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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-057

FCHR Order No. 09-057

Date of Release: 07/01/2009








FCHR Case No. 2008-02341



DOAH Case No. 08-5858


FCHR Order No. 09-057




Preliminary Matters

Petitioner Victoria Fabiano 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 Target Corporation committed an unlawful public accommodations practice on the basis of Petitioner’s disability by harassing Petitioner, denying Petitioner reasonable accommodations, and by denying Petitioner access to goods / services.

The allegations set forth in the complaint were investigated, and, on October 30, 2008, the Executive Director issued his amended 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 Tampa, Florida, on March 10, 2009, before Administrative Law Judge R. Bruce McKibben.

Judge McKibben issued a Recommended Order of dismissal, dated April 6, 2009.

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order.

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.

FCHR Order No. 09-057

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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 concluded, “Though not raised by Target as a defense in this matter, it should be noted that the Store is not within the definition of a public accommodation…Based upon the doctrine of expression unius est exclusion alterius, the fact that retail stores, such as the one at issue in the proceeding are not specifically listed in Subsection 760.02(11), Florida Statutes, reflects a legislative intent that that statute does not encompass such establishments.” Recommended Order,

¶ 31 and ¶ 32. We decline to accept this conclusion of law since it is not necessarily dispositive of the case given the Administrative Law Judge’s recommendation on the merits of the case relating to the ultimate issue of whether discrimination occurred. Accord, Benedict v. Wal-Mart Stores East, FCHR Order No. 09-011 (January 27, 2009), in which, since the Administrative Law Judge determined the case on the merits, a Commission panel declined to accept or reject the conclusion of law that because the food from Respondent’s deli was not consumed on the premises, the retail establishment in question was not a public accommodation, since other factors could exist to make the Respondent a public accommodation; and see, generally, Morales v. Winn Dixie Stores, Inc., FCHR Order No. 09-024 (March 16, 2009) in which a Commission panel concluded that the finding that the grocery store in question was not a public accommodation was limited to the case before it, noting that circumstances could exist in which a grocery store could be found to be a public accommodation. See also, generally, Roche v. J.C. Penney Company, Inc., FCHR Order No. 06-078 (September 18, 2006), in which a Commission panel found it unnecessary to either accept or reject conclusions of law suggesting that the complaint of discrimination was not timely filed, when the Administrative Law Judge decided the case on other grounds, as well; and see, also, generally, Cox v. University of Florida, FCHR Order No. 04-145 (November 4, 2004), in which a Commission panel declined to either accept or reject a conclusion of law which was not dispositive of the case given the decision on the merits, namely, that the Petition for Relief was not timely filed.

We note that the definition of “public accommodations” includes “[a]ny restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located in a retail establishment…” and…“any establishment…within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment.” Sections 760.02(11)(b) and (d), Florida Statutes (2007). Consequently, in our view, if a food establishment as described in the statute, above, is located within a “retail store,” the “retail store” would be a “public accommodation” by definition, regardless that the statute does not specifically say that “retail stores” are public accommodations.

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

FCHR Order No. 09-057

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Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a document received by the Commission on April 16, 2009.

There is no indication on the document that it was provided to Respondent as is required by Fla. Admin. Code R. 28-106.104(4) and Fla. Admin. Code R. 28-106.110. However, the Commission published the document to the Respondent, and placed the document in the record of this case, through the issuance of a Notice of Ex Parte Communication, mailed to the parties on June 5, 2009.

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 conclusion that Respondent was not a public accommodation and to facts found, facts not found, and inferences drawn from the evidence presented.

The Administrative Law Judge’s conclusion that Respondent is not a public accommodation is not dispositive of the case, given the Administrative Law Judge’s finding that no discrimination occurred even if Respondent were considered a public accommodation. Recommended Order, ¶ 28, ¶ 29, and ¶ 30.

With regard to Petitioner’s exceptions to facts found, facts not found, and inferences drawn from the evidence presented, 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. 09-057

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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 1st day of July , 2009.


Commissioner Donna Elam, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Mario M. Valle

Filed this 1st day of July , 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:

Victoria Fabiano

14612 Knoll Ridge Drive

Tampa, FL 33625

Target Corporation

c/o Sherilee J. Williams, Esq.

Hill, Ward & Henderson

101 East Kennedy Boulevard, Suite 3700

Post Office Box 2231

Tampa, FL 33601

FCHR Order No. 09-057

Page 5

R. Bruce McKibben, 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 1st day of July , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations