Cone Corp. v. Hillsborough County, 723 F. Supp. 669 (M.D. Fla. 1989)

ORDER ON MOTION FOR PRELIMINARY INJUNCTION

KOVACHEVICH, District Judge.

This cause of action is before the Court on the following motions, responses, and documents in support thereof:

Complaint in this cause of action was filed April 18, 1989, by Plaintiffs, The Cone Corporation; J.W. Conner & Sons, Inc.; Cone Constructors, Inc.; and Dallas 1 Construction & Development, Inc. against Defendants Hillsborough County and Larry J. Brown, Administrator of Hillsborough County.

The complaint alleged Defendants had, since at least 1984, engaged in a pattern and practice, and has had a custom and policy, of discrimination in the construction industry in favor of certain racial and ethnic groups and in favor of females, pursuant to County Resolution No. R88-0173 and Administrative Order implementing same. On August 15,1989, Plaintiffs amended the complaint to add the following Plaintiffs: Bulger Contracting Co.; Boyce Company; S & E Contractors, Inc.; Woodruff & Sons, Inc.; and Suncoast Utility Contractors Association.

FACTUAL BACKGROUND

1. Plaintiffs are challenging Hillsborough County Board of County Commissioners Resolution No. R88-1073 (the Resolution), adopted by the Board of County Commissioners (Board or Commission) June 29, 1988, and implemented through an Administrative Order. The current resolution is the latest in a succession of similar resolutions, the first was passed in 1984.

2. The preceding resolutions were: No. R84-1003, adopted June 20, 1984; R860170, adopted August 27, 1986; and R870249, adopted September 8, 1987. The current Resolution, as well as the preceding resolutions, implement a minority business contracting program.

3. In 1978 the Board adopted a minority-female vendor contractors program, which was essentially a voluntary program. The program required Hillsborough County

(the County) to solicit the utilization of minority and female businesses in procurement and required contractors consider utilizing them on County construction projects. (Trial Transcript (TT) pgs. 8-9). The contractors were to list on the bid form their subcontractors; and, on a separate form, were asked to indicate if they solicited minority participation. (TT pg. 12).

4. Starting in 1981, the Equal Opportunity Office (EOO) was directed to review the affirmative action plan to determine if it was “inclusive of all elements designed to perpetrate discrimination.” (Def. Ex. 35; TT pg. 9). In the process of reviewing the program, there were several steps taken, including:

d. In a November 5, 1989, summary of the “numbers used in the development of the County’s Disadvantaged Minority/Disadvantaged Women Business Enterprise Program (DMBE/DWBE),” the MBE Administrator provided the following as additional sources in determination of underrepresentation: 1) the 1980 Census of Hillsborough County as compared to the number of minority business (Reproduced and attached as Exhibit D, Table A); 2) notification from Office of Revenue Sharing to County to correct past practices in hiring of females and minorities; and 3) citation by the Environmental Protection Agency (EPA) for failure to provide minority and women businesses with a fair share of participation in procurement activities. (Def. Ex. 35).

5. Defendant’s witness Jacqueline Barr testified that during the time prior to the adoption of the first resolution, the Federal Department of Housing and Urban Development (HUD) directed the County to implement minority participation, at twenty-five (25%), on HUD sponsored projects. (TT pg. 10).

6. Ms. Barr also testified that the County received various complaints alleging discrimination existed in County construction and procurement. In response to these complaints, the County held a series of public and private meetings to gather input from the minority and majority business community. The public was invited to participate in these meetings by notice through news releases and announcements over the radio and in the newspapers. (TT pg. 29). The County also sent letters announcing the meeting to those persons that they knew were interested, such as a person who had made a previous complaint. (TT pg. 30).

7. The County witness, Jacqueline D. Barr, testified that the County received indication of “discrimination” at the public hearings and that she “thought” approximately sixty percent of the minority businesses in attendance complained, including Blacks, Hispanics and Women, and the complaints were directed to the actions of the prime contractors. (TT pgs. 31-31).

