12-003992 Freddie Mitchell vs. Bb King's Blues Club Status: Closed Recommended Order on Wednesday, May 14, 2014.

Summary: Petitioners failed to prove they were subjected to discrimination based on race or national origin. Respondent applied reasonable seating policies in a non-discriminatory manner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDDIE MITCHELL,

Petitioner,

vs. Case No. 12 - 3992

BB KING ' S BLUES CLUB,

Respondent.

______________________________/

GENEVIEVE ABAD BECK,

Petitioner,

vs. Case No. 13 - 0517

BB KING ' S BLUES CLUB,

Respondent.

_ ______________________________/

RECOMMENDED ORDER

Pursuant to notice, an evidentiary hearing was conducted in

these consolidated cases on January 28, 2014, by video

teleconference at sites in Orlando and Tallahassee, Florida,

before Elizabeth W. McArthur, Administrative Law Judge, Division

of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Freddie L. Mitchell, pro se

Post Office Box 23901

Tampa, Flor ida 33623 - 3901

For Petitioner: Genevieve Abad Beck, pro se

4116 West Carmen Street

Tampa, Florida 33609

For Respondent: Nicole Alexandra Sbert, Esquire

Jackson Lewis LLP

Suite 1285

390 North Orange Avenue

Orlando, Florida 32802

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated

against Petitioners on the basis of race or national origin at

Respondent ' s place of public accommodation.

PRELIMINARY STATEMENT

On or about May 2, 2012, Petitioner Freddie Mitchell

(Petitioner Mitchell) filed with the Florida Commission on Human

Relations (FCHR) a Public Accommodation Complaint of

Discrimination aga inst Respondent BB King ' s Blues Club

(Respondent or BB King ' s). Petitioner Mitchell alleged that on

December 3, 2011, Respondent discriminated against him because of

his race (African - American), when he and his partner were not put

on a waiting list and w ere asked to get up after they seated

themselves at a table for four. Petitioner Mitchell claimed that

there were Caucasian customers who were not treated the same way.

On or about May 21, 2012, Petitioner Genevieve Abad Beck

(Petitioner Beck), the partne r referred to in Petitioner

Mitchell ' s complaint, filed with FCHR a separate Public

Accommodation Complaint of Discrimination against Respondent.

Petitioner Beck alleged that in the same December 3, 2011,

incident described in Petitioner Mitchell ' s compla int, Respondent

had discriminated against her on the basis of her race/national

origin (Asian).

On October 26, 2012, FCHR issued a Notice of Determination:

Cause, determining there was reasonable cause for Petitioner

Mitchell ' s complaint. The FCHR notice erroneously indicated that

Petitioner Mitchell ' s complaint was for unlawful employment

practices by an employer. FCHR informed Petitioner Mitchell of

his options for an administrative hearing or civil action.

Petitioner Mitchell opted for an administrati ve hearing by timely

filing his Petition for Relief on November 15, 2012. The

petition was forwarded to DOAH and assigned to the undersigned to

conduct the requested hearing.

After coordination to identify available hearing dates,

Petitioner Mitchell ' s ca se was set for hearing on March 12, 2013.

Shortly thereafter, on January 16, 2013, Respondent initiated

written discovery, serving interrogatories and document

production requests on Petitioner Mitchell.

Meanwhile, on November 19, 2012, FCHR issued a Noti ce of

Determination: No Cause, determining there was no reasonable

cause for Petitioner Beck ' s complaint. The FCHR notice

erroneously indicated that Petitioner Beck ' s complaint was for

unlawful employment practices by an employer.

On December 12, 2012, F CHR issued a Rescission of Notice of

Determination: No Cause, replaced with a Notice of

Determination: Cause issued by FCHR on January 11, 2013, this

time determining there was reasonable cause for Petitioner Beck ' s

complaint. This notice continued the erroneous description of

the complaint as directed to unlawful employment practices by an

employer. FCHR informed Petitioner Beck of her options for an

administrative hearing or civil action, and Petitioner Beck opted

for an administrative hearing by fili ng a Petition for Relief

with FCHR on February 12, 2013. Petitioner Beck ' s case was

forwarded to DOAH and assigned to Administrative Law Judge

Linzie F. Bogan.

On February 21, 2013, Respondent moved to consolidate the

two related proceedings. Petitione r Beck ' s case was transferred

to the undersigned, and a telephonic motion hearing was set for

February 27, 2013. On February 26, 2013, Respondent filed a

motion to compel discovery from Petitioner Mitchell and an

unopposed motion for continuance of the Ma rch 12, 2013, hearing

to allow Respondent to obtain the written discovery requested

from Petitioner Mitchell and to follow up with a deposition.

Also on February 26, 2013, Respondent served document production

requests and interrogatories on Petitioner Be ck.

