STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUEL PEDRAZA, )

)

Petitioner, )

)

vs. ) Case No. 02-0238

)

INTERNATIONAL BROTHERHOOD )

LOCAL 2088, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER OF DISMISSAL

This cause came on to be heard on June 19, 2002, by telephone conference call on the Amended Motion to Dismiss filed by Respondent before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings. Petitioner filed an affidavit with attachments as a response, through counsel, to the Motion; arguments of counsel were made by telephone conference call. The arguments presented in the Motion have been fully considered. The following appearances were entered:

APPEARANCES

For Petitioner: Susan K. W. Erlenbach, Esquire

Erlenbach Law Offices, P.A. 2532 Garden Street

Titusville, Florida 32796

For Respondent: Toby Lev, Esquire

Egan, Lev, & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802

STATEMENT OF THE ISSUES

Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Section 760.11(7), Florida Statutes.

Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Florida Commission on Human Relations fails to send a copy of the Charge of Discrimination to Respondent within five days of the complaint being filed, as required by Section 760.11(1), Florida Statutes.

PRELIMINARY STATEMENT

On or about March 25, 1999, Petitioner filed with the Florida Commission on Human Relations (FCHR) a charge of discrimination against Respondent based on his age, disability and national origin. The FCHR conducted an investigation under the Florida Civil Rights Act of 1992. During the course of the investigation, Petitioner was represented by counsel.

Upon completion of its investigation, the FCHR issued its Notice of Determination: No Cause and mailed a copy to Petitioner on November 19, 2001. A copy of the Notice of Determination was not served on Petitioner's counsel of

record. Petitioner was advised that he must file a Petition for Relief within 35 days of the date of the Notice of Determination or his claim would be barred. Section 760.11(7), Florida Statutes. Petitioner filed a Petition for Relief with the FCHR on December 28, 2001. Petitioner requested a formal hearing under the provisions of Section 120.57(1), Florida Statutes. The FCHR referred this matter to the Division of Administrative Hearings on January 14, 2002, for a formal hearing. At first, Respondent was not properly notified of these proceedings. Upon notice, Respondent filed its Motion to Dismiss and Amended Motion to Dismiss the Petition for Relief on June 3, 2002, and June 12, 2002, respectively. On June 19, 2002, Petitioner filed an affidavit in response to Respondent's motions, and the motion hearing followed. Being fully advised in the premises, it is

FOUND AND DETERMINED that Petitioner had until

December 24, 2001, to timely file his petition. The Petition was not filed until December 28, 2001. Good cause for the delay has not been demonstrated by Petitioner. Therefore, the Petition for Relief is time-barred for failure to file the Petition within 35 days of the date of determination of no reasonable cause by the FCHR. Section 760.11(7), Florida Statutes (1997); Wright v. HCA Central Florida Regional Hospital, Inc., 18 FALR 1160 (1995); cf. Joshua v. City of

Gainesville, 768 So. 2d 432 (2000); St. Petersburg Motor Club v. Cook, 567 So. 2d 488 (Fla. 2nd DCA 1990); see Blakely v.

United States Automobile Ass'n, No. 99-1046-CIV-T-17F, 1999 WL 1053122, 4 (M.D. Fla. Oct. 4, 1999); Dawkins v. Bellsouth

Telecommunications, Inc., 53 F. Supp. 2d 1356, 1360-61 (M.D.

Fla. 1999).

Respondent's assertion that the FCHR's delay in notifying Respondent of the filing of the original Charge of Discrimination is jurisdictional is unsupported by case law.

Logan v. Zimmerman Brush Co., 102 S. Ct. 1148 (1982) and cf. Joshua v. City of Gainesville, supra. at 436.

RECOMMENDATION

Based on the foregoing facts and conclusions of law, it

is

RECOMMENDED that a final order be entered dismissing with

prejudice the Petition of Manuel Pedraza in DOAH Case

No. 02-0238, and FCHR Case No. 99-1636, for failure to timely file his Petition for Relief.

DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida.

___________________________________ DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2002.

COPIES FURNISHED:

Susan K. W. Erlenbach, Esquire Erlenbach Law Offices, P.A.

2532 Garden Street

Titusville, Florida 32796

Toby Lev, Esquire

Egan, Lev, & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, 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 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: 02-000238

Orders for Case No: 02-000238