The Issue This case concerns the issue of whether Respondent's special restaurant beverage license should be suspended, revoked or otherwise disciplined for failing to derive 51 percent of gross revenue from the sale of food and for failing to maintain sufficient food and equipment to serve 150 full course meals on the licensed premises. The Petitioner, at the formal hearing, called as its only witness Beverage Officer G. L. Hodge. The Petitioner offered and had admitted into evidence two exhibits. Counsel for the Respondent contacted counsel for the Petitioner just prior to the formal hearing to notify the Petitioner that the Respondent would not be appearing at the formal hearing. The Respondent did not appear and therefore presented no evidence. Respondent was duly noticed and informed of the time and place of the hearing in accordance with Chapter 120 of the Florida Statues.
Findings Of Fact At all times material to this proceeding, the Respondent, Colonial Park Pub, Inc., was the holder of Beverage License No. 62-2029-SRX, Series 4-COP. This license was issued to the premises known as the Colonial Park Pub and Restaurant, located at 8239 46th Avenue North, St. Petersburg, Florida. The license held by Respondent is a special restaurant license. After receiving a complaint about the licensed premises, Beverage Officer G. L. Hedge on July 26, 1983, went to the licensed premises to perform an inspection. A food inventory revealed the following food items stored on the licensed premises: In the kitchen, in the freezer closest the entrance was approximately: 15 slices of bacon 8 slices of turkey 20 slices of pickles 3 onions 3 tomatoes 2 slices of American cheese 10 oz. of tuna fish 25 slices of Pastrimi hot dogs slices of roast beef 1b. of American cheese 1bs. of Swiss cheese 1 six 1b. can of sliced pineapple In the freezer in the middle of the kitchen the following was found: 2 loaves of bread 5 sandwich buns 8 submarine rolls 4 heads of lettuce 2 celery stalks 1 gallon of milk 4 lemons 13 limes 34 In tomatoes the stand-up icebox was found the following food: 3/4 of a cantalope 3 1/2 sticks of margarine 12 rolls 2 1/2 20 oz. bags of mixed vegetables 4 bags of hard rolls 7 hot dogs 2 loaves of Jewish bread 4 slices of salami 3 slices of ham In the food storage chest was found the following food: 7 cans of pickle spears 99 oz. 2 1 1b. bags of potato chips 2 cans of red beans 6 1bs. 15 oz. 4 cans of tuna fish 11 1bs. 2 1/2 oz. This was not sufficient food to prepare 150 full course meals as defined in Rule 7A-3.15, Florida Administrative Code. The licensed premises had the appearance of a lounge and not a bona fide restaurant operation. There were no silverware, menus, plates, or table cloths on any of the tables. The premises were dimly lit and no one was observed eating any meals. The inspection occurred at approximately 2:15 p.m. There were approximately 30 meals per day served at the licensed premises and only sandwiches were served after approximately 8:00 p.m. The menu stated that dinners were not served after 7:30 p.m. During the period May 1982, through April 1983, the Colonial Park Pub and Restaurant had total gross sales of $197,564.07. Of this total, beverage sales were $135,530.17 and food sales were $62,033.90. Food sales for the year constituted 31 percent of sales. During this same period, beverage purchases amounted to $69,442.76 versus food purchases of $19,046.89. There were only two months, May and June 1982, where the Respondent even approached food sales equalling 51 percent of gross sales.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Petitioner enter a final order finding the Respondent guilty of the violations charged in the Notice to Show Cause and revoking beverage license No. 62-2029-SRX. DONE AND ORDERED this 9th day of April 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 John L. Waller, Esquire The Legal Building 447 3rd Avenue, Suite 403 St. Petersburg, Florida 33701 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent discriminated against Petitioners on the basis of race or national origin at Respondent's place of public accommodation.
Findings Of Fact At issue in these consolidated cases are the complaints by Petitioners Mitchell and Beck that they were subjected to discrimination when they visited Respondent's Orlando restaurant on December 3, 2011. Petitioner Mitchell is an African-American male, and Petitioner Beck is an Asian female. They live in Tampa and have been dating for approximately five years. Prior to December 3, 2011, they had visited BB King's in Orlando several times--four or five times, according to Petitioner Mitchell. On each of those occasions, they had enjoyed the restaurant's services and were not subjected to any form of discrimination. BB King's is a southern-style barbecue restaurant and live music venue. Respondent operates four BB King's locations. The Orlando restaurant is the largest, occupying 14,000 square feet spread over two stories, with three bars, a stage, and a dance floor. The restaurants are named after the famous African- American blues musician, B.B. King. At the Orlando restaurant, B.B. King and other blues musicians (such as Ray Charles and Howlin' Wolf, both African-Americans) are portrayed in paintings and images on the exterior walls, and inside the restaurant on the stage, on the walls, on the menus, and on the glassware. BB King's has a racially diverse clientele. A large majority of Respondent's customers are African-Americans. Respondent has a non-discrimination policy, prohibiting discrimination on the basis of race, color, religion, sexual orientation, ethnicity, or other classification. All of Respondent's employees receive training on the company's non- discrimination policy, as part of the extensive initial-hire training process in the company's policies and procedures. The Orlando BB King's is at its busiest on Saturday nights, particularly between 7:00 p.m. and 10:00 p.m. During this time, there is usually a wait for a table. The waiting time ranges from five minutes to two hours. Respondent's seating policies and procedures were at the heart of the incident of which Petitioners complained. The seating policies and procedures in effect as of December 3, 2011, established through the credible testimony of Respondent's witnesses and corroborating exhibits, are described below. Respondent does not offer reservations in the traditional sense of reserving a table to accommodate a particular number of customers at a particular time. Instead, Respondent offers a variation of traditional reservations, called priority seating. Priority seating arrangements can be made in advance by telephone, online, or in person, for a particular group expecting to arrive at a particular time. While priority seating does not guarantee that a table will be ready when the group arrives, if an appropriate-sized table is not ready, the group is given first-in-line status, so they would receive the next available table of the size needed to accommodate the group, ahead of any walk-ins who are waiting for the same-sized table. Respondent limits the number of priority seating arrangements it will make for a given time slot. It is common, therefore, for priority seating slots to be filled in advance, particularly for the restaurant's peak days and peak times. When persons request tables for time slots with no more priority seating openings, those persons are told that they are welcome to come to the restaurant as walk-in customers. Through its seating policies and procedures, Respondent seeks to strictly control seating and to discourage customers from seating themselves. That is particularly important when the restaurant is very busy, for several reasons: to maintain order; to rotate the seating of customers among the different server zones so as to evenly spread the work load among the servers; to ensure that priority seating is provided to those who timely avail themselves of that option; and to maximize use of seating capacity when demand is at its peak. To help control seating, upon entering the Orlando BB King's restaurant, customers are informed by a sign at the reception station: "Please Wait To Be Seated." Another "Please Wait To Be Seated" sign tops a pole at the front of the velvet- roped area demarking the line for customers waiting to be seated. To reinforce the message of its "Please Wait To Be Seated" signs, Respondent places "Reserved" signs on each vacant table. Respondent's witnesses acknowledged that these tables are not actually reserved in the traditional sense of being held for a particular group with reservations, although tables may be held for priority seating, a term used interchangeably with reservations.2/ But the signs are not used for that purpose; instead, the signs are used as a means to discourage impatient customers from trying to seat themselves despite being told to wait to be seated. Another seating policy employed by Respondent is referred to as the 75 percent rule. Under this rule, unless and until 75 percent of a group wanting to sit together at one table is physically present at the restaurant, customers who are part of the group are not seated and are not even put on a waiting list nor provided a pager for a table. In other words, if two customers tell the hostess that they are a part of a group of four and are waiting for two other persons to arrive, those two customers will not be seated at a table for four, nor will they be put on the wait listing and given a pager for a table for four. Respondent's witnesses credibly explained that this rule served the purpose of maximizing use of available seating capacity, which is particularly important on busy nights during peak hours. The night in question--December 3, 2011--was a Saturday night during tourist season. Petitioners decided to drive from Tampa to Orlando, a prime tourist destination location, to return to the BB King's restaurant they had previously enjoyed. Petitioners did not make seating arrangements in advance. Instead, on the way to the restaurant, Petitioner Beck called BB King's on her cell phone to try to make reservations, between one and two hours before Petitioners expected to arrive. Petitioner Beck spoke with "Robbie," who told her that she could not make a reservation, but that they were welcome to walk in. Respondent's witnesses credibly explained that by the time Petitioners attempted to make seating arrangements, the priority seating limits surely would have been reached. Thus, it was reasonable and consistent with Respondent's seating policies for Petitioner Beck to be told that she could not make a reservation, but that they were welcome to walk in. Petitioner Beck acknowledged that the person with whom she spoke did not know the race or national origin of either Petitioner. Petitioners proceeded on to BB King's, arriving between 8:00 p.m. and 9:00 p.m. The restaurant was very busy. In addition to the normal crowds at this peak time, the restaurant was hosting three special events for Nike: one Nike event was for a group of 50 people, between 6:30 p.m. and 9:00 p.m.; the second Nike event was for a group of 41 people, between 7:00 p.m. and 9:00 p.m.; and the third Nike event was for another group of 50 people, between 7:30 p.m. and 10:30 p.m. Petitioners checked in with the hostess at the front reception station. Petitioners were greeted in a friendly manner by the hostess and were given a pager that would signal when their table was ready. Within five to ten minutes, the pager signal was activated. Petitioners returned the pager to the hostess, who turned Petitioners over to a runner, the BB King's employee who escorts guests from the reception area to their tables and provides them with menus and silverware. The runner led Petitioners to a table for two. However, Petitioners refused the two-seater table offered to them, and informed the runner that they needed a table for four, as they were waiting for another couple who had not arrived yet.3/ Petitioners must have told the hostess that they were a party of two, not four, when they first checked in, so as to be put on the waiting list and given a pager for a two-seater table. Petitioners failed to explain why they did not inform the hostess upon checking in that they were waiting for two more persons and needed a table for four, instead of waiting until they saw the table to which they were led to tell the runner that they actually needed a table for four. The logical inference from Petitioners' description (and from Petitioner Beck's evasiveness described in endnote 3) is that Petitioners developed the story that they were expecting another couple after they were led to the table for two, perhaps because they were not happy with the location of the two-seater table and preferred the location of the four-seater tables, or perhaps because they just wanted more elbow room. The credibility of Petitioners' story is undermined by the following facts: Petitioner Mitchell admitted that there was no set time established to meet this other couple at the restaurant; the other couple that was supposed to meet Petitioners never showed up during the hour that Petitioners estimated they were at the restaurant in total; Petitioners did not offer testimony by the other couple to corroborate their story; and Petitioners did not even name the other couple when asked in discovery for names of persons with knowledge of the facts underlying Petitioners' complaints. Ironically, the new information that Petitioners were waiting for another couple, belatedly offered to the runner in an attempt to switch to a four-seater table, triggered the 75 percent rule, which ultimately was the source of Petitioners' dissatisfaction. The credible evidence establishes that if Petitioners had accepted the two-seater table they were offered, they would have been served, as they had been on prior occasions. Instead, pursuant to the 75 percent rule, Petitioners were escorted by the runner back to the reception area, and were told to let the hostess know when the couple they were waiting for had arrived. Petitioners asked to be put on the waiting list and be issued a pager for a table for four, but the hostess followed the 75 percent rule and reasonably refused to do so. No evidence was offered to prove that the 75 percent rule was used as a means to discriminate against Petitioners because of their race or national origin. Petitioners offered no evidence to prove that any other customers who did not have 75 percent of their group present were seated at tables, or were put on the waiting list and issued pagers. Petitioners offered no evidence to prove that the 75 percent rule was not applied uniformly to all other customers regardless of their race or national origin. Petitioners offered no evidence that the 75 percent rule was waived for any customers who were not members of Petitioners' protected race or national origin classes. After Petitioners were returned to the reception area and told to let the hostess know when the rest of their party arrived, Petitioners went to the bar area to wait. Petitioner Beck ordered a drink, and was served without incident. Petitioners observed an African-American couple seated at a nearby table for four. When the African-American couple was finishing their meal and about to vacate their table, they asked Petitioners if they wanted to be seated at the table, and Petitioners gladly took them up on their offer. The African-American couple who offered Petitioners their table left and Petitioners remained seated at the table for four. Petitioners did not have menus or silverware, because they were not seated by a runner. A server approached the table, but did not stop to take Petitioners' orders. The server seemed upset according to Petitioners, perhaps because they had seated themselves, contrary to Respondent's seating policies and procedures. Then a different server came to the table. According to Petitioners, that server took their orders for drinks and dinner, and brought them drinks. Petitioners believe that the first server must have reported them to the hostess, because the same hostess who had told Petitioners previously to wait until the rest of their group arrived came over to tell Petitioners that they needed to get up from the table. Someone who Petitioners described as a manager also came up to tell Petitioners that they needed to vacate the table because the rest of their group had not arrived. At hearing, Petitioners testified that they did not know the name of the manager with whom they spoke. Petitioners claim that they told the unidentified manager that they should not have to leave the four-seater table, pointing out that there was a Caucasian couple seated at a four- seater table. According to Petitioners, the manager told them he did not have the heart to ask the other couple to move. Petitioner Beck testified that the manager made this comment while Petitioners were waiting in the bar area before seating themselves. Petitioner Mitchell, on the other hand, claimed that this conversation occurred after the manager asked them to get up from the four-person table. Petitioners' testimony in this regard was not credible. When Petitioners were asked to vacate the table from which they had seated themselves, after arguing for a brief period, Petitioners ultimately agreed to vacate the table. They then decided to leave the restaurant. Apparently they were allowed to leave without paying for the drinks they had ordered and been served while seated at the table for four, and apparently they abandoned the dinner orders they had placed. It was clear from Petitioners' testimony that they did not understand Respondent's seating policies. Petitioners seemed to be under the misimpression that Respondent had a policy against seating couples at tables for four. Instead, according to the credible testimony of Respondent's witnesses, couples are often seated at tables for four early in the evening, but that as the evening progresses into the peak hours, the hostess begins to direct couples to two-seater tables, using the four-seater tables for groups of three or four. This maximizes use of the available seating, a reasonable and necessary policy for a busy restaurant/entertainment venue. The testimony of Respondent's witnesses was consistent in this regard, and included the credible testimony of Ms. Olivo, who was the hostess on December 3, 2011, but who has not worked for Respondent since 2012. The credible evidence established that Petitioners were asked to vacate the table for four, not because there were only two of them, but rather, because their story that they were waiting for another couple triggered the 75 percent rule, and because, after they were told to wait until the rest of their group arrived, they chose to ignore those instructions and seat themselves. Petitioners failed to prove that Respondent's practice of sometimes seating couples at tables for four and sometimes directing couples to tables for two was a choice made on the basis of race or national origin, as opposed to a reasonable judgment for maximizing use of seating capacity based on how busy the restaurant is. Petitioners acknowledged that the Caucasian couple they claim to have pointed out to the manager was not the only couple they observed seated at a table for four. To the contrary, Petitioners admit that the couple who made the nice gesture that, unfortunately, was contrary to Respondent's seating policies, of offering Petitioners "their" table as they were getting up to leave was an African-American couple. Petitioners offered no evidence to prove how long either the Caucasian couple or the African-American couple seated at tables for four had been at the restaurant, whether they were seated with all of their party present, whether they were waiting for others to join them, or whether they had improperly seated themselves. These couples might have arrived hours earlier, well before the peak time, and lingered to enjoy their food and the live entertainment. That Petitioners admitted to having observed both a Caucasian couple and an African-American couple at tables for four is evidence that Respondent was not using its seating policies as a means to discriminate, but rather, applied its policies in a non-discriminatory manner to accommodate customers both within and outside the protected classes who were not shown to be similarly situated to Petitioners. In fact, Petitioners admitted that when the two of them previously visited Respondent's Orlando restaurant, they had been seated at tables for four. Petitioners also contend that the unidentified manager who asked them to vacate the table informed them that the table was "reserved" for a group of three Caucasian customers who had priority seating arrangements. According to Petitioners, this threesome arrived at the restaurant after Petitioners. Petitioners do not contend that the three Caucasian customers did not have 75 percent of their group present; mathematically, the threesome being seated at a table for four must have had at least 75 percent of their group present. Moreover, Petitioners offered no evidence that the three customers did not have priority seating arrangements. Accordingly, Petitioners' description does not support Petitioners' assertion of discrimination, but rather, a consistent application of Respondent's seating policies and procedures. Petitioners were not entitled to be seated or to be placed on a waiting list for a table for four, because their claim to be waiting for another couple triggered the 75 percent rule; Petitioners ignored the instructions to wait for the rest of their group, and violated another seating policy by seating themselves. Petitioners did not attempt to make seating arrangements in time to secure priority seating, as the Caucasian threesome apparently had done. Thus, the Caucasian threesome was entitled to priority seating over walk-in customers on the waiting list for a four-seater table. Petitioners had not yet qualified to be placed on the walk-in waiting list. Consistent with Respondent's seating policies, Petitioners were properly asked to vacate the table at which they had seated themselves. As with the 75 percent rule, no credible evidence was offered to prove or suggest that the do-not-seat-yourself rule, announced to all customers by the sign at the reception station, was applied in a discriminatory fashion. Respondent's witnesses credibly testified that it is common for customers to try to skirt the seating policies by seating themselves when a table is vacated, particularly on a busy Saturday night, such as on December 3, 2011. Management and staff are all on alert to look for tell-tale signs, such as customers sitting at a table without menus or silverware. When this occurs, the hostess or a manager will inform these customers that they cannot seat themselves, and they are asked to leave the table. The credible testimony established that customers of all races and national origins are asked to leave tables when they violate the seating policies by seating themselves. Petitioners also argue that the use of the word "reserved" on signs placed on tables is inconsistent with Respondent's seating policy that does not allow tables to be reserved in the traditional sense. However, Respondent reasonably explained its seating policies and procedures, including its use of the "reserved" signs. Whether Respondent's seating policies are clear or confusing, good or bad, or make sense to Petitioners are not questions for determination in this proceeding. Instead, the question is whether Respondent's actions taken pursuant to its seating policies and procedures were motivated by intentional discrimination. Petitioners did not prove that Respondent used "reserved" signs as a means to discriminate against Petitioners because of their race or national origin. Petitioners do not contend that they were subjected to any form of direct discrimination, such as racial or ethnic slurs or derogatory comments of any kind. Instead, Petitioners Mitchell and Beck proved only that they are African-American and Asian, respectively; that they could have enjoyed all of the benefits offered at BB King's had they accepted the table for two they were offered; that they were not seated at a table for four because they claimed to be waiting for another couple to join them; and that they were asked to leave a table at which they had seated themselves. No credible proof was offered from which to infer that Respondent's actions were motivated by intentional discrimination based on race and national origin. For reasons explained in a series of motions and Orders (see endnote 1), the undersigned exercised the authority provided in section 120.569(2)(f), Florida Statutes (2012), and Florida Rule of Civil Procedure 1.380(b)(2), to assess costs against each Petitioner in connection with sanctions imposed for their discovery violations. By Order issued July 11, 2013, Petitioner Mitchell was ordered to pay $1,067.50 to Respondent to reimburse a portion of the reasonable attorney's fees incurred in attempting to obtain discovery and enforce orders compelling discovery. By separate Order issued July 11, 2013, Petitioner Beck was ordered to pay $1,098.00 to Respondent to reimburse a portion of the reasonable attorney's fees incurred in attempting to obtain discovery and enforce orders compelling discovery. As of the final hearing, these assessments had not been paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: In DOAH Case No. 12-3992, that the Florida Commission on Human Relations enter a Final Order: dismissing the Petition for Relief filed by Petitioner Freddie Mitchell; and assessing $1,067.50 against Petitioner Mitchell for discovery violations, to be paid to Respondent, pursuant to the Order entered on July 11, 2013; and In DOAH Case No. 13-517, that the Florida Commission on Human Relations enter a Final Order: dismissing the Petition for Relief filed by Petitioner Genevieve Abad Beck; and assessing $1,098.00 against Petitioner Beck for discovery violations, to be paid to Respondent, pursuant to the Order entered on July 11, 2013. DONE AND ENTERED this 14th day of May, 2014, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2014.
