10-010473 Bette Gantz vs. Zion's Hope, Inc., D/B/A Holy Land Experience Status: Closed Recommended Order on Thursday, March 31, 2011.

Summary: Respondent is not subject to Florida Civil Rights Act, but Petitioners failed to prove discrimination anyway.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES GANTZ , )

)

Petitioner , )

)

vs. ) Case No. 10 - 1 0472

)

ZION'S HOPE, INC., d/b/a )

HOLY LAND EXPERIENCE , )

)

Respondent . )

)

BETTE GANTZ , )

)

Petit ioner , )

)

vs. ) Case No. 10 - 10473

)

ZION'S HOPE, INC., d/b/a )

HOLY LAND EXPERIENCE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case on March 8, 20 1 1 , by way of video

teleconferencing with sites in Orlando and Tallahassee, Florida,

before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings.

APPEARANCES

For Petitioners: James Gantz, pro se

Bette Gantz, pro se

4051 Heyward Street

North Port, Florida 34291 - 4530

For Respondent: John B. Casoria, Esquire

Qualified Representative

23471 Via Roble

Coto De Caza, California 92679

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Zion's Hope,

Inc., d/b/a Holy Land Experience (hereinafter "HLE"),

discriminated against Petitioners, James Gantz and Bette Gantz,

by refusing Petitioners entry into HLE due to the Gantzes' s

disability, i.e., being hard of hearing and requiring the

service of hearing ear dogs.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations (the

"Commission") filed a Transmittal of Petition with the Division

of Administrative Hearings on December 2, 2010. The Transmittal

contained Petitions for Relief filed by each of the Petitioners.

The Commission had previously made a determination that cause

existed under the allegations set forth in the Petitions.

Inasmuch as Petitioners filed their own Petitions for Relief,

t he Co mmission did not appear at the final hearing on their

behalf .

At the final hearing, Petitioners each testified on their

own behalf. A witness offered by Petitioners was not allowed to

testify based on a relevance objection and the witness' s

admitted lack of knowledge as to the facts upon which this case

must be decided. Petitioner s offered two exhibits into

evidence. Respondent called two witnesses: Michael Everett,

general manager of HLE; and Jane Wilcox, guest services

supervisor at HLE. Respondent d id not offer any exhibits into

evidence. Official recognition of two items was requested by

Respondent: A Florida Attorney General Advisory Legal Opinion

(No. AGO 2004 - 34) and the Division of Corporation records

concerning HLE. The two items were offici ally recognized by the

undersigned Administrative Law Judge.

The final hearing was taped by the presiding officer on a

digital recorder, but no transcript of the tape was made. By

rule, the parties were allowed ten days from the date of final

hearing to s ubmit proposed recommended orders. Petitioners and

Respondent each submitted a post - hearing submission. Each was

duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Zion's Hope, Inc. , is a Florida not - for - profit

corporatio n formed in 1989. It is a religious entity with a

Section 501(c)3 designation under the U.S. Tax Code as a bona

fide charitable organization. HLE is a privately - owned

religious theme park operated by Zion's Hope. Religious

services are conducted at HLE seven days a week.

2. HLE is located at 4655 Vineland Road, Orlando, Florida.

The public, upon payment of an admission fee, is invited into

HLE on a daily basis.

3. James and Bette Gantz are an elderly married couple who

reside for part of each year in North Port, Florida. Both James

and Bette are hard of hearing and have suffered from this

affliction for many years. James and Bette each have a

certified hearing ear dog which accompanies them almost

everywhere they go. The dogs were present at the fin al hearing.

4. On March 19, 2010, James and Bette accompanied by their

service dogs and Bette's sister, Lois Wilcox, decided to visit

HLE. Upon arrival, they were told that the HLE parking lot was

full , but that additional parking was available across th e

street. James dropped off Bette, the dogs, and Lois in front of

the HLE entrance, then went to park the car across the street.

5. When Bette, Lois , and the dogs approached the ticket

window to purchase admission into HLE, they talked to one of the

empl oyees about the service dogs to make sure the dogs could

accompany them inside. The employee opted to call her superior,

Jane Wilcox (no relation to Lois) , to make a determination about

the dogs. Jane Wilcox testified that she approached Bette and

Lois i n the lobby area, i.e., an enclosed area akin to a hotel

lobby, which housed the ticket windows. Bette and Lois said

they were never inside a building at HLE; rather, the

discussions that occurred happened outside on the sidewalk area.

