Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—Wash. Super.: Florist declines to arrange flowers for same-sex wedding, violates CPA, (Feb 19, 2015)

By Greg Hammond, J.D.

A florist violated the Washington Consumer Protection Act (CPA) by declining to arrange flowers for a same-sex wedding based on religious beliefs, declared the Benton County, Washington Superior Court. In addition to a per se violation of the CPA, the florist’s actions constituted a generic CPA violation, because treating customers differently due to their membership in a protected class is unfair as a matter of law; the events occurred in trade or commerce; and the practice of refusing to provide services to any future same-sex wedding has the capacity to injure other persons (Washington v. Arlene’s Flowers, Inc., February 18, 2015, Ekstrom, A.).

Background. Defendant Barronelle Stutzman is the owner and operator of Arlene’s Flowers, Inc., doing business as Arlene’s Flowers and Gifts. In February 2013, individual plaintiff Robert Ingersoll—an established customer of Arlene’s—inquired about having Stutzman arrange the flowers for his same-sex wedding to Curt Freed. Stutzman denied the request, citing her religious beliefs. Ingersoll and Freed filed suit against Stutzman and Arlene’s, alleging violations, in part, of the Washington Law Against Discrimination (WLAD) and the CPA. The Washington Attorney General’s office, after failed attempts to get Stutzman and Arlene’s to sign an Assurance of Discontinuance that the conduct at issue would not be repeated, also filed suit, alleging a violation of the CPA. The case was before the court on the defendants’ motions for partial summary judgment.

As a preliminary matter, the court determined that the plaintiffs had standing to bring their CPA claims, due to the defendants’ past actions and the potential for future violations.

Consumer protection. Under the WLAD, any act that directly or indirectly results in any distinction, restriction, or discrimination on the basis of sexual orientation, except for conditions and limitations established by law and applicable to all persons, constitutes an unfair practice. Because the defendants admitted in deposition testimony that Stutzman denied services to Ingersoll for religious reasons, the plaintiffs established their WLAD action. Further, because the violation was committed in the course of trade or commerce and caused injury to business or property, the WLAD violation constituted a per se violation of the CPA.

Although the Attorney General’s Office was entitled to summary judgment on its per se CPA claim, it additionally sought summary judgment on its alternative argument—a generic violation of the CPA. The court sided with the Attorney General, finding that the plaintiffs sufficiently demonstrated (1) an unfair or deceptive act or practice; (2) occurring in trade or commerce; and (3) public interest impact.

Specifically, the court concluded that the defendants’ treatment of Ingersoll because of his membership in a protected class is unfair as a matter of law, and that any other result would be inconsistent with Washington law. It was also uncontested that the events occurred in trade or commerce. Finally, the court concluded that there would be a public interest impact because Stutzman’s unwritten policy to refuse to provide services to any future same-sex wedding has the capacity to injure other persons.

Preemption. The CPA claim was also not preempted under the First Amendment to the United States Constitution, the court determined, noting that Stutzman “mixes the distinction between belief and conduct, clergy and laity, and the distinction between accommodation and public accommodation.” The defendant’s constitutional preemption arguments therefore failed as a matter of law.

The case number is 13-2-00871-5.

Attorneys: Todd Bowers, Attorney General Office, for the State of Washington. Jake Ewart (Hillis Clark Martin & Peterson, P.S.) for Robert Ingersoll and Curt Freed. Alicia Berry (Liebler, Connor, Berry & St. Hilaire, PS) and Kellie Fiedorek (Alliance Defending Freedom) for defendants.

Companies: Arlene’s Flowers, Inc.

Cases: ConsumerProtection WashingtonNews