Miller v. Amusement Enterprises, Inc.

• Decision Date: 06 September 1967
• Docket Number: No. 24259.,24259.
• Citation: 391 F.2d 86
• Parties: Mrs. Patricia B. MILLER, Individually, and on Behalf of her minor children, Denise and Daniel Miller, Appellant, v. AMUSEMENT ENTERPRISES, INC., d/b/a Fun Fair Park, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

391 F.2d 86 (1967)

Mrs. Patricia B. MILLER, Individually, and on Behalf of her minor children, Denise and Daniel Miller, Appellant, v. AMUSEMENT ENTERPRISES, INC., d/b/a Fun Fair Park, Appellee.

No. 24259.

United States Court of Appeals Fifth Circuit.

September 6, 1967.

Johnnie A. Jones, Baton Rouge, La., Norman C. Amaker, Henry M. Aronson, New York City, for appellant.

W. P. Wray, Jr., Baton Rouge, La., for appellee.

Before RIVES and DYER, Circuit Judges, and JOHNSON, District Judge.

RIVES, Circuit Judge:

Solely because of their race or color, Mrs. Miller and her two minor children were refused the services and facilities of Fun Fair Park, a privately-owned amusement center which serves the public. The facts and circumstances are adequately stated in the opinion of the district court, reported in 259 F.Supp. at 523. The controlling question is whether Fun Fair Park is "a place of public accommodation" as defined in Section 201 of the Civil Rights Act of 1964:

"(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

"(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

"(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

"(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

"(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

"(4) any establishment (A) (i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

"(c) The operations of an establishment affect commerce within the meaning of this subchapter if (1) it is one of the establishments described in paragraph (1) of subsection (b) of this section; (2) in the case of an establishment described in paragraph (2) of subsection (b) of this section, it serves or offers to serve interstate travelers or a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce; (3) in the case of an establishment described in paragraph (3) of subsection (b) of this section, it customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce; and (4) in the case of an establishment described in paragraph (4) of subsection (b) of this section, it is physically located within the premises of, or there is physically located within its premises, an establishment the operations of which affect commerce within the meaning of this subsection. For purposes of this section, `commerce\' means travel, trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia and any State, or between any foreign country or any territory or possession and any State or the District of Columbia, or between points in the same State but through any other State or the District of Columbia or a foreign country.

"(d) Discrimination or segregation by an establishment is supported by State action within the meaning of this subchapter if such discrimination or segregation (1) is carried on under color of any law, statute, ordinance, or regulation; or (2) is carried on under color of any custom or usage required or enforced by officials of the State or political subdivision thereof; or (3) is required by action of the State or political subdivision thereof.

"(e) The provisions of this subchapter shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b) of this section. Pub.L. 88-352, Title II, § 201, July 2, 1964, 78 Stat. 243." 42 U.S. C.A. § 2000a.

The claim is straitly narrowed by the following stipulation:

"It is * * * stipulated by and between counsel that the plaintiff herein is making no claim that the defendant, in the operation of the concession stands wherein refreshments are allegedly served on a discriminatory basis, is operating his facilities in violation of either Sec. 201(b) (2), Sec. 201(c) (2), Sec. 201(b) (4), or Sec. 201(c) (4) of the Civil Rights Act of 1964, the plaintiff\'s sole contention in this suit being that the defendant is operating his place of entertainment in violation of Sec. 201(b) (3) and Sec. 201(c) (3) of the Act. It was further stipulated that the reference in the stipulated facts to the operation of the concession stands is merely to show the total operation of the defendant\'s facility and not to allege or show a violation of Sec. 201(b) (2), 201(c) (2), 201(b) (4), or 201(c) (4) of the Civil Rights Act of 1964."¹

There is no claim or evidence that the discrimination or segregation is supported by State action, nor is there any claim or evidence of a violation of Section 202 of the Act:

"All persons shall be entitled to be free, at any establishment or place, from discrimination or segregation of any kind on the ground of race, color, religion, or national origin, if such discrimination or segregation is or purports to be required by any law, statute, ordinance, regulation, rule or order of a State or any agency or political subdivision thereof. Pub.L. 88-352, Title II, § 202, July 2, 1964, 78 Stat. 244." 42 U.S.C.A. § 2000a-1.²

The inquiry is narrowed to the question of whether an amusement park which offers no exhibitions for the entertainment of spectators³ is a "place of entertainment" as contemplated by Section 201(b) (3). The district court's opinion answered that question in the negative. That answer finds support in an earlier district court opinion, Robertson v. Johnston, E.D.La. 1966, 249 F. Supp. 618, rev'd on other grounds, 5 Cir. 1967, 376 F.2d 43, and is also supported by a more recent district court opinion, Kyles v. Paul, supra note 1. Apparently, this is the first appellate presentation of the question.

At the conclusion of the oral argument, this Court expressed "the opinion that the interests of justice require a complete and thorough search and analysis of the legislative history concerning 42 U.S.C.A. 2000a, b(3) and c(3)"; and with the consent of the parties requested "that the United States, acting through the Civil Rights Division of the Department of Justice, file with this Court * * * its brief setting forth the legislative history of these provisions to the extent that that history may be pertinent to the issues involved upon this appeal and according this Court the benefit of any views that may be pertinent thereto." We are grateful to the Civil Rights Division for its response, in which it sets forth at length the pertinent legislative history and expresses the view that it "is inconclusive on these issues." We believe that that response may be of so much help not only in the future consideration of this case, but also in future cases which present this important and comparatively novel question, that we are attaching it as an Exhibit to this opinion.

We recognize that some parts of the legislative history may lend support to the appellant's position, but we think that those are greatly overbalanced by the parts we indicate by the italicized portions of the appendix. The parts of the legislative history so indicated clearly support the view that places of recreation, dance studios, bowling alleys, billiard parlors, skating rinks and amusement parks which offer no exhibitions for the entertainment of spectators are not places of entertainment as contemplated by Section 201(b)(3). For that reason and for the reasons so ably expressed by the learned district judge in reaching that conclusion, the judgment is

Affirmed.

APPENDIX

MEMORANDUM OF THE UNITED STATES

STATEMENT

The United States is filing this memorandum in response to the Court's request of June 13, 1967. We set forth below the legislative history of 42 U.S. C.A. 2000a, (b) (3), and (c) (3) insofar as it appears pertinent to the issues in this appeal. Our study of that history has convinced us that it is inconclusive on these issues.

LEGISLATIVE HISTORY

I. Presidential Proposal

On January 28, 1963, President Kennedy said in a message to Congress that:

No action is more contrary to the spirit of our democracy and Constitution — or more rightfully resented by a Negro citizen who seeks only equal treatment — than the barring of that citizen from restaurants, hotels, theaters, recreational areas and other public accomodations and facilities.

United States House of Representatives, Committee on the Judiciary, 88th Congress, 1st Session, Hearings on Civil Rights, Part II, p. 1448.

In his civil rights message of June 19, 1963, the President said:

Events of recent weeks have again underlined how deeply our Negro citizens resent the injustice of being arbitrarily denied equal access to those facilities and accommodations which are otherwise open to the general public.

United States House of Representatives,...