(dissenting). I dissent. I agree with the trial court that substantial evidence is lacking for the department’s finding that the lodge discriminates against black persons in its membership policy and practices.
The majority state that undisputed facts disclose that membership to the appellant is assured when the investigation of an applicant for membership results in a favorable report. The department made no such finding. I am aware of no evidence in the record to that effect. During the five years preceding the incident no applicant was rejected from membership, but that is a far cry from the majority’s position that membership is assured if an investigation is favorable. The secret vote on membership precludes assurance to any applicant.
The majority point out that there are no black members in the lodge which is located in a community where blacks comprise ten to fifteen percent of the population. True, *477but never before has a black applied for membership in this lodge.
The majority note that the lodge’s method of membership balloting permits one vote to deny membership to an applicant. True, but the question is whether Mr. Dos-sette’s race is the reason two votes were cast against his membership.
The majority state that some lodge members stated their intention to reject black applicants because of their race. The basis for that statement is the testimony quoted by the majority. It is undisputed that the lodge has about 580 members, that the department found that about twenty-five members were present during the vote, and that the record is devoid of evidence that any of the three members identified in the quotation cast a vote on Mr. Dossette’s membership.
I conclude no basis exists for a reasonable inference as to why two unidentified members voted against Mr. Dos-sette’s application. Consequently, substantial evidence for the department’s finding of discrimination is lacking, unless the lodge’s method of voting is condemned as per se discriminatory.
The secret one-vote-veto or blackball method of voting is not per se discriminatory. I would judicially notice that it is used by many fraternal and sororal organizations as well as business and professional partnerships and associations for reasons having nothing to do with discrimination. The department’s ruling in this case means, however, that those organizations may continue to use that method of voting on membership applications by persons who do not belong to a minority group but must abandon it as to applications by members of a minority to avoid a finding of discrimination, whether or not discrimination occurs.
In the absence of evidence indicating that the lodge has adopted the black cube method of voting for the purpose *478of hiding a discriminatory vote, I would affirm the trial court.
I add that I am aware that discrimination can rarely be proven by direct evidence. Had it been shown that the members who made discriminatory comments had voted or that other qualified black persons had been rejected with or before Mr. Dossette, I would have concluded that the department’s findings were supported by substantial evidence.