STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD WAGNER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1480

)

BURGER KING CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a telephone conference hearing on Respondent's Motion to Dismiss in this case on July 13, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ronald Wagner

2215 Buttercup Court

Lakeland, Florida 33801

For Respondent: James R. Wiley, Esquire

Cathleen G. Bell, Esquire Post Office Box 3239 Tampa, Florida 33601

STATEMENT OF THE ISSUES

Whether Respondent's Motion to Dismiss should be granted for failure of Petitioner to comply with reasonable discovery, and for Petitioner's failure to prosecute this matter.

FINDINGS OF FACT

1. On January 12, 1995, the Florida Commission on Human Relations (Commission) entered a Determination of No Cause with regard to a complaint filed by Petitioner, Ronald Wagner, against Respondent, Burger King Corporation, alleging unlawful employment practices.

   
   

2. On March 24, 1995, the Commission, in accordance with Rule 60Y- 4.016(1), Florida Administrative Code, and pursuant to the request of Petitioner, transmitted the matter to the Division of Administrative Hearings for formal hearing.

   
   

3. Formal Hearing in this case is presently scheduled for August 10 and 11, 1995.

4. On June 27, 1995, the Hearing Officer directed the parties to comply with certain prehearing procedures, and to file a prehearing stipulation on or before August 4, 1995.

   
   

5. Respondent on May 31, 1995, propounded written interrogatories to Petitioner, and noticed Petitioner for deposition on July 18, 1994.

   
   

6. Petitioner failed to respond to Respondent's interrogatories, failed to appear for his deposition, and, despite reasonable efforts undertaken by his counsel, failed to respond to his counsel's attempts to contact him regarding this case. Due to Petitioner's failure to comply with discovery, the parties have been unable to comply with the Hearing Officer's Order of June 27, 1995.

   
   

7. On July 10, 1995, counsel for Petitioner filed an amended Motion for Withdrawal due to Petitioner's failure to maintain contact with his counsel.

   
   

8. On July 11, 1995, Respondent filed a Motion to Dismiss for failure to comply with discovery.

   
   

9. A telephone hearing was held on July 13, 1995, on both motions. By order entered July 14, 1995, counsel for Petitioner was granted leave to withdraw, and Petitioner was directed to show cause by July 24, 1995, as to why Respondent's Motion to Dismiss should not be granted. The Order to Show Cause was mailed to Petitioner at his home address as contained in the DOAH files which was confirmed as accurate by Petitioner's counsel.

   
   

10. Petitioner has not filed any response to the Order to Show Cause.

    
    

11. Petitioner has abandoned the prosecution of this matter.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

13. Petitioner has neither complied with reasonable discovery requests, nor the orders of the DOAH. Dismissal of the Petition is appropriate under these circumstance. A Professional Nurse, Inc. v.HRS, 519 So. 2d 1061 (Fla. 1st DCA 1988).

    
    

14. Petitioner has failed to maintain contact with counsel, has not otherwise appeared in this case, and has abandoned prosecution of this matter.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

The Respondent's Motion to Dismiss be GRANTED, and the Commission enter its Final Order dismissing the Petition filed herein.

RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of July, 1995.

RICHARD HIXSON

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 July, 1995.

COPIES FURNISHED:

Ronald Wagner

2215 Buttercup Court

Lakeland, FL 33801

Joseph N. Baron, Esq. Building A

3375 U.S. Highway 98 South

Lakeland, FL 33803-8365

James R. Wiley, Esq. Cathleen G. Bell, Esq. Post Office Box 3239 Tampa, FL 33601

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana Baird, General Counsel Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their 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: 95-001480

Orders for Case No: 95-001480