CRAVEN, Circuit Judge:
This is a class action brought to obtain injunctive relief and the award of counsel fees under Title II of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000a to a-6. Plaintiffs appeal from the decision of the district court holding that Negro citizens may be barred on account of their race and color from buying and eating barbecue at certain drive-in restaurants in South Carolina. We disagree and reverse.
The facts as found by the district court are not in dispute. Briefly stated,
All of Piggie Park's eating places are of the drive-in type. In order to be served, a customer drives upon the premises in his automobile and places his order through an intercom. When he pushes a button, his order is taken by an employee inside the building who is usually out of sight of the customer. A curb attendant delivers the food or beverage to the customer's car and collects for the same. Orders are served in disposable paper plates and cups. The food is served in such a way that it is ready for consumption. Half the customers eat it in their automobiles while parked on the premises. There are no tables, chairs, counters, bars, or stools at any of the drive-ins sufficient to accommodate any appreciable number of patrons.
Although Piggie Park and Bessinger denied in their Answer and two amended Answers that plaintiffs had been denied service at one or more of Piggie Park's drive-ins, it was uncontested at the trial that Piggie Park denied full and equal service to Negroes because of their race at all of its eating places.
The district court erroneously concluded that Piggie Park's drive-ins were not covered by the federal public accommodations
Such a construction, we think, finds no support in congressional history. The Congress did not intend coverage of the Act to depend upon a head count of how many people eat on the premises or a computation of poundage or volume of food eaten. If it had so intended, it would have been a simple matter to change the questioned phrase "for consumption on the premises" to read "actually consumed on the premises."
During the House hearings,
In our view, the emphasis in the phrase "principally engaged in selling food for consumption on the premises" is properly on the word "food". The term "principally" did not appear in the bill as introduced. It was added by the
The words in the statute "for consumption on the premises" modify the prior word "food" and describe the kind of food sold by other facilities that are covered similar to restaurants, cafeterias, lunchrooms, lunch counters, and soda fountains. The Congress clearly meant to extend its power beyond the ordinary sit-down restaurant and just as clearly did not undertake to legislate with respect to grocery type food stores which would have been covered but for the modifying phrase "for consumption on the premises." Thus, food stores are not covered, but stores (or facilities) that sell food of a particular type, i. e., ready for consumption on the premises, are covered. What the customers actually do with the ready-to-eat food was not the concern of the Congress — whether they eat it then and there or subsequently and elsewhere.
The sense of this plan of coverage is apparent. Retail stores, food markets, and the like were excluded from the Act for the policy reason that there was little, if any, discrimination in the operation of them. Negroes have long been welcomed as customers in such stores. See 110 Cong.Rec. 6533 (1954) (remarks of Senator Humphrey).
Discrimination with respect to ready-to-eat food service facilities was a problem. When a substantial minority of American citizens are denied restaurant facilities — whether sit-down or drive-in — that are open to the public, unquestionably interstate commerce is burdened. Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 6, 13 L.Ed.2d 15 (1964). It was this evil the Congress sought to eliminate to the end that all citizens might freely and not inconveniently travel between the states. We think the Congress plainly meant to include within the coverage of the Act all restaurants, cafeterias, lunchrooms, lunch counters, soda fountains, and all other facilities similarly engaged as a main part of their business in selling food ready for consumption on the premises. We are further of the opinion that the statutory language accomplished that purpose.
Title II as a whole demonstrates that the Congress intended to assure rapid and effective compliance with its terms.
In exercising its discretion, the district court may properly consider whether any of the numerous defenses interposed by defendants were presented for purposes of delay and not in good faith. But the test should be a subjective one, for no litigant ought to be punished under the guise of an award of counsel fees (or in any other manner) from taking a position in court in which he honestly believes — however lacking in merit that position may be.
The court may also consider whether the defendants acted in good faith in denying discrimination against Negroes and thus requiring proof of what was subsequently conceded to be true. A litigant who increases the burden upon opposing counsel by such tactics ought ordinarily bear the cost of unnecessary trial preparation. The so-called "general denial" is not countenanced by the Federal Rules of Civil Procedure.
Reversed and remanded for consideration of the award of counsel fees.
WINTER, Circuit Judge, with whom SOBELOFF, Circuit Judge, joins (concurring specially):
Wholeheartedly I agree that Title II of the Civil Rights Act of 1964, 42 U.S. C.A. § 2000a et seq., is applicable to Piggie Park's drive-in type facilities, and I join in the reasons advanced for that conclusion. I agree also that the case should be remanded for consideration of an award of counsel fees, but I conclude that good faith, standing alone, should not always immunize a defendant from an award against him. Specifically, in this case, defendants are not entitled to the defense of good faith in regard to the major portion of their defenses.
The district judge is told that in exercising his discretion he should "consider whether any of the numerous defenses interposed by defendants were presented for purposes of delay and not in good faith" because no defendant ought to be punished for "taking a position in court in which he honestly believes — however lacking in merit that position may be." (emphasis supplied) In this case, defendants interposed defenses patently frivolous, and I would not permit them to avoid the costs of overcoming such defenses on a purely subjective test of good faith.
In providing for counsel fees, the manifest purposes of the Act are to discourage violations, to encourage complaints by those subjected to discrimination and to provide a speedy and efficient remedy for those discriminated against. If counsel fees are withheld or grudgingly granted, violators feel no sanctions, victims are frustrated and instances of unquestionably illegal discrimination may well go without effective remedy. To immunize defendants from an award of counsel fees, honest beliefs should bear some reasonable relation to reality; never should frivolity go unrecognized.
While the threat of an award of counsel fees ought not to be used to discourage non-frivolous defenses asserted in good faith, the district court should be instructed to make an allowance in regard to some of defendants' defenses and, in its discretion, to consider an allowance for the remainder of defendants' defenses depending upon its determination of defendants' good faith and honest belief. Those clearly compensable are defendants' assertion that their "Little Joe's Sandwich Shop," a sit-down facility shown overwhelmingly by the proof to be a place where service was refused to Negro citizens, was not subject to the Act. The fact that the
Only as to the remaining defenses do I think that defendants' good faith is the issue. If good faith is found not to have existed as to them, an additional award of counsel fees on a like basis should be made.
We find no legislative history suggesting that "principally" was inserted to eliminate eating places doing a predominantly carry-out service.