STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NICHOLAS FIORAVANTI, )
and his mother and family )
by association, )
)
Petitioners, )
)
vs. ) Case No. 06-1433
)
CARNIVAL CRUISE LINES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings, on October 17, 2006, by video teleconference at sites in Miami and Tallahassee, Florida.
APPEARANCES
For Petitioners: Matthew W. Dietz, Esquire
Law Offices of Matthew Dietz, P.L. 2990 Southwest 35th Avenue
Miami, Florida 33139
For Respondent: Susan Toepfer, Esquire
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 West Flagler Street Miami, Florida 33130
STATEMENT OF THE ISSUE
Whether Respondent committed the violations alleged in the Petitioners' Public Accommodations Complaint of Discrimination and, if so, what relief should the Florida Commission on Human Relations grant.
PRELIMINARY STATEMENT
On September 20, 2005, Julie Fioravanti, on behalf of Nicholas Fioravanti (Nicholas) "and Nicholas' family (by association)," filed with the Florida Commission on Human Relations (FCHR) a Public Accommodations Complaint of Discrimination, alleging that, during a cruise on one of Respondent's vessels, Respondent discriminated against Nicholas and his family on the basis of Nicholas' "physical disability" in violation of "F.S. Chapters 509/760" in the following manner (as described in the complaint's "discrimination statement"):
We were asked to move my son Nicholas (who has Cerebral Palsy and uses a wheelchair) behind a wall because the people at the table behind us did not want to look at him. We were also denied reasonable accommodations for an earlier seating because of my son's dietary needs, for access to use a food processor for his food which was cleared through their medical dept PRIOR to departure and then we were told we could NOT bring any food out of the dining room back to our cabin to puree it there.
My son was only able to eat peanut butter and jelly sandwich[e]s the entire cruise because they would not accommodate our already APPROVED request.
On March 17, 2006, following the completion of its investigation of the complaint, the FCHR, through its Executive Director, issued a Notice of Determination: No Cause, advising that a determination had been made that "reasonable cause d[id] not exist to believe that an unlawful discrimination by a public accommodation ha[d] occurred."
Petitioners, on or about April 17, 2006, filed a Petition for Relief with the FCHR, in which they alleged the following:
Respondent has violated the Florida Civil Rights Act of 1992, as Amended, in the manner specifically described below:
Nicholas Fioravanti and by association, his mother and family, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations on a Carnival Cruise vessel dining room on the ground of Nicholas Fioravanti's disability (cerebral palsy) in the following ways:
Nicholas Fioravanti was denied the reasonable accommodation of an earlier dining time as a result of his disability despite the request of his mother.
Nicholas Fioravanti was denied the reasonable accommodation of a request to use a food processor at the table to grind Nicholas Fioravanti's food, and was not allowed to go to her room to grind the food.
Carnival made a discriminatory comment and requested that Nicholas Fioravanti sit behind a wall because the [people at the neighboring table] . . . did not want to look at Nicholas while they ate due to his disability.
On or about April 20, 2006, the FCHR referred the matter to the Division of Administrative Hearings (DOAH) for the assignment of a DOAH administrative law judge to conduct a hearing on the allegations of public accommodation discrimination made by Petitioners against Respondent.
As noted above, the final hearing in this case was held on October 17, 2006.2 Three witnesses testified at the hearing: Julie Fioravanti, Kay Strawderman, and Alexander Fioravanti. In addition, the following exhibits were offered and received into evidence: Respondent's Exhibits 2, 12, 17, 23, 25, 28, 30, 31,
33, 35, 36, and 37.3 Three of these exhibits (Respondent's Exhibits 35, 36, and 37) were deposition transcripts (of Richard Catalan, Marian Gobeaja, and Alina Chefneux, respectively), which were offered and received into evidence in lieu of the deponents' live testimony. At the close of the evidentiary portion of the hearing on October 17, 2006, the undersigned established the deadline for filing proposed recommended orders
30 days from the date of the filing of the hearing transcript with DOAH.
The Transcript of the final hearing (consisting of one volume) was filed with DOAH on October 27, 2006.
Petitioners and Respondent timely filed their Proposed Recommended Orders on November 27, 2006.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Julie Fioravanti (Mrs. Fioravanti) and Alexander Fioravanti (Mr. Fioravanti) have been married for 18 years. They have three children (two sons and a daughter): Nicholas, who is 15 years of age; Stephanie, who is 11 years of age; and Matthew, who is eight years of age. The family resides in Penfield, New York.
Nicholas "carries the diagnosis of Infantile Cerebral Palsy/Feeding/Swallowing Disorder, and Developmental Disabilities" and "requires total assistance from his caregivers for all his activities of daily living," including drinking and eating.
Unable to walk unassisted, he "[u]ses a wheelchair [propelled by others], primarily, for his transportation."
