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Home / Complaints / Final Orders / Final Orders 2004 / FCHR Order No. 04-151

STATE OF FLORIDA
COMMISSION ON HUMAN RELATIONS

MARY TOZZO,                                                                    

 

            Petitioner,                                                                    

 

v.                                                                                            

 

QUAD T RANCH, d/b/a BEACH FRONT MOTEL, 

                                     

     Respondent.

                              

EEOC Case No. NONE
FCHR Case No. 2004-20779
DOAH Case No. 04-3003
FCHR Order No. 04-151

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL PUBLIC ACCOMMODATION PRACTICE

  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.

  

Commissioner Rita Craig, Panel Chairperson;                                                    Commissioner Roosevelt Paige; and

Commissioner Dominique B. Saliba, M.D.

Filed this 7th day December, 2004,
in Tallahassee, Florida.

  

  

Violet Crawford, Clerk of the
Commission on Human Relations
2009 Apalachee Parkway, Suite 100
Tallahassee, FL 32301
(850) 488-7082, Ext. 1032

Copies furnished to:

 

For Petitioner:

Matthew W. Dietz, Esquire

Law Offices of Matthew W. Dietz, P.A.

999 Ponce de Leon Blvd., Suite 735

Coral Gables, Florida 33134

 

For Respondent:

Joyce Ackerbaum Cox, Esquire

AKERMAN SENTERFITT

PO Box 231

Orlando, Florida 32802

 

Honorable John G. Van Laningham, Administrative Law Judge (DOAH)

 

Jim Tait, Legal Advisor for Commission Panel

  

Violet Crawford

Clerk of the Commission

Florida Commission on Human Relations