application and presented a genealogical compilation by which they attempted to establish minority status as Cherokee Indians.

The subsequent application was denied on the basis that the shareholder/owners were not minority persons. The Respondent, by letter dated May 2, 1995, notified the Respondent that

certification as an MBE was denied because the Petitioner did not comply with the requirements of Sections 288.703(2) and (3), Florida Statutes, and Rules 60A-2.001(5)(7), and (8), and

60A-2.005(6)(b), Florida Administrative Code. Specifically, the Respondent concluded that the facts presented in the application did not substantiate that the Pitmans are members “of an insular group that has been subjected historically to disparate treatment due to identification in and with that group."

Petitioner disagreed with the Respondent’s determination and requested a formal administrative hearing. The Petitioner’s request was forwarded to the Division of Administrative Hearings.

FINDINGS OF FACT

1. Richard Pitman has been a shareholder and employee of Rap Technical Corporation since its incorporation 13 years ago. He owns 51 percent of the stock of the company. The corporation is licensed to do electrical and instrumentation contracting work for industrial plants and facilities. Douglas Pitman, his brother, owns 45 percent of the common stock of Petitioner and holds a valid license as an electrical contractor.

2. Richard Pitman and Douglas Pitman have been aware of their Indian heritage throughout their lives. Because of past prejudice against their culture they were instructed by their parents and grandparents to deny this heritage to avoid prejudicial treatment and undeserved shame. The evidence did not

   demonstrate to which Indian tribe the Pitman’s parents or grandparents referred.

3. However, because of this advice Richard Pitman felt he had to hide his Native American heritage to retain a job that he had. Their children have witnessed the prejudice as evidenced by their questions concerning the manner in which other people have ridiculed and criticized their grandmother's superstitious ways and activities stemming from her Native American heritage. Again which Indian heritage was not shown by the evidence.

4. In fact, many of the relatives of the Pitman brothers have traditionally denied their Indian heritage. Following the death of their grandmother, two of their aunts finally admitted their Indian descent.

5. Over the years Richard Pitman and Douglas Pitman have become proud of their Indian heritage and are active in local Native American cultural activities, primarily related to the Lower Muscogee Creek. They have participated in local clan matters and have worked to promote Native American culture in schools and other community organizations.

6. They have instructed their children in their Native American heritage and culture and have encouraged them to participate in tribal ceremonies and activities. The evidence was not clear about which Indian culture such instruction and participation has occurred.

7. Recently, Petitioner has mailed letters to companies with whom their company has done business. The letters informed these other businesses that Rap Technical Corporation was a minority business and was proceeding with the certification process for MBE status. Since the time that these letters were mailed, Petitioner has not received any work from the companies that were sent one of these letters. However, the evidence did

   not show whether any work was available or the reasons why Petitioner was not hired by these companies for such work if it had been available.

8. The Pitmans claim Cherokee descent from John West Sr., their great, great, great-grandfather. Their descent is as follows: Richard Pitman and Douglas Pitman are the sons of Marcus Dee Pitman and Dorothy Alline MaBire. The parents and Richard Pitman are listed as white on the birth certificate of Richard Pitman. Douglas Pitman's birth certificate was not submitted into evidence.

9. Marcus Dee Pitman is the son of Ada West Pitman and Marcus Dee Pitman (Sr). Ada West was the daughter of George West and Ida Newsome.

10. George West was the son of John West, Jr., and

    
    

    Anna Jane (West). John West, Jr., was the son of John West, Sr., and Jane Fulton.

11. Prior to 1835 the Cherokee Indian lands covered an area east of the Mississippi and included parts of Tennessee, Alabama, Georgia, and North Carolina. The western part of the territory located in Georgia was bordered by several Georgia counties, of which Hall County, Georgia, is relevant to this case. The eastern part of the territory located in Alabama was bordered by several Alabama Counties of which Blount County is relevant to this case.

12. Historical records reflect that Benjamin West was probably a white man who was born in Maryland. Records do not reflect Benjamin West’s race. However, the place of his birth is most strongly consistent with a person of Caucasian descent. He eventually resided in North Carolina. He served in the military while in North Carolina. He also was married in North Carolina to Nancy. Around 1823 both he and his wife moved to Hall County, Georgia. A bible record reflects that Benjamin and Nancy West had many children, two of whom were John West, born October 16, 1790, and Nancy West, born March 11, 1801. Benjamin West died in Hall County, Georgia, on November 25, 1842, at the age of 83.

