STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUNGVICHIT YONGMAHAPAKORN,

Petitioner,

vs.

RAMADA AT AMTEL MARINA,

Respondent.

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) Case No. 04-3575

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on April 5, 2005, via teleconference from locations in Fort Myers, Florida, and Bangkok, Thailand, before Lawrence P. Stevenson, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rungvichit Yongmahapakorn, pro se

490 Mahachak Road, Sampantawong Bangkok, Thailand 10100

For Respondent: John M. Hament, Esquire

Kunkel, Miller & Hament

235 North Orange Avenue, Suite 200 Sarasota, Florida 34236

STATEMENT OF THE ISSUE

Whether Petitioner has been subjected to unlawful discrimination in a public accommodation by Respondent, as

alleged in the Amended Public Accommodation Charge of Discrimination filed by Petitioner on July 30, 2003.

PRELIMINARY STATEMENT

On July 30, 2003, Petitioner, Rungvichit Yongmahapakorn, filed an Amended Public Accommodation Charge of Discrimination1/ (the "Complaint") with the Florida Commission on Human Relations ("FCHR"), which alleged that Petitioner was subjected to substandard service at Respondent's hotel "because of my race (Asian), gender (female), and national origin (Thailand)." The allegations were investigated, and on September 9, 2004, the FCHR issued its Amended Determination of No Reasonable Cause.2/ Though the Complaint regarded public accommodation discrimination, the Determination stated that the FCHR had determined "that no reasonable cause exists to believe that an unlawful employment practice occurred."

On September 28, 2004, Petitioner filed a Petition for Relief, accompanied by 47 exhibits filling 80 pages, that for the most part dealt with allegations that Respondent discriminated against Petitioner when it dismissed her from employment. FCHR transmitted the case to the Division of Administrative Hearings ("DOAH") on September 30, 2004. A Notice of Hearing was issued on October 19, 2004, setting the case for formal hearing on December 9 and 10, 2004. By letter dated October 20, 2004, the undersigned granted Petitioner's

request to participate by telephone from Bangkok, Thailand. The matter was continued once, then scheduled to begin on April 5, 2005, when the hearing took place.

On January 10, 2005, Respondent filed a Motion to Dismiss those portions of the Petition for Relief dealing with employment discrimination. The Motion noted that, while Petitioner had brought an employment discrimination charge with the Office of Equal Opportunity of the Lee County Board of County Commissioners, she had not made such a charge with the FCHR. The Motion also noted that the FCHR had never processed an employment discrimination charge by Petitioner, nor rendered a determination of any kind regarding an employment discrimination charge by Petitioner. Therefore, DOAH did not have jurisdiction over the employment discrimination allegations made in the Petition for Relief.

By Order dated January 18, 2005, the Motion to Dismiss was denied without prejudice, based upon the fact that the FCHR's Amended Determination of No Reasonable Cause had expressly stated that "no reasonable cause exists to believe that an unlawful employment practice occurred." On January 27, 2005, Respondent filed a Motion for Reconsideration, accompanied by the sworn affidavit of Cecil Howard, the FCHR's general counsel, who attested as follows, in relevant part:

The explicit references to "employment" and "employer" in the Amended Determination:

No Cause, and the Amended Notice of Determination: No Cause, were made in error. For purposes of this Public Accommodation case, Respondent is a "public lodging establishment." As opposed to concluding that "there is no reasonable cause to believe that an unlawful employment practice occurred," the Amended Determination and Amended Notice of Determination should correctly state that there is no reasonable cause to believe that Respondent discriminated against Complainant because of her race, gender and national origin, as properly set forth in the Investigative Memorandum's conclusion.

Based upon the general counsel's attestation that this case was at all times a public accommodation charge of discrimination and not a charge of employment discrimination, the undersigned entered an Order dated February 1, 2005, dismissing those portions of the Petition for Relief regarding the allegations of employment discrimination and directing that the case would go forward solely on the allegation that Respondent discriminated against Petitioner in the provision of public lodging services.

At the hearing, Petitioner testified on her own behalf and offered no exhibits beyond those included in her Petition for Relief. Respondent presented the testimony of Ginger Eodice, Respondent's director of Housekeeping, during the events at issue in this case; Michael Bachi, Respondent's guest services manager; Guerline Joseph, a front desk employee of Respondent; Carol-Anne Bailey, Respondent's Human Relations director; Ray

Roldan, Respondent's front desk manager during the events at issue; James Denny, Respondent's head of security; and Alexander Gusler, a member of the engineering staff at Respondent's facility. Mr. Gusler was not listed as a witness by Respondent and, upon Petitioner's objection, the testimony of Mr. Gusler was stricken. Respondent's Exhibits 1 through 3 were admitted into evidence.

