*2
OOSTERHOUT, Chief
Before VAN
HEANEY,
Judge,
MEHAFFY and
Judges.
Circuit
Judge.
MEHAFFY, Circuit
Rosalyn Kyles, plain-
Doris Daniel
Negro
tiffs-appellants,
and resi-
citizens
County,
Rock,
dents
Pulaski
Little
Arkansas,
refused
admission
Club, a
recreational
County
area of Pulaski
located in a rural
operated by the defend-
and owned and
wife,
Paul,
ant-appellee
his
Euell
Jr. and
brought
Paul.
Oneta Irene
Plaintiffs
seeking injunctive
suit
relief
alleged discriminatory policy followed
an
denying Negroes
use
defendant
enjoyment
facili-
the services
Nixon Club.1 This suit
ties of the Lake
brought
Title
was
a class action under
Rights
1964, P.L.
II of
the Civil
Act
88-352,
seq.,
seq., 78
243 et
201 et
Stat.
§
alleging
seq.,
2000a et
U.S.C. §
“public
the Lake Nixon Club is a
accom-
modation”
term defined
as the
subject
Act,
that, therefore,
it is
provisions.
the Act’s
purpose
of trial this case
For the
brought
awith
similar suit
consolidated
Club,
against Spring
by plaintiffs
Lake
District
was to Chief
Inc. The trial
Judge Henley
Lake
neither
who held that
Spring Lake,
Nixon
Inc. was
Club nor
“public
defined
accommodation” as
and
Rights
Title II of
Civil
covered
dismiss-
and ordered
Act
complaints.
al of
solely
We are concerned
re-
with the court’s decision
gard
Club,
there
since
portion
appeal
no
decision
Judge
Lake,
regarding Spring
Inc. Chief
Henley’s
opinion
pub-
memorandum
City,
Amaker,
York
lished at
412. We affirm.
New
Norman C.
appellants;
Walker,
John
Little
W.
alleged
plaintiffs
com-
in their
Greenberg
Rock, Ark., and Jack
and plaint
is a
Lake Nixon Club
Kirk,
A.
Meltsner and Gabrielle
Michael
public
within the
accommodation
City,
the brief.
New York
were on
seq;
et
of 42 U.S.C. 2000a
Thornton,
Robinson,
Robinson,
it serves
and offers
serve
Sam
Rock,
travelers;
Young,
Ark.,
McCloy
a substantial
Little
&
it serves
appellee.
the food and other items which
accepted
party
trial,
making
Mrs. Paul
was made and
At
oral amendment
action.
commerce;
deprived
rights
in interstate
will be
and uses moves
of his
under the
trade,
travel,
affect
Fourteenth Amendment
to the Constitu-
transportation,
tion of
or communi-
the United States.
among,
through
cation
between
provisions
of the Civil
District of Colum-
several
and the
states
*3
place
public
of 1964 which define “a
of
oper-
bia;
Nixon Club is
Lake
that
the
by
Act,
accommodation”
as covered
the
being
private
guise
of
ated under the
plaintiffs
bring
and which
contend
the
being
solely
purpose of
able
club
coverage,
Lake Nixon Club within its
are
Negro
plantiffs
and
other
to exclude
all
2000a(b),
in
contained
and
U.S.C. §
jurisdiction
persons;
of
and that
provide as follows:
protection of
to secure
is invoked
court
“(b)
following
Each of the
establish-
rights
plaintiffs’
them
and to redress
civil
public
ments which serves
is a
rights, privileges,
deprivation
for the
of
place
public
of
accommodation within
by
Four-
and immunities
secured
meaning
subehapter
of this
its
if
of
Amendment
to the Constitution
teenth
operations
commerce, or if dis-
affect
1;
States,
the Com-
United
Section
segregation by
sup-
crimination or
it is
Clause,
I,
Clause
merce
Article
Section
ported by State action:
the United
3 of
the Constitution
of
“(1) any
hotel, motel,
inn,
or other
States;
1981, providing for
42 U.S.C. §
lodg-
provides
establishment which
per-
rights
equal
and all
of citizens
ing
guests,
to transient
other
than
jurisdiction of the United
within
sons
an establishment
located within a
States;
II of the Civil
and Title
building which contains not more
Act of
42 U.S.C. §
78 Stat.
than five
rooms
rent or hire and
allege
they
seq.,
et
under which
2000a
actually
by
occupied
which is
injunction
they
to an
that
are entitled
proprietor
of
such establishment
restraining
denying them
defendant from
residence;
as his
similarly
admission
and
situated
others
“(2) any
cafeteria,
enjoyment
restaurant,
to and full use and
lunchroom,
counter,
“goods, services,
privileges,
facilities,
ad-
lunch
foun-
soda
tain,
vantages,
facility principally
or other
en-
and accommodations”
gaged
selling
consump-
in
food for
Nixon
Club.
premises,
including,
tion on the
but
The
that Lake
defendant denied
any
facility
to,
not limited
such
lo-
place
public
with-
is a
accommodation
premises
any
cated on the
retail
Act;
meaning
denied that
establishment;
any gasoline
or
sta-
in-
or offers to serve
Lake Nixon serves
tion;
substantial
or that a
terstate
travelers
“(3) any
picture house,
motion
the-
portion of the food and other items which
ater,
hall, sports arena,
concert
sta-
serves and uses
moves
place
dium or other
of exhibition or
commerce;
operations
denied that
af-
entertainment;
trade,
travel,
commerce, transporta-
fect
“(4)
any
(A)
(i)
establishment
tion or
communication
between
physically
which is
located within
through
the Dis-
the several states and
premises
any
establishment
trict of
Columbia within the
subsection,
by
otherwise covered
this
Act;
answering,
and,
further
averred
(ii)
premises
or
within
of which
operates
that defendant
Lake Nixon Club
physically
any
located
such cov-
swim;
large
as a
he
has
establishment,
(B)
ered
money
facility;
amount of
invested in the
serving patrons
holds itself out as
compelled
Negroes
if
he is
to admit
such
covered
establishment.”
lake,
he will lose the business
added.)
(Emphasis
people
compelled
white
and will be
business;
close
of his
the value
will be noted
an establishment
his
categories
property
falling
any
destroyed;
out-
he
of the four
will be
and that
through
points
in the same State but
the Act
is covered
lined above
any
segregation
or
of Co-
other
the District
State
“if
or
discrimination
foreign country.”
supported
action,”
lumbia
which is
State
here,
operations
“if its
not contended
relatively
facts
the case are
commerce.” The criteria for de-
affect
simple
dispute.
and not material
termining whether
af-
an
consisting
property,
meaning of the
commerce within the
fects
acres,
country road sev-
located on a
2000a
forth in 42
are set
U.S.C. §
City
eral
from the
of Little Rock
miles
(c),
follows:
and is
or federal
not close
state
pur-
highway.
In 1962 Paul
his wife
“(c)
establish-
property,
chased
since
this
the mean-
affect commerce within
ment
made
home there
time
their
subchapter
if
one
it is
operated
for recreational
establishments
described
*4
they
purposes.
adopted
club
a
In
(1)
(b)
paragraph
of subsection
prevent
plan
to
undesirables
in order
section;
(2) in
case of
es-
this
thought
facility,
using
no
(2)
paragraph
in
tablishment described
Negro
excluding
simply
no
Negroes,
as
section,
(b)
it
of this
of subsection
sought
A
had ever
admission.2
member-
serves or
to serve interstate
offers
ship
per person per
fee
season was
of 25$
portion of
travelers or a substantial
charged.
only Negroes
ever
who
serves,
gasoline
food which it
or
sought
plaintiffs
were the two
admission
products
sells,
or other
which it
has
young Negro
accompanied
and a
man who
commerce;
(3) in
in
the case
moved
July 10,
them
Nixon on
to Lake
para-
in
an establishment described
facilities,
sought
they
When
use the
graph
(b)
(3) of
subsection
this
membership
Mrs.
them
Paul told
films,
section,
customarily presents
it
candidly
filled,
was
at
but
testified
teams,
performances,
athletic
exhibi-
be-
denied
trial
their admission was
tions,
entertainment
or other sources of
response
cause
to writ-
of their race.
commerce;
(4)
in
and
in
which move
interrogatories
propounded to Mr.
ten
of an
described
the case
discovery
replied
deposition,
Paul
he
(b)
paragraph
of subsection
own
he
wife
and his
exercised their
physically
section,
it
located
this
is
accepting
judgment
applicants
for
premises of,
within the
or there
they
membership
refused
whom
those
premises,
physically located within its
Referring
plaintiffs,
did not
want.
an establishment
Mr. Paul stated:
affect
commerce within
time,
pur-
of this
“At
we
admission
refused
subsection.
For
poses
people
section,
in our
of this
white
because
'commerce’ means
them
travel,
trade,
community
patronize
if
traffic,
us
would
trans-
swimming
Negroes
portation,
we admitted
among
or communication
pool.
ruined
business would
Our
States,
the several
or between the Dis-
savings in
our
life
entire
we
any
trict
State,
of Columbia and
or be-
it.”
any foreign country
any
tween
or
ter-
ritory
possession
any
or
$100,000.00
or
State
Mr.
Paul
and Mrs.
invested
Columbia,
op-
and, although
the District of
property,
between
it
regard,
you put
Now,
In this
Mrs. Paul
testified
this
fol-
at
the time
“Q.
you
:
lows
for
it
do
on a club basis did
Now,
you
excluding Negros?
“Q.
purpose
what
do
have out
there,
Paul, by way
Well, no,
Mrs.
never
there had
facilities for
because
“A.
people
there;
you
there;
do
miles
come out
was five
been
out
operate
addition;
Negro
it as a club?
it was
the closest
íes,
do,
operate
thing
really
“A.
we
we
mind
last
on our
time;
club.
eliminate
had to do it to
we
undesirables.”
during
swimming
only
over,
perhaps participate
sea-
to look it
erated
May
early in some
until
activities.
took her
son-—from
time
She
some
swimming
September depending upon the weather
suit with her.
—it
a substantial and com-
has earned
principal
While the
attraction at Lake
them, producing
for
fortable livelihood
swimming,
had,
also
profits
$17,000.00 an-
net
excess
case,
at the time of
the trial
fif-
nually.
paddle
teen aluminum
boats available for
Daniel,
Plaintiff
Doris
who
Mrs.
lived rent,
juke
coin-operated
boxes,
two
in Little
twelve miles from
Rock some
golf
operated
a miniature
course. Also
Nixon,
witness who
in connection with the business was a
plaintiffs. The
testified on behalf of the
snack bar which
offered
sale ham-
incorporated
pretrial
other
evidence is
burgers,
dogs,
drinks,
milk
hot
and soft
interrogatories and the
answers to
testi-
tea,
but
coffee,
did not
stock
sell
mony of
Mrs. Paul. Mrs. Daniel
Mr. and
cigars,
sugar
cigarettes,
or beer. On
employed
testified
retary
as a
that she
sec- Friday nights
usually
there
would be a
Christopher
Mercer,
C.
Jr.
dance at Lake Nixon with “live music”
She further
that she went
testified
by young
furnished
musicians from the
July 10, 1966,
on about
Club
Little Rock area who were amateurs and
accompanied
girl friend,
Rosalyn
patrons
facility.
also
There is
Kyles,
plaintiff,
and a male
other
ac-
no
played
evidence that
ever
outside
*5
quaintance.
told the attendant
She
at the
con-
locality, but to the
immediate
this
trary
they
admission window
would like
that
undisputed evidence indicates
they
to come in
was advised that
but
they
that
did not.3
lady
would have to
and see
in
wait
response
in
Mr.
stated
Paul further
lady
the next room. Mrs. Paul was the
during
preced-
interrogatories
to
referred,
they
to whom
were
and Mrs.
the Lake Nixon Club
twelve months
Daniel
“she
testified that
asked if we
members;
paper
and we
had
twice in a
stated we
advertised
weren’t;
magazine
May
in
in a local
she said we would
to
time
be
—one
in;
monthly magazine
Rock
members
entitled “Little
to come
and we asked to
get application
apply
membership Today,”
to
for
in a month-
in June
one time
sorry,
ly
and she
paper published
said I’m
but we’re filled
Rock
the Little
up.” This
had
witness
never been
Air
Force Base. Announcements
dances
station,
made on a local radio
before
testified
were also
that she
inviting
advertising
had
heard
members of
club
on the radio
people talking
attend.4
about it
went out
3. Mr. Paul
as follows:
Loved
names of all—
played just
bands
your place
they played,
“A.
“Q.
“A.
“Q.
“Q. Do
“A. Yes.
“Q.
“A.
“A.
“Q.
happened
Well,
Now,
Yes.
Just
Were
Yes,
No.
You
Ones.
testified
on the
you
right here in Little
do
really
did
I’m
we
they
you?
I can’t
you;
you
know whether
had
week
local
pretty
play
don’t know where
have bands out at
what
cross-examination
ends?
bands?
remember
certain
Jacksonville?
Romans,
band
Rock.
those
it?
4. Mr. Paul
cally,
sionals.”
was for members
they mostly
to come and make
during
just played
there and were
[*]
“A. Our
“Q.
“A. Members
“A. Yes.
“Q.
“A.
“Q. You had a lot of different
well, specifically
How
Did
hobby;
testified
Because
[*]
summer?
opening
you
worked
can
Little
only.
they
as follows:
only.
frequently
you
advertise
[*]
they
use of the facilities
statement
Rock?
in town and this
were not
were members
stated that
sure that
[*]
for
out
was basi-
persons
bands?
profes-
there;
[*]
they
it
fountain,
principally
business at Lake Nixon was
or other
food
engaged
selling
According
stipulation
consumption
minimal.
food for
premises,”
operations
parties,
if
its
affect
the net income from food
only $1,412.62
commerce,
concession sales was
but
otherwise.
deter-
mining
for the entire 1966 season. There were
its
affect
100,000
an estimated
admissions to Lake
we must
look to 42 U.S.C. §
during
(c),
provides
opera-
Nixon
the season
food
2000a
which
and the
insignificant
sold there
minor and
tions of
com-
was a
an establishment
affect
testimony
of the business.
was merce within the
sub-
chapter
the club was not in
food
case of an
business
merely
paragraph
but
had
snack bar
a nec-
described in
of subsection
essary adjunct
(b),
those who
if it
in-
serve
wished
“serves or offers to serve
during
por-
to refresh themselves
an after-
terstate
a substantial
travelers or
evening
serves,
gaso-
participation
noon or
tion of the food which it
products
sells,
various
line or other
it
forms of recreation
offered—
has
swimming, boating,
golfing, or
miniature
moved
commerce.”
dancing.5
The trial court found that
there was
Lake
district
court
found that
no evidence that
Club
private
Nixon was not a
club but was
has ever tried to attract
interstate travel-
simply
privately
owned accommodation
such,
ers as
and that
the location of the
general
operated
profit
open
facility is such
would be of the
to all
of the white race. The
members
highest degree unlikely that an interstate
court further
found that
defendants
trip
pur-
traveler would break his
for the
were excluded on account of their
race
pose
utilizing
being
facilities,
but
the Lake Nixon Club did not
country
located on a
road remote from
categories
fall within
of the four
des-
highway.
either
a federal or a state
ignated by Congress
“public
accommo-
regard
served,
With
to the food
the trial
dations” which
affect
within
*6
court reasoned that since
cate-
the second
Rights
the
of the Civil
of
Act
gory
“princi-
consists of establishments
therefore,
and,
the Club was not
pally engaged” in the sale of food for
subject
provisions.
agree
to its
We
consumption
premises
on the
and since
the court’s conclusion.
food
principal
sales are not the
business
Club,
of the Lake Nixon
not be
it would
Plaintiffs
do not contend that
category.
included
In
the second
Lake Nixon falls within the first cate
gory pertaining
hotels, motels,
this
inns,
connection,
the
the
court held that
They do, however,
etc.
single
contend that
the Lake Nixon Club was
unitized
remaining categories bring
three
operation,
with
with the sale
food and drink
of
Act.
the
being merely adjuncts
principal
to the
pointed out,
As
making
hereinbefore
sec-
the
business of
recreational
facilities
category
restaurant,
“any
ond
public,
that,
includes
available to the
there-
cafeteria,
lunchroom,
counter,
lunch
fore,
soda
it would not come within the fourth
only?
“Q. For members
5. Mr. Paul
testified on cross-examination
“A. Yes.”
as follows:
Mrs. Paul
testified as
“Q.
follows:
But
from
sales
sandwiches and
large degree
“Q.
I
there
believe
has been some
the like did account
for a
you
your gross sales;
evidence introduced
the ads
had
is that
true?
radio,
No, very
over the
were those ads addressed
“A.
minor what we make
that;
just
commodity
to members
the club?
off of
food was
“A.
peole
Members of Lake Nixon.
to have there for
the
if
it;
To
“Q.
members of Lake Nixon?
wanted
I mean we were not
“A. To all members of Lake Nixon it
business —there
food
was no restaurant
usually
just
necessity.”
ran.”
—it was
category making
applicable
meaning,
Act
to an
which the
defined as
court
“something
covered or with-
follows:
otherwise
real worth
importance;
premises
physically
value;
lo-
valu
of which
considerable
able; something
establishment.
distin
cated
such covered
worthwhile as
guished
something
without value
regard
With
a substantial
merely
or
nominal.”
Newman
of the food
case, the
court
district
held that the five
serves has
trial
moved
Piggie
belonging
drive-in restaurants
court found that food
soft drinks
Enterprises, Inc.,
Park
all of which were
purchased locally by the
were
Club but
highways,
located on
near
or
interstate
noted that
before
court
the record
by
not covered
Act because the
did not
suppliers
disclose where
how the local
evidence
showed
less than
products.
50%
obtained the
premises,
the food
was eaten
but
court further
observed
meat
Appeals
re
Fourth
Court of
Circuit
products
may
sold
the defendants
versed,
construing
holding
test
may
raised,
not have
come
animals
provision
the Act
was not whether
slaughtered,
processed
in Arkansas.
principal portion
a
ly
of the food was actual
It also made an observation that
premises
consumed
but whether
used
bread
in the sandwiches was baked
engag
principally
the establishment was
packaged locally
judicial
but took
selling
ready
ed in the business of
food
ingredients
principal
go-
notice that the
consumption
premises.
on the
produced
into the bread were
processed in other states. This observa-
Restaurant,
In Willis v. Pickrick
part
court, however,
tion on the
(N.D.Ga.1964),
where
entirely voluntary,
ingredi-
was
and the
gross receipts
restaurant had annual
ents
the bread would not
constitute a
from its
$500,000.00
of over
part
substantial
of the food
preceding year
served. We
for the
purchases
and its
might
matter of common
add that
is a
food
$250,000.00,
exceeded
court
knowledge
Arkansas,
that Borden’s
large
found that a
of this
substantial
supplied the
which the record shows
milk,
originated
from without
amount
food
unprocessed milk for its
obtains the
that, therefore,
it affected
state and
plant
dairy
local
from Arkansas
farmers.
Furthermore,
commerce.
there
while
actually
that it
served
little evidence
Looking
legislative history of
travelers,
the evidence
the Civil
for an indication
clear
rea-
that it offered
serve them
regarding
proponents of the bill
what the
signs
large
son of the
that it
fact
had
intended
the use of word “substan
*7
highways,
restau-
on two
and the
federal
2000a(c),
in
that Robert
tial”
we note
route
rant itself
the main
was on
business
Attorney
Kennedy,
then
F.
who was
Gen
41,
highway.
of U.
federal
S.
interstate
expressed
eral,
opinion in-the hear
ings on
S. 1732 before
Senate Com
(5th
Gregory Meyer,
In
v.
rower than
al
S.
the bill
court’s rationale or with its utiliza-
Committee,
ejusdem generis
tion
the Senate Commerce
of the rule of
general
arriving
which
conclusion,
covers the
run of retail
at its
but our
view
* * *
(c)
The deletion
establishments.
subsection
the statute
so
coverage
plainly
of retail establishments
defines the
that affect
generally
illustrative of the moderate
is obvious that Lake
nature
bill and of
proscribed by
of this
its intent Nixon’s activities are not
problems
argument
deal
with the
Act. Plaintiffs’
Cong.
urgently require
applies
solution.”
premise
is based on the false
Rec. 6533.7
that a “substantial
of the food
through
sold has traveled
interstate com-
Humphrey
Additionally,
stated:
Senator
merce,”
wholly unsupported by
which is
discriminatory
course,
“Of
there are
Treating
the evidence.
false as-
practices
reached
but
H.R.
sumption
fact, plaintiffs
as a
then con-
expected
hoped
it is
to be
operation
clude that “the
of the snack bar
largely disappear
will
the result
n
affects commerce within the
salutory
voluntary
taken in the
action
201(c) (2) of
Title II.”
atmosphere
created
enactment
Cong.Rec.
the bill.” 110
6567.8
Enterprises,
Miller v. Amusement
Inc.,
(5th
1967),
cause it cent of the counter accounted it. that a court Nixon Club were course. Supp. dation within Id. at 476. court held that Inc., entire amusement public In Evans Via the Commerce Clause —The tenmeier) Majority Views, News, commodation. [*] premises of which is located a covered vides that Regulation on the In Adams Rights “The 88th course within the § (1965).” It did 2000a(b) -X- said: 474 golf Cong., gross -X- location had a (Lunch pp. 2409, accommodation premises brings Act of n (E.D.Va.1966), course was a v. gross receipts U.S.Code v. income.) of Public 2d Sess. Laurel (4) lunch counter the snack bar located 1964,19 Fazzio Real Estate establishment within counter even See H.R. meaning approximately Hon. Robert W. 2410 (A) Act under 42 park Links, Inc., (E.D.La.1967), (1964) (additional 3 though Cong. Accommodations public receipts at Lake Sw.L.J. (ii) (1964); Rasor, under the court the entire In lunch counter of the Rep. fifteen Evans, a & Admin. located public accommo- No. place 329, Act be- .U.S.C. 261 22.8% found lunch Civil Kas- Act. pro- 914, golf golf Co., per ac- F. within 201(b) stated: the tional the entire operated on as be considered a 428 counters of the and the additional Id. at 638 racial discrimination Rights Act, and that the defendant would ed lunch stated that retail [of] magnetizes part of the revenues of the establish- test, tial ment. sales are occupies majority, ment “The statute In Furthermore, race long enjoined premises (E.D.Va.1966), Scott v. counter) department stores which contain facility, the covered establishment which or color. and it otherwise entry establishments * * (footnote which it is facility “would major of the “Section Young, the non-covered establish- eating the entire * * House contains no any person an order premises public denying views or even a substantial covered bowling alley brought stores premises, include, omitted). under *.”5 12 Race necessary of the establishment was * * physically 201(d) precludes Report covered parties even accommodation providing facility (operating the Act. public on the basis *. or that percentage 1964 title a substan- Rel.L.Rep. 914 equal a recrea- minority example, to show consent- under * * * located stated would II;” lunch Civil use its Maryland victed in a State Court of dis L.Ed.2d 300 85 S.Ct. U.S. orderly and disturbance conduct stating (1964). In the course peace. having previously After remanded quoted view, the observations he made Appeals, the case the State Court of above. Supreme dismissed a subse Court quent appeal grant gross certio and refused to sales income food Warren, joined compared $10,468.95, rari. Mr. a total Chief Justice Douglas, $46,326. dissented and gross Mr. Justice income of granted In the certiorari. would Committee) (Judiciary Report No. 4. House discussing legal in issues course of pp. Ad.News, Cong. & 1964 U.S.Code volved, noted al Justice the Chief 2391, 2396. though Act was the 1964 Civil passed of the con the occurrence Hon. after on H.R. Views Additional prose McCulloch, duct for which the defendants V. Hon. John M. William pending cuted, Cahill, con Lindsay, abated the the Act Hon. T. Hon. William Shriver, City Hill, Hon. Mac- E. Clark Hamm v. of Rock Garner victions.
129 Scott, though operated by Evans, Adams even In Drews6 and some inde- pendent person entity [Emphasis the lunch coun- the records indicate that or 7 ter and the recreation were own- added].” by entity operated ed the same and as facility.
one coordinated majority opinion of this Court does not base its decision on the rationale Pinkney The District Court relies on v. of the District Court Meloy, (N.D.Fla.1965), 943 not is a covered establishment within support holding coun- that a lunch 201(b) (2) (4). separate (ap- §§ ter must be a ground, owned) parently It separately relies instead on an alternative to evoke 201§ (b) (4). There, the court that a namely, held that even if is otherwise cov- shop not barber could discriminate ered, proof “There is a total lack of hotel, it was located within a which Lake Nixon Club served or offered covered The bar- establishment. serve interstate travelers or that a sub- separately owned, shop ber but that stantial of the food served moved Pinkney fact was not critical deci- in interstate commerce.” One of these legislative history the Act sion. The must, necessity, elements be establish- gives example precise an fact situ- bring ed to the Club within the Act.8 Pinkney: ation involved in decision, I read As the District Court’s' beauty barbershop parlor “A hotel or making specific finding it avoided integral hotel,
would be an Arkansas, including, Mathias, State of Gregor, but not Hon. Hon. McC. Charles * * * to, restaurants, restricted Bromwell, Cong. E. James U.S.Code * * dining counters, *, Ad.News, 2487, room or lunch & 2494. places or other of entertainment State, 186, Md. A.2d Drews v. including public parks amusement, (1961). * * swimming pools, hereby *, is Committee) Report empowered (Judiciary authorized and Senate to choose 872,1964 Ad.News, Cong. person persons & or select No. U.S.Code or he pp. 2355, with, or it desire to business 2358-2359. do is empowered further authorized and de- 8. It need not be established upon to, refuse any person sell wait or serve “operations affect com- fendants’ food owner, manager or practices by discriminatory if the merce” employee public place of such of busi- “supported by the defendants were state to, does not ness desire to sell wait theory A state action action.” * * upon serve; or argued. alleged not nor case was Annotated, Arkansas Statutes Vol. 6A specifically The 1964 Civil (1967 Supp.). by “supported action:” state defines supported by The statute is further crim- (d) segregation Discrimination or “§ inal sanctions: by by supported is an establishment “§ 71-1803. Failure to leave after meaning of this action within the State subchapter person request Penalty.—Any who — discrimination or if such public place enters a of business (1) segregation under is carried on State, upon premises or there- statute, ordinance, any law, or color of, requested and is or to leave ordered (2) regulation; or carried under owner, manager, therefrom or usage required any or custom color of any employee thereof, and, after hav- of the State or officials enforced requested been so or ordered to (3) thereof; political or subdivision or leave, do, guilty refuses so to shall be required or action of the State trespass upon of a conviction there- political thereof.” subdivision for shall be than five fined not more give purports statute An Arkansas ($500.00) impris- hundred dollars or right jail (6) to descriminate: omnibus oned than six more Right cus- months, imprison- to select 71-1801. “§ or fine both such Every per- patrons tomers, p. [Acts ment. No. clients. — engaged corporation son, 1007.]” firm or profes- any business, Annotated, public Arkansas Vol. 6A trade Statutes (1967 Supp.). kind whatsoever sion period; inter- Rock area in the Club offered to serve it in- same however, did, state: serted one advertisement in the “Little state travelers. Base,” monthly Air Rock Force news- probably true out-of- that some “It published paper Rock the Little Air *12 spending people time in or around state Jacksonville, Base, Force at Arkansas. Nix- Rock have utilized [Lake Little clear, pointed It as is out ma- on Club facilities].” jority opinion, that the advertisements statement, my view, constitutes This to were directed It is thus “members.” specific finding the a clear and that argued that would interstate travelers was Club served interstate travelers and having not consider the been invitation as satisfy in and of the sufficient itself to agree. addressed to them. I cannot The requirement the interstate commerce membership clearly idea a ruse was to (2).9 201(c) Act set forth in Since § keep Negroes using the Club. satisfied, is Club the requirement is this obviously by understood to be such was covered. living people area, the Rock the Little and there is little reason to doubt that necessary find addi- to not is While it sophisticated. nonresidents would be less satisfy grounds to the tional appears, media, It also from the choice also Act, record requirements message that the to was intended reach Club supports that the conclusion as nonresidents well as local citizens. interstate travelers offered to serve No other sound be reason can advanced (1) on advertised commerce: the Club using promote mass media to “enter- Thursdays Wednesdays, KALO radio “private” at a tainment” club. May Fridays last from the (2) through September;10 it the 7th The District Court rationalized that “Little one inserted advertisement the Club was not a of exhibition 201(b) (3) magazine, Today,” monthly in- entertainment as a Rock not intended dicating the Little to facilities cover where available attractions sug- (b) Tlie reverse advertisements did not I the fact that would In view of necessary gest grounds, to that an traveler could interstate it not other is plain member; become a express a view to (c) sign posted prima is There no case facie tiff has made by member- supported entrance restricted action is state discrimination only ship showing simply to residents. 201(b) (I) by Arkansas under § (2) guests. brought Members discriminated the defendant only (3) appears right. to explicitly gave be him that statute eight to Company, about six road miles Cf., H. Kress & v. S. Adickes only highway Little federal between (S.D.N.Y.1966). Fur 140 Springs. express necessary Rock and Ilot thermore, it is not opinion defense to whether copy 10. The radio read as follows: ' would defendant to establish . “Attention . all members regardless stat the state Nixon. discriminated Lake Attention all members of your Inc., Shoppes, Nixon. re- answer v. Hot ute. Williams quests, happy U.S.App.D.C. Mr. Paul announce F.2d 846- Saturday night (1961) (dissenting opinion), dances will be con- cert. 847 denied, Saturday night . . tinued . 82 S.Ct. U.S. Villagers, great (1962). music with L.Ed.2d you band all and have asked to know District Court 9. The conclusion again. hear their Lake Nixon continues support from the follow- draws additional policy you year-round offering en- ing facts: play Villagers tertainment. attempts (1) defendants made no big Saturday night and, dance specifically travel- exclude course, jam Sun- there’s session : ers day swimming, afternoon . . also . (a) membership not re- did card boating, golf. That’s miniature quire applicant sign ad- his Lake Nixon.....” ; dress people enjoy swim- came to themselves ming, golfing, boating picnicking. Augustin NOVEROLA-BOLAINA, It reasoned that the intend- Petitioner, patrons apply ed to to a situation “where v. edified, entertained, came thrilled IMMIGRATION AND NATURALIZA- capacity spectators or amused their SERVICE, Respondent. TION unnecessary or listeners.” While No. 21056. here, majority to reach this issue Appeals obliged United States Court opinion it, reaches and thus I feel Ninth Circuit. to. May 2, 1968. majority: I cannot concur *13 is difficult Club It to conclude
was not a when entertainment
the defendants it in those characterized
terms their radio advertisements: policy “Lake Nixon continues of of- their
fering you year-round entertainment.” also, supra.
Footnote 10, Miller v. See Enterprises, Inc.,
Amusement F.2d (5th April Civ. No. 24259 Cir.
1968) (en reversing banc) (E.D.La.1966). equally operation
difficult to conclude that affect Club did with- 201(c) (3), for the specifically District Court found that
juke boxes, which furnished music dancing listening, were manufactured Arkansas,
outside of that some of the played records on them were manufac- Arkansas,
tured outside and that equipment
of the other recreational (aluminum
apparatus paddle boats surfboards) brought into
“Yaks”—
Arkansas from without the state. paddle
fact that aluminum boats (surfboards)
the “Yaks” been could have my judg- is, in Arkansas
manufactured
ment, not material when the District
Court found the record shows that purchased11 were leased imported in-
an Oklahoma concern and
to Arkansas. appears company. “A. Prom
11. It record that the same purchased company “Q. rather than What Aqua “Yaks” were is that? Company. “A. Boat leased: you “Q. Who? “Q. Do other kind Aqua Company. “A. Boat boats there? yak. Company? call Is “Q. “A. have what we a that a We local yak? yak; No. “A. A “Q. what’s “Q. Where “A. Its surfboard. it? similar surfboard; you they’re Oklahoma, “A. I do believe Similar “Q. you purchased that? Bartlesville.” know where