Skip to Main Content. Please Contact Us if there is anything we can do to improve the Accessibility of this site.
  • Search:

Right menu

Left menu


Home / Complaints / Final Orders / Final Orders 2012 / FCHR Order No. 12-019

FCHR Order No. 12-019

Date of Release: 04/23/2012

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

TRACIE INMAN

 

EEOC Case No. NONE

Petitioner

 

FCHR Case No. 2011-01219

   

DOAH Case No. 11-5602

v.

   

JIAN DENG BAO, d/b/a CHINA GARDENS RESTAURANT

 

FCHR Order No. 12-019

Respondent

   

INTERLOCUTORY ORDER AWARDING AFFIRMATIVE

RELIEF FROM AN UNLAWFUL PUBLIC ACCOMMODATIONS PRACTICE

AND REMANDING CASE TO ADMINISTRATIVE LAW JUDGE

FOR ISSUANCE OF RECOMMENDED ORDER REGARDING

AMOUNTS OF ATTORNEY’S FEES AND COSTS OWED PETITIONER

Preliminary Matters

Petitioner Tracie Inman filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 509.092 and 760.01 - 760.11, Florida Statutes (2010), alleging that Respondent Jian Deng Bao, d/b/a China Gardens Restaurant, committed an unlawful public accommodations practice on the basis of Petitioner’s handicap by refusing Petitioner access to the restaurant for dine-in service because Petitioner was accompanied by her service animal.

The allegations set forth in the complaint were investigated, and, on October 6, 2011, the Executive Director issued his determination finding that there was 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 Jacksonville, Florida, on January 10, 2012, before Administrative Law Judge Lawrence P. Stevenson.

Judge Stevenson issued a Recommended Order, dated February 16, 2012, recommending that the Commission find that an unlawful public accommodations practice occurred and recommending affirmative relief.

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

FCHR Order No. 12-019

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, Gantz, et al. v. Zion’s Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. 11-048 (June 6, 2011), Mack v. Agency for Persons with Disabilities, FCHR Order No. 11-026 (March

17, 2011), Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007 (January 14, 2008), 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 adopt the Administrative Law Judge’s conclusions of law.

Respondent failed to appear at the final hearing.

We note that the record before us reflects six different addresses for Respondent, as follows:

Jian Deng Bao

China Gardens Restaurant

4765 Hodges Boulevard

Jacksonville, FL 32224

Jian Deng Bao

China Gardens Restaurant

13740 Beach Boulevard, Suite 112

Jacksonville, FL 32224

Jian Deng Bao

12250 Atlantic Boulevard, Apt. # 2202

Jacksonville, FL 32225-5807

Jian Deng Bao

12250 Atlantic Boulevard, Apt. # 2201

Jacksonville, FL 32225

FCHR Order No. 12-019

Page 3

Jian Deng Bao

China Gardens Restaurant

10550 Old St. Augustine Road

Jacksonville, FL 32257

Jian Deng Bao

China Gardens Restaurant

1573 Par Street, NE

Palm Bay, FL 32905

The record reflects that the Initial Order (11-1-11), Notice of Hearing (11-22-11), Order Granting Leave to Amend (12-19-11), Order to Show Cause (1-18-12) and Order Closing Record (1-30-12), were all sent to Respondent at the “Beach Boulevard” address, and all were returned as undeliverable. Consequently, there may be an issue as to whether Respondent actually received notice of the final hearing. The Recommended Order (2-16-12) was sent to the “Hodges Boulevard” address.

Nevertheless, in the absence of a transcript of the proceeding before the Administrative Law Judge we have no way of knowing the extent to which this issue may have been resolved at the final hearing, perhaps leading to a conclusion that appropriate notice had been given to Respondent but that the Recommended Order should be sent to Respondent at the “Hodges Avenue” address, recognizing that other post-hearing orders were sent to Respondent at the “Beach Boulevard” address, but were returned as undeliverable.

Exceptions

Neither of the parties filed exceptions to the Administrative Law Judge’s Recommended Order.

Affirmative Relief and Remand

Through our adoption of the Administrative Law Judge’s findings of fact and conclusions of law, as set out above, we find that unlawful discrimination occurred in this matter in the manner found by the Administrative Law Judge and have adopted the Administrative Law Judge’s recommendations for the remedy of the discrimination.

Respondent Jian Deng Bao, d/b/a China Gardens Restaurant, is hereby ORDERED to cease and desist from discriminating further in the manner it has been found to have unlawfully discriminated against Petitioner.

We note that the Administrative Law Judge found that Petitioner requested attorney’s fees, but concluded that an Administrative Law Judge does not have authority to make such an award in the first instance. Recommended Order, paragraph 22. We

FCHR Order No. 12-019

Page 4

conclude, as is our discretion, that Petitioner is entitled to attorney’s fees and costs in this matter, and REMAND the matter to the Administrative Law Judge for the issuance of a

Recommended Order to the Commission as to the amount of attorney’s fees and costs owed Petitioner by Respondent Jian Deng Bao, d/b/a China Gardens Restaurant.

DONE AND ORDERED this 23rd day of April , 2012.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Michael Keller

Filed this 23rd day of April , 2012,

in Tallahassee, Florida.

___________/s/_______________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

.

Copies furnished to:

Tracie Inman

c/o Sharon Caserta, Esq.

Jacksonville Area Legal Aid, Inc.

Deaf / Hard of Hearing Legal Advocacy Program

126 West Adams Street

Jacksonville, FL 32202

Jian Deng Bao

China Gardens Restaurant

4765 Hodges Boulevard

Jacksonville, FL 32224

Jian Deng Bao

China Gardens Restaurant

13740 Beach Boulevard, Suite 112

Jacksonville, FL 32224

FCHR Order No. 12-019

Page 5

Jian Deng Bao

12250 Atlantic Boulevard, Apt. # 2202

Jacksonville, FL 32225-5807

Jian Deng Bao

12250 Atlantic Boulevard, Apt. # 2201

Jacksonville, FL 32225

Jian Deng Bao

China Gardens Restaurant

10550 Old St. Augustine Road

Jacksonville, FL 32257

Jian Deng Bao

China Gardens Restaurant

1573 Par Street, NE

Palm Bay, FL 32905

Lawrence P. Stevenson, 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 23rd day of April , 2012.

By: ____________/s/_____________

Clerk of the Commission

Florida Commission on Human Relations