Daniel v. Paul Petition for Writ of Certiorari to the US Court of Appeals for the Eigth Circuit

    In the

(Emtrt nf %  Iniftd
October Teem, 1968 

No..................

Mrs. D oris Daniel and Mrs. R osalyn K yles,
Petitioners,

--- y .----

E uell P aul, Jr., Individually and as Owner, Operator 
or Manager of Lake Nixon Club,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

Jack Greenberg 
James M. Nabrit, III 
Norman C. A maker 
Conrad K. H arper

10 Columbus Circle 
New York, N. Y. 10019

J ohn W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Petitioners

Norman J. Chachkin 
220 Locust Street 
Philadelphia, Pa. 19106

Of Counsel



I N D E X

PAGE

Opinions B elow ...................    1

Jurisdiction ..........................................................................  2

Questions Presented...........................    2

Constitutional and Statutory Provisions Involved.......  3

Statement ....................................................... ......................  5

Jurisdiction of the District Court ................................... 8

Reasons for Granting the Writ ....................................... 8

I. Certiorari Should Be Granted (a) to Resolve a 
Conflict Between the Courts of Appeals for the 
Eighth and Fifth Circuits as to Establishments 
Covered by §201(b)(4) and (c)(4 ) of the 1964 
Civil Rights Act, and (b) to Resolve a Conflict
Between These Same Courts as to the Meaning of 
“ Place of Entertainment” in §201(b) (3) and (c) (3) 
of the Same Act ..........................................................  8

A. Title II of the 1964 Civil Rights Act Applies
to the Whole of Lake Nixon Because of Its 
Lunch Counter’s Operations................................. 9

B. Lake Nixon Is Place of Entertainment as De­
find by Title II of the 1964 Civil Rights Act .... 13



11

II. Certiorari Should Be Granted to Determine 
Whether the Equal Right to Make and Enforce 
Contracts and to Have an Interest in Property, 
Guaranteed by 42 U. S. C. §§1981, 1982, Includes 
the Right of Negroes to Have Access to a Place 
of Public Amusement ..................................................  18

Conclusion ...........................   20

A ppendix :

Memorandum Opinion of the District Court............. la

Decree ............................................................................  15a

Opinion of the United States Court of Appeals .... 16a

Judgment ......................................................................  41a

Order Denying Rehearing........................................... 42a

A uthorities Cited

Cases:

Bolton v. State, 220 Ga. 632, 140 S. E. 2d 866 (1965) .... 10

Codogan v. Pox, 266 P. Supp. 866 (M. D. Fla. 1967) .... 11 
Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967) .... 19

Evans v. Laurel Links, Inc., 261 F. Supp. 474 (E. D.
Va. 1966) ................................   10,13

Fazzio Real Estate Co. v. Adams, 396 F. 2d 146 (5th 
Cir. 1968) ..........................................................................  12

Gregory v. Meyer, 376 F. 2d 509 (5th Cir. 1967) .........  11
Griffin v. Southland Racing Corp., 236 Ark. 872, 370 

S. W. 2d 429 (1963)

PAGE

19



H I

Hamm v. Rock Hill, 379 U. S. 306 (1964) .... ........... ...10,13

Jones v. Mayer, 36 U. S. L. W. 4661 (U. S. June 17, 
1968) .......  18,19,20

Miller v. Amusement Enterprises, Inc., 394 F. 2d 342 
(5th Cir. en banc 1968) ................................ 10,14,15,16,17

Newman v. Piggie Park Enterprise, Inc., 256 F. Supp.
941 (D. S. C. 1966), rev’cl on oth. gds., 377 F. 2d 433 
(4th Cir. 1967), mod. and aff’d on oth. gds., 19 L. Ed.
1263 (1968) ......................................................  11

Scott v. Young, 12 Race Rel. L. Rep. 428 (E. D. Va.
1966) ..................................................................................  13

Sullivan v. Little Hunting Park, 36 U. S. L. W. 3481 
(U. S. June 17, 1968) ........................................................  19

Vallee v. Stengel, 176 F. 2d 697 (3rd Cir. 1949) .......  19

Constitutional Provisions:

United States Constitution 
Thirteenth Amendment ..
Fourteenth Amendment

PAGE

2, 3,18 
.... 3, 5

Statutes :

28 U. S. C. §1254(1) 
28 U. S. C. §1343(3) 
28 U. S. C. §1343(4)
42 IT. S. C. §1981.......
42 U. S. C. §1982 .... .
42 U. S. C. §2000a.....
42 U. S. C. §2000a(b) 
42 U. S. C. §2000a(c)

2
8

............. 2, 3, 5,18,19
........ ........ 2, 3,18,19
.2, 5,10,13,14,15,16
........ ...... 3,4, 8, 9,12
.........4, 5, 8, 9,16,17



Commerce Clause
Art, 1, §8, cl. 3 ................................................................  3

Miscellaneous:

Hearings on Miscellaneous Proposals Regarding Civil 
Rights Before Subcommittee No. 5 of the House 
Committee on the Judiciary, 88th Cong., 1st Sess.
ser. 4, pt. 2 (1963) .......... ........ ............ ..........................  15

Hearings on H. R. 7152 Before the House Committee 
on the Judiciary, 88th Cong., 1st Sess. ser. 4, pt. 4
(1963) .........................    15

Hearings on S. 1732 Before the Senate Committee on
Commerce, 88th Cong., 1st Sess. ser. 26 (1963) ...........  11

H. R. Rep. No. 914, 88th Cong., 1st Sess. (1963) ...........  13

S. Rep. No. 872 on S. 1732, 88th Cong., 2nd Sess. 3
(1964) ......   17

109 Cong. Rec. 12276 (1963) ................ .......................... 15,16
110 Cong. Rec. 6557 (1964)   ........................................ 17
110 Cong. Rec. 7383 (1964) ........ ......................................  15
110 Cong. Rec. 7402 (1964) ...............................................  16
110 Cong. Rec. 13915 (1964) .............................................  17
110 Cong. Rec. 13921 (1964) ...............................................  17
110 Cong. Rec. 13924 (1964) ..............................................  17

iv

PAGE



1st th e

l&uprm? (tart of tijr luit^ States
October Term, 1968 

No......... ........

Mrs. D oris Daniel and Mrs. R osalyn K yles,

— v.—
Petitioners,

E uell P aul, Jr., Individually and as Owner, Operator 
or Manager of Lake Nixon Club,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Eighth Circuit entered in the above-entitled action on 
May 3, 1968, rehearing denied June 10, 1968.

Opinions Below

The opinion of the United States Court of Appeals for 
the Eighth Circuit and the dissenting opinion of Judge 
Heaney are reported at 395 P. 2d 118, 127. They are set 
forth in the appendix, pp. 16a-40a. The opinion of the 
LTnited States District Court for the Eastern District of 
Arkansas is reported at 263 F. Supp. 412 and is set forth 
in the appendix, pp. la-14a.



2

Jurisdiction

The judgment of the United States Court of Appeals 
for the Eighth Circuit was rendered May 3, 1968. A  peti­
tion for a rehearing en banc was denied on June 10, 1968. 
The jurisdiction of this Court is invoked pursuant to 28 
U. S. C. §1254(1).

Questions Presented

1. Lake Nixon Club is a privately owned and operated 
recreational area open to the white public in general. Lake 
Nixon has facilities for swimming, boating, picnicking, 
sunbathing, and miniature golf. On the premises is a snack 
bar principally engaged in selling food for consumption on 
the premises which offers to serve interstate travelers 
and which serves food a substantial portion of which has 
moved in commerce.

a) Is the snack bar a covered establishment within the 
contemplation of Title II of the Civil Rights Act of 1964, 
and if so, does this bring the entire recreational area within 
the coverage of Title II?

b) Is the Lake Nixon Club a place of entertainment 
within the scope of Title II?

2. Petitioners are denied admission to Lake Nixon Club 
solely because they are Negroes. Have petitioners been 
denied the same right to make and enforce contracts and 
have an interest in property, as is enjoyed by white citi­
zens, in violation of the Thirteenth Amendment and an 
Act of Congress, 42 U. S. C. §§1981, 1982?



3

Constitutional and Statutory Provisions Involved

This ease involves the Commerce Clause, Art. 1, §8, cl. 3, 
and the Thirteenth and Fourteenth Amendments of the 
Constitution of the United States.

This case also involves the following United States 
statutes:

42 U. S. C. §1981:

All persons within the jurisdiction of the United States 
shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give evi­
dence, and to the full and equal benefit of all laws and 
proceedings for the security of piersons and property as 
is enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exactions 
of every kind, and to no other.

42 U. S. C. §1982:

All citizens of the United States shall have the same 
right, in every State and Territory, as is enjoyed by white 
citizens thereof to inherit, purchase, lease, sell, hold, and 
convey real and personal property.

42 U. S. C. §2000a(b) :

Each of the following establishments which serves the 
public is a place of public accommodation within the mean­
ing of this subchapter if its operations affect commerce, 
or if discrimination or segregation by it is supported by 
State action:



4

(2) any restaurant, cafeteria, lunchroom, lunch counter, 
soda fountain, or other facility principally engaged in sell­
ing food for consumption on the premises, including, but 
not limited to, any such facility located on the premises 
of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports 
arena, stadium or other place of exhibition or entertain­
ment; and

(4) any establishment (A) (i) which is physically located 
within the premises of any establishment otherwise covered 
by this subsection, or (ii) within the premises of which is 
physically located any such covered establishment, and 
(B) which holds itself out as serving patrons of such 
covered establishment.

42 U. S. C. §2000a(c) :

The operations of an establishment affect commerce 
within the meaning of this subchapter if . . .  (2) in the 
case of an establishment described in paragraph (2) of 
subsection (b) of this section, it serves or offers to serve 
interstate travelers or a substantial portion of the food 
which it serves, or gasoline or other products which it 
sells, has moved in commerce; (3) in the case of an estab­
lishment described in paragraph (3) of subsection (b) of 
this section, it customarily presents, films, performances, 
athletic teams, exhibitions, or other sources of entertain­
ment which move in commerce; and (4) in the case of an 
establishment described in paragraph (4) of subsection (b) 
of this section, it is physically located within the premises 
of, or there is physically located within its premises, an



5

establishment the operations of which affect commerce 
within the meaning of this subsection. For purposes of 
this section, “ commerce” means travel, trade, traffic, com­
merce, transportation, or communication among the sev­
eral States, or between the District of Columbia and any 
State, or between any foreign country or any territory or 
possession and any State or the District of Columbia, or 
between points in the same State but through any other 
State or the District of Columbia or a foreign country.

Statement

On July 18, 1966, petitioners, Mrs. Doris Daniel and Mrs. 
Rosalyn Kyles, Negro citizens of the City of Little Rock, 
Pulaski County, Arkansas, instituted a class action in the 
United States District Court for the Eastern District of 
Arkansas against Euell Paul, Jr., individually and as owner 
of Lake Nixon Club, Pulaski County, Arkansas (R. 1, 3, 4).1 
The petitioners claimed that the Lake Nixon Club was 
depriving them, and Negro citizens similarly situated, of 
rights, privileges and immunities secured by (a) the Four­
teenth Amendment to the Constitution of the United States; 
(b) the Commerce Clause of the Constitution; (c) Title II 
of the Civil Rights Act of 1964 (42 U. S. C. §2000a), pro­
viding for injunctive relief against discrimination in places 
of public accommodation; and (d) 42 U. S. C. §1981, pro­
viding for the equal rights of citizens and all persons 
within the jurisdiction of the United States (R. 3). The 
complaint alleged that the Lake Nixon Club pursues a

1 The certified record consists of one volume with district court 
proceedings independently paginated from the Eighth Circuit pro­
ceedings. All citations in the text are to the district court pro­
ceedings.



6

policy of racial discrimination in the operation of its facili­
ties, services and accommodations; petitioners prayed for 
injunctive relief (R. 3).

On August 3, 1966, Mr. Euell Paul, Jr., answered the 
complaint (R. 1). At the trial, Mrs. Paul was made a party 
defendant without objection (R. 42; 263 F. Supp. at 414). 
After a trial without a jury, the District Court, on Feb­
ruary 1, 1967, held that the Lake Nixon Club is not a place 
of public accommodation within the contemplation of the 
Civil Rights Act and that its operations do not affect com­
merce, and dismissed the complaint with prejudice (R. 61, 
63; 263 F. Supp. at 420). The petitioners filed notice of 
appeal to the Court of Appeals for the Eighth Circuit on 
March 2, 1967 (R. 63).

The United States Court of Appeals for the Eighth 
affirmed the judgment of the District Court on May 3, 
1968, Judge Heaney dissenting, 395 F. 2d 118, 127. On 
June 10, 1968, petitioners’ petition for a rehearing was 
denied.

Lake Nixon Club is a recreational area comprising 232 
acres (R. 43) and located about 12 miles west of Little 
Rock, Arkansas (Appellee’s Brief in the Court of Appeals, 
1). There is a State highway located 5 miles north of Lake 
Nixon and a U. S. highway located 5 miles to the south 
(Appellee’s Brief in the Court of Appeals, 2).

