LEE RAVEN, Complainant

SHARROW DRUGS INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed April 27, 2007
ravenle . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

106.52 Public places of accommodation or amusement.

(1) Definitions. In this section:...

(e) 1. "Public place of accommodation or amusement" shall be interpreted broadly to include, but not be limited to, places of business or recreation;...

(3) Public place of accommodation or amusement.

(a) No person may do any of the following:

1. Deny to another...the full and equal enjoyment of any public place of accommodation or amusement because of sex, race, color, creed, disability, sexual orientation, national origin or ancestry....

The commission agrees with the administrative law judge that the evidence of record shows that the complainant was asked to leave the pharmacy because of the loud and belligerent confrontations she initiated with pharmacy staff without reasonable justification, not because of her race. The record shows that the copay charges and the examination of the contents of the prescription containers, the bases for the complainant's objections, were the charges imposed, and practices followed, by respondent with all similarly situated customers of the pharmacy.

The commission addressed a comparable fact situation in Rhyne v. Mayflower Motel and Lounge, ERD Case No. 199903828 (LIRC April 16, 2001), where it held that:

Where, as here, the evidence established that the complainant was barred from the respondent's premises based upon repeated instances of disorderly conduct, and not because of her race, color, age or gender, there is no probable cause to believe that a violation of § 106.52 of the statutes occurred.

The complainant focused in her posthearing argument on the fact that "Sharrow Sr., Sharrow Jr., and Ladonna Wilke all lied in their statements to the police and on the stand in court" when they stated that the complainant was in the pharmacy for 15-20 minutes during her second visit to the pharmacy on November 18 when, in fact, the tape recording she made of her visit demonstrates that she was only there for 5-7 minutes. The complainant clarified in the reply brief she filed on January 23, 2006, that she was referring to Wilke's testimony in court to the effect that the complainant was in the pharmacy "probably fifteen minutes or so" during her second visit.

First of all, the record of the trial on the complainant's disorderly conduct charge is not part of the hearing record here and, as a result, may not be considered by the commission in reaching its decision. However, even if it were, since neither Sharrow Sr. nor Sharrow Jr. testified at hearing as to the length of the complainant's second visit, this court testimony by Wilke would not place their credibility into question. Moreover, Wilke did not testify at hearing, so her court testimony could not impeach any hearing testimony by her.

The complainant further asserts that she only got "loud... in response to the foul treatment I received from the Sharrows," and indicates in support of this assertion that Sharrow Jr. "made a crack that 'you ain't got fifty cents?'" and went "on about some stupid charge account instead of just making a note for store employees." The credible evidence of record does not show that, when Sharrow Jr. verified with the complainant that she did not have the additional $.50 with her, he was sarcastic or insulting, or used the words the complainant attributes to him. In addition, the record shows that Sharrow Jr. did not single the complainant out for unfavorable treatment in an effort to "aggravate" her, but instead followed the respondent's consistent practice when he filled out a charge form after the complainant indicated she wanted to pay the $.50 copay at a later time.

The complainant failed to sustain her burden to prove that probable cause exists to believe that she was denied the full and equal enjoyment of the respondent pharmacy due to her race.

cc: Attorney Randall Lueders

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