STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case in Orlando, Florida, on June 13, 2008, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm, P.A.

125 East Marks Street Orlando, Florida 32803

For Respondent: Maureen M. Deskins, Esquire

Butler, Pappas, Weihmuller, Katz and Craig, LLP

777 South Harbor Island Boulevard Suite 500

Tampa, Florida 33602 STATEMENT OF THE ISSUE

Whether Respondent, a place of public accommodation, violated Section 760.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.

PRELIMINARY STATEMENT

On April 16, 2008, Petitioner, Shawn Sutton, a minor, timely filed a Petition for Relief from Public Accommodation Discriminatory Practice alleging that Respondent, Golden Corral Restaurant, violated the Florida Rights Act "by not making a reasonable accommodation for the petitioner when he was a guest at the restaurant on 7/08/07."

On April 4, 2008, Petitioner had been mailed a "Notice of Determination: No Cause" by the Florida Commission on Human Relations ("FCHR"), which indicated that "that there is no reasonable cause to believe that a public accommodation violation has occurred."

On April 22, 2008, FCHR forwarded the Petition for Relief to the Division of Administrative Hearings requesting assignment of an Administrative Law Judge to conduct proceedings required by law and to submit a recommended order. On April 23, 2008, an Initial Order was sent to both parties. Based on the parties' response to the Initial Order, the case was scheduled for final hearing on June 13, 2008.

The final hearing took place as scheduled. Petitioner presented two witnesses: Angela Thomas and Cedric Thomas, parents of Shawn Sutton. Petitioner did not offer any exhibits. Respondent presented three witnesses: Tangela King, Michael Cummins, and Jeff Cheatham. Respondent offered eight exhibits

which were received into evidence and marked Respondent's Exhibits 1 through 3 and 5 through 9. On June 27, 2008, Petitioner's attorney, Jerry Girley, filed an Affidavit as requested by the undersigned, regarding his survey of signs at Respondent's restaurants in the Orlando area.

The Transcript of the final hearing was filed on July 9, 2008. Both parties timely submitted Proposed Recommended Orders.

All references are to Florida Statutes (2006), unless otherwise indicated.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made:

1. Petitioner, Shawn Sutton, is physically disabled and entitled to the protection of the Florida Civil Rights Act.

2. Respondent is the owner of Golden Corral Restaurant, which is a structure for public accommodation.

3. On July 8, 2007, Petitioner, accompanied by his parents, grandmother and siblings, visited Respondent restaurant for the purpose of eating therein. The total number in the group that accompanied Petitioner was approximately 15.

4. Prior to July 8, 2007, Petitioner's family was a frequent customer of Respondent restaurant and had eaten there

   on approximately 50 occasions. There had never been a request for special accommodations for Shawn Sutton on any previous occasion.

5. Respondent has a sign on the front door of the restaurant that reads as follows: "Please remain with your party until seated. For guests with special needs, please see the manager. Golden Corral."

6. Respondent is a buffet restaurant. Patrons pay for meals upon entry and prior to being seated. Respondent has a seating policy that requires all persons on the same receipt of payment to remain seated together until a waitress takes their beverage order, verifies that all persons in the party are included on the receipt, and delivers a plate to each person. The members of a party are then free to sit wherever they choose.

7. On July 23, 2007, after a visit to the same restaurant on that day, Petitioner's mother emailed Golden Corral three times complaining about rudeness and lack of professionalism on the part of restaurant employees. In one email, she makes her only reference to the matter at issue in this case, indicating that when told that her son was disabled, a restaurant employee, "Tangie," "changed the entire tone and tried to accomidate [sic] us the best she could."

8. While Petitioner's disability is such that he needs assistance carrying his plate (and food) from the buffet line to his seat, he is able to feed himself without assistance.

9. On July 8, 2007, the entire family sat together and Petitioner was able to eat after his mother and grandmother assisted him in obtaining his food.

10. The evidence revealed that Petitioner's mother's complaint was substantially directed to the "rudeness" she perceived from Respondent's employees.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has subject matter jurisdiction pursuant to Subsection 120.57(1), Florida Statutes (2007).

12. Petitioner has the burden of proving the allegations of his Petition for Relief by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

13. The Florida Civil Rights Act of 1992, as amended (Chapter 760, Florida Statutes), was patterned after Title VII of the Civil Rights Act of 1964, and Federal case law interpreting Title VII is applicable to cases arising under the Florida Act. Green v. Burger King Corp., 728 So. 2d 369 (Fla. 3d DCA 1999); Laborers' Int'l Union of N. Am., Local 478 v.

    Burroughs, 522 So. 2d 852 (Fla. 3d DCA 1988); School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

14. Pertinent to the issue presented for determination are the following portions of the Florida Civil Rights Act, Subsection 760.08, Florida Statutes:

    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, color, national origin, sex, handicap, familial status, or religion

    
    

15. The burden of proof and the order of production in this case was established by the United States Supreme Court in McDonnell Douglass Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,

    36 L. Ed. 2d 668 (1973), as refined by the Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), and in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,

    125 L. Ed. 2d 407 (1993). In these three cases, the Court developed a three-step allocation of the burden of production.

16. Under the McDonnell Douglas model, the petitioner bears the initial burden of establishing a prima facie case of discrimination. Proof of a prima facie case under McDonnell Douglas raises a presumption that the respondent's decision was motivated by discrimination. St. Mary's Honor Center v. Hicks,

    509 U.S. at 502, 506. Demonstrating a prima facie case is not onerous; it requires only that Petitioner establish facts adequate to permit an inference of discrimination. McDonnell, supra, at 802.

17. The purpose of the three-step allocation of the burden of production is to assist Petitioner in proving unlawful discrimination when proof of discriminatory intent or motivation is required. Because the Court recognized that it is very difficult to prove discriminatory intent or motivation, the prima facie case of discrimination prescribed in McDonnell Douglas and Burdine requires only that Petitioner establish that he or she is a member of the protected class and has been denied the benefits available under the law. See St. Mary's Honor Center v. Hicks, 113 S. Ct. at 2746-49; Barth v. Gelb, 2 F.3d 1180, 1185-86 (D.C Cir. 1993). In Barth v. Gelb, the Court concluded that in the context of discrimination claims involving reasonable accommodations for the handicapped, including reasonable modifications, the traditional allocation of the burden of production should be followed. In so holding, the Court stated:

    These cases deal with objective claims that may be tested through the application of traditional burdens of proof . . . [A] plaintiff must establish that (a) he is handicapped but, (b) with reasonable accommodation (which he must describe), he is (c) able to perform "the essential

    functions" of the position he holds or seeks. . . As in the usual case, it would then be up to the employing agency to refute the evidence. The burden, however, remains with the plaintiff to prove his case by a preponderance of the evidence.

    
    

    Id. at 1186.

    
    

18. Once the presumption of discriminatory intent is raised, Respondent is able to rebut it by introducing admissible evidence of a reason, which if believed by the trier of fact, supports a finding that discrimination was not the cause of the challenged action. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir. 1987); and Equal Employment Opportunity Commission v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). Respondent is required only to produce admissible evidence, which would allow the trier of fact rationally to conclude that the decision complained of had not been motivated by discriminatory animus. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). "Respondent need not persuade the court that it was actually motivated by the proffered reasons . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 254. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983).

19. Where Respondent meets this burden, Petitioner has the opportunity to demonstrate that Respondent's articulated reason for the adverse action is a mere pretext for discrimination. McDonnell Douglas Corp. v. Green, supra, at 804; Roberts v.

    Gadsden Memorial Hospital, 835 F.2d 793, 796 (11th Cir. 1988). This demonstration merges with Petitioner's ultimate burden of showing that Respondent intentionally discriminated against Petitioner. St. Mary's Honor Center v. Hicks, 509 U.S. at 502, 511; Pignato v. American Trans Air, Inc., 14 F.3d 342, 347

    (7th Cir. 1994). Put another way, once Respondent succeeds in carrying its intermediate burden of production, the ultimate issue in the case becomes whether Petitioner has proven that Respondent intentionally discriminated against him because of his disability. Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994). Once Respondent produces evidence of a legitimate, nondiscriminatory reason 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. denied, 466 U.S.

    929 (1984); Navy Federal Credit Union, 424 F.3d at 405. The ultimate burden remains upon Petitioner to prove that Respondent intentionally discriminated against him. Burdine, supra,

    at 256. Stated another way, "[t]he ultimate question in a disparate treatment case is not whether [Petitioner] established

    a prima facie case or demonstrated a pretext, but 'whether the defendant intentionally discriminated against the plaintiff.'" Pashoian v. GTE Directories, 208 F. Supp. 2d 1293 (M.D. Fla.

    2002).

    
    

20. The elements of the prima facie case of unlawful discrimination are set out in Access Now, Inc. v. South Florida Stadium, 161 F. Supp. 2d 1357 (S.D. Fla. 2001), and other relevant case law. Accordingly, Petitioner has the burden of proving the following: 1) that he is disabled; 2) that Respondent restaurant is a place of public accommodation; and

    3) that he was denied full and equal treatment because of his disability. If the foregoing is demonstrated, Respondent must then produce evidence refuting the prima facie presumption of discriminatory intent.

21. There is no issue regarding the fact that Petitioner is disabled and protected by the Florida Civil Rights Act, nor that Respondent, a restaurant, is a public accommodation.

22. Petitioner has failed to prove by a preponderance of evidence that Shawn Sutton was the victim of discrimination based on his disability and, therefore, he has failed to carry the burden of demonstrating a prima facie case. He was able to eat his meal after his food had been obtained by a third person, something that would have been necessary wherever he was seated. Respondent's policy of requiring all individuals included in a

receipt of payment to initially be seated at the same table did not limit his ability to fully enjoy the goods, services, or privileges offered by Respondent.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent.

DONE AND ENTERED this 13th day of August, 2008, 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 13th day of August, 2008.

COPIES FURNISHED:

Cecil Howard, 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

Maureen M. Deskins, Esquire Butler, Pappas, Weihmuller

Katz and Craig, LLP

777 South Harbor Island Boulevard Suite 500

Tampa, Florida 33602

Jerry Girley, Esquire

The Girley Law Firm, P.A.

125 East Marks Street Orlando, Florida 32803

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: 08-002054

Orders for Case No: 08-002054