Dobbins v. Virginia Reply Brief on Behalf of Plaintiff in Error

    I n t h e

lotted States (Emtrt of Appeals
F ob the E ighth Circuit 

No. 18824

Mbs. Doris Daniel and Mrs. Rosalyn Ivyles,

Appellants,

Ettell Paul, Jr., individually and as Owner, 
Operator or Manager of Lake Nixon Club,

Appellee.

ON A PPE A L FROM  T H E  U N IT E D  STATES D ISTRICT COURT 

FOR T H E  EA STE R N  D ISTRICT OF ARK AN SAS,

W ESTE R N  DIVISION

APPELLANTS’ BRIEF

John W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas 12206

Jack Greenberg 
M ichael Meltsner 
Gabrielle A. K irk

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X

Statement ..............................................................................  1

Statement of Points to Be Argued .......... ....................  5

A rgument-—

I. Lake Nixon Is an Establishment Covered by 
Section 201(b)(4) (42 TT.S.C. §2000a(b) (4)) of 
Title II of the Civil Rights Act of 1964 ............. 8

A. The snack bar at Lake Nixon is a facility 
principally engaged in selling food for con­
sumption on the premises within the mean­
ing of Sections 201(b)(2) and 201(c)(2) (42 
U.S.C. §§2000a(b) (2) and (c )(2 ))  of Title II 8

B. The snack bar is located within the premises
of Lake Nixon, therefore, the whole of Lake 
Nixon is a covered establishment ...... ............  10

II. Lake Nixon Is a “Place of Entertainment” 
Whose Operations Affect Commerce Within the 
Meaning of Sections 201(b)(3) and 201(c)(3)
(42 TT.S.C. §§2000a(b) (3) and (c) (3)) of Title II 
of the Civil Rights Act of 1964 ........................... 14

A. The dichotomy between spectator and par­
ticipative activity is unrealistic and not sup­
ported by the legislative history of Title II 
or by the case law with respect to the cov­
erage of state public accommodations laws .... 14

B. The operations of Lake Nixon affect com­
merce within the meaning of Section 201- 
(c)(3 ) of Title II ..............................................  19

Conclusion ...................................................................  22

Certificate of Service ..........................................................  23

PAGE



T able of Cases

A.B.T. Sightseeing Tours, Inc. v. Gray Line, 242 F.
Supp. 365 (S.D. X.Y. 1965) .............. .......... ............. 6,

Amos v. Prom, Inc., 117 F.Supp. 615 (N.D. Iowa 
1954) ................ .. .......... ................................... ................ 6,

Central Amusement Company v. District of Columbia, 
121 A.2d 865 (Mun. Ct. App. D.C. 1956) ...................6,

Dilworth v. Riner, 343 F.2d 226 (5th Cir. 1965) .........6,

Evans v. Laurel Links, Inc., 216 F.Supp. 474 (E.D. 
Va. 1966) .  5,9,

Fraser v. Robin Dee Day Camp, 44 N.J. 480 (1965) ....

City of Greenwood v. Peacock, 384 U.S. 808 ...............6,

Hamm v. City of Rock Hill, 379 U.S. 306 ...........5, 6,10,

Katzenbach v. McClung, 379 U.S. 294 ...........................5,

Lambert v. Mandel’s of California, 156 Cal. App. Rep. 
2d 855 (1957) .................................... ..............................6,

McClung v. Katzenbach, 233 F.Supp. 815 (N.D. Ala.
1964), rov'd. 379 U.S. 294 .................. .............. ............. 6,

Miller v. Amusement Enterprises, Inc., 239 F.Supp. 
323 (E.D. La. 1967) ..................................   6,

Pinkney v. Meloy, 241 F.Supp. 943 (M.D. Fla. 1965) ....5,

Rachel v. Georgia, 384 U.S. 780 .........................................6,
Robertson v. Johnston, 249 F.Supp. 618 (E.D. La. 

1966) ...............................   6,

20

18

18

17

13

6

17

17

21

17

17

14

11

17

14



Ill

Stiska v. City of Chicago, 405 111. 374 (1950) ............... 6,18

Twitty v. Vogue Theatre Corp., 242 F.Supp. 281 (M.D.
Fla. 1965) .......................................................................... 6

United States v. Alabama, 304 F.2d 583 (5th Cir. 1962),
371 U.S. 37 .................................-.............. -.................... 7,17

United States v. Sullivan, 332 U.S. 689 ...........................7,20

Wickard v. Filburn, 317 U.S. I l l  .................-.......... ..... 7,21

PAGE

Statutes:

28 U.S.C. §§1343(3) and 1343(4) .

42 U.S.C. §§2000a et seq. ....................  3, 5

42 U.S.C. §2000a(b) (2) ... ........................ 5,8

42 U.S.C. §2000a(b)(3) ... ............................. 6, 7,14

42 U.S.C. §2000a(b)(4) ... .................... 5, 8

42 U.S.C. §2000a(c)(2) ... ...... ......  5,8

42 U.S.C. §2000a(c) (3) ... .....................6, 7,14,19

Civil Rights Act of 1957 . ................ 17

Civil Rights Act of 1964, Title II :

<201(b) ........................
§201(b ) (2) ..................
§201 (b) (3) ............. ..
§201(b) (4) ..............
§201(c)(2 ) .................
§201(c ) (3) .................

