The Issue Whether Golden Corral discriminated against Mark Turner on the basis of his race at Respondent's restaurant or place of public accommodation, and, if so, what the relief should be.
Findings Of Fact Based on the evidence presented, the undersigned makes the following findings of material facts: At the time of the incident, Turner was a 56-year-old African-American. He is married and has a six-year-old daughter. He worked for General Motors for 30 years on the assembly line and also worked as a line coordinator. In 2011, he retired and purchased a condominium in Homestead, Florida, where he lives with his wife and daughter. After he retired, he purchased and now rents several condominium units in Columbia, South America. He visited the Golden Corral restaurant approximately one time each month with his family. The Golden Corral restaurant offers a buffet to its patrons. However, there is a "No Sharing" policy posted on a placard in the lobby. See Resp.'s Ex. 2. The sign states the following: Please, no sharing. In the interest of keeping our food prices as reasonable as possible, we ask that you please not share food from the Golden Corral buffet. To-go meals from the buffet are available for purchase. Ask your server. On an unspecified date in October 2014, a customer complained to the staff, that another customer (later identified as Turner) was taking food from the buffet and putting it in plastic Tupperware containers. The complaining customer was a female African-American. Based on this information, Feliciano watched Turner approach the buffet and put items of food in a Tupperware container. This was also being done by a female identified as Turner's wife. During the first incident, Feliciano took Turner aside to a private room, explained what he had observed, and asked him to leave the property. It was Feliciano's testimony that Turner did not deny taking food. He also told him he was expelled from the restaurant. Feliciano testified that Turner was a frequent guest, and, so, Feliciano was able to positively identify him as the person violating the no sharing policy. When Turner and his family left the restaurant, Feliciano noticed that he was carrying re-usable, grocery-type bags with him capable of storing Tupperware containers. Several weeks later, Feliciano observed Turner in line attempting to enter the restaurant. Feliciano approached Turner and reminded him that he had been expelled and instructed him to leave the premises. This was done without incident. Apparently, there was video surveillance available which would have captured some or all of the incidences in question. However, no photographs or video surveillance were offered into evidence by either party. Feliciano had worked at this restaurant for approximately ten and one-half years. The company grants fairly wide discretion to its managers to take action against customers who violate rules. That discretion ranges from calling the police to expelling patrons under appropriate circumstances. The president and CEO of Golden Corral testified that the company offered general training to staff members related to problem customers. He related that there was "lots of training books and videos" given to general managers and staff regarding how to handle problematic customers and patrons. However, there was no training offered on specific adverse situations. The company does offer "discrimination training" to its staff and general managers during meetings and company conferences. A company named Speilman1/ out of Winston Salem, North Carolina, provided this training. The president spoke with Turner on the telephone. He told Turner he concurred with the general manager's decision to expel him. During the course of this telephone discussion, Turner did not deny taking food and asked if he could come back to the restaurant "if he stopped." (The context of this comment was if he stopped violating the no sharing policy.) Upon further inquiry, the president testified that he was absolutely sure that Turner told him this. Feliciano testified that Golden Corral serves people of all races and backgrounds. He stated that the "no sharing" policy was prominently displayed at the restaurant. The customer, who complained about Turner's conduct, said that she watched him fill Tupperware containers with chicken and ribs. She mentioned that this was very upsetting to her. Feliciano also checked the plates being removed from Turner's table and saw that there was "residue" of chicken and/or ribs on the plate, but no empty bones on the plate. (He concluded that since no bones had been left on the plate, this confirmed that the plates had been used to carry food back to the table and then placed in a container or bag.) Feliciano stated that Golden Corral did not deny services to Turner because of his race. He gave an example when two Hispanic women had been expelled for the same conduct. The undersigned reviewed Respondent's Exhibit 4, entitled Investigative Memorandum FCHR number 201500480. The investigation conducted by FCHR appears to be thorough and comprehensive. All parties were interviewed, affidavits were collected, and a witness was interviewed. This is a de novo proceeding. Based upon the evidence presented, there does not appear to be any basis to dispute the investigative findings and recommendations of the agency, and the evidence presented during the final hearing before the undersigned was consistent with the information collected by FCHR during its investigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Turner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 November, 2015.
