STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. PHILLIPS,

Petitioner,

vs.

MARTIN STABLES SOUTH,

Respondent.

)

)

)

)

) Case No. 06-0323

)

)

)

)

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on May 9, 2006, in Ocala, Florida.

APPEARANCES

For Petitioner: John L. Phillips, pro se

Post Office Box 771011 Ocala, Florida 34477

For Respondent: David A. Glenny, Esquire

Bice Cole Law Firm, P.L.

1333 Southeast Twenty-Fifth Loop Suite 101

Ocala, Florida 34471 STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful employment practice.

PRELIMINARY STATEMENT

On July 25, 2005, Petitioner John L. Phillips

(Mr. Phillips) filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (Commission). He alleged that he was discriminated against because of his sex.

The Commission made its "Determination: No Jurisdiction (less than 15 employees)" on December 8, 2005.

Mr. Phillips filed a Petition for Relief dated January 9, 2006. It was filed with the Division of Administrative Hearings on January 25, 2006, and after one continuance, it was heard on May 9, 2006, in Ocala, Florida.

A transcript was not ordered. For the reasons set forth below, the Commission has no jurisdiction over this matter.

That being the case, the Administrative Law Judge has no jurisdiction.

References to statutes are to Florida Statutes (2005) unless otherwise noted.

FINDINGS OF FACT

1. Mr. Phillips is a person of the masculine sex. He was employed as a maintenance foreman at Respondent Martin Stables South, Inc. (Martin Stables), of Reddick, Florida, from May 19, 2005, until June 27, 2005.

2. Edmund Martin is the president of Martin Stables. He is also the only stockholder.

3. Mr. Martin is aware of the number of employees working at Martin Stables. He testified that Martin Stables had less than 15 employees during the period May 19, 2005 to June 27, 2005. Moreover, he testified that Martin Stables never employed

   15 or more employees in the current year, or in the year preceding May 19, 2005. He further stated that Martin Stables had never employed as many as 15 employees at any given time.

4. Mr. Phillips provided no evidence contradicting this assertion.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings is without jurisdiction in this matter, except to the extent the Administrative Law Judge is empowered to determine the presence or absence of jurisdiction.

6. Section 760.10(7), Florida Statutes, provides that "Employer" means "any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person." If an entity is not an employer as defined in Section 760.10(7), Florida Statutes, the Commission is without jurisdiction. See Regency Towers Owners Association, Inc. v. Pettigrew, 436 So. 2d 266 (Fla. 1st DCA 1983).

7. It is found as a fact that neither the Administrative Law Judge nor the Commission has jurisdiction over this matter.

RECOMMENDATION

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

is

RECOMMENDED that the Commission on Human Relations dismiss

the Petition.

DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 11th day of May, 2006.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

John L. Phillips

Post Office Box 771011 Ocala, Florida 34477

David A. Glenny, Esquire Bice Cole Law Firm, P.L.

1333 Southeast Twenty-Fifth Loop Suite 101

Ocala, Florida 34471

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: 06-000323

Orders for Case No: 06-000323