09-006825 Patrick Mcnamara, M.D. vs. Walt Disney World Status: Closed Recommended Order on Thursday, October 7, 2010.

Summary: The Division of Administrative Hearings has no jurisdiction in a case with no adequate legal remedy to redress alleged past discrimination and no equitable authority to prohibit alleged future discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICK MCNAMARA, M.D. , )

)

Petitioner , )

)

vs. ) Case No. 09 - 6825

)

WALT DISNEY WORLD , )

)

Respondent . )

)

RECOMMENDED ORDER OF DISMISSAL

The parties agreed to a schedule by which they briefed

numerous issues of record. The memoranda the parties filed

pursuant to their briefing schedule are matters of record and

are not repeated in this Order. This Order refers only to those

memoranda the undersigned co nsiders material to the Order.

On July 21, 2010, Petitioner filed PetitionerÓs Brief on

Available Remedies. On July 22, 2010, Respondent filed Walt

Disney World Co.'s Motion t o Dismiss f or Lack of Standing a nd

Jurisdiction (Motion to Dismiss). On August 17, 2010,

Petitioner filed Petitioner Dr. McNamaraÓs Response to

Respondent DisneyÓs Motion t o Dismiss o n Standi ng a nd

Jurisdiction (Response to the Motion to Dismiss), and Respondent

filed Walt Disney World Co.Ós Response to PetitionerÓs Brief on

Available Remedies (Response on Available Remedies). For the

reasons stated in this Order, it is recommended that the M otion

to Dismiss should be GRANTED.

APPEARANCES

For P etitioner: A ar on C. Bates, Esquire

Bates Mokwa, PLLC

126 East Jefferson Street

Orlando, Florida 32801

David Ferleger, Qualified Representative

Archways Professional Building

413 Johnson Street, Suite 203

Jen k intown, Pennsylvania 19046

For Respondent: Kerry Alan Scanlon, Esquire

Jeremy M. White, Esquire

Kaye Scholer, LLP

The McPherson Building

901 Fifteenth Street, Northwest

Washington, D.C. 20005

STATEMENT OF THE ISSUE S

The issues a re whether Petitioner has standing , and whether

the Division of Administrative Hearings ( DOAH ) has authority

under Subsection 26.012(2)(c), Section 89.011, and Subsection

760.11(6), Florida Statutes (2009), 1 to grant the relief

reques ted in the Petition fo r Relief.

PRELIMINARY STATEMENT

A final hearing has not been conducted in this proceeding.

No findings are made concerning any disputed issues of fact. 2

Some undisputed facts are discussed, together with the

procedural histo ry, in the Findings of Fact.

A dministrative Law Judge (ALJ) Daniel Manry conducted

numerous case management conferences and motion hearings in this

proceeding. Those conferences and motion hearings are matters

of record in the file of the Division of Administrative Hearings

(DOAH), an d the ALJ has not repeated that record in thi s Order.

After several conferences and motion hearings , the parties

agreed to a briefing schedule to address a number of legal

issues intended to narrow the scope of the final hearing. The

final hearing is curr ently continued to a date to be determined

after the resolution of the pending legal issues that are the

sub ject of the briefing schedule.

Between July 6 and July 26, 2010, the parties filed their

briefs and responses. Pursuant to that briefing schedule,

Respondent filed the Motion to Dismiss that precipitated this

Order.

FINDINGS OF FACT

1. On or about March 26, 2009, Petitioner filed a Public

Accommodation Complaint of Discrimination (Complaint) with the

Florida Commission on Human Relations (Commission). The

Complaint alleges, in relevant part, that Respondent

discriminated against him for reasons discussed hereinafter.

2. On November 9, 2009, the Commission issued a

Determination: Cause (Determination of Cause). The

Determination of Cause found there was reasonable cause to

believe that a "public accommod ation violation has occurred.Ñ

3. The Determination of Cause advised Petitioner that

Petitioner had the option of either requesting an administrative

hearing before DOAH or filing a civil action in court. In

relevant part, t he Determination of Cause provided:

The Complainant may request an

administrative hearing by filing a Petition

for Relief within 35 days of the date of

this Notice of Determination: Cause or

Complainant may file a civi l action within

one year of the date of this Notice of

Determination: Cause . ( E mphasis deleted)

The Determination of Cause at 1.

