17-002653 Javier A. Muniz-Pagan vs. Universal City Development Partners, D/B/A Universal Studios Orlando Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, December 18, 2017.

Summary: Respondent unlawfully discriminated against Petitioner because of his disability by refusing to allow Petitioner to use his electric wheelchair to access attraction queues.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAVIER A. MUNIZ - PAGAN,

Petitioner,

vs. Case No. 17 - 2653

UNIVERSAL CITY DEVELOPMENT

PARTNERS , d/b/a UNIVERSAL

STUDIOS ORLANDO,

Respondent.

_______________________________/

RECOMME NDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between sites in Orlando and Tallahassee,

Florida, on August 25, 2017 , before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearing s.

APPEARANCES

For Petitioner: Javier A. Muniz - Pagan, pro se

4038 Montara Court

Orlando, Florida 32817

For Respondent: J. Lester Kaney, Esquire

Law Office of J. Lester Kaney

Post Office Box 731148

Ormond Beach, Florida 32173 - 1148

STATEMENT OF THE ISSUE

W hether Respondent, a place of public accommodation, violated

section 760.08, Florida Statutes, by denying Petitioner, a

handicapped individual, acc ess to its amusement park ride queues

due to PetitionerÓs use of an electric wheelchair.

PRELIMINARY STATEMENT

On or about October 10, 2016, Javier A. Muniz - Pagan

(Petitioner) filed a public accommodation complaint of

discrimination (Complaint) with the F lorida Commission on Human

Relations (FCHR) alleging that he is a handicapped individual and

was denied access to amusement park attraction queues owned and

operated by Universal City Development Partners, d/b/a Universal

Studios Orlando (Universal Studios /Respondent). On April 7,

2017, the FCHR issued a Notice of Determination: No Reasonable

Cause. On May 8, 2017, a Petition for Relief was filed, and the

case was transmitted by FCHR to the Division of Administrative

Hearings for final hearing.

At the final hearing, Petitioner testified on his own behalf

and called no other witnesses. Marian Adams was the only witness

to testify on behalf of Respondent. Petitioner's Exhibits A

through D were admitted into evidence. Respondent's Exhibits A

through E w ere admitted in evidence.

A Transcript of the final hearing was filed on September 7,

2017. Neither party filed a proposed recommended order.

FINDING S OF FACT

1. Universal Studios is a public accommodation whose

principal business activity consists of t he ownership, operation,

and management of entertainment parks, resorts, and related

facilities located in the Orlando, Florida, area.

2. Petitioner is a 33 - year - old disabled male who uses an

electric wheelchair for personal mobility. 1/ On or about

Oct ober 10, 2016, Petitioner filed a charge of discrimination and

claimed therein that ÐUniversal Studios did not allow [his]

electric wheelchair to enter in line for attraction[s] or

restaurant[s].Ñ

3. According to the patron attendance log maintained by

U niversal Studios, Petitioner was admitted to the theme park on

July 9 and 11, 2016, and these are the only dates when Petitioner

entered the theme park during the 12 - month period preceding the

filing of the charge of discrimination. 2/

4. On the dates in question, Petitioner was denied access

to the following attractions: Skull Island : Reign of Kong; E.T.

Adventure; Jurassic Park River Adventure; and Dudley Do - RightÓs

Ripsaw Falls. According to Petitioner, Ð[i]n every single ride

that I tried to enter, I was told power wheelchairs cannot be

accommodated on the line because if they lose power, it could be

a safety hazard.Ñ In other words, Petitioner was not allowed to

join the queues for the designated attractions. Furthermore,

according to Petitioner, R espondent makes the attraction queue a

part of the entertainment experience and he believes that he

should have the full benefit of the experience.

5. Petitioner was given the option of accessing each

attraction by transferring to a park - provided manual wheelchair

but he refused to do so because the manual chair, when equipped

with his personal seat cushion, does not provide the necessary

level of support and stability that he prefers. Furthermore,

Petitioner testified that he is unable to tolerate sitti ng in the

type of wheelchair offered him by Respondent because the chair

has a soft, unsupported seat surface which, after a period of

extended use (i.e. , attraction queue wait times), causes him to

experience physical pain. Petitioner does, however, own a manual

wheelchair and there is no evidence that PetitionerÓs disability

prevents him from using a manual wheelchair under certain

circumstances.

6. For the convenience of its patrons, Respondent publishes

a RiderÓs Guide for Rider Safety and Guests wit h Disabilities

(RiderÓs Guide). The RiderÓs Guide provides, in part, as

follows:

With the exception of the Hogwarts Express,

none of the ride vehicles or attraction

queues at Universal Orlando will accommodate

Electric Convenience Vehicles (ECVs) or

motor ized wheelchairs. At those rides which

can accommodate manual wheelchairs, guests

may transfer from their . . . motorized

wheelchair into a manual wheelchair that is

provided at each location. If you cannot

transfer to a manual wheelchair, please see

an attendant.

7. RespondentÓs General Operating Procedure 8.3, Guests

with Disabilities, provides that Ð[s]ome attractions are . . .

completely wheelchair accessible, meaning the Guest would not

have to transfer.Ñ 3/ Operating P rocedure 8.3 also notes, how ever,

that Ð[e]lectric wheelchairs and ECVÓs cannot be accommodated on

any ride vehicles at Universal Orlando.Ñ

8. RespondentÓs O perating P rocedure 8.3 and its RiderÓs

Guide, make clear that Respondent provides unrestricted access to

its attraction queue s for patrons operating manual wheelchairs,

and offers no access to its attraction queues for patrons

operating electric wheelchairs. The operating procedure and

RiderÓs Guide also demonstrate that Respondent considers electric

wheelchairs and ECVs the sa me for purposes of barring access to

its attraction queues.

9. Marian Adams is senior manager of guest safety and

American with Disabilities Act ( ADA ) compliance for Respondent.

Ms. Adams testified that Respondent is concerned about the safety

of all guests, and when considering the large number of guests

that wait in attraction queues, and their close proximity to each

other, Respondent decided to restrict the use of motorized

wheelchairs and other electric convenience vehicles. Ms. Adams

also testif ied that because of the close proximity of guests to

one another in its attraction queues, Ðif for some reason the

operator of [a] powered mobility device were to take a turn

indirectly [sic] or travel the powered mobility device faster

than the crowds are moving, then it causes a safety concern for

not only the surrounding guests, but for the operator of the

device.Ñ

10. Regarding the issue of attraction access, Ms. Adams

testified that in instances where a guest refuses or is unable to

transfer to a man ual wheelchair, employees are instructed to

contact Ða team captain or a supervisorÑ who will meet with the

guest, explain RespondentÓs policy regarding powered mobility

devices, and offer the guest an alternative accommodation of

using the exit ramp to ac cess the attraction. While it is true

that the RiderÓs Guide instructs patrons who cannot transfer to a

manual wheelchair to Ðplease see an attendant,Ñ there is nothing

in the RiderÓs Guide which indicates that patrons who fit into

this classification can access attractions by using an

attractionÓs exit ramp.

11. Petitioner testified that RespondentÓs employees never

offered exit ramp access as an accommodation, but instead simply

told him that he would not be able to use his electric wheelchair

in the attraction queue. PetitionerÓs testimony is consistent

with RespondentÓs policy of not allowing motorized/electric

wheelchairs in attraction queues. The evidence, however, is

inconclusive regarding whether Petitioner was offered the

opportunity to speak with a team captain or supervisor regarding

his issues of attraction queue access.

CONCLUSIONS OF LAW

12. Petitioner has the burden of proving, by a

preponderance of the evidence, that Respondent unlawfully denied

his right to access amusement park ride queues as a result of his

use of an electric wheelchair. See § 120.57(1)(j), Fla. Stat.

(201 6 ). 4/

13. Section 760.08 provides, in part, that all persons Ðare

entitled to the full and equal enjoyment of the . . . facilities

. . . of any place of public a ccommodation without discrimination

or segregation on the ground of . . . [a] handicap[.]Ñ

Petitioner is an individual with a handicap and Respondent is a

Ðplace of public accommodation.Ñ 5/

14. FCHR and Florida courts have determined that federal

discri mination law should be used as guidance when construing

provisions of chapter 760. See, e.g. , Fla. State Univ. v. Sondel ,

685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009).

