18-005521 Joao Fonseca vs. Duffy's Sports Grill Status: Closed Recommended Order on Tuesday, February 5, 2019.

Summary: Respondent denied food service to customer whose nation of origin is Brazil and, in delivering message, bartender referred to Petitioner's language, Portuguese, in derogatory fashion. But denial based on obnoxious language previously spoken to bartender.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOAO DANIEL FONSECA ,

Petitioner,

vs. Case No. 18 - 5521

DUFFY'S OF COCONUT CREEK, INC. ,

Respondent .

_______________________________/

RECOMMENDED ORDER

On December 20 , 2018 , Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in Lauderdale

Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Chris topher Donnelly, Esquire

C.J. Donnelly Law Office s PLLC

302 0 Northeast 32nd Avenue, Unit 803

Fort Lauderdale, Florida 33308

For Respondent : Jennifer A. Schwartz, Esquire

Jackson Lewis PC

One Bi scayne Tower , Suite 3500

Two South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue is whether, in violation of section 760.08,

Florida Statutes, Respondent deprived Petitioner of full and

equal enjoyment of Respondent's bar and restaurant due to

discrimination based on Petitioner's nation of origin, which is

Brazil.

PRELIMINARY STATEMENT

By Complaint of Discrimination filed on October 20, 2017,

Petitioner alleged that, on September 25, 2017, during a visit to

Duffy's Sports Grill located in Coconut Creek, the bartender

announced that he would not serve Petitioner anymore due to

P etitioner's previous criticism of the bartender's service. When

Petitioner asked him to explain, the bartender allegedly replied

that Petitioner was not welcome because he had been "bad

mouthing" him in Petitioner's "shit language," meaning

Portuguese. A fter allegedly obtaining no relief from the general

manager, Petitioner was allegedly asked to leave the restaurant.

Following an investigation, the Florida Commission on Human

Relations issued a Determination: No Probable Cause.

By Petition for Relief filed on October 17, 2018, Petitioner

largely restated the allegations of the Complaint of

Discrimination. The Florida Commission on Human Relations

transmitted the file to DOAH on October 18, 2018.

At t he hearing, Petitioner called two witnes ses and offe red

into evidence ten exhibits : Petitioner Exhibits 1 through 10 .

Respondent called three witnesses and offered into evidence ten

exhibit s : Respondent Exhibit s 1 through 10 . All exhibits were

admitted without objection.

The court reporter filed the transcript on January 23, 2019.

The parties filed pr oposed recommended orders on February 1 ,

2019 .

FINDING S OF FACT

1. Petitioner is a native of Brazil. He is fluent in

English and Portuguese, which is the national language of Brazil.

2. Respondent owns and operates Duffy's Sports Grill in

Coconut Creek, Florida (Duffy's) . Duffy's is a place of public

accommodation serving food and beverages, including alcoholic

beverages, to customers who may be seated indoors or outdoors.

There is no indication of any difference in the availability of

food and beverages between the indoor and outdoor area, but the

outdoor area offers customers the option of smoking .

3. At all material times, Petitioner wa s a member of the

Du ff y's MVP Club, which awards points for purchases, evidently to

be used for future purchases . Records of Petitioner's MV P Club

activity reveal nearly 50 visits to Duffy's from June 2013

through the summer of 2016. Petitioner agreed that he had been

to Du ffy's many times, invariably sat outside so he could smoke,

and was often served by bartender, Kevin Carr. Petitioner also

testified that, on many of these visits, he was in the company of

Brazilian friends , who had spoken Portuguese while being served

by Mr. Carr, and there had never been any problems. It is thus

clear that Petitioner enjoyed Duffy's outside bar, and the retail

relationship between Petitioner and Mr. Carr was functional and

met with the general satisfaction of the bartender and the

custo mer .

4. Late in the afternoon of Friday, September 15, 2017,

Petitioner visited Duffy's with his cousin, who is from Brazil.

During this visit, Petitioner and his cousin sat at the outside

bar and generated a tab of about $60 consisting of three or four

beers each and a shared appetizer. Petitioner denied that he and

his cousin ever reached a state of crapulence, but they clearly

consumed enough alcohol to lower their conversational

inhibitions.

5. At one point, the cousin tried to place an order wi th

Mr. Carr, but felt that Mr. Carr had ignored him. The cousin and

Petitioner had previously noticed a sewer smell, possibly

emanating from a nearby waste line, w hich may have put the cousin

in a foul mood about his Duffy's experience . In any event ,

feeling slighted by Mr. Carr, the cousin said to Petitioner in

Portuguese that the service was " unprofessional. " It is unclear

what Petitioner said, but, in short o rder, the cousin added that

Mr. Carr was a "piece of shit," and a female bartender was a

" p rostitute. " These latter comments will be referred to as the

September 15 Vulgarities.

