18-005427 Henry Smith vs. 7 Eleven Status: Closed Recommended Order on Tuesday, March 12, 2019.

Summary: Petitioner did not prove that Respondent discriminated against him on the basis of handicap in a place of public accommodation, in violation of section 760.08.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY SMITH,

Petitioner,

vs. Case No. 18 - 54 27

7 - ELEVEN, INC.

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2018) , 1/ before

Cathy M. Sellers, an Administrative Law Judge ( Ð ALJ Ñ ) of the

Division of Administrative Hearings ( Ð DOAH Ñ ), by video

teleconference on January 17, 2019 , at sites in Lauderdale Lakes

and Talla hassee, Florida.

APPEARANCES

For Petitioner: Henry Smith , pro se

6845 Northwest 29th Street

Sunrise , Florida 33313

For Respondent: Eric Anthony Welter , Esquire

Welter Law Firm

20130 Lakeview Center Plaza, Suite 400

Ashburn, Virginia 20147

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated

section 760.08, Florida Statutes, of the Florida Civil Rights

Act of 1992 ( Ð FCRA Ñ ) , by denying Petitioner the full and equal

enjoyment of the goods, services, facilities, privileges,

advantages, and accommodations of a place of public

accommodation on the basis of Petitioner Ó s handicap.

PRELIMINARY STATEMENT

On or about March 28 , 201 8 , Petitioner, Henry Smith

( Ð Smith Ñ ) , filed a Public Accommodation Complaint of

Discrimination with the Florida Commission on Human Relations

( Ð FCHR Ñ ), alleging that Respondent, 7 - Eleven, Inc. ( Ð 7 - Eleven Ñ ) ,

through its agent, violated section 760.80 by denying him full

and equal enjoyment of the goods, services, facilities,

privileges, advantages, and accommodations of a place of public

accommodation on the basis of his handicap. Specifically,

Petitioner alleged that he had been denied use of the restroom

at 7 - Ele ven Store No. 35031 (hereafter, the Ð Store Ñ ), located at

2099 North State Road 7, Lauderhill, Florida , on the basis of

handicap .

On or about September 19, 2018 , FCHR issued a

Ð Determination: Reasonable Cause , Ñ finding reasonable cause to

believe that a n unlawful practice occurred. Smith timely filed

a Petition for Relief on October 16, 2018, and FCHR referred the

matter to DOAH for assignment of an ALJ to conduct a de novo

hearing pursuant to sections 120.569 and 120.57(1).

On November 5, 2018, 7 - Ele ven filed Respondent

7 - Eleven, Inc. Ó s Motion to Dismiss Petitioner Henry Smith Ó s

Petition for Relief ( Ð Motion to Dismiss Ñ ) , contending that

Petitioner failed to allege facts that, if true, would establish

a prima facie violation of section 760.08 . T he undersigned

denied the M otion to D ismiss on November 19, 2018 .

The final hearing initially was set for November 26 , 201 8 ,

but was continued and rescheduled for January 17, 2019 . The

final hearing was held on January 17, 2019.

Smith testified on hi s own behalf and presented the

testimony of his wife, Elnora Smith (hereafter, Ð Mrs. Smith Ñ )

and his daughter, Sarah Green. Petitioner Ó s Exhibit 1 2/ was

admitted into evidence without objection . 7 - Eleven presented

the testimony of Mavis Ste ff an, and Respondent Ó s Exhibits 1

through 11 3/ were admitted into evidence without objection .

The one - volume Transcript was filed at DOAH on February 13,

2019, and the parties were given until February 25, 2019, to

file proposed recommended orders. Respondent Ó s Pr oposed

Recommended Order was timely filed on February 22, 2019, and was

duly considered in preparing this Recommended Order. Petitioner

did not file a proposed recommended order.

FINDINGS OF FACT

I. The Parties

1. Petitioner Smith is an adult male w ho resides in

Sunrise, Florida.

2. Respondent 7 - Eleven is a Texas corporation , with its

headquarters located at 3200 Hackberry Road, Irving, Texas .

Respondent owns , operates, and franchises convenience stores in

Florida under the trademarked name Ð 7 - Eleven . Ñ

II . Procedural Background

3. On or about March 28, 2018, Smith filed a Public

Accommodation Complaint of Discrimination with FCHR, alleging

that 7 - Eleven, Inc., through its agent, violated section 760.80

by denying him full and equal enjoyment of the goods, services,

facilities, privileges, advantages, and accommodations of a

place of public accommodation on the basis of handicap.

4 . After conducting an investigation, F CHR issued a

D etermination: Reasonable Cause on or about September 19, 2018 ,

finding reasonable cause to believe that an unlawful practice

occurred.

5 . Smith timely filed a Petition for Relief on October 16,

2018 , asserting that 7 - Eleven had discriminated against him in a

place of public accommodation on the basis of handicap. This

charge , as set forth in the Petition for Relief, is the subject

of this de nov o proceeding.

III . Events Giving Rise to this Proceeding

6 . On September 16, 2017, Smith arrived at the Store to

purchase gasoline. He was accompanied by Mrs. Smith and his

daughter , Rochelle Smith .

7 . At that time , the Store was a franchised 7 - Eleven

conv enience store and gas station. HA&A Enterprises , Inc.

( Ð HA&A Ñ ) , owned by Sumera Shahzadi ( Ð Shahzadi Ñ ), was the

franchisee.

8 . Immediately upon arriving at the Store, Smith went

inside to use the restroom, while Mrs. Smith remained outside to

pump gas.

9 . Smith testified, credibly, that he had a stroke and, as

a result, walks slowly with a visible limp. He testified that

he sometimes, but not always, uses a cane to assist him in

walking. He was not using a cane when he entered the Store on

September 16, 2017 .

10 . Upon entering the Store, Smith discovered that the

restroom was locked . Smith asked Shahzada Hussain ( Ð Hussain Ñ ) ,

who was working behind the counter, for the restroom key so that

he could use the restroom. Hussain tol d him that the restroom

was out of order and did not give him the key .

11 . The evidence does not establish that Hussain was aware

of any disability or handicap that Smith may have . 4/

12 . Because Smith was unable to use the restroom, he was

forced to urinate outside, in the front of the Store. Smith had

difficulty pull ing down his pants , and he urinated on himself .

He testified , credibly, that other persons were present at the

Store and saw him urinat e on himself.

13 . Mrs. Smith assisted Smith in pulling up his pants,

then went inside the Store and asked Hussain for the key to the

restroom. Hussain gave her the key. She went into the restroom

and found it to be in working order. She also noticed that no

Ð out of order Ñ sign was posted on the restroom door.

14 . Mrs. Smith then took numerous photographs of various

documents on the wall of the Store. These documents included:

a Broward County Local Business Tax Receipt for the period of

October 1, 2016, to Se ptember 30, 2017, showing the business

name as Ð 7 - Eleven #35031 Ñ and the business owner as Ð 7 - Eleven

Inc. & HA&A Enterprises , Inc. Ñ ; the 2016 Florida Annual Resale

Certificate for Sales Tax issued to 7 - Eleven Store #35031, HA &A

Enterprises, I nc.; a Florida Department of Environmental

Protection Storage Tank Registration Placard, 2015 - 2016, issued

to 7 - Eleven, Inc., Store #35031; a National Registry of Food

Safety Professionalism certificate issued to Shahzada Hussain; a

Florida Department of Business and Professional Regulation,

Division of Alcoholic Beverages and Tobacco, Temporary

License/Permit; a document titled Ð Notice , Ñ with the name

Ð 7 - Eleven Ñ handwritten as the business authorized to engage in

the money transmi ssion b usiness; a Department of Agriculture and

Consumer Services Liquefied Petroleum Gas License issued to

7 - Eleven Store # 35031; and a ServSafe Certification issued to

Sumera Shahzadi . The photographs , along with a written

description of each document depicted in the photographs , were

admitted into evidence at the final hearing.

15 . At that time, Mrs. Smith also photographed the Store Ó s

restroom door , o n which signs reading Ð M EN Ñ and Ð W OMEN Ñ were

hung. E ac h of these signs depict ed a wheelchair symbol ,

presumably indicating that the restroom was handicap ped -

accessible. The restroom door did not have a sign posted

indicating that it was out of order.

16 . Mrs. Smith also p hotographed Shazhadi and Hussain as

they were working behind the counter of the Store . Mrs. Smith

referred to Shazhadi and Hussain as Ð the owners Ñ of the Store in

her testimony at the final hearing regarding the September 16,

2017, incident. 5/

17 . Shortly after the incident , the police arrived at the

Store on an unrelated matter. At the direction of the police

officer investigating the unrelated matter, the Smiths did not

purchase gasoline at the Store that day , and went to another

store to purchase gas . Mrs. Smith testifi ed that she frequently

patronized the Store, both before and after the September 16,

2017, incident.

18 . As noted above, Smith credibly testified that other

persons present at the Store saw him urinate on himself. Smith

is a member of the clergy of a l ocal church and, thus, is a

well - known person in his neighborhood , where the Store is

located. The credible evidence establishes that Smith was

extremely embarrassed and humiliated, and experienced emotional

distress as a result of having urinated on hims elf in public

view. He testified that this incident so embarrassed him that

he may move from the community or from the state. No evidence

regarding any quantified or quantifiable injury or damage s that

Smith may have incurred as a result of the incident was

presented.

19 . On or about November 1 4 , 2017, the Smiths filed a

complaint regarding their September 16, 2017, experience at the

Store through 7 - Eleven Ó s complaint hotline. Mrs. Smith

testified that in one of the telephone conversations with the

7 - Eleven corporate office, they were given an incident claim

number.

20 . On or about November 19, 2017, Mavis Steffan, the

7 - Eleven corporate field consultant for the subgroup of 7 - Eleven

stores that includes the Store , contacted the Smiths and spoke

t o them regarding the September 16, 2017, incident at the Store.

Mrs. Smith testified that when the Smiths spoke with Steffan on

November 19, 201 7, she (Steffan) told them that on the date of

the incident, the Store was a private franchise , and that on

Oct ober 23, 2017, the S tore Ð became corporate Ñ ÏÏ meaning that 7 -

Eleven, Inc., began operating the Store . Steffan apologized for

the incident, invited the Smiths to patronize the Store again,

and told them that Smith was free to use the restroom at the

S tore.

IV. Relationship between the Store and 7 - Eleven

21 . Steffan testified at the final hearing regarding the

relationship between the Store and 7 - Eleven, as it existed on

September 19, 2017.

22 . 7 - Eleve n and HA&A entered into a 7 - Eleven, Inc.

Florida Individual Store Franchise Agreement ( hereafter,

Ð Franchise Agreement Ñ or Ð Agreement Ñ ) , effective March 23, 2016 ,

regarding the Store .

23 . The Franchise Agreement terminated on October 23,

2017, and, as of that date, 7 - Eleven, Inc., began operat ing the

S tore. 6 /

24 . Therefore, the Store was a franchised store on

September 19, 2017, the date of the incident . As discussed

above, HA&A was the franchisee.

25 . Pursuant to the Franchise Agreement, HA&A was an

independent contractor. The Agreement provided that the

franchisee ÏÏ here, HA&A ÏÏ controlled the manner and means of the

operation of the franchised s tore, and exercised complete

control over and responsibility for the conduct of its agents

and employees, including the day - to - day o perations of the

franchised s tore. The Agreement expressly provided that the

franchisee Ó s agents and employees could not be considered or

held out to be agents or employees of 7 - Eleven , and could not

incur any liability in the name of, or on behalf of, 7 - Eleven.

The Agreement further provided that all employees of the

franchised store were solely those of the franchisee , and that

no actions taken by the franchisee, its agents, or its employees

would be attributable to 7 - Eleven.

