Selden v Topaz 1 2 3 Lounge Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 30434

DAVTD SELDEN, President 
of the American Federation 
of Teachers, AFL-CIO, et al.,

Appellants,
versus

TOPAZ 1-2-3 LOUNGE, INC., 
et al.,

Appellees.

On Appeal from The United States District Court 
For The Eastern District of Louisiana,

New Orleans Division

BRIEF FOR APPELLANTS

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER 
CONRAD K. HARPER

10 Columbus Circle 
New York, N.Y. 10019

ROBERT F. COLLINS 
NILS R. DOUGLAS 
LOLIS E. ELIE 
CHARLES E. COTTON 

344 Camp Street 
New Orleans, Louisiana 70130

Attorneys for Appellants



I N D E X

Page

Issues Presented . . , 
Statement of the Case 
Statement of Facts . . 
Argument—

I.

II.

The Equal Right to Make and Enforce Contracts 
and to Have An Interest in Property, 
Guaranteed by 42 U.S.C. §§ 1981 and'1982, 
Includes the Right of Blacks to Have Access 
to The Services and Accommodations Offered 
The Public by a Bar or Tavern in The Sale of Beverages ......................
Topaz and Kelly's Lounges Are Places of 
Entertainment As Defined by Title II of the 1964 Civil Rights Act .........

1
3
5

13Conclusion .............
Certificate of Service . 13



XI
Tables of Authorities

Cases:
Bush v. Kaim, 297 F. Supp. 151 (N.D. Ohio, 1969) . .
Central Presbyterian Church v. Black Liberation Front, 
303 F. Supp. 894 (E. D. Mo., 1969) .................

Civil Rights Cases, 109 U.S. 3 (1883) ...............
Coger v. The North West Union Packet Co., 37 Iowa 145,

Page 
6, 9

9
7

8
Contract Buyers League v. F. F. Investment, 300 F. Supp. 
210 (N.D. 111., 1969), aff'd 420 F.2d 119] (7fh Cir. 1970)............................

Cuevas v. Sdrales, 344 F.2d 1019 (10th Cir. 1965) cert 
denied 382 U.S. 1014 (1966)..........................’

Daniel v. Paul, 395 U.S. 298 (1969) .................
Fazzio Real Estate Co. v. Adams, 396 F.2d 146 
(5th Cir. 1968) ..............................

Gannon v. Action, 303 F. Supp. 1240 (E.D. Mo. 1969)
Jones v. Mayer Co., 392 U.S. 409 (1968)......... 6, 7, 8,
Katzenbach v. Me Clung, 379 U.S. 294 (1964) ...........
Miller v. Amusement Enterprises, Inc., 394 F.2d 342 
(5th Cir. en banc, 1968), overruling 391 F.2d 86 (5th Cir. 1 9 6 7 ) ..................................

Ray v. Deas, 112 Ga. App. 191, 144 S.E.2d 468 (1965) .
Scott v. Young, 421 F.2d 143 (4th Cir. 1970) ......... 9,
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) . 8,
Terry v. Elmwood Cemetery, 307 F. Supp. 369 
(N.D. Ala. 1969) ......................

12

11

12

9
9
8

11

6
11

9

9



Ill

Page

Tyson v. Cazes, 363 F.2d 742 (5th Cir. 1966)
(e!d !SS ?  1965r ? a?i?g.f?r m°°tneSS' 238 F.'supp. 937

12
Vallee v. Stengel, 176 F.2d 697 (3rd Cir. 1949) . . .  6
Walker v. Pointer, 304 F. Supp. 56 (N.D. Tex. 1969) . 9

Constitutional Provisions:
Commerce Clause, Art. 1, §8, cl. 3 * * * * * • • •  J
First Amendment . ................................  3
Fourteenth Amendment ........... * * • • •  • • • •  3
Thirteenth Amendment . . .  7 Q , _* • • -*-/ ^#0/ 1 , 8

Statutes:

Civil Rights Act of 1866, 14 Stat. 27 . . 3, 4, 6, 8, 9
28 U. S. C. 
28 U. S. C. 
28 U. S. C. 
28 U. S. C. 
28 U. S. C. 
42 U. S. C. 
42 U. S. C. 
42 U. S. C. 
42 U. S. C. 
42 U. S. C.

