Findling v. T.P. Operating Co.

• Decision Date: 07 January 1985
• Docket Number: Docket No. 74684
• Citation: 361 N.W.2d 376,139 Mich.App. 30
• Parties: David FINDLING, Plaintiff-Appellant, v. T.P. OPERATING COMPANY, d/b/a Dillon's or Dillon's Disco, Defendant-Appellee. 139 Mich.App. 30, 361 N.W.2d 376
• Court: Court of Appeal of Michigan — District of US

Page 376

361 N.W.2d 376

David FINDLING, Plaintiff-Appellant, v. T.P. OPERATING COMPANY, d/b/a Dillon's or Dillon's Disco,

Defendant-Appellee.

Docket No. 74684.

139 Mich.App. 30, 361 N.W.2d 376

Court of Appeals of Michigan.

Submitted July 17, 1984.

Decided Nov. 7, 1984.

Rehearing Denied Dec. 20, 1984.

Released for Publication Jan. 7, 1985.

[139 MICHAPP 32] Michael J. Hubbard, Detroit, for plaintiff-appellant.

Barris, Sott, Denn & Driker by Sharon M. Woods and Gayle B. Tanenhaus, Detroit, for defendant-appellee.

Before V.J. BRENNAN, P.J., and ALLEN and GRIBBS, JJ.

PER CURIAM.

Plaintiff appeals as of right from an Oakland County Circuit Court order issued on October 8, 1983, which dismissed plaintiff's complaint pursuant to GCR 1963, 117.2(1).

In a series of amended complaints filed between August 25, 1982, and April 26, 1983, plaintiff alleged that he was denied admission to defendant's "disco" because he was under the age of 21 at the time he sought admission and that this denial violated his civil rights. Plaintiff further alleged that defendant's refusal to admit him injured his feelings and "caused him" humiliation and mental suffering. As a result of the "outrage to his moral sense", plaintiff claimed that he was entitled to exemplary damages.

As an affirmative defense to plaintiff's allegations, defendant asserted that by virtue of the Liquor Control Act, M.C.L. Sec. 436.1 et seq.; M.S.A. Sec. 18.971 et seq., defendant was entitled to make reasonable [139 MICHAPP 33] rules and regulations which would include excluding persons between the ages of 18 and 21 from its establishment.

On September 28, 1983, defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(1). According to defendant, the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., did not proscribe forms of discrimination which are "permitted by law". Defendant asserted that the alleged refusal to admit plaintiff into its establishment was permitted by M.C.L. Sec. 436.33b; M.S.A. Sec. 18.1004(2) which prohibits the consumption of alcoholic beverages by persons under 21 years of age.

The hearing on defendant's motion was held on October 7, 1983. Defendant argued that establishments such as defendant's have the right to institute reasonable policies in an attempt to conform to the strict alcohol-related regulations and laws.

Plaintiff argued that the statutory phrase which allowed discrimination "where permitted by law" in the Elliott-Larsen Civil Rights Act only referred to laws which expressly allowed discrimination on the basis of age. Since there was no law in Michigan which expressly prohibited or limited access to bars by persons over 18 but under 21 years of age, plaintiff contended that such discrimination was not "permitted".

In an opinion issued from the bench, the trial court ruled that the prohibition against selling alcohol to minors provided a sufficient legal basis to justify the refusal of admission by defendant to patrons between the ages of 18 and 21. The court also concluded that the form of age discrimination as alleged by plaintiff was "permitted by law" and, as such, it was not improper under the Elliott-Larsen Civil Rights Act.

The issue for our consideration is whether the [139 MICHAPP 34] trial court erred in dismissing plaintiff's complaint.

The standard of review for determining whether summary judgment has been properly granted under GCR 1963, 117.2(1) is set forth in Reed v. St. Clair Rubber Co., 118 Mich.App. 1, 5, 324 N.W.2d 512 (1982):

"A motion brought pursuant to GCR 1963, 117.2(1) challenges the legal sufficiency of plaintiff's claim only. In Partrich v Muscat, 84 Mich App 724, 729-730; 270 NW2d 506 (1978), this Court detailed the applicable rules for passing on a motion seeking summary judgment pursuant to GCR 1963, 117.2(1):

" 'The standard governing this Court's review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman's Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972).' "

Plaintiff argues that the absence of both case law and statutory authority for defendant's alleged refusal to admit adults under the age of 21 indicates that plaintiff has a colorable claim for violation of his civil rights under the Elliott-Larsen Civil Rights Act. Plaintiff's claim for relief rests entirely upon the Elliott-Larsen Civil Rights Act. No constitutional issue has been raised by plaintiff.

