11-002269 Mildred R. Smith vs. Just 1 More Bar And Grill Status: Closed Recommended Order on Monday, August 8, 2011.

Summary: Petitioner did not meet burden of proof in discrimination claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILDRED R. SMITH , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2269

)

JUST 1 MORE BAR AND GRILL , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case on July 20, 20 1 1 , in Lakeland, Florida,

before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mildred R. Smith, pro se

Post Office Box 4158

Lake Wales, Florida 33859

For Respondent: Robert H. Grizzard, II, Esquire

Robert H. Grizzard, II, P.A.

Post Office Box 992

Lake Wales, Florida 33802 - 0992

STATEMENT OF THE ISSUE

The issue in this case is wh ether Respondent, Just 1 More

Bar and Grill (hereinafter the "Bar"), discriminated against

Petitioner, Mildred R. Smith, by refusing her entry into the Bar

due to her race, African - American.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations ( the

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

of Administrative Hearings on May 5, 2011. The Transmittal

contained a Petition for Relief filed by Petitioner. The

Commission had previously made a determination that cause

existed unde r the allegations set forth in the Petitions. The

Commission did not appear at the final hearing.

At the final hearing, Petitioner testified on her own

behalf. Petitioner did not offer any exhibits into evidence.

The Bar called five witnesses: Barry Ja ckson, Jake Asberry,

Lavelle White, Kerry Winkler, and Juana Winkler. The Bar

offered two exhibits into evidence, which were received without

objection.

The final hearing was taped by the presiding officer on a

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

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

final hearing to submit proposed recommended orders. Petitioner

and Respondent each submitted a post - hearing submission. Each

was duly considered in the preparation of this Re commended

Order.

FINDINGS OF FACT

1. Petitioner is an African - American woman.

2. The Bar is a Florida sole proprietorship which operates

as an establishment selling alcohol for consumption on the

premises. Despite its name, there is no grill or food ser vice

at the Bar. The Bar is owned by Kerry Winkler, a Caucasian

male.

3. On or about May 8, 2011, Petitioner was going to meet a

male friend at an establishment across the street from the Bar.

Petitioner could not remember the exact date, but thought it was

in April or May. Petitioner was accompanied by a female friend.

Petitioner and her female friend had just left church , and it

was approximately three or four o'clock on a Sunday afternoon.

4. Upon arrival at the male friend's establishment, no one

was there. Petitioner decided to go into the Bar to have a beer

while she waited. Her companion did not join her.

5. Petitioner recounts that as she started to enter the

Bar, a man stood in the doorway, held out his hand, and said,

"You can't come in he re." Nothing more was said. The man was a

large white man and wearing a "biker's jacket" with a rag on his

head. He had a large mustache.

6. Petitioner says that she could see into the Bar and

that all the patrons in the Bar were white. She turned aro und

and walked back to her car. As she crossed the parking lot, a

man sitting on a motorcycle said, "Man, that was quick."

7. Petitioner concluded that she had been discriminated

against because of her race. She believed she had been denied

admission to the Bar because she is African - American. She filed

a complaint with the Florida Commission on Human Relations about

the incident. In her verified complaint, Petitioner said that

she "was met by a white female (Kerry Winkler) who told me I

could not ente r the building and that I was not welcome there."

8. Under oath at the final hearing, Petitioner said that

she could not explain her verified statement to the Commission ,

because she remembers being met by a large white male, not a

woman. She did not kno w why the name Kerry Winkler was in her

signed statement. Kerry Winkler, the owner of the Bar, is , in

fact , a Caucasian male. At the final hearing, Petitioner was

introduced to Kerry Winkler; she said he was not the man who met

her at the door of the Bar .

9. No one associated with the Bar knows who the man was

that Petitioner met at the front door. There are no employees

fitting his description and neither the owner , no r patrons at

the Bar , recognize d the person Petitioner described.

10. Several regular patrons of the Bar testified at final

hearing. Each of them was an African - American male. Each

affirmed the Bar's open policy of allowing all people to come

into the Bar. None of them had ever witnessed any

discriminatory behavior at the Bar, especiall y by the owner who

they all knew and respected.

11. Neither the owner , nor his wife (who was likely

operating the Bar on the day in question) , could identify the

person that Petitioner described. No one by that description is

an employee or otherwise affi liated with the Bar.

12. Neither the owner , nor his wife , was aware that

Petitioner had allegedly been denied admission into the Bar

until several months after the fact. They received notice of

the allegation from the Commission well after the fact.

13 . Petitioner did not contact the Bar after the fact to

make a complaint or report the alleged incident.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant t o sections 120.569 and 120.57(1), Florida

Statutes (2010). All references to Florida Statutes herein

shall be to the 2010 codification.

