petition for reconsideration in christopher penner case

8/20/2019 Petition for Reconsideration in Christopher Penner Case

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IN THE COURT OF APPEALS FOR THE STATE OF OREGON

BLACHANA, LLC, dba Twilight room

Annex aka The P Club, and Christopher

Penner,

Petitioners,

v.

OREGON BUREAU OF LABOR AND

INDUSTRIES,

Respondent.

)

)

)

)

)

)

)

)

)

Oregon Bureau of Labor and

Industries Case No. 25-13

Court of Appeals No. A155228

PETITIONERS' PETITION FOR RECONSIDERATION

Jonathan M. Radmacher, OSB #924314

McEWEN GISVOLD LLP

1100 SW Sixth Avenue, Suite 1600

Portland, Oregon 97204

Telephone: 503-226-7321

Facsimile: 503-243-2687

Email: [email protected]

Of Attorneys for

Petitioners

Denise G. Fjordbeck

Department of Justice

1162 Court Street NE

Salem, Oregon 97301

Telephone: 503-378-4402

Facsimile: 503-378-6306

Email: [email protected]

Of Attorneys for

Respondent

October 2015


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Petitioners (referred to by the Court and parties, and thus herein as

Respondents), request that the Court reconsider its decision of September 23, 2015,

in three respects: (1) that the Court reconsider its conclusion that Respondent did

not challenge a finding of fact, because the First Assignment of Error expressly and

implicitly challenged BOLI's reversal of the ALJ's credibility finding; (2) that the

Court reverse on the merits based upon that credibility finding; and (3) that the

Court reverse on the claim brought under ORS 659A.409, because a private

communication would not constitute publication of an intent to discriminate, as

that argument was articulated by the ALJ and reiterated on appeal.

1. The Court erred in finding that Appellant did not challenge

BOLI's findings of fact.

In stating that Respondents did not challenge the findings of fact, this Court

erred pursuant to ORAP 6.25(1)(a) and (b). This Court held that:

Because respondents do not challenge BOLI's findings of

fact, those findings are the facts for purposes of judicial

review.

273 Or App 806, 809.

Respondent's First Assignment of Error made just such a factual challenge:

The Agency erred in finding that Mr. Penner's request

that the T-Girls not come to the Bar on Friday nights any

longer was discrimination under ORS 659A.403, where

there was no finding that Mr. Penner intended to exclude

or refuse to serve any person or group on account of their

sexual orientation.

[Opening Brief at 10]

The Standard of Review identified that the assignment of error could include


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a substantial evidence evaluation of BOLI's findings:

The question of whether the statute requires a finding of

intentional discrimination, by finding an intent to refuse

or deny service, is a question of statutory interpretation,

which is reviewed de novo; if the Court finds that BOLI

has misinterpreted the law, it should set aside the order.

ORS 183.482(8)(a)(A). To the extent that the question

rests on any factual finding of the Agency, "The court

shall set aside or remand the order if the court finds that

the order is not supported by substantial evidence in the

record. Substantial evidence exists to support a finding of

fact when the record, viewed as a whole, would permit a

reasonable person to make that finding." ORS

183.482(8)©.

[Opening Brief at 11-12]

In Reply, Respondents further clarified their challenge to the Agency's effort

to change the Hearings Officer's finding of fact about Mr. Penner's credibility – the

person who heard Mr. Penner testify found that he was credible except for his

opining about the loss of business on Friday nights. That credibility finding, made

by the only person imbued with the power to make a credibility finding – the

person who took the testimony – was central to Respondents' First Assignment of

Error: BOLI had no factual basis for denying that Mr. Penner did not intend to

exclude anyone and did not intend to discriminate, regardless of the aggrieved

persons' subjective view on those subjects.

In making its argument, however, BOLI fails to note for

this Court that the person who observed Mr. Penner

testify did not make the factual finding about credibility

on which BOLI now relies. It was not the Hearings

Officer who made that finding relied upon by BOLI, but

Ms. Hammond, Mr. Avakian's deputy, who made a

credibility decision even though she did not observe the


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testimony. Far from insulating BOLI's ruling from

appeal, it should cast serious doubt on the legitimacy of

BOLI's decision and the administrative process that gave

rise to that decision – BOLI should be held to the

credibility decision made by the Administrative Law

Judge that BOLI assigned to hear the case.