................... 8
...........  13

.............4, 6, 8, 9,10,14,15,17,19
................4, 5, 8,10,11,12,13

....................8,10
............6,14,17,19, 20

Alaska Stat., §§11.60.230 to 11.60.240 (1962) .................7,16



IV

111. Ann. Stat. (Smith-Hurd ed.), c. 38, §§13-1 to 13-4

PAGE

(1964), c. 43, §133 (1944) .............................................. 7,16

Iowa Code Ann. §§735.1 and 735.2 (1950) .......................7,18

NJ Stat. Ann., §§10:1-2 to 10:1-7 (1960), §§18:25-1 to 
18:25-6 (1964 Snpp.) ....................................... .............. 7,16

NM Stat. Ann., §§49-8-1 to 49-8-7 (1963 Supp.) .... ...... 7,16

NY Civil Eights Law (McKinney ed.) Art. 4, §§40 and 
41 (1948, 1964 Supp.), Exec. Law, Art. 15, §§290 to 
301 (1951, 1964 Supp.), Penal Law, Art. 46, §§513 
to 515 (1944) ................................................................... 7,16

Pa. Stat. Ann., Tit. 18, §4654 (1963) .......................... .7,16

RI Gen. Laws Ann., §§11-24-1 to 11-24-6 (1956) .........7,16

Other Authorities:

U.S. Code Cong, and Ad. News (1964), p. 2358 ...........  11

2 U.S. Cong. Adm. News 2357 (1964) ........................... 20

110 Cong. Eec. 1511 ...................    16

110 Cong. Eec. 1520 ........................................................  13

110 Cong. Eec. 7402 ..............................................    15

110 Cong. Eec. 7406-07 ......................   12,13

Hearings on S. 1732 before the Senate Committee on 
Commerce, 88th Cong., 1st Sess. (1963) at 24 ....... 21



I n the

lmt£& ntvB (Unun nf Amalfi
F ob the E ighth Cibcuit 

No. 18824

Mbs. Dobis Daniel and Mbs. Rosalyn K yles,

-v.-—
Appellants,

E tjell Paul, Jk., individually and as Owner, 
Operator or Manager of Lake Nixon Club,

Appellee.

ON A PPE A L FBOM  T H E  U N IT E D  STATES D ISTRICT COURT 

FOE T H E  EASTERN  D ISTRICT OF A R K A N SAS, 

W ESTE R N  DIVISION

APPELLANTS’ BRIEF

Statement

This is an appeal from the February 1, 1967 Decree of 
the District Court o f the Eastern District of Arkansas, 
dismissing appellants’ complaint with prejudice.

On or about July 10, 1966, appellants Mrs. Doris Daniel 
and Airs. Rosalyn Kyles, both of whom are Negroes, went 
to Lake Nixon to swim and use the other available facil­
ities after hearing its advertisements on the radio. Lake 
Nixon is owned and operated by appellee Euell Paul, Jr. 
and his wife (R. 38 and 40). Appellants were told by



2

Mrs. Paul that Lake Nixon was a private club and that 
they had to be members in order to use the facilities. 
They were further informed that the membership was 
filled (E. 39). However, it was subsequently disclosed 
that, in fact, the membership has never been full and 
appellants were rejected because they were Negro (E. 
26 and 46). Mrs. Paul further testified that the club ar­
rangement is used to exclude Negroes (E. 44).

Lake Nixon, located on Eoute 1 a few miles outside of 
Little Eock, Arkansas, is comprised of 232 acres (E. 42 
and 43). Appellee and his wife purchased this property 
in 1964 for $100,000 (E. 43). Approximately 100,000 people 
make use of the facilities at Lake Nixon every season 
(E. 44). Appellee has always operated Lake Nixon for 
white persons only, to the exclusion of Negroes, and only 
since 1964 has appellee considered Lake Nixon to be a 
private club (E. 46 and 47).

Lake Nixon offers swimming, boating, picnicking, sun­
bathing, miniature golf and general relaxation (E. 18 and 
54). The 15 paddle boats available for use at Lake Nixon 
are leased by appellee from a company in Bartlesville, 
Oklahoma. Appellee also has two “yaks” (which are simi­
lar to surf boards) which may be used by its patrons. 
These “yaks” were purchased from the same company in 
Oklahoma (E. 28 and 29). Appellee has two rented juke 
boxes on the premises which were manufactured outside 
of the State of Arkansas but are rented from a local dealer 
(E. 29, 30 and 54). Patrons may dance or simply listen 
to the juke box music (E. 30). Lake Nixon customarily 
presents dances on Friday night (E. 30). Small bands 
play at these dances (E. 33).

There is a snack bar located on the premises which sells 
hamburgers, hot dogs, soft drinks and milk to Lake Nixon’s 
patrons (E. 12, 30 and 35). The snack bar is run by



3

appellee’s sister-in-law. Under a mutual agreement they 
share the profit (E. 32). In 1965 and 1966 appellee spent 
from five to six thousand dollars for the purchase of the 
food sold at the snack bar. The net profit from these food 
sales was from $1,500 to $2,000 for those same years. 
Lake Nixon’s net income for the years 1965 and 1966 was 
$15,121.28 and $17,892 respectively (E. 12). The court 
took judicial notice that the principal ingredients going 
into the bread sold were produced and processed in other 
states and that certain ingredients going into the processing 
of soft drinks were obtained from sources outside of the 
state (E. 58). Borden’s of Arkansas, Wonder Bakery, 
Frito-Lay and Coca Cola Bottling Company are some of 
the companies which supply goods and products sold at 
Lake Nixon (E. 11).

The membership fee at Lake Nixon is 25 cents for the 
season. I f  a person wishes to swim in the lake, he must 
pay an additional 50 cents; to boat, 25 cents; to play 
miniature golf, 35 cents; and to attend the dances, $1.00 
(E. 27 and 28).

On July 18, 1966, appellants filed a class action complaint 
in the District Court for the Eastern District of Arkansas, 
Western Division, seeking to enjoin the appellee from 
maintaining any policy of depriving or interfering with 
the rights of appellants and others similarly situated to 
admission to and full enjoyment and use of the goods, 
services and facilities of Lake Nixon. Appellants allege 
that they were denied admission in violation of Title II 
of the Civil Eights Act of 1964, 42 U.S.C. §§2000a et seq. 
The jurisdiction of the district court was invoked pursuant 
to 28 U.S.C. §§1343(3) and 1343(4) (E. 3).

On December 7, 1966, trial was held before the Honorable 
J. Smith Henley. On February 1, 1967 Judge Henley, in a



4

memorandum opinion, held that Lake Nixon was not an 
establishment covered by Title II of the Civil Rights Act 
of 1964. Although appellee’s claim of exemption as a 
private club was rejected (R. 58), the court held that 
Lake Nixon was not covered by Section 201(b)(4) of 
Title II since its food sales were not its principal business 
but were only adjunct to its principal business of making 
recreational facilities available to the public. The court 
further held that Lake Nixon was not a place of “ enter­
tainment” within the meaning of Section 201(b)(3) since 
its facilities were primarily for the purpose of recreation 
whereby patrons could enjoy and amuse themselves as 
compared with being amused as a passive spectator (R. 60) 
and that even if it were a “place of entertainment” it did 
not affect commerce within the meaning of §201 (c) of 
Title II (R. 61). The court found that only passive amuse­
ment constitutes “ entertainment” within the meaning of 
Title II (R. 59-61).

A  decree of dismissal was entered on February 1, 1967 
and the instant appeal was filed on March 2, 1967 (R. 63).



5

STATEMENT OF POINTS TO BE ARGUED

I.

Lake Nixon Is an Establishment Covered by Section 
2 0 1 ( b ) ( 4 )  (42  U.S.C. §2000a ( b ) ( 4 ) )  of Title II 
of the Civil Rights Act of 1964.

Cases:

Evans v. Laurel Links, Inc., 216 F.Supp. 474 
(E.D. Ya. 1966);

Hamm v. City of Rock Hill, 379 U.S. 306; 
Katzenbach v. McClung, 379 U.S. 294;
Pinkney v. Meloy, 241 F.Supp. 943 (M.D. Fla. 

1965).

Statutes:

42 U.S.C. §§2000a(b)(2), (b )(4 ), and (c)(2 ).



6

Lake Nixon is a “ place of entertainment”  whose 
operations affect commerce within the meaning of 
Sections 2 0 1 ( b ) ( 3 )  and 2 0 1 ( c ) ( 3 )  (42  U.S.C.
§§2000a(b ) (3 )  and (c) (3 )  ) of Title II of the Civil 
Rights Act of 1964.

Cases:
A.B.T. Sightseeing Tours, Inc. v. Gray Line, 

242 F.Supp. 365 (S.D. N.Y. 1965);
Amos v. Prom, Inc., 117 F.Supp. 615 (N.D. 

Iowa 1954);
Central Amusement Company v. District of 

Columbia, 121 A.2d 865 (Mun. Ct. App. D.C. 
1956);

Dilworth v. Riner, 343 F.2d 226 (5th Cir. 1965); 
Fraser v. Robin Dee Day Camp, 44 N.J. 480 

(1965).;
City of Greenwood v. Peacock, 384 U.S. 808; 
Hamm v. City of Rock Hill, 379 U.S. 306; 
Katzenbach v. McClung-, 379 U.S. 294;
Lambert v. Mandel’s of California, 156 Cal. App. 

