09-005888 Peter R. Garcia vs. Heart Of Florida Medical Center Status: Closed Recommended Order on Friday, May 21, 2010.

Summary: Florida Commission on Human Relations did not have jurisdiction to hear Petitioner's claims. The granting of hospital privileges is not included in Subsection 760.10(5), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER R. GARCIA, )

)

Petitioner, )

)

vs. ) Case No. 09-5888

)

HEART OF FLORIDA MEDICAL )

CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on April 16, 2010, in Orlando, Florida, before Susan B. Harrell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Peter Garcia, pro se

2030 Stone Cross Circle

Orlando, Florida 32828

For Respondent: Denise Wheeler, Esquire

Fowler, White, Boggs, P.A.

Post Office Box 1567

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

The issue in this case is whether the Florida Commission on

Human Relations (Commission) has jurisdiction over Petitioner’s

claims of discrimination.

PRELIMINARY STATEMENT

Petitioner, Peter Garcia, M.D. (Dr. Garcia), filed an

Employment Complaint of Discrimination with the Commission on

April 8, 2009. In the complaint, he alleged that he “began

working for respondent [Heart of Florida Medical Center] and

Preferred Emergency Physicians in March 2007” and that

Respondent, Heart of Florida Medical Center, had discriminated

against him based on a disability. On September 30, 2009, the

Commission issued a Determination: No Jurisdiction, stating

that the Commission lacked jurisdiction to consider the

complaint because Heart of Florida Medical Center was not an

employer as defined in Subsection 760.02(7), Florida Statutes

(2008). 1

Dr. Garcia filed a Petition for Relief (Petition) with the

Commission, alleging that Heart of Florida Medical Center had

committed an unlawful employment practice and a public

accommodation discriminatory practice. The Petition was

forwarded to the Division of Administrative Hearings on

October 26, 2009, for assignment to an Administrative Law Judge.

The case was originally assigned to Administrative Law

Judge J.D. Parrish, but was transferred to Administrative Law

Judge Susan B. Harrell to conduct the final hearing. The final

hearing was originally scheduled for February 12, 2010, but was

continued and rescheduled for April 16, 2010.

At the final hearing, Dr. Garcia testified in his own

behalf. Heart of Florida Medical Center called Trudie Kramer

and John Finnegan as its witnesses. Neither party submitted any

exhibits.

No transcript of the final hearing was ordered. Dr. Garcia

filed his proposed recommended order on April 26, 2010, and

Heart of Florida Medical Center filed its proposed recommended

order on April 27, 2010. Both proposed recommended orders have

been given consideration in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Dr. Garcia is board-certified in emergency medicine and

family medicine.

2. Beginning on or about March 2007, Dr. Garcia had been

given hospital privileges by Heart of Florida Medical Center to

practice in its emergency department. Dr. Garcia was not

employed by Heart of Florida Medical Center.

3. His privileges came up for renewal in 2009. Because of

unresolved concerns regarding Dr. Garcia’s ability to

appropriately assess and treat emergency room patients as a

result of a hearing deficiency, Dr. Garcia’s privileges with

Heart of Florida Medical Center were not renewed.

4. The non-renewal of his privileges at Heart of Florida

Medical Center did not preclude Dr. Garcia from practicing

medicine. It precluded Dr. Garcia from practicing medicine at

Heart of Florida Medical Center. Dr. Garcia has practiced

medicine in Texas since his privileges at Heart of Florida

Medical Center were not renewed. There are other physicians in

Florida who do not have privileges at Heart of Florida Medical

Center and who practice medicine in Florida.

5. The Board of Medicine licenses physicians in the State

of Florida. Heart of Florida Medical Center does not license

physicians.

6. The non-renewal of his privileges at Heart of Florida

Medical Center does not preclude Dr. Garcia from billing third-

party insurance companies in connection with medical services he

provides to insured individuals.

CONCLUSIONS OF LAW

7. The only issue considered in this proceeding is whether

the Commission has jurisdiction over Dr. Garcia’s claims of

discrimination. Dr. Garcia is claiming that Heart of Florida

Medical Center has committed an unlawful employment practice as

set forth in Subsection 760.10(5), Florida Statutes, and a

public accommodation discriminatory practice in violation of

Section 760.08, Florida Statutes.

8. Subsection 760.10(5), Florida Statutes, provides:

Whenever, in order to engage in a

profession, occupation, or trade, it is

required that a person receive a license,

certification, or other credential, become a

member or an associate of any club,

association, or other organization, or pass

any examination, it is an unlawful

employment practice for any person to

discriminate against any other person

seeking such license, certification, or

other credential, seeking to become a member

or associate of such club, association, or

other organization, or seeking to take or

pass such examination, because of such other

person's race, color, religion, sex,

national origin, age, handicap, or marital

status.

9. Dr. Garcia contends that the language of

Subsection 760.10(5), Florida Statutes, means that “any person,

not just an employer, who discriminates against Petitioner while

he is attempting to engage in his profession as an Emergency

Physician at Heart of Florida Medical Center commits an unlawful

employment practice.” Dr. Garcia is correct that a person does

not have to be an employer to be guilty of violating

Subsection 760.10(5), Florida Statutes. However, his contention

that the granting of hospital privileges is covered by

Subsection 760.10(5), Florida Statutes, is incorrect.

10. The language of Subsection 760.10(5), Florida

Statutes, is clear and unambiguous. Dr. Garcia is attempting to

add additional language to the statute in order to modify the

statute to include actions which preclude a doctor from

practicing at a particular facility. “When interpreting a

statute, courts are not at liberty to add words to the statute

that were not placed there by the legislature. State v. J.M. ,

824 So. 2d 105, 111 (Fla. 2002). This is precisely what

Appellant's interpretation of the statute would do.” University

of Florida Board of Trustees v. Andrews , 961 So. 2d 375 (Fla.

1st DCA 2007).

11. Subsection 760.10(5), Florida Statutes, is referring

to the requirements that are necessary to engage in a

profession. Such as those licenses, certifications,

credentials, or memberships that are required for a physician to

practice medicine in Florida. It is not a necessary requirement

that, in order to practice medicine in Florida, a physician has

to have hospital privileges at any hospital, much less a

specific hospital.

12. Section 760.08, Florida Statutes, provides:

All persons shall be entitled to the full

and equal enjoyment of the goods, services,

facilities, privileges, advantages, and

accommodations of any place of public

accommodation, as defined in this chapter,

without discrimination or segregation on the

ground of race, color, national origin, sex,

handicap, familial status, or religion.

13. Subsection 760.02(11), Florida Statutes, defines

“public accommodations” 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.

14. The definition of public accommodation does not

include medical facilities. See Sheely v. MRI Radiology

Network, P.A. , 505 F.3d 1173, 1204 (11th Cir. 2007).

15. Dr. Garcia has failed to establish that the Commission

has jurisdiction to determine his claims of discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered dismissing

the Petition for lack of jurisdiction.

DONE AND ENTERED this 21st day of May, 2010, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 21st day of May, 2010.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 version.

COPIES FURNISHED :

Denise Wheeler, Esquire

Fowler, White, Boggs, P.A.

Post Office Box 1567

Fort Myers, Florida 33902

Peter Garcia

2030 Stone Cross Circle

Orlando, Florida 32828

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.