10-001665 Robyn Cohen vs. Carnival Cruise Lines Status: Closed Recommended Order on Tuesday, September 21, 2010.

Summary: Petitioner failed to prove prima facie case of discrimination against handicapped person in provision of public accommodation due to absence of proof that she asked cruise ship to allow her service to board the vessel.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBYN COHEN , )

)

Petitioner, )

)

vs. ) Case No. 10 - 1665

)

CARNIVAL CRUISE LINES, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Ro bert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on July 30, 2010 .

Petitioner, her counsel, and one of her witnesses appeared in

Tallahassee, and Re spondent's corporate representative, counsel,

in - house counsel, and witnesses, as well as one witness for

Petitioner, appeared in Miami.

APPEARANCES

For Petitioner: Marcy I. Lahart, Esquire

4804 Southwest 45th Street

Gainesville, Florida 32609

For Respondent: Kara S. Nickel

Stearns Weaver Miller Weissler

Alhadeff & Sitterson, P.A.

Museum Tower, Suite 2200

150 West Flagl er Street

Miami, Florida 33130

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of discriminating

against Petitioner, due to her handicap, in providing a public

accommodation, in violation of Section 760.08, Florid a Statutes .

PRELIMINARY STATEMENT

By Complaint of Discrimination dated September 22, 2009,

Petitioner alleged that Respondent discriminated against her in

providing a public accommodation by denying her the right to be

accompanied by her service animal. The Complaint alleges that,

on August 9, 2009, Petitioner had arrived at the terminal to

board a Carnival cruise ship in Ft. Lauderdale, but was stopped

by one of Respondent's employees and told she could not board

with a dog. The Complaint alleges that P etitioner replied that

her dog was a service animal for her disability. The Complaint

alleges that the employee asked what the disability was and why

she needed a service animal. The Complaint alleges that

Petitioner produced a card identifying her servi ce animal -- a dog

named "Rocky." The employee allegedly contacted a supervisor,

who asked Petitioner to produce the documentation again. The

Complaint alleges that Petitioner was denied travel with her

service animal, but eventually boarded without the se rvice dog,

allowing her boyfriend to take the dog home.

On March 5, 2010, the Florida Commission on Human Relations

entered a Notice of Determination: No Cause.

On March 15, 2010, Petitioner filed a Petition for Relief.

The Petition alleges that Respon dent violated the Florida Civil

Rights Act of 1992, as amended, by failing to accommodate her

and her service animal on a cruise, failing to notify her within

ten days of why she was denied the public accommodation, and

unlawfully requiring advance notice of a need for an

accommodation. The Petition seeks a wide range of compensatory

damages.

By Order on Motion to File First Amended Petition entered

May 6, 2010, the Administrative Law Judge granted Petitioner

leave to amend her grounds for liability to in clude a second

denial of public accommodation at the first port reached by the

cruise vessel after leaving Port Everglades, Key West. Even

though the Complaint had not specifically pleaded this

violation, there is a reasonable relationship between the

ple aded allegations of acts and omissions at Port Everglades and

the new allegations of similar acts and omissions at Key West,

and the ensuing investigation should reasonably have addressed

this matter. See Scholz v. RDV Sports , 710 So. 2d 618, 622

(Fla. 5t h DCA 1998).

By Order on Respondent's Motion to Compel and Petitioner's

Motion for Protective Order entered July 8, 2010, the

Administrative Law Judge struck all claims for damages or other

affirmative relief for medical expenses or medical bills,

pursu ant to the limited relief authorized in administrative

proceedings, as provided in Section 760.11(6), Florida Statutes,

as contrasted to the broader relief, including specifically

"compensatory damages," authorized in judicial actions, as

provided in Sec t i on 760.11(5), Florida Statutes, and case law

defining compensatory damages to include medical expenses. See ,

e.g. , Stewart v. George W. Davis & Sons, Inc. , 340 F. Supp. 643,

646 (N.D. Fla. 1972); Cooperative Leasing, Inc. v. Johnson , 872

So. 2d 956 (Fla. 2d DCA 2004). See also Florida Public

Utilities Company v. Large , 493 So. 2d 491 (Fla. 4th DCA 1986)

(Human Rights Act of 1977, which limited courts and

administrative judges to "affirmative relief," did not authorize

award of compensatory damages in the form of pain and

suffering). Cf. Broward County v. LaRosa , 505 So. 2d 422 (Fla.

1987) (administrative agency may not constitutionally award

nonquantifiable damages, such as for pain and suffering or

humiliation); Laborers' International Union, Local 478 v .

Burroughs , 541 So. 2d 1160 (Fla. 1989) (court questioned whether

administrative agency could award front pay, which, though more

quantifiable than damages for suffering, is "somewhat

indefinite" because it is based on an "arbitrary" determination

of dura tion of front pay).

On July 15, 2010, Respondent filed its stipulation that

Petitioner is a person with a disability, within the meaning of

the Florida Civil Rights Act, and that Petitioner's dog, Rocky,

is a service animal, within the meaning of Florida law. At the

hearing, Respondent further stipulated that Rocky serves

Petitioner's disability.