4. On December 14, 2009, Petitioner timely filed a

Petition for Relief with the Commission. The Petition for

Relief reques ted an administrative hearing, and the Commission

referred the request for hearing to DOAH.

5. When Petitioner filed the Petition for Relief on

December 14, 2009, Petitioner was pro se . Petitioner obtained

counsel on or about February 16, 2010. 3 The one - year period for

filing a civil action expires on or abou t November 9, 2010.

6. Several material facts are undisputed. Petitioner is a

male and is an individual with disabilities. Petitioner has

recognized impairments that substantially limit o ne or more

major life act ivities, including mobility.

7. Petitioner resides in Ohio. In 2009, Petitioner wanted

to travel to Disney World (Disney) in Orlando, Florida , to see

Petitioner's son play baseba ll at a Disney sports complex.

8. Petitioner wante d to bring his own personal mobility

device onto Disney property to assist with PetitionerÓs mobility

handicap. The mobility device is identif ied in the record as a

Segway.

9. Respondent refused to allow Petitioner to bring

Petitioner's personal Segway o nto Disney property. Respondent

does not allow any Segways onto Disney property.

10. Some of the disputed issues of fact are discussed at

this juncture to provide context in understanding the dispute

between the parties. However, no finding is made con cerning

these disputed facts, and no finding is required to dis pose of

the Motion to Dismiss.

11. Respondent alleges facts which, if proven in an

evidentiary hearing, may provide legitimate safety reasons for a

policy that prohibits Segways from Disney. Respondent argues

that its safety concerns have already been evidenced and

litigated in Federal District Court for the Middle District of

Florida. 4

12. The parties dispute whether Respondent made a

reasonable accommodation for Petitioner. Petitioner alle ges

that Respondent would not reserve and guarantee the availability

of a stand - up, four - wheel mobility device that Respondent had

purportedly developed but not yet deployed at Disney at the time

that Petition er wanted to travel to Disney.

13. Respondent disputes the claim that a four - wheel

mobility device was unavailable and not reserved for Petitioner.

In addition, Respondent alleges the availability of alternative

devices, including wheel chairs, that Respondent claims were

a dequate for PetitionerÓs ne eds.

14. The Petition for Relief, including the typed addendum

(Petition for Relief), seeks specific relief. The original,

handwritten version states:

I have been emotionally harmed, humiliated,

and denied participating in my sonÓs

important event - Î Disne y must alter its

policy to allow Segway use [by] the disabled

and pay me reasonable damages and punitive

damages of $50,000.

Petition for Relief (December 8, 2009) .

15. Any doubt concerning the intended meaning of the term

Ðreasonable damagesÑ in the fo regoing paragraph is resolved in

the typed addendum to the Petition for Relief. The typed

addendum states:

Disney should pay me reasonable damages for

the pain, humiliation, and loss I have

suffered of not less than $15,000 and

punitive damages of not les s than

$50,000. . . .

Petition for Relief (December 8 , 2009).

16. The Petition for Relief requests two types of relief.

One type of relief is damages. The other type of relief is an

order prohibiting Respondent from barring the use of Segways at

Disney (injunctive relief). 5

17. The damages requested in the Petition for Relief are

properly defined as non - quantifiable damages. The injunction

requested in the Petition for Relief is properly defined as

equitable relief. 6 The requested equitable rel ief is not limited

to the parties to this proceeding , but, if granted, would reach

all persons at Disney who might wish to use Segways.

18. For the reasons stated in the Conclusion s of Law, DOAH

has no statutory or constitutional authority to grant either

type of relief requested in the Petition for Relief. Nor does

DOAH have authority to grant relief not requested in the

Petition for Relief.

CONCLUSIONS OF LAW

19. DOAH has no authority to grant the request in the

Petition for Relief for non - quantifiable damages. DOAH is an

administrative agency, not a court imbued with constitutional

power pursuant to Article V of the Florida Constitution. See

Florida Department of Revenue v. WHI Limited Partnership, d/b/a

Wyndham Harbor Island Hotel , 754 So. 2d 205, 206 (Fla. 1st DCA

2000); Florida State University v. Hatton , 672 So. 2d 576, 579

(Fla. 1st DCA 1996)(each case holding that neither DOAH nor its

ALJs constitute a court). See also Johnson v. AlbertsonÓs LLC ,

2008 U.S. Dist. LEXIS 60230 ( August 6, 2008)(the Commission on

is not a state court for purposes of the federal removal statute

in 28 U.S.C. Section 1441); Bellsouth Telecommunications, Inc.

v. Vartec Telecom, Inc. , 185 F. Supp. 2d 1280 (N.D. Fla.

2002)(Florida Public Service Commissi on is an administrative

agency and not a court for purposes of the federal removal

statute). An administrative agency, including DOAH, has no

constitutional authority to grant non - quantifiable damages.

LaborersÓ International Union of North America, Loca l 478 v.

Myrtice Burroughs , 541 So. 2d 1160, 1162 (Fla. 1989); City of

Miami v. Wellman , 976 So. 2d 22, 27 (Fla. 3d DCA 2008)(each case

acknowledging that administrative agency is constitutionally

prohibited from awarding non - quantifiable damages).

20. DO AH has no authority to grant the request in the

Petition for Relief for injunctive relief enjoining Respondent

from barring the use of Segways at Disney. Remedies in the form

of injunctive relief are classic equitable remedies. Phillips

v. Cutler d/b/a V enetian Mobile Home Park , 388 So. 2d 48, 49

(Fla. 2d DCA 1980). In Florida, circuit courts have exclusive

jurisdiction over all cases in equity. § 26.012(2)(c);

Phillips , 388 So. 2d at 49.

21. DOAH has no authority to grant relief that is not

requested in the Petition for Relief. Only those claims

encompassed within the Petition for Relief are relevant matters

in this proceeding. See Cheek v. Peabody Coal Co. , 97 F.3d 200,

203 (7th Cir. 1996)(a claim must be raised in the EEOC complaint

to prosecute th e claim in the civil action); Chambers v.

American Trans Air, Inc. , 17 F.3d 998, 1003 (7th Cir. 1994)(only

those claims fairly encompassed within an EEOC charge can be the

subject of a lawsuit (the proceeding before the tribunal)).

22. The Petition for Relief is filed with the Commission,

not DOAH. Petitioner must petition the Commission to amend the

Petition for Relief. See , e.g. , Ward v. Cyberguard Corporation ,

2007 U.S. Dist. LEXIS 3593 (2007)(while a proceeding was pending

before DOAH, the petition er filed with the Commission a motion

to withdraw the petition for relief).

23. Petitioner argues that this proceeding should

determine whether Respondent discriminated against Petitioner (a

determination of liability). PetitionerÓs argument fails to

r ecognize the distinction between Subsection 760.11(7), in which

the Commission determines there is ÐNo CauseÑ to believe a

violation of the Florida Civil Rights Act of 1992 (the Act)

occurred, and Subsection 760.11(6), in which the Commission

determines, a s it did in this proceeding, that there is ÐCauseÑ

to believe a violation of the Act occurred.

24. The statutory relief afforded in Subsection 760.11(6)

is elective pursuant to Subsection 760.11(4)(b). Unlike the

elective relief provided in Subsection 7 60.11(6), the relief

afforded in Subsection 760.11(7) is mandatory for a petitioner

who wishes to challenge a determination of ÐNo Cause.Ñ The

distinction between elective and mandatory relief provided in

the two statutory subsections has import ant due pr ocess

implications.

25. If the Commission were to have issued a ÐNo CauseÑ

determination in this proceeding, Petitioner would be correct in

his assertion that a determination of liability would have legal

significance. After the issuance of a ÐNo CauseÑ determination,

Subsection 706.11(7) would have statutorily precluded the

election of remedies provided in Subsection 760.11(4)(b).

26. After a ÐNo CauseÑ determination from the Commission,

Petitioner would be statutorily required to prosecute his claim

of discrimination in an administrative proceeding at DOAH. At

DOAH, Petitioner would be precluded from obtaining a final

administrative order awarding him non - quantifiable damages and

equitable relief, including injunctive relief. 7

27. The Legislature a voids any prejudice to a petitioner

traveling under a ÐNo CauseÑ determination by adding the last

sentence in Subsection 706.11(7). That sentence underscores the

legal significance of a determination of liability in a

proceeding precipitated by a ÐNo Caus eÑ determination and

conducted pursuant to Subsection 760.11(7). The last sentence

provides:

In the event the final order issued by the

commission determines that a violation of

the Florida Civil Rights Act of 1992 has

occurred, the aggrieved person may b ring,

within 1 year of the date of the final

order, a civil action under subsection (5)

as if there has been a reasonable cause

determination or accept the affirmative

action offered by the commission, but not

both.

§ 760.11(7).

28. The last sentence in Subsection 760.11(7) imbues a

determination of liability in a DOAH proceeding precipitated by

a ÐNo CauseÑ determination with legal significance. The

petitioner in such a proceeding is statutorily empowered to take

his or her determination of liability i nto a court of competent

jurisdiction, pursuant to Subsection 760.11(5), and obtain any

of the relief sought by Petitioner in this administrative

proceeding.

29. The Legislature omitted the last sentence in

Subsection 760.11(7), or substantially similar l anguage, from

Subsection 760.11(6). Language such as that found in the last

sentence in Subsection 760.11(7) is not necessary in Subsection

760.11(6) , because Subsection 760.11(6) is electi ve rather than

mandatory.

30. Subsection 760.11(10) authorizes a judgment for the

amount of damages and costs assessed pursuant to a final order

entered by the Commission pursuant to Subsection 760.11(6).

Such a judgment in this proceeding, however, would be zero ,

because an administrative agency, including DOAH and th e

Commission, has no authority to enter an order awarding the non -

quantifiable damages requested in the Petition for Relief.

31. If Petitioner were to prevail on the merits in this

proceeding, this proceeding would end with a determination of

liability wi th no adequate remedy at law. That result would

be the functional equivalent of a declaratory judgment.

Section 89.011 vests circuit courts with exclusive jurisdiction

over declaratory actions. Phillips , 388 So. 2d at 49.

32. Declaratory relief is a classic equitable remedy.

Phillips , 388 So. 2d at 49. Id . Subsection 26.012(2)(c) vests

exclusive jurisdiction in the circuit courts over all matters

involving equitable relief. See , e.g. , Phillips , 388 So. 2d

at 49.

33. S ubsection 760.11(6), in relevant part, authorizes an

administrative agency to issue a final order Ðprohibiting the

practiceÑ and Ðproviding affirmative relief.Ñ The quoted

statutory terms must be construed in pari materia with the

LegislatureÓs enactment in Subsection 26.012(2)(c) , which vests

exclusive jurisdiction in the circuit courts over all matters

involving equitable relief, including injunctions. See , e.g. ,

Phillips , 388 So. 2d at 49. If the quoted terms in Subsection

760.11(6) were construed to convey equitable powers to

administrative agencies , that interpretation would nullify

the exclusive jurisdiction reserved to circuit courts in

Subsection 26.012(2)(c). It should never be presumed that the

Legislature intends an enactment to be a nullity. Butler v.

State , 838 So. 2d 554, 555 (Fla. 2003); Sharer v. Hotel

Corporation of America , 144 So. 2d 813 (Fla. 1962).

34. If the quoted terms in Subsecti on 760.11(6) were

construed to imbue administrative agencies with equitable power ,

that interpretatio n would amend Subsection 26.012(2)(c)

by implication. Amendment of a statute by implication is

not favored, especially where the Legislature does not

expressly designate the adopted statute, in this case

Subsection 760.11(6), as an amendment to the adoptive statute,

Subsection 26.012(2)(c). State ex rel. Quigley v. Quigley , 463

So. 2d 224, 226 (Fla. 1985); State v. J.R.M. , 388 So. 2d 1227,

1229 (Fla. 1980). 8

35. Under Florida law, any reasonable doubt as to the

lawful existence of a particular administrative power should be

resolved in favor of arresting the further exercise of that

power. Florida Elections Commission v. Davis , Case No. 1D09 -

3716 (Fla. 1st DCA Sept ember 30, 2010); Radio Telephone

Communi cations, Inc. v. Southeastern Telephone Company , 170 So.

2d 577, 582 (Fla. 1964); Edgerton v. International Company , 89

So. 2d 488 (Fla. 1956); State v. Atlantic Coast Line Railroad

Company , 47 So. 969 (Fla. 1908); Fraternal Order of Police,

Miami Lodge v. City of Miami , 492 So. 2d 1122, 1124 (Fla. 3d DCA

1986). Therefore, the ALJ follows the legislative mandate in

Subsection 26.012(2)(c) and Section 89.011 and arrests the

exercise of authority pursuant to any cont rary implication in

Chapter 760.

36 . Assuming arguendo that administrative agencies such as

DOAH and the Commission were to possess statutory authority to

grant declaratory relief, Petitioner admits that he is currently

too ill to travel to Disney to attend depositions or to attend

the fin al hearing. PetitionerÓs Motion for Protective Order ,

filed May 24, 2010 (alleging inability to travel to Disney);

Affidavit of Dr. McNamara , Exhibit F, paragraphs 1 and 3.

However, Petitioner asserts in other memoranda that , at some

undetermined time in the future , he may be able to travel to

Disney. Petitioner claims that this potential for future injury

is sufficient to give Petitioner standing to seek the injunctive

relief claim ed in the Petition for Relief.

37 . The ALJ finds the assertion of a pote ntial future

injury too tenuous, conjectural, and hypothetical to satisfy the

requirements of administrative standing. Lujan v. Defenders of

Wildlife , 504 U.S. 555, 561 (1992). Accepting the facts alleged

by Petitioner as true, the facts do not show a su fficient

likelihood that Petitioner will be affected by the alleged

unlawful conduct in the future. Johnson v. Board of Regents of

the University of Georgia , 263 F.3d 1234, 1265 (11th Cir. 2001).

In an administrative proceeding, the requirement for stand ing is

jurisdictional. Abbott Laboratories v. Mylan Pharmaceuticals,

Inc. , 15 So. 3d 642, 651 (Fla. 1st DCA 2009); Grand Dunes, Ltd.

v . Walton County , 714 So. 2d 473, 474 - 475 (Fla. 1st DCA 1998).

38 . If the ruling in the preceding paragraph were

determin ed to be in error, the error is without prejudice to

Petitioner. If Petitioner travels to Disney on that uncertain

future date , and Disney were to discriminate against Petitioner,

Petitioner will be extricated from the administrative limits of

this procee ding and will be free to file a civil action,

purs uant to either Subsection 760.11(4)(a) or Section 760.11(7) ,

seeking the non - quantifiable damages and equitable relief for

that future unlawful act, which Petitioner mistakenly believed

he could obtain in this proceeding for an allegedly past

unlawful act. 9

39 . Petitioner had an adequate procedure to seek the

relief at issue in this proceeding by electing a civil action in

a court of competent jurisdiction pursuant to Subsection

760.11(4)(a). Petitioner d id not elect that procedure.

Petitioner elected an administrative procedure that has no

statutory or constitutional authority to grant the relief

requested in the Petition for Relief. The election by

Petitioner of requesting an administrative hearing und er

Subsection 760.11(4)(b) is the exclusive procedure available to

Petitioner pursuant to the Act. § 760.11(4)(flush paragraph).

40 . Attorney 's fees comprise the finale to PetitionerÓs

argument that DOAH should retain jurisdiction. Petitioner

relies on the authority in Subsection 760.11(6) for the

Commission to award attorney 's fees.

