Linda Rousseve, on Behalf of Herself, Etc. v. Shape Spa for Health and Beauty, Inc.

BOYLE, District Judge:

Plaintiffs sue Shape Spa asserting violation of and jurisdiction under the Civil Rights Act of 1964.

Cross motions for summary judgment involving the issue of jurisdiction have been filed with a stipulation of facts. Both motions raise the question of whether or not the defendant health studios are "Public Accommodations" within the meaning of Title II of the Civil Rights Act of 1964.42 U.S.C. § 2000aet seq. which provides:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

It is evident from the language of the statute that Title II does not prohibit discrimination in all places, or even in all places of "Public Accommodation." Title II prohibits discriminationonlyin any place of public accommodationas defined in thissection.(Emphasis ours).42 U.S.C. § 2000a. The congressional intention to limit the scope of the application of Title II is clear from the definitive nature of42 U.S.C. § 2000a(b):

(b) Place of public accommodation. Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title [42 USCS §§ 2000a-2000a-6] if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (b) which holds itself out as serving patrons of such covered establishment.

The record supports the finding that the defendant health clubs do not fall within any of the classifications found in42 U.S.C. § 2000a(b)(1), (2) and (4).¹Nor are they motion picture houses, theaters, concert halls, sports arenas or stadia enumerated in42 U.S.C. § 2000a(b)(3). The only classification into which plaintiffs contend the defendants clubs fall is that of "other place of exhibition or entertainment."42 U.S.C. § 2000a(b)(3).²Page 70

Title II of the Civil Rights Act of 1964,42 U.S.C. § 2000aet seq., is carefully limited to enterprises having a direct and substantial relationship to the interstate flow of goods and people.³The Fifth Circuit has recognized that the Act was not designed to cover all establishments. Miller v. Amusement Enterprises,394 F.2d 342(5 Cir. 1968); United States v. DeRosier,473 F.2d 749(5 Cir. 1973). InDeRosier,the court went on to say: . . . this Court en banc concluded that Sections 2000a(b)(3) and (c)(3) must be read "with open minds attuned to the clear and strong purpose of the Act, namely, to secure for all citizens the full enjoyment of facilitiesdescribed in the Actwhich are open to the general public. That Title II of the Civil Rights Act is to be liberally construed and broadly read we find to be well established." Miller v. Amusement Enterprises, Inc., 5 Cir. 1968,394 F.2d 342,349. Thus we read the statute, particularly the term "place of entertainment", as did the Supreme Court in Daniel v. Paul, 1969,395 U.S. 298,307-308,89 S.Ct. 1697,1702,23 L.Ed.2d 318,326,accordingto its generally accepted meaningso as to give full effect to Congress' overriding purpose of eliminating the affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public. (Emphasis ours).

The generally accepted meaning of the Act's language — "place of exhibition or entertainment" — does not encompass the defendant clubs.

In enacting the public accommodations section of the 1964 Act, Congress did not intend to regulate all establishments that it had the power to regulate. Broad coverage of retail establishments was originally contemplated, H.R. 7152, but that coverage was deleted when the House Judiciary Committee reported the bill. H.R. No. 914 on H.R. 7152, 88th Congress, 1st Session, Part I at 2-3. Congress intended to limit coverage to "those business establishments which on the basis of current experience have proven to be the most important sources of discrimination and, therefore, the focal point of most discriminations." House Judiciary Committee Hearings on H.R. 7152, Part IV at 2555-56 (statement of Attorney General Kennedy).

The concept of generally accepted meaning should not be employed to override what has been judicially established as the intent of Congress, by expanding the scope of a congressionally-limited meaning. Immediately following the language inMillerregarding interpretation of Title II of the 1964 Civil Rights Act, the following language appears:

Though we give to the Act a liberal interpretation, we are aware that the Act was not designed to cover all establishments. "Congress * * * exclude[d] some establishments from the Act either for reasons of policy or because it believed its powers to regulate and protect interstate commerce did not extend so far." Heart of Atlanta Motel, Inc. v. United States,379 U.S. 241,273,85 S.Ct. 348,366,13 L.Ed.2d 258,277(1964).

The stipulation of the parties establishes that there are no amusement or entertainment facilities such as juke boxes or record players (see § 8); and no restaurant or "snack" facilities, shows, performances, or athletic competitions. An insight into the actual operation, object and purpose of defendant health clubs may be gleaned from the training program of Shape Spa's employees. We quote from the Shape Spa Training Program:⁴

We sell Health, Beauty, Youth, Physical Ability, Social Recognition. Those are the things our customers want. We supply these by giving our customers a mixture of attractive club facilities,Page 71concrete programs of exercise, recreation, and diet,in which we instruct, supervise, and counsel them.

B. What Does A Technician Do?

C. Service to Members

1. After a member has printed her name on the sign in sheet, stored her belongings and reported to the gymnasia area, she is to be conducted through her program.

2. Pull members chart, change programs where needed — for the benefit of the member (increase or even decrease if necessary).

3. Be sure program is marked with the correct repetitions for the day. Date the program each day member attends club.

4. Carry member's chart with you so you know exactly what she is doing.

5. Stress to the member the importance of following the program as outlined.

6. Be interested in the member and use hernamefrequently.

7.Encourage correct exercise form.

8. Encouragedietingand followingtheir dietprogram.

9.Weigh member each week on same dayandhopefullyat the same time. Award success sticker forweekly weight loss goalif it is achieved.

10. Be sure to call attention to theirimprovements.

11. Avoid negative comments to the member.

12. After member has completed program in gymnasia area — instruct member to change clothing (in dressing booths) and continue instruction in wet area phase of program.

13. After completion of member's entire program, refile program and encourage member to return for nexttreatment.

14. Be professional. (Emphasis ours).

The use and purpose of the gymnasium is evidenced by the following statement in the defendants' training manual:

The gymnasia area with exercise equipment and electrical equipment is designed to help the members of our clublose weight, gain weight, orre-proportion body dimensions as well as to providegeneral conditioning for the body.Each exercise offers a particular benefit to the member. (Emphasis ours).

Studio equipment such as:Item

1. Hips Away

2. Bicycle

3. Waist Cincher Unit a. Rack b. Bent Leg Board c. Straight Leg Board

4. Beauty Bell Unit, consisting a. Rack b. 3# Pair Beauty Bells c. 5# Pair Beauty Bells d. 8# Pair Beauty Bells e. 10# Pair Beauty Bells f. 12# Pair Beauty Bells

5. Incline Bench

6. Flat Bench

7. Beauty Bars

8. Swiss Facial Unit

9. Treadmills

10. Hip Leg Beautifier

11. Leg Kick Machine

12. Double Twistaway

13. Butterfly

14. Contour Mould Unit, consisting of a. Board b. Weight Jacket

15. Low Roller

16. High Roller

17. Chair Roller

18. Vibrator Belt

19. Swivelator

20. Health Step

21. Scale

22. Inhalator

23. Plate WeightsPage 72

is provided to accomplish weight loss or gain, apportionment of body dimensions and general conditioning of its users' bodies.

We recognize that there are some elements of fun, relaxation and entertainment derived from many phases of man's daily activities and could well be experienced by some individuals in some of the exercise regimen and programs offered by the defendant clubs. On the other hand, we doubt that the rigors of the exercise and other activities in which overweight and unshapely female patrons of the clubs must participate to achieve their desired goals and the ultimate benefits offered by the clubs' programs can be regarded as entertainment of a nature which would cause the clubs to be brought within the Act's coverage. Surely, one who executes the exercises and performs the activities required by the program and upon completion of the course has achieved the maximum benefits possible for that individual may derive great personal satisfaction and joy, and, looking back, describe the experience as fun. But those who do not accomplish as much likely would experience disappointment and frustration and condemn the whole affair as an ordeal.

The prime purpose of the clubs and its members is the very serious one of improving physical well-being and any resultant entertainment flowing from use of the clubs' facilities and execution of their programs would be nominal and on an individual, and not public, basis.

We are aware that in United States v. DeRosier,supra,the court held that defendant's Northwood Bar was a "place of entertainment" and therefore a "place of public accommodation" under the 1964 Civil Rights Act because of the presence of three coin operated devices which provided the defendants with 3% of the gross revenue of the bar. That court did not consider the three coin operated machines to be insignificant.⁵But we note that a bar, by its very nature, provides its patrons with such pleasant diversions as drinking various beverages, watching television, visiting with friends and playing cards and other games. Most bars, when taken in their entirety, provide amusement and diversion for their patrons. Also, by their own nature, the following establishments provide amusement and diversion when taken in their entirety and fit into the category of a "place of exhibition or entertainment":

1. An amusement park — Miller v. Amusement Enterprises, Inc.,supra.

2. A roller skating rink — Evans v. Seaman,452 F.2d 749(5 Cir. 1972).

3. Swimming and dancing complex — United States v. Johnson Lake, Inc.,312 F. Supp. 1376(S.D.Ala. 1970).

4. The educational, spiritual and recreational programs of the Y.M.C.A.⁶Smith v. YMCA of Montgomery,462 F.2d 634(5 Cir. 1972).

5. Swimming, boating, picnicking, sunbathing and dancing facilities and a miniature golf course — Daniel v. Paul,supra.

Defendant Shape Spas do not belong in such category.⁷Page 73

Accordingly, the defendants' motion for summary judgment should be, and the same is hereby, granted and the plaintiffs' motion for partial summary judgment is hereby denied.

March 5th, 1974.