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 engaged in an unlawful discriminatory housing practice against Petitioner on the basis of her disability.
Findings Of Fact At all times relevant hereto, Petitioner, Joan Vassar, was an individual participant in a tenant-based voucher arrangement under the Section 8 Housing Program funded by the Department of Housing and Urban Development and administered by the Tallahassee Housing Authority (THA). Petitioner was a resident of The Lakes at San Marcos (The Lakes), an apartment complex located at 4768 Woodville Highway in Tallahassee, Florida. Respondent, CMP CHP San Marcos Ltd. (San Marcos), is the owner of The Lakes, which is managed by a company known as HSI. Petitioner has been diagnosed with fibromyalgia and has suffered multiple strokes. Petitioner is disabled for purposes of the Fair Housing Act. Beginning in August 2009, Petitioner rented apartment 1533 at The Lakes, a one-bedroom apartment on the third floor of building 15. Petitioner’s rent was paid directly to San Marcos by THA pursuant to Petitioner’s one-bedroom housing choice voucher. Petitioner had difficulty climbing the stairs to her third-floor apartment and often took breaks at each landing to rest. There was no elevator at The Lakes as an alternative means of accessing the third floor of building 15. By all accounts, Petitioner’s tenancy at The Lakes was peaceful and without incident. In 2011, Valarie Gosier-Coleman became the assistant manager of The Lakes. Petitioner described Ms. Gosier-Coleman as compassionate toward her. Ms. Gosier-Coleman occasionally disposed of Petitioner’s garbage for her and retrieved Petitioner’s mail. In May 2014, Petitioner reported to Ms. Gosier-Coleman that her health had declined, that she would need a live-in caregiver, and that she wished to move to a two-bedroom, first-floor apartment. On June 4, 2014, in response to Petitioner’s request, Respondent informed Petitioner in writing that two two-bedroom, first-floor apartments--1311 and 1413--would become available beginning August 1, 2014. Apartment 1413 was located in the building next to Petitioner’s existing apartment, and Petitioner indicated she would accept that apartment. HSI requires all occupants of an apartment to complete an application and be approved to rent. Petitioner brought her would-be caregiver to The Lakes to apply for apartment 1413. However, the caregiver was reticent to complete the financial information section of the application. Although she took the incomplete application with her when she left the office, the caregiver never submitted a completed application for the apartment. Shortly thereafter, Petitioner was offered apartment 1116, a one-bedroom first-floor apartment. On July 16, 2014, Petitioner rejected that apartment, sight unseen, as “too far in the back of the complex.” On July 31, 2014, Petitioner renewed her lease for apartment 1533. At that time, she wrote to management, “I do not want a (2) bedroom apt. any place except where I specified for personal reasons. I have been here for 5 years and am very secure and familiar with my neighbors in my building . . . . Plus, my family lives in this same building on the first floor.”1/ No other first-floor apartments became available at The Lakes between August and October 2014. Shortly after renewing her lease, Petitioner informed HSI that she desired to leave The Lakes. Petitioner requested to break her lease, which Respondent allowed. Respondent refunded Petitioner’s deposit in full.
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 this 22nd day of December, 2015, 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 22nd day of December, 2015.
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.
The Issue Whether Petitioner, Ann Marie Augustino, was denied copying services by Respondent, Kwikie Printing, because of her religion in violation of Pinellas County Code Section 70-214, when Kwikie Printing refused to print the GreenSong Grove, Inc.'s, newsletter, "Voices of the Grove."
