Carson v.
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APPENDIX
Supreme Court of the United States
OCTOBER TERM, 1968
No. 488
MRS. DORIS DANIEL and MRS. ROSALYN KYLES,
PETITIONERS,
vs.
EUELL PAUL, JR., Individually and as Owner,
Operator or Manager of Lake Nixon Club,
RESPONDENT.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEARS
FOR THE EIGHTH CIRCUIT
PETITION FOR CERTIORARI FILED SEPTEMBER 7, 1968
CERTIORARI GRANTED DECEMBER 9, 1968
I N D E X
PAGE
Relevant Docket Entries ............. ..................................... 1
Complaint ........ ..... ........ .......... ................. -......................... 2
Answer ..............................................-...... -......... -............ —- 6
Interrogatories ....................... 8
Answers to Interrogatories ................................. 12
Proceedings in District Court, December 7,. 1966 ....... 17
Memorandum Opinion by District Court, February 1,
1967 .................................................................................... 17
Decree .................................................................................... 63
Stipulation .....................................................-...................... 63
Notice of Appeal .............. 63
Opinion by Court of Appeals for the Eighth Circuit,
May 3, 1968 ...................................................................... 64
Judgment of United States Court of Appeals for the
Eighth Circuit, May 3, 1968 ........................................... 91
Petition for Rehearing En B a n c.......... ............................ 92
Certificate .............................................................................. 192
Certificate of Service .......................................................... 102
Order Denying Rehearing, June 10, 1968 ....................... 103
Clerk’s Certificate ..................................................-............. 104
Order Allowing Certiorari, December 9, 1968 ............... 105
PAGE
T estim ony
Plaintiff’s W itnesses:
Euell Paul, Jr.—
D irect.......................... 19
Cross ................................................ 35
Doris Daniel—
D irect...................................................................... 37
Cross ...................................................................... 38
Defendants’ Witness:
Oneta Irene Paul—
D irect...................................................................... 11
Cross ...................................................................... 41
Redirect.................................................................. 45
Plaintiffs’ Exhibits-.
1 in Evidence—Document........................................... 24
2A & 2B in Evidence—Documents ........................... 25
Defendant’s Exhibits:
1 in Evidence—Document........................................... 43
2 in Evidence—Document.......................................... 46
11
Relevant Doeket Entries
July
Aug.
Oct.
Nov.
Nov.
Dec.
Dec.
Feb.
Feb.
Feb.
Mar.
Mar.
18, 1966— Complaint and summons.
3, “ — Answer.
21, “ — Interrogatories to defendant.
2, “ — Letter Pretrial Order, Henley, J.
3, “ — Answer to Interrogatories.
7, “ — Court trial before Henley, J.
29, “ — Reporter’s Transcript of Trial Dec. 7,
1966.
1, 1967— Memorandum Opinion.
1, “ — Decree filed by Henley, J.
10, “ — Stipulation of counsel as to gross income
and sales, etc.
2, “ — Notice of Appeal.
15, “ — Bond for Costs on Appeal.
2
I
The jurisdiction of this Court is invoked pursuant to
28 U.S.C. §1343(3) and §1343(4). This is a suit in equity-
authorized and instituted pursuant to Title II of the Civil
Eights Act of 1964, 78 Stat. 243, 42 U.S.C. §§2000a et seq.,
and 42 U.S.C. §1983. The jurisdiction of the Court is in
voked to secure protection of civil rights and to redress
deprivation of rights, privileges, and immunities secured
by (a) the Fourteenth Amendment to the Constitution of
the United States, §1; (b) the Commerce Clause, Article
I, §8, Clause 3 of the Constitution of the United States;
(c) Title II of the Civil Rights Act of 1964, 78 Stat. 243,
42 U.S.C. §§2000a et seq., providing for injunctive relief
against discrimination in places of public accommodation;
and (d) 42 U.S.C. §1981, providing for the equal rights of
citizens and all persons within the jurisdiction of the
United States.
II
This is a proceeding for an injunction restraining de
fendant from continuing or maintaining any policy, prac
tice, custom and usage of withholding, denying, attempt
ing to withhold or deny, or depriving or attempting to
deprive or otherwise interfering with the rights of plain
tiffs and others similarly situated to admission to and full
use and enjoyment of the goods, services, facilities, privil
eges, advantages and accommodations of the Lake Nixon
Club, Little Eock, Pulaski County, Arkansas.
III
The plaintiffs are (Mrs.) Doris Daniel and (Miss)
Rosalyn Kyles both of whom are Negro citizens of the
Complaint
3
United States and the State of Arkansas who reside in the
City of Little Rock, Pulaski County, Arkansas. Plain
tiffs bring this action on behalf of themselves and on be
half of all others similarly situated, pursuant to Rule 23
(a )(3 ) of the Federal Rules of Civil Procedure. There
are common questions of law and fact affecting the rights
of other Negro persons to purchase and/or enjoy the goods,
services, facilities, privileges, advantages and accommoda
tions of the facility known as the Lake Nixon Club who
are so numerous as to make it impracticable to bring them
all individually before this Court. A common relief is
sought and the interests of this class are adequately rep
resented by plaintiffs.
IV
Defendant Euell Paul, Jr., is the owner, manager or
operator of the facility known as the Lake Nixon Club
located near the City of Little Rock, Pulaski County, Ar
kansas. Said Lake Nixon Club is a place of public ac
commodation within the meaning of Title 42 U.S.C. 2000
(a) et seq. Lake Nixon serves and offers to serve inter
state travelers. A substantial portion of the food and
other items which it serves and uses moves in interstate
commerce. Its operations affect travel, trade, commerce,
transportation or communication among, between and
through the several states and the District of Columbia.
V
On or about July 10, 1966, plaintiffs attempted to
enter facility known as the Lake Nixon Club. Defendant
or his agent refused the plaintiffs entry to the said Lake
Nixon Club on the ground that the Membership of Lake
Nixon Club was full and that no new memberships were
Complaint
4
being accepted. On information and belief, the real rea
son for plaintiffs non-admittance was their race or color.
VI
Plaintiffs further allege on information and belief
that the Lake Nixon Club is operated under the guise of
being a private club solely for the purpose of being able
to exclude plaintiffs and all other Negro persons. Plain
tiffs allege on information and belief that any white per
son may be admitted to the use and enjoyment of the faci
lities of the Lake Nixon Club by merely presenting the
entry fee.
VII
Plaintiffs allege that the racially discriminatory prac
tices of defendant are in continuance of a well established
and maintained policy of refusing plaintiff and others of
their race admission to and enjoyment of the facilities of
the Lake Nixon Club. The State of Arkansas has no
State law, and the County of Pulaski and the City of Little
Rock have no , local laws or ordinances prohibiting the
racially discriminatory practices complained of herein
and establishing or authorizing a State or local authority
to grant or seek the relief prayed for herein. Plaintiffs
have no plain, adequate or complete remedy at law to re
dress these wrongs, and this suit for injunction is the only
means of securing adequate relief. Plaintiffs are now
suffering and will continue to suffer irreparable injury
from defendant’s policy, practice, custom and usage as set
forth herein until enjoined by the Court.
Wherefore, plaintiffs respectfully pray this Court ad
vance this cause on the docket, order a speedy hearing at
the earliest practicable date, and upon such hearing to:
Complaint
5
1. Forever enjoin defendant, his agents, successors,
employees, attorneys, and those acting in concert with him
and at his direction from continuing or maintaining any
policy, practice, custom or usage of denying, abridging,
segregating, withholding, conditioning, limiting, or other
wise interfering with plaintiff and others of his race in
the admission to use of, and enjoyment of the goods, ser
vices, facilties, privileges, advantages, accommodations,
etc., of the Lake Nixon Club on the basis of race or color
as contrary to the Fourteenth Amendment to the Consti
tution of the United States, the Commerce Clause, Article
I, §8, Clause 3 of the Constitution of the United States,
Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42
U.S.C. §2000a et seq., and 42 U.S.C. §1981.
2. Allow plaintiffs their costs herein, reasonable at
torney fees and such other, additional, or alternative re
lief as may appear to the Court to be equitable and just.
Respectfully submitted,
John W. Walker
1304-B Wright Avenue
Little Rock, Arkansas 72206
Jack Greenberg
Michael Meltsner
10 Columbus Circle
New York, New York 10019
Complaint
6
Comes the Defendant herein, Enell Paul, Jr., and in
answer to the Complaint filed herein, states:
(1) The Defendant admits the jurisdiction of this
Court but denies that Plaintiff has been denied any Con
stitutional right by this Defendant.
(2) Admits the nature of this action.
(3) Admits the allegations of Paragraph III of Com
plaint.
(4) Admits that he is one of the owners of the Lake
Nixon Club. Denies that the Lake Nixon Club is a place
of public accommodation within the meaning of Title 42
U.S.C. 2000(a) et seq. Denies the Lake Nixon serves or
offers to serve interstate travelers within the meaning of
the laws of the United States. Denies that a substantial
portion of the food and other items which it serves and
uses moves in interstate commerce. Denies that its opera
tions affect travel, trade, commerce, transportation or
communication between and through the several States
and the District of Columbia within the meaning of Title
42 U.S.C. 2000(a) et seq.
(5) The Defendant admits the allegation in Paragraph
V o f the Complaint.
(6) Defendant denies that the Lake Nixon Club is oper
ated as a club solely for the purpose of being able to exclude
Negroes. Denies that any white person may be admitted to
the use and enjoyment of the Club by paying the entry fee.
(7) Defendant denies that part of Paragraph V II of the
Complaint which alleges that Plaintiff will be injured in
Answer
7
any manner by being denied admission to Defendant’s
swimming pool.
(8) Farther answering, Defendant states that he oper
ates Lake Nixon Club as a place to swim, that he has a
large amount of money, invested in the facility, and 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. The value of his property will be destroyed
and he will be deprived of his rights under thei Fourteenth
Amendment to the Constitution of the United States.
Wherefore, Defendant prays that Plaintiff’s Petition for
an injunction be denied;-for his costs herein and for all
other proper relief.
Answer
8
To: Mr. Sam Bobinson
115 East Capitol Street
Little Bock, Arkansas
Plaintiffs request that the defendant, Euell Paul, Jr.,
answer under oath in accordance with Buie 33 of the Fed
eral Buies of Civil Procedure the following Interrogatories:
1. List the kinds of licenses which you have obtained
relative to the operation of the Lake Nixon Club.
2. Where have you advertised during the last twelve
months? Give the dates, places and content of such
advertisements.
3. State whether any interstate travelers have become
members of the Lake Nixon Club or otherwise used
the facilities of the Lake Nixon Club.
4. List the names and addresses of the suppliers who
supply the goods and products which are sold at Lake
Nixon Club.
5. Set out the amount spent by Lake Nixon Club for
food purchases and other supplies during the period
September 1, 1965, and September 1, 1966.
6. State whether or not either of the following items is
served or sold at the Lake Nixon Club: (a) coffee,
(b) tea, (c) beef (hamburgers, etc.), (d) cigars, (e)
chewing gum, (f) sugar, (g) beer, (h) soft drinks.
7. What was the annual gross income of the Lake Nixon
Club for each of the last two years? (Please provide
a profit and loss statement as appendix to this
answer.) v
Interrogatories
9
8. List the names of the insurance companies which in
sure Lake Nixon Club and set out the types of cover
age provided for each.
