Petition — Golden v. Biscayne Bay Yacht Club
Supreme Court brief1976
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in the
JUL 12
Supreme Court
of the
United States
MISC. NO.
October Term, 1976
HAROLD S. GOLDEN and DAVID FINCHER,
Petitioners,
8.
BISCAYNE BAY YACHT CLUB; MAURICE A. FERRE,
Mayor, City of Miami, Florida; THEODORE GIB-
SON, MANOLO REBOSO, ROSE GORDON and
J. L. PLUMMER, City Commissioners of the City of
Miami, Florida,
Responden's.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
WARREN S. SCHWARTZ
1140 N. E. 163rd Street
North Miami Beach, Florida
33162
MELVIN L. WULF
American Civil Liberties Union
Foundation
22 East 40th Street
New York, New York 10016
BRUCE S. ROGOW
American Civil Liberties Union
Foundation of Florida
Nova University Center for the
Study of Law
3301 College Avenue
Fort Lauderdale, Florida 33314
MAURICE ROSEN
16666 N. E. 19th Avenue
North Miami Beach, Florida 33162
Counsel for Petitioners
MIAMI REVIEW — 371-4853 — 377-3721
K
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INI EX
Page
OPINION BELOW WW — * g 2
JURISDICTION __ 8 a 2
QUESTIONS PRESENTED FOR REVIEW]¾ZQ 2
CONSTITUTIONAL AND STATUTORY PROVI-
..... 3
STATEMENT OF THE CASE ꝶ gt 4
REASONS FOR GRANTING THE WRIT... 8
r —— 15
INDEX TO APPENDIX
Golden v. Biscayne Bay Yacht Club,
530 F.2d 16 (en bane, 5th Cir., April 15, 1976) App. 1
Golden v. Biscayne Bay Yacht Club,
521 F.2d 344 (5th Cir. 19755 5 App. 41
Golden v. Biscayne Bay Yacht Club,
370 F.Supp. 1038 (S. D. Fla. 1973) — App. 65
ii
TABLE OF CITATIONS
Cases Page
Burton v. Wilmington Parking Authority,
r 10, 11
Edwards v. Habib,
397 F.2d 687 (D.C. Cir. 1968) — 14
Gilmore v. City of Montgomery,
417 U.S. 556 (1977 Passim
Golden v. Biscayne Bay Yacht Club,
e re 2,4
Golden v. Biscayne Bay Yacht Club,
521 F.2d 344 (5th Cir. 1975) Passim
Golden v. Biscayne Bay Yacht Club,
530 F.2d 16 (5th Cir. 1976) Passim
Greco v. Orange Memorial Hospital Corp.,
513 F.2d 873 (5th Cir. 1975) — 14.
Jackson v. Metropolitan Edison Co., %
419 U.S. 345 (1974) : 13
Jackson v. Statler Foundation,
496 F. 2d 623 (6th Cir. 1974) 7777 14
Moose Lodge No. 107 v. Irvis,
,, Passim
Perma Life Mufflers v. International Parts Corp.,
ee 12
iii
TABLE OF CITATIONS (cont.)
Cases Page
Powe v. Miles,
407 F.2d 738 (24 Cir. 1968) ———___________ 14
Runyon v. McCrary,
___. U.S, —___, 44 L. W. 5034 (June 25, 1976) 10
Williams v. Lee,
r 11
CONSTITUTIONAL AMENDMENTS
, 3
STATUTES
, 2
e cienenissebncliasinnaidiineialabite 3, 10
... 3
.. —— 3
OTHER AUTHORITIES
State Action and the Burger Court,
60 Va.L.Rev. 849 (1974) _ 3 14
State Action: Theories for Applying Constitutional
Restrictions to Private Activity,
74 Colum. L. Rev. 656 (197777 N 14
in the
Supreme Court
of the
Bnited States
MISC. NO.
October Term, 1976
HAROLD S. GOLDEN and DAVID FINCHER,
Petitioners,
v8.
BISCAYNE BAY YACHT CLUB; MAURICE A. FERRE,
Mayor, City of Miami, Florida; THEODORE GIB-
SON, MANOLO REBOSO, ROSE GORDON and
J. L. PLUMMER, City Commissioners of the City of
Miami, Florida,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
2
The Petitioners, by undersigned counsel, respectfully
request that a Writ of Certiorari issue to review the judg-
ment and opinion of the United States Court of Appeals for
the Fifth Circuit entered on April 15, 1976.
OPINION BELOW
The opinion of the Court of Appeals, en bane, is re-
ported at 530 F.2d 16. The original panel decision, which
held in favor of the Petitioners, is reported at 521 F.2d
344. The District Court decision, which also held in favor
of the Petitioners, is reported at 370 F.Supp. 1038. Copies
of all three opinions are included in the Appendix to
this Petition.
JURISDICTION
The judgment of the Court of Appeals was entered on
April 15, 1976. This Petition was timely filed. The juris-
diction of this Court is based upon Title 28 U.S.C. §1254
(1).
QUESTIONS PRESENTED FOR REVIEW
I.
HAS THE CITY OF MIAMI, FLORIDA, BY
VIRTUE OF THE SPECIAL CIRCUM-
STANCES INVOLVED IN ITS LEASING OF
PUBLIC BAY BOTTOM LAND TO A PRI-
VATE YACHT CLUB WHICH PRACTICES
RACIAL AND RELIGIOUS DISCRIMINA-
TION, SANCTIONED, FOSTERED, ENCOUR-
AGED OR IDENTIFIED ITSELF WITH THE
3
DISCRIMINATORY POLICIES OF THE CLUB
IN SUCH A MANNER AS TO CONSTITUTE
STATE ACTION WITHIN THE MEANING
OF THE FOURTEENTH AMENDMENT?
II.
DOES THE DEGREE OF STATE ACTION
NECESSARY TO IMPOSE FOURTEENTH
AMENDMENT RESTRAINTS UPON “PRI-
VATE” RACIAL AND RELIGIOUS DISCRIM-
INATION DIFFER FROM THAT WHICH IS
NECESSARY TO IMPOSE FOURTEENTH
AMENDMENT RESTRAINTS UPON OTHER
TYPES OF “PRIVATE” UNCONSTITUTION-
AL CONDUCT?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Amendment XIV
. nor shall any state deprive any person of
life, liberty or property without due process of
law...
Title 42 U.S.C. §1983
Civil action for deprivation of rights
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory, subjects or causes to be sub-
4
jected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immuni-
ties secured by the Constitution and laws shall
be liable co the party injured in an action at law,
suit in equity, or other proper proceeding for
redress.
STATEMENT OF THE CASE
Harold S. Golden and David Fincher sought member-
ship in the Biscayne Bay Yacht Club in Miami, Florida.
The Yacht Club never had a black member, except for an
honorary membership bestowed upon the Commodore of
the Jamaica Yacht Club. The Club never had a Jewish
member. Golden is Jewisn. Fincher is black. Each at-
tempted to apply for membership in the Club, but were
refused. Thereafter, they brought suit pursuant to Title 42
U.S.C. 881981, 1983 and 2000(a), challenging the admis-
sions policies of the Club.
The Biscayne Bay Yacht Club’s docks are on bay
bottom land leased from the City of Miami at $1.00 per
year. The District Court found that the land is “essential
to the Club’s functioning as a Yacht Club.” Golden v.
Biscayne Bay Yacht Club, 370 F.Supp. 1038, 1040. It also
determined that permission to construct the docks on the
land was to “help relieve the acute shortage of public dock
facilities in the City of Miami.” Jd. at 1040 (emphasis in
original). Furthermore, the lease incorporated City racial
‘In its present posture this case presents only the §1983 issue.
After prevailing in the District Court on that issue, the Petitioners took
no cross appeal from the failure of the District Court to find or assert
jurisdiction under any other Civil Rights Statutes. See, Colden v.
Biscayne Bay Yacht Club, 530 F.2d 16, 17, n. 1.
5
and religious nondiscrimination ordinances, Id. at 1040,
1041, which the city failed to enforce although aware of
the violations.
The District Court concluded that the Yacht Club did
engage in discriminatory admission policies. Jd. at 1044.
As a result, only white, Christian boaters had use of the
Club’s pier facilities which rested on public land. Holding
that the City’s involvement with the Club created a “sym-
biotic relationship,” the District Court found there to be
sufficient state action to impose Fourteenth Amendment
Constitutional restraints and enjoined the Yacht Club
from “barring . . . membership to applicants solely on ac-
count of their race or religious affiliations.” Jd. at 1044.
The Yacht Club appealed and the Fifth Circuit af-
firmed the decision of the District Court. Golden v. Bis-
cayne Bay Yacht Club, 521 F.2d 344 (5th Cir. 1975).
The Club successfully petitioned for rehearing en banc
and the en banc Court, in a nine to five decision, reversed
the original panel ruling, holding that the reiationship
between the City and the Yacht Club did not constitute
state action. The majority opinion stated:
On the law as above discussed, and on the facts
as above recited, we have the same opinion of this
case that the Supreme Court had in Moose Lodge
[No. 107 v. Irvis, 407 U.S. 163 (1972)], supra;
the facts and circumstances fall far short of the
symbiotic relationship found in Burton [v. Wil-
mington Parking Authority, 365 U.S. 715
(1961) J, supra. As a matter of law and fact, they
fall short of establishing that the City of Miami
6
has so far insinuated itself into a position of
interdependence with the club that it must be rec-
ognized as a joint participant in the internal
membership policies of the club. The City of
Miami has not significantly involved itself in
those membership policies. The lease does not pro-
vide a sufficiently close nexus between the city
and the club so that the action of the club may be
fairly treated as that of the city.
Golden v. Biscayne Bay Yacht Club, 530 F.2d 16,
22.
The en bane dissent cifered a different view:
We understand the majority opinion to hold that
the fact that a private club leases some of the
property it uses from a governmental entity is
not enough in itself to imbue the private club’s
discriminatory activities with “state action.”
Whatever the validity of that holding as a legal
proposition, we are convinced that the result
reached by the majority is incorrect, because
several unique factors relating to this particular
lease were not properly taken into account in
the majority opinion.
The panel opinion, 521 F.2d 344, as does this
dissent, discussed these special considerations
which mandate the conclusion that “much more
is involved than simple ownership and lease” 521
F.2d at 352. This was a lease of waterbottom
land abutting very valuable property—we can
take judicial notice that this lease was worth
considerably more than $1.00, and thus that the
7
financial accommodation here had the same effect
as would a fair market value lease combined with
a large subsidy given from the city to the club.
The lease arrangemen. between the club and the
city was grounded, pursuant to a state require-
ment, on a condition that the club would be per-
forming a “public purpose,” viz, providing pri-
vate dock space which would to some extent re-
lieve the overcrowded public docks. The city at
one point had recognized, through ordinance, that
as trustee of a limited and valuable public re-
source, it had an obligation to insure that any
private clubs given exclusive access to parts of
that resource would not practice invidious dis-
crimination. The club failed to comply with that
ordinance, although the prohibition of invidious
discrimination had been made part of the lease,
and the city refused to enforce the ordinance,
despite clear notice of the violation.
This Court need not decide whether any one of
these considerations, standing alone, would be suf-
ficient to support a finding of state action. Rather,
we need only pass on whether the cumulation of
these considerations develops an image of “sig-
nificant state involvement.” For us, all the facts
and circumstances lead to only one conclusion—
the cumulation of the various aspects of the
city-club relationship colors the club’s policies of
racial and religious discrimination with state
action.
Golden v. Biscayne Bay Yacht Club, 530 F.2d
at 33.
8
The en banc majority saw involvement in member-
ship policies of the Club as the sine qua non for state ac-
tion. The dissent foresaw the danger of that approach:
Today the Court opens the door to subterfuge
because well within the bounds of this opinion
a governmental entity may accomplish indirectly
what it could never do directly by leasing public
property to a private segregated organization
and then disavowing any direct participation in
the discriminatory membership policies.
Id. 530 F.2d at 32.
This Petition for Writ of Certiorari seeks review of
the en bane majority’s conclusion as to state action and
poses the question of whether, in the context of racial
and religious discrimination state action can be avoided
by a disavowal of direct participation in the discrimina-
tion perpetuated by the “private” entity.
REASONS FOR GRANTING THE WRIT
I,
THE DECISION BELOW PRESENTS AN IM-
PORTANT ISSUE OF CONSTITUTIONAL
LAW WHICH AFFECTS THE RIGHTS OF
ALL CITIZENS AND THE OBLIGATIONS
OF GOVERNMENTAL ENTITIES TO PRO-
TECT THOSE RIGHTS.
9
The importance of the issues presented in this case
was made apparent in an opening paragraph of the en
bane decision :
So far as can be determined from a diligent
search of the precedents, this is the first time
in the history of Fourteenth Amendment juris-
prudence that a rederal district court has under-
taken the supervision of the membership poli-
cies in a genuinely private club.
Golden v. Biscayne Bay Yacht Club, 530 F.2d
at 17.
A decision co supervise or not to supervise affects
the constitutional rights of all citizens. On one hand, “The
associational rights which our system honors permit all
white, all black, all brown, and all yellow clubs to be
formed. They also permit all Catholic, all Jewish, or all
agnostic clubs to be established.” Moose Lodge No. 107 v.
Irvis, 407 U.S. 163, 179-180 (1972), Douglas, J., dissent-
ing. However, those associational rights must be exercised
independent of significant state involvement and support.
Gilmore v. City of Montgomery, 417 U.S. 556, 575 (1974).
Such involvement infringes upon the constitutional and
statutory rights of those discriminated against to be pro-
tected from denials of equal protection of the law.
Thus, any state action case involving racial and re-
ligious discrimination poses important legal problems af-
fecting the general public. The fact that decisions in these
cases instruct governmental bodies of their obligations to
protect Fourteenth Amendment rights when dealing with
private discriminatory organizations, and the limits of
10
their involvement with those organizations, adds to the
public importance of such cases.?
The opinion below is of special concern. Unlike the
state action cases previously presented, Burton, Moose
Lodge, and Gilmore, it presents a question of religious as
well as racial discrimination—a dual bias which offends
the principles upon which our nation was built. The crea-
tion of the Rhode Island Colony in 1636 by Roger Williams
was the cornerstone guaranteeing freedom from religious
discrimination. The Civil War and its constitutional and
statutory afteriuath laid the foundation for terminating
racial discrimination. At issue here are vestigial practices
which may sharply conflict with those notions of liberty.’
Judge Coleman, in his dissent to the original panel decision,
raised the spectre of an end to private clubs because of their ties to
property held in trust by the government:
I now take a look at other practical effects of this decision. All
around the Gulf of Mexico, the waterbottoms are publicly
owned. They are trust property and cannot be sold. They can
only be leased for a term of years. Under this decision we
say farewell to private yacht clubs, private hunting clubs,
or any other private club operating on such property and
leased exclusively to a named private lessee.
Golden v. Biscayne Bay Yacht Club, 521 F.2d at 356.
Implicit in his suggestion is the fact that those clubs practice
racial and religious discrimination. If they did not, there would have
been no need to say farewell to them under the original panel deci-
sion. By reversing that decision, the en banc Court has now bid wel-
come to discrimination by private clubs benefiting from state aid.
Governmental bodies, with obligations to all of their constituents,
should welcome a decision by this Court further clarifying their duties
when dealing with such clubs.
The religious bias aspect of this case may have special magnitude
as a result of the decision in Runyon v. McCrary, — U.S. __, 44
L.W. 5034 (June 25, 1976). Some private discrimination can now be
enjoined under 42 U.S.C. 81981 without showing state action. But
only §1983 and its requirement of state action will be available to
remedy religious discrimination. Thus, we may have the anomaly of
an organization’s racial bias being banned, but their religious bias
tolerated by law.
11
The division in the en banc Court of Appeals is of
significance because it underscores how firmly the ma-
jority and the dissent believe their respective assessments
are correct. Assessments which are wholly based upon this
Court’s instruction that:
Only by sifting facts and weighing circumstances
[on a case-by-case basis] can the non-obvious in-
volvement of the State in private conduct be at-
tributed its true significance.
Burton v. Wilmington Parking Authority, 365
US. at 722.
Using the guidelines set by this Court, the District
Court Judge and five Court of Appeals Judges have found
state action. Nine Court of Appeals Judges have found
no state action. There is no factual dispute presented. The
issue is merely the application of the governing law of
Burton, Moose Lodge and Gilmore to undisputed facts.
Since this Court is the ultimate arbiter of Consti-
tutional principles, and since three lower court decisions
have struggled to apply the Court’s guidelines in a case
which affects the general population and the duties of
governmental entities, it is vital that the question of state
action be resolved by this Court.*
The Petitioners, of course, contend that the decision below was
erroneous. Chief Judge Brown’s dissent carefully details the confluence
of facts which support the state action position. We do not belabor the
argument that the en banc majority was wrong because we recognize
that position, standing alone, is not enough to exercise the certiorari
power of this Court. But we believe that the importance of the ques-
tion plus the doubtful determination of the Court below adds weight
to this Petition. See Williams v. Lee, 358 U.S. 217, 218 (1959), in
12
II.