While he is barely able to speak or to otherwise express himself, he "fully understands and hears what's going on around him."
Nicholas is unable to drink out of a regular cup or glass, with or without a straw. His parents have to use a "toddler sippy cup" to administer liquids to him. "The majority of the time, [they] just . . . shake the liquid into his mouth and then he swallows it."
Eating is also a struggle for Nicholas. Instead of "chew[ing] with his teeth," which he is unable to do, he "uses his tongue, primarily, to mash the food on the roof of his mouth" so that he will be able to swallow it. Consequently, the foods he eats "have to be [of] a soft consistency." His parents often, using a food processor, purée his food for him, but there are a variety of food items that he is able to eat without their being puréed, including peanut butter and jelly sandwiches, macaroni and cheese, and "stuffed French toast," which are "his three favorite foods." Virtually every school day, his parents send him to school with a peanut butter and jelly sandwich to eat for lunch (along with applesauce and chocolate pudding). Nicholas eats out at restaurants with his family. On these occasions, his parents feed him items that are on the menu, including sweet potatoes, pork, macaroni and cheese, fettuccini Alfredo, and chicken. They do not take a food processor with them. When necessary, they "use a fork to cut everything up into fine small pieces."
In addition to his other difficulties, Nicholas has a "sleep disorder." By the end of the day, his muscles become "very tight," and he will have difficulty falling asleep without assistance. His pediatrician has prescribed medication for him to take to help him fall asleep, with instructions that he take it "at the hour of sleep which has to be timed appropriately
with his meals." "It takes approximately an hour for th[e] medication to begin to take effect," making him "more relaxed and calm" than he would otherwise be, but not causing him to "pass out and go to sleep." Although Nicholas must take his medication with dinner, he is not required, for any medical reason, to eat dinner or to go to bed at any particular time. His parents, however, have attempted to establish routines for him, including feeding him at the same time each day, because "that's what's worked best for [them] in taking care of him." They feed him dinner at around 6:00 p.m. If he is not fed at the usual time, Nicholas will sometimes become restless and start crying. On weekends, although he still eats dinner at around 6:00 p.m., he sometimes stays up later than he does during the rest of the week. There are times that he will watch television until 11:00 p.m.
Respondent operates a fleet of cruise ships.
The M/S Inspiration (Inspiration) is one of the ships in its fleet. It sails out of Tampa. Among the cruises that Respondent offers on the Inspiration is a five-day cruise to the Western Caribbean, with stops in Grand Cayman, Cayman Islands, and then Cozumel, Mexico.
Nicholas, his parents, his siblings, and his grandparents (his father's mother and father) went on such a five-day cruise on the Inspiration in early 2005, departing
Tampa on January 31, 2005. The total amount the entire family spent on this vacation was $4,272.11, including $2,833.31 for the cruise itself, $1,038.80 for air fare to and from Tampa, and
$400.00 for ground transportation and meals.
Mrs. Fioravanti made the reservations for the cruise, reserving two cabins for the family. The trip was "planned as a surprise" for Mr. Fioravanti for his 40th birthday.
Mrs. Fioravanti initiated the reservation process by telephoning Respondent's "main number" approximately three weeks before the cruise was scheduled to depart. Mrs. Fioravanti's "local travel agent," Judy Day of Just Cruises, ultimately "took over the remainder of the booking of the cruise," "handling the final arrangements."
Mrs. Fioravanti told Ms. Day that the family "required an early dinner seating because [it] was traveling with Nic[holas]." In Mrs. Fioravanti's presence, Ms. Day telephoned Respondent and asked the agent to whom she was speaking about an early dinner seating for the Fioravantis. Ms. Day "was not on a speakerphone," so Mrs. Fioravanti "could only hear [Ms.] Day's [end of the] conversation." "When [Ms. Day] hung up,"
Mrs. Fioravanti asked her if an "early dinner seating [was] going to be a problem." Ms. Day responded that "it should not be," but if a "problem" did arise on board the ship,
Mrs Fioravanti could "go to the purser's desk and let them know
[she] had requested an early dinner seating and they [could] handle any changes that need[ed] to be made."
Ms. Day had Mrs. Fioravanti fill out and sign a Special Requirements Information form that Respondent uses to obtain information from passengers with disabilities. The form contained the following introductory statement:
Carnival Cruise Lines will seek, to the extent feasible, to accommodate the needs of all guests so they can enjoy our ships and other facilities. In limited situations where an individual with a disability would be unable to satisfy certain safety criteria even when provided with appropriate auxiliary aids and services, we will not permit the person to travel unless he or she can make alternative arrangements that would enable hi[m] or her to meet such criteria.
The following information is necessary so that we are fully aware of any special medical, physical or other requirements you may have.
In the space on the form where Respondent asked the passenger to "[p]lease describe any special medical, physical, or other requirements you may have," Mrs. Fioravanti wrote the following:
Nick has cerebral palsy - traveling with a non-collapsable manual wheelchair. Requires accessible cabin. We will be bringing portable food processor for any special meal requirements.
