The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Agriculture and Consumer Services (Department), is a state agency charged with the duty and responsibility of regulating, permitting, and inspecting amusement rides, pursuant to the laws of the State of Florida, in particular, Section 616.242, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Dodge City Kiddie and Pony Rides, Inc., is a Florida corporation, with its principal place of business at 16330 Southwest 147th Avenue, Miami, Dade County, Florida. Respondent owns, operates, and rents temporary amusement rides which are subject to inspection, testing, and permitting by the Department, pursuant to Section 616.242, Florida Statutes. These amusement rides, consisting primarily of small "kiddie" rides and attractions, are principally provided for private events, such as birthday parties and company picnics, which are not open to the general public. Occasionally, however, Respondent provides amusement rides for events that are open to the public. Industry regulation/safety standards for amusement rides Section 616.242, Florida Statutes, establishes the inspection and permitting requirements for operation of temporary amusement rides in the state. Subsection 616.242(3), provides the following useful definitions: "Amusement ride" means any building, structure, or mechanical device or combination thereof through which a patron moves, walks, or is carried or conveyed on, along, around, over, or through a fixed or restricted course or within a defined area for the purpose of giving its patrons amusement, pleasure, thrills, or excitement. * * * "Kiddie ride" means an amusement ride designed primarily for use by patrons up to 12 years of age. "Kiddie train" means a train designed as a kiddie ride which is operated on a flat surface or flat track, carries no more than 14 patrons, and does not exceed a speed of 3 miles per hour. * * * (o) "Private event" means an event that is not open to the general public and where no admission is charged. * * * (s) "Temporary amusement ride" means an amusement ride that is regularly relocated, with or without disassembly. Pertinent to this case, operation of any temporary amusement ride in this state without an "inspection certificate," which indicates that the amusement ride has undergone and passed the inspection required after setup, is prohibited unless the amusement ride is exempted. Section 616.242(7)(a), Florida Statutes. Exemption from the inspection required after setup is as follows: . . . each temporary amusement ride must be inspected by the department in accordance with subsection (11), and must receive an inspection certificate each time the ride is setup or moved to a new location in this state unless the temporary amusement ride is: Used at a private event; Used at a public event when there are no more than three amusement rides at the event, and the capacity of each amusement ride at the event does not exceed eight persons; * * * A kiddie train used at a public event if there are no more than three amusement rides at the event. Section 616.242(7)(a), Florida Statutes. Also exempted from the permitting and inspection requirements of Section 616.242, are the following amusement devices: . . . inflatable rides . . . ball crawls * * * 7. Nonmotorized playground equipment that is not required to have a manager. Section 616.242(10)(a), Florida Statutes. The Calle Ocho Festival (DOAH Case No. 99-1913) On Sunday, March 14, 1999, at the Calle Ocho (Eighth Street) Festival, a public event sponsored by the Kiwanis Club of Little Havana in Miami, Florida, Respondent operated four temporary amusement rides: a Little (Kiddie) Ferris Wheel, with a capacity of up to 10 persons (children); a Castlemania, with a capacity in excess of 8 persons; a Circus Merry-Go-Round, with a capacity of up to 8 persons; and a Dinomania, with a capacity in excess of 8 persons. Although each amusement ride had a current annual permit, Respondent had not requested or received an inspection by the Department prior to operation and the rides had not received an inspection certificate. Regarding such failing, Respondent contends that the Castlemania and Dinomania (essentially identical amusement devices), are playhouses that contain two slides (tubes), a ball crawl and a rope climb, and are, as a "ball crawl" or "nonmotorized playgound equipment that is not required to have a manager," exempt from the permitting and inspections of Section 616.242, Florida Statutes. See Section 616.242(10)(2)(5), and (7), Florida Statutes. Consequently, Respondent asserts, it was not required to have a setup inspection or certificate for the Calle Ocho Festival because "there were no more than three amusement rides at the event [regulated by the Department] and the capacity of each amusement ride at the event . . . [did] not exceed eight persons." Here, Respondent has offered compelling proof, and the Department has offered none to the contrary, that the Castlemania and Dinomania contain only a "ball crawl" and other "nonmotorized playgound equipment". Consequently, Respondent has demonstrated that such equipment was exempt from the permitting and inspection requirements of Section 616.242, Florida Statutes, and that (exempting those rides) it did not have in excess of three amusement rides at the event. 3/ Notwithstanding, since the capacity of the Little Ferris Wheel exceeded eight persons, Respondent was not exempted from the setup inspection or certificate requirements of Section 616.242(7), Florida Statutes, with regard to the Little Ferris Wheel and the Circus Merry-Go-Round. The Miramar Days Event (DOAH Case No. 99-2647) On Saturday, May 15, 1999, at the Miramar Days Event in Miramar, Florida, Respondent operated seven temporary amusement rides: a Dinomania, a Circus Merry-Go-Round, a Crazy Cars, a Kiddie Train, a Helicopters, a Rock and Roll, and a Giant Slide. Although each ride had a current annual permit, Respondent had not requested or received an inspection by the Department prior to operation and the rides had not received an inspection certificate. Regarding the Miramar Days Event, Respondent concedes it operated the seven temporary amusement devices without a setup inspection or inspection certificate; however, it suggests it was exempt from such requirement because the event was "a private event," as opposed to a "public event." Section 616.242(7)(a)1 and 2, Florida Statutes. Respondent bases such assertion on a conversation its President, Wallace Stevens, had with Gayle Gulotta, the Community Services Supervisor for the City of Miramar, who contracted Respondent's services. 4/ According to Ms. Gulotta, when she discussed the matter with Mr. Stevens, he did inquire as to whether it would be a public or private event, and she told him "it was a private event of the city," but "open to anybody in the city that wanted to participate." (Transcript, pages 65, 66, 70 and 71). Mr. Stevens' recollection was similar: . . . I said . . . is this a public or private event. She said private. I said, in other words somebody in the city of Sunrise . . . really is not supposed to come there. She said, that is right. It is for the people of our city . . . . While Ms. Gulotta may have chosen to describe the Miramar Days Event as a "private event," it should not be subject to serious debate that an event, such as Miramar Days, open to or attended by the people of the community, rather than a private gathering (such as a birthday party or company picnic), is a "public event," 5/ and Mr. Stevens, as an owner and operator of amusement rides, could not have reasonably believed otherwise. Consequently, as a public event, the Circus Merry-Go-Round, Crazy Cars, Kiddie Train, Helicopters, Rock and Roll, and Giant Slide were not exempt for the inspection requirements of Section 616.242(7)(a), Florida Statutes; however, the Dinomania was exempt for reasons heretofore discussed. The Great Sunrise Balloon Race (DOAH Case No. 99-2646) On Saturday, May 29, 1999, at the Great Sunrise Balloon Race in Homestead, Florida, a public event, Respondent operated three temporary amusement rides: a Rock and Roll, capacity 8 persons; a Frolic/Space Orbitor, capacity 8 persons; and a Crazy Cars, capacity 12 persons. 6/ Although each ride had a current annual permit, Respondent had not requested or received an inspection by the Department prior to operation and the rides had not received an inspection certificate. Regarding the Great Sunrise Balloon Race, Respondent contends it was exempt from the requirements for setup inspections and inspection certificates because "Respondent operated only three amusement rides at the event and . . . the capacity of any amusement ride at the event did not exceed eight persons."7 (Respondent's Proposed Recommended Order, paragraph 7(2)). Here, the proof is compelling that the capacity of the Crazy Cars was 12 persons and, consequently, Respondent was not exempted from the inspection requirements of Section 616.242(7)(a), Florida Statutes, with regard to the three temporary amusement rides.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing findings of fact and conclusions of law, and which, for the violations found, imposes an administrative fine in the total sum of $27,500 and suspends the permits for eight of Respondent's amusement rides (the Little Ferris Wheel, the Circus Merry-Go-Round, the Crazy Cars, the Kiddie Train, the Helicopters, the Rock and Roll, the Giant Slide, and the Frolic/Space Orbitor) for one year. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 29th day of February, 2000.
