STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY CHICVAK, a minor,

Petitioner,

vs.

WALT DISNEY WORLD COMPANY,

Respondent.

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) Case No. 05-3966

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the formal hearing in this proceeding on February 13, 2006, in Orlando, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Michael Chicvak, pro se,

on behalf of his daughter, Kimberly Chicvak, a minor

23 Twin Oaks Drive

Kings Park, New York 11754

For Respondent: Brian C. Blair, Esquire

Greenberg Traurig, P.A.

450 South Orange Avenue, Suite 650 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent discriminated against Petitioner on the basis of her disabilities, in violation of Sections 509.092 and 760.08,

Florida Statutes (2004), by refusing to grant Petitioner access to the front of a designated parade viewing area.

PRELIMINARY STATEMENT

On April 12, 2005, Petitioner filed her Public Accommodation Complaint of Discrimination with the Florida Commission on Human Relations (Commission) alleging that Respondent discriminated against her. On October 6, 2005, the Commission issued a Determination: No Cause, finding that no reasonable cause exists to believe that unlawful discrimination occurred (no cause determination).

On October 18, 2005, Petitioner timely filed a Petition for Relief, by which Petitioner requested a formal hearing to challenge the no cause determination. On October 19, 2005, the Commission referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner's father testified and submitted

16 exhibits for admission into evidence. Respondent called one witness and submitted six exhibits for admission into evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are reported in the one-volume Transcript of the hearing filed with DOAH on April 5, 2006. Petitioner and Respondent timely filed their respective Proposed Recommended Orders on April 10 and 14, 2006.

FINDINGS OF FACT

1. Petitioner is a minor female and is an individual with disabilities. Petitioner has recognized impairments that substantially limit one or more major life activities.

2. Petitioner is diagnosed with cerebral palsy and is legally blind. Petitioner has a visual acuity of 20/200 in the right eye, 20/160 in the left eye, and 20/160 in both eyes.

3. Petitioner visited Disney's Magic Kingdom (Kingdom) in Orlando, Florida, with her family on February 21, 2005. The visit occurred at a time identified in the record as President's Day Weekend. That weekend is one of the most heavily attended times of the year at the Kingdom.

4. Petitioner and her family attended the SpectroMagical Parade (parade) at 9:00 p.m. The parade travels a route through the streets of the Kingdom. The parade route is approximately one mile in length, thereby providing two miles of front viewing area on both sides of the streets that form the parade route. The entire parade route is accessible and has comparable lines of sight over the entire route.

5. From sometime in the 1970s, Respondent has voluntarily maintained three designated parade viewing areas along the parade route for use by guests with disabilities. The viewing areas are intended to enhance the ability of disabled individuals to view and enjoy the parade.

6. Respondent has also maintained a full-time department known as the Services for Customers with Disabilities (services department). The services department is devoted exclusively to assisting guests with disabilities and training designated employees in how to properly assist guests with disabilities.

7. The services department has voluntarily implemented a number of other services to ensure that guests with disabilities will enjoy their experience at the Kingdom. Among other things, the services department has produced a Guidebook for Guests with Disabilities (Guidebook), developed accessible rides and handheld captioning devices, implemented a Guest Assistance Card program, and printed Guidemaps for its theme parks.

8. Respondent makes Guidebooks available in all of its theme parks and provides Guidebooks to guests free of charge. The Guidebook summarizes service offerings to provide assistance to guests with disabilities.

9. The Guidebook also sets forth policies and procedures pertaining to a number of accessibility related issues. For example, the Guidebook covers policies and procedures for service animals, describes various types of access for disabled individuals, identifies rides that have wheelchair space, provides directions to accessible entrances, describes services for the hearing impaired, and describes the policy and procedure concerning access and use of designated parade viewing areas.

10. The Guidebook expressly provides that parade viewing areas designated for guests with disabilities are filled on a "first come, first served" basis. This policy is consistent with policies and procedures concerning viewing areas for all guests, irrespective of whether they are disabled.

