STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

LUIS FERRER,

Petitioner, FCHR Case No.

v. DOAH No.

PEPITO'S PLAZA, FCHR Order No.

Respondent.

/

FINAL ORDER DISMISSING PETITIO N FOR

RELIE F FROM AN UNLAWFUL PUBLIC ACCOMMODATIONS PRACTIC E

Preliminary Matters

Petitioner Luis Ferrer filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 509.092 and - Florida Statutes alleging that Respondent Plaza committed an unlawful public accommodations practice on the bases of Petitioner's race (not specified in complaint), sex (male) and national origin (Hispanic) by barring Petitioner from the establishment.

The allegations set forth in the complaint were investigated, and, on December 30, the Executive Director issued a determination finding that there was no reasonable

cause to believe that an unlawful public accommodations practice had occurred.

Petitioner filed a Petition for Relief and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held by video teleconference at sites in Miami and Tallahassee, Florida, on July 8, before Administrative Law Judge Robert E. Meale.

Judge Meale issued a Recommended Order of dismissal, dated October 27,

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order.

Findings of Fact

A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human

et al. 527 So. 2d 894, at 897, 898 5th DCA Accord, Coleman v. Daytona Beach, Ocean Center Parking Garage. FCHR Order No. 14-034 (September 10,

Gantz, et al. v. Zion's Hope. Inc., d/b/a Holy Land Experience, FCHR Order No.

Filed January 19, 2017 4:07 PM Division of Administrative Hearings

FCHR Order No. 17-009

Page 2

-048 (June and Hall v. Villages of West Oaks HOA. FCHR Order No. 08-007 (January 14, 2008).

We adopt the Administrative Law Judge's findings of fact.

Conclusions of Law

We the Administrative Law Judge's application of the law to the facts to result in a correct disposition of the matter.

We adopt the Administrative Law Judge's conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge's Recommended Order with the Division of Administrative Hearings on or about November in a document entitled, "Notice of Filing Exceptions to Recommended Order."

While the exceptions document was filed with the Division of Administrative Hearings instead of the Commission, the document was timely filed, and the Commission will consider the document even though it was filed in the wrong forum. Accord, generally, Bristol v. American Water, FCHR Order No. (July 9, Medina v. Department of Children and Families. FCHR Order No. (April 23, St Louis v. Florida Physician Medical Group. FCHR Order No. -078 (October 6,

Garcia v. Heart of Florida Medical Center. FCHR Order No. 10-061 (August 10, 2010) and Lane v. Terry Laboratories. Inc.. FCHR Order No. 08-022 (April 2008), and cases cited therein.

Petitioner's exceptions document contains four numbered exceptions, all of which take issue with inferences drawn from the evidence presented.

As indicated, above, no transcript of the proceeding before the Administrative Law Judge was filed with the Commission.

In the absence of a transcript of the proceeding before the Administrative Law Judge, the Commission is bound by the facts found in the Recommended Order, since there is no way for the Commission to determine the extent to which the facts found are supported by the testimony presented. See, e.g., v. Winn Dixie Stores. Inc..

FCHR Order No. 07-054 (October 2007), Herring v. Department of Corrections. FCHR Order No. (February and Holloman v. Lee Wesley

Burger King. FCHR Order No. (October 9,

With regard to findings of fact set out in Recommended Orders, the Administrative Procedure Act states, "The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law [emphasis added]." Section )(1), Florida Statutes As indicated, above, in the absence of a transcript of the

FCHR Order No.

Page 3

proceeding before the Administrative Law Judge, the Recommended Order is the only for the Commission to consider. See; National Industries, Inc., supra. Accord,

Hall, supra, Jones v. Suwannee County School Board, FCHR Order No. 06-088 (September 2006), Johnson v. Tree of Life. Inc.. FCHR Order No 05-087 (July 2005), supra, and Gantz. supra.

Further, the Commission has stated, is well settled that it is the Administrative Law Judge's function 'to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge's role to decide between them.' Beckton v. Department of Children and Family Services. 21 F.A.L.R. at 1736 (FCHR 1998), citing Maggio v. Martin Marietta

F.A.L.R. (FCHR 1986)." Barr v. Columbia Regional Medical Center. 22 F.A.L.R. at (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. (December 6, 2005) and Eaves v.

Central Florida Portfolio. LLC, FCHR Order No. (March

In addition, it has been stated, "The ultimate question of the existence of discrimination is a question of fact." Florida Department of Community Affairs v. Bryant. 586 So. 2d 1205, at 1209 1 s t DCA 1991). Accord, v. Bay County Board of County Commissioners. FCHR Order No. (March and supra.

It is also unclear whether Petitioner served Respondent with the exceptions document as there is no such indication on the document. See Fla. Admin. Code 28-

requiring a party filing a document to serve all other parties with the document and include a certificate of such service on the document.

Petitioner's exceptions are rejected.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida and in the Florida Rules of Appellate Procedure

DONE AND ORDERED this day

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

FCHR Order No. 17-009

Page 4

Commissioner Rebecca Steele, Panel Chairperson; Commissioner Derick Daniel; and

Commissioner Gilbert M . Singer

Filed this day in Tallahassee,

2017,

Clerk

Commission on Human Relations 4075 Esplanade Way, Room Tallahassee, FL 32399

(850) 488-7082

Copies furnished to:

Luis Ferrer

c/o Benjamin Korn, Esq.

The Law Offices of Benjamin Korn, PLLC 444 Brickell Avenue, Suite

Miami, FL

Plaza

c/o Carlos E. Burgos

10701 Northwest Street

FL 33178

Robert E. Meale, Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a the foregoing has been mailed to the above listed addressees this day of

By:

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 16-000589

Orders for Case No: 16-000589