STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DERRICK T. WILLIAMS,

Petitioner,

vs.

PARAS LODGING, INC., d/b/a SUPER EIGHT MOTEL,

Respondent.

)

)

)

)

) Case No. 06-0188

)

)

)

)

)

)

RECOMMENDED ORDER OF DISMISSAL

A hearing was held pursuant to notice, on August 16, 2006, by telephonic communication before the Division of Administrative Hearings by its Administrative Law Judge, Barbara

J. Staros. The Administrative Law Judge was located in Tallahassee, Florida and the parties and witnesses were located

in Leesburg, Florida.

APPEARANCES

For Petitioner: Derrick T. Williams, pro se

1114 Kristen Street

Leesburg, Florida 34748

For Respondent: Stephen W. Johnson, Esquire

McLin & Burnsed

Post Office Box 491357 Leesburg, Florida 34749-1357

STATEMENT OF THE ISSUE

Whether Petitioner received notice of the March 29, 2006, Notice of Hearing that complied with the legal requirements for being provided notice.

PRELIMINARY STATEMENT

On May 16, 2005, Derrick T. Williams filed a Public Accommodation Complaint of Discrimination with the Florida Commission on Human Relations (FCHR). On December 8, 2005, FCHR issued an Amended Determination: Cause and an Amended Notice of Determination: Cause. Petitioner filed a Petition for Relief on December 29, 2005.

FCHR transmitted the case to the Division of Administrative Hearings (Division) on or about January 18, 2006, for the purpose of conducting a formal administrative hearing. A Notice of Hearing and Order of Pre-Hearing Instructions were issued on February 14, 2006, setting the case for hearing on March 29, 2006, in Leesburg, Florida, where Petitioner resides.

The undersigned traveled from Tallahassee to Leesburg, Florida, to conduct the hearing. Petitioner was not present when the hearing commenced. The undersigned recessed the hearing to give Petitioner every opportunity to arrive. The hearing was reconvened approximately 35 minutes after the time the hearing was scheduled to begin. However, Petitioner did not appear and the hearing was adjourned.

On March 30, 2006, the undersigned issued an Order Closing File, relinquishing jurisdiction to FCHR. On May 24, 2006, FCHR issued an Order Remanding Petition for Relief From an Unlawful Employment Practice. The reason for the remand was that the Notice of Hearing issued by the Division on February 14, 2006, lists a street address for Petitioner of 114 Kristin Street, Apartment 3, Leesburg, Florida 34748. This address was used because it is the address furnished by FCHR to the Division. In its Order Remanding Petition, FCHR noted that its file reflects an address for Petitioner of 1114 Kristen Street, Apartment 3, Leesburg, Florida. The Commission remanded the case to the Division for further proceedings to determine whether Petitioner received notice of the March 29, 2006, hearing that complied with the legal requirements for being provided notice and, if Petitioner did not, for further proceedings on the Petition for Relief.

Accordingly, the Division's case file was reopened. The undersigned issued an Order dated June 20, 2006, requiring the parties to provide mutually agreeable dates on which to conduct a hearing for the purpose of determining whether Petitioner received notice of the March 29, 2006, hearing.

A Notice of Hearing was issued on July 11, 2006, setting a hearing date of August 16, 2006. The hearing was conducted telephonically.

At hearing, Petitioner testified on his own behalf.

Respondent presented the testimony of Michelle Girard-Smith. The hearing was not transcribed. Official Recognition was taken of the Notice of Hearing scheduling the final hearing for

March 29, 2006.

On August 24, 2006, Petitioner filed a post-hearing written submission and on August 28, 2006, Respondent filed a Proposed Recommended Order. Both submissions have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Notice of Hearing which scheduled the hearing for March 29, 2006, was issued on February 14, 2006.

2. There is nothing on the docket that indicates that the Notice of Hearing mailed to Petitioner was returned as undeliverable.1/

3. Michelle Girard-Smith is employed as a receptionist at McLin & Burnsed, P.A., located at 1000 West Main Street, Leesburg, Florida. This is the address on the Notice of Hearing which set the hearing for March 29, 2006.

4. According to Ms. Girard-Smith, Petitioner came to the hearing location on Wednesday, March 22, 2006, one week earlier than the scheduled date for the hearing. Petitioner had the Notice of Hearing in his hand and showed it to Ms. Girard-Smith. She pulled out the conference room calendar and noted that the

   calendar showed the conference room was scheduled for the hearing on Wednesday, March 29. She pointed out to Petitioner that he was there a week early.

5. While Petitioner acknowledges that he arrived at the hearing location on a date earlier than the scheduled day, he asserts that he arrived on Friday, March 24, 2006. He also asserts that he went back to the hearing location one week later on Friday, March 31, 2006.

6. The undersigned finds the testimony of Ms. Girard-Smith to be more persuasive. She was certain that Petitioner had the Notice of Hearing in his hand when he arrived on March 22, 2006, and that she showed him that he was one week early.

7. Petitioner received actual notice of the March 29, 2006, hearing.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. §§ 120.569, 120.57, and 760.11, Fla. Stat.; Order Remanding Petition for Relief From an Unlawful Public Accommodation Practice, FCHR Order No. 06-044, May 24, 2006.

9. As a matter of law, the use of mailed notice meets state and federal due process requirements. Shelley v.

   Department of Financial Services, 846 So. 2d 577 (Fla. 1st DCA 2003.) The Notice of Hearing was mailed to Petitioner at an

   address with one digit missing: 114 Kristen Street rather than 1114 Kristen Street. The envelope was not returned to the Division as undeliverable.

10. Further, an evidentiary hearing took place to determine whether Petitioner did receive notice of the March 29, 2006, hearing. The preponderance of the evidence establishes that Petitioner did receive notice of the March 29, 2006, hearing that complied with the legal requirements for being provided notice.

RECOMMENDATION

Based upon the foregoing Findings of Fact and the Conclusions of Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Public Accommodation Discrimination.

DONE AND ENTERED this 18th day of September, 2006, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 18th day of September, 2006.

ENDNOTE

1/ If a piece of mail is returned to the Division with any indication that it was not delivered as addressed, it is posted on the docket for that particular case. The case docket does reflect that an envelope addressed to Respondent's counsel,

Mr. Johnson, was returned. Mr. Johnson appeared at the March 29, 2006, hearing as scheduled.

COPIES FURNISHED:

Derrick T. Williams

1114 Kristen Street, Apartment 3

Leesburg, Florida 34749-1357

Stephen W. Johnson, Esquire McLin & Burnsed

Post Office Box 491357 Leesburg, Florida 34749-1357

Cecil Howard, General Counsel 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 1000

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: 06-000188

Orders for Case No: 06-000188