The Issue The issue is whether Respondent, Townsend Seafood, violated section 760.08, Florida Statutes (2018),1/ by discriminating against Petitioner based on her race and/or her sex.
Findings Of Fact Petitioner is a black woman who lives in Jacksonville, Florida. Petitioner testified that she frequently waits at a bus stop adjacent to a strip mall on Townsend Boulevard in Jacksonville, across the street from a Publix Supermarket. In 2017, Townsend Seafood occupied the end of the strip mall nearest the bus stop. Townsend Seafood was a seafood market and restaurant. Petitioner testified that Ahmed Al Janaby, the apparent proprietor of Townsend Seafood,3/ repeatedly accosted her on the public walkway near the bus stop. In early May 2017, Mr. Al Janaby demanded that Petitioner remove a Publix grocery cart from the bus stop. Petitioner responded that she needed the cart because she has a chronic back disease and was unable to carry the several bags of groceries she had in the cart. Furthermore, the cart was on public property, not Mr. Al Janaby’s premises, and Petitioner knew that a Publix employee would retrieve the cart after she got on the bus. On Memorial Day, 2017, Petitioner stopped by Publix on her way home from festivities downtown. As she stood on the public walkway near the bus stop, Mr. Al Janaby came out of his premises and demanded that Petitioner move. When Petitioner declined, Mr. Al Janaby began insulting her choice of clothing, stating that she looked like a “whore.” Petitioner responded by calling Mr. Al Janaby’s mother a whore. At that point, Mr. Al Janaby spat at Petitioner. On July 4, 2017, Mr. Al Janaby again confronted Petitioner on the public walkway near the bus stop, demanding that she move. On this occasion, Mr. Al Janaby used what Petitioner called “the N-word.” When she threatened to call the police, he retreated to his business, but not before again spitting in her direction. On August 21, 2017, Mr. Al Janaby assaulted Petitioner with a broom, which resulted in Petitioner’s toe being broken. This incident also occurred on the public walkway near the bus stop. Petitioner testified that she had no choice but to use the bus stop near Mr. Al Janaby’s business. The bus stop itself was not covered, and the public walkway at the strip mall was the only place to seek refuge from the sun on hot days. Petitioner did most of her shopping in that area, and frequented one business in the same strip mall as Townsend Seafood. She did not shop or eat at Townsend Seafood. Judy Slonka, a white friend of Petitioner’s, testified that she once stood on the public walkway while waiting for the bus on a day when the heat index was over 100 degrees. Mr. Al Janaby emerged from Townsend Seafood and hit her with a broom, saying that she was obstructing the entrance to his business. Petitioner testified that since the events described by her and Ms. Slonka, Townsend Seafood has relocated from the end of the strip mall to an interior storefront. Neither woman has had a problem with Mr. Al Janaby since he moved his business away from the bus stop. Petitioner’s testimony was credible as to the facts of the events she described. Ms. Slonka’s testimony was likewise credible. As the undersigned explained to Petitioner at the conclusion of the hearing, the problem is that the events they described do not meet the statutory definition of discrimination in a “place of public accommodation,” because they occurred on the public walkway outside of Townsend Seafood. Mr. Al Janaby certainly had no right to accost these women on a public walkway, but this was a matter for local law enforcement, not the FCHR.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Townsend Seafood did not commit an act of public accommodation discrimination against Petitioner, Shirley P. Williams, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of July, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2018.
The Issue Whether Petitioner has been subjected to unlawful discrimination in a public accommodation by Respondent, as alleged in the Amended Public Accommodation Charge of Discrimination filed by Petitioner on July 30, 2003.
Findings Of Fact Petitioner, Rungvichit Yongmahapakorn, was hired by Respondent as an internal auditor in December 1998, then was promoted to vice president of accounting and finance in April 1999. While she worked for Respondent, Petitioner was provided room and board at the hotel. Her employment was terminated by Respondent on May 30, 2003. The circumstances of her termination are not at issue in this proceeding. Respondent, Amtel Group of Florida, Inc., d/b/a Ramada at Amtel Marina, owns and operates a 24-story full service hotel in downtown Fort Myers, Florida, overlooking the Caloosahatchee River. The hotel offers over 400 rooms and suites to guests. Petitioner testified that in May 2003, she visited her native Thailand. She returned to Fort Myers on June 3, 2003, and proceeded to Respondent's hotel, where she learned of her termination. Petitioner testified that the notice of her termination was posted on the door of Room 411, a room dedicated to staff of the hotel in which she had lived for several months. The notice also informed her that she must vacate the hotel's premises immediately. Having nowhere else to go and wishing to have some time to assess her options, Petitioner requested that she be allowed to stay as a paying guest of the hotel. She also complained of mildew in Room 411 and asked for a different room. Hotel staff showed her Room 1621, a non-smoking king guest suite facing the water. The standard rate for this suite was $129.00 per night. During the month of June, the rate actually charged for this room ranged from $89.00 to $119.00, depending on demand. Petitioner rejected Room 1621 claiming that the furniture was dirty and scratched, and the carpet needed cleaning. Ginger Eodice, director of Housekeeping for the hotel, personally cleaned the room. Petitioner did not approve of Ms. Eodice's work. Hotel staff then showed Petitioner Room 1613, another non-smoking king guest suite facing the water. Petitioner claimed that the window screens in this room were dirty and demanded that hotel staff show her another room. Petitioner was told that she could have her choice of Rooms 411, 1621, and 1613. Ms. Eodice testified that all three of the rooms were up to Ramada standards of cleanliness and in good repair. Rooms 1621 and 1613 were provided without incident or complaint to hotel guests before and after Petitioner's stay in the hotel. Petitioner refused to select a room. She was upset and became increasingly loud in the hotel lobby. Hotel staff attempted to mollify her in order not to create a scene in front of other guests, but Petitioner would not calm down. Den Chinsomboon, who was then a manager at the hotel, told Petitioner that she had to choose a room or be escorted from the hotel property. Petitioner continued her tirade, and Mr. Chinsomboon ordered a front desk employee to call the Fort Myers Police Department. The police arrived and told Petitioner that she had to select a room or leave the premises. Petitioner then calmed down and chose to stay in Room 1613. Petitioner paid in advance for ten days' stay in the room totaling $646.10. Upon her checkout on June 12, 2003, Petitioner received a full refund of $646.10 from the hotel. No witness offered any first-hand explanation for the low rate charged or the reason for the full refund. Kevin Matney, the hotel manager who made these decisions, no longer works for Respondent and did not testify at the final hearing. Petitioner testified that, while she was a guest in Room 1613, the hotel's engineering staff used pass keys to enter the room without her permission. Under cross-examination, Petitioner conceded that the engineering staff came to the room at her request to change a light bulb, but she still maintained that they entered without knocking. Several staff members testified that Ramada's firm policy was for staff to knock twice on a guest's door before using the pass key to enter. Petitioner offered no evidence that hotel staff discriminated against her because she was Asian, Thai, or because she was female. The evidence established that the hotel's owners are Thai, as were several other employees at the time. She contended that Mr. Chinsomboon's actions were motivated by the "normal" Thai male's tendency to discriminate against Thai females, but offered no firm evidence to support this bare assertion. Petitioner attempted to show that two white male employees were treated differently after their employment was terminated. At most, Petitioner was able to show that one of these terminated employees was later allowed to hire out the hotel's banquet facilities for a wedding reception. This can hardly be termed disparate treatment, given that Petitioner was allowed to stay at the hotel without charge for ten days after she was terminated. Petitioner alleged discriminatory treatment in the fact that the hotel summoned the police to evict her because she complained about the condition of the rooms she was offered. The weight of the evidence established that Respondent's employees called the police because Petitioner was causing a disturbance and was refusing to select a room. Once Petitioner selected a room, she stayed at the hotel for nine nights without further incident and was not charged for her stay. The evidence established that Petitioner had lived at the hotel since 1998 without complaining about the cleanliness or general repair of her rooms. The evidence established that Petitioner was irate over her termination and that her anger caused her to make unreasonable demands regarding the conditions of the rooms. Hotel staff attempted to satisfy Petitioner's demands, if only to prevent a loud confrontation in the hotel's lobby. There was no credible evidence that any employee of the hotel behaved in a manner that could be termed discriminatory against Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of April, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2005.
The Issue The issue is whether Petitioner has a disability (handicap), and, if so, was denied a reasonable accommodation for his disability by Respondents, in violation of the Florida Fair Housing Act (FFHA), as amended.
Findings Of Fact The record in this discrimination case is extremely brief and consists only of a few comments by Mr. Homer, cross- examination by Respondents' counsel, and Respondents' exhibits. Petitioner resides at Golfside Villas, a condominium complex located in Winter Park, Florida. At hearing, Petitioner asserted that he suffers from a disability, narcolepsy, but he offered no competent evidence to support this claim. Thus, he does not fall within the class of persons protected against discrimination under the FFHA. Golfside is the condominium association comprised of unit owners that is responsible for the operation of the common elements of the property. Hara is the corporate entity that administers the association, while Mr. Michaud, a Hara employee, is the community manager. In September 2016, Mr. Homer became involved in a dispute with Golfside over late fees being charged to his association account and issues concerning ongoing repairs for water damage to his unit that were caused by flooding several years earlier. Because some of his telephone calls were not answered by "Lorie" (presumably a member of management staff), on September 23, 2016, Mr. Homer sent an email to Mr. Michaud, the community manager, expressing his displeasure with how his complaints were being handled. He also pointed out that "I have a disability." The email did not identify the nature of the disability, and it did not identify or request an accommodation for his alleged disability. There is no evidence that Respondents knew or should have known that Mr. Homer had a disability or the nature of the disability. Also, there is no evidence that narcolepsy is a physical impairment "which substantially limits one or more major life activities" so as to fall within the definition of a handicap under the FFHA. See § 760.22(7)(a), Fla. Stat. Here, Petitioner only contends that at times it causes him to speak loudly or yell at other persons. As a follow-up to his email, on September 26, 2016, Mr. Homer spoke by telephone with Mr. Michaud and reminded him to look into the complaints identified in his email. If a request for an accommodation ("work with me") was ever made, it must have occurred at that time, but no proof to support this allegation was presented. Mr. Homer acknowledged that he was told by Mr. Michaud that in the future, he must communicate by email with staff and board members rather than personally confronting them in a loud and argumentative manner. On September 26, 2016, Mr. Michaud sent a follow-up email to Mr. Homer informing him that he must "work with my staff, without getting loud or upset, no matter how frustrated you may be at the time." The email also directed staff to answer Mr. Homer's questions regarding repairs for water damage to his unit, to "look into some late charges on his account," and to "work with Mr. Homer to help him get both his unit and his account in order." On November 15, 2016, Mr. Homer filed his Complaint with the FCHR alleging that on September 26, 2016, Golfside, Hara, and Mr. Michaud had violated the FFHA by "collectively" denying his reasonable accommodation request. Later, a Petition for Relief was filed, which alleges that Gulfside and Hara (but not Mr. Michaud) committed the alleged housing violation. However, the findings and conclusions in this Recommended Order apply to all Respondents.
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, with prejudice. DONE AND ENTERED this 14th day of December, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 December, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) John Homer Unit 609 1000 South Semoran Boulevard Winter Park, Florida 32792-5503 Candace W. Padgett, Esquire Vernis & Bowling of North Florida, P.A. 4309 Salisbury Road Jacksonville, Florida 32216-6123 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction.
