Robinson v FL Response Supplemental Brief

    tl, A

IN THE

S U P R E ME  COURT OF THE  
U N I T E D  S T A T E S

October Term, 1963

No. 6 0

JAMES RUSSELL ROBINSON, JOSEPH PRICE PER­
KINS, MARVIN EDISON ROBINSON, THOMAS VAWN 
ROLAND, JAMES H. LANE, THOMAS WALTER GAI­
THER, BARRY M. COHEN, ANGELINE E. BUTLER, 
HENRY PRINGLE, BERNARD LAFAYETTE, OLIVER 
WILLIAM ST. PEE, LEON EVERETTE BAILEY, DOR­
OTHY R. MILLER, PATRICIA STEPHENS, PRICILLA 
STEPHENS, ALICE M. PARHAM, ROBERT PAUL 

YOUNG, and DR. CARL ELLIOTT YAEGER, JR.,
Appellants,

THE STATE OF FLORIDA,

t
Appellee.

On Appeal from the Supreme Court of the 
State of Florida’ v . \, \  , ■ < -• ' V . •; /' . v .' ' N '• " ■ .V,. '

;V  ) ' . , "  ---------1--------  ,
APPELLANTS’ RESPONSE TO SUPPLEMENTAL 

BRIEF OF THE UNITED STATES

X  -

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

V  i '  1 V ' V ’ :V' v X



IN THE

S U P R E M E  C O U R T  OF THE 
U N I T E D  S T A T E S

October Term, 1963

No. 6 0

JAMES RUSSELL ROBINSON, JOSEPH PRICE PER­
KINS, MARVIN EDISON ROBINSON, THOMAS VAWN 
ROLAND, JAMES H. LANE, THOMAS WALTER GAI­
THER, BARRY M. COHEN, ANGELINE E. BUTLER, 
HENRY PRINGLE, BERNARD LAFAYETTE, OLIVER 
WILLIAM ST. PEE, LEON EVERETTE BAILEY, DOR­
OTHY 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

APPELLANTS’ RESPONSE TO SUPPLEMENTAL 
BRIEF OF THE UNITED STATES



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Appellants respond to the Government’s amicus curiae 
brief in the following respects:

I.

In its brief the Government states:

“ We do not argue that Negroes would have a 
direct action against such an establishment to se­
cure the services of food or admission to enter­
tainment.

“ Neither petitioners nor the United States is ar­
guing that the Court should undertake to hold 
that places of public accommodation must serve 
all members of the public alike without regard 
to race or color.”

These Appellants, however, have argued both in their 
brief on the merits and during oral argument that Shell’s 
City had an affirmative obligation to serve Appellants and 
that its refusal to serve constituted a denial of the equal 
protection of the laws. Part II of Appellants’ main brief 
is devoted to that proposition, and in the introduction 
thereto Appellants submitted that:

“ Apart from the participation of the police and 
the state courts herein, the discriminatory 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 thereunder, the 
State has, within the meaning of the BURTON



3

v. WILMINGTON PARKING AUTHORITY, ‘so 
far insinuated itself into a position of interde­
pendence’ with restaurants ‘that it must be rec­
ognized as a joint participant in the challenged 
activity.’ ”  ( P. 19)

In Burton the very relief sought by the Negro plain­
tiff was an injunction against the lessee, Eagle Coffee 
Shoppe, Inc., to prohibit it from refusing to serve him on 
the ground of race alone. See the Chancellor’s opinion in 
150 A. 2d 197. Accordingly, and to the extent that Appel­
lants’ case is bottomed upon the holding and rationale of 
Bur-ton, and because of the extensive involvement of the 
State of Florida herein through its supervision over res­
taurants by way of its licensing laws and regulations, Ap­
pellants submit that complete constitutional adjudication 
of this cause requires a holding that Shell’s City, like Eagle, 
had a positive and affirmative constitutional obligation 
to serve the Appellants.

II.

The Government adverts, as did Appellants, to the 
concurring opinion in Burton, where Mr. Justice Stewart 
said that:

“ The highest court of Delaware has thus con­
strued the legislative enactment as authorizing 
discriminatory classification based solely on 
color.”

Not only is the position of the Florida Supreme Court no 
different here than was that of the Delaware Supreme 
Court in Burton, but the Attorney General of Florida has 
himself just publicly proclaimed the racially discriminatory 
effect of the Florida Statute in question. In response to



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an inquiry from the County Attorney of Dade County, the 
Attorney General issued an opinion dated February 3, 
1964 wherein he stated that:

“ This is in response to your letter of January 
17, 1964, requesting the opinion of this office as 
to whether the Board of County Commissioners 
of Dade County have the power to prohibit dis­
crimination upon the basis of race or creed by 
the owners and operators of public lodgings and 
public food service establishments and to prescribe 
penalty for the violation of such prohibition.

I concur with your conclusion that such legisla­
tion would conflict with Section 509.092, Florida 
Statutes, and would therefore be prohibited by 
Article IX, Section 11, Florida Constitution, as 
being in conflict with a general state statute, 
Dade County v. Mercury Radio Service, Inc., 134 
So. 2d 791. The constitutionality of Chapter 509, 
Florida Statutes, has been challenged in the case 
of Robinson et al v. State. This case was argued 
before the United States Supreme Court in Oc­
tober of last year and a final decision is expected 
before the end of the present term of that court, 
which is June 1, 1964.

In view of the fact that the United States Su­
preme Court will answer the question within the 
very near future finally deciding the issues be­
fore it, I will adhere to the established policy of 
my predecessors in office, of which you are fa­
miliar, and not render an opinion on the constitu­
tionality of the statute when the matter is pres-



5

ently before the courts for final determination.”
(Emphasis supplied)

In view of this pronouncement, the State clearly can­
not argue that the statute and the public authority are 
simply “ neutral” in this contest. The statute, as thus 
construed by the Attorney General himself, clearly author­
izes racial discrimination and as effectively as did the 
Delaware statute in Burton. Since the statute as thus con­
strued prohibits the county from enacting a public accom­
modations law, and since it is the only provision of State 
law cited as inhibiting this exercise of municipal authority, 
it thus aligns the State on the side of racial discrimination 
and blocks any effort at remedial racial legislation by the 
local authorities. In District of Columbia v. John R. 
Thompson Company, Inc., 846 U.S. 100, this Court upheld 
the constitutional authority of municipalities to enact anti­
segregation ordinances as applied to places of public accom­
modation. The Florida statute, as construed by the Attor­
ney General, expressly prohibits the exercise of such au­
thority and, therefore, in all practical respects makes the 
State a partner to every act of racial discrimination in 
Florida restaurants.

Respectfully submitted,

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

B ALFRED I. HOPKINS
Alfred I. Hopkins



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CERTIFICATE OF MAILING

I, ALFRED I. HOPKINS, counsel for Appellants and 
a member of the Bar o f the Supreme Court o f the United 
States, hereby certify that on February — 1964, I 
served copies of the foregoing Appellants’ Response to 
Supplemental Brief o f the United States, by mailing a 
copy thereof in a duly addressed envelope with postage 
prepaid to HON. RICHARD E. GERSTEIN, State Attor­
ney, Dade County Courthouse, Miami, Florida; to HON. 
JAMES W. KYNES, Attorney General o f the State of 
Florida, Capitol Building, Tallahassee, Florida; and to 
HON. ARCHIBALD COX, Solicitor General o f the United 
States, Department o f Justice, Washington, D. C.

ALFRED f. HOPKINS
Alfred I. Hopkins