The opinion of the court was delivered by: O'NEILL, JR.
THOMAS N. O'NEILL, JR., UNITED STATES DISTRICT JUDGE:
The United States brought this action against the Lansdowne Swim Club ("The Club", "LSC"), alleging that it is a place of public accommodation that discriminates in its membership policies and practices against blacks on the basis of their race or color
in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-2000a-6.
The Attorney General is authorized to bring this action on behalf of the United States. 42 U.S.C. § 2000a-5(a).
I have jurisdiction under 42 U.S.C. § 2000a-6(a) and 28 U.S.C. § 1345.
LSC denies that it is a place of public accommodation, claims that it is a private club exempt from the coverage of Title II, and denies that it has discriminated. This Memorandum sets forth my findings of fact and conclusions of law as to these issues, as required by Fed. R. Civ. P. 52(a).
For the reasons that follow, I conclude that LSC is a place of public accommodation, is not a private club, and has engaged in a pattern or practice of discrimination against blacks in its membership policies.
Lansdowne Swim Club is a Pennsylvania nonprofit corporation which owns and maintains facilities at the corner of Burmont Road and Baltimore Pike in Lansdowne, PA. Stipulation of Facts ("Stip.") 1, 3; Defendant's Exhibit ("DX") 1. It is the only swimming facility in Lansdowne, except for pools located on personal property. Stip. 6. LSC opened its facilities in 1958 (Stip. 2) and has been open every summer since then.
LSC's recreational facilities include a swimming pool with diving and sliding boards, a wading pool, lounging and sunbathing areas, shower and dressing facilities, ping pong tables, horseshoes, lounge chairs, umbrellas, picnic tables, and basketball and volleyball facilities. Stip. 21-31, 33-39. There is an entrance gate into the Club property off Burmont Road that leads to the parking area, where the basketball and volleyball equipment is located. Kressley Testimony, Tr. 6/17/88, at 18; Stip. 91. From the parking area, a ramp leads to an enclosed area where the pool is located. Kressley, at 18. The pool is accessible through a gate, which is staffed by LSC employees who admit members, associates and guests during normal pool hours. See Cunningham Testimony, Tr. 6/16/88, at 4-5; Kressley, at 18-19. LSC leases a portion of its facilities to a concessionaire as a snack bar. Stip. 52.
The Club is managed by a twelve-person Board of Directors, including a President, Vice-President, Secretary and Treasurer. DX 3a (Art. II, Secs. 1, 2(a)). The shareholder members of the LSC are referred to in the Club's Bylaws as "active" members. Stip. 106; DX 2 (Art. IV, Sec. 1). Membership is evidenced by a capital share, or "bond", which has a par value of $ 250. Stip. 108; DX 1 (Art. 9). The Club limits its shareholder members to 500. Stip. 142. LSC also permits persons and families, known as "associates", to use its facilities for one season only. Stip. 107. The Club's general policy is that before being elected to membership an applicant must use the facilities of LSC for one swimming season as an associate. Stip. 110.
Prior to 1979, all applicants for shareholder membership or associate privileges were required to be approved by the Membership Committee and elected to membership by the Board of Directors. Stip. 113-114; DX 2 (Art. IV, Sec. 2). Since 1979, all applicants must be approved by ninety percent of the shareholders present and voting at the annual meeting. Stip. 115-117. At this meeting, voting members cast ballots anonymously: an affirmative vote is cast by not listing the applicant's name on the ballot, and a negative vote is cast by listing the applicant's name. Stip. 118-119. Since 1985, the attendance of one of the applicant's sponsors at the annual meeting has also been required. Stip. 173-175.
any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises. Id. § 2000a(b)(2).
any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment. Id. § 2000a(b)(3).
any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment. Id. § 2000a(b)(4).
The operations of an establishment covered by section 2000a(b)(2) affect commerce if the establishment "serves or offers to serve interstate travelers or a substantial portion of the food which it serves . . . has moved in commerce." Id. § 2000a(c)(2). The operations of an establishment covered by section 2000a(b)(3) affect commerce if the establishment "customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce." Id. § 2000a(c)(3). The operations of an establishment covered by section 2000a(b)(4) affect commerce if the establishment "is physically located within the premises of, or there is physically located within its premises, an establishment the operations of which affect commerce within the meaning of this subsection." Id. § 2000a(c)(4).
A. PLACE OF ENTERTAINMENT
The Lansdowne Swim Club is a place of entertainment pursuant to section 2000a(b)(3). At its facilities, members, associates and guests (and members of the public in some instances), are amused and entertained by swimming, diving, sunbathing and "people-watching". They also consume snack food and beverages; talk to and associate with each other; play basketball, volleyball, ping pong and horseshoes; participate in and observe swimming and diving meets; and attend pool parties which sometimes include musical entertainment. See Stip. 20-47.
It is well-established that a place of entertainment includes an establishment where entertainment takes the form of direct participation in an activity or sport. See Daniel v. Paul, 395 U.S. 298, 306-08, 23 L. Ed. 2d 318, 89 S. Ct. 1697 (1969);
see also, e.g., Evans v. Seaman, 452 F.2d 749, 751 (5th Cir.) (roller skating rink), cert. denied, 408 U.S. 924, 33 L. Ed. 2d 335, 92 S. Ct. 2493 (1972); Miller v. Amusement Enters., Inc., 394 F.2d 342, 350-51 (5th Cir. 1968) (en banc) (amusement park);
Brown v. Loudoun Golf & Country Club, 573 F. Supp. 399, 402 (E.D. Va. 1983) (golf club); United States v. Slidell Youth Football Ass'n, 387 F. Supp. 474, 482 (E.D. La. 1974) (youth football league). This interpretation of the term entertainment comports with its generally accepted meaning
and the overriding purpose of Title II, "to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public." Daniel, 395 U.S. at 307-08. In accordance with the holding and rationale of Daniel, the Court of Appeals for the Second Circuit concluded that a swim club is a place of entertainment. Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333, 1340 (2d Cir. 1974).
Although LSC concedes that its swimming and other recreational areas constitute a place of entertainment, it contends that this designation is limited to its "recreational areas". Defendant's Brief in Support of its Proposed Findings of Fact and Conclusions of Law [hereinafter Defendant's Brief], at 4. Thus, LSC appears to be dividing its facilities into entertainment and nonentertainment areas. This bifurcation has no support in the plain language of the Act or the case law interpreting it. Once an establishment is determined to be a place of entertainment, the entire facility is identified as such. See Daniel, 395 U.S. 298, 23 L. Ed. 2d 318, 89 S. Ct. 1697 (recreational facility including swimming, boating, sunbathing and picnicking areas, miniature golf, dancing facilities, and a snack bar); Olzman, 495 F.2d 1333 (swim club including swimming pool, wading pool, parking area and snack bar); Miller, 394 F.2d 342 (amusement park including mechanical rides, ice skating rink during winter, and small concession stand); United States v. Johnson Lake Inc., 312 F. Supp. 1376 (S.D. Ala. 1970) (recreational complex including swimming, picnicking and dancing areas, snack bar, pool tables, jukebox and gum machine); Evans v. Laurel Links, 261 F. Supp. 474 (E.D. Va. 1966) (golf course with lunch counter); cf. Martin v. United Way, 829 F.2d 445, 449-50 (3d Cir. 1987) (noting that the Supreme Court in Daniels "held that the entire facility was a place of entertainment 'affecting commerce'. . . .").
As a place of entertainment, the operations of LSC affect commerce because LSC customarily presents sources of entertainment which move in interstate commerce. A "source of entertainment" is "the utilization of a device or an implement to engage in an entertaining activity". Slidell Youth Football Ass'n, 387 F. Supp. at 483. The sliding board at LSC, which the Club bought in 1968, was manufactured in Texas. Stip. 444(c), (d); Government's Exhibit ("GX") 108.
The sliding board is a source of entertainment because patrons use the slide to entertain themselves in the pool.
Participants in activities are also considered sources of entertainment for purposes of Title II. See Scott v. Young, 421 F.2d 143, 144 (4th Cir.), cert. denied, 398 U.S. 929, 26 L. Ed. 2d 91, 90 S. Ct. 1820 (1970); Brown, 573 F. Supp. at 402; Johnson Lake, 312 F. Supp. at 1380; Laurel Links, 261 F. Supp. at 477. Some of the persons who have used the Club's facilities are out-of-state residents. Stip. 51. For example, in 1986, the Club's guest receipts show that there were 117 visits by out-of-state guests; in 1987 there were 165 visits. See GX 106, 107.
