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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-026

FCHR Order No. 09-026

Date of Release: 03/17/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

DOROTHY BAKER

 

Petitioner

 

v.

FCHR Case No. 2008-01834

   

MAYCOM COMMUNICATIONS / SPRINT-NEXTEL

DOAH Case No. 08-5809

Respondent

FCHR Order No. 09-026

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL PUBLIC ACCOMMODATIONS PRACTICE

Preliminary Matters

Petitioner Dorothy Baker filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 509.092 and 760.01 - 760.11, Florida Statutes (2007), alleging that Respondents Maycom Communications / Sprint-Nextel committed an unlawful public accommodations practice on the basis of Petitioner’s race (African-American) in the manner in which Petitioner was treated at Respondents’ store in Palm Coast, Florida.

The Commission determined that it lacked jurisdiction of the matter because the store where the alleged unlawful practice occurred was not a “public accommodation” within the meaning of the Florida Civil Rights Act of 1992.

Petitioner filed a Petition for Relief and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

Administrative Law Judge T. Kent Wetherell, II, was assigned to the case.

Judge Wetherell issued a Recommended Order of Dismissal, dated December 22, 2008, concluding that the Commission did not have jurisdiction of the matter because no facts were alleged that, if proven, would establish that the store in question was a “public accommodation” within the meaning of the Florida Civil Rights Act of 1992.

Pursuant to notice, public deliberations were held on March 12, 2009, by means of Communications Media Technology (namely, telephone) before this panel of Commissioners. The public access point for these telephonic deliberations was the Office of the Florida Commission on Human Relations, 2009 Apalachee Parkway, Suite 200, Tallahassee, Florida, 32301. At these deliberations, the Commission panel determined the action to be taken on the Recommended Order of Dismissal.

FCHR Order No. 09-026

Page 2

Findings of Fact

The matter was before the Administrative Law Judge based upon Petitioner’s response to an Order to Show Cause, issued in the case on December 16, 2008.

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 adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order of Dismissal in a letter to the Clerk of the Commission, received by the Commission on January 7, 2009, and received by the Division of Administrative Hearings on January 5, 2009.

The exceptions document excepts that the Recommended Order of Dismissal does not address the “unfair business portion” of Petitioner’s complaint; excepts to the Administrative Law Judge’s finding that Petitioner referred to Respondent as a “phone store;” excepts to the Administrative Law Judge’s recommendation to the Commission that it dismiss the Petition for Relief with prejudice; and excepts that the Recommended Order does not address the “Notes” section of Petitioner’s response to the Order to Show Cause.

The Commission does not have jurisdiction over complaints of “unfair business” practices. Even if Petitioner never referred to Respondent as a “phone store,” this does not change the Administrative Law Judge’s conclusion that no facts as alleged, if proved, would make the Respondent fall into the definition of a “public accommodation.” The Administrative Law Judge’s reasoning behind recommending the dismissal of the case “with prejudice” is adequately explained at Recommended Order, ¶ 28 through ¶ 30. There is no requirement that the Recommended Order of Dismissal comment on all aspects of a response to an Order to Show Cause.

Petitioner’s exceptions are rejected.

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

FCHR Order No. 09-026

Page 3

to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 16th day of March , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Patty Ball Thomas

Filed this 16th day of March , 2009,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Dorothy Baker

Post Office Box 350477

Palm Coast, FL 32135-0477

Maycom Communications / Sprint-Nextel

c/o George D.E. Burden, Esq.

Ross & Burden, P.A.

642 N. Halifax Avenue

Daytona Beach, FL 32118

T. Kent Wetherell, II, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 09-026

Page 4

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 16th day of March , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations