Petitioner, MARY TOZZO, filed a
complaint of discrimination pursuant to Florida Civil Rights Act
of 1992, Sections 760.01-760.11, Florida Statutes,
alleging that the Respondent, QUAD T RANCH, d/b/a BEACH FRONT
MOTEL, committed an unlawful public accommodation practice by
failing to accommodate her disability. The allegations set
forth in the complaint were investigated and, on July 15, 2004,
the Executive Director issued his determination that there was
no reasonable cause to believe that a discriminatory act
occurred. The Petitioner filed a Petition for Relief on August
20, 2004.
Administrative Law Judge John G. Van
Laningham issued a Recommended Order of Dismissal dated
September 15, 2004.
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 and Conclusions of
Law
The Commission’s file does not contain a
transcript of the proceeding before the Administrative Law
Judge. In the absence of a transcript of the proceeding
before the Administrative Law Judge, his Recommended Order is
the only evidence for the Commission to consider. National
Industries, Inc. vs. Commission on Human Relations, et al.,
527 So. 2d 894, at 898 (Fla. 5th DCA 1988).
The Respondent filed a Motion to Dismiss
stating that the Commission’s determination was made on July 15,
2004, and showing that the Petition for Relief was not filed
until August 20, 2004. The Petitioner responded.
Upon consideration of the record, the ALJ
issued his Order Recommending the Commission issue a Final Order
of Dismissal. The ALJ pointed out that the record reflects all
facts material to the Motion to Dismiss are admitted by both
parties. Taking the facts as admitted by the Petitioner in
their best light, the ALJ found that there were no circumstances
to support a finding of facts necessary to establish “equitable
tolling.”
In order to overcome the failure to timely
file a Petition, the Petitioner must provide creditable evidence
that the failure to file her petition was a result of equitable
circumstances that prevented a timely filing (“equitable
tolling”). “Generally, the [equitable] tolling doctrine has
been applied when the plaintiff has been misled or lulled into
inaction, has in some extraordinary way been prevented from
asserting his rights, or has timely asserted his rights
mistakenly in the wrong forum.” Machules v. Department of
Administration, 523 So.2d 1132, (Fla. 1988) at 1134. The
court also stated, at 1133, “equitable tolling, unlike estoppel,
does not require active deception or employer misconduct, but
focuses rather on the employee with a reasonably prudent regard
for his rights. However, the ALJ found that, throughout the
proceeding, the Petitioner was represented by counsel who
clearly could have assisted her in a timely fashion; thereby,
distinguishing the facts and results in this case from the facts
and results occurring in the Machules case.
It should also be noted, however, that a
series of recent cases have rejected the application of an
excusable neglect standard in overcoming the failure to file
timely a petition for an administrative hearing. See, Cann
v. DCFS, 813 So.2d 237 (Fla. 2nd DCA 2002) in
which the petitioner’s attorney delivered the request to the
post office one day prior to due date but it was not delivered
(received by the agency) until one day after the due date; also
Whiting v. FDLE, 849 So.2d 1149 (Fla. 5th DCA
2003) in which the Petitioner attempted to fax his request to
PERC on the due date but was unsuccessful and completed the fax
on the next morning; and Patz v. DOH, 864 So2d 79 (Fla. 3rd
DCA 2003) in which Respondent obtained a “default judgment”
despite a late filed request for a hearing in which the
Petitioner stated that he did “not delay for a protracted length
of time…[that the filing] was before the Department’s motion for
default, and because the Department was not prejudiced by the
untimely filing.”
We adopt the Administrative Law Judge’s
findings of fact and conclusions of law.
Exceptions
Neither party filed any
exceptions to the Recommended Order.
Dismissal
The Request 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 7th day of December, 2004.
For The Florida Commission on Human Relations.
