MARY ANN WARFIELD, Plaintiff and Appellant, v. PENINSULA GOLF & COUNTRY CLUB et al., Defendants and Respondents.
No. S031285
Supreme Court of California
June 29, 1995
10 Cal. 4th 594
Belli, Belli, Brown, Monzione, Fabro & Zakaria, Melvin M. Belli, Kevin R. McLean, Shelley R. Antonio, Vincent M. O‘Brien and Randall H. Scarlett for Plaintiff and Appellant.
Jon W. Davidson, Sharon Oxborough, Paul L. Hoffman and Carol A. Sobel as Amici Curiae on behalf of Plaintiff and Appellant.
Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Robert F. Kane, Paul D. Herbert and Stacey L. Pratt for Defendants and Respondents.
Severson & Werson and Jan T. Chilton as Amici Curiae on behalf of Defendants and Respondents.
OPINION
GEORGE, J.—In the case before us, we are called upon to determine whether California‘s “public accommodation” statute (
Section 51 provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Italics added.) The issue we must decide is whether the activities and operations of defendant club render it a “business establishment” for purposes of section 51, so as to prohibit the club from excluding women from the “advantages” and “privileges” of proprietary membership.
We emphasize at the outset that our resolution of the legal issue before us does not turn upon our personal views as to the wisdom or morality of the exclusionary membership policy challenged in this case. Instead, our task involves a question of statutory interpretation. The question before us is
As we shall explain, although the language of section 51, its historical background, and the past decisions of this court interpreting the statutory provision establish that a truly private social club generally would not constitute a “business establishment” within the meaning of section 51, we conclude that the operations of the club here at issue bring it within the terms of the very broad language of the statute (“all business establishments of every kind whatsoever” (italics added)). As we shall see, although the record indicates that defendant‘s financial support comes primarily from dues and fees paid by its members, the club derives a significant amount of revenue, as well as indirect financial benefit, from the use of its facilities, and the purchase of goods and services on its premises, by persons who are not members of the club. Because such “business transactions” with nonmembers are conducted on a regular and repeated basis and constitute an integral part of the club‘s operations—supplementing the members’ own financial contributions and reducing the dues and fees that members otherwise would be required to pay in order to maintain the club‘s facilities and operations—we conclude that the club falls within the very broad category of “business establishments” governed by the nondiscrimination mandate of section 51. Additionally, in light of the nature and specific purposes of defendant club, we reject its argument that application of section 51 to the membership policies of the club would violate its members’ rights of association and privacy under the federal and California Constitutions.
I
The facts underlying this litigation are largely undisputed. Defendant is a nonprofit social and recreational club that is owned and operated by a portion of its membership. Its facilities include a golf course, a driving range, putting greens, tennis courts, a swimming pool, locker rooms, a clubhouse, a dining room, several bars, a ballroom, and golf and tennis “pro” shops. In 1981, the relevant time period for purposes of these proceedings, the club had a number of categories of membership, each carrying its own distinct set of privileges with regard to use of the club‘s facilities.2 At that time, the club had 350 proprietary members and approximately 350 additional members holding other categories of membership. Because most
In 1981, the facilities of the club were, as a general rule, available for use only by club members, their spouses, and their children under the age of 21 years, as well as the invited guests of members. There were, however, a number of exceptions to this general policy.
First, the golf and tennis “pro” shops, which were housed in structures located on the club‘s premises and owned by the club, were open to the general public as well as club members. Although the golf and tennis professionals who operated the pro shops received a monthly retainer from the club, the professionals were considered independent contractors under their agreements with the club, and they owned and had full control over the pricing and sale of the merchandise carried by the pro shops. As noted, nonmembers as well as members were permitted to enter the club‘s premises
Second, in addition to permitting nonmembers to use the facilities and services of the golf and tennis pro shops, the club also allowed the use of many of its facilities by nonmembers as hosts of, or participants in, “sponsored events,” such as golf or tennis tournaments, wedding receptions, bar mitzvahs, fashion shows, and special luncheons and dinners. These sponsored events were held, on average, once a week. For a nonmember (typically the friend of a member, or a charitable or professional organization) to host such an event at the club, the event had to be sponsored by a member. The sponsoring club member assumed responsibility for the event, but charges incurred for the event often were billed directly to the nonmember hosting the event. The charges assessed by the club for sponsored events were based upon the facilities of the club that were to be used. For example, an extra charge would be assessed if the participants in a golf tournament at the club were allowed to use the club‘s tennis courts as well. Although the record does not reflect the specific amounts typically charged by the club for such sponsored events, it does indicate that, at sponsored or “outside” golf tournaments, the greens fee charged by the club for each participant was higher than that charged at other times. Participants at sponsored events also could purchase food and beverages from the snack bar and other dining facilities on the club‘s premises. A club employee testified that there was a “mark up” on all food and beverages sold at the club.
Third, in addition to the use of the club‘s facilities by nonmembers in connection with the pro shop operations and with “sponsored events,” nonmember employees of the club generally were permitted to use the facilities on Mondays, when the club was closed to members; the record does not suggest, however, that club employees were required to pay for such use. Fourth and finally, the record discloses that the club also permitted the golf teams of several local high schools to use the golf course, free of charge, during limited, nonprime hours.
When members used the club facilities or the pro shops, they paid for goods and services provided by the club (such as food and beverages, or
A number of club members testified that, on occasion, they brought business associates (clients or employees) to the club as invited guests, either for meals or for recreational activities, and that their businesses sometimes paid for the expenses involved in such occasions. Several club members also testified that, through their membership in the club, they had met other members who thereafter had become their patients, clients, or customers. Virtually all of the members who testified at trial stated, however, that they joined the club for its social and recreational attributes, not for its potential value for business purposes, and emphasized that they generally viewed the club as a refuge from, rather than an adjunct to, the business world.
In 1981, the club employed between 80 and 110 employees, all under the supervision of a general manager. Committees composed of members oversaw various club activities and operations.
As already noted, the club had numerous categories or classes of membership and had a total membership of approximately 700, but the only
The selection process for granting all memberships in the club, including Regular Family Memberships, was as follows. The club did not advertise to, or solicit membership applications from, the general public, and a nonmember could apply for membership only if sponsored by an existing member. An application also had to be seconded by two other members. The membership proposal then was reviewed by the membership committee, which received from the prospective member a form or questionnaire providing references, prior club memberships, and other personal and financial information. The membership committee investigated the information, conducted a credit check, and interviewed the prospective member and family at the home and place of business of the prospective member. After this process was completed, the membership committee voted on the candidate; two negative votes disqualified a candidate from further consideration. Upon approval of that committee, the membership proposal was sent to the board of directors, which sought input on the proposed member from all of the other proprietary members of the club. If any objection was raised, the membership proposal was sent back to the committee for further investigation. If no objection was received, or if any complaint was found to lack merit, the membership proposal was submitted to the board of directors for final approval.
Plaintiff in the present proceeding, Mary Ann Warfield, an avid golfer whose father had been a golf professional, became interested in the club after participating in golf tournaments held there and playing as a guest of several members on a number of occasions. After her family moved to a house that was only a few minutes from the club, she suggested to her husband, Richard Warfield, that a membership would be “great for the family.” In June 1970, Richard Warfield was proposed for a Regular Family Membership. The membership proposal proceeded through the customary procedure, and a Regular Family Membership was approved by the board of directors and issued in the name of Richard Warfield on July 23, 1970. The initiation fee of $7,200 and monthly dues (which varied but, in 1981, apparently were in the range of $135) were paid by the Warfields with community funds, and plaintiff and her children thereafter regularly used the club facilities as family members without restriction.
As her children grew up, plaintiff‘s participation in club activities increased. She was an active member of the “ladies golf team” that represented the club in league competition with other country clubs, and, in several years, plaintiff won the championship in the club‘s annual ladies golf tournament. She had many close friends at the club, and she and her children spent much time there.
In 1976 or 1977, plaintiff obtained a real estate license and secured her first job as a real estate agent through a friend at the club. Thereafter, the
In 1981, the marriage of plaintiff and her husband was dissolved. In the interlocutory judgment of dissolution, plaintiff was awarded “all right, title and interest in and to the membership of Dr. and Mrs. Warfield in the Peninsula Golf and Country Club.” Thereafter, plaintiff requested that the board of directors transfer to her the Regular Family Membership previously held by her husband. After consulting legal counsel, the board voted in April 1981 to terminate the Regular Family Membership pursuant to the relevant provisions of the bylaws, and tendered to plaintiff a check in the amount of $6,129.15, representing the redemption value of the membership. Plaintiff responded by asking the board to reconsider the termination, and returned the redemption check without endorsement.
The board reviewed the matter, but in October 1981, despite a recommendation of the club‘s membership committee favorable to plaintiff‘s request, the board reaffirmed its prior action and refused to reinstate the Regular Family Membership in plaintiff‘s name, expressing its view that the governing bylaws precluded issuing her a proprietary membership. At the same time, however, the board adopted a resolution creating a new class of nontransferable, nonproprietary membership for persons, such as plaintiff, “who desire to use the golf club facilities, but who do not otherwise qualify for regular membership,” and set the initiation fee for this new class of “golfing membership” at $10,000. (At that time, the initiation fee for a new Regular Family Membership was approximately $15,000.) The board invited plaintiff to apply for membership as a “golfing member under this new class of membership.”
Plaintiff declined to accept the board‘s offer of what—on the basis of her status as a woman—she considered “second class citizenship membership” in the club. Plaintiff did not return to the club as a member after November 1981, and testified at trial that her real estate business suffered as a result of her loss of club membership.
Thereafter, plaintiff filed a complaint for damages and injunctive relief against the club and its board, alleging, among other causes of action, that the club‘s exclusion of women from proprietary membership and its action
In the initial appeal in this matter, the Court of Appeal reversed the judgment of dismissal as to the causes of action alleging a violation of the Unruh Civil Rights Act and a denial of the common law right of fair procedure, concluding that, on the basis of the facts alleged, it could not be determined as a matter of law that the club‘s actions were not subject to the Unruh Civil Rights Act or that plaintiff‘s common law right of fair procedure had not been violated. (Warfield v. Peninsula Golf & Country Club (1989) 214 Cal.App.3d 646.) The Court of Appeal remanded for a trial on those two causes of action. We denied defendant‘s petition for review.
The case went to trial on remand in September 1990.6 Following the presentation of evidence disclosing the facts described above, the trial court granted the club‘s motion for a directed verdict, concluding that (1) plaintiff had failed to prove that the club was a “business establishment” within the meaning of the Unruh Civil Rights Act, and (2) plaintiff lacked standing to pursue a claim for denial of the right to fair procedure. In the second appeal, the Court of Appeal affirmed the judgment in favor of the club.
Plaintiff then sought review, limiting her challenge to the Court of Appeal‘s holding that the club did not constitute a business establishment for
II
In analyzing the issue whether the club constitutes a “business establishment” within the meaning of section 51, we begin with a brief review of the background and history of the Unruh Civil Rights Act and then proceed to a discussion of the past decisions of this court that bear most directly upon the question before us. With that background in mind, we shall better be able to set forth and evaluate the specific contentions made by the parties and their respective amici curiae.
A
The origins and background of section 51 have been discussed at some length in a number of our prior decisions (see, e.g., In re Cox (1970) 3 Cal.3d 205, 212-216; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1150-1154), and, for present purposes, we believe it is sufficient briefly to summarize that history.
The general policy embodied in section 51 can be traced to the early common law doctrine that required a few, particularly vital, public enterprises—such as privately owned toll bridges, ferryboats, and inns—to serve all members of the public without arbitrary discrimination. (See generally, Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1250.) After the United States Supreme Court, in the Civil Rights Cases (1883) 109 U.S. 3, invalidated the first federal public accommodation statute, California joined a number of other states in enacting its own initial public accommodation statute, the statutory predecessor of the current version of
In 1959, in apparent response to a number of appellate court decisions that had concluded the then-existing public accommodation statute did not apply to the refusal of a private cemetery, a dentist‘s office, and a private school to make their facilities available to African-American patrons (see Long v. Mountain View Cemetery Assn. (1955) 130 Cal.App.2d 328; Coleman v. Middlestaff (1957) 147 Cal.App.2d Supp. 833; Reed v. Hollywood Professional School (1959) 169 Cal.App.2d Supp. 887), the Legislature undertook, through enactment of the Unruh Civil Rights Act, to revise and expand the scope of the then-existing version of section 51. As initially introduced, the bill that ultimately was enacted into law proposed to revise the first paragraph of section 51 to provide: “All citizens within the jurisdiction of this State, no matter what their race, color, religion, ancestry, or national origin, are entitled to the full and equal admittance, accommodations, advantages, facilities, membership, and privileges in, or accorded by, all public or private groups, organizations, associations, business establishments, schools, and public facilities; to purchase real property; and to obtain the services of any professional person, group or association.” (Assem. Bill No. 594 (1959 Reg. Sess.), as introduced Jan. 21, 1959, italics added.) Thereafter, the bill underwent a series of amendments in both houses of the Legislature.8 As ultimately enacted in 1959, the relevant paragraph of section 51 provided: “All citizens within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business
B
Since the enactment of the Unruh Civil Rights Act in 1959, questions concerning the proper interpretation of section 51 have come before this court on numerous occasions. In several cases, we have been faced with the question whether the statute encompasses discrimination on the basis of a particular characteristic or category that is not specifically listed in the statute. (See, e.g., In re Cox, supra, 3 Cal.3d 205 [“long hair and unconventional dress“]; Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721 [age]; Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d 1142 [economic status].) That issue, of course, is not presented by the case now before us, because the challenged basis for defendant club‘s exclusion of plaintiff from proprietary membership—gender—is among the enumerated categories of discrimination prohibited by the terms of section 51. Instead, the question we must determine is whether the provisions of that statute apply to the entity before us in this case—that is, to defendant country club. To decide this issue, we must determine the intended scope of the statutory language that entitles all persons “to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Italics added.)
As both parties recognize, three prior decisions of this court bear particularly upon the resolution of this issue. Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463 (Burks) was the first case in which this court had occasion to apply the Unruh Civil Rights Act. In Burks, the plaintiffs claimed that the defendants, a company and one of its employees who were engaged in developing, building, and selling a tract of houses, were violating the Unruh Civil Rights Act by allegedly refusing to sell homes in the tract to African-American customers on the same conditions offered to other customers. In discussing the scope of the statute, the court stated: “The Legislature used the words ‘all’ and ‘of every kind whatsoever’ in referring to business establishments covered by the Unruh Act (
Although the defendant company in Burks did not deny that it was a “business establishment” within the ordinary meaning of that term, it nonetheless contended that, in light of the legislative history of section 51, the statute should not be interpreted to apply to defendant‘s conduct. Noting that the original version of the bill enacting section 51 included a specific reference to the right “to purchase real property,” as well as other rights such as the obtaining of “professional services,” and that those specific references were deleted in the final enactment of the Unruh Civil Rights Act, the defendant in Burks argued that section 51 should not be interpreted to apply to its conduct of developing and selling real property. This court squarely rejected the argument, explaining that “[t]hese deletions can be explained on the ground that the Legislature deemed specific references mere surplusage, unnecessary in view of the broad language of the act as finally passed. [Citations.]” (57 Cal.2d at p. 469.) The court further noted in this regard that “in the original bill the general term ‘business establishments’ was not, as now, followed by the words ‘of every kind whatsoever’ and that those words were added in the draft that deleted the specific reference to the purchase of real property.” (Ibid.)
The second decision of this court bearing upon the issue now before us is O‘Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790 (O‘Connor). A year before the O‘Connor decision, the court held in Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721 (Marina Point), that the Unruh Civil Rights Act generally prohibits an apartment complex from excluding would-be residents solely on the basis of their age or the age of their children. The issue presented in O‘Connor was whether the holding in Marina Point applied to a similar age-restriction policy embodied in the “covenants, conditions and restrictions” (CC&R‘s) of a condominium development. (33 Cal.3d at p. 792.)
In O‘Connor, supra, 33 Cal.3d 790, the housing complex in question (the Village Green) was a 629-unit complex that originally had been operated as
In rejecting the homeowners association‘s contention that the nonprofit nature of the entity established that it was not a “business establishment” for purposes of the Unruh Civil Rights Act, the majority opinion in O‘Connor stated: “Nothing in the language or history of [the Unruh Civil Rights Act] calls for excluding an organization from its scope simply because it is nonprofit. [Citation.] Indeed, hospitals are often nonprofit organizations, and they are clearly business establishments to the extent that they employ a vast array of persons, care for an extensive physical plant and charge substantial fees to those who use the facilities. The Village Green Owners Association has sufficient businesslike attributes to fall within the scope of the act‘s reference to ‘business establishments of every kind whatsoever.’ Contrary to the association‘s attempt to characterize itself as but an organization that ‘mows lawns’ for owners, the association . . . has a far broader and more businesslike purpose. The association, through a board of directors, is charged with employing a professional property management firm, with obtaining insurance for the benefit of all owners and with maintaining and repairing all common areas and facilities of the 629-unit project. It is also charged with establishing and collecting assessments from all owners to pay for its undertakings and with adopting and enforcing rules and regulations for the common good. In brief, the association performs all the customary business functions which in the traditional landlord-tenant relationship rest on the landlord‘s shoulders. A theme running throughout the description of the association‘s powers and duties is that its overall function is to protect and enhance the project‘s economic value. Consistent with the Legislature‘s intent to use the term ‘business establishments’ in the broadest sense reasonably possible (Burks v. Poppy Construction Co., supra, 57 Cal.2d at p. 468), we conclude that the Village Green Owners Association is a business establishment within the meaning of the act.” (33 Cal.3d at p. 796.)
The plaintiffs in O‘Connor observed, in support of their contention that the defendant association fell within the aegis of section 51, that “among the specific references in the original version of the bill were ‘private or public
The third (and most recent) decision of this court to address the subject is Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72 (Isbister). The issue in Isbister was whether the provisions of section 51 applied to the admission policy of the Boys’ Club of Santa Cruz, a nonprofit association that owned and operated a recreational facility for children, so as to prohibit the Boys’ Club from excluding girls from use of the facility. In Isbister, a majority of this court concluded that the Boys’ Club properly should be considered a “business establishment” for this purpose.
In Isbister, the court began its analysis with a review of the origins and legislative history of the Unruh Civil Rights Act, the history we have summarized above. Because that history demonstrated that the 1959 revision of section 51 was intended to expand the reach of the prior statute, the court reasoned in Isbister that, in the event the Boys’ Club facility at issue constituted a “place of public accommodation or amusement” that would have been subject to the nondiscrimination strictures of the pre-1959 version of section 51, the facility also necessarily would constitute a “business establishment” within the meaning of the post-1959 version of section 51. Thereafter, the court in Isbister proceeded to explain why, in its view, the defendant in that case was, indeed, a “place of public accommodation or amusement” and thus a “business establishment” for purposes of the Unruh Civil Rights Act.
After noting that the facility in question—which included a swimming pool, gymnasium, and snack bar, as well as craft and game areas—“certainly qualifies as a ‘place of amusement‘” (Isbister, supra, 40 Cal.3d at p. 81), the court stated: “Moreover, the Club is classically ‘public’ in its operation. It opens its recreational doors to the entire youthful population of Santa Cruz with the sole condition that its users be male. [Citation.] There is no attempt to select or restrict membership or access on the basis of personal, cultural,
Finally, in responding to the objection that extension of the Unruh Civil Rights Act to the Boys’ Club would “threaten all private organizations which traditionally serve the special cultural or charitable needs of particular minority groups with common interests” (Isbister, supra, 40 Cal.3d at p. 84), the majority in Isbister explained: “[W]e have emphasized that the Club‘s status as a ‘business establishment’ covered by the act arises from its ‘public’ nature; it offers basic recreational facilities to a broad segment of the population, excluding only a particular group expressly recognized by the Act as a traditional target of discrimination.” (Ibid., italics omitted.) And, in an accompanying footnote addressed to a dissenting opinion, the majority opinion further observed: “In a similar vein, Justice Mosk complains that our interpretation threatens many traditionally sex-segregated institutions, such as fraternities and sororities, private schools and scouting organizations. Nothing we have said compels that result. The Act covers ‘business establishments’ of every kind, and these include traditional ‘public accommodations.’ Yet we have emphasized that the statute does not govern relationships that are truly private—to paraphrase Horowitz‘s words, those which are ‘continuous, personal and social’ [citation] and take place more or less outside ‘public view.’ [Citation.] ‘Private’ groups and institutions do not fall prey to the Act simply because they operate ‘nongratuitous’ residential or recreational facilities for their members or participants; an accommodation must be ‘public’ to be covered.” (40 Cal.3d at p. 84, fn. 14, italics added.)
Having reviewed the general background and history of
1
In determining whether private social clubs, in general, fall within the aegis of the Unruh Civil Rights Act, we begin with the language of the statute. As we have seen,
Relying upon several passages in this court‘s decisions in Burks and O‘Connor, however, plaintiff contends that those cases establish that the Legislature‘s adoption of the phrase “all business establishments of every kind whatsoever” in the final, enacted version of the Unruh Civil Rights Act was intended to incorporate all entities and activities that had been included in the initial draft of the bill introduced in 1959. Because, as noted above (ante, p. 608), the initial version of the bill referred specifically to “membership in . . . all public or private groups, organizations [and] associations,” plaintiff maintains that all private associations and organizations, including private social clubs, constitute “business establishments” within the meaning of
In our view, the cited cases do not support plaintiff‘s reading. In Burks, supra, the court rejected the defendant developer‘s contention that, although it was a “business establishment” within the ordinary meaning of the term, the Legislature‘s elimination of the initial draft‘s specific reference to the right “to purchase real property” demonstrated an intent to exclude the business of selling real property from the reach of the Unruh
The decision in O‘Connor, supra, similarly fails to support plaintiff‘s contention. As we have noted, in O‘Connor the court stated in this regard: “The broadened scope of business establishments in the final version of the bill, in our view, is indicative of an intent by the Legislature to include therein all formerly specified private and public groups or organizations that may reasonably be found to constitute ‘business establishments of every type whatsoever.’” (33 Cal.3d at pp. 795-796, italics added.) As in Burks, nothing in O‘Connor suggests that all private groups, organizations, or associations listed in the initial version of the bill invariably constitute “business establishments” under
Finally, the reasoning of the Isbister decision confirms this conclusion. Were plaintiff‘s argument valid, the court in Isbister would have found that the Boys’ Club was a business establishment under
Although our prior decisions thus do not support the contention that a private social club, in general, constitutes a “business establishment” within the meaning of
As in our prior decisions, an historical perspective is helpful in determining whether
In enacting the public accommodation provisions of the historic, federal Civil Rights Act of 1964, Congress specifically excluded private clubs from the reach of the statute (see
As noted above, California enacted its first public accommodation statute in 1897. There is no indication from the language of that statute (quoted in full, ante, at p. 608) that the provision was intended to apply to the membership decisions of private social clubs, and the decisions applying the statute do not suggest that the legislation had any such effect. (See, e.g., Gardner v. Vic Tanny Compton, Inc. (1960) 182 Cal.App.2d 506, 513-514 [6 Cal.Rptr. 490, 87 A.L.R.2d 113] [applying the pre-1959 version of
Although the 1959 enactment of the current version of
Indeed, although this court previously has not had occasion to render a holding directed specifically to the applicability of
Although, as is pointed out by an amicus curiae in support of plaintiff, the emphasized language from the Isbister decision technically is dictum, because no such private group was before the court in that case, we view this dictum as strong and persuasive. As we have explained, public accommodation statutes, as an historical matter, generally have not been applied to the membership policies of private social clubs that genuinely are selective in their membership and in which the relationship among members is continuous, personal, and social. By expanding the reach of California‘s public accommodation statute to guarantee equal accommodations in “all business establishments of every kind whatsoever,” the Unruh Civil Rights Act firmly established the right of all persons to nondiscriminatory treatment by establishments that engage in business transactions with the public. But there is nothing in the language or history of the Unruh Civil Rights Act that indicates the Legislature intended, as a general matter, to bring the membership decisions of truly private social clubs within the reach of the statute.10
Accordingly, in light of both the language of
2
Although we conclude that the provisions of
The United States Supreme Court decision in Daniel v. Paul (1969) 395 U.S. 298 [23 L.Ed.2d 318, 89 S.Ct. 1697] provides perhaps the clearest and most obvious illustration of this principle. In rejecting the defendants’ contention that their recreational facility—Lake Nixon—was a private club exempt from the public accommodation provisions of the Civil Rights Act of 1964, the high court explained: “Lake Nixon is not a private club. It is simply a business operated for a profit with none of the attributes of self-government and membership-ownership traditionally associated with private clubs. It is true that following enactment of the Civil Rights Act of 1964, the Pauls began referring to the establishment as a private club. They even began to require patrons to pay a 25-cent ‘membership’ fee, which gains a purchaser a ‘membership’ card entitling him to enter the Club‘s premises for an entire season . . . . But this ‘membership’ device seems no more than a subterfuge designed to avoid coverage of the 1964 Act. White persons are routinely provided ‘membership’ cards, and some 100,000 whites visit the establishment each season. . . . Negroes, on the other hand, are uniformly denied ‘membership’ cards, and thus admission. . . . The conclusion of the courts below that Lake Nixon is not a private club is plainly correct . . . .” (395 U.S. at pp. 301-302 [23 L.Ed.2d at p. 323].)
Other cases demonstrate that the same principle applies to nonprofit entities. In Tillman v. Wheaton-Haven Recreation Assn. (1973) 410 U.S. 431, 438 [35 L.Ed.2d 403, 409-410, 93 S.Ct. 1090], for example, the United States Supreme Court held that a nonprofit recreational association that was open to all Caucasian residents in a designated geographic area was not a “private club” exempt from the federal public accommodation law, because the association had “no plan or purpose of exclusiveness.” Similarly, in Sullivan v. Little Hunting Park (1969) 396 U.S. 229, 236 [24 L.Ed.2d 386, 392, 90 S.Ct. 400], the Supreme Court confirmed that the defendant community park could not properly be considered a “private social club” exempt
In the past, numerous courts, both federal and state, have grappled with the question whether a particular entity properly should or should not be considered a private club whose membership decisions are exempt from a generally applicable public accommodation law. The cases identify a number of factors that may be relevant to this determination, including (1) the selectivity of the group in the admission of members, (2) the size of the group, (3) the degree of membership control over the governance of the organization (and particularly the selection of new members), (4) the degree to which club facilities are available for use by nonmembers, and (5) whether the primary purpose served by the club is social or business. (See, e.g., Nesmith v. Young Men‘s Christian Ass‘n of Raleigh, N.C. (4th Cir. 1968) 397 F.2d 96, 98-102; Cornelius v. Benevolent Protective Order of Elks (D.Conn. 1974) 382 F.Supp. 1182, 1203-1204 [three-judge court]; Wright v. Cork Club (S.D. Tex. 1970) 315 F.Supp. 1143, 1150-1153; United States Jaycees v. McClure, supra, 305 N.W.2d 764, 770-771, affd. Roberts v. United States Jaycees (1984) 468 U.S. 609 [82 L.Ed.2d 462, 104 S.Ct. 3244].) Although no single factor has been viewed as controlling, many decisions consider the selectivity or lack of selectivity in the admission process to be of prime importance. As we have seen, most of these factors were considered by this court in Isbister in reaching the conclusion that the Boys’ Club of Santa Cruz was a place of “public amusement” rather than a private club.
Plaintiff argues that, viewing these factors as a whole, the club here at issue should not be found to constitute a “truly private club” exempt from the provisions of
As we shall explain, we conclude that there is no need to determine whether defendant constitutes a “private club” rather than a place of public accommodation under the multipronged standard developed in the out-of-state cases, because we conclude that the business transactions that are conducted regularly on the club‘s premises with persons who are not members of the club are sufficient in themselves to bring the club within the reach of
As summarized in the statement of facts at the outset of this opinion, the record establishes that defendant club is a nonprofit organization and that its operations are financed, in major part, by initiation fees, dues, and charges for goods and services paid by club members. At the same time, however, the record also discloses that, through a variety of activities, the club obtains both direct and indirect financial benefits from regular business transactions, conducted on its premises, with persons who are not members of the club.
First, the club regularly (on the average of once a week) permits nonmembers to use its facilities, for a fee, in connection with “sponsored events.” In conducting such events, the club receives funds from nonmembers for the use of the club‘s golf course, tennis courts, and dining and bar facilities, and also obtains revenue from the sale (at a markup) of food and beverages to nonmembers at the club‘s snack bar and other dining facilities on the club‘s premises. In carrying on such activities for a fee, the club operates as the functional equivalent of a commercial caterer or a commercial recreational resort—classic forms of “business establishments“—and, indeed, presumably competes with business entities that offer comparable services and that clearly are subject to the strictures of
Second, the club also obtains income, on a regular basis, from fees charged for the use of its facilities, and the purchase of food and beverages on its premises, by nonmember “invited guests.” Although the record does not establish what proportion of such guest charges is paid by club members and what proportion is paid by guests or from other sources, the record does indicate that in at least some instances these guest charges have been paid by companies or other business enterprises that are the employers of club members. To the extent the club obtains payment from nonmembers for
Finally, the record establishes that the club also obtains a significant, albeit indirect, financial benefit from the regular business transactions with nonmembers conducted at the golf and tennis pro shops located on its premises. As we have seen, these shops are open to members of the general public, who are permitted to take golf and tennis lessons from the golf and tennis professionals and to use the club‘s facilities in conjunction with such lessons. Although, under the contractual arrangement between the club and the golf and tennis professionals, the club does not receive a share of the income obtained from the pros’ sale of goods or services either to members or nonmembers, the existence of these “satellite” public commercial enterprises on the club‘s premises nonetheless provides a significant indirect financial benefit to the club, because the arrangement enables the club to place golf and tennis professionals on the club‘s premises, identified as the club‘s own professionals and readily available to club members, at a monthly retainer that is much lower than the club would have to pay in the absence of such public commercial business enterprises. Furthermore, the potential inconvenience to club members that might result from the circumstance that the club professionals are permitted to serve nonmembers as well as members was minimized, because (as reflected by the record) there was a general understanding that the professionals would give priority to use of the club‘s facilities by club members. Under these circumstances, we believe that the golf and tennis pro shops, and the related services they provide, realistically must be viewed as an integral part of the club‘s overall operations. (Accord, Nesmith v. Young Men‘s Christian Ass‘n of Raleigh, N.C., supra, 397 F.2d 96, 98-100 [under the federal Civil Rights Act, local YMCA‘s health and athletic facilities could not be treated as a separate establishment from the YMCA‘s adjacent lodging and eating facilities that were open to the public]; Fazzio Real Estate Co. v. Adams (5th Cir. 1968) 396 F.2d 146, 148-149 [under the federal Civil Rights Act, although bowling alley was not itself a “covered establishment,” it was subject to the act because a covered refreshment counter was located on its premises].)
In our view, because of the involvement of defendant‘s operations in the variety of regular business transactions with nonmembers discussed above, the club properly must be considered a business establishment within the
Furthermore, our conclusion that the nature and activities of defendant club render it a business establishment for purposes of
Defendant contends, however, that even if, as a matter of statutory interpretation, the club constitutes a business establishment within the meaning of
In a series of cases decided over the past decade, the United States Supreme Court has addressed the question whether application of state and municipal antidiscrimination legislation to the membership policies of a number of private associations violated the federal constitutional rights of the members of those associations. (See Roberts v. United States Jaycees, supra, 468 U.S. 609; Bd. of Dirs. of Rotary Int‘l v. Rotary Club (1987) 481 U.S. 537 [95 L.Ed.2d 474, 107 S.Ct. 1940]; New York State Club Assn. v. New York City (1988) 487 U.S. 1 [101 L.Ed.2d 1, 108 S.Ct. 2225].)
In Roberts v. United States Jaycees, supra, 468 U.S. 609, the seminal decision in this line of cases, the court addressed a constitutional challenge to a provision of the Minnesota Human Rights Act that had been interpreted as prohibiting the United States Jaycees, a nonprofit membership corporation that engages in a variety of civic, charitable, and lobbying activities, from excluding women from full membership. In analyzing whether such an application of the state antidiscrimination law violated the constitutional right of association of the organization‘s members, the court explained that there are two aspects of the constitutional right of association that must be considered in this context: (1) the freedom of intimate association, and (2) the freedom of expressive association. (468 U.S. at pp. 617-618 [82 L.Ed.2d at pp. 470-471].)
With regard to the freedom of intimate association, the court in Roberts noted that the highly personal relationships that are sheltered by this constitutional guaranty are exemplified by “those that attend the creation and sustenance of a family—marriage [citation], childbirth [citation], the raising and education of children [citation] and cohabitation with one‘s relatives [citation].” (468 U.S. at p. 619 [82 L.Ed.2d at p. 472].) The court explained: “Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not
“Between these poles, of course, lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Determining the limits of state authority over an individual‘s freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship‘s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments. [Citation.] We need not mark the potentially significant points on this terrain with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent.” (468 U.S. at pp. 619-620 [82 L.Ed.2d at pp. 472-473].)
In Roberts itself, the high court went on to find that, for a number of reasons, the organization at issue in that case—the United States Jaycees—clearly was “outside of the category of relationships worthy of this kind of constitutional protection.” (468 U.S. at p. 620 [82 L.Ed.2d at p. 473].) The court observed that the local chapters of the Jaycees “were large and basically unselective groups,” noting that the Minneapolis chapter had approximately 430 members and the St. Paul chapter about 400 members, and that “[a]part from age and sex“—no criteria were employed in recruiting or judging applicants for membership. (468 U.S. at p. 621 [82 L.Ed.2d at p. 473].) The court also pointed out that, “despite their inability to vote, hold office, or receive certain awards, women affiliated with the Jaycees attend various meetings, participate in selected projects, and engage in many of the organization‘s social functions,” and, indeed, that “numerous nonmembers of both genders regularly participate in a substantial portion of activities central to the decision of many members to associate with one another, including many of the association‘s community programs, awards ceremonies, and recruitment meetings.” (468 U.S. at p. 621 [82 L.Ed.2d at pp. 473-474].)
In Bd. of Dirs. of Rotary Int‘l v. Rotary Club, supra, 481 U.S. 537 (hereafter Rotary Club), the United States Supreme Court applied the principles articulated in Roberts to determine whether the constitutional rights of the members of Rotary International were violated by the decision of the California Court of Appeal in Rotary Club of Duarte v. Board of Directors, supra, 178 Cal.App.3d 1035, holding that the Unruh Civil Rights Act applied to that organization and prohibited it from excluding women from membership. Addressing first the question of freedom of intimate association, the United States Supreme Court concluded that, although membership in Rotary Clubs is not open to the general public, “the relationship among Rotary Club members is not the kind of intimate or private relation that warrants constitutional protection” (481 U.S. at p. 546 [95 L.Ed.2d at pp. 484-485]), the high court relying upon the size of local Rotary Clubs (from fewer than 20 members to more than 900), the regular change in membership of a typical club (approximately 10 percent change a year), the regular presence of strangers at many of the clubs’ activities, and the public nature and character of the civic activities carried on by local clubs. (481 U.S. at pp. 546-547 [95 L.Ed.2d at pp. 484-485].) With regard to the issue of freedom of expressive association, the court concluded that, although the evidence
The United States Supreme Court decision in New York State Club Assn. v. New York City, supra, 487 U.S. 1 (hereafter New York State Club Assn.) followed close upon Roberts and Rotary Club. In that case, the New York State Club Association brought a facial challenge to the constitutionality of a recently enacted New York City ordinance that had extended the application of the city public accommodation law to any “‘institution, club or place of accommodation [that] has more than four hundred members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business.‘” (487 U.S. at p. 6 [101 L.Ed.2d at p. 11].) The United States Supreme Court rejected the challenge, concluding that the city ordinance was not unconstitutional on its face.
In rejecting the claim that the ordinance represented an impermissible interference with club members’ freedom of intimate association, the court in New York State Club Assn. explained: “The clubs that are covered under the Law contain at least 400 members. They are thus comparable in size to the local chapters of the Jaycees that we found not to be protected private associations in Roberts, and they are considerably larger than many of the local clubs that were found to be unprotected in Rotary, some of which included as few as 20 members. [Citations.] The clubs covered by [the city ordinance] also provide ‘regular meal service’ and receive regular payments ‘directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business.’ [Citation.] The city found these two characteristics to be significant in pinpointing organizations which are ‘commercial’ in nature, ‘where business deals are often made and personal contacts valuable for business purposes, employment and professional advancement are formed.’ [Citation.] [] These characteristics are at least as significant in defining the
With regard to the effect of the city ordinance upon club members’ right of expressive association, the court observed that the challenged measure “does not affect ‘in any significant way’ the ability of individuals to form associations that will advocate public or private viewpoints. [Citation.] It does not require the clubs ‘to abandon or alter’ any activities that are protected by the First Amendment. [Citation.] If a club seeks to exclude individuals who do not share the views that the club‘s members wish to promote, the Law erects no obstacle to this end. Instead, the Law merely prevents an association from using race, sex, and the other specified characteristics as shorthand measures in place of what the city considers to be more legitimate criteria for determining membership. It is conceivable, of course, that an association might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion. In the case before us, however, it seems sensible enough to believe that many of the large clubs covered by the Law are not of this kind.” (New York State Club Assn., supra, 487 U.S. at p. 13 [101 L.Ed.2d at p. 16].) Accordingly, the court concluded that “[t]he facial attack based on the claim that [the challenged ordinance] is invalid in all of its applications must therefore fail.” (Id. at p. 14 [101 L.Ed.2d at p. 16].)
We believe that the teachings of the Roberts, Rotary Club, and New York State Club Assn. decisions make clear that application of
To begin with, defendant country club does not contend that it was organized for, or regularly engages in, the type of expressive activities that
Second, it is clear any claim that application of
Defendant contends, however, that even if United States Supreme Court decisions establish that application of the Unruh Civil Rights Act to the membership policies of the club does not infringe upon its members’ federal constitutional right of association, application of the statute nonetheless violates its members’ state constitutional right of privacy under article I,
IV
In sum, we conclude that the Court of Appeal erred in affirming the trial court‘s determination that the country club here at issue does not constitute a “business establishment” within the meaning of
The judgment of the Court of Appeal is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
Kennard, J., Arabian, J., Baxter, J., and Werdegar, J., concurred.
MOSK, J., Concurring and Dissenting.—Although I concur in the majority‘s result, I decline to accompany them over the whole length of the route they take to arrive there. Specifically, I part company with them when they reiterate with approval the misguided and illogical reasoning of Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72 [219 Cal.Rptr. 150, 707 P.2d 212] (Isbister). The concept that a small “swim and gym” club for boys
Civil Code
Of course, I share the majority‘s disquiet about sex discrimination. The loss of human capital occasioned by centuries of mindless sex discrimination is beyond calculation. We can only estimate its magnitude as we witness women‘s recent achievements in the worlds of work, politics and governance, the arts, and professional and amateur athletics, now that denial of opportunity and damage to self-esteem have somewhat diminished. Defendant country club‘s treatment of plaintiff may well appear totally alien to future generations.
But regardless of the destructiveness of invidious sex discrimination, we cannot ordinarily dictate to private groups whom they must admit when the Legislature has chosen not to address the question. In this case the Unruh Civil Rights Act does provide plaintiff a remedy, because defendant country club appears to be operating as a business establishment. In the case of Isbister‘s plaintiffs, however, the statute did not provide a remedy; indeed, a youngster‘s 25-cent sidewalk lemonade stand is more a business establishment than was the Boys’ Club of Santa Cruz. The Isbister majority managed the rare feat of flouting the will of both the California Legislature and Congress when they concluded that an affiliate of an association congressionally chartered at the time “to promote the health, social, educational, vocational, and character development of boys” (former
Because Isbister‘s strained reasoning so evidently runs counter to the Unruh Civil Rights Act—the law proscribes discrimination in “accommodations” only in all “business establishments,” not wherever human beings may
The majority in this case have no need to cite Isbister with approval. Instead of relying simply on the plain facts of this case, they dilute the persuasiveness of their conclusion by appearing to depend in part on that opinion‘s obviously misguided reasoning.
I also note that the majority euphemistically refer to “gender” discrimination, as if plaintiff were refused membership because of her femininity rather than her sex. (See J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, fn. 1 [128 L.Ed.2d 89, 114, 114 S.Ct. 1419] (dis. opn. of Scalia, J.).) In fact the Unruh Civil Rights Act says nothing about gender discrimination.
Nevertheless, I concur with the majority that the defendant country club in the case at bar appears to be operating as a business establishment, and hence that the Unruh Civil Rights Act bars it from discriminating on the basis of sex.
LUCAS, C. J.—I respectfully dissent.
Civil Code
The majority also correctly observes that an entity that, by virtue of its nature, purpose, and structure, otherwise would fall within the reach of the Unruh Civil Rights Act, cannot avoid the nondiscrimination mandate of the statute merely by donning the cloak of a private social club. (Maj. opn., ante, at p. 619.) It concludes, however, that it need not “determine whether defendant constitutes a ‘private club’ rather than a place of public accommodation” under the criteria traditionally employed to make that assessment (id. at p. 621) because “‘the business transactions that are conducted regularly on the club‘s premises with persons who are not members of the club are sufficient in themselves to bring the club within the reach of
There is no basis for the majority‘s assumption that the Legislature intended to regulate the activities of private social clubs under
I.
THE MAJORITY‘S “REGULAR BUSINESS TRANSACTIONS” ANALYSIS
The majority asserts defendant obtains direct “financial benefits from regular business transactions, conducted on its premises, with persons who are not members of the club.” (Maj. opn., ante, at p. 621.) Namely, the club “regularly . . . permits nonmembers to use its facilities, for a fee, in connection with ‘sponsored events.’ . . . In carrying on such activities for a
The majority concludes that these various “regular business transactions” with nonmembers render defendant a business establishment under
The majority‘s analysis is faulty in two respects. First, private clubs like defendant have historically acted in the manner described by the majority, i.e., they have long allowed nonmembers, when sponsored by a member, to make use of club facilities for weddings and special events, etc., on a fee-for-use basis, or as invited guests. In so operating, “country clubs” have traditionally engaged in regular on-premises “business transactions” with nonmembers, and have long derived a financial benefit to the extent that such fees may diminish the contributions required by club members to operate their establishment. The majority provides no reason to suspect this was not the norm for private country clubs in 1959, when the Unruh Civil Rights Act was enacted,—and when it was generally understood that “[m]embership clubs or organizations, e.g., country clubs owned by and
Indeed, it would astound those who drafted and enacted
Second, I question the majority‘s application of its own test. The assumption underlying much of its analysis is that the club‘s “commercial-like” activities are intended to operate in the black—i.e., to generally produce a net financial benefit rather than merely break even or produce a loss. Only then could those activities reduce the fees and dues that club members would otherwise be required to pay.
The majority, however, offers little to support its assumption, because, as it concedes, the record contains scant information on this point. Although there was testimony that the club imposed a “markup” on food and drink sold to members and nonmembers, the record contains no testimony about whether this “markup” simply covered costs, or whether it produced a profit or loss. Similarly, although the record discloses that “greens fees” charged during “sponsored events” were “higher than that charged at other times” (maj. opn., ante, at p. 601), this tells us nothing about whether those fees charged to nonmembers were set to cover costs, make a profit, etc. Accordingly, there is no clear record evidence about whether, for example, the “sponsored events” the majority relies on are self-sustaining (i.e., break even), make a profit, or lose money (and hence require subsidization by club members). Indeed, we do not even know how much money is involved in the transactions on which the majority bases its conclusion. We may infer from the record that no more than $75,000 (and possibly much less) of defendant‘s 1981 total receipts of $1.5 million were attributable to sponsored events. (Maj. opn., ante, at p. 602 & fn. 3.) We simply do not know the amount of money received for goods and services incurred by invited guests. Given the state of the record, I find no evidentiary support for the majority‘s conclusion that these “regular” transactions with nonmembers constitute a sufficient portion of defendant‘s gross receipts to render the club a “business establishment” under
Furthermore, the majority‘s approach raises an important issue for private clubs such as defendant that, no doubt, wish to conduct their affairs within the law. Specifically, may a club such as defendant avoid the majority‘s interpretation of
Ultimately, the majority casts doubt even on its novel “net financial benefit” rationale. It suggests that, regardless whether on-premises transactions with nonmembers inure to the financial benefit of club members, private clubs such as defendant may fall within
In summary, the majority suggests no basis for believing the 1959 Legislature that enacted
II.
THE TRADITIONAL ANALYSIS NOT TAKEN
The proper criteria for deciding whether defendant‘s membership decisions should be subject to
After a careful application of these traditional criteria, both the trial court and the Court of Appeal determined that defendant properly should be considered a private club whose membership decisions are not subject to the provisions of
First, defendant‘s process for choosing and admitting proprietary members is very selective. The club does not advertise for, or publicly solicit, new members. A prospective member can be proposed for membership only by a current member, and a membership committee, made up of existing members, conducts a thorough investigation and numerous interviews with the prospective member to assure social compatibility of the prospective member with the current members. Thus, unlike in Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal. 3d 72 [219 Cal. Rptr. 150, 707 P.2d 212] (Isbister), in which club membership was open to all boys in the community on a nonselective basis, defendant strictly limits its membership in an attempt to create a socially compatible, close-knit organization.
Second, the size of the proprietary membership of the club—limited to 350 members—also is compatible with the status of a private social club. Although the size of the membership suggests the club may not constitute an intimate social group in which all members are close personal friends, the club is considerably smaller than the national and international service organizations that several decisions have determined do not qualify as “private” clubs exempt from public accommodation statutes. (See United States Jaycees v. McClure (Minn. 1981) 305 N.W.2d 764, aff‘d Roberts v. United States Jaycees (1984) 468 U.S. 609 [82 L. Ed. 2d 462, 104 S. Ct. 3244] [United States Jaycees; 295,000 members]; Rotary Club of Duarte v. Board of Directors (1986) 178 Cal. App. 3d 1035 [224 Cal. Rptr. 213], aff‘d Bd. of Dirs. of Rotary Int‘l v. Rotary Club (1987) 481 U.S. 537 [95 L. Ed. 2d 474, 107 S. Ct. 1940] [Rotary International; 900,000 members].) In this regard, I note the State of New York recently enacted legislation expanding that state‘s public accommodation statute to cover private clubs that have more
The remaining criteria also support the conclusion that defendant is a private club. It is owned by the proprietary members, and those members, through an elected board of directors, make all policy decisions relating to governance of the club, including the selection of new members. In light of this structure, the relationship between a prospective member and the “proprietor” of the club—i.e., the current club members—involves a continuing personal and social relationship, one quite different from the proprietor-customer relationship that typifies an ordinary business transaction. (See Horowitz, supra, 33 So.Cal.L.Rev. at p. 281, fn. 78 [“If the ‘members’ do not own and control the enterprise, they are in effect simply patrons of the proprietor, and the critical proprietor-patron relationship is then no different than that of, e.g., innkeeper and patron.“].)
The club‘s policies concerning access to, and use of, the facilities by nonmembers also are consistent with defendant‘s status as a private club, at least with regard to the exemption of the club‘s membership decisions from the application of
Finally, the lower courts properly concluded that defendant‘s primary function and purpose are recreational and social, rather than business oriented, and that this characteristic further supports the conclusion that defendant is a private club under
Plaintiff asserts, however, that even if the social and recreational aspects of defendant club predominate over its business-oriented elements, such a club still is a valuable source of potential business contacts, and the club‘s discriminatory exclusion of women from membership inevitably will have an adverse impact on plaintiff‘s and other women‘s opportunities in the
Plaintiff‘s argument affords no principled basis on which this court may determine which private clubs should or should not be considered “business establishments” for purposes of
III.
“BUSINESSLIKE ATTRIBUTES”
Plaintiff further contends that even if, by its nature and purpose, a private country club does not necessarily constitute a “business establishment” within the meaning of
These attributes of defendant do not demonstrate that it properly should be considered among the “business establishments of every kind whatsoever” contemplated by
First, employment of numerous persons and ownership of significant land and facilities do not invariably constitute hallmarks of a “business establishment.” If a club is a “private social club” in light of the various factors discussed above, the fact that it employs many persons and owns considerable property does not transform it into a business establishment for purposes of its membership decisions. Conversely, the modest facilities and small number of persons employed by a commercial entity would not shield it from application of
Second, with regard to defendant‘s policy of charging members and their guests for services, food, and beverages provided by the club, this court specifically spoke to the effect of such a practice in our decision in Isbister, supra, 40 Cal.3d 72, in which we emphasized that ” ‘[p]rivate’ groups and institutions do not fall prey to the Act simply because they operate ‘nongratuitous’ residential or recreational facilities for their members or participants; an ‘accommodation’ must be ‘public’ to be covered.” (40 Cal. 3d at p. 84, fn. 14, italics added.) Accordingly, simply because the members of a private club have chosen to finance activities at the club on a pay-as-you-go basis does not render the club a “business establishment” within the meaning of
A conclusion that the club at issue here does not possess sufficient businesslike attributes to render it a “business establishment” for purposes of
Accordingly, defendant does not have sufficient businesslike attributes to render it a “business establishment” under
IV.
LEGISLATIVE POLICY CHOICES
For the reasons discussed above, it is clear that the current provisions of
Concerns raised by the discriminatory membership practices of private clubs, however, have by no means entirely escaped the California Legislature‘s attention. Within the past decade, the Legislature has enacted a number of statutes that explicitly bar individuals and corporations from claiming a tax deduction, for what otherwise would be a deductible trade or business expense, with regard to any expenditure made at a club that “restricts membership or the use of its services or facilities on the basis of age, sex, race, religion, color, ancestry, or national origin.” (
Furthermore, the Legislature also has adopted a variety of other statutes that, while authorizing certain categories of private clubs to obtain liquor licenses, withhold such licenses from specified clubs that restrict membership on the basis of designated categories, such as race, religion, national origin, or gender. (See
As reflected in these recent legislative enactments, both in California and in other states, there are a variety of ways to address the serious public policy questions presented when private clubs choose to restrict their membership in a discriminatory fashion. Although one possible remedy is legislative action to bring a designated category of private clubs within the reach of a state‘s public accommodation statute, other means exist to deal with this issue. The choice among alternative remedies—or the decision as to what combination of remedies should be invoked—is, by its nature, a legislative determination, not a judicial one. Thus, because the current provisions of
V.
CONCLUSION
For the reasons discussed above, I would affirm the judgment of the Court of Appeal.
Respondents’ petition for a rehearing was denied September 21, 1995.
Notes
The applicable Internal Revenue Service guideline provides that, as an audit standard, that agency will not rely solely upon a social club‘s gross receipts from nonmembers to establish that the club is nonexempt, where the club‘s gross receipts from nonmembers do not exceed 5 percent of the club‘s total gross receipts. (Rev. Proc. 71-17, § 3.01, 1971-1 C.B. 683; see Pittsburg Press Club v. United States (3d Cir. 1980) 615 F.2d 600, 604, fn. 6.) The guideline also explains that, even if the revenue received by the club for nonmembers’ use of club facilities is not sufficiently substantial to result in the club‘s loss of its exemption, the club still may be liable for “unrelated business income tax.”
In 1993, a bill was introduced that would have prohibited the issuance or renewal of a club liquor license to any club that denies membership on the basis of “color, race, religion, ancestry, national origin, sex, disability, or age,” and that has (1) a membership of 400 or more, (2) provides regular meal service, and (3) regularly accepts payment from or on behalf of nonmembers for expenses incurred at the club in furtherance of trade or business. (Assem. Bill No. 159 (1993-1994 Reg. Sess.).) Although the measure passed both houses of the Legislature, it was vetoed by the Governor, and the Legislature did not override the veto.In any event, although the July 1990 bylaw revision changed the club‘s policy for the future, the club stood by its position that the male-only policy that was in effect in 1981 did not violate section 51, and that plaintiff was not entitled to any relief under this statute.
We emphasize that the income that defendant derived from nonmembers was obtained as a result of regular and repeated business transactions with nonmembers. A private club that raises funds from nonmembers by conducting, for example, an occasional car wash, garage sale, or auction would not properly be considered a “business establishment,” for purposes of
There is nothing in the record to support the dissent‘s suggestion (see dis. opn., post, p. 634) that private golf or country clubs “historically” have engaged in the type or extent of regular business transactions with nonmembers conducted by defendant club, and nothing in Professor Horowitz‘s 1960 law review article on the Unruh Civil Rights Act (Horowitz, The 1959 California Equal Rights In “Business Establishments” Statute—A Problem In Statutory Application, supra, 33 So.Cal.L.Rev. 260, 289-290) suggests that such a club should not be considered a “business establishment” for purposes of