07-004147 Jose M. Gandia vs. Walt Disney World Status: Closed Recommended Order on Thursday, March 13, 2008.

Summary: Petitioner failed to establish discrimination based on national origin. The petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE M. GANDIA, )

)

Petitioner, )

)

vs. ) Case No. 07-4147

)

WALT DISNEY WORLD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final hearing in the above-styled case on

November 20, 2007, in Orlando, Florida.

APPEARANCES

For Petitioner: Jose M. Gandia, pro se

3054 Holland Drive

Orlando, Florida 32825

For Respondent: Paul J. Scheck, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue, Suite 1000

Post Office Box 4956

Orlando, Florida 32802-4956

STATEMENT OF ISSUE

Whether Respondent, Walt Disney World, violated Section

760.08, Florida Statutes (2006), as alleged in the Petition for

Relief in this matter.

PRELIMINARY STATEMENT

On August 30, 2007, the Florida Commission on Human

Relations (FCHR) notified Petitioner, Jose M. Gandia, that based

on its investigation of his March 5, 2007, Complaint of

Discrimination, Public Accommodations, it had determined that

"there was no reasonable cause" to believe that unlawful

discrimination had occurred, as per his Complaint.

On September 5, 2007, Petitioner filed his Petition for

Relief. On September 11, 2007, FCHR forwarded the case to the

Division of Administrative Hearings for assignment of an

Administrative Law Judge to conduct all necessary proceedings

required by law and submit a recommended order.

On September 14, 2007, an Initial Order was sent to both

parties requesting mutually convenient dates for a final

hearing. On October 9, 2007, based on Respondent's response to

the Initial Order (Petitioner did not reply), the case was

scheduled for final hearing in Orlando, Florida, on November 20,

2007.

The case was heard as scheduled. Petitioner testified on

his own behalf. Respondent presented three witnesses: Alan E.

Bakko, Patrick J. Fanning, and Russell A. Olson. Neither party

offered exhibits.

The two-volume Transcript was filed with Clerk of the

Division of Administrative Hearings on January 22, 2008. The

parties agreed to submit proposed recommended orders within

30 days of the filing of the Transcript. Respondent timely

filed a Proposed Recommended Order.

All references are to 2006 Florida Statutes, unless

otherwise indicated.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. Petitioner is a Caucasian male, born in Puerto Rico.

He is an amateur photographer. He had visited Walt Disney World

at least ten times prior to December 1, 2006.

2. Respondent owns and operates a theme park in Orange and

Osceola Counties, Florida. Respondent employs individuals with

the job title, "security host," with the responsibility of

maintaining security in the theme park. This category of

employees is licensed by the State of Florida, and they receive

training in "abnormal behavior of guests," threat analysis,

surveillance, intelligence, and other job-related skills

incidental to maintaining a safe environment within the theme

park. Respondent has a specific protocol regarding theme park

guests exhibiting "abnormal behavior."

3. In the context of this case, taking photographs in the

theme park is not an "abnormal behavior." In fact, guests are

encouraged to photograph those accompanying them and various

theme park characters, e.g., Mickey Mouse. However, excessive

photographing of structures, "mapping or progression

photography," is considered "abnormal behavior." "Mapping"

consists of taking pictures in a progression, so as to

familiarize someone who has never been to an area with the

layout of that area and is considered very unusual behavior.

4. Petitioner entered the Magic Kingdom, part of

Respondent's theme park, on December 1, 2006. A security host

observed Petitioner photographing the main entrance and security

bag check. Petitioner was unaccompanied.

5. The subject matter and manner of Petitioner's

photography was considered to be "abnormal" by the security

host. Once a security cast member identifies potentially

abnormal behavior by a guest, the protocol requires the security

host to contact a member of management (by radio) and continue

to observe the guest.

6. Petitioner moved further into the Magic Kingdom and

took photographs of Main Street and City Hall. Because

Petitioner was limiting his photography to structures, the

security host's initial impression that Petitioner was doing

something "abnormal" was reinforced and, in accordance with the

established protocol, he again called management.

7. As further dictated by Respondent's security protocol,

the uniformed security host is then met by an "undercover"

security host whose job-responsibility is "real-time threat

analysis."

8. The "threat-analysis" security host continued to

observe Petitioner as he took what was interpreted by the

security host to be "panoramic" photographs of Town Square and

"mapping" photographs of the interior of the train station.

He, too, assessed Petitioner's photographic activities as

"abnormal."

9. Because the "threat analysis" security host concurred

with the initial determination of "abnormal," the security

protocol dictates that a security manager make contact with the

guest. This was done in a discreet and unobtrusive manner.

10. The security manager identified himself as an employee

of Respondent and asked Petitioner if "he could do anything to

assist him." Petitioner did not respond, so the security

manager repeated himself.

