Author name: jsinger

Washington Supreme Court reaffirms its finding of sexual orientation discrimination by florist

/ Antidiscrimination Law, Sexual Orientation

On remand in light of the Supreme Court ruling in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,  the Washington Supreme Court unanimously reaffirmed its ruling in State v. Arelene’s Flowers, 389 P.3d 543 (Wash 2017), as modified by 2017 Wash. LEXIS 222 (Wash. 2017). Lambda Legal, A key victory reaffirming LGTBT rights in flower shop discrimination case, June 6, 2019. See also CNN Politics, Washington state Supreme Court ruling in Arlene’s Flowers case,  June 6, 2019. In its opinion in State of Washington v. Arlene’s Flowers, Inc., (Wash. 2019), the Washington Supreme Court found that the case was tainted by none of the antireligious views the Supreme Court had found in Masterpiece Cakeshop and that the opinion in that case had affirmed that states can prohibit sexual orientation discrimination in public accommodations and that owners of such establishments cannot evade them by citing religious convictions. The court also reaffirmed its initial ruling that the refusal to provide flowers for a wedding of a same-sex couple […]

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Wedding planning website cannot refuse to serve same-sex couples

/ Antidiscrimination Law, Sexual Orientation

A Web-based graphic design company that intends to design custom websites for customers planning weddings sought to place a statement explaining the owner’s intent not to serve same-sex couples. A federal court has held that this violates the state’s public accommodations law because it constitutes discrimination on the basis of sexual orientation. 303 Creative LLC v. Elenis, 2019 WL 2161666 (D.Colo. 2019). Lorie Smith claimed she was not discriminating on the basis of sexual orientation but on the basis of her religous beliefs that do not recognize same sex marriage. The court rejected this argument and held that denying her the ability to post this statement did not violate her constitutionally-protected free speech rights since government power to prohibit discrimination necessarily includes the power to regulate speech that indicates an intent to engage in discrimination. The court also held that Employment Division v. Smith precluded her claim since the antidiscrimination law was a neutral law

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“Condition” language creates executory interest, but new executory interests banned unless held by public or charitable entities

/ Estates and Future Interests

n White v. Auger,2019 N.H. LEXIS 4 (N.H. 2019), the grantor conveyed property to a grantee “on condition that” the grantee build on it (or on adjacent land) and live there (within 10 years) created a fee simple subject to executory limitation. State statutes abolished possibilities of reverter, rights of entry, and executory limitations unless the grantee is a public or charitable organization but that law did not apply retroactively. N.H. Rev. Stat. 477:3-b. Older future interests could continue if they were re-recorded as required by the statute.

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Easement by necessity extinguished by marketable title act

/ Easements, Servitudes, Title Issues

Vermont’s marketable title act, Vt. Stat. tit. 27, §604(a), allows preservation of claims established more than forty years ago if they are re-recorded but does not require easements to be re-recorded if they are visible or evidenced by a “recorded agreement.” In Gray v. Treder, 2018 VT 137, 2018 Vt. LEXIS 237 (Vt. 2018), the Vermont Supreme Court held that easements by necessity fit into neither of those categories and thus need to be re-recorded every forty years to preserve them. While the case resulted in a landlocked parcel, the Court found the statutory policies of clearing title to be more important than ensuring access to a landlocked parcel.

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New York landmarks commission approves electrifying historic clock and denying public access to the clock tower

/ Historic Preservation Law

In Save America’s Clocks, Inc. v. City of New York, 2019 WL 1385906 (N.Y. 2019), the New York Court of Appeals overturned lower court rulings that invalidated a decision of the local historic landmarks commission to allow changes to a clock that had been designated a historic landmark both as part of an historic buliding and in its own right. The buyer of the building proposed to privatize the room on the interior of the building and deny public access to the back of the clock while converting the mechanical clock to be powered by electricity while preserving the mechanical structures. The commission allowed the changes because the exterior face of the clock would remain unchanged. The trial court and the Appellate Division ruled this decision to be irrational but the high court reversed those decisions, finding them to be within the statutory authority granted the commission.

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Discovery rule tolls statute of limitations for enforcing a right of first refusal

/ Estates and Future Interests, Real Estate Transactions, Restraints on Alienation

The Texas Supreme Court held that the owner of a right of first refusal was not too late in asserting it because the statute of limitations did not start running until the owner knew or reasonably could have known that the right had been triggered. Carl M. Archer Trust No. Three v. Tregallas,566 S.W.3d 281 (Tex. 2018). The sellers of a surface estate granted the buyer a right of first refusal to purchase the mineral estate within 60 days after being given notice of an intent to sell those rights. The right of first refusal was recorded. Without giving such notice, the owner of the mineral estate sold that estate to a third party in 2007. Four years later (and outside the statute of limitations), the owner of the right of first refusal found out about the conveyance of the mineral estate and immediately sued to nullify it. The statute of

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Landlords in Virginia have no duty to maintain in a safe condition premises under the tenant’s exclusive control

/ Leaseholds

Most states find landlords liable to tenants injured in leased premises if the landlord acted negligently. That rule impose a duty on the landlord to act reasonably to avoid dangerous conditions in the premises that are leased. State housing codes and the implied warranty of habitability also place duties of repair and maintenance on landlords whose breach can result in tort liability to the tenant if the landlord acted unreasonably and cause an unreasonable risk of harm. The Virginia Supreme Court however, held that state statutes that impose maintenance obligations on landlords did not intend to alter the common law immunity landlords previously enjoyed from negligence claims by tenants. Isbell v. Commercial Inv. Assocs., Inc., 644 S.E.2d 72 (Va. 2007). In contrast, innkeepers do have such duties since they have greater access to and control over the premises.

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Websites held to be public accommodations under the Americans with Disabilities Act and must be made accessible through screen reading technology

/ Antidiscrimination Law

The Ninth Circuit held that websites are public accommodations within the meaning of the Americans with Disabilities Act, 42 U.S.C. §12101, (and the California Unruh Civil Rights Act, Cal. Civ. Code §51) and must be made accessible to blind persons through screen reading technology. Robles v. Domino’s Pizza, LLC , 913 F.3d 898 (9th Cir. 2019), cert. denied, 140 S.Ct. 122 (2019).

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Bed & breakfast owner held to have no religious freedom right to refuse to provide lodging to a lesbian couple protected by state public accommodations law

/ Antidiscrimination Law, Religious Freedom

In a case decided several months before the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights Comm’n, 138 S.Ct. 1719 (2018), the Hawaiʻi Supreme Court held that there is no constitutional right to an exemption from a public accommodation law that prohibits discrimination on the basis of sexual orientation, even if the accommodation is a small bed and breakfast business. Cervelli v. Aloha Bed & Breakfast,415 P.3d 919 (Haw. Ct. App. 2018). Nor did the law violate the owner’s rights to privacy or intimate association.

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