11. The Guidebook expressly provides that employees permit disabled guests to occupy designated parade viewing areas with non-disabled companions and family members and will not separate disabled guests from their companions or family members. Up to five people may accompany guests with disabilities into the viewing areas. The policy does not limit access to parade viewing areas to disabled individuals who use wheelchairs.

12. Employees will not displace any non-disabled family member or companion in order to add a disabled guest to the viewing area (non-displacement policy). Respondent uniformly implements the non-displacement policy for rides, theaters, attractions, and shows. Due to limited space in the designated parade viewing areas, the Respondent advises guests to arrive well in advance of the parade time.

13. Respondent also posts policies and procedures relating to designated parade viewing areas on Respondent's internet web site. The information is also available from designated employees. Respondent trains these employees in the proper

    etiquette for assisting guests with disabilities in accordance with Respondent's policies and procedures.

14. Respondent also disseminates Guidemaps of its theme parks to assist guests with disabilities. Guidemaps, among other things, identify the location of the designated parade viewing areas for guests with disabilities and show the parade route.

15. Respondent has also developed and implemented a Guest Assistance Card program. Guest Assistance Cards contain certain types of assistance requested by guests with disabilities. The type of assistance requested is placed on the face of the Guest Assistance Card thereby avoiding the need for guests to explain the same request at every attraction, show, or ride. The assistance requested varies from guest to guest depending on their disability.

16. The services department provides a Guest Assistance Card to any guest with a disability who requests a card. Respondent does not independently verify the disability of any guest who requests a Guest Assistance Card. Respondent does not limit the amount of Guest Assistance Cards issued and may issue hundreds or thousands of cards in a day.

17. One form of assistance is available seating in the "front row of ride vehicles or theaters, where applicable." This assistance permits a guest with a hearing or visual

    disability to sit in the front of a theater or ride to enhance his or her experience. When requested, this form of assistance is placed on the Guest Assistance Card.

18. A Guest Assistance Card does not guarantee that space will be available in a guest viewing area, that the guest will have immediate access to the area, or that front row seating will be available at every event. The Guest Assistance Card permits front row seating when available and only at those activities or facilities listed on the card. This policy is clearly printed on each Guest Assistance Card, along with the non-displacement policy.

19. Assistance in the form of front row seating is limited to ride vehicles and theaters. Ride vehicles are moving conveyances that are boarded and ridden in, such as roller coasters. Theaters are facilities with fixed seating where a show is presented. Fixed seating is a designated area where seats or chairs are affixed to the ground and are therefore stationary and immobile.

20. Parade viewing areas for individuals with disabilities are neither ride vehicles nor theaters. Parade viewing areas do not provide fixed seating but are designated areas on sidewalks along the parade route. Assistance in the form of front row seating does not apply to parade viewing areas along streets or

    sidewalks. Even if the viewing areas were theaters or rides, the non-displacement policy applies to rides and theaters.

21. Respondent issued a Guest Assistance Card to Petitioner in an area identified in the record as EPCOT. Petitioner requested assistance in the form of front row seating, and the card authorized front row assistance.

22. Petitioner arrived at a designated viewing area in an area of the Kingdom identified as Liberty Square approximately

    20 minutes prior to the start of the parade. Petitioner requested access to the front of the viewing area. However, the front of the viewing space was already filled by guests in wheelchairs.

23. The appropriate employee directed Petitioner and her family to a second designated parade viewing area located at an area of the Kingdom identified in the record as the hub. By the time Petitioner arrived at the second parade viewing area, the front of the viewing area was full with guests in wheelchairs and their companions and family members.

24. Respondent did not displace other guests with disabilities and did not displace their family members or their companions so that Petitioner and her family would have access to the front of the viewing area. Although there was room in the second viewing area for Petitioner and her sister, there was not room for Petitioner's other family members. There was no

    room for Petitioner and her sister in the front of the parade viewing area.

    CONCLUSIONS OF LAW

    
    

25. DOAH has jurisdiction over the parties and the subject matter in this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005). DOAH provided the parties with adequate notice of the final hearing.

26. In relevant part, Petitioner alleges that Respondent discriminated against her in violation of Section 509.092, Florida Statutes (2004). The statute prohibits discrimination in public lodging and food service establishments.

27. The designated parade viewing area at issue is neither a public lodging establishment nor a food service establishment. DOAH is not free to change the plain wording of the statute. Knowles v. Beverly Enter. Fla., Inc., 898 So. 2d 1 (Fla. 2004). The plain meaning of the words is the primary and most reliable source of interpreting a statute's meaning. State v. Burger, 921 So. 2d 847 (Fla. 2d DCA 2006). Thus, courts look first to the language used in the statute. Maggio v. Florida Dept. of Labor & Employment Sec., 899 So. 2d 1074, 1076-1077 (Fla. 2005).

28. The remaining claim is that Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act (FCRA), Section 760.08, Florida Statutes (2004). The FCRA must be construed in conformity with applicable federal law in the

    Americans with Disabilities Act (ADA). Judicial decisions construing the federal law are apposite in this proceeding. Wimberly v. Securities Techn. Group, Inc., 866 So. 2d 146 (Fla. 4th DCA 2004); Tourville v. Securex, Inc., 769 So. 2d 491, 492

    n.1 (Fla. 4th DCA 2000); Greene v. Seminole Elec. Coop., Inc., 701 So. 2d 646 (Fla. 5th DCA 1997).

29. Petitioner has the initial burden of proof in this proceeding. Petitioner must make a prima facie showing that Respondent discriminated against her on the basis of her disabilities. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Reed v. Heil Co., 206 F.3d 1055 (11th Cir. 2000); Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

30. There are several requirements for a prima facie case of discrimination. In relevant part, Petitioner must show:

    (1) she is disabled; (2) Respondent is a private entity that owns, leases, or operates a place of public accommodation;

    1. Respondent employed a discriminatory policy or practice; and

       
       

    2. Respondent discriminated against Petitioner based upon a disability by failing to make a requested reasonable modification that was necessary to accommodate Petitioner's disability. Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004)(Title III of the ADA).

31. Petitioner showed by a preponderance of the evidence that she is an individual with disabilities. Petitioner is diagnosed with cerebral palsy and is legally blind.

32. The testimony of Petitioner's father was credible and persuasive. The hearsay letters from Petitioner's physician explain or supplement his testimony. § 120.57(1)(a), Fla. Stat. (2005).

33. A preponderance of the evidence does not show that Respondent took adverse action against Petitioner solely because of Petitioner's disabilities. Rather, no discrimination occurred because Respondent provided Petitioner with access to the second parade viewing area Petitioner attempted to enter.

34. Respondent articulated valid, non-discriminatory reasons for denying access to the first parade viewing area that Petitioner attempted to enter and for denying access to the front of the second viewing area. The first viewing area was full, and the front to the second area was full.

35. Respondent would have had to deviate from its non- displacement policy, and thereby discriminate against other individuals with disabilities already in the front of the viewing area, in order to accommodate Petitioner's request for access to the front of either viewing area. Respondent's policy and procedure of not displacing other guests with disabilities or their family members or companions in favor of Petitioner is

consistent with analogous policies under the ADA and is not discriminatory under the ADA or FCRA. See, e.g., 28 C.F.R. §

66.308(a)(ii)(D).

RECOMMENDATION

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

RECOMMENDED that the Commission enter a final order finding that Respondent did not discriminate against Petitioner on the basis of a disability or handicap.

DONE AND ENTERED this 2nd day of May, 2006, in Tallahassee,

Leon County, Florida.

S

DANIEL MANRY

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 2nd day of May, 2006.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Carol Pacula

Walt Disney World Company 1375 Buena Vista Drive Orlando, Florida 32830

Kimberly M. Chicvak c/o Michael Chicvak

23 Twin Oaks Drive

Kings Park, New York 11754

Brian C. Blair, Esquire Greenberg Traurig, P.A.

450 South Orange Avenue, Suite 650 Orlando, Florida 32801

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: 05-003966

Orders for Case No: 05-003966