§ 1331 ...........
§ 1332 ...........
§ 1343(4) . . . .
§ 2201 ............

§ 2202 ..........................

§ 1981 ...........
§ 1982 ...........
§ 2000a(§201(a)) .
§ 2000a(b)(§201(b)) 
§ 2000a(c)(§201(c))

........... 3

........... 3
......... 3
• • • • 2, 3
........... 3

1/ 3, 4, 5, 6
• 1, 4, 5, 6
• • 2, 3, 9

........10

........ 10



IV

42 U. S. C. 2000d (c) (§204) ( c ) ...................... 2
Uniform Commercial Code, §2-314 ...................  6

Miscellaneous:
Cong. Globe, 39th Cong., 1st Sess. 43, 322, 475,
599; Appendix 6 9, 183, 936 ........................ 8

Flack, H., The Adoption of the Fourteenth 
Amendment (1908) ................................... 8

Page



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 30434

DAVID SELDEN, President 
of the American Federation 
of Teachers, AFL-CIO, et al..

Appellants,
versus

TOPAZ 1-2-3 LOUNGE, INC., et al.,
Appellees.

On Appeal from The United States District Court 
For The Eastern District of Louisiana,

New Orleans Division

BRIEF FOR APPELLANTS 

Issues Presented

1. Appellants were denied service in Topaz 1-2-3 
Lounge and Kelly's Lounge solely because (a) they were black 
or (b) they were whites in the company of blacks. Have 
appellants been denied the same right to make and enforce 
contracts and have an interest in property, as is enjoyed by 
white citizens, in violation of the Thirteenth Amendment and 
an Act of Congress, 42 U.S.C. §§ 1981 and 1982?

1



•*-* Whether bars or taverns such as Topaz 1-2-3 
Lounge and Kelly's Lounge which serve no food but are open to 
the general public and proviso axcohoiic beverages for con­
sumption on the premises are places of entertainment within 
the scope of Title II of the 1964 Civil Rights Act, 42 U.S.C. 
§ 2000a.

1/ Appellees Topaz 1-2-3 Lounge and its President urged
below that this cause was moot because of the enactment, 
subsequent to the filing of this action, of a New Orleans 
public accommodations ordinance. The district court held 
the case was not moot on the grounds that it could none­
theless fashion proper injunctive or declaratory relief; 
that the ordinance could be repealed or not enforced and 
appellees could revert to former discriminatory practices 
in a city having long standing racially discriminatory 
practices; that the ordinance provides only for criminal 
penalties and would not affect the facts, antedating the 
ordinance, which gave rise to this action (A. 67-70).
The district court also concluded that as to Kelly's' 
Lounge, whose operator was a defendant below, there was 
no evidence regarding whether Kelly's— unlike Topaz— has 
continued to discriminate since the enactment of the ordinance (A. 62, 68).

It is manifest that insofar as the amended complaint 
sought declaratory relief, the continuing controversy 
between the parties renders the case not moot and declar­
atory relief may be had "whether or not further relief is 
or could be sought." 28 U.S.C. § 2201. Furthermore, the 
fact that a local ordinance has been enacted does not 
defeat the right of United States citizens to invoke the 
protection of federal law in attacking racial discrimina- 
tion. Indeed, Title II of the 1964 Civil Rights Act ex­
plicitly recognizes that local law may proscribe racial 
discrimination, § 204(c). Even where such a local law 
exists, however, the remedy is not dismissal of the action, 
but merely a delay of 30 days prior to filing an action in 
order to permit written notice of the discriminatory prac­
tice to the appropriate local authority. Such a remedy was 
not available here, of course, because the ordinance was 
enacted some three months after the original complaint was filed.

