The Issue The issue is whether Respondent, Steak n Shake Restaurant (“Steak n Shake”), violated section 760.08, Florida Statutes,1/ by discriminating against Petitioner based on his race.
Findings Of Fact Petitioner is a white male who lives in Ormond Beach, Florida. Petitioner testified that he had been a regular customer of the Steak n Shake at 120 Williamson Boulevard in Ormond Beach for about four years. Petitioner entered the restaurant on March 30, 2015, and was seated by server Amanda Hobbs, a black female. Petitioner testified that neither Ms. Hobbs nor any other server would wait on him. He saw Ms. Hobbs take the order of a black couple who came into the restaurant after he did. Petitioner complained to the manager, Mark Regoli, a male of mixed race. Petitioner testified that he told Mr. Regoli that the service had been poor for several months, and complained about not being served on this occasion. Petitioner stated that Mr. Regoli accused him of being “loud,” but explained that he is hearing-impaired and may sometimes speak in a loud voice. Petitioner testified that Mr. Regoli became angry, “got up in my face,” and blocked Petitioner from leaving the restaurant. Petitioner testified that he left the restaurant. It was only later that he learned that the police had been called by someone at Steak n Shake. Counsel for Steak n Shake did not cross-examine Petitioner. Steak n Shake called no witnesses. Steak n Shake’s documentary evidence consisted of hearsay witness statements that cannot be considered in the absence of admissible evidence that the hearsay may be said to supplement or explain. Therefore, Petitioner’s narrative is the only sworn, admissible evidence before this tribunal. Though Petitioner’s testimony was clearly a self-serving version of the events that occurred at the Steak n Shake on March 30, 2015, it is the only version of events that may be considered under the rules of evidence. Petitioner’s testimony lacks complete credibility only when one compares it with the excluded witness statements of the Steak n Shake employees. If one considers Petitioner’s testimony standing alone, as this tribunal must, the worst one can say is that it is one-sided and incomplete. This state of affairs is not the fault of Petitioner, who was under no obligation to tell anything other than his side of the story. Petitioner represented himself and so is not entitled to attorney’s fees. Petitioner may be entitled to an award of costs.
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, Steak n Shake Restaurant, committed an act of public accommodations discrimination against Petitioner, Virgil W. Phillips; Prohibiting any future acts of discrimination by Respondent; and Awarding Petitioner his costs. DONE AND ENTERED this 29th day of April, 2016, 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 29th day of April, 2016.
The Issue The issues in this matter are whether Respondent, Walmart, violated section 760.08, Florida Statutes, by discriminating against Petitioner based on his race; and, if so, the relief to which Petitioner is entitled.
Findings Of Fact On March 6, 2017, Petitioner, who is Hispanic, visited the Walmart in his neighborhood in Tampa (store #5255) to make several purchases. Petitioner is a frequent customer of the store, shopping there every two to three days. After selecting several items and placing them in a cart, Petitioner proceeded to the self-checkout area. When he arrived at the self-checkout section, Petitioner found all the registers in use by other customers. So, he waited for an opening. As he stood with his cart, Petitioner observed a Walmart employee, Dipti Vora, stationed in the self-checkout area. Ms. Vora was working as the self-checkout “hostess” to assist and monitor the customers using the self-checkout registers. Petitioner was familiar with Ms. Vora who he had seen on previous visits. Petitioner recalled that they exchanged pleasantries while he waited for a free register. While he waited, Petitioner noticed another Walmart employee, who he later learned was Sara Revelia, walk up to Ms. Vora. As Ms. Revelia approached Ms. Vora, Petitioner saw her raise a finger to her eye, and then point her finger at him. Petitioner also observed Ms. Revelia give him a nasty look. Petitioner interpreted Ms. Revelia’s actions as instructing Ms. Vora to “keep an eye on him” because she suspected that he might steal something. Petitioner believed that Ms. Revelia, who appeared to be white, pointed at him solely because he is Hispanic. Petitioner expressed that he did not see Ms. Revelia point at any other customers. Petitioner particularly noted that Ms. Revelia did not point to any other white customers who were waiting in the self-checkout area. Petitioner was so upset by Ms. Revelia’s presumptuous gesture that he abandoned his cart in the self-checkout area and left the store without purchasing his items. Petitioner declared that he has never returned to that Walmart store and has no plans to ever shop there again. Petitioner was very embarrassed and disturbed by Ms. Revelia’s action singling him out to be watched. Petitioner is convinced that Ms. Revelia racially