STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAREH CONSTRUCTION COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2878

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 16, 1987, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Fred Wareh, pro se

Wareh Construction Company 6048 Chester Circle

Jacksonville, Florida 32217

For Respondent: Judy Rice

Senior Attorney

Department of Transportation Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458 PROCEDURAL STATEMENT

In 1987 the Petitioner, Fred Wareh, filed an application for certification of Wareh Construction Company as a disadvantaged business enterprise with the Respondent, the Department of Transportation (hereinafter referred to as the "Department"). Mr. Wareh's application was denied by the Department by letter dated June 16, 1987. Mr. Wareh requested an administrative hearing to contest this proposed decision.

At the formal hearing Mr. Wareh testified on his own behalf. Mr. Wareh also offered 1 exhibit which was marked as "Petitioner's" exhibit 1 and accepted into evidence.

The Department presented the testimony of Juanita Moore. The Department also offered 7 exhibits which were marked as "DOT" exhibits and accepted into evidence.

The Department has filed a proposed recommended order which contains proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed

finding of fact has been accepted or rejected in the Appendix which is attached hereto. Mr. Wareh has not filed any proposed findings of fact.

ISSUE

Whether Mr. Wareh's business qualifies for certification as a disadvantaged business enterprise?

FINDINGS OF FACT

1. Mr. Wareh was born Mohammad Faiz Wareh in Damascus, Syria. He is now a citizen and permanent resident of the United States.

   
   

2. Mr. Wareh is the president and majority owner of Wareh Construction Company, which is located in Jacksonville, Florida.

   
   

3. Mr. Wareh owns 51% of the stock of Wareh Construction Company and his wife owns the remaining 49%.

   
   

4. Wareh Construction Company is located in Jacksonville, Florida.

   
   

5. From September 20, 1983 to September 20, 1984, Wareh Construction Company was certified by the Department as a minority business enterprise under Rule 14-78, Florida Administrative Code, as it existed at that time. Mr. Wareh was recognized as an Asian American for this classification.

   
   

6. The certification of Wareh Construction Company as a minority business enterprise in September, 1983, was for 1 year. This certification expired in September, 1984, because Mr. Wareh did not reapply for certification in 1984.

   
   

7. On or about May 28, 1987, Mr. Wareh mailed a Florida Department of Transportation D/WBE Certification and Recertification Schedule A to the Department seeking certification as a disadvantaged business enterprise.

   
   

8. By letter dated June 16, 1987, the Department denied the application for certification as a disadvantaged business enterprise filed by Mr. Wareh. The Department based its denial upon its conclusion that the requirements of Rule 14-78.05(3)(b)1, Florida Administrative Code, had not been met.

   
   

9. Mr. Wareh has not applied to the Small Business Administration for certification as a socially and disadvantaged individual.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

11. Mr. Wareh is seeking approval of a request for certification of Wareh Construction Company as a disadvantaged business enterprise. The burden of proving entitlement to such certification is on Mr. Wareh. Rule 28-6.008, Florida Administrative Code; Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974).

12. Mr. Wareh's business was previously qualified by the Department as a minority business enterprise. His business was qualified based upon his status as an "Asian American." Because his heritage has not changed Mr. Wareh believes that he still qualifies as an Asian American. What Mr. Wareh has failed to understand is that the law has changed with regard to who qualifies as a disadvantaged group since the classification of Wareh Construction Company as a minority business enterprise expired.

    
    

13. Prior to May 23, 1984, Rule 14-78.05(3), Florida Administrative Code, provided that a firm would be treated as a minority business enterprise if, among other things, the business was owned and controlled by a member of a minority group. See also, Rule 14-78.03(5)(h), Florida Administrative Code.

    
    

14. Pursuant to Rule 14-78.03(5)(g), Florida Administrative Code, a "minority" was defined, in pertinent part, as follows:

    
    

    "Minority" means a person who is a citizen or lawful permanent resident of the United States and who is

    1. Black . . .;

    2. Hispanic . . .;

    3. Asian American (a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands); or

    4. American Indian and Alaskan Native

       . . . .;

    5. Members of other groups, or other individuals, found to be economically and socially disadvantaged by the Small Business Administration under Section 8(a) of the Small Business Act, as amended (15 USC 637(a)(3)).

       
       

15. Based upon the foregoing rules, the Department correctly treated Mr. Wareh as a "minority" person in 1983 when he first applied for minority business enterprise status for the company he owns and controls.

    
    

16. Unfortunately for Mr. Wareh, the Department amended the rules governing certification of disadvantaged business enterprises in 1984. Effective May 23, 1984, Rule 14- 78.005(3)(b), Florida Administrative Code, was amended to provide the following, in pertinent part:

    
    

    (3) A firm seeking certification as a DBE . . . shall meet the following standards:

    . . . .