13. Benjamin West’s son, John West, would have been 35 years old in 1825, 45 years old in 1835, and 50 years old in 1840. Nancy West would have been 12 years old in 1813, 24 years old in 1825, 34 years old in 1835, and 39 years old in 1840.

14. Historical documents also reflect that a John West, Sr., and Jane Fulton were married in Hall County, Georgia, on September 24, 1825. The marriage certificate does not reflect the race of either individual. The fact that these two individuals were married under the civil laws of the United States, at the time a foreign nation in relation to the Cherokee Nation, would tend to indicate that the Wests were white. However, many people of Cherokee descent would undergo both a Cherokee and United States marriage ceremony since they lived in

    both communities and wanted the marriage recognized in both communities.

15. Several historical texts have been written about the early families of Hall County, Georgia. These texts were Some Georgia County Records, Reprint Land Lottery 1827, Vol. 6 p. 108 (publication date unknown); The History of Hall County, Georgia, 1818-1900, by James E. Dorsey, Vol. 1 Magnolia Press 1991; and The Families of Hall County, 1817-1849, by Robert S. Davis, Jr., Magnolia Press 1991. The parts of these texts introduced into evidence consisted of multiple lists of names found in various County records of Hall County.

16. Of relevance to this case were references in these texts to a John West’s participation in the land lottery of 1827 and receipt of property from that lottery consisting of lot 24, District 5, Section 4. Other winners in the lottery were Benjamin West (referenced two times) and Nancy West (referenced one time). Testimony from genealogical experts at the hearing was in disagreement as to whether the qualifications for participating in the land lottery of 1827 would preclude a person of Cherokee descent who had served in the war from participating in the lottery; in short, whether only Caucasians could participate in the lottery. Suffice it to say that the references to which the experts drew their opinions were unclear on the issue. Therefore, no conclusion can be drawn on whether

    the John West who participated in the land lottery of 1827 was white or a Cherokee Indian who served in the war.

17. Additional references in these texts show a John West purchasing property sometime between 1815 and 1824, a John West (presumably over 21) acting as the guardian of Nancy West, aged

    12 around 1825, a John West and Celia West (presumably minors) being taught as poor school children in 1830, and an estate of John West on the 1849 Hall County tax digest being administered by William West. These texts do not show the race of the persons referenced in them. Clearly however, these references show multiple individuals named John West since, given the dates and ages of the individuals, it would be impossible for these people to be the same person. For example, the guardian John West does not appear to be the same person as the John West, son of Benjamin West. The son of Benjamin West had a sister named Nancy. However, that Nancy West would have been at least 24 years old in 1825. A significant age difference from the 12- year-old Nancy West referenced in the text. Additionally, the 1849-deceased John West may well have been the son of Benjamin West since that John West did have a younger brother named William West who could have served as the administrator of his estate.

18. The 1835 Cherokee census was taken to determine the members of the Cherokee tribe who would be eligible to receive payment for improvements they had made to tribal land. The

    payments were made by the United States pursuant to the Cherokee removal treaty of 1835 that constituted the first waive of removal of members of the Cherokee tribe from the Indian Territory to Oklahoma. The Indian Territory was eventually divided into counties among the various states bordering the territory.

19. The 1835 Cherokee census lists John West, as a male Native American and a farmer over the age of 18. In the listing referencing John West the census reflects, as part of the West household, a Cherokee female over the age of 16, who may have been his wife or a spinster living with John West, and two “quadroon” (1/4 Cherokee) children who were members of his family. The record also reflects that there were 2 descendants, referring to the two children. All were living in his home on a “Creek Path” in “Blount Cty.”

20. The 1835 census does not reflect the names of the children, the female over 16 or the spinster, if she is separate from the female over 16.

21. Additionally, the 1835 census does not reflect the meaning of the terms “Creek Path” or “Blount Cty” in the 1835 census of Cherokee Indians. The term “Creek Path” could refer to a footpath along an unknown creek or to the Cherokee trading road known as the Creek Path. Likewise, the term “Blount Cty” is unclear as to whether it stands for Blount City or Blount County.

22. Between 1830 and 1835 historical documents regarding Cherokee emigration records show a John West and his family relinquished their rights to property owned by them in the Well’s Creek, Alabama, area to the government as a part of the first wave of removal of the Cherokee Tribes to the Oklahoma Territory. The property consisted of improvements of one good and two tolerable houses with useful appurtenances and good fences.

