Mrs. Doris Daniel and Mrs. Rosalyn Kyles v. Euell Paul, Jr., Individually and as Owner, Operator or Manager of Lake Nixonclub

HEANEY, Circuit Judge

(dissenting) :

In my view, the judgment of the District Court cannot be upheld. It is based on an erroneous theory of the law and is not supported by the facts found by the court.

The court held that the Lake Nixon Club is not a covered establishment under the Civil Rights Act of 1964, § 201 (b) (2) and (4), 42 U.S.C. § 2000a(b) (2) and (4) (1964), despite the fact that a lunch counter is operated on the premises, because the lunch counter is merely an adjunct to the business of making recreational facilities available to the public, and is not a separate establishment.

This conclusion is not supportable. Whether the lunch counter is an adjunct of or necessary to the operation of the Club is immaterial, as is the question of whether the lunch counter is operated as a separate establishment or as a part of a coordinated whole.

Mr. Chief Justice Warren, commenting on the effect of a food facility in an amusement park in Drews v. Maryland, 381 U.S. 421, 428, n. 10, 85 S.Ct. 1576, 1580, 14 L.Ed.2d 693 (1965),1 stated:

“There is a restaurant at Gwynn Oak Park; indeed, petitioners were standing next to it when they were arrested. If a substantial portion of the food served in that restaurant has moved in interstate commerce, [2] the *128entire amusement park is a place of public accommodation under the Act. * -X- -X- n

In Evans v. Laurel Links, Inc., 261 F. Supp. 474 (E.D.Va.1966), the court found that a golf course was a public accommodation within the meaning of the Act because it had a lunch counter located on it. It did this even though the lunch counter accounted for only fifteen per cent of the gross receipts of the golf course. (Lunch counter receipts at Lake Nixon Club were approximately 22.8% of its gross income.) 3 In Evans, the court said:

“The location of the lunch counter on the premises brings the entire golf course within the Act under 42 .U.S.C. § 2000a(b) (4) (A) (ii) which provides that any establishment within the premises of which is located a covered establishment is a place of public accommodation. See H.R. Rep. No. 914, 88th Cong., 2d Sess. (1964) (additional Majority Views, Hon. Robert W. Kas-tenmeier) U.S.Code Cong. & Admin. News, pp. 2409, 2410 (1964); Rasor, Regulation of Public Accommodations Via the Commerce Clause — The Civil Rights Act of 1964,19 Sw.L.J. 329, 331 (1965).”

Id. at 476.

In Adams v. Fazzio Real Estate Co., Inc., 268 F.Supp. 630 (E.D.La.1967), the court held that the snack bar located on the premises of the bowling alley brought the entire facility under the Act. It stated:

“The statute contains no percentage test, and it is not necessary to show that the covered establishment which magnetizes the non-covered establishment in which it is physically located occupies a majority, or even a substantial part of the premises, or that its sales are major or even a substantial part of the revenues of the establishment. * *

Id. at 638 (footnote omitted).

In Scott v. Young, 12 Race Rel.L.Rep. 428 (E.D.Va.1966), the parties consented to the entry of an order providing that as long as an eating establishment was operated on the premises of a recreational facility, the entire facility would be considered a public accommodation within the meaning of the 1964 Civil Rights Act, and that the defendant would be enjoined from denying the equal use of the facility to any person on the basis of race or color.

Furthermore, House Report 914 stated that the establishments covered under § 201(b) (4) “would include, for example, retail stores which contain public lunch counters otherwise covered by title II;” 4 and the additional views of the minority stated that “Section 201(d) precludes racial discrimination * * *. * * * [of] department stores (operating a lunch counter) * * *.”5

*129In Drews6 Evans, Adams and Scott, the records indicate that the lunch counter and the recreation facility were owned by the same entity and operated as one coordinated facility.

The District Court relies on Pinkney v. Meloy, 241 F.Supp. 943 (N.D.Fla.1965), to support its holding that a lunch counter must be a separate establishment (apparently separately owned) to evoke § 201 (b) (4). There, the court held that a barber shop could not discriminate as it was located within a hotel, which was a covered establishment. The barber shop was separately owned, but that fact was not critical to the Pinkney decision. The legislative history of the Act gives as an example the precise fact situation involved in Pinkney:

“A hotel barbershop or beauty parlor would be an integral part of the hotel, even though operated by some independent person or entity [Emphasis added].” 7

The majority opinion of this Court does not base its decision on the rationale of the District Court that Lake Nixon is not a covered establishment within the meaning of §§ 201(b) (2) and (4). It relies instead on an alternative ground, namely, that even if it is otherwise covered, “There is a total lack of proof that Lake Nixon Club served or offered to serve interstate travelers or that a substantial portion of the food served moved in interstate commerce.” One of these elements must, of necessity, be established to bring the Club within the Act.8

As I read the District Court’s' decision, it avoided making a specific finding on *130whether the Club offered to serve interstate travelers. It did, however, state:

“It is probably true that some out-of-state people spending time in or around Little Rock have utilized [Lake Nixon Club facilities].”

