The Issue The issues in this case are whether Respondents unlawfully discriminated against Petitioners on the basis of race, or retaliated against them for exercising a protected right, or both, in violation of the Florida Fair Housing Act.
Findings Of Fact Because no evidence was admitted into the record at the final hearing, the undersigned cannot make any findings of fact. § 120.57(1)(j), Fla. Stat. (“Findings of fact shall be based … exclusively on the evidence of record and on matters officially recognized.”).
Recommendation Based on the foregoing Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondents not liable for housing discrimination and awarding Petitioners no relief. DONE AND ENTERED this 27th day of October, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2020. COPIES FURNISHED: Antonio Carraway Whang Carraway 1406 Southwest Osprey Cove Port St. Lucie, Florida 34986 (eServed) Jillian Sidisky, Esquire Stefanie S. Copelow, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue What affirmative relief, if any, should be granted petitioner for an unlawful (sexually discriminatory) employment practice engaged in by respondent, her employer? Background On March 8, 1983, after probable cause was found and efforts to conciliate were unsuccessful, Barbara S. Dunford ("petitioner") filed with the Florida Commission on Human Relations ("Commission") a petition for relief from an unlawful employment practice allegedly engaged in by respondent Holiday Inns, Inc. ("Holiday Inn") , her former employer. On March 18, 1983, the Commission mailed a notice to Holiday Inn notifying it that the petition had been filed. The notice referred to the Commission's procedural rules and advised that an answer to the petition must be filed within 20 days of the date the notice was mailed. No answer to the petition has been filed. On March 18, 1983, this case was referred to the Division of Administrative Hearings for assignment of a hearing officer to conduct Section 120.57 proceedings. Hearing was set by Hearing Officer Marvin Chavis for March 4, 1983, then--on petitioner's unopposed motion, reset for July 20, 1983. Subsequently, Holiday Inn filed an unopposed motion for continuance, and hearing was reset for October 10, 1983. In October, both parties requested a continuance to allow for further settlement negotiations. The case was thus continued, again, and reset for December 27, 1983. At hearing on December 27, 1983, petitioner failed to appear, due to an apparent misunderstanding. The hearing was then continued and, ultimately, reset for July 25, 1984. In the meantime, Hearing Officer Chavis ended his employment with the Division of Administrative Hearings, and this case was transferred to the undersigned. At the outset of hearing on July 25, 1984, Holiday Inn stipulated that respondent was terminated from her employment in November, 1981, and that her termination constituted an unlawful employment practice under the Human Rights Act of 1977, now codified as Sections 760.01-760.10, Florida Statutes (1983). Thus the sole issue for the determination is what affirmative relief, if any, petitioner is entitled to under the statute. Both parties presented evidence on this issue. Petitioner testified in her own behalf and Petitioner's Exhibit No. 1 was received into evidence. Holiday Inn presented the testimony of Tom Davis, who, in 1981 was the Director of Human Resources for Holiday Inn's Orlando Region. No transcript of the hearing has been filed. The parties filed proposed findings of fact by August 28, 1984. Those proposed findings incorporated in this recommended order are adopted; otherwise they are rejected as unsupported by the weight of the evidence or as unnecessary to resolution of the issue presented. Based on the evidence adduced at hearing, the following facts are determined:
Findings Of Fact Underlying Facts of Unlawful Employment Practice Holiday Inn stipulates that it unlawfully terminated petitioner on November 17, 1981, and that her termination constituted an unlawful employment practice under the Human Rights Act of 1977. In effect, Holiday Inn has admitted the truth of the underlying material allegations of fact contained in the Petition for Relief filed by petitioner in March, 1983. This same result would have been compelled in any event. Commission Rule 22T-9.08(4), Florida Administrative Code, requires the filing of an answer within 20 days of service of the petition. Holiday Inn failed to file an answer to the petition. By operation of this rule, failure to file a timely answer is "deemed to constitute an admission to the material facts alleged in the petition." 22T-9.08(4)(d), Fla.Admin.Code. Those allegations of material fact, contained in the petition for relief, now deemed, admitted, are set forth below: Complainant [petitioner] began employment in the position of Maid with Respondent [Holiday Inn] in May, 1981 [at the Holiday Inn at 626 Lee Road and I-4, Orlando, Florida]. Mr. Stephen Holmes began employment in the position of Houseman, in July, 1981. Both Complainant and Mr. Holmes were supervised by Ms. Helen Gilboy, Respondent's Executive Housekeeper. Ms. Gilboy was delegated the authority to take disciplinary action against her sub- ordinates. Complainant reported to Ms. Gilboy that Mr. Holmes was sexually [sic] harassing her by continuously making unwelcome sexual advances, placing his hands on her, showing her sexually lews [sic] pictures, and telling her sexually offensive jokes. No action was taken by Respondent or its agent, Ms. Gilboy, prior to Complainant's termination, to investigate these allegations or to ensure in the future that the work environment would be free from sexual