The Issue Whether Respondent Best Western Plus, Oakland Park Inn (Respondent or Hotel) discriminated against Petitioner Sharon L. Garratt (Petitioner or Ms. Garratt) in a place or places of public accommodation because of her disability.
Findings Of Fact Petitioner has been wheelchair bound for over 30 years because of multiple sclerosis. On February 2, 2013, Petitioner’s husband, Mr. Mel Garratt, booked two hotel rooms at the Hotel for the night of November 16, 2013. Respondent owns and operates the Hotel. The rooms were booked through the online “Booking.com” website. The website is not affiliated with Best Western hotels. Rather, the Booking.com website is an independent booking agent for various hotel operators and hotel chains. Mr. Garratt requested that one of the rooms be wheelchair accessible. While the booking confirmation shows that one wheelchair-accessible room was requested, only standard rooms were booked by Mr. Garratt, not wheelchair-accessible rooms. Wheelchair-accessible rooms were not available at the time of the booking because Respondent had closed all five of its “handicap” rooms for renovation. At the time, the Hotel had taken initial steps to upgrade the rooms to meet applicable standards for handicap accessibility. Petitioner called the Hotel at the time of the booking and was advised by the Hotel clerk that there were no wheelchair-accessible rooms available because of renovations. According to Ms. Garratt, the clerk agreed that since the Garratt’s reservations were over nine months away, the renovations for wheelchair accessibility would probably be complete by the time of the Garratt’s anticipated November 16, 2013, arrival. There was no evidence presented, however, that Petitioner was ever guaranteed or promised that a wheelchair- accessible room would be available at the Hotel on the date of their reservations. In addition, although Petitioner alleged that Respondent advertised handicap-accessible rooms at the time the rooms were booked, Petitioner did not retain copies of those alleged ads and the evidence was otherwise insufficient to show that such advertisements were made by the Hotel. Neither Petitioner nor her husband made any attempt to contact the Hotel again regarding the availability of wheelchair-accessible rooms until their arrival on November 13, 2013. Upon their arrival, the Garratts were informed that a wheelchair-accessible room was not available. Personnel at the Hotel offered to cancel Petitioner’s reservation and made calls to surrounding hotels in an attempt to locate a wheelchair- accessible room. When no such room could be found, Petitioner decided to stay the night of November 13, 2013, in the previously reserved, standard room. That night, Petitioner fell in the standard room. By affidavit, Petitioner described her resulting injuries as “pain and bruising to [her] backside,” but offered no further evidence of complications or related medical expenses. The Hotel was built in the 1950s, prior to the enactment of the American with Disabilities Act (ADA). Evidence demonstrated that Respondent closed its rooms that had previously been designated as “handicap”-accessible rooms prior to Petitioner’s booking because they were not compliant with applicable ADA standards. In October 2011, the Hotel hired architect Troy Ammons to perform an ADA survey, who noted ADA deficiencies. Thereafter, on February 24, 2012, Mr. Ammons entered into a contract with the Hotel to prepare plans for renovating the Hotel’s five designated handicap-accessible rooms. Later, plans for renovating a sixth room were added. On January 28, 2013, the plans were submitted to the City of Fort Lauderdale, Building Department. Plan review comments were finalized by the City of Fort Lauderdale Building and Plumbing Departments on April 9, 2013, and building permits were issued for the work on April 26, 2013. On November 4, 2013, the Hotel entered into an ADA Consent Decree in the case of Access for the Disabled, Inc. and Denise Payne v. Oakland Park Inn, Case No. 13-60543 (U.S. Dist. Ct., S.D. Fla.). The Consent Decree approved by the United States District Court on November 6, 2013, obligated Respondent to make certain ADA improvements to the Hotel on or before August 1, 2014. Respondent elected to make more extensive ADA renovations to the hotel than required by the Consent Decree. The ADA renovations were delayed because the Hotel changed contractors and rebid the job. As a result of the delay, the building permits for the renovations expired prior to construction. On July 14, 2014, Respondent signed a new contract with Pemberton Building, Inc., a licensed general contractor, to complete the ADA work. The Hotel obtained extensions for completing the work, and the building permits were revived. Although Petitioner suggested that changes to accommodate her disability would be easy, the renovations required to make the Hotel rooms ADA compliant were extensive. They were not a matter of just putting in a handrail or widening a door opening. The six rooms at the Hotel undergoing renovations for ADA compliance were completely gutted. At the time of the hearing, the plumbing for the six rooms had been completed and the remaining work was proceeding. In sum, the evidence presented by Petitioner in this case was insufficient to show that Respondent discriminated against Petitioner based upon Petitioner’s handicap or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief, and denying Respondent’s request of an award of costs and attorney fees. DONE AND ENTERED this 6th day of January, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2015.
The Issue The issue in this case is whether Respondent discriminated against Petitioners on the basis of race or national origin at Respondent's place of public accommodation.