The hearing has not been transcribed. At the close of the hearing, the parties stipulated that no post-hearing submissions would be made by either party.

FINDINGS OF FACT

1. Petitioner, Rungvichit Yongmahapakorn, was hired by Respondent as an internal auditor in December 1998, then was promoted to vice president of accounting and finance in April 1999. While she worked for Respondent, Petitioner was provided room and board at the hotel. Her employment was

   terminated by Respondent on May 30, 2003. The circumstances of her termination are not at issue in this proceeding.

2. Respondent, Amtel Group of Florida, Inc., d/b/a Ramada at Amtel Marina, owns and operates a 24-story full service hotel in downtown Fort Myers, Florida, overlooking the Caloosahatchee River. The hotel offers over 400 rooms and suites to guests.

3. Petitioner testified that in May 2003, she visited her native Thailand. She returned to Fort Myers on June 3, 2003,

   and proceeded to Respondent's hotel, where she learned of her termination. Petitioner testified that the notice of her termination was posted on the door of Room 411, a room dedicated to staff of the hotel in which she had lived for several months. The notice also informed her that she must vacate the hotel's premises immediately.

4. Having nowhere else to go and wishing to have some time to assess her options, Petitioner requested that she be allowed to stay as a paying guest of the hotel. She also complained of mildew in Room 411 and asked for a different room. Hotel staff showed her Room 1621, a non-smoking king guest suite facing the water. The standard rate for this suite was $129.00 per night. During the month of June, the rate actually charged for this room ranged from $89.00 to $119.00, depending on demand.

5. Petitioner rejected Room 1621 claiming that the furniture was dirty and scratched, and the carpet needed cleaning. Ginger Eodice, director of Housekeeping for the hotel, personally cleaned the room. Petitioner did not approve of Ms. Eodice's work.

6. Hotel staff then showed Petitioner Room 1613, another non-smoking king guest suite facing the water. Petitioner claimed that the window screens in this room were dirty and demanded that hotel staff show her another room. Petitioner was

   told that she could have her choice of Rooms 411, 1621, and 1613.

7. Ms. Eodice testified that all three of the rooms were up to Ramada standards of cleanliness and in good repair. Rooms 1621 and 1613 were provided without incident or complaint to hotel guests before and after Petitioner's stay in the hotel.

8. Petitioner refused to select a room. She was upset and became increasingly loud in the hotel lobby. Hotel staff attempted to mollify her in order not to create a scene in front of other guests, but Petitioner would not calm down. Den Chinsomboon, who was then a manager at the hotel, told Petitioner that she had to choose a room or be escorted from the hotel property. Petitioner continued her tirade, and

   Mr. Chinsomboon ordered a front desk employee to call the Fort Myers Police Department. The police arrived and told Petitioner that she had to select a room or leave the premises. Petitioner then calmed down and chose to stay in Room 1613.

9. Petitioner paid in advance for ten days' stay in the room totaling $646.10. Upon her checkout on June 12, 2003, Petitioner received a full refund of $646.10 from the hotel. No witness offered any first-hand explanation for the low rate charged or the reason for the full refund. Kevin Matney, the hotel manager who made these decisions, no longer works for Respondent and did not testify at the final hearing.

10. Petitioner testified that, while she was a guest in Room 1613, the hotel's engineering staff used pass keys to enter the room without her permission. Under cross-examination, Petitioner conceded that the engineering staff came to the room at her request to change a light bulb, but she still maintained that they entered without knocking. Several staff members testified that Ramada's firm policy was for staff to knock twice on a guest's door before using the pass key to enter.

11. Petitioner offered no evidence that hotel staff discriminated against her because she was Asian, Thai, or because she was female. The evidence established that the hotel's owners are Thai, as were several other employees at the time. She contended that Mr. Chinsomboon's actions were motivated by the "normal" Thai male's tendency to discriminate against Thai females, but offered no firm evidence to support this bare assertion.

12. Petitioner attempted to show that two white male employees were treated differently after their employment was terminated. At most, Petitioner was able to show that one of these terminated employees was later allowed to hire out the hotel's banquet facilities for a wedding reception. This can hardly be termed disparate treatment, given that Petitioner was allowed to stay at the hotel without charge for ten days after she was terminated.

