02-001624 Troy Perry vs. Speedway Superamerica, Llc, D/B/A Starvin` Marvin Status: Closed Recommended Order on Monday, February 3, 2003.

Summary: Petitioner claimed racial discrimination based on Respondent`s failure to provide service in a public accommodation. Failed to present a prima facie case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TROY PERRY, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1624

)

SPEEDWAY SUPERAMERICA, LLC, )

d/b/a STARVIN' MARVIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on December 18, 2002, in Viera, Florida.

APPEARANCES

For Petitioner: Tro y Perry, pro se

2010 Paradise Court

Palm Bay, Florida 32905

For Respondent: Susan P. Norton, Esquire

Allen, Norton & Blue, P.A

121 Majorca Avenue, Suite 300

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether Petitioner, Troy Perry, was denied service at

Respondent's, Speedway SuperAmerica, LLC, d/b/a Starvin' Marvin,

service station because of his race.

PRELIMINARY STATEMENT

On Ma y 19, 2001, Petitioner filed a Charge Of

Discrimination - Public Accommodation with the Florida

Commission on Human Relations. On March 11, 2002, the Florida

Commission on Human Relations filed a Notice Of Determination:

No Cause, which advised Petitioner that he had 35 days from the

date of the Notice to request an administrative hearing. On

April 17, 2002, Petitioner's Petition For Relief was received by

the Florida Commission on Human Relations.

On April 23, 2002, the Division of Administrative Hearing s

received a Transmittal of Petition from the Florida Commission

on Human Relations forwarding Petitioner's Petition For Relief

requesting the assignment of an Administrative Law Judge to

conduct all necessary hearings.

On April 23, 2002, an Initial Order was sent to both

parties. On May 9, 2002, Respondent filed a Motion to Dismiss

alleging that Petitioner's Petition For Relief was not timely

filed and, therefore, barred. On May 23, 2002, the case was

scheduled for final hearing in Viera, Brevard County, Florida,

on June 27 and 28, 2002. On June 7, 2002, Petitioner sought a

continuance of the final hearing scheduled for June 27 and 28,

2002. The final hearing was rescheduled for July 31, 2002.

On June 18, 2002, a Recommended Order Of Dismissal was

enter ed recommending that the Florida Commission on Human

Relations dismiss Petitioner's Petition For Relief as it was not

timely filed. On August 6, 2002, the Florida Commission on

Human Relations forwarded a letter to the Division of

Administrative Hearings instructing the Administrative Law Judge

to "withdraw your Recommended Order of Dismissal and set a final

hearing date in this case."

On October 11, 2002, the Division of Administrative

Hearings received the Florida Commission on Human Relations'

Order Re manding Petition For Relief From An Unlawful Employment

Practice, remanding the case for further proceedings and

concluding that Petitioner's Petition For Relief had been timely

filed. On October 17, 2002, the case was rescheduled for final

hearing on Dec ember 18, 2002.

The final hearing was conducted on December 18, 2002, as

rescheduled. Petitioner presented three witnesses: himself,

Dawnetta Davis, and Rose Locasio. Petitioner offered one

exhibit which was received into evidence and marked Petitioner' s

Exhibit 1. Respondent did not present any evidence; instead, it

moved for a directed verdict asserting that Petitioner had

failed to present a prima facie case.

The Transcript of the hearing was filed with the Division

of Administrative Hearings on Janu ary 13, 2003. Respondent

filed a Proposed Recommended Order on January 21, 2003, which

was thoughtfully considered.

FINDINGS OF FACT

1. Petitioner is a 39 - year - old, African - American male.

2. Respondent operates and maintains an automobile service

statio n in Palm Bay, Brevard County, Florida.

3. On the evening of May 24, 2000, Petitioner attempted to

obtain gasoline for his automobile at Respondent's service

station. For the preceding two years Petitioner had frequently

obtained gasoline at Respondent's service station without

incident or any suggestion of racial discrimination.

4. The gasoline pumps at Respondent's service station

utilize computers in their operation. On this particular

evening, the computers were not functioning properly and, as a

re sult, Rose Locasio, a cashier at Respondent's service station,

had announced over a speaker system audible at the gasoline

pumps that all customers would have to pre - pay for gasoline

purchases. There is no evidence that Petitioner heard this

announcement.

5. Ms. Locasio had been an employee of Respondent's

service station from January 1998 until July 2000. Her

employment is coincident with Petitioner's frequent

patronization of the service station.

6. Petitioner removed the gasoline nozzle from the pump

and inserted it into his gas tank. He was not able to pump any

gas.

7. After waiting a few minutes for the gasoline pump to be

activated, Petitioner went into the service station and

presented $15 to Rose Locasio. She activated the gasoline pump.

At t his point, Petitioner questioned Ms. Locasio regarding the

requirement that he pre - pay suggesting that he was required to

pre - pay because he was black.

8. Ms. Locasio commented that she discriminated against

all minorities, blacks, Hispanics, Indians, and whites.

9. Feeling insulted by Ms. Locasio's comment, Petitioner

decided he didn't want to purchase gasoline from Respondent's

service station and requested his $15 back.

10. Ms. Locasio explained that she could not refund the

$15 once the computer had been activated without the station

manager's permission. The station manager was not on duty.

11. Petitioner called the police, as did another of

Respondent's employees. When the police arrived they effected

the return of Petitioner's $15.

CONCLUSIONS O F LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.57 and 760.11, Florida Statutes.

13. Petitioner claims racial discrimination in violation

of Sections 760.01 thro ugh 760.11 and 509.092, Florida Statutes,

known as the "Florida Civil Rights Act of 1992."

14. Section 509.092, Florida Statutes, provides as

follows:

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 v iolation of this section or

a violation of a rule adopted under this

section has a right of action pursuant to s.

760.11.

15. Section 760.07, Florida Statutes, reads as follows:

Any violation of any Florida statute

making unlawful discrimination becaus e of

race, color, religion, gender, national

origin, age, handicap, or marital status in

the areas of education, employment, housing,

or public accommodations gives rise to a

cause of action for all relief and damages

. . ."

16. The provisions of the Flo rida Civil Rights Act are to

be read in pari materia with parallel federal civil rights

legislation, and, accordingly, reliance on federal civil rights

case law is appropriate in interpreting Florida civil rights

law. Bass v. Board of County Commissioners , Orange County,

Florida , 256 F.3d 1095, 1109 (11th Cir. 2001); Stevens v. Steak

n Shake, Inc. , 35 F.Supp. 2d 882, 886 (M.D. Fla. 1998); Brand v.

Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

17. Cases involving allegations of violations of Section

509.092, Florida Statutes, like those involving violations of

federal civil rights legislation, are subject to a shifting

burden of proof. Petitioner has the burden of proof in this

case to show that he was discriminated against on the basis of

race. The ultimate burden of persuasion (by a preponderance of

the evidence) always rests on the party claiming violation of

the statute. McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973); Department of Community Affairs v. Bryant , 586 So. 2d

1205, 1209 (Fla. 1st DCA 1991).

18. The typical discrimination case usually involves two

shifts of the burden of going forward with the evidence. The

initial burden falls on the party alleging the discriminatory

conduct. In order for the case to proceed, Peti tioner must

establish a prima facie case of the alleged discrimination. In

the instant case, accomplishing this task requires Petitioner to

present evidence that:

(1) He is a member of a protected class;

(2) He attempted to contract for services

an d to afford himself the full benefits and

enjoyment of a public accommodation;

(3) He was denied the right to contract

for those services and, therefore, was

denied the full benefits and enjoyment of a

public accommodation; and

(4) Such benefits an d services were

available to similarly situated persons

outside the protected class who received

full benefits or enjoyment, or were treated

better.

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973); United

States v. Lansdowne Swim Club , 894 F.2d 83, 88 (3rd Cir. 1990);

Laroche v. Denny's, Inc. , 62 F.Supp. 2d 1375, 1382 (S.D. Fla.

1999).

19. In the instant case, Petitioner failed to establish a

prima facie case. While Petitioner demonstrated that he is a

member of a protected class, African - American, he failed in his

attempt to demonstrate the remaining three elements of a prima

facie case.

20. He attempted to purchase $15 worth of gasoline and was

given the opportunity to make the purchase by pre - paying for the

purchase (which he did). He was not d enied service; he could

have pumped the gasoline; however, after being insulted by

Respondent's cashier, he elected to demand the return of his

money. Morris v. Office Max, Inc. , 89 F.3d 411, 414 (7th Cir.

1996); White v. Denny's, Inc. , 918 F.Supp 1418, 1 424 - 1425

(D. Colo. 1996).

21. Petitioner, and apparently every other customer of

Respondent's service station, were being asked to pre - pay. The

requirement to pre - pay was applied to all customers uniformly

and non - discriminatorily. As a result, the evi dence adduced

demonstrates that Petitioner was not discriminated against on a

racial basis. Stevens v. Steak n Shake, Inc. , 35 F.Supp. 2d

882, 887 (M.D. Fla. 1998).

RECOMMENDATION

Based of the Foregoing Findings of Fact and Conclusions of

Law, it is

RECO MMENDED that Petitioner has failed to present a prima

facie case of discrimination based on race; therefore, his

Petition For Relief should be dismissed.

DONE AND ENTERED this 3rd day of February, 2003, in

Tallahassee, Leon County, Florida.

_______________ ____________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Fil ed with the Clerk of the

Division of Administrative Hearings

this 3rd day of February, 2003.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Susan P. No rton, Esquire

Allen, Norton & Blue, P.A

121 Majorca Avenue, Suite 300

Coral Gables, Florida 33134

Troy Perry

2010 Paradise Court

Palm Bay, Florida 32905

Cecil Howard, 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 agenc y that

will issue the Final Order in this case.