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 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 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 Pursuant to section 760.08, Florida Statutes (2015), the issue is whether, in the furnishing of public accommodations, Respondent is guilty of discrimination against Petitioner on the grounds of race, color, and national origin by prohibiting Petitioner from re-entering the business premises of Respondent due to Petitioner's sexual harassment of Respondent's employees.
Findings Of Fact Petitioner moved to the United States nine years ago from Maracaibo, Venezuela. Petitioner is Hispanic, speaks English with a Spanish accent, and is dark-complected. Pepito's Plaza is a small retail complex in Doral, Florida, comprising a gas station/convenience store and three small restaurants. Respondent owns and operates the gas station/convenience store. The business owners, employees, and customers of Pepito's Plaza are nearly entirely Hispanic. Like Petitioner, the business owners are also from Venezuela. For three years, Petitioner has delivered food for a restaurant located near Pepito's Plaza. Petitioner has sometimes purchased items for delivery from the convenience store or the three restaurants. Petitioner's initial contact with employees of the convenience store and restaurants was unremarkable. He impressed a clerk of the convenience store, Ms. Maria Gabriela Villarroel, as a kind and educated gentleman. During one visit to the convenience store, Petitioner noticed that Ms. Villarroel had displayed on the counter a set of her business cards, which announced an Herbalife® business that she operated on the side. Petitioner took a card and, using the personal phone number of Ms. Villarroel shown on the card, later purchased Herbalife® products from her. In February or March 2015, Petitioner used Ms. Villarroel's phone number to text and call her repeatedly to ask her out on a date and make advances. Ms. Villarroel never consented to go on a date with Petitioner, did nothing to encourage this behavior, and stated that she did not welcome his advances, culminating with a complaint in April 2015 that she felt stalked and harassed by Petitioner's obsessive behaviors. Nevertheless, Petitioner persisted in these behaviors. Not only did Petitioner persist in these behaviors with Ms. Villarroel, but, early in the summer of 2015, Petitioner began harassing Amalia Almedia, a female employee of Pepito's Arepas Bar, which was one of the restaurants in the complex. Visiting the restaurant several times daily, Petitioner rarely purchased anything, but instead talked to Amalia Almedia and other female employees. Soon, Petitioner was blowing kisses at Ms. Villarroel and Ms. Almedia, winking at them, and making sexual facial expressions at them. Petitioner loitered by the window of the restaurant, occasionally leaning in to stare at Ms. Almedia's body. Unable to deal with the problem themselves, Ms. Villarroel and Ms. Almedia complained to the manager of Pepito's Plaza, Luis Martinez, who did not immediately talk to Petitioner. However, in late June or early July, Petitioner visited Arepas Bar and offered a plastic shopping bag to Ms. Almedia, who declined the offer. Petitioner then left the bag on the counter and left. Ms. Almedia summoned Mr. Martinez, who inspected the bag and found that it contained two pair of new women's' colored panties. Mr. Martinez noticed that a police officer happened to be at the plaza, so he asked the officer to join Mr. Martinez in approaching Petitioner and ordering him not to return to Pepito's Plaza due to his harassment of female employees. Accompanied by the officer, Mr. Martinez found Petitioner on the plaza premises and told him that he had been harassing the female staff for some time, and he was no longer welcome anywhere at Pepito's Plaza. Petitioner attempts to provide context in two respects: first, he claims that he was the subject of dismissive comments from the female employees of Pepito's Plaza. Because Petitioner does not acknowledge that his coarse, repeated behaviors toward these employees constituted harassment, he is, of course, unable to frame the issue as dismissive comments from the female staff whom he was sexually harassing. There is no evidence that female staff initiated any disrespectful behavior toward him prior to the harassment, nor is there any evidence that the dismissive comments were indicative of anything more than an honest attempt by these beleaguered women to get Petitioner to stop harassing them as they attempted to perform their employment duties within fairly constrained areas that left them continuously vulnerable to Petitioner's stalking of them. Petitioner's second point is that he was entitled to a warning before being barred from Pepito's Plaza. To require a warning from a manager is to discredit the attempts by the female staff themselves to stop the harassment. Petitioner was fully aware that his sexual banter and advances produced feelings of annoyance, repulsion, and even safety concerns. On these facts, the absence of a prior warning from Mr. Martinez no more supports an inference of discrimination than does his order that Petitioner no longer enter the premises of Pepito's Plaza.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on January 28, 2016. DONE AND ENTERED this 27th day of October, 2016, in Tallahassee, Leon County, Florida. S Robert E. Meale 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 27th day of October, 2016. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Carlos E. Burgos Pepito's Plaza 10701 Northwest 58th Street Doral, Florida 33178 (eServed) Benjamin Korn, Esquire The Law Offices of Benjamin Korn, PLLC 444 Brickell Avenue, Suite 51-332 Miami, Florida 33131 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Petitioner has been the subject of discrimination in a public accommodation due to a disability.