Therefore, the sources of entertainment in this case are the sliding board and the Club's out-of-state visitors.
The pool chemicals,
the ladder and dolly,
and the payroll forms
are not sources of entertainment. Simply because swimming may be difficult or impossible without these materials does not make them sources of entertainment. Such a far-reaching interpretation would be contrary to the liberal but literal application of this term by other Courts, which have found various devices to be sources of entertainment. See Daniel, 395 U.S. at 308 (paddle boats, boat and jukebox); United States v. DeRosier, 473 F.2d 749, 751-52 (5th Cir. 1973) (jukebox, shuffleboard and pool table); Seaman, 452 F.2d at 751 (roller skates and their replacement parts); Scott, 421 F.2d at 144-45 (canoes and umbrellas); United States v. Central Carolina Bank & Trust Co., 431 F.2d 972, 974-75 (4th Cir. 1970) (golf equipment); Durham v. Red Lake Fishing & Hunting Club, 666 F. Supp. 954, 959 (W.D. Tex. 1987) (boats, camping equipment and guns); Slidell Youth Football Ass'n, 387 F. Supp. at 484 (football equipment); United States v. Vizena, 342 F. Supp. 553, 554-55 (W.D. La. 1972) (jukebox, records, pool table and equipment).
The sliding board and the guests have "moved in commerce" because they originated in a state other than Pennsylvania, the state where they are presented. See Daniel, 395 U.S. at 308;
see also Miller, 394 F.2d at 351-52; Vizena, 342 F. Supp. at 555.
Finally, LSC "customarily" presents these interstate sources of entertainment. Customarily means "by custom", which is defined as "a form or course of action characteristically repeated under like circumstances", "a usage or practice that is common to many or to a particular place or class or is habitual with an individual," or a "repeated practice." Laurel Links, 261 F. Supp. at 477. Senator Magnuson, the Senate floor manager of Title II, stated that "customarily" meant "more than occasionally. Some significant percentage of the performances occurring in an establishment must move in interstate commerce if it is to come within the purview of title II." 110 Cong. Rec. 7406 (1964). Any of these definitions is satisfied here. LSC's sliding board is "not only 'customarily' presented, but permanently provided for the entertainment of the establishment's customers." DeRosier, 473 F.2d at 752. Moreover, the number of guests from out of state (13% of the guests in 1986 and 8% in 1987) is significant and the use of the facilities by them is regular. Cf. Brown, 573 F. Supp. at 402 (commerce requirement satisfied by annual golf tournament in which out-of-state professionals and club members play); Evans, 261 F. Supp. at 477 (commerce requirement satisfied by golf team from out-of-state playing on course once a year).
I do not accept LSC's attempt to nullify the significance of the attendance of out-of-state guests. First, I do not believe that the United States must prove that these guests actually used the pool in order to be considered sources of entertainment. The existing records reveal only who entered the premises, not who actually used the pool or the other facilities; therefore, it would be difficult, if not impossible, for the government to determine who used the facilities. Imposition of such a requirement also would run counter to the broad definition of entertainment that has been developed in the case law. Even if these guests did not participate in any activities at the Club, they would be sources of entertainment to others at the pool who are "people-watching," a popular amusement at any swimming pool or beach. See Scott v. Young, 307 F. Supp. 1005, 1007 (E.D. Va. 1969), aff'd, 421 F.2d 143. Second, the fact that LSC does not advertise for out-of-state patrons is not critical. In Miller, 394 F.2d 342, the case cited by defendant to support its contention that the government must show solicitation of out-of-state residents to satisfy the commerce requirement, evidence of advertising was necessary because there was no direct proof of the place where each patron originated. Miller, 394 F.2d at 349. In this case, however, LSC and the government stipulated that out-of-state residents patronized the facility; in addition, the government presented evidence of how many of them were admitted into the facility in recent years. A greater showing is not required.
B. SNACK BAR AS COVERED ESTABLISHMENT
LSC is an establishment within the premises of which is physically located a covered establishment, a facility engaged in selling food for consumption on the premises, and which holds itself out as serving patrons of that covered establishment, the snack bar.