6 . As luck would have it, seated beside Petitioner was

Caluvio Ferreira , who is Brazilian and fluent in Portuguese and

English; a friend of Mr. Carr , whom he has visit ed at his home;

and a high - minded man who is unafraid to confront others who fail

to meet his standards of conduct and speech .

7 . Having suffered in silence the loud speech of Petitioner

and his cousin, upon hearing the September 15 Vulgarities ,

Mr. Ferreira immediately left the bar to go to the restroom . As

he returned to his seat at the bar, he paused beside Petitioner

and his cousin and advised them to be careful about what they

said because someone could understand them, even speaking

Portuguese. Mr. Ferreira added that he knew Mr. Carr, his wife,

and their daughter and had been to their home , and he knew the

female bartender . Mr. Ferreira declaimed that Petitioner and his

cousin had no right to make the c omments that they had made about

Mr. Car r and the female bartender.

8. Petitioner replied tha t they had had bad service.

Mr. Ferreira answered that bad service did not excuse their

crudities, but should be brought to the attention of the manager,

who would ad dress it. Obviously angry, Mr. Ferreira, who is a

large man, warned the men , "I hope you don't do that again.

Maybe I'll have a problem with you." At this point, Petitioner

cashed out , and he and his cousin left the premises.

9. Having seen his friend speaking angrily to Petitioner

and his cousin, Mr. Carr approached Mr. Ferreira a few minutes

later and asked him what that had been about. Mr. Ferreira told

Mr. Carr that Petitioner had spoken the September 15 Vulgarities.

Petitioner has credibly denied making the statements, and it

would seem more likely that they would come from his cousin, who

had felt slighted by Mr. Carr, than Petitioner, who was a regular

customer of Mr. Carr. It is likely that Mr. Ferreira was

mistaken as to which of the men seated next to him made the

statem ents, but Mr. Carr reasonably believed, based on what his

friend had told him, that Petitioner had insulted him and his

coworker.

10. Ten days later, Petitioner reappeared at Duffy's. He

was in the company of two friends, one of whom lived in Brazil.

Th ey took seats at the outside bar, but no one served them.

Having seen Petitioner approaching the outdoor bar, Mr. Carr had

gone inside to speak to the manager. After recounting the

September 15 Vulgarities, Mr. Carr asked for permission not to

serve Peti tioner, and the manager granted the request. Mr. Carr

asked whether he or the manager should inform Petitioner, and the

manager said Mr. Carr should.

11. Authorized to deny Petitioner service at the outside

bar , Mr. Carr approached the party and loudly denounced

Petitioner for having spoken badly about him in his "shit

language," meaning Portuguese. Mr. Carr identified the September

15 Vulgarities , which Petitioner denied having spoken . Mr. Carr

deman d ed to know what exactly Petitioner had said, but Petitioner

never admitted that he or his cousin had said anything of the

sort. During this exchange , Mr. Carr angrily repeated the word

"shit," although in other contexts not having anything to do with

Petitioner's national origin. The initial vulgar reference to

Portuguese will be referred to as the September 25 Vulgarity, and

all of the vulgarities spoken by Mr. Carr will be referred to

cumulatively as the September 25 Vulgarities.

12. Realizing that Mr. Carr was adamant , Petitioner went

insi de and appealed to the manager, who backed his bartender , but

offered to seat Petitioner and his friends inside. Petitioner

declined and left the premises.

CONCLUSIONS OF LAW

1 3 . DOAH has jurisdiction. §§ 120.569 (1), 120.57(1) , and

760.11(1) and (7), Fla. Stat. (2018).

14. All persons are entitled to the "full and equal

enjoyment" of the goods or services of any "public accommodation"

without discrimination based on national origin , among other

categories . § 760.08. The federal counterpart to section 760.08

is 42 U . S . C . § 2000a(a) , which provides similarly .

15. Duf fy's is a "public accommodation " owned and operated

by Respondent. § 760. 02(11). The record does not establish that

Duffy's is "principally engaged in selling food," as required by

section 760.02(11)(b), but Respondent bears the burden of proving

that it is not a "public accommodation, " Solomon v. Miami Woman's

Club , 359 F . Supp. 41 (S.D. Fla. 1973), and Respondent has

produced no evidence on the point. (Obviously, the definition al

perspective is on the seller, so it is irrelevant whether

Petitioner was principally engaged in buying food at Duffy's .)

