STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was convened in this cause on December 1, 2005, in Jacksonville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Antwoine L. Edwards, Esquire

Peter Corbin, Esquire Ford & Harrison, LLP

225 Water Street, Suite 710 Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Petitioner charged that Respondent Employer had committed an unlawful employment practice by racial discrimination.

PRELIMINARY STATEMENT

The procedural history of this case is reserved to the Findings of Fact, infra.

FINDINGS OF FACTS

1. This cause was referred to the Division of Administrative Hearings on or about February 17, 2005, following a "Determination: No Cause" by the Florida Commission on Human Relations and the filing of a timely Petition for Relief by Petitioner.

2. Final Hearing was originally noticed on March 2, 2005, for June 1, 2005.

3. Following numerous continuances requested by one or both parties or occasioned by problems arising out of service of discovery by Respondent upon Petitioner, a Notice of Hearing was issued on August 26, 2005, for December 1, 2005, in Jacksonville, Florida.

4. On November 14, 2005, an Amended Notice of Hearing, amended only as to location within the City of Jacksonville was entered and served.

5. Two days before December 1, 2005, which was the date that had been scheduled for final hearing since August 26, 2005, Petitioner telephoned the office of the undersigned to orally request a continuance. The undersigned's secretary advised him the request must be made in writing.

6. The very day before the scheduled hearing, Petitioner filed a "Motion for Extension With Cause," which was essentially a request for a continuance based on Petitioner's allegedly having been unable to obtain legal counsel and unable to engage in discovery using subpoenas. This pleading also indicated that Petitioner had received the November 14, 2005, Amended Notice of Hearing and that he was aware of the new location for the final hearing.

7. Petitioner's Motion was untimely, pursuant to Florida Administrative Code Rule 28-106.210. The record of the Division does not indicate that Petitioner ever applied for any type of subpoena and does indicate that Petitioner had many months in which to obtain an attorney.

8. Because there was no time for a written order to be entered before the final hearing date, the undersigned, through her secretary, advised Petitioner that his Motion was denied as without good cause and that he should appear for the hearing the following day.

9. At the time and place appointed, the final hearing was convened on December 1, 2005. Respondent was represented by a corporate agent, witnesses, and legal counsel, all of whom had traveled some distance to be there. After waiting 30 minutes, neither Petitioner, nor any attorney on his behalf, had appeared. The undersigned "sounded the docket" outside the

   hearing room, and Petitioner was not there, either. It was further determined that Petitioner had not telephoned the office of the undersigned to indicate any reason he could not physically attend the final hearing.

10. After 40 minutes, Respondent orally moved to dismiss.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding, in accordance with Section 120.57(1) and Chapter 760, Florida Statutes.

12. Petitioner bears the initial burden of proof and duty to go forward in this case.

13. When a petitioner fails to appear and present a case, there is no prima facie case for the respondent to defend

against. Furthermore, in this case, Petitioner's failure to appear is the equivalent of a voluntary dismissal of the Petition for Relief.

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 and Charge of Discrimination herein.

DONE AND ENTERED this 7th day of December, 2005, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 7th day of December, 2005.

COPIES FURNISHED:

Cecil Howard, Esquire

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Antwoine L. Edwards, Esquire Ford & Harrison, LLP

225 Water Street, Suite 710 Jacksonville, Florida 32202

Steven Bell

Post Office Box 2117 Interlachen, Florida 32148

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: 05-000563

Orders for Case No: 05-000563