This statement, in my view, constitutes a clear and specific finding that the Club served interstate travelers and was sufficient in and of itself to satisfy the interstate commerce requirement of the Act set forth in § 201(c) (2).9 Since this requirement is satisfied, the Club is covered.

While it is not necessary to find additional grounds to satisfy the commerce requirements of the Act, the record also supports the conclusion that the Club offered to serve travelers in interstate commerce: (1) the Club advertised on KALO radio on Wednesdays, Thursdays and Fridays from the last of May through the 7th of September;10 (2) it inserted one advertisement in “Little Rock Today,” a monthly magazine, indicating available attractions in the Little Rock area in the same period; (3) it inserted one advertisement in the “Little Rock Air Force Base,” a monthly newspaper published at the Little Rock Air Force Base, at Jacksonville, Arkansas.

It is clear, as pointed out in the majority opinion, that the advertisements were directed to “members.” It is thus argued that interstate travelers would not consider the invitation as having been addressed to them. I cannot agree. The membership idea was clearly a ruse to keep Negroes from using the Club. It was obviously understood to be such by the people living in the Little Rock area, and there is little reason to doubt that nonresidents would be less sophisticated. It also appears, from the choice of media, that the message was intended to reach nonresidents as well as local citizens. No other sound reason can be advanced for using mass media to promote “entertainment” at a “private” club.

The District Court rationalized that the Club was not a place of exhibition or entertainment as § 201(b) (3) was not intended to cover facilities where *131people came to enjoy themselves by swimming, golfing, boating or picnicking. It reasoned that the Act was only intended to apply to a situation “where patrons came to be edified, entertained, thrilled or amused in their capacity of spectators or listeners.” While it is unnecessary to reach this issue here, the majority opinion reaches it, and thus I feel obliged to.

I cannot concur with the majority: (1) It is difficult to conclude that the Club was not a place of entertainment when the defendants characterized it in those terms in their radio advertisements: “Lake Nixon continues their policy of offering you year-round entertainment.” Footnote 10, supra. See also, Miller v. Amusement Enterprises, Inc., 391 F.2d 86, Civ. No. 24259 (5th Cir. April 8, 1968) (en banc) reversing 259 F.Supp. 523 (E.D.La.1966). (2) It is equally difficult to conclude that the operation of the Club did not affect commerce within the meaning of § 201(c) (3), for the District Court specifically found that the juke boxes, which furnished music for dancing or listening, were manufactured outside of Arkansas, that some of the records played on them were manufactured outside of Arkansas, and that part of the other recreational equipment and apparatus (aluminum paddle boats and “Yaks” — surfboards) were brought into Arkansas from without the state. The fact that the aluminum paddle boats and the “Yaks” (surfboards) could have been manufactured in Arkansas is, in my judgment, not material when the District Court found and the record shows that they were leased and purchased11 from an Oklahoma concern and imported into Arkansas.

. For reasons hereinafter stated, it is my opinion that, in this' case, commerce requirements were met by a showing that the Club served and offered to serve travelers in interstate commerce, thus I do not reach the issue of whether a substantial portion of the food moved in interstate commerce.

. The defendant and others refused to leave an amusement park and were con*128victed in a Maryland State Court of disorderly conduct and disturbance of the peace. After having previously remanded the case to the State Court of Appeals, the Supreme Court dismissed a subsequent appeal and refused to grant certiorari. Mr. Chief Justice Warren, joined by Mr. Justice Douglas, dissented and would have granted certiorari. In the course of discussing the legal issues involved, the Chief Justice noted that although the 1964 Civil Rights Act was passed after the occurrence of the conduct for which the defendants were prosecuted, the Act abated the pending convictions. Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964). In the course of stating that view, he made the observations quoted above.

. In 1966, the gross income from food sales was $10,468.95, as compared with a total gross income of $46,326.

. House Report (Judiciary Committee) No. 914, 1964 U.S.Code Cong. & Ad.News, pp. 2391, 2396.