During each season, approximately 100,000 people avail 
themselves of Lake Nixon’s swimming, picnicking, boating, 
sun-bathing, and miniature golf (R. 44, 54; 263 F. Supp. 
at 416). The exact number of members is unknown and 
the Pauls do not maintain a membership list (R. 56, 263 
F. Supp. at 417).



7

At Lake Nixon there is a snack bar which sells ham­
burgers, hot dogs, milk and sodas for consumption on the 
premises (R. 12, 30, 35; 263 F. Supp. at 416). The snack 
bar is operated by Mrs. Paul’s sister under an oral agree­
ment whereby the parties share the profits from the snack 
bar (R. 32). In 1966 the gross receipts from food sales ac­
counted for almost 23% of the total gross receipts ($10,- 
468.95 out of a total of $46,326.00) (R. 12, 63).

The equipment of Lake Nixon includes two juke boxes 
manufactured out of Arkansas (R. 55; 263 F. Supp. at 
417); 15 aluminum paddle boats leased from an Oklahoma 
company, and a surfboard or yak purchased from, the same 
company (R. 28, 29). The rental cost of the paddle boats 
is based on a percentage of the profits realized from their 
rental to patrons of Lake Nixon (R. 28).

Lake Nixon Club was advertised in the following media:
(a) once in 1966 in Little Bock Today, a monthly publica­
tion distributed free of charge by Little Rock’s leading 
hotels, chambers of commerce, motels and restaurants to 
their guests, newcomers and tourists; (b) once in 1966 in 
the Little Rock Air Force Base publication; (c) and three 
days each week from May through September, 1966, over 
radio station KALO (R. 11; Petition for Rehearing En 
Banc, 5; 263 F. Supp. at 417-418). A  typical radio an­
nouncement stated:

“Attention all members of Lake Nixon. In answer to 
your requests, Mr. Paul is happy to announce the Sat­
urday night dances will be continued . . . Lake Nixon 
continues their policy of offering you year-round en­
tertainment. The Villagers play for the big dance Sat­
urday night and, of course, there’s the jam session 
Sunday afternoon . . . also swimming, boating, and



8

miniature golf . . . ”  395 F. 2d at 130, n. 10 (dissenting 
opinion).

On July 10, 1966, the petitioners sought admission to Lake 
Nixon (R. 38, 39). The District Court found that they 
were refused admission because they are Negroes (R. 58; 
263 F. Supp. at 418). The District Court also found that 
Lake Nixon Club is not a private club within the contem­
plation of the 1964 Civil Rights Act, but is a facility open 
to the white public in general (R. 58; 263 F. Supp. at 418).

Jurisdiction of the District Court

Jurisdiction of the United States District Court for the 
Eastern District of Arkansas was based on 28 U. S. C. 
§§1343(3) and 1343(4).

Reasons for Granting the Writ

I.

Certiorari Should Be Granted (a) to Resolve a Con­
flict Between the Courts of Appeals for the Eighth and 
Fifth Circuits as to Establishments Covered by §201 (b) 
(4) and (c) (4 ) of the 1964 Civil Rights Act, and (b) 
to Resolve a Conflict Between These Same Courts as to 
the Meaning of “ Place of Entertainment”  in §201 (b) 
(3 )  and (c) (3 ) of the Same Act.

Lake Nixon Club is a public accommodation within the 
coverage of Title II of the Civil Rights Act of 1964 on both 
of the following grounds:

A) within the premises of Lake Nixon is physically lo­
cated a lunch counter jjrincipally engaged in selling food



9

for consumption on the premises which offers to serve in­
terstate travelers and which serves food a substantial por­
tion of which has moved in commerce, and this lunch counter 
serves all patrons of Lake Nixon. 42 U. S. C. §2000a(b)(4) 
and (c)(4 ).

B) Lake Nixon is a place of entertainment which custom­
arily presents sources of entertainment which move in 
commerce. 42 U. S. C. §2000a(b)(3) and (c)(3 ).

A. Title II of the 1964 Civil Rights Act Applies to the Whole 
of Lake Nixon Because of Its Lunch Counter’s Operations

It is not disputed that the lunch counter at Lake Nixon 
is principally engaged in selling food for consumption on 
the premises. Coverage of the snack bar under Title II 
thus depends on whether it offers to serve interstate trav­
elers or serves food or other products a substantial portion 
of which has moved in commerce.

The Court of Appeals found a total lack of proof of 
any offer to serve interstate travelers, 395 F. 2d at 127. 
The District Court did not specifically find whether the 
Pauls offered to serve interstate travelers. The District 
Court found no evidence that Lake Nixon “ ever tried to 
attract interstate travelers as such”  (R. 57; 263 F. Supp. 
at 418) (emphasis added).

Both Courts erred in failing to find that Lake Nixon 
offers to serve interstate travelers. The District Court 
specifically found that Lake Nixon is open to the white 
public in general (R. 58; 263 F. Supp. at 418) and con­
cluded that “ it is probably true that some out-of-state peo­
ple” have used the facilities of Lake Nixon (R. 57; 263 
F. Supp. at 418). An offer to serve the general public, 
under circumstances which make it reasonable to assume



10

that some interstate travelers will accept the offer, is an 
offer to serve interstate travelers, where there is no in­
quiry made as to the customers’ origin. Hamm v. Rock 
Hill, 379 U. S. 306 (1964); Miller v. Amusement Enter­
prises, Inc., 394 F. 2d 342 (5th Cir. en banc, 1968); Evans 
v. Laurel Links, Inc., 261 F. Supp. 474 (E. D. Va. 1966); 
Bolton v. State, 220 Ga. 632, 140 S. E. 2d 866 (1965).

Circumstances which make it reasonable to assume that 
some interstate travelers will accept the offer to serve the 
general public are present in this case. The Pauls placed 
advertisements in magazines distributed to tourists and 
servicemen. Although radio announcements were addressed 
to “members” of Lake Nixon, 100,000 “members” use Lake 
Nixon’s facilities each year and “ members” bring guests. 
A  reasonable conclusion is that a significant number of 
people know that Lake Nixon is in fact open to the white 
public in general and that a nominal membership fee of 
25  ̂ is charged simply to exclude undesirables including 
Negroes (see dissenting opinion of Judge Heaney, 395 
F. 2d at 130). The radio announcements suggest no geo­
graphical or other limitation on membership, 395 F. 2d at 
130, n. 10 (dissenting opinion). That advertising is not 
geographically restricted is an important factor in finding 
an offer to serve interstate travelers. Miller v. Amusement 
Enterprises, Inc., supra.

Lake Nixon is only 5 miles from a U. S. highway and 
5 miles from the nearest State highway. For the courts 
below this was too remote to affect commerce (395 F. 2d 
at 123,125; R. 57; 263 F. Supp. at 418). In Evans v. Laurel 
Links, Inc., supra, however, the location of a golf course 
4 blocks from a State highway and 5 miles from the nearest 
federal highway was deemed material to coverage under 
Title II of the 1964 Civil Rights Act.



11

There is no evidence that any inquiry is made as to the 
origin of “ members” or their guests. No address is re­
quired on the membership cards, 395 F. 2d at 130, n. 9 (dis­
senting opinion). There is no list of members (R. 56; 26o 
F, Supp. at 417). No signs are posted excluding interstate 
travelers, 395 F. 2d at 130, n. 9 (dissenting opinion).

Not only does Lake Nixon offer to serve interstate trav­
elers, but in addition a substantial portion of the food 
served and other products sold at the snack bar have moved 
in commerce, It is settled that substantial means “more 
than minimal” . Gregory v. Meyer, 376 F. 2d 509, 511 n. 1 
(5th Cir. 1967); Newman v. Piggie Park Enterprise, Inc., 
256 F. Supp. 941 (D. S. C. 1966), rev’d on other grounds, 
377 F. 2d 433 (4th Cir. 1967), modified and a fif'd on other 
grounds, 19 L. Ed. 1263 (1968) (18% is substantial); Codo- 
gan v. Fox, 266 F. Supp. 866 (M. D. Fla. 1967) (23-30% is 
substantial); Hearings on 8. 1732 Before the Senate Com­
mittee on Commerce, 88th Cong., 1st Sess., ser. 26 at 24 
(1963) (testimony of Attorney General Kennedy).

The only food served at the snack bar is hamburgers, hot 
dogs, sodas and milk (R. 12, 30, 35; 263 F. Supp. at 416); 
many soft drinks and hamburgers are sold (R. 32, 35). The 
District Court took judicial notice that the principal ingre­
dients of bread are produced in states other than Arkansas, 
and that some of the ingredients of the soft drinks prob­
ably originated outside Arkansas (R. 58; 263 F. Supp. at 
418). In addition, the snack bar contains a juke box manu­
factured outside of Arkansas; many of the records played 
on the juke box are also manufactured out of state (R. 55; 
263 F. Supp. at 417). Therefore, the District Court and the 
Court of Appeals erred in failing to find that more than a 
minimal amount of the food served and the music played in 
the snack bar have moved in interstate commerce.



12

Because the snack bar is physically located within the 
premises of Lake Nixon and holds itself out as serving 
patrons of Lake Nixon, all of the facilities and privileges 
of Lake Nixon comprise a place of public accommodation 
within the contemplation of Title II.

Both the District Court and the Court of Appeals held 
that, because the gross income from food sales constitutes 
a relatively small percentage of the total gross income 
(23%) and the sale of food is merely an adjunct to the 
Pauls’ principal purpose of providing recreational facili­
ties, Lake Nixon is a single unit operation and thus not cov­
ered by 42 U. S. C. §2000a(b) (4). For the Eighth Circuit, 
coverage under Title II requires at least two establishments 
under separate ownership. See 395 F. 2d at 123. This 
holding is in conflict with the decision of every other court 
which has considered this subsection.

In Fazsio Real Estate Co. v. Adams, 396 F. 2d 146 (5th 
Cir. 1968), the Court held that where the operators of a 
bowling alley also operated a snack bar for the patrons of 
the bowling alley, the entire establishment was covered by 
this subsection. In Fazsio, income from the sale of food 
and beer represented 23% of the total gross income; in­
come from the sale of food alone represented 8 to 11% of 
the total gross income. The Court held that even 8 to 11% 
could not be considered an insignificant adjunct and explic­
itly rejected the substantial business purpose test applied 
by the Eighth Circuit, compare 396 F. 2d at 150 with 395 
F. 2d at 123. The Fifth Circuit stated, 396 F. 2d at 149 :

The Act contemplates that the term “ establishment” 
refers to any separately identifiable business operation 
without regard to whether that operation is carried on 
in conjunction with other service or retail sales oper­



13

ations and without regard to questions concerning 
ownership, management or control of such operations.

In Evans v. Laurel Links, Inc., supra, the Court held an 
entire golf course within the coverage of Title II, because 
the operators of the golf course maintained a lunch counter 
for the patrons of the course. Income from food sales con­
stituted 15% of the total gross income of the golf course. 
See also Hamm v. Rock Hill, supra,- Scott v. Young, 12 
Bace Eel. L. Eep. 428 (E. D. Va. 1966) (recreational area 
with snack bar). The legislative history supports the ma­
jority rule. The Eeport of the House Judiciary Committee 
states that subsection (b) (4) “ would include, for example, 
retail stores which contain public lunch counters otherwise 
covered by Title II” . H. E, Eep. No. 914, 88th Cong., 1st 
Sess. 20 (1963).

Even under its own rule that Title II covers only sepa­
rately managed but physically connected establishments, 
the Eighth Circuit erred in failing to find the snack bar’s 
operations made Lake Nixon a public accommodation within 
the coverage of Title II. The evidence is that the snack 
bar is a separate enterprise managed by Mrs. Paul’s sister 
pursuant to an oral contract whereby the Pauls and Mrs. 
Paul’s sister share the profits from food sales (B. 32).

B. Lake Nixon Is Place of Entertainment as Defined by 
Title II of the 1964 Civil Rights Act

Even if Lake Nixon is found to be within the scope of 
subsection (b)(4) because of the presence of a snack bar 
within its premises, this Court should also determine 
whether Lake Nixon is a place of entertainment within 
the contemplation of the Civil Eights Act of 1964. The 
snack bar could be eliminated for the purpose of removing



.14

Lake Nixon from Title II coverage; further litigation 
would then be necessary to determine whether Lake Nixon 
is a place of entertainment. This possibility is not fanciful 
for in a companion case involving a similar recreational 
area, all sales of food were discontinued after the peti­
tioners instituted an action under Title II (R. 54; 263 F. 
Supp. at 417). In addition, the conflict between the Eighth 
Circuit’s construction of “ place of entertainment” and that 
of the Fifth Circuit in Miller v. Amusement Enterprises, 
Inc., supra, should be resolved.

The Eighth Circuit also held Lake Nixon was not a 
“ place of entertainment” , because the Court found a total 
lack of evidence that Lake Nixon’s activities or entertain­
ment moved in commerce, 395 F. 2d at 125. The District 
Court defined “ other place of entertainment” to mean an 
establishment where the patrons are spectators or listeners 
and their physical participation is non-existent or minimal, 
and held that Lake Nixon is not within this definition 
(R. 60; 263 F. Supp. at 419).

