19-005141 Latelra Lewis vs. Publix Supermarkets Status: Closed Recommended Order on Monday, January 27, 2020.

Summary: Petitioner failed to prove, based on the facts in the record, that Respondent's grocery store was a "public accomodation" as defined by section 760.02(11), and was therefore not subject to the FCRA.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATELRA LEWIS ,

Petitioner ,

vs. Case No. 19 - 5141

PUBLIX SUPERMARKETS ,

Respondent .

/

RECOMMENDED ORDER OF DISMISSAL

This case is before the undersi gned on RespondentÓs Motion

for Summary Recommended Order and Incorporated Memorandum of Law

(ÐMotionÑ), filed November 15, 2019. Through its Motion,

Respondent contends that it is not a Ðpublic accommodationÑ as

defined by section 760.02(11), Florida Sta tutes, and therefore

is not subject to the terms of the Florida Civil Rights Act of

1992, as amended, section 760.10, Florida Statutes 1/ (ÐFCRAÑ).

APPEARANCES

For Petitioner: Latelra Lewis, pro se

P ost O ffice Box 29

Waldo, Florida 326 94

For Respondent: Christine E. Howard, Esquire

Brett Purcell Owens, Esquire

Fisher & Phillips, LLP

Suite 2350

101 East Kennedy B oulevard

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The dispositive issue presented is whether Respondent,

Publix Super Markets, Inc. (ÐPublixÑ or ÐRespondentÑ) , is a

Ðpublic accommodationÑ as defined by section 760.02(11), and is

therefore subject to the terms of the FCRA. Having concluded

that the Publix location where the alleged disc riminatory action

took place is not a Ðpublic accommodationÑ as defined by section

760.02(11), it is unnecessary to determine whether the alleged

discriminatory action indeed took place.

PRELIMINARY STATEMENT

On October 12, 2018, Petitioner visited Respond entÓs Store

No. 0795, located on Main Street in Gainesville, Florida. The

store Petitioner visited is a grocery store. Petitioner was at

RespondentÓs grocery store to buy her son lunch. She planned to

take the items she purchased to her sonÓs school.

Pe titioner retrieved all of the items she wanted and walked

to RespondentÓs checkout. Petitioner alleges she was verbally

threatened by Margaret Nugent, a customer, who was also shopping

at RespondentÓs store. Petitio ner has known Ms. Nugent for

10 years a nd did not anticipate that she would be threatened by

Ms. Nugent.

Petitioner was able to purchase all of the items that she

wanted from RespondentÓs grocery store. Teddy Cherena, the

customer service manager, spoke to Petitioner regarding the

incident. P etitioner did not ask Mr. Cherena to do anything in

response to Ms. NugentÓs alleged verbal threats.

Ms. Nugent left the store shortly after allegedly

threatening Petitioner. Mr. Cherena walked Petitioner to the

storeÓs exit. Petitioner left RespondentÓs store and chose to

call 911. Petitioner alleges she was discriminated against

based upon her race because Respondent did not call 911.

However, Petitioner admits she knew she could call 911 at any

time, was able to purchase each item she wanted, and is n ot

aware of any other customers ever being threatened at

RespondentÓs grocery store.

On March 18, 2019, Petitioner filed a Public Accommodation

Complaint of Discrimination with the Florida Commission on Human

Relations (ÐCommissionÑ) concerning the events that allegedly

transpired on October 12, 2018. Having investigated

PetitionerÓs complaint, on September 13, 2019 , the Commission

entered its Determination: No Reasonable Cause. Dissatisfied

with the Commission Ó s determination, on September 20, 2019 ,

Peti tioner filed the Petition for Relief (ÐPetitionÑ) which is

the subject of this proceeding. The Petition was referred to

the Division of Administrative Hearings (ÐDOAHÑ) on

September 25, 2019, and assigned to the undersigned

Administrative Law Judge (ÐALJÑ ) .

The undersigned scheduled the final hearing fo r

November 15, 2019, but on November 8, 2019 , Respondent filed a

Motion for Summary Judgment, asserting that the Publix location

at issue was not a public accommodation subject to the

provisions of FCRA. At tached to the Motion for Summary Judgment

was the transcript of Petitioner Ós deposition, taken on

October 28, 2019 , by counsel for Publix.

Given the potentially dispositive nature of the motion, the

undersigned convened a telephonic motion hearing on Nov ember 13,

2019 , to hear argument on the motion. Having heard argument

from counsel for Publix and from Petitioner, the undersigned

entered a written Order that same day, providing in relevant

part:

1. The final hearing scheduled for

November 15, 2019, is canceled.

2. Ruling is reserved on the Motion for

Summary Judgment.

