Full opinion text
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 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. By this written order and previous announcement, the Court accelerated this cause for final hearing to com-menee 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 interve-nor 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. 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 proceeding 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). 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, 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 Ear-lington 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 Me-trorail 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 Ear-lington Heights Station Project, contract no. N336R. 8. Intervenor Thacker Construction Co. (“Thacker”) is an Illinois Corporation with its principal place of business in Illinois, but licensed to do business in the State of Florida and maintaining an office in Dade County, Florida. Thacker is in the general contracting business in Dade County, Florida and is presently performing construction work for Dade County as a prime contractor on the North Bus Maintenance Facility project. Intervenor Thacker initially bid the Earlington Heights Station project on July 21,1982 and is presently rebidding that project. 9. Intervenor Allied Contractors Association, Inc., (“Allied” or “Allied Contractors”), is a Florida not-for-profit corporation with its principle office and place of business in Dade County, Florida. Interve-nor Allied is a trade association organized for the purpose of furthering and representing the interests of Black contractors and subcontractors in the construction industry. Members of Allied Contractors regularly bid on and perform construction work for Metropolitan Dade County. Inter-venor Alfred Lloyd And Sons, Inc., (“Alfred Lloyd”) is a Black-owned contractor and is a member of Allied Contractors. B. 10. In recent years Dade County has experienced tremendous demographic and social change. As a consequence of the Hispanic migration to Dade County, non-Hispanic Whites no longer constitute a majority of the county’s population, although they barely remain the largest of the three ethnic groups. The Black population has dropped from second to third in size. Dade County estimates, based on preliminary 1980 Census data, indicate that Hispanics now comprise 41 percent of the population, Blacks 16 percent, and non-Hispanic Whites 43%. At the time this case was commenced, the Black population of Dade County was estimated to be 17.2% based upon final census data. 11. Dade County’s economy has grown consistently faster than that of the nation as a whole. In 1956, the private sector provided 224,000 jobs in approximately 20,-000 different business establishments in Dade County. Twenty-one years later, the private sector economy had added another 300,000 jobs and 18,000 establishments. The job market increased 133.4 percent, and there was a 92.2 percent increase in the number of businesses. Nationally, during the same period, the number of jobs had grown only 59.7 percent and the number of business establishments only 39.1 percent. Similarly, the wholesale and retail trade industries in Dade County added 78,131 jobs and 6,350 businesses between 1956 and 1977, increases of 103.4 percent and 89.5 percent, respectively. Nationally, jobs in the same industries grew only 65.9 percent and new establishments only 39.1 percent during the same period. 12. In the construction industry, however, the national rate of growth for the period from 1956 to 1977 exceeded Dade County’s rate. The number of jobs in the construction industry increased 40.9 percent nationally and 21.3 percent in Dade County, and the number of construction businesses increased 49 percent nationally and 39.3 percent in Dade County. 13. Statistical data in the record indicates that in 1977 only one percent of business establishments in Dade County were Black-owned. Of these, about 82 percent are owner operated with no additional employees. In the county’s expenditures for major services and professional services agreements, only 2 percent of these contracts have gone to Black-owned businesses, amounting to 3.7 percent of the dollars expended. In the awarding of construction contracts and procurement, less than 1 percent of the firms involved being Black-owned, the dollar amount expended for contracts awarded to Black-owned firms amounted to only 1.4 percent of the total dollar value of all county construction contracts let. C. 14.In the aftermath of the May, 1980 Liberty City civil disturbances, Dade County set out to investigate and assess the present extent of Black business activity within the county generally and specifically in relation to doing business with Dade County. Several investigations were undertaken by outside consultants and committees into the underlying causes of these civil disturbances. Included among their findings was an analysis of the extent to which Black businesses received county contracts. The findings, conclusions and recommendations are set forth in these reports and studies: the Black Business Disparity Study, Prepared by the Disparity Study Group Task Force (October 27, 1981); Black-Owned Businesses in Metropolitan Miami, A Statistical Analysis of U.S. Census Data, prepared by Tony E. Crapp, Sr., Director, Business Development Division, Department of Trade and Commerce Development, City of Miami (December, 1980); An Economic Adjustment Plan for the Civil Disturbance Areas of the City of Miami and Dade County, prepared by Janus Associates (May, 1981); and the Report of the Governor’s Dade County Citizens’ Committee (October 30, 1980). These reports formed the basis for the development of the county’s race-conscious policy. a. The Report of the Governor’s Dade County Citizens Committee listed the major causes leading to the civil disturbances as (1) poverty, unemployment and underemployment; (2) slum housing and living conditions; (3) functional illiteracy; (4) the perception among Blacks of the local criminal justice system; (5) inadequate youth recreational facilities and activities; (6) political deprivation; (7) hard core juvenile delinquency; and (8) the general failures of society. The report contained a number of recommendations designed to expand