05-002085 Kevin Timmons vs. Waffle House Status: Closed Recommended Order on Wednesday, February 22, 2006.

Summary: The evidence did not demonstrate racial discrimination in Respondent`s public accomodation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEVIN TIMMONS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2085

)

WAFFLE HOUSE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice a hearing was held on November 7, 2005,

before the Honorable Diane Cleavinger, Administrative Law Judge,

Division of Administrative Hearings in Quincy, Florida.

APPEARANCES

For Petitioner: Barbara Hobbs, Esquire

Cummings, Hobbs & Wallace , P.A.

462 West Brevard Street

Tallahassee, Florida 32301

For Respondent: Tracey T. Barbaree, Esquire

Sandra Kim, Esquire

Ashe, Rafuse & Hill, LLP

1355 Peachtree Street, Northeast

Atlanta, Georgia 30309

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner because

of his race.

PRELIMINARY STATEMENT

On April 1, 2005, Petitioner, Kevin Timmons, (Petitioner)

filed a Public Accommodation Complaint of Discrimination against

Respondent, Waffle House, Inc. (Respondent), with the Florida

Commission on Human Relations (FCHR). The Complaint alleged

that Respondent denied him service at its rest aurant based on

his race. On June 8, 2005, the Florida Commission 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 June 8, 2005, Petitioner filed a

Petition for Relief alleging the same facts that were contained

in his earlier complaint. The Petition for Relief was forwarded

to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and

offered the test imony of two witnesses. Petitioner did not

offer any exhibits into evidence. Respondent offered the

testimony of three witnesses and offered four exhibits into

evidence.

After the hearing Petitioner and Respondent filed their

Proposed Recommended Or ders on December 21, 2005.

FINDINGS OF FACT

1. Respondent, Waffle House, Inc., owns and operates a

Waffle House unit located at 2380 E. Brickyard Road, Midway,

Gadsden County, Florida (Midway Waffle House). The Midway

Waffle House offers food an bev erages for sale to the public and

is a "public food service establishment" within the meaning of

Florida Statutes.

2. Petitioner, his wife, Toyka Timmons and her cousin,

Kanton Enzor , are African - American. Petitioner and his wife

live close to St . P etersburg, Florida. Mr. Enzor lives in

Gadsden County, Florida.

3. Mr. Timmons is a school teacher in St. Petersburg,

Florida. He teaches Health and Physical Education. He and his

wife came to Tallahassee around February 5, 2005. On that day

Mr. Timmons, his wife and Mr. Enzor visited Mr. Timmons mother -

in - law's home. The group was at the mother - in - law's home most

of the day. Around 4:00 p.m., or 5:00 p.m., Mr. Timmons

consumed two beers. Because he was not close to a trash can and

did not want to throw the beer caps on the ground, Mr. Timmons

put both beer caps into the pocket of the jacket he had on.

Other than these two beers, neither Mr. or M r s. Timmons consumed

any other alcohol.

4. Later in the evening at about 7:00 p.m., the Timmo ns

and Mr. Enzor went to M r s. Timmons' brother's home on Ocala

Street, in Tallahassee, Florida. Over the next several hours

the group watched a few movies and reminisced about family

memories.

5. M r s. Timmons had been upset all day and had been cryi ng

over the recent death of her grandmother and the serious illness

of her grandfather. While at her brother's house she continued

to be emotionally distraught and was crying , making her eyes red

and swollen .

6. On February 6, 2005, at about 1:00 a. m., Petitioner,

his wife and Mr. Enzor decided to get something to eat and take

Mr. Enzor home. Everyone decided to go to the Midway Waffle

House since it was on the way to Mr. Enzor's home in Gadsden

County. M r s. Timmons was dressed in a head scarf, swe at suit

like jacket, a t - shirt and some jeans. Mr. Timmons was dressed

in a sweat suit jacket, t - shirt and jeans. Neither w as dressed

for going out to a club.

7. The group got into the Timmons' car. Mr. Enzor drove

so that Mr. Timmons could sit in the back seat of the car with

his wife in order to console her. She was again crying.