In the February 27, 2013, telephonic hearing, the

undersigned granted the motions to continue Petitioner Mitchell ' s

hearing and to consolidate the two cases. The parties agreed to

a final hearing date of May 9, 2013. The undersigned did not

rule on R espondent ' s motion to compel discovery from Petitioner

Mitchell; Mitchell represented that he was completing his

responses. The undersigned took the opportunity to inform

Petitioners that having invoked the administrative hearing

process, they were obliga ted to follow the governing rules,

including the discovery rules of civil procedure. Petitioners

were told how to access the governing rules. Petitioners were

also told to take seriously their obligations to respond fully

and without delay to Respondent ' s discovery requests, and that if

they failed to do so, the final hearing could be delayed and

sanctions could be imposed under the discovery rules.

As detailed in numerous motions and orders in the record of

these cases, Petitioners failed to provide time ly or complete

responses to Respondent ' s discovery requests, despite being given

numerous opportunities to correct their failures, despite being

put on notice of the specific ways in which they had failed to

respond adequately, and despite numerous warning s of the specific

sanctions that could be imposed against them if they did not

correct their failures. On more than one occasion, Respondent ' s

motions requested that the ultimate sanction of dismissal be

ordered as a result of Petitioners ' discovery trans gressions.

The undersigned denied the requests for dismissal as discovery

sanctions. However, Petitioners ' non - compliance caused

substantial delay and expense to Respondent, as detailed in the

docket filings. Accordingly, the undersigned imposed limited

sanctions targeting the areas of repeated non - compliance, and

also assessed costs against Petitioners to reimburse Respondent,

in part, for attorney ' s fees incurred in attempting to secure

discovery responses and enforce orders compelling discovery. 1/

U ltimately, the consolidated cases were set for hearing on

January 28, 2014, in accordance with the parties ' joint request,

and the hearing went forward as rescheduled.

At the hearing, Petitioner Mitchell testified on his own

behalf in his case, and Petitio ner Beck testified on her own

behalf in her case. Petitioners offered no documentary evidence.

Respondent presented the testimony of Michael Coon, Michael

Davis, and Angelina Olivo. Respondent ' s Exhibits 1 through 4, 6,

8, and 14 were offered and admitte d in evidence.

The two - volume Transcript of the final hearing was filed on

February 28, 2014. Respondent filed two unopposed motions to

extend the time for filing P roposed R ecommended O rders, which

were granted. Respondent timely filed its P roposed R ecom mended

O rder by the extended deadline. Petitioner Beck filed her

P roposed R ecommended O rder after hours on the extended deadline

day, but her late filing is accepted. Petitioner Mitchell did

not file a proposed recommended order. Due consideration has

b een given to the P roposed R ecommended O rders filed by Respondent

and Petitioner Beck in preparing this Recommended Order.

FINDING S OF FACT

1. At issue in these consolidated cases are the complaints

by Petitioners Mitchell and Beck that they were subjected to

discrimination when they visited Respondent ' s Orlando restaurant

on December 3, 2011.

2. Petitioner Mitchell is an African - American male, and

Petitioner Beck is an Asian female. They live in Tampa and have

been dating for approximately five years. P rior to December 3,

2011, they had visited BB King ' s in Orlando several times -- four

or five times, according to Petitioner Mitchell. On each of

those occasions, they had enjoyed the restaurant ' s services and

were not subjected to any form of discriminatio n.

3. BB King ' s is a southern - style barbecue restaurant and

live music venue. Respondent operates four BB King ' s locations.

The Orlando restaurant is the largest, occupying 14,000 square

feet spread over two stories, with three bars, a stage, and a

danc e floor.

4. The restaurants are named after the famous African -

American blues musician, B.B. King. At the Orlando restaurant,

B.B. King and other blues musicians (such as Ray Charles and

Howlin ' Wolf, both African - Americans) are portrayed in paintings

an d images on the exterior walls, and inside the restaurant on

the stage, on the walls, on the menus, and on the glassware.

5. BB King ' s has a racially diverse clientele. A large

majority of Respondent ' s customers are African - Americans.

6. Respondent has a non - discrimination policy, prohibiting

discrimination on the basis of race, color, religion, sexual

orientation, ethnicity, or other classification. All of

Respondent ' s employees receive training on the company ' s non -

discrimination policy, as part of th e extensive initial - hire

training process in the company ' s policies and procedures.

7. The Orlando BB King ' s is at its busiest on Saturday

nights, particularly between 7:00 p.m. and 10:00 p.m. During

this time, there is usually a wait for a table. The w aiting time

ranges from five minutes to two hours.

8. Respondent ' s seating policies and procedures were at the

heart of the incident of which Petitioners complained. The

seating policies and procedures in effect as of December 3, 2011,

established throug h the credible testimony of Respondent ' s

witnesses and corroborating exhibits, are described below.

