J.B. Coxwell Contracting, Inc. v. State, Department of Transportation

Citations: 580 So. 2d 621; 1991 Fla. App. LEXIS 1234; 1991 WL 17928Docket: No. 89-3364

Court: District Court of Appeal of Florida; February 13, 1991; Florida; State Appellate Court

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J.B. Coxwell Contracting, Inc. appeals the Department of Transportation's denial of its application for renewal of certification as a Disadvantaged Business Enterprise (DBE). The court affirms the Department's decision. J.B. Coxwell, an American Indian and member of the Machis Lower Creek Indian Tribe of Alabama, has held DBE certification for several years based on his heritage. The DBE program, mandated under Florida and federal law, aims to assist small businesses owned by socially and economically disadvantaged individuals, allowing certified businesses to gain competitive advantages in obtaining work.

In June 1988, the Department proposed an amendment to the definition of "Native American" in Rule 14-78.002 to include only those members of American Indian tribes recognized by the U.S. Bureau of Indian Affairs. Coxwell challenged this amendment, but a hearing officer upheld it. While his appeal was pending, the Department further amended the rule to specify members of tribes acknowledged by the Secretary of the Interior. Consequently, the court dismissed Coxwell's appeal as moot. Shortly thereafter, the Department denied his recertification application, citing that his tribe is not acknowledged by the Department of Interior.

Coxwell requested an informal hearing, where the sole issue was whether his application should be denied based on tribal recognition. The Department concluded that the validity of the amended rule was not properly before it and that Coxwell did not meet the eligibility requirements for DBE certification. The ruling underscores that parties can seek judicial review of agency final orders without first exhausting administrative rule challenge remedies.

The appellant contends that the differences between the properly noticed rule and the enacted rule were substantive, effectively creating a new rule. Consequently, the appellant argues that the Department should have followed rule adoption procedures before enacting the rule. According to Section 120.54(13)(b), Florida Statutes (1989), an agency may make changes to a rule after notice and prior to adoption if these changes are supported by public hearing records, do not affect the rule's substance, or respond to written materials received within 21 days after the notice. The appellant acknowledged in a prior response that the language change between the proposed and enacted amendments stemmed from testimony at the public hearing, indicating that the changes were permissible and did not necessitate further adoption procedures.

In a second argument, the appellant claims that the enacted rule amendment violates procedural due process by limiting the opportunity to address ethnic identity. However, the appellant has viable avenues for review under Chapter 120, including challenging the Department’s definition of "Native American" through a Section 120.56 rule challenge and seeking an administrative hearing under Section 120.57 regarding DBE certification decisions. The appellant can pursue judicial review of these decisions under Section 120.68, as is being done in the current appeal. The court finds that the appellant has not shown that the amendment to Rule 14-78.002 was improperly enacted or violated due process, leading to the affirmation of the Department's final order. Judges SMITH and ALLEN concur.