The Issue Whether Respondent committed the violation alleged in Petitioner’s Public Accommodations Complaint of Discrimination filed by Petitioner on September 6, 2007, and if so, what relief should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Jacksonville area. She is married to Wayne Benedict and is the mother of Bryan Benedict. On July 23, 2007, Petitioner went to Wal-Mart to do the family’s grocery shopping. Her son, Bryan, and his friend, Adarious Pickens, also African-American, were with her. When she arrived at Wal-Mart, she proceeded to the deli counter, where she usually begins her shopping trip. On the day in question, the numbering system in the deli was broken. When operating, the numbering system dispenses tickets with numbers on them which determine which customers arrived first and who receives service first. At the time Petitioner approached the deli counter, three Caucasian customers were present and waiting for service. After the three Caucasian customers were served, another Caucasian customer approached the deli counter and was waited upon. Because Petitioner believed that the last Caucasian customer had been served out of turn, Petitioner left the deli area to find a manager. After learning that the manager had gone for the day, she was directed to a person who was “team lead.” She complained to the team lead who apologized to Petitioner. After speaking to the team lead, Petitioner then returned to the deli department and asked one of the deli associates, Jeanne Thornton, to identify the other deli associate. Ms. Thornton identified the other associate as “Trish.” Petitioner again left the deli area. At the time of this incident, Ms. Thornton and Trish were the only two Wal-Mart associates were working at the deli counter. Petitioner acknowledges that the deli appeared to be short-staffed, as she typically sees three or four associates working behind the deli counter. Several minutes later, Petitioner returned to the deli counter and requested service. Prior to this time, Petitioner waited for service, which was not forthcoming, but did not verbally request service. Ms. Thornton then waited on Petitioner, who left the deli area after she was given the food items she requested. Ms. Thornton noticed that Petitioner was angry and upset. The deli counter in question is at least 30 feet long. The deli contains both a cold food section and a hot food section. In addition, there is a lower shelf where items are for sale, which do not require the assistance of deli associates. On any given day, associates are assigned to work in either the hot or cold food sections. At the time Petitioner approached the deli counter, Trish was assigned to the deli’s hot food section, and Ms. Thornton was in the midst of filling a large cold food order. When a deli associate is assigned to cook food in the deli department’s hot food section, it is that person’s responsibility to perform duties related to the hot food. According to Ms. Thornton, “when the food comes up, it has to be temped, logged, and put in the hot bar.” These duties of an associate assigned to the hot food section of the deli take priority over helping customers. If the hot food is not properly temped, logged, and put in the hot bar, the hot food must be thrown away. On those occasions when the numbering system is not working, the deli associates rely on customers to tell them who should be waited on next. This is, in part, because the associates often turn their backs to the customers at the deli counter while they are cutting meat, etc. Food items sold from the deli counter are not intended for on-site consumption. Petitioner did not intend to consume the items purchased from the deli on the premises of Wal-Mart. No employee of Respondent made any racially derogatory or racially related comments to Petitioner. Other than Petitioner’s firm belief that she was overlooked in favor of Caucasian customers, no evidence was presented that the actions of Respondent’s associates were racially motivated.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim of public accommodation discrimination. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. Barbara J. Staros 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 November, 2008.
The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2008. 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 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
The Issue The issue in this case is whether Respondent committed a housing discriminatory practice against Petitioner based on Petitioner’s race and gender, in violation of Section 760.23, Florida Statutes (2008).1
Findings Of Fact Ms. Martindale is an African-American female. Westgate sells timeshare units and vacations. Westgate is the largest privately-owned timeshare developer in the world. It currently has 27 resorts around the United States. There are over 250,000 owners of timeshares sold by Westgate. Westgate has developed a strategy to market its timeshare units. It leases locations in the Orlando area, including space in hotels, and outdoor locations at gas stations and convenience stores. Marketing coordinators are placed in the locations to solicit families and individuals to come and tour Westgate properties in hopes that they will purchase vacations or timeshares. One of the enticements Westgate uses to get people to tour its properties is a free gift, if the potential customer meets certain qualifications. On July 1, 2008, Ms. Martindale was approached by a Westgate marketing coordinator at a convenience store. The marketing coordinator asked to see Ms. Martindale’s driver’s license and a credit card. The marketing coordinator also asked her the amount of her annual income. Ms. Martindale was presented with an invitation by the marketing coordinator, who went over the details of the invitation with Ms. Martindale. The invitation was to be used to secure Ms. Martindale’s admission to a tour of the Westgate resort at Kissimmee, Florida. Ms. Martindale signed the invitation and initialed the invitation acknowledging that she met the qualifications listed in the invitation for a $100 cash gift. The invitation states: Provisions of offer: There is no cost or obligation to purchase anything. No one is excluded from our tour or resort ownership; however, the following requirements must be met in order to receive a gift. After meal, you must attend a 90 minute sales presentation. If married, husband and wife must attend together. If cohabitating, both parties must be present. You must speak fluent English or Spanish. If married, husband or wife must be between the ages of 23-65 with a valid photo I.D. or passport to qualify with a combined gross annual household income of $50,000. Single persons (single constitutes never married, divorced, widowed; single does not constitute separated) must be between the ages of 23-65 with a valid photo I.D. or passport and a $50,000 gross annual income. Florida residents of Brevard, Volusia, Lake, Orange, Polk, or Seminole Counties do not qualify for this offer. Must have spent prior night in a motel, hotel, resort, condo or vacation rental in the Orlando area and are not staying in a campground, driving an R.V. or with family/friends. Subject to the above qualifications, this offer is available to all permanent residents and citizens of the United States. This offer may not be available to citizens and residents of some countries. I/we have confirmed our eligibility for the gift with the Marketing Representative prior to arranging for my/our tour. When Ms. Martindale received the invitation, she understood that she would not receive the free gift if she did not meet the qualifications listed in the invitation. She also understood that she did not have to meet the qualifications in order to take the tour and that she could purchase a timeshare unit without meeting the qualifications. Ms. Martindale took the invitation and went to the Westgate property for a tour and her free gift. At the time that Ms. Martindale signed the invitation and presented herself for the tour and free gift, she was a resident of Orlando, Orange County, Florida. When Ms. Martindale arrived at the Westgate property, she stopped at the tour check-in desk. Again she was asked to present her driver’s license and a major credit card. She was asked the amount of her annual income. The employee at the check-in desk told Ms. Martindale to proceed to the reception area where she would be greeted by another employee and taken on a tour. Ms. Martindale stayed in the reception area for about ten minutes when she was greeted by a salesperson who took her to a larger reception area in which there were hundreds of people of varying nationalities and gender, including African- American women. The reception area contained a buffet, and the salesperson told Ms. Martindale that she could enjoy the buffet. The man then began to ask her questions about her annual income. He told her that he did not believe her and left to get Lissette Roman, who was the assistant manager resort liaison. He returned with Ms. Roman. When a potential customer does not appear to meet the financial qualifications for the free gift, Ms. Roman is asked to assist in determining if there is any way in which the potential customer may qualify for the free gift. Ms. Roman’s duties include asking questions concerning the amount and sources of income the potential customer has. Ms. Roman receives a commission for each timeshare unit that is sold. Many times potential customers who do not qualify for the free gift become upset, and it is Ms. Roman’s job to calm the potential customer and to avoid a confrontation. If the potential customer becomes antagonistic, Ms. Roman will call security. Ms. Roman asked Ms. Martindale questions about Ms. Martindale’s income. Ms. Martindale felt that Ms. Roman was rude to her, and she felt humiliated by Ms. Roman’s questions regarding her income. According to Ms. Martindale, Ms. Roman called her a liar, wrote cancelled on the invitation, and asked Ms. Martindale to leave the premises. Ms. Roman does not recall the incident involving Ms. Martindale; however, she does not believe that she called Ms. Martindale a liar because such conduct could result in her being terminated from her job. Based on the evidence presented, it is found that Ms. Roman did not call Ms. Martindale a liar, but that, based on the questions that Ms. Roman was asking relating to Ms. Martindale’s income, Ms. Martindale felt that the veracity of her response regarding the amount of her annual income was being impugned. Ms. Roman did write “cancel tour” on the invitation and asked Ms. Martindale to leave. Ms. Roman’s actions had nothing to do with Ms. Martindale’s gender or race. Based on the evidence presented, the conversation between Ms. Martindale and staff from Westgate was escalating into a confrontational situation in a room with hundreds of potential customers. The removal of Ms. Martindale from the premises was a means of avoiding a scene in front of other potential customers. Ms. Martindale wrote a letter to Westgate complaining about the incident. She did receive a telephone call from a representative of Westgate concerning the letter, and she may have been offered a tour of the resort. She was not interested in touring the resort at that time and does not want to tour the resort now. Ms. Martindale never made an offer to purchase a timeshare unit from Westgate. Westgate gives free gifts to males and females of varying nationalities, including African-Americans, if the potential customers meet the qualifications listed on the invitation. Westgate gives tours and sells to males and females of varying nationalities, including African-Americans, regardless of whether the potential customers meet the qualifications for the free gifts. Usually, if the potential customer does not qualify for the free gift, the potential customer does not care to take the tour. However, there have been potential customers who have not met the free-gift qualifications, have taken the tour, and have purchased timeshare units.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Ms. Martindale’s Petition for Relief. DONE AND ENTERED this 30th day of April, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of April, 2009.
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2014.
The Issue The ultimate issue to be resolved in this proceeding is whether the Development Order issued by the City of Miami for development approval for the Watson Island theme park should affirmed, affirmed with conditions, or reversed. In the Prehearing Stipulation, the Appellant stated its case as follows: The DRI Application for Development Approval (ADA) filed by the City of Miami is insufficient. The Council, after reviewing the ADA, notified the City of its insufficiency, the City refused to submit the supplemental information requested and decided to proceed with DRI review upon this insufficient ADA. In order to fulfill its statutory duty to assess the impacts of a DRI, a regional planning agency must be provided with adequate, competent, and credible information. In this case, the SFRPC has insufficient information concerning the developer's plans, methods and technology for it to evaluate the proposed development and any resulting adverse impacts and to adequately recommend mitigative measures. Further, an ADA is a binding document which serves as the basis for determining whether the develop- ment is constructed as approved and the ADA is therefore required to be incorporated in the Development Order. The Development Order should be set aside and the City should be directed to prepare a sufficient ADA. The Council further contends that the adverse regional impacts of the proposed development identified by the SFRPC in its Staff Assessment are not adequately considered and mitigated in the Development Order. The Development Order is insufficient because of the inadequate consideration of regional impacts, the failure to incorporate the Watson Island ADA, the City's reliance upon an insufficient ADA, and the City's perfunctory dismissal of the Council's recommended changes that would make the project eligible for approval. Further, the Resolution fails to comply with the legal requirements of Fla. Admin. Code Rule 22F-1.23 and Section 380.06, as amended by Chapter 380, Florida Statutes, in the following regards: It does not incorporate the Development Order. It does not authorize the City Clerk to send certified copies of the Development Order to the state land planning agency and to the COUNCIL. It does not specify monitoring procedures and the local official responsible for assuring the develop- ment's compliance with the Development Order. It does not establish an expiration date for the Development Order, including a deadline for commencing physical development, for compliance with conditions of approval, and for the termination of the Order. It does not specify the requirements for the Annual Report designated under subsection (16) of Section 380.06, Florida Statutes. It does not specify the types of change in the development which require a submission for a substantial deviation determination under subsection (17)(a) of Section 380.06, Florida Statutes. For the aforementioned reasons the Council requests that the Development Order of the City of Miami Commission be set aside and the City's ADA be returned to the Council with directions to the City to provide adequate, consistent, reliable information and proposals to mitigate the identified adverse regional impacts of the Watson Island Development. The Respondent stated its case in the Prehearing Stipulation as follows: That Section 380.07, Florida Statutes is invalid for vagueness and that this hearing pursuant to said statute is, therefore, invalid for the following reasons: That Section 380.07, Florida Statutes, is invalid for vagueness and that this hearing pursuant to said statute is, therefore, invalid for the following reasons: The statute has no standards, guidelines or criteria upon which the Florida Land & Water Adjudicatory Commission may properly render a decision on whether the Development Order is meritorious in a quasi- judicial proceeding. The standards set forth in Section 380.06(11)(2), F.S. (1980) are so general, broad and vague as to be meaningless. In terms of the constitutional validity of Section 380.06(2) and 380.10, F.S., it appears that the Legislature has sought to make a final determination of the law by concurrent resolution rather than by statute, despite the language of Article III of the Florida Constitution. c The statute nowhere indicates which party shall be the Plaintiff and which party shall be the Defendant, or which party shall carry the burden of proof in a de novo proceeding. That the city filed a detailed and comprehensive application with the South Florida Regional Planning Council seeking the Council's approval of the Watson Island Project pursuant to Section 380.06, F.S. That the City of Miami, by a Public Hearing, adopted a resolution approving and issuing a developmental order pertaining to the Watson Island Project and incorporating numerous modifications suggested by the South Florida Regional Planning Council. The procedure was in compliance with Section 360-06, F.S. and FLA. ADMIN. RULE 22 F-123. That the Watson Island Project, as approved in the developmental order with modifications, was and is in the public interest on environmental, physical and other grounds. That the Watson Island Project has no substantial regional impact as defined in Section 380.06(1), and The Land and Water Adjudicatory Commission is estopped from rendering a decision since a Court in a bond validation proceeding has already determined that the Watson Island Project served a valid public purpose.
Findings Of Fact Watson Island is a parcel of land lying in Biscayne Bay in the City of Miami, Dade County, Florida. It is approximately eighty-six acres in size. Watson Island has an unnatural genesis. It was formed as a spoil island, receiving deposits of dredged material as a result of construction and maintenance of various channels in Biscayne Bay. The island forms a portion of the "General Douglas MacArthur Causeway" which is a highway connecting the mainland with the City of Miami Beach. The causeway is also designated as U.S. Highway 41 and State Road A-1-A. Watson Island presently serves as a recreational facility. It is commonly used as a picnic area, and as a launching site for recreational boats into Biscayne Bay. The Miami Yacht Club and the Miami Outboard Club utilize the island as a center for their activities. There is a Japanese garden maintained on the island, and Chalk's Seaplane Service and a heliport are operated as commercial enterprises. Watson Island is owned by the City of Miami. [This finding is determined from Hearing Officer's Exhibit A; Exhibits 5, 10, and 15; and testimony from members of the general public.] The City of Miami is proposing to construct an amusement theme park on Watson Island. The seaplane service and heliport presently in operation would be moved to other locations on the island. The Japanese garden would be maintained. The park as proposed would be designed to combine specialty shops, rides, restaurants, shows and handicraft exhibits. The primary themes would be a "Caribbean international village," a "turn-of-the-century promenade," and "Old Florida" amusement and entertainment areas. There would be a variety of amusement-park type rides. The project includes plans for construction of two new marinas, a 1,500 foot cultural hall for musical and theater presentations, a film theater and various other entertainment facilities. On-site parking would be provided for more than 3,000 cars an buses. The project has been designed to provide entertainment for people of all ages, and of varying interests. The City is seeking to provide an attraction to serve the recreational needs of local residents, and to attract additional tourists to the South Florida area. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 10, 15, and 25.] The City of Miami has been engaged in planning and designing the proposed Watson Island theme park for several years. Private consultants have been retained to assist the City, and the City's own staff as well as staff from other governmental entities have been consulted. The City apparently assumed from the outset that the project would be a development of regional impact as contemplated by Chapter 380, Florida Statutes, and approval of the project as specified in that Chapter has been sought. The provisions of Chapter 380 require that developments of regional impact be reviewed by the appropriate regional planning agency. The regional planning agency which reviews proposed developments of regional impact in Dade County is the South Florida Regional Planning Council (SFRPC hereafter). The City filed its initial request for review of the proposed Watson Island development with the SFRPC on October 24, 1979. The SFRPC returned the request and accompanying data to the city on November 9, 1979, and requested further data. The city filed its second request for review in February, 1980. The SFRPC again requested additional data. By letter dated March 25, 1980, the City declined to provide additional information, and the SFRPC proceeded to consider the proposed development. The SFRPC staff issued a report in May, 1980. The City responded, and the staff replied. The SFRPC conducted a public hearing on June 2, 1980, and on June 3 published its final assessment of the proposed development, recommending to the City of Miami that the development not be approved. In addition to being the applicant or developer in this case, the City of Miami is also the local government with authority to issue a Development Order. The City conducted public hearings on June 26 and July 10, 1980, and issued a Development Order approving the development as described in the application for development approval. The instant appeal proceeding initiated pursuant to Section 380.07, Florida Statutes, ensued. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 7, 10, 12, 13, 14, 15, 20, 27, 30, 32, 33, and 47.] The final report of the SFRPC identifies numerous adverse impacts and risks associated with the proposed Watson Island development. While the SFRPC has contended that the City has not adequately addressed these matters in its Development Order, there has been no evidence offered that several of the asserted impacts would have any consequence beyond the immediate area of Watson Island or the City of Miami. The impacts which the evidence does not establish have consequences beyond the City of Miami are: (a) that the project makes ineffective use of the extensive shoreline by constructing non-water dependent facilities along the waterfront; (b) that the project and its associated activities are expected to result in an increase in air pollution emissions; (c) that noise disturbance generated by the project would result in noise levels incompatible with nearby residential areas; (d) that the project locates a large public investment for non-water dependent activities in a flood problem area; that the proposed project would eliminate an opportunity for free public access to a waterfront area; (f) that the health and safety of theme park patrons would be at risk because the plan provides no means of access for emergency service vehicles; and (g) that handicapped patrons would be prevented from ready access to the park because of improper design of a pedestrian bridge. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 7, 10, 12, 15, 20, 25, 27, 30, and 32.] In addition to the matters set out in paragraph 4, the SFRPC has contended and sought to establish that the proposed development would have adverse impacts beyond the City of Miami relating to transportation facilities, water quality, and fiscal impact. [This finding is determined from Hearing Officer's Exhibit A.] The Development Order was issued by the City of Miami in the form of a Resolution with an accompanying document labeled "Development Order." The Resolution included the following language: A development order approving with modifications, the Watson Island development, a development of regional impact, proposed by the City of Miami, located on Watson Island and bay bottom in Biscayne Bay, be and the same is hereby granted and issued. While the Resolution does not explicitly incorporate the Development Order by reference, the Development Order is inextricably a part of the Resolution. The Development Order was attached to the Resolution, and was stamped with the same resolution number (80-525) as the Resolution. The Resolution and Development Order include the recitations required by statute and rule. There is no evidence in the record from which it could be concluded that the Development Order was not in existence at the time that the Resolution was adopted. [This finding is determined from Exhibit 32.] Watson Island lies on both sides of a highway which is designated as Federal Route 41, and State Road A-1-A. The roadway is a regional highway facility, connecting the City of Miami on the mainland with the City of Miami Beach. These are regionally significant activity centers. A substantially increased volume of traffic on the roadway would reduce accessibility between them. The roadway is not maintained by local government for local resident purposes, but rather is a state and federal highway of regional importance. Data provided by the City of Miami in support of its contention that the proposed development would have no significant traffic impact is deficient because it understates the traffic impact of the proposed development, overstates roadway capacities, and understates increased levels of roadway usage that are likely to result without regard to the Watson Island development. The City has estimated that ten thousand persons a day will visit Watson Island, and that thirty percent of these will arrive through some means of public transportation. The nature of this public transportation is not identified. No plans exist to connect Watson Island with any presently existing or proposed public transportation facilities. The thirty percent estimate was offered by one of the City's private consultants which does not appear to be a traffic consultant. The estimate is not supported by evidence of record, and could not be achieved without the existence of public transportation facilities to accomplish it. The City's estimate of average daily vehicle trips on the MacArthur Causeway that would be generated by the Watson Island development (5,408) is thus understated by as much as thirty percent. The City has based its estimate of the traffic carrying capacity of the MacArthur Causeway upon an assumption that traffic lanes to the east of Watson Island will be widened. There are no existing plans to accomplish widening of the roadway, and no money for that purpose has been budgeted. The City has contended that traffic growth on the MacArthur Causeway between 1980 and 1985 can be estimated at 2.27 percent. This estimate is based upon growth reflected during the years 1975 to 1979 at one location on the causeway. The Dade County Department of Traffic and Transportation and the Florida Department of Transportation consider that 3.5 percent is a more realistic growth figure. This latter figure is more credible, and is itself conservative when other large planned developments in close proximity to the MacArthur Causeway are considered. These include projects known as Fisher Island, Ball Point, Downtown Government Center, DuPont Plaza, Southeast Financial Center, and World Trade Center. Unless adequate provision is made to expand the load carrying capacity of the MacArthur Causeway and to provide viable alternate means of reaching Watson Island, the traffic impact of the proposed development would substantially and adversely affect traffic flow on the MacArthur Causeway. The MacArthur Causeway presently functions to adequately accommodate vehicle usage at most locations during most times of the day. At peak traffic periods, however, the causeway is over-utilized. Placing an additional heavy traffic burden upon the causeway would render its level of service poor during substantial parts of the day. The impact would extend to other regional roadways including U.S. Highway 1 and Interstate Highway 95. [This finding is determined from Exhibits 5, 7, 10, 12, 15, 20, 27, 30, 32, 39, and 46.] Watson Island is located across a channel known as "Government Cut" from the Port of Miami. The Port of Miami is presently engaged in expansion which is being financed through public expenditures. The port utilizes a turning basin which is directly adjacent to the west side of Watson Island. The turning basin measures approximately 1,600 feet across and is barely adequate to accommodate ships which utilize the port. A larger generation of ships, including a passenger ship known as the S/S Norway, have made plans to utilize the Port of Miami. Such use will necessitate an expansion of the turning basin to at least 2,000 feet. The proposed Watson Island development includes a marina on the west side of the island. The marina would accommodate approximately 165 boats. The marina would interfere with the present turning basin, and would prevent expansion. The increased boat traffic that would result from operation of the marina would further restrict the turning basin and inhibit planned and projected growth for the Port of Miami. The Port of Miami is a regional transportation facility. Unless the marina proposed on the west side of Watson Island is eliminated or relocated, operation and projected growth of the Port of Miami will be impeded. The result would be a diversion of shipping traffic from the port. The Development Order issued by the City of Miami requires that the City work with the Port Authority and the local pilots' association to assure that the Watson Island development does not interfere with port operations. The Development Order, however, allows implementation of a project which will interfere with operations and expansion of the port. [This finding is determined from Exhibits 5, 7, 10, 15, 20, 24, 27, 30, and 32.] The SFRPC has contended that the proposed Watson Island development would have an adverse impact upon water quality in Biscayne Bay, and that this impact is of significance beyond the City of Miami. This contention is not supported by the evidence. The water quality impacts asserted by the SFRPC are short-term impacts that would result from construction activities, and long-term impacts that would result from dredging, increased drainage runoff, and loss of wetlands. As to the short-term impacts, the City proposes to utilize turbidity screens and construction techniques that would minimize and confine turbidity that would result from construction. The only dredging activities that are proposed are in connection with the laying of sewer lines from the island to a regional sewage treatment facility, and in connection with laying pilings for the proposed marinas. The short-term consequences of these dredging activities can be minimized or eliminated through proper construction techniques which the City of Miami proposes to utilize. The long-term effects of dredging activities have not been shown to be significant. No new channels nor subsurface conditions are anticipated. The SFRPC has expressed concern that water depths in the areas of the proposed marinas are shown in the application for development approval to be deeper than at present. Obviously, dredging, with potentially permanent negative environmental impact, would be required to accomplish an increase in water depth. In other portions of the application for development approval, the City has indicated that it intends to do no such dredging. To alleviate any possibility for misconstruction of the application for development approval, any development order that is approved should include a prohibition against dredging beyond that necessary to accomplish the laying of sewer lines and the installation of pilings. The SFRPC contends that there will be increased runoff entering directly into Biscayne Bay as a result of the development because the presently permeable surfaces of Watson Island would be replaced with primarily impermeable surfaces. The City has, however, proposed a system of swales which will result in most runoff being caught and sent through permeable surfaces into Biscayne Bay rather than directly. The water quality impact of runoff, given the present condition of Watson Island, would therefore be minimal, except during periods of heavy storms when the swale system would be inadequate to trap all of the runoff. The evidence does not establish that the environmental impact of runoff after a heavy storm would be significant in terms of water quality in Biscayne Bay. Construction of a proposed marina on the north side of Watson Island would eliminate approximately 470 square feet of red, black, and white mangroves. The evidence does not establish what environmental impact the elimination of such a small quantity of mangroves would have on water quality in Biscayne Bay. Whatever the consequence, the City has proposed to replace the mangroves on a nearby island at a ratio of four mangroves planted for each destroyed. The record in this case does not establish the positive environmental aspects of mangrove populations. Even assuming, as has been established in other cases [see e.g. Graham v. Estuary Properties, Inc., So.2d (Supreme Court of Florida Case No. 58,485, April 16, 1981)], that destruction of large mangrove populations would have severe environmental impact, it cannot be concluded that the Watson Island mangroves are environmentally significant. Only a very small community, estimated at less than 100 plants, is involved, and the City proposes to create an expanded mangrove population in another location to compensate. [This finding is determined from Exhibits 5, 7, 10, 15, 18, 19, 20, 27, 30, 32, and 36.] The SFRPC asserts that if operation of the proposed amusement theme part were unsuccessful, the economic consequence to the city of Miami could be so severe as to have direct fiscal consequence in adjoining areas, rendering it difficult for other local governments to