23. The West family was paid only for improvements to the land they farmed and not for the land itself since the land belonged to the tribe and not to individual members of the tribe.

24. The location of Well’s Creek is unknown. Importantly however, the John West who appears on the emigration records is located in Alabama. The Alabama location would place this John West on the other side of the Indian territory from the ancestors of Petitioner located in Hall County, Georgia. The Alabama location would be consistent with the “Blount Cty” reference in the 1835 Cherokee census if that reference was to Blount County, Alabama. Taken together, these records would show that the John West listed on the 1835 Cherokee census is not the ancestor of Petitioner.

25. Allegedly, after relinquishing their property rights the West family moved to Oklahoma. However, it is just as likely the family did not move or moved and returned as many Cherokees did during this time period. There are no concurrent historical records of the Cherokees who actually made it to Oklahoma. There

    are two after-the-fact records of persons who were paid for their property by the United States and moved to Oklahoma. These records are referred to as the Old Settlers Roll prepared around 1895-1896 and the Drennan Roll prepared around 1851.

26. The Old Settlers Roll consists of two documents titled the Old Settler Cherokee Census Roll, 1895 and the Index to Payment Roll of the Old Settler Cherokee, 1896. The Old Settlers Roll was developed by a commission consisting of 5 members from the Cherokee Old Settlers party and agents of the Union Agency, pursuant to the provisions of the Treaty of August 6, 1846

    (9 Stat. 871). The 1846 treaty provided for the payment of “shares” from funds established by the treaty with the Cherokee Nation of 1835 to Cherokees who sold their property and moved to Oklahoma. This list of settlers comprises the Old Settlers Roll.

    An actual record of payment to these individuals does not exist. However, the index to the record of payment exists and is the index referred to above.

27. The Drennan Roll is a list of Cherokee people who arrived in Oklahoma after the Cherokee removal in 1839. It was prepared around 1851 for essentially the same purpose as the Old Settlers Roll. The two sets of documents also inter-relate to a certain degree.

28. Both sets of documents reflect a family of Wests, including a John West and John West, Jr., emigrating to Oklahoma. The John West listed on the Drennan Roll died without issue.

    What is unclear in these documents is when the family moved to Oklahoma, the ages of the individuals who made the move or whether some of these individuals returned. Most likely, these rolls reflect the John West family from Alabama who, the emigration records discussed above indicate, sold their property and abandoned it to the United States around 1835. The evidence does not demonstrate that this family of Wests are the ancestors of Petitioner.

29. The 1840 census for Hall County, Georgia, list only one John West and his family. All individuals were listed as white rather than as Indians. However, prior to 1870, census takers listed all persons other than persons of African descent as white, including Native Americans. The family consisted of one white male between 40 and 50 years old (John West); one white

    male between 15 and 20 years old; two white males between 5 and

    
    

    10 years old; one white female between 30 and 40 years old; one white female between 15 and 20 years old; two white females between 10 and 15 years old; and two white females between 5 and

    10 years old. The age given for John West would have been consistent with the age of Benjamin West’s son, John West. None of the names of the family members are given in the 1840 census. Therefore, it is impossible to conclude that the male family member between the 15 and 20 years old is the John West described below in the 1850 census for Baker County, Georgia.

30. The 1850 census roll for Baker County, Georgia reflects John West aged 28. The members of his family were Jane West, aged 24, James West, aged 5, Elijah West, aged 3 and John West, aged 6 months. Baker County is one county away from the Florida line and well south of Hall County, Georgia, which is in the northern part of Georgia. These Wests are the ancestors of Petitioner.

31. The 1850 census records of Fayette County, Georgia, list an Ann Jane West, aged 44, from North Carolina. Fayette County is about two counties south of Hall County, Georgia. It is unclear whether this is the same Anna Jane who married John West, Sr. The record does not list either John West or John West, Sr., as living in Fayette County, Georgia, at the time of the 1850 census.

32. The 1860 census for Mitchell County, Georgia (created from part of Baker County, Georgia), again lists John West and his growing family. The census reflects John West, aged 35; Anna J. West (a.k.a. Jane West), aged 33; James West, aged 14;

    Elijah West, aged 11; Homer West, aged 9; Susan West, aged 5; and Ida West, aged 8 months. Apparently John West the 6-month-old son in 1850 had died. Also listed separately in the 1860 census for Mitchell County was Anna J. West from North Carolina aged 60.

