Findings Of Fact A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. We adopt the Administrative Law Judge’s findings of fact. FCHR Order No. 05-093 Page 2 Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. We note that the Administrative Law Judge concluded, “Mr. Dill, on a single occasion, behaved in a prejudiced, rude and verbally abusive manner to Petitioner. Although he was named in the Petition for Relief, no valid address was provided for him. He has had no notice of this proceeding, and therefore, jurisdiction over him by the Division has not been acquired. To rule with regard to his rights at this time would be a denial of due process...the undersigned is not satisfied that, as a mere employee of the other Respondents, Mr. Dill could bear any liability to Petitioner under the facts of this case...” Recommended Order, {| 29. We note that the Commission has concluded that individuals can bear liability under the Fair Housing Act. See, Thorhill v. Admiral Farragut Condominium Association, et al., FCHR Order No. 01-018 (March 15, 2001); see, also, Sections 760.22(8) and 760.34(1), Florida Statutes (2005). Further, we note that in a case involving findings of the utterance of racially repugnant remarks, a Commission panel has stated, “We note the Hearing Officer’s finding that, ‘The racially repugnant comments of the Respondent, in the absence of any acts infringing on the tenants’ free use of the leasehold, are not a violation of Section 760.23, Florida Statutes.’... We hereby clarify that this finding does not mean that racially-repugnant comments can never amount to a violation of the Fair Housing Act.” Fletcher v. Hatfield, 18 F.A.L.R. 1590, at 1591 (FCHR 1995). Nevertheless, given the Administrative Law Judge’s finding that Mr. Dill had no notice of the proceeding, and the finding that “[bly firing Mr. Dill, Oak Pointe and Flournoy took steps to prevent further bad acts or bad words by him against Petitioner and others (Recommended Order, § 28),” and in the absence of a transcript of the proceeding before the Administrative Law Judge, we adopt the Administrative Law Judge’s conclusions of law, with these clarifying comments. Exceptions Neither party filed exceptions to the Administrative Law Judge’s Recommended Order. Dismissal The Petition for Relief and Housing Discrimination Complaint are DISMISSED with prejudice. The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right FCHR Order No. 05-093 Page 3 to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this _9"__ day of September , 2005. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: Commissioner Mario M. Valle, Panel Chairperson; Commissioner Dominique B. Saliba, M.D.; and Commissioner Billy Whitefox Stall Filed this_ 9" day of September 2005, in Tallahassee, Florida. Vit braferd Violet Crawford, Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-7082 Copies furnished to: Karla Maxwell Post Office Box 438 Monticello, FL 32345 Oakpointe Apartments and Flournoy Properties c/o Jack R. Lee Vice President, Flournoy Properties 2673 Mountain Brook Road Canton, GA 30114 Ella Jane P. Davis, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel 1 21S wom ernest FCHR Order No. 05-093 Page 4 THEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this gt day of September , 2005. By: Vite Cumefrsl Clerk of the Commission Florida Commission on Human Relations
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK 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 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue in this case is whether Respondent, Carl D'Agostino, committed the offense alleged in an Administrative Complaint issued by Petitioner, and dated February 13, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact The Department of Education, which the Commissioner was the head of at the times material to this case, is the state agency charged with the responsibility to investigate and prosecute complaints of violations of Section 1012.795, Florida Statutes (2003), against teachers holding Florida Educator's Certificates. §§ 20.15 and 1012.796(1), Fla. Stat. The Education Practices Commission (hereinafter referred to as the "EPC") is charged with the responsibility of imposing discipline for any violation proscribed in Section 1012.795, Florida Statutes. § 1012.795(1), Fla. Stat. Carl D'Agostino holds Florida Educator's Certificate No. 311777, valid through June 30, 2006, covering the area of history. At the times material to this proceeding, Mr. D'Agostino was employed by Miami-Dade County Public Schools (hereinafter referred to as "M-D Public Schools"). Mr. D'Agostino's most recent position with M-D Public Schools was at North Miami Senior High School. Mr. D'Agostino has been employed as a teacher for 32 years and, since 1973, has been employed by M-D Public Schools. Throughout his teaching career, Mr. D'Agostino has received satisfactory performance evaluations. The Commissioner did not present evidence of prior disciplinary action against Mr. D'Agostino. The Commissioner issued an Administrative Complaint against Mr. D'Agostino on February 13, 2002, alleging three incidents, which Mr. D'Agostino has admitted occurred. The following describes the first incident, which is hereby found to have occurred: On or about August 8, 1992, the Respondent was detained by a law enforcement officer in Dade County for trespassing on posted private property. Although he was twice ordered to stop by the officer, the Respondent continued walking. The Respondent made threatening gestures with his arms and told the officer to "go fuck himself." Attached to his Election of Rights' form, Mr. D'Agostino wrote the following explanation, which is hereby found to be accurate, concerning the August 8, 1992, incident: Aug [sic] 8, 1992 [sic] Walking home from corner store across RR track abutting my apartment building a man started running toward me and screaming at me. In effort to avoid confrontation I attempted to flee. He tackled me, banged my head against the tracks repeatedly and made arrest. Turns out he was a federal railroad marshall and I unwittingly trespassed by crossing track instead of at street half block away. As the officer wears no uniform, from my view I was being attacked by a wild man. Hundreds of people from adjacent apts. Transverse this route daily to corner store. PTI anger control class 10 wks. Adj w/h. The following describes the second incident, which is hereby found to have occurred: On or about February 23, 1996, the Respondent became enraged because another vehicle was parked in the Respondent's parking space. The respondent tore the windshield wipers off the vehicle and threw one at the owner of the vehicle, striking him in the head. Attached to his Election of Rights' form, Mr. D'Agostino wrote the following explanation, which is hereby found to be accurate, concerning the February 23, 1996, incident: Feb [sic] 23, 1996 [sic] After month's [sic] of contention over neighbor's guests using my parking space leaving me nowhere to park, after months of complaining to condo board, and after months of notes to neighbor and on parked cars, I did tear of [sic] windsheild [sic] wipers and flipped them over my shoulder into bushes. I did not aim at anyone or anything nor was I aware of anyone in the vicinity. The person agreed this was an accident, not an assault, did not press charges. Restitution for damages ADJ/WH The following describes the third incident, which is hereby found to have occurred: On or about August 22, 1998, the Respondent became involved in an argument with a neighbor over the volume of the neighbor's music. After the neighbor refused to turn his music down, the Respondent left and returned to the neighbor's home with a rifle. The Respondent cocked the weapon and stated "I will kick your ass." The Respondent told a law enforcement officer who arrived on the scene that "If he does it again, I'm going to kill him." Attached to his Election of Rights' form, Mr. D'Agostino wrote the following explanation, which is hereby found to have been accurate, concerning the August 22, 1998, incident: August 22, 1998 [sic] I did threaten individual with a high school drill team marching rifle which does not have the capacity to chamber or fire a bullet. The object had the appearance of the ability to inflict harm but technically it was neither a weapon or [sic] rifle. I had to be arrested because instead of closure for 1996 incident they issued bench warrant in error. My condo president wrote a letter to judge applauding my actions and the alleged victim was evicted by the condo board for loud music, drugs, and other violations. Judge refused to hear case I have never owned or fired a gun in my life. While the incidents described may evidence an anger management problem, probably exacerbated by 35 years of alcohol abuse,3 they do not constitute gross immorality or acts of moral turpitude. Mr. D'Agostino's conduct was not "sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community." The evidence failed to prove that any of the incidents were publicized. None the acts committed by Mr. D'Agostino constituted an "act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 28th day of June, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2004.
