01-003928 Maria Oliveras vs. Aero Decal Status: Closed Recommended Order on Wednesday, November 28, 2001.

Summary: Division without jurisdiction to conduct formal hearing if Respondent does not meet definition of "employer"; and claim is time barred if not filed within 35 days of Commission`s determination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA OLIVERAS, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3928

)

AERO DEC AL, )

)

Respondent. )

___________________________)

RECOMMENDED ORDER OF DISMISSAL

THIS CAUSE came on to be heard by Daniel M. Kilbride,

Administrative Law Judge, on the Motion to Dismiss filed

Oc tober 29, 2001, by Respondent, before the Division of

Administrative Hearings, in Tallahassee, Florida. Petitioner

was advised of the Motion; the Administrative Law Judge issued

an Order to Show Cause, dated October 31, 2001, and Petitioner

did not file a response within the required time, pursuant to

Rules 28 - 106.204(1) and (4), Florida Administrative Code. The

arguments presented in the Motion have been fully considered.

The following appearances were entered:

APPEARANCES

For Petitioner: No appearance

For Respondent: Christopher J. Coleman, Esquire

Schillinger & Coleman, P.A.

1329 Bedford Drive, Suite 1

Melbourne, Florida 32940

STATEMENT OF THE ISSUES

Whether the Division of Administrative Heari ngs has

jurisdiction to conduct a formal hearing under the provisions

of Sections 120.569 and 120.57(1), Florida Statutes, if the

Petition for Relief does not allege that Respondent is an

"employer" under Section 760.02(7), Florida Statutes, and if

the Pet ition for Relief was not timely filed pursuant to

Section 760.11(7), Florida Statutes.

PRELIMINARY STATEMENT

On February 22, 2001, Petitioner filed with the Florida

Commission on Human Relations (the "Commission") a Charge of

Discrimination against Respond ent based on her sex and her

personal life. The Charge alleged that Respondent had eight

employees. The Commission then conducted an investigation.

Upon completion of its investigation, the Commission issued

its Notice of Determination: No Jurisdiction . The

Commission's investigation determined that Respondent did not

employ 15 or more employees for each working day over the

current year and preceding year. The Commission mailed a copy

of its Notice of Determination: No Jurisdiction to Petitioner

on August 30, 2001. Petitioner was advised that she must file

a Petition for Relief within 35 days of the date of the Notice

or her claim would be barred. Section 760.11(7), Florida

Statutes. The 35th day following the date of issuance of the

Notice of Det ermination was October 4, 2001. Petitioner filed

her Petition for Relief with the Commission on October 5,

2001. Petitioner requested a formal hearing under the

provisions of Section 120.57(1), Florida Statutes. In her

Petition, Petitioner acknowledged that Respondent has less

than 15 employees on its payroll. The Commission referred

this matter to the Division of Administrative Hearings on

October 11, 2001, for resolution of the issues. Respondent

filed its Answer and Affirmative Defenses to the Petit ion for

Relief on October 24, 2001. Respondent filed its Motion to

Dismiss on the same date. On October 31, 2001, an Order to

Show Cause was issued directing Petitioner to respond to the

Motion to Dismiss within ten days of the date of the Order or

the c ase would be dismissed. The Motion and the Order were

sent to Petitioner's last known address. Petitioner has not

filed a response to the Motion or to the Order to Show Cause

as of the date of this Recommended Order. It is, therefore,

FOUND AND DETERMIN ED that Petitioner had until October 4,

2001, to file her petition, pursuant to the statute. The

Petition was not filed with the Commission until October 5,

2001. Petitioner has not filed a response to the Motion to

Dismiss or the Order to Show Cause, an d has not shown good

cause for her delay in filing the Petition, nor has she

alleged that Respondent was an "employer" within the meaning

of Section 760.02(7), Florida Statutes. Therefore, the

Petition for Relief is time barred for failure to file the

Pet ition within 35 days of the date of determination of no

reasonable cause by the Commission. Section 760.11(7),

Florida Statutes (2001); Wright v. HCA Central Florida

Regional Hospital, Inc. , 18 FALR 1160 (1995), cf. St.

Petersburg Motor Club v. Cook , 567 So. 2d 488 (Fla. 2d DCA

1990) and Joshua v. City of Gainesville , 768 So. 2d 432 (Fla.

2000); see Blakely v. United States Automobile Ass'n , 1999 WL

1053122 (M.D. Fla., October 4, 1999); Dawkins v. Bellsouth

Telecommunications, Inc. , 53 F.Supp.2d 1356, 1360 - 61 (M.D.

Fla. 1999). This procedure has been determined to be

constitutional, under Florida law. McElhath v. Burley , 707

So. 2d 836 (Fla. 1st DCA 1998). Further, and equally

important, DOAH and the Commission lack jurisdiction over the

Petition for Rel ief and the Charge of Discrimination based on

the fact that Respondent is not an "employer" within the

meaning of Section 760.02(7), Florida Statutes. Regency

Towers Owners Association, Inc. v. Pettigrew , 436 So. 2d 266

(Fla. 1st DCA 1983), rev. den. 444 So. 2d 417 (Fla. 1984).

RECOMMENDATION

Based on the foregoing facts and conclusions of law, it

is

RECOMMENDED that a final order be entered dismissing with

prejudice the Petition of Maria Oliveras in DOAH Case

No. 01 - 3928; FCHR Case No. 21 - 01229.

DONE AN D ENTERED this 28th day of November, 2001, in

Tallahassee, Leon County, Florida.

_____________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of November, 2001.

COPIES FURNI SHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 2 40

Tallahassee, Florida 32303 - 4149

Christopher J. Coleman, Esquire

Schillinger & Coleman, P.A.

1329 Bedford Drive, Suite 1

Melbourne, Florida 32940

Maria Oliveras

339 Galicia Street Southwest

Palm Bay, Florida 32908

NOTICE OF RIGHT TO SUBMIT EXCEPTI ONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.