3. Petitioner may file a written response

to the Motion for Summary Judgment within

7 days of the date of this Order.

4. Within 14 days of the date of this

Order, Respondent may fil e a supplemental

motion for summary recommended order

addressing the factual issue of whether, on

the date of the incident in question,

Respondent was engaged in Ðselling food for

consumption on the premisesÑ and could

therefore fall within the definition of a

public accommodation under section

760.02(11), Florida Statutes. Should

Respondent choose to file a supplemental

motion, Petitioner may file a written

response thereto within 7 days of the filing

of the supplemental motion.

On November 15, 2019 , Re spondent filed the Motion for

Summary Recommended Order at issue. Attached to this motion was

the affidavit of Frank Ammirati, the Assistant Store Manager at

the Publix location at issue.

On November 19, 20, and 26, 2019 , Petitioner filed

voluminous docum ents with DOAH, all of which relate to the

allegations of her alleged mistreatment by Publix, and none of

which address the issue of whether Respondent was engaged in

Ðselling food for consumption on the premisesÑ and could

therefore fall within the defini tion of a public accommodation

under section 760.02(11).

The Motion for Summary Recommended Order invokes the

procedure in section 120.57(1)(i), Florida Statutes, which

provides as follows:

When, in any proceeding conducted pursuant

to this subsection, a dispute of material

fact no longer exists, any party may move

the administrative law judge to relinquish

jurisdiction to the agency. An order

relinquishing jurisdiction shall be rendered

if the administrative law judge determines

from the pleadings, depo sitions, answers to

interrogatories, and admissions on file,

together with supporting and opposing

affidavits, if any, that no genuine issue as

to any material fact exists. If the

administrative law judge enters an order

relinquishing jurisdiction, the ag ency may

promptly conduct a proceeding pursuant to

subsection (2), if appropriate, but the

parties may not raise any issues of disputed

fact that could have been raised before the

administrative law judge. An order entered

by an administrative law judge r elinquishing

jurisdiction to the agency based upon a

determination that no genuine dispute of

material fact exists, need not contain

findings of fact, conclusions of law, or a

recommended disposition or penalty.

The undersigned has determined from the pl eadings,

deposition transcript, and affidavit on file that no genuine

issue as to any material fact exists with regard to the

dispositive issue raised by the Motion for Summary Recommended

Order, and that, based on the undisputed facts, the Petition

should be dismissed.

While it is recognized that, per section 120.57(1)(i), this

Order Ðneed notÑ contain findings of fact, conclusions of law,

and recommended disposition, the undersigned chooses to do so

here, to fully explain the bases for these determinatio ns and to

offer the legal analysis leading to the recommended disposition.

FINDING S OF FACT

1 . On October 12, 2018, Petitioner visited RespondentÓs

Store No. 0795, located on Main Street in Gainesville, Florida.

The store Petitioner visited is a grocery s tore.

2 . Petitioner was at RespondentÓs grocery store to buy her

son lunch. She planned to take the items she purchased to her

sonÓs school. Typically, when she goes to RespondentÓs grocery

store, she buys groceries to take back to her house or to her

s onÓs school.

3 . Petitioner has known Margaret Nugent for over 10 years.

In the past Ms. Nugent has upset Petitioner.

4 . Ms. Nugent uses a motorized red chair to traverse

RespondentÓs premises.

5 . Petitioner walked in RespondentÓs entrance to get her

s on lunch for school. As Petitioner entered the store, she saw

Ms. Nugent, and said ÐHi, Ms. Nugent, Ms. Nugent.Ñ

6 . Petitioner continued picking up the items that she was

purchasing for her son, and then walked to RespondentÓs

checkout.

7 . Donna, the c ashier, waited on Petitioner. Petitioner

acknowledged that Donna did everything in the checkout process

correctly.

8 . While Petitioner wa s waiting to buy her items,

Ms. Nugent pulled to the back of the checkout and said ÐYou want

to know a secret?Ñ Peti tioner said no, and then Ms. Nugent

said, ÐThe next time you call my name out like this, IÓm gonna

cut your throat and kill you.Ñ Ms. Nugent then took off in her

motorized chair.

9 . Hearing this exchange, Donna contacted Mr. Cherena, the

customer servic e manager, and asked him to come to the register.

Petitioner told Mr. Cherena what Ms. Nugent had said to her.

Mr. Cherena thanked Petitioner for letting him know and told her

they would keep an eye out.

10 . Petitioner was able to purchase all of the i tems that

she wanted from RespondentÓs store.

11 . Mr. Cherena walked Petitioner to an exit of the store

and pointed to the other exit because Ms. Nugent was utilizing

the same to exit the store.

