STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ERIC WENDELL HOLLOMAN,

Petitioner, FCHR Case No.

v. No. 14-1920

LEE WESLEY RESTAURANTS, BURGER KING,

FCHR Order No. 14-041

Respondent.

/

FINAL ORDER DISMISSING PETITIO N FOR RELIE F FROM AN UNLAWFUL PUBLIC ACCOMMODATIONS

Preliminary Matters

Petitioner Eric Wendell Holloman filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 509.092 and 760.01 - Florida Statutes alleging that Respondent Lee Wesley Restaurants, Burger King, committed an unlawful public accommodations practice on the basis of Petitioner's disability by denying Petitioner service at Respondent's restaurant.

The allegations set forth in the complaint were investigated, and, on April

the Executive Director issued a determination finding that there was no reasonable cause to believe that an unlawful public accommodations practice had occurred.

Petitioner filed a Petition for Relief and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held by video teleconference at sites in Jacksonville and Tallahassee, Florida, on June before Administrative Law Judge Suzanne Van Wyk.

Judge Van Wyk issued a Recommended Order of Dismissal, dated July 28,

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order of Dismissal.

Findings of Fact

A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human Relations, et 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Gantz, et al.

Filed October 10, 2014 8:00 AM Division of Administrative Hearings

v. Zion's Hope, Inc., Holy Land Experience, FCHR Order No. (June 6, Mack v. Agency for Persons with Disabilities, FCHR Order No. (March

17, Hall v. Villages of West Oaks HOA. FCHR Order No. 08-007 (January 14, 2008), Beach-Gutierrez v. Bay Medical Center, FCHR Order No. (January 2005), and Waaser v. Strait's FCHR Order No. 04-157 (November 30, 2004).

We adopt the Administrative Law Judge's findings of fact.

Conclusions of Law

We the Administrative Law Judge's application of the law to the facts to result in a correct disposition of the matter.

We adopt the Administrative Law Judge's conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge's Recommended Order of Dismissal in a document received by the Commission on or about August 4, 2014.

There is no indication on the document that it was provided to Respondent as is required by Fla. Admin. Code R. and Fla. Admin. Code R.

However, the Commission published the document to the Respondent, and placed the document in the record of this case, through the issuance of a notice of ex parte communication, mailed to the parties on August 6, 2014.

Generally, the document excepts to the Recommended Order of Dismissal's conclusion that no unlawful public accommodations practice occurred.

In the absence of a transcript of the proceeding before the Administrative Law Judge, the Commission is bound by the facts found in the Recommended Order, since there is no way for the Commission to determine the extent to which the facts found are supported by the testimony presented. See, e.g., Gainey v. Winn Dixie Stores, Inc., FCHR Order No. 07-054 (October 2007) and Herring v. Department of Corrections, FCHR Order No. 12-004 (February 21, 2012).

With regard to findings of fact set out in Recommended Orders, the Administrative Procedure Act states, "The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law [emphasis added]." Section 120.57(1)(1), Florida Statutes As indicated, above, in the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See, National Industries, Inc., supra. Accord,

Hall, supra, Jones v. Suwannee County School Board, FCHR Order No. 06-088 (September 2006), Johnson v. Tree of FCHR Order No 05-087 (July 2005), Beach-Gutierrez, supra, and Waaser, supra.

Further, the Commission has stated, "It is well settled that it is the Administrative Law Judge's function 'to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. I f the evidence presented supports two inconsistent findings, it is the Administrative Law Judge's role to decide between them.' Beckton v. Department of Children and Family Services, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. at 2171 (FCHR Barr v. Columbia Regional Medical Center. 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005) and Eaves v.

Central Florida Portfolio, LLC, FCHR Order No. (March 17,

In addition, it has been stated, "The ultimate question of the existence of discrimination is a question of fact." Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, at 1209 (Fla. 1 s t DCA 1991). Accord, v. Bay County Board of County Commissioners, FCHR Order No. 10-027 (March 2010) and Eaves, supra.

Based on the foregoing, Petitioner's exceptions are rejected.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure

DONE AND ORDERED this y day of 2014.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Michael Keller, Panel Chairperson; Commissioner Derick Daniel; and

Commissioner Donna Elam

Filed this day 2014,

in Tallahassee, Florida.

Clerk

Commission on Human Relations 2009 Apalachee Parkway, Suite Tallahassee, FL

(850) 488-7082

Copies furnished to:

Eric Wendell Holloman Post Office Box 13153 Jacksonville, FL 32206

Lee Wesley Restaurants,

Burger King

c/o Karen K. Rose, Controller

Parkway, Suite

Jacksonville, FL

Suzanne Van Wyk, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above

By:

Clerk of

Florida Commission on Human Relations

Docket for Case No: 14-001920

Orders for Case No: 14-001920