The Issue Whether Respondent discriminated against Petitioners on the basis of their race in violation of Chapter 760, Florida Statutes (2006).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Respondent, "Travelodge," is a Florida corporation: Canterbury Oak, Inc., d/b/a Travelodge. It is a public lodging establishment. Petitioners, Louis and Constance Taylor, are an African-American husband and wife and are members of a protected class. In the early afternoon, Sunday, July 16, 2007, Petitioners and their children arrived in Clearwater Beach and attempted to register and obtain a room at the Travelodge for two nights. They did not have reservations. On that particular weekend, there was a youth soccer tournament in Clearwater Beach, and the Travelodge had all rooms occupied on Saturday, July 15, 2007, with 44 of the 54 rooms being vacated the morning of July 16, 2007. Typical check-out time is 11:00 a.m.; extra housekeeping staff had been hired to prepare the rooms for Sunday occupancy. The fact that Sunday morning "check-outs" were largely youth soccer participants made the room clean-up and preparation particularly time consuming. Guests, without reservations, arriving in the early afternoon were told that no rooms would be available until after 3:00 p.m. Petitioner Louis Taylor, who actually entered the Travelodge lobby and requested accommodations (Petitioner Constance Taylor remained in the car with their children), testified that the desk clerk (Craig Harmul) was on the telephone when Petitioner asked if a room was available for two nights. Petitioner testified that the desk clerk said "no." Petitioner Louis Taylor decided not to "push the issue" and returned to the car. Petitioners then checked into another local motel. Petitioners had stayed at the Travelodge on several previous occasions; it was their favorite motel in Clearwater Beach, and they and their children were disappointed. Petitioner Constance Taylor then called the "1-800 national reservations service" for Travelodge and was advised that rooms were available. Later that day she called Kathy Mittler, Respondent's general manager, and suggested that they had been denied accommodations because of their race. Ms. Mittler explained that everyone was told that they would have to wait until 3:00 p.m., and advised that rooms were available and that Petitioners could come and get a room.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing both Petitions for Relief. DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Martin R. Cole Travelodge 401 Gulfview Boulevard Clearwater Beach, Florida 33767 Louis Taylor 5368 Aeolus Way Orlando, Florida 32808 Constance Taylor 5368 Aeolus Way Orlando, Florida 32808
The Issue The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction.
Findings Of Fact Petitioner alleges in the petition that she was “the victim of racial discrimination and unfair business practice” in August 2007 when she went into Respondent’s store to purchase a cellular phone and one of Respondent’s employees became hostile and yelled racial epithets at her for no apparent reason.2/ The petition refers to Respondent as “a phone store.” The Executive Director of FCHR advised Petitioner in a letter dated October 8, 2008, that FCHR does not have jurisdiction to investigate her discrimination complaint. The letter explained the basis for this determination as follows: The information provided indicates that [Respondent] is strictly a retail store. It is not in the business of providing lodging, selling food for consumption on the premises, and is not a gasoline station or a place of exhibition or entertainment. Moreover, no covered establishment is located within [Respondent]’s actual physical boundaries. Therefore, [Respondent] is not a “public accommodation” as defined [in Section 760.02(11), Florida Statutes]. The petition was filed with FCHR on November 14, 2008.3/ The petition does not allege that Respondent is a “public accommodation” as defined by statute. Rather, as noted above, it characterizes Respondent as “a phone store.” The petition includes two attachments. The first attachment provides a narrative of the alleged discrimination. The second attachment includes excerpts from Sections 760.01 and 760.06, Florida Statutes, and what amounts to legal argument concerning the scope of FCHR’s duties under those statutes and Section 760.07, Florida Statutes. On December 2, 2008, the undersigned entered an Order to Show Cause because the petition did not appear to raise any disputed issues of material fact as to whether Respondent is a “public accommodation.”4/ The Order to Show Cause directed Petitioner to: show cause in writing as to why an Order Closing File or a Recommended Order of Dismissal should not be entered for the reasons set forth above and/or Petitioner shall file an amended petition that identifies the factual basis upon which she contends that Respondent is a “public accommodation” . . . . The Order to Show Cause advised Petitioner that: Failure . . . to allege disputed issues of fact as to whether Respondent is a “public accommodation” will result in the entry of an Order Closing File or a Recommended Order of Dismissal. Petitioner filed a response to the Order to Show Cause on December 16, 2008. The response does not include any factual allegations that would establish that Respondent is anything other than a retail store. The response simply includes what amounts to additional legal argument concerning the scope of FCHR’s jurisdiction. Neither the petition, nor the response to the Order to Show Cause raises factual allegations that, if proven, would establish that Respondent is a “public accommodation” as defined by statute. Moreover, based upon the petition’s characterization of Respondent as “a phone store,” there is no dispute concerning the determination in the Executive Director’s letter that Respondent “is strictly a retail store” and not a “public accommodation.” This is the only material issue as this case is presently postured.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 22nd day of December, 2008.
