Peppin v. Woodside Delicatessen

GARRITY, Judge. The business promotion, which is the subject of this appeal, granted discounts on dinners served to a person wearing either a skirt or a gown. Against this superficially humorous backdrop, we must decide whether this seemingly innocuous business practice constitutes unlawful discrimination within the meaning of a county ordinance. ⁴¹ Our focus will be directed to the Montgomery County Code, Human Relations Law, § 27-9. That section provides: It shall be unlawful for any owner, lessee, operator, manager, agent or employee of any place of public accommodation, resort or amusement within the county: (a) To make any distinction with respect to any person based on race, color, sex, marital status, religious creed, ancestry, national origin, handicap, or sexual orientation in connection with admission to, service or sales in, or price, quality or use of any facility or service of any place of public accommodation, resort or amusement in the county.

We shall look at whether the evidence presented to the Human Relations Commission of Montgomery County was sufficient for it to determine that the practice had a discriminatory effect. We shall then examine whether the business promotion was allowable under the ordinance. Facts This matter began when the Montgomery County Human Relations Commission (Commission) received a complaint filed by Mr. Richard J. Peppin claiming that the Woodside Delicatessen (Woodside) was engaging in a practice of discrimination. The foundation of Mr. Peppin’s allegation was that his bill for dinner at Woodside reflected that only his lady companion had been credited with a 50% discount on the price of her meal.

Upon inquiry, Mr. Peppin learned that on Thursday nights the restaurant provided this discount on dinners to female customers only. In response to Mr. Peppin’s complaint, the Commission advised the owner of Woodside, Mr. Gus Haris, that there were “reasonable grounds to believe” the practice of “Ladies’ Night” at the restaurant was a sex-based price discount in violation of § 27-9 of the Montgomery County Ordinance. The Commission then invited Mr. Haris “to join in a collective effort towards a just conciliation of this matter.” Mr. Haris thereupon abolished “Ladies’ Night” ⁴² and immediately instituted “Skirt and Gown Night.” That promotion entitled any Thursday night patron who wore either a skirt or gown to receive a 50% discount on the price of his or her meal. Skirt and Gown Night at Woodside immediately became the focus of media attention. 1 Initially, 28 men appeared on the appointed evening.

The premises, however, were graced by the presence of only 10 men wearing either skirts or gowns. 2 Six weeks later, however, none of the male patrons on Skirt and Gown Night wore either a skirt or a gown. The Commission’s Public Accommodation Panel (Panel) held a hearing to determine whether Ladies’ Night or Skirt and Gown Night, or both, violated the Montgomery County Code. The Panel unanimously found that Ladies’ Night was indeed a violation. In a split decision, the Panel determined that Skirt and Gown Night was also a violation and that it was “a discriminatory subterfuge, merely an extension of Ladies’ Night.” The Panel consequently ordered Mr. Haris to cease and desist that promotion at Woodside.

On appeal, the Circuit Court for Montgomery County (Cave, J.) affirmed the decision of the Panel as to Ladies’ Night but reversed as to Skirt and Gown Night. The trial judge found the new discount policy to be facially neutral and non-discriminatory because Skirt and Gown Night did not “impact or burden men in any significant manner.” The court based its holding on the fact that “men wear pants because they exercise a fashion preference to do so.” This preference, the court noted, “is not an immutable ⁴³ characteristic of the male gender.” Judge Cave determined that the Panel was clearly erroneous in its finding “that skirts are female attire and that men were thus unfairly burdened by being asked to wear them.” Mr. Peppin asks us to reverse that part of the lower court’s decision concerning Skirt and Gown Night. In addressing this court on appeal, Mr. Peppin explains his concern that we not look upon the preferential practice engaged in at Woodside as too trivial for our review. We believe the matter involves an intrinsically substantive issue which, left unanswered, could serve to encourage far more serious methods of discrimination.

Sufficiency of Evidence to Determine Whether Business Promotion Was Discriminatory The scope of judicial review of the actions of administrative agencies is well settled in Maryland. When a circuit court reviews an agency decision, its task is restricted to determining “whether reasoning minds could reasonably reach that conclusion by direct proof or by permissible inference from the facts and the record before the agency.” State Commission on Human Relations v. Washington County Community Action Council, Inc., 59 Md.App. 451, 455 , 476 A.2d 222 (1984). As a starting point, the agency’s decision is considered to be prima facie correct and carries with it a presumption of validity. Id.

Indeed, as this court has noted: Whichever of the recognized tests the court uses—substantiality of the evidence on the record as a whole, clearly erroneous, fairly debatable or against the weight or preponderance of the evidence on the entire record—its appraisal or evaluation must be of the agency’s fact-finding results and not an independent original estimate of or decision on the evidence. The required process is difficult to precisely articulate but it is plain that it requires restrained and disciplined judicial judgment so as not to ⁴⁴ interfere with the agency’s factual conclusions under any of the tests, all of which are similar____ Commissioner, Baltimore City Police Department v. Cason, 34 Md.App. 487, 499-500 , 368 A.2d 1076 (1977), quoting from Insurance Commissioner v. National Bureau, 248 Md. 292, 309-10 , 236 A.2d 282 (1967). We are faced with two opposing views in the matter sub judice. The Commission, acting through the Panel, determined that Woodside’s Skirt and Gown Night was a discriminatory practice because the business promotion operated to make a distinction in rates and price on the basis of sex.

The circuit court, on the other hand, held that the promotion was facially neutral and did not have discriminatory impact because its volitional clothing requirement “did not burden men in any significant manner.” Our task remains clear. In reaching a determination, we must, as the circuit court should have done, afford deference to the findings of the administrative agency acting within its statutorily prescribed expertise. As the Court of Appeals noted in O’Donnell v. Bassler, 289 Md. 501, 509 , 425 A.2d 1003 (1981), “[i]t is a fundamental principle of administrative law that a reviewing court should not substitute its judgment for the expertise of the administrative agency from which the appeal is taken.” As we stated in Commissioner, Baltimore City Police Dept. v. Cason, 34 Md.App. at 502-3 , 368 A.2d 1076 , quoting from Public Service Commission of Maryland v. Baltimore Gas and Electric Company, 273 Md. 357, 362 , 329 A.2d 691 (1974): We do not, therefore, in considering the legality and reasonableness of the Commission’s decision in this case, afford prima facie correctness to the decree of the court below; nor do we determine merely whether the court abused its discretion in reviewing the Commission’s order— We do not directly review the reasonableness of the determinations made by the lower court, but instead consider whether there was substantial evidence before ⁴⁵ the Commission on the record