STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

MALVIN PRINCE, EEOC Case No. 15D201200298

Petitioner, FCHR Case No. 2012-01421

v. DOAH Case No. 12-2815

BLANTON PLUMBING / DOUGLAS FCHR Order No. 13-007 BLANTON,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Malvin Prince filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2011), alleging that Respondent Blanton Plumbing / Douglas Blanton committed an unlawful employment practice on the basis of Petitioner’s race (African American) by subjecting Petitioner to a hostile work environment.

The allegations set forth in the complaint were investigated, and, on July 2, 2012, the Executive Director issued a determination finding that there was reasonable cause to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment Practice, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held in Sarasota, Florida, on November 9, 2012, before Administrative Law Judge Elizabeth W. McArthur.

Judge McArthur issued a Recommended Order of dismissal, dated November 28,

2012.

The Commission panel designated below considered the record of this matter and

determined the action to be taken on the Recommended Order.

Findings of Fact

A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the

Filed February 6, 2013 9:17 AM Division of Administrative Hearings

Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Gantz, et al.

v. Zion’s Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. 11-048 (June 6, 2011), Mack v. Agency for Persons with Disabilities, FCHR Order No. 11-026 (March 17, 2011), Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007 (January 14, 2008), Beach-Gutierrez v. Bay Medical Center, FCHR Order No. 05-011 (January 19, 2005), and Waaser v. Streit’s Motorsports, FCHR Order No. 04-157 (November 30,

2004).

We adopt the Administrative Law Judge’s findings of fact.

Conclusions of Law

We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter.

We note that whether a Respondent has the requisite number of employees to be governed by the Florida Civil Rights Act of 1992 is not a jurisdictional issue, but rather is an element of Petitioner’s claim for relief, and further note that in the instant case, at Recommended Order, ¶ 14, the Administrative Law Judge concluded that Petitioner failed to prove this element of his claim. See Kaplan v. Lappin and the Palm Beach Pops, Inc., 2010 U.S. Dist. LEXIS 73004 (S.D. Fla. 2010).

We adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Neither of the parties filed exceptions to the Administrative Law Judge’s Recommended Order.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 6th day of February , 2013. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson; Commissioner Onelia Fajardo-Garcia; and Commissioner James Johns

Filed this 6th day of February , 2013, in Tallahassee, Florida.

/s/ Violet Crawford, Clerk

Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Malvin Prince

4428 Flatbush Avenue

Sarasota, FL 34233

Blanton Plumbing / Douglas Blanton c/o Jennifer B. Compton, Esq.

Shumaker, Loop and Kendrick, LLP

240 South Pineapple Avenue, Tenth Floor Sarasota, FL 34236

Elizabeth W. McArthur, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 6th day of February , 2013.

By: /s/ Clerk of the Commission

Florida Commission on Human Relations

Docket for Case No: 12-002815

Orders for Case No: 12-002815