15-004432 Dorothy Scott vs. Sunshine Auto Mart Status: Closed Recommended Order on Wednesday, November 4, 2015.

Summary: Petitioner did not establish that Respondent met the definition of "employer" in section 760.02 (7), Fla. Stat.; Recommend dismissal for lack of jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOROTHY SCOTT,

Petitioner,

vs. Case No. 15 - 4432

SUNSHINE AUTO MART,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held i n this case

on October 9, 2015, in Winter Haven, Florida, before

Administrative Law Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (Division).

APPEARANCES

For Petitioner: Shawn Jiles, Esquire

Jiles Law, P.A.

Post Office Box 1847

Winter Haven, Florida 33882

For Respondent: Ralph H. Schofield, Jr., Esquire

Clark, Campbell, Lancaster

and Munson, P.A.

Suite 800

500 South Florida Avenue

Lakeland, Florida 33801

STATEMENT OF THE ISSUE

Initially the issue was, w hether Respondent, Sunshine Auto

Mart, discriminated against Petitioner, Dorothy Scott, on the

basis of her disability, and, if so, what remedy should be

ordered. However, a t the beginning of the hearing, the parties

agreed that the hearing would be limited to the question of

whether Respondent met the definition of ÐemployerÑ under the

Florida Civil Ri ghts Act.

PRELIMINARY STATEMENT

On April 16, 2015, Petitioner filed a Complaint of

Discrimination (Complaint) with the Florida Commission on Human

Relations (Commission), alleging unlawful employment

discrimination by Respondent on the basis of her disabil ity.

The Commission investi gated the Complaint. On July 6 , the

Commission issued its ÐNotice of Determination: No CauseÑ and

ÐDetermination: No CauseÑ regarding the alleged discriminatory

practice. 1 /

On August 7, Petitioner timely filed a Petition for

Relief , 2 / which was forwarded to the Division for assignment of

an Administrative Law Judge. The final hearin g was set and

heard on October 9 .

Petitioner testified on her own behalf. 3 / Respondent

presented the testimony of John Connell and Linda Riggs. Joint

Exhibit 1 , PetitionerÓs Exhibit 1, and RespondentÓs Exhibits 1

through 3 were admitted into evidence.

A court reporter was present for the hearing. At the end

of the hearing, the parties were advised to submit their

proposed recommended orders (PR Os) within 10 days of the

conclusion of the hearing. RespondentÓs counsel then stated a

transcript would be order ed , and the parties were advised that

their PROs would be due ten days after the filing of the

transcript. However, on October 23, both parti es fi led their

PROs. 4 / Each PRO has been considered in the preparation of this

Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2014 codification.

FINDING S OF FACT

1. R espond ent is a used automobile dealership . John

Connell is the sole proprietor of Respondent.

2. Petitioner was hired by Respondent in 2007 . Petitioner

started working for Respondent as a secretary and later became

RespondentÓs general manager. She would work in different areas

of the deale rship , as needed, but she maintained a steady work

schedule. Petitioner received notification that her employment

was terminated on July 28, 2014.

3. Pe titioner was unable to provide competent details of

when and how long each alleged employee worked for Respondent.

Some of the alleged employe es worked a few hours each week and

could come and go as they wanted.

4. At the final hearing, Respondent presented EmployerÓs

Quarterly Federal Tax Returns for 2013 and 2014, and the Florida

Department of Revenue EmployerÓs Quarterly Reports covering 2013

and 2014. Each report shows that Respondent employed fewer than

15 employees for each quarter covered by the report. These

reports, supported by Mr. Connell and Ms. RiggsÓ testimony,

constitute competent substan tial evidence that Respondent

employed fewer than 15 full - time employees for each working day

in the 52 calendar weeks in 2013 , and in the 28 calendar weeks

in 2014, the period preceding the alleged discrimination.

Petitioner did not present any competent substantial evidence to

counter or rebut this evidence.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569, 120.57(1), and 760.11(7), Fla. Stat.

6. The Flori da Civil Rights Act of 1992 (the Act) is

codified in sections 760.01 through 760.11, Fl orida Stat utes ,

and prohibits discrimination in the workplace. When Ða Florida

statute [such as the FCRA] is modeled after a federal law on the

same subject, the Florid a statute will take on the same

constructions as placed on its federal prototype.Ñ Brand v. Fl a

Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

Therefore, the FCRA should be interpreted, where possible, to

conform to Title VII of the Civil Rights A ct of 1964, which

contains the principal federal anti - discrimination laws.

Lack of Jurisdiction under Chapter 760, Florida Statutes

7. Respondent is not an "employer" to which the Act

applies. "Employer," for purposes of the ActÓs jurisdiction,

means "an y person employing 15 or more employees for each

working day in each of 20 or more calendar weeks in the current

or preceding calendar year, and any agent of such a person."

§ 760.02(7), Fla. Stat.

8. Respondent presented unrefuted evidence establishing

that it employed fewer than 15 employees fo r each working day in

each of the 28 calendar weeks in the year in which the

discrimination complaint was made (2014), and in the 52 weeks in

the year preceding the discrimination claim (2013).

9. Under these cir cumstances, it is concluded that the

Commission lacks statutory jurisdiction under the Act to find

any employment discrimination on the part of Respondent or to

provide a remedy to Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conc lusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing PetitionerÓs Petition.

DONE AND ENTERED this 4 day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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

Div ision of Administrative Hearings

this 4 day of November , 2015 .

E NDNOTE S

1 / The July 6, 2015, ÐDetermination: No CauseÑ provided in

pertinent part, the following:

Respondent is an employer within the meaning

of the Florida Civil Rights Act of 1992, and

t he timeliness and all jurisdict ional

requirements have been met. . . .

2 / On page 2, paragraph 5, line 5, Petitioner asserts in

pertinent part, the following.

Regardless, the Petitioner contends that the

Respondent does indeed have and had more than

15 employees and is a [sic] employer under

the relevant Statute.

3 / PetitionerÓs counsel issued a self - made Subpoena to Tammy

Scott, who did not appear.

4 / RespondentÓs Notice Regarding Proposed Recommended Orders

provided notice that after the hearing, the Ðparties thereafter

agreed that transcription would not be necessary and agreed to

submission of proposed recommended orders on Friday, October 23,

2015.Ñ

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Shawn Jiles, Esquire

Jiles Law, P.A.

Post Office Box 1847

Winter Haven, Florida 33882

(eServed)

Ralph H. Schofield , Jr., Esquire

Clark, Campbell, Lancaster

and Munson, P.A.

Suite 800

500 South Florida Avenue

Lakeland, Florida 33801

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

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.