profiled him because he is Hispanic. Based on her demeanor, Petitioner declared that Ms. Revelia acted in a very arrogant and authoritative manner and prejudged his character. When questioned by Walmart at the final hearing, Petitioner conceded that he did not hear any words pass between Ms. Vora and Ms. Revelia. Nor did any Walmart employee (including Ms. Revelia) accuse him of stealing or instruct him to leave Walmart. However, Petitioner firmly believes that Ms. Revelia perceived him as a thief or a bad person who might not pay for the items he was carrying. Petitioner asserts that Ms. Revelia’s action was an “injustice,” and Walmart must take responsibility for its employee’s actions. Walmart denied that it failed to allow Petitioner access to its facility or services or took any actions based on his race. Walmart further asserts that at no time did it ask Petitioner to leave or refuse to sell him the items he wished to purchase. Walmart specifically refuted Petitioner’s allegation that an employee suspected that he was going to steal from the store or singled him out as a thief. Walmart presented the testimony of Ms. Vora, the employee who was assigned as the “hostess” in the self-checkout area at the time of Petitioner’s visit. Ms. Vora had worked in store #5255 for approximately 12 years. She was familiar with Petitioner and had regularly seen him shopping at that Tampa Walmart. Ms. Vora recalled the incident involving Petitioner. Ms. Vora also remembered the encounter with Ms. Revelia, the employee who allegedly pointed at Petitioner. Ms. Vora testified that while Petitioner was standing in the self-checkout area, another customer with a baby stroller was also waiting to use a register. Just at that moment, Ms. Revelia walked up to her and alerted her to watch the woman with the stroller. Ms. Vora explained that the woman had placed several items in the open compartment below the stroller seat. Ms. Revelia was cautioning her to ensure that the woman did not neglect to scan all the items she brought to the register, specifically including the items in the lower section of the stroller. Ms. Vora stated that Ms. Revelia was not pointing at Petitioner. Instead, she was signaling Ms. Vora to monitor the woman pushing the stroller, who was standing just ahead of Petitioner. Ms. Vora also recalled that, after Ms. Revelia walked away, Petitioner approached her and asked who was the employee who had just talked to her. At that time, Ms. Vora did not know Ms. Revelia’s name because she was visiting from another store. Ms. Revelia testified at the final hearing. Ms. Revelia is an Asset Protection Manager for Walmart. She principally works in a Walmart store in Largo, Florida. However, she does visit the Tampa store regularly as part of her area of assignment. Ms. Revelia explained that her job duties include overseeing inventory preparation and compliance at Walmart facilities, as well as assisting with the detection and apprehension of shoplifters. She was specifically trained on how to “shrink” financial losses at Walmart facilities due to theft. Ms. Revelia relayed that she was instructed to constantly watch for any suspicious behavior from Walmart customers. Ms. Revelia recalled working at the Walmart Petitioner visited on March 6, 2017. However, she did not remember talking to Ms. Vora, pointing at a customer, or seeing Petitioner while he waited in the self-checkout area. Instead, Ms. Revelia conveyed that she was primarily focused on helping store #5255 prepare for its annual inventory. Although she did not recall specifically pointing out a customer to Ms. Vora, Ms. Revelia described suspicious situations she frequently sees that cause her alarm. Such activity includes customers who wear heavy jackets in summer or carry open backpacks. In addition (and particularly relevant to this matter), Ms. Revelia is also cognizant of customers who bring in strollers that are equipped with a compartment or shelf under the baby seat. Ms. Revelia expounded that, in her experience as an asset manager, she has personally witnessed customers place goods and items in a stroller’s “undercart” and forget (either intentionally or unintentionally) to scan them at the self- checkout register. Despite not remembering the incident involving Petitioner, Ms. Revelia offered that, if she did walk by the self-checkout area and saw a stroller with items stored under the seat, she very well may have instructed the hostess to “keep an eye on” that customer. Conversely, Ms. Revelia denied that she would point at any Walmart customer simply because he or she was Hispanic. Neither would she automatically suspect that a customer would steal from Walmart because of their race. Ms. Revelia adamantly denied that she took any discriminatory action against Petitioner. As additional evidence that Walmart did not discriminate against Petitioner, Elsie Rodriguez, the store manager for store #5255, testified that approximately 70 percent of the customers who shop at her store are Hispanic. Furthermore, in light of the populace it serves, store #5255 specifically offers Spanish based foods and other products catering to the Latino