Wimbish v. Pinellas County, Florida

• Decision Date: 23 February 1965
• Docket Number: No. 21494.,21494.
• Citation: Wimbish v. Pinellas County, Florida, 342 F.2d 804 (5th Cir. 1965)
• Parties: Ralph M. WIMBISH, Fred W. Alsup and Alphonso Mitchell, Appellants, v. PINELLAS COUNTY, FLORIDA, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

342 F.2d 804 (1965)

Ralph M. WIMBISH, Fred W. Alsup and Alphonso Mitchell, Appellants, v. PINELLAS COUNTY, FLORIDA, et al., Appellees.

No. 21494.

United States Court of Appeals Fifth Circuit.

February 23, 1965.

Fred G. Minnis, St. Petersburg, Fla., Frank H. Heffron, Jack Greenberg and Constance Baker Motley, New York City, for appellants.

William E. Allison, St. Petersburg, Fla., Page S. Jackson, Clearwater, Fla., for appellees.

Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and DYER, District Judge.

RIVES, Circuit Judge.

Defendant Pinellas County, Florida, leased certain of its undeveloped lands, which are adjacent to the County airport but not used for any part of the airport or for any other County purpose, to defendant Airco Golf, Inc., a Florida corporation. Defendant Airco Golf, Inc., as lessee, was obligated to use the premises only for a golf course, and it agreed to develop the property for that purpose and to construct, maintain and operate a regulation golf course thereon. The district court found that the plaintiffs were denied the right to play golf on the said golf course by the management solely because the plaintiffs were Negroes, while at the same time white persons have been permitted to play golf on the course. The primary question on appeal is whether the action of defendant Airco Golf, Inc., in denying the plaintiffs the use of the golf course, because of their race, is "state action" and thus prohibited by the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The district court held that the operation of the golf course was not "state action" and dismissed the plaintiff's complaint, which requested an injunction enjoining the defendants from denying the plaintiffs and others similarly situated the right to use the golf course, solely on account of their race.

The defendants argue that since there was no purpose of discrimination or reservation of control which could in any way authorize Pinellas County to require the corporation to follow any particular policy with respect to discrimination¹ and that since the operation of the golf course was not an integral part of a public facility,² the action of Airco Golf, Inc., was not that of Pinellas County, and through it the State of Florida.

To fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an "impossible task" which the Supreme Court has never attempted. "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 722, 81 S.Ct. 856, 860. We have noted that "when there is no purpose of discrimination, no joinder in the enterprise, or reservation of control by the county, it may lease for private purposes property not used nor needed for county purposes, and the lessee's conduct in operating the leasehold would be merely that of a private person." Derrington v. Plummer, 5 Cir. 1956, 240 F.2d 922, 925. (Emphasis supplied.)

Pinellas County executed the lease on July 18, 1961. The initial term was for twenty-five years with the right of renewal for an additional fifteen years. The lease provides that the "demised premises shall be used only for the construction and operation of a golf course and related facilities and the Lessee agrees to place improvements on said premises for said purposes." The plans and specifications for all improvements constructed on the premises must be submitted to and approved by Pinellas County and title to all improvements made on the property vests in the County. The prices charged for golf fees "shall not be reasonably less than or reasonably greater than prices which are customary and reasonable in the trade for comparable merchandise, service and facilities." The prices are subject to the approval of Pinellas County and are subject to review at any time by the County. Airco Golf, Inc., is required to establish daily memberships or green fees so that the use of the facilities will not be confined to persons holding memberships for a longer term. By these provisions we think the County has joined in the golf-course enterprise to such an extent that the Equal Protection Clause must be applied to Airco Golf, Inc.'s conduct in operating the leasehold.

The defendants contend that the execution of the lease was for additional revenue and not for the operation of a golf course and that the right of the County to approve green fees and audit the books enables the lessor to...