THE DECISION BELOW CONFLICTS WITH
THIS COURT’S DECISION IN GILMORE V.
CITY OF MONTGOMERY, 417 U.S. 556 (1974).
In Gilmore v. City of Montgomery, 417 U.S. 556
(1974), the Court prohibited the exclusive use of public
property by organizations which practiced racial] discrimi-
nation. The Court noted that “if the city or other govern-
mental entity rations otherwise freely accessible recrea-
tional facilities, the case for state action will naturally be
stronger.” Id. 417 U.S. at 574.
The bay bottom is a freely accessible facility. Boats
manned by sailors of all colors and religions “anchor out”
on it. But not on the bay bottom controlled by the Yacht
Club. There only white, Christian boaters tie up. The City
of Miami was aware of the discrimination. The City of-
ficials had a duty to enforce their own ordinances pro-
hibiting it; just as in Gilmore, the “city’s officials were
aware of this [desegregation] order and were responsible
for seeing that no action on their part would significantly
impede the progress [of desegregation]. Jd. 417 U.S. at
568.
which the Court granted certiorari because of the ‘important ques-
tion” and a “doubtful determination” by the lower court.
And, insofar as the decision below opens the door to subterfuge
by permitting a governmental body to deny participation in the dis-
criminatory practices, and thus threatens the effectiveness of §1983
as a remedy for enforcing the Fourteenth Amendment, we invoke the
analogous language of Perma Life Mufflers v. International Parts Corp.,
392 U.S. 134, 136 (1968). There certiorari was granted “because the
rulings by the Court of Appeals seemed to threaten the effectiveness
of the private action as a vital means for enforcing the anti-trust
policy of the United States.”
13
The action (and inaction) of the municipal officials
in Gilmore and Golden are similar. If state action was
present in Gilmore, it is present in Golden. The en banc’s
contrary conclusion therefore conflicts with Gilmore.
III.
THE DECISION BELOW PRESENTS IMPOR-
TANT CONSTITUTIONAL ISSUES WHICH
HAVE NOT BEEN, BUT SHOULD BE, DE-
CIDED BY THIS COURT.
“(T]he question whether particular conduct is pri-
vate on the one hand, or state action on the other, fre-
quently admits of no easy answer. Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 349-350 (1974). Thus, the
“sifting” approach has evolved as the method for seeking
the solution to the question. Gilmore v. City of Montgom-
ery, 417 U.S. at 574.
In the process of resolving state action issues, this
Court has not stated that claims of racial discrimination
require a finer sifting. But Courts of Appeal have dis-
tinguished “between the degree of state action necessary
to impose constitutional restraints in cases concerning
racial discrimination and the high degree of state involve-
ment which is necessary for private conduct to be sub-
jected to Fourteenth Amendment sanctions when other
types of constitutional violations have occurred. The
Court’s willingness to find state action more readily in
racial discrimination cases is not hard to explain. After
all, such discrimination was the very condition that pre-
cipitated the enactment of the Fourteenth Amendment.”
Golden v. Biscayne Bay Yacht Club, 521 F.2d 344, 350-351
14
(footnotes omitted). Several circuits have noted the dis-
tinction. See, Greco v. Orange Memoriai Hospital Corp.
513 F.2d 873, 879-880 (5th Cir. 1975) ; Jackson v. Statler
Foundation, 496 F.2d 623 (2d Cir. 1974); Powe v. Miles,
407 F.2d 73, 82 (2d Cir. 1968); Edwards v. Habib, 397
F.2d 687, 693 (D.C. Cir. 1968). See also, Note, State Ac-
tion: Theories for Applying Constitutional Restrictions to
Private Activity, 74 Colum. L.Rev. 656, 657 (1974) ; Com-
ment, State Action and the Burger Court, 60 Va.L.Rev.
849 (1974).
Thus, two novel questions are presented in the instant
case: (1) does the degree of state action necessary to
impose Fourteenth Amendment restraints upon private
racial discrimination differ from that which is necessary
to impose those restraints upon other types of private un-
constitutional conduct; and (2) if so, does the higher stand-
ard also apply to religious discrimination?
The answers to these important queries would provide
additional guidance to the Courts of Appeal in state action
claims. The issue of state action is not a rara avis. Certio-
rari should be granted to provide that guidance.
15
CONCLUSION
For the foregoing reasons, Petitioners request that
the Court grant this Petition for Writ of Certiorari.
July, 1976
Respectfully submitted,
BRUCE S. ROGOW
American Civil Liberties Union
Foundation of Florida
Nova University Center for the
Study of Law
3301 College Avenue
Fort Lauderdale, Florida 33314
MAURICE ROSEN
16666 N.E. 19th Avenue
North Miami Beach, Florida 33162
WARREN S. SCHWARTZ
1140 N.E. 163rd Street
North Miami Beach, Florida 33162
MELVIN L. WULF
American Civil Liberties
Union Foundation
22 East 40th Street
New York, New York 10016
Counsel for Petitioners
APPENDIX
APPENDIX
Harold S. GOLDEN and David Fincher,
Plaintiffs-Appellees,
V.
BISCAYNE BAY YACHT CLUB et al.,
Defendants-Appellants.
No. 74-1349.
United States Court of Appeals,
Fifth Circuit.
April 15, 1976.
Before BROWN, Chief Judge, WISDOM, GEWIN,
BELL,“ THORNBERRY, COLEMAN, GOLDBERG,
AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY,
GEE and TJOFLAT, Circuit Judges.**
COLEMAN, Circuit Judge.
A city leased to a private yacht club the bay bottom
land underlying club-constructed and club-maintained dock
facilities connected to the club lands on shore. The club
thus had exclusive use and control of the docks, a situation
which had existed long before the lease was executed. The
*Bell, Circuit Judge, heard oral argument and participated in
conference en banc. He concurred in this opinion (the comments on the
dissenting opinion excepted) on January 29, 1976, prior to his resigna-
tion on March 1, 1976.
**Dyer, Circuit Judge, did not participate in the consideration or
disposition of this appeal.
App. 2
District Court held that the existence of the lease, and that
alone, amounted to significant state involvement with the
membership policies of the club, 42 U.S.C., § 1988, Golden
v. Biscayne Bay Yacht Club, 370 F.Supp. 1038 (S.D.Fla.,
1973). The lease and the use of the docks were left undis-
turbed. Instead, it was ordered and adjudged:
“1. That the policy, practice and custom of defendant
Biscayne Bay Yacht Club in denying member-
ship to the members of the Jewish religion and
Black race is hereby declared violative of the
Fourteenth Amendment to the United States
Constitution.
“2. Defendant Biscayne Bay Yacht Club is hereby
ordered to cease the barring of membership to
applicants solely on account of their race and
religious affiliations. 370 F.Supp., at 1044.
“3. Jurisdiction is retained for the enforcement of
the decree.”
The judgment of the District Court was affirmed by
a panel of this Court, one Judge dissenting, Golden v.
Biscayne Bay Yacht Club, 5 Cir., 1975, 521 F.2d 344.
So far as can be determined from a diligent search of
the precedents, this is the first time in the history of Four-
teenth Amendment jurisprudence that a federal district
The Panel majority held, 521 F.2d at 348, that “Here is in-
volved a claim of racial and religious discrimination which seems
clearly to fall within the ‘zone of interest’ of the statutory language of
42 U.S.C.A., § 1983”. There was no cross appeal from the failure of
the District Court to find or assert jurisdiction under any other Civil
Rights statutes. The District Court decided only the § 1983 issue. We
do the same.
App. 3
court has undertaken the supervision of membership
policies in a genuinely private club. A majority of the
Judges of this Court in active service, one Judge not par-
ticipating, granted rehearing en banc.
Upon a thorough sifting of the facts and circumstances
of this case, we are of the opinion that the bay bottom lease
did not supply the requisite Fourteenth Amendment sig-
nificant state involvement in the membership policies of
the private club. Accordingly, we reverse the judgment of
the District Court and remand the case with directions to
dismiss the complaint.
Prologue
There are undisputed considerations which, at the
outset, ought to be taken into account.
The lessor was the City of Miami, organized in 1896.
The lessee was the Biscayne Bay Yacht Club, organized in
1887.
The case does not come here as a class action.
The club was genuinely private. The District Court
so found, and additionally held that “it certainly was not
formed as a subterfuge to evade the civil rights laws”, 370
F.Supp., at 1041. It performed no public function; it did
nothing that had ever been a public function. It neither
receives nor spends funds allocated from any public source.
The city had no part, and took not part, in the operations
or internal policies of the club. As to membership policies,
the District Court found that there was no evidence that
the city had been aware of any discrimination practiced
App. 4
by the club which would require termination of the lease,
370 F.Supp., at 1044.
The Panel majority opinion held that “the City pro-
vided substantial financial aid to the Club by making the
bay bottom land available for the token rental of $1.00 per
year’, 521 F.2d 352. If the District Court considered this
point it failed to mention it and made no finding that the
city contributed in any way, substantial or otherwise, to
the financial support of the club.
To be more specific, the District Court noted:
“Except for the existence of the lease, the City
of Miami has never participated in or been in-
volved in the operation of the Club.”
370 F.Supp., at 1040.
A fortiori, the issue on this appeal is whether the
lease, the sole nexus between city and club, supplied the
significant state involvement required to activate 42 U.S. C.,
§ 1983.”
The Law
This is not the kind of case in which we are left to
flounder blindly in search of the applicable law. On several
26
§ 1983. Civil action for deprivation of rights
“Every person who, under color of any statute, ordinance, regula-
tion, custom, or usage, of any State or Territory, subjects, or causes to
be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or othe
ceeding for redress.” query r proper pro-
App. 5
occasions in the recent past the Supreme Court, as more
specifically discussed hereinafter, has carefully surveyed
the field and articulated principles governing significant
state involvement in private activities.
[1,2] The purpose of the Amendment and of the
statute, 42 U.S.C. § 1983, is to preserve and enforce, as
against state action, those rights, privileges, and im-
munities “secured by the Constitution and laws”. In the
absence of impermissible state involvement, it would hardly
be argued that membership in a private club, at the option
of the applicant, is a right or privilege enforceable in the
federal courts or anywhere else. Unless and until state ac-
tion, or action taken under color of state law, significantly
enters the lists on the side of impermissibly discriminatory
results, the internal membership policies of a genuinely
private club furnish no grist for the federal judicial mill.
See, e.g., The Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct.
18, 27 L.Ed. 835; Shelly v. Kraemer, 1948, 334 U.S. 1, 68
S.Ct. 836, 92 L.Ed. 1161; Cooper v. Aaron, 1958, 358 U.S.
1, 78 S.Ct. 1401, 3 L.Ed.2d 5; Evans v. Abney, 1970, 396
U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d. 634; Moose Lodge No.
107 v. Irvis, 1972, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d
627.
We begin our analysis with a thoroughgoing recogni-
tion of the teachings of a pioneer case in the field now
specifically under consideration, Burton v. Wilmington
Parking Authority, 1961, 365 U.S. 715, 81 S.Ct. 856, 6
L.Ed.2d 45.
Burton was a racial discrimination case. The object of
the complaint was a restaurant, leased from a state agency,
housed in a building owned and operated by that agency.
App. 6
The lease was needed to produce revenue to finance the
construction of the building. To a certain extent the res-
taurant enjoyed a portion of the tax exempt status of its
state owned landlord. The state agency furnished heat and
repairs; it received rent in the amount of $28,700 per
annum.
The state court held that the restaurant operated in
“a purely private capacity”.
The Supreme Court reversed, noting that the land and
building were publicly owned, that the building was dedi-
cated to public uses, the leased areas were not surplus state
property, they constituted a physical and financial inte-
gral, and they were an indispensable part of the State’s
plan to operate the project as a self-sustaining unit. The
operation conferred mutual benefits upon lessor and lessee.
Of no small moment was the fact that “profits earned by
discrimination not only contribute to, but also are indis-
pensable elements in, the financial success of a governmen-
tal agency”.
The conclusion was that:
“The State has so far insinuated itself into a
position for interdependence with [the restau-
rant] that it must be recognized as a joint partici-
pant in the challenged activity, which, on that
account, cannot be considered to have been so
‘purely private’ as to fall without the scope of the
Fourteenth Amendment.”
365 U.S., at 725, 81 8. Ct., at 862, 6 L.Ed.2d, at 52.
App. 7
The standard first announced in Burton, “that the
State had so far insinuated itself into a position of inter-
dependence with the restaurant that it was a joint partici-
pant in the enterprise,” was reiterated in Jackson v. Metro-
politan Edison Company, 1974, 419 U.S. 345, 357, 95 S.Ct.
449, 457, 42 L.Ed.2d 477, 487. Jackson was not a racial
discrimination case but the Court noted:
“Petitioner advances a series of contentions
which, in her view, lead to the conclusion that
this case should fall on the Burton side of the line
drawn in the Civil Rights Cases, supra, rather
than on the Moose Lodge side of that line. We
find none of them persuasive.”
419 U.S., at 351, 95 S.Ct., at 454, 42 L.Ed.2d, at
484.
Burton and Moose Lodge were racial discrimination
cases. The Supreme Court accepted them as lines of de-
marcation in Jackson’s case, although it did not involve
racial discrimination. The standard, state insinuation into
a position of interdependence so as to become a joint par-
ticipant in the challenged private activity, has been used
by the Supreme Court in both racial and non-racial cases.
The basic principle remains the same in either type case:
the facts either establish or do not establish significant
state involvement in the private activity.
In a § 1983 case involving alleged racial discrimination
by a nrivate club, the charge we have before us here, the
Supreme Court said:
App. 8
Where the impetus for the discrimination is
private, the State must have ‘significantly in-
volved itself with invidious diseriminations'.“
Moose Lodge, supra, 407 U.S., at 173, 92 S. Ct., at
1971, 32 L.Ed.2d, at 637.
The Court extensively discussed Burton, supra, with
obvious approval, and found “nothing approaching the
symbiotic relationship between lessor and lessee that was
present in Burton“, at 175, 92 S.Ct., at 1972, 32 L.Ed.2d
at 638.
The Court further informed us that the issue of sig-
nificant state involvement in private activities may be re-
solved only “by sifting facts and weighing circumstances”,
at p. 172, 92 S.Ct., at 1971, 32 L.Ed.2d, at 637. Burton, of
course, told us in 1962 that the Amendment’s embrace “can
be determined only in the framework of the peculiar facts
or circumstances present”, that is, on a case by case basis.
In any event, the Supreme Court told us in Jackson,
supra, 419 U.S., at 351, 95 S.Ct., at 453, 42 L.Ed.2d, at
484, citing Moose Lodge, 407 U.S., at 176, 92 S.Ct., at 1973,
32 L.Ed.2d at 639:
“[ T]he inquiry must be whether there is a suf-
ficiently close nexus between the State and the
challenged action of the regulated entity so that
the action of the latter may be fairly treated as
that of the State itself.” (Emphasis added).
In this connection, we recall Greco v. Orange Memorial
Hospital, 5 Cir., 1975, 513 F.2d 873, which involved a tax
exempt hospital mandatorily open to the general public,
App. 9
presumably burdened with all the nondiscriminatory duties
owed all persons within the public domain. Racial discrim-
ination was not at issue, but significant state involvement
in the operation was. The county owned the hospital and the
land on which it stood, costing $3,682,000 in public funds.
It was leased from the county under what amounted to a
perpetual lease for $1.00. In at least eight respects the
county retained control over the hospital. However, the
county participated neither directly nor indirectly in the
formulation of the disputed hospital policy (denial of elec-
tive abortions). 513 F.2d at 881.
In the light of those facts, this Court concluded:
“In summary, we find that Orange County is
not sufficiently connected with the Orange Mem-
orial Hospital Corporation’s activities to imbue
those actions with the attributes of the state.”
513 F.2d, at 882.
With the Chief Justice and Mr. Justice White dissent-
ing because of conflicts within the Circuits, the Supreme
Court denied certiorari, Greco v. Orange Memorial Hospital
(1975, 44 U.S.L.W. 3328) — U.S. , 96 S.Ct. 433,
46 L.Ed.2d 376.
Facts
The law is plain.
We now proceed to the sifting of the facts and circum-
stances. The basic facts are not in dispute—only the proper
legal conclusion to be drawn from those facts is at issue.
The clearly erroneous rule does not come into play.
App. 10
As already noted, the Biscayne Bay Yacht Club is a
genuinely private club. So far as the record shows, it has
never had any black or Jewish members. It was not founded
for the purpose of evading any Civil Rights laws. Its exist-
ence antedates that of the city from which it holds a bay
bottom lease.