8. When the group arrived at the Waffle House a large

crowd was both inside and outside of the restaurant. The people

gathered outside of the Waffle House were p laying music and not

eating. The crowd both inside and outside the restaurant was

predominantly black and appeared to have come from the Ten -

Ninety Club, a nightclub located close to the Midway Waffle

House. Petitioner testified that there were a lot of drunk

people coming from the nightclub. The Ten - Ninety club is

patronized predominantly by African - Americans. Apparently, it

is not unusual for the Waffle House restaurant and parking lot

to be extremely crowded after the club closes. On February 6,

200 5, the crowd in the parking lot was estimated to be in the

hundreds and the restaurant was full.

9. As the Timmons' group drove up to the Waffle House,

Mr. Enzor thought that it was going to be a while before they

would be able to get something to ea t. Mrs. Timmons saw a

Caucasian couple walk into the restaurant. Additionally, as

Petitioner's car pulled into the Midway Waffle House parking

lot, Gadsden County Sheriff's Officer, Deputy Stach McIntyre,

pulled into the parking lot to respond to a publi c disturbance

call from the Midway Waffle House staff. The Timmons' group and

the Deputy walked up to the restaurant at the same time. The

Deputy opened the door for Petitioner, Mrs. Timmons, and

Mr. Enzor.

10. Shortly, after the Deputy arrived a t the restaurant,

the majority of those not eating left. The remaining patrons

consisted of two - to - three Caucasians, including the couple who

had entered earlier, with the remainder African - American.

11. The Midway Waffle House consists of several b ooths and

a dining counter. All the booths were full with groups. The

Timmons group sat at the counter along with the Caucasian couple

who had entered before them.

12. The Caucasian couple who had walked in before the

Timmons' group had been give n glasses of water. The evidence

did not show whether the couple desired to order any food or, if

they did, whether their order was taken.

13. Once inside the Waffle House, Mr. Timmons, his wife

and Mr. Enzor quietly waited to be served.

14. At the time, there were three Waffle House employees

working in the restaurant. One waitress was African - American.

The grill cook was Caucasian, and another waitress, Elizabeth

Watson, was "a woman of color," or mixed descent who "could have

been" Afric an - American. Ms. Watson was the waitress for the

Timmons' group. Ms. Watson no longer works for Waffle House and

has moved to New York. She did not testify at the hearing.

15. As the Timmons' group waited to be served, Ms. Watson

walked back and f orth in front of them several times and never

addressed Mr. Timmons, his wife or Mr. Enzor. Other African -

American patrons of the restaurant were being served and

Mr. Timmons recalled watching Ms. Watson walk over to a table of

six African - American custom ers. He also recalled that some of

the African - American customers had drinks.

16. Mr. Timmons raised his finger and said, " E xcuse me"

several times. The waitress ignored them and kept walking back

and forth. After about 20 or 25 minutes passed Mr. Timmons

asked the waitress if they would be served. Finally the

waitress stopped and told them there were some 30 to 35 orders

in front of them and that they would not be served anytime soon

and needed to go somewhere else to eat.

17. Mrs. Timm ons asked if they could get a drink, the

waitress said, "No, you might as well go somewhere else. You're

not going to be served here today. ” Mrs. Timmons recalls a

party of four or five African - American customers in a booth near

the counter and describes , "I just remember their food coming

out to them, and I remember thinking, now, why do th e y have

their food and I'm not going to be served?"

18. After the waitress tried to explain that the cook

"couldn't prepare any more meals at the current time."

Mrs. Timmons became angry with Ms. Watson, raised her voice and

stated, "You mother heifer, you mean to say you're not going to

serve us here? That's not fair. We haven't done anything.

We've been sitting here for about 40 minutes and you're not

going to serve us." Mr. Enzor admits that it was "possible"

Mrs. Timmons used profanity with Ms. Watson. At this point,

Mr. Timmons was relatively quiet and Mrs. Timmons asked loudly

why they weren’t going to be served. Both asked to speak with

the manager. The waitress pointed to a 1 - 800 complaint number

posted on the wall. Mr. Timmons demanded to speak with a

manager , not understanding that the manager was not on the

premises. The discussion grew heated and words were exchanged.

The disturbance could be heard over the background noise of the

restaurant, which was relatively loud.

19. At this point, the grill cook noticed Mr. and

Mrs. T immons. He "heard quite a few expletives used," and

recalls "the gentleman was using language, and then the lady

the n actually jumped into - - got into the situation." The cook

also heard the server tell Mr. and Mrs. Timmons that she refused

to serve them because of their "language and their attitude."