It seems most like ly from the evidence that the conversation

commenced inside the lobby and then continued outside.

6. Jane Wilcox did a cursory examination of the dogs and

decided they did not appear to be service dogs. She also

determined that the dogs appeared to be "f risky" in nature and

were not like other service dogs she had seen. It was her

practice to make a determination as to whether an animal was a

service animal or not by asking reasonable questions. This is

the way she handles each of the 100 or so cases a year in which

guests show up with animals.

7. Jane Wilcox has not had any formal training from the

Commission or other regulatory entity regarding service dogs.

She was given on - the - job training by her predecessor and has

studied written materials on t he subject. Her experience in

this area is somewhat extensive during her three and a - half year

tenure at HLE.

8. After Jane Wilcox made an initial visual determination

that the dogs appeared to be pets, Bette attempted to advise her

that the dogs were ce rtified and had certification documents on

the capes they were wearing. Bette and James had taken the dogs

into numerous other businesses and had been asked many times for

proof of the dogs' certification. Thus, they kept the

certification documents on t he dogs at all times.

9. Jane Wilcox refused to look at the certification

documents because she has been provided bogus certification

documents on occasion. That being the case, she did not put any

stock in documents that were presented to her by guests.

Rather, it was her normal practice to ask questions of the

owners and to visually examine the animals. Based on the

answers and her observation, Jane Wilcox would come to a

conclusion about the animal in question.

10. The discussion between Jane Wilcox and Bette became

somewhat heated once Jane Wilcox made her initial determination

about the dogs. Bette was talking loudly, but she is prone to

do that because of her hearing impairment. Jane Wilcox viewed

Bette as being very excited and possibly offended by the refusal

to admit the dogs into HLE. After a few moments, Jane Wilcox

determined that communication with Bette had broken down to the

point that further conversation was useless. At that point, she

called for security assistance. 1/ It appears tha t the matter

could have been resolved to everyone's satisfaction had the

conversation not degenerated into a contentious debate between

the parties. However, it is impossible to ascertain from the

facts submitted whether one party o r the other was more

re sponsible for the verbal melee. Therefore , no finding can be

made as to that point.

11. The security officer who arrived took Bette and Lois

to his small security building, where they were joined by James.

The security officer said that Jane Wilcox was w ithin her rights

to refuse their admission into HLE with the service dogs. He

advised them that there was a facility nearby that would care

for the dogs while the guests were at HLE.

12. The security officer allegedly told the Gantzes that

HLE was a pri vate facility and not subject to federal or state

law regarding disabled persons. He also supposedly said that

HLE considers dogs like those belonging to the Gantzes as pets ,

rather than service animals. According to Bette, this "colored"

security office r would not listen to her or allow her to talk.

A Caucasian guard, however, allegedly told Bette that maybe the

dogs should be allowed into HLE , but he was overruled by the

first guard.

13. The Gantzes then asked the security officer to call

the local (Or lando) police, which he did. When the police

officer arrived, he advised the Gantzes that he could not force

HLE to admit the dogs, but that he would write up a report. The

report written by the police officer indicates that "security

officer Santis" cal led in the request for assistance. It is not

clear from the evidence at final hearing which of the two

aforementioned security officers was Santis. The incident

narrative in the police report simply states:

Contact was made with all parties. 'Gantz'

wer e acc[ompanied] by certified service dogs

for hearing along with proper documentation.

Upon Mngt request to leave, did so without

incident.

14. The Gantzes and Lois Wilcox opted not to board the

dogs at the nearby facility. Rather, they left HLE and,

ul timately, filed a complaint against Zion's Hope with the

Commission.

15. HLE does have a policy of admitting service animals

inside the attraction. However, as a private religious

facility, it does not believe that it has to do so, i.e., it

does not belie ve it is governed by the Americans with

Disabilities Act. Of the 100 or so service animals appearing

for admission each year, about 70 percent of them are admitted.

The others are boarded or the owners opt not to enter HLE.

16. HLE does have a strict pol icy disallowing pets from

admission to the park. Inasmuch as Jane Wilcox found the

animals with the Gantzes to be pets, they were denied admission

on that basis.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the part ies to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes (2010). 2/

18. Sections 760.01 through 760.11 and 509.092, Florida

Statutes, comprise the "Florida Civil Rights Act of 1992" (the

"Act"). The gene ral purpose of the Act is to provide all

citizens of this State freedom from discrimination based on

race, color, religion, sex, national origin, age, handicap, or

marital status. The Act is intended to incorporate the

accessibility requirements of the Am ericans With Disabilities

Act of 1990, 42 U.S.C. Section 12101, et seq. (the "ADA").

19. Under the Act, persons with disabilities are protected

from discrimination in public accommodations. Public

accommodations means "places of public accommodation, lodg ings,

facilities, principally engaged in selling food for consumption

on the premises, gasoline stations, places of exhibition or

entertainment, and other covered establishments . . . ." The

Act's definition of public accommodations is consistent with the

ADA. The ADA removed from its coverage, among others, private

clubs or religious organizations (or entities controlled by

religious organizations, including places of worship). See

42 U.S.C. § 12187. Florida Americans With Disabilities

Accessibility Im plementation Act, s ections 553.501 through

553.513, Florida Statutes (the "Implementation Act") , removes

the exemption for private clubs , but does not remove the

exemption for religious organizations. However, the exemption

set forth in the Exemption Act relates specifically to

construction of facilities in accordance with ADA and the Act.

It does not address or relate to denial of access to a public

accommodation by the operators of the business. Thus, contrary

to HLE's argument, there is no exemption f rom the Act for

religious organizations or the businesses they operate.

20. The Department of Justice has implemented regulations

to implement Title III of the ADA which prohibits discrimination

in places of public accommodation. 28 C.F.R. § 36.101. In t he

implementing regulations, "religious entity" is defined as a

religious organization or entity controlled by a religious

organization, including a place of worship. As stated in

28 C.F.R. section 36, Appendix B, under "Religious Entity,"

The ADA's exemp tion of religious

organizations and religious entities is very

broad, encompassing a wide variety of

situations. Religious entities . . . have

no obligations under the ADA. Even when a

religious organization carries out

activities that would otherwise ma ke it a

public accommodation, the religious

organization is exempt from ADA

coverage. . . The religious entity would

not lose its exemption merely because the

services provided were open to the general

public. The test is whether the church or

other reli gious organization operates the

public accommodation, not which individuals

receive the public accommodation's services.

21. Even though the A DA does not appear to apply to HLE,

there is no religious exemption set forth in the Act . There is

little guida nce in the Act, however, relating to individuals

requiring a hearing ear dog as a service animal. The Vocational

R ehabilitation statutes ( c hapter 413 , Florida Statutes ), do

provide some helpful definitions.

22. Section 413.08 reads in pertinent part:

(1 )(b) "Individual with a disability"

means a person who is deaf, hard of hearing,

blind, visually impaired, or otherwise

physically disabled. As used in this

paragraph, the term:

1. "Hard of hearing" means an individual

who has suffered a permanent he aring

impairment that is severe enough to

necessitate the use of amplification devises

to discriminate speech sounds in verbal

communication.

* * *

(c) "Public accommodation" means a common

carrier, airplane, motor vehicle, railroad

train, motor b us, streetcar, boat, or other

public conveyance or mode of transportation;

hotel; lodging place; place of public

accommodation, amusement, or resort; and

other places to which the general public is

invited, subject only to the conditions and

limitations es tablished by law and

applicable to all persons.

(d) "Service animal" means an animal that

is trained to perform tasks for an

individual with a disability. The tasks may

include, but are not limited to, guiding a

person who is visually impaired or blin d,

alerting a person who is deaf or hard of

hearing, pulling a wheelchair, assisting

with mobility or balance, alerting and

protecting a person who is having a seizure,

retrieving objects, or performing other

special tasks. A service animal is not a

pet.

* * *

(3) An individual with a disability has

the right to be accompanied by a service

animal in all areas of a public

accommodation that the public or customers

are normally permitted to occupy.

