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E.G. Fisher Construction, Inc. v. Rhode Island Department of Administration

Superior Court of Rhode Island, Providence

April 3, 2018

E.G. FISHER CONSTRUCTION, INC. and EDWARD G. FISHER
v.
RHODE ISLAND DEPARTMENT OF ADMINISTRATION, MICHAEL DIBIASE, IN HIS CAPACITY AS THE DIRECTOR OF RHODE ISLAND DEPARTMENT OF ADMINISTRATION and OFFICE OF DIVERSITY, EQUITY AND OPPORTUNITY MINORITY BUSINESS ENTERPRISE COMPLIANCE OFFICE

          For Plaintiff: Richard W. Nicholson, Esq.; Michael J. Riley, Esq.

          For Defendant: Mary-Rose Watson, Esq.

          DECISION

          CARNES, J.

         Before this Court is the appeal of E.G. Fisher Construction, Inc. and Edward G. Fisher[1] from a final decision of the Office of Diversity, Equity and Opportunity Minority Business Enterprise Compliance Officer's Certification Review Committee (CRC), denying Appellant's certification as a Minority Business Enterprise. The CRC denied certification based on findings that Appellant's application contained sworn statements that were inconsistent with supporting documentation, and that Appellant failed to adequately demonstrate that it was properly equipped to perform the scope of work for which it sought certification. Jurisdiction is pursuant to G.L. 1956 §§ 42-35-15, et seq.

         I

         Facts and Travel

         Mr. Fisher-a fifty-seven year old African-American male-is the sole owner of E.G. Fisher Construction, Inc., a construction company established by Mr. Fisher in 2012. On July 20, 2016, Appellant submitted an application to the Minority Business Enterprise Compliance Office (MBECO) for certification as a Minority Business Enterprise (MBE certification or certification).[2] (Admin. R. at Ex. 1.) The Appellant sought a MBE certification as a minority-owned business, offering construction services, which include "demolition vertical and horizontal, sitework, concrete work, trucking acquisition for hazardous and non-hazardous construction materials." The application required that Appellant provide written responses to questions presented on the application form as well as submit the documents listed on the "Supporting Documentation Checklist."

         After Appellant filed the application, Dorinda Keene (Ms. Keene), an Assistant Administrator from MBECO, contacted Appellant to request supplemental information and documentation, via email correspondence dated August 1, 2016 and October 2, 2016. Id. at Ex. 15, 29. The Appellant responded to Ms. Keene's requests on August 30, 2016, and October 12, 2016, respectively. Id. at Ex. 16, 30.

         Thereafter, on November 22, 2016, MBECO issued a decision denying Appellant's application for MBE certification. The denial letter indicated that MBECO denied Appellant's application because of apparent inconsistencies between Appellant's responses to questions in the application, and several documents Appellant provided regarding its relationship with Fisher Construction Corporation (FCC).[3] The denial letter also found that Appellant was not adequately equipped to perform the scope of work specified on the application.

         The Appellant subsequently appealed MBECO's decision to the CRC.[4] On April 18, 2017, the CRC conducted a hearing in this matter. The CRC board members, Ms. Keene, and Appellant, represented by counsel, all attended the hearing. On May 5, 2017, after reviewing Appellant's application and considering the testimony provided at the hearing, the CRC issued its decision (CRC decision) affirming MBECO's findings, and upholding the denial of Appellant's application for MBE certification. Thereafter, Appellant timely appealed the CRC's decision to this Court.[5]

         II

         Standard of Review

         This Court's review of the CRC's decision is governed by § 42-35-15 of the Administrative Procedures Act. See Town of Burrillville v. R.I. State Labor Relations Bd., 921 A.2d 113, 118 (R.I. 2007). Section 42-35-15 provides:

"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error or law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of ...

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