The Issue Whether Petitioner, a member of a protected class, was terminated from his position as a delivery person with the Respondent on or about September 28, 1991, on the basis of his race (Black), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent, Portion-Trol Foods, Inc., d/b/a Mother Butler Pies, is in the business of manufacturing and delivering pies to Denny's Restaurants, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner, a black male, was hired by Respondent on June 26, 1990. Petitioner was employed by Respondent as a delivery person, whose primary duty was delivering Respondent's pies to restaurants throughout the Central Florida area, which he did in 1990 and 1991. Petitioner's direct supervisor was Percival Gordon, a black male. Petitioner, like all other employees working under direct supervision, had been informed on several occasions regarding how to properly work and interact with restaurant personnel when delivering pies to the restaurants. Petitioner displayed no patience while interacting with restaurant personnel when he delivered pies. Beginning in early 1991, Petitioner began to act rudely and abrasively toward restaurant personnel with which he interacted when delivering pies to their restaurants. This improper conduct by Petitioner included being very loud and verbal in front of restaurant customers. He offended a restaurant hostess, a restaurant unit aide, and restaurant managers with his objectionable agressive behavior. He spoke rudely to everybody, and used profanity toward restaurant managers while in the restaurants. On one occasion he removed pies from a restaurant cursing, and destroyed customer pies by placing the pies on top of another in the hands of a restaurant cook. Petitioner's supervisor gave him verbal reprimands regarding his conduct in April and May, 1991. As supervisor of delivery persons, it was a job duty to routinely visit the restaurants to which the delivery persons he supervised delivered pies. During these visits Petitioner's supervisor would talk to the restaurant manager and other restaurant personnel in an effort to obtain feedback regarding the job performance of the delivery persons over which he had supervision. On June 5, 1991, Petitioner's supervisor visited two restaurants as part of his job duties. During these visits, management personnel of the restaurants approached Petitioner's supervisor, and voiced a complaint regarding Petitioner and a specific incident where Petitioner had delivered the wrong pies to each of the restaurants, and Petitioner's response to them. Petitioner's response was abusive and inappropriate in both instances. Both management persons told Petitioner's supervisor that due to Petitioner's inappropriate conduct, they did not want to see him back in their restaurant anymore. After being informed of these two most recent acts of improper conduct by Petitioner toward those individuals to whom he delivered pies, Petitioner was issued a written counseling review on June 8, 1991, which summarized the facts regarding these incidents of improper conduct. In this written counseling review, it was explained to Petitioner that he had already been issued several verbal warnings regarding his negative attitude and use of abusive, profane language toward restaurant personnel with which he interacted. Petitioner was warned that if such an incident occurred again, further disciplinary action would be taken against Petitioner. Respondent's Bakery Plant Manager reviewed the counseling review form issued to Petitioner, and prepared a memorandum which he gave to Petitioner. In this memorandum, it was reiterated to Petitioner that if there were "any further occurrences [sic] of the type of poor behavior described that it will result in further disciplinary action up to and including termination. You need to understand that this is very serious, and up to you to correct immediately." Despite the above-mentioned warnings from his supervisor, Petitioner continued to conduct himself inappropriately when interacting with restaurant personnel to whom he delivered