18-002241 Shirley P. Williams vs. Townsend Seafood Status: Closed Recommended Order on Friday, July 13, 2018.

Summary: Petitioner did not prove that Respondent committed an act of discrimination in a place of public accommodation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY P. WILLIAMS,

Petitioner,

vs. Case No. 18 - 2241

TOWNSEND SEAFOOD,

Respondent.

_______________________________/

RECOMMENDED ORDER

A formal hearing was conducted in this cas e on June 27,

2018, in Jacksonville, Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings ( Ð DOAH Ñ ) .

APPEARANCES

For Petitioner: Shirley P. Williams, pro se

Apartmen t 403

3400 Townsen d Boulevard

Jacksonville, Florida 32277

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent, Townsend Seafood, violated

s ection 760.08, Florida Statutes (201 8) , 1/ by discriminating

against Petitioner based on her race and/or her sex.

PRELIMINARY STATEMENT

On or about August 22, 2017, Petitioner , Shirley P.

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

Human Relations ("FCHR") a Public Accom modation Complaint of

Discrimination against Townsend Seafood. Petitioner alleged

that she had been discriminated against pursuant to c hapters 509

and 760, Florida Statutes , as follows:

I am being harassed and discriminated

against due to my sex (female) and race

(black). The Respondent Townsend Seafood

refuses to allow me the right to stand on

public property while waiting [for] public

transportation. I have been demanded on

several occasions to stand in the rain, or

sun. On July 4th, I approached the bus stop

along with other whites who were waiting.

When I arrived, the Owner walked out of the

restaurant and demanded us to move. I have

been harassed and called the N (word) by

this Owner.

The FCHR investigated Petitioner's Complaint. In a letter

dat ed April 17, 2018, the FCHR issued its determination that

there was no reasonable cause to believe that an unlawful public

accommodation practice occurred.

On April 27, 2018, Petitioner timely filed a Petition for

Relief with the FCHR. On May 4, 2018, the FCHR referred the

case to DOAH. The case was scheduled for hearing on June 27,

2018, on which date it was convened and completed.

At the hearing, Petitioner testified on her own behalf and

presented the testimony of her friend, Judy Slonka.

PetitionerÓs Exhibits 1 through 3 were admitted into evidence. 2/

Respondent did not appear at the hearing. Given that the

testimony of Petitioner and her witness led the undersigned to

conclude that the FCHR lacked jurisdiction to provide relief,

there was no need to issue an order to show cause or otherwise

to inquire as to the reasons for RespondentÓs failure to appear.

No transcript of the hearing was filed. Neither party

filed a proposed recommended order.

FINDING S OF FACT

1. Petitioner is a black woman who live s in Jacksonville,

Florida.

2. Petitioner testified that she frequently waits at a bus

stop adjacent to a strip mall on Townsend Boulevard in

Jacksonville, across the street from a Publix Supermarket. In

2017, Townsend Seafood occupied the end of the s trip mall

nearest the bus stop. Townsend Seafood was a seafood market and

restaurant.

3. Petitioner testified that Ahmed Al Janaby, the apparent

proprietor of Townsend Seafood, 3/ repeatedly accosted her on the

public walkway near the bus stop.

4. In ear ly May 2017, Mr. Al Janaby demanded that

Petitioner remove a Publix grocery cart from the bus stop.

Petitioner responded that she needed the cart because she has a

chronic back disease and was unable to carry the several bags of

groceries she had in the c art. Furthermore, the cart was on

public property, not Mr. Al JanabyÓs premises, and Petitioner

knew that a Publix employee would retrieve the cart after she

got on the bus.

5. On Memorial Day, 2017, Petitioner stopped by Publix on

her way home from fest ivities downtown. As she stood on the

public walkway near the bus stop, Mr. Al Janaby came out of his

premises and demanded that Petitioner move. When Petitioner

declined, Mr. Al Janaby began insulting her choice of clothing,

stating that she looked like a Ðwhore.Ñ Petitioner responded by

calling Mr. Al JanabyÓs mother a whore. At that point,

Mr. Al Janaby spat at Petitioner.

6. On July 4, 2017, Mr. Al Janaby again confronted

Petitioner on the public walkway near the bus stop, demanding

that she move. On this occasion, Mr. Al Janaby used what

Petitioner called Ðthe N - word.Ñ When she threatened to call the

police, he retreated to his business, but not before again

spitting in her direction.

7. On August 21, 2017, Mr. Al Janaby assaulted Petitioner

wit h a broom, which resulted in PetitionerÓs toe being broken.

