Filing # Electronically Filed 12/26/ :49:07 AM IN THE SUPREME COURT OF THE STATE OF FLORIDA

Transcription

1 Filing # Electronically Filed 12/26/ :49:07 AM RECEIVED, 12/26/ :53:39, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF THE STATE OF FLORIDA Case No.: SC Lower Tribunal Case No: 3D HAROLD CRANE, Petitioner, v. LIFEMARK HOSPITAL OF FL, INC., Respondent. Case No.:SC Lower Tribunal Case No.: 3D HAROLD CRANE, Petitioner, v. MOUNT SINAI MEDICAL CENTER, INC., Respondent.

2 Lower Tribunal Case No.: 2D ALBERT MARCHMAN, Petitioner, v. ST. ANTHONY S HOSPITAL, INC., Respondent. JURISDICTIONAL BRIEF OF PETITIONER MATTHEW W. DIETZ, ESQ. Florida Bar No.: Disability Independence Group, Inc Southwest 35 th Avenue Miami, Florida Tel: (305) Fax: (305) mdietz@justdigit.org COUNSEL FOR PETITIONER

3 TABLE OF CONTENTS TABLE OF AUTHORITIES...2 PRELIMINARY STATEMENT...3 STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT...8 ARGUMENT CONCLUSION...14 CERTIFICATE OF SERVICE...15 CERTIFICATE OF COMPLIANCE 16 1

4 Federal Court Opinions TABLE OF AUTHORITIES United States v. Med. Soc. of S.C., 298 F. Supp. 145 (D.S.C. 1969) Florida State Constitution Fla. Const. art. V, Fla. Const. art. V, 3(b)(3)... 8 Florida State Opinions Mena v. Lifemark Hosps. of Fla., Inc., 50 So. 3d 759 (Fla. 1st DCA 2010)... 3, 5, 6, 9 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 9 Mancini v. State, 312 So. 2d 732 (Fla. 1975)... 9 Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006)... 9 Mena v. Lifemark Hosps. of Fla., Inc., 109 So. 3d 787 (Fla. 1st DCA 2013)... 9 Delva v. Cont l Grp., Inc., 137 So. 3d 371 (Fla. 2014) State v. Jackson, 650 So. 2d 24 (Fla. 1995) Florida State Statutes Fla. Stat , 7 Fla. Stat , 6, 7, 11, 13, 14 Fla. Stat Fla. Stat Fla. Stat , 14 Fla. Stat Rules Fla. R. App. P (a)(2)(A)(iv)... 8 Fla. R. App. P Other 42 U.S.C. 2000a(b)

5 PRELIMINARY STATEMENT Petitioner, Howard Crane, seeks review of the Third District Court of Appeal s decisions, and Albert Marchman, seeks review of the Second District Court of Appeal s decision, which both held that, as a matter of law, entities excluded under Chapter 509, Fla. Stat. regulating food and lodging establishments, are entitles excluded under the Florida Civil Rights Act, Fla. Stat In all three cases, the Petitioners are deaf men who suffered discrimination based on their disability from hospitals, which all contain food service establishments, and brought claims under the public accommodations provisions of the Florida Civil Rights Act, Fla Stat This Court has jurisdiction to review the district courts decisions holding that hospitals are not subject to the Florida Civil Rights Act, as such decisions directly and expressly conflicts with the First District Court of Appeal s decision in Mena v. Lifemark Hosps. of Fla., Inc., 50 So. 3d 759 (Fla. 1st DCA 2010), on the same issue of law and with similar facts. STATEMENT OF THE CASE AND FACTS On or about July 16, 2011, Howard Crane was voluntarily committed for depression and suicidal thoughts at Palmetto General Hospital operated by Lifemark Hospital of Florida ( Lifemark ), where he stayed for four days until July 20, 2011, before being discharged to Mt. Sinai Medical Center of Florida ( Mt. Sinai ). Crane is deaf and because of his disability, he does not speak English and requires an 3

