STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA K. FAULCONER, )

)

Petitioner, )

)

vs. ) Case No. 99-1781

) TRACOR SERVICES CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion to Dismiss by the Division of Administrative Hearings before its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Cynthia K. Faulconer, pro se

145 Wright Circle Niceville, Florida 32578

For Respondent: Edmund J. McKenna, Esquire

Ford and Harrison, LLP Suite 900

101 East Kennedy Boulevard Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issue is whether the Division of Administrative Hearings has jurisdiction over an alleged unlawful employment practice which occurred on the premises of a federal enclave.

PRELIMINARY STATEMENT

On September 9, 1998, Petitioner Cynthia K. Faulconer (Petitioner) filed a Charge of Discrimination with the Florida

Commission on Human Relations (FCHR). Petitioner alleged that Respondent Tracor Services Corporation (Respondent) had discriminated against her based on her gender and retaliated against her for filing a sexual harassment complaint.

On March 8, 1999, the FCHR's Clerk issued a Notice of Determination: No Jurisdiction and a Determination: No Jurisdiction. Petitioner filed a Petition for Relief with FCHR on March 24, 1999. FCHR referred the Petition for Relief to the Division of Administrative Hearings on April 19, 1999.

On April 29, 1999, Respondent filed an Answer to the Petition for Relief. Respondent also filed a Motion to Dismiss for lack of jurisdiction and a memorandum in support thereof.

Petitioner has not filed a response to this motion.

FINDINGS OF FACT

1. Respondent asserts that Petitioner's allegations arose during her employment at Eglin Air Force Base, Florida. Respondent also asserts that Petitioner never worked for it in Florida at a site other than Eglin Air Force Base. Petitioner's Charge of Discrimination and Petition for Relief do not refute these assertions.

2. It is uncontested that Eglin Air Force Base, Florida, is a federal enclave. The land on which the base is located was ceded by the State of Florida to the United States on April 26, 1937. At that time, the federal government was given exclusive jurisdiction over the land.

3. The cession deed was recorded on April 27, 1937, and states as follows in pertinent part:

   I Fred P. Cone, Governor of the State of Florida, in the name and by the authority of said State and pursuant to the statutes of said State in such cases made and provided, do hereby cede to the United States of America, exclusive jurisdiction over said lands so acquired.

   
   

   Secretary of State (Florida), Deeds, Book A, pages 349-352.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings does not have jurisdiction over Petitioner's claims in this case.

5. The United States Constitution confers on the federal government the power to acquire land from the states for specific uses and to exercise sole jurisdiction over the acquired land (called a federal enclave) unless the deed of cession provides to the contrary. Lord v. Electrical Workers' Local Union 2088, 646 F.2d 1057, 1059 (5th Cir. 1981).

6. Laws of a state adopted after "the cession of state land to the federal government are without force or effect on the ceded land." Lord, at 1060.

7. The State of Florida adopted the Florida Human Rights Act of 1977 and the Florida Civil Rights Act of 1992 after it ceded the property on which Eglin Air Force Base is located to the federal government. Therefore, neither the Division of Administrative Hearings nor the FCHR have jurisdiction over employment decisions which are made at Eglin Air Force Base.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That FCHR enter a final order determining that the Division of Administrative Hearings does not have jurisdiction over the issues raised in the instant Petition for Relief and dismissing said petition with prejudice.

DONE AND ENTERED this 13th day of May, 1999, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 13th day of May, 1999.

COPIES FURNISHED:

Cynthia K. Faulconer

145 Wright Circle Niceville, Florida 32578

Edmund J. McKenna, Esquire Ford and Harrison, LLP Suite 900

101 East Kennedy Boulevard Tampa, Florida 33602

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

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: 99-001781

Orders for Case No: 99-001781