    1. The firm must be at least 51 percent owned and controlled by one or more . . . socially and economically disadvantaged individuals . . . .

       1. Members of the groups named in Rule 14-78.002(1) are presumed to be socially and economically disadvantaged; provided, however, this presumption is rebuttable. . . .

       2. Individuals certified by the Small Business Administration, pursuant to Section 8(a) of the Small Business Act (15 USC 637), as socially and economically disadvantaged, shall be accepted as socially and economically disadvantaged individuals for purposes of this rule chapter.

       . . . .

       
       

17. Pursuant to Rule 14-78.005(3)(b), Florida Administrative Cod , as now in effect, Mr. Wareh must be "socially and economically disadvantaged" as those terms are defined in Rule 14-78.002(1), Florida Administrative Code, or he must be an individual certified by the Small Business Administration as socially and economically disadvantaged pursuant to the Small Business Act, in order for Wareh Construction Company to be certified as a disadvantaged business enterprise.

    
    

18. Rule 14-78.002(1), Florida Administrative Code, defines "socially and economically disadvantaged individuals" as:

    
    

    those individuals who are citizens of the United States or lawfully admitted permanent residents and who are Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, or Asian-Indian Americans, and any other minorities or individuals certified as disadvantaged by the Small Business Administration . . . . Individuals in the following groups are presumed to be socially and economically disadvantaged, provided, however, this presumption is rebuttable:

    . . . .

    1. "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U. S. Trust Territories of the Pacific and the Northern Marianas;

    . . . .

    (e) "Asian-Indian Americans," which includes persons whose origins are from India, Pakistan, and Bangladesh.

    
    

19. Pursuant to Rule 14-78.002(1)(c) and (e), Florida Administrative Code, the category of Asian Americans has been divided into Asian-Pacific Americans and Asian-Indian Americans for purposes of certification as a disadvantaged business enterprise. The Asian-Pacific Americans and Asian-Indian Americans categories have been defined to include only individuals from the specific countries listed in the rule. Syria, Mr. Wareh's country of origin, is not one of the countries listed. Mr. Wareh, therefore, no longer qualifies as an Asian American under the definitions of the Department's rules.

    
    

20. Mr. Wareh also has not been certified by the Small Business Administration as socially and economically disadvantaged.

21. Based upon the foregoing, Mr. Wareh no longer quali- fies as a socially and economically disadvantaged individual under the Department's rules as they currently exist. Therefore, Wareh Construction Company is not owned and controlled by a socially and economically disadvantaged individual.

    
    

22. It is not clear exactly what legal arguments Mr. Wareh has advanced in support of his position. It is probable, however, that Mr. Wareh believes that the Department's exclusion of persons whose origins are in Syria from its definition of socially and economically disadvantaged persons is improper. This proceeding was initiated by Mr. Wareh pursuant to Section 120.57(1), Florida Statutes. He cannot, therefore, challenge the propriety of the Department's rules in this proceeding. In order to challenge the rules which define those persons who are socially and economically disadvantaged, a proceeding must be instituted pursuant to Section 120.56, Florida Statutes.

    
    

23. Mr. Wareh has also cited two federal court cases in support of his position. Saint Francis College v. Majid Ghaidan Al-Khazrai, 95 L. Ed 2d 582 (1987); and Shaare Tefila Congregation vs. John William Cobb, 95 L. Ed. 2d 594 (1987). These cases are inapplicable to this proceeding. They involve challenges to federal laws not applicable in this case.

    
    

24. Finally, Mr. Wareh has raised constitutional questions. The Division of Administrative Hearings has no jurisdiction to address those constitutional questions. See Cook v. Florida Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Wareh Construction Company for

certification by the Department as a disadvantaged business enterprise be denied.

DONE and ENTERED this 4th day of February, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

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 4th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2878

The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if

any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Department's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. 1 and 2.

2. Hereby accepted.

3 4.

1. 5 and 6.

2. 7 and 8.

3. Primarily conclusions of law. To the extent that facts are included in this proposed paragraph, they are hereby accepted.

4. Conclusion of Law.

8-9 Irrelevant.

10 9.

1. Irrelevant.

2. Conclusion of law.

COPIES FURNISHED:

Fred Wares

Wareh Construction Company 6048 Chester Circle

Jacksonville, Florida 32217

Judy Rice Senior Attorney

Department of Transportation Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner, M.D. 58

Thomas H. Bateman, III General Counsel

562 Haydon Burns Building 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

Docket for Case No: 87-002878

Orders for Case No: 87-002878