20-002501
Ayinde Crespo vs.
Steak-N-Shake
Status: Closed
Recommended Order on Thursday, March 11, 2021.
Recommended Order on Thursday, March 11, 2021.
1S TATE OF F LORIDA
6D IVISION OF A DMINISTRATIVE H EARINGS
13A YINDE C RESPO ,
17Petitioner ,
18vs. Case No. 20 - 2501
24S TEAK - N - S HAKE ,
31Respondent .
33/
34R ECOMMENDED O RDER
38Administrative Law Judge ( " ALJ " ) Brittany O. Finkbeiner conducted the
49final hearing in this case for the Division of Administrative Hearings
60( " DOAH " ) on October 13, 2020, by Zoom conference.
70A PPEARANCES
72For Petitioner: And re w W i l l i a ms, Esqu i re
87The W i l l i a ms L a w G ro u p
1026273 S uns e t Driv e , S ui t e D - 3
116Miami, F L 33143 - 8815
122For Respondent: J . Rob e rt M c Corm ac k, Esquire
135I n a F . You n g , Esquire
144O g let r ee , D ea kins, N a sh, S moak & S te wa rt, P.C.
163100 No r th T a mpa S t r e e t, S ui t e 3600
181T a mpa, F L 33602
187S TATEMENT OF T HE I SSUE
194The issue in this case is whether Respondent, S teak - N - Shake
208( " Respondent " ), is liable to Petitioner, Ayinde Crespo ( " Petitioner " ), for
221discrimination in a place of public accommodation, in violation of section
232760 . 08, Florida Statutes.
237P RELIMINARY S TATEMENT
241Petitioner filed a complaint with the Flor ida Commission on Human
252Relations ( " Commission " ) on May 1 4 , 2019, alleging that Respondent
264discriminated against h im pursuant to c hapter 760, the Florida Civil Rights
277Act ( " FCRA " ), on the basis of h is " race " and " color . " On April 23, 2020,
295f ollowing an inv estigation, the Commission issued a determination that there
307was no reasonable cause to conclude that an unlawful practice occurred .
319Petitioner elected to pursue administra tive remedies, timely filing a
329P etition for R elief with the Commission on Ma y 28 , 2020. The Commission
344referred the matter to DOAH to assign an ALJ to conduct the final hearin g.
359The final hearing was held on October 13 , 2020 .
369Petitioner testified on his own behalf and did not call any other witnesses.
382PetitionerÔs Exhibits 1 through 3 were admitted into evidence. Respondent
392presented the testimony of Steven Lebrun ( " Mr. Lebrun " ) and Latoya Nelson
405( " Ms. Nelson " ) . RespondentÔs Exhibit 6 was admitted into evidence. The
418parties did not order a transcript of the proceedings. However, both pa rties
431filed proposed recommended orders, which were considered in the drafting of
442this Recommended Order.
445Unless otherwise indicated, references to the Florida Statutes are to the
456201 8 version.
459F INDINGS OF F ACT
4641. Petitioner is an African American male.
4712. O n August 21, 2018, Petitioner visited RespondentÔs restaurant located
482at 990 Federal H ighway , in Hallandale Beach, Florida.
4913. At some point during his time in RespondentÔs restaurant, Petitioner
502began arguing with the manager of the restaurant , Mr. Lebrun , who then
514called law enforcement to assist in removing Petitioner from the restaurant.
5254 . Based on the credible testimony of RespondentÔs employees, Mr. Lebrun
537and Ms. Nelson, Petitioner left RespondentÔs restaurant without paying for
547his food on a previous occasion . Petitioner paid for his meal , on the previous
562occasion, only after Mr. Lebrun confronted him outside of the restaurant
573about his failure to pay .
5795 . Petitioner testified that , on August 21, 2018, Mr. Lebrun insulted him
592with unprompted homophobic slurs and forced him to leave the restaurant
603without finishing his meal after Petitioner requested extra onions. Petitioner
613testified that he perceived the words and actions of Mr. Lebrun, who is also
627African American, to be based on intra - racia l discriminatory animus.
639Petitioner further testified that Mr. Lebrun called law enforcement with the
650intent to intimidate Petitioner. PetitionerÔs version of events lack s credibility ,
661is not supported by the evidence, and is , therefore , rejected.
6716 . Peti tioner filmed part of his interaction with Mr. Lebrun. The footage,
685however, d id not include racist or homophobic language, or any other
697indicator of discrimination . A Caucasian female patron , whom Petitioner
707offered as a comparator, was visible in the vid eo. However, no further
720evidence was presented to make a comparison between that patron and
731Petitioner.
732C ONCLUSIONS OF L AW
7377 . DOAH has personal and subject matter jurisdiction in this proceeding
749pursuant to sections 120.569 and 12 0.57(1), Florida Statutes .
7598 . Section 760.08 states, in its entirety:
767All persons are entitled to the full and equal
776enjoyment of the goods, services, facilities,
782privileges, advantages, and accommodations of any
788place of public accommodation without
793discrimination or segregation on the ground of race,
801color, national origin, sex, pregnancy, handicap,
807familial status, or religion.
8119 . The FCRA is modeled after Title VII of the Civil Rights Act of 1964 .
828Accordingly , cases interpret ing federal discrimination law are instructive and
838p ersuasive in analyzing claims under the FCRA. See, e.g., Valenzuela v.
850GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009) .
86410 . Petitioner must prove the elements of public accommodation
874discrimination by a preponderance of the evidence. § 120.57( 1)(j), Fla. Stat .
8871 1 . In this case, Petitioner must first prove a prima facie case of
902discrimination with circumstantial evidence that supports a fair inference of
912unlawful discrimination. If he does so, Respondent may explain that it
923prevented Petitioner from remaining in the restaurant for nondiscriminatory
932reasons. If Respondent satisfies this burden, Petitioner may show that
942RespondentÔs explanations are not credible or are only a pretext for
953discrimination . See LaRoche v. Denny's, Inc. , 62 F. Supp. 2d 1366 (S.D. Fla.
9671999).
9681 2 . To prove his prima facie case , Petitioner must establish that he:
982(1) is a member of a protected class;
990(2) attempted to afford himself the full benefits
998and enjoyment of a public accommodation;
1004(3) was denied the full bene fit or enjoyment of a
1015public accommodation; an d
1019(4) such services were available to similarly
1026situated persons outside his protected class who
1033received full benefits or who were treated better.
1041Id. at 137 0 .
10461 3 . Petitioner satisfied the first prong by esta blishing that he is part of a
1063protected class within the meaning of the FCRA, which prohibits
1073discrimination, in pertinent part, based on " race " and " color. " Petitioner
1083established that he is a black African American.
10911 4 . It is undisputed that Respondent i s a public accommodation, which is
1106defined, in pertinent part, as: " facilities principally engaged in selling food for
1118consumption on the premises .. . " § 760.02(11), Fla. Stat . Further, it is
1132undisputed that Petitioner attempted to afford himself of the ful l benefits and
1145enjoyment of RespondentÔs restaurant and that he was removed from the
1156restaurant during his meal, thus satisfying the second and third prongs.
11671 5 . Turning to the fourth prong, there was no evidence that similarly
1181situated patrons outside of PetitionerÔs class were given preferential
1190treatment by Respondent. Valid comparators in a discrimination case must
1200be " similarly situated in all material respects. " Lewis v. City of Union City,
1213Ga . , 918 F. 3d 1213, 1218 (11th Cir. 2019). Petitioner did n ot identify any
1229valid comparators to illustrate his claim of disparate treatment. Although
1239Petitioner identified a Caucasian female patron , who was dining in the
1250restaurant during the incident at issue in this case, no evidence was
1262presented to show that s he was similarly situated to Petitioner.
12731 6 . Because Petitioner did not meet his burden of proving a prima facie
1288case of discrimination by a preponderance of the evidence, RespondentÔs
1298reasons for removing Petitioner from the restaurant, and whether those
1308reasons were pretexts, need not be discussed . See generally, Adams v.
1320Holland , 2019 WL 4451454, at *6 (M.D. Fla. Sept. 17, 2019)(noting where
1332plaintiff did not show a comparator outside his protective class , he could not
1345establish a prima facie case for d iscrimination and the court did not need to
1360address whether defendants had a non - discriminatory reason for his
1371treatment, or whether such a reason was pretextual).
1379R ECOMMENDATION
1381Based on the foregoing Findings of Fact and Conclusions of Law, it is
1394R ECOM MENDED that the Florida Commission on Human Relations enter a
1406final order dismissing the Petition for Relief.