In Miller v. Amusement Enterprises, Inc., supra, the 
Court of Appeals for the Fifth Circuit, sitting en banc, 
reversed the prior decision of a three-judge panel (re­
ported at 391 F. 2d 86), and held that the Fun Fair amuse­
ment park is a place of entertainment within the coverage 
of Title II of the Civil Rights Act of 1964. Noting that 
it was not necessary to its decision, the Court held that 
even under a narrow construction of “ place of entertain­
ment” to include only places which present exhibitions for 
spectators, Fun Fair is a covered establishment, because 
“many of the people who assemble at the park come there 
to be entertained by watching others, particularly their 
own children, participate in the activities available” , 394 
F. 2d at 348. Swimming, boating, picnicking, sun-bathing



15

and dancing at Lake Nixon are certainly as much, if  not 
more, spectator activities as ice-skating and “ kiddie rides” , 
see 394 F. 2d at 348.

In Miller, the Fifth Circuit rejected a narrow construc­
tion of “place of entertainment” and held that, in view of 
the inconclusive nature of the relevant legislative history 
and of the overriding purpose of the Civil Eights Act, 
“place of entertainment” should be construed liberally to 
mean “ a place of enjoyment, fun and recreation” , 394 F. 2d 
at 349.

The overriding purpose of Title II of the Civil Eights 
Act was to eliminate discrimination in those facilities which 
were the focal point of civil rights demonstrations. Hear­
ings on H. R. 7152 Before the House Comm, on the Judi­
ciary, 88th Cong., 1st Sess., ser. 4, pt. 4, at 2655 (1963) 
(Testimony of Attorney Gen’l Kennedy). President Ken­
nedy clearly intended that recreational areas and other 
places of amusement be covered. Hearings on Miscellane­
ous Proposals Regarding Civil Rights Before Subcomm. 
No. 5 of the House Comm, on the Judiciary, 88th Cong., 
1st Sess., ser. 4, pt. 2, at 1448-1449 (1963). Facilities which 
were the focal point of demonstrations were consistently 
identified in both the Senate and House hearings as lodg­
ing houses, eating places, and places of amusement or rec­
reation. 110 Cong. Eec. 7383 (1964) (Eemarks of Sen. 
Young). While the Senate was debating the Act, there 
were demonstrations at the Gwynn Oak Amusement Park 
in Maryland; Senator Humphrey stated that this was proof 
of the need for this Act. 109 Cong. Eec. 12276 (1963).

Under either a narrow or a liberal construction of “ place 
of entertainment” , coverage depends on whether Lake 
Nixon customarily presents sources of entertainment which 
move in commerce. The Eighth Circuit could not discern



16

any evidence that any source of entertainment customarily 
presented by Lake Nison moved in interstate commerce, 
395 F. 2d at 125.

In fact, “ sources of entertainment” were intended to in­
clude equipment. In a discussion of subsection (c)(3 ), 
Senator Magnuson, floor manager of Title II, pointed out 
that if “ establishments which receive supplies, equipment 
or goods through the channels of interstate commerce . . . 
narrow their potential markets by artificially restricting 
their patrons to non-Negroes, the volume of sales and 
therefore, the volume of interstate purchases will be less,” 
110 Cong. Eec. 7402 (1964) (emphasis added). In the 
discussion of the demonstration at the Gwynn Oak Amuse­
ment Park, Senator Humphrey believed that the park 
would be covered by the Act in part because he was “ con­
fident that merchandise and facilities used in the park 
were transported across State lines,” 109 Cong. Rec. 12276 
(1963).

Lake Nixon purchases and leases its boats from an Okla­
homa company. The Pauls rent two juke boxes which 
were manufactured outside Arkansas and which play rec­
ords manufactured outside Arkansas. In view of these 
facts the Eighth Circuit is in direct conflict with Fifth 
Circuit’s decision in Miller. The Miller Court relied in part 
on the fact that 10 of the 11 “kiddie rides” at the park 
were purchased from out of state, 394 F. 2d at 351, to 
find an effect on commerce. But the Court also concluded 
that even under a narrow construction of the Act, since 
Fun Fair is located on a major highway and does not 
geographically restrict its advertising, the logical conclu­
sion is that a number of the patron-performers move in 
commerce, 394 F. 2d at 349. The same circumstances which 
make it reasonable to assume that some interstate travelers



17

will accept Lake Nixon’s offer to serve the general public 
make it reasonable to assume that some of Lake Nixon’s 
patron-performers move in commerce.

The Eighth and Fifth Circuits are also in conflict as to 
the meaning of “move in commerce” . The District Court 
found that Lake Nixon’s operations do not affect commerce 
on the ground that, although the boats, juke boxes and 
records have moved in commerce, they do not now move 
(R. 62; 263 F. Supp. at 420). The Court concluded that 
because the phrase, “has moved” , appears in the section 
concerning eating facilities, Congress must have intended 
to limit the section concerning places of entertainment to 
sources which “move” , and therefore sources of entertain­
ment which have, but no longer move, are not covered (R. 
61-62; 263 F. Supp. at 420). The Fifth Circuit, on the 
other hand, expressly concluded in Miller that Congres­
sional use of the present tense of “move” was not intended 
to exclude other tenses, 394 F. 2d at 351-52.

The legislative history supports the conclusion of the 
Fifth Circuit. The Report of the Senate Committee on 
Commerce refers within a single paragraph to “ sources 
of entertainment which move in interstate commerce” and 
“ entertainment that has moved in interstate commerce” , 
as within the contemplation of subsection (c)(3 ). S. Rep. 
No. 872 on S. 1732, 88th Cong., 2nd Sess. 3 (1964). See 
also 110 Cong. Rec. 6557 (1964) (remarks of Sen. Kuchel). 
In addition, a proposal to amend section 2000a(c) (3) to read 
“ sources of entertainment which move in commerce and 
have not come to rest within a state” was rejected. 110 
Cong. Rec. 13915, 13921 (1964). The subsequent debate 
indicates that Congress intended the bill to reach busi­
nesses which had a minimal or insignificant impact on 
interstate commerce. 110 Cong. Rec. 13924 (1964).



18

II.
Certiorari Should Be Granted to Determine Whether 

the Equal Right to Make and Enforce Contracts and to 
Have an Interest in Property, Guaranteed by 42 U. S. C. 
§§1981, 1982, Includes the Right of Negroes to Have 
Access to a Place of Public Amusement.

In the Civil Rights Act of 1866, enacted pursuant to 
the Thirteenth Amendment, Congress provided, inter alia, 
for citizens to have the same right to make and enforce 
contracts and have an interest in property as is enjoyed 
by white citizens. These provisions are now embodied in 
42 U. S. C. §§1981, 1982. Petitioners have been denied 
this right because the Pauls refused them the right to 
acquire for 25 ,̂ a so-called “membership” in Lake Nixon 
Club solely on racial grounds. The district court found 
that “white applicants for membership are admitted as a 
matter of routine” (R. 56; 263 F. Supp. at 417).

In Jones v. Mayer, 36 U. S. L. W. 4661 (U. S. June 17, 
1968), this Court held that §1982 forbade privately in­
flicted racial discrimination with respect to the acquisition 
and use of real property. This cause presents the impor­
tant question whether the Jones principle applies, either 
directly or by necessary implication, to a place of public 
amusement. Neither of the lower courts ruled on this 
issue since Jones was decided subsequent to the Eighth 
Circuit’s denial of rehearing.

In Jones this Court found §1982 justified as a legitimate 
exercise of Congressional power under the Thirteenth 
Amendment outlawing badges and incidents of slavery. 
This approval of the equal property rights guarantee of §1982



19

is directly applicable here because admission to Lake Nixon 
is in the nature of a right to use, for a time, the real and 
personal property of which the area consists. The fact that 
§19S2 was not pleaded below does not bar petitioners from 
relying on it here because this Court has made clear that 
the “ mere failure” to raise a constitutional question “ prior 
to the announcement of a decision which might support it 
cannot prevent a litigant from later invoking such a 
ground” Curtis Publishing Co. v. Butts, 388 U. S. 130, 142- 
143 (1967), and cases cited. Furthermore, this precise is­
sue was before this Court just last term in Sullivan v. 
Little Hunting Park, 36 U. S. L. W. 3481 (U. S. June 17, 
1968) where this Court vacated the judgment of the Vir­
ginia Court of Appeals and remanded the case for further 
consideration in light of Jones even though the Sullivan 
petitioners did not rely on §1982 in the Virginia courts.

In any case, 42 U. S. C. §1981, which was specifically 
pleaded in the complaint herein, outlaws racial discrimina­
tion in contractual arrangements and, therefore, applies 
here because petitioners’ race was the sole reason they 
were not permitted to purchase “ membership” privileges 
at Lake Nixon.2 It follows that the Jones holding that the 
1866 Civil Eights Act, of which §1981 was an integral part, 
bars private racial discrimination is at least as applicable 
to Lake Nixon’s “memberships” as it was to the corporate 
shares in Sullivan v. Little Hunting Park, supra.

2 There is little doubt that purchase of “membership” privileges, 
like the purchase of a ticket, to a place of public amusement in­
cludes judicially enforceable contractual rights, see Griffin v. South­
land Racing Corp., 236 Ark. 872, 370 S. W. 2d 429 (1963) ; Vallee 
v. Stengel, 176 F. 2d 697 (3rd Cir. 1949).



20

CONCLUSION

For the foregoing reasons the writ of certiorari should 
issue as prayed and the judgment of the United States 
Court of Appeals for the Eighth Circuit should be re­
versed or, in the alternative, vacated and remanded for 
further consideration in light of Jones v. Mayer, 36 
U. S. L. W. 4661 (U. S. June 17, 1968).

Respectfully submitted,

Jack Greenberg 
James M. Nabrit, III 
Norman C. A maker 
Conrad K. H arper

10 Columbus Circle 
New York, N. Y. 10019

J ohn W. W alker

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Petitioners

Norman J. Chachkin 
220 Locust Street 
Philadelphia, Pa. 19106

Of Corns el



A P P E N D I X



la

In the United States District Court Eastern District 
of Arkansas Western Division 

Rosalyn Kyles and Doris Daniel, )
Plaintiffs, )

v. ) LR-66-0-149

Euell Paul, Jr., Individually and as Owner )
Manager or Operator of the Lake )
Nixon Club, )

Defendant. )

Rosalyn Kyles and Doris Daniel, )
Plaintiffs, )

v. ) LR-66-C-150

J. A. Culberson, Individually and as '
Owner, Manager or Operator of Spring )
Lake, Inc. )

Defendant. )

Memorandum Opinion of the District Court

These two suits in equity, brought under the pro­
visions of Title II of the Civil Rights Act of 1964, P.L. 
88-352, §§201 et seq., 78 Slat. 243 et seq., 42 U.S.C.A.., 
§§2000a and 2000a-l through 2000a-6, have been consoli­
dated for trial and have been tried to the Court without a 
jury. Federal jurisdiction is not questioned and is es­
tablished adequately by reference to section 207 of the 
Act, 42 U.S.C.A., §2000a-6.

Plaintiffs are Negro citizens of Little Rock, Pulaski 
County, Arkansas. The defendants in No. 149, Mr. and 
Mrs. Euell Paul, Jr., own and operate a recreational 
facility known as Lake Nixon. The corporate defendant 
in No. 150, Spring Lake Club, Inc., own and operate a 
similar facility known as Spring Lake. All of the stock



2a

in Spring Lake Club, Inc., except one qualifying share, 
is owned by the defendant, J. A. Culberson, and his wife.

The two establishments are not far from each other. 
Both are located in Pulaski County some miles west of 
the City of Little Rock. In July 1966 the two plaintiffs 
presented themselves at both establishments and sought 
admission thereto. They were turned away in both in­
stances on the representation that the establishments were 
“ private clubs.”

On July 19 plaintiffs commenced these actions on 
behalf of themselves and others similarly situated. The 
complaints allege in substance that both Lake Nixon and 
Spring Lake are “ Public Accommodations”  within the 
meaning of Title II of the Act, and that under the pro­
visions of section 201(a) they, and others similarly sit­
uated, are “ entitled to the full and equal enjoyment of the 
goods, services, facilities, privileges, advantages, and ac­
commodations (of the facilities) without discrimination or 
segregation on the ground of race, color, religion, or 
national origin.”  They pray for appropriate injunctive 
relief as provided by section 201 of the Act.

In their answers the defendants1 deny that Lake 
Nixon and Spring Lake are public accommodations within 
the meaning of the Act; affirmatively, they plead that the 
two facilities are “ private clubs”  and are exempt from 
the Act by virtue of section 201(a), even if initial coverage 
exists.

Sections 201(a) and 201(b) of the Act prohibit racial 
discrimination in certain types of public accommodations 
if their operations “ affect”  interstate commerce, or if 
racial discrimination or segregation in their operation is 
“ supported by State action.”

'Originally, the suits were brought against Mr. Paul and Mr. 
Culberson only. At the commencement of the trial Mrs. Paul and 
Springs Lake Club, Inc., were made parties defendant without ob­
jection, and they have adopted, respectively, the answers of Mr. 
Paul, and Mr. Culberson.



3a

Section 201(b) makes tlie prohibition applicable to 
four categories of business establishments, namely:

“ (1) any inn, hotel, motel, or other establishment 
which provides lodging to transient guests, other than an 
establishment located within a building which contains not 
more than five rooms for rent or hire and which is actually 
occupied by the proprietor of such establishment as his 
residence;

“ (2) any restaurant, cafeteria, lunchroom, lunch 
counter soda fountain, or other facility principally en­
gaged in selling food for consumption on the premises, in­
cluding, but not limited to, any such facility located on the 
premises of any retail establishment; or any gasoline 
station;

“ (3) any motion picture house, theater, concert hall, 
sports arena, stadium or other place of exhibition or en­
tertainment; and

“ (4) any establishment (A) (i) which is physically 
located with in the premises of any establishment other­
wise covered by this subsection, or (ii) within the premises 
of which is physically located any such covered establish­
ment, and (B) which holds itself out as serving patrons of 
such covered establishment.”

Section 201(c) sets forth criteria whereby it may be 
determined whether an establishment affects interstate 
commerce. That section is as follows:

“The operations of an establishment affect commerce 
within the meaning of this subchapter if (1) it is one of 
the establishments described in paragraph (1) of subsec­
tion (b) of this section; (2) in the case of an establish­
ment described in paragraph (1) of subsection (b) of this 
section, it serves or offers to serve interstate travelers or 
a substantial portion of the food which it serves, or gaso­
line or other products which it sells, has moved in com­
merce; (3) in the case of an establishment described in 
paragarph (3) of subsection (b) of this section, it custom­
arily presents films, performances, athletic teams, ex­



4a

hibitions, or other sources of entertainment which move in 
commerce; and (4) in the case of an establishment de­
scribed in paragraph (4) of subsection (b) of this section, 
it is physically located within the premises of, or there is 
physically located within its premises, an establishment 
the operations of which affect commerce within the mean­
ing of this subsection. For purposes of this section, “ com­
merce” means travel, trade, traffic, commerce, transpor­
tation, or communication among the several states, or be­
tween the District of Columbia and any State, or between 
any foreign country or any territory or possession and any 
State or the District of Columbia, or between points in the 
same State but through any other State or the District 
of Columbia or a foreign country.”

Section 101(d) is as follows:

“ Discrimination or segregation by an establishment is 
supported by State action within the meaning of this sub­
chapter if such discrimination or segregation (1) is car­
ried on under color of any law, statute, ordinance, or regu­
lation; or (2) is carried on under color of any custom or 
usage required or enforced by officials of the State or 
political subdivision thereof; or (3) is required by action 
of the State or political subdicision thereof.”

The exemption invoked by defendants appears in sec­
tion 201(e) which provides that the provisions of Title II 
of the Act do not apply to “a private club or other estab­
lishment not in fact open to the public, except to the ex­
tent that the facilities of such establishment are made 
available to the customers or patrons of an establishment 
within the scope of subsection (b) of this section.”

Federal prohibitions of racial, ethnic or religious dis­
crimination or segregation in State and municipal facili­
ties are based ultimately on the 14th Amendment to the 
Constitution of the United States. Title II of the Civil 
Rights Act of 1964 finds its constitutional sanction in the 
commerce clause of the Constitution itself. Constitution, 
Article 1, Section 8, Clause 3. That Title II, as written, 
is constitutional is now settled beyond question, at least



5a

as far as this Court is concerned at this time. Heart of 
Atlanta Motel v. United States, 379 U.S. 241; Katzenbach 
v. McClung, 379 U.S. 294; Willis v. The Pickrick Restau­
rant, E.D. Ga., 231 F.Supp. 396, appeal dismissed; Maddox 
v. Willis, 382 U.S. 18, rehearing denied, 382 U.S. 922.

The rationale of those holdings is that Congress per­
missibly found that racial discrimination, including racial 
segregation, in certain types of business establishments 
adversely affects interstate commerce, and acted constitu­
tionally to prohibit such discrimination. These eases 
also establish that, even though practices on the part of 
an individual enterprise have no significant or even meas­
urable impact on commerce, such practices by such enter­
prise are prohibited where they are of a type which Con­
gress has found affects commerce adversely.

In coming to the latter conclusion the Court in Mc­
Clung drew an analogy between an individual business 
man who practices racial discrimination and an individual 
farmer who violates a provision of the Government farm 
program. It was said (pp. 300-301 of 379 U.S.):

“ It goes without saying that, viewed in isolation, the 
values of food purchased by Ollie’s Barbecue from sources 
supplied from out of state was insignificant when com­
pared with the total foodstuffs moving in commerce. But, 
as our late Brother Jackson said for the Court in Wickard 
v. Filburn, 317 U.S. I l l  (1942):

“ ‘That appellee’s own contribution to the demand for 
wheat may be trivial by itself is not enough to remove him 
from the scope of federal regulation where, as here, his 
contribution taken together with that of many others simi­
larly situated, is far from trivial . . .

The burden in these cases is upon the plaintiffs to 
establish, first, that the facilities in question are estab­
lishments covered by the Act and, second, that plaintiffs 
have been subjected to racial discrimination prohibited by 
the Act. On the other hand, the burden is upon the re­
spective defendants to show that they are entitled to the 
private club exemption which they invoke.



6a

There is no serious dispute as to the facts in either 
case.

Lake Nixon has been a place of amusement in Pulaski 
County for many years. Several years ago the proper­
ties were acquired and improved by Mr. and Mrs. Paul, 
the present owners and operators. The Spring Lake 
property was acquired by Mr. Culberson in the spring of 
1965 and the Spring Lake Club. Inc., was organized as an 
ordinary business and corporation under the general cor­
poration laws of Arkansas on April 12 of that year.2 Both 
establishments are operated for the financial profit of the 
owners or owner. During 1963 and 1966 Lake Nixon 
earned substantial profits; Mr. Culberson is not sure 
whether Spring Lake has earned profits; no dividends 
have been paid by the corporation, and Mr. Culberson has 
drawn no salary. He is engaged in a number of business 
enterprises, and Spring Lake is actually operated by hired 
employees of the corporation.

The facilities available at both establishments are es­
sentially the same although those at Lake Nixon are con­
siderably more extensive than those available at Spring 
Lake. Primarily, the recreation offered is of the out­
door type, such as swimming, boating, picnicing, and sun 
bathing. Lake Nixon also has a miniature golf course.

There is a snack bar at each establishment at which 
hamburgers, hot dogs, some sandwiches, soft drinks, and 
milk are sold to patrons during 1965 and 1966. However, 
the snack bar operations were purely incidental to the 
recreational facilities, and the income derived from the 
sales of food and drinks was small in comparison to the 
income derived from fees for the use of the recreational 
facilities. About the middle of August 1966 and after 
this suit was filed, the sale of food items at Spring Lake 
was discontinued entirely.

2Mr. Culberson did no' recall definitely whether title to the 
property was taken originally in his name and then transferred to 
the corporation or whether the former owner conveyed directly to 
the corporation. The matter is not material. Mr. Culberson’s pri­
mary purpose in incorporating his operation was to avoid personal 
tort liability in case of accidental injury to a patron.



7a

In each of the snack bars there is located a mechani­
cal record player, commonly called a “ Juke Box,”  which 
patrons operate by the insertion of coins. Patrons may 
dance to the juke box music or may simply sit and listen 
to it. There is no dispute that the juke boxes were man­
ufactured outside of Arkansas, and the same thing may 
be said about at least many of the records played on the 
machines. The machines are rented from their local 
owner or owners by both of the establishments here in­
volved.

During the months in which Lake Nixon is open, a 
dance is held once a week on Friday or Saturday night. 
An attendance charge is made with respect to these dances, 
and there is “ live music”  supplied by local bands made 
up of young people who call themselves by such names as 
“ The Romans,”  “ The Pacers,”  or “ The Gents.”  Al­
though the bands are compensated for their playing, 
actually the musicians are little more than amateurs, and 
their operations do not in general extend beyond the Little 
Rock-North Little Rock areas; certainly, there is nothing 
to indicate that these young musicians move in interstate 
commerce.

On occasions similar dances are held at Spring Lake, 
but they are sporadic and care is taken not to schedule a 
dance at Spring Lake for the same night on which a dance 
is to be held at Lake Nixon.

The operators of both facilities have stated candidly 
that they do not want to serve Negro patrons for fear 
of loss of business, and they do not desire to be covered 
by the Act. In this connection it appears that Mr. Cul­
berson is willing to do just about anything in the future to 
avoid coverage if Spring Lake is in fact covered and non­
exempt at this time.

Following the passage of the Act, Mr. and Mrs. 
Paul began to refer to their operation as a private 
club, and patrons have been required, at least during 1965 
and 1966, to purchase “ memberships”  for the nominal 
fee of twenty-five cents a year or per season. These



8a

fees are in addition to regular admission charges. A 
similar procedure has been following at Spring Lake 
which was not organized until after the passage of the 
Act. At Lake Nixon “ memberships”  to the “ club”  are 
sold by either Mr. or Mrs. Paul; at Spring Lake “ mem­
berships”  are sold by whatever employee or employees 
happen to be in charge of the operation at the time.

The Court finds that neither facility has any mem­
bership committee; there is no limit on the number of 
members of either “ club,” 3 no real selectivity is practiced 
in the selection of members, although at each establish­
ment the management reserves the right to refuse to 
adult undesirables; there are no membership lists. The 
Pauls do not know how many people are “members” of 
the Lake Nixon Club; Mr. Culberson estimates that Spring 
Lake, the smaller of the operations, has about 4,000 “ mem­
bers.”  Subject to a few more or less accidental excep­
tions at Spring Lake, Negroes are not admitted to “ mem­
bership”  in either “ club.”  White applicants for mem­
bership are admitted as a matter of routine unless there 
is a personal objection to an individual white person 
making use of the facilities.

The record reflects that during 1965 and 1966 Lake 
Nixon has used the facilities of Radio Station KALO to 
advertise its weekly dances; the announcements were 
made on Wednesday, Thursdays, and Fridays of each 
week from the last of May through September 7. Dur­
ing the same period Lake Nixon inserted one advertise­
ment in “ Little Rock Today,”  a monthly magazine indi­
cating available attractions in the Little Rock area, and 

inserted one advertisement in the “ Little Rock Air Force 
Base,”  a monthly newspaper published at the Little Rock 
Air Force Base at Jacksonville, Arkansas.

3When plaintiffs applied for admission to Lake Nixon and asked 
about joining the “club,” they were told that the membership was 
full; the Pauls now admit that such statement was false in thay there 
has nev°r been and is not now any limit to t he “membership” of 
the “club” .



9a

On June 4, and June 30, 1966, Spring Lake advertised 
Saturday niglit dances over Radio Station KALO; on 
May 26, 27, and 28 a dance was advertised over Station 
KAAY. Station KALO apparently leased the premises 
for a picnic held in July and advertised that picnic from 
June 6 through July 16.

In 1965 Spring Lake advertised certain dances by 
means of announcements over Station KALO. Two of 
these announcements indicated that there would be diving 
exhibitions during the intermissions, and one of the an­
nouncements was to the effect that in addition to the div­
ing exhibition there would be a display of fireworks.

The record contains a sample of a brochure put out by 
Spring Lake; that brochure shows pictures of the facilities, 
describes them in some detail, refers without emphasis 
to “ guest fees”  in addition to the regular admission 
charge and points out that the fee of twenty-five cents 
is to be paid only once. Readers of the brochure are 
advised that the facilities may be reserved for private 
parties by telephoning “ well in advance.”  The brochure 
also contains a map showing one how to reach Spring 
Lake, and the “ membership cards”  of Spring Lake depict 
a similar map.

As stated, both establishments are located some miles 
west of Little Rock. Both are accessible by country 
roads; neither is located on or near a State or federal 
highway. There is no evidence that either facility has 
ever tried to attract interstate travelers as such, and the 
location of the facilities is such that it would be in the 
highest degree unlikely that an interstate traveler would 
break his trip for the purpose of utilizing either estab­
lishment. Of course, it is probably true that some out- 
of-state people spending time in or around Little Rock 
have utilized one or both facilities.

Food and soft drinks are purchased locally by both 
establishments. The record before the Court does not 
disclose where or how the local suppliers obtained the 
products which they sold to the establishments. The



10a

meat products sold by defendants may or may not have 
come from animals raised, slaughtered, and processed in 
Arkansas. The bread used by defendants was baked and 
packaged locally, but judicial notice may be taken of the 
fact that the principal ingredients going into the bread 
were produced and processed in other States. The soft 
drinks were bottled locally, but certain ingredients were 
probably obtained by the bottlers from out-of-State 
sources.

