STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FABIAN'S ELECTRICAL )

CONTRACTING, INC., )

)

Petitioner, )

vs. ) CASE NO. 92-6777

) DEPARTMENT OF MANAGEMENT SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Robert T. Benton, II, held a formal hearing in the above-styled case on April 5, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael F. Coppins

Gwendolyn P. Adkins Cooper & Coppins, P.A.

515 North Adams Street Tallahassee, Florida 32302

For Respondent: Cindy Horne

Department of Management Services Office of the General Counsel Suite 309 Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner is entitled to recertification as a minority business enterprise.

PRELIMINARY STATEMENT

This case began on October 8, 1992, when the Department of Management Services (Department) issued a letter denying Petitioner's request for certification as a minority business enterprise (MBE). The Department alleged that Petitioner was not entitled to recertification as he did not meet the criteria for same as set forth in Rules 60A-2.001(5) and 60A-2.001(8), Florida Administrative Code.

Petitioner timely challenged the denial of certification, filed a rule challenge to Rule 60A-2.001(8), Florida Administrative Code (DOAH case no. 93- 1594R), and this matter was forwarded to the Division of Administrative Hearings

for formal proceedings on November 10, 1992. By order entered March 30, 1993, this case was consolidated for hearing with the rule challenge. Issues related to the rule challenge are addressed in the final order entered in DOAH case no. 93-1594RX.

At the hearing conducted on April 5, 1993, the Petitioner presented the testimony of the following witnesses: Anthony Charles Fabian, an electrical contractor, president of Fabian's Electrical Contracting, Inc.; Cheryl Mendenhall Thompson, an employee and shareholder of Fabian's Electrical Contracting, Inc.; Marsha Nims, a certification administrator for the Minority Business Enterprise Program; and Gerald Thompson, owner of Lewis & Thompson Electric Service, electrical contractors. The Petitioner's exhibits numbered 1 through 9 for identification were admitted into evidence.

The Department presented testimony from Marsha Nims; and Hector De La O, a certification officer with the Bureau of Minority Business Assistance; and, by deposition, the testimony of Carolyn Wilson Newton, former chief of the Bureau of Minority Business Assistance; and Olugbemi Moloye, Ph. D., an anthropologist. The Department's exhibits numbered 1 through 4, 4A, 5, and 6 were also admitted into evidence. The parties waived the requirements of Rule 28-5.402, Florida Administrative Code, and filed their proposed orders on June 17 and 21, 1993.

Rulings on the proposed findings of fact are included in the appendix at the conclusion of this order.

On January 13, 1994, the Director of the Division of Administrative Hearings entered a notice of unavailability of hearing officer and order of assignment of new hearing officer that directed the parties to advise the new hearing officer as to whether they contended any additional information or argument was warranted. In response to a request from Petitioner, additional argument was afforded the parties on February 14, 1994. The transcript of that argument was filed on February 25, 1994. This recommended order is written based upon the existing record after having considered the additional argument of counsel.

FINDINGS OF FACT

1. Anthony Charles Fabian, a journeyman electrician, is the president of Fabian's Electrical Contracting, Inc. (FEC).

   
   

2. Mr. Fabian owns 51 percent of the stock in FEC.

   
   

3. FEC was incorporated in 1984 and since that time has been continuously engaged in the electrical contracting business. Although FEC shares office space with other business entities, it is an independent business operation not affiliated with any other business.

   
   

4. In 1987, FEC applied for and received certification as a minority business enterprise (MBE). Mr. Fabian has at all times maintained he is entitled to MBE status as a Hispanic American.

   
   

5. Mr. Fabian was born in Tampa, Florida and lived in a Hispanic neighborhood there until he was six years old.

   
   

6. During the time he resided in Tampa, Mr. Fabian's neighbors, family, and friends used Spanish as their predominant language. The family culture was Cuban as was that of the area where the family resided.

7. At age six Mr. Fabian moved from Tampa to Pensacola, Florida. Mr. Fabian later moved from Pensacola to Tallahassee mid-way through his sixth grade school year. School mates in Pensacola and Tallahassee called him various ethnic nicknames, all related to his Hispanic ancestry. Such names included: "Julio," "Taco," "Spic," "El Cubano," and "Cuban Wheatman."

   
   

8. Other than an affection for Cuban food, Mr. Fabian currently has no cultural practices to tie him to his Hispanic heritage. Mr. Fabian does not speak Spanish. Mr. Fabian does not reside in a predominantly Hispanic community. Mr. Fabian does not practice the religious faith of his progenitors. Mr. Fabian does not instruct his child in any Cuban cultural practice. Mr. Fabian does not know of any Spanish cultural practice that came to him from his family. Mr. Fabian has never been refused work because of his Hispanic heritage.

   
   

9. Mr. Fabian's mother has no Hispanic progenitors.

   
   

10. Mr. Fabian's father, also born in Tampa, Florida, has the following ancestors: his father (Mr. Fabian's grandfather) was born in Spain, his mother (Mr. Fabian's grandmother) was born in Key West. Mr. Fabian's grandmother, Anna Rodriguez Fabian, (who Mr. Fabian spent time with in Tampa) spoke Spanish and claimed Cuban heritage as both of her parents had immigrated from there to Key West. For this reason, Mr. Fabian maintains he is a Cuban from Tampa.

    
    

11. None of Mr. Fabian's grandparents was born in Mexico, South America, Central America, or the Caribbean. He has never claimed otherwise.

    
    

12. Sometime after FEC obtained certification as a MBE, the Department adopted what is now codified as Rule 60A-2.001(8), Florida Administrative Code. Such rule defines "origins" as used in Section 288.703(3)(b), Florida Statutes, to mean that a Hispanic American must substantiate his cultural and geographic derivations by at least one grandparent's birth.

    
    

13. In July, 1992, when FEC submitted its recertification affidavit, the Department notified Mr. Fabian that he had failed to establish that at least one of his grandparents was born in one of the applicable geographic locations. Accordingly, Mr. Fabian was advised his request for recertification would be denied.

    
    

14. Approximately eleven other persons have been denied minority status because they were unable to substantiate origin by the birth of a grandparent. Of those eleven, none had been previously certified. FEC is the only formerly certified MBE which has been denied recertification because of the rule.

    
    

15. However, when FEC was granted certification in 1987 it was not based upon the Department's agreement that Mr. Fabian met the statutory definition of a Hispanic American. Such certification was issued in settlement to the preliminary denial of certification since the word "origins," as used in the statute, had not as yet been defined by rule. Additionally, the recertification of FEC was based upon Department error and not an acceptance that Mr. Fabian met the "origins" test.

    
    

16. Finally, in 1991, the Department cured the rule deficiencies to create parallel requirements for certification and recertification for MBE status.

    When FEC submitted it recertification affidavit under the current rule, the request was denied. Mr. Fabian has been aware of the Department's position regarding his requests for certification from the outset.

17. The Department promulgated the "origins" rule in response to a number of applications for MBE status from persons with distant relations or ancestors within the minority classifications. The necessity for an "origins" rule was demonstrated since the Department needed a clear standard which staff and the public could recognize as the dividing line for who would and would not qualify as a Hispanic American, and since the purpose of the program is to provide preferences in contracting to businesses run by individuals who have been disadvantaged. The standard devised afforded a narrowly drawn, recognizable criterion.

    
    

18. In deciding to use the grandparent test, the Department looked to outside sources. Since there was no legislative history resolving the "origins" issue, the Department sought guidance from dictionary definitions and statutory uses in other contexts.

    
    

19. In promulgating the rule, the Department gave notice to outside sources, including groups listed in the publication Doing Business in Florida, such as the Department of Commerce, Bureau of Commerce, small business development centers, community development corporations, local minority business certification offices, and the Minority Business Advocate's office.

    
    

20. At the public hearing conducted for the purpose of receiving input regarding the grandparent test, no one offered opposition to the "origins" definition.

    
    

21. Mr. Fabian is not a black American as defined in Section 288.703(3)(a), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

23. Section 288.703, Florida Statutes, provides, in pertinent part:

    
    

    As used in this act, the following words and terms shall have the following meanings unless the content shall indicate another meaning or intent:

    * * *

    1. "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 and whose management and daily operations are controlled by such persons. A minority business enterprise may primarily involve the practice of a profession.

    2. "Minority person" means a lawful, permanent resident of Florida who is:

       1. A black American, a person having origins in any of the black racial groups of Africa.

       2. A Hispanic American, a person of Spanish or Portuguese culture with origins in Mexico, South America, Central America, or the Caribbean, regardless of race.

          * * *

    3. "Certified minority business enterprise" means a business which has been certified by the Department of General Services to be a minority business enterprise.

24. Rule 60A-2.001(5), Florida Administrative Code, provides, in part: "Minority" means a lawful, permanent resident

    of the State of Florida who is a :

    * * *

    (b) Hispanic American, a person of Spanish or Portuguese culture with origins in Mexico, South America, Central America, or the Caribbean Islands, regardless of race;

25. Rule 60A-2.001(8), Florida Administrative Code, provides: "Origins" means the minority owner's racial

    or cultural and geographic derivations, as

    substantiated by at least one grandparent's birth.

