The Issue By Notice to Show Cause filed August 24, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the license of P & D, Inc. t/a Pete and Lenny's. As grounds therefor it is alleged that on or about June 29, 1977 Respondent failed to discontinue the sale of alcoholic beverages when the service of full course wools had been discontinued. Three witnesses were called by Petitioner, two witnesses were called by Respondent and one exhibit was admitted into evidence.
Findings Of Fact P & D, Inc. t/a Pete and Lenny's holds a 4 COP special restaurant beverage license and the Hearing Officer has jurisdiction over the parties and the violations alleged. On or about 12:30 a.m. June 29, 1977 beverage agents Meek and Shepherd entered Pete and Lenny's, seated themselves at the bar and ordered drinks. After finishing their drink they ordered a second drink and inquired of the bartender, Richard Bohan, if they could get food. He replied that they could get sandwiches at the Banana Boat next door. Further questioning by the agents elicited responses that Respondent had stopped serving and the cook had been transferred next door, that the Banana Boat served sandwiches until 1:30 a.m., that Respondent usually offered New York strip steaks but "not this late", and that the Banana Boat and Pete and Lenny's were owned by the same corporation. After identifying themselves as beverage agents and asking for the manager, Meek and Shepherd inspected the kitchen and restaurant area. Inspection of the kitchen revealed the only cooking equipment to be a microwave oven, empty icebox at 420 F, no evidence that food had been prepared in the kitchen for several days, insufficient silver to serve 200 diners simultaneously as required by regulations for special restaurant licenses, and musicians instrument cases occupying a substantial portion of the kitchen floor. Unopened boxes of silver was produced from the storeroom in sufficient quantity to meet the minimum requirements of the regulations. Respondent's witnesses testified that the icebox had been inoperative for a day or two and food had been removed to next door, but that they were not refusing to serve full course meals. The only meal offered appears to have been the New York strip steak either cooked next door or in the microwave oven. No facilities were available in the kitchen with which to prepare vegetables and these witnesses testified potato salad was served as the vegetable. Pete and Lenny's is a night club where the music is loud and continuous. When the live band is on break recorded music is provided. On the evening of the inspection by beverage officers Meek and Shepherd little, if any, food had been served in Pete and Lenny's.
The Issue Whether Petitioner should be granted conditional use approval to sell beer and wine at his restaurant located on Petitioner's property at 201 South Gulfview Boulevard, on Clearwater Beach, in the City of Clearwater, Florida.
Findings Of Fact On or about August 27, 1990, Petitioner filed an application for conditional use approval with the Planning and Development Department of the City of Clearwater to permit the sale of beer and wine for on-premise consumption at a restaurant known as Britt's Beachside Cafe located on Petitioner's property at 201 South Gulfview Boulevard, on Clearwater Beach, in the City of Clearwater. The subject property is zoned CR-28. Within that zoning district classification, the sale of alcoholic beverages for consumption on the premises is allowable upon detaining a conditional use approval. However, all such alcoholic beverage sales for consumption on the premises shall be located in a hotel or motel in conjunction with a 4-COP-S license or within a restaurant deriving 51 percent or more of its gross revenue from the sale of food and nonalcoholic beverages. The subject property is improved and is presently used as a restaurant, the present restaurant use contains 2170 square feet of gross floor area and requires 11 parking spaces. The parking space calculation was made according to the formula of one space per 200 square feet of gross floor area, the general parking formula for restaurants, with a 50 percent reduction allowed for Clearwater Beach locations. The Petitioner proposes to enlarge the restaurant by adding outdoor seating, increasing the use area to 2500 square feet, and adding the sale of beer and wine for consumption on the premises. This will increase the required parking spaces to 32. Eating and drinking establishments licensed by the State of Florida for on-premise consumption of alcoholic beverages require 2 1/2 times the parking space required for a restaurant not serving alcoholic beverages for on-premises consumption. Petitioner operated a restaurant very similar in size and menu serving beer and wine in a larger hotel with a smaller parking lot approximately 60 feet north of the subject property for 3 1/2 years before he lost his lease and moved to the subject premises. Petitioner operated his former restaurant with essentially the same number of parking spaces without incident and with no complaints addressed to any agency of the City of Clearwater. The denial of Petitioner's conditional use was based solely upon the number of available parking Spaces, as Petitioner met all other requirements of the Code for the conditional use requested. A waiver of the required parking spaces can be granted only by the Development Code Adjustment Board, while conditional use approval is made by the Planning and Zoning Board. The Adjustment Board will not consider Petitioner's request for waiver of the parking requirements until after he has obtained conditional use approval from the Planning and Zoning Board. Accordingly, Petitioners find themselves a catch-22 situation.
The Issue The issue in this case is whether Respondent, a restaurateur, unlawfully discriminated against Petitioners, who are African-Americans, by refusing to serve them based upon race.
Findings Of Fact On or about July 7, 2001, Petitioners Veronica King and Walter King (the “Kings”), who were then on vacation in Miami Beach, Florida, decided to eat dinner at La Playa de Varadero Restaurant (“La Playa”), a Cuban restaurant near their hotel.2 They entered the restaurant some time between 3:00 and 5:00 p.m. Though the dining room was full of patrons, there were a few empty tables. The Kings seated themselves. The Kings reviewed the menus that were on the table and conversed with one another. They waited for a server, but none came promptly. After waiting about 10 or 15 minutes, Mrs. King signaled a waitress, who came to their table and took their drink and food orders.3 The waitress brought the Kings their drinks without delay. The food, however, did not appear, and the Kings grew increasingly impatient and irritated. It seemed to the Kings, who are African-Americans, that other customers——none of whom was black——were being served ahead of them.4 After about a half an hour or so, having yet to be brought food, the Kings decided to leave without eating. On the way out of the restaurant, the Kings paid the cashier for their drinks. They complained to the cashier about the slow service and expressed to her their dissatisfaction at having waited so long, and in vain, for their meals.5 The Kings perceived that the cashier and other employees, including their waitress who was standing within earshot, were indifferent to the Kings’ distress. Ultimate Factual Determinations At the material time, La Playa was a “public food service establishment” within the reach of Section 509.092, Florida Statutes, and hence subject to liability for unlawful discrimination in violation of the Florida Civil Rights Act. The greater weight of the evidence fails to establish that La Playa refused to serve, or otherwise unlawfully discriminated against, the Kings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing the Kings’ Petition for Relief. DONE AND ENTERED this 19th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2003.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of national origin or race in violation of Section 760.08, Florida Statutes (2005),1 during Petitioner’s visit to a Burger King Restaurant on June 3, 2006.
Findings Of Fact Petitioner is in a protected class within the meaning of Subsection 760.02(6). Petitioner’s national origin is Haitian, and his race is Black. Respondent operates a Burger King restaurant located at 1260 North Fifteenth Street, Immokalee, Florida 34142 (the Restaurant). The Restaurant is a place of public accommodation, defined in Subsection 760.02(11)(b). Petitioner and two friends visited the Restaurant on June 3, 2006, for the purpose of purchasing and consuming food served by the Restaurant. Petitioner waited in line to order food for himself and his two friends. Petitioner placed his order and paid for the food he ordered. The cashier and food service employee on duty at the Restaurant was Ms. Jessica Lopez. Ms. Lopez is a Hispanic woman who is married to a Haitian man. At the time the food was ready, Ms. Lopez called the order number. Petitioner attempted to retrieve the food and Ms. Lopez asked him for his receipt with the order number on it. Petitioner indicated that he did not have the receipt. Ms. Lopez directed Petitioner’s attention to a sign stating that customers must have a receipt in order to be served. After a short conversation about the store’s policy and requirement to have a receipt, Ms. Lopez served Petitioner his food. The food order was correct, but Petitioner objected to the manner in which Ms. Lopez placed his food service tray on the counter. Petitioner claims that Ms. Lopez threw the tray on the counter. None of the food spilled out of containers or off the tray. Petitioner demanded that she serve him correctly or refund his money. Ms. Lopez refunded Petitioner’s money. It is undisputed that Petitioner had concluded his business transaction with the Restaurant after requesting the refund. Petitioner intended to leave the Restaurant. Petitioner claims that before he left the Restaurant, Ms. Lopez cursed at him and referred to his national origin by saying, “Get the fuck out, fucking Haitians.” Ms. Lopez testified that she may have cursed at him at the time she refunded the money. However, Ms. Lopez denied making