CIVIL RIGHTS COMMISSION
STATE OF HAWAII
WILLIAM D. HOSHIJO, Executive ) Docket No. DR 97-0011
Director, on behalf of the )
complaint filed by )
JOHN DOE, )
)
and )
)
ESTATE OF JOHN DOE, )
)
Complainant-Intervenor, )
)
v. )
)
CHANEY BROOKS & COMPANY and )
LUANA KAI AOAO, )
)
Respondents. )
______________________________)
FINAL DECISION ON PETITION FOR DECLARATORY RELIEF
I. PROCEDURAL SUMMARY
On January 23, 1997, the Executive Director filed a Motion for
an Order Reversing Hearings Examiner's Order dated January 15,
1997. The Commission treated the motion as a Petition for
Declaratory Relief, under H.A.R. 12-46-61 et seq., seeking a
declaration that the Commission has jurisdiction over a complaint
under Chapter 489, Discrimination in Public Accommodations.
Presently pending for administrative hearing before the
Hearings Examiner is a complaint for employment discrimination
involving the same parties, Docket No. 96-006-PA-D. The Examiner
dismissed the claim under Chapter 489 by the Order of January 15,
1997. Proceedings in that case were stayed by the Commission until
the instant Petition is decided.
The Commissioners heard oral argument on the Petition on March
3, 1997, at 1:30 p.m. Gary Chang, Esq., appeared for Respondent
Luana Kai AOAO ("LUANA KAI"). LUANA KAI opposed the petition,
relied upon its memoranda filed in Docket No. 96-006-PA-D, and
presented oral argument. After the hearing, LUANA KAI submitted
additional information at the request of the Commission. Karl K.
Sakamoto appeared for the Executive Director, presented oral
argument, and filed a supplemental memorandum. Kirk Cashmere,
Esq., representing the Estate of John Doe on the employment
discrimination claim, was present and made oral representations
regarding the case.
II. FACTUAL STATEMENT:
For the purposes of the Petition, the undisputed facts are:
1) LUANA KAI is an association consisting of the owners of
condominiums in the Luana Kai Resort condominium located on Maui.
A majority of the units are rented to guests by a management
company hired by LUANA KAI.
2) LUANA KAI entered into an agreement with, Eyes of Maui,
whose President was Complainant John Doe ("DOE"), to operate a
tourist activity desk on the premises. Under the agreement, the
tourist activity desk was required to provide the following
services to the guests: information about tourist-related
activities, pool equipment and supervision, and live entertainment
at weekly pupu parties. Eyes of Maui paid LUANA KAI $400.00 per
month for the opportunity to operate the activity desk on the
premises. It sold activity packages, such as helicopter and boat
tours, to the guests and received commissions from the activity
providers, not LUANA KAI.
3) LUANA KAI accepted unsolicited proposals from persons
interested in operating a tourist activity desk on the premises.
A representative of LUANA KAI reviewed the proposals and its Board
of Directors would decide whether to accept the proposal.
4) LUANA KAI did not advertise, or solicit persons to
operate the activity desk. LUANA KAI claims that it did not offer
or otherwise make available to the general public an opportunity to
operate the activity desk.
III. STATUTORY FRAMEWORK:
Chapter 489, Discrimination in Public Accommodations, is
written in broad terms. H.R.S. 489-1 provides:
(a) The purpose of this chapter is to protect the
interests, rights, and privileges of all persons
within the State with regard to access and use of
public accommodations by prohibiting unfair
discrimination.
(b) This chapter shall be liberally construed to
further the purposes stated in subsection (a).
(Emphasis added.) A place of public accommodation is broadly
defined. H.R.S. 489-2 provides:
"Place of public accommodation" means a business,
accommodation, refreshment, entertainment, recreation, or
transportation facility of any kind whose goods,
services, facilities, privileges, advantages, or
accommodations are extended, offered, sold, or otherwise
made available to the general public as customers,
clients, or visitors. . . ."
(Emphasis added.) The definition sets forth twelve examples of
places of public accommodations and provides that the examples are
not limitations on the definition. H.R.S. 489-3 prohibits
discrimination in public accommodations and provides:
Unfair discriminatory practices which deny, or attempt to
deny, a person the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and
accommodations of a place of public accommodation on the
basis of race, sex, color, religion, ancestry, or
disability are prohibited.
IV. PLACES OF PUBLIC ACCOMMODATIONS:
LUANA KAI is a place of public accommodations. It rents
condominium units to the general public for lodging. Under the
definition of "place of public accommodations" in H.R.S. 489-
2(2), "[a]n inn, hotel, motel, or other establishment that provides
lodging to transient guests[]" is specifically listed as an example
of a place of public accommodations.
