Newman v. Piggie Park Enterprises Brief Amicus Curiae

    BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 10,860

ANNE P. NEWMAN, SHARON W. NEAL, 
AND JOHN MUNGIN, APPELLANTS,

v .

PIGGIE PARK ENTERPRISES, INC., A CORPORATION, 
AND L. MAURICE BESSINGER, APPELLEES.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA

JOHN DOAR,
Assistant Attorney General,

DAVID L. NORMAN,
ALAN G. MARER,
MICHAEL FLICKER,
ALVIN HIRSHEN,

Attorneys,
Department of Justice, 
Washington, D.C. 20530



Interest of the United States --------------------  1
Statement ----------------------------------------  2
Specification of Error -----------------------  7
Argument:

I. Introduction and Summary -------------------  8
II. The phrase "other facility principally

enSage(i in selling food for consumption 
on the premises" was intended to extend 
coverage to all establishments like those 
enumerated, i.e., to other eating places --  10

III. The term "principally" excludes only 
those establishments engaged in sell­
ing food merely as an incident to some other business -- such as,bars and
"Mrs. Murphy" boarding houses -------------  14

Conclusion---------------------------------------- 27

INDEX
Page



CITATIONS

Cases: page

Atlanta Motel v. United States, 379 U.S. 241(1964) ----------------------------------------- 25
City of Greenwood v. Peacock, 384 U.S. 804(1966) ----------------------------------------  27
Cuevas v. Sdrales, 344 F. 2d 1019 (C.A. 10,1965) -----------------------------------------  12,16
Dilworth v. Riner, 343 F. 2d 226 (C.A. 5, 1965) -- 27
Drucker v. Frisina, 219 N.Y.S. 2d 680 (Sup. Ct.1961) -----------------------------------------  8
Evans v. Fong Poy, 42 Cal. App. 2d 320, 180 P.2d 942 ----------------------------------------  Id
Food Corp. v. Zoning Board of Adjustment, 384Pa. 288, 121 A. 2d 94 ( 1965) --------------  8
Fraser v. Robin Dee Day Camp, 44 N.J. 480, 210A. 2d 208 -------------------------------------  26
Hamm v. City of Rock Hill, 379 U.S. 306 (1964) -- 26,27
Lambert v. Mandel's of California, 319 P. 2d469 (Sup. Ct. App. 1957) ------------------------  25
Katzenbach v. McClung, 379 U.S. 294 -------------  5
Newman v. Piggie Park Enterprises, 256 F. Supp. 94l (D.S.C. 1966) ---------------------------------  2
Rachel v. Georgia, 384 U.S. 780 (1966) ----------  26
Robertson v. Johnson, 249 F. Supp.618 (E.D. La.1966) -----------------------------------------  12,16
Rogers v. Katros, 11 R.R.L.Rep. 1503 (N.D. Ala.1966) -----------------------------------------  24
Tyson v. Cazes, 238 F. Supp. 937 (E.D. La. 1965),

vacated as moot, 363 F. 2d 742 (C.A. 5, 1966) -- 16
United States v. Alabama, 304 F. 2d 583 (C.A. 51962) , affirmed, 371 U.S. 3 7 -------------------  26

ii



Page
Gases Cont.:
United States v. Chitwood, et al., No. 2385-N(M.D. Ala. 1966) -------------------------------  25
United States v. Clark, 249 F. Supp. 720(S.D. Ala. 1965) -------------------------------  25
United States v. Northwest Louisiana Restaurant 

Club, 11 R.R.L.Rep. 1505, 256 F. Supp. 151 (W.D. La. 1966) --------------------------    24
United States v. Original Knights of the Ku
Klux Klan, 250 F. Supp. 330 (E.D. La. 1965) __ 27

United States v. The Warren Co., et al.,
No. 3437-64 (S.D. Ala. 1965) -----------------  25

STATUTES
Civil Rights Act of 1964:
Title II

Section 201(b) -------------------------------  10
Section 201(b)(2) ----------------------------- 1 2 11Section 201(c)(2) ----------------------------- 5 *
Section 206 ----------------------------------- 2
Section 207(b) -------------------------------- 25

Title VII
42 U.S.C. 1983 ---------------------------------  2
42 U.S.C. 2000a(b)(2) ----------------------------  2,5,6
42 U.S.C. 2000a(c)(2) --------------------------  5
42 U.S.C. 2000a-5 ------------------------------  2
78 Stat. 243 -----------------------------------  2

MISCELLANEOUS
82 ALR 2d 986 -----------------------------  9
110 Cong. Rec. 6533 ----------------------------
110 Cong. Rec. 7384 ----------------------------  12

iii



Miscellaneous Cont.:

110 Gong. Rec. 7404 ------------------------------  12
110 Gong. Rec. 7405 ------------------------------  21
110 Cong. Rec. 7406 ------------------------------  17,21
110 Cong. Rec. 7407 ------------------------------  17

Hearings before the Senate Committee on Commerce,
88th Cong., 1st Sess., on S. 1732, Part I -----  22,23

Hearings before the House subcommittee on the 
Judiciary, 88th Cong., 1st Sess; on H.R. 7152:

Part I, p. 652 ------------------------------  14
Part IV, p. 2655 ----------------------------  21

Report of the House Judiciary Committee, 88th Cong., 1st Sess., No. 914, on H.R. 7152:
Part 1 (November 20, 1963) ------------------  12
Part 2 (December 2, 1963) -------------------  12

Report of the Senate Committee on Commerce, 88th
Cong., 2d Sess., No. 872, on S. 1732, Part I -- 22

Md. Annot. Code, Art. 49B, §11 (1966 Supp.) -----  18

Page

iv



IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10,860

ANNE P. NEWMAN, SHARON W. NEAL, 
AND JOHN MUNGIN, APPELLANTS,

v .

PIGGIE PARK ENTERPRISES, INC., A CORPORATION, 
AND L. MAURICE BESSINGER, APPELLEES.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES 
This appeal presents a question of first 

impression concerning the proper interpretation of an 
important provision of federal law, section 201(b)(2)



of Title II of the Civil Rights Act of 1964, 78 Stat.
243, 42 U.S.C. 2000a(b)(2). The Attorney General has 
independent responsibilities for enforcement of 
section 201 and other provisions of Title II of the 
Act. See section 206, 42 U.S.C. 2000a-5• For this 
reason the United States has a direct and immediate 
interest in the proper interpretation of Title II.

Accordingly, we believe that it is incumbent 
upon the United States to express its views on the 
important question presented here.

STATEMENT
On July 28, 1966, the District Court for the 

District of South Carolina (Columbia Division) denied 
plaintiffs' request for an injunction against racial 
discrimination in defendants' five drive-in establishments, 
and granted an injunction with respect to "Little Joe's 
Sandwich Shop," also owned by defendants. 256 F. Supp.
941. This is an appeal by plaintiffs from the court's 
ruling on the five drive-in establishments.

On December 18, 1964, plaintiffs, who are Negro 
citizens, filed a complaint, on their own behalf and as a 
class action on behalf of others similarly situated, 
alleging violations of the Civil Rights Act of 1964, Title 
II, section 201(b)(2) and of 42 U.S.C. 19 8 3. The complaint

2



alleged that defendants engaged in racial discrimination 
by denying service to Negroes at its six eating places 
and that each of them was covered by Title II. A 
temporary and permanent injunction was sought against 
any future acts of discrimination in any of the establish­
ments owned and operated by defendants.

Judge Simons made the following findings of
fact:

Defendants conceded that they cater to white 
patrons only and refuse to serve Negroes at their 
restaurants for on-the-premises consumption. Two of 
the Negro plaintiffs were refused service at one drive-in 
without an explanation. Negro customers are served 
if they place and pick up their orders at the kitchen 
windows provided they do not consume their purchases on 
the premises.

All five drive-ins are located at strategic 
positions on main and interstate highways. Although 
defendants expended some effort in an attempt to avoid 
serving interstate travelers, such travelers were served. 
Defendants admitted that 18-25$ of the food that it 
sold moved in interstate commerce. That estimate 
did not include meat purchased from local suppliers who 
procured their livestock from out of state.

3



The defendants' drive-ins were operated in 
the following manner. Customers drive onto the premises 
and into a parking space. Adjacent to and to the left 
of each parking space is a "teletray" with an intercom. 
Orders are placed by speaking into the intercom. An 
employee inside the building, usually out of sight of 
the customer, takes the order. A curb girl delivers 
the prepared order to the customer, and payment is made 
to her. Foods and beverages are served in disposable 
paper plates and cups and may be consumed on the 
premises in the customer's automobile or may be carried 
off the premises and eaten elsewhere. There are minimal 
accommodations for sit-down or counter service at 
two drive-ins -- two or three small tables with a 
couple of chairs at each.

The defendants offered uncontradicted 
testimony that off-the-premises consumption averages 
50$ during the year. The amount carried out varies during 
the year depending on the season and the weather.

The one restaurant against which the injunction 
was granted is not a drive-in but a cafeteria-type 
sandwich shop known as "Little Joe's Sandwich Shop."