6 American Sign Language Interpreter to assist him with communication. Despite requests by Crane to obtain a qualified interpreter from both hospitals, so that he could understand the psychological treatment, Crane was repeatedly denied and had no understanding of communication with the psychiatrists, nurses, interns and doctors that saw Crane for his suicidal depression. On July 19, 2011, Albert Marchman suffered a serious heart attack and was brought to St. Anthony s Hospital. Marchman is deaf and because of his disability, he does not speak English and requires an American Sign Language Interpreter to assist him with communication. He continually asked for an interpreter to understand what was occurring in his health or condition and was so frustrated, he signed himself out on July 21, On May 17, 2012, Crane timely filed a Public Accommodations Complaint of Discrimination with the Florida Commission on Human Relations, (hereinafter FCHR ) against Lifemark. Mr. Crane asserted jurisdiction under (11)(d) 1 1 Section (11), provides as follows: (11) Public accommodations means places of public accommodation, lodgings, facilities principally engaged in selling food for consumption on the premises, 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: (a) Any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than four rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his or her residence. 4

7 of the Florida Civil Rights Act and added: The premises, Palmetto General Hospital, is a covered accommodation by the presence of a food service establishment including the hospital cafeteria, and snack bar on the first floor called Out Takes, as well as vending machines. Also, the medical mall on property contains several restaurants including Pal-Med and Subway. Pursuant to Sec (11)(d), Florida Statutes, such covered establishments are located within Palmetto General Hospital, and Palmetto General Hospital holds itself out to patrons as such a covered establishment. See Mena, 50 So. 3d 759. Subsequently, on June 1, 2012, Crane timely filed a Complaint against Mt. Sinai, where he asserted jurisdiction under Fla. Stat (11)(d) and stated: The premises, Mt. Sinai Medical Center, is a covered accommodation by the presence of a food service establishment including the Founders Dining Room, Jacobson Eatery Cafeteria and Coffee Cart Service on the first floor of the Mount Sinai Campus. Pursuant to Sec (11)(d), Florida Statutes, such covered establishments are located within Palmetto General Hospital, and Palmetto General Hospital holds itself out to patrons as such a covered establishment. See Mena v. Lifemark Hospitals of Florida, Inc., 50 So.3d 759 (Fla. 1st DCA 2010). Initially, FHCR refused jurisdiction on both files, but eventually accepted jurisdiction based upon Mena, which held that the determination of a covered entity (b) Any 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 on the premises of any retail establishment, or any gasoline station. (c) Any motion picture theater, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment. (d) Any establishment which is physically located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment. 5

8 under Fla. Stat (11)(d) was an issue of fact. However, without an investigation being done, the he FCHR determined that there was no jurisdiction in any public accommodations case under the Florida Civil Rights Act against any hospital, even if such hospital contained a food service establishment. On May 31, 2012, Marchman timely filed a Complaint of Discrimination with the FCHR. Mr. Crane asserted jurisdiction under Fla. Stat (11)(d) of the Florida Civil Rights Act and added: The premises, St. Anthony s Hospital, is a covered accommodation by the presence of a food service establishment including the St. Anthony s Cafeteria, Koffey Korner Coffee and Pastries Shops, as well as vending machines. Pursuant to Sec (11)(d), Florida Statutes, such covered establishments are located within Palmetto General Hospital, and Palmetto General Hospital holds itself out to patrons as such a covered establishment. See Mena, 50 So. 3d 759. Again FHCR refused jurisdiction, but eventually accepted jurisdiction based upon Mena. Again, without an investigation being done, the FHCR entered a Notice of Dismissal on December 18, On July 23, 2013, the FCHR determined that there was no jurisdiction in any public accommodations case under the Florida Civil Rights Act against any hospital, even if such hospital contained a food service establishment. For all three cases, the FCHR issued a Final Order Dismissing Petition for Relief from an Unlawful Public Accommodations Practices. Both men filed timely notices of appeal of all three cases. Crane timely appealed, and on October 14, 2014, in Crane v. Lifemark, Case 6