This incident also occurred on the public walkway near the bus

stop.

8. Petitioner testified that she had no choice but to use

the bus stop near Mr. Al JanabyÓs business. The bus stop itself

wa s not covered, and the public walkway at the strip mall was

the only place to seek refuge from the sun on hot days.

Petitioner did most of her shopping in that area, and frequented

one business in the same strip mall as Townsend Seafood. She

did not shop or eat at Townsend Seafood.

9. Judy Slonka, a white friend of PetitionerÓs, testified

that she once stood on the public walkway while waiting for the

bus on a day when the heat inde x was over 100 degrees.

Mr. Al Janaby emerged from Townsend Seafood and hit her with a

broom, saying that she was obstructing the entrance to his

business.

10. Petitioner testified that since the events described

by her and Ms. Slonka, Townsend Seafood has relocated from the

end of the strip mall to an interior storefront. N either woman

has had a problem with Mr. Al Ja n aby since he moved his business

away from the bus stop.

11. PetitionerÓs testimony was credible as to the facts of

the events she described. Ms. SlonkaÓs testimony was likewise

credible. As the undersigned e xplained to Petitioner at the

conclusion of the hearing, the problem is that the events they

described do not meet the statutory definition of discrimination

in a Ðplace of public accommodation,Ñ because they occurred on

the public walkway outside of Towns end Seafood. Mr. Al Ja n aby

certainly had no right to accost these women on a public

walkway, but this was a matter for local law enforcement, not

the FCHR.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the subject mat ter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

13. This is a de novo proceeding. § 120.57(1)(k), Fla.

Stat. It is not a proceeding to review the FCHRÓs preliminary

determination t hat there was no reasonable cause to b elieve that

an unlawful public accommodation practice occurred.

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

Civil Rights Act" or the "Act"), c hapter 760, prohibits

discrimination in the workplace and in places of public

accommodation.

15. S ection 760.08 provides:

Discrimination in places of public

accommodation. -- 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, without discrimination or

segregation on the ground of race, color,

national origin, sex, handicap, familial

status, or religion.

16. Townsend Seafood is a "public accommodation" as

defined in section 760.02(11), which provides the following, in

relevant part:

"Public accommodations" 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 cov ered

establishments. Each of the following

establishments 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 pri ncipally engaged in selling food

for consumption on the premises, including,

but not limited to, any such facility

located on the premises of any retail

establishment, or any gasoline s tation .

17 . In this case, the facts do not support a finding that

the re was discrimination in a place of public accommodation.

Petitioner was not denied the full and equal enjoyment of the

goods, services, facilities, privileges, advantages, and

accommodations of Townsend SeafoodÓs restaurant. Petitioner

never attempted t o set foot inside Townsend Seafood. Rather,

she was accosted on a public walkway outside the restaurant by

the apparent proprietor of Townsend Seafood. There are

certainly legal remedies available to Petitioner to seek redress

for Mr. Al JanabyÓs bad beh avior and physical bullying, but the

narrow definitions of the Florida Civil Rights Act do not

provide relief under these facts.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission o n Human Relations

issue a final order finding that Townsend Seafood did not commit

an act of public accommodation discrimination against

Petitioner , Shirley P. Williams , and dismissing the Petition for

Relief filed in this case.

DONE AND ENTERED this 13th day of July , 2018 , 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

(85 0) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of July , 2018 .

ENDNOTE S

1/ All references to Florida Statutes are to the 2018 edition.

2/ At the hearing, Petiti oner had only her originals of

Exhibits 1 and 2, which were complaints Petitioner had filed

with the Jacksonville SheriffÓs Office against the apparent

proprietor of Townsend Seafood. The undersigned allowed

Petitioner to keep the originals with the under standing that she

would mail copies for inclusion in the case file. Petitioner

never mailed in the copies. The undersigned reviewed the

exhibits at the hearing. They made no difference to the

ultimate determination in this case, which is that Petitioner

failed to state facts that would permit relief by the FCHR under

the Florida Civil Rights Act.

3/ The name ÐLli NabÑ appears on the mailing address of Townsend

Seafood, but the objectionable a ctions were all taken by

Mr. Al Janaby, who represented himse lf as the proprietor.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Lli Nab

Townsend Seafood

2909 Townsend Boulevard

Jacksonville, Florida 3 2277

Shirley P. Williams

Apartment 403

3400 Townsend Boulevard

Jacksonville, Florida 32277

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.