STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EXPERTECH SUPPLIES, INC., a Florida )

Corporation, AL'S ARMY STORE, INC., ) MECHANICAL AIR PRODUCTS, INC., )

and TAI-PAN TRADING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4042RX

) DEPARTMENT OF MANAGEMENT SERVICES, ) DIVISION OF PURCHASING AND MINORITY ) BUSINESS ADVOCACY AND ASSISTANCE ) OFFICE OF THE COMMISSION ON ) MINORITY AND ECONOMIC DEVELOPMENT, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in this case on September 15, 1995. The hearing was held in the offices of the Division of Administrative Hearings, the DeSoto Building, Tallahassee, Florida. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the hearing officer.

APPEARANCES

For Petitioners: William C. Andrews, Esquire

SCRUGGS & CARMICHAEL, P.A.

One S.E. First Avenue Gainesville, Florida 32601

For Respondents: Joseph Shields, Esquire

Commission on Minority Economic and Business Development Collins Building, Suite 201

107 West Gaines Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

Are Rules 60A-2.001(10) and 60A-2.005(7), Florida Administrative Code, valid exercises of delegated legislative authority?

PRELIMINARY STATEMENT

The Petitioners filed a petition to challenge the validity of Rules 60A- 2.001(10) and 60A-2.005(7), Florida Administrative Code. The Director of the Division of Administrative Hearings reviewed the petition and concluded that the petition met the procedural requirements set forth in Section 120.56, Florida

Statutes. The case was then assigned to Ella Jane P. Davis, hearing officer with the Division of Administrative Hearings.

The hearing was noticed to be heard on September 15, 1995.

Charles C. Adams, hearing officer, substituted for Ms. Davis due to her unavailability to conduct the final hearing.

At hearing the Petitioners presented Joseph H. Anderson, Thomas Rollie Steele, David Allan Callaway, Aileen Schumacher, and Otto Lawrenz, as witnesses. The Respondents presented Marsha Nims as their witness. At the Respondents' request, official recognition was made of excerpts from 41 CFR 50-201.101 and 41 CFR 50-206.

Witnesses testified concerning the standing for Petitioners, Expertech Supplies, Inc. (Expertech) and Mechanical Air Products, Inc. (Mechanical) to bring this action. No witnesses appeared to establish the standing of the Petitioners, Al's Army Store, Inc. (Al's) and Tai-Pan Trading, Inc. (Tai-Pan), to bring this action. No factual stipulation was entered into that supported the standing for the Petitioners, Al's and Tai-Pan, to bring this action.

A hearing transcript was filed on October 2, 1995. On or before October 12, 1995, the parties filed proposed final orders. The fact findings set forth in those proposals are discussed in the Appendix to this final order.

FINDINGS OF FACT

1. On December 22, 1991, the Respondents made amendments to Rules 60A-

   2.001 and 60A-2.005, Florida Administrative Code, related to the certification of a "minority business enterprise" to engage in business with the State of Florida. With the amendments, a definition for the term "regular dealer" was created, which states in pertinent part:

   
   

   60A-2.001 Definitions. . . .

   (10) '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. . . .

   
   

2. The amendments included other requirements that a "minority business enterprise", as defined at Section 288.703(2), Florida Statutes, must meet to be certified to participate in the Respondents' Minority Business Program. (The definition of "minority business enterprise" was changed by Section 288.703(2), Florida Statutes (1994 Supp.). The change does not effect the outcome in the case.)

   
   

3. As promulgated December 22, 1991, Rule 60A-2.005(7), Florida Administrative Code states in pertinent part:

   
   

   1. The applicant business shall establish that it is currently performing a useful business function in each specialty area requested by

      the applicant. For purposes of this rule, "currently" means as of the date of the office's receipt of the application for certification.

      The applicant business is considered to be per- forming a useful business function when it is responsible for the execution of a distinct element of the work of a contract and carrying out its responsibilities in actually performing, managing, and supervising the work involved.

      The useful business function of an applicant business shall be determined in reference to the products or services for which the applicant business requested certification on Form PUR 7500. When the applicant business is required by law to hold a license, other than an occupational license in order to undertake its business activity, the applicant business shall not be considered to be performing a useful business function unless it has the required license(s).

      1. In determining if an applicant business is acting as a regular dealer and that it is not acting as a conduit to transfer funds to a non- minority business, the Office shall consider the applicant's business role as agent or negotiator between buyer and seller or contractor. Though an applicant business may sell products through a variety of means, the Office shall consider the customary and usual method by which the majority of sales are made in its analysis of the applicability of the regular dealer require- ments. Sales shall be made regularly from stock on a recurring basis constituting the usual operations of the applicant business. The proportions of sales from stock and the amount

   of stock to be maintained by the applicant business in order to satisfy these rule requirements will depend on the business' gross receipts, the types

   of commodities sold, and the nature of the business's operations. The stock maintained shall be a true inventory from which sales are made, rather than

   by a stock of sample, display, or surplus goods remaining from prior orders or by a stock main- tained primarily for the purpose of token compliance with this rule. Consideration shall be given to

   the applicant's provision of dispensable services

   or pass-through operations which do not add economic value, except where characterized as common industry practice or customary marketing procedures for a given product. An applicant business acting as broker or packager shall not be regarded as a regular dealer absent a showing that brokering or packaging is the normal practice in the applicant business industry. Manufacturer's representatives, sales representatives and non-stocking distributors shall not be considered regular dealers for purposes of these rules.

4. In passing the rules amendments, the Respondents relied upon authority set forth in Sections 287.0943(5) and 287.0945(3), Florida Statutes. Those statutory sections are now found at Sections 287.0943(7) and 287.0945(6), Florida Statutes (1994 Supp.). Those provisions create the general and specific authority for the Minority Business Advocacy and Assistance Office to effectuate the purposes set forth in Section 287.0943, Florida Statutes, by engaging in rule promulgation.

   
   

5. As it relates to this case, the law implemented by the challenged rules is set forth at Section 287.0943(1)(e)3, Florida Statutes (1994 Supp.), which establishes criteria for certification of minority business enterprises who wish to participate in the Minority Business Program contemplated by Chapter 287, Florida Statutes. That provision on certification was formerly Section 287.0943(1), Florida Statutes. In assessing a minority business enterprise application for certification, the Respondents, through that statutory provision:

   
   

   [R]equire that prospective certified minority business enterprises be currently performing a useful business function. A 'useful business function' is defined as a business function which results in the provision of materials, supplies, equipment, or services to customers other than state or local government. Acting

   as a conduit to transfer funds to a non-minority business does not constitute a useful business function unless it is done so in a normal industry practice.

   
   

6. Petitioners, Expertech and Mechanical, had been certified to participate in the Respondents' Minority Business Program, but were denied re- certification through the application of Rules 60A-2.001(10) and 60A-2.005(7), Florida Administrative Code.

   
   

7. Marsha Nims is the Director of Certification for the Commission on Minority Economic and Business Development, Minority Business Advocacy and Assistance Office. In her position, she develops policy on minority business enterprise certification. As such, she was principally responsible for developing the subject rules.

   
   

8. In particular, as Ms. Nims describes, the purpose in developing the rules was to address the meaning of a "conduit" set forth at Section 287.0943(1), Florida Statutes, in an attempt to insure that improper advantage was not taken by persons using certified minority businesses to enter into contractual opportunities with the State of Florida.

   
   

9. In promulgating the rule, the Respondents spoke to representatives who were involved with unrelated minority business enterprise certification programs. One person from whom the Respondents had obtained ideas was Hershel Jackson, who processed certifications for the Small Business Administration in its Jacksonville, Florida office. This individual indicated that the Small Business Administration had developed a "regular dealer rule" that required individuals who sought minority certification from the Small Business Administration to make sales from existing inventory.

   
   

10. This conversation led to the utilization of federal law as a guide to establishing the rules in question.

11. At 41 CFR 50-201.101(a)(2), the term "regular dealer" is defined as:

    
    

    A regular dealer is a person who owns, operates, or maintains a store, warehouse, or other estab-

    lishment in which the materials, supplies, articles, or equipment of the general character described

    by the specifications and required under the contract are bought, kept in stock, and sold to the public in the usual course of business.

    
    

12. It can be seen that the definition of "regular dealer" set forth in Rule 60A-2.001(10), Florida Administrative Code, is very similar to the federal definition.

    
    

13. In addition, the Respondents used the Walsh Healey Public Contracts Act Interpretations at 41 CFR 50-206 for guidance. The provision within the Walsh Healey Public Contracts Act that was utilized was 41 CFR 50-206.53(a). It states:

    
    

    Regular Dealer.