harassment. Two co-workers of Complainant, Ms. Mary Morse and Ms. Brenda Foster, substantiated Complainant's allegations regarding sexual harassment by Mr. Holmes during working hours, and Ms. Morse substantiated Complainant's state- ment that Complainant reported such incidents to Ms. Gilboy but that no corrective action was taken. On November 15, 1981, Complainant requested that she be permitted to leave work early because she was upset by Mr. Holmes' sexually offensive conduct towards her. The assistant Housekeeper, Ms. Terri Longhorn, granted Complainant's request to leave work early. complainant was not scheduled to work on November 16, 1981. When Complainant reported for work on November 17, 1981, Ms. Gilboy informed Complainant [sic] that she voluntarily terminated her employment when she left work early on November 15, 1981, without permission. Respondent's policy provides that an employee who is absent three consecutive days without permission is subject to immediate dismissal for cause. According to Respondent's policy, even if Complainant left work early without permission Complainant's actions would not provide sufficient cause for dismissal. Complainant would not have left work early on November 15, 1981, but for the fact that Mr. Holmes had created a hostile working environment for Complainant and Complainant's requests for corrective action went unheeded by Respondent. Complainant's actions in leaving work early were reasonable under the circumstances. (Petition for Relief, dated March 8, 1983) II Affirmative Relief In November and December, 1981, Tom Davis, in his capacity as Regional (Orlando) Human Resources Director for Holiday Inn, investigated petitioner's complaint of sexual discrimination and wrongful termination. On or about December 7, 1981, and January 5 or 9, 1982, he met petitioner at his office to discuss her accusations. Holiday Inn contends that, on both occasions, Mr. Davis--based on his existing knowledge of petitioner's work environment or his investigation of her allegations--admitted the validity of her complaint and offered to reinstate her to her position, pay her full back pay and benefits, and discipline the two offending male employees. Holiday Inn asserts that she, on both occasions, rejected the offer. This contention is rejected as self serving, uncorroborated, and inconsistent with the tone and content of Mr. Davis' letter to the petitioner, dated January 8, 1982. In that letter, Mr. Davis states that he had investigated petitioner's complaint and contacted the witnesses whom she had listed. His letter is defensive in tone, admits to no wrongdoing by Holiday Inn or its employees, and conveys no offer of restatement. He concludes, in effect, that her recollection of the alleged incidents is uncorroborated and not supported by his findings. He downplays the seriousness of the alleged improprieties but indicates that those employees involved were disciplined for their behavior. His assertion--in the letter-- that petitioner's complaint was, essentially, unfounded, conflicts with his later testimony at hearing that, when petitioner filed her initial complaint, he suspected and later confirmed that her allegations were true. Petitioner filed her complaint of sex discrimination on April 15, 1982. On June 17, 1982, petitioner, Mr. Davis, and Alvin Frasier, an employee of the Commission on Human Relations, met at Mr. Frasier's Orlando office to discuss petitioner's complaint. At that meeting, Mr. Davis offered to reinstate petitioner to her former position, with full back pay and benefits. Petitioner rejected the offer, insisting that the offending employees be fired. Her insistence was based on her desire to retaliate against them and see that they "were punished." Mr. Davis indicated to him that both male employees had been reprimanded and put on "final notice," which meant that if either employee committed a similar offense, he would be fired. (One of them, Steve Holmes, subsequently committed a similar offense and was fired.) Under these circumstances, the disciplinary action taken against the two employees was reasonable and constituted a good faith attempt by Holiday Inn to prevent the reoccurrence of such infractions. Mr. Davis' offer of reinstatement is admitted by petitioner. Between November 17, 1981 (when petitioner was wrongfully terminated) through June 17, 1982 (when the offer of reinstatement and back pay was made) petitioner attempted to secure and hold other employment. During that period, she received $750.00 in unemployment compensation and earned $100.00 delivering trucks for Don Mealey Chevrolet, an automobile dealer in Orlando. At the time she was fired by Holiday Inn, she was receiving a salary of $140.00 a week based on a 40-hour work week. Accordingly, between November 17, 1981, and June 17, 1982, petitioner suffered a net loss of salary--due to her unlawful termination- -of $3,070.00. (28 weeks X $140.00 $3,920.00; $3,920.00 - $850.00 $3,070.00) Petitioner is obligated to pay her attorney, Howard L. Garrett, a reasonable attorney's fee for his representation throughout this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Human Relations issue an order requiring Holiday Inn Offer to reinstate petitioner to her former or a substantially equivalent position; Pay petitioner $3,070.00 in back pay; Pay petitioner a reasonable attorney's fee, the amount to be determined in supplementary proceedings; Cease end desist from again engaging in unlawful employment practices of this nature. DONE and ENTERED this 21st day of September, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 323,01 (904) 88-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1984.
