Beynon v. St. George-Dixie Lodge No. 1743, Benev. & Protective Order of Elks

Decision Date14 April 1993
Docket NumberNo. 910551,GEORGE-DIXIE,910551
Citation854 P.2d 513
PartiesSandra BEYNON, Plaintiff and Appellant, v. ST.LODGE # 1743, BENEVOLENT & PROTECTIVE ORDER OF ELKS, Defendant and Appellee.
CourtUtah Supreme Court

Brian M. Barnard, John Pace, Salt Lake City, for plaintiff and appellant.

Glenn C. Hanni, David R. Nielson, Salt Lake City, for defendant and appellee.

R. Paul Van Dam, Atty. Gen., Frank D. Mylar, Asst. Atty. Gen., Salt Lake City, amicus for plaintiff and appellant.

Leonard J. Solfa, Jr., Mooseheart, IL, for Conpor, amicus for defendant and appellee.

HALL, Chief Justice:

Plaintiff Sandra Beynon appeals from the order of the Fifth Judicial District Court granting summary judgment to defendant St. George-Dixie Lodge # 1742, Benevolent & Protective Order of Elks (the "Elks"). We reverse.


The facts for the most part are not in dispute. On August 7, 1987, Beynon applied for membership in the Elks Lodge in St. George, Utah. Beynon's membership application was denied solely because she is female.

The Elks is a nonprofit fraternal organization with criteria for membership selection. 1 Except for Beynon's application, no membership requests had been rejected for two and one-half years before this suit was filed. The Elks has approximately 1,056 members, 2 and no limit exists for the number of men who may join. In fact, men are actively recruited and encouraged to join.

The Elks' facilities include a restaurant/bar open to members, their families, and guests. Dinner is served three nights a week, and lunch is served daily, including a Sunday brunch. Nonmembers rent Elks facilities for weddings, parties, and business meetings. The only requirement for use of the facilities is that a member sponsor and attend the event.

The Elks has a St. George City business license and a private club liquor license under the Alcoholic Beverage Control Act (the "ABCA"). 3 The liquor license allows the Elks to sell beer and alcohol to its members and their guests. The Elks sells more than $250,000 worth of alcoholic beverages annually.

The stated purpose of the Elks is to promote friendship and fraternal affiliation among its members and to engage in charitable work. The Elks annually sponsors numerous charitable and social activities in the St. George area. Each Tuesday night the Elks holds a private meeting where the members discuss business and perform certain rituals. The weekly meeting is the only Elks function from which nonmembers are barred.

Plaintiff brought suit against the Elks for declaratory and injunctive relief, claiming that denying her membership application violated her rights under the Utah Civil Rights Act (the "Act"). 4 The parties filed cross-motions for summary judgment. The trial court rejected Beynon's claim and granted summary judgment for the Elks. In so ruling, the trial court found that the Elks did not qualify as an "enterprise regulated by the state" within the meaning of Utah Code Ann. § 13-7-2(c)(2) because it is a nonprofit organization and is not open to the general public.

Beynon appeals the trial court's decision dismissing her claim. Specifically, she argues that the Act prohibits the Elks from discriminating against women because (1) the Elks is an "enterprise regulated by the state," (2) the Elks is a "business establishment," and (3) the compelling state interest of eradicating discrimination outweighs any First Amendment freedom of association rights of the Elks.


A trial court should grant summary judgment only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. 5 In a case such as this, involving statutory construction, we accord the trial court's conclusions of law no deference but review them for correctness. 6


Beynon claims that the trial court erred when it determined that the Act does not prohibit the Elks from denying her membership solely on the basis of gender. Hence, we must determine the proper interpretation of the Act in this case.

Section 13-7-3 of the Act states in pertinent part:

All persons within the jurisdiction of this state are free and equal and are entitled to full and equal accommodations, advantages, facilities, privileges, goods and services in all business establishments and in all places of public accommodation, and by all enterprises regulated by the state of every kind whatsoever, without discrimination on the basis of race, color, sex, religion, ancestry, or national origin. 7

The parties agree that if the Elks qualifies as a business establishment, place of public accommodation, or state-regulated enterprise, then the Act applies and the Elks may not deny membership to Beynon on the basis of gender. Beynon argues that the Elks is both a business establishment and an enterprise regulated by the state. We conclude that the Elks is an enterprise regulated by the state under the Act. Because we so rule, we need not reach Beynon's argument that the Elks also qualifies as a business establishment.

A. Enterprises Regulated by the State

Subsection 13-7-2(c) defines enterprises regulated by the state as:

(1) all institutions subject to regulation under the Utah Uniform Commercial Credit Code, Title 70B;

(2) all places of business which sell beer to consumers or house a state liquor store, as permitted by the Alcoholic Beverage Control Act, Title 32A;

(3) all insurers regulated by the Insurance Code, Title 31A; and

(4) all public utilities subject to regulation under the Public Utilities Act, Title 54. 8

Under subsection 13-7-2(c)(2), an enterprise regulated by the state includes any place of business that sells beer to consumers or houses a state liquor store as regulated under Title 32A, Utah Code Annotated. 9 The trial court focused its decision on the "places of business" language of subsection 13-7-2(c)(2) and determined that even though the Elks sells beer and alcoholic beverages to its members and their guests, it is not a place of business because it is a "non-profit corporation, does not operate to create monetary profits, and is not open to the general public." Beynon argues, and we agree, that the trial court used an unduly restrictive definition of the term "place of business."

The plain language of subsection 13-7-2(c)(2) contemplates that entities regulated by the ABCA are subject to the antidiscrimination provisions of the Act. In other words, an entity that applies for and receives a state liquor license under the ABCA subjects itself to the provisions of the Act by accepting the license. The ABCA imposes extensive regulatory control over the sale and consumption of alcoholic beverages in Utah. Under the ABCA, all clubs in Utah that dispense alcoholic beverages must be both nonprofit 10 and private. 11

The relevant inquiry, then, is whether the Elks qualifies as a business as contemplated by the two statutes. The Elks argues that the trial court was correct in focusing on its private nature and nonprofit status in determining that the Act did not apply. That contention is incorrect for two reasons. First, if those characteristics governed our analysis, the Act would not apply to any private eating and drinking club in Utah because the ABCA requires such establishments to be private and nonprofit. As we will discuss in section II.B., that was certainly not the intent of the legislature in drafting the Act. Second, the record belies the Elks' claim that it is not a business. In fact, it is a licensed business under Utah law and St. George city ordinances. It operates a popular restaurant and bar that annually sells over $250,000 worth of alcoholic beverages to its members and their guests. Under the ABCA and the Act, the Elks is no different than any other private eating and drinking club in the state.

In holding that the Act is inapplicable to the Elks, the trial court relied on Schwenk v. Boy Scouts of America. 12 In Schwenk, the Oregon Supreme Court upheld the sustaining of a demurrer against a nine-year-old girl who was denied membership in the Boy Scouts because of her sex. The Schwenk court determined that the Public Accommodation Act, Oregon's civil rights statute, did not apply to the Boy Scouts because it did not qualify as a business or commercial enterprise that offers goods or services to the public. 13

We think the trial court's reliance on Schwenk is incorrect. The Oregon Public Accommodation Act is much narrower than Utah's Act in two important ways. 14 First, the Oregon act expressly excludes from coverage any "bona fide club or place of accommodation which is in its nature distinctly private." 15 No such exception exists in Utah Code Ann. § 13-7-2. 16

Second, Oregon's act is limited to "places of public accommodation." Utah's Act covers more than public accommodations; it also applies to "all enterprises regulated by the state of any kind whatsoever." This broad language, combined with the specific reference to businesses regulated by the ABCA in subsection 13-7-2(c)(2), leads us to conclude that the Elks is indeed subject to the Act's antidiscrimination mandates. In short, the Elks may not avail itself of the benefits of a liquor license and the license's concomitant state regulation without complying with the legislature's mandate to end discrimination in certain regulated enterprises. 17

B. Legislative Intent and Purpose of the Act

The Act's legislative purpose and intent support our determination. Section 13-7-1 states that discrimination by entities governed by the Act violates the public policy of Utah. That section further mandates that the Act "shall be liberally construed with a view to promote the policy and purposes of the act and to promote justice." Moreover, section 13-7-3 applies to "all enterprises regulated by the state of every kind whatsoever." (...

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