The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 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 March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
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
The Issue Whether Petitioner, Vanessa Brown, a member of a protected class, was denied rental of a room at the hotel called the Sleep Inn owned by Respondent, Capital Circle Hotel Company, on or about May 27, 2000, on the basis of her race (African-American) in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner is a member of a protected class (African- American). Respondent was on May 27, 2000, and is the owner of the Sleep Inn located in Temple Terrace, Florida, which is a public lodging establishment. In the early morning hours of May 27, 2000, Petitioner was denied accommodations at the Sleep Inn. Cheryl Dodd was working as night auditor and desk clerk for Respondent on May 26, 2000, and May 27, 2000. At approximately 4:00 a.m., Petitioner entered the Sleep Inn with Frederich Mobley (also African-American) and asked to rent a room. Before Petitioner could complete her request, Dodd told Petitioner she was sold out. Dodd made no effort to check the Sleep Inn computer system or reservation card system to determine if a room was available before immediately interrupting Respondent and telling her that no room was available and no room would be available until the next day in the afternoon. Petitioner and Mobley left the lobby of the Sleep Inn and returned to the parking lot. In the parking lot, Mitchell Jamerson was wiping down his car, because he could not sleep. Jamerson (an African-American) struck up a conversation with Mobley and Respondent. He asked the two of them if they had been told there were no rooms available. Jamerson told them that he was with a softball team and four of his team members had called to tell him they had had car trouble, would not be able to get to the motel that night, and that their rooms would not be needed. About ten minutes after Petitioner left the hotel lobby with Mobley, a Caucasian male entered the hotel lobby and came back out. Jamerson spoke to the gentleman, and he said he had just rented a room for him and his wife for the night, without a reservation. Jamerson accompanied Petitioner and Mobley back into the lobby. Petitioner asked Dodd why she could not have a room when a room had just been rented to the Caucasian male. Dodd said she had given the Caucasian male a room with a cot. Petitioner asked why she was not offered that room. Dodd told Petitioner that she did not think they would want a room with a cot and that there were no other rooms available. Dodd told Petitioner that she (Petitioner) could speak to the manager the next day, and gave her the card of John C. Walters. The time of the end of Petitioner's second visit to the lobby was 4:10 a.m. on May 27, 2000. At approximately 12:00 a.m., Jamerson had gone to the front desk and told the desk clerk, Dodd, that three rooms reserved by his team would not be needed that night because his team members had had car trouble in Wildwood. Jamerson and his team (other than the four mentioned above), including both African-Americans and Caucasians, had checked in at approximately 7:30 p.m. on the evening of May 26, 2000. The rooms they were given were missing towels. During the registration and when asking for towels, they believed they were treated rudely. Jamerson stated that the clerk on duty at 12:00 a.m. midnight and at 4:00 a.m. on May 27, 2000, was the same person at the desk when he checked in with his team at 7:30 p.m. on May 26, 2000. Dodd testified that she came on duty at 11:00 p.m. that night for an 11:00 p.m. to 7:00 a.m. shift. However, John C. Walters, the manager of the Sleep Inn, stated that Dodd often helped out during shifts other than the 11:00 p.m. to 7:00 a.m. shift. Neither Dodd nor Walters could identify who was on shift at the hotel for the 3:00 p.m. to 11:00 p.m. shift that night. Dodd, contrary to the testimony of Jamerson, Petitioner, and Mobley, said Petitioner came into the hotel both times with two men. Dodd also said that she had checked in two sets of parents and two African-American females into two rooms at approximately 11:00 p.m. or 12:00 a.m. She stated that the individuals had reservations and were parents of members of the baseball team. Jamerson stated that his team was the only team in the hotel, that he knew the teams in the competition that were to attend and that all the teams were comprised of adult women. No parents of his team stayed at the hotel on May 26, 2000, or May 27, 2000. Dodd's testimony on this incident is not credible. Dodd testified that she was running the night audit at the time Petitioner and Mobley entered the hotel, and could not check whether a room was available. Dodd admitted that she did not make that information known to Petitioner or Mobley. Dodd testified that she had started running the audit sometime between 1:00 a.m. and 2:00 a.m. that night, as was her practice, and that the audit took one to one and a half or two hours to run. However, Walters testified that he was not there the night of May 26, 2000, or May 27, 2000, but the audit took about 45 minutes. Dodd testified that she had had a gentleman call in to cancel a room because he had had car trouble. She testified that the gentleman had called approximately 30 to 45 minutes after Respondent and Mobley left the lobby. She said she told the gentleman that called that she would try to rent out the room, and if she could, she would not bill him even though according to policy she should. She then testified that the Caucasian male to whom she rented the room entered the lobby approximately 15 minutes later. Dodd testified that when she had a reservation and the person called in to cancel after 6:00 p.m. she would bill that client, but would rent out the room if possible. She said she could check people in and out while the audit was running. This testimony is not credible. Robert Bland testified that the policy of Respondent was to bill the customer who had a reservation if they canceled after 6:00 p.m. and not to rent the room out. The policy was based on the fact that the customer was being billed for the room and had a right to have that room available for him/her whether or not anyone else appeared to ask for the room. Bland presented a composite exhibit of the driver's license photographs of 14 African-Americans who rented rooms between May 10, 2000, and May 28, 2000. Bland could not confirm whether or not that was all the African-Americans who had rented rooms in the month of May or just all between the period of May 10, 2000, and May 28, 2000. Bland stated that all computer records of the registrations and other records other than the driver's license photos he presented for the period of May 2000 had been destroyed on a hard disk that had been damaged. Of those driver's licenses produced to demonstrate that the hotel did provide rooms to African-Americans, seven of those driver's licenses belonged to members of Jamerson's baseball team who had signed in on May 26, 2000, at 7:30 p.m. after Dodd was on duty. Jamerson's team had made reservations through one party by telephone and no identification had been made at the time of the reservations of their ethnic background. Bland could