8. At the time of the adoption of the first resolution, Robert Gilder was the President of the NAACP, and, as such, he notified the County when he received complaints. (Depo. pgs. 4-6). On July 29, 1981, he wrote to Chairperson, Jan Platt, urging the County Commission to take certain actions aimed at assisting minorities, especially Blacks, in participating in County procurement and contracting. (Def. Ex. 12).

9. Mr. Gilder’s “data” was based on information and complaints received from other persons. He did little or no independent investigation of the complaints; he simply passed them on to the County for their edification. (Depo. pgs. 9, 24, 33-34). In addition, Mr. Gilder participated in workshops, testified before the Commission, and served on committees in this area. (Depo. pg. 13).

10. Mr. E.L. Bing was a County Commissioner for two (2) years between March 1983 and May 1985. (Depo. pg. 5). During his tenure, he received complaints from Blacks and other minority businesspersons regarding their exclusion from County work based on race and sex. (Depo. pgs. 5-6). The complaints were “continuous.” (Depo. pg. 6).

11. In Mr. Bing’s opinion, discrimination existed in County contracting business as to the amount of work awarded to Blacks, Hispanics, and Women. Further, in his opinion, the discrimination was practiced by the County and the prime contractors. (Depo. pgs. 9-10). For example, there were allegations made of “price-fixing” and “bid shopping” for Whites, but Mr. Bing stated he did not follow the industry and he doesn’t know “how true it was.” (Depo. pg. 15).

12. Mr. Bing testified that as a result of the complaints the Commission directed that a study be made. The studies were shared with the Commission at workshops.

(Depo. pgs. 8, 16). The Commission then designed a program to correct past discrimination and correct the imbalance against Women, Blacks, and Hispanics. (Depo. pg. 19). Ms. Barr testified that the program was designed to ensure equitable distribution of County funds (including federal funds awarded to the County) along racial, ethnic and sexual lines. (TT pgs. 46, 63).

13. The current resolution R88-0173 was adopted at a special Commission meeting of June 29, 1988. The resolution reads in relevant part:

WHEREAS, the Hillsborough County Board of County Commissioners (BOCC) has reviewed historical statistical data regarding the expenditure of funds to minority business enterprises, disadvantaged minority business enterprises, disadvantaged women business enterprises (MBE/DMBE/DWBE) as defined by Hills-borough County in comparison to the total expenditure of funds in Hillsborough County’s procurement program; and

WHEREAS, based upon the aforementioned data, the BOCC finds that such business enterprises have been disproportionately under-represented as participants in and recipients of Hillsborough County’s procurement program involving contracts for material, supplies and/or the provision of consulting and construction services to the County; and

WHEREAS, the BOCC recognizes its obligations to ensure that its contracting practices and contracting practices of its contractors and subcontractors provide a full and equitable opportunity, through affirmative action, to MBE, DMBE and DWBE firms; and

WHEREAS, the BOCC has reaffirmed its commitment to Equal Employment Opportunity and Affirmative Action.

NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF HILLSBOROUGH COUNTY, assembled this 29th day of June, 1988, as follows:

tion with the award and performance of any Hillsborough County procurement action on the grounds of race, color, national origin, or sex.

being provided to DMBEs and 2% to DWBEs. Target percentages are as shown:

County Resolutions 84-0103, 85-1215, 86-170 and 87-0249. Within forty-five (45) days the County shall provide procedures for the full implementation of this Resolution by Executive Order(s). (Pl.Ex. 1).

14. Resolution R88-0173 has been implemented by Administrative Order 88-3, issued July 11, 1988. (Pl.Ex. 2).

15. Spencer Albert is the manager of the Minority Business Section (MBS) of the Department of Equal Opportunity and Human Relations for the County. Mr. Albert is primarily responsible for implementing the Minority Business Enterprise Program. In addition, his office is responsible for certifying “bona fide” minority businesses within the program’s definition; reviewing contract bids; and monitoring minority work. (Depo. pgs. 4-5). At his deposition, Mr. Albert testified to the following facts in regard to the MBE Program:

A. The following are the steps the County utilizes in implementing the program:

tification of MBEs in a given area of opportunity to bid; offer of assistance to MBEs in reviewing plans; bonding and insurance assistance; bids made in last six (6) months and their responsiveness; and whether or not bid provides all price quotations received and explanation as to why an MBE not selected. (Depo. pgs. 20, 21).

B. The County operates on a fiscal year from October 1 to September 30. At the time of the deposition on June 21, 1989, the County had goals set up for approximately fifty (50) projects (Depo. pg. 9).

C. The goals set ranged from zero (0%) to fifty percent (50%), which is the maximum under the Resolution. For the current fiscal year the County has two (2) projects with a zero percent (0%) goal and three (3) projects with a fifty percent (50%) goal. (Depo. pgs. 10-12).

D. For all projects where goals have been set for the current fiscal year, the total estimated value is $107,438,197.00 and the MBE participation is $21,027,976.72 or 19.6%. The overall County goal, as set by the Resolution, is twenty-five percent (25%). (Depo. pg. 13). The Board has awarded contracts valued at $79,547,904.15 and MBE contract value has totaled $12,-432,047.03 or 15.6%.

E. One project goal was in the past altered, downward, as a result of a bidder’s opposition to the goal as being too high. The goal had been set at twenty-three percent (23%) and was adjusted down to 13.2%. (Depo. pgs. 14, 15).

F. The Resolution provides that the goals may be waived for a particular project. A goal is waivable at the staff level by the GSC or the Board itself may waive a goal, prior to the advertisement of the project or at the time of the bid recommendation. (Depo. pg. 16). Waivers have taken place in the past at both the staff and the Board level. (Depo. pgs. 11, 15-17).

G. In the current fiscal year, of the approximately thirty-three bids reviewed by Mr. Albert, five (5) low bids have been deemed “non-responsive” at first and then found to be “responsive” because they documented their good faith efforts or because the goal was waived. (Depo. pgs. 24-27). There have not been any low bids that have been rejected in the current fiscal year due to MBE requirements.

H. Mr. Albert testified that the City of Tampa had a similar program with a minority goal of twenty-five percent (25%) for all projects, which goal was suspended on or about March 17, 1989. (Depo. pg. 30, 31, 35). Based on the City’s annual report, Mr. Albert testified that for the last fiscal year (October through September) the City achieved a twenty-one or twenty-two percent goal. (Depo. pg. 32). The City’s third quarter report shows that since the goals were suspended, the percentage achieved had been 5.2 percent. (Depo. pg. 35). The figures breakdown as follows: Black 0.17%, Hispanic 4.35%, Female 0.48%, and Other 0.21%. (Def. Ex. (to Depo) 40).

CONCLUSIONS OF LAW

In order to resolve the motion for preliminary injunction, the Court must address the following issues: 1) the likelihood that the moving party will ultimately prevail on the merits of the claim; 2) the irreparable nature of the threatened injury; 3) the potential harm that might be caused to the opposing parties or others if the order is

issued; and 4) the public interest, if any. Since an injunction is an extraordinary and drastic remedy, it will not be granted unless the movant clearly carries the burden of persuasion as to all four prerequisites. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983).

I. Irreparable Injury

Irreparable harm is distinguished from mere injury, which can be adequately compensated through the award of money. Id., at 1520. Assuming arguendo that the County’s MBE program is in violation of the Equal Protection Clause of the Fourteenth Amendment, continuation of the program will result in a perpetuation and extension of the deprivation of Plaintiff’s constitutional rights.

Said continuing deprivation, standing alone, is sufficient to constitute irreparable injury. It is also apparent that financial hardship with difficult and speculative money damage calculations may occur if the MBE program is enforced during the pendency of this case. The irreparable injury issue weighs in favor of granting a preliminary injunction.