Findings Of Fact Petitioner alleges in the petition that she was “the victim of racial discrimination and unfair business practice” in August 2007 when she went into Respondent’s store to purchase a cellular phone and one of Respondent’s employees became hostile and yelled racial epithets at her for no apparent reason.2/ The petition refers to Respondent as “a phone store.” The Executive Director of FCHR advised Petitioner in a letter dated October 8, 2008, that FCHR does not have jurisdiction to investigate her discrimination complaint. The letter explained the basis for this determination as follows: The information provided indicates that [Respondent] is strictly a retail store. It is not in the business of providing lodging, selling food for consumption on the premises, and is not a gasoline station or a place of exhibition or entertainment. Moreover, no covered establishment is located within [Respondent]’s actual physical boundaries. Therefore, [Respondent] is not a “public accommodation” as defined [in Section 760.02(11), Florida Statutes]. The petition was filed with FCHR on November 14, 2008.3/ The petition does not allege that Respondent is a “public accommodation” as defined by statute. Rather, as noted above, it characterizes Respondent as “a phone store.” The petition includes two attachments. The first attachment provides a narrative of the alleged discrimination. The second attachment includes excerpts from Sections 760.01 and 760.06, Florida Statutes, and what amounts to legal argument concerning the scope of FCHR’s duties under those statutes and Section 760.07, Florida Statutes. On December 2, 2008, the undersigned entered an Order to Show Cause because the petition did not appear to raise any disputed issues of material fact as to whether Respondent is a “public accommodation.”4/ The Order to Show Cause directed Petitioner to: show cause in writing as to why an Order Closing File or a Recommended Order of Dismissal should not be entered for the reasons set forth above and/or Petitioner shall file an amended petition that identifies the factual basis upon which she contends that Respondent is a “public accommodation” . . . . The Order to Show Cause advised Petitioner that: Failure . . . to allege disputed issues of fact as to whether Respondent is a “public accommodation” will result in the entry of an Order Closing File or a Recommended Order of Dismissal. Petitioner filed a response to the Order to Show Cause on December 16, 2008. The response does not include any factual allegations that would establish that Respondent is anything other than a retail store. The response simply includes what amounts to additional legal argument concerning the scope of FCHR’s jurisdiction. Neither the petition, nor the response to the Order to Show Cause raises factual allegations that, if proven, would establish that Respondent is a “public accommodation” as defined by statute. Moreover, based upon the petition’s characterization of Respondent as “a phone store,” there is no dispute concerning the determination in the Executive Director’s letter that Respondent “is strictly a retail store” and not a “public accommodation.” This is the only material issue as this case is presently postured.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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, 2008.
The Issue Whether Respondents, Donna and Randy Morrison, managers of Hillside Mobile Home Park, discriminated against Petitioners, Linda Parah and Andrew Loveland, Sr., by failing to make reasonable accommodation for Petitioners' service animal necessary to afford equal opportunity to use and enjoy the rental premises in violation of the Fair Housing Act, Sections through 760.37, Florida Statutes (2004).1
Findings Of Fact Based upon observation of the witnesses' demeanor and manner while testifying, character of the testimony, internal consistency, and recall ability; documentary materials received in evidence; stipulations by the parties; and evidentiary rulings during the proceedings, the following relevant and material facts are found: On June 24, 2004, Andrew Loveland, Sr., made application for tenancy at Hillside Mobile Home Park, Inc. (Hillside), 39515 Bamboo Lane, Zephyrhills, Florida 33542, when he completed and signed Respondents' "Application for Tenancy" form. The prospective tenants listed were Andrew Loveland, Sr., and Linda Parah. Ms. Parah did not sign the application. As of June 24, 2005, Petitioners listed their then-current address as 5824 23rd Street, Lot 1, Zephyrhills, Florida 33542. The application for tenancy form listed Ms. Parah as one of the persons to reside in the rental dwelling and, as such, was a "person associated with the intended renter," Mr. Loveland. The tenancy application signed by Mr. Loveland contained the following acknowledgement: [U]nder penalty of perjury, I declare that I have read the foregoing and the facts alleged are true to the best of my knowledge and belief. I hereby acknowledge that I have received a copy of the Prospectus and Rules and Regulations of Hillside Mobile Home Park, Inc. Mr. Loveland, though present at the proceeding, chose not to challenge his written acknowledgment of receiving a copy of the Prospectus and the Rules and Regulations of Hillside, and the undersigned accordingly finds that Mr. Loveland received a copy of the Prospectus and the Rules and Regulations of Hillside on June 24, 2004, and was fully informed of his duties and obligations as a tenant of Hillside therein contained. On June 24, 2004, neither Mr. Loveland nor Ms. Parah informed or advised management of any medical disability(s) suffered, requiring companionship (living in the trailer) of a dog (comfort or service). Petitioners did not, at that time, request Respondents to make any reasonable accommodations for any mental and/or physical disability(s) that required the presence of their service dog in the rented premises. No copy of management's park prospectus or rules was offered in evidence, and, accordingly, a finding of receipt thereof is made, but no findings herein are based on the specific content therein. On or after June 24, 2004, Petitioners and their dog occupied the leased premises 6528 Pecan Drive, Hillside Mobile Home Park, Zephyrhills, Florida 33542. The credible evidence of record convincingly demonstrated management had knowledge that Petitioners and several other park tenants owned dogs. Tenants, often times together, walked their dogs about the trailer park in sight of management and other residents. Based upon the above, it is concluded that management was or should have been aware that other tenants, including Petitioners, had dogs in the trailer park. On October 21, 2004, management, by and through its attorney, by certified mail, made demand upon Petitioners to cure noncompliance within seven days (October 28, 2004) or vacate premises for noncompliance with the park prospectus or rules, to wit: You have been driving your golf cart behind and between mobiles. Residents must govern themselves in a manner that does not unreasonably disturb or annoy other residents. We have had several complaints regarding this issue. Please drive and walk on the streets only. (Emphasis added) Ms. Parah acknowledged the golf car incident, explaining that Mr. Loveland occasionally drove his golf cart through the trailer park and not always on the walkways during the evening hours. She insisted, however, that after receipt of the October 21, 2004, notice to cease from management, Mr. Loveland discontinued driving his golf cart behind and between mobile homes during the evenings and nights and, during the day, restricted his cart driving to only the park roadways. By letter dated November 5, 2004, to Mr. Loveland, Respondents issued a "Notice of Termination of Tenancy," for failure to correct the (October 21, 2004, notice of violation-- driving golf cart) within seven days. Accordingly, his tenancy was to be terminated 35 days from the postmarked date of delivery of the notice. On November 11, 2004, S. D. Hostetler, a tenant whom management did not call to testify, allegedly filed the following hand-written complaint letter to management: On 11-3-04 at around 3 am I was awaken by a loud sound. I got up to see what it was and it was an older red golf cart going through the camping section, it must not have a muffler on it, that morning I did complain to the management about some one going around the Park that early in the morning with such a noisey [sic] scooter. I later found out it was Andrew Loveland. The above-written document was not notarized; the author was not made available and subject to cross-examination. This document therefore is unsupported hearsay and insufficient to support and establish the factual content therein to wit: "[O]n 11-3-04 around 3 a.m., Mr. Loveland was driving his golf cart through the camping section and, thus, failed to correct the October 21, 2004, notice of violation--driving golf cart, within 7 days." This complaint did, however, establish the fact that management received a complaint about Mr. Loveland from another tenant after having given him notice to cease and desist. On November 18, 2004, two weeks after the golf cart notice of noncompliance termination, Respondents, by certified mail delivered on November 22, 2004, made demand upon Petitioners to cure noncompliance within seven days or vacate premises for a second noncompliance with the park prospectus or rules, to wit: "(A) You have a dog and dogs are not allowed in the park." The November 22, 2004, copy of the notice to cure noncompliance was received by Mr. Loveland as evidenced by a copy of a U.S. Certified Mail delivery receipt signed by Mr. Loveland. In the December 13, 2004, letter from Attorney Schlichte addressed to Andrew Loveland (only), Re: Notice of Termination of Tenancy (reference November 18, 2004, 1st Notice of Rule Violation; i.e. you have a dog and dogs not allowed), Petitioners were given 30 days to vacate the premises. It is significant and noted that as of December 13, 2004, Ms. Parah had not made a demand or request upon management for "reasonable accommodations for her service animal necessary to afford the Petitioner an equal opportunity to use and enjoy the rental premises," as alleged in the administrative complaint. Ultimate Factual Determinations On February 28, 2005, 76 days after receipt of management's December 13, 2004, first Notice of Rule Violation (no dog allowed) and filing of Eviction Compliant in Pasco County Court,2 Petitioners made their first written request to management for reasonable accommodation under the American Disabilities Act as follows: Dear Sir: I am requesting reasonable accommodation under the American with Disability Act to have rules and regulations of the Park (Hillside) sent to me. On my pet. I have documentation from my physician Joseph Nystrom, M.D. on my service, my comfort dog. And this can be furnished upon request! Rules and Regulations were not clear to fact that Mr. Andrew Loveland, Sr. never had them unless you can show pictures on the grass 10/21/2004. I feel that your violating Mr. Loveland and