08-001330 Yonel Vixamar vs. Tri-Management Company, D/B/A Burger King Status: Closed Recommended Order on Friday, September 12, 2008.

Summary: Petitioner, who purchased food and receives requested refund, is not discriminated against on the basis of race or national origin when he complains about the service and the restaurant manager asks him to leave the restaurant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YONEL VIXAMAR, )

)

Petitioner, )

)

vs. ) Case No. 08-1330

)

TRI-MANAGEMENT COMPANY, d/b/a )

BURGER KING, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on July 25, 2008, in Naples, Florida.

APPEARANCES

For Petitioner: Yonel Joseph Vixamar, pro se

14095 Collier Boulevard North

Naples, Florida 34119

For Respondent: J. Scott Hudson, Esquire

Hudson Law Firm

SunTrust Center

200 South Orange Avenue, Suite 1220

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner on the basis of national origin or race in violation

of Section 760.08, Florida Statutes (2005), 1 during Petitioner’s

visit to a Burger King restaurant on June 3, 2006.

PRELIMINARY STATEMENT

Petitioner filed a Complaint of Discrimination with the

Florida Commission on Human Relations (the Commission) on

May 25, 2007. On January 24, 2008, the Commission issued a

Notice of Determination: Cause. Petitioner timely filed a

Petition for Relief, and the Commission referred the matter to

DOAH to conduct an administrative hearing.

At the hearing, Petitioner testified, called one other

witness, and submitted seven exhibits for admission into

evidence. Respondent called one witness and submitted four

exhibits. The identity of the witnesses and exhibits, and any

associated rulings, are reported in the Transcript of the

hearing filed with DOAH on August 22, 2008. Respondent filed

its Proposed Recommended Order (PRO) on August 26, 2008.

Petitioner did not file a PRO.

FINDINGS OF FACT

1. Petitioner is in a protected class within the meaning

of Subsection 760.02(6). Petitioner’s national origin is

Haitian, and his race is Black.

2. Respondent operates a Burger King restaurant located at

1260 North Fifteenth Street, Immokalee, Florida 34142 (the

Restaurant). The Restaurant is a place of public accommodation,

defined in Subsection 760.02(11)(b).

3. Petitioner, his wife, and his two children visited the

Restaurant on June 3, 2006, for the purpose of purchasing and

consuming food served by the Restaurant. Petitioner and his

family entered the Restaurant, and Petitioner waited in line to

order food for the family.

4. Petitioner placed his order and paid for the food he

ordered. The cashier and food service employee on duty at the

Restaurant was Ms. Jessica Lopez. Ms. Lopez is a Hispanic woman

who is married to a Haitian man.

5. Ms. Lopez delivered the correct food order to

Petitioner and placed all of the food on one service tray.

Petitioner asked Ms. Lopez to sort the food orders onto separate

trays. In response, Ms. Lopez provided Petitioner with

additional trays so that Petitioner could sort the food orders

onto separate trays.

6. Petitioner requested Ms. Lopez to either sort the

orders onto separate trays or refund Petitioner’s money to him.

Ms. Lopez refunded Petitioner’s money, and Petitioner started to

exit the Restaurant.

7. Petitioner’s testimony is clear that Petitioner had

concluded his business transaction with the Restaurant after

receiving the refund. Petitioner intended to leave the

Restaurant and take his family to a nearby McDonald’s

restaurant.

8. Petitioner claims that before he left the Restaurant

Ms. Lopez cursed at him and referred to his national origin by

saying, “Get the fuck out of here, you fucking Haitian.”

Ms. Lopez testified that Petitioner cursed at her when he

requested a refund and that she may have cursed at him at the

time she refunded the money. However, Ms. Lopez denied making

any comments related to national origin. The fact-finder finds

her testimony to be credible and persuasive.

9. Petitioner’s testimony at the hearing conflicts with

his deposition testimony that was published in the record. In

deposition testimony, Petitioner testified that he was “pissed

off” and “screaming” at Ms. Lopez in the Restaurant, but that

Ms. Lopez did not respond. Rather, she continued waiting on

other customers.

10. During the incident at the Restaurant, three other men

joined Petitioner at the counter as he screamed at Ms. Lopez.

None of the men testified at the hearing. The other witness

called by Petitioner did not hear the exchange between

Petitioner and Ms. Lopez. It is undisputed that the alleged

comments by Ms. Lopez are the only alleged references to the

national origin or race of Petitioner by any employee or manager

at the Restaurant.

11. Respondent’s store manager, Mr. Lewis Sowers, a

Caucasian male, heard the disturbance at the counter of the

Restaurant. Mr. Sowers asked Petitioner and the other gentlemen

to leave the Restaurant.

12. Mr. Sowers contacted the police department regarding

the disturbance, and the officer on the scene completed a police

report. A copy of the police report was admitted into evidence

as Respondent’s Exhibit 2 without objection.

13. Petitioner exited the Restaurant and also contacted

law enforcement. A police report and related statements were

admitted into evidence at the hearing as Petitioner’s Exhibits 3

through 5 without objection.

