       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 15, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2510
                          Lower Tribunal No. 12-2253
                             ________________


                                Harold Crane,
                                    Appellant,

                                        vs.

                    Lifemark Hosp. of Fla., Inc., etc.,
                                    Appellee.



     An Appeal from the Florida Commission on Human Relations.

     Matthew W. Dietz, for appellant.

      Lash & Goldberg LLP and Martin B. Goldberg and Lorelei J. Van Wey, for
appellee.


Before SHEHERD, C.J., and LAGOA and LOGUE, JJ.

     LOGUE, J.
      We review the decision of the Florida Commission on Human Relations

which held that it lacked jurisdiction to adjudicate a complaint filed by Harold

Crane, who is deaf, against Lifemark Hospital of Florida, Inc., for failure to

provide an American Sign Language interpreter. The issue on appeal is whether a

private hospital in Florida constitutes a “public accommodation” under the Florida

Civil Rights Act of 1992 by virtue of having a cafeteria within its premises. Based

on express language in the Act that excludes cafeterias in hospitals from the

provisions of the Act, we agree with the Commission that it does not have

jurisdiction. Accordingly, we affirm the Commission’s determination that it lacked

jurisdiction of this dispute.

                FACTS AND PROCDEDURAL BACKGROUND

      In his complaint, Crane alleged he is deaf, does not speak, and that his

primary language is American Sign Language. During his four-day admission to

the Hospital, Crane alleges, the telecommunications device for the deaf provided to

him by the Hospital was inadequate, and although he requested an interpreter, the

Hospital failed to provide one until an hour before he was discharged. As a result,

at various points during his stay, he was unable to understand or communicate with

the doctors and nurses who treated him. Particularly pertinent to the legal issue on

appeal, Crane alleged the Hospital “is a covered accommodation by the presence




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of a food service establishment including the hospital cafeteria, and snack bar on

the first floor called Out Takes, as well as vending machines.”

      After his discharge, Crane filed the complaint at issue. The Commission

dismissed the complaint for lack of jurisdiction. It determined that a private

hospital is not a public accommodation covered by the Act. Crane timely appealed.

                                     ANALYSIS

      The Florida Civil Rights Act of 1992 prohibits discrimination based on

handicap in places of public accommodation. In this regards, it reads:

      All persons shall be entitled to the full and equal enjoyment of the
      goods,     services,     facilities,   privileges,    advantages,       and
      accommodations of any place of public accommodation, as defined in
      this chapter, without discrimination or segregation on the ground of
      race, color, national origin, sex, handicap, familial status, or religion.

§ 760.08, Fla. Stat. (2011).

      As the language quoted above indicates, however, the provisions of the act

extend only to a “place of public accommodation.” The Act defines “public

accommodation” by listing specific types of establishments and by including a

general category at the end of its definition. The establishments specifically listed

do not include hospitals. Crane, however, relies on the general provision at the end

of the definition. The definition reads, in pertinent part:

      “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


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      following establishments which serves the public is a place of public
      accommodation within the meaning of this section:
      ...

      (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.

§ 760.02(11), Fla. Stat. (2011) (emphasis added).

      Crane contends that the existence of the cafeteria on the grounds of the

Hospital causes the Hospital to qualify as a public accommodation because the

cafeteria, a covered establishment, is located within the Hospital and the Hospital

holds itself out as serving the patrons of the cafeteria. The Florida Civil Rights Act,

however, includes specific language that excludes from its provisions food service

establishments located in private hospitals.

      Section 509.092 of the Florida Civil Rights Act expressly prohibits

discrimination in public food service establishments.1 It reads:

      Public lodging establishments and public food service establishments
      are private enterprises, and the operator has the right to refuse
      accommodations or service to any person who is objectionable or
      undesirable to the operator, but such refusal may not be based upon
      race, creed, color, sex, physical disability, or national origin. A person


1 The Legislature has expressly indicated twice that the Florida Civil Rights Act
includes specific statutory sections in both chapters 760 and 509, Florida Statutes.
§ 760.01(1), Fla. Stat. (2011) (“Sections 760.01-760.11 and 509.092 shall be cited
as the ‘Florida Civil Rights Act of 1992’”); § 760.02(1) (“‘Florida Civil Rights Act
of 1992’ means ss. 760.01-760.11 and 509.092”).

                                          4
      aggrieved by a violation of this section or a violation of a rule adopted
      under this section has a right of action pursuant to s. 760.11.

      The Act, however, goes on to define public food service establishments in a

manner that expressly excludes from its provisions food service establishments in

facilities certified or regulated by the Florida Agency for Health Care

Administration. The definition with this exclusion reads:

          (5)(a) “Public food service establishment” means any building,
      vehicle, place, or structure, or any room or division in a building,
      vehicle, place, or structure where food is prepared, served, or sold for
      immediate consumption on or in the vicinity of the premises; called
      for or taken out by customers; or prepared prior to being delivered to
      another location for consumption.
          (b) The following are excluded from the definition in paragraph
      (a):
           ....
          4. 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 Families or other similar place that is
      regulated under s. 381.0072.

§ 509.013(5)(a)-(b)(4), Fla. Stat. (2011) (emphasis added).

