03-003149 Truman Jeffery Mayfield vs. Karl`s Haberdashery Of Florida, Inc. Status: Closed Recommended Order on Thursday, October 30, 2003.

Summary: Respondent did not employ 15+ employees for each working day in each of 20 or more calendar weeks in current or proceeding calendar year, so does not qualify as "employer"; case dismissed upon jurisdictional grounds and Petitioner`s failure to respond.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRUMAN JEFFERY MAYFIELD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3149

)

KARL'S HABERDASHERY OF FLORIDA, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for consideration pursuant to the Order

to Show Cause entered herein on October 10, 2003. Because this

Recommended Order addresses a jurisdictional issue, a

"Preliminary Statement" is dispensed with, and all background

in formation is incorporated as part of the Findings of Fact.

APPEARANCES

For Petitioner: No appearance

For Respondent: Robert G. Riegel, Jr., Esquire

Ryan R. Fuller, Esquire

Coffman, Coleman, Andrews & Grogan, P.A.

Post Office Box 40 089

Jacksonville, Florida 32203

STATEMENT OF THE ISSUE

Whether the Division of Administrative Hearings has

jurisdiction to hear this cause, alleging that Respondent

Employer has committed an unlawful employment practice against

Petitioner.

FINDIN GS OF FACT

1. Following a July 28, 2003, "Notice of Determination: No

Jurisdiction," by the Florida Commission on Human Relations,

Petitioner filed a Petition for Relief as more fully described

below. On or about September 3, 2003, the matter was refer red

to the Division of Administrative Hearings.

2. It appearing on the face of the referral package that

Respondent did not regularly employ 15 persons and that

therefore Respondent did not qualify as an "employer" under

Chapter 760, Florida Statutes, a September 12, 2003, Order was

entered scheduling a telephonic hearing for October 1, 2003, and

permitting the filing of any documents in support of the

parties' respective positions.

3. Respondent's "Submission of Materials in Support of

Dismissal of Petition and Supporting Memorandum of Law" was

served by United States Mail on September 25, 2003. It

contained a prayer for dismissal. Pursuant to Rule 28 - 106.204,

Florida Administrative Code, Petitioner was entitled to respond

in writing by October 6, 2003. Petitioner did not respond.

4. Respondent's "Supplemental Motion to Dismiss for Lack

of Jurisdiction" was served upon Petitioner by hand - delivery, by

United States Mail, and by "e - mail" on September 26, 2003. Per

Rule, Petitioner was entitled to file a written response by

October 8, 2003. Petitioner did not respond.

5. A Corrected Order entered September 26, 2003, permitted

the parties until October 7, 2003, to submit any documents

tending to support or refute jurisdiction by the Division of

A dministrative Hearings over this cause. This Order also

rescheduled the telephonic hearing for October 9, 2003.

6. Petitioner filed nothing in response to either the

September 12, 2003, Order or the September 26, 2003, Corrected

Order.

7. At the Octobe r 9, 2003, telephonic conference call,

Respondent appeared through counsel. The opening of hearing was

delayed five minutes, but Petitioner did not appear.

Thereafter, oral argument upon all Motions proceeded without

Petitioner. Petitioner still had not called in to the meet - me

telephone number after 15 minutes, and the telephonic hearing

was concluded.

8. In an abundance of caution, an Order to Show Cause was

entered on October 10, 2003, giving Petitioner 10 days in which

to show cause, in writing, fi led with the Division, why this

cause should not be dismissed for lack of jurisdiction.

Petitioner has filed nothing.

9. Therefore, Respondent's documentation, including but

not limited to: Respondent's accountants’ affidavits and its

payroll journals, unemployment tax returns, and a payroll

schedule, may be presumed true and accurate.

10. All the documentation supports a finding that

Respondent never employed more than 14 people for any one week

in the year 2001 and employed 15 or more employees for o nly one

week (December 21 - 28, 2002) in the year 2002.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction to determine the issue of its jurisdiction,

pursuant to Section 120.57(1) and Chapter 760, Florida Statutes.

12. The u ndersigned is without final order authority in

this type of proceeding. Accordingly, the pending Motions have

been treated as a single Motion for a Recommended Order of

Dismissal.

13. Because Respondent has not employed 15 or more

employees for each wor king day in each of 20 or more calendar

weeks in the current or preceding calendar year, Respondent does

not qualify as an "employer," as defined by Section 760.02(7),

Florida Statutes. See Mousa v. Lauda Air Luftfahrt, A.G. , 258

F. Supp. 2d 1329 (S.D. Fl a. 2003), citing Scelta v. Delicatessen

Support Services, Inc. , 57 F. Supp. 2d 1327 (M.D. Fla. 1999) and

Regency Towers Owners Ass'n. Inc., v. Pettigrew , 436 So. 2d. 266

(Fla. 1st DCA 1983). See also Singletary v. Photo Plus, Inc. ,

DOAH Case No. 01 - 3846 ( RO March 29, 2002; FO September 5, 2002).

Therefore, this cause should be dismissed for that reason.

14. Additionally, Petitioner's failure to respond to the

October 10, 2003, Order to Show Cause by stating a reason why

the Petition for Relief shoul d not be dismissed for lack of

jurisdiction based on "employer" status equates to a voluntary

dismissal of the Petition for Relief, just as the Petitioner's

failure to respond to an Order to Show Cause addressing a lack

of jurisdiction based on untimelines s of the charge of

discrimination did, in Kenny v. Florida Department of

Corrections , DOAH Case No. 01 - 4016 (Recommended Order January 3,

2002; FCHR Case No. 02 - 0020: Final Order June 3, 2002). Here,

as in that case, the Order to Show Cause addressed bas ic

threshold jurisdictional issues, and this cause should be

dismissed upon the same reasoning.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing this cause for lack of

jurisdiction.

DONE AND ENTERED this 30th day of October, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hea rings

The DeSoto Building

1230 Apalachee 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 30th day of October, 200 3.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Truman Jeffery Mayfield

902 Phillips Street

Jacksonville, Florida 32207

Robert G. Riegel, Jr., Esquire

Ryan R. Fuller, Esquire

Coffman, Coleman, Andrews & Grogan, P.A.

Post Office Box 40089

Jacksonville, Florida 32203

NOT ICE OF RIGHT TO SUBMIT EXCEPTIONS

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.