20-002501 Ayinde Crespo vs. Steak-N-Shake
 Status: Closed
Recommended Order on Thursday, March 11, 2021.


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Summary: Petitioner did not prove unlawful discrimination by a preponderance of the evidence.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/23/2021
Proceedings: Agency Final Order
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
PDF:
Date: 03/11/2021
Proceedings: Recommended Order (hearing held October 13, 2020). CASE CLOSED.
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: 03/05/2021
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 03/04/2021
Proceedings: (Proposed) Recommended Order filed.
PDF:
Date: 02/18/2021
Proceedings: Order Granting Extension of Time.
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.
PDF:
Date: 10/13/2020
Proceedings: Notice of Ex Parte Communication.
Date: 10/13/2020
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 10/13/2020
Proceedings: Responses to Plaintiff's Amended Requests for Production filed.
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: 10/12/2020
Proceedings: Respondent's Response to Petitioner's Motion to Strike filed.
PDF:
Date: 10/09/2020
Proceedings: Petitioner's Witness and Exhibit List filed.
PDF:
Date: 10/09/2020
Proceedings: Petitioner's Motion to Strike filed.
PDF:
Date: 10/09/2020
Proceedings: Pre-Hearing Statement filed.
PDF:
Date: 10/09/2020
Proceedings: Court Reporter Request 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: 10/06/2020
Proceedings: Respondent's Hearing Exhibits filed.
PDF:
Date: 10/06/2020
Proceedings: Respondent's Exhibit List filed.
PDF:
Date: 10/06/2020
Proceedings: Respondent's Pre-Hearing Statement filed.
PDF:
Date: 09/29/2020
Proceedings: Order Granting Petitioner's Stipulation and Order to Reset Final Meet-and-Confer Date.
PDF:
Date: 09/28/2020
Proceedings: Stipulation and Order to Reset Final Meet-and-Confer Date filed.
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).
PDF:
Date: 08/07/2020
Proceedings: Motion to Continue the Final Hearing filed.
PDF:
Date: 08/05/2020
Proceedings: Respondent's Motion to Allow Remote Appearance filed.
PDF:
Date: 07/21/2020
Proceedings: Notice of Appearance (Ina Young) filed.
PDF:
Date: 07/21/2020
Proceedings: Notice of Appearance (J. McCormack) filed.
PDF:
Date: 07/13/2020
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 06/25/2020
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 06/22/2020
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/22/2020
Proceedings: Notice of Hearing by Video Teleconference (hearing set for August 21, 2020; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 06/19/2020
Proceedings: Response to Initial Order filed.
PDF:
Date: 06/11/2020
Proceedings: Order Requiring Response to Initial Order.
PDF:
Date: 06/01/2020
Proceedings: Initial Order.
PDF:
Date: 05/29/2020
Proceedings: Public Accommodation Complaint of Discrimination filed.
PDF:
Date: 05/29/2020
Proceedings: Notice of Determination: No Cause filed.
PDF:
Date: 05/29/2020
Proceedings: Determination: No Cause filed.
PDF:
Date: 05/29/2020
Proceedings: Petition for Relief filed.
PDF:
Date: 05/29/2020
Proceedings: Transmittal of Petition filed by the Agency.

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

Related Florida Statute(s) (4):