07-002526 Micheline Raphael vs. Carnival Cruise Line Status: Closed Recommended Order on Tuesday, January 22, 2008.

Summary: Petitioner failed to prove that five of the complained acts occurred within the State of Florida and Petitioner failed to establish a prima facie case of discrimination for the remaining incident.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELINE RAPHAEL, )

)

Petitioner, )

)

vs. ) Case No. 07-2526

)

CARNIVAL CRUISE LINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

October 26, 2007, in Miami, Florida, before Administrative Law

Judge June C. McKinney of the Division of Administrative

Hearings, pursuant to the authority set forth in Sections

120.569 and 120.57(1), Florida Statutes. 1

APPEARANCES

For Petitioner: Micheline Raphael, pro se

Post Office Box 371301

Miami, Florida 33127

For Respondent: James S. Bramnick, Esquire

Akerman Senterfitt

SunTrust International Center, 28th Floor

One Southeast Third Avenue

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue is whether Respondent has committed a

discriminatory act with respect to public accommodations in

violation of Chapter 760, Florida Statutes, and if so, what

remedy should be provided.

PRELIMINARY STATEMENT

Micheline Raphael (Ms. Raphael or Petitioner), filed with

the Florida Commission on Human Relations (Commission) a Public

Accommodations Complaint of Discrimination, alleging that during

a cruise on one of Respondent's vessels, Respondent

discriminated against Ms. Raphael on the basis of "race" in

violation of Florida Statute, Chapters "509/760." On May 1,

2007, the Commission issued its Determination: No Cause.

On May 31, 2007, Petitioner filed a Petition for Relief

with the Commission, and on June 6, 2007, the Commission

forwarded the matter to the Division of Administrative Hearings

(DOAH) for the assignment of a DOAH administrative law judge.

The matter was noticed for hearing for September 25 and 26,

2007. The hearing was canceled and re-scheduled for October 26,

2007, and proceeded as scheduled.

At hearing, Petitioner presented only her testimony and

Petitioner's Exhibits numbered 1 through 14 were admitted into

evidence. Respondent presented the testimony Mark Mayer,

Customs and Border Protection Officer; Leon Sutcliffe, Director

of Port Operations; Mathew Paul, Triumph Chief Security Officer

(by deposition transcript); Gloria Clayton (by deposition

transcript); and Ian Smith, Vice President of Hotel Services

Carnival Cruise Lines (by deposition transcript). In addition,

the following exhibits were offered and received into evidence:

Respondent's 1 through 11, 13 through 18, and 21 through 23.

The proceeding was recorded and transcribed. The

Transcript of the final hearing (consisting of two volumes) was

filed with DOAH on November 8, 2007. The parties were given

until December 10, 2007, to file proposed recommended orders.

On November 28, 2007, Petitioner filed a letter assumed to be

her Proposed Recommended Order. On December 7, 2007, Respondent

filed its Proposed Recommended Order. On December 27, 2007,

Respondent filed a Motion to Strike the letter. Striking the

letter is not appropriate and the request to do so is denied.

Due consideration was given to Petitioner’s letter and

Respondent's Proposed Recommended Order in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Respondent operates a fleet of cruise ships. The

Triumph is one of the ships in its fleet. It sails from Miami,

Florida. Among the cruises that Respondent offers on the

Triumph is a seven-day cruise to the Western Caribbean, which

stops in Grand Cayman, Cayman Islands, Ocho Rios, Jamaica, and

Cozumel, Mexico.

2. Ms. Raphael, a Black female, contracted to and took a

seven-day Western Caribbean cruise on the Triumph from March 18-

25, 2006. It was Ms. Raphael's first cruise and she traveled by

herself. The make up of the passengers and crew on the ship

included all races: Asians, Caucasians, Indians, Hispanics,

African Americans, etc.

3. The Triumph left the Port of Miami on March 18th and

was at sea in international waters until it returned to the Port

of Miami on the 25th. On the 20th, the ship docked at Cozumel.

On the 22nd, the ship was at Grand Cayman and on the 23rd it

docked in Ocho Rios. The Triumph sailed under a foreign flag

and is registered in Panama.

4. When Ms. Raphael boarded the Triumph on March 18, 2006,

her picture was taken with the rest of the passengers.

