15-003620 Darrell Alford vs. Publix Pharmacy Status: Closed Recommended Order on Tuesday, February 2, 2016.

Summary: Under the facts of the case, grocery store was not a "public accomodation" pursuant to section 760.02(11); even if it were, Petitioner failed to prove discrimination due to race, color, sex or handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARRELL ALFORD ,

Petitioner,

vs. Case No . 15 - 3620

PUBLIX SUPER MARKETS, INC. ,

Respondent.

/

RECOMMENDED ORDER

A formal hearing was conducted in thi s case on November 16,

2015 , in Orlando , Florida, before Lawrence P. Stevenson, a duly -

designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Darrell Arnither Alford , pro se

13 61 Broken Pine Road

Deltona , Florida 32 725

For Respondent: Matthew D. Westerman , Esquire

Fisher & Phillips, LLP

Suite 2350

101 East Kennedy Boulevard

Tampa , Florida 33602

STATEMENT OF THE ISSUE

The issue is whether Respondent, Publix Super Markets, Inc.

(ÐPublixÑ) , violated s ection 760.08 , Florida Statutes (2014) , 1/

by discriminating against Petitioner b ased on h is race, color,

sex, and/or handicap .

PRELIMINARY STATEMENT

On or about December 8, 2014 , Petitioner , Darrell Alford

("Petitioner") , filed with the Florida Commission on Human

Relations ( "FCHR") a Public Accommodation Complaint of

Discrimination against Publix . Petitioner alleged that he had

been discriminated against pursuant to c hapter s 509 and 760,

Florida Statutes , as follows:

I am disabled , black male, and believe I was

discriminated against on the bases of race,

color, sex and disability/handicap by Publix

(pharmacy), store #0667. I was refused

service by the respondent on October 25,

2014. [2/] On this date, the pharmacy located

within the store denied me medication even

though I p rovided a valid script from my

doctor.

The FCHR investigated Petitioner's Complaint. In a letter

dated May 27, 2015 , the FCHR issued its determination that there

was no reasonable cause to believe that an unlawful public

accommodation practice occurred .

On June 22, 2015 , Petitioner timely filed a Petition for

Relief with the FCHR . On June 23, 2015 , the FCHR referred the

case to the Division of Administrative Hearings (" DOAH " ) . The

case was originally scheduled for hearing on September 1, 2015 .

One cont inuance w as granted. The hearing was ultimately held on

November 16, 2015 .

On July 30, 2015, Publix filed a Motion to Relinquish

Jurisdiction contending that Publix is not, and never has been,

a Ðpublic accommodationÑ as that term is defined in section

76 0 .02(11) . By Order dated August 21, 2015, the undersigned

denied the motion without prejudice to PublixÓ s ability to make

a factual showing at the final hearing in support of its

contention that it does not meet the statutory definition of a

Ðpublic accom modation.Ñ

At the hea ring, Petitioner testified on his own behalf .

Petitioner offered no exhibits . Respondent presented the

testimony of pharmacist , James MacDonald , and assistant store

manager , Christopher Bloyen. RespondentÓs Exhibit 1, a copy of

Peti tionerÓs prescription, was admitted into evidence.

The one - volume T ranscript of the hearing was filed at DOAH

on December 16, 2015. On December 21, 2 015 , Publix filed a

Motion for Extension of Time requesting a two - week extension of

the time for filing pr oposed recommended orders in light of the

impending holidays . By O rder dated December 22, 2015, the

motion was granted and the deadline was extended to January 11,

20 16. Both parties timely filed Proposed Recommended O rders on

January 11, 2016.

FINDING S OF FACT

1. Petitioner is a black male who lives in Deltona,

Florida. Despite the assertion in his Public Accommodation

Complaint of Discrimination , Petitioner offered no evidence that

he has a disability or handicap.

2. Petitioner testified that he ha d surgery for kidney

stones in Daytona Beach on October 20, 2014. RespondentÓs

urologist prescribed Percocet (oxycodone and acetaminophen) , a

controlled substance , to control RespondentÓs pain . The

prescription from PetitionerÓs urologist was not placed in

evidence.

3. On October 21, 2014, Petitioner went to the emergency

room at Fish Memorial Hospital in Orange City and , there , was

given a prescription for 12 tablets of Percocet. The

prescription directed that the medication be taken once every

six h ours, meaning that the emergency room ph ysician was

prescribing a three - day supply of Percocet. A copy of this

prescription was entered into evidence, and the parties agree

that this is the prescription that Petitioner later presented to

the Publix pharma cy.

4. Petitioner testified that his mother drove him to his

surgery and, apparently, to the emergency room. She placed the

prescription in her purse for safe keeping .

5. A few days later, when Petitioner wanted to get the

prescription filled, his mot her could not find the prescription.

Petitioner stated that his mother forgot that she had changed

purses. When she changed purses again a couple of weeks later,

PetitionerÓs mother found the prescription.

6. On November 15, 2014, Petitioner presented t he

emergency room prescription to the pharmacy technician at Publix

Store 0667 in Deltona . The technician was aware that the

pharmacist gave special scrutiny to emergency room

prescriptions. The technician therefore took the prescription

directly to the pharmacist, James MacDonald .

7. Mr. MacDonald was the pharmacy manager of Store 0667

and at the time of the events at issue had been a pharmacist for

23 years with no record of discipline against his license.

8. Mr. MacDonald testified that, as a gener al matter, he

performs a prospective drug utilization review on every

prescription. Simply put, this process insures that the

prescription is for a legitimate medical purpose and that it is

being filled for the person who presented it at the pharmacy.

9. Mr. MacDonald stated that he is not required to fill

every prescription that is presented to him and that he declines

to fill prescriptions seven to ten times per week. The chief

reasons for declining to fill prescriptions are the pharmacistÓs

inability to verify the prescription with the prescribing

physician and the pharmacistÓs determination that the

prescription calls for a type or quantity of a controlled

substance that is inappropriate to the patientÓs condition.

10 . Mr. MacDonald testified that du ring the two years

prior to November 2014, nearby pharmacies at CVS and Walgreens

had stopped filling prescriptions for controlled substances,

which placed an added burden on Publix to fill these

prescriptions. There were several doctors in the area writi ng

prescriptions for large amounts of controlled substances.

Mr. MacDonald was also being presented with many prescriptions

for controlled substances from people he did not know. All

these factors contributed to his caution in filling

prescriptions for c ontrolled substances.

11. Mr. MacDonald testified that a prescription from an

emergency room visit usually provides for enough medication to

get the patient through the emergency period, two or three days,

after which the patient is instructed to see his primary care

physician. Mr. MacDonald tended to decline to fill emergency

room prescriptions that were presented more than a few days

after the emergency room visit.

12. When the technician presented him with PetitionerÓs

prescription, Mr. MacDonald tol d the technician that he would

not fill it because it was more than three weeks old. The

technician walked to the front window to convey this response to

Petitioner, who did not take it well. Mr. MacDonald could hear

Petitioner raising his voice and so w ent to the front to speak

with Petitioner directly.

13. Mr. MacDonald testified that the pharmacy was very

busy, that he had customers ahead of Petitioner, and that having

to come around and deal personally with Petitioner was putting

him even farther beh ind in his work.

14 . Mr. MacDonald explained to Petitioner that the

prescription was issued by an emergency roo m physician and was

for a three - day supply of Percocet. He told Petitioner that he

would have filled the prescription if he had presented it within

a week of his emergency room visit, but that it was now three

weeks later and this was clearly no longer an emergency

situation.

15 . Petitioner testified that he told Mr. MacDonald that

the prescription had been mispla ced in his motherÓs purse.

Mr . MacDonald did not recall this explanation.

16. Mr. MacDonald offered to call the emergency room

physician and verify the prescription. Petitioner insisted that

Mr. MacDonald either call the physician or fill the prescription

immediately, and stated t hat he would not move from the pharmacy

window until Mr. MacDonald had co mplied with his ultimatum.

Mr. MacDonald stated that he had customers ahead of Petitioner

and could not drop everything to please him at that moment.

17. In light of PetitionerÓs persistence, Mr. MacDonald

reiterated his refusal to fill the prescription. He handed the

prescription back to Petitioner and threatened to call the

police if Petitioner did not leave. Petitioner was unmoved.

Mr. MacDonald did not call the police but di d page the assistant

store manager, Christopher Bloyen, to intercede in the

situation.

18. Mr. Bloyen testified that he came to the pharmacy. He

saw that Petitioner seemed very upset and was speaking very

loudly. Petitioner complained that Mr. MacDonald would not fill

his prescription. Mr. Bloyen spoke briefly with Mr. MacDonald ,

who explained why he was refusing to fill the prescription.

19. At the hearing, Mr. Bloyen explained that the pharmacy

in any Publix store is an autonomous department and that , as a

store manager, he lacks the training or expertise to second -

guess the decision of his pharmacist. Publix relies on the

professional expertise and discretion of its pharmacists to

determine whether or not to fill a prescription.

20. Mr. Bloyen info rmed Petitioner that he was going to

support the decision of Mr. MacDonald not to fill the

prescription. At this point, Petitioner left the store.

21. Neither Mr. MacDonald nor Mr. Bloyen had met

Petitioner before this incident. Petitioner did not discl ose to

them that he had any disability or handicap, and none was

visibly apparent.

22. Mr. MacDonald testified that his decision not to fill

PetitionerÓs prescription was not based on PetitionerÓs race,

color, or sex. In fact, Mr. MacDonald Ós initial dec ision not to

fill the prescription was made and announced to the technician

before Mr. MacDonald laid eyes on Petitioner . PetitionerÓs race,

color, sex , and alleged handicap or disability played no part in

Mr. MacDonaldÓs decision not to fill the prescrip tion.

23. Mr. MacDonald did not make any disparaging remarks

about Petitioner during their exchange, and no employee of Publix

made racially derogatory or racially related comments to

Petitioner.

24. Petitioner testified that he was able to get the

pre scription filled at a Winn - Dixie pharmacy shortly after this

incident. Therefore, Petitioner suffered no economic loss or

quantifiable damages as a result of PublixÓ s refusal to fill his

prescription. Petitioner testified that he seeks only an

apology fr om Publix.

25. Publix Store 0667 does not contain a restaurant or

lunch counter and there is no designated area for customers to

consume food on the premises. The store does contain a deli,

but the food items sold from the deli are not intended for on -

si te consumption at Publix. The store has no picnic tables or

other seating at which customers might consume food on the

premises.

26 . Petitioner offered no credible evidence disputing the

legitimate, non - discriminatory reasons given by Publix for

refusing to fill his prescription .

27 . Petitioner offered no credible evidence that the

stated reasons for not filling the prescription were a pretext

for discrimination based on PetitionerÓs race, color, sex,

handicap , or disability .

28 . Petitioner offered no credible evidence that Publix

discriminated against him in violation of s ection 760.08 .

CONCLUSIONS OF LAW

29 . 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. (2015).

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

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

prohibits discrimination in the workplace and in places of

public accommodation .

31 . Section 760.08 , titled ÐDi scrimination in places of

public accommodation,Ñ provides :

All persons are entitled to the full and

equal enjoyment of the goods, services,

facilities, privileges, advantages, and

accommodations of any place of public

accommodation without discrimination o r

segregation on the ground of race, color,

national origin, sex, pregnancy, handicap,

familial status, or religion.

32 . Section 760.02(11), provides the following definition:

ÐPublic accommodationsÑ means places of

public accommodation, lodgings, facili ties

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

establishments which serves the public is a

place of public accommo dation within the

meaning of this section:

(a) Any inn, hotel, motel, or other

establishment which provides lodging to

transient guests, other than an

establishment located within a building

which contains not more than four rooms for

rent or hire and wh ich is actually occupied

by the proprietor of such establishment as

his or her residence.

(b) Any restaurant, cafeteria, lunchroom,

lunch counter, soda fountain, or other

facility principally engaged in selling food

for consumption on the premises, inclu ding,

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 exhibition or entertainment.

(d) A ny 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 itself out as

serving patrons of such covered

establishment.

33. N ot all establishments that are open to the public

constitute places of Ðpublic accommodationÑ under the Act . See ,

e.g . , Baker v. Maycom Comm cÓn /Sprint - Nextel, Case No. 08 - 5809

( Fla. DOAH Dec . 22, 2008 ; Fla. FCHR Order No. 09 - 026, Mar . 16,

2009 ) ( fact that retail stores are not specifically listed in

s ection 760.02(11), Florida Statutes, reflects legislative

intent that the statute does not encompass such establishments ).

See also Sheely v. MRI Radiology Network, P.A. , 505 F.3d 1173,

1204 - 05 (11th Cir. 2007) (affirming dismissal of public

accommodation discrimination claim against a medical facility

because the Ðnarrow definition Ñ of Ðpublic accommodationÑ in

s ection 760.02(11), Florida Statutes, does not include medical

facilities) .

34. In Morales v. Winn - Dixie Stores, Inc., Case No. 81 -

5166 (F la. DOAH Dec. 24, 2008; FCHR Order No. 09 - 024 Mar . 16,

2009), the Commission held that a grocery store was not a place

of public accommodation under the facts presented. In that

c ase, the petitioner alleged that he was discriminated against

when attempting to pay for groceries at a Winn - Dixie grocery

store. The Commission adopted the administrative law j udgeÓs

conclusion of law that the grocery store was not subject to the

public accommodation requirements of the Act, though it did not

exclude the possibility that a grocery store could be a public

accommodation under a different set of facts .

