STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY P. WILLIAMS,

vs.

Petitioner,

Case No. 18-2241

TOWNSEND SEAFOOD,

Respondent.

/

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 27, 2018, in Jacksonville, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge with the Division of Administrative Hearings (“DOAH”).

APPEARANCES

For Petitioner: Shirley P. Williams, pro se

Apartment 403

3400 Townsend Boulevard

Jacksonville, Florida 32277 For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent, Townsend Seafood, violated section 760.08, Florida Statutes (2018),1/ by discriminating against Petitioner based on her race and/or her sex.

PRELIMINARY STATEMENT

On or about August 22, 2017, Petitioner, Shirley P. Williams ("Petitioner"), filed with the Florida Commission on Human Relations ("FCHR") a Public Accommodation Complaint of Discrimination against Townsend Seafood. Petitioner alleged that she had been discriminated against pursuant to chapters 509 and 760, Florida Statutes, as follows:

I am being harassed and discriminated against due to my sex (female) and race (black). The Respondent Townsend Seafood refuses to allow me the right to stand on public property while waiting [for] public transportation. I have been demanded on several occasions to stand in the rain, or sun. On July 4th, I approached the bus stop along with other whites who were waiting.

When I arrived, the Owner walked out of the restaurant and demanded us to move. I have been harassed and called the N (word) by this Owner.

The FCHR investigated Petitioner's Complaint. In a letter dated April 17, 2018, the FCHR issued its determination that there was no reasonable cause to believe that an unlawful public accommodation practice occurred.

On April 27, 2018, Petitioner timely filed a Petition for Relief with the FCHR. On May 4, 2018, the FCHR referred the case to DOAH. The case was scheduled for hearing on June 27, 2018, on which date it was convened and completed.

At the hearing, Petitioner testified on her own behalf and presented the testimony of her friend, Judy Slonka.

Petitioner’s Exhibits 1 through 3 were admitted into evidence.2/ Respondent did not appear at the hearing. Given that the

testimony of Petitioner and her witness led the undersigned to conclude that the FCHR lacked jurisdiction to provide relief, there was no need to issue an order to show cause or otherwise to inquire as to the reasons for Respondent’s failure to appear.

No transcript of the hearing was filed. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is a black woman who lives in Jacksonville, Florida.

2. Petitioner testified that she frequently waits at a bus stop adjacent to a strip mall on Townsend Boulevard in Jacksonville, across the street from a Publix Supermarket. In 2017, Townsend Seafood occupied the end of the strip mall nearest the bus stop. Townsend Seafood was a seafood market and restaurant.

3. Petitioner testified that Ahmed Al Janaby, the apparent proprietor of Townsend Seafood,3/ repeatedly accosted her on the public walkway near the bus stop.

4. In early May 2017, Mr. Al Janaby demanded that Petitioner remove a Publix grocery cart from the bus stop.

   
   

   Petitioner responded that she needed the cart because she has a chronic back disease and was unable to carry the several bags of groceries she had in the cart. Furthermore, the cart was on public property, not Mr. Al Janaby’s premises, and Petitioner knew that a Publix employee would retrieve the cart after she got on the bus.

5. On Memorial Day, 2017, Petitioner stopped by Publix on her way home from festivities downtown. As she stood on the public walkway near the bus stop, Mr. Al Janaby came out of his premises and demanded that Petitioner move. When Petitioner declined, Mr. Al Janaby began insulting her choice of clothing, stating that she looked like a “whore.” Petitioner responded by calling Mr. Al Janaby’s mother a whore. At that point,

   Mr. Al Janaby spat at Petitioner.

   
   

6. On July 4, 2017, Mr. Al Janaby again confronted Petitioner on the public walkway near the bus stop, demanding that she move. On this occasion, Mr. Al Janaby used what Petitioner called “the N-word.” When she threatened to call the police, he retreated to his business, but not before again spitting in her direction.

7. On August 21, 2017, Mr. Al Janaby assaulted Petitioner with a broom, which resulted in Petitioner’s toe being broken. This incident also occurred on the public walkway near the bus stop.

   
   

8. Petitioner testified that she had no choice but to use the bus stop near Mr. Al Janaby’s business. The bus stop itself was not covered, and the public walkway at the strip mall was the only place to seek refuge from the sun on hot days. Petitioner did most of her shopping in that area, and frequented one business in the same strip mall as Townsend Seafood. She did not shop or eat at Townsend Seafood.

9. Judy Slonka, a white friend of Petitioner’s, testified that she once stood on the public walkway while waiting for the bus on a day when the heat index was over 100 degrees.

   Mr. Al Janaby emerged from Townsend Seafood and hit her with a broom, saying that she was obstructing the entrance to his business.

10. Petitioner testified that since the events described by her and Ms. Slonka, Townsend Seafood has relocated from the end of the strip mall to an interior storefront. Neither woman has had a problem with Mr. Al Janaby since he moved his business away from the bus stop.

11. Petitioner’s testimony was credible as to the facts of the events she described. Ms. Slonka’s testimony was likewise credible. As the undersigned explained to Petitioner at the conclusion of the hearing, the problem is that the events they described do not meet the statutory definition of discrimination in a “place of public accommodation,” because they occurred on

    
    

    the public walkway outside of Townsend Seafood. Mr. Al Janaby certainly had no right to accost these women on a public walkway, but this was a matter for local law enforcement, not

    the FCHR.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

13. This is a de novo proceeding. § 120.57(1)(k), Fla.

    
    

    Stat. It is not a proceeding to review the FCHR’s preliminary

    
    

    determination that there was no reasonable cause to believe that an unlawful public accommodation practice occurred.

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

15. Section 760.08 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.

    
    

16. Townsend Seafood 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.

    
    

17. In this case, the facts do not support a finding that there was discrimination in a place of public accommodation. Petitioner was not denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of Townsend Seafood’s restaurant. Petitioner never attempted to set foot inside Townsend Seafood. Rather, she was accosted on a public walkway outside the restaurant by the apparent proprietor of Townsend Seafood. There are certainly legal remedies available to Petitioner to seek redress for Mr. Al Janaby’s bad behavior and physical bullying, but the

narrow definitions of the Florida Civil Rights Act do not provide relief under these facts.

RECOMMENDATION

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 finding that Townsend Seafood did not commit an act of public accommodation discrimination against Petitioner, Shirley P. Williams, and dismissing the Petition for Relief filed in this case.

DONE AND ENTERED this 13th day of July, 2018, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 13th day of July, 2018.

ENDNOTES

1/ All references to Florida Statutes are to the 2018 edition.

2/ At the hearing, Petitioner had only her originals of Exhibits 1 and 2, which were complaints Petitioner had filed with the Jacksonville Sheriff’s Office against the apparent proprietor of Townsend Seafood. The undersigned allowed Petitioner to keep the originals with the understanding that she would mail copies for inclusion in the case file. Petitioner never mailed in the copies. The undersigned reviewed the exhibits at the hearing. They made no difference to the ultimate determination in this case, which is that Petitioner failed to state facts that would permit relief by the FCHR under the Florida Civil Rights Act.

3/ The name “Lli Nab” appears on the mailing address of Townsend Seafood, but the objectionable actions were all taken by

Mr. Al Janaby, who represented himself as the proprietor.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations Room 110

4075 Esplanade Way

Tallahassee, Florida 32399-7020 (eServed)

Lli Nab

Townsend Seafood

2909 Townsend Boulevard

Jacksonville, Florida 32277

Shirley P. Williams Apartment 403

3400 Townsend Boulevard

Jacksonville, Florida 32277

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: 18-002241

Orders for Case No: 18-002241