- 4 -



The district court held that defendants’ 
operation affected commerce within the meaning of 
section 201(c)(2) of the Act, 42 U.S.C. §2000a(c)(2), 
because it satisfied both of the alternative require­
ments of that subsection, that is, a substantial 
portion of the food served had moved in interstate 
commerce (18-25$ by defendants' admission and about 40^, 
or $90,000 a year by the court's calculations, which 
properly included meat purchased from local suppliers, 
see Katzenbach v. McClung, 379 U.S. at 296) and the 
defendants both served and offered to serve interstate 
travelers.

The issue upon which the case turned was whether 
or not defendants' establishments were within Title II, 
§201(b)(2) which covers "any restaurant, cafeteria, 
lunchroom, lunch counter, soda fountain, or other facility 
principally engaged in selling food for consumption on 
the premises...." The court found that "Little Joe's 
Sandwich Shop" was covered because it provided facilities 
whereby customers could sit down and eat within the 
building and food is primarily consumed on the premises. 
With respect to the five drive-ins, however, the court 
reached a contrary conclusion.

The court first considered whether or not the 
drive-ins were "restaurants." It came to no conclusion

5



except to cite a number of sources to the effect that 
to be a restaurant a place must serve food to be con­
sumed on thepremises. 256 F. Supp. at 952-953. The 
court found it unnecessary to decide this issue because 
it held that to be covered an establishment must in any 
event be "principally engaged in selling food for 
consumption on the premises."

The court interpreted the phrase "or other
facility principally engaged in selling food for consumption
on the premises" as requiring that the food be in fact
chiefly consumed on the premises. The court seems to have
looked at two factors in deciding this issue: (1 ) the
percentage of food which actually was consumed on the
premises, and (2) the number and type of facilities which
would encourage customers to eat on the premises. Using
this approach^ it concluded that the drive-ins were not
covered by §201(b)(2) because on the average 50$ of
the food served during the year was not consumed on the

1_/premises^ and there were no facilities for sit-down

1 / Under the plain meaning of the phrase one
who served 50$ or less (sic) of its food 
which is taken away and eaten off the 
premises cannot be held to be principally 
engaged in selling food for consumption

(continued on following page)

-  6 -



dining "sufficient to accommodate any appreciable 
number of patrons."

SPECIFICATION OF ERROR 
The court erroneously held that a drive-in 

eating establishment where on a yearly average 50$ 
of the food sold is consumed off the premises is not 
subject to the non-discrimination requirements of 
Title II of the Civil Rights Act of 1964.

_ 2 _ /

1 / (continued from preceding page)
on the premises. The uncontradicted evi­
dence before the court is that only (sic)
50$ of the food serve at defendant's 
drive-ins is consumed off the premises and 
all of its patrons are encouraged to take 
their orders elsewhere for consumption.
256 F. Supp. at 953-

In this quote the court used "50$ or less"; this appears 
to be a misprint. The court probably meant 50$ or more.
2/ The court noted as being significant that there 
were no accommodations "for diners to walk into build­
ings to be served and to eat inside. They [the drive- 
ins] cater entirely to motorized customers who do not 
alight from their automobiles to order or eat, whose 
orders are served in disposable containers, and 50$ 
of all foods served to them is consumed off the premises." 
256 F. Supp. at 952.

- 7 -



ARGUMENT
I . Introduction and Summary

In our view all of the drive-in restaurants 
involved in this case are subject to the federal public 
accommodations law. To sustain this position we need 
not urge that the phrase "principally engaged in serving 
food for consumption on the premises" does not modify 
"restaurant/' although that is certainly a plausible reading 
of the Act. Instead^, we put that question to one side be­
cause we think that, in any event, a drive-in restaurant 
is an "other facility principally engaged in serving food 
for consumption on the premises."

Preliminarily, we observe that a drive-in 
restaurant has "premises," i .e . , the parking area where 
people are served and may and do conveniently eat in their 
cars. Compare Drucker v. Frisina, 219 N.Y.S. 2d 680 
(Sup. Ct. 19 6 1); Food Corp. v. Zoning Board of Adjustment, 
384 Pa. 288, 121 A. 2d 9^j 95 (1965)- The Food Corporation 
case held in a matter involving a zoning law that 
a drive-in is to be treated like any other restaurant

- 8 -



"since the food will be consumed there even though it 
be in automobiles stationed thereon." (emphasis in the 
original). And in Drucker, another zoning case, it was 
held that "customers served by carhops or by outside counter 
service will nonetheless be on the premises, not on the
public thoroughfare, when the food is served and consumed."

3 /219 N.Y.S. 2d at 682.
We understand the district judge to share the 

view that the parking area is a drive-in's premises within 
the meaning of title II, for the necessary implication 
of his holding that 50$ of the food is consumed off the 
premises is that the other 50$ is consumed thereon -- 
which could only mean the parking area. So, too, the brief 
for appellees states that "... as a matter of fact, at 
least 50$ of the food sold is consumed away from the 
premises ...," and again, in phrasing the question presented, 
appellees maintain that "at least fifty per cent of the 
food sold is carried away from the premises for consumption

3/ See also Annot., 82 ALR 2d 989, note 2, p. 990;
■^he terms 'restaurant,' 'diner,' and ’drive-in' have 
been used [in the annotation] to connote any business 
establishment serving edibles for consumption on the 
premises at a profit, since this seems to have been the 
meaning attributed to those terms in most of the case."