community. Consequently, Ms. Rodriguez asserted that it would not make sense for Walmart, or any of its employees, to discriminate against its Hispanic customers. Walmart also maintains a Statement of Ethics and Discrimination, as well as a Harassment Prevention Policy, which prohibit discrimination by its employees based on race and national origin. Ms. Rodriguez also testified that store #5255 does not hold itself out as, nor does it include, a cafeteria, dining facility, or restaurant. Ms. Rodriguez explained that store #5255 is a “Neighborhood Market.” The store does not offer food principally for consumption on its premises. Neither does it contain an area where customers can sit and dine. Instead, all the facility sells is groceries. In response to the testimony from the Walmart witnesses, Petitioner insisted that the Walmart employees were not telling the truth. Petitioner vigorously maintained that Ms. Revelia was pointing at him and not another customer with a baby stroller. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Walmart discriminated against Petitioner based on his race. Accordingly, Petitioner failed to meet his burden of proving that he was denied full and equal enjoyment of goods or services in a place of public accommodation in violation of the FCRA.
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, Walmart, is not a “place of public accommodation” under the facts of this case; and, even if it were, that Respondent did not unlawfully discriminate against Petitioner’s race. Petitioner’s Petition for Relief should be dismissed. DONE AND ENTERED this 10th day of July, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 10th day of July, 2018.
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2014.
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioner 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.1/
Findings Of Fact Parties and Jurisdiction Petitioner is an African-American female who resides in the State of Missouri, who visited Orlando, Florida, in June 2011, and who had a reservation for accommodations at Lake Eve Resort beginning on June 24, 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. Petitioner arrived in Orlando on June 17, 2011, where she stayed at the Hilton Grand International Resort (Hilton Grand) with her immediate family. Her reservation at the Hilton Grand ended on June 24, 2011, when she had reservations at the Lake Eve Resort (Resort) to join her extended family on the occasion of the Boss-Williams family reunion. On June 22, 2011, Petitioner traveled to the Resort to visit with her extended family who had arrived the previous day. When Petitioner entered the lobby of the Resort, she was met by two police officers and two women who did not immediately identify themselves. One of the police officers asked her if she was with the Boss-Williams family reunion. Petitioner inquired why she was being asked if she was with the family reunion, and was told that her party was being evicted. One of the two women with the officers, later identified as Lisa Catena, a Resort manager, asked Petitioner her name, and instructed her staff to cancel Petitioner’s reservation. Thereafter, Petitioner made several calls to members of her extended family to inform them of this turn of events. She first called her sister, Boniris McNeal, who was not on-property at the time, informed her of the eviction, and told her to return to the Resort. Next, Petitioner called her cousin, Denise Austin, who was also off-property at the time, informed her of the eviction, and told her to return to the Resort. Petitioner spent the next several hours in the lobby of the Resort talking with various family members as they returned to the Resort, or came through the lobby from other parts of the Resort, and were told they were being evicted, and waiting with family members while Resort staff worked to reverse credit-card charges and refund monies paid for room reservations. During this time period, Petitioner observed the two police officers, Ms. Catena, and the other unidentified woman, as they approached each African-American person who entered the lobby and asked whether they were with the Boss-Williams reunion. Petitioner observed that the police officers and Resort managers did not stop any non-African-American persons. Petitioner contacted a Westgate resort property in Orlando and was able to secure rooms for the family members who were evicted from the Resort. Respondent provided Petitioner no reason for canceling her Resort reservation and evicting her family from the premises. Petitioner filed a Complaint of Discrimination with the Commission on January 3, 2014. The Complaint alleges that the most recent date of discrimination was June 22, 2011. In a related case, the undersigned has found that some members of Petitioner’s family timely filed complaints of discrimination related to and arising out of the same incidents as those alleged by Petitioner. See Harrington v. Eve Management, Inc., Case No. 14-0029 (Fla. DOAH May 28, 2014). The undersigned, sua sponte, officially recognizes the Recommended Order in that matter, pursuant to Florida Administrative Code Rule 28-106.213(6).
