STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

KATHLEEN

Petitioner, FCHR Case No.

v. AH No. 16-5001

SLIPS EATERY, INC., FCHR Order No.

Respondent.

/

FINAL ORDER DISMISSING PETITIO N FOR RELIE F FROM AN UNLAWFUL PUBLIC ACCOMMODATIONS PRACTIC E

Preliminary Matters

Petitioner Kathleen filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 509.092 and 760.01 - Florida Statutes

alleging that Respondent Slips Eatery, Inc., committed unlawful public accommodations practices on the basis of Petitioner's disability by failing to provide disabled parking spaces, by maintaining improper ramping as ingress and egress to the restaurant, and by having a round door knob on the door to the women's rest room.

The allegations set forth in the complaint were investigated, and, on July 29,

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

An evidentiary hearing was held in Pensacola, Florida, on October 3, before Administrative Law Judge Garnett W. Chisenhall, Jr.

Judge Chisenhall issued a Recommended Order of dismissal, dated November

2016.

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

Filed February 13, 2017 8:00 AM Division of Administrative Hearings

et al. v. Zion's Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. (June 6, 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 find the Administrative Law Judge's application of the law to the facts to result in a correct disposition of the matter.

We find this case to be troublesome.

As indicated above, 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.

The Administrative Law Judge found, "Upon their arrival, Ms. noticed that Slips Eatery had no parking spaces designated for the disabled." Recommended Order,

The Administrative Law Judge set out conclusions of law containing the state law requirement that Respondent have disabled parking spaces. See Recommended Order,

33 and

However, the Administrative Law Judge concluded that the Commission did not have the authority to enforce the state law requiring disabled parking spaces.

Recommended Order, through 40. In reaching this conclusion, the Administrative Law Judge seems to take the position that Petitioner was not alleging that Respondent violated the Florida Civil Rights Act of 1992, but instead was arguing that Petitioner was violating state and federal law provisions that require parking spaces designated for the disabled. Recommended Order, and 40.

Our review of the initial Complaint and the Petition for Relief suggests to us that Petitioner was alleging violations of the Florida Civil Rights Act of See Filings.

In a case in which a hotel had closed all its "wheelchair accessible 'handicap' rooms for renovation," a Commission Panel stated, "In our view, this action could be viewed as an unlawful public accommodations practice, since '[a]ll persons shall be entitled to full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined by this chapter, without discrimination or segregation on the ground of race, color, national origin, sex, handicap, familial status, or religion.' See Section 760.08, Florida Statutes (2014)." Garratt v. Best Western Oakland Park Inn, FCHR Order No. 15-020 (March 26, (The Commission Panel ultimately found that no unlawful public accommodations practice occurred in this instance because Petitioner had reserved a "standard" room and even i f accessible rooms had existed it was still possible that such a room would not have been available i f the rooms were filled by the time Petitioner arrived at the hotel.)

Like the Petitioner in Garratt, supra, even i f parking spaces designated for the disabled existed at Respondent restaurant, it would have been possible that such a space would not have been available to Petitioner i f the spaces were filled by the time Petitioner arrived at the restaurant.

There are insufficient facts contained in the Recommended Order to disturb the Administrative Law Judge's position on the other allegations, and in the absence of a transcript of the proceeding before the Administrative Law Judge there is no way to determine the extent of the evidence presented on these allegations.

these comments and modifications, we adopt the Administrative Law Judge's conclusions of law.

Exceptions

Neither of the parties filed exceptions to the Administrative Law Judge's Recommended Order.

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 Florida Statutes, and in the Florida Rules of Appellate Procedure

DONE AND ORDERED this day of , FOR THE FLORIDA COMMISSION ON

Commissioner Tony Jenkins, Panel Chairperson; Commissioner Donna and

Commissioner Jay Pichard

Filed this day

in Tallahassee, Florida.

Clerk

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

(850) 488-7082

Copies furnished to:

Kathleen

7255 Chestnut Road

Molino, FL 32577

Slips Eatery, Inc. c/o Robert Macon

Barrancas Avenue Pensacola, FL 32502

Garnett W. Chisenhall, Jr., Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a the foregoing has been mailed to the above

Clerk of the Commission

Florida Commission on Human Relations

Docket for Case No: 16-005001

Orders for Case No: 16-005001