The club does not now perform, and has never per-
formed, any public function. It receives no support from the
public treasury and has never received any. It does have the
exclusive use of dock facilities of its own construction and
maintenance, for which it pays the City of Miami one dol-
lar for a lease on the waterbottoms over which those fa-
cilities are constructed. There is no finding in this record
that the lease fee is grossly inadequate, amounts to subsidy
for the club, or represents a substantial financial contri-
bution to the operation of the club.
The club does not monopolize access to or the use of
the public waters of Biscayne Bay. The District Court did
not suggest, nor is there any substantial reason to believe,
that the club significantly interferes with such use or ac-
cess. Indeed, public dock facilities are located near those of
the club. The District Court made no finding, and we do
not know, how many private docks extend into the Biscayne
Bay waterfront, by the hundreds or otherwise, nor do we
know how many are built over bay bottoms leased from
the city, or for what consideration paid the city.
We do know, for the District Court so found, and it is
undisputed, that “except for the existence of the lease, the
City of Miami has never participated in or been involved
in the operation of the Club”, 370 F.Supp., at 1040. This
means, of course, that the city played no part whatever in
App. 11
the membership policies of the club. The District Court
found that there was no evidence before the Court that the
City of Miami was “aware of the discrimination practiced
by the Biscayne Bay Yacht Club which would require the
the City to terminate its lease”, 370 F.Supp., at 1044.
There have never been any membership requirements
or restrictions related to or predicated upon either race or
religion but membership can be obtained only by sponsor-
ship of three club members and by secret ballot of the club.
The result of this internal membership policy has been, and
is, that the club has no black or Jewish members.
On these facts, the Court held that the lease to the bay
bottoms underlying the dock facilities was “essential to the
club’s operation”, that it was “vital to the operation of a
yacht club”, and that the “ ‘symbiotic relationship’ between
the state and the Club exists, thereby making any discrim-
inatory action by the Club a violation of the Fourteenth
Amendment (citing Burton)”, 370 F.Supp., at 1042.
The Lease History
The first yacht race on Biscayne Bay, with fifteen
boats participating, took place on Washington’s birthday,
1887, about nine years before the City of Miami became an
organized municipality.
Shortly afterwards the Biscayne Bay Yacht Club was
organized at the Peacock Inn. The club was incorporated
under the laws of Florida in 1893 and subsequently re-
incorporated as a non-profit corporation in 1969.
The club room remained at Commodore Monroe's boat-
house until 1909. It then moved into its own building, a
App. 12
two story structure, built on piling at the end of the dock,
but still on the Commodore’s property. Later, a new station
on the bayfront a short distance north of Flagler Street was
built over the water, with a long dock in front. This had to
be abandoned in 1925 because of the construction of the
Bayfront Park. Another building was leased but the club
soon fell on hard times, caused by the hurricane of Septem-
ber, 1926, by the collapse of the Florida boom, and by the
failure of the Bank of Bay Biscayne. In 1932, however, the
club obtained its present property, located at 2540 South
Bayshore Drive, Coconut Grove.
Thereafter, for thirty years, 1932-1962, things sailed
along with clear skies, fair winds, glassy seas, and even
keels. In 1962 the City of Miami asserted title to the bay
bottoms under the dock facilities of the Biscayne Bay Yacht
Club. This was thirteen years after 1949, when, for ten
dollars, the Trustees of the Florida Internal Improvement
Fund had conveyed portions, if not all, of the bay bottoms
to the city. The 1962 assertion of title was handled by the
club leasing the bay bottoms which supported its dock fa-
cilities for a dollar a year. The record suggests that this
may have been done under protest but the District Court
makes no finding as to whether the City of Miami actually
had valid title to the bay bottoms or what the riparian
rights of the club may have been. We are left with Footnote
2, 370 F.Supp. 1040, that “Neither side has raised the issue
of whether riparian rights were vested in the Club prior
to 1962”. Nothing is said about riparian rights since 1962.
In any case, the lease is there, the club is obviously accept-
ing its benefits, whatever they may be, so we decide the
case in the light of its existence.
It is not to be overlooked, however, that the 1962 lease
wrought no change in a situation which had uninterrupt-
App. 13
edly been in effect for thirty years. The club had been there
all the time. The docks had been there all the time. After
the execution of the lease the club ran exactly as before.
Indeed, there is nothing to indicate that anybody intended
the lease to cause any change in those operations. The
fact is that the City of Miami laid claim to title to the bay
bottoms underlying the docks. The question was not liti-
gated but was resolved by the execution of the lease.
Since the lease was the sole nexus between the city and
the club, and since the District Court found that the lease
significantly involved the city in the internal operations of
the club, we do not know why the Court did not cancel the
offending appendage and simply enjoin the use of the docks.
In cases involving the attempted conversion of property
formerly public into impermissible private uses this Court
has cancelled leases and set aside sales. See, e.g., Wright v.
City of Brighton, 5 Cir., 1971, 441 F.2d 447 (sale res-
cinded) and United States v. State of Mississippi, 5 Cir.,
1974, 499 F.2d 425 (lease cancelled). This uld have left
this private club free to use its own club house, situated on
its private property, as it saw fit, which, under the Con-
stitution of the United States it clearly would have had the
right to do. This, of course, would have forestalled federal
court intervention into the internal affairs of a genuinely
private club and it would have forestalled even the slightest
claim of plaintiff-appellees to membership in the club.
Perhaps the outcome was influenced by a strong prac-
tical consideration. If the docks had been cut loose from the
club they, for all practical purposes, would have been use-
less. No one could have obtained access to them or egress
from them across the private property of the club. The abil-
ity to drive up in a boat or leave in a boat would have been
App. 14
of little value if one were nevertheless marooned at that
point from dry land.
Our Decision as to Significant State Involvement
[3] On the law as above discussed, and on the facts
as above recited, we have the same opinion of this case that
the Supreme Court had in Moose Lodge, supra: the facts
and circumstances fall far short of the symbiotic relation-
ship found in Burton, supra. As a matter of law and fact,
they fall short of establishing that the City of Miami has
so far insinuated itself into a position of interdependence
with the club that it must be recognized as a joint partici-
pant in the internal membership policies of the club. The
City of Miami has not significantly involved itself in those
membership policies. The lease does not provide a suffi-
ciently close nexus between the city and the club so that the
action of the club may be fairly treated as that of the city.
Both the District Court and our Panel which originally
heard this appeal obviously applied the “but for” rule to
this situation. The Panel said “without the city’s lease of
the bed of the bay the club could not exist“. Leaving aside
the fact that this private club had been in operation for
many years, with docks occupying the bay bottoms, before
the city laid claim to title, we think the Supreme Court
attributed little significance to the “but for” situation ap-
pearing in Moose Lodge. But for the liquor license the pri-
vate club could not have sold drinks. It requires no huge
store of imagination to know in 1976 that without the abil-
ity to supply drinks private clubs would, at best have a hard
time existing. In any event, the “but for” element did not
rear its head in the decision in Burton, which did involve a
lease to public property, without which the restaurant could
App. 15
not have existed. If the “but for“ approach were enough,
the Supreme Court could have swiftly disposed of Burton
with one of the shortest per curiams on record. Neither is
it to be overlooked that Burton was concerned with a place
offering public accommodation, not a private club. See,
Moose Lodge, supra, which was concerned with a private
club. See, also, case note on the Panel decision in this case,
54 Texas Law Review 642 (1976).’
Some I...idental Issues
In June and July of 1968 the City of Miami enacted
lengthy, extensive ordinances prohibiting any form of ra-
cial or religious discrimination by lessees of city owned
land. The ordinances were not only prohibitory but pre-
scribed affirmative action by the lessees, such as opening
up membership rolls, prohibiting selection of members by
secret ballot, directing that applicants for membership
should not be required to have sponsors, and the like.
The District Court noted the existence of these ordi-
nances, 370 F.Supp. 1040-1041. However, the case was de-
cided solely on Fourteenth Amendment grounds. There is
no cross assignment of error by the appellees, raising any
issues of pendent jurisdiction relief. We consider, therefore,
that we have only a § 1983 case.
The District Court did not consider or decide whether
the Miami ordinances applied to bay bottom lessees. If the
The author of the Texas Law Review article wrote: The cumu
lation of the factors relevant to state action analysis demonstrates that
the state’s involvement with the Biscayne Bay Yacht Club is insuf-
ficient to classify the club’s exclusion of plaintiffs as state action. .
Both policy and precedent require that the Fifth Circuit, considering
the case en banc, reverse the panel’s decision”. [At 652].
App. 16
ordinances do apply, it was not decided whether they pro-
vided appellees with an adequate remedy at law (forestall-
ing injunctive procedures). Nothing was said about a fail-
ure to enforce the ordinances as possibly supplying grounds
for Fourteenth Amendment relief. In short, the opinion and
judgment below did not rely on the ordinances. We leave
them where the District Court left them.
One final word. This is not a class action suit. There
were two plaintiffs. Mr. Fincher is black. Mr. Golden is
Jewish. About these plaintiffs the Court made the follow-
ing cryptic comment:
“Plaintiff Fincher did not appear to the court
to be a boating enthusiast. Plaintiff Golden testi-
fied at length about his boating skills and un-
equivocally asserted that the only reason the Club
denied him membership is because he is Jewish;
the court does not share Mr. Golden’s conclusion.”
370 F.Supp., at 1043.
From this it could be inferred that Mr. Fincher was
not a very appropriate candidate for membership in a yacht
club and that Mr. Golden was not denied membership on
account of his religion. The Court nowhere specifically
found as a fact that either was rejected on account of race
or religion. It did say that their inability to get a recom-
mendation amounted to a rejection and thus gave them
standing to challenge the membership policies of the club.
It did not expressly find as a fact that their inability to get
a recommendation was caused by reasons of race or reli-
gion. That the Court thought so reasonably appears, how-
ever, from the opinion, considered as a whole. It may be
that the standing of Fincher and Golden was too thin. See,
e.g., Rizzo v. Goode [1976, 44 U.S.L.W. 40951 US.
— Sa ae we
App. 17
— 96 S.Ct. 598, 46 L.Ed.2d 561. We have concluded,
however, not to allow this point to decide the disposition of
the appeal.
The dissenting opinion emphasizes that the Miami ord-
inances “became a part of this and other similar leases by
the City of public property”. The ordinances repeatedly re-
fer to “facilities”, and nothing else. Query: Is a bay bottom
a facility? We indicate no opinion on the subject because,
in the posture of this appeal, we regard the applicability
of the ordinances as not before us for review and thus
immaterial.
In like manner, we attribute no significance to Gold-
en’s failure, all the way through the Florida Court of Ap-
peals, to secure an adjudication that the ordinances do
apply to bay bottom land. Possibly, he chose the wrong
procedure or sought the wrong relief. As to this the record
is silent and such blind spots are not to be illuminated by
appellate guess work.
Our decision is founded on the case made by the parties
and decided by the District Court. That Court found as a
fact that the existence of the lease was the sole nexus be-
tween the City of Miami and the Biscayne Bay Yacht Club.
The Court further held that this, alone, amounted to sig-
nificant state involvement with the club and its member-
ship policies.
For all the reasons hereinabove articulated, we must
disagree.
The judgment of the District Court is reversed and
the cause remanded with directions to dismiss the com-
plaint.
REVERSED and REMANDED with Directions.
App. 18
JOHN R. BROWN, Chief Judge, with whom WIS-
DOM, GOLDBERG, GODBOLD and CLARK, Circuit
Judges, join (dissenting) :
I respectfully dissent for I cannot place my imprima-
tur on a decision which fails to perceive the realities of the
racial and religious discrimination presented by the facts
of this case, which implicitly if not explicitly emasculates
prior Fifth Circuit cases, which I believe were rightly de-
cided, and which cannot be squared with controlling Su-
preme Court precedent.
Part I
My position is reflected by all that I said in my opinion
for the Court 521 F.2d 344, when this case was originally
considered and which I readopt.
In this opinion I referred numerous times to the test
of significant state involvement. I think that is a proper
test. Judge Coleman makes the point in his dissent, car-
ried ward into his opinion for the en banc court, that
any lease is “significant state involvement.” The answer
to this is, of course, that our concern is with legally sig-
nificant involvement and not with involvement in a sine
qua non sense. Whether involvement in the “but for” sense
is of sufficient legal significance requires case by case
analysis.
Part II
At the outset as we get underweigh from the starting
bouy in assaying the Court’s en banc opinion, several things
should be gotten out of the way. First, the Court, with
expected candor, assumes at least arguendo that Golden,
App. 19
the Jew, and Fincher, the Black, have standing to challenge
the racial-religious discrimination practices of BBC.
Second, and even more important, the Court recog-
nizes that the District Judge found racial-religious dis-
crimination in the membership policies of the Club, as
indeed it had to in the face of the findings and conclusions
of the District Judge which are above the Plimsoll line of
F. R. Civ. P. 52 (a) and which were clearly mandated both
by the testimony of the officers of BBYC’ and its By-
The Court states:
“It may be that the standing of Fincher and Golden was too
thin. See, e.g., Rizzo v. Goode [1976, 44 U.S.L.W. 4095] — US.
__, 96 S.Ct. 598, 46 L.Ed.2d 561. We have concluded, however,
not to allow this point to decide the disposition of the appeal.
530 F.2d page 23.
The Court states:
“The [District] Court nowhere specifically found as a fact
that either [Golden or Fincher] was rejected on account of race or
religion. It did say that their inability to get a recor ndation
amounted to a rejection and thus gave them standing to challenge
the membership policies of the club. It did not express the find-
ings of] fact that their inability to get a recommendation was
caused by reasons of race or religion. That the Court thought so
reasonably appears, however, from the opinion, considered as a
whole.”
530 F.2d page 23.
The Judge stated:
With these [demographic] figures in mind, it taxes credulity
that the defendant Club can state without reservation that it prac-
tices no discrimination and yet, at the same time, is unable to
state whether it has ever had a Black or Jewish member in its
eighty six years of operation. 370 F.Supp. at 1043. The court
concludes that plaintiffs have not been afforded the same rights
to membership as their White and Christian counterparts. Id. The
facially neutral policy before the court is the sponsorship method
of membership in the Biscayne Bay Yacht Club. While the spon-
sorship requirement is applicable to Black and White and Jew
and Christian alike, in a club whose members from inception have
been only White and Christian, the effect of the sponsorship re-
quirement is to deny Blacks and Jews any meaningful opportunity
for membership. (Citations omitted). Id.
App. 20
Laws* which did not recognize the right of any person
Black, White, Christian, Jew or Moslem to “apply” for
membership. They restricted processing of prospective
memberships to 3 sponsors who could extend an “invita-
tion“ when, and only when, the eightman membership
*The By-Laws in pertinent part provide:
ARTICLE VI
ELECTION OF MEMBERS
Sec. 1. INVITATION TO MEMBERSHIP. Membership as to
all classes of members except Life, Ex-officio, and Juniors qualified
to transfer subject to Article V, Section 6, shall Le attained by the
following procedure:
A. A candidate for membership shall have three sponsors
who shall file with the Secretary letters by each of them con-
cerning his or her qualifications therefor, to go with a form
to be furnished by the Secretary to the sponsors upon appli-
cation for the same, whereon detailed data concerning the
candidate will be set forth and signed by each of the sponsors.
B. Promptly upon receipt of the form and accompanying
letters of the sponsors, the Secretary shall send out a notice
to all Senior and Life members giving:
1. The name of the candidate.
2. His or her sponsors.
3. The date upon which the Membership Committee will
next meet to consider all candidates.
C. Any Senior or Life member wishing to express his views
concerning a candidate may so do in writing (to be held
strictly confidential] by delivering his letter to the Secretary
prior to the next Membership Committee meeting, or he may
appear in person before such committee and present his views.
Immediately following final action by the Membership Com-
mittee regarding any candidate, the Secretary shall destroy
all letters received regarding such candidate, with the excep-
tion of the letters of the sponsors, which shall remain in the
file of the Secretary.
D. The Board of Governors, acting as a membership com-
mittee, shall after due investigation vote by secret ballot on
each candidate, but until at least ong | (30) days have
elapsed after notice has been mailed by the Secretary to the
Senior and Life members with respect to such candidate. The
board shall not sit as such membership committee unless at
App. 21
committee had approved the candidate under a structure
which made the three-man blackball pennant a final re-
jection after which virtually all of the supporting materials
were to be destroyed.
Thus we are faced squarely with the problem of
whether, in the operation of BBYC and its essential de-
pendence on its mooring docks which rest not only on the
bay bottom but are bottomed on the essential lease from the
city, there is sufficient state involvement under § 1983.
The majority court, misled perhaps by the trial court’s
conclusion (No. 4) that there was no evidence . . before
the court that defendant City of Miami was aware of the
discrimination practiced by” BBYC, 370 F.Supp. at 1044,
made as a prefatory remark to denial of relief against the
Mayor and City Commissioners,’ gives the impression that
least eight members are present, and no invitation to member-
ship shall be extended if as many as three members of said
committee shall vote unfavorably on the candidate. If the
Membership Committee fails to approve a candidate after
such secret ballot, he or she shal] not be eligible to be con-
sidered again until the expiration of twelve months from the
date of such disapproval.
