STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

*AMENDED RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on April 30, 2004, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Ann Marie Augustino, pro se

7139 62nd Street, North Pinellas Park, Florida 33780

For Respondent: Barbara J. Weller, Esquire

Gibbs Law Firm, P.A.

5666 Seminole Boulevard, Suite 2

Seminole, Florida 33772

Drew A. Gardner, Esquire

8313 West Hillsborough Avenue, Suite 150

Tampa, Florida 33615 STATEMENT OF THE ISSUES

Whether Petitioner, Ann Marie Augustino, was denied copying services by Respondent, Kwikie Printing, because of her religion in violation of Pinellas County Code Section 70-214, when Kwikie

Printing refused to print the GreenSong Grove, Inc.'s, newsletter, "Voices of the Grove."

PRELIMINARY STATEMENT

On March 10, 2004, the Division of Administrative Hearings received a request from Pinellas County, Florida, by and through its Office of Human Rights, for the assignment of an Administrative Law Judge to consider the issues presented by a public accommodations discrimination complaint and to render a Recommended Order to the Pinellas County Board of County Commissioners consistent with Chapter 70 of the Pinellas County Code.

On March 12, 2004, an Initial Order was sent to both parties. On April 6, 2004, the case was scheduled for final Hearing in St. Petersburg, Florida, on April 30, 2004.

The case was heard as scheduled on April 30, 2004.

Petitioner presented two witnesses and offered one exhibit, which was received into evidence and marked Petitioner's Exhibit 1. Respondent presented two witnesses and one exhibit, which was received into evidence and marked Respondent's Exhibit 1. The original Charge of Discrimination was admitted into evidence at the undersigned's request as ALJ's Exhibit 1.

At the hearing, Respondent presented three motions for consideration: (1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, (2) Motion to Dismiss for Failure to State a Cause

of Action, and (3) Motion for Summary Judgment. Petitioner was advised that she would have an opportunity to review these motions at her leisure and file responses, which she has done.

As explained during a pre-hearing telephone conference and at the hearing, Administrative Law Judges do not have the authority to consider the constitutionality of laws. To the extent that Respondent's Motion to Dismiss for Lack of Subject Matter Jurisdiction addresses constitutional issues, they are not considered, but are reserved for consideration on appeal, if appropriate.

To the extent Respondent argues that jurisdiction does not attach because the letter directing this controversy to the Division of Administrative Hearings was authored by the Pinellas County Human Rights/Equal Employment Opportunity (EEO) officer and not the Pinellas County Board of County Commissioners, the motion is denied.

Respondent's Motion to Dismiss for Failure to State a Cause of Action and Motion for Summary Judgment, which is considered a Motion for Summary Recommended Order, and Petitioner's responses to these motions are not considered separately in the conclusions of law and recommendation, but are effectively included in this Recommended Order without specific reference.

At the close of the hearing, the parties were given 30 days from the filing of the transcript with the Clerk of the Division of Administrative Hearings to file proposed recommended orders.

The Transcript was not filed with the Clerk of the Division of Administrative Hearings until June 10, 2004. The court reporter signed the Certificate of Reporter on May 10, 2004.

Respondent's Proposed Recommended Order was filed on June 10, 2004. Petitioner requested and received an extension until July 15, 2004, to file her proposed recommended order.

Petitioner's Proposed Recommended Order was filed on July 14, 2004.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made:

1. Petitioner, Ann Marie Augustino, is a self-proclaimed witch who follows the Wicca religion.

2. Petitioner is a member of a religious organization, GreenSong Grove, Inc., a Florida not-for-profit corporation.

3. Respondent, Kwikie Printing, operates a printing business in Pinellas Park, Florida. It operates a business which provides goods and services to the public.

4. Among GreenSong Grove, Inc.'s, purposes, as stated in its Articles of Incorporation, are the following:

   1. to provide a place of worship to celebrate, support and teach the penance of the Pagan religion;

      
      

   2. to provide and disseminate information regarding Paganism and the Pagan faith to the general public, other religions and secular bodies in order to educate and inform.

5. In furtherance of its stated corporate purpose, GreenSong Grove, Inc., regularly publishes a newsletter, "Voices of the Grove."

6. For several years prior to the incident which gave rise to the complaint of discrimination, Respondent printed materials for Petitioner and GreenSong Grove, Inc. In addition to the "Voices of the Grove" newsletter, Respondent had printed business cards, hats, and T-shirts; all contained the GreenSong Grove, Inc., logo.

7. In October 2001, Respondent's employees, including Patricia Hall, Respondent's manager, and her husband, Robert Hall, a part-time employee, had occasion to read portions of the "Voices of the Grove" newsletter and were offended by its content. On this occasion, the printing job, which was in progress when its content was discovered by Respondent, was completed as contracted, and the newsletter was delivered to a representative of GreenSong Grove, Inc. Petitioner did not pick up the October newsletter; however, the individual who picked up the newsletter was advised that the newsletter would no longer be printed by Respondent because of its content.