not state who had accepted the reservations of the African-Americans identified by driver's license photographs who were not members of Jamerson's team. Bland could not state that he knew that Dodd had ever rented a room to any African-American other than Jamerson's team members, who had arrived with prior reservations. Bland stated that Dodd had been given a new employee manual which was developed after Bland took over as Director of Operations. This was sometime after Dodd had actually started work at the Sleep Inn. No training was given to Dodd or any other employee on that manual. The manual states that no one should discriminate on the basis of any categories of discrimination. No other information that was provided indicated that Bland could verify that Dodd had read the manual. Dodd stated that she was provided an Employee Manual which warned against discriminating against minorities, and she did know from working in the hospitality industry that she should not discriminate. Dodd further testified that no one at the Sleep Inn asked her, suggested to her, or implied to her that she should give preferential treatment to Caucasians over African- Americans. Dodd specifically testified that at the time Petitioner came into the Sleep Inn, she was running the night audit of the motel on the computer and that to her knowledge no rooms were available at that time. Dodd further testified that early after Petitioner left the lobby, a room became available, that she was not aware Petitioner was waiting in the parking lot, and that the next prospective guests to enter the motel were a Caucasian couple. Walters testified that at the Sleep Inn, while he was there he rented to anyone who could rent a room. His purpose was to place "heads in beds."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent discriminated against Petitioner based on her race (African-American); Awarding Petitioner $500 in compensatory damages; Issuing a cease and desist order prohibiting Respondent from repeating this practice in the future; and A reasonable attorney's fee as part of the costs. DONE AND ENTERED this 17th day of October, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of October, 2002. COPIES FURNISHED: Stephen F. Baker, Esquire Stephen F. Baker, P.A. 800 First Street South Winter Haven, Florida 33880 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Tricia A. Madden, Esquire Tricia A. Madden, P.A. 500 East Altamonte Drive, Suite 200 Altamonte Springs, Florida 32701 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Florida Administrative Code Rule 61A-3.0141(2)(a)2., and its directive that the square footage making up the licensed premises of a special restaurant (SRX) license be “contiguous,” constitutes a valid exercise of delegated legislative authority. Whether a genuine issue of material fact exists, and, if so, whether Petitioner’s Motion for Summary Adjudication should be denied.
Findings Of Fact The following findings of facts are determined: The State of Florida, Department of Business and Professional Regulation (Respondent) is the state agency responsible for adopting the existing rule which is the subject of this proceeding. Under the provisions of Section 561.02, Florida Statutes, the Division of Alcoholic Beverages and Tobacco, within the Department of Business and Professional Regulation, is charged with the supervision and enforcement of all alcoholic beverages manufactured, packaged, distributed and sold within the state under the Beverage Law. The Division issues both general and special alcoholic beverage licenses. Petitioner, Brooklyn Luncheonette, LLC, d/b/a Del Tura Pub and Restaurant is the owner/operator of a restaurant located in North Fort Myers, Florida. It is seeking issuance of a special restaurant license (SRX) pursuant to Subsection 561.20(2)(a)4., Florida Statutes, from the Division. Therefore, Petitioner is substantially affected by the challenged rule. Petitioner operates a restaurant on a leased parcel of property consisting of two buildings with a dedicated pathway between the two buildings. Petitioner’s restaurant premises consist of two buildings which contain a minimum of 2,500 square feet in the aggregate of service area. Petitioner’s restaurant facility is equipped to serve 150 patrons full course meals at tables at one time. The sole reason asserted by Respondent for denial of Petitioner’s application is the alleged noncompliance with the “contiguous” requirement of Florida Administrative Code Rule 61A-3.0141(2)(a)2. The provision of general law, applicable to Petitioner, which sets forth the specific criteria for an SRX license, is Subsection 561.20(2)(a)4., Florida Statutes. To these statutory criteria, Respondent has, by Florida Administrative Code Rule 61A-3.0141(2)(a)2., added an additional criteria: “The required square footage shall be contiguous and under the management and control of a single establishment.” Respondent has interpreted the provision to mean that the buildings containing the square footage must physically touch. Florida Administrative Code Rule 61A-3.0141 reflects that the sole law implemented is Subsection 561.20(2)(a)4., Florida Statutes. Susan Doherty is the chief of Respondent’s Bureau of Licensing, whose duties include determining “if a license will be issued based upon the qualifications of the applicant [and] whether the premises meets all requirements based on the type of license applied for.” Ms. Doherty, whose deposition was taken on May 12, 2009, testified in pertinent part: Q. All right. If I can direct your attention to Subsection (2)(a)(2) of Rule 61A-3.0141, it says, “The required square footage shall be contiguous and under the management and control of a single licensed restaurant establishment.” What does “contiguous” mean? A. Touching, actually connected, touching. * * * Q. Do you see anything in the statute that prohibits a licensee from qualifying if the square footage is in two buildings that the applicant leases and they’re connected by a pathway which the applicant leases? Do you see anything in the statute that precludes that? A. In the statute, no. Q. Do you see anything in the rule that precludes that? A. In my opinion, Section (2)(a)(2), the contiguous would. Deposition of S. Doherty, pp. 15 and 18. Chief Doherty conceded, however, that she could not point to any provision of the relevant statute that imposes a “contiguous” requirement regarding the square footage. Chief Doherty further noted that for special licenses issued for hotels pursuant to Subsection 561.20(2)(a)1., Florida Statutes, she was aware that there were numerous non-contiguous buildings licensed pursuant to such section. The deposition of Respondent’s agency representative, Major Carol Owsiany, was taken on May 13, 2009. Major Owsiany testified: Q. . . . Isn’t it correct that there’s 2,500 square feet of service area located in the two buildings that are currently the subject of the [Petitioner’s] temporary SRX license? A. Yes, sir. Q. Can you point to me any provision of Section 561.20(2)(1)(4) that precludes the petitioner from having the requisite square footage in two buildings? A. One second, sir. Not in the statute, but I can in the rule. Deposition of C. Owsiany, p. 8. For purposes of this rule challenge case, there are no genuine issues of material fact in dispute.