The tourist activity desk was also a place of public
accommodations under H.R.S. 489-1. It primarily served the
guests of the Luana Kai condominium. Its goods and services were
extended, offered, sold, and otherwise made available to the
general public because the guests of Luana Kai were members of the
general public. In addition, the activity desk falls within the
statutory example of "[a]n establishment that is physically located
within the premises of an establishment otherwise covered by this
definition, . . . and which holds itself out as serving patrons of
the covered establishment." H.R.S. 489-2(12).
The Examiner dismissed the Chapter 489 claim because LUANA KAI
was not a place of public accommodations with respect to allowing
DOE to operate the activity desk. The Examiner concluded that the
opportunity to operate the tourist activity desk did not meet the
"otherwise made available to the general public" portion of the
definition based upon LUANA KAI's claim that it did not advertise,
solicit, offer or otherwise make available to the general public an
opportunity to operate the activity desk. However, LUANA KAI
acknowledged in an affidavit that it accepted and considered
unsolicited proposals to operate the activity desk.
V. DISCUSSION
The Legislature has broadly defined "place of public
accommodations" to encompass "a business . . . facility of any kind
whose . . . privileges [and] advantages are extended, offered . .
. or otherwise made available to the general public as customers,
clients, or visitors." H.R.S. 489-2. Statutes which define a
place of public accommodations have done so in order "to depart
from the ordinary sense of the term. Thus, there is a presumption
that we are not to substitute the literal, ordinary meaning of
'place of public accommodation' for the definition that the
legislature has provided." United States Jaycees v. McClure, 305
N.W.2d 764, 766 (Minn. 1981) ("McClure").
The statutory definition in H.R.S. 489-2 is almost identical
to the Minnesota statute in McClure, id. In that case, the
Minnesota Supreme Court noted that
[w]hile the older statute concentrated on the kinds of
sites where discrimination would be prohibited, the new
statute focuses on conduct in which discrimination would
be prohibited and thus speaks not of a business facility
where goods and privileges are offered, but rather, of "a
business * * * facility of any kind * * * whose goods *
* * [and] privileges are * * * offered, sold, or
otherwise made available to the public."
(Quotation marks, emphases, and asterisks in original, and citation
omitted.) As in H.R.S. 489-1, the Minnesota statute, Minn. Stat.
363.12 (1980), required a liberal construction of the law. Thus,
the definition of place of public accommodations in H.R.S. 489-2
must be liberally construed to focus on the discriminatory conduct
prohibited in H.R.S. 489-3 which is the "den[ial], or attempt to
deny, a person the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of a place
of public accommodation."
The Examiner dismissed the Chapter 489 claim because LUANA KAI
did not meet the "extended, offered, sold, or otherwise made
available to the general public as customers, clients, or visitor"
portion of the definition. For the purpose of the decision, it was
assumed that the remainder of the definition was met. Order of
January 15, 1997, at 5. However, the Commission believes that
accepting unsolicited proposals from anyone in the general public
who wanted to operate the activity desk and considering such
proposals to determine if the applicant should be selected as the
operator falls within a liberal construction of the phrase
"otherwise make available to the general public as customers,
clients, or visitors." The "full and equal enjoyment" of operating
the tourist activity desk was determined by considering such
unsolicited proposals.
LUANA KAI contends that under Miss Greater New York City
Scholarship Pageant v. Miss New York Scholarship Pageant, 526
F.Supp. 806 (S.D. NY 1981), it is not a place of public
accommodations with respect to the activity desk. The case was
decided under the federal public accommodations law, 42 U.S.C.
2000a(b), which does not have a definition similar to H.R.S. 489-
2. State law is broader and more expansive than federal law. The
case does not deal with the issue of whether the opportunity to
operate a beauty pageant was otherwise made available to the
general public.
The Commission hereby declares that accepting and considering
unsolicited proposals submitted by members of the general public
falls within a liberal construction of the definition of "otherwise
mak[ing] available to the general public as customers, clients, or
visitors" the opportunity to operate the activity desk. However,
the Commission does not decide whether the other parts of the
definition of "place of public accommodations" have been met. The
Hearings Examiner will make additional findings on the matter as
part of the administrative hearing in Docket No. 96-006-PA-D.
The stay of proceedings is hereby dissolved and the
administrative hearing will proceed. The Commission hereby extends
the hearing deadline by the number of days that the stay was in
effect.
DATED: Honolulu, Hawaii
AMEFIL AGBAYANI
Chairperson
ALLICYN HIKIDA TASAKA
Commissioner
JACK LAW
Commissioner
FAYE KENNEDY
Commissioner
CLAUDIO SUYAT
Commissioner