    
    

26. Thus, an applicant for MBE status who is a person of Spanish or Portuguese culture and who can establish that at least one grandparent was born in Mexico, South America, Central America, or the Caribbean Islands may qualify for certification.

    
    

27. Based upon the foregoing, the Petitioner has failed to establish that he has at least one grandparent from the geographic region specified by the statute. In accordance with the rule, he is unable to qualify his business since he is not a person of Spanish or Portuguese culture with origins in Mexico, South America, Central America, or the Caribbean Islands as substantiated by at least one grandparent's birth.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Management Services enter a final order denying Petitioner's recertification as a minority business enterprise.

DONE AND RECOMMENDED this 28th day of April, 1994, in Tallahassee, Leon County, Florida.

Joyous D. Parrish 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 of Administrative Hearings this 28th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6777

Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 7, 10, 11, 13, 14, 16, 17, 19, 20, 22

through 25, 28 through 31, 33 through 41, 43, 44, 46

through 50, 60, 64, and 70 are accepted.

1. The first sentence in paragraph 8 is accepted. With regard to the second sentence it is accepted that the neighbors et al enjoyed Cuban food and cultural aspects but spoke Spanish. No proof was submitted that a language of "Cuban" was spoken by the community.

2. The last sentence of paragraph 12 is rejected as irrelevant, otherwise the paragraph is accepted.

3. Paragraph 15 is rejected as irrelevant.

4. Paragraph 18 is rejected as an incomplete statement of fact which, of itself, is insufficient to stand without further clarification; therefore rejected as not supported by the total weight of the credible evidence.

5. Paragraph 21 is rejected as irrelevant.

6. Paragraph 26 is rejected as repetitive and unnecessary.

7. With regard to paragraph 27 it is accepted Mr. Fabian has 16 years of experience, otherwise rejected as repetitive and unnecessary.

8. The first sentence of paragraph 32 is accepted. The remainder of the paragraph is rejected as not supported by the evidence or irrelevant. Mr. Fabian does have a phone number whether that number is listed in the telephone book is not supported by the record cited.

9. Paragraph 42 is rejected as irrelevant.

10. The first two sentences of paragraph 45 are accepted. It is also accepted that Lewis & Thompson have used other minority subcontractors. Whether they "regularly" use them is irrelevant.

11. The first sentence of paragraph 51 is accepted; the remainder is rejected as comment or argument.

12. With regard to paragraph 52, it is accepted that Mr. De La O did not visit a job site; otherwise rejected as irrelevant.

13. Paragraphs 53, 54, and 55 are accepted as the applicable law

    of this case, not fact.

14. Paragraph 56 is rejected as contrary to the weight of the credible evidence.

15. Paragraph 57 is rejected as contrary to the weight of the credible evidence; the definition also applies to other minorities.

16. Paragraph 58 is accepted as a partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence.

17. Paragraph 59 is accepted as a partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence.

18. Paragraph 61 is accepted as a partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence.

19. Paragraph 62 is rejected as argument.

20. Paragraph 63 is rejected as irrelevant or argument.

21. Paragraph 65 is rejected as irrelevant or argument.

22. Paragraph 66 is rejected as argument.

23. Paragraphs 67, 68, and 69 are rejected as irrelevant or incomplete statements.

24. Paragraphs 71 through 73 are rejected as irrelevant, unnecessary or repetitive.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1, 4, 5, 6, 8, 12, and 17 are accepted.

2. With regard to paragraph 2, the first, second, sixth and seventh sentences are accepted; the remainder is rejected as a recitation of testimony, not statements of fact.

3. The first sentence of paragraph 3 is accepted, the remainder is rejected as a recitation of testimony, not statements of fact.

4. The first sentence of paragraph 9 is accepted; the remainder is rejected as argument or partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence.

5. The second and third sentences of paragraph 11 are accepted, the first rejected as recitation of testimony, not statements of fact.

6. Paragraph 13 is rejected as argument or partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence.

7. Paragraph 14 is rejected as argument or partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence.

8. Paragraph 15 is rejected as irrelevant.

9. Paragraph 16 is rejected as partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence.

COPIES FURNISHED:

Michael F. Coppins Gwendolyn P. Adkins Cooper & Coppins, P.A.

515 North Adams Street Tallahassee, Florida 32302

Cindy Horne

Department of Management Services Office of the General Counsel Suite 309 Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-0950

William H. Lindner, Secretary Department of Management Services Suite 307 Knight Building Tallahassee, Florida 32399-0950

Sylvan Strickland Acting General Counsel

Office of the General Counsel Suite 309 Knight Building 2737 Centerview Drive

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 92-006777

Orders for Case No: 92-006777