the employment opportunities for Blacks, improve the quality of public and low cost housing, increase the complement of Black police officers, and provide special educational attention for Black students. The report concluded with an eloquent plea for cooperation from all levels of government, and all sectors of the community, to join together to create the type of overall program required to eliminate the underlying causes of racial tension in Dade County. b. A second report entitled “An Economic Adjustment Plan for the Civil Disturbance Areas of the City of Miami and Dade County” (the “Janus Report”), was made by Janus Associates, a private consulting firm. This report was intended to be a comprehensive evaluation of the economic situation in the Black communities of Dade County as part of an overall proposal for the development of an economic and adjustment assistance plan for the areas impacted during the 1980 civil disturbances. Although this report made numerous findings as to the economic condition of the local Black population, and offered a number of recommendations, for our purposes, only a couple need to be mentioned. The report found that Black business development in Dade County lagged far behind, not only that of the local White and Hispanic communities, but that of Blacks in most major cities elsewhere in the United States. This and other disparities between the Black community and the rest of the county represented a major threat to Miami’s continued growth and development as a center of international trade, commerce and tourism. Along with its other recommendations, Janus urged the development of affirmative action and set-aside programs to maximize the opportunities of Black-owned businesses in the public sector. c. In passage after passage in the Janus report, the authors described the critical nature of the economic condition in the Black community. Several short selections deserve quotation: The Black community presently lacks the tools of development necessary for economic growth and the confidence that economic progress can occur. There are few capital instruments in and for the Black community and few strong, experienced and well-supported Black economic and business development organizations. Entrepreneurial development is minimal, and there are few models of business success to inspire and provide examples for potential businesspersons. Janus Report at III — 2. Against th[e] background of a thriving, growing regional economy, the economic and demographic profile of the Black community of Dade County projects a contrasting picture. Alone among the .. . three major population groups, Blacks have not participated equitably in this general prosperity or in the major growth sectors, in terms of either jobs or business development. Ibid, at IV-16. Janus’ assessment is that the Black community of Miami remains frustrated and explosively volatile, and that only a sustained, all-out effort to remove the disparities that separate Blacks from the rest of the community will reverse this deeply entrenched mood. Ibid, at V-17. d. The Black Business Disparity Study Management group found that Black business participation in the general economy of Dade County and the business activity of the Metropolitan Dade County government were both at a level far below their proportion of the population as a whole. e. Finally, in the study entitled, “Black-Owned Businesses in Metropolitan Miami,” statistical data was adduced that in the period between 1972 and 1977 local Black-owned firms did not keep pace with the gains made nationally by Black-owned businesses. 15. In part as a result of the findings and recommendations of these reports, on November 3, 1981, the Dade County Commission, adopted Resolution No. R-1672-81, finding that past discriminatory practices have impaired the competitive position of Black owned and controlled businesses and that Blacks had not proportionately shared in Dade County’s economic development. This resolution initiated a policy to promote increased participation of Black-owned businesses in Dade County by developing programs, including specific race conscious measures. 16. The findings and conclusions of Resolution No. R-1672-81 are summarized as follows: a. There is a statistically significant disparity between the county’s Black population and both the number of Black businesses within the County and those receiving county contracts; b. The gross economic disparity between the Black community and the other communities in Dade County created frustrations in the Black community, which frustrations resulted in the May, 1980 civil disturbances; c. Past discriminatory practices have, to some degree, adversely affected and impaired the competitive position of Black-owned business, resulting in a disproportionately small number of Black businesses in Dade County; d. The causes of the statistical disparity involved the long-standing existence and maintenance of barriers impairing access by Black businesses to contracting opportunities, and did not relate to the lack of capable and qualified Black enterprises ready and willing to work; e. Dade county has a compelling interest in stimulating the Black business community, which, on the basis of past experience, is not likely to benefit significantly in the absence of specific measures to increase its participation in county business; f. Dade county has a compelling interest in promoting a sense of economic equality for all residents of the County; and g. The Black population must be provided with the opportunity of owning and developing its own businesses. 17. The net result of this action was that the commission initiated a policy at the highest level of county government of developing programs and measures to alleviate the problem of lack of participation of Blacks in the county’s economic life. This policy was based on reliable, substantial information compiled by independent investigations. Specific race conscious measures were authorized and the county manager was directed to monitor such programs and to present periodic reports to the commission as to their efficacy and viability. 18. The race-conscious policy established by Resolution R-1672-81 was intended to potentially apply to all county contracts negotiated in the future. Specific implementation of this policy would await further action by the commission. D. 19. Metropolitan Dade County government is a multibillion dollar public concern that expends approximately 620 million dollars annually in outside contracting and enters into thousands of contracts with business enterprises both locally and nationally. These contracts range from inexpensive procurement contracts to multimillion dollar Metrorail transit station projects. 20. The Dade County Metrorail system is a billion dollar project financed from federal, state and local funds. A total of forty-five major procurement and construction rail contracts have been awarded since the beginning of the project to September 30, 1982. The total dollar value of the forty-four construction and procurement rail contracts awarded amount to $440,831,-569. By adding to the construction and procurement rail contracts, the Kaisar Transit Group subcontracts, bus facilities contracts, bus design contracts and the downtown component of Metrorail contracts, the total dollar amount expended on the Metrorail system to September 30,1982 totals $581,358,287. 21. As of August 31, 1982 there were 1600 employees working on the entire Me-trorail system. Over half of that workforce (approximately 53%) is comprised of minorities (36% Black, 17% Hispanic). Also, more than 20% of the Metrorail and related construction was being performed by minority contractors and subcontractors, including approximately 7% by Black contractors and subcontractors. 22. Twenty stations are presently planned for the Metrorail system. The Ear-lington Heights station is the last station to be bid and it is located within the Black community of Dade county. This station is classified as contract number N336R. Although it was originally scheduled to be bid as a six station package consisting of the Civic Center, Santa Clara, Allapattah, Over-town, Culmer and Earlington Heights stations, it was later separated out of the package to maximize the opportunity for it to be built by a Black contractor. 23. While the majority of the contracts on the Metrorail were already awarded on a competitive basis, certain actions were taken by county officials following the adoption of Resolution No. R-1672-81 to apply race conscious measures to increase Black participation in the remaining Metro-rail construction projects. a. The County established a committee which became commonly known as the Transit Oversight Committee, which included, inter alia, between four and six county commissioners, the county manager and the transportation coordinator. The purpose of this committee was to meet periodically and review suggestions for the inclusion of race-conscious measures within contract specifications of each construction contract. b. Various administrative orders were issued to increase the participation of Black businesses in county procurement and professional services contracts. c. The county adopted a $10 million bond guarantee program in early 1982 to assist Black contractors and subcontractors in meeting the bonding requirements on Metrorail contracts. 24. Even before any final decision was made regarding the application of race-conscious measures to the Earlington Heights Station, the county was required by the federal government to adhere to certain minority business enterprise (MBE) participation standards established by the Urban Mass Transportation Administration (UMTA), and minority employment goals set by the United States Department of Labor (Labor). By the time this action commenced, the county’s MBE program exceeded both UMTA’s minority business enterprise and Labor’s minority employment guidelines. In this regard, the county’s affirmative action reports establish that more than twenty percent of the Metrorail and related construction was being performed by minority contractors and subcontractors, including approximately seven percent by Black contractors and more than fifty percent of the employees employed in the construction were minorities, including thirty-six percent Black employees. 25.Regulations issued by the U.S. Department of Transportation pursuant to 49 U.S.C. § 1615 mandate that as a condition of federal funding, each Metrorail prime contract must contain provisions insuring that a percentage of each construction contract amount be awarded to minority business enterprises or MBE’s. 49 C.F.R. Part 23 contains the following definitions pertinent to this case: a. “Affirmative action” means taking specific steps to eliminate discrimination and its effects, to ensure nondiscriminatory results and practices in the future, and to involve minority business enterprises fully in contracts and programs funded by the Department. b. “Joint venture” means an association of two or more businesses to carry out a single business enterprise for profit for which purpose they combine their property, capital, efforts, skills, and knowledge. c. “Minority” means a person who is a citizen or lawful permanent resident of the United States and who is: (a) Black (a person having origin in any of the black racial groups of Africa); (b) Hispanic (a person of Spanish or Portugese culture with origins in Mexico, South or Central America, or the Caribbean Islands, regardless of race); (c) Asian American (a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands); or (d) American Indian and Alaskan Native (a person having origins in any of the original peoples of North America.) (e) Members of other groups, or other individuals, found to be economically and socially disadvantaged by the Small Business Administration under section 8(a) of the Small Business Act, as amended (15 U.S.C. 637(a)). d. “minority business enterprise” or “MBE” means a small business concern defined pursuant to section 3 of the Small Business Act and implementing regulations, which is owned and controlled by one or more minorities or women. This definition applies only to financial assistance programs. For the purposes of this part, owned and controlled means a business: (a) Which is at least 51 per centum owned by one or more minorities or women or, in the case of the publicly owned business at least 51 per centum of the stock which is owned by one or more minorities or women; and (b) Whose management and daily business operations are controlled by one or more such individuals. e. “Set-aside” means a technique which limits consideration of bids or proposals to those submitted by MBEs. 26. Federal regulations require that the recipient of funds from the U.S. Department of Transportation set goals that are practical and related to the potential for MBE participation in the funded project. 