09-005275 Melissa Cook vs. Astro Skate Pinellas Park, Llc Status: Closed DOAH Final Order on Wednesday, February 3, 2010.

Summary: Petitioner failed to make prima facie showing of discrimination in public accommodations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELISSA COOK, )

)

Petitioner, )

)

vs. ) Case No. 09-5275

)

ASTRO SKATE PINELLAS PARK, LLC, )

)

Respondent. )

)

FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on December 4, 2009, in St. Petersburg, Florida.

The ALJ conducted the hearing by video teleconference from

Tallahassee, Florida, with the parties, witnesses, and court

reporter appearing in St. Petersburg.

APPEARANCES

For Petitioner: Eleanor Cook Johnson

Personal Representative of Melissa Cook

15047 Georgey Boulevard

Clearwater, Florida 33760

For Respondent: Chris Maganias, pro se

Astro Skate Pinellas Park, LLC

10001 66th Street North

Pinellas Park, Florida 33782

STATEMENT OF THE ISSUE

The issue is whether Respondent denied Petitioner access to

a public accommodation on the basis of her disability in

violation of Pinellas County Code Chapter 70 (the Code).

PRELIMINARY STATEMENT

On May 5, 2008, Petitioner timely filed a complaint of

discrimination (the complaint) in a public accommodation with

the Pinellas County Office of Human Rights (the Department).

The Department referred the matter to DOAH to assign an ALJ to

conduct an administrative hearing.

At the hearing, Petitioner's representative testified,

Petitioner did not testify, and Petitioner's representative

submitted one composite exhibit for admission into evidence.

Respondent's representative testified and submitted four

exhibits for admission into evidence.

The description of the exhibits, and any associated

rulings, are reported in the record of the hearing. Neither

party ordered a transcript of the hearing, and neither party

filed a proposed recommended order (PRO).

The undersigned issued a Recommended Order on December 31,

2009. Neither party filed any exceptions to the Findings of

Facts or Conclusions of Law in the Recommended Order.

January 15, 2010, was the deadline for filing exceptions to the

Findings of Facts and Conclusions of Law in the Recommended

Order. The Findings of Fact and Conclusions of Law in the

Recommended Order are adopted in this Final Order.

FINDINGS OF FACT

1. The Department investigated the complaint of Petitioner

and issued a determination on April 2, 2009, that reasonable

cause exists to believe that Respondent denied Petitioner access

to a public accommodation on the basis of her disability.

Respondent requested a hearing, and the Department referred the

matter to DOAH.

2. Several facts are undisputed. Petitioner is a disabled

female confined to a wheel chair. Mr. Chris Maganias is the

owner and operator of the respondent company. The principal

business of the company is the operation of a skating rink in

Pinellas Park, Florida.

3. Petitioner did not present a prima facie case of denial

of access to a public accommodation. After the representative

for Petitioner was placed under oath, the representative stated

the issue that she was there to resolve, but testified to no

substantive matters or other evidence. Her testimony lasted

less than three minutes. There was no cross-examination.

4. Petitioner did not testify. After excusing

Petitioner's representative from her oath, the ALJ asked

Petitioner if she wished to testify, and Petitioner stated that

she did not want to testify.

5. Petitioner's lone exhibit is a two-page affidavit that

lists the allegations which make up the complaint against

Respondent. However, the affidavit does not explain or

supplement competent and substantial testimony, or other

evidence, of the representative or Petitioner at the hearing.

This is a de novo hearing and not an appellate review of a

determination previously made by the Department.

CONCLUSIONS OF LAW

6. DOAH has jurisdiction over the parties and the subject

(2009). The parties received adequate notice of the final

hearing.

7. Federal discrimination law may be used for guidance in

evaluating the merits of claims arising under local

jurisdictions. Tourville v. Securex, Inc., Inc. , 769 So. 2d 491

(Fla. 4th DCA 2000); Greene v. Seminole Elec. Co-op. Inc. , 701

So. 2d 646 (Fla. 5th DCA 1997); Brand v. Florida Power Corp. ,

633 So. 2d 504 (Fla. 1st DCA 1994). Petitioner bears the burden

of proving by a preponderance of the evidence that Respondent

violated the provisions of the Code that prohibit denial of

equal access to public accommodations. Access Now, Inc. v.

South Florida Stadium Corp. , 161 F. Supp. 2d 1357, 1363 (S.D.

Fla. 2001).

8. Petitioner can meet her burden of proof with either

direct or circumstantial evidence. Damon v. Fleming

Supermarkets of Florida, Inc. , 196 F.3d 1354, 1358 (11th Cir.

1999), cert. denied , 529 U.S. 1109 (2000). Direct evidence must

evince discrimination without the need for inference or

presumption. Standard v. A.B.E.L. Services., Inc. , 161 F.3d

1318, 1330 (11th Cir. 1998).

9. There is no direct evidence of discrimination in this

case. In the absence of direct evidence, Petitioner must meet

her burden of proof by circumstantial evidence.

10. Circumstantial evidence of discrimination is subject

to the burden-shifting framework of proof established in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817

(1973); Reed v. A. W. Lawrence & Co., Inc. , 95 F.3d 1170, 1178

(2nd Cir. 1996). Petitioner must first establish a prima facie

case of discrimination. McDonnell Douglas , 411 U.S. at 802;

Munoz v. Oceanside Resorts, Inc. , 223 F.3d 1340, 1345 (11th Cir.

2000). See Ratliff v. State , 666 So. 2d 1008, 1013, n. 6 (Fla.

1st DCA 1996), aff'd , 679 So. 2d 1183 (Fla. 1996) ( citing Arnold

v. Burger Queen Sys. , 509 So. 2d 958 (Fla. 2d DCA 1987)).

11. Petitioner did not make a prima facie case of denial

of access to a public accommodation based on her disability in

this de novo proceeding. The failure to make a prima facie case

ends the inquiry.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that, pursuant to Section 70-77(g)(13) of the Code,

Respondent is not guilty of the allegations in the complaint.

DONE AND ORDERED this 3rd day of February, 2010, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of February, 2010.

COPIES FURNISHED :

Leon W. Russell, Director/EEO Officer

Pinellas County Office of Human Rights

400 South Fort Harrison Avenue, 5th Floor

Clearwater, Florida 33756

William C. Falkner, Esquire

Pinellas County Attorney's Office

315 Court Street

Clearwater, Florida 33756

Melissa Cook

c/o Eleanor Cook Johnson

15047 Georgey Boulevard

Clearwater, Florida 33760

Peter Genova, Jr., EEO Coordinator

Pinellas County Office of Human Rights

400 South Fort Harrison Avenue, 5th Floor

Clearwater, Florida 33756

Chris Maganias

Astro Skate Pinellas Park, LLC

10001 66th Street North

Pinellas Park, Florida 33782

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.