04-001020 Ronald J. Clardy vs. Department Of Corrections Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, May 7, 2004.

Summary: The 35-day filing time is jurisdictional and cannot be extended. The statute and rules require the filing of a petition, not the service of a petition, within 35 days. The filing of a petition occurs when it is actually received, not when it is posted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD J. CLARDY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1020

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

ORDER OF DISMISSAL

This matter came on for consideration on Respondent's

Motion to Dismiss filed March 30, 2004. Having reviewed the

file and being otherwise advised in the premises, it is

ORDERED:

1. Section 760.11 establishes the process to be followed

by Florida Commission on Human Rela tions (FCHR) when a charge of

discrimination is filed. Section 760.11(3) and (7), Florida

Statutes, states, in part:

(3) Except as provided in subsection (2),

the commission shall investigate the

allegations in the complaint. Within 180

days of the fili ng of the complaint, the

commission shall determine if there is

reasonable cause to believe that

discriminatory practice has occurred in

violation of the Florida Civil Rights Act of

1992. When the commission determines

whether or not there is reasonable c ause,

the commission by registered mail shall

promptly notify the aggrieved person and the

respondent of the reasonable cause

determination, the date of such

determination, and the options available

under this section.

* * *

(7) If the commission dete rmines that there

is not reasonable cause . . . the commission

shall dismiss the complaint. The aggrieved

person may request an administrative hearing

. . . but any such request must be made

within 35 days of the date of determination

of reasonable cause . . . . If the

aggrieved person does not request an

administrative hearing within the 35 days,

the claim will be barred .

2. On January 30, 2004, FCHR issued a Notice of

Determination: No Cause, in FCHR No. 2201672, Ronald J. Clardy

vs. FL Department of Corrections and informed Petitioner of the

determination and his subsequent right to request an

administrative hearing within 35 days of its determination.

Petitioner had 35 days from January 30 or until March 5 to

request a hearing.

3. FCHR rece ived a Petition for Relief from Petitioner on

March 8, 2004, more than 35 days after FCHR entered its

determination. On March 9, 2004, FCHR properly issued a Notice

of Dismissal for failure to timely file a Petition for Relief

within 35 days after the dat e of its determination. Florida

Administrative Code Rule 60Y - 5.008 and Section 760.11.

4. In response to the dismissal, Petitioner provided FCHR

with documentation that he sent, by next day delivery, his

Petition for Relief to FCHR on the afternoo n of March 4, 2004,

(approximately 34 days after the date of the Notice of

Determination: No Cause). However, for unknown reasons, the

petition was not delivered to or received by FCHR until March 8,

2004 more than 35 days after the date of its determina tion. The

petition was filed on the same date. Based on Petitioner’s

documents, FCHR issued a Rescission of Notice of Dismissal on

March 19, 2004. As sole reasoning for its decision to rescind

the Notice of Dismissal, the Commission cited the fact that the

petition was sent "in a timely manner as required pursuant to

Rule 60Y - 5.008(1)."

5. Rule 60Y - 5.008(1) states:

Petition. A complainant may file a Petition

for Relief from an Unlawful Employment

Practice within 35 days of the Date of

Determinatio n of Reasonable Cause, No

Reasonable Cause, No Jurisdiction or

Untimeliness. A complainant who is not

represented by an attorney may file a

Petition for Relief without copies or proof

of service, and the Clerk shall prepare

copies and serve them upon all other

parties. (emphasis added)

6. Rule 60Y - 5.008(3) states:

Procedures. Petitions for Relief, and

proceedings thereupon, are governed by the

provisions of Chapters 28 - 106 and Florida

Administrative Code Rule 60Y - 4, except as

otherwise provided by this section.

7. Section 120.569(2)(c), states, in pertinent part:

A petition [for relief/hearing] shall be

dismissed if . . . it has been untimely

filed.

8. The statute and the rule unambiguously provide that the

Petition for Relief must be filed within 35 days of the date of

the determination by FCHR. This time is jurisdictional and

cannot be added to. There is a difference between filing a

petition and serving a petition. Filing by definition occurs

and is complete when an agency actually receives a document.

Fla. Admin. Code R. 28 - 106 - 104. Service occurs and is complete

when mailed or posted. The act required by the statutes and

rule is filing of a petition, not service of a petition.

9. In this case, Petitioner's Petiti on for Relief was not

filed until received by FCHR on March 8, 2004, more than 35 days

after the determination by FCHR. The fact that Petitioner sent

the petition to FCHR on March 4, 2004, is irrelevant to a

determination of when the petition was filed. FCHR has no

authority to ignore the clear language of the statutes and

rules. Therefore, the Petition for Relief is dismissed.

DONE AND ORDERED this 6th day of May, 2004, in Tallahassee,

Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

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 6th day of May, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Ronald J. Clardy

Post Office Box 6021

Pa nama City, Florida 32404

Mark Simpson

Assistant General Counsel

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

Cecil Howard, General

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, F lorida 32301

NOTICE 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.