    1. A bidder may qualify as a regular dealer under 40 CFR, 50-201.101(b), if it owns, operates, or maintains a store, warehouse, or other estab- lishment in which the commodities or goods of

       the general character described by the specifi- cations and required under the contract are bought, kept in stock, and sold to the public in the usual course of business. . . .

       
       

14. The Petitioners presented witnesses who established the manner in which their respective industries carried out normal industry practices involving fund transfers to non-minority businesses from minority and non- minority businesses.

    
    

15. Joseph H. Anderson is the President of Suntec Paint, Inc. (Suntec), which does business in Florida. Suntec is a non-minority corporation. It manufactures architectural coatings (house paints).

    
    

16. Suntec sells and distributes its paint products through its own stores, through other dealers who have stores, and through sales agents. The sales agents would also be considered as manufacturers' representatives.

    
    

17. Suntec's relationship with its manufacturer's representatives is one in which Suntec has an agreement with the representatives to sell the paint products to the representatives at negotiated prices which may be discounted based upon volume of sales. The representatives then sell the products to end users at a price that may be higher than the price between Suntec and the representatives. The representatives are responsible for marketing the product to customers.

    
    

18. The products manufactured by Suntec are inventoried for distribution, or in some instances, made to order for distribution. The maintenance of inventory is principally for the benefit of the retail outlets controlled by Suntec. Suntec prefers not to maintain inventory because it ties up raw materials, warehousing space, and requires personnel to be engaged in the management and shipment of those products. If the product is "picked up" more

    than once in the process, it costs more money. Therefore, Suntec distributes inventory through the representatives by direct shipping from the manufacturer to the end user.

    
    

19. Suntec's arrangement with its representatives is one in which the customer pays the representative for the product and the representative then pays Suntec.

    
    

20. The representatives for Suntec do not ordinarily maintain inventory of the paint products, because this avoids having the representatives handle the product and then reship the product to the end user. By the representative handling the product, it would add expense to the transaction.

    
    

21. Suntec, in selling its products through representatives and shipping directly from the manufacturer to the end user, is pursuing a practice which is normal in its industry.

    
    

22. Suntec's arrangement with dealers unaffiliated with Suntec who have stores, provides the independent dealers with inventory. Nonetheless, there are occasions in which the independent dealer will place a large order with Suntec; and Suntec will ship the product directly to the end user. That practice is a frequent practice and one that is standard in the industry.

    
    

23. Suntec has two minority businesses who serve as manufacturers' representatives and other manufacturers' representatives who are non-minorities. The minority representatives are Expertech, located in Gainesville, Florida, and All In One Paint and Supply, Inc. (All In One), also located in Gainesville.

    The two minority representatives for Suntec maintain some stock of paint. The inventory amount which All In One maintains was not identified. Within a few months before the hearing, Expertech had purchased 60 gallons of paint from Suntec. It was not clear what the intended disposition was for the paint.

    
    

24. Thomas Rollie Steele, the Branch Manager for Bearings and Drives, serves as Sales Manager for that company in its Florida operations. Bearings and Drives has its corporate offices in Macon, Georgia. The company has thirty locations throughout the southern United States, with five different divisions. It specializes in industrial maintenance products and some services. Bearings and Drives is a non-minority firm.

    
    

25. In its business Bearings and Drives has manufacturing arrangements or agreements to represent other manufacturers. As representative for other companies who manufacture the products which Bearings and Drives markets, Bearings and Drives is expected to solicit sales. The agreements with the manufacturers which Bearings and Drives has, establish price structures, terms and conditions, and shipping arrangements. Bearings and Drives serves as representatives for the manufacturers in a distinct service area. Bearings and Drives buys products from the manufacturers and resells the products to Bearings and Drives' customers. Bearings and Drives derives compensation by selling to customers at a price higher than the product was sold to them. The price at which products are resold by Bearings and Drives is controlled by market conditions.

    
    

26. Bearings and Drives maintains some product inventory; however, in excess of 50 percent of the products sold are shipped directly from the manufacturer to the customer. The direct shipment improves the profit margin for Bearings and Drives by not maintaining an inventory and saving on additional

    freight expenses, taxes paid on existing inventory and labor costs to be paid warehouse personnel.

    
    

27. Bearings and Drives uses a direct delivery system to its customers that is scheduled around the time at which the customer would need the product sold by Bearings and Drives. This arrangement is a standard industry practice.

    
    

28. Aileen Schumacher is the founder, President, and sole owner of Expertech. This Petitioner had been certified through the Minority Business Program prior to the rule amendments in December, 1991. When the Petitioner, Expertech sought to be re-certified, it was denied certification in some business areas for failure to maintain sufficient levels of inventory.

    
    

29. Expertech sells and distributes technical supplies, such as pollution- control equipment, laboratory equipment, hand tools, and other technical supplies. It specializes in the sale and distribution of safety equipment. Expertech does not provide services.

    
    

30. The areas in which Expertech has been denied re-certification relate to the sale of laboratory supplies, paint, and pollution-control equipment.

    
    

31. In marketing products Expertech buys directly from manufacturers, except in the instance where they cannot access the manufacturer directly and must operate through a distributor.

    
    

32. Expertech tries to maintain as little inventory as possible and to have the commodities it sells shipped directly from the manufacturer to the end user. In addition to ordinary sales, Expertech takes custom orders for products not maintained in inventory by the manufacturer, which are directly shipped from the manufacturer to the customer. In Expertech's business dealings as a manufacturer's representative, wherein it arranges for direct shipments, it is performing in a manner which is standard in the industries in which it is engaged.

    
    

33. Otto Lawrenz is the sole proprietor of Mechanical. Prior to the rules changes in December, 1991, Mechanical had been certified as a minority business enterprise. The attempt to re-certify was denied based upon the fact that Mechanical did not stock products and was serving as a manufacturer's representative in selling heating and ventilation equipment.

    
    

34. Mechanical sells to mechanical contractors and sheet-metal contractors as a representative for the manufacturer. Mechanical bids on construction jobs and "takes off" the amount of equipment needed in setting its price quotes. If the submission of the price quotation is successful, Mechanical receives a purchasing order from the contractor, as approved by the project engineer. The equipment is then ordered by Mechanical, and delivered by the manufacturer to the job site or the contractor's home office. Mechanical does not maintain a warehouse or a store.

    
    

35. The end user pays Mechanical within 30-60 days from the time that the equipment is delivered to the end user. Mechanical then pays the original manufacturer an agreed upon price.

    
    

36. Generally, Mechanical sells special-order equipment. This type of equipment would be difficult to inventory since it is being custom-ordered and the units that are ordered are large in size. In addition, the variety of parts involved in these projects makes it difficult to stock them.

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Sections 120.56 and 120.57, Florida Statutes.

    
    

38. Expertech and Mechanical have standing to challenge the validity of Rules 60A-2.001(10) and 60A-2.005(7), Florida Administrative Code.

    
    

39. Petitioners allege that Rules 60A-2.001(10) and 60A-2.005(7), Florida Administrative Code, in part, are invalid exercises of delegated legislative authority. The Petitioners bear the burden of proving their claims by a preponderance of the evidence. See, Agrico Chemical, Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979).

    
    

40. In particular, the Petitioners allege that the subject rules constitute an invalid exercise of delegated legislative authority, in that the rules enlarge, modify or contravene Section 287.0943(1)(e)3, Florida Statutes (1994 Supp.), formerly Section 287.0943(1), Florida Statutes, concerning the definition of "useful business function", set forth in the statute and carried forth in the rules. See, Section 120.52(8)(c), Florida Statutes.

    
    

41. Again, Section 287.0943(1)(e)3, Florida Statutes (1994 Supp.), states:

    
    

    . . . a useful business function is defined as a business function which results in the provision of materials, supplies, equipment, or services to customers other than state or local government . . .[Emphasis added]

    
    

42. This definition makes no reference to the necessity to maintain a store, warehouse, or other establishment in order to perform a "useful business function", requirements that modify and contravene the statute. It only requires that the prospective certified minority business enterprise be performing a business function in some manner which results in the provision of the materials, supplies, equipment, or services. Moreover, to qualify for certification as a would-be certified minority business enterprise, the applicant is considered on the basis of those business functions provided to private customers or governmental customers other than state and local government customers.

    
    

43. A prospective certified minority business enterprise need not directly provide materials, supplies, equipment, or services to customers other than state or local governments. It need only perform a business function which "results" in the provision of materials, supplies, equipment, or services to customers other than state or local governments.

