U.S. Power Squadrons v. State Human Rights Appeal Bd.

• Decision Date: 31 December 1981
• Citation: 84 A.D.2d 318,445 N.Y.S.2d 565
• Parties: In the Matter of UNITED STATES POWER SQUADRONS, Petitioner, v. STATE HUMAN RIGHTS APPEAL BOARD, Respondent. In the Matter of GREAT NECK POWER SQUADRON, INC., Petitioner, v. STATE HUMAN RIGHTS APPEAL BOARD, Respondent. In the Matter of HEMPSTEAD BAY POWER SQUADRON, INC., Petitioner, v. STATE HUMAN RIGHTS APPEAL BOARD, Respondent. In the Matter of WESTCHESTER POWER SQUADRON, INC., Petitioner, v. STATE HUMAN RIGHTS APPEAL BOARD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 565

445 N.Y.S.2d 565

84 A.D.2d 318

In the Matter of UNITED STATES POWER SQUADRONS, Petitioner, v. STATE HUMAN RIGHTS APPEAL BOARD, Respondent.

In the Matter of GREAT NECK POWER SQUADRON, INC., Petitioner, v. STATE HUMAN RIGHTS APPEAL BOARD, Respondent.

In the Matter of HEMPSTEAD BAY POWER SQUADRON, INC., Petitioner, v. STATE HUMAN RIGHTS APPEAL BOARD, Respondent.

In the Matter of WESTCHESTER POWER SQUADRON, INC., Petitioner, v. STATE HUMAN RIGHTS APPEAL BOARD, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 31, 1981.

Barry Golomb, New York City and Donald K. Barnes, Pompano Beach, Fla., for petitioner.

Katherine Levitan, Mineola and Steven R. Shapiro, New York City, for complainants Arutt and Adler.

Ann Thacher Anderson, New York City (Elaine Berger, New York City, of counsel), for State Division of Human Rights.

Robert Abrams, Atty. Gen., New York City (Sheila Abdus-Salaam, Asst. Atty. Gen., New York City, Shirley Adelson Siegel, Sol. Gen., Albany, and Peter Bienstock, Asst. Atty. Gen., New York City, of counsel), intervenor pro se.

Robert A. Yothers, Seattle, Wash., for Conference of Private Organizations amicus curiae.

Before LAZER, J. P., and RABIN, COHALAN and BRACKEN, JJ.

LAZER, Justice Presiding.

The issue here is sex discrimination; the activity is power-boating. Aggrieved by determinations of the State Human Rights Appeal Board and the State Division of Human Rights that denial of membership and its privileges to women by three chapters of the United States Power Squadrons (USPS) constitutes unlawful discrimination under section 296 (subd. 2, par. ) of the Executive Law, the USPS and the three chapters seek annulment of the determinations. USPS is a nonprofit organization, among whose objectives are "to establish a high standard of skill in the handling and navigation of yachts; to encourage the study of the science of navigation and small boat handling; to co-operate with the agencies of the United States Government charged with the enforcement of the laws and regulations relating to navigation and to stimulate interest in activities which tend to the up-building of our Army, Navy, Coast Guard, and Merchant Marine." Each of the chapter petitioners--Hempstead Bay Power Squadron, Great Neck Power Squadron and Westchester Power Squadron--limits its membership to male citizens over the age of 18. The legal issue is whether membership and membership privileges in the petitioning Power Squadrons may be characterized as "accommodations, advantages, facilities or privileges" of "placeof public accommodation, resort or amusement" as defined in the Executive Law (§ 296, subd. 2, par. We find the characterization to be proper and conclude that confirmation is required.

In 1914, representatives of 20 yacht clubs formed the United States Power Squadrons as an organization intended to encourage skill and ability in the relatively new sport of motor boating. In 1920, USPS made organizational changes which it described as "the cornerstone of our strength." The changes mandated that each member was first to be deemed a member of USPS and then a member of his local squadron; membership was to consist "of any worthy man who passed the entrance examination (rather than being restricted to members of yacht clubs); and that USPS should stress nautical education and nothing else" (see United States Power Squadrons 1971 Officers' Manual, p. 4). To realize these objectives, USPS, until 1975, mandated that each local chapter conduct a free basic boating course. The local chapters were permitted to open the basic boating course to the public, including women, and could admit women to advanced courses conducted by the chapter, upon successful completion of the basic boating course. Most local chapters then permitted women to attend courses.

Each of the three petitioning chapters extended its basic boating course to the public and permitted women to take advanced courses upon successful completion of the basic boating course. However, certain advantages and privileges accrued solely to members. Because membership supposedly demonstrated a knowledge of boating, insurance carriers offered members discounts on boat insurance; members also received free admission to boat shows, discounts on nautical equipment, and could subscribe to USPS's official publication, The Ensign, at a discount. While USPS did not solicit subscriptions to The Ensign from the public at large, it did accept subscriptions from nonmembers at a higher nonmember's price. Another advantage of membership was the privilege of flying the USPS flag, which the organization described as "an outward and visible sign that the boat displaying it is under the charge of a capable person who has made a study of piloting and small boat handling and will recognize the rights of others and the traditions of the sea."

USPS urged its local chapters to recruit new members from the basic boating course. In its Procedural Manual for Membership Committees, the USPS membership committee instructed the local squadrons to give the enrollees of the basic boating course "indoctrination lectures" on the advantages of membership and to give enrollees "a broadly worded hint that 'a large percentage of the students may be invited to join'." An article entitled "Strike While the Iron is Hot" in the March, 1973 edition of The Ensign, urged that "the quicker you get the invitations to the students, the better the response", and noted that "squadrons actually are able to issue the invitations 'on the spot' within a few minutes after the student has completed his exam."

Consistent with this policy, the Great Neck Power Squadron extended membership invitations to nearly all of the men who passed the basic boating course. Bertha Adler, a complainant in this case, completed the basic boating course in 1961, took advanced courses, and ultimately taught advanced courses. Nevertheless, she was denied membership in USPS and the Great Neck Power Squadron because she is a woman. On October 10, 1973, Mrs. Adler sent a letter to the Chief Commander of USPS and the Great Neck Power Squadron Commander stating that she wanted "to assume equal responsibility in USPS so that I, too, can promote Safe Boating" and deploring USPS's membership policies. She received no response.

Charlotte Arutt, another complainant in this case, took the basic boating course conducted by the Hempstead Bay Power Squadron in 1965. She testified that the course proctors made "statements from time to time encouraging people to become members." Upon her successful completion of the course, Mrs. Arutt attended a ceremony where she observed several men from her class being inducted into membership. At that ceremony, she was informed that she could not take the membership pledge because she is a woman. In October, 1973 she reapplied for membership and was informed again that she was not eligible for membership because she is a woman.

The third complainant, Leslie Mayer, took the basic boating course offered by the Westchester Power Squadron in September, 1973. Both she and her husband successfully completed the course, but only her husband was invited to become a member of the Westchester Power Squadron.

Each of the complainants filed complaints with the State Division of Human Rights in June, 1974. USPS membership practices were also being challenged in New Jersey, where it was held that "denial of membership was an act of proscribed sex discrimination in violation of the public accommodation provision of N.J.S.A. 10:5-12(f)" (see Hinden v. United States Power Squadrons, Superior Ct. N.J.App.Div., June 18, 1975, A3104073, petition for certification den. N.J. Supreme Court, 69 N.J. 382, 354 A.2d 310, cert. den. 426 U.S. 943, 96 S.Ct. 3160, 49 L.Ed.2d 1180). On June 1, 1973, the hearing examiner in the New Jersey case issued recommended findings of fact and conclusions of law to that effect. On September 9, 1973, USPS adopted new membership procedures and set forth, inter alia, the following general rules:

"A. Do not mention membership or any of its benefits or 'sell' USPS at any Boating Course class.

"B. Do not use the term 'recruit or recruitment' with respect to membership.

"C. Do not advertise or publicize USPS membership or its benefits in public relation activities, boat-shows, public events, etc.

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"E. Divorce the invitation of prospective members from the boating class. A minimum period of three weeks shall elapse after a boating class examination before any potentially desirable candidate is contacted in any manner, concerning possible membership in USPS, or any proposal for membership is submitted on his behalf."

At a meeting of the USPS operating committee on December 9, 1973, it was noted that "numerous letters have been received by the Membership Committee indicating that confusion exists over the new membership policies." On September 6, 1974, the operating committee discussed the "urgent" need to have "adequate material on membership policies that may be presented to the courts to defend the USPS position" in New York and formally adopted a "Statement of Membership Policy" which said that "the law prevents USPS members from discussing membership lest solicitation of the students in such public classes be implied." Thereafter, the Commander of the Westchester Power Squadron noted, in the May-June, 1975 issue of Current Set and Drift, the Squadron's official publication:

"Every member has been concerned and confused by the recent changes in membership procedures. Careful thought reveals that this is not a change of concept, but rather a more definitive method of assuring that each new member is an asset to the Squadron. This will aid in our desire to remain a 'private organization' and insure our ability to continue with our educational and social goals. Under the current program we have few restrictions in obtaining new members."

At the suggestion of its...