The snack bar at LSC is leased to a concessionaire who operates it. Stip. 52. Food and drink purchased from the bar cannot be taken from the snack bar and ticket booth areas. See GX 56 (1962 Rules and Regulations); GX 57 (1964 Pool Regulations); GX 58 (1978 Pool Regulations); GX 59 (1979 Pool Regulations); GX 60 (1986 Pool Regulations). The bar sells hamburgers, hot dogs, french fries, coffee, pizza, candy, tea, soda and hot chocolate to the members, guests and employees of the Club. Stip. 53-62.
When John and Carolyn Doucas operated the snack bar,
the carbonated "Coca-Cola" soft drinks sold at the snack bar were purchased from the Coca-Cola Bottling Co. of Philadelphia. Stip. 444(a). These beverages were manufactured using syrup concentrate produced in Baltimore, Maryland. Stip. 444(b). The coffee sold at the snack bar comes from beans grown outside the continental United States. GX 120.
Nonresidents of Pennsylvania have been served by the operators of the snack bar. Stip. 64, 66.
It is undisputed that the snack bar sells food for consumption on the premises. Stip. 53. Thus, the snack bar at the Club is a "facility principally engaged in selling food for consumption on the premises" pursuant to 42 U.S.C. § 2000a(b)(2). Accord Daniel, 395 U.S. at 303-04 (snack bar in recreational area); Fazzio Real Estate v. Adams, 396 F.2d 146, 150 (5th Cir. 1968) (snack bar in bowling alley); United States v. Beach Assocs., Inc., 286 F. Supp. 801, 806 (D. Md. 1968) (restaurant adjoining beach club); Johnson Lake, 312 F. Supp. at 1378-81 (snack bar in recreational area).
The Club holds itself out as serving patrons of the snack bar: the bar serves the members, associates, guests and employees of LSC, Stip. 63-66; conversely, LSC provides entertainment to those who patronize the bar. Cf. Adams v. Fazzio Real Estate, 268 F. Supp. 630, 638-39 (E.D. La. 1967), aff'd, 396 F.2d 146 (5th Cir. 1968)(to satisfy "holding out" requirement, not necessary to show that primary function of bowling alley is to serve patrons of refreshment counter). Defendant disputes that the snack bar satisfies this requirement because the bar is not independent of the other facilities and, as such, "there are no 'patrons' of the snack bar who are not already 'patrons' of LSC." Defendant's Brief, at 6. The Supreme Court's decision in Daniel refutes defendant's argument, however. In Daniel, the snack bar encompassed only a small portion of a larger recreational area, the Lake Nixon Club, to which blacks were denied admission. See Daniel, 395 U.S. at 301. Thus, it appears there were no patrons of the snack bar who were not already patrons of the recreational facility. The Supreme Court did not discuss whether the Lake Nixon Club held itself out as serving patrons of the Club's snack bar. See id. at 302-08. Moreover, the Court did not distinguish the decision in Adams, 396 F.2d 146, on which it relied to reach its conclusion that the snack bar brought the entire facility within the coverage of the Title II. Daniel, 395 U.S. at 305. Any distinction between the cases apparently was not material to the Court's conclusion.
The operations of LSC's snack bar affect commerce because it serves and offers to serve interstate travelers. This standard is "satisfied by minimal evidence." Adams, 268 F. Supp. at 639 n.19. It is undisputed that nonresidents have used the Club's facilities and have been served at the snack bar. The statute does not designate how many nonresidents must be served within a certain period of time in order to "affect commerce". I have already concluded that the number of out-of-state guests who have patronized LSC is significant. See supra p. slip op. at 12. This requirement need not be fulfilled by showing solicitation of out-of-state residents. Cf. Daniel, 395 U.S. at 304; Newman v. Piggie Park Enters., 256 F. Supp. 941, 951 (D. S.C. 1966), rev'd on other grounds, 377 F.2d 433 (4th Cir. 1967) (both cases showing that out-of-state residents were patrons of facility because it advertised). As I have previously stated, evidence of solicitation is simply a substitute for direct evidence of attendance by out-of-state residents, see supra p. slip op. at 13; in this case the government need not show that LSC advertised for nonresident patrons because it has been stipulated that the snack bar has in fact served them.
I also find that the snack bar offers to serve interstate travelers because LSC offers to serve all persons who use the Club's facilities, including out-of-state guests. See Daniel, 395 U.S. at 304; Gregory v. Meyer, 376 F.2d 509, 510 (5th Cir. 1967); United States v. All Star Triangle Bowl, Inc., 283 F. Supp. 300, 302 (D. S.C. 1968); Laurel Links, 261 F. Supp. at 476.