Findings Of Fact Petitioner, Cari Anderson, is a veteran of the Iraq War and has Post Traumatic Stress Disorder (PTSD). Her PTSD is sufficiently severe so as to constitute a disability under Florida law. Because of her disability, Petitioner keeps with her two small poodle-type service dogs that help her remain calm. Petitioner also trains such service dogs. On April 5, 2009, Petitioner was visiting her friend, Michelle Clas-Williams, at her home in Panama City, Florida. During her visit at around 2:00 in the morning, Petitioner, along with her friend, and her friend’s daughter, decided to go shopping at the Wal-Mart store in Callaway, Florida. Petitioner brought along her two service animals to the Callaway Wal-Mart. Neither of the dogs wore any identification as service dogs; and therefore, could not be readily identified as such. Upon arrival, Petitioner and her friend obtained separate shopping carts. Petitioner placed her two dogs on the bottom of the shopping cart, on a towel. Petitioner and her shopping companions entered the main part of the store. No one from Wal-Mart stopped Petitioner from entering the store. Both she and her friend spent the next 20- 30 minutes shopping throughout the Callaway Wal-Mart store where surveillance cameras intermittently monitored their passage through the store. None of the surveillance footage has sound. As a consequence, the surveillance footage of Petitioner’s visit does not add support for either party’s version of the events in this case. During her time in the store, Petitioner walked freely throughout the aisles and was not prevented from shopping at the Callaway store. On at least two separate occasions, individual employees politely informed Petitioner that she could not have her dogs in the store. However, on each such occasion Petitioner explained to the employee that her dogs were service animals. The employees responded positively and Petitioner continued her shopping. There was no evidence that these employees communicated with Wal-Mart management. As Petitioner and her friend approached the checkout lines, the Customer Service Manager, Monica Amis, noticed Petitioner’s two dogs in her shopping cart. Ms. Amis walked up to Petitioner and said, “Ma’am those dogs cannot be in the store.” Before Ms. Amis could ask anything else, including whether the dogs were service animals, Petitioner erupted into a loud vocal tirade stating among other things, “You don’t tell me what the fuck to do. I can do what I want. I’m sick of Wal- Mart’s shit you think you own the world.” Ms. Amis could not get a word in and could not calm Petitioner down. Petitioner demanded the store manager be called and demanded that some papers which “proved” her dogs were service animals be looked at. Within minutes of first approaching Petitioner, Ms. Amis instructed the cashier to process Petitioner’s purchases. She then walked away and called the store manager. The better evidence did not demonstrate that Ms. Amis was rude or profane with Petitioner. The evidence did demonstrate that Ms. Amis’ actions in approaching and interacting with Petitioner were clearly reasonable and did not constitute discrimination against Petitioner. Shortly after Ms. Amis’ call, the store manager, Gary Wright, approached the front of the store. He could hear Petitioner yelling. He was very concerned about her behavior and the disturbance she was making. He approached her at the cash register. Mr. Wright asked Petitioner to calm down so he could speak with her. As she was paying for her items, Petitioner continued to yell loudly and use profanity. She was permitted to complete her transaction and no one from Wal-Mart interfered with her ability to do so. However, Petitioner remained belligerent, loud, and profane. Petitioner believed that her rights were being violated and that Ms. Amis and the manager could not tell her that her dogs could not accompany her in the store and if they inquired about them, they could only ask one specific question about whether her dogs were service dogs under an alleged agreement Wal-Mart recently entered into with the federal government. Petitioner’s beliefs about the meaning and scope of this alleged agreement, which was not introduced into evidence, is simply misplaced and does not establish any of the actions by either Ms. Amis or Mr. Wright as discriminatory acts. Like Ms. Amis, Mr. Wright could not get a word in. He understandably became exasperated with Petitioner and the conversation devolved with Mr. Wright telling Petitioner on at least two occasions to “shut up” and “shut the fuck