STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD M. McELRATH, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0486

)

STUDEBAKER'S RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

The issue in this, case is whether Respondent, Studebaker's Restaurant (Respondent), should be held guilty of violating Chapter 99 of the City of Clearwater Code prohibiting age discrimination in public accommodations. A final hearing on the issue was held in Largo, on May 22, 1986.

APPEARANCES

For Petitioner: Miles A. Lance, Esquire

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 33518-4748

For Respondent: Leslie M. Conklin, Esquire

280 North Indian Rocks Road Belleair Bluffs, Florida 33540

FINDINGS OF FACT

1. Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older.

   
   

2. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance.

   
   

3. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age.

   
   

4. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at

   least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age.

   
   

5. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code.

   
   

6. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party.

   
   

7. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board.

   
   

8. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination.

   
   

9. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent.

   
   

10. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.

    
    

    CONCLUSIONS OF LAW

    
    

11. The jurisdiction of the Division of Administrative Hearings over cases of alleged age discrimination in public accommodations in Clearwater is conferred by Chapter 99 of the City of Clearwater Code and Section 120.65(6), Florida Statutes (1985.

12. The decision in Broward County vs. LaRosa, 484 So.2d 1374 (Fla. 4th DCA 1986), does not invalidate Chapter 99 of the City of Clearwater Code, except to the extent that it might be construed to authorize the Community Relations Board to impose a civil penalty or assess damages or, perhaps, enter a cease and desist order in this case. As will be seen, Chapter 99 of the City of Clearwater Code explicitly authorizes the Community Relations Board to "pass upon complaints." Section 99.07 of the City of Clearwater Code. Injunctive relief, if available, would be a matter reserved to a court proceeding. Section

    99.17 of the City of Clearwater Code. The penalty referred to in Section 99.18 of the City of Clearwater Code would be imposed in criminal proceedings. See Section 7B-20 of Clearwater Ordinance No. 1843.

    
    

13. Under Section 90.03 of the City of Clearwater Code, Petitioner, Ronald McElrath, as coordinator of the Office of Community Relations, serves as staff aide to the Community Relations Board. There is no specific authority in Chapter 99 of the City of Clearwater Code for McElrath to file complaints in his capacity as coordinator.

    
    

14. Section 99.08 of the City of Clearwater Code provides in pertinent part:

    
    

    "Any person alleging subjection to an unlawful discriminatory practice shall file with the Community Relations Board through the Office of Community Relations a complaint in writing, sworn to or affirmed, which shall state the name

    and address of the complainant and the person against whom the complaint is made."

    
    

    Under Section 99.09 of the City of Clearwater Code, the coordinator then is supposed to decide what investigation by the staff of the Office of Community Relations is appropriate to ascertain facts and issues. During the 60 day period allowed for investigation, Section 99.09 contemplates that the complainant and person against whom the complaint is made (not the coordinator) would attempt to settle the complaint within the 60 day period allowed for investigation. Only if the parties do not settle and the coordinator determines that there are reasonable grounds to believe an unlawful discriminatory practice had occurred and is susceptible of conciliation will the coordinator become involved in settlement negotiations as a mediator of sorts. Several other provisions of the ordinance indicate that the coordinator is not contemplated to be the person to file a complaint in his capacity as coordinator. See Section 99.09(c) and (d) and Section 99.095(2) through (7) of the City of Clearwater Code.

    
    

15. In this case, McElrath was not the person subjected to alleged unlawful age discrimination. Nor did he allege or prove that he suffered any injury as a result of another being subjected to discrimination. Contrast Metropolitan Dade County Fair Housing And Employment Appeals Board vs. Sunrise Village Mobile Home Park, Inc., 485 So.2d 865 (Fla. 3rd DCA 1986). To the contrary, he filed the complaint only in his mistaken belief that he could and should do so in his capacity as coordinator for the Community Relations Board. Finally, there is no authority in Chapter 99 of the City of Clearwater Code for McElrath, as coordinator, to file a complaint that he witnessed the subjection of another person to allegedly unlawful age discrimination. The most analogous authority conferred on the coordinator is the authority under Section 99.09(2) of the City of Clearwater Code that, upon withdrawal of the complaint, "the

    coordinator may continue action against the respondent if the facts establish probable cause and the board by a three-fourths majority vote approved such further action." Therefore, McElrath had no standing to file a complaint under Section 99.08 of the City of Clearwater Code.

