The Issue Did the Respondent commit an act of discrimination in refusing the Petitioner public accommodations at its motel?
Findings Of Fact The Red Carpet Inn is a motel located at 5331 University Boulevard in Jacksonville, Florida. Located adjacent to and in front of the property is a topless bar, which is unaffiliated with the motel. The proximity of this bar to the hotel created significant problems for the motel's management because many of the dancers and others working at the bar rented rooms at the hotel. Because of the coming and goings of dancers late into the night and early morning; entertainment of non- guests by dancers; and suspect drug use and sales on and about the premises, the hotel employed an active security detail. The Petitioner, a black female, resided at the hotel in Room 509 for several weeks immediately prior to May 6, 2004. She paid for her room on a nightly basis. Her room rent was frequently paid by persons other than herself. She was observed going from the bar to her room at late hours, and was thought to possibly be working at the bar as a dancer by motel security staff. She was observed visiting with other residents of the hotel at various times including late at night. The staff and manager received complaints from other residents about a person who was identified as the Petitioner. These complaints included, but were not limited to, noise, frequent visitors, and visiting with other guests late at night. As a result of these reports and his concerns about activities in the motel that disturbed other guests and were possibly illegal, the manager decided to refuse the Petitioner further accommodations at the hotel. Clarence Jones, a minister and friend of the Petitioner's family, testified about his visits to the premises. He visited the Petitioner, whom he had known since she was born, to bring her food and money because she was not working. He observed persons who he described as pimps and prostitutes in the vicinity of the motel and bar, together with persons he described as drug pushers. He paid for the Petitioner's room on occasion. Jones and members of the Petitioner's family visited her at the motel, but with the exception of Jones, these visits were during the day. Their testimony indicated that the Petitioner was a good person. The Petitioner testified. She was counseled by Kay Cannon, a black room clerk, to watch the number of calls she made and be careful of her activities because of management's concerns. According to the Petitioner, another desk clerk, Ursula Brooks, used a racial epithet when talking with the Petitioner. Brooks testified, and denied using any racial epithets to anyone, including the Petitioner. The manager and others testified about other residents of the motel who were described as Hispanic and African- American.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order dismissing the Petitioner's Petition for Relief. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 25th day of May, 2005. COPIES FURNISHED: Dione Riley 3875 South San Pablo Avenue, No. 1208 Jacksonville, Florida 32224 Subhash Gandhi Red Carpet Inn 5331 University Boulevard, West Jacksonville, Florida 32216 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
The Issue The issue is whether Respondent, Townsend Seafood, violated section 760.08, Florida Statutes (2018),1/ by discriminating against Petitioner based on her race and/or her sex.
Findings Of Fact Petitioner is a black woman who lives in Jacksonville, Florida. Petitioner testified that she frequently waits at a bus stop adjacent to a strip mall on Townsend Boulevard in Jacksonville, across the street from a Publix Supermarket. In 2017, Townsend Seafood occupied the end of the strip mall nearest the bus stop. Townsend Seafood was a seafood market and restaurant. Petitioner testified that Ahmed Al Janaby, the apparent proprietor of Townsend Seafood,3/ repeatedly accosted her on the public walkway near the bus stop. In early May 2017, Mr. Al Janaby demanded that Petitioner remove a Publix grocery cart from the bus stop. Petitioner responded that she needed the cart because she has a chronic back disease and was unable to carry the several bags of groceries she had in the cart. Furthermore, the cart was on public property, not Mr. Al Janaby’s premises, and Petitioner knew that a Publix employee would retrieve the cart after she got on the bus. On Memorial Day, 2017, Petitioner stopped by Publix on her way home from festivities downtown. As she stood on the public walkway near the bus stop, Mr. Al Janaby came out of his premises and demanded that Petitioner move. When Petitioner declined, Mr. Al Janaby began insulting her choice of clothing, stating that she looked like a “whore.” Petitioner responded by calling Mr. Al Janaby’s mother a whore. At that point, Mr. Al Janaby spat at Petitioner. On July 4, 2017, Mr. Al Janaby again confronted Petitioner on the public walkway near the bus stop, demanding that she move. On this occasion, Mr. Al Janaby used what Petitioner called “the N-word.” When she threatened to call the police, he retreated to his business, but not before again spitting in her direction. On August 21, 2017, Mr. Al Janaby assaulted Petitioner with a broom, which resulted in Petitioner’s toe being broken. This incident also occurred on the public walkway near the bus stop. Petitioner