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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-024

FCHR Order No. 09-024

Date of Release: 03/17/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

ELIAS MORALES

 

Petitioner

 

v.

FCHR Case No. 2008-02410

   

WINN DIXIE STORES, INC.

DOAH Case No. 08-5166

Respondent

FCHR Order No. 09-024

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL PUBLIC ACCOMMODATIONS PRACTICE

Preliminary Matters

Petitioner Elias Morales filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 509.092 and 760.01 - 760.11, Florida Statutes (2007), alleging that Respondent Winn Dixie Stores, Inc., committed an unlawful public accommodations practice on the bases of Petitioner’s National Origin (Hispanic) and color (dark skinned) in the manner in which Petitioner was treated as he attempted to pay for groceries at a Winn Dixie grocery store.

The allegations set forth in the complaint were investigated, and, on September 25, 2008, the Executive Director issued his “Determination: No Jurisdiction,” concluding that the Commission did not have jurisdiction of the matter because “Respondent is not a public accommodation” within the meaning of the Florida Civil Rights Act of 1992.

Petitioner filed a Petition for Relief and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held in Tampa, Florida, on December 17, 2008, before Administrative Law Judge Daniel Manry.

Judge Manry issued a Recommended Order of Dismissal, dated December 24, 2008, concluding that the Division of Administrative Hearings and the Commission did not have jurisdiction of the matter because Respondent was not a public accommodation within the meaning of the Florida Civil Rights Act of 1992.

Pursuant to notice, public deliberations were held on March 12, 2009, by means of Communications Media Technology (namely, telephone) before this panel of Commissioners. The public access point for these telephonic deliberations was the Office of the Florida Commission on Human Relations, 2009 Apalachee Parkway, Suite 200, Tallahassee, Florida, 32301. At these deliberations, the Commission panel determined the action to be taken on the Recommended Order of Dismissal.

FCHR Order No. 09-024

Page 2

Findings of Fact

A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the

Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human

Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Beach-Gutierrez v. Bay Medical Center, FCHR Order No. 05-011 (January 19, 2005), and Waaser v. Streit’s Motorsports, FCHR Order No. 04-157 (November 30, 2004).

We adopt the Administrative Law Judge’s findings of fact.

Conclusions of Law

We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter.

We note that the Administrative Law Judge’s conclusion that “a Winn Dixie grocery store is not a public accommodation” is limited to the facts developed in this case, and that the circumstances could exist in which a grocery store could be found to be a “public accommodation.”

With this comment, we adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order of Dismissal in a document entitled, “Petitioner’s Exceptions to Finding of Fact and Conclusion of Law Contained in Recommended Order Dated – 12/24/2008,” received by the Commission on December 29, 2008.

The document contains two numbered exceptions.

The first excepts to the Administrative Law Judge’s conclusion that a Winn Dixie grocery store is not a public accommodation, suggesting that this is an interpretation that is inconsistent with federal law.

In this matter, it is the Administrative Law Judge’s function to interpret the Florida statute, and, therefore, this exception is rejected.

The second seems to except to procedural issues that the Commission cannot evaluate in the absence of a transcript of the proceeding before the Administrative Law Judge.

This exception is rejected.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

FCHR Order No. 09-024

Page 3

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right

to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 16th day of March , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Patty Ball Thomas

Filed this 16th day of March , 2009,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Elias Morales

Post Office Box 47253

Tampa, FL 33646

Winn Dixie Stores, Inc.

c/o Latasha Garrison-Fullwood, Esq.

c/o Bradley R. Johnson, Esq.

Taylor, Day, Currie, Boyd & Johnson

50 North Laura Street, Suite 3500

Jacksonville, FL 32202

Daniel Manry, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 09-024

Page 4

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 16th day of March , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations