Olzman v. Lake Hills Swim Club, Inc.

• Decision Date: 19 April 1974
• Docket Number: Docket 73-1626.,No. 427,427
• Citation: 495 F.2d 1333
• Parties: Saul OLZMAN et al., Appellants, v. LAKE HILLS SWIM CLUB, INC., Appellee.
• Court: U.S. Court of Appeals — Second Circuit

495 F.2d 1333 (1974)

Saul OLZMAN et al., Appellants, v. LAKE HILLS SWIM CLUB, INC., Appellee.

No. 427, Docket 73-1626.

United States Court of Appeals, Second Circuit.

Argued February 11, 1974.

Decided April 19, 1974.

Michael N. Pollet, New York City (Marvin M. Karpatkin, New York City; Harvey A. Silverglate, Boston, Mass.; Nancy Gertner, Boston, Mass., of counsel; Karpatkin, Ohrenstein & Karpatkin, New York City, and Zalkind & Silverglate, Boston, Mass., on the brief), for appellants.^*

James L. Goldwater, New York City (Goldwater & Flynn, New York City), for appellee.

Before ANDERSON, MANSFIELD and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal is from the grant of summary judgment against plaintiffs who allege racially discriminatory operation of a swimming club. The appellants include members of the Lake Hills Swim Club, Inc. (the club), as well as representatives of a group of black children from Roslyn, Long Island, New York, who were invited by those members to use the facilities of the defendant club as guests of the plaintiff members. The action was brought in August, 1969, but was not decided by the court below until February 15, 1973. The appeal did not reach us for about a year and thus we are to consider the serious questions involved some five years after the event on the basis solely of affidavits submitted and available to the court below. The suit claims violation of the thirteenth and fourteenth amendments to the United States Constitution, Title 2 of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. and 42 U.S.C. §§ 1981, 1982. For reasons that will appear, not the least of which is the Supreme Court's decision in Tillman v. Wheaton-Haven Recreation Association, Inc., 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973), made shortly after the decision below, we reverse and remand for further findings. The non-summary "summary judgment" of the court below theretofore is reversed.

The defendant club was incorporated in April, 1960, under the Membership Corporations Law of New York (repealed in 1970 and replaced with the Not-for-Profit Corporation Law, McKinney's Consol. Laws, c. 35) to operate a private, non-profit swimming pool with associated facilities and amenities for the use of members living in the community known as Lakeville Estates Park in East Hills, New York. At the time of this formation, Lakeville Estates was under development and was one of several developments in the incorporated Village of East Hills. In December, 1960, at the request of persons interested in the club, the Village of East Hills adopted an ordinance amending its zoning law to provide that a building and lot of land could under certain conditions be used for a swimming pool and accessory purposes "by an association or membership corporation (all directors, officers, and members of which shall be resident owners of real property within the Village) and which is not conducted for profit or gain ...." The ordinance provided that any permit granted under it to a club could "prescribe reasonable rules and regulations for the operation, maintenance and use of such swimming pool and any accessory structures." In February, 1961, the board of trustees of the Village, after making certain findings, granted a temporary permit to the defendant club conditional on several bases, including the requirement that the membership be limited to 100 bona fide residents of the incorporated Village of East Hills.¹ The club acquired pool property which includes a swimming pool, a parking area, related wading pool and bathhouse, with a little snack bar at which snacks and soft drinks can be obtained and which operates at a loss. The club has no liquor license and does not serve meals. All of the members do come from East Hills, and all but a few of them from Lakeville Estates. Under the club by-laws, acquiring membership requires the payment of $2,000 and withdrawal from membership involves a partial loss of the membership investment, even though a new member paying the full fee acquires the retiring member's membership. The bylaws also permit members who sell their residences to transfer their certificates of membership to the new owners without the necessity of approval by the board of directors, that transfer automatically taking precedence over the waiting list of the time.

I.

The first question is whether the club is genuinely private within the meaning of 42 U.S.C. § 2000a(e)² so as to exempt it from the operation of § 2000a(a).³ Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318 (1969). The district court found the club to be private. The decision of this question is important not only as to the effect of § 2000a(a) but perhaps in respect to the effect of §§ 1981 and 1982. See Tillman v. Wheaton-Haven Recreation Association, 410 U.S. at 438-439, 93 S.Ct. 1090. The facts in Tillman and Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), which denied "private club" status to the swimming pool and park therein, closely parallel those here. In each case membership was generally restricted to persons living within a particular geographic area;⁴ in Tillman there was a stated maximum number of memberships;⁵ and in each case there was a requirement of formal board or membership approval.⁶ Indeed, here there is not even any approval requirement with regard to applicants who have bought houses belonging to former members.⁷ These applicants automatically become members upon paying their membership fees without ever having to progress through the waiting list. In short, here "there was no plan or purpose of exclusiveness." Sullivan v. Little Hunting Park, 396 U.S. at 236, 90 S.Ct. at 404.

Appellee argues that because the club is open only to 110 residents and their families out of 2,300-odd homeowners in the community of East Hills, it is not open to the general public and hence should fall within the exemption of § 2000a(e). The same argument failed in Tillman, as it must have; if limitation on the number of users were the test, every restaurant or night club limited by law or fire regulations to a given number of occupants at a given time would be magically transformed into a "private club." Accordingly, we have no difficulty in following the lead of Tillman and Sullivan and finding that the Lake Hills Swim Club, Inc., is not a "private club" within the meaning of § 2000a(e), and therefore is not exempt from the prohibitions of § 2000a et seq., as well as the broad sweep of §§ 1981 and 1982.

II.

Having determined that plaintiffs' claim is not foreclosed by 42 U.S.C. § 2000a(e), we turn to their claims under 42 U.S.C. §§ 1981 and 1982⁸ and 2000a. Here appellee argues that the club's adoption of the amended guest rules violated no rights protected by §§ 1981 and 1982; that persons not residing in East Hills have no standing to sue and plaintiff Olzman lacks standing because he has since moved away; and that in any case there was no showing in the record of discrimination on the basis of race. To understand these arguments it is necessary to set forth the controversy in greater detail.

All the plaintiffs are present or, in the case of Olzman, former members of the club except plaintiffs Terry and Hilton. Plaintiff Terry is pastor of a Baptist church in Roslyn Heights, and his congregation includes the black children who have been barred from using the club's pool under the circumstances hereinafter set forth. Plaintiff Hilton is a parent of some of the Roslyn children who have been prevented from the use of the pool as guests of club members.

The dispute began early in June, 1968. As might be expected, the affidavits are not consistent, but apparently plaintiff Olzman invited a business associate to bring a group of black children to the pool on a Saturday. This plan apparently bore no fruit but later attempts to invite black underprivileged children from nearby Roslyn through the Rev. Mr. Terry were more successful. Apparently after the first "day the children were brought in" a meeting of the executive board discussed how to deal with the problem of underprivileged children as guests.⁹ The focus of discussion was how to keep the underprivileged children out, and there were numerous suggestions. One person suggested that all guest privileges be eliminated. Another suggested that underprivileged children and adults not be admitted as guests. It was asked why these children did not go somewhere else. Later it would be suggested that the club pay for the children to be taken somewhere else, so as to keep them from using the pool. There was a motion to redefine "guest" as a relative or friend of a member and to exclude individuals or groups from public or private charitable or benevolent organizations "without regard to race, color or creed." This motion was carried. Some, however, suggested that there was a possibility for compromise between what were fast becoming entrenched opposition groups. And, indeed, compromise was reached. Those wishing to bring the underprivileged children in as guests would be allowed to do so each Monday morning during this one summer, Monday being the day when the pool was least used, but this would be the only day of the week they could do so. This "arrangement" brought a measure of quiet to the club which was being rent apart by this dispute. As the court below put it, the meetings and exchanges, "in which everyone put forward his worst foot, ... were full of recriminations, rich in objurgative expression on both sides and replete with competing claims of `liberalism' and `private club.'" In less euphemistic terms, one side claimed that the other was expressing an intent to keep the "nigger kids" out, while the other side hotly denied any such thing.

In any case, the dispute was at least put off by the "arrangement." During the summer of 1968 at the...