98-004089 Acs-Associated Contractual Services, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Thursday, November 19, 1998.

Summary: Disadvantaged Business Enterprise (DBE) ownership changed and DBE was no longer qualified with less than 51% minority ownership.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ACS-ASSOCIATED CONTRACTUAL )

SERVICES, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-4089

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On November 9, 1998, a formal administrative hearing was

held in this case in Tallahassee, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Kelley A. Bennett

Assistant General Counsel

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Transportation should revoke the certification of ACS-Associated

Contractual Services, Inc. (ACS), as a disadvantaged business

enterprise ( DBE) under Chapter 339, Florida Statutes (1997), and

Florida Administrative Code Chapter 14-78.

PRELIMINARY STATEMENT

By letter dated October 31, 1997, the Department g ave notice

of intent to revoke the ACS's DBE certification, and ACS timely

requested an informal hearing. For reasons not clear from the

record, the Department retained jurisdiction until September 14,

1998, when it referred the matter to the Division of

Administrative Hearings (DOAH) for a formal proceeding under

Section 120.57(1), Florida Statutes. The referral misidentified

the issue as being whether ACS's application for DBE

certification should be granted; accordingly, the referral named

ACS as the Petitioner and the Department as the Respondent.

After the Department's Response to Initial Order, the case was

scheduled for final hearing on November 9, 1998.

ACS did not appear at final hearing. The Department called

one witness and had Respondent's Exhibits A, B, and C admitted in

evidence.

FINDINGS OF FACT

1. ACS-Associated Contractual Services, Inc. (ACS), held a

one-year certificate as a disadvantaged business enterprise ( DBE)

under Chapter 339, Florida Statutes (1997), and Florida

Administrative Code Chapter 14-78, effective May 22, 1997,

through May 21, 1998.

2. From the time of ACS's application for DBE

certification, John Scribner had been ACS's President, primary

contact with the Department, and one-third owner. By letter

dated October 10, 1997, Scribner advised the Department that he

had become the majority owner and that his company no longer

qualified for DBE certification.

3. ACS did not apply to renew its DBE certificate prior to

its expiration on May 21, 1998, and has not appl ied for

certification since. Ordinarily, these facts would moot a

revocation proceeding, but the Department's Minority Program

Office Manager testified that the Department has a curious policy

under which it has been maintaining ACS's DBE certification until

the resolution of these proceedings notwithstanding its earlier

expiration.

CONCLUSIONS OF LAW

4. DBE certification is governed by Chapter 339, Florida

Statutes (1997), and Florida Administrative Code Chapter 14-78.

Florida Administrative Code Rule 14-78.005(7)(b) requires that a

DBE be at least 51 percent owned by one or more "disadvantaged

individuals." When a change occurs, and "disadvantaged

individuals" no longer own at least 51 percent of the DBE, the

Department must revoke the DBE's certificate. Section

339.0805(2), Florida Statutes (1997); Florida Administrative Code

Rule 14-78.008(1)(a).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Transportation enter a

final order revoking ACS's certification as a disadvantaged

business enterprise ( DBE) under Chapter 339, Florida Statutes

(1997), and Florida Administrative Code Chapter 14-78.

DONE AND ENTERED this 19th day of November, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fa x Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of November, 1998.

COPIES FURNISHED:

Rafael A. Robles, Esquire

Post Office Box 3235

Spring Hill, Florida 34611-3235

Kelley A. Bennett, Assistant General Counsel

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary

Attention: James C. Myers, Agency Clerk

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.