15. Titl e III of the ADA (Title III) provides, in part, that

Ð[n]o individual shall be discriminated against on the basis of

disability in the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, or accommodations of any place

of pu blic accommodation by any person who owns, leases (or leases

to), or operates a place of public accommodation.Ñ 42 U.S.C. £

12182(a) (1990). Congress directed the Department of Justice to

promulgate regulations applicable to facilities covered by

Title III. Id. £ 12186(b). ÐAs the agency directed by Congress

to issue implementing regulations, to render technical assistance

explaining the responsibilities of covered individuals and

institutions, and to enforce Title III in court, the DepartmentÓs

views are entitled to deference.Ñ Bragdon v. Abbott , 524 U.S.

624, 646, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998).

16. Title 28 C.F.R. § 36.302(a), which is part of a series

of regulations promulgated by the Department of Justice, provides

as follows:

General . A public accommodation shall make

reasonable modifications in policies,

practices, or procedures, when the

modifications are necessary to afford goods,

services, facilities, privileges, advantages,

or accommodations to individuals with

disabilities, unl ess the public accommodation

can demonstrate that making the modifications

would fundamentally alter the nature of the

goods, services, facilities, privileges,

advantages, or accommodations.

17. Title 28 C.F.R. § 36.311(a) provides as follows:

Use of wh eelchairs and manually - powered

mobility aids. A public accommodation shall

permit individuals with mobility disabilities

to use wheelchairs and manually - powered

mobility aids, such as walkers, crutches,

canes, braces, or other similar devices

designed for use by individuals with mobility

disabilities in any areas open to pedestrian

use.

18. Title 28 C.F.R. £ 36.104 defines a wheelchair as Ða

manually - operated or power - driven device designed primarily for

use by an individual with a mobility disability fo r the main

purpose of indoor or of both indoor and outdoor locomotion.Ñ

Accordingly, the word Ðwheelchairs,Ñ as used in 28 C.F.R.

£ 36.311(a), Ðincorporates both the power - driven and manually -

operated varieties.Ñ Collins v. New Orleans Home for Incurabl es ,

CIVIL ACTION NO: 15 - 1468 SECTION: "J"(1), 2016 U.S. Dist. LEXIS

143235, at *10 (E.D. La. Oct. 14, 2016). See also Wheelchairs,

Mobility Aids, and Other Power - Driven Mobility Devices , U.S.

Department of Justice (Jan. 2014).

19. To establish a prima f acie case in a typical public

accommodation case, a claimant must prove that: (1) he is a

member of a protected class (i.e., handicapped); (2) he attempted

to afford himself of the full benefits and enjoyment of the public

accommodation; (3) he was denied those benefits and enjoyments;

and (4) that similarly - situated persons outside the protected

class received full benefits and enjoyment, or were treated

better. See Afkhami v. Carnival Corp. , 305 F. Supp. 2d 1308, 1322

(S.D. Fla. 2004); Fahim v. Marriott Hotel Servs. , 551 F.3d 344,

349 (5th Cir. 2008), and cases cited therein. Petitioner has

established a prima facie case.

20. Respondent defends against PetitionerÓs claim of

discrimination on the grounds that legitimate safety concerns

justify denying Petitioner's use of a power - driven wheelchair

while attempting to access its attraction queues. RespondentÓs

defense suffers from a fatal flaw in that Respondent treats a

power - driven wheelchair as if it is the type of device covered by

28 C.F.R. § 36.31 1(b), which provides, in part, as follows:

Use of other power - driven mobility devices.

A public accommodation shall make reasonable

modifications in its policies, practices, or

procedures to permit the use of other power -

driven mobility devices by individ uals with

mobility disabilities, unless the public

accommodation can demonstrate that the class

of other power - driven mobility devices cannot

be operated in accordance with legitimate

safety requirements that the public

accommodation has adopted pursuant t o

§ 36.301(b).

Because a power - driven wheelchair is specifically covered by

28 C.F.R. £ 36.311(a), the Ðlegitimate safety requirementsÑ

considerations are inapplicable because power - driven wheelchairs

are not included within the definition of Ðother pow er - driven

mobility devices.Ñ

21. As previously noted, power - driven and manually operated

wheelchairs are synonymous for purposes of Title III, and, in

accordance with 28 C.F.R. § 36.311(a), a covered entity can avoid

making reasonable modification of its policies, practices, or

procedures to accommodate such devices only in instances where

the covered entity Ðcan demonstrate that making the modifications

would fundamentally alter the nature of the goods, services,

facilities, privileges, advantages, or ac commodationsÑ that it

offers. See PGA Tour, Inc. v. Martin , 532 U.S. 661, 121 S. Ct.