my civil right under fair housing rules. [sic] Please acknowledge our reasonable accommodation as stated above by Tuesday of next week 3/8/2005. Accordingly, Linda Alan Parah Andrew Alton Loveland, Sr. cc: C.J. Miles Deputy Dir. Fair Housing Continu [sic], Inc., 1-888-264-5619. Having provided a copy of the Prospectus and the Rules and Regulations of Hillside on June 24, 2004, to Mr. Loveland, management's refusal to provide a second copy was a reasonable nondiscriminatory business decision. The offer to provide "documentation from my physician Joseph Nystrom, M.D. on my service, my comfort dog," imposed no obligation upon management to accept such offer. Within the totality of circumstances then present, ignoring Petitioners' offer to provide medical and/or willingness statements regarding their medical, physical, and mental disabilities, requiring the presence of a service/comfort dog by Respondents, is not found to have been discriminatory. On or about May 19, 2005, Pasco County Court entered Final Judgment of Eviction against Andrew Loveland and Unknown Tenant (i.e. Linda Parah). The Pasco County Sheriff's Office, pursuant to Final Judgment of Eviction for Removal of Tenant entered by the Pasco County Court, evicted Petitioners from Respondents' rented premises of Hillside, 39515 Bamboo Lane, Zephyrhills, Florida 33542. Petitioners submitted an abundance of credible evidence relating to their physical and mental health conditions. As to Mr. Loveland, Dr. Nystrom's written and signed notation concluded that Mr. Loveland's condition required: "Motorized wheelchair multi-level spinal stenosis- medically necessary and due to his illness, the presence of his little Dog is medically necessary." The document contained hearsay evidence to which counsel for Respondents did not raise an objection and is, thus, accepted by the undersigned. This document was dated after the date Mr. Loveland received his second notice regarding failure to correct and the filing of the complaint for eviction. As to Ms. Parah, Tracey E. Smithey, M.D., East Pasco Medical Group, reported her medical conclusion stating in part that: "Linda Parah, was seen in my office on 11-20-03, 01-19-04 and today (April 8, 2004). She had been diagnosed with Bipolar Disorder, Depressed type. She is prescribed Paxi, Xanax, and Ambien. She has been referred for psychotherapy also." Dr. Smithey did not include in her written document that Ms. Parah had to have a dog for her condition. Dr. Smithey, as had Dr. Nystrom, signed the document. The document contained hearsay evidence to which counsel for Respondents did not raise an objection and is, thus, accepted by the undersigned. Had Petitioners made their request for reasonable accommodations and presented their medical reports, evidencing their medical conditions and limitations, to include the need of Mr. Loveland for his comfort dog, to Respondents on or before June 24, 2004, or even as late as on or about November 18, 2004, Petitioners would have, arguably, established the requisite basis for finding of a request for reasonable accommodation. There is, however, insufficient evidence of record to support a finding that Petitioners, Mr. Loveland nor Ms. Parah, made a reasonable accommodation request to Respondents for the housing of the comfort dog for Mr. Loveland. The sequence of dated events and documented evidence is an inference that after receiving the notice to vacate for the two alleged rule violation(s), Petitioners did not make a request for reasonable accommodation to management for Mr. Loveland's dog, but rather offered to provide medical support of Mr. Loveland's need for a comfort dog should Respondents request such proof. Respondents were under no duty or obligation to do so and did not make such a request.3 Petitioners failed to establish that either Mr. Loveland or Ms. Parah: (1) made a request for reasonable accommodation based upon the demonstrated disability of Mr. Loveland; (2) the animal in question was a medically required service (comfort dog) animal for Mr. Loveland; (3) the requested accommodation was necessary to permit full enjoyment by Mr. Loveland of the rental premises; and (4) thereafter, management denied their reasonable accommodation request for Mr. Loveland. In short, and based upon the findings of fact herein, Respondent did not unlawfully discriminate against Petitioners; rather, management terminated Petitioners' tenancy for legitimate, nondiscriminatory reasons, to wit: off-road driving of a golf cart and unapproved dog within the rental unit in violation of park rules and regulations after written notice to correct the noted violations. Management's Counsel's Motion for Attorney's Fees and Costs There is not a scintilla of evidence to substantiate a finding that Petitioner, Mr. Loveland, who did not testify, knew or should have known that his claim and defense presented during this proceeding was not supported by material facts. Likewise, Respondent made no query of Ms. Parah (referred to in the eviction complaint as "unnamed tenant") that elicited statements or acknowledgements from which reasonable inference could be drawn to demonstrate that within the situational circumstances Ms. Parah knew or should have known the claim herein made was not supported by material facts.4
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order: Dismissing Petitioners', Linda Parah and Andrew Loveland's, Petition for Relief; and Denying Respondents' counsel's motion for an award of attorney's fees and costs. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2006.
