RUBIN, District Judge.
The plaintiff contends that the defendants have denied him the right to bowl in their bowling alley and that this deprives him of rights granted him by the Civil Rights Act of 1964.
Section 201 of the Civil Rights Act of 1964 declares that all persons are entitled to the full and equal enjoyment of any place of public accommodation as
Thus, if a covered establishment is located within an establishment not otherwise covered by the law, it may by its very presence make the larger establishment subject to the Act. The defendants operate a facility that they call a snack bar, and the plaintiff contends that this is a covered establishment, for the Act applies to "* * * any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises * * *."
The defendants, Fazzio Real Estate Co., Inc., Fazzio's Recreation Center, Inc., and Dominico E. Fazzio, own and operate Fazzio's Bridge Bowl ("Fazzio's"), which is located on the West Bank of the Mississippi River in Algiers, directly across the river from New Orleans.
Fazzio's is located off the West Bank Expressway (U. S. Highway 90), directly across the highway from the Algiers Fisher Project (a federal low-rent housing project) where the plaintiff lives. It is clearly visible to anyone traveling on the Expressway. However, a chain link fence six feet high separates Fazzio's
Together with a number of other Negroes who reside in New Orleans, plaintiff went to Fazzio's on March 30, 1967, to bowl. Defendant refused to let plaintiff or the other persons who were with him bowl because they were Negroes.
Fazzio's is housed in a building containing 29,900 square feet. An area containing about 18,600 square feet is devoted to bowling alleys. An area of approximately 9,500 square feet is devoted to equipment counters and other facilities necessary for bowling. An area of approximately 1,200 square feet is used as a lounge for the sale of alcoholic beverages. The premises also contain a counter where beverages and food are sold. The plaintiff calls this a "lunch counter," obviously because the Civil Rights Act applies in haec verba to "any lunch counter." Signs in the bowling alley refer to it as a "snack bar," and the defendants prefer this designation, obviously because it is not one used by the Civil Rights Act. For purposes of this opinion, this area will be called by the suitably neutral name of refreshment counter.
The area is approximately 37 feet long and 13 feet wide. It has stools for the seating of 15 people. The principal items sold are beer, soft drinks (including Coca Cola), hamburgers, hot dogs, coffee, and other similar items. Customers are not asked whether or not they live in Louisiana. Non-residents are not denied service. Fazzio's does not advertise its refreshment counter service except by signs inside the bowling alley.
The refreshment counter is located directly behind the bowler's end of the bowling lanes. They are fully accessible to each other, and they are not separated by a partition or screen of any kind.
Fazzio's offers bowlers what it considers a unique service. Each lane is connected with the refreshment counter by an intercom, and a bowler can place an order for beverages or food without leaving his place at the alley. Such orders are delivered to bowlers by a porter. At the bowlers' end of each alley, there is a space for the seating of spectators. Spectators as well as bowlers are allowed to take food and beverages from the refreshment counter to the seating area. Chairs in the seating area have special racks to hold beverage containers.
Fazzio's urged that more than 50% of the sales made at the refreshment counter are sales of beer, therefore the facility is principally engaged in selling beer, and beer is not a food. This conclusion is sought to be supported by the decision in Cuevas v. Sdrales, 10 Cir., 1965, 344 F.2d 1019, cert. denied 1966, 382 U.S. 1014, 86 S.Ct. 625, 15 L.Ed.2d 528, in which it was held that bars and taverns where the sale of drinks is the principal business are not covered establishments.
The bowling alley building also contains a "lounge area" which is leased to a third person. This lounge is devoted primarily to the sale of alcoholic beverages. The plaintiff urges, however, that if the bowling alley is a covered establishment, the lounge would also become covered; lunch counter brings in bowling alley; bowling alley brings in lounge. However, the operators of the lounge are not made defendants to this action.
Section 201(b) (4) [relative to an establishment which becomes a public accommodation because it includes a covered establishment] makes it clear that the mere physical presence of a covered establishment within the premises of a non-covered establishment makes the non-covered establishment a public accommodation.
The first question to be answered is whether the refreshment counter is a "restaurant," a "lunch counter" or "other facility principally engaged in selling food for consumption on the premises." The terms "restaurant," "lunch counter," and "other facility principally engaged in selling food for consumption on the premises" are not terms of art. They are words in common usage, and they are employed in the statute in their ordinary meaning.
Webster's New International Dictionary does not define the term "lunch counter," but the phrase is defined in A Dictionary of Americanisms as "a counter or a restaurant at which people, usually seated on stools, are served meals or refreshments." A restaurant is defined in Webster's as "an establishment where refreshments or meals may be procured by the public." And the same authority defines a "snack bar" as "a public eating place where snacks are served usually at a counter." The sole distinction between a "snack bar" and a "lunch counter" lies in a minor difference in the type of food served. "Lunch" is a "light meal usually in the middle of the day," or "a light meal taken at any time of the day or night at a selected place," according to Webster's, while a "snack" is defined by the same dictionary as "food served or taken informally usually in small amounts and typically under other circumstances than as a regular meal."
So far as this case is concerned, it is hard to see any substantial distinction in the dictionary definitions of "snack bar" and "lunch counter." It is even harder to conceive that Congress intended to draw a distinction between these two types of refreshment counters. Both snack bars and lunch counters engage in selling refreshments as well as food. They both sell sandwiches, light meals, and beverages.
In essence, Fazzio's argument comes to this: The refreshment counter is not a lunch counter because it sells more beer than food. Beer is not food. When food and beer are sold together, but a greater dollar volume of beer is sold than food, the seller is not principally engaged in the sale of food.
Fazzio's itself doesn't call the facility a "bar" or a "tavern"; it refers to the facility as a "snack bar." In physical appearance, it looks like a lunch counter. Service is at a counter provided with stools. The counter is of the kind generally used in facilities called "lunch counters" rather than the kind customarily used in bars. The posted menu lists a variety of sandwiches and beverages; beer is only one of many items listed. The public would see nothing amiss in a sign calling it a lunch counter. The judge who said it could not be so characterized would be shutting his eyes to the normal meaning of the words used in the Act.
The statutory language leads clearly to this result. Congressional committee reports confirm it. What is said in Congressional committee reports and in debates should not change the meaning of clear statutory language.
Honorable Robert W. Kastenmeier who joined in the majority report of the House Judiciary Committee on H.R.
However, even if we conclude that the facility is not a lunch counter and isolate for decision the question whether it is a facility engaged principally in the sale of food for consumption on the premises, we would again reach the conclusion that this is a covered establishment. Lord Tenterden's Rule, or the rule of ejusdem generis, assists us in interpreting this phrase,
Taking a cue from language in Kyles v. Paul, E.D.Ark., 1967, 263 F.Supp. 412, Fazzio's argues that its bowling alley is a "single operation with the sales of food and drink being merely adjuncts to the principal business" of providing bowling facilities to the public.
But the language quoted from the Kyles case cannot be read alone. It is followed by the observation, "Section 201(b) (4) plainly contemplates at least two establishments, one of them covered by the Act, operating from the same general premises. See e. g. Pinkney v. Meloy, N.D.Fla., 241 F.Supp. 943. That situation does not exist here." This referred of course to the outdoor recreational areas involved in that case.
FLOOR SPACE RATIO
The statute contains no percentage test, and it is not necessary to show that the covered establishment which magnetizes the non-covered establishment in which it is physically located occupies a majority, or even a substantial part of the premises, or that its sales are the major or even a substantial part of the revenues of the establishment.
HOLDS ITSELF OUT AS SERVING PATRONS OF THE COVERED ESTABLISHMENT
Fazzio's does not question that the bowling alley holds itself out as serving patrons of the refreshment counter. Of course it is not the primary function of the bowling alley to serve the patrons
EFFECT ON INTERSTATE COMMERCE
It is conceded that the refreshment counter is located within the premises of the bowling alley. But restaurants and other food service facilities are covered establishments only if they affect commerce. Section 201(c) of the Act provides that an establishment affects commerce if:
It is not disputed that a substantial part of the food served at Fazzio's refreshment counter has moved in interstate commerce.
TRIAL BY JURY
Injunction is an equitable remedy and there is no right to a jury trial of this case as the defendants contend.
The plaintiff seeks an award of attorney's fees under the provisions of 42 U.S.C.A. § 2000a-3(b). Such an award is discretionary with the Court. Under all circumstances present in this case, it is my considered judgment that the Court should not grant attorney's fees.
For the reasons given, the Court concludes that Fazzio's is a public accommodation. Since the hearing on the prayer for a preliminary injunction and the hearing on the prayer for a permanent injunction were consolidated, by order of the Court, an injunction will be issued restraining and enjoining the defendants from withholding, denying or attempting to withhold or deny to the plaintiff and members of the class he represents the rights to which he is entitled under Section 201(a) of the Civil Rights Act of 1964. Counsel for the plaintiff will prepare a draft of a proposed injunction and submit it to the Court, after first mailing a copy to the defendants. The defendants will submit any comments on and objections to the text of the proposed injunction within three days after receiving it. Thereafter, the decree will be framed and entered by the Court.
Senator Magnuson in presenting Title II of the Act to the Senate stated:
See also BNA, The Civil Rights Act of 1964, page 83:
From 4/16/66 From 10/1/66 To 9/30/66 To 3/31/67 Total sales of food, beer, and non-alcoholic beverages $29,945 $30,614 Total sales of beer $13,982 $12,944 Total sales of food and nonalcoholic beverages $15,963 $17,670 Beer sales as a % of total sales 47% 43% Food and non-alcoholic beverage sales as a % of total sales 53% 57% Gross income from refreshment counter sales $14,775 Not disclosed by defendant's exhibits Gross income from beer sales $ 6,611 Not disclosed by defendant's exhibits Gross income from beer as a % Not disclosed by of total refreshment counter defendant's gross income 45% exhibits Gross income from food and non-alcoholic Not disclosed by beverage sales as a % defendant's of total refreshment counter exhibits sales 55% Total Gross Profit $88,791 Not disclosed by defendant's exhibits
See also BNA, Civil Rights Act of 1964, page 84: "During the legislative debates on this aspect of the Act, it seemed to be generally assumed that the second category would embrace such lunch-counter-operating establishments as bowling alleys, skating rinks, and amusement parks."
In Heart of Atlanta Motel, Inc. v. United States, 1964, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258, 269, the Supreme Court sustained the constitutionality of the act, saying, "It is said that the operation of the motel here is of a purely local character. But, assuming this to be true, `[i]f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.' United States v. Women's Sportswear Mfrs. Assn., 336 U.S. 460, 464 [69 S.Ct. 714, 716, 93 L. Ed. 805, 811] (1949). * * *"
See also the separate minority views of Honorable Richard H. Poff and Honorable William Cramer, House Judiciary Committee Report, cited in BNA, Civil Rights Act of 1964, page 229, criticizing the House Bill for furthering the process of government by injunction. There is no express statement in this minority report that the injunctive proceeding would be tried without a jury.