10-009509 John Ziolkowski vs. Park Shore Landing Condominum Association, Et Al. Status: Closed Recommended Order on Wednesday, June 29, 2011.

Summary: Recommend dismissal based on Petitioner's failure to appear at hearing to meet his burden of proof. Petitioner's belated request to reschedule failed to establish legitimate reason for not appearing on time or contacting anyone to explain his absence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN ZIOLKOWSKI , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9509

)

PARK SHORE LANDING CONDOMINUM )

, )

)

Respondent . )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, a final hearing was convened in this

case on February 15, 2011, in Naples, Florida, before

Elizabeth W . McArthur, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: James K. Parker, Esquire

Joseph G. Riopelle, Esquire

Boyd , Richards , Parker

and Colonnelli, P.L.

400 N orth Ashley Drive, Suite 1150

Tampa, F lorida 33602

STATEMENT OF THE I SSUE

The issue is whether this case should be dismissed based on

Petitioner's failure to appear at the scheduled final hearing.

PRELIMINARY STATEMENT

On June 25, 2010, Petitioner, John Ziolkowski (Petitioner

or Mr. Ziolkowski), filed a Housing Discrimi nation Complaint

with the Florida Commission on Human Relations (FCHR), alleging

that Petitioner had an unspecified disability and that

Respondent, Park Shore Landings Condominium Association, Inc.

(Respondent), discriminated against him by not providing a

reasonable accommodation for his disability.

After investigation, the FCHR issued its Determination of

No Cause, finding no reasonable cause to believe that a

discriminatory housing practice occurred. Petitioner timely

filed a Petition for Relief seekin g an administrative hearing to

contest the FCHR determination. On October 7, 2010, the case

was forwarded to the Division of Administrative Hearings (DOAH)

for assignment of an Administrative Law Judge to conduct the

hearing requested by Petitioner.

Due to the procedural nature of this decision, the

remaining facts usually provided in a Preliminary Statement are

set forth in the F indings of F act below.

FINDINGS OF FACT

1. Upon receipt of the Petition for Relief at DOAH, an

Initial Order was issued on Oc tober 8, 2010, requiring

Petitioner to coordinate a joint response to provide certain

information within seven days or to file a unilateral response ,

if a joint response was not possible. Petitioner did not

respond to the Initial Order.

2. On October 15 , 2010, Respondent submitted a unilateral

response indicating that Petitioner had not contacted Respondent

to coordinate a response.

3. The undersigned issued a Notice of Hearing on

November 5, 2010, scheduling the final hearing for December 8,

2010, a t the Martin Luther King, Jr., Administrative Center in

Naples, Florida. The notice included citations to the

procedural statutes and rules governing the hearing and

information about the parties' obligation to appear at the

hearing with their witnesses a nd evidence. With the Notice of

Hearing, the undersigned issued an Order of Pre - hearing

Instructions, which required the parties to exchange witness

lists and copies of their proposed exhibits at least seven days

before the final hearing and to file their witness lists with

DOAH. The O rder warned that failure to comply with these

requirements "may result in the exclusion at the final hearing

of witnesses or exhibits not previously disclosed."

4. The foregoing O rders and notice were mailed to

Petitioner at his address of record in New York, New York, and

none of these envelopes w as returned as undeliverable.

Petitioner resides in New York, but as specified in the FCHR

Determination of No Cause, Petitioner is a frequent visitor to

Naples, Florida, where h is mother lives in a condominium she

owns at Park Shore Landings. Indeed, it was Petitioner's rental

of a unit at Park Shore Landings, on multiple occasions spanning

multiple weeks that gave rise to Petitioner's complaint filed

with FCHR.

5. On November 23, 2010, Respondent filed a Motion for

Continuance because of difficulties coordinating Petitioner's

deposition to accommodate Petitioner's holiday travel plans and

scheduling conflicts. A continuance was granted for good cause

shown, and the final hear ing was rescheduled for February 15,

2011, at 9:00 a.m., in Naples , at a location to be determined at

a later date. The O rder stated that the previous Order of

Pre - hearing Instructions remained in full force and effect.

6. An Amended Notice of Hearing w as issued on December 9,

2010, to specify the hearing location: Martin Luther King, Jr. ,

Administrative Center, 5775 Osceola Trail, Naples , Florida .

This notice repeated the hearing date ( February 15 , 2011) and

time (9:00 a.m.). The notice also reiterat ed that the parties

were required to appear at the time and place of the hearing

with their witnesses and evidence and that failure to appear may

result in dismissal. The notice listed the name, address, and

telephone number for the hearing room contact p erson at the

hearing site. The notice was mailed to Petitioner at his

address of record and was not returned undeliverable.

7. On December 15, 2010, Respondent filed a notice of

taking Petitioner's deposition in Naples on December 22, 2010,

at a court reporter's office near the scheduled location for the

final hearing.

8. On February 2, 2011, the undersigned issued another

Amended Notice of Hearing to advise that any party desiring a

court reporter had to make arrangements at the party's own

expens e, with notice to the other party and to the undersigned.

This notice repeated the final hearing date (February 15, 2011),

time (9:00 a.m.), and location (Martin Luther King, Jr.,

Administrative Center, 5775 Osceola Trail, Naples). The notice

also repeat ed the name, address, and telephone number for the

hearing room confirmation contact person. Like all previous

notices of hearing, the notice reiterated that parties were

required to appear at the time and place of the hearing with

their witnesses and evi dence and that "[f]ailure to appear at

this hearing may be grounds for entry of an order of dismissal."

9. On February 8, 2011, in accordance with the Order of

Pre - Hearing Instructions, Respondent filed its witness list,

with names and addresses for five witnesses and a certification

that Respondent's exhibits had been provided to Petitioner. No

witness list was filed by Petitioner.

10. On February 10, 2011, Respondent gave notice to the

undersigned and to Petitioner that Respondent had retained a

court reporter to record the February 15, 2011, final hearing.

11. The undersigned traveled from Tallahassee to Naples on

Monday, February 14, 2011, and stayed overnight at a hotel in

Naples, in order to convene the hearing scheduled for 9:00 a.m. ,

the next mo rning.

12. On February 15, 2011, the undersigned arrived at the

noticed hearing location at approximately 8:30 a.m. Counsel for

Respondent (from Tampa) and four of Respondent's witnesses were

already present. Arriving at the same time as the undersign ed

was Respondent's fifth witness and the court reporter.

13. At 9:00 a.m., the undersigned went on the record to

convene the scheduled hearing to allow counsel for Respondent to

enter his appearance for the record and to announce that

Petitioner had not appeared or contacted anyone to explain his

absence. The undersigned then recessed the hearing for

20 minutes in case Petitioner was running late.

14. At 9:12 a.m. (as time - recorded by the undersigned's

mobile phone), the undersigned called her assista nt at DOAH to

determine whether Petitioner had called DOAH or submitted

anything in writing that would explain his failure to appear for

the scheduled hearing. The undersigned's assistant stated that

no calls or filings had been received and that she woul d call

the undersigned on her mobile phone immediately , if Petitioner

contacted her.

15. Meanwhile, to make sure that Petitioner was not on the

premises unable to find the hearing room, one of Respondent's

representatives checked at the front desk, where anyone entering

the building would have to check in and go through the security

procedures, and verified that Petitioner had not arrived.

16. Shortly after 9:20 a.m., the undersigned went back on

the record to state that Petitioner had still not appeared, nor

had Petitioner contacted DOAH or someone at the hearing site.

The undersigned recited the steps taken to verify the absence of

contact by Petitioner; reviewed the file, noting the multiple

notices and O rders mailed to Petitioner; and confirmed

Petiti oner's address of record to which the notices and O rders

were mailed and not returned as undeliverable.

17. Respondent represented that Petitioner did not show up

for the first deposition scheduled in coordination with

Petitioner's calendar, but that Peti tioner did appear the second

time his deposition was set. Respondent also represented that

Petitioner did not provide Respondent with a witness list or

copies of any proposed exhibits. Respondent had no other

information about Petitioner's whereabouts or intentions.

18. Based on Petitioner's failure to appear and present a

prima facie case to meet his burden of proof, the convened

hearing was adjourned shortly before 9:30 a.m. Those present

took some time to pack up computers and files and move furnitur e

to restore the room to its prior configuration. Thus, it was

after 9:30 a.m. , when the undersigned exited the building, after

checking again at the front desk to verify there was still no

sign of, or word from, Petitioner.

19. The undersigned drove to a hotel located eight minutes

from the hearing site. Upon arrival, the undersigned's mobile

phone rang, but could not be answered before the call went to

voice mail. A voice mail message was left by the undersigned's

assistant, time - recorded at 9:51 a.m.

20. The message was that the undersigned's assistant had

just spoken with Mr. Ziolkowski, who had called to say that he

was at the hearing site , but no one was there. Petitioner told

the assistant that he had been at the emergency room until an

hour ear lier (i.e., until 8:45 a.m.), and he went straight to

the hearing site. The undersigned's assistant asked Petitioner

why he had not called sooner, and his only response was that he

did not have his mobile phone; but when asked how he was calling

her then, he said he was calling from his mobile phone, and he

gave the assistant his mobile phone number, which had not been

provided previously. Petitioner then asked the undersigned's

assistant about rescheduling the hearing. She explained that

she had no auth ority to address his request; if Petitioner

wanted the undersigned to consider a request for relief, it had

to be submitted in writing and should provide any explanation

and documentation he had as to why he could not be at the

hearing and why he could not call.

21. A memorandum from Mr. Ziolkowski was filed at DOAH by

fax on February 16, 2011, at 2:40 p.m. The one - page memorandum,

with no attachments and no certificate of service indicating

service on Respondent, stated in pertinent part:

Please accept m y apologies for not being

able to communicate with you yesterday

regarding my delayed appearance to your

courtroom.

I was in the emergency room at Naples

Community Hospital until 8:11 am Tuesday

(2/15/11).

I went straight from the hospital to the

Adminis trative center and I didn't have my

mobile phone or directions to the

Administrative center and finally I reached

the Administrative center at approximately

9:30 a.m.

Petitioner ended the memorandum with a request to reschedule the

final hearing. Copie d onto the bottom of the page was a small

label, perhaps a hospital - issued identification bracelet bearing

Petitioner's name and date of birth, a reference number and

several other numbers, "NCH 02/15/11," and a bar code.

22. The undersigned issued a Not ice of Ex - Parte

Communication with the memorandum attached, which was mailed to

both parties.

23. On February 28, 2011, Respondent filed its Objection

to Petitioner's Request for Re - Hearing. Respondent's o bjection

asserted that the documentation offered by Petitioner was

insufficient to prove that Petitioner was at Naples Community

Hospital until 8:11 a.m. on February 15, 2011, because the

identification label only showed a date, February 15, 2011,

which could be as early as 12:01 a.m., or as late as many hours

after the scheduled hearing. Petitioner chose not to provide

the documentation that he apparently had to show the precise

time that he left the emergency room -- 8:11 a.m. (more than

30 minutes earlier than he told the undersigned's assistant on

the telephone). Such documentation would also likely reveal

such information as the time of day or night when Petitioner was

clocked in at the emergency room; why Petitioner presented at

the emergency room; what, if anything, was wrong with

Petitioner; and wh ether he received any treatment or whether

treatment was deemed unnecessary.

24. Respondent's o bjection went on to note that even

assuming the accuracy of Petitioner's stated departure time of

8:11 a.m. , from Naples Community Hospital, that hospital has

o nly two campuses, "one of which is six minutes and the other is

fifteen minutes away from the location of the hearing."

25. Respondent's o bjection concluded, "At bottom,

Petitioner was not in the emergency room at the time of the

hearing, had ample time to attend the hearing, and has provided

no evidence to support his request to re - schedule the

duly - noticed February 15, 2011 hearing."

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569, 120.57(1), and 760.35, Fla. Stat.

(2010). 1/

27. Petitioner has the burden of proof in this proceeding.

He must prove by a preponderance of the evidence his allegations

that he has a disability/handicap and that Respondent engaged in

a housing discriminatory practice by not providing a reasonable

accommodation for such disability/handicap. See §§ 760.34(5)

and 120.57(1)(j).

28. Petitioner failed to appear at the time and place

noticed for the final hearing. In addition, Petitioner failed

to provide notice prior to or at the time the final hearing was

scheduled to commence that he would be unable to attend the

hearing at the time it was scheduled. Petitioner was required

to appear at the scheduled hearing, with witnesses and evidence

necessary to meet his burden of proof. As stated in the Notices

of Hearing, Petitioner's failure to do so constitutes grounds

for dismissal.

29. Petitioner's written submission the day after the

scheduled hearing fails to provide sufficient excuse or

documentation to explain Petitioner's failure to appear at the

time and place of the scheduled hearing or to at least call to

alert those convened, prepared to proceed, and waiting for

Petitioner to appear that he would be delayed.

30. In effect , Petitioner's belated request to reschedule

the hearing that was scheduled, convened, and adjourned on

February 15, 2011, is an after - the - fact request for continuance.

A motion for continuance must generally state good cause to

cancel and reschedule a fi nal hearing; however, the standard is

substantially higher when a continuance is requested less than

five days before the scheduled hearing. In such a case, the

motion must demonstrate grounds that constitute an emergency.

Fla. Admin. Code R. 28 - 106.210.

31. Petitioner's request fails to demonstrate any

emergency that would justify rescheduling the final hearing.

Instead, Petitioner's own written submission filed the day after

the scheduled hearing admits that he was available and able to

attend the fin al hearing at the time it was scheduled.

Petitioner would have been at the hearing site on time with the

exercise of reasonable diligence. Petitioner offered no

reasonable excuse for not being able to travel a short distance

(either six or 15 minutes fro m the hospital) in less than

49 minutes, so as to arrive at the hearing on time. Petitioner

does not claim that he was incapacitated; Petitioner does not

even state what prompted him to go to the hospital. Regardless,

whatever problem may have existed ea rlier admittedly subsided by

8:11 a.m., when Petitioner acknowledges that he was fully

capable of driving himself from the hospital to the hearing

site. Petitioner's only excuse for not arriving at the hearing

site on time was his claim that he did not ha ve directions to

the hearing site. Petitioner could have, and should have, asked

for directions if , in fact , he was unsure of the way to the

hearing site.