The Issue The issue in this case is whether Respondent, a restaurateur, unlawfully discriminated against Petitioners, who are African-Americans, by refusing to serve them based upon race.
Findings Of Fact On or about July 7, 2001, Petitioners Veronica King and Walter King (the “Kings”), who were then on vacation in Miami Beach, Florida, decided to eat dinner at La Playa de Varadero Restaurant (“La Playa”), a Cuban restaurant near their hotel.2 They entered the restaurant some time between 3:00 and 5:00 p.m. Though the dining room was full of patrons, there were a few empty tables. The Kings seated themselves. The Kings reviewed the menus that were on the table and conversed with one another. They waited for a server, but none came promptly. After waiting about 10 or 15 minutes, Mrs. King signaled a waitress, who came to their table and took their drink and food orders.3 The waitress brought the Kings their drinks without delay. The food, however, did not appear, and the Kings grew increasingly impatient and irritated. It seemed to the Kings, who are African-Americans, that other customers——none of whom was black——were being served ahead of them.4 After about a half an hour or so, having yet to be brought food, the Kings decided to leave without eating. On the way out of the restaurant, the Kings paid the cashier for their drinks. They complained to the cashier about the slow service and expressed to her their dissatisfaction at having waited so long, and in vain, for their meals.5 The Kings perceived that the cashier and other employees, including their waitress who was standing within earshot, were indifferent to the Kings’ distress. Ultimate Factual Determinations At the material time, La Playa was a “public food service establishment” within the reach of Section 509.092, Florida Statutes, and hence subject to liability for unlawful discrimination in violation of the Florida Civil Rights Act. The greater weight of the evidence fails to establish that La Playa refused to serve, or otherwise unlawfully discriminated against, the Kings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing the Kings’ Petition for Relief. DONE AND ENTERED this 19th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2003.
Findings Of Fact Sunlight Temple, Inc., is a Florida corporation which is licensed by the State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, under License No. 52-00041H, which license was current at all times pertinent to the matters at issue here. On February 15, 1982, the Sunlight Temple facility, located at 638 N.W. First Street, Ocala, Florida, consisting of a two-story building containing a meeting room and kitchen on the ground floor, as well as several sleeping rooms and cooking facilities on the second floor,, was inspected by Philip D. Saunders, a codes enforcement inspector with the City of Ocala Building Department. This routine inspection was bade in conjunction with Housing/Sanitation Inspector Thurman Cox. As a result, certain deficiencies were noted, as follows: (See Pages 3 and 4 of this Recommended Order.)* These deficiencies were forwarded to the Respondent in a letter dated February 16, 1982. On or about February 16, 1982, the Temple facility was also inspected joy L. K. McLemore, a City of Ocala Fire Inspector. He also noted deficiencies, as follows: (See Page 5 of this Recommended Order.)* These violations, which directly parallel those listed in Paragraph 2 above, were forwarded to the Temple by letter on February 16, 1982. No further recorded inspections of the facility were made until October 27, 1982, when Mr. William B. Dickson, an inspector with the Division of Hotels and Restaurants, made a routine inspection of this facility. Mrs. Josephine Magwood was also present. During this inspection, Mr. Dickson found many deficiencies. These were recorded on DBR Form 226, a Public Lodging Inspection Record, and include items in the safety, sanitation, and general areas. All discrepancies were rated as major and included electrical deficiencies, appliances badly installed, building repair/painting requirements, hot and cold water requirements, plumbing defects, termite infestation, and the overall unsanitary and hazardous condition of the building. An insufficient number of outlets resulted in the unsafe use of extension cords. Gas stoves in the kitchen did not have any safety cutoff. Gas appliances were not vented. Mr. Dickson requested that they all be checked for safety by the gas company. The floors, ceilings, and walls on the second floor were loose and unstable, springy, unsafe, and appeared to have considerable dry rot. The access to the fire escapes appeared unsafe. In the upstairs kitchen, the floor covering had curled, and the sub-floor was rotted, apparently due to water. The bathroom floors were weak, and one bathroom had no hot water. Throughout the building, it appeared to Mr. Dickson that there was