      The Hospital is a facility that is certified, licensed, and regulated by the

Florida Agency for Health Care Administration; among other things, it is required

to have a license issued by the Agency for Health Care Administration in order to

operate as a hospital. § 395.003(1)(a), Fla. Stat. (2011). The cafeteria within its

premises is therefore excluded from the definition of “public food service

establishments” covered by the Florida Civil Rights Act. Because the cafeteria in

the Hospital is not a covered establishment, the cafeteria’s location within the


                                         5
premises of the Hospital does not cause the Hospital to become a covered

establishment.2

      The identical interpretation of the statutes was reached by the federal district

court in Martin v. Halifax Healthcare Systems, Inc., No. 6:12-cv-1268-Orl-

31DAB, 2014 WL 1415647, at *2 (M.D. Fla. Apr. 11, 2014). The Court reasoned:

      The [Act’s] definition of “public accommodations” includes the
      following: “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.” Fla. Stat. § 760.02(11)(d) (emphasis
      added). . . . [T]he Defendants point out that the statutory definition of
      “public food service establishment,” found at Fla. Stat. §
      509.013(5)(b)(4) excludes eating places that are maintained by a
      facility certified or licensed and regulated by the Agency for Health
      Care Administration (henceforth, the “AHCA”), which licenses
      Halifax Hospital. . . . In response, the Plaintiffs cite to cases under
      federal law in which the existence of hospital cafeterias turned
      hospitals into places of public accommodation, but fail to point to any
      evidence supporting the same result in this case or offer any argument

2 Because we rely on an express exclusion that exists in Florida Statutes and not
federal statutes, we are not reaching the issue of whether a covered cafeteria within
a hospital would cause the hospital to qualify as a “covered establishment.” In the
context of federal statutes, courts are divided on this issue. Compare
Goonewardena v. N. Shore Long Island Health Sys., No. 11 CV 2456, 2012 WL
7802351, *10 (E.D.N.Y. Nov. 5, 2012) (“[T]he case law in this Circuit is clear that
a private hospital is not a place of public accommodation under Title II of the Civil
Rights Act . . . .”), and Foster v. Howard Univ. Hosp., No. Civ. A. 06-244, 2006
WL 2938701, *2 (D.D.C. Oct. 13, 2006) (holding Howard University Hospital is
not a place of public accommodation under Title II of the Civil Rights Act), with
U.S. v. Med. Soc’y of S.C., 298 F. Supp. 145 (D.S.C. 1969) (holding that where a
hospital included a snack bar and cafeteria that held themselves out to serve
patrons of the hospital, the hospital itself was a place of public accommodation
under the federal Civil Rights Act).

                                          6
      that would overcome the exclusion, under Florida law, for eateries
      operated by AHCA-licensed entities. Summary judgment will be
      entered in favor of the Defendants . . . .

      Most importantly, this interpretation of the Act was adopted by the Florida

Commission on Human Relations in deciding it had no jurisdiction in this case.

Crane v. Lifemark Hosp. of Fla., Inc., Final Order No. 13-058 (FCHR Sept. 12,

2013); see also Mena v. Lifemark Hosp. of Fla., Inc., Final Order No. 12-023, at 3

(FCHR May 16, 2012) (“[T]he presence of a cafeteria maintained by a hospital and

located in the hospital cannot turn the hospital into a ‘a place of public

accommodation’ as defined by the Florida Civil Rights Act.”), aff’d, Mena v.

Lifemark Hosp. of Fla., Inc., 109 So. 3d 787 (Fla. 1st DCA 2013). Because the

Commission is charged by the Legislature to investigate complaints of

discrimination under the Florida Civil Rights Act, section 760.06(5), Florida

Statutes (2011), its interpretation of the Act is entitled to due deference from this

court. Verizon Fla., Inc. v. Jacobs, 810 So. 2d 906, 908 (Fla. 2002) (“An agency’s

interpretation of the statute it is charged with enforcing is entitled to great

deference,” and “a court will not depart from the contemporaneous construction of

a statute by a state agency charged with its enforcement unless the construction is

‘clearly erroneous.’”) (citations omitted). The interpretation by the Florida

Commission on Human Relations is far from clearly erroneous: indeed, we find it

persuasive.



                                         7
      Crane notes, however, that the Florida Civil Rights Act provides that its

purposes “are to secure for all individuals within the state freedom from

discrimination because of race, color, religion, sex, national origin, age, handicap,

or marital status . . . .” §760.01(3). The Act then expressly requires that its terms

“shall be construed according to the fair import of its terms and purposes stated in

this section and the special purposes of the particular provision involved.” Id.

Based on this language, Crane suggests that the court should go beyond the literal

meaning of the Act in order to effectuate its broad, remedial purpose.

      The language of the Act requiring that it be interpreted broadly to fulfill its

remedial purpose, however, does not displace the fundamental canons of statutory

interpretation that (1) “legislative intent is the polestar that guides this Court’s

interpretation” and (2) “[t]o discern legislative intent, we look ‘primarily’ to the

actual language used in the statute.” Borden v. East-European Ins. Co., 921 So. 2d

587, 595 (Fla. 2006); see also Delva v. Cont’l Group, Inc., 137 So. 3d 371 (Fla.

2014) (interpreting the Florida Civil Rights Act of 1992, holding “[w]hen

construing a statute, this Court attempts to give effect to the Legislature’s intent,

looking first to the actual language used in the statute and its plain meaning”)

(citations and quotations omitted). Applying these fundamental canons of statutory

construction, we find that the broad statement in the Act that it should be

interpreted to accomplish its remedial purposes does not authorize a court to ignore



                                         8
the Legislature’s clear, unambiguous, and express exclusion of cafeterias in

hospitals from the statutory definition of “public food service establishments.”

                                     CONCLUSION

      Because the eating establishments are not covered under the Florida Civil

Rights Act, they do not turn the Hospital into a “place of public accommodation”

under section 760.02(11)(d). Accordingly, the Commission was correct when it

determined it had no jurisdiction.

      Affirmed.




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