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 Petitioner Denise Strickland; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 24th day of June, 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 24th day of June, 2014.
The Issue The issue in this case is whether Respondent discriminated against Petitioners on the basis of race or national origin at Respondent's place of public accommodation.
Findings Of Fact At issue in these consolidated cases are the complaints by Petitioners Mitchell and Beck that they were subjected to discrimination when they visited Respondent's Orlando restaurant on December 3, 2011. Petitioner Mitchell is an African-American male, and Petitioner Beck is an Asian female. They live in Tampa and have been dating for approximately five years. Prior to December 3, 2011, they had visited BB King's in Orlando several times--four or five times, according to Petitioner Mitchell. On each of those occasions, they had enjoyed the restaurant's services and were not subjected to any form of discrimination. BB King's is a southern-style barbecue restaurant and live music venue. Respondent operates four BB King's locations. The Orlando restaurant is the largest, occupying 14,000 square feet spread over two stories, with three bars, a stage, and a dance floor. The restaurants are named after the famous African- American blues musician, B.B. King. At the Orlando restaurant, B.B. King and other blues musicians (such as Ray Charles and Howlin' Wolf, both African-Americans) are portrayed in paintings and images on the exterior walls, and inside the restaurant on the stage, on the walls, on the menus, and on the glassware. BB King's has a racially diverse clientele. A large majority of Respondent's customers are African-Americans. Respondent has a non-discrimination policy, prohibiting discrimination on the basis of race, color, religion, sexual orientation, ethnicity, or other classification. All of Respondent's employees receive training on the company's non- discrimination policy, as part of the extensive initial-hire training process in the company's policies and procedures. The Orlando BB King's is at its busiest on Saturday nights, particularly between 7:00 p.m. and 10:00 p.m. During this time, there is usually a wait for a table. The waiting time ranges from five minutes to two hours. Respondent's seating policies and procedures were at the heart of the incident of which Petitioners complained. The seating policies and procedures in effect as of December 3, 2011, established through the credible testimony of Respondent's witnesses and corroborating exhibits, are described below. Respondent does not offer reservations in the traditional sense of reserving a table to accommodate a particular number of customers at a particular time. Instead, Respondent offers a variation of traditional reservations, called priority seating. Priority seating arrangements can be made in advance by telephone, online, or in person, for a particular group expecting to arrive at a particular time. While priority seating does not guarantee that a table will be ready when the group arrives, if an appropriate-sized table is not ready, the group is given first-in-line status, so they would receive the next available table of the size needed to accommodate the group, ahead of any walk-ins who are waiting for the same-sized table. Respondent limits the number of priority seating arrangements it will make for a given time slot. It is common, therefore, for priority seating slots to be filled in advance, particularly for the restaurant's peak days and peak times. When persons request tables for time slots with no more priority seating openings, those persons are told that they are welcome to come to the restaurant as walk-in customers. Through its seating policies and procedures, Respondent seeks to strictly control seating and to discourage customers from seating themselves. That is particularly important when the restaurant is very busy, for several reasons: to maintain order; to rotate the seating of customers among the different server zones so as to evenly spread the work load among the servers; to ensure that priority seating is provided to those who timely avail themselves of that option; and to maximize use of seating capacity when demand is at its peak. To help control seating, upon entering the Orlando BB King's restaurant, customers are informed by a sign at the reception station: "Please Wait To Be Seated." Another "Please Wait To Be Seated" sign tops a pole at the front of the velvet- roped area demarking the line for customers waiting to be seated. To reinforce the message of its "Please Wait To Be Seated" signs, Respondent places "Reserved" signs on each vacant table. Respondent's witnesses acknowledged that these tables are not actually reserved in the traditional sense of being held for a particular group with reservations, although tables may be held for priority seating, a term used interchangeably with reservations.2/ But the signs are not used for that purpose; instead, the signs are used as a means to discourage impatient customers from trying to seat themselves despite being told to wait to be seated. Another seating policy employed by Respondent is referred to as the 75 percent rule. Under this rule, unless and until 75 percent of a group wanting to sit together at one table is physically present at the restaurant, customers who are part of the group are not seated and are not even put on a waiting list nor provided a pager for a table. In other words, if two customers tell the hostess that they are a part of a group of four and are waiting for two