9. Respondent does not offer reservations in the

traditional sense of reserving a table to accommodate a

particular number of customers at a particular tim e. Instead,

Respondent offers a variation of traditional reservations, called

priority seating. Priority seating arrangements can be made in

advance by telephone, online, or in person, for a particular

group expecting to arrive at a particular time. Whi le priority

seating does not guarantee that a table will be ready when the

group arrives, if an appropriate - sized table is not ready, the

group is given first - in - line status, so they would receive the

next available table of the size needed to accommodate the group,

ahead of any walk - ins who are waiting for the same - sized table.

10. Respondent limits the number of priority seating

arrangements it will make for a given time slot. It is common,

therefore, for priority seating slots to be filled in advance,

particularly for the restaurant ' s peak days and peak times. When

persons request tables for time slots with no more priority

seating openings, those persons are told that they are welcome to

come to the restaurant as walk - in customers.

11. Through its seating policies and procedures, Respondent

seeks to strictly control seating and to discourage customers

from seating themselves. That is particularly important when the

restaurant is very busy, for several reasons: to maintain order;

to rotate the seat ing of customers among the different server

zones so as to evenly spread the work load among the servers; to

ensure that priority seating is provided to those who timely

avail themselves of that option; and to maximize use of seating

capacity when demand i s at its peak.

12. To help control seating, upon entering the Orlando BB

King ' s restaurant, customers are informed by a sign at the

reception station: " Please Wait To Be Seated. " Another " Please

Wait To Be Seated " sign tops a pole at the front of the ve lvet -

roped area demarking the line for customers waiting to be seated.

13. To reinforce the message of its " Please Wait To Be

Seated " signs, Respondent places " Reserved " signs on each vacant

table. Respondent ' s witnesses acknowledged that these tables a re

not actually reserved in the traditional sense of being held for

a particular group with reservations, although tables may be held

for priority seating, a term used interchangeably with

reservations. 2/ But the signs are not used for that purpose;

inste ad, the signs are used as a means to discourage impatient

customers from trying to seat themselves despite being told to

wait to be seated.

14. Another seating policy employed by Respondent is

referred to as the 75 percent rule. Under this rule, unless a nd

until 75 percent of a group wanting to sit together at one table

is physically present at the restaurant, customers who are part

of the group are not seated and are not even put on a waiting

list nor provided a pager for a table. In other words, if two

customers tell the hostess that they are a part of a group of

four and are waiting for two other persons to arrive, those two

customers will not be seated at a table for four, nor will they

be put on the wait listing and given a pager for a table for

four . Respondent ' s witnesses credibly explained that this rule

served the purpose of maximizing use of available seating

capacity, which is particularly important on busy nights during

peak hours.

15. The night in question -- December 3, 2011 -- was a Saturday

night during tourist season. Petitioners decided to drive from

Tampa to Orlando, a prime tourist destination location, to return

to the BB King ' s restaurant they had previously enjoyed.

16. Petitioners did not make seating arrangements in

advance. Inste ad, on the way to the restaurant, Petitioner Beck

called BB King ' s on her cell phone to try to make reservations,

between one and two hours before Petitioners expected to arrive.

Petitioner Beck spoke with " Robbie, " who told her that she could

not make a reservation, but that they were welcome to walk in.

17. Respondent ' s witnesses credibly explained that by the

time Petitioners attempted to make seating arrangements, the

priority seating limits surely would have been reached. Thus, it

was reasonable and consistent with Respondent ' s seating policies

for Petitioner Beck to be told that she could not make a

reservation, but that they were welcome to walk in. Petitioner

Beck acknowledged that the person with whom she spoke did not

know the race or national origin of either Petitioner.

18. Petitioners proceeded on to BB King ' s, arriving between

8:00 p.m. and 9:00 p.m. The restaurant was very busy. In

addition to the normal crowds at this peak time, the restaurant

was hosting three special events for Nike: one Nike event was

for a group of 50 people, between 6:30 p.m. and 9:00 p.m.; the

second Nike event was for a group of 41 people, between 7:00 p.m.

and 9:00 p.m.; and the third Nike event was for another group of

50 people, between 7:30 p.m. and 10:30 p.m .

19. Petitioners checked in with the hostess at the front

reception station. Petitioners were greeted in a friendly manner

by the hostess and were given a pager that would signal when

their table was ready. Within five to ten minutes, the pager

signal was activated. Petitioners returned the pager to the

hostess, who turned Petitioners over to a runner, the BB King ' s

employee who escorts guests from the reception area to their

tables and provides them with menus and silverware. The runner

led Petitione rs to a table for two. However, Petitioners refused

the two - seater table offered to them, and informed the runner

that they needed a table for four, as they were waiting for

another couple who had not arrived yet. 3/

20. Petitioners must have told the ho stess that they were a

party of two, not four, when they first checked in, so as to be

put on the waiting list and given a pager for a two - seater table.

