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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-036

FCHR Order No. 09-036

Date of Release: 04/13/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

RICKY KRELL

 

Petitioner

 

v.

FCHR Case No. 2008-01178

   

DUSTIN’S BARBEQUE

DOAH Case No. 08-2668

Respondent

FCHR Order No. 09-036

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL PUBLIC ACCOMMODATIONS PRACTICE

Preliminary Matters

Petitioner Ricky Krell filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 509.092 and 760.01 - 760.11, Florida Statutes (2005), alleging that Respondent Dustin’s Barbeque committed an unlawful public accommodations practice on the basis of Petitioner’s disability / handicap by having a “no trespass” order issued against Petitioner because he had a service dog.

The allegations set forth in the complaint were investigated, and, on May 23, 2008, the Executive Director issued his determination finding that there was no reasonable cause to believe that an unlawful public accommodations practice had occurred.

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 Viera, Florida, on August 13, 2008, before Administrative Law Judge Jeff B. Clark.

Judge Clark issued a Recommended Order of dismissal, dated November 25, 2008.

The Commission scheduled a deliberation hearing on the matter for February 12, 2009.

At Respondent’s request, and with no indication of objection from Petitioner, the deliberation hearing was continued by the Commission in an order dated January 28, 2009.

Pursuant to notice, public deliberations were held on April 9, 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.

FCHR Order No. 09-036

Page 2

Findings of Fact

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence.

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 adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Petitioner filed exceptions to the Recommended Order in a one-page exceptions document received by the Commission on December 4, 2008.

With regard to exceptions to Recommended Orders, the Administrative Procedure Act states, “The final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.” Section 120.57(1)(k), Florida Statutes (2007); see, also, Bartolone v. Best Western Hotels, FCHR Order No. 07-045 (August 24, 2007).

A review of Petitioner’s exceptions document suggests that it does not comply with this statutory provision.

Nevertheless, it can be said that the document generally excepts to the Administrative Law Judge’s ultimate finding that no unlawful public accommodations practice occurred in this matter.

The Commission has stated, “It is well settled that it is the Administrative Law Judge’s function ‘to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge’s role to decide between them.’ Beckton v. Department of Children and Family Services, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. 2168, at 2171 (FCHR 1986).” Barr v. Columbia Ocala Regional Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005).

Petitioner’s exceptions are rejected.

FCHR Order No. 09-036

Page 3

Dismissal

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

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 13th day of April , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Elena Flom; and

Commissioner Billy Whitefox Stall

Filed this 13th day of April , 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:

Ricky Krell

1889 Cedarwood Drive

Melbourne, FL 32935

Dustin’s Barbeque

c/o Katherine Hurst Miller, Esq.

c/o Kelly V. Parsons, Esq.

Cobb Cole

Post Office Box 2491

Daytona Beach, FL 32115-2491

FCHR Order No. 09-036

Page 4

Jeff B. Clark, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 13th day of April , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations