14-004457 Phyllis Phyl vs. Studio 6 Status: Closed Recommended Order on Wednesday, April 22, 2015.

Summary: Respondent, a public lodging establishment, did not unlawfully discriminate against Petitioner, who is African-American, when it was unable immediately to provide her a room two hours before check-in time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHYLLIS PHYL ,

Petitioner ,

vs.

Case No. 14 - 4457

G6 H OSPITIALITY ,LLC ,

d/b/a STUDIO 6 ,

Respondent. 1 /

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

March 18, 2015 , at sites in Tallahassee and West Palm Beach ,

Florida.

APPEARANCES

For Petitioner: Phyllis Phyl , pro se

6079 Boca Colony Drive, Unit 1012

Boca Raton, Florida 33433

For Respondent: Warren Astbury, Esquire

Ogletree, Deakins, Nash, Smoak

& Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, a public

lodging establishment , unlawfully discriminated against

Petitioner, who is African - American, by refusing to provide her

accommodations or service based upon race .

PRELIMINARY STATEMENT

In a Public Accommodation Complaint of Discrimination filed

with the Florida Commission on Human Relations ( " FCHR " ) on

May 5, 2014 , Petitioner Phyllis Phyl alleged that s he had been

discriminated against at Respondent 's hotel in P ompano Beach,

Florida. Specifically, Ms. Phyl complained that, because s he is

black, Respondent had refused to check her in as soon as she

arrived at the hotel, where she had a reservation for a two -

night stay beginning on February 22, 2014, claiming that no

rooms were available.

The FCHR investigated Ms. Phyl's complaint and, on

August 14, 20 14 , issued a notice stating that it had found " no

reasonable cause to believe that a public accommodation

violation occurred. " Thereafter, Ms. Phyl timely filed a

Petition for Relief with the FCHR in which she repeated her

allegation that Respondent had refused promptly to offer

accommodations or service based upon race.

On September 22, 2014 , the FCHR transferred the matter to

the Division of Administrative Hearings for further proceedings,

and an administrative law judge ( " ALJ " ) was assigned to the

case.

A fter a couple of continuances, the final hearing took

place on March 18, 2015, with both parties present. Petitioner

testified on her own behalf. Petit ioner's Exhibits D, F, G, I,

J, K, M, Q, X, and Y were received in evidence. Petitioner's

Exhibits H and R were offered and rejected as inadmissible

hearsay. Respondent called its employees Juan Carlos Villa and

Charles Carter as witnesses. Respondent's Exhibits 1 through 14

were admitted into evidence without objection.

The final hearing was transcribed, but neither party

ordered a transcript of the proceeding. Each side s ubmitted a

proposed recommended order before the deadline established at

the co nclusion of the hearing, which was March 30, 2015 .

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2014 Florida Statutes.

FINDINGS OF FACT

1. Petitioner Phyllis Phyl ("Phyl") is an African - American

woman who resides in Boca Raton, Florida.

2. Respondent G6 Hospitality, LLC , d/b/a Studio 6

("Studio 6") , is the owner and operator of the Studio 6 Extended

Stay Hotel located in Pompano Beach, Florida (the "Hotel") .

3. Phyl arrived at the Hotel at around 1:30 p.m. on

February 22, 2014. Previously, she had made a reservation for a

two - night stay, booking a nonsmoking room with a queen bed.

Phyl was aware that check - in time at the Hotel was 3:00 p.m.,

but she decided to take a chance that a room would be available

for earlier occupancy. When Phyl attempted to register,

however, the clerk informed Phyl that no rooms were available

for early check in.

