STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to Notice, a hearing was held on June 19, 2008, before the Honorable Diane Cleavinger, Administrative Law Judge, Division of Administrative Hearings in Panama City, Florida.

APPEARANCES

For Petitioner: David Alan Johnson, pro se

20417 Panama City Beach Parkway No.8 Panama City Beach, Florida 32413

For Respondent: Melton Harrell, Authorized Agent

The Intown Companies, Inc. d/b/a Valu Lodge

American Motel Management, Inc. 2200 Northlake Parkway S-277 Tucker, Georgia 30084-4023

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner because of his race, sex or religion.

PRELIMINARY STATEMENT

On September 22, 2007, Petitioner, David Alan Johnson, (Petitioner) filed a Public Accommodation Complaint of Discrimination against Respondent, The Intown Companies, Inc. (Respondent), with the Florida Commission on Human Relations (FCHR). The Complaint alleged that Respondent denied him accommodations at its motel based on his race, national origin or religion when he was evicted from the property pursuant to a court order awarding Respondent possession of the premises. On March 6, 2008, the Florida Commission filed a Notice of Determination: No Cause, which advised Petitioner that he had

35 days from the date of the Notice to request an administrative hearing. On April 1, 2007, Petitioner filed a Petition for Relief alleging the same types of discrimination that were contained in his earlier complaint. The Petition for Relief was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and offered four exhibits into evidence, marked Petitioner’s Exhibits A, B, C and D. Respondent offered the testimony of one witness and offered seven exhibits into evidence, marked Respondent’s Exhibits 1, 2, 3, 4, 5, 6, and 7. Respondent’s Exhibit 5 was found to be irrelevant and not admitted into evidence.

After the hearing, Petitioner filed his Proposed Recommended Order on July 1, 2008. Respondent filed its Proposed Recommended Order on July 3, 2008.

FINDINGS OF FACT

1. Respondent owns and operates the Valu-Lodge Motel located at 4810 West Highway 98, Panama City Beach, Florida. The motel offers rooms for rent to the public and is a "transient public lodging establishment" within the meaning of Florida Statutes.

2. Petitioner is a white male. His national origin is American. Although Petitioner’s complaint and petition indicate that Petitioner espouses to be a member of the Church of Christ, there was no evidence presented at the hearing regarding Petitioner’s religion.

3. On September 9, 2004, Petitioner rented a motel room from Respondent at its Panama City Beach motel. The rental term was week to week.

4. At some point, Respondent felt Petitioner had become disruptive to the operation of the hotel and to its guests. On November 25, 2005, Respondent informed Petitioner that it would no longer rent a room to Petitioner and hand-delivered a Notice of Termination of Lease to Petitioner. The Notice stated that Petitioner must vacate the premises by December 1, 2005. Petitioner refused to vacate the motel premises. On December 9,

   2005, Respondent hand-delivered a Fifteen Day Notice for Possession of Premises to Petitioner. The Notice indicated that no further rent would be accepted. Petitioner again refused to vacate the premises. Petitioner also did not pay any further rent to Respondent.

5. Respondent filed an eviction proceeding against Petitioner. The first and second eviction proceedings appear to have been dismissed for procedural reasons. However, the third eviction proceeding was successful. During that proceeding, Petitioner had the opportunity to defend against eviction based on the claims of discrimination raised in this matter.

6. However, on June 22, 2007, after hearing, Respondent received a final judgment, awarding the Intown Companies, Inc.,

   $19,213.18 in unpaid rent, plus interest. Respondent also received a Final Judgment of Eviction awarding the Company possession of the premises and court costs. A Writ of Possession was issued on June 25, 2007, and Petitioner vacated the premises on June 27, 2008.

7. There was no evidence presented by Petitioner that demonstrated Respondent discriminated against Petitioner in any manner. There was absolutely no evidence of any racial, nationalistic or religious bias on the part of Respondent. Apparently, Petitioner believes that he is entitled to rent a room from Respondent simply because he is a member of the public

   and desires to rent a room from Respondent. Neither the facts, nor the law supports Petitioner’s misinformed view of the view of the law. Given the utter lack of evidence presented by Petitioner, the Petition for Relief should be dismissed.

   CONCLUSIONS OF LAW

   
   

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

9. Section 760.08, Florida Statutes, provides:

   
   

   all persons shall be entitled to the full and equal enjoyment of goods, services, facilities, privileges, advantages,

   and accommodations of any place of public accommodation, . . . without discrimination or segregation on the ground of race, color, national origin, sex, handicap, familial status, or religion.

