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.
Settled and/or Dismissed prior to entry of RO/FO on Monday, December 18, 2017.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8JAVIER A. MUNIZ - PAGAN,
13Petitioner,
14vs. Case No. 17 - 2653
20UNIVERSAL CITY DEVELOPMENT
23PARTNERS , d/b/a UNIVERSAL
26STUDIOS ORLANDO,
28Respondent.
29_______________________________/
30RECOMME NDED ORDER
33Pursuant to notice, a final hearing in this cause was held
44by video teleconference between sites in Orlando and Tallahassee,
53Florida, on August 25, 2017 , before Linzie F. Bogan,
62Administrative Law Judge of the Division of Administrative
70Hearing s.
72APPEARANCES
73For Petitioner: Javier A. Muniz - Pagan, pro se
824038 Montara Court
85Orlando, Florida 32817
88For Respondent: J. Lester Kaney, Esquire
94Law Office of J. Lester Kaney
100Post Office Box 731148
104Ormond Beach, Florida 32173 - 1148
110STATEMENT OF THE ISSUE
114W hether Respondent, a place of public accommodation, violated
123section 760.08, Florida Statutes, by denying Petitioner, a
131handicapped individual, acc ess to its amusement park ride queues
141due to PetitionerÓs use of an electric wheelchair.
149PRELIMINARY STATEMENT
151On or about October 10, 2016, Javier A. Muniz - Pagan
162(Petitioner) filed a public accommodation complaint of
169discrimination (Complaint) with the F lorida Commission on Human
178Relations (FCHR) alleging that he is a handicapped individual and
188was denied access to amusement park attraction queues owned and
198operated by Universal City Development Partners, d/b/a Universal
206Studios Orlando (Universal Studios /Respondent). On April 7,
2142017, the FCHR issued a Notice of Determination: No Reasonable
224Cause. On May 8, 2017, a Petition for Relief was filed, and the
237case was transmitted by FCHR to the Division of Administrative
247Hearings for final hearing.
251At the final hearing, Petitioner testified on his own behalf
261and called no other witnesses. Marian Adams was the only witness
272to testify on behalf of Respondent. Petitioner's Exhibits A
281through D were admitted into evidence. Respondent's Exhibits A
290through E w ere admitted in evidence.
297A Transcript of the final hearing was filed on September 7,
3082017. Neither party filed a proposed recommended order.
316FINDING S OF FACT
3201. Universal Studios is a public accommodation whose
328principal business activity consists of t he ownership, operation,
337and management of entertainment parks, resorts, and related
345facilities located in the Orlando, Florida, area.
3522. Petitioner is a 33 - year - old disabled male who uses an
366electric wheelchair for personal mobility. 1/ On or about
375Oct ober 10, 2016, Petitioner filed a charge of discrimination and
386claimed therein that ÐUniversal Studios did not allow [his]
395electric wheelchair to enter in line for attraction[s] or
404restaurant[s].Ñ
4053. According to the patron attendance log maintained by
414U niversal Studios, Petitioner was admitted to the theme park on
425July 9 and 11, 2016, and these are the only dates when Petitioner
438entered the theme park during the 12 - month period preceding the
450filing of the charge of discrimination. 2/
4574. On the dates in question, Petitioner was denied access
467to the following attractions: Skull Island : Reign of Kong; E.T.
478Adventure; Jurassic Park River Adventure; and Dudley Do - RightÓs
488Ripsaw Falls. According to Petitioner, Ð[i]n every single ride
497that I tried to enter, I was told power wheelchairs cannot be
509accommodated on the line because if they lose power, it could be
521a safety hazard.Ñ In other words, Petitioner was not allowed to
532join the queues for the designated attractions. Furthermore,
540according to Petitioner, R espondent makes the attraction queue a
550part of the entertainment experience and he believes that he
560should have the full benefit of the experience.
5685. Petitioner was given the option of accessing each
577attraction by transferring to a park - provided manual wheelchair
587but he refused to do so because the manual chair, when equipped
599with his personal seat cushion, does not provide the necessary
609level of support and stability that he prefers. Furthermore,
618Petitioner testified that he is unable to tolerate sitti ng in the
630type of wheelchair offered him by Respondent because the chair
640has a soft, unsupported seat surface which, after a period of
651extended use (i.e. , attraction queue wait times), causes him to
661experience physical pain. Petitioner does, however, own a manual
670wheelchair and there is no evidence that PetitionerÓs disability
679prevents him from using a manual wheelchair under certain
688circumstances.
