BELL, Circuit Judge.
Appellants sought injunctive relief under the Civil Rights Act of 1964, 42 U.S.
The Act provides, in pertinent part, as follows:
It will thus be seen that coverage of the restaurant depends on any one of three facts having been established: (1) that it serves or offers to serve interstate travelers, or (2) that a substantial portion of the food which it serves has moved in commerce, or (3) that the discrimination or segregation is supported by state action.
There was no showing that the discrimination was supported by state action. The proof, however, was more than ample otherwise and we reverse. Only the factual conclusions reached are in dispute. There is no dispute as to the underlying facts. The conclusions of the District Court that the restaurant did not offer to serve interstate travelers, and that the proof did not establish that a substantial portion of the food served had moved in interstate commerce are clearly erroneous.
The restaurant in question was located three blocks from a federal highway and was on a street which was an extension of the highway. All comers, except Negroes, were served. The Act covers a restaurant that offers to serve interstate travelers. As the Supreme Court of Georgia said in a similar case:
There the restaurant was on the highway; here it is in such close proximity to the highway as to make it probable that it will have interstate patrons. The testimony was that customers were not questioned as to tourist status, and that tourists were not rejected as customers. One white interstate customer was served without inquiry as to his status. As the United States points out in an amicus curiae brief, this is not the "isolated or remote lunchroom" referred to in Heart of Atlanta Motel, Inc., v. United States, 1964, 379 U.S. 241, 275, 85 S.Ct. 348, 13 L.Ed.2d 258. Concurring opinion of J. Black.
The District Court found also that the proof did not establish that a
This proof brings the case within the rationale of Katzenbach v. McClung, 1964, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290, involving Ollie's Barbecue, a family owned restaurant in Birmingham, Alabama. Ollie's purchased $150,000 worth of food locally of which forty six per cent was meat that had been procured from outside Alabama. There the District Court found that a substantial portion of the food served in the restaurant had moved in interstate commerce. The Supreme Court held that this finding was an adequate basis for coverage. This question of amount is relative and it may not be said here that a substantial portion of the food served had not moved in interstate commerce.
The District Court erred in granting summary judgment for the defendants, and in having failed to grant summary judgment for appellants. The restaurant offered to serve interstate travelers within the meaning of the Act. Also, a substantial portion of the food it served had moved in interstate commerce.
Reversed and remanded with directions to enter summary judgment for appellants.