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, Steak n Shake Restaurant (“Steak n Shake”), violated section 760.08, Florida Statutes,1/ by discriminating against Petitioner based on his race.
Findings Of Fact Petitioner is a white male who lives in Ormond Beach, Florida. Petitioner testified that he had been a regular customer of the Steak n Shake at 120 Williamson Boulevard in Ormond Beach for about four years. Petitioner entered the restaurant on March 30, 2015, and was seated by server Amanda Hobbs, a black female. Petitioner testified that neither Ms. Hobbs nor any other server would wait on him. He saw Ms. Hobbs take the order of a black couple who came into the restaurant after he did. Petitioner complained to the manager, Mark Regoli, a male of mixed race. Petitioner testified that he told Mr. Regoli that the service had been poor for several months, and complained about not being served on this occasion. Petitioner stated that Mr. Regoli accused him of being “loud,” but explained that he is hearing-impaired and may sometimes speak in a loud voice. Petitioner testified that Mr. Regoli became angry, “got up in my face,” and blocked Petitioner from leaving the restaurant. Petitioner testified that he left the restaurant. It was only later that he learned that the police had been called by someone at Steak n Shake. Counsel for Steak n Shake did not cross-examine Petitioner. Steak n Shake called no witnesses. Steak n Shake’s documentary evidence consisted of hearsay witness statements that cannot be considered in the absence of admissible evidence that the hearsay may be said to supplement or explain. Therefore, Petitioner’s narrative is the only sworn, admissible evidence before this tribunal. Though Petitioner’s testimony was clearly a self-serving version of the events that occurred at the Steak n Shake on March 30, 2015, it is the only version of events that may be considered under the rules of evidence. Petitioner’s testimony lacks complete credibility only when one compares it with the excluded witness statements of the Steak n Shake employees. If one considers Petitioner’s testimony standing alone, as this tribunal must, the worst one can say is that it is one-sided and incomplete. This state of affairs is not the fault of Petitioner, who was under no obligation to tell anything other than his side of the story. Petitioner represented himself and so is not entitled to attorney’s fees. Petitioner may be entitled to an award of costs.
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, Steak n Shake Restaurant, committed an act of public accommodations discrimination against Petitioner, Virgil W. Phillips; Prohibiting any future acts of discrimination by Respondent; and Awarding Petitioner his costs. DONE AND ENTERED this 29th day of April, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2016.
The Issue Whether the Florida Department of Agriculture and Consumer Services (Respondent or Department) discriminated against Deborah Owens (Petitioner) by denying her reasonable accommodation and discharging her based on her disability.
Findings Of Fact Petitioner was a Career Service employee of the Department as an Environmental Specialist II from 2009 until her termination on May 5, 2016. As an Environmental Specialist II, commonly referred to as an “inspector,” Petitioner worked in the Department’s Division of Agricultural Environmental Services, Bureau of Inspection and Incident Response (Department’s Bureau). As an inspector, Petitioner spent approximately 40 percent of her time performing inspections and investigations pursuant to chapters 388 (mosquito control), 482 (pest control), 487 (pesticide regulation and safety), 576 (agricultural fertilizers), 578 (seed), and 580 (commercial feed and feedstuff), Florida Statutes,1/ and related administrative regulations. The rest of Petitioner’s duties consisted of preparing reports based on her inspections and investigations, and maintaining knowledge of applicable statutes and rules. All of the inspectors in the Department’s Bureau were required to be physically capable of performing assigned inspections. While the amount of climbing varied from month to month and place of inspection, Environmental Specialist IIs, as part of their job as inspectors, are required to climb. In the case of fertilizer inspections, inspectors are required to take samples from fertilizer plants, storage vehicles, and trailers in the field. While climbing is not required at those fertilizer plants that have sampling rooms, not all fertilizer plants have sampling rooms. Therefore, inspectors need to be prepared to climb at fertilizer plants. In addition, inspectors are required to climb atop Killebrew trailers2/ or similar equipment in the field to take samples. For inspection of Killibrews, which have separate storage compartments housing fertilizer, an inspector must use a ladder to climb to the top of the Killibrew and obtain samples. Seed inspections may also involve climbing, depending on how the seed is arranged. In some cases, bagged seed is stacked on large pallets, in which case, unless it can be moved, an inspector may have to climb in order to take a sample. During Petitioner’s tenure as an inspector, chapter 482 pest control inspections were added to the inspection duties of Environmental Specialist II following a reorganization of the Department’s Bureau. While, at the time of the hearing, climbing for those types of inspections had been put on hold, fumigation inspections have, at times, required climbing on a ladder into attic spaces or to reach higher exterior portions of a building. Climbing is a variable part of every inspector’s job. The amount of climbing that is required