A Caucasian businessman who asserts he has been denied work on the basis of his race and sex says state contracts set aside for businesses owned by minorities and women are discriminatory.

Mountain State Legal Foundation filed the motion Aug. 18 on behalf of Stephen Ellis, a landscaping subcontractor in Provo, who is suing the state and its Department of Transportation. The motion for summary judgment says Utah does not have a significant enough minority population to justify abiding by a federal minority subcontractor law.According to a copy of the motion filed within U.S. District Court for Utah, Ellis feels the federal Surface Transportation Assistance Act of 1982 and the federal Surface Transportation and Uniform Relocation Assistance Act of 1987 violate the 14th Amendment of the Constitution.

These laws require states to award 10 percent of all federal highway dollars to businesses owned by minorities and women, unless the state feels the law is counterproductive, in which case the state may request a waiver from the secretary of the U.S. Department of Transportation.

The Utah Minority and Disadvantaged Business Enterprise Program, or DBE program, follows the 10 percent requirement.

Ellis's attorneys say that Utah has never applied for a waiver, and there is no history or even allegations of racial discrimination in Utah. "Congress has made no findings whatsoever as to past discrimination in the Utah highway construction industry, let alone in the award of Utah state highway contracts," the motion states.

Ellis said he has been doing highway subcontracting work since 1968 and does more than 90 percent of the Utah Department of Transportation's landscaping jobs. He said he has been the low bidder on several projects that were awarded to higher bidding minority- or female-owned firms.

The motion says that on Oct. 21, Ellis was the low bidder on a UDOT landscaping and seeding project. However, the project was awarded to a DBE firm that bid 41.5 percent higher. "Though being the low bidder by $5,250, the plaintiff was denied the contract solely on the basis of his race and sex," the motion said.

It also states that Ellis was the low bidder on a UDOT landscaping project Feb. 9, 1988, but the contract was awarded to another higher bidding DBE firm.

"It is extremely difficult for a non-DBE such as the plaintiff to continue to compete in this environment. A relevant labor market of 1.2 percent can in no way justify such a large windfall to a few people," the motion states.

Ellis and his attorneys assert that the absence of qualified, valuable DBE's has led to a substantial number of highway contracting dollars leaving Utah. In addition, the lack of competition means that DBE firm prices are higher than non-DBE firms.

They are asking that both the federal and state laws be declared unconstitutional and that the Court enter a permanent injunction, barring any further implementation of the laws in Utah.