26 . As part of the Franc hise Agreement, HA&A also agreed

to comply with 7 - Eleven Ó s Operations Manual ( Ð Manual Ñ ) .

Provisions in the Manual stated that the franchisee was solely

responsi ble for setting the policies and procedures to operate

his or her store in accordance with the laws of the legal

jurisdiction in which the store was located , and that the

franchisee was solely responsible for the actions of its

employees while on the job .

27 . Additionally, training materials provided by 7 - Eleven

to franchisees for use in trainin g fr anchisee employees

expressly informed those employees that they were not Ð in any

way considered to be an employee, agent[,] or independent

contractor of 7 - Eleven, Inc., Ñ and that 7 - Eleven did not Ð assume

any liability for providing you these training m aterials. Ñ

28 . Consistent with these provisions, Steffan testified

that the franchisee ÏÏ here, HA&A ÏÏ wa s solely responsible for the

overall operations of the Store , including supervising, hiring,

firing, promoting, and disciplining Store employees. HA&A also

was solely responsible for enforcing workplace rules, policies,

and procedures for the Store .

29 . Based on this evidence, it is determined that HA&A was

solely responsible for the actions of its employees and agents,

including Hussain Ó s actions on September 1 6 , 201 7 , toward Smith .

Stated another way, the evidence establishes that 7 - Eleven was

not responsible for Hussain Ó s actions in the Store , including

his actions on September 16, 2017 , toward Smith while he (Smith)

was in the Store.

CONCLUSIONS OF LAW

30 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding. §§ 120.569, 120.57(1), Fla. Stat.

31 . The FCRA is codified at sections 760.01 through

760.11, Florida Statutes.

32 . Section 760. 08 , titled Ð Discrimination in places of

public accommodation, Ñ states: Ð [a]ll 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 or segregati on on

the ground of race, color, national origin, sex, pregnancy,

handicap, familial status, or religion. Ñ This provision

prohibits discrimination against protected classes, including

handicapped persons, in places of public accommodation.

33 . Section 7 60.02(11) defines Ð p ublic accommodations Ñ

to include gasoline stations among the places of public

accommodation to which the FCRA applies. Accordingly , the

Store is a place of Ð public accommodation Ñ for purposes of

section 760.08.

I. Responsible Person/E ntity

34 . It is well - established that a franchisor is not liable

for the actions of an independent contractor franchisee or

franchisee employees unless there is a factual demonstration of

an agency or employment relationship between them. See Pona v.

Cecil Whitaker Ó s, Inc. , 155 F.3d 1034, 1036 (8th Cir. 1998);

West v. LQ Mgmt., LLC , 156 F. Supp. 3d 1361, 1370 (S.D. Fla.

2015) ; Cain v. Shell Oil Co. , 994 F. Supp. 2d 1251 , 1252 (N.D.

Fla. 2014) ; Howell v. Chick - Fil - A, Inc. , 1993 U.S. Di st. LEXIS

19030, a t * 5 (N.D. Fla. Nov. 1, 1993). To this point, t he mere

use of franchised logos does not necessarily indicate that the

franchisor has any actual or apparent control over any

substantial aspect of the franchisee Ó s business or employment

decisions. Cain , 99 4 F. Supp. 2d at 1253. The key question is

whether the terms of a franchise agreement create an agency

relationship by contract. Id.

35 . As discussed above, the Franchise Agreement, Manual,

and training materials make abundantly clear that HA&A Ó s agents

and employees could not be considered or held out to be agents

or employees of 7 - Eleven , and could not incur any liability in

the name of, or on behalf of, 7 - Eleven . Pursuant to these

documents, all employees of HA&A were solely those of HA&A and

n ot 7 - Eleven, and no actions taken by HA&A, its agents, or its

employees would be attributable to 7 - Eleven . The se documents

also expressly provided that HA&A was solely responsible for

setting the policies and procedures to operate the Store in

accordance with Florida law ; that HA&A was solely responsible

for the actions of its employees while on the job; and that HA&A

employees were informed that they were not in any way considered

to be employee s or agent s of 7 - Eleven, Inc. Additionally,

Steffan Ó s credib le testimony confirmed that under the Franchise

Agreement, HA&A was solely responsible for the overall

operations of the Store , including supervising, hiring, firing,

promoting and disciplining franchised store employees , and also

was solely responsible fo r enforcing all workplace rules,

policies, and procedures for the Store .