termite infestation, although he readily admits he is not an expert in that area. These discrepancies had not been cited previously by Mr. Dickson because on a prior inspection, Temple officials had indicated they had a plan to remodel the building, and these defects would be taken care of. In furtherance of that, a building permit had been issued in September, 1981, and some work had been done. New interior doors had been installed on some of the sleeping rooms, and there were some building materials on hand, but the work was progressing slowly, and on this inspection of October 27, 1982, it appeared to have stopped. Mr. Dickson gave a copy of his findings to Mrs. Magwood, an official of Sunlight Temple. Thereafter, on November 18, 1982, Mr. Dickson served a Notice to Show Cause and a Notice of Informal Conference on Mrs. Magwood. This notice was to advise the Temple of an informal conference on the violations listed in the Notice to Show Cause to be held at the Marion County Building on December 7, 1982, at 11:00 a.m. On December 6, 1982, Mr. Dickson went back to the Temple to see what corrective action had been taken. It appeared that none had been taken. Mrs. Magwood was present on this visit and signed a receipt for a copy of the call-back/reinspection report, which reflected that the proposed corrective action had not been taken. Notwithstanding that Mrs. Magwood had said she would see that Reverend Lee, the president of the organization, would get the notice, when the informal hearing was held on December 7, 1982, as scheduled, no one from the Sunlight Temple appeared. Mr. Dickson indicated that on his follow-up visit, he noticed the walls had tracks broken into them which contained electrical wires. Reverend Lee explained, and I so find, that these tracks, which did not appear as a discrepancy on the October 27, 1982, report, were made to insert electrical wiring in an attempt to correct the previous deficiency regarding extension cords. Reverend Lee, who has been president of the Respondent organization since July, 1982, was not aware of many of these complaints being filed. Notwithstanding the promise of Mrs. Magwood to get the notice of the December 7 hearing to him, he did not learn of it until December 12, 1982, when the hearing was already over. It has not been the intention of the Respondent society to operate a lodging house or restaurant. The Sunlight Pall Bearers Charitable Society and its Auxiliaries, Inc., operated the building as its headquarters and meeting hall; and the sleeping rooms on the second floor were intended to provide accommodations to visiting members from out-of-town severe, they decided to provide rooms to migrant workers on a charity basis. At the present time, some rooms are rented out, but not constantly. It is still intended by the society to be primarily a charitable operation. It has been, for a long time, the concern of the society to make all necessary repairs to the facility, and some repairs were made. However, since it is a charitable society, it has only limited funds to work with and cannot do all that is needed at one time. In July, 1982, when the new governing board came into office, they decided to borrow the necessary funds and have all the work done by a contractor. Arrangements were made and a loan approved by a lending institution in late January, 1983, conditioned upon the personal signatures of Reverend Lee, Mr. Johnson, and Mr. Taylor. However, before the loan could be consummated, because of their disagreement with certain aspects of the Temple operation, Mr. Johnson and Mr. Taylor withdrew their commitment to borrow the funds. On February 12, 1983, the building committee of the Temple met and decided to submit an appeal to other lodges for the borrowing of funds with which to finish what corrective work was needed. The society intends to do all it can to make the required corrections. There is a substantial amount of love and commitment by the members involved, and they want to keep the operation going. Though some work has been done, the majority of the work identified by Mr. Dickson, Mr. Saunders, and Capt. McLemore still remains unaccomplished.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license to operate a public lodging facility be suspended until such time as Respondent's facility can meet required health and sanitation standards. RECOMMENDED this 15th day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1983. COPIES FURNISHED: Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Reverend George W. Lee President Sunlight Temple, Inc. 515 N.W. Sixth Terrace Ocala, Florida 32675 Mr. Sherman S. Winn Director, Division of Hotels `and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 * NOTE: DEFICIENCIES listed on pages 3-5 of the original Recommended Order are not a part of this ACCESS document, they are available for review from the Division's Clerk's Office.
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2014.
The Issue Whether Respondent, 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 Whether Respondent committed the violations alleged in the Petitioners' Public Accommodations Complaint of Discrimination and, if so, what relief should the Florida Commission on Human Relations grant.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Julie Fioravanti (Mrs. Fioravanti) and Alexander Fioravanti (Mr. Fioravanti) have been married for 18 years. They have three children (two sons and a daughter): Nicholas, who is 15 years of age; Stephanie, who is 11 years of age; and Matthew, who is eight years of age. The family resides in Penfield, New York. Nicholas "carries the diagnosis of Infantile Cerebral Palsy/Feeding/Swallowing Disorder, and Developmental Disabilities" and "requires total assistance from his caregivers for all his activities of daily living," including drinking and eating. Unable to walk unassisted, he "[u]ses a wheelchair [propelled by others], primarily, for his transportation." While he is barely able to speak or to otherwise express himself, he "fully understands and hears what's going on around him." Nicholas is unable to drink out of a regular cup or glass, with or without a straw. His parents have to use a "toddler sippy cup" to administer liquids to him. "The majority of the time, [they] just . . . shake the liquid into his mouth and then he swallows it." Eating is also a struggle for Nicholas. Instead of "chew[ing] with his teeth," which he is unable to do, he "uses his tongue, primarily, to mash the food on the roof of his mouth" so that he will be able to swallow it. Consequently, the foods he eats "have to be [of] a soft consistency." His parents often, using a food processor, purée his food for him, but there are a variety of food items that he is able to eat without their being puréed, including peanut butter and jelly sandwiches, macaroni and cheese, and "stuffed French toast," which are "his three favorite foods." Virtually every school day, his parents send him to school with a peanut butter and jelly sandwich to eat for lunch (along with applesauce and chocolate pudding). Nicholas eats out at restaurants with his family. On these occasions, his parents feed him items that are on the menu, including sweet potatoes, pork, macaroni and cheese, fettuccini Alfredo, and chicken. They do not take a food processor with them. When necessary, they "use a fork to cut everything up into fine small pieces." In addition to his other difficulties, Nicholas has a "sleep disorder." By the end of the day, his muscles become "very tight," and he will have difficulty falling asleep without assistance. His pediatrician has prescribed medication for him to take to help him fall asleep, with instructions that he take it "at the hour of sleep which has to be timed appropriately with his meals." "It takes approximately an hour for th[e] medication to begin to take effect," making him "more relaxed and calm" than he would otherwise be, but not causing him to "pass out and go to sleep." Although Nicholas must take his medication with dinner, he is not required, for any medical reason, to eat dinner or to go to bed at any particular time. His parents, however, have attempted to establish routines for him, including feeding him at the same time each day, because "that's what's worked best for [them] in taking care of him." They feed him dinner at around 6:00 p.m. If he is not fed at the usual time, Nicholas will sometimes become restless and start crying. On weekends, although he still eats dinner at around 6:00 p.m., he sometimes stays up later than he does during the rest of the week. There are times that he will watch television until 11:00 p.m. Respondent operates a fleet of cruise ships. The M/S Inspiration (Inspiration) is one of the ships in its fleet. It sails out of Tampa. Among the cruises that Respondent offers on the Inspiration is a five-day cruise to the Western Caribbean, with stops in Grand Cayman, Cayman Islands, and then Cozumel, Mexico. Nicholas, his parents, his siblings, and his grandparents (his father's mother and father) went on such a five-day cruise on the Inspiration in early 2005, departing Tampa on January 31, 2005. The total amount the entire family spent on this vacation was $4,272.11, including $2,833.31 for the cruise itself, $1,038.80 for air fare to and from Tampa, and $400.00 for ground transportation and meals. Mrs. Fioravanti made the reservations for the cruise, reserving two cabins for the family. The trip was "planned as a surprise" for Mr. Fioravanti for his 40th birthday. Mrs. Fioravanti initiated the reservation process by telephoning Respondent's "main number" approximately three weeks before the cruise was scheduled to depart. Mrs. Fioravanti's "local travel agent," Judy Day of Just Cruises, ultimately "took over the remainder of the booking of the cruise," "handling the final arrangements." Mrs. Fioravanti told Ms. Day that the family "required an early dinner seating because [it] was traveling with Nic[holas]." In Mrs. Fioravanti's presence, Ms. Day telephoned Respondent and asked the agent to whom she was speaking about an early dinner seating for the Fioravantis. Ms. Day "was not on a speakerphone," so Mrs. Fioravanti "could only hear [Ms.] Day's [end of the] conversation." "When [Ms. Day] hung up," Mrs. Fioravanti asked her if an "early dinner seating [was] going to be a problem." Ms. Day responded that "it should not be," but if a "problem" did arise on board the ship, Mrs Fioravanti could "go to the purser's desk and let them know [she] had requested an early dinner seating and they [could] handle any changes that need[ed] to be made." Ms. Day had Mrs. Fioravanti fill out and sign a Special Requirements Information form that Respondent uses to obtain information from passengers with disabilities. The form contained the following introductory statement: Carnival Cruise Lines will seek, to the extent feasible, to accommodate the needs of all guests so they can enjoy our ships and other facilities. In limited situations where an individual with a disability would be unable to satisfy certain safety criteria even when provided with appropriate auxiliary aids and services, we will not permit the person to travel unless he or she can make alternative arrangements that would enable hi[m] or her to meet such criteria. The following information is necessary so that we are fully aware of any special medical, physical or other requirements you may have. In the space on the form where Respondent asked the passenger to "[p]lease describe any special medical, physical, or other requirements you may have," Mrs. Fioravanti wrote the following: Nick has cerebral palsy - traveling with a non-collapsable manual wheelchair. Requires accessible cabin. We will be bringing portable food processor for any special meal requirements. Mrs. Fioravanti provided no further information in this space, nor did she "attach an additional page" to add to what she had written. After completing the form, Mrs. Fioravanti signed and dated it (January 6, 2005). When the Fioravanti family boarded the Inspiration on January 31, 2005, they learned that they were scheduled for the 8:00 p.m. dinner seating at Table 224 in the Carnivale Dining Room (Carnivale). The Carnivale was one of two main formal dining rooms on the ship. It had two dinner seatings, the one the Fioravantis were assigned and an earlier one, which was at or around the time Nicholas usually ate dinner at home. In accordance with the instructions she had been given by Ms. Day prior to boarding, Mrs. Fioravanti went to the purser's desk to ask if the family could be reassigned an early dinner seating. At the purser's desk, Mrs. Fioravanti was told she needed to see the maitre d' because he was responsible for handling all such requests. Later that day, Mr. Fioravanti went to the maitre d's "station" to speak to the maitre d' about "mov[ing] [the family's] dining time slot." There were "close to 20 [other] people in the line" waiting to speak to the maitre d'. In asking the maitre d' for an "earlier time slot," Mr. Fioravanti mentioned that he was traveling with three children, all of whom were "on a schedule" and one of whom, Nicholas, was in a wheelchair and "had to take his medicine with food." The maitre d' "took down the information," and he told Mr. Fioravanti that he would "see if he could accommodate [the family]," but added that there were "a lot of people that wanted to change their time slots." It was Respondent's policy to give priority to change of seating requests made for "medical reasons" over other change of seating requests and to grant them, if and when possible. After Mr. Fioravanti told her about his discussion with the maitre d', Mrs. Fioravanti went to speak to the maitre d' herself to ask for an earlier dinner seating. She told the maitre d' that her family was "traveling with [her] son who was in a wheelchair and required an earlier dinner seating for medical reasons." The maitre d' responded that her husband had already "given him all that information" and that he would get back with the family to "let [it] know if [an earlier seating] was possible." Not having heard back from the maitre d', the family went to their assigned table in the Carnivale to eat dinner at 8:00 p.m. that evening. Nicholas had already eaten in the cabin at around 6:00 p.m. His parents had fed him a peanut butter and jelly sandwich that they had ordered from room service. He had taken his medication along with his meal. Richard Catalan, who is from the Philippines, was the Fioravantis' waiter on this evening, as well as on the third evening of the cruise, the only other time that the Fioravantis ate dinner in the Carnivale. Mrs. Fioravanti brought a portable food processor with her so that she could, if she needed to, purée food for Nicholas. Mrs. Fioravanti asked Mr. Catalan if there was anywhere in the dining room she could plug in the food processor. Mr. Catalan responded that there was an outlet at the waiters' "service station" next to the Fioravantis' table, but it was a 220-volt outlet. Mrs. Fioravanti then asked Mr. Catalan if she could take food from the Carnivale back to her room to "grind" with the food processor. In response to this inquiry, Mr. Catalan told Mrs. Fioravanti that "no food could leave the dining room."4 Mr. Fioravanti joined the conversation and inquired whether the food processor could be brought to the kitchen and used there. Mr. Catalan answered that "there was no place for that to be done." Although the kitchen is equipped with its own food processor that the kitchen staff uses to, among other things, "blend the food" of passengers who request that their food be prepared in that manner, Mr. Catalan did not advise Mr. and Mrs. Fioravanti of the availability of this option. Following their discussion with Mr. Catalan regarding the use of their food processor, Mr. and Mrs. Fioravanti did not, at any time during the cruise, pursue the matter further with the maitre d' or any other staff member on board the ship, nor did they bring up the matter again with Mr. Catalan. Instead, they made their own "accommodations for [Nicholas'] food." Mr. and Mrs. Fioravanti, however, did further pursue their request for an early dinner seating. On the morning of the second day of the cruise, they both went, separately, to see the maitre d' to check on the status of their request and reiterate what they had told the maitre d' the day before regarding why they were making the request. The maitre d' told them both that their request was still pending. In his conversation with Mrs. Fioravanti, the maitre d' "indicated that other people had booked their cruise[s] a year in advance" and he "couldn't just ask [these] people to switch tables with [the Fioravantis] because [the Fioravantis] wanted an earlier dinner seating." He did add, though, that if a change could be made, he would let the family know. The maitre d' did not get back to the Fioravantis that day. The second night was the "formal night of the cruise," and passengers who ate dinner in the two main formal dining rooms were expected to dress appropriately. The Fioravantis did not want to get "dressed up," so, rather than eating in the Carnivale that evening, they opted instead to eat dinner on the Lido deck, which offered informal buffet dining with passengers' being able to eat when and where they pleased. Mr. and Mrs. Fioravanti fed Nicholas a peanut butter and jelly sandwich ordered from room service (along with applesauce and pudding they had brought from home) before the entire family went to the Lido deck to dine. While the rest of the family ate their dinners, Nicholas ate ice cream that came from a nearby "soft serve ice cream machine." Neither on this occasion, nor any other occasion that the family ate on the Lido deck, did Mr. or Mrs. Fioravanti use, or ask permission to use, a food processor. After they were finished eating, Mr. and Mrs. Fioravanti took Nicholas and his sister and brother "to see the show that night." Mrs. Fioravanti and Nicholas left the show after about ten minutes. On the morning of the third day of the cruise, Mr. and Mrs. Fioravanti found the following note taped to their cabin door: Dear Guest: We sincerely regret not being able to assist you with your dining request. This is primarily due to the high guest count and unusual[ly] high demand to change seating. However, if there is anything I can do to assist you otherwise then please do not hesitate to contact me. Thank you for your understanding. Maitre D' That evening (when the ship was en route from Grand Cayman5 to Cozumel), the Fioravantis returned to their assigned table (Table 224) in the Carnivale for the 8:00 p.m. dinner seating. Nicholas was fed a peanut butter and jelly sandwich and given his medication before the family went to the dining room. As the family dined, Nicholas sat in his wheelchair at the end of Table 224, facing in the general direction of Table 226. Mrs. Fioravanti gave Nicholas some food to