14. The alleged discrimination by Ms. Lopez did not impede

Petitioner’s ability to contract for goods or services at the

Restaurant. Petitioner admits that, if he had accepted the

extra trays from Ms. Lopez and sorted the food order, there was

no reason to believe he would have been asked to leave the

Restaurant. Petitioner admits that once he received the refund,

he had no intention of staying in the Restaurant, does not have

a practice of visiting Burger King restaurants unless he is

eating there, and was on his way out the door to another

restaurant. Thus, any attempt to contract for goods and

services with Respondent had terminated before the alleged

discrimination.

15. Petitioner presented no evidence of any damages

sustained as a result of the alleged discrimination. Petitioner

had a severe headache later in the day on June 3, 2006, and

during portions of June 4, 2006. Petitioner attributed the

headache to drinking a cold soda at McDonald’s while upset about

the events at the Restaurant. However, other than this claim of

unidentified damages, Petitioner testified that he had not

suffered any economic or other tangible harm from the alleged

discrimination. Further, Petitioner failed to answer

Respondent’s Request for Documents evidencing mental anguish,

suffering or punitive damage awards he believed to be

appropriate.

CONCLUSIONS OF LAW

16. DOAH has jurisdiction over the subject matter of and

(2008). It is an unlawful practice for a place of public

accommodation to discriminate against or segregate individuals

on the basis of race or national origin. § 760.08.

17. Chapter 760, The Florida Civil Rights Act (FCRA), is

patterned after federal civil rights legislation. Cases

construing federal civil rights legislation can be used to

interpret the FCRA. 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).

18. Petitioner has the ultimate burden of proof in this

proceeding. Petitioner must prove the alleged discrimination by

a preponderance of the evidence. 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).

19. Petitioner has the initial burden of establishing a

prima facie case that the alleged discrimination occurred. In

order to satisfy the requirement for a prima facie showing of

discrimination, Petitioner must present evidence that:

(1) Petitioner is a member of a protected

class;

(2) Petitioner attempted to contract for

services and to afford himself the full

benefits and enjoyment of a public

accommodation;

(3) Petitioner 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 and 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); LaRoche v. Denny’s, Inc. , 62 F. Supp. 2d 1375, 1382 (S.D.

Fla. 1999); McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973).

20. Petitioner satisfied the first two requirements for a

prima facie showing of discrimination. It is undisputed that

Petitioner is a member of a protected class, based on his

national origin and race, and that Petitioner attempted to

contract for services and afford himself the full benefits and

enjoyment of a public accommodation.

21. Petitioner did not satisfy the third requirement for a

prima facie showing of discrimination. Petitioner admits he was

not denied the right to contract for food and services served at

the Restaurant and in fact paid for and received food and

services for which he contracted. See Stevens v. Steak n Shake,

Inc. , 35 F. Supp. 2d 882, 890 (M.D. Fla. 1998) (no prima facie

case of racial discrimination where the complaining party is not

denied service).

22. Petitioner complains that he received poor service.

However, poor service or slow service is not tantamount to the

denial of service and does not represent a basis to assert a

violation of Petitioner’s civil rights. See Robertson v. Burger

King, Inc. , 848 F. Supp 78 (E.D. La. 1994) (no showing of

discrimination where Caucasian customers, arriving later than

the plaintiff, were served first). The alleged comment by

Ms. Lopez, if proven, may demonstrate gross insensitivity, but

in and of itself, does not establish a claim under the civil

rights laws. Petitioner was still required to show that he was

refused service or admittance on the basis of race or national

origin. See Stearnes v. Baur’s Opera House, Inc. , 788 F. Supp.

375, 378(C.D. Ill. 1992).

23. The request for Petitioner to leave the Restaurant did

not deny Petitioner the right to contract for food and services.

Petitioner successfully contracted for food and services,

received a refund, and intended to leave the Restaurant before

management requested Respondent to leave the Restaurant. The

contract for goods or services ended well before management

asked Petitioner to leave the Restaurant.

24. Petitioner also failed to meet the fourth requirement

for a prima facie showing of discrimination. A preponderance of

the evidence does not support a finding that similarly situated

individuals of a different national origin or race received

services or benefits that were denied to Petitioner.

Petitioner’s testimony affirms that he did not see Respondent’s

employees sort food orders onto separate trays for any other

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

at 890. Deshawn v. Denny’s, Inc. , 918 F. Supp 1418, 1424

(D. Colo. 1996).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order finding Respondent not guilty of the alleged

discrimination and dismissing the Petition for Relief.

DONE AND ENTERED this 12th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 12th day of September, 2008.

ENDNOTE

1/ References to chapters, sections, and subsections are to

Florida Statutes (2005), unless otherwise stated.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

J. Scott Hudson, Esquire

Hudson Law Firm

SunTrust Center

200 South Orange Avenue, Suite 1220

Orlando, Florida 32801

Yonel Joseph Vixamar

14095 Collier Boulevard North

Naples, Florida 34119

Larry Kranert, 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.