United States Servicemen's Fund v. Shands

• Decision Date: 11 March 1971
• Docket Number: Misc. No. 759.
• Citation: 440 F.2d 44
• Parties: UNITED STATES SERVICEMEN'S FUND, Margaret Ann McNeill, G. E. Waterhouse, David L. Bunten, Karen D. Yeager, and James Brozo, Plaintiffs, v. J. F. SHANDS and Wilson Yarborough, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

440 F.2d 44 (1971)

UNITED STATES SERVICEMEN'S FUND, Margaret Ann McNeill, G. E. Waterhouse, David L. Bunten, Karen D. Yeager, and James Brozo, Plaintiffs, v. J. F. SHANDS and Wilson Yarborough, Defendants.

Misc. No. 759.

United States Court of Appeals, Fourth Circuit.

March 11, 1971.

George S. Daly, Jr., and Joseph H. Tieger, Charlotte, N. C., for plaintiffs.

Heman R. Clark, Fayetteville, N. C., for defendants.

MEMORANDUM OF DECISION AND ORDER

CRAVEN, Circuit Judge.

On February 6, 1971, the plaintiffs sought to rent the Cumberland County Memorial Auditorium to put on what was described to the manager (Shands) as a variety show. A booking sheet was prepared indicating that James Brozo and the United States Servicemen's Fund were the sponsors of the event, that there would be a show at 3 p. m. and 8 p. m. and a tentative rental of $350 or 10 percent of net ticket sales. In the blank for insurance was written "Bod. Inj. $100,000 ea. person, $300,000 each accident — Property Damage $50,000 each accident, $100,000 aggregate." The wages of ticket sellers were listed to be $2 an hour and ticket takers $1.85 an hour, and policemen assigned to the event at $15 per man per performance. In the entry for parking it was indicated that the sand lot area would be reserved.

Thereafter, Manager Shands decided to refuse to release the auditorium and addressed a letter to Mr. Brozo and the United States Servicemen's Fund stating three reasons for his refusal:

1. It is my opinion that you attempted to acquire the lease of the Auditorium without a fair disclosure of the intended event. You described the event to me as a variety show consisting of comedians and musicians when in actuality it is to be an anti-war rally of political nature far removed from the variety show you would have had me believe.

2. It is my opinion, based on personal experience, that the potentially rebellious attitude of the audience your show is calculated to provoke will be too great a hazard in terms of property damage and community relations for this facility to risk.

3. It is my opinion that your proposed event would attract an excessive number of people to this facility, thereby creating a conflict in traffic harmful to an event scheduled in the Arena.

Plaintiffs then sought relief in the federal court, filing a complaint on February 26, to require defendants to rent the auditorium to the plaintiffs for the scheduled performances on March 14, 1971. There was a hearing on February 26, 1971, before The Honorable Algernon Butler, who entered on March 9, 1971, an order denying plaintiffs relief. From that order the plaintiffs have noted an appeal to the United States Court of Appeals for the Fourth Circuit and have brought the matter before me as a single circuit judge pursuant to Rule 8.

Before Judge Butler, and now before me, the defendants take the position that they may lawfully refuse to rent the public auditorium to plaintiffs because

(a) On December 5 they made the mistake of renting the auditorium to a rock music group and there was extensive damage to the premises, including 300 holes burned in the carpet and damage to the upholstered chairs.

(b) On March 14 the adjacent arena facility with a seating capacity of 7,000 people is rented to the Ringling Brothers Circus and it would be unfair to the circus to book a competing show in the auditorium at the same time.

(c) The type of entertainment plaintiffs want to put on amounts to a political rally and the auditorium is not suitable for such a rally.

(d) The entertainers expected to put on plaintiffs\' show include Jane Fonda, Dick Gregory and Elliott Gould and the nature of the show will be to present an anti-Vietnam war viewpoint, and that such a viewpoint is unpopular in Fayetteville because of the nearness of Fort Bragg and that the defendants fear it will be difficult to control the public attending the circus and the public attending the Jane Fonda show, and that possible violence might ensue.

Plaintiffs represent to the court that it is difficult to book nationally known entertainers and that they are committed for March 14 and cannot possibly return anytime soon thereafter.

Defendants concede that the arena will seat not more than 4,000 persons on Sunday, March 14 (its capacity is 7,000) because much of the seating space is utilized by the circus. The auditorium seats some 2,400 people, so that, assuming sell-out performances for both events, the total paid...