9 No: 3D , the Third District Court of Appeal ruled that a private hospital in Florida cannot be a public accommodation under Fla. Stat (11), even when a food service establishment is on its premises. The Third District incorporated Chapter 509, which regulates food services establishments and public lodging establishments, en toto, into the Florida Civil Rights Act, and deemed the exclusion of hospitals in Chapter 509, excluded hospitals from the anti-discrimination requirements in Chapter 760. The next day, the Third District Court of Appeals affirmed the decision in Crane v. Mount Sinai Medical Center, Case No.: 3D , on the same grounds as the Crane v. Lifemark decision. On November 17, 2014, the Third District denied Crane s motion for rehearing on and, alternatively, for certification to this Court on both matters, and on December 16, 2014, Crane timely filed a Notice to Invoke this Court s Discretionary Jurisdiction on the ground that the Third District s decision expressly and directly conflicts with a decision of another district court of appeal on the same question of law. On December 12, 2014, in Marchman v. St. Anthony s Hospital, Inc., Case No. 2D , the Second District Court of Appeal ruled that Mr. Marchman failed to state a claim under the Florida Civil Rights Act for similar reasons as in the Crane decision, and that application of the Florida Civil Rights Act to a hospital would lead to double regulation of hospitals. On December 23, 2014, Marshman timely filed a 7

10 Notice to Invoke this Court s Discretionary Jurisdiction on the ground that the Third District s decision expressly and directly conflicts with a decision of another district court of appeal on the same question of law. SUMMARY OF THE ARGUMENT This Court has discretionary jurisdiction pursuant to Fla. Const. art. V, 3 and Fla. R. App. P (a)(2)(A)(iv), to review this case, because the Third and Second District s decision directly and expressly conflicts with decisions of the First District on whether a hospital, or any public accommodation, is statutorily excluded from the protections of the public accommodations provisions of the Florida Civil Rights Act. ARGUMENT Both in 1949, Virgil Hawkins was denied admission to the University Of Florida School Of Law solely because of racism, and Jewish doctors were forced to found Mt. Sinai Hospital in Miami-Beach due to anti-semitism in the medical profession. Florida has a history of discrimination based on race, color, religion, gender, national origin, age, disability, and marital status, for which the Florida Civil Rights Act was enacted to prevent and eradicate, and these decisions effectively exempt these facilities from this law. Under Fla. Const. art. V, 3(b)(3) and Rule 9.030(a)(2)(A)(iv), this Court may review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of this Court on the 8

11 same question of law. Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980). Conflict jurisdiction is properly invoked when the district court applies a rule of law to produce a different result in a case involving substantially similar facts. Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975). See Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1254 (Fla. 2006) (identifying misapplication of Supreme Court precedent as one means of supplying conflict jurisdiction). The Third District s and the Second District s decision directly conflicts with the First District s decision in Mena, which held that it was a factual question as to whether any facility with a food service establishment was included in the Florida Civil Rights Act. In Mena, another deaf patient sued one of the same hospitals, Lifemark, and the First District reversed the FCHR s decision that that agency did not have jurisdiction over a hospital when such hospital has a food service establishment. The First District found that there needed to be an evidentiary hearing to decide whether the Hospital establishment holds itself out as serving patrons of the cafeteria located on its premises. Mena, 50 So. 3d at 761. After a full evidentiary hearing, the FCHR found that the hospital did not hold itself out as such, both on factual and legal grounds, and dismissed the claim. The FCHR s finding was per curiam affirmed without opinion by the First District. Mena v. Lifemark Hosps. of Fla., Inc., 109 So. 3d 787 (Fla. 1st DCA 2013). In the instant appeal, the deaf men claim that all three hospitals have multiple food service establishments on the 9

