United States v. DeRosier

• Decision Date: 12 January 1973
• Docket Number: No. 72-1039.,72-1039.
• Citation: 473 F.2d 749
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. William DeROSIER and Mildred DeRosier, d/b/a Northwood Bar, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

473 F.2d 749 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. William DeROSIER and Mildred DeRosier, d/b/a Northwood Bar, Defendants-Appellees.

No. 72-1039.

United States Court of Appeals, Fifth Circuit.

January 12, 1973.

Robert W. Rust, U. S. Atty., Miami, Fla., Peter Mear, Gerald W. Jones, Dept. of Justice, Washington, D. C., for plaintiff-appellant.

J. Luther Drew, West Palm Beach, Fla., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

The question involved on this appeal is whether an establishment, characterized as a "neighborhood bar", which derives a small portion of its total business from mechanical amusement devices which have moved in interstate commerce is a "place of entertainment" within the meaning of Title II of the Civil Rights Act of 1964, Title 42, U.S.C. Section 2000a et seq., and therefore subject to its provisions.

Defendants-appellees are the owners of The Northwood Bar, a neighborhood bar-tavern in West Palm Beach, Florida, open to the general public for the sale of beer and wine. Located therein for the use and enjoyment of patrons are a juke box, shuffle board and pool table, all manufactured outside the State of Florida. The devices are coin operated or activated, the revenue from them constituting 3% of appellee's business, dollarwise.

On April 29, 1971, the United States filed suit in the lower court against the defendants-appellees, seeking to enjoin alleged racial discrimination in the operation of The Northwood Bar. The complaint alleged that The Northwood Bar was a "place of entertainment" within the provisions of the Civil Rights Act of 1964, supra, in that it provided entertainment which moved in interstate commerce and that defendants-appellees operated the bar in a fashion which discriminated against Negroes by refusing them service on the same basis as the service provided white members of the general public. The complaint prayed for appropriate injunctive relief.

After receiving a pre-trial stipulation of facts and conducting a pre-trial conference, the district judge, 332 F.Supp. 316, found there was no genuine issue as to any material fact and concluded that the mere presence of three coin-operated machines manufactured outside the state was not sufficient to regard the bar as a "place of entertainment" covered by the Act. Accordingly, he granted defendants-appellees' motion for summary judgment, Rule 56, F.R.Civ.P. The United States entered a timely appeal. We reverse.

Title II of the Civil Rights Act of 1964 is a sweeping prohibition of discrimination or segregation on the ground of race, color, religion, or national origin at places of public accommodation whose operations affect commerce. Sections 2000a(a) and (b)(3) provide:

"(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 accommodations, 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. . . .

* * * * * *

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment . . ."

Section 2000a(c)(3) defines the term "affect commerce" as meaning that the operations of a Section 2000a(b)(3) establishment

". . . customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce . . ."

"Commerce" was defined as:

". . . . travel, trade, traffic, commerce, transportation, or communication among the several States. . . ."

Although recognizing that the Act was not designed to cover all establishments, this Court en banc concluded that Sections 2000a(b)(3) and (c)(3) must be read "with open minds attuned to the clear and strong purpose of the Act, namely, to secure for all citizens the full enjoyment of facilities described in the Act which are open to the general public. That Title II of the Civil Rights Act is to be liberally construed and broadly read we find to be well established." Miller v. Amusement Enterprises, Inc., 5 Cir. 1968, 394 F.2d 342, 349. Thus we read the statute, particularly the term "place of entertainment", as did the Supreme Court in Daniel v. Paul, 1969, 395 U.S. 298, 307-308, 89 S. Ct. 1697, 1702, 23 L.Ed.2d 318, 326, according to its generally accepted meaning so as to give full effect to Congress' overriding purpose of eliminating the affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.

With this purpose as our lodestar, we compare the facts of the instant case with the "generally accepted meaning" of the Act and find that, at least facially, the presence of the out-of-state manufactured juke box, shuffle board and pool table for the use and enjoyment of the bar's patrons would quite comfortably comport with a literal, but liberal, interpretation of the Act's language. Certainly an establishment which provides mechanical devices for the use and enjoyment of its patrons or customers is a "place of entertainment". Just as logically, these devices are, by use if not by definition, "sources of entertainment" which here were not only "customarily" presented, but permanently provided for the entertainment of the establishment's customers. Lastly, these devices have moved in "commerce" when they were manufactured in one state and used for their intended purpose in another.

As opposed to this literal reading of the statute, defendants-appellees suggest that the phrase "other place of exhibition or entertainment" in Section 2000a(b)(3) refers to facilities similar in kind to those enumerated in the statute: "theater, concert hall, . . . stadium", etc., which are devoted to exhibitions of skill or which are devoted entirely or substantially to the entertainment of the public. We cannot, however, read those limitations into the statute because the words of the statute do not require that we do so and the expressed intent of the statute prohibits us from doing so. The statute does not require that the entertainment be of a certain variety or that a certain quantum of the establishment's business be derived from the entertainment of its customers. On the contrary, the statute clearly specifies that ". . . any . . . place of entertainment" is a place of public accommodations within its meaning if that establishment's operations affect commerce. (Emphasis added).

Additionally, as the Supreme Court held in Daniel v. Paul, supra, at 308, 89 S.Ct. at 1702, 23 L.Ed.2d at 327, the legislative history of Section 2000a (c)(3) indicates that Congress specifically considered such mechanical and stationary machines such as a juke box, shuffle board and pool table, to be "sources of entertainment" within the meaning of Section 2000a(c)(3). Indeed, "The Senate rejected an amendment which would have ruled out most mechanical sources by requiring that the source of entertainment be one which has `not come to rest within a State.' 110 Cong. Rec. 13915-13921 (1964)." Id. at n. 11.

Contrary to defendants-appellees intimation, the United States need not show that any person, because of race, color, religion, or national origin, had been deprived of any right to use those devices which caused the establishment to be characterized a "place of entertainment". Once it was shown, as here, that the establishment is a "place of entertainment", and thus a place of public accommodation, the Act proscribes any and all efforts to deny one "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodation" of that place because of discrimination based on race, color, religion or national origin. The statute is not limited to proscribing discrimination only as to the enjoyment of those devices which make the establishment a place of public accommodation. Thus, as a matter of law, defendants-appellees Northwood Bar is a "place of public accommodation" within the Civil Rights Act of 1964 because of its being a "place of entertainment" within the Act.

In their answer to the complaint, defendants-appellees denied having discriminated against any person or persons because of race, color or creed. Since it is incumbent upon the United States to prove the contrary, the judgment of the district court granting summary judgment is reversed and the case is remanded to the district court with directions to afford the United States an opportunity to prove its allegations that defendants-appellees have violated the 1964 Civil Rights Act by discriminating against Negroes by refusing them service on the same basis as service is provided to members of the white race. If so, the United States is entitled to the injunctive relief sought.

Reversed and remanded.

JOHN R. BROWN, Chief Judge (concurring):

I concur fully in the result and the excellent opinion of Judge Simpson for the Court. I add again, only by way of emphasis, how sterile is the dismissal of a complaint for failure to state a claim based upon the pleadings. Now this case has to go back for an ascertainment of facts which are probably uncontradicted on the practices of this particular neighborhood bar. Having asserted with such vigor — and with all propriety under the law — that it was not covered since it did not have to afford its entertainment to persons without regard to race, it is highly unlikely that the establishment will now come in and attempt to prove that after all they had never violated the law at all even as we have held.

The facts could readily have been reduced to an uncontradicted form — in all likelihood — by affidavits and counter-affidavits, stipulations and the like for summary...