JESSICA AUSTIN, DENISE AUSTIN, TRACIE AUSTIN, JAMES AUSTIN, ESTHER HALL, BONLYDIA JONES, BONIRIS MCNEAL, SUMMER MCNEAL, AND DEREK MCNEAL,
vs.
Respondent.
Case Nos. 14-0029
A formal hearing was conducted in this case via telephone conference on April 24, 2014, in Tallahassee, Florida; and Cleveland, Ohio; before Suzanne Van Wyk, a duly-designated Administrative Law Judge with the Division of Administrative Hearings.
Esther Hall, Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Boniris McNeal, Summer McNeal, and
Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Over several months beginning in July 2012, and ending in July 2013, Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington, each filed with the Florida Commission on Human Relations (Commission) a Public Accommodation Complaint of Discrimination (Complaint of Discrimination) against Eve Management, Inc. and KA and KM Development, Inc. (Eve Management). Petitioners alleged that they had been discriminated against on the basis of their race, in violation of chapter 509 and chapter 760, Florida Statutes.
The Commission investigated Petitioners’ Complaints. On November 26, 2013, the Commission issued a determination that there was reasonable cause to believe that an unlawful public accommodation practice occurred with regard to each Petitioner.
All Petitioners timely filed a Petition for Relief and Administrative Hearing with the Commission. The Commission referred seven of the 10 cases to the Division of Administrative Hearings (Division) on January 7, 2014. No party responded to the Initial Orders entered January 8, 2014. The undersigned consolidated the cases and scheduled them for hearing on
April 1, 2014, at 9:30 a.m. in Tallahassee, Florida.
The Commission forwarded the three remaining cases to the Division on January 13, 2014. No party responded to the Initial Orders. The undersigned consolidated these cases with the previous seven cases scheduled for hearing on April 1, 2014.
Upon review of the docket, the undersigned noticed that mailings from the Division to Petitioner Bonlydia Jones were returned by the U.S. Postal Service as “undeliverable.” Upon further review, it was discovered that Petitioner Jones’ address was incorrect. On February 20, 2014, the undersigned, sua sponte, canceled the hearing scheduled for April 1, 2014, and entered an Order requiring the parties to furnish information regarding availability for scheduling the final hearing in this matter (Order).
In response to the Order, Petitioners provided letters to the undersigned requesting to appear via telephone due to their residence in the State of Ohio, and the inconvenience and
expense associated with appearing in Florida. Respondent did not respond to the Order.
The undersigned scheduled a telephonic pre-hearing conference for March 19, 2014, to discuss Petitioners’ request to appear via telephone and to set a date for the final hearing. Several of the Petitioners participated in the pre-hearing conference; Respondent did not. As such, Respondent waived any objection to conduct of the final hearing via telephone conference. The final hearing in this cause was rescheduled for April 24, 2014, via telephone conference, beginning at 9:30 a.m.
On March 10, 2014, the undersigned entered an Order to Show Cause why Petitioners’ Petitions for Relief should not be dismissed as untimely. Petitioners filed a Response to the Order to Show Cause on March 14, 2014. Respondent did not file a Response to the Order to Show Cause.
The hearing commenced as scheduled on April 24, 2014, at 9:30 a.m., via telephone. Petitioners Dionne Harrington, Denise Austin, Boniris McNeal, Esther Hall, and Bonlydia Jones testified on their own behalf and offered the testimony of Erika Bell. Petitioners’ Exhibit P1, the Commission’s Investigative Memorandum, was admitted into evidence. The undersigned held the record open until April 25, 2014, at 5:00 p.m., for Petitioners to file a copy of the Petitioners’ contract with
Respondent. Petitioners timely filed Exhibit P2, Lake Eve Resort Standard Group Contract dated May 23, 2011.
The final hearing lasted approximately one and one-half hours and the call-in line remained open for the duration of the call. Respondent did not appear at the final hearing.
Each of the witnesses was administered the oath by a Notary Public of the State of Ohio, who provided the Division with a Statement of Person Administering Oath on May 1, 2014.
The final hearing was recorded by a court reporter provided by the Commission. The parties did not order a transcript of the proceedings.
