Letter from Lani Guinier to James R. Kellogg, Esg. Re: hours and expenses

    IN THE

Supreme Court of the United States
October Term, 1963

No. 6 0

JAMES RUSSELL ROBINSON, JOSEPH PRICE 
PERKINS, MARVIN EDISON ROBINSON, THOMAS 

VAWN ROLAND, JAMES H. LANE, THOMAS 
WALTER GAITHER, BARRY M. COHEN, 

ANGELINE E. BUTLER, HENRY PRINGLE, 
BERNARD LAFAYETTE, OLIVER WILLIAM 

ST. PEE, LEON EVERETTE BAILEY, DOROTHY 
R. MILLER, PATRICIA STEPHENS, PRICILLA 

STEPHENS, ALICE M. PARHAM, ROBERT PAUL 
YOUNG, and DR. CARL ELLIOTT YAEGER, JR.,

v.
Appellants,

THE STATE OF FLORIDA,
Appellee,

On Appeal from the Supreme Court of the State of
Florida

BRIEF FOR THE APPELLANTS

ALFRED I. HOPKINS, 
TOBIAS SIMON and 
HOWARD W. DIXON 
Counsel for Appellants 
223 Southeast First Street 
Miami, Florida



I N D E X

Page

Opinion below ______________________________ 1

Jurisdiction ________________________________ 2

Question presented __________________________  2

Constitutional Provisions and Statutes Involved__  3

Statement of the case_________________    4

Summary of Argument 

Argument:

I The participation by the police and courts 
below in arresting and convicting Appel­
lants for alleged violation of Florida Stat­
utes § 509.141, in aid of the restaurant’s 
policy of racial discrimination, constituted 
state enforcement of racial discrimina­
tion and, consequently, a denial of Appel­
lants’ rights to the equal protection of the 
laws guaranteed by the Fourteenth 
Amendment. _______________________ 6

II Apart from the participation of the po­
lice and the state courts herein, the dis­
criminatory action of Shell’s City itself 
constituted state action, since by virtue 
of the Florida restaurant licensing law, 
Florida Statutes Chapter 509, together



with the regulations promulgated there­
under, the State has, within the meaning 
of the Burton v. Wilmington Parking Au­
thority, “so far insinuated itself into a po­
sition of interdependence” with restau­
rants “that it must be recognized as a 
joint participant in the challenged ac­
tivity.” ____________________________

III The racial discrimination practiced by 
Shell’s City is engendered by racial cus­
toms prevalent in Miami and throughout 
the State of Florida, and the pressures of 
state and local customs which were 
brought to bear upon the Appellants, nec­
essarily constituted a denial by state ac­
tion of Appellants’ rights to the equal pro­
tection of the laws within the meaning of

INDEX (cont.)

the Fourteenth Amendment.__________  27

Conclusion _________________________________ 30

Page

19

Appendix App. 1



TABLE OF AUTHORITIES CITED
Cases: Page
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir., 1961) 24

Barrows v. Jackson,, 846 U.S. 249; 97 L.Ed, 1586;
73 S. Ct. 1031 (1953)___________________  5,7

Boynton v. Virginia, 364 U.S. 454; 5 L.Ed. 2d 206;
81 S. Ct. 182 (1960)_____________________  7

Burton V. Wilmington Parking Authority, 365 U.S.
715; 6 L.Ed. 2d 46; 81 S.Ct. 856 (1961) _ 6, 9,18, 23

Cantwell v. Connecticut, 310 U.S. 296; 84 L.Ed.
1213; 60 S. Ct. 900 (1940)________________  17

Commonwealth v. Alger, 7 Cush. 53; 61 Mass. 53—_ 1.5

District of Columbia v. John R. Thompson Com­
pany, Inc., 346 U.S. 100; 97 L.Ed. 1480; 73 
S.Ct. 1007 (1952)_______________    15

Everson v. Board of Education, 330 U.S. 1; 91 L.
Ed. 711; 67 S. Ct. 504 (1947)_____________  17

Garner v. Louisiana, 368 U.S. 157; 7 L. Ed. 2d 207;
82 S. Ct. 248 (1961)___________________  7,22,29

Hirabayashi v. United States,. 320 U.S. 81; 87 L.Ed.
1774; 63 S. Ct. 1375 (1943)_______________  17

Hurdv. Hodge, 334 U.S. 24; 92 L.Ed. 1187; 68 S.Ct.
847 (1948) _____________________________ 7,14

Lombard v. Louisiana, 373 U.S. 267; 31 Law Week
4476 (1963) ___________________________ 13



TABLE OF AUTHORITIES CITED (conk)
Cases: Page
Marsh v. Alabama, 326 U.S. 501; 90 L.Ed. 265; 66

S. Ct. 265 (1946)________________________ 16,25

McGoivan v, Maryland, 336 U.S. 420; 6 L.Ed. 2d
393; 81 S. Ct. 1101 (1961)_______________  17

Miller Y. Schoene, 276 U.S. 272; 72 L.Ed. 568; 48
S.Ct. 246 (1928) _______________________  16

Neal v. Delaware, 103 U.S. 370; 26 L. Ed. 567
(1881) ________________________________ 29

Nebbia v. New York, 291 U.S. 502; 78 L.Ed. 940;
54 S. Ct. 505 (1934)_____________________  15

Palko v. Connecticut, 302 U.S. 319; 82 L.Ed. 288;
58 S. Ct. 149 (1937)_____________________  17,19

Peterson v. City of Greenville, 373 U.S. 244; 31
Law Week 4475 (1963)__________________  7,29

Public Utilities Commission V. Poliak, 343 U.S. 451;
97 L.Ed. 1068; 72 S. Ct. 813 (1952)________  24

Robinson v. State,. 144 So. 2d 811 (Fla., 1962)-----  1

Rylands v. Fletcher, 1868, L.R. 3 H.L. 330, 338-----  15

School District of Abington V. Schempp, 374 U.S.
203; 32 Law Week 4683 (1963)___________  13,18

Shelley v. Kraemer, 334 U.S. 1; 92 L.Ed. 1161; 68 
S.Ct. 836 (1948)_________________ _____ 5,7



TABLE OF AUTHORITIES CITED (cont.)
Cases: Page

Smith v. Allwright, 321 U.S. 649; 88 L.Ed. 987; 64
S. Ct. 757 (1944)_______________________  25

Southern Pacific Co. v. Arizona, 325 U.S. 761; 89
L.Ed. 1915; 65 S. Ct. 1515 (1945)_________  17

Steele v. Louisville & Nashville Railroad Company,
323 U.S. 192; 89 L.Ed. 173; 65 S. Ct. 226 
(1944) ________________________________ 26

Terry v. Adams, 345 U.S. 461; 97 L.Ed. 1152; 73
S. Ct. 809 (1953)________________________ 28

The Civil Rights Cases, 109 U.S. 3; 27 L.Ed. 835;
3 S. Ct. 18 (1883)_______________________  22,27

Valle v. Stengle, 176 F. 2d 697 (3rd Cir., 1949)_ 10



Constitutional Provisions, Statutes and Regulations:

Page

Federal Constitution, Fourteenth Amendment, § 1_ 3

R. S. § 1977 (42 U.S.C.A. § 1981)______________  11

Florida Constitution, Declaration of Rights, § 2__  30

Florida Constitution, Article XII, § 12__________  28

Florida Constitution, Article XYI, § 24_________  28

Florida Statutes, §§ 352.03 - 353.18_____________  28

Florida Statutes, Chapter 509_________________  20-22

Florida Statutes, Chapter 608_________________  22

Florida Statutes, §§ 741.11 -741.16____________  28

Florida Statutes, §§ 798.04 and 798.05__________  28

Florida Statutes, §§ 948.01(1) and 948.01(3)____  4

Florida Statutes, §§ 950.05-950.08_____________  28

Florida Administrative Code, Chapter 175_______  21

Text:

Henkin: “Shelley v. Kraemer: Notes for a Revised 
Opinion”, 110 U. of Pa. L.R. 473 (1962)____ 12



IN THE

Supreme Court of the United States
October Term, 1963

No. 6 0

JAMES RUSSELL ROBINSON, JOSEPH PRICE 
PERKINS, MARVIN EDISON ROBINSON, THOMAS 

YAWN ROLAND, JAMES H. LANE, THOMAS 
WALTER GAITHER, BARRY M. COHEN, 

ANGELINE E. BUTLER, HENRY PRINGLE, 
BERNARD LAFAYETTE, OLIVER WILLIAM 

ST. PEE, LEON EVERETTE BAILEY, DOROTHY 
R. MILLER, PATRICIA STEPHENS, PRICILLA 

STEPHENS, ALICE M. PARHAM, ROBERT PAUL 
YOUNG, and DR. CARL ELLIOTT YAEGER, JR.,

Appellants,
v.

THE STATE OF FLORIDA,
Appellee.

On Appeal from the Supreme Court of the State of
Florida

BRIEF FOR THE APPELLANTS

OPINION BELOW
The opinion of the Supreme Court of Florida is re­

ported in 144 So. 2d 811. (R. 46) The opinion of the trial 
court, delivered orally at the conclusion of the trial, is set 
forth in the Record. (R. 36)



2

JURISDICTION

The State of Florida filed a criminal information 
against Appellants on August 17, 1960, pursuant to Flor­
ida Statutes § 509.141. (R. 1) Appellants were tried and 
were found by the trial court to have violated said statute 
and judgments were entered against them on August 26, 
1960. (R. 36, 37) Appellants filed a Notice of Appeal to 
the Circuit Court for the Eleventh Judicial Circuit in 
and for Dade County, Florida, on September 21, 1960 (R. 
8), and the judgments of the trial court were ultimately 
affirmed by the Supreme Court of Florida in its Order 
and Opinion filed September 19, 1962. (R. 46) Appellants 
filed their Jurisdictional Statement herein on January 
16, 1963, and this Court entered its Order Noting Prob­
able Jurisdiction on June 10, 1963.

Jurisdiction of this Appeal is invoked pursuant to 
28 U.S.C. § 1257(2).

QUESTION PRESENTED

Where a group of Negroes and white persons in asso­
ciation with Negroes remain in a restaurant after the 
manager has refused to serve them and has requested 
them to leave the premises; and where the manager’s re­
fusal to serve and his request to leave are based upon the 
fact that the group comprises Negroes and white persons 
in association with Negroes; and where the police, at the 
manager’s request, arrest the group because of their re­
fusal to comply with the manager’s request to leave the 
premises; are the arrests and subsequent convictions of 
the group for alleged violations of Florida Statutes 
§ 509.141 in violation of the equal protection of the laws



3

guaranteed by the Fourteenth Amendment to the Federal 
Constitution?

CONSTITUTIONAL PROVISIONS AND STATUTES 
INVOLVED

1. § 1 of the Fourteenth Amendment to the Federal 
Constitution.

2. R. S. § 1977 (42 U.S.C.A. § 1981), which provides 
that:

“All persons within the jurisdiction of the United 
States shall have the same right in every State 
and Territory to make and enforce contracts . . . 
and to the full and equal benefit of all laws and 
proceedings for the security of persons and prop­
erty as is enjoyed by white citizens. . . . ”
3. § 2 of the Declaration of Rights of the Florida 

Constitution, which provides that: “All political power is 
inherent in the people.”

4. The following Sections of Chapter 509 of the 
Florida Statutes, which are set forth in full in the Appen­
dix hereto: § 509.012; § 509.032(1) ; § 509.092; § 509.141; 
§ 509.211; § 509.221; § 509.241; § 509.261; § 509.271; and 
§ 509.291 (App. 6-25).

5. Florida Statutes §§ 352.03-353.18; 741.11-741.16; 
798.04 and 798.05; and 950.05-950.08, set forth in full in 
the Appendix hereto. (App. 1-2; 26-31).

