Clover Hill Swimming Club, Inc. v. Goldsboro

• Decision Date: 04 April 1966
• Docket Number: No. A--84,A--84
• Citation: 219 A.2d 161,47 N.J. 25
• Parties: CLOVER HILL SWIMMING CLUB, INC., Plaintiff-Appellant, v. Robert F. GOLDSBORO and Division on Civil Rights, Department of Law and Public Safety, State of New Jersey, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 25

47 N.J. 25

219 A.2d 161

CLOVER HILL SWIMMING CLUB, INC., Plaintiff-Appellant, v. Robert F. GOLDSBORO and Division on Civil Rights, Department of Law and Public Safety, State of New Jersey Defendants-Respondents.

No. A--84.

Supreme Court of New Jersey.

Argued March 7, 1966.

Decided April 4, 1966.

Leslie B. Magee, Madison, for appellant (Applegate, Quinn & Magee, Madison, attorneys).

Joseph Hoffman, Asst. Atty. Gen., for respondents (Arthur J. Sills, Atty. Gen., attorney, Arthur N. Frakt, Nutley, on the brief).

The opinion of the court was delivered by

PROCTOR, J.

The appellant, Clover Hill Swimming Club, Inc. (Clover Hill), appeals from an order of the Director of the Division on Civil Rights (Division) directing it to admit the respondent, Dr. Robert F. Goldsboro, to membership, to delete from its application form the request for information concerning church activities, and to cease engaging in any practices violative of the Law Against Discrimination, N.J.S.A. 18:25--1 et seq. We certified the appeal on our own motion prior to argument in the Appellate Division.

On October 9, 1963 Dr. Goldsboro, a Negro veterinarian, filed a complaint with the Division alleging that he had been refused membership in Clover Hill because of his race. Thereafter, Clover Hill moved before the Appellate Division of the Superior Court for an order halting the proceedings on the ground that it was a distinctly private facility which was specifically exempt from coverage by the Law Against Discrimination. The court, however, declined to decide the question since there was no factual proof before it as to the nature of the entity. When the matter came before a hearing examiner, Clover Hill again alleged that it was a distinctly private organization over which the Division had no jurisdiction. The hearing examiner decided to reserve decision on the jurisdictional question until all the evidence concerning Dr. Goldsboro's complaint had been heard, whereupon Clover Hill refused to participate further in the hearing. Bailey Brower, the president of Clover Hill, walked out of the hearing on the advice of counsel, although he was under subpoena at the time and had been directed by the hearing examiner to remain. The hearing proceeded without Clover Hill, following which the hearing examiner recommended findings that Clover Hill was a public accommodation within the purview of the Law Against Discrimination and that it denied its accommodations to Dr. Goldsboro because of his race. N.J.S.A. 18:25--8(l). These findings were adopted, over Clover Hill's objections, by the Director of the Division. N.J.S.A. 18:25--17.

The evidence before the hearing examiner showed the following facts: Clover Hill Swimming Club, Inc. was incorporated on October 6, 1961, under the General Corporation Act, N.J.S.A. 14:1--1 et seq., and is privately owned and operated for the purpose of returning a profit to its stockholders. It is organized principally to construct and operate 'beach, swimming, tennis or recreation areas on the plan and form of a private membership club.' The affairs of the corporation are managed by a four-man board of directors, all of whom must be stockholders. The president, who must be a director, has general control of the operation including the hiring, supervision, discharge and compensation of employees. No provision is made in the charter or the by-laws for any membership control of club activities. New members are recommended by a membership committee appointed by the board of directors. This committee, at the time of Dr. Goldsboro's application, consisted of eight persons, including the president, his wife and two corporation employees. A unanimous vote of the members of the committee was required before an applicant could be admitted to membership in Clover Hill. The most active committee members appear to have been Mr. Brower, the president, his wife, and an employee, Mrs. John Miller.

Clover Hill began operations in 1963 and by the time Dr. Goldsboro applied in July of that year about 250 families held memberships, the total capacity of the club having been fixed at 400 families by the terms of the zoning variance under which it was built. Each member is required to buy a $350 debenture bond and to pay an annual fee of $150. The bond is non-interest bearing and non-transferable and the holder of a membership bond is given no voice in the conduct of the corporation's affairs.