13. Petitioner alleged discriminatory treatment in the fact that the hotel summoned the police to evict her because she complained about the condition of the rooms she was offered. The weight of the evidence established that Respondent's employees called the police because Petitioner was causing a disturbance and was refusing to select a room. Once Petitioner selected a room, she stayed at the hotel for nine nights without further incident and was not charged for her stay.

14. The evidence established that Petitioner had lived at the hotel since 1998 without complaining about the cleanliness or general repair of her rooms. The evidence established that Petitioner was irate over her termination and that her anger caused her to make unreasonable demands regarding the conditions of the rooms. Hotel staff attempted to satisfy Petitioner's demands, if only to prevent a loud confrontation in the hotel's lobby. There was no credible evidence that any employee of the hotel behaved in a manner that could be termed discriminatory against Petitioner.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569 and 120.57, Fla. Stat. (2004).

    
    

16. Section 760.08, Florida Statutes (2003), reads as follows:

    Discrimination in places of public accommodation.--

    
    

    All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this chapter, without discrimination or segregation on the ground of race, color, national origin, sex, handicap, familial status, or religion.

    
    

17. Subsection 760.02(11), Florida Statutes (2003), provides as follows, in relevant part:

    "Public accommodations" means places of public accommodation, lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, places of exhibition or entertainment, and other covered establishments. Each of the following establishments which serves the public is a place of public accommodation within the meaning of this section:

    
    

    1. Any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than four rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his or her residence.

       
       

18. Respondent meets the definition of a "public accommodation" and is, therefore, subject to Section 760.08, Florida Statutes (2003).

19. The FCHR and courts in Florida have determined that federal decisional law and statutory law shall be used as guidance when construing the provisions of Chapter 760, Florida

    Statutes (2003). Flyer Printing Co., Inc. v. Hill, 805 So. 2d 829, 831, n.1 (Fla. 2d DCA 2001); Florida State University v.

    Sondel, 685 So. 2d 923, 925, n.1 (Fla. 1st DCA 1996); Brand v. Florida Power Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

20. The United States Supreme Court in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), established the analysis to be used in discrimination cases under Title VII, which method of analysis is persuasive in cases such as this one.

21. In accordance with this analysis, Petitioner has the burden of establishing by a preponderance of the evidence, a prima facie case of unlawful discrimination. If a prima facie case is established, the burden shifts to Respondent to articulate some legitimate, non-discriminatory reason for the action taken against Petitioner. Once the non-discriminatory reason is offered by Respondent, the burden shifts back to Petitioner to demonstrate that the proffered reason is merely a pretext for discrimination. As the Supreme Court stated in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993), before finding discrimination, "the fact finder must believe the plaintiff's explanation of intentional discrimination."

22. In the instant case, Petitioner produced no direct evidence of discrimination. See Carter v. City of Miami, 870

    F. 2d 578, 581-82 (11th Cir. 1989)("direct evidence" is that which, if believed, would prove the existence of a fact without inference or presumption). Thus, in order for Petitioner to establish a prima facie case of public accommodation discrimination based upon her gender, nationality, or race, Petitioner must establish: 1) that she is a member of a protected class; 2) that she attempted to contract for services and to afford herself the full benefits and enjoyment of a public accommodation; 3) that she was denied the right to contract for those services and, thus, was denied those benefits and enjoyments; and 4) similarly situated persons who are not members of the protected class received full benefits or enjoyment, or were treated better. See Afkhami v. Carnival Corporation, 305 F. Supp. 2d 1308, 1322 (S.D. Fla. 2004).

23. Petitioner has not established a prima facie case.

She has established that she is a member of three protected classes: her race is Asian, her national origin is Thai, and her sex is female. However, Petitioner did not establish that she was denied any of the benefits and enjoyments of the public accommodation in question. To the contrary, Petitioner was given benefits for which similarly-situated persons are expected to pay. She spent nine nights at Respondent's hotel, free of

charge, in a room that the hotel commonly rents for at least

$89.00 per night. The dispute that preceded her stay in Room 1613 was caused by Petitioner's own anger at the

termination of her employment, not any discriminatory motive or action by Respondent or any of its employees.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 11th day of April, 2005, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 11th day of April, 2005.

ENDNOTES

1/ Though styled an "amended" charge, this was, in fact, the only charge found in the record of this case.

2/ Again, this "amended" determination is the sole determination found in the record of this case.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Rungvichit Yongmahapakorn

490 Mahachak Road, Sampantawong Bangkok, Thailand 10100

John M. Hament, Esquire Kunkel, Miller & Hament

235 North Orange Avenue, Suite 200 Sarasota, Florida 34236

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-003575

Orders for Case No: 04-003575