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration ("the Agency" ), which finds and concludes as follows: The Agency issued the Petitioner ("the Applicant") the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $4,000.00 within 30 days of the entry of this Final Order. A check made payable to the "Agency for Health Care Administration " containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney's fees. This matter is closed. ORDERED in Tallahassee, Florida, on this_/_ day of r{l> , 2013. tary A e Administration Filed November 4, 2013 11:14 AM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copysf.:!:,is Final Or as served on the below- named persons/entities by the method designated on this / y of t/ 2013. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Thomas M. Hoeler, Chief Facilities Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Peter A. Lewis, Esquire Law Office of Peter A. Lewis, P. L. 3023 North Shannon Lakes Drive, Suite 101 Tallahassee, Florida 32309 (U.S. Mail) 2
The Issue The ultimate issue for determination at formal hearing was whether the intended decision by the Florida Department of Transportation to award the bid on State Project No. 79002-3429, for construction of a highway project, SRI- 95/11th Interchange, in Volusia County, Florida, to PCL Civil Constructors, Inc., departs from the essential requirements of law.
Findings Of Fact The Florida Department of Transportation (Respondent) issued an Invitation To Bid (ITB) on State Project No. 79002-3429 (Project), construction of a highway project--SRI-95/11th Interchange in Volusia County, Florida. The project is 100 percent federally funded. On July 28, 1993, the bid letting was held. The apparent lowest bidder was Martin K. Eby Construction Co., Inc. (Petitioner), with a bid of $10,480,685.71, and the apparent second lowest bidder was PCL Civil Constructors, Inc. (Intervenor), with a bid of $10,794,968.22 1/ Included as a requirement of the bid by Respondent was a Disadvantaged Business Enterprise (DBE) goal of 12 percent. On its face, Petitioner's bid met and exceeded the DBE goal with an intended DBE utilization of 12.2 percent. However, one of Petitioner's DBEs, Gearing Engineering (Gearing), was not certified by Respondent as a DBE. Without Gearing, Petitioner fell short of the DBE goal. The bid specifications in the ITB provided in a section entitled "Special Provisions for Disadvantaged Business Enterprises" that only DBEs certified by Respondent at the time that the bid is submitted will be counted toward the DBE goal. At the time Petitioner submitted its bid, Gearing had for the first time filed an application with Respondent to be certified as a DBE. At no time prior to this had Gearing been certified as a DBE by Respondent even though it had received certification as a minority business from local government. By the bid letting, Gearing had not been certified as a DBE by Respondent. On July 29, 1993, representatives of Respondent contacted Petitioner to inform it of the DBE problem and to inquire about its good faith efforts to meet the DBE goal. Petitioner responded the same day by written communication indicating, among other things, that it had contacted Gearing about its DBE status and that Gearing informed Petitioner that Respondent's DBE office had informed Gearing that it was appropriate for Gearing to submit a proposal and that certification was required, not at the time of submitting the proposal, but at the time work began. In the communication, Petitioner offered to substitute two certified DBEs for Gearing if Respondent determined Gearing could not be used. Also, Petitioner included with its response a letter from Gearing outlining the communication it (Gearing) had had with Respondent. Petitioner is no stranger to Respondent's bid process as it has prequalified to contract with Respondent and has been doing business within the State of Florida full-time for approximately five and one-half years. 2/ At no time prior to submitting its bid, did Petitioner contact Respondent's DBE office to determine Gearing's DBE status. Petitioner depended wholly upon the representation made by Gearing. Petitioner's division manager, who approved Petitioner's bid proposal for submission, directed his subordinates to only use DBEs certified by Respondent and appearing in Respondent's DBE Directory (Directory) when Petitioner was attempting to reach a DBE goal set by Respondent in a bid. The subordinates knew that Gearing was not in the Directory but failed to inform the division manager of Geary's non-certificate, deciding instead to depend on the representation made by Gearing. Had the division manager known of Geary's non- certification, he would have chosen another DBE from the list of DBEs on his selection list that were certified. Once a business becomes certified by Respondent as a DBE, it is added to a list of certified DBEs maintained by Respondent. A printed list of Respondent certified DBEs--DBE Directory--is provided to bidders, prior to the submitting of bids, so that bidders will know what businesses are certified and when their current certification expires. If a business appears in the DBE Directory for a bid, even though its certification may be listed as expiring before the bid letting date, the business can be included as a DBE on the bid. This procedure is used by Respondent because a renewal application may have been timely filed by a certified DBE, but Respondent may not have completed its renewal process at the time of printing of the Directory or that Respondent may not have timely furnished a certified DBE with a renewal notice or may not have received notification by return receipt that the DBE had received the renewal notice. Therefore, the DBE is retained on the list during Respondent's review process. 