9. List the names and addresses of the financial institu
tions with whom Lake Nixon Club does business?
10. Has Lake Nixon Club obtained any loans from any
financial institution or individual within the last two
years? If answer is affirmative, state the name of
such institution or individual.
11. State the name and address of the owner of the real
property under the management of Lake Nixon Club.
12. State whether the property specified in Interrogatory
11 is under the control of Lake Nixon Club pursuant
to a lease or rental agreement. I f answer is affirma
tive, attach a copy of such agreement to this interroga
tory. I f answer is negative set out in detail the ar
rangement between Lake Nixon Club and the owner of
said property and specify the date made.
13. Attach a copy of the Articles of Incorporation and
by-laws of the Lake Nixon Club to this interrogatory.
14. List for each officer of the Lake Nixon Club the follow
ing: names, office held, date elected and address.
15. Set out the dates of the meetings, regular or special,
held by defendant, the number of persons present at
each and the names of same.
16. List the criteria for membership in the Lake Nixon
Club.
17. List the criteria for non-membership use of Lake
Nixon Club.
Interrogatories
10
18. State whether prior to July 2, 1964, Lake Nixon was
operated as a racially segregated facility.
19. State whether membership cards in the Lake Nixon
Club are offered and issued to white persons who seek
to use Lake Nixon if those persons pay the member
ship fee.
20. State the amount of the membership fee in the Lake
Nixon Club and also the period of time such fee en
titles members to club privileges.
21. State whether membership cards in the Lake Nixon
Club are offered and issued to Negro persons who
seek to use the Lake Nixon Chib if those persons pay
the membership fee.
22. State whether the Lake Nixon Club has a committee
responsible for screening applicants for membership.
I f so, state the name of such committee, the names, ad
dresses and telephone numbers of present committee
members, the dates of their meetings during 1966,
their responsibilities, the number and names of per
sons added by the committee to the membership rolls
during 1966 and the race of such persons, the number
of such persons rejected by said committee during
1965 and the race of such persons.
23. State whether white persons seeking admission thereto
were routinely admitted (conditionally or otherwise)
to the Lake Nixon Club upon payment of the initial
fee of membership plus other admission costs.
24. State whether Negro persons seeking admission there
to were routinely denied (conditionally or otherwise)
admission to and/or membership in the Lake Nixon
Club.
Interrogatories
11
25. State whether plaintiffs attempted to nse the facili
ties of Lake Nixon Club during July, 1966. I f so, state
whether they were offered membership cards and
otherwise explain in detail the response given to plain
tiffs by you or your employee at aforesaid time.
26. State what constitutes membership in Lake Nixon
Club that is “filled up” or full.
27. State whether John L. Parke is a member of Lake
Nixon Club? Robert Davis? John Denvir?
John Lewis?
Please take notice that answers to the foregoing Inter
rogatories should be served upon plaintiff’s counsel within
fifteen days from this date.
Interrogatories
12
To: Mr. John W. Walker
1304-B Wright Avenue
Little Bock, Arkansas
Comes Euell Paul, Jr., and for his Answers to Plaintiffs’
Interrogatories, states:
Interrogatory No. 1. List the kinds of licenses which
you have obtained relative to the operation of the Lake
Nixon Club.
Answer : None.
Interrogatory No. 2. Where have you advertised during
the last twelve months? Give the dates, places and content
of such advertisements.
Answer: KALO Badio, Friday Night Beach Party, ad
vertised Wednesday, Thursday and Friday from last day
of May through September 7th.
Little Bock Today (Monthly Magazine) one time in May.
Little Bock Air Force Base (Monthly Paper) one time
in June.
Interrogatory No. 3. State whether any interstate travel
ers have become members of the Lake Nixon Club or other
wise used the facilities of the Lake Nixon Club.
Answer: Not that I know of.
Interrogatory No. 4. List the names and addresses of
the suppliers who supply the goods and products which are
sold at Lake Nixon Club.
Answer : K. Brown Packing Company, Vogel’s, Inc.,
Muswick Beverages, Bordon’s of Arkansas, Wonder Bakery,
Frito-Lay, and Coca Cola Bottling Company.
Answers to Interrogatories
13
Interrogatory No. 5. Set out the amount spent by Lake
Nixon Club for food purchases and other supplies during
the period September 1, 1965, and September 1, 1966.
Answer: $5,550.87.
Interrogatory No. 6. State whether or not either of the
following items is served or sold at the Lake Nixon Club:
(a) coffee, (b) tea, (c) beef (Hamburger, etc.), (d) cigars,
(e) chewing gum, (f) sugar, (g) beer, (h) soft drinks.
Answer: We do not sell or serve coffee, tea, beef (as
such), cigars, chewing gum, sugar or beer. We do sell ham
burgers and soft drinks.
Interrogatory No. 7. What was the annual gross income
of the Lake Nixon Club for each of the last two years?
(Please provide a profit and loss statement as appendix to
this answer.)
Answer: 1965 Gross Income $41,170.00, Operating Ex
penses and Depreciation $26,048.72; 1966 Gross Income
$46,326.00, Operating Expenses and Depreciation $28,434.00.
This indicates the profit and loss.
Interrogatory No. 8. List the names of the insurance
companies which insure Lake Nixon Club and set out the
types of coverage provided for each.
Answer: Fireman’s Fund Insurance Company: Bodily
injury, property damage, workmen’s compensation, prod
ucts.
Interrogatory No. 9. List the names and addresses of
the financial institutions with whom Lake Nixon Club does
business?
Answer : Benton State Bank, Benton, Arkansas and First
National Bank, Little Rock, Arkansas.
Answers to Interrogatories
14
Interrogatory No. 10. Has Lake Nixon Club obtained
any loans from any financial institution or individual within
the last two years? If answer is affirmative, state the name
of such institution or individual.
Answer: No loans have been obtained.
Interrogatory No. 11. State the name and address o f the
owner of the real property under the management of Lake
Nixon Club.
Answer: My wife and I own the property and live there
at Lake Nixon.
Interrogatory No. 12. State whether the property speci
fied in Interrogatory 11 is under the control of Lake Nixon
Club pursuant to a lease or rental agreement. I f answer is
affirmative, attach a copy of such agreement to this inter
rogatory. If answer is negative set out in detail the ar
rangement between Lake Nixon Club and the owner of said
property and specify the date made.
Answer: Lake Nixon Club is owned by my wife and I.
No other arrangement.
Interrogatory No. 13. Attach a copy of the Articles of
Incorporation and by-laws of the Lake Nixon Club to this
interrogatory.
Answer: It is not incorporated.
Interrogatory No. 14. List for each officer of the Lake
Nixon Club the following: name, office held, date elected
and address.
Answer: There are no officers.
Interrogatory No. 15. Set out the dates of the meetings,
regular or special, held by defendant, the number of per
sons present at each and the names of same.
Answer: There have been no meetings.
Answers to Interrogatories
15
Interrogatory No. 16. List the criteria for membership
in the Lake Nixon Club.
Answer: My wife and I exercise our own judgment and
refuse those we do not want.
Interrogatory No. 17. List the criteria for non-member
ship use of Lake Nixon Club.
Answer: There is no non-membership use of the facilities.
Interrogatory No. 18. State whether prior to July 2,
1964, Lake Nixon was operated as a racially segregated
facility.
Answer: Yes.
Interrogatory No. 19. State whether membership cards
in the Lake Nixon Club are offered and issued to white
persons who seek to use Lake Nixon if those persons pay
the membership fee.
Answer: In most cases.
Interrogatory No. 20. State the amount of the member
ship fee in the Lake Nixon Club and also the period of time
such fee entitles members to club privileges.
Answer: Twenty-five cents for one season.
Interrogatory No. 21. State whether membership cards
in the Lake Nixon Club are offered and issued to Negro
persons who seek to use the Lake Nixon Club if those per
sons pay the membership fee.
Answer : No.
Interrogatory No. 22. State whether the Lake Nixon
Club has a committee responsible for screening applicants
for membership. I f so, state the name of such committee,
for names, addresses and telephone numbers of present
committee members, the dates of their meetings during 1966,
their responsibilities, the number and names of persons
Answers to Interrogatories
16
added by the committee to the membership rolls during
1966 and the race of such persons, the number of such per
sons rejected by said committee during 1965 and the race
of such persons.
Answer: There is no committee.
Interrogatory No. 23. State whether white persons seek
ing admission thereto were routinely admitted (condition
ally or otherwise) to the Lake Nixon Club upon payment of
the initial fee of membership plus other admission costs.
Answer: Yes.
Interrogatory No. 24. State whether Negro persons seek
ing admission thereto were routinely denied (conditionally
or otherwise) admission and/or membership in the Lake
Nixon Club.
Answer : I cannot say that we refuse Negroes admission
to the swimming pool as a routine matter because only two
or three Negroes, I forget which, ever sought admission to
the pool and that was in the summer of 1966. 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.
Interrogatory No. 25. State whether plaintiffs attempted
to use the facilities of Lake Nixon Club during July, 1966.
If so, state whether they were offered membership cards and
otherwise explain in detail the response given to plaintiffs
by you or your employee at aforesaid time.
Answer: We do not know the plaintiffs, but we did refuse
admission to two or three Negroes. We told them the mem
bership was closed.
Interrogatory No. 26: State what constitutes member
ship in Lake Nixon Club that is “filled up” or full.
Answers to Interrogatories
17
Answer: It has never been “ Filled up” or full.
Interrogatory No. 27. State whether John L. Parke is a
member of Lake Nixon Club! Robert Davis! John
Denvir? John Lewis?
Answer: I do not know whether these persons are
members.
Signed: Euell Paul, Jr.
Answers to Interrogatories
On this day personally appeared before me, Euell Paul,
Jr., and after first being duly sworn, stated that the An
swers to the foregoing Interrogatories are true.
Linda J. Grass
Notary Public
My Commission Expires:
Sept. 20, 1970
Be it remembered, that the above entitled and numbered
causes came on to be heard before Honorable J. Smith
Henley, United States District Judge, at Little Rock,
Arkansas, on December 7, 1966, wherein the following pro
ceedings were had, to w it:
Appearances:
In LR-66-C-149
For Plaintiffs: Mr. John W. Walker, Attorney at Law,
1304-B Wright Avenue,
Little Rock, Arkansas
For Defendant: Mr. Sam Robinson, Attorney at Law,
Adkins Building,
Little Rock, Arkansas
18
The Court: Gentlemen, we have this morning 1966 Cases
C-149 and 150, set for trial at the same time, I don’t know
that they’re necessarily consolidated, but many of the ques
tions, I assume, may he common to both.
Gentlemen, for the Plaintiff, are you ready to proceed in
these cases!
Mr. Walker: W e’re ready, Your Honor.
The Court: And for the defendants, Judge Eobinson and
Mr. Carroll!
Judge Robinson: The defendant Paul is ready, may it
please the Court.
Mr. Carroll: The defendant Culberson and Spring Lake,
Inc., are ready, Your Honor.
The Court: Very well.
Mr. Walker, you may proceed. I guess you’re the plaintiff
in both cases and have the burden.
Mr. Walker: I don’t think an opening statement is neces
sary, Your Honor,
The Court: You may assume that the Court has read the
files, and including the answers to the interrogatories that
have been filed, and is reasonably familiar with the issues
and that you may forego opening statements, if you wish.
