11-005602 Traci Inman vs. Jian Deng Bao, D/B/A China Gardens Restaurant Status: Closed Recommended Order on Thursday, February 16, 2012.

Summary: Petitioner demonstrated that restaurant denied her equal access to public accommodation by refusing to allow her to enter with her service dog.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRACI E INMAN , )

)

Petitioner, )

)

vs. ) Case No . 11 - 5602

)

JIAN DENG BAO, d/b/a CHINA )

GARDENS RESTAURANT , )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 10,

2012 , in Jacksonville , Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Sharon Case rta, Esquire

Jacksonville Area Legal Aid,

Deaf/Hard of Hearing

Legal Advocacy Program

126 West Adams Street

Jacksonville, Florida 32202

[e-mail]

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent , Jian Deng Bao, d/b/a China

Gardens Restaurant ( "China Gardens ") denied Petitioner full and

equa l enjoyment of the goods and services offered at its place

of public accommodation, in violat ion of s ection 760.08, Florida

Statutes (2011) . 1 /

PRELIMINARY STATEMENT

On or about May 23, 2011 , Petitioner Traci Inman

("Petitioner") filed with the Florida Co mmission on Human

Relations ("FCHR") a Public Accommodation Complaint of

Discrimination against China Gardens . Petitioner alleged that

s he had been discriminated against in violation of chapter 760,

Florida Statutes :

On or about January 18, 2011, the

Comp lainant went to China Gardens restaurant

for dinner accompanied by her certified

service dog Nauly and two companions.

Complainant attempted to enter the

restaurant for dine - in service but was

denied access by a female employee who told

her the dog could not enter the restaurant.

The employee refused the Complainant, her

service animal and her companions entrance

to the restaurant, and told them they would

either need to leave or order the food for

takeout.

The FCHR investigated Petitioner's Complaint . In a letter

dated October 6, 2011 , the FCHR issued its determination that

there was reasonable cause to believe that an unlawful public

accommodation practice occurred .

On October 31, 2011 , Petitioner timely filed a Petition for

Relief and Administrative H earing with the FCHR . On November 1 ,

2011 , the FCHR referred the case to the Division of

Administrative Hearings (" DOAH " ) . The case was scheduled for

hearing on January 10, 2012 , at 9:30 a.m .

No representative of China Gardens appeared at the final

heari ng on January 10, 2012, the commencement of which was

delayed by 10 minutes to allow China Gardens every opportunity

to be heard. The hearing proceeded in order to allow Petitioner

to present her prima facie case. The hearing adjourned at

approximately 1 0:00 a.m.

On January 18, 2012, the undersigned entered an order to

show cause directing China Gardens to provide, within 10 days,

reasons why the record in the case should not be closed and the

recommended order entered based on the current record. Chin a

Gardens did not respond to the order to show cause. An order

closing the record was entered on January 30, 2012.

At the hea ring, Petitioner testified on h er own behalf and

presented the testimony of Officer N. S. Eddy of the

Jacksonville Sheriff's Offic e ("JSO"); Petitioner's husband,

Kevin Inman; and Petitioner's daughter, Christina Inman.

Petitioner's Exhibits 1 through 3 were admitted into evidence.

No court reporter was present at the hearing. The

undersigned used a digital recorder to memorialize the hearing,

and used the recording to assist in the writing of this

recommended order. Petitioner timely filed a P roposed

R ecommended order on February 3, 2012. Respondent did not file

a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Traci e Inman, is deaf and blind. She uses

a service dog to assist with her mobility. She is a resident of

Duval County.

2. China Gardens is a restaurant operating at 13740 Beach

Boulevard, #112, Jacksonville, Florida 32224.

3. Mrs. Inman is married to Kevin Inman. They have a

daughter, Christina, who is of middle school age. Prior to

January 18, 2011, the Inman family had dined at China Gardens at

least ten times over the past few years.

4. On January 18, 2011, the Inman family went to China

Gardens for d inner. On this occasion Mrs. Inman was

accompanied , for the first time at China Gardens, by her service

dog.