testified that she had no choice but to use the bus stop near Mr. Al Janaby’s business. The bus stop itself was not covered, and the public walkway at the strip mall was the only place to seek refuge from the sun on hot days. Petitioner did most of her shopping in that area, and frequented one business in the same strip mall as Townsend Seafood. She did not shop or eat at Townsend Seafood. Judy Slonka, a white friend of Petitioner’s, testified that she once stood on the public walkway while waiting for the bus on a day when the heat index was over 100 degrees. Mr. Al Janaby emerged from Townsend Seafood and hit her with a broom, saying that she was obstructing the entrance to his business. Petitioner testified that since the events described by her and Ms. Slonka, Townsend Seafood has relocated from the end of the strip mall to an interior storefront. Neither woman has had a problem with Mr. Al Janaby since he moved his business away from the bus stop. Petitioner’s testimony was credible as to the facts of the events she described. Ms. Slonka’s testimony was likewise credible. As the undersigned explained to Petitioner at the conclusion of the hearing, the problem is that the events they described do not meet the statutory definition of discrimination in a “place of public accommodation,” because they occurred on the public walkway outside of Townsend Seafood. Mr. Al Janaby certainly had no right to accost these women on a public walkway, but this was a matter for local law enforcement, not the FCHR.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Townsend Seafood did not commit an act of public accommodation discrimination against Petitioner, Shirley P. Williams, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of July, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2018.
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 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 Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioner 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.1/
Findings Of Fact Parties and Jurisdiction Petitioner is an African-American female who resides in the State of Missouri, who visited Orlando, Florida, in June 2011, and who had a reservation for accommodations at Lake Eve Resort beginning on June 24, 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. Petitioner arrived in Orlando on June 17, 2011, where she stayed at the Hilton Grand International Resort (Hilton Grand) with her immediate family. Her reservation at the Hilton Grand ended on June 24, 2011, when she had reservations at the Lake Eve Resort (Resort) to join her extended family on the occasion of the Boss-Williams family reunion. On June 22, 2011, Petitioner traveled to the Resort to visit with her extended family who had arrived the previous day. When Petitioner entered the lobby of the Resort, she was met by two police officers and two women who did not immediately identify themselves. One of the police officers asked her if she was with the Boss-Williams family reunion. Petitioner inquired why she was being asked if she was with the family reunion, and was told that her party was being evicted. One of the two women with the officers, later identified as Lisa Catena, a Resort manager, asked Petitioner her name, and instructed her staff to cancel Petitioner’s reservation. Thereafter, Petitioner made several calls to members of her extended family to inform them of this turn of events. She first called her sister, Boniris McNeal, who was not on-property at the time, informed her of the eviction, and told her to return to the Resort. Next, Petitioner called her cousin, Denise Austin, who was also off-property at the time, informed her of the eviction, and told her to return to the Resort. Petitioner spent the next several hours in the lobby of the Resort talking with various family members as they returned to the Resort, or came through the lobby from other parts of the Resort, and were told they were being evicted, and waiting with family members while Resort staff worked to reverse credit-card charges and refund monies paid for room reservations. During this time period, Petitioner observed the two police officers, Ms. Catena, and the other unidentified woman, as they approached each African-American person who entered the lobby and asked whether they were with the Boss-Williams reunion. Petitioner observed that the police officers and Resort managers did not stop any non-African-American persons. Petitioner contacted a Westgate resort property in Orlando and was able to secure rooms for the family members who were evicted from the Resort. Respondent provided Petitioner no reason for canceling her Resort reservation and evicting her family from the premises. Petitioner filed a Complaint of Discrimination with the Commission on January 3, 2014. The Complaint alleges that the most recent date of discrimination was June 22, 2011. In a related case, the undersigned has found that some members of Petitioner’s family timely filed complaints of discrimination related to and arising out of the same incidents as those alleged by Petitioner. See Harrington v. Eve Management, Inc., Case No. 14-0029 (Fla. DOAH May 28, 2014). The undersigned, sua sponte, officially recognizes the Recommended Order in that matter, pursuant to Florida Administrative Code Rule 28-106.213(6).