20. At about the same time, Deputy McIntyre noticed the

disturba nce. He came over and sat down in an empty chair next

to Mr. Timmons and asked "what the problem was." Mr. Timmons

said the waitress refused to take their order. The deputy asked

Ms. Watson "why she wasn't taking the order." Ms. Watson told

him that sh e had been called a "mother F'er."

21. Waffle House policy provides that anyone who is

disruptive or uses profanity can be refused service in the

restaurant at any time, that a server has the right to ask such

a customer to leave, and that if the cus tomer does not leave,

the server can contact the police and have the customer removed.

Customers at the Midway Waffle House have been denied service

for being drunk and disorderly, for using foul language, and for

fighting.

22. Deputy McIntyre asked the waitress what she wanted to

do. She said she wanted them to leave. At the hearing,

Petitioner admitted that the waitress "probably wanted us to

leave because my wife probably said some words to her, but I was

never rude to her. I was very polite to her asking for service,

and never received it."

23. Both the Timmons and the waitress were agitated.

Mr. Timmons asked Deputy McIntyre why he had to leave when all

they wanted was to get served. Mr. Timmons said, "She can't

tell us to leave. We di dn't do nothing wrong. We want

something to eat." The Deputy said, "She wants you to leave,"

and indicated that they had to leave the Waffle House because

they were trespassing.

24. Mr. Timmons demanded to see the manager. He was again

directed to the 1 - 800 number listed on the wall of the Waffle

House. Deputy McIntyre tried to explain that there was no

manager at the Waffle House and that "if you don't leave, I'm

going to have to make you leave." Mr. Timmons said "Go ahead,

arrest me something along those lines." Mr. Timmons responded ,

"If you touch me, I'll sue you and I'll have your badge."

25. Deputy McIntyre arrested Mr. Timmons for trespass ing

and public intoxication and placed him in handcuffs.

Mr. Timmons' asked, "Why are you ar resting me? You can't arrest

me for nothing. I haven't done nothing." He then told the

officer, "I could have your badge for this. What is your name?"

Mr. Timmons was escorted out of the Waffle House. Mrs. Timmons

and Mr. Enzor followed the officer o utside. Deputy McIntyre

searched Mr. Timmons and found the two beer bottle caps in his

jacket pocket. Mrs. Timmons, who was agitated, asked the

officer why her husband was being arrested. Deputy McIntyre

grew exasperated and threatened to place Mrs. Tim mons under

arrest if she did not remain quiet and leave. Because

Mrs. Timmons did not cease asking the officer what her husband

was charged with and did not leave, she too was arrested and

charged with trespassing. Mr. Enzor who remained quiet outside

th e Waffle House was not arrested. Mr. and Mrs. Timmons were

later acquitted after a trial on the criminal charges.

2 6 . Mr. Timmons testified that as a result of this

incident he suffered a great deal and incurred both actual and

future damages. Unqu estionably, Mr. Timmons was mortified,

embarrassed and angered over the incident at the Midway Waffle

House and his subsequent arrest. However, Mr. Timmons never

sought to discuss the Waffle House visit and/or his arrest with

a mental health professional or counselor. He returned to work

the next school day after the arrest. He testified that the

incident caused his relationship with his wife and her family to

take an emotional beating because they believed that he was the

reason she had gotten arrested. However, there was no objective

evidence to support Mr. Timmons' assertion. Mr. Timmons also

testified that his future earning capacity would be impacted

because of the arrest and the manner in which he was treated by

Waffle House. However, at this poi nt, such impacts are highly

speculative, at best. Finally, Mr. Timmons testified that his

out - of - pocket expenses related to the defense of his criminal

charges totaled $12,000.00.

2 7 . After the incident Petitioner filed a complaint with

the Waffle H ouse. The complaint stated: "I was very

dissatisfied because the waitress was rude because she was upset

with other customers. ”

2 8 . The Timmons believe that "the reason they were not

being served was because there was a rowdy crowd that was inside

the Waffle House and on the outside, and that they were being

grouped with those people." They felt this was racial

discrimination.