The Issue The issue is whether Respondent, Steak n Shake Restaurant (“Steak n Shake”), violated section 760.08, Florida Statutes,1/ by discriminating against Petitioner based on his race.
Findings Of Fact Petitioner is a white male who lives in Ormond Beach, Florida. Petitioner testified that he had been a regular customer of the Steak n Shake at 120 Williamson Boulevard in Ormond Beach for about four years. Petitioner entered the restaurant on March 30, 2015, and was seated by server Amanda Hobbs, a black female. Petitioner testified that neither Ms. Hobbs nor any other server would wait on him. He saw Ms. Hobbs take the order of a black couple who came into the restaurant after he did. Petitioner complained to the manager, Mark Regoli, a male of mixed race. Petitioner testified that he told Mr. Regoli that the service had been poor for several months, and complained about not being served on this occasion. Petitioner stated that Mr. Regoli accused him of being “loud,” but explained that he is hearing-impaired and may sometimes speak in a loud voice. Petitioner testified that Mr. Regoli became angry, “got up in my face,” and blocked Petitioner from leaving the restaurant. Petitioner testified that he left the restaurant. It was only later that he learned that the police had been called by someone at Steak n Shake. Counsel for Steak n Shake did not cross-examine Petitioner. Steak n Shake called no witnesses. Steak n Shake’s documentary evidence consisted of hearsay witness statements that cannot be considered in the absence of admissible evidence that the hearsay may be said to supplement or explain. Therefore, Petitioner’s narrative is the only sworn, admissible evidence before this tribunal. Though Petitioner’s testimony was clearly a self-serving version of the events that occurred at the Steak n Shake on March 30, 2015, it is the only version of events that may be considered under the rules of evidence. Petitioner’s testimony lacks complete credibility only when one compares it with the excluded witness statements of the Steak n Shake employees. If one considers Petitioner’s testimony standing alone, as this tribunal must, the worst one can say is that it is one-sided and incomplete. This state of affairs is not the fault of Petitioner, who was under no obligation to tell anything other than his side of the story. Petitioner represented himself and so is not entitled to attorney’s fees. Petitioner may be entitled to an award of costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Steak n Shake Restaurant, committed an act of public accommodations discrimination against Petitioner, Virgil W. Phillips; Prohibiting any future acts of discrimination by Respondent; and Awarding Petitioner his costs. DONE AND ENTERED this 29th day of April, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2016.
The Issue Whether Respondent committed the violation alleged in Petitioner's Public Accommodations Complaint of Discrimination and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a black woman. On March 27, 2007, Petitioner went shopping at the Wal- Mart Supercenter located at 9300 Northwest 77th Avenue in Hialeah Gardens, Florida (Store). This was Petitioner's "favorite store." She had shopped there every other week for the previous four or five years and had had a positive "overall [shopping] experience." At no time had she ever had any problem making purchases at the Store. At around 5:00 p.m. on March 27, 2007, Petitioner entered the Store's electronics department to look for two black ink cartridges for her printer. In her cart were several items she had picked up elsewhere in the store (for which she had not yet paid). Because the cartridges she needed were located in a locked display cabinet, Petitioner went to the counter at the electronics department to ask for assistance. Maria Castillo was the cashier behind the counter. She was engaged in a "casual conversation," punctuated with laughter, with one of the Store's loss prevention officers, Jessy Fair, as she was taking care of a customer, Carlos Fojo, a non-black Hispanic off-duty lieutenant with the Hialeah Gardens Police Department. Lieutenant Fojo was paying for a DVD he intended to use as a "training video." The DVD had been in a locked display cabinet in the electronics department. A sales associate had taken the DVD out of the cabinet for Lieutenant Fojo. It was Store policy to require customers seeking to purchase items in locked display cabinets in the electronics department to immediately pay for these items at the electronics department register. Lieutenant Fojo was making his purchase in accordance with that policy. Two Store sales associates, Carlos Espino and Sigfredo Gomez, were near the counter in the electronics department when Petitioner requested assistance. In response to Petitioner's request for help, Mr. Espino and Mr. Gomez went to the locked display cabinet to get two black ink cartridges for Petitioner, with Petitioner following behind them. Ms. Castillo and Mr. Fair remained at the counter and continued their lighthearted conversation, as Ms. Castillo was finishing up with Lieutenant Fojo. Petitioner