up.” He also told her that he did not think poodles were service animals, but old-lady dogs. In the meantime, Petitioner was yelling about her papers and that Mr. Wright needed to look at them. Mr. Wright simply wanted Petitioner to leave the store. He also told her that he had no problems with the service dogs being in the store, but if she did not calm down, he would have to call the Bay County Sherriff’s office. Given Petitioner’s loud and irrational behavior it was reasonable for Mr. Wright to ask Petitioner to leave the store. When Mr. Wright informed Petitioner that he was calling the Sheriff’s office, Petitioner stated that she was glad they were coming. She wanted their assistance. Mr. Wright walked away and called the Sheriff’s office. There was no evidence that Mr. Wright made a false report to the Sheriff’s office. Additionally, Petitioner called 911 to confirm that an officer was en-route. Likewise, given Petitioner’s continued behavior and her assent to the call, it was reasonable for Mr. Wright to call the Sheriff’s office. Notably, the entire interaction between Petitioner, Ms. Amis, and Mr. Wright took less than 10 minutes. After completing her purchase, Petitioner remained at the checkout lane while her friend, who was in another checkout lane, paid for her merchandise. Petitioner continued yelling, using profanity, and causing a disturbance. Then Deputy, now Investigator, VanStrander arrived outside of Wal-Mart’s east entrance doors and was met by Mr. Wright. Mr. Wright informed Investigator VanStrander that Petitioner was making a scene and being very loud and disruptive. Indeed, Investigator VanStrander could hear Petitioner yelling while he was outside the store and she was inside the store. Mr. Wright did not ask the officer to arrest Petitioner. Once both Petitioner and her friend had completed their purchases, they began walking toward the exit, with Petitioner continuing to yell. Investigator VanStrander entered the store and was immediately approached by Petitioner who was screaming and “cussing like a sailor.” Investigator VanStrander instructed Petitioner that she needed to leave the store. He also informed her that she would be arrested if she did not comply. Petitioner did not immediately follow his instructions. Instead she attempted to argue her position and show the officer her papers. He again instructed her to leave and motioned to the door. He did not block the doorway as Petitioner claimed that he did. She again did not immediately comply and within seconds the officer arrested Petitioner. With little to no struggle she was handcuffed, placed into custody, and charged with disorderly conduct and resisting an officer without violence. Petitioner’s interaction with the deputy while in the store lasted less than 5 minutes. Importantly, the evidence clearly demonstrated that the decision to arrest Petitioner was made by Investigator VanStrander. Respondent was not responsible for the actions of the officer or for Petitioner's behavior which led to her arrest. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of November, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amy Harrison Turci, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cari Anderson Post Office Box 371792 Las Vegas, Nevada 89137 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to make an appearance at hearing.
Findings Of Fact On January 7, 2011, the undersigned issued the Initial Order in this case. Petitioner and Respondent responded to the Initial Order. On February 10, 2011, the undersigned issued a Notice of Hearing, scheduling the hearing for March 28, 2011. The Notice of Hearing was not returned as undeliverable to Petitioner. Indeed, Petitioner wrote and filed several letters regarding her upcoming hearing and case in general. On March 18, 2011, the hearing was convened as scheduled. After waiting 15 minutes, Petitioner did not appear at the hearing and did not contact the undersigned’s office regarding any problem with commencing the hearing as scheduled. Accordingly, no evidence to support Petitioner’s allegations was introduced at the hearing. Given this lack of evidence, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 15th day of April, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGR 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 15th day of April, 2011. COPIES FURNISHED: Gayle Wilburn 1006 East Johnson Avenue, #4 Pensacola, Florida 32514 Robert E. Larkin, Esquire Allen Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 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