Mr. Walker: Thank you.
I would like to call Mr. Euell Paul.
The Court: Mr. Paul in Court? Come around.
Proceedings
19
E u ell P a u l , called as a witness by and on behalf of
Plaintiff, being duly sworn, was examined and testified as
follows:
Direct Examination
Questions by Mr. W alker:
Q. Will you state your name, your address and your
occupation, please?
A. Euell Paul, Jr., Route 1, Box 77-A, engaged in recrea
tion.
Q. I asked you to bring your insurance policy with you.
Do you have that?
A. Yes, sir.
Q. Mr.—
The Court: Let’s see, Mr. Paul is the defendant in 149,
is that correct?
Mr. Walker: That’s right, Your Honor.
(Documents passed to counsel.)
Q. Mr. Paul, I hand you two insurance policies, which
are made out in your name and your wife’s name, I presume,
Euell Paul, Jr., Oneta Paul, d /b /a , doing business as Lake
Nixon, and ask if you’re familiar with them?
A. Yes, sir.
Q. These policies are written by Firemen’s Fund In
surance Company, is that correct?
A. Yes, sir.
Q. Did you take those policies out yourself?
A. Yes, sir.
Q. Now, would you state to the Court whether Lake
Nixon is a private club?
A. Yes, sir.
Q. It is a private club; what are the purposes of the
club?
Proceedings
20
Proceedings
A. Swimming.
Q. What else!
A. Just general relaxation.
Q. Any other purpose!
A. No, sir.
Q. Do you have incorporation papers!
A. No.
Q. Yours is an unincorporated club!
A. Yes, sir.
Q. What are the membership criteria!
A. You mean the amount!
Q. No; what does it take to become a member of your
club!
A. The approval of my wife and I.
Q. The approval of your wife and yourself!
A. Yes.
Q. Anybody else!
A. No, sir.
Q. Now, what criteria do you have for deciding whether
to include someone!
The Court: Mr. Walker, I ’m reluctant to interrupt you.
Haven’t you covered the material you’re now covering in
your interrogatories and the—
Mr. W alker: To a limited extent, Your Honor.
The Court: Go ahead.
The Witness: Would you repeat the question, please!
Mr. Walker: Yes.
Q. What considerations do your wife and yourself use
in determining whether to admit someone to the club!
A. We judge on the basis of how we feel they will get
along with the—together.
Q. Together; isn’t it true you admit any white person!
A. Pardon!
Q. Isn’t it true you admit any white person to member
ship—
A. No, sir.
Q. Just as long as that person is well mannered?
A. Not in all cases, no.
Q. As long as he is well mannered and dressed properly
you will admit him, don’t you?
A. In some cases.
Q. In almost all cases?
A. In a large majority.
Q. How many members do you have ?
A. Well, I do not know.
Q. How frequently does the club meet?
A. Every day.
Q. You mean the members of the club?
A. Periodically.
Q. What periods?
A. Well, mostly on sunny days.
Q. Do you have membership meetings ?
A. No, sir.
Q. Have you ever had a membership meeting?
A. No, sir.
Q. Would you know how to get in touch with the mem
bership if you wanted to ?
A. No.
Q. Does the club—
A. Could I retract that? In one way, notification on the
bulletin there at the club.
Q. Now, do the members of the club have the responsi
bility for naming the employees of the club?
A. No.
Q. That is you and your wife’s exclusive responsibility?
A. Yes.
21
Proceedings
22
Proceedings
Q. Do the members of the club have the responsibility
for fixing your salary?
A. No.
Q. You fix that yourself?
A. Yes, sir.
Q. Do the members of the club have any responsibility
with regard to distribution of the profit that you make?
A. No.
Q. Did you advertise for persons to come and make use
of the facilities during the summer.
A. Members only.
Q. Did you advertise for members?
A. Not that I can remember.
Q. But you do recall—
A. I ’ve written so many that I didn’t keep copies of them,
which I should have, I didn’t know this would happen, and
I didn’t keep copies of them, but to my knowledge as far
as I know all ads were written stated strictly to members
only.
Q. You were not inviting new members to join?
A. Not that I can remember, no.
Q. Why did you advertise then?
A. To let the members know what was taking place.
Q. How many members did you have?
A. I don’t know.
Q. Do you have any way of guessing how many you had
the 1st of May?
A. No, sir.
Q. Would you say that you had a thousand at that time?
A. First of May?
Q. Yes.
A. No, sir, because we weren’t open.
23
Q. Right; but you did advertise then to get members,
didn’t you?
A. No, because most people from, the previous year and
previous years before that renewed membership cards when
we first started.
Q. Have you ever heard any of the advertisements on
KALO or K A A Y ?
A. I run one on K A A Y and the rest on KALO, but I
wasn’t able to hear all of them.
Q. Are you not aware they were inviting people generally
to come out to Lake Nixon?
A. Our opening statement was basically, well, specifically
stated that it was for members only.
Q. For members only?
A. Yes.
Q. But some of the people who came subsequent to May
were not members only?
A. Some of the members brought other people.
Q. Other people came without other members, didn’t
they? Individuals?
A. Yes, that’s right.
Q. Individuals came; did you ever pass out any member
ship cards without having a name set forth on the member
ship card?
A. Not to my knowledge; they were made to sign them
right there.
Q. They were made to sign them right there?
A. Yes, sir.
Q. I show you what purports to be a Lake Nixon mem
bership card, and ask you to identify that?
A. That is mine.
Q. That is yours; is there a name on that?
A. No, sir.
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24
Q. I wonder how could one person obtain one of these
without a name being on it?
A. At the main gate.
Q. At the main gate?
A. Yes.
Q. So that possibly your employees did just distribute
them to some people that they wanted to distribute them to,
is that right?
A. I hope not; but far as I know they didn’t distribute
them.
Mr. Walker: I ’ll mark this as Plaintiff’s Exhibit No. for
identifications, and I would like to have it introduced into
the record.
(Thereupon, the document above referred to was marked
as Plaintiff’s Exhibit No. 1, for identification.)
The Court: Any objection, Gentlemen?
Judge Robinson: No, sir.
The Court: Let it be received.
(Thereupon, the document heretofore marked as Plain
tiff’s Exhibit No. 1, for identification, was received in
evidence.)
Q. Now, do you know whether a man by the name of
John Denver ever applied for membership?
A. No, sir.
Q. You don’t know; of John Lewis? I show you two
membership cards, the same as those, but these are signed,
and ask are these yours?
A. Yes, they sure are.
Mr. Walker: I would like to have them marked Plain
tiff’s Exhibits 2-A and B.
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25
(Thereupon, the documents above referred to were
marked as Plaintiff’s Exhibits 2-A and B, for identification.)
The Court: Which one is 2-A?
Mr. Walker: Denver, and Lewis is 2-B.
The Court: Let them be received.
(Thereupon, the documents heretofore marked as Plain
tiff’s Exhibits 2-A and B, for identification, were received
in evidence.)
Q. Now, are you aware of the fact that you have a listing
in the phone directory?
A. Yes.
Q. Are you also aware of the fact that there is a category
in the yellow pages called “Private Clubs” ?
A. Yes, I do.
Q. Are you aware of the fact that the Lake Nixon Club
is not listed in that category in the yellow pages?
A. I am aware of that, due to a mistake.
Q. But it is not there; now, were you present when the
plaintiffs sought to use the facilities of Lake Nixon?
A. No, sir.
Q. You were not; your wife was on duty at that time?
A. Yes.
Q. Now, to the best of your knowledge were the plaintiffs
well mannered?
Judge Robinson: I believe he said he was not present at
that time.
Mr. Walker: He has obviously had some conversation
with his wife about that, and rather than have her testify—
we can if you want to.
Q. Were they well mannered to the best of your knowl
edge?
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26
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A. Far as I know.
Q. Did they nse any boisterous language or anything like
that?
A. I don’t know, I didn’t go into any detail, and I wasn’t
there and I don’t know.
Q. What did your wife tell them to the best of your
knowledge?
A. That they would not be accepted.
Q. That they would not be accepted?
A. That the membership was full.
Q. Was the membership in fact full?
A. It has never been full.
Q. It has never been full?
A. It was full at that particular time of day.
Q. I f these persons had been white what reason would
you have had to reject them?
The Court: Mr. Walker, I wonder if that really is a
proper question. Nobody knows what reason he might have
had for rejecting them if they had been white. They could
have been drunk or disorderly or some other condition that
would have caused him to reject them. Really what you’re
getting at, I think, is simply were these people rejected be
cause they were Negroes. Isn’t that what you want to know?
Mr. Walker: Tour Honor, I didn’t put it that way but
that’s really what I wanted.
The Court: Let’s get down to i t ; let’s call a spade a spade
and get right down to it. Is that why they were refused?
The Witness: Yes, sir.
The Court: All right.
Mr. Walker: Thank you, Tour Honor.
Q. Now, isn’t it true that from time to time non-members
did use the facilities of Lake Nixon?
A. Really not to my knowledge. We kept a close eye on it.
27
Q. Didn’t you state in your answer to the interrogatories
that from time to time—well, didn’t you state in your in
terrogatories, your answers, that from time to time persons
other than members who were members of parties or groups
were permitted to use the facilities?
A. Not unless they had a membership card.
Q. Did you give them a membership card for twenty
five cents per person?
A. If they were on the premises and we knew about
it.
Q. They had a membership card?
A. They had to have it. In fact, —
Q. What was the amount of membership?
A. Twenty five cents.
Q. Was this payable once per year?
A. Yes.
Q. Was there also an admission fee?
A. Yes.
Q. What was that?
A. Depending on what they wanted to do.
Q. Lets put it this way: The first time one would
come to the Lake Nixon Club he would pay a twenty five
cents membership fee?
A. I f he was accepted.
Q. If he was accepted?
A. Yes.
Q. And then he would have to pay an admission into
the park, into your amusement area, isn’t that true ?
A. Depending on what he wanted to do. Not nec
essarily. They could sit and do nothing and it didn’t cost
them anything.
Q. I see; all right, spell out what the cost were for
doing a particular thing?
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28
A. The swimming was fifty cents, if they were going
to swim; and the boat rides, were twenty five cents per
person; the miniature golf was. thirty five cents.
Q. What about the dances?
A. There was a dollar charge.
Q. One dollar charge for the dances; all right, now,
you have a number of boats there; will you describe those
boats?
A. They are just aluminum paddle boats.
Q. They are aluminum paddle boats?
A. Seat three or four people.
Q. I see, how many do you have?
A. Fifteen.
Q. Fifteen; what was the cost of each one, average
cost?
A. We didn’t buy them.
Q. You didn’t buy them; are you renting’ them?
A. We lease them.
Q. What is. the lease cost?
A. Based on the amounts that we do on them.
Q. So there’s a percentage?
A. Yes, sir.
Q. What is that percentage?
A. I would have to look at the books.
Q. Would you say twenty five percent of what ever
gross profit you receive?
A. I couldn’t really say; my wife would knowr; it’s in
the books..
Q. Do you have something that might be described
as hydroplanes?
A. No.
Q. Do you have any other kind of boats there?
A. W e have what we call a yak.
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29
Q. A yak; what’s a yak?
A. It’s 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.
Q. Now, do you have any record player or juke boxes
or anything like that out there?
A. Yes, sir.
Q. How many do you have?
A. Two.
Q. Two; the members, of course, entertain themselves
with the juke boxes?
A. Yes.
Q. Now, these—I mean persons who put their nickels
and dimes in any time during the day and get music and
dance or whatever they want to do, is that right?
A. Bight.
Q. Where did you get those juke boxes, a local amuse
ment company?
A. Yes.
Q. What is the name of it?
A. I believe my wife knows; I can’t remember the
name.
Q. Do you know where those juke boxes happen to
have been made ?
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30
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A. No, sir, I don’t.
Q. You have a place to dance there too, don’t you!
A. Yes.
Q. And you customarily have dances on Friday nights
and Saturday nights !
A. Mostly on Friday nights.; very seldom on Saturday
night; depending, if the weather is bad on Friday we
switch to Saturday.
Q. Every week you’ve had a dance, if the weather—
A. Permits.
Q. Did you also have a concession stand there?
A. Yes.
Q. What concessions did you sell; what did you sell?
A. Basically hamburgers, hot dogs, and so on.
Q. Could you tell me how much money you spent for
concessions during the 1965-66 year—well, during the sum
mer of 1965?
A. I believe it is all in the records there, in the books.
Q. May I see them?
A. You sure can.
The Court: Isn’t that in Interrogatory No. 5?
Mr. Walker: It is not in there, Your Honor. The
profit and loss — of course, the profit was; it does not
set out what the expenses are.
The Court: Interrogatory No. 5 sets out the amount
spent by Lake Nixon for food purchases and other sup
plies during the period September 1, ’65, and September
1, ’66.
Mr. Walker: Eight. My question is slightly different,
Your Honor. I ’m asking about concessions here, just the
concession items. The supplies, perhaps, including a num
ber of other things, items to clean the boats, things to keep
up th e-----—
31
The Court: Well, if you have that readily available,
Judge Robinson, the books there-------
The Witness: I imagine I can give you approximately.
Q. That’s all I want.
A. Just approximately?
Q. Just approximately?
A. You mean what we spent for — —
Q. For concessions?
A. For the concession stand?
Q. Yes.
The Court: In 1965?
The Witness: I believe it ran some where pretty close
together both years, usually around from five to six
thousand.
Q. Five to six thousand dollars; now, will you state
the percentage of income you received, the amount of
your sales from the concessions?
A. I would say fifteen hundred to two thousand.
Q. Fifteen hundred to two thousand dollars profit, that’s
net profit?
A. I would say yes.
Q. So your gross sales would be considerably more than
seven thousand dollars, isn’t that true?
A. Yes, it is.
Q. Now, you did sell quite a few hamburgers, didn’t
you?
A. That is true.
Q. And that is the item probably that you sold most
of, isn’t it, among sandwiches?
A. I don’t know, because the snack bar, we didn’t run
the snack bar.
Q. You didn’t?
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32
A. My. sister-in-law, she took it over; I didn’t have
time t o -------
Q. Did you lease it to your sister-in-law?
A. Not under a written lease, just an agreement, mutual
agreement.
Q. But you shared the profits?
A. We shared with her.
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 a just a commodity to have there for the people if they
wanted it; I mean we were not in the food business —
there was no restaurant —■ it was just a necessity.
Q. I f you do have your records broken down I would
like to see those.
A. I sure do.
Mr. Walker: I will go on while you look for that,
Mr. Robinson.
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 Jacksonville?
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 a l l -------
Q. You had a lot of different bands?
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33
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A. Yes.
Q. How can. you be sure that they just played in Little
Rock?
A. Because they were members- there and were fre
quently out there; they mostly worked in town and this
was a hobby; they were not professionals.
Q. You really don’t know whether they did or not,
do you?
A. I f they left the state I didn’t know about it.
Q. All right, how much income did you obtain from
admission?
A. To what particular-------
Q. Just generally admissions to what ever you had?
A. You mean what the gross was off the whole business?
Q. No, no, just your admissions; do you have your
records broken down into receipts for admissions and
membership from concession sales?
A. Everything was completely broken down and itemized.
Mr. Walker: Have you found that?
The Court: Let me suggest we might save a little time
if we would take a few minutes recess and let you all
go over this and point to Mr. Walker exactly what he
wants, and then when we resume we’ll put into the record
only that portion that is desired and we won’t encumber
it with a good bit of material that no one wants.
Mr. Walker: Your Honor, I think that we can perhaps
— I ’m about finished with the witness — and we could
perhaps stipulate with Mr. Robinson later.
The Court: Could you undertake to write it out on
a piece of paper then and file it?
Mr. Robinson: Yes, Your Honor.
The Court: All right, go right ahead then and inter
rogate the witness on matters other than these figures and
34
at an appropriate time you make an abstract of them and
file them.
Q. Did you also have milk sales'?
A. What?
Q. Milk sales in your concessions?
A. We sold milk, yes.
Q. You did sell milk?
A. Yes.
Q. Did you sell pints, half pints?
A. Little half pints.
Q. Little half pints; that was with which dairy?
A. Borden’s.
Q. Borden’s ; how many cartons do you think you would
use in the course of a week?
A. I don’t know.
Q. You also sold a lot of soft drinks, isn’t that true?
A. Yes, sir.
Q. Now, we have propounded to you certain interroga
tories which I would like to have introduced into the record
at this time as Plaintiff’s Exhibit 3.
The Court: I don’t believe we’ll give them an exhibit num
ber, Mr. Walker, but they will be considered as part of the
hearing record.
Mr. Walker : That’s perfectly satisfactory.
The Court: They are already in the file; they were filed
on November 3rd.
Mr. Walker: I have no more questions of this witness,
Your Honor.
Mr. Robinson: I don’t believe I have any questions in
the nature of cross-examination. I think -—- —
The Court: If you prefer, it might be more orderly, you
can defer what would be your direct examination until you
are presenting your case.
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35
Mr. Robinson: All right.
The Court: You may stand aside.
(Above witness temporarily excused.)
# * # # #
E xjell P a u l , J e ., being recalled was examined and testi
fied as follows:
Cross Examination Questions by Mr. Robinson:
The Court: You may testify under the same oath you
took earlier, Mr. Paul.
Q. Mr. Paul, you were asked about insurance policies
that you had protecting your business out there; did you
buy this insurance from the Gulley Insurance Agency here
in the City of Little Rock?
A. Yes, sir.
Mr. Robinson: That is all.
Mr. Walker: No more questions.
The Court: That’s all, Mr. Paul.
(Above witness temporarily excused.)
Mr. Walker: Your Honor, we would like to offer by
stipulation the contents of certain radio broadcasts that
appeared on Radio Station KALO in Little Rock and Radio
Station K A A Y ; and we would like to have those identified
as plaintiff’s and defendant’s Exhibit 1; there will be three
items; and we would like to admit them after the close of
the case today so we can give the original copies back to
the radio stations.
Proceedings
36
(Thereupon, the documents above referred to were
marked plaintiff’s and defendant’s Exhibit 1, for identi
fication. )
The Court: You have some arrangements whereby you’ll
copy the portions of their files that you wish to use and
submit them after the Court adjourns1?
Mr. Walker: Yes, your Honor.
The Court: All right.
(Thereupon, the documents heretofore marked Plaintiff’s
& Defendant’s Exhibits 1, for identification, were received
in evidence.)
The Court: Now, do you need these radio people for
anything else? I notice there seem to be several of them
in the Courtroom.
Mr. Walker: Your Honor, I would like to have a photo
copy made and we will do that during the recess.
The Court: Let’s take care of that right now and get
them away from here, not that they are required to leave,
but I imagine they want to go. Court will be in recess ten
minutes.
(Short recess.)
The Court: Are you ready, Gentlemen?
Mr. Walker : Your Honor, the originals have been handed
to the Clerk’s office so duplications can be made and they
will be entered into the record for the parties.
The Court: All right.
Mr. Walker: With regard to Lake Nixon we are now
prepared to introduce one. We need not put the others
in because they are all more or less similar.
The Court: All right.
Mr. W alker: I would like to read it to the Court. Judge
Robinson advises it might be helpful to the Court.
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The Court: I f you like, just hand it to me and I will
read it myself.
Mr. Walker: All right, Your Honor.
(Document passed to the Court.)
The Court: All right, now, what else do you have with
respect to Lake Nixon?
Mr. Walker: Mrs. Doris Daniel.
M bs. D oris D an ie l ,
called as a witness by and on behalf of Plaintiff, being
duly sworn, was examined and testified as follows:
Direct Examination
Questions by Mr. Walker:
Q. Will you state your name, your address and your
occupation, please?
A. I am Mrs. Doris Daniel, 1204 Ringo, I am employed
as secretary for Attorney Christopher C. Mercer, Jr.
Q. What is your race?
A. I am a Negro.
Q. Will you state to the Court what happened when
you went out to the Lake Nixon Club on or about July 10,
1966?
A. Well, we approached the window where we saw the
people were being admitted, and the young man, we hap
pened to be at a window and a young man said may I
help you ; and we said we would like to come in ; and this
man said we would have to wait on the lady in the next
room ; and we told her that we would like to come in and
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
38
asked to get application to apply for membership and she
said I ’m sorry, but we’re filled up and not accepting any
more memberships; and we said thank you, and left.
Mr. Walker: No more questions.
Cross Examination
Q. Where do you live?
A. 1204 Eingo.
Q. Here in Little Eock?
A. Yes, sir.
Q. H owt long have you lived in Little Eock?
A. About seven years.
Q. Seven years?
A. Yes, sir.
Q. Will you speak a little louder, please; I ’m kinda-hard
of hearing? Where is Lake Nixon?
A. I would estimate about ten or twelve miles out 12th
street, it might be more than that, or less, I knew it is out
12th street, West.
Q. Out 12th Street?
A. Yes.
Q. Had you ever been there before?
A. Before the day I went out there?
Q. Yes.
A. No.
Q. Why did you go out there?
A. I had heard advertising on the radio and I heard
some people talking about it, and I just went out to look
it over and perhaps participate in some of the activities.
Q. That was just on your own initiative?
A. Yes.
Q, You just decided to go out and did you go out to go
in swimming?
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39
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A. Sir?
Q. Did you go out to go in swimming?
A. Perhaps to swim, but I had heard about the miniature
golf and I like to play miniature golf, and we just wanted
to look it over.
Q. You hadn’t made any prearrangements with anybody
about going out there?
A. No.
Q. You just thought it up yourself?
A. Well, Boselyn and I decided to go out there.
Q. Your girl friend and yourself?
A. Yes.
Q. Just the two of you went out there?
A. No, we were accompanied by a young man.
Q. Whose car did you go in?
A. We were in his ear.
Q. Had he ever been out there before?
A. Not as I know of.
Q. Did you have a swim suit?
A. I had mine, yes.
Q. You had a swim suit with you?
A. Yes, sir.
Q. I ’m sorry, but I didn’t get your address?
A. 1204 Bingo.
Q. 1204 Bingo?
A. Yes.
Q. Here in the City of Little Bock; do you go in swim
ming often?
A. Not very often.
Q. When is the last time you went swimming?
A. I think it was July 4th, I think it was a holiday.
Mr. Bobinson: That is all.
Mr. Walker: No more questions.
40
The Court: You may stand aside.
(Above witness temporarily excused.)
