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Home / Complaints / Final Orders / Final Orders 2013 / FCHR Order No. 13-065

FCHR Order No. 13-065

Date of Release: 10/16/2013

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

 

BRYAN SIEGEL

EEOC Case No. 15D201200677

 

Petitioner

FCHR Case No. 2012-02477

 

v.

DOAH Case No. 13-0458

 

FIREHOUSE SUBS (WILSON AND

GETTINGS INVESTMENT)

FCHR Order No. 13-065

 

Respondent

 

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Bryan Siegel filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2012), alleging that Respondent Firehouse Subs (Wilson and Gettings Investment) committed unlawful employment practices on the basis Petitioner’s religion (Jewish).

The allegations set forth in the complaint were investigated, and, on January 11, 2013, the Executive Director issued a determination finding that there was no 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 by video teleconference at sites in Orlando, Lauderdale Lakes and Tallahassee, Florida, on May 30 and June 11, 2013, before Administrative Law Judge Suzanne Van Wyk.

Judge Van Wyk issued a Recommended Order of dismissal, dated August 13, 2013.

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

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence.

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

FCHR Order No. 13-065

Page 2

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.

The Administrative Law Judge concluded, “The question of whether a respondent meets the statutory definition of an ‘employer’ is a threshold jurisdictional issue under the Act.” Recommended Order, ¶ 50. The Administrative Law Judge further noted that the only competent evidence in the record regarding the number of employees employed by Respondent indicated that Respondent’s owner testified that Respondent had no more than 13 employees at any one time while he owned Respondent. Recommended Order, ¶ 48. Noting the Act’s requirement that a Respondent need employ 15 employees to be an “employer” under the Act, the Administrative Law Judge concluded that there was not competent, substantial evidence to support that Respondent was an “employer” subject to the Act, and that, therefore, the Division of Administrative Hearings had no jurisdiction over the subject matter or the parties of this proceeding. Recommended Order, ¶ 47, ¶ 49 and ¶ 50.

We note that the Commission has concluded 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, which, in the instant case, the Administrative Law Judge appears to conclude that Petitioner failed to prove, as indicated above. See Prince v. Blanton Plumbing / Douglas Blanton, FCHR Order No. 13-007 (February 6, 2013), citing Kaplan v. Lappin and the Palm Beach Pops, Inc., 2010 U.S. Dist. LEXIS 73004 (S.D. Fla. 2010); see also Hill v. Goga Bap Corporation, d/b/a Subway Store No. 13268, FCHR Order No. 13-023 (March 11, 2013).

With this comment, 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.

FCHR Order No. 13-065

Page 3

DONE AND ORDERED this 16th day of October , 2013.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Michell Long; and

Commissioner Mario M. Valle

Filed this 16th day of October , 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:

Bryan Siegel

c/o David Siegel, Qualified Representative

10860 Northwest 80th Circle

Parkland, FL 33076

Firehouse Subs (Wilson and Gettings Investment)

c/o Michael L. Moore, Esq.

Michael L. Moore, P.A.

4767 New Broad Street

Orlando, FL 32814

Suzanne Van Wyk, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 13-065

Page 4

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 16th day of October , 2013.

By: ___________/s/_____________

Clerk of the Commission

Florida Commission on Human Relations