3/ Even if a DBE is found by Respondent to no longer meet the DBE requirements, if that DBE was on the DBE Directory at the time of a bid submission and used by a bidder for a project, the bidder would not be penalized. Furthermore, a business not appearing on the DBE Directory may become certified after the list is printed, but before bid submission deadline, and, therefore, be eligible to submit a proposal to a bidder for the particular project named. The DBE Directory also contemplates this situation by directing bidders on the first page of the Directory to contact Respondent directly if the status of a business, as a certified DBE, is in question, whether the business is listed or not. Moreover, Respondent informs bidders in the front of the Directory, printed in noticeable type, i.e., all capitalizations and boldtype, that only DBEs certified by Respondent will be counted towards meeting Respondent's DBE goals. At no time did Respondent's DBE office inform Gearing that it could submit a proposal on the Project without first receiving certification from Respondent as a DBE. The testimony of Respondent's operations and management consultant in its DBE office, who is the individual with whom Gearing communicated, is credible that anyone inquiring about a business submitting a proposal as a DBE to a bidder must first be certified by Respondent as a DBE in order to submit proposals on Respondent's contracts. Further, Respondent's continuous practice and procedure is to require DBE certification before a business can submit a qualified proposal as a DBE. Moreover, it is readily apparent that there was a miscommunication between the principals (husband and wife) of Gearing, causing a misinterpretation of what Gearing could or could not do before being certified. The subordinate principal (husband) who directly communicated telephonically with the DBE office denied that the DBE office informed him that Gearing could submit a proposal as a DBE before it was certified; whereas, the majority principal (wife) believed that he (husband) had informed her that Gearing could submit a proposal as a DBE during the pendency of its DBE application and she so informed Petitioner. On August 4, 1993, Respondent's Good Faith Efforts Review Committee reviewed the bids, including Petitioner's documents submitted on July 29, 1993. Its recommendation was (a) to declare Petitioner's bid nonresponsive due to Petitioner not meeting the DBE goal and not being able to document a good faith effort in attempting to meet the goal and (b) to award the bid to Intervenor. When the DBE goal is not met, the bid specifications in the section entitled "Special Provisions for Disadvantaged Business Enterprises" provide that awarding the contract is conditioned upon the bidder demonstrating that good faith efforts were made to meet the goal, with the documentation being submitted with the bid. Furthermore, the said section enumerates what information will be considered in evaluating good faith efforts and provides that failure to show good faith efforts will result in disqualification of the bidder. The bid documents contain a DBE Utilization Summary form which displays a notice providing that, if the DBE goal is not met, documentation must be included with the bid to demonstrate good faith efforts to meet the DBE goal, and if they are not included, the bid may be considered nonresponsive. Although good faith effort documents are to be submitted with the bids, generally, they are not because a bidder believes the goal has been met, as evidenced by its DBE percentage. Consequently, no bidder has been able to document good faith efforts when a good faith effort question arises after bid submission. Petitioner did not submit good faith effort documents with its bid because it believed that it had met, and even exceeded, Respondent's DBE goal. On August 11, 1993, Respondent's Technical Review Committee reviewed the bids and the accompanying recommendation. It concurred with the recommendation of the Good Faith Efforts Review Committee. On August 17, 1993, Respondent's Contract Award Committee reviewed the bids and the recommendations. It concurred with the recommendation of the Technical Review Committee, i.e., declaring