STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CALVIN W. "BILL" WOOD, )

)

Petitioner, )

)

vs. ) Case No. 99-4728

)

DEPARTMENT OF LABOR AND, )

EMPLOYMENT SECURITY, ) DIVISION OF MINORITY BUSINESS ) ADVOCACY ASSISTANCE OFFICE. )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing on April 18, 2000, in Winter Haven, Florida.

APPEARANCE

For Petitioner: C. W. "Bill" Wood, pro se

10577 Schaefer Lane

Lake Wales, Florida 33853

For Respondent: Joseph L. Shields, Esquire

Department of Labor and Employment Security

The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

Should Petitioner be certified as a minority business enterprise (MBE) by the Minority Business Advocacy and Assistance Office of the Department of Labor and Employment Security?

PRELIMINARY STATEMENT

On August 25, 1999, Petitioner made an application with the Minority Business Advocacy and Assistance Office for certification as a MBE. By letter dated September 24, 1999, the Minority Business Advocacy and Assistance Office denied Petitioner’s application for MBE status. The denial was based on Petitioner's failure to meet the requirements of Section 288.703(1)(2) and (3), Florida Statutes, Rule 38A-20.001(6)(9) and (14), Florida Administrative Code, and Rule 38A- 20.005(6)(a)(b)(c) and (d), Florida Administrative Code. By letter dated October 12, 1999, Petitioner requested a formal hearing on the denial of his application for MBE certification.

By letter dated November 4, 1999, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, Petitioner testified on his own behalf and presented the testimony of Isaac E. Reed. Petitioner’s Exhibits numbered 1 through 13 were admitted in evidence. Respondent presented the testimony of Melissa Leon. Respondent’s Exhibits numbered 1 through 3 were admitted in evidence. Federal Register/Volume 65, Number 49, dated March 13, 2000, was Officially Recognized.

There was no transcript of this proceeding filed with the Division. Respondent timely filed its Proposed Recommended

Order. Petitioner elected not to file any proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Petitioner is a sole proprietor seeking certification as an MBE under the minority status of Native American (Indian). Also in his application seeking MBE certification, Petitioner claimed the category of Hispanic American but did not attempt to prove this category at the hearing.

2. Petitioner is seeking certification as an MBE qualified to perform building maintenance, grounds maintenance, painting, cleaning, landscaping, and clearing and grubbing.

3. Petitioner’s great-grandmother was a full-blooded Cherokee Indian (Native American) who lived her life as an Indian. However, Petitioner presented no evidence that his

   great-grandmother was a member of any federally recognized Indian Tribe, as that term is defined by Rule 38A-20.001(17), Florida Administrative Code.

4. Petitioner was at one time a member of the American Cherokee Confederacy of Georgia. However, Petitioner resigned from the American Cherokee Confederacy of Georgia and no longer claims any ties to that group. The American Cherokee Confederacy

   of Georgia is not a federally recognized Indian Tribe as that term is defined by Rule 38A-20.001(17), Florida Administrative Code.

5. Petitioner is not a member of any federally recognized Indian Tribe as that term is defined by Rule 38A-20.001(17), Florida Administrative Code.

6. Respondent stipulated at the hearing that its denial was based solely on the fact that Petitioner had failed to present sufficient evidence to prove that he was a minority person as that term is defined in Section 288.703(3)(d), Florida Statutes.

   CONCLUSIONS OF LAW

   
   

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

8. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Department of Transportation v. J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the Petitioner must establish facts upon which his allegations of entitlement to MBE status are based by a preponderance of the evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996) and Section 120.57(1)(j), Florida Statutes (1999).

9. In pertinent part, Section 288.703(1)(2) and (3), Florida Statutes, provides as follows:

   1. "Small Business" means an independently owned and operated business 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. (Emphasis furnished.)

10. Rule 38A-20.001(9) and (17), Florida Administrative Code, provides as follows:

    (9) Origins means the minority owner's racial or cultural and geographic derivations, as substantiated by at least one grandparent's 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. (Emphasis furnished.)

    (17) 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 Interior as having right and is recognized as eligible for the services provided by the United States to Indians because of their status as Indians.

11. Petitioner has failed to meet his burden to show that he is a minority person as defined in Section 288.703(3)(d), Florida Statutes, who is entitled to Minority Business Enterprise status.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's application for Minority Business Enterprise status be denied.

DONE AND ENTERED this 20th of June, 2000, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000.

COPIES FURNISHED:

Calvin W. "Bill" Wood 10577 Schaefer Lane

Lake Wales, Florida 33853

Joseph L. Shields, Esquire Department of Labor and

Employment Security

The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

Mary Hooks, Secretary Department of Labor and

Employment Security

The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Sherri Wilkes-Cape, General Counsel Department of Labor and

Employment Security

The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 99-004728

Orders for Case No: 99-004728