Tillman v. Wheaton-Haven Recreation Ass'n, Inc.

• Decision Date: 16 December 1971
• Docket Number: No. 14957.,14957.
• Citation: 451 F.2d 1211
• Parties: Murray TILLMAN et al., Appellants, v. WHEATON-HAVEN RECREATION ASSOCIATION, INC., et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

451 F.2d 1211 (1971)

Murray TILLMAN et al., Appellants, v. WHEATON-HAVEN RECREATION ASSOCIATION, INC., et al., Appellees.

No. 14957.

United States Court of Appeals, Fourth Circuit.

October 27, 1971.

Rehearing and Suggestion for Rehearing Denied December 16, 1971.

Allison W. Brown, Jr., Washington, D.C. (Raymond W. Russell, Rockville, Md., on the brief), for appellants.

Henry J. Noyes, Rockville, Md., and H. Thomas Howell, Baltimore, Md. (John H. Mudd, Baltimore, Md., on the brief), for appellees.

Philip J. Tierney, Asst. County Atty., for Montgomery County, Maryland (David L. Cahoon, County Atty., Alfred H. Carter, Deputy County Atty., and Stanley D. Abrams, Asst. County Atty., for Montgomery County, Md., on the brief), for Montgomery County, Maryland, amici curiae.

Before HAYNSWORTH, Chief Judge, and BOREMAN and BUTZNER, Circuit Judges.

Rehearing and Suggestion for Rehearing En Banc Denied December 16, 1971.

HAYNSWORTH, Chief Judge:

The question is whether the Wheaton-Haven Recreation Association, a non-profit group operating a member-owned swimming pool, is required to admit persons as members or guests without regard to race. We find neither the Civil Rights Act of 1866 (42 U.S.C.A. §§ 1981 & 1982) nor the Civil Rights Act of 1964 (42 U.S.C.A. § 2000a et seq.) applicable to this association and affirm the order of the District Court granting summary judgment for the defendants.

The pertinent facts are not in dispute, and, as stated by the District Court, are as follows:

Wheaton-Haven was organized in 1958 for the purpose of operating a swimming pool in an area of Silver Spring, Maryland. The pool was financed by subscriptions for membership collected from persons residing in the area. The pool presently charges a $375 initiation fee and annual dues of $50-$60. Under the by-laws, membership is open to "bona fide residents (whether or not homeowners) of the area within a three-quarter mile radius of the pool." Members may be taken from anywhere outside the three-quarter mile radius upon the recommendation of a member as long as members from outside the area do not exceed thirty per cent of the total membership. In either event, applicants for membership must be approved by "an affirmative vote of a majority of those present at a regular membership meeting, or a regular meeting of the Board of Directors, or a special meeting of either group called for this purpose."

Membership, which is by family units rather than by individuals, was limited to 325 families, but that limit has never been reached.¹ In practical application, membership is not limited to the geographic area. If a member who is also a homeowner sells his property and resigns his membership, his purchaser receives a first option to purchase his membership, subject to the approval of the Board of Directors.

Only members and their guests are admitted to the pool. Members of the general public cannot gain admittance by payment of an entrance fee.

Dr. and Mrs. Harry C. Press, two of the Negro plaintiffs, own a home within the three-quarter mile radius of the pool. The previous owner of the home was not a member of Wheaton-Haven. In 1968 Dr. Press sought to obtain an application for membership from members of the Board of Directors, who declined to furnish him with an application. The stipulated reason for their refusal was his race.

Mr. and Mrs. Murray Tillman are members of Wheaton-Haven. The Tillmans brought Mrs. Grace Rosner, a Negro, to the pool as their guest. She was admitted. Within a few days, Wheaton-Haven promulgated a rule limiting guests to relatives of members. Mrs. Rosner has been refused admission as a guest of the Tillmans since then. Her admission on the first occasion was at least partially responsible for the adoption of the guest limitation rule, although it was also intended to reduce the burgeoning number of guests using the pool.

The pool was constructed by a Virginia building contractor. The pool's operation involves the use of machinery manufactured outside Maryland. Snack vending machines are located in the pool area. All of the facilities are in an enclosed area accessible only to members and their guests.

Construction of the pool was done pursuant to a special exception under the zoning ordinances of Montgomery County, Maryland granted by the Montgomery County Board of Appeals. A special exception is unlike a variance; its grant is required whenever an applicant demonstrates compliance with certain conditions. Wheaton-Haven was required to demonstrate its financial responsibility by submitting evidence that 60 per cent of its projected construction costs were obligated or subscribed.