(a) Documentation that the service animal

is tr ained is not a precondition for

providing service to an individual

accompanied by a service animal. A public

accommodation may ask if an animal is a

service animal or what tasks the animal has

been trained to perform in order to

determine the difference b etween a service

animal and a pet. . . .

23. Both James and Bette Gantz are physically disabled as

defined above. It is quite possible that the dogs they

attempted to get into HLE were service dogs ; however, there was

no persuasive proof of that fact pre sented at final hearing in

this matter. Petitioners stated repeatedly that the dogs were

certified and had been trained, but presented no documentation

to support their assertion; nor did Petitioners present the

certification documents which they attempte d to present to HLE

on the day in issue. However, an analysis under the Act will be

undertaken as if the fact had been proven.

24. Petitioners would have the initial burden of proving

by a preponderance of the evidence that HLE violated their

rights by re fusing to allow their dogs into HLE as alleged in

their complaint to the Commission. § 120.57(1)(j ) .

25. The United States Supreme Court has established an

analytical framework within which courts should examine claims

of discrimination. In cases allegin g discriminatory treatment,

Petitioners have the initial burden of establishing, by a

preponderance of the evidence, a prima facie case. St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1993); Combs v. Plantation

Patterns , 106 F . 3d 1519 (11th Cir. 1997). A prima facie showing

of discrimination simply requires Petitioners to show that they

were ready, willing and able to go into HLE and that they are

members of a protected class. See , e.g. , Sheely v. MRI

Radiology Network , 505 F.3d 1173 (11th Cir. 2007); S oules v.

U .S. Dep 't of Hous . & Urban Dev . , 967 F.2d 817, 822 (2d Cir.

1992) ( a housing discrimination case , but with the same kind of

shifting burden requirements set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973 ) , utilized in Florida cases

under the Act . As hearing impaired persons, the Gantzes are

members of a protected class who were not allowed into a public

accommodation . Petitioners established their prima facie case

of discrimination .

26. The burden would then shift to HLE to show th at the

actions they took, refusing to allow the Gantzes' s service dogs

into the park, was not discriminatory , but was based on other

factors. C f . , McDonnell Douglas , 411 U.S. at 800 - 01. It is

HLE's contention that the animals were not allowed into the pa rk

because they appeared to be pets , and pets are specifically

prohibited from admission. Under section 413.08(3)(a), a public

accommodation may inquire as to the animals ' duties or tasks

performed in order to determine if the animal is indee d a

service d og versus a pet. 3/ HLE began to make reasonable inquiry

of the Gantzes for this purpose before communications between

the parties deteriorated. HLE made a determination that the

dogs appeared to be pets , rather than service animals.

27. That being the c ase, the burden would shift back to

Petitioners to prove that HLE's reasons were mere pretext and

that the real reason for its actions was discrimination. There

is insufficient evidence in the record to support that

contention. HLE has a clear policy of allowing service animals

into its park. It has an equally clear policy of prohibiting

pets from admission. Inasmuch as it was reasonably determined

that the Gantzes were accompanied by pets , rather than service

animals, discrimination based on a handicap was not the basis

for denying the Gantzes admission to the park .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the P etitions for

Relief filed by James Gantz and Bette Gantz in their entirety.

DONE AND ENT ERED this 31st day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of A dministrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of March , 2011 .

ENDNOTE S

1/ Bette Gantz was somewhat excitable in nature at the final

hearing. During Jane Wilcox' s testimony, Bette was muttering

comments which were audible to others in attendance. When asked

to refrain, Bette said that she was just talking to her self and

didn't mean others to hear her comments.

2/ All statutory references are to Florida Statutes (20 10 ),

unless otherwise noted.

3/ Counsel for HLE argued at final hearing that section

413.08(3)(a) means that HLE did not have to consider the

Gantz es's documentation for their dogs. His interpretation is

in error. The statute only says that having documentation is

not a prerequisite to admission to the park.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

20 09 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

James Gantz

Bette Gantz

115 Beauregard Lane

Ellijay, Georgia 3 0540

James Gantz

Bette Gantz

4051 Heyward Street

North Port, Florida 34291 - 4530

John B. Casoria, Esquire

Law Office of John B. Casoria

23741 Via Roble

Coto De Caza, California 92679 - 4010

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the righ t 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.