STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TATIANA VITIELLO,

vs.

Petitioner,

Case No. 17-2133

BISLA AND BISLA, LLC, d/b/a WHISKEY NORTH,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, Lynne A. Quimby-Pennock, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing in Tampa, Florida, on May 11, 2017.

APPEARANCES

For Petitioner: Trescot Joseph Gear, Esquire

2525 Park City Way Tampa, Florida 33609

For Respondent: Donald Kervin, General Manager

Bisla and Bisla, LLC, d/b/a Whiskey North 11921 North Dale Mabry Highway

Tampa, Florida 33618 STATEMENT OF THE ISSUE

Whether Respondent, BISLA and BISLA, LLC, d/b/a Whiskey North (Whiskey North), violated sections 760.08 and 509.092, Florida Statutes (2016), by discriminating against Petitioner based on her disability.

PRELIMINARY STATEMENT

On or about September 22, 2016, Petitioner Tatiana Vitiello (Ms. Vitiello) filed with the Florida Commission on Human Relations (FCHR) a Public Accommodation Complaint of Discrimination (complaint) against Whiskey North. Ms. Vitiello’s complaint alleged that she had been discriminated against pursuant to chapters 509 and 760 as follows:

I require the use of a walker or scooter due to my physical disability. I was attending an arranged gathering for a family member at the establishment, Whiskey North, on 1/16/2016. The gathering was arranged for and held on the second story of the building. Upon arrival at the gathering, I was informed the elevator was broken and was prevented from using it. Since the elevator was apparently broken, the Staff carried me up the stairs to the second floor for the gathering. I was informed that Staff would carry me back down the stairs when I wished to leave. When I informed the Staff I wished to leave, the Staff refused to carry me down the stairs. The Staff stated this was based upon the instruction of Management. Because of the lack of an operational elevator and their refusal to assist me down the stairs, I was forced to undergo the humiliation and embarrassment of crawling down the stairs on my hands surrounded by other patrons. I was also in fear of being stepped on by patrons who were unable to see me. One patron did fall over my head. I have since experienced pain and discomfort in my back. The failure to provide an elevator or other means of vertical accessibility constituted discrimination on the basis of disability by exclusion from the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations.

FCHR investigated the Complaint, and on March 6, 2017, FCHR determined there was no reasonable cause to believe an unlawful practice occurred.

Ms. Vitiello timely filed a Petition for Relief with FCHR citing a “Discriminatory Public Accommodation Practice.” On April 10, 2017, FCHR referred the petition to DOAH, and the undersigned was assigned to conduct the requested hearing. The final hearing was scheduled for and completed on May 11, 2017.

At the hearing, Ms. Vitiello testified on her own behalf and presented the testimony of Shyla Lohey, a close personal friend. Petitioner’s Exhibit 1 was admitted into evidence without objection.1/ Respondent presented the testimony of Donald Kervin and Lorenzo Robinson. During his opening statement, Mr. Kervin apologized to Ms. Vitiello, and briefly discussed a composite exhibit that was filed with DOAH on Friday, May 5, 2017.2/

Mr. Kervin failed to offer the composite exhibit into evidence.3/ At the conclusion of the hearing, Mr. Kervin requested permission to file Respondent’s proposed recommended order (PRO)

within 15 days of the final hearing. Hearing no objection from Petitioner, the request was granted. The undersigned announced the PROs were to be filed before 5:00 p.m. on May 26, 2017.

The hearing was recorded by a court reporter; however, neither party requested a transcript of the proceedings.

Petitioner filed her PRO on May 19, 2017. On Monday, May 22,

2017, a document was electronically filed which the undersigned finds to be Respondent’s PRO in a simplistic format. A Notice of Ex Parte Communication was issued as there was no signature of who filed it, and no executed certificate of service. To the extent that either PRO has information that was not subjected to cross-examination during the hearing, that information has not been considered in the preparation of this Recommended Order.

Unless otherwise indicated, all statutory references are to

Florida Statutes (2016).

FINDINGS OF FACT

1. Ms. Vitiello is a female resident of Pinellas County, Florida, who has been diagnosed with incomplete paraparesis, a muscle weakening disease. Her disability requires her to use a walker or scooter to walk, and inhibits her ability to climb up or down stairs or ramps without assistance.

2. BISLA and BISLA, LLC, is doing business as Whiskey North. Based on the testimony provided, Whiskey North is a night club that has at least one bar, and provides entertainment.

   Mr. Kervin admitted that Whiskey North is a public establishment.

   
   

3. Ms. Vitiello recounted the following events in support of her claim of public accommodation discrimination:

   On January 16, 2016, Ms. Vitiello arrived at Whiskey North at approximately 9:30 p.m. to attend her sister’s birthday party. The birthday party was seated on the second floor of Whiskey

   
   

   North. When Ms. Vitiello asked to use the elevator, “someone” advised her that the elevator to the second floor was broken. Ms. Vitiello did not identify who told her the elevator was broken.

   “Someone” from Whiskey North offered to move the birthday party to a first floor table; however, Ms. Vitiello (and the birthday party) declined. Ms. Vitiello did not identify the Whiskey North employee who offered to move the party.

   Andre, whom Ms. Vitiello identified as Whiskey North’s “head of security,” offered to carry Ms. Vitiello “like a baby” up the stairs about 10:00 p.m. The offer was accepted. Ms. Vitiello recalled that Andre agreed to assist her down the stairs when she wanted to leave.

   After midnight, Ms. Vitiello and her fiancé wanted to leave the birthday party. When Ms. Vitiello notified Whiskey North’s bartender she was “ready to go,” however, being “ready to go” and asking for assistance are two different things. Ms. Vitiello believed the staff ignored her request. Ms. Vitiello did not communicate directly with Andre about her need for assistance to leave Whiskey North. Twice, Ms. Vitiello saw Andre walk quickly by her party and stop to assist her.

   After waiting some time for Whiskey North staff assistance, Ms. Vitiello made the decision to go down the stairs on her own. She got down on all fours and walked backwards to the stair

   
   

   landing. Ms. Vitiello then went down the stairs on her rear-end. Ms. Vitiello was humiliated and saw people laughing at her as she came down the stairs. Ms. Vitiello did not identify who was laughing at her. As she was leaving Whiskey North, Ms. Vitiello cried and felt very disabled.

4. Ms. Vitiello affirmed the facts in her FCHR complaint (found on page 2 above). Therein she described her injuries as “pain and discomfort in my back,” but offered no further evidence of complications or related medical expenses.

5. Ms. Lohey remembered attending the birthday party at Whiskey North on January 16, 2016, because her “best friend [Ms. Vitiello] was humiliated.” She heard Ms. Vitiello ask Whiskey North staff for assistance to leave the birthday party, yet Ms. Lohey could not identify to whom the request was made. Further, Ms. Lohey became aware that the elevator was broken at the end of the evening, when Ms. Vitiello wanted to leave the party.

6. When Ms. Vitiello became frustrated with the wait for Whiskey North assistance, Ms. Lohey walked backward down the stairs in front of Ms. Vitiello with the intention of assisting Ms. Vitiello should she fall. Although Ms. Lohey saw people in Whiskey North laughing as Ms. Vitiello went down the stairs, there were also people who offered to help Ms. Vitiello, which help Ms. Vitielllo declined.

   
   

7. Mr. Robinson, who is the head of the “inside security” for Whiskey North, became aware of Ms. Vitiello when he was called to go upstairs. Mr. Robinson saw Ms. Vitiello on the second landing coming down the stairs. Mr. Robinson offered to help Ms. Vitiello, but she declined his assistance. Mr. Robinson walked backwards down the stairs in front of both Ms. Lohey and Ms. Vitiello to “catch her” if she fell. Mr. Robinson testified that it was not possible for Whiskey North security personnel to help Ms. Vitiello as she refused the help.

8. Mr. Kervin, who serves as the general manager for Whiskey North, did not hear of the incident until after

   Ms. Vitiello had descended the stairs and left the establishment.

   
   

9. It is unclear if Whiskey North has a stated non- discrimination policy, although Mr. Kervin testified he treats all guests equally. Mr. Kervin wanted to fire staff over how they handled this incident. Mr. Kervin reiterated that Whiskey North staff tried to move the birthday party to a downstairs section, but the guests did not want to move. It is unclear which Whiskey North staff offered to move the birthday party to the first floor.

10. According to Mr. Kervin, Andre is not the head of Whiskey North’s security as Ms. Vitiello testified. Andre is the entertainment promoter’s door man who “gets people in the door.”

    
    

11. It is unclear who employs Andre and in what capacity.

    
    

    It remains unclear who greeted Ms. Vitiello at Whiskey North, gave her the information about the elevator being broken, who offered to move the birthday party to the first floor, and which Whiskey North staff she asked for assistance to get down the stairs.

12. At some point Mr. Kervin examined Whiskey North’s elevator. Although he thought the elevator was working on January 16, 2016, it was not. Mr. Kervin determined that one of the two batteries necessary to operate the elevator was bad. The battery was replaced after this incident.

13. Ms. Vitiello did not identify the Whiskey North employee (or employees) with whom she communicated regarding her need for an accommodation, nor did she provide any documentation or testimony regarding damages for injuries and/or emotional suffering as a result of this incident. The evidence presented by Ms. Vitiello was insufficient to show that Whiskey North discriminated against Ms. Vitiello based upon her disability.

    CONCLUSIONS OF LAW

    
    

14. DOAH has jurisdiction of the subject matter of and the parties to this proceeding. See §§ 120.569, 120.57(1), 760.01-

    760.11, and 509.092, Fla. Stat. (2016); see also Fla. Admin. Code R. 60Y-4.016.

    
    

15. The Florida Civil Rights Act of 1992 (the "Florida Civil Rights Act" or the "Act"), chapter 760 prohibits discrimination in places of public accommodation.

16. Section 760.08, titled “Discrimination in places of public accommodation,” provides:

    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.

    
    

17. Section 760.02(11) provides the following definition:

    
    

    “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:

    
    

    * * *

    
    

    1. 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.

       
       

    2. Any motion picture theater, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment.

       
       

    3. Any establishment which is physically located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment.

       
       

18. Section 509.092 provides:

    
    

    [P]ublic food service establishments are private enterprises, and the operator has the right to refuse accommodations or service to any person who is objectionable or undesirable to the operator, but such refusal may not be based upon race, creed, color, sex, pregnancy, physical disability, or national origin. A person aggrieved by a violation of this section or a violation of a rule adopted under this section has a right of action pursuant to s. 760.11.

    
    

19. Whiskey North is a night club, which sells food for consumption on the premises, and also provides entertainment of some type. While no evidence was offered to prove whether Whiskey North’s primary business is selling food or providing entertainment, that determination need not be made, because either way, Whiskey North is a “public accommodation” as statutorily defined in section 760.02(11).

20. 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. Accordingly, federal cases interpreting the similar federal civil

    
    

    rights law apply. See Fla. Dep't of Cmty. Aff. v. Bryant,

    
    

    586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

    
    

21. Due to the relative lack of Title II cases, federal courts routinely find guidance in the more extensive case law developed under 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 F3d 344, 349 (5th Cir. 2008), and cases cited therein.

    
    

    Federal courts have extended to public accommodation cases the shifting-burden analysis adopted by the U.S. Supreme Court for employment discrimination cases in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

    Fahim, 551 F.3d at 349-350. This same analysis has been adopted in FCHR public accommodation cases. See Inman v. Jian Deng Bao,

    d/b/a China Gardens Rest., Case No. 11-5602 (Fla. DOAH Feb. 12, 2012; FCHR Apr. 23, 2012).

22. Under the McDonnell analysis as adapted to public

    
    

    accommodation discrimination cases, Petitioner has the burden of proving a prima facie case of unlawful discrimination by a preponderance of the evidence. The Court developed a three-step allocation of the burden of production.