40 C.F.R. § 23.45(g). For the period commencing with the beginning of the Metro-rail System projects and ending September 30, 1982, the county established an MBE participation goal of 16.5% of the total dollar value of all contracts awarded. As of September 30,1982 the actual MBE participation of 19.6% exceeded that goal. 27. On May 7, 1982, the county manager corresponded with the administrator of UMTA requesting technical advice as to the best contract procedure for assuring substantial minority participation in the contract for the Earlington Heights station. The county manager explained that barriers have existed in the past to contracting opportunities for Black enterprises and that a state of public exigency exists in Dade County which justified affording Black enterprises an opportunity for maximum participation in the Earlington Heights station project. The administrator responded on June 9, 1982 by stating that it was the federal government’s intention to allow Dade County maximum local flexibility and decision making authority in the implementation of the county’s MBE program. He stated that set-asides may be established when they are not prohibited by state or local law and when a grant recipient determines that they are necessary to meet MBE goals. He further explained that the set-aside may be done where at least three MBE firms with capabilities consistent with contract requirements exist so as to permit competition. Finally, he concluded that, “this authorization permits you to utilize whichever procurement procedure is appropriate to accomplish your goals in light of local conditions, i.e., noncompetitive negotiation, competitive negotiation or formal advertising, provided that the procedure selected is consistent with and does not violate state law or federal requirements relating to use of Federal funds or nondiscrimination.” E. 28.On July 20,1982, the county adopted Ordinance No. 82-67. That ordinance required review of all proposed county construction contracts to determine whether the addition to bid specifications of race-conscious measures, including bid credits, goals and set-asides would foster participation of Black contractors and subcontractors in the contract work. The ordinance was based on the findings contained in Resolution No. R-1672-81, together with the June, 1982, report of the United States Commission on Civil Rights entitled, “Confronting Racial Isolation in Miami,” which was appended thereto, and concluding that Dade County had a compelling interest in stimulating the Black business community. The ordinance directed the county manager to establish an administrative procedure to review each county construction contract to determine whether inclusion of race conscious bid specifications would foster participation of qualified Black contractors, and whether it was feasible to establish a Black prime contractor set-aside and Black subcontractor participation goals. The ordinance contained several definitions of importance: a. “Black contractor and subcontractor” means a contracting or subcontracting business entity which is owned and controlled by one or more Blacks and has established a place of business in Dade County. b. “Owned and controlled” means a business which is at least 51 percentum owned by one or more Blacks, or, in the case of a publicly-owned business, at least 51 percentum of the stock of which is owned by one or more Blacks; and whose management and daily business operations are controlled by one or more such individuals. c. “Blacks” means a person who is a citizen or lawful permanent resident of the United States and who has origins in any of the Black racial groups of Africa. d. Goals when utilized, goals shall be based on estimates made prior to bid advertisement of the quantity and type of subcontracting opportunities provided by the project to be constructed and on the availability and capability of Black contractors and subcontractors to do such work. When goals are utilized, the invitation for bid and bid documents shall require the apparent lower and qualified bidder prior to bid award to meet the goal or demonstrate that he made every reasonable effort to meet the goal and notwithstanding such effort were [sic] unable to do so. In the alternative, the bid documents may require such demonstration regarding the goal or efforts to meet it to be included by all bidders as part of their bid submission. The steps required to demonstrate every reasonable effort shall be specified in the invitation for bid and the bid documents, e.Set-asides. A set-aside is the designation of a given contract for competition solely among Black contractors. Set-asides may only be utilized where prior to invitation for bid, it is determined that there are sufficient licensed Black contractors to afford effective competition for the contract. In each contract where set-asides are recommended, staff shall submit its recommendation and the basis therefor to the Board for its initial review and determination whether waiver of competitive bidding for such contract is in the best interest of the County.' 29. By its terms, the county manager was directed to report to the commission annually on the total. dollar amount of county construction contracts and the percentage thereof to be performed by Black contractors. The Black set-aside and goal provisions continue in effect until the commission determines otherwise. 