[Reply Brief at 2]

The ALJ's finding that Mr. Penner was credible was reversed without basis

or justification by the Agency's Deputy, who was not the finder of fact who heard

Mr. Penner testify. BOLI's reversal of that finding was error, appropriately

challenged on review.

2. This Court should not give credence to the Complainant's

Deputy's changing of a credibility finding.

In the context of Respondents' factual challenge, supra, the Court erred in

finding that Mr. Penner intended to discriminate, i.e. once the factual issue about

credibility is taken into account, the Court is left with a finding that Mr. Penner did

not intend to discriminate when he left the voicemails, and so BOLI's decision

should be reversed on the First Assignment of Error.

The bench and bar understand the notion of trying to "bulletproof" a

decision from appeal. In particular, where the outcome depends upon a

determination of credibility, an appellate court will always defer to the credibility

finding of the person charged with hearing the testimony and assessing the witness'

demeanor, so that by making a credibility decision adverse to an appellant, the

finder of fact can essentially preclude any successful challenge. See, e.g., Larson

v. Trachsel, 282 Or 274, 250, 577 P2d 928 (1978) ("In such a case the trial judge,


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having had the opportunity to observe the demeanor of the witness, is in a much

better position than in this court to determine the credibility of the witnesses.") In

this case, the Court erred by adopting the Deputy Commissioner's finding of fact

on credibility, which changed the ALJ's finding of credibility.

The ALJ's finding about credibility was that Mr. Penner was credible except

with regard to his testimony about a loss of business on Friday nights, which the

ALJ found was exaggerated:

60) Chris Penner was a credible witness except for his

testimony that the P Club's business dropped "20 percent" on Friday nights while the T-Girls were in

attendance, as the revenue figures offered and received

into evidence by Respondents showed that Penner's

testimony was exaggerated.

[Proposed Order, ER-52] Implicit (if not express) in that finding is that Mr.

Penner's testimony in other respects was credible. Yet Mr. Avakian's Deputy, who

did not act as the ALJ who heard the testimony, tried to bulletproof her decision in

favor of the Commissioner, holding that his testimony was disingenuous:

60) Chris Penner's testimony was not credible in two

respects. First, his testimony that the P Club's business

dropped "20 percent" on Friday nights while the T-Girls

were in attendance was not borne out by revenue figures

offered and received into evidence by Respondents

showed that Penner's testimony was exaggerated.

Second, his testimony that his voicemail was only a

"request" and that the sexual orientation of the T-Girls

was not a factor in his request for them to not come back

on Fridays was disingenuous. The forum has only

credited his testimony when it was undisputed or

corroborated by other evidence.

[SER-27 to 28]


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Or to put it another way, to preserve his objections to the Proposed Findings

and Conclusions, Mr. Penner and Blachana, LLC provided objections, which noted

the credibility issue in his favor. BOLI's response was not to defer to that

credibility finding, but was to simply change the credibility finding. That's not a

finding of historical fact, but a factual issue uniquely decided by the person hearing

the testimony. Allowing BOLI to bulletproof a decision from appeal, with the

Deputy Commissioner finding in favor of the Commissioner, strips all sense of

fairness from the process, and should not be condoned by this Court.

3. The Court erred in failing to address the Second Assignment of

Error.

This Court erred in rejecting the Second Assignment of Error without

discussion, ORAP 6.25(1)(b), "because it is insufficiently developed for our

review." Blachana, LLC v. Oregon Bureau of Labor and Industries, 273 Or App

at 816. While that phrase has been used on a very few occasions in Oregon's

courts to dismiss assignments of error without discussion,1 the fact that

Respondents' Second Assignment of Error was straightforward should not be

construed as meaning that it was undeveloped.

First, Respondents' Second Assignment of Error tracked the decision of the

Administrative Law Judge, asking that this Court adopt the ALJ's rationale that

rejected BOLI's claim – Mr. Penner leaving a private voicemail should not be

construed as constituting the publication of a notice of an intent to discriminate.

1 See State v. Rogers, 352 Or 510, 513 n2, 288 P3d 544 (2012); Neidhart v. Page,

271 Or App 139, 141, 351 P3d 67 (2015).


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[ER-45-47] The ALJ made that application of fact to law after analyzing relevant

definitions of publish and notice, and on appeal Respondents adopted that

evaluation.

