STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEDI ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-1527

) 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 July 2, 1984, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Thomas G. Brown, Esquire

Florida National Bank Building

301 First Street

West Palm Beach, Florida 33401

For Respondent: Mark A. Linsky, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

BACKGROUND

Petitioner, JEDI Enterprises, Inc., filed an application dated December 14, 1983 for certification as a minority business enterprise with respondent, Department of Transportation. On March 28, 1984, respondent advised petitioner by letter that its application was denied on the grounds the enterprise was not an independent business entity, that there was a lack of required minimum control and day-to-day decision making by its minority principal, and that the minority principal had failed to make a real and substantial contribution of capital or expertise as required by Rule 14-78.05, Florida Administrative Code.

On April 3, 1984, 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 April 27, 1984, with a request that a hearing officer be assigned to conduct a hearing. By Notice of Hearing dated June 11, 1984, the final hearing was scheduled for July 2, 1984, in West Palm Beach, Florida.

At the final hearing petitioner presented the testimony of its president and chairman of the board, Dr. Marshall Jenkins, and Clyde R. Dunn, minority stockholder, and offered petitioner's exhibits 1-9; all were received into evidence. Respondent presented the testimony of Ira Lee Andrews and Thaddeus Fortune, both Department employees, and offered respondent's exhibits 1 12; all were received into evidence. Additionally, joint exhibit 13 was received in evidence.

The transcript of hearing was filed on July 25, 1984. Proposed findings of fact and conclusions of law were filed by the parties on August 9, 1984, and have been considered by the undersigned in the preparation of this order.

Proposed findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were 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, JEDI Enterprises, Inc., is a Florida corporation located at 707 South Chillingworth Drive, West Palm Beach, Florida. It was formed on November 3, 1983 for the purpose of engaging in both commercial and industrial electrical construction work.

   
   

2. Dr. Marshall Jenkins, a black male, owns 51 percent of the stock of the corporation while Clyde R. Dunn, a white male, owns the remaining 49 percent of the stock.

   
   

3. By application dated December 14, 1983, Marshall sought certification for JEDI as a minority business enterprise with respondent, Department of Transportation. The application was received by respondent on December 21, 1983. There is no evidence that respondent requested any additional information from petitioner, or that the application was incomplete. After conducting a field inspection, and other pertinent review, respondent issued its letter denying the application on March 28, 1984, or more than ninety days after the application was initially filed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Subsection 120.60(2), Florida Statutes, prescribes the time constraints within which an agency must operate in the licensing process. It provides in pertinent part as follows:

   
   

   (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a

   license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require.

   ...Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law.

   ... Any application for a license not approved or denied within the 90-day or shorter time period. ...shall he deemed approved and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued. (Emphasis added)

   
   

6. Rule 14-78.07(1), Florida Administrative Code, tracks the foregoing statute and provides as follows:

   
   

   14-78.07. Procedure for Certification.

   1. The following procedures shall be applicable to any application for certification as an MBE.

      1. Within thirty (30) days after receipt of an application the Department shall examine the application and notify the applicant in writing of any apparent errors or omissions and request any needed additional information.

      2. The Department shall approve or deny every application for certification as an MBE within ninety (90) days after receipt of the original application or receipt of timely requested additional information or correction or errors or omissions.

         (Emphasis added)

         
         

7. The evidence reveals the application was filed by petitioner on December 21, 1983, and that respondent did not notify the applicant of any apparent errors or omissions, or request any additional information. The record also reflects that the agency did not approve or deny the application for certification within ninety days after receipt of the application. Instead, the agency issued its proposed agency action on March 28, 1984, or more than ninety days after the date of filing.

   
   

8. The law expressly provides that "(a)ny application for a license not approved or denied within the 90-day...period... shall be deemed approved and...the license shall be issued." (Emphasis added) Subsection 120.60(2), Florida Statutes. Accordingly, by failing to comply with the ninety day requirement embodied in Subsection 120.60(2), the application was automatically approved by operation of law after the ninety days had run. Cf., World Bank v. Lewis, 425 So.2d 77 (Fla. 1st DCA 1982).

RECOMMENDATION

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

certification as a minority business enterprise be APPROVED.

DONE and ENTERED this 27th day of August, 1984, 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 27th day of August, 1984.

COPIES FURNISHED:

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

Thomas G. Brown, Esquire Florida National Bank Bldg.

301 First Street

West Palm Beach, Florida 33401

Mark A. Linsky, Esquire Haydon Burns Bldg., M.S. 58

Tallahassee, Florida 32301-8064

Docket for Case No: 84-001527

Orders for Case No: 84-001527