Daniel v. Paul Petition for Rehearing En Banc
Public Court Documents
May 31, 1968

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Brief Collection, LDF Court Filings. Daniel v. Paul Petition for Rehearing En Banc, 1968. 35c1f8f1-ae9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6d3ebd7d-ec59-43c8-b1f5-10a3b666d63c/daniel-v-paul-petition-for-rehearing-en-banc. Accessed July 12, 2025.
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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 ME1LEN PRESS INC. — N. Y. C.«^H&*>219