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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1104

1104     IOWA LAW REVIEW     [Vol. 49

   The Iowa case of Humburd v. Crawford132 should also be recalled. There the court found that an establishment's signs, adverstising, manner of conducting its business, and the fact that meals were served to whomever came at a uniform price were sufficient factors to render it a public eating house. Similarly, one of the factors leading the New York State Commission Against Discrimination to find a resort to be a public accommodation rather than a private club was its general advertising to the effect that it was "one of the few remaining Wayside Inns in America."133
   The provision of the proposed statute demanding that public use of a "distinctly private" facility be included within the act's proscription is geared to prevent discrimination in a common situation. Often a genuinely private establishment, such as a country club, will open its golf course or swimming pool to the public at large for a fee during slack periods of its members' use. In this situation the equities strongly support the act's application. The "distinctly private" nature of the facility justifying its exemption disappears to the extent that and during the period that it opens itself to the general public for a fee.
   The proposed act makes no distinction between those establishments catering to the public for a fee in order to make a profit, and those that cater to the public for a fee that are nonprofit.134 But because substantial equities support the freedom of donors to choose the objects of their bounty on whatever criteria they see fit, the act does not apply to those establishments that offer their services, facilities, or goods to the general public gratuitously. However, one departure from this rule is embodied in the suggested statute. If an establishment that caters to the public at large gratuitously receives any substantial public support, as by tax exemptions or other governmental subsidy, it is also bound by the acts proscriptions. This seems only fair since all the taxpayers are indirectly contributing to such an establishment's ability to dispense its largess to the public without cost; and it is only the gratuitous nature of these benefits conferred by that establishment on members of the general public that would otherwise permit it to discriminate on the basis of race, religion, or ethnic background.
   The provision prohibiting "discriminatory" advertising is calculated to avoid any efforts by an establishment within the act's coverage to circumvent its proscriptions by discouraging in advance the patronage of certain racial, religious, or ethnic groups. Such action might not otherwise be considered covered by the act because it does not in-
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132 128 Iowa 743, 105 N.W. 330 (1905).
133 KONVITZ & LESKES, op. cit. supra note 89, at 184.
134 See notes 103 and 106 supra.

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1104 IOWA LAW REVIEW [Vol. 49 The Iowa case of Humburd v. Crawford132 should also be recalled. There the court found that an establishment's signs, adverstising, manner of conducting its business, and the fact that meals were served to whomever came at a uniform price were sufficient factors to render it a public eating house. Similarly, one of the factors leading the New York State Commission Against Discrimination to find a resort to be a public accommodation rather than a private club was its general advertising to the effect that it was "one of the few remaining Wayside Inns in America."133 The provision of the proposed statute demanding that public use of a "distinctly private" facility be included within the act's proscription is geared to prevent discrimination in a common situation. Often a genuinely private establishment, such as a country club, will open its golf course or swimming pool to the public at large for a fee during slack periods of its members' use. In this situation the equities strongly support the act's application. The "distinctly private" nature of the facility justifying its exemption disappears to the extent that and during the period that it opens itself to the general public for a fee. The proposed act makes no distinction between those establishments catering to the public for a fee in order to make a profit, and those that cater to the public for a fee that are nonprofit.134 But because substantial equities support the freedom of donors to choose the objects of their bounty on whatever criteria they see fit, the act does not apply to those establishments that offer their services, facilities, or goods to the general public gratuitously. However, one departure from this rule is embodied in the suggested statute. If an establishment that caters to the public at large gratuitously receives any substantial public support, as by tax exemptions or other governmental subsidy, it is also bound by the acts proscriptions. This seems only fair since all the taxpayers are indirectly contributing to such an establishment's ability to dispense its largess to the public without cost; and it is only the gratuitous nature of these benefits conferred by that establishment on members of the general public that would otherwise permit it to discriminate on the basis of race, religion, or ethnic background. The provision prohibiting "discriminatory" advertising is calculated to avoid any efforts by an establishment within the act's coverage to circumvent its proscriptions by discouraging in advance the patronage of certain racial, religious, or ethnic groups. Such action might not otherwise be considered covered by the act because it does not in- ____________ 132 128 Iowa 743, 105 N.W. 330 (1905). 133 KONVITZ & LESKES, op. cit. supra note 89, at 184. 134 See notes 103 and 106 supra.