32. Even without being reasonably diligent, by having the

slightest regard for the hearing process, Petitioner could have,

and should have, gotten word to the undersigned by the time the

hearing was scheduled to begin that he intended to appear , but

might be delayed. Petitioner's written submission is wholly

inadequate to excuse or expla in his failure to call anyone -- the

undersigned's office; the Martin Luther King, Jr. Administrative

Center; or the hearing room contact person, whose name, address,

and telephone number appeared on the N otices of H earing -- at any

time from 8:11 a.m. , until Petitioner fina lly called the

undersigned's office at approximately 9:45 a.m.

33. Petitioner's only offered explanation for failing to

call when he left the hospital and supposedly went straight to

the hearing site (but took 90 minutes to get there) , was that he

did not have a cell phone. Petitioner's claim, even if true,

does not excuse his failure to call. The lack of a mobile phone

does not constitute an emergency. There are other phones

available for use. For example, hospitals have phones. Surely,

Petitioner wo uld have been allowed to use a phone when leaving

the emergency room to call for directions or to get word that he

might be delayed. Knowing that the hearing was scheduled to

start at 9:00 a.m., it was inexcusable for Petitioner to not

seek out a telephon e to get word of his delay, at least at some

point in the 49 minutes after he left the hospital when it would

have become obvious to Petitioner that he would not arrive to

the hearing on time. Indeed, if Petitioner had called at any

time within one hour a nd nine minutes after leaving the

hospital, the hearing would have still been convened. Instead,

Petitioner continued on for more than 30 minutes after the

hearing began, knowing he was late , and still did not tak e any

reasonable step to contact anyone.

34. Although Petitioner claims he did not have his mobile

phone, inexplicably, Petitioner had his mobile phone to call the

undersigned's assistant at 9:45 a.m., when he reported that he

was at the hearing site but that no one else was there. Even if

Petit ioner meant to say that he had been to the hearing site and

left to go retrieve his mobile phone, then his mobile phone was

awfully close to the hearing site, only minutes away. Thus,

even if Petitioner had been unwilling to seek out another phone

after h e left the hospital at 8:11 a.m., it is inexplicable why

he would not have gone to get his mobile phone instead of,

apparently, spending over 90 minutes to drive directly to the

hearing site that was 15 minutes away, or less, from the

hospital.

35. Petiti oner's submission lacks competent substantial

evidence to support the unverified facts stated therein, but

even if the facts were supported, the submission is insufficient

to establish that an emergency kept Petitioner from appearing at

the final hearing a t the time it was scheduled or that an

emergency kept Petitioner from contacting the undersigned's

office before the final hearing was scheduled to commence.

Moreover, Petitioner's written submission does not attempt to

provide any excuse for not complyin g with the pre - hearing

requirement to exchange witness lists and copies of exhibits

with Respondent at least seven days before the final hearing.

Thus, it is unclear how Petitioner intended to meet his burden

of proof even if he had appeared at the schedu led final hearing.

36. In Lesa Patterson v. Panama City Housing Auth . , Case

No. 10 - 8661 (DOAH Oct. 21, 2010), adopted in Final Order 11 - 001

(FCHR Jan. 13, 2011), the Administrative Law Judge recommended,

and the FCHR agreed, "when a Petitioner fails to ap pear at the

scheduled administrative hearing in their case, they fail to

meet their burden of proof and the Petition for Relief should be

dismissed." Final Order 11 - 001, at 2, Emphasis added. This

FCHR Final Order provides a long list of citations to cas es

applying this principle. Id.

37. So too, in this case, Petitioner failed to appear at

the scheduled administrative hearing, thus , failing to meet his

burden of proof. Moreover, Petitioner failed to demonstrate

that circumstances prevented him from ap pearing at the time and

place noticed for the final hearing or that circumstances

prevented him from contacting someone to get word to the

undersigned that he would be delayed. Everyone else involved in

the hearing process went to the time, effort, and ex pense of

preparing for and appearing at the scheduled hearing requested

by Petitioner. Petitioner's after - the - fact request to

reschedule another final hearing does not demonstrate good

cause, much less the sort of emergency required to support the

request ed extraordinary relief.

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 Petitioner, John Ziolkowski's,

Petition for Relief.

DONE AND ENT ERED this 8th day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of March , 2011 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

St atutes are to the 20 10 version.

COPIES FURNISHED :

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

200 9 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

John Ziolkowski

333 West 57th Street, Apartment 807

New York, New York 10019

James K. Parker, Esquire

Joseph G. Riopelle, Esquire

Boyd, Richards, Parker,

and Colonnelli, P.L.

400 North Ashle y Drive, Suite 1150

Tampa, Florida 33 602

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.