36 . Based on the evidence and pertinent case law , it is

concluded that 7 - Eleven was not an agent or employee of HA&A on

September 16, 2017, and, therefore, is not liable for the

actions of HA&A or its employees, including Hussain Ó s actions

toward Smith, that occurred at the Store on that date.

37 . T he fact that 7 - Eleven had a complaint hotline number

posted in the Store did not render it an apparent agent of HA&A

for purposes of liability for Hussain Ó s actions toward Smith on

September 16, 2017.

38 . For a franchisor to have apparent agency for purposes

of liability to third parties, three elements must be met:

(1) a representation by the purported principal ÏÏ here, 7 - Elev en;

(2) a reliance on that representation by a third party; and

(3) a change in position by the third party in reliance on that

representation. Mobil Oil Corp. v. Bransford , 648 So. 2d 119

(1995).

39 . The evidence also does not establish the existenc e of

an apparent agency relationship between 7 - Eleven and HA&A on

September 16, 2017.

40 . The posting of a complaint hotline number , by itself,

cannot be interpreted as constituting a representation that

7 - Eleven operated or controlled the operation o f the Store ÏÏ

particularly considering that almost all of the other documents,

including the licenses and ce rtificates, posted in the Store

either identified HA&A as the owner/operator of the Store or

identified the owner as franchised store Ð No. 35031. Ñ

T he totality of the evidence does not establish that 7 - Eleven

represented that it operated the Store or controlled its

operation or employees.

41 . B ecause there was no representation by 7 - Eleven that

it operated the Store or controlled its operation or employees,

Smith could not have r el ied, and change d his position in

reliance , on such representation.

42 . For these reasons, it is concluded that 7 - E leven is

not the responsible party for ÏÏ and, therefore, not liable for ÏÏ

any potentially discriminatory action taken by HA&A Ó s employee,

Hussain, toward Smith on September 16, 2017, in the Store.

43 . This conclusion is consistent with case law holding

tha t franchisors are not owners or operators of independent

contractor franchised stores, and, thus, were not liable for the

alleged discriminatory acts of independent contractor

franchisees or franchisee employees . See , e.g. ,

Neff v. Am Dairy Queen Corp. , 58 F.3d 1063, 1068 (5th Cir.

1 995)(restaurant franchisor did not operate franchised

restaurant so not liable for disability discrimination in place

of public accommodation); A.C. v. Taurus Flavors, Inc. , 2017

U.S. Dist. LEXIS 16644 (N.D. Ill. Feb. 7, 2017) (franchisor

restaurant did not control franchisee Ó s facilities so not liable

for discrimination in place of public accommodation) ; Houston v.

7 - Eleven, Inc. , 2015 U.S. Dist. LEXIS 43553, at *26 (M.D. Fla.

2015); DiPilato v. 7 - Eleven, Inc. , 662 F. Supp. 2d 333, 347 - 48

(S.D.N.Y. 2009)(franchisee is independent contractor, so its

employee is not employed by franchisor); Singh v. 7 - Eleven,

Inc. , 2007 U.S. Dist. LEXIS 16677 (N.D. Cal Mar. 8,

2007)(franchisor not liable for employment discrimination

because not e mployer of franchisee or its agents); Brooks v.

Collins Foods, Inc. , 365 F. Supp. 2d 1342, 1351 (N.D. Ga.

