STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAYWARD TRUCKING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 82-509

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on May 12, 1982, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Norman J. Bolinger, Esquire

3100 University Boulevard, South, Suite 225

Jacksonville, Florida 32216

For Respondent: Vernon L. Whittier, Jr., Esquire and

Ella Jane P. Davis, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301

BACKGROUND

Petitioner, Hayward Trucking Inc., filed an application dated August 11, 1981, for certification as a minority business enterprise with Respondent, Department of Transportation. On January 18, 1982, Respondent advised Petitioner by letter that its application was denied on the ground Petitioner had not established bona fide minority group membership by appropriate documentation.

On February 2, 1982, Petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of its application. The matter was referred by Respondent to the Division of Administrative Hearings on February 19, 1982, with a request that a hearing officer be assigned to conduct a hearing. By Notice of Hearing dated March 16, 1982, the final hearing was scheduled for May 12, 1982, in Jacksonville, Florida.

At the final hearing Petitioner presented the testimony of its vice- president, Patricia A. Hayward, and offered Petitioner's Exhibits 1-8, each of which was received into evidence. Respondent presented the testimony of Sunil

1. Nath, its former MBE liason officer, and offered Respondent's Exhibits 1-4, each of which was received into evidence.

   The transcript of hearing was filed on May 25, 1982. Proposed findings of fact and conclusions of law were filed by Respondent on June 3, 1982, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or not supported by competent and substantial evidence.

   
   

   The issue herein is whether Petitioner's application for certification as a minority business enterprise should be granted.

   
   

   Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

   1. Petitioner, Hayward Trucking, Inc., is a trucking company engaged in transporting road building and construction aggregates. Its principal office is located at 6549 Robinson Road, Jacksonville, Florida.

      
      

   2. On January 1, 1974, Hayward & Rose Inc. was formed with James Hayward and Charles Rose each owning 50 percent of the stock. In June, 1974, the corporation was reorganized and renamed to its present name. Patricia Ann Hayward, the wife of James Hayward, acquired 51 percent of the stock while her husband retained 49 percent ownership. James and Patricia Ann Hayward serve in the positions of president and vice-president of the corporation, respectively.

      
      

   3. Patricia Ann Hayward is active in the day-to-day operations and makes all business decisions affecting the corporation. Although her husband is president, he is not involved in managing the business.

      
      

   4. Mrs. Hayward was born on March 9, 1928, in Mamoth, West Virginia. However, she left her natural parents at birth and was raised by another family. She did not discover the identity of her natural parents until she was approximately thirty years of age and did not actually meet her family until around 1970. At that time, she learned her mother was an American Indian. She then began efforts to trace her heritage by corresponding with the Cherokee Tribe of North Carolina and the Bureau of Indian Affairs in Washington D.C. To date her efforts have been unsuccessful in obtaining additional information concerning her family.

      
      

   5. When her first application for a birth certificate was made, Mrs. Hayward listed her race as white". After learning of her true nationality, she applied for and was issued an amended birth certificate in 1978 by the West Virginia Department of Health, Division of Vital Statistics listing her race as American Indian. The amendment was made only after Hayward furnished the State affidavits from her mother's sister and the funeral home which buried members of her natural family, and certain other documentation. After similar documentation was given to the Kentucky Registrar of Vital Statistics, that State issued amended birth and death certificates in 1978 for Mrs. Hayward's mother also listing her race as American Indian. It had previously been listed as white.

      
      

   6. Petitioner was first approved for the Department's Minority Contractors List in February, 1977. She has remained on the list continuously since that time. Approval for inclusion on the list was based on Petitioner's claim that Mrs. Hayward was an American Indian.

   7. The Department does not consider the documentation submitted by applicant to be adequate to establish Mrs. Hayward's minority membership. Although it had accepted Mrs. Hayward's representation that she was an American Indian in earlier years, it advised her on January 14, 1981, that she must furnish .... documentation of (her) status as an American Indian, either thru (sic) the Bureau of Indian Affairs or from the Tribal Chief..." After these specific items were not supplied, a letter of denial was issued precipitating the instant case.

      
      

   8. At some undisclosed time Respondent received "specific instructions" from the Governor's Council on Indian Affairs that it could not certify any individual as an American Indian "without checking with the Governor's Council or the Bureau of Indian Affairs or Tribal Chief." Whether these "instructions" were written or oral was not disclosed. In any event, the Department thereafter began to require additional documentation from applicants asserting that they were American Indians. For that reason the Department refused to accept certified documents from the States of Kentucky and West Virginia as adequate proof of minority status. As a matter of policy, the Department now requires proof in the form of approval by (1) the Governor's Council, or (2) the Bureau of Indian Affairs, or (3) a certificate from the chief of the tribe attesting to the fact that the individual is active in the tribe and considered a member of the tribe by the community.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

      
      

   10. Chapter 14-78, Florida Administrative Code, prescribes the rules governing participation by minority business enterprises in Department of Transportation contracts. As is pertinent here, Rule 14-78.01(5)(g) defines the term "minority" to include:

       
       

       ... a person who is a citizen or lawful permanent resident of the United States and who is

       (4)American Indian and Alaskan Native (a person having origins in any of the original peoples of North America)

       
       

   11. Rule 14-78.05(3)(a), Florida Administrative Code, provides in pertinent part:

       
       

       (3)In certifying a firm as an MBE, the Department shall consider but not be limited to the following standards: (a)Bona fide minority group membership shall be established on the basis of the individual's claim that he or she is a member of a minority group and is so regarded by that particular minority community. However, the Department is not required to accept this claim if it determines the claim invalid.

   12. Petitioner contends that it has furnished sufficient documentation to verify its claim. This included certified copies of birth certificates of Mrs. Hayward and her mother, and a death certificate of her mother, from the States of West Virginia and Kentucky attesting to the fact that they are American Indians. Having done so, Petitioner has established a prima facie case to support its claim. See J.W.C. Company, Inc. v. Fla. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). The burden of controverting this preliminary showing then shifts to Respondent. Other than asserting that the documentation was "insufficient" and in contravention of certain "instructions" and current Department policy, Respondent did not refute the authenticity of the documentation offered by Petitioner, or the testimony of Mrs. Hayward.

       
       

   13. While Respondent justifiably may wish to impose more stringent standards for establishing minority membership than Petitioner has met, it has failed to codify such requirements by formal rule. Nonetheless, the agency may elect to formulate this incipient policy in a non-rule proceeding; however, it can do so only where adequate support for its decision in the record exists. See Florida Cities Water Co. v. Fla. Public Service Comm., 384 So.2d 1280 (Fla. 1980).

       
       

   14. In the case at bar, there is no record foundation to justify its insistence that more documentation be supplied, or to support its non-rule policy that any documentation submitted be subject to approval by the Governor's Council or Bureau of Indian Affairs, or that the Tribal Chief furnish a certificate. 1/ This being so, the application should be approved.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Hayward Trucking, Inc. for

certification as a minority business enterprise be GRANTED.

DONE and ENTERED this 11th day of June, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1982.

ENDNOTE

1/ These requirements are apparently based on "instructions" received at a meeting involving the MBE liason officer and other agencies; however, this falls far short of constituting sufficient evidence to justify the use of its policy in this proceeding.

COPIES FURNISHED:

Norman J. Bolinger, Esquire

3100 University Boulevard, South Suite 225

Jacksonville, Florida 32216

Vernon L. Whittier, Jr., Esquire and Ella Jane P. Davis, Esquire Department of Transportation

Haydon Burns Building, MS 58 Tallahassee, Florida 32301

Docket for Case No: 82-000509

Orders for Case No: 82-000509