Second, Respondents expounded on the importance of giving independent

meaning to the notice provisions of ORS 659A.409, otherwise, any communication

that is found to constitute discrimination under ORS 659A.403 would

automatically constitute a violation of ORS 659A.409, thus not giving any

independent meaning or application to ORS 659A.409:

The Hearings Officer found that Mr. Penner's voice mails

were private, and that although he may have intended that

she might circulate them, he himself did not circulate

them. Nor, the Hearings Officer found, did Mr. Penner

publish or display any notice of an intent to discriminate.

Although the Deputy Commissioner found in favor of her

boss by reversing the Administrative Law Judge, this

Court should adopt the Administrative Law Judge's

concise and appropriate analysis.

Under BOLI's theory of interpretation, every

communication that might constitute actionable

discrimination under ORS 659A.403 would necessarily

constitute actionable discrimination under ORS

659A.409, an outcome that renders ORS 659A.409

duplicative of ORS 659A.403. Because each provision

of each statute should be given independent meaning (as

opposed to being interpreted as being duplicative),

BOLI's interpretation is unreasonable, and the ALJ's

interpretation is correct.

[Reply Brief at 8]

Conclusion

Respondents request that this Court reconsider its decision, as follows:


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1. Reversing BOLI's finding of no credibility, because the finder of fact

found Mr. Penner to be credible in every respect except for whether he exaggerated

claims about lost sales on Friday night. Implicitly, then, the Court would reverse

BOLI's finding of discrimination, because Mr. Penner was credible when he

testified that he did not intend to exclude the complainants.

2. Reversing the finding against Respondents under ORS 659A.409,

because the ALJ's analysis correctly concluded that Mr. Penner's private voice

mails did not constitute the publication of a notice that he intended to discriminate.

Respectfully submitted this 7th day of October, 2015.

MCEWEN GISVOLD LLP

By: s/ Jonathan M. Radmacher

Jonathan M. Radmacher, OSB No. 924314

Of Attorneys for Appellant


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806 September 23, 2015 No. 438

IN THE COURT OF APPEALS OF THESTATE OF OREGON

BLACHANA, LLC,dba Twilight Room Annex,

aka The P Club;and Christopher Penner,

Petitioners,

v.

OREGON BUREAU OFLABOR AND INDUSTRIES,

Respondent.

Oregon Bureau of Labor and Industries2513; A155228

Argued and submitted April 8, 2015, Madras HighSchool, Madras.

Jonathan M. Radmacher argued the cause for petition-ers. With him on the briefs was McEwen Gisvold LLP.

Leigh A. Salmon, Assistant Attorney General, arguedthe cause for respondent. With her on the brief were Ellen F.Rosenblum, Attorney General, and Anna M. Joyce, SolicitorGeneral.

Before Sercombe, Presiding Judge, and Hadlock, Judge,

and Tookey, Judge.TOOKEY, J.

Affirmed.

Case Summary: The Rose City T-Girls is an informal social group thatincludes straight people, married couples, nonmarried couples, males whoidentify as females, cross-dressers, males who have physically transitioned tofemales, lesbians, and gay males. Respondents, Blachana, LLC, and ChristopherPenner, own and manage a bar in North Portland formerly known as the P Club.

Respondents seek judicial review of an order of the Commissioner of the Bureauof Labor and Industries (BOLI) concluding that they denied equal accommoda-tions to the T-Girls at the P Club because of their sexual orientation, in violation


10/23

Cite as 273 Or App 806 (2015) 807

section 8, of the Oregon Constitution. Held: All of respondents’ arguments areunpreserved, undeveloped, or unavailing in light of BOLI’s factual findings.

Affirmed.


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808 Blachana, LLC v. BOLI

TOOKEY, J.

The Rose City T-Girls is an informal social group

that includes straight people, married couples, nonmarriedcouples, males who identify as females, cross-dressers, maleswho have physically transitioned to females, lesbians, andgay males. Respondents,1 Blachana, LLC, and ChristopherPenner, own and manage a bar in North Portland for-merly known as the P Club.2 Respondents seek judicialreview of an order of the Commissioner of the Bureau ofLabor and Industries (BOLI) concluding that they denied

equal accommodations to the T-Girls at the P Club becauseof their sexual orientation, in violation of ORS 659A.403,3 ORS 659A.406,4 and ORS 659A.409,5 when Penner left two

1 In accordance with our rule governing the designation of parties in briefs,ORAP 5.15, we refer to Blachana, LLC, and Penner as respondents because theywere respondents in the proceedings below. 2 Blachana, LLC, owns the P Club, later known as the Twilight Room Annex.Penner is a member of Blachana, LLC, and manages the P Club.

3 ORS 659A.403 provides: “(1) Except as provided in subsection (2) of this section [(which does notapply here)], all persons within the jurisdiction of this state are entitled tothe full and equal accommodations, advantages, facilities and privileges ofany place of public accommodation, without any distinction, discriminationor restriction on account of * * * sexual orientation[.]

“ * * * * *

“(3) It is an unlawful practice for any person to deny full and equalaccommodations, advantages, facilities and privileges of any place of publicaccommodation in violation of this section.”

BOLI has defined “sexual orientation” to mean

“an individual’s actual or perceived heterosexuality, homosexuality, bisexu-ality, or gender identity, regardless of whether the individual’s gender iden-tity, appearance, expression or behavior differs from that traditionally asso-ciated with the individual’s assigned sex at birth.”

OAR 839-005-003(16). That provision has been renumbered since the relevanttime; however, because its text remains the same, we cite the current version. 4 ORS 659A.406 provides, with an exception not relevant here, that

“it is an unlawful practice for any person to aid or abet any place of public

accommodation, as defined in ORS 659A.400, * * * to make any distinction,discrimination or restriction on account of * * * sexual orientation[.]” 5 ORS 659A 409 provides with exceptions not relevant here that


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Cite as 273 Or App 806 (2015) 809

voicemails for Cassandra Lynn, the founder of the T-Girls, inwhich he asked Lynn and the T-Girls not to come back to theP Club on Friday nights. Respondents challenge BOLI’s con-clusion that they violated ORS 659A.403 and ORS 659A.409and contend that BOLI’s order violated their rights under

Article I, section 8, of the Oregon Constitution.6 Because allof respondents’ arguments are unpreserved, undeveloped, orunavailing in light of BOLI’s factual findings, we affirm.

Because respondents do not challenge BOLI’s find-ings of fact, those findings are the facts for purposes of judi-

cial review. ORS 183.482(7) (“[T]he court shall not substi-tute its judgment for that of the agency as to any issue offact * * *.”); Meltebeke v. Bureau of Labor and Industries, 322Or 132, 134, 903 P2d 352 (1995). The T-Girls gather regu-larly on Friday nights. They began frequenting the P Clubon Friday nights around July 2010, when they were askednot to gather at another club where they had previously met.“Between September 2010 and January 2011, the T-Girlsgathered intermittently on Friday nights at the P Clubas they explored possible new Friday gathering spots. InJanuary 2011, the T-Girls decided to make the P Club their‘regular Friday nightspot.’ ” “From eight to 54 T-Girls gath-ered at the P Club every Friday night between January 2011and June 18, 2012.” As BOLI explained in the final order:

“On June 18, 2012, Penner telephoned C. Lynn and leftthe following voicemail message:

“ ‘Hello, my name is Chris, I’m the owner of the P ClubBar and Grill on North Lombard. Um, unfortunately, uhdue to circumstances beyond my control I am going to haveto ask for you, Cass, and your group not to come back onFriday nights. Um, I really don’t like having to do that butunfortunately it’s the area we’re in and it’s hurting busi-ness a lot. If you have any questions, please feel free to giveme a call * * *. Again I’m really sorry about having to dothis but yeah give me a call. Thanks, bye.’

place of public accommodation will be refused, withheld from or denied to, orthat any discrimination will be made against any person on account of * * *


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“In response to Penner’s voicemail, C. Lynn telephonedPenner and left a message asking what the ‘real reason’was for Penner’s request that the T-Girls not come back on

Friday nights.

“On June 21, Penner telephoned C. Lynn and left thefollowing voicemail message:

“ ‘Hello Cassandra, this is Chris from the P Club. Sorryit took me awhile to return your phone call. There is nounderlying reason for asking you folks not to come backother than money. Um, sales on Friday nights have beendeclining at the bar for the last 18 months. Uh, about a

year ago I was looking at asking you folks not to come inanymore and the girls said, “No, no, no don’t,” so I gave it awhile longer. Um, I own another bar in north Portland; salesare doing great on Fridays, and so I’ve done some investi-gating as to why my sales are declining and there’s twothings I keep hearing: People think that (a) we’re a trannybar or (b) that we’re a gay bar. We are neither. People arenot coming in because they just don’t want to be there ona Friday night now. In the beginning sales were doing finebut they’ve been on a steady decrease so I have to look atwhat the problem is, what the reason is, and take care of it;that’s my job as the owner. So unfortunately, I have to dowhat I have to do and that is the only reason. It’s all aboutmoney. So I’ll be back in town tonight; if you want to giveme a call I should be answering my phone; I’ve been out oftown for the past few days. So, there we are, take care. Byebye.’

“C. Lynn understood Penner’s voicemails to mean thatthe P Club ‘wasn’t a tranny bar’ and ‘we’re not allowed inthere.’

“None of the aggrieved persons[, who are all members ofthe T-Girls,] visited the P Club after June 18, 2012.”

(Paragraph numbers, footnotes, and citations omitted.)“After C. Lynn received the voicemails, she posted a noteon the T-Girls’ website stating that Penner had asked the

T-Girls not to come back to the P Club. Subsequently, sheposted a transcription of the voicemails, [and] then the


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Cite as 273 Or App 806 (2015) 811

T-Girls’ website, and did not return to the P Club because ofthe voicemails.

On November 18, 2011, after the commissioner fileda complaint against respondents and BOLI’s Civil RightsUnit found substantial evidence to support the complaint,BOLI formally charged both respondents with violatingORS 659A.403(3) and ORS 659A.409, and also chargedPenner with violating ORS 659A.406 by aiding and abet-ting Blachana. BOLI sought damages of “at least $50,000”for each of the aggrieved persons and a civil penalty of

$1,000 per violation against each respondent. After resolv-ing discovery disputes that are not relevant to this appeal,an administrative law judge (ALJ) employed by BOLI heardthe case in May 2013.

Because our resolution of respondents’ contentionson review turns on their arguments before BOLI, we explainthose arguments in some detail. Before doing so, however,we provide some background on the Supreme Court’s inter-

pretation of Article I, section 8.

In State v. Robertson, 293 Or 402, 649 P2d 569(1982), the Supreme Court established three categories foranalyzing a law under Article I, section 8. The court recentlysummarized those categories as follows:

“Under the first category, the court begins by determiningwhether a law is written in terms directed to the substance

of any opinion or any subject of communication. If it is,then the law is unconstitutional, unless the scope of therestraint is wholly confined within some historical excep-tion that was well established when the first Americanguarantees of freedom of expression were adopted andthat the guarantees then or in 1859 demonstrably were notintended to reach. If the law survives that inquiry, thenthe court determines whether the law focuses on forbiddeneffects and the proscribed means of causing those effects

include speech or writing, or whether it is directed onlyagainst causing the forbidden effects. If the law focuseson forbidden effects and the proscribed means of causing


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other hand, the law focuses only on forbidden effects, thenthe law is in the third Robertson category, and an individ-ual can challenge the law as applied to that individual’s

circumstances.”

State v. Babson, 355 Or 383, 391, 326 P3d 559 (2014) (cita-tions, internal quotation marks, and brackets omitted).

We return to respondents’ arguments before BOLI.In their answer to the formal charges, respondents asserteda constitutional affirmative defense based on Article I, sec-tion 8. In their case summary, submitted before the hearing,

they argued that they “have a right under Article I, section8, of the Oregon Constitution to ‘speak freely * * * on anysubject whatever.’ Application of ORS 659A.400, et seq, inthis case, violates Respondents’ rights thereunder.”7

The ALJ allowed the parties to submit memo-randa on that defense after the hearing. In its memoran-dum, BOLI argued that, under the Robertson framework,ORS 659A.403 is directed against causing forbidden effects

rather than expressly or obviously proscribing expres-sion, that is, that the statute does not fall into the first

Robertson category. Furthermore, BOLI asserted, becausethe provision does not mention speech, it falls into the third