Findings Of Fact In December, 1982, DABT issued an alcoholic beverage license (Lic. no. 15-1163, Series 4-COP SRX) under its SRX classification to respondent to operate a restaurant with liquor sales on the premises. The restaurant was known as "Thee Doll House Beach," at 199 East Cocoa Beach Causeway, in Cocoa Beach, Florida. A requirement of the license was that revenue from sales of alcoholic beverages equal or exceed 51 percent of gross sales. Respondent opened "Thee Doll House Beach" for business in January, 1983. The business operated as a buffet restaurant, with a fixed-price, "all- you-can-eat" menu. Meals consisted of a hot entree, chosen from baked ham, roast beef and turkey; a selection of four or five hot vegetables; a large salad bar; two soups; and a desert tray, with pies, pastries and cakes. The business also offered alcoholic beverages for sale in the restaurant and at a bar. A "Las Vegas-style" show was presented nightly at eight o'clock, although the restaurant opened at noon. The first month's (January 1983) sales of food only reached 40.6 percent of gross sales, and subsequent efforts of the respondent to reach 51 percent were never successful. The initial price of a buffet meal was $4.95 per person, which attracted a sizeable number of patrons, many of them senior citizens. However, the respondent found that due to the extensive food menu and the cost of preparation and service, it was losing money on each meal sold. So it increased its meal price to $5.95, which resulted in a drastic drop in business, apparently due to the inability of senior citizens to pay the higher price. It was in this particular group that the most noticeable decrease in attendance occurred. The respondent took various steps to increase its food sales. "Early- bird" specials were introduced at a lower price; extensive newspaper, radio and television advertising was utilized to promote the buffet. Nevertheless, at the end of 1983, the business had shown an overall food sales of only 31 percent. Monthly percentage figures are as follows: DATE FOOD/NON-ALCOHOLIC BEVERAGE PERCENTAGE ALCOHOLIC PERCENTAGE January 1983 40.5 59.5 February 1983 27.1 72.9 March 1983 37.3 62.7 April 1983 33.5 66.5 May 1983 31.9 68.1 June 1983 29.1 70.9 July 1983 27.5 72.5 August 1983 23.9 76.1 September 1983 24.1 75.9 October 1983 23.4 76.6 November 1983 23.6 76.4 December 1983 23.3 76.7 The respondent's problems were compounded by the fact that it was operating in a difficult, if not depressed market, where financial conditions had limited the discretionary income available to restaurant-going consumers. Other restaurants in the area were having to cut back operations or terminate business altogether. During the year in question, the respondent held itself out to be a restaurant, not a lounge, and its primary emphasis in advertising, in its internal business operation and in its physical layout, emphasized food sales as opposed to liquor sales. During the time period in question the price of a meal at Thee Doll House Beach was significantly below its fair market value. The respondent attempted to increase its food sales by lowering prices, which, in turn, decreased the percentage of gross food sales. According to the evidence, a reasonable price for the menu offered, based on a comparison with other restaurants in Central Florida, would have been $8-$10. Using those price figures, the percentage of food sales to gross revenues at Thee Doll House Beach would have exceeded 60 percent.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's beverage license be revoked but that such action be vacated if respondent surrenders its license for cancellation within 10 days of entry of DABT's final order. DONE and ORDERED this 15th day of August, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard L. Wilson, Esquire 1212 East Ridgewood Street Orlando, Florida 32803 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent is liable to Petitioner for public accommodation discrimination based on Petitioner’s handicap, in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner, Eric Wendell Holloman, is a 60-year-old man who resides in Jacksonville, Florida, and has been diagnosed with arthritis, diabetes, and high blood pressure. Respondent, Lee Wesley Restaurants, LLC, is the owner and operator of the Burger King restaurant located at 210 East State Street in Jacksonville, Florida. The corporate headquarters are located at 6817 Southpoint Parkway, Suite 2101, Jacksonville, Florida 32216. At all times relevant hereto, Respondent employed more than 15 employees. Petitioner has a driver’s license, but he asserted that he does not know how to drive a car. Petitioner’s primary method of transportation is his bicycle. Petitioner eats at a number of fast-food restaurants in the area of State Street in Jacksonville. Petitioner testified that he can’t cook because he doesn’t have a wife. Petitioner administers his own insulin to treat his diabetes and takes medication for high blood pressure. Petitioner uses a walking cane which was provided to him by the local Veteran’s Administration where he receives medical care. Petitioner’s cane is metal with four “legs” extending outward from the bottom of the upright metal post. Each leg is capped with a rubber “foot.” The cane will stand up on its own when not in use. Petitioner recounts the following events in support of his claim of public accommodation discrimination: On June 4, 2013, Petitioner entered the Burger King