Light v. Elliott

• Decision Date: 16 May 1979
• Docket Number: No. 12559,12559
• Parties: C. E. LIGHT, Plaintiff and Appellee, v. Robert P. ELLIOTT, Individually and d/b/a Lewis & Clark Marina, Defendant and Appellant, and Department of Game, Fish & Parks, a Department of the State of South Dakota, Defendant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 724

295 N.W.2d 724

C. E. LIGHT, Plaintiff and Appellee, v. Robert P. ELLIOTT, Individually and d/b/a Lewis & Clark Marina, Defendant and Appellant and Department of Game, Fish & Parks, a Department of the State of South Dakota, Defendant.

No. 12559.

Supreme Court of South Dakota.

Considered on Briefs May 16, 1979.

On Reassignment Sept. 3, 1980.

John Harmelink, Yankton, for plaintiff and appellee.

James R. Feyder of Simons, Gibbs, Feyder & Myers, Sioux Falls, for defendant and appellant.

DUNN, Justice (on reassignment).

Appellant Elliott appeals from a judgment of the circuit court permitting appellee Light to rent boat-docking facilities for the 1978 season. We reverse.

Appellant operates and manages Lewis and Clark Marina as lessee from the State of South Dakota. Appellee sought to rent marina slip space for his boat, as he had done since 1967. Appellant refused to rent him slip space, claiming appellee had not paid his previous year's bill in full, owing $5.68. Appellee contested this charge in writing, whereupon appellant made no effort to settle or close appellee's account, nor to resolve the dispute over the $5.68 charge. It is questionable whether appellant ever billed appellee for this amount after receiving written challenge of that charge.

Appellee sought and obtained a temporary injunction restraining appellant from renting this dock space to anyone other than appellee pending further court order. An interlocutory injunction was later obtained, which continued the effect of the temporary injunction throughout the pendency of the action on the merits.

The trial court found that the marina was a public concession controlled by the State of South Dakota, that appellant had followed precedent by giving preference to previous renters of dock space, and that appellee had rented space during the 1976 and 1977 seasons without incident. The court also found that in April of 1977, appellee, an attorney, began representing a former employee of appellant in legal proceedings against him.

The court concluded that because appellee tendered full payment for dock space during the 1978 season, and because the dock space in question had not been committed to any other renter, appellant's refusal to rent to appellee was an unfair and discriminatory practice as defined by SDCL 20-13-1(14), and violated the protection afforded appellee by SDCL 20-13-23.

Appellee has failed to exhaust his administrative remedies and thus should not be heard by this court. SDCL 20-13-23 allows the State Commission on Human Rights the power to consider claims of discrimination in the use of public accommodations. This state commission is subject to the supervision of the director of the division of human rights. SDCL 20-13-2.1. This division is clearly considered by the legislature as an "administrative agency" and thus is governed by the Administrative Procedures Act. SDCL 1-26-1(1), as amended, and SDCL 20-13-46 and 20-13-47.

It is imperative for appellee to have presented his grievance to the State Commission on Human Rights before the trial court passed upon the merits. Failure to exhaust administrative remedies should have prompted the trial court to send the matter back for an administrative hearing. SDCL 1-26-30. ^* We do not question the authority of the trial court to issue an injunction but, once this was done, it is required that appellee present his complaint to the commission. The failure to do so is fatal.

The judgment of the trial court is reversed.

MORGAN and FOSHEIM, JJ., concur.

WOLLMAN, C. J., concurs specially.

HENDERSON, J., dissents.

WOLLMAN, Chief Justice (concurring specially).

I join in the reversal of the judgment of the circuit court, but for a different reason.

SDCL 20-13-23 provides:

It shall be an unfair or discriminatory practice for any person engaged in the provision of public accommodations because of race, color, creed, religion, sex, ancestry, or national origin, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and equality thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair.

The intent of SDCL 20-13, the South Dakota Human Relations Act of 1972, is clear: "(T)o eliminate discrimination based upon race, color, creed, religion, sex, ancestry or national origin in the areas of . . . property rights, public accommodations and public services." State, Div. of Human Rights v. Prudential Ins., 273 N.W.2d 111, 114 (S.D.1978). Appellee alleged no facts that would bring his claim within the purview of the Act. I would not read the Act to give a cause of action to every party involved in a personal feud.

HENDERSON, Justice (dissenting).

SDCL 20-13-23 provides:

It shall be an unfair or discriminatory practice for any person engaged in the provision of public accommodations because of race, color, creed, religion, sex, ancestry, or national origin, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and equality thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair.

Appellee C. E. Light is a "person" under SDCL 20-13, captioned HUMAN RIGHTS. The purpose of this law is to accord all persons human rights and to prevent unfair or discriminatory practices against them.

Appellee, a lawyer, is being discriminated against in a public accommodation for his apparent audacity to bring suit on behalf of his client against appellant. The concession results from a lease granted by the State of South Dakota to appellant. The Secretary of the Army granted a lease covering approximately 1,407.62 acres of land and water, commonly known as the Lewis and Clark area, to the State of South Dakota for public park and recreational purposes. The U.S. Government lease to South Dakota provides, paragraph three:

The lessee (South Dakota) shall provide the facilities and services necessary to meet the public demand for the use of the area for public park and recreational purposes either directly or through concession agreements. All concession agreements shall expressly state that they are granted subject to all the terms and conditions of this lease and that the concession agreement will not be effective until the terms and conditions thereof are approved by the District Engineer. (Emphasis supplied).

Thus, appellee cannot be refused access to the use and benefit of the services and facilities of such public accommodations. He desires to use, and is entitled to use, a public park for a recreational purpose Appellant's actions constituted an adverse, unlawful, and unequal treatment prohibited by SDCL 20-13-23.

I read SDCL 20-13-23 in the disjunctive rather than the conjunctive. Appellant's conduct was a discriminatory practice under SDCL 20-13-23. The relief under this statute is not limited to minorities, classes, or individuals delineated in the first clause of the statute. Appellee's rights should not be dependent upon the personal prejudices, likes, or dislikes of the appellant. After the semicolon it plainly states: "or (it is a discriminatory practice) to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities . . ." (Emphasis supplied).

There appears to be no just or fair reason for the appellant to deny appellee the renting of a boat dock or slip. Appellant's refusal arises out of spite due to appellee's legal representation of a former employee. The Lewis and Clark Marina is a public marina and appellant does not have the right to unilaterally ignore appellee's right to rent a boat dock or slip. If appellant-appellee's relationship is characterized as a personal feud, appellant could not use his concession for the operation of a public accommodation as a vehicle in which to vent his personal feelings against appellee. Appellant's action is vindictive, without good cause, and contrary to the lease of the United States and the State of South Dakota.

Appellee's federal constitutional rights are being violated, particularly the rights afforded to him under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The dock and slip in question here are located on real estate and water owned by the United States. The appellant is a concessionaire of the State of South Dakota, is an instrumentality of South Dakota, and hence is subject to the duties and requirements of the equal protection of the laws imposed upon South Dakota by the Fourteenth Amendment to the United States Constitution. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1959).

One of the purposes behind the equal protection clause of the Fourteenth Amendment is to secure to every person within the state's jurisdiction...