Mr. Walker: That is all we have, Your Honor.
The Court: Judge Robinson, do you have any rebuttal.
Mr. Robinson: Your Honor, I move for a directed ver
dict for the defendant on the evidence adduced here.
The Court: What you’re suggesting then is that the
Plaintiff has not made a case which would entitle, or the
plaintiffs have not made cases which would entitle them
to relief. This may or may not be true; I ’m not prepared
to pass on it at the moment, so I believe I ’ll reserve rul
ing on your motion for judgment for the defendant and
the case will proceed. I f you have any evidence to offer
the Court will hear it, If you choose to rest with the plain
tiff, of course, the case will be submitted on the record as
it now stands.
Mr. Robinson: May it please the Court, may I have a
few minutes to consider that?
The Court: You may.
(Brief conference between counsel and defendant,)
Mr. W alker: I want to call to the Court’s attention that
there are certain stipulations that we have prepared to
present into the record subsequent to—
The Court: I understand that, of course, about these
figures you are going to supply. You’re going to supply
certain figures and then you’ll still have to furnish physi
cally certain of the ad copy. Subject to the receipt of those
the plaintiff’s case is closed.
Mr. Gilbert : I think you ought to let the record show
that without objection Mrs. Euell Paul, Jr., is a party
defendant in 149.
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41
The Reporter: I have that already, Your Honor.
The Court: Very well.
Judge Robinson: Call Mrs. Oneta Paul.
M bs. O n eta I bene P a u l ,
called as a witness by and on behalf of defendant, being
duly sworn, was examined and testified as follows:
Direct Examination
Questions by Judge Robinson:
Q. State your name to the Court?
A. Oneta Irene Paul.
Q. Where do you live, Mrs. Paul?
A. Lake Nixon, Route 1, Box 77-A, Little Rock.
Q. Is that the place called Lake Nixon?
A. Yes, it is.
Q. Who owns that property, Mrs. Paul?
A. My husband and I.
Q. When did you acquire that property?
A. September 27th will be four years ago, that will be
’62.
Q. ’62; how much land is involved in that property out
there ?
A. Approximately 232 acres.
Q. Now, is there a lake on the property called Lake
Nixon?
A. Yes, there is.
Q. You and your husband live there close to that?
A. We do.
Q. Yoii have your home there?
A. Yes, we do.
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42
Q. What did you pay for that property!
A. One hundred thousand dollars.
Q. Have you spent anything by way of improvements
since you acquired it!
A. Yes, on the lake.
Q. Now, what do you have out there, Mrs. Paul, by way
of facilities 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 that 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 undesirables.
Q. You made a club out of it for the purpose of keeping
out— as a matter of fact, undesirable white people!
A. Yes, we have.
Q. Do you take advantage of that arrangement that
you have, the club arrangement, to keep out undesirable
white people!
A. I don’t follow you.
Q. To keep undesirable white people from entering the
place!
A. We do, we have.
Q. Then you also use that reason as excluding the Ne
groes.
A. Right.
Q. Mrs. Paul, how many people do you have out there
during the summer; when did you open the facility!
A. The facility is opened between the 5th, the middle
or last of May. It is all based on the weather and the rain
and—
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43
Q. How many people would you say you have out there?
A. I couldn’t give you an exact figure, because we have
so many out there, but I would approximately say around
a hundred thousand people come and go.
Q. Are these pictures of the place out there?
A. Yes.
(Documents passed to opposing counsel.)
Mr. Walker : No objection.
Judge Robinson: We would like to introduce this batch
of pictures as Defendant’s Exhibit 1.
(Thereupon, the documents above referred to were
marked as Defendant’s Exhibit No. 1, for identification.)
The Court: Let them be received as a group. Do you
have an envelope we can put them in, and if you will just
mark the envelope Defendant’s Exhibit 1, and I will put
them all in it.
(Thereupon, the documents heretofore marked as De
fendant’s Exhibit No. 1, for identification, were received
in evidence.)
Q. I believe there has been some evidence introduced
of the ads you had over the radio, were those ads ad
dressed 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.
Q. Do you know the plaintiffs in this case?
A. I ’m afraid not.
Q. You don’t know whether they applied for admission
or not?
A. Well, I don’t recognize them.
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44
Q. You know that two or three Negroes did apply for
admission?
A. Three, yes; the man is the one that asked for mem
bership cards, not the lady.
Q. And you denied them admission?
A. Yes, I did.
Q. You denied them admission because they are Negroes?
A. Yes, I did.
Q. Do you think you could operate that business out
there as an integrated—
A. No, we could not.
Q. And I believe you say that you’ve got over a hundred
thousand dollars invested in it?
A. Yes, now, way over.
Judge Robinson: I believe that’s all.
Cross Examination
Questions by Mr. Walker:
Q. Mrs. Paul, when did you start operating Lake Nixon
as a public facility?
A. As a public facility, what—
Q. Was it in operation during 1964?
A. Yes, it has been operated since we bought it.
Q. When was that?
A. September 27th will be four seasons, will that be ’62?
Q. So you have operated it—
A. Four years, four seasons.
Q. You’ve operated it from ’62 to ’64 just for white
persons,?
A. No; we’ve operated all these years since we’ve had
it just for white people.
Proceedings
45
Q. I see; what I ’m trying to establish, from 1962, at
the time you got it, to 1964 it was not a private club?
A. They did not have to have a membership card, no.
Q. And after 1964 you changed it into a private club?
A. Membership, yes.
Q. Membership only?
A. Yes.
Q. Now, between 1962 and 1964 did you have the right
to exclude anybody you wanted to?
A. We certainly did.
Q. What right do you have now?
A. It is our property, we live there.
Q. "What right do you have to exclude anybody now
that you did not have in 1963 or ’62, when you bought it?
A. We had a right then; we figured it was our property,
we pay the tax on it.
Q. And you still figure that, don’t you?
A. Yes, we live there.
Mr. Walker: No more questions.
Eedirect Examination
Questions by Judge Eobinson:
Q. We have a map of Pulaski County, does that red
mark indicate the location of Lake Nixon?
A. Yes, it does.
Judge Eobinson: By stipulation, may it please the
Court, I would like to introduce this map in evidence.
(Thereupon, the document above referred to was marked
as Defendant’s Exhibit No. 2, for identification.)
The Court: Allright; that will be defendant’s Exhibit
No. 2?
Proceedings
46
Judge Robinson: Defendant’s Exhibit 2. Would the
Court like to see it?
The Court: Yes, I would like to see it.
(Document passed to the Court.)
The Court: The little red mark there indicates the loca
tion.
(Thereupon, the document heretofore marked as Defen
dant’s Exhibit No. 2, for identification, was received in
evidence.)
Judge Robinson: I believe that is, all.
The Court: Anything further ?
Mr. Walker: No, Your Honor.
The Court: You may stand aside.
(Above witness temporarily excused.)
Judge Robinson: That is the Defendant Paul’s ease,
Your Honor.
The Court: Any rebuttal?
Mr. Walker: No, Your Honor.
The Court: Then, your record will be closed in 149
upon receipt of the figures that you Gentlemen have agreed
were to be filed later, and the materials from the radio
stations.
Mr. W alker: May it please the Court, we have intro
duced all that we want.
The Court: You think then one ad is sufficient!
Mr. Walker: Yes, sir, I think it will reflect the time
that they were advertised.
The Court: So we will have then only certain figures
from the books?
Mr. W alker: That’s right, Your Honor.
The Court: Now, Gentlemen, are you ready to go to
No. 150?
Proceedings
47
IN THE UNITED STATES DISTRICT COURT
E astern D istrict of A rkansas
W estern D ivision
Memorandum Opinion
LR-66-C-149
R osalyn K yles and D oris D an ie l ,
Plaintiffs,
v.
E u ell P a u l , J r ., Individually and as Owner Manager
or Operator of the L ake N ixon Clu b ,
Defendant.
LR-66-C-150
R osalyn K yles and D oris D an iel ,,
Plaintiffs,
v.
J. A. C ulberson , Individually and as Owner, Manager
or Operator of S pring L ak e , I n c .,
Defendant.
These two suits in equity, brought under the provisions
of 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.A., §§2000a
and 2000a-l through 2000a,-6, have been consolidated for
trial and have been tried to the Court without a jury.
Federal jurisdiction is not questioned and is established
adequately by reference to section 207 of the Act, 42
U.S.C.A., §2000a-6.
48
Plaintiffs are Negro citizens of Little Bock, 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 o f the stock
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 Bock. 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 be
half 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 1
Memorandum Opinion
1 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.
49
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 “ sup
ported by State action.”
Section 201(b) makes the 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 estab
lishment located within a building which contains not more
than five rooms for rent or hire and which is actually oc
cupied by the proprietor of such establishment as his
residence;
“ (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 en
tertainment; and
“ (4) any establishment (A) (i) which is physically lo
cated 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.”
Memorandum Opinion
50
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
paragraph (3) of subsection (b) of this section, it custom
arily presents films, performances, athletic teams, exhibi
tions, 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, transporta
tion, 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.”
Section 201(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
Memorandum Opinion
51
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 subdivision thereof.”
The exemption invoked by defendants appears in section
201(e) which provides that the provisions of Title II of
the Act do not apply to “a private club or other establish
ment not in fact open to the public, except to the extent
that the facilities of such establishment are made avail
able 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
Eights Act of 1984 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
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 Piekrick 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 cases also
establish that, even though practices on the part of an
individual enterprise have no significant or even measur
able impact on commerce, such practices by such enterprise
Memorandum Opinion
52
are prohibited where they are of a type which Congress
has found affects commerce adversely.
In coming to the latter conclusion the Court in McClung
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 estab
lish, first, that the facilities in question are establishments
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 respective de
fendants to show that they are entitled to the private club
exemption which they invoke.
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 properties
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
Memorandum Opinion
53
business and corporation under the general corporation
laws of Arkansas on April 12 of that year.2 Both estab
lishments are operated for the financial profit of the own
ers 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 essen
tially the same although those at Lake Nixon are consider
ably more extensive than those available at Spring Lake.
Primarily, the recreation offered is of the outdoor type,
such as swimming, boating, picnicking, 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.
In each of the snack bars there is located a mechanical
record player, commonly called a “Juke Box,” which pa
Memorandum Opinion
2 Mr. Culberson did not 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.
54
trons 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 manufac
tured 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 involved.
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.” Although the
bands are compensated for their playing, actually the musi
cians 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 apears that Mr. Culberson is
willing to do just about anything in the future to avoid
coverage if Spring Lake is in fact covered and nonexempt
at this time.
Following the passage of the Act, Mr. and Mrs. Paul
began to refer to their operation as a private club, and
partons have been required, at least during 1965 and 1966,
to purchase “memberships” for the nominal fee of twenty-
Memorandum Opinion
55
live cents a year or per season. These 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 “mem
berships” to the “club” are sold by either Mr. or Mrs. Paul;
at Spring Lake “memberships” are sold by whatever em
ployee or employees happen to be in charge of the opera
tion at the time.
The Court finds that neither facility has any membership
committee; there is no limit on the number of members of
either “club,” 3 no real selectivity is practiced in the selec
tion of members, although at each establishment the man
agement 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 “members.” Subject to a
few more or less accidental exceptions at Spring Lake,
Negroes are not admitted to “membership” in either “ club.”
White applicants for membership are admitted as a matter
of routine unless there is a personal objection to an indi
vidual white person making use of the facilities.
The record reflects that during 1965 and 1966 Lake Nixon
has used the facilities of Eadio Station KALO to adver
tise its weekly dances; the announcements were made on
Wednesday, Thursdays, and Fridays of each tveek from
the last of May through September 7. During the same
period Lake Nixon inserted one advertisement in “Little
Memorandum Opinion
3 When 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 that
there has never been and is not now any limit to the “membership
of the “club” .
56
Rock Today,” a monthly magazine indicating available
attractions in the Little Rock area, and inserted one ad
vertisement in the “Little Rock Air Force Base,” a monthly
newspaper published at the Little Rock Air Force Base at
Jacksonville, Arkansas.
On June 4, and June 30, 1966, Spring Lake advertised
Saturday night dances over Radio Station K A LO ; 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 an
nouncements indicated that there would be diving exhibi
tions during the intermissions, and one of the announce
ments was to the effect that in addition to the diving exhi
bition 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 tele
phoning “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 un
Memorandum Opinion
57
likely that an interstate traveler would break his trip for
the purpose of utilizing either establishment. 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 estab
lishments. The record before the Court does not disclose
where or how the local suppliers obtained the products
which they sold to the establishments. The meat products
sold by defendants may or may not have come from ani
mals 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 prin
cipal 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 with
in the terms of any rational definition of a private club
which might be formulated in the context of an exception
from the coverage of the Act. Both of these establishments
are simply privately owned accommodations 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.
Memorandum Opinion
58
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 defen
dants 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 Nixon
and Spring Lake are “ public accommodations,” but whether
they are public accommodations falling within one or more
of the four categories of establishments covered by the Act.
It is not suggested that either establishment falls within
the first statutory category, and the Court is persuaded
that neither falls within the fourth. In that connection 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 establishments,
one of them covered by the Act, operating from the same
general premises. See e.g. Pinkney v. Meloy, M.D. Fla.,
241 F. Supp. 948. 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 in
volved, and the second category does not cover them. Cf.
Memorandum Opinion
59
Newman v. Piggie Park Enterprises, Inc., D.C., S.C., 256
F. Supp. 941.4
The third category, section 201(b)(3), includes certain
specifically described places of exhibition or entertainment
and also “ any other place of exhibition or entertainment.”
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. Robert
son v. Johnston, E.D. La., 248 F.Supp. 618, 622. In that
case it was pointed out that “ place of entertainment is
not synonymous with “place of enjoyment.” And in addi
tion this Court will point out that “ entertainment” and
“ recreation” are not synonymous or interchangeable terms.
The statutory phrase “ other place of exhibition or enter
tainment” must refer to establishments similar to those
expressly mentioned. When one considers the exhibitions
and entertainment offered by motion picture houses, thea
tres, concert halls, sports arenas and stadiums, it is clear
at once that basically patrons of such establishments are
edified, entertained, thrilled, or amused in their capacity
of spectators or listeners; their physical participation in
what is being offered to them is either non-existent or mini
mal ; their role is fundamentally passive.
Memorandum Opinion
4 In using the term “ food sales” the Court includes sales of both
food and soft drinks. That sales oLdrinks would not be considered
as sales of “ food” is indicated by GESsi-a L. Sdrales, 10 Cir., 344 F.
2d 1019; Robertson v. Johnston, E.D. La. 249 F. Supp. 615; Tyson
v. Gazes, E.D. La., 238 F. Supp. 937, rev’d on other grounds, 3 Cir.
363 F. 2d 742.
60
The difference in what is offered by the establishments
named in section 201(b)(3) and what is offered at Lake
Nixon and Spring Lake is obvious. The latter establish
ments do not offer “ entertainment” in the sense in which
the Court is convinced that Congress used the w ord; 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 syn-
onjnnous 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 overlooked
the dancing which has gone on at both establishments or
the diving exhibitions and fireworks display at 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 appears that the diving,
which was done by life savers employed 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
Memorandum Opinion
61
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 affect
interstate commerce. Certainly, the racial discrimination
which the defendants have practiced has not been supported
by the State of Arkansas or any of its political subdivisions.
Referring to section 201(e), the criterion which it estab
lishes for the determination of whether a place of exhibition
or entertainment “affects commerce” is whether the estab
lishment in question customarily presents films, perform
ances, athletic teams, exhibitions or other sources of enter
tainment which move in commerce.” (Emphasis supplied.)
The emphasized words are not without significance when
read in comparison with the statutory criterion for deter
mining whether the operations of an eating establishment
affect interstate commerce. With regard to such an estab
lishment 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 interstate 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 reason
to believe that the local musicians: who play for the dances
at Lake Nixon and Spring Lake have ever moved as musi
cians in interstate commerce or that they are now doing
so. Nor do the juke boxes, the records and other recrea-
Memorandum Opinion
62
tional apparatus, such as boats, utilized at the respective
establishments “move” in interstate commerce, although it
is true that the juke boxes, some of their records, and part
of the other recreational equipment and apparatus were
brought into Arkansas from without the State.
The Court’s approach to and its solution of the problems
presented by these cases find full support in the opinion
of Judge West in Miller v. Amusement Enterprises, Inc.,
E.D. La., 239 F.Supp. 323, a case involving a privately
owned amusement park in Baton Rouge, Louisiana.6
From what has been said it follows that a decree will
be entered dismissing the complaints in the respective
cases.
Memorandum Opinion
Dated this 1st day of February, 1967.
s / J. S m it h H enley
United States District Judge
6 That case was decided on September 13, 1966, and the opinion
was published on December 12 of that year after the instant cases
were tried.
63
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 conclu
sions 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. S m it h H en ley
United States District Judge
Stipulation
It is hereby stipulated between counsel for Lake Nixon
and for the plaintiffs that Lake Nixon had a gross income
of $10,468.95 from food sales during the 1966 season. Of
this amount, purchases of food amounted to $5,550.87; pay
roll, insurance and depreciation amounted to $3,478.46; and
food insurance amounted to $27.00. The net profit from
food and concession sales amounted to $1,412.62.
Notice of Appeal
Please take notice that plaintiffs in the above-styled
case hereby appeals from the decision and decree of the
United States District Court for the Eastern District of
Arkansas, Western Division, entered in this cause by the
Honorable J. Smith Henley, District Judge, on February
1, 1967.
64
UNITED STATES COURT OF APPEALS
F or th e E ig h t h C ircuit
No. 18,824
Opinion
M rs. D oris D an ie l and M rs. R osalyn K yles,
A ppellants,
v.
E u ell P a u l , J r ., Individually and as Owner,
Operator or Manager of L ake N ixon Clu b ,
A ppellee .
APPEAL PROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
[May 3, 1968.]
Before V an O osterhout, Chief Judge; M e h a ffy and
H ean ey , Circuit Judges.
M e h a ff y , 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
65
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 Nison Club.1 This suit was brought as a class
action under Title II of the Civil Rights Act of 1964,,
F.L. 88-352, §§201 et seq., 78 Stat. 243 et seq., 42 TJ.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 Act’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
1 At the trial, an oral amendment was made and accepted making
Mrs. Paul a party to the action.
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66
ated under the guise of being a private club solely for
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 o f 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
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67
be deprived of Ms rights under the Fourteenth Amendment
to the Constitution of the United States.
The provisions of the Civil Rights 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 place of public accommodation
within the meaning of this subchapter i f its operations
affect com m erce, 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
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68
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
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) o f 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
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69
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 o f 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
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 Neg*ro 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
2 In this regard, Mrs. Paul testified as follows:
“ Q. Now, what do you have out there, Mrs. Paul, by way of
facilities 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 the undesirables.”
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70
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.
Plaintiff Mrs. Doris Daniel, who lived in Little Rock
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
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71
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
locality, but to the contrary the undisputed evidence indi
cates that they did not.3
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3 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
J aeksonville ?
“ 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 re
member the names of all—
72
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
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
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“ 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 mem
bers of the club?
“A. Members of Lake Nixon.
“ Q. To members of Lake Nixon?
“A. To all members of Lake Nixon it usually ran.”
73
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 wished to refresh themselves during an
afternoon or evening of participation in the various forms
of recreation offered— swimming, boating, miniature 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.
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- * I
6 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 people if they wanted it;
I mean we were not in the food business—there was no restau
rant— . it was just a necessity.”
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74
mining whether its operations affect commerce, we must
look to 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 uffrlk-ed 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.
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
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75
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 Bights
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. F o x , 266 F.Supp. 866, 868 (M.D. Fla. 1967).
In Newm an v. P igg ie P ark E nterprises, 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
thing of real worth and importance; of considerable value;
valuable; something worthwhile as distinguished from
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76
something without value or merely nominal.” In the N ew
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 W illis v. P ickrick R estaurant, 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 XJ. S. 41, a federal interstate highway.
In G reg ory v. M eyer, 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
rived two-thirds of its sales volume from beef products
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77
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 G regory
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 Kat&enbach v. M cClung, 379 U.S. 294 (1964),
is likewise distinguishable. The Supreme Court there
stated at page 298: “ In this case we consider its [the
Act’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 E vans v. Laurel L inks, Inc., 261 F.Supp. 474
(E.D. Ya. 1966), cited by plaintiffs, is likewise factually
inapposite. In the E vans 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.”
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78
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 Act’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 alleys and billiard parlors would be exempt, 110
Cong. Rec. 7406 (4 /9 /6 4 ); Miller v. Am usem ent E nterprises, Inc.,
.....F .2 d ....... (5th Cir. # 24259 9/6/67).
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79
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.” It
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 ail 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. Am usem ent E n ter
prises, Inc., supra.
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80
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.” 110 Cong. Rec. 6567.8
Senator Magnus on, 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 o f entertainm ent
which m ove in interstate c o m m e r c e (Emphasis
added.)
We have no disagreement with the trial court’s rationale
or with its utilization of the rule of ejusdem generis in
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8 See n. 7.
9 See n. 7.
81
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
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, plaintiffs then conclude that “ the operation of the
snack bar affects commerce within the meaning of § 201
(c) (2) of Title II.”
In M iller v. A m usem ent E n terprises, Inc., . . . F.2d . . .
(5th Cir. # 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 set
ting 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 M iller 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 because 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 M iller case are patently dis
tinguishable from those in the instant case. As examples,
in M iller the amusement park was “ located on a major
artery of both intrastate and interstate transportation;
. . . its advertisements solicit the business of the public
generally” and were not confined to club members; and
“ten of its eleven mechanical rides admittedly were pur
chased 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-
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deuce 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
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 defin
ing the criteria for coverage under subsection (c) precludes
the court from holding upon any rule of construction 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 Rights 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
83
the Club is immaterial, as is the question of whether the
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 D rew s v. Maryland,
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. I f a substantial portion of the food served
in that restaurant has moved in interstate commerce,1 2
the entire amusement park is a place of public accom
modation under the Act. * * * ”
Opinion
In E vans v. Laurel Links, Inc., 261 F.Supp. 474 (E.D.
Ya. 1966), the court found that a golf course was a public
accommodation within the meaning of the Act because 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 re
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 interstate commerce.
2 The defendant and others refused to leave an amusement park
and were convicted in a Maryland State Court of disorderly con
duct and disturbance of the peace. After having previously re
manded 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 certiorairi. 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 pend
ing convictions. Hamm v. B ock H ill, 379 U.S. 306 (1964). In the
course of stating that view, he made the observations quoted above.
84
ceipts 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
U.S.C. § 2000a(b) (4) (A ) (ii) which provides that any
establishment within the premises of wdiich is located
a covered establishment is a place of public accommo
dation. See H.R. Rep. No. 914, 88th Cong., 2d Sess.
(1964) (additional Majority Views, Hon. Robert W.
Kastenmeier) U.S. Code Cong. & Admin. News, pp.
2409, 2410 (1964); Rasor, 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 Adam s v. Fazzio R eal E sta te Co., Inc., 268 F.Supp.
630 (E.D. 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 revenues 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
3 In 1966, the gross income from food sales was $10,468.95, as
compared with a total gross income of $46,326.
Opinion
85
viding that as long as an eating establishment was operated
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 defen
dant 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
of the minority stated that “ Section 201(d) precludes
racial discrimination * * * . * * * [of] a department store
(operating a lunch counter) * * 4 5
In D rew s,6 Evans, Adam s 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 P inkney v. M eloy, 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 P inkney decision. The legisla
4 House Report (Judiciary Committee) No. 914, 1964 V. S. Code
Cong. & Ad. News, 2391, 2396.
5 Additional Views on H.R. 7152 of Hon. William M. McCulloch,
Hon. John V. Lindsay, Hon. William T. Cahill, Hon. Garner E.
Shriver, Hon. Clark MacGregor, Hon. Charles McC. Mathias, Hon.
James E. Bromwell, 1964 V. 8. Code Cong. & Ad. News, 2487, 2494.
6 Drews v. State, 224 Md. 186, 167 A.2d 341, 342 (1961).
Opinion
86
tive history of the Act gives an example the precise fact
situation involved in P in kn ey .
“A hotel barber shop or beauty parlor would he an
integral part of the hotel, even though operated
by some independent person or entity [Emphasis
a d d e d ] 7
The majority opinion of this Court does not base its
decision on the rationale of the District Coirrt 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 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
7 Senate Report (Judiciary Committee) No. 872, 1964 U. S. Code
Cong. & A d. News, 2355, 2358-59.
8 It need not be established that the. defendants’ food “ operations
affect commerce” if the discriminatory practices by the defendants
were “supported 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
action:”
“ § 201(d) 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 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 the action of the State or politi
cal subdivision thereof.”
An Arkansas statute purports to give an omnibus right to dis
criminate :
“ § 71-1801. B ight to select customers, patrons or clients.—
Every person, firm or corporation engaged in any public busi
Opinion
87
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].”
Opinion
ness, ti'ade or profession of any kind whatsoever in the State
of Arkansas, including, but not restricted to, * * * restaurants,
dining room or lunch counters, * * *, or other places of enter
tainment and amusement, including public parks and swimming
pools, * * *, is hereby authorized and empowered to choose or
select the person or persons he or it desire to do business with,
and is further authorized and empowered 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, Yol. 6A (1967 Supp).
The statute is further supported by criminal sanctions:
“ § 71-1803. Failure to leave a fter request—Penalty.—Any per
son who enters a public place of business in this State, or upon
the premises thereof, and is requested or ordered to leave there
from by the owner, manager, or any employee thereof, and,
after having been so requested 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 necessary 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.
C f., A dickes v. S. H . K ress & Company, 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 establish that the defendant would
have discriminated regardless of the state statute. Williams v. H ot
Shoppes, Inc., 293 F.2d 835, 846-47 (D.C. Cir. 1961) (dissenting
opinion), cert, denied, 370 TJ.S. 925 (1962).
Opinion
This statement, in my view, constitutes a clear and specific
finding that the Club served interstate travelers and was
sufficient 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
(2) it inserted one advertisement in “Little Rock Today,”
a monthly magazine, indicating available attractions in
9 The conclusion of the District Court draws additional support
from the following facts:
(1) The defendants made no attempts to specifically exclude in
terstate 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 mem
bers of Lake Nixon. In answer to your requests, Mr. Paul is
happy to announce the Saturday night dance will be continued
. . . this Saturday night with music by the Villagers, a great
band you all know and have asked to hear again. Lake Nixdn
continues their policy of offering you year-round entertain
ment. The Villagers play for the big dance Saturday night
and, of course, there’s the jam session Sunday afternoon . . .
also swimming, boating, and miniature golf. That’s Lake
Nixon. . . . ”
89
the Little Rock area in the same period; (3) it inserted
one advertisement in the “Little Rock Air Force Base,”
a monthly newspaper published at the Little Rock 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 understood
to be such by the people living in the Little Rock 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
note 10, supra. See also, M iller v. Am usem ent E n terprises ,
Opinion
90
Inc., Civ. No. 24259 (5th. Cir. April 8, 1968) (en banc),
reversing 259 F.Supp. 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 manu
factured outside of Arkansas, that some of the records
played on them were manufactured outside of Arkansas,
and that part of the other recreational equipment and
apparatus (aluminum paddle boats and “Yaks”— surf
boards) 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 District Court
found and the record shows that they were leased and
purchased11 from an Oklahoma concern and imported into
Arkansas.
A true copy.
Attest:
Cleric, U. 8 . Court o f A ppeals, E ighth Circuit. 11
Opinion
11 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 . It’s similar to a surfboard.
“ Q. Similar to a surfboard; do you know where you pur
chased that?
“A. Prom the same company.
“ Q. What company is that?
“A. Aqua Boat Company.
“ Q. W ho!
“A. Aqua Boat Company.
“ Q. Is that a local Company?
“A. No.
“ Q. Where is it?
“ A . I believe they’re in Oklahoma, Bartlesville.”
91
Judgment
UNITED STATES COURT OF APPEALS
F oe t h e E i g h t h C ircuit
No. 18,824— September Term, 1967
D oris D aniel, and R osalyn K yles ,
vs.
Appellants,
E u ell P a u ll , Jr., Individually and as Owner,
Manager or Operator o f the L ake N ixon Cl u b .
a p p e a l f r o m t h e u n it e d s t a t e s d is t r ic t c o u r t
FOR THE EASTERN DISTRICT OF ARKANSAS
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.
92
[Cover omitted]
IN THE UNITED STATES COURT OF APPEALS
F ob th e E ig h t h C ircu it
No. 18,824
Petition for Rehearing En Banc
M rs. D oris D an iel and M rs. R osalyn K yles ,
Appellants,
v .
E uell P a u l , J r ., Individually and as Owner,
Operator or Manager of Lake Nixon Club,
A ppellee .
a p p e a l f r o m d e c is io n o f t h e u n it e d s t a t e s d is t r ic t c o u r t
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
Appellants respectfully urge that this appeal, decided
adversely to them on May 3, 1968, by a 2-1 decision of a
panel of this court (Judges Mehaffy, Van Oosterhout,
Judge Heaney dissenting), be set down for rehearing
en banc because of (1) the important of the issues in
volved herein and their crucial relationship to effective
enforcement of Title II of the Civil Rights Act of 1964;
(2) the conflict between the majority opinion and the
Fifth Circuit’s en banc decision in M iller v. Am usem ent
E nterprises, Inc. interpreting Sections 201(b)(3) and
(c)(3) of the Act; (3) the conflict between the majority
opinion here and the Fifth Circuit’s opinion in Faszio
93
R eal E sta te Co., Inc. v. Adam s interpreting Section 201
(b)(4) of the Act; (4) the disagreement within the panel
itself on these important issues. The panel’s majority
interpretation of these sections of the Act, if permitted
to stand, will so seriously interfere with enforcement of
Title II of the Civil Rights Act of 1964 that it should be
reexamined by the entire membership of this court en banc.
I
There can be little doubt concerning the importance of
the case. It is this court’s first- major interpretation of
Title II of the 1964 Civil Rights Act, probably the most
important legislation passed by the Congress in a quarter
of a century or more and the most sweeping and far-
reaching piece of civil rights legislation enacted since the
Reconstruction Era. The policy expressed in Title II of
the Act is one “that Congress considered of the highest
priority.” Newm an v. P igg ie Park E n terprises , 390 U.S.
400, 402, 19 L.ed. 2d 1263, 1265 (1968).
The majority’s interpretation of the sections of the
Act here involved differs so markedly from that expres
sion of Congressional policy as to require a thoroughgoing
reexamination by the full court. An additional highly
important reason necessitating en banc consideration by
this court is because the decision of the majority is now
in conflict with the full Fifth Circuit Court as to the
interpretation of §§ 201(b) (3) and (c)(3) of the Act and
with a panel of that court as to § 201(b) (4). Obviously,
the full bench of this court should consider whether these
conflicts shall be permitted to stand.
Petition for Rehearing En Banc
94
P etition fo r R ehearing E n Banc
II
A. Appellants have consistently maintained throughout
this litigation that Lake Nixon is subject to the prohibition
against racial discrimination contained in the Civil Rights
Act of 1964 because it is. a “place of entertainment” as
that term is used in § 201(b) (3) of Title II (42 U.S.C.
§ 2000a(b) (3 )). The district judge rejected this conten
tion based upon a distinction between “ entertainment”
(spectator) and “recreation” (participant) which he felt
was written into the Act. K y les v. Paul, 263 F. Supp. 412,
419-20 (E.D. Ark. 1967). The same issue was involved
in the recent decision in M iller v. Am usem ent E nterprises,
- — - F.2d ------ (5th Cir. No. 24259, April 8, 1968) (en
banc). The Fifth Circuit rejected the distinction:
We are unable to agree with those concepts which
would prefer, or those which would demand, that the
Civil Rights Act be narrowly construed, i.e., the es
tablishments referred to in § 201(b) (3) must be places
of entertainment which present exhibitions for spec
tators and that such exhibitions must move in inter
state commerce. However, while not necessary to our
decision, as will be seen by a further reading of this
opinion, we find that Fun Fair is covered by the lit
eral terms of the Act. Although it may be that the
types of exhibition establishments listed in § 201(b) (3)
are those which most commonly come to mind, no
one would dispute the proposition that such list is
not complete or exhaustive. Therefore, any establish
ment which presents a performance for the amuse
ment or interest of a viewing public would be included.
In our view Fun Fair is such an establishment. The
amusement park presents a performance of small chil
95
dren riding on various mechanical “kiddie” rides plus
a performance of ice skating. It is obvious to us that
many of the people who assemble at the park come
there to be entertained by watching others, particu
larly their own children, participate in the activities
available. In fact Mrs. Miller’s presence at the park
was to see her children perform on ice.9 While the
record does not explicitly and clearly show this to
be a fact, aside from Mrs. Miller’s statement, we as
Judges may take judicial knowledge of the common
ordinary fact that human beings are “ people watchers”
and derive much enjoyment from this pastime.10
Thus, the Fifth Circuit has held that the participative-
exhibitive dichotomy adopted by the district court below
and accepted by the panel is not a viable distinction in
light of the Act’s purpose. Surely the swimming, boating,
picnicking, sun-bathing and dancing activities occurring at
Lake Nixon are as much, if not more, spectator activities
as those which occur at Fun Fair Park. In any event, the
Fifth Circuit’s conclusion was reached after extensive
examination by the full court. This court should do no
less.