6896. For the convenience of its patrons, Respondent publishes
698a RiderÓs Guide for Rider Safety and Guests wit h Disabilities
709(RiderÓs Guide). The RiderÓs Guide provides, in part, as
718follows:
719With the exception of the Hogwarts Express,
726none of the ride vehicles or attraction
733queues at Universal Orlando will accommodate
739Electric Convenience Vehicles (ECVs) or
744motor ized wheelchairs. At those rides which
751can accommodate manual wheelchairs, guests
756may transfer from their . . . motorized
764wheelchair into a manual wheelchair that is
771provided at each location. If you cannot
778transfer to a manual wheelchair, please see
785an attendant.
7877. RespondentÓs General Operating Procedure 8.3, Guests
794with Disabilities, provides that Ð[s]ome attractions are . . .
804completely wheelchair accessible, meaning the Guest would not
812have to transfer.Ñ 3/ Operating P rocedure 8.3 also notes, how ever,
824that Ð[e]lectric wheelchairs and ECVÓs cannot be accommodated on
833any ride vehicles at Universal Orlando.Ñ
8398. RespondentÓs O perating P rocedure 8.3 and its RiderÓs
849Guide, make clear that Respondent provides unrestricted access to
858its attraction queue s for patrons operating manual wheelchairs,
867and offers no access to its attraction queues for patrons
877operating electric wheelchairs. The operating procedure and
884RiderÓs Guide also demonstrate that Respondent considers electric
892wheelchairs and ECVs the sa me for purposes of barring access to
904its attraction queues.
9079. Marian Adams is senior manager of guest safety and
917American with Disabilities Act ( ADA ) compliance for Respondent.
927Ms. Adams testified that Respondent is concerned about the safety
937of all guests, and when considering the large number of guests
948that wait in attraction queues, and their close proximity to each
959other, Respondent decided to restrict the use of motorized
968wheelchairs and other electric convenience vehicles. Ms. Adams
976also testif ied that because of the close proximity of guests to
988one another in its attraction queues, Ðif for some reason the
999operator of [a] powered mobility device were to take a turn
1010indirectly [sic] or travel the powered mobility device faster
1019than the crowds are moving, then it causes a safety concern for
1031not only the surrounding guests, but for the operator of the
1042device.Ñ
104310. Regarding the issue of attraction access, Ms. Adams
1052testified that in instances where a guest refuses or is unable to
1064transfer to a man ual wheelchair, employees are instructed to
1074contact Ða team captain or a supervisorÑ who will meet with the
1086guest, explain RespondentÓs policy regarding powered mobility
1093devices, and offer the guest an alternative accommodation of
1102using the exit ramp to ac cess the attraction. While it is true
1115that the RiderÓs Guide instructs patrons who cannot transfer to a
1126manual wheelchair to Ðplease see an attendant,Ñ there is nothing
1137in the RiderÓs Guide which indicates that patrons who fit into
1148this classification can access attractions by using an
1156attractionÓs exit ramp.
115911. Petitioner testified that RespondentÓs employees never
1166offered exit ramp access as an accommodation, but instead simply
1176told him that he would not be able to use his electric wheelchair
1189in the attraction queue. PetitionerÓs testimony is consistent
1197with RespondentÓs policy of not allowing motorized/electric
1204wheelchairs in attraction queues. The evidence, however, is
1212inconclusive regarding whether Petitioner was offered the
1219opportunity to speak with a team captain or supervisor regarding
1229his issues of attraction queue access.
1235CONCLUSIONS OF LAW
123812. Petitioner has the burden of proving, by a
1247preponderance of the evidence, that Respondent unlawfully denied
1255his right to access amusement park ride queues as a result of his
1268use of an electric wheelchair. See § 120.57(1)(j), Fla. Stat.
1278(201 6 ). 4/
128213. Section 760.08 provides, in part, that all persons Ðare
1292entitled to the full and equal enjoyment of the . . . facilities
1305. . . of any place of public a ccommodation without discrimination
1317or segregation on the ground of . . . [a] handicap[.]Ñ
1328Petitioner is an individual with a handicap and Respondent is a
1339Ðplace of public accommodation.Ñ 5/
134414. FCHR and Florida courts have determined that federal
1353discri mination law should be used as guidance when construing
1363provisions of chapter 760. See, e.g. , Fla. State Univ. v. Sondel ,
1374685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Valenzuela v.
1386GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009).
