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Free Speech

OK for Restaurant to Eject City Councilman Whose Political Positions "Had Financially Harmed" the Restaurant

California public accommodations law has been read as banning discrimination based on "political affiliation," but the court concluded that this didn't apply to discrimination based on "political views" more broadly (or based on votes as an elected official).


From Hennessey's Tavern, Inc., 2019 WL 3825492 (Cal. Super. Ct. July 26, 2019), written by Judge Deirdre Hill:

On June 28, 2018, plaintiff Hennessey's Tavern, Inc. filed a complaint against Nils Nehrenheim for [1] trespass to property and (2) conversion, trespass, and destruction of personal property. Plaintiff alleges that this lawsuit arises out of the improper conduct of Redondo Beach City Councilperson Nehrenheim, who intentionally trespassed onto Hennessey's Tavern premises, refused to leave, disturbed business by loudly talking about destroying Rebel Republic Social House's dining deck, and destroyed and carried away a sign from inside Hennessey's Tavern. [Nehrenheim in turn cross-complained, claiming that he was ejected from Hennessey's in violation of the Unruh Civil Rights Act, the California public accommodations nondiscrimination statute.] …

Nehrenheim alleges that … [Hennessey's] has banned Nehrenheim from the restaurant because of his exercise of his constitutional rights of freedom of speech and petition … [and] for his political views, votes, association, political affiliation, and personal beliefs….

The Unruh Civil Rights Act ("the Act") provides that "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." The primary purpose of the Act "is to compel recognition of the equality of all persons in the right to the particular service offered by an organization or entity covered by the act."

"[T]he antidiscrimination provisions of the Unruh Act are not confined only to a limited category of 'protected classes' but rather protect 'all persons' from any arbitrary discrimination by a business establishment." Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 730. The "'identification of particular bases of discrimination … is illustrative rather than restrictive."' "As our prior decisions teach, the Unruh Act preserves the traditional broad authority of owners and proprietors of business establishments to adopt reasonable rules regulating the conduct of patrons or tenants; it imposes no inhibitions on an owner's right to exclude any individual who violates such rules. Under the act, however, an individual who has committed no such misconduct cannot be excluded solely because he falls within a class of persons whom the owner believes is more likely to engage in misconduct than some other group. Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination." "Derived from the early common law right of equal access to the services of innkeepers or common carriers, the Unruh Act prohibits business establishments from withholding their services or goods from a broad class of individuals in order to 'cleanse' their operations from the alleged characteristics of the members of an excluded class."

Under this cause of action, Nehrenheim added allegations that that on September 15, 2015, Redondo Beach's mayor and City Council approved a one-year trial period for the installation of outdoor dining decks in Riviera Village. Paul Hennessey was supportive and committed to funding the Dining Deck Pilot Program. On March 2016, the Dining Deck Pilot Program began its one-year trial period. On March 31, 2016, two permits were issued to construct the improvements in the public right of way at 1710 S. Catalina Avenue (Rebel Republic Social House) and 1712 S. Catalina Avenue (Hennessey's Tavern)…. On November 21, [2017,] the City Council members voted [4-0 to terminate] the deck program. Nehrenheim opposed continuing the deck program based on his personal views and political beliefs, including his beliefs that the program was unfair and would not be in the best interests of the community. His concerns included pushing costs on the community, lack of parking, and that sidewalk dining would become cost prohibitive for small businesses. [Details of the resulting acrimonious political dispute between Hennessey's and Nehrenheim omitted. -EV] …

On June 10, 2018, Nehrenheim entered Hennessey's Tavern and a manager informed him that he would have to leave after finishing his drink… Defendant argues that Nehrenheim was not disinvited because of his occupation as a politician, nor was he disinvited because he was a member of a particular political party, political ideology, associated with persons with a particular political ideology, or held any particular deep rooted political belief, or any belief fundamental to his character. Cross-defendant contends that it does not run afoul of the Act by disinviting a person who had financially harmed it.

In opposition, Nehrenheim argues that he is protected because of his political views. He contends that Hennessey viewed Nehrenheim as anti-development related to the business interests of Hennessey and that is why he was excluded from the premises….

Both parties agree that Nehrenheim does not fall under the enumerated classifications as set forth under Civil Code §51(b). As to non-enumerated classifications, past decisions have extended Unruh Act protection to several classifications that are not specifically enumerated in the statute, but cross-complainant fails to cite to any case law that recognizes "political views" as a judicially-recognized classification.

In determining whether "a future claim of discrimination, involving a category not enumerated in the statute or added by prior judicial construction, should be cognizable under the Act,"—in this case, "political views"—there is a three-part analytic framework. Koebke v. Bernardo Heights Country Club (2005) 36 Cal. 4th 824, 840. "The [Supreme] court mandated inquiry into three areas: (1) the language and history of the Act; (2) any legitimate business interests justifying limitations on consumer access; and (3) the consequences of expanding class recognition." King v. Hofer (1996) 42 Cal. App. 4th 678, 682 (citing to Harris v. Capital Growth Investors XIV (1991) 52 Cal. 3d 1142, 1148). "Thus, the first prong of the Harris inquiry is whether a new claim of discrimination under the Act is based on a classification that involves personal characteristics."

Although Harris did not define "personal characteristic," the Harris court indicated that, "at a minimum, it encompassed both the categories enumerated in the Act and those categories added to the Act by judicial construction." "What those categories have in common is not immutability, since some are, while others are not, but that they represent traits, conditions, decisions, or choices fundamental to a person's identity, beliefs and self-definition."

As plaintiff alleges, his "political views" involve his views on terminating the pilot program, which include such reasons as "unfair," "would not be in the best interests of the community," "costs on the community," "lack of parking," and that "sidewalk dining would become cost prohibitive for small businesses." On their face, his "political views," even if such reasons fall under "political," do not "represent traits, conditions, decisions, or choices fundamental to a person's identity, beliefs, and self-definition." Thus, the court concludes, "political" views are not a "personal characteristic."

As for a legitimate business interest, the Unruh Act does not cover business retaliation. See Gayer v. Polk Gulch, Inc. (1991) 231 Cal. App. 3d 515, 525, where the court held that a bar was entitled to exclude the plaintiff because he had recently filed a small claims action against it. See also Scripps Clinic v. Superior Court (2003) 108 Cal. App. 4th 917, 934 (upheld summary judgment to Unruh Act claim based on the plaintiff being banned from a medical clinic for previously suing its doctors for malpractice). Further, the consequences of expanding class recognition would be significant. Accordingly, the court declines to create a "new" classification.

As for "political affiliation," there are no facts alleged to support a "political affiliation."

Further, as for being banned from the restaurant because of his "votes," voting falls under conduct rather than on his status as a member of a class or a personal characteristic. "Were we to hold that conduct involved here gave rise to a protected class under the Act, we would open the door to a seemingly endless stream of new cases never contemplated by the Legislature."

As for Nehrenheim exercising his constitutional rights of freedom of speech and petition, the Unruh Act does not protect…. "[T]he First Amendment imposes limitations 'on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only."'

For a different result in another L.A. Superior Court case many years ago, see this post about the Alpine Village Inn being successfully sued for ejecting patrons who were wearing Nazi lapel pins; but note that such trial court cases are nonprecedential, and it's certainly possible that one Superior Court judge might take a different approach than another.