Rep.2d 855 (1957);
McClung v. Katzenbach, 233 F.Supp. 815 (N.D.

Ala. 1964), rev’d. 379 U.S. 294;
Miller v. Amusement Enterprises, Inc., 239 

F.Supp. 323 (E.D. La. 1967);
Rachel v. Georgia, 384 U.S. 780;
Robertson v. Johnston, 249 F.Supp. 618 (E.D. 

La. 1966);
Stiska v. City of Chicago, 405 111. 374 (1950); 
Twitty v. Vogue Theatre Corp., 242 F.Supp. 

281 (M.D. Fla. 1965);

II.



7

United States v. Alabama, 304 F.2d 583 (5th 
Cir. 1962), aff’d 371 U.S. 37;

United States v. Sullivan, 332 U.S. 689;
Wickard v. Filburn, 317 U.S. 111.

Statutes:

42 U.S.C. §§2000a(b)(3) and (c )(3 );
Alaska Stat., §§11.60.230 to 11.60.240 (1962);
111. Ann. Stat. (Smith-Hurd ed.), c. 38, §§13-1 

to 13-4 (1964), c. 43, §133 (1944);
Iowa Code Ann. §§735.1 and 735.2 (1950) ;
NJ Stat. Ann., §§10:1-2 to 10:1-7 (1960), 

§§18:25-1 to 18:25-6 (1964 Supp.) ;
NM Stat. Ann., §§49-8-1 to 49-8-7 (1963 Supp.);
NY Civil Eights Law (McKinney ed.) Art. 4, 

§§40 and 41 (1948, 1964 Supp.), Exec. Law, 
Art. 15, §§290 to 301 (1951, 1964 Supp.), 
Penal Law, Art. 46, §§513 to 515 (1944);

Pa. Stat. Ann., Tit. 18, §4654 (1963);
E l Gen. Laws Ann., §§11-24-1 to 11-24-6 (1956).



8

ARGUMENT

I.

Lake Nixon is an Establishment Covered by Section 
2 0 1 ( b ) ( 4 )  (42  U.S.C. §2000a ( b ) ( 4 ) )  of Title II 
of the Civil Rights Act of 1964.

It is appellants’ position that since a snack bar covered 
by Section 201(b) (2) of Title II is physically located within 
the premises of Lake Nixon, the entire facility is covered 
under Title II by the operation of Section 201(b)(4).

A. The snack bar at Lake Nixon is a facility principally 
engaged in selling food for consumption on the premises 
within the meaning of Sections 2 0 1 (b ) (2 )  and 2 0 1 (c ) (2 )  
(4 2  U.S.C. §§2 0 0 0 a (b )(2 ) and ( c ) ( 2 ) )  of Title II.

Section 201(b)(2) of Title II of the Civil Rights Act 
of 1964 provides:

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

# * #
(2) any restaurant, cafeteria, lunchroom, lunch 

counter, soda fountain, or other facility principally 
engaged in selling food for consumption on the 
premises, including, but not limited to, any such 
facility located on the premises of any retail estab­
lishment; or any gasoline station.

The district court held that Lake Nixon was not covered 
by this section since its food sales were not its principal 
business—but only “ adjunct to the principal business of



9

making recreational facilities available to the public.” Ob­
viously, Lake Nixon is a recreation area and not a restau­
rant. However, it is appellants’ position that the snack 
bar located on the premises of Lake Nixon is clearly 
covered by §201 (b)(2). A  simple reading of this section 
indicates that a lunch counter “ located on the premises 
of a retail establishment” (using the language of the 
statute) is covered by Title II. Yet, the principal business 
of a retail establishment is not the sale of foods. Likewise, 
the lunch counter at Lake Nixon cannot be exempted simply 
because the establishment as a whole is not engaged in 
the sale of foods. In Evans v. Laurel Links Inc., 261 
F.Supp. 474 (E.D. Va. 1966), a district court found a lunch 
counter located on a golf course to be covered by §201 (b) (2), 
although it accounted for only 15% of the gross receipts 
of the golf course.

Hamburgers, hot dogs, soft drinks and milk are sold 
at the Lake Nixon snack bar. The court took judicial 
notice that the principal ingredients going into the bread 
sold and some of the ingredients in the soft drinks were 
produced and processed outside of the State of Arkansas. 
Thus, since a substantial portion of the food sold has tra­
velled through interstate commerce, the operations of the 
snack bar affect commerce within the meaning of §201(c) (2) 
of Title II. See Katzenbach v. McClung, 379 U.S. 294.