Wheaton-Haven pays state and local real property taxes but is exempt from state and federal income taxes under Md. Code Ann., Art. 81, § 288(d) (8) and 26 U.S.C.A. § 501(c) (7).

The plaintiffs contend that Wheaton-Haven's discriminatory denial of membership to Dr. Press violates 42 U.S.C.A. §§ 1981 and 1982² on the ground that membership is a species of personal property or a form of leasehold interest in real property, the right to purchase which may not be denied him by any person on the ground of his race. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189. Alternatively, admission to membership is said to be a contract between the association and the member, and the right to make such a contract may not be denied him by the association because he is a Negro. Mrs. Rosner is said to have an enforceable interest in the Tillmans' membership contract as a third party beneficiary, or, if their membership be considered as a leasehold, she has an enforceable easement of ingress and egress.

The plaintiffs further argue that Wheaton-Haven is a "covered establishment" under the Civil Rights Act of 1964 (42 U.S.C.A. § 2000a) as a place of entertainment affecting commerce, and that it does not qualify for the "private club" exemption from the Act's requirement of non-discrimination because, as a matter of law, it is not private under the principles of Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed. 2d 386.

I

In arguing that Wheaton-Haven's racial limitation on membership is forbidden by the 1866 Civil Rights Act, the plaintiffs perforce seek the application of the interpretation placed upon § 1982 in Jones v. Alfred H. Mayer Co., supra. Their reliance on Jones is misplaced, for in that case the Supreme Court had to consider only the Act of 1866. It was not faced with the question whether a specific provision of a subsequently enacted statute may have limited its effect.³ This appeal does present that question. If §§ 1981 and 1982 may be said to cover the admission of members or guests to a recreational facility, and to forbid racial discrimination in their selection, it is beyond question that the same conduct is covered by the Act of 1964.

However, the Act of 1964 contains an express proviso that in certain limited cases, involving the admissions policies of "a private club or other establishment not in fact open to the public,"⁴ racial discrimination is not forbidden. This exception to the ban on racial discrimination of necessity operates as an exception to the Act of 1866, in any case where that Act prohibits the same conduct which is saved as lawful by the terms of the 1964 Act.⁵ Consequently, §§ 1981 and 1982 are unavailable to the plaintiffs as a separate and independent basis for relief. If Wheaton-Haven is a private club as defined in the 1964 Act, the exemption contained in that Act is equally applicable to the earlier statutes.

II

Since the decision in Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386, the analysis of an organization's claim to exemption from federal requirements of non-discrimination has acquired a double aspect. The threshold question is whether the organization is one which satisfies the traditional tests of privacy. See Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318, NeSmith v. Y.M.C.A. of Raleigh, North Carolina, 4 Cir., 397 F.2d 96, United States v. Richberg, 5 Cir., 398 F.2d 523. Sullivan introduced an additional consideration, however. To qualify for the exemption an organization must not only be private internally; it must, in addition, be not so intimately related to an establishment or transaction in which non-discrimination is required that it can be said to be a part of, or its membership an incident to, the larger, basically commercial, establishment or transaction. If such a relationship exists, the organization, no matter how internally private it may be, will be subjected to any requirement of non-discrimination that may be applicable to the other.⁶ Because Sullivan involved an organization similar in many respects to Wheaton-Haven, the plaintiffs strongly urge that the case requires that, as a matter of law, Wheaton-Haven be declared not to be a private club. This argument, we think, ignores certain fundamental differences between the two organizations and fails to appreciate the significance of the Supreme Court's holding in Sullivan.

Little Hunting Park is a Virginia nonstock corporation which operates recreational facilities. Its membership was limited to persons who resided in or owned property in the Bucknell Manor, Beacon Manor, White Oaks and Bucknell Heights residential subdivisions in Fairfax County, Virginia.⁷ The number of membership shares which any person might own was limited only by the number of lots he owned in the named subdivisions.⁸ Paul Sullivan owned a house in the designated area and, in consequence, owned a membership share in Little Hunting Park. Later he bought a second house in the area, into which he moved, while retaining ownership of the first. This entitled him to purchase a second membership share, which he did. After moving, Sullivan leased his old house to T. R. Freeman, Jr., a Negro. With the lease of the home he made a temporary assignment of his second...