2005)(franchisor was not franchisee Ó s agent so not liable for

discrimination in place in place of public accommodation);

United States v. Days Inns of Am., Inc. , 22 F. Supp. 2d 612, 617

(E.D. Ky. 1998 )(franchisor Ó s control over franchisee not

sufficient to render franchisor Ð operator Ñ for purposes of

disability discrimination liability); Bahadirli v. Domino Ó s

Pizza , 873 F. Supp . 1528, 1537 (M.D. Ala. 1995) ( franchisor not

liable under Title VII for national origin discrimination by

franchisee because franchisee was not agent of franchisor).

II. Discrimination in Place of Public Accommodation

44 . Furthermore , it is concluded that Hussain Ó s action

toward Smith on September 16, 2017, did not constitute

discrimination on the basis of handicap in a place of public

accommodation, in violation of section 760.08.

45 . The FCRA is modelled after Title II of the Civil

Rights Act of 1964 ( Ð Civil Rights Act Ñ ) , 42 U.S.C. § 2000a , and

Title VII of the Civil Rights Act , 42 U.S.C. § 2000e .

Thus , case law interpreting these federal anti - discrimination

statutes is applicable to proceed ings under the FCRA.

46 . Additionally, Title II of the Civil Rights Act

pro hibits discrimination in places of public accommodation in

language substantially similar to that in section 760.08 . Due

to the relative dearth of case law under Title II, f ederal

courts find guidance in the case law under Title VII , including

the law of shifting evidentiary burdens , in interpreting

Title II. See Fahim v. Marriott Hotel Serv. , 551 F.3d 344, 349

(5th Cir. 2008) . The United States Supreme Court Ó s evidentiary

model applicable to employment discrimination established in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973) , has been

extended to discrimination in places of public accommodation.

Fahim , 551 F.3d at 349 - 350. 7 /

47 . Under the McDonnell analysis, Smith has the burden of

proof in this proceeding to establish, by the greater weight of

the evidence, a prima facie case of unlawful discrimination on

the basis of handicap . If Smith establishes a prima facie case ,

then the burden shifts to 7 - Eleven to rebut this showing by

presenting evidence that the alleged discriminatory action was

taken for some legitimate, non - discriminatory reason. If

7 - Eleven is successful in rebutting Smith Ó s prima facie case,

the burden shifts back to Smith to show, by the greater weight

of the evidence, that 7 - Eleven Ó s o ffered reason was a mere

pretext. Id. at 802 - 03.

48 . To establish a prima facie case of unlawful

discrimination in a place of public accommodation under section

760.08, the petitioner ÏÏ here, Smith ÏÏ must show , by the greater

weight of the evidence, each of the following elements : (1) he

is a member of a protected class; (2) he attempted to avail

himself of the services of a place of public accommodation;

( 3) he was denied those services; and (4) those services were

made available to similarly situated persons outside of his

pro tected class. Fahim , 551 F.3d 344, 349 - 50 (5th Cir. 2008).

49 . Here, the evidence does not establish that Smith falls

within the class of handicapped persons protected under section

760.08.

50 . Florida c ourts have interpreted the term Ð handicap Ñ i n

chapter 760 in accordance with the definition of Ð disability Ñ in

the federal Americans with Disabilities Act, 42 U.S.C. § 121 01 ,

et seq. ( Ð ADA Ñ ) and case law interpreting that statute. S ee,

e.g. , St. Johns Sch. Dist. v. O Ó Brien , 973 So. 2d 535, 540 (Fla.

5th DCA 2007); Green v. Seminole Elec. Coop. , 701 So. 2d 646,

647 (Fla. 5th DCA 1997); Brand v. Fla. Power Corp. , 633 So. 2d

504, 510 n.10 (Fla. 1st DCA 1994).

51 . A Ð disability , Ñ as defined in the ADA , is : (1) a

physical or mental impairment tha t substantially limits one or

more of the major life activities of such individual; (2) a

record of such impairment; or (3) regarded as having such

impairment. 42 U.S.C. § 12102(2).

52 . Walking is identified as a Ð major life activity Ñ under

the ADA. 29 C.F.R. § 1630.2(i).

53 . Case law interpreting the term Ð disability Ñ under the

ADA holds that an individual who, due to impairment, walks

moderately below average speed is not considered Ð disabled Ñ for

purposes of the ADA. Turner v. The Saloon, Ltd. , 595 F.3d 679

(7th Cir. 2010). Walking with difficulty also is not considered

an impairment that rises to the level of a disability under the

ADA . Squibb v. Mem Ó l Med. Ctr. , 497 F.3d 775, 784 (7th Cir.

2007). Periodic or sporadic use of a cane to assis t in walking

also does not rise to the level of a disability under the ADA.

Moore v. Hillsborough Cnty. Bd. of Cnty. Comm Ó rs , 544 F. Supp.

2d 1291, 1301 (M.D. Fla. 2008). Experiencing moderate

difficulty while walking does not rise to the level of a

disa bility under the ADA. Penny v. United Parcel Serv. , 128

F.3d 408, 415 (6th Cir. 1997). See also Rossblach v. City of

Miami , 371 F. 3d 1354, 1358 (11th Cir. 2004)(someone who walks,

sits, stands or sleeps moderately below average is not disabled

under the ADA) .

54 . Here, the evidence establishes that as a result of

suffering a stroke, Smith walks slowly and with a limp.

However, Smith testified that he does not use a cane every day,

and that he was not using a cane on September 16, 2017, when he

entered the Store. This evidence indicates that although Smith

may be moderately impaired in his ability to walk, his

i mpairment does not rise to the level of a Ð disability Ñ under

t he pertinent case law .

55 . Accordingly, the evidence does not establish that

Smi th is handicapped for purposes of being a member of a

protected class under section 760.08.

56 . The evi dence does establish that the other elements of

a prima facie case of unlawful discrimination in a place of

public accommodation are met. Smith attem pted to avail himself

of the services ÏÏ specifically , use of the restroom ÏÏ in the

Store. He was denied access to that service, and his wife, who

does not have any impairment with respect to walking, was given

access to use the restroom at the Store.

57 . However, all of the elements , discussed above , must be

met in order to establish a prima facie case of unlawful

discrimination in a place of public accommodation. Fahim ,

551 F.3d 344, 349 - 50 (5th Cir. 2008).

58 . Because Smith did not prove, by the greater weight of

the evidence, that he is a member of a protected class, he did

not establish that his being denied use of the restroom at the

Store on September 16, 2017, constituted unlawful discrimination

in a pla ce of public accommodation.

III . Damages

59 . S ection 760.11(6) , which governs remedies that may be

awarded in administrative proceedings under sections 120.569 and

120.57(1), states, in pertinent part:

If the administrative law judge, after the

he aring, finds that a violation of the

Florida Civil Rights Act of 1992 has

occurred, the administrative law judge shall

issue an appropriate recommended order in

accordance with chapter 120 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay.

§ 760.11(6), Fla. Stat.

60 . This provision does not authorize the ALJ or FCHR to

award monetary damages for non - quantifiable damages such as

emotional distress, embarrassment, or humiliation. Inman v.

Jian Deng Bao, d/b/a China Gardens Rest . , Case No. 11 - 5602 (Fla.

DOAH Feb. 16, 2012), modified in part on other grounds , Case No.

2011 - 1219 (FCHR Apr. 23, 2012). See Broward Cnty. v. LaRosa ,

505 S o. 2d 423 - 24 (Fla. 1987)(holding that the ability to award

damag es for personal injuries in the form of humiliation and

embarrassment is purely a judicial function, so that an ALJ is

not authorized to award damages for such injuries).

61 . Here, the credible, persuasive evidence established

that as a result of having urinated on himself in a public

place, Smith suffered emotional distress, embarrassment, and

humiliation. However, these injuries are not the type for which

monetary damages can be awarded in this proceeding . As noted

above, no evidence was presented regarding any quantified or

quantifiable damages that Smith may have suffered as a result of

urinating on himself.