41 . In the absence of any adequate remedy at law, going

forward with this proceeding for the sole purpose of awarding

attorney 's fees amounts to incurring fees for the purp ose of

awarding fees. That prospect is rejected without further

comment. 10 RespondentÓs pending Motion for Reconsideration of

its request for attorney 's fees is also DENIED. 11

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law , it is

RECOMMENDED that the Commission enter a final order

dismissing the Petition for Relief for the reasons stated in

this Recommended Order of Dismissal.

DONE AND ENTERED this 7 th day of October , 2010 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 Administra tive Hearings

this 7 th day of October , 2010 .

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2009) , unless otherwise stated.

2/ Factual disputes required to resolve a motion to dismiss, if

any, must be resolved against the moving party in the absence of

an evidentiary hearing.

3/ See Order Denying Attorney Fees (May 21, 2010).

4/ See Walt Disney World Co.Ós Brief on Applicable Legal

Standards (July 7, 2010).

5/ The term ÐinjunctionÑ is used to describe the requested

relief because the term ÐprohibitionÑ technically refers to the

process by which a superior court prevents an inferior court

from exceeding its jurisdic tion. A writ of prohibition is the

counterpart of a writ of mandamus. BlackÓs Law Dictionary (5th

Ed. 1979) (hereinafter ÐBlackÓsÑ) at 1091.

6/ An injunction is a prohibitive, equitable remedy issued by a

court, directed to a party defendant in the act ion, forbidding

the latter to do some act, or restraining the party defendant in

the continuance of the act being unjust and inequitable to the

plaintiff and not such as can be adequately addressed by an

action at law. BlackÓs at 705.

7/ See n. discussi on in para graph s 17 and 18.

8/ The issue of amendment by implication could be further

muddied if it were determined that the quoted statutory terms

infiltrated state statutes when state statutes were modeled

after federal discrimination law . If so, the conflict between

the quoted terms in state statutes, which arguably trace their

origin to federal law, and Subsection 26.012(2)(c) may present a

ÐfederalismÑ issue, i.e. , a vertical division of power between

federal and state government , in which federal l aw amends by

implication, albeit inadvertently, the state pr ovision for

exclusive equity jurisdiction in circuit courts which the

Legislature mandates in Subsection 26.012(2)(c) .

9/ PetitionerÓs Motion for Protective Order is DENIED as moot.

PetitionerÓs Motion i n Limine is DENIED as moot.

10/ Res ipsa loquitur (literally: the thing speaks for itself

without further explanation).

11/ Petitioner devoted much time and effort to t he argument that

the law applicable to this proceeding is the (Florida) Act and

not the federal Americans with Disabilities Act (ADA). The ALJ

is somewhat perplexed by PetitionerÓs argument in light of the

holding in Lenard v. A.L.P.H.A. ÐA BeginningÑ Inc . , 945 So. 2d

618 (2d DCA 2006), the citation to which the undersigned

provided to counsel for both parties during a pre - hearing

conference before the briefing schedule began in this

proceeding. As counsel for the parties know, the undersigned

wrote the R ecommended Order in Lenard , and the appellate court

upheld the decision. In relevant part, the appellate court held

that, ÐFlorida courts construe the FCRA in conformity with the

federal Americans with Disabilities Act (ÐADAÑ). " McCaw

Cellular CommcÓns o f Fla., Inc. v. Kwiatek , 763 So. 2d 1063,

1065 (Fla. 4th DCA 1999); Greene v. Seminole Elec. Coop., Inc. ,

701 So. 2d 646, 647 (Fla. 5th DCA 1997)(citations not omitted).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relatio ns

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Kerry Alan Scanlon, Esquire

Jeremy M. White, Esquire

Kaye Scholer, LLP

The McPherson Building

901 Fifteenth Street , Northwest

Washington, D . C . 20005

Aaron C. Bates, Esquire

Bates Mokwa, PLLC

126 East Jefferson Street

Orlando, Florida 32801

Manuel Kushner, Esquire

Kaye Scholer LLP

777 South Flagler Drive, Suite 900 West

West Palm Beach, Florida 33401

David Ferleger

Archways Professional Building

413 Johnson Street, Suite 203

Jenkintown , Pennsylvania 19046

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.