STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MECHANICAL AIR PRODUCTS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0545

) STATE OF FLORIDA, DEPARTMENT ) OF MANAGEMENT SERVICES, ) COMMISSION ON MINORITY ECONOMIC ) AND BUSINESS DEVELOPMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing by video technology in the above-styled case on July 17, 1995, in Tallahassee and Jacksonville, Florida.

APPEARANCES

For Petitioner: Otto A. Lawrenz, pro se

Mechanical Air Products Post Office Box 17746

Jacksonville, Florida 32245

For Respondent: Joseph L. Shields, Esquire

Senior Attorney Commission On Minority

Economic And Business Development

107 West Gaines Street

201 Collins Building Tallahassee, Florida 32399-2005

STATEMENT OF THE ISSUE

The issue to be considered in this matter is whether Petitioner meets the requisite qualifications for certification as a minority business enterprise (MBE).

PRELIMINARY STATEMENT

By letter dated January 6, 1995, Respondent advised Petitioner of the denial of Petitioner's application for certification as an MBE.

By letter dated January 27, 1995, Petitioner requested formal administrative proceedings to challenge Respondent's denial decision. Subsequently, the matter was transferred to the Division of Administrative Hearings for the conduct of such proceedings.

At the final hearing, Petitioner presented the testimony of its sole owner, Otto Lawrenz. Respondent presented testimony of one witness and two exhibits.

No transcript of the final hearing was provided. Both parties submitted proposed findings of fact following the final hearing. Those proposed findings are addressed in the appendix attached to this recommended order.

FINDINGS OF FACT

1. Otto A. Lawrenz, a Native American, is the sole owner of Petitioner, Mechanical Air Products (MAP), located in Jacksonville, Florida.

   
   

2. Petitioner was certified from December 12, 1992, through December 12, 1993, as a minority business enterprise (MBE).

   
   

3. Recertification for Petitioner as an MBE for the period December 12, 1993 through December 12, 1994, occurred without incident following application by Petitioner.

   
   

4. Petitioner is a business which specializes in provision of heating, ventilation and air conditioning equipment to its customers.

   
   

5. Following application in December, 1994, Respondent denied Petitioner's request for recertification as an MBE by letter dated January 6, 1995.

   
   

6. Respondent's denial of Petitioner's recertification resulted from amendments to Respondent's definition of "[r]egular dealer" as set forth in Rule 60A-2.001(10), Florida Administrative Code, and Respondent's determination that Petitioner did not meet that definition.

   
   

7. Petitioner does not own, operate or maintain a store, warehouse or other establishment. As stated by Otto A. Lawrenz in correspondence to Respondent and reaffirmed by him at the final hearing, Petitioner is:

   
   

   1. manufacturer representative type of business that buys directly from various suppliers and factories I [Lawrenz] repre- sent. The products are purchased from this company and shipped direct to customers ship to address. I [Lawrenz] do not stock these products for inventory.

      
      

      Petitioner is presently provided some storage space free of charge by another, unaffiliated business, for storage of some products.

      
      

      CONCLUSIONS OF LAW

      
      

8. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

9. The burden of proof is upon Petitioner to show entitlement to the certification which he seeks. Fla. DOT v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA, 1981).

   
   

10. Rule 60A-2.001(10), Florida Administrative Code, provides:

    "Regular dealer" means a firm that owns, operates or maintains a store, warehouse

    or other establishment in which the material or supplies required for the performance

    of the contract are bought, kept in stock and regularly sold to the public in the usual course of business. To be a regular dealer, the firm must engage in, as its principal business and in its own name, the purchase and sale of products. A regular dealer in such bulk items as steel, cement, gravel, stone and petroleum products, does not need to keep such products in stock, if the dealer owns or operates the appropriate distribution facility and/or equipment, either of which shall be used by the business as its primary

    means to provide and deliver products to customers.

    
    

11. Further, manufacturers' representatives, non-stocking distributors or sales representatives may not be considered "regular dealers." Rule 60A- 2.005(7)(a), Florida Administrative Code.

    
    

12. Petitioner is aggrieved that Respondent's amended administrative rules, resulting from legislative changes affecting Sections 288.701-288.714, Florida Statutes, dealing with minority businesses, have eliminated Petitioner's qualifications as an MBE. Petitioner's concerns that Respondent's rules do not correctly implement the statutes governing certification are more appropriately addressed in a rule challenge proceeding pursuant to Section 120.56, Florida Statutes. In the instant case, Respondent's rules must prevail.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the application for certification as an MBE.

DONE and ENTERED in Tallahassee, Florida, this 14th day of August, 1995.

DON W. DAVIS, 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 14th day of August, 1995.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

Petitioner's Proposed Findings

Petitioner's post-hearing submittal consisted of documentation, not provided at the final hearing, dealing with Petitioner's heritage, and his arguments of the law relative to this case. Consequently, those matters are addressed as not relevant and argumentative for purposes of this proceeding. Petitioner may attack the rules applied to his case in a separate rule challenge proceeding.

Respondent's Proposed Findings

1.-4. Accepted, but not verbatim.

COPIES FURNISHED:

Otto A. Lawrenz Mechanical Air Products P O Box 17746

Jacksonville, FL 32245

Joseph L. Shields, Esq. Commission On Minority Economic

And Business Development

107 W Gaines St., 201 Collins Bldg. Tallahassee, FL 32399-2005

Crandall Jones Executive Administrator

Commission on Minority Economic and Business Development

107 W. Gaines St., 201 Collins Bldg. Tallahassee, FL 32399-2005

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: 95-000545

Orders for Case No: 95-000545