other persons to arrive, those two customers will not be seated at a table for four, nor will they be put on the wait listing and given a pager for a table for four. Respondent's witnesses credibly explained that this rule served the purpose of maximizing use of available seating capacity, which is particularly important on busy nights during peak hours. The night in question--December 3, 2011--was a Saturday night during tourist season. Petitioners decided to drive from Tampa to Orlando, a prime tourist destination location, to return to the BB King's restaurant they had previously enjoyed. Petitioners did not make seating arrangements in advance. Instead, on the way to the restaurant, Petitioner Beck called BB King's on her cell phone to try to make reservations, between one and two hours before Petitioners expected to arrive. Petitioner Beck spoke with "Robbie," who told her that she could not make a reservation, but that they were welcome to walk in. Respondent's witnesses credibly explained that by the time Petitioners attempted to make seating arrangements, the priority seating limits surely would have been reached. Thus, it was reasonable and consistent with Respondent's seating policies for Petitioner Beck to be told that she could not make a reservation, but that they were welcome to walk in. Petitioner Beck acknowledged that the person with whom she spoke did not know the race or national origin of either Petitioner. Petitioners proceeded on to BB King's, arriving between 8:00 p.m. and 9:00 p.m. The restaurant was very busy. In addition to the normal crowds at this peak time, the restaurant was hosting three special events for Nike: one Nike event was for a group of 50 people, between 6:30 p.m. and 9:00 p.m.; the second Nike event was for a group of 41 people, between 7:00 p.m. and 9:00 p.m.; and the third Nike event was for another group of 50 people, between 7:30 p.m. and 10:30 p.m. Petitioners checked in with the hostess at the front reception station. Petitioners were greeted in a friendly manner by the hostess and were given a pager that would signal when their table was ready. Within five to ten minutes, the pager signal was activated. Petitioners returned the pager to the hostess, who turned Petitioners over to a runner, the BB King's employee who escorts guests from the reception area to their tables and provides them with menus and silverware. The runner led Petitioners to a table for two. However, Petitioners refused the two-seater table offered to them, and informed the runner that they needed a table for four, as they were waiting for another couple who had not arrived yet.3/ Petitioners must have told the hostess that they were a party of two, not four, when they first checked in, so as to be put on the waiting list and given a pager for a two-seater table. Petitioners failed to explain why they did not inform the hostess upon checking in that they were waiting for two more persons and needed a table for four, instead of waiting until they saw the table to which they were led to tell the runner that they actually needed a table for four. The logical inference from Petitioners' description (and from Petitioner Beck's evasiveness described in endnote 3) is that Petitioners developed the story that they were expecting another couple after they were led to the table for two, perhaps because they were not happy with the location of the two-seater table and preferred the location of the four-seater tables, or perhaps because they just wanted more elbow room. The credibility of Petitioners' story is undermined by the following facts: Petitioner Mitchell admitted that there was no set time established to meet this other couple at the restaurant; the other couple that was supposed to meet Petitioners never showed up during the hour that Petitioners estimated they were at the restaurant in total; Petitioners did not offer testimony by the other couple to corroborate their story; and Petitioners did not even name the other couple when asked in discovery for names of persons with knowledge of the facts underlying Petitioners' complaints. Ironically, the new information that Petitioners were waiting for another couple, belatedly offered to the runner in an attempt to switch to a four-seater table, triggered the 75 percent rule, which ultimately was the source of Petitioners' dissatisfaction. The credible evidence establishes that if Petitioners had accepted the two-seater table they were offered, they would have been served, as they had been on prior occasions. Instead, pursuant to the 75 percent rule, Petitioners were escorted by the runner back to the reception area, and were told to let the hostess know when the couple they were waiting for had arrived. Petitioners asked to be put on the waiting list and be issued a pager for a table for four, but the hostess followed the 75 percent rule and reasonably refused to do so. No evidence was offered to prove that the 75 percent rule was used as a means to discriminate against Petitioners because of their race or national origin. Petitioners offered no evidence to prove that any other customers who did not have 75 percent of their group present were seated at tables, or were put on the waiting list and issued pagers. Petitioners offered no evidence to prove that the 75 percent rule was not applied uniformly to all other customers regardless of their race or national origin. Petitioners offered no evidence that the 75 percent rule was waived for any customers who were not members of Petitioners' protected race or national origin classes. After Petitioners were returned to the reception area and told to let