Robertson category and, accordingly, is not subject to facialchallenges. BOLI further contended that ORS 659A.403was not unconstitutional as applied to respondents becauserespondents were being punished only “because [respon-

dents] committed the proscribed act of affirmatively barringthe T-Girls from the club on the basis of their sexual orien-tation.” BOLI explained that respondents’ argument—thatthey were being sanctioned based on the content of Penner’sspeech—“misconstrues the distinction between the contentof speech impermissibly forming an element of an offense,

7 Respondents supported that text with the following citations:

“ State v. Johnson, 345 Or 190, 191 P3d 665 (2008) (striking down statute

that restrained ‘abusive speech’); State v. Ciancanelli, 339 Or 282, 121 P3d613 (2005) (striking down statutes that restrained nude dancing); State v.R b t 293 O 402 649 P2d 569 (1982) ( t iki d ti i

http://www.publications.ojd.state.or.us/docs/S060455.pdfhttp://www.publications.ojd.state.or.us/docs/S055085.htmhttp://www.publications.ojd.state.or.us/docs/S49707.htmhttp://www.publications.ojd.state.or.us/docs/S49707.htmhttp://www.publications.ojd.state.or.us/docs/S055085.htmhttp://www.publications.ojd.state.or.us/docs/S060455.pdf


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Cite as 273 Or App 806 (2015) 813

and using the content of speech to prove an element of anoffense. The former may be unconstitutional, the latter isnot. See State v. Plowman, 314 Or 157, 167, [838 P2d 558(1992)].”

In their response, respondents asserted that they“had a right to express their desire—motivated by busi-ness interest—that the Rose City T-Girls no longer meet atRespondents’ place of business on Friday nights.” Ratherthan addressing ORS 659A.403, 659A.406, or 659A.409under the Robertson framework, they argued that Penner’s

voicemail messages were less serious than the types ofspeech—including threats and demands—that were pro-hibited under the coercion statute at issue in Robertson.Respondents contended:

“It cannot be disputed that Respondents did not demandanything. It cannot be disputed that Respondents did notthreaten anything. And while some of the witnesses testi-fied that they interpreted those words as a denial of ser-

vice, it clearly was not a denial of service—no one cameand attempted to be served. The refusal to return toRespondents’ place of business, as the witnesses describedit, was due to their anger at Respondents.

“Or to put it a different way, Respondents did not refuseto provide service to anyone. Respondents’ request thatthe group not return amounted to the free expression ofRespondents’ desire that the group stop coming on Fridaynights. Respondents had a constitutional right to expressthat desire. Unless or until Respondents refused service—they did not and would not have—Respondents’ statementscannot be used to punish them, as the Commissioner seeksto do.”

(Underscoring in original.)

In its reply, BOLI argued that respondents hadmisunderstood the holding of Robertson—specifically, it

contended that Robertson “is directed toward statutory con-struction and facial challenges to laws, not to what typesf h f h b i f d


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case. Respondents claim that the voice messages were onlyan ‘expression of desire.’ The Agency claims that the voicemessages were denials of service. A denial of service may

be sanctioned under ORS 659A; an ‘expression of desire’likely would not be. Sanctioning a denial of service is con-stitutional; sanctioning an ‘expression of desire’ is gener-ally not. If a fact finder rules in favor of the Agency that, asa matter of fact, the voice messages were denials of service,ORS 659A may be constitutionally enforced. If a fact finderrules in favor of Respondents that the voice messages werenot denials of service, then ORS 659A may not be appliedto the case and, therefore, there can be no constitutional

issue.

“In short, if the facts are as Respondents say they are,it would be unconstitutional for the state to take adverseaction against Respondents. The Agency agrees withRespondents on that point. However, the agency points outthat ORS 659A could not (by its own terms) be applied tothis case if the facts are as Respondents claim they are.The constitutional issues raised by Respondents only serve

to outline the contours of ORS 659A’s application and toframe the factual determination upon which this matteractually hinges.”

The ALJ issued a proposed order in which it con-cluded that respondents had violated ORS 659A.403 andORS 659A.406, but not ORS 659A.409. Both parties submit-ted objections.

