01-003882 Vanessa Brown vs. Capital Circle Hotel Company, D/B/A Sleep Inn Status: Closed Recommended Order on Thursday, October 17, 2002.

Summary: Petitioner proved by preponderance of evidence that night clerk refused to rent her a room at Respondent`s motel based on her race; employer responsible; cease and desist and other remedies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VANESSA BROWN, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3882

)

CAPITAL CIRCLE HOTEL COMPANY, )

d/b/a SLEEP INN, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride,

Administrative Law Judge, Division of Administrative Hearings,

on September 4, 2002, in Orlando, Florida. The following

appearances were entered:

APPEARANCES

For Petitioner: Tricia A. Madden, Esquire

Tricia A. Madden, P.A.

500 East Altamonte Drive, Suite 200

Altamonte Springs, Florida 32701

For Respondent: Stephen F. Baker, Esquire

Stephen F. Baker, P.A.

800 First Street South

Winter Haven, Florida 33880

STATEMENT OF THE ISSUE

Whether Petitioner, Vanessa Brown, a member of a protected

class, was denied rental of a room at the hotel called the Sleep

Inn owned by Respondent, Capital Circle Hotel Company, on or

about May 27, 2000, on the basis of her race (African - American)

in violation of the Florida Civil Rights Act of 1992.

PRELIMINARY STATEMENT

Petitioner filed a Public Accommodations Charge of

Discrimination based on race against Respondent with the Florida

Commission on Human Relations (FCHR) on May 24, 2001, under the

Florida Civil Rights Act of 1992. Subsequently on

August 22, 2001, the FCHR issued a Determination: Cause,

finding that there was reasonable cause to bel ieve that an

unlawful public accommodations practice had occurred. On

September 25, 2001, Petitioner timely filed a Petition for

Relief with the FCHR. This matter was referred by the FCHR to

the Division of Administrative Hearings for formal hearing on

O ctober 31, 2001. Following continuances jointly stipulated to

by Petitioner and Respondent in order to complete discovery, a

formal hearing was held on September 4, 2002.

At the hearing Petitioner testified on her own behalf, and

presented the testimony o f Frederich Mobley by video deposition

and transcript taken August 28, 2002, marked and entered into

evidence as Petitioner's Exhibit 1, and the testimony of

Mitchell Jamerson by video deposition and transcript taken

August 28, 2002, marked and entered in to evidence as

Petitioner's Exhibit 2. Respondent presented the testimony of

Robert Bland and the testimony of Cheryl Dodd by video

deposition and transcript taken August 5, 2002, and entered into

evidence as Respondent's Exhibit 1 and the video depositio n and

transcript testimony of John C. Walters, taken August 5, 2002,

and marked as Respondent Exhibit 2. Respondent presented four

other exhibits, a composite exhibit marked as Respondent's

Exhibit 3, a one - page letter dated August 27, 2001, marked as

Res pondent's Exhibit 4, a copy of the Employee Handbook marked

as Respondent's Exhibit 5, and a copy of the Sleep Inn Franchise

Agreement marked as Respondent's Exhibit 6, which were admitted

into evidence.

The hearing was recorded, but the transcript was not

ordered. The parties, by request of Petitioner and agreed to by

Respondent, were allowed 21 days to file proposed findings of

fact and conclusions of law. Each party filed their Proposed

Recommended Order on September 30, 2002. Each party's proposal

ha s been carefully considered in rendering this Recommended

Order.

FINDINGS OF FACT

1. Petitioner is a member of a protected class (African -

American).

2. Respondent was on May 27, 2000, and is the owner of the

Sleep Inn located in Temple Terrace, Florida, which is a public

lodging establishment.

3. In the early morning hours of May 27, 2000, Petitioner

was denied accommodations at the Sleep Inn.

4. Cheryl Dodd was working as night auditor and desk clerk

for Respondent on May 26, 2000, and May 27, 2000. A t

approximately 4:00 a.m., Petitioner entered the Sleep Inn with

Frederich Mobley (also African - American) and asked to rent a

room. Before Petitioner could complete her request, Dodd told

Petitioner she was sold out. Dodd made no effort to check the

Slee p Inn computer system or reservation card system to

determine if a room was available before immediately

interrupting Respondent and telling her that no room was

available and no room would be available until the next day in

the afternoon.

5. Petitioner a nd Mobley left the lobby of the Sleep Inn

and returned to the parking lot. In the parking lot, Mitchell

Jamerson was wiping down his car, because he could not sleep.

Jamerson (an African - American) struck up a conversation with

Mobley and Respondent. He asked the two of them if they had

been told there were no rooms available. Jamerson told them

that he was with a softball team and four of his team members

had called to tell him they had had car trouble, would not be

able to get to the motel that night, and that their rooms would

not be needed.

6. About ten minutes after Petitioner left the hotel lobby

with Mobley, a Caucasian male entered the hotel lobby and came

back out. Jamerson spoke to the gentleman, and he said he had

just rented a room for him a nd his wife for the night, without a

reservation. Jamerson accompanied Petitioner and Mobley back

into the lobby. Petitioner asked Dodd why she could not have a

room when a room had just been rented to the Caucasian male.

Dodd said she had given the Cau casian male a room with a cot.

Petitioner asked why she was not offered that room. Dodd told

Petitioner that she did not think they would want a room with a

cot and that there were no other rooms available. Dodd told

Petitioner that she (Petitioner) cou ld speak to the manager the

next day, and gave her the card of John C. Walters. The time of

the end of Petitioner's second visit to the lobby was 4:10 a.m.

on May 27, 2000.

7. At approximately 12:00 a.m., Jamerson had gone to the

front desk and told the desk clerk, Dodd, that three rooms

reserved by his team would not be needed that night because his

team members had had car trouble in Wildwood.

8. Jamerson and his team (other than the four mentioned

above), including both African - Americans and Caucasian s, had

checked in at approximately 7:30 p.m. on the evening of May 26,

2000. The rooms they were given were missing towels. During

the registration and when asking for towels, they believed they

were treated rudely. Jamerson stated that the clerk on dut y at

12:00 a.m. midnight and at 4:00 a.m. on May 27, 2000, was the

same person at the desk when he checked in with his team at

7:30 p.m. on May 26, 2000.

9. Dodd testified that she came on duty at 11:00 p.m. that

night for an 11:00 p.m. to 7:00 a.m. shif t. However, John C.

Walters, the manager of the Sleep Inn, stated that Dodd often

helped out during shifts other than the 11:00 p.m. to 7:00 a.m.

shift. Neither Dodd nor Walters could identify who was on shift

at the hotel for the 3:00 p.m. to 11:00 p.m. shift that night.

10. Dodd, contrary to the testimony of Jamerson,

Petitioner, and Mobley, said Petitioner came into the hotel both

times with two men. Dodd also said that she had checked in two

sets of parents and two African - American females into two rooms

at approximately 11:00 p.m. or 12:00 a.m. She stated that the

individuals had reservations and were parents of members of the

baseball team. Jamerson stated that his team was the only team

in the hotel, that he knew the teams in the competition tha t

were to attend and that all the teams were comprised of adult

women. No parents of his team stayed at the hotel on May 26,

2000, or May 27, 2000. Dodd's testimony on this incident is not

credible.

11. Dodd testified that she was running the night au dit at

the time Petitioner and Mobley entered the hotel, and could not

check whether a room was available. Dodd admitted that she did

not make that information known to Petitioner or Mobley. Dodd

testified that she had started running the audit sometime

between 1:00 a.m. and 2:00 a.m. that night, as was her practice,

and that the audit took one to one and a half or two hours to

run. However, Walters testified that he was not there the night

of May 26, 2000, or May 27, 2000, but the audit took about

45 m inutes.

12. Dodd testified that she had had a gentleman call in to

cancel a room because he had had car trouble. She testified

that the gentleman had called approximately 30 to 45 minutes

after Respondent and Mobley left the lobby. She said she told

the gentleman that called that she would try to rent out the

room, and if she could, she would not bill him even though

according to policy she should. She then testified that the

Caucasian male to whom she rented the room entered the lobby

approximately 15 minutes later. Dodd testified that when she

had a reservation and the person called in to cancel after

6:00 p.m. she would bill that client, but would rent out the

room if possible. She said she could check people in and out

while the audit was running. This testimony is not credible.

13. Robert Bland testified that the policy of Respondent

was to bill the customer who had a reservation if they canceled

after 6:00 p.m. and not to rent the room out. The policy was

based on the fact that the customer wa s being billed for the

room and had a right to have that room available for him/her

whether or not anyone else appeared to ask for the room. Bland

presented a composite exhibit of the driver's license

photographs of 14 African - Americans who rented rooms b etween

May 10, 2000, and May 28, 2000. Bland could not confirm whether

or not that was all the African - Americans who had rented rooms

in the month of May or just all between the period of May 10,

2000, and May 28, 2000. Bland stated that all computer re cords

of the registrations and other records other than the driver's

license photos he presented for the period of May 2000 had been

destroyed on a hard disk that had been damaged. Of those

driver's licenses produced to demonstrate that the hotel did

prov ide rooms to African - Americans, seven of those driver's

licenses belonged to members of Jamerson's baseball team who had

signed in on May 26, 2000, at 7:30 p.m. after Dodd was on duty.

Jamerson's team had made reservations through one party by

telephone a nd no identification had been made at the time of the

reservations of their ethnic background.

14. Bland could not state who had accepted the

reservations of the African - Americans identified by driver's

license photographs who were not members of Jamerson 's team.

Bland could not state that he knew that Dodd had ever rented a

room to any African - American other than Jamerson's team members,

who had arrived with prior reservations.

15. Bland stated that Dodd had been given a new employee

manual which was de veloped after Bland took over as Director of

Operations. This was sometime after Dodd had actually started

work at the Sleep Inn. No training was given to Dodd or any

other employee on that manual. The manual states that no one

should discriminate on th e basis of any categories of

discrimination. No other information that was provided

indicated that Bland could verify that Dodd had read the manual.

Dodd stated that she was provided an Employee Manual which

warned against discriminating against minoriti es, and she did

know from working in the hospitality industry that she should

not discriminate.

16. Dodd further testified that no one at the Sleep Inn

asked her, suggested to her, or implied to her that she should

give preferential treatment to Caucasian s over African -

Americans. Dodd specifically testified that at the time

Petitioner came into the Sleep Inn, she was running the night

audit of the motel on the computer and that to her knowledge no

rooms were available at that time. Dodd further testified that

early after Petitioner left the lobby, a room became available,

that she was not aware Petitioner was waiting in the parking

lot, and that the next prospective guests to enter the motel

were a Caucasian couple.

17. Walters testified that at the Slee p Inn, while he was

there he rented to anyone who could rent a room. His purpose

was to place "heads in beds."

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding, pur suant to Sections 120.569, 120.57(1), and

760.11(4), Florida Statutes.

19. Section 509.092, Florida Statutes, provides:

Public Lodging establishments and public

food service establishments are private

enterprises, and the operator has the right

to refuse accommodations or service to any

person who is objectionable or undesirable

to the operator, but such refusal may not be

based upon race, creed, color, sex, physical

disability, or national origin. A person

aggrieved by a violation of this section or

a vi olation of a rule adopted under this

section has a right of action pursuant to

Section 760.11.

20. The court in LaRoche v. Denny's, Inc. , 62 F.Supp. 2d

1375, 1382 - 1383 (S.D. Fla. 1999), a case dealing with racial

discrimination, set forth the analysis wh ich should be used in

public accommodations cases in Florida:

Under the McDonnell Douglas framework, as

further elucidated in Texas Dept. of

Community Affairs v. Burdine , 450 U.S. 248,

252 - 53, 101 S.Ct. 1089, 67 L.Ed.2d 207

(1981), and St. Mary's Honor C enter v.

Hicks , 509 U.S. 502, 506, 113 S.Ct. 2742,

125 L.Ed.2d 407 (1993), the Plaintiffs must

prove by a preponderance of the evidence a

prima facie case of discrimination.

Specifically, the Plaintiffs must prove

that: (1) they are members of a protecte d

class; (2) they attempted to contract for

services and to afford themselves the full

benefits and enjoyment of a public

accommodation; (3) they were denied the

right to contract for those services and,

thus, were denied the full benefits or

enjoyment of a public accommodation; and (4)

such services were available to similarly

situated persons outside the protected class

who received full benefits or enjoyment or

were treated better. United States v.

Lansdowne Swim Club , 894 F.2d 83, 88 (3rd

Cir. 1990).

Once the Plaintiffs meet this burden, they

establish a presumption of intentional

discrimination. Hicks , 509 U.S. at 506, 113

S.Ct. 2742. The effect of this presumption

shifts the burden to the Defendant to

produce evidence of a legitimate, non -

discrim inatory reason for the challenged

action. Id. at 506 - 507, 113 S.Ct. 2742;

McDonnell Douglas , 411 U.S. at 802,

93 S.Ct. 1817; Burdine , 450 U.S. at 254, 101

S.Ct. 1089. The Defendant's burden of

production is a light one. Batey v. Stone ,

24 F.3d 1330, 13 34 (11th Cir. 1994).

When a defendant meets its burden of

production, the presumption of

discrimination which the McDonnell Douglas

framework creates, "drops from the case" and

"the factual inquiry proceeds to a new level

of specificity." Burdine , 450 U.S. at 255,

n. 10, 101 S.Ct. 1089. The burden then

shifts back to the Plaintiffs to demonstrate

that the Defendant's actions were not for

the proffered reason, but were, in fact,

motivated by race. Hicks , 509 U.S. at 507 -

08, 113 S.Ct. 2742; Burdine , 450 U.S. at

253, 101 S.Ct. 1089. Plaintiffs may prove

this fact either by means of affirmative

evidence that race played an impermissible

role in Mr. Ibarra's action, or by showing

that the proffered non - discriminatory reason

does not merit credence. Id. at 256, 101

S.Ct. 1089. The ultimate burden is on the

Plaintiffs to prove that they were the

victims of intentional discrimination.

21. Petitioner may make a prima facie showing of housing

discrimination sufficient to meet the first part of the three -

part McDonnell Douglas burden of proof test by establishing that

she applied to rent an available unit which she was qualified to

rent, her application was rejected and, at the time of such

rejection, she was a member of a protected class. Soules v.

United St ates Department of Housing and Urban Development ,

967 F.2d 817, 822 (2d Cir. 1992).

22. In the present case, Petitioner was a member of a

protected class, African - American. She entered the lobby of the

Sleep Inn to rent a room. Dodd immediately stated a room was

not available before Petitioner could complete her request for a

room. Approximately 15 minutes later, a room was rented to a

Caucasian male. Petitioner was denied the full benefits or

enjoyment of a public accommodation when she was denied th e

right to contract for a room. That service was made available

to a similarly situated person, the Caucasian male, who is

outside the protected class and who did receive the full

benefits and enjoyment of the facilities. Petitioner has

established a pri ma facie case of intentional discrimination

based on race.

23. Respondent now has the burden of producing evidence of

a legitimate, non - discriminatory reason for Dodd's denial of the

room to Petitioner. Respondent has attempted to provide

evidence of a n on - discriminatory reason for the challenged

action, by claiming that Petitioner was denied the room because

the audit was running and/or no room was available.

24. Respondent is responsible for the actions of its night

auditor, Dodd, who also acted as des k clerk. Dodd has testified

that she had handled room reservations contrary to company

policy, which is in the Employee Manual and was testified to by

Bland. Bland and Walters testified they supervised all the work

at the facility. Therefore, they shoul d have been or were aware

of Dodd's failure to follow policy in at least one significant

area -- double billing for the same room. Since they took no

action in this area to stop Dodd's double billing, there is

evidence that they did not supervise her suffic iently to prevent

her from violating other company policies, in this case

discrimination. Further, the Employee Manual was developed

after Dodd was hired and there was not evidence presented that

she received any training on Respondent's non - discriminatio n

policy, or how to implement it. Ferrill v. The Parker Group,

Inc. , 168 F.3d 468, 473 (11th Cir. 1999).

25. Respondent's explanation is not sufficiently credible

when all the evidence is considered. Dodd claims that she

denied the room to Petitioner be cause she was running a night

audit and could not verify whether or not a room was available.

Dodd stated that she would have started the night audit, as it

was her practice, between 1:00 a.m. and 2:00 a.m. and that the

audit could run from one to two hou rs. However, Walters

testified that the audit runs about 45 minutes. Bland indicated

that the audit took a short time period. At the longest time

frame given by Dodd to attempt to explain her reason for denying

rental of the room on the basis that the a udit was not

completed, the audit would have been finished more likely than

not before Petitioner entered the hotel with Mobley at

3:45 a.m., at the earliest. If the audit had still been

running, Dodd certainly should have known that, at that late

time, the audit was practically finished and could have asked

Petitioner to wait a moment while she checked the computer.

Dodd, by her own testimony and that of Petitioner and Mobley,

made absolutely no effort to check anything to see if a room was

available. She immediately denied a room to Petitioner.

26. In addition, at the time that Petitioner requested a

room at the hotel, Dodd had personal knowledge that three rooms

were vacant that had previously been reserved. Dodd further

knew that she could che ck at least to see if a room was

available. Further, Dodd stated that it was her policy to rent

rooms that had been canceled even if she had billed the original

customer with the reservation for the room.

27. Dodd's testimony that she did not know that t here were

any rooms available for rent is contradicted by her own

testimony, but even further by the testimony of other witnesses.

Jamerson testified that he had told Dodd at 12:00 midnight that

three of the rooms that had been reserved for his team would not

be used because four people had had car trouble. Walters'

testimony as to the length of time it takes to run the audit

would demonstrate that the audit would have been completed long

before the time that Petitioner entered the lobby at 3:45 a.m.

or 4 :00 a.m. and certainly at the time of 4:10 a.m. when

Petitioner had returned to the hotel lobby. Dodd's testimony

that the audit was still running at the time Petitioner entered

the lobby is not credible based on the time frames and the

testimony given by others.

28. Bland's testimony on hotel policy for reservations and

Dodd's own testimony contradict each other on reservation

policy. Dodd's implementation of it was contrary to hotel

policy and Bland's testimony. Dodd's testimony on her actions

is also contradicted by Dodd and other representatives of

Respondent that their job is to accommodate customers. This

would certainly require more than a hasty "no room" response at

4:00 a.m. As with the reservation policy, Dodd did not always

follow policy.

29 . The burden then shifts back to Petitioner to

demonstrate that Respondent's actions were not for the proffered

reason, but were in fact motivated by race. Petitioner may

prove this fact either by means of affirmative evidence that

race played an impermi ssible role in Dodd's actions or by

showing that the proffered non - discriminatory reason does not

merit credence. In this matter, the evidence given by Dodd of

the reason she denied a room to Petitioner does not merit

credence considering the testimony of all parties and the

evidence presented.

30. While a close question, in this case, there is

sufficient evidence to satisfy Petitioner's burden that

Respondent's employee's decision to deny a room to Petitioner

was racially motivated. LaRoche v. Denny's I nc. , supra at 1384.

31. Petitioner was a member of a protected class and was

denied the use and enjoyment of the facilities. Petitioner has

testified that the event has left her emotionally affected from

the date of the incident to present time, and that the acts by

Dodd on behalf of Respondent left her with continued

apprehension of discriminatory treatment, which she did not have

prior to May 27, 2000. Although Petitioner has not lost income

as a result of the actions of Respondent by its agent Dodd,

P etitioner had sought counseling on a few occasions but that the

counseling had not proved effective, and she ceased the

counseling. Based on Petitioner's testimony, she is entitled to

$500 for affirmative relief from the effects of the practice.

No testi mony was presented to refute Petitioner's testimony as

to the effect of the incident on her emotional and mental state.

LaRoche v. Denny's, Inc. , supra at 1385. Section 760.11(7),

Florida Statutes, authorizes the presiding Administrative Law

Judge to rec ommend affirmative relief from the effects of

unlawful discrimination by a public lodging establishment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered:

1. Finding that Respo ndent discriminated against

Petitioner based on her race (African - American);

2. Awarding Petitioner $500 in compensatory damages;

3. Issuing a cease and desist order prohibiting Respondent

from repeating this practice in the future; and

4. A reasonable attorney's fee as part of the costs.

DONE AND ENTERED this 17th day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of October, 2002.

COPIES FURNIS HED :

Stephen F. Baker, Esquire

Stephen F. Baker, P.A.

800 First Street South

Winter Haven, Florida 33880

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Tricia A. Madden, Esquire

Tricia A. Madden, P.A.

500 East Altamonte Drive, Suite 200

Altamonte Springs, Florida 32701

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT T O 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.