The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2014.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's religion.
Findings Of Fact The final hearing in this case was scheduled for March 14, 2007. Mr. West was provided notice of the hearing. Neither Mr. West nor any representative of Mr. West appeared at the final hearing. Mr. West has not advised the undersigned or the Division of Administrative Hearings why he did not appear at the final hearing. Mr. West failed to present any evidence to support the allegations in his petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. West's Petition for Relief. DONE AND ENTERED this 23rd day of March, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 23rd day of March, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Eric E. Ludin, Esquire Tucker & Ludin, P.A. 13577 Feather Sound Drive, Suite 300 Clearwater, Florida 33762 Jack G. West Post Office Box 1765 St. Petersburg, Florida 33731 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 Whether Petitioner has been the subject of discrimination in a public accommodation due to a disability.
Findings Of Fact Petitioner, Cari Anderson, is a veteran of the Iraq War and has Post Traumatic Stress Disorder (PTSD). Her PTSD is sufficiently severe so as to constitute a disability under Florida law. Because of her disability, Petitioner keeps with her two small poodle-type service dogs that help her remain calm. Petitioner also trains such service dogs. On April 5, 2009, Petitioner was visiting her friend, Michelle Clas-Williams, at her home in Panama City, Florida. During her visit at around 2:00 in the morning, Petitioner, along with her friend, and her friend’s daughter, decided to go shopping at the Wal-Mart store in Callaway, Florida. Petitioner brought along her two service animals to the Callaway Wal-Mart. Neither of the dogs wore any identification as service dogs; and therefore, could not be readily identified as such. Upon arrival, Petitioner and her friend obtained separate shopping carts. Petitioner placed her two dogs on the bottom of the shopping cart, on a towel. Petitioner and her shopping companions entered the main part of the store. No one from Wal-Mart stopped Petitioner from entering the store. Both she and her friend spent the next 20- 30 minutes shopping throughout the Callaway Wal-Mart store where surveillance cameras intermittently monitored their passage through the store. None of the surveillance footage has sound. As a consequence, the surveillance footage of Petitioner’s visit does not add support for either party’s version of the events in this case. During her time in the store, Petitioner walked freely throughout the aisles and was not prevented from shopping at the Callaway store. On at least two separate occasions, individual employees politely informed Petitioner that she could not have her dogs in the store. However, on each such occasion Petitioner explained to the employee that her dogs were service animals. The employees responded positively and Petitioner continued her shopping. There was no evidence that these employees communicated with Wal-Mart management. As Petitioner and her friend approached the checkout lines, the Customer Service Manager, Monica Amis, noticed Petitioner’s two dogs in her shopping cart. Ms. Amis walked up to Petitioner and said, “Ma’am those dogs cannot be in the store.” Before Ms. Amis could ask anything else, including whether the dogs were service animals, Petitioner erupted into a loud vocal tirade stating among other things, “You don’t tell me what the fuck to do. I can do what I want. I’m sick of Wal- Mart’s shit you think you own the world.” Ms. Amis could not get a word in and could not calm Petitioner down. Petitioner demanded the store manager be called and demanded that some papers which “proved” her dogs were service animals be looked at. Within minutes of first approaching Petitioner, Ms. Amis instructed the cashier to process Petitioner’s purchases. She then walked away and called the store manager. The better evidence did not demonstrate that Ms. Amis was rude or profane with Petitioner. The evidence did demonstrate that Ms. Amis’ actions in approaching and interacting with Petitioner were clearly reasonable and did not constitute discrimination against Petitioner. Shortly after Ms. Amis’ call, the store manager, Gary Wright, approached the front of the store. He could hear Petitioner yelling. He was very concerned about her behavior and the disturbance she was making. He approached her at the cash register. Mr. Wright asked Petitioner to calm down so he could speak with her. As she was paying for her items, Petitioner continued to yell loudly and use profanity. She was permitted to complete her transaction and no one from Wal-Mart interfered with her ability to do so. However, Petitioner remained belligerent, loud, and profane. Petitioner believed that her rights were being violated and that Ms. Amis and the manager could not tell her that her dogs could not accompany her in the store and if they inquired about them, they could only ask one specific question about whether her dogs were service dogs under an alleged agreement Wal-Mart recently entered into with the federal government. Petitioner’s beliefs about the meaning and scope of this alleged agreement, which was not introduced into evidence, is simply misplaced and does not establish any of the actions by either Ms. Amis or Mr. Wright as discriminatory acts. Like Ms. Amis, Mr. Wright could not get a word in. He understandably became exasperated with Petitioner and the conversation devolved with Mr. Wright telling Petitioner on at least two occasions to “shut up” and “shut the fuck up.” He also told her that he did not think poodles were service animals, but old-lady dogs. In the meantime, Petitioner was yelling about her papers and that Mr. Wright needed to look at them. Mr. Wright simply wanted Petitioner to leave the store. He also told her that he had no problems with the service dogs being in the store, but if she did not calm down, he would have to call the Bay