Daniel v. Paul Petition for Rehearing En Banc

    Hntteii BXhU b (Eourt nt Appeals
F ob the E ighth Circuit

No. 18,824

In the

Mbs. Doris Daniel and Mbs. Rosalyn K yles,

Appellants,
v.

E uell Paul, Jb., Individually and as Owner, 
Operator or Manager of Lake Nixon Club,

Appellee.

A P PE A L  FBOM  DECISION OF T H E  U N IT E D  STATES DISTRICT COURT 

FOR T H E  EA STE R N  DISTRICT OF AR K A N SAS 

W ESTE R N  DIVISION

PETITION FOR REHEARING EN BANC

Norman C. A m  a k e r.

Jack Greenberg 
M ichael Meltsner

10 Columbus Circle 
New York, New York 10019

John W . W alker 
Norman J. Chaciikin

13Q4-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Appellants



In the

B u Ub CExmrt nf Kppmlz
F ob the E ighth Circuit

No. 18,824

Mbs. Dobis Daniel and Mbs. Rosalyn K yles,

v.
Appellants,

E uell Paul, Jb., Individually and as Owner, 
Operator or Manager of Lake Nixon Club,

Appellee.

A PPE A L EBOM DECISION OF T H E  U N IT E D  STATES D ISTRICT COURT 

FOB T H E  EASTERN  D ISTRICT OF AR K A N SAS 

W E STE R N  DIVISION

PETITION FOR REHEARING EIS BANC

Appellants respectfully urge that this appeal, decided 
adversely to them on May 3, 1968, by a 2-1 decision of a 
panel of this court (Judges Mehaffy, Van Oosterhout, 
Judge Heaney dissenting), be set down for rehearing 
en banc because of (1) the importance of the issues in­
volved herein and their crucial relationship to effective 
enforcement of Title II of the Civil Rights Act of 1964: 
(2) the conflict between the majority opinion and the 
Fifth Circuit’s en banc decision in Miller v. Amusement 
Enterprises, Inc. interpreting Sections 201(b)(3) and 
(c)(3 ) of the Act; (3) the conflict between the majority 
opinion here and the Fifth Circuit’s opinion in Fazzio 
Real Estate Co., Inc. v. Adams interpreting Section 201



2

(b )(4 ) of the Act; (4) the disagreement within the panel 
itself on these important issues. The panel’s majority 
interpretation of these sections of the Act, if permitted 
to stand, will so seriously interfere with enforcement of 
Title II of the Civil Rights Act of 1964 that it should be 
reexamined by the entire membership of this court en banc.

I

There can be little doubt concerning the importance of 
the case. It is this court’s first major interpretation of 
Title II of the 1964 Civil Rights Act, probably the most 
important legislation passed by the Congress in a quarter 
of a century or more and the most sweeping and far- 
reaching piece of civil rights legislation enacted since the 
Reconstruction Era. The policy expressed in Title II of 
the Act is one “ that Congress considered of the highest 
priority.”  Newman v. Piggie Park Enterprises, 390 U.S. 
400, 402, 19 L.ed. 2d 1263, 1265 (1968).

The majority’s interpretation of the sections of the 
Act here involved differs so markedly from that expres­
sion of Congressional policy as to require a thoroughgoing 
reexamination by the full court. An additional highly 
important reason necessitating en banc consideration by 
this court is because the decision of the majority is now 
in conflict with the full Fifth Circuit Court as to the 
interpretation of §§ 201(b) (3) and (c)(3 ) of the Act and 
with a panel of that court as to § 201(b) (4). Obviously, 
the full bench of this court should consider whether these 
conflicts shall be permitted to stand.

II

A. Appellants have consistently maintained throughout 
this litigation that Lake Nixon is subject to the prohibition 
against racial discrimination contained in the Civil Rights



3

Act of 1964 because it is a “ place of entertainment” as 
that term is used in § 201(b) (3) of Title II (42 U.S.C. 
§ 2000a(b) (3 )). The district judge rejected this conten­
tion based upon a distinction between “ entertainment” 
(spectator) and “ recreation” (participant) which he felt 
was written into the Act. Kyles v. Paul, 263 F. Supp. 412, 
419-20 (E.D. Ark. 1967). The same issue was involved 
in the recent decision in Miller v. Amusement Enterprises,
------  F.2d ------  (5th Cir. No. 24259, April 8, 1968) (en
banc). The Fifth Circuit rejected the distinction:

We are unable to agree with those concepts which 
would prefer, or those which would demand, that the 
Civil Rights Act be narrowly construed, i.e., the es­
tablishments referred to in § 201(b) (3) must be places 
of entertainment which present exhibitions for spec­
tators and that such exhibitions must move in inter­
state commerce. However, while not necessary to our 
decision, as will be seen by a further reading of this 
opinion, we find that Fun Fair is covered by the lit­
eral terms of the Act. Although it may be that the 
types of exhibition establishments listed in § 201(b) (3) 
are those which most commonly come to mind, no 
one would dispute the proposition that such list is 
not complete or exhaustive. Therefore, any establish­
ment which presents a performance for the amuse­
ment or interest of a viewing public would be included. 
In our view Fun Fair is such an establishment. The 
amusement park presents a performance of small chil­
dren riding on various mechanical “kiddie” rides plus 
a performance of ice skating. It is obvious to us that 
many of the people who assemble at the park come 
there to be entertained by watching others, particu­
larly their own children, participate in the activities 
available. In fact Mrs. Miller’s presence at the park



4

was to see her children perform on ice.9 While the 
record does not explicitly and clearly show this to 
he a fact, aside from Mrs. Miller’s statement, we as 
Judges may take judicial knowledge of the common 
ordinary fact that human beings are “people watchers” 
and derive much enjoyment from this pastime.10

9 In Mrs. Miller’s deposition she stated:
“Yes, my little boy particularly was interested in show­

ing off—showing me how well he could skate, too.”
10 The following is from the record:

“ How many people would you say were present?
“ Well, I can’t say exactly. There were people skating; 

there were people sitting in the seats; there were people 
standing waiting to be served.”

(Slip opinion pp. 10-11) (Footnotes in court’s opinion)

Thus, the Fifth Circuit has held that the participative- 
exhibitive dichotomy adopted by the district court below 
and accepted by the panel is not a viable distinction in 
light of the Act’s purpose. Surely the swimming, boating, 
picnicking, sun-bathing and dancing activities occurring at 
Lake Nixon are as much, if not more, spectator activities 
as those which occur at Fun Fair Park. In any event, the 
Fifth Circuit’s conclusion was reached after extensive 
examination by the full court. This court should do no 
less.

B. The panel’s majority sustained the district court’s 
interpretation of the “ entertainment” provisions of Title II 
on another ground—that no effect upon interstate com­
merce had been shown.

Appellants are unable to accept the statement of the 
majority that there was a “ total lack of any evidence that 
the operations of Lake Nixon in any fashion affect com­
merce” (Slip opinion, p. 17). We particularly call to the 
attention of the court the fact that Lake Nixon placed



5

an advertisement in the magazine, “Little Rock Today.” 
This magazine was described by the district court as “a 
monthly magazine indicating available attractions in the 
Little Rock area,” Kyles v. Paul, 263 F.Supp. 412, 418 
(E. D. Ark. 1967). This magazine fulfills the same func­
tion in Little Rock that the “ Key” magazine fulfills in 
St. Louis, and we note the following statement from the 
masthead of the May, 1968 edition:

Published monthly and distributed free of charge by 
Metropolitan Little Rock’s leading hotels, chambers 
of commerce, motels and restaurants to their guests, 
new comers and tourists, and to reception rooms.

It should be obvious that any facility which places an 
advertisement in a magazine summarizing available at­
tractions including entertainment opportunities and which 
magazine is distributed in hotels, willingly accepts, and 
indeed expects, the patronage of interstate travelers.1 
Certainly this Court may take judicial notice of the char­
acter of this magazine if it may take judicial notice of 
the “common knowledge” that a type of boat is manu­
factured in Arkansas (Slip opinion, p. 14), leading to an 
inference in the court’s opinion that Lake Nixon’s boat­
ing equipment was entirely intrastate, an inference clearly 
contradicted by the record (R. 14).2 * * Furthermore, the 
Fifth Circuit concluded that the operations of the Fun 
Fair Amusement Park did affect commerce even though 
there was no proof whatsoever that the food sold at the

1 The Club also advertised in Little Bock Air Force Base pub­
lished at an Air Force base near Little Rock and over an area 
radio station (R. 11). Clearly, the facilities of Lake Nixon—in­
cluding the concession stand—were “ offered” to interstate travelers.

2 Whether or not some boats of this type are manufactured in
Arkansas, the boats involved in this ease were imported from
Oklahoma (Slip opinion, p. 25).



6

concession stand originated outside Louisiana. In this 
case, the district court specifically found that ingredients 
of the hamburger buns and soft drinks originated outside 
Arkansas (263 F. Supp. at 418). The district court also 
discounted the influence of juke box records shipped in 
from outside the state,8 but this reasoning was specifically 
condemned in the Miller case (see slip opinion at p. 17), 
and see Twitty v. Vogue Theatre Cory., 242 F.Supp. 281 
(M.D. Fla. 1965). Again, the rationale of the Miller case, 
if accepted by this Court, is clearly controlling and de­
mands a reversal. (See especially, slip opinion, pp. 17-21.) 
That rationale should either be accepted or rejected by 
the entire Eighth Circuit where matters so important are 
concerned.

Ill

A. The consequences for the Civil Rights Act of 1964 
will be equally grave if the concept of a “unitized opera­
tion,” a locution which permits public accommodations to 
circumvent section 201(b)(4) of Title II is permitted to 
stand. This theory was first proposed by the district 
judge, without any authority therefor, and was approved 
in the majority opinion of the panel. Judge Heaney’s 
dissenting opinion exposes the irrational logic of the con­
cept more clearly and eloquently than we are able, but we 
should like to emphasize the practical consequences of 
permitting this erroneous interpretation of the law to bear 
the stamp of this circuit. Thousands upon thousands of 
individual and corporate proprietors throughout the coun­
try who wish to discriminate against Negroes, or any

8 “ There is no dispute that the juke boxes were manufactured 
outside of Arkansas, and the same thing may be said about at 
least many of the records played on the machines” 263 F. Supp. at 
417.



7

other racial or religious group, and whom Congress wished 
to prohibit from engaging in such discrimination, will now 
be free to segregate their establishments by applying the 
circular reasoning of this ease. First, it is said that Lake 
Nison is not within section 201(b) (2) because it is not prin­
cipally engaged in selling food. This statement is true 
enough—the major purpose of Lake Nixon’s existence is 
not to sell food. However, the proprietor then argues 
that there is no coverage under section 201(b)(4) because 
the food stand cannot be considered by itself to determine 
whether its principal intent is selling food (and thus 
whether it is a covered establishment within the prem­
ises of Lake Nixon and therefore whether Lake Nixon it­
self is covered). All this because the food stand is said 
to be merely an “adjunct” to the principal business of 
Lake Nixon. In effect, the food stand disappears from 
the view of the district court and the panel’s majority 
in attempting to determine whether Lake Nixon is within 
the purview of the Civil Eights Act. And this despite 
the fact, which can hardly be contested, that the princi­
pal business of the food stand is selling food.

There was no basis for the district court’s belief that 
Section 201(b)(4) contemplated an establishment under 
different ownership within the parent establishment. Even 
if that were so, the record here shows that while Lake 
Nixon was owned by Mr. and Mrs. Paul, the snack bar 
was jointly owned by them and Mrs. Paul’s sister (R.32). 
Thus, Lake Nixon meets even the judges’ erroneous 
standard for coverage under Section 201(b)(4).

B. Beyond this, as a consequence of the Fifth Circuit’s 
recent decision in Fassio Real Estate Co., Inc. v. Adams 
(No. 24825, May 24, 1968) affirming Adams v. Fassio Real 
Estate Co., 268 F. Supp. 630 (E.D. La. 1967), there now 
exists a clear-cut conflict between the decision of this



8

panel and that of the unanimous panel in Fazzio Real 
Estate [Judges Coleman and Clayton (who dissented from 
the en banc decision of the court in Miller) ;  district judge 
Johnson], The Fifth Circuit has affirmed a district court 
decision which rejected the “ unitized operation” (263 F. 
Supp. 419) with sales “purely incidental to the recrea­
tional facilities” (263 F. Supp. 417) approach of the dis­
trict court below and endorsed by the panel’s majority 
here. As the court said:

“ . . . [I ] f  it he found—as it was in this case— 
that a covered establishment exists within the struc­
ture of a unified business operation, then under the 
provisions of Section 201(b)(4) of the Act the entire 
business operation located at those premises becomes 
a ‘covered establishment.’ The Act draws no distinc­
tion with regard to the principal purposes for which 
a business enterprise is carried on. Had a substan­
tial business purpose test been intended, as urged by 
Fazzio, it would have been a very simple matter to 
include it in the Act. No such test was included with 
respect to the question of when the presence of one 
covered ‘establishment’ in a business enterprise will 
result in the entire operation’s being treated as one 
establishment for the purpose of coverage under Sec­
tion 201(b) (4). In fact, the face of the Act specifically 
rebuts the existence of any substantial business pur­
pose or ‘functional unity’ limitation on the meaning 
of the term ‘establishment’ as used throughout Sec­
tion 201. Under Section 201(b)(4)(a) coverage may 
extend to both establishments within covered estab­
lishments and to an establishment ‘within the prem­
ises of which is physically located any such covered 
establishment.’ ” (Slip opinion pp. 6-7)

# * # # #



9

“ Fazzio’s Bridge Bowl as an entity is not covered be­
cause it is principally engaged in selling food for 
consumption on the premises under Section 201(b) (2). 
Rather, Fazzio’s is covered (1) because the refresh­
ment counter is a covered establishment principally 
engaged in selling food for consumption on the prem­
ises within the meaning of Section 201(b)(2), and (2) 
because the covered refreshment counter is physically 
located within the premises of Fazzio’s bowling oper­
ation [Section 201(b) (4) (a) ( ii) ] and the two stand 
ready to and do serve each others patrons. [Section 
201 (b )(4 )(b )].” (Slip opinion pp. 7-8)

Obviously, the conflict of interpretation on this point 
should also be reviewed by the full court.

CONCLUSION

For the foregoing reasons, appellants urge that this 
petition for rehearing en banc be granted.

Respectfully submitted,

Norman C. A makeb 
Jack Greenberg 
Michael Meltsneb

10 Columbus Circle 
New York, New York 10019

John W . W alker 
Norman J. Chachkin

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Appellants



10

Certificate

I hereby certify that the above petition is submitted in 
good faith and is not filed for delay. It is believed to he 
meritorious.

Norman C. A maker

Certificate of Service

This is to certify that on this 31st day of May, 1968, 
I served a copy of Appellants’ Petition for Rehearing 
En Banc upon Sam Robinson, Esq., Adkins Building, 115 
East Capitol Street, Little Rock, Arkansas, by mailing a 
copy thereof to him at the above address via United States 
airmail, postage prepaid.

Norman C. A maker 
Attorney for Appellants



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