Potential Harm to Defendants of Others

The Court does not find, and Defendants do not postulate, any potential harm to Defendants that outweighs the harm to Plaintiffs. The granting of a preliminary injunction here will not deter the County from continuing its construction projects. The injunction will prevent the present application of the MBE Resolution by the County in the awarding of construction contracts; it will not prevent the awarding of contracts per se. Nor is there any explicated potential harm to others which outweighs the harm which may occur to Plaintiffs. Therefore, the Court concludes that this factor weighs in favor of issuance of a preliminary injunction.

Public Interest

Public interest, in this Court’s opinion, is always served by ascertaining and assuring that programs promulgated by legislative bodies, such as the County Commission, conform to the provisions of the United States Constitution. This factor weighs in favor of preliminary injunction herein.

Likelihood of Success on the Merits

The pivotal issue in this case is the likelihood of Plaintiffs being successful on the merits of the cause. If the Court determines that this factor weighs in favor of issuance of a preliminary injunction, the matter is resolved in favor of Plaintiffs.

II. The Impact of City of Richmond v. Croson

The parallels between the facts of the instant case and those of City of Richmond v. J.A. Croson Co., — U.S. -, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), are striking. In Croson, the Supreme Court struck down, as unconstitutional, a Minority Business Utilization Plan requiring prime contractors to subcontract *30% of the total dollar value, of each awarded city construction contract, to a Minority Business Enterprise (MBE). A careful analysis of the six opinions written in Croson* is critical to the proper resolution of the instant dispute.

The Court has devoted considerable time and effort to reviewing the facts of the instance case and analyzing those facts in light of the Croson case; and, it has only been due to the ever increasing press of criminal matters that this order has not previously been issued by this Court. After spending valuable judicial time on this case, and after reviewing the “best evidence” brought forward by the defendants, the Court is at a loss to understand why there has been no stipulation for entry of a preliminary injunction herein. This Court is forced to question the good faith of Defendants in opposing the efforts of Plaintiffs to suspend the MBE program of Hillsborough County, Florida.

It is very clear to the Court, from its review, that the MBE program does not meet the tests explicated by the Croson court. In many instances this Court could substitute the words “Hillsborough County” for the words “City of Richmond” or “Richmond” in the Croson decision and have a true and relevant statement. Anyone familiar with the record of this case could have, and should have, recognized the necessity for suspending the program

pursuant to Croson, as did the City of Tampa, which Defendants’ own witness, Spencer Albert, testified had a similar minority program. The Court’s time and the parties’ time, fees and expenses would have been better served by suspending this MBE program and working on a new program which conforms to the plurality’s standards for a MBE program. The decision herein brings into question all Hills-borough County construction bids let subsequent to the issuance of Croson and may well result in other litigation, in this or other courts.

In the Spring of 1983, Richmond, Virginia’s City Council adopted a Minority Business Utilization Plan (the Plan). As previously noted, the Plan required prime contractors to whom the City has awarded construction contracts to subcontract no less than 30% of the total dollar value of the contract to one or more MBE. This 30% set-aside did not apply to minority prime contractors.

Under Richmond’s Plan, an MBE was defined as a business “at least fifty-one (51) percent of which is owned and controlled ... by minority group members.” Croson (O’Connor opinion), at 109 S.Ct. page 713. Minority group members were defined by the City Council as “[cjitizens of the United States who are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.” Id., at 713. (See page 673 of this opinion to compare the Hillsborough County program definition).

Though enacted by Richmond’s City Council, there were no geographic limits placed on the Plan. A minority owned business from anywhere in the United States could make use of the 30% set-aside. The self-styled “remedial” plan was “enacted for the purpose of promoting wider participation by minority business enterprises in the construction of public projects.” Id., at 713. (Similarly, the Court finds no evidence that the County’s program was limited geographically).

Richmond’s plan included provisions for waiver of the 30% set-aside. The Director of the City’s Department of General Services was to issue rules allowing waiver in situations where a prime contractor proved to the satisfaction of the Director that the requirements of the Plan could not be achieved. Id., at 713. (This waiver provision is similar to the “good faith” determination made pursuant to the Hillsborough County resolution).

The Richmond City Council adopted the Plan after a public hearing. Five citizens spoke against the adoption of the Plan; two voiced support. Advocates for the adoption of the Plan relied on a “statistical imbalance” between the percentage of Blacks in Richmond and the percentage of the City’s prime construction contracts awarded to Blacks over the five year time period from 1978 to 1983: while Blacks composed 50% of the population of Richmond, they received only .67% of the prime construction contracts. Id., at 714. (Again, compare the “evidence” presented in adoption of the Hillsborough County program, pages 670-673 of this opinion).

There was no direct evidence of any kind which tended to show that the City of Richmond discriminated along racial lines in the letting of contracts or that prime contractor’s had discriminated against minority subcontractors. Id., at 714. (Defendants here have presented no evidence that the County had discriminated in letting contracts and the “evidence” as to discrimination by prime contractors consisted of the conclusory statements that discrimination had occurred).

A quick review of the facts pertaining to the County’s MBE program, as recited in this order, will, even to the most undiseerning eye, reveal the substantial similarity between this program and that of the Richmond Plan.

Justice O’Connor wrote for the plurality in Croson and was joined in Part II of the opinion by Chief Justice Rehnquist and Justices White and Scalia. The plurality examined the scope of Richmond’s power to

adopt legislation designed to correct past discrimination.

Croson had argued, based on the Supreme Court’s decision in Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), that Richmond was bound to limit any race-based remedial effort to erasing the effects of its own discrimination. The City of Richmond contended that the Supreme Court was bound by its decision in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), asserting that Richmond had broad power to “define and attack the effects of prior discrimination” in Richmond’s construction trade. The plurality could not accept either of those polar descriptions as to the scope of Richmond’s authority.

Justice O’Connor distinguished Fullilove from the operative facts of Croson. In Fullilove, the Supreme Court upheld a minority set-aside contained in Section 103(f)(2) of the Public Works Employment Act of 1977, 42 U.S.C. Section 6701, et seq. Justice O’Connor brushed aside Richmond’s contention that its remedial powers were as broad as those of Congress:

Justice O’Connor further addressed the issue of the difference between the powers granted to the Congress and those granted to a state or local government, by stating:

Justice O’Connor next addressed Croson’s reliance on Wygant, in support of the proposition that Richmond could only correct the effects of its own past discrimination:

The plurality opinion asserted that “as a matter of State law”, a city has control over its expenditure of public funds. It may spend its money to remedy discrimination in the private sector to the extent it can identify the discrimination with sufficient particularity to satisfy the Fourteenth Amendment. “It is beyond dispute that any public entity, state or federal, has a

compelling interest in assuring that public dollars, drawn from the tax contributions of all citizens, do not serve to finance the evil of private prejudice.” Id., at 720.

Again writing for the plurality, Justice O’Connor was joined in Part III-A by Chief Justice Rehnquist, Justice White, and Justice Kennedy. Beginning with the observation that the rights guaranteed under Section 1 of the Fourteenth Amendment are personal rights, guaranteed to every individual, the four justices concluded that Richmond’s plan denied certain individuals the right to compete for a fixed percentage of contracts based solely upon their race.

Irrespective of the racial group to which these individuals belonged, such a plan implicated their right to be treated with equal dignity and respect. Any classification based upon race must meet the rigid test of strict scrutiny, wrote Justice O’Connor, since it is often next to impossible to discern a benign or remedial classification from an invidious or illegitimate one:

The plurality compared the Court’s decision in University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) to the Croson case. In Bakke, the University of California employed a racial quota, as to the entering class of the medical school, and reserved 16 out of 100 seats for certain minority groups. The justifications postulated for the plan included the “desire to ‘reduc[e] the historic deficit of traditionally disfavored minorities in medical school and the medical profession’ and the need to ‘counte[r] the effects of societal discrimination.’ ” Id., 109 S.Ct. at 722.

Five members of the Bakke Court stated that none of the proferred interests could justify a plan that completely eliminated nonminorities from consideration of a specific portion of the opportunities for admittance in the medical school:

The four plurality members of the Croson Court made it clear that the strict scrutiny standard is to be applied to all racial classifications, regardless of which race is disadvantaged. The argument, sometimes made, that the white majority may, consistent with the Constitution, deliberately choose to disadvantage itself was inapposite on the facts of Croson. The Court noted that Blacks comprised 50% of the population of Richmond, and that five of the nine City Council seats belonged to Blacks. “The concern that a political majority will more easily act to the disadvantage of a minority based on unwarranted assumptions or incomplete facts would

seem to militate for, not against, the application of heightened judicial scrutiny in this case.” Id., at 722.

Part III-B of the plurality opinion, also written by Justice O’Connor, was joined by Chief Justice Rehnquist and Justices White and Kennedy. The plurality found that the factual predicate of the Richmond Plan suffered from the same defects as those found fatal to the plan outlined in Wygant:

Part III-B listed the predicate facts relied on by the District Court in Croson, in finding an acceptable plan in existence in Richmond, and then disabused those “facts” as being a valid basis for a race-based plan. The factors recited and rejected by the Court are as follows:

be linked to the number of local MBEs eligible for membership. Id., at 723, 726.

Justice O’Connor, in pronouncing the plurality opinion, stated in conclusion of Part III-B that:

Joining Justice O’Connor in Part IV, were Chief Justice Rehnquist and Justices White and Kennedy. On the question of whether or not the Richmond Plan is narrowly tailored to remedy prior discrimination, the plurality finds the assessment almost impossible. The four justices do find that it does not appear that any consideration was given by the City to the use of race-neutral means for increasing MBE participation:

Secondly, the plurality found that the 30% quota could not be said to be narrowly tailored to any goal except “perhaps outright racial balancing.” The goal was based on the unrealistic assumption that minorities would choose a trade “in lockstep proportion to their representation in the local population”:

Justice O’Connor, joined by Chief Justice Rehnquist and Justices White, Kennedy, and Scalia, informs regarding options or opportunities available to a state or local entity in taking action to rectify the effects of “identified discrimination within its jurisdiction.” These include: 1) where there is

evidence of systematic exclusion of MBEs, the entity may take action to end the discriminatory exclusion; 2) where there is significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors engaged by the locality or prime contractors, an inference of discriminatory exclusion could arise, and, the entity could act to dismantle the closed business system by taking appropriate action against those who discriminate (in an “extreme” case, a narrowly tailored racial preference “might be necessary”); 3) where there are individual instances of racially motivated refusal to employ minorities, an entity would be justified in penalizing the discriminator and providing “appropriate relief” to the victim; 4) if supported by appropriate statistical proof, evidence of a pattern of individual discriminatory acts may lend support to a determination that broader remedial relief is justified; and 5) in the absence of evidence of discrimination, the entity may employ an “array of race-neutral devices” to increase accessibility to contracting by small entrepreneurs of all races including: simplification of bidding procedures; relaxation of bonding requirements; training and financial aid for disadvantaged entrepreneurs; and prohibition of discrimination in provision of credit or bonding by local suppliers and banks.

This Court acknowledges and agrees with the summary of the Croson decision provided by Attorney Sam A. Mackie, “Florida Minority Business Hiring,” The Florida Bar Journal (Vol. LXIII, No. 6, June 1989):

Justice Stevens concurs in part with the plurality (specifically joining Parts I, III — B, and IV) and concurs in the judgment. Justice Stevens states he does not agree with the premise, that “seemingly underlies the plurality opinion”, that a governmental decision that rests on a racial classification is never permissible except as a remedy for a

past wrong. Croson (Stevens opinion), at page 730. Justice Stevens emphasizes three aspects of the case which are of particular import to him: 1) the city makes no claim that the public interest in the efficient performance of its construction contracts will be served by granting a preference to minority business enterprises; 2) the litigation involves an attempt by a legislative body, rather than a court, to fashion a remedy for past wrongs; and 3) identification of the characteristics of the advantaged and disadvantaged classes is more constructive to justify disparate treatment than engaging in a debate over the proper standard of review to apply.