Mrs. Fioravanti provided no further information in this space, nor did she "attach an additional page" to add to what she had written.
After completing the form, Mrs. Fioravanti signed and dated it (January 6, 2005).
When the Fioravanti family boarded the Inspiration on January 31, 2005, they learned that they were scheduled for the 8:00 p.m. dinner seating at Table 224 in the Carnivale Dining Room (Carnivale).
The Carnivale was one of two main formal dining rooms on the ship. It had two dinner seatings, the one the Fioravantis were assigned and an earlier one, which was at or around the time Nicholas usually ate dinner at home.
In accordance with the instructions she had been given by Ms. Day prior to boarding, Mrs. Fioravanti went to the purser's desk to ask if the family could be reassigned an early dinner seating. At the purser's desk, Mrs. Fioravanti was told she needed to see the maitre d' because he was responsible for handling all such requests.
Later that day, Mr. Fioravanti went to the maitre d's "station" to speak to the maitre d' about "mov[ing] [the family's] dining time slot." There were "close to 20 [other] people in the line" waiting to speak to the maitre d'.
In asking the maitre d' for an "earlier time slot," Mr. Fioravanti mentioned that he was traveling with three children, all of whom were "on a schedule" and one of whom, Nicholas, was in a wheelchair and "had to take his medicine with
food." The maitre d' "took down the information," and he told Mr. Fioravanti that he would "see if he could accommodate [the family]," but added that there were "a lot of people that wanted to change their time slots." It was Respondent's policy to give priority to change of seating requests made for "medical reasons" over other change of seating requests and to grant them, if and when possible.
After Mr. Fioravanti told her about his discussion with the maitre d', Mrs. Fioravanti went to speak to the maitre d' herself to ask for an earlier dinner seating. She told the maitre d' that her family was "traveling with [her] son who was in a wheelchair and required an earlier dinner seating for medical reasons." The maitre d' responded that her husband had already "given him all that information" and that he would get back with the family to "let [it] know if [an earlier seating] was possible."
Not having heard back from the maitre d', the family went to their assigned table in the Carnivale to eat dinner at 8:00 p.m. that evening. Nicholas had already eaten in the cabin at around 6:00 p.m. His parents had fed him a peanut butter and jelly sandwich that they had ordered from room service. He had taken his medication along with his meal.
Richard Catalan, who is from the Philippines, was the Fioravantis' waiter on this evening, as well as on the third
evening of the cruise, the only other time that the Fioravantis ate dinner in the Carnivale.
Mrs. Fioravanti brought a portable food processor with her so that she could, if she needed to, purée food for Nicholas. Mrs. Fioravanti asked Mr. Catalan if there was anywhere in the dining room she could plug in the food processor. Mr. Catalan responded that there was an outlet at the waiters' "service station" next to the Fioravantis' table, but it was a 220-volt outlet. Mrs. Fioravanti then asked
Mr. Catalan if she could take food from the Carnivale back to her room to "grind" with the food processor. In response to this inquiry, Mr. Catalan told Mrs. Fioravanti that "no food could leave the dining room."4 Mr. Fioravanti joined the conversation and inquired whether the food processor could be brought to the kitchen and used there. Mr. Catalan answered that "there was no place for that to be done." Although the kitchen is equipped with its own food processor that the kitchen staff uses to, among other things, "blend the food" of passengers who request that their food be prepared in that manner, Mr. Catalan did not advise Mr. and Mrs. Fioravanti of the availability of this option. Following their discussion with Mr. Catalan regarding the use of their food processor,
Mr. and Mrs. Fioravanti did not, at any time during the cruise, pursue the matter further with the maitre d' or any other staff
member on board the ship, nor did they bring up the matter again with Mr. Catalan. Instead, they made their own "accommodations for [Nicholas'] food."
Mr. and Mrs. Fioravanti, however, did further pursue their request for an early dinner seating. On the morning of the second day of the cruise, they both went, separately, to see the maitre d' to check on the status of their request and reiterate what they had told the maitre d' the day before regarding why they were making the request. The maitre d' told them both that their request was still pending. In his conversation with Mrs. Fioravanti, the maitre d' "indicated that other people had booked their cruise[s] a year in advance" and he "couldn't just ask [these] people to switch tables with [the Fioravantis] because [the Fioravantis] wanted an earlier dinner seating." He did add, though, that if a change could be made, he would let the family know.
The maitre d' did not get back to the Fioravantis that
day.
