STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD W. KOERNER, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

Case No. 04-2139

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion to Dismiss at the hearing held on August 19, 2004, before Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings, in Naples, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Mary Linville Atkins, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

The issue is whether Petitioner's Petition for Relief should be dismissed as untimely pursuant to Subsection 760.11(7), Florida Statutes (2003).

PRELIMINARY STATEMENT

On June 14, 2004, Petitioner Edward W. Koerner ("Petitioner") filed a Petition for Relief with the Florida Commission on Human Relations ("FCHR"). The Petition alleged that Respondent Department of Juvenile Justice ("Respondent") discriminated against Petitioner based on his age in violation of Subsection 760.10(1), Florida Statutes (2003).

FCHR referred the case to the Division of Administrative Hearings on June 16, 2004. The case was set for hearing in Naples, Florida, on August 19, 2004. Notice of the hearing was mailed to the parties on July 8, 2004.

On August 11, 2004, Respondent filed a Motion to Dismiss alleging that the Petition for Relief was untimely and, therefore, barred pursuant to Subsection 760.11(7), Florida Statutes (2003). Specifically, the motion alleged that the Petition for Relief was filed six days after the expiration of the 35-day period set forth in Subsection 760.11(7), Florida Statutes (2003).

Because the Motion to Dismiss was filed only seven days prior to the final hearing, there was not sufficient time for Petitioner to serve a written response by mail. Thus, the undersigned informed the parties that the Motion to Dismiss would be heard at the outset of the final hearing and that

Petitioner would be allowed to file any written pleadings with the undersigned on the morning of the final hearing.

The final hearing was convened, as scheduled, at 9 a.m. on August 19, 2004. Counsel for Respondent was present.

Petitioner did not come to the hearing. The undersigned waited until 9:25 a.m. to provide Petitioner every reasonable opportunity to arrive or to contact the hearing location with an explanation for his tardiness. Petitioner never arrived and never contacted the Division of Administrative Hearings to explain his absence from the properly-noticed hearing.

FINDINGS OF FACT

1. Petitioner filed a Charge of Discrimination with FCHR on February 20, 2004. Petitioner alleged that Respondent discriminated against him based on his age when it failed to hire him for a position with the agency.

2. Finding no reasonable cause to believe that Respondent had committed an unlawful employment practice, FCHR issued a Determination: No Cause on May 4, 2004. On the same date, FCHR issued a Notice of Determination: No Cause advising Petitioner that he had 35 days from the date of the notice in which to request an administrative hearing. The notice clearly stated that Petitioner's claim would be dismissed pursuant to Section 760.11, Florida Statutes (2003), if he failed to request a hearing in a timely manner. The 35th day was June 8, 2004.

3. FCHR received the Petition for Relief on June 14, 2004, six days after expiration of the 35-day period.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has authority to determine whether it has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat. (2003).

5. Subsection 760.11(7), Florida Statutes (2003), states as follows, in relevant part:

   (7) If the commission determines that there is not reasonable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, the commission shall dismiss the complaint. The aggrieved person may request an administrative hearing under ss. 120.569 and 120.57, but any such request must be made within 35 days of the date of determination of reasonable cause and any such hearing shall be heard by an administrative law judge and not by the commission or a commissioner. If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.

   
   

6. Florida Administrative Code Rule 60Y-3.001 provides the following relevant definitions:

   (4) "Complaint" means a written statement which alleges the occurrence of an unlawful employment practice, and includes an amended complaint.

   
   

   * * *

   
   

   (22) "Petition" means a writing, other than a written motion, filed with the

   Commission pursuant to rule of the Commission asking that specified action be taken by the Commission or a Panel.

   
   

   * * *

   
   

   (29) "Date of filing" means a completed complaint is received by the Commission prior to 5:00 p.m. (Eastern time) as provided by Rule 28-106.104, F.A.C.

   
   

7. As to complaints, Florida Administrative Code Rule 60Y-5.001 states as follows, in relevant part:

   1. Time for filing. A complaint may be filed at anytime within 365 days of the occurrence of the alleged unlawful employment practice. . . .

      
      

   2. Place and Date of Filing. A complaint may be filed at the office of the Commission. The date of filing shall be the date of actual receipt of the complaint by the Clerk or other agent of the Commission. Any document received by the Clerk or other agent of the Commission after 5:00 p.m. (Eastern time) shall be filed as of

   8:00 a.m. on the next regular business day.

   
   

8. A complaint may be administratively dismissed pursuant to Florida Administrative Code Rule 60Y-5.006, which states as follows, in pertinent part:

   The Executive Director, on behalf of the Commission, shall dismiss a complaint upon one or more of the following grounds:

   
   

   * * *

   
   

   1. The complaint has not been timely filed with the Commission;

      
      

   2. After service of Notice of Determination of Reasonable Cause, No

   Reasonable Cause, or No Jurisdiction, the complainant has failed to file a Petition for Relief pursuant to Rule 60Y-5.008, F.A.C.

   * * *

   
   

   (10) There is no jurisdiction over the respondent or subject matter of the complaint.

   
   

9. Regarding a Petition for Relief from an Unlawful Employment Practice, Florida Administrative Code Rule 60Y-5.008 states as follows, in relevant part:

   1. Petition. A complainant may file a Petition for Relief from an Unlawful Employment Practice within 35 days of the Date of Determination of Reasonable Cause, No Reasonable Cause, No Jurisdiction or Untimeliness. . . .

      
      

   2. For good cause shown, the Chairperson may grant an extension of time to file the Petition for Relief from an Unlawful Employment Practice, provided the motion for extension of time is filed within the 35-day period prescribed by subsection 60Y- 5.008(1), F.A.C.

      
      

   3. Procedures. Petitions for Relief, and proceedings thereupon, are governed by the provision of Chapters 28-106 and 60Y-4, F.A.C., except as otherwise provided by this section.

      
      

10. Florida Administrative Code Rule 28-106.103 states as follows, in pertinent part:

    In computing any period of time allowed by this chapter, by order of a presiding officer, or by any applicable statute, the day of the act from which the period of time begins to run shall not be included. . . .

    No additional time shall be added if service

    is made by hand, facsimile telephone transmission, or other electronic transmission or when the period of time begins pursuant to a type of notice described in Rule 28-106.111, F.A.C.

    
    

11. Florida Administrative Code Rule 28-106.104 states as follows, in relevant part:

    1. In construing these rules or any order of a presiding officer, filing shall mean received by the office of the agency clerk during normal business hours or by the presiding officer during the course of a hearing.

       
       

       * * *

       
       

       (3) Any document received by the office of the agency clerk after 5:00 p.m. shall be filed as of 8:00 a.m. on the next regular business day.

       
       

       * * *

       
       

       (9) The filing date for an electronically transmitted document shall be the date the agency clerk receives the complete document.

       
       

12. In this case, Petitioner did not file a timely Petition for Relief. Pursuant to Subsection 760.11(7), Florida Statutes (2003), and the provision of the Florida Administrative Code referenced above, Petitioner's claim is barred because it

was not timely filed.

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 Relief.

DONE AND ORDERED this 26th day of August, 2004, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 26th day of August, 2004.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Edward W. Koerner

81 Emerald Woods Drive, M-11 Naples, Florida 34108

Mary Linville Atkins, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Docket for Case No: 04-002139

Orders for Case No: 04-002139