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 the Florida Commission on Human Relations and the Division of Administrative Hearings have jurisdiction pursuant to Section 760.34, Florida Statutes, to consider Petitioner's Petition for Relief; and Whether Petitioner timely filed his Petition for Relief with the Florida Commission on Human Relations.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Petitioner contracted to purchase a condominium, "unit 206 in Building 425 at Serravella at Spring Valley" from Respondent. For reasons not relevant to the issues presented for determination, closing was deferred; and on December 22, 2006, Petitioner signed and submitted an "Addendum to Contract" to Respondent that sought "to revise contract closing date to 2/28/2007." Sometime in late December 2006, a telephone conversation took place among Steve Myers, a realtor for Serra Villa, Petitioner, and Barefield. Barefield was in Alabama, and Myers and Petitioner were in Florida on a speakerphone. Barefield advised Petitioner that the addendum would not be accepted by Respondent. Barefield and Petitioner did not speak to each other after this December telephone conversation. All communication was accomplished through third parties. Subsequent to Respondent's refusal to accept Petitioner's addendum, there is lengthy correspondence and litigation involving the parties. For some time after Respondent rejected Petitioner's addendum, Petitioner desired to purchase the condominium and, apparently, indicated so in various offers communicated by his attorneys to Respondent. If an unlawful discriminatory act occurred, the determination of which is not an issue presented for determination, the act occurred in December 2006. Petitioner's Housing Discrimination Complaint dated September 17, 2008, and signed by Petitioner on September 22, 2008, was filed with United States Department of Housing and Urban Development more than one year after the alleged act of discrimination. On November 6, 2008, Petitioner sent a four-page fax transmission to Lisa Sutherland, a FCHR employee, which included a Petition for Relief. On November 13, 2008, Petitioner sent a second fax transmission of seven pages to Lisa Sutherland. Apparently, this second transmission included a Petition for Relief. On December 4, 2008, Petitioner sent a third fax transmission addressed to "Mrs. Crawford/Lisa Sutherland." While the fax transmission cover sheet is dated "11-13-08," the report of transmission shows that this 11-page transmission was sent on "12/04 15:24." The Petition for Relief forwarded by FCHR to DOAH was date-stamped "2008 DEC-4 PM 3:25."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR dismiss the Petition for Relief as being time-barred as a result of the late filing of Petitioner, Ricardo Vega's, Housing Discrimination Complaint. DONE AND ENTERED this 27th day of April, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard S. Taylor, Jr., Esquire 531 Dog Track Road Longwood, Florida 32750-6547 Barbara Billiot-Stage, Esquire Law Offices of Barbara Billiot-Stage, PA 5401 South Kirkman Road, Suite 310 Orlando, Florida 32819
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 the Hernando County Housing Authority (Respondent) unlawfully engaged in a discriminatory housing practice against Peggy Troiano (Petitioner) on the basis of her disability by refusing to provide Section 8 funding for a housing unit being occupied by Petitioner and the housing unit's owner, Petitioner’s daughter, Julia Williams.
