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L. Feriozzi Concrete Company, Inc. v. Casino Reinvestment Development Authority

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 6, 2001

The Casino Reinvestment Development Authority (CRDA or Authority) and its executive director, James B. Kennedy (collectively, defendants), appeal from a Law Division judgment sustaining plaintiffs’ L. Feriozzi Concrete Company’s and Concetta Feriozzi’s (plaintiffs) equal protection challenge to a minority business enterprise (MBE) set-aside subcontracting requirement in a prime contract let out for bid by the CRDA. We conclude that the CRDA’s set-aside program cannot withstand the strict scrutiny analysis set forth in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), because it is not narrowly tailored to achieve its intended result. Specifically, it is overinclusive as to the minorities who may benefit from the program. Because we conclude that the program fails to meet the “narrowly tailored” prong of the Croson test, we need not decide on this appeal whether the program is justified by a compelling governmental interest, including identification of the appropriate governmental unit, whether there are particularized findings in the record that the CRDA has engaged in discrimination in contracting or has become a passive participant in private discrimination in contracting, or whether the CRDA failed to sufficiently utilize race-neutral alternatives. We leave these important issues for another day.

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