06-002904 Evelyn Martinez vs. Kjc Enterprises, D/B/A Plantation Island Resort Status: Closed Recommended Order on Wednesday, January 31, 2007.

Summary: Petitioner`s failure to appear resulted in a Recommended Order of dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN MARTINEZ , )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 2904

)

KJC ENTERPRISES, d/b/a )

PLANTATION ISLAND RESORT, )

)

Respondent. )

)

RECOMMENDED ORDE R

Upon due notice, a disputed - fact hearing was held in this

case on J anuary 16 , 2007 , in Deland , Florida, before Ella Jane

P. Davis, a duly - assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: No App earance

For Respondent: C. Anthony Schoder, Jr. , Esquire

Smith & Schoder, LLP

605 South Ridgewood Avenue

Daytona Beach , Florida 32114

STATEMENT OF THE ISSUE

Whether Respondent Employer is guilty of an unlawful

employment practice on the basis of failure to hire (sex

discrimination), sexual harassment, and/or retaliatory

termination.

PRELIMINARY STATEMENT

On or about January 3, 2006, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations.

On July 6, 2006, the Commission entered its Determination: No

Cause. A Petition for Relief was treated as timely - filed by the

Commission , and the case was transmitted to the Division of

Administrative Hearings on or about August 15, 2006.

The r emainder of the p re - trial history of this case is

reserved for the Findings of Fact, infra .

FINDINGS OF FACT

1. This case was referred to the Division of

Administrative Hearings on or about August 15, 2006.

2. The parties filed respective responses [sic

"compliances"] with the Initial Order herein, which responses

were considered in setting the case for hearing.

3. Petitioner's response requested that the final

disputed - fact hearing be scheduled for any day after October 12,

2006.

4. On September 6, 2006, final hea ring was noticed for

November 8, 2006.

5. On October 5, 2006, Petitioner provided a change of

address to New York .

6. On October 10, 2006, a joint Pre - hearing Stipulation

was filed.

7. On October 23, 2006, Petitioner filed a Motion to

Continue [sic “ Request for Continuance for Good Cause ” ] .

8. On October 27, 2006, Respondent filed its Objection to

Petitioner's Request for Continuance.

9. On November 1, 2006, a motion hearing was held by

telephonic conference call. At that time, both parties agre ed

to continue the final disputed - fact hearing to January 16, 2007.

Petitioner was orally cautioned that no further continuances

would be granted except upon good cause shown.

10. Also on November 1, 2006, an Order Granting

Continuance and Re - Scheduling Hearing was entered and mailed.

The new date noticed for final hearing in that Order was

January 16, 2007, as follows:

2. This cause is hereby re - scheduled for

final hearing on January 16, 2007, at 10:00

a.m., at the Department of Transportation,

Semino le County Conference Room, 4th Floor,

719 South Woodland Boulevard, Deland,

Florida.

11 . On January 8, 2007, Petitioner filed a Motion, titled

"Motion Requesting a Continuance of Hearing Date for Good

Cause."

1 2 . Apparently also on January 8, 2007, Re spondent filed a

response in opposition to the proposed continuance, but this

item was not seen by the undersigned until January 16, 2007, at

the final hearing. 1/

1 3 . Petitioner's Motion did not , in fact, state good cause

for a continuance and was denied by an Order entered January 10,

2007, which Order was mailed that day to Petitioner's address of

record in New York. On January 11, 2007, a copy of the Order

was mailed to the Florida address which Petitioner had given

under her signature on her Motion.

1 4 . On January 16, 2007, the final disputed - fact hearing

was convened as noticed in the November 1, 2006, Order. At that

time, the undersigned, a court reporter, Respondent's counsel,

Respondent's principal, and two additional witnesses on behalf

of Res pondent were present. Petitioner was not present.

1 5 . The undersigned inquired by telephone of her office

staff and of the Clerk of the Division of Administrative

Hearings if Petitioner had contacted the Division with any

explanation for her absence and was told that she had not .

1 6 . The undersigned sounded the docket in the hallway of

the hearing room in Deland and inquired at the front desk.

Petitioner had not appeared in the building.

1 7 . After waiting 30 minutes , Petitioner still had not

appeare d.

