The Issue The ultimate issue to be resolved in this proceeding is whether the Development Order issued by the City of Miami for development approval for the Watson Island theme park should affirmed, affirmed with conditions, or reversed. In the Prehearing Stipulation, the Appellant stated its case as follows: The DRI Application for Development Approval (ADA) filed by the City of Miami is insufficient. The Council, after reviewing the ADA, notified the City of its insufficiency, the City refused to submit the supplemental information requested and decided to proceed with DRI review upon this insufficient ADA. In order to fulfill its statutory duty to assess the impacts of a DRI, a regional planning agency must be provided with adequate, competent, and credible information. In this case, the SFRPC has insufficient information concerning the developer's plans, methods and technology for it to evaluate the proposed development and any resulting adverse impacts and to adequately recommend mitigative measures. Further, an ADA is a binding document which serves as the basis for determining whether the develop- ment is constructed as approved and the ADA is therefore required to be incorporated in the Development Order. The Development Order should be set aside and the City should be directed to prepare a sufficient ADA. The Council further contends that the adverse regional impacts of the proposed development identified by the SFRPC in its Staff Assessment are not adequately considered and mitigated in the Development Order. The Development Order is insufficient because of the inadequate consideration of regional impacts, the failure to incorporate the Watson Island ADA, the City's reliance upon an insufficient ADA, and the City's perfunctory dismissal of the Council's recommended changes that would make the project eligible for approval. Further, the Resolution fails to comply with the legal requirements of Fla. Admin. Code Rule 22F-1.23 and Section 380.06, as amended by Chapter 380, Florida Statutes, in the following regards: It does not incorporate the Development Order. It does not authorize the City Clerk to send certified copies of the Development Order to the state land planning agency and to the COUNCIL. It does not specify monitoring procedures and the local official responsible for assuring the develop- ment's compliance with the Development Order. It does not establish an expiration date for the Development Order, including a deadline for commencing physical development, for compliance with conditions of approval, and for the termination of the Order. It does not specify the requirements for the Annual Report designated under subsection (16) of Section 380.06, Florida Statutes. It does not specify the types of change in the development which require a submission for a substantial deviation determination under subsection (17)(a) of Section 380.06, Florida Statutes. For the aforementioned reasons the Council requests that the Development Order of the City of Miami Commission be set aside and the City's ADA be returned to the Council with directions to the City to provide adequate, consistent, reliable information and proposals to mitigate the identified adverse regional impacts of the Watson Island Development. The Respondent stated its case in the Prehearing Stipulation as follows: That Section 380.07, Florida Statutes is invalid for vagueness and that this hearing pursuant to said statute is, therefore, invalid for the following reasons: That Section 380.07, Florida Statutes, is invalid for vagueness and that this hearing pursuant to said statute is, therefore, invalid for the following reasons: The statute has no standards, guidelines or criteria upon which the Florida Land & Water Adjudicatory Commission may properly render a decision on whether the Development Order is meritorious in a quasi- judicial proceeding. The standards set forth in Section 380.06(11)(2), F.S. (1980) are so general, broad and vague as to be meaningless. In terms of the constitutional validity of Section 380.06(2) and 380.10, F.S., it appears that the Legislature has sought to make a final determination of the law by concurrent resolution rather than by statute, despite the language of Article III of the Florida Constitution. c The statute nowhere indicates which party shall be the Plaintiff and which party shall be the Defendant, or which party shall carry the burden of proof in a de novo proceeding. That the city filed a detailed and comprehensive application with the South Florida Regional Planning Council seeking the Council's approval of the Watson Island Project pursuant to Section 380.06, F.S. That the City of Miami, by a Public Hearing, adopted a resolution approving and issuing a developmental order pertaining to the Watson Island Project and incorporating numerous modifications suggested by the South Florida Regional Planning Council. The procedure was in compliance with Section 360-06, F.S. and FLA. ADMIN. RULE 22 F-123. That the Watson Island Project, as approved in the developmental order with modifications, was and is in the public interest on environmental, physical and other grounds. That the Watson Island Project has no substantial regional impact as defined in Section 380.06(1), and The Land and Water Adjudicatory Commission is estopped from rendering a decision since a Court in a bond validation proceeding has already determined that the Watson Island Project served a valid public purpose.
Findings Of Fact Watson Island is a parcel of land lying in Biscayne Bay in the City of Miami, Dade County, Florida. It is approximately eighty-six acres in size. Watson Island has an unnatural genesis. It was formed as a spoil island, receiving deposits of dredged material as a result of construction and maintenance of various channels in Biscayne Bay. The island forms a portion of the "General Douglas MacArthur Causeway" which is a highway connecting the mainland with the City of Miami Beach. The causeway is also designated as U.S. Highway 41 and State Road A-1-A. Watson Island presently serves as a recreational facility. It is commonly used as a picnic area, and as a launching site for recreational boats into Biscayne Bay. The Miami Yacht Club and the Miami Outboard Club utilize the island as a center for their activities. There is a Japanese garden maintained on the island, and Chalk's Seaplane Service and a heliport are operated as commercial enterprises. Watson Island is owned by the City of Miami. [This finding is determined from Hearing Officer's Exhibit A; Exhibits 5, 10, and 15; and testimony from members of the general public.] The City of Miami is proposing to construct an amusement theme park on Watson Island. The seaplane service and heliport presently in operation would be moved to other locations on the island. The Japanese garden would be maintained. The park as proposed would be designed to combine specialty shops, rides, restaurants, shows and handicraft exhibits. The primary themes would be a "Caribbean international village," a "turn-of-the-century promenade," and "Old Florida" amusement and entertainment areas. There would be a variety of amusement-park type rides. The project includes plans for construction of two new marinas, a 1,500 foot cultural hall for musical and theater presentations, a film theater and various other entertainment facilities. On-site parking would be provided for more than 3,000 cars an buses. The project has been designed to provide entertainment for people of all ages, and of varying interests. The City is seeking to provide an attraction to serve the recreational needs of local residents, and to attract additional tourists to the South Florida area. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 10, 15, and 25.] The City of Miami has been engaged in planning and designing the proposed Watson Island theme park for several years. Private consultants have been retained to assist the City, and the City's own staff as well as staff from other governmental entities have been consulted. The City apparently assumed from the outset that the project would be a development of regional impact as contemplated by Chapter 380, Florida Statutes, and approval of the project as specified in that Chapter has been sought. The provisions of Chapter 380 require that developments of regional impact be reviewed by the appropriate regional planning agency. The regional planning agency which reviews proposed developments of regional impact in Dade County is the South Florida Regional Planning Council (SFRPC hereafter). The City filed its initial request for review of the proposed Watson Island development with the SFRPC on October 24, 1979. The SFRPC returned the request and accompanying data to the city on November 9, 1979, and requested further data. The city filed its second request for review in February, 1980. The SFRPC again requested additional data. By letter dated March 25, 1980, the City declined to provide additional information, and the SFRPC proceeded to consider the proposed development. The SFRPC staff issued a report in May, 1980. The City responded, and the staff replied. The SFRPC conducted a public hearing on June 2, 1980, and on June 3 published its final assessment of the proposed development, recommending to the City of Miami that the development not be approved. In addition to being the applicant or developer in this case, the City of Miami is also the local government with authority to issue a Development Order. The City conducted public hearings on June 26 and July 10, 1980, and issued a Development Order approving the development as described in the application for development approval. The instant appeal proceeding initiated pursuant to Section 380.07, Florida Statutes, ensued. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 7, 10, 12, 13, 14, 15, 20, 27, 30, 32, 33, and 47.] The final report of the SFRPC identifies numerous adverse impacts and risks associated with the proposed Watson Island development. While the SFRPC has contended that the City has not adequately addressed these matters in its Development Order, there has been no evidence offered that several of the asserted impacts would have any consequence beyond the immediate area of Watson Island or the City of Miami. The impacts which the evidence does not establish have consequences beyond the City of Miami are: (a) that the project makes ineffective use of the extensive shoreline by constructing non-water dependent facilities along the waterfront; (b) that the project and its associated activities are expected to result in an increase in air pollution emissions; (c) that noise disturbance generated by the project would result in noise levels incompatible with nearby residential areas; (d) that the project locates a large public investment for non-water dependent activities in a flood problem area; that the proposed project would eliminate an opportunity for free public access to a waterfront area; (f) that the health and safety of theme park patrons would be at risk because the plan provides no means of access for emergency service vehicles; and (g) that handicapped patrons would be prevented from ready access to the park because of improper design of a pedestrian bridge. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 7, 10, 12, 15, 20, 25, 27, 30, and 32.] In addition to the matters set out in paragraph 4, the SFRPC has contended and sought to establish that the proposed development would have adverse impacts beyond the City of Miami relating to transportation facilities, water quality, and fiscal impact. [This finding is determined from Hearing Officer's Exhibit A.] The Development Order was issued by the City of Miami in the form of a Resolution with an accompanying document labeled "Development Order." The Resolution included the following language: A development order approving with modifications, the Watson Island development, a development of regional impact, proposed by the City of Miami, located on Watson Island and bay bottom in Biscayne Bay, be and the same is hereby granted and issued. While the Resolution does not explicitly incorporate the Development Order by reference, the Development Order is inextricably a part of the Resolution. The Development Order was attached to the Resolution, and was stamped with the same resolution number (80-525) as the Resolution. The Resolution and Development Order include the recitations required by statute and rule. There is no evidence in the record from which it could be concluded that the Development Order was not in existence at the time that the Resolution was adopted. [This finding is determined from Exhibit 32.] Watson Island lies on both sides of a highway which is designated as Federal Route 41, and State Road A-1-A. The roadway is a regional highway facility, connecting the City of Miami on the mainland with the City of Miami Beach. These are regionally significant activity centers. A substantially increased volume of traffic on the roadway would reduce accessibility between them. The roadway is not maintained by local government for local resident purposes, but rather is a state and federal highway of regional importance. Data provided by the City of Miami in support of its contention that the proposed development would have no significant traffic impact is deficient because it understates the traffic impact of the proposed development, overstates roadway capacities, and understates increased levels of roadway usage that are likely to result without regard to the Watson Island development. The City has estimated that ten thousand persons a day will visit Watson Island, and that thirty percent of these will arrive through some means of public transportation. The nature of this public transportation is not identified. No plans exist to connect Watson Island with any presently existing or proposed public transportation facilities. The thirty percent estimate was offered by one of the City's private consultants which does not appear to be a traffic consultant. The estimate is not supported by evidence of record, and could not be achieved without the existence of public transportation facilities to accomplish it. The City's estimate of average daily vehicle trips on the MacArthur Causeway that would be generated by the Watson Island development (5,408) is thus understated by as much as thirty percent. The City has based its estimate of the traffic carrying capacity of the MacArthur Causeway upon an assumption that traffic lanes to the east of Watson Island will be widened. There are no existing plans to accomplish widening of the roadway, and no money for that purpose has been budgeted. The City has contended that traffic growth on the MacArthur Causeway between 1980 and 1985 can be estimated at 2.27 percent. This estimate is based upon growth reflected during the years 1975 to 1979 at one location on the causeway. The Dade County Department of Traffic and Transportation and the Florida Department of Transportation consider that 3.5 percent is a more realistic growth figure. This latter figure is more credible, and is itself conservative when other large planned developments in close proximity to the MacArthur Causeway are considered. These include projects known as Fisher Island, Ball Point, Downtown Government Center, DuPont Plaza, Southeast Financial Center, and World Trade Center. Unless adequate provision is made to expand the load carrying capacity of the MacArthur Causeway and to provide viable alternate means of reaching Watson Island, the traffic impact of the proposed development would substantially and adversely affect traffic flow on the MacArthur Causeway. The MacArthur Causeway presently functions to adequately accommodate vehicle usage at most locations during most times of the day. At peak traffic periods, however, the causeway is over-utilized. Placing an additional heavy traffic burden upon the causeway would render its level of service poor during substantial parts of the day. The impact would extend to other regional roadways including U.S. Highway 1 and Interstate Highway 95. [This finding is determined from Exhibits 5, 7, 10, 12, 15, 20, 27, 30, 32, 39, and 46.] Watson Island is located across a channel known as "Government Cut" from the Port of Miami. The Port of Miami is presently engaged in expansion which is being financed through public expenditures. The port utilizes a turning basin which is directly adjacent to the west side of Watson Island. The turning basin measures approximately 1,600 feet across and is barely adequate to accommodate ships which utilize the port. A larger generation of ships, including a passenger ship known as the S/S Norway, have made plans to utilize the Port of Miami. Such use will necessitate an expansion of the turning basin to at least 2,000 feet. The proposed Watson Island development includes a marina on the west side of the island. The marina would accommodate approximately 165 boats. The marina would interfere with the present turning basin, and would prevent expansion. The increased boat traffic that would result from operation of the marina would further restrict the turning basin and inhibit planned and projected growth for the Port of Miami. The Port of Miami is a regional transportation facility. Unless the marina proposed on the west side of Watson Island is eliminated or relocated, operation and projected growth of the Port of Miami will be impeded. The result would be a diversion of shipping traffic from the port. The Development Order issued by the City of Miami requires that the City work with the Port Authority and the local pilots' association to assure that the Watson Island development does not interfere with port operations. The Development Order, however, allows implementation of a project which will interfere with operations and expansion of the port. [This finding is determined from Exhibits 5, 7, 10, 15, 20, 24, 27, 30, and 32.] The SFRPC has contended that the proposed Watson Island development would have an adverse impact upon water quality in Biscayne Bay, and that this impact is of significance beyond the City of Miami. This contention is not supported by the evidence. The water quality impacts asserted by the SFRPC are short-term impacts that would result from construction activities, and long-term impacts that would result from dredging, increased drainage runoff, and loss of wetlands. As to the short-term impacts, the City proposes to utilize turbidity screens and construction techniques that would minimize and confine turbidity that would result from construction. The only dredging activities that are proposed are in connection with the laying of sewer lines from the island to a regional sewage treatment facility, and in connection with laying pilings for the proposed marinas. The short-term consequences of these dredging activities can be minimized or eliminated through proper construction techniques which the City of Miami proposes to utilize. The long-term effects of dredging activities have not been shown to be significant. No new channels nor subsurface conditions are anticipated. The SFRPC has expressed concern that water depths in the areas of the proposed marinas are shown in the application for development approval to be deeper than at present. Obviously, dredging, with potentially permanent negative environmental impact, would be required to accomplish an increase in water depth. In other portions of the application for development approval, the City has indicated that it intends to do no such dredging. To alleviate any possibility for misconstruction of the application for development approval, any development order that is approved should include a prohibition against dredging beyond that necessary to accomplish the laying of sewer lines and the installation of pilings. The SFRPC contends that there will be increased runoff entering directly into Biscayne Bay as a result of the development because the presently permeable surfaces of Watson Island would be replaced with primarily impermeable surfaces. The City has, however, proposed a system of swales which will result in most runoff being caught and sent through permeable surfaces into Biscayne Bay rather than directly. The water quality impact of runoff, given the present condition of Watson Island, would therefore be minimal, except during periods of heavy storms when the swale system would be inadequate to trap all of the runoff. The evidence does not establish that the environmental impact of runoff after a heavy storm would be significant in terms of water quality in Biscayne Bay. Construction of a proposed marina on the north side of Watson Island would eliminate approximately 470 square feet of red, black, and white mangroves. The evidence does not establish what environmental impact the elimination of such a small quantity of mangroves would have on water quality in Biscayne Bay. Whatever the consequence, the City has proposed to replace the mangroves on a nearby island at a ratio of four mangroves planted for each destroyed. The record in this case does not establish the positive environmental aspects of mangrove populations. Even assuming, as has been established in other cases [see e.g. Graham v. Estuary Properties, Inc., So.2d (Supreme Court of Florida Case No. 58,485, April 16, 1981)], that destruction of large mangrove populations would have severe environmental impact, it cannot be concluded that the Watson Island mangroves are environmentally significant. Only a very small community, estimated at less than 100 plants, is involved, and the City proposes to create an expanded mangrove population in another location to compensate. [This finding is determined from Exhibits 5, 7, 10, 15, 18, 19, 20, 27, 30, 32, and 36.] The SFRPC asserts that if operation of the proposed amusement theme part were unsuccessful, the economic consequence to the city of Miami could be so severe as to have direct fiscal consequence in adjoining areas, rendering it difficult for other local governments to finance public projects. The contention is not supported by evidence of record. The City would undoubtedly be taking a significant economic risk by developing and operating the proposed Watson Island amusement park. The project is being financed through issuances of municipal revenue bonds, and through grants from the Federal Government which have not yet been secured. The City intends to sell $55 million in municipal revenue bonds. Of this amount there will be an issuance of "Series A" revenue bonds in the amount of $35 million which would be secured by revenues from the amusement park project solely. The remaining $20 million would be designated "Series B" tax supported bonds, and would be secured first by project revenues, and secondly by City of Miami non-ad valorem taxes, revenues, and fees. Thus, if the amusement park did not yield revenues sufficient to service the bond debt, the City could be responsible for up to $20 million plus interest payable from city funds. In addition, the City would be obliged to pay for various services that would be rendered to the park, including fire protection services, potable water facilities, wastewater treatment facilities, and miscellaneous other facilities. The City would also be obliged to pay, under its contract with a private management firm, Diplomat World Enterprises, $12 million as a management fee for operation of the project during the first five years of its operation. All of these amounts would be financed through revenues of the amusement park if the park generated sufficient revenues. If it did not, the City would be obliged to use its general revenues. The City projects that the project will pay for itself, and perhaps show a net profit as early as the third year of operation. This projection is based upon information provided by the City's consultant, Economic Research Associates, a consulting firm that has provided services to numerous major amusement theme parks. In some respects, the economic projection for the proposed development seems overly optimistic. For example, it is estimated that the park would draw three million visitors during the third year of its operation. This is a larger projected attendance than is realized by several already existing theme parks which are larger than that proposed on Watson Island, including Busch Gardens in Tampa, Florida, and Six Flags Over Georgia in Atlanta, Georgia. While the projections are optimistic, they may be realizable due to the fact that the Watson Island park would be open every day, and in the evenings. Furthermore, the park is located in a large metropolitan area with that clientele as well as a significant tourist clientele to draw upon. The estimates are supported by the experts best able to make them, and are not refuted by competent evidence of record. This is not to say that the evidence would support a finding that the proposed Watson Island development would be a successful operation in fiscal terms. The evidence does, however, establish that there is a favorable prospect that the project can be operated without a negative fiscal impact upon the City of Miami. There is no evidence in the record from which it could be concluded that the fiscal impact upon the City of Miami would be so adverse as to have impact beyond the City even if the project were a total failure. No evidence was offered to show the fiscal position of the City of Miami, nor its ability to adequately handle the debt that it would be undertaking by developing the proposed amusement park. The proposed Watson Island theme park would have several favorable economic impacts. Construction jobs would be made available during that phase of project, and approximately one thousand full or part-time employees would be required to operate the park. The park would serve as an attraction to increase the tourist trade within the region. The project would thus have the effect of stimulating commerce in the region and producing additional jobs, including jobs for low income and minority persons. [This finding is determined from Exhibits 5, 7, 10, 12, 15, 20, 25, 27, 30, 32, 41, 42, 43, and 45; and from the public testimony.]
Findings Of Fact At all times pertinent to the issues considered at this hearing, Respondent, Dale's Package Store and Lounge, Inc., was issued 6-COP alcoholic beverage license No. 20-0012, which permits the on-premises consumption or sealed package sales of beer, wine, and liquor and the carry out sales of open malt or vinegar spirits, but not mixed drinks. On May 13, 1983, Investigator Robert W. Cunningham visited the licensed premises based on an anonymous phone call he had received at home to the effect that a lottery was being conducted there. When he entered the lounge, he saw a poster sitting on the first table inside the door. This poster contained a list of items of merchandise or services to be given as prizes and a notation of the prices for tickets. While he was looking at this display, he was approached by a patron, Edward Hanson, who asked if Cunningham wanted a ticket. When Cunningham said he did, Hanson went to the bar, where he spoke with Cindy, the bartender, and came back with a large roll of tickets, telling Cunningham to take as many as he wished. Cunningham took three and paid the $2 which the poster indicated was the price for the tickets. Half of each ticket was put in the box for the drawing. After the ticket transaction, Cunningham went up to Cindy and asked her who was in charge. When told it was Mickey (Naomi Hunt), he went into the back room, where he found her and told her it was an illegal lottery that had to stop. He also talked at that time with Susan Roberts, a representative of the local Multiple Sclerosis Foundation chapter for whom the lottery was being conducted. Ms. Roberts advised Cunningham she had discussed the matter with one of the local assistant state attorneys, who said it was all right, but she could not recall his name. Cunningham had advised Naomi Hunt to call Mr. Eggers initially, and Eggers said he would come down. Cunningham also called his district supervisor, Capt. Caplano, because, due to the size of the crowd in the bar at the time, between 200 and 250 people, he felt he needed a backup. Caplano agreed to come down to the lounge, as well. Caplano also advised Cunningham that the procedure was an unlawful lottery and the tickets and money should be seized. When Eggers got there, he told Cunningham that the entire activity was for the benefit of the Multiple Sclerosis Foundation and that his employees had been out soliciting the donation of the prizes for months. Respondent admits the conduct of the operation as the Roadhouse Inn's participation in the fund-raising campaign of the North Florida Chapter of the Multiple Sclerosis Foundation. Respondent has been approached by that agency with a kit of fund-raising activities and ideas. Before participating in the lottery, Mr. Eggers asked and was advised by both Ms. Hunt, his employee, and Ms. Roberts of the Foundation that they had inquired into and were advised of the project's legality. If the law was violated, it was done without criminal intent and without malice. A well-intentioned effort to do some good was in error. It should be noted, however, that in January 1977, this licensee was cited by Petitioner's Agent R. A. Boyd for operating a bowling machine on the premises. If the customer bowled a high score on the machine, he or she would win something, such as a drink or a snack. This was considered gambling by Petitioner, however; and upon issuance of the citation, Respondent immediately stopped the activity. No charge was laid against the licensee for that activity. Several days after Cunningham closed down the lottery, on May 19, 1983, Beverage Officer Reeves went to the licensed establishment based on a complaint received that alcoholic beverages were being served by the drink at the curb. He went to the drive-in window of the Inn and ordered a scotch and water from Naomi. She brought him a drink in a plastic cup. From his experience, he recognized the substance as scotch and water. After getting the drink, he parked the car and went inside, where he talked with Naomi and Eggers. They indicated they did not know it was illegal to sell a drink this way. Eggers indicated at the hearing that he thought that since he could sell open beer drinks out the drive-in window, he could do the same with mixed drinks. He does not have any copy of the beverage laws, thought he was operating legally, and has been doing it without objection since 1977. Since Reeves' visit, the sale of distilled spirits by the drink through the window has ceased.
The Issue Whether Petitioner, Sergey P. Shashelev, was subject to an unlawful employment practice by Respondent, Cirque du Soleil, based on his age and disability in violation of the Florida Civil Rights Act, section 760.10, Florida Statutes.
Findings Of Fact Cirque is a live entertainment company founded in Quebec, Canada, that dedicates itself to creating, producing, and performing artistic works around the world. Cirque currently presents a show called “La Nouba” in Orlando, Florida. La Nouba is a contemporary circus performance featuring acrobats, gymnasts, and other skilled performers, including clowns. La Nouba employs approximately 65 performers. La Nouba is a resident show located at Disney Springs at the Walt Disney World Resort (“Disney”) in Orlando. Cirque contracts with Disney to present La Nouba at Disney Springs. La Nouba is housed in a fixed theatre and does not travel. La Nouba has presented ten shows a week at Disney since 1998. Petitioner was born in Russia in 1960. He was born deaf. From the time Petitioner turned eight years old, he knew he wanted to be a clown. During his teens, Petitioner studied miming. He soon became a highly trained artist with a unique skill in pantomime. When Petitioner was 21, he joined the Leningrad Litsedei (“the Jesters”) Clown Mime Theater, world renowned clowns and mimes. For the next 15 years, Petitioner toured the world with the Letsedei group performing and developing his clown personality. Because Petitioner has been deaf since birth, he is not able to speak. Petitioner communicates through sign language. Petitioner is proficient in ASL, Russian Sign Language, and Quebec Sign Language (used in French-speaking parts of Canada). Petitioner considers Russian Sign Language his native tongue. His ability to read and comprehend English text is limited. The parties both described clowning as an art form. Clowns are artists, and each individual clown is unique. The art of clowning comes from the performer’s heart. Clowns have different personalities, emotions, rhythm, sensibilities, and style. Even if two clowns performed the same act, the performance would look different. Cirque first hired Petitioner in January 1994. Mr. Gilles St. Croix, Cirque’s Creative Guide, hired Petitioner to perform in the Cirque show “Alegria.” Cirque hired Petitioner for his miming skills. Based on Petitioner’s artistic specialty and clown personality, Cirque chose Petitioner to portray a “down-and-out” clown. Cirque readily agrees that Petitioner is a very talented, “world-class” clown. (Cirque expressed that it would hire no less.) Cirque does not dispute that Petitioner is a master at his craft. When Petitioner’s contract with Alegria ended, Mr. St. Croix asked Petitioner to join the cast of a new production Cirque was developing in Orlando that would become La Nouba. Mr. St. Croix was aware that Petitioner was deaf when he hired him. Cirque viewed Petitioner’s disability as an asset. Petitioner’s disability became a gift to his performance and creativity. Miming allowed him to communicate with people of many nationalities. Cirque hired Petitioner together with his partner, Michel Deschamps, who went by the clown name “Balto.” Petitioner and Balto created five clown acts that were incorporated into La Nouba. The combined acts took up approximately 15 to 18 minutes of show time. From 1998 through 2014, Petitioner performed the same clown act with Balto. Petitioner and Balto were part of La Nouba’s original cast and always performed their clown act together. Currently, La Nouba artists and performers report to Daniel Ross, La Nouba’s Artistic Director. Mr. Ross became the production’s Artistic Director in 2010. Mr. Ross reports to the Senior Artistic Director, Pierre Parisien. Mr. Parisien became the Senior Artistic Director for La Nouba in 2000. Neil Boyd is La Nouba’s current Company Manager. Cirque’s workforce is diverse. Across its worldwide productions, Cirque employs approximately 1,300 individuals who are 40 or older including four or five clowns. At La Nouba, approximately 70 Cirque employees are over 40. Cirque also employs individuals who have disabilities. Two of these employees are clowns and are also deaf or hard of hearing. Cirque enters into individual written contracts with its artists. The initial Artist Agreement (“Artist Agreement”) is for a period of two years. Thereafter, each contract is renewable in one-year increments. Cirque drafted Artist Agreements for a defined period of time because Cirque desired to maintain the flexibility to adjust or change its shows and artists when necessary. Cirque never intended its artists to be permanent performers in a production. Cirque regularly replaces artists and integrates new acts into existing shows. Accordingly, Artist Agreements allow Cirque to terminate an artist at any time. In April 1998, Petitioner and Cirque executed a Letter of Intent whereby Petitioner agreed to begin work for La Nouba. In March 1999, after a negotiation process, Petitioner signed a formal Guest Artist Agreement for La Nouba. Petitioner’s initial Artist Agreement ran from October 5, 1998, through December 22, 2000 (notwithstanding the date of Petitioner’s signature). Thereafter, Petitioner’s Artist Agreement could be renewed every year “upon the mutual consent of both parties” for “additional and consecutive periods of one (1) year each.” Petitioner signed the Artist Agreement and initialed every page. Cirque and Petitioner subsequently renewed his Artist Agreement every year from 2000 through 2013 in one-year increments. On August 16, 2013, Petitioner and Cirque signed what was to become Petitioner’s final contract extension. The parties agreed to renew Petitioner’s Artist Agreement for the period running from January 1, 2014, through December 31, 2014. Petitioner’s Artist Agreement was written in English. Petitioner testified that, because he could not read English, he did not comprehend all the contract provisions. He just signed the Artist Agreement and went to work. Petitioner expressed that at the time he executed his initial contract, he believed that his position was permanent until he decided to leave or retire. Petitioner’s Artist Agreement did not contain any written provisions stating that Petitioner could stay at La Nouba until he retired from the show. On the contrary, Cirque could terminate Petitioner’s Artist Agreement at any time without cause. As stated in Petitioner’s Artist Agreement, section 9.3: [Cirque du Soleil Orlando, Inc.] shall have the right to terminate this agreement without cause, upon simple notice to the Artist, provided the Producer pays the Artist, as severance compensation, the amount determined in accordance with the calculations mentioned in Schedule D to this agreement. Cirque also prepared a separate annual contract renewal letter which indicates whether an artist receives a raise. In Petitioner’s August 16, 2013, renewal letter, Cirque agreed to pay Petitioner $506.66 for each La Nouba performance or approximately $250,000 per year. Cirque highly compensates its clowns because they are unique and difficult to find. By the end of his employment, Petitioner was one of Cirque’s highest paid performing artists. In addition to the Artist Agreement, Cirque employees receive the Cirque Human Resource Artist Rules and Policies Manual (“Rules and Policies Manual”). During Petitioner’s employment with La Nouba, Cirque voluntarily arranged and paid for Petitioner to use certified ASL interpreters on many occasions to communicate with Cirque’s management team and fellow performers. Cirque provided Petitioner with an interpreter for every weekly artist meeting, all annual contract renewal meetings, as well as every annual performance evaluation meeting. No terms in Petitioner’s Artist Agreement required Cirque to obtain an interpreter for Petitioner’s use during Cirque functions. When Cirque met with Petitioner to execute his initial Artist Agreement, Cirque obtained the services of an interpreter to assist Petitioner. During this meeting, Cirque did not direct the interpreter to translate the full contract terms, word-for- word from English to ASL, for Petitioner. Neither did Petitioner ask the interpreter to interpret every word of his Artist Agreement. Although Cirque provided Petitioner a copy of the Artist Agreement, he did not have someone translate all the provisions of the document for him. Every year when Petitioner and Cirque met to renew Petitioner’s Artist Agreement, Cirque arranged for the presence of a certified ASL interpreter during the meeting. As with his initial contract, Cirque allowed Petitioner the opportunity to ask the interpreter questions about the terms of his renewed Artist Agreement. Petitioner never asked the interpreter to interpret every word of his contract. Petitioner signed every contract renewal letter. Cirque provided Petitioner copies of all renewal letters. Mr. Parisien, Cirque’s Senior Artistic Director, attended Petitioner’s last four contract renewal meetings. At each meeting, Mr. Parisien advised Petitioner that his contract was renewed for only one year. Mr. Parisien never communicated to Petitioner that he had a lifetime employment with La Nouba. Petitioner never complained to Mr. Parisien about the contract terms or renewal process. Neither did Petitioner ever express to Mr. Parisien that he was under the impression that he had a lifetime or permanent employment with La Nouba. La Nouba scheduled weekly artist meetings which were held every Tuesday. At these Tuesday meetings, Cirque relayed announcements or comments that pertained to the artists, La Nouba, or Cirque. At every Tuesday meeting, Cirque provided Petitioner with a certified ASL interpreter. Petitioner was free to ask questions or raise any concerns through the interpreter at these meetings. Although the Tuesday artist meetings typically lasted 15 minutes, Petitioner’s interpreters were hired for two-hour blocks of time. Following the meetings, the interpreters were available for Petitioner’s personal use to communicate with Cirque employees for the remainder of the two hours. On occasions, Petitioner took advantage of the interpreters to converse with Cirque management and fellow performers. Cirque also arranged and paid for interpreters to assist Petitioner in other matters including health insurance issues, as well as communications with other La Nouba performers, trainers, costumers, and Cirque employees. Cirque also provided Petitioner the use of interpreters for press events, rehearsals for a special show, a workshop, and several other important meetings including three to four annual company meetings. From 1998 through the end of his employment in 2014, no evidence indicates that Cirque ever denied any request from Petitioner for an interpreter’s assistance during a La Nouba event or an employee meeting. Cirque was not aware of any complaints from Petitioner that he could not effectively communicate with Cirque management or fellow performers. In addition to interpreter services, Cirque provided Petitioner with a cell phone/pager to communicate with Cirque employees. This device allowed Petitioner to communicate, via text, in a simple manner. Petitioner was the only artist Cirque provided with a cell phone/pager. In addition to the interpreters, several Cirque employees knew sign language. These individuals included Balto, Petitioner’s partner in his clown act, and David Wallace, a Cirque sound engineer. Cirque occasionally requested Balto or Mr. Wallace to help communicate with Petitioner. At the final hearing, Petitioner testified that Cirque did not provide him the benefit of an interpreter for every show related event or gathering. An interpreter was not present during show rehearsals. Without an interpreter, Petitioner felt that he had a very limited ability to communicate with the other performers or management. Petitioner felt that the lack of an interpreter hindered his creative process. In addition, Petitioner described one La Nouba affair during which Cirque did not provide him an interpreter. This event was La Nouba’s 15th anniversary party in December 2013. Mr. Wallace offered some assistance communicating the speeches to Petitioner based on his limited sign language. Petitioner, however, felt left out and was not able to fully participate in the party. Petitioner did not request Cirque provide him an interpreter for the party. The party was not a mandatory event for Cirque employees. Mr. Ross, as La Nouba’s Artistic Director, evaluated all artists’ performance, including Petitioner. From 2010 to 2013, Mr. Ross prepared an annual performance evaluation for Petitioner. Cirque’s Rules and Policies Manual, section 13, stated that performance evaluations were based on several elements including: 1) artistic quality of performance; 2) performance--acrobatic/musical/character; 3) attitude; and 4) health care. Mr. Ross personally presented Petitioner his annual performance evaluation. Each year, Mr. Ross and Petitioner reviewed Petitioner’s performance evaluation in the presence of a certified ASL interpreter and another witness. All evaluations were read to Petitioner (through the interpreter). Petitioner signed every evaluation. During these meetings, Petitioner had the opportunity to ask Mr. Ross questions or raise any other issues through the interpreter. Petitioner never asked the interpreter to read the performance evaluation line by line. Every year, Petitioner received overall positive ratings from Mr. Ross. For example, in Petitioner’s 2011 performance evaluation, Mr. Ross commented that Petitioner’s “clown is very charming and the audience is always touched by his performance.” In 2012, Mr. Ross commented that Petitioner “masters his art as a clown” and Petitioner is a “beautiful performer. . . . He is funny and touching.” In 2013, Mr. Ross commented that Petitioner’s “experience and talent are unquestionable.” According to Petitioner, Mr. Ross always had positive things to say about his clown act. Mr. Ross conveyed to Petitioner that he was a great asset to La Nouba and very pleasant to deal with. At the final hearing, Mr. Ross also expressed that Petitioner was a beautiful performer and an excellent and talented clown. However, over the course of his years supervising Petitioner’s act, Mr. Ross observed that Petitioner’s act had become routine. Petitioner was not taking risks or evolving his presentation. Mr. Ross noted in Petitioner’s performance evaluations that Petitioner’s “routine is almost too consistent. He could take more risks and explore further within the routines. As a result, there is very little evolution in [Petitioner’s] performance . . . consistency in the performance is such that it can feel too permanent sometimes. I would love to see [Petitioner] take more risks and let the present moment influence his performance more.” (August 2011) “Sometimes we would like to see [Petitioner] taking more risks and keeping the performance on the edge; this would help him not to fall into a routine. . . . No significant evolution.” (July 2012) Petitioner “sticks to the show material and very rarely explores new avenues. . . . He has to be careful not to let the routine diminish his performance level.” (July 2013) Cirque spends up to two years creating a show. Thereafter, to keep up with industry trends, look vibrant, maintain market share, and stay relevant, Cirque adjusts and evolves its shows over time. Changes include altering existing acts, integrating new acts, modifying the costumes, replacing acts and/or artists, transforming the music, and varying the choreography. Introducing new elements and updating shows provides Cirque another opportunity to advertise and market its shows to the public. This step increases the likelihood of repeat customers. Conversely, Cirque believes that if it does not evolve its shows, its sales are negatively impacted. Around 2012, Cirque shows began to experience a decline in sales. Consequently, Cirque’s owner, Guy Laliberte, directed that all Cirque shows be changed and upgraded. Mr. Laliberte wanted to increase the quality of the shows and keep them relevant. In the summer of 2013, Mr. Laliberte instructed Mr. Parisien to change La Nouba before the end of 2015. Cirque planned for significant changes to occur to La Nouba from 2013 through 2015. During this time, Disney also expressed a desire for Cirque to revamp La Nouba. La Nouba’s contract with Disney was scheduled to expire in December 2017. Mr. Laliberte desired the changes to La Nouba made before Cirque’s contract with Disney ended in order to extend the contract. In July 2013, Petitioner’s partner, Balto, announced that he was retiring from La Nouba. Balto’s retirement was unexpected. Balto asked Mr. Parisien if his last day could be April 19, 2014. Mr. Parisien agreed. Initially, Cirque was uncertain how Balto’s retirement would impact Petitioner’s position with La Nouba. Losing one half of the clown act would certainly affect Petitioner’s routine. Mr. Parisien was open to all possibilities as to how to handle the change. Because Petitioner was scheduled to renew his annual Artist Agreement for 2014 in January 2014, and Balto was not leaving until April 2014, Mr. Parisien decided that Cirque should renew Petitioner’s contract with La Nouba for the full year (from January through December 31, 2014). Mr. Parisien met with Petitioner in August 2013 to discuss renewing his Artist Agreement in light of Balto’s retirement. Mr. Parisien advised Petitioner that Cirque would agree to renew his contract for all of 2014. Petitioner’s renewal letter stated that renewal was under the same terms and conditions as his original Artist Agreement. Cirque obtained an interpreter who was present to assist Petitioner during this meeting. Despite renewing Petitioner’s Artist Agreement, Mr. Parisien advised Petitioner that the La Nouba clown act was going to change, but he had not yet determined how. Mr. Parisien recognized that Balto’s retirement provided La Nouba the opportunity to evolve the clown act in compliance with the mandate by Mr. Laliberte and Disney. Mr. Parisien considered three options as to how to change La Nouba’s clown act. First, Cirque could find Petitioner another partner. Second, Petitioner could continue as a solo clown act. Or, third, La Nouba could replace Petitioner and Balto’s clown act with two different clowns. Mr. Parisien discussed these three options with Mr. Ross, La Nouba’s Artistic Director. Mr. Ross had no preference and was open to all options. During the fall of 2013, Mr. Parisien and Mr. Ross met with Petitioner several times to discuss the various options for the clown act. Cirque obtained an interpreter’s services for each meeting. Mr. Parisien and Mr. Ross advised Petitioner that they had not decided on which direction to take the clown act. Petitioner acknowledged that Cirque was in the process of changing and upgrading La Nouba. However, Petitioner conveyed to Mr. Parisien and Mr. Ross that he did not want his clown act to change. Petitioner suggested that Cirque hire Maxim Fomitchev (“Max”), a clown performing on the Cirque show, Alegria. Although Petitioner had never worked with Max, Petitioner suggested that he and Max would continue to perform the same clown act that Petitioner originated with Balto. Mr. Parisien agreed to consider Petitioner’s recommendation. During these meetings, Mr. Parisien, and Mr. Ross occasionally spoke in French. (French is their first language.) However, no evidence shows that Mr. Parisien and Mr. Ross ever discussed Petitioner’s disability or age in French. In November 2013, Mr. Parisien contacted Mr. St. Croix to discuss the different options regarding La Nouba’s clown act. Mr. Parisien, as La Nouba’s Senior Artistic Director, was responsible for deciding how to adjust La Nouba’s concept and select acts that fit his artistic vision for La Nouba. Mr. Parisien, however, wanted Mr. St. Croix’s advice. Mr. St. Croix is the mastermind behind most of Cirque’s important shows. Mr. Parisien valued his opinion and artistic vision. Mr. St. Croix recommended that Mr. Parisien bring to La Nouba the clown act of “Pablo and Pablo” from Alegria. (Pablo and Pablo were two clowns whose first names were Pablo.) Alegria was closing in December 2013. The timing was advantageous for a move to La Nouba. Until his conversation with Mr. St. Croix, Mr. Parisien had not considered Pablo and Pablo as an option for La Nouba. Mr. Parisien was familiar with Pablo and Pablo and their clown act. He considered them to be great performers and artists. Mr. Parisien testified that Pablo and Pablo’s clown act was different from Petitioner and Balto’s clown act. Their clown personalities were also very different. Pablo and Pablo were high energy and colorful, while Petitioner and Balto were more deliberate and poetic. Pablo and Pablo’s comedy was more slapstick and physical. Described another way, Petitioner and Balto were like jazz, while Pablo and Pablo were more rock-and- roll. Pablo and Pablo’s act and personalities met Mr. Parisien’s artistic vision for changing the concept of La Nouba’s clown act. In addition, inserting Pablo and Pablo’s clown act into La Nouba was the most efficient business decision. Pablo and Pablo had been working together as a successful partnership for years. Cirque would avoid any delay that might result from having to develop a completely new clown act for Petitioner and a new partner. Mr. Parisien commented that it is difficult to establish a partnership in any act because the relationship depends on the performers’ chemistry, energy, and rhythm. It was more efficacious and safer for Cirque to use Pablo and Pablo rather than find Petitioner a new partner because Pablo and Pablo could just transfer their act from Alegria to La Nouba. Pablo and Pablo would also introduce new material to La Nouba. In November 2013, Mr. Parisien decided to bring Pablo and Pablo to La Nouba to replace Petitioner and Balto. Mr. Parisien felt that his decision met both Cirque’s artistic and business requirements. This decision would also effectuate Mr. Laliberte’s directive to change the concept of the clown act and bring new elements to La Nouba. Unfortunately, bringing Pablo and Pablo to replace Petitioner’s act meant that Mr. Parisien had to terminate or non-renew Petitioner’s contract. Mr. Parisien ultimately decided to terminate Petitioner’s contract on the same date Balto retired. Cirque notified Petitioner that it was terminating his Artist Agreement at a meeting held on January 21, 2014. Mr. Ross, Mr. Boyd (La Nouba’s Company Manager), as well as an interpreter were present with Petitioner during the meeting. Although it was Mr. Parisien’s decision to terminate Petitioner, Mr. Ross held the meeting because he was located in Orlando. At the meeting, Mr. Ross informed Petitioner that Cirque was terminating his contract as of April 19, 2014. April 19, 2014, was the same day Balto was retiring from the show. Mr. Ross explained to Petitioner that Cirque had decided to change the concept of the La Nouba clown act. Mr. Ross provided Petitioner with a termination letter. The letter stated that “in view of a change in the show concept,” Petitioner’s Artist Agreement was being “terminated as of April 19, 2014, by virtue of section 9.3.” Petitioner was further advised that Cirque would pay him a severance in the amount of $24,218.35. Petitioner was shocked by the Cirque’s decision to replace him. Although an interpreter translated the conversation, Petitioner felt lost at times during the meeting due to the rapid exchanges between Mr. Ross and Mr. Boyd. Petitioner did not believe that all communications were adequately interpreted. Mr. Parisien testified that neither Petitioner’s age nor disability had any bearing on his decision to terminate Petitioner. Rather, the decision was based solely on the fact that he was compelled to change and update La Nouba. The fact that Balto was retiring from La Nouba as Petitioner’s partner opened the door for La Nouba to replace their clown act. Prior to this meeting, Pablo and Pablo agreed to come to La Nouba. Pablo and Pablo are both younger than Petitioner. In addition, neither of them has a disability. Mr. Parisien testified convincingly that he did not hire Pablo and Pablo because they could hear or because they were both younger than Petitioner. During his employment with Cirque, Petitioner never complained to Cirque management that he felt discriminated against. Petitioner never complained about the availability of (or lack of) interpretation services Cirque offered. Petitioner never requested any accommodations beyond what Cirque already provided. Neither did Petitioner ever file an accommodation request with Cirque’s human resources department in accordance with the Cirque Rules and Policies Manual. On the contrary, during his August 2011 performance evaluation, Petitioner relayed that Cirque has “been providing communication through interpreters which is good . . . I love the show and want to stay here for a while.” Although Mr. Parisien made the decision to terminate Petitioner’s Artist Agreement, Petitioner alleged that Mr. Ross was the only person at Cirque that discriminated against him based on his disability and age. Petitioner continued to perform his clown act with Balto at La Nouba from January 2014 through April 19, 2014. Mr. Ross noticed that Petitioner’s performance actually improved after he was informed of his termination. On or about April 11, 2014, Cirque advised Petitioner that, in addition to the severance, Cirque would voluntarily pay him a transition premium of $15,000.00, as well as vacation and leave pay. In total, Petitioner received $53,627.76 after Cirque terminated his employment. Following Petitioner and Balto’s last show, Cirque held a celebration party and provided both artists with gifts. Cirque also invited all of the interpreters who had assisted Petitioner throughout the years to watch his last performance and attend the party. Although Cirque determined to replace Petitioner (and Balto) at La Nouba, before his last show Cirque discussed with Petitioner possible jobs at other Cirque productions. To be considered for another Cirque show, Petitioner would have had to update his casting profile with Cirque’s casting department. Petitioner met with Cirque’s casting department. However, he never provided the casting department with materials to update his profile in order to be considered for other jobs. Petitioner informed Cirque that he did not want to go to a different show. He was not interested in leaving Orlando or touring with another Cirque production. He desired a permanent position until he retired. Pablo and Pablo began performing their clown act at La Nouba immediately after Petitioner and Balto left the show in April 2014. Pablo and Pablo brought their acts from Alegria to La Nouba. Pablo and Pablo’s performance included five acts: 1) thieves, 2) motorcycle, 3) airplane, 4) door, and 5) piñata. These acts were different from the acts Petitioner and Balto performed. Although, both acts contain a horse bit, the acts Pablo and Pablo brought were newer and different from the act Petitioner performed at Alegria or La Nouba. Mr. Parisien believed that Pablo and Pablo successfully changed the concept of the clown act because their act, energy, and style were completely different from Petitioner and Balto’s. The new clown act also provided Cirque a new marketing angle to advertise the show and create publicity. Whether coincidental or not, after Pablo and Pablo arrived at La Nouba, ticket sales increased. Mr. Parisien’s decision to replace Petitioner and Balto’s clown act was not the only change he made to La Nouba. Other changes included replacing the juggler act with a rola-bola balancing act, the skipping act with a street dance act, and the high wire act with an aerial bamboo act. He changed the costumes of the bike act and the music for the flying trapeze act. In addition to Petitioner, Parisien terminated or did not renew approximately seven other artists. In total, approximately 30 to 40 percent of La Nouba changed in response to the Cirque and Disney mandate. To Mr. Parisien’s knowledge, none of the other artists terminated from La Nouba had a disability. Some of the artists terminated were younger than Petitioner. Since his employment with Cirque ended, Petitioner has not looked for any other artist jobs with either Cirque or Disney. Petitioner has not worked as a clown since he left La Nouba. Based on the competent substantial evidence presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that Cirque discriminated against him based on his age or his disability in violation of the Florida Civil Rights Act. Rather, Cirque’s decision to terminate Petitioner was based on its desire to change and update the concept of the La Nouba production.
