20-001763 Justo Lopez vs. Homewood Suites Hilton Status: Closed Recommended Order on Tuesday, August 18, 2020.

Summary: Hilton Homewood discriminated against guest because of race and ethnicity. Evicting minority guest on basis of white guest's claims without speaking to the minority guest who had complained of white guest was sufficient circumstantial evidence.

P RELI MINARY S TATEMENT

Mr. Lopez filed a Public Accommodation Complaint of Discrimination with

the Florida Commission on Human Relations (Commission) alleging that

Homewood discriminated against him on account of his race, color, sex, and

national origin. The Co mmission issued a Determination of No Reasonable

Cause. Mr. Lopez filed a Petition for Relief from a Discriminatory Public Accommodation Practice. On April 9, 2020, the Commission referred the dispute to the Division to conduct a hearing. The undersigned c onducted the

hearing.

Mr. Lopez presented his testimony and Petitioner's Exhibits 1 and 2.

H omewood presented the testimony of Deborah Clark and Respondent's

Exhibit 3. The parties timely submit ted proposed recommended orders. They

have been considered i n the preparation of this Order.

F INDINGS OF F ACT

1. Mr. Lopez is a disabled Navy veteran. Mr. Lopez had stayed at

Homewood b efore the events at issue here. On August 3 and 4, 2019,

Mr. L opez was a guest of Homewood. He was there with h is wife and four -

y ear - old grandchild . That afternoon Mr. Lopez was doing laundry in the hotel

laundry room. He was using both dryers for his clothes. His clothes were

drying slowly. While Mr. Lopez was in the laundry room, Deborah Borchart ,

a Caucasian woman , washed her clo thes. Mr. Lopez left the room planning to

return later to check on his clothes.

2. Mr. Lopez received a call from the desk clerk telling him another guest

wanted to use the dryers. That guest was Ms. Borchart. Mr. Lopez explained that the clothes were dry ing slowly and needed another half hour. A little

later the desk clerk called again about Ms. Borchart wanting to use the dryers.

3. Mr. Lopez returned to check on his clothes. The clothes were not dry.

He added coins to the dryer. He told Ms. Borch a rt t hat the clothes were not

dry a nd that there would be a wait. Ms. Borcha rt began yelling and cursing

at him, shouting that he was not the only person in the hotel. Mr. Lopez

asked her to wait and said that he too was entitled to use the dryers. "Why

are you using both dryers ? " she asked. She said: "Everybody needs to use the

dryers. Take your stuff out or I will call the police."

4. Mr. Lopez removed lint from the dry er s to speed up the drying process.

He emptied the lint in the garbage can. Mr. Lopez passe d within two or three

feet of Ms. Borch a rt to throw the lint away. He did not push Ms. Borch a rt or

st e p on her foot.

5. After leaving the laundry room, Mr. Lopez told the desk clerk of

Ms. Borch a rt's verbal abuse and threat to call the police. There is no evidence

that the desk clerk reported this to the manager, Deborah Clark, who was not

on site.

6. After ten or 15 minutes, Mr. Lopez returned to the laund ry room to

check on his clothes. Ms. Borchar t again cursed him , complained about him

using the dryers , and threatened to call the police.

7. Mr. Lopez removed his clothes although they were still damp. When he

left, he told Ms. Borch a rt , " S orry for any inconvenience." He put the clothes

in his room. Then he left with his wife and grandchild to find a place to eat.

8. During all of these encounters , Mr. Lopez and Ms. Borch a rt were the

only people in the laundry room. Ms. Borch a rt told the desk clerk that Mr.

Lopez yelled at her, st e pped on her foot, and shoved her. Ms. Borcha rt asked

the clerk to call the po lice. Mr. Lopez did not shove Ms. Borch a rt or stamp on

her foot.

9. Homewood attempted to support Ms. Borchart's reported account of

events with hearsay that was not admissible pursuant to a proven hearsay

exception and did not corroborate any admissible a dverse evidence.

10. The desk clerk called Ms. Clark to report Ms. Borchart's complaint and

her demand for a call to law enforcement. Ms. Clark directed the clerk to

contact law enforcement and transfer her to the laundry room telephone so

she could speak to Ms. Borchart. Ms. Clark did not attempt to speak to Mr.

Lopez. The desk clerk calle d law enforcement for Ms. Borcha rt. Two deputy

sheriffs responded.

11. While Mr. Lopez and his family were looking for a place to eat, a

deputy called him and asked wher e he was. Mr. Lopez told the deputy that he

was with his family looking for a place to eat. The deputy called again asking

when he would return. The deputy said he and a colleague were at the hotel

waiting for Mr. Lopez . Mr. Lopez and his family returned t o the hotel to

speak with the deput ies . One deputy spoke to Mr. Lopez. The other spoke to

his wife.