139915. Titl e III of the ADA (Title III) provides, in part, that
1412Ð[n]o individual shall be discriminated against on the basis of
1422disability in the full and equal enjoyment of the goods, services,
1433facilities, privileges, advantages, or accommodations of any place
1441of pu blic accommodation by any person who owns, leases (or leases
1453to), or operates a place of public accommodation.Ñ 42 U.S.C. £
146412182(a) (1990). Congress directed the Department of Justice to
1473promulgate regulations applicable to facilities covered by
1480Title III. Id. £ 12186(b). ÐAs the agency directed by Congress
1491to issue implementing regulations, to render technical assistance
1499explaining the responsibilities of covered individuals and
1506institutions, and to enforce Title III in court, the DepartmentÓs
1516views are entitled to deference.Ñ Bragdon v. Abbott , 524 U.S.
1526624, 646, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998).
153816. Title 28 C.F.R. § 36.302(a), which is part of a series
1550of regulations promulgated by the Department of Justice, provides
1559as follows:
1561General . A public accommodation shall make
1568reasonable modifications in policies,
1572practices, or procedures, when the
1577modifications are necessary to afford goods,
1583services, facilities, privileges, advantages,
1587or accommodations to individuals with
1592disabilities, unl ess the public accommodation
1598can demonstrate that making the modifications
1604would fundamentally alter the nature of the
1611goods, services, facilities, privileges,
1615advantages, or accommodations.
161817. Title 28 C.F.R. § 36.311(a) provides as follows:
1627Use of wh eelchairs and manually - powered
1635mobility aids. A public accommodation shall
1641permit individuals with mobility disabilities
1646to use wheelchairs and manually - powered
1653mobility aids, such as walkers, crutches,
1659canes, braces, or other similar devices
1665designed for use by individuals with mobility
1672disabilities in any areas open to pedestrian
1679use.
168018. Title 28 C.F.R. £ 36.104 defines a wheelchair as Ða
1691manually - operated or power - driven device designed primarily for
1702use by an individual with a mobility disability fo r the main
1714purpose of indoor or of both indoor and outdoor locomotion.Ñ
1724Accordingly, the word Ðwheelchairs,Ñ as used in 28 C.F.R.
1734£ 36.311(a), Ðincorporates both the power - driven and manually -
1745operated varieties.Ñ Collins v. New Orleans Home for Incurabl es ,
1755CIVIL ACTION NO: 15 - 1468 SECTION: "J"(1), 2016 U.S. Dist. LEXIS
1768143235, at *10 (E.D. La. Oct. 14, 2016). See also Wheelchairs,
1779Mobility Aids, and Other Power - Driven Mobility Devices , U.S.
1789Department of Justice (Jan. 2014).
179419. To establish a prima f acie case in a typical public
1806accommodation case, a claimant must prove that: (1) he is a
1817member of a protected class (i.e., handicapped); (2) he attempted
1827to afford himself of the full benefits and enjoyment of the public
1839accommodation; (3) he was denied those benefits and enjoyments;
1848and (4) that similarly - situated persons outside the protected
1858class received full benefits and enjoyment, or were treated
1867better. See Afkhami v. Carnival Corp. , 305 F. Supp. 2d 1308, 1322
1879(S.D. Fla. 2004); Fahim v. Marriott Hotel Servs. , 551 F.3d 344,
1890349 (5th Cir. 2008), and cases cited therein. Petitioner has
1900established a prima facie case.
190520. Respondent defends against PetitionerÓs claim of
1912discrimination on the grounds that legitimate safety concerns
1920justify denying Petitioner's use of a power - driven wheelchair
1930while attempting to access its attraction queues. RespondentÓs
1938defense suffers from a fatal flaw in that Respondent treats a
1949power - driven wheelchair as if it is the type of device covered by
196328 C.F.R. § 36.31 1(b), which provides, in part, as follows:
1974Use of other power - driven mobility devices.
1982A public accommodation shall make reasonable
1988modifications in its policies, practices, or
1994procedures to permit the use of other power -
2003driven mobility devices by individ uals with
2010mobility disabilities, unless the public
2015accommodation can demonstrate that the class
2021of other power - driven mobility devices cannot
2029be operated in accordance with legitimate
2035safety requirements that the public
2040accommodation has adopted pursuant t o
2046§ 36.301(b).
2048Because a power - driven wheelchair is specifically covered by
205828 C.F.R. £ 36.311(a), the Ðlegitimate safety requirementsÑ
2066considerations are inapplicable because power - driven wheelchairs
2074are not included within the definition of Ðother pow er - driven
2086mobility devices.Ñ
208821. As previously noted, power - driven and manually operated
2098wheelchairs are synonymous for purposes of Title III, and, in
2108accordance with 28 C.F.R. § 36.311(a), a covered entity can avoid
2119making reasonable modification of its policies, practices, or
2127procedures to accommodate such devices only in instances where
2136the covered entity Ðcan demonstrate that making the modifications
2145would fundamentally alter the nature of the goods, services,
2154facilities, privileges, advantages, or ac commodationsÑ that it
2162offers. See PGA Tour, Inc. v. Martin , 532 U.S. 661, 121 S. Ct.