5. As the Inmans entered the restaurant, they were met by

Hang Ping Bao, a female employee of the restaurant. Ms. Bao

repeatedly stated, "No dog . No dog allowed."

6. Mr. Inman attempted to explain to Ms. Bao that the

restaurant was required by law to allow his wife to enter with

her service dog. He showed Ms. Bao a "Leader Dog Card"

explaining Ms. Inman's right to enter places of public

accommo dation with her dog. Ms. Bao nonetheless continued to

refuse to allow the Inmans to enter the restaurant. She told

them that they could order food to take out but they would not

be seated in the restaurant. Other customers were seated and

eating in the restaurant at the time the Inmans were denied

entrance.

7. The family walked out of the restaurant. From the

China Gardens parking lot, Mr. Inman phoned the non - emergency

line of the JSO to report the incident and request assistance.

The dispatcher who answered the call was unaware that denying

service in a place of public accommodation based on the presence

of a service dog is a criminal offense under section 413.08(4),

Florida Statutes. Because she believed the incident described

by Mr. Inman constitu ted only a civil matter, the dispatcher

refused to send an officer to assist.

8. Mr. Inman later spoke with the Florida Department of

Law Enforcement ("FDLE") to confirm his understanding of the

law. The FDLE representative gave Mr. Inman the statutory

c itations to establish that the incident at China Gardens was

indeed a matter for the police.

9. On January 19, 2011, Mr. Inman again phoned the JSO.

This time the dispatcher understood the situation and agreed to

send an officer to meet the Inmans at Chi na Gardens to follow up

on their complaint. Officer N.S. Eddy responded to the call and

filed a police report, which was admitted into evidence.

10. Officer Eddy testified that Ms. Bao admitted to him

that she had refused to allow the family to enter the restaurant

with the service dog. Ms. Bao explained that she was unaware

that the law required her to allow entrance to persons with

service dogs. She assured Officer Eddy that China Gardens would

comply with the law in the future. No criminal prosecuti on was

brought against China Gardens.

11. At the hearing, M r s. Inman testified that she felt

humiliated by the incident on January 18, 2011. Other patrons

in the restaurant witnessed the confrontation with Ms. Bao,

which caused M r s. Inman great embarrass ment. M r s. Inman

testified that her family has not returned to China Gardens

since the incident , and that she is fearful of going into any

restaurant with which she is not already familiar .

CONCLUSIONS OF LAW

12 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

13 . The Florida Civil Rights Act of 1992 (the " Florida

Civil Rights Act " or the " Act " ), c hapter 760, Florida Statutes,

prohibits discriminat ion in the workplace and in places of

public accommodation .

14 . Subsection 760. 08 , Florida Statutes, provides :

Discrimination in places of public

accommodation. -- All persons shall be

entitled to the full and equal enjoyment of

the goods, services, f acilities, privileges,

advantages, and accommodations of any place

of public accommodation, as defined in this

chapter, without discrimination or

segregation on the ground of race, color,

national origin, sex, handicap, familial

status, or religion.

15 . China Gardens is a " public accommodation " as defined

in s ubsection 760.02(11 ), which provides the following , in

relevant part :

" Public accommodations " means places of

public accommodation, lodgings, facilities

principally engaged in selling food for

consum ption on the premises, gasoline

stations, places of exhibition or

entertainment, and other covered

establishments. Each of the following

establishments which serves the public is a

place of public accommodation within the

meaning of this section:

* * *

(b) Any restaurant, cafeteria, lunchroom,

lunch counter, soda fountain, or other

facility principally engaged in selling food

for consumption on the premises, including,

but not limited to, any such facility

located on the premises of any retail

establishment , or any gasoline station. ...

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

§ 2000a, prohibits discrimination in places of public

accommodation, in language identical to that found in section

760.08, except for the omission of certain protected classes,

including handicap. Due to the lack of Title II cases, federal

courts routinely find guidance in the law of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, including the law

of the shifting burdens of production of evidence. See F ahim v.