    
    

44. When considering a minority business enterprise's request for certification, the Respondents must "require that prospective certified minority business enterprises be currently performing a useful business function. "

    Section 287.0943(1)(e)3, Florida Statutes (1994 Supp.).

    
    

45. Finally, in considering the application to decide whether the minority business enterprise may be certified, the Respondents examine the business function and exclude from recognition any minority business enterprise that is "acting as a conduit to transfer funds to a non-minority business unless

    it is . . . a normal industry practice." Section 287.0943(1)(e)3, Florida Statutes (1994 Supp.).

    
    

46. Therefore, the statute recognizes that there are instances where funds are transferred from the prospective certified minority business to a non- minority business in normal industry practices. In these cases, the prospective certified minority business enterprise would be considered to be performing a "useful business function".

    
    

47. Any rule which precludes the possibility that the prospective certified minority business enterprise, in pursuing normal industry practice, could act as a conduit to transfer funds to a non-minority business would modify and contravene the statute.

    
    

48. The language in Rule 60A-2.001(10), Florida Administrative Code, which is subject to challenge, is as follows:

    
    

    1. "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. . . .

       
       

49. Unlike the federal experience upon which the Respondent relied, Section 287.0943(1)(e)3, Florida Statutes (1994 Supp.), does not require that a prospective certified minority business enterprise be acting as a "regular dealer" before it may be certified. But Rule 60A-2.001(10), Florida Administrative Code, in pertinent part, imposes the "regular dealer" requirement before the prospective certified minority business enterprise may gain certification. The rule modifies and contravenes Section 287.0943(1)(e)3, Florida Statutes (1994 Supp.). The rule is an invalid exercise of delegated legislative authority.

    
    

50. For ease of reference, Rule 60A-2.005(7), Florida Administrative Code, states in pertinent part:

    
    

    1. The applicant business shall establish that it is currently performing a useful business function in each specialty area requested by the

       applicant. For purposes of this rule, "currently" means as of the date of the office's receipt of the application for certification. The applicant business is considered to be performing a useful business function when it is responsible for the execution of a distinct element of the work of a contract and carrying out its responsibilities in actually performing, managing, and supervising

       the work involved. The useful business function of an applicant business shall be determined in reference to the products or services for which the applicant business requested certification on Form PUR 7500. When the applicant business is required by law to hold a license, other than an

       occupational license in order to undertake its business activity, the applicant business shall not be considered to be performing a useful business function unless it has the required license(s).

       1. In determining if an applicant business is acting as a regular dealer and that it is not acting as a conduit to transfer funds to a

    non-minority business, the Office shall consider the applicant's business role as agent or negotiator between buyer and seller or contractor. Though an applicant business may sell products through a variety of means, the Office shall consider the customary and usual method by which the majority of sales are made in its analysis

    of the applicability of the regular dealer requirements. Sales shall be made regularly from stock on a recurring basis constituting the usual operations of the applicant business. The proportions of sales from stock and the amount

    of stock to be maintained by the applicant business in order to satisfy these rule requirements will depend on the business' gross receipts, the types

    of commodities sold, and the nature of the business's operations. The stock maintained shall be a true inventory from which sales are made, rather than

    by a stock of sample, display, or surplus goods remaining from prior orders or by a stock maintained primarily for the purpose of token compliance with this rule. Consideration shall be given to the applicant's provision of dispensable services or pass-through operations which do not add economic value, except where characterized as common industry practice or customary marketing procedures for a given product. An applicant business acting as

    broker or packager shall not be regarded as a regular dealer absent a showing that brokering or packaging is the normal practice in the applicant business industry. Manufacturer's representatives, sales representatives and non-stocking distributors shall not be considered regular dealers for purposes of these rules.

    
    

51. Rule 60A-2.006(7), Florida Administrative Code, unrelated to Subsection (7)(a), is a valid exercise of delegated legislative authority, with the exception of the language . . .

    
    

    The applicant business is considered to be performing a useful business function when it is responsible for the execution of a distinct element of the work of a contract and carrying out its responsibilities in

    actually performing, managing, and supervising the work involved.

    
    

    That language modifies and contravenes Section 287.0943(1)(e)3, Florida Statutes (1994 Supp.) and is an invalid exercise delegated of legislative authority.

