RANDALL LYNN WENDT, Complainant

BAJET VAN LINES, 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, with the following modification:

Paragraph 1 of the administrative law judge's CONCLUSIONS OF LAW is deleted, and the following is substituted therefor:

"There is no probable cause to believe that the respondent denied to the complainant or charged him a higher price than the regular rate for the full and equal enjoyment of a public place of accommodation or amusement because of a disability, within the meaning of Wis. Stat. § 106.52."

The decision of the administrative law judge (copy attached) is modified and, as modified, is affirmed.

Dated and mailed October 6, 2005
wendtra . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for commission review the complainant submits numerous documents that are not part of the hearing record, including one which he describes as a "nonfinal amendment to his complaint." The complainant contends that the administrative law judge was unaware of his nonfinal amendment and did not know anything about his complaint that the respondent was circulating a letter showing a preference against him. He also states that the administrative law judge never even got into hearing certain arguments regarding the respondent's "bait and switch" and "strong arm tactics" against him. The complainant contends that he needs another hearing before an impartial administrative law judge, at which both sides can know what the issues are, and at which the respondent can answer his questions without the Sheriff's Department taking up the whole time.

The complainant's arguments are unpersuasive. The commission has conducted an independent review of the record, but finds no basis to question the objectivity of the administrative law judge, nor does it see any other reason to grant a new hearing in this matter. The hearing was properly confined to those issues that were raised by the complainant in his complaint and which were referenced in the hearing notice. Issues raised in an amended complaint that was never filed with the Equal Rights Division were not before the administrative law judge. The complainant was permitted to present material and relevant evidence on his own behalf, and the commission sees no reason to believe that he was not afforded a fair opportunity to present his case. Consequently, the request for a new hearing is denied.
Having determined that no further hearing will be granted, the commission must base its review solely on that evidence which was presented before the administrative law judge, without regard to those documents submitted by the complainant with his petition for review which are not part of the hearing record. Further, the commission cannot take into consideration those arguments made by the complainant which are in reference to other court proceedings separate from the hearing before the administrative law judge. The commission's review is limited to the evidence that was presented to the administrative law judge in this case. Other legal matters involving the same parties have no bearing on the commission's decision.

The complainant contended that the respondent discriminated against him by denying him the full and equal enjoyment of a public place of accommodation or amusement because of a disability, and by charging him more than the standard rate for services because of a disability. The evidence adduced at the hearing established that the respondent operates a van service which contracts with the Marathon County Sheriff's Department to assist in the moving and storage of personal property when there has been a forced eviction. The complainant neither entered into, nor attempted to enter into, a contract with the respondent for the moving or storage of his personal property. Rather, as indicated in the administrative law judge's decision, the respondent was acting as an agent of the Marathon County Sheriff's Department, and any services that may have been provided to the complainant by the respondent were provided in that capacity. While the commission believes that the respondent, a van service, may be considered a public place of accommodation or amusement, and has modified that portion of the administrative law judge's decision which finds otherwise, it agrees with the administrative law judge that the complainant, as a third party who did not directly attempt to avail himself of the respondent's services, did not have the type of relationship with the respondent that is contemplated by the statute. As such, there is no basis to find that he was denied the full and equal enjoyment of a public place of accommodation or amusement. The administrative law judge's decision is modified in accordance with the foregoing and, as modified, is affirmed.

cc: Attorney Michael J. Roman

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uploaded 2005/10/21