Findings Of Fact At all relevant times, Petitioner was an individual participant in a tenant-based voucher arrangement under the Section 8 Housing Program funded by HUD and administered by Respondent. Petitioner is an individual claiming that she is disabled because of a toxic injury that requires her to live isolated in a non-toxic environment. Respondent does not contest Petitioner’s claim of disability and it is, therefore, found that Petitioner is disabled or handicapped within the meaning of applicable law. Julia Williams is Petitioner’s daughter who, at all relevant times, owned the house located at 15141 Pomp Parkway, Weeki Wachee, Hernando County, Florida (“15141 Pomp Parkway unit”). Ms. Williams is specially trained to deal with toxic injury and is paid through a federally-funded, consumer-directed program to provide assistance to Petitioner. Respondent is a public housing agency that administers the Section 8 Housing Program as part of the Housing and Community Development Act of 1974, which recodified the U.S. Housing Act of 1937. As a recipient of funding from HUD for its Section 8 Program, Respondent is required to comply with HUD Section 8 regulations, as well as all Federal, State, and local fair housing laws and regulations. In order to receive funding from HUD, Respondent is required to sign an annual contributions contract (ACC) wherein it agrees to follow the Code of Federal Regulations (C.F.R.). If Respondent does not follow the C.F.R. or HUD’s guidelines, HUD has the right to terminate Respondent’s Section 8 program funding. In addition, HUD could make Respondent repay any funding used for ineligible housing. On March 17, 2014, during the annual reexamination for her Section 8 voucher, Petitioner signed, under the penalty of perjury, a summary report which identified her as the only household member permitted to live in any unit under her Section 8 voucher. Around the time of the annual reexamination, Petitioner was living at a unit on Philatelic Drive with plans to move into and rent a unit at 15141 Pomp Parkway. The Pomp Parkway unit was owned, but not being occupied, by Petitioner’s daughter Julia Williams. In April of 2014, Petitioner asked Respondent for permission to rent the unit from her daughter. Petitioner and her daughter spoke with Respondent’s officials about her request. Generally, a public housing agency, such as Respondent, cannot approve a unit for participation in the Section 8 program if it is owned by a parent, child, grandparent, grandchild, sister, or brother of any member of the participant’s family. See 24 C.F.R. § 982.306. Respondent, however, ultimately approved Petitioner’s rental of the Pomp Parkway unit under the Section 8 program, even though it was owned by Petitioner’s daughter, pursuant to a limited exception under 24 C.F.R. § 982.306(d), which provides an express exception to the rule if “the [public housing agency] determines that approving the unit would provide reasonable accommodation for a family member who is a person with disabilities.” 24 C.F.R. § 982.306(d). Also, during April of 2014, Petitioner and Ms. Williams were working on constructing a caregiver suite for the 15141 Pomp Parkway unit and had discussions with Respondent’s staff about it. There are documents purportedly created during this time frame summarizing several conversations between Respondent, Petitioner, and Ms. Williams. The documents state that Respondent’s officials had a conversation with Petitioner and her daughter wherein they discussed the requirements for a live- in aide and that Petitioner and Ms. Williams were warned that Ms. Williams could never live in the 15141 Pomp Parkway unit. Respondent also contends that Petitioner and Ms. Williams were warned that, even if Ms. Williams was approved as a live-in aide, Ms. Williams could not live in the 15141 Pomp Parkway unit. On the other hand, Petitioner contends that the alleged conversations warning her that her daughter could not reside in the home did not occur during this time frame, and that she and her daughter continued to renovate the house to specifications suitable to accommodate Petitioner's disability with the expectation that her daughter would ultimately be able to reside in the home after renovations were complete. Upon consideration of the credibility of the witnesses and timing of the purported documents, the undersigned finds that the testimony and documents regarding these alleged April conversations are unreliable and do not support a finding that the conversations and warnings actually occurred during the April time frame. The evidence is also insufficient to support Petitioner's contention that Respondent was somehow responsible for Petitioner's expectation that her daughter would be able to both act as Petitioner's caregiver and live in the home while Petitioner was receiving rent vouchers under the Section 8 program. Petitioner was the only person that Respondent approved to live in the 15141 Pomp Parkway unit under her Section 8 voucher. In May of 2014, Petitioner’s daughter entered into a one-year residential lease with Petitioner and a Housing Assistance Payment Contract (HAP Contract) with Respondent. According to the HAP Contract, Petitioner was the only person able to reside in the 15141 Pomp Parkway unit without the express, written consent of Respondent. At the time the HAP Contract was signed, Petitioner advised Respondent that she would be the only person living in the unit. Ms. Williams, as the landlord, signed a check cashing agreement with Respondent wherein she agreed Petitioner would be the only person occupying the 15141 Pomp Parkway unit. Also, Petitioner’s income verification summary report provides that Petitioner is the only person allowed to live in a unit covered by her Section 8 voucher. In early May of 2014, Ms. Williams moved into the 15141 Pomp Parkway unit without notice to Respondent. Petitioner has never received written approval from Respondent to have Ms. Williams live and occupy the 15141 Pomp Parkway unit under the Section 8 voucher program. By letter dated June 17, 2014, Petitioner submitted an HCHA Live-in Aide Request Verification Form, along with letters from her doctor. Petitioner also requested that her daughter Julia Williams serve as her