Karla Pacheco v. Waldo Acebo, M.D., P.A., etc.

• Court: District Court of Appeal of Florida
• Decided: August 7, 2024
• Docket: 2023-2172
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 7, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-2172 Lower Tribunal No. 23-18997 ________________

Karla Pacheco, Appellant,

vs.

Waldo Acebo, M.D., P.A., etc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.

Gallup Auerbach and Dana M. Gallup (Hollywood), for appellant.

SMM Law, P.A., and Suhaill M. Morales, for appellee.

Before EMAS, GORDO and LOBREE, JJ.

GORDO, J. Karla Pacheco ("Pacheco") appeals a final order entered in favor of

Waldo Acebo, M.D., P.A. (“Acebo”). We have jurisdiction. Fla. R. App. P.

9.030(b)(1)(A). Finding no error in the trial court’s order, we affirm.

Pacheco filed a discrimination complaint with the Miami-Dade

Commission on Human Rights (the “Commission”), alleging sexual

harassment by her employer, Acebo. After investigation, the Commission

issued a no-probable-cause determination with a right to appeal within fifteen

days, or the decision would become final and enforceable in circuit court. 1

Pacheco did not appeal and later filed a lawsuit against Acebo. Acebo

moved to dismiss for failure to exhaust her administrative remedies. After

hearing, the trial court granted Acebo’s motion and dismissed Pacheco’s

complaint with prejudice.

“A trial court's order granting a motion to dismiss is reviewed de novo.”

Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So. 3d 1081, 1089

(Fla. 3d DCA 2014).

1 Chapter 11A-28 of the Miami-Dade County Code of Ordinances required Pacheco to file an appeal or request a hearing within fifteen days of the Commission’s recommended order. See Miami-Dade County, Fla., Code of Ordinances, ch. 11A, art. IV, § 28(7)(c) (“The [Commission’s] recommended order shall become final fifteen (15) days after issuance, unless a hearing is requested pursuant to Section 11A-28(9).”).

2 On appeal, Pacheco argues the trial court erred in dismissing her

complaint with prejudice for failure to exhaust administrative remedies.

Because the unambiguous and plain language of section 11A-28(7)(c) of the

Miami-Dade County Code explicitly required Pacheco to file an appeal or

request a hearing before resorting to the court for relief, we find the trial court

properly dismissed Pacheco’s complaint with prejudice for failure to exhaust

her administrative remedies. See Martinez v. Hernandez, 227 So. 3d 1257,

1259 (Fla. 3d DCA 2017) (“When the language of the statute [or local

ordinance] is clear and unambiguous and conveys a clear and definite

meaning, there is no occasion for resorting to the rules of statutory

interpretation and construction; the statute [or ordinance] must be given its

plain and obvious meaning.” (quoting GTC, Inc. v. Edgar, 967 So. 2d 781,

785 (Fla. 2007))); Wood v. Twin Lakes Mobile Homes Vill., Inc., 123 So. 2d

738, 740 (Fla. 2d DCA 1960) (“It is well settled that a party aggrieved by the

application of a statute or ordinance must invoke and exhaust the

administrative remedies provided thereby before he may resort to the courts

for relief.”); Robinson v. Dep’t of Health, 89 So. 3d 1079, 1083 (Fla. 1st DCA

2012) (“[W]e are not at liberty to judicially engraft into the Act an avenue for

Appellant to pursue her [claim] other than those provided under the Act.

Because Appellant failed to appeal the dismissal, she did not exhaust her

3 administrative remedies. As a result, the circuit court correctly ruled that her

claim . . . is barred.”) (citation omitted).

Pacheco further argues the Commission violated her due process

rights. Because the Commission’s recommended order granted Pacheco

the right to appeal and request a hearing, we find no due process violation.

See Thomas v. Cromer, 276 So. 3d 69, 72 (Fla. 3d DCA 2019) (“A trial court

‘provides due process if the complaining party was given notice and an

opportunity to be heard.’” (quoting Nationstar Mortg., LLC v. Weiler, 227 So.

3d 181, 183 (Fla. 2d DCA 2017))); Tauber v. State Bd. of Osteopathic Med.

Exam’rs, 362 So. 2d 90, 92 (Fla. 4th DCA 1978) (holding that “due process

requirements are satisfied if an opportunity for a meaningful hearing is

provided”); Reddick v. Univ. of S. Fla. Bd. of Trs., 362 So. 3d 300, 305-06

(Fla. 2d DCA 2023) (“For due process purposes, a notice is adequate if it

reasonably conveys the required information and provides a reasonable time

for parties to appear and present their positions . . . .”).

Affirmed.