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 Petitioner Denise Strickland; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 24th day of June, 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 24th day of June, 2014.
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 The issue in this case is whether Respondent discriminated against Petitioner on the basis of race, national origin, or disability at Respondent’s place of public accommodation.
Findings Of Fact Respondent is a McDonald’s franchisee operating six McDonald’s restaurants in the Orlando area. At issue in this case is the restaurant referred to as the “Lockhart” store. The Lockhart McDonald’s is located on Orange Blossom Trail in Orlando, in a high-crime, low-income area. This McDonald’s has a history of problems with persons using the restaurant for purposes other than purchasing food and drink there to consume onsite. There has been a wide range of “other purposes” in the Lockhart McDonald’s history: sitting at the dining tables without ordering any food or drink; panhandling (asking customers if they have a spare dollar); bringing in drinks purchased elsewhere, topped off with refills stolen from the McDonald’s drink station; soliciting restaurant customers for prostitution; and using the bathrooms to ingest or inject illegal drugs, leaving behind used hypodermic needles and other paraphernalia. On two separate occasions, people overdosed on heroin in the bathrooms. To combat these problems, which hurt business, Mr. Vidler enlisted the help of his brother, an Orange County Deputy Sheriff, who conducted drug and prostitution stings to help clean up the restaurant. In addition, the Lockhart McDonald’s adopted a no-loitering policy, a no-solicitation policy, and a policy requiring that only food and drink purchased there may be consumed there. Notices of these policies are prominently displayed on signs at the restaurant. Respondent’s witnesses testified, credibly and consistently, that these policies are enforced uniformly and strictly, with the goal being to avoid the problems they have had with persons improperly using the restaurant’s facilities. As part of the enforcement procedure, if someone is observed seated at a table without any apparent McDonald’s food or drink items, after a few minutes a manager or other staff member will approach that person and politely inquire whether the person intends to make a purchase. Petitioner is a black woman who has been a customer at the Lockhart McDonald’s. She and her boyfriend, who is not black,2/ have gone there on occasion, made purchases, and enjoyed their meals, without incident. On the day in question, December 28, 2015, Petitioner and her boyfriend went to the Lockhart McDonald’s for breakfast. The restaurant was not very busy or crowded when they arrived, with perhaps one other customer in line and another customer seated at a table in the separate dining area. Petitioner went to the dining area, while her boyfriend went to the counter to place their order. The restaurant is fairly large, with physical and visual separation of the area where customers wait in line to place orders, pick up food, and get drinks at the drink station from the area where customers can go to sit at tables to consume their purchases. Behind the ordering counter on the employee side, there is a door used by employees to enter the dining area. Through a small window at the top of the door, a customer waiting in line at the counter might be able to glimpse a small portion of the dining area, but otherwise would not be able to see or hear what is going on in the dining area. Petitioner took a seat at a table by an outside window. She propped both of her feet up on the Corian window ledge and sat there gazing out the window. Eric Vidler, the operations manager of Respondent’s six restaurants, was in the Lockhart McDonald’s that morning. After Petitioner had taken her place by the window, Mr. Vidler and the Lockhart restaurant manager, Adam Allegroe, entered the dining area together to conduct a cleanliness walk-through. They saw Petitioner, taking note of her unusual positioning, with feet propped up on the windowsill,3/ staring out the window. They also noted that there was no sign of any McDonald’s food or drink purchases on the table or in her hands. After a few minutes, consistent with the restaurant’s policies and procedures, Mr. Vidler approached Petitioner and politely inquired whether she intended to make a purchase. She did not answer him.4/ Mr. Vidler and Mr. Allegroe testified that usually, when they make such an inquiry, the person will respond, but sometimes they do not respond. Since their goal is not to make a scene, offend, or embarrass anyone, under these circumstances they will usually walk away for a short period of time. If the person had no legitimate business there, then the person often will disappear at that point. Mr. Vidler and Mr. Allegroe retreated to the men’s and women’s bathrooms, where they spent three to five minutes conducting their cleanliness inspection. When Mr. Vidler and Mr. Allegroe returned to the dining