E. If the Membership Committee approves a candidate for
invitation to membership, the Secretary shall advise the
sponsors and then, and not until then, may the sponsors ex-
tend the invitation to the candidate, and they shall report to
the Secretary whether the inyitation has been accepted; and
if accepted, the Secretary shall confirm to the candidate the
invitation and acceptance, and the membership of the club
shall be advised thereof in the next monthly notice.
The Court states: a
No evidence being before the court that defendant City of
Miami was aware of the discrimination practiced by the Biscayne
Bay Yacht Club which would require the City to terminate its
iease, and assuming that defendant Biscayne Bay Yacht Club will
comply with the court’s Order and immediately cease its discrim-
inatory practices, no relief is appropriate against defendant mayor,
or commissioners. 370 F.Supp at 1044.
App. 22
all of this was a great big shock to the City of Miami and
its was completely innocent of what was going on or, more
significantly, what was said was going on in terms of vio-
lation of peoples constitutional rights.“
But this is far from correct. Although it must readily
be conceded that at the time of the initial 1962 lease the
City had no record-established awareness of the member-
ship policies of BBYC or even an awareness, cf. Wood v.
Strickland, 1975, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d
214; Scheuer v. Rhodes, 1974, 416 U.S. 232, 94 S.Ct. 1683,
40 L.Ed.2d 90 that § 1983 would be judicially orbited to
its current apogee, much water has gone over the dam in
the intervening years to bring this sharply to the con-
sciousness of the City Fathers. Indeed, at that very time,
the City was acutely aware of the limitations to public use
imposed by the 1949 deed from the Internal Improvement
Fund, State of Florida.’
No appeal was taken from this part of the order so we are not
faced here with the problem of the scope and nature of relief available
against erring municipal officials, either in their personal or official
capacities, as “persons” under § 1983 on which the Court en banc has
recently ruled. See Muzquiz v. City of San Antonio, 5 Cir., February 27,
1976, 528 F.2d 926 (en banc), original panel opinion 520 F.2d 993;
Warner v. Board of Trustees of the Police Pension Fund Of The City of
New Orleans et al, 5 Cir., February 27, 1976, 528 F.2d 505, original
panel opinion 522 F.2d 1384.
The Deed from the Internal Improvement Fund to the City of
Miami (Plf. Ex. 11) states:
PROVIDED, HOWEVER, anything herein to the contrary not-
withstanding this deed is given and granted upon the further ex-
press condition subsequent that the Grantee herein or its successors
and assigns shall never sell or convey or lease the above described
land or any part thereof to any private person, firm or corporation
for any private use or purpose, it being the intention of this re-
striction that the said lands shall be used solely for public purposes,
including municipal purposes and not otherwise.
PROVIDED, FURTHER, anything herein to the contrary notwith-
App. 23
Because the 1962 lease was expressly subject to these
conditions, the parties sought and obtained from the Trust-
ees of the IIF a release of the restriction in the 1949
deed “limiting the use of the lands conveyed therein to
municipal purposes”. In the waiver IIF found that such
“improvements will help relieve the acute shortage of pub-
lic dock facilities existing in the City of Miami.” The
waiver was effective during the life of the lease but to
“terminate and cease to be effective upon cancellation or
termination of the lease”. The waiver, however was sub-
ject to specific conditions which, if not then readily recog-
nizable as significant, became so by the events of 1968 and
the renewal of the lease in 1970.“
Now enters Golden, the persistent, tenacious advocate
for the obliteration of the last vestiges of state ordained
racial or religious discrimination. Through his appearances
standing, this deed is given and granted upon the further ex-
press condition subsequent that the Grantee herein or its succes-
sors or assigns shall not give or grant any license or permit to any
private person, firm or corporation to construct or make by any
means, any islands, fills, embankments, structures, buildings or
other similar things within or upon the above described lands or
any part thereof for any private use or purpose, as distinguished
from any public or municipal use or purpose. (emphasis supplied).
8Provided, however, that this Waiver is executed to the following
conditions:
(1) The City Commission retains the authority to cancel said
lease agreement in the event any development would occur in
the operation by the lessee of the leased premises which is
inimical to the general public interest.
(2) That the City Commission of the City of Miami retains the
authority to cancel said lease agreement in the event of a need
for the leased lands for public purposes other than the munici-
pal purposes found herein.
(emphasis supplied)
App. 24
before agencies of the city, if not the City Commission it-
self, Golden took a major role in drafting the ordinances’
designed to prevent racial and religious discrimination
which by their terms became a part of this and other simi-
lar leases by the City of public property.
By the ordinance adopted 13 June 1968 (amended with
no significant changes as to this case July 11, 1968) the
City in language which would do credit to a Bicentennial
constitutionalist declaring in the prefatory whereas pream-
ble the necessity “that all of its residents be afforded equal
opportunity and protection under the Constitution and
Laws of this nation” and reaffirming its policy to “prop-
erly protect all of its citizens regardless of race, creed,
religion, color or national origin, in their basic constitu-
tional rights”, adopted a far reaching but highly specific
act ordaining in Section 1 that the lessee of any property by
the City will not discriminate against or “shall not discrim-
inate against or refuse or deny to any person or persons,
guests or permittees, the use of facilities leased from the
city because of race, creed, religion, color or national ori-
gin”. The ordinance then set up a detailed code opening up
any such lessee club or organization to all persons without
discrimination and prescribing the conditions and require-
ments for the operation of such lessees in their membership
policies and practices. Of unusual importance was the
statutory declaration (Sectior 3) that the ordinance “being
a implementation of the provisions of the Constitution of
the United States of America.. , said provisions are to be
considered a part of every such lease as described . . . re-
Acting perhaps as a sealawyer, Golden did the original drafts of
these ordinances but the final drafts were prepared by the City At-
torney’s office. R. at 28, 35.
App. 25
gardless of the specific written terms of any lease now
existing or to be entered into in the future“.
Section 1. That ge lessee of any property of which the: City of
Miami is the owner shall not discriminate against or refuse ur deny to
any person or persons, guests or permittees, the use of the facilities
leased from the City because of race, creed, religion, color or national
origin.
Section 2. That in order to facilitate the implementation of the
policy of the City of Miami as set forth in Section 1, in instances
wherein leases are entered into between the City of Miami and e
tions or clubs for the use of City property or City facilities by the
members thereof, said organizations or clubs shall comply with the
* requirements:
I. Membership in the said club or organization shall be
available to all persons without discrimination as defined in Sec-
tion 1 hereof.
II. There shall be no requirement that applicants for enroll-
ment be sponsored by anyone as a condition to such applicant
being r or accepted for membership. 7
II. The club or organization shal] make a minimum of
five per cent of existing enrollment of the various types of mem-
bership in such club or organization available for new enrollment
for a minimum period of thirty days of each year, the first such en-
rollment period to commence September 1, 1968. In the year 1969
the enrollment period shall commence July Ist of each year there-
after. In the event there is more than one type of membership
available, this shall mean five per cent of each type of member-
ship shall be open to the general public.
IV. Acceptance into membership shall be determined by
simply majority vote of the general membership at a meeting
designated for such purpose, and there shall be no secret ballot for
admission to membership
V. In the event there are a greater number of applicants
than there are openings available for membership under the an-
nual five per cent of enrollments as set forth above, then, and in
that event, new members in this enrollment period shall be selected
by lot.
*VI. Within the thirty day period prior to the date of the
commencement of the enrollment period described above (sub-
section III), the club or organization shall advertise twice in two
daily newspapers of general circulation published in the City of
Miami a notice of the acceptance of new members as hereinabove
provided, and notice of the purposes of the club or organization
and of the programs offered by the club or organization to the
App. 26
But Golden did not rest upon his oars. Convinced that
these ordinances were not being complied with by BBYC
public. Said notice for the year 1968 shall be printed on the first
and fourteenth days of August. For the year 1969 the notice shall
be printed on the first and fourteenth gays of June, and on the
first and fourteenth days of June of each year thereafter.
B. Dues—All members in each of the various categories of mem-
bership shall pay equal dues, if any, within said categories
C. Minutes of Meetings All minutes of meetings, whether regu-
lar meetings er special meetings, or however designated, of said
club or organization shall be posted upon the bulletin board upon
the club premises within thirty days after the date of such meet-
ings, and a copy thereof shall be forwarded to the City Manager
of the City of Miami, or his designee.
D. Privileges—All members in each category shall have equal
rights and privileges.
Section 3. The foregoing matters as set forth in Section 1 and
2 above being an implementation of the provisions of the Constitution of
the United States of America and the Constitution of the State of Flor-
ida, said provisions are to be considered a part of every such lease as
described above entered into between the City of Miami and any person,
firm, corporation, club or organization, regardless of the specific written
terms of any lease now existing or to be entered into in the future.
Section 4. That any person, firm, corporation, club or organiza-
tion violating the terms and conditions of this ordinance shall be sub-
ject to having its lease forthwith terminated by the City of Miami for
said violation, upon due notice to the violator and upon an opportunity
to be heard before the Commission of the City of Miami concerning
said violation.
Section 5. That all ordinances, code sections or parts thereof in
conflict herewith, insofar as they are in conflict, are hereby repealed.
Section 6. If any section, sentence, clause, phrase or word of this
ordinance is for any reason held or declared to be unconstitutional, in-
operative or void, such holding or invalidity shall not affect the remain-
ing portions of this ordinance; and it shall be construed to have been
the intent of the Commission of the City of Miami to pass this ordinance
without such unconstitutional, invalid or inoperative part therein; and
the remainder of this ordinance, after, the exclusion of such part or
parts, shal] be deemed and held to be valid as if such parts had not been
included herein.
Section 7. This ordinance is hereby declared to be an emergency
measure upon the ground of urgent public need for the preservation of
peace, health, safety and property in the City of Miami, and the re-
—— —
App. 27
he began a long, and a least at this point, unsuccessful
battle to vindicate these rights. Before taking formal ac-
tion, Golden informed the City Attorney of the ordinance
violations by the club by letter to which there was no re-
ply.“ Thereafter he appeared before the City Commission
with no success.’?
In the meantime BBYC sought and on March 6, 1970
obtained an amendment to the 1962 lease for approximately
one additional acre of adjacent land to “permit construc-
tion of additional concrete dock and timber mooring piles
... being an extension of the existing dock... The amend-
ment was expressly made subject to the restrictions im-
posed by IIF in the 1962 waiver (see note 8 supra) '’. Again,
IIF granted a waiver on the same prescribed conditions.
Despairing of his failure in the municipal-legislative
approach and presumably unwilling to see his constitutional
craft strand on municipal inaction Golden filed in April of
1970 a petition for writ of mandamus in the state Circuit
Court of Dade County against the City of Miami. In it he
quirement of reading this ordinance on two separate days is hereby
dispensed with by a vote of not less than four-fifths of the members of
the City Commission.
*The sections of Ordinance 7668 which are asterisked appear as
amended by Ordinance 7682 which was adopted July 11, 1968. In ad
dition to amending the two sections of 7668 indicated above, Ordinance
7682 includes the following pertinent section :
Section 6. This ordinance is hereby declared to be an emer-
gency measure upon the ground of urgent public need for the pres-
ervation of peace, health, safety and property in the City of Miami,
and the requirement of reading this ordinance on two separate
days is hereby dispensed with by a vote of not less than four-fifths
of the members of the City Commission.
IR. at 36-37.
12R. 27-28.
These became conditions J and 2.
App. 28
asserted under oath his failure to obtain admission to
BBYC because of the procedure requiring 3 sponsors (see
Note 4 supra and accompanying text). He then set forth
the specific requirement of the July 1968 ordinance (see
Note 10 supra) requiring lessee clubs to admit new mem-
bers one month of the year without requirement of spon-
sorship and the fact that BBYC has failed to comply with
the ordinance and the City has failed to invoke the penalty
despite demand and personal appearance by Golden before
the City Commission. He sought cancellation of the lease as
the ordinance provides. The prayer was for an “Alterna-
tive Writ of Mandamus requiring the Respondent [the
city] to enforce the above mentioned ordinance and to re-
quire [BBYC] to comply with the said ordinance or to
show cause . . why it should not enforce” the ordinance.
The City responded by motion to quash and on September
15, 1970 Circuit Judge Cullen by an unilluminating order
granted the motion to quash but, of great importance, ex-
pressly prescribed that it was “without prejudice to bring
such appropriate action as may be available to petitioner”.
Presumably unwilling to run any risk of exhaustion of
remedy as a prelude to a § 1983 suit as an “appropriate
action” Golden then appealed to the District Court of Ap-
peals which affirmed without opinion.
Came then the instant § 1983 suit in February 1974,
6 years after Golden, as Mordecai at the gate, had initiated
his lamentation and helped lobby the enactment of the
ordinance, 4 years after the execution of an amendatory
lease, and 2 years after the City had positive notice through
the mandamus proceeding that BBYC, as lessee, was en-
i
!
!
—
App. 29
gaging in elaimed denial of membership on the basis of race
and religion.“
This continuation of the relationship between the City
and BBYC—whether by formal extension of the lease or
acquiescence in its continued enjoyment—in the light of the
charge and now judicially credited fact of racial-religious
discrimination demonstrates that this is state action
whether viewed as Moose Lodge, Burton, or an amalgam
of them with Gilmore. Whatever its motive—and this is
irrelevant in § 1983—the City has inescapably insinuated
itself into the continued availability of an essential facility
which it knows now is operated to exclude nonmembers,
which is to say Jews and Blacks. See Burton v. Wilmington
Parking Authority, 1961, 365 U.S. 715, 725, 81 S.Ct. 856,
862, 6 L.Ed.2d 45, 52. There is thus a confluence of state
participation in the relationship and state participation in
the discrimination itself. See New York Jaycees, Inc. v.
United States Jaycees, Inc., 2 Cir., 1975, 512 F.2d 856,
858 citing, Powe v. Miles, 2 Cir., 1968, 407 F.2d 73, 81;
Jackson v. Metropolitan Edison Co., 1974, 419 U.S. 345,
95 S.Ct. 449, 42 L.Ed.2d 477.
Although motive may be irrelevant to § 1983 liability,
the interplay of city and club purposes in this case has a
significant impact on the result of the assay for Burton
synergism. Indeed, the enhancement of causes and effects
“The District Court noted “that the City has adopted a resolution
deferring any extension of the lease with the Club pending this deci-
sion.” [370 F.Supp. at 1044] (See Plf. Ex. 12, R. 63)
'SWhat Moose Lodge involved was the right of guests, not those
seeking membership, 407 U.S. at 170-71, 92 S.Ct. at 1970, 32 L.Ed.2d
at 636 a significant difference from those claiming the right to com-
pete for membership for use of facilities which could not exist without
the City lease.
App. 30
which take place here orbit about BBYC’s racial and re-
ligious discrimination. The consideration passing to the
city for granting the club the exclusive use of this seg-
ment of scarce bay bottom space is not the token $1 per
year. It is the assurance that BBYC’s white non-Jewish
members will be able to moor their yachts at docks on this
state-owned land instead of at an overcrowded public pier.
For its part, BBYC attorns its annual $1 because it needs
this public bay bottom like a dead man needs a coffin.
Without this public property it may continue to be a club,
but it certainly will not continue to be a yacht club.
Part III
Of course this case presents in stark form the anomaly
of there being significant state action through the munici-
pality while the municipality (and perhaps its animate
functionaries, see note 10 supra) has effective immunity as
a non “person” under § 1983. City of Kenosha v. Bruno,
1973, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109. See also
Moor v. County of Alameda, 1973, 411 U.S. 693, 95 S.Ct.
1785, 36 L.Ed.2d 596; Monroe v. Pape, 1961, 365 U.S. 167,
188-93; 81 S.Ct. 473, 484-87, 5 L.Ed.2d 492, 505-07. But
nonetheless the ordinance (note 10 supra) is of unusual
significance. Its incorporative provision (Section 3) means
that the terms of the ordinance are read into the lease. The
ordinance imposed burdens both on the city, as lessor, and
the lessee, BBYC. Each was subject to the stringent man-
dates against racial and religious discrimination and the
means adopted by the legislative body as a reasonable way
by which to achieve the mutually adopted goals.
Under the structure of the ordinance and lease made
under and subject to it, the lessee was burdened down with
App. 31
all of the prohibitory and affirmative mandates, except
possibly the obligation or responsibility of initiating
criminal prosecutions or overseeing the exaction of such
penalties.
Of course, enforcement of city policy, reflected by its
unchallenged ordinances is the very essence of municipal
government. Under the construct of the ordinance (and
the lease) substantial responsibility for compliance fell
directly on the lessee. The situation is, of course, not a
complete parallel, but as the Supreme Court has recently
said in Jackson v. Metropolitan Edison Company:
We have of course found state action present in
the exercise by private entity of powers tradition-
ally exclusively reserved to the State. 1974, 419
U.S. 345, 353, 95 S.Ct. 449, 454, 42 L.Ed.2d 477,
485 citing, Nixon v. Condon, 286 U.S. 73, 52 S.Ct.