[139 MICHAPP 35] The Elliott-Larsen Civil Rights Act sets forth the rights to which an individual is entitled and proscribes conduct which would interfere with those rights. Section 102 of the act provides that individuals have a right to equal utilization of places of public accommodation and services regardless of age:

"The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, or marital status as prohibited by this act, is recognized and declared to be a civil right." M.C.L. Sec. 37.2102(1); M.S.A. Sec. 3.548(102)(1).

Section 301 of the act defines the term "Place of public accommodation" as follows:

" 'Place of public accommodation' means a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public." M.C.L. Sec. 37.2301(a); M.S.A. Sec. 3.548(301)(a).

Section 302 of the act prohibits discrimination on the basis of age unless otherwise permitted by law:

"Except where permitted by law, a person shall not:

"(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status." M.C.L. Sec. 37.2302(a); M.S.A. Sec. 3.548(302)(a) (emphasis added).

If defendant's refusal to admit plaintiff on the [139 MICHAPP 36] basis of plaintiff's age is "permitted by law", then plaintiff has failed to state a cause of action for violation of his civil rights under the Elliott-Larsen Civil Rights Act. See Cheeseman v. American Multi-Cinema, Inc., 108 Mich.App. 428, 310 N.W.2d 408 (1981), lv. den. 413 Mich. 890 (1982).

M.C.L. Sec. 750.141; M.S.A. Sec. 28.336 provides in part "A minor child under 17 years of age shall not be permitted to remain in a dance hall, saloon, barroom or anyplace" where intoxicating liquor, wine, or beer or beverages containing intoxicating liquor or spirits is sold, given away or furnished for a beverage, unless the minor is accompanied by a parent or guardian.

No statute exists which prohibits persons over 17 from being present in such establishments. Defendant claims, however, that the statutory prohibitions against serving alcohol to persons under the age of 21 permits defendant by law to deny admission to persons 18 to 21 years of age. In support of its argument, defendant cites the Liquor Control Act, M.C.L. Sec. 436.1 et seq.; M.S.A. Sec. 18.971 et seq., and specific provisions in the act where the Legislature has established Michigan's legal drinking age at 21 years of age.

M.C.L. Sec. 436.33; M.S.A. Sec. 18.1004 states in part:

"(1) Alcoholic liquor shall not be sold or furnished to a person unless the person has attained 21 years of age. A person who knowingly sells or furnishes alcoholic liquor to a person who is less than 21 years of age, or who fails to make diligent inquiry as to whether the person is less than 21 years of age, is guilty of a misdemeanor. A suitable sign which describes this section and the penalties for violating this section shall be posted in a conspicuous place in each room where alcoholic liquors are sold."

M.C.L. Sec. 436.20; M.S.A. Sec. 18.991 provides for fines of up [139 MICHAPP 37] to $300 in addition to or in lieu of either suspension or revocation of a liquor license if any provisions of the Liquor Control Act are violated.

Under M.C.L. Sec. 436.33b; M.S.A. Sec. 18.1004(2):

"(1) A person less than 21 years of age shall not purchase alcoholic liquor, consume alcoholic liquor in a licensed premises, or possess alcoholic liquor, except as provided in section 33a(1) of this act. A person less than 21 years of age who violates this subsection is liable for * * * civil fines * * *."

Likewise, under M.C.L. Sec. 436.33a; M.S.A. Sec. 18.1004(1), a person under the age of 21 who knowingly transports or possesses alcoholic liquor in a motor vehicle is guilty of a misdemeanor "unless the person is employed by a licensee under this act, the liquor control commission" or its agent and the person "is transporting" or has the liquor in the vehicle "under the person's control during regular working hours and in the course of the person's employment".

Finally, under the dramshop act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993, for purposes of that provision of the Liquor Control Act, a minor is defined as "a person to whom alcoholic liquor shall not be sold pursuant" to ...