The second night was the "formal night of the cruise," and passengers who ate dinner in the two main formal dining rooms were expected to dress appropriately. The Fioravantis did not want to get "dressed up," so, rather than eating in the Carnivale that evening, they opted instead to eat dinner on the Lido deck, which offered informal buffet dining with passengers'
being able to eat when and where they pleased. Mr. and
Mrs. Fioravanti fed Nicholas a peanut butter and jelly sandwich ordered from room service (along with applesauce and pudding they had brought from home) before the entire family went to the Lido deck to dine. While the rest of the family ate their dinners, Nicholas ate ice cream that came from a nearby "soft serve ice cream machine." Neither on this occasion, nor any other occasion that the family ate on the Lido deck, did Mr. or Mrs. Fioravanti use, or ask permission to use, a food processor.
After they were finished eating, Mr. and
Mrs. Fioravanti took Nicholas and his sister and brother "to see the show that night." Mrs. Fioravanti and Nicholas left the show after about ten minutes.
On the morning of the third day of the cruise, Mr. and Mrs. Fioravanti found the following note taped to their cabin door:
Dear Guest:
We sincerely regret not being able to assist you with your dining request. This is primarily due to the high guest count and unusual[ly] high demand to change seating.
However, if there is anything I can do to assist you otherwise then please do not hesitate to contact me.
Thank you for your understanding. Maitre D'
That evening (when the ship was en route from Grand Cayman5 to Cozumel), the Fioravantis returned to their assigned table (Table 224) in the Carnivale for the 8:00 p.m. dinner seating. Nicholas was fed a peanut butter and jelly sandwich and given his medication before the family went to the dining room.
As the family dined, Nicholas sat in his wheelchair at the end of Table 224, facing in the general direction of Table
226. Mrs. Fioravanti gave Nicholas some food to taste. To amuse himself, Nicholas watched the waiters go in and out of the kitchen through the revolving door.
Mr. Catalan was the waiter for the Fioravantis' table, as well as Table 226, that evening. When he brought the main course to Table 226, the passengers at the table stood up to leave. Mr. Catalan asked them what was wrong. They responded that there was nothing wrong with the food or service, but that they had "lost their appetite looking at Nicholas" eat. They asked Mr. Catalan if, the next time, Nicholas' wheelchair could be "turn[ed] . . . around" so that he would not be facing them. Mr. Catalan told them that he would inform the Fioravantis of their request.
After these passengers left the dining room,
Mr. Catalan approached Mrs. Fioravanti and asked her if she and her family "would be joining him in the dining room the next
evening for the later dinner seating." Mrs. Fioravanti responded in the affirmative, following which Mr. Catalan, who does not speak English particularly well, ill-advisedly asked her "if it would okay the following evening, when [the Fioravantis] came to the dining room," for Nicholas' wheelchair to be placed in a different position. Mr. Catalan "gestured with his hand" to indicate where he was suggesting that the wheelchair be positioned the following evening. It was his intention to inquire if the Fioravantis would mind simply turning around Nicholas' wheelchair the following evening so he would not be facing Table 226. The Fioravantis, however, understood Mr. Catalan to be asking for permission to move Nicholas away from the Fioravantis' table and behind a wall in the waiters' "service station" next to the table.
Mrs. Fioravanti asked why Mr. Catalan was making this request, to which Mr. Catalan insensitively responded that the passengers at Table 226 had left before eating dinner "because they did not want to look at [her] son." Mrs. Fioravanti became visibly upset and indicated that "under no circumstances" would she move Nicholas. Realizing that he had upset Mrs. Fioravanti with what he had said (which is something that he had not intended to do), Mr. Catalan told Mrs. Fioravanti, "I'm sorry if I say something wrong and this is from the other guest, not on my part."
Mrs. Fioravanti did not accept Mr. Catalan's apology. She got
up and left the Carnivale, taking Nicholas with her. The rest of family left a short time thereafter.
Mr. Catalan reported the incident to his supervisor, who reprimanded Mr. Catalan for having suggested that Nicholas be moved.
Later that evening, Mrs. Fioravanti complained about the incident to the purser staff, who "kept apologizing" to her for Mr. Catalan's conduct that evening. In making her complaint, Mrs. Fioravanti also mentioned to the purser staff that her family was still waiting to receive the early dinner seating it had requested. After checking with the maitre d', the purser staff informed Mrs. Fioravanti that there would be a table for the family at the early dinner seating the following day. In addition, the purser staff gave the family, "for [its] inconvenience," "seven complementary tickets [for] an excursion tour" in Cozumel the next day.
On the fourth day of the cruise, the family went on this "excursion tour" in Cozumel, using the free tickets provided by the purser staff.
After returning to the ship that day, Mrs. Fioravanti received a "follow-up phone call" from the purser staff, who asked her if the family had enjoyed the shore excursion and reminded her that the maitre d' had made arrangements for the
family "to attend the earl[y] dinner seating if [it] had wanted to do so."
The family chose to eat dinner on the Lido deck that evening. As the family was dining, the maitre d' walked up to Mrs. Fioravanti and said, "We missed you tonight at the earl[y] dinner seating." He then went on to apologize for "the events that [had] tak[en] place in the dining room the night before." He told Mrs. Fioravanti that these "matters were being addressed" and "extended an invitation" for the family to join him the following evening at the early dinner seating. The invitation was declined.
Following the cruise, Mrs. Fioravanti wrote Respondent a letter, "indicating [her] dissatisfaction with the cruise and requesting a full refund for the trip." After negotiating with Respondent over the telephone, Mrs. Fioravanti received a check in the mail from Respondent for $1,000.00. Since this was less than the amount she was seeking from Respondent, she did not cash the check.
CONCLUSIONS OF LAW
The Florida Civil Rights Act of 1992 (Act) is codified in Sections 760.01 through 760.11, Florida Statutes, and Section 509.092, Florida Statutes. § 760.01(1), Fla. Stat.
"The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the state
freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state. § 760.01(2), Fla. Stat.
The FCHR is empowered "[t]o receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice, as defined by the Florida Civil Rights Act of 1992." § 760.06(5), Fla. Stat. If it finds, following an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes, that a "discriminatory practice" has been committed, it must issue a final order "prohibiting the practice and providing affirmative relief from the effects of the practice."6 § 760.11(6), Fla. Stat. A prerequisite to obtaining such relief is the filing of a timely complaint. § 760.11(1), Fla. Stat. "[O]nly those claims that are fairly encompassed within a [timely-filed complaint] can be the subject of [an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes]" and any subsequent FCHR award of relief to the
complainant. Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994).
A "discriminatory practice," as that term is used in the Act, "means any practice made unlawful by the [Act]."
§ 760.02(4), Fla. Stat.
In the complaint filed in the instant case, the Fioravantis have alleged that, during their cruise on the Inspiration, Respondent engaged in practices made unlawful by Sections 509.092 and 760.08, Florida Statutes, by failing to grant their request for an early dinner seating; by denying them the opportunity to use a food processor in the Carnivale to purée Nicholas' food or, alternatively, to remove food from the Carnivale to purée it in their cabin; and by asking Nicholas to sit behind a wall during dinner because passengers at the adjacent table "did not want to look at [him]."
Section 509.092, Florida Statutes, provides as follows:
Public lodging establishments and public food service establishments are private enterprises, and the operator has the right to refuse accommodations or service to any person who is objectionable or undesirable to the operator, but such refusal may not be based upon race, creed, color, sex, physical disability, or national origin. A person aggrieved by a violation of this section or a violation of a rule adopted under this section has a right of action pursuant to s. 760.11.
In their Proposed Recommended Order, the Fioravantis make clear that they are claiming that they were victims of "public food service establishment" discrimination at the hands of Respondent:
Petitioners['] claims involve treatment and the denial of modifications of policies solely at the dining room "Carnivale" on the Carnival vessel "Inspiration." The treatment of the Fioravanti family in or Carnival's policies with regard to other public accommodations on the vessel owned by the Carnival Corporation is irrelevant in view of the discrimination faced by the Fioravantis in the Dining Room "Carnivale."
The Carnivale, however, is not a "public food service establishment," as that term is used in Section 509.092, Florida Statutes. Section 509.013(5)(b)(3), Florida Statutes, specifically excludes from the definition of "public food service establishment," as used in Chapter 509, Florida Statutes, "[a]ny eating place located on a[] . . . watercraft which is a common carrier." A "cruise ship is considered a common carrier." Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 905 (11th Cir. 2004); see also Shultz v. Florida Keys Dive
Center, Inc., 224 F.3d 1269, 1273 (11th Cir. 2000)("The vessels in Kornberg and in the other cases cited by plaintiff, however, were common carriers--e.g., ferries, ocean liners, or cruise ships."). Inasmuch as it is "located on a[] . . . watercraft which is a common carrier," the Carnivale is excluded from the
definition of "public food service establishment," as that term is used in Chapter 509, Florida Statutes. Accordingly, Respondent could not have violated Section 509.092, Florida Statutes, in the manner alleged by the Fioravantis.
There remains for consideration the Fioravantis' allegation that Respondent's actions also violated Section 760.08, Florida Statutes, which provides as follows:
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.
An owner or operator of a "place of public accommodation" may commit a violation of Section 760.08, Florida Statutes, by, among other things, "failing to make a requested reasonable modification that was necessary to accommodate [a disabled person's] disability." Chicvak v. Walt Disney World, No. 05-3966, 2006 Fla. Div. Adm. Hear. LEXIS 180 *11 (Fla. DOAH May 2, 2006)(Recommended Order); cf. Brand v. Florida Power
Corp., 633 So. 2d 504, 511 n.12 (Fla. 1st DCA 1994)("It should be noted that Florida's Human Rights Act[7] does not contain any explicit provision regarding an employer's duty to attempt reasonable accommodations for an employee's or applicant's handicap. Nevertheless, such duty can be reasonably implied
from various statutory provisions. In pronouncing the general purposes of the act, the legislature has broadly stated that it was designed 'to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status
and . . . to make available to the state their full productive capacities.' Indeed, the Florida Constitution, in defining an individual's basic rights, explicitly prohibits the deprivation 'of any right because of race, religion or physical handicap.' In fact, the Commission in the case below and in other cases has imposed on employers a reasonable accommodation requirement.
