521 N.E.2d 1133 | Ohio Ct. App. | 1987
This cause came on to be heard upon the appeal from the court of Common Pleas of Clinton County.
This is an appeal by Central Ohio Waterproofing Co. (hereinafter "appellant"), from a decision of the Court of Common Pleas of Clinton County which dismissed for lack of subject matter jurisdiction appellant's appeal from a decision by appellee Warren J. Smith, Director of the Ohio Department of Transportation, to decertify appellant as a women-owned minority business.
In August 1980, appellant was certified by the Ohio Department of Transportation (hereinafter "ODOT") as a business owned and controlled by women. As a result, appellant became eligible to receive ODOT contracts specifically set aside for minority businesses as provided in Section 105(f) of the Surface Transportation Assistance Act of 1982 (P.L. 97-424,
In response to appellee's decision to deny appellant's recertification, and although appellant was entitled to appeal appellee's decision to the United States Department of Transportation (hereinafter "USDOT"), appellant filed an appeal in the Court of Common Pleas of Clinton County. Appellant claims the appeal was filed pursuant to R.C.
On July 9, 1986, the common pleas court dismissed appellant's appeal due to a lack of subject matter jurisdiction. In doing so, it found appellant should have appealed appellee's decision to USDOT pursuant to Section 23.55, Title 49, C.F.R. This appeal followed.
For its sole assignment of error appellant contends:
"The [common pleas] court erred in ruling that appellant's appeal must be taken directly to the United States Department of Transportation and not the Ohio courts under the provisions of the Ohio Administrative Code."
Appellant argues that Part 23, Title 49, C.F.R. delegates to the states the authority to make certification and recertification decisions. Consequently, it argues, the process by which such state decisions are reviewed should follow state law. In furtherance of its position appellant argues that Ohio Adm. Code
In opposition to appellant's claims, appellee directs our attention to Section 23.55, Title 49, C.F.R., which provides an appeal to USDOT in the event a minority business firm believes it has wrongfully been denied minority business certification under Sections 23.51 and 23.53, Title 49, C.F.R.
For the reasons which follow we find the Court of Common Pleas of Clinton County properly dismissed the instant appeal because it had no jurisdiction.
The setting aside of certain federal highway funds (much of which is funneled through the states) for minority business enterprises stems from Section 105(f), P.L. 97-424,
This statute provides:
"Except to the extent that the Secretary [of Transportation] determines otherwise, not less than 10 per centum of the amounts authorized to be appropriated under this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by Section 8(d) of the Small Business Act (
In order to implement Congress' intent as expressed in Section 105(f), the Secretary of Transportation promulgated a set of regulations found in Section 23.1 et seq., Title 49, C.F.R. Among these regulations one finds the eligibility standards used to determine a firm's qualification for minority contractor status (Section 23.53, Title 49, *197 C.F.R.) as well as a section on how to appeal a denial of certification (Section 23.55, Title 49, C.F.R.). The latter section expressly provides that a firm believing it has wrongfully been denied minority business status may appeal such denial to USDOT within one hundred eighty days after the denial of certification.2
Faced with Congress' enactment of Section 105(f), the Ohio General Assembly enacted R.C.
Within the regulation promulgated by appellee was Ohio Adm. Code
R.C.
The General Assembly's failure to include R.C.
After that review, appellant's appeal must proceed through the federal court system, LPG Constr. Co. v. Commonwealth Dept. ofTransp. (Pa.Commw. 1985),
We hold appellant had no R.C. Chapter 119 appeal to the Court of Common Pleas of Clinton County from the Director of Transportation's decision not to recertify it as a minority-owned and -controlled business because of a lack of subject matter jurisdiction. Accordingly, we overrule appellant's sole assignment of error and affirm the judgment below.
Judgment affirmed.
KOEHLER, P.J., HENDRICKSON and CASTLE, JJ., concur.
CASTLE, J., retired, of the Twelfth Appellate District, was assigned to active duty pursuant to Section 6(C), Article IV, Constitution.
"The director of transportation shall award contracts pursuant to this chapter in conformity to the requirements of subsection (F) of Section 105 of the Federal `Surface Transportation Assistance Act of 1982,'
"For the purpose of carrying into effect sections