Fraternal Order of Eagles, Inc., Tucson Aerie No. 180 v. City of Tucson
| Decision Date | 29 March 1991 |
| Docket Number | CA-CV,No. 2,2 |
| Citation | 168 Ariz. 598,816 P.2d 255 |
| Parties | FRATERNAL ORDER OF EAGLES, INC., TUCSON AERIE # 180, a private non-profit corporation, Plaintiff/Appellant, v. The CITY OF TUCSON, a political subdivision of the State of Arizona, Defendant/Appellee. 90-0237. |
| Court | Arizona Court of Appeals |
The Fraternal Order of Eagles, Inc., Tucson Aerie # 180 (F.O.E.) appeals from the trial court's affirmance of the City of Tucson administrative hearing officer's ruling that the F.O.E. is required to admit four women to membership and is subject to a $1,000 fine for violating a city ordinance against discrimination. We agree that the F.O.E. is subject to the ordinance and affirm.
The F.O.E. began in the State of Washington in the 1890's and the Tucson unit or aerie began in 1901. It describes itself as a fraternal organization. Its articles of incorporation state that its purpose is "to unite fraternally for mutual benefit, protection, improvement, social enjoyment and association." At the administrative hearing held in June 1989, the testimony was that the F.O.E. raises money that it gives to various charities. In June 1989, the membership of the aerie was about 900; the women's auxiliary had just under 1,100 members. Only males are permitted to join the aerie; only females can become members of the auxiliary. Members of both groups must be over 21, believe in a supreme being, not be a member of the Communist party, and be of good moral character. An applicant for membership must be sponsored by two members; be interviewed by a committee, which recommends the applicant's approval or rejection; and be approved by two-thirds of the members present and voting. The testimony was that it is rare for an applicant to be rejected.
Between July and October 1988, four women applied for membership in the aerie. The committee recommended that their applications be rejected, and all four were rejected by the membership. The four women then filed a complaint with the City of Tucson, claiming the F.O.E. had discriminated against them in violation of Tucson City Code § 17-12(a). The administrative hearing officer concluded that the F.O.E. had violated the ordinance, and the F.O.E. filed a special action in superior court for review of that decision. After lengthy arguments and a motion for new trial by the F.O.E., the trial court affirmed the decision of the administrative hearing officer, and this appeal followed. The F.O.E. does not dispute the fact that the women were rejected for membership because of their gender.
The F.O.E. argues on appeal that 1) the organization is not a place of public accommodation either under the ordinance or under criteria established by the United States Supreme Court, 2) even if it is a public accommodation, it is exempt under one of the exclusions of the ordinance, 3) the language of the ordinance is unconstitutionally vague, 4) the trial court's interpretation of the ordinance violates the F.O.E.'s equal protection rights, 5) the language of the ordinance is unconstitutionally overbroad, and 6) enforcement of the ordinance against the F.O.E. would violate its members' rights to freedom of association. We do not address the void for vagueness argument because the F.O.E. expressly argued below that the ordinance language is not unconstitutionally vague. See Southern Pacific Co. v. Loden, 19 Ariz.App. 460, 508 P.2d 347 (1973). We do not address the equal protection and overbreadth arguments because they were not made below. Richter v. Dairy Queen of Southern Arizona, Inc., 131 Ariz. 595, 643 P.2d 508 (App.1982).
The parties dispute the applicable standard of review, the city contending that our only obligation is to determine if there is substantial evidence to support the trial court's decision and the F.O.E. contending that we are not bound by the conclusions reached by the trial court but are free to draw our own conclusions from the facts found by the trial court. A precise determination of the applicable standard is not necessary, however, because our decision is strictly one of law. Although the parties dispute minor points of fact, the essential facts are undisputed.
The analysis must begin with the ordinance. The Tucson ordinance provides, in part, as follows:
It is a violation of this article:
(a) For any owner, operator, lessee, manager, agent or employee of any place of public accommodation to discriminate against any person ... because of race, color, religion, ancestry, sex, age, physical handicap, national origin, sexual or affectional preference, or marital status....
Tucson City Code § 17-12. "Place of public accommodation" is defined as "facilities, establishments, accommodations, services, commodities, or use offered to or enjoyed by the general public, including but not limited to" such places as hotels, restaurants, taverns, theaters, retail establishments, places of public amusement and recreation, educational facilities, public conveyances, and funeral parlors and places of burial. Tucson City Code § 17-11(b). None of the establishments expressly defined in the ordinance specifically includes an organization such as the F.O.E.
The evidence presented at the administrative hearing was that the F.O.E. building is open six days a week from 10:30 a.m. to 1:00 a.m. and from noon to 1:00 a.m. on Sundays. During those hours, the aerie sponsors bingo games for four hours at a time three days a week. Those games are required under the aerie's bingo license to be open to the public, and it is undisputed that females attend those games. The F.O.E. also holds a public fish fry once a month, and the auxiliary holds a public smorgasbord once a month. Other public functions are also held occasionally. There was testimony that the organization has sponsored dances and several Elvis Presley impersonator shows that were open to the public.
The aerie itself holds a weekly one-hour meeting that is open to members only. During that meeting, the members participate in various rituals established by the national organization. The auxiliary meets every two weeks, and those meetings are open only to women. The boards of trustees of the two groups meet jointly once a month to coordinate events, and the aerie's board has the final say in the event of a dispute. The F.O.E. also operates a bar and restaurant that is open only to members and their guests, but the testimony was that persons attending the bingo games may purchase alcohol by giving money to a member who purchases a drink from the bar. The same is true at the fish frys. In addition, the F.O.E. rents out the building for events such as weddings, baptisms, birthday parties, and anniversaries.
The F.O.E. argues that it does not come within the ordinance because it has a mixture of public and private activities. The ordinance does not address that type of facility, but we see nothing in the ordinance language that excludes a mixed facility. The fact that many more of its activities are public than private brings it within the ordinance.
The F.O.E. next contends that it is exempt from compliance under one of the exclusions of the ordinance. Section 17-13 of the Tucson City Code provides in part:
(a) This article shall not be applicable to ... any bona fide social, fraternal, educational, civic or religious organization ... when the profits of the accommodations advantages, facilities and services, above reasonable and necessary expenses, are solely for the benefit of such organization....
The city contends that the proper approach to the ordinance is to first determine if the facility is a place of public accommodation. If it is, the city argues, then the analysis is complete and the exclusion need never be examined. We disagree. Legislation must be construed as a whole in order to determine its meaning, State ex rel. Morrison v. Jay Six Cattle Co., 85 Ariz. 220, 335 P.2d 799 (1959), and effect must be given to all its language. Roller Village, Inc. v. Superior Court, 154 Ariz. 195, 741 P.2d 328 (App.1987...
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