62 . Thus, even if Smith had established that he was a

victim o f unlawful discrimination on t he basis of handicap in a

place of public accommodation, he would not be entitled to an

award of monetary damages in this proceeding.

IV. Conclusion

63 . For the reasons discussed above, it is found and

concluded that Petitioner, Henry Smith, did not pr ove, by the

greater weight of the evidence, that Respondent, 7 - Eleven, Inc.,

engaged in unlawful discrimination against him on the basis of

handicap in a place of public accommodation, in violation of

section 760.08. 8/

R ECOMMENDATION

Based on the foregoi ng Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing the Petition for

Relief.

DONE AND ENTERED this 12th day of March , 201 9 , in

Tallahassee, Leon County, Florida .

S

CATHY M. SELLERS

Administrative Law Judge

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 12 th day of March, 2019 .

ENDNOTES

1/ All references to Florida Statutes are to the 2018 version

unless otherwise stated.

2/ Petitioner Ó s Exhibit 1 is a composite exhibit consisting of

Ð Evidence 1, Ñ Ð Petitioner Ó s Evidence, Ñ and Ð Evidence 2, Ñ filed

on the docket of this proceeding prior to the final hearing.

3/ Respondent Ó s Exhibit 11 is a composite exhibit consisting of

photographs taken by Mrs. Smith on September 16, 2017. It was

admitted into evidence at the final hearing and filed with DOAH

shortly after the final hearing was adjourned.

4/ Additionally, both Smith and Mrs. Smith testified that

Hussain walked with a pronounced limp that they described as

Ð worse Ñ than Smith Ó s slow walk or limp. The fact that Hussain

had a walking impairment similar to Smith Ó s creates the

inference that Huss ain did not possess discriminatory intent

when he did not give Smith the key to the restroom and told him

that it was out of order. See Elrod v. Sears, Roebuck & Co. ,

939 F.2d 1466, 1471 (11th Cir. 1991).

5/ In the Technical Assistance Questionnaire f or Public

Accommodation Complaints, dated February 20, 2018, that Smith

submitted to FCHR, he described the Ð owner Ñ of the Store as an

Ð older Arabian disability cripple male Ñ ÏÏ referring to Hussain.

The evidence established that Shahzadi and Hussain were

si blings, rather than a married couple, as the Smiths had

assumed.

6/ The evidence establishes that the termination of the

Franchise Agreement was a Ð mutual termination. Ñ

7/ Discriminatory intent can be established through direct or

circumstantial evid ence. Schoenfeld v. Babbitt , 168 F.3d 1257,

1266 (11th Cir. 1999). In Schoenfeld , the court explained that

direct evidence of discrimination is composed of only the Ð most

blatant remarks, Ñ the intent of which could be nothing other

than to discriminate o n the basis of some impermissible factor.

Here, no evidence was presented that Hussain verbalized that he

was refusing to allow Smith to use the restroom on the basis of

handicap. Here, Smith asserts a claim of disparate treatment on

the basis of circumst antial evidence, rather than direct

evidence. Accordingly, the McDonnell analysis, as adapted for

alleged discrimination in the public accommodations context,

applies to this case.

8/ The undersigned is sympathetic to the emotional distress,

humiliation , and embarrassment that Smith suffered as a result

of being denied use of the Store Ó s restroom, forcing him to

urinate in a public place, and causing him to urinate on

himself. However, the undersigned is required to base her

decision on the evidence pre sented and the applicable law,

which, as discussed above, do not support the conclusion that

7 - Eleven discriminated against Smith on the basis of handicap in

a place of public accommod ation.

COPIES FURNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Henry Smith

6845 Northwest 29th Street

Sunrise, Florida 33313

(eServed)

Kelly Haze Kolb, Esquire

Buchanan Ingersoll & Rooney P.C.

Suite 2250

401 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

(eServed)

Eric Anthony Welter, Esquire

Welter Law Firm

Suite 400

20130 Lakeview Center Plaza

Ashburn, Virginia 20147

(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.