O C FOOD & BEVERAGE, LLC D/B/A RACHEL'S AND WEST PALM BEACH FOOD AND BEVERAGE, LLC D/B/A RACHEL'S ADULT ENTERTAINMENT AND STEAKHOUSE

v.

ORANGE COUNTY, FLORIDA, ANITA YANES AND BRITTNEY SMITH

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

O C FOOD & BEVERAGE, LLC D/B/A RACHEL'S AND WEST PALM BEACH FOOD AND BEVERAGE, LLC D/B/A RACHEL'S ADULT ENTERTAINMENT AND STEAKHOUSE,

Appellants,

v. Case No. 5D21-1061 LT Case No. 2018-CA-03554

ORANGE COUNTY, FLORIDA, ANITA YANES AND BRITTNEY SMITH,

Appellees. ________________________________/

Opinion filed March 14, 2022

Appeal from the Circuit Court for Orange County, Jeffrey L. Ashton, Judge.

Steven G. Mason, of Law Office of Steven G. Mason, P.A., Altamonte Springs, for Appellants.

Elaine Marquardt Asad, and Jeffrey J. Newton, of Orange County Attorney’s Office, Orlando, for Orange County, Florida.

Matthew W. Dietz, of Disability Independence Group, Inc., Miami, for Appellees, Anita Yanes and Brittney Smith.

Rafael Paz, Acting City Attorney, Robert F. Rosenwald, Jr., Deputy City Attorney, and Faroat I. Andasheva, Assistant City Attorney I, Miami Beach, Amicus Curiae for Alachua County, Broward County, Monroe County, Palm Beach County, Pinellas County, City of Atlantic Beach, City of Delray Beach, City of Dunedin, City of Ft. Lauderdale, City of Gainesville, City of Mascotte, City of Miami Beach, City of North Port, City of Orlando, City of Sarasota, City of Tampa, City of Wilton Manors, North Bay Village, and Village of Wellington, in support of Appellee.

Travis R. Hollifield, of Hollifield Legal Centre, Winter Park, and Richard E. Johnson, of Law Office of Richard E. Johnson, Tallahassee, Amicus Curiae for National Employment Lawyers Association, Florida Chapter, in support of Appellees.

Diana L. Martin, of Cohen, Milstein, Sellers & Toll, PLLC, Palm Beach Gardens, Lindsay Nako, Impact Fund, Berkeley, CA, Amicus Curiae for Equality Florida Institute, Impact Fund, National Center for Lesbian Rights, ADL, ACLU of Florida, Freedom for All Americans, Lambda Legal Defense and Education Fund, Inc., League of Women Voters of Florida, Legal Aid At Work, and Zebra Coalition, in support of Appellees.

HARRIS, J.

Appellants, OC Food & Beverage, LLC, d/b/a Rachel’s and West Palm

Beach Food and Beverage, LLC., d/b/a Rachel’s Adult Entertainment and

Steakhouse (collectively, “Rachel’s”), appeal the trial court’s final judgment

denying its motion to declare Chapter 22 of the Orange County Code facially

unconstitutional. Rachel’s argues that Chapter 22, known as Orange

County’s Human Rights Ordinance (HRO), conflicts with and is preempted

by chapter 760, Florida Statutes, known as the Florida Civil Rights Act

(FCRA). On the narrow issue of whether the HRO conflicts with the FCRA

because it eliminates the statutory conditions precedent to filing suit, we

agree with Rachel’s and reverse on this limited basis. In doing so, we do not

reach Rachel’s preemption argument.

The underlying suit involved a sex discrimination claim against

Rachel’s for prohibiting Anita Yanes and Brittney Smith, plaintiffs below, from

entering its establishment on the basis that they were not accompanied by a

male companion. Yanes and Smith filed suit against Rachel’s alleging a

violation of section 22-42 of the Orange County Code, which provides:

(a) It is a violation of this article for a person who owns or operates a place of public accommodation, whether personally or through the actions of an employee or independent contractor, to deny or refuse to another individual the full and equal

enjoyment of the facilities and services of any place or public accommodation on the basis of that individual’s age, race, color, religion, national origin, disability, marital status, familial status, sex, or sexual orientation.

(b) It is a violation of this article for a person who owns or operates a place of public accommodation, either personally or through the actions of an employee or independent contractor, to display or publish any written communication which is to the effect that any of the facilities and/or services of a place of public accommodation will be denied to any individual or that any such individual is unwelcome, objectionable or unacceptable because of that individual’s age, race, color, religion, national origin, disability, marital status, familial status, sex, or sexual orientation.

Orange Cnty., Fla., Code of Ordinances ch. 22, § 4 (2018). The plaintiffs filed

their suit pursuant to section 22-4 of the HRO, which details the procedures

and remedies for filing a private cause of action for discrimination claims:

(a) An aggrieved individual may, under this chapter, commence a civil action in a court of competent jurisdiction against the person alleged to have committed a discriminatory practice; provided, however, that such civil action must be filed no later than one (1) year after the discriminatory practice is alleged to have been committed.