increases during heavy agricultural growing seasons. Although a variable activity, when climbing for inspections is required, it can be laborious. All of the testifying witnesses, who were inspectors for the Department’s Bureau, reported they were required to climb in performing their jobs for the Department. In applying for her Environmental Specialist II position, on a document entitled “Pesticide Compliance Environmental Specialist II Self-Screening/Willingness Questionnaire,” which listed requirements necessary for all candidates, Petitioner affirmatively acknowledged that she was willing and able to “[c]limb and work on top of delivery and application equipment to obtain samples when necessary.” While the climbing requirement varies in frequency, climbing was a necessary part of Petitioner’s job duties as an inspector for the Department, and is a necessary component of an Environmental Specialist II’s job. In 2015, Petitioner took medical leave and underwent double knee replacement surgery. Historically, Department management meets each fiscal year to review inspection numbers by region for purposes of determining and assigning the minimum number of inspections for each inspector for the fiscal year. At the meeting for the 2015-2016 fiscal year, Petitioner was assigned a reduced number of inspections based on the understanding that she would be absent from work for approximately six months due to her medical leave in 2015. Instead of a full fiscal year of goals, Petitioner was given six months of performance goals, reducing the total number of inspections assigned to Petitioner based on her medical leave of absence. Upon her return to work in November 2015, Petitioner had physical limitations stemming from her knee surgery. Petitioner presented to her then-supervisor at the Department, “Dusty” Markham, a doctor’s note dated November 20, 2015. The doctor’s note, from Petitioner’s treating physician, Dr. Richard Vlasak, on UF Health Physician’s stationary, stated, in pertinent part: Deborah Owens has been under my care for treatment of bilateral knee DJD, which included surgery S/P bilateral total knee arthroplasties performed 5/20/15. Limitations: Patient may return to work as of 11/20/15 with restrictions. No cannot [sic] climb on fertilizer trailers, killbrews [sic] no climbing ladders. The above limitations are temporary for 3 months after return to work. Patient is expected to make a full recovery and resume all activities after 3 months time. Upon her return, based on medical information Petitioner provided to the Department’s management, Petitioner was assigned only those inspections that she was medically capable of performing. In February 2016, Petitioner was assigned to the Department’s Region I, and Bryan Smithey, an environmental manager with the Department, became Petitioner’s direct supervisor. Mr. Smithey oversees all of Region I, a territory stretching from Levy County, northward, and westward to Escambia County. Mr. Smithey supervised Petitioner and eight other environmental specialists. Petitioner was assigned a territory within Region I consisting of Gilchrist, Dixie, and Levy Counties. Petitioner’s assigned territory included a fertilizer plant in Trenton, Florida. This plant did not have a sampling room. Because of Petitioner’s temporary restrictions on climbing, other inspectors were assigned to cover Petitioner’s inspections at the Trenton plant. One of the inspectors who covered for Petitioner was Andreas Coveney. Mr. Coveney conducted numerous inspections for Petitioner at the Trenton plant. In order to conduct the Trenton plant inspections, Mr. Coveney had to drive over two hours, one-way, from his home. Another inspector, Ed Harris, conducted over 40 inspections for Petitioner at the Trenton plant. In doing so, Mr. Harris had to drive from his assigned area of Ocala. The inspections that Mr. Coveney and Mr. Harris conducted for Petitioner were additional inspections, separate and apart from their regularly assigned duties. The inspections conducted for Petitioner were not accommodations for her disability. Rather, they were temporary assistances provided for Petitioner at a time when Petitioner was unable to perform the essential duty of climbing as an inspector. Petitioner argues in her Proposed Recommended Order that an e-mail dated November 19, 2015, in which she suggested working from home “while the matter gets cleared up” was a request for accommodation for her disability. It is found, however, that Petitioner’s suggestion was a request for permission to do some work from home for a short time, before actually returning to work, because she was out of sick leave; and it was not a request for accommodation of her disability. In March 2016, Petitioner presented another doctor’s note to management. This note, dated March 10, 2016, was also from Dr. Vlasak. The note again stated that Petitioner “[c]annot climb on fertilizer trailers, killbrews [sic] or climbing ladders.” The new letter, however, stated: “The above limitations are permanent.” Respondent has a policy governing Inefficiency or Inability to Perform Job Duties in Administrative Policy and Procedure (AP&P) No. 5-3. The policy states, “Employees shall, at a minimum, be able to perform duties in a competent and adequate manner.” Id. A violation of this standard can result in termination. By letter dated April 1, 2016 (Intent to Terminate Letter), the Department informed Petitioner of its intention to dismiss her. The Intent to Terminate Letter explained, in part: On March 10, 2016 we received a letter from your physician stating that you are permanently restricted from climbing on fertilizer trailers, killibrews and ladders. While