Finally, the operations of the snack bar affect commerce because a "substantial" portion of the food served at the bar has moved in interstate commerce in accordance with 42 U.S.C. § 2000a(c)(2).
Substantial has been defined as "anything more than a minimal or insignificant amount". Gregory, 376 F.2d at 511 n.1, cited with approval in Daniel, 395 U.S. at 305; accord Newman, 256 F. Supp. at 950-51 (Substantial is "something of real worth and importance; of considerable value; valuable; something worthwhile as distinguished from something without value or merely nominal.") (footnote omitted).
Ingredients in the soda and coffee sold at the snack bar originated outside Pennsylvania. I take judicial notice of the fact that many of the purchases at a swimming pool's snack bar, open during the hot summer months, include a cold drink. The primary cold drinks sold at the snack bar are "Coca-Cola" soft drinks, which contain an essential ingredient that has moved in commerce.
I recognize that in Daniel, 395 U.S. at 305, the Court found that a substantial portion of food had moved in commerce where "three of the four food items sold at the snack bar contain[ed] ingredients originating outside of the State."
This conclusion does not necessitate a finding that the government's showing is insufficient here. The Court did not set forth a minimum test of substantiality which would have to be satisfied in the future. Without more specific guidance, I must give the term "substantial" its natural reading "in light of the overriding purpose of Title II 'to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.'" Daniel, 395 U.S. at 307-08; see also Miller, 394 F.2d at 349.
The operations of LSC affect commerce because the snack bar is physically located within its premises. "The snack bar's status as a covered establishment automatically brings the entire . . . facility within the ambit of Title II." Daniel, 395 U.S. at 305.
For all of the above reasons, I find that the Club is a place of public accommodation within the meaning of 42 U.S.C. § 2000a(b)(4), as well as under § 2000a(b)(3).
III. PRIVATE CLUB EXEMPTION
LSC claims that it is exempt from the coverage of Title II because it is a private club pursuant to 42 U.S.C. § 2000a(e).
That section provides, in pertinent part: "The provisions of [Title II] shall not apply to a private club or other establishment not in fact open to the public. . . ." "The test of whether a private club, or an establishment not open to the public, is exempt from title II, relates to whether it is, in fact, a private club, or whether it is, in fact, an establishment not open to the public." 110 Cong. Rec. 13,697 (1964) (remarks of Sen. Long).
LSC bears the burden of demonstrating that it is a private club. See Anderson v. Pass Christian Isles Golf Club, Inc., 488 F.2d 855, 857 (5th Cir. 1974); United States v. Richberg, 398 F.2d 523, 529 (5th Cir. 1968); Nesmith v. YMCA, 397 F.2d 96, 101 (4th Cir. 1968); Brown v. Loudoun Golf & Country Club, Inc., 573 F. Supp. 399, 402 (E.D. Va. 1983); Wright v. Cork Club, 315 F. Supp. 1143, 1150 (S.D. Tex. 1970). The defendant possesses this burden "because [it] claimed the shelter of an exception, . . . and because the facts of proof are with [it]." Richberg, 398 F.2d at 529 (citations omitted).
The statute itself does not define a private club: "the statute sets forth a factual test of sorts -- 'not in fact open to the public,' but it does not define 'private club'." Cork Club, 315 F. Supp. at 1150 (footnote omitted). The limited legislative history of section 2000a(e) provides me with only broad guiding principles. The private club exemption "must be examined in the light of the Act's clear purpose of protecting only 'the genuine privacy of private clubs * * * whose membership is genuinely selective * * *.'" Nesmith, 397 F.2d at 101-02 (citing remarks of Sen. Humphrey, 110 Cong. Rec. 13,697 (1964)). This exemption must also be examined in light of the remedial purpose of the Act, to eliminate racial discrimination in places open to the public. See Cork Club, 315 F. Supp. at 1150; see also supra p. 795 & n. 21 (discussing general remedial purpose of Title II).