At the hearing, Petitioner called four witnesses and

offered into evidence no exhibits. Respondent called three

witnesses and offered into evidence three exhib its : Respondent

Exhibits 2, 3, and 10, which were admitted .

The court reporter filed the T ranscript on August 23 , 2010 .

The parties filed P ropose d R ecommended O rders on September 17 ,

2010.

FINDINGS OF FACT

1. Petitioner suffers from a panic disorder fo r which she

requires the assistance of a service animal . Her service animal

is a 40 - pound German Shepherd mix named "Rocky." Rocky enables

Petitioner to overcome certain specific disabilities associated

with her condition , but she does not always require Rocky's

assistance.

2. In the summer of 2009, Petitioner's mother organized a

family vacation in the form of a Car i bbean cruise on a vessel

operated by Respondent. She selected a cruise departing Port

Everglades on August 9, 2009. The group included Pe titioner's

father, Petitioner's sister, her fianc é , and other s . The first

port of call for the cruise after departing Fort Lauderdale was

Key West, after which the vessel would sail to various ports

under the jurisdiction of other countries.

3. On the morning of the departure, Petitioner's then -

boyfriend John McCarthy drove her and Rocky from Key Biscayne,

where they live in the same condominium building . Mr. McCarthy

proved to be a useful witness. He and Petitioner a re no longer

in a relationship. M r. McCarthy portrayed the events largely in

agreement with Petitioner's version of events, although his

reliability is somewhat undermined by the fact that he and

Petitioner have discussed many times what exactly took place on

that day. H owever, he displa yed a spirited independence from

Petitioner, as when he described her decision to file this

"lawsuit" as "ridiculous, " and, more importantly, admitted that,

while in the terminal, he was unsure whether Petitioner wanted

to take Rocky with her on the cruise . Much, but not all, of his

testimony has been credited.

4. Leaving Key Biscayne that morning, Petitioner did not ,

in fact, intend to have Rocky accompany her on the cruise.

Among other possible reasons, Petitioner's mother had asked her

not to bring Ro cky , and Petitioner had acc eded to her mother's

wish. It was Petitioner's intent only for Rocky to see her off.

5. Without incident, Petitioner, Mr. McCarthy, and Rocky

left the car at the cruise terminal parking area and made their

way into the cruise lobby. The trio entered the lobby amidst

swarms of embarking and disembarking passengers.

6. Respondent hosts on its cruises many passengers with

disabilities, including some passengers with service animals.

Two Carnival managers described Respondent's policies for

accommodating disabled passengers. The Guest Access Support

manager, Kay Strawderman, explained the process by which persons

purchasing cruise tickets are directed to complete a form that

provides information about disabilities or special nee ds.

7. If a passenger is bringing a service animal, Respondent

informs the passenger that he or she must contact the U.S.

Department of Agriculture for current regulations , by port,

governing animals, such as requirements for vaccination records .

These r egulations are imposed by the countries visited by the

vessel and may be enforced even if the animal does not leave the

ship. Neither Respondent nor the U.S. government has the

authority to permit any deviations from these foreign laws.

8. Using the info rmation provided in the completed forms,

the Guest Access Support department compiles a list of special -

needs passengers, including passengers who will be bringing

service animals. The Guest Access Support department sends this

list to the Guest Logistics d epartment.

9. Assigned to the terminal and in direct contact with

passengers , Guest Logistics employees ensure the efficient

boarding and exiting of the vessels and movement through the

terminal. The Guest Logistics manager, Doris Enamorado,

testifie d that her employees use the special - needs lists to

ensure that special - needs passengers and, if applicable , their

service animals are directed to special boarding areas, so they

can board without any delay.

10. Ms. Strawderman and Ms. Enamorado both cons idered the

question of what they would do if a special - needs passenger

failed to fill out and return the forms , but arrived at the

terminal seeking to board with her service animal . The question

is hypothetical because this has never previously happened ,

including on the day in question .

11. Ms. St rawderman insisted that, if a special - needs

passenger failed to return the forms, Respondent would not deny

boarding. Ms. Enamorado added that, if one of her employees

encountered a passenger with an animal i n the terminal seeking

to board, the employee would determine if the animal were a

service animal, including how it services the disability, and

then examine the vaccination records, without which a service

animal may not sail due to the requirements of th e laws of

foreign countries .

12. Shortly after they entered the terminal, Petitioner,

Mr. McCarthy, and Rocky were approached by a Carn ival employee

named "Alex." Respondent invites the inference that Petitioner

spontaneously exploded into anger and hyst erics. At the

hearing, Petitioner displayed a tendency toward combativeness,

but none toward spontaneous anger or hysterics. More likely,

Alex, upon encounter ing Petitioner, Mr. McArthur, and a dog in a

crowded terminal, momentarily failed to display the composure

and dedication to service of Respondent's managerial employees

who testified at the hearing.