   
   

10. Section 509.013(4)(a)1., Florida Statutes, defines "transient public lodging establishment" as follows:

    . . . any units, group of units, dwelling, building, or group of buildings . . ., which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or is advertised or held out to the public as a place that regularly rented to guests.

    
    

    Clearly, Respondent’s motel is a transient public lodging establishment offering accommodations to the public as defined in Florida Statutes. As such, it is subject to the Florida Civil Rights Act.

11. However, Section 509.092, Florida Statutes, provides that a motel operator "has the right to refuse . . . service to any person who is objectionable or undesirable to the operator[.]" Read together, it is clear that a motel may refuse to serve potential customers for a variety of reasons, but may not refuse service based on the customer's race, religion, sex, physical disability, or national origin. There is no federal law that further limits the rights of motel owners.

12. Indeed, The Florida Civil Rights Act is based on federal anti-discrimination statutes, Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq. and 42 U.S.C.

    § 1981. See Stevens v. Steak N Shake, Inc., 35 F. Supp. 2d 882, 886 (M.D. Fla. 1998)("[T]his Court looks to established federal public accommodation law in order to determine the meaning of the term 'such refusal may not be based upon race, creed, [or] color . . .' in Florida Statutes, Section 509.092, and to determine the elements of [the plaintiffs'] civil rights claims under the Florida Statutes."); see also Laroche v. Denny's, Inc., 62 F. Supp. 2d 1375 (S.D. Fla. 1999) (in case where restaurant was alleged to have refused service to black customers, court treated Plaintiffs federal and state law claims as having identical substantive elements), rev'd in part, vacated in part, 281 F.3d 1285 (11th Cir. 2001).

13. In McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court of the United States articulated the burden of proof for cases involving allegations of discrimination under Title VII cases. Under that case, a Plaintiff has the initial burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If the plaintiff establishes a prima facie case, then the respondent must go forward and articulate a legitimate nondiscriminatory reason for the action taken by the respondent. Once the respondent has articulated a legitimate nondiscriminatory reason, the plaintiff then must establish by a preponderance of the evidence that the reason given is not true or merely pretextual. The same framework also applies to complaints regarding discrimination in public accommodations. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); see also generally Brown v. American Honda Motor Co., 939 F.2d 946, 949 (11th Cir. 1991) (applying Title VII procedural framework to Section 1981 case; granting summary judgment for defendant).

14. As held in Laroche v. Denny's, Inc., 62 F. Supp. 2d 1375 (S.D. Fla. 1999), a petitioner must initially establish by a preponderance of the evidence that:

    1. they are a member 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.

       
       

15. As a white male and an American, Petitioner is a member of a protected class. He attempted to continue to rent a room at Petitioner’s motel. Petitioner was denied the right to continue to rent a room and was, therefore, denied the full benefits or enjoyment of a public accommodation. However, Petitioner failed to prove the fourth element of his prima facie

    case of race or national origin-based denial of service because he presented no evidence regarding the race or national origins of other patrons of the motel. Indeed, given the fact that the Panama City area is a well-known tourist attraction visited by a variety of people from all races and nations, it is likely that other white Americans rented rooms from Respondent and received the benefits of those accommodations. See, e.g., Rosado Maysonet v. Solis, 409 F. Supp. 576, 579-80 (D. P.R. 1975) (finding no inference of racial discrimination where plaintiffs were excluded from casino due to refusal to comply with dress code and "rowdy" intoxicated behavior); Evans v. Holiday Inns, Inc., 951 F. Supp. 85 90 (D. Md. 1997) (granting motion for

    summary judgment where plaintiffs failed to establish prima facie case of discriminatory enforcement of a motel policy regarding sanctions for noise and obnoxious behavior).

16. Moreover, the record was clear that Petitioner stayed at Respondent’s motel for approximately a year and half after he was asked to leave. During that time, he paid no rent to Respondent for his accommodations. Eventually, Petitioner was lawfully evicted for non-payment of rent. None of these facts establish any discriminatory intent on the part of Respondent.

17. Finally, Petitioner did not present any evidence regarding his religion or the religion of any other guest of the motel. Given the lack of evidence in this case, the Petition for Relief should be dismissed.

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 the Petition for Relief.

DONE AND ENTERED this 3rd day of September 2008, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 3rd day of September 2008.

COPIES FURNISHED:

Larry Kranert, 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

David Alan Johnson

20417 Panama City Beach Parkway No. 8 Panama City Beach, Florida 32413

Melton Harrell, Authorized Agent

The Intown Companies, Inc. d/b/a Valu Lodge American Motel Management, Inc.

2200 Northlake Parkway S-277 Tucker, Georgia 30084-4023

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: 08-001751

Orders for Case No: 08-001751