Petitioners failed to explain why they did not inform the hostess

upon checking in that they were wait ing for two more persons and

needed a table for four, instead of waiting until they saw the

table to which they were led to tell the runner that they

actually needed a table for four. The logical inference from

Petitioners ' description (and from Petitione r Beck ' s evasiveness

described in endnote 3) is that Petitioners developed the story

that they were expecting another couple after they were led to

the table for two, perhaps because they were not happy with the

location of the two - seater table and preferr ed the location of

the four - seater tables, or perhaps because they just wanted more

elbow room. The credibility of Petitioners ' story is undermined

by the following facts: Petitioner Mitchell admitted that there

was no set time established to meet this o ther couple at the

restaurant; the other couple that was supposed to meet

Petitioners never showed up during the hour that Petitioners

estimated they were at the restaurant in total; Petitioners did

not offer testimony by the other couple to corroborate th eir

story; and Petitioners did not even name the other couple when

asked in discovery for names of persons with knowledge of the

facts underlying Petitioners ' complaints.

21. Ironically, the new information that Petitioners were

waiting for another coupl e, belatedly offered to the runner in an

attempt to switch to a four - seater table, triggered the 75

percent rule, which ultimately was the source of Petitioners '

dissatisfaction. The credible evidence establishes that if

Petitioners had accepted the two - s eater table they were offered,

they would have been served, as they had been on prior occasions.

22. Instead, pursuant to the 75 percent rule, Petitioners

were escorted by the runner back to the reception area, and were

told to let the hostess know when the couple they were waiting

for had arrived. Petitioners asked to be put on the waiting list

and be issued a pager for a table for four, but the hostess

followed the 75 percent rule and reasonably refused to do so.

23. No evidence was offered to prove t hat the 75 percent

rule was used as a means to discriminate against Petitioners

because of their race or national origin. Petitioners offered no

evidence to prove that any other customers who did not have 75

percent of their group present were seated at t ables, or were put

on the waiting list and issued pagers. Petitioners offered no

evidence to prove that the 75 percent rule was not applied

uniformly to all other customers regardless of their race or

national origin. Petitioners offered no evidence that the 75

percent rule was waived for any customers who were not members of

Petitioners ' protected race or national origin classes.

24. After Petitioners were returned to the reception area

and told to let the hostess know when the rest of their party

arriv ed, Petitioners went to the bar area to wait. Petitioner

Beck ordered a drink, and was served without incident.

25. Petitioners observed an African - American couple seated

at a nearby table for four. When the African - American couple was

finishing their m eal and about to vacate their table, they asked

Petitioners if they wanted to be seated at the table, and

Petitioners gladly took them up on their offer.

26. The African - American couple who offered Petitioners

their table left and Petitioners remained sea ted at the table for

four. Petitioners did not have menus or silverware, because they

were not seated by a runner. A server approached the table, but

did not stop to take Petitioners ' orders. The server seemed

upset according to Petitioners, perhaps bec ause they had seated

themselves, contrary to Respondent ' s seating policies and

procedures. Then a different server came to the table.

According to Petitioners, that server took their orders for

drinks and dinner, and brought them drinks.

27. Petitioners believe that the first server must have

reported them to the hostess, because the same hostess who had

told Petitioners previously to wait until the rest of their group

arrived came over to tell Petitioners that they needed to get up

from the table.

28. Someone who Petitioners described as a manager also

came up to tell Petitioners that they needed to vacate the table

because the rest of their group had not arrived. At hearing,

Petitioners testified that they did not know the name of the

manager with who m they spoke.

29. Petitioners claim that they told the unidentified

manager that they should not have to leave the four - seater table,

pointing out that there was a Caucasian couple seated at a four -

seater table. According to Petitioners, the manager told them he

did not have the heart to ask the other couple to move.

Petitioner Beck testified that the manager made this comment

while Petitioners were waiting in the bar area before seating

themselves. Petitioner Mitchell, on the other hand, claimed that

th is conversation occurred after the manager asked them to get up

from the four - person table. Petitioners ' testimony in this

regard was not credible.

30. When Petitioners were asked to vacate the table from

which they had seated themselves, after arguing for a brief

period, Petitioners ultimately agreed to vacate the table. They

then decided to leave the restaurant. Apparently they were

allowed to leave without paying for the drinks they had ordered

and been served while seated at the table for four, and

apparently they abandoned the dinner orders they had placed.