taste. To amuse himself, Nicholas watched the waiters go in and out of the kitchen through the revolving door. Mr. Catalan was the waiter for the Fioravantis' table, as well as Table 226, that evening. When he brought the main course to Table 226, the passengers at the table stood up to leave. Mr. Catalan asked them what was wrong. They responded that there was nothing wrong with the food or service, but that they had "lost their appetite looking at Nicholas" eat. They asked Mr. Catalan if, the next time, Nicholas' wheelchair could be "turn[ed] . . . around" so that he would not be facing them. Mr. Catalan told them that he would inform the Fioravantis of their request. After these passengers left the dining room, Mr. Catalan approached Mrs. Fioravanti and asked her if she and her family "would be joining him in the dining room the next evening for the later dinner seating." Mrs. Fioravanti responded in the affirmative, following which Mr. Catalan, who does not speak English particularly well, ill-advisedly asked her "if it would okay the following evening, when [the Fioravantis] came to the dining room," for Nicholas' wheelchair to be placed in a different position. Mr. Catalan "gestured with his hand" to indicate where he was suggesting that the wheelchair be positioned the following evening. It was his intention to inquire if the Fioravantis would mind simply turning around Nicholas' wheelchair the following evening so he would not be facing Table 226. The Fioravantis, however, understood Mr. Catalan to be asking for permission to move Nicholas away from the Fioravantis' table and behind a wall in the waiters' "service station" next to the table. Mrs. Fioravanti asked why Mr. Catalan was making this request, to which Mr. Catalan insensitively responded that the passengers at Table 226 had left before eating dinner "because they did not want to look at [her] son." Mrs. Fioravanti became visibly upset and indicated that "under no circumstances" would she move Nicholas. Realizing that he had upset Mrs. Fioravanti with what he had said (which is something that he had not intended to do), Mr. Catalan told Mrs. Fioravanti, "I'm sorry if I say something wrong and this is from the other guest, not on my part." Mrs. Fioravanti did not accept Mr. Catalan's apology. She got up and left the Carnivale, taking Nicholas with her. The rest of family left a short time thereafter. Mr. Catalan reported the incident to his supervisor, who reprimanded Mr. Catalan for having suggested that Nicholas be moved. Later that evening, Mrs. Fioravanti complained about the incident to the purser staff, who "kept apologizing" to her for Mr. Catalan's conduct that evening. In making her complaint, Mrs. Fioravanti also mentioned to the purser staff that her family was still waiting to receive the early dinner seating it had requested. After checking with the maitre d', the purser staff informed Mrs. Fioravanti that there would be a table for the family at the early dinner seating the following day. In addition, the purser staff gave the family, "for [its] inconvenience," "seven complementary tickets [for] an excursion tour" in Cozumel the next day. On the fourth day of the cruise, the family went on this "excursion tour" in Cozumel, using the free tickets provided by the purser staff. After returning to the ship that day, Mrs. Fioravanti received a "follow-up phone call" from the purser staff, who asked her if the family had enjoyed the shore excursion and reminded her that the maitre d' had made arrangements for the family "to attend the earl[y] dinner seating if [it] had wanted to do so." The family chose to eat dinner on the Lido deck that evening. As the family was dining, the maitre d' walked up to Mrs. Fioravanti and said, "We missed you tonight at the earl[y] dinner seating." He then went on to apologize for "the events that [had] tak[en] place in the dining room the night before." He told Mrs. Fioravanti that these "matters were being addressed" and "extended an invitation" for the family to join him the following evening at the early dinner seating. The invitation was declined. Following the cruise, Mrs. Fioravanti wrote Respondent a letter, "indicating [her] dissatisfaction with the cruise and requesting a full refund for the trip." After negotiating with Respondent over the telephone, Mrs. Fioravanti received a check in the mail from Respondent for $1,000.00. Since this was less than the amount she was seeking from Respondent, she did not cash the check.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing the Fioravantis' Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 7th day of December, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2006.