16. Addressing the determinative issue, Petitioner contends

that he was denied service in the outside bar of Duffy's due to

an act of discrimination against him on the ground of his

national origin . Petitioner's proof fails for two reasons.

First, the person who uttered the September 25 Vulgar ity was not

the person who denied Petitioner service at the outside bar.

See, e.g. , Evans v. McClain, Inc. , 131 F.3d 957, 962 (11th Cir.

1997). Knowing the limits of his authority, Mr. Carr sought out

the manager to obtain his approval for denying Petiti oner

service. It is unclear whether the manager knew Petitioner's

national origin, and there is no evidence that , even if he did

know that Petitioner was from Brazil, the manager denied

Petitioner service at the outside bar on the basis of his

national or igin.

17. Second, even if Mr. Carr were the decisionmaker, there

is no causal connection between his utterance of the September 25

Vulgarity, which reveals a focus on Petitioner's national origin,

and the decision to deny Petiti oner service at the outsi de bar.

The September 25 Vulgarity was one among s everal September 25

Vulgarities , which, together, reveal a state of anger, but not

nec essarily discriminatory intent . Discriminatory intent is

negated by Mr. Carr's long , untroubled retail relationship with

Petitioner ; Mr. Carr's personal friendship with Mr. Ferreira, who

is also Brazilian ; and, most importantly, Mr. Carr's good faith

understanding that Petitioner had uttered the September 15

Vulgarities, which is what drove the deci sion to deny Petitioner

outside service .

18. It is possible to analyze the facts within the

burden - shifting framework of McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973), which properly is reserved for determining

whether a plaintiff or a defendant has presented sufficient

evidence to justify a trial. See, e.g. , Wall vust Co. of

Ga. , 946 F.2d 805, 809 - 10 (11th Cir. 1991). However , the

McDonnell Douglas framework provides a convenient list of

elements of proof for a circumstantial case of discrimination

based on inference .

19 . As applied to a case of alleged discrimination in

hiring, the McDonnell Douglas burden - shifting scheme requires the

plaintiff to prove a prima facie case of discrimination by

showing that he belongs to a protected class , he applied and was

qualified for a job for which the defendant was hiring, he was

rejected despite his qualifications, and the defendant continued

to seek applic ations from persons of the plaintiff's

qualifications. McDonnell Douglas , 411 U.S. at 802. Upon such a

showing, the defendant must show some legitimate,

nondi scriminatory reason for rejecting the plaintiff's

application. McDonnell Douglas , 411 U.S. at 8 02 . The defendant

is not required to make this showing by a preponderance of the

evidence; it is required only to raise a genuine issue of fact as

to whether it discriminated against the plaintiff. Tex. Dep't of

Cmt y . Aff. v. Burdine , 450 U.S. 248, 254 (1981). If the

defendant makes such a showing, the presumption of discrimination

raised by the plaintiff's prima facie case is rebutted, and the

plaintiff has the burden of showing that the proffered reason is

a pretext for discrimination. Burdi ne , 450 U.S. at 253 - 56.

20 . Courts apply a modified burden - shifting framework in

cases of alleged discrimination in public accommodation. See

Callwood v. Dave & Buster's, Inc. , 98 F. Supp. 2d 694, 704 (D.C.

Md. 2000) (claims of discrimination in public accommodations

under 42 U.S.C. §§ 1981 and 2002a ); Solomon v. Waffle House ,

Inc . , 365 F. Supp. 2d 1312, 1321 - 22 (N.D. Ga. 2004) (same).

Discrimination in employment differs from discrimination in

providing public accommodation in terms of transactional

legibility: t he hiring and firing of employees is

well - documented compared to the ephemeral nature of the retail

relationships between customers and, say, bartenders . For this

reason, plaintiff s in public accommodation cases will rarely have

evidence to prove better treatment of equally obnoxious customers

who do not share the plaintiffs' personal characteristics, such

as national origin . Callwood , 98 F. Supp. 2d at 705 - 06.

21. T he Callwood court stated the requirements fo r a prima

facie showing of alleged discrimination in providing service at a

restaurant as follows : 1) the plaintiff is a me mber of a

protected class; 2) the plaintiff has made himself available to

receive and pay for services provided by the defendant to all

members of the public in the way that they are normally provided;

and 3) the plaintiff did not enjoy the benefits of the

contracted - for experience under factual circumstances that

rationally support an inference of unlawfu l discrimination

because: a) the plaintiff was deprived services while similarly

situated persons outside of the protected class were not deprived

of those services or b) the plaintiff received services in a

markedly hostile manner and in a manner that a reasonable person

would find o bjectively unreasonable. Callwood , 98 F. Supp. 2d at

707.