area, Petitioner was still seated, positioned the same way, with her feet still propped up on the windowsill. She was still staring out the window, and still had no McDonald’s purchases on the table or in her hands. Mr. Vidler went back up to Petitioner, and following up on his prior statement to her, this time he told her, “Ma’am, if you are not going to be making a purchase today, then you are loitering and I need to ask you to leave.” Mr. Vidler testified credibly that this is how he always handles the second approach when the person does not answer his first inquiry. The message, though direct, was delivered in a calm tone. Mr. Vidler did not yell at Petitioner. He did not threaten to call the police or have her arrested. This time, Petitioner responded. She got up, flung a chair in Mr. Vidler’s direction with sufficient force so that the chair traveled some distance with all four chair legs four to six inches off the ground, until it fell against and partially on a half-wall that set off that portion of the dining area.5/ Petitioner also responded verbally, using an elevated voice to express her anger. Mr. Vidler said that she cursed, using a four-letter word. Although more than one year later he did not recall exactly which curse word or words she uttered, he did recall that her words were not nice. Mr. Allegroe corroborated Mr. Vidler’s recollection, testifying that Petitioner stood up, “slung” the chair in their direction, and “started speaking profanity.” (Tr. 83). She then left the restaurant. The testimony of Mr. Vidler and Mr. Allegroe describing their two encounters with Petitioner was corroborated by Shahanna Owensby, a guest services department manager for the Lockhart McDonald’s. Ms. Owensby was seated at a table in the dining area, working on pricing and tagging merchandise, when she noticed Petitioner. She observed Mr. Vidler and Mr. Allegroe conducting their cleanliness walk-through. She observed Mr. Vidler’s initial approach to Petitioner. She heard Mr. Vidler ask Petitioner if she was going to be making a purchase, and confirmed that Petitioner did not respond. She saw Mr. Vidler and Mr. Allegroe keep walking after that, back in the direction of the bathrooms. She observed Mr. Vidler approach Petitioner a second time, estimated at four to eight minutes later. She heard him tell Petitioner that if she was not making a purchase, he needed to ask her to leave. She saw Petitioner stand up, pick up a chair, and fling, throw, or toss it: “It was up in the air and it was off the ground, by her hand.” (Tr. 98). By the time of Petitioner’s stormy exit from the restaurant, a family--a woman with some younger children--had entered the dining area and was seated near Ms. Owensby. After Petitioner left, Ms. Owensby apologized to the family, who had witnessed the scene and had been exposed to the profanity used by Petitioner within their hearing range. After Petitioner left the restaurant, her boyfriend walked into the dining area with the food he had purchased. The boyfriend described what happened next: Jennifer, my wife, was not sitting at the table. I thought she was at the--in the bathroom. I put my tray on the opposite side of the table. I was sitting to the left, I guess, or the right. I was sitting on the other side. And that’s when I saw Mr. Vidler with a surprised face, you know, like wow-- Q. [Mr. Millan]. Uh-huh. A. --what happened here. So he approached me and he said that he didn’t know--that he didn’t know. And I asked him that he didn’t know what. He said that he didn’t know that she was my wife, that she was there with me. (Tr. 108). At that point, Petitioner (whom Robert Millan clarified is his girlfriend, not his wife) knocked on the restaurant window, signaling for him to come outside. He went out to her and asked what happened. She told him that that person [Mr. Vidler] offended her. When asked how he offended her, Robert Milan said that Petitioner responded as follows: She said he told her that what was she doing there, if she was going to buy food or if she was just going to sit there. And those were the same words that he told me that he told her.[6/] And then when I came back inside the store, I went and I asked him, you know, to explain to me what was going on. And he said that. You know, that--he said that he didn’t know that she was there with me. And he apologized to me. He asked me if he -- if he could go apologize to my wife, Jennifer. And I really told him that I think that was beyond apology because she was like, you know, angry. So he said, well here, I give you my card and you can call the office and see what, you know, we can do about it. (Tr. 109-110). For some unexplained reason (perhaps a mistake filling the order or perhaps a request for customized food), Petitioner’s boyfriend waited ten minutes at the ordering counter, where he was not able to see or hear the encounters in the separate dining area. He was not even aware that Petitioner had stormed out in anger, although he confirmed that she was, indeed, angry when he went outside. Robert Millan did call Respondent’s office, as suggested by