any comments related to national origin. The fact-finder finds the testimony of Ms. Lopez to be credible and persuasive. During the incident at the Restaurant, Petitioner’s two friends and another gentleman joined Petitioner at the counter as he argued with Ms. Lopez. None of the men testified at the hearing. It is undisputed that the alleged comments by Ms. Lopez are the only alleged references to the national origin or race of Petitioner by any employee or manager at the Restaurant. Respondent’s store manager, Mr. Lewis Sowers, a Caucasian male, heard the disturbance at the counter of the Restaurant. Mr. Sowers asked Petitioner and the other gentlemen to leave the Restaurant. Mr. Sowers contacted the police department regarding the disturbance, and the officer on the scene completed a police report. A copy of the police report was admitted into evidence as Respondent’s Exhibit 2 without objection. The alleged discrimination by Ms. Lopez did not impede Petitioner’s ability to contract for goods or services at the Restaurant. The absence of a receipt did not prevent Respondent’s employee from serving Petitioner his food order, and the order appeared to be correct. Once Petitioner received his refund, Petitioner had no intention of staying in the Restaurant and does not have a practice of visiting Burger King restaurants unless he is eating there. Thus, any attempt to contract for goods and services with Respondent had terminated before the alleged discrimination. Petitioner did not see any other customers who lost or did not produce their receipts. Petitioner did not recall the race or national origin of any other customers who may have had their food order served in a different manner. Petitioner presented no evidence of any damages sustained as a result of the alleged discrimination. Petitioner failed to answer Respondent’s Request for Documents evidencing mental anguish, suffering or punitive damage awards he believed to be appropriate.
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 Respondent not guilty of the alleged discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2008.
Findings Of Fact Petitioner Heylmann began work as a server at J.B. Winberie Restaurant & Bar in Tampa, Florida, on June 2, 1987. The restaurant is a member of a restaurant chain belonging to Stouffer Restaurant Company. Petitioner was highly skilled and extremely competent at his chosen occupation. This was acknowledged throughout these proceedings. Petitioner was first diagnosed as having acquired human immune deficiency virus in November of 1989. He did not tell anyone at the restaurant of his condition for fear of losing his job and the medical benefits provided by Respondent Stouffer. To protect his right to confidentiality about his medical condition, Petitioner took two precautions: First, he advised United Medical Resources, Inc., the third party administrator of Respondent's health insurance benefits program, that he wanted information regarding his medical claims to be kept confidential. Second, he chose to pick-up partially completed claim forms from the local restaurant's officer manager verifying his employment (Part B) prior to his completion of the medical information (Part A). Petitioner would then submit each claim directly to United Medical Resources, Inc. This process prevented someone in the restaurant from accidentally discovering through his claim forms that he had human immune deficiency virus. As the administrator of the Stouffer Health Benefits Trust for Respondent Stouffer, United Medical Resources, Inc. was authorized to review an employee's medical records only for the purpose of evaluating and administrating claims for benefits. Otherwise, the information was considered confidential and was not shared with Respondent Stouffer. An interoffice memorandum relating to Claim No. 005900855 filed by Petitioner, indicates United Medical Resources, Inc., was aware that medical bills relating to Petitioner's treatment were confidential and were not to be transmitted to the employer. The process of completing (Part A) of a claim form, after receiving (Part B) from the employee representative assigned to complete such a form, was not a change in practice for Petitioner. This is the format he used to complete such forms throughout his employment with Respondent. Claim Form No. 005900855 for Petitioner's treatment on December 14, 1989, was improperly filled out by the restaurant. Part B did not contain a date to verify employment during the period benefits were requested. This omission was not discovered until the processing of the claim on January 18, 1990. On February 1, 1990, the claims examiner was advised by her supervisor to return the form to the office manager at the restaurant to properly complete Part B. Because Part A and Part B of the claim form are on a single sheet of paper, the portion of the form completed by Petitioner was also transmitted back to the office manager. Petitioner had not placed the nature of his illness on this form. As a result, there was nothing on this form which could inform the employer of his medical condition or the diagnosis. J.B. Winberie Restaurant and Bar serves a buffet on Sundays. The Easter buffet on April 15, 1990, was expected to draw a large crowd because that particular day is one of the busiest days of the year for restaurants. Petitioner was scheduled to work an eight hour shift on this particular Sunday. As anticipated, the restaurant was very busy and contained a number of large parties. At this restaurant, a large party is defined as six or more people who are dining together. Under such circumstances, the restaurant has a tip policy that allows the server to add a 15% gratuity to the check prior to presentation. This amount must be clearly identified on the check as a 15% gratuity, then totalled to arrive at the sum owed. The server presenting the bill has to inform the guest of the policy and the inclusion of the tip on the check. Petitioner was assigned a party of ten during the busiest seating on Easter Sunday. The table included six adults and four children. This particular party was an indecisive one with lots of needs and activity. It would have been difficult for most experienced servers to deal with this multi-generational table during a day as busy as the one the restaurant was having. The group constantly required drinks and plate removals. The grandmother could not decide whether she was going to eat brunch and the children were messy. In spite of the demands upon him, Petitioner believed he served well and that his attention and skills were appreciated. Some of the adult males at the table entered into a good natured rivalry regarding who would pick up the check for brunch. One of the men left the table and approached Petitioner back by the kitchen. He asked if the check could be prepared and presented to him immediately so that he could pay it and thereby eliminate the payment controversy. Petitioner recalls explaining the gratuity policy, but his check presentation was disorderly due to the hurried nature of the situation and his need to explain an overring and some changes made to the charges. Although a $12.50 gratuity was added per the restaurant policy, it was not clearly denoted as a tip on the check. In fact, the check specifically reads "Gratuity not included." The charge slip, which was completed in addition to the check, reflected the 15% tip in the total. A separate space on the charge slip for a gratuity remained blank. When the guest completed the slip, he told Petitioner he was adding something extra because of his good service. The charge slip included another $15.00 tip. Petitioner assumed the additional tip was added as a tribute to his efforts. It is not unusual for people with messy children to leave additional or larger tips because of the efforts a server has to make to clean the area during and after the meal. Actually, this guest did not realize a tip had already been in the total charges presented to him. The guest believed he was providing Petitioner's first tip when he filled out the charge slip. After he had left the restaurant, this guest became aware that he had given Petitioner a total of $27.50 in gratuities for a bill of $82.13. The man called the restaurant the next day and accused Petitioner of a dishonest act. When the bill was reviewed by management, it was noticed that Petitioner did not clearly write on the check that he had included a $12.50 gratuity. This omission tended to corroborate the guest's accusation that a dishonest act occurred. One of the reasons the special policy regarding gratuities for large parties requires servers to write down the gratuity and explain the policy is to prevent a server from overloading the tip. That Monday was Petitioner's day off. When he was called and questioned about the incident, he explained a mistake had occurred. Petitioner offered to give the man back the $12.50 reflected in the check prior to the addition of the second tip of $15.00. In an attempt to reconcile the guest's accusation and Petitioner's explanation, the manager compared this check with two large party Sunday brunch checks prepared by Petitioner the week before. The comparison of the earlier checks with the present check revealed that Petitioner had changed the way he completed the form. The complaining guest's check did not comply with the restaurant policy regarding gratuities from large parties. The earlier checks did satisfy policy requirements. The lack of proper notations on the present check made it reasonably appear to management that Petitioner had deliberately changed his check preparation and was seeking a double tip from the complaining guest. Assuming Petitioner tried to take advantage of this guest who used a charge card, he was terminated immediately for dishonesty towards a guest on April 17, 1990. The employee handbook in effect at the time permitted termination without warning for theft or dishonesty toward guests. Petitioner, who knew himself to be scrupulously honest, was shocked by the termination decision. To reconcile the decision with his self knowledge, he began to assume there was another reason or motive behind the adverse personnel action. After termination, Petitioner learned his bill for medical treatment on December 14, 1989, was still outstanding. On that particular date, he had received treatment for human immune deficiency virus. When United Medical Resources, Inc. was called by Petitioner, it was explained that the claim form had been mailed back to the restaurant office, where he worked. Once Petitioner had this information, he assumed the portion of the form completed by him revealed he had a condition related to AIDS. He then theorized that this information was what caused his termination. Knowing himself to be honest, and assuming that he had earned the right to be believed over a guest when a misunderstanding occurred about a tip, Petitioner began to believe that the given reason for termination was pretextual. Respondent was incorrect in its termination decision as Petitioner did not intentionally deceive the guest into giving him a second tip. The decision to terminate, however, was reasonable under the circumstances, as perceived by the restaurant manager. Petitioner was mistaken in his theory that the restaurant and Stouffer personnel knew he had contracted an AIDS related disease and was being medically treated for the condition. No one knew of his diagnosis until after his termination. Claim No. 005900855 was ultimately paid by United Medical Resources, Inc. on June 28, 1990.
Recommendation Based upon the foregoing, it is recommended that the Florida Commission on Human Relations enter its Final Order dismissing the Petition for Relief. RECOMMENDED this 2nd day of April, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-8286 Proposed findings of fact submitted by Respondent are addressed as follows: Accepted. See Preliminary Statement. Accepted. See Appearances. Accepted. Accepted. See HO #1. Accepted. Accepted. See HO #3. Accepted. See HO #3. Accepted. First sentence accepted. Second sentence rejected. Contrary to fact. See HO #10. Rejected. Contrary to fact. See HO #10 and Exhibit C. Accepted. See HO #29. Accepted. See HO #26. Rejected. Contrary to fact. See HO #31-#32. Accepted. Accepted. Accepted. Accepted. Accepted. Accept first sentence. See HO #3. Reject second sentence. Contrary to fact. Accept third sentence. See HO #4. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #4 and #7. Accepted. See HO #30. Accepted. Accepted. Rejected. Irrelevant. Accepted. Accepted. See HO #31. Accepted. Rejected. Irrelevant. Accepted. See HO #13. Accepted. Accepted. See HO #13. 34. Accepted. See HO #13. 35. Accepted. See HO #23 and #24. 36. Accepted. See HO #18. 37. Accepted. See HO #23. 38. Accepted. See HO #18 and #19. 39. Rejected. Irrelevant. 40. Accepted. 41. Accepted. 42. Accepted. See HO #27. 43. Accepted. See HO #25. 44. Accepted. See HO #33. 45. Accepted. 46. Accepted. See HO #33. 47. Accepted. 48. Accepted. 49. Accepted. 50. Accepted. 51. Accepted. 52. Accepted. 53. Accepted. See HO #33. 54. Accepted. 55. Accepted. See HO #10. 56. Accepted. See HO #5. COPIES FURNISHED: ERICH HEYLMANN 109 S WESTLAND AVE TAMPA FL 33606 MARY LEE PILLA ESQ 30003 BAINBRIDGE RD SOLON OH 44139 2290 MARGARET A JONES/CLERK FL COMMISSION ON HUMAN RELATIONS BLDG F STE 240 325 JOHN KNOX RD TALLAHASSEE FL 32399 1570 DANA BAIRD ESQ GENERAL COUNSEL FL COMMISSION ON HUMAN RELATIONS BLDG F STE 240 325 JOHN KNOX RD TALLAHASSEE FL 32399 1570