County Sherriff’s office. Given Petitioner’s loud and irrational behavior it was reasonable for Mr. Wright to ask Petitioner to leave the store. When Mr. Wright informed Petitioner that he was calling the Sheriff’s office, Petitioner stated that she was glad they were coming. She wanted their assistance. Mr. Wright walked away and called the Sheriff’s office. There was no evidence that Mr. Wright made a false report to the Sheriff’s office. Additionally, Petitioner called 911 to confirm that an officer was en-route. Likewise, given Petitioner’s continued behavior and her assent to the call, it was reasonable for Mr. Wright to call the Sheriff’s office. Notably, the entire interaction between Petitioner, Ms. Amis, and Mr. Wright took less than 10 minutes. After completing her purchase, Petitioner remained at the checkout lane while her friend, who was in another checkout lane, paid for her merchandise. Petitioner continued yelling, using profanity, and causing a disturbance. Then Deputy, now Investigator, VanStrander arrived outside of Wal-Mart’s east entrance doors and was met by Mr. Wright. Mr. Wright informed Investigator VanStrander that Petitioner was making a scene and being very loud and disruptive. Indeed, Investigator VanStrander could hear Petitioner yelling while he was outside the store and she was inside the store. Mr. Wright did not ask the officer to arrest Petitioner. Once both Petitioner and her friend had completed their purchases, they began walking toward the exit, with Petitioner continuing to yell. Investigator VanStrander entered the store and was immediately approached by Petitioner who was screaming and “cussing like a sailor.” Investigator VanStrander instructed Petitioner that she needed to leave the store. He also informed her that she would be arrested if she did not comply. Petitioner did not immediately follow his instructions. Instead she attempted to argue her position and show the officer her papers. He again instructed her to leave and motioned to the door. He did not block the doorway as Petitioner claimed that he did. She again did not immediately comply and within seconds the officer arrested Petitioner. With little to no struggle she was handcuffed, placed into custody, and charged with disorderly conduct and resisting an officer without violence. Petitioner’s interaction with the deputy while in the store lasted less than 5 minutes. Importantly, the evidence clearly demonstrated that the decision to arrest Petitioner was made by Investigator VanStrander. Respondent was not responsible for the actions of the officer or for Petitioner's behavior which led to her arrest. Given these facts, 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 Petitioner’s Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of November, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 1st day of November, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amy Harrison Turci, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cari Anderson Post Office Box 371792 Las Vegas, Nevada 89137 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this matter are whether Respondent, Walmart, violated section 760.08, Florida Statutes, by discriminating against Petitioner based on his race; and, if so, the relief to which Petitioner is entitled.
Findings Of Fact On March 6, 2017, Petitioner, who is Hispanic, visited the Walmart in his neighborhood in Tampa (store #5255) to make several purchases. Petitioner is a frequent customer of the store, shopping there every two to three days. After selecting several items and placing them in a cart, Petitioner proceeded to the self-checkout area. When he arrived at the self-checkout section, Petitioner found all the registers in use by other customers. So, he waited for an opening. As he stood with his cart, Petitioner observed a Walmart employee, Dipti Vora, stationed in the self-checkout area. Ms. Vora was working as the self-checkout “hostess” to assist and monitor the customers using the self-checkout registers. Petitioner was familiar with Ms. Vora who he had seen on previous visits. Petitioner recalled that they exchanged pleasantries while he waited for a free register. While he waited, Petitioner noticed another Walmart employee, who he later learned was Sara Revelia, walk up to Ms. Vora. As Ms. Revelia approached Ms. Vora, Petitioner saw her raise a finger to her eye, and then point her finger at him. Petitioner also observed Ms. Revelia give him a nasty look. Petitioner interpreted Ms. Revelia’s actions as instructing Ms. Vora to “keep an eye on him” because she suspected that he might steal something. Petitioner believed that Ms. Revelia, who appeared to be white, pointed at him solely because he is Hispanic. Petitioner expressed that he did not see Ms. Revelia point at any other customers. Petitioner particularly noted that Ms. Revelia did not point to any other white customers who were waiting in the self-checkout area. Petitioner was so upset by Ms. Revelia’s presumptuous gesture that he abandoned his cart in the self-checkout area and left the store without purchasing his items. Petitioner declared that he has never returned to that Walmart store and has no plans to ever shop there again. Petitioner was very embarrassed and disturbed by Ms. Revelia’s action singling him out to be watched. Petitioner is convinced that Ms. Revelia racially profiled him because he is Hispanic. Based on her demeanor, Petitioner declared that Ms. Revelia acted in a very arrogant and authoritative manner and prejudged his character. When questioned by Walmart at the final hearing, Petitioner conceded that he did not hear any words pass between Ms. Vora and Ms. Revelia. Nor did any Walmart employee (including Ms. Revelia) accuse him of stealing or instruct him to leave Walmart. However, Petitioner firmly believes that Ms. Revelia perceived him as a thief or a bad person who might not pay for the items he was carrying. Petitioner asserts that Ms. Revelia’s action was an “injustice,” and Walmart must take responsibility for its employee’s actions. Walmart denied that it