Findings Of Fact At issue in these consolidated cases are the complaints by Petitioners Mitchell and Beck that they were subjected to discrimination when they visited Respondent's Orlando restaurant on December 3, 2011. Petitioner Mitchell is an African-American male, and Petitioner Beck is an Asian female. They live in Tampa and have been dating for approximately five years. Prior to December 3, 2011, they had visited BB King's in Orlando several times--four or five times, according to Petitioner Mitchell. On each of those occasions, they had enjoyed the restaurant's services and were not subjected to any form of discrimination. BB King's is a southern-style barbecue restaurant and live music venue. Respondent operates four BB King's locations. The Orlando restaurant is the largest, occupying 14,000 square feet spread over two stories, with three bars, a stage, and a dance floor. The restaurants are named after the famous African- American blues musician, B.B. King. At the Orlando restaurant, B.B. King and other blues musicians (such as Ray Charles and Howlin' Wolf, both African-Americans) are portrayed in paintings and images on the exterior walls, and inside the restaurant on the stage, on the walls, on the menus, and on the glassware. BB King's has a racially diverse clientele. A large majority of Respondent's customers are African-Americans. Respondent has a non-discrimination policy, prohibiting discrimination on the basis of race, color, religion, sexual orientation, ethnicity, or other classification. All of Respondent's employees receive training on the company's non- discrimination policy, as part of the extensive initial-hire training process in the company's policies and procedures. The Orlando BB King's is at its busiest on Saturday nights, particularly between 7:00 p.m. and 10:00 p.m. During this time, there is usually a wait for a table. The waiting time ranges from five minutes to two hours. Respondent's seating policies and procedures were at the heart of the incident of which Petitioners complained. The seating policies and procedures in effect as of December 3, 2011, established through the credible testimony of Respondent's witnesses and corroborating exhibits, are described below. Respondent does not offer reservations in the traditional sense of reserving a table to accommodate a particular number of customers at a particular time. Instead, Respondent offers a variation of traditional reservations, called priority seating. Priority seating arrangements can be made in advance by telephone, online, or in person, for a particular group expecting to arrive at a particular time. While priority seating does not guarantee that a table will be ready when the group arrives, if an appropriate-sized table is not ready, the group is given first-in-line status, so they would receive the next available table of the size needed to accommodate the group, ahead of any walk-ins who are waiting for the same-sized table. Respondent limits the number of priority seating arrangements it will make for a given time slot. It is common, therefore, for priority seating slots to be filled in advance, particularly for the restaurant's peak days and peak times. When persons request tables for time slots with no more priority seating openings, those persons are told that they are welcome to come to the restaurant as walk-in customers. Through its seating policies and procedures, Respondent seeks to strictly control seating and to discourage customers from seating themselves. That is particularly important when the restaurant is very busy, for several reasons: to maintain order; to rotate the seating of customers among the different server zones so as to evenly spread the work load among the servers; to ensure that priority seating is provided to those who timely avail themselves of that option; and to maximize use of seating capacity when demand is at its peak. To help control seating, upon entering the Orlando BB King's restaurant, customers are informed by a sign at the reception station: "Please Wait To Be Seated." Another "Please Wait To Be Seated" sign tops a pole at the front of the velvet- roped area demarking the line for customers waiting to be seated. To reinforce the message of its "Please Wait To Be Seated" signs, Respondent places "Reserved" signs on each vacant table. Respondent's witnesses acknowledged that these tables are not actually reserved in the traditional sense of being held for a particular group with reservations, although tables may be held for priority seating, a term used interchangeably with reservations.2/ But the signs are not used for that purpose; instead, the signs are used as a means to discourage impatient customers from trying to seat themselves despite being told to wait to be seated. Another seating policy employed by Respondent is referred to as the 75 percent rule. Under this rule, unless and until 75 percent of a group wanting to sit together at one table is physically present at the restaurant, customers who are part of the group are not seated and are not even put on a waiting list nor provided a pager for a table. In other words, if two customers tell the hostess that they are a part of a group of four and are waiting for two other persons to arrive, those two customers will not be seated at a table for four, nor will they be put on the wait listing and given a pager for a table for four. Respondent's witnesses credibly explained that this rule served the purpose of maximizing use of available seating capacity, which is particularly important on busy nights during peak hours. The night in question--December 3, 2011--was a Saturday night during tourist season. Petitioners decided to drive from Tampa to Orlando, a prime tourist destination location, to return to the BB King's restaurant they had previously enjoyed. Petitioners did not make seating arrangements in advance. Instead, on the way to the restaurant, Petitioner Beck called BB King's on her cell phone to try to make reservations, between one and two hours before Petitioners expected to arrive. Petitioner Beck spoke with "Robbie," who told her that she could not make a reservation, but that they were welcome to walk in. Respondent's witnesses credibly explained that by the time Petitioners attempted to make seating arrangements, the priority seating limits surely would have been reached. Thus, it was reasonable and consistent with Respondent's seating policies for Petitioner Beck to be told that she could not make a reservation, but that they were welcome to walk in. Petitioner Beck acknowledged that the person with whom she spoke did not know the race or national origin of either Petitioner. Petitioners proceeded on to BB King's, arriving between 8:00 p.m. and 9:00 p.m. The restaurant was very busy. In addition to the normal crowds at this peak time, the restaurant was hosting three special events for Nike: one Nike event was for a group of 50 people, between 6:30 p.m. and 9:00 p.m.; the second Nike event was for a group of 41 people, between 7:00 p.m. and 9:00 p.m.; and the third Nike event was for another group of 50 people, between 7:30 p.m. and 10:30 p.m. Petitioners checked in with the hostess at the front reception station. Petitioners were greeted in a friendly manner by the hostess and were given a pager that would signal when their table was ready. Within five to ten minutes, the pager signal was activated. Petitioners returned the pager to the hostess, who turned Petitioners over to a runner, the BB King's employee who escorts guests from the reception area to their tables and provides them with menus and silverware. The runner led Petitioners to a table for two. However, Petitioners refused the two-seater table offered to them, and informed the runner that they needed a table for four, as they were waiting for another couple who had not arrived yet.3/ Petitioners must have told the hostess that they were a party of two, not four, when they first checked in, so as to be put on the waiting list and given a pager for a two-seater table. Petitioners failed to explain why they did not inform the hostess upon checking in that they were waiting for two more persons and needed a table for four, instead of waiting until they saw the table to which they were led to tell the runner that they actually needed a table for four. The logical inference from Petitioners' description (and from Petitioner Beck's evasiveness described in endnote 3) is that Petitioners developed the story that they were expecting another couple after they were led to the table for two, perhaps because they were not happy with the location of the two-seater table and preferred the location of the four-seater tables, or perhaps because they just wanted more elbow room. The credibility of Petitioners' story is undermined by the following facts: Petitioner Mitchell admitted that there was no set time established to meet this other couple at the restaurant; the other couple that was supposed to meet Petitioners never showed up during the hour that Petitioners estimated they were at the restaurant in total; Petitioners did not offer testimony by the other couple to corroborate their story; and Petitioners did not even name the other couple when asked in discovery for names of persons with knowledge of the facts underlying Petitioners' complaints. Ironically, the new information that Petitioners were waiting for another couple, belatedly offered to the runner in an attempt to switch to a four-seater table, triggered the 75 percent rule, which ultimately was the source of Petitioners' dissatisfaction. The credible evidence establishes that if Petitioners had accepted the two-seater table they were offered, they would have been served, as they had been on prior occasions. Instead, pursuant to the 75 percent rule, Petitioners were escorted by the runner back to the reception area, and were told to let the hostess know when the couple they were waiting for had arrived. Petitioners asked to be put on the waiting list and be issued a pager for a table for four, but the hostess followed the 75 percent rule and reasonably refused to do so. No evidence was offered to prove that the 75 percent rule was used as a means to discriminate against Petitioners because of their race or national origin. Petitioners offered no evidence to prove that any other customers who did not have 75 percent of their group present were seated at tables, or were put on the waiting list and issued pagers. Petitioners offered no evidence to prove that the 75 percent rule was not applied uniformly to all other customers regardless of their race or national origin. Petitioners offered no evidence that the 75 percent rule was waived for any customers who were not members of Petitioners' protected race or national origin classes. After Petitioners were returned to the reception area and told to let the hostess know when the rest of their party arrived, Petitioners went to the bar area to wait. Petitioner Beck ordered a drink, and was served without incident. Petitioners observed an African-American couple seated at a nearby table for four. When the African-American couple was finishing their meal and about to vacate their table, they asked Petitioners if they wanted to be seated at the table, and Petitioners gladly took them up on their offer. The African-American couple who offered Petitioners their table left and Petitioners remained seated at the table for four. Petitioners did not have menus or silverware, because they were not seated by a runner. A server approached the table, but did not stop to take Petitioners' orders. The server seemed upset according to Petitioners, perhaps because they had seated themselves, contrary to Respondent's seating policies and procedures. Then a different server came to the table. According to Petitioners, that server took their orders for drinks and dinner, and brought them drinks. Petitioners believe that the first server must have reported them to the hostess, because the same hostess who had told Petitioners previously to wait until the rest of their group arrived came over to tell Petitioners that they needed to get up from the table. Someone who Petitioners described as a manager also came up to tell Petitioners that they needed to vacate the table because the rest of their group had not arrived. At hearing, Petitioners testified that they did not know the name of the manager with whom they spoke. Petitioners claim that they told the unidentified manager that they should not have to leave the four-seater table, pointing out that there was a Caucasian couple seated at a four- seater table. According to Petitioners, the manager told them he did not have the heart to ask the other couple to move. Petitioner Beck testified that the manager made this comment while Petitioners were waiting in the bar area before seating themselves. Petitioner Mitchell, on the other hand, claimed that this conversation occurred after the manager asked them to get up from the four-person table. Petitioners' testimony in this regard was not credible. When Petitioners were asked to vacate the table from which they had seated themselves, after arguing for a brief period, Petitioners ultimately agreed to vacate the table. They then decided to leave the restaurant. Apparently they were allowed to leave without paying for the drinks they had ordered and been served while seated at the table for four, and apparently they abandoned the dinner orders they had placed. It was clear from Petitioners' testimony that they did not understand Respondent's seating policies. Petitioners seemed to be under the misimpression that Respondent had a policy against seating couples at tables for four. Instead, according to the credible testimony of Respondent's witnesses, couples are often seated at tables for four early in the evening, but that as the evening progresses into the peak hours, the hostess begins to direct couples to two-seater tables, using the four-seater tables for groups of three or four. This maximizes use of the available seating, a reasonable and necessary policy for a busy restaurant/entertainment venue. The testimony of Respondent's witnesses was consistent in this regard, and included the credible testimony of Ms. Olivo, who was the hostess on December 3, 2011, but who has not worked for Respondent since 2012. The credible evidence established that Petitioners were asked to vacate the table for four, not because there were only two of them, but rather, because their story that they were waiting for another couple triggered the 75 percent rule, and because, after they were told to wait until the rest of their group arrived, they chose to ignore those instructions and seat themselves. Petitioners failed to prove that Respondent's practice of sometimes seating couples at tables for four and sometimes directing couples to tables for two was a choice made on the basis of race or national origin, as opposed to a reasonable judgment for maximizing use of seating capacity based on how busy the restaurant is. Petitioners acknowledged that the Caucasian couple they claim to have pointed out to the manager was not the only couple they observed seated at a table for four. To the contrary, Petitioners admit that the couple who made the nice gesture that, unfortunately, was contrary to Respondent's seating policies, of offering Petitioners "their" table as they were getting up to leave was an African-American couple. Petitioners offered no evidence to prove how long either the Caucasian couple or the African-American couple seated at tables for four had been at the restaurant, whether they were seated with all of their party present, whether they were waiting for others to join them, or whether they had improperly seated themselves. These couples might have arrived hours earlier, well before the peak time, and lingered to enjoy their food and the live entertainment. That Petitioners admitted to having observed both a Caucasian couple and an African-American couple at tables for four is evidence that Respondent was not using its seating policies as a means to discriminate, but rather, applied its policies in a non-discriminatory manner to accommodate customers both within and outside the protected classes who were not shown to be similarly situated to Petitioners. In fact, Petitioners admitted that when the two of them previously visited Respondent's Orlando restaurant, they had been seated at tables for four. Petitioners also contend that the unidentified manager who asked them to vacate the table informed them that the table was "reserved" for a group of three Caucasian customers who had priority seating arrangements. According to Petitioners, this threesome arrived at the restaurant after Petitioners. Petitioners do not contend that the three Caucasian customers did not have 75 percent of their group present; mathematically, the threesome being seated at a table for four must have had at least 75 percent of their group present. Moreover, Petitioners offered no evidence that the three customers did not have priority seating arrangements. Accordingly, Petitioners' description does not support Petitioners' assertion of discrimination, but rather, a consistent application of Respondent's seating policies and procedures. Petitioners were not entitled to be seated or to be placed on a waiting list for a table for four, because their claim to be waiting for another couple triggered the 75 percent rule; Petitioners ignored the instructions to wait for the rest of their group, and violated another seating policy by seating themselves. Petitioners did not attempt to make seating arrangements in time to secure priority seating, as the Caucasian threesome apparently had done. Thus, the Caucasian threesome was entitled to priority seating over walk-in customers on the waiting list for a four-seater table. Petitioners had not yet qualified to be placed on the walk-in waiting list. Consistent with Respondent's seating policies, Petitioners were properly asked to vacate the table at which they had seated themselves. As with the 75 percent rule, no credible evidence was offered to prove or suggest that the do-not-seat-yourself rule, announced to all customers by the sign at the reception station, was applied in a discriminatory fashion. Respondent's witnesses credibly testified that it is common for customers to try to skirt the seating policies by seating themselves when a table is vacated, particularly on a busy Saturday night, such as on December 3, 2011. Management and staff are all on alert to look for tell-tale signs, such as customers sitting at a table without menus or silverware. When this occurs, the hostess or a manager will inform these customers that they cannot seat themselves, and they are asked to leave the table. The credible testimony established that customers of all races and national origins are asked to leave tables when they violate the seating policies by seating themselves. Petitioners also argue that the use of the word "reserved" on signs placed on tables is inconsistent with Respondent's seating policy that does not allow tables to be reserved in the traditional sense. However, Respondent reasonably explained its seating policies and procedures, including its use of the "reserved" signs. Whether Respondent's seating policies are clear or confusing, good or bad, or make sense to Petitioners are not questions for determination in this proceeding. Instead, the question is whether Respondent's actions taken pursuant to its seating policies and procedures were motivated by intentional discrimination. Petitioners did not prove that Respondent used "reserved" signs as a means to discriminate against Petitioners because of their race or national origin. Petitioners do not contend that they were subjected to any form of direct discrimination, such as racial or ethnic slurs or derogatory comments of any kind. Instead, Petitioners Mitchell and Beck proved only that they are African-American and Asian, respectively; that they could have enjoyed all of the benefits offered at BB King's had they accepted the table for two they were offered; that they were not seated at a table for four because they claimed to be waiting for another couple to join them; and that they were asked to leave a table at which they had seated themselves. No credible proof was offered from which to infer that Respondent's actions were motivated by intentional discrimination based on race and national origin. For reasons explained in a series of motions and Orders (see endnote 1), the undersigned exercised the authority provided in section 120.569(2)(f), Florida Statutes (2012), and Florida Rule of Civil Procedure 1.380(b)(2), to assess costs against each Petitioner in connection with sanctions imposed for their discovery violations. By Order issued July 11, 2013, Petitioner Mitchell was ordered to pay $1,067.50 to Respondent to reimburse a portion of the reasonable attorney's fees incurred in attempting to obtain discovery and enforce orders compelling discovery. By separate Order issued July 11, 2013, Petitioner Beck was ordered to pay $1,098.00 to Respondent to reimburse a portion of the reasonable attorney's fees incurred in attempting to obtain discovery and enforce orders compelling discovery. As of the final hearing, these assessments had not been paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: In DOAH Case No. 12-3992, that the Florida Commission on Human Relations enter a Final Order: dismissing the Petition for Relief filed by Petitioner Freddie Mitchell; and assessing $1,067.50 against Petitioner Mitchell for discovery violations, to be paid to Respondent, pursuant to the Order entered on July 11, 2013; and In DOAH Case No. 13-517, that the Florida Commission on Human Relations enter a Final Order: dismissing the Petition for Relief filed by Petitioner Genevieve Abad Beck; and assessing $1,098.00 against Petitioner Beck for discovery violations, to be paid to Respondent, pursuant to the Order entered on July 11, 2013. DONE AND ENTERED this 14th day of May, 2014, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 14th day of May, 2014.
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
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, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 28th day of May, 2014.
The Issue Whether Respondent discriminated against Petitioners on the basis of their race in violation of Chapter 760, Florida Statutes (2006).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Respondent, "Travelodge," is a Florida corporation: Canterbury Oak, Inc., d/b/a Travelodge. It is a public lodging establishment. Petitioners, Louis and Constance Taylor, are an African-American husband and wife and are members of a protected class. In the early afternoon, Sunday, July 16, 2007, Petitioners and their children arrived in Clearwater Beach and attempted to register and obtain a room at the Travelodge for two nights. They did not have reservations. On that particular weekend, there was a youth soccer tournament in Clearwater Beach, and the Travelodge had all rooms occupied on Saturday, July 15, 2007, with 44 of the 54 rooms being vacated the morning of July 16, 2007. Typical check-out time is 11:00 a.m.; extra housekeeping staff had been hired to prepare the rooms for Sunday occupancy. The fact that Sunday morning "check-outs" were largely youth soccer participants made the room clean-up and preparation particularly time consuming. Guests, without reservations, arriving in the early afternoon were told that no rooms would be available until after 3:00 p.m. Petitioner Louis Taylor, who actually entered the Travelodge lobby and requested accommodations (Petitioner Constance Taylor remained in the car with their children), testified that the desk clerk (Craig Harmul) was on the telephone when Petitioner asked if a room was available for two nights. Petitioner testified that the desk clerk said "no." Petitioner Louis Taylor decided not to "push the issue" and returned to the car. Petitioners then checked into another local motel. Petitioners had stayed at the Travelodge on several previous occasions; it was their favorite motel in Clearwater Beach, and they and their children were disappointed. Petitioner Constance Taylor then called the "1-800 national reservations service" for Travelodge and was advised that rooms were available. Later that day she called Kathy Mittler, Respondent's general manager, and suggested that they had been denied accommodations because of their race. Ms. Mittler explained that everyone was told that they would have to wait until 3:00 p.m., and advised that rooms were available and that Petitioners could come and get a room.
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 dismissing both Petitions for Relief. DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 15th day of November, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Martin R. Cole Travelodge 401 Gulfview Boulevard Clearwater Beach, Florida 33767 Louis Taylor 5368 Aeolus Way Orlando, Florida 32808 Constance Taylor 5368 Aeolus Way Orlando, Florida 32808
The Issue The issue is whether Respondent, Publix Super Markets, Inc. (“Publix”), violated section 760.08, Florida Statutes (2014),1/ by discriminating against Petitioner based on his race, color, sex, and/or handicap.
Findings Of Fact Petitioner is a black male who lives in Deltona, Florida. Despite the assertion in his Public Accommodation Complaint of Discrimination, Petitioner offered no evidence that he has a disability or handicap. Petitioner testified that he had surgery for kidney stones in Daytona Beach on October 20, 2014. Respondent’s urologist prescribed Percocet (oxycodone and acetaminophen), a controlled substance, to control Respondent’s pain. The prescription from Petitioner’s urologist was not placed in evidence. On October 21, 2014, Petitioner went to the emergency room at Fish Memorial Hospital in Orange City and, there, was given a prescription for 12 tablets of Percocet. The prescription directed that the medication be taken once every six hours, meaning that the emergency room physician was prescribing a three-day supply of Percocet. A copy of this prescription was entered into evidence, and the parties agree that this is the prescription that Petitioner later presented to the Publix pharmacy. Petitioner testified that his mother drove him to his surgery and, apparently, to the emergency room. She placed the prescription in her purse for safe keeping. A few days later, when Petitioner wanted to get the prescription filled, his mother could not find the prescription. Petitioner stated that his mother forgot that she had changed purses. When she changed purses again a couple of weeks later, Petitioner’s mother found the prescription. On November 15, 2014, Petitioner presented the emergency room prescription to the pharmacy technician at Publix Store 0667 in Deltona. The technician was aware that the pharmacist gave special scrutiny to emergency room prescriptions. The technician therefore took the prescription directly to the pharmacist, James MacDonald. Mr. MacDonald was the pharmacy manager of Store 0667 and at the time of the events at issue had been a pharmacist for 23 years with no record of discipline against his license. Mr. MacDonald testified that, as a general matter, he performs a prospective drug utilization review on every prescription. Simply put, this process insures that the prescription is for a legitimate medical purpose and that it is being filled for the person who presented it at the pharmacy. Mr. MacDonald stated that he is not required to fill every prescription that is presented to him and that he declines to fill prescriptions seven to ten times per week. The chief reasons for declining to fill prescriptions are the pharmacist’s inability to verify the prescription with the prescribing physician and the pharmacist’s determination that the prescription calls for a type or quantity of a controlled substance that is inappropriate to the patient’s condition. Mr. MacDonald testified that during the two years prior to November 2014, nearby pharmacies at CVS and Walgreens had stopped filling prescriptions for controlled substances, which placed an added burden on Publix to fill these prescriptions. There were several doctors in the area writing prescriptions for large amounts of controlled substances. Mr. MacDonald was also being presented with many prescriptions for controlled substances from people he did not know. All these factors contributed to his caution in filling prescriptions for controlled substances. Mr. MacDonald testified that a prescription from an emergency room visit usually provides for enough medication to get the patient through the emergency period, two or three days, after which the patient is instructed to see his primary care physician. Mr. MacDonald tended to decline to fill emergency room prescriptions that were presented more than a few days after the emergency room visit. When the technician presented him with Petitioner’s prescription, Mr. MacDonald told the technician that he would not fill it because it was more than three weeks old. The technician walked to the front window to convey this response to Petitioner, who did not take it well. Mr. MacDonald could hear Petitioner raising his voice and so went to the front to speak with Petitioner directly. Mr. MacDonald testified that the pharmacy was very busy, that he had customers ahead of Petitioner, and that having to come around and deal personally with Petitioner was putting him even farther behind in his work. Mr. MacDonald explained to Petitioner that the prescription was issued by an emergency room physician and was for a three-day supply of Percocet. He told Petitioner that he would have filled the prescription if he had presented it within a week of his emergency room visit, but that it was now three weeks later and this was clearly no longer an emergency situation. Petitioner testified that he told Mr. MacDonald that the prescription had been misplaced in his mother’s purse. Mr. MacDonald did not recall this explanation. Mr. MacDonald offered to call the emergency room physician and verify the prescription. Petitioner insisted that Mr. MacDonald either call the physician or fill the prescription immediately, and stated that he would not move from the pharmacy window until Mr. MacDonald had complied with his ultimatum. Mr. MacDonald stated that he had customers ahead of Petitioner and could not drop everything to please him at that moment. In light of Petitioner’s persistence, Mr. MacDonald reiterated his refusal to fill the prescription. He handed the prescription back to Petitioner and threatened to call the police if Petitioner did not leave. Petitioner was unmoved. Mr. MacDonald did not call the police but did page the assistant store manager, Christopher Bloyen, to intercede in the situation. Mr. Bloyen testified that he came to the pharmacy. He saw that Petitioner seemed very upset and was speaking very loudly. Petitioner complained that Mr. MacDonald would not fill his prescription. Mr. Bloyen spoke briefly with Mr. MacDonald, who explained why he was refusing to fill the prescription. At the hearing, Mr. Bloyen explained that the pharmacy in any Publix store is an autonomous department and that, as a store manager, he lacks the training or expertise to second- guess the decision of his pharmacist. Publix relies on the professional expertise and discretion of its pharmacists to determine whether or not to fill a prescription. Mr. Bloyen informed Petitioner that he was going to support the decision of Mr. MacDonald not to fill the prescription. At this point, Petitioner left the store. Neither Mr. MacDonald nor Mr. Bloyen had met Petitioner before this incident. Petitioner did not disclose to them that he had any disability or handicap, and none was visibly apparent. Mr. MacDonald testified that his decision not to fill Petitioner’s prescription was not based on Petitioner’s race, color, or sex. In fact, Mr. MacDonald’s initial decision not to fill the prescription was made and announced to the technician before Mr. MacDonald laid eyes on Petitioner. Petitioner’s race, color, sex, and alleged handicap or disability played no part in Mr. MacDonald’s decision not to fill the prescription. Mr. MacDonald did not make any disparaging remarks about Petitioner during their exchange, and no employee of Publix made racially derogatory or racially related comments to Petitioner. Petitioner testified that he was able to get the prescription filled at a Winn-Dixie pharmacy shortly after this incident. Therefore, Petitioner suffered no economic loss or quantifiable damages as a result of Publix’s refusal to fill his prescription. Petitioner testified that he seeks only an apology from Publix. Publix Store 0667 does not contain a restaurant or lunch counter and there is no designated area for customers to consume food on the premises. The store does contain a deli, but the food items sold from the deli are not intended for on- site consumption at Publix. The store has no picnic tables or other seating at which customers might consume food on the premises. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Publix for refusing to fill his prescription. Petitioner offered no credible evidence that the stated reasons for not filling the prescription were a pretext for discrimination based on Petitioner’s race, color, sex, handicap, or disability. Petitioner offered no credible evidence that Publix discriminated against him in violation of section 760.08.