(b) If, in a civil action commenced under this chapter, the court finds that a discriminatory practice has been committed or is about to be committed, the court may issue an order prohibiting the discriminatory practice and providing affirmative relief from the effects of the discriminatory practice including, but not limited to, a temporary or permanent injunction or other equitable

relief, a temporary restraining order, an award of actual damages, including back pay, punitive damages, an award of reasonable attorney’s fees, interest, and costs, or other such relief as the court deems appropriate.

Orange Cnty., Fla., Code of Ordinances ch. 22, § 4(a), (b) (2018). Because

section 22-4 specifies that a complainant may file suit directly in court without

first pursuing administrative remedies, Yanes and Smith did so.

By contrast, the FCRA requires satisfaction of conditions precedent

before filing a civil action for sex discrimination in places of public

accommodation. See §§ 760.08, 760.11, Fla. Stat. (2018). Specifically, a

complainant must file a complaint with the Florida Commission on Human

Relations (the “Commission”), the Equal Employment Opportunity

Commission, or any unit of government of the state which is a fair-

employment-practice agency, within one year of the alleged discriminatory

practice. § 760.11(1), Fla. Stat. (2018). Within 180 days of the filing of the

complaint, the Commission must determine whether there is reasonable

cause to believe that a discriminatory practice has occurred. § 760.11(3),

Fla. Stat. (2018). Only once the Commission determines that there is

reasonable cause—or if it fails to determine whether there is reasonable

cause within 180 days after the filing of the complaint—may the complainant

then file a civil action in court. § 760.11(4)(a), (7), (8), Fla. Stat. (2018).

Rachel’s moved to dismiss the complaint, arguing that the Orange

County HRO is preempted by or otherwise conflicts with the FCRA. Rachel’s

also filed a third-party complaint against Orange County seeking a

declaratory judgment that sections 22-4 and 22-42 of the Orange County

HRO are unconstitutional. The trial court concluded that the HRO was neither

preempted by nor in conflict with the FCRA and, therefore, declined to find

that the HRO was unconstitutional. We disagree and find that conflict exists

between the HRO and the FCRA.

Charter counties such as Orange County have broad powers of local

self-government “not inconsistent with general law.” Art. VIII, § 1(g), Fla. Const.; Phantom of Brevard, Inc., v. Brevard Cnty., 3 So. 3d 309, 314 (Fla.

2008). “[I]n a field where both the State and local government can legislate

concurrently, a county cannot enact an ordinance that directly conflicts with

a state statute.” Orange Cnty. v. Singh, 268 So. 3d 668, 673 (Fla. 2019).

There is conflict between a local ordinance and a state statute where the

ordinance “stands as an obstacle to the execution of the full purposes of the

statute.” Masone v. City of Aventura, 147 So. 3d 492, 495 (Fla. 2014)

(internal quotations omitted). “A municipality cannot forbid what the

legislature has expressly licensed, authorized or required, nor may it

authorize what the legislature has expressly forbidden.” Rinzler v. Carson,

262 So. 2d 661, 668 (Fla. 1972). If a county has enacted an inconsistent

ordinance, that ordinance must be declared null and void. Singh, 268 So. 3d

at 674.

We find that section 22-4 of the HRO conflicts with the FCRA because

it allows a party aggrieved by sex discrimination in public accommodations

to proceed directly to court without first exhausting administrative remedies,

while section 760.11 requires the exhaustion of administrative remedies

before filing an action in court. In construing the FCRA, the Florida Supreme

Court has concluded that “the Legislature wanted persons who believe they

have been the object of discrimination to go through the administrative

process prior to bringing a circuit court civil action.” Joshua v. City of

Gainesville, 768 So. 2d 432, 436 (Fla. 2000).1 The purpose of the

administrative process is “to provide the [Commission] with the first

opportunity to investigate the alleged discriminatory practices to permit it to

perform its role in obtaining voluntary compliance and promoting conciliation

efforts.” Sunbeam Television Corp. v. Mitzel, 83 So. 3d 865, 874 (Fla. 3d

DCA 2012) (quoting Gregory v. Ga. Dep’t of Hum. Res., 355 F. 3d 1277, 1279

(11th Cir. 2004)) (internal quotations omitted).

By eliminating the FCRA’s conditions precedent to filing suit, and by

eliminating the role of the Commission, section 22-4 stands as an obstacle

to the execution of the full purposes of the statute. See Masone, 147 So. 3d

at 495. We therefore find that section 22-4 of the HRO, which allows an

individual to commence a civil action without first following the administrative

requirements outlined in the FCRA, conflicts with state law and is therefore

unconstitutional. We reverse the trial court’s final judgment solely on this

basis.

REVERSED and REMANDED.

NARDELLA and WOZNIAK, JJ., concur.