15. The Florida Civil Rights Act of 1992 (the "Act") is

codified in sections 760.01 through 760.11 and 509.092, Florida

Statutes. The Act is modeled after Title VII of the Civil

Rights Act of 1964, 42 U.S.C. s ection 2000, et seq . Therefore,

case law interpreting Title VII is also relevant to cases

brought under the Act. Fla . Dep't of Cmty . Aff. v. Bryant , 586

So. 2d 120 5, 1209 (Fla. 1st DCA 1991).

16. Section 760.08 states:

Discrimination in places of public

accommodation . All persons shall be

entitled to the full and equal enjoyment of

the goods, services, facilities, privileges,

advantages, and accommodations of an y 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.

17. Public accommodations are generally described as

hotels, inn s, restaurants, motion picture theaters, concert

halls, stadiums, etc. The Act would apply to the Bar, a place

of public accommodation. Petitioner is an African - American

female and , thus , a member of a protected class.

18. In a discrimination case, the p etitioner has the

initial burden of establishing a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). If the petitioner

proves a prima facie case of discrimination, the burden shif ts

to the respondent to proffer a legitimate, non - discriminatory

reason for the action it took. Texas Dep't of Cmty . Aff. v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

The respondent's burden is one of production, not persuasion.

T he burden then shifts back to the petitioner to prove that the

proffered reason is pretext and that the respondent

intentionally discriminated against the petitioner. Id. at

252 - 256.

19. Petitioner has the initial burden of proving by a

preponderance of t he evidence that the Bar violated her rights

by refusing to allow her admission into the Bar because of her

race. This is what Petitioner alleged in her complaint to the

Commission. §§ 120.57(1)(j) and 760.34(5) .

20. A prima facie showing of discriminati on simply

requires Petitioner to show that: (1) she is a member of a

protected class; ( 2) she attempted to enjoy the services of a

public accommodation; (3) she was denied those services; and

( 4) such services remained available to similarly - situated

pers ons outside the protected class. See , e.g. , Wells v. Burger

King Corp. , 40 F. Supp. 2d 1366 ( N.D. Fla. 1998).

21. While Petitioner did prove she is a member of a

protected class and that she wished to enjoy the services

offered by the Bar, she could not establish the remaining

elements of a prima facie case. There is no credible,

persuasive evidence that the Bar denied her entry or that other

persons outside the protected class , who attempted to go into

the Bar , were allowed.

22. Failure to establish a p rima facie case will require

entry of a decision in favor of Respondent . Earley v. Champion

Int'l Corp. , 907 F.2d 1077 (11th Cir. 1990).

23. If Petitioner had established a prima facie case, the

burden would then shift to the Bar to show that the actions it

took w ere not discriminatory , but w ere based on other factors.

However, inasmuch as the Bar was unaware of Petitioner's claim

that she was denied admission and there is no evidence that the

person who allegedly denied her admission is affiliated with t he

Bar, it is impossible for the Bar to defend its actions. As

stated in Earley , infra , at 1081, "To a large extent, of course,

the strength or weakness of the inference of discrimination

created by the [Petitioner 's ] prima facie case defines the

nature o f the [Respondent's] rebuttal." (citing Meiri v. Dacon ,

759 F.2d 989, 997 (2d. Cir. 1985) ) .

24. Under the shifting burden analysis, Petitioner would

then have to provide evidence as to why the Bar's reasons were

mere pretext and that the real reason for i ts actions was

discrimination. Petitioner provided no evidence that would

apply to that element of the analysis.

25. The Bar, in its defense of Petitioner's allegations,

provided the testimony of several African - American patrons as to

the non - discrimina tory atmosphere at the Bar. Although such

testimony does not directly address Petitioner's claim of

discrimination on the day in question, it is relevant to show

that the Bar and its owner were not known to practice

discrimination and , thus , would not hav e been likely to

discriminate against Petitioner. See , e.g. , McCuller v. Gaudry ,

650 P.2d 148 ( Or. Ct. App. 1982)(A bar's past practice of

discrimination was admissible to help establish its intent to

practice racial discrimination.) .

26. There is no pers uasive evidence that Petitioner was

discriminated against by the Bar or anyone affiliated with the

Bar. Petitioner failed to prove her claim.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final o rder be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

filed by Mildred R. Smith in its entirety.

DONE AND ENT ERED this 8th day of August , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative 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

Divi sion of Administrative Hearings

this 8th day of August , 2011 .

COPIES FURNISHED :

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Comm ission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mildred R. Smith

Post Office Box 4158

Lake Wales, Florida 33859

Robert H. Grizzard, II, Esquire

Robert H. Grizzard, II, P.A.

Post Office Box 992

Lakeland, Florida 3 3802 - 0992

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.