FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO.
A. Luiz James Hochberg for Defendant-Appellant.
P. Infranco Joseph E. La Rue (Alliance Defending Freedom) for
Handlin Linsay N. McAneeley (Carlsmith Ball LLP) Peter C.
Renn (Lambda Legal Defense and Education Fund, Inc.) For
Wurtzel Shirley Naomi Garcia April L. Wilson-South
(Hawai'i Civil Rights Commission) for
NAKAMURA, CHIEF JUDGE, and FUJISE and REIFURTH, JJ.
Aloha Bed & Breakfast (Aloha B&B) is owned and
operated by Phyllis Young (Young) as a sole proprietorship.
Aloha B&B provides lodging to transient guests, averaging
between one hundred and two hundred customers per year.
Plaintiffs-Appellees Diane Cervelli (Cervelli) and Taeko
Bufford (Bufford) (collectively, Plaintiffs), lesbian women
in a committed relationship, planned a trip to Hawai'i
and sought lodging with Aloha B&B. Aloha B&B and
Young refused to accommodate Plaintiffs' request for
lodging based solely on their sexual orientation.
filed a Complaint in the Circuit Court of the First Circuit
(Circuit Court) against Aloha B&B, alleging
discriminatory denial of public accommodations in violation
of Hawaii Revised Statutes (HRS) Chapter 489. The Hawai'i Civil
Rights Commission (HCRC) intervened in the case as a
plaintiff, after it had determined that there was reasonable
cause to believe that unlawful discriminatory practices had
and the HCRC filed a partial motion for summary judgment on
the issues of liability and injunctive relief, and Aloha
B&B filed a competing cross-motion for summary judgment.
The Circuit Court granted Plaintiffs and the HCRC's
motion and denied Aloha B&B's motion. The Circuit
Court ruled that Aloha B&B violated HRS § 489-3 by
discriminating against the Plaintiffs on the basis of their
sexual orientation. The Circuit Court also enjoined Aloha
B&B from "engaging in any practices that operate to
discriminate against same-sex couples as customers."
appeal, Aloha B&B argues that the Circuit Court erred in
ruling that it is liable for discriminatory practices under
HRS Chapter 489. Aloha B&B maintains that because Aloha
B&B operates its business out of Young's residence,
the Circuit Court should have applied an exemption from
prohibited discriminatory practices in real property
transactions set forth in HRS Chapter 515 for the rental of
rooms by a resident. Alternatively, Aloha B&B argues that
the application of HRS Chapter 489 to prohibit discriminatory
practices under the circumstances of this case would violate
Young's constitutional rights. Based on these arguments,
Aloha B&B contends that the Circuit Court erred in
granting Plaintiffs and the HCRC's motion for partial
summary judgment and in denying Aloha B&B's motion
for summary judgment. We affirm.
B&B operates out of a four bedroom home in the
Mariner's Ridge section of Hawai'i Kai, where Young
and her husband reside. Young operates Aloha B&B as a
sole proprietorship and offers three rooms in her residence
to guests for overnight lodging. Rooms at Aloha B&B are
offered at a nightly rate of $80 to $100, and there is a
three-night minimum booking requirement. In addition to the
nightly rate, Aloha B&B charges and collects general
excise taxes from its customers as well as transient
accommodation taxes, which only providers of transient
accommodations are required to pay. Aloha B&B remits
these taxes to the State of Hawai'i.
B&B does not offer rooms to customers for use as a
permanent residence, and Young never describes herself as a
landlord to her guests. Aloha B&B averages one hundred to
two hundred customers per year. The median length of stay for
Aloha B&B customers is four to five days. The majority of
customers stay for less than a week, about 95 percent or more
stay for less than two weeks, and more than 99 percent stay
for less than a month. In addition to overnight lodging,
customers at Aloha B&B are provided breakfast, pool
access, wireless internet access, and other amenities. Almost
all of Aloha B&B customers, an estimated 99 percent, are
travelers who do not live in Hawai'i.
B&B advertises its services to the general public through
its own website as well as through multiple third-party
websites. Aloha B&B's website, freely accessible
through the internet, provides a phone number and email
address for potential customers to contact Aloha B&B, and
it contains graphics stating "Best Choice Hawaii
Hotel" and "Best Choice Oahu Hotels." Aloha
B&B also advertises through various
bed-and-breakfast-related websites to generate more business
for itself, including paying an annual fee of between $400 to
$500 to BedandBreakfast.com.
Cervelli and Bufford, two lesbian women in a committed
relationship, began planning a trip to Hawai'i to visit a
friend. Plaintiffs, who resided in California, wanted to stay
near their friend, who lived in Hawai'i Kai. Cervelli
emailed Aloha B&B to inquire if a room was available for
their planned trip. Young responded by email the same day,
stating that a room was available for six days and providing
instructions on how to complete the reservation.
weeks later, Cervelli called Aloha B&B to book the
reservation and spoke with Young, who indicated that the room
was still available. While Young was writing up the
reservation, Cervelli mentioned that she would be accompanied
by another woman named "Taeko." Young stopped and
asked whether Cervelli and her companion were lesbians. When
Cervelli said "yes, " Young responded,
"[W]e're strong Christians. I'm very
uncomfortable in accepting the reservation from you."
Young refused to accept the reservation from Cervelli and
terminated the phone call by hanging up.
called Bufford in tears and explained what had happened.
Bufford then called Young and attempted to reserve a room,
but Young again refused to accept the reservation. Bufford
asked Young if her refusal was because Bufford and Cervelli
were lesbians, to which Young responded "yes."