4. Phyl elected to wait in her car, which was parked in

the Hotel's pa rking lot. From there, she watched a black man

enter the Hotel and walk out a few minutes later. Phyl assumed

that he, too, had been told that his room was not ready . She

did not , however, witness his attempt to check in (if that is

what occurred) , and therefore Phyl lacks personal knowledge of

this man's transaction with the Hotel, if any . 2 /

5. Unhappy, Phyl walked around the Hotel grounds and

peered through the window of an apparently vacant room, which

she determined, based on her observation, was clean and ready

for occupancy. Phyl might have been mistaken, for she could not

see, e.g., the bathroom, but even if her assumption were

correct , the fact is not probative of discriminatory intent.

This is because a room is not "available" for guest occu pancy at

this Hotel until after a manager has inspected the room, deemed

it "clean," and caused such information to be entered into the

Hotel's computer system, at which point the front - desk clerk is

on notice that the room is ready. Thus, there is a dela y

between the time the housekeeping staff finishes cleaning a room

and the time the front - desk cle rk is able to let the room to a

guest.

6. After peeking in the seemingly empty room, Phyl

returned to her car, and soon she noticed a white couple enter

the Hotel , from which they exited several minutes later. Phyl

did not witness the couple's activities inside the Hotel. The

man and woman got into their car and drove around the Hotel

premises. Phyl followed. She watch ed the couple park, leave

their car, and enter a room. She observed the man retrieve some

luggage and bring his bags to the room . Phyl assumed that this

couple had just checked in.

7. Phyl returned to the Hotel lobby and inquired again

about the availab ility of a room. This time the clerk told her

a room was ready. Phyl checked in at 2:09 p.m.

8. Phyl stayed two nights, as planned, and paid the rate

quoted in her reservation. When she checked out on

February 24, 2014, the clerk refunded the $25 se curity deposit

Phyl had given the Hotel at check in, which was required because

she wanted to pay cash for the room (and did). Phyl claims that

the clerk was rude to her, and so she left without taking a

receipt.

9. Hotel business records show that on Fe bruary 22, 2014,

no guest checked in between Phyl's arrival at 1:30 p.m. and

2:09 p.m., when she herself checked in. The white man who

(together with a female companion) seemed to have checked in

while Phyl was waiting actually had checked in earlier tha t day,

at 11:14 a.m. The undersigned rejects as unfounded Phyl's

contention that the Hotel's records are unreliable and possibly

fraudulent and instead accepts them as persuasive evidence.

Ultimate Factual Determinations

10 . At the material time, the Hotel was a " public lodging

establishment " within the reach of s ection 509.092, Florida

Statutes, and a "public accommodation" as that term is defined

in section 760.02(11). Thus, the Hotel is accountable to Phyl

for unlawful discrimination in violation of the Florida Civil

Rights Act if such occurred .

11. The greater weight of the evidence , however, fails to

establish that the Hotel refused accommodations or service to

Phyl , or otherwise unlawfully discrimina ted against her .

Rather, the Hotel provided Phyl the type of room she had

reserved, at the quoted rate, for the length of stay she

requested. Indeed, despite arriving 90 minutes before the

Hotel's published check - in time , Phyl was able to get a room

earl y , after waitin g little more than half an hour . The Hotel's

conduct, in this instance, cannot be faulted.

CONCLUSIONS OF LAW

12 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 120.569 and 120.57(1), Florida Statutes.

13 . Being a private enterprise , a hotel " has the right to

refuse accommodations or service to any person who is

objectionable or undesirable to the operator[.] " § 509.092,

Fla . Stat. Under the Florida Civil Rights Act, 3 / however, a

" public lodging establishment " may not refuse to serve any

person on the basis of " race, creed, color, sex, physical

disability, or national origin. " Id. " A person aggrieved by a

violation of [ s ect ion 509.092] or a violation of a rule adopted

[thereunder] has a right of action pursuant to s. 760.11. " Id.

