STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN L. BRUNETTE,

Petitioner,

vs.

GRAND COURT TAVARES,

Respondent.

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) Case No. 10-10490

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RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, an administrative hearing in the above- captioned matter was convened on March 30, 2011, in Tavares, Florida, before Lawrence P. Stevenson, a duly-appointed Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Jack Leebron, Esquire

Grand Court Tavares

111 Westwood Place, Suite 200 Brentwood, Tennessee 37027

STATEMENT OF THE ISSUE

The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.

PRELIMINARY STATEMENT

On December 2, 2010, Petitioner, Ann L. Brunette, filed a Petition for Relief with the Florida Commission on Human Relations (FCHR). The petition alleged that Respondent, Grand Court Tavares, had committed unlawful employment practices against Ms. Brunette. FCHR referred the case to the Division of Administrative Hearings on December 6, 2010, and the case was set for hearing on March 30 and 31, 2011. Neither party requested a continuance of the scheduled hearing.

On March 23, 2011, Petitioner filed a letter stating that she would be unable to attend the hearing on March 30, 2011, for unexplained medical reasons. Petitioner included a brief note from an osteopathic physician in Clermont stating that Petitioner had "several medical issues keeping her house bound," though Petitioner's own letter stated that she had just returned to Florida from Louisiana, where she had knee surgery.

Petitioner's letter pointedly failed to request a continuance of the hearing; rather, Petitioner urged this tribunal to proceed with the hearing based upon notarized statements that Petitioner had filed. Petitioner further urged this tribunal, in effect, to conduct an independent investigation of Respondent's alleged history of discriminatory practices.

On March 28, 2011, the undersigned directed his legal assistant to contact Petitioner in order to inform her that no

formal hearing could take place in her absence, that her case would be dismissed if she failed to appear, and that she should file a motion for continuance if she desired a delay in the pending proceedings. Given the short time before the scheduled start of the hearing, and the fact that Respondent's counsel and one witness were flying in from other states, the undersigned further directed his legal assistant to suggest that Petitioner contact Respondent and attempt to obtain Respondent's agreement to any proposed continuance of the hearing.

After several attempts, the undersigned's legal assistant was able to contact Petitioner by telephone and to relay the undersigned's concerns and suggestions to her, but was unable to report with confidence that Petitioner fully understood the need to move for a continuance or the consequences of her failure to appear at the hearing.

On March 29, 2011, Petitioner filed another letter. In this letter, Petitioner stated that she "could" ask for a continuance, but pointedly declined to do so. Petitioner again stated her intent to rely on the written information she had sent to this tribunal.

FINDINGS OF FACT

1. The Notice of Hearing in this case was issued on January 12, 2011, setting the hearing for March 30 and 31, 2011,

   
   

   in Tavares, Florida. The hearing was scheduled to commence at 9:00 a.m. on March 30, 2011.

2. Also on January 12, 2011, an Order of Pre-hearing Instructions was entered.

3. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner.

4. On March 23, 2011, Petitioner filed a letter at the Division of Administrative Hearings stating that she would be unable to attend the hearing on March 30, 2011, for unexplained medical reasons. This letter indicated that Petitioner was aware of the scheduled hearing dates.

5. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent.

6. On March 29, 2011, Petitioner filed a second letter at the Division of Administrative Hearings that declined to request a continuance of the hearing and proposed that the hearing proceed based on hearsay documents that Petitioner had previously filed at the Division of Administrative Hearings.

7. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent.

   
   

8. At 9:00 a.m. on March 30, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear.

9. The hearing was called to order at 9:15 a.m. Counsel for Respondent entered his appearance and requested the entry of a recommended order of dismissal.

10. As noted above, Respondent had received no notice that Petitioner did not intend to appear at the hearing or that continuance was under consideration. Respondent's counsel had flown to Florida from Tennessee to appear at the hearing. One of Respondent's witnesses was a former employee whom Respondent had flown to Florida from Wisconsin at Respondent's expense. Respondent vigorously opposed any continuance of the scheduled proceeding.

1. The undersigned declined on the record to continue the hearing. The hearing was then adjourned.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat. (2010).

   
   

3. Petitioner has the burden of proving the allegations in her petition by a preponderance of the evidence. See

§ 120.57(1)(j), Fla. Stat. (2010).

11. Petitioner failed to appear at the hearing or to properly file and serve a request to continue the hearing. Respondent and its witnesses were present and prepared to go forward on the merits of the case.

1. There is no indication that Petitioner failed to receive notice of the hearing. To the contrary, Petitioner's filing of March 23, 2011, indicated that Petitioner knew the scheduled dates and times of the hearing.

2. By virtue of Petitioner's failure to appear, it is concluded that Petitioner no longer contests FCHR's "no cause" determination in this case. Thus, a disputed issue of fact no longer exists in this case.

3. Petitioner has failed to meet her burden of proof to establish her claim that Respondent engaged in unlawful employment practices.

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 in this case.

DONE AND ENTERED this 4th day of April, 2011, in Tallahassee, Leon County, Florida.

S

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 4th day of April, 2011.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jack Leebron

Grand Court Tavares

111 Westwood Place, Suite 200 Brentwood, Tennessee 37027

Ann L. Brunette Post Office Box 304

Fruitland Park, Florida 34731

Larry Kranert, 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: 10-010490

Orders for Case No: 10-010490