05-003279 Charolette Jones vs. Akal Security Status: Closed Recommended Order on Wednesday, August 2, 2006.

Summary: The Florida Commission on Human Relations lacks subject matter jurisdiction in that Respondent is a federal enclave. Recommend that the case be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHAROLETTE JONES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3279

)

AKAL SECURITY, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER OF DISMISSAL

On November 1 2005, AKAL Security filed a Motion to Dismiss

the Petition for Lack of Subject Matter Jurisdiction or for

Summary Final Order, together with three exhibits, which

included one affidavit. The undersigned has authority only to

make a recommendation to the Florida Commission on Human

Relations (FCHR) and, therefore, the motion is considered a

motion for a recommended order of dismissal.

APPEARANCES

For Petitioner: Charolette Jones, pro se

444 East Mowry Drive, Apartment 7

Homestead, Florida 33030

For Respondent: Aaron R eed, Esquire

Littler Mendelson, P.C.

2 South Biscayne Boulevard, Suite 1500

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent

discriminated against Petitioner on the basis of gender, marital

status, and retaliation in violation of the Florida Civil Rights

Act of 1992, as amended.

PRELIMINARY STATEMENT

Charolette Jones filed a complaint with the FCHR charging

AKAL Security with discrimination on the basis of gen der,

marital status, and retaliation in violation of the Florida

Civil Rights Act of 1992, as amended. On September 12, 2005,

this matter was referred to the Division of Administrative

Hearings.

This matter was scheduled for hearing to be held on

November 15, 2005. AKAL Security requested a continuance and

concurrently filed a Motion to Dismiss the Petition for Lack of

Subject Matter Jurisdiction or for Summary Final Order, together

with three exhibits, which included one affidavit. AKAL

Security was una ble to contact Ms. Jones and, therefore, could

not represent her position on the pleading. By Order dated

November 4, 2005, the hearing was continued, the case was placed

in abeyance, and the parties were directed to file a status of

this matter no later than December 30, 2005. Further by

separate Order dated November 4, 2005, Ms. Jones was provided an

opportunity to respond, by December 7, 2005, to AKAL Security's

motion. No response was filed by Ms. Jones.

On December 29, 2005, AKAL Security filed a status report

indicating, among other things, that Ms. Jones represented that

she had received the motion and the undersigned's order,

providing her an opportunity to respond to the motion; and that

it had informed Ms. Jones that AKAL Security was filing the

status report and that she could file her own status report.

AKAL Security's status report indicated a different address for

Ms. Jones in the Certificate of Service than the address of

record. On February 8, 2006, a Stipulation for Substitution of

C ounsel was filed by AKAL Security. The Stipulation also

indicated the same address, as the status report, for Ms. Jones.

On June 22, 2006, AKAL Security's new counsel filed a

Notice of Petitioner's Failure to File a Response to

Respondent's Motion to Di smiss and Request for Ruling. On

June 26, 2006, Ms. Jones filed a letter indicating that, in

August 2005 she had moved to another apartment, indicating her

new address, and, therefore, had never received the order

providing her an opportunity to respond t o the motion; and that

she wanted a continuance of this matter and wanted this matter

to proceed to a hearing. The Notice indicated Ms. Jones'

address of record in the Certificate of Service, not her new

address, even though the Stipulation and status rep ort indicated

her new address. On June 27, 2006, the undersigned issued a

Notice of Ex - Parte Communication because it did not appear that

Ms. Jones had forwarded a copy of her letter to AKAL Security.

By Order dated July 7, 2006, Ms. Jones was provided an

opportunity to respond to AKAL Security's motion to dismiss,

with the Order being forwarded to her new address. She was

directed to file her response no later than July 31, 2006 and

advised that her failure to respond, as directed, would result

in the un dersigned issuing a ruling on the motion without

further notice. Ms. Jones filed a response on July 31, 2006,

requesting a continuance of this matter, indicating that she is

at “no time . . . willing to dismiss . . . dispute,” and not

directly addressing the argument of the motion to dismiss. The

undersigned is not persuaded that this matter should be delayed

with a continuance.

AKAL Security's Motion to Dismiss the Petition for Lack of

Subject Matter Jurisdiction or For Summary Final Order is

considered a motion for a recommended order of dismissal. AKAL

Security seeks dismissal of this matter on the basis that it

contracts to perform work at a federal enclave, that all of

Ms. Jones duties were performed on federal property, and that,

therefore, subject matter of jurisdiction does not exist to hear

Ms. Jones' claim.

Based on past experience with the FCHR, the undersigned

perceives that the FCHR would prefer to have a hearing conducted

on all issues in order to render a final order on the evidence

present ed at a hearing even if a recommendation for dismissal is

involved. Even considering the undersigned's perception of the

FCHR's preference, to conduct a hearing and, subsequently,

determine that subject matter jurisdiction does not exist would

be a waste of the resources of all concerned and would not be

economically prudent. Hence, the undersigned will address the

motion for a recommended order of dismissal. The record in this

matter is considered in resolving this motion.

A basic tenant of the law is t hat in addressing motions to

dismiss, allegations of the complaint must be accepted as true

and in the light most favorable to the Complainant. Fox v.

Professional Wrecker Operators of Florida, Inc. , 801 So. 2d 175,

178 (Fla. 5th DCA 2001); City of Gaines ville v. State Department

of Transportation , 778 So. 2d 519, 522 (Fla. 1st DCA 2001).