31. It was clear from Petitioners ' testimony that they did

not understand Respondent ' s seating policies. Petitioners seemed

to be under the misimpression that Respondent had a policy

against seating couples at tables for four. Instead, according

to the credible testimony of Respondent ' s witnesses, couples are

often seated at tables for four early in the evening, but that as

the evening progresses into the peak hours, the hostess begins to

dir ect couples to two - seater tables, using the four - seater tables

for groups of three or four. This maximizes use of the available

seating, a reasonable and necessary policy for a busy

restaurant/entertainment venue. The testimony of Respondent ' s

witnesses was consistent in this regard, and included the

credible testimony of Ms. Olivo, who was the hostess on

December 3, 2011, but who has not worked for Respondent since

2012.

32. The credible evidence established that Petitioners were

asked to vacate the ta ble for four, not because there were only

two of them, but rather, because their story that they were

waiting for another couple triggered the 75 percent rule, and

because, after they were told to wait until the rest of their

group arrived, they chose to i gnore those instructions and seat

themselves.

33. Petitioners failed to prove that Respondent ' s practice

of sometimes seating couples at tables for four and sometimes

directing couples to tables for two was a choice made on the

basis of race or national o rigin, as opposed to a reasonable

judgment for maximizing use of seating capacity based on how busy

the restaurant is.

34. Petitioners acknowledged that the Caucasian couple they

claim to have pointed out to the manager was not the only couple

they observ ed seated at a table for four. To the contrary,

Petitioners admit that the couple who made the nice gesture that,

unfortunately, was contrary to Respondent ' s seating policies, of

offering Petitioners " their " table as they were getting up to

leave was an A frican - American couple.

35. Petitioners offered no evidence to prove how long

either the Caucasian couple or the African - American couple seated

at tables for four had been at the restaurant, whether they were

seated with all of their party present, wheth er they were waiting

for others to join them, or whether they had improperly seated

themselves. These couples might have arrived hours earlier, well

before the peak time, and lingered to enjoy their food and the

live entertainment. That Petitioners admit ted to having observed

both a Caucasian couple and an African - American couple at tables

for four is evidence that Respondent was not using its seating

policies as a means to discriminate, but rather, applied its

policies in a non - discriminatory manner to a ccommodate customers

both within and outside the protected classes who were not shown

to be similarly situated to Petitioners.

36. In fact, Petitioners admitted that when the two of them

previously visited Respondent ' s Orlando restaurant, they had been

se ated at tables for four.

37. Petitioners also contend that the unidentified manager

who asked them to vacate the table informed them that the table

was " reserved " for a group of three Caucasian customers who had

priority seating arrangements. According t o Petitioners, this

threesome arrived at the restaurant after Petitioners.

38. Petitioners do not contend that the three Caucasian

customers did not have 75 percent of their group present;

mathematically, the threesome being seated at a table for four

m ust have had at least 75 percent of their group present.

Moreover, Petitioners offered no evidence that the three

customers did not have priority seating arrangements.

Accordingly, Petitioners ' description does not support

Petitioners ' assertion of disc rimination, but rather, a

consistent application of Respondent ' s seating policies and

procedures. Petitioners were not entitled to be seated or to be

placed on a waiting list for a table for four, because their

claim to be waiting for another couple trigg ered the 75 percent

rule; Petitioners ignored the instructions to wait for the rest

of their group, and violated another seating policy by seating

themselves. Petitioners did not attempt to make seating

arrangements in time to secure priority seating, as the Caucasian

threesome apparently had done. Thus, the Caucasian threesome was

entitled to priority seating over walk - in customers on the

waiting list for a four - seater table. Petitioners had not yet

qualified to be placed on the walk - in waiting list. C onsistent

with Respondent ' s seating policies, Petitioners were properly

asked to vacate the table at which they had seated themselves.

39. As with the 75 percent rule, no credible evidence was

offered to prove or suggest that the do - not - seat - yourself rule ,

announced to all customers by the sign at the reception station,

was applied in a discriminatory fashion. Respondent ' s witnesses

credibly testified that it is common for customers to try to

skirt the seating policies by seating themselves when a table i s

vacated, particularly on a busy Saturday night, such as on

December 3, 2011. Management and staff are all on alert to look

for tell - tale signs, such as customers sitting at a table without

menus or silverware. When this occurs, the hostess or a manager

will inform these customers that they cannot seat themselves, and

they are asked to leave the table. The credible testimony

established that customers of all races and national origins are

asked to leave tables when they violate the seating policies by

s eating themselves.

40. Petitioners also argue that the use of the word

" reserved " on signs placed on tables is inconsistent with

Respondent ' s seating policy that does not allow tables to be

reserved in the traditional sense. However, Respondent

reasonabl y explained its seating policies and procedures,

including its use of the " reserved " signs. Whether Respondent ' s

seating policies are clear or confusing, good or bad, or make

sense to Petitioners are not questions for determination in this

proceeding. In stead, the question is whether Respondent ' s

actions taken pursuant to its seating policies and procedures

were motivated by intentional discrimination. Petitioners did

not prove that Respondent used " reserved " signs as a means to

discriminate against Peti tioners because of their race or

national origin.

41. Petitioners do not contend that they were subjected to

any form of direct discrimination, such as racial or ethnic slurs

or derogatory comments of any kind. Instead, Petitioners

Mitchell and Beck prov ed only that they are African - American and

Asian, respectively; that they could have enjoyed all of the

benefits offered at BB King ' s had they accepted the table for two

they were offered; that they were not seated at a table for four

because they claimed to be waiting for another couple to join

them; and that they were asked to leave a table at which they had

seated themselves. No credible proof was offered from which to

infer that Respondent ' s actions were motivated by intentional

discrimination based on race and national origin.

42. For reasons explained in a series of motions and Orders

(see endnote 1), the undersigned exercised the authority provided

in section 120.569(2)(f), Florida Statutes (2012), and Florida

Rule of Civil Procedure 1.380(b)(2), to assess costs against each

Petitioner in connection with sanctions imposed for their

discovery violations. By Order issued July 11, 2013, Petitioner

Mitchell was ordered to pay $1,067.50 to Respondent to reimburse

a portion of the reasonable attorney ' s fe es incurred in

attempting to obtain discovery and enforce orders compelling

discovery. By separate Order issued July 11, 2013, Petitioner

Beck was ordered to pay $1,098.00 to Respondent to reimburse a

portion of the reasonable attorney ' s fees incurred in attempting

to obtain discovery and enforce orders compelling discovery. As

of the final hearing, these assessments had not been paid.

CONCLUSIONS OF LAW

43. DOAH has jurisdiction of the subject matter of and the

parties to this proceeding. §§ 120.569, 1 20.57(1), and

760.11(6), Fla. Stat. (2013).

44. The Florida Civil Rights Act of 1992, codified in

chapter 760, Florida Statutes, prohibits discrimination in the

workplace and in places of public accommodation.

45. Section 760.08 proscribes discrimination in places of

public accommodation, as follows:

All persons shall be entitled to the full and

equal enjoyment of the goods, services,

facilities, privileges, advantages, and

accommodations of any place of public

accommodation, as defined in this chapter,

w ithout discrimination or segregation on the

ground of race, color, national origin, sex,

handicap, familial status, or religion.

46. Respondent is a " public accommodation, " as defined in

section 760.02(11), which provides in pertinent part:

" Public acco mmodations " means places of

public accommodation, lodgings, facilities

principally engaged in selling food for

consumption on the premises, gasoline

stations, places of exhibition or

entertainment, and other covered

establishments. Each of the following

e stablishments 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 cons umption on the premises, including,

but not limited to, any such facility located

on the premises of any retail establishment,

or any gasoline station.

(c) Any motion picture theater, theater,

concert hall, sports arena, stadium, or other

place of exhibi tion or entertainment.

47. BB King ' s sells food for consumption on the premises,

and it also provides entertainment. While no evidence was

offered to prove whether Respondent ' s primary business is selling

food or providing entertainment, that determinat ion need not be

made, because either way, BB King ' s is a public accommodation as

statutorily defined.

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

§ 2000a, prohibits discrimination in places of public

accommodation, in language identical t o that found in section

760.08, except for the omission of certain protected classes not

at issue in this case. Accordingly, federal cases interpreting

the similar federal civil rights law apply. See Fla. Dep ' t of

Cmty. Aff. v. Bryant , 586 So. 2d 1205, 1 209 (Fla. 1st DCA 1991).

49. Due to the relative lack of Title II cases, federal

courts routinely find guidance in the more extensive case law

developed under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000. Federal courts have extended to pu blic

accommodation cases the shifting - burden analysis adopted by the

U.S. Supreme Court for employment discrimination cases in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 - 804, 36 L.

Ed. 2d 668, 93 S. Ct. 1817 (1973). See Fahim v. Marriott Hotel

Se rvs. , 551 F.3d 344, 349 (5th Cir. 2008), and cases cited

therein. This same analysis has been adopted in FCHR public

accommodation cases. See, e.g. , Inman v. Jian Deng Bao, d/b/a

China Gardens Restaurant , Case No. 11 - 5602 (Fla. DOAH Feb. 12,

2012; Fla. C omm ' n on Hum. Rel. Apr. 23, 2012).

50. Under the McDonnell analysis as adapted to public

accommodation discrimination cases, Petitioners have the burden

of proving by a preponderance of the evidence a prima facie case

of unlawful discrimination. If Petit ioners establish a prima

facie case, then the burden shifts to Respondent to articulate

legitimate non - discriminatory reasons for the alleged

discriminatory conduct. If Respondent meets this burden, then

the burden shifts back to Petitioners to prove that the

articulated reasons are a mere pretext, and that the actions

were, in fact, motivated by unlawful discriminatory reasons.