1413D ONE A ND E NTERED this 1 1 th day of March , 2021 , in Tallahassee, Leon
1430County, Florida.
1432S
1433B RITTANY O. F INKBEINER
1438Administrative Law Judge
14411230 Apa lachee Parkway
1445Tallahassee, Florida 32399 - 3060
1450(850) 488 - 9675
1454www.doah.state.fl.us
1455Filed with the Clerk of the
1461Division of Administrative Hearings
1465this 1 1 th day of March , 2021 .
1474C OPIES F URNISHED :
1479Tammy S. Barton, Agency Clerk Barry Paige, Esquire
1487Florida Commission on Human Relations Law Office of Ogletree and Deakins
14984075 Esplanade Way , Room 110 111 Monument Circle , Suite 4600
1508Tallahassee, Florida 32399 - 7020 Indianapolis, Indiana 46204
1516Andrew Williams, Esquire J. Robert McCormack, Esquire
1523The Williams Law Group Ogletree, Deakins, Nash, Smoak
15316273 Sunset Drive , Suite D - 3 & Stewart, P.C.
1541Miami, Florida 33143 - 8815 100 Nor th Tampa Street , Suite 3600
1553Tampa, Florida 33602
1556Ina F. Young, Esquire
1560Ogletree, Deakins, Nash, Smoak Cheyanne Costilla, Gen eral Co unsel
1570& Stewart, P.C. Florida Commission on Human Relations
1578100 N orth Tampa Street , Suite 3600 4075 Esplanade Way , Room 110
1590Tampa, Florida 33602 Tallahassee, Florida 32399 - 7020
1598N OTICE OF R IGHT T O S UBMIT E XCEPTIONS
1609All parties have the right t o submit written exceptions within 15 days from
1623the date of this Recommended Order. Any exceptions to this Recommended
1634Order should be filed with the agency that will issue the Final Order in this
1649case.
- Date
- Proceedings
- PDF:
- Date: 06/23/2021
- Proceedings: Agency Final Order Dismissing Petition for Relief from an Unlawful Emplyment Practice filed.
- PDF:
- Date: 03/11/2021
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 03/10/2021
- Proceedings: Order Denying Respondent's Motion to Strike Petitioner's Proposed Recommended Order.
- PDF:
- Date: 03/09/2021
- Proceedings: Respondent's Motion to Strike Petitioner's Proposed Recommended Order filed.
- PDF:
- Date: 02/03/2021
- Proceedings: Order Denying Respondent's Motion To Deny or Dismiss Petition For Relief.
- PDF:
- Date: 01/26/2021
- Proceedings: Respondent's Motion to Deny or Dismiss Petition for Relief filed.
- Date: 10/13/2020
- Proceedings: CASE STATUS: Hearing Held.
- Date: 10/13/2020
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 10/13/2020
- Proceedings: Respondent's Response to Petitioner's Motion to Compel and for Sanctions, in Addition, and Alternatively Motion to Continue filed.
- PDF:
- Date: 10/07/2020
- Proceedings: Petitioner's Motion to Compel and for Sanctions, in Addition, and Alternatively Motion to Continue filed.
- Date: 10/07/2020
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 09/29/2020
- Proceedings: Order Granting Petitioner's Stipulation and Order to Reset Final Meet-and-Confer Date.
- PDF:
- Date: 08/25/2020
- Proceedings: Notice of Hearing by Zoom Conference (hearing set for October 13, 2020; 9:00 a.m.; Tallahassee).
- PDF:
- Date: 08/24/2020
- Proceedings: Joint Notice of Case Status and Stipulation for Final Hearing filed.
- PDF:
- Date: 08/20/2020
- Proceedings: Order Granting Continuance (parties to advise status by August 21, 2020).
Case Information
- Judge:
- BRITTANY O. FINKBEINER
- Date Filed:
- 05/29/2020
- Date Assignment:
- 05/29/2020
- Last Docket Entry:
- 06/23/2021
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Tammy S Barton, Agency Clerk
Address of Record -
J. Robert McCormack, Esquire
Address of Record -
Barry Paige, Esquire
Address of Record -
Andrew Williams, Esquire
Address of Record -
Ina F. Young, Esquire
Address of Record