STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER OF DISMISSAL

This case is before the undersigned based upon Petitioner’s response to the Order to Show Cause filed on December 16, 2008. No hearing is necessary.

APPEARANCES

For Petitioner: Dorothy H. Baker, pro se

Post Office Box 350477 Palm Coast, Florida 32135

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction.

PRELIMINARY STATEMENT

In a letter dated October 8, 2008,1/ the Executive Director of the Florida Commission on Human Relations (FCHR) informed Petitioner that FCHR does not have jurisdiction to consider her discrimination complaint because Respondent is not a “public

accommodation.” On November 14, 2008, Petitioner filed a Petition for Relief (the petition) with FCHR.

On November 17, 2008, FCHR referred the petition to the Division of Administrative Hearings (DOAH). The referral was received by DOAH on November 19, 2008.

An Initial Order was entered on November 19, 2008. Neither party responded to the Initial Order.

On December 2, 2008, the undersigned entered an Order to Show Cause because it appeared from a review of the case file that the petition was not timely filed with FCHR and because the petition did not appear to raise any disputed issues of material fact as to whether Respondent was a “public accommodation.” Petitioner filed a response to the Order to Show Cause on December 16, 2008.

Due consideration has been given to Petitioner’s response to the Order to Show Cause. No hearing is necessary.

All statutory references are to the 2008 version of the Florida Statutes.

FINDINGS OF FACT

1. Petitioner alleges in the petition that she was “the victim of racial discrimination and unfair business practice” in August 2007 when she went into Respondent’s store to purchase a cellular phone and one of Respondent’s employees became hostile and yelled racial epithets at her for no apparent reason.2/

2. The petition refers to Respondent as “a phone store.”

   
   

3. The Executive Director of FCHR advised Petitioner in a letter dated October 8, 2008, that FCHR does not have jurisdiction to investigate her discrimination complaint. The letter explained the basis for this determination as follows:

   The information provided indicates that [Respondent] is strictly a retail store. It is not in the business of providing lodging, selling food for consumption on the premises, and is not a gasoline station or a place of exhibition or entertainment.

   Moreover, no covered establishment is located within [Respondent]’s actual physical boundaries. Therefore, [Respondent] is not a “public accommodation” as defined [in Section 760.02(11), Florida Statutes].

   
   

4. The petition was filed with FCHR on November 14, 2008.3/

   
   

5. The petition does not allege that Respondent is a “public accommodation” as defined by statute. Rather, as noted above, it characterizes Respondent as “a phone store.”

6. The petition includes two attachments. The first attachment provides a narrative of the alleged discrimination. The second attachment includes excerpts from Sections 760.01 and 760.06, Florida Statutes, and what amounts to legal argument concerning the scope of FCHR’s duties under those statutes and Section 760.07, Florida Statutes.

7. On December 2, 2008, the undersigned entered an Order to Show Cause because the petition did not appear to raise any

   disputed issues of material fact as to whether Respondent is a “public accommodation.”4/

8. The Order to Show Cause directed Petitioner to:

   
   

   show cause in writing as to why an Order Closing File or a Recommended Order of Dismissal should not be entered for the reasons set forth above and/or Petitioner shall file an amended petition that identifies the factual basis upon which she contends that Respondent is a “public accommodation” . . . .

   
   

9. The Order to Show Cause advised Petitioner that:

   
   

   Failure . . . to allege disputed issues of fact as to whether Respondent is a “public accommodation” will result in the entry of an Order Closing File or a Recommended Order of Dismissal.

   
   

10. Petitioner filed a response to the Order to Show Cause on December 16, 2008. The response does not include any factual allegations that would establish that Respondent is anything other than a retail store. The response simply includes what amounts to additional legal argument concerning the scope of FCHR’s jurisdiction.

11. Neither the petition, nor the response to the Order to Show Cause raises factual allegations that, if proven, would establish that Respondent is a “public accommodation” as defined by statute.

12. Moreover, based upon the petition’s characterization of Respondent as “a phone store,” there is no dispute concerning

    the determination in the Executive Director’s letter that Respondent “is strictly a retail store” and not a “public accommodation.” This is the only material issue as this case is presently postured.

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11(7), Florida Statutes.

14. The only issue properly before DOAH at this time is whether Respondent is a “public accommodation”, thereby giving FCHR jurisdiction over Petitioner’s discrimination complaint against Respondent; the merits of the complaint are not before DOAH at this time.5/

15. FCHR does not have any inherent authority, and like any other state agency, it only has jurisdiction over those matters specifically delegated to it by the Legislature. See, e.g., Dept. of Insurance & Treasurer v. Bankers Insurance Co., 694 So. 2d 70, 71 (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."); Gulfstream Park Racing Ass’n v. Dept. of Business Regulation, 443 So. 2d 113, 117-18 (Fla. 3d DCA 1983) (“Administrative agencies . . . 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.").

16. Petitioner is correct that the Florida Civil Rights Act (the Act) is to be “liberally construed to further [its] general purposes . . . and the special purposes of the particular provision involved.” § 760.01(3), Fla. Stat. See also Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000).

17. However, like any other statute, the Act must be construed in accordance with its plain meaning, and where the language of the statute is clear and unambiguous, it must be given full effect. See, e.g., Holly v. Auld, 450 So. 2d 217,

    219 (Fla. 1984) (“[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.").

18. FCHR has jurisdiction to investigate alleged violations of the Act, including Section 760.08, Florida Statutes, which prohibits public accommodation discrimination. See § 760.11, Fla. Stat.

19. Section 760.08, Florida Statutes, provides:

    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 . . . . (Emphasis supplied).

    
    

20. The scope of this statute is clear and unambiguous.

    
    

    It only prohibits discrimination by statutorily-defined “public accommodations”6/; it does not prohibit discrimination in all business contexts as Petitioner argues in the petition and the response to the Order to Show Cause.

21. Section 760.02(11), Florida Statutes, defines “public accommodations” to mean:

    places of public accommodation, lodging, 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 serve 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.

       
       

    2. 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.

       
       

    3. Any motion picture theater, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment.

       
       

    4. 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.

       
       

22. Sections 760.02(11) and 760.08, Florida Statutes, were enacted as part of the Dr. Marvin Davies Florida Civil Rights Act (Davies Act), which was referenced in Petitioner’s response to the Order to Show Cause. See Ch. 2003-396, Laws of Fla. The Davies Act also gave the Attorney General the authority to file civil actions for discrimination “as defined by the laws of this state.” Id. (creating Section 760.021, Florida Statutes). However, nothing in the Davies Act supports the conclusion that a retail store, such as Respondent, is a “public accommodation” for purposes of Section 760.08, Florida Statutes.

23. Based upon the doctrine of expressio unius est exlusio alterius,7/ the fact that retail stores are not specifically listed in Section 760.02(11), Florida Statutes, reflects a legislative intent that the statute does not encompass such establishments. Accord Sheely v. MRI Radiology Network, P.A.,

    505 F.3d 1173, 1204-05 (11th Cir. 2007) (affirming dismissal of

    public accommodation discrimination claim against a medical facility because the “narrow definition” of “public accommodation” in Section 760.02(11), Florida Statutes, does not include medical facilities).

24. The case referenced in Petitioner’s response to the Order to Show Cause has no bearing on the scope of FCHR’s jurisdiction under Section 760.08, Florida Statutes, because that case was an employment discrimination case, not a public accommodation discrimination case. See Carsillo v. City of Lake Worth, 33 Fla. L. Weekly D2154 (Fla. 4th DCA Sep. 10, 2008), withdrawn, 2008 Fla. App. LEXIS 18071 (Fla. 4th DCA Dec. 3, 2008).

25. Likewise, the New York statute referenced in Petitioner’s response to the Order to Show Cause -- Section 40 of the New York Civil Rights Law -- has no bearing on this case because this case is governed by Florida law, not New York law. The fact that another state specifically included “retail stores and establishments” in the definition of “public accommodations” for purposes of its anti-discrimination laws is irrelevant to the scope of FCHR’s jurisdiction under the Act.