Moreover, other state courts, while noting that their handicap discrimination statutes contain no specific accommodation provision, nevertheless observe that the duty of the employer to make reasonable accommodation can be implied from the purpose of the statute itself.")(citations omitted).8 Treating disabled persons, because of their disabilities, differently than their otherwise similarly-situated non-disabled peers may also render an owner or operator of a "place of public accommodation" guilty of a violation of Section 760.08, Florida Statutes. See Yongmahapakorn v. Ramada at Amtel Marina, No. 04-3575, 2005 Fla. Div. Adm. Hear. LEXIS 860 *13-14 (Fla. DOAH April 11, 2005)(Recommended Order)("[I]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.").
A "place of public accommodation," as that term is used in Section 760.08, Florida Statutes, is defined in Section 760.02(11), Florida Statutes, which provides as follows:
"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:
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.
Any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food
for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment, or any gasoline station.
Any motion picture theater, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment.
Any establishment which is physically located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment.
The Carnivale is a "place of public accommodation," as defined in Section 760.02(11).
The provisions of Section 760.08, Florida Statutes, must be read in pari materia with Section 760.01(2), Florida Statutes, which describes the "general purposes" of the Act. See Florida Department of State v. Martin, 916 So. 2d 763, 768 (Fla. 2005)("The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature's intent."); Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992)("It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole."); and Department of Environmental Protection v. Matincheck, OGC No. 91-0846, 1994 Fla. ENV LEXIS 164 *6 (DEP
December 20, 1994)(Final Order)("The Legislative purpose set forth in § 403.913, F.S., to regulate, and thus protect, wetlands within the natural landward extent of the waters of the state, must be considered when interpreting § 403.817 and
§ 403.8171, F.S."). Doing so yields the conclusion that Section 760.08, Florida Statutes, applies only to acts committed "within the state"9 and does not have extraterritorial reach.10 The FCHR cannot, in the exercise of its authority to "act upon complaints alleging a[] discriminatory practice" described in Section 760.08, Florida Statutes, extend the statute's reach. See Cape
Coral v. GAC Utilities, Inc., 281 So. 2d 493, 495-496 (Fla. 1973)("All administrative bodies created by the Legislature are not constitutional bodies, but, rather, simply mere creatures of statute. This, of course, includes the Public Service Commission. As such, the Commission's powers, duties and authority are those and only those that are conferred expressly or impliedly by statute of the State. Any reasonable doubt as to the lawful existence of a particular power that is being exercised by the Commission must be resolved against the exercise thereof, and the further exercise of the power should be arrested.")(citations omitted); Ocampo v. Department of Health, 806 So. 2d 633 (Fla. 1st DCA 2002)("An agency can only do what it is authorized to do by the Legislature."); Florida Department of Insurance & Treasurer v. Bankers Insurance Co.,
694 So. 2d 70 (Fla. 1st DCA 1997)("In determining the extent of an agency's authority or jurisdiction, we start with the proposition that agencies are creatures of statute. Their legitimate regulatory realm is no more and no less than what the Legislature prescribes by law."); Schiffman v. Department of Professional Regulation, Board of Pharmacy, 581 So. 2d 1375 (Fla. 1st DCA 1991)("An administrative agency has only the authority that the legislature has conferred it by statute."); and Gulfstream Park Racing Association v. State, Department of Business Regulation, Division of Pari-Mutuel Wagering, 443 So.
2d 113, 117-118 (Fla. 3rd DCA 1983)("Administrative agencies, such as the Division, being creatures of statute, have only such power as the statutes confer. Any reasonable doubt about the lawful existence of a particular power that is being exercised by an administrative agency is to be resolved against its exercise.")(citations omitted).
The burden is on the complainant to prove that there has been a violation of Section 760.08, Florida Statutes, as alleged in the complaint. See Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.'"); Espinoza v. Department of Business & Professional Regulation, Florida Board
of Professional Engineers, 739 So. 2d 1250, 1251 (Fla. 3rd DCA 1999)("The general rule is that, apart from statute, the burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal."); and Florida Department of Health and Rehabilitative Services v. Career Service Commission,
289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal.'"). To do so, as a threshold requirement, the complainant must present proof that the complained-of acts were committed "within the state." The Fioravantis failed to present such proof in the instant case. While the record establishes that the Fioravantis were denied an early dinner seating in one of the two main formal dining rooms the first three nights of the cruise; that they were told by their waiter on the first night of the cruise that they could neither use a food processor in the Carnivale, nor remove food from the Carnivale to purée it in their cabin; and that they were asked on the third night of the cruise by their waiter if, the following evening, they would mind moving Nicholas because passengers at the adjacent table "did not want to look at [him]," the record is devoid of proof that any of these acts occurred while the Inspiration was in Florida territorial waters. Indeed, the record evidence affirmatively establishes that the events on the third night of the cruise occurred
outside Florida territorial waters (as the ship was traveling from Grand Cayman to Cozumel).
Because the record's lack of proof regarding the alleged discriminatory acts' occurring "within the state" is, by itself, fatal to the Fioravantis' claim under Section 760.08, Florida Statutes, the undersigned will only briefly touch upon other aspects of their evidentiary presentation.
There has been no showing that the early dinner seating and access to a food processor that the Fioravantis requested were necessary, due to Nicholas' disability, for him to have full and equal enjoyment of the Carnivale's goods, services, facilities, privileges, advantages, and accommodations. Regarding the early dinner seating request, while Nicholas had to take his medication with his dinner meal, there was no medical reason related to his disability why he could not eat dinner at 8:00 p.m. Regarding the request to use a food processor, there was no evidence presented that there was any item on the dinner menu that Nicholas wanted to eat, but could not without use of a food processor.
With respect to Mr. Catalan's request that the Fioravantis move Nicholas, it was just that--a request, not a demand, that the Fioravantis could refuse without suffering any adverse consequences; and Respondent did not take any adverse action against the Fioravantis in the aftermath of the request.
To be sure, Mr. Catalan displayed a gross lack of sensitivity in telling the Fioravantis that he was making the request because the passengers at the adjacent table "did not want to look at [Nicholas]." The comment, however, was an isolated one not intended by Mr. Catalan to offend the Fioravantis or discourage them from dining in the Carnivale. When viewed in light of the totality of circumstances, including Mr. Catalan's and Respondent's efforts to apologize to the Fioravantis, it was not sufficiently severe or pervasive to be actionable under Section 760.08, Florida Statutes. Cf. Speedway SuperAmerica, 933 So. 2d at 84 ("Although cases brought under Title VII and section
760.10 for sexual harassment, hostile work environment, are fact-specific in the extreme, the federal courts have set out a few guidelines. First and perhaps the most important, federal courts require that the conduct/harassment be more than merely insulting or rude and boorish behavior. These statutes were not intended to be 'general civility codes.' The required standard is to establish that the conduct/harassment was so severe or pervasive, that it adversely affected the terms or conditions of the employee's employment. The adverse effect on the employee must be subjective, as well as objective. Not only must the employee suffer from the harassment, but it is also required that a reasonable person in the shoes of the employee would likely have suffered from such conduct. . . . [T]he court must
look at the totality of the course of conduct and not micro- bites of behavior in isolation.").
In light of the foregoing, the Fioravantis' complaint should be dismissed in its entirety.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the FCHR issue a final order dismissing the Fioravantis' Public Accommodations Complaint of Discrimination.
DONE AND ENTERED this 7th day of December, 2006, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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 7th day of December, 2006.
ENDNOTES
1 All references to Florida Statutes in this Recommended Order are to Florida Statutes (2006).
2 The hearing was originally scheduled to commence on August 15, 2006, but was continued at Petitioners' request.
3 Although denominated as Respondent's Exhibits, Respondent's Exhibits 2, 12, 17, 23, 25, 28, and 31 were actually offered into evidence by Petitioners.
4 In fact, while Respondent preferred that passengers "keep the food in the dining room," it was Respondent's policy to allow passengers that "really want[ed] to take food out of the dining room" to do so, if they had a "valid reason," including a "medical reason."
5 The Fioravantis had gone on a "shore excursion" while the ship was docked in Grand Cayman.
6 The FCHR, however, has no authority to award monetary relief for non-quantifiable damages. See Simmons v. Inverness Inn, No. 93-2349, 1993 Fla. Div. Adm. Hear. LEXIS 5716 *4-5 (Fla. DOAH October 27, 1993)(Recommended Order)("In this case, petitioner does not claim that she suffered quantifiable damages, that is, damages arising from being terminated from employment, or from being denied a promotion or higher compensation because of her race. Rather, through argument of counsel she contends that she suffered pain, embarrassment, humiliation, and the like (non- quantifiable damages) because of racial slurs and epit[he]ts made by respondents. Assuming such conduct occurred, however, it is well-settled in Florida law that an administrative agency (as opposed to a court) has no authority to award money damages. See, e.g., Southern Bell Telephone & Telegraph Co. v. Mobile America Corporation, Inc., 291 So. 2d 199 (Fla. 1974); State, Dept. of General Services v. Biltmore Construction Co., 413 So. 2d 803 (Fla. 1st DCA 1982); Laborers International Union of N.A., Local 478 v. Burroughs, 541 So. 2d 1160 (Fla. 1989). This being so, it is concluded that the Commission cannot grant the requested relief, compensatory damages.").
7 The Act "was, before 1992, named the Florida Human Rights Act." Speedway SuperAmerica, LLC v. Dupont, 933 So. 2d 75, 100 (Fla. 5th DCA 2006).
8 In its Proposed Recommended Order, Respondent argues that the Act "does not require establishments to 'modify' their policies and practices to accommodate individuals with disabilities," citing, in support of its position, Section 413.08(2), Florida Statutes, which provides as follows:
An individual with a disability is entitled to full and equal accommodations, advantages, facilities, and privileges in all public accommodations. This section does not require any person, firm, business, or corporation, or any agent thereof, to modify or provide any vehicle, premises, facility, or service to a higher degree of accommodation than is required for a person not so disabled.
Section 413.08, Florida Statutes, however, is not part of the Act. Rather, it is a stand-alone statute that subjects violators of its provisions to criminal penalties.
9 The "state boundaries" are set out in Article II, Section 1, of the Florida Constitution, which provides as follows:
The state boundaries are: Begin at the mouth of the Perdido River, which for the purposes of this description is defined as the point where latitude 30 degrees 16'53" north and longitude 87 degrees 31'06" west intersect; thence to the point where latitude 30 degrees 17'02" north and longitude 87 degrees 31'06" west intersect; thence to the point where latitude 30 degrees 18'00" north and longitude 87 degrees 27'08" west intersect; thence to the point where the center line of the Intracoastal Canal (as the same existed on June 12, 1953) and longitude 87 degrees 27'00" west intersect; the same being in the middle of the Perdido River; thence up the middle of the Perdido River to the point where it intersects the south boundary of the State of Alabama, being also the point of intersection of the middle of the Perdido River with latitude 31 degrees 00'00" north;
thence east, along the south boundary line of the State of Alabama, the same being latitude 31 degrees 00'00" north to the middle of the Chattahoochee River; thence down the middle of said river to its confluence with the Flint River; thence in a straight line to the head of the St. Marys River; thence down the middle of said river to the Atlantic Ocean; thence due east to the edge of the Gulf Stream or a distance of three geographic miles whichever is the greater distance; thence in a southerly direction along the edge of the Gulf Stream or along a line three geographic miles from the Atlantic coastline and three leagues distant from the Gulf of Mexico coastline, whichever is greater, to and through the Straits of Florida and westerly, including the Florida reefs, to a point due south of and three leagues from the southernmost point of the Marquesas Keys; thence westerly along a straight line to a point due south of and three leagues from Loggerhead Key, the westernmost of the Dry Tortugas Islands; thence westerly, northerly and easterly along the arc of a curve three leagues distant from Loggerhead Key to a point due north of Loggerhead Key; thence northeast along a straight line to a point three leagues from the coastline of Florida; thence northerly and westerly three leagues distant from the coastline to a point west of the mouth of the Perdido River three leagues from the coastline as measured on a line bearing south 00 degrees 01'00" west from the point of beginning; thence northerly along said line to the point of beginning. The State of Florida shall also include any additional territory within the United States adjacent to the Peninsula of Florida lying south of the St. Marys River, east of the Perdido River, and south of the States of Alabama and Georgia.
The coastal boundaries may be extended by statute to the limits permitted by the
laws of the United States or international law.
10 Except with respect matters involving a vessel's "internal affairs," Section 760.08, Florida Statutes, applies to acts committed on foreign-flag vessels in (but not beyond) Florida territorial waters. Cf. Spector v. Norwegian Cruise Line Ltd.,
545 U.S. 119, 141-142 (2005)("The Court of Appeals for the Fifth Circuit held that general statutes do not apply to foreign-flag ships in United States waters. This Court's cases, however, stand only for the proposition that general statutes are presumed not to impose requirements that would interfere with the internal affairs of foreign-flag vessels. Except insofar as Title III [of the Americans with Disabilities Act] regulates a vessel's internal affairs--a category that is not always well defined and that may require further judicial elaboration--the statute is applicable to foreign ships in United States waters to the same extent that it is applicable to American ships in those waters."); and Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1243 (11th Cir. 2000)("We, therefore, conclude that Title III of the ADA is not inapplicable, as a matter of law, to foreign-flag cruise ships in United States waters.").
COPIES FURNISHED:
Matthew W. Dietz, Esquire
Law Offices of Matthew Dietz, P.L. 2990 Southwest 35th Avenue
Miami, Florida 33139
Susan Toepfer, Esquire
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 West Flagler Street Miami, Florida 33130
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk 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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 14, 2007 | Agency Final Order | |
| Dec. 07, 2006 | Recommended Order | Recommend that the complaint alleging public accommodation discrimination be dismissed, where Petitioner failed to prove that the complained of acts occurred within the State of Florida. |