8. In December 2001, Petitioner returned to Respondent's printing establishment seeking to have the newsletter printed; Respondent through the Halls advised Petitioner that Respondent would not print the newsletter because they found the contents offensive to their religious views. This was essentially confirmed by a witness who had accompanied Petitioner when she returned to Respondent's facility the following day and was again

   refused. Respondent, through the Halls, advised Petitioner that Respondent would print other non-offensive materials as it had done in the past.

9. The testimony of Petitioner and the Halls is consistent regarding the stated purpose for Respondent's refusal to print the newsletter. In Petitioner's original Charge of Discrimination filed with the City of St. Petersburg, she states: "When I asked for an explanation, Rob Hall came out and stated that the letter was about Witchcraft and Paganism and he would not support those religious views since he was a born again Christian." Petitioner's testimony at the hearing and that of the Halls confirmed that the reason that the newsletter was not printed was due to its content. She further testified that she believed that the Halls' religious-based motivation for not printing her newsletter was a sincere exercise of their religious beliefs.

10. Petitioner confirms that Respondent, through the Halls,

    offered to continue to perform other printing services for her. In addition, they offered to allow her to use a copier in their place of business on which she could print the newsletter.

11. Petitioner offered no evidence, nor did she testify, that Respondent discriminated against her, personally, as opposed to their objection to the content of the material she sought to have printed on behalf of GreenSong Grove, Inc.

12. Robert Hall testified that he believes the Bible

    speaks against witchcraft and produced an extensive list of Bible verses that support his contention. He further believes that the

    advocacy of witchcraft is against God and that printing the subject newsletter would be blasphemy. Patricia Hall testified that her religious beliefs are consistent with Robert Hall's and, in her capacity as Respondent's general manager, confirmed the decision not to print the newsletter.

13. Respondent has, in the past, refused to provide printing services for individuals who presented materials that Respondent found offensive. Respondent would not provide services to any individual, regardless of the individual's religious preference, if the material submitted was found to be offensive.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of these proceedings. § 120.65(7), Fla. Stat. (2003), and Administrative Law Judges Services Contract, February 2004, Pinellas County Board of County Commissioners and State of Florida, Division of Administrative Hearings.

15. Pinellas County Code Section 70-214(a) provides:

    
    

    It is a violation of this subdivision for an operator of a place of public accommodation, whether personally or through the actions of an employee or independent contractor, to deny or refuse to another person the full and equal enjoyment of the facilities and services of any place of public accommodation on the basis of that person's race, color, religion, national origin, sex or disability.

    
    

16. Pinellas County Code Section 70-211 provides:

    Place of public accommodation means and includes all places included within the meaning of the following: Inns, taverns, roadhouses, hotels, and motels, whether operated for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest; restaurants, eating houses, and any place where food is sold for consumption on the premises; buffets, saloons, barrooms, or any store, park or enclosure where spirits or malt liquors are sold; ice cream parlors, confectioneries, soda fountains, and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind, are retailed for consumption on the premises; wholesale and retail stores and establishments dealing with goods or services of any kind; dispensaries, clinics, hospitals; bathhouses, swimming pools; laundries and all other cleaning establishments; barbershops, beauty shops; theaters, motion picture houses, airdromes, roof gardens, music halls, racecourses, skating rinks, amusement and recreation parks, trailer camps, resort camps, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiard and pool parlors; garages; all public conveyances operated on land or water or in the air, as well as the stations and terminals thereof; travel or tour advisory services, agencies or bureaus; and public halls and public elevators of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants.

    
    

17. A business establishment providing printing to the general public comes within the purview of "retail stores and establishments dealing with goods and services of any kind"; Respondent is subject to Pinellas County Code Section 70-214(a).

18. The specific Pinellas County Code section cited in paragraph 15, supra, makes it a violation to deny "another person full and equal enjoyment of the facilities and services of any place of public accommodation on the basis of that person's . . . religion . . ." (Emphasis added)

19. In considering cases involving allegations of discrimination, it is appropriate to consider legal principles and judicial precedent set forth under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000 et seq. King v. Auto, Truck, Indus. Parts and Supply, Inc., 21 F. Supp. 2d 1370 (N.D. Fla. 1998); Carlson v. WPLG/TV-10, Post-Newsweek Stations of Florida, 956 F. Supp. 994 (S.D. Fla. 1996).

20. The United States Supreme Court has established an analytical framework within which courts should examine claims of discrimination, including claims of religious discrimination. In cases alleging discriminatory treatment, Petitioner has the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Combs v. Plantation Patterns, 106 F.3d. 1519 (11th Cir. 1997).

21. Petitioner can establish a prima facie case of religious discrimination in one of three ways: (1) by producing direct evidence of discriminatory intent; (2) by circumstantial evidence under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); or (3) by establishing statistical proof of a pattern of discriminatory conduct. Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1989). If Petitioner cannot

    establish all of the elements necessary to prove a prima facie case, Respondent is entitled to entry of judgment in its favor. Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990).