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 Respondent, Cirque du Soleil, did not commit an unlawful employment practice as to Petitioner, Sergey P. Shashelev, and dismiss Petitioner’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 11th day of October, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 11th day of October, 2016.
The Issue Whether the respondent is guilty of the violations alleged in the Notice of Intent to Impose Administrative Fine, and, if so, the amount of the fine which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the administration of sections 501.012-.019, Florida Statutes, and is responsible for registering health studios. The Division of Consumer Services carries out this function. Mr. Beattie and his brother, Tim, are owners of the Paradise Gym, a health studio located at 1236 South Dixie Highway, Coral Gables, Florida. The gym has been in business since 1976 and in its present location for over six years. The Department contacted the Paradise Gym several times in 1992 regarding the statutory requirement that it register as a health studio. The gym continued to operate without being registered, however. In the spring of 1993, the Department obtained an injunction from the circuit court in Dade County, Florida, barring the gym from operating until it registered with the Department. On July 9, 1993, the Department conducted an on-site undercover investigation at the Paradise Gym and found that it was operating as a health studio in violation of the injunction. After the Department scheduled a contempt hearing, the Paradise Gym finally submitted a completed registration application. The gym was registered with the Department on December 6, 1993, and assigned registration number 02370. The annual registration for the Paradise Gym expired on December 6, 1994. The Department sent the Paradise Gym a registration packet enclosed with a letter dated October 24, 1994. The packet contained a registration form, and the letter contained instructions to send the completed form to the Department "together with a copy of the membership contract currently in use and the annual registration fee of $300." (Emphasis in original.) The Department did not receive a response to the October 24 letter. In a letter dated December 2, 1994, the Department notified the Paradise Gym that it must send the completed registration form and other documents within fifteen days of the date of the letter. The December 2 letter contained the warning that the gym must immediately cease "all non-exempt activities" until it came into compliance with the statutes governing health studios. The Department did not receive a response to the December 2 letter. On January 24, 1995, an employee of the Department telephoned Mr. Beattie and was told that the registration packet would be sent by January 27, 1995, and that the application had not been mailed sooner because the gym's offices had flooded and suffered serious damage. The Department did not hear from Mr. Beattie until February 20, 1995, when it received the Paradise Gym's Application for Registration; Affidavit of Exemption from the requirement that a bond, Certificate of Deposit, or letter of credit be posted; and check in the amount of $300 for the annual registration fee. These documents were signed by Mr. Beattie on February 6, 1995. The gym's membership contract was not included with the registration materials, and the Department sent a letter to the Paradise Gym dated February 21, 1995, stating that the Department could not process the application for registration until it received a copy of the contract. The Department received no response to the February 21 letter. In a letter dated March 21, 1995, the Department notified Mr. Beattie that the application for registration of the Paradise Gym was denied because the Department had not received a copy of the gym's membership contract. The letter contained a Notice of Rights and was sent via certified mail. The letter was received at the Paradise Gym, and the return receipt signed, on March 27, 1995. The Department did not receive a response to the letter, either in writing or by telephone, and the denial became final agency action 21 days after it was received at the gym. On May 5, 1995, an investigator for the Department conducted an on- site undercover inspection of the Paradise Gym. The inspection revealed that the gym was operating as a health studio and was offering memberships payable annually or by down payment and monthly installments. On June 13, 1995, the Department issued the Notice of Intent to Impose Administrative Fine at issue in this case and sent it to Mr. Beattie via certified mail. The notice included an offer to settle the matter upon payment of an administrative fine of $3500. The Department did not receive a response to the notice and did not receive a return receipt indicating that the notice had been delivered. In late July, 1995, Douglas Jennings, an employee of the Department, telephoned Mr. Beattie to inquire about his failure to respond to the notice. Mr. Beattie stated that he had not received it, and Mr. Jennings sent him a copy via certified mail. The notice was received at the Paradise Gym on August 3, 1995, and the Department granted the request for hearing dated August 21, 1995. On September 19, 1995, Mr. Jennings received a telephone call from Mr. Beattie in which he asked if the Department would drop the fine; on September 22, 1995, the Department received a copy of a document bearing the logo of the Paradise Gym and entitled "Waiver and Release from Liability and Indemnity Agreement." The contents of this document were substantially different from the contents of the document of the same title submitted in 1993 with the gym's initial application for registration, although the consumer disclosures required by statute remained the same. At hearing, Mr. Beattie explained his failure to submit the Paradise Gym's membership contract until September 22, 1995. He asserted on the one hand that there was no "membership contract" for the gym, just a waiver of liability, and on the other hand that the Department had a copy of the Waiver and Release from Liability and Indemnity Agreement he provided in 1993 with the gym's original application for registration. He did not explain why the Paradise Gym continued to operate after being notified in December 1994 that the gym could not continue operating until it had registered with the Department or why the gym continued to operate after March 21, 1995, when its application for registration was denied. The Department has proven by clear and convincing evidence that the Paradise Gym operated as a health studio without being registered with the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order finding that the Paradise Gym violated section 501.015(1) by operating without being registered with the Department and imposing an administrative fine in the amount of $100. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of April 1996. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April 1996.
The Issue Whether Respondent, a place of public accommodation, violated section 760.08, Florida Statutes, by denying Petitioner, a handicapped individual, access to its amusement park ride queues due to Petitioner’s use of an electric wheelchair.
Findings Of Fact Universal Studios is a public accommodation whose principal business activity consists of the ownership, operation, and management of entertainment parks, resorts, and related facilities located in the Orlando, Florida, area. Petitioner is a 33-year-old disabled male who uses an electric wheelchair for personal mobility.1/ On or about October 10, 2016, Petitioner filed a charge of discrimination and claimed therein that “Universal Studios did not allow [his] electric wheelchair to enter in line for attraction[s] or restaurant[s].” According to the patron attendance log maintained by Universal Studios, Petitioner was admitted to the theme park on July 9 and 11, 2016, and these are the only dates when Petitioner entered the theme park during the 12-month period preceding the filing of the charge of discrimination.2/ On the dates in question, Petitioner was denied access to the following attractions: Skull Island: Reign of Kong; E.T. Adventure; Jurassic Park River Adventure; and Dudley Do-Right’s Ripsaw Falls. According to Petitioner, “[i]n every single ride that I tried to enter, I was told power wheelchairs cannot be accommodated on the line because if they lose power, it could be a safety hazard.” In other words, Petitioner was not allowed to join the queues for the designated attractions. Furthermore, according to Petitioner, Respondent makes the attraction queue a part of the entertainment experience and he believes that he should have the full benefit of the experience. Petitioner was given the option of accessing each attraction by transferring to a park-provided manual wheelchair but he refused to do so because the manual chair, when equipped with his personal seat cushion, does not provide the necessary level of support and stability that he prefers. Furthermore, Petitioner testified that he is unable to tolerate sitting in the type of wheelchair offered him by Respondent because the chair has a soft, unsupported seat surface which, after a period of extended use (i.e., attraction queue wait times), causes him to experience physical pain. Petitioner does, however, own a manual wheelchair and there is no evidence that Petitioner’s disability prevents him from using a manual wheelchair under certain circumstances. For the convenience of its patrons, Respondent publishes a Rider’s Guide for Rider Safety and Guests with Disabilities (Rider’s Guide). The Rider’s Guide provides, in part, as follows: With the exception of the Hogwarts Express, none of the ride vehicles or attraction queues at Universal Orlando will accommodate Electric Convenience Vehicles (ECVs) or motorized wheelchairs. At those rides which can accommodate manual wheelchairs, guests may transfer from their . . . motorized wheelchair into a manual wheelchair that is provided at each location. If you cannot transfer to a manual wheelchair, please see an attendant. Respondent’s General Operating Procedure 8.3, Guests with Disabilities, provides that “[s]ome attractions are . . . completely wheelchair accessible, meaning the Guest would not have to transfer.”3/ Operating Procedure 8.3 also notes, however, that “[e]lectric wheelchairs and ECV’s cannot be accommodated on any ride vehicles at Universal Orlando.” Respondent’s Operating Procedure 8.3 and its Rider’s Guide, make clear that Respondent provides unrestricted access to its attraction queues for patrons operating manual wheelchairs, and offers no access to its attraction queues for patrons operating electric wheelchairs. The operating procedure and Rider’s Guide also demonstrate that Respondent considers electric wheelchairs and ECVs the same for purposes of barring access to its attraction queues. Marian Adams is senior manager of guest safety and American with Disabilities Act (ADA) compliance for Respondent. Ms. Adams testified that Respondent is concerned about the safety of all guests, and when considering the large number of guests that wait in attraction queues, and their close proximity to each other, Respondent decided to restrict the use of motorized wheelchairs and other electric convenience vehicles. Ms. Adams also testified that because of the close proximity of guests to one another in its attraction queues, “if for some reason the operator of [a] powered mobility device were to take a turn indirectly [sic] or travel the powered mobility device faster than the crowds are moving, then it causes a safety concern for not only the surrounding guests, but for the operator of the device.” Regarding the issue of attraction access, Ms. Adams testified that in instances where a guest refuses or is unable to transfer to a manual wheelchair, employees are instructed to contact “a team captain or a supervisor” who will meet with the guest, explain Respondent’s policy regarding powered mobility devices, and offer the guest an alternative accommodation of using the exit ramp to access the attraction. While it is true that the Rider’s Guide instructs patrons who cannot transfer to a manual wheelchair to “please see an attendant,” there is nothing in the Rider’s Guide which indicates that patrons who fit into this classification can access attractions by using an attraction’s exit ramp. Petitioner testified that Respondent’s employees never offered exit ramp access as an accommodation, but instead simply told him that he would not be able to use his electric wheelchair in the attraction queue. Petitioner’s testimony is consistent with Respondent’s policy of not allowing motorized/electric wheelchairs in attraction queues. The evidence, however, is inconclusive regarding whether Petitioner was offered the opportunity to speak with a team captain or supervisor regarding his issues of attraction queue access.