1 8 . Respondent's counsel represented on the record that he

had spoken to Petitioner by phone on January 10, 2007, at which

time Petitioner had told him that she would not appear for the

January 16, 2007 , hearing herein . He produced a January 10,

2007 , letter he had sent Petitioner at the Florida address she

had used on her second motion to continue. ( See Finding s of

Fact 11 and 13 .) Respondent's counsel's letter was admitted as

Exhibit R - 1 , and represents that Respondent’s counsel advised

Petitioner that her motion to continue had been denied and that

the final disputed - fact hearing would be going forward on

January 16, 2007, as previously noticed for hearing on

November 1, 200 6 . ( See Finding of Fact 1 0 .)

19 . Respondent then moved ore tenus for a Recommended

Order of Dismissal , which was taken under advisement, pending

the undersigned's return to the Division of Administrative

Hearings and further inquiries as to why Petitioner had not

appeared for the final disputed - fact hearing .

2 0 . Respondent next moved ore tenus to tax fees and costs,

and presented Exhibit R - 2 , itemizing the charges of Respondent’s

counsel to Respondent and further presented the testimony of

Respondent's principal, James Frank Kulger , in support thereof.

Respondent's counsel was granted five days in which to file an

affidavit of reasonableness in regard to the services and

charges billed on Exhibit R - 2 . That affidavit was timely filed,

and has been marked and admitted as Exhibit R - 3. No transcript

was provided.

2 1 . Upon th e undersigned’s personal inquiries , when she

returned to Tallahassee, of her office staff and of the Clerk of

the Division of Administrative Hearings on January 17, 2007, the

undersigned was yet again informed that Petitioner still had not

contacted the Di vision with any excuse for not attending the

previously - noticed final disputed - fact hearing on January 16,

2007 .

2 2 . On January 18, 2007, the undersigned's secretary

informed her that Pet i tioner telephoned the secretary to the

undersigned and indicated t hat prior to January 16, 2007,

Petitioner had received the January 10, 2007, Order denying a

continuance ; knew the final hearing had remained scheduled for

January 16, 2007 ; and had elected not to attend the hearing .

Petitioner inquired if the hearing ha d gone forward anyway, and

was told by the secretary that it had. Petitioner inquired if

an order had been entered and was informed that one had not.

CONCLUSIONS OF LAW

2 3 . The Division of Administrative Hearings has

jurisdiction over the parties and sub ject matter of this cause,

pursuant to Sections 120.57(1), 120.569, and 760.11, Florida

Statutes.

2 4 . The duty to go forward and the burden of proof in this

cause is upon Petitioner. §§ 760.10 - 760.11, Fla. Stat.

Texas Department of Community Affairs v. Burdine , 450 U.S. 248 ,

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); Department of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991).

By her willful failure to appear, Petitioner failed to put on

any case, let alone a prima facie one. Accordingl y, she cannot

prevail herein.

2 5 . Respondent has clearly incurred considerable costs and

attorney’s fees in defense of the Petition for Relief. However,

the statute is clear that only the Florida Commission on Human

Relations may determine entitlement to fees and costs. See §

760.11(6), Fla. Stat. Moreover, it is premature to grant

attorney’s fees and costs until a Final Order is entered.

Responsibility for determination of the amount of fees and costs

would occur only upon remand to the undersigned by FCHR for

those purposes.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Charge of Discrimination and

Petition for Relie f .

DONE AND ENTERED this 31st day of January , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tal lahassee, 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 31st day of January , 200 7 .

ENDNOTE

1/ This response had attached to it t o a November 13, 2006,

Order of the C ircuit C ourt of the Seventh Judicial Circuit, in

and for Volusia County, declaring Petitioner , pursuant to

Florida Statutes Section 68.093, a "vexatious litigant" in a

circuit court case involving defendants other than Respondent

herein. That Order restricts Petitioner's right to file, pro

se , any new action in the courts of the Seventh Circuit after

that date, but the Order has no bearing on this administrative

case, brought pursuant to Section 120.57(1), Florida Stat utes.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

C. Anthony Schoder, Jr., Esquire

Smith & Schoder, LLP

605 South Ridgewood Avenue

Daytona Beach, Florida 32114

Evelyn Martinez

489 East 142nd Street, No. 1A

Bronx, New York 10454

Evelyn Martinez

1458 Ocean Shore Boulevard , No. 185

Ormond Beach, Florida 32176

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 th e agency that

will issue the final order in this case.