12 . Petitioner did not ask Mr. Cherena to do anything in

re sponse to what Ms. Nugent said to her. Petitioner knew she

could call 911 if she wanted to, and in fact, she did so upon

exiting the store. The police then arrived at the store and the

investigating officer discussed the matter with Petitioner.

13 . Pet itioner believes Ms. Nugent thought she was a

threat because Petitioner was v isiting a mutual friend and

Ms. Nugent thought that Petitioner was selling their friend

prescription pain pills.

14 . Petitioner is alleging she was discriminated against

based on her race (Black) because Respondent failed to call the

police.

15 . Petitioner did not have any in d i c ation that Ms. Nugent

was going to threaten her. Petitioner also admits that

Respondent would not have had any idea that Ms. Nugent would

threaten Petit ioner on October 12, 2018.

16 . Petitioner is not aware of any other customers in the

past being threatened at the store.

17 . Petitioner admits that no one at the store made any

remarks or slurs regarding her race.

18 . Frank Ammirati is the assistant s tore manager at

Publix Store 0795.

19 . Publix Store 0795 is a grocery store that is

principally engaged in selling packaged food, consumer goods,

and other items for consumption and use at off - site locations

not located on the premises of the store.

20 . Publix Store 0795 does not have any designated areas

for customers to consume food on the premises. Likewise, there

are no restaurants, lunchrooms, cafeterias, cafés , or designated

tables at the store for customers to consume food that they have

purchased at the store.

CONCLUSIONS OF LAW

21 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes. In her initial complaint of discrim ination against

Publix, Petitioner claims that she was "discriminated against

based on my race (Black). While shopping at Publix on

10/12/2018, I was harassed, and my life was threatened by

another customer (White - female). Publix failed to do anything

re garding this matter and failed to call the police.Ñ

Publix is not a Public Accommodation under the FCRA

22 . The first issue to determine in this matter is whether

Publix constitutes a place of Ðpublic accommodationÑ as defined

by the FCRA.

23 . Section 76 0.08 provides: ÐAll 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 without discrimination or

segregation on the ground of race, c olor, national origin, sex,

pregnancy, handicap, familial status, or religion.Ñ Fla. Stat.

§ 760.08. The threshold question in this matter is whether

Respondent is a place of public accommodation as defined by

section 760.02(11).

24 . Section 760.02(11 ) defines Ðpublic accommodationsÑ

narrowly to include only the following:

(11) ÐPublic accommodationsÑ means places

of public accommodation, lodgings,

facilities principally engaged in selling

food for consumption on the premises,

gasoline stations, place s of exhibition or

entertainment, and other covered

establishments. Each of the following

establishments which serves the public is a

place of public accommodation within the

meaning of this section:

(a) Any inn, hotel, motel, or other

establishment whi ch provides lodging to

transient guests, other than an

establishment located within a building

which contains not more than four rooms for

rent or hire and which is actually occupied

by the proprietor of such establishment as

his or her residence.

(b) An y restaurant, cafeteria, lunchroom,

lunch counter, soda fountain, or other

facility principally 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, o r any gasoline station.

(c) Any motion picture theater, theater,

concert hall, sports arena, stadium, or

other place of exhibition or entertainment.

(d) Any establishment which is physically

located within the premises of any

establishment otherwise covered by this

subsection, or within the premises of which

is physically located any such covered

establishment, and which holds itself out as

serving patrons of such covered

establishment.

25 . It is well settled that not all establishments that

are open to the public will consti tute a place of Ðpublic

accommodationÑ under the FCRA. Moreover, governing case law

establishes that not all businesses that make food products

available to the public are included in the FCRAÓs definition of

Ðpublic accommodation.Ñ See Pena v. FredÓs St ores of Tenn.,

Inc. , 2009 U.S. Dist. LEXIS 121360, at *6 (N.D. Fla. Dec. 31,

2009)(A retail store chain that sold pre - packaged food and

beverage items that were not specifically sold for consumption

on the premises (as there was no eating area) was not a Ð public

accommodationÑ under the FCRA.); Amiri v. Safeway, Inc. , 1999

U.S. Dist. LEXIS 933, *2 - 3 (D.D.C. Jan. 26, 1999)(ÐA grocery

store . . . does not fall within the definition of public

accommodation.Ñ); Jones v. Wal - Mart , 2010 U.S. Dist. LEXIS 9801,

at *5 (W.D. La. Jan. 14, 2010)(Retail stores, food markets and

the like are not within the ambit of 42 U.S.C. § 2000a.);

Gigliotti v. Wawa, Inc. , 2000 U.S. Dist. LEXIS 1021, (E.D. Pa.

Feb. 2, 2000)(A retail store Ðwas not principally engaged in

selling food for consumption on premises where store sold food

which was ready to eat but had no facilities for consumption of

food on premises.Ñ); Moralez v. Whole Foods Mkt. Cal., Inc. ,

2015 U.S. Dist. LEXIS 165174, at *9 (N.D. Cal. Dec. 9, 2015)(The

ability to purch ase food ready - to - eat at a grocery store and to

eat it on or near the property does not convert the location

into a restaurant or other public accommodation within the

meaning of 42 U.S.C. § 2000a.); but cf. Thomas v. Tops Friendly

Mkts. , 1997 U.S. Dist. L EXIS 15887 (N.D. N.Y. 1997) (The presence

of an Ðeating areaÑ inside or outside of a grocery store was

deemed sufficient to establish that the store was a Ðpublic

accommodationÑ).

26 . In addition to the above - cited federal cases, based

upon the doctrine of expressio unius est exlusio alterius , the

fact that retail stores, such as the one at issue in this

proceeding , are not specifically listed in s ection 760.02(11),

reflects a legislative intent that the statute does not

encompass such establishments. Fabi ano v. Target Corp . , Case

No. 08 - 5858 (Fla. DOAH Apr. 6, 2009; Fla. FCHR July 1,2009)

(FCRA excludes retail stores). 2/ In Darrell Alford v. Publix

Super Markets, Inc. , Case No. 15 - 3620 (Fla. DOAH Feb. 2, 2016),

the ALJ concluded that a grocery store was n ot a Ðpublic

accommodationÑ without some evidence of an Ðeating areaÑ on the

premises. In Morales v. Winn - Dixie Stores, Inc. , Case

No. 08 - 5166 (Fla. DOAH Dec. 24, 2008; Fla. FCHR Mar. 16, 2009),

the Commission adopted the ALJÓs conclusion that the Winn - D ixie

grocery store at issue was not a place of public accommodation

under the facts presented , stating that Ð the Commission did not

exclude the possibility that a grocery store could be a Òpublic

accommodationÓ under a different set of facts. Ñ In Baker v.

Maycom Commu n ications /Sprint - Nextel , Case No. 08 - 5809 (Fla. DOAH

Dec. 22, 2008; Fla. FCHR Mar. 16, 2009), the ALJ observed that

the FCRA Ðonly prohibits discrimination by statutorily - defined

Ò public accommodations Ó ; it does not prohibit discrimination in

all business contexts.Ñ The ALJ concluded that the omission of

retail stores from the public accommodations specifically listed

in section 760.02(11) reflects a legislative intent that the

statute does not encompass such establishments.

27 . The undisput ed facts establish that the Publix store

at issue is not a Ðpublic accommodationÑ for purposes of the

FCRA. The grocery store does not contain a Ðrestaurant,

cafeteria, lunchroom, lunch counter, [or] soda fountain.Ñ

Neither is it Ðprincipally engaged in selling food for

consumption on the premises.Ñ Publix does not hold itself out

as serving food to patrons at its Main Street location, nor does

it maintain a designated eating area for customers to consume

its retail goods on - site. Accordingly, based on the competent

substantial evidence in the record, Publix Store No. 0795 is not

subject to the public accommodation provisions of the FCRA.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent, Publix

Super Markets, Inc. (Store No. 0795) is not a place of Ðpublic

accommodationÑ under the facts of this case. Accordingly, the

Petition for Relief filed in this matter should be dismissed.

DONE AND ENTERED this 2 7 th day of January , 2020 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Par kway

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 2 7 th day of January , 2020 .

ENDNOTE S

1/ Citations shall be to Florida Statutes (201 9) unless

otherwise specified. Section 760.10 has been unchanged since

1992, save for a 2015 amendment adding pregnancy to the list of

classifications protected from discriminatory employment

practices. Ch. 2015 - 68, § 6, Laws of Fla.

2/ While ALJ R. Br uce McKibbenÓs Recommended Order was adopted

in toto , the Commission observed that Ðin our view, if a food

establishment as described in the statute, above, is located

within a Ðretail store,Ñ the Ðretail storeÑ would b e a Ðpublic

accommodationÑ by definition, regardless that the statute does

not specifically say that Ðretail storesÑ are public

accommodations. This possible exception does not apply under the

facts sub judice .

COPIES FURNISHED:

Tammy S. Barton, Agen cy Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

John Bateman, Esquire

Publix Supermarket, Inc.

Post Office Box 407

Lakeland, Florida 33802

Latelra Lewis

Post Office Box 29

Waldo, Flor ida 32694

Brett Purcell Owens, Esquire

Fisher & Phillips, LLP

Suite 2350

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Christine E. Howard, Esquire

Fisher & Phillips LLP

Suite 2350

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(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.