12 premises. The Third District s opinion in Crane specifically found that any hospital is not covered by the Florida Civil Rights Act. In doing so, it imported Chapter 509, which regulates food service establishments and lodging establishments, into the Florida Civil Rights Act, in Chapter 760. As many food service establishments and lodging establishments are not regulated by Chapter 509, 2 the Third District 2 The entities that are specifically excluded from Chapter 509, include the following: Food Service establishments excluded under Fla. Stat (5)(b). a. Any place maintained and operated by a public or private school, college, or university: (a) For the use of students and faculty; or (b) Temporarily to serve such events as fairs, carnivals, and athletic contests. b. Any eating place maintained and operated by a church or a religious, nonprofit fraternal, or nonprofit civic organization: (a) For the use of members and associates; or (b) Temporarily to serve such events as fairs, carnivals, or athletic contests. c. Any eating place located on an airplane, train, bus, or watercraft which is a common carrier. d. Any eating place maintained by a facility certified or licensed and regulated by the Agency for Health Care Administration or the Department of Children and Family Services or other similar place that is regulated under s e. Any place of business issued a permit or inspected by the Department of Agriculture and Consumer Services under s f. Any place of business where the food available for consumption is limited to ice, beverages with or without garnishment, popcorn, or prepackaged items sold without additions or preparation. (This directly conflicts with the coverage under (11)(c)) g. Any theater, if the primary use is as a theater and if patron service is limited to food items customarily served to the admittees of theaters. (This directly conflicts with the coverage under (11)(c)) h. Any vending machine that dispenses any food or beverages other than potentially hazardous foods, as defined by division rule i. Any vending machine that dispenses potentially hazardous food and which is located in a facility regulated under s

13 j. Any research and development test kitchen limited to the use of employees and which is not open to the general public. Further, Chapter 509 excludes the following lodging establishments which may be otherwise covered under (11) through the exclusions under (4)(b): a. Any dormitory or other living or sleeping facility maintained by a public or private school, college, or university for the use of students, faculty, or visitors. b. Any facility certified or licensed and regulated by the Agency for Health Care Administration or the Department of Children and Family Services or other similar place regulated under s c. Any place renting four rental units or less, unless the rental units are advertised or held out to the public to be places that are regularly rented to transients. d. Any unit or group of units in a condominium, cooperative, or timeshare plan and any individually or collectively owned one-family, two-family, threefamily, or four-family dwelling house or dwelling unit that is rented for periods of at least 30 days or 1 calendar month, whichever is less, and that is not advertised or held out to the public as a place regularly rented for periods of less than 1 calendar month, provided that no more than four rental units within a single complex of buildings are available for rent. e. Any migrant labor camp or residential migrant housing permitted by the Department of Health under ss f. Any establishment inspected by the Department of Health and regulated by chapter 513. g. Any nonprofit organization that operates a facility providing housing only to patients, patients families, and patients caregivers and not to the general public. h. Any apartment building inspected by the United States Department of Housing and Urban Development or other entity acting on the department s behalf that is designated primarily as housing for persons at least 62 years of age. The division may require the operator of the apartment building to attest in writing that such building meets the criteria provided in this subparagraph. The division may adopt rules to implement this requirement. i. Any roominghouse, boardinghouse, or other living or sleeping facility that may not be classified as a hotel, motel, timeshare project, vacation rental, nontransient apartment, bed and breakfast inn, or transient apartment under s The classification of a place of lodging under is substantially narrower than the definition of lodging establishments under the Florida Civil Rights Act (11)(a). The Florida Civil Rights Act does not have a limitation on the size 11

14 immunized Hospitals, as well as all other facilities excluded from Chapter 509, from the reach of the Florida Civil Rights Act. In making this decision, the Third District adopted a United States District Court opinion, and gave deference to the FCHR s interpretation of the statute that they are charged with enforcing. In Crane v. Mount Sinai, the Third District Court of Appeals adopted the Crane v. Lifemark Decision. In Marchman, the Second District Court of Appeal found, solely by the text of the statute, that it was the legislative intent of the state to exclude accommodations excluded under Chapter 509 as causing facilities not regulated as requiring two different regulating mechanisms. This Court has traditionally provided a broad and liberal interpretation to the of a lodging establishment, but Chapter 509 excludes certain entitles which do, as follows: a. Hotel. A hotel is any public lodging establishment containing sleeping room accommodations for 25 or more guests b. Motel. A motel is any public lodging establishment which offers rental units with an exit to the outside of each rental unit, daily or weekly rates, offstreet parking for each unit, a central office on the property with specified hours of operation, a bathroom or connecting bathroom for each rental unit, and at least six rental units, and which is recognized as a motel in the community in which it is situated or by the industry. c. Vacation rental. A vacation rental is any unit or group of units in a condominium or cooperative or any individually or collectively owned single-family, two-family, three-family, or four-family house or dwelling unit that is also a transient public lodging establishment but that is not a timeshare project. d. Bed and breakfast inn. A bed and breakfast inn is a family home structure, with no more than 15 sleeping rooms, 12