Petitioner's bid nonresponsive for failure to meet the DBE goal and awarding the contract to Intervenor. On September 3, 1993, Respondent posted its notice of intent to award the contract for the Project to Intervenor. Petitioner timely filed a protest to the intended action. Respondent has filed a proposed rule change which would change the way it handles bidders attempting to meet DBE requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter its final order awarding State Project No. 79002-3429, for construction of a highway project, SRI-95/11th Interchange, in Volusia County, Florida, to PCL Civil Constructors, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. ERROL H. POWELL 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 December 1993.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and upon consideration of the proposed final orders, the following relevant facts are found: Petitioner, J. B. Coxwell Construction, Inc., is an Asphalt Construction Company which is certified as a DBE by the Florida Department of Transportation. The basis of Coxwell's DBE certification is the claimed American Indian heritage of John B. Coxwell. An example of the dilemma faced by the Department in administering the DBE certification program, which illustrates the need for substantive criteria defining "Indian" as proposed in the amendment, is the DBE certification issued to Coxwell. Coxwell is certified based on his membership in the Machis Lower Creek Tribe of Alabama. The Department does not dispute that Mr. Coxwell is a member of the Machis Tribe. However, the only document by Coxwell which substantiates or evidences his Indian origin and heritage consists of a family pedigree chart obtained from the chief of the recently formed Machis Tribe. Coxwell has no other document evidencing that he has ever held himself out to be an Indian. As to the pedigree chart, he did not provide any input or information but relied on the chief's filling out the family tree. The space on the pedigree document which directs that he "Give the name of record or book where this information was obtained" is blank and gives no source. The pedigree document is the total documentary basis of Coxwell's membership in the Machis Tribe and the tribal membership card is the basis for the recognition of Coxwell as an Indian by the State of Alabama. Prior to applying for membership as a Machis, Coxwell has never held himself out to be an Indian. Growing up in Alabama, he represented that he was white and his birth certificate registered his parents and him as being white. He never suffered discrimination and knew of no Indian tribes by name when he was growing up and he was never known in the community as an Indian. Coxwell's firm is pre-qualified as a prime contractor under Section 337.14, Florida Statutes, based on his construction experience, personnel, equipment, and financial capability. The firm has grossed over $10,000,000 in the past three years and competes on the Department's prime contracts. Coxwell attributes his company's success to his approximate 30 years in the business, hard work and learned experience, most of which was acquired prior to being certified as a DBE Coxwell grew up in Southeast Alabama during a time when racial discrimination ran rampant against Indians. As a result, Coxwell hid the fact that he was of Indian heritage to avoid being discriminated against. Joe Hill, of Cherokee and Creek Indian heritage, currently operates three certified DBE Indian companies, to wit, J. E. Hill Contractor (concrete construction), Hill Milling (asphalt removing-milling), and Hill Marketing, a paint striping company. The Cherokee and Creek Indian tribes are not recognized by BIA. Approximately 75% of Hill's business is DBE related work and a substantial amount of that work would be eliminated if he is decertified as a DBE pursuant to the proposed rule. Hill, like Coxwell, is currently certified by the Department as a prime contractor and does about $10,000,00 in work annually with the Department. Hill will lose what he considers to be a DBE monopoly on the type of services his companies perform on Department contracts. Hill was in the road construction business long before the DBE program was formulated, as his father formed the business in the early 1930's and he has accumulated substantial expertise. Hill will be able to continue contracting on Department prime and subcontracts if he is decertified as a DBE. Glen Powell, a certified DBE, is a member of the North Bay Clan Indian tribe. Powell obtained his DBE certification in 1982 based on his status as an American Indian. The North Bay Clan Indian Tribe is not recognized by BIA. Powell's experience is that Indians are treated singularly different than any other minority in the U.S. In addition to his DBE business, Powell owns a real estate company, is 50% owner in Seminole Properties, and owns a 38 unit apartment complex. He also is president and 100% owner of First American Contracting. Powell will lose a substantial portion of his business and will lay off employees if he is decertified as a DBE. In fact however, due to the inherent nature of competition, Mr. Powell has recently laid-off one third of his work force. Gulf Asphalt Corporation (Gulf) does prime contracting work for DOT in Florida and is a member of the FTBA. Carol Atkinson, a resident of Panama City, has been employed by Gulf for 20 years. She is in charge of bid preparations and other financial work for Gulf. She is responsible for soliciting bids from DBE subcontractors in order to meet the stated DBE goals on DOT jobs. Atkinson is concerned that Gulf currently relies on six Indian DBE firms which would be affected by the proposed rule change. In fact, the Department's DBE directory indicates there are a multitude of DBE firms in the panhandle area upon which prime contractors such as Gulf can draw upon for satisfying the DBE goals. William Brown Williams, the chairman of the Northwest Florida Creek Council, is an advocate for non-federally recognized Indian people. As an advocate, Williams has encountered problems in administering benefits for Indians and in determining who are bona fide Indians eligible, for benefits. Williams was involved in an unsuccessful petition in 1977 to the BIA for recognition of the Creek Tribe of Indians. Membership in federally recognized tribes, as in non-federally recognized tribes, is a tribal determination. Williams is aware of the problems in administering programs which target Indians as beneficiaries. As an example, in the Federal Title IV Program, any person who declares himself an Indian can secure Title IV money for his school system. Upon Williams learning of the proposed rule in early July 1988, he visited with Juanita Moore, the Bureau Chief of the Office of Minority Programs with FDOT, and provided input in formulating the proposed rule. Teresa Stewart, Director of the Department's Division of Administration, participates in the policy directives of the Bureau of Minority Programs, as well as six other Bureaus. In the transition from her previous job to Director, Stewart was briefed in January 1987 by her predecessor regarding the bureau's problems in determining ethnic identity of Indians. The bureau has not experienced such problems in identifying other minorities' ethnic origins. In response to the Indian certification program, Stewart consulted Joe Queton, Executive Director of the Governor's Council on Indian Affairs, and reviewed the federal recognition process administered by the BIA. Queton is aware of the potential for abuse by use of the current rules' undefined term "American Indian". Queton advises other state agencies regarding their MBE programs and has advised the Department's bureau over a period of several years. Under the current rule, there is no single document that can universally demonstrate Indian heritage. Absent a clear definition of American Indian, those who actually experienced economic discrimination due to their identity as Indians are competing for the DBE program benefits with persons who grew up identified as White, but now claim DBE certification benefits by tracing undefined Indian heritage. The Governor's Council on Indian Affairs recommends policy relating to Indians in Florida. Queton has expressed a desire that, to the extent that Florida recognizes Indian tribes, the State recognize tribes which are (1) indigenous to Florida and (2) recognized by the BIA. Queton is a member of the federally recognized Kiowa tribe of Oklahoma. The council's purpose is to work with and provide assistance to Indians. Without established criteria, the potential for abuse is great for non-Indians to participate in the DBE program. Queton opines that DBE recognition should be based on careful anthropological, genealogical and historical review to appropriately identify such tribes. Currently, Florida does not recognize any tribes officially. The Department's concern in accepting other states' recognition of Indian Tribes is the wide variety of practices of other states, many of which have no substantive criteria. J. Anthony Paredes, Chairman of the Department of Anthropology, Florida State University, is an anthropologist who has extensively authored, published, and, researched Indian matters. Currently serving as president of the Southern Anthropological Society, he is on the editorial board of the American Indian Culture and Research Journal. He has published papers regarding Indian matters in such journals as Current Anthropology, American Anthropologist, Human Organization, The Journal of the Society for Applied Anthropology, numerous chapters in books and has edited a book on contemporary Chipohoi Indians. Paredes has performed extensive field and archival research on the Alabama cultures of the Poarch Creeks and Machis Indian communities. He actively participated in the research which was used in the successful petition for federal recognition made in 1980 to the U.S. BIA by the Alabama Poarch Band of Creeks. In his research of the Poarch Creeks, Paredes took hundreds of hours of oral testimony, made extensive searches of county records, marriage records, World War I selective service records, land records, and other federal records of all kind. He also compiled extensive genealogical interview results. Subsequent to his extensive research in Alabama and his previous ethno- historical work of the Creek nation on behalf of the Poarch Creeks, the EIA hired Dr. Paredes to research the ethno-history and ethnology of the Machis Lower Alabama Creek Indians, and to provide BIA a background report without reaching conclusions. He was commissioned to find all the evidence available that indicated identification of the Machis as an Indian group, and of their existence as a community from their first known historical existence to the present day, and find, if there existed, any form of Machis tribal government or political authority. Dr. Paredes found no evidence of identity of the Machis as Indians from the early 1800's to the present. As to the Machis, there was an identifiable family group of relatives settled in Alabama, who were not linked in any way to the Indians of southeastern Alabama. The first recorded reference to the Machis was found in a 1982 newspaper article. Based on Dr. Paredes' field and archival research, he found nothing to identify any of the named ancestors of the current Machis as Indians. Dr. Paredes found no evidence of descent by the Machis from historic Indian groups. The BIA has established substantive criteria for recognition of Indian tribes. Their recognition provides substantive rational criteria for administering the Department's proposed DBE rule as to Indian applicants. Determination of an individual's membership in BIA-recognized tribes, is made by the tribe. The BIA tribal recognition application process, may take 3 or 4 years in research and investigation. After initial petition, the BIA branch of Acknowledgment may seek additional information or verification in reviewing petitions. BIA utilizes a scientific and thorough review to assure validity of the final determination of claimants to Indian tribe states and Indian ethnicity. The BIA does not close membership rolls of a federally recognized tribe since that matter is controlled by the tribe. In addition to Dr. Paredes' investigation of the Machis as an Indian tribe, the BIA also sent anthropologists to Alabama who conducted their own investigation of the Machis. BIA treats each application seriously and reviews each at face value. The federal recognition process is not an adversary process. Costs of petitioning for BIA recognition are defrayed by the Administration for Native Americans. The BIA review team has a genealogist that specializes exclusively in genealogy. Denial of federal recognition of a tribe may not mean that the applicants are not Indians but where the denial is based on the applicant's failure to meet criterion number one, decendents from Indians, the applicants, as in the case of the Machis, are not Indians. Dan Harbolt is an investigator with the Department's Inspector General's Office. Harbolt and a colleague, Nick Collins, went to Alabama and interviewed the budget director and administrator of the Alabama Indian Affairs Commission, Jane L. Weeks, to ascertain information concerning Alabama's recognition process of Indians. The Alabama Indian Affairs Commission was not involved in reviewing certification of establishing criteria for Indian recognition and has no established criteria for such recognition. Harbolt's meeting with Weeks occurred in response to rumors that certification as a member of an Indian tribe could be purchased in Alabama. Upon learning that, Harbolt and Collins traveled to Alabama on July 21-22, 1988. Prior to that trip, Collins had contacted a Billy Joe Faulkner, who represented himself as chief of the United Cherokee Tribe of Alabama. Collins requested Indian tribal membership explaining that he was a Tallahassee contractor that wanted to become certified as a DBE. Faulkner indicated that Collins should bring him $500 and that he had never certified anyone for less than that amount. Faulkner did not inquire as to Collins' blood line or heredity during that conversation. At Faulkner's residence in Alabama, Collins completed a phony family tree chart and Faulkner accepted Collins' self-affirmation that he (Collins) had Indian blood on his mother's side. Faulkner gave Collins eleven signed tribal