- 9 -



. (Brief for Appellees at 5>6). This must mean that 
the other half was eaten on the premises.

So much being conceded,, it seems to us that the 
drive-ins here involved are covered. Our position is that 
"for consumption on the premises" means suitable for 
consumption thereon, or which may conveniently be eaten 
thereon, so long as some customers do in fact eat there.
The term "principally", in this view, serves only the 
function of eliminating from coverage places whose 
main business is not serving food -- typically bars, 
cocktail lounges, and taverns -- but which do serve 
minimal amounts of food as an incident to some other 
activity. We submit that the statutory scheme, the 
legislative history, and the policies underlying the Act 
all support this interpretation.
II. The phrase "other facility principally engaged in 

selling food for consumption on the' premises" was 
intended to extend coverage to all establishment's 
like those enumerated, i.e., to other eating places

Section 201(b) of the Act makes the prohibition 
on discrimination applicable (assuming a "commerce" nexus, 
which is not in dispute here) to:

(1 ) any inn, hotel, motel, or other establishment
which provides lodging to transient guests....;

10



(2) any restaurant, cafeteria, lunchroom, lunch 
counter, soda fountain, or other facility princi­
pally engaged In selling food for consumption on 
the premises . . . .
(3) any motion picture house, theater, concert 
hall, sports arena, stadium or other place of 
exhibition or entertainment ....

The underscored phrases are obviously catchalls intended
to extend coverage to establishments similar to those
enumerated. There is no basis whatever for appellees'
suggestion that "the plain and simple language used in
the Act restricts coverage to those facilities
specifically enumerated" (Br. for Appellees at 8-9).
The very opposite is true, since otherwise there would
have been no point to including the general clauses at the
end of each category of listed establishments. As the
House Report said, Section 201(b)(2) covers "restaurants,
lunch counters, and similar establishments." (emphasis

37added). Similarly, Senator Magnuson said on the floor

4 / Senator Magnuson was the Chairman of the Senate 
Commerce Committee which reported out one version of a 
public accommodations bill, and the principal spokesman 
for the House version of Title II when it reached the 
Senate floor.

11



that it covered "restaurants, Lunch counters, and other 
food-service facilities," LLO Gong. Rec. at 7384, and 
again at another point he referred to coverage of 
"restaurants, Lunch counters, and similar establishments." 
Id. at 7404. Other similar descriptions are to be found
_  v.m  the reports.

Both the language and the legislative history, 
therefore, indicate that the catchalls are to be read in 
accordance with the usual doctrine of ejusdem generis 
to reach places like those mentioned but not places quite 
dissimilar. See Cuevas v. Sdrales, 344 F. 2d 1019, L020, 
(G.A. 10, 1965); Robertson v. Johnston, 249 F. Supp. 618,
622 (E.D. La. 1965) (both applying ejusdem generis to 
the catchall phrases following respectively, the restaurant 
and amusement clauses). As the Court of Appeals for the 
Tenth Circuit said, construing the "principally engaged 
etc." clause, "[ajll the places specifically designated 
are facilities where food is sold to be eaten," and 
went on to say that "[tjhe obvious purpose of Section 201(b) 
is to prevent discrimination in places where food is sold 
to be eaten." Cuevas v. Sdrales, supra at 1020, 1021. a 
drive-in restaurant is also such a place, and it should 
therefore be held within the law so long as

5 /  See "Additional Majority Views" of Congressman 
Kastenmeier (bill covers "eating places"), House Rpt. No. 
914, part 1 at 40; "Additional Views" of Congressmen 
McCulloch, Lindsay, et al. ("eating establishments"),
House Rpt. No. 914, part 2, at 12-13; "Separate Minority 
Views" of Congressmen Poff and Cramer ("eating establish­ments"), House Rpt. No. 914, part 1 at 98, 99.

12



it sells prepared food and any of that food is consumed on the
premises. Of course any of the enumerated places may
be expected to have a carry-out business, so that is no 
ground for excluding drive-ins.

In fact, an examination of the bill as introduced 
reveals that the phrase "for consumption on the premises" 
was probably included only to distinguish the catchall 
"engaged in selling food" from other catchall phrases, 
later deleted, appearing in the same subsection of the 
bill as introduced and which also covered places selling

J j
unprepared food, notably "markets." It was, then,
a matter of symmetry of draftmanship, rather than any 
concern about carry-out service, which explains the 
initial inclusion of the "premises" phrase.

