02-002502 Veronica M. King And Walter E. King vs. La Playa-De Varadero Restaurant Status: Closed Recommended Order on Wednesday, February 19, 2003.

Summary: Petitioners, who are African-Americans, failed to prove that Respondent, a restaurateur, had unlawfully discriminated against them.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERONICA M. KING AND WALTER E. )

KING, )

)

Petitioners, )

)

vs. ) Case No. 02 - 2502

)

LA PLAYA - DE VARADERO )

RESTAURANT, )

)

Respondent. )

)

RECOMMEN DED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

September 5, 2002, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Veronica M. King, pro se

Walter E. King, pro se

2595 Pea Ridge Road

Mill Spring, North Carolina 28756

For Respondent: Tomas A. Pila, Esquire

Pila & Associates, P.A.

2525 Southwest Third Avenue

Suite 304

Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, a

restaurateur, unlawfully discriminated against Petitioners, who

are African - Americans, by refusing to serve them based upon

race.

PRELIMINARY STATEMENT

In a Charge of Discrimi nation filed with the Florida

Commission on Human Relations (“FCHR”) on November 16, 2001,

Petitioners Veronica and Walter King alleged that they were

discriminated against at Respondent La Playa de Varadero, a

restaurant located in Miami Beach, Florida. Specifically,

Petitioners complained that, because they are African - Americans,

Respondent’s employees had rendered slow service to them when

they tried to eat dinner at the restaurant in July 1991. The

FCHR investigated Petitioners’ claim and, on May 14, 2002,

issued a letter stating that it had found “reasonable cause to

believe that an unlawful employment practice had occurred.” 1

Thereafter, Petitioners timely filed a Petition for Relief with

the FCHR in which they repeated their allegation that Respond ent

had denied them service based upon race.

On June 17, 2002, the FCHR transferred the matter to the

Division of Administrative Hearings for further proceedings, and

an administrative law judge (“ALJ”) was assigned to the case.

The ALJ scheduled a fina l hearing for September 5, 2002.

At the final hearing, both Petitioners testified. They

offered no other evidence. Respondent called three witnesses:

Rainer Armas, Ariel Diaz, and Lourdes Rodriguez. It offered no

additional evidence.

The final hearing transcript was filed on February 5, 2003.

Petitioner submitted a proposed recommended order; Respondent

did not.

FINDINGS OF FACT

1. On or about July 7, 2001, Petitioners Veronica King and

Walter King (the “Kings”), who were then on vacation in Miami

B each, Florida, decided to eat dinner at La Playa de Varadero

Restaurant (“La Playa”), a Cuban restaurant near their hotel. 2

2. They entered the restaurant some time between 3:00 and

5:00 p.m. Though the dining room was full of patrons, there

were a fe w empty tables. The Kings seated themselves.

3. The Kings reviewed the menus that were on the table and

conversed with one another. They waited for a server, but none

came promptly. After waiting about 10 or 15 minutes, Mrs. King

signaled a waitress, w ho came to their table and took their

drink and food orders. 3

4. The waitress brought the Kings their drinks without

delay. The food, however, did not appear, and the Kings grew

increasingly impatient and irritated. It seemed to the Kings,

who are Afri can - Americans, that other customers —— none of whom

was black —— were being served ahead of them. 4 After about a half

an hour or so, having yet to be brought food, the Kings decided

to leave without eating.

5. On the way out of the restaurant, the Kings p aid the

cashier for their drinks. They complained to the cashier about

the slow service and expressed to her their dissatisfaction at

having waited so long, and in vain, for their meals. 5 The Kings

perceived that the cashier and other employees, includin g their

waitress who was standing within earshot, were indifferent to

the Kings’ distress.

Ultimate Factual Determinations

6. At the material time, La Playa was a “public food

service establishment” within the reach of Section 509.092,

Florida Statutes, and hence subject to liability for unlawful

discrimination in violation of the Florida Civil Rights Act.