live-in aide. Approval for a live-in aide is a different process than the approval process to have someone added to the household. While Petitioner's request for a live-in aide stated that Petitioner was living at 15141 Pomp Parkway, it did not mention that Petitioner's daughter was the owner of the dwelling, nor did it include a specific request that Ms. Williams be allowed to move into and occupy the 15141 Pomp Parkway unit that she owned. Upon receipt of the written request for a live-in aide by Petitioner, Respondent began its investigation to determine whether Petitioner met the qualifications for a live-in aide and whether Ms. Williams met the qualifications to serve as a live- in aide. Respondent has implemented 24 C.F.R. § 5.403 into its written policy regarding live-in aides, which provides: LIVE-IN ATTENDANTS A family may include a live-in aide provided that such live-in aide: Is determined by the [public housing agency] to be essential to the care and well-being of an elderly person, a nearly-elderly person, or a person with disabilities, Is not obligated for the support of the person(s), and Would not be living in the unit except to provide care for the person(s). Under the C.F.R., a public housing agency is required to approve a live-in aide, if needed, as a reasonable accommodation for an elderly or disabled person. 24 C.F.R. § 982.316 (“The PHA must approve a live-in-aide if needed as a reasonable accommodation” to a family with an elderly or disabled person.). By letter dated June 27, 2014, Respondent notified Petitioner of the approval of her request for her daughter to serve as her live-in aide. Although Respondent was aware that a home occupied by an owner was not eligible for a Section 8 voucher at the time it gave its permission for Petitioner's daughter to serve as Petitioner's live-in aide, the letter did not speak to that issue. Rather, the June 27, 2014, letter, signed by Donald Singer, stated: Pursuant to your letter dated June 17, 2014 requesting a reasonable accommodation for a live in aide. Your letter also ask [sic] that the live in aide be your daughter, Julia Williams based upon her qualifications as presented. After reviewing the U.S. Department of Housing and Urban Development's (HUD) regulations for Live-in Aides and the Housing Authority's Section 8 Program Administrative Plan for Live in Aides our office has determined that your daughter, Julia Williams meets the program qualification(s) to act as your Live in Aide. Therefore our office is approving Julia E. Williams as your Live in Aide effective immediately. Should you have any questions regarding this action/letter please contact our office at 352-754-4160. By email on August 11, 2014, Petitioner notified Mr. Singer that she and her live-in aide, Julia Williams, intended to live at the 15141 Pomp Parkway unit. On August 11, 2014, Petitioner’s daughter Julia Williams was still the owner of the 15141 Pomp Parkway unit. Under 24 C.F.R. § 892.352, a unit being occupied by its owner is deemed “ineligible” and a public housing agency is prohibited from providing funding for such unit. The C.F.R. provides a limited exception for shared housing that allows an owner to occupy a unit funded by Section 8. Under that limited exception, however, the Section 8 participant cannot be a blood relative of the resident owner. 24 C.F.R. § 982.615(b)(3). Based upon the prohibition under the C.F.R. which forbids a public housing agency from funding a unit occupied by an owner who is a blood relative of the Section 8 participant, by letters dated August 22, 2014, Respondent notified Petitioner and Ms. Williams that the 15141 Pomp Parkway unit was “ineligible housing” that could not be funded. The letters also informed Petitioner that Julia Williams' approval as a live-in aide did not supersede HUD regulations and that, because Julia Williams was occupying the unit, Respondent was terminating the HAP contract effective September 30, 2014. The only reason Respondent terminated the funding for the 15141 Pomp Parkway unit was because the C.F.R. does not allow Respondent to continue funding a unit occupied by its owner. Prior to the August 22nd letters, Respondent was advised by HUD that Respondent did not have any discretion in funding “ineligible housing.” HUD approved the draft of the August 22nd letters. The evidence does not support a finding that either Respondent or HUD waived or should otherwise be prevented from applying the limitations and requirements of the law that a Section 8 participant cannot be a blood relative of the resident owner. Respondent would have been willing to continue Petitioner’s housing assistance as long as Petitioner met program requirements and the housing was deemed eligible housing under the C.F.R. through the issuance of a new three-bedroom voucher for a different unit, or by having Petitioner live in the 15141 Pomp Parkway unit without Ms. Williams both owning and occupying the unit. By letter dated August 27, 2014, Respondent provided Petitioner with a new Section 8 voucher and voucher packet information so that Petitioner could start searching for a new rental unit where Ms. Williams could continue to serve as Petitioner’s live-in aide under Petitioner’s Section 8 voucher. The new voucher was required to be returned to Respondent by September 30, 2014. There was no testimony that Petitioner returned the new Section 8 voucher to Respondent by September 30, 2014, or that Ms. Williams moved out of 15141 Pomp Parkway by that date. On September 4, 2014, before the funding was terminated for the 15141 Pomp Parkway unit, Petitioner filed a complaint for discrimination. Petitioner emailed a signed three-bedroom voucher on October 30, 2014, a month after funding under the new voucher expired, for the rental of the 15141 Pomp Parkway unit that had already been deemed ineligible housing as defined by 24 C.F.R. § 982.316. That voucher is not valid and the facts fail to support a finding that Respondent’s refusal to allow Petitioner to participate in the Section 8 voucher program while occupying a unit owned and occupied by her daughter was because of Petitioner’s disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED the 22nd day of May, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2015.
