SOUTH FLA. CHAPTER, ETC. v. METROPOLITAN DADE CTY., No. 82-2427-Civ-JWK.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtRobert A. Ginsburg and R.A. Cuevas, Jr., Miami, Fla., for defendants
Citation552 F. Supp. 909
PartiesSOUTH FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., et al., Plaintiffs, v. METROPOLITAN DADE COUNTY, FLORIDA, et al., Defendants.
Docket NumberNo. 82-2427-Civ-JWK.
Decision Date16 December 1982

552 F. Supp. 909

SOUTH FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., et al., Plaintiffs,
v.
METROPOLITAN DADE COUNTY, FLORIDA, et al., Defendants.

No. 82-2427-Civ-JWK.

United States District Court, S.D. Florida.

December 16, 1982.


552 F. Supp. 910

David V. Kornreich and Gordan Dean Rogers, Miami, Fla., for plaintiffs.

Robert A. Ginsburg and R.A. Cuevas, Jr., Miami, Fla., for defendants.

Theodore Klein, Miami, Fla., for Thacker Const. Co.

Leon E. Sharpe, Miami, Fla., for Allied Contractors Ass'n and Alfred Loyd & Sons, Inc.

MEMORANDUM OPINION CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW

KEHOE, District Judge.

I.

This is an action alleging, among other things, that plaintiffs are being discriminated

552 F. Supp. 911
against because of their race in violation of the Fourteenth Amendment to the United States Constitution. The central issue for determination is important and fundamental: how far can a local government apply a race conscious affirmative action plan before that plan violates a person's constitutionally guaranteed right to the equal protection of the laws? Put another way, may a local government initiate a race-conscious policy of favoring a disadvantaged minority group at the expense of members of a non-minority group

Plaintiffs are White construction contractors and subcontractors who have been adversely affected by Metropolitan Dade County's recently enacted race-conscious ordinance. This ordinance has two major features: a "set-aside" provision that limits competition for certain designated county contracts exclusively among Black contractors; and a "goals" provision that sets a certain percentage dollar amount of a county contract to be subcontracted to Black contractors.

For reasons fully explained in the body of this opinion, it is the considered judgment of the Court: (a) that the "set-aside" provision of the county's race-conscious ordinance conflicts with the equal protection clause of the Fourteenth Amendment; and (b) that the "goals" provision falls within the ambit of county discretion and is constitutionally permissible. Accordingly, plaintiffs are entitled to a judgment declaring that the set-aside provision of the defendants' race conscious policy is unconstitutional, and a permanent injunction enjoining the defendants from applying the set-aside to the contract that is the subject of this action.

II.

Plaintiffs are non-profit corporations and trade associations challenging certain ordinances, resolutions and policies enacted by Metropolitan Dade County and mandating that minority set asides and goals be established for selected county construction contracts to be bid and awarded. The defendants are the county, its Board of County Commissioners, the county manager and the county transportation coordinator.

Plaintiffs filed their complaint seeking a declaratory judgment and injunctive relief on November 12, 1982. Jurisdiction over this cause was invoked pursuant to 28 U.S.C. ? 1343 as an action seeking relief under 42 U.S.C. ?? 1981 and 1983 (the civil rights acts) and 28 U.S.C. ?? 2201 and 2202 (declaratory judgments). The Court's pendent jurisdiction was invoked over two related state claims.

On November 15, 1982 plaintiffs filed their motion for preliminary injunction, or in the alternative, motion for a temporary restraining order, seeking to enjoin the county from opening the bids submitted on the Earlington Heights Metrorail Station project. Since these bids were scheduled to be opened on November 17, 1982, the Court held a hearing on the motion for a temporary restraining order on November 16, 1982. The defendants were notified of this action and of the scheduled hearing, and appeared in opposition to the motion. At the conclusion of the hearing, after receiving testimony of witnesses and argument of counsel, the Court announced that it would issue a temporary restraining order against the defendants. The following day a temporary restraining order was issued restraining the defendants from opening the bids for the Earlington Heights Metrorail Station project, contract no. N336R, and from taking any other action to finally award this contract to any bidder pending a final determination of the merits of plaintiffs' complaint.1 By this written order and previous announcement, the Court accelerated this cause for final hearing to commence