7. The greater weight of the evidence fails to establish

that La Playa refused to serve, or otherwise unlawfully

discriminated against, the Kings.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

9. Being a private entrepreneur, a restaurant operator

“has the right to refuse . . . service to any person who is

objectionable or undesirable to the operator[.]” Section

509.092, Florida Statutes. Under the Florida Civil Rights Act, 6

however, a “public food service establishment” may not refuse to

serve any perso n on the basis of “race, creed, color, sex,

physical disability, or national origin.” Id. “A person

aggrieved by a violation of [Section 509.092] or a violation of

a rule adopted [thereunder] has a right of action pursuant to s.

760.11.” Id.

10. T he term “public food service establishment” is

defined as “any building, vehicle, place, or structure, or any

room or division in a building, vehicle, place, or structure

where food is prepared, served, or sold for immediate

consumption on or in the vicini ty of the premises; called for or

taken out by customers; or prepared prior to being delivered to

another location for consumption.” Section 509.013(5)(a),

Florida Statutes. As found, La Playa was, in fact, a public

food service establishment.

11. Acti ons for redress of civil rights violations arise

less frequently out of retail and service settings than from

employment situations. Indeed, if the dearth of state case law

on the subject is instructive, the right of action authorized

under Section 509.09 2, Florida Statutes, appears rarely to have

been exercised.

12. In the absence of any decisions of the state appellate

courts interpreting the pertinent language of Section 509.092,

the undersigned finds persuasive the opinion of a federal

district cour t sitting in Florida, which found, in a case

brought under Florida law involving the allegation that a

restaurant had discriminated against the African - American

plaintiffs by requiring prepayment for their meals, that the

substantive rights afforded under the state statute are informed

by the federal anti - discrimination laws after which the Florida

Civil Rights Act was patterned. See Stevens v. Steak N Shake,

Inc. , 35 F.Supp.2d 882, 886 (M.D.Fla. 1998)(“[T]his Court looks

to established federal public acco mmodation law in order to

determine the meaning of the term ‘such refusal may not be based

upon race, creed, [or] color . . .’ in Fla. Stat. § 509.092, and

to determine the elements of [the plaintiffs’] civil rights

claims under the Florida Statute.”); see also Laroche v.

Denny’s, Inc. , 62 F.Supp.2d 1375 (S.D.Fla. 1999)(in case where

restaurant was alleged to have refused service to black

customers, court treated plaintiffs’ federal and state law

claims as having identical substantive elements), 7 rev’d in p art ,

vacated in part , 281 F.3d 1285 (11th Cir. 2001)(Table).

13. The two federal statutes that guard against

discrimination in public accommodations, including restaurants,

are Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a,

et seq. , and 42 U.S.C. § 1981. E.g. Stevens , 35 F.Supp.2d at

886. As a practical matter, in race - based, refusal - to - serve

cases, courts usually draw no meaningful distinction between the

elements of a Title II claim, on the one hand, and a Section

1981 claim, on the othe r. E.g. id. at 886 - 87; Laroche , 62

F.Supp.2d at 1382 - 83.

14. In Stevens , the district court, following federal

precedents, held that to prevail under Section 509.092, Florida

Statutes, a plaintiff must establish three elements: (1) he is

a member of a protected class; (2) the defendant intended to

discriminate against the plaintiff on that basis; and (3) the

defendant’s racially discriminatory conduct abridged a

statutorily protected right. Id. at 887.

15. Other courts, including the district court i n Laroche ,

have found the familiar McDonnell Douglas framework of elements

and shifting burdens, 8 which was fashioned for use in Title VII

litigation, to be applicable in public accommodation cases.