The Issue Whether Respondent, a place of public accommodation, violated Chapter 760 and Section 413.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Ricky Krell, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Dustin's Barbeque, which is a structure for public accommodation. On June 5, 2007, Petitioner, accompanied by his wife and his service dog, Zsa-Zsa, visited Respondent restaurant for the purpose of eating therein. Petitioner and his wife were seated and ordered their meal without incident. Zsa-Zsa was on a leash which was several feet in length, long enough to allow the dog to "sniff" other customers and food. Zsa-Zsa began "sniffing" contiguous customers and their food. The lease was stretched across the aisle between tables. On one occasion, a waitress almost tripped over the leash. Respondent's employees, who were familiar with service dogs having been in the restaurant, opined that the dog did not conduct itself as a trained service dog. As a result of the dog's activities and concern for the health and safety of other customers and employees, Respondent's on-site manager requested that Petitioner control the dog. Petitioner was unwilling or unable to control the dog, and the dog's inappropriate conduct continued. As a result, the manager asked Petitioner to take the dog outside. Petitioner would have been able to complete his meal if he had been able to control the dog or he had opted to take the dog outside and return to his meal without the dog. Petitioner refused the request to take the dog outside and became loud and used profanity. Petitioner finished his meal. The request that Petitioner remove the dog from the restaurant was reasonable under the existing circumstance and did not reflect a discriminatory act against Petitioner. The City of Melbourne police were called and when the officer arrived, she issued a trespass warning to Petitioner and his wife.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katherine Hurst Miller, Esquire Kelly V. Parsons, Esquire Cobb Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Ricky Krell 1889 Cedarwood Drive Melbourne, Florida 32935
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of race, national origin, or disability at Respondent’s place of public accommodation.
Findings Of Fact Respondent is a McDonald’s franchisee operating six McDonald’s restaurants in the Orlando area. At issue in this case is the restaurant referred to as the “Lockhart” store. The Lockhart McDonald’s is located on Orange Blossom Trail in Orlando, in a high-crime, low-income area. This McDonald’s has a history of problems with persons using the restaurant for purposes other than purchasing food and drink there to consume onsite. There has been a wide range of “other purposes” in the Lockhart McDonald’s history: sitting at the dining tables without ordering any food or drink; panhandling (asking customers if they have a spare dollar); bringing in drinks purchased elsewhere, topped off with refills stolen from the McDonald’s drink station; soliciting restaurant customers for prostitution; and using the bathrooms to ingest or inject illegal drugs, leaving behind used hypodermic needles and other paraphernalia. On two separate occasions, people overdosed on heroin in the bathrooms. To combat these problems, which hurt business, Mr. Vidler enlisted the help of his brother, an Orange County Deputy Sheriff, who conducted drug and prostitution stings to help clean up the restaurant. In addition, the Lockhart McDonald’s adopted a no-loitering policy, a no-solicitation policy, and a policy requiring that only food and drink purchased there may be consumed there. Notices of these policies are prominently displayed on signs at the restaurant. Respondent’s witnesses testified, credibly and consistently, that these policies are enforced uniformly and strictly, with the goal being to avoid the problems they have had with persons improperly using the restaurant’s facilities. As part of the enforcement procedure, if someone is observed seated at a table without any apparent McDonald’s food or drink items, after a few minutes a manager or other staff member will approach that person and politely inquire whether the person intends to make a purchase. Petitioner is a black woman who has been a customer at the Lockhart McDonald’s. She and her boyfriend, who is not black,2/ have gone there on occasion, made purchases, and enjoyed their meals, without incident. On the day in question, December 28, 2015, Petitioner and her boyfriend went to the Lockhart McDonald’s for breakfast. The restaurant was not very busy or crowded when they arrived, with perhaps one other customer in line and another customer seated at a table in the separate dining area. Petitioner went to the dining area, while her boyfriend went to the counter to place their order. The restaurant is fairly large, with physical and visual separation of the area where customers wait in line to place orders, pick up food, and get drinks at the drink station from the area where customers can go to sit at tables to consume their purchases. Behind the ordering counter on the employee side, there is a door used by employees to enter the dining area. Through a small window at the top of the door, a customer waiting in line at the counter might be able to glimpse a small portion of the dining area, but otherwise would not be able to see or hear what is going on in the dining area. Petitioner took a seat at a table by an outside window. She propped both