Statutory Construction Again

The Florida First District Court recently (04.21.21) rendered Love v. Young, No. 1D18-2844. This is a civil case, not workers' compensation. But, it aptly illustrates the methodology for statutory interpretation and the conflict of rights. 
The facts of the case are intriguing. A group of male dancers was to perform at a gathering. Tickets had been sold, some of which were designated as VIP tickets. Trial testimony suggested at least some expectation that members of the audience were anticipated to make physical contact with the dancers during the show.
The plaintiff had a VIP ticket for the show. However, it somehow came to the performer's attention that plaintiff was not a biological female. Plaintiff testified "having been assigned male gender at birth, but identifying and presenting as female." Though the show was advertised for "ladies only," Plaintiff attended. Plaintiff's presence was not reported as "a transgender," but instead that a man was present "dressed as a woman." This presence caused trepidation among some performers, and they refused to perform under those circumstances.
One of those who organized the event proposed "a compromise solution" in which Plaintiff was moved to a different seat, but still in the "same section and ticket class." This was purportedly to facilitate the performers being able to "better see and avoid" Plaintiff. Plaintiff was upset by the request, "asked for and received a full refund of the ticket price, and left." Plaintiff sued alleging discrimination under the the Florida Civil Rights Act of 1992 (FCRA):
"All persons are entitled 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, national origin, sex, pregnancy, handicap, familial status, or religion."
Notably, Plaintiff's allegations of facts were not identical to those above. The facts recited above were found by the trial court in rejecting the Plaintiff's version. Upon the facts found to be true, the trial court concluded the issue to decide was whether those facts "establish(ed) a prima facia case" of a "discriminatory act; i.e., the performers’ right to be protected from unwanted sexual touching." The trial court concluded that "No person should be required to perform body contact sexual or sexually suggestive acts with another except by consent." It concluded that there was no violation of the FCRA.
Notably, the plaintiff alleged on appeal "for the first time that the very existence of a 'ladies-only' event violated the FCRA." The court noted that this was not raised at trial, labelled it an "unpreserved argument," and declined to address it further. That is the first important reminder of this decision. Trial is the place to make arguments, allegations, and objections. When issues are not raised at trial, appellate courts are reluctant to address them on appeal in most instances. There is notably a narrow exception in workers' compensation for constitutional issues, which the JCC lacks authority to decide; however, counsel should persistently focus on making their point at trial so that it is preserved for the court. But good litigators do not rely on narrow exceptions when they can avoid it. 
The court noted that Plaintiff's arguments on appeal were "policy arguments," beyond the scope of the FCRA, which would require "novel public policy decisions." Instead, the majority sided with "judicial restraint" - "if it is not necessary to decide more, it is necessary not to decide more." That is a second critical lesson of this decision. Courts appropriately address issues by interpreting the law that the legislative or constitutional processes have delivered. Courts are not makers of law. The dissent seemingly agrees with this premise in concluding the trial judge created an FCRA defense in this matter.
The issue, as framed by the trial court, was one of statutory construction; essentially whether the FCRA was applicable to this set of facts. The trial court concluded that it was. Beyond that, the trial court concluded, however, that if the FCRA applied, it would not require "individuals engaged in intimate or sexual performances to allow anyone and everyone to touch them in such a way against their will." Essentially, can a person discriminate in deciding who may touch him/her in an intimate way? The trial court concluded the dancer's "personal privacy . . . prevail(s)s over . . . (plaintiff's) claim of an unfettered legal right to" touch the dancers. This is the third critical lesson we are reminded of, many times there are competing rights in this world and in those conflicts government (the legislature or courts) is called upon to take sides, and often does.
Having concluded that the trial court was correct ("The trial court correctly held"), the court explained that in this case "any decision on the scope of the FCRA would be mere dictum" (not necessary to the decision). The conclusion essentially does not reach whether the FCRA should (could) be interpreted to imply some right to touch, and concludes instead with the protection of the dancer's privacy rights.
The decision is a plurality. That is the fourth critical lesson. Sometimes appellate courts decide cases by a majority agreeing to both decision and reason. However, it is common for the majority to agree to the outcome, but for different reasons, a "plurality." A challenge for the community with all court decisions is predictability. A unanimous panel (3 judges deciding a case) may not reach the same decision as another unanimous panel that later considers the same such facts or law. But, some lawyers are more cautious of precedent that includes dissent or in which the decision is a plurality. This case is both. The lack of unanimity may suggest an increased potential for a different future decision.
There is a concurring opinion ("concurring in result only."). It is focused not upon the rights of the dancers, and the conflict perceived with the FCRA. Instead, the concurrence focuses upon the applicability of the FCRA. It explains that law applies to "place(s) of public accommodation." Essentially, anyone may discriminate for any reason they wish in their own home, and perhaps in their private club. It is in the public realm that the FCRA prohibits discrimination. The concurring opinion explains a great many public places that are within that definition.
However, it concludes that the show in this case was staged in a private accommodation that the FCRA excludes: “lodge halls or other similar facilities of private organizations which are made available for public use occasionally or periodically.” This opinion provides insight as to how often this particular facility was used by the public and concluded its weekly "charity bingo events" and monthly dances, established by the evidence, did not make it a "place of public accommodation"; too "occasional." As such, it was not subject to the FCRA. This is the fifth critical reminder of this case, the statutory law defines and refines. Courts may find the answer in the plain meaning of a statute. 
The dissent noted that the discrimination in this instance was based upon what "the performers perceived" regarding plaintiff's gender. The dissent focuses upon the perceptions and conclusions of the performers in not wishing to dance for Plaintiff. It notes that the Florida Commission on Human Relations (FCHR) "found 'reasonable cause to believe that a discriminatory practice' in violation of the FCRA had occurred." This is the sixth critical point to remember. The Commission, and similar such bodies, receives and investigates complaints. However, it is not axiomatic that a court will necessarily agree with the Commission's conclusions in a particular case.
The dissent concluded that the defendant in this case, Young, "did not contest that Love was entitled to protection under the FCRA." Here, the dissent seems to suggest that the applicability of the FCRA was not preserved for appeal and therefore would be appropriately presumed. This is a seventh critical reminder (or perhaps still the first?), the preservation of error can be critical to a court's decision. Despite that, judges can view preservation differently. The dissent viewed the FCRA applicability issue from the perspective of (trans)gender, and the concurrence from the perspective of characterizing the facility.
Reaching back to Reconstruction and the beginning of "separate but equal," the dissent cites Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)(not a plurality) in urging the plaintiff's rights were violated. It stresses that "by electing to dance at a public accommodation, the dancers were subject to the FCRA’s prohibition against discrimination." Their solution, the dissent suggests, would be not agreeing to dance in "public accommodations," thus avoiding the conflict and the friction of their rights and the public's. This suggests that one is compelled to forebear one's rights when they conflict with the rights of others in public. That is perhaps a difficult suggestion for either the plaintiff or the dancer(s)?
The eighth critical point to glean from this decision is that the law is often subject to interpretation. Perceptions may vary, even among those who decide the case. In an ever-changing world, we are perhaps destined to continue to experience the conflicts between various person's or group's rights and obligations. This may be in regards to any variety of relationships and interactions, including workers' compensation. The law will struggle with taking sides, and the courts may struggle with interpretations in those disputes. It is likely that this particular decision will not be the last regarding allegations of discrimination, the perceptions of people, and the interpretation of rights and protections. 
By Judge David Langham
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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