30. At the time it enacted the ordinance, the county commission adopted implementing administrative procedures. The essential provisions of the administrative procedure are summarized as follows: a. Each department is charged with the responsibility of submitting its recommendations concerning Black set-asides and goals on each construction project under its jurisdiction; b. A three member contract review committee comprised of county officials is charged with the responsibility of reviewing the Departmental recommendations and submitting a final recommendation on Black set-asides and goals to the county commission for final action; c. Black subcontractor goals are to be based on “the greatest potential for Black subcontractor participation” and . . . “shall relate to the potential availability of Black-owned firms in the required field of expertise.”; d. Availability of Black subcontractors should include “all Black-owned firms with places of business within the Dade County geographic area”; e. Black set-asides shall be considered where there exists at least three Black prime contractors with the capabilities consistent with the contract requirements; f. A Black prime contractor can be under contract for up to three set-asides within any one year period, but no more than one set-aside at a time; g. Prior to implementation of a Black set-aside, the county commission is to make findings that the Black set-aside is “in the best interest of the County in order to waive formal bid procedures.”; and h. Bid procedures limiting bids to Black prime contractors would be implemented. 31. On July 21, 1982, pursuant to competitive negotiation procedures, formal pro-posáis were received' and opened for the selection of a prime contractor to construct the county’s Metrorail Earlington Heights Station, contract no. N336R. Peter Kiewit Sons’ Company, a non-Black prime contractor, tendered the lowest bid of $6,796,520. This low bid was more than twp million dollars lower than the next lowest bid of $9,077,316.05, which was submitted by Thacker Construction Co., a Black prime contractor. Thereafter, on August 3, 1982, the county manager informally rejected both bids because: (1) the bids exceeded the county engineer’s estimate; and (2) the bidding process had been compromised by public disclosure of the proposed prices submitted and by the two bidders obtaining copies of each others’ proposals, thereby rendering it impossible to conclude the bid negotiations under applicable federal regulations. The county manager thereafter proposed to the commission that the re-bid of the Earlington Heights station be subject to the requirements of the recently enacted race-conscious policy set forth in Ordinance No. 82-67 and the administrative procedures enacted pursuant to that ordinance. .32. In accordance with the administrative procedures now in effect, the contract review committee recommended to the county manager that the commission waive the use of formal competitive bids, and set-aside the Earlington Heights contract for competitive bidding exclusively among certified Black-owned firms along with the inclusion of a fifty percent Black subcontractor participation goal. The committee specifically recommended a set-aside because there were sufficient licensed Black contractors with an established place of business in Dade County possessing the financial and technical capabilities to act as a prime contractor on the project. In addition, a goal of involving Black subcontractors in fifty percent of the dollar value of the contract work was recommended based upon a consideration of the availability of Black subcontractors for each sub-trade item of the contract work and the technical and financial capability of those firms given the job size, bonding and working capital requirements. 33. On October 5, 1982, the commission adopted Resolution No. R-1350-82, which accepted the contract review committee’s recommendations and mandated that race conscious measures be applied to the Ear-lington Heights Station. The commission noted that the Earlington Heights Station is the last Metrorail station to be bid and is located in the Black community. The commission specifically found that the: “. .. use of both a set aside and a goal on this contract will contribute towards eliminating the marked statistical disparity, noted in this Board’s prior legislation, between the percentage of overall Black business participation in county contracts and the percentage of Dade County’s population which is Black...” The resolution found that it was in the best interest of the county to waive formal competitive bidding procedures and authorized setting aside this contract for competition solely among Black-owned prime contractors. The resolution also approved the fifty percent subcontractor goal. 34. On October 8, 1982, the county issued its advance notice to bidders on the Earlington Heights Station. This notice stated that “Black” means a person who is a citizen or a lawful permanent resident of the United States and who has origins in any of the Black racial groups of Africa. In compliance with the county’s recently enacted race-conscious policy, competition was limited to Black prime contractors exclusively. The closing date for submission and the opening of bids on the Earlington Heights project was November 17, 1982. 35. Two bids were received pursuant to the notice but they remained sealed since the Court issued its restraining order before the scheduled time the bids were to be opened and announced. F. 36. There is no evidence that the present Metropolitan Dade County government has imposed any racial barriers to Black contractors in obtaining county licenses. To the contrary, county government has a formal equal opportunity services division in its Office of Transportation. This office is charged with meeting federal employment and MBE guidelines on county projects and vigorously seeks to increase minority involvement in county contracting. There is no evidence before the Court that the current Dade County government itself ever engaged in any discriminatory practices against Blacks or any other members of a minority group. 37. Before any race-conscious measures involving Black contractor set-asides and Black subcontractor goals were applied, the county, through the application of federal minority business participation guidelines, had established MBE requirements of forty percent to forty-five percent on the construction of Metrorail stations in Black neighborhoods. While Blacks were represented on the overall Metrorail project in numbers greater than their proportion to the county’s population in general, the county desired to make extraordinary efforts to involve Black contractors in the completion of the north leg of the system located in large part in the local Black community. The Earlington Heights station became the focal point for applying the race conscious measures established by the county. 