26. FCHR has jurisdiction to investigate discrimination complaints arising in those contexts specifically set forth in Chapter 760, Florida Statutes, e.g., employment, public accommodations, housing, and lending. It does not have a “wider

    mandate” to act on “any violation of Florida Statute concerning discrimination” as Petitioner argued in the petition.

27. In sum, because Petitioner has failed to allege facts that, if proven, would establish that Petitioner is a “public accommodation” subject to Section 760.08, Florida Statutes, FCHR lacks jurisdiction over Petitioner’s discrimination complaint, and the petition should be dismissed.

28. Normally, dismissal of a petition is, at least once, without prejudice. See § 120.569(2)(c), Fla. Stat.

29. However, dismissal of the petition with prejudice is appropriate in this case because the Order to Show Cause gave Petitioner an opportunity to file “an amended petition that identifies the factual basis upon which she contends that Respondent is a ‘public accommodation,’” but Petitioner failed to do so.

30. Alternatively, it is appropriate to relinquish jurisdiction to FCHR pursuant to Section 120.57(1)(i), Florida Statutes, because there are no disputed issues of material fact as to whether Respondent is a “public accommodation” as defined by statute. See Order to Show Cause, at 2 (“Petitioner is entitled to a hearing to contest the jurisdictional determination made by the Executive Director. However, Petitioner is only entitled to a “formal hearing” at [DOAH] if there are disputed issues of fact. If there are no disputed

issues of fact, DOAH is required to relinquish jurisdiction to FCHR for an “informal hearing” under Section 120.57(2), Florida Statutes, if necessary.” (citations and endnote omitted)).

RECOMMENDATION

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

RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice

DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2008.

ENDNOTES

1/ This was the date on the letter included in the case file referred to DOAH by FCHR. Petitioner provided a copy of an identical letter dated October 21, 2008, as part of her response to the Order to Show Cause. Both letters make reference to a “previous determination” made by FCHR regarding the jurisdictional issue at some point prior to May 14, 2008, but the case file does not include a copy of that determination.

2/ No determination is made concerning the truth of these allegations in light of the procedural posture of this case.

3/ This date is more than 35 days after the October 8, 2008, letter, but is only 25 days after the October 21, 2008, letter referenced in Endnote 1.

4/ The Order to Show Cause also questioned whether the petition was timely filed with FCHR. Petitioner addressed that issue by providing the October 21, 2008, letter.

5/ This point was explained in the Order to Show Cause as follows:

The scope of the proceeding is limited to the jurisdictional issue -- i.e., whether Respondent is a “public accommodation” over which FCHR has jurisdiction. The merits of Petitioner’s discrimination complaint are not yet at issue. If this case goes to hearing and Petitioner prevails on the jurisdictional issue, the case will be returned to FCHR with a recommendation that FCHR investigate the merits of Petitioner’s complaint. Otherwise, the case will be returned to FCHR with a recommendation that the case be dismissed due to a lack of jurisdiction.

6/ DOAH and FCHR are bound by the statutory definition of this term. See Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So. 2d 376, 377-78 (Fla. 5th DCA 1998) (“Where the legislature has used particular words to define a term, [the courts] do not have the authority to redefine it.”).

7/ This is a maxim of statutory construction meaning that the expression of one thing means the exclusion of another. Under this maxim, where certain things are specified in a law, it is inferred that all other things are excluded from the law. See, e.g., Sova Drugs v. Barnes, 661 So. 2d 393, 395 (Fla. 5th DCA 1995).

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Dorothy H. Baker

Post Office Box 350477

Palm Coast, Florida 32135-0477

Tom Mayman

Maycom Communication/Sprint-Nextel

1030 Palm Coast Parkway Northwest, No. 5 Palm Coast, Florida 32137-4728

Larry Kranert, 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: 08-005809

Orders for Case No: 08-005809