552 F. Supp. 912
on November 26, 1982 and directed the defendants to file their answer to the complaint by November 23, 1982. Also, by separate order, the Court permitted intervenor Thacker Construction Company to intervene as a party defendant. Just prior to the final hearing, Allied Contractors Association and Alfred Loyd & Sons, Inc. also filed a joint motion to intervene in this action. This motion was granted ore tenus by the Court

This cause came on for final hearing on November 26, 1982 at which extensive evidence was adduced and legal argument heard from all parties.2 At the conclusion of this hearing the Court took all of the issues under consideration pending the release of this memorandum opinion. After considering the entire record developed in this proceeding3 as well as all of the legal memoranda submitted, the Court now makes its findings of fact and publishes its conclusions of law in accordance with Fed. R.Civ.P. 52(a).4

III.

The Court makes the following findings of fact:

A.

1. Plaintiff South Florida Chapter of The Associated General Contractors Of America, Inc. (the "general contractors") is a Florida not-for-profit corporation with its principle offices and place of business in Dade County, Florida, and is organized for the purpose of furthering and representing the interests of general contractors in the construction industry. This plaintiff is a trade association which has a membership comprised of, inter alia, sixty-two general contractors, many of whom regularly bid on and perform construction work for Metropolitan Dade County.

2. Plaintiff Engineering Contractors Association Of South Florida, Inc. (the "engineering contractors") is a not-for-profit corporation having its principle offices and place of business in Dade County, Florida. This Plaintiff is a trade association comprised of eighty-two member firms which include, inter alia, general contractors, many of whom regularly bid on and perform construction work for Metropolitan Dade County. Plaintiff's members also include, inter alia, subcontractors, many of whom regularly bid on and perform construction work for Metropolitan Dade County.

3. Plaintiff Air Conditioning, Refrigeration, Heating And Piping Association, Inc., a/k/a Mechanical Contractors Association Of South Florida (the "mechanical contractors") is a Florida not-for-profit corporation, having its principle office in Dade County, Florida and is organized to further and represent the common interests of mechanical contractors in the construction industry. The membership of this plaintiff is comprised of more than eighty mechanical contractors and subcontractors, many of whom regularly bid on and perform construction work for Metropolitan Dade County.

4. Defendant Metropolitan Dade County, Florida, ("Dade County" or "county"), is a chartered political subdivision of the State of Florida operating under Article VIII, Section 6 of the Florida Constitution of 1968, the Dade County Home Rule Charter and the laws of the State of Florida. At all times material herein, Dade County, through its Office of Transportation Administration,

552 F. Supp. 913
was engaged in the construction of a mass transit system generally known as the Metrorail System, including the Earlington Heights Station, contract N336R. As the owner of the Metrorail System, the county was responsible for establishing bid procedures and specifications on all Metrorail projects, including the Earlington Heights Station

5. Defendants Barbara M. Carey, Clara Oesterle, Beverly B. Phillips, James F. Redford, Jr., Harvey Ruvin, Barry D. Schreiber, Ruth Shack, Jorge E. Valdes and Stephen P. Clark comprise the membership of the Board of County Commissioners of Dade County (the "county commission" or "commission"). At all times material herein, defendants Carey, Oesterle, Phillips, Redford, Ruvin, Schreiber, Shack, Valdes and Clark voted on and passed all ordinances, resolutions, and policies mandating the establishment of Black prime contractor set-asides and Black subcontractor goals on all Dade County construction projects, including Metrorail construction projects. The county commission specifically established and implemented Resolution No. R1350-82, requiring that the Earlington Heights Metrorail Station project, contract no. N336R, be set-aside for a Black prime contractor only and that fifty percent or more of the value of the prime contract on such project be set-aside for Black subcontractors.

6. Defendant Merrett Stierheim is the county manager of Dade County (the "county manager" or "manager"). At all times material herein, Mr. Stierheim was the Chief Administrative and Executive Officer of Dade County and was responsible for the implementation and administration of all ordinances, resolutions, and policies established by the commissioners, including those relating to the establishment and implementation of Black set-asides and goals on Metrorail System construction projects and other Dade County construction projects.