33. The 1870 census for Mitchell County, Georgia, lists John and Jane West as well as their children who remain at home: Homer; Ida; John D[sic] aged 8; George W., aged 4; and

    William W., aged 18 months. Anna Jane West from North Carolina is also listed separately in the 1870 census.

34. The 1880 census of Mitchell County, Georgia, reflects similar information, except the wife of John West is listed as Elizabeth, aged 40. Anna Jane West from North Carolina is not listed on the portions of the census submitted into evidence.

35. From this point forward the line of descent for the owners of Petitioner is not in question. The problem is that the only tie of that descent to a claim of Cherokee ancestry is based on a listing of a John West on the Cherokee census of 1835. The evidence did not demonstrate short of speculation that the 1835 John West was the distant relative of Petitioner. There is simply a gap in the historical record connecting the 1835

    John West to Petitioner’s lineage. In short, the evidence did

    not reflect enough pertinent information, such as age or number of children, about the 1835 John West and the John West, Sr., associated with Petitioner’s owners to permit the conclusion that they were the same individual. Therefore, after reviewing all of the historical documents submitted into evidence and the conflicting expert opinions on the conclusions that can be drawn from these documents, it must be concluded that Petitioner has not established by a preponderance of the evidence that he is of Cherokee descent and his application for certification as a MBE should be denied.

    CONCLUSIONS OF LAW

    
    

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

37. The Office of Minority Business Advocacy and Assistance is charged with administering certification of minority business enterprises pursuant to Chapter 288, Florida Statutes. Petitioner, as the applicant for certification as a minority business enterprise, has the burden of proving by a preponderance of the evidence its entitlement to certification. Florida Department of Transporation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1991).

38. Subsection 288.703, Florida Statutes, governs certification of an MBE as follows:

    1. 'Small Business' means an independently owned and operated business concern that

       employs 100 or fewer permanent full-time employees and that, together with its affiliates, has a net worth of not more than

       $3 million and an average net income after federal income taxes, excluding any carryover losses, for the preceding 2 years of not more than $2 million. As applicable to sole proprietorships, the $3 million net worth requirement shall include both personal and business investments.

       
       

    2. Minority business enterprise means any small business concern as defined in subsection (1) which is organized to engage in commercial transactions, which is domiciled in Florida, and which is at least 51-percent-owned by minority persons who are members of an insular group that is of a particular racial, ethnic, or gender makeup or national origin, which has been subjected historically to disparate treatment due to identification in and with that group resulting in an under-representation of commercial enterprises under the group's control, and whose management and daily operations are controlled by such persons.

       
       

    3. Minority person means a lawful, permanent resident of Florida who is:

       
       

       (d) A Native American, person who has origins in any of the Indian Tribes of North America prior to 1835, upon presentation of proper documentation thereof as established by rule of the Department of Management Services.

       
       

39. Rule 38A-20, Florida Administrative Code, formerly

    
    

    60A-20, Florida Administrative Code, was adopted to implement the requirements of Chapter 288, Florida Statutes.

    Rule 38A-20.001, Florida Administrative Code, provides in part:

    
    

    1. Minority means a lawful, permanent resident of the State of Florida who is:

       (d) Native American: A person who has origins in any of the Indian Tribes prior to 1835.

       
       

    2. Small Business is defined in Section 288.703(1), Florida Statutes.

    Minority Business Enterprise (MBE) is as defined in Section 288.703(2), Florida Statutes.

    
    

    * * *

    
    

    1. Origins means the minority owner's racial or cultural and geographic derivations, as substantiated by at least one grandparents' birth, and who can demonstrate that he or she has been subjected historically to disparate treatment due to identification in and with that racial or cultural and geographic group thus resulting in under-representation of commercial enterprises.

       
       

       * * *

       
       

    2. 'Independently operated' means not dependent on the support, influence, guidance, control or not subject to restriction, modification or limitation from a non-minority, except for customary business auxiliary services, e.g., legal, banking, etc.

    
    

    * * *

    
    

    1. 'Permanent resident' means a resident whose true, fixed and permanent home and principal establishment is within the State of Florida, who has lived in the State of Florida for at least six (6) months out of the last twelve (12) months and who does not routinely and habitually establish occupancy in a personally owned, mortgaged or leased residence outside of Florida.