pies. In September 1991, Petitioner engaged in another act of improper conduct. On this occasion Petitioner was delivering pies to a restaurant in Apopka, Florida. On this occasion, Petitioner first spoke with a cook on duty at the time. Petitioner told the cook that he had permission from Respondent's main office "to destroy or get rid of pies out of the case that don't [sic] supposed to be there." Petitioner did not at any time during his employment with Respondent have permission from Respondent's main office to remove customer's pies from restaurants and throw them away. Petitioner began to remove the customer's pies from the restaurant and stack them one on top of the other, into the hands of the cook. Petitioner then took the pies out of the cook's hands and put them in a tub used for bussing the tables of the restaurant. After verifying the incident, the General Manager spoke with Petitioner via telephone about the incident. During the conversation Petitioner got angry with the manager, and slammed down the phone. After receiving a report regarding this most recent incident, Petitioner's supervisor went to the restaurant in Apopka, and conducted a complete investigation into what took place. The supervisor and the Baker Plant Manager evaluated this most recent incident of improper conduct by the Petitioner, in light of his prior employment history with Respondent, and decided to terminate Petitioner based upon his continued improper conduct. Their decision was based upon the fact that Petitioner had received numerous warnings regarding his inappropriate conduct, and had failed to respond in a positive manner to any of these warnings. Petitioner offered only three unsubstantiated allegations as to why he believed he was terminated based upon his race. First, Petitioner alleged that when white delivery drivers employed by Respondent delivered pies to various restaurants, restaurant personnel would not make them wait as long as they would make him wait. However, Petitioner admitted that the restaurant managers and personnel, who he claimed kept him waiting longer than other white drivers, were not the managers of Respondent, Mother Butler Pies, but rather of Denny's Restaurants. Second, Petitioner alleged that he believed that he was terminated by Respondent based upon his race, because he was issued shirts with different people's names on it, which his wife had to stitch his name onto for identification purposes. Third, Petitioner claimed that he believed he was terminated based on his race due to an alleged incident in which a restaurant manager started a fight with Petitioner and subsequently Respondent did not want Petitioner "to go into the store to make a delivery because he [the restaurant manager] was having a problem with the employee. He [the restaurant manager] took it out on me". Petitioner admitted that the restaurant management personnel with whom he had problems were not the managers of Respondent, Mother Butler Pies. Petitioner offered testimony concerning his damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for Relief. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0320 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact. Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 8(in part), 11, 12, 14, 15, 16, 18, 19(in part), 21, 22, 24, 25 Rejected as irrelevant, immaterial or a comment on the evidence: paragraphs 4, 5, 6, 7, 8(in part), 9, 10, 13, 17, 19(in part), 20, 23 COPIES FURNISHED: Veerasammy Mangali (pro se) 5642 Pendleton Drive Orlando, Florida 32839 William Curphey, Esquire 205 Brush Street Tampa, Florida 33601 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Respondent's February 28, 1990 repeal of Rule 14-85.003(15)(b) was not reflected in the Respondent's original Notice of Rulemaking and was a change in the rule that affected the substance of the rule. This change was not supported by the record of the public hearing held on the rule amendment nor written comments submitted to the Respondent, nor was it in response to a proposed objection by the Joint Administrative Procedures Committee.
Findings Of Fact The Respondent is responsible for administering Florida laws respecting the sale of alcoholic beverages. Sales of alcoholic beverages are regulated in Florida through a licensing system. "Liquor" licenses authorize licensees to sell alcoholic beverages without regard to alcoholic content. Various categories of liquor licenses are issued by the Respondent. The two categories most pertinent to this proceeding are "quota" licenses and "restaurant" licenses. Quota licenses are available on the basis of one license per 2,500 in population for each county which permits such licenses (Some counties have different quotas established by Special Acts of the Legislature.). The term "quota" is derived from the fact that the issuing formula is based upon the decennial Federal census, and thus only a finite number of licenses are available. Section 561.20(1), Florida Statutes. Restaurant licenses are an exception to the quota scheme and are not limited in number. They are available to "any restaurant having 2,500 square feet of service area and equipped to serve 150 persons full-course meals at one time, and deriving at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages." Section 561.20(2)(a)3, Florida Statutes. There are approximately 3,000 outstanding quota licenses, and 2,000 outstanding restaurant licenses. Depending upon the specific terms of the license, quota license holders are authorized to sell liquor for off premises consumption. These are called "package" sales. Prior to the adoption of the amendment to Rule 7A-3.16, restaurant licenses issued after January 1, 1958, did not authorize package sales. Prior to the adoption of the amendment, the rule Provided: No licensee holding a special restaurant license issued after January 1, 1958, may sell alcoholic beverages for off premises consumption other than as may be Provided by special act. The prefix "SRX" shall be made a part of the license numbers of all special restaurant licenses issued after January 1, 1958, distinguishing them in identity from other licenses. The amendment which is the subject of this proceeding deleted the underlined portion of the rule. The effect of the amendment is to permit holders of restaurant licenses to make package sales so long as other criteria pertaining to the licenses are met. The Petitioner is a publicly owned Florida corporation which does business in Florida and five other states. Petitioner is engaged in the business of selling alcoholic beverages for on and off premises consumption. The majority of its business activities are in Florida, and Florida package sales represent more than half of the Petitioner's total business volume nationwide. The Petitioner holds forty-tow quota licenses issued by the Respondent. Quota licenses are transferable; and since they are limited in number, their market value frequently far exceeds the fees imposed by the Respondent. The market value of quota licenses held by the Petitioner in Dade and Broward Counties, Florida, is nearly two million dollars. The Petitioner's business is a very competitive one. When the petitioner is considering whether to invest in a new location, numerous factors are considered. These include demographics, traffic patterns, population, zoning, and the number and location of competitors. The number and location of competitors is the single most important factor. Since package sales constitute a majority of the Petitioner's business volume, the proximity of competitors who offer package sales is paramount. Because under the Respondent's rules restaurant licensees have been prohibited from making package sales, the location of restaurant licensees has not been of concern to the petitioner in determining where to locate. The Petitioner may have made different judgments about numerous of its locations if nearby restaurants were able to make package sales in competition with the Petitioner. No specific evidence was introduced from which it could be determined which if any of the Petitioner's locations would not have been opened, or which will suffer a competitive disadvantage as a result of the amendment to Rule 7A-3.16. Indeed, implementation of the amendment to the rule has been stayed by the courts, and no determination can be made as to which restaurant licensees might avail themselves of the opportunity of making package sales, and to what extent. The market value of the Petitioner's quota licenses and competition for the Petitioner's business outlets are affected by licensing considerations apart from whether restaurant licensees will be permitted to make package sales. As a result of the 1980 Federal census, numerous new quota licenses will be available in Dade and Broward Counties. These additional licenses, when issued, could have a substantial impact upon the value of the Petitioner's licenses, and the competitive advantages of the Petitioner's business locations. The Intervenor is the holder of a restaurant license issued by the Respondent. The amendment to Rule 7A-3.16 would permit the Intervenor to make package sales of alcoholic beverages. The economic impact statement adopted by the Respondent in support of its amendment to Rule 7A-3.16 provides in pertinent part as fellows: This rule will likely stimulate competition in the market place by permitting more outlets for off premises sale of alcoholic beverages. There would be no appreciable impact upon the state's revenue, but should there be any impact it is estimated that more liquor would be sold rather than less. Competition upon existing package stores would be in proportion to the proximity and competitive power of special restaurants permitted to sell by the package. In developing this statement, various officials within the Respondent met on several occasions to discuss the potential economic impact of the amendment to the rule, and representatives of the regulated industry were consulted. Hearings were conducted by the Respondent before the amendment was adopted. Representatives of the industry, including a representative of the Petitioner, appeared at hearings and stated their positions with respect to the amendment. The economic impact statement accurately portrays the potential economic impact of the amendment. It does not appear that the effect of competition upon existing package stores can be estimated with any precision. Indeed, the Petitioner did not present evidence and could not present evidence with respect to the precise impact that the amendment would have upon any of its locations.