7. Defendant Warren J. Higgins is the Transportation Coordinator of Dade County's Office of Transportation Administration. At all times material herein, Mr. Higgins (the "transportation coordinator"), acting under the supervision and the direction of the county manager, was the Metropolitan Dade County official primarily responsible for the bid procedures and specifications on the Metrorail System, including the Earlington Heights Station Project, contract no. N336R.

8. Intervenor Thacker Construction Co. ("Thacker") is an Illinois Corporation with its...

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6 practice notes
  • J.A. Croson Co. v. City of Richmond, Nos. 85-1002
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 25, 1985
    ...relied upon here. In South Forida Chapter of the Associated General Contractors of America v. Metropolitan Dade County, Florida, 552 F.Supp. 909, 925-26 (S.D.Fla. 1982), aff'd 723 F.2d 846 (11th Cir.), cert denied, --- U.S. ----, 105 S.Ct. 220 (1984), the municipality's conclusion of past d......
  • Southwest Washington Chapter, Nat. Elec. Contractors Ass'n v. Pierce County, No. 48975-1
    • United States
    • United States State Supreme Court of Washington
    • July 28, 1983
    ...1235, 1244 (1981) (hereinafter Va. Note); but see South Fla. Chapter of the Associated Gen. Contractors v. Metropolitan Dade Cy., 552 F.Supp. 909, 934 (S.D.Fla.1982) (construing Justice Powell's opinion to place limits solely on nonlegislative bodies). The reasoning of Chief Justice Burger,......
  • Engineering Contractors Ass'n v. Metro. Dade County, No. 94-1848-CIV-RYSKAMP.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 17, 1996
    ...contractors. See, South Florida Chapter of Associated General Contractors of America, Inc., et al, v. Metropolitan Dade County, 552 F.Supp. 909 (S.D.Fla.1982). Under a strict scrutiny standard of review, the District Court found the "set-aside" portion of the program unconstitutional, but u......
  • Capeletti Bros. v. Metropolitan Dade County, No. 90-0678-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • April 13, 1990
    ...judgment rendered in South Florida Chapter of Associated General Contractors of America, Inc. v. Metropolitan Dade County, Florida, 552 F.Supp. 909 (S.D.Fla.1982); aff'd in part, rev'd in part, 723 F.2d 846 (11th Cir.1984), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984) ba......
  • Request a trial to view additional results
6 cases
  • J.A. Croson Co. v. City of Richmond, Nos. 85-1002
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 25, 1985
    ...relied upon here. In South Forida Chapter of the Associated General Contractors of America v. Metropolitan Dade County, Florida, 552 F.Supp. 909, 925-26 (S.D.Fla. 1982), aff'd 723 F.2d 846 (11th Cir.), cert denied, --- U.S. ----, 105 S.Ct. 220 (1984), the municipality's conclusion of past d......
  • Southwest Washington Chapter, Nat. Elec. Contractors Ass'n v. Pierce County, No. 48975-1
    • United States
    • United States State Supreme Court of Washington
    • July 28, 1983
    ...1235, 1244 (1981) (hereinafter Va. Note); but see South Fla. Chapter of the Associated Gen. Contractors v. Metropolitan Dade Cy., 552 F.Supp. 909, 934 (S.D.Fla.1982) (construing Justice Powell's opinion to place limits solely on nonlegislative bodies). The reasoning of Chief Justice Burger,......
  • Engineering Contractors Ass'n v. Metro. Dade County, No. 94-1848-CIV-RYSKAMP.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 17, 1996
    ...contractors. See, South Florida Chapter of Associated General Contractors of America, Inc., et al, v. Metropolitan Dade County, 552 F.Supp. 909 (S.D.Fla.1982). Under a strict scrutiny standard of review, the District Court found the "set-aside" portion of the program unconstitutional, but u......
  • Capeletti Bros. v. Metropolitan Dade County, No. 90-0678-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • April 13, 1990
    ...judgment rendered in South Florida Chapter of Associated General Contractors of America, Inc. v. Metropolitan Dade County, Florida, 552 F.Supp. 909 (S.D.Fla.1982); aff'd in part, rev'd in part, 723 F.2d 846 (11th Cir.1984), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984) ba......
  • Request a trial to view additional results

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