21751879, 149 L. Ed. 2d 904 (2001) (The use of a golf cart did not
2190fundamentally alter the nature of the PGA Tour, which requires
2200golfers to walk). Respondent offered no evi dence that would
2210support a finding that allowing power - driven wheelchairs in its
2221attraction queues would fundamentally alter the services,
2228facilities, privileges, advantages, or accommodations that it
2235provides to its patrons.
223922. ÐPublic accommodations m ust start by considering how
2248their facilities are used by non - disabled guests and then take
2260reasonable steps to provide disabled guests with a like
2269experience.Ñ Baughman v. Walt Disney World Co. , 685 F.3d 1131,
22791135 (9th Cir. 2012) (citing Spector v. Norw egian Cruise Line
2290Ltd. , 545 U.S. 119, 128 - 29, 125 S. Ct. 2169, 162 L. Ed. 2d 97
2306(2005)). In the absence of evidence that it would fundamentally
2316alter the nature of its services to allow attraction queue access
2327to patrons who operate power - driven wheelchai rs, RespondentÓs
2337practice of directing such patrons to the exit ramp seems to be
2349the practical equivalent of telling these patrons Ðto go around
2359to the back.Ñ Such a practice seems inconsistent with 28 C.F.R.
2370§ 36.311(a) , which requires that disabled indi viduals who use
2380wheelchairs, either power - driven or manually operated, be allowed
2390access to Ðany areas open to pedestrian use.Ñ
239823. Having considered all of the evidence of record, it is
2409reasonable to conclude that Petitioner was the victim of unlawful
2419d iscrimination.
2421RECOMMENDATION
2422Based on the foregoing Findings of Fact and Conclusions of
2432Law, it is RECOMMENDED that the Florida Commission on Human
2442Relations enter a final order:
24471. Finding that Universal City Development Partners, d/b/a
2455Universal Studi os Orlando, subjected Javier A. Muniz - Pagan to
2466unlawful discrimination in violation of the Florida Civil Rights
2475Act of 1992 by refusing to allow him to use his power - driven
2489wheelchair in attraction queues at its theme park; and
24982. Prohibiting any future acts of discrimination by
2506Universal City Development Partners, d/b/a Universal Studios
2513Orlando.
2514DONE AND ENTERED this 6th day of October , 2017 , in
2524Tallahassee, Leon County, Florida.
2528S
2529LINZIE F. BOGAN
2532Administrative Law Ju dge
2536Division of Administrative Hearings
2540The DeSoto Building
25431230 Apalachee Parkway
2546Tallahassee, Florida 32399 - 3060
2551(850) 488 - 9675
2555Fax Filing (850) 921 - 6847
2561www.doah.state.fl.us
2562Filed with the Clerk of the
2568Division of Administrative Hearings
2572this 6th day of October , 2017 .
2579ENDNOTE S
25811/ Petitioner testified that he suffers from a degenerative
2590disorder that causes limited mobility of his upper left extremity
2600Ðand no movement at all of [his] lower left extremity.Ñ
2610Respondent does not challenge PetitionerÓs claim of disability.
2618Also, the words Ðelectric wheelchair,Ñ Ðmotorized wheelchair,Ñ
2627and Ðpower - driven wheelchairÑ are used interchangeably throughout
2636this Recommended Order.
26392/ September 23, 2016, is the date when Petitioner signed the
2650charge of discri mination, and October 10, 2016, is the date that
2662the same was stamped filed by the Florida Commission on Human
2673Relations. RespondentÓs user log shows that Petitioner entered
2681the park on October 2, 2016, but this visit is not included in
2694the analysis of th e instant dispute because Petitioner, in the
2705charge of discrimination, identified July 2016 as the Ðdate most
2715recent discrimination took place.Ñ Additionally, Petitioner
2721complains of events (e.g. , restaurant access) occurring prior to
2730October 2015. Becau se these events were more than 365 days prior
2742to the date of filing the instant charge of discrimination, the
2753same are not considered. Section 760.11(1) provides that Ð[a]ny
2762person aggrieved by a violation of ss. 760.01 - 760.10 may file a
2775complaint with th e commission within 365 days of the alleged
2786violation . . . .Ñ
27913/ The RiderÓs Guide, with the exception of Hogwarts Express,
2801segregates the attractions into two groups. The first group
2810includes attractions that Ðare capable of allowing guests to
2819remain in their standard (manual) wheelchair throughout,Ñ and the
2829second group includes attractions that Ðhave been designed to
2838easily accommodate those transferring from their wheelchair to
2846the ride vehicle. Ñ
28504/ All subsequent references to Florida Statutes wi ll be to 201 6 ,
2863unless otherwise indicated.