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 Publix Super Markets, Inc., is not a public accommodation under the facts of this case or, in the alternative, that Publix Super Markets, Inc., did not commit any unlawful acts of public accommodation discrimination and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 2nd day of February, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2016.
The Issue Whether Petitioner has been the subject of discrimination in a public accommodation due to a disability.
Findings Of Fact Petitioner, Cari Anderson, is a veteran of the Iraq War and has Post Traumatic Stress Disorder (PTSD). Her PTSD is sufficiently severe so as to constitute a disability under Florida law. Because of her disability, Petitioner keeps with her two small poodle-type service dogs that help her remain calm. Petitioner also trains such service dogs. On April 5, 2009, Petitioner was visiting her friend, Michelle Clas-Williams, at her home in Panama City, Florida. During her visit at around 2:00 in the morning, Petitioner, along with her friend, and her friend’s daughter, decided to go shopping at the Wal-Mart store in Callaway, Florida. Petitioner brought along her two service animals to the Callaway Wal-Mart. Neither of the dogs wore any identification as service dogs; and therefore, could not be readily identified as such. Upon arrival, Petitioner and her friend obtained separate shopping carts. Petitioner placed her two dogs on the bottom of the shopping cart, on a towel. Petitioner and her shopping companions entered the main part of the store. No one from Wal-Mart stopped Petitioner from entering the store. Both she and her friend spent the next 20- 30 minutes shopping throughout the Callaway Wal-Mart store where surveillance cameras intermittently monitored their passage through the store. None of the surveillance footage has sound. As a consequence, the surveillance footage of Petitioner’s visit does not add support for either party’s version of the events in this case. During her time in the store, Petitioner walked freely throughout the aisles and was not prevented from shopping at the Callaway store. On at least two separate occasions, individual employees politely informed Petitioner that she could not have her dogs in the store. However, on each such occasion Petitioner explained to the employee that her dogs were service animals. The employees responded positively and Petitioner continued her shopping. There was no evidence that these employees communicated with Wal-Mart management. As Petitioner and her friend approached the checkout lines, the Customer Service Manager, Monica Amis, noticed Petitioner’s two dogs in her shopping cart. Ms. Amis walked up to Petitioner and said, “Ma’am those dogs cannot be in the store.” Before Ms. Amis could ask anything else, including whether the dogs were service animals, Petitioner erupted into a loud vocal tirade stating among other things, “You don’t tell me what the fuck to do. I can do what I want. I’m sick of Wal- Mart’s shit you think you own the world.” Ms. Amis could not get a word in and could not calm Petitioner down. Petitioner demanded the store manager be called and demanded that some papers which “proved” her dogs were service animals be looked at. Within minutes of first approaching Petitioner, Ms. Amis instructed the cashier to process Petitioner’s purchases. She then walked away and called the store manager. The better evidence did not demonstrate that Ms. Amis was rude or profane with Petitioner. The evidence did demonstrate that Ms. Amis’ actions in approaching and interacting with Petitioner were clearly reasonable and did not constitute discrimination against Petitioner. Shortly after Ms. Amis’ call, the store manager, Gary Wright, approached the front of the store. He could hear Petitioner yelling. He was very concerned about her behavior and the disturbance she was making. He approached her at the cash register. Mr. Wright asked Petitioner to calm down so he could speak with her. As she was paying for her items, Petitioner continued to yell loudly and use profanity. She was permitted to complete her transaction and no one from Wal-Mart interfered with her ability to do so. However, Petitioner remained belligerent, loud, and profane. Petitioner believed that her rights were being violated and that Ms. Amis and the manager could not tell her that her dogs could not accompany her in the store and if they inquired about them, they could only ask one specific question about whether her dogs were service dogs under an alleged agreement Wal-Mart recently entered into with the federal government. Petitioner’s beliefs about the meaning and scope of this alleged agreement, which was not introduced into evidence, is simply misplaced and does not establish any of the actions by either Ms. Amis or Mr. Wright as discriminatory acts. Like Ms. Amis, Mr. Wright could not get a word in. He understandably became exasperated with Petitioner and the conversation devolved with Mr. Wright telling Petitioner on at least two occasions to “shut up” and “shut the fuck up.” He also told her that he did not think poodles were service animals, but old-lady dogs. In the meantime, Petitioner was yelling about her papers and that Mr. Wright needed to look at them. Mr. Wright simply wanted Petitioner to leave the store. He also told her that he had no problems with the service dogs being in the store, but if she did not calm down, he would have to call the Bay County Sherriff’s office. Given Petitioner’s loud and irrational behavior it was reasonable for Mr. Wright to ask Petitioner to leave the store. When Mr. Wright informed Petitioner that he was calling the Sheriff’s office, Petitioner stated that she was glad they were coming. She wanted their assistance. Mr. Wright walked away and called the Sheriff’s office. There was no evidence that Mr. Wright made a false report to the Sheriff’s office. Additionally, Petitioner called 911 to confirm that an officer was en-route. Likewise, given Petitioner’s continued behavior and her assent to the call, it was reasonable for Mr. Wright to call the Sheriff’s office. Notably, the entire interaction between Petitioner, Ms. Amis, and Mr. Wright took less than 10 minutes. After completing her purchase, Petitioner remained at the checkout lane while her friend, who was in another checkout lane, paid for her merchandise. Petitioner continued yelling, using profanity, and causing a disturbance. Then Deputy, now Investigator, VanStrander arrived outside of Wal-Mart’s east entrance doors and was met by Mr. Wright. Mr. Wright informed Investigator VanStrander that Petitioner was making a scene and being very loud and disruptive. Indeed, Investigator VanStrander could hear Petitioner yelling while he was outside the store and she was inside the store. Mr. Wright did not ask the officer to arrest Petitioner. Once both Petitioner and her friend had completed their purchases, they began walking toward the exit, with Petitioner continuing to yell. Investigator VanStrander entered the store and was immediately approached by Petitioner who was screaming and “cussing like a sailor.” Investigator VanStrander instructed Petitioner that she needed to leave the store. He also informed her that she would be arrested if she did not comply. Petitioner did not immediately follow his instructions. Instead she attempted to argue her position and show the officer her papers. He again instructed her to leave and motioned to the door. He did not block the doorway as Petitioner claimed that he did. She again did not immediately comply and within seconds the officer arrested Petitioner. With little to no struggle she was handcuffed, placed into custody, and charged with disorderly conduct and resisting an officer without violence. Petitioner’s interaction with the deputy while in the store lasted less than 5 minutes. Importantly, the evidence clearly demonstrated that the decision to arrest Petitioner was made by Investigator VanStrander. Respondent was not responsible for the actions of the officer or for Petitioner's behavior which led to her arrest. Given these facts, the Petition for Relief should be dismissed.
