Jean Denny Seandria Denny v. Elizabeth Arden Salons, Incorporated

KING, Circuit Judge,

dissenting in part:

Although I readily concur in the majority’s reinstatement of the Dennys’ § 1981 claim (Part III), and in its disposition of their state-law claim (Part TV), I disagree with Part II of the majority opinion. In my view, the majority has erred in ruling that the Elizabeth Arden Red Door Salon and Spa (the “Red Door Spa,” or the “Spa”) falls outside the ambit of the Civil Rights Act of 1964. As I see it, the majority’s analysis suffers from two fatal errors. First, it fails to adhere to controlling precedent and accord proper effect to the broad statutory language of section 201 of the Civil Rights Act, codified at 42 U.S.C. § 2000a (the “Public Accommodations Statute,” or the “Statute”). Second, its reasoning relies on a crucial factual misapprehension — that the Red Door Spa is merely a hair salon when, in fact, it is much, much more.

I would recognize the Red Door Spa for what it is — a place of public accommodation within the meaning of the Public Accommodations Statute. And I would reverse the district court, reinstating the Dennys’ claim that Elizabeth Arden denied them the full and equal enjoyment of the Spa’s services because they are African-American (the “Public Accommodations Claim”).

I.

In assessing the district court’s award of summary judgment to Elizabeth Arden, we are obliged to view the facts, and the reasonable inferences to be drawn therefrom, in the light most favorable to the Dennys. See Baqir v. Principi, 434 F.3d 733, 741 (4th Cir.2006). Assessed in that light, the record discloses the following: The Red Door Spa, located directly across from the Tyson’s Corner Shopping Center in Vienna, Virginia, is open to the public, and its operations affect interstate commerce. According to its website, the Spa offers “a complete menu of salon and spa services,” including “signature skincare, massage and body treatments, nail services, hair design, makeup artistry, and much, much more.” J.A. 65 (emphasis added).1 These services include the “elemental balancing massage,” which, the website declares, “has been called an ‘out of body experience’ by many of our guests.” Id. Moreover, one of the Spa’s *438advertising brochures lists the various packages it offers — -with names such as the “Red Door Rescue,” the “Miracle Morning,” and the “Executive Escape” — that include such services as “Purifying Scented Body Wrap[s],” “Desert Stone Massage[s],” and “Swedish Massage[s].” J.A. 66.

On May 26, 2002, Seandria Denny purchased a gift package from the Red Door Spa for her elderly mother, Jean, who was in her seventies. The gift package, called the “Miracle Morning” by the Spa, sold for the sum of $295 and included a Swedish body massage, a “Red Door Facial,” a “Warm Cream” manicure, hair styling, makeup application, and a “Spa” lunch. J.A. 65. Jean Denny went to the Spa on May 30, 2002, to redeem her Miracle Morning gift package and, while Jean was obtaining her spa services, her daughter Seandria decided to augment the gift by the additional purchase of a hair coloring for her mother. Seandria then telephoned the Spa, arranged to purchase the hair coloring, and drove to the Spa to pay and to check on her mother.

When Seandria arrived at the Red Door Spa and sought to pay for Jean’s hair coloring, however, she was advised by the Spa’s receptionist that “we have a problem.” J.A. 73. Seandria inquired promptly about the “problem,” and the receptionist made the racist response that the Spa did not “do black people’s hair.” Id. When Seandria protested that “[t]here is no such thing as black people’s hair,” the receptionist reiterated: “I’m sorry, we just don’t do it. If you don’t mind sitting down, I will have my manager come talk to you and explain to you what’s going on.” Id. Shortly thereafter, the Spa’s manager approached Seandria and advised her that “every single one” of the eight or nine hair stylists on duty had “refused” to color Jean’s hair. Id. at 74. Continuing, the manager explained that “20 years ago they were all required and trained to do black people’s hair, but in this day and age it is not required.” Id.

II.

A.

The Public Accommodations Statute guarantees that, in this country, “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined [herein],” irrespective of their race or color. 42 U.S.C. § 2000a(a). The Supreme Court has recognized that the Statute’s “overriding purpose” is “to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.” Daniel v. Paul, 395 U.S. 298, 307-08, 89 S.Ct. 1697, 23 L.Ed.2d 318 (1969) (internal quotation marks omitted). Accordingly, the Court has mandated that we read the Statute carefully, in a manner consistent with its broad purpose and language.

Pursuant to the Public Accommodations Statute, a “place of public accommodation” has three characteristics: (1) it “serves the public”; (2) it “affects interstate commerce”; and (3) it falls within one of four categories enumerated. See § 2000a(b). According to Elizabeth Arden and the majority, the Red Door Spa does not constitute a “place of public accommodation” under the Statute because it does not fit into any of the four categories enumerated in § 2000a(b). I strenuously disagree, and submit that the Spa falls squarely within the third such category, § 2000a(b)(3).

Section 2000a(b) includes, as a place of public accommodation, “any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or *439entertainment.” . See § 2000a(b)(3) (emphasis added). And the Supreme Court, in addressing the Statute’s breadth, has determined that “the statutory language ‘place of entertainment’ should be given full effect according to its generally accepted meaning.” Daniel, 395 U.S. at 308, 89 S.Ct. 1697. According to the Court, even though “most of the discussion in Congress regarding the coverage of [the Public Accommodations Statute] focused on places of spectator entertainment!,] ... a natural reading of its language would call for broader coverage.” Daniel, 395 U.S. at 307-08, 89 S.Ct. 1697. To illustrate, Justice Brennan quoted from Webster’s Third New International Dictionary, defining “entertainment” as “the act of diverting, amusing, or causing someone’s time to pass agreeably.” Id. at 306, 89 S.Ct. 1697 n. 7. Having so construed the “place of entertainment” provision of the Statute, Justice Brennan had little difficulty concluding for the Court that the recreation area at issue in Daniel constituted a “place of public accommodation” under the Statute. Id. at 308, 89 S.Ct. 1697.2

Pursuant to the settled principles of Daniel, the facilities enumerated as “placets] of exhibition or entertainment” in § 2000a(b)(3) are unified by their common purpose of providing relaxation, amusement, recreation, and the like. And whether a particular business establishment constitutes such a “place of entertainment” is determined by a fact-bound inquiry into the facility’s purposes. See United States v. Cent. Carolina Bank and Trust Co., 431 F.2d 972, 974 (4th Cir.1970) (focusing on golf pro shop’s purpose as adjunct to golf course and concluding that pro shop was “place of entertainment”). For example, few persons visit auto mechanics to be amused- or diverted, and an auto mechanic’s shop thus would not- likely constitute a “place of entertainment” under the Public Accommodations Statute, even though it might provide its waiting customers with a television for casual viewing.3 By contrast, an amusement park — featuring roller coasters — derives its business from those who seek the thrills associated with speed and heights, and is thus “a place of entertainment” within the Statute, notwithstanding that its primary method of entertainment differs from that offered by motion picture houses, theaters, concert halls, or sports arenas.

Business entities that provide their customers with physical and personal care services exist along a spectrum from the purely utilitarian to the entertaining. As a general proposition a traditional barber shop (providing hair cuts only) may not fit into any ordinary definition of a “place of entertainment.” See Halton v. Great Clips, Inc., 94 F.Supp.2d 856, 862 (N.D.Ohio 2000) (concluding that establishment which provided only “hair services” was not “place of entertainment” under § 2000a(b)(3)). On the other hand, those business entities that exist to pamper, amuse, or provide recreation to their customers plainly have the purpose of entertaining, and thus fall within the Public Accommodations Statute’s “broad[ ] eover-*440age.” See Daniel, 395 U.S. at 307, 89 S.Ct. 1697; Rousseve v. Shape Spa for Health and Beauty, Inc., 516 F.2d 64, 67-68 (5th Cir.1975) (concluding that defendant’s health spa is “place of entertainment”); Johnson v. Brace, 472 F.Supp. 1056 (E.D.Ark.1979) (same); see also Holton, 94 F.Supp.2d at 862 (“Courts have found covered establishments include, inter alia: health spas, golf courses, and beach clubs____”)4

My good friends in the majority erroneously conclude that the Red Door Spa is not a place of public accommodation, reasoning that “the plain text of the [Sjtatute demonstrates that beauty salons are not covered by [it],” because “[t]hey are not mentioned in any of the numerous definitions of ‘place of public accommodation,’ ” and “[t]hey also bear little relation to those places of entertainment that are specifically listed.” Ante at 431; see also id. at 432 (stating that “a beauty salon” is not “remotely akin to the movies, concerts, and sports facilities Congress listed in the statute”). The Court in Daniel, however, specifically rejected the ejusdem generis conclusion that places of entertainment “should be restricted to the primary objects of Congress’ concern” — that is, motion picture houses, theaters, concert halls, sports arenas, and stadiums, as expressly enumerated in § 2000a(b)(3) — because “a natural reading” discloses the Statute’s “broader coverage.” See 395 U.S. at 307, 89 S.Ct. 1697.5 Indeed, any business entity that has the specific purpose of providing “entertainment,” as that term is generally understood, is covered by the Statute’s broad reach. See id.6

In seeking to distinguish Daniel, the majority, as it must, focuses on the decision’s result — that the 232-acre amusement area in question was a place of entertainment — and fails to adhere to the Court’s broad construction of “place of entertainment.” Compare ante at 432, with Daniel, 395 U.S. at 307-08, 89 S.Ct. 1697. We are bound, however, by the Court’s construction of § 2000a(b)(3) in Daniel, which has constituted controlling precedent for thirty-six years. If Congress had desired to overrule Daniel in favor of some narrower interpretation, it could easily have amended § 2000a(b)(3) to read, in relevant part, “or other similar place of exhibition or entertainment.” In the ab*441sence of such Congressional action, we are obliged to apply Daniel’s broad construction of the Statute.7

B.

Viewing the facts in the light most favorable to the Dennys, a specific purpose of the Red Door Spa is to provide entertainment, and it is therefore subject to the Public Accommodations Statute.8 The majority’s conclusion to the contrary is anchored in its factual misapprehension of the Spa as a “salon” that “primarily offer[s] body maintenance services with tangential entertainment value.” Ante at 432. Although the word “salon” appears in the Spa’s title, and although the Spa offers hair-styling services to the public, the record fails to support the proposition that the Spa’s singular purpose is the styling of hair.

The name “Elizabeth Arden Red Door Salon and Spa” implies a place where patrons come to relax and divert from their everyday lives. Through the years, the word “spa” has taken on many meanings, from the name of a Belgian town known for the curative properties of its mineral springs; to health baths containing hot, aerated water; to resorts that offer health and beauty treatments; to the modern “day spas” that provide patrons a temporary escape from daily life through massages, mud baths, steam treatments, and the like. See The New Oxford American Dictionary 1624 (2d ed.2005); The Oxford English Dictionary Vol. XVI 86-87 (2d ed.2004); see also, e.g., Gina Damron, Manhood Makeover: More Men Finding Their Way to Spas, Detroit Free Press, June 25, 2006, 2006 WLNR 11008673 (citing editor of Day spa magazine for proposition that “some of the reasons why men have become more interested in spa treatments ... include ... the need for release from daily stresses”); Avignon Village “Ordinary Life into Extraordinary” FAST FACTS, K.C. Star, June 18, 2006, at K1 (describing “7,800-square-foot day spa and clubhouse, designed for convenience and pampering”); Tim Golden, Jihadist or Victim: Ex-Detainee Makes a Case, N.Y. Times, June 15, 2006, at A1 (quoting State Department public diplomacy official: “Guantanamo is not a spa, but nor is it an inhumane torture camp”). It is entirely reasonable to conclude that Elizabeth Arden, in naming the Red Door Spa, used the term “spa” in its normal sense, and that a particular purpose of the Spa is providing services that relax, amuse, and divert its patrons.

More importantly, on this record, the “spa services” provided at the Red Door Spa extend well beyond the mere styling of hair. According to its website, the Spa offers “a complete menu of ... spa services,” including “massage and body treatments” and “much, much more.” J.A. 65 *442(emphasis added).9 Viewed in the proper light, the Spa thus has the specific purpose of relaxing, amusing, and diverting its customers, and the factual premise for the majority’s analysis — that the Spa’s lone purpose is the styling of hair — has no foothold in the record.

III.

With all respect for my distinguished colleagues, I dissent from Part II of the majority opinion. I would reverse the district court’s summary judgment award on the Public Accommodations Claim and remand for further proceedings.

. The citations to “J.A. _" refer to the contents of the Joint Appendix.

. There was no dissent in Daniel from Justice Brennan's handling of the “place of entertainment” issue. Justice Black, the lone dissenter, wrote that he "could and would” agree with the Court’s holding (including its statutory interpretation) if Congress had enacted the Public Accommodations Statute pursuant to the Fourteenth Amendment, rather than the Commerce Clause. See Daniel, 395 U.S. at 309, 89 S.Ct. 1697 (Black, J., dissenting).

. As the qualifier "[flor example” demonstrates, the hypothetical auto mechanic's shop is just one of the entities that might not be a "place of entertainment” under the Statute. See ante at 432.

. The Public Accommodations Statute applies to all “placets] of public accommodation,” and includes therein all “placets] of ... entertainment.” See § 2000a(a) & (b)(3) (emphasis added). Accordingly, I view the majority's assertion that "the styling of Jean Denny’s hair is what this entire dispute is all about” as incorrect and largely irrelevant. See ante at 432. There is no basis for concluding that a "place of entertainment” is freed from the Statute's prohibition against racial discrimination simply because it also provides some service that is not "entertaining.”

. The Latin “ejusdem generis " ("of the same kind or class”) refers to the canon of construction "that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed.” Black’s Law Dictionary 556 (8th ed.2004).

.I agree with the majority that a "place of entertainment” must have a "particular purpose” of entertaining. See ante at 431-32. Accordingly, as I have pointed out (illustratively), an auto mechanic’s shop that provides television for waiting customers is probably not a "place of entertainment” because entertaining is not one of the shop's purposes; the shop is in the business of fixing cars. I disagree, however, with the majority's suggestion that an establishment’s lone "raison d'etre” must be entertaining guests, or that the facility's "amusement and recreational elements” must be "front and center.” See id. at 432. A business can have more than one purpose and, so long as one of those purposes is entertainment, it is, under the Statute, a "place of entertainment.”

. The majority contends that its construction of the Statute is also supported by the Americans with Disabilities Act of 1990, which defines "place of public accommodation” more specifically than the Statute. See ante at 433; 42 U.S.C. § 12181(7). That Congress has spoken with greater specificity in an unrelated, more recent enactment says nothing, however, of how we must interpret the Public Accommodations Statute.

. The majority asserts that this dissent is not supported by any court decisions holding that a "salon” is a "place of entertainment.” See ante at 433. I make two points: (1) the majority fails to point to a single decision ruling that a facility selling massages and calling itself a "spa” is something other than a "place of entertainment”; and (2) the majority's position that the Spa is merely a "salon” finds no basis in this record, and it cannot be established through insistence and repetition only.

. The majority deems factually incorrect the proposition that Elizabeth Arden did things "other than styling hair and providing other beauty services." Ante at 432. Yet, it offers no support for its view that the massages offered by the Spa are necessarily “beauty,” rather than relaxation, services. See id. at 429, 432. Similarly, it fails to explain how the Spa is merely a "salon,” when Elizabeth Arden itself named it as the "Red Door Salon and Spa," that offers "spa packages” entitled such things as "Miracle Morning,” "Red Door Rescue,” and "Executive Escape,” and which include massages.