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Ann Marie Augustino, is a self-proclaimed witch who follows the Wicca religion. Petitioner is a member of a religious organization, GreenSong Grove, Inc., a Florida not-for-profit corporation. Respondent, Kwikie Printing, operates a printing business in Pinellas Park, Florida. It operates a business which provides goods and services to the public. Among GreenSong Grove, Inc.'s, purposes, as stated in its Articles of Incorporation, are the following: to provide a place of worship to celebrate, support and teach the penance of the Pagan religion; to provide and disseminate information regarding Paganism and the Pagan faith to the general public, other religions and secular bodies in order to educate and inform. In furtherance of its stated corporate purpose, GreenSong Grove, Inc., regularly publishes a newsletter, "Voices of the Grove." For several years prior to the incident which gave rise to the complaint of discrimination, Respondent printed materials for Petitioner and GreenSong Grove, Inc. In addition to the "Voices of the Grove" newsletter, Respondent had printed business cards, hats, and T-shirts; all contained the GreenSong Grove, Inc., logo. In October 2001, Respondent's employees, including Patricia Hall, Respondent's manager, and her husband, Robert Hall, a part-time employee, had occasion to read portions of the "Voices of the Grove" newsletter and were offended by its content. On this occasion, the printing job, which was in progress when its content was discovered by Respondent, was completed as contracted, and the newsletter was delivered to a representative of GreenSong Grove, Inc. Petitioner did not pick up the October newsletter; however, the individual who picked up the newsletter was advised that the newsletter would no longer be printed by Respondent because of its content. In December 2001, Petitioner returned to Respondent's printing establishment seeking to have the newsletter printed; Respondent through the Halls advised Petitioner that Respondent would not print the newsletter because they found the contents offensive to their religious views. This was essentially confirmed by a witness who had accompanied Petitioner when she returned to Respondent's facility the following day and was again refused. Respondent, through the Halls, advised Petitioner that Respondent would print other non-offensive materials as it had done in the past. The testimony of Petitioner and the Halls is consistent regarding the stated purpose for Respondent's refusal to print the newsletter. In Petitioner's original Charge of Discrimination filed with the City of St. Petersburg, she states: "When I asked for an explanation, Rob Hall came out and stated that the letter was about Witchcraft and Paganism and he would not support those religious views since he was a born again Christian." Petitioner's testimony at the hearing and that of the Halls confirmed that the reason that the newsletter was not printed was due to its content. She further testified that she believed that the Halls' religious-based motivation for not printing her newsletter was a sincere exercise of their religious beliefs. Petitioner confirms that Respondent, through the Halls, offered to continue to perform other printing services for her. In addition, they offered to allow her to use a copier in their place of business on which she could print the newsletter. Petitioner offered no evidence, nor did she testify, that Respondent discriminated against her, personally, as opposed to their objection to the content of the material she sought to have printed on behalf of GreenSong Grove, Inc. Robert Hall testified that he believes the Bible speaks against witchcraft and produced an extensive list of Bible verses that support his contention. He further believes that the advocacy of witchcraft is against God and that printing the subject newsletter would be blasphemy. Patricia Hall testified that her religious beliefs are consistent with Robert Hall's and, in her capacity as Respondent's general manager, confirmed the decision not to print the newsletter. Respondent has, in the past, refused to provide printing services for individuals who presented materials that Respondent found offensive. Respondent would not provide services to any individual, regardless of the individual's religious preference, if the material submitted was found to be offensive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the public accommodations discrimination complaint against Kwikie Printing be dismissed. DONE AND ENTERED this 18th day of August, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2004. COPIES FURNISHED: Ann Marie Augustino 7139 62nd Street, North Pinellas Park, Florida 33780 W. Oliver Melvin, Compliance Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, Fifth Floor Clearwater, Florida 33756 Barbara J. Weller, Esquire Gibbs Law Firm, P.A. 5666 Seminole Boulevard, Suite 2 Seminole, Florida 33772 Drew A. Gardner, Esquire 8313 West Hillsborough Avenue, Suite 150 Tampa, Florida 33615 Leon W. Russell, Human Rights/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, Fifth Floor Clearwater, Florida 33756
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 The issue in this case is whether Respondent, a public lodging establishment, unlawfully discriminated against Petitioner, who is African-American, by refusing to provide her accommodations or service based upon race.