    
    

16. As previously mentioned, the Community Relations Board is authorized to "pass upon complaints" under Section 99.07 of the City of Clearwater Code. Only complaints can be referred to the Division of Administrative Hearings under Sections 99.09 and 99.095 of the City of Clearwater Code. McElrath, in his capacity as coordinator, has no standing or authority to complain simply that he witnessed the subjection of another person to allegedly unlawful age discrimination. Absent authority or power under Chapter 99 of the City of Clearwater Code, the Community Relations Board has no jurisdiction or power to determine McElraths complaint. See Department of Citrus vs. Office of Comptroller, 416 So.2d 820, 822 (Fla. 2nd DCA 1982).

    
    

17. Respondent cites several procedural defects in the manner in which McElrath processed his own complaint in this case. It is not necessary to rule whether these procedural defects would be fatal if McElrath had standing and authority to file his complaint. Suffice to say that the difficulty McElrath had in complying with the procedural requirements of Chapter 99 resulted from his lack of standing and authority and further supports the conclusion that he lacks standing and authority to file a complaint.

    
    

18. Finally, Respondent also complains that McElrath and his counsel will deprive Respondent of due process by combining their roles in this proceeding with the roles they allegedly will play after this proceeding when this Recommended Order is considered by the Community Relations Board. Okaloosa/Walton Junior College vs. Florida Public Relations Commission, 372 So.2d 378 (Fla. 1st DCA 1979), Section 120.66, Florida Statutes (1985). But whether, and the extent to which McElrath and his counsel might participate in ex parte double agent activity," 372 So.2d at 390, cannot be determined at this time and will have to be determined at another time by another tribunal.

    
    

19. Finally, it should be noted that the inability of McElrath, as coordinator, to file the complaint in this case does not make him and the Community Relations Board powerless to enforce Chapter 99 of the City of Clearwater Code against Respondent absent a proper complainant. Under Section

99.07 of the City of Clearwater Code, the Community Relations Board has the power and duty "to cause, through the office of community relations, investigations into alleged unlawful discrimination. If discovered unlawful discrimination does not cease or otherwise become satisfactorily resolved, the Community Relations Board presumably can refer the matter to the appropriate prosecuting authorities for criminal trial and imposition of a penalty under Section 99.18 of the City of Clearwater Code (Section 7B-20 Of Clearwater Ordinance No. 1843.)

RECOMMENDED ORDER

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the City of Clearwater Community Relations Board enter a final order dismissing the Supplemental Charge Of Discrimination filed by Petitioner, Ronald M. McElrath, against Respondent, Studebaker's Restaurant, in this case.

RECOMMENDED this 16th day of June, 1986, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1986.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0486

The following are rulings on the proposed findings of fact submitted in this case in accordance with Section 120.59(2), Florida Statutes (1985):

1. Petitioner's proposed findings of fact and Respondent's proposed findings of fact 1.

   through 3., 5. and 6. are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format

   to the extent necessary.

   
   

2. Respondent's proposed finding of fact 4. would have been included in paragraph l. above except that it is irrelevant that no other complaint has been brought under Chapter 99 for age discrimination during McElrath's

10 years as coordinator.

COPIES FURNISHED:

Miles A. Lance, Esquire Assistant City Attorney City of Clearwater

P. O. Box 4748 Clearwater, Florida 33518

Leslie M. Conklin, Esquire

280 N. Indian Rocks Road Belleair Bluffs, Florida 33540

Community Relations Board City of Clearwater

c/o Ronald M. McElrath

P. O. Box 4748 Clearwater, Florida 33518

Docket for Case No: 86-000486

Orders for Case No: 86-000486