STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS TAYLOR,

Petitioner,

vs. TRAVELODGE,

Respondent.

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) Case No. 07-3507

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CONSTANCE TAYLOR,

Petitioner,

vs. TRAVELODGE,

Respondent.

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) Case No. 07-3508

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RECOMMENDED ORDER

An administrative hearing was conducted in these cases on October 16, 2007, in Orlando, Florida, before Jeff B. Clark, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Constance and Louis Taylor, pro se

5368 Aoelus Way

Orlando, Florida 32808

For Respondent: Martin R. Cole, pro se

Travelodge

401 Gulfview Boulevard Clearwater Beach, Florida 33767

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioners on the basis of their race in violation of Chapter 760, Florida Statutes (2006).

PRELIMINARY STATEMENT

Petitioners each filed a Petition for Relief dated July 20, 2007, alleging that Respondent violated the Florida Civil Rights Act of 1992 when, as stated in Petitioner Louis Taylor's Petition, it "refused to rent my family a room, but continued to rent to people of other races. Rooms was [sic] still available throughout the evening after renting to other races."

Each Petition for Relief was forwarded to the Division of Administrative Hearings by the Florida Commission on Human Relations on July 27, 2007, and received on July 30, 2007. An Initial Order was sent to all parties on July 30, 2007.

On August 8, 2007, an Order of Consolidation was entered consolidating the cases for final hearing. On August 22, 2007, a Notice of Hearing was entered scheduling the cases for final hearing on September 20, 2007, in Orlando, Florida. Respondent, through its representative, Martin R. Cole, requested a continuance. The cases were rescheduled on October 16, 2007.

The cases were heard, as rescheduled, on October 16, 2007.

During the hearing, each Petitioner testified.

Respondent, through Martin R. Cole, its owner, testified.

Respondent offered four exhibits that were received into evidence, without objection, and marked as Respondent's Exhibits 1 through 4.

No Transcript of the proceeding was filed. Neither party filed any post-hearing submittals.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made:

1. Respondent, "Travelodge," is a Florida corporation: Canterbury Oak, Inc., d/b/a Travelodge. It is a public lodging establishment.

2. Petitioners, Louis and Constance Taylor, are an African-American husband and wife and are members of a protected class.

3. In the early afternoon, Sunday, July 16, 2007, Petitioners and their children arrived in Clearwater Beach and attempted to register and obtain a room at the Travelodge for two nights. They did not have reservations.

4. On that particular weekend, there was a youth soccer tournament in Clearwater Beach, and the Travelodge had all rooms occupied on Saturday, July 15, 2007, with 44 of the 54 rooms being vacated the morning of July 16, 2007.

5. Typical check-out time is 11:00 a.m.; extra housekeeping staff had been hired to prepare the rooms for

   Sunday occupancy. The fact that Sunday morning "check-outs" were largely youth soccer participants made the room clean-up and preparation particularly time consuming.

6. Guests, without reservations, arriving in the early afternoon were told that no rooms would be available until after 3:00 p.m.

7. Petitioner Louis Taylor, who actually entered the Travelodge lobby and requested accommodations (Petitioner Constance Taylor remained in the car with their children), testified that the desk clerk (Craig Harmul) was on the telephone when Petitioner asked if a room was available for two nights. Petitioner testified that the desk clerk said "no." Petitioner Louis Taylor decided not to "push the issue" and returned to the car. Petitioners then checked into another local motel.

8. Petitioners had stayed at the Travelodge on several previous occasions; it was their favorite motel in Clearwater Beach, and they and their children were disappointed.

9. Petitioner Constance Taylor then called the "1-800 national reservations service" for Travelodge and was advised that rooms were available. Later that day she called Kathy Mittler, Respondent's general manager, and suggested that they had been denied accommodations because of their race.

   Ms. Mittler explained that everyone was told that they would

   have to wait until 3:00 p.m., and advised that rooms were available and that Petitioners could come and get a room.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat. (2007).

11. Section 509.092, Florida Statutes (2006), provides:

    
    

    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.

    
    

12. The court in LaRoche v. Denny's, Inc., 62 F. Supp. 2d 1375, 1382-1383 (S.D. Fla. 1999), a case dealing with racial discrimination, sets forth the analysis which should be used in public accommodations cases in Florida:

    Under the McDonnell Douglas framework, as further elucidated in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207

    (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742,

    125 L.Ed.2d 407 (1993), the Plaintiffs must prove by a preponderance of the evidence a prima facie case of discrimination. Specifically, the Plaintiffs must prove

    that: (1) they are members of a protected class; (2) they attempted to contract for services and to afford themselves the full benefits and enjoyment of a public accommodation; (3) they were denied the right to contract for those services and, thus, were denied the full benefits or enjoyment of a public accommodation; and

    (4) such services were available to similarly situated persons outside the protected class who received full benefits or enjoyment or were treated better. United States v. Lansdowne Swim Club, 894 F.2d 83, 88 (3rd Cir. 1990).

    
    

    Once the Plaintiffs meet this burden, they establish a presumption of intentional discrimination. Hicks, 509 U.S. at 506, 113 S.Ct. 2742. The effect of this presumption shifts the burden to the Defendant to produce evidence of a legitimate, non- discriminatory reason for the challenged action. Id. at 506-507, 113 S.Ct. 2742;

    McDonnell Douglas, 411 U.S. at 802,

    93 S.Ct. 1817; Burdine, 450 U.S. at 254,

    101 S.Ct. 1089. The Defendant's burden of production is a light one. Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir. 1994).

    
    

    When a defendant meets its burden of production, the presumption of discrimination which the McDonnell Douglas framework creates, "drops from the case" and "the factual inquiry proceeds to a new level of specificity." Burdine, 450 U.S. at 255,

    n. 10, 101 S.Ct. 1089. The burden then shifts back to the Plaintiffs to demonstrate that the Defendant's actions were not for the proffered reason, but were, in fact, motivated by race. Hicks, 509 U.S. at

    507-08, 113 S.Ct. 2742; Burdine, 450 U.S. at

    253, 101 S.Ct. 1089. Plaintiffs may prove this fact either by means of affirmative evidence that race played an impermissible role in Mr. Ibarra's action, or by showing that the proffered non-discriminatory reason does not merit credence. Id. at 256,

    101 S.Ct. 1089. The ultimate burden is on the Plaintiffs to prove that they were the victims of intentional discrimination.

    
    

13. Petitioner may make a prima facie showing of housing discrimination sufficient to meet the first part of the

    three-part McDonnell Douglas burden of proof test by establishing that they applied to rent an available unit which they were qualified to rent, their application was rejected although units remained available for rent, and at the time of such rejection, they were members of a protected class. Soules v. United States Department of Housing and Urban Development, 967 F.2d 817, 822 (2d Cir. 1992).

14. In the present case, Petitioners are members of a protected class, African-American. Mr. Taylor was advised that a room was not available by a desk clerk who was on the telephone when the discussion took place. Later, Mrs. Taylor called Travelodge national reservations and was advised that rooms were available. Petitioners believed that they had been denied a room because of their race. Other than their assumption, no other evidence is offered to support their contention that the denial was racially motivated. Assume, arguendo, that Petitioners have established a prima facie case of intentional discrimination and denial of public accommodations based on their race.

15. Respondent now has the burden of producing evidence of a legitimate, non-discriminatory reason(s) for the denial of the room to Petitioners. Respondent has provided ample evidence of non-discriminatory reasons for the challenged action. First, Respondent's desk clerk was on the telephone, in the process of checking out 80 percent of the motel capacity and would have been very busy when Petitioner made inquiry; second, while

    Mr. Taylor advises that he was just told "no," when he inquired regarding room availability, Respondent maintains that Petitioner, and all other individuals who did not have reservations requesting accommodations that day, were advised that rooms would be available after 3:00 p.m.; third, when

    Mrs. Taylor called Respondent's resident manager, she advised that all individuals requesting rooms were advised that they would know at 3:00 p.m., and was offered a room.

16. Importantly, Petitioners had stayed at Respondent's motel on several other occasions and testified that it was "their favorite motel on Clearwater Beach" (or words to that effect).

17. Respondent's explanation is sufficiently credible when all the evidence is considered. Petitioners' case is weak, at best. Other than the reported call to the national reservations center, there is no credible evidence that a room was immediately available. Respondent's denial makes sense when

    supported by evidence of full occupancy the night before, the fact that additional housekeeping staff had been hired to do the clean-up, the potential for confusion at the time the room inquiry was made, Petitioners' history of satisfaction, and the resident manager's offer of a room.

18. Petitioners have the burden of proving by the preponderance of the evidence that Respondent denied them public accommodations based on their race. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

19. Petitioners have failed to prove racial discrimination. Respondent has produced evidence of legitimate, non-discriminatory reasons for the challenged action, any presumption of discrimination arising out of the prima facie

case "drops from the case." See Krieg v. Paul Revere Life Ins. Co., 718 F.2d 998, 1001 (11th Cir. 1983), cert. den., 466 U.S.

929 (1984). The ultimate burden remains upon Petitioners to prove that Respondent denied them public accommodations based on their race. They have failed to do so.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing both Petitions for Relief.

DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 15th day of November, 2007.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Martin R. Cole Travelodge

401 Gulfview Boulevard Clearwater Beach, Florida 33767

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: 07-003507

Orders for Case No: 07-003507