11-003373 Maura Mena vs. Lifemark Hospitals Of Florida, Inc., D/B/A Palmetto General Hospital Status: Closed Recommended Order on Tuesday, February 21, 2012.

Summary: Respondent's hospital is a "public accommodation," within the meaning of section 760.02(11)(d), over which FCHR has jurisdiction, inasmuch as the hospital has on its premises a cafeteria whose patrons the hospital holds itself out as serving.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAURA MENA, )

)

Petitioner, )

)

vs. ) Case No. 11 - 3373

)

LIFEMARK HOSPITALS OF FLORIDA, )

INC., d/b/a PALMETTO GENERAL )

HOSPITAL, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, an evidentiary hearing was conducted in

this case in accordance with Mena v. Lifemark Hospitals, Inc. ,

50 So.3d 759 (Fla. 1st DCA 2010), as directed by the First

District Court of Appeal (First District) in First District Case

No. 1D11 - 1217, before Stuart M. Lerner, a duly - designated

administrative law judge of the Division of Administrative

Hearings (DOAH), on December 6, 2011 , by video teleconference at

sites in Miami and Tallahassee, Florida.

APPEARANCES

For Pet itioner: Matthew W Dietz, Esquire

Law Of fices of Matthew W. Dietz, P.L.

2990 Southwest 35th Avenue

Miami, Florida 33133

For Respondent: Martin B. Goldberg, Esquire

Lorelei J. Van We y, Esquire

Lash and Goldberg, LLP

100 Southeast 2nd Street, Suite 1200

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether the hospital at which Petitioner was allegedly

denied sign - language services in violation of the Florida Civil

Rights Act of 1992 (Florida Act) according to the complaint she

filed with the Florida Commission on Human Relation (Commission)

"'holds itself out as serving patrons' of the ca f eteria located

on its premises, " thus making the hospital a "public

accommodation, " within the meaning of section 760.02(11)(d),

Florida Statutes, and giving the Commission jurisdiction to

conduct an investigation of Petitioner's complaint pursuant to

sect ion 760.11(3), Florida Statutes, to determine whether there

is reasonable cause to believe that " the [h] ospital's alleged

denial of sign - language services . . . constituted

discrimination as defined by the [Florida] Act " in section

760.08, Florida Statutes .

PRELIMINARY STATEMENT

On November 2, 2009, Petitioner filed with the Commissi on a

public accommodation discrimination complaint (Complaint) in

which she claimed that Respondent discriminated against her

based on her deafness, in violation of "[c]hapters 509 and 760,

Florida Statutes, and/or Title VII of the Federal Civil Rights

Act of 1964, and/or the Americans with Disabilities Act," when

during her hospitalization at Respondent's Palmetto General

Hospital (Hospital) from April 14 through 17, 2009, "[o]n

various occasions, [she] asked for a certified American Sign

Language interpreter but was denied [this requested

accommodation]." By letter dated January 11, 2010, from its

Executive Director, the Commission advised Petitioner, through

her counsel, that it had "conclude[d] that a hospital is not a

'place of public accommodation' under the Florida Civil Rights

Act" and that it was thus dismissing, on jurisdictional grounds,

her complaint without conducting an investigation. The letter

indicated "[t]he [Co mmissio n's] refusal of [Petitioner's]

[C] omplaint constitute[d] final agency action" and therefore

Respondent "ha[d] the right to seek judicial review of this

decision." 1 /

Petitioner appealed the Commission's "refusal of [her]

[C] omplaint" to th e First District, which, in an opinion issued

in First District Case No. 1D10 - 100 on December 28, 2010, and

reported at Mena v. Lifemark Hosps. of Fla., Inc. , 50 So. 3d 759

(Fla. 1st DCA 2010) (hereinafter referred to as Mena I ) ,

reversed the Commission's "refusal of [Petitioner's]

[C] omplaint " and remanded the matter to the Commission, giving

the following explanation and instructions:

Section 760.01(2), Florida Statutes,

explains that the "general purposes" of the

[Florida] Act are to

secure for all ind ividuals within the

state freedom from discrimination because

of race, color, religion, sex, national

origin, age, handicap, or marital status

and thereby to protect their interest in

personal dignity, to make available to

the state their full productive

c apacities, to secure the state against

domestic strife and unrest, to preserve

the public safety, health, and general

welfare, and to promote the interests,

rights, and privileges of individuals

within the state.

The [Florida] Act includes protections fro m

discrimination in "public accommodations,"

as described in section 760.08, Florida

Statutes:

All persons shall be entitled to the full

and equal enjoyment of the goods,

services, facilities, privileges,

advantages, and accommodations of any

place of pub lic accommodation, as defined

in this chapter, without discrimination

or segregation on the ground of race,

color, national origin, sex, handicap,

familial status, or religion.

Section 760.02(11) defines "public

accommodations" as "places of public

accomm odation, lodgings, facilities

principally engaged in selling food for

consumption on the premises, gasoline

stations, places of exhibition or

entertainment, and other covered

establishments." Appellant concedes that

hospitals are not included in the statu tory

definition of public accommodations.

Appellant contends, however, that pursuant

to section 760.02(11)(d), where a hospital

has a cafeteria on its premises, the

hospital derivatively becomes a public

accommodation. Section 760.02(11) defines

as a pub lic accommodation:

(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

itse lf out as serving patrons of such

covered establishment.

Thus, a n establishment may be transformed

into a public accommodation for the

[Florida] Act's purposes if: 1) it is an

establishment located on the premises of an

otherwise covered establishment; or 2) a

covered establishment is on the premises of

an otherwise u ncovered establishment, so

long as the latter establishment holds

itself out as serving patrons of the covered

establishment. Appellant relies on the

second of these, contending the cafeteria,

which does fall within the ambit of the

[Florida] Act's defini tion of public

accommodation, transformed the Hospital into

a public accommodation.

We think whether an otherwise uncovered

establishment "holds itself out as serving

patrons" of a covered establishment is a

question of fact. See , e.g. , Regency Towers

Owners Ass'n, Inc. v. Pettigrew , 436 So. 2d

266, 267 (Fla. 1st DCA 1983)(discussing

hearing officer's findings of fact as to the

number of "employees" as defined by the

previous version of the [Florida] Act were

employed by appellant). The Commission

reached a summary conclusion that "[a]

hospital offers its medical services to the

public and provides meals for its patients,

staff and visitors; however, the facility is

not 'principally engaged in selling food for

consumption on the premises. '" Based on

this conclusion, the Commission determined

that hospital cafeterias are not "a

destination dining establishment," but a

"business necessity, which does not

transform the hospital into a place of

public accommodation." It is not clear how

the Commission reached this result

considering that it did not endeavor to

conduct any fact finding and did not even

solicit any input from the Hospital itself.