Laroche v. Denny ' s Inc. , 62 F. Supp. 2d 1375, 1382 - 1383 (S.D.

Fla. 1999); Wells v. Burger King Corp. , 40 F. Supp. 2d 1366, 1368

(N.D. Fla. 1998).

51. " The ultimate burden is on [Petitioners] to prove that

they were the victims of intentional discrimination. " Laroche ,

62 F. Supp. 2d at 1383.

52. To establish a prima facie case, Petitioners must prove

the following: (1) Petitione rs are members of a protected class;

(2) Petitioners attempted to contract for services and to afford

themselves the full benefits and enjoyment of a public

accommodation; (3) Petitioners were denied the right to contract

for those services and, thus, wer e denied the full benefits or

enjoyment of a public accommodation; and (4) such services were

available to similarly situated persons outside the protected

class who received full benefits or enjoyment, or were treated

better. Laroche , 62 F. Supp. 2d at 1 382.

53. Petitioners proved, and Respondent did not dispute,

that they were members of protected racial and/or national origin

classes, in that Petitioner Mitchell is African - American and

Petitioner Beck is Asian.

54. Petitioners proved by a preponderanc e of the evidence

that they went to BB King ' s in Orlando for the purpose of

obtaining services and affording themselves full benefits and

enjoyment of this public accommodation. The undersigned

acknowledges the testimony of Respondent ' s three witnesses, a ll

of whom were on duty on December 3, 2011, during the time

Petitioners visited the restaurant, but none of whom recognized

the Petitioners or recalled any encounters with Petitioners that

night over seating arrangements. Nonetheless, as all witnesses

ac knowledged, the restaurant was very busy that night, and the

type of incident described by Petitioners, in which they were

asked to get up from a table at which they had seated themselves,

was a very common occurrence and not remarkable or memorable.

55. Although Petitioners met their burden of proving the

first two elements of their prima facie case, Petitioners failed

to meet their burden of proof with regard to the third and fourth

elements of their prima facie case.

56. Based on the findings of fact above, Petitioners did

not prove that they were denied the right to contract for

services and, thus, denied full benefits or enjoyment of BB

King ' s. Instead, the more credible evidence established that

Petitioners refused to accept the two - seater table o ffered to

them at which they would have been served. Petitioners

outsmarted themselves by inventing a story in an attempt to

receive preferential treatment over other customers, and when

Respondent ' s seating policies thwarted that attempt, Petitioners

vio lated another seating policy by improperly seating themselves

at a table at the suggestion of an African - American couple that

was vacating a table for four. Respondent ' s non - discriminatory

application of its seating policies and procedures did not deny

Pe titioners the right to contract for services at BB King ' s.

See, e.g. , Stevens v. Steak N Shake, Inc. , 35 F. Supp. 2d 882,

891 (M.D. Fla. 1998) ( " [S]ervice contingent on prepayment without

racial discrimination is not tantamount to a refusal of

service. " ). When Petitioners were told that they were required

to follow Respondent ' s seating policies by vacating the table at

which they seated themselves and waiting until the arrival of the

couple they claimed to be waiting for, Petitioners chose instead

to leav e voluntarily.

57. With regard to the fourth element of their prima facie

case, Petitioners failed to prove that any other customers at BB

King ' s that night were similarly situated, period. No evidence

was offered to prove that the 75 percent rule, which thwarted

Petitioners ' attempt to secure a better table, was waived for any

other customer, within or outside of Petitioners ' protected

classes. Moreover, no evidence was offered to prove that any

other customer, within or outside of Petitioners ' protecte d

classes, was permitted to violate the two different seating

policies by not waiting for 75 percent of their group and by

seating themselves and being allowed to remain at the table at

which they seated themselves. Accordingly, Petitioners

necessarily fa iled to prove that other similarly situated persons

not in the same protected classes were treated better than

Petitioners or were given full benefits or enjoyment of this

public accommodation while those same benefits/enjoyment were

denied to Petitioners.

58. If Petitioners had met their burden of proving a prima

facie case, Respondent articulated legitimate non - discriminatory

reasons for its actions, by explaining its reasonable seating

policies and procedures. Petitioners offered no evidence to

suggest that Respondent ' s seating policies and procedures were

mere pretexts.