Turning now to the law, the Court will take up the 
issues in what appears to it to be a convenient, if perhaps 
not a strictly logical, order.

Defendants’ claims of exemption as private clubs will 
be rejected out of hand. The Court finds it unnecessary 
to attempt to define the term “ private club,”  as that term 
is used in section 201(a) because the Court is convinced 
that neither Lake Nixon nor Spring Lake would come 
within the terms of any rational definition of a private 
club which might be formulated in the context of an ex­
ception from the coverage of the Act. Both of these 
establishments are simnly nrivately owned accommoda­
tions operated for profit and open in general to all of 
the public who are members of the white race. Cf. United 
States v. Northwest Louisiana Restaurant Club, W.D. La., 
256 F. Supp. 151.

The Court finds without difficulty that plaintiffs were 
excluded from both facilities because they are Negroes. 
That fact was expressly admitted by Mr. Paul speaking 
for Lake Nixon and is inferable if not substantially^ ad­
mitted with respect to Spring Lake. The Court finds 
also that any other individual Negroes who might have 
applied for admission to the facilities during 1966 would 
have been excluded on account of their race, and that 
defendants will continue to exclude Negroes unless the 
Court determines that the facilities are covered by the 
Act.

This brings the Court to a consideration of the basic 
issue of coverage. The question is not whether Lake



11a

Nixon and Spring Lake are “ public accommodations,”  
but whether they are public accommodations falling within 
one or more of the four categories of establishments cov­
ered by the Act.

It is not suggested that either establishment falls 
within the first statutory category, and the Court is per­
suaded that neither falls within the fourth. In that con­
nection the Court finds that both Lake Nixon and Spring 
Lake are single unit operations with the sales of food 
and drink being merely adjuncts to the principal business 
of making recreational facilities available to the public. 
Section 201(b)(4) plainly contemplates at least two es­
tablishments, one of them covered by the Act, operating 
from the same general premises. See e.g. Pinkney v. 
Meloy, M.D. Fla., 241 F. Snpp. 943. That situation does 
not exist here.

The second category set out in section 201(b)(2) con­
sists of establishments “ principally engaged”  in the sale 
of food for consumption on the premises. Food sales 
are not the principal business of the establishments here 
involved, and the second category does not cover them. 
Cf. Newman v. Piggie Park Enterprises, Inc., D.C., S.C., 
256 F. Supp 941.4

The third category, section 201(b)(3), includes cer­
tain specifically described places of exhibition or enter­
tainment and also “ any other place of exhibition or enter­
tainment.” It is clear that neither Lake Nixon nor Spring 
Lake is a motion picture house, concert hall, theatre, sports 
arena, or stadium. Hence, if either establishment is 
covered by the third category it must be on the theory 
that it falls within the catch-all phrase above quoted.

Determination of the scope of the catch-all phrase 
calls for an application of the Rule of ejusdem generis

4In using the term “food sales” the Court includes sales of both 
food and soft drinks. That sales of drinks would not be considered 
as sales of “food” is indicated by Chava v. Sdrales, 10 Cir., 344 F. 
2d 1019; Robertson v. Johnston, E.D. La., 249 F. Supp. 615; Tyson v. 
Cazes, E.D. La., 238 F. Supp. 937, rev’d on other grounds, 3 Cir. 363 
F. 2d 742.



12a

Robertson v. Johnston, E.D. La., 248 F.Supp. 618, 622. 
In that case it was pointed out that “place of entertain­
ment” is not synonymous with “place of enjoyment.” And 
in addition this Court will point out that “ entertainment” 
and “recreation” are not synonymous or interchangeable 
terms.

The statutory phrase “ other place of exhibition or 
entertainment” must refer to establishments similar to 
those expressly mentioned. When one considers the ex­
hibitions and entertainment offered by motion picture 
houses, theatres, concert halls, sports arenas and stadiums, 
it is clear at once that basically patrons of such establish­
ments are edified, entertained, thrilled, or amused in their 
capacity of spectators or listeners; their physical partici­
pation in what is being offered to them is either non-exist­
ent or minimal; their role is fundamentally passive.

The difference in what is offered by the establish­
ments named in section 201(b)(3) and what is offered at 
Lake Nixon and Spring Lake is obvious. The latter es­
tablishments do not offer “ entertainment” in the sense in 
which the Court is convinced that Congress used the word; 
what they offer primarily are facilities for recreation 
whereby their patrons can enjoy and amuse themselves.

In adopting section 201(b)(3) Congress must have 
been aware that “ entertainment” and “recreation” are not 
synonymous or co-extensive, and had Congress intended 
to provide coverage with respect to a “place of recreation,” 
it could have said so easily. The Court thinks that it is 
quite significant that neither the category in question nor 
any other category mentioned in section 201(b) makes 
any mention of swimming pools, or parks, or recreational 
areas, or recreational facilities. And the Court concludes 
that establishments like Lake Nixon and Spring Lake do 
not fall within section 201(b)(3) or any other category 
appearing in that section as it is presently drawn.

In coming to this conclusion the Court has not over­
looked the dancing which has gone on at both establish­
ments or the diving exhibitions and fireworks display at



13a

Spring Lake. These exhibitions and that display were 
isolated events which took place in 1965, which have not 
been repeated, and which Mr. Culberson says will not be 
repeated. They were insignificant anyway, and it ap­
pears that the diving, which was done by life savers em­
ployed by Spring Lake, was not so much for the purpose 
of entertaining patrons as to demonstrate to them the 
competency of the life saving personnel.

As to the dancing, there are two things to be said: 
first, the dances held at Spring Lake play no significant 
part in the operations of that establishment, and the part 
played by the dances held regularly at Lake Nixon would 
seem to play a minor role in the Lake Nixon operation. 
Second, and more basically, it seems to the Court that 
dancing, whether to “ live music” or to records played on 
a juke box, falls more within the concept of “recreation” 
than within the concept of “ entertainment” .

But, even if it be conceded to plaintiffs that the chal­
lenged establishments are “places of entertainment,” the 
Court cannot find that under the law their operations af­
fect interstate commerce. Certainly, the racial discrimi­
nation which the defendants have practiced has not been 
supported by the State of Arkansas or any of its political 
subdivisions.

Referring to section 201(c), the criterion which it 
establishes for the determination of whether a place of 
exhibition or entertainment “ affects commerce” is whether 
the establishment in question customarily presents films, 
performances, athletic teams, exhibitions or other sources 
of entertainment which move in commerce.” (Emphasis 
supplied.)

The emphasized words are not without significance 
when read in comparison with the statutory criterion for 
determining whether the operations of an eating estab­
lishment affect interstate commerce. With regard to 
such an establishment it is sufficient if it has served or 
offered to serve interstate travelers or if a substantial 
portion of the food which it serves has moved in inter­



14a

state commerce. There is a distinct difference between 
person or thing which moves in interstate commerce and 
a person or thing which simply has moved in interstate 
commerce.

As indicated, there is no evidence here and no rea­
son to believe that the local musicians who play for the 
dances at Lake Nixon and Spring Lake have ever moved 
as musicians in interstate commerce or that they are now 
doing so. Nor do the juke boxes, the records and other 
recreational apparatus, such as boats, utilized at the re­
spective establishments “move” in interstate commerce, 
although it is true that the juke boxes, some of their rec­
ords, and part of the other recreational equipment and ap­
paratus were brought into Arkansas from without the 
State.

The Court’s approach to and its solution of the prob­
lems presented by these cases find full support in the 
opinion of Judge West in Miller v. Amusement Enter­
prises, Inc., E.D. La., 239 F.Supp. 323, a case involving a 
privately owned amusement park in Baton Rouge, Louisi­
ana.®

From what has been said it follows that a decree will 
be entered dismissing the complaints in the respective 
cases.

Dated this 1st day of February, 1967.

s / J. Smith Henley 

United States District Judge

5That case was decided on September 13, 1966, and the opinion 
was published on December 12 of that year after the instant cases 
were tried.



15a

Decree

These two cases having been consolidated for purposes 
of trial and having been tried together, and the Court 
being well and sufficiently advised, and having filed 
herein its opinion incorporating its findings of fact and 
conclusions of Law in both cases,

It is by the Court Considered, Ordered, Adjudged, 
and Decreed that plaintiffs in said cases take nothing by 
their complaints, and that both of said complaints be, and 
they hereby are, dismissed with prejudice and at the cost 
of plaintiffs.

Dated this 1st day of February, 1967.

s / J. Smith Henley

United States District Judge



16a

Opinion of the United States Court of Appeals

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 18,824

Mrs. Doris Daniel and Mrs. Rosa->. 
lyn Kyles,

Appellants,
v.

Euell Paul, Jr., Individually and as 
Owner, Operator or Manager of 
Lake Nixon Club,

Appellee.

A p p e a l  from the 
United States Dis­
trict Court for the 
Eastern District of 
Arkansas.

[May 3, 1968.]

Before V an Oosterhotjt, Chief Judge; Mehaffy and 
Heaney, Circuit Judges.

Mehaffy, Circuit Judge.

Doris Daniel and Rosalyn Kyles, plaintiffs-appellants, 
Negro citizens and residents of Little Rock, Pulaski County, 
Arkansas, were refused admission to the Lake Nixon Club, 
a recreational facility located in a rural area of Pulaski 
County and owned and operated by the defendant-appellee 
Euell Paul, Jr. and his wife, Oneta Irene Paul. Plaintiffs



17a

brought this suit seeking injunctive relief from an alleged 
discriminatory policy followed by defendant denying Ne­
groes the use and enjoyment of the services and facilities 
of the Lake Nixon Club.1 This suit was brought as a class 
action under Title II of the Civil Rights Act of 1964, 
P.L. 88-352, §§ 201 et seq., 78 Stat. 243 et seq., 42 U.S.C. 
§§ 2000a et seq., alleging that the Lake Nixon Club is a 
“ public accommodation”  as the term is defined in the Act, 
and that, therefore, it is subject to the A ct’s provisions.

For the purpose of trial this case was consolidated with 
a similar suit brought by plaintiffs against Spring Lake 
Club, Inc. The trial was to Chief District Judge Henley 
who held that neither Lake Nixon Club nor Spring Lake, 
Inc. was a “ public accommodation”  as defined in and 
covered by Title II of the Civil Rights Act of 1964, and 
ordered dismissal of the complaints. We are concerned 
solely with the court’s decision with regard to Lake Nixon 
Club, since there was no appeal from the portion of the 
decision regarding Spring Lake, Inc. Chief Judge Henley’s 
memorandum opinion is published at 263 F.Supp. 412. We 
affirm.

The plaintiffs alleged in their complaint that the Lake 
Nixon Club is a place of public accommodation within the 
meaning of 42 U.S.C. §§ 2000a et seq.; that it serves and 
offers to serve interstate travelers; that a substantial por­
tion of the food and other items which it serves and uses 
moves in interstate commerce; that its operations affect 
travel, trade, commerce, transportation, or communication 
among, between and through the several states and the 
District of Columbia; that the Lake Nixon Club is oper­
ated under the guise of being a private club solely for

i At the trial, an oral amendment was made and accepted making 
Mrs. Paul a party to the action.



18a

the purpose of being able to exclude plaintiffs and all 
other Negro persons; and that the jurisdiction of the court 
is invoked to secure protection of plaintiffs’ civil rights 
and to redress them for the deprivation of rights, privi­
leges, and immunities secured by the Fourteenth Amend­
ment to the Constitution of the United States, Section 1; 
the Commerce Clause, Article I, Section 8, Clause 3 of 
the Constitution of the United States; 42 U.S.C. § 1981, 
providing for the equal rights of citizens and all persons 
within the jurisdiction of the United States; and Title II 
of the Civil Eights Act of 1964, 78 Stat. 243, 42 U.S.C. 
§§ 2000a et seq., under which they allege that they are 
entitled to an injunction restraining defendant from deny­
ing them and others similarly situated admission to and 
full use and enjoyment of the “ goods, services, facilities, 
privileges, advantages, and accommodations”  of the Lake 
Nixon Club.

The defendant denied that Lake Nixon is a place of 
public accommodation within the meaning of the Act; 
denied that Lake Nixon serves or offers to serve inter­
state travelers or that a substantial portion of the food 
and other items which it serves and uses moves in inter­
state commerce; denied that its operations affect travel, 
trade, commerce, transportation or communication between 
and through the several states and the District of Columbia 
within the meaning of the Act; and, further answering, 
averred that defendant operates Lake Nixon Club as a 
place to swim; that he has a large amount of money in­
vested in the facility; that if he is compelled to admit 
Negroes to the lake, he will lose the business of white 
people and will be compelled to close his business; that the 
value of his property will be destroyed: and that he will 
be deprived of his rights under the Fourteenth Amendment 
to the Constitution of the United States.



