The Colorado Civil Rights Division has a double standard for ladies' nights -- and newspapers
I am being held hostage by Steve Horner.
And the state helped write the ransom note.
I first met Horner two years ago, when he was sending haranguing notes and leaving endless voice-mail messages about how I, and this newspaper, "have been totally insensitive to the needs of this egalitarian society," not to mention aiding and abetting criminal actions, and that, just as he might tackle a burglar he saw breaking the law, he might "tackle a bad girl," too.
Instead, the bad girl bought him a beer and listened while Horner expounded, at stultifying length, on the evils of — what else? Ladies' nights. Horner was a relative newcomer to Denver at the time, but he was not new to this cause and had already filed a complaint with the Colorado Division of Civil Rights regarding a ladies' night at a local club. And, of course, already irritated bureaucrats around town with his haranguing notes and endless voice-mail messages.
But then, Horner had plenty of practice. He'd found his calling in the early '90s, when he was a single father in Apple Valley, Minnesota, and on a rare night out of the house discovered that Gators, a bar in the Mall of America, was letting women in for free when he'd have to pay half of his ten bucks just to get through the door. Horner filed a complaint with the Minnesota Department of Civil Rights about that, and campaigned so hard for his cause that he was convicted of harassing a department official.
After Horner left Minnesota for jobs in radio and advertising in Arizona, and California, and Oregon, and Idaho, he continued the fight against ladies' night, finally bringing it to Colorado in the summer of 2006. Our beery discussion did not dissuade him; instead, he kept filing charges against bars with the Colorado Division of Civil Rights and filing suit against more bars (including the one where we'd met) in Denver County Court, winning some and losing some. And then he filed suit against Westword, asking for $15,000 in damages because "from January to May 2007, the defendant published at least 30 discriminatory ads."
Ads that all promoted ladies' nights.
"This is not only something I can do as a United States citizen, this is something I believe I must do," Horner told Denver County Court Judge Brian Campbell during our day in court, in August 2007. "This is Rosa Parks-ish. This is Martin Luther King-ish.... It's about civil rights. It's about the protections of the U.S. Constitution.... This case is no different than if a black person was up here pleading for his or her rights, if she or he was denied equal treatment at a grocery store."
But it was different — because Horner wasn't suing the grocery store. He was suing a newspaper that had published an advertisement for a bar. He may have been "humiliated over not being invited to the party, and very, very angry," as he proclaimed in court, but Westword didn't host the party; we'd just mailed the invitations. Despite hours of mind-numbing testimony from Horner, the judge recognized this and ruled that the words "indirectly discriminate" in the state civil-rights statute do not apply to newspaper ads, because newspapers are not places of "public accommodation."
But Horner wasn't going down without a fight. "As a person in advertising, I know that your interpretation is totally incorrect," he told the judge.
On the surface, it does seem unfair that women can get into a club for free, and sometimes even drink for free, when men cannot. But this injustice hardly rises to the level of Rosa Parks being sent to the back of the bus, and I'd guess a true civil-rights activist would rather drive a bus over Horner than listen to him compare his cause to theirs. Besides, most bar owners would readily tell you that they offer ladies' nights not for ladies, but for men, so that they can be sure there are plenty of females in their establishment — an amenity most men appreciate. Liquored-up females, especially.
So Westword continued to publish ads touting ladies' nights, and last fall Horner filed a charge with the Colorado Division of Civil Rights, claiming that by repeatedly publishing these ads, we'd discriminated against him. On February 13, we learned that the division had determined there was "sufficient evidence to support the charging party's claims of denial of full and equal enjoyment of a place of public accommodation and discriminatory advertisement by a place of public accommodation." Since this was a "probable cause" determination, division director Steven Chavez concluded, "Parties are hereby ordered to proceed to attempt resolution of this claim by compulsory conciliation."
Thus far, Horner's conciliatory attempt has been to inform us — through the division's mediators — that if we pay him $7,000, he will settle this claim and never file suit against Westword again. But if we up the ante to $20,000, he will also agree not to teach other people how to make money off of ladies'-night claims.
He is holding us hostage.
And the state helped write the ransom note.
Other businesses report receiving similar settlement offers from Horner: a couple hundred to settle a case, double that for his promise never to file another case. "I got La Rumba's settlement offer and told him (in so many words) to stick it," says Jerri Theil, who was on the receiving end of a Horner complaint for a ladies' night at that club. "By making the Division of Civil Rights handle case after frivolous case, he has taken an agency that was created to help truly oppressed people and turned it into a joke. This isn't oppression."
"It felt like blackmail," another club owner reports. And now the state is playing bagman.
Researching our appeal, we found an earlier charge Horner had filed with the Colorado Division of Civil Rights, this one against the Denver Newspaper Agency, citing a Denver Post ad for the Penthouse Club's "Amateur Centerfold Search," along with a drink promotion.
Horner made that charge under the state statute regarding "discrimination in places of public accommodation." Just as he later would in our case.
In its determination released on February 23, 2008, and signed by Steven Chavez, the division noted that "the respondent does not deny any of the facts as stated above, and claims that it is not a place of public accommodation." Just as Westword later would.
But there's one critical difference in these two otherwise identical cases: the conclusion. Because while the division found probable cause against Westword, it issued a "no probable cause determination" for the Denver Newspaper Agency.
As Chavez explained in that document: "For the Charging Party to establish a claim under this statute, the Respondent must be found to be a 'place of public accommodation.' It is notable that the Charging Party has previously filed a virtually identical case, which involved an identical advertisement, along with other advertisements, against Westword Publishing, with the City and County of Denver. The Charging Party failed on the merits of the case. Although Colorado case law does not speak directly to the topic, there are sufficient grounds to determine that the Respondent in this particular case is not a place of public accommodation. First, the nature of its business is not substantially similar to the categories of businesses listed in the defining statute. Second, the City and County of Denver, in the case cited above, and in an unreported and oral opinion, ruled on this issue and determined that the newspaper in that case was not a 'place of public accommodation.' In fact, the Charging Party, as plaintiff in that case, indicated during the trial that he did not consider a newspaper to be a place of public accommodation. Third, several other jurisdictions have determined that newspapers are not places of public accommodation. Thus, the Charging Party in the instant case fails on the inapplicability of the statute."
Here's the decision stripped of legalese: The Colorado Division of Civil Rights tossed Horner's complaint against the Denver Post because a newspaper, unlike a bar, is not a place of public accommodation, and cited Judge Campbell's ruling in the Horner/Westword case as precedent.
But last month, this same agency completely ignored its determination of the year before — as well as our own legal argument citing Campbell's decision — when it moved into Horner's corner and decided that "Westword is a place of public accommodation under the statute." Unlike the Denver Post.
Does the Colorado Division of Civil Rights have a double standard for double standards?
We'll find out: When confronted with this odd about-face, the division said it would reconsider our case.
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