1 4 . The term " public lodging establishment " as defined in

section 509.013 (4)(a)1., Florida Statutes, includes " any unit,

group of units, dwe lling, building, or group of buildings within

a single complex of buildings which is rented to guests more

than three times in a calendar year for periods of less than 30

days or 1 calendar month, whichever is less, or which is

advertised or held out to th e public as a place regularly rented

to guests . "

15 . The term "public accommodations" means " places of

public accommodation, lodgings, facilities principally engaged

in selling food for consumption on the premises, gasoline

stations, places of exhibiti on or entertainment, and other

covered establishments " and includes "[a] ny inn, hotel, motel,

or other establishment which provid es lodging to transient

guests." § 760.02(11)(a), Fla. Stat.

16 . As found, the Hotel was, in fact, both a public

lodging establishment and a public accommodation at all relevant

times .

17 . Section 760.08 provides as follows:

A ll persons shall be entitled to the full

and equal enjoyment of the goods, services,

facilities, privileges, advantages, and

accommodations of any pl ace 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.

1 8 . T he undersigned finds persuasive the opinion of a

federal district court sitting in Florida, which found, in a

case brought under Florida law involving the allegation that a

restaurant had discriminated against the African - American

plaintiffs by requiring p repayment for their meals, that the

substantive rights afforded under the state statute are informed

by the federal anti - discrimination laws after which the Florida

Civil Rights Act was patterned. See Stevens v. Steak n Shake,

Inc. , 35 F. Supp. 2d 882, 88 6 (M.D. Fla. 1998)( " [T]his Court

looks to established federal public accommodation law in order

to determine the meaning of the term ' such refusal may not be

based upon race, creed, [or] color . . . ' in Fla. Stat.

§ 509.092, and to determine the elements of [the plaintiffs ' ]

civil rights claims under the Florida Statute. " ); see also

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

1999)(in case where restaurant was alleged to have refused

service to black customers, court treated plaintiffs ' federal

and state law claims as having identical substantive elements) . 4 /

1 9 . The two federal statutes that guard against

discrimination in public accommodations, including hotels , are

Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a,

e t s e q. , and 42 U.S.C. § 1981. E.g. Stevens , 35 F. Supp. 2d at

886. As a practical matter, in race - based, refusal - to - serve

cases, courts usually draw no meaningful distinction between the

elements of a Title II claim, on the one hand, and a Section

1981 claim , on the other. E.g ., id. at 886 - 87; Laroche ,

62 F. Supp. 2d at 1382 - 83.

20 . In Stevens , the district court, following federal

precedents, held that to prevail under s ection 509.092, Florida

Statutes, a plaintiff must establish three elements: " 1.) that

she is a member of a protected class; 2.) that defendant

intended to discriminate against her on that basis; and 3.) that

defendant's racially discriminatory conduct abridged a right

enumerated in the statute. " Id. at 887.

21 . Other courts, includi ng the district court in Laroche ,

have found the familiar McDonnell Douglas framework of elements

and shifting burdens, 5 / which was fashioned for use in Title VII

litigation, to be applicable in public accommodation cases. The

McDonnell Douglas framework enables the plaintiff to make a

prima facie case without direct evidence of intent, which is

often unavailable. 6 /

22 . In Laroche , the court required the plaintiffs to

establish, as a prima facie showing of discrimination , that:

(1) they are members of a protected class;

(2) they attempted to contract for services

and to afford themselves the full benefits

and enjoyment of a public accommodation;

(3) they were denied the right to contract

for those services and, thus, were 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.

62 F. Supp. 2d at 1382; see also, e. g. , Fahim v. Marriott Hotel

Servs. , 551 F.3d 344, 350 (5th Cir. 2008) .

23 . Phyl failed to make o ut a prima facie case of

discrimination because she was not denied accommodations or

service. She did not even suffer slow or delayed service.

True, Phyl wa s not able to check in immediately upon her

arrival, and she did have to wait approximately a half an hour

for a room to become available. But t he Hotel checked Phyl in

nearly an hour before the published check - in time of 3:00 p.m.

Phyl knew that she was taking a chance in arriving early that

she would have to wait. Under the circumstances, any

inconvenience she suffered was entirely predictable.

