Appellants sought injunctive relief under the Civil Rights Act of 1964, 42 U.S. *510 C.A. § 2000a-3, against the defendants, owner and manager of the Burger. Boy Drivе-In Restaurant of Savannah, Georgia. It was contended that the restaurant was a place of public аccommodation within the meaning of the Act and that appellants, members of the Negro race, werе denied service. The defendants admitted that they refused to serve Negroes but denied coverage. The District Court denied relief, holding that the restaurant was not within the coverage of the Act.
The Act provides, in pertinent part, as follows:
§ 201 (42 U.S.C.A. 2000a(b) (2) and (c)):
(b) Each of the following estаblishments which serves the public is a place of public accommodation within the meaning of this sub-chaptеr if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
♦X- * * * * *
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principаlly engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; * *
* * * ’ * * *
(c) The operations of an establishment affect commercе within the meaning of this subchapter if * * (2) in the case of an establishment described in paragraph (b) of this section, it serves or offers to serve interstate travelers or a substantial portion of the food which it serves * * has moved in commerce; * * *.
It will thus be seen that coverage of the restaurant depends on any one of three fаcts having been established: (1) that it serves or offers to serve interstate travelers, or (2) that a substantial portiоn of the food which it serves has moved in commerce, or (3) that the discrimination or segregation is supported by state action.
There was no showing that the discrimination was supported by state action. The proof, however, was more than ample otherwise and we reverse. Only the factual conclusions reached are in dispute. There is no dispute as to the underlying facts. The conclusions of the District Court that the restaurant did not offer to serve interstate travelers, and that the proof did not establish that a substantial portion of the food served had moved in interstate commerce are clearly erroneous.
The restaurant in question was located three blocks from a federal highway and was on a street which was an extension of the highway. All comers, except Negroes, were served. The Act covers a restaurant that offers to serve interstatе travelers. As the Supreme Court of Georgia said in a similar case:
“As a public eating place, this drive-in’s offer to serve everybody, without qualifieaton or limitation, who desires to purchase food from it, except Nеgroes, is unquestionably the holding out of an offer by it to serve white interstate travelers.”
Bolton v. State, 1964,
There the restaurant was оn the highway; here it is in such close proximity to the highway as to make it probable that it will have interstate patrоns. The testimony was that customers were not questioned as to tourist status, and that tourists were not rejected as сustomers. One white interstate customer was served without inquiry as to his status. As the United States points out in an amicus curiaе brief, this is not the “isolated or remote lunchroom” referred to in Heart of Atlanta Motel, Inc., v. United States, 1964,
The District Court found also that the proof did not establish that a *511 substantial portion of the food which the restaurant served had moved in commerce. The proof did not show the total dollar amount of the food served in the restаurant which had moved in interstate commerce. It did show that the restaurant had annual sales of $70,856. These included sаles of coffee and tea in the amount of approximately $5,000, which coffee and tea had moved in interstate commerce. It showed that its main dish was hamburgers. Two-thirds of its sales volume consisted of beef products which came to Savannah from Augusta, Georgia. The meat packer in Augusta purchased twenty to thirty per cent of the cattle used in its operation from South Carolina. The restaurant used additional products in its serviсe which had moved in interstate commerce including grits, hot cake and waffle batter mix, cereals, mayonnaise, pickles, tomato juice, chili sauce, beans, gravy bases, macaroni, rice, peas, tobasсo sauce, soups, extracts, flour, cookies, and catsup.
This proof brings the case within the rationalе of Katzenbaeh v. McClung, 1964,
The District Court erred in granting summary judgment for the defendants, and in having failed to grant summary judgment for appellаnts. The restaurant offered to serve interstate travelers within the meaning of the Act. Also, a substantial portion of the food it served had moved in interstate commerce.
Reversed and remanded with directions to enter summаry judgment for appellants.
Notes
. See legislative history to the effect that the Act uses the term “substantial” as meaning anything more than a minimal or insignificant amount. Hearings on S. 1732 before the Senate Committee on Commerce, S.Rep.No. 872, 88th Cong., 2d Sess., pp. 171-173, 212, 229.