The few decisions of the Supreme Court addressing the scope of section 2000a(e) are of limited value in developing a comprehensive definition of a private club, perhaps because they clearly involved shams. See Cork Club, 315 F. Supp. at 1151. In Daniel v. Paul, 395 U.S. 298, 23 L. Ed. 2d 318, 89 S. Ct. 1697 (1969), the Lake Nixon Club was a recreational area in which 100,000 whites per season were given "membership" cards for paying a 25 cent "membership" fee. The Court concluded that this requirement was a subterfuge designed to avoid the impact of the Civil Rights Act. Id. at 302. The facility was "simply a business operated for a profit with none of the attributes of self-government and member-ownership traditionally associated with private clubs." Id. at 301. In Sullivan v. Little Hunting Park, 396 U.S. 229, 24 L. Ed. 2d 386, 90 S. Ct. 400 (1969), the facility was a community park and playground where membership could be obtained as a tenant of an existing member who had assigned his or her share. Id. at 234-35. The Supreme Court concluded that Little Hunting Park was not a private social club, but rather "a device functionally comparable to a racially restrictive covenant, . . ." Id. at 236. The organization had "no plan or purpose of exclusiveness. It is open to every white person within the geographic area, there being no selective element other than race." Id. Finally, in Tillman v. Wheaton-Haven Recreational Ass'n, 410 U.S. 431, 35 L. Ed. 2d 403, 93 S. Ct. 1090 (1973), the Court followed Sullivan and concluded that a community swimming pool open to all whites within a geographic area was not a private club. Id. at 438. The Court reached this conclusion despite a restriction on the number of memberships and a formal membership procedure which required board or membership approval. Id. at 438-39.
Other Courts interpreting section 2000a(e) have not relied on a single test to determine if an establishment is a private club. Instead, they have weighed a variety of relevant factors. "Each factor is considered and either tips the balance for or against private club status." Cork Club, 315 F. Supp. at 1150; see also Nesmith, 397 F.2d at 101-02. I agree that a factor analysis is appropriate. The following factors are relevant to this determination and will be considered:
1. The genuine selectivity of the group in the admission of its members. See, e.g., Tillman, 410 U.S. at 438; Nesmith, 397 F.2d at 102; Durham v. Red Lake Fishing & Hunting Club, 666 F. Supp. 954, 960 (W.D. Tex. 1987); Brown, 573 F. Supp. at 402-03; United States v. Trustees of Fraternal Order of Eagles, 472 F. Supp. 1174, 1175-76 (E.D. Wis. 1979); Cornelius v. Benevolent Protective Order of Elks, 382 F. Supp. 1182, 1203 (D. Conn. 1974) (three-judge panel); United States v. Jordan, 302 F. Supp. 370, 375 (E.D. La. 1969);
2. The membership's control over the operations of the establishment. See, e.g., Durham, 666 F. Supp. at 960; Jordan, 302 F. Supp. at 375-76;
4. The use of the facilities by nonmembers. See, e.g., Eagles, 472 F. Supp. at 1175; Cornelius, 382 F. Supp. at 1203;
5. The purpose of the club's existence. See, e.g., Jordan, 302 F. Supp. at 376;
6. Whether the club advertises for members. See, e.g., Wright v. Salisbury Club, Ltd., 632 F.2d 309, 312-13 (4th Cir. 1980); Eagles, 472 F. Supp. at 1175; Cornelius, 382 F. Supp. at 1203; Cork Club, 315 F. Supp. at 1152;
7. Whether the club is profit or nonprofit. See, e.g., Daniel, 395 U.S. at 301; Cornelius, 382 F. Supp. at 1203;
8. The formalities observed by the club, e.g., bylaws, meetings, membership cards. See, e.g., Nesmith, 397 F.2d at 102; Durham, 666 F. Supp. at 960; Jordan, 302 F. Supp. at 376.
Upon consideration of the factors listed above, I conclude that LSC has not established that it is a private club.
The genuine selectivity of the membership process is the most important factor in ascertaining private club status. During the floor debate regarding section 2000a(e), Senator Humphrey stated: "We intend only to protect the genuine privacy of private clubs or other establishments whose membership is genuinely selective on some reasonable basis." 110 Cong. Rec. 13,697 (1964). Moreover, Courts construing this provision, including the Supreme Court, have concluded that genuine selectivity is an integral characteristic of a private club. See, e.g., Tillman, 410 U.S. at 438; Sullivan, 396 U.S. at 236; Salisbury Club, 632 F.2d at 312; Durham, 666 F. Supp. at 960; People of the State of New York v. Ocean Club, 602 F. Supp. 489, 495 (E.D. N.Y. 1984); Brown, 573 F. Supp. at 403; Eagles, 472 F. Supp. at 1175; Cornelius, 382 F. Supp. at 1203; Cork Club, 315 F. Supp. at 1151; Jordan, 302 F. Supp. at 375.