52. Rule 60A-2.006(7)(a), Florida Administrative Code, in Subsection (a), is an invalid exercise of delegated legislative authority in that it modifies and contravenes Section 287.0943(1)(e)3, Florida Statutes (1994 Supp.). It is invalid because it establishes a "regular dealer" requirement, the requirement to maintain inventory, the requirement that the provision of services add economic value and the exclusion of manufacturer's representatives, sales representatives, and non-stocking distributors as prospective certified minority business enterprises.

    
    

53. The record reveals that the Respondents by relying upon the federal experience in adopting this rule, which only certifies "regular dealers", overlooked business functions that are performed by former and prospective certified minority business enterprises through activities as manufacturers representatives and sales representatives, business functions resulting in the provision of materials, supplies, equipment, or services to customers other than state and local governments. The record also establishes that funds transfers exist between the private business end user and minority representative and between the minority enterprise and the non-minority manufacturer as separate acts, in normal industry practice. In those circumstances even if the minority business is considered as serving as a conduit, these arrangements do not preclude certification because they constitute normal industry practice.

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that Rules 60A-2.001(10) and 60A-2.005(7)(a), Florida

Administrative Code are declared to be invalid exercises of delegated legislative authority to the extent described. Otherwise the rules challenge is dismissed.

DONE AND ORDERED this 24th day of October, 1995, 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 of Administrative Hearings this 24th day of October, 1995.

APPENDIX TO FINAL ORDER

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

Petitioners' Findings:

The unnumbered paragraphs prior to the first full paragraph at page 8 are subordinate to facts found. The full paragraph at page 8 continuing to page 9 is not relevant in that it speaks to business functions associated with state government. The first two paragraphs at page 9 are not necessary to the

resolution of the dispute. The remaining paragraphs at pages 9, 10 and 11 are subordinate to facts found.

Respondents' Findings:

1. Subordinate to facts found.

2. Constitutes a restatement of the Petitioners' argument through its attorney and is not the proper subject for fact finding.

3-5. Subordinate to facts found. 6-8. Constitute legal argument.

COPIES FURNISHED:

William C. Andrews, Esquire SCRUGGS & CARMICHAEL, P.A.

One S.E. First Avenue Gainesville, FL 32601

Joseph Shields, Esquire Commission on Minority Economic

and Business Development Collins Building, Suite 201

107 West Gaines Street Tallahassee, FL 32399

Crandall Jones, Executive Administrator Commission on Minority Economic

and Business Development Knight Building

2727 Centerview Drive

Tallahassee, FL 32399-0950

Marsha Nims, Director of Certification for the Commission on Minority Economic

and Business Development, Minority Business Advocacy and Assistance Office

Knight Building

2727 Centerview Drive

Tallahassee, FL 32399-0950

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, FL 32399-0250

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, FL 32399-1300

William H. Linder, Secretary Department of Management Services 4050 Esplande Way

Tallahassee, FL 32399-0950

Paul A. Rowell, General Counsel Department of Management Services 4050 Esplande Way

Tallahassee, FL 32399-0950

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

COMMISSION ON MINORITY NOT FINAL UNTIL TIME EXPIRES TO ECONOMIC, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant,

CASE NO. 95-4166

vs. DOAH CASE NO. 95-4042RX

EXPERTECH SUPPLIES, INC.

Appellee.

/ Opinion filed June 26, 1996.

An Appeal from from an order of the Division of Administrative Hearings.

Joseph L. Shields and M. Suzanne Chistolini of Commission on Minority Economic and Business Development, for appellant.

William C. Andrews of Scruggs & Carmichael, P.A., for appellee. PER CURIAM.

AFFIRMED.

BARFIELD, C.J., KAHN, J., and SMITH, Senior Judge, CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable CHARLES C. ADAMS, Hearing Officer

Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:

EXPERTECH SUPPLIES, INC., a Florida

Corporation, AL'S ARMY STORE, INC., MECHANICAL AIR PRODUCTS, INC.,

and TAI-PAN TRADING, INC.

vs. Case No. 95-4166

Your Case No. 95-4042RX

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF PURCHASING AND MINORITY BUSINESS ADVOCACY AND ASSISTANCE OFFICE OF THE COMMISSION ON MINORITY AND ECONOMIC DEVELOPMENT

The attached opinion was rendered on June 26, 1996.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable Edward T. Barfield

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 12th day of July, 1996.

Jon S. Wheeler

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 95-004042RX

Orders for Case No: 95-004042RX