35. In denying PublixÓ s Motion to Relinquish Jurisdiction,

the undersigned did not dire ctly reference Morales , but relied

on a similar rationale, having found cases in which the presence

of an Ðeating areaÑ inside or outside of a grocery store was

deemed sufficient to establish that the store was a public

accommodation. See Pena v. FredÓs S tores of Tenn., Inc . , 2009

U.S. Dist. LEXIS 121360, *1 - *2; Amiri v. Safeway, Inc. , 1999

U.S. Dist. LEXIS 933, *3 (D. D.C. 1999); Thomas v. Tops Friendly

Mkts. , 1997 U.S. Dist. LEXIS 15887 (N.D. N.Y. 1997). The motion

was denied without prejudice to Publix Ó s ability to develop

facts at the hearing sufficient to establish that Publix Store

0667 was not a public accommodation.

36. The evidence presented at the final hearing

established that Publix Store 0667 is not a Ðpublic

accommodationÑ for purposes of th e Act . The store does not

contain a Ðrestaurant, cafeteria, lunchroom, lunch counter, soda

fountain, or other facility principally engaged in selling food

for consumption on the premises . Ñ The store does not contain

any seating area that customers can us e to consume food on the

premises. All food sold at Publix Store 0667 is intended for

off - site consumption.

37. Based on the facts presented, Publix is not subject to

the public accommodation provisions of the Act and the Petition

for Relief should be di smissed.

38. In the alternative, if Publix were to be considered a

place of public accommodation, Petitioner has failed to

establish a prima facie case of discrimination under the Act.

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

§ 2000a, pr ohibits discrimination in places of public

accommodation, in language identical to that found in section

760.08, Florida Statutes, except for the omission of certain

protected classes, including hand icap. 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 Fahim 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.

40. Under the McDonnell analysis, as modified for the

context of discrimination in places of public accommodation,

Petitioner has the burden of establishing by a preponderance of

evidence a prima facie case of unlawful discrimination. If the

pri ma facie case is established, the burden shifts to Respondent

to rebut this preliminary showing by producing evidence that the

allegedly discriminatory action was taken for some legitimate,

non - discriminatory reason. If the Respondent rebuts the prima

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

preponderance of evidence that Respondent's offered reason was

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

reason for its action and that another motivating factor was

Petitioner' s protected characteristic.

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

public accommodation discrimination under section 760.08,

Petitioner must establish that: (1) he is a member of the

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

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

(4) the services w ere made available to similarly - situated

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

42. Petitioner has not proven a prima facie case of

unlawful public accommodation discrimination. Petitioner

established that he is a member of a protected group, in that he

is black. Petitioner offered no evidence to establish that he

is disabled or has a handicap, or that the alleged

discrimination was based on his sex. Assuming that Publix Store

0667 was a place of public accommodation, Petitioner did attempt

to avail himself of the services offered by the Publix pharmacy

and was denied those services.

43. However, Petitioner failed to establish that the

servi ces he sought were made availa ble to similarly - situated

persons outside his protected class. He offered no evidence

that any other patron of Publix was treated any better than he

was under similar circumstances. Having failed to establish th e

disparate t reatment element, Petitioner has not established a

prima facie case of public accommodation discrimination.

44 . Even if Petitioner had met his burden, Publix

presented evidence of legitimate, non - discriminatory reasons for

its refusal to fill PetitionerÓs prescription. Mr. MacDonald

testified that he decided to not fill the prescription because

it was from an emergency room and was more than three weeks

old. Mr. MacDonaldÓs decision was based on his long - standing

practice to not fill emergency room presc riptions that are more

than a week old. Mr. McDonald even offered to contact the

emergency room physician and perhaps fill the prescription at a

later time, but Petitioner refused his offer. Thus, Respondent

has established a legitimate, non - discriminato ry reason for

refusing to fill PetitionerÓs prescription.

45. Petitioner did not present any evidence t o establish

that PublixÓ s stated reason for its decision was merely pretext

for discrimination.

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 finding that Publix Super Markets, Inc. , is

not a public accommodation under the facts of this case or, in

the alternative, that Publix Super Mark ets, Inc. , did not commit

any unlawful acts of public accommodation discrimination and

dismissing the Petition for Relief filed in th is case .

DONE AND ENT ERED this 2nd day of February , 201 6 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 2nd day of February , 2016 .

ENDNOTES

1/ All references to Florida Statutes are to the 201 4 edition.

2/ At the hearing, Petitioner conceded that the date he

presented the prescription to t h e Publix pharmacy was

November 15, 2014.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Darrell Arnither Alford

1361 Broken Pine Road

Deltona, Flo rida 32725

(eServed)

Allison Allegood - Boyle, Esquire

Publix Market Grocery Stores

Post Office Box 407

Lakeland, Florida 33802

Matthew D. Westerman, Esquire

Fisher & Phillips , LLP

Suite 2350

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

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.