STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDCO, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-1219

)

STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice, a formal hearing was held in this case on May 29, 1990, in Tallahassee, Florida. The authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: William D. Whitlock, III, Esquire

Barrett, Bajoczky, Hoffman and Harper

131 North Gadsden Street Post Office Box 1501 Tallahassee, FL 32302-1501

For Respondent: William P. Martin, Esquire

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, FL 32399-0458 STATEMENT OF ISSUES

The issues for consideration concern the question of whether Sandco, Inc. (Sandco) is entitled to be recognized for certification by the State of Florida, Department of Transportation (Department) as a Disadvantaged Business Enterprise (DBE) pursuant to Chapter 14-78, Florida Administrative Code.

PRELIMINARY STATEMENT

This Recommended Order is being entered following review of the exhibits submitted by Sandco and upon consideration of the hearing transcript filed with the Division of Administrative Hearings on June 8, 1990.

The proposed recommended orders of the parties have also been considered. The fact-finding suggested in those proposed recommended orders is commented on in the Appendix to this Recommended Order.

At hearing it was acknowledged by counsel for the parties that the only issue that remains to be decided is whether Sandco by definition is entitled to recognition as a DBE. See Rule 14-78.002, Florida Administrative Code.

FINDINGS OF FACT

1. On August 28, 1989, Sandco submitted its request for DBE certification to the Department. On other occasions where Sandco had sought this form of recognition it had been denied certification by Leon County and the State of Florida, Department of General Services. It had been successful in that endeavor with the City of Tallahassee. The similarity or dissimilarity between the requirements for certification with the Department and the City of Tallahassee was not identified at hearing.

   
   

2. Sandco is a general construction firm which emphasizes site work and excavation. It has three owners who share a one-third interest in the company. They are: Mr. Behzad Ghazvini-Najad, Mr. Mehran Ghazvini-Najad, and. Mr. Mehrdad Ghazvini-Najad. They are in turn the President, Vice President and Secretary/Treasurer for the corporation.

   
   

3. After review of the application the Department in the person of Juanita Moore, Director of Minority Programs Bureau, notified the applicant that the certification request had been denied. This notification came on about January 31, 1990. On February 12, 1990, Sandco requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.

   
   

4. The owners of Sandco, according to the documents submitted with the application, are Iranians who have become naturalized Americans. Further explanation of their heritage was not made through the course of these proceedings.

   
   

5. In lieu of specific reference to the family experience of the principals in the Sandco corporation, they presented information said to be from the Encyclopedia Britanica. In addition, in the correspondence which enclosed the application materials, the Sandco President made certain references which he asserts are from Races of Mankind: Their Origin and Migration, by Calvin Kephart and Fieldiana: Anthropology, by the Chicago Natural History Museum, in particular the volume Contributors to the Anthropology of Iran by Henry Field. Excerpts from the Encyclopedia Britanica were included with the application and presented at hearing. The other two reference sources as excerpts were not submitted.

   
   

6. The references from the Encyclopedia Britanica at pages 881, 883 and 884 pertain to 79 A.D. through 651 A.D. and do not describe a sufficient relationship with tihe region which includes modern day India, Pakistan and Bangladesh to say that the principals in the applicant corporation are "Asian/Indian Americans" within the meaning of Rule 14-78.002(1)(e), Florida Administrative Code.

   
   

7. Because the other texts from which this material is quoted was not provided it may not be confirmed for fact finding purposes nor can any fact be found about a map which is allegedly attributable to the Field book.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Sandco bears the burden of proving its entitlement to be recognized as a DBE. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

10. Recognition of the status as a certified E)BE is in accordance with Sections 337.0805, 3137.125, 337.135 and 337.137, Florida Statutes, concerning programs administered by the Department which allow for competitive advantages and preferential treatment for persons who are eligible to participate as certified DBEs. These are referred to as a sheltered program, or set-aside contracts with DBE subcontract goals.

    
    

11. The method of recognition of those minorities is announced at Rule 14- 78.002, Florida Administrative Code, which states:

    
    

    1. "Socially and economically disadvantaged individuals" means those individuals who are citizens of the United States or lawfully admitted permanent residents and who are women, 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 pursuant Section 8(a) of the Small Business Act (15 U.S.C. 637) and implementing regulations. Individuals in the following groups are presumed to be socially and economically disadvantaged, provided, however, this presumption is rebuttable:

       1. "Black American," which includes persons having origins in any of the black racial groups of Africa;

       2. "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish or Portuguese culture or origin, regardless of race;

       3. "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;

       4. "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians, or members of the American Indian Tribes acknowledged by the Secretary of the Interior, or persons who are certified by such American Indian tribes as being eligible for membership in their tribes. "Acknowledged by the Secretary of

          the Interior" means those American Indian tribes whose tribal existence has been acknowledged by the Department of the Interior pursuant to 25 CFR, Part 83.

       5. "Asian-Indian Americans," which includes persons whose origins are from India, Pakistan, and Bangladesh;

       6. women.

          
          

12. Sandco claims recognition as an "Asian-Indian American" corporation based upon the fact that its controlling management and stockholders were Iranians who became naturalized Americans. They have failed in that proof.

    
    

13. To understand the meaning of place of origin referred to in the Rule and whether Sandco has a controlling group of "Asian- Indian Americans" from or descendent from the region of India, Pakistan and Bangladesh reference is made to the case of Espinoza v. Farrah Manufacturing Co., Inc., 441 U.S. 85, 94 S.Ct. 334, 38 L.Ed. 287 (1973) at page 336 wherein is found a definition of "national origin" as it pertaining to Title IV of the Civil Rights Acts of 1964. It states:

The term "national origin" on its face refers to the country where a person was from or, more broadly, a country from which his or her ancestors came.

Applying this test of place of origin the applicants must show that they or their ancestors descended from the area to which they claim ethnic affiliation. It is not enough to describe in general terms the common thread of ancient civilizations as a means to describe this connection. (Even there the applicants are lacking in competent proof). More significantly, while it is a more uncertain process to ascertain the number of generations you may go back to examine the origins of the present generation of applicants, given that the applicants have failed to provide any information concerning their lineage, this causes the issue to be resolved by examining their generation alone. As such, they are Iranians who have become Americans through naturalization. They are not Asian-Indians from the geographical area of India, Pakistan and Bangladesh. The references provided do not adequately establish the limited perspective of their life history as Iranians who have become naturalized Americans as a cultural matter and that experience of Asian-Indian cultures to say that they are synonymous. This describes the use of overall cultural identity as contrasted with familial identity. In summary, the applicant is not entitled to be recognized as a DBE.

RECOMMENDATION

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

RECOMMENDED:

That the application by Sandco to be certified as a DBE be denied.

DONE and ENTERED this 29th day of June, 1990, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division Administrative Hearings this 29th day of June, 1990.

APPENDIX CASE NO. 90-1219

The following discussion is given concerning the proposed findings of fact of the parties.

Petitioner's Facts:

Paragraphs 1 is a statement of the controlling rule which is set out in the conclusions of law.

Paragraphs 2 and 3 are s1ubordinate to facts found. Paragraphs 4 and 5 are contrary to facts found.

Respondent' s Facts:

All are subordinate to facts found.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458

William D. Whitlock, III, Esquire Barrett, Bajoczky, Hoffman and Harper

131 North Gadsden Street Post Office Box 1501 Tallahassee, FL 32302-1501

William P. Martin, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, FL 32399-0458

Docket for Case No: 90-001219

Orders for Case No: 90-001219