484, 76 L.Ed. 984, 88 A.L.R. 458 (1932) (elec-
tion); Terry v. Adams, 345 U.S. 461, 73 S.Ct.
809, 97 L.Ed. 1152 (1953) (election); Marsh v.
Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265
(1946) (company town); Evans v. Newton, 382
U.S. 296, 88 S.Ct. 486, 15 L.Ed.2d 373 (1966)
(municipal park).
We have long ago applied such principles in race civil
rights cases.
Indeed, the State of Florida laid this down in the ini-
tial conditions it imposed, see note 8 supra, which required
that the lease be terminated if operations under it become
“inimical to the general public interest.” The city and
BBYC having expressly covenanted to a policy of non-
App. 32
racial-religious discrimination and the institution of a club-
organization structured to achieve this equality became
equally bound in the eyes of the law either to (i) correct
the asserted deficiencies or (ii) terminate the arrangement.
The fact—now undisputed—is that the city turned both an
advocate and deaf ear to these repeated complaints—now
judicially credited—which makes Baldwin v. Morgan, 5
Cir., 1958, 251 F.2d 780, 788 directly applicable. We said:
State action is indeed required under the Four-
teenth Amendment and 42 U.S.C.A. § 1983. But
those who directly assist the admitted state agency
in carrying out the unlawful action become a part
of it and subject to the sanction of Section 1983.
In holding the club responsible, I go beyond ordinary
principles of agency or landlord-tenant. Rather with the
sweep of § 1983 and the aims of that legislation it rests
upon the necessity of preventing persons from hiding be-
hind private discrimination which is not reachable by the
Constitution when from mutually interacting conduct the
resulting enterprise is infected by significant governmental
action.
Of course a municipality may engage in conduct which
amounts to state action even though under Kenosha there
is practical immunity as a non-person. But those animate
persons who are engaged in significant parts of such ac-
tivity and who reap the benefits of it are amenable under
§ 1983 for appropriate relief.“ The amenability of a pri-
vate party under § 1983 for conduct which is significantly
attributable to government is not based on an imputed
As to “appropriate” relief see Note 6 supra.
App. 33
principle of agency or the like but on the ground that, as
§ 1983 itself says, “Every person” shall be liable to the
injured party. Thus that liability is not confined to some
governmental official, but frequently is imposed against,
for example, operators of retail stores, restaurants, hotels,
buses and the like.“
Of course in the ordinary situation the liability of pri-
vate persons flows from the unconstitutional municipal
ordinance or practice in certain discriminatory actions.
Here, unlike an ordinance which imposes an unconstitu-
tional burden upon someone in the private community, this
ordinance imposes a continuing burden on both the City as
lessor and the BBYC as lessee to carry out the mandate of
non-discrimination. Without suggesting that as a universal
matter failure to enforce constitutes sufficient state action,
we have already decided that failure on the part of munici-
pality to take action where needed constitutes state action.
In Jennings v. Patterson, 5 Cir., 1974, 488 F.2d 436, pri-
vate individuals erected a barricade across a street, which
was publicly owned and the City refused to remove the
barricade. Judge Roney in writing the opinion of the ma-
jority related this nonfeasance concept to § 1983 and his
words are particularly persuasive:
“Tt is abundantly clear that one reason the legis-
lation was passed was to afford a federal right in
17Adickes v. S. H. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct. 1598,
26 L.Ed.2d 142; Goodloe v. Davis, 5 Cir., 1975, 514 F.2d 1274; Cason
v. City of Jacksonville, 5 Cir., 1974, 497 F.2d 949, 950; Jennings v.
Patterson, 5 Cir., 1974, 488 F.2d 436, 438; Hall v. Garson, 5 Cir., 1970,
430 F.2d 430, 442-43; Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780,
787; Derrington v. Plummer, 5 Cir., 1956, 240 F.2d 922, cert. denied,
353 U.S. 924, 77 S.Ct. 680, 1 L.Ed.2d 719; Browder v. Gayle,
M.D.Ala., 1956, 142 F.Supp. 707, aff'd, 352 U.S. 903, 77 S.Ct. 145,
1 L.Ed.2d 114.
App. 34
federal courts because, by reason of prejudice,
passion, neglect, intolerance or otherwise, state
laws might not be enforced and the claims of citi-
zens to the enjoyment of rights, privileges, and
immunities guaranteed by the Fourteenth Amend-
ment might be denied by the state agencies”
Monroe v. Pape, 365 U.S. 167, 180, 81 S.Ct. 473,
480, 5 L.Ed.2d 492, 501. Accordingly, we hold that
the failure of the City and its governing officials
to dismantle the fence constitutes state action pro-
scribed by Section 1983. (emphasis supplied).
See also Azar v. Conley, 6 Cir., 1972, 456 F.2d 1382, 1387:
Ingram v. Dunn, N.D.Ga., 1974, 383 F.Supp. 1043, af-
firmed, 514 F.2d 1070; Minshew v. Smith, N.D.Miss., 1974,
380 F.Supp. 918, 922; ef. Civil Rights Cases, supra; Bell
v. Maryland, 1964, 378 U.S. 226, 309-11, 84 S.Ct. 1814,
1859-1860, 12 L.Ed.2d 822, 845-846.
Although the barrier which blocks these parties access
to the Biscayne Bay Yacht Club may be less physically"
evident than in Jennings it is nevertheless there as well as
the racial and religious animus which it represents. And
the City’s failure to remove it clearly constitutes complicity
in the enterprise of sufficient magnitude to satisfy even
the most conservative state action standards.
Likewise, the extension of the lease or the continuation
of the enjoyment of it in the face of now judicially estab-
'8It may be not less, but more. Access to the driveway leading into
the club’s landbased grounds is not what made BBYC a great nautical
organization. For a club which has long-established races such as the
Sir Thomas Lipton Challenge Cup Race, The Miami-Montego Bay Race,
the St. Petersburg-Venice Lauderdale Race, the notion that the club
could be land-locked without mooring facilities would be a disservice
to the memory of the pre § 1983 ambitions of Commodore Munroe.
App. 35
lished discrimination, quite without regard to affirmative
cancellation by the City, made the BBYC a participant in
the discrimination.
Part IV
It is as though the city in its contract had expressly
recited that it leased the property to BBYC, an exclusively
White non-jewish organization, for the exclusive use of its
members and guests. Gilmore v. City of Montgomery, 1974,
417 U.S. 556, 566, 94 S.Ct. 2416, 2422, 41 L.Ed.2d 304,
315-17.
Gilmore clearly proscribes the exclusive use of public
property by racially discriminatory organizations. The pri-
mary consideration should be whether this Court is willing
to condone the State’s participation in, and approval of,
racial discrimination by allowing public property io be
utilized in this enterprise.“
In Gilmore the Supreme Court emphasized that the
city policies permitting exclusive use of city facilities by
segregated schools operated to contravene an existing
school desegregation order, just as the discrimination in
this case violated the clear mandate of the ordinance-lease.
Gilmore, supra 417 U.S. at 568, 94 S.Ct. at 2423, 41 L.Ed.
19Mr. Justice Blackmun writing for the majority explained the
exclusive use concept as follows:
Here, the exclusive use and control of city recreational facil-
ities, however temporary, by private segregated schools was little
different from the city’s agreement with the YMCA to run a
“coordinated” but, in effect, segregated recreational program.
Such use and control carried the brand of “separate but equal”
and, in the circumstances of this case, was properly terminated by
the District Court.
417 US. at 567, 91 S.Ct. at 2423, 41 L.Ed.2d at 316.
App. 36
2d at 316. The Court noted that “the city’s officials were
aware of this [desegregation] order and were responsible
for seeing that no actions on their part would significantly
impede the progress [of desegregation] ....” Id. In Golden
the city’s lease with BBY, and its refusal to recognize
the Club’s restrictive membership, operates to contravene
the city’s own antidiscrimination ordinances. The City of
Miami officials were aware of the policy expressed by the
ordinance and had a duty to take no action, such as leasing
city property—or now more important, the extension of the
lease—that would contravene the requirement that all city
lands be used in a non-discriminatory manner.
Gilmore does not state that a segregated group can
never use public facilities. Rather it emphasizes that such
an organization cannot have exclusive use and control of
city-owned property. This is what the BBYC lease permits
—exclusive use of city property by a racially and relig-
iously restricted group. That this is sufficient to find state
action is indicated by Gilmore in that if “the city or other
governmental entity rations otherwise freely accessible
recreational facilities, the case for state action will nat-
urally be stronger . . . Gilmore, supra 417 U.S. at 574,
94 S.Ct. at 2426, 41 L.Ed.2d at 320.
Part V
Today the Court opens the door to subterfuge because
well within the bounds of this opinion, a governmental
entity may accomplish indirectly what it could never do
directly by leasing public property to a private segregated
organization and then disavowing any direct participation
in the discriminatory membership policies.
App. 37
This sort of subtle method of effectuating racial and
religious discrimination has been specifically rejected by
the Supreme Court in Gilmore and by this Court in Wim-
bish v. Pinellas County, Florida, 5 Cir., 1965, 342 F.2d
804 and Derrington v. Plummer, 5 Cir., 1956, 240 F.2d
922, cert. denied, 353 U.S. 924, 77 S.Ct. 682, 1 L.Ed.2d
719, where we refused to allow public property to be leased
to segregated organizations.
Part VI
The court’s response to its own question why the Dis-
trict Court did not cancel the “offending appendage and
simply enjoin the use of the docks””° was, that it was prob-
ably influenced by the practical result that docks cut loose
would be useless. That answer ignores the whole record.
The docks are an integral part of a yacht club if it is not
one in name only. Because they are indispensable to the
operation of a yacht club worthy of the nautical traditions
of this organization and they do not exist without the
essential governmental lease, the plaintiffs seek not just
to tie up at the docks, but to moor their vessels at the dock
as a part of the yacht club and thereby enjoy all the privi-
leges of membership until such time as the State cuts itself
altogether free from the enterprises.
The Court’s argument that there were other docking
facilities, both public and private on Biscayne Bay, avail-
able to plaintiffs is not an acceptable one in assaying
denial for proscribed reasons. As to use of facilities which
cannot operationally exist without State action, the same
20See 530 pages 21-22, citing Wright v. City of Brighton, 5 Cir.,
1971, 441 F.2d 4147; United States v. State of Mississippi, 5 Cir., 1974,
499 F.2d 425.
App. 38
argument has been made and rejected in the cases of pub-
lic golf courses, swimming pools, public auditoriums and
the enjoyment of segregated seats on a city bus.”!
Part VII
The majority places emphasis on our recent decision
in Greco v. Orange Memorial Hospital Corp., 5 Cir., 1975,
513 F.2d 873 which, of course, also concerned the lease
of public land by a private entity.
In writing the opinion for the Court when this case
was first considered I distinguished Greco on the obvious
ground that it did not involve racial discrimination which
is a realm of law where courts have consistently and readily
found state action. See Golden v. Biscayne Bay Yacht Club,
supra, at 326-29.
But Greco is also distinguishable on its facts for there
the Court stressed that the lease from the city had not in-
cluded any condition relating to the performance or non-
performance of elective abortions.” In contract, both the
21Beal v. Holcombe, 5 Cir., 1951, 193 F.2d 384, cert denied, 1954,
347 U.S. 974, 74 S.Ct. 783, 98 L.Ed. 1114 (golf course); St. Peters-
burg v. Alsup, 1956, 238 F.2d 830, cert. denied, 1957, 353 U.S. 922, 77
S.Ct. 680, 1 L.Ed.2d 719 (swimming pool); Bynum v. Schiro, E.D.La.,
1963, 219 F.Supp. 204, 209, aff'd, 375 U.S. 395, 84 S.Ct. 452, 11
L.Ed.2d 412 (municipal auditorium) ; Browder v. Gayle, supra at 717
(city bus); New Orleans City Park Improvement Association, 5 Cir.,
1958, 252 F.2d 122, 123 (city park facilities).
22The Court stated that:
There is no evidence that in acquiring federal funds or in
leasing the hospital facility the corporation ever accepted a condi-
tion relating to the performance or non-performance of abortions.
Doe v. Bellin Memorial Hospital, 479 F.2d 756, 761 (7th Cir.
1973). The Parking Authority in Burton, on the other hand, was
specifically obligated to operate in a non-discriminatory manner.
App. 39
BBYC lease by way of city ordinances incorporated there-
in, (see note 10 supra) and Burton had specific provisions
barring racial discrimination, and at the very least the
club had a duty to perform its obligations in accordance
with the terms of the lease.
Part VIII
In wrapping this up some additional comments are ap-
propriate. We understand the majority opinion to hold that
the fact that a private club leases some of the property it
uses from a governmental entity is not enough in itself to
imbue the private club’s discriminatory activities with
“state action.” Whatever the validity of that holding as a
legal proposition, we are convinced that the result reached
by the majority is incorrect, because several unique factors
relating to this particular lease were not properly taken
into account in the majority opinion.
The panel opinion, 521 F.2d 344, as does this dissent,
discussed these special considerations which mandate the
conclusion that “much more is involved than simple owner-
ship and lease” 521 F.2d at 352. This was a lease of water-
bottom land abutting very valuable property—we can take
judicial notice that this lease was worth considerably more
than $1.00, and thus that the financial accommodation
here had the same effect as would a fair market value lease
combined with a large subsidy given from the city to the
club. The lease arrangement between the club and the city
was grounded, pursuant to a state requirement, on a con-
dition that the club would be performing a “public pur-
pose,” viz., providing private dock space which would to
some extent relieve the overcrowded public docks. The city
at one point had recognized, through ordinance, that as
App. 40
trustee of a limited and valuable public resource, it had
an obligation to insure that any private clubs given ex-
clusive access to parts of that resource would not practice
invidious discrimination. The club failed to comply with
that ordinance, although the prohibition of invidious dis-
crimination had been made part of the lease, and the city
refused to enforce the ordinance, despite clear notice of the
violation.
This Court need not decide whether any one of these
considerations, standing alone, would be sufficient to sup-
port a finding of state action. Rather, we need only pass
on whether the cumulation of these considerations develops
an image of “significant state involvement.” For us, all
the facts and circumstances lead to only one conclusion—
the cumulation of the various aspects of the city-club rela-
tionship colors the club’s policies of racial and religious
discrimination with state action. The majority has reached
a different result by failing to consider all the relevant
factors, so today’s opinion should not be read to foreclose a
finding of state action in similar circumstances in the fu-
ture. The “no state action” harbor for the Club’s white
non-jewish yachts is constitutionally unsound, and we
would give them no berth.
The District Court should be AFFIRMED.
App. 41
Harold S. GOLDEN and David Fincher,
Plaintiffs-Appellees,
V.
>
BISCAYNE BAY YACHT CLUB etal.,
Defendants-Appellants.
No. 74-1349.
United States Court of Appeals,
Fifth Circuit
Sept. 26, 1975.
Rehearing En Banc Granted
Nov. 19, 1975.
Before BROWN, Chief Judge, and CULEMAN and
CLARK, Circuit Judges.
JOHN R. BROWN, Chief Judge:
Plaintiffs, Black and Jewish applicants for member-
ship in defendant’s private Biscayne Bay Yacht Club
brought this action pursuant to 42 U.S. C. A. 88 1981,' 1983?
i 1981. Equal rights under the law
All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and en-
force contracts, to sue, be parties, —— — Sera
2 benefit of all laws and proceedings for the security
property as is enjoyed by n
— to like punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other. R.S. § 1977.
25 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, reg-
App. 42
and 2000a' alleging the Club discriminated on the basis of
race and religion in their admission policies. The trial
court“ found a pattern of discrimination had existed and
that it was conducted “under color of law“ because the
Club leased bay bottom land from the city of Miami, Flor-
ida regulated by ordinances that expressly prohibited dis-
ulation, custom, or usage, of any State or Territory, subjects, or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.
R.S. § 1979.
3SUBCHAPTER II.—PUBLIC ACCOMMODATIONS
§ 2000a. Prohibition against discrimination or segregation in
places of public accommodation—Equal access
(a) All persons shall be entitled to the full and equal en-
joyment of the goods, services, facilities, privileges, advant-
ages, and accommodations of any place of public accomoda-
tion, as defined in this section, without discrimination or
segregation on the ground of race, color, religion, or national
origin.
Support by State Action
(d) Discrimination or segregation by an establishment
is supported by State action within the meaning of this sub-
chapter if such discrimination or segregation (1) is carried
on under color of any law, statute, ordinance, or regulation;
or (2) is carried on under color of any custom or usage re-
quired or enforced by officials of the State or political sub-
division thereof; or (3) is required by action of the State or
political subdivision thereof.
Private establishments
(e) The provisions of this subchapter shall not apply to
a private club or other establishment not in fact open to the
public, except to the extent that the facilities of such estab-
lishment are made available to the customers or patrons of an
establishment within the scope of subsection (b) of this sec-
tion. Pub. L. 88-352, Title II. § 201, July 2, 1964, 78 Stat. 243.
Golden v. Biscayne Bay Yacht Club, S.D. Fla. 1973, 370 F.Supp.
1038.
App. 43
crimination for race, religion or national origin’ upon
which to maintain its dock facilities and, such govern-
mental participation constituted sufficient “state action”
to bring the discriminatory conduct within the Fourteenth
Amendment.“ Accordingly, the trial court ordered the club
to cease the practice of denying persons membership in the
Club solely on account of their race or religious affilia-
tions. We agree.
The History
The Club, was organized in 1887 to provide a meeting
place for yachtsmen in early Miami. In 1932, the Club pur-
chased its present club house located adjacent to Biscayne
Bay. In 1962, the City of Miami asserted ownership to the
bay bottom land abutting the Club’s property and since
that time the Club has leased from the City sufficient bay
bottom land to support its docking facilities at an annual
rental of $1.00.
The City acquired the bay bottom lands from the
Trustees of the Internal Improvement Fund of the State
of Florida under deed terms which re. uired that the lands
be used for public purposes only. In 1969 it obtained a
‘Miami, Fla. Code § 38-9, 1 provides:
The lessee of any property of which the city is the owner shall
not discriminate against or refuse or deny to any person or per-
sons, guests or permittees, the use of the facilities leased from the
city because of race, creed, religion, color or national origin.
(Ord.No. 7668, § 1)
Miami, Fla.Code § 38-9.2, sub. § A. 11 states:
There shall be no requirement that applicants for enrollment
be sponsored by anyone as a condition to such applicant being
processed or accepted for membership. (Ord.No. 7668, § 2;
Ord.No. 7682, §§ 1, 2.)
Miami, Fla.Code § 38-9.3 (Ord.No. 7668, § VI, sub. § 3)
The Fourteenth Amendment of the United States Constitution pro-
vides in pertinent part:
No State shall. . deny to any person within its jurisdiction
the equal protection of the laws.
App. 44
waiver from te trustees for its lease to the Club by
asserting that the docks maintained by the Club helped
relieve the shortage of public dock facilities in the city. The
docks are for the exclusive use of Club members and the
general public is prohibited from tying up there or using
the decking. But without the bay bottom land the Club
could not maintain docking or mooring facilities and ac-
cordingly the City’s lease of this land is essential to the
Club’s metion, considering that a yacht club is not much
of one i: members and authorized guests have no means to
anchor, moor or tie up their craft.
Membership in the Club is by sponsorship’ only. The
by-laws of the Club provide for invitation to membership
by three sponsors (members) consisting of a proposer and
two seconders who file with the Club’s secretary a letter
stating the candidate’s qualifications for membership.
After investigation by the Club a vote by secret ballot is
held by the Board of Governors sitting as the Membership
Committee. At least eight members are needed for a
quorum and if any three members of the committee veto
the candidate, the black ball is run up and no invitation
is issued.“ While the by-laws of the Club do not expressly
prohibit membership by members of the Jewish faith or
Black race there are no known past or present Jewish or
Black members except for one honorary Black member, the
Commodore of the Jamaica Yacht Club.
Both Golden and Fincher expressed interest to Club
officials in obtaining applications for membership but
See note 10, infra, and accompanying text.
See Golden v. Biscayne Bay Yacht Club, City of Miami, supra,
at 1041.
App. 45
were informed that they would have to be sponsored by a
Club member to be eligible for membership. As a result of
the Club’s refusal to accept plaintiffs’ applications they
brought suit for declaratory and injunctive relief assert-
ing that the Club’s admission procedure was discrimina-
tory on the basis of race and religion and accordingly
violated the Fourteenth Amendment and the civil rights
statutes.
From a finding by the trial court in favor of the
plaintiffs the Club appeals asserting that, (i) the plain-
tiffs have no standing to challenge the Club’s admission
policies, (ii) the record fails to support the trial court’s
conclusion that the plaintiffs were deprived of their con-
stitutional rights, (iii) that the record fails to support the
trial court’s conclusion that the Club’s membership prac-
tices were discriminatory on the basis of race or religion,
(iv) whether the Club’s leasing of city owned land con-
stituted acts under color of law sufficient to create juris-
diction within the satrapy of Title 42 U.S. C. A. § 1983.
Standing
[1] Fundamentally, Article III of the United States
Constitution requires that the judicial power of the United
States Courts shall extend only to cases or controversies
arising under the Constitution, laws, or treaties of the
United States. This constitutional requirement has been
interpreted by the Supreme Court to mean that the plain-
tiff must assert that the conduct of the defendant has
caused him injury in fact whether economic or otherwise.
See Association of Data Processing Service Organizations,
Inc. v. Camp, 1970, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d
184, In the words of Mr. Justice Marshall in Jenkins v.
App. 46
McKeithen, 1969, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d
404, „[t] he indispensable requirement is, of course, that
the party seeking relief allege ‘such personal stake in the
outcome of the controversy as to assure that concrete ad-
verseness which sharpens the presentation of issues upon
which the Court so largely depends for illumination of
difficult contitutional questions.’” Id. at 423, 89 S.Ct. at
1849. Citing, Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct.
691, 7 L.Ed.2d 663; Flast v. Cohen, 1968, 392 U.S. 83,
88 S.Ct. 1942, 20 L.Ed.2d 947; Joint Anti-Fascist Re-
fugee Committee v. McGrath, 1951, 341 U.S. 123, 71 S.Ct.
624, 95 L.Ed. 817. See also Evers v. Dwyer, 1958, 358 U.S.
202, 79 S.Ct. 178, 3 L.Ed.2d 222.
[2,3] In the case at hand the District Court specifi-
cally found that the plaintiffs had a versonal stake in the
outcome of the litigation. The existing membership policies
they attacked as exhibiting a pattern of discrimination
formed the standards upon which the Club refused to
accept plaintiffs’ applications. More specifically, it is un-
questionable that standing may be based upon an interest
created by the Constitution or a statute. See Parker v.
Fleming, 1947, 329 U.S. 531, 67 S.Ct. 463, 91 L.Ed. 479;
Coleman v. Miller, 1939, 307 U.S. 433, 59 S.Ct. 972, 83
L. Ed. 1385. Here is involved a claim of racial and religious
discrimination which seems clearly to fall within the “zone
of interest” of the statutory language of 42 U.S. C. A. 8
1983.° Thus, we reject out of hand the defendant’s con-
tention that the plaintiffs possess insufficient standing to
assail the membership policies of the Club.
When a statutory remedy is asserted by the plaintiff Courts con-
sider not only the case or controversy test but also whether the interest
sought to be protected by the complainant is within the zone of interest
to be protected or regulated by the statute or constitutional guarantee
in question. See Tennessee Electric Power Co. v. T.V.A., 1939, 306
U.S. 118, 59 S.Ct. 366, L.Ed. 543.
App. 47
The Standard
[4] “Two elements must be proved to recover under
§ 1983 (i) a deprivation of a constitutional right by the
defendant, and (ii) that the defendant, acted under ‘color
of law'.“ See Smith v. Young Men's Christian Association
of Montgomery, 5 Cir., 1972, 462 F.2d 634; accord.
Adickes v. S. H. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct.
1598, 26 L.Ed.2d 142. Because we find that these elements
are satisfied and relief is appropriate under § 1983 we
deem it unnecessary to reach the question of whether the
Club’s admission policies also violated § 1981 and Title II
of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000a.
Acts of Discrimination
[5] The trial court found that admission policies of
the Yacht Club over its long history had fostered a subtle
pattern and practice of discrimination evidenced by the
total lack of minority representation, save one honorary
member who was a citizen of a foreign country. See Golden
v. Biscayne Bay Yacht Club, City of Miami, supra, 370
F.Supp. at 1043. Moreover, the Court found that the
sponsorship requirement, although not egregious on its
face, in practicality operates to exclude Blacks and Jews
from Club membership.“ Id., citing Local 53 of Inter-
national Association of Heat and Frost Insulators and
Asbestos Workers v. Vogler, 5 Cir., 1969, 407 F. 2d 1047;
Ross v. Dyer, 5 Cir., 1963, 312 F. 2d 191.
‘In Adams v. Miami Benevolent Association, Inc., 5 Cir., 1972,
454 F.2d 1315, 1318. we found that a five vote veto clause in the con-
stitution of an organization functioned as a Whites only“ clause even
though the constitution contained no express “Whites only” language.
Similarly, in this case the Judge could find the three vote veto feature
of the Club’s membership procedure was an effective Whites only” pro-
vision, not to mention the sponsorship requirement which had the ef-
fect of perpetuating a membership consisting of persons with similar
background, race and religious preferences.
App. 48
Upon such findings of fact the trial court concluded
that the “plaintiffs had not been afforded the same rights
to membership as their white and Christian counterparts”.
See Golden v. Biscayne Bay Yacht Club, City of Miami,
supra, 370 F.Supp. at 1043. These findings of racial and
religious discrimination are supported by the record and
are well above the Plimsoll line of F.R.Civ.P. 52(a). Cook
& Nichol, Inc. v. Plimsoll Club, 5 Cir., 1971, 451 F.2d 505.
“Under Color Of Law”—The Basis Upon Which Constitu-
tional Restrictions Are Applied To Private Conduct
Entwined With Public Activities
[6-8] We recognize at the outset that the Equal
Protection Clause of the Fourteenth Amendment does not
prohibit the “[i]ndividual invasion of individual rights.”
Civil Rights Cases, 1883, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27
L.Ed. 835, 839. However, it does prohibit state action of
every kind that operates to deny any citizen the equal
protection of the laws. Id. When private enterprises be-
come sufficiently entwined with Government policy or
receive substantial aid and support from governmental
entities they are said to be acting “under color of law”
and consequently are subject to the Constitutional limita-
tions which prohibit discriminatory conduct by the State.
See Gilmore v. City of Montgomery, 1974, 417 U.S. 556, 565,
94 S.Ct. 2416, 41 L.Ed.2d 304; Evans v. Newton, 1966, 382
U.S. 296, 299, 86 S.Ct. 486, 15 L.Ed.2d 373.
This finding is not only sufficient to supply state
action, it is also well armored against attack as clearly
erroneous. Indeed, it draws additional validity from the
type of actionable wrong here involved.
App. 49
Despite its ivy overlay of law, the “state action”
which supplies “color of law” ultimately turns upon re-
solving questions of fact, a resolution to be reviewed here
under the same strictures of Fed.R.Civ.P. 52(a) applied
to the trial court’s finding of discrimination.
„. . . the Court has never attempted to formu-
late ‘an infallible test for determining whether
the State . . has become significantly involved
in private discriminations’ so as to constitute
state action. Reitman v. Mulkey, 387 U.S., at 378,
87 S. Ct., at 1632. Only by sifting facts and
weighing circumstances” [on a case-by-case
basis] can the “nonobvious involvement of the
State in private conduct be attributed its true
significance.“ Id., quoting Burton, 365 U.S., at
722, 81 S.Ct., at 860. This is the task for the Dis-
trict Court... .”
Gilmore v. City of Montgomery, supra, 417 U.S. at 574,
94 S.Ct. at 2427.
Looking to the trial court’s findings as the trier of
the fact we find them amply supported by the evidence in-
cluding uncontradicted circumstances and well grounded
in the articulation of factual emphasis and awareness of
significant legal precedents."
With respect to racial discrimination the Supreme
Court has been unwilling to condone any significant degree
The trier of fact found:
the City of Miami leases publicly owned land to the defendant
Club so that the Club may operate as a yacht club and provide
dockage for its members. 3 the court is not faced with peri-
odic” or incidental use of municipally owned recreational facilities
as in the recent case of Gilmore v. City of Montgomery, 473 F.2d
832 (5th Cir. 1973). Rather, the lease under issue is on a perma-
nent basis and, unlike the facilities in Gilmore, cannot be used by
anyone other than Club members and their guests.
App. 50
of state action in discriminatory conduct by private
parties. See Burton v. Wilmington Parking Authority,
1961, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45; accord,
Reitman v. Mulkey, 1962, 387 U.S. 369, 87 S.Ct. 1627, 18
L.Ed.2d 830. We have but recently taken cognizance of
this in Greco v. Orange Memorial Hospital Corp., 5 Cir.,
1975, 513 F.2d 873 in which the Court found that there
existed no state action in a non-racial discrimination case.
There the plaintiff, a physician, had been prohibited from
performng elective abortions in a hospital operated by a
private charitable corporation but leased from the county,
received tax exemptions, and received some federal fund-
Neither is the court faced with the minimal degree of state
involvement present in the recent Supreme Court’s decision in this
area, Moose Lodge No. 197 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965,
32 L.Ed.2d 627 (1973). In Moose Lodge, the issuance of a liquor
license to the discriminating Club was the only nexus with the
state. No special benefit by reason of the liquor license was af-
forded the Club by the state since, like other state furnished serv-
ices such as police and fire protection, water and electricity the
benefits of a liquor license were potentially available to all state
citizens. Here, however, the defendant Club enjoys a select priv-
ilege not available to each citizen but one coveted by many citizens
in the South Florida area. More critically, the privilege is essential
to the Club’s operation.
The facts of the instant case also differ from the recent de-
cision in Solomon v. The Miami Woman’s Club [359 F.Supp. 41
(S.D. Fla. 1973)], in which this court held that the particular
state lease to a state headquarters did not contain sufficient state
involvement to clothe the patently discriminatory membership
policies of the local private club with the color of state law. In Sol-
omon the court was faced with an arms-length lease entered into by
a municipality far from the location of the local club. Here, the
court is confronted with a lease to defendant of property vital to the
operation of a vacht club. Thus, on the facts of this case, the Court
holds that the “symbiotic relationship” between the state and the
Club exists, thereby making any discriminatory action by the Club
a violation of the Fourteenth Amendment. Burton v. Wilmington
Parking Authority [365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45
(1961) J. By virtue of the lease, the acts of the Club become those
of the state and any deprivation of an individual’s rights by the
Club become a deprivation by the state.
App. 51
ing. In finding no state action the Court emphasized the
distinction’? between the degree of state action necessary
to impose constitutional restraints in cases concerning
racial discrimination" and the higher degree of state in-
12The Court stated that:
The most obvious distinguishing factor is that Orange Memor-
ial Hospital is not accused of racial discrimination. The doctrine of
state action developed primarily in the area of racial discrimina-
tion. See State-Action Theories of 657 and footnote 10, supra. The
concepts developed in this area, explicitly supported by constitu-
tional and legislative mandates, were necessarily broadly drawn
in order to implement Congressional intent in circumstances of
positive and frequent state obfuscation and delay. The potentially
explosive impact of the application of state action concepts de-
signed to ferret out racially discriminatory policies in areas un-
affected by racial considerations has led courts to define more
precisely the applicability of the state action doctrine. See James
v. Pinnix, 495 F.2d 206, 209 (Sth Cir. 1974) and footnotes 10,
supra. See also Brantley v. Union Bk. & Trust Co., 498 F.2d 365
(5th Cir. 1974); Calderon v. United Furniture Co., 505 F.2d 950
(Sth Cir. 1974); Derrington v. Plummer, 240 F.2d 922 (5th Cir.
1956); Blouin v. Loyola, 506 F.2d 20 (Sth Cir. 1975); Grafton
v. Brooklyn Law School, 478 (F.2d 1137, 1142 (2nd Cir. 1973).
Compare, Simkins v. Moses H. Cone Mem. Hosp., 323 F.2d 959
(4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.
2d 659 (1964).
Greco v. Orange Memorial Hospital Corp., supra, at 879.
13See e. g., Powe v. Miles, 2 Cir., 1968, 407 F.2d 73, 82 where Judge
Friendly refused to label a private school a state actor for purposes of
the Due Process Clause but indicated that charges of racial discrimina-
tion would subject the school to constitutional restraints. Likewise, in
Edwards v. Habid, 1968, 130 U.S. App.D.C. 126, 397 F.2d 687, the
Court recognized that arguably private conduct might constitute state
action under the Fourteenth Amendment but not for purposes of the
First Amendment guarantees of freedom of speech.
Commentators have also ized this distinction. See Note, State
Action: Theories For Applying Constitutional Restrictions To Private
Activity, 74 Colum.L.Rev. 656, 657 (1974); Comment, State Action
and The Burger Court, 60 Va.L.Rev. 840 (1974). For more general
discussions of these concepts see Lewis, The Meaning of State Action
60 Colum.L.Rev. 1083, 1093 (1960); Karst & Horowitz, Reitman v.
Mulkey; A Telophase of Substantive Equal Protection, 1967, Sup. Ct.
Rev. 39, 55-58 (1967); Williams, The Twilight of State Action, 41
Texas L.Rev. 347, 378 (1963).
