Appendix — City of New Orleans v. Louisiana Debating & Literary Ass'n

*Lite Dp

94180 5 APR 26 195;

NO.

Supreme Court of the United States

OCTOBER TERM, 1994

THE CITY OF NEW ORLEANS, THE HUMAN

RELATIONS COMMISSION AND

EARL D. JACKSON, SR., IN HIS

OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR

OF THE HUMAN RELATIONS COMMISSION

Petitioner

VERSUS

LOUISIANA DEBATING AND LITERARY

ASSOCIATION, THE STRATFORD CLUB, THE

BOSTON CLUB OF NEW ORLEANS

AND THE PICKWICK CLUB

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

VOLUME II

ANNABELLE H. WALKER

DEPUTY CITY ATTORNEY

LOUISIANA BAR NO. 13166

1300 Perdido Street

City Hall — Room 5E01

New Orleans, LA 70112

(504) 565-6200

x AVIS MARIE RUSSELL

CITY ATTORNEY

LOUISIANA BAR NO. 11546

¢#COUNSEL OF RECORD FOR

PETITIONERS

G

~

Appendix

Item 2 -

Appendix

Item 3 -

i

TABLE OF CONTENTS

Opinion of the U.S. District Court for

the Eastern District of Louisiana... A-42

Chapter 40C of the Code of the City of

We I is i Sewn crake ee A-72

A-42

APPENDIX ITEM - 2

MINUTE ENTRY

McNAMARA, J.

MARCH 10, 1994 FILED

MAR 10 ’94

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LOUISIANA DEBATING * CIVIL ACTION

AND LITERARY

ASSOCIATION, ET AL

VERSUS * NO. 93-658 AND CON-

SOLIDATED CASES

CITY OF NEW ORLEANS, * SECTION “D” (4)

ET AL

Before the court are two Motions for Summary J udg-

ment filed by Plaintiffs. This action involves four con-

solidated cases which contain common questions of both

law and facts. Three Plaintiffs, the Louisiana Debating and

Literary Association (‘Louisiana Club”), the Stratford

Club, and the Boston Club of New Orleans (‘Boston

Club”), join in one of the pending Motions, and the

Pickwick Club, the other Plaintiff in this matter, filed its

own Motion for Summary Judgment. Defendants have fil-

ed memoranda in opposition to both Motions, which are

DATE OF ENTRY MARCH 10 1994

A-43

before the court on briefs only without oral arguments.

I. BACKGROUND

Plaintiffs are a group of private social clubs in the Ci-

ty of Orleans (the ‘“‘City’’), threatened with investigation by

the City pursuant to a City Ordinance which, in part,

regulates membership in clubs satisfying the Ordinance’s

definition of ‘“‘public accommodation.’’ The Ordinance in

question, which is codified at Chapter 40C of the Code of

the City of New Orleans, was enacted on December 19,

1991. Chapter 40C proscribes and criminalizes discrimina-

tion in the membership of clubs meeting the definition of

‘public accommodation”’ if such discrimination is based

upon race, color, creed, religion, national origin, ancestry,

age, sex, sexual orientation, physical condition or

disability.

The Ordinance defines ‘‘public accommodation’”’ to

include any club which (1) has more than 75 members, (2)

provides regular meal service, and (3) regularly receives

payment for dues, fees, use of space, facilities, services,

meals or beverages, directly or indirectly, either (i) from or

on behalf of non-members for or in the direct or indirect fur-

therance of trade or business, or (ii) from or on behalf of any

person who claims such payment as a business expense for

tax purposes. Section 40C-101(2). The Ordinance expressly

exempts from its definition of “‘public accommodation”

any bona fide private club which does not meet the above

referenced definition. Section 40C-101(3)a. Furthermore,

the Ordinance provides that a club is distinctively private

in character and outside the reach of the Ordinance if the

state or federal constitutional doctrines of privacy or

A-44

freedom of association would require that the Ordinance

not be applied against a club. Section 40C-103(b)(2).

Before a club can benefit from this distinctively

private club exception, however, that club must be listed as

such in the registry of the Human Relations Commission

(“HRC”). Before the HRC will certify a club as distinctive-

ly private, the club must complete an application form and

present it to the Director of the HRC, who will then

schedule a public hearing on the club’s application. The ap-

plicant must publish notice of its application and the date

of the hearing in the Official Journal three times, each at its

own expense. At the public hearing, anyone is free to at-

tend and support or oppose the application, and the HRC

and its staff are free to interrogate the applicant’s

representatives without any stated limitations. Ch.

40C-103.

In addition to providing the HRC with the respon-

sibility of conducting public hearings on applications seek-

ing private club status, Chapter 40C also requires the HRC

to investigate complaints of discrimination by members of

the public and to enforce the Ordinance. The HRC has the

power to compel the production of documents and the

testimony of witnesses by issuing subpoenas.

On February 17, 1993, Plaintiff, the Pickwick Club,

received a letter from the HRC notifying it that Clarence

Hunt, a resident of San Francisco, California, had filed a

complaint of discrimination against Plaintiff. The follow-

ing day, on February 18, 1993, the other three Plaintiffs

received a letter from the HRC notifying them that the

HRC would conduct an investigation of Plaintiffs pur-

A-45

suant to a complaint filed with the HRC by the same

Clarence Hunt, alleging discrimination in violation of

Chapter 40C.

Fearing that application of Chapter 40C would un-

constitutionally deprive both them and their members of

their right to privacy and freedom of association, Plaintiffs

filed the present action pursuant to 42 U.S.C. § 1983 seek-

ing: (1) a declaration that Chapter 40C does not apply to the

Plaintiffs, or alternatively, that application of Chapter 40C

to Plaintiffs violates their rights under the United States

Constitution; (2) the issuance of a permanent injunction

prohibiting any investigation by Defendants of Plaintiffs

pursuant to Chapter 40C; and (3) the issuance of a perma-

nent injunction enjoining Defendants from applying or at-

tempting to apply Chapter 40C to Plaintiffs. Plaintiffs also

assert several pendant state law claims.! Arguing that

1 Plaintiffs’ pendant state law claims are:

(1) The Ordinance contravenes a general act and the general policy

of the State of Louisiana and is invalid;

(2) The Ordinance as applied to Plaintiffs exceeds the authority of

Defendants and serves no legitimate public interest of the City;

(3) The Ordinance is an unauthorized local regulation of private or

civil relationships in violation of Article 6, Section 9 of the Loui-

siana Constitution;

(4) Plaintiffs are not public accomodations within the meaning of

the Ordinance;

(5) The enactment of the Ordinance exceeds the authority of the Ci-

ty Council of New Orleans under the City’s Home Rule Charter in

that the Ordinance improperly delegates to the HRC powers

reserved by the Home Rule Charter exclusively to the City Coun-

cil; and

BTS eta Wr ig ot

A-46

there are no genuine issues of material fact and that they

are entitled to judgment as a matter of law, Plaintiffs filed

the present Motions for Summary Judgment.

Defendants’ opposition to the pending Motions is

primarly based on two grounds. First, Defendants argue

that genuine issues of material fact exist, and thus, sum-

mary judgment is improper. Second, Defendants argue

that Plaintiffs’ constitutional claims, which are based upon

their alleged status as private clubs, amount to a facial at-

tack on Chapter 40C. To succeed in a facial challenge,

Defendants correctly point out that the court must find

that the Ordinance cannot be applied in a constitutional

manner. Members of the City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 797-98 (1984). Defen-

dants note that Chapter 40C can be constitutionally ap-

plied to private clubs because the Ordinance affords clubs

the opportunity to raise and to prove their status as a

private club at the public hearing before the HRC. If the

director of the HRC determines that Plaintiffs are indeed

private clubs under prevailing case law, then the Ordinance

expressly exempts Plaintiffs from its reach. Along this

same line, Defendants contend that Chapter 40C can be

constitutionally applied to private clubs because it allows

private clubs to seek admission as such into the registry

and provides for a public hearing before the HRC on the

issue of the applicant club’s status.

footnote 1 continued

(6) The rules promulgated under the Ordinance are inconsistent

with the Ordinance itself, the application of the Ordinance to

Plaintiffs’ conflicts with express terms of both the Ordinance and

such rules, and the Ordinance defines key terms in a manner which

deviates from state and federal law.

A-47

At the outset, the court finds that Plaintiffs are

challenging the Ordinance on constitutional grounds only

as the Ordinance applies to them. Indeed, the prayers for

relief seek a declaration that Chapter 40C does not apply to

Plaintiffs, or alternatively, that application of the Or-

dinance to Plaintiffs violates their rights under the United

States Constitution. The court has found no reference by

Plaintiffs that the Ordinance cannot be constitutionally ap-

plied to anyone. Instead, Plaintiffs specifically assert in

their supporting memoranda that they seek a ruling that

Chapter 40C is invalid as applied to them because they, as

bona fide private clubs, are entitled to First Amendment

protection. See Memorandum of Pickwick Club at p. 3 and

Memorandum of Louisiana Club, Stratford Club, and

Boston Club at pp. 3, 50. Accordingly, this court will

analyze Plaintiffs’ constitutional claims as an ‘‘as applied’”’

challenge to the Ordinance.

II. ANALYSIS

Each Plaintiff club brings this action for itself and on

behalf of its members. At the heart of this matter is Plain-

tiffs’ contention that they are private clubs pursuant to

United States Supreme Court jurisprudence. As private

clubs, Plaintiffs argue that they have a constitutionally

protected right of privacy and freedom of association under

the First Amendment, as applied to the states through the

Fourteenth Amendment. Moreover, Plaintiffs allege that

any application of Chapter 40C to them, including any in-

vestigation of them pursuant thereto, is an unconstitu-

tional infringement on their rights of privacy and freedom

of association. In order to resolve this constitutional issue,

therefore, the court must make two separate inquiries.

A-48

First, whether Plaintiffs are in fact private clubs under

Supreme Court jurisprudence - if not, the court need go no

further. Second, whether the HRC’s investigation into the

complaint of discrimination against Plaintiffs constitutes

unwarranted governmental intrusion into (1) an in-

dividual’s choice to enter into and maintain certain in-

timate or private relationships,? or (2) the right of an in-

dividv’ ‘ not to have his private affairs made public by the

gover nment.3

1. Whether Plaintiffs are Private Clubs:

Concerning a sstate’s attempt to eliminate

discrimination in private organizations, the courts have

consistently recognized that the First Amendment right of

freedom of intimate association provides individuals with a

substantial measure of sanctuary from unjustified state in-

terference into the formation and preservation of certain

kinds of highly personal relationships. Roberts v. United

States Jaycees, 468 U.S. 609, 618 (1984). Because the

Supreme Court has identified a qualitative continuum of

personal relationships, this court must ascertain where

each Plaintiff Club’s ‘‘objective characteristics locate it on

a spectrum from the most intimate to the most attenuated

of personal attachments.” Jd. at 620. Inquiry into Plain-

tiffs’ locale on this continuum of personal relationships,

under the private club exception, involves consideration of

several factors: (1) whether the club has a longstanding

history of serving a purely social, non-business purpose;

2 Board of Directors of Ku:ary International v. Rotary Club of Duarte,

481 U.S. 537, 544 (1987).

3 Whalen v. Roe, 429 US. 589, 599 (1977).

A-49

(2) whether the club has a nexus of common social interest

and congeniality; (3) whether the club has a selective and

exclusive membership criteria; (4) whether the club

secludes its activities and facilities from the public; (5)

whether the club employs restrictive guest policies; (6)

whether the club is conrolled by its members; (7) whether

the club is small in its size and scope; and (8) whether the

club is a nonprofit organization. New York State Club

Ass’n v. City of New York, 487 U.S. 1 (1988); Board of

Directories of Rotary Int'l v. Rotary Club, 481 U.S. 537

(1987); Roberts v. United States Jaycees, 468 U.S. 609

(1984); Daniel v. Paul, 395 U.S. 298, 301-302 (1969); and

Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th Cir.

1993), cert. denied 114 S.Ct. 602 (1993). Upon consideration

of these eight factors, the court concludes that each Plain-

tiff has established that it is a private club located at the

most intimate end of the qualitative continuum of personal

relationships.

A. Purely Social, Non-business Purpose and

History

In Rotary Club, 481 U.S. 537 (1987), the Supreme

Court held that enforcement of California’s anti-

discrimination statute against the Rotary did not violate

the club’s right to freedom of association. In reaching its

conclusion, the Court emphasized that the stated purpose

of the Rotary was to produce an inclusive membership

enabling the club to be a true cross section of the communi-

ty. The Rotary was designed to aid the community and to

improve international relations. Jd. at 546. Thus, the court

noted that Rotary’s ‘‘inclusive fellowship for service based

on diversity of interest, .. . does not suggest the kind of

|

A-50

private or personal relationship to which we have accorded

protection under the First Amendment.” Jd. at 546-47.

In contrast to Rotary, each Plaintiff Club was found-

ed in the 1800’s and has a longstanding history of existing

exclusively for private, social purposes. See Pickwick

Club’s Articles of Incorporation and Mayer, Geary and

| Combe affidavits. The By-Laws of the