Miller v. Amusement Enterprises, Inc.

Citation394 F.2d 342
Decision Date08 April 1968
Docket NumberNo. 24259.,24259.
PartiesMrs. 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

COPYRIGHT MATERIAL OMITTED

John Doar, Stephen J. Pollak, Asst. Attys. Gen., David L. Norman, Brian K. Landsberg, Frank D. Allen, Attys., Dept. of Justice, Washington, D. C., amicus curiae.

Johnnie A. Jones, Baton Rouge, La., Norman C. Amaker, Henry M. Aronson, Jack Greenberg, James M. Nabrit, III, Michael Meltsner, New York City, for appellant; William Bennett Turner, New York City, of counsel.

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

Before BROWN, Chief Judge, and RIVES, TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON and CLAYTON, Circuit Judges.*

GEWIN, Circuit Judge:

A panel of this court rendered a decision in this cause on September 6, 1967 (No. 24259), 391 F.2d 86,1 holding that an amusement park is not an establishment covered by the Civil Rights Act of 1964, § 201(b) (3) and (c) (3), 42 U.S.C. § 2000a(b) (3) and (c) (3). A petition for rehearing en banc was granted. After much careful and thoughtful consideration, we reverse.

Fun Fair Park, incorporated under Louisiana law as Amusement Enterprises, Inc., is a privately owned amusement park which ostensibly offers its facilities to the general public. The amusement park is located in Baton Rouge, Louisiana, approximately 150 yards from Airline Highway, which runs between Baton Rouge and New Orleans, Louisiana. The park covers about two and three-quarters acres of land in a business and residential area. Fun Fair operates eleven major mechanical rides for children, namely, the Train Ride, Roto-Whip, Ferris Wheel, Zoom Ride, Roller Coaster, Bumper Car Ride, Swinging Jim, Caterpillar Ride, Boat Ride, Track Turnpike, and Merry-go-round. In addition, it operates an ice skating rink during the months of November, December, January and February and maintains an ice skate rental service. Located on the premises is a small concession stand from which refreshments such as cold drinks, hot dogs, popcorn, cotton candy, snowcones, ice cream, assorted sandwiches and coffee may be purchased. Fun Fair's advertisements over radio and television solicit the business of the public generally with no expressed restriction or reservation as to race or interstate travel. However, the manager stated in his deposition that the facilities are only open to those of the public who are white, properly attired and who properly conduct themselves. The manager further stated that it is the policy of Fun Fair to exclude Negroes and that no change in policy is contemplated.

Mrs. Miller, in response to Fun Fair's advertisement that "Everybody come," took her two children, Daniel age 12 and Denise age 9, to the park to ice skate. At the skate rental counter she asked for skates for Denise, who has a fair or light complexion, and the attendant thinking the little girl was white, promptly handed Mrs. Miller a pair of skates. Daniel, dark-complexioned, who had been sent back to the Miller car for heavy socks, then joined his mother and sister. The rented skates were soon discovered to be too small and Mrs. Miller returned to the rental stand and placed the skates on the counter. In the meantime the attendant had discovered that the child was Negro and he had left the skate room to inform the manager of the situation. As the manager approached the counter, Mrs. Miller stated to him that the skates did not fit. The manager snatched the skates off the counter and announced to Mrs. Miller that Fun Fair did not "serve colored". The people standing in line waiting to rent skates began to giggle, and Denise, frightened and disappointed at not being allowed to skate, started crying. As Denise stood there crying others in line appeared to be amused. Mrs. Miller and her children quickly left the park.

Mrs. Miller, individually and on behalf of her minor children, Denise and Daniel Miller (appellants), brought this action in the United States District Court for the Eastern District of Louisiana pursuant to Title II of the Civil Rights Act of 1964, §§ 201(b) (3) and (c) (3), 42 U.S.C. §§ 2000a(b) (3) and (c) (3), to enjoin Amusement Enterprises, Inc., d/b/a Fun Fair Park (Fun Fair) from denying Negroes access to its amusement park. At the pre-trial conference it was stipulated by the parties that appellants were making no claim that Fun Fair was operating in violation of §§ 201(b) (2), (c) (2), (b) (4) or (c) (4), 42 U.S.C. §§ 2000a(b) (2), (c) (2), (b) (4) or (c) (4)2 which prohibit discrimination in any establishment within which is located a facility engaged in serving or offering to serve food for consumption on the premises to interstate travelers or wherein a substantial portion of the food it serves has moved in commerce. We quote from the record:

"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."

Subsequent to appellants' petition for rehearing in this case, the United States filed with this court a memorandum as amicus curiae on appellants' petition.3 In its memorandum the Government urged that this court grant the motion for rehearing and vacate the judgment of the district court and remand the case to the court for an evidentiary hearing on the question of whether Fun Fair is covered by the nondiscrimination requirements of §§ 201(b) (2) and (b) (4). The Government's sole contention was that the stipulation quoted above, in effect, converted appellants' case into a hypothetical situation and thus presented to the court a hypothetical question not based on the facts involved in the litigation. The Government urged that the federal courts are without power to render advisory opinions or to resolve hypothetical questions.4 Accordingly, the Government requested that the case be remanded to the district court for a determination of the issue of whether Fun Fair is covered by virtue of its operation of eating facilities.

Neither party has asked to be relieved of the stipulation. Appellants' answer to the Government's memorandum takes issue with the Government's assertion that the stipulation renders appellants' cause of action a mere hypothetical question and contends, primarily, that the Government's request is contrary to and does violence to Rule 16, Federal Rules of Civil Procedure.5

In its brief on rehearing the Government does not discuss its advisory opinion theory, mentioned above, but instead contends that the parties cannot, by a stipulation of law, remove from the district court the duty to test coverage under the facts presented and to apply to those facts each legal theory under which coverage might be found.6 Further, the Government contends that it is not necessary to remand the case but submits that there is ample support in the record to justify a holding by this court that the Fun Fair Park is covered by § 201(b) (4).

We uphold the stipulation voluntarily agreed upon by the parties involved. The stipulation does not create a situation which does not in fact exist. The stipulation does not exclude any of the facts involved in this case, but, in effect, specifically reserves for consideration by the court, in particular, the facts pertaining to the concession stand operated by Fun Fair at its amusement park. The stipulation does no more than state that appellant has agreed not to present a claim under certain sections of the Civil Rights Act. Thus, the parties are not presenting to us a hypothetical situation, nor are we asked to render an advisory opinion because the facts in this case as found in the record make it abundantly clear that a "case or controversy" actually exists between adverse litigants. We, therefore, honor the stipulation. Associated Beverages Co. v. P. Ballantine & Sons, 287 F.2d 261 (5 Cir. 1961); Laird v. Air Carrier Engine Service, 263 F.2d 948 (5 Cir. 1959). However, we refrain from deciding the question, posed by the Government in its brief on rehearing, of whether the parties can, by stipulation, bind the court as to a theory of law thereby restricting the court in its application of the law to the facts presented. In view of our decision holding Fun Fair to be a covered establishment under §§ 201 (b) (3) and (c) (3) of the Act, it is not necessary for us to consider this issue.

Sections 201(a), (b) (3) and (c) (3) provide:

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

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