concurring.
I concur in the results reached in the lead opinion, however, I write separately because, in my view, neither the lead opinion nor the dissent articulates precisely the determinative issue in this case.
I agree with the position of the lead opinion that the pre-requisite for a prima facie ease is evidence that access to a public accommodation was denied, and denial can be shown by evidence of disparate treatment that deterred access. Under this rule, there must be actual denial of access or disparate treatment that deterred access. “Deter” is defined as “to discourage or stop by fear.” Black’s Law Dictionary 460 (6th ed. 1990). Consequently, even where there has not been actual denial of access, evidence of disparate action that discourages, as distinguished from denies, the use of a public accommodation establishes a prima facie case.
I also agree with the lead opinion that targeting specific classes or groups of persons as customers is permitted. That targeting may lawfully be accomplished by the selection of music. The selection of music played in a public place obviously does not deny access. Nor is it disparate action, even if it is intended to encourage or discourage utilization by particular persons or groups, because all patrons are treated the same even though the effect on all persons will not be the same. The language in the lead opinion that “patrons were affected equally by the music selection policy” is misleading. It did not affect all persons equally, nor was it intended to affect all persons equally. There is evidence that the music played was intended to discourage black persons from patronizing the club. This intent implemented was a permissible “business-based attempt to appeal to a selected segment of the general market” as stated in the dissent.
Consequently, intent to discriminate cannot be determinative, as suggested by the dissent. I agree with the dissent that evidence of intentional, unlawful conduct estab*688lishes a prima facie case. I also agree with the dissent that the intentional effort to deny full and equal enjoyment because of race is a violation of the statute even though the effort may be subtle or insidious. However, conduct which merely discourages access is not unlawful unless it is different in kind based on the race of the persons to whom it is directed. While all agree with the dissent’s position that proof that a practice was designed to deny access establishes a prima facie ease, I cannot agree with the dissent’s position that a prima facie case is established by proof that a practice was designed to dissuade or discourage the exercise of the right of access. Conduct designed to deny access based on race is prohibited, and disparate conduct based on race designed to dissuade or discourage utilization is prohibited. But conduct based on race designed to dissuade or discourage utilization is not prohibited.
In this case there is no evidence of conduct designed or intended to deny access, nor is there evidence that there was disparate conduct directed toward black patrons. Consequently, summary judgment for the defendant was appropriate.