The undersigned entered an Order on Post-hearing Submissions on May 5, 2014, setting a deadline of May 25, 2014, for the parties to submit proposed recommended orders to the Division. Petitioners timely submitted a Proposed Recommended Order, which has been considered in preparation of this Recommended Order. Respondent did not submit a proposed order.
Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011.
Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto.
Each Petitioner filed a Complaint of Discrimination with the Commission as follows:
Jessica Austin – July 20, 2012
Denise Austin – July 21, 2012
Tracie Austin – January 18, 2013 (Amended Complaint)2/
Bonlydia Jones – July 11, 2012
James Austin – July 31, 2012
Dionne Harrington – August 1, 2012
Esther Hall – January 28, 2013 (Amended Complaint)3/
Boniris McNeal – March 27, 2013
Summer McNeal – March 27, 2013
Derek McNeal – March 27, 2013
In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011.
On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission.
Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent.
Allegations of Discrimination
On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion.
Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011.
Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011.
Petitioners checked in to the Resort without incident.
However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family.
Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary.
Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries.
Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011.
Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011.
On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room.
That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available.
Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available.
After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move.
Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family.
After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort.
Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour.
Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings.
Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason.
In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member.
Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police.
Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin,
Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings.
Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from
Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings.
Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests
entering the lobby were not approached by either the police or Resort management.
Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes.
Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason.
Erika Bell received a call from her mother,
Ms. Austin, while en route to the Resort on June 22, 2011.
Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation.
Respondent gave no reason for evicting Petitioners from the property.
Respondent refunded Petitioners’ money.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction of the subject matter of this proceeding.
§§ 120.569 and 120.57(1), Fla. Stat. (2013).
These consolidated cases allege violations of both sections 509.092 and 760.08, Florida Statutes (2011), and are brought pursuant to section 760.11.
Section 760.11 requires any person aggrieved by a violation of either section 509.092 or section 760.08 to file a complaint with the Florida Commission on Human Relations (Commission) within 365 days of the alleged violation. See
§ 760.11(1), Fla. Stat.
Section 760.11 is a statute of limitations. See St. Petersburg Motor Club v. Cook, 567 So. 2d 488, 489 (Fla. 2d
DCA 1990). Violations that occurred more than 365 days prior to the filing of the complaint with the Commission are time-barred and not actionable. See Greene v. Seminole Elec. Coop., 701 So.
2d 646, 648 (Fla. 5th DCA 1997); Bias-Gibbs. v. Jupiter Med. Ctr., Case No. 07-4785 (Fla. DOAH Apr. 24, 2008; FCHR July 8,
2008). See also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108 (2002)(explaining that strict adherence to the filing deadlines in the comparable federal law is necessary to ensure prompt consideration of discrimination complaints and even- handed administration of the law.)
Florida Administrative Code Rule 60Y-5.001 governs the filing of Complaints with the Commission.5/ A complaint must be filed with the Commission within 365 days of the occurrence of the alleged act of discrimination. See Fla. Admin. Code R. 60Y-
5.001(2). A complaint must be made in writing and signed by the complainant. See Fla. Admin. Code R. 60Y-5.001(5). The date of
filing shall be the date of receipt of the complaint by the Commission. See Fla. Admin. Code R. 60Y-5.001(3).
In some circumstances, a TAQ filed with the Commission serves as a Complaint of Discrimination filed pursuant to section 760.11(1). See Sharpe v. Fla. Comm’n on Hum. Rel., Case
No. 07-3763 (Fla. DOAH June 11, 2008; FCHR Sept. 8,
2008)(Petitioner’s complaint was timely filed when she faxed a TAQ to the EEO within 365 days of most recent act of discrimination, even though the TAQ was not stamped “received” by the EEO). See also, Seiden v. Wexford Health Sources, Case
No. 06-2400 (Fla. DOAH Jan. 18, 2007)(“The date [petitioner] is considered to have filed her complaint is not [] the date she first filed her formal charge of discrimination; it is actually [] the date when she filed, through counsel, a completed Technical Assistance Questionnaire for Employment
Complaints . . .”), conclusion neither adopted nor rejected by FCHR, Case No. 06-0218 (FCHR March 27, 2007).6/ However, where a
TAQ is unsigned, it does not qualify as a complaint pursuant to the statute and rules. See Perez v. Salamander, Case No. 09-
3478 (Fla. DOAH Sept. 29, 2009; FCHR Dec. 14, 2009).
