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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1103

1964]     STATE CIVIL RIGHTS STATUTES     1103

   Past these indicia, bona fide private clubs are usually controlled by their members, while public accommodations seeking to masquerade as "distinctly private" facilities are generally controlled by an owner or his employees. It is therefore relevant to discover the extent to which the membership, as distinct from the owner or his employees, controls the various policies of the facility. Additionally significant would be the extent to which the establishment is sustained by or has as its purpose the associational interests of its members in one another, rather than the mere coincidence of their interests in the activity of the establishment involved. All these, and many other factors should be carefully scrutinized in any effort to classify an establishment as either "catering to ... the general public" or "distinctively private."
   Several cases from various states illustrate the use of the kinds of factors just discussed in determining whether any given establishment is public or private. Two of them involving allegedly private swimming clubs are of particular interest. The first was found to be a public accommodation by the New Jersey Division Against Discrimination because it solicited patronage from the public generally; the requirement of membership in the club was a sham because it was available to any white person who tendered the admission fee; the members' endorsements required for admission were issued primarily by the owner's employees rather than the members; and the endorsements were issued without any investigation.130 The second "private swimming club" was also found by the New York courts to cater to the public because it had avowedly operated as a public bathing park prior to its formation as a membership corporation; it had an adult "membership" of 7,500; it admitted 10,000 people annually as "guests" of members; managerial control was confined to six permanent members, regular members having no authority to influence the club's admissions or other policies; the facility had a city license "for the operation of a public bathing establishment"; the establishment had a "commercial beer license" rather than a "special club license" for bona fide private clubs; and with the apparent knowledge and consent of its officers the swimming club had been listed in the classified telephone directory under "Bathing Beaches--Public" rather than under "Clubs."131
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130 KONVITZ & LESKES, op. cit. supra note 89, at 183-84.
131 Castle Hill Beach Club, v. Arbury, 28 Misc. 35, 142 N.Y.S. 2d 432 (Sup. Ct. 1955), modified, 1 App. Div. 2d 943, 150 N.Y.S. 2d 367 (1956, aff'd, 2 N.Y.2d 596, 142 N.E.2d 186 (1956). See Norman v. City Island Beach Co., 126 Misc. 335, 213 N.Y. Supp. 379 (App. Div. 1926), denying an exemption to a swimming club with lockers for 1,500 with members using only 60 at a time, and the club generally solicited members from the public at large.

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1964] STATE CIVIL RIGHTS STATUTES 1103 Past these indicia, bona fide private clubs are usually controlled by their members, while public accommodations seeking to masquerade as "distinctly private" facilities are generally controlled by an owner or his employees. It is therefore relevant to discover the extent to which the membership, as distinct from the owner or his employees, controls the various policies of the facility. Additionally significant would be the extent to which the establishment is sustained by or has as its purpose the associational interests of its members in one another, rather than the mere coincidence of their interests in the activity of the establishment involved. All these, and many other factors should be carefully scrutinized in any effort to classify an establishment as either "catering to ... the general public" or "distinctively private." Several cases from various states illustrate the use of the kinds of factors just discussed in determining whether any given establishment is public or private. Two of them involving allegedly private swimming clubs are of particular interest. The first was found to be a public accommodation by the New Jersey Division Against Discrimination because it solicited patronage from the public generally; the requirement of membership in the club was a sham because it was available to any white person who tendered the admission fee; the members' endorsements required for admission were issued primarily by the owner's employees rather than the members; and the endorsements were issued without any investigation.130 The second "private swimming club" was also found by the New York courts to cater to the public because it had avowedly operated as a public bathing park prior to its formation as a membership corporation; it had an adult "membership" of 7,500; it admitted 10,000 people annually as "guests" of members; managerial control was confined to six permanent members, regular members having no authority to influence the club's admissions or other policies; the facility had a city license "for the operation of a public bathing establishment"; the establishment had a "commercial beer license" rather than a "special club license" for bona fide private clubs; and with the apparent knowledge and consent of its officers the swimming club had been listed in the classified telephone directory under "Bathing Beaches--Public" rather than under "Clubs."131 _________________________ 130 KONVITZ & LESKES, op. cit. supra note 89, at 183-84. 131 Castle Hill Beach Club, v. Arbury, 28 Misc. 35, 142 N.Y.S. 2d 432 (Sup. Ct. 1955), modified, 1 App. Div. 2d 943, 150 N.Y.S. 2d 367 (1956, aff'd, 2 N.Y.2d 596, 142 N.E.2d 186 (1956). See Norman v. City Island Beach Co., 126 Misc. 335, 213 N.Y. Supp. 379 (App. Div. 1926), denying an exemption to a swimming club with lockers for 1,500 with members using only 60 at a time, and the club generally solicited members from the public at large.