22. To establish a prima facie case of religious discrimination, Petitioner must show that: she is a member of a protected class; she attempted to contract for services and to afford herself full benefits and enjoyment of a public accommodation; she was denied the right to contract for those services and, therefore, was denied the full benefits and enjoyment of a public accommodation; and, such benefits and services were available to similarly situated persons outside the protected class who received full benefits or enjoyment, or were treated more favorably. McDonnell Douglas Corp. v. Green, 411

    U.S. 792 (1973); United States v. Lansdowne Swim Club, 894 F.2d 83, 88 (3rd Cir. 1990); Afkhami v. Carnival Corporation, 305 F. Supp. 2d 1308, 1322 (S.D. Fla. 2004).

23. Petitioner has failed to establish a prima facie case. The evidence as presented fails to show that she, personally, suffered discriminatory treatment or was personally the victim of Respondent's discriminatory intent. Admittedly, Respondent discriminated against the newsletters' content which it found to be religiously offensive. Respondent did not discriminate against Petitioner, individually. Respondent's printing services that were available to other members of the public were available to Petitioner, with the caveat that the

    content of the material presented to be printed was not offensive

    to Respondent. The availability of Respondent's services was denominated by the same caveat which was applied similarly to all customers.

24. While Pinellas County Code Section 70.214 does prohibit Respondent from denying its copying and printing services on the basis of the religion of the person seeking the services, it does not prohibit discriminating based on the content of a document, even when the content is religions in nature.

25. In World Peace Movement of America v. Newspaper Agency Corporation, Inc., 879 P.2d 253, 257-258 (Utah 1994), a case

construing a similar state public accommodations statute, the Supreme Court of Utah, ruled that its state public accommodations statute did not prohibit a party from denying its printing services based on the religious content of materials so long as there is no discrimination based on the religion of the individual seeking the printing services. The Utah Supreme Court's ruling says, in part:

[T]he Act prohibits NAC [Respondent in this case]from denying its advertising services on the basis of the religion of the person seeking those services. Nevertheless, under the plain language of the Act, a publisher may discriminate on the basis of content even when content overlaps with a suspect classification like religion. For example, a Jewish-owned and - operated newspaper which serves a primarily Jewish community might lawfully refuse advertisements propagating anti-Semitic "religious" sentiments.

However, that same newspaper could not single out members of an anti-Semitic religious group and refuse to accept advertisements, regardless of content, from any member of that group simply because they are a member of that group. Such discrimination, which is directed at the individual seeking to place

the advertisement rather than at the content of the advertisement, is prohibited by the Act.

The Act, however, does not prohibit "discrimination" against religious beliefs, ideas, or sentiments standing alone, apart from the persons who hold and profess them. World Peace Movement [Petitioner in the Utah case] appears to be entirely correct in its assertion that NAC refused to print its advertisement because of its religious message. . . Nevertheless, it was the message itself that NAC rejected, not its proponents. NAC would have refused to print the advertisement had it been offered by any person of any religion. This conduct was not a denial of services to a person on the basis of religion within the meaning of the Act.

* * *

Furthermore, World Peace Movement does not allege that NAC refused to accept other advertisements, whether or not religious in nature, submitted by World Peace Movement members. NAC simply rejected this particular advertisement on the basis of its content.

As the situation stands, World Peace Movement, like any other person or entity, is free to purchase advertising from NAC subject to NAC's editorial judgment. (Emphasis in original)

Id. See also Cyntje v. Daily News Pub. Co., 551 F. Supp. 403,

405 (D.V.I. 1982)("So long as such a refusal [to publish an advertisement] is not . . . based on an . . . invidiously discriminatory classification among those seeking to place

advertisements, a publication cannot . . . be compelled to print or to disseminate a paid advertisement." (Emphasis added)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the public accommodations discrimination complaint against Kwikie Printing be dismissed.

DONE AND ENTERED this 13th day of September, 2004, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2004.

COPIES FURNISHED:

Ann Marie Augustino 7139 62nd Street, North

Pinellas Park, Florida 33780

W. Oliver Melvin, Compliance Officer Pinellas County Office of Human Rights

400 South Fort Harrison Avenue, Fifth Floor Clearwater, Florida 33756

Barbara J. Weller, Esquire Gibbs Law Firm, P.A.

5666 Seminole Boulevard, Suite 2

Seminole, Florida 33772

Drew A. Gardner, Esquire

8313 West Hillsborough Avenue, Suite 150

Tampa, Florida 33615

Leon W. Russell, Human Rights/EEO Officer Pinellas County Office of Human Rights

400 South Fort Harrison Avenue, Fifth Floor Clearwater, Florida 33756

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Amended Recommended Order. Any exceptions to this Amended Recommended Order should be filed with the undersigned Administrative Law Judge that will issue the final order in this case.

Docket for Case No: 04-000800

Orders for Case No: 04-000800