6. Florida Statutes § 948.01(1) and § 948.01(3), 
set forth in full in the Appendix hereto (App. 28).



4

STATEMENT OF THE CASE

The State of Florida filed an information against Ap­
pellants pursuant to Florida Statutes § 509.141(3), (App. 
8) which charged that on August 17, 1960, they entered 
Shell’s City Restaurant in Miami, Florida, seated them­
selves as guests at tables in the restaurant and unlawfully 
remained in the restaurant after having been requested 
by the management to leave, the management being of the 
opinion that if Appellants were served it would be detri­
mental to the restaurant. (R. 1-2) Trial was held in the 
Criminal Court of Record in and for Dade County, Flor­
ida, on August 26, 1960. Following the presentation of 
the State’s case, Appellants moved for a judgment of ac­
quittal, but their motion was denied. (R. 35) The Appel­
lants presented no evidence. The trial court then entered 
judgments pursuant to Florida Statutes, Chapter 948 
(App. 28), wherein it ordered that adjudications of guilt 
and the imposition of sentence be stayed, and placed Ap­
pellants on probation. (R. 36-37)

The record contains no conflict as to the material 
facts alleged in the information. The Appellants, com­
prising both colored and white persons, entered the res­
taurant and sat at several tables, and asked to be served. 
The manager refused to serve them, and called the police. 
A police officer arrived and the manager, accompanied 
by the officer, went to each table and again requested Ap­
pellants to leave, and they again refused. The police offi­
cer then advised them to leave and when they did not, he 
placed them under arrest. (R. 16, 17, 18, 23)

The manager stated that it was his opinion that the 
presence of Appellants was detrimental to his business for



5

the reason that they were Negroes and white persons in 
association with Negroes. (R. 22) The restaurant consti­
tutes one of nineteen departments in the Shell’s City de­
partment store, and the manager admitted that other 
patrons were being served in the restaurant at this time, 
and also admitted that it was not detrimental to the busi­
ness for Negroes to purchase products in other parts of 
the store. (R. 23, 24) Although Negroes are invited to 
purchase in eighteen departments in the store, they are 
not allowed in the nineteenth, the restaurant. (R. 29)

A vice-president of the store stated that Shell’s City’s 
policy of not serving Negroes is based upon the customs, 
habits and traditions of the majority of the white people 
in the county and the state not to serve white and colored 
people seated in the same restaurant and that if Shell’s 
City tried “to break that barrier”, it “might have real 
trouble”. (R. 29, 30)

SUMMARY OF ARGUMENT

The actions of the police and the courts of the State 
of Florida in evicting Appellants from the restaurant and 
in arresting and convicting them for alleged violations of 
Florida Statutes § 509.141 constituted state enforcement 
of racial discrimination and a denial of Appellants’ rights 
to the equal protection of the laws guaranteed by the Four­
teenth Amendment. Neither the State nor the restaurant 
owner can claim that the discrimination was purely “pri­
vate” inasmuch as the arrests, prosecution and convictions 
were all effectuated by organs of state power. Shelley y. 
Kraemer and Barrows v. Jackson, post.

Further, since restaurants under Florida law are sub­



6

ject to the licensing, regulatory and supervisory authority 
of the Florida Hotel and Restaurant Commission, they 
operate as quasi-public instrumentalities of the State. Thus, 
the State has, within the meaning of Burton v. Wilmington 
Parking Authority, post, so far insinuated itself into a 
position of interdependence with restaurants that the dis­
criminatory practices cannot be deemed so purely private 
as to fall outside the scope of the Fourteenth Amendment. 
Consequently, Shell’s City has the affirmative constitu­
tional obligation to serve the public without discriminations 
based upon race.

Finally, the discrimination practiced by Shell’s City 
was the result of local racial customs, and the mass pres­
sures of such customs, exerted by the people of Dade 
County and the State of Florida, thus coercing the restau­
rant to discriminate, constituted state action within the 
meaning of the Fourteenth Amendment and in violation 
thereof.

ARGUMENT

I

The participation by the police and courts be­
low in arresting and convicting Appellants for 
alleged violation of Florida Statutes § 509.141, 
in aid of the restaurant’s policy of racial discrim­
ination, constituted state enforcement of racial 
discrimination and, consequently, a denial of Ap­
pellants’ rights to the equal protection of the 
laws guaranteed by the Fourteenth Amendment.

1. In order to narrow and define the issues involved



7

in this appeal, Appellants would first show to the Court 
that unlike other “sit-in” cases recently decided by the 
Court, (1) the issue here is not that of lack of evidence 
to support a conviction for disorderly conduct or unlawful 
assembly or the like, as in Garner v. Louisiana, 368 U.S. 
157; 7 L.Ed.2d 207; 82 S.Ct. 248 (1961), and companion 
cases; (2) we are not here confronted with any statute, 
ordinance, or administrative policy expressly requiring 
racial segregation in restaurants, as in Peterson v. City of 
Greenville, and companion cases, 373 U.S. 244: 31 Law 
Week 4475 (1963) ; and (3) there is no assertion that the 
activities in question involve interstate commerce, as in 
Boynton v. Virginia, 364 U.S. 454; 5 L.Ed.2d 206; 81 S.Ct. 
182 (1960).

2. Appellants rely first upon Shelley v. Kraemer, 334 
U.S. 1, 22; 92 L.Ed. 1161, 1185; 68 S.Ct. 836 (1948), 
where the Court held that:

“The Constitution confers upon no individual the 
right to demand action by the State which results 
in the denial of the equal protection of the laws 
to other individuals. And it would appear beyond 
question that the power of the State to create and 
enforce property interests must be exercised 
within the boundaries defined by the Fourteenth 
Amendment.”

Accord: Barrows v. Jackson, 346 U.S. 249; 73 S.Ct. 1031; 
97 L.Ed. 1586 (1953). Cf. Hurd v. Hodge, 334 U.S. 24; 92 
L.Ed. 1187; 68 S.Ct. 847 (1948). In these cases, the Court 
refused to permit an arm of government to protect or give 
effect to a private party’s asserted contractual property 
right, in the form of a restrictive covenant, where such



8

protection or assistance would have resulted in unlawful 
racial discrimination. In the case at bar Shell’s City called 
upon the police of Miami to evict Appellants from the res­
taurant solely for the reason of racial discrimination. 
Thereupon the police in conjunction with the office of the 
State Attorney for Dade County, invoked the criminal 
jurisdiction of the Florida judiciary, and this aggregation 
of state authority succeeded in effectuating the restau­
rant’s racial policy. Appellants, predicating their position 
upon Shelley and Barrows, submit that the Court should 
prohibit the public authorities of the State of Florida from 
lending their coercive power to protect or effectuate Shell’s 
City alleged “property right” to refuse to serve patrons 
who are Negroes or in association with Negroes.

The State’s position appears to be that the restaurant 
owner, as a “private party”, has the unfettered right to 
select its customers and patrons by virtue of and in ac­
cordance with Florida Statutes § 509.141. (App. 8) Sub­
section (1) of the statute authorizes the restaurant owner 
to remove or cause to be removed any guest “who, in the 
opinion of the management, is a person whom it would be 
detrimental to such . . . restaurant . . .  for it any longer 
to entertain.”1 Sub-section (3) provides that any guest 
who shall remain in the restaurant after being requested to 
leave shall be guilty of a misdemeanor, and shall be deemed 
to be unlawfully within the restaurant. Sub-section (4) 
provides that the management may call any law enforce­

iA similar legislative assertion of the right to private choice is 
contained in Florida Statutes § 509.09, which provides that:

“Public lodging and public food service establishments are declared 
to be private enterprises and the owner or manager of public 
lodging and public food service establishments shall have the right 
to refuse accommodations or service to any person who is objec­
tionable or undesirable to said owner or manager.”



9

ment officer to its assistance, who shall forthwith eject 
such person from the premises.

§ 509.141 may be valid on its face, as it does not by 
its terms define race as a criterion of undesirability, and 
Appellants do not contest the State’s right to assist a res­
taurateur in evicting patrons who refuse to leave where 
their undesirability is predicated upon appropriate rea­
sons other than race. If a Negro were boisterous, intoxi­
cated, or improperly attired, the restaurateur and the po­
lice would be justified in ejecting him, for these would be 
criteria of undesirability unrelated to the patron’s race. 
However, the State’s information did not charge, nor does 
the record contain, any allegations or evidence that any 
of the Appellants were unmannerly, or improperly attired, 
or engaged in any disorderly conduct. It is clear from the 
testimony of the managers that they considered Appellants 
undesirable and their presence detrimental to the restau­
rant’s business for one reason alone, namely, that they 
were Negroes or persons in association with Negroes, Ac­
cordingly, it is Appellants’ position that while the Statute 
may be valid on its face, the State invalidly applied it in 
the instant case by effectuating and enforcing racial dis­
crimination. And the ruling of the Florida Supreme Court, 
below, in permitting the application of the statute in this 
case in effect authorized “discriminatory classification 
based exclusively on color.” Stewart, J., concurring in 
Burton v. Wilmington Parking Authority, post, 365 U.S. 
715, 727; 6 L.Ed.2d 45, 53.

The State’s argument that the restaurant owner, as a 
“private party”, has the right to select its customers, even 
on the basis of race, is sophistic. The entire transaction— 
from its inception, when the management requested Ap­



10

pellants to leave, to its conclusion, when the Appellants 
were convicted—was programmed and consummated pur­
suant to Florida Statutes § 509.141 and the statute was, 
in practical effect, applied to them solely because they 
are Negroes or were in association with Negroes. It is a 
sophistry to suggest that the discrimination was “private” 
when Appellants were arrested by police officers of the 
City of Miami, were incarcerated in a public jail awaiting 
trial, were prosecuted by the State Attorney’s office, and 
were convicted of a criminal offense in a criminal court 
and under and by virtue of the criminal statutes of the 
State of Florida. The very participation of the office of 
the Attorney General of the State of Florida in this appeal 
further repudiates any notion that this is simply a “pri­
vate” issue.

If, as in Shelley and Barrows, the civil sanctions of 
injunction and common law judgments are not available 
to one who would assert a property right for racial reasons, 
then a fortiori the exercise of the public power in the form 
of criminal sanctions should be prohibited. In the instant 
case the State injected itself into the restaurant owner’s 
affairs to the extent of carrying out a mass arrest, staging 
a mass criminal trial and placing the Appellants in jeop­
ardy of mass incarceration in the public jail. But for the 
issue of race, this entire drama would not have been 
enacted, and such blatant racial discrimination cannot be 
characterized as simply a private affair when this formid­
able arsenal of State power is brought to bear to enforce it.

The judgment below is also in direct conflict with the 
decision of the Court of Appeals for the Third Circuit in 
Valle v. Stengle,. 176 F.2d 697 (1949). Plaintiffs there 
brought suit under the Civil Rights Acts alleging a denial



11

of equal protection of the laws. Their complaint alleged 
that they were both Negroes and whites; and that the de­
fendants, being the corporate owner of a private amuse­
ment park, the individual managers thereof, and the local 
chief of police, denied plaintiffs admission to the swim­
ming pool therein and ejected them from the park on the 
ground that their party contained Negroes. In sustaining 
their complaint against a motion to dismiss the Court 
stated that:

“ . . . the plaintiffs were denied equal protection 
of the laws, within the purview of the Fourteenth 
Amendment because they were Negroes or acting 
in association with Negroes when they attempted 
to gain admission to the pool at Palisade Park. 
They, or some of them, were ejected from the 
park, were assaulted and were imprisoned falsely, 
as alleged in the complaint, because they were Ne­
groes or were in association with Negroes, and 
were denied the right to make or enforce con­
tracts, all within the purview of and prohibited 
by R. S. Section 1977”. 176 F.2d 697, 702.