2



StatOt-;Oil v ne Case

!."his is an. appea 1 from tie Julv f, l Q7n ■ >e oU^Y b ' judgment of
M e  District court for th, Eastern D m ,  riot of Louisiana 
dismissing appellants' amended complaint (a . 81). Plaintiffs- 
appeilants instituted this action^on September 23, 1969,
against (a) Topaz 1-2-3 Lounge; (b, the lessor and lessee of
the premises for Kellv's rnmno. t >r * e n y  s Lounge; (c) an agent of both lounges;
<d) the mayor of New Orleans (A. 5-6, 22-23). The original 
and amended complaints charged racial discrimination and 
sought declaratory and injunctive relief (a . 1-13, i8-30).
By the amended complaint, filed October 7, 1969, defendants 
were changed to include (a) Topaz 1-2-3 lounge, and its 
president and sub-lessee; (b) an agent of both Topaz and 
Kelly's lounges; and (c) the mayor of New Orleans (A. 22-23).

2/

3/ sjrlSS'1 s sirs-
2000a; Art I f  3) of S  n u  ^  U -S *C * §§ 1981'
and the Firs^ §T h i r L ^ - £  ® a 6d States Constitution; ne tirst, lhirteentn, and Fourteenth Amendments

3



The amended complaint also sought relief from racial 
discrimination for all blacks as a class (A. 20).

By subsequent agreement of the parties, the owner 
and lessor of Kelly's Lounge and the agent of both lounges 
were voluntarily dismissed from the action (A. 39-40, 53). 
Count II of the amended complaint seeking damages was also 
voluntarily dismissed (A. 53). Owing to the enactment of a 
New Orleans public accommodations ordinance effective 
January 1, 1970, the mayor was also voluntarily dismissed as 
a defendant (A. 54, 80). Thus the present action is against 
only Topaz 1-2-3 Lounge and its president, and the operator 
of Kelly's Lounge (A. 54).

The case was submitted on stipulations and 
affidavits. On June 30, 1970, District Judge Boyle, in a 
memorandum opinion, held that the service and accommodations 
offered to the public by a bar or tavern which does not serve 
food or offer entertainment is not within the ambit of the 
Civil Rights Act of 1964 nor the Civil Rights Act of 1866, 
now codified in part as 42 U.S.C. §§ 1981 and 1982 (A. 63-74). 
The operator of Kelly's Lounge defaulted in appearing or 
defending the action but he nonetheless was given the benefit, 
by the district court, of dismissal of the complaint (A. 66, 
74). From the judgment entered July 6, appellants noticed 
this appeal July 20, 1970 (A. 81-82).

4



3 V t.__

On August 1 6 , 1969, while attending the American 
Federation of Teachers Convention i.n New Orleans, Louisiana, 
black appellants Hurt and Parrish sought service at Topaz 
1-2-3 Lounge and Kelly1s Lounge (hereinafter referred to as 
Topaz and Kelly's) located in New Orleans, Louisiana. They 
were told by barmaids at both lounges that they could not be 
served nor could they be sold anything to take out because 
they were black. Hurt and Parrish left immediately and went 
to tell white appellants Roch and Nicholas what had occurred. 
All four were from outside the State of Louisiana. The four 
of them returned to Kelly's together and sought service.
Again they were told by the barmaid that blacks could not be 
served. White appellants Roch and Nicholas told the barmaid 
that black appellants Hurt and Parrish were in their 
company; she screamed, "We do not serve colored and we do
not serve Nigger Lovers." (A. 59). She refused to serve them 
and they left.

ARGUMENT 
I.

The Equal Right to Make and Enforce 
Contracts and to Have An Interest 
in Property, Guaranteed by 42 U.S.C. 
§§ 1981 and 1982, Includes the Right

a„ lH? G,Sta"enient °f facts is based upon uncontradicted 
Koch 5 6 - 6 2 ? ^  ntS Parrish' Nich°las, Hurt and

5



of Blacks to Have Access to The 
Services and Accommodations Offered 
The Pub 1 ic By A Bar or Tavern in 
The Sale of Beverages.