App. 52
volvement which is necessary for private conduct to be
subjected to Fourteenth Amendment sanctions when other
types of constitutional violations have occurred.'* The
Courts’ willingness to find state action more readily in
racial discrimination cases is not hard to explain. After
all, such discrimination was the very condition that pre-
cipitated the enactment of the Fourteenth Amendment."
In cases involving racial discriminaticn courts have
found state action when the nexus between the state and
the private activity is far more attenuated than in Greco."
For example in Norwood v. Harrison, supra, the Su-
preme Court found state action when the Government
merely provided free textbooks to students in a private
segregated school and prohibited even this slight degree
of state assistance unless the schools demonstrated that
racial discrimination did not exist.“
Lack of state action has been more readily determined by the
Courts in areas not involving racial discrimination. See, e.g. Jackson v.
Metropolitan Edison Co., 1974, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d
477 (no state action found to exist in a suit by a customer of a utility
company who asserted the company unconstitutionally terminated his
service); Lloyd Corp. v. Tanner, 1972, 407 U.S. 551, 92 S.Ct. 2219,
33 L.Ed.2d 131 (freedom of speech); Male v. Crossroads Associates,
2 Cir., 1972, 469 F.2d 616; McQueen v. Drucker, 1 Cir., 1971, 438
F.2d 781 (non-racial discrimination cases). See also Burke and Reber,
State Action, Congressional Power and Creditors’ Rights: An Essay On
The Fourteenth Amendment, 47 S.Cal.L.Rev. 1 (1973).
See, e. g., Ex Parte Virginia, 1880, 100 U.S. 339, 344-45, 25 L.Ed.
676; Slaughter-House Cases, 1873, 83 U.S. (16 Wall.) 36, 71, 21 L.Ed.
394. See generally Note, State Action: Theories For Applying Consti-
tutional Restrictions To Private Activity, supra, at 657-58; Comment,
State Action And The Burger Court, supra, at 846.
See e.g., Pitts v. Department of Revenue, E.D.Wis., 1971, 333
F.Supp. 662, where, in a racial discrimination case the Court found
state action in merely granting a tax exemption.
Compare Board of Education v. Allen, 1968, 392 U.S. 236, 88
S.Ct. 1923, 20 L.Ed.2d 1060, where the Coyrt held that the loaning of
t.xtbooks to private school children did not violate the Establishment
(Jause of the First Amendment.
App. 53
[9, 10] We believe, in this context,“ religious dis-
erimination against the Jewish applicant carries the same
stigma of inferiority and badge of opprobrium that is
characteristic of racial diserimination.“ Accordingly, we
apply the well developed standards utilized in the racial
discriminaton setting to both litigants, for the gravity of
harm is exactly the same as to both plaintiffs and there
exists no rational basis for distinguishing between them
by allowing relief as to one while denying it to the other.
The Facts Fit
We do not deal here with a “traditional state monop-
oly” (such as electricity, water, or fire and police protec-
tion) or any “generalized governmental service.” See,
Gilmore v. City of Montgomery, supra. The city’s involve-
ment is both specialized and unique.
[11] It is apparent from the relationship between
the City of Miami and the Club that without the City’s
lease of the bed of the bay the Club could not exist. The
very nature of the Club required that there exist dock and
mooring facilities for the vessels of its members. No show-
ing was made that the City was compelled to grant the
lease. Indeed, the city relied on the Club’s operation of
dock facilities on the leasehold to supply the degree of
“public use” which the state’s grant to the city required.
So much more is involved than simple ownership and lease.
The infringement upon religious freedom in this case is invidious
religious discrimination which is violative of the Equal Protection
Clause of the Fourteenth Amendment, as well as the establishment clause
and free exercise clause of the First Amendment.
19See O'Malley v. Brierley, 3 Cir., 1973, 477 F.2d 785, 795-96; cf.,
ments in the LawW— Equal Protection, 82 Harv.L.Rev. 1065,
1127 (1969).
App. 54
The effectuation of the lease required the mutual coopera-
tion of the city and the Club. Aside from the fact that
the lease was essential to the Club’s function, and the
Club’s function was essential to this “public use” validity
of the lease, the City provided substantial financial aid
to the Club by making the bay bottom land available for
the token rental of $1.00 per year.
So too this Court has held that the leasing of govern-
ment owned property to private entities which discrimi-
nate on the basis of race, is a sufficient nexus between
private and public conduct to establish “state action”.”!
See Wimdish v. Pinellas County, Florida, 5 Cir., 1965, 342
2°On numerous occasions the Supreme Court has expressed its un-
willingness to sanction government monetary aid to private entities
which discriminate on the basis of race. See, e.g., Cooper v. Aaron,
1958, 358 U.S. 1, 19. 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5 where the Court
stated that sI tate support of segregated schools through any arrange-
ment, management, funds, or property cannot be squared with the
| Fourteenth} Amendment’s command that no State shall deny . . . equal
protection of the laws.” See also Norwood v. Harrison, supra, (state
textbook loan to private schools with discriminatory admissions policies
prohibited) ; accord, Coit v. Green, 1971, 404 U.S. 997, 92 S.Ct. 564. 30
L.£d.2d 550; Griffin v. County School Board of Prince Edward County,
1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256; Burton v. Wilming:-
ton Parking Authority, supra. See also, note 21, infra and accompanying
text.
21Similarly, our Court has refused to condone the sale of public
property to private all-white acadamies which discriminate racially.
See Wright v. Baker County Board of Education, 5 Cir., 1974, 501 F.2d
131 (Court rescinded the sale by the School Board of an elementary
school to white parents for the establishment of a segregated school) ;
United States v. S. de of Mississippi, 5 Cir., 1974, 499 F.2d 425 (en
banc) (sublease of public school facility to private segregated school set
aside]; McNeal v. Tate County School District, 5 Cir., 1971, 460 F.2d
568 (Court enjoined discriminatory use of old dilapidated school fa-
cility sold to all-while school); Wright v. Brighton, 5 Cir., 1971, 441
F.2d 447, cert. denied, 404 U.S. 915, 92 S.Ct. 228, 30 L.Ed.2d 190
(Court enjoined sale or lease of public junior high school to segregated
private school).
App. 55
F.2d 804. This position was emphatically endorsed by
Justice White concurring in Gilmore.”
The very same activity—exclusive use of public prop-
erty by private, racially discriminatory entities—which is
occurring here was condemned by the Supreme Court in
Gilmore. More er, this Court’s recent decision in Goodloe
v. Davis, 5 Cir., 514 F.2d 1274 (1975) established that even
nonexclusive use by a private segregated summer baseball
league along with some financial support from the city,
was a sufficient nexus between Government and private
actions to form the basis of a finding of “state action”,
where the effect was to interfere with the District Court’s
desegregation order.
22Justice White stated that:
It may be useful also to emphasize that there is very plainly
state action of some sort involved in the leasing, rental, or extend-
ing the use of scarce city-owned recreation facilities to private
X. or other private groups The facilities belong to the city,
an arm of the State; the decision to lease or otherwise permit the
use of the facilities is deliberately made by the city; and it is fair
to assume that those who enter into these transactions on behalf of
the city know the nature of the use and the character of the group
to whom use is being extended. For Fourteenth Amendment pur-
poses, the question is not whether there is state action, but whether
the conceded action by the city, and hence by the State, is such
that the State must be deemed to have denied the equal protection
of the laws. In other words, by permitting a gated school or
group to use city-owned facilities, has the State furnished such aid
to the group’s ted policies or become so involved in them
then tho State teal exay feisty bo enld to hhove Geaied equal geuteo-
tion? Under Burton v. Wilmington Parking Authority, 365 U.S.
715 [81 S.Ct. 856, 6 L.Ed.2d 45 (1961), it is y clear that
to violate the Equal Protection Clause the State itself need not
make, advise, or authorize the private decision to d scriminate that
i State in the practice of segregation or would appear to
2429.
App. 56
Moose Lodge No. 107 v. Irvis, 1972, 407 U.S. 163, 92
S.Ct. 1965, 32 L.Ed.2d 627, does not stand in the way.”
In Moose Lodge petitioners contended that the local Moose
Lodge discriminated on the basis of race and that such
private conduct was under color of state law because the
state issued the lodge a liquor license. However, the Court
held that this licensing alone was an insufficient nexus
to establish “state action”.
In contrast to Moose Lodge the City of Miami-Bis-
cayne Bay Yacht Club is more akin to the lessor-lessee
relationship found to constitute tate action by the
Supreme Court in Burton v. Wilmington Parking Author-
ity, supra. Indeed, the city fostered the Club’s continued
existence and prosperity by providing a lease essential
to the Club’s operation and by charging a token fee for
the privilege of excluding members of the public from
the beneficial use of public property. Surely, without the
city’s participation the Club could not have existed as a
yacht club. It eould, of course, become a yacht club in
name, landlocked and separated from mooring facilities.
But it could not exist as one in fact. Accordingly the city,
as the arm of the state, was significantly involved in the
private discriminatory activity.?“ Correspondingly, the
Yacht Club served the city by maintaining dockage at its
While some commentators read Moose Lodge to indicate some
reluctance by the Supreme Court to find “state action” in racially dis-
criminatory private club activity, see, Note, State Action: Theories For
Applying Constitutional Restrictions To Private Activity, supra, at 688-
89; Comment, State Action and The Burger Court, supra, at 849-50.
Gilmore indicates that the Court remains unwilling to condone any
significant involvemet by governmental entities in racially discrimina-
tory activity.
The Supreme Court in Gilmore v. City of Montgomery, supra, at
572-74, 94 S.Ct. 2416, distinguished Moose Lodge No. 107 v. Irvis,
supra, in a similar way.
App. 57
private expense which relieved the pressures on the city’s
crowded dock facilities,
The Judicial Tightrope—Equal Protection versus Freedom
of Association
[12,13] We are cognizant that Courts should mini-
mize the extent to which they infringe upon the individ-
ual’s First Amendment right to freedom of association.
Mr. Justice Douglas, dissenting in Moose Lodge, expressed
this well in saying that “[t]he associational rights which
our system honors permit all white, all black, all brown,
and all yellow clubs to be formed. They also permit all
Catholic, all Jewish, or all agnostic clubs to be established.”
407 U.S. at 179-80, 92 S.Ct. at 1974. Nevertheless, that priv-
ate exercise of freedom of association must function with-
out significant state support and involvement. See Gilmore
v. City of Montgomery, supra, 417 U.S. at 575, 94 S. Ct. at
2427. “Invidious discrimination takes its own toll on the
freedom to associate, and it is not subject to affirmative
constitutional protection when it involves state action”. Id.
See also Norwood v. Harrison, supra, 413 U.S. at p. 470,
93 S.Ct. 2804.
Affirmed.
COLEMAN, Circuit Judge (dissenting).
Even the half-alert will quickly grasp what this de-
cision means. So far as I know, or can find out, this is the
first time in the history of American jurisprudence that
a federal court has assumed jurisdiction over the member-
ship policies of a genuinely private club. Since the City
of Miami has absolutely nothing to do with the support,
App. 58
the internal operation, or the membership policies of this
private yacht club and since the club performs no public
function whatever, this decision means that hereafter in
the Fifth Circuit no private club, private individual or
collection of private individuals may lease public property
for private use and be able thereafter to remain private.
If there is a lease there is significant state involvement.
The far reaching consequences of this unprecedented ac-
tion will be discussed in a moment.
Since I remain entirely unconvinced that the Con-
stitution imposes such a restrictive covenant upon purely
private activities, and since I am more than convinced
that the majority opinion conflicts with a prior decision
of this Court rendered less than ninety days ago (Greco
v. Orange Memorial Hospital), I am compelled, however
regretfully, to dissent.
All we have in this case is that the City of Miami
leased the use of the waterbottoms to a lessee which, be-
yond dispute, has been a private club for 88 years. As
already pointed out, the City exercises no control over
the club, it does not participate in its operations in any
form, it has nothing to do with club membership policies.
The club performs no function ordinarily attributable to
the public domain. The lease is the sole nexus between the
club and the city.
The majority opinion attaches much significance to
the fact that without the lease there would be no yacht
club. It is equally true, however, that if the Moose Lodge
had been without a state liquor license it could not have
sold drinks to its members and their guests, Moose Lodge
No. 107 v. Irvis, 1972, 407 U.S. 168, 92 S.Ct. 1965, 32
App. 59
L.Ed.2d 627. The Supreme Court held that the issuance of
the liquor license did not supply the necessary state action.
The significant point was that the state license required
the Lodge to abide by its racially discriminatory constitu-
tion and by-Jaws. That was state action, but there is noth-
ing of that kind in this case.
I think the true rule for situations of this kind was
recently enunciated by the Second Circuit in New York
Jaycees, Inc. v. United States Jaycees, 512 F.2d 856 (1975),
a case which involved grants of federal funds to an orga-
nization which restricted its membership:
Plaintiff concedes, as it must, that private ac-
tion is immune from the restrictions of the Fifth
and Fourteenth Amendments. See, e. g., Shelley
v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed.
1161 (1948); The Civil Rights Cases, 109 U.S.
3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). However, plain-
tiff claims that National’s receipt of federal
funds and tax exemptions, as well as its perform-
ance of civic functions, constitutes state action
sufficient to subject it to scrutiny under the con-
stitutional standard. We disagree.
The mere existence of government ties to a
private organization is not sufficient to support
a finding of state action. Moose Lodge No. 107
v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627
(1972) ; Powe v. Miles, 407 F.2d 73 (2d Cir. 1968).
As this court stated in Powe, “[t]he state must
be involved not simply with some activity of the
institution alleged to have inflicted injury upon
a plaintiff but with the activity that caused the
App. 60
injury.” 407 F.2d at 81. The Supreme Court has
recently reaffirmed the principle that the deter-
mination of state action must be based on a
particularized inquiry focusing on whether there
is “a sufficiently close nexus between the State
and the challenged action of the regulated entity
so that the action of the latter may be fairly
treated as that of the State itself.” Jackson v.
Metropolitan Edison Company, 419 U.S. 345, 351,
95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). In this
case the requisite connection between govern-
ment and the offending activity has not been
shown, Plaintiff does not charge discrimination
in the operation of federally funded Jaycee pro-
grams; indeed such a claim could not be sup-
ported since not only do women participate both
in the selection of local recipients for funding
and in the implementation of programs, but also
the benefits of all federally funded Jaycee pro-
grams are distributed without regard to sex or
other impermissbly discriminatory criteria. Plain-
tiff’s constitutional challenge is addressed solely
to the internal membership, policies of the Jay-
cees; yet plaintiff has made no showing that the
government is substantially, or even minimally,
involved in the adoption or enforcement of these
policies.
App. 61
but the building from the county. Neither the state nor
the county had anything to do with its actual operation.
The hospital refused to permit elective abortions. This
Court held that neither federal financial assistance nor
the lease of the building and grounds supplied the neces-
sary nexus for a finding of state involvement. It was
declared that the federal courts had no jurisdiction.
A hospital to which the general public has access is
a far cry from a private club, which owns its facilities
and performs no public function. But the present major-
ity opinion says that state action is not in what the state
does but is to be determined by who it does it to, that
is, there is one law for a racial or religious complaint and
yet another law for the denial of an abortion which the
state is constitutionally forbidden to deny. I simply can-
not grasp the logic for this kind of judicial picking and
choosing.
To pursue the factual similarities, and dissimilarities,
between Greco and the instant case, the following com-
parison is, I think, of considerable significance:
The Yacht Club Case
I
The Club owns the building and the land upon
I respectfully submit that the majority in this case
signally fails in its efforts to distinguish Greco v. Orange
Memorial Hospital, 5 Cir., 1975, 513 F.2d 873.
In Greco the defendant was a private hospital,
patronized by the public, which leased not only the land
which it is situated and has since 1982.
II
The Club was built and operated with private
funds and iz a private organization.
App. 62
III
Years subsequent to the construction of docks
into and over Biscayne Bay by the Club, the City
laid claim to the bay bottom land in 1962 over
which such docks extended and subsequent there-
to the Club has leased such bay bottom land
beneath such docks for $1.00 per year.
Iv
Under lease the Club assumed no obligation to
the City. j
V
The- City has never directly or indirectly parti-
cipated in the disputed alleged club policy.
The Greco Case
I
The County owns the building and the land upon
which the hospital is situated and has since its
inception.
II
The hospital was constructed with $1,762,000
county funds and $1,250,000 Hill-Burton funds
and is open to the public.
App. 68
III
The hospital leases the land and the building
from the county for $1.00 per year and has since
its inception.
IV
Under lease, the hospital agreed to provide cer-
tain services and operate in a prescribed manner.
V
The County neither directly nor indirectly parti-
cipated in the disputed hospital policy.
From this comparison it can readily be seen that the
relationship existing between the County and Orange Me-
morial Hospital was indeed far closer, far more significant,
of longer standing and far more controlling than the rela-
tionship between the yacht club and the City of Miami.
