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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-079

FCHR Order No. 09-079

Date of Release: 09/09/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

KATHLEEN SULLIVAN

EEOC Case No. 15D200800786

Petitioner

 

v.

FCHR Case No. 2008-02165

   

CLAY COUNTY BOARD OF COMMISSIONERS

DOAH Case No. 09-0033

Respondent

FCHR Order No. 09-079

   

ORDER FINDING VOID “AMENDED SUMMARY FINAL ORDER”;

DESIGNATING “AMENDED SUMMARY FINAL ORDER”

AS A “RECOMMENDED ORDER”;

AND SETTING TIME FRAMES FOR THE FILING OF EXCEPTIONS

AND THE CREATION OF THE RECORD BEFORE THE COMMISSION

This matter is before the Commission sua sponte.

Preliminary Matters

Petitioner Kathleen Sullivan filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2007), alleging that Respondent Clay County Board of Commissioners committed unlawful employment practices on the basis of Petitioner’s disability by denying Petitioner a reasonable accommodation and by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on December 3, 2008, the Executive Director issued his determination finding that there was no reasonable cause to believe that an unlawful employment practice had occurred.

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

The parties filed a joint motion for summary hearing, pursuant to Section 120.574, Florida Statutes (2007), which was granted by Administrative Law Judge Suzanne F. Hood.

An evidentiary hearing was held in Green Cove Springs, Florida, on March 4, 2009, before Judge Hood.

Pursuant to Section 120.574, Florida Statutes (2007), Judge Hood issued an Amended Summary Final Order, dated June 12, 2009, dismissing the Petition for Relief with prejudice, and setting out the right of the parties to appeal the order to a District Court of Appeal.

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Amended Summary Final Order.

FCHR Order No. 09-079

Page 2

Findings of Fact and Conclusions of Law

We conclude that Section 120.574, Florida Statutes (2007), providing for “Summary Hearings” does not apply to cases brought pursuant to the Florida Civil Rights Act of 1992, Section 760.01 - 760.11, Florida Statutes (2007), and that, therefore, the Amended Summary Final Order issued by the Administrative Law Judge in this matter is void as a “final order,” but instead is appropriate to serve as the Recommended Order in this matter under the Florida Civil Rights Act of 1992.

The process to be utilized in cases brought pursuant to the Florida Civil Rights Act of 1992 is well established. Once an administrative hearing is elected from a “cause” or “no cause” determination, the Election of Rights executed by the Complainant is transmitted by the Commission to the Division of Administrative Hearings. See Section 760.11(3) and (7), Florida Statutes (2007). Neither determination constitutes “final agency action.” Section 760.11(13), Florida Statutes (2007). Pursuant to the provisions of the Florida Civil Rights Act of 1992, the Division of Administrative Hearings then holds an administrative hearing under Section 120.569 [decisions which affect substantial interests] or under Section 120.57 [additional procedures for particular cases]. See specifically, Section 760.11(4), (6), and (7), Florida Statutes (2007).

There is no statement in the Florida Civil Rights Act of 1992 authorizing the use of the statutory section utilized by the Administrative Law Judge in this matter to conduct a “summary hearing,” i.e., Section 120.574, Florida Statutes (2007), which, as applied by the Administrative Law Judge, bypasses the Commission’s ability to review a Recommended Order issued in the case and take “final agency action.”

It follows then, that the provisions and statutory requirements limiting the involvement of the Division of Administrative Hearings in cases brought pursuant to the Florida Civil Rights Act of 1992 to the two statutory sections that were placed in the Florida Civil Rights Act of 1992, namely Sections 120.569 and 120.57, Florida Statutes, was done so purposefully by the legislature to restrict the provisions that will apply to such proceedings.

It is a cardinal rule of statutory interpretation that readings of a law that render parts of it meaningless are to be avoided, and all parts of a law have to be read to achieve a consistent whole. Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452 (Fla. 1992). Another tenet of interpreting law is “expression unius est exclusion alterius,” or the mention of one thing implies the exclusion of another. 1974 Fla. AG Lexis 89; Op. Att’y. Gen. Fla. 1974-133 (1974).

Applied to the instant case, the mandate of the Florida Civil Rights Act of 1992 is that only two sections of the Administrative Procedure Act apply to proceedings at the Division of Administrative Hearings brought pursuant to it, namely Sections 120.569 and 120.57, Florida Statutes. The section upon which the Administrative Law Judge relied to reach the conclusion that direct appeal of the order issued by the Administrative Law Judge to a District Court of Appeal is appropriate is in contravention of the Florida Civil Rights Act of 1992.

FCHR Order No. 09-079

Page 3

It is a commonplace axiom that the specific will always govern the general where the interpretation of statutes is concerned. Morales v. Trans World Airlines, 504 U.S. 374 (1992); Florida Board of Trustees of the Internal Improvement Fund v. Day Cruise Association, 794 So. 2d 696 (Fla. 1st DCA 2001). The Florida Civil Rights Act of 1992 is specific as to the remedies afforded a Complainant in either “cause” or “no cause” cases heard by the Division of Administrative Hearings. A proposed Recommended Order is to be provided the Commission for its review and final action and the issuance of its own determination which will accept, reject or modify the Administrative Law Judge’s Recommended Order.

Commission Mandate

It is hereby ORDERED that the Amended Summary Final Order is VOID as a “final order,” but instead is deemed to be the Recommended Order issued in this matter.

The parties shall have 15 days from the date of this order to file with the Commission exceptions to the “Amended Summary Final Order,” now deemed the Recommended Order.

A review of the record of this matter indicates that a transcript of the proceeding before the Administrative Law Judge was created, and that exhibits were admitted into evidence by both parties before the Administrative Law Judge. These items are not currently before the Commission. The parties shall have 15 days from the date of this order to file with the Commission the admitted exhibits and transcript of the proceeding before the Administrative Law Judge. The Commission will then proceed to take final agency action on the matter based on the record as it exists before it upon the expiration of the legally allotted time to file exceptions and responses to exceptions.

DONE AND ORDERED this 9th day of September , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Commission Chair and Panel Chairperson;

Commissioner Gilbert M. Singer, Commission Vice Chair; and

Commissioner Mario M. Valle

Filed this 9th day of September , 2009,

in Tallahassee, Florida.

FCHR Order No. 09-079

Page 4

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Kathleen Sullivan

c/o Gaither L. Saunders, Jr., Qual. Rep.

1640B Vineland Circle

Fleming Island, FL 32003

Clay County Board of Commissioners

c/o Margaret P. Zabijaka, Esq.

c/o Lori K. Mans, Esq.

Constangy, Brooks & Smith, LLP

200 West Forsyth Street, Suite 1700

Jacksonville, FL 32202

Suzanne F. Hood, Administrative Law Judge, DOAH

Lawrence Kranert, FCHR Chief Legal Counsel and Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 9th day of September , 2009.

By:

Clerk of the Commission

Florida Commission on Human Relations