11. Respondent responded that he "was not an Arab

terrorist," or words to that effect. His response was louder

than conversational, and he appeared to be agitated. Because

Petitioner was uncooperative, the security manager called a

uniformed law enforcement officer, an Orange County, Florida,

deputy sheriff, as dictated by Respondent's security protocol.

12. The deputy sheriff asked for, and received,

Petitioner's driver license. After a license check revealed

that Petitioner's address was valid, he was allowed to pursue

his activities in the theme park. His interaction with the

security manager and deputy sheriff lasted approximately 15

minutes.

13. Petitioner then returned to his theme park photography

without limitation and spent an additional two hours in the

theme park, until his camera's battery pack ran down. He did

not have any further interaction with Respondent's security

personnel, nor was he kept under surveillance.

14. Petitioner returned to Respondent's theme park on

December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had

access to all facilities without difficulty, and had no

encounters with Respondent's security personnel.

15. The incident that occurred on December 6, 2006, was a

result of Petitioner's photography being identified as

"abnormal." There is no evidence that it was precipitated by

his national origin or that Respondent was not exercising

reasonable diligence in an effort to protect theme park visitors

and employees.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter at this

proceeding pursuant to Subsection 120.57(1) and Section 760.11,

Florida Statutes (2007).

17. 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 violation of a rule adopted under this

section has a right of action pursuant to

s. 760.11.

18. Subsection 760.02(11), Florida Statutes, states, in

part:

"Public accommodations" means places of

public accommodation, lodgings, facilities

principally engaged in selling food for

consumption on the premises, gasoline

stations, places of exhibition or

entertainment, and other covered

establishments. . . .

19. Respondent is a "public accommodation" as defined in

Florida law.

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 in public accommodations, sets forth the analysis

which should be used in public accommodation 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 Center 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 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 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-

discriminatory reason for the challenged

action. Id. at 506-507; McDonnell Douglas ,

411 U.S. at 802; Burdine , 450 U.S. at 255,

n. 10. The Defendant's burden of production

is a light one. Batey v. Stone , 24 F.3d

1330, 1334 (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. 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; Burdine , 450 U.S. at 253.

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. The ultimate burden

is on the Plaintiffs to prove that they were

the victims of intentional discrimination.

21. In the present case, Petitioner is a member of a

protected class by virtue of his national origin, Puerto Rican.

He attempted to avail himself of the full benefit and enjoyment

of the public accommodation. He failed to demonstrate that he

was denied the full benefit and enjoyment of the public

accommodation; in fact, after the inquiry into his photographic

activity, he was allowed full utilization of the facility, and

he returned five times in the same month. Finally, Petitioner

failed to establish that such services were available to

similarly-situated persons outside the protected class who

received full benefits or enjoyment or were treated better.

22. Assuming, arguendo , that Petitioner established a

prima facie case of intentional discrimination and denial of

public accommodations based on his national origin, Respondent

now has the burden of producing evidence of a legitimate,

non-discriminatory reason(s) for stopping Petitioner and

inquiring regarding his photography. Respondent has provided

ample evidence of non-discriminatory reasons for the challenged

action. Respondent's activities were deemed "abnormal" by

employees of a public facility that has an obligation to protect

individuals within the confines of the theme park. The inquiry

was reasonable and unobtrusive. It was occasioned by

Petitioner's photographic activity; there is no evidence that

Respondent's concern with Petitioner's photographic activities

was motivated by his national origin.

23. Petitioner has the burden of proving a prima facie

case by the preponderance of the evidence that Respondent denied

him full access and enjoyment of a public accommodation based on

his national origin. Florida Department of Transportation v.

J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). He

has failed to present a prima facie case.

25. Respondent has produced evidence of legitimate,

non-discriminatory reasons for the challenged action. Had

Petitioner presented a prima facie case, any presumption of

discrimination arising out of the prima facie case "drops from

the case." Krieg v. Paul Revere Life Ins. Co. , 718 F.2d 998,

1001 (11th Cir. 1983), cert. denied , 466 U.S. 929 (1984); and

Equal Employment Opportunity Commission v. Navy Federal Credit

Union , 424 F.3d 397, 405 (4th Cir. 2005). The ultimate burden

remains upon Petitioner to prove that Respondent denied him

public accommodation based on his national origin. He has

failed to do so.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Jose M. Gandia, failed to

present a prima facie case of discrimination based on national

origin, and, therefore, this matter should be dismissed in its

entirety and a determination be entered by the Florida

Commission on Human Relations that Respondent, Walt Disney

World, did not violate the provisions of Chapter 760, Florida

Statutes, as alleged in the Petition for Relief.

DONE AND ENTERED this 13th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of March, 2008.

COPIES FURNISHED :

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

Jose M. Gandia

3054 Holland Drive

Orlando, Florida 32825

Paul J. Scheck, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue, Suite 1000

Post Office Box 4956

Orlando, Florida 32802-4956

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.