the hostess know when the rest of their party arrived, Petitioners went to the bar area to wait. Petitioner Beck ordered a drink, and was served without incident. Petitioners observed an African-American couple seated at a nearby table for four. When the African-American couple was finishing their meal and about to vacate their table, they asked Petitioners if they wanted to be seated at the table, and Petitioners gladly took them up on their offer. The African-American couple who offered Petitioners their table left and Petitioners remained seated at the table for four. Petitioners did not have menus or silverware, because they were not seated by a runner. A server approached the table, but did not stop to take Petitioners' orders. The server seemed upset according to Petitioners, perhaps because they had seated themselves, contrary to Respondent's seating policies and procedures. Then a different server came to the table. According to Petitioners, that server took their orders for drinks and dinner, and brought them drinks. Petitioners believe that the first server must have reported them to the hostess, because the same hostess who had told Petitioners previously to wait until the rest of their group arrived came over to tell Petitioners that they needed to get up from the table. Someone who Petitioners described as a manager also came up to tell Petitioners that they needed to vacate the table because the rest of their group had not arrived. At hearing, Petitioners testified that they did not know the name of the manager with whom they spoke. Petitioners claim that they told the unidentified manager that they should not have to leave the four-seater table, pointing out that there was a Caucasian couple seated at a four- seater table. According to Petitioners, the manager told them he did not have the heart to ask the other couple to move. Petitioner Beck testified that the manager made this comment while Petitioners were waiting in the bar area before seating themselves. Petitioner Mitchell, on the other hand, claimed that this conversation occurred after the manager asked them to get up from the four-person table. Petitioners' testimony in this regard was not credible. When Petitioners were asked to vacate the table from which they had seated themselves, after arguing for a brief period, Petitioners ultimately agreed to vacate the table. They then decided to leave the restaurant. Apparently they were allowed to leave without paying for the drinks they had ordered and been served while seated at the table for four, and apparently they abandoned the dinner orders they had placed. It was clear from Petitioners' testimony that they did not understand Respondent's seating policies. Petitioners seemed to be under the misimpression that Respondent had a policy against seating couples at tables for four. Instead, according to the credible testimony of Respondent's witnesses, couples are often seated at tables for four early in the evening, but that as the evening progresses into the peak hours, the hostess begins to direct couples to two-seater tables, using the four-seater tables for groups of three or four. This maximizes use of the available seating, a reasonable and necessary policy for a busy restaurant/entertainment venue. The testimony of Respondent's witnesses was consistent in this regard, and included the credible testimony of Ms. Olivo, who was the hostess on December 3, 2011, but who has not worked for Respondent since 2012. The credible evidence established that Petitioners were asked to vacate the table for four, not because there were only two of them, but rather, because their story that they were waiting for another couple triggered the 75 percent rule, and because, after they were told to wait until the rest of their group arrived, they chose to ignore those instructions and seat themselves. Petitioners failed to prove that Respondent's practice of sometimes seating couples at tables for four and sometimes directing couples to tables for two was a choice made on the basis of race or national origin, as opposed to a reasonable judgment for maximizing use of seating capacity based on how busy the restaurant is. Petitioners acknowledged that the Caucasian couple they claim to have pointed out to the manager was not the only couple they observed seated at a table for four. To the contrary, Petitioners admit that the couple who made the nice gesture that, unfortunately, was contrary to Respondent's seating policies, of offering Petitioners "their" table as they were getting up to leave was an African-American couple. Petitioners offered no evidence to prove how long either the Caucasian couple or the African-American couple seated at tables for four had been at the restaurant, whether they were seated with all of their party present, whether they were waiting for others to join them, or whether they had improperly seated themselves. These couples might have arrived hours earlier, well before the peak time, and lingered to enjoy their food and the live entertainment. That Petitioners admitted to having observed both a Caucasian couple and an African-American couple at tables for four is evidence that Respondent was not using its seating policies as a means to discriminate, but rather, applied its policies in a non-discriminatory manner to accommodate customers both within and outside the protected classes who were not shown to be similarly situated to Petitioners. In fact, Petitioners admitted that when the two of them previously visited Respondent's Orlando restaurant, they had been seated at tables for four. Petitioners also contend that the unidentified