B. The panel’s majority sustained the district court’s
interpretation of the “entertainment” provisions of Title II
9 In Mrs. Miller’s deposition she stated:
“Yes, my little boy particularly was interested in show
ing off—showing me how well he could skate, too.”
10 The following is from the record:
“How many people would you say were present ?
“Well, I can’t say exactly. There were people skating;
there were people sitting in the seats; there were people
standing waiting to be served.”
(Slip opinion pp. 10-11) (Footnotes in court’s opinion)
Petition for Rehearing En Banc
96
on another ground—that no effect upon interstate com
merce had been shown.
Appellants are unable to accept the statements of the
majority that there was a “ total lack of any evidence that
the operations of Lake Nixon in any fashion affect com
merce” (Slip opinion, p. 17). We particularly call to the
attention of the court the fact that Lake Nixon placed
an advertisement in the magazine, “Little Rock Today.”
This magazine was described by the district court as “a
monthly magazine indicating available attractions in the
Little Rock area,” K yles v. Paul, 263 F.Supp. 412, 418
(E. D. Ark. 1967). This magazine fulfills the same func
tion in Little Rock that the “ Key” magazine fulfills in
St. Louis, and we note the following statement from the
masthead of the May, 1968 edition:
Published monthly and distributed free of charge by
Metropolitan Little Rock’s leading hotels, chambers
of commerce, motels and restaurants to their guests,
new comers and tourists, and to reception rooms.
It should be obvious that any facility which places an
advertisement in a magazine summarizing available at
tractions including entertainment opportunities and which
magazine is distributed in hotels, willingly accepts, and
indeed expects, the patronage of interstate travelers.1
Certainly this Court may take judicial notice of the char
acter of this magazine if it may take judicial notice of
the “ common knowledge” that a type of boat is manu
factured in Arkansas (Slip Opinion, p. 14), leading to an
1 The Club also advertised in L ittle B ock A ir F orce Base pub
lished at an Air Force base near Little Rock and over an area
radio station (R. 11). Clearly, the facilities of Lake Nixon—in
cluding the concession stand—were “ offered” to interstate travelers.
Petition for Rehearing En Banc
97
inference in the court’s opinion that Lake Nixon’s boat
ing equipment was entirely intrastate, an inference clearly
contradicted by the record (R. 14).2 Furthermore, the
Fifth Circuit concluded that the operations of the Fun
Fair Amusement Park did affect commerce even though
there was no proof whatsoever that the food sold at the
concession stand originated outside Louisiana. In this
case, the district court specifically found that ingredients
of the hamburger buns and soft drinks originated outside
Arkansas (263 F. Supp. at 418). The district court also
discounted the influence of juke box records shipped in
from outside the state,3 but this reasoning was specifically
condemned in the M iller case (see slip opinion at p. 17),
and see T w itty v. V ogue Theatre Cory., 242 F.Supp. 281
(M.D. Fla. 1965). Again, the rationale of the M iller case,
if accepted by this Court, is clearly controlling and de
mands a reversal. (See especially, slip opinion, pp. 17-21.)
That rationale should either be accepted or rejected by
the entire Eighth Circuit where matters so important are
concerned.
I ll
A. The consequences for the Civil Rights Act of 1964
will be equally grave if the concept of a “unitized opera
tion,” a locution which permits public accommodations to
circumvent section 201(b)(4) of Title II is permitted to
stand. This theory was first proposed by the district
judge, without any authority therefor, and was approved
in the majority opinion of the panel. Judge Heaney’s
2 Whether or not some boats of this type are manufactured in
Arkansas, the boats involved in this case were imported from
Oklahom'*.(Slip opinion, p. 25).
3“ There is no dispute that juke boxes were manufactured outside
of Arkansas, and the same thing may be said about at least many
of the records played on the machines” 263 F. Supp. at 417.
Petition for Rehearing En Banc
98
dissenting opinion exposes the irrational logic of the con
cept more clearly and eloquently than we are able, but we
should like to emphasize the practical consequences of
permitting this erroneous interpretation of the law to bear
the stamp of this circuit. Thousands upon thousands of
individual and corporate proprietors throughout the coun
try who wish to discriminate against Negroes, or any
other racial or religious group, and whom Congress wished
to prohibit from engaging in such discrimination, will now
be free to segregate their establishments by applying the
circular reasoning of this case. First, it is said that Lake
Nixon is not within section 201(b) (2) because it is not prin
cipally engaged in selling food. This statement is true
enough—the major purpose of Lake Nixon’s existence is
not to sell food. However, the proprietor then argues
that there is no coverage under section 201(b)(4) because
the food stand cannot be considered by itself to determine
whether its principal intent is selling food (and thus
whether it is a covered establishment within the prem
ises of Lake Nixon and therefore whether Lake Nixon it
self is covered). All this because the food stand is said
to be merely an “ adjunct” to the principal business of
Lake Nixon. In effect, the food stand disappears from
the view of the district court and the panel’s majority
in attempting to determine whether Lake Nixon is within
the purview of the Civil Eights Act. And this despite
the fact, which can hardly be contested, that the princi
pal business of the food stand is selling food.
There was no basis for the district court’s belief that
Section 201(b)(4) contemplated an establishment under
different ownership within the parent establishment. Even
if that were so, the record here shows that while Lake
Nixon was owned by Mr. and Mrs. Paul, the snack bar
Petition for Rehearing En Banc
99
was jointly owned by them and Mrs. Paul’s sister (E.32).
Thus, Lake Nixon meets even the judges’ erroneous
standard for coverage under Section 201(b)(4).
B. Beyond this, as a consequence of the Fifth Circuit’s
recent decision in Fazzio R eal E sta te Co., Inc. v. Adam s
(No. 24825, May 24, 1968) affirming Adam s v. Fazzio R eal
E sta te Co., 268 F. Supp. 630 (E.D. La. 1967), there now
exists a clear-cut conflict between the decision of this
panel and that of the unanimous panel in Fazzio R eal
E sta te [Judges Coleman and Clayton (who dissented from
the en banc decision of the court in M iller) ; district judge
Johnson], The Fifth Circuit has affirmed a district court
decision^ which rejected the “unitized operation” (263 F.
Supp. 419) with sales “purely incidental to the recrea
tional facilities” (263 F. Supp. 417) approach of the dis
trict court below and endorsed by the panel’s majority
here. As the court said:
“ . . . [ I ] f it be found—as it was in this ease—•
that a covered establishment exists within the struc
ture of a unified business operation, then under the
provisions of Section 201(b)(4) of the Act the entire
business operation located at those premises becomes
a ‘covered establishment.’ The Act draws no distinc
tion with regard to the principal purposes for which
a business enterprise is carried on. Had a substan
tial business purpose test been intended, as urged by
Fazzio, it would have been a very simple matter to
include it in the Act. No such test was included with
respect to the question of when the presence of one
covered ‘establishment’ in a business enterprise will
result in the entire operation’s being treated as one
establishment for the purpose of coverage under Sec
Petition for Rehearing En Banc
100
tion 201(b) (4). In fact, the face of the Act specifically
rebuts the existence of any substantial business pur
pose or ‘functional unity’ limitation on the meaning
of the term ‘establishment’ as used throughout Sec
tion 201. Under Section 201(b)(4)(a) coverage may
extend to both establishments within covered estab
lishments and to an establishment ‘within the prem
ises of which is physically located any such covered
establishment.’ ” (Slip opinion pp. 6-7)
# # # # *
“Fazzio’s Bridge Bowl as an entity is not covered be
cause it is principally engaged in selling food for
consumption on the premises under Section 201(b)(2).
Rather, Fazzio’s is covered (1) because the refresh
ment counter is a covered establishment principally
engaged in selling food for consumption on the prem
ises within the meaning of Section 201(b)(2), and (2)
because the covered refreshment counter is physically
located within the premises of Fazzio’s bowling oper
ation [Section 201(b) (4) (a) (ii) ] and the two stand
ready to and do serve each others patrons. [Section
201 (b )(4 )(b )].” (Slip opinion pp. 7-8)
Petition for Rehearing En Banc
Obviously, the conflict of interpretation on this point
should also be reviewed by the full court.
101
P etition fo r R ehearing E n Banc
C onclusion
For the foregoing reasons, appellants urge that this
petition for rehearing en banc be granted.
Respectfully submitted,
N orman C. A m aker
J ack Greenberg
M ich ael M eltsner
10 Columbus Circle
New York, New York 10019
J o h n W . W alker
N orman J . C h a c h k in
1304-B Wright Avenue
Little Rock, Arkansas 72206
A ttorn eys fo r A ppellants
102
Certificate
I hereby certify that the above petition is submitted in
good faith and is not filed for delay. It is believed to be
meritorious.
N orman C. A m aker
Certificate o f Service
This is to certify that on this 31st day of May, 1968,
I served a copy of Appellants’ Petition for Rehearing
E n Banc upon Sam Robinson, Esq., Adkins Building, 115
East Capitol Street, Little Rock, Arkansas, by mailing a
copy thereof to him at the above address via United States
airmail, postage prepaid.
N orman C. A m aker
A tto rn ey fo r A ppellants
103
UNITED STATES COURT OF APPEALS
F ob th e E ig h t h C ircuit
No. 18,824
Order Denying Rehearing
D oris D an ie l , et al.,
vs.
E u ell P a u l , J r ., etc.
A ppellants,
a p p e a l p r o m t h e u n it e d s t a t e s d is t r ic t c o u r t
EASTERN DISTRICT OP ARKANSAS
There is before the Court appellants’ petition for rehear
ing en banc and on consideration 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
104
Clerk’s Certificate
UNITED STATES COURT OF APPEALS
F or t h e E ig h t h C ircuit
I, R obert C. T u cker , Clerk of the United States Court
of Appeals for the Eighth Circuit do hereby certify that
the foregoing contains the printed record on which the
appeal from the United States District Court for the
Eastern District of Arkansas was heard and determined
in said Court of Appeals, together with full, true and com
plete copies of the Opinion of said Court of Appeals and
Judgment entered thereon; Petition of appellants for a
rehearing en banc, and Order denying same, in the case
of Doris Daniel and Rosalyn Kyles, Appellants, vs. Euell
Paul, Jr., Individually and as Owner, Manager or Opera
tor of the Lake Nixon Club, Appellees, No. 18,824,. as full,
true and complete as the originals thereof remain on file
and of record in my said office.
And I do further certify that the Mandate of said Court
of Appeals in said cause was issued and directed to the
Judges of the United States District Court for the Eastern
District of Arkansas on the 26th day of June, A. D. 1968.
In testim o n y w hereof , I hereunto subscribe
my name and affix the seal of the United
[ seal] States Court of Appeals for the Eighth Cir
cuit at office in the City of St. Louis, Missouri,
this fifth day of August, A. D. 1968.
R obert C. T ucker
Clerk, U.8. Court of Appeals
for the Eighth Circuit
By L illian W . M cD ermott
Chief Deputy Clerk
105
Order Allowing Certiorari— -December 9, 1968
SUPREME COURT OF THE UNITED STATES
No. 488— October Term, 1968
M rs. D oris D an iel and M rs. R osalyn K yles,
P etitioners,
v.
E u ell P au l , J r ., Individually and as Owner,
Operator or Manager of L ake N ixon Clu b ,
Respondent.
The Petition for Writ of Certiorari is granted and the
case is placed on the summary calendar.
MEIIEN PRESS INC. — N. Y C. •**^•>219