STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

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

Administrative Hearings.

APPEARANCES

For Petitioner: Ricky Krell, pro se

1889 Cedarwood Drive

Melbourne, Florida 32935

For Respondent: Katherine Hurst Miller, Esquire

Kelly V. Parsons, Esquire Cobb Cole

150 Magnolia Avenue Post Office Box 2491

Daytona Beach, Florida 32115-2491 STATEMENT OF THE ISSUE

Whether Respondent, a place of public accommodation, violated Chapter 760 and Section 413.08, Florida Statutes

(2006), by failing to accommodate Petitioner, an individual with a disability.

PRELIMINARY STATEMENT

On May 27, 2008, Petitioner, Ricky Krell, filed a Petition for Relief from Public Accommodation Discriminatory Practice alleging that Respondent, Dustin's Barbeque, violated the Florida Civil Rights Act by "put[ting] a No Trespass Order on me, because I have a service dog."

On May 23, 2008, Petitioner had been mailed a "Notice of Determination: No Cause" by the Florida Commission on Human Relations ("FCHR"), which indicated that "there is no reasonable cause to believe that a public accommodation violation has occurred."

On June 3, 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 June 5, 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 August 13, 2008, in Viera, Florida.

The final hearing took place as scheduled. Petitioner presented two witnesses: himself and his wife, Angela Krell. Respondent presented seven witnesses: Toni Withey, Kimberly Burk, Rebecka Massanova, Gail Golden, Michael Overton, Gregory

Helwig, and Chris Tomlinson. Respondent offered nine exhibits which were received into evidence and marked Respondent's Exhibits 1 through 9. At the close of Petitioner's case, Respondent moved for a recommended order of dismissal. Ruling on Respondent's motion was reserved until the publication of this Recommended Order. Respondent's motion is granted as set forth herein.

The Transcript of the final hearing was filed on October 8, 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, Ricky Krell, is physically disabled and entitled to the protection of the Florida Civil Rights Act.

2. Respondent is the owner of Dustin's Barbeque, which is a structure for public accommodation.

3. On June 5, 2007, Petitioner, accompanied by his wife and his service dog, Zsa-Zsa, visited Respondent restaurant for the purpose of eating therein. Petitioner and his wife were seated and ordered their meal without incident.

4. Zsa-Zsa was on a leash which was several feet in length, long enough to allow the dog to "sniff" other customers and food.

5. Zsa-Zsa began "sniffing" contiguous customers and their food. The lease was stretched across the aisle between tables. On one occasion, a waitress almost tripped over the leash.

6. Respondent's employees, who were familiar with service dogs having been in the restaurant, opined that the dog did not conduct itself as a trained service dog.

7. As a result of the dog's activities and concern for the health and safety of other customers and employees, Respondent's on-site manager requested that Petitioner control the dog.

8. Petitioner was unwilling or unable to control the dog, and the dog's inappropriate conduct continued. As a result, the manager asked Petitioner to take the dog outside. Petitioner would have been able to complete his meal if he had been able to control the dog or he had opted to take the dog outside and return to his meal without the dog.

9. Petitioner refused the request to take the dog outside and became loud and used profanity. Petitioner finished his meal. The request that Petitioner remove the dog from the restaurant was reasonable under the existing circumstance and did not reflect a discriminatory act against Petitioner.

10. The City of Melbourne police were called and when the officer arrived, she issued a trespass warning to Petitioner and his wife.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.57(1), Florida Statutes (2008).

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 evidentiary issue raised by Respondent 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 that he was the victim of discrimination based on his disability and, therefore, he has failed to carry the burden of demonstrating a prima facie case.

23. Section 413.08, Florida Statutes, allows service dogs needed to assist a disabled person in a place of public accommodation. Petitioner was seated with his service dog,

    Zsa-Zsa, ordered and was able to start eating his meal without limitation. Respondent routinely allows service dogs on its premises.

24. Subsection 413.08(3)(e), Florida Statutes, reads, in pertinent part, as follows: "A public accommodation may exclude or remove any animal from the premises, including a service

    animal, if the animal's behavior poses a direct threat to the health and safety of others."

25. It was only when the dog became disruptive and posed a threat to the health and safety of others that Petitioner was asked to take the dog outside. But for Petitioner's lack of control of his service dog, Petitioner would have had the full benefit of the restaurant.

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 25th day of November, 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

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2008.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Katherine Hurst Miller, Esquire Kelly V. Parsons, Esquire

Cobb Cole

150 Magnolia Avenue Post Office Box 2491

Daytona Beach, Florida 32115-2491

Ricky Krell

1889 Cedarwood Drive

Melbourne, Florida 32935

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: 08-002668

Orders for Case No: 08-002668