In addition to being unsupported by any

record evidence, the Commission's finding

does not address the critical question of

whether the Hospital establishment "holds

itself out as serving patrons" of the

cafeteria located on its premises.

Consequently, we must remand this case for

the Commission to make the necessary fact

findings. On remand, should the Commission

determine that the Hospital is in fact a

public accommodation, it must then determine

whether Appellant has stated a claim

cognizable under the Act and explain the

grounds for its determination of that

question. Only then will this matter b e

ready for appellate review.

On February 2, 2011, the Commission, through its General

Counsel, filed with the First District a Response to Order on

Remand (Commission's Response) , in which it "reaffirm[ed] its

conclusion that it did not have jurisdiction over [Petitioner's]

complaint" inasmuch as the Hospital "is not, as a matter of law,

a place of public accommodation."

On March 7, 2011, Petitioner filed a Notice of Appeal with

the First District , seeking review of the Commission's Response.

The " appeal " was docketed by the First District Clerk as First

District Case No. 1D11 - 1217 . It was subsequently " redesignated

[by the First District] as invoking the Court' s jurisdiction to

review nonfinal administrative agency action. "

On July 11, 2011, the First D istrict issued an Order in

First District Case No. 1D11 - 1217 , which provided , in pertinent

part, as follows:

On this Court's own motion, jurisdiction is

relinquished to the Florida Commission on

Human Relations for 60 days from the date of

this order with directions that 1) the

Commission refer this matter to the Division

of Administrative Hearings (DOAH) for an

evidentiary hearing in accordance with Mena

v. Lifemark Hospitals, Inc. , 50 So. 3d 759

(Fla. 1st DCA 2010), and 2) the Commission

enter a final ord er after considering the

recommended order issued by DOAH in

accordance with section 120.57(1), Florida

Statutes. Counsel for appellant shall file

a status report with this court prior to the

end of the period of relinquishment of

jurisdiction.

That same day (July 11, 2011), the Commission referred the

instant matter to DOAH to conduct the "evidentiary hearing"

ordered by the First District. The DOAH Clerk docketed the case

as DOAH Case No. 11 - 3373. By Notice of Hearing by Video

Teleconference, the evid entiary hearing in DOAH Case No. 11 - 3373

was set for September 27 and 28, 2011. 2 / The Notice of Hearing

contained the following "issue" statement: "As stated in Mena

v. Lifemark Hospitals, Inc. , 50 So. 3d 759 (Fla. 1st DCA 2010)."

On July 28, 2011, Respondent filed a Motion for

Clarification in First District Case No. 1D11 - 1217 , requesting

that the First District clarify that the scope of the

"evidentiary hearing" it ordered in its July 11, 2011, Order was

limited to "the threshold inquiry into whether [the Commission]

has jurisdiction over [Petitioner's] complaint." On or about

August 5, 2011, Petitioner filed a Response to Respondent's

Motion for Clarification, urging the First District to deny the

motion.

On August 12, 2011, Resp ondent filed in DOAH Case No.

11 - 3373 a Motion for Stay of Proceeding or Alternatively for

Stay of Discovery and Proceeding Related to the Complaint

( Respondent's August 12, 2011, Motion ), requesting the following

relief:

(1) a stay of this proceeding un til

resolution of the Motion for Clarification

pending before the First DCA regarding the

scope of the evidentiary hearing;

(2) alternatively, a stay of discovery

(Nos. 1 - 22 of the Request to Hospital and

Nos. 1 - 2 of the Subpoena to Accessible) and

any p roceeding related to the Petitioner

Maura Mena's discrimination complaint until

resolution of the question of whether the

Florida Commission on Human Relations has

jurisdiction under the Florida Civil Rights

Act to investigate Mena's complaint.

* * *

(4) for such other relief as the ALJ

determines is just and proper.

On August 16, 2011, Petitioner filed a Response to Respondent's

Motion for Stay , asking that the undersigned deny the relief

requested in Respondent's August 12, 2011, Motion.

On August 18, 2011, the undersigned issued an Order on

Respondent's August 12, 2011, Motion , which provided, in

pertinent part, as follows:

Reading the First District's December 28,

2010, opinion and its July 11, 2011, Order,

together with [the] provisions of section

760.11 (which prescribe the procedures for

the filing and handling of public

accommodation discrimination complaints),

the under signed is of the view that it is

his task in the instant case to conduct an

evidentiary hearing, and issue a recommended

order, only on the jurisdictional issue

addressed by the First District: whether

"the Hospital is in fact a public

accommodation," wit hin the meaning of

section 760.02(11)(d). . . .

The Commission has yet to investigate the

merits of Petitioner's Complaint and make a

"reasonable cause" determination (a factor

(1) which distinguishes the instant case

from the cases cited by Petitioner on page 3

of her Response, wherein "ALJs have decided

both the jurisdictional and substantive

issues in one proceeding," and (2) which

renders the provisions of subsection (7) of

section 760.11, cited by Petitioner on page

2 of its Response, inapplicable to the

instant case). If the outcome of the

section 120.57(1) proceedings ordered by the

First District is a determination that "the

Hospital is in fact a public accommodation,"

within the meaning of section 760.02(11)(d)

(and if that determination is not di sturbed

by the First District, which has only

temporarily relinquished jurisdiction for

the conducting of such proceedings), the

Commission will then be obligated to conduct

such an investigation. § 760.11(3). If,

based on its investigation, the Commissi on

determines that there is not reasonable

cause to believe that Respondent committed

the violation alleged in the Complaint,

Petitioner will have the opportunity to have

a section 120.57(1) hearing before an

administrative law judge on the merits of

her C omplaint, provided she requests such a

hearing within 35 days of the Commission's

determination. § 760.11(7). If, on the

other hand, the Commission determines that

there is reasonable cause to believe that

Respondent committed the violation alleged

in th e Complaint, Petitioner will have the

opportunity to choose between the following

two mutually exclusive procedural options

set forth in subsection (4) of section

760.11:

(a) Bring a civil action against the

person named in the complaint in any

court of competent jurisdiction; or

(b) Request an administrative hearing

under ss. 120.569 and 120.57.

Petitioner will not, however, have to wait

until the Commission concludes its

investigation and makes a "reasonable cause"

determination to "bring a civil act ion" or

"request an administrative hearing" on the

merits of her Complaint, given subsection

(8) of section 760.11, which provides as

follows:

In the event that the commission fails

to conciliate or determine whether

there is reasonable cause on any

compl aint under this section within

180 days of the filing of the

complaint, an aggrieved person may

proceed under subsection (4), as if

the commission determined that there

was reasonable cause.