2 9 . However, no Waffle House employee told Deputy McIntyre

to arrest Mr. or Mrs. Timmons. It was Deputy McIntyre's

d ecision to arrest both Timmons. Likewise, no employee of

Waffle House made any statement that indicated the Timmons'

group had come from the Ten - Ninety Club. Additionally, there

was no mention of race by any employee of Waffle House or by

Deputy McIntyre . Finally, the evidence in this case does not

show that the Timmons' treatment at the Waffle House or

subsequent arrest were motivated by their race. The evidence

was clear that the events of that night were caused initially by

M r s. Timmons ’ behavior and added to by Mr. Timmons ’ behavior and

an overworked waitress. The whole incident was unfortunate with

events escalating out - of - control. The events were not due to

racial discrimination , and the Petition For Relief should be

dismissed.

CONCLUSIONS OF L AW

30 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fl a. Stat.

31 . Section 760.08, Florida Statutes , provides:

all persons shall be entitled to the full

an d equal enjoyment of goods, services,

facilities, privileges, advantages,

and accommodations of any place of public

accommodation, . . . without discrimination

or segregation on the ground of race, color,

national origin, sex, handicap, familial

status, or religion.

32. Section 509.092, Florida . Stat utes , provides that a

restaurant operator "has the right to refuse . . . service to

any person who is objectionable or undesirable to the

orpeator[.]" Read together, it is clear that a restaurant may

refuse to serve potential customers for a variety of reasons,

but may not refuse service based on the customer's race, creed,

color, sex, physical disability, or national origin.

3 3 . Section 5 09.013(5)(a), Florida . Stat utes , defines

"public food service es tablishment" as follows:

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 vicinity of the

premises; called for or taken out by

customers; or prepared prior to being

delivered to another location for

consumption.

Waffle House is a public food service establishment and is

subject to the Florida Civil Rights Act.

3 4 . The Florida Civil Rights Act is based on federa l anti -

discrimination statutes, Title II of the Civil Rights Act of

1964, 42 U.S.C. § 2000a, et seq. and 42 U.S.C. § 1981. See

Stevens v. Steak N Shake, Inc. , 35 F. Supp. 2d 882, 886 ("[T]his

Court looks to established federal public accommodation law in

order to determine the meaning of the term 'such refusal may not

be based upon race, creed, [or ] color . . .' in Fl orida Stat utes,

Section 509.092, and to determine the elements of [the

plaintiffs'] civil rights claims under the Florida Statutes.");

see als o 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),

rev'd in par t , vacated in part , 281 F.3d 1285 (11th Cir. 2001).

Therefore, federal case law can be used to interpret the Florida

Civil Rights Act.

3 5 . In McDonnell Douglass Corp. v. Green , 411 U . S . 792

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

burden of proof for cases involving allegations of

discrimination under Title VII cases. Under that case, a

plaintiff has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. If the pl aintiff establishes a prima facie case

then the respondent must go forward and articulate a legitimate

nondiscriminatory reason for the action taken by the respondent.

Once the respondent has articulated a legitimate

nondiscriminatory reason, the plaintif f then must establish by a

preponderance of the evidence that the reason given is not true

or merely pretextual. The same framework also applies to

complaints regarding discrimination in public accommodations.

See Reeves v. Sanderson Plumbing Prods., Inc . , 530 U.S. 133

(2000); see also generally Brown v. American Honda Motor Co. ,

939 F.2d 946, 949 (11th Cir. 1991) (applying Title VII

procedural framework to Section 1981 case; granting summary

judgment for defendant).

3 6 . In Laroche v. Denny's, Inc. , 62 F. Supp. 2d 1375 (S.D.

Fla. 1999) a petitioner must initially establish by a

preponderance of the evidence that:

a. they are a member of a protected class;

b. they attempted to contract for services

and to afford themselves the full benefits

and enjoyment of a public accommodation;

c. they were denied the right to contract

for those services and, thus, were denied

the full benefits or enjoyment of a public

accommodation; and

d. such services were available to

similarly situated persons outsi de the

protected class who received full benefits

or enjoyment, or were treated better.

3 7 . Clearly, as an African - American, Petitioner is a

member of a protected class. He attempted to eat at Waffle

House and to enjoy the full benefits and enjoym ent of the public

restaurant. Mr. Timmons was denied the right to eat at the

restaurant and was therefore denied the full benefits or

enjoyment of a public accommodation. However, Petitioner failed

to prove the fourth element of his prima facie case of r ace -

based denial of service because other African - American customers

were being served at the Waffle House by the same waitress.

3 8 . Nor did Petitioner present any evidence of similarly -

situated non - African - American customers who arrived after he and

his party but received favorable treatment. Rather, all of the

other customers, a few who were Caucasian and the vast majority

of whom were African - American, appeared to have had their orders

taken and/or received drinks or food. Petitioner and his part y

were the last to arrive and admit they were told that the

waitress could not take their order because the cook had

30 - to - 35 orders in front of them. Moreover, the evidence

demonstrates that Petitioner was not asked to leave the Midway

Waffle House unti l he and his wife engaged in a heated exchange

with the Waffle House waitress. See , e.g. , Rosado Maysonet v.

Solis , 409 F. Supp. 576, 579 - 80 (D.P.R. 1975) (finding no

inference of racial discrimination where plaintiffs were

excluded from casino due to ref usal to comply with dress code

and "rowdy" intoxicated behavior); Evans v. Holiday Inns, Inc. ,

951 F. Supp. 85 90 (D.Md. 1997) (granting motion for summary

judgment where plaintiffs failed to establish prima facie case

of discriminatory enforcement of a mo tel policy regarding

sanctions for noise and obnoxious behavior).

3 9 . Finally, Petitioner's claim that the waitress may have

"associated" h im and his party with a group of African - American

customers with whom she had become upset earlier because they

"were black" cannot form the basis of a claim of racial

discrimination. Petitioner's "association" theory is based on

speculation. Speculation alone cannot support a claim of

discrimination. See Laroche v. Denny's Inc. , 62 F. Supp. 2d

1366, 1368 (S.D. 1999) (holding that the "law is clear that

suspicion, perception, opinion, and belief cannot be used to

defeat" judgment as a matter of law). Lizardo v. Denny's Inc. ,

270 F.3d 94, 102 (2d Cir. 2001) ("A failure to greet customers

on an extremely busy even ing and an exasperated - even testy -

response to a complaint of discrimination do not constitute

marked hostility as defined, nor are they conduct which should

be presumed to have its origins in racial bias . . . the heated

exchange of words does suggest ange r, but there is nothing to

suggest that the anger stemmed from a bias against people of

[the plaintiff's] race."). See also Robertson v. Burger King,

Inc. , 848 F. Supp. 78, 81 (E.D. La. 1994) ("While inconvenient,

frustrating, and all too 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."); See also

Callwood v. Dave & Buster's, Inc. , 98 F. Supp. 2d 694, 706

(D. Md. 2000).

40 . Even assuming Petitioner presented a prima facie case

of race discrimination, Respondent presented evidence of

legitimate, nondiscriminatory reasons for Petitioner's failure

to obtain service. Specifically, the evidence showed that the

Waffle House waitress was overwhelmed, and that when the

waitress told Mr. and Mrs. Timmons she could not take their

order because there were 30 - to - 35 orders in front of them,

Mr. and Mrs. Timmons became angry and engaged in a heated

exchange with the waitress. Per the Waffle House policy the

wait ress legitimately decided she wanted them to leave. There

was no evidence to suggest that Waffle House's nondiscriminatory

reasons for asking Mr. Timmons and his party to leave were

pretextual. See Bass v. Guess? Inc. , 54 F. Supp. 2d 1105, 1117

(S.D. Ala . 1999) (a plaintiff cannot show pretext where he

concedes the accuracy of defendant's articulated non -

discriminatory reasons for the adverse action); Alexis v.

McDonald's Restaurants, Inc. , 67 F.3d 341, 347 - 48

(1st Cir. 1985) (plaintiff's testimony that defendant acted

"angrily" toward plaintiff with a negative tone and "had 'no

reason' to eject" plaintiff from restaurant failed as a matter

of law to demonstrate purposeful discrimination, noting that

there was no probative evidence indicating that the man ager's

petulance was anything other than a race - neutral reaction to a

stressful encounter). Therefore, the Petition for Relief should

be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that:

T he Florida Commission on Human Relations enter a final

order dismissing the Petition for Relief.

DONE AND ENTERED this 2 2nd day of February 2006, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Admini strative 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 Admi nistrative Hearings

this 2 2nd day of February 2006.

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Barbara Hobbs, Esquire

Cummings, Hobbs & Wallace, P.A.

462 West Brevard Street

Tallahassee, Florida 32301

Tracey T. Barbaree, Esquire

Sandra Kim, Esquire

Ashe, Rafuse & Hill, LLP

1355 Peachtree Street, Northeast

Atlanta, Georgia 30309

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.