of her feet up on the Corian window ledge and sat there gazing out the window. Eric Vidler, the operations manager of Respondent’s six restaurants, was in the Lockhart McDonald’s that morning. After Petitioner had taken her place by the window, Mr. Vidler and the Lockhart restaurant manager, Adam Allegroe, entered the dining area together to conduct a cleanliness walk-through. They saw Petitioner, taking note of her unusual positioning, with feet propped up on the windowsill,3/ staring out the window. They also noted that there was no sign of any McDonald’s food or drink purchases on the table or in her hands. After a few minutes, consistent with the restaurant’s policies and procedures, Mr. Vidler approached Petitioner and politely inquired whether she intended to make a purchase. She did not answer him.4/ Mr. Vidler and Mr. Allegroe testified that usually, when they make such an inquiry, the person will respond, but sometimes they do not respond. Since their goal is not to make a scene, offend, or embarrass anyone, under these circumstances they will usually walk away for a short period of time. If the person had no legitimate business there, then the person often will disappear at that point. Mr. Vidler and Mr. Allegroe retreated to the men’s and women’s bathrooms, where they spent three to five minutes conducting their cleanliness inspection. When Mr. Vidler and Mr. Allegroe returned to the dining area, Petitioner was still seated, positioned the same way, with her feet still propped up on the windowsill. She was still staring out the window, and still had no McDonald’s purchases on the table or in her hands. Mr. Vidler went back up to Petitioner, and following up on his prior statement to her, this time he told her, “Ma’am, if you are not going to be making a purchase today, then you are loitering and I need to ask you to leave.” Mr. Vidler testified credibly that this is how he always handles the second approach when the person does not answer his first inquiry. The message, though direct, was delivered in a calm tone. Mr. Vidler did not yell at Petitioner. He did not threaten to call the police or have her arrested. This time, Petitioner responded. She got up, flung a chair in Mr. Vidler’s direction with sufficient force so that the chair traveled some distance with all four chair legs four to six inches off the ground, until it fell against and partially on a half-wall that set off that portion of the dining area.5/ Petitioner also responded verbally, using an elevated voice to express her anger. Mr. Vidler said that she cursed, using a four-letter word. Although more than one year later he did not recall exactly which curse word or words she uttered, he did recall that her words were not nice. Mr. Allegroe corroborated Mr. Vidler’s recollection, testifying that Petitioner stood up, “slung” the chair in their direction, and “started speaking profanity.” (Tr. 83). She then left the restaurant. The testimony of Mr. Vidler and Mr. Allegroe describing their two encounters with Petitioner was corroborated by Shahanna Owensby, a guest services department manager for the Lockhart McDonald’s. Ms. Owensby was seated at a table in the dining area, working on pricing and tagging merchandise, when she noticed Petitioner. She observed Mr. Vidler and Mr. Allegroe conducting their cleanliness walk-through. She observed Mr. Vidler’s initial approach to Petitioner. She heard Mr. Vidler ask Petitioner if she was going to be making a purchase, and confirmed that Petitioner did not respond. She saw Mr. Vidler and Mr. Allegroe keep walking after that, back in the direction of the bathrooms. She observed Mr. Vidler approach Petitioner a second time, estimated at four to eight minutes later. She heard him tell Petitioner that if she was not making a purchase, he needed to ask her to leave. She saw Petitioner stand up, pick up a chair, and fling, throw, or toss it: “It was up in the air and it was off the ground, by her hand.” (Tr. 98). By the time of Petitioner’s stormy exit from the restaurant, a family--a woman with some younger children--had entered the dining area and was seated near Ms. Owensby. After Petitioner left, Ms. Owensby apologized to the family, who had witnessed the scene and had been exposed to the profanity used by Petitioner within their hearing range. After Petitioner left the restaurant, her boyfriend walked into the dining area with the food he had purchased. The boyfriend described what happened next: Jennifer, my wife, was not sitting at the table. I thought she was at the--in the bathroom. I put my tray on the opposite side of the table. I was sitting to the left, I guess, or the right. I was sitting on the other side. And that’s when I saw Mr. Vidler with a surprised face, you know, like wow-- Q. [Mr. Millan]. Uh-huh. A. --what happened here. So he approached me and he said that he didn’t know--that he didn’t know. And I asked him that he didn’t know what. He said that he didn’t know that she was my wife, that she was there with me. (Tr. 108). At that point, Petitioner (whom Robert Millan clarified is his girlfriend, not his wife) knocked on the restaurant window, signaling for him to come outside. He went out to her and asked what happened. She told him that that person [Mr. Vidler] offended her. When asked how he offended her, Robert Milan said that Petitioner responded as follows: She said he told her that what was she doing there, if she was going to buy food or if she was just going to sit there. And those were the same words that he told me that he told her.