BOLI then issued a final order in which it con-

cluded that respondents had violated ORS 659A.403, ORS659A.406, and ORS 659A.409. It found that “[a]ll of theaggrieved persons listened to the voicemails and understoodPenner’s voicemails to be a message that the T-Girls werenot welcome in the P Club any night of the week becausePenner thought their presence was causing customers to per-ceive the P Club as a ‘tranny’ club or gay bar.” It also noted,“[T]he forum interprets Penner’s request for the T-Girls

‘not to come back’ on Friday nights as a statement that theywere not welcome at the P Club on Friday nights, the same


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Cite as 273 Or App 806 (2015) 815

Contrary to respondents’ arguments, BOLI concluded thatthe aggrieved persons were not required to visit the P Cluband request to be served in order to be denied equal accom-modations. Rather, Penner’s statements, which meant thatthe aggrieved persons were not welcome at the P Club onFriday nights, constituted a denial in themselves. BOLI alsoconcluded that the denial was “ ‘on account’ of the T-Girls’sexual orientation.”

As to ORS 659A.409, BOLI concluded that Pennerhad “issue[d]” a “notice” and “communication” by leaving

the voicemails for Lynn. It noted that, although BOLI hasbeen delegated statutory authority to define those terms byrule, it has not done so. After considering dictionary defi-nitions, it concluded that respondents had violated ORS659A.409.

Finally, BOLI concluded that respondents’ Article I,section 8, defense was conditional—that is, respondentsintended to assert that ORS 659A.403, ORS 659A.406, and

ORS 659A.409 were unconstitutional only if the voicemailswere merely requests and not a denial of service:

“In their post-hearing brief, Respondents make it clear thatthis defense is based on their contention that Respondentsonly made a ‘request’ that the T-Girls not return, thatRespondents never refused to provide or denied serviceto the T-Girls, and that to punish Respondents for mak-ing a ‘request’ violates Respondents’ constitutional free

speech rights. In contrast, the forum has concluded thatRespondents’ ‘request’ was not just Penner freely speakinghis mind, but an actual denial of service. Respondents donot contend that the constitution protects them from actu-ally denying service. Under these circumstances, neitherthe state nor [f]ederal constitutions protect Respondents’actions that the forum has found to violate ORS 659A.403,ORS 659A.406, and ORS 659A.409.”

BOLI ordered respondents to pay damages of $400,000 tothe 11 aggrieved persons and imposed $3,000 in civil pen-lti Bl h LLC d $2 000 i i il lti


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183.482(8)(a), (b)(C) (setting out standards of review for acontested case proceeding for erroneous interpretation of aprovision of law and for impermissible exercise of discretionin violation of constitution); Meltebeke, 322 Or at 138-39.Below, we discuss, and ultimately reject, their first and thirdassignments of error. We reject their second assignment oferror without further discussion because it is insufficientlydeveloped for our review.

In their first assignment of error, respondents assertthat BOLI erred in “finding that Mr. Penner’s request that

the T-Girls not come to the Bar on Friday nights any longerwas discrimination under ORS 659A.403, where there wasno finding that Mr. Penner intended to exclude or refuse toserve any person or group on account of their sexual orien-tation.” Respondents do not dispute that Penner’s conductwas “on account of” the T-Girls’ sexual orientation. Rather,they contend that BOLI failed to make an explicit findingthat Penner “intended to exclude the T-Girls, or otherwisesuggest that he would refuse them service” and that, in theabsence of an intention to deny service, respondents did not

violate ORS 659A.403.

We reject that argument because, as noted above,BOLI expressly interpreted “Penner’s request for the T-Girls‘not to come back’ on Friday nights as a statement that theywere not welcome at the P Club on Friday nights.” In otherwords, BOLI found that Penner communicated his intention

to exclude the T-Girls on Friday nights by telling them thatthey were not welcome—that is, by telling them that theywould not be allowed to meet at the P Club on Friday nightsbecause of their sexual orientation.8 BOLI’s interpretationof Penner’s statement necessarily includes a finding thatPenner intended to exclude the T-Girls from the P Club onFriday nights. Given that factual finding, by which we arebound, ORS 183.482(7); Meltebeke, 322 Or at 134, respon-dents’ argument is unavailing.

We turn to respondents’ third assignment of error,


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Cite as 273 Or App 806 (2015) 817

section 8, they “had a right to express their desire to the RoseCity T-Girls, that the association no longer use Respondents’place of business as their Friday night gathering place.”Respondents first assert that ORS 659A.403 and ORS659A.409 fall in the first Robertson category because theyare “both directed at the substance of a defendant’s commu-nication.” Second, they assert that those provisions are over-broad if they fall in the second Robertson category. Third,they argue that, in any event, under the third Robertsoncategory, the provisions are unconstitutional as applied torespondents.

