11-000041 Gayle Wilburn vs. City Of Pensacola Department Of Housing Status: Closed Recommended Order on Friday, April 15, 2011.

Summary: Petitioner failed to appear at the hearing scheduled for her complaint and thus failed to produce evidence of any discriminatory conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAYLE WILBURN , )

)

Petitioner , )

)

vs. ) Case No. 1 1 - 0041

)

CITY OF PENSACOLA, DEPARTMENT )

OF HOUSING , )

)

Respondent . )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for formal hearing on March 28, 2011 , in

Pensacola , Florida, before Diane Cleavinger , Administrative Law

Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Robert E. Larkin , Esquire

Allen Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue is whether this case should be dismissed based on

Petitioner's failure to make an appearance at hearing.

PRELIMINARY STATEMENT

On or about September 28, 2010 , Pet itioner , Gayle Wilburn

(Petitioner) , filed a Petition for Relief with the Florida

Commission on Human Relations (FCHR). The petition alleged that

Respondent , City of Pensacola, Department of Housing

(Respondent) , had committed a discriminatory housing pra ctice

and a discriminatory public accommodation practice against her.

T he Florida Commission on Human R elations (FCHR) investigated

PetitionerÓs complaint. On December 14, 2010, FCHR issued a

Notice of Determination of No Cause on PetitionerÓs complaint.

Thereafter, Petitioner filed a Petition for Relief alleging that

Respondent had committed a h ousing discriminatory practice

against her.

FCHR referred the case to the Division of Administrative

Hearings on January 6, 2011 .

FINDINGS OF FACT

1. On Jan uary 7, 2011 , the undersigned issued the Initial

Order in this case.

2. Petitioner and Respondent respond ed to the Initial

Order.

3. On February 10, 2011 , the undersigned issued a Notice

of Hearing, scheduling the hearing for March 28, 2011 . The

Notice of Hearing was not returned as undeliverable to

Petitioner. Indeed, Petitioner wrote and filed several letters

regarding her upcoming hearing and case in general.

4 . On March 18, 2011, the hearing was convened as

scheduled. After waiting 15 minu tes, Petitioner did not appear

at the hearing and did not contact the undersignedÓs office

regarding any problem with commencing the hearing as scheduled.

Accordingly, no evidence to support PetitionerÓs allegations was

introduced at the hearing. Given t his lack of evidence, the

Petition for Relief should be dismissed.

CONCLUSIONS OF LAW

5 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to s ections 120.569, 120.57(1), and 760. 35,

Florida Statutes (2010).

6 . Petitioner has the burden of proving the allegations in

her petition by a preponderance of the evidence. See

§§ 760.34(5) an d 120.57(1)(j), Fla. Stat. (2010 ).

7 . Petitioner failed to appear at the hearing or provide

notice of her inability to attend the hearing. On the other

hand, Respondent and its witnesses were prepared to go forward

on the merits.

8 . There is no indication that Petitioner failed to

receive any orders, notices, or pleadings. There is no show ing

of any emergency situation that would prohibit Petitioner from

at least contacting the undersigned's office to request a

continuance.

9 . Since Petitioner did not appear at the hearing,

Petitioner has failed to meet her burden of proof to support he r

claim and the Petition for Relief should be dismissed .

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 the Petition for Re lief.

DONE AND ENT ERED this 15th day of April , 201 1 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 15th day of April , 201 1 .

COPIES FURNISHED :

Gayle Wilburn

1006 East Johnson Avenue, # 4

Pensacola, Florida 32514

Robert E. Larkin, Esquire

Allen Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 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 Ord er. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.