Inasmuch as 180 days have already passed

since Petitioner first filed her Complaint

with the Commission on November 2, 2009, if

the jurisdictional issue is decided in her

favor, she can, immediately after such

decision is made, "proceed under subsection

(4), as if the [C]omission [had] determined

that there was reasona ble cause," provided

that, at that time, four years have not

passed since the alleged violation. See

Joshua v. City of Gainesville , 768 So. 2d

432, 433 (Fla. 2000)("[T]he general four -

year statute of limitations for statutory

violations, section 95.11(3)( f), Florida

Statutes (1995), applies to actions filed

pursuant to chapter 760, Florida Statutes,

if the Commission on Human Relations does

not make a reasonable cause determination on

a complaint within the 180 days contemplated

by section 760.11(8), Flori da Statutes

(1995) ." ); Woodham v. Blue Cross & Blue

Shield of Fla. , 829 So. 2d 891, 899 (Fla.

2002)("Reading the relevant provisions of

the statute together clearly establishes

that whenever the FCHR fails to make its

determination within 180 days, even if the

untimely determination is made before the

filing of a lawsuit, the claimant may

proceed to file a lawsuit under subsection

(4)."); and Ross v. Jim Adams Ford, Inc. ,

871 So. 2d 312, 315 - 16 (Fla. 2d DCA

2004)("[T]here are many complaints that are

not pr ocessed within 180 days by the

Commission. As to those complaints, the

supreme court has held that the four - year

statute of limitations i n section

95.11(3)(f) applies. However, the supreme

court did not expressly state when the four -

year period commenced or whether it was

tolled by the administrative process. . . .

[W]e hold that Mr. Ross's claim for a

violation of the Florida Civil Rights Act

accrued on the date of his alleged wrongful

termination and that the running of the

four - year statute of limitat ion in section

95.11(3) was not tolled while Mr. Ross

pursued his administrative complaint with

the Commission.").

Turning now to the relief requested by

Respondent in its Motion, it is hereby

ORDERED:

1. Respondent's request for "a stay of this

proceeding until resolution of the Motion

for Clarification pending before the First

DCA regarding the scope of the evidentiary

hearing" is denied. The undersigned does

not need such clarification to determine the

"proper scope of the evidentiary hearing"

that is to be conducted in this case.

2. Because the "evidentiary hearing" before

the undersigned will be limited to the

jurisdictional issue addressed by the First

District and there will be no proceedings

before the undersigned during the

relinquishme nt period concerning the merits

of Petitioner's complaint, [ 3 / ] the discovery

sought by Petitioner in her Requests to

Produce Nos. 1 through 22 to Respondent and

her Requests 1 and 2 in the Attachment to

Subpoena Duces Tecum to Accessible

Communications for the Deaf (which relate to

the merits of Petitioner's Complaint) shall

not be had.

The same day that the undersigned issued this Order ( August 18,

2011 ) , Respondent filed a Notice of Withdrawal of it s Motion for

Clarification in First District Case No. 1D11 - 1217.

As noted above, the "evidentiary hearing " ordered by the

First District in its July 11, 2011, Order issued in First

District Case No. 1D11 - 1217 was held before the undersigned on

December 6, 2 011 . Two witnesses ( Tim Zuk and Georgina D iaz )

testified at the hearing. In addition, a total of 14 exhibits

( Petitioner's Exhibits 1 through 5, and Respondent's Exhibits 1

through 9 ) were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the

undersigned, on the record, set a January 30 , 20 12 , deadline for

the filing of proposed recommended orders on the jurisdictional

issue before the undersigned .

The transcript of the final hearing was filed on

January 17, 2012.

On January 30, 2012, Petitioner and Respon dent timely filed

their Proposed Recommended Orders.

FINDINGS OF FACT

1. Respondent owns and operates Palmetto General Hospital

(Hospital) , a private 4 / general acute care hospital 5 / located at

2001 West 68th Street, Hialeah, Florida 33016 , 6 / which has an

average daily census of 282 patients 7 / ; 1,400 filled full - time

equivalent positions; and a total of 588 physicians on its

medical staff ( 254 of whom are "active"). It markets the

Hospital as "providing quality and personalized medical care t o

the communities [it] serve[s]."

2. The Hospital has an emergency room (offering emergency

care and services), which is accessible to the public (through

two entrance s -- an "ambulatory entrance " and an "ambulance

entrance" ) 24 hours a day, seven days a week (24/7) . The

emergency room is a key point of public access to the Hospital

and the medical care the Hospital provides . It is the third

busiest emergency room (in terms of patient volume) in

Miami - Dade County.

3. There are two other public entrance s to the Hospital ,

each of which is open from 6:00 a.m. to 8:00 p.m. and provides

unscreened public access to the Hospital 8 / -- the main entrance ,

and a side entrance leading from the "medical mall" which

adjoins the Hospital. During the hours that these two public

entrances are closed, visitors may gain access to other areas of

the Hospital , aside from the emergency room ( to which the public

has 24/7 access) , only by receiving clearance from the Hospital

security personnel stat ioned at the doorway leading from the

emergency room to the rest of the Hospital.

4. Inside the Hospital 's main entrance is a lobby (Main

Lobby) containing public waiting areas (equipped with chairs,

small tables, and televisions), as well as an Information Desk

manned by non - security personnel who provide informational

assistance to those Hospital visitors seeking their help.

5. Respondent operates the Hospital under a license ,

issued by the Agency for He alth Care Administration (ACHA)

pursuant to chapter 395, Florida Statutes , which authorizes

Respondent to maintain 360 beds and to provide the following

(and only the following) medical services at the Hospital:

Level 2 Adult Cardiovascular Services;

Primary Stroke Center Services;

Emergency and Acute Inpatient Services in

the following areas : Allergy;

Anesthesiology; Cardiology; Cardiovascular

Surgery; Colon and Rectal Surgery;

Dermatology; Emergency Medicine ;

Endocrinology ; Family Medicine ;

Gastroenterology ; General Surgery ;

Ge riatrics ; Gynecology ; Hematology ;

Hyperbaric Oxygen ; Immunology ; Infectious

Diseases ; Internal Medicine ; Nephrology ;

Neurology ; Neurosurgery ; Obstetrics ;

Oncology ; Ophthalmology ; Orthopedics ;

Otolaryngology ; Pediatrics ; Plastic Surgery ;

Podiatry ; Psychiatry ; Pulmonary Medicine ;

Radiology ; Thoracic Surgery ; Urology ; and

Vascular Surgery. [ 9 / ]

6. An order from a physician with admitting privileges is

a prerequisite to receiving these services on an inpatient basis

at the Hospital. Persons without a preexisting relationship

with such a physician may be admitted to the Hospital as an

inpatient if they present to the Hospital's emergency room and

the emergency room physician attending to them orders that they

be hospitalized.

7. In return for having been granted the privilege

(through ACHA licensure) to operate the H ospital and to provide

therein the medical services set forth above , Respondent must

act in accordance with the various Florida statutory and ACHA

rule provisions to which the holders of such license s are

subject. The se provisions include, among others, the following :

§ 395.1041 , Fla. Stat. Access to emergency

services and care . [ 10 / ]

(1) Legislative intent. -- The Legislature

finds and declares it to be of vital

importance that emerge ncy services and care

be provided by hospitals . . . to every

person in need of such care. . . . It is

the intent of the Legislature that [AHCA]

vigorously enforce the ability of persons to

receive all necessary and appropriate

emergency services and care and that [AHCA]

act in a thorough and timely manner against

hospitals . . . which deny persons emergency

services and care.

* * *

(3) Emergency services; discrimination;

liability of facility or health care

personnel.

(a) Every general hospital which has an

emergency department shall provide emergency

services and care for any emergency medical

condition when:

1. Any person requests emergency services

and care; or

2. Emergency services and care are

requested on behalf of a person by:

a. An emergency medical services provider

who is rendering care to or transporting the

person; or

b. Another hospital, when such hospital is

seeking a medically necessary transfer,

except as otherwise provided in this

section.

* * *

(i) Each hospital offering emergency

services shall post, in a conspicuous place

in the emergency service area, a sign

clearly stating a patient's right to

emergency services and care and the service

capability of the hospital.

* * *

(5) Penalties.

(a) [AHCA] may deny, revoke, or suspend a

license or impose an administrative fine,

not to exceed $10,000 per violation, for the

violation of any provision of this section

or rules adopted under this secti on.

§ 768.13, Fla. Stat. Good Samaritan Act;

immunity from civil liability

(2)(b)1. Any health care provider,

including a hospital licensed under chapter

395, providing emergency services

pursuant to obligations imposed by . . .

s. 395.1041 . . . , shall not be held liable

for any civil damages as a result of such

medical care or treatment unless such

damages result from providing, or failing to

provide, medical care or treatment under

circumstances demonstrating a reckless

disregard for the conseque nces so as to

affect the life or health of another.

* * *

4. Every emergency care facility granted

immunity under this paragraph shall accept

and treat all emergency care patients within

the operational capacity of such facilit y

without regard to ability to pay, including

patients transferred from another emergency

care facility or other health care provider

pursuant to Pub. L. No. 99 - 272, s. 9121.

The failure of an emergency care facility to

comply with this subparagraph const itutes

grounds for the department to initiate

disciplinary action against the facility

pursuant to chapter 395.

Fla. Admin . Code Rule 59A - 3.081 Physical

Plant Requirements for General,

Rehabilitation and Psychiatric Hospitals .

(3) The following requir ements shall apply

to the medical, surgical and postpartum

nursing care units. . . .

* * *

(b) Service Areas. Each nursing care unit

shall contain the following service areas.

1. There shall be a nurse station for

charting b y the nurses and doctors, for

communication and for storage of

administrative supplies. The nurse station

area shall include the following facilities.

* * *

b. There shall be a staff toilet room

adjacent to the nurse station.

c. There shall be a staff lounge and/or

conference room.

* * *

(4) When intensive care units are provided,

the following requirements shall be met.

* * *

(o) The following additional service space s

shall be immediately available within each

intensive care unit. These services may be

shared by more than one intensive care unit

if direct access is available from each

intensive care unit suite.

* * *

7. There shall be pur se lockers at each

nurse station for the secure storage of

staff's personal effects.

* * *

9. There shall be a staff toilet which may

be in conjunction with the staff lounge.

One staff lounge may serve several intensive

care u nits.

10. There shall be a visitor waiting room

for the unit, or units, with convenient

access to telephones, drinking fountains and

toilets. Such waiting rooms may serve

several intensive care units.

* * *

(8) Surgical Facilities.

* * *

(f) Service Areas.

* * *

10. There shall be a staff lounge and

toilet facilities. Separate or combined

lounges for male and female staff shall be

provided. . . .

* * *

(11) Emergency Service Department. When

24 - hour emergency service is to be provided,

the followi ng elements shall be required.

* * *

(d) There shall be a public waiting area

with adjacent toilet facilities, dri nking

fountains and telephones.

* * *

(o) There shall be locked cabinets or other

secure storage for staff's personal effects

within th e nurses' work area or lounge.

(p) There shall be staff toilets.

* * *

(1 2) Radiology Suite.

* * *

11. There shall be staff toilets.

* * *

(13) Laboratory Suite.

* * *

10. There shall be lounge, locker and

toilet facilities whi ch shall be

conveniently located for male and female

laboratory staff. . . .

* * *

(17) Dietary Fa cilities.

(a) Food service facilities and equipment

shall be provided as needed to meet the

dietary requirements of the hospital. A

conventional or convenience food preparation

system or any appropriate comb ination

thereof is acceptable.

(b) The following facilities shall be

provided in the size required to meet the

needs and to implement the type of food

service selected.

* * *

6. There shall be a dining room for

ambulatory patients, staff and visitors.

* * *

( 18) Ad ministration and Public Areas.

(a) All public waiting areas shall be

provided with male and female toilets

designed to accommodate the handicapped.

Such facilities shall be within 75 feet of

the waiting area and may serve more than one

such area.

* * *

(c) A lobby shall be provided which

includes a counter or desk for reception and

information, public waiting areas, public

tel ephones and drinking fountains.

* * *

(e) There shall be an admissions area with

a separate waiting area for patients and

accompanying persons . . . .

* * *

(24) Employee Facilities. Lockers, lounges

and toilets shall be provided for employees

and volunteers. These shall be in addition

to and separate from those required for th e

medical staff and the public.

Fla. Admin . Code Rule 59A - 3.255 Emergency

Care .

(6) SERVICE DELIVERY REQUIREMENTS.

(a) Every hospital offering emergency

services and care shall provide emergency

care available 24 hours a day within the

hospital to patients presenting to the

hospital.

Fla. Admin . Code Rule 59A - 3.2085 Department

and Services .

(1) Nutritional Care. All licensed

hospitals shall have a dietetic department,

service or other similarly ti tled unit which

shall be organized, directed and staffed,

and integrated with other units and

departments of the hospitals in a manner

designed to assure the provision of

appropriate nutritional care and quality

food service.

(a) The dietetic department shall be

directed on a full - time basis by a

registered dietitian or other individual

with education or specialized training and

experience in food service management, who

shall be responsible to the chief executive

officer or his designee for the operation s

of the dietetic department.

(b) If the director of the dietetic

department is not a registered dietitian,

the hospital shall employ a registered

dietitian on at least a part - time or

consulting basis to supervise the

nutritional aspects of patient care and

assure the provision of quality nutritional

care to patients. The consulting dietitian

shall regularly submit reports to the chief

executive officer concerning th e extent of

services provided.

(c) Whether employed full - time, part - time

or on a consulting basis, a registered

dietitian shall provide at least the

following services to the hospital on the

premises on a regularly scheduled basis:

1. Liaison with administration, medical and

nursing staffs;

2. Patient and family counseling as neede d;

3. Approval of menus and modified diets;

4. Required nutritional assessments;

5. Participation in development of

policies, procedures and continuing

education programs; and

6. Evaluation of dietetic services.

* * *

(e ) Nothing in this section shall prevent a

hospital from employing an outside food

management company for the provision of

dietetic services, provided the requirements

of this section are met, and the contract

specifies this compliance.

(f) The dietetic department, service or

other similarly titled unit shall employ

sufficient qualified personnel under

competent supervision to meet the dietary

needs of patients.

* * *

(i) The dietetic department, service or

other similarly titled unit shall be guided

by written policies and procedures that

cover food procurement, preparation and

service. Dietetic department policies and

procedures shall be developed by the

director of the dietetic department with

nutritional care policies and procedures

developed by a registered dietitian, shall

be subject to annual review, revised as

necessary, dated to indicate the time of

last review, and enforced. Written dietetic

policies shall includ e at least the

following:

* * *

12. Ancillary dietetic services, as

appropriate, including food storage and

kitchens on patient care units, formula

supply, cafeterias, [ 11 / ] ven ding operations

and ice making.

* * *

(r) Dietetic services shall be provided in

accordance with written orders by the

individual responsible for the patient and

appropriate information shall be recorded in

the patient's medical record. . . .

8. To meet its nutritional care and food service

obligations as a licensee , Respondent has had , since December 1,

2007, a Management Agreement with Morrison Management Services,

Inc. (Morrison), pursuant to which Morrison has been granted

"the exclusive right to manage and operate [Nutrition] Services

for [the Hospital's] patients, employees, visito rs and guests at

the [Hospital], " an arrangement that is allowed by Florida

Administrative Code Rule 59A - 3.2085(1)(e). These "Nutrition

Services" are described in the Managem ent Agreement as

including :

A. Patient Services

B. Cafeteria Services

C. Special Functions

D. Vending

9. To discharge its responsibilities under the Management

Agreement w ith regard to "Patient Services , " Morrison employs

five dieticians (Patient Services Dieticians) , one of whom

serves as the lead dietici an/clinical nutritional manager .

Meals prepared by Morrison in accordance with menus approved by

the Patient Services Dieticians ( as complying with physician

directives ) are delivered t o inpatients for consumption in their

rooms.

10. A nother responsibility that Morrison has undertaken

under the Management Agreement is to manage and operate for

Respondent Outtakes, a n in - hospital retail operation ( located

just off the Main Lobby ) selling coffee, cold beverages, cereal,

sandwiches, pastries, salads, candies, cards , flower

arrangements, newspapers, magazines, and other merchandise. 12 /

Its hours of operation are 6:30 a.m. to 8:00 p.m. on weekdays

and 7:00 a.m. to 8:00 p.m. on weekends. The food products

that are sold at Outtakes, which has no seating for patrons , are

"grab and go" items, not intended for on - premises consumption.

( Other "grab and go" food items may be purchased from the 17

Morrison - owned and operated vending machines located throughout

the Hospital. )

11. Pursuant to the Management Agreement, Morrison also

manages and operates for Respondent the Hospital cafeteria , 13 / a

75 - seat sit - down eating establishment 14 / located on the first

floor of the Hospital i mmediately past the Main Lobby , 15 / and the

adjoining , but separate, 20 - seat physician's dining room 16 / where

Hospital administrators and the physicians an d allied health

practitioners practicing in the Hospital (and only these

individuals) can enjoy complimentary buffet - style meals.

12. T here are restrictions on when , but not to whom (with

one exception), Hospital cafeteria food service is available .

The cafeteria is not a 24/7 operation . I t is open for business

only from 6:30 a.m. to 9:30 a.m., 11:00 a.m. to 4:00 p.m., and

4:30 p.m. to 7:00 p.m. on weekdays, and from 7:00 a.m. to

9:30 a.m., 11:30 a.m. to 4:00 p.m., and 4:30 p.m. to 7:00 p.m.

on weekends. Anyone who wants to patronize the cafeteria during

these hours can do so , e xcept for inpatients, who are expected

to eat only the physician - ordered, dietician - approved meals

delivered to their rooms. Inpatients discovered seeking food

service in t he cafeteria are denied service and escorted back to

their rooms. 17 /

13. Although the Ho spital cafeteria is open to the general

public and serves everyone regardless of their connection to the

Hospital, other than inpatients, the overwhelming majority

(approximately 94 percent) of the cafet e ria's patrons work or

volunteer in the Hospital as either Hospital non - administrator

employees, 18 / Hospital administrators, members of the Hospital

medical staff, Hospital volunteers, and law enforcement and

emergency personnel whose work brings them to the Hospital (94

Percenters) . Respondent has made arr angements with Morrison for

Hospital non - administrator employees to receive a discount on

the meals they purchase in the cafeteria and for t he other 94

Percenters to eat for free.

14. Neither Respondent nor Morrison track s the composition

of the remaining six percent of the cafeteria's patrons (Six

Percenters) , but it stands to reason that well represented in

this group of Six Percenters are visiting guests of inpatients

and others having a reason to already be in the Hospital (such

as vendors conducting b usiness there, as well as those waiting

to receive, or having just received, Hospital - based medical care

and services , along with anyone who may have accompanied them to

the Hospital ) . Respondent markets the cafeteria to these

"visitors" to the Hospital b y extending the following invitation

to them in t he Hospital's Patient Guide, which is not only given

to every inpatient , but is also published on the Hospital's

webpage :

[V] isitors are welcomed to join us for meals

in our cafeteria at the first floor of the

hospital. Our chefs and staff members offer

appetizing and nutrit ious meals daily. [ 19 / ]

While the business of the general public is not actively

solicited through advertising or other marketing efforts, if a

person with no other reason to be in the Hospital seeks to

patronize the cafeteria, that person will not be turned away by

cafeteria staff .

15. Not surprisingly, since only six percent of its

patrons are full - paying customer s, the cafeteria does not turn a

profit for Respondent; rather, it s operation results in a $2

million a year net expense . Nonetheless, in order to comply

with Florida Administrative Code Rule 59A - 3.081(17)(b)6. (as it

must, as a result of its having been granted a license to

operate the Hospital), Respondent has no choice but to continue

operating the cafeteria (or a dining facility like it , serving

"ambulatory patients, staff and visitors") on the premises of

the Hospital .

Ultimate Facts

16. The Hospita l (or, as the First District has referred

to it, the "Hospital establishment") holds itself as serving

patrons of the cafeteria located on its premises.

17. As a facility licensed by AHCA under chapter 395 to

operate as a hospital with an emergency room, the Hospital

establishment is required by Florida law to provide (and

therefore necess arily holds itself out as providing) emergency

services and care to any and every person who presents at its

emergency room seeking such services and care , including , by

necessity , those persons who patronize the Hospital cafeteria. 20 /

18. The Hospital establishment also serv es patrons of the

cafeteria by accommodating them in other ways , not involvin g the

provision of medical care, when they ar e in, or passing through,

the non - cafeteria areas of the Hospital . These accommodations

include dedi cating facilities for their use, comfort , and/or

benefit ( such as employee/staff work areas, change areas,

lounges, lockers and other personal storage area s , and

restrooms ; and public waiting areas , telephones, drinking

fountains, and re strooms, as well as the public information desk

in the Main Lobby ) and providing them with information

concerning the cafeteria, including its location, hours of

operation, a nd offerings . In addition, as Respondent

acknowledges in its Proposed Finding of Fact 38 : " The Hospital

provides certain [other] benefits to its employees and staff

[who make up the bulk of the 94 Percenters] , in its role as an

employer or, in the case o f physicians, as part of the Hospital -

physician relationship , " including , perhaps most notably for

purposes of the instant case, meal - related benefits (in the form

of discounted or complimentary meals) .

CONCLUS IONS OF LAW

19. The legal principles governing the disposition of the

jurisdictional issue before the undersigned were set forth by

the First District in its opinion in Mena I , pertinent portions

of which are recited above in the Preliminary Statement of this

Recommended Order . These principles , as well as the First

District's pronouncements in Mena I as to how the se principles

apply to the instant case, constitute the law of the case , and

the undersigned is bound to follow them , as is the Commission .

See Bryan v. Duncan , 106 Fla. 357, 358 (Fla. 1932)("The former

opinions became the law of the case on its remand to the Court

below."); Specialty Rests. Corp. v. Elliott , 924 So. 2d 834, 840

(Fla. 2d DCA 2005)("[B]ecause this court implicitly found the

proposal for settlemen t to be enforceable in the earlier appeal,

that ruling became the law of the case, and the trial court was

not authorized to deviate from it by finding the proposal for

settlement unenforceable on remand."); Gulfstream Park Racing

Ass'n v. Hialeah, Inc. , 4 95 So. 2d 1200, 1202 (Fla. 3d DCA

1986)("[T]he trial court is without jurisdiction, in this

independent action, to review this court's mandate from Hialeah

to determine whether it was erroneous and is bound to follow it

as the law of the case."); and In re Estate of Rasey , 23 8 So. 2d

647 (Fla. App. 4th DCA 1970)("This point of law became

established as the law of the case when the earlier order of the

county judge was affirmed by the circuit court in its appellate

capacity and left undisturbed by the Distri ct Court of Appeal

for the Second District. Once the law of the case was thus

established, the trial judge was bound by it throughout the

remainder of the cause.").

20. T he First District conclude d in Mena I that a

"critical question , " dispositive of the issue of the Hospital 's

status as a "public a ccommodation" over which the Commission has

jurisdiction , remain ed to be answered: " whet her the Hospital

establishment ' holds itself out as serving p atrons' of the

cafeteria located on its premises ." Finding this to be a

question of fact, the Mena I court "remand[ed] this case for the

Commission [which had yet to address this question] to make the

necessary fact findings." The First District subsequently

issued an Order directing that the Commission "refer th is matter

to [DOAH] for an evidentiary hearing in accordance with

[ Mena I ] ." The Commission complied with the First District's

directive , and the undersigned subsequently con ducted the

evidentiary hearing ordered by the First District. By issuing

this Recommended Order, the undersigned is discharging his

remaining task -- presenting for the Commission's consideration

his resolution of the factual question identified by the First

District in Mena I as being outcome determinative of the issu e

of whether the Commission has jurisdiction to investigate

Petitioner's Complaint pursuant to section 760.11(3).

21. The undersigned is without authority to recast this

factual issue or to reject any determination underlying the

First District's conclusi on that this issue is dispositive ,

including its determination that the presence of a "covered

establishment" on the premises of a hospital can, under certain

circumstances, transform the hospital into a "public

accommodation , " within the meaning of section 760.02(11)(d) , and

its further determination that the Hospital cafeteria in the

instant case is such a "c overed establishment," separate,

distinct , and independent from the Hospital establishment.

While a reasonable argument can be made that the Hospital

cafeteria is not such a "covered establishment," but is rather

a n integral , legally required (by Florida Administrative Code

Rule 59A - 3.081(17)(b)6.) part of the Hospital establishment

having no independent existence of its o wn, the First District

has already decided to the contrary , leaving the undersigned

powerless to entertain or consider this argument , however

persuasive it might be .

22. The undersigned accepts, as he must (because the First

District has already so decide d) , that the Hospital cafeteria is

a "covered establishment" and that , whether its presence on the

premises of t he Hospital establishment , an "otherwise uncovered

establishment," transform s the Hospital establishment into a

"public accommodation," within the meaning of section

760.02(11)(d), over which the Commission has jurisdiction,

depends on whether the Hospital establishment "holds itself out

as serving patrons of such covered establishment . "

23. The undersigned has p erformed the necessary fact

finding and found that the Hospital establishment does indeed

" hold [] itself out as serving patrons of the cafeteria located

on its premises." It follows that the Commission has

jurisdiction to, and therefore should, investigat e Petitioner's

Complaint pursuant to section 760.11(3). 21 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order on jurisdiction finding that it has

jurisdiction to investigate Petitioner's Complaint pursuant to

section 760.11(3) , inasmuch as the Hospital establishment, where

Respondent was allegedly denied sign - language services, is a

"public accommodation," within the meaning of section

760.02 (11)(d) , by virtue of having on its premises a "covered

establishment," to wit: the Hospital cafeteria, whose patrons it

holds itself out as serving.

DONE AND ENTERED this 2 1st day of February, 2012 , in

Tallahassee, Leon County, Florida.

S

________________ ___________________

STUART M. LERNER

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 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 1st day of February, 2012 .

ENDNOTES

1 / The body of the letter read, in its entirety, as follows:

We are in receipt of your client's complai n t

of public accommodation discri mination by

the named respondent. Ms. Mena, who is

deaf, alleges th a t she was discriminated

against when she was unable to obtain a sign

langu a ge interpreter dur ing her stay in the

facility.

By the terms of its worksharing agreement

with the EEOC, the Commission has been

delegated the authority to accept and

investigate "allegations of employment

discrimination pursuant to Title I" of the

ADA. Worksharing Agreement between FCHR and

EEOC (2009). (Emphasis supplied) Title I

does not include public accommodations in

its ambit, only employment discri mination

based upon disability. Therefore, this case

may not proceed with the Commission under

Title III of the ADA.

This raises the question whether hospitals

are places of public accommodation for

purposes of Chapter 760, Florida Statutes.

The Commiss ion concludes th a t a hospital is

not a "place of public accommodation" under

the Florida Civil Rights Act. The

legislative history of Chapter 760 does not

contain any reference to § 760.02(11). The

allusions to public accommodations

disability discrimina tion all reflect that a

complaint could be filed with FCHR "based on

discrimination in public lodging

establishments and public food service

establishments" based upon disability. This

language was borrowed from § 509.092,

Florida Statutes, which by its e xpress terms

refers only to public lodging and public

food service establishments. These are the

underpinnings of the definitions that appear

in § 760.02(11), Florida Statutes (2009).

A hospital offers its medical services to

members of the public and pr ovides meals for

its patients, staff and visitors; however,

the facility is not "principally engaged in

selling food for consum ption on the

premises." §760.02 (11), Florida Statutes

(2009). A hospital cafeteria is not a

destination dining establishment; i t is a

business necessity which does not transform

the hospital into a place of public

accommodation.

2 / The hearing was subsequently continued and rescheduled to

commence on December 6, 2011.

3 / In an endnote, the undersigned observed:

Limiting the scope of the "evidentiary

hearing" to this jurisdictional issue is

consistent with what has been done in other

cases before the Division of Administrative

Hearings involving a Commission

determination of "no jurisdiction." See

Deleo v. Props. of the Vills. , Case No. 09 -

0714, 2009 Fla. Div. Adm. He ar. LEXIS 599 *2

(Fla. DOAH July 16, 2009)(Recommended Order,

ALJ Hooper)("At the May 14, 2009, hearing,

only the question of jurisdiction was

considered. This is because a recommended

order finding jurisdiction, if adopted by

the Commission, would trigger the

investigation required by Subsection

760.11(3), Florida Statutes (2008). Or, in

the alternative, a recommended order finding

no jurisdiction, if adopted by the

Commission, would end the case.") ; Baker v.

Maycom Commc'ns/Sprint - Nextel , Case No. 08 -

5809, slip op. at 3 n. 1 (Fla. DOAH Dec. 2,

2008 )(Order to Show Cause, ALJ

Wetherell)("The scope of the proceeding is

limited to the jurisdictional issue -- i.e. ,

whether Respondent is a 'public

accommodation' over which FCHR has

jurisdiction. The merits of Petitioner' s

discrimination complaint are not yet at

issue. If this case goes to hearing and

Petitioner prevails on the jurisdictional

issue, the case will be returned to FCHR

with a recommen dation that FCHR inves tigate

the merits of Petitioner' s complaint.

Otherwise, the case will be returned to FCHR

with a recommendation that the case be

dismissed due to a lack of jurisdiction.");

Banks v. Dep't of Corr. , Case No. 08 - 4878,

2008 Fla. Div. Ad m. Hear. LEXIS 296 **3 - 4

(Fla. DOAH Oct. 30, 2008) (Recommended Order,

ALJ Wetherell )("The Order to Show Cause

entered on October 10, 2008, stated in

pertinent part: . . . ' Petitioner is

entitled to a de novo hearing on the issue

of whether DOC was her emp loyer. If it is

determined that DOC was her employer, then

the case will be returned to FCHR with a

recommendation that it investigate the

merits of Petitioner's discrimination

complaint against DOC. If it is determined

that DOC was not Petitioner's empl oyer, then

the case will be returned to FCHR with a

recommendation that the petition be

dismissed based upon a lack of

jurisdiction. ' ") ; Victor v. Ramada Plaza

Resorts , Case No. 06 - 0343, 2006 Fla. Div.

Adm. Hear. LEXIS 387 **3 - 5 (Fla. DOAH Aug.

11, 2006)(P artial Recommended Order, ALJ

Meale)(" At the hearing, the Administrative

Law Judge bifurcated the issues in the case

so that the hearing on June 12, 2006, would

address only the issue of whether Respondent

was an employer under the Act . . . .

Respondent contended th at, if the

Administrative Law Judge determined that the

Commission had jurisdiction over the claims

of discrimination, he should not proceed

directly to conduct an evidentiary hearing

on those claims, but should instead

relinquish jurisdiction to the Commission

for the purpose of conducting an

investigation, making a determination on the

substantive claims of jurisdiction, and

transmitting the petition to the Division of

Administrative Hearings. Except for a

reference to the Petition for Relief , the

Transmittal of Petition, which is dated

January 24, 2006, does not otherwise

identify the issues that the Commission

wants the Administrative Law Judge to

address. However, after re - examining the

charging documents and Notice of

Determination: No J urisdiction, the

Administrative Law Judge is granting

Respondent's request not to proceed to an

evidentiary hearing on the substantive

issues, but instead to relinquish

jurisdiction to the Commission for

consideration of this Partial Recommended

Order. Re linquishing jurisdiction to the

Commission with a Partial Recommended Order

determining that Respondent is a covered

employer will permit the Commission to

conduct an investigation on the substanti ve

allegations -- something that the Commission

evidently has not yet done. This procedure

will also permit the Commission to rule on

the Administrative Law Judge's

jurisdictional conclusions of law prior to

requiring the parties to present evidence on

the substantive claims of discrimination. A

determination that Respondent is an employer

includes conclusions of law within the

substantive jurisdiction of the Commission,

not the Administrative Law Judge, so the

Commission will have the final word, as

between the Commission and Administrative

Law Judge, concerning s uch conclusions,

which could effectively result in a

determination that the Commission lacks

jurisdiction. "); and Myers v. Cent. Fla.

Invs., Inc. , Case No. 02 - 3580, 2003 Fla.

Div. Adm. Hear. LEXIS 294 **2, 32 (Fla. DOAH

Apr. 17, 2003)(Recommended Order, AL J

Wetherell)(" Based upon the Commission

staff's investigation of the amended charge,

the Executive Director of the Commis sion

issued a determination of 'no jurisdiction'

on August 6, 2002. Notice of that

determination was provided to Petitioner by

mail on that same date. The determination

did not address the merits of the amended

charge, . . . . [I]t is RECOMMENDED that

the Florida Commission on Human Relations

issue a final order which:

1. determines that Petitioner was an

employee of Respondent rather than an

independent contractor for purposes of the

Florida Civ il Rights Act of 1992; and 2.

directs the Commission staff to re - open its

investigation into the merits of

Petitioner's amended charge of

discrimination against Respondent. ").

4 / The H ospital is a private hospital in that it is owned by a

private entity -- Respondent. See W. Coast Hosp. Ass'n v. Hoare ,

64 So. 2d 293, 296 - 297 (Fla. 1953)("A private hospital is one

founded and maintained by private persons or a

corporation . . . ."). Tha t it is privately owned, however,

does not mean that it cannot be a "public accommodation," within

the meaning of the Florida Act .