your medical condition is not being questioned, you are expected to, at the minimum, be able to perform duties in a competent and adequate manner. As an employee with the department since December 11, 2009, you are aware that you must be able to perform the essential duties of your position. Your actions constitute a violation of AP&P No. 5-3, Section V, Inefficiency or Inability to Perform Assigned Duties, (Page 3). The Intent to Terminate Letter further informed Petitioner of her right to attend a meeting to be conducted pursuant to section 110.227(5)(a), Florida Statutes, on April 26, 2016 (Predetermination Conference), where she would be allowed to answer, orally or in writing, the charges against her. On April 12, 2016, prior to the scheduled Predetermination Conference, Petitioner provided to Department management another letter regarding her work status. The letter, dated April 12, 2016, was not signed by her physician. Rather, it was signed by a licensed practical nurse (LPN). The April 12, 2016, letter states that it is a “revised work status letter.” The letter restates the previous “[c]annot climb on fertilizer trailers, killbrews [sic] or climbing ladders,” but, instead of advising that the restrictions were permanent, states that “[t]he above limitations are temporary for 12 months as of 3/10/16 at which time we will re-evaluate work status.” The April 12, 2016, letter was apparently authorized by Petitioner’s treating physician, as the LPN’s signature appears above Dr. Vlasak’s signature block, and the letter bears the same UF Health Physician’s letterhead as previous letters from Dr. Vlasak. Petitioner attended the Predetermination Conference, during which she advised that she was currently unable to climb. The April 12, 2016, letter was considered at the Predetermination Conference. The Department’s memorandum dated April 27, 2016, regarding the Predetermination Conference, authored by the Department’s assistant director of Division of Food Safety, states in part: A subsequent letter dated April 12, 2016, from a member of the physician’s staff specified that these same limitations were temporary for the next 12 months at which time they will be re-evaluated. Even though the April 12, 2016, letter was considered, the assistant director supported the recommendation to terminate Petitioner. As he explained in the April 27, 2016, memorandum: In considering the information provided, I looked at Ms. Owens current position description and considered the physical requirements of the inspector position. The position requires someone with full physical capability. Ms. Owens has been medically limited from performing certain duties for almost a year already and is expected to be limited for at least another full year or possibly permanently. Therefore, I am supporting the recommendation for termination for inability to perform assigned duties. Consistent with the Intent to Terminate Letter and the assistant director’s support for termination, by letter dated May 5, 2016, signed by the chief of the Department’s Bureau of Personnel Management, Petitioner was terminated from her position with the Department. Petitioner never requested an accommodation for a disability prior to her termination.
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 consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of March, 2018, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2018.
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, a place of public accommodation, violated Chapter 760 and Section 413.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Ricky Krell, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Dustin's Barbeque, which is a structure for public accommodation. On June 5, 2007, Petitioner, accompanied by his wife and his service dog, Zsa-Zsa, visited Respondent restaurant for the purpose of eating therein. Petitioner and his wife were seated and ordered their meal without incident. Zsa-Zsa was on a leash which was several feet in length, long enough to allow the dog to "sniff" other customers and food. Zsa-Zsa began "sniffing" contiguous customers and their food. The lease was stretched across the aisle between tables. On one occasion, a waitress almost tripped over the leash. Respondent's employees, who were familiar with service dogs having been in the restaurant, opined that the dog did not conduct itself as a trained service dog. As a result of the dog's activities and concern for the health and safety of other customers and employees, Respondent's on-site manager requested that Petitioner control the dog. Petitioner was unwilling or unable to control the dog, and the dog's inappropriate conduct continued. As a result, the manager asked Petitioner to take the dog outside. Petitioner would have been able to complete his meal if he had been able to control the dog or he had opted to take the dog outside and return to his meal without the dog. Petitioner refused the request to take the dog outside and became loud and used profanity. Petitioner finished his meal. The request that Petitioner remove the dog from the restaurant was reasonable under the existing circumstance and did not reflect a discriminatory act against Petitioner. The City of Melbourne police were called and when the officer arrived, she issued a trespass warning to Petitioner and his wife.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 25th day of November, 2008, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katherine Hurst Miller, Esquire Kelly V. Parsons, Esquire Cobb Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Ricky Krell 1889 Cedarwood Drive Melbourne, Florida 32935
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.