During the period of construction and for some time thereafter, there was displayed at the entrance to Clover Hill a large sign (8 4 ) which read:

'Clover Hill. On this 170 acre site a private family club with complete recreational facilities. Lake swimming, tennis, skating, golfing. For information write or call P.O. Box 222, Millington, N.J., Fr 7--0658, Millington 7--9779.'

The club also placed advertisements in several newspapers in the area. These advertisements, which gave safety advice to ice skaters, prominently displayed the club's name, address and post office box number.

Dr. Goldsboro, a resident of Passaic Township where Clover Hill is located, learned of the club from friends and from a newspaper article which described its facilities. He testified that he was attracted to nearby Clover Hill because he and his wife enjoyed swimming and because he wished to teach his son how to swim. He also testified that his annual income was $20,000 and that he would be capable of assuming the expenditures required of a club member. Dr. Goldsboro wrote to the club in July 1963 requesting an application, which he received together with a two-page form letter and a brochure extolling Clover Hill's advantages. ¹

Dr. Goldsboro filled out and mailed the application. This form requested the applicant's religious affiliation and the names of two references, preferably club members. Dr. Goldsboro gave as reference Reverend (now Bishop) George Rath, his minister, and Dr. Joseph Gattuso. Dr. Gattuso was a member of Clover Hill while Reverend Rath was not. Dr. Goldsboro waited about a month and a half without receiving any word from the club. In the middle of August he called the club and spoke with Mr. Brower, who told him that his application would be acted upon unfavorably. When Dr. Goldsboro pressed him for a reason, Mr. Brower refused to respond.

On August 23, several days after their telephone conversation, Mr. Brower wrote to Dr. Goldsboro that his original application had been lost. He also sent new forms which Dr. Goldsboro completed and returned to the club. By letter of September 10, Clover Hill acknowledged receipt of the new application. In a letter dated October 1, Mrs. Miller, chairman of the club's membership committee, informed Dr. Goldsboro that his references had been checked and were unacceptable because 'neither reference knows you socially.' Mrs. Miller concluded her letter by requesting that he send 'the names of the club members you know socially and who would act as references and sponsors for you and your wife.' Dr. Goldsboro did not respond to this letter and on October 9 he filed his complaint with the Division on Civil Rights. His last contact with Clover Hill was by letter of October 23 from Mr. Brower, in which he repeated Mrs. Miller's previous request to furnish additional references who were club members and who knew the Goldsboros socially.

Bishop Rath testified that Mr. Brower had called him in the middle of September concerning Dr. Goldsboro's application. He gave Dr. Goldsboro 'a recommendation for acceptance on the basis of his character and standing in the community.' Mr. Brower asked if he knew the applicant socially, if they 'had dinner together and cocktails together and played cards together * * *.' The Bishop replied that he had not but neither did he 'have cocktails with or play cards with' many of his parishioners. He also testified that two other members of his congregation had given his name as a reference, and in neither instance was he asked about his social contacts with the applicant. In one case the club telephoned the Bishop's home and merely asked 'was it all right?' When the Bishop said that it was, no further questions were asked. Bishop Rath said that he knew one of these applicants had become a member of Clover Hill and believed that the other had also been accepted.

Although the Goldsboros were never interviewed by Clover Hill, three witnesses testified that they had applied for membership and were personally interviewed soon after the submission of their applications. One of these witnesses also stated that, when he called the club to say that he could not supply references who were club members because the club had just started, he was told that the only references needed were those who could 'testify to the fact that I was a citizen in good standing * * *'

A field representative of the Division on Civil Rights, who had been assigned to investigate the complaint, testified that as a result of his investigation he found that Clover Hill had no Negro members.

I

The first issue on this appeal is whether the Clover Hill Swimming Club, Inc., is a place of public accommodation within the meaning of the Law Against Discrimination, N.J.S.A. 18:25--1 et seq.

N.J.S.A. 18:25--4 provides, in pertinent part, that 'All persons shall have the opportunity to obtain * * * all the accommodations, advantages, facilities, and privileges of any place of public accommodation * * * without discrimination because of race * * *' And N.J.S.A. 18:25--12(f) makes it an unlawful discrimination for a proprietor or an employee of any place of public accommodation to deny to any person such public accommodation on account of his race.

N.J.S.A. 18:25--5(l) includes in its definition of a place of public accommodation any 'swimming pool' and 'amusement and recreational park.' Thus, the facilities offered by Clover Hill are encompassed by the statutory definition. However, subsection 5(l) also sets...