CopyCited 1 times | Published | District Court, N.D. Florida | 2004 U.S. Dist. LEXIS 1695, 2004 WL 288609
...denied. I. BACKGROUND The Plaintiffs', Florida A.G.C. Council, Inc., and the South Florida Chapter of the Associated General Contractors, have brought this cause of action challenging the constitutionality of certain provisions of Florida Statutes, § 287.09451 et seq....
...isted "evidence of a systemic pattern of past and continuing racial discrimination against minority business enterprises and a disparity in the availability and use of minority business enterprises in the state procurement system." Florida Statutes, § 287.09451(1)....
...construction contracts." Id. To this end, the Office of Supplier Diversity was established within the Department of Management Services to assist minority enterprises become "suppliers of commodities, services, and construction to state government." § 287.09451(2). The Office of Supplier Diversity (OSD) has a myriad of responsibilities, including, inter alia, adopting rules meant to assess whether state agencies have made "good faith efforts" to solicit business from minority business enterprises. § 287.09451(4)(a)....
...The OSD is also empowered to monitor whether contractors doing business with the State have similarly made good faith efforts to comply with the Legislature's objective of greater overall minority participation in the purchasing of commodities, services, and construction contracts. See § 287.09451(4)(b). The statute subsequently enumerates targeted measures which contractors should undertake, such as minority-centered recruitment and advertising, as a means of advancing the statute's purposes. See § 287.09451(b)(1)-(8). The Plaintiffs argue that provisions of § 287.09451 impermissibly violate the Equal Protection Clause of the United States Constitution by permitting states agencies to allow the use of race, ethnicity and gender to dictate who receives construction *1312 and other related contracts. For example, § 287.09451(4)(n)(1) provides that, Each [state] agency is encouraged to spend 21 percent of the moneys actually expended for Construction contracts, 25 percent of the moneys actually expended for architectural and engineering contracts, 24 percent...
...for the purpose of entering into contracts with certified minority business enterprises as defined in §
288.703(2), or approved joint ventures. The statute proceeds to list "overall spending goals" for various industry's falling under the authority of §
287.09451. Specifically, state agencies are to allocate 4 percent for black Americans, [4] percent for Hispanic-Americans, [5] and 11 percent for American women [6] of moneys actually expended for construction contracts. §
287.09451(4)(n)(1)(a). For architectural and engineering contracts, state agencies are to allocate 9 percent for Hispanic-Americans, 1 percent for Asian-Americans, [7] and 15 percent for American women. §
287.09451(4)(n)(1)(b). For commodities, the goal is 2 percent for black Americans, 4 percent Hispanic-Americans, 0.5 percent for Asian-Americans, 0.5 percent for Native Americans, [8] and 17 percent for American women. §
287.09451(4)(n)(1)(c)....
...Finally, as it pertains to contractual services, the goals are 6 percent for black Americans, 7 percent for Hispanic-Americans, 1 percent for Asian-Americans, 0.5 percent for Native Americans, and 36 percent for American women of moneys actually expended for contractual services during the previous fiscal year. § 287.09451(4)(n)(1)(d)....
...s chosen to implement the classifications' purposes must be narrowly tailored to achieve the goal). On this basis, the Plaintiffs have moved for summary judgment. The Defendants counter that the Plaintiffs are unable to overcome the presumption that § 287.09451 is constitutionally valid. Additionally, the Defendants assert that the Plaintiffs lack standing to seek prospective relief because the Plaintiffs have failed to demonstrate, notwithstanding *1313 the explicit terms of § 287.09451 et seq., that race, ethnicity or gender have determined who will be the beneficiary of governmental contracts....
...at 2302 (citation and internal quotations omitted). *1314 The Plaintiff's, who are challenging what they consider to be a State authorized "set-aside" program, are not required to prove that they would have received a particular contract `but for" the State's "spending goals" articulated in § 287.09451(4)(n)(1)....
...s for members of another group." Northeastern Florida,
508 U.S. at 666,
113 S.Ct. at 2303. This question will be more fully addressed below. However, for the time being, the Court has determined that the Plaintiffs clearly have standing to challenge §
287.09451 et seq....