Based on Findings of Fact numbers 5 and 6, the Commission rules, and relevant precedent, the undersigned concludes that the TAQs filed with the Commission on June 21, 2012, by Petitioners Esther Hall, Summer McNeal, Boniris McNeal,
Derek McNeal, and Dionne Harrington, constitute timely filed complaints of discrimination pursuant to section 760.11, Florida Statutes, and Florida Administrative Code Rule 60Y-5.001.
Florida Administrative Code Rule 60Y-5.001 also provides for the relation back of certain complaints, as
follows:
Relation Back of Certain Complaints. A complaint which would not otherwise be timely may be filed if it:
States that another complaint naming the same respondent is properly before the Commission and identifies that other complaint, and
Alleges the same or additional facts which describe an unlawful employment practice related to or growing out of the subject matter of the other, identified complaint, and
Would have been timely if filed at the time of, or other time subsequent to, the filing of the other, identified complaint. A complaint under this subsection may be filed by a new complainant and shall relate back to the date the other, identified complaint was first received.
Petitioners Bonlydia Jones, James Austin, Jessica Austin, Denise Austin, and Tracie Austin, filed complaints of discrimination with the Commission on July 11, 2012; July 31, 2012; July 20, 2012; July 21, 2012; and January 18, 2013, respectively. Each complaint refers to Respondent’s treatment of their family on the occasion of their family reunion at the
Resort. Each complaint alleges the same or additional facts describing an unlawful practice in the provision of a public accommodation growing out of the same subject matter as that described by Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington. As such, each complaint meets the requirements of rule 60Y-5.001(4)(b) and
(c) for relation back.
The complaints filed by Ms. Jones and the Austin family do not refer to another specific complaint which is properly before the Commission, as required by rule 60Y- 5.001(4)(a).
The relation-back doctrine applies in civil law to allow new plaintiffs to join a lawsuit after the statute of limitations has run where there is an identity of interest with original plaintiffs. “If the new and original plaintiffs ‘have an identity of interest so as not to prejudice the defendant,’ then the defendant has been given fair notice of the common interest among the plaintiffs.” Lopez-Loarca v. Cosme, 76
So. 3d 5, 10 (Fla. 4th DCA 2011)(quoting Roger Dean Chevrolet v.
Lashley, 580 So. 2d 171, 173 (Fla. 4th DCA 1991)). The touchstone of the identity of interest requirement “is whether the defendant knew or should have known of the existence and involvement of the new plaintiff.” Roger Dean, 580 So. 2d at
173.
While the late-filed complaints of Petitioners Bonlydia Jones, James Austin, Jessica Austin, Denise Austin, and Tracie Austin do not specifically mention a particular pending complaint of one of their relatives, they describe the events sufficiently to relate back to the complaints timely filed by their relatives arising out of the same events at the Resort on June 21 and 22, 2011.
There is no record that Respondent claimed prejudice with regard to the late-filed complaints of Petitioners Bonlydia Jones, James Austin, Jessica Austin, Denise Austin, and Tracie Austin. Given the fact that Respondent evicted approximately 55 family members from the Resort on June 22, 2011, Respondent certainly “knew or should have known” of other potential complainants.
The undersigned concludes that the Complaints of Petitioners Bonlydia Jones, James Austin, Jessica Austin, Denise Austin, and Tracie Austin relate back to the timely-filed complaints of the other Petitioners pursuant to rule 60Y- 5.001(4).
Thus, the Division of Administrative Hearings has jurisdiction of the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
Claims of Discrimination
The Florida Civil Rights Act of 1992, chapter 760, Florida Statutes, prohibits discrimination in places of public accommodation.
Section 760.08, Florida Statutes, provides:
Discrimination in places of public accommodation. —
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.