12. The deputies also spoke to employees of Homewood. The deputies did

not arrest Mr. Lopez or bring charges against him. Their report of the

incident quest ions the credibility of Ms. Borch a rt and notes that her foot was

not injured . It concludes that "probable cause for an arrest could not be

developed for this incident."

13. Ms. Clark claimed she did not know Mr. Lopez's ethnicity. However,

Ms. Clark knew M r. Lopez from previous stays at Homewood. She had met

him twice before. These interactions gave her an opportunity to see and hear

him. She knew that he was both African American and Hispanic. Mr. Lopez' s

race is apparent when you look at him. His surname and accent reveal his

Hispanic heritage. Ms. Clark's testimony that she did not know Mr. Lopez's

ethnicity is not credible , and a factor undermining her credibility in general. 2

14. Ms. Clark directed Homewood employees to evict Mr. Lopez and

enlisted ass istance from law enforcement . She based this decision solely on

2 Disbelief of the explanation for the alleged discriminatory act accompanied by a suspicion of mendacity

permits the trier of fact to infer the ultimate fact of intentional discrimination. Reeves v. Sanderson

Plumbing Products, Inc. , 530 U.S. 133, 147 (2000).

Ms. Borchart's description of events, either statements made directly to Ms.

Clark or statements to Homewood employees . The employees were not

present in the laundry room and could only report what Ms. Borch a rt told

them.

15. After interviewing employees , Ms. Borchart, Mr. Lopez, and motel

employees to whom Ms. Borchart had talked, a deputy advised Ms. Clark of

the conclusion that a crime had not occurred and there was no probable cause

for an arrest. It is reasonable to infer that the deputy relayed the

observations and conclusions memorialized in an Incident Report , including

that Ms. Borchart had no injury, that her statements were inconsistent, that

her statements omitted information, and t hat neither she nor the desk clerk

disclosed Mr. Lopez's earlier complaint to the desk clerk about Ms. Borchart's

verbal abuse .

16. Nonetheless , Ms. Clark directed the desk clerk to evict Mr. Lopez and

his family and ask the deputies to escort them out. Mr . Lopez asked to speak

to Ms. Clark. His request was not granted. There is no explanation why

Ms. Clark did not speak to Mr. Lopez.

17. Mr. Lopez and Ms. Borchart were similarly situated. Both were guests

of Homewood. Both were using the motel's laundry fa cility. Both complained

of the other being abusive.

18. Homewood treated Mr. Lopez differently and worse than it treated

Ms. Borchart . Ms. Clark relied solely upon Ms. Borch a rt's account of ev ents,

as recounted by Ms. Borcha rt or as relayed by Homewood em ployees. The

record offers no explanation why Ms. Clark did not speak to Mr. Lopez. The

evidence does not prove why Ms. Clark evict ed Mr. Lopez, an African

American Hispanic , paying , repeat guest and his family solely upon the

statement of a Caucasian fema le without speaking to the African American

Hispanic guest. The totality of the circumstances, the demeanor of the

witnesses, and the lack of a persuasive explanation for the decision to evict

Mr. Lopez' s family without speaking to him reasonably support a n inference

that the decision was the result of bias against Mr. Lopez on account of his

race , ethnicity or both.

1 9 . A t Homewood's request, a deputy escorted Mr. Lopez, his wife, and his

grand child to their fifth floor room to gather their belongings. The family was

given ten minutes to accomplish this. The officers then escorted the Lopez

family to their car on a rainy night .

20 . Mr. Lopez begged the employees to permit them to stay the night.

They said they were required to comply with Ms. Clark's instr uction.

21 . During all these events, each time Mr. Lopez and his family passed

near the lobby Ms. Borchart, laughing loudly , watched them .

2 2 . A few weeks later, in response to a complaint from Mr. Lopez,

Homewood refunded Mr. Lopez's payment for the Augu st 4, 2019, stay.

C ONCLUSIONS OF L AW

2 3 . Sections 120.569, 120.57(1), and 760.11( 7 ) , Florida Statutes, grant the

Division jurisdiction over the parties and subject matter of this cause. See

also Fla. Admin. Code R. 60Y - 4.016.

2 4 . Mr. Lopez bring s this act ion under the Florida Civil Rights Act ( Civil

Rights Act) . He allege s that Homewood discriminated against him on account

of his ethnicity and race in violation of section 760. 23 . Mr. Lopez must prove

by a preponderance of the evidence that Homewood violate d the Civil Rights

Act by discriminating against him because of his race or ethnicity.

§ 1 20.57(1)(j), Fla. Stat. ; See Young v. Dep't of Cm ty . Aff . , 625 So. 2d 831 (Fla.

1993) ( T he general rule is that a party asserting the affirmative of an issue

bears th e burden of proof. ).

2 5 . The Civil Rights Act prohibits discriminat i o n in places of public

accommodation. It provides, in pertinent part:

All 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 segregation on the ground of race,

color, national origin, sex, pregnancy, handicap,

familial status, or religion.

§ 760.08, Fla. Stat. A motel like Homewood is a place of p ublic

accommodation. § 760.02(11)(a), Fla Stat.

26 . The Florida Legislature modeled the Civil Rights Act after Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. § 12182 . Consequently,

interpretation of the federal law is instructive and pers uasive in applying

Florida ' s Civil Rights Act. See e.g. Valenzuela v. GlobeGround N. Am., LLC ,

18 So. 3d 17, 21 (Fla. 3d DCA 2009) ; Dornbach v. Holley , 854 So. 2d 211, 213

(Fla. 2d DCA 2002) ; Bhogaita v. Altamonte Heights Condo. Ass'n, Inc. , 765

F.3d 1277 , 1285 (11th Cir. 2014) . Injured individuals may prove intentional

discrimination through direct evidence, pattern and practice evidence, or

circumstantial evidence. Direct evidence is evidence that , if believed , would

prove discrimination without need for inference or presumption. Pattern or

practice evidence shows discrimination is a standard operating procedure

using historical evidence and/or statistical evidence. Brooks v. Collis Foods,

Inc. , 365 F. Supp. 2d 1342, 1352 (N.D. Ga. 2005). There is no direc t evidence

of discrimination against Mr. Lopez. Nor is there pattern and practice

evidence. The preponderance of the circumstantial evidence, however, proves

unlawful discrimination.

2 7 . Claims of discrimination in public accommodation s under the Civil

Ri ghts Act relying on circumstantial evidence apply the same prima facie

standards and burdens of proof as employment discrimination claims under

federal law. Riley v. Red Carpet Inn , Case No. 04 - 4453 (Fla. DOAH May 25,

2005; FCHR Case No. 2004 - 22163 July 21 , 2005). This means Mr. Lopez

must prove a prima facie case of discrimination with circumstantial evidence

that supports a fair inference of unlawful discrimination. If he does so,

Homewood may counter with evidence that it evicted him for legitimate

nondi scriminatory reasons. Mr. Lopez may show that Homewood's

explanations are not credible or are only a pretext for discrimination.

St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502 (1993) ; Powell v. Super 8 Motels,

Inc. , 181 F . Supp. 2d 561 (E.D. NC 2000).

2 8 . Mr . Lopez must prove the following elements to establish his prima

facie case: (1) he is a member of a protected class; (2) he attempted to enjoy

the full benefits and enjoyment of a public accom modation; and (3) he was

denied those benefits and enjoyment; a nd (4) simila rly situated people who

are not members of the protected class received the full benefits and

enjoyments of the public accommodation or were treated better. Riley v. Red

Carpet Inn , Case No. 04 - 4453 (Fla. DOAH May 25, 2005; FCHR Case No.

2004 - 22163 July 21, 2005). If he does, Homewood may counter that it had a

legitimate non - discriminatory business reason for evicting him. Mr. Lopez

may show that the reason is a pretext. The parties presented evidence

relevant to all these elements and defenses .

2 9 . The following are the determinative facts to which the legal analysis

must be applied.

A. Mr . Lopez, his wife, and their four - year old grandchild were paying

guests of Homewood on August 3 and 4, 2019.

B. Mr. Lopez is clearly Hispanic and African Ame rican. This would have

been obvious to the desk clerk. The m anager, Ms. Clark, knew Mr. Lopez was

Hispanic and African American because she knew him from previous stays at

the motel. Ms. Clark's claim that she only knew that Mr. Lopez was African

American is not credible and undermines the credibility and persuasiveness

of her other testimony.

C. Mr. Lopez was using the dryers in the motel laundry room. As a guest,

he had every right to use them.

D. Ms. Borch a rt , a Caucasian female, was upset about Mr. Lope z using

the dryers, was verbally abusive to him, and said she would call the police if he did not remove his clothes from the dryer.

E. Mr. Lopez complained to the Homewood desk clerk about

Ms. Borchart's verbal abuse and threat.

F. The desk clerk took no action and did not report Mr. Lopez's complaint

of abuse to the manager.

G. Later, at Ms. Borchart's request, the desk clerk called Mr. Lopez to tell

him Ms. Borchart had complained about him and to encourage Mr. Lopez to

acquiesce in her demand to remove his laundry before it was dry. This

contrasts with the clerk's inaction in response to Mr. Lopez' s complaint.

H. When Mr. Lopez returned to the laundr y room and removed his

clothes, Ms. Borchart continued her verbal abuse and threats to call the

police.

I. Mr. Lopez removed his clothes although they were still damp, and left

with his family.

J. Mr. Lopez did not push Ms. Borchart or step on her foot.

K. Ms. Borchart told the desk clerk that Mr. Lopez pushed her and

stepped on her foot and had been verball y abusive.

L. The desk clerk called the manager, Ms. Clark, about Ms. Borchart's

claims although she had not called about Mr. Lopez' s c omplaint . Ms. Clark

had the clerk transfer the call to the laundry room and spoke to Ms. Borchart.

M. Ms. Borchart asked Ms. Clark to call law enforcement. Ms. Clark did.

N. Ms. Clark spoke to two other employees about the alleged incident.

They, like the desk clerk, only knew what Ms. Borchart told them.

O. Deputy Sheriffs responded to the call. After investigating, the de puties

advised Ms. Clark that they learned nothing that required action.

P. Ms. Clark never spoke to Mr. Lopez or attempted to speak to him.

Q. Mr. Lopez asked to speak to Ms. Clark. She did not speak to him.

R. Ms. Clark evicted Mr. Lopez, his wife, and four - year - old grandchild into

the rainy night relying only on the complaint of Ms. Borchart.

S. Ms. Clark says that she evicted Mr. Lopez and his family for guests'

safety. However, there is no evidence of risks to any guest other than

Ms. Borchart's claim s about a single, specific dispute in the laundry room

about use of the dryers that was over.

T. Homewood and its witnesses offer ed no explanation of why Mr. Lopez' s

complaint about Ms. Borchart's abusive behavior was not relayed to Ms.

Clark.

U. Homewood and its witnesses offer no explanation why Ms. Clark would

not speak to Mr. Lopez or why she took a Caucasian woman's word about the

incident without speaking to Mr. Lopez , even though the deputies'

investigation revealed no need for them to take action.

3 0 . The facts established that Mr. Lopez and Ms. Borchart were similarly

situated. Both were guests of Homewood. Both reported conflict in the

laundry room.

31 . The facts establish that Homewood treated them differently.

Homewood did not take Mr. Lopez' s r eport seri ously or act upon it.

Homewood did take Ms. Borchart's report seriously. Homewood obtained Ms.

Borchart's version of the second encounter in the laundry room. It did not

seek Mr. Lopez's account. Homewood rejected Mr. Lopez 's request to speak to

the manager and provide his version of events . Homewood does not explain

why one guest's account was accepted without question and used to evict a family while another guest ' s account was not even hear d.

3 2 . The fair and reasonable inference is that Mr. L opez's race and

ethnicity were the reason Homewood accepted Ms. Borchart's account without question and did not even permit Mr. Lopez to provide his account.

33 . The evidence also does not establish, as Ms. Clark claimed, that

Mr. Lopez was a safety risk t o guests. Even accepting Ms. Borchart's version

of the event , it was an i solated occurrence involving a specific dispute over

use of dryers , and it was over. (Of course all the testimony about Ms.

Borchart's description of events was hearsay that cannot be the basis for a

finding of fact. § 120.57(1)(c), Fla. Stat.) Homewood did not prove a legitimate

business purpose for refusing to hear Mr. Lopez's account of events in the

l aundry room or for evicting his family without doing so. The evidence proved

that Homewood intentionally discriminated against Mr. Lopez on account of

his race and ethnicity.

34 . Section 760.11( 7 ) determ ines the remedies to which Mr. Lopez is

entitled. It provides:

If the administrative law judge finds that a

violation of the Florida Civil Rights Act of 1992 has occurred, he or she shall issue an appropriate recommended order to the commission prohibiting

the practice and recommending affirmative relief

from the effects of the practice, including back pay.

35 . Mr. Lopez seeks $100,00 0 for pain and suffering of his family, a letter

of apology from Homewood, and a requirement that he be permitted to st ay

at the motel in the future. The law does not make the first two remedies

available. The third remedy is available and recommended.

R E COMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that The Florida Commission on Human Relations enter a

final order granting Mr. Lopez's Petition for Relief and prohibiting

Respondent, Homewood Suites , Hilton, from discriminating against Mr.

Lopez or any other Hispanic or African American guest in the terms and

conditions of lodging there including , but not limited to, accommodations, and

guest privileges .

D ONE A ND E NTERED this 18th day of August, 2020 , in Tallahassee, Leon

County, Florida.

J OHN D. C. N EWTON , II

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.f l.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of August , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eS erved)

Justo Lopez

Post Office Box 6845

Ithica, New York 14851 - 6845

(eServed)

Stacey M. Bosch, Esquire

Rissman, Weisberg, Barrett, Hurt,

Donahue & McLain, P.A.

1 North Dale Mabry Highway

Tampa, Florida 33609

(eServed)

Richard B. Mangan, Jr., Esq uire

Rissman, Weisberg, Barrett, Hurt,

Donahue & McLain, P.A.

1 North Dale Mabry Highway

11th Floor

Tampa, Florida 33609

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florid a 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 issu e the Final Order in this

case.