Lexington Fayette Urban Cnty. Human Rights Comm'n v. Hands On Originals, Inc.

• Decision Date: 12 May 2017
• Docket Number: NO. 2015-CA-000745-MR,2015-CA-000745-MR
• Parties: LEXINGTON FAYETTE URBAN COUNTY HUMAN RIGHTS COMMISSION AND AARON BAKER FOR GAY AND LESBIAN SERVICES ORGANIZATION APPELLANTS v. HANDS ON ORIGINALS, INC. APPELLEE
• Court: Kentucky Court of Appeals

LEXINGTON FAYETTE URBAN COUNTY HUMAN RIGHTS COMMISSION ANDAARON BAKER FOR GAY AND LESBIAN SERVICES ORGANIZATION APPELLANTS v. HANDS ON ORIGINALS, INC. APPELLEE

NO. 2015-CA-000745-MR

Commonwealth of Kentucky Court of Appeals

MAY 12, 2017

NOT TO BE PUBLISHED

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE JAMES D. ISHMAEL, JR., JUDGE

ACTION NO. 14-CI-04474

OPINION

AFFIRMING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND TAYLOR, JUDGES.

KRAMER, CHIEF JUDGE:

The Lexington Fayette Urban County Human Rights Commission ("Commission") appeals an order of the Fayette Circuit Court reversing its determination that appellee, Hands On Originals ("HOO"), discriminated against the Gay and Lesbian Services Organization ("GLSO") in violation of Lexington-Fayette Urban County Government's public accommodation ordinance, Local Ordinance 201-99, Section 2-33 (hereinafter referenced as "Section 2-33" or the "fairness ordinance"), discussed below. The circuit court also determined that if HOO violated the above-stated ordinance, the Commission's application of the ordinance to HOO's conduct, under the circumstances of this case, was unconstitutional. Having carefully reviewed the record and applicable law, we agree HOO did not violate the ordinance and AFFIRM on that basis. Therefore, any discussion of whether an alternative constitutional basis supported the circuit court's judgment is unwarranted.¹

FACTUAL AND PROCEDURAL HISTORY

The GLSO is a Lexington-based organization that functions as a support network and advocate for gay, lesbian, bisexual, or transgendered individuals. Its membership also includes individuals in married, heterosexual relationships. One such individual, Aaron Baker, functioned as the GLSO's President at all relevant times during this dispute.

HOO is in the business of promoting messages; specifically, it prints customized t-shirts, mugs, pens, and other accessories. Blaine Adamson is one of HOO's owners and manages the business. According to HOO's policy andmission statement, which appears on its website, HOO's menu of services is limited by the moral compass of its owners:

Hands On Originals both employs and conducts business with people of all genders, races, religions, sexual preferences, and national origins. However, due to the promotional nature of our products, it is the prerogative of Hands On Originals to refuse any order that would endorse positions that conflict with the convictions of the ownership.

In this vein, the record provides examples of subject matter HOO has refused to promote because its ownership has deemed it morally objectionable, such as adult entertainment products and establishments. The record also provides examples of images HOO has refused to promote, such as the word "bitches" and depictions of Jesus dressed as a pirate or selling fried chicken.

With that said, the Commission alleged HOO violated the fairness ordinance on March 8, 2012. On that date, Don Lowe, on behalf of the GLSO, telephoned HOO to place an order for t-shirts that would bear a screen-printed design with the words "Lexington Pride Festival 2012," the number "5," and a series of rainbow-colored circles around the "5." The GLSO intended to sell these t-shirts to promote the 2012 Lexington Pride Festival, an event it organized and encouraged everyone to attend. Blaine Adamson, on behalf of HOO, answered the telephone call. What happened next was described later in the following exchange between Adamson and an interviewer from the Commission:

INTERVIEWER: Ok, on or about March 8^th when you spoke to Don Lowe of the GLSO, did you attempt to find out what kind of organization the GLSO was during that conversation?

ADAMSON: I do not recall asking that specifically. I recall asking what the process was about. I had somewhat of an idea but I wasn't sure.

INTERVIEWER: So at any point during this conversation did you ask what the GLSO was about?

ADAMSON: I do not recall asking specifically that. I remember, yeah I don't remember asking that.

INTERVIEWER: Ok, so would it be accurate to say that you just asked about the Pride Festival and what exactly did he say?

ADAMSON: I asked him, um, because he had called and left a message. He mentioned something about the Pride Festival and so when I called him, I first asked him was he sure that he had spoke with me because I traditionally don't do quotes or anything and he said he had. So, I just said ok well then I wanted to take care of him and I said what you need and he explained he needed shirts for the Pride Festival and I asked him what exactly is the Pride Festival and he explained to me what it was about.

INTERVIEWER: Did he explain it to you?

ADAMSON: Yes.

INTERVIEWER: What did he say?

ADAMSON: He basically said it was a Pride Festival downtown, um, that it was for the gay and lesbian community. And then he began to tell me because I had asked him what was on the shirt. That was my nextquestion. And he said Pride Festival and I honestly can't remember what he said after that.

INTERVIEWER: Ok. Once Mr. Lowe explained what the t-shirt was for, what was your response?

ADAMSON: Well I knew that, I knew immediately that he would be upset with me, with what I was about to say. So I said that, I said, "Don, I know that this will upset you, but because of my Christian beliefs, I can't promote that." Then, um, he was upset. And I can't remember what else he had said at that point because we were kind of talking a little bit, back and forth. I was trying to...

INTERVIEWER: Ok.

ADAMSON: And he mentioned something about [inaudible]. He hung the phone up.

INTERVIEWER: Ok, ok. Here is a copy of the t-shirt design. That look about accurate of what you recall?

ADAMSON: I never saw the design but from over the past, I never saw the design before we talked.

INTERVIEWER: Ok you didn't see the actual design before you talked. What about this design do you find offensive? Or what about this picture that you see here, would you find offensive enough not to print?

ADAMSON: Um, the Lexington Pride Festival, the wording.

INTERVIEWER: Ok.

ADAMSON: To me it's promoting a message, um an event that I can't agree with because of my conscience.

INTERVIEWER: Ok. So would you say it's not exactly the design of the shirt that's offensive but rather themessage that it's portraying and what the GLSO stands for?

ADAMSON: Um, specifically it's the Lexington Pride Festival, the name and that it's advocating pride in being gay and being homosexual and I can't promote that message. It's something that goes against my belief system.

INTERVIEWER: So you feel that you use your own personal religious beliefs to make a decision not to print the t-shirts?

ADAMSON: My own personal religious beliefs? Yes.

INTERVIEWER: Ok.

ADAMSON: Not to promote that message. Correct.

Shortly thereafter Aaron Baker, on behalf of the GLSO, filed a complaint with the Commission alleging HOO had discriminated on the basis of sexual orientation and gender identity in violation of Section 2-33. Based upon what Adamson related to its interviewer, the Commission ultimately agreed. In the relevant part of its order, the Commission explained:

[HOO] argues that Mr. Adamson's objection to the printing of the t-shirt was not because of the sexual orientation of the members of the GLSO, but because of the Pride Festivals' advocacy of pride in being homosexual. Acceptance of [HOO's] argument would allow a public accommodation to refuse service to an individual or group of individuals who hold and/or express pride in their status. This would have the absurd result of including persons with disabilities who openly and proudly display their disabilities in the Special Olympics, persons of race or color, who are not only of differing race and color, but express pride in being so,and persons of differing religions who express pride in their religious beliefs.

The Hearing Commissioner notes that human beings are either internally proud or not of their race, color, sexual orientation, disability, age, or religion. Those that are internally proud of their status may or may not outwardly express such pride. It is doubtful that [HOO] would deny that a substantial number of those of the Christian faith are internally proud of being Christian, but never express that pride to others. However, those members of protected classes who outwardly express pride in their own religion or sexual orientation do so because of their self-identification of being within that classification of persons.

The purpose of the Lexington Pride Festival is to celebrate and exhibit pride in their status as persons of differing sexual orientation or identity. The Hearing Commissioner agrees with the Commission's contention that [HOO's] objection to the printing of the t-shirts was inextricably intertwined with the status of the sexual orientation of the members of the GLSO. Mr. Adamson's refusal on behalf of [HOO] was clearly because of the sexual orientation and identity of members of the GLSO.

In short, the Commission held HOO had violated the fairness ordinance because, by refusing to print the t-shirts requested by the GLSO, HOO had either discriminated on the basis of sexual orientation and gender identity; or had effectively discriminated on the basis of sexual orientation and gender identity by discriminating against conduct engaged in exclusively or predominantly by gay, lesbian, bisexual, or transgendered persons.

HOO subsequently appealed by filing an original action in Fayette Circuit Court. The circuit court reversed the Commission, finding that HOO did not violate the fairness ordinance; and, even if HOO had violated it, the ordinance was unconstitutional as applied under the circumstances of this case. This appeal followed.

STANDARD OF REVIEW

In reviewing an agency decision, this Court, as well as a circuit court, may only overturn that decision if the agency acted arbitrarily or outside the scope of its authority, if the agency applied an incorrect rule of law, or if the decision itself is not...