The Resort is a "public accommodation" as defined in section 760.02(11), which provides the following, in relevant part:
"Public accommodations" means places of public accommodation, lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, places of exhibition or entertainment, and other covered establishments. Each of the following establishments which serves the public is a place of public accommodation within the meaning of this section:
* * *
(b) Any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility
located on the premises of any retail establishment, or any gasoline station . . . .
Title II of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000a (2006), prohibits discrimination in places of public accommodation, in language identical to that found in section 760.08, except for the omission of certain protected classes. Due to the lack of Title II cases, federal courts routinely find guidance in the law of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, including the law of the shifting burdens of production of evidence. See Fahim v. Marriott Resort Servs., 551 F.3d 344, 349 (5th Cir. 2008), and cases cited
therein. The United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973),
also provides the model for Title II cases. Fahim, 551 F.3d at 349-50.
Under the McDonnell analysis, as modified for cases of discrimination in places of public accommodation, Petitioners have the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If the prima facie case is established, the burden shifts to Respondent to rebut this preliminary showing by producing evidence that the allegedly discriminatory action was taken for some legitimate, non-discriminatory reason. If Respondent rebuts the prima facie
case, the burden shifts back to Petitioners to show by a preponderance of evidence that Respondent's offered reason was pretextual or that Respondent's reason, if true, was only one reason for its action and that another motivating factor was Petitioners’ protected characteristic.
In order to prove a prima facie case of unlawful public accommodation discrimination under section 760.08, Petitioners must establish that: (1) they are members of a protected class; (2) they attempted to contract for the services of a public accommodation; (3) they were denied those services; and (4) the services were made available to similarly-situated persons outside their protected class. Fahim, 551 F.3d at 350.
Petitioners have proven a prima facie case of unlawful public accommodation discrimination. Petitioners established that they are members of a protected class, in that they are African American. Petitioners contracted for the services of the Resort, specifically for 15 rooms for a five-night stay. Petitioners were denied the requested services without any explanation from Respondent. Other Resort guests who were not African-American were not approached by either management or the police, and were not evicted from the Resort.
Respondent did not appear at the hearing. Therefore, no rebuttal case was made.
After an administrative hearing, if the Commission finds that a discriminatory practice has been committed, the Commission must issue a final order "prohibiting the practice and providing affirmative relief from the effects of the practice." § 760.11(6), Fla. Stat. However, the Commission has no authority to award monetary relief for non-quantifiable damages such as pain, embarrassment, or humiliation. City of
Miami v. Wellman, 976 So. 2d 22, 27 (Fla. 3d DCA 2008) (non-
quantifiable damages "are uniquely within the jurisdiction of the courts").
Petitioners seek an award of $50,000.00 in damages for embarrassment, humiliation, and the stress and inconvenience associated with securing new accommodations for their family in Orlando, Florida, on very short notice. The undersigned lacks authority to make such an award.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order:
Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2014.
1/ Citations shall be to Florida Statutes (2011) unless otherwise specified.
2/ The record contains no original Complaint of Discrimination filed by Tracie Austin.
3/ The record contains no original Complaint of Discrimination filed by Esther Hall.
4/ The contract reserves a specific number of one-, two-, and three-bedroom suites for each night.
5/ Florida Administrative Code Chapter 60Y-10 governs discrimination by public lodging establishments with respect to refusing accommodations and services. The chapter specifically
provides that chapter 60Y-5 governs the complaint process for discrimination in the provision of public accommodations. See Fla. Admin. Code R. 60Y-10.005 (“Other rules adopted by the Commission, namely Chapters 60Y-3, 60Y-4 and 60Y-5, F.A.C., shall be the rules governing a proceeding under this chapter to the extent that such other rules do not contradict a specific provision herein.”).
6/ The Commission agreed with the Administrative Law Judge’s decision on the merits of Petitioner’s claim, and determined it was “unnecessary to either accept or reject the conclusion of law that the complaint of discrimination was untimely.” Seiden v. Wexford Health Sources, Case No. 06-0218 (FCHR Mar. 27, 2007).
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Chirag B. Kabrawala, Esquire Baker Hostetler, LLP SunTrust Center, Suite 230
James R. Austin
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.