Approximately 100,000 people use the facilities at Lake 
Nixon each season. Located on Route 1, a few miles out­
side of Little Rock, Arkansas, it is comprised of 232 acres. 
The court found that some out-of-state people spending 
time in or around Little Rock have probably used the 
facilities and since membership cards were routinely dis­
tributed without the name and address of the member 
being inserted on the cards it is very possible that such



10

travellers obtained membership. Appellee recognized such 
a possibility. Appellee did not in any way discourage or 
prohibit interstate travellers from using Lake Nixon. By 
offering the facilities, including the snack bar, to the gen­
eral public it was offering to interstate travellers as well. 
Therefore, the snack bar’s operations can be said to affect 
commerce because it “ offers to serve” interstate travellers.1 
The Supreme Court found such an offer to the general 
public sufficient for coverage in Hamm v. City of Rock Hill, 
379 U.S. 306.

The snack bar is engaged in selling food for consumption 
on the premises; a substantial portion of the food has 
travelled through interstate commerce and it offers to sell 
to the general public. It is therefore clearly a facility 
covered by §201 (b)(2) of Title II of the Civil Rights 
Act of 1964.

B. The snack bar is located within the premises of Lake 
Nixon, therefore, the whole of Lake Nixon is a covered 
establishment.

Section 201(b)(4) of Title II of the Civil Rights Act of 
1964 provides:

Each of the following establishments which serves 
the public is a place of public accommodation within 
the meaning of this title if its operations affect com­
merce, or if  discrimination or segregation by it is 
supported by State action:

# # #
(4) any establishment (A )(i)  which is physically 

located within the premises of any establishment 
otherwise covered by this subsection, or (ii) within

1 There is no substantiality requirement in the “ offers to serve”  portion 
of §201 (e) (2). Hamm v. City of Bock Hill, 379 U.S. 306.



11

the premises of which is physically located any .such 
covered establishment, and (B) which holds itself 
out as serving patrons of such covered establishment.

The district court construed this section as contemplating 
at least two distinct and separate establishments, one of 
them covered by the Act, operating from the same general 
premises. It viewed Lake Nixon as a single unit operation 
with the sales of food and drink being merely adjunct to 
the principal business of making recreational facilities 
available to the public and therefore not covered by 
§201(b)(4). Pinkney v. Meloy, 241 F.Supp. 943 (M.D. 
Fla. 1965) was cited by the court in support of its con­
clusion. It is appellants’ position that this is a completely 
erroneous construction of the statute; one that ignores 
the legislative history and creates anomalous results.

Admittedly, Pinkney involved two establishments—a 
barbershop and a hotel under different managements. The 
court found the hotel to be an establishment covered by 
Title II and by the operation of §201 (b)(4) included the 
barbershop in this coverage. However, Pinkney does not 
represent the only possible interpretation of the coverage 
of §201 (b) (4) of Title II. In Pinkney, the court recognized 
that §201 (b)(4) of the Act originally used the term “ in­
tegral part” rather than physically located within as fol­
lows :

Prior to the adoption of this section it was noted 
in U.S. Code Cong, and Ad. News (1964), p. 2358:

“ The term ‘integral part’ is defined * * * as mean­
ing physically located on the premises of an estab­
lishment subject to subsection 3(a) [substantially 
similar to 201 of the final bill] * ". Thus, in all 
instances, to be an integral part, the establishment



12

would have to be physically located on the premises 
of an included establishment or located contiguous 
to such an establishment. A hotel barbershap or 
beauty parlor would be an integral part of the hotel, 
even though operated by some independent person 
or entity.”  At 947 (Emphasis added.)

As the emphasized language indicates, Congress contem­
plated that a single management enterprise would cer­
tainly be covered by §201(b)(4) and if operated by an 
independent person and if integral to the total operations, 
the entire facility would likewise be covered. Therefore, 
Congress was most immediately directing its attention 
to single management establishments contrary to the dis­
trict court’s finding. I f  the district court’s interpretation 
were to prevail, the anomalous result would be that a hotel 
operating its own barbershop could somehow discriminate 
by refusing to cut a Negro’s hair, while an independently 
owned shop within the hotel could not so discriminate. 
Or, a lunch counter in a retail establishment not otherwise 
covered could discriminate if owned by the retail store, 
but not if operated by a separate owner. Certainly Con­
gress did not intend such a situation to be permissible.

The following statements by Senator Magnuson also 
make it clear that the existence of an eating facility covered 
by Title II within a dominant establishment which itself 
would not otherwise be covered causes the whole establish­
ment to be covered.

The specific mention in section 201(b) of eating facil­
ities ‘located on the premises of any retail establish­
ment’ is aimed principally at such facilities in depart­
ment and variety stores.

^



13

The best example of this fourth category of section 
201(b) are a barbershop located in a hotel which 
holds out its services to guests and a department 
store which maintains a lunchroom within its premises.

A department store or other retail establishment would 
not be subject as such to the restrictions of Title II. 
But if it contains a public lunchroom or lunch counter, 
it would be required to make all its facilities, not 
simply its eatery facilities, available on a nondis- 
criminatory basis. 110 Cong. Rec. 7406-07.