The Court held that the right to solicit contracts may 
not be violated by State action where such action is 
prompted by the fact that the soliciting parties are Ne­
groes or persons acting in association with Negroes. Ap­
pellants here, like the plaintiffs in Valle, were denied the 
right to trade with Shell’s City because of the fact that 
they are Negroes or persons in association with Negroes. 
R. S. § 1977, cited above, provides that:

“All persons within the jurisdiction of the United 
States shall have the same right in every State



12

and Territory to make and enforce contracts 
. . . and to the full and equal benefit of all laws 
and proceedings for the security of persons and 
property as is enjoyed by white citizens. . . . ”

3. Concern has been voiced by some writers2 that 
if the rule in Shelley and Barrows be extended to cases 
like the one at bar, then by further extension none could 
discriminate in their own homes against unwanted persons 
who happened to be Negroes, and that Negroes would 
thereby be accorded a special status as privileged tres­
passers. In reply, Appellants state first that it tortures 
the imagination to conceive of a hypothetical case coming 
to pass in which a private householder would invite the 
entire public, or a substantial segment of it, to enter his 
private premises on an otherwise indiscriminate basis, 
but refuse to admit Negroes and solely because of their 
race. Such a hypothetical case would involve not merely 
the right to turn a Negro away from one’s door under 
any circumstances; rather, this special case must posit a 
householder inviting all persons similarly situated onto 
his premises, but excluding Negroes and solely because of 
their race. Such would indeed be a rare and extraordinary 
occurrence, but even if it should eventuate, its social sig­
nificance would be trivial when compared with the whole­
sale discriminations in places of public accommodation 
which occur daily and in hundreds of communities through­
out the country. It hardly needs repeating that racial dis­
crimination by restaurants, which are otherwise open to 
the general public, constantly subject members of the Ne­
gro minority to public humiliation and indignities, and

2For a scholarly analysis of Shelley, its consequences, and its de­
tractors, see Henkin, “Shelley v. Kraemer: Notes for a Revised Opin­
ion”, 110 U. of Pa. L.R. 473 (1962).



13

publicly proclaim them to be, in effect and en masse, in­
ferior members of American society. Any such racial dis­
crimination, as suggested above, by a private home-owner, 
while manifesting a pathetic prejudice, would be an iso­
lated event and would not subject its victims to the noto­
rious humiliation occasioned by restaurant discriminations; 
indeed, a Negro intruding upon the intimacy of a private 
home would hardly command serious social concern.3

Further, to argue the applicability vel non of Shelley 
and Barrows in the case at bar on the basis of the case of 
the hypothetical homeowner would be to argue ignotum per 
ingnotius and to lose touch with reality; the problem of 
the private home-owner should therefore not control the 
disposition of the actual case now before the Court. “It 
is of course true that great consequences can grow from 
small beginnings, but the measure of constitutional adjudi­
cation is the ability and willingness to distinguish between 
real threat and mere shadow.” Goldberg, J., concurring in 
School District of Abington v. Schempp, 374 U.S. 203; 31 
Law Week 4683, 4715 (1963)

4. The circumstances in the case at bar are of criti­
cal immediacy and the application of the principle involved 
to places of public accommodation are of national impor­
tance. The Shell’s City restaurant is located in a large de­
partment store, its business purpose is to serve the public, 
and it solicits the business of the public indiscriminately, 
except in one regard—that of race. “Access by the public 
is the very reason for its existence.” Douglas, J., concur­
ring in Lombard v. Louisiana, 373 U.S. 267; 31 Law Week 
4476, 4478 (1963). The scope of the indignities and dis­

3Cf. Henkin, op. cit., pp. 498, 499.



14

criminations which are practiced thus becomes a measure 
of their constitutional consequences. The issue, therefore, 
viewed realistically, is one of reconciling the restaurant 
owner’s asserted proprietary rights with the constitutional 
guarantee of equal protection of the laws. Appellants con­
tend that in this central issue that fundamental guarantee 
of racial equality should and must prevail over the as­
serted property right of private commercial choice. In 
choosing between similar conflicting claims of constitu­
tional and equitable preferences, this Court has heretofore 
declared, in a related case, that the enforcement of re­
strictive racial covenants is not only violative of constitu­
tional and statutory guarantees, but is “contrary to the 
public policy of the United States.” Hurd v. Hodge, supra, 
334 U.S. 24, 34; 92 L.Ed 1187, 1195. That same public 
policy should require an end to racial discrimination in 
restaurants. Indeed, that same public policy was dramat­
ically manifested on August 2, 1963 when Ambassador 
Stevenson announced to the Security Council of the United 
Nations that our government would end the sale of military 
equipment to the Union of South Africa by the end of 
1963, because of “the evil business of apartheid”. Ambas­
sador Stevenson, in referring to the many manifestations 
of apartheid in South Africa, including segregation in pub­
lic accommodations, declared that “such indignities are an 
anachronism that no progressive society can tolerate, and 
the last vestige must be abolished with all possible speed.”4 
With our public policy thus nobly proclaimed to the rest 
of the world, it is inconceivable that, where the choice is 
before us, we could assume a posture any less noble within 
our own nation.

*The New York Times, August 3, 1963, p. 6.



15

5. The State begs the question when it asserts that 
the restaurant owner has the “right” to select his cus­
tomers on the basis of race. First, such “rights” as he may 
possess and which are legally enforceable, derive their 
operable force from the State, and the participation of the 
State in this situation has already been discussed at length. 
Second, the private use of private property has at com­
mon law always been subject to a variety of judge-made 
restrictions, and thus the hoary maxim, sic utere tuo, ut 
alienum non laedas. In further illustration, it is a com­
monplace of the common law that the use of one’s property 
for a noxious purpose will subject one to civil liability for 
maintaining a nuisance, and will also justify the exercise of 
the State’s police power to terminate or control that use, 
cf. Commonwealth v. Alger, 7 Cush. 53; 61 Mass. 53; and 
strict liability, regardless of care, follows from the main­
tenance on one’s property of an extraordinary hazard, 
Rylands v. Fletcher, 1868, L. R. 3 H.L. 330, 338. Again, 
one cannot deprive the community of the alienable use of 
one’s own property in violation of the judge-made rules 
against perpetuities and accumulations, and other exam­
ples of common law restrictions abound in the field of fu­
ture interests. Indeed, as a principle of federal constitu­
tional law, a municipality may affirmatively prohibit 
racial dismrimination by restaurants and provide criminal 
sanctions for violations, and without doing constitutional 
violence to the owners’ asserted rights of liberty and prop­
erty. District of Columbia V. John R. Thompson Company, 
Inc., 346 U.S. 100; 97 L.Ed. 1480; 83 S.Ct. 1007 (1952).

As the Court said in Nebbia v. New York, 291 U.S. 
502, 525; 78 L.Ed. 940, 948; 54 S.Ct. 505 (1934) :

“Under our form of government the use of prop-



16

erty and the making of contracts are normally 
matters of private and not of public concern. The 
general rule is that both shall be free of govern­
mental interference. But neither property rights 
nor contract rights are absolute; for govern­
ment cannot exist if the citizen may at will use 
his property to the detriment of his fellows, or 
exercise freedom of contract to work them harm.”

A striking illustration of choice between conflicting 
property rights occurred in Miller v. Schoene, 276 U.S. 
272; 72 L.Ed. 568; 48 S.Ct. 246 (1928), where the State 
of Virginia had ordered the destruction of ornamental 
cedar trees to prevent contamination of nearby apple or­
chards with cedar rust. In upholding the State’s action, 
the Court said that:

“When forced to such a choice the state does not 
exceed its constitutional powers by deciding upon 
the destruction of one class of property in order to 
save another which, in the judgment of the legis­
lature, is of greater value to the public.” 276 U.S.
272, 279; 72 L.Ed. 568, 571.

In the case at bar, not merely property rights, but signifi­
cant human rights are at stake. Appellants submit that 
the Court here can and should make the kind of accommo­
dation between property rights and human rights as it 
made in Marsh V. Alabama, 326 U.S. 501, 539; 90 L.Ed. 
265, 270; 66 S.Ct, 276 (1946), where the Court concluded 
that:

“When we balance the Constitutional rights of 
owners of property against those of the people to



17

enjoy freedom of press and religion, as we must 
here, we remain mindful of the fact that the lat­
ter occupy a preferred position.”

Surely the right to racial equality, at this juncture of 
America’s historical development, shares with the freedom 
of press and religion an equally elevated position in the 
hierarchy of preferred constitutional rights.

Such accommodations of conflicting constitutional 
pressures have, of course, characterized the Court’s deter­
minations in a variety of situations. Freedom of speech 
and assembly is typically weighed against an asserted 
clear and present danger. Cantwell v. Connecticut, 310 
U.S. 296; 84 L.Ed. 1213; 60 S.Ct. 900 (1940). The com­
mand of religious disestablishment has been leavened to 
accommodate the needs of public safety. Everson V. Board 
of Education, 330 U.S. 1; 91 L.Ed. 711; 67 S.Ct. 504 
(1947). The many meanings of procedural due process de­
fine and modify our criminal jurisprudence in a system of 
ordered liberty. Palko v. Connecticut, 302 U.S. 319; 82 
L.Ed. 288; 58 S.Ct. 149 (1937). How far a state may go 
in regulating interstate commerce without unduly burden­
ing it is a recurrent paradox. Cf. Southern Pacific Co. v. 
Arizona, 325 U.S. 761; 89 L.Ed. 1915; 65 S.Ct. 1515 
(1945). And the reasonableness of classifications and dis­
criminations under the equal protection clause itself has 
frequently required resolution by the Court. McGoivan v. 
Maryland, 366 U.S. 420; 6 L.Ed.2d 393; 81 S.Ct. 1101 
(1961).* 5

5But of course only the most extraordinary circumstances, such as 
the exigencies of wartime security, can justify discrimination based on 
race. Hirabayashi v. United States, 320 U.S. 81; 87 L.Ed. 1774; 63
S. Ct. 1375 (1943).



18

In the instant case the conflict between property- 
rights and civil rights should and must be resolved against 
the use of state laws such as § 509.141 which aid racial dis­
crimination by restaurant owners. Moreover, such a res­
olution need not imply the assertion of any absolutist prin­
ciples which would necessarily embarrass judicial flexi­
bility where it may be needed in the future. As the Court 
said in Burton v. Wilmington Parking Authority, 365 U.S. 
715, 725; 6 L.Ed.2d 45, 52; 81 S.Ct. 856 (1961) :

“ . . . respondent’s prophecy of nigh universal ap­
plication of a constitutional precept so peculiarly 
dependent for its invocation upon appropriate 
facts fails to take into account ‘Differences in cir­
cumstances [which] beget appropriate differences 
in law,’ Whitney v State Tax Com. 309 US 530,
542, 84 L ed 909, 915, 60 S Ct 635.”

This same approach, in the area of religious disestablish­
ment, is embodied in Mr. Justice Brennan’s opinion in 
School District of Abington V. Schempp, supra:

“These considerations bring me to a final con­
tention of the school officials in these cases: that 
the invalidation of the exercises at bar permits 
this Court no alternative but to declare unconsti­
tutional every vestige, however slight, of coopera­
tion or accommodation between religion and gov­
ernment. I cannot accept that contention. While 
it is not, of course, appropriate for this Court to 
decide questions not presently before it, I venture 
to suggest that religious exercises in the public 
schools present a unique problem. For not every 
involvement of religion in public life violates the



19

Establishment Clause. Our decision in these cases 
does not clearly forecast anything about the con­
stitutionality of other types of interdependence 
between religious and other public institutions.”
31 Law Week, 4683, 4710.

Appellants offer, then, no startling novelty of the 
law, either in substance or approach. The precedents are 
bountiful, the approach is traditional. “There is here no 
seismic innovation. The edifice of justice stands, its sym­
metry to many, greater than before.” Cardozo, J., in Palko 
V. Connecticut, 302 U.S. 319, 328; 82 L.Ed. 288, 294.

II.

Apart from the participation of the police and 
the state courts herein, the discriminatory ac­
tion of Shell’s City itself constituted state action, 
since by virtue ©f the Florida restaurant licens­
ing law, Florida Statutes Chapter 509, together 
with the regulations promulgated thereunder, 
the State has, within the meaning of the BUR­
TON y. WILMINGTON PARKING AUTHOR­
ITY, “so far insinuated itself into1 a position of 
interdependence” with restaurants “that it must 
be recognized as a joint participant in the chal­
lenged activity.”

The Florida legislature has declared that the restau­
rant business is intimately affected with the public in­
terest and Chapter 509 describes in great detail the pub­
lic duties and responsibilities of the restaurants. The 
legislature has established the Florida Hotel and Restau­



20

rant Commission,6 which has continuing regulatory super­
vision over “public food establishments”, and the legisla­
ture requires that the Commissioner shall execute the 
laws governing their inspection and regulation “for the 
purpose of safeguarding the public health, safety, and wel­
fare.”7 8 Having thus stated the public interest of the State 
of Florida in the restaurant business, Chapter 509 then 
proceeds to elaborate upon the details of its regulation. 
Thus, it requires approval by the Commissioner of the 
architect’s plans for the erection or remodeling of any 
restaurant.s It regulates fire escapes, stairways and 
exits.9 It regulates plumbing, lighting, heating, cooling 
and ventilation facilities.10 It requires every restaurant to 
obtain a license as a “public food service establishment”,11 
makes it a misdemeanor for such an establishment to 
operate without a license, and sets forth the procedure 
for revocation of such licenses.12 It forbids a municipality 
or county from issuing any occupational license unless the 
Commissioner has first licensed the restaurant.13 And it 
establishes an advisory council of private restaurants and 
hotels for the purpose of and “to suggest means of better 
protecting the health, welfare and safety of persons util­
izing the services offered by the industries represented 
on the council.”14

The statute pursuant to which Appellants were ar­
rested, § 509.141, is an integral part of the above Chap­

6Florida Statutes § 509.012 (App. 6).
7Florida Statutes § 509.032(1) (App. 7).
8Florida Statutes § 509.211(4) (App. 11).
’Florida Statutes § 509.211(1) (App. 10).
10Florida Statutes § 509.221 (App. 15).
u Florida Statutes § 509.241 (App. 18).
12Florida Statutes § 509.261 (App. 21).
13Florida Statutes § 509.271 (App. 24).
1+Florida Statutes § 509.291 (App. 25).



21

ter and an integral part of this elaborate legislative 
schema and program encompassing “public food estab­
lishments.”

In addition, extensive regulations have been pro­
mulgated by the Commissioner, prescribing in minute de­
tail the health and safety measures by which every res­
taurant must abide. Florida Administrative Code, Chap­
ters 175-1, 175-2 and 175-4. And it is especially important 
to note that the regulations are not concerned solely with 
health and safety measures, but in order to promote and 
safeguard the public welfare, also, inter alia, (1) provide 
that licenses may be issued only “to establishments op­
erated, managed or controlled by persons of good moral 
character” ;15 (2) prohibit publication or advertisement of 
false or misleading statements relating to food or bev­
erages offered to the public on the premises;16 and (3) 
provide that “achievement rating cards be conspicuously 
displayed”.17

Moreover, Chapter 509 is obviously not designed 
merely to raise revenue or merely compel compliance with 
zoning ordinances, as in the case of the typical occupa­
tional licensing statute. And even though the grant of an 
occupational license as such may be a condition precedent

15Florida Administrative Code, § 175 - 1.02. The 1963 session 
of the Florida Legislature further implemented the law by authorizing 
the Commission to revoke or suspend a license when “Any person 
interested in the operation of any such establishment, whether owner, 
agent, lessee, or manager, has been convicted within the past five years 
in this state or any other state or the United States of soliciting for 
prostitution, pandering, letting premises for prostitution, keeping a 
disorderly place, illegally dealing in narcotics, or any other crime in­
volving moral turpitude.” Chapter 63-63, Florida Statutes, § 509.261 
(4) (a).

16Florida Administrative Code § 175-4.02.
17Florida Administrative Code § 175-1.03.



22

to engaging in the restaurant business, nevertheless, un­
like the usual licensing requirements for merchants and 
tradesmen, Chapter 509 provides for the exercise of con­
tinuing administrative supervisory oversight and control, 
comparable to the supervision of businesses normally de­
scribed as public utilities.

In addition, Shell City, Inc., qua corporation, exists 
only by virtue of state law, and is subject to the general 
Florida laws governing the creation, regulation, and dis­
solution of corporate entities. Florida Statutes, Chapter 
608.

A restaurant, therefore, so linked to the state, and 
so involved in matters of obvious public concern, is a 
quasi-public instrumentality and cannot hide behind the 
gossamer defense of “private” action.

“A license to establish a restaurant is a license 
to establish a public facility and necessarily im­
ports, in law, equality of use for all members of 
the public . . . .  Those who license enterprises for 
public use should not have under our Constitution 
the privilege to license it for the use of only one 
race. For there is the overriding constitutional 
requirement that all state power be exercised so 
as not to deny the equal protection of any group.” 
Douglas, J., concurring in Garner v. Louisiana,
368 U.S. 157, 184, 185; 7 L.Ed.2d 207, 226.

And as Harlan, J., observed, dissenting in The Civil Rights 
Cases, with regard to state-licensed enterprises:

“The authority to establish and maintain them



23

comes from the public. The colored race is a part 
of that public. The local government granting 
the license represents them as well as all other 
races within its jurisdiction. A license from the 
public, to establish a place of public amusement, 
imports, in law, equality of right, at such places, 
among all the members of that public. This must 
be so, unless it be—which I deny—-that the com­
mon municipal government of all the people may, 
in the exertion of its powers, conferred for the 
benefit of all, discriminate or authorize discrimi­
nation against a particular race, solely because 
of its former condition of servitude.” 109 U.S.
3, 41; 27 L.Ed. 835, 849.

In Burton v. Wilmington Parking Authority, supra, 
the Delaware statute in question was not unlike Florida 
Statutes § 509.141, for it provided that:

“No keeper of an inn, tavern, hotel, or restaurant, 
or other place of public entertainment or refresh­
ment of travelers, guests, or customers shall be 
obliged, by law, to furnish entertainment or re­
freshment to persons whose reception or enter­
tainment by him would be offensive to the major 
part of his customers, and would injure his busi­
ness.” 365 U.S. 715, 717; 6 L.Ed.2d 46, 47.

Notwithstanding this statutory provision, the Court con­
cluded in Burton that the restaurant, because of its status 
as the city’s lessee and because of its many other intimate 
involvements with the city, was not, even though pri­
vately owned, insulated from the scope of the Fourteenth 
Amendment.



24

Burton was, of course, only one of many instances in 
which the Court has held the action of an ostensibly pri­
vate party to be, in constitutional contemplation, the act 
of the government. Thus in Public Utilities Commission 
V. Poliak, 343 U.S. 451; 96 L.Ed. 1068; 72 S.Ct. 813 
(1952), the Court held that action of the Capital Transit 
Company constituted governmental action by virtue of its 
operating under the regulatory supervision of the Public 
Utilities Commission of the District of Columbia. To like 
effect was Baldwin V. Morgan, 287 F.2d 750 (5th Cir., 
1961), where the Court of Appeals held that the Birming­
ham Terminal Company, albeit a private corporation, could 
not effect racial segregation in its waiting rooms, since the 
“terminal was admittedly a public utility holding itself 
out to serve all of the traveling public desiring to use the 
railroads operating through this station in Birmingham.” 
287 F.2d 750, 755. The Court added that:

“When in the execution of that public function 
it is the instrument by which state policy is to be, 
and is, effectuated, activity which might other­
wise be deemed private may become state action 
within the Fourteenth Amendment.” 287 F.2d 
750, 755.

Appellants submit that where racial discrimination is prac­
ticed, there should be no difference in constitutional con­
sequences between such traditional “public utilities” as a 
transit company or a railroad terminal company, and a 
“public food service establishment” licensed and regulated 
under state law, for the extent of state involvement is no 
less significant in the latter case. ,

Moreover, the constitutional consequences of racial



25

discrimination by the restaurant should be no different 
than those determined by the Court in the case of the com­
pany town in Marsh v. Alabama, supra, where the Court 
stated that:

“In our view the circumstance that the property 
rights to the premises where the deprivation of 
liberty, here involved, took place, were held by 
others than the public, is not sufficient to justify 
the State’s permitting a corporation to govern a 
community of citizens so as to restrict their fun­
damental liberties and the enforcement of such 
restraint by the application of a state statute.”
326 U.S. 501, 509; 90 L.Ed. 265, 270.

Appellants further contend that the discrimination 
by Shell’s City was no more “an individual invasion of in­
dividual rights” than was the action of the Democratic 
Party in Smith v. Allwright, 321 U.S. 649; 88 L.Ed. 987; 
64 S.Ct. 757 (1944), where the Court outlawed the Texas 
white primary and ruled that even though the Democratic 
party in Texas had been characterized as a “voluntary as­
sociation” under Texas law, nevertheless, since the me­
chanics of the primary were prescribed in detail by State 
law and since the party performed duties Imposed by State 
statutes, the duties it performed did not become matters 
of private law merely because performed by a “private 
political party”. The Court stated that:

“If the state requires a certain electoral proce­
dure, prescribes a general election ballot made up 
of party nominees so chosen and limits the choice 
of the electorate in general elections for state of­
fices, practically speaking, to those whose names



26

appear on such a ballot, it endorses, adopts and 
enforces the discrimination against Negroes, 
practiced by a party entrusted by Texas law with 
the determination of the qualifications of partici­
pants in the primary. This is state action within 
the meaning of the Fifteenth Amendment.” 321 
U.S. 649, 664; 88 L.Ed. 987, 997.

To like effect were the obligations imposed upon the “pri­
vate” collective bargaining agent in Steele v. Louisville 
& Nashville Railroad Company, 323 U.S. 192; 89 L.Ed. 
173; 65 S.Ct. 226 (1944).

Appellants submit that the interdependence of the 
restaurant and the State imposes a positive Constitutional 
duty upon the restaurant to respect the rights of all cus­
tomers to be treated and served without regard to their 
race. Shell’s City has nineteen departments in its em­
porium. It invites the entire public, white and colored 
alike, to buy its wares in eighteen of the departments, 
without discrimination. Only in the nineteenth, the res­
taurant, does it draw the line. Whatever may be its Con­
stitutional obligations vel non to sell or not sell notions, 
hardware, clothing or the like to persons of color in the 
other eighteen departments, it clearly has the Constitu­
tional obligation to refrain from racial discrimination in 
its restaurant.

If it be concluded that the majority in The Civil 
Rights Cases may have rejected Justice Harlan’s view with 
respect to the effect of state licensing laws, then and to 
that extent Appellants pray that the Court no longer fol­
low the majority’s ruling. Indeed, the rulings of the Court 
in the subsequent cases of Burton, Poliak, and Smith V.



27

Allwright, above, depart from any such implications con­
tained in Justice Bradley’s opinion, and it would appear, 
therefore, that the Court need no longer be bound thereby.

III.

The racial discrimination practiced by Shell’s 
City is engendered by racial customs prevalent 
in Miami and throughout the State of Florida, 
and the pressures, of state and local customs 
which were brought to bear upon the Appel­
lants, necessarily constituted a denial by state 
action of Appellants’ rights to the equal protec­
tion of the laws within the meaning of the 
Fourteenth Amendment.

In The Civil Rights Cases, supra, the Court stated 
that:

“civil rights such as are guaranteed by the Con­
stitution against state aggression, cannot be im­
paired by the wrongful acts of individuals, un­
supported by state authority in the shape of law, 
customs, or judicial or executive proceedings.”
109 U.S. 1, 17; 27 L.Ed. 835, 841 (Emphasis sup­
plied.)

The existence and force of such customs was made strik­
ingly clear by one of the State’s own witnesses in the case 
at bar. Mr. Warren C. Williams, vice-president of Shell’s 
City, testified that the policy of Shell’s City not to serve 
colored people is “based upon the customs, the habits and 
what we believe to be the desire of the majority of the 
white people of this county” ; that “it goes back to what



28

is the custom, that is, the tradition of what is basically 
observed in Dade County would be the bottom of it” ; that 
“it is the customs and traditions and practice in this 
county—not only in this county but in this part of the 
state and elsewhere, not to serve whites and colored peo­
ple seated in the same restaurant” ; and that “if we went 
into a thing of trying to break that barrier, we might have 
racial trouble, which we don’t want.” (R. 29, 30)

Not only do these customs exist, but their underlying 
prejudices have been perpetuated and reinforced by a va­
riety of enactments of the State of Florida which restrict 
the liberties of colored people and humiliate them as human 
beings. The Florida Constitution provides that white and 
colored children shall not be taught in the same school.18 
Separation of the races is required on railroads and in 
railroad waiting rooms.19 Segregation of the races is re­
quired by county jails.20 21 And marital and sexual congress 
between the races is prohibited and restricted with such 
elaborate reiteration as to suggest involvement in a para­
noid ritual.31

But even apart from these enactments, “long-accepted 
customs and the habits of a people may generate ‘law’ as 
surely as a formal legislative declaration, and indeed, some­
times even in the face of it.” Frankfurter, J., concurring 
in Terry v. Adams, 345 U.S. 461, 475; 97 L.Ed. 1152, 1163; 
73 S.Ct. 809 (1953).

18Florida Constitution, Article X II, § 12 (App. 1).
19Florida Statutes §§ 352.03-352.18 (App. 1-6).
20Florida Statutes §§ 950.05-950.08 (App. 30-31).
21Florida Constitution, Article XVI, § 24 (App. 1 ); Florida 

Statutes §§ 798.04; 798.05; 741.11-741.16 (App. 26-28).



29

And as Mr. Justice Douglas observed, concurring in
Garner v. Louisiana, supra:

“Though there may have been no State law or mu­
nicipal ordinance that in terms required segrega­
tion of the races in restaurants, it is plain that 
the proprietors in the instant cases were segre­
gating blacks from whites pursuant to Louisi­
ana’s custom. Segregation is basic to the struc­
ture of Louisiana as a community; the custom 
that maintains it is at least as powerful as any 
law.” 368 U.S. 157, 181; 7 L.Ed.2d 207, 224.

It is Appellants’ position that the word “state” as 
used in the Fourteenth Amendment need not be confined 
to the political representatives of the people, i.e., the exec­
utive, the legislature and the judiciary. Obviously, the peo­
ple themselves can act politically and directly by constitu­
tional enactment, and by such enactment, violate guaran­
tees of the Federal Constitution. Thus, in Neal v. Dela­
ware, 103 U.S. 370; 26 L.Ed. 567 (1881) the Court con­
cluded that the Fifteenth Amendment nullified a provi­
sion of the constitution of Delaware which had purported 
to restrict the sufferage to white persons. Appellants sub­
mit that if action by the people themselves, as in the case 
of a constitutional enactment, amounts to state action, then 
action by the people themselves, even though not mani­
fested in the legal formalism of a constitutional enactment, 
may likewise constitute state action where it is in the form 
of the mass pressure of customs and prejudices which 
coerce the individual private party into compliance.22 In­

22And the “mental urges” behind the restaurant owner’s decision 
to discriminate would be irrelevant. Peterson v. Louisiana, supra, 31 
Law Week 4475, 4476.



30

deed, if the agents and delegates of the people—the legis­
lators, the administrators and the judges—are restrained 
from effectuating racial discrimination, then it should fol­
low a fortiori, and it would be a strange anomaly if it were 
otherwise, that the principal, namely the people them­
selves, should be subject to the same Federal Constitutional 
prohibitions. Section 2 of the Declaration of Rights of the 
Florida Constitution explicitly provides that “All political 
power is inherent in the people.” Translated into the terms 
of the instant case, the people of the State of Florida, act­
ing as the “state”, compelled the restaurant owner to dis­
criminate and thus the people of the state, constituting the 
“state”, denied Appellants the equal protection of the laws.

CONCLUSION

For the foregoing reasons, Appellants pray the Court 
to reverse the judgments below and order that judgments 
of acquittal be entered as to all of the Appellants.

Respectfully submitted,

ALFRED I. HOPKINS, 
TOBIAS SIMON and 
HOWARD W. DIXON 
Counsel for Appellants 
223 S. E. First Street 
Miami, Florida

By-
Alfred I. Hopkins



31

CERTIFICATE OF MAILING

I, ALFRED I. HOPKINS, counsel for Appellants and 
a member of the Bar of the Supreme Court of the United
States, hereby certify that on August__ , 1963, I served
copies of the foregoing Brief for the Appellants on the 
Appellee, STATE OF FLORIDA, by mailing a copy there­
of in a duly addressed envelope with postage prepaid to 
the office of RICHARD E. GERSTEIN, State Attorney, 
Dade County Courthouse, Miami, Florida, and by further 
mailing a copy thereof to the Honorable RICHARD 
ERVIN, Attorney General of the State of Honda, Capitol 
Building, Tallahassee, Florida.

Alfred I. Hopkins



A P P E N D I X
TO BRIEF FOR THE APPELLANTS

Florida Constitution, Article XII, § 12 provides as 
follows:

“White and colored children shall not be taught 
in the same school, but impartial provision shall 
be made for both.”

Florida Constitution, Article XVI, § 24, provides as 
follows:

“All marriages between a white person and a 
negro, or between a white person and a person 
of negro descent to the fourth generation, inclu­
sive, are hereby forever prohibited.”

Set forth below are the sections of the Florida Stat­
utes cited in the foregoing brief:

352.03 First-class tickets and accommodations for 
negro persons.—All railroad companies doing business in 
this state shall sell to all respectable negro persons first- 
class tickets, on application, at the same rates that white 
persons are charged, and shall furnish and set apart for 
the use of such negro persons who purchase such first- 
class tickets a car or cars in each passenger train, as may 
be necessary, equally as good and provided with the same 
facility for comfort as shall or may be provided for whites 
using and traveling as passengers on first-class tickets.

No conductor or person in charge of any passenger 
train on any railroad shall suffer or permit any white 
person to ride, sit or travel, or to do any act or thing to 
insult or annoy any negro person who shall be sitting,



App. 2

riding and traveling, in said car so set apart for the use 
of negro persons, nor shall he or they, while in charge of 
such train, suffer or permit any negro person, nor shall 
such person attempt to, ride, sit or travel in the car or 
cars set apart for the use of the white persons traveling 
as first-class passengers; but female colored nurses, hav­
ing the care of children or sick persons, may ride and 
travel in such car.

352.04 Separate accommodations for white and 
colored passengers.—-All railroad companies and other 
common carriers doing business in this state shall provide 
equal separate accommodations for white and colored 
passengers on railroads, and all white and colored passen­
gers occupying passenger cars which are operated in this 
state by any railroad company or other common carrier 
are hereby required to occupy the respective cars, or 
divisions of cars, provided for them, so that the white 
passengers shall occupy only the cars or divisions of cars, 
provided for white passengers, and the colored passengers 
only the cars, or division of cars, provided for colored 
passengers; provided, that no railroad shall use divided 
cars for the separation of the races without the permis­
sion of the railroad commission, nor any car divided for 
that purpose in which the divisions are not permanent.

352.05 Passenger occupying part of car set apart for 
opposite race; penalty.—Any white person unlawfully and 
willfully occupying, as a passenger, any car or part of car 
not so set apart and provided for white passengers, and 
any colored passenger unlawfully and willfully occupying, 
as a passenger, any car or part of car not so set apart and 
provided for colored passengers, shall, upon conviction, be 
punished by a fine not exceeding five hundred dollars, or



App. 3

imprisonment not exceeding six months. Nothing in this 
section shall apply to persons lawfully in charge of or 
under the charge of persons of the other race.

352.08 Penalty for violations §352.04.—If any rail­
road company or other common carrier shall violate any 
of the provisions of §352.04, or any rule, order or regula­
tion prescribed by the railroad and public utilities com­
missioners under the authority of §350.20, such company 
or common carrier shall thereby incur for each such of­
fense a penalty of not more than five hundred dollars, to 
be fixed, imposed and collected by said railroad and public 
utilities commissioners in the manner provided in §350.28.

352.07 Separate accommodations for w h i t e  and 
negro passengers on electric cars.—All persons operating 
urban and suburban (or either) electric cars as common 
carriers of passengers in this state, shall furnish equal 
but separate accommodations for white and negro passen­
gers on all cars so operated.

352.08 Method of division in electric cars.—The 
separate accommodations for white and negro passengers 
directed in §352.07 shall be by separate cars, fixed divi­
sions, movable screens, or other method of division in the 
cars.

352.09 Divisions to be marked “For White” or “For 
Colored.”—The car or division provided for white passen­
gers shall be marked in plain letters in a conspicuous 
place, “For White,” and the car or division provided for 
negro passengers shall be marked in plain letters in a 
conspicuous place, “For Colored.”



App. 4

352.10 Not to apply to nurses.—Nothing in §§352.07, 
352.08, 352.09, 352.12, 352.13, 352.14, or 352.15 shall be so 
construed as to apply to nurses of one race attending chil­
dren or invalids of the other race.

352.11 Operating extra cars for exclusive use of 
either race.—Sections 352.07-352.15 shall not be so con­
strued as to prevent the running of special or extra cars, 
in addition to the regular schedule cars, for the exclusive 
accommodation of either white or negro passengers.

352.12 Separation of races; penalty.—Any person 
operating urban and suburban (or either) electric cars as 
common carriers of passengers in this state, failing, re­
fusing or neglecting to make provisions for the separa­
tion of the white and negro passengers on such cars as 
required by law, shall, for each offense, be deemed guilty 
of a misdemeanor, and upon conviction thereof shall be 
fined not less than fifty dollars nor more than five hun­
dred dollars. This penalty may be enforced against the 
president, receiver, general manager, superintendent or 
other person operating such cars.

352.13 Duty of conductors ; penalty.—The conductor 
or other person in charge of any such car shall see that 
each passenger is in the car or division furnished for the 
race to which such passenger belongs, and any conductor 
or other person in charge of such car who shall permit 
any passenger of one race to occupy a car or division pro­
vided for passengers of the other race, shall be deemed 
guilty of a misdemeanor, and upon conviction thereof 
shall be punished by a fine of not exceeding twenty-five 
dollars, or by imprisonment in the county jail for not ex­
ceeding sixty days.