...advantaged subcontractors." Adarand,
515 U.S. at 211,
115 S.Ct. at 2105. The Plaintiffs have also clearly satisfied this burden, based on the likelihood that they will bid on State construction contracts in the future, and a plain textual reading of §
287.09451(4)(n)(1)(a)(d). B. Constitutionality of §
287.09451 Fifteen years ago, the Supreme Court struck down a city ordinance requiring prime contractors who were awarded contacts by the city of Richmond to subcontract at least 30 percent of the value of the contracts to Minority Business Enterprises....
...because the challenged classification operates against a group that historically *1315 has not been subject to governmental discrimination.") (citation omitted). Given this background, the Court must determine whether the spending goals outlined in § 287.09451 are narrowly tailored to further a compelling governmental interest. 1. Do § 287.09451 Spending Goals Serve a Compelling Governmental Interest? Remedying past or present discrimination is considered to be a compelling governmental interest....
...The Legislature's articulated reasons for its spending goals, i.e., "a systemic pattern of past and continuing racial discrimination against minority business enterprises and a disparity in the availability and use of minority business enterprises in the state procurement system," § 287.09451(1), would, if true, constitute a compelling governmental interest necessitating race-conscious remedies....
...Metropolitan Dade County,
122 F.3d 895, 927 (11th Cir.1997) (citing Ensley Branch,
31 F.3d at 1569 (citations and internal quotation marks omitted)). There is absolutely no evidence in the record to suggest that the Defendants contemplated race-neutral means to accomplish the objectives set forth in §
287.09451 et seq., such as "`simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races [which] would open the public contracting market to all those who ha...
...d at 928 (quoting Croson,
488 U.S. at 509-10,
109 S.Ct. at 730). The Plaintiffs have affixed to its Motion for Partial Summary Judgment, Interim Project Report 2001-042 (Report), issued by Florida Senate, outlining the legislative history underlying §
287.09451 and an analysis of disparity studies related to the State's utilization of minority business enterprises. The Report concluded that *1316 there was little evidence to support the spending goals outlined in §
287.09451....
...ntal unit involved before allowing limited use of racial classifications in order to remedy such discrimination." Wygant,
476 U.S. at 274,
106 S.Ct. at 1847. The Defendants do not seem to disagree with the Reports findings. Instead, they insist that §
287.09451 is permissive....
...cific contracting decisions, they undoubtedly have a `concrete effect' on whether nonminority business enterprises receive contracts[.]"). It is also apparent that the Defendants apply pressure to state agencies to meet the legislative objectives of § 287.09451(1), extending beyond simple outreach efforts....
...Federal Communications Commission,
236 F.3d 13, 16 (D.C.Cir.2001). State agencies are required to coordinate their minority business enterprise procurement activities with the OSD, which includes adopting; a minority business enterprise utilization plan. §
287.09451(6)(a)....
...If the state agency "deviates significantly from its utilization plan in 2 consecutive or 3 out of 5 total fiscal years, the OSD may review any and all solicitation and contract awards of the agency as deemed necessary until such time as the agency meets its utilization plan." § 287.09451(6)(c). Though alleged to be permissive, textually § 287.09451 et seq. is not. Accordingly, I find that § 287.09451 et seq....
...However, I am bound to follow the precedent established by Croson and its progeny. Accordingly, it is hereby ORDERED AND ADJUDGED: 1. Plaintiffs' Motion for Partial Summary Judgment (doe. 29) is GRANED. 2. Defendants' Motion for Summary Judgment (doc. 55) is DENIED. *1317 3. § 287.09451 et seq....
...in any of the Indian tribes of North America prior to 1835, upon presentation of proper documentation thereof as established by rule of the Department of Management Services." [9] This order has given short shrift to the gender-conscious aspects of § 287.09451 et seq....
...nomic sphere at which the affirmative action program is directed.'" Engineering Contractors Association,
122 F.3d at 910 (quoting Ensley Branch,
31 F.3d at 1581). Even under this more lenient standard, the gender-conscious spending goals outlined in §
287.09451(4)(n)(1) cannot withstand intermediate scrutiny.
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