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Two restaurants on the north shore of Kauai have posted social media notices that they won’t be serving visitors, who arrive through the state’s pre-arrivals testing program, in their dining rooms.
Saenz Ohana Breakfast in Princeville posted Friday that it would only allow visitors to order online and pick up and that only residents with local state IDs would be allowed to order, sit and eat.
Two restaurants on the north shore of Kauai have posted social media notices that they won’t be serving visitors, who arrive through the state’s pre-arrivals testing program, in their dining rooms.
Saenz Ohana Breakfast in Princeville posted Friday that it would only allow visitors to order online and pick up and that only residents with local state IDs would be allowed to order, sit and eat.
I'd be shocked if it wasn't legal as tourists aren't a protected class. That said, how do they enforce it? Apart from what you mentioned about local IDs not being required to live in Hawaii (I never had such an ID and lived there for 3.5 years . . . but to be fair, I'm military, though up to 10% of the state are military and dependents), I know that Kauai is small, but the island still has over 70,000 residents. It's not exactly a place where everyone knows everyone else. Thus, such a rule would either require restaurants to be extremely intrusive (asking people things about the area that only locals would know . . . but that only goes so far for so long) or with patrons being honest about where they are from.
If you aren't open to the public - make yourself a private club.
Wait until the tourist in the wheelchair shows up, or with a baby - or older - or a minority.
Protected classes will certainly come into play one way or another - it is unavoidable.
That protected classes are affected incidentally isn't the legal test. The test concerns whether someone intends to discriminate against a protected class. My hypothetical prohibition against renting to non military members would affect people of all races, genders, sexes, etc. (all protected classes). Yet, it would be perfectly legal as my prohibition is not aimed at any protected class.
That said, I don't agree with the proposal and hope it fails.
That protected classes are affected incidentally isn't the legal test. The test concerns whether someone intends to discriminate against a protected class.
Lets skip protected classes.
Lets go with the Privileges and Immunities Clause - Constitution Article IV, Section II, Clause 1. Prevention of a State from treating residents of another State in a discriminatory manner.
Lets go with the Privileges and Immunities Clause - Constitution Article IV, Section II, Clause 1. Prevention of a State from treating residents of another State in a discriminatory manner.
It's not the state we are dealing with here, though, but private citizens and businesses.
It's not the state we are dealing with here, though, but private citizens and businesses.
That are open to the Public whose laws are enforced by the State.
If you want to bar non-residents, I think they are setting themselves for a lawsuit - make yourself a private club with the admission requirement being a resident.
Much like they did in Utah - maybe they still do, maybe not. I remember going to Park City - and in order to get over the wacky state rules on drinking, I had to become a member of the bar. More or less everyone could be a member, most with a small fee
That are open to the Public whose laws are enforced by the State.
If you want to bar non-residents, I think they are setting themselves for a lawsuit - make yourself a private club with the admission requirement being a resident.
Much like they did in Utah - maybe they still do, maybe not. I remember going to Park City - and in order to get over the wacky state rules on drinking, I had to become a member of the bar. More or less everyone could be a member, most with a small fee
But, again, that's not the legal test. The Constitution either generally expressly places restrictions on what government can do (and in some cases, private citizens, such as under the 13th Amendment) or otherwise gives Congress power to limit the actions of private citizens consistent with congressional authority under Article II. To the latter point, Congress (and states under their own constitutions) has proscribed certain behavior by private persons and businesses under certain circumstances through the creation of protected classes and placing limits on how private parties can choose to (or choose not to) interact with these protected classes. But neither Congress nor the State of Hawaii under the state constitution as best I can tell have made tourists a protected class. To the former point, there is no part of the Constitution itself that would prohibit what these business owners want to do.
Folks may sue. But just because folks can sue doesn't mean that their lawsuits have merit; look to the many lawsuits filed against state lockdown procedures, the overwhelming majority of them being unsuccessful.
Don't get me wrong: I think this move by the two Kauai businesses is stupid, counter productive, and just plain foolish. And I hope it fails and backfires. My point is merely that there doesn't seem to be any legal prohibition against what they are doing.
But, again, that's not the legal test. The Constitution either generally expressly places restrictions on what government can do (and in some cases, private citizens, such as under the 13th Amendment) or otherwise gives Congress power to limit the actions of private citizens consistent with congressional authority under Article II. To the latter point, Congress (and states under their own constitutions) has proscribed certain behavior by private persons and businesses under certain circumstances through the creation of protected classes and placing limits on how private parties can choose to (or choose not to) interact with these protected classes. But neither Congress nor the State of Hawaii under the state constitution as best I can tell have made tourists a protected class. To the former point, there is no part of the Constitution itself that would prohibit what these business owners want to do.
Folks may sue. But just because folks can sue doesn't mean that their lawsuits have merit; look to the many lawsuits filed against state lockdown procedures, the overwhelming majority of them being unsuccessful.
Don't get me wrong: I think this move by the two Kauai businesses is stupid, counter productive, and just plain foolish. And I hope it fails and backfires. My point is merely that there doesn't seem to be any legal prohibition against what they are doing.
Several restaurants are refusing to seat anyone who has traveled outside of Kauai, including interisland. This rule includes locals who have traveled. (How could a restaurant know of their travels?)
It seems like a sneaky way to discriminate against mainlanders.
BTW: Kauai just had two new Covid cases caused by a local woman's trip to Oahu.
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