We reject respondents’ facial challenge—their firstand second assertions—without extended discussion. Asexplained above, before BOLI, respondents did not advanceany argument under the Robertson framework. Moreover,on judicial review, in arguing that ORS 659A.403 and ORS659A.409 fall in the first or second Robertson categories,respondents still do not cite or discuss the text of thoseprovisions; instead, they contend that the purpose of thisenforcement action was to punish respondents for Penner’suse of the terms “tranny bar” and “gay bar” rather than for adenial of service. That contention does not address the ques-tions that inform a determination of whether a statute fallswithin either of the two first Robertson categories: whetherthe “terms” of the provision are “directed at the substance”of a communication or whether the law proscribes “speech orwriting.” Babson, 355 Or at 391. Rather, respondents’ argu-

ment, which focuses not on statutory text but on its applica-tion to a set of factual circumstances, informs the Robertson “category three” analysis.

We turn to that “category three” question, that is,respondents’ as-applied challenge to BOLI’s enforcement ofthe statutes against respondents in these circumstances.In that challenge, respondents argue that BOLI’s applica-tion of ORS 659A.403 and ORS 659A.409 to Penner’s con-duct is unconstitutional here because the focus of the casewas Penner’s speech They point out that “[t]he ‘forbidden


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That argument is unavailing given BOLI’s factualfindings and legal conclusion. As noted above, BOLI deter-mined that “[r]espondents’ ‘request’ was not just Pennerfreely speaking his mind, but an actual denial of service.”

As we understand it, that statement includes a finding that,through the voicemails, Penner was not just stating his opin-ion, but was actually informing the T-Girls that they wouldnot be served if they came to the P Club on Friday nights.That finding is supported by substantial evidence. See ORS183.482(8)(c) (appellate court shall set aside or remand anorder that “is not supported by substantial evidence in the

record”); ORS 183.482(7) (“[T]he court shall not substitute its judgment for that of the agency as to any issue of fact * * *.”).BOLI was not required to believe Penner’s testimony that the

voicemails were not intended to, and therefore did not, com-municate that the T-Girls would not be served if they came tothe P Club on a Friday night. Rather, it could—and did—findthat the voicemails expressed that the T-Girls would not beserved if they came to the P Club on a Friday night.

We turn to BOLI’s legal conclusion. We agree withrespondents that the “forbidden effect” at issue here is adenial of full and equal accommodations—in this case, adenial of service. See ORS 659A.403. BOLI concluded thatPenner’s speech itself constituted that forbidden effect: WhenPenner left the voicemails for Lynn, he was verbally barringher and the T-Girls from the P Club on Friday nights.

As noted above, respondents assert that “the evi-dence [that the T-Girls were denied service] was scant, atbest,” and they place significance on the fact that the T-Girlsdid not return to the P Club after hearing the voicemails.But, as noted above, BOLI concluded that Penner’s speech—the voicemails themselves—constituted the forbidden denialof service. That is, the denial of service was complete whenPenner left the voicemails. In light of that legal conclusion,

to which respondents raise no preserved challenge, the factthat none of the T-Girls returned to the club after hear-i th th t i ft th d i l f i t k


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Cite as 273 Or App 806 (2015) 819

error and reject them as unpreserved, not adequately devel-oped for our consideration, or both.

Affirmed.


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CERTIFICATE OF FILING AND SERVICE

I hereby certify that I served the foregoing APPELLANT'S PETITION

FOR RECONSIDERATION on October 7, 2015,

by e-filing the same with the

Oregon Court of Appeals thru

OJIN OnLine Services at

1163 State Street

Salem, Oregon 97301-2563

I further certify that I served the within APPELLANT'S PETITION FOR

RECONSIDERATION on October 7, 2015, on the parties listed below by e-filing

a true copy thereof to the attorney at the electronic mail address of record to the

following address:

Denise G. Fjordbeck

Department of Justice

1162 Court Street NE

Salem, Oregon 97301Email: [email protected]

MCEWEN GISVOLD LLP

By: s/ Jonathan M. Radmacher

Jonathan M. Radmacher, OSB No. 924314

Of Attorneys for Appellant

petition for reconsideration in christopher penner case

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