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 dismissing Petitioner’s Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of November, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 1st day of November, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amy Harrison Turci, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cari Anderson Post Office Box 371792 Las Vegas, Nevada 89137 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to by the parties, the following relevant facts are found: Prior to her employment with the respondent, petitioner had work experience in waitressing, bookkeeping, operating a wine and beer bar and operating a grocery store. At all times relevant to this proceeding, petitioner was married and had three children. Respondent Jax Liquors, Inc. (Jax) owns and operates a retail liquor business which is' divided into package store operations and lounge operations. Though its lounges are generally located adjacent to a package store, each is a separate entity having its' own management structure. There are 35 package stores employing 198 males and 199 females, and 11 lounges with 135 employees, 87 percent of which are female. While sales figures for the package stores range from $1.5 to $4 million per year, the lounges' sales figures are approximately $50,000 per year. Because of the greater volume of inventory, customers, employees and paper work, promotion of employees to the management level in the package stores takes a longer period of time. Employees in the lounges can move up from the position of cocktail waitress to assistant manager or manager in a short period of time because of the less demanding nature of the work. The employee turnover rate in the lounges is eight times higher than that of the package stores. Lounge employees tend to be younger and less settled and career-oriented than package store employees. On or about February 22, 1982, petitioner was hired by Jax as a cocktail waitress at the Jax Lounge on the Apalachee Parkway in Tallahassee. She was trained as a cocktail waitress for approximately two weeks, and when the assistant manager was promoted to manager, petitioner began training as an assistant manager. During her months at the Apalachee Parkway lounge, petitioner was a good worker with no complaints or problems. On or about March 24, 1982, petitioner was transferred to the Jax lounge on Thomasville Road in Tallahassee to serve as an assistant manager. On July 9, 1982, she was promoted to the position of manager at that lounge. One coworker, a cocktail waitress, described petitioner as a strict, but good manager with no scheduling, customer or staff complaints. Another coworker, who became the assistant manager when petitioner was promoted to manager, described petitioner as a hard worker but overbearing and bossy, with some scheduling problems and frequent tardiness. A similar description of petitioner was provided by the former manager of the Thomasville Road lounge. A frequent customer at the lounge described petitioner as competent and congenial with customers, and an energetic worker. Petitioner replenished the lounge supplies from the adjoining package store. The manager of the package store felt that she did not have a good understanding of the inventory and supplies she needed at the lounge. On or about July 20, 1982, approximately two weeks after petitioner was promoted to the position of lounge manager, John Chern was promoted to the position of Tallahassee District Supervisor thereby becoming petitioner's direct supervisor. At about that same period of time, the Tallahassee lounges were not operating at a high enough profit and the District Manager instructed Chern to make certain changes in operation. Among the changes were the addition of personnel bartenders and cocktail waitresses, so as to provide better service to the lounge patrons. Mr. Chern told his supervisor, the District Manager, that he had run into problems with petitioner and had experienced difficulty in obtaining cooperation from her in implementing the new schedule. Mr. Chern had also heard complaints about petitioner from other employees of both the lounge and the adjoining package store regarding scheduling and her treatment of her employees'. He felt that her general overall performance as a lounge manager was "weak." Petitioner admits that she felt and told Mr. Chern that she knew it would be difficult to work with him and that she knew if he became her supervisor, she would be fired. Petitioner felt that Mr. Chern was overly strict, and resented the fact that he would call her at home during her off- hours to discuss lounge business. John Chern has been employed with Jax Liquors since 1971, having started as a stock clerk. On August 9, 1982, Mr. Chern discharged petitioner from her employment with Jax Liquors. In explaining the reason for her discharge, Mr. Chern made reference to "outside obligations, your husband and family..." or "family and other obligations." On the following day, Mr. Chern filled out a form explaining the reason for petitioner's discharge as "not right person to run lounge, poor attitude with customers, did not take supervision or work with employees." There were no written reprimands in petitioner's personnel file. While it is the policy of respondent to issue written reprimands for nonmanagerial employees, more is expected from an employee at the managerial level and written reprimands are not required. After petitioner's termination, the assistant manager, a married female, was promoted to the position of lounge manager. Petitioner presented raw data or "head counts" derived from the personnel files of respondent in an attempt to demonstrate that sex and/or marital status had an effect upon the likelihood of involuntary discharge. However, the chosen categories of persons (i.e., males -- without disclosure of their marital status, women with children -- without disclosure of their marital status) were not well-defined and were overlapping. In addition, no statistical analysis was applied and there is thus no statistical significance to these head counts or raw data. No inference can be raised from this data that either gender or marital status was a causative factor in any involuntary termination. Applicants for employment at Jax Liquors are required to list their marital status, number of children, ages of children and who will care for the children. The purpose of these questions is to put the applicant on notice that the hours of employment are often unusual and are subject to sudden change. Lounge employees are also required to sign a form stating their agreement to be reassigned to any lounge and to work any position assigned at the rate of pay for that position. Respondent occasionally requires lounge employees to work at different lounges in different positions when the volume of business anticipated requires additional staffing. Lounge employees are generally able to make more money with a greater volume of customers.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition for relief filed by Angela Portera against Jax Liquors, Inc. be DISMISSED. Respectfully submitted and entered this 12th day of July, 1985 in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1985. COPIES FURNISHED: Virginia Daire 118 N. Gadsden Street Tallahassee, Florida 32301 Douglas W. Abruzzo, with Donald L. Tucker, P.A. Suite 804 Lewis State Bank Building Tallahassee, Florida 32301 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Suzanne Oltman Clerk of the Commission Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