23. Under the McDonnell model, the Petitioner bears the initial burden of establishing a prima facie case of discrimination. If a prima facie case of discrimination is

    
    

    established, the burden shifts to Respondent to articulate a legitimate non-discriminatory reason for the alleged discriminatory conduct. If Respondent meets this burden (i.e.,

    rebuts the prima facie case), then the burden shifts back to the Petitioner to prove that the articulated reasons are mere pretexts, and that the actions were, in fact, motivated by an unlawful discriminatory reason. Laroche v. Denny’s Inc.,

    62 F. Supp. 2d 1375, 1382-1383 (S.D. Fla. 1999); Wells v. Burger

    
    

    King Corp., 40 F. Supp. 2d 1366, 1368 (N.D. Fla. 1998).

    
    

24. “The ultimate burden is on (Petitioners) to prove that they were the victims of intentional discrimination.” Laroche,

    62 F. Supp. 2d at 1383.

    
    

25. To establish a prima facie case, Ms. Vitiello must prove the following: (1) Petitioner is a member of a protected class; (2) Petitioner attempted to contract for services of a public accommodation; (3) Petitioner was denied those services; and (4) the services were available to similarly situated persons outside the protected class who received full benefits or enjoyment, or were treated better. Laroche, 62 F. Supp. 2d at

    1382.

    
    

26. Ms. Vitiello proved, and Respondent did not dispute, that Ms. Vitiello is a member of a protected class: disabled.

27. Ms. Vitiello proved she went to Whiskey North for the purpose of obtaining services and affording herself the full

    
    

    benefits and enjoyment of Whiskey North, a public accommodation. However, Ms. Vitiello failed to establish that she directly communicated with Whiskey North employees regarding her need for an accommodation.

28. Ms. Vitiello proved she was carried up the stairs at Whiskey North, and enjoyed Whiskey North’s amenities for an evening.

29. Ms. Vitiello did not prove by a preponderance of the evidence that Whiskey North failed to accommodate her disability, as Ms. Vitiello declined assistance when it was offered to her, as testified by two witnesses.

30. Ms. Vitiello failed to meet the prima facie burden of establishing that Whiskey North discriminated against her. As such, Whiskey North was not required to nor did it present any evidence to rebut that claim.

31. The evidence presented at the final hearing failed to establish that Whiskey North discriminated against Ms. Vitiello

based upon her disability.

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 finding dismissing Ms. Vitiello’s complaint and the petition for relief.

DONE AND ENTERED this 5th day of June, 2017, in Tallahassee,

Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

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 5th day of June, 2017.

ENDNOTES

1/ Petitioner’s Exhibit 1 is a copy of the public accommodation complaint of discrimination filed by Ms. Vitiello on

September 22, 2016.

2/ Petitioner’s counsel stated no objection to the composite exhibit.

3/ Had Respondent’s composite exhibit been admitted into evidence, it would not support a finding of fact as it was replete with hearsay which was not corroborated by anyone, except for the testimony of Mr. Kervin. The composite exhibit contained a copy of DOAH’s Initial Order; a copy of the FCHR’s March 6, 2017, Determination: No Reasonable Cause; a copy of the FCHR’s March 6, 2017, Notice of Determination: No Reasonable Cause; an undated statement by Donald Kervin, General Manager; an electronic mail message to “Donallona@gmail.com from 1215robertkinghigh@gmail.com dated November 2, 2016; an undated “To whom it may concern” message from Chantel Hermosillo; and an ATIS Elevator Inspections, LLC, proposal letter to Whiskey North dated November 9, 2016, describing services for a two-landing chair lift, routine inspection.

The undersigned did not hear testimony from Chantel Hermosillo, 1215robertkinghigh, or anyone from the elevator company. Neither individual who testified, Mr. Kervin and Mr. Robinson, claimed to be 1215robertkinghigh, Chantel Hermosillo, or the elevator inspection service. Further, both the 1215robertkinghigh gmail message and the elevator proposal letter were dated almost 10 months after the incident.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 (eServed)

Donald Kervin

BISLA and BISLA, LLC, d/b/a Whiskey North 11921 North Dale Mabry Highway

Tampa, Florida 33618 (eServed)

Trescot Joseph Gear, Esquire 2525 Park City Way

Tampa, Florida 33609 (eServed)

Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 (eServed)

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: 17-002133

Orders for Case No: 17-002133