28665/ Section 760.02(11) defines Ðpublic accommodationsÑ to include
2874Ðplaces of exhibition or entertainment.Ñ Respondent is included
2882within this definition.
2885COPIES FURNISHED:
2887Tammy S. Barton, Agency Clerk
2892Florid a Commission on Human Relations
2898Room 110
29004075 Esplanade Way
2903Tallahassee, Florida 32399
2906(eServed)
2907Javier A. Muniz - Pagan
29124038 Montara Court
2915Orlando, Florida 32817
2918(eServed)
2919J. Lester Kaney, Esquire
2923Law Office of J. Lester Kaney
2929Post Office Box 731148
2933Orm ond Beach, Florida 32173 - 1148
2940(eServed)
2941Cheyanne Costilla, General Counsel
2945Florida Commission on Human Relations
2950Room 110
29524075 Esplanade Way
2955Tallahassee, Florida 32399
2958(eServed)
2959NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2965All parties have the right to subm it written exceptions within
297615 days from the date of this Recommended Order. Any exceptions
2987to this Recommended Order should be filed with the agency that
2998will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 03/08/2018
- Proceedings: Errata to Respondent's, Universal Orlando, Exceptions to Administrative Law Judge's Order Closing File and Rejecting FCHR's Interlocutory Order Remanding Case to Administrative Law Judge filed.
-
PDF:
- Date: 03/08/2018
- Proceedings: Agency Final Order Awarding Affirmative Relief from an Unlawful Public Accomodations Practice filed.
-
PDF:
- Date: 12/18/2017
- Proceedings: Order Closing File and Rejecting FCHR's Interlocutory Order Remanding Case to Administrative Law Judge. CASE CLOSED.
-
PDF:
- Date: 12/13/2017
- Proceedings: Respondents, Universal Orlando, Exceptions to Recommended Order filed.
-
PDF:
- Date: 12/13/2017
- Proceedings: Interlocutory Order Remanding Case to Administrative Law Judge for Further Proceedings on Petition for Relief filed.
-
PDF:
- Date: 10/23/2017
- Proceedings: Universal Orlando's Notice of Filing Respondent's Exceptions to Recommended Order filed.
-
PDF:
- Date: 10/06/2017
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 09/07/2017
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
-
PDF:
- Date: 08/25/2017
- Proceedings: Universal Orlando's Notice of Filing Respondent's Final Hearing Exhibit E filed.
- Date: 08/25/2017
- Proceedings: CASE STATUS: Hearing Held.
- Date: 08/18/2017
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
-
PDF:
- Date: 08/16/2017
- Proceedings: Universal Orlando's Notice of Intent to Request a copy of the Transcript of the Final Hearing filed.
-
PDF:
- Date: 06/01/2017
- Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for August 25, 2017; 9:30 a.m.; Orlando and Tallahassee, FL).
-
PDF:
- Date: 05/31/2017
- Proceedings: Notice of Compliance with Order of May 30, 2017 on hearing availability filed.
-
PDF:
- Date: 05/31/2017
- Proceedings: Notice of Service of Petitioner's, Universal Orlando, First Interrogatories to Petitioner filed.
-
PDF:
- Date: 05/30/2017
- Proceedings: Order Granting Continuance (parties to advise status by June 8, 2017).
-
PDF:
- Date: 05/22/2017
- Proceedings: Universal Orlando's Motion to Reschedule Administrative Hearing filed.
-
PDF:
- Date: 05/19/2017
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for July 12, 2017; 9:30 a.m.; Orlando and Tallahassee, FL).
Case Information
- Judge:
- LINZIE F. BOGAN
- Date Filed:
- 05/08/2017
- Date Assignment:
- 05/09/2017
- Last Docket Entry:
- 03/08/2018
- Location:
- Orlando, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
Tammy S Barton, Agency Clerk
Address of Record -
J. Lester Kaney, Esquire
Address of Record -
Javier A Muniz-Pagan
Address of Record -
Tammy S. Barton, Agency Clerk
Address of Record