22. Paragraph 3.b is the major modification to the burden -

shifting framework of McDonnell Douglas . When the plaintiff

cannot find similarly situated persons outside of the protected

class , he must proceed under paragraph 3.b by proof that the

defendant 's policy supports a rational inference of

discrimination because it is so profoundly contrary to its

manifest financial interests, so far outside of widely accepted

business norms, or so arbit rary on its face. O'Neill v. Gourmet

Sys. of Minn., Inc. , 213 F. Supp. 2d 1012, 1021 (W.D. Wisc. 2002)

(claims of discrimination in public accommodation under 42 U.S.C.

§§ 1981 and 2002a).

23 . Obviously, Petitioner has met the requirements of

paragraphs 1 and 2 above. His nation of origin is Brazil, and he

presented himself at the outdoor bar in the usual manner to

obtain and pay for food and beverages. P aragraph 3.a is not at

issue due to the absence of evidence of how Respondent treat s

customers, not sharing Petitio ner's national origin, who make

obnoxious comments similar to the September 15 Vulgarities. But

Petitioner cannot satisfy paragraph 3.b. In light of the

September 15 Vulgarities, denying Petitioner service at the

outside bar, but offering him service inside, was not profoundly

contrary to Respondent's manifest financial interests, far

outside of widely accepted business norms, or arbitrary on its

face. Thus, Petitioner failed even to make a prima facie showing

of discrimination in providi ng a public accommodation.

24. Rather than use the burden - shifting framework of

McDonnell Douglas , a plaintiff may rely on direct evidence of

discrimination. A major difference in the two methods of proof

is that, if a plaintiff produces direct evidence of

discrimination, the defendant must then rebut the plaintiff's

prima facie proof by a preponderance of the evidence. See, e.g. ,

Wall , 946 F.2d at 809 ; Evans , 131 F.3d at 962 .

25. However, evidence of a focus on a material personal

characteristic, such as national origin, is not di rect evidence

of discrimination, absent evidence that this focus caused the

adverse action, such as a denial of service at the outside bar.

For instance, i n Evans , 131 F.3d at 961 - 62, a supervisor revealed

his focus on race when he said that the plaintiff was a "very

large, very strong, very muscular black male," who was trying to

intimidate smaller or overweight white men. This evidence was

insufficient to establish a discr iminatory basis for the

supervisor's failure to promote and eventual discharge of the

plaintiff .

26. Only the most blatant of remarks -- such as a management

memo stating, "Fire Charley; he is too old" -- constitutes direct

evidence of discriminatory action . I f the statement merely

suggests discriminatory action, the statement is not direct

evidence, although it may support an inference of discriminatory

action. Earley v. Champion Int'l Corp. , 907 F.2d 1077, 1081 - 82

(11th Cir. 1990). In other words, direct evidence of

discrimination comprises evidence of a discriminatory attitude

and evidence that the discriminatory attitude bore directly on

the adverse action. Fulmore v. England , 2009 U.S. Dist.

LEXIS 50101 n.6 (D.C.S.C. 2009). Give n Mr. Carr's knowledge of

the September 15 Vulgarities , the September 25 Vulgarity -- even if

treated as evidence of a discriminatory attitude -- does not

comprise evidence of the motivation driving the decision to deny

Petitioner out side service, even if Mr. Carr had been the

decisionmaker .

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 5th day of February , 2019 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 5th day of February , 2019 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission of Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission of Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Chris topher Donnelly, Esquire

C.J. Donnelly Law Office s PLLC

3020 Northeast 32nd Avenue, Unit 803

Fort Lauderdale, Florida 33308

(eServed)

Jennifer A. Schwartz, Esquire

Arielle S. Eisenberg, Esquire

Brandon U. Campbell, Esquire

Jackson Lewis PC

One Biscayne Tower, Suite 3500

Two South Biscayne Boulevard

Miami, Florida 33131

(eServed)

Joao Fonseca

3020 Northeast 32nd Avenue, Unit 803

Fort Lauderdale, Florida 33308

Mark Rouleau

DuffyÓs Sports Grill

1926 1 0th Avenue North, Suite 300

Lake Worth , Florida 33461

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.