manager who asked them to vacate the table informed them that the table was "reserved" for a group of three Caucasian customers who had priority seating arrangements. According to Petitioners, this threesome arrived at the restaurant after Petitioners. Petitioners do not contend that the three Caucasian customers did not have 75 percent of their group present; mathematically, the threesome being seated at a table for four must have had at least 75 percent of their group present. Moreover, Petitioners offered no evidence that the three customers did not have priority seating arrangements. Accordingly, Petitioners' description does not support Petitioners' assertion of discrimination, but rather, a consistent application of Respondent's seating policies and procedures. Petitioners were not entitled to be seated or to be placed on a waiting list for a table for four, because their claim to be waiting for another couple triggered the 75 percent rule; Petitioners ignored the instructions to wait for the rest of their group, and violated another seating policy by seating themselves. Petitioners did not attempt to make seating arrangements in time to secure priority seating, as the Caucasian threesome apparently had done. Thus, the Caucasian threesome was entitled to priority seating over walk-in customers on the waiting list for a four-seater table. Petitioners had not yet qualified to be placed on the walk-in waiting list. Consistent with Respondent's seating policies, Petitioners were properly asked to vacate the table at which they had seated themselves. As with the 75 percent rule, no credible evidence was offered to prove or suggest that the do-not-seat-yourself rule, announced to all customers by the sign at the reception station, was applied in a discriminatory fashion. Respondent's witnesses credibly testified that it is common for customers to try to skirt the seating policies by seating themselves when a table is vacated, particularly on a busy Saturday night, such as on December 3, 2011. Management and staff are all on alert to look for tell-tale signs, such as customers sitting at a table without menus or silverware. When this occurs, the hostess or a manager will inform these customers that they cannot seat themselves, and they are asked to leave the table. The credible testimony established that customers of all races and national origins are asked to leave tables when they violate the seating policies by seating themselves. Petitioners also argue that the use of the word "reserved" on signs placed on tables is inconsistent with Respondent's seating policy that does not allow tables to be reserved in the traditional sense. However, Respondent reasonably explained its seating policies and procedures, including its use of the "reserved" signs. Whether Respondent's seating policies are clear or confusing, good or bad, or make sense to Petitioners are not questions for determination in this proceeding. Instead, the question is whether Respondent's actions taken pursuant to its seating policies and procedures were motivated by intentional discrimination. Petitioners did not prove that Respondent used "reserved" signs as a means to discriminate against Petitioners because of their race or national origin. Petitioners do not contend that they were subjected to any form of direct discrimination, such as racial or ethnic slurs or derogatory comments of any kind. Instead, Petitioners Mitchell and Beck proved only that they are African-American and Asian, respectively; that they could have enjoyed all of the benefits offered at BB King's had they accepted the table for two they were offered; that they were not seated at a table for four because they claimed to be waiting for another couple to join them; and that they were asked to leave a table at which they had seated themselves. No credible proof was offered from which to infer that Respondent's actions were motivated by intentional discrimination based on race and national origin. For reasons explained in a series of motions and Orders (see endnote 1), the undersigned exercised the authority provided in section 120.569(2)(f), Florida Statutes (2012), and Florida Rule of Civil Procedure 1.380(b)(2), to assess costs against each Petitioner in connection with sanctions imposed for their discovery violations. By Order issued July 11, 2013, Petitioner Mitchell was ordered to pay $1,067.50 to Respondent to reimburse a portion of the reasonable attorney's fees incurred in attempting to obtain discovery and enforce orders compelling discovery. By separate Order issued July 11, 2013, Petitioner Beck was ordered to pay $1,098.00 to Respondent to reimburse a portion of the reasonable attorney's fees incurred in attempting to obtain discovery and enforce orders compelling discovery. As of the final hearing, these assessments had not been paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: In DOAH Case No. 12-3992, that the Florida Commission on Human Relations enter a Final Order: dismissing the Petition for Relief filed by Petitioner Freddie Mitchell; and assessing $1,067.50 against Petitioner Mitchell for discovery violations, to be paid to Respondent, pursuant to the Order entered on July 11, 2013; and In DOAH Case No. 13-517, that the Florida Commission on Human Relations enter a Final Order: dismissing the Petition for Relief filed by Petitioner Genevieve Abad Beck; and assessing $1,098.00 against Petitioner Beck for discovery violations, to be paid to Respondent, pursuant to the Order entered on July 11, 2013. DONE AND ENTERED this 14th day of May, 2014, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2014.
