Fraser v. Robin Dee Day Camp

• Decision Date: 17 May 1965
• Docket Number: No. A--96,A--96
• Citation: 210 A.2d 208,44 N.J. 480
• Parties: Leon FRASER, Individually and as Guardian ad Litem for Keith Fraser, and Leon Fraser, Jr., Complainant, v. ROBIN DEE DAY CAMP, Robin Dee Private School and Day Camp, Robin Dee Nursery School and Jack Alvino, Respondents-Appellants.
• Court: New Jersey Supreme Court

Page 480

44 N.J. 480

210 A.2d 208

Leon FRASER, Individually and as Guardian ad Litem for Keith Fraser, and Leon Fraser, Jr., Complainant, v. ROBIN DEE DAY CAMP, Robin Dee Private School and Day Camp Robin Dee Nursery School and Jack Alvino Respondents-Appellants.

No. A--96.

Supreme Court of New Jersey.

May 17, 1965.

Vincent D. Girard, Trenton, for respondents-appellants.

Howard H. Kestin, Deputy Atty. Gen., for Division on Civil Rights (Arthur J. Sills, Atty. Gen., attorney).

The opinion of the court was delivered by

PROCTOR, J.

Respondents appealed, pursuant to R.R. 4:88--8, from a decision and order of the Director of the Division on Civil Rights. This court certified the matter before argument in the Appellate Division.

The complainant, Dr. Leon Fraser, a Negro, filed a complaint with the Division on Civil Rights alleging that the respondent, Jack Alvino, who is the owner and operator of the Robin Dee Day Camp, committed an act of discrimination because of race by refusing to admit Dr. Fraser's children to the camp. A hearing was held before a hearing examiner of the Division. The hearing examiner found that Alvino, individually and trading as Robin Dee Day Camp, Robin Dee Private School, and Robin Dee Nursery School, did commit an act of unlawful discrimination. The Division adopted the hearing examiner's findings and ordered the respondent to cease discriminating unlawfully 'in any day camp, private school or nursery school that may be a place of public accommodation within the purview of the Law Against Discrimination, N.J.S.A. 18:25--1 et seq.'

The evidence before the hearing examiner showed the following facts: On March 24, 1963 respondent Alvino published an advertisement in a daily newspaper announcing the facilities and programs of the Robin Dee Day Camp. The advertisement described two programs for children from six to fourteen years of age, and one for children from two to five years of age. Inspection of the premises by appointment was invited. The advertisement also stated 'Submission of personal application is only considered an offer to enroll and is subject to acceptance.' Dr. Fraser wrote to the day camp requesting a brochure and application blanks for his two bosy, ages nine and five. Several weeks later, not having received a reply, Mrs. Fraser telephoned the camp and spoke to Miss Virginia Brusakis, who was the secretary and admissions clerk of both the school and the day camp. Miss Brusakis took Mrs. Fraser's name and address, and said that the respondent would be advised of her call. The following day Mrs. Fraser was called by an employee from the school, who relayed a message from the respondent that 'he could not help you.' Dr. Fraser then called the day camp for clarification, but being unsuccessful, he called the respondent's home. An employee of the school answered and in response to his question about the previous day's message, she asked him if he was colored. When he said that he was, she replied, 'Well that is apparently what he had in mind that we do not accept colored at the Robin Dee Day Camp.' Later that day respondent called the Fraser home and arranged for an interview with Dr. Fraser. At the interview, according to Dr. Fraser, the respondent said that he was not prejudiced but that he was afraid that if he should accept Negroes it would injure his business. Respondent told him that he had turned down two other applicants solely because they were Negroes. Respondent did not contradict Dr. Fraser's version of the interview.

About two months later, after the Division had intervened, Dr. and Mrs. Fraser and a field representative for the Division went to the camp. Miss Brusakis completed the applications of the two children but the next day the applications were rejected by the respondent without explanation.

At the hearing the respondent took several and often contradictory positions as to why he had rejected the Fraser boys. He asserted that as an owner of a private business he did not have to give a reason. When the hearing examiner ordered him to answer, he stated that 'it was neither feasible nor practical to accept them.' After consulting with his attorney, respondent then stated that he had rejected the applications because Dr. Fraser failed to follow proper office procedure and because his subsequent actions were coercive. Respondent made no suggestion that the Fraser boys were unable to meet the health, physical, or emotional standards required of the children attending the day camp; also, there was no suggestion that the Frasers were unable to pay the required fees.

The respondent argues that there is no substantial evidence to show that he discriminated against the Fraser children. However, the evidence clearly establishes that the Fraser children were rejected by the respondent solely because of their race. The testimony as to the Frasers' repeated attempts to enroll their children and the respondent's rejection of them because of their race was virtually uncontroverted. The respondent's belated explanation that the applications were rejected because the Frasers did not follow proper office procedure is incredible. A profit-making business could not possibly survive if all potential customers were treated as the Frasers were.

The principal issue on this appeal is whether the Robin Dee Day Camp is a place of public accomodation 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 accommodations on account of his race.

In defining a place of public accommodation, N.J.S.A. 18:25--5(l) provides:

"A place of public accommodation' shall include any tavern, roadhouse, or hotel, whether for entertainment of transient guests or accommodation of those seeking health, recreation or rest; any retail shop or store; any restaurant, eating house, or place where food is sold for consumption on the premises; any place maintained for the sale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where any beverages of any kind are retailed for consumption on the premises; any garage, any public conveyance operated on land or water, or in the air, and stations and terminals thereof; any public bathhouse, public boardwalk, public seashore accommodation; any auditorium, meeting place, or public hall; any theatre, or other place of public amusement, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor; any comfort station; any dispensary, clinic or hospital; and any public library, any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey. Nothing herein contained shall be construed to include or to apply to, any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution, and the right of a natural parent or one in loco parentis to direct the education and upbringing of a child under his control is hereby affirmed; nor shall anything herein contained be construed to bar any private secondary or post-secondary school from using in good faith criteria other than race, creed, color, national origin or ancestry, in the admission of students.'

The respondent first argues that since day camps are not included in the places of public accommodation enumerated in N.J.S.A. 18:25--5(l), the Legislature must have intended to exclude them from the scope of the statute. We disagree. Subsection (l) begins with the statement that "A place of public accommodation' Shall include * * *.' (Emphasis supplied.) Ordinarily, the term 'include' is used as a word of enlargement and not of limitation. See Cuna v. Board of Fire Com'rs, Avenel, 42 N.J. 292, 304, 200 A.2d 313 (1964), and cases cited therein. The Civil Rights Law, N.J.S.A. 10:1--1 et seq., especially R.S. 10:1--2 and 10:1--5, N.J.S.A., contains provisions similar to those in question here. In State v. Rosecliff Realty Co., 1 N.J.Super. 94, 62 A.2d 488 (App.Div.1948), certif. denied, 1 N.J. 604 (1949), the court held that the use of the word 'include' in section 5 showed a legislative intent not to limit the meaning of 'places of public accommodation' to those places specifically mentioned. And in Levitt & Sons, Inc. v. Div. Against Discrimination, etc., 31 N.J. 514, 526--527, 158 A.2d 177, appeal dismissed for lack of a substantial federal question, 363 U.S. 418, 80 S.Ct. 1257, 4 L.Ed.2d 1515 (1960), this court rejected the contention that the meaning of 'publicly assisted housing accommodations' in ...