20-002789 Lawrence Rose vs. Phcsa Status: Closed Recommended Order on Tuesday, January 26, 2021.

Summary: Petitioner failed to show that he was denied access to a public accommodation, public tennis courts, based on his gender.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L AWRENCE R OSE ,

Petitioner ,

vs. Case No. 20 - 2789

P HCSA ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge He tal Desai, of the Division of Administrative

Hearings (D OAH ), conducted the final hearing in this case by Zoom video

conference on October 15, 2020.

A PPEARANCES

For Petitioner: Lawrence Rose, pro se

4787 Klosterman Oaks Bo ulevard

Palm Harbor, Florida 34683

For Respondent: Andrew J. Salzman, Esquire

Unice Salzman, P.A.

1815 Little Road

Trinity, Fl orida 34655

S TATEMENT OF T HE I SSUE

Whether Respondent, PHCSA , 1 discriminated against Petitioner ,

Lawrence Rose, based on his gender in violation of section 760.08, Florida

Statutes (2019) , 2 when it restricted his access to its tennis courts.

1 Respondent, PHCSA, is the Palm Harbor Community Services Agency.

2 All references to the Florida Statutes and administrative rules are to the 2019 versions

unless stated otherwise.

P RELIMINAR Y S TATEMENT

On January 22, 2019, Petitioner filed a Technical Assistance

Questionnaire for Public Accommodation Complaints (TAQ) with the Florida

Commission on Human Relations (Commission or FCHR ). Petitioner

described the following facts in the TAQ:

I was discriminated by an employee named Ed

Hooker and later kicked out for good by Erica

Lynford. The harassment started in 2015 when

they would lock us out of the tennis courts at

Putnam Park in Palm Harbor. In June 2018 we

were kicked out for 10 weeks becaus e they said

they run a summer camp from 9am to 2pm. They

allowed a private person (Johnny Angel) to use the

courts from 4 - 7 pm all summer as well. Myself and

another person complained about not being able to

use the tennis courts and asked for the financia ls

and when the courts would be open for public use.

È Erica would not provide [the] all the financials

or when the courts would be available for the

public. She later claimed we swore at Ed Hooker

and called the sheriff's office to cite us for

trespassing . This happened the day after I posted a

negative review on facebook and google on

September 10, 2018. They have harassed us since

2014. We never swore at anyone and have been

harassed and I believe it is due to my age as I am a

senior citizen. (emphasis added).

In the TAQ section asking for the basis of the public accommodation

discrimination claim, Petitioner only marked one box labeled "Other" and

wrote in " a ge."

On March 5, 2019, the Commission issued a Notice of Right to Amend

indicating it could not investigate Petitioner's complaint because the place to

which Petitioner complained he was denied access was not a public

accommodation. It is unclear whether Petitioner amended his complaint with

the Commission , but no amended complaint was transmitte d by the

Commission to DOAH.

Regardless, on May 20, 2020, the Commission issued a "Determination:

No Reasonable Cause" addressing the age discrimination claim in the TAQ

and a previously unmentioned claim of sex discrimination. 3 In that document

the Commi ssion found :

Complainant filed a complaint of discrimination

alleging that Respondent committed unlawful

discrimination on the bases of age and sex in

violation of the Florida Civil Rights Act of 1992.

The [Commission] has completed its investigation

of t his matter. The Office of General Counsel has

completed its review of the investigation and finds

it is unlikely that unlawful discrimination occurred

in this matter. (emphasis added). [ 4 ]

On June 16, 2020, Petitioner filed a Petition for Relief. The Peti tion does

not mention either age or sex as a basis for discrimination , but instead

alleges general harassment. The Petition also adds a claim for violation of

sections 90 - 60 and 10 - 44(u) of the Pinellas County Code of Ordinances

(Pinellas County Code).

O n June 17, 2020, the Commission referred the Petition to DOAH to

conduct a hearing, where it was assigned to the undersigned and set for

hearing.

3 Respondent erroneo usly states it filed its response to the Commission of Ethics. See Resp.

PRO, p.3, ¶5 .

4 Respondent assumes that Petitioner's complaint included both age and sex discrimination.

See Resp. PRO, p.3, ¶2.

On August 19, 2020, PHCSA filed a Motion to Dismiss the Petition for

Relief on the following grounds : (1) its tennis courts were not "public

accommodations" as defined in the Florida Civil Rights Act (FCRA); and

(2) the allegations of violations of the Pinellas County Code were improper.

Respondent's Motion to Dismiss was heard at the pre - hearing conference held

on August 28, 2020. On August 31, 2020, the undersigned issued an Order

denying the motion to dismiss without prejudice as to the FCRA public

accommodation claim because there were disputed issues of fact. The Order

struck the allegation of violations of the Pinellas County Code from the

Petition for Relief.

