April 14 2017
On March 29, 2017, in a unanimous decision, the U.S. Supreme Court vacated the Second Circuits ruling on Expressions Hair Design v. Schneiderman, a case regarding a New York law which allows merchants to offer discounts to customers who pay in cash, but bans the imposition of credit card surcharges. The Courts decision indicated that this law improperly regulates speech, making it subject to heightened scrutiny under the First Amendment, and remanded the case to the Second Circuit Court of Appeals. Just a few days later, the Supreme Court declined to review a similar case out of the Eleventh Circuit, Bondi v. Danas Railroad Supply, in effect upholding the lower court decision that invalidated an indistinguishable no-surcharge law in Florida.
The Courts recent actions call into question the constitutionality of regulations across the country which state that in a sale of goods or services, a seller may not impose a surcharge on a buyer who uses a credit card for an extension of credit instead of cash, check, or similar means of payment. These laws are currently on the books in California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, New York, Oklahoma, and Texas. The rulings impact the multi-housing industry and the significant number of rental units in these states, as most property management software offerings charge a convenience fee for the use of an online payment portal.
See also: Expressions Hair Design v. Schneiderman, No. 15-1391, slip op. at 10 (U.S. Mar. 29, 2017); Bondi v. Danas Railroad Supply, No. 15-1482 (U.S. Apr. 3, 2017); Danas R.R. Supply v. Atty. Gen., 807 F.3d 1235, 1238 (2015); Rowell v. Pettijohn, No. 15-1455 (U.S. Apr. 3, 2017)