The first sentence of the Civil Rights Act of 1866, 
enacted pursuant to the Thirteenth Amendment, provided, inter 
alia, for citizens to have the same right to make and enforce 
contracts and have an interest in property as is enjoyed by 
wfiite citizens. These rights are now embodied in 42 U.S.C.
§§ 1981 and 1982. Black and white appellants have been 
denied these rights because the appellee lounges barred them 
from purchasing beverages and services solely because they 
were black or in the company of blacks. The purchase of 
beverages and services at Topaz 1-2-3 Lounge and Kelly's 
Lounge is a contract, like the purchase of food, entitling 
one to use and enjoy personal property. See Uniform 
Commercial Code, § 2-314;-^//Ray v. Peas. 112 Ga. App. 191,
144 S.E.2d 468, 469 (1965); Vallee v. Stengel. 176 F.2d 697 
(3rd Cir. 1949). Appellants have contractual and property 
rights derived from the 1866 Act which are not dependent on 
state law. See Jones v. Mayer Co.. 392 U.S. 409 (1968); Bush 
v_^_Raim, 297 F. Supp. 151, 160 (N.D. Ohio 1969). Denial of 
these contractual and property rights on racial grounds 
violates rights secured by the 1866 Civil Rights Act. See 
Jones v. Mayer, supra, 392 U.S. at 426, 436, 439-41 (1968).

5/ "Under this section of the UCC the serving for
value of food or drink to be consumed either on the 
premises or elsewhere is a sale."

6



As the Supreme Court held in Jones. "At the very least, the 
that Congress is empowered to secure under the 

r̂ ’1̂ r*'een'th Amendment includes the freedom to buy whatever a 
white man can buy . . . "  392 U.S. at 443.

Notwithstanding the principles enunciated above, 
the district court held the 1866 Civil Rights Act afforded 
no relief. The district court reasoned that Congress, 
abiding by the Civil Rights Cases, 109 U.S. 3 (1883), enacted 
the 1964 Civil Rights Act but excluded public accommodations 
serving no food from the ambit of the 1964 legislation 
(A* 71-74). The district court's holding is erroneous 
because (a) it gives unwarranted effect to the Civil Rights 
Cases,; (b) it ignores the fact that the 1866 Civil Rights 
Act was resuscitated on Thirteenth Amendment grounds in Jones, 
some four years after the 1964 Civil Rights Act; (c) we argue 
below (Argument II) that taverns serving no food are nonethe­
less subject to the 1964 Civil Rights Act as places of 
entertainment.

The holding of the Civil Rights Cases invalidated 
the 1875 Civil Rights Act as it applied to public accommoda­
tions. in the context of state action, the majority speci­
fically approved the 1866 Act in obiter dictum. 109 U.S. at 
16-18. Any intimation in the Civil Rights Cases that 
Congress could not constitutionally proscribe racial dis­
crimination in public accommodations has been superseded by

7



judicial approval of the 1964-Civil Rights Act, e.g., Katzenbach
v. Me Clung, 379 U.S. 294 (1964). Furthermore Jones and
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) approve and
apply the 1866 Act, as a statutory enforcement of the Thirteenth
Amendment, to property transactions between individuals and
corporations. Jones, Sullivan, and the legislative history of

6/the 1866 Act- demonstrate a Congressional purpose to outlaw 
racial discrimination where, as here, access to public 
accommodations concerns rights of contract and property.

6/ Much of the legislative history of the 1866 Civil
Rights Act found persuasive in Jones is applicable here 
to show that the Act was intended to make blacks the 
practical equal of whites. 392 U.S. at 420-40 and 
accompanying notes. The sponsor of the 1866 Act,
Senator Trumbull, repeatedly affirmed the Act's inten­
tion to give blacks the rights to go or come at pleasure 
and to buy and sell without discrimination. Cong. Globe,
39th Cong., 1st Sess. 43, 322, 475, 599. The opponents 
of the Act and its companion bill, the Freemen's Bureau 
Bill, pointed out the Act would permit commingling of 
whites and blacks in hotels, theaters and public conveyances. 
Cong. Globe, 39th Cong., 1st Sess. at 541 (remarks of 
Rep. Dawson); id. at Appendix 183, 936 (remarks of Sen.
Davis) ; _id. at Appendix 69 (remarks of Rep. Rousseau) .
No one disputed this view. Furthermore, in the early years 
following the Act's passage, the common view of its friends 
and enemies that it applied to public accommodations and 
conveyances was generally accepted by various courts. H. 
Flack, The Adoption of Fourteenth Amendment 46-47, 52-54 
(1908); Coger v. The North West Union Packet Co., 37 Iowa 
145, 153-54 (1873). Cf. "That the [1866 Civil Rights] 
bill would indeed have so sweeping an effect [in breaking 
down all discrimination between whites and blacks] was 
seen as its great virtue by its friends and as its great 
danger by its enemies but was disputed by none." Jones v. 
Mayer Co., supra, 392 U.S. at 433 (footnotes omitted).

8



In addition,, the district court wholly overlooked 
several cases decided subsequent to Jones holding that the 1866 
Act reaches every racially motivated refusal to sell or rent 
property. Scott v. Younc7, 421 F.2d 143 (4th Cir. 1970); 
Contract Buyers League v. F. F. Investment. 300 F. Supp. 210 
(N.D. 111. 19691 aff'd 420 F.2d 1191 (7th Cir. 1970); Bush v . 
Kabri, 297 F. Supp. 151 (N.D. Ohio 1969); Terry v. Elmwood 
Cemetery, 307 F. Supp. 369 (N.D. Ala. 1969). As is clear from 
■ -ullivan, whites, as here, who are victimized because of their 
support for blacks, are protected by the 1866 Civil Rights Act. 
—  — ^ ° . ffialker v. Pointer, 304 F. Supp. 56 (N.D. Tex. 1969) ; 
Gannon v. Action, 303 F. Supp. 1240 (E.D. Mo. 1969); Central 
Presbyterian Church v . Black Liberation Front. 303 F. Supp. 894 
(E.D. Mo. 1969).

Finally, insofar as the district court concluded 
that the 1866 Act did not apply to taverns because of possible 
redundancy or conflict with the 1964 Act (A. 71-74) Sullivan 
is dispositive in holding that the two Acts are independent and 
not inconsistent, 396 U.S. at 237-38.

II.
Topaz and Kelly's Lounges Are Places 
of Entertainment As Defined by Title 
II of the 1964 Civil Rights Act.

Section 201(a) of Title II of the 1964 Civil Rights 
Act prohibits discrimination in public accommodations. An

9



establishment is a "place ot public accommodation" if its 
operations "affect commerce" (§ 201(b)) ana if it is a 
"place of exhibition or entertainment." (§ 201(b)(3)). Such 
a place of entertainment affects commerce if "it customarily 
presents films, performances, athletic teams, exhibitions, or 
other sources of entertainment which move in commerce."
(§ 201(c)(3)). Topaz and Kelly's Lounges are places of 
entertainment within the contemplation of Title II because 
they are open to the public, including persons travelling 
interstate, which public provides its own entertainment.

In Miller v. Amusement Enterprises, Inc., 394 F.2d 
342 (5th Cir. 1968), this Court, sitting en banc, overruled 
the prior decision of a three-judge panel (reported at 391 
F .2d 86), and held that Fun Fair Amusement park in Baton 
Rouge, La., is a place of entertainment within the coverage 
of Title II. Noting that it was not necessary to its decision, 
the Court held that even under a narrow construction of "place 
of entertainment" to include only places which present exhibi­
tions for spectators, Fun Fair is a covered establishment because 
many of the people who assemble at the park come there to be 

entertained by watching others, particularly their own children, 
participate in the activities available," 394 F.2d at 348. 
Drinking beer, telling jokes, laughing, conversing, meeting new 
friends, observing others, and watching the barmaids at Topaz 
and Kelly's Lounges are certainly as much, if not more, spec­

10



tator activities as ice-skating and "kiddie rides" at Fun Fair, 
see 394 F .2d at 348. Thus patrons of Topaz and Kelly's who 
eritG^’tain themselves and others by their activity, are sources 
of entertainment.-^See Scott v. Young. 421 F.2d 143, 144 (4th 
Cir. 1970) approving Miller, supra.