On October 12, 2020, three days before the final hearing, Respondent filed

a second Motion to Dismiss ( second Motion) on the grounds there could be no

public accommodation discrimination claim based o n age because section

760.08 does not include "age" as a protected class. Argument on the second

Motion was heard at the final hearing. T he second Motion was granted as to

the age claim (for reasons explained in the Conclusions of Law below), and

the testi mony at the hearing was limited to the claims of harassment and

discrimination based on sex .

After granting a continuance, the final hearing was held on October 15,

2020. Petitioner testified on his own behalf and presented the testimony of

Edward Hooker and Curt Baker. Petitioner's Exhibits P1, P4, P9 through

P17, P21 through P29, P37, P40 through P44, and P46 through P49 were

admitted in to evidence . Respondent presented the testimony of Er ica

Lynford. Respondent's Exhibits R1 through R8 were admitted in t o evidence.

The Transcript of the hearing was filed on December 3, 2020. The parties

requested an extension to file proposed recommended orders (PROs), which

was granted. Both parties timely filed their PROs, and both were considered

in the preparation of this Order.

F INDINGS OF F ACT

1 . Petitioner is a male senior citizen who has used PHCSA 's tennis courts

in the past and wishes to continue to use those tennis courts.

2 . PHCSA is a taxing district created by Pinellas County to oversee

recreational areas a nd libraries, including Putnam Park.

3 . Putnam Park , which is located in Palm Harbor, Florida , has two tennis

courts that can be reserved for a fee. If the courts are not reserved, they are

open to the public on a first - come basis for free.

4 . There are no policies or procedures that restrict the use of a PHCSA

facility, including the tennis courts, based on a person's sex.

5 . I f the courts are wet due to weather or from adjacent irrigation

sprinklers, they are closed until the surface is dry and it is s afe to play . When

closed for safety reasons, t he courts are unavailable to everyone, male and

female.

6 . Additionally, PHCSA staff edges and mows the area around the tennis

courts and blows any debris off the courts. This maintenance generally occurs

on M ondays.

7 . During the summer, PHCSA operates a tennis camp for youth. The

camp runs Monday through Friday, from 9:00 a.m. to 2:00 p.m., for eight to

ten weeks. B oth tennis courts are unavailable for public use d uring the time

the camp is in session , but a re available for rental or public use after camp

hours .

8 . In June 2018, Petitioner complained to PHCSA that the courts were not

available during the time of the summer camp and that the tennis courts

were being used to generate revenue. PHCSA informed Pet itioner he could

use the courts on the days of the summer camp any time after 2:00 p.m. , and

that revenue from rentals w as used to maintain PHCSA facilities.

9 . Petitioner acknowledged that the courts were available after 2:00 p.m.

but complained that by t hen it was too hot to play. He also conceded that no

one, regardless of gender, was allowed to use the courts (other than the camp

attendees) during the tennis camp's hours of operation.

10 . Johnny Angel, a male tennis instructor, has a contract with PHCSA to

rent one tennis court during certain time blocks for private tennis lessons.

During these lessons , Mr. Angel only utilizes one tennis court, leaving the

other court available for rental or public use.

11 . Petitioner complained that he did not like to play on the available

court during Mr. Angel's lessons because there is no barrier to stop stray

balls that inevitably come o nto the available court from Mr. Angel's students.

12 . Petitioner also complained to PHCSA about delays in unlocking

Putnam Park o n certain occasions, preventing him from using the tennis

court. On these occasions, no one was able to use the tennis courts, male or

female.

13 . Edward Hooker, a crew leader for the PHCSA , testified that he ha s

had multiple encounters with Petitioner si nce 2017. Mr. Hooker described

Petitioner as "very rude," "boisterous," and "aggressive" during these

encounters. In one incident , Petitioner called Mr. Hooker " a liar " and claimed

staff did not blow o f f the courts.

14. The most recent incident between Mr. Hooker and Petitioner occurred

on September 10, 2018. On this date, Petitioner arrived at Putnam Park but

was unable to use the courts because the gate w as locked; he had to wait 40

minutes.

15. Once open and shortly after Petitioner began playing tennis ,

Mr. Hooker began mowing the area around the tennis courts. Petitioner

admits he asked Mr. Hooker to blow off the courts , but denies yelling or using

profanity.

16 . Mr. Hooker testified that he informed Petitioner that the courts were

closed because they were wet and that the courts would be blown off after t he

mowing was finished. Mr. Hooker claims that a t some point during this

encounter Petitioner yelled at him and used profanity. Mr. Hooker's version

of the incident is more credible than Petitioner's v ersion .