5 / A general acute care hospital is a Class I hospital having an

average length of stay of 25 days or less for all inpatient

beds . Fla. Admin. Code Rules 59A - 3.065 and 59A - 3.252 .

6 / The Hospital is located in a commercial area where medical -

related facilities predominate. It is not easily accessible by

foot, there being no sidewalks leading to the Hospital from the

public s treet on which it is located . The overwhelming majority

of people who come to the Hospital get there by using some sort

of vehicular transportation. For those using their own vehicles

to travel to the Hospital, paid parking is available.

7 / Over the past three years, the Hospital has averaged 20,400

inpatient admissions per year.

8 / Although there are no security personnel at these entrances,

there are security cameras there.

9 / Respondent has three other licenses from AHCA. These other

licenses authorize it to provide outpatient medical services at

facilities separate from, but on the same "campus" as, the

Hospital. These outpatient facilities are located in the

"medical mall" that adjoins the Hospital.

10 / "Emergency serv ices and care," as used in chapter 395,

"means medical screening, examination, and evaluation by a

physician, or, to the extent permitted by applicable law, by

other appropriate personnel under the supervision of a

physician, to determine if an emergency m edical condition exists

and, if it does, the care, treatment, or surgery by a physician

necessary to relieve or eliminate the emergency medical

condition, within the service capability of the facility."

§ 395.002.

11 / The imposition of the requirement t hat hospitals have

"written dietetic policies" for their "cafeterias" necessarily

presupposes that these "cafeterias" are a part of, rather than

independent from, the hospitals in which they are located.

12 / The record evidence is insufficient to support a finding

that Outtakes is " principally engaged in selling food" (as

opposed to non - food items).

13 / The cafeteria is staffed by Morrison employees. The only

involvement that any of the Morrison - hired Patient Services

Dieticians have in the operation of the cafeteria is preparing

posters containing "nutritional tips" for posting on the walls

of the cafe teria.

14 / The Hospital cafeteria serves, on average, 19,000 to 23,000

meals a month.

15 / There is directional signage pointing to the cafeteria on

the first floor of the Hospital. (Nowhere else is there such

signage, either inside or outside the Hospital.) Just outside

the cafeteria (on the Hospital walls), the cafeteria's menus are

posted.

16 / The physician's dining room can be accessed only by going

through the cafeteria.

17 / Respondent takes the view that denying cafeteria service to

inpatients who are able to ambulate to the cafeteria does not

violate the mandate of Florida Administrative Code Rule 59A -

3.081(17)(b)6. that " [t]here shall be a dining room for

ambulatory patien ts . . . . " According to Respondent,

"ambulatory patients," within the meaning of this rule

provision, are "outpatients . . . not inpatients."

18 / Indicative of the patronage of these employees ( to who m an

on - site dining option is particularly attractiv e, given that

they are given only a 30 - minute meal break ) is the presence of

an employee bulletin board, maintained by the Hospital's Human

Resources Department, on the wall of the cafeteria.

19 / The hours of operation of the cafeteria are set forth on the

following page of the Patient Guide.

20 / Further medical care, provided by the Hospital establishment

on an inpatient basis, is available to those emergency room

patients who require it.

21 / The undersigned declines Respondent's invitation (made

thro ugh its Proposed Recommended Order) to include the following

"Conclusions of Law" in this Recommended Order:

58. Under section 760.02(11)(d), the

Hospital cannot be found derivatively to be

a public accommodation by virtue of the

presence of a cafeteria on its premises. As

already noted, section 760.02(11)(d)

provides that public accommodations include

" [a]ny establishment . . . within the

premises of which is physically located any

such covered establishment, and which holds

itself out as serving patron s of such

covered establishment. " A cafeteria is

listed among the expressly identified

establishments which serve the public and

thus are deemed places of public

accommodation within the meaning of the

FCRA. § 760.02(11)(b), Fla. Stat.

59. Yet, the Ho spital, like all acute care

licensed hospitals in Florida, is required

by AHCA lice nsing regulations to provide a

" dining room for ambulator y patients, staff

and visitors." Rule 59A - 3.081(17), Fla.

Admin. Code. By complying with the

licensing requirement s to provide a

cafeteria for ambulatory patients, staff and

visitors, the Hospital and all other such

licensed hospitals in Florida would be

deemed automatically to be holding

themselves out as serving the patrons of the

cafeteria within the meaning of sub section

(d) of [section 760.02(11) of] the FCRA

[Florida Act] . To reach such a conclusion

would judicially write into the list of

defined public accommodations all hospitals

in the State of Florida when the Legislature

did not include them ab initio . The ALJ

recommends that the Commission not do so .

60. The AHCA regulations also render the

cafeteria a business necessity, which the

Commission noted and which is a recognized

ground for finding the cafeteria does not

transform the Hospital into a public

ac commodation. In Martin v. University of

New Haven, Inc ., 359 F. Supp. 2d 185 (D.

Conn. 2005), a private university created a

cafeteria for the purposes of serving its

faculty, staff and students. Id. 188 - 89.

The cafeteria did not purport to be open to

t he general public in the same way as a

hotel, restaurant or other entity covered

under the Federal Civil Rights Act. Id.

The court concluded, therefore, the

cafeteria did not transform a private

university into a covered entity. Id.

Similarly here, a p rivate hospital created a

cafeteria for the business purposes of

satisfying a licensure requirement and of

serving certain patrons who have a business

reason for being at the hospital. Such a

cafeteria should not transform the Hospital

into a public accom modation.

Respondent, in essence, is asking the undersigned to revisit and

reject, on the grounds that " the Hospital, like all acute care

licensed hospitals in Florida, is required by AHCA lice nsing

regulations to provide a ' dining room for ambulator y pat ients,

staff and visitors'" and that it therefore maintains the

cafeteria on its premises as a "business necessity," the

determination made by the First District in Mena I that the

Hospital cafeteria is a "covered establishment," as that term is

used in se ction 760.02(11)(d), capable of transforming the

Hospital establishment into a "public accommodation." This the

undersigned cannot do, inasmuch as he i s bound by the First

District's determination (a determination which, as Respondent

seems to recognize , given the regulatory scheme governing

hospitals in Florida, inescapably leads to the conclusion that

the Hospital is a " public accommodation, " as defined in section

760.02( 11)(d) ).

COPIES FURNISHED:

Matthew W . Dietz, Esquire

Law Offices of Matthew W. Dietz, P.L.

2990 Southwest 35th Avenue

Miami, Florida 33133

Martin B. Goldberg, Esquire

Lorelei J. Van Wey, Esquire

Lash and Goldberg, LLP

100 Southeast 2nd Street, Suite 1200

Miami, Florida 33131

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Al l 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 fil ed with the agency that

will issue the final order in this case.