[6/] And then when I came back inside the store, I went and I asked him, you know, to explain to me what was going on. And he said that. You know, that--he said that he didn’t know that she was there with me. And he apologized to me. He asked me if he -- if he could go apologize to my wife, Jennifer. And I really told him that I think that was beyond apology because she was like, you know, angry. So he said, well here, I give you my card and you can call the office and see what, you know, we can do about it. (Tr. 109-110). For some unexplained reason (perhaps a mistake filling the order or perhaps a request for customized food), Petitioner’s boyfriend waited ten minutes at the ordering counter, where he was not able to see or hear the encounters in the separate dining area. He was not even aware that Petitioner had stormed out in anger, although he confirmed that she was, indeed, angry when he went outside. Robert Millan did call Respondent’s office, as suggested by Mr. Vidler, and spoke with the owner of the franchise. The owner also offered to apologize to Petitioner, but Robert Millan did not think she wanted to speak to anyone. The owner then offered a $50 gift card. The boyfriend said that he would ask Petitioner, but she refused the gesture. No evidence was presented of any racial statements made directly or indirectly to Petitioner, or of any racial overtones to any of the statements made directly or indirectly to Petitioner. The circumstantial evidence presented does not support an inference that Respondent intentionally discriminated against Petitioner based on her race. Instead, all of the circumstantial evidence supports an inference that Respondent did not discriminate against Petitioner on the basis of her race. Respondent has a no-discrimination, no-harassment policy that is enforced as to its employees, customers and potential customers. The Lockhart McDonald’s has a very diverse staff. A comparison of the number of restaurant employees who are members of the classes of white, black, or Hispanic, the largest category represented by the restaurant’s employees is black; the next- largest category is Hispanic; white employees are in the minority. As to gender, female employees outnumber male employees. Manager positions are spread among white and black males, and white, black, and Hispanic females. The operations manager in charge of Respondent’s six restaurants, Mr. Vidler, is a white male as is the restaurant’s manager, Mr. Allegroe. The other employee testifying at hearing, Ms. Owensby, is the restaurant’s guest services manager and she is a black female. The diversity of the restaurant’s staff is circumstantial evidence, though not particularly weighty evidence, suggesting a general absence of intent to discriminate on the basis of race.7/ More compelling circumstantial evidence was provided by Mr. Vidler, who is the individual accused of discriminating against Petitioner because she is black. Mr. Vidler testified with great sincerity that Petitioner’s accusation is not only unfounded, but it hits a particular sore spot with him. Although he is a white male, his daughter is half-black. He has experienced the pain of discrimination based on race, with unkind questions, or worse, directed to him or to his daughter, because their races do not match. This personal fact shared by Mr. Vidler is compelling circumstantial evidence giving rise to a inference that he would not intentionally discriminate against Petitioner based on her race. The evidence strongly supports a finding, and it is so found, that Mr. Vidler’s December 28, 2015, encounters with Petitioner were the reasonable implementation of Respondent’s reasonable policies for its Lockhart restaurant to ensure that persons using the restaurant’s facilities are there for the purpose of purchasing and consuming food and drink. The credible, consistent testimony of Mr. Vidler and Respondent’s other employees who testified is that the no-loitering policy is applied uniformly to all persons, regardless of race, nationality, gender, disability, or any other classification, who are not apparently customers in that they have no McDonald’s food or drink purchases. These persons are asked whether they intend to make a purchase, and if they do not respond in some fashion that they are indeed there to purchase food and/or drink, they are told that if they are not there to make a purchase, they are loitering and will have to be asked to leave.8/ Petitioner has only herself to blame for not making clear to Mr. Vidler that she was there with her boyfriend, who was in line at the counter ordering their breakfast. That would have ended the matter. That Mr. Vidler only took the action he did because he did not know Petitioner was there with her boyfriend was perhaps most convincingly established by Robert Millan’s testimony describing the utter surprise on Mr. Vidler’s face when he realized that Petitioner had, in fact, been waiting for someone who had been purchasing food. The undersigned finds as a matter of ultimate fact that Respondent did not intentionally discriminate against Petitioner based on her race (the only protected class proven at hearing) or any other classification that might have applied to Petitioner but was not proven at hearing.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner Jennifer M. Foster-Garvey. DONE AND ENTERED this 11th day of May, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2017.