Also see similar statements by Representative Celler, Chair­
man of the Judiciary Committee which reported the bill. 
110 Cong. Rec. 1520.

Appellants submit that Evans v. Laurel Links, Inc., 261 
F.Supp. 474 (E.D. Ya. 1966) is a more reasoned inter­
pretation of the meaning and scope of §201 (b)(4) of 
Title II. In that case, the court found that a lunch counter 
located in the clubhouse of a golf course was an eating 
facility within the meaning of §201 (b)(2) and that the 
location of the lunch counter on the premises brought the 
entire golf course within the act by the operation of 
§201(b)(4).

Neither the legislative history nor the clear language 
of the statute justifies the district court’s decision to 
exclude the snack bar at Lake Nixon and consequently 
the entire facility, because the sale of food is not the 
major concern of Lake Nixon. The snack bar at Lake 
Nixon is no different in character than an eating facility 
in a retail store clearly covered by §201 (b )(2 ), and this 
facility causes the entire store to be covered by §201 (b) (4) 
of Title II. Appellants submit that this Court should like­
wise find Lake Nixon to be a covered establishment under 
Title II of the Civil Rights Act of 1964.



14

II.

Lake Nixon is a “ Place of Entertainment”  Whose 
Operations Affect Commerce Within the Meaning of 
Sections 2 0 1 ( b ) ( 3 )  and 2 0 1 ( c ) ( 3 )  (42  U.S.C.
§§2000a(b ) (3 )  and (c) ( 3 ) )  of Title II of the Civil 
Rights Act of 1964.

It is appellants’ position that the Court should find that 
Lake Nixon is covered by §201(b) (4) of Title II ; however, 
it is also submitted that Lake Nixon is a “place of enter­
tainment” covered by §201 (b) (3) of Title II.

A. The dichotomy between spectator and participative ac­
tivity is unrealistic and not supported by the legislative 
history of Title II or by the case law with respect to the 
coverage of state public accommodations laws.

Section 201(b)(3) of Title II of the Civil Eights Act of 
1964 provides:

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

(3) any motion picture house, theater, concert 
hall, sports arena, stadium or other place of exhibi­
tion or entertainment; and

The district court held that Lake Nixon’s activities did 
not constitute “ entertainment” within the meaning of 
§201(b)(3). The court accepted the dichotomy between 
spectator and exhibitive activities with respect to the 
meaning of “ entertainment” adopted by Robertson v. John­
ston, 249 F.Supp. 618 (E.D. La. 1966) and Miller v. Amuse­



15

ment Enterprises, Inc., 239 F.Supp. 323 (E.D, La. 1967). 
It is appellants’ position that the Eastern District of 
Louisiana as well as the court below have thus miscon­
strued the intent and clear language of the Act.

Lake Nixon offers swimming, boating, picnicking, sun­
bathing and miniature golf. There are also two juke boxes 
which patrons may simply listen to or dance. Lake Nixon 
also regularly presents dances on Friday nights and in­
vites bands to play. The distinct court held that these 
activities were not “ entertainment” since they are essen­
tially participative in nature. This technical and narrow 
approach is not justified by the legislative history of 
Title II.

There is no language to be found in the legislative his­
tory of Title II which specifically includes or excludes a 
facility like Lake Nixon from the meaning of the term 
“ entertainment.” There is also no evidence in the legis­
lative history which shows that Congress intended the 
coverage of §201 (b)(3) to be limited to exhibitive enter­
tainment. Indeed, the following statement of Senator 
Magnuson, floor manager of Title II, indicates that Con­
gress did not intend §201 (b)(3) to be limited to motion 
picture theaters (which are exhibitive activities) to the 
exclusion of participative activities:

These principles [restriction of the flow of goods 
through interstate commerce] are applicable not merely 
to motion picture theaters but to other establishments 
which receive supplies, equipment or goods through 
the channels of interstate commerce. 110 Cong. Ree. 
7402 (emphasis added).

In calling up the Civil Rights Act of 1964 for considera­
tion by the House, Representative Madden spoke of the Act



16

as “ the first really comprehensive civil rights legislation 
in our history.” 2 3 Representative Daniels spoke thusly:

Racial discrimination in places of public accommoda­
tions is one of the most irritating and humiliating 
forms of discrimination the Negro citizen encounters 
and one which requires immediate remedy. 110 Cong. 
Rec. 1511.

He viewed Title II as designed to eliminate these injustices.

Representative Celler, Chairman of the House Judiciary 
Committee, which reported out the bill and who was one 
of the chief proponents of the Civil Rights Act of 1964 in 
Congress, stated that Title II was intended to apply what 
“ . . . thirty states anĉ  the District of Columbia are now 
doing to the rest of the states so that there shall be no 
discrimination in places of public accommodations pri­
vately owned . . .” 110 Cong. Rec. 1518.3 These statements 
show that Congress sought to eliminate racial discrimina­
tion in all places of accommodation open to the general

2 110 Cong. Rec. 1511.