The Issue Whether Respondent is liable to Petitioner for public accommodation discrimination based on Petitioner’s handicap, in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner, Eric Wendell Holloman, is a 60-year-old man who resides in Jacksonville, Florida, and has been diagnosed with arthritis, diabetes, and high blood pressure. Respondent, Lee Wesley Restaurants, LLC, is the owner and operator of the Burger King restaurant located at 210 East State Street in Jacksonville, Florida. The corporate headquarters are located at 6817 Southpoint Parkway, Suite 2101, Jacksonville, Florida 32216. At all times relevant hereto, Respondent employed more than 15 employees. Petitioner has a driver’s license, but he asserted that he does not know how to drive a car. Petitioner’s primary method of transportation is his bicycle. Petitioner eats at a number of fast-food restaurants in the area of State Street in Jacksonville. Petitioner testified that he can’t cook because he doesn’t have a wife. Petitioner administers his own insulin to treat his diabetes and takes medication for high blood pressure. Petitioner uses a walking cane which was provided to him by the local Veteran’s Administration where he receives medical care. Petitioner’s cane is metal with four “legs” extending outward from the bottom of the upright metal post. Each leg is capped with a rubber “foot.” The cane will stand up on its own when not in use. Petitioner recounts the following events in support of his claim of public accommodation discrimination: On June 4, 2013, Petitioner entered the Burger King in question, ordered a meal with a drink, and took it to a table in the dining area where he proceeded to eat. At some point while he was dining, Petitioner accidentally knocked over his drink with his cane, which he testified was on the table with his food. Petitioner testified that no employee of the restaurant spoke to Petitioner about the spill, offered to help him clean it up, or otherwise acknowledged that he spilled his drink. Petitioner did not clean up the spill either. Petitioner helped himself to a drink refill and left the restaurant without incident. The following day, June 5, 2013, he entered the same restaurant and attempted to order a meal. According to Petitioner, he was told by an employee that he must leave and he would not be served at that restaurant. Petitioner identified Randall Gibson, the man seated with Respondent’s Qualified Representative at the final hearing, as the employee that asked him to leave the restaurant on June 5, 2013. Petitioner exited the restaurant via the rear door, which he testified was close to the flag pole where he had parked his bicycle. According to Petitioner, two Burger King employees followed him outside and threatened him with “bodily harm” if he returned to the restaurant. Petitioner was clearly upset with Mr. Gibson and other employees of the Burger King. Petitioner explained that on June 4, 2013, when Petitioner ordered his food at the counter, Mr. Gibson and a female employee were engaged in behavior he found offensive. Specifically, Petitioner testified that Mr. Gibson was “up behind” the female employee engaging in hip and pelvic gyrations. Petitioner twice stood up from his chair and demonstrated the hip and pelvic gyrations to the undersigned. Petitioner testified that he has at least 50 cases pending in state and federal courts alleging civil rights violations. The final hearing was one and one-half hours in duration. Only a small portion of the hearing time was devoted to presentation of evidence relevant to Petitioner’s claim of discrimination based on a disability. During his testimony, Petitioner often strayed into lengthy tirades against racial discrimination, quoting from the United States Constitution, as well as the writings of Dr. Martin Luther King, Jr., and other leaders of the Civil Rights Movement. The undersigned had to frequently reign in Petitioner’s testimony to relevant events.
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 dismissing the Petition for Relief filed by Eric Wendell Holloman in FCHR No. 2013-02160. DONE AND ENTERED this 28th day of July, 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 July, 2014.