Marriott Hotel Serv . , 551 F.3d 344, 349 (5th Cir. 2008) , and

cases cited therein . T he United States Supreme Court's model

for employment discrimination cases set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.

2d 668 (1973), also provides the model for Title II cases.

Fahim , 551 F.3d at 349 - 350.

17 . Under the McDonnell analysis, as modified for cases of

discrimination in places of public accommodation , Petitioner has

the burden of establishing by a prepondera nce of evidence a

prima facie case of unlawful discrimination. If the prima facie

case is established, the burden shifts to Respondent to rebut

this preliminary showing by producing evidence that the

a llegedly discriminatory action was taken for some legi timate,

non - discriminatory reason. If Respondent rebuts the prima facie

case, the burden shifts back to Petitioner to show by a

preponderance of evidence that Respondent 's offered reason w as

pretextual or that Respondent's reason, if true, was only one

re ason for its action and that another motivating factor was

Petitioner's protected characteristic .

18 . In order to prove a prima facie case of unlawful

public accommodation discrimination under section 760.08 ,

Petitioner must establish that: (1) s he is a memb er of the

protected class ; (2) s he attempted to contract for the services

of a public accommodation ; (3) she was denied those services ;

and (4) the services were made available to similarly situated

persons outside her protected class. Fahim , 551 F. 3d at 350.

19 . Petitioner has proven a prima facie case of unlawful

employment discrimination. Petitioner established that s he is a

member of a protected group, in that s he has the handicaps of

deafness and blindness . Petitioner attempted to contract for

the services of China Gardens by entering the restaurant with

her family and service dog. Petitioner was denied the requested

services solely because of the presence of her service dog.

Other patrons were dining in the restaurant at the time

Petitioner was denied entrance.

20. Respondent did not appear at the hearing. Therefore,

no rebuttal case was made.

21. After an administrative hearing, if the FCHR finds

that a discriminatory practice has been committed, the FCHR must

issue a final order "prohibi ting the practice and providing

affirmative relief from the effects of the practice . . ."

§ 760.11(6), Fla. Stat. However, the FCHR has no authority to

award monetary relief for non - quantifiable damages such as pain,

embarrassment or humiliation. City of Miami v. Wellman , 976 So.

2d 22, 27 (Fla. 3d DCA 2008) (non - quantifiable damages "are

uniquely within the jurisdiction of the courts").

22. Petitioner seeks an award of attorney's fees pursuant

to s ection 760.11(6) . However, that subsection provides that

" the commission , in its discretion, may allow the prevail ing

party a reasonable attorney' s fee as part of the costs." Thus,

the undersigned lacks authority to make such an award in the

first instance. Under all the circumstances of this case, the

un dersigned recommends that the FCHR award Petitioner her costs

and a reasonable attorney's fee , and remand the case for

issuance of a recommended order regarding the amount of

attorney's fees and costs owed to Petitioner. See , e.g. ,

Caiminti v. The Furnitu re Enterprises, LLC , FCHR Order No. 10 -

022 (Feb . 26, 2010).

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:

1. Finding that Responden t Jian Deng Bao, d/b/a China

Gardens Restaurant , committed an act of public accommodations

discrimination against Petitioner Tracie Inman ;

2. Prohibiting any future acts of discrimination by

Respondent; and

3. A warding Petitioner her costs and a reasona ble

attorney's fee.

DONE AND ENT ERED this 1 6 th day of February, 2012 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee 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 1 6 th day of February , 201 2 .

ENDNOTE

1 / Citations shall be to Florida Statutes (201 1 ) unless

otherwise specified. Section 760. 08 , Florida Statutes, has been

unchanged since its adoption in 2003 .

COPIES FURNISHED :

Sharon Caserta, Esquire

Jacksonville Area Legal Aid,

De af/Hard of Hearing Legal Advocacy Program

126 West Adams Street

Jacksonville, Florida 32202

[e-mail]

Jian Bao

China Gardens Restaurant

4765 Hodges Boulevard

Jacksonville, Florida 32224

Denise Crawford, Agency Clerk

Florida Commiss ion on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

[e-mail]

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

[e-mail]

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.