Despite such substantial involvement and interrelation-
ship, the Greco opinion determined that the necessary
“symbiotic relationship” of state action was lacking and
the necessary nexus between the state’s involvement and
the conduct or policy complained of was absent.
The inescapable end result of the majority opinion is
that a private club which leases any part of its premises
from a public owner thereby loses its private status and
its membership policies will be grist for the courts. As if
we did not already have more to do than we can possibly
perform, judges now become ex-officio managers of the
membership policies of all such private clubs. One wonders
App. 64
what is to become of the heretofore loudly trumpeted con-
stitutionally guaranteed rights of privacy and freedom of
association.
I now take a look at other practical effects of this de-
cision. All around the Gulf of Mexico, the waterbottoms are
publicly owned. They are trust property and cannot be
sold. They can only be leased for a term of years. Under
this decision we say farewell to private yacht clubs, pri-
vate hunting clubs, or any other private club operating on
such property and leased exclusively to a named private
lessee.
But the matter does not stop there. In Mississippi,
for example, there are hundreds of thousands of acres of
Sixteenth Section School land (Northwest Ordinance of
1787). The State cannot sell the land. It can only lease it
for a term of years. It is used for private homes, for farm-
ing, and for numerous other private purposes involving no
public function. Before today it had never occurred to me
that because of the leases the many private activities and
occupations pursued on these lands involve significant state
action.
I would hold that no significant state action is involved
in this private yacht club case. I respectfully dissent.
ON PETITION FOR REHEARING
AND PETITION FOR REHEARING
EN BANC
Before BROWN, Chief Judge, and WISDOM, GEWIN,
BELL, THORNBERRY, COLEMAN, GOLDBERG, AINS-
WORTH, GODBOLD, DYER, MORGAN, CLARK,
RONEY and GEE. Circuit Judges.
App. 65
BY THE COURT:
A member of the Court in active service having re-
quested a poll on the application for rehearing en banc
and a majority of the judges in active service having voted
in favor of granting a rehearing en banc,
It is ordered that the cause shall be reheard by the
Court en banc with oral argument on a date hereafter to
be fixed. The Clerk will specify a briefing schedule for the
filing of supplemental briefs.
HAROLD S. GOLDEN and DAVID FINCHER,
Plaintiffs,
v.
BISCAYNE BAY YACHT CLUB, CITY OF MIAMI,
a political subdivision of the State of Florida, et al.,
Defendants.
No. 72-819-Civ-NCR.
United States District Court,
S. D. Florida,
Miami Division.
Dec. 31, 1973.
ROETTGER, District Judge.
Plaintif, , Harold S. Golden and David Fincher, a
Jew and a Black respectively, brought suit against defend-
ant Biscayne Bay Yacht Club challenging the admission
policies of the Club pursuant to Title 42 U.S.C. sections
1981, 1983 and 2000a. While originally filed as a class
action, the class action allegations were stricken by the
App. 66
court for failure to meet the requisites of Rule 23 of the
Federal Rules of Civil Procedure.
The City of Miami, its mayor and commissioners, have
also been named as defendants by virtue of a city ordinance
prohibiting discrimination by lessees of city-owned prop-
erty.
In addition to evidence received at the trial, the court
viewed the Yacht Club premises with counsel for the parties
and makes the following findings of fact and reaches the
following conclusions of law:
FINDINGS OF FACT
Defendant Biscayne Bay Yacht Club was organized in
1887 to provide a meeting place for yachtsmen in early
Miami.' in 1932, the Club purchased its present clubhouse
located at 2540 South Bayshore Drive, Coconut Grove,
which is adjacent to Biscayne Bay. In 1962, by virtue of
a 1949 deed from The Trustees of the Internal Improve-
ment Fund of the State of Florida, the City of Miami as-
serted ownership to the bay bottom land abutting the Club’s
property and, since that time, the Club has leased this bay
bottom land from the City at an annual rental of $1.00.?
The Club had utilized the bay bottom land previously by
docks extending from the bulkhead line and after 1969
At its inception, the Biscayne Bay Yacht Club was the southern-
most yacht club in the United States. The Club’s flag signifies this
historical fact by bearing the emblem of a large N interlaced with the
figures 25 signifying 25 degree north latitude.
For an interesting account of the early days of the Club, see H.
Muir. Miami, U.S.A. (2d ed. 1963)
2Neither side has raised the issue of whether riparian rights were
vested in the Club prior to 1962.
App. 67
extended the piers. The docks provide for the mooring of
boa for members but the general public is prohibited
from tying up there. This Club is not like a number of
yacht clubs whose docks appear to be a mere appendage to
the club’s social activities and clubhouse. Quite to the con-
trary, this bay bottom land is essential] to the Club’s func-
tioning as a yacht club. Except for the existence of the
lease, the City of Miami has never participated i in or been
involved in the operation of the Club.
In 1969 the City of Miami petitioned the Trustees of
the Internal Improvement Fund of the State of Florida for
a waiver of use restrictions’ limiting the use of the land
“solely for public purposes.” In their waiver of deed re-
strictions, the Trustees allowed construction of the piers
by the Club to “help relieve the accute (sic) shortage of
public dock facilities existing in the City of Miami.” (Em-
phasis that of court).
The City of Miami has enacted certain laws dealing
with the rental of city-owned property. One section of the
Miami City Code prohibits any lessee of city-owned prop-
erty from discriminating against persons on the basis of
race, religion, color or national origin.“ Another provides
that where the lessee is a club, there shall be no requirement
The restriction provides that the land not be used for private
purposes “as distinguished from any public or municipal use or
purpose.”
Miami. Fla. Code § 38-9.1 provides:
The lessee of any property of which the city is the owner shall
not discriminate against - tap exe of the techies eeoed trom the
App. 68
that applicants be sponsored as a condition for club mem-
bership,’ These provisions are incorporated into every lease
between the City and its lessees, including the lease under
consideration.
Membership in the Biscayne Bay Yacht Club is by
sponsorship only. The By-Laws of the Club provide for
invitation to membership by three sponsors consisting of
a proposer and two seconders who file with the Club’s sec-
retary letters stating the candidate’s qualifications for
membership. These letters are accompanied by the can-
didate’s application form which is prepared by one of the
sponsors. The Secretary sends out notices to all members of
the proposal for membership and any member wishing to
do so may write a letter or personally appear before the
membership committee to express his views regarding the
candidate. All such letters are subsequently destroyed.
After “due investigation” required by the Club’s By-
Laws, a vote by secret ballot is held by the Board of Gov-
ernors sitting as the membership committee. At least eight
members are needed for a quorum. If any three members
of the committee veto the candidate, no invitation is issued.
The Club meets the test of being a private club and it cer-
tainly was not formed as a subterfuge to evade the civil
rights laws. Stout v. Y. M. C. A. of Bessemer, Ala., 404
F.2d 687 (5th Cir. 1968); Nesmith v. Y. M. C. A. of Ra-
Miami, Fla. Code § 38-9.2, sub. § A. II states:
There shall be no requirement that applicants for enrollment
be sponsored by anyone as a condition to such applicant being
processed or accepted for membership. (Ord. No. 7668, § 2; Ord.
No 7682, §§ 1, 2.)
.lowever, no evidence was brought before the Court indicating
the City knew the Club’s membership policy was one of sponsor-
ship only and which would have served as a primary reason for
the Court awarding relief against the City.
Miami, Fla. Cod § 38-9.3 (Ord. No. 7668, f VI, sub. 3)
App. 69
leigh, N. C., 397 F.2d 96, 102 (4th Cir. 1968); Wright v.
Cork Club, 315 F.Supp. 1143, 1153 (S.D. Tex. 1970).
Since 1962, the Club has set a maximum membership
of 250. The By-Laws neither expressly prohibit the res-
ence or use of the facilities by guests of members nor do
they expressly forbid membership by members of the Jew-
ish faith or Black race. No known present or past members
of the Club have been either Jewish or Black with the ex-
ception of one honorary Black member, the commodore of
the Jamaica Yacht Club. The Club vigorously asserts it
does not, and has not, engaged in discriminatory practices.
On February 18, 1969, plaintiff Golden sent a letter
to the then commodore of the Biscayne Bay Yacht Club
requesting an application for membership. A response was
sent to plaintiff six days later informing him that mem-
bership was by sponsorship only. On January 14, 1972,
plaintiff Fincher expressed his interest in joining the Club
but was likewise refused. No proposal for membership pur-
suant to the By-Law provisions was ever submitted on
behalf of either plaintiff.
As a result, plaintiffs brought suit for declaratory and
injunctive relief, specifically requesting the court to declare
that defendant Club has violated the Fourteenth Amend-
ment to the United States Constitution and that it be en-
joined from further barring of members on account of race
or religion. The Amended Complaint also requested the
court to enjoin the City of Miami from leasing its land to
the Club until the Club ceased its discriminatory member-
ship policies.
App. 70
CONCLUSIONS OF LAW
Jurisdiction:
The court has jurisdiction of this case under Title 28
U.S.C. sections 2201 and 2202 through the provisions of
Title 28 and section 1343(3) whith gives the court juris-
dictions over violations of Title 42 U.S.C. § 1983 where the
violation occurs under color of state law or authority.
Standing:
[1] Defendant Club argues that plaintiffs cannot
contest the membership policies of the Club since, never
having been proposed for membership, they have suffered
no injury. Both plaintiffs, upon expressing an interest in
joining the Club, were told that there was nothing either
could do without recommendation and this served as a
sufficient rejection to give them the standing o challenge
the membership policies of the defendant Club. See, e. g.,
Solomon v. Miami Woman’s Club et al., 359 F.Supp. 41
(S. D. Fla. 1973).
Color of Law:
[2,3] While the parties have stipulated that defend-
ant is a private club, the fact that a club is private does
not always mean that it is exempted from the operation of
the Civil Rights Act. Title 42 U.S.C. § 2000a; Smith v.
Y.M.C.A. of Montgomery, Inc., 462 F.2d 634 (5th Cir.
1972). Private conduct abridging individual rights does
fall within the prohibitions of the Fourteenth Amendment
when the state to some significant extent has been found
to have become involved in it. Reitman v. Mulkey, 387
U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Burton v.
Wilmington Parking Authority, 365 U.S. 71 81 S.Ct. 856,
6 L.Ed.2d 45 (1961).
App. 71
[4] In this case, the City of Miami leases publicly
owned land to the defendant Club so that the Club may
operate as a yacht club and provide dockage for its mem-
bers. Here, the court is not faced with the “periodic” or inci-
dental use of municipally owned recreational facilities as
in the recent case of Gilmore v. City of Montgomery, 473
F.2d 832 (5th Cir. 1973). Rather, the lease under issue is
on a permanent basis and, unlike the facilities in Gilmore,
cannot be used by anyone other than Club members and
their guests.
Neither is the court faced with the minimal degree of
state involvement present in the recent Supreme Court’s
decision in this area, Moose Lodge No. 107 v. Irvis, 407
U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1973). In Moose
Lodge, the issuance of a liquor license to the discriminating
Club was the only nexus with the State. No special benefit
by reason of the liquor license was afforded the Club by
the state since, like other state furnished services such as
police and fire protection, water and eleet ieity the bene-
fits of a liquor license were potentially available to all state
citizens. Here, however, the defendant Club enjoys a select
privilege not available to each citizen but one coveted by
many citizens in the South Florida area. More critically,
the privilege is essential to the Club’s operation.
The facts of the instant case also differ from the re-
cent decision in Solomon v. The Miami Woman's Club,
supra, in which this court held that the particular state
lease to a state headquarters did not contain suffieient
state involvement to clothe the patently diseriminatory
membership policies of the local private club with the color
of state law. In Solomon the court was faced with an arms-
length lease entered into by a municipality far from the
App. 72
location of the local club. Here, the court is confronted
with a lease to defendant of property vital to the operation
of a yacht club. Thus, on the facts of this case, the Court
holds that the “symbiotic relationship” between the state
and the Club exists, thereby making any discriminatory
action by the Club a violation of the Fourteenth Amend-
ment. Burton v. Wilmington Parking Authority, supra.
By virtue of the lease, the acts of the Club become those
of the state and any deprivation of an individual’s rights
by the Club become a deprivation by the state.
Acts of Discrimination:
The total population of Dade County is 1,267,792’
with 187,500 of that figure Jewish and 189,666’ Black.
With these figures in mind, it taxes credulity that the
defendant Club can state without reservation that it prac-
tices no discrimination and yet, at the same time, is
unable to state whether it has ever had a Black or Jewish
member in its eighty-six years of operation.
[5, 6] Defendant relies on the absence of any ex-
clusionary provision in its By-Laws to support its in-
nocence. Certainly, the inquiry does not end there. Adams
v. Miami Police Benevolent Assn., Inc., 454 F.2d 1315 (5th
Cir. 1972) (whites-only clause not necessary for a finding
of discrimination). Rather, the court holds that when
membership in an established private club is solely by
internal sponsorship and no member has ever been se-
lected out of the large challenging group, then the mem-
bership policies of the organization are suspect. The court
7U.S. Bureau of Census (1970).
Miami Daily News, March 13, 1972.
°U.S. Bureau of Census (1970.
~
App. 73
concludes that plaintiffs have not been afforded the same
rights to membership as their White and Christian
counterparts.
[7] It has been long established that practices and
policies which are facially neutral must be subjected to
scrutiny to determine whether the practices and policies
are discriminatory in operation and effect. Yick Wo. v.
Hopkins, 118 U.S. 356, 6 S.Ct., 1064, 30 L.Ed. 220 (1886).
This principle is embodied in Title VII of the Civil Rights
Act of 1964 so that practices, policies or patterns which
are neutral on their face are condemned if they operate
to segregate and classify on the basis of race. Griggs v.
Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158
(1971); United States v. Jacksonville Terminal Co., 451
F.2d 418 (5th Cir. 1971).
The facially neutral policy before the court is the
sponsorship method of membership in the Biscayne Bay
Yacht Club. While the sponsorship requirement is appli-
cable to Black and White and Jew and Christian alike, in
a club whose members from inception have been only
White and Christian, the effect of the sponsorship require-
ment is to deny Blacks and Jews any meaningful oppor-
tunity for membership. See, e. g. Local 53 of International
Association of Heat and Frost Insulators and Asbestos
Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969) ; Ross v.
Dyer, 312 F.2d 191 (5th Cir. 1963).
The injury suffered by plaintiffs is further
strengthened by factors indigenous to this community.
The court takes judicial notice of the oversupply of boats
App. 74
in the South Florida area in relation to the drastic short-
age of dock space.!“ Indeed, the Trustees of Internal Im-
provement Fund, in speaking of the lease in question,
recognized this as a reason to waive its deed restrictions.
This fact makes even more acute the situation of the boat
owner and enthusiast who, wishing to become a member of
a yacht club for purposes of dockage, is denied member-
ship on the basis of his race or religion.
The acts of defendant, evidenced by a lack of repre-
sentation of these minority groups in its long history, are
social discrimination at best. It is a rejection of minorities
by subtle pattern or practice, one which is difficult to
prove.
Plaintiff Fincher did not appear to the court to be a
boating enthusiast. Plaintiff Golden testified at length
about his boating skills and unequivocally asserted that
the only reason the Club denied him membership is be-
cause he is Jewish; the court does not share Mr. Golden’s
conclusion.
The court can feel some sympathey for the Club
which has been in existence nearly a decade longer than
the City of Miami and which utilized the waters and the
submerged lands abutting this property for thirty years
prior to 1962. However, under the law the court concludes
that in addition to the symbiotic relationship existing be-
tween the Club and the City there is a membership policy
which is discriminatory in operation and effect. There-
upon, it is
«WAS of February of this year, South Florida had a shortage of 1900
boat slips. The Miami Herald, Feb. 15, 1973.
App. 75
Ordered and adjudged as follows:
1. That the policy, practice and custom of defendant
Biscayne Bay Yacht Club in denying membership to the
members of the Jewish religion and Black race is hereby
declared violative of the Fourteenth Amendment to the
United States Constitution.
2. Defendant Biscayne Bay Yacht Club is hereby
ordered to cease the barring of membership to applicants
solely on account of their race or religious affiliations.
Nothing in this opinion is to be construed as indicat-
ing that any traditional quality of membership such as
cordiality, achievement or integrity must be ignored by
the Club: the Club may be discriminating in accepting
members but not for unconstitutional reasons.
3. The City of Miami is dismissed as a defendant.
City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37
L.Ed.2d 109 (1973). The court notes that the City has
adopted a resolution deferring any extension of the lease
with the Club pending this decision.
[8] 4. No evidence being before the court that
defendant City of Miami was aware of the discrimination
practiced by the Biscayne Bay Yacht Club which would
require the City to terminate its lease, and assuming that
defendant Biscayne Bay Yacht Club will comply with the
court’s Order and immediately cease its discriminatory
practices, no relief is appropriate against defendant mayor
or commissioners.
5. Jurisdiction of this case is retained by the court.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.