STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN E. SIMMONS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2349

) INVERNESS INN and CVETKO ) BLAZEVSKI, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 19, 1993, in Inverness, Florida.

APPEARANCES

For Petitioner: Kenneth S. Stepp, Esquire

305 North Apopka Avenue Inverness, Florida 34450

For Respondents: David L. Wilcox, Esquire

452 Pleasant Grove Road Inverness, Florida 34452

STATEMENT OF THE ISSUE

Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.

PRELIMINARY STATEMENT

This cause arose on March 24, 1992, when petitioner, Carolyn E. Simmons, filed a charge of discrimination with the Florida Commission on Human Relations (Commission) alleging that respondents, Inverness Inn and Cvetko Blazevski, had violated Section 760.10, Florida Statutes, by virtue of being "harassed and subjected to racial slurs in (her) position as a cook." After the Commission conducted a preliminary investigation, its executive director issued a Determination: Cause on February 12, 1993. Thereafter, petitioner filed a petition for relief on April 23, 1993. The matter was referred by the Commission to the Division of Administrative Hearings on April 28, 1993, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated June 30, 1993, a final hearing was scheduled on October 19, 1993, in Inverness, Florida. On September 24, 1993, the case was transferred from Hearing Officer Don W. Davis to the undersiged.

At final hearing, respondents made an ore tenus motion to dismiss the petition on the ground the matter was moot and no relief could be granted.

After hearing argument of counsel, the undersigned granted the motion. Since the motion was dispositive of the case, this Recommended Order has been entered. The bases for this ruling are set forth below and memorialize the ruling made at the conclusion of the hearing.

FINDINGS OF FACT

Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined:

1. Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought.

   
   

2. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed.

   
   

3. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

5. Subsection 760.10(13), Florida Statutes, provides in pertinent part as follows:

   
   

   (13) In the event that the commission, in the case of a complaint filed under subsection (10)....finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees. Upon such notice as the commission... may require, such order, or any subsequent order upon the same complaint or action, may provide relief for all individuals aggrieved by an such employment practice. No liability for back pay shall accrue from a date more than 2 years prior to the filing of a complaint with the commission.

   Under the terms of the foregoing statute, the Commission can provide "affirmative relief" from an illegal employment practice, issue a cease and desist order against the employer, and award back pay, if appropriate, and reasonable attorney's fees.

   
   

6. In this case, petitioner does not claim that she suffered quantifiable damages, that is, damages arising from being terminated from employment, or from being denied a promotion or higher compensation because of her race. Rather, through argument of counsel she contends that she suffered pain, embarrassment, humiliation, and the like (non-quantifiable damages) because of racial slurs and epitats made by respondents. Assuming such conduct occurred, however, it is well-settled in Florida law that an administrative agency (as opposed to a court) has no authority to award money damages. See, e. g., Southern Bell Telephone & Telegraph Co. v. Mobile America Corporation, Inc., 291 So.2d 199 (Fla. 1974); State, Dept. of General Services v. Biltmore Construction Co., 413 So.2d 803 (Fla. 1st DCA 1982); Laborers International Union of N.A., Local 478

v. Burroughs, 541 So.2d 1160 (Fla. 1989). This being so, it is concluded that the Commission cannot grant the requested relief, compensatory damages. As to the other relief available under subsection 760.10(13), it is noted that the Inn is no longer in business and thus the issue of whether a cease and desist order should lie is rendered moot. Further, since petitioner was not denied a promotion or pay raise, nor was she discharged from employment, she is not entitled to back pay or other "affirmative relief." Accordingly, the motion to dismiss the petition for relief should be granted, with prejudice.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with

prejudice the petition for relief.

DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1993.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana C. Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Kenneth S. Stepp, Esquire

305 North Apopka Avenue Inverness, Florida 34450

David L. Wilcox, Esquire

452 Pleasant Grove Road Inverness, Florida 34452

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-002349

Orders for Case No: 93-002349