Since drive-in restaurants are similar to the 
enumerated establishments, they must be held to come within

6 / Of course, a place like a market which is engaged 
exclusively in selling unprepared food to be taken home 
for preparation is not covered. Compare n. 7 and text 
p. 19 and n. 10, infra.
7/ As introduced this section read:

Any retail shop, department store, market, 
drug store, gasoline station, or other place 
which keeps goods for sale, any restaurant, 
lunchroom, lunch counter, soda fountain, or 
other public place engaged in selling food for 
consumption on the premises, and any other 
establishment where goods, services, facilities, 
privileges, advantages, or accommodations are 
held out to the public for sale, use, rent, or 
hire .

(continued on following page)

13



the catchall unless the term "principally" somehow 
compels a different result. We show, next, that its 
insertion in the bill oy the House Committee was 
not intended to deal at all with the relative percentages 
of on-and-off premises consumption, but with an entirely 
different problem.
Ill. The term "principally" excludes only those

establishments engaged in selling food merely 
as an incident to some other Business __
"such as,bars and hMrs. Murphy" boarding houses

In our view the emphasis in the phrase 
"principally engaged in selling food for consumption 
on the premises" is properly on the word "food." The 
term "principally" did not appear in the bill as intro­
duced. It was added by the House Judiciary Committee 
and retained in the same form when the House version of 
the coverage provisions was ultimately adopted in the 
Senate. Its inclusion was not intended to have any

7 / (continued from preceding page)
See Hearings before the House Subcommittee on the 
Judiciary, 88th Cong., 1st Sess., p. 652 (part I).

Unless "for consumption on the premises" had 
been added to "engaged in selling food" the latter would 
overlap "market ... or other place which keeps goods for 
sale," as well as the last catchall.

- 14



bearing upon the percentage of food consumed on 
the premises, out was intended only to exclude from 
coverage places where food service was incidental to. 
some other business. One such category of businesses 
was bars. Another was small motels and tourist homes 
wherein the owner resides which were exempted by the 
"Mrs. Murphy" clause from the lodging provisions of 
the Act. Congress did not want "Mrs. Murphy" to be 
inadvertently covered by the food service provision 
in the event she served a minimal amount of food to 
her lodgers.

To be sure, there is no explanation in the 
House Report as to why "principally" was inserted.
But as introduced the oill would have covered bars, as the 
Attorney General testified. See Senate Hearings at 62. Obviously,

- 15 -



if a bar sold peanuts, popcorn or even sandwiches to
its patrons it would have been "engaged in selling food 
for consumption on the premises" if the catchall were 
read literally. Cf. Evans v. Fong Poy, 42 Cal. App. 2d 
320, 321, 180 P. 2d 942, 943 (holding bars included in 
a general catchall clause of a state public accommodations 
law.) After the bill was passed, however, the legislative 
history showed -- and the courts have held -- that bars 
were excluded. E.g., statement of Senator Magnuson, 
Chairman of the Senate Commerce Committee and principal 
floor spokesman in the Senate for Title II, that "[a] 
bar, in the strict sense of that word, would not be 
covered by title II, since it is not 'principally 
engaged in selling food for consumption on the premises.'" 
(110 Cong. Rec. 7406); Cuevas v. Sdrales, 344 F. 2d 1019 
(C.A. 10, 1965); Tyson v. Cazes, 238F. Supp. 937(E.D. La. 
1965), vacated as moot, 363 F. 2d 742 (C.A. 5); Robertson 
v. Johnson, 249 F. Supp. 618 (E.D. La. 1966).

Given the intention of congress to eliminate 
bars, the meaning of "principally” comes into clear focus, 
for nothing else in the law or in any revisions between 
introduction and enactment would have eliminated bars 
(and other places) serving food as an incident to other 
business -- except the term "principally."

- 16



The legislative history makes clear that 
elimination of bars and other places selling food only 
incidentally was the object Congress had in mind in 
inserting the term. Thus, in discussing "Mrs. Murphy" 
establishments Senator Magnuson said (110 Cong. Rec. 
at 7406):

Nor would an individual operating an 
exempted tourist home or motel lose the 
exemption if he served breakfast as an 
accommodation to guests. Title II would 
cover only those eating places which 
served the public and which were facili­
ties 'principally engaged in selling food 
for consumption on the premises.' The 
food-service facility there would not fall 
within that coverage, and would have no 
effect on the exemption of the lodging facility.

The situation described by Senator Magnuson was one where 
food was being sold "for consumption on the premises."
His explanation, therefore, was not that "principally" 
had any thing to do with the "on-off-premises" problem, 
but that it related to whether a place was "principally"
engaged in something other than selling food -- i.e., in

8 /
furnishing lodging. Indeed, we know of no legislative

8/ See also Senator Magnuson ’ s statement (llo Cons. Rec. at 7407):
A few weeks ago the Senator from Louisiana 
stated that he was not clear as to when bars 
or nightclubs would be subject to the provi­
sions of title II. As a general rule, estab­
lishments of this kind will not come within 
the scope of the title. But a bar or night­
club physically located in a covered hotel

(Gont. on next page)
17



history even suggesting that "principally" was inserted 
to eliminate eating places doing a predominant carry-out 
service. The total absence of any legislative history 
to support such an exemption speaks loudly against it.

The Cuevas decision of the Tenth Circuit also 
shows the function "principally" was intended to perform. 
The Court of Appeals said that "the section covered eating 
establishments and not those principally engaged in selling 
drinks," and that the law did not cover "bars and taverns 
where the sale of drinks is the principal business."

3 J(emphasis added.) 344 F. 2d at 1022,1023.

8/ (Cont. from preceding page)
will be ocvered, if it is open to patrons of 
the hotel. A nightclub might also be covered 
under section 201(b)(3), if it customarily 
offers entertainment which moves in interstate 
commerce. A business which describes itself 
as a bar or nightclub would also be covered 
if it is "principally engaged in selling food for consumption on the premises." ****(emphasis added).

9/ The court also said that "it was shown that the tav­
ern was primarily engaged in selling beer for consumption on the premises.

Compare the Maryland public accommodations law 
enacted just the year before Congress passed title II:

For the purpose of this subtitle, a place of 
public accommodations means any hotel, res­
taurant, inn, motel or an establishment 
commonly known or recognized as regularly 
engaged in the business of providing sleep­
ing accommodations, or serving food ... and

(Cont. on next page)
18



Bars and other places where food service was 
merely incidental, and retail stores, including food 
markest selling unprepared food, seem to be the only 
categories covered by section 202(a)(3) of the bill as

1 0/introduced that the House Committee decided to exclude. 
They were excluded for policy reasons not at all appli­
cable to drive-in restaurants -- retail stores, food 
markets, and the like because discrimination in them 
(except in lunch counters) was not a problem (llo Cong. 
Rec. 6533, Senator Humphrey); bars for the obvious reason, 
we suppose, that the customers of a place mainly devoted 
to drinking might be in a frame of mind uniquely 
unreceptive to radical

9/ (Cont. from preceding page)
which is open to the general public; except 
that premises or portions of premises pri­marily devoted to the sale of alcoholic 
beverages and generally described as bars, 
taverns, or cocktail lounges are not places 
of public accommodation for the purposes of 
this subtitle, (emphasis added) Md. Ann. Code,Art. 49B, §11 (19b6 Supp.).

_10/ Retail markets and other retail stores were eliminated 
by striking the clause expressly covering them and the gen­
eral catchall at the end of Section 202(a)(3). It is hardly 
possible that ''principally'* was also inserted to exclude 
food stores, since "engaged in serving food for consumption 
on the premises" was alone sufficient to do that and, of course, striking the language expressly covering such 
places made what was already clear doubly so. Thus 
insertion of "principally" can only be explained as we suggest above. See supra n. J.

-  19 -



revision of long-standing customs; and "Mrs. Murphy" 
places because of the countervailing privacy interests 
involved. None of these reasons could have motivated 
Congress to exclude drive-in restaurants.

Aside from the fact that the legislative history 
fails to suggest a reason to exclude places where 50^ 
of prepared food is carried out, that reading would 
exclude other places (apart from drive-ins) which Congress 
plainly wanted to cover. If the percentage of carry-out 
business is the measure of coverage, then a typical 
sit-down restaurant serving large numbers of persons at 
tables on the premises would be exempted if it could 
show that even more customers carried the food home.
Yet, nothing could be plainer than that Congress intended 
to cover all such places, the constitution permitting. 
Tested by its application to these other places it must 
necessarily extend to, therefore, the district court’s 
reading of the Act cannot stand.

20



Furthermore, the legislative history indicates
that a proprietor of a restaurant should be able to know
with substantial certainty if he is covered, and shows
that Congress thought he would need to determine only if
he met the "commerce" tests. There was no suggestion,
so far as we are aware, that a proprietor also would have
to calculate the relative percentages of on-and-off
premises consumption. Thus, Senator Magnuson said (110
Cong. Rec. at 7405, 7406):

The types of establishments covered are clearly 
and explicitly described in the four numbered 
subparagraphs of section 201(b). An establish­
ment should have little difficulty in determin­
ing whether it falls in one of these categories. 
.... Establishments which sell food on the 
premises, and gasoline stations, may be expected 
to know whether they serve or offer to serve 
interstate travelers, or whether a substantial 
portion of the products they sell have moved in 
commerce.

* * ■* * ■*
At any rate, it is clear that few, if any, pro­
prietors of restaurants and the like would have 
any doubt whether they must comply with the 
requirements of title II.

Since, as this record shows, the percentage of consumption 
on the premises is fluctuating figure depending on the sea­
son, weather, and other variables, and is hardly capable of 
exact calculation, to make coverage turn on that would be 
contrary to congress' intention to make coverage certain.

Nor was the proprietor's need to know if his 
establishment was covered the only consideration. As the 
Attorney General said (House Hearings, Part IV, at 2655),
"the areas of coverage should be clear to both the pro­
prietors and the public."

21



Under the district court's fifty percent test prospective
Negro customers would have no idea whether a drive-in was
covered or not -- thus leaving Negro travelers in much
the same uncertain position, at least with respect to
drive-ins, in which they found themselves prior to passage
of the act. See Senate Report, at 16.

The effort to achieve certainty of coverage was
also directly related to the Congressional desire to end
disputes about who must serve Negroes (compare Senate
Report at 11; Senate Hearings at 215) and, more
importantly, to eliminate the fear that if one proprietor
served Negroes he would lose white customers to like
places that continued to discriminate. Thus, Senator
Magnuson, shortly after noting that "few, if any
proprietors of restaurants and the like would have any
doubt whether they must comply with the requirements of
title II," said that (110 Cong. Rec. at 7406):

It is argued that a formerly segregated restaurant 
would lose all its white patrons as a result of 
complying with title II. As a practical matter, 
that would be a most unlikely occurrence, since 
the white customers of the restaurant minded to 
leave it would, no doubt, find that its com­
petitors were also required by title II to 
desegregate; and thus they would gain nothing 
by leaving.

But under the district court's construction many drive- 
ins would not be covered, yet they would be

22



to all outward appearances the same as those 
covered, thus putting the latter at the very 
competitive disadvantage Congress was anxious 

to avoid. This idea -- that all like places be treated 
alike because none could afford to desegregate unless 
all did at once -- was a recurrent theme in the course 
of the hearings and debates. See, e . g., testimony of 
Assistant Attorney General Burke Marshall, Senate 
Hearings, at 216:

MR. MARSHALL: Senator, it is our experience,
in discussing this with businessmen, over the 
past month and a half, in a large number of 
meetings, at the White House and with the Attorney 
General and businessmen, that in overwhelming numbers 
they want to get this problem behind them and that 
the reason they don't do it voluntarily is because 
they are all fearful that they will have to move 
themselves alone, that someone else will lag back 
and it will result in loss of business to them ... 
it is largely a question of everyone moving at 
once, more than any other single thing.

See also, id. at 206; 325-326.
In this connection it is interesting to note that 

-r since 1964 many drive-in restaurants have been ordered to
desegregate in compliance with the law, and evidently 
none thought to raise the defense sustained below although

23



some, at Least, must have had. a high percentage of
iycarry-out business. See, for example, United States 

v. Northwest Louisiana Restaurant Club, 11 R.R.L. Rep. 
1505, 256 F. Supp. 151 (W.D. La. 1966), where a decree 
was entered enjoining discrimination by the following 
listed places, among many others: the "Frosty Kream," 
"Danny’s Drive-In," the "Fairy Queen Super Drive-In," 
the "Frostop Drive-In," the "Ko Ko Mo Drive-In 
Restaurant," "Nick’s Linwood Drive-In,” the "Shamrock 
Drive-In," and the "Amber Inn Drive-In.” See also 
Rogers v. Katros, 11 R.R.L.Rep. 1503. (N.D. Ala. 1966), 
where an injunction under title II was entered against

IV We do not find persuasive the suggestion_in appellees 
brief that, because chinaware and silverware is not sup­
plied, "waitresses [do not return] to inquire whether the 
customer is getting along all right ....", and certain 
other amenities of service are ignored, these places are 
"unique among drive-in facilities" and should not be 
covered for that reason. (Brief for Appellees, at 8).
There is no proof that they are so unique; it is common 
knowledge that many other drive-ins use paper cups instead 
of chinaware, for example. And it would be absurd if 
coverage was to turn on such seemingly insignificant de­
tails in operation. So long as patrons eat on the premises 
(as half of appellees’ customers in fact do) and the pro­
prietor makes it possible for them to do so, we see no 
basis for distinguishing these places from any other drive- 
in. Of course, if such a distinction were to be drawn it 
would lead directly to the kind of uncertainty of coverage, consequent competitive disadvantage to substantially_iden­
tical places that do serve Negroes, and continuing disputes 
and demonstrations that Congress sought to avoid.

Nor do we think it relevant --as the district court evidently did -- that the proprietor's intention is to encourage his customers to carry the food home. Nothing 
in the statute makes coverage dependent on such an inten­
tion, especially when at the same time the proprietor makes 
available a convenient place for them to eat on the 
premises.

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the proprietors of the "Kanora Drive-In" and the "Dari 
King "; United States v. Chitwood, et al. , No. 2385-N 
(M.D. Ala. 1966), where an injunction under Title II was 
issued against the proprietors of the "Prattville Dairy 
Queen"; United States v. the Warren Co., et al.,
No. 3437-64 (S.D. Ala. 1965), issuing orders to 
desegregate against the "Thirsty Boy Drive-In Restaurant," 
the "Chick-N-Treat Drive-In", and the "Glass House Drive- 
In;" and United States v. Clark, 249 F. Supp. 720, 724,
727 (S.D. Ala. 19 6 5) where the court held that the 
"Thirsty Boy Drive-In" was covered by title II.

Title II is enforceable against proprietors solely 
by civil remedies; they cannot be criminally prosecuted for 
violating it. See section 207(b). There is thus no reason 
to construe it grudgingly and narrowly. As Justice Black, 
concurring, said in Atlanta Motel v. United States, 379 

U.S. 241, 273 (1964), "Congress exclud[ ed] some 
establishments from the Act either for reasons of policy 
or because it believed its powers to regulate and protect 
interstate commerce did not extend so far." There 
is no doubt about the constitutional power of Congress 
to reach these drive-ins; and neither appellees nor the district 
court have been able to point to any "reason of policy" 
to exclude them. Put another way, the law ought to be 
liberally construed. Cf. Lambert v. Mandel's of

25



California, 319 P. 2d 469 (Sup. Ct. App. 1957) (state
public accommodations law to be given "a liberal not

12/
a strict, construction"); Fraser v. Robin Dee Day 
Camp, 44 N.J. 480, 486, 210 A. 2d 208 (same). The 
Civil Rights Act of 1957 has seen given a liberal 
construction by the courts. E.g., United States v. 
Alabama, 304 F. 2d 583, 591 (C.A. 5, 1962), affirmed 
371 U.S. 3 7. And in the varied situations involving 
Title II which have come before the appellate courts 
it has been broadly applied, except where, as in 
Cuevas, the language and legislative history plainly 
required a contrary result. See Hamm v . City of Rock Hill, 
379 U.S. 306 (1964) (Title II applied retroactively to 
invalidate sit-in convictions obtained prior to its 
enactment); Rachel v. Georgia, 384 U.S. 780 (1966) (Title 
II read broadly to authorize removal of State "sit-in" 
prosecution to federal court although other types of

12/ Lambert gave a broad reading to the phrase "all 
other places of public accommodation" in the California 
law, holding a retail shoe store within the coverage 
because it was like enumerated places selling food since 
each "is open to the public generally for the purchase of goods."

- 26



prosecution are not removable; compare City of Greenwood 
v. Peacock, 384 U.S. 808); Dilworth v. Riner, 343 F. 2d 
226 (C.A. 5, 1965), (Title
II creates exception to anti-injunction statute to permit 
federal courts to enjoin pending State "sit-in" prosecution) 
United States v. Original Knights of the Klu Klux Klan,
250 F. Supp. 330, 335 (E.D. La. 1965) (three-judge court) 
(any douot about Attorney General's standing to enforce 
Titles II and VII to be resolved in favor of standing).
It is appropriate thus to read the statute liberally since 
its "great purpose" was "to obliterate the effect of a 
distressing chapter of our history." Hamm v. City of 
Rock Hill, supra at 315•

CONCLUSION
For the foregoing reasons it is respectfully 

submitted that the judgment of the district court should 
be reversed insofar as it failed to grant relief against 
appellees' five drive-in restaurants.

JOHN DOAR,
Assistant Attorney General.

DAVID L. NORMAN,
ALAN G. MARER,
MICHAEL FLICKER,
ALVIN HIRSHEN,
Attorneys,

Department of Justice,
Washington, D.C. 20530

JANUARY 1967.

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing 

Brief has been served this date by United States air 
mail, special delivery, in accordance with the rules 
of this Court, to each of the attorneys for the 
appellants and the appellees as follows:

Attorneys for Appellants:
Jack Greenberg, Esq.
Michael Meltsner, Esq.
10 Columbus Circle 
New York, New York
Matthew J. Perry, Esq.
Lincoln C. Jenkins, Jr., Esq. 
Hemphill P. Pride, II, Esq. 
1107 1/2 Washington Street 
Columbia, South Carolina
Attorney for Appellees:
Samuel B. Ray, Jr., Esq. 
Barnwell, South Carolina

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