359 P.3d 574
Or. Ct. App.2015Background
- The Rose City T-Girls is an informal social group that includes diverse sexual orientations and gender identities.
- Respondents Blachana, LLC and Christopher Penner own and operate the P Club in North Portland.
- BOLI charged Respondents with violations of ORS 659A.403, 659A.406, and 659A.409 based on Penner’s voicemails to Cassandra Lynn urging the T-Girls not to return on Fridays.
- Eleven aggrieved T-Girls who attended Friday gatherings learned of the voicemails and did not return.
- BOLI concluded the voicemails created a denial of equal accommodations due to sexual orientation and imposed damages and penalties.
- The Oregon Court of Appeals affirmed, upholding BOLI’s findings and the constitutional defense as applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Penner’s voicemails constituted a denial of equal accommodations under ORS 659A.403. | Penner’s conduct was on account of sexual orientation. | Voicemails were expressions of desire, not denials of service. | Yes; BOLI’s finding that the voicemails denied service was supported by substantial evidence. |
| Whether leaving voicemails violated ORS 659A.409. | Voicemails were not communications that deny services. | Voicemails constitute prohibited communications under 659A.409. | Yes; BOLI properly found a violation of 659A.409. |
| Whether the Article I, section 8 defense invalidates applying ORS 659A.403/659A.406/659A.409 to Respondents. | Respondents argued application infringes free speech rights. | Robertson framework does not bar enforcement given the as-applied facts. | Unpersuasive; the statutes properly applied to the facts as found. |
| Whether BOLI’s findings are supported by substantial evidence and not misinterpreted. | Respondents dispute factual conclusions about denial of service. | BOLI’s findings are supported by the voicemails and forum interpretation. | Supported by substantial evidence; agency’s factual findings stand. |
| Preservation/arguability of arguments not developed before BOLI. | Some defenses were not adequately preserved or developed. | Record supports affirmance on preserved grounds. | Arguments not preserved or adequately developed were rejected. |
Key Cases Cited
- State v. Robertson, 293 Or 402 (1982) (three Robertson categories for analyzing laws under Article I, section 8)
- State v. Babson, 355 Or 383 (2014) (as-applied challenges under Robertson category three)
- Meltebeke v. Bureau of Labor and Industries, 322 Or 132 (1995) (scope and standard for agency factual review; deference to agency findings)
- State v. Plowman, 314 Or 157 (1992) (distinction between content of speech and its use as evidence)
- State v. Johnson, 345 Or 190 (2008) (constitutional limits on abusive speech doctrines)
- State v. Ciancanelli, 339 Or 282 (2005) (limits of speech-restraining statutes under Article I, section 8)
- State v. Stone, 84 Or App 575 (1987) (discussion of how revisions to anti-coercion statutes may pass constitutional muster)