17 . Regardless, Mr. Hooker reported the incident to his supervisor, Erica

Lynford, the Director of PHCSA Parks and Recreation. Ms. Ly n ford testified

that she had previously received complaints from three different PHCSA staff

members of similar in cidents with Petitioner .

18. Ms. Lynford investigated Mr. Hooker's September 10 complaint by

ask ing another staff member, Jake Pullen, for his account of the incident. She

also restricted Mr. Hooker and Mr. Pullen from working at Putnam Park.

Based on her investigation, Ms. Lynford determined that Petitioner used a

"posturing nature and loud voice" toward Mr. Hooker and other PHCSA staff .

She decided P etitioner 's behavior warranted a trespass warning.

1 9 . O n September 11, 2018, Petitioner returned to the tennis courts with

Curt Baker, a male senior citizen. Ms. Lynford contacted the Pinellas County

Sheriff's Office (PCSO) to issue the trespass warning. Once the PCSO

arrived , Ms. Lynford told Petitioner and Mr. Baker they were no longer

allowed on the Putna m Park tennis courts. It was explained to Petitioner and

Mr. Baker that if t he y returned to the tennis courts t he y would be subject to

arrest.

20 . Subsequently, Mr. Baker requested that t he trespass warning against

him be lifted . PHCSA granted his reques t and Mr. Baker is now allowed to

play on the tennis courts.

2 1 . Petitioner presented no evidence that the trespass warning was based

on his gender, or that PHCSA treated women in a preferential manner.

C ONCLUSIONS OF L AW

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

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

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

2 3 . Petitioner brings this action under section 760.08, the public

accommodation provision of the FCRA . He alleges that PHCSA discriminated

against him on account of his age and gender when it barred him from the

PHCSA tennis courts. As an initial matter, h owever, Petitioner cannot bring

a claim of public accommodation discrimination based on his age. The FCRA

prohibits discrimination in places of public accommodation and provides:

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

di scrimination or segregation on the ground of race,

color, national origin, sex, pregnancy, handicap,

familial status, or religion.

§ 760.08, Fla. Stat.

24 . The public accommodation provision of the FCRA does not mention

"age" or explicitly protect the eld erly. Without statutory authority Petitioner

can only proceed on his claim of public accommodation discrimination based

on sex. See § 120.57(1)(e)1., Fla. Stat. (" An agency or an administrative law

judge may not base agency action that determines the subst antial interests of

a party on [an interpretation of] an unadopted rule or a rule that is an invalid

exercise of delegated legislative authority. "). 5

25 . The FCRA is modeled after Title VII of the Civil Rights Act of 1964

(Title VII) and the American s with Disabilities Act (ADA). Consequently,

interpretation of federal discrimination law is instructive and persuasive in

analyzing claims under the FCRA. See , e.g. , Valenzuela v. GlobeGround N.

Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); Dornbach v. Holley , 854 So.

5 Part of Petitioner's confusion regarding his age discrimination claim may have been

fostered by the Commission's forms and actions. For example, the TAQ form (which is

specifically for " Public Accommodation Complaints ") mentions age in its acknowledgment

section : "I also understand that the FCHR can only accept charges of discrimination based on

race, religion, sex, pregnancy, national origin, disability, age, genetic information, or

retaliation for opposing discrimination ." Additionally, the Notice of Determination in this

case states that FCHR investig ated Petitioner's age discrimination claim even though the

statute clearly does not make age a "protected class" under FCRA's public accommodation

provision.

2d 211, 213 (Fla. 2d DCA 2002); Bhogaita v. Altamonte Heights Condo. Ass'n,

Inc. , 765 F.3d 1277, 1285 (11th Cir. 2014).

26 . Regarding his sex discrimination claim, Petitioner must prove the

elements of public accommodation discrimination by a pre ponderance of the

evidence. § 120.57(1)(j), Fla. Stat.; See Young v. Dep't of Cmty. Aff. , 625 So. 2d

831 (Fla. 1993).

27 . Claims of discrimination in public accommodations under the FCRA

relying on circumstantial evidence apply the same prima facie standar ds and

burdens of proof as employment discrimination claims under federal law. See

LaRoche v. Denny's , Inc. , 62 F. Supp. 2d 1366, 1368, 1370 (S.D. Fla. 1999)

(finding public accommodation claims under section 760.08 ha ve " the same

prima facie standards and burdens of proof as do employment discrimination

claims under Title VII. " (citations omitted)); see also Solomon v. Waffle House,

Inc. , 365 F. Supp. 2d 1312, 1331 (N.D.Ga. 2004).

28 . In this case, Petitioner must first prove a prima facie case of

discrimin ation with circumstantial evidence that supports a fair inference of

unlawful discrimination. If he does so, PHCSA may explain that it prevented

Petitioner from using the tennis court for legitimate nondiscriminatory

reasons. If PHCSA satisfies this burden , Petitioner may show that PHCSA's

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

29 . To prove his prima facie case, Petitioner must establish he: (1) is a

member of a protected class; (2) attempted to afford himself the full bene fits

and enjoyment of a public accommodation; (3) was denied the full benefit or

enjoyment of a public accommodation; and (4) such services were available to

similarly situated persons outside his protected class who received full

benefits or who were trea ted better. Laroche , 62 F. Supp. 2d at 1382; see also

Solomon , 365 F. Supp. at 1331.

30 . Petitioner has satisfied the first element of his sex discrimination

claim , but PHCSA argues he cannot satisfy the second and third element s

because the tennis courts are not a "public accommodation."

31 . Under the FCRA , a " p ublic a ccommodation" i s defined in relevant part

as:

ÑPublic accommodationsÒ means places of public

accommodation, lodgings, facilities principally

engaged in selling food for consumption on the

pr emises, gasoline stations, places 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:

* * *

(c) Any motion p icture theater, theater, concert

hall, sports arena, stadium, or other place of

exhibition or entertainment.

§ 760.02(11), Fla. Stat.

32 . Sports venues , such as tennis courts , have qualified as " public

accommodations " under the federal equivalents to the FCRA. See People of

State of N.Y. by Abrams v. Ocean Club, Inc., 602 F. Supp. 489, 496 (E.D.N.Y.

1984) (finding tennis courts controlled by private club but offered for use to

the general public were subject to federal and New York equivalent of FCRA);

Mar tin v. PGA Tour, Inc ., 204 F.3d 994 (9th Cir. 1999) (golf course is a place

of public accommodation under federal and Oregon equivalent of FCRA).

33 . The Florida Attorney General has opined that a local softball field in a

city park similar to Putnam Park is a "public accommodation" for the

purposes of FCRA :

[T]he provisions of the Florida Civil Rights Act

would prohibit the Village of Palmetto Bay from

making a municipal softball field exclusively

available to female athletes as any such action

would cons titute discrimination on the basis of sex

or gender in the area of public accommodation.

However, this conclusion should not be read to

suggest that activities like girls' softball games

cannot be scheduled exclusively at a particular

athletic field so lon g as opportunities exist for boys'

teams to also schedule use of the park.

In Re Eve A. Boutsis , Fla. Att'y Gen. Op. 2008 - 58 (2008).

34 . W hether a municipal park or sports field constitutes a " public

accommodation " under FCRA involves "factual determina tions based on the

uses to which this property is put, such as whether the park is used for

entertainment or exhibition, whether the park includes a sports arena or

stadium, whether food may be served on park grounds, etc." Id.

35 . Based on the facts of th is case, the undersigned finds the tennis courts

were a public accommodation under the FCRA definition. Specifically,

although there was no evidence there was food on park grounds, Putnam

Park and the tennis courts were utilized for entertainment and were

available for rent by members of the public.

36 . Turning to the last element, there was absolutely no evidence women

were given preferential treatment by PH CSA in the use of the tennis courts.

A ll members of the public , regardless of sex, were excluded from using the

courts during the summer tennis camp or when the courts were locked .

Similarly, all members of the public , regardless of sex, could use the second

available court during Mr. Angel's private lessons. Moreover, the evidence

established that M r. Baker (who is in the same protected class as Petitioner)

w as allowed to use the courts. Petitioner show not shown that similarly

situated persons outside his protected class were allowed to use the tennis

courts when he was not.

37 . Because Petitioner did not meet his burden of proving a prima facie

case of sex discrimination by a preponderance of the evidence, PHCSA's

reasons for restricting Petitioner's use of the tennis courts during the

summer tennis camp or issuing him a trespass warning, and wheth er those

reasons were pretexts , need not be discussed. See generally, Adams v.

Holland , 2019 WL 4451454, at *6 (M.D. Fla. Sept. 17, 2019) (noting where

plaintiff did not show a comparator outside his protective class he could not

establish a prima facie ca se for discrimination and the court did not need to

address whether defendants had a non - discriminatory reason for his

treatment, or whether such a reason was pretextual).

R ECOMMENDATION

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

Recommended that t he Florida Commission on Human Relations enter a

final order d ismissin g Lawrence Rose's Petition for Relief.

D ONE A ND E NTERED this 26th day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

Administrative Law Jud ge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Lawrence Rose

Florida Commission on Human 4787 Klosterman Oaks Boulevard

Relations Palm Harbor, Florida 34683

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020 Cheyanne Costilla, General Counsel

Florida Commission on Human

Andrew J. Salzman, Esquire Relations

Unice Salzman, P.A. 4075 Esplanade Way, Roo m 110

1815 Little Road Tallahassee, Florida 32399

Trinity, Florida 34655

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 ag ency that will issue the Final Order in this

case.