The Issue Whether Respondent unlawfully discriminated against Petitioner by failing to reasonably accommodate her handicap, in violation of Florida?s Fair Housing Act.
Findings Of Fact Petitioner is the owner of Unit No. 710 (“Unit”) in the Sixth Moorings Condominium, located in Miami, Florida. Petitioner lived there for approximately 11 years. She is not currently living in the Unit. Respondent is the condominium association responsible for the operation and management of the Sixth Moorings Condominium. In early 2010, Petitioner suffered a stroke and underwent heart surgery. It is undisputed that as a result of her illness, Petitioner is “handicapped” for purposes of the Fair Housing Act.4/ Petitioner spent several months in hospitals and nursing homes recovering from her stroke and surgeries. When she was released from these facilities, she did not resume living in the Unit. She testified that this was because she could not go up a curb or steps, and because the condominium?s elevator frequently was out of order.5/ She moved into a ground floor apartment a few blocks away from the Sixth Moorings Condominium. Petitioner is not able to perform many basic tasks, such as grocery shopping, driving, cleaning her apartment, taking out the garbage, or retrieving her mail. Consequently, she decided to invite her nephew, Charles Alsberg, to move into the Unit, where he would be only a few minutes away from the apartment in which she was residing, and thus could serve as her caretaker. Alsberg moved into the Unit in or around August 2010. Petitioner did not reside in the Unit with Alsberg. She testified that even though he is a family member, she would not live in the Unit with him because she is “an elderly woman from a different generation and [she] would not live with a young man unless he was [her] biological son.” In late 2010, Respondent?s President, John Koble, contacted Petitioner about Alsberg living in her Unit. Petitioner asked Koble to allow Alsberg to reside in the Unit so that he could serve as her caretaker, but Koble told her that because she was not residing there, Alsberg was considered an unauthorized guest in violation of the condominium?s restrictive covenants, and that he therefore must move out. Nonetheless, Alsberg continued to reside in the Unit for several more months, until he became ill and was hospitalized. Following his release in August 2011, Alsberg returned to live in the Unit. At this point, Respondent——this time, through counsel——sent Petitioner a letter stating that she was violating the restrictive covenant prohibiting unauthorized guests, and demanding that Alsberg vacate the unit. On September 13, 2011, Petitioner?s attorney sent a response letter requesting that, due to restrictions on Alsberg?s activity as a result of his illness, he be allowed to remain in the Unit for approximately 60 days. By correspondence dated September 15, 2011, Respondent agreed to allow Alsberg to remain in the Unit through November 12, 2011. At hearing, Petitioner acknowledged that Respondent granted her request to allow Alsberg to stay there during his recuperation. Notwithstanding this agreement, Alsberg did not vacate the Unit until sometime in early 2012, several months after the November 12, 2011 deadline. During this time, Respondent sent numerous pieces of correspondence that Petitioner characterized as “harassing” and “threatening,” regarding enforcement of the condominium?s covenants and rules. Alsberg finally vacated the Unit after Respondent sent a “final notice” letter. Currently, Alsberg is residing in an apartment approximately four blocks from Petitioner?s apartment and is serving as her caretaker. Koble testified that he was sympathetic to Petitioner?s circumstances, but it was imperative that Respondent consistently enforce the restrictive covenants for the benefit of all unit owners. Koble noted that other unit owners also wanted to allow unauthorized guests to live in their units, and that if Respondent relaxed enforcement of the covenant for Petitioner, it would be forced to do so for others. The undersigned credits this testimony. Koble also testified, credibly, that if Petitioner were residing in her unit, Respondent would have granted an accommodation of the covenant to allow Alsberg to live there for the purpose of serving as her caretaker.6/ The evidence establishes that Petitioner did not request any accommodation from Respondent that was necessary for her equal opportunity to use and enjoy the Unit; rather, the purpose of Petitioner?s request that Respondent not enforce the restrictive covenant against her was to enable her nephew to live in the Unit.
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 finding no unlawful discrimination by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 29th day of May, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 29th day of May, 2012.