Bufford had two phone conversations with Young that day.
Young referred to her religious beliefs in discussing her
refusal to provide a room to Plaintiffs. Apart from
Plaintiffs' sexual orientation, there was no other reason
for Young's refusal to accept Plaintiffs' request for
and Bufford each filed a complaint against Aloha B&B with
the HCRC alleging discrimination in public accommodations on
the basis of sexual orientation. Young was interviewed during
the HCRC's investigation and was asked to describe the
religious beliefs that she claimed precluded her from
accepting Cervelli and Bufford's reservation. Young
stated that she is Catholic; that she believes that
homosexuality is wrong; that she believes that sexual
relations between same-sex couples (regardless of whether
they are legally married) are immoral; and that she therefore
refused to provide Cervelli and Bufford with a room. The HCRC
found that there was reasonable cause to believe that Aloha
B&B had committed an unlawful discriminatory practice
against Cervelli and Bufford in violation of HRS §
489-3. The HCRC subsequently closed its cases based on
Cervelli's and Bufford's election to pursue a court
action, and it issued "right to sue" notices to
Cervelli and Bufford.
subsequently filed in the Circuit Court a Complaint for
injunctive relief, declaratory relief, and damages against
Aloha B&B, alleging discrimination on the basis of sexual
orientation in violation of HRS Chapter 489. The HCRC filed a
motion to intervene in the case as a plaintiff because it
found the case was one of "general importance"
given the HCRC's mission to eliminate discrimination. The
Circuit Court granted the HCRC's motion to intervene as a
and the HCRC filed a motion for partial summary judgment with
respect to liability and injunctive relief. Aloha B&B filed a
cross-motion for summary judgment.
Circuit Court held a hearing on the parties' competing
motions for summary judgment. At the hearing, counsel for
Aloha B&B acknowledged that "discrimination is a
horrible evil" and that "in places of public
accommodation discrimination is a horrible evil." Aloha
B&B's counsel also acknowledged that Aloha B&B
admits that it "does provide lodging to transient
However, Aloha B&B's counsel argued that the law
prohibiting discrimination in public accommodations, HRS
Chapter 489, does not apply to Aloha B&B because it uses
Young's residence to provide lodging to transient guests.
Aloha B&B's counsel argued that Aloha B&B's
use of a residence means that it is not a "place of
public accommodation" subject to the requirements of
Chapter 489, but instead is governed by HRS Chapter 515.
Circuit Court granted Plaintiffs and the HCRC's motion
for partial summary judgment with respect to liability and
declaratory and injunctive relief, and it denied Aloha
B&B's cross-motion for summary judgment as moot. In
its Summary Judgment Order,  the Circuit Court found that:
[Aloha B&B] is governed by Chapter 489, HRS, not Chapter
515, HRS, and [Aloha B&B] constitutes a place of public
accommodation under HRS § 489-2, because its goods,
services, facilities, privileges, advantages, or
accommodations are extended, offered, sold, or otherwise made
available to the general public as customers, clients, or
visitors. [Aloha B&B] also constitutes "[a]n inn,
hotel, motel, or other establishment that provides lodging to
transient guests" and " [a] facility providing
services relating to travel or transportation." HRS
§ 489-2. [Aloha B&B] violated HRS § 489-3 by
discriminating against Plaintiffs Diane Cervelli and Taeko
Bufford on the basis of their sexual orientation as lesbians.
(Certain brackets in original.) The Circuit Court enjoined
and prohibited "Defendant Aloha Bed & Breakfast, a
Hawai'i sole proprietorship of Phyllis Young, " and
its officers, agents, and employees "from engaging in
any practices that operate to discriminate against same-sex
couples as customers of Aloha Bed & Breakfast[.]"
Circuit Court entered its Summary Judgment Order on April 15,
2013. The parties subsequently submitted a stipulated
application to file an interlocutory appeal from the Summary
Judgment Order, which the Circuit Court granted.
B&B argues that the Circuit Court erred in ruling that it
is liable for discriminatory practices under HRS Chapter 489.
Aloha B&B argues that it is not subject to HRS Chapter
489, but that its activities are governed by HRS Chapter 515.
In particular, Aloha B&B asserts that an exemption from
prohibited discriminatory practices in real property
transactions set forth in HRS § 515-4(a)(2) protects it
from liability in this case.
and the HCRC, on the other hand, argue that Aloha B&B is
clearly a place of public accommodation that is subject to
HRS Chapter 489. Plaintiffs and the HCRC argue that Aloha
B&B cannot "borrow" an exemption applicable to
a different law (HRS Chapter 515) to avoid liability for
violating the public accommodations law (HRS Chapter 489) on
which Plaintiffs seek relief. They also argue that the HRS
Chapter 515 exemption relied upon by Aloha B&B only
applies to long-term living arrangements in which tenants are
seeking permanent housing, and not to the short-term
transient lodging provided by Aloha B&B to its customers.
explained below, we conclude that the Circuit Court properly
granted partial summary judgment in favor of Plaintiffs and
statutory provisions relevant to this appeal are as follows.
Complaint against Aloha B&B alleged discrimination on the
basis of sexual orientation in public accommodations, in
violation of HRS Chapter 489. HRS § 489-3 provides:
Unfair discriminatory practices that 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, including gender identity or expression,
sexual orientation, color, religion, ancestry, or disability
§ 489-2 (2008) defines the terms "place of public
accommodation" and "sexual orientation" for
purposes of HRS Chapter 489, in relevant part, as follows:
"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. By way of
example, but not of ...