Robertson v. Johnston

• Decision Date: 19 January 1966
• Docket Number: Civ. A. No. 15761-B.
• Parties: Donna ROBERTSON, Plaintiff, v. Patrolman F. JOHNSTON, and Patrolman W. Sherer, individually, and as representative of the New Orleans Police Department, and the City of New Orleans, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

249 F. Supp. 618

Donna ROBERTSON, Plaintiff, v. Patrolman F. JOHNSTON, and Patrolman W. Sherer, individually, and as representative of the New Orleans Police Department, and the City of New Orleans, Defendants.

Civ. A. No. 15761-B.

United States District Court E. D. Louisiana, New Orleans Division.

January 19, 1966.

COPYRIGHT MATERIAL OMITTED

Bruce C. Waltzer, Jack Peebles, Smith, Waltzer, Jones & Peebles, New Orleans, La., for plaintiff.

Steven R. Plotkin, Joseph W. Nelkin, Plotkin, Nelkin & Alvarez, New Orleans, La., for defendants Franklin Johnston and William A. Sherer.

Alvin J. Liska, City Atty., Beuker F. Amann, Asst. City Atty., for defendants New Orleans Police Department and City of New Orleans.

FRANK B. ELLIS, District Judge.

Harry's Steak House does not serve steaks or any other type of food. It is an establishment which provides its customers with alcoholic and other beverages for consumption on the premises; at times, a small band, often accompanied by a singing group, provides entertainment and music for dancing. Harry's is located in a predominantly Negro neighborhood and is patronized almost exclusively by Negroes.

Plaintiff and a friend, both white women, were frequenting Harry's on the evening of June 29, 1965. Defendants Sherer and Johnston were, and are, patrolmen in the New Orleans Police Department. While on routine patrol that evening, the police officers, both white men, observed plaintiff inside Harry's and, according to the complaint, advised her that Harry's was no place for a white woman. Plaintiff remained at Harry's, and was again observed there by the patrolmen, some two hours later. After two more hours passed, the patrolmen made another such observation; at that time, they arrested plaintiff and her friend for vagrancy and removed them from Harry's.

Plaintiff bases her suit solely on Title 42 U.S.C.A. §§ 2000a to 2000a-6, the public accommodations provisions of the Civil Rights Act of 1964 (Public Law 88-352, July 2, 1964, §§ 201-207). The pertinent provisions of that act are:

§ 2000a(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) * * *

(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) * * *

(c) The operations of an estabment affect commerce within the meaning of this subchapter if * * * (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; * * * For purposes of this section, "commerce" means travel, trade, traffic, commerce, transportation, or communication among the several States * * *.

(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.

§ 2000a-2 No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive, any persons of any right or privilege secured by section 2000a or 2000a-1 of this title, or (b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by section 2000a or 2000a-1 of this title, or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 2000a or 2000a-1 of this title.

§ 2000a-3 (a) Whenever any person has engaged * * * in any act or practice prohibited by section 2000a-2 of this title, a civil action for preventive relief * * may be instituted by the person aggrieved * * *.

§ 2000a-6 (a) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this subchapter * * *.

Thus, to maintain this action, plaintiff must show, first, that Harry's is one of the types of establishments covered by § 2000a(b)(2) or (3), and second, either that the operations of Harry's affect commerce as defined by § 2000a (c), or that discrimination or segregation by Harry's is supported by state action, as defined by § 2000a(d).

Type of establishment

Harry's is not covered by § 2000a (b) (2). A bar or nightclub that serves only drinks is not a "restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises." Congress limited the coverage of this subsection to establishments selling food. There is no reason to believe that Congress could not have constitutionally enacted a broader statute, covering establishments selling only drinks. It did not. Senator Magnuson, floor leader for the public accommodations subchapter of the Civil Rights Bill made it clear that a bar, as such, would not be covered by this subsection of the Bill.¹ On this point, this Court subscribes to the holding and reasoning of what are, apparently, the only reported cases to consider this problem, Tyson v. Cazes, 238 F.Supp. 937, 942 (E.D.La., Baton Rouge Div., 1965) and Cuevas v. Sdrales, 344 F.2d 1019 (10th Cir. 1965), and holds that Harry's Steak House, as a bar or nightclub serving only drinks, is not included within the scope of § 2000a(b) (2).

Plaintiff argues, however, that a bar or nightclub presenting entertainment that has moved in interstate commerce is within the scope of § 2000a(b)(3). The problem of statutory interpretation that confronts the Court is thus: is a so-called nightclub or cabaret included within the designation "motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment."

Any determination of the scope of the general phrase "other place of exhibition or entertainment" must be guided by the interpretative principle ejusdem generis: when specific terms in a statute are followed by general terms, the general terms are limited to matters similar to, or of the same general kind or class as, those specified.² But the rule does not require that the general provisions be limited in scope to the identical things specifically named; rather, the purpose of this aid to construction is to prevent the general words from extending the operation of the statute into a field not really intended.³ Thus "place of entertainment" is not to be construed to mean "place of enjoyment", but rather must be limited at least to "place where performances are presented."

There is no indication that Congress used the phrase in an artful sense that would require that it be given some other than its normal meaning. That normal meaning, limited to the general class of the...