finance public projects. The contention is not supported by evidence of record. The City would undoubtedly be taking a significant economic risk by developing and operating the proposed Watson Island amusement park. The project is being financed through issuances of municipal revenue bonds, and through grants from the Federal Government which have not yet been secured. The City intends to sell $55 million in municipal revenue bonds. Of this amount there will be an issuance of "Series A" revenue bonds in the amount of $35 million which would be secured by revenues from the amusement park project solely. The remaining $20 million would be designated "Series B" tax supported bonds, and would be secured first by project revenues, and secondly by City of Miami non-ad valorem taxes, revenues, and fees. Thus, if the amusement park did not yield revenues sufficient to service the bond debt, the City could be responsible for up to $20 million plus interest payable from city funds. In addition, the City would be obliged to pay for various services that would be rendered to the park, including fire protection services, potable water facilities, wastewater treatment facilities, and miscellaneous other facilities. The City would also be obliged to pay, under its contract with a private management firm, Diplomat World Enterprises, $12 million as a management fee for operation of the project during the first five years of its operation. All of these amounts would be financed through revenues of the amusement park if the park generated sufficient revenues. If it did not, the City would be obliged to use its general revenues. The City projects that the project will pay for itself, and perhaps show a net profit as early as the third year of operation. This projection is based upon information provided by the City's consultant, Economic Research Associates, a consulting firm that has provided services to numerous major amusement theme parks. In some respects, the economic projection for the proposed development seems overly optimistic. For example, it is estimated that the park would draw three million visitors during the third year of its operation. This is a larger projected attendance than is realized by several already existing theme parks which are larger than that proposed on Watson Island, including Busch Gardens in Tampa, Florida, and Six Flags Over Georgia in Atlanta, Georgia. While the projections are optimistic, they may be realizable due to the fact that the Watson Island park would be open every day, and in the evenings. Furthermore, the park is located in a large metropolitan area with that clientele as well as a significant tourist clientele to draw upon. The estimates are supported by the experts best able to make them, and are not refuted by competent evidence of record. This is not to say that the evidence would support a finding that the proposed Watson Island development would be a successful operation in fiscal terms. The evidence does, however, establish that there is a favorable prospect that the project can be operated without a negative fiscal impact upon the City of Miami. There is no evidence in the record from which it could be concluded that the fiscal impact upon the City of Miami would be so adverse as to have impact beyond the City even if the project were a total failure. No evidence was offered to show the fiscal position of the City of Miami, nor its ability to adequately handle the debt that it would be undertaking by developing the proposed amusement park. The proposed Watson Island theme park would have several favorable economic impacts. Construction jobs would be made available during that phase of project, and approximately one thousand full or part-time employees would be required to operate the park. The park would serve as an attraction to increase the tourist trade within the region. The project would thus have the effect of stimulating commerce in the region and producing additional jobs, including jobs for low income and minority persons. [This finding is determined from Exhibits 5, 7, 10, 12, 15, 20, 25, 27, 30, 32, 41, 42, 43, and 45; and from the public testimony.]
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent FCB, Inc., d/b/a Unicorn Liquors Fantasy Show Bar (Show Bar) was the holder of Florida Alcoholic Beverage License Series 4-COP, No. 15-00398 for the Fantasy Show Bar located at 104 Cleveland Avenue, Cocoa Beach, Florida. During the course of an ongoing investigation by the United States Division of Alcohol, Tobacco and Firearms, (DATF); the United States Drug Enforcement Agency (DEA); and the Florida Department of Alcoholic Beverages and Tobacco, investigators and agents of all three agencies had been in the Cocoa Beach area since the end of February, 1984, regarding a list of some twenty (20) bars and lounges in the area about which complaints, regarding drugs had been received. During this time, using a investigator, Beverage Officer Smith had made friends with one of the dancers at the Show Bar, a woman named Janice Becker, who use the stage name "Angel." At approximately 10:30 p.m. on April 3, 1984, Smith and DATF Agent Altman, working together in an undercover capacity, entered the Show Bar. The bar was more well lit than most bars and they were able to see quite clearly. They took seats near the runway and shortly afterwards observed what to them appeared to be a surreptitious transfer of contraband from one dancer to another. The subject of the transfer, a small clear envelope of a white powdery substance was wrapped by both dancers in a napkin when not in their purses except for the time it fell to the floor and was observed by Altman. One dancer then handed money to the other in return. When Smith approached one of the two dancers involved, Nora, and asked for some cocaine for herself, Nora indicated she had none available but tried unsuccessfully to get some from another dancer, Lynn. Just at this time, Angel came up and engaged in a discussion regarding cocaine with Smith and Altman. She stated that she had some cocaine herself that she would give them after she danced for some customers. Some thirty (30) minutes later Angel came back and placed a folded $1.00 bill in Altman's hand. Altman gave the hill to Smith who immediately took it into the 1dies' restroom where she opened it and found a white powdery substance later properly determined to be cocaine. When Altman asked Angel what he owed her for the substance, she replied that it was a gift from her. She also stated that if he needed more in the future she could make it available in quantities of one half (1/2) or one (1) gram and would deliver to their residence or to the Show Bar. Altman and Smith again went into the Show Bar at about 10:30 p.m. on April 10,1954. When they entered, Angel came up to them and said she could not get the cocaine that Smith had previously ordered by phone for delivery at the Show Bar. Angel said that Barbie, another dancer at the bar, could get it in quantities of one half (1/2) to one (1) gram for $50.00 and $100.00 respectively. When Smith asked for one (1) gram and asked Angel what she wanted for her trouble, Angel said she would take a "line". Angel then made a call from a pay phone after which she told Smith the cocaine would be delivered by her source, Tony, within a short while. Angel then went off to dance after a short conversation and, when finished, returned to Smith and Altman and asked them for $100.00 for the cocaine. When Altman paid her, she went over to another table where she talked with a male identified as Tommy. After speaking with him for a few minutes, she came back and said that since Tony had not contacted him, he did not have a full gram. When Altman heard this, he took back the $100.00 bill and gave Angel $50.00 for one half (1/2) gram. Angel went back to Tommy's table, then went into the dancer's dressing room, and returned to Altman and Smith's table where she made delivery of the substance later identified as cocaine. When Altman asked Angel if she needed a blade to take her "line", she replied that there was a blade in the dressing room that all the girls used. Altman and Smith came back to the Show Bar early on the evening of April 19, 1984. When they came in, Nora, one of the dancers they had seen involved in the surreptitious exchange on April 3, came up to Smith and asked her if she wanted any. When Smith indicated she did, they all went into the main bar and ordered drinks. During this time Nora mentioned she had given some cocaine to Barbie, another dancer. When Smith asked Nora how much she was charging, she was told $50.00 for one half (1/2) gram. Nora then told Smith to come with her into the restroom where when the transfer was made. Smith gave Nora $50.00 and Nora gave Smith a substance later identified as cocaine. On April 27, 1984. Smith and Altman, this time accompanied by DEA Agent Eslinger, entered the Show Bar at about 11:15 p.m. This time they were approached by a dancer, Samantha, with whom they discussed cocaine use in general, but made no buy. Somewhat later, a female patron known to Smith as Deosia, came up to Smith and indicated she had some good "stuff" for sale. Smith was then told to go to the restroom and Deosia would get some cocaine for her. When she got there, Smith paid Deosia $80.00 and the two women left. On the way out of the restroom, Deosia stopped to talk with a male she identified as Doug and asked him for some cocaine. Smith went back to her table from which she saw Doug leave the premises, only to return ten (10) minutes later. Somewhat later, Deosia came to Smith's table and gave her two small packages subsequently identified as cocaine, from which, she said, she had taken out her "lines" as a finder's fee. The three investigators came back to the Show Bar the following night, April 28, hoping to find Nora and Deosia, and sat at a table. Shortly thereafter, Deosia came up and said she had started to work there as a dancer that night. She sat down beside Smith and told her she could get her one-eighth (1/8) ounce of cocaine and that it was much cheaper to buy it that way. The agents discussed among themselves, in front of Deosia who then went and made a phone call; returning shortly to say the deal had been set up. She then wrote out the address where they could pick up the cocaine and asked for and received from Eslinger a $20.00 fee for setting up the deal. The officers subsequently went to the address which Deosia had given them where they paid for and received a substance subsequently identified as cocaine. When Smith, Altman and Eslinger next went back to the Show Bar on the night of May 2, 1984, they were approached by the dancer, Samantha, who sat down next to Smith. They talked for a while about who had cocaine available and Samantha left to go dance. After she left, two males known to the agents to be drug dealers came up and sat down to talk. While they were there, Deosia came up and Smith asked her if she could get one eighth (1/8) of an ounce of cocaine. Deosia