13. Mr. McCarthy's testimony is es pecially useful at this

point and is largely credited. Approaching Petitioner, Alex

abruptly informed her that Rocky could not proceed. It is

likel y that Alex assumed that Rocky wa s a mere pet, as he does

not wear a special cape or harness and Petitioner does not bear

any obvious indication of a disability.

14. Petitioner replied that Rocky wa s a service dog, and

he w as present only to see her off on the cruise. Alex replied

that Petitioner did not appear to suffer from a disability. As

Mr. McCarthy aptly notes, "the fight was on."

15. Each side called for reinforcements. Petitioner spoke

on her cellphone with her sister and mother. Alex summoned his

supervisor, who joined the fray. Mr. McCarthy and Rocky wisely

stood to the side.

16. By now, Petitioner was crying out of control . In this

condition, she could not reliably report on what she said to

Respondent's e mployees or what they said to her . Mr. McCarthy

seems to have been unable to hear much of what the parties were

saying to each other. Respondent's employees report that their

behavior was impeccable. Regardless, t here is no reliable

evidence that Petiti oner ever dema nded that Rocky, her service

animal , board the vessel with her.

17. Much evidence suggests that Petitioner never intended

to take Rocky on the cruise. As far as Petitioner's mother or

Mr. McArthur knew, Rocky was staying home. Petitioner h erself

had failed to pack any food for Rocky, nor did she at any time

instruct Mr. McArthur to drive to a nearby store to obtain any.

No evidence suggests that Petitioner had brought with her any

proof of Rocky's vaccinations, which might be required by t he

various countries that they were visiting. Once on board,

Petitioner did not even demand that Respondent allow Rocky to

board in Key West.

18. To convince her daughter to board the vessel,

Petitioner's mother said that Rocky could join them in Key Wes t.

Even after the vessel had sailed, Petitioner, s till agitated,

spoke constantly with Mr. McCarthy until the vessel sailed out

of cellphone range. She directed him to drive Rocky to Key West

to join her on the cruise, but Mr. McCarthy, citing a bad back

and th e fact that his birthday was the next day, declined to do

so, instead taking Rocky to South Beach the following day.

Mr. McCarthy's testimony suggested a boyfriend who was unwilling

to cater to his girlfriend's capricious decision to make an

issue with Rocky, not a boyfriend who was unwilling to help

right a wrong that his girlfriend had suffered.

19. At some point prior to arriving in Key West,

Petitioner realized that Mr. McCarthy had no intention of

driving Rocky to Key West. Rather than disemb ark in Key West,

as she wanted , Petitioner acceded to her mother's exhortations

and remained on board , but she was very unhappy for the

remainder of the cruise .

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the sub ject matter. §§ 120.569, 120.57(1),

and 760.11(4)(b) and (6), Fla. Stat. (2009).

21. 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.

22. Section 760.02(11), Florida Statutes, defines "public

accommodations" as:

"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. . . .

23. A cruise ship is a public accommodation. Spector v.

Norwegian Cruise Line, Ltd. , 545 U.S. 119, 129, 125 S. Ct. 2169,

2177 (2005) (cruise ship is public accommodation under Americans

with Disabilities Act). By stipula tion, Petitioner is a person

with a handicap, and Rocky services her disability.

24. Title II of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000a, prohibits discrimination in places of public

accommodation , in identical language as that found in Section

76 0.08, Florida Statutes, except for the omission of certain

protected classes , including handicap. Due to the lack of Title

II cases, federal courts routinely find guidance in the law of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ,

includi ng the law of the shifting burdens of production of

evidence. See Fahim v. Marriott Hotel Services , 551 F.3d 344,

349 (5th Cir. 2008).

25. Therefore, t he Title II plaintiff must prove a prima

facie case of discrimination by proving membership in a

prot ected class, an attempt to contract for services of a public

accommodation, a denial of those services, and the provision of

these services to similarly situated persons not in the

protected class. Id. at 350. Following proof of a prima facie

case of dis crimination, the defendant would have an opportunity

to show a legitimate business purpose for its acts or omissions,

and the plaintiff would then have an opportunity to show that

the legitimate business purpose was pr etextual. Id. (citing

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

(1973)).

26. Here, Petitioner has failed to prove a prima facie

case. She has failed to prove that she was denied any services

for which she contracted. Obviously, Respondent did not deny

Petitioner the o pportunity to take the cru i se. Moreover,

because the evidence fails to establish that Petitioner asked

for her service animal to accompany her on the cruise,

Petitioner failed to prove that Respondent denied her the

opportunity to take the cruise with her service animal .

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing Petitioner's amended petition.

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

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 684 7

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st d ay of September , 2010.

COPIES FURNISHED:

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608

Martha deZayas, Esquire

Carnival Cruise Lines

3655 Northwest 87 Avenue

Miami, Florida 33131

Kara S. Nickel, Esquire

Stearns Weaver Miller Weissler

Alhadef f & Sitterson, P.A.

150 West Flagler Street, Suite 2200

Miami, Florida 33130

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commis sion 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.