Findings Of Fact Petitioner Phyllis Phyl ("Phyl") is an African-American woman who resides in Boca Raton, Florida. Respondent G6 Hospitality, LLC, d/b/a Studio 6 ("Studio 6"), is the owner and operator of the Studio 6 Extended Stay Hotel located in Pompano Beach, Florida (the "Hotel"). Phyl arrived at the Hotel at around 1:30 p.m. on February 22, 2014. Previously, she had made a reservation for a two-night stay, booking a nonsmoking room with a queen bed. Phyl was aware that check-in time at the Hotel was 3:00 p.m., but she decided to take a chance that a room would be available for earlier occupancy. When Phyl attempted to register, however, the clerk informed Phyl that no rooms were available for early check in. Phyl elected to wait in her car, which was parked in the Hotel's parking lot. From there, she watched a black man enter the Hotel and walk out a few minutes later. Phyl assumed that he, too, had been told that his room was not ready. She did not, however, witness his attempt to check in (if that is what occurred), and therefore Phyl lacks personal knowledge of this man's transaction with the Hotel, if any.2/ Unhappy, Phyl walked around the Hotel grounds and peered through the window of an apparently vacant room, which she determined, based on her observation, was clean and ready for occupancy. Phyl might have been mistaken, for she could not see, e.g., the bathroom, but even if her assumption were correct, the fact is not probative of discriminatory intent. This is because a room is not "available" for guest occupancy at this Hotel until after a manager has inspected the room, deemed it "clean," and caused such information to be entered into the Hotel's computer system, at which point the front-desk clerk is on notice that the room is ready. Thus, there is a delay between the time the housekeeping staff finishes cleaning a room and the time the front-desk clerk is able to let the room to a guest. After peeking in the seemingly empty room, Phyl returned to her car, and soon she noticed a white couple enter the Hotel, from which they exited several minutes later. Phyl did not witness the couple's activities inside the Hotel. The man and woman got into their car and drove around the Hotel premises. Phyl followed. She watched the couple park, leave their car, and enter a room. She observed the man retrieve some luggage and bring his bags to the room. Phyl assumed that this couple had just checked in. Phyl returned to the Hotel lobby and inquired again about the availability of a room. This time the clerk told her a room was ready. Phyl checked in at 2:09 p.m. Phyl stayed two nights, as planned, and paid the rate quoted in her reservation. When she checked out on February 24, 2014, the clerk refunded the $25 security deposit Phyl had given the Hotel at check in, which was required because she wanted to pay cash for the room (and did). Phyl claims that the clerk was rude to her, and so she left without taking a receipt. Hotel business records show that on February 22, 2014, no guest checked in between Phyl's arrival at 1:30 p.m. and 2:09 p.m., when she herself checked in. The white man who (together with a female companion) seemed to have checked in while Phyl was waiting actually had checked in earlier that day, at 11:14 a.m. The undersigned rejects as unfounded Phyl's contention that the Hotel's records are unreliable and possibly fraudulent and instead accepts them as persuasive evidence. Ultimate Factual Determinations At the material time, the Hotel was a "public lodging establishment" within the reach of section 509.092, Florida Statutes, and a "public accommodation" as that term is defined in section 760.02(11). Thus, the Hotel is accountable to Phyl for unlawful discrimination in violation of the Florida Civil Rights Act if such occurred. The greater weight of the evidence, however, fails to establish that the Hotel refused accommodations or service to Phyl, or otherwise unlawfully discriminated against her. Rather, the Hotel provided Phyl the type of room she had reserved, at the quoted rate, for the length of stay she requested. Indeed, despite arriving 90 minutes before the Hotel's published check-in time, Phyl was able to get a room early, after waiting little more than half an hour. The Hotel's conduct, in this instance, cannot be faulted.
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 Phyl's Petition for Relief. DONE AND ENTERED this 22nd day of April, 2015, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2015.
The Issue Whether Respondent, a place of public accommodation, violated Section 760.08, 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, Shawn Sutton, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Golden Corral Restaurant, which is a structure for public accommodation. On July 8, 2007, Petitioner, accompanied by his parents, grandmother and siblings, visited Respondent restaurant for the purpose of eating therein. The total number in the group that accompanied Petitioner was approximately 15. Prior to July 8, 2007, Petitioner's family was a frequent customer of Respondent restaurant and had eaten there on approximately 50 occasions. There had never been a request for special accommodations for Shawn Sutton on any previous occasion. Respondent has a sign on the front door of the restaurant that reads as follows: "Please remain with your party until seated. For guests with special needs, please see the manager. Golden Corral." Respondent is a buffet restaurant. Patrons pay for meals upon entry and prior to being seated. Respondent has a seating policy that requires all persons on the same receipt of payment to remain seated together until a waitress takes their beverage order, verifies that all persons in the party are included on the receipt, and delivers a plate to each person. The members of a party are then free to sit wherever they choose. On July 23, 2007, after a visit to the same restaurant on that day, Petitioner's mother emailed Golden Corral three times complaining about rudeness and lack of professionalism on the part of restaurant employees. In one email, she makes her only reference to the matter at issue in this case, indicating that when told that her son was disabled, a restaurant employee, "Tangie," "changed the entire tone and tried to accomidate [sic] us the best she could." While Petitioner's disability is such that he needs assistance carrying his plate (and food) from the buffet line to his seat, he is able to feed himself without assistance. On July 8, 2007, the entire family sat together and Petitioner was able to eat after his mother and grandmother assisted him in obtaining his food. The evidence revealed that Petitioner's mother's complaint was substantially directed to the "rudeness" she perceived from Respondent's employees.
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 13th day of August, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maureen M. Deskins, Esquire Butler, Pappas, Weihmuller Katz and Craig, LLP 777 South Harbor Island Boulevard Suite 500 Tampa, Florida 33602 Jerry Girley, Esquire The Girley Law Firm, P.A. 125 East Marks Street Orlando, Florida 32803