Mr. Vidler, and spoke with the owner of the franchise. The owner also offered to apologize to Petitioner, but Robert Millan did not think she wanted to speak to anyone. The owner then offered a $50 gift card. The boyfriend said that he would ask Petitioner, but she refused the gesture. No evidence was presented of any racial statements made directly or indirectly to Petitioner, or of any racial overtones to any of the statements made directly or indirectly to Petitioner. The circumstantial evidence presented does not support an inference that Respondent intentionally discriminated against Petitioner based on her race. Instead, all of the circumstantial evidence supports an inference that Respondent did not discriminate against Petitioner on the basis of her race. Respondent has a no-discrimination, no-harassment policy that is enforced as to its employees, customers and potential customers. The Lockhart McDonald’s has a very diverse staff. A comparison of the number of restaurant employees who are members of the classes of white, black, or Hispanic, the largest category represented by the restaurant’s employees is black; the next- largest category is Hispanic; white employees are in the minority. As to gender, female employees outnumber male employees. Manager positions are spread among white and black males, and white, black, and Hispanic females. The operations manager in charge of Respondent’s six restaurants, Mr. Vidler, is a white male as is the restaurant’s manager, Mr. Allegroe. The other employee testifying at hearing, Ms. Owensby, is the restaurant’s guest services manager and she is a black female. The diversity of the restaurant’s staff is circumstantial evidence, though not particularly weighty evidence, suggesting a general absence of intent to discriminate on the basis of race.7/ More compelling circumstantial evidence was provided by Mr. Vidler, who is the individual accused of discriminating against Petitioner because she is black. Mr. Vidler testified with great sincerity that Petitioner’s accusation is not only unfounded, but it hits a particular sore spot with him. Although he is a white male, his daughter is half-black. He has experienced the pain of discrimination based on race, with unkind questions, or worse, directed to him or to his daughter, because their races do not match. This personal fact shared by Mr. Vidler is compelling circumstantial evidence giving rise to a inference that he would not intentionally discriminate against Petitioner based on her race. The evidence strongly supports a finding, and it is so found, that Mr. Vidler’s December 28, 2015, encounters with Petitioner were the reasonable implementation of Respondent’s reasonable policies for its Lockhart restaurant to ensure that persons using the restaurant’s facilities are there for the purpose of purchasing and consuming food and drink. The credible, consistent testimony of Mr. Vidler and Respondent’s other employees who testified is that the no-loitering policy is applied uniformly to all persons, regardless of race, nationality, gender, disability, or any other classification, who are not apparently customers in that they have no McDonald’s food or drink purchases. These persons are asked whether they intend to make a purchase, and if they do not respond in some fashion that they are indeed there to purchase food and/or drink, they are told that if they are not there to make a purchase, they are loitering and will have to be asked to leave.8/ Petitioner has only herself to blame for not making clear to Mr. Vidler that she was there with her boyfriend, who was in line at the counter ordering their breakfast. That would have ended the matter. That Mr. Vidler only took the action he did because he did not know Petitioner was there with her boyfriend was perhaps most convincingly established by Robert Millan’s testimony describing the utter surprise on Mr. Vidler’s face when he realized that Petitioner had, in fact, been waiting for someone who had been purchasing food. The undersigned finds as a matter of ultimate fact that Respondent did not intentionally discriminate against Petitioner based on her race (the only protected class proven at hearing) or any other classification that might have applied to Petitioner but was not proven at hearing.9/
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 the Petition for Relief filed by Petitioner Jennifer M. Foster-Garvey. DONE AND ENTERED this 11th day of May, 2017, 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 11th day of May, 2017.
Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. On July 24, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit wie, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:48 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $100.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this 3st day of “Pecen Axe , 20/3. Bele Wer fp Dusan S, Weep Diann S. Wordéalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this Go day of anvary , 2014 For the Division of Hotels | Hotels and Restaurants “Certified Article Number | oy 71596 4008 9411 516 1790 SENDERS RECORD.“ cory