in question, ordered a meal with a drink, and took it to a table in the dining area where he proceeded to eat. At some point while he was dining, Petitioner accidentally knocked over his drink with his cane, which he testified was on the table with his food. Petitioner testified that no employee of the restaurant spoke to Petitioner about the spill, offered to help him clean it up, or otherwise acknowledged that he spilled his drink. Petitioner did not clean up the spill either. Petitioner helped himself to a drink refill and left the restaurant without incident. The following day, June 5, 2013, he entered the same restaurant and attempted to order a meal. According to Petitioner, he was told by an employee that he must leave and he would not be served at that restaurant. Petitioner identified Randall Gibson, the man seated with Respondent’s Qualified Representative at the final hearing, as the employee that asked him to leave the restaurant on June 5, 2013. Petitioner exited the restaurant via the rear door, which he testified was close to the flag pole where he had parked his bicycle. According to Petitioner, two Burger King employees followed him outside and threatened him with “bodily harm” if he returned to the restaurant. Petitioner was clearly upset with Mr. Gibson and other employees of the Burger King. Petitioner explained that on June 4, 2013, when Petitioner ordered his food at the counter, Mr. Gibson and a female employee were engaged in behavior he found offensive. Specifically, Petitioner testified that Mr. Gibson was “up behind” the female employee engaging in hip and pelvic gyrations. Petitioner twice stood up from his chair and demonstrated the hip and pelvic gyrations to the undersigned. Petitioner testified that he has at least 50 cases pending in state and federal courts alleging civil rights violations. The final hearing was one and one-half hours in duration. Only a small portion of the hearing time was devoted to presentation of evidence relevant to Petitioner’s claim of discrimination based on a disability. During his testimony, Petitioner often strayed into lengthy tirades against racial discrimination, quoting from the United States Constitution, as well as the writings of Dr. Martin Luther King, Jr., and other leaders of the Civil Rights Movement. The undersigned had to frequently reign in Petitioner’s testimony to relevant events.
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 dismissing the Petition for Relief filed by Eric Wendell Holloman in FCHR No. 2013-02160. DONE AND ENTERED this 28th day of July, 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 July, 2014.
The Issue The issue is whether Respondent failed to derive at least 51 percent of its gross revenues from the sale of food and nonalcoholic beverages, in violation of Sections 561.20(2)(a)4 and 561.29(1)(a), Florida Statutes, and failed to maintain its business records in English, in violation of Section 561.29(1)(e), Florida Statutes, and Rule 61A-3.014(3), Florida Administrative Code. If so, an additional issue is what penalty the Division of Alcoholic Beverages and Tobacco should impose.
Findings Of Fact At all material times, Respondent has held license number 16-15136, series 4-COP SRX. Pursuant to this license, Respondent operated a Brazilian restaurant known as Flavor of Brazil at 4140 North Federal Highway in Fort Lauderdale. On July 20, 1999, a special agent of Petitioner inspected the restaurant to determine, among other things, the percentage of Respondent’s gross receipts derived from food and nonalcoholic beverages. In response to a request, the agent received large numbers of original customer tickets, which record the food and beverage items ordered by each customer. In response to a request to visit the agent at her office and provide a statement, the president of Respondent hand wrote a statement explaining: “Records were wiritten [sic] in Portuguese. Basically because most of our staff speak and write Portuguese (being that they are Brazilians). But this problem has already been corrected.” The customer tickets are written in a language other than English, presumably Portuguese. For a person unfamiliar with the language in which the customer tickets are written, it is impossible to determine from these customer tickets which items are alcoholic beverages and which items are food and nonalcoholic beverages. A 4COP-SRX Special Restaurant License form signed on January 26, 1999, by Respondent advises that the license requires that at least 51 percent of the gross revenues of the licensee must be derived from the sale of food and nonalcoholic beverages. The form warns: “Since the burden is on the holder of the special restaurant license to demonstrate compliance with the requirements for the license, the records required to be kept shall be legible, clear and in the English language.”
Recommendation It is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of violating Rule 61A-3.0141(3)(a)3 and revoking Respondent’s license without prejudice to Respondent's reapplying for another CRX special license at any time after 90 days following the effective date of the final order. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 4th day of December, 2000. COPIES FURNISHED: Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-3227 Kenneth W. Gieseking Assistant General Counsel Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Flavor of Brazil 4768 North Citation Drive, No. 106 Delray Beach, Florida 33445