failed to allow Petitioner access to its facility or services or took any actions based on his race. Walmart further asserts that at no time did it ask Petitioner to leave or refuse to sell him the items he wished to purchase. Walmart specifically refuted Petitioner’s allegation that an employee suspected that he was going to steal from the store or singled him out as a thief. Walmart presented the testimony of Ms. Vora, the employee who was assigned as the “hostess” in the self-checkout area at the time of Petitioner’s visit. Ms. Vora had worked in store #5255 for approximately 12 years. She was familiar with Petitioner and had regularly seen him shopping at that Tampa Walmart. Ms. Vora recalled the incident involving Petitioner. Ms. Vora also remembered the encounter with Ms. Revelia, the employee who allegedly pointed at Petitioner. Ms. Vora testified that while Petitioner was standing in the self-checkout area, another customer with a baby stroller was also waiting to use a register. Just at that moment, Ms. Revelia walked up to her and alerted her to watch the woman with the stroller. Ms. Vora explained that the woman had placed several items in the open compartment below the stroller seat. Ms. Revelia was cautioning her to ensure that the woman did not neglect to scan all the items she brought to the register, specifically including the items in the lower section of the stroller. Ms. Vora stated that Ms. Revelia was not pointing at Petitioner. Instead, she was signaling Ms. Vora to monitor the woman pushing the stroller, who was standing just ahead of Petitioner. Ms. Vora also recalled that, after Ms. Revelia walked away, Petitioner approached her and asked who was the employee who had just talked to her. At that time, Ms. Vora did not know Ms. Revelia’s name because she was visiting from another store. Ms. Revelia testified at the final hearing. Ms. Revelia is an Asset Protection Manager for Walmart. She principally works in a Walmart store in Largo, Florida. However, she does visit the Tampa store regularly as part of her area of assignment. Ms. Revelia explained that her job duties include overseeing inventory preparation and compliance at Walmart facilities, as well as assisting with the detection and apprehension of shoplifters. She was specifically trained on how to “shrink” financial losses at Walmart facilities due to theft. Ms. Revelia relayed that she was instructed to constantly watch for any suspicious behavior from Walmart customers. Ms. Revelia recalled working at the Walmart Petitioner visited on March 6, 2017. However, she did not remember talking to Ms. Vora, pointing at a customer, or seeing Petitioner while he waited in the self-checkout area. Instead, Ms. Revelia conveyed that she was primarily focused on helping store #5255 prepare for its annual inventory. Although she did not recall specifically pointing out a customer to Ms. Vora, Ms. Revelia described suspicious situations she frequently sees that cause her alarm. Such activity includes customers who wear heavy jackets in summer or carry open backpacks. In addition (and particularly relevant to this matter), Ms. Revelia is also cognizant of customers who bring in strollers that are equipped with a compartment or shelf under the baby seat. Ms. Revelia expounded that, in her experience as an asset manager, she has personally witnessed customers place goods and items in a stroller’s “undercart” and forget (either intentionally or unintentionally) to scan them at the self- checkout register. Despite not remembering the incident involving Petitioner, Ms. Revelia offered that, if she did walk by the self-checkout area and saw a stroller with items stored under the seat, she very well may have instructed the hostess to “keep an eye on” that customer. Conversely, Ms. Revelia denied that she would point at any Walmart customer simply because he or she was Hispanic. Neither would she automatically suspect that a customer would steal from Walmart because of their race. Ms. Revelia adamantly denied that she took any discriminatory action against Petitioner. As additional evidence that Walmart did not discriminate against Petitioner, Elsie Rodriguez, the store manager for store #5255, testified that approximately 70 percent of the customers who shop at her store are Hispanic. Furthermore, in light of the populace it serves, store #5255 specifically offers Spanish based foods and other products catering to the Latino community. Consequently, Ms. Rodriguez asserted that it would not make sense for Walmart, or any of its employees, to discriminate against its Hispanic customers. Walmart also maintains a Statement of Ethics and Discrimination, as well as a Harassment Prevention Policy, which prohibit discrimination by its employees based on race and national origin. Ms. Rodriguez also testified that store #5255 does not hold itself out as, nor does it include, a cafeteria, dining facility, or restaurant. Ms. Rodriguez explained that store #5255 is a “Neighborhood Market.” The store does not offer food principally for consumption on its premises. Neither does it contain an area where customers can sit and dine. Instead, all the facility sells is groceries. In response to the testimony from the Walmart witnesses, Petitioner insisted that the Walmart employees were not telling the truth. Petitioner vigorously maintained that Ms. Revelia was pointing at him and not another customer with a baby stroller. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Walmart discriminated against Petitioner based on his race. Accordingly, Petitioner failed to meet his burden of proving that he was denied full and equal enjoyment of goods or services in a place of public accommodation in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Walmart, is not a “place of public accommodation” under the facts of this case; and, even if it were, that Respondent did not unlawfully discriminate against Petitioner’s race. Petitioner’s Petition for Relief should be dismissed. DONE AND ENTERED this 10th day of July, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2018.