Paris Dining Room:

5. Upon boarding, Petitioner was given a card that

assigned her to the Paris dining room, lower level, table 334,

for 5:45 p.m. dining. During the first two days of the cruise,

Petitioner did not go to her assigned table in the Paris dining

room because she really didn't pay attention to where she was to

go.

6. On the third day of the cruise, Ms. Raphael received

another dining room reservation card for the Triumph's Paris

dining room, table 334 at 5:45 p.m.

7. Petitioner's allegations in her petition relating to

the incident in the Paris dining room were not substantiated by

the evidence at hearing. Ms. Raphael presented inconsistent

testimony and failed to prove any of the allegations.

Pizza Incident:

8. While in international waters, Petitioner went to the

pizzeria on the Lido deck to get pizza because she was hungry.

She stood in line with other passengers to get a slice of pizza.

Ms. Raphael took the last piece of pizza. The slice was burnt.

After Ms. Raphael got the last slice of pizza, the server left

to go get another pizza pie. Ms. Raphael didn't wait for him to

return but, instead just threw the burnt pizza away. She

neither asked for a new slice of pizza nor addressed or

complained about the burnt slice to anybody.

Housekeeping Incident:

9. Ms. Raphael could not get her television in her cabin

to work properly. She complained to the purser's office two

times to get it fixed. On March 20, 2006, staff reported to the

purser's office that Petitioner was using the television

incorrectly and it was fine.

10. Petitioner reported to a Triumph employee that her

room had not been cleaned for the first few days of the cruise.

Housekeeping cleaned her room after she made her report.

11. Petitioner talked to a staff member assigned to clean

her room about his national origin and found out that the crew

member was from India. So, she informed him that she was from

Haiti. After the conversation, Ms. Raphael left her cabin.

When she returned to her room it was clean and a towel in the

shape of two little pigs and a sign that spelled out the word

"Haiti" was left on her bed. 2

12. Carnival's policy requires that stewards leave towel

animals on all passengers' beds in their cabins nightly. The

stateroom stewards are trained to make various towel animals for

passenger cabins, including pigs. Carnival sells a book, Towel

Creations with Freddy, which contains instructions for

assembling animals. Over 800,000 copies of the book have been

sold.

Petitioner's Cruise Account Incident:

13. Ms. Raphael went to the ship's casino to play Bingo.

When she went to withdraw money to play, the employee she

approached didn't provide her money because she did not have

identification. So, Petitioner went back to her room to get her

identification.

14. After Petitioner returned to the casino, showed her

identification, and requested $10.00, she was told there was no

money in her account. This incident occurred on or about the

fourth day of the cruise. Ms. Raphael witnessed passengers of

other races in line getting money in the casino.

15. After Petitioner was denied any withdrawal of money,

she went to another Carnival Cruise Line cashier to withdraw

money and was told that there was about 40 something dollars in

her account. Petitioner did not go back to the casino to play

bingo. 3 Petitioner also got her account straight by having the

cashier remove the service gratuity for meals off her account

since she had not eaten in the dining room.

16. At the end of the cruise, Carnival Cruise gave the

Petitioner a check for $58.44. Although she complained at

hearing that she made a $200.00 deposit and she was given credit

for a $100.00 deposit, she accepted it without further

complaint.

Jewelry Store Incident:

17. Petitioner went to the jewelry store on the cruise

ship with fellow passenger Ms. Clayton and received what she

considered was bad service.

18. The retail jewelry store is operated by Starboard

Cruise Services Limited (Starboard), an independent contractor

of Carnival Cruise Line. The employees of the retail jewelry

shop are hired, trained, supervised, and employed by Starboard.

19. A male employee was assisting Petitioner and

Ms. Clayton, answering their questions and showing them jewelry

items, when three other people came up. The salesperson walked

away from Petitioner to help the other customers before he

finished assisting Ms. Raphael and Ms. Clayton.

20. Petitioner addressed this treatment with another

cashier, an employee of Starboard, who apologized to her and

said that he would report the matter to the head office.

Ms. Raphael never made any additional complaints about the

salesperson's rudeness after informing the cashier.

21. The jewelry store is only open while in international

waters. Petitioner's visit to the jewelry store was made when

the ship was at sea and in international waters.

Cabin Search Incident:

22. On March 24, 2006, Homeland Security Officer Mayer

sent an e-mail to Triumph Chief Security Officer Paul requesting

Ms. Raphael's "A-pass/on/off activity." After the request,

Officer Paul provided Petitioner's A-pass activity to United

States Customs and Boarder Protection (CBP), a part of the

United States Department of Homeland Security.

23. CBP requested an escort to search Petitioner's room

when the Triumph docked. Respondent neither initiated the

search, requested the search, nor participated in the search of

Petitioner's cabin, other than to have a security officer escort

CBP Officers Mayer and Maize to Ms. Raphael's cabin. Respondent

has no knowledge as to why CBP chose Ms. Raphael's cabin to

search.

24. When the Triumph docked at the port in Miami on

March 25, 2006, Homeland Security went to search Ms. Raphael's

cabin. After they knocked on her cabin door, at 6:49 a.m.

Petitioner took approximately three minutes to open the door.

Emanuel Moise, a Carnival crew member, was found in the bathroom

when CBP came to search Petitioner's room. Petitioner waited in

the hall with a female security officer while CBP performed the

search of her cabin with a K-9 detector dog.

CONCLUSIONS OF LAW

25. DOAH has jurisdiction over the subject matter of and

the parties to this action in accordance with Sections 120.569

and 120.57(1), Florida Statutes.

26. The Florida Civil Rights Act of 1992 (Act) is codified

in Sections 760.01 thorough 760.11, Florida Statutes, and

Section 509.092, Florida Statutes. § 760.01(1), Fla. Stat.

27. A "discriminatory practice," as defined in the Act,

"means any practice made unlawful by the Florida Civil Rights

Act of 1992." § 760.02(4), Fla. Stat.

28. Section 760.01 of the Act explains that the general

purpose of the Act is to:

. . . [S]ecure for all individuals within

the state freedom from discrimination

because of race, color, religion, sex,

national origin, age, handicap, or marital

status and thereby to protect their interest

in personal dignity, to make available to

the sate their full productive capacities,

to secure the state against domestic strife

and unrest, to preserve the public safety,

health, and general welfare, and to promote

the interests, rights, and privileges of

individuals within the state ." [Emphasis

added.]

29. In the Petition for Relief filed in this matter,

Ms. Raphael has alleged that, during her cruise on the Triumph,

Respondent engaged in practices made unlawful by Section 760.08,

Florida Statutes.

30. Article 2, Section 1 of the Florida Constitution

defines the boundaries of the State of Florida in great detail,

the relevant portion of the definition being "down the middle of

[the St. Mary's] river to the Atlantic Ocean; thence due east to

the edge of the Gulf Stream or a distance of three geographic

miles whichever is the greater distance." See Fla. Const. Art.

2 §1 (a).

31. In this matter all acts complained of occurred outside

the United States in international waters except the Homeland

Security cabin search incident. The Commission does not have

authority to act upon discriminatory complaints which extend

beyond the boundaries of Florida as defined in the Constitution.

Fioravanti v. Carnival Cruise Lines , Case No. 06-1433, Fla. Div.

Adm. Hear LEXIS 566, December 7, 2006.

32. Therefore, as a matter of law, the Commission does not

have jurisdiction over any of the allegations that occurred at

sea in international waters: the Paris dining room incident;

burnt pizza incident; housekeeping incident; cruise account

incident; and the jewelry store incident.

33. As to the remaining incident, Petitioner's complaint

is based on a perceived violation of Section 760.08, Florida

Statutes, which requires all persons to be entitled to the full

and equal enjoyment of goods, services, facilitates, privileges,

advantages, and accommodations of any place of public

accommodation, as defined in Chapter 760, Florida Statutes,

without discrimination or segregation on the ground of race,

color, national origin, sex, handicap, familial status or

religion.

34. Pursuant to Section 760.02(11), Florida Statutes,

"public accommodations" is defined as follows:

"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. Each of the following

establishments which serves the public is a

place of public accommodation within the

meaning of this section:

(a) Any inn, hotel, motel, or other

establishment which provides lodging to

transient guests, other than an

establishment located within a building

which contains not more than four rooms for

rent or hire and which is actually occupied

by the proprietor of such establishment as

his or her residence.

(b) Any restaurant, cafeteria, lunchroom,

lunch counter, soda fountain, or other

facility principally engaged in selling food

for consumption on the premises, including,

but not limited to, any such facility

located on the premises of any retail

establishment, or any gasoline station.