24 . Moreover, t here is no persuasive evidence that the

Hotel had rooms available for early check in which i t withheld

from Phyl or let to other guests while making her wait. To the

contrary, the persuasive evidence establishes that no rooms were

available for occupancy at the moment Phyl arrived, and that as

soon as a room became available, about 30 minutes la ter, the

Hotel offered it to Phyl. Thus, even if Phyl had made a prima

facie case of discrimination, which she did not, the Hotel

articulated a legitimate, nondiscriminatory reason for the

"delayed" service that the undersigned has found to be credible

an d nonpretextual .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing Phyl's Petition for

Relief.

DONE AND ENTERED this 22nd day of April , 20 15 , in

Tallahassee, Leon County, Florida.

S

____________________________________

JOHN G. VAN LANINGHAM

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 22nd day of April , 20 15 .

ENDNOTES

1 / The undersigne d has amended the style of the case to identify

Respondent by its correct corporate name .

2 / Phyl did not adduce any nonhearsay evidence at hearing to

substantiate her assumption that the Hotel made another person

of color wait for a room.

3 / The Florida Civil Rights Act comprises s ections 760.01 - 760.11

and 509.092, Florida Statutes. § 760.01(1), Fla . Stat.

4 / This approach is in accord with the rule that federal anti -

discrimination laws may properly be used for guidance in

evaluating t he merits of claims arising under s ection 760.10,

Florida Statutes. See Brand v. Fla . Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); Fl a . Dep 't of Cm ty. Aff . v.

Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

5 / In McDonnell Douglas Corp. v. Green , 4 11 U.S. 792, 802 - 03

(1973), the Supreme Court of the United States articulated a

burden of proof scheme for cases involving allegations of

discrimination under Title VII, where the plaintiff relies upon

circumstantial evidence. See also, e.g. , St. Mary ' s Honor

Center v. Hicks , 509 U.S. 502, 506 - 07 (1993).

Pursuant to this analysis, the plaintiff has the initial

burden of establishing by a preponderance of the evidence a

prima facie case of unlawful discrimination. Failure to

establish a prima fac ie case of discrimination ends the inquiry.

See Ratliff v. State , 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA),

aff ' d , 679 So. 2d 1183 (1996)( citing Arnold v. Burger Queen

Sys . , 509 So. 2d 958 (Fla. 2d DCA 1987)).

If, however, the plaintiff succeeds in making a prima facie

case, then the burden shifts to the defendant to articulate some

legitimate, nondiscriminatory reason for its complained - of

conduct. If the defendant carries this burden of rebutting the

plaintiff ' s prima facie case, then the plaintif f must

demonstrate that the proffered reason was not the true reason

but merely a pretext for discrimination. McDonnell Douglas ,

411 U.S. at 802 - 03; Hicks , 509 U.S. at 506 - 07.

In Hicks , the Court stressed that even if the trier of fact

were to reject as incredible the reason put forward by the

defendant in justification for its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question whether the de fendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. " It is not

enough, in other words, to dis believe the employer; the

factfinder must believe the plaintiff ' s explanation of

intentional discrimination. " Id. at 519.

6 / Direct e vidence is evidence that, if believed, would prove

the existence of discriminatory intent without resort to

inference or presumption. Denney v. The City of Albany ,

247 F.3d 1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115

F.3d 1555, 1561 (11th Cir. 19 97).

COPIES FURNISHED :

Phyllis Phyl

6079 Boca Colony Drive, Unit 1012

Boca Raton, Florida 33433

(eServed)

Warren Astbury, Esquire

Ogletree, Deakins, Nash, Smoak

& Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa, Florida 33602

(eServed)

Farah Bhayani, Esquire

G6 Hospitality , LLC

4001 International Parkway

Carrollton, TX 75007

Tammy Scott Barton , Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cheyanne M. Costill a , General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.