Same-Sex Discrimination by Florida Businesses

                Ever since the U.S. Supreme Court decided in June that “same-sex couples may exercise the fundamental right to marry in all States” and “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character”, media outlets have been reporting regularly on bakeries and other establishments being fined or sued for refusing to provide services to same-sex couples (Oregon; Louisiana; Colorado).  Obergefell v. Hodges, No. 14–556, slip op. at 28 (U.S. 2015).  So the question naturally follows: do Florida businesses have the right to refuse service to same-sex couples solely because they are members of the same sex?  For the reasons below, it is my conclusion that current Florida and federal law does not include sexual orientation or same-sex marriage as protected classes under their respective civil rights acts.  Neither Florida law nor federal law specifically mandates that same-sex couples be provided services without discrimination.  Likewise, Florida and federal law does not affirmatively protect businesses seeking to discriminate against same-sex couples.

Businesses, however, should proceed with extreme caution.  In addition to the charter counties that have passed their own civil rights protections against discrimination based on sexual orientation (Orange County Ord. 22-42; Miami-Dade County Ord. Sec. 11A-19; etc.), federal law (if it were to change) may apply if the business is engaged in interstate commerce.  Further, this issue is an emerging issue that is certainly going to be debated by both the judiciary and the legislature in the coming months.  As such, the law will be very fluid and is subject to rapid change in the coming year.

Florida Civil Rights Act Applicability Generally

            The Florida Civil Rights Act of 1992 (FCRA) was enacted to establish state civil rights “for all individuals within the state freedom from discrimination because of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.”  Fla. Stat. § 760.01(2) (2015).  Notice the absence of the language sexual orientation.  Comparable civil rights acts in other states specifically include that language (as do the charter county ordinances above).  For comparison, the Colorado statute specifically includes sexual orientation and marital status.  Colo. Rev. Stat. § 24-34-601 (2014).  The Colorado court decision linked in the initial paragraph of this blog imposed a civil fine on a bakery specifically because of their state’s statute; there is no comparable language in FCRA. 

Under the expressio unius est exclusio alterus canon of statutory interpretation, Florida courts can be expected to hold that the inclusion of several protected classes in FCRA necessarily excludes those classes not listed.  Further, the Florida Legislature just added a new class to FCRA this past legislative session (pregnancy).  2015 Fla. Laws Chapter 2015-68.  Florida courts will be reluctant to read a new class for sexual orientation into FCRA given that the Legislature just debated the area.

FCRA does create an autonomous Commission on Human Relations who receives all initial claims of discrimination from aggrieved parties.  Fla. Stat. §760.03–07 (2015).  The Commission has a broad charge to “promote and encourage fair treatment and equal opportunity for all persons regardless of… religion… sex… or marital status and mutual understanding and respect among all members of all economic, social, racial, religious, and ethnic groups; and shall endeavor to eliminate discrimination against, and antagonism between, religious, racial, and ethnic groups and their members.”  Fla. Stat. §760.05 (2015).  While the Commission could conceivably be a catalyst for convincing the Legislature to broaden existing restrictions on public accommodations, sexual orientation is again notably absent from the list of protected parties.

For FCRA to apply, the Commission must make a reasonable cause finding of a violation of FCRA.  Fla. Stat. §760.11(4) (2015).  Upon such a finding, the complainant can elect to proceed to state court or have an administrative hearing.  Fla. Stat. §760.11 (2015).  Places of public accommodation are covered by FCRA.  Fla. Stat. §760.08 (2015).  Those places include “lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, places of exhibition or entertainment, and other covered establishments.”  Fla. Stat. §760.11(11) (2015).  The statute goes on to list examples such as hotels, motels, restaurants, on-premises food providers, theaters, sports arenas, and stadiums.  Id. 

Even if a business is a “public accommodation” under FCRA, a violation exists only when that business discriminates on the basis of “race, color, national origin, sex, pregnancy, handicap, familial status, or religion.”  Fla. Stat. §760.08 (2015).  Again, sexual orientation is conspicuously absent.  Therefore, FCRA does not penalize a business for discriminating on the basis of sexual orientation.

Regulation of Florida’s Lodging Establishments & Restaurants

            It comes as no surprise that Florida’s hotels and restaurants are regulated in other areas of Florida law other than FCRA.  Thus, an examination of these regulations is also required before reaching the conclusion that discrimination based on sexual orientation or same-sex marriage status is not actionable under present law.

            Oversimplified for space, Florida law regulates hotels, motels, restaurants, and places 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.”  Fla. Stat. §509.013(5)(a) (2015).  Exclusions include fraternal orders, common carriers (places, trains, ferries), hospital cafeterias, farms, theater snack bars, and vending machines.  Fla. Stat. §509.013(5)(b) (2015).  It is here, for the first time in this analysis, that the hypothetical wedding bakery popularized by the media is first implicated.

            Florida public lodging establishments and public food establishments, as defined, have “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, pregnancy, physical disability, or national origin. A person aggrieved by a violation of this section or a violation of a rule adopted under this section has a right of action pursuant to [FCRA].”  Fla. Stat. §509.092 (2015).  Again, there is a conspicuous absence of sexual orientation as a protected class.  Under the FCRA analysis above, I come to the same conclusion: Florida’s regulatory scheme affecting hotels, motels, restaurants, bakeries, and the like does not preclude discrimination of same-sex couples based on sexual orientation or the same-sex nature of their marriage.

            The prudent lodging or restaurant operator should be mindful of posting any restrictions against providing services to same-sex couples in accordance with Fla. Stat. §509.101(1) (2015) [English language, prominent posting, etc.] and should be mindful of the ejection/refusal of admission requirements of Fla. Stat. §509.141 & 509.142 (2015).

Federal Law

            The Civil Rights Act of 1964 entitles people to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation… without discrimination or segregation on the ground of race, color, religion, or national origin.”  42 U.S.C. §2000a.  The covered establishments mirror the requirements of FCRA [hotels, motels, restaurants, on-premises food, theaters, etc.].  Id.  In order for the federal law to apply, a business must be primarily engaged in the business of interstate commerce [even minimal contacts or potential contacts with out-of-state customers or must be supplying services to the State government.  Id.  This is purposefully broad and has been interpreted as broadly as possible by the U.S. Supreme Court.  Suffice to say, federal law would cover the vast majority of businesses providing services to the public.

            Again, there is a conspicuous absence of sexual orientation or same-sex couple from the protected classes.  Therefore, I come to the same conclusion as above: federal law does not preclude a business from refusing to provide services to a couple based on their sexual orientation or the same-sex nature of their marriage.

Strong Caveats

            Lest Florida businesses run out and begin openly discriminating against same-sex couples without fear, let me provide the following advice.  First, it is no small point that the U.S. Supreme Court has found a fundamental right for members of the same sex to marry.  Fundamental rights are among the most bedrock principles protected by the U.S. Constitution.  Many states have found a fundamental right to be protected by the government from discrimination based on sexual orientation.  The U.S. Equal Employment Opportunity Commission has already found it illegal for an employer to discriminate against a worker based on transgender, lesbian, gay, or bisexual identification.  Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011),http://www.eeoc.gov/decisions/0120110873.txt; Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011),http://www.eeoc.gov/decisions/0520110649.txt; Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012),http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt.  It is highly likely that the U.S. Supreme Court will consider whether gender identification and/or sexual orientation should be protected by the government from discrimination as a class (similar to race and national origin protections).

            Second, Florida law does not preclude charter counties (basically the largest counties in the state with some exception; see this table) from passing ordinances precluding businesses from discriminating against people based on their sexual orientation or the same-sex nature of their marriage.  I listed two county ordinances above as examples; there are others who have passed or are considering to pass similar ordinances.

            Finally, this issue is certain to gain traction for debate and change in Florida.  Just this month, a Longwood, FL bakery was targeted by an opponent of same-sex marriage for their refusal to print “We do not support gay marriage” on a cake.  I think that the incident was the first of many to come in Florida.

Conclusion

            In sum, while local laws by Florida charter counties may preclude businesses operating within the county from doing so, Florida law and federal law are silent as to whether businesses can refuse to provide services to couples solely because of their sexual orientation or the same-sex nature of their marriage.  Businesses that choose to discriminate against same-sex couples in non-charter counties or in counties whose laws are silent on the issue do so at their own risk.  The issue is certain to attract more debate and interest in the coming months as the issue increases in visibility and businesses and couples alike seek to force courts to consider the issue directly.