App. 5

352.14 Violation by passengers; conductor may ar­
rest and eject; penalty.—Any passenger belonging to one 
race who willfully occupies or attempts to occupy any 
such car, or division thereof, provided for passengers of 
the other race, or who occupying such car or division 
thereof, refuses to leave the same when requested so to 
do by the conductor or other person in charge of such car, 
shall be deemed guilty of a misdemeanor, and upon con­
viction thereof shall be punished by a fine of not exceed­
ing fifty dollars, or by imprisonment in the county jail 
for not exceeding three months. The conductor or other 
person in charge of such car is vested with full power and 
authority to arrest such passenger and to eject him or her 
from the car.

352.15. Each day of refusal separate offense.—Each 
day of refusal, failure or neglect to provide for the sepa­
ration of the white and negro passengers as directed in 
this chapter shall constitute a separate and distinct of­
fense.

352.16. Separate waiting rooms and ticket windows 
for white and negro passengers.—All railroad companies 
and terminal companies in this state shall provide sep­
arate waiting rooms and ticket windows of equal accom­
modation for white and colored passengers at all depots 
along lines of railway owned, controlled or operated by 
them, and at terminal passenger stations controlled and 
operated by them.

357.17 Penalty for refusal to comply with law or 
regulations.-—If any railroad company or terminal com­
pany in this state shall refuse to comply with any provi­
sion of §352.16, or to comply with any rule, order or regu­



App. 6

lation provided or prescribed by the railroad and public 
utilities commissioners under the authority of §350.21, 
such company shall thereby incur a penalty for each such 
offense of not more than five thousand dollars, to be 
fixed, imposed and collected by said railroad and public 
utilities commissioners in the manner provided by law.

352.18 Penalty for not providing separate cars for 
white and negro persons—If any railroad company or any 
conductor or other employee thereof, or any person what­
ever, shall violate the provisions relating to the accommo­
dation of white or negro passengers, he or they shall be 
punished by a fine not exceeding five hundred dollars, 
unless otherwise provided for.

If any railroad company shall fail to comply with said 
provisions of law the punishment herein prescribed may 
be inflicted upon the president, receiver, general manager 
or superintendent thereof, or upon each and every one of 
them.

509.012 Hotel and restaurant commission.—There is 
created a hotel and restaurant commission, for which the 
usual facilities for transacting its business shall be fur­
nished the same as for other executive departments of 
the state government.

509.022 Appointment of hotel and restaurant com­
missioner; term of office; bond and salary.—The governor 
shall appoint a hotel and restaurant commissioner whose 
term of office shall begin and run concurrently with the 
regular terms of office of the successive governors of 
this state and who shall give bond in the sum of ten thou­
sand dollars for the faithful performance of his duties, to



App. 7

be approved by the governor. He shall receive a salary 
as provided in the general biennial appropriations act, or 
as hereafter provided by law, and shall be reimbursed for 
travel in connection with the duties of the office in ac­
cordance with the provisions of §112.061.

509.032 Duties.—

(1) GENERAL.—The hotel and restaurant commis­
sioner shall carry out and execute all of the provisions of 
this chapter and all other laws now in force or which may 
hereafter be enacted relating to the inspection or regula­
tion of public lodging and public food service establish­
ments for the purpose of safeguarding the public health, 
safety and welfare. The commissioner shall be responsible 
for ascertaining that no establishment licensed by this 
commission shall engage in any misleading advertising or 
unethical practices as defined by this chapter and all 
other laws now in force or which may hereafter be en­
acted. He shall keep accurate account of all expenses 
arising out of the performance of his duties and shall file 
monthly itemized statements of such expenses with the 
comptroller, together with an account of all fees collected 
under the provisions of this chapter.

(2) SEMI-ANNUAL INSPECTION.—The hotel and 
restaurant commissioner shall inspect, or cause to be in­
spected, at least twice annually, every public lodging and 
food service establishment in this state, and for that pur­
pose he shall have the right of entry and access to such 
establishments at any reasonable time.

(3) AUTHORIZED TO MAKE RULES.—The hotel 
and restaurant commissioner shall make such rules and



App. 8

regulations as are necessary to carry out the provisions of 
this chapter in accordance with its true intent.

509.141 Ejection of undesirable guests; notice, pro­
cedure, etc.—

(1) The manager, assistant manager, desk clerk or 
other person in charge or in authority in any hotel, apart­
ment house, tourist camp, motor court, restaurant, room­
ing house or trailer court shall have the right to remove, 
cause to be removed, or eject from such hotel or apart­
ment house, tourist camp, motor court, restaurant, room­
ing house or trailer court in the manner hereinafter pro­
vided, any guest of said hotel, apartment house, tourist 
camp, motor court, restaurant, rooming house or trailer 
court, who, while in said hotel, apartment house, tourist 
camp, motor court, restaurant, rooming house or trailer 
court premises is intoxicated, immoral, profane, lewd, 
brawling, or who shall indulge in any language or conduct 
either such as to disturb the peace and comfort of other 
guests of such hotel, apartment house, tourist camp, 
motor court, restaurant, rooming house or trailer court 
or such as to injure the reputation or dignity or standing 
of such hotel, apartment house, tourist camp, motor court, 
restaurant, rooming house or trailer court, or who, in the 
opinion of the management, is a person whom it would be 
detrimental to such hotel, apartment house, tourist camp, 
motor court, restaurant, rooming house, or trailer court 
for it any longer to entertain.

(2) The manager, assistant manager, desk clerk or 
other person in charge or in authority in such hotel, 
apartment house, tourist camp, motor court, restaurant, 
rooming house or trailer court shall first orally notify



App. 9

such guest that the hotel, apartment house, tourist camp, 
motor court, restaurant, rooming house or trailer court no 
longer desires to entertain him or her and request that 
such guest immediately depart from the hotel, apartment 
house, tourist camp, motor court, restaurant, rooming 
house or trailer court. If such guest has paid in advance 
the hotel, apartment house, tourist camp, motor court, 
restaurant, rooming house or trailer court shall, at the 
time oral or written request to depart is made, tender to 
said guest the unused or unconsumed portion of such ad­
vance payment. Said hotel, apartment house, tourist camp, 
motor court, restaurant, rooming house or trailer court 
may, if its management so desires, deliver to such guest 
written notice in form as follows:

“You are hereby notified that this establishment no 
longer desires to entertain you as its guest and you are 
requested to leave at once and to remain after receipt of 
this notice is a misdemeanor under the laws of this state.”

(3) And any guest who shall remain or attempt to 
remain in such hotel, apartment house, tourist camp, 
motor court, restaurant, rooming house or trailer court 
after being requested, as aforesaid, to depart therefrom, 
shall be guilty of a misdemeanor, and shall be deemed to 
be illegally upon such hotel, apartment house, tourist 
camp, motor court, restaurant, rooming house or trailer 
court premises.

(4) In case any such guest, or former guest, of such 
hotel, apartment house, tourist camp, motor court, res­
taurant, rooming house or trailer court, or any other per­
son, shall be illegally upon any hotel, apartment house, 
tourist camp, motor court, restaurant, rooming house or



App. 10

trailer court premises, the management, or any employee 
of such hotel, apartment house, tourist camp, motor court, 
restaurant, rooming house or trailer court, may call to its 
assistance any policeman, constable, deputy sheriff, 
sheriff or other law enforcement officer of this state, and 
it shall be the duty of each member of the aforesaid 
classes of officers, upon request of such hotel, apartment 
house, tourist camp, motor court, restaurant, rooming 
house or trailer court management, or hotel, apartment 
house, tourist camp, motor court, restaurant, rooming 
house or trailer court employee, forthwith and forceably, 
if necessary, to immediately eject from such hotel, apart­
ment house, tourist camp, motor court, restaurant, room­
ing house or trailer court, any such guest, or former 
guest, or other person, illegally upon such hotel, apart­
ment house, tourist camp, motor court, restaurant, room­
ing house or trailer court premises, as aforesaid.

509.211 Safety regulations.—

(1) Every public lodging or public food service 
establishment shall have signs displayed in all hallways 
indicating all fire escapes, stairways and exits.

(2) Whenever it shall be proposed to erect a build­
ing three stories or more in height, intended for use as a 
public lodging establishment in this state, the owner, con­
tractor or builder of such establishment shall construct 
said establishment so that one main hall, on each floor 
above the ground floor, shall extend to the outside wall 
at each end; or such main hall may turn at either or both 
ends, provided the distance from the main hall to the out­
side of the building, at any point, is no more than the 
depth of the room facing the outside of the building, and



App. 11

provided further that the hall so turned shall extend to 
an exterior wall in which a door or window must be pro­
vided.

(3) No building of four or more stories in height 
shall be constructed for or converted for use as a public 
lodging establishment unless it be of noncombustible 
material or fireproof construction. This provision shall 
not apply to buildings now being used for such purposes.

(4) Before the erection or remodeling of any build­
ing for use as a public lodging or public food service es­
tablishment is begun, the registered architect’s plans or 
registered engineer’s plans, with detailed specifications, 
shall be approved by the supervising architect or engineer 
of the hotel and restaurant commission; all plans, specifi­
cations and drawings submitted for the purpose of secur­
ing building permits from any state, county or municipal 
building inspector, or other officer having like jurisdic­
tion, shall bear the signature and seal of the architect or 
engineer and supervising architect or engineer of the 
hotel and restaurant commission before said building per­
mit is issued; when such plans and specifications are sub­
mitted to the supervising architect or engineer of the 
hotel and restaurant commission for approval, they shall 
be accompanied by a remittance of an amount equal of 
the license fee prescribed for an establishment of such 
size in this chapter, provided that new construction or re­
modeling costing ten thousand dollars or less need not be 
accompanied by plans of a registered architect or engineer 
but scaled drawings shall be submitted to the hotel com­
mission’s architect or engineer for approval, as a condi­
tion precedent to securing a building permit.



App. 12

(5) (a) Within sixty days after receipt of notice 
from the hotel and restaurant commissioner every public 
lodging establishment or public food service establishment 
in this state consisting of two stories in height must pro­
vide at least two means of exit, which shall consist of 
either fire escapes or stairways accessible to all occupants 
of the second floor which shall extend from the second 
floor to the ground or ground floor.

(b) Within sixty days after receipt of notice from 
the hotel and restaurant commissioner, every public lodg­
ing establishment or public food service establishment in 
the state consisting of more than two stories in height, 
shall be equipped with two means of exit, one of which 
shall be a complete fire escape consisting of iron, steel, 
concrete or other fireproof material, extending from the 
uppermost floor to the ground or ground floor and con­
necting with each floor above the ground floor by means 
of landings not less than six feet in length or four feet in 
width which shall be secured to the stirs not less than two 
feet in width with steps not less than six inches in tread 
with not more than a forty-five degree angle, such land­
ing or stairs if constructed on the exterior of the build­
ing, to be guarded by an iron, steel, or concrete railing 
not less than thirty inches in height.

(c) Where, in the opinion of the supervising archi­
tect or engineer of the hotel and restaurant commission 
it is evident on inspection that strict compliance with the 
above two paragraphs, (a) and (b), regarding construc­
tion of second means of exit of buildings would in no sub­
stantial way increase or improve the safety of a building, 
the supervising architect or engineer shall suggest that 
the licensee appeal to a board made up of at least two



App, 13

supervising architects or engineers and the commissioner 
for relief from the provisions of this section.

(d) Egress to all such fire escapes shall at all times 
be kept free and clear of all obstructions and doors lead­
ing to such fire escapes shall be constructed of fire re­
sistant materials, equipped with automatic closing devices 
and panic bolts and such doors shall only open outward to 
fire escapes on the exterior of the building.

(e) Fire escapes installed inside any such building 
shall be constructed of fireproof material including walls, 
floors, ceiling, windows, casements, stairs, hand railings 
and doors and all other parts comprising same. All egress 
to inside fire escapes shall be guarded by doors with an 
automatic closing device, panic bolts and such doors shall 
only open toward the descent of the fire escape.

(f) All fire escapes shall be constructed, installed, 
and placed under the supervision of the hotel commis­
sioner, who shall enact rules and regulations governing 
the same, which shall be in substantial conformity to the 
now existing code of national fire underwriters, relating 
to fire exits.

(g) All inside fire escapes shall be kept artifically 
lighted day and night by a circuit or means, separate and 
apart from the circuit or means providing for the general 
lighting of the said building.

(6) At every opening of a fire escape a red light 
shall be kept burning at all times and said light shall be 
connected to a circuit or means of lighting, separate and 
apart from the circuit or means providing for the general



App. 14

ligntmg of said building; there shall be posted and main­
tained in conspicuous places in each hall and in each guest 
room except in the hall or rooms on the ground floor of 
such buildings, plainly written notices reading “fire 
escapes are indicated by red lights,”

(7) Every public lodging or food service establish­
ment shall be provided with one fire extinguisher of a 
style and size approved by the national board of fire un­
derwriters on each floor containing twenty-five hundred 
square feet or less of floor area, and one additional fire 
extinguisher on each floor for each twentyfive hundred 
square feet or less of additional floor space. Such ex­
tinguishers shall be placed in a convenient location in a 
public hallway outside of the sleeping rooms at or near 
the head of the stairs and shall always be in a condition 
for use.

(8) Each bedroom or apartment in each public 
lodging establishment shall be equipped with a good sub­
stantial lock and key on each door opening to the outside 
or to an adjoining room or apartment, or to a hallway.

(9) (a) The hotel and restaurant commissioner shall 
inspect or cause to be inspected by a competent engineer, 
every elevator used to carry passengers and freight, in 
public lodging and public food service establishments in 
this state, and when it is found that elevators are in an 
unsafe condition, the hotel commissioner shall require 
that such elevators be put in safe condition. Thereupon 
the owner, manager or lessee of the building or the party 
in charge thereof, wherein such elevators may be located, 
shall immediately repair and put such elevator or ele­
vators in a safe condition.



App. 15

(b) This section shall not apply to hotels, apart­
ment houses, rooming houses or restaurants which now 
or hereafter maintain elevator service contracts or ele­
vator public liability insurance; provided such public 
lodging and public food service establishments shall an­
nually file with the hotel and restaurant commissioner a 
copy of an inspection report made under said service con­
tract, or elevator insurance policy.

(10) All elevator shafts located in public lodging and 
public food service establishments in this state shall be 
of noncombustible material, and they shall be constructed 
in accordance with rules and regulations made and pro­
mulgated by the hotel commissioner.

509.221 Sanitary regulations.—

(1) In all cities, towns and villages where a system 
of waterworks is maintained for public use every public 
lodging establishment and public food service establish­
ment therein operated shall, within sixty days after a 
receipt of notice from the hotel and restaurant commis­
sioner, be equipped with suitable water closets or closets 
for the accommodation of its guests, and such water 
closets or closets shall be connected by proper plumbing 
with sewerage and means of flushing such water closets 
or closets with the water of said system, in such manner 
as to prevent sewer gas or effluvia from arising there­
from. Provided, that each hotel, rooming house and res­
taurant shall maintain not less than one toilet for each 
sex, properly designated; and provided that each hotel 
and rooming house shall maintain one public bath on each 
floor for every fifteen guests, or major fraction of that 
number, rooming on that floor not provided with private



App. 16

or connecting bathrooms. Public baths shall not be re­
quired in hotels where each room is provided with bath.

(2) Every public lodging establishment and every 
public food service establishment shall be p r o p e r l y  
plumbed, lighted, heated, cooled or ventilated, and shall be 
conducted in every department with strict regard to the 
health, comfort, and safety of the guests or tenants; pro­
vided that such proper lighting shall be construed to apply 
to both daylight and artificial illumination, that such 
proper plumbing shall be constructed and plumbed accord­
ing to proper sanitary principles, and that such proper 
ventilation, or cooling, shall be construed to mean at least 
one door and one window" in each room.

(3) No room shall be used for a sleeping room 
which does not have an opening to the outside of the build­
ing, air shafts or courts. All operating windows in such 
rooms shall be properly screened and in each sleeping 
room there must be at least one window with opening so 
arranged as to provide easy access to the outside of build­
ing or courts.

(4) All hotels, rooming houses and restaurants in 
this state shall provide in the main public washroom clean 
towels for each guest; any standard commercial paper 
towels may be used; and in each bedroom furnish each 
guest with two clean individual towels so that no tw7o or 
more guests will be required to use the same towel unless 
it has first been washed. Such individual towels shall not 
be less than ten inches wide and fifteen inches long after 
being washed.

(5) All hotels shall provide each bed, bunk or cot



App. 17

or other sleeping place for the use of guests with pillow 
slips and under and top sheets of material containing 
64 x 64 thread count or better; each sheet to be made 
ninety-nine inches long and of sufficient width to com­
pletely cover the mattress and springs; provided, that a 
sheet shall not be used which measures less than ninety 
inches after being laundered. Sheets and pillow slips 
after being used by one guest, must be washed and ironed 
before they are used by another guest, a clean set being 
furnished each succeeding guest.

(6) All bedding, including mattresses, quilts, blan­
kets, pillows, sheets and comforts used in any hotel, apart­
ment house, rooming house or restaurant in this state, 
must be thoroughly aired, disinfected and kept clean; pro­
vided, that no bedding, including mattresses, quilts, blan­
kets, pillows, sheets or comforts shall be used which are 
worn out or are unfit for further use. No mattress on 
any bed in any hotel, apartment house, rooming house or 
restaurant shall be used which is made of moss, sea grass, 
excelsior, husks or shoddy. Any room in any hotel, apart­
ment house, rooming house or restaurant infested with 
vermin or bedbugs shall be fumigated, disinfected and 
renovated until said vermin and bedbugs are extermi­
nated.

(7) It is unlawful for any person to operate any 
place of business within the state where food is cooked or 
prepared without keeping all outside doors, windows and 
other similar openings of said place of preparation 
screened with wire netting of not less than sixteen mesh 
screening or protected by properly installed fans.

(8) The owner, tenant, operator or person in charge



App. 18

of any public lodging establishment or public food service 
establishment shall keep all flies out of said place.

(9) No person suffering from any contagious or 
communicable disease shall be employed in any hotel, res­
taurant, apartment house or rooming house to prepare or 
handle food, drink, dishes, towels, or linens, or in any 
other capacity whereby such disease might be communi­
cated to guests or tenants. All employees shall furnish 
health certificates including a Wassermann test, signed 
by a registered licensed physician of the state, whenever 
the hotel and restaurant commissioner or his deputy, in 
his discretion, deems it necessary for the protection of 
public health.

509.241 Licenses required; public lodging and food 
service establishments.—

(1) PUBLIC L O D G I N G  ESTABLISHMENTS; 
DEFINITION; LICENSES; EXCEPTION.—

(a) All buildings, groups of buildings, or other 
structures kept, used, maintained, advertised as, or held 
out to the public to be places where sleeping or house­
keeping accommodations are supplied for pay to transient 
or permanent guests or tenants, and apartments, except 
as hereinafter exempted, are defined and shall be licensed 
as public lodging establishments. Any reference in the 
laws of Florida to hotels, motels, motor courts, apartment 
houses, rooming houses, or similar establishments shall be 
construed to mean a public lodging establishment as here­
in defined unless a different intent is clearly evident.



App. 19

(b) The following are exempted from the provisions 
of paragraph (a) hereof:

1. All individually or collectively owned one, two, 
or three family dewelling houses or dwelling units and 
all of such houses or units which are not operated as a 
group, unless they are regularly rented to transients or 
held out to, or advertised to the public as places regularly 
rented to transients. For the purpose of this chapter 
transients are persons who are not legal residents of the 
community and who rent for periods of six months or less.

2. Dormitories and other living or sleeping facilities 
maintained by public or private schools, colleges, or uni­
versities primarily for the use of students, faculty or 
visitors.

3. All hospitals, nursing homes, sanitariums, and 
other similar places.

4. All places renting three rooms or less, unless they 
are advertised or held out to the public to be places that 
are regularly rented to transients.

(2) PUBLIC FOOD S E R V I C E  ESTABLISH­
MENTS; DEFINITION; LICENSES; EXCEPTIONS.—

(a) Every building, vehicle, or other structure of 
similar purpose, or any rooms or divisions in a building, 
vehicle, or other structure of similar purpose, or any place 
whatsoever, that is maintained and operated as a place 
where food is regularly prepared, served or sold for im­
mediate consumption on or in the vicinity of the premises 
is defined as, and shall be licensed as a public food service



App. 20

establishment. This shall specifically include establish­
ments preparing food to be called for or taken out by cus­
tomers, to be delivered to factories, construction camps, 
airlines and other similar locations for consumption at 
any place. Any references to a restaurant in the laws of 
Florida shall be construed to mean a public food service 
establishment as herein defined unless a different intent 
is clearly evident.

(b) The following are exempted from the provisions 
of paragraph (a) hereof:

1. Places maintained and operated by public or pri­
vate schools, colleges, or universities, primarily for the 
use of students and faculty.

2. Eating places maintained and operated by church­
es and religious or fraternal organizations primarily for 
the use of their members and associates.

3. Eating places located on airplanes, trains, buses, 
or watercraft which are common carriers.

4. Eating places maintained by hospitals, nursing 
homes, sanitariums and other similar places.

5. Theatres licensed under the provisions of §205.61, 
or any other license or occupational tax law enacted in 
lieu thereof, where the primary use is a theatre and pa­
tron service is limited to food items customarily served to 
the admittees of such theatres.

(3) LICENSES; A N N U A L  RENEWALS.—For 
every establishment coming within the provisions of sub­



App. 21

sections (1) and (2) of this section, the required license 
shall be obtained from the hotel and restaurant commis­
sioner. Such license shall not be transferable, and it shall 
be a misdemeanor for such an establishment to operate 
without a license. The commissioner may refuse a license, 
or a renewal thereof, to any establishment that is not con­
structed and maintained in accordance with the law and 
rules and regulations of the hotel and restaurant commis­
sion. Licenses shall be renewed annually, and the commis­
sioner shall adopt an appropriate regulation establishing 
a staggered schedule for license renewals which will avoid 
the necessity of all licenses being renewed on the same 
day of the year. Due regard shall be given in making the 
schedule to obtaining a relatively even distribution of 
license renewals coming due, and, thereby, to equalizing 
the work load of the commissioner’s office staff.

(4) APPLICATION FOR LICENSE; PENALTY 
FOR FAILURE TO APPLY.—It shall be the duty of every 
individual who enters the public lodging or public food 
service business to make application for the licensing of 
his establishment prior to the commencement of opera­
tion. Failure to make application and payment of fee re­
quired within thirty days following commencement of 
operations or within thirty days following the expiration 
date of an existing license shall constitute a misdemeanor 
and shall be punishable as such,

509.261 Revocation or suspension of licenses; fines; 
procedure.—

(1) (a) The hotel and restaurant commision may 
suspend or revoke the license of any public lodging or 
public food service establishment that has operated or is



App. 22

operating in violation of any of the provisions of this 
chapter or the rules and regulations promulgated by the 
hotel and restaurant commissioner relating thereto; such 
public lodging establishment or public food service es­
tablishment shall remain closed during the suspension or 
revocation of such license.