19a

The provisions of the Civil Eights Act of 1964 which 
define “ a place of public accommodation”  as covered by 
the Act, and which plaintiffs contend bring the Lake Nixon 
Club within its coverage, are contained in 42 U.S.C. § 2000a
(b), and provide as follows:

“ (b) Each of the following establishments which 
serves the public is a jjlace of public accommodation 
within the meaning of this subchapter if its operations 
affect commerce, or if discrimination or segregation 
by it is supported by State action:

“  (1) any inn, hotel, motel, or other establishment 
which provides lodging to transient guests, other 
than an establishment located within a building 
which contains not more than five rooms for rent 
or hire and which is actually occupied by the pro­
prietor of such establishment as his residence;
“ (2) any restaurant, cafeteria, lunchroom, lunch 
counter, soda fountain, or other facility prin­
cipally engaged in selling food for consumption 
on the premises, including, but not limited to, any 
such facility located on the premises of any retail 
establishment; or any gasoline station;
“ (3) any motion picture house, theater, concert 
hall, sports arena, stadium or other place of ex­
hibition or entertainment; and 
“  (4) any establishment (A ) (i) which is physically 
located within the premises of any establishment 
otherwise covered by this subsection, or (ii) 
within the premises of which is physically located 
any such covered establishment, and (B) which 
holds itself out as serving patrons of such covered 
establishment.”  (Emphasis added.)

It will be noted that an establishment falling in any of 
the four categories outlined above is covered by the Act 
only “ if discrimination or segregation by it is supported 
by State action,”  which is not contended here, or “ if its



20a

operations affect commerce,”  The criteria for determining 
whether an establishment affects commerce within the 
meaning of the Act are set forth in 42 U.S.C. § 2000a (c), 
as follows:

“ (c) The operations of an establishment affect com­
merce within the meaning of this subchapter if (1) 
it is one of the establishments described in paragraph 
(1) of subsection (b) of this section; (2) in the case 
of an establishment described in paragraph (2) of 
subsection (b) of this section, it serves or offers to 
serve interstate travelers or a substantial portion of 
the food which it serves, or gasoline or other products 
which it sells, has moved in commerce; (3) in the case 
of an establishment described in paragraph (3) of sub­
section (b) of this section, it customarily presents, 
films, performances, athletic teams, exhibitions, or 
other sources of entertainment which move in com­
merce; and (4) in the case of an establishment de­
scribed in paragraph (4) of subsection (b) of this 
section, it is physically located within the premises of, 
or there is physically located within its premises, an 
establishment the operations of which affect commerce 
within the meaning of this subsection. For purposes 
of this section, ‘ commerce’ means travel, trade, traffic, 
commerce, transportation, or communication among 
the several States, or between the District of Columbia 
and any State, or between any foreign country or any 
territory or possession and any State or the District 
of Columbia, or between points in the same State but 
through any other State or the District of Columbia 
or a foreign country.”

The facts in the case are relatively simple and not in 
material dispute. The Lake Nixon property, consisting of 
232 acres, is located on a country road several miles from 
the City of Little Rock and is not close to any state or 
federal highway. In 1962 Paul and his wife purchased 
this property, and since that time they have made their



21a

home there and operated the facility for recreational pur­
poses. In 1964 they adopted a club plan in order to pre­
vent undesirables from using the facility, with no thought 
of simply excluding Negroes, as no Negro had ever sought 
admission.2 A  membership fee of 25$ per person per sea­
son was charged. The only Negroes who ever sought ad­
mission were the two plaintiffs and a young Negro man 
who accompanied them to Lake Nixon on July 10, 1966. 
When they sought to use the facilities, Mrs. Paul told 
them that the membership was filled, but candidly testified 
at the trial that their admission was denied because of 
their race. In response to written interrogatories pro­
pounded to Mr. Paul in a discovery deposition, he replied 
that he and his wife exercised their own judgment in ac­
cepting applicants for membership and refused those whom 
they did not want. Referring to the plaintiffs, Mr. Paul 
stated:

“ At that time, we refused admission to them because 
white people in our community would not patronize us 
if we admitted Negroes to the swimming pool. Our 
business would be ruined and we have our entire life 
savings in it.”

Mr. and Mrs. Paul invested $100,000.00 in the property, 
and, although it is operated only during the swimming 
season—from some time in May until early September 
depending upon the weather—it has earned a substantial 
and comfortable livelihood for them, producing net profits 
in excess of $17,000.00 annually.

2 In this regard, Mrs. Paul testified as follows:
“Q. Now, what do you have out there, Mrs. Paul, by way of facili­

ties for the people that come out there; do you operate it as a club?
“A. Yes, we do, we operate it as a club.
“Q. Now, at the time you put this on a club basis did you do it 

for the purpose of excluding Negroes?
“A. Well, no, because there had never been any out there; it was 

five miles to the closest Negro addition; and it was really the last 
thing on our mind at the time; we had to do it to eliminate un­
desirables.”



22a

Plaintiff Mrs. Doris Daniel, wlxo lived in Little Eock 
some twelve miles from Lake Nixon, was the only witness 
who testified on behalf of the plaintiffs. The other evi­
dence is incorporated in pretrial answers to interroga­
tories and the testimony of Mr. and Mrs. Paul. Mrs. 
Daniel testified that she was employed as a secretary for 
Christopher C. Mercer, Jr. She further testified that she 
went to Lake Nixon Club on about July 10, 1966, accom­
panied by a girl friend, Rosalyn Kyles, the other plaintiff, 
and a male acquaintance. She told the attendant at the 
admission window that they would like to come in but was 
advised that they would have to wait and see the lady in 
the next room. Mrs. Paul was the lady to whom they were 
referred, and Mrs. Daniel testified that “ she asked if we 
were members; and we stated we weren’t; she said we 
would have to be members to come in; and we asked to 
get application to apply for membership and she said I ’m 
sorry, but we’re filled up.”  This witness had never been 
to Lake Nixon before and testified that she had heard the 
advertising on the radio and people talking about it and 
went out to look it over, and perhaps participate in some 
of the activities. She took her swimming suit with her.

While the principal attraction at Lake Nixon is swim­
ming, the facility also had, at the time of the trial of this 
case, fifteen aluminum paddle boats available for rent, two 
coin-operated juke boxes, and a miniature golf course. Also 
operated in connection with the business was a snack bar 
which offered for sale hamburgers, hot dogs, milk and soft 
drinks, but did not stock or sell coffee, tea, cigars, cigarettes, 
sugar or beer. On Friday nights there usually would be 
a dance at Lake Nixon with “ live music”  furnished by 
young musicians from the Little Eock area who were 
amateurs and also patrons of the facility. There is no 
evidence that they ever played outside this immediate



23a

locality, but to the contrary the undisputed evidence indi­
cates that they did not.3

Mr. Paul further stated in response to interrogatories 
that during the preceding twelve months the Lake Nixon 
Club had advertised only twice in a paper or magazine— 
one time in May in a local monthly magazine entitled 
“ Little Rock Today,”  and one time in June in a monthly 
paper published at the Little Rock Air Force Base. An­
nouncements of the dances were also made on a local radio 
station, inviting members of the club to attend.4

s Mr. Paul testified on cross-examination as follows:
“Q. Now, did you have bands out at your place on the week ends?
“A. Yes.
“Q, Were they local bands?
“A. Yes.
“Q. Do you know whether those bands happened to play in Jack­

sonville?
“A. No.
“Q. You really don’t know where they played, do you?
“A. Yes, I’m pretty certain they played just right here in Little 

Rock.
“Q. Just for you; what band was it?
“A. Well, we had the Romans, the Loved Ones. I can’t remember 

the names of all-----
“Q. You had a lot of different bands?
“A. Yes.
“Q. How can you be sure that they just played in Little Rock?
“A. Because they were members there and were frequently out 

there; they mostly worked in town and this was a hobby; they 
were not professionals.”

4 Mr. Paul testified as follows:
“Q. Did you advertise for persons to come and make use of the 

facilities during the summer?
“A. Members only.

“A. Our opening statement was basically, well, specifically stated 
that it was for members only.

“Q. For members only?
“A. Yes.”

Mrs. Paul testified as follows:
“Q. I believe there has been some evidence introduced of the ads 

you had over the radio, were those ads addressed to members of the 
club?

“A. Members of Lake Nixon.
“Q. To members of Lake Nixon?
“A. To all members of Lake Nixon it usually ran.”



24a

The food business at Lake Nixon was minimal. Accord­
ing to the stipulation of the parties, the net income from 
food and concession sales was only $1,412.62 for the entire 
1966 season. There were an estimated 100,000 admissions 
to Lake Nixon during the season and the food sold there 
was a minor and insignificant part of the business. The 
testimony was that the club was not in the food business 
but merely had the snack bar as a necessary adjunct to 
serve those who washed to refresh themselves during an 
afternoon or evening of participation in the various forms 
of recreation offered— swimming, boating, minature golf­
ing, or dancing.5

The district court found that Lake Nixon was not a 
private club but was simply a privately owned accommoda­
tion operated for profit and open in general to all mem­
bers of the white race. The court further found that the 
defendants were excluded on account of their race but that 
the Lake Nixon Club did not fall within any of the four 
categories designated by Congress as “ public accommoda­
tions”  which affect commerce within the meaning of the 
Civil Rights Act of 1964, and, therefore, the Club was not 
subject to its provisions. We agree with the court’s con­
clusion.

Plaintiffs do not contend that Lake Nixon falls within 
the first category pertaining to inns, hotels, motels, etc. 
They do, however, contend that the three remaining cate­
gories bring it within the Act.

r> Mr. Paul testified on cross-examination as follows:
“Q. But sales from sandwiches and the like did account for a 

large degree of your gross sales; is that true?
“A. No, very minor what we make off of that; food was just a 

commodity to have there for the peole if they wanted it; I mean 
we were not in the food business—there was no restaurant—it was 
just a necessity.”



25a

As hereinbefore pointed out, the second category in­
cludes “ any restaurant, cafeteria, lunchroom, lunch coun­
ter, soda fountain, or other facility principally engaged in 
selling food for consumption on the premises,”  if its 
operations affect commerce, but not otherwise. In deter­
mining whether its operations affect commerce, we must 
look to 42 U.S.C. § 2000a (c), which provides that the 
operations of an establishment affect commerce within the 
meaning of this subchapter in the case of an establishment 
described in paragraph (2) of subsection (b), if it “ serves 
or offers to serve interstate travelers or a substantial por­
tion of the food which it serves, or gasoline or other 
products which it sells, has moved in commerce.”

The trial court found that there was no evidence that 
the Lake Nixon Club has ever tried to attract interstate 
travelers as such, and that the location of the facility is 
such that it would be of the highest degree unlikely that 
an interstate traveler would break his trip for the purpose 
of utilizing its facilities, it being located on a country road 
remote from either a federal or a state highway. With 
regard to the food served, the trial court reasoned that 
since the second category consists of establishments “ prin­
cipally engaged”  in the sale of food for consumption on 
the premises and since food sales are not the principal 
business of the Lake Nixon Club, it would not be included 
in the second category. In this connection, the court held 
that the Lake Nixon Club was a single unitized operation, 
with the sale of food and drink being merely adjuncts to 
the principal business of making recreational facilities 
available to the public, and that, therefore, it would not 
come within the fourth category making the Act applicable 
to an establishment otherwise covered or within the prem­
ises of which is physically located any such covered estab­
lishment.



26a

With regard to whether a substantial portion of the 
food which Lake Nixon serves has moved in commerce, the 
trial court found that food and soft drinks were purchased 
locally by the Club but noted that the record before the 
court did not disclose where or how the local suppliers ob­
tained the products. The court further observed that the 
meat products sold by the defendants may or may not 
have come from animals raised, slaughtered, and processed 
in Arkansas. It also made an observation that the bread 
used in the sandwiches was baked and packaged locally 
but took judicial notice that the principal ingredients going 
into the bread were produced and processed in other states. 
This observation on the part of the court, however, was 
entirely voluntary, and the ingredients in the bread would 
not constitute a substantial part of the food served. We 
might add that it is a matter of common knowledge that 
Borden’s of Arkansas, which the record shows supplied 
the milk, obtains the unprocessed milk for its local plant 
from Arkansas dairy farmers.

Looking to the legislative history of the Civil Rights 
Act for an indication regarding what the proponents of 
the bill intended by the use of the word “ substantial”  in 
§ 2000a (c), we note that Robert F. Kennedy, who was then 
Attorney General, expressed the opinion in the hearings 
on S. 1732 before the Senate Committee on Commerce that 
the word “ substantial”  means “ more than minimal.”  
Codogan v. Fox, 266 F.Supp. 866, 868 (M.D. Fla. 1967). 
In Newman v. Piggie Park Enterprises, Inc., 256 F.Supp. 
941 (D. S.C. 1966), rev’d on other grounds, 377 F.2d 433 
(4th Cir. 1967), cert, granted, 88 S.Ct. 87, the court held 
that where the evidence showed that at least 40% of the 
food moved in commerce, this was a “ substantial”  portion 
under a construction of the word in its usual and custom­
ary meaning, which the court defined as follows: “ some­



27a

thing of real worth and importance; of considerable value; 
valuable; something worthwhile as distinguished from 
something without value or merely nominal. ’ ’ In the New­
man case, the district court held that the five drive-in 
restaurants belonging to Piggie Park Enterprises, Inc., all 
of which were located on or near interstate highways, were 
not covered by the Act because the evidence showed that 
less than 50% of the food was eaten on the premises, but 
the Fourth Circuit Court of Appeals reversed, holding 
that the test in construing this provision of the Act was 
not whether a principal portion of the food was actually 
consumed on the premises but whether the establishment 
was principally engaged in the business of selling food 
ready for consumption on the premises.

In Willis v. Pickrick Restaurant, 231 F.Supp. 396 (N.D. 
Ga. 1964), where the restaurant had annual gross receipts 
from its operations of over $500,000.00 for the preceding 
year and its purchases of food exceeded $250,000.00, the 
court found that a substantial part of this large amount of 
food originated from without the state and that, therefore, 
it affected commerce. Furthermore, while there was little 
evidence that it actually served interstate travelers, the 
evidence was clear that it offered to serve them by reason 
of the fact that it had large signs on two federal highways, 
and the restaurant itself was on the main business route 
of II. S. 41, a federal interstate highway.

In Gregory v. Meyer, 376 F.2d 509 (5th Cir. 1967), the 
court held that the question of the amount of food served 
in a restaurant which has moved in interstate commerce is 
a relative one and that the drive-in there involved, which 
had an annual sales of about $71,000.00, of which approxi­
mately $5,000.00 resulted from the sale of coffee and tea 
which had moved in interstate commerce, and which de­



28a

rived two-thirds of its sales volume from beef products 
which came from a meat packer who purchased twenty to 
thirty per cent of his cattle from another state, was cov­
ered by the Act. Furthermore, the drive-in in the Gregory 
case was located only three blocks from a federal highway, 
on a street which was an extension of the highway, and 
the court found that it was engaged in offering to serve 
interstate travelers.

The case of Katzenbach v. McClung, 379 U.S. 294 (1964), 
is likewise distinguishable. The Supreme Court there 
stated at page 298: “ In this case we consider its [the 
A ct’s] application to restaurants which serve food a sub­
stantial portion of which has moved in commerce.”  The 
restaurant there was located on a state highway, eleven 
blocks from an interstate highway, and evidence was intro­
duced that 46% of the food served was meat which had 
been procured from outside the state.

The case of Evans v. Laurel Links, Inc., 261 F.Supp. 474 
(E.D. Va. 1966), cited by plaintiffs, is likewise factually 
inapposite. In the Evans case, it was stipulated that a 
portion of the food served moved in interstate commerce 
and that each year out-of-state teams participated in team 
matches; further, that the golf shop sold golf equipment, 
most of which was manufactured outside the state and had 
moved in interstate commerce. The court found that the 
lunch counters at Laurel Links served and offered to serve 
interstate travelers and also that the defendant customarily 
presented athletic teams which moved in commerce, thereby 
bringing it under subsection (b), paragraph (3) and sub­
section (c) of 42 U.S.C. § 2000a. The court there said at 
page 477: “ The Act applies because an out-of-state team 
plays on the defendant’s course on a regularly scheduled 
annual basis.”



29a

In the record before us, there is a total lack of proof 
that Lake Nixon Club served or offered to serve interstate 
travelers or that a substantial portion of the food which 
it served moved in interstate commerce. Therefore, all of 
the cases cited by the parties are distinguishable inasmuch 
as there is not a word of record testimony here that would 
justify a conclusion that the concession stand engaged in 
or offered to engage in any business affecting commerce. 
The same can be said with respect to the recreational facili­
ties at Lake Nixon. There is not one shred of evidence 
that Lake Nixon customarily presented any activity or 
source of entertainment that moved in interstate commerce.

The evidence here is that Lake Nixon is a place for 
swimming and relaxing. While swimming is the principal 
activity, it does have fifteen aluminum paddle boats which 
are leased from an Oklahoma-based company and a few 
surf boards. It is common knowledge that annually thou­
sands of this type boat are manufactured locally in Ar­
kansas, and there is no evidence whatsoever that any of 
the equipment moved in interstate commerce. Further­
more, we do not interpret the law to be that coverage under 
the Act extends to businesses because they get a portion 
of their fixtures and/or equipment from another state. 
Otherwise, the businesses which the A ct’s sponsors and the 
Attorney General of the United States specifically said 
were not covered would be included in the coverage.6 
There were two juke boxes obtained from a local amuse­
ment company which provided music upon the insertion 
of a coin. As hereinbefore stated, there usually would be 
a dance on Friday nights if the weather was good, and the

6 Senator Magnuson, floor manager of Title II, said that dance studios, 
bowling allevs and billiard parlors would be exempt. 110 Cong. Rec. 7406'
(4/9/641; M iller  v. A m u sem en t E n terp rise s . In c .......  F.2d . . .  (5th Cir.
jf 24259 9/6/67).



30a

dances were sometimes advertised on a local radio station, 
apprising the members concerning the dance and inviting 
them to attend.

When the juke boxes were not utilized at the Friday 
night dances, a small band was provided but it was com­
posed of local young amateurs and members of the Club, 
and there is no evidence whatsoever that they ever played 
outside Pulaski County. Such operations do not affect 
commerce under the definition of the statute which makes 
coverage applicable if the operation “ customarily presents 
films, performances, athletic teams, exhibitions or other 
sources of entertainment which move in commerce.”  Tt 
was clearly not the intention of the Congress to include 
this type of recreation within the coverage of the Act, 
but, even if it should be construed as entertainment within 
the definition of the Act, it did not move in commerce and 
consequently is not proscribed.

The Civil Rights Act of 1964, as everyone knows, is a 
compromise act. It was not intended to be all inclusive, 
and, in this regard Senator Humphrey, a leading pro­
ponent of the bill, stated:

“ The reach of that title [H.R. 7152] is much narrower 
than when the bill was first introduced. It is also 
narrower than S. 1732, the bill reported by the Senate 
Commerce Committee, which covers the general run of 
retail establishments. . . . The deletion of the cover­
age of retail establishments generally is illustrative 
of the moderate nature of this bill and of its intent 
to deal only with the problems which urgently require 
solution.”  110 Cong. Rec. 6533.7

7 This extract is taken from the legislative history furnished the Fifth 
Circuit by the Civil Rights Division of the Department of Justice and 
attached to the opinion in M iller  v. A m u sem en t E n terp rises , In c., supra.



31a

Additionally, Senator Humphrey stated:
“ Of course, there are discriminatory practices not 
reached by H. R. 7152, but it is to be expected and 
hoped that they will largely disappear as the result of 
voluntary action taken in the salutory atmosphere cre­
ated by enactment of the bill.”  HO Cong. Rec. 6567J8

Senator Magnuson, who was floor manager of Title II, 
discussed this title in detail and said:

“ The types of establishments covered are clearly and 
explicitly described in the four numbered subpara­
graphs of section 201 (b). An establishment should 
have little difficulty in determining whether it falls 
in one of these categories. . . . Similarly, places of 
exhibition and entertainment may be expected to know 
whether customarily it (sic) presents sources of enter­
tainment which move in commerce.”  110 Cong. Rec. 
6534.9

A  section-by-section analysis of S. 1732 appears in 2 
U. S. Cong. & Adm. News ’64 at pages 2356 et seq. In a 
paragraph concerning subsection 3 (a) (2), it was stated:

“ This subsection would include all public places of 
amusement or entertainment which customarily pre­
sent motion pictures, performing groups, athletic 
teams, exhibitions, or other sources of entertainment 
which move in interstate commerce.”  (Emphasis 
added.)

We have no disagreement with the trial court’s rationale 
or with its utilization of the rule of ejusdem generis in 
arriving at its conclusion, but our view is that subsection
(c) of the statute so plainly defines the operations that 
affect commerce that it is obvious that Lake Nixon’s ac­

8 See n. 7.

9 See n. 7.



32a

tivities are not proscribed by the Act. Plaintiffs’ argu­
ment that the Act applies is based on the false premise 
that a “ substantial portion of the food sold has traveled 
through interstate commerce,”  which is wholly unsup­
ported by the evidence. Treating this false assumption as 
a fact, plaintiff’s then conclude that “ the operation of the 
snack bar affects commerce within the meaning of § 201 
(c) (2) of Title II .”

In Miller v. Amusement Enterprises, Inc., . . . F.2d . . .  
(5th Cir. it  24259 9/6/67), the panel requested the United 
States, acting through its Civil Rights Division in the 
Department of Justice, to file with the court its brief 
setting forth the legislative history of these provisions 
insofar as pertinent. The response of the Civil Rights 
Division is attached to that opinion. The opinion by the 
three-judge panel in Miller was subsequently reversed by 
a divided court sitting en banc in an opinion handed down 
April 8, 1968. We cite the panel’s slip opinion merely be­
cause it incorporates the Government’s reference to the 
legislative history of the Act, a part of which we have 
heretofore referred to. The facts in the Miller case are 
patently distinguishable from those in the instant case. 
As examples, in Miller the amusement park was “ located 
on a major artery of both intrastate and interstate trans­
portation : . . . its advertisements solicit the business of 
the public generally”  and were not confined to club mem­
bers; and “ ten of its eleven mechanical rides admittedly 
were purchased from sources outside Louisiana.”

What clearly distinguishes the case before us from other 
cases filed under this statute is the total lack of any evi­
dence that the operations of Lake Nixon in any fashion 
affect commerce. There is no evidence that any interstate 
traveler ever patronized this facility, or that it offered to



33a

serve interstate travelers, or that any portion of the food 
sold there moved in commerce, or that there were any 
exhibitions or other sources of entertainment which moved 
in or affected commerce.

The Congress by specifically and in plain language de­
fining the criteria for coverage under subsection (c) pre­
cludes the court from holding upon any rule of construc­
tion that interstate commerce was affected absent requisite 
evidence establishing the criteria spelled out in the statute. 
There is no such evidence in this record.

We have read all the cases cited by the parties, as well 
as others, and our research has failed to disclose a single 
case where there was a complete absence of evidence, as 
there is in the instant case, to establish coverage under 
the Act.

The judgment of the district court is affirmed.

H eaney, Circuit Judge, dissenting:

In my view, the judgment of the District Court cannot 
be upheld. It is based on an erroneous theory of the law 
and is not supported by the facts found by the court.

The court held that the Lake Nixon Club is not a covered 
establishment under the Civil Eights Act of 1964, §§ 201 
(b)(2) and (4), 42 U.S.C. 2000(b)(2) and (4) (1964), de­
spite the fact that a lunch counter is operated on the 
premises, because the lunch counter is merely an adjunct 
to the business of making recreational facilities available 
to the public, and is not a separate establishment.

This conclusion is not supportable. Whether the lunch 
counter is an adjunct of or necessary to the operation of 
the Club is immaterial, as is the question of whether the



34a

lunch counter is operated as a separate establishment or 
as a part of a coordinated whole.

Mr. Chief Justice Warren, commenting on the effect of 
a food facility in an amusement park in Drews v. Mary­
land, 381 U.S. 421, 428, n. 10 (1965),1 stated:

“ There is a restaurant at Gwynn Oak Park; indeed, 
petitioners were standing next to it when they were 
arrested. If a substantial portion of the food served 
in that restaurant has moved in interstate commerce,2 
the entire amusement park is a place of public accom­
modation under the Act. * * * ”

In Evans v. Laurel Links, Inc., 261 F.Supp. 474 (E.T). 
Va. 1966), the court found that a golf course was a 
public accommodation within the meaning of the Act be­
cause it had a lunch counter located on it. It did this 
even though the lunch counter accounted for only fifteen 
per cent of the gross receipts of the golf course. (Lunch 
counter receipts at Lake Nixon Club were approximately 
22.8% of its gross income.)3 In Evans, the court said:

“ The location of the lunch counter on the premises 
brings the entire golf course within the Act under 42 
TT.S.O. § 2000a(b) (4) (A) (ii) which provides that any

1 For reasons hereinafter stated, it is my opinion that, in this case, 
commerce requirements were met by a showing that the Club served 
and offered to serve travelers in interstate commerce, thus I do not reach 
the issue of whether a substantial portion of the food moved in inter­
state commerce.

2 The defendant and others refused to leave an amusement park and 
were convicted in a Maryland State Court of disorderly conduct and dis­
turbance of the peace. After having previously remanded the case to 
the State Court of Appeals, the Supreme Court dismissed a subsequent 
appeal and refused to grant certiorari. Mr. Chief Justice Warren, joined 
by Mr. Justice Douglas, dissented and would have granted certiorari. In 
the course of discussing the legal issues involved, the Chief Justice noted 
that although the 1964 Civil Rights Act was passed after the occurrence 
of the conduct for which the defendants were prosecuted, the Act abated 
the pending convictions. H am m  v. R o ck  H ill. 379 U.S. 306 (1964). In 
the course of stating that view, he made the observations quoted above.