38. The race-conscious program established by Ordinance 82-67 and applied to the Earlington Heights station in Resolution No. R-1350-82 was designed expressly to impact Black contractors only. It was not designed to assist members of any other minority group. 39. The ultimate objective of the county’s race-conscious program was to remedy the present continuing effects of past racial discrimination and to take affirmative steps to halt the perpetuation of the vicious cycle in which fledgling Black contractors were unable to overcome past discrimination to compete equally with White contractors. The program’s specific purpose was to remedy the disabling effects of discrimination that exist in county contracting. 40. For the most part, the various studies and reports that have been introduced into evidence, and that describe the plight of Dade County’s Black residents, attribute the low rate of participation of Black-owned businesses, including Black contractors and subcontractors, in contracts awarded by Dade County, to the continuing effects of “societal discrimination” — i.e., lack of capitalization, inadequate housing, poor general education and vocational training, lack of self-esteem, and lack of appropriate role models. The studies and the statistical data that they incorporate do conclusively establish that although more than seventeen percent of Dade County’s population is Black, only one percent (or less) of Dade County’s construction contracts are performed by Black contractors and subcontractors. 41. Although “societal discrimination” may be the ultimate cause of the extremely low percentage of Black contractors doing business in Dade County, there is evidence in this record from which the Court can find identified discrimination against Dade County Black contractors at some point pri- or to the county’s present affirmative action program. In reaching this conclusion the Court has relied on the following points: a. The record indicates that less than one percent of Dade County contractors are Black even though the overall Black population exceeds seventeen percent. The only plausible explanation for this statistical disparity is that Black contractors in Dade County continue to suffer from the present effects of past discrimination against them. b. The construction industry nationally has been particularly slow to open itself to racial .minorities. “[RJacial discrimination in the construction trades on racial grounds has been found so often by the courts as to make it a proper subject for judicial notice.” Local Union No. 35 etc. v. City of Hartford, 625 F.2d 416, 422 (2d Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981). c. The extremely low percentage of county contracts awarded to Blacks in the past. While to a certain extent this is explainable by the low percentage of Black contractors available in the area, to a larger extent, this low percentage is a present effect of past discrimination against Black contractors. 42.Since there are no Black prime contractors in Dade County qualified to perform major county construction projects, the county therefore solicited and recruited major, well-established Black prime contractors from outside Dade County and the State of Florida in order to create a pool of Black prime contractor bidders. In order to fulfill the eligibility requirements to bid on a county contract, each outside contractor had to maintain a place of business in Dade County. 43. The county’s race conscious policy has no express expiration date. It appears, however, that it was the intention of its drafters to have the program expire when Black contractors receive county contracts in proportion to their representation in the overall county population. 44. Plaintiff, the general contractors, comprised of White and other non-Black prime contractors, has jointly sponsored with the predominately Black Laborers Union a scholarship and grant program for the members of the Laborers Union and their sons and daughters. Over a fifteen year period, this program financed by contributions from White and other non-Black contractors, resulted in the distribution of more than $700,000.00 in scholarships to predominately Black students and more than $200,-000.00 in direct grants to four colleges and universities, including predominately Black Florida A & M University, Bethune-Cook-man College and Florida Memorial College. 45. While non-Black businesses could have participated in the Earlington Heights project as part of a joint venture and, in fact one of the bidders appears to be a joint venture, a joint venture would require that the Black-owned firm have at least fifty-one percent control over the project. 46. Plaintiffs did not attempt to formally challenge the county’s race conscious policy while it was being developed and prior to its adoption by the county commission. Protest at any administrative level of the government would have been ineffectual in any event. 47. Requiring that race be taken into account in the award of a contract has an effect on the contract price. Obtaining the contract at the lowest possible dollar amount need not be the exclusive goal of government contracting. Various constraints may effect the final contract price that have nothing whatsoever to do with race.. 48. After reviewing all of the evidence presented in the various reports and studies introduced into evidence, the Court expressly finds that the economic condition of the Black community in Dade County is serious. The county manager’s description that a state of public exigency exists in Dade County is not unfounded. IV. In accordance with the foregoing findings of fact, the Court makes its conclusions of law: A. 1. The Court’s first obligation is to examine and decide plaintiffs’ pendent claims since a federal court should not decide federal constitutional questions where a dispositive non-constitutional ground is available. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). This admonition is particularly appropriate in this case since it was recently held in another case similar to this one that the court there abused its discretion by reaching the federal constitutional issue where a state law claim was dispositive of the case. See Schmidt v. Oakland Unified School District, 662 F.2d 550 (9th Cir.1981); vacated and remanded, - U.S. -, 102 S.Ct. 2612, 73 L.Ed.2d 245 (1982). Accordingly, the Court turns first to Plaintiffs’ two pendent claims contained in the complaint. Taking them in the reverse order in which they are presented, the complaint alleges that the county violated its own competitive bid procedure mandated by local law when it enacted its race-conscious policy. Additionally, the complaint alleges that the county’s, race-conscious policy violated the plaintiffs’ rights under the Florida Constitution. It is the opinion of the Court that the pendent claims are not dispositive of the federal constitutional issues presented by this case. (1) 2. The plaintiffs contend that the county’s waiver of formal competitive bidding procedures on the ground that the waiver is in the best interests of Dade County violates the Dade County Home Rule Charter. Section 4.03(D) of the Dade County Home Rule Charter provides: Contracts for public improvements and purchases of supplies, materials, and services other than professional shall be made whenever practical on the basis of specifications and competitive bids. Formal sealed bids shall be secured for all such contracts and purchases when the transaction involves more than the minimum amount established by the Board of County Commissioners by ordinance. The transaction shall be evidenced by written contract submitted and approved by the Board. The Board, upon written recommendation of the Manager, may by resolution adopted by two thirds vote of the members present, waive competitive bidding when it finds this to be in the best interest of the county, (emphasis added) 3. It is apparent from the plain language contained in § 4.03(D) that the county has the necessary discretion to waive the competitive bidding requirements upon a two thirds vote of the members present. This was done in this case. In Florida, the general rule is that “a public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.” Liberty County v. Baxter’s Asphalt and Concrete, Inc., 421 So.2d 505 (Fla.1982). The county determined to waive competitive bid procedures and to apply race-conscious criteria in order to eliminate the disparity in the number of county contracts received by Black-owned businesses. Based upon the findings contained in the enacting ordinance and resolution and confirmed in the findings made by this Court, the waiver was clearly within the discretion of the county. Accordingly, plaintiff’s contention otherwise is without merit. (2) 4. Plaintiffs second pendent claim parallels their federal constitutional claim since the Florida courts have held that the equal protection and due process provisions of the Florida Constitution confer the same guarantees and impose the same standards as the equivalent provisions of the United States Constitution. See Florida Real Estate Commission v. McGregor, 336 So.2d 1156 (Fla.1976) and Florida Canners Association v. Department of Citrus, 371 So.2d 503, 513 (Fla. 2d DCA 1979), affirmed, 406 So.2d 1079 (Fla.1982). Accordingly, resolution of this issue is entirely dependent upon the outcome of plaintiffs’ federal claim and will be controlled by the Court’s decision in part IV-B of this opinion. B. 5. At least since 1954 when the Supreme Court issued Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the elimination of all vestiges of racial discrimination in our society has been a recognized goal of all branches and levels of government in the United States. While the removal of purposeful discrimination has largely been accomplished, the struggle to achieve complete equality has not yet been realized. Government therefore has sought to advance equality in American society by using affirmative action programs which employ racial classifications and numerical goals or quotas in the distribution of benefits and opportunities. Constitutional problems arise when courts are compelled to gauge the extent to which government may go in applying affirmative action plans to rectify the present effects of past discrimination. Although the Supreme Court has issued a trilogy of cases in recent years on this issue, no clear guidance has emerged in this tangled area of the law. Until some definitive resolution of the reverse discrimination dilemma is forthcoming, the legal and scholarly debate will continue. (1) 6. In this case, the plaintiffs are challenging the legality of a system of race-conscious ordinances, resolutions and procedures which permit the county to set-aside a construction contract for competition exclusively among Black contractors and to establish Black subcontractor goals on county construction contracts. It is the position of the plaintiffs that the county is prohibited by the Fourteenth Amendment from applying its race-conscious procedures to the Earlington Heights contract in such a way that plaintiffs are barred or otherwise restricted from bidding on the contract solely because of their race. The Fourteenth Amendment prohibits a state from “denypng] to any person within its jurisdiction the equal protection of the laws.” The equal protection clause means essentially that while the state may of necessity, classify people and activities in order to promote the general welfare, those persons and activities which are similarly situated must be similarly treated by law. Neither a state nor one of its subdivisions may employ a racial classification in the imposition of rights and responsibilities on its residents or in the distribution of benefits without inviting scrutiny by the courts as to the constitutionality of these classifications. Two recent notable cases out of the Supreme Court provide some guidance in resolving the important issue of whether the application of a benign racial classification is justified in this instance. 7. The constitutionality of a state’s affirmative action plan mandating preferences on the basis of racial or ethnic origin was first addressed by the U.S. Supreme Court in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). The challenge was to an admissions program adopted by the medical school of the University of California at Davis. Under that program, sixteen of the one hundred places were specifically reserved for minority applicants. Bakke, a white male whose application had been rejected, alleged that he would have been accepted but for the Davis affirmative action plan. He argued that the school had violated Title VI of the Civil Rights Act of 1964 and the equal protection clause of the Fourteenth Amendment. Five Justices, concluding that an action violates Title VI only if a similar state action would violate equal protection, reached the constitutional question. See Bakke, 438 U.S. at 287, 98 S.Ct. at 2746 (Powell, J.), 328, 355, 98 S.Ct. 2767, 2781 (Brennan, White, Marshall, Blackmun, JJ.). As to the equal protection question, Justice Powell expressed the view that all racial classifications which exclude individuals from the enjoyment of some opportunity, including those classifications operating in favor of minorities, call for strict scrutiny. Applying that standard, he concluded that a state university has a compelling interest in attracting a diverse student body, but that the strict racial quota imposed by the Davis plan was not necessary to the achievement of that goal. He held, therefore, that the Davis program violated equal protection. Justice Powell then stated, however, that in his view race may be considered as one factor in an admissions program aimed at achieving student diversity. Justices Brennan, White, Marshall, and Blackmun joined in an opinion concurring and dissenting. On the equal protection question, they would have held that racial classifications designed to further remedial purposes were subject only to an intermediate level of scrutiny; i.e., the classification must be substantially related to an important governmental interest. They found the Davis plan substantially related to the important state interest in remedying the effects of past societal discrimination and, therefore, constitutional. Justice Stevens, concurring and dissenting, was joined by the Chief Justice and by Justices Stewart and Rehnquist. The opinion by Justice Stevens concluded that the Davis plan violated Title VI, and did not reach the equal protection issue. Thus, a majority of five Justices held that a state university admissions program may not employ strict racial quotas, one of the five reaching that decision on constitutional grounds and the other four on statutory grounds. A separate majority of five Justices, however, held that a state university admissions program may take race into account as one factor. 8. In 1980 the Supreme Court revisted this issue in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), where the Court addressed the constitutionality of the minority business enterprise provision of the Public Works Employment Act of 1977. 42 U.S.C. § 6705(f)(2). Under that provision, no federal grant for a local public works project may be made without assurance by the applicant that at least ten percent of the amount of the grant will be expended for minority business enterprises or MBE’s. The implementing regulations made clear the administrative understanding that a waiver or partial waiver is justified to avoid subcontracting with an MBE at an unreasonable price, i.e., a price above competitive levels which cannot be attributed to the minority firm’s attempt to cover costs inflated by the present effects of disadvantage or discrimination. An aggrieved white contractor argued that the statutory provision violated equal protection. The Chief Justice, in an opinion joined by Justices White and Powell, found the plan constitutional and approved the act. The plurality opinion concluded that Congress acted within its competence in seeking ways to end procurement practices that can perpetuate the effects of prior discrimination. Although the Chief Justice emphasized that “[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees,” 448 U.S. at 491, 100 S.Ct. at 2781, he considered several factors that tipped the balance in favor of the statute’s constitutionality: a. The statute was enacted by the Congress, a co-equal branch of government, as a remedial measure with the objective of directing funds into the minority business community. b. Congress had before it abundant evidence from which it could conclude that this remedial measure was necessary to eliminate the effects of prior discrimination that traditional government procurement practices tended to perpetuate. c.The MBE plan envisioned by the statute allowed administrative waivers and exemptions that would absolve a grantee from compliance with the plan after making a good faith effort to achieve its objectives. While the Chief Justice warned that the MBE statute “press[ed] the outer limits of Congressional authority,” 448 U.S. at 490, 100 S.Ct. at 2781, he concluded that it passed constitutional muster since it provided a reasonable assurance that application of racial or ethnic criteria would be limited to accomplishing the remedial objectives of Congress and that misapplications of the program will be promptly and adequately remedied administratively. 9. While the plurality opinion did not explicitly state what standard of review should be applied to benign racial or ethnic classifications, Justice Powell wrote a concurring opinion in which he repeated his belief, first expressed in Bakke, that the strict scrutiny standard should be applied. Justice Powell believes that a classification is constitutionally prohibited unless it is a necessary means of advancing a compelling governmental interest. To impose a race-conscious remedy, two requirements must be met. First, the particular governmental body involved must have the authority (and capability) to act in response to identified discrimination. Second, the governmental body must make findings that demonstrate the existence of illegal discrimination. Fullilove, supra 448 U.S. at 498, 100 S.Ct. 2785 (Powell, J., concurring). The third part of the Powell test provides that the means selected by the governmental body be narrowly drawn to fulfill the purpose of the remedial measures taken. Justice Powell maintains that there is a compelling governmental interest in eradicating the continuing effects of past discrimination. However, even a benign racial classification must be responsive to identified discrimination, that is, a more focused attempt to remedy the effects of past discrimination in one particular group or industry, not society at large. Justice Powell was quite clear that the general interest of remedying past societal discrimination could not justify the use of race-conscious measures. Finally, once the governmental body proffers a comp