This shifting - burden scheme is generally viewed as being more

plaintiff - friendly than the simple tripartite test employed in

Stevens , for, in permitting the plaintiff to profit from an

inference of discriminatory intent, the McDonnell Douglas

framework enables him to make a prima facie case without direct

evide nce of intent, which is often unavailable. 9

16. There is some disagreement between the courts that

have followed the shifting - burden approach as to the specific

elements of the plaintiff’s prima facie case. In Laroche , for

example, the court required th e plaintiffs to establish

initially, by a preponderance of the evidence, that:

1. they are members of a protected class;

2. they attempted to contract for services and to afford

themselves the full benefits and enjoyment of a public

accommodation;

3. they were deni ed 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.

62 F.Supp.2d at 1382. Other courts have deemed the foregoing

four - part formula to be too restrictive and onerous for

plaintiffs, given that, in the context of retail transactions,

plaintiffs can be expected to encounter difficulti es in

attempting to produce similarly situated persons who were not

discriminated against. A few courts thus have adopted a three -

part prima facie test tailored to the public accommodation

setting, under which a plaintiff must prove that:

1. he is a member o f a protected class;

2. he sought to make or enforce a contract for services

ordinarily provided by the defendant; and

3. he was denied the right to enter into or enjoy the

benefits or privileges of the contractual relationship

in that (a) the plaintiff was depr ived of services

while similarly situated persons outside the protected

class were not and/or (b) the plaintiff received

services in a markedly hostile manner and in a manner

which a reasonable person would find objectively

discriminatory.

See Christian v. Wal - Mart Stores, Inc. , 252 F.2d 862, 872 - 73,

supplemented on rehearing , 266 F.3d 407 (6th Cir. 2001); O’Neill

v. Gourmet Systems of Minnesota, Inc. , 213 F.Supp.2d 1012, 1020

(W.D.Wis. 2002)

17. The undersigned has refrained from going into great

detail concerning the various tests that courts have developed

for articulating the elements of a plaintiff’s prima facie case

in the public accommodation context because the subtleties and

nuances of the respective legal theories underlying such tests

are academ ic in the case at hand. The reason is that, even

under the most lenient test, the Kings simply have not made out

a prima facie case of discrimination.

18. In making this determination, the undersigned has

found persuasive the opinions of several court s that have

examined “slow service” (as opposed to “no service”) claims

against restaurants. The difficulty inherent in such claims is

that nearly everyone who eats in restaurants experiences slow

service now and again; indeed, such occasional frustration s,

like finding oneself trapped in what seems to be the slowest

checkout line at the supermarket, are commonly experienced by

everyone, regardless of race, creed, color, sex, physical

disability, or national origin. Faced with one of these

unexpected inco nveniences, moreover, it is human nature, the

undersigned believes, to perceive that others around us have

avoided our present misfortune —— which, of course, adds insult to

the injury. Thus, for example, while standing in the slow

checkout aisle, we observ e a customer in another lane paying for

his purchase, even though we know he got in his line after we

got in ours.

19. Mindful of these considerations, courts have found

that poor service in the retail or restaurant industry, without

more , is just too commonplace to give rise to an inference of

discrimination. This point was well put in Robertson v. Burger

King, Inc. , 848 F.Supp. 78 (E.D.La. 1994), wherein the

plaintiff, a black man, alleged that the defendant’s employee

had discriminated against him b y making him wait for his food,

after ordering, while proceeding to take the orders of several

white men who had stood behind him in line. Dismissing the

case, the court wrote:

In the instant case, plaintiff was not

denied admittance or service —— his servi ce

was merely slow. While inconvenient,

frustrating, and all to common, the mere

fact of slow service in a fast - food

restaurant does not, in the eyes of this

Court, rise to the level of violating one’s

civil rights. While it is unfortunate that

plaintiff had to wait for his food, and may

have in fact been served after others who

had not ordered sausage biscuits, he has

nevertheless failed to state a cognizable

claim for violation of his civil rights.

Id. at 81 (footnote omitted). The court noted that th e

plaintiff had “not claimed that others who came after him and

ordered similar items were served their food first,” id. at 81

n.4 (emphasis added), which cast some doubt on whether the

plaintiff and the white patrons were truly similarly situated.

20 . To prevail on a claim of unlawful discrimination

involving slow service, then, the plaintiff must demonstrate

that the slow service was accompanied by some additional

conduct, or attended by some other circumstances, such that,

taken as a whole, the res ulting situation was “tantamount to a

denial of service or a refusal to serve,” Stevens , 35 F.Supp.2d

at 891 n.6, from which the requisite discriminatory intent can

reasonably be inferred. A good example of the kind of

additional conduct that transforms s low service into a civil

rights violation is provided by Charity v. Denny’s, Inc. , 1999

WL 544687 (E.D.La. 1999). In that case, a waiter was alleged to

have harassed and taunted the plaintiffs, and to have directed a

highly offensive, racially charged com ment to them. Id. at *5. 10

The court concluded that the plaintiffs, having alleged more

than mere bad service, had stated a cause of action. See also

Bobbitt by Bobbitt v. Rage Inc. , 19 F.Supp.2d 512, 519 - 20

(W.D.N.C. 1998)(plaintiffs’ allegation that re staurant manager

had required them to prepay for their meals went beyond poor

service and stated legally sufficient claim)

21. Here, the Kings have established that, regrettably,

they received slow service at La Playa , but not that La Play

treated them i n a markedly hostile manner and in a manner that a

reasonable person would find objectively discriminatory. There

are no facts —— other than the slow service, which is, of itself,

insufficiently probative —— suggesting that someone intended to

discriminate ag ainst the Kings on the basis of race. 11 The

evidence, in sum, does not reasonably support the inference of

discriminatory intent. Therefore, while the undersigned cannot,

of course, completely rule out the possibility that the Kings

were in fact victims o f discrimination, he concludes, based on

the evidence presented, that such possibility is too remote or

speculative to be considered “more likely than not.” 12

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED t hat the FCHR enter a final order

dismissing the Kings’ Petition for Relief.

DONE AND ENTERED this 19th day of February, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 19 th day of February, 2003.

ENDNOTES

1 / The reference to unlawful employment practices in the

agency’s Notice of Determination was clearly a mistake, for the

Kings have never asserted an employment discrimination claim

against Respondent .

2 / Petitioners brought this action against “La Playa de Varadero

Restaurant,” which, the record reveals, was not only the name of

the restaurant but also the name of the establishment’s former

corporate owner, which latter was really the responding par ty.

At the end of July 2001 (coincidentally not long after the

events at issue), the corporation that then owned the business

sold the restaurant to a third party. The record contains scant

evidence concerning this transaction; indeed, it is an open

ques tion whether the former corporate owner presently exists as

an active corporation. Nevertheless, because La Playa’s former

corporate owner appeared through counsel and participated in

this proceeding as the responding party without objection, the

undersig ned concludes that any issue regarding the identity of

the proper party respondent was waived.

3 / The Kings were not able to recall at hearing the entrées that

they had ordered. Mrs. King thought she had ordered rice, and

Mr. King remembered ordering bl ack beans and rice. Because

these items are commonly served as side dishes at a Cuban

restaurant —— like a baked potato at a steak house —— and would not

ordinarily be ordered as the main course of a meal, the

undersigned infers that the Kings ordered somethi ng more than

beans and rice for dinner.

4 / While the undersigned accepts the Kings’ testimony that none

of the other diners was African - American, there is insufficient

evidence about these customers ( e.g. when they arrived and what

they ordered) to deter mine whether they and the Kings were

similarly situated. Put simply, it is impossible to make a

meaningful “apples to apples” comparison between the Kings and

the other customers, because the record sheds no useful light on

the latter.

5 / The Kings did not, however, mention to her or to anyone else

in the restaurant that they suspected racial animus had been the

cause of the poor service.

6 / The Florida Civil Rights Act comprises Sections 760.01 - 760.11

and 509.092, Florida Statutes. See Section 760.01 (1), Florida

Statutes.

7 / This approach is in accord with the rule that f ederal anti -

discrimination laws may properly be used for guidance in

evaluating the merits of claims arising under Section 760.10,

Florida Statutes. See Brand v. Florida Power C orp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); Florida Dept. of Community Affairs

v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

8 / In McDonnell Douglas Corp. v. Green , 4ll U.S. 792, 802 - 03

(1973), the Supreme Court of the United States articulate d a

burden of proof scheme for cases involving allegations of

discrimination under Title VII, where the plaintiff relies upon

circumstantial evidence. See also , e.g. , St. Mary’s Honor

Center v. Hicks , 509 U.S. 502, 506 - 07 (1993).

Pursuant to this analysi s, the plaintiff has the initial

burden of establishing by a preponderance of the evidence a

prima facie case of unlawful discrimination. Failure to

establish a prima facie case of discrimination ends the inquiry.

See Ratliff v. State , 666 So. 2d 1008, 1 012 n.6 (Fla. 1st DCA),

aff’d , 679 So. 2d 1183 (1996)( citing Arnold v. Burger Queen

Systems , 509 So. 2d 958 (Fla. 2d DCA 1987)).

If, however, the plaintiff succeeds in making a prima facie

case, then the burden shifts to the defendant to articulate some

legitimate, nondiscriminatory reason for its complained - of

conduct. If the defendant carries this burden of rebutting the

plaintiff's prima facie case, then the plaintiff must

demonstrate that the proffered reason was not the true reason

but merely a pre text for discrimination. McDonnell Douglas , 411

U.S. at 802 - 03; Hicks , 509 U.S. at 506 - 07.

In Hicks , the Court stressed that even if the trier of fact

were to reject as incredible the reason put forward by the

defendant in justification for its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question whether the defendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. “It is not

enough, in other words, to dis believe the employer; the

factfind er must believe the plaintiff's explanation of

intentional discrimination.” Id. at 519.

9 / Direct evidence is evidence that, if believed, would prove

the existence of discriminatory intent without resort to

inference or presumption. Denney v. The City of Albany , 247

F.3d 1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d

1555, 1561 (11th Cir. 1997).

10 / The plaintiffs alleged they had overheard the waiter say,

“Management can’t force me to serve niggers.” Id. at *1.

11 / It should be remembered t hat the Kings failed to identify

the waitress who served them, the cashier, or any other

employees on duty at the time they visited La Playa; offered few

details about their order; and produced no evidence showing that

they and the other customers were sim ilarly situated. Indeed,

the Kings presented no documentary evidence, such as a receipt,

corroborating their testimony that they visited La Playa. Faced

with such limited proof, La Playa was left largely to guess at

the reasons for the slow service ( e.g. it was a busy evening,

perhaps the Kings ordered a special dish, etc.). As a result,

relatively few facts about the transaction could be found.

12 / This conclusion is not intended to be, and should not be

construed as, a negative comment on the Kings’ c redibility or

sincerity. Nor does the undersigned mean in any way to discount

the Kings’ subjective feelings. Indeed, the undersigned is

convinced that the Kings were genuinely upset and offended by

conduct that they strongly believe was discriminatory. No

matter how heartfelt, however, the Kings’ personal perceptions

of discrimination cannot legally provide a basis for imposing

liability without proof of all the requisite elements of the

cause of action asserted —— proof that, in this case, was lacking.

COPIES FURNISHED :

Veronica M. King

Walter E. King

2595 Pea Ridge Road

Mill Spring, North Carolina 28756

Tomas A. Pila, Esquire

Pila & Associates, P.A.

2525 Southwest Third Avenue

Suite 304

Miami, Florida 33129

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F i nal O rder in this case.