3 In 1966, the gross income from food sales was $10,468.95, as compared 
with a total gross income of $46,326.



35a

establishment within the premises of which is located 
a covered establishment is a place of public accommo­
dation. See H.B. Rep. No. 914, 88th Cong., 2d Sess. 
(1964) (additional Majority Views, Hon. Robert W. 
Kastenmeier) TJ.S. Code Cong. & Admin. News, pp. 
2409, 2410 (1964); Basor, Regulation of Public Accom­
modations Via the Commerce Clause—The Civil Rights 
Act of 1964, 19 Sw.L.J. 329, 331 (1965).”

Id. at 476.

In Adams v. Fazzio Real Estate Co., Inc., 268 F.Supp. 
630 (E.I). La. 1967), the court held that the snack bar 
located on the premises of the bowling alley brought the 
entire facility under the Act. It stated:

“ The statute contains no percentage test, and it is not 
necessary to show that the covered establishment 
which magnetizes the non-covered establishment in 
which it is physically located occupies a majority, or 
even a substantial part of the premises, or that its 
sales are major or even a substantial part of the reve­
nues of the establishment. * * *”

Id. at 638 (footnote omitted).
In Scott v. Young, 12 Race Rel. L. Rep. 428 (E.D. Va. 

1966), the parties consented to the entry of an order pro­
viding that as long as an eating establishment was oper­
ated on the premises of a recreational facility, the entire 
facility would be considered a public accommodation within 
the meaning of the 1964 Civil Rights Act, and that the 
defendant would be enjoined from denying the equal use 
of the facility to any person on the basis of race or color.

Furthermore, House Report 914 stated that the estab­
lishments covered under § 201(b) (4) “ would include, for 
example, retail stores which contain public lunch counters 
otherwise covered by Title I I ; ” 4 and the additional views * &

4 House Report (Judiciary Committee) No. 914, 1964 U. S. Code Cong.
& Ad. N ew s, 2391, 2396,



36a

of the minority stated that “ Section 201(d) precludes 
racial discrimination * * * * * [of] a department store
(operating a lunch counter) * * V ’5 6

In l)rews,6 Evans, Adams and Scott, the records indicate 
that the lunch counter and the recreation facility were 
owned by the same entity and operated as one coordinated 
facility.

The District Court relies on Pinkney v. Meloy, 241 F. 
Supp. 943 (N.D. Fla. 1965), to support its holding that a 
lunch counter must be a separate establishment (appar­
ently separately owned) to evoke § 201(b) (4). There, the 
court held that a barber shop could not discriminate as it 
was located within a hotel, which was a covered establish­
ment. The barber shop was separately owned, but that 
fact was not critical to the Pinkney decision. The legisla­
tive history of the Act gives as an example the precise fact 
situation involved in Pinkney:

“ A hotel barber shop or beauty parlor would be 
an integral part of the hotel, even though oper­
ated by some independent person or entity [Emphasis 
added].’ ’7

The majority opinion of this Court does not base its 
decision on the rationale of the District Court that Lake 
Nixon is not a covered establishment within the meaning 
of §§ 201(b)(2) and (4). It relies instead on an alternative 
ground, namely, that even if it is otherwise covered, 
“ There is a total lack of proof that Lake Nixon Club

5 Additional Views on H.R. 7152 of Hon. William M. McCulloch, Hon. 
John V. Lindsay, Hon. William T. Cahill, Hon. Garner E. Shriver, Hoii. 
Clark MacGregor, Hon. Charles McC. Mathias, Hon. James E. Bromwell 
1964 V. 8 . Code Gong. & A d . N ew s. 2487, 2494.

6 D rew s  v. S ta te , 224 Md. 186, 167 A.2d 341, 342 (1961).
7 Senate Report (Judiciary Committee) No. 872, 1964 XJ. 8 . C ode Conn  

& A d. N ew s. 2355, 2358-59.



37a

served or offered to serve interstate travelers or that a 
substantial portion of the food served moved in interstate 
commerce.”  One of these elements must, of necessity, be 
established to bring the Club within the Act.8

8 It need not be established that the defendants’ food “operations affect 
commerce” if the discriminatory practices by the defendants were “sup­
ported by state action.” A state action theory of the case was not alleged 
nor argued.

The 1964 Civil Rights Act specifically defines “supported by state ac­
tion:”

“§ 201(d) Discrimination or segregation by an establishment is sup­
ported by State action within the meaning of this subchapter if such 
discrimination or segregation (1) is carried on under color of any 
law, statute, ordinance, or regulation; or (2) is carried on under 
color of any custom or usage required or enforced by officials of the 
State or political subdivision thereof; or (3) is required by action 
of the State or political subdivision thereof.”

An Arkansas statute purports to give an omnibus right to discriminate: 
“§ 71-1801. R ig h t to  s e le c t  cu s to m ers , pa tron s o r  clients..'—Every per­
son, firm or corporation engaged in any public business, trade or 
profession of any kind whatsoever in the State of Arkansas, includ­
ing, but not restricted to, * * * restaurants, dining room or lunch 
counters, * * *, or other places of entertainment and amusement, 
including public parks and swimming pools, * * *, is hereby author­
ized and empowered to choose or select the person or persons he 
or it desire to do business with, and is further authorized and em­
powered to refuse to sell to, wait upon or serve any person that the 
owner, manager or employee of such public place of business does 
not desire to sell to, wait upon or serve; * *

Arkansas Statutes Annotated, Vol. 6A (1967 Supp.).
The statute is further supported by criminal sanctions:

“§ 71-1803. F a ilu re to  lea v e  a fte r  req u est—P en a lty .— Any person who 
enters a public place of business in this State, or upon the premises 
thereof, and is requested or ordered to leave therefrom by the owner, 
manager, or any employee thereof, and, after having been so re­
quested or ordered to leave, refuses so to do, shall be guilty of a 
trespass and upon conviction therefor shall be fined not more than 
five hundred dollars ($500.00) or imprisoned in jail not more than 
six (6) months, or both such fine and imprisonment. [Acts 1959, No. 
169, § 3, p. 1007.]”

Arkansas Statutes Annotated, Vol. 6A (1967 Supp.).
In view of the fact that I would reverse on other grounds, it is not neces­
sary to express a view as to whether the plaintiff has made a prima facie 
case that the discrimination is supported by state action under § 201 
(b) (i) by simply showing that the defendant discriminated and that the 
statute explicitly gave him that right. Of., A tH ckes v. 8. H . K r e s s  & 
C om pany, 252 F.Supp. 140 (S.D. N. Y. 1966). Furthermore, it is not 
necessary to express an opinion as to whether it is a defense to estab­
lish that the defendant would have discriminated regardless of the state 
statute. W illia m s  v. H o t Shoppes. In c., 293 F.2d 835, 846-47 (D.C. Cir. 
1961) (dissenting opinion), cert, d enied , 370 U.S. 925 (1962).



38a

As I read the District Court’s decision, it avoided mak­
ing a specific finding on whether the Club offered to serve 
interstate travelers. It did, however, state:

“ It is probably true that some out-of-state people 
spending time in or around Little Rock have utilized 
[Lake Nixon Club facilities!.”

This statement, in my view, constitutes a clear and specific 
finding that the Club served interstate travelers and was 
su licient in and of itself to satisfy the interstate commerce 
requirement of the Act set forth in §201(c) (2) (b).9 Since 
this requirement is satisfied, the Club is covered.

While it is not necessary to find additional grounds to 
satisfy the commerce requirements of the Act, the record 
also supports the conclusion that the Club offered to serve 
travelers in interstate commerce: (1) the Club advertised 
on KALO radio on Wednesdays, Thursdays and Fridays 
from the last of May through the 7th of September;10

9 The conclusion of the District Court draws additional support from 
the following facts:

(1) The defendants made no attempts to specifically exclude interstate 
travelers:

(a) The membership card did not require that the applicant sign 
his address;

(b) The advertisements did not suggest that an interstate traveler 
could not become a member; and

(c) There is no sign posted at the entrance which restricted the 
membership only to Arkansas residents.

(2) Members brought guests.
(3) Lake Nixon appears to be only about six to eight miles by road 

from the only federal highway between Little Rock and Hot Springs.

10 The radio copy read as follows:
“Attention . . .  all members of Lake Nixon. Attention all members 
of Lake Nixon. In answer to your requests, Mr. Paul is happy to 
announce the Saturday night dances will be continued . . . this 
Saturday night with music by the Villagers, a great band you all 
know and have asked to hear again. Lake Nixon continues their 
policy of offering you year-round entertainment. The Villagers play 
for the big dance Saturday night and, of course, there’s the jam 
session Sunday afternoon . . . also swimming, boating, and minia­
ture golf. That’s Lake Nixon. . . . ”



39a

(2) it inserted one advertisement in “ Little Eock Today,”  
a monthly magazine, indicating available attractions in 
the Little Eock area in the same period; (3) it inserted 
one advertisement in the “ Little Eock Air Force Base,”  
a monthly newspaper published at the Little Eock Air 
Force Base, at Jacksonville, Arkansas.

It is clear, as pointed out in the majority opinion, that 
the advertisements were directed to “ members.”  It is thus 
argued that interstate travelers would not consider the 
invitation as having been addressed to them. I cannot 
agree. The membership idea was clearly a ruse to keep 
Negroes from using the Club. It was obviously under­
stood to be such by the people living in the Little Eock 
area, and there is little reason to doubt that nonresidents 
would be less sophisticated. It also appears, from the 
choice of media, that the message was intended to reach 
nonresidents as well as local citizens. No other sound 
reason can be advanced for using mass media to promote 
“ entertainment”  at a “ private”  club.

The District Court rationalized that the Club was not a 
place of exhibition or entertainment as § 201(b) (3) was 
not intended to cover facilities where people came to enjoy 
themselves by swimming, golfing, boating or picnicking. 
It reasoned that the Act was only intended to apply to 
a situation “ where patrons came to be edified, entertained, 
thrilled or amused in their capacity of spectators or lis­
teners.”  While it is unnecessary to reach this issue here, 
the majority opinion reaches it, and thus I feel obliged to.

I cannot concur with the majority: (1) It is difficult to 
conclude that the Club was not a place of entertainment 
when the defendants characterized it in those terms in 
their radio advertisements: “ Lake Nixon continues their 
policy of offering you year-round entertainment.”  Foot-



40a

note 10, supra. See also, Miller v. Amusement Enterprises, 
Inc., Civ. No. 24259 (5th Cir. April 8, 1968) (e» banc), 
reversing 259 F.Snpp. 523 (E.D. La. 1966). (2) It is
equally difficult to conclude that the operation of the Club 
did not affect commerce within the meaning of § 201(c) (3), 
for the District Court specifically found that the juke 
boxes, which furnished music for dancing or listening, 
were manufactured outside of Arkansas, that some of the 
records played on them were manufactured outside of Ar­
kansas, and that part of the other recreational equipment 
and apparatus (aluminum paddle boats and “ Yaks” — 
surfboards) were brought into Arkansas from without the 
state. The fact that the aluminum paddle boats and the 
“ Yaks”  (surfboards) could have been manufactured in 
Arkansas is, in my judgment, not material when the Dis­
trict Court found and the record shows that they were 
leased and purchased11 from an Oklahoma concern and 
imported into Arkansas.

A true copy.

Attest:
Clerk, U. 8. Court of Appeals, Eighth Circuit.

l i  It appears from the record that the “Yaks” were purchased rather 
than leased:

“Q. Do you have any other kind of boats there?
“A. We have what we call a yak.
“Q. A yak; what’s a yak?
“A. Its similar to a surfboard.
“Q. Similar to a surfboard; do you know where you purchased 

that?
“A. From the same company.
“Q. What company is that?
“A. Aqua Boat Company.
“Q. Who?
“A. Aqua Boat Company.
“Q. Is that a local Company?
“A. No.
“Q. Where is it?
“A. I believe they’re in Oklahoma, Bartlesville.”



41a

Judgment

United States Court of Appeals 
For the Eighth Circuit.
No. 1 8 ,8214.. September Term, 1967.

Doris Daniel and Rosalyn )
Kyles, )

Appellants, )
) Appeal from the 

vs. ) United States
) District Court

Euell Pauli, Jr., Individu- ) for the Eastern 
ally and as Owner, Manager ) District of
or Operator of the Lake ) Arkansas.
Nixon Club. )

This cause came on to be heard on the 
record from the United States District Court 
for the Eastern District of Arkansas, and was 
argued by counsel.

On Consideration Whereof, It is now 
here Ordered and Adjudged by this Court that 
the Judgment of the said District Court, in 
this cause, be, and the same is hereby, affirmed, 
in accordance with majority opinion of this 
Court this day filed herein.

May 3, 1968.



42a

Order Denying Rehearing

United States Court of A peals 
or the Eighth Circuit

No. 16,821+.

Doris Daniel, et al., )
)

Appellants, )
)

v s . ))
Euell Paul, Jr., etc. )

Appeal from the 
United States Dis­
trict Court for the 
Eastern District 
of Arkansas.

There is before the Court appellants 

petition for rehearing en banc and on consider 

ation of such petition, It is the Order of the 

Court that the petition for rehearing en banc 

be, and it is hereby, denied.

June 10, 1968



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