was offended by Ms. Castillo's and Mr. Fair's laughter. She thought that they were laughing at her because she was black (despite her not having any reasonable basis to support such a belief). She turned around and loudly and angrily asked Ms. Castillo and Mr. Fair what they were laughing at. After receiving no response to her inquiry, she continued on her way behind Mr. Espino and Mr. Gomez to the display cabinet containing the ink cartridges. When Mr. Espino arrived at the cabinet, he unlocked and opened the cabinet door and removed two black ink cartridges, which he handed to Mr. Gomez. Petitioner took the cartridges from Mr. Gomez and placed them in her shopping cart. Mr. Espino tried to explain to Petitioner that, in accordance with Store policy, before doing anything else, she needed to go the register in the electronics department and pay for the ink cartridges. Petitioner responded by yelling at Mr. Espino and Mr. Gomez. In a raised voice, she proclaimed that she was "no thief" and "not going to steal" the ink cartridges, and she "repeated[ly]" accused Mr. Espino and Mr. Gomez of being "racist." Instead of going directly to the register in the electronics department to pay for the cartridges (as she had been instructed to do by Mr. Espino), Petitioner took her shopping cart containing the ink cartridges and the other items she intended to purchase and "proceeded over to the CD aisle" in the electronics department. Mr. Espino "attempt[ed] to speak to her," but his efforts were thwarted by Petitioner's "screaming at [him and Mr. Gomez as to] how racist they were." Lieutenant Fojo, who had completed his DVD purchase, heard the commotion and walked over to the "CD aisle" to investigate. When he got there, he approached Petitioner and asked her, "What's the problem?" She responded, "Oh, I see you too are racist and I see where this is coming from." Lieutenant Fojo went on to tell Petitioner the same thing that Mr. Espino had: that the ink cartridges had to be taken to the register in the electronics department and paid for immediately ("just like he had paid for his [DVD]"). Petitioner was defiant. She told Lieutenant Fojo that she would eventually pay for the cartridges, but she was "still shopping." Moreover, she continued her rant that Lieutenant Fojo and the Store employees were "racist." "[C]ustomers in the area were gathering" to observe the disturbance. To avoid a further "disrupt[ion] [of] the normal business affairs of the [S]tore," Lieutenant Fojo directed Petitioner to leave and escorted her outside the Store. In taking such action, Lieutenant Fojo was acting solely in his capacity as a law enforcement officer with the Hialeah Gardens Police Department. Once outside the Store, Lieutenant Fojo left Petitioner to go to his vehicle. Petitioner telephoned the Hialeah Gardens Police Department to complain about the treatment she had just received and waited outside the Store for a police officer to arrive in response to her call. Officer Lawrence Perez of the Hialeah Gardens Police Department responded to the scene and met Petitioner outside the Store. After conducting an investigation of the matter, Officer Perez issued Petitioner a trespass warning, directing that she not return to the Store. At no time subsequent to the issuance of this trespass warning has Petitioner returned the Store (although she has shopped at other Wal-Mart stores in the area). While Petitioner has been deprived of the opportunity to shop at the Store, it has been because of action taken, not by any Store employee, but by Hialeah Gardens law enforcement personnel. Moreover, there has been no showing that Petitioner's race was a motivating factor in the taking of this action.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing Petitioner's Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2006.
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to make an appearance at hearing.
Findings Of Fact On January 7, 2011, the undersigned issued the Initial Order in this case. Petitioner and Respondent responded to the Initial Order. On February 10, 2011, the undersigned issued a Notice of Hearing, scheduling the hearing for March 28, 2011. The Notice of Hearing was not returned as undeliverable to Petitioner. Indeed, Petitioner wrote and filed several letters regarding her upcoming hearing and case in general. On March 18, 2011, the hearing was convened as scheduled. After waiting 15 minutes, Petitioner did not appear at the hearing and did not contact the undersigned’s office regarding any problem with commencing the hearing as scheduled. Accordingly, no evidence to support Petitioner’s allegations was introduced at the hearing. Given this lack of evidence, the Petition for Relief should be dismissed.
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. DONE AND ENTERED this 15th day of April, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGR 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 15th day of April, 2011. COPIES FURNISHED: Gayle Wilburn 1006 East Johnson Avenue, #4 Pensacola, Florida 32514 Robert E. Larkin, Esquire Allen Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