3 Five states have public accommodations laws which specifically cover 
amusement parks.

Pennsylvania: Pa. Stat. Ann., Tit. 18, §4654 (1963); New Jersey: 
FJ Stat. Ann., §§10:1-2 to 10:1-7 (1960), §§18:25-1 to 18:25-6 (1964 
Snpp.) ; New York: NY Civil Rights Law (McKinney ed.) Art. 4, 
§§40 and 41 (1948, 1964 Supp.), Exec. Law, Art. 15, §§290 to 301 
(1951, 1964 Supp.), Penal Law, Art. 46, §§513 to 515 (1944); New 
Mexico: NM Stat. Ann., §§49-8-1 to 49-8-7 (1963 Supp.); Rhode Island: 
RI Gen. Laws Ann., §§11-24-1 to 11-24-6 (1956).

Seven state public accommodations laws cover skating rinks.
Supra, note 10 and Illinois: 111. Ann. Stat. (Smith-Hurd ed.), c. 38, 

§§13-1 to 13-4 (1964), c. 43, §133 (1944); and Alaska: Alaska Stat., 
§§11.60.230 to 11.60.240 (1962).

The activities covered by these state laws are clearly participative and 
not just of the passive spectator type.



17

public, if their operations have an effect upon interstate 
commerce.4 5

Title II should be liberally construed.6 The Civil Rights 
Act of 1964 should be given the same liberal construction 
that the courts afforded the Civil Rights Act of 1957.* 
And this Court should give §§201(b)(3) and (c)(3 ) the 
same broad application that other appellate courts have 
given Title II in other situations.7

Webster’s dictionary defines entertainment as “ that 
which engages the attention agreeably, amuses, or diverts, 
whether in private as by conversation, etc., or in public.” 
The district court ignored the plain meaning of Section 
201(b)(3) in construing “ entertainment” to embrace only 
exhibitive activity. The Court’s reliance on the principle 
of ejusdem generis to reach this construction was mis­
placed.

The contention that ejusdem generis requires a court to 
construe a state public accommodations statute to exclude 
from coverage participative activities (i.e., Lake Nixon) 
because the types of activities which are specifically cov­

4 Cf. McClung v. Katzenbach, 233 F.Supp. 815, 825 (N.D. Ala. 1964), 
rev’d. 379 U.S. 294, in which, although the court declared the act un­
constitutional, concluded that it was “ simple truth” that Congress in­
tended “ to put an end to racial discrimination in all restaurants.”

5 Cf. Lambert v. Mandel’s of California, 156 Cal. App. Rep.2d 855 
(1957)—state public accommodations law is to be given a “ liberal, not 
a strict, construction” ; similarly, Fraser v. Robin Dee Day Camp, 44 
N.J. 480 (1965).

6 United States v. Alabama, 304 F.2d 583, 591 (5th Cir. 1962), ail’d. 
371 U.S. 37.

7 Hamm v. City of Rock Hill, 379 U.S. 306—Title II applied retro­
actively to invalidate “sit-in”  convictions obtained prior to its enactment; 
Rachel v. Georgia, 384 U.S. 780— Title II read broadly to authorize 
removal of State “sit-in” prosecution to federal courts although other 
types of prosecution are not removable; compare City of Greenwood v. 
Peacock, 384 U.S. 808, and Dilworth v. Riner, 343 F.2d 226 (5th Cir. 
1965).



18

ered by the statute are exhibitive in nature has been 
presented in a number of jurisdictions. The courts have 
generally rejected this contention. The following cases 
are good examples of the ways this issue has been 
presented.

In Amos v. Prom, Inc., 117 F.Supp. 615, 623 (N.D. Iowa 
1954) the Court construed Iowa’s public accommodations 
law8 which covered, among other places, “ theaters and 
other places of amusement” as being applicable to a public 
ballroom or dance hall. This was done in the face of a 
contention by the defendant that the term other places of 
amusement should be limited to exhibitive entertainment 
because of the principle of ejusdem generis. Stiska v. 
City of Chicago, 405 111. 374 (1950) is another example 
of a court’s refusal to limit amusement to exhibitive enter­
tainment although the term amusements had been preceded 
by “theatricals and other exhibitions, shows . . .” in its 
statute and although defendants who were operators of 
bowling alleys, billiard parlors and ballrooms claimed that 
their establishments were not covered by a state statute 
which conferred authority upon municipalities to “ license, 
tax, regulate or prohibit . . . theatricals and other exhibi­
tions, shows and amusements.” In a similar case involving 
a municipal licensing statute, Central Amusement Com­
pany v. District of Columbia, 121 A.2d 865 (Mun. Ct. App. 
D.C. 1956), the types of activities which were specifically 
enumerated in a state licensing statute were also only 
exhibitive in nature. The court held that a bowling alley 
could be construed to fall within the meaning of that 
statute.

However, even if the district court’s dichotomy were 
adopted, Lake Nixon would still be a place of entertain­

8 Iowa Code Ann. §§735.1 and 735.2 (1950).



19

ment since many of its activities are of the spectator type. 
Certainly not all of Lake Nixon’s patrons dance to the 
music of the two juke boxes—many passively (to use the 
standard of the court below) stand by and listen. Likewise 
not all persons actually dance at the dances regularly 
sponsored at Lake Nixon—many passively stand by and 
listen. Therefore, even within the confines of the district 
court’s narrow interpretation, Lake Nixon is a place of 
entertainment within the meaning of §201 (b)(3).

B. The operations of Lake Nixon affect commerce within the 
meaning of Section 2 0 1 (c ) (3 )  of Title II.

Section 201(c) (3) provides:

(c) The operations of an establishment affect com­
merce within the meaning of this title if . . . (3) in 
the case of an establishment described in paragraph 
(3) of subsection (b), it customarily presents films, 
performances, athletic teams, exhibitions, or other 
sources of entertainment which move in commerce;

The district court narrowly construed §201 (c)(3 ) and 
held that Lake Nixon’s operations do not affect commerce 
because they do not move (meaning continuously move) 
in interstate commerce. The fact that the entertainment 
apparatus had moved in interstate commerce was not 
sufficient for the district court. It is submitted that the 
court has thus disregarded the legislative intent and the 
established notions of what constitutes interstate commerce.

In a section-by-section analysis of Title II, the Senate 
Report (Judiciary Committee) made reference to what 
constitutes an effect on commerce within the meaning of 
§201(c)(3) (42 U.S.C. §2000a(c)(3)) in the following way:

These public establishments would be within the pur­
view of the Bill even though at any particular time



20

the sources of entertainment being provided do not 
move in interstate commerce. It is sufficient if the 
establishment “customarily” presents entertainment 
that has moved in interstate commerce. I f  this test is 
met then the establishment would be subject to the 
Bill at all times, even if current entertainment had 
not moved in interstate commerce. 2 U.S. Cong. Adm. 
News 2357 (1964) (emphasis added).

If this is an indication of legislative intent, it is clear that 
if the sources of entertainment had moved in interstate 
commerce, the establishment would affect commerce within 
the meaning of §201(c)(3) and it would not be necessary 
to show a continuous movement.

This interpretation was adopted in Twitty v. Vogue 
Theatre Corp., 242 F.Supp. 281, 287 (M.D. Fla. 1965). 
In this case the defendant contended that since the films 
had come to rest, the establishment in question did not 
affect commerce within the meaning of §201 (c)(3). This 
contention was rejected and the court stated, “ . . . but the 
act does not restrict the time for determining the nature 
of the movement of the film. . .

It is also clear that if an item has been shipped through 
the channels of interstate commerce, although it has come 
to rest it is still in commerce in the sense that Congress 
still retains authority to regulate with respect to it. United 
States v. Sullivan, 332 U.S. 689; A.B.T. Sightseeing Tours, 
Inc. v. Gray Line, 242 F.Supp. 365 (S.D. N.Y. 1965).

The fifteen (15) paddle boats available for use at Lake 
Nixon are leased from a company in Bartlesville, Okla­
homa; the two “yaks” were purchased from this same 
company. The two rented juke boxes were manufactured 
outside of the State of Arkansas. Therefore, most of the



21

sources of entertainment available at Lake Nixon have 
come from outside of the State of Arkansas. Admittedly, 
if viewed in isolation, the volume of these instruments 
supplied from out of state is insignificant when compared 
with the total movement of similar items through com­
merce ; however, as the Attorney General testified:

We intentionally did not make the size of the busi­
ness the criterion for coverage because we believe that 
discrimination by many small establishments imposes 
a cumulative burden on interstate commerce.9

In Katzenbach v. McClung, 379 U.S. 294, the Supreme 
Court, citing Wickard v. Filburn, 317 IT.S. I l l ,  refused to 
limit itself to an examination of the individual establish­
ment’s contribution to interstate commerce but accepted 
the test of commerce enunciated in the Filburn case as 
being “his contribution, taken together with that of many 
others similarly situated.” At 127-128.

I f  this Court is to effectuate the intent of Congress it 
must find that Lake Nixon is a public accommodation cov­
ered by Title II of the Civil Rights Act of 1964.

9 Hearings on S.1732 before the Senate Committee on Commerce, 88th 
Cong., 1st Sess. (1963) at 24.



22

CONCLUSION

W herefore, appellants pray that the judgment below
be reversed.

Respectfully submitted,

John W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas 12206

Jack G-reenberg 
Michael Meltsner 
Gabrielle A. K irk

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



Certificate o f Service

This is to certify that on t h e ------ day of June, 1967,
I served a copy of the foregoing Appellants’ Brief upon 
Sam Robinson, 115 East Capitol Street, Little Rock, Ar­
kansas, by mailing a copy thereof to him at the above 
address via United States mail, postage prepaid.

Attorney for Appellants



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