The Issue Whether Respondent committed the violation alleged in Petitioner's Public Accommodations Complaint of Discrimination and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a black woman. On March 27, 2007, Petitioner went shopping at the Wal- Mart Supercenter located at 9300 Northwest 77th Avenue in Hialeah Gardens, Florida (Store). This was Petitioner's "favorite store." She had shopped there every other week for the previous four or five years and had had a positive "overall [shopping] experience." At no time had she ever had any problem making purchases at the Store. At around 5:00 p.m. on March 27, 2007, Petitioner entered the Store's electronics department to look for two black ink cartridges for her printer. In her cart were several items she had picked up elsewhere in the store (for which she had not yet paid). Because the cartridges she needed were located in a locked display cabinet, Petitioner went to the counter at the electronics department to ask for assistance. Maria Castillo was the cashier behind the counter. She was engaged in a "casual conversation," punctuated with laughter, with one of the Store's loss prevention officers, Jessy Fair, as she was taking care of a customer, Carlos Fojo, a non-black Hispanic off-duty lieutenant with the Hialeah Gardens Police Department. Lieutenant Fojo was paying for a DVD he intended to use as a "training video." The DVD had been in a locked display cabinet in the electronics department. A sales associate had taken the DVD out of the cabinet for Lieutenant Fojo. It was Store policy to require customers seeking to purchase items in locked display cabinets in the electronics department to immediately pay for these items at the electronics department register. Lieutenant Fojo was making his purchase in accordance with that policy. Two Store sales associates, Carlos Espino and Sigfredo Gomez, were near the counter in the electronics department when Petitioner requested assistance. In response to Petitioner's request for help, Mr. Espino and Mr. Gomez went to the locked display cabinet to get two black ink cartridges for Petitioner, with Petitioner following behind them. Ms. Castillo and Mr. Fair remained at the counter and continued their lighthearted conversation, as Ms. Castillo was finishing up with Lieutenant Fojo. Petitioner was offended by Ms. Castillo's and Mr. Fair's laughter. She thought that they were laughing at her because she was black (despite her not having any reasonable basis to support such a belief). She turned around and loudly and angrily asked Ms. Castillo and Mr. Fair what they were laughing at. After receiving no response to her inquiry, she continued on her way behind Mr. Espino and Mr. Gomez to the display cabinet containing the ink cartridges. When Mr. Espino arrived at the cabinet, he unlocked and opened the cabinet door and removed two black ink cartridges, which he handed to Mr. Gomez. Petitioner took the cartridges from Mr. Gomez and placed them in her shopping cart. Mr. Espino tried to explain to Petitioner that, in accordance with Store policy, before doing anything else, she needed to go the register in the electronics department and pay for the ink cartridges. Petitioner responded by yelling at Mr. Espino and Mr. Gomez. In a raised voice, she proclaimed that she was "no thief" and "not going to steal" the ink cartridges, and she "repeated[ly]" accused Mr. Espino and Mr. Gomez of being "racist." Instead of going directly to the register in the electronics department to pay for the cartridges (as she had been instructed to do by Mr. Espino), Petitioner took her shopping cart containing the ink cartridges and the other items she intended to purchase and "proceeded over to the CD aisle" in the electronics department. Mr. Espino "attempt[ed] to speak to her," but his efforts were thwarted by Petitioner's "screaming at [him and Mr. Gomez as to] how racist they were." Lieutenant Fojo, who had completed his DVD purchase, heard the commotion and walked over to the "CD aisle" to investigate. When he got there, he approached Petitioner and asked her, "What's the problem?" She responded, "Oh, I see you too are racist and I see where this is coming from." Lieutenant Fojo went on to tell Petitioner the same thing that Mr. Espino had: that the ink cartridges had to be taken to the register in the electronics department and paid for immediately ("just like he had paid for his [DVD]"). Petitioner was defiant. She told Lieutenant Fojo that she would eventually pay for the cartridges, but she was "still shopping." Moreover, she continued her rant that Lieutenant Fojo and the Store employees were "racist." "[C]ustomers in the area were gathering" to observe the disturbance. To avoid a further "disrupt[ion] [of] the normal business affairs of the [S]tore," Lieutenant Fojo directed Petitioner to leave and escorted her outside the Store. In taking such action, Lieutenant Fojo was acting solely in his capacity as a law enforcement officer with the Hialeah Gardens Police Department. Once outside the Store, Lieutenant Fojo left Petitioner to go to his vehicle. Petitioner telephoned the Hialeah Gardens Police Department to complain about the treatment she had just received and waited outside the Store for a police officer to arrive in response to her call. Officer Lawrence Perez of the Hialeah Gardens Police Department responded to the scene and met Petitioner outside the Store. After conducting an investigation of the matter, Officer Perez issued Petitioner a trespass warning, directing that she not return to the Store. At no time subsequent to the issuance of this trespass warning has Petitioner returned the Store (although she has shopped at other Wal-Mart stores in the area). While Petitioner has been deprived of the opportunity to shop at the Store, it has been because of action taken, not by any Store employee, but by Hialeah Gardens law enforcement personnel. Moreover, there has been no showing that Petitioner's race was a motivating factor in the taking of this action.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing Petitioner's Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 10th day of September, 2006.