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 that Universal City Development Partners, d/b/a Universal Studios Orlando, subjected Javier A. Muniz-Pagan to unlawful discrimination in violation of the Florida Civil Rights Act of 1992 by refusing to allow him to use his power-driven wheelchair in attraction queues at its theme park; and Prohibiting any future acts of discrimination by Universal City Development Partners, d/b/a Universal Studios Orlando. DONE AND ENTERED this 6th day of October, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 6th day of October, 2017.
The Issue The issues in this case are whether Respondent violated Subsection 616.242(19)(a)1.b., Florida Statutes (2005),1 and, if so, what penalty should be imposed.
Findings Of Fact Royal Fun Time operates a permanent amusement park at Old Town Amusement Park (Old Town), in Kissimmee, Florida. Among the amusement rides housed at Old Town is a ride named "Tilt-a-Whirl." The ride consists of cup-like seats on round platforms that are located on a round base. As the base turns, the seats will also turn on the platforms. Once a person is seated on the ride, a lap bar is placed across the seat to prevent the rider from falling off the ride. On January 16, 2006, Jennifer Christian DeLorme (Ms. DeLorme) visited Old Town with her friends, Joseph and Lisa Ensminger (Mr. and Ms. Ensminger). On the day of their visit, Rick Gayhart was operating the Tilt-a-Whirl. The proper procedure for operating the Tilt-a-Whirl requires the operator to make sure that each patron is seated with the lap bar in place before starting the ride. Ms. DeLorme and Ms. Ensminger bought tickets to ride the Tilt-a-Whirl. Ms. Ensminger got into a seat and urged Ms. DeLorme to find a seat near her. Ms. DeLorme slowly walked around the ride, apparently trying to decide which seat to take. As Ms. DeLorme was attempting to get into a seat, the ride started and dragged her, causing injuries to her elbow, abdomen, and back. People started screaming to stop the ride, and Mr. Gayhart stopped the ride. According to Mr. Gayhart, there is a blind spot on the Tilt-a-Whirl which prevents the operator from observing all the seats when the operator is starting the ride at the control panel. He could not see whether Ms. DeLorme was in her seat because of the blind spot. The management of Royal Fun Time was aware that a blind spot existed, but did not take measures to eliminate the spot. Such measures could have been as simple as placing a mirror near the control panel. After Mr. Gayhart stopped the ride, Mr. Ensminger requested that the manager be notified of the incident. Mike Rivera, an employee of Royal Fun Time, was called and came to the scene a short time later. He talked to Ms. DeLorme and her mother, who insisted that her daughter be taken to a hospital for her injuries. An ambulance was called, and Ms. DeLorme was transported to a hospital. While waiting to be taken to a hospital, Ms. DeLorme did not continue to patronize other rides in the park as claimed by Royal Fun Time. However, Ms. Ensminger did ride amusement rides in the park, while waiting for the ambulance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Royal Fun Time, Inc., violated Subsection 616.242(19)(a)1.b., Florida Statutes, and imposing an administrative fine of $1,000. DONE AND ENTERED this 22nd day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 22nd day of August, 2006.
The Issue Whether the Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, is arbitrary and capricious and thus constitutes an invalid exercise of delegated authority?
Findings Of Fact The Petitioner, Hialeah, Inc., operates a race track (hereinafter referred to as the "Track") located in Dade County, Florida. The Petitioner is licensed by the Respondent. In December, 1981, the Petitioner was granted permission by letter from Bob Smith, then Director of the Respondent, the Department of Business Regulation, Division of Pari-Mutuel Wagering, to operate Tel-A-Betting. Robert Rosenburg, Director of the Respondent after Mr. Smith, also approved Tel-A- Betting in a letter to the Petitioner. The Petitioner has continuously operated Tel-A-Betting for more than six years. The Petitioner instituted Tel-A-Betting in reliance on the Respondent's approval of Tel-A-Betting. If approval had not been granted to the Petitioner from the Respondent, the Petitioner would not have established Tel-A-Betting. Tel-A-Betting is a procedure for placing wagers on races at the Petitioner's Track. Persons utilizing this system (hereinafter referred to as "Account Holders"), open an account with the Petitioner by making a deposit of $100.00 or more with the Petitioner and paying a $25.00 fee. The funds deposited with the Petitioner are received and accounted for in accounts maintained at the Track. Once an account is opened, a plastic card which contains, among other information, an account number and an "800," toll-free, telephone number is issued to the Account Holder. Wagers may then be placed with the Petitioner by the Account Holder calling the "800" number and placing a wager with a telephone operator/pari-mutuel clerk located at the Track. The Account Holder identifies himself or herself by giving the operator the account number and a code name designated by the Account Holder when the account is opened. The account number is programmed into a computer to determine whether the Account Holder has sufficient funds in the account to make the wager. If the funds in the account are sufficient to cover the wager, the wager is entered into the computer. If the Account Holder wins the wager, the payoff is entered into his or her account. Calls to place wagers through the Tel-A-Betting program can be made from anywhere in Florida and the person making the call and wager need not be physically present at the Track to make the wager. Wagers taken through Tel-A-Betting are only made on races at the Track. Tel-A-Betting allows the Petitioner to receive wagered funds as part of its pari-mutuel pool from persons located anywhere in the State of Florida. When a wager is made through Tel-A-Betting, the operator/pari-mutuel clerk cannot establish the age or identity of the person placing the wager. The Petitioner is the only race track permit holder in the State of Florida which employs Tel-A-Betting. The Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, if valid, will prohibit the Petitioner from continuing the use of Tel-A-Betting. The Respondent has not received any complaints about the use of Tel-A- Betting by minors or any other abuses. No evidence was presented that minors have made, or attempted to make, wagers through the use of Tel-A-Betting. The Respondent has not received any objections to Tel-A-Betting or complaints about unfair competition from other racetrack permit holders.