15 protections of the Florida Civil Rights Act. Delva v. Cont l Grp., Inc., 137 So. 3d 371 (Fla. 2014). Similar to Delva, where this Court found that pregnancy discrimination is entitled to correspond to the intent and purpose the federal statue (Title VII) on which it was modeled, the public accommodation provisions of the FCRA must too correspond to the federal statute from which it was derived - Title II of the Civil Rights Act of Id at 376; see also State v. Jackson, 650 So. 2d 24, 27 (Fla. 1995). Further, the language for the definitions of Fla. Stat (11), and Title II of the Civil Rights Act of 1964 is practically identical. See 42 U.S.C. 2000a(b). Indeed, Federal courts have long held that hospitals that contain food service establishments are covered under Title II of the Civil Rights Act. United States v. Med. Soc. of S.C., 298 F. Supp. 145 (D.S.C. 1969). The Florida Legislature intended that the Florida Civil Rights Act encompass any other statute, by adding in language in Fla. Stat , which specifically creates a cause of action under the Florida Civil Rights Act for any violation of any Florida anti-discrimination statute, However, unlike Delva, which was premised on an omission from the Florida Legislature to incorporate pregnancy into the Florida Civil Rights Act, the District Courts of Appeal added in a regulatory scheme which was not envisioned by the legislature, and defies the broad interpretation of the Florida Civil Rights Act. All 3 Fla. S. Comm. on Judiciary, SB 46-A, Staff Analysis 7 (May 15, 2003) 13

16 licensed public accommodations are regulated; however, only a portion of such accommodations are regulated by Chapter 509, which provides oversight to some hotel and food service establishments to the Division of Hotels and Restaurants of the Department of Business and Professional Regulation. See id , The facilities excluded by Fla. Stat , are regulated by other agencies in the executive branch, such as the Agency for Health Care Administration or the Department of Agriculture. There is no intent in the statute to divine that the legislature intended that only entities regulated by the Division of Hotels and Restaurants of the Department of Business and Professional Regulation are subject to the Florida civil rights laws. Not only does this interpretation limits the inclusion of hospitals that contain public accommodations, the incorporation of the exclusions of Chapter 509 limits the items that are expressly covered in Fla. Stat (11), such as limiting the size of lodging establishments covered, the entities by who owns the entities covered, the types of entertainment facilities covered. The Florida Commission on Human Relations efforts to limit the jurisdiction of that agency defeats the legislative intent to have a broad and encompassing scope of the civil rights protections in Florida. CONCLUSION Wherefore, this Court has jurisdiction to review this case. 14

17 Respectfully Submitted, s/ Matthew W. Dietz MATTHEW W. DIETZ. ESQUIRE FL. BAR NO.: MATTHEW W. DIETZ. ESQ. Disability Independence Group, Inc Southwest 35 th Avenue Miami, Florida Tel: (305) Fax: (305) Counsel for Plaintiff/Appellant/ Petitioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Jurisdictional Brief has been filed electronically with the Florida Supreme Court, and sent via electronic mail this 26 th day of December, 2014 TO: Lorelei J. Van Wey, Esq. and Martin B. Goldberg, Esq., Lash & Goldberg, LLP, 100 SE 2 nd St. Ste. 1200, Miami, Florida 33131; Scott T. Silverman, Esq., Akerman LLP, Suite 1700, 401 East Jackson St., Tampa, FL MATTHEW W. DIETZ. ESQ. Disability Independence Group, Inc Southwest 35 th Avenue Miami, Florida Tel: (305) Fax: (305) By:s/ Matthew W. Dietz MATTHEW W. DIETZ. ESQUIRE FL. BAR NO.:

18 CERTIFICATE OF TYPE SIZE AND STYLE In accordance with Fla. R. App. P , counsel for Petitioner hereby certifies that the instant brief has been prepared with 14 point Times New Roman, a font that is not spaced proportionately. By: s/ Matthew W. Dietz MATTHEW W. DIETZ. ESQUIRE FL. BAR NO.: