The Issue The issue is whether Respondent, Townsend Seafood, violated section 760.08, Florida Statutes (2018),1/ by discriminating against Petitioner based on her race and/or her sex.
Findings Of Fact Petitioner is a black woman who lives in Jacksonville, Florida. Petitioner testified that she frequently waits at a bus stop adjacent to a strip mall on Townsend Boulevard in Jacksonville, across the street from a Publix Supermarket. In 2017, Townsend Seafood occupied the end of the strip mall nearest the bus stop. Townsend Seafood was a seafood market and restaurant. Petitioner testified that Ahmed Al Janaby, the apparent proprietor of Townsend Seafood,3/ repeatedly accosted her on the public walkway near the bus stop. In early May 2017, Mr. Al Janaby demanded that Petitioner remove a Publix grocery cart from the bus stop. Petitioner responded that she needed the cart because she has a chronic back disease and was unable to carry the several bags of groceries she had in the cart. Furthermore, the cart was on public property, not Mr. Al Janaby’s premises, and Petitioner knew that a Publix employee would retrieve the cart after she got on the bus. On Memorial Day, 2017, Petitioner stopped by Publix on her way home from festivities downtown. As she stood on the public walkway near the bus stop, Mr. Al Janaby came out of his premises and demanded that Petitioner move. When Petitioner declined, Mr. Al Janaby began insulting her choice of clothing, stating that she looked like a “whore.” Petitioner responded by calling Mr. Al Janaby’s mother a whore. At that point, Mr. Al Janaby spat at Petitioner. On July 4, 2017, Mr. Al Janaby again confronted Petitioner on the public walkway near the bus stop, demanding that she move. On this occasion, Mr. Al Janaby used what Petitioner called “the N-word.” When she threatened to call the police, he retreated to his business, but not before again spitting in her direction. On August 21, 2017, Mr. Al Janaby assaulted Petitioner with a broom, which resulted in Petitioner’s toe being broken. This incident also occurred on the public walkway near the bus stop. Petitioner testified that she had no choice but to use the bus stop near Mr. Al Janaby’s business. The bus stop itself was not covered, and the public walkway at the strip mall was the only place to seek refuge from the sun on hot days. Petitioner did most of her shopping in that area, and frequented one business in the same strip mall as Townsend Seafood. She did not shop or eat at Townsend Seafood. Judy Slonka, a white friend of Petitioner’s, testified that she once stood on the public walkway while waiting for the bus on a day when the heat index was over 100 degrees. Mr. Al Janaby emerged from Townsend Seafood and hit her with a broom, saying that she was obstructing the entrance to his business. Petitioner testified that since the events described by her and Ms. Slonka, Townsend Seafood has relocated from the end of the strip mall to an interior storefront. Neither woman has had a problem with Mr. Al Janaby since he moved his business away from the bus stop. Petitioner’s testimony was credible as to the facts of the events she described. Ms. Slonka’s testimony was likewise credible. As the undersigned explained to Petitioner at the conclusion of the hearing, the problem is that the events they described do not meet the statutory definition of discrimination in a “place of public accommodation,” because they occurred on the public walkway outside of Townsend Seafood. Mr. Al Janaby certainly had no right to accost these women on a public walkway, but this was a matter for local law enforcement, not the FCHR.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Townsend Seafood did not commit an act of public accommodation discrimination against Petitioner, Shirley P. Williams, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of July, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2018.
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint dated August 6, 2004, and, if so, what action should be taken against Respondent.
Findings Of Fact Based upon observation of the witness and her demeanor while testifying in person, documentary materials received into evidence, and the entire record compiled herein, the following relevant and material facts are determined: At all times material hereto, Respondent, Dale Hill, d/b/a D and R BBQ and Catering, was not licensed, nor had he been licensed to operate a public food service establishment in the State of Florida by DBPR. Victoria Bagley, senior sanitation and safety specialist with DBPR, is certificated in food management; special fire inspection; standardized public lodging, the Food Code; public food service laws; and rules of the State of Florida. Ms. Bagley has conducted approximately 750 inspections annually during the last three years of her 14-year tenure with DBPR. On July 18, 2004, during an inspection of the premises, Ms. Bagley found Respondent was operating D and R BBQ and Catering without the required license. This is a critical item violation. A critical item violation is a provision of the Food Code, that, if in noncompliance, is more likely than other violations to contribute to food contamination, illness, or environmental health hazard and is denoted in the Food Code with an asterisk. Rule 1-201.10(b)(19), Food Code. The July 18, 2004, inspection found a lack of hot and cold running water at the required fixtures. This is a critical item violation. The July 18, 2004, inspection found there was not a conveniently located handwash sink. This is a critical item violation. By clear and convincing evidence, Petitioner proved each allegation in the Administrative Complaint filed against Respondent in this case.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent, Dale Hill, d/b/a/ D and R BBQ and Catering, violated Rules 5-103.12, 5-204.11, 6-401.10, and 6.202.15, Food Code; Florida Administrative Code Rule 61C-1.004(2)(d); and Subsection 509.241(1), Florida Statutes (2004); Imposing an administrative penalty against Respondent, Dale Hill, in the amount of $500, per critical item violation, for a total of $2,000, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk; and Requiring Respondent, Dale Hill, to attend an education program sponsored by the Hospitality Education Program, at Respondent's expense. DONE AND ENTERED this 27th day of February, 2006, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 27th day of February, 2006. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Dale Hill D & R BBQ & Catering 4460 Tallevast Road Sarasota, Florida 34243 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Washington, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent committed the violation alleged in Petitioner's Public Accommodations Complaint of Discrimination and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a black woman. On March 27, 2007, Petitioner went shopping at the Wal- Mart Supercenter located at 9300 Northwest 77th Avenue in Hialeah Gardens, Florida (Store). This was Petitioner's "favorite store." She had shopped there every other week for the previous four or five years and had had a positive "overall [shopping] experience." At no time had she ever had any problem making purchases at the Store. At around 5:00 p.m. on March 27, 2007, Petitioner entered the Store's electronics department to look for two black ink cartridges for her printer. In her cart were several items she had picked up elsewhere in the store (for which she had not yet paid). Because the cartridges she needed were located in a locked display cabinet, Petitioner went to the counter at the electronics department to ask for assistance. Maria Castillo was the cashier behind the counter. She was engaged in a "casual conversation," punctuated with laughter, with one of the Store's loss prevention officers, Jessy Fair, as she was taking care of a customer, Carlos Fojo, a non-black Hispanic off-duty lieutenant with the Hialeah Gardens Police Department. Lieutenant Fojo was paying for a DVD he intended to use as a "training video." The DVD had been in a locked display cabinet in the electronics department. A sales associate had taken the DVD out of the cabinet for Lieutenant Fojo. It was Store policy to require customers seeking to purchase items in locked display cabinets in the electronics department to immediately pay for these items at the electronics department register. Lieutenant Fojo was making his purchase in accordance with that policy. Two Store sales associates, Carlos Espino and Sigfredo Gomez, were near the counter in the electronics department when Petitioner requested assistance. In response to Petitioner's request for help, Mr. Espino and Mr. Gomez went to the locked display cabinet to get two black ink cartridges for Petitioner, with Petitioner following behind them. Ms. Castillo and Mr. Fair remained at the counter and continued their lighthearted conversation, as Ms. Castillo was finishing up with Lieutenant Fojo. Petitioner was offended by Ms. Castillo's and Mr. Fair's laughter. She thought that they were laughing at her because she was black (despite her not having any reasonable basis to support such a belief). She turned around and loudly and angrily asked Ms. Castillo and Mr. Fair what they were laughing at. After receiving no response to her inquiry, she continued on her way behind Mr. Espino and Mr. Gomez to the display cabinet containing the ink cartridges. When Mr. Espino arrived at the cabinet, he unlocked and opened the cabinet door and removed two black ink cartridges, which he handed to Mr. Gomez. Petitioner took the cartridges from Mr. Gomez and placed them in her shopping cart. Mr. Espino tried to explain to Petitioner that, in accordance with Store policy, before doing anything else, she needed to go the register in the electronics department and pay for the ink cartridges. Petitioner responded by yelling at Mr. Espino and Mr. Gomez. In a raised voice, she proclaimed that she was "no thief" and "not going to steal" the ink cartridges, and she "repeated[ly]" accused Mr. Espino and Mr. Gomez of being "racist." Instead of going directly to the register in the electronics department to pay for the cartridges (as she had been instructed to do by Mr. Espino), Petitioner took her shopping cart containing the ink cartridges and the other items she intended to purchase and "proceeded over to the CD aisle" in the electronics department. Mr. Espino "attempt[ed] to speak to her," but his efforts were thwarted by Petitioner's "screaming at [him and Mr. Gomez as to] how racist they were." Lieutenant Fojo, who had completed his DVD purchase, heard the commotion and walked over to the "CD aisle" to investigate. When he got there, he approached Petitioner and asked her, "What's the problem?" She responded, "Oh, I see you too are racist and I see where this is coming from." Lieutenant Fojo went on to tell Petitioner the same thing that Mr. Espino had: that the ink cartridges had to be taken to the register in the electronics department and paid for immediately ("just like he had paid for his [DVD]"). Petitioner was defiant. She told Lieutenant Fojo that she would eventually pay for the cartridges, but she was "still shopping." Moreover, she continued her rant that Lieutenant Fojo and the Store employees were "racist." "[C]ustomers in the area were gathering" to observe the disturbance. To avoid a further "disrupt[ion] [of] the normal business affairs of the [S]tore," Lieutenant Fojo directed Petitioner to leave and escorted her outside the Store. In taking such action, Lieutenant Fojo was acting solely in his capacity as a law enforcement officer with the Hialeah Gardens Police Department. Once outside the Store, Lieutenant Fojo left Petitioner to go to his vehicle. Petitioner telephoned the Hialeah Gardens Police Department to complain about the treatment she had just received and waited outside the Store for a police officer to arrive in response to her call. Officer Lawrence Perez of the Hialeah Gardens Police Department responded to the scene and met Petitioner outside the Store. After conducting an investigation of the matter, Officer Perez issued Petitioner a trespass warning, directing that she not return to the Store. At no time subsequent to the issuance of this trespass warning has Petitioner returned the Store (although she has shopped at other Wal-Mart stores in the area). While Petitioner has been deprived of the opportunity to shop at the Store, it has been because of action taken, not by any Store employee, but by Hialeah Gardens law enforcement personnel. Moreover, there has been no showing that Petitioner's race was a motivating factor in the taking of this action.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing Petitioner's Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2006.