A number of features reflect a club's genuine selectivity in membership practices:
the substantiality of the membership fee, see Brown, 573 F. Supp. at 403; the numerical limit on club membership (apart from the capacity of the facilities), see Jordan, 302 F. Supp. at 375; the membership's control over the selection of new members, see Daniel, 395 U.S. at 301 and Jordan, 302 F. Supp. at 375; the formality of the club's admission procedures, see Brown, 573 F. Supp. at 403; the standards or criteria for admission, see Nesmith, 397 F.2d at 102 and Cork Club, 315 F. Supp. at 1151; and whether and how many white applicants have been denied membership relative to the total number of white applicants, see Tillman, 410 U.S. at 438 & n. 9; Salisbury Club, 632 F.2d at 312; Durham, 666 F. Supp. at 960; Ocean Club, 602 F. Supp. at 495; Brown, 573 F. Supp. at 403; Eagles, 472 F. Supp. at 1176; Jordan, 302 F. Supp. at 375.
I conclude that LSC has not demonstrated that its membership procedures are genuinely selective on some reasonable basis.
Shareholder membership in LSC is evidenced by a capital share, or bond, which has a par value of $ 250. Stip. 108; DX 1 (Art. 9). The Club may have only 500 shareholder members at any given time. Stip. 142; DX 1 (Art. 9). In 1987, LSC had 494 such members. DX 76. The Board of Directors may provide for use of the Club's facilities by an unspecified number of individuals or families as associates, whose applications are processed and submitted to the membership for approval in the same manner as those of shareholder members. Stip. 143. The Club does not have a written limit on the number of associates it will admit for the year. Stip. 107, 109. The Board determines the number of associates to be accepted based on estimates of the number of active members who will not use the facilities during the ensuing season and the number of associates from the previous year who intend to reapply. Stip. 145-147. The number of associates admitted each year has varied. Stip. 144.
A shareholder member pays $ 250 for the capital share or bond. DX 1 (Art. 9). Such a member also pays $ 32 annual dues for up to three family members and $ 14 for each additional family member. DX 8 (Minutes of Jan. 13, 1985). An associate pays $ 230 per season. Id. The government admits that the dues paid by members and associates are "not insignificant". Plaintiff's Pre-Trial Brief, at 25.
Prior to 1979, the Club's Bylaws stated that individuals or families desiring membership had to be approved by the Membership Committee and elected to membership by the Board of Directors. Stip. 113-114; DX 2 (Art. IV, Sec. 2). The Bylaws further provided that each applicant for membership had to be sponsored by two active members and that the Board of Directors could make such rules and regulations "with respect to the means of determining the qualifications and the desirability of admitting applicants to membership as they deem in the best interests of the Club." DX 2 (Art. IV, Sec. 7). After a family requested membership, a person on the Membership Committee interviewed the family; at the time of the interview, the Club required that a written application be completed and payment for the stock be tendered. See GX 124, at 24, 32. The purpose of the interview was to explain to the applicant the Club's activities, rules and procedures, and to complete the application. Boyd Testimony, Tr. 6/17/88, at 54-55. The application form asked for name, address, phone, occupation, name of spouse, names and birthdates of children, and names of two sponsors. GX 89. Before 1969, applicants were required only to provide the names of their sponsors; no written recommendations were required. Beginning in late 1969, letters of reference were required from the sponsors. GX 72 (Minutes of Sept. 14, 1969).
Prior to 1979, the Club did not conduct any background investigation of membership applicants. GX 122, at 102. The record does not reveal that the Club had any articulated standards or criteria for approving applications. After taking an application, the Membership Committee forwarded it to the Board of Directors, who voted on it. GX 122, at 98-99. Until 1967, the Board of Directors voted on the applications in groups rather than individually. See GX 69 (Minutes of April 16, 1967).