. Additional Views on H.R. 7152 of Hon. William M. McCulloch, Hon. John V. Lindsay, Hon. William T. Cahill, Hon. Garner E. Shriver, Hon. Clark Mac-*129Gregor, Hon. Charles McC. Mathias, Hon. James E. Bromwell, 1964 U.S.Code Cong. & Ad.News, 2487, 2494.

. Drews v. State, 224 Md. 186, 167 A.2d 341, 342 (1961).

. Senate Report (Judiciary Committee) No. 872,1964 U.S.Code Cong. & Ad.News, pp. 2355, 2358-2359.

. It need not be established that the defendants’ food “operations affect commerce” if the discriminatory practices by the defendants were “supported by state action.” A state action theory of the case was not alleged nor argued.

The 1964 Civil Rights Act specifically defines “supported by state action:”

“§ 201 (d) Discrimination or segregation by an establishment is supported by State action within the meaning of this subchapter if such discrimination or segregation (1) is carried on under color of any law, statute, ordinance, or regulation; or (2) is carried on under color of any custom or usage required or enforced by officials of the State or political subdivision thereof; or (3) is required by action of the State or political subdivision thereof.”

An Arkansas statute purports to give an omnibus right to descriminate:

“§ 71-1801. Right to select customers, patrons or clients. — Every person, firm or corporation engaged in any public business, trade or profession of any kind whatsoever in the State of Arkansas, including, but not restricted to, * * * restaurants, dining room or lunch counters, * * *, or other places of entertainment and amusement, including public parks and swimming pools, * * *, is hereby authorized and empowered to choose or select the person or persons he or it desire to do business with, and is further authorized and empowered to refuse to sell to, wait upon or serve any person that the owner, manager or employee of such public place of business does not desire to sell to, wait upon or serve; * *

Arkansas Statutes Annotated, Vol. 6A (1967 Supp.).

The statute is further supported by criminal sanctions:

“§ 71-1803. Failure to leave after request — Penalty.—Any person who enters a public place of business in this State, or upon the premises thereof, and is requested or ordered to leave therefrom by the owner, manager, or any employee thereof, and, after having been so requested or ordered to leave, refuses so to do, shall be guilty of a trespass and upon conviction therefor shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six (6) months, or both such fine and imprisonment. [Acts 1959, No. 169, § 3, p. 1007.]”

Arkansas Statutes Annotated, Vol. 6A (1967 Supp.).

*130In view of the fact that I would reverse on other grounds, it is not necessary to express a view as to whether the plaintiff has made a prima facie case that the discrimination is supported by state action under § 201(b) (I) by simply showing that the defendant discriminated and that the statute explicitly gave him that right. Cf., Adickes v. S. H. Kress & Company, 252 F.Supp. 140 (S.D.N.Y.1966). Furthermore, it is not necessary to express an opinion as to whether it is a defense to establish that the defendant would have discriminated regardless of the state statute. Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 293 F.2d 835, 846-847 (1961) (dissenting opinion), cert. denied, 370 U.S. 925, 82 S.Ct. 1562, 8 L.Ed.2d 505 (1962).

. The conclusion of the District Court draws additional support from the following facts:

(1) The defendants made no attempts to specifically exclude interstate travelers :
(a) The membership card did not require that the applicant sign his address ;
(b) Tlie advertisements did not suggest that an interstate traveler could not become a member; and
(c) There is no sign posted at the entrance which restricted the membership only to Arkansas residents.
(2) Members brought guests.
(3) Lake Nixon appears to be only about six to eight miles by road from the only federal highway between Little Rock and Ilot Springs.

. The radio copy read as follows:

“Attention ' . . all members of Lake Nixon. Attention all members of Lake Nixon. In answer to your requests, Mr. Paul is happy to announce the Saturday night dances will be continued . . . this Saturday night with music by the Villagers, a great band you all know and have asked to hear again. Lake Nixon continues their policy of offering you year-round entertainment. The Villagers play for the big dance Saturday night and, of course, there’s the jam session Sunday afternoon . . . also swimming, boating, and miniature golf. That’s Lake Nixon.....”

. It appears from the record that the “Yaks” were purchased rather than leased:

“Q. Do you have any other kind of boats there?
“A. We have what we call a yak.
“Q. A yak; what’s a yak?
“A. Its similar to a surfboard.
“Q. Similar to a surfboard; do you know where you purchased that?
“A. Prom the same company.
“Q. What company is that?
“A. Aqua Boat Company.
“Q. Who?
“A. Aqua Boat Company.
“Q. Is that a local Company?
“A. No.
“Q. Where is it?
“A. I believe they’re in Oklahoma, Bartlesville.”