The Issue The issue in this case is whether Respondent, a public lodging establishment, unlawfully discriminated against Petitioner, who is African-American, by refusing to provide her accommodations or service based upon race.
Findings Of Fact Petitioner Phyllis Phyl ("Phyl") is an African-American woman who resides in Boca Raton, Florida. Respondent G6 Hospitality, LLC, d/b/a Studio 6 ("Studio 6"), is the owner and operator of the Studio 6 Extended Stay Hotel located in Pompano Beach, Florida (the "Hotel"). Phyl arrived at the Hotel at around 1:30 p.m. on February 22, 2014. Previously, she had made a reservation for a two-night stay, booking a nonsmoking room with a queen bed. Phyl was aware that check-in time at the Hotel was 3:00 p.m., but she decided to take a chance that a room would be available for earlier occupancy. When Phyl attempted to register, however, the clerk informed Phyl that no rooms were available for early check in. Phyl elected to wait in her car, which was parked in the Hotel's parking lot. From there, she watched a black man enter the Hotel and walk out a few minutes later. Phyl assumed that he, too, had been told that his room was not ready. She did not, however, witness his attempt to check in (if that is what occurred), and therefore Phyl lacks personal knowledge of this man's transaction with the Hotel, if any.2/ Unhappy, Phyl walked around the Hotel grounds and peered through the window of an apparently vacant room, which she determined, based on her observation, was clean and ready for occupancy. Phyl might have been mistaken, for she could not see, e.g., the bathroom, but even if her assumption were correct, the fact is not probative of discriminatory intent. This is because a room is not "available" for guest occupancy at this Hotel until after a manager has inspected the room, deemed it "clean," and caused such information to be entered into the Hotel's computer system, at which point the front-desk clerk is on notice that the room is ready. Thus, there is a delay between the time the housekeeping staff finishes cleaning a room and the time the front-desk clerk is able to let the room to a guest. After peeking in the seemingly empty room, Phyl returned to her car, and soon she noticed a white couple enter the Hotel, from which they exited several minutes later. Phyl did not witness the couple's activities inside the Hotel. The man and woman got into their car and drove around the Hotel premises. Phyl followed. She watched the couple park, leave their car, and enter a room. She observed the man retrieve some luggage and bring his bags to the room. Phyl assumed that this couple had just checked in. Phyl returned to the Hotel lobby and inquired again about the availability of a room. This time the clerk told her a room was ready. Phyl checked in at 2:09 p.m. Phyl stayed two nights, as planned, and paid the rate quoted in her reservation. When she checked out on February 24, 2014, the clerk refunded the $25 security deposit Phyl had given the Hotel at check in, which was required because she wanted to pay cash for the room (and did). Phyl claims that the clerk was rude to her, and so she left without taking a receipt. Hotel business records show that on February 22, 2014, no guest checked in between Phyl's arrival at 1:30 p.m. and 2:09 p.m., when she herself checked in. The white man who (together with a female companion) seemed to have checked in while Phyl was waiting actually had checked in earlier that day, at 11:14 a.m. The undersigned rejects as unfounded Phyl's contention that the Hotel's records are unreliable and possibly fraudulent and instead accepts them as persuasive evidence. Ultimate Factual Determinations At the material time, the Hotel was a "public lodging establishment" within the reach of section 509.092, Florida Statutes, and a "public accommodation" as that term is defined in section 760.02(11). Thus, the Hotel is accountable to Phyl for unlawful discrimination in violation of the Florida Civil Rights Act if such occurred. The greater weight of the evidence, however, fails to establish that the Hotel refused accommodations or service to Phyl, or otherwise unlawfully discriminated against her. Rather, the Hotel provided Phyl the type of room she had reserved, at the quoted rate, for the length of stay she requested. Indeed, despite arriving 90 minutes before the Hotel's published check-in time, Phyl was able to get a room early, after waiting little more than half an hour. The Hotel's conduct, in this instance, cannot be faulted.
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 Phyl's Petition for Relief. DONE AND ENTERED this 22nd day of April, 2015, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2015.