membership certificates to fill out, and raised-seal membership documents from the tribe. All the documents were left blank as to the name of the member and were given to Collins to complete the member's name at a later time. Faulkner signed the documents as principal chief. The investigation results were reported to Stewart, upon Harbolt and Collins return to Tallahassee the following week. Juanita Moore, Bureau Chief of the Office of Minority Programs, drafted the proposed rule. In preparing the draft of the proposed rule, Moore consulted with Leigh Ann Reynolds, an employee in the Department's contract compliance office. In preparing the draft, Moore examined the list of potentially affected DBEs and considered the cost to those potentially affected entities. Moore determined that there would be an economic impact on approximately nine million dollars of the department's work involving some approximately 15 affected DBEs. Moore determined, based on a cost analysis and other financial data, that there are, in total, approximately 100 Indian DBEs who are doing business with the Department. Of that amount, there would be approximately 15 who would be directly affected by promulgation of the proposed rule. However, there would be a "washout" of DBEs, that is, another DBE, unaffected by the proposed rule, would step in to be awarded that work to the extent that those affected DBEs were unable to otherwise demonstrate that they are entitled to the DBE certification. The Department is concerned about the genuineness of the applicants who represented themselves to be of Indian descent. Put another way, the Department has found it difficult, if not impossible, to trace the heritage of applicants who claim DBE certification based on their Indian heritage under the Department's existing certification criteria. Petitioner Coxwell presented a family pedigree chart which could note be verified as accurate. Moore has had extensive experience with the Department as an internal auditor, Program Management Review and Evaluation, Deputy Bureau Chief for Contract Administration and her present position of Bureau Chief. She has analyzed bids with respect to the Department's contracting requirements and familiar with contract contents and the administration of the process of qualifying prime and subcontractors. Moore is a member of the DBE Certification Committee. Moore considered the economic impact that would be brought to Petitioner Coxwell and others similarly situated to the extent that they lost their DBE certification pursuant to the proposed rule. She reviewed Petitioner Coxwell's application for qualification as a prime contractor which contains an itemization of all contract names and customers for fiscal year ending September 30, 1987. Of the 57 contracts listed, 9 are listed as Department contracts or subcontracts. Based upon Moore's examination of the impact on free and open competition, and on potentially affected DBE's, Moore concluded that only 15 potentially affected Indian DBE's would no longer be eligible for certification. The remaining DBE's would be benefited by the change. The removal of any current DBE specialty contractor would have no substantial impact on the Department's ability to set DBE contract goals or on open competition to meet DBE goals as there are a minimum of 25 eligible specialty contractors who are DBEs and could perform that type of work In preparation of the draft of the economic impact statement (EIS), Moore reviewed the handwritten draft and concurred in the revision of the EIS to reflect the determination that the proposed rule would have an impact on certain currently certified Indian DBEs. Moore's liaison with the Department's legal section in preparing the rule and the EIS, Leigh Ann Reynolds, jointly reviewed the proposed rule and EIS. The summary of the EIS did not reflect correctly Moore's determination that the proposed rule would ,affect certification of some current DBEs. An error in printing the summary was discovered subsequent to its being published. This in no way negated the determination that the rule impacted some Indian DBEs, which was accurately stated in the actual EIS, the latter having being submitted simultaneously to the Joint Administrative Procedures Committee (JAPC) by Jim Myers, a consultant in the Department's legal section. Three weeks prior to the public hearing held on the proposed rule, Myers sent the proposed rule with its underscored proposed changes, seeking comments, to all currently certified Indian DBEs. The Department considered the comments received at the public hearing held on the proposed rule. Additionally, the Department intends to consider eligible, under Indian status, those persons who can demonstrate eligibility for membership in federally recognized tribes, in addition to actual members.
