Editor’s Note: The Fifth District Court of Appeal has reinstated the women’s lawsuit. The court ruled the case couldn’t be dismissed because Orange County was not made a party to the case, which focused on the constitutionality of a county human rights ordinance. The county should have been brought into the litigation by the defendants, according to the court’s ruling. The appellate court sent the case back to the trial court for further proceedings.
Two women who were refused entry to a strip club in Orlando, FL, because they weren’t accompanied by a man are leading a legal battle that may have far-reaching ramifications.
The women, Anita Yanes and Brittney Smith, tried to go into Rachel’s Club on S Orange Avenue on Feb. 10, 2018. The club bills itself as a “luxurious adult entertainment complex and award-winning, five-star restaurant.”
According to a discrimination lawsuit filed on behalf of the women, Smith had gone to the club weekly for three years accompanied by a man.
But one night, Smith took Yanes, visiting from Alabama, to Rachel’s because she wanted her to see the place and a dancer that Smith said looked like Yanes.
A club employee, however, told the women they couldn’t enter because they might be looking for their husbands or boyfriends, they said.
“We don’t want a domestic situation,” he said, according to a cell phone video recording. They’ve had women do that before, he said, come to the club to drag their husbands away.
The women argued and threatened a gender discrimination lawsuit, but he stood his ground and didn’t let them inside without male accompaniment.
Lawsuit claims sex discrimination under county ordinance
The women later sued under an Orange County ordinance prohibiting discrimination in public accommodations. The ordinance is more expansive than a state public accommodations law, although both prohibit sex discrimination.
The state law requires plaintiffs to go through an administrative process before suing. At the end of that process, which can take six months or longer, plaintiffs may sue if they are issued a document called a “Reasonable Cause letter.”
The women’s lawyer says that process is cumbersome. The county ordinance has no such requirement.
The outcome of the suit could determine the ability of local counties and cities to enact anti-discrimination ordinances that provide more protection than state laws.
Strip club claims its survival in jeopardy
An attorney representing the club, Steven G. Mason, says the future survival of clubs like Rachel’s is at stake in this battle.
“This is a very significant case that could have implications across the country,” Mason said in one court hearing. “And we’re going to fight to the death to protect this bar.”
Mason was arguing in favor of a motion he filed to overturn the Orange County ordinance. The trial judge granted the motion, which is now being considered by an appellate court.
Mason maintains strip clubs are particularly vulnerable in these circumstances because strict regulations of their business put them at risk of losing their licenses if they don’t control the activities of their customers.
“Adult bars are regulated by local government,” Mason said. “I think it’s a form of discrimination. They don’t want these bars to exist. If a crime occurs in that bar, they don’t necessarily have to prove the bar was part of it.”
Mason said a major concern is the club could be prosecuted for prostitution if people inside engage in such activities after meeting in the club.
Because of these risks, Mason argued, Rachel’s and similar bars have had policies for “self-preservation” requiring women patrons to be accompanied by men.
“They don’t want a woman walking around that bar talking to the male customers,” he said, “going up to the bar, and then when an exchange occurs, the liability is imputed to them even though they had no involvement in it.”
State, local discrimination laws differ
All but five states have laws that prohibit discrimination in public accommodations for people who are not disabled, according to the National Conference of State Legislatures. Although the federal public accommodations law prohibits discrimination only based on race, the state laws all cover race, gender, ancestry and religion.
Some states’ laws cover additional categories, including marital status, sexual orientation, age and gender identity.
The five states without public accommodations laws for non-disabled individuals are Alabama, Georgia, Mississippi, North Carolina and Texas.
21 governments support plaintiffs
In the Rachel’s case, 21 Florida-based municipal governments filed a friend-of-the-court brief asserting that their own human rights ordinances could be in danger if the courts ultimately strike down the Orange County ordinance. This, they argued, could take away local jurisdictions’ rights to enact such protections to add to those provided by the Florida Civil Rights Act.
The municipalities’ brief says at least 400 cities and counties nationwide, including 46 in Florida, have enacted their own human rights ordinances.
“These policies often ban discrimination in housing, places of public accommodation, and employment,” the brief states. “HRO policies most often ban discrimination based on race, religion, sex, disability, ethnicity, national origin, sexual orientation, gender identity, and marital status. Some include less commonly protected categories such as intersexuality, marital and familial status, age, ancestry, height, weight, domestic partner status, labor organization membership, familial situation, and political affiliation.”
The Orange County ordinance prohibits discrimination based on age, race, color, religion, national origin, disability, marital status, familial status, sex, or sexual orientation, including gender identity.
The Florida Civil Rights Act prohibits discrimination because of “race, color, national origin, sex, pregnancy, handicap, familial status, or religion.” It does not include the other categories covered by the county ordinance – marital status, sexual orientation and gender identity.
League of Women Voters, ACLU and others support complaint
In addition to the municipalities’ brief, another friend-of-the-court brief was filed in support of the women by 11 different advocacy groups, including Equality Florida, the National Center for Lesbian Rights, the American Civil Liberties Union of Florida, the League of Women Voters of Florida and the Florida National Organization for Women.
The organizations argue that local human rights ordinances play a “critical role …in eradicating discrimination,” and have long been recognized as legitimate. Advocates note that state law does not explicitly preempt local governments from passing their own laws.
As long as such local ordinances do not conflict with state law, the organizations argued, they have been considered legitimate.
Strip club lawyer says suit avoids state law
Mason maintained the women circumvented the state law by using the municipal ordinance to file their lawsuit. They avoided the administrative review and did not obtain a Reasonable Cause letter. Instead, they went straight to court invoking the county ordinance.
He says the local ordinances should be struck down as unconstitutional and that local jurisdictions should not be permitted to create their own systems that eliminate requirements of state law. He also questioned whether clubs should have to face a patchwork of regulations that change “every 20 miles.’’
Attorney Matthew Dietz, who represents the women, said the administrative investigation process is “extraordinarily slow.” And if the state Commission on Human Relations doesn’t issue a Reasonable Cause letter, the plaintiffs are not allowed to file in court.
Instead, they can appeal through an administrative process, which doesn’t allow for non-economic damages, such as pain and suffering. That process, Dietz said, can take two or three years.
Attorney Lisa C. Goodman, also representing the women, told the trial judge that she has a similar lawsuit against a club in Miami that didn’t permit two lesbians to enter.
“You have to be accompanied by a man because we have dated thoughts that women alone are either prostitutes or scorned women,” she said.
Judge’s order dismisses complaint, is appealed
In his order dismissing the lawsuit, Circuit Judge Keith A. Carsten held that the Florida Civil Rights Act, while not explicitly preempting local statutes, “is intended to be a complete structure for litigating discrimination cases.”
If the women want to pursue a case against the club, he ruled, they must seek relief under the state law.
But Carsten didn’t technically designate his order as a final resolution of the case. So, the Fifth District Court of Appeal, which is considering the women’s appeal, sent the case back so the plaintiffs could seek a final order.
The appellate court said it couldn’t rule on the case until the dismissal is final.
Contact Elaine Silvestrini at Elaine@legalexaminer.com. Follow her on Twitter at @WriterElaineS.