(c) Any motion picture theater, theater,

concert hall, sports arena, stadium, or

other place of exhibition or entertainment.

(d) Any establishment which is physically

located within the premises of any

establishment otherwise covered by this

subsection, or within the premises of which

is physically located any such covered

establishment, and which holds itself out as

serving patrons of such covered

establishment.

35. Respondent is a place of public accommodation as

defined by Section 760.02(11)(a), Florida Statutes. See

Fioravanti , Fla. Div. Adm. Hear LEXIS at 28.

36. The Act is patterned after Title VII, and federal case

law dealing with Title VII is applicable to cases arising under

the Florida Act. Florida State University v. Sondel , 685 So. 2d

923, 925n.1 (Fla. 1st DCA 1996); Velez v. Levy World Limited

Partnership, 182 Fed. Appx. 929, 932 (11th Cir. 2006).

37. In order to prove discrimination violative of Section

760.08, Florida Statutes, Petitioner may demonstrate her case

through direct evidence of discrimination; pattern and practice

of discrimination; or circumstantial evidence of discrimination.

Afkhami v. Carnival Cruise Lines , 305 F. Supp. 2d 1308, 1320

(S.D. Fla. 2004). Direct evidence of discrimination, which is

"composed of only the most blatant remarks, where intent could

be nothing other than to discriminate," Schoenfeld v. Babbitt ,

168 F. 3d 1257, 1266 (11th Cir. 1999), is not at issue in this

case. Likewise, Petitioner has not submitted evidence of a

pattern and practice of discrimination. Akfhami, 305 F. Supp.

2d at 1321 (plaintiff must present evidence of a pattern and

practice of differential treatment affecting other members of

his or her class that is systematic as opposed to isolated,

sporadic incidents).

38. In order to demonstrate discrimination by indirect or

circumstantial evidence, Petitioner must establish: 1) that she

is a member of a protected class; 2) that she attempted to

contract for services and to afford herself the full benefits

and enjoyment of a public accommodation; 3) that she was denied

the right to contract for those services and thus denied the

benefits and enjoyments of same; and 4) that similarly situated

persons who were not members of the protected class received

full benefits or enjoyment, or were treated better. Foster v

Howard University Hospital , No. 06-244, 2006 U.S. Dist. LEXIS

74512 (D.C. 2006); Afkhami , 305 F. Supp. 2d at 3122; Laroche v.

Denny's Inc. , 62 F. Supp. 2d 1375, 1382 (S.D. 1999).

39. As to the remaining allegation, Petitioner's cabin

search by Homeland Security, Petitioner has not established a

prima facie case of discrimination. While Petitioner proved

that she is a member of a protected class and contracted for

services aboard the Triumph, no evidence was presented that

Carnival Cruise Line either initiated or performed the search,

which was conducted by Homeland Security. The evidence

demonstrated that Homeland Security was totally and solely

responsible for the cabin search.

40. Therefore, Petitioner did not meet her burden of

proving her public accommodation discrimination claim against

Respondent relating to the cabin search.

41. If Carnival Cruise Line is subject to the Act and,

therefore, subject to the jurisdiction of the Commission, there

is no direct, indirect, or circumstantial evidence of

discrimination on the basis of race against Ms. Raphael in the

search of her cabin.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That a final order be entered that dismisses Petitioner's

Public Accommodations Complaint of Discrimination.

DONE AND ENTERED this 22nd day of January, 2008, in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

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 22nd day of January, 2008.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2007 codification.

2/ The housekeeping incident was not included in Petitioner's

Petition for Relief. However, Respondent was aware of the issue

and addressed it at deposition, with evidence at hearing, and in

it's Proposed Recommended Order. Therefore, the housekeeping

incident is accepted as an issue tried by consent to the

parties.

3/ The cruise account incident was not included in Petitioner's

Petition for Relief. However, Respondent was aware of the issue

and addressed it at deposition, with evidence at hearing, and in

it’s Proposed Recommended Order. Therefore, the cruise account

incident is accepted as an issue tried by consent to the

parties.

COPIES FURNISHED:

James S. Bramnick, Esquire

Akerman Senterfitt

SunTrust International Center, 28th Floor

One Southeast Third Avenue

Miami, Florida 33131

Micheline Raphael

Post Office Box 371301

Miami, Florida 33127

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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.