started to talk with one of the two men (Hair) and later asked Smith if she had $225.00. When Smith said she did, Deosia told her to come to the restroom where Smith gave Deosia $225.00. Deosia than talked to Hair after which she told Smith the cocaine was available for pick-up at a near by bottle club. After some discussion, it was decided that Altman would go with Deosia to get the cocaine and Smith and Eslinger would wait at the Show Bar. While Smith and Eslinger were waiting, another dancer, named Brandy, came up to Smith and engaged her in a discussion about cocaine transactions. When Deosia came back with Altman, she asked Smith to come into the restroom with her. In there, she pulled a substance later identified as cocaine out of her waistband, cut out her "line" which she "snorted" right there, and turned over the rest to Smith. Smith also bought cocaine from Brand, a dancer at the Show Bar, when she and her associates went in on the nights of May 4, 1984. Brandy told Smith she had fronted $50.00 for cocaine for her earlier in the evening when the source had come in. Smith gave Brandy $50.00 whereupon Brandy got up and went to the dressing room. When she came back five (5) minutes later, she gave Smith a folded $1.00 bill which contained what was later identified as cocaine. In a discussion there at the table, Brandy said, in response to an inquiry by Smith, that she could get cocaine in one eighth (1/8) ounce quantities and more. Smith gave her $50.00 for more cocaine to be delivered later. During their discussion, Brandy indicated that before coming to work at the Show Bar, she did not use cocaine but that she does now because it was so prevalent there. The three agents did not come back to the Show Bar again until the night of June 5, 1984. When they entered that night, they were met at the front door by a gentlemen they knew as Jim Knox who had previously been identified as the assistant manager of the club. Knox asked them to join him at his table which Smith did, while Eslinger and Altman stopped to talk with another patron. While Smith was sitting at Knox's table with Knox, Brandy came up and asked her if she wanted to buy some cocaine, to which Smith said she would buy one half (1/2) gram. Brandy left and shortly came back and sat down next to Smith and told her her source was going to another club to get the cocaine. Smith then gave Brandy a $50.00 bill and continued her conversation with Knox who had been sitting there all along. Shortly thereafter, Knox left and Brandy came back and placed a match box on the table indicating that the cocaine was in it. She then left to dance. Smith picked up the match box, opened it, and took out a plastic bag containing a white powder which was subsequently identified as cocaine. Lowell M. Tatum, a certified polygraph operator was asked by Fred Burgett, owner of the Show Bar, about eight or nine months prior to the hearing to do a series of polygraph examinations of his employees covering such areas as prostitution, drugs, thefts of merchandise, and the like. As a result he ran tests of the managers and cashiers, bouncers, waitresses and dancers, several times per month, with questions relating to the examinee's knowledge of the use or sale of drugs on the premises. These examinations were run more than once on each person and the results were furnished to Mr. Burgett. As a result of these examinations, management became aware of the possibility of drugs in the Show Bar and the suspects were discharged. John W. Lageman was hired as manager by Mr. Burgett approximately three and a half months before the closure. He was briefed on management's policies which included a strict prohibition against drugs and underage drinkers. When he was hired, he was not made aware of any problem regarding prostitution or drugs nothwithstanding Mr. Burgett's feeling, as indicated by his testimony, that in any bar of this size, there will always be some drug and prostitution activity. His instructions were to terminate any employee found involved in prostitution or drugs and to call the police when he had information a patron was dealing in drugs. Whenever he did that, however, the police would not arrest the offender but let him go. Mr. Burgett, who is a full time employee of the National Aeronautics and Space Administration at Kennedy Space Center and who operated this and another bar as an investment, has been in the bar business for twelve years. In that time he has never had a beverage citation in any capacity. Just recently, he contends, a representative of Department of Alcoholic Beverage and Tobacco advised him his operation was "fine". In order to combat what he recognizes as the very real risk of drugs and prostitution in any bar, he has arranged for not only the polygraph tests mentioned above, but also stress analysis of his employees, and uses spotters from outside the club. His anti-drug/prostitution efforts cost him about $1,000.00 per month. Nora was fired because she was suspected of prostitution and Samantha and her cousin Sonya also left. The management got information on Brandy's actions on June 8th, 1984 and were about to discharge her. Coincidently, the Emergency Order of Closure was served before that could be done. There is some sort of program within Department of Alcoholic Beverage and Tobacco to assist licensed holders to keep out drug activity and prostitution. Notice of this policy was contained in a letter dated March 8, 1984 from the Director of Department of Alcoholic Beverage and Tobacco to all licensees. Unfortunately, Kevin Ashcroft, an agent in the Department of Alcoholic Beverage and Tobacco office in Rockledge, Florida, did not know much about their program and could not recall providing any assistance to any licensee in the area. He contends that while Respondent's efforts are laudatory, they are insufficient per se because they did not work and, therefore, Respondent must be liable. It is his opinion that it is the responsibility of the licensee to insure that whatever steps he takes are successful. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings. In subparagraphs 1 - 3 and 5 - 7 of the Notice to Show Cause, the Petitioner alleges that on diverse occasions during April through early June, 1984, employees of the Respondent either sold or delivered a controlled substance, cocaine, to State or Federal agents, on the licensed premises in violation of Sections 893.13 and 576.29(1)(a), Florida Statutes (1983). Section makes it unlawful to sell or otherwise transfer controlled substances of which cocaine is one. Section 561.29(1)(a) provides that a liquor license may be disciplined upon the showing of: Violation by the licensee or his its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment; of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence. The testimony of Agent Smith, uncontradicted by the Respondent, is sufficient to support a conclusion that these violations, as alleged, took place. In Subparagraph (4) of the Notice To Show Cause, Petitioner alleges that on April 28, 1984, an employee of Respondent aided and abetted the sale or delivery of cocaine to the agent as alleged. The additional statutory provision cited here is Section 777.011, Florida Statutes, which makes the aider and abettor of an offense punishable as a principal. The other statutes allegedly violated here are the same as discussed in the paragraph next above. Again, the evidence presented by the Petitioner, uncontradicted by the Respondent, clearly establishes the violation. In paragraph 8 of the Notice To Show Cause, Petitioner alleges that during the period alleged and described in the Findings of Fact, supra, Respondent maintained a public nuisance on its licensed premises by maintaining it as a place used for the keeping, selling, and delivery of controlled substances in violation of Section 823.10, Florida Statutes. The evidence taken as a whole indicates the licensed premises repeatedly served as the locus for the sale and delivery of cocaine, a controlled substance, by several different employees of the license holder, and this allegation has clearly been established. The same evidence also clearly establishes the violation alleged in subparagraph of the Notice To Show Cause. The prosecuted conduct here is a violation of Section 893.13(2)(5), Florida Statutes, which makes it a misdemeanor of the first degree to keep a place which is used for the selling of controlled substances and, as well, a violation of Section 561.29(1)(a) and (c), Florida Statutes. Once it is established, as here, that the offenses alleged, in fact occurred, the questions then remains as to what, if anything, can and should be done about it. It is clear that the Petitioner has the authority to discipline a license holder when it finds that either the licensee or its agents have violated certain laws of the State on the licensed premises. 23 A showing of only one isolated violation, when combined with a showing that the licensee otherwise took pains to obey the law, would not normally support a revocation or, perhaps, even discipline. If, however, the evidence shows that the law has been repeatedly and flagrantly violated by the licensee's employees, an inference arises that the violations were fostered, condoned or negligently overlooked by the licensee; Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA, 1962); Lash, Inc., v. State, Department of Business Regulation, 411 So 2d 276 (Fla. 3rd DCA 1982). A licensee, therefore, has the obligation to maintain sufficient intelligence with regard to its own establishment so as to know, at least generally, what its employees are doing, and its failure of proper management; G&H of Jacksonville, Inc. v. State, Department of Business Regulation, (371 So2d 138 (Fla. 1st DCA 1979). In this case, the evidence shows that not merely one but several of the dancers employed by the licensee not only used but also dealt in cocaine. Though some effort was made to conceal these transactions by wrapping the cocaine in dollar bills or napkins, or by effecting the transfers in the ladies' restroom, many were consummated in the lounge and by far the greatest part of the negotiations were carried on there. Respondent made much of his effort to keep drugs out of the licensed premises but it is obvious that either he failed to get the word to his assistant manager, Jim Knox, or that gentleman did not take it seriously. No doubt Respondent did make some effort in that direction but as an owner who did not spend his full time as management, he failed to insure that those he left in charge supported his policies. This is not, however, to adopt the attitude of Mr. Ashcroft that if efforts do not work, they are inadequate. The law does not impose that strict a degree of liability. Consequently, while the Respondent had the responsibility to properly supervise its establishment and clearly failed to do so here, and though the sales were repeated and by several different employees, it cannot be said that the Respondent's negligence