1879, 149 L. Ed. 2d 904 (2001) (The use of a golf cart did not

fundamentally alter the nature of the PGA Tour, which requires

golfers to walk). Respondent offered no evi dence that would

support a finding that allowing power - driven wheelchairs in its

attraction queues would fundamentally alter the services,

facilities, privileges, advantages, or accommodations that it

provides to its patrons.

22. ÐPublic accommodations m ust start by considering how

their facilities are used by non - disabled guests and then take

reasonable steps to provide disabled guests with a like

experience.Ñ Baughman v. Walt Disney World Co. , 685 F.3d 1131,

1135 (9th Cir. 2012) (citing Spector v. Norw egian Cruise Line

Ltd. , 545 U.S. 119, 128 - 29, 125 S. Ct. 2169, 162 L. Ed. 2d 97

(2005)). In the absence of evidence that it would fundamentally

alter the nature of its services to allow attraction queue access

to patrons who operate power - driven wheelchai rs, RespondentÓs

practice of directing such patrons to the exit ramp seems to be

the practical equivalent of telling these patrons Ðto go around

to the back.Ñ Such a practice seems inconsistent with 28 C.F.R.

§ 36.311(a) , which requires that disabled indi viduals who use

wheelchairs, either power - driven or manually operated, be allowed

access to Ðany areas open to pedestrian use.Ñ

23. Having considered all of the evidence of record, it is

reasonable to conclude that Petitioner was the victim of unlawful

d iscrimination.

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:

1. Finding that Universal City Development Partners, d/b/a

Universal Studi os Orlando, subjected Javier A. Muniz - Pagan to

unlawful discrimination in violation of the Florida Civil Rights

Act of 1992 by refusing to allow him to use his power - driven

wheelchair in attraction queues at its theme park; and

2. Prohibiting any future acts of discrimination by

Universal City Development Partners, d/b/a Universal Studios

Orlando.

DONE AND ENTERED this 6th day of October , 2017 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Ju dge

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

Division of Administrative Hearings

this 6th day of October , 2017 .

ENDNOTE S

1/ Petitioner testified that he suffers from a degenerative

disorder that causes limited mobility of his upper left extremity

Ðand no movement at all of [his] lower left extremity.Ñ

Respondent does not challenge PetitionerÓs claim of disability.

Also, the words Ðelectric wheelchair,Ñ Ðmotorized wheelchair,Ñ

and Ðpower - driven wheelchairÑ are used interchangeably throughout

this Recommended Order.

2/ September 23, 2016, is the date when Petitioner signed the

charge of discri mination, and October 10, 2016, is the date that

the same was stamped filed by the Florida Commission on Human

Relations. RespondentÓs user log shows that Petitioner entered

the park on October 2, 2016, but this visit is not included in

the analysis of th e instant dispute because Petitioner, in the

charge of discrimination, identified July 2016 as the Ðdate most

recent discrimination took place.Ñ Additionally, Petitioner

complains of events (e.g. , restaurant access) occurring prior to

October 2015. Becau se these events were more than 365 days prior

to the date of filing the instant charge of discrimination, the

same are not considered. Section 760.11(1) provides that Ð[a]ny

person aggrieved by a violation of ss. 760.01 - 760.10 may file a

complaint with th e commission within 365 days of the alleged

violation . . . .Ñ

3/ The RiderÓs Guide, with the exception of Hogwarts Express,

segregates the attractions into two groups. The first group

includes attractions that Ðare capable of allowing guests to

remain in their standard (manual) wheelchair throughout,Ñ and the

second group includes attractions that Ðhave been designed to

easily accommodate those transferring from their wheelchair to

the ride vehicle. Ñ

4/ All subsequent references to Florida Statutes wi ll be to 201 6 ,

unless otherwise indicated.

5/ Section 760.02(11) defines Ðpublic accommodationsÑ to include

Ðplaces of exhibition or entertainment.Ñ Respondent is included

within this definition.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florid a Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Javier A. Muniz - Pagan

4038 Montara Court

Orlando, Florida 32817

(eServed)

J. Lester Kaney, Esquire

Law Office of J. Lester Kaney

Post Office Box 731148

Orm ond Beach, Florida 32173 - 1148

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to subm it 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.