       
       

    2. 'Control' means to direct with privacy or cause the direction of all phases of the management and daily operations of the business, including, but not limited to, standard management practices and principles

    such as policy development, establishment of personnel reporting lines and operational procedures, problem solving, etc.

    
    

    * * *

    
    

    1. A 'federally recognized Indian Tribe' means an Indian Tribe, Band, Nation, Rancheria, Pueblo, Colony, or other organized group or community, including any Alaska Native Village, which is recognized by the Secretary of the Interior as having special rights and is recognized as eligible for the services provided by the United States to Indians because of their status as Indians.

       
       

    2. 'Bureau' means the Bureau of Indian Affairs, U.S. Department of Interior.

       
       

    3. 'Independently owned' means not owned wholly or in part by any other entity.

    
    

40. Section 38A-20.005, Florida Administrative Code, provides:

    1. Applicant businesses shall submit applications for Minority Business Enterprise certification on Form MBE 7500, Application for Minority Business Enterprise Certification, incorporated herein by reference which can be obtained from the Office.

       
       

       * * *

       
       

       1. The applicant business must demonstrate that it is at least 51% owned by minority persons who are permanent residents of Florida.

          
          

          1. In establishing the permanent Florida residency of the minority owners, the documentation the Office shall consider includes, but is not limited to, the following:

             1. Homestead exemption.

             2. Voter registration.

             3. Driver license.

             4. Department of Veteran's Affairs Identification Card.

             5. Florida intangible tax returns.

             6. Declaration of Florida residency for purposes of filing Federal tax return.

             7. Declaration of domicile filed pursuant to Section 222.17, Florida Statutes.

             8. The applicant business must provide evidence of the minority status of owners who are claiming to be minority persons.

             
             

          2. In determining the ethnicity of a person, the Office shall consider any of the following:

             1. Birth certificate.

             2. Passport.

             3. Citizenship papers.

             4. Driver license.

             5. Voter registration card.

             6. Death certificate.

             7. Membership or eligibility for membership in a federally recognized Indian tribe.

             8. Membership or eligibility for membership in an Indian tribe recognized by the Government of Canada.

             9. A letter issued by the Bureau which certifies eligibility to share in a

                distribution of judgment funds resulting from an aboriginal land claims settlement, i.e. docket number.

             10. An Alaskan Native Corporation Shareholder Certificate.

             11. A Schedule of the U.S. Census, complete with year, book and page number.

             12. Tribal registration.

             13. Any other documentation that tends to substantiate the person's claim of minority status.

             
             

          3. In determining the gender of a person, the Office shall consider any of the following:

             1. Birth certificate.

             2. Passport.

             3. Citizenship papers.

             4. Driver license.

             5. Voter registration card.

             6. Any other documentation that tends to substantiate the person's claim of minority status.

             
             

          4. When determining a person's origins, the Office may consider documentation clearly establishing a direct line of descent.

       
       

       1. Such documentation may include:

          1. Marriage licenses.

          2. Divorce decrees.

          3. Adoption papers, to show the adopted person's original, not adopted, origins.

          4. Court orders which have the effect of changing a person's name.

             
             

       2. The Office is not required to, but may consider as supporting documentation, the following:

          1. An Affidavit, except that of an official of the federal government, a state government or a municipality.

          2. A 'family tree' or 'family chart'.

       
       

41. In this case the Petitioner has not proven by a preponderance of the evidence that Petitioner’s owners are Native Americans. The documentation of the Pitmans’ ancestry does not

support the conclusion that their great, great, great-grandfather was the John West listed on the 1835 Cherokee census. This connection was essential to Petitioner’s claim of Cherokee ancestry. Since the connection is not established by the evidence, Petitioner cannot demonstrate its owners are members of a tribe recognized by the United States prior to 1835; and therefore, entitled to certification as a MBE. Therefore, Petitioner’s application for certification as a MBE should be denied.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is,

RECOMMENDED:

That the Petition be dismissed and certification as a Minority Business Enterprise be denied.

DONE AND ENTERED this 19th day of November, 1997, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1997.

COPIES FURNISHED:

Joseph L. Shields, Esquire Commission on Minority Economic

and Business Development

201 Collins Building

107 West Gaines Street Tallahassee, Florida 32399-2005

G. Thomas Smith, Esquire Smith and Sauer, P.A.

510 East Zaragoza Street Pensacola, Florida 32501

Edward A. Dion, Esquire Department of Labor and Employment Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Douglas L. Jamerson, Secretary Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 95-002991

Orders for Case No: 95-002991