CHARLES B SWAYNE, Complainant
c/o VALLEY VIEW FITNESS

LAX TENNIS LTD, Complainant
d/b/d VALLEY VIEW FITNESS

DAVE WATSON INC, Respondent
d/b/a IT FIGURES (HOLMEN)

DAVE WATSON INC, Respondent
d/b/a IT FIGURES (LA CROSSE)

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. Paragraph 2 of the administrative law judge's ORDER is deleted. (1)

2. The following paragraph is inserted after paragraph 3 of the administrative law judge's ORDER:

"The respondent shall pay to the complainant reasonable attorney fees and costs associated with replying to the respondent's petition for commission review in the amount of $594.50. A check in that amount shall be made payable jointly to the complainant and Dawn Marie Harris and delivered to Attorney Harris."

3. The first sentence in paragraph 4 of the administrative law judge's ORDER is deleted and the following sentence is substituted therefor:

"The Respondent shall pay civil forfeitures totaling four thousand five hundred dollars ($4,500), five hundred dollars each for each of the following violations:"

4. Paragraph number 5 of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."

5. The administrative law judge's ORDER is renumbered accordingly.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed September 24, 2003
swaynch . rmd : 164 :  

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

In its petition for commission review the respondent concedes that its use of the phrases "women only" and "exclusively for women" did not conform with the advertising provisions of the Wisconsin Public Accommodations and Amusements Law that was in effect at the time of the hearing, but argues that its use of the trademark "it figures!," along with the tag line "Fast Fun Fitness For Her," did not violate the law. However, while the phrase "Fast Fun Fitness For Her" is not as unambiguously discriminatory as "women only" or "exclusively for women," the commission nonetheless finds it to be discriminatory, particularly given the context in which it appeared in this case. The logo, "it figures! Fast Fun Fitness For Her," accompanied by a graphic depicting an exercising woman and a tape measure, describes an exercise facility that is intended for women, and would convey the impression to a reasonable reader that men were not welcome. The commission agrees with the administrative law judge that the respondent's use of that logo and tag line was in violation of the statute in effect at the time.

The respondent also argues that its violations of the law were not wilful and that it should not have been assessed a forfeiture penalty. The commission has considered the respondent's arguments on this point, but finds them unpersuasive. The respondent intentionally advertised its services for "women only," knowing that this would have the effect of communicating a message that men were unwelcome. The respondent's owner testified that he checked with State authorities before opening the business and was told that he could not discriminate against men. He further indicated that he contacted the Department of Agriculture Trade and Consumer Protection, which faxed him the "requirements" of the State of Wisconsin. However, in spite of receiving advice from the Attorney General's office that it was not permitted to discriminate against men and receiving printed information about the requirements of Wisconsin law, the respondent nonetheless aggressively advertised itself as a "women only fitness center" or used other wording which suggested that its facilities would be denied to males or that their patronage was unwelcome. The commission believes that these facts support a finding that the respondent wilfully violated the law.

The commission notes that the administrative law judge's finding of wilfulness appears to be based on the fact that the respondent continued to use women-only type advertisements after the complaint was filed. The respondent maintains in its brief that the notice of a complaint is not tantamount to a finding of a court or an administrative order, and does not amount to a determination that any actions by the respondent have violated the law. The commission agrees with the respondent that the filing of the complaint by the complainant did not have the effect of putting the respondent on notice that its conduct was in violation of the law. However, as set forth in the preceding paragraph, the record indicates that prior to the filing of the complaint the respondent sought and received information regarding the requirements of the Wisconsin Public Accommodations and Amusements Law. The commission believes that the respondent was aware that its conduct was in contravention of the law prior to its receipt of the complaint, and while its continuation of the unlawful conduct after the complaint was received may have demonstrated a lack of interest in conforming its conduct to the requirements of the law, the commission does not consider the receipt of the complaint to be central to a conclusion that the respondent's actions amounted to a wilful violation of the law for which a forfeiture penalty should be assessed.

Finally, in its petition the respondent makes the alternative argument that, even if the commission upholds the decision to assess a forfeiture, the amount of the penalty forfeiture ordered by the administrative law judge is excessive and should be reduced. The respondent indicates that it is a small business owner and that, if it is required to pay the maximum penalty, this could force it out of business. The respondent suggests that a more appropriate amount would be $100 per violation, rather than $1,000, as ordered by the administrative law judge.

The statute provides for a forfeiture of not less than $100 or more than $1,000 where there has been no other violation within the last five years. See Wis. Stat. § 106.52(4)(d). The assessment of forfeitures within the statutory range lies within the sound discretion of the agency. State v. Weller, 109 Wis. 2d 665, 673, 327 N.W.2d 172 (1982); State v. City of Monona, 63 Wis. 2d 67, 72, 216 N.W.2d 230 (1974). Based upon this record, the commission concludes that a $500 forfeiture per violation, for a total of $4,500, is appropriate. The commission believes that such a penalty reflects the seriousness of the violations, while taking into account the absence of the type of aggravating factors that might warrant assessing the highest possible penalty. The commission additionally notes that it sees no reason to believe a total forfeiture of $4,500 would be so severe as to put the respondent out of business. The commission has modified the administrative law judge's decision in accordance with the above. It has also modified the decision to award attorney fees and costs related to the proceedings before the commission, and has made those additional modifications necessary to conform the remedial order with current law.

cc: 
Attorney Dawn Marie Harris
Attorney Thomas J. Kieffer

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(1)( Back ) Subsequent to the issuance of the administrative law judge's decision, the legislature amended the Wisconsin Public Accommodations and Amusements Law. The newly amended statute, which went into effect on June 3, 2003, provides, "Nothing in this section prohibits a fitness center whose services or facilities are intended for the exclusive use of persons of the same sex from providing the use of those services or facilities exclusively to persons of that sex, from denying the use of those services or facilities to persons of the opposite sex, or from directly or indirectly publishing, circulating, displaying, or mailing any written communication to the effect that the use of those services or facilities will be provided exclusively to persons of the same sex and will be denied to persons of the opposite sex." Wis. Stat. § 106.52(3)(e). Because a fitness center, as defined in Wis. Stat. § 106.52(1)(cm), is now permitted to discriminate based upon sex, the cease and desist order in the administrative law judge's decision is no longer enforceable.

uploaded 2003/09/25