In Daniel v. Paul, 395 U.S. 298 (1969), the Supreme 
Court specifically approved Miller by holding that a recreational 
area in which patrons are not passive spectators but direct 
Parti-Cipants is a place of entertainment" within the meaning 
of § 201(b)(3). Bar patrons similarly are direct participants 
in enjoyment. This Court concluded in Miller, supra, 394 F.2d 
at 349,that since Fun Fair was located on a major highway and 
did not geographically restrict its advertising, the logical 
conclusion is that a number of patrons, whose activities may 
entertain, have moved in commerce. It is not in dispute that 
some of Topaz and Kelly's patrons have moved in commerce because 
all appellants in this case were out of state citizens temporar—

7/ The fact that plaintiffs-appellants stipulated that
the lounges do not "offer entertainment" (A. 54) is not 
relevant here because the stipulation means only that no 
formal entertainment is provided by the lounges. The 
sense in which "entertainment" is used in the text 
recognizes the inherently entertaining nature of having 
drinks at a bar without formal entertainment provided by 
the establishment.



lly in New Orleans for a convention. Since there is no 
statutory requirement that a substantial portion of the 
"sources" of entertainment move in commerce, we submit 
that appellants' status as interstate travellers and the 
presumption that the lounges are open to the general publi§-/ 
satisfy the requirements for coverage under Title I I . ^

i/

9/

^here 1S no evidence that whites are not served as a matter of course m  the two lounges.
Cases holding that bars are not places of public 

accommodation because they serve no food are not in 
point because they did not treat bars as places of enter-
* 0“ ; Thi ef5 V ’ fdrf es> 344 F * *2d 1019, 1020, 1023 (10th Cir 1965), cert, denied, 382 u.S. 1014 (1966)- cf

f tate Co ^ v ^ d a m s ,  396 F.2d 146, 150 5th Cir. 1968); Tyson v Cazes. 363 F.2d 742 (5th Cir. 1966) reversing and vacating for mootness '(E. D. La. 1965). ------ 238 F. Supp. 937

12



CONCLUSION

For i h^ foregoing reasons , 
district, court should be reversed.

till- iudgraent oi the

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C . AMAKER 
CONRAD K. HARPER

10 Columbus Circle 
New York, N.Y. 10019

ROBERT F . COLLINS 
NILS R. DOUGLAS 
LOLIS E. ELIE 
CHARI.ES E. COTTON 

344 Camp Street 
New Orleans, Louisiana 70130

Attorneys for Appellants

CERTIFICATE OF SFm/Tce
This is to certify that on the 9th day of October,

1970 the undersigned, one of counsel for appellants, served a
copy of the foregoing Brief for Appellants upon appellees, Topaz
1-2-3 Lounge, Inc. and Mr. George P. Mandella, represented by
Mr. Carruth, by mailing same via United States mail postage
prepaid, addressed as indicated below:

Louis R. Carruth, Esq.
Suite 1301
1305 Tulane Avenue
New Orleans, Louisiana

13



CONCLUSION

For the foregoing reasons, the.judgment of the 
district court should be reversed.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C . AMAKER 
CONRAD K. HARPER

10 Columbus Circle 
New York, N.Y. 10019

ROBERT F. COLLINS 
NILS R. DOUGLAS 
LOLIS E. ELIE 
CHARLES E. COTTON 

344 Camp Street 
New Orleans, Louisiana 70130

Attorneys for Appellants

CERTIFICATE OF SERVICE
This is to certify that on the 9th day of October,

1970 the undersigned, one of counsel for appellants, served a
copy of the foregoing Brief for Appellants upon appellees, Topaz
1-2-3 Lounge, Inc. and Mr. George P. Mandella, represented by
Mr. Carruth, by mailing same via United States mail postage
prepaid, addressed as indicated below:

Louis R. Carruth, Esq.
Suite 1301
1305 Tulane Avenue
New Orleans, Louisiana

13



r