(b) Proceedings for the revocation of any such 
license shall be commenced by serving a copy of written 
notice. All notices to be served by the hotel and res­
taurant commissioner, provided for in this chapter, shall 
be delivered personally, or by a deputy commissioner, or 
by registered letter, to the owner, agent, lessee or man­
ager of such building or premises, setting forth the facts 
constituting the alleged violation, the law or regulation 
alleged to have been violated, and the time and place of 
hearing thereon. Any such owner, agent, lessee, or man­
ager shall at any such hearing have the right to cross- 
examine witnesses, produce witnesses in his defense and 
appear personally or by counsel. No such hearing shall 
be held within five days from date of service or mailing 
of notice unless the violation is of such a nature that 
extreme danger is imminent to the health, safety, or wel­
fare of the people: then in such an event the hotel and 
restaurant commissioner may immediately suspend any 
such license, but in any such case, the owner, agent, lessee 
or manager shall upon request, be entitled to a hearing 
at a time and place fixed by the hotel and restaurant 
commissioner within three days from the date of suspen­
sion.

(c) Proceedings of the hotel commission may be 
reviewed by certiorari to the circuit court of the circuit 
in which such licensed establishment is located and ap­



App. 23

peals from any decision of the circuit court may be taken 
to the supreme court of Florida in the same manner and 
subject to like conditions as appeals in chancery are taken.

(2) In lieu of the suspension or revocation of 
licenses, the commissioner, after complying with the pro­
cedural requirements prescribed by paragraph (b) there­
of, may impose fines against licensees for violations of 
this chapter or rules and regulations relating thereto. No 
fine so imposed shall exceed five hundred dollars for each 
offense, and all amounts collected shall be deposited with 
the state treasurer to the credit of the general revenue 
fund.

(3) (a) No license shall be suspended under this 
section for a period of more than twelve months. Every 
revocation under this section shall be for one year. No 
new license shall be issued to the licensee or to any other 
firm or corporation in which the licensee or anyone of 
its stockholders are interested, during such suspension or 
revocation. Every public lodging establishment and public 
food service establishment, the license for which has been 
suspended or revoked under the provisions of this section, 
shall remain closed during such suspension or revocation.

(b) The hotel commissioner is hereby given full 
power and authority to suspend or revoke any license 
issued by him for the operation of any hotel, apartment 
house or rooming house or restaurant, whenever the 
owner, lessee, or manager, or any other person having, 
exclusively or with others, either direct or indirect charge, 
control or management of such hotel, apartment house, 
rooming house, or restaurant, knowingly lets, leases or 
gives space or concession for gambling purposes or where



App. 24

gambling is to be carried on, in any manner or by any 
means denounced by any statute of this state, in such 
hotel, apartment house, rooming house or restaurant or 
in or upon any premises which are used in connection 
with, and are under the same charge, control or man­
agement as, such hotel, apartment house, rooming house 
or restaurant. The suspension or revocation shall be of 
the license in effect at the date of such suspension or 
revocation, even though such license may be a renewal of 
the license which was in effect when the cause for such 
suspension or revocation arose, and even though it may 
have been issued to a licensee other than the person, firm 
or corporation who held the license at the time such cause 
for such suspension or revocation arose.

(c) Proceedings for suspension or revocation under 
this section, and for review of such proceedings, shall be 
in accordance with those provisions of §509.261, which 
govern proceedings for suspension and revocation for the 
causes specified in said section.

(d) Every proceeding for suspension or revocation 
under this section shall be commenced within sixty days 
after the cause for suspension or revocation specified in 
paragraph (a) hereof arises.

509.271 Prerequisite for issuance of city or county 
occupational license.—No municipality or county shall 
originally issue an occupational license to any business 
coming under the provisions of this chapter until a license 
has been procured for such business from the hotel and 
restaurant commissioner.



App. 25

509.291 Advisory council; composition; purpose;
meeting’s; duties; etc.—

(1) There shall be an advisory council of eight 
members composed of the president and executive officer 
of the following organizations: Florida restaurant asso­
ciation, inc., Florida hotel association, inc., Florida apart­
ment house association, inc. and Florida motel or motor 
court association, inc. Other incorporated associations 
having similar interests and statewide membership 
may be represented on the council and shall be entitled 
to the same privileges upon making application and re­
ceiving the approval of the hotel and restaurant com­
missioner.

(2) The purpose of the advisory council is to pro­
mote better relations, understanding and cooperation be­
tween the industries represented on the council and be­
tween such industries and the hotel and restaurant com­
mission ; to suggest means of better protecting the health, 
welfare and safety of persons utilizing the services of­
fered by the industries represented on the council; and 
to give the commissioner the benefit of its knowledge and 
experience concerning the industries and individual busi­
nesses affected by the laws, rules and regulations ad­
ministered by the commissioner.

(3) (a) The advisory council may be called into ses­
sion by the hotel and restaurant commissioner at his dis­
cretion, or it may call itself into session if a majority of 
the council agrees that a meeting is necessary.

(b) Regardless of whether a meeting is called by 
the commissioner or by the council, the council must hold



App. 26

one regular meeting each year and may not hold more 
than one special meeting in each calendar month. All 
such meetings shall be held during one day.

(4) The members of the council shall receive no 
compensation for the performance of their duties here­
under, but the commissioner and the members of the coun­
cil who are the presidents of their respective associations 
shall be reimbursed for travel expenses as provided in 
§112.061, when they attend a meeting called in conformity 
with the requirements of this section. The executive of­
ficers of the several associations shall not be reimbursed 
for travel expense incurred in attending such meetings.

741.11 Marriages between white and negro persons 
prohibited.—-It is unlawful for any white male person 
residing or being in this state to intermarry with any 
negro female person; and it is in like manner unlawful 
for any white female person residing or being in this state 
to intermarry with any negro male person; and every 
marriage formed or solemnized in contravention of the 
provisions of this section shall be utterly null and void, 
and the issue, if any, of such surreptitious marriage shall 
be regarded as bastard and incapable of having or receiv­
ing any estate, real, personal or mixed, by inheritance.

741.12 Penalty for intermarriage of white and 
negro persons.—If any white man shall intermarry with 
a negro, or if any white woman shall intermarry with a 
negro, either or both parties to such marriage shall be 
punished by imprisonment in the state prison not exceed­
ing ten years, or by fine not exceeding one thousand 
dollars.



App. 27

741.13 County judges not to issue licenses for white 
and negro intermarriages.—All county judges are pro­
hibited from knowingly issuing a license to any person to 
intermarry against whom the disabilities in §741.11 speci­
fied may or do attach, under the penal sum of one thou­
sand dollars, to be recovered by action of debt in any court 
of record having jurisdiction, for the use of the school 
fund.

741.14 Penalty for violation of §741.11. — If any 
county judge shall knowingly and willfully issue a mar­
riage license for a white person to marry a negro, he shall 
be punished by imprisonment not exceeding two years, or 
by fine not exceeding one thousand dollars.

741.15 Marriage' between white and negro persons 
not to be performed.—Any of the persons described in 
§741.07, who shall knowingly perform the ceremony of 
marriage between any persons who by the provisions of 
§741.11 are prohibited to intermarry shall in like manner 
forfeit and pay the penal sum of one thousand dollars, to 
be recovered in like manner as in §741.13 for the use of 
the school fund.

741.16 Penalty for marrying white and negro per­
sons.—-If any judge, justice of the peace, notary public or 
minister of the Gospel, clergyman, priest or any person 
authorized to solemnize the rites of matrimony, shall will­
fully and knowingly perform the ceremony of marriage 
for any white person with a negro, he shall be punished 
by imprisonment not exceeding one year, or by fine not 
exceeding one thousand dollars.

798.04 White persons and negroes living in adultery.



App. 28

—If any white person and negro, or mulatto, shall live in 
adultery or fornication with each other, each shall be 
punished by imprisonment not exceeding twelve months, 
or by fine not exceeding one thousand dollars.

798.05 Negro man and white woman or white man 
and negro woman occupying same room.—Any negro man 
and white woman, or any white man and negro woman, 
who are not married to each other, who shall habitually 
live in and occupy in the nighttime the same room shall 
each be punished by imprisonment not exceeding twelve 
months, or by fine not exceeding five hundred dollars.

948.01 When courts may place defendant on pro­
bation.—

(1) Any court of the state having original jurisdic­
tion of criminal actions, where the defendant in a crimi­
nal case has been found guilty by the verdict of a jury or 
has entered a plea of guilty or a plea of nolo contendere 
or has been found guilty by the court trying the case 
without a jury, except for an offense punishable by death, 
may at a time to be determined by the court, either with 
or without an adjudication of the guilt of the defendant, 
hear and determine the question of the probation of such 
defendant.

(2) Prior to such hearing the court may refer the 
case to the parole commission for investigation and 
recommendation. The court, upon such reference, shall 
direct the commission and it shall be the duty of the com­
mission to make an investigation and report in writing 
at a specified time to the court upon the circumstances of 
the offense, the criminal record, the social history, and



App. 29

the present condition of defendant together with its 
recommendation.

(3) If it appears to the court upon a hearing of the 
matter that the defendant is not likely again to engage in 
a criminal course of conduct and that the ends of justice 
and the welfare of society do not require that the defen­
dant shall presently suffer the penalty imposed by law, 
the court, in its discretion, may either adjudge the defen­
dant to be guilty or stay and withhold the adjudication of 
guilt and in either case stay and withhold the imposition 
of sentence upon such defendant, and shall place him. upon 
probation under the supervision and control of the parole 
commission for the duration of such probation. And the 
said commission shall thereupon and thereafter, during 
the continuance of such probation, have the supervision 
and control of the defendant.

(4) In no case shall the imposition of sentence be 
suspended and the defendant thereupon placed on proba­
tion unless such defendant be placed under the custody 
of said parole commission except as provided in §949.03.

948.03 Terms and conditions of probation.—

(1) The court shall determine the terms and condi­
tions of probation and may include among them the fol­
lowing: That the probationer shall (a) avoid injurious or 
vicious habits; (b) avoid persons or places of disreputable 
or harmful character; (c) report to the parole and proba­
tion supervisors as directed; (d) permit such supervisors 
to visit him at his home, or elsewhere; (e) work faithfully 
at suitable employment insofar as may be possible; (f) re­
main within a specified place; (g) make reparation or



App. 30

restitution to the aggrieved party for the damage or loss 
caused by his offense in an amount to be determined by 
the court; (h) support his legal dependents to the best of 
his ability.

(2) The enumeration of specific kinds of terms and 
conditions shall not prevent the court from adding there­
to such other or others as it considers proper. The court 
may rescind or modify at any time of the terms and con­
ditions theretofore imposed by the court upon the pro­
bationer.

950.05 Jails to be constructed so white and colored 
male and female prisoners may be separated.-—The county 
commissioners of the respective counties of this state shall 
so arrange the jails of their respective counties that it 
shall be unnecessary to confine in said jails in the same 
room, cell or apartment white and negro prisoners, or 
male and female prisoners.

950.06 Unlawful for white and colored prisoners, 
male and female prisoners, to be confined together.—-It 
is unlawful for white and negro prisoners to be confined 
in the county jails of this state in the same cell, room or 
apartment, or be so confined as to be permitted to com­
mingle.

It is unlawful for male and female prisoners in said 
jails to be confined in the same cell, room or apartment, 
or be so confined as to be permitted to commingle, and the 
sheriffs of this state shall confine and separate all prison­
ers in their custody or charge in accordance with this 
chapter.



App. 31

950.07 Appropriation authorized to remodel jail so
classes of prisoners may be separated. — The county com­
missioners of the several counties of this state are author­
ized to appropriate from the general revenue fund of the 
said counties such moneys as are necessary to carry into
effect the provisions of §§950.05-950.06.

950.08 Officers refusing to comply with law subject 
to removal.—Any board of county commissioners and any 
sheriff willfully refusing to carry out and comply with 
the provisions of § §950.05 and 950.06 in their respective 
spheres of duty shall be removed from office by the 
governor.



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