FINDINGS OF FACT

1. On April 11, 2005, Ms. Jones filed a complaint of

discrimination against AKAL Security with the FCHR alleging that

AKAL Security discriminated agains t her on the basis of sex

(gender -- female), 1 marital status (single), and retaliation in

violation of the Florida Civil Rights Act of 1992, as amended.

2. On August 8, 2005, the FCHR issued a DETERMINATION: NO

JURISDICTION (FEDERAL ENCLAVE). In the Dete rmination, the FCHR

provides, in pertinent part, that AKAL Security contracts with

the federal government and all of the services performed by AKAL

Security are on a federal enclave subject to the exclusive

jurisdiction of the U.S. Government. Further, th e FCHR

provided, in pertinent part, that the discrimination complained

of occurred at Krome where state anti - discrimination laws are

not applicable to employees of private contractors on federal

enclaves.

3. Also, on August 8, 2005, the FCHR issued a NOTI CE OF

DETERMINATION: NO JURISDICTION. The Notice reiterated that the

FCHR lacked jurisdiction.

4. Ms. Jones filed a Petition for Relief with the FCHR on

September 2, 2005.

5. On November 1 2005, AKAL Security filed a Motion to

Dismiss the Petition for L ack of Subject Matter Jurisdiction or

for Summary Final Order, together with three exhibits, which

included one affidavit.

6. The affidavit provided with the motion to dismiss was

provided by Jonathan Rhodes, the Human Resources Office [sic]

for AKAL Secu rity. Mr. Rhodes states in his affidavit that AKAL

Security contracts with the U.S. Department of Homeland Security

Immigration and Customs Enforcement (ICE) to provide security

services to the Krome Servicing Processing Center (Krome),

located at 18201 S outhwest 12th Street, Miami, Florida.

Further, he states that ICE is an agency of the U.S. Department

of Justice. As to Ms. Jones' position, Mr. Rhodes states that

she was a Custody Officer for AKAL Security at Krome and all of

her duties were performed on federal property.

7. Nothing in the record, including AKAL Security's

motion, indicates that Congress clearly authorized the Florida

Civil Rights Act of 1992 to be applicable to Krome.

CONCLUSIONS OF LAW

8. "When the federal government acquires title to state

land with the consent of the state legislature, Congress

acquires exclusive power to legislate in respect thereto."

(citations omitted) Miller v. Wackenhut Services, Inc. , 808 F.

Supp. 697, 699 (W.D. Mo. 1992). "Such places are 'federal

enclave s' within which the United States has exclusive

jurisdiction." (footnote omitted) Akin v. Ashland Chemical

Co. , 156 F.3d 1030, 1034 (10th Cir. 1998). "A federal enclave

is territory which has been transferred by a state through

cession or consent to the United States and over which the

federal government has acquired exclusive jurisdiction."

(citation omitted) Osburn v. Morrison Knudsen Corporation , 962

F. Supp. 1206, 1208 (E.D. Mo. 1997). A "federally owned

facility performing a federal function is s hielded from direct

state regulation, even though the federal function is carried

out by a private contractor unless Congress clearly authorizes

such regulation." Goodyear Atomic Corporation v. Miller , 486

U.S. 174, 181, 108 S. Ct. 1704, 1710, 100 L. Ed. 2d. 158, 169

(1988). As a result, Florida does not have the "power to

legislate over 'federal enclaves which' are to [Florida] as the

territory of one of her sister states or a foreign land."

(citation omitted) Lord v. Local Union No. 2088, IBEW , 646 F. 2d

1057, 1062 (5th Cir. 1981).

9. Ms. Jones alleges that the discriminatory conduct

occurred at AKAL Security's worksite, which is located at Krome.

On federal enclaves, state anti - discrimination laws are not

applicable to activities in federal enclaves and, therefore, not

applicable to employees of private contractors. See Kelly v.

Lockheed Martin Services Group , 25 F. Supp. 2d 1, 5 (D.P.R.

1998) ("No such [Congressional] statute has been passed to

permit state antidiscrimination statutes to be enforced on

federal enclaves.") ("Congress has made no . . . adoption

[specifically making state laws applicable on federal enclaves]

with regard to local tort or discrimination laws."); Miller ,

supra at 699 - 700. "[A]n authorization of state regulation is

found o nly when and to the extent there is a clear congressional

mandate, specific congressional action that makes this

authorization of state regulation clear and unambiguous."

(citation omitted) Miller , supra , at 700.

10. In the instant matter, Krome is a federal enclave.

AKAL Securities contracts with Krome. Ms. Jones performed all

of her duties at Krome. No congressional mandate authorized

Florida's anti - discrimination laws to be applicable and

enforceable at the federal enclave, Krome.

11. The FCHR f ails to have subject matter jurisdiction

over this matter and, therefore, the Division of Administrative

Hearings lacks subject matter of jurisdiction over this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RE COMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the complaint of discrimination

filed by Charolette Jones against AKAL Security for lack of

subject matter jurisdiction.

DONE AND ENTERED this 2nd day of August, 2006, in

Tallahassee, Leon County, Florida.

S

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 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 2nd day of August, 2006.

ENDNOTE

1/ Sex was FCHR's category of discrimination used o n the

complaint.

COPIES FURNISHED:

Charolette Jones

444 East Mowry Drive, Apartment 7

Homestead, Florida 33030

Aaron Reed, Esquire

Littler Mendelson, P.C.

2 South Biscayne Boulevard, Suite 1500

Miami, Florida 33131

Denise Crawford, Agency Clerk

Flor ida 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

2009 Apalachee Parkway

Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGH T 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.