59. Petitioners did not meet their ultimate burden of

proving that they were victims of intentional discrimination

based on their race and national origin. Instead, Petitioners

were subjected only to Respondent ' s reasonable seating policies

and procedures that were applied in a non - discriminatory fashion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED as follows:

In DOAH Case No. 12 - 3 992 , that the Florida Commission on

Human Relations enter a Final Order:

(1) dismissing the Petition for Relief filed by Petitioner

Freddie Mitchell; and

(2) assessing $1,067.50 against Petitioner Mitchell for

discovery violations, to be paid to R espondent, pursuant to the

Order entered on July 11, 2013; and

In DOAH Case No. 13 - 517 , that the Florida Commission on

Human Relations enter a Final Order:

(1) dismissing the Petition for Relief filed by Petitioner

Genevieve Abad Beck; and

(2) assessing $1,098.00 against Petitioner Beck for

discovery violations, to be paid to Respondent, pursuant to the

Order entered on July 11, 2013.

DONE AND ENTERED this 14th day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

E LIZABETH W. MCARTHUR

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

Divisio n of Administrative Hearings

this 14th day of May , 2014 .

ENDNOTE S

1/ Detailed accounts of Respondent ' s discovery efforts,

Petitioners ' failures to timely or completely respond, and the

resulting sanctions ultimately imposed are set forth in

Respondent ' s discovery - related motions to compel or for

sanctions, filed on February 26, 2013; March 5, 2013; April 10,

2013; April 11, 2013; and May 17, 2013; and in the following

Orders: Order issued on March 28, 2013 (compelling discovery

from Petitioner Mitchel l, issued after a telephonic motion

hearing); two Orders issued on April 12, 2013 (compelling

discovery from Petitioner Beck, and denying motion to dismiss as

discovery sanction, but granting motion for continuance and

giving Petitioners the opportunity to complete discovery

responses by April 30, 2013); Order issued on April 30, 2013

(granting motion for extension until May 10, 2013, to complete

discovery, filed by Petitioners ' new counsel, who was later

allowed to withdraw based on " irreconcilable differe nces " after

unsuccessfully attempting to complete discovery, serving only

incomplete responses after the extended deadline); Order issued

on June 5, 2013 (denying motion to dismiss, but imposing

discovery sanctions and assessing costs including attorney ' s fees

against Petitioners); and two Orders issued on July 13, 2013

(assessing costs against each Petitioner to reimburse Respondent

for a portion of its attorney ' s fees expense incurred in efforts

to obtain discovery). As the docket reflects, Petitioners n ever

responded in opposition to any of Respondent ' s motions to compel

discovery or to impose sanctions, nor did Petitioners file

written responses or objections to Respondent ' s cost affidavits,

as they were told to do if they disagreed.

2/ As a practical matter, the difference between priority seating

and traditional reservations is that priority seating affords

greater leeway for Respondent to guess wrong and plan for more

rapid turnover of table use than would be the case if customers

stay at tables lon ger than predicted. With traditional

reservations, a restaurant commits to having tables ready for

arriving guests with reservations, so that the restaurant might

plan conservatively for slower table turnover, erring on the side

of leaving tables empty lo nger. With priority seating, if

customers linger at a table longer than anticipated, Respondent

can still meet its priority seating commitment by giving arriving

priority - seating guests first - in - line status, with priority over

walk - ins for the next availa ble table.

3/ Petitioner Mitchell clearly recounted the facts regarding

their initial reception at BB King ' s, including checking in with

the hostess, being issued a pager, waiting five to ten minutes,

and then being led by a runner to a table for two, at which point

they refused the table and told the runner they needed a table

for four because they were waiting for another couple.

Petitioner Beck ' s testimony, however, was evasive; she was

unwilling to acknowledge that they had checked in with the

hostes s, had been given a pager, and were led to a table for two.

Yet, at the same time Petitioner Beck claimed to not know that

the runner was taking Petitioners to a table for two ( " [W]e don ' t

know where he ' s taking us " ), she admitted that she and Petitioner

Mitchell " mention[ed] that we need more -- a bigger table because

. . . two more people [were] coming. " (Tr. 105).

4/ Petitioners may have spoken with someone else whom they

inaccurately described as a manager, as they had similarly

described others who w ere not managers. For example, in

Petitioner Beck ' s P roposed R ecommended O rder, she stated that the

person with whom she spoke when she telephoned BB King ' s for

reservations was " the manager. " At hearing, Petitioner Beck said

that this person ' s name was Robbie. Respondent ' s records in

evidence confirm that an employee named Robbie was on duty

December 3, 2011, but he was a runner, not a manager.

COPIES FURNISHED:

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Nicole Alexandra Sbert, Esquire

Jackson Lewis LLP

Suite 1285

390 North Orange Avenue

Orlando, Florida 32802

Genevieve Abad Beck

4116 West Carmen Street

Tampa, Florida 33609

Freddie L. Mitchell

Post Office Box 23901

Tampa, Florida 33623 - 3901

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writ ten 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.