justifies revocation under the circumstances of this case. See also Rex Allen Jones, t/a Happy Hour v. State, Division of Alcoholic Beverages and Tobacco, Case No. AO-132 (Fla. 1st DCA 1984), Opinion filed March 30, 1984. RECOMMENDED ACTION Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore, RECOMMENDED that Respondent FCB, Inc. d/b/a Unicorn Liquors Fantasy Show Bar, pay a fine of $5,000.00. DONE and RECOMMENDED this 10 day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10 day of August, 1984. COPIES FURNISHED: William A. Hatch, Staff Attorney Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 James R. Dressler, Esquire 110 Dixie Lane Cocoa Beach, Florida 32931 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street The Johns Building Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Gainesville area. She is married and has children. On November 15, 2006, Petitioner went to the Days Inn at 7516 Newberry Road to make a reservation for her mother and sister. She was dressed casually and had her children with her. When she arrived at the Days Inn, she spoke with John Osley, who was later identified as the manager of the hotel, and asked if all the rooms were entered from the outside. He told her that the Newberry Road hotel had outside rooms only but that the Days Inn on Archer Road had internal corridors. Mr. Osley asked what dates she wanted to reserve. She told him November 23-24, which was Thanksgiving Day and the day after. Mr. Osley told her there were no rooms available those days because the hotel was the host hotel for a race-car event. She asked about cancellations and he told her to call back closer to the dates she needed the room to see if there were any. He gave her a business card for a person at the front desk. Upon her request, he allowed her to look at one of the rooms. Petitioner thanked Mr. Osley and left. After she left the hotel, she felt that she had not been treated appropriately. That evening, she checked on the Days Inn internet website to see if any rooms at the Newberry Road location were available online for November 23-24. She was able to make a reservation for the desired days via the internet. Ultimately, her mother opted to stay at another hotel. As a result, the reservation at the Days Inn was canceled. Petitioner was angry because she felt she had been mistreated at the hotel, and wrote to Joseph Kante, whom she identified as being in a management position for Days Inn. She also e-mailed him and within 24-hours, she received an apology from him. However, according to Petitioner, Mr. Kante indicated that each Days Inn is responsible for itself and the person she needed to speak to regarding the Days Inn on Newberry Street was John Osley. Petitioner returned to the Days Inn on Newberry Road in an effort to speak with Mr. Osley, and also called the hotel. Each time, Mr. Osley was not present and she never spoke with him about her concerns. After her attempts to reach him were unsuccessful, she filed her complaint with the Commission. No evidence was presented regarding any other person of any race seeking a room at the same time as Ms. Henderson who was able to reserve a room when she could not. No evidence was presented indicating that Mr. Osley was not being truthful when he stated that no rooms were available when Ms. Henderson originally sought to reserve a room.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim. DONE AND ENTERED this 27th day of September, 2007, in Tallahassee, Leon County, Florida. S Hearings Hearings LISA SHEARER NELSON Administrative Law Judge Division of Administrative 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 this 27th day of September, 2007. COPIES FURNISHED: Burnita Henderson 5010 Southwest 63rd Boulevard Gainesville, Florida 32608 John Osley Days Inn I-75 7516 Newberry Road Gainesville, Florida 32606 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection, violated the Florida Civil Rights Act of 1992 as alleged in a Petition for Relief filed by Petitioner, Edwin R. Bollinger, with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Edwin R. Bollinger, is a Caucasian male, born March 18, 1936. At the time of the alleged unlawful employment practice at issue in this case, Mr. Bollinger was 58 to 59 years of age. Mr. Bollinger was employed by the State of Florida from at least 1982 until his termination in May 1995. At all times relevant to this matter, Mr. Bollinger was employed by Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), or, prior to its absorption into the Department, the Department of Natural Resources. Prior to July 1994 Mr. Bollinger served as a park officer in the Florida Park Service of the Department. Mr. Bollinger was stationed at Bill Baggs Cape Florida State Recreation Area located in Dade County, Florida. Two other park officers were working with Mr. Bollinger in July 1994: Antonio Sanchez and Kathy Martinez. Effective July 1, 1994, all Florida Park Service officers were reclassified as law enforcement officers and were transferred to the Department's Division of Law Enforcement (hereinafter referred to as the "Division"). The position of park officer was abolished. Colonel Mickey Watson was the Director of the Division at all times relevant to this matter. Captain Carl Nielsen, Mr. Bollinger's immediate supervisor, met with Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on July 1, 1994, to swear them in as law enforcement officers within the Division. Captain Nielsen explained the nature of the new positions to the three officers, gave them a copy of the position description for the positions, and gave them new manuals. In particular, Captain Nielsen explained that the new positions would require the enforcement of the laws and rules that governed the parks on a full-time basis and the devotion of their efforts to full-time law enforcement. On February 3, 1995, Captain Nielsen placed Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on performance improvement plans (hereinafter referred to as "PIPs") because of deficiencies in their performance since their reclassification. Ms. Martinez and Mr. Sanchez successfully completed their PIPs. On May 10, 1995, Mr. Bollinger was dismissed from his position with the Department for failure to perform his duties satisfactorily. The dismissal was recommended by Captain Nielsen and approved by Colonel Watson. Mr. Bollinger was 59 years of age at the time of his dismissal. Colonel Watson, Captain Nielsen, and Mr. Sanchez were in excess of 40 years of age at the time of Mr. Bollinger's dismissal. Ms. Martinez was less than 40 years of age at the time of Mr. Bollinger's dismissal. Mr. Bollinger challenged his dismissal before the Public Employees Relations Commission (hereinafter referred to as "PERC"). On June 22 and 23, 1995, and July 5, 1995, a hearing was conducted by a PERC Hearing Officer. A Recommended Order was entered on August 2, 1995, finding that just cause existed for Mr. Bollinger's dismissal. The Recommended Order included the following conclusion: In conclusion, the Agency has proven by a preponderance of the evidence that Bollinger did not meet his performance standards, after he was informed of the deficiencies, given assistance in improving the deficiencies, and had an amply opportunity to improve his deficiencies. See Croce v. Department of Corrections, 3 FCSR 239 (1988), affirmed, 553 So.2d 1181 (Fla. 4th DCA 1989)(unsatisfactory performance on one or few job duties which are critical factors for the effective functioning of an agency can support discipline for unsatisfactory performance). Thus, Bollinger's unsatisfactory performance of his duties supports just cause for discipline. Page 19, Respondent's Exhibit 1. The Recommended Order was subsequently adopted by PERC by Final Order entered on or about January 23, 1996. The evidence failed to prove that Mr. Bollinger's age played any role in his dismissal by the Department. In June of 1990 Mr. Bollinger underwent extensive surgery on his right shoulder, chest, and neck due to squamous cell carcinoma right parotid gland. Mr. Bollinger returned to work on November 12, 1990. Although the following description of the results of Mr. Bollinger's initial and subsequent surgery was written after Mr. Bollinger's termination from employment with the Department, it adequately describes his condition during the times relevant to this proceeding: This produced a deformity of the chest wall as well as more deformity of the supraclavicular area of the right side of his neck as well as a large scar in that area. The surgery included dissection of the facial nerve which was not completely successful because of the entanglement of the tumor around the nerve. [Mr. Bollinger] was left with a facial nerve palsy. He also complains of some loss of hearing, loss of motion of the shoulder and loss of motion of his neck. Petitioner's Exhibit 11. After returning to work after his surgery, Mr. Bollinger informed his immediate supervisor that he could perform his responsibilities without limitation but requested that he be permitted time to switch his firearm qualification from his right hand to his left hand. He also made informal requests for reduced beach patrol, foot patrol, and water patrol so that he could minimize his exposure to the sun. The evidence failed to prove that these informal requests were not granted. Mr. Bollinger did not inform Captain Nielsen that his physical condition would in any way prevent him from satisfying the PIP imposed on him by Captain Nielsen prior to his dismissal. Mr. Bollinger also did not make any request to the Department for any accommodation for his physical condition other than noted, supra. Despite the consequences of the surgery performed on Mr. Bollinger, he continued to carry out his duties with the Department from 1990 to 1994 when he was discharged for reasons unrelated to his medical condition. The evidence failed to prove that Mr. Bollinger's disability played any role in his dismissal by the Department. The evidence failed to prove that the Department's actions were a pretext for discrimination based upon Mr. Bollinger's age or disability. There was no evidence that the Department's dismissal of Mr. Bollinger was grounded on discriminatory animus or that discriminatory reason motivated the Department in its actions toward Mr. Bollinger.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding that Edwin R. Bollinger failed to prove that the Department of Environmental Protection committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1995), and dismissing, with prejudice, Mr. Bollinger's Petition for Relief. DONE AND ENTERED this 15 day of June, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 June, 2000. COPIES FURNISHED: Edwin R. Bollinger 6372 Alderwood Plaza Woodbury, Minnesota 55125 Marshall G. Wiseheart, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent is guilty of discriminating against Petitioner, due to her handicap, in providing a public accommodation, in violation of Section 760.08, Florida Statutes.
Findings Of Fact Petitioner suffers from a panic disorder for which she requires the assistance of a service animal. Her service animal is a 40-pound German Shepherd mix named "Rocky." Rocky enables Petitioner to overcome certain specific disabilities associated with her condition, but she does not always require Rocky's assistance. In the summer of 2009, Petitioner's mother organized a family vacation in the form of a Caribbean cruise on a vessel operated by Respondent. She selected a cruise departing Port Everglades on August 9, 2009. The group included Petitioner's father, Petitioner's sister, her fiancé, and others. The first port of call for the cruise after departing Fort Lauderdale was Key West, after which the vessel would sail to various ports under the jurisdiction of other countries. On the morning of the departure, Petitioner's then- boyfriend John McCarthy drove her and Rocky from Key Biscayne, where they live in the same condominium building. Mr. McCarthy proved to be a useful witness. He and Petitioner are no longer in a relationship. Mr. McCarthy portrayed the events largely in agreement with Petitioner's version of events, although his reliability is somewhat undermined by the fact that he and Petitioner have discussed many times what exactly took place on that day. However, he displayed a spirited independence from Petitioner, as when he described her decision to file this "lawsuit" as "ridiculous," and, more importantly, admitted that, while in the terminal, he was unsure whether Petitioner wanted to take Rocky with her on the cruise. Much, but not all, of his testimony has been credited. Leaving Key Biscayne that morning, Petitioner did not, in fact, intend to have Rocky accompany her on the cruise. Among other possible reasons, Petitioner's mother had asked her not to bring Rocky, and Petitioner had acceded to her mother's wish. It was Petitioner's intent only for Rocky to see her off. Without incident, Petitioner, Mr. McCarthy, and Rocky left the car at the cruise terminal parking area and made their way into the cruise lobby. The trio entered the lobby amidst swarms of embarking and disembarking passengers. Respondent hosts on its cruises many passengers with disabilities, including some passengers with service animals. Two Carnival managers described Respondent's policies for accommodating disabled passengers. The Guest Access Support manager, Kay Strawderman, explained the process by which persons purchasing cruise tickets are directed to complete a form that provides information about disabilities or special needs. If a passenger is bringing a service animal, Respondent informs the passenger that he or she must contact the U.S. Department of Agriculture for current regulations, by port, governing animals, such as requirements for vaccination records. These regulations are imposed by the countries visited by the vessel and may be enforced even if the animal does not leave the ship. Neither Respondent nor the U.S. government has the authority to permit any deviations from these foreign laws. Using the information provided in the completed forms, the Guest Access Support department compiles a list of special- needs passengers, including passengers who will be bringing service animals. The Guest Access Support department sends this list to the Guest Logistics department. Assigned to the terminal and in direct contact with passengers, Guest Logistics employees ensure the efficient boarding and exiting of the vessels and movement through the terminal. The Guest Logistics manager, Doris Enamorado, testified that her employees use the special-needs lists to ensure that special-needs passengers and, if applicable, their service animals are directed to special boarding areas, so they can board without any delay. Ms. Strawderman and Ms. Enamorado both considered the question of what they would do if a special-needs passenger failed to fill out and return the forms, but arrived at the terminal seeking to board with her service animal. The question is hypothetical because this has never previously happened, including on the day in question. Ms. Strawderman insisted that, if a special-needs passenger failed to return the forms, Respondent would not deny boarding. Ms. Enamorado added that, if one of her employees encountered a passenger with an animal in the terminal seeking to board, the employee would determine if the animal were a service animal, including how it services the disability, and then examine the vaccination records, without which a service animal may not sail due to the requirements of the laws of foreign countries. Shortly after they entered the terminal, Petitioner, Mr. McCarthy, and Rocky were approached by a Carnival employee named "Alex." Respondent invites the inference that Petitioner spontaneously exploded into anger and hysterics. At the hearing, Petitioner displayed a tendency toward combativeness, but none toward spontaneous anger or hysterics. More likely, Alex, upon encountering Petitioner, Mr. McArthur, and a dog in a crowded terminal, momentarily failed to display the composure and dedication to service of Respondent's managerial employees who testified at the hearing. Mr. McCarthy's testimony is especially useful at this point and is largely credited. Approaching Petitioner, Alex abruptly informed her that Rocky could not proceed. It is likely that Alex assumed that Rocky was a mere pet, as he does not wear a special cape or harness and Petitioner does not bear any obvious indication of a disability. Petitioner replied that Rocky was a service dog, and he was present only to see her off on the cruise. Alex replied that Petitioner did not appear to suffer from a disability. As Mr. McCarthy aptly notes, "the fight was on." Each side called for reinforcements. Petitioner spoke on her cellphone with her sister and mother. Alex summoned his supervisor, who joined the fray. Mr. McCarthy and Rocky wisely stood to the side. By now, Petitioner was crying out of control. In this condition, she could not reliably report on what she said to Respondent's employees or what they said to her. Mr. McCarthy seems to have been unable to hear much of what the parties were saying to each other. Respondent's employees report that their behavior was impeccable. Regardless, there is no reliable evidence that Petitioner ever demanded that Rocky, her service animal, board the vessel with her. Much evidence suggests that Petitioner never intended to take Rocky on the cruise. As far as Petitioner's mother or Mr. McArthur knew, Rocky was staying home. Petitioner herself had failed to pack any food for Rocky, nor did she at any time instruct Mr. McArthur to drive to a nearby store to obtain any. No evidence suggests that Petitioner had brought with her any proof of Rocky's vaccinations, which might be required by the various countries that they were visiting. Once on board, Petitioner did not even demand that Respondent allow Rocky to board in Key West. To convince her daughter to board the vessel, Petitioner's mother said that Rocky could join them in Key West. Even after the vessel had sailed, Petitioner, still agitated, spoke constantly with Mr. McCarthy until the vessel sailed out of cellphone range. She directed him to drive Rocky to Key West to join her on the cruise, but Mr. McCarthy, citing a bad back and the fact that his birthday was the next day, declined to do so, instead taking Rocky to South Beach the following day. Mr. McCarthy's testimony suggested a boyfriend who was unwilling to cater to his girlfriend's capricious decision to make an issue with Rocky, not a boyfriend who was unwilling to help right a wrong that his girlfriend had suffered. At some point prior to arriving in Key West, Petitioner realized that Mr. McCarthy had no intention of driving Rocky to Key West. Rather than disembark in Key West, as she wanted, Petitioner acceded to her mother's exhortations and remained on board, but she was very unhappy for the remainder of the cruise.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's amended petition. DONE AND ENTERED this 21st day of September, 2010, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2010. COPIES FURNISHED: Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608 Martha deZayas, Esquire Carnival Cruise Lines 3655 Northwest 87 Avenue Miami, Florida 33131 Kara S. Nickel, Esquire Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 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