Justice Kennedy joins all but Part II of the opinion authored by Justice O’Connor. In his opinion Justice Kennedy concludes that a “State has the power to eradicate racial discrimination and its effects in both the public and private sectors, and the absolute duty to do so where those wrongs were caused intentionally by the State itself.” The opinion further accepts the rule announced by the plurality that “any racial preference must face the most rigorous scrutiny by the courts.”

Justice Scalia agrees with much of the O’Connor opinion, including the application of strict scrutiny, but disagrees with the “dicta” suggesting that state and local entities may “in some circumstances discriminate on the basis of race in order (in a broader sense) ‘to ameliorate the effects of past discrimination.’ ” Justice Scalia states that, at least as to state or local action, “only a social emergency rising to the level of imminent danger to life and limb — for example, a prison race riot, requiring temporary segregation of inmates, (cite omitted) — can justify an exception to the principle embodied in the Fourteenth Amendment that ‘[o]ur Constitution is color-blind, and neither knows or tolerates classes among citizens.’ ” Croson (Scalia opinion), at page 735. Only where a state is acting to undo the effects of its own past discriminatory practices, does Justice Scalia find it acceptable for the State to act by race. Id., at 737.

Justice Marshall issued a dissenting opinion, joined by Justices Brennan and Black-mun. This dissent finds the plurality opinion to be a deliberate and giant step backwards in affirmative action jurisprudence. Croson (Marshall opinion), at page 740. “So long as one views Richmond’s local evidence of discrimination against the backdrop of systematic nationwide racial discrimination which Congress had so painstakingly identified in this very industry, this ease is readily resolved.” Id., at 743.

Justice Blackmun writes a second dissenting opinion, joined by Justice Brennan. Justice Blackmun also finds the majority opinion to be regressive.

This Court includes its detailed analysis of the respective Justice’s opinions in Croson as a further guide to the litigants herein, as well as a contemporary roadmap for future travelers along this newly constructed pathway. The Court would also note at this point that it has taken a stand to award the female sex equal footing with other “minorities” by capitalizing the word “Women” where ever it appears in this order.

In conclusion, the Court reiterates its previous statements and concludes that

Plaintiffs’ motion for preliminary injunction is well-taken. Accordingly, it is

ORDERED AND ADJUDGED

1. That the Plaintiffs’ motion for preliminary injunction be GRANTED. The Defendants and their representatives, agents and employees be ENJOINED from enforcing, pursuing, or taking any further action to implement Resolution R88-1073, and concomitant Administrative Orders, or any other regulation or policy which requires or permits the allocation of Hillsborough County construction contracts, from the date of the filing of this cause of action, on a system based in whole or in part on race, color, national origin, or sex, until such time as this case is heard on the merits and until further order of this Court, and

2. This preliminary injunction is conditioned upon the Plaintiffs posting a bond in the sum of $5,000.00, conditioned that Plaintiffs shall pay to Defendants such damages as they may sustain if it is determined that this injunction was wrongfully issued.

DONE and ORDERED.

EXHIBIT A

HILLSBOROUGH COUNTY TOTAL DOLLARS SPENT BY COUNTY WITH MIN ORITY/FEMALE BUSINESSES

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EXHIBIT B

Total bids awarded............................................................663

Total dollar amount awarded.........................................$2,942,919.27*

Total bids awarded minority firms..............................................42

Total dollar amount awarded minorities...............................$ 44,917.25

Percentage of bids awarded to minorities ......................................6.3%

Percentage of dollar amount awarded to minorities (Total dollar)................1.5%

Percentage of dollar amount awarded to minorities (less large $2 million bid)----6.5%

EXHIBIT C

STATISTICAL REPORT ON MINORITY/FEMALE BUSINESS PARTICIPATION IN HILLSBOROUGH COUNTY PROCUREMENT

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EXHIBIT D

Table A

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