Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 87-2929.
The complaint alleges that LSC is a place of public accommodation within the meaning of Title II, which has engaged in a pattern or practice of discrimination by refusing membership to blacks because of their race or color, in violation of Title II. On May 10, 1989, following a non-jury trial, the district court filed its findings of fact and conclusions of law. The court concluded that LSC is not exempt from Title II as a private club under 42 U.S.C. § 2000a(e), that it is covered by Title II as a place of public accommodation under 42 U.S.C. § 2000a(b)(2), (3) and (4), and that it has engaged in a pattern or practice of racial discrimination in violation of Title II, 42 U.S.C. § 2000a-5(a). On June 20, 1989, the district court entered a broad injunctive order to remedy the situation. This appeal followed.
We have jurisdiction under 28 U.S.C. § 1291 (1982).*fn2 We review findings of fact under the clearly erroneous standard. Fed. R.Civ.P. 52(a). To the extent that we review the application of the law to the facts, our review is plenary. Petrella v. Kashlan, 826 F.2d 1340, 1343 (3d Cir.1987).
LSC's first argument is that it is a private club. Under Title II, "a private club or other establishment not in fact open to the public" is exempt from the statute. 42 U.S.C. § 2000a(e). LSC has the burden of proving it is a private club. See Anderson v. Pass Christian Isles Golf Club, Inc., 488 F.2d 855, 857 (5th Cir. 1974). Although the statute does not define "private club", cases construing the provision do offer some guidance.*fn3 The district court distilled eight factors from the case law as relevant to this determination, three of which it found dispositive of LSC's public nature: the genuine selectivity of its membership process, e.g., Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 438, 35 L. Ed. 2d 403, 93 S. Ct. 1090 (1973), its history, e.g., Cornelius v. Benevolent Protective Order of Elks, 382 F. Supp. 1182, 1203 (D. Conn. 1974), and use of its facilities by nonmembers, id. Appellant disputes these findings.
First, the court concluded that LSC's membership process was not genuinely selective. Essential to this conclusion was the court's finding that "LSC possesses no objective criteria or standards for admission." The court identified four "criteria" for admission to LSC: being interviewed, completing an application, submitting two letters of recommendation and tendering payment of fees. We agree, and LSC apparently concedes, that these criteria were not genuinely selective.*fn4 Nonetheless, LSC challenges the court's failure to consider membership approval a criterion for admission. We agree with the district court, however, that a formal procedure requiring nothing more than membership approval is insufficient to show genuine selectivity. See Tillman, 410 U.S. at 438-39. In addition, LSC stipulated that the only information given to the members prior to the membership vote is the applicants' names, addresses, their children's names and ages, and the recommenders' identities. In such a situation, the court was correct to conclude that LSC "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." Therefore, even if membership approval were considered a fifth criterion, it would not make the process any more genuinely selective in this case.
The district court also found the yields of the membership process indicative of lack of selectivity. Since 1958, LSC has granted full memberships to at least 1400 families while denying them to only two non-black families. LSC contends that emphasizing the few instances of non-black applicant rejection "[misconstrues] the significance of selectivity. The crucial question should be whether the members exercised their right to be selective rather than the statistical results of the exercise of that right." As the Court of Appeals for the Fourth Circuit noted a decade ago, formal membership requirements "have little meaning when in fact the club does not follow a selective membership policy." Wright v. Salisbury Club, Ltd., 632 F.2d 309, 312 (4th Cir. 1980) (citing Tillman, 410 U.S. at 438-39). We find the evidence of lack of selectivity convincing.
Second, the court concluded that "the origins of LSC suggest that it was intended to serve as a 'community pool' for families in the area and not as a private club." We believe there was ample evidence to support this finding. A founder of LSC testified that LSC was created as a community pool for the neighborhood children. LSC's stipulations confirm the public nature of the facility: organizers solicited Lansdowne-area residents, conducted public recruitment meetings and accepted every family that applied for membership before opening.
Third, the court concluded that use of the facility by non-members "undercut LSC's claim that it is a private club." Among other reasons, the court cited the following factors. LSC hosts several swim meets and diving meets each year but does not prohibit the general public from attending. LSC also sponsors two to four pool parties each year, for which members and associates may sell an unlimited number of tickets to persons who are not members. In addition, LSC's basketball and volleyball courts, located on its parking lot, are open to the public. Finally, LSC permits the local Boys' Club to use its parking lot for an annual Christmas tree sale that is open to the public. Although LSC contends such use is de minimus, we are persuaded otherwise.
LSC also contends that it is not a "place of public accommodation" as defined in Title II. Under the statute, a place of public accommodation has two elements: first, it must be one of the statutorily enumerated categories of establishments that serve the public,*fn5 42 U.S.C. § 2000a(b); second, its operations must affect commerce, id.
The district court concluded that the whole complex, both the recreational areas and the snack bar, was an establishment which served the public. The court began by identifying LSC as a "place of . . . entertainment", one of the categories of covered establishments. "LSC concedes that its swimming and other recreational areas make it an 'establishment'", but maintains that the snack bar is not a covered establishment. The district court held that "bifurcation has no support in the plain language of the Act or the case law interpreting it." Under the facts in this case, we agree. Nonetheless, the court also found the snack bar to be a "facility principally engaged in selling food for consumption on the premises", another category of covered establishments. LSC stipulated that ...