Except for applicants who were accepted as associates in the previous year, a member of the Membership Committee visits applicants. The purposes of the interview are only to describe the Club in general, to explain the membership procedure and to verify the names and ages of any children in the applicant's family. Stip. 126-128. Other than the names and ages of the children, the Club does not provide voting members with any information about the interviews. Stip. 129. Applications for membership usually are completed by the interviewer and signed by the applicant at the applicant's residence. Stip. 153-156.
Prior to the vote by the general membership, letters of recommendation from two active Club members must be submitted and reviewed by the Membership Committee. Stip. 130-131. Ordinarily, these letters are not seen by the voting members prior to the vote and, other than the identities of the recommenders, no information about the contents of the letters is provided to these members. Stip. 132-133. Applicants are directed to submit the application, the required payment and letters of recommendation to the Membership Chairman by a stated deadline, which is imposed to allow sufficient time for preparation of a list of applicants for the annual voting meeting. Stip. 159-167.
Applicants who have been interviewed, have completed an application, have submitted letters of recommendation and have paid all fees are listed in a notice distributed to members in advance of the special meeting. Boyd, at 37-38. The only information given to the members prior to the meeting is the applicants' names, addresses, names and ages of children, and the identities of the recommenders. Stip. 125; see also GX 99-102 (Notices of Special Meeting of Members for 1983, 1984, 1985, 1986).
The Club does not investigate the background, character or financial status of the applicants. Stip. 134-139. The Club does not have an absolute requirement that applicants reside in a particular geographic area, as it has admitted nonresidents of Lansdowne as both members and associates. Stip. 148-150.
Since 1958, LSC has admitted at least 1400 shareholder member families (Stip. 245) and a large number of associate families.
Before the Club opened, 418 applications for membership were accepted (Stip. 176); none were rejected (Stip. 19). Since it opened, only four applications of non-black families have been rejected. In 1967, the application of the M family
for membership was rejected by the Board of Directors. Stip. 249-251; DX 6 (Minutes of May 14, 1967). The E family's application for membership was also rejected that year. Stip. 246-248; DX 6 (Minutes of May 14, 1967). In 1982, the voting membership of LSC rejected the application of the B family for membership. Stip. 252-254. LSC rejected the application for associate privileges of the V family in 1984. Stip. 258-260.
The Club may have rejected another application for associate privileges by a white family, but it cannot identify the name of that family. Stip. 262.
Although LSC requires substantial membership fees, places a limit on the number of shareholder members, and utilizes a formal admission procedure that has been controlled by the shareholder members since 1978, the process is not genuinely selective. LSC possesses no objective criteria or standards for admission. "If there is no established criteria for selecting members, the courts are reluctant to accept the claim of private status." Cork Club, 315 F. Supp. at 1151 (citation omitted). The applicants are not investigated in any meaningful way. "Where there is a . . . policy of admission without any kind of investigation of the applicant, the logical conclusion is that membership is not selective * * *." Nesmith, 397 F.2d at 102 (citations omitted). The Club's interview of potential members is not probing and, moreover, provides no information to voting members that is useful in making an informed decision as to whether the applicant and his or her family would be compatible with the existing members. Although recommendations are required, their contents are not revealed to the members.
The fact that recommendations are required is an insufficient demonstration of selectivity. See, e.g., Tillman, 410 U.S. at 433, 438; Salisbury Club, 632 F.2d at 312; Brown, 573 F. Supp. at 403; Ocean Club, 602 F. Supp. at 495. The existence of substantial dues also does little to strengthen LSC's claim of selectivity. In other Courts, clubs with substantial dues were not able to sustain their burden of demonstrating that they were private clubs. See, e.g., Tillman, 410 U.S. at 433 n. 2 ($ 375); Olzman, 495 F.2d at 1335 ($ 2000); Brown, 573 F. Supp. at 400, 403 ($ 750).
A country club with a membership procedure similar to LSC failed to show that it was a private club. Ocean Club, 602 F. Supp. at 495. The Court described the Ocean Club's membership procedures as follows:
The application for membership is uninformative. It seeks only the name and address of the applicant, the type of business, names of the immediate family and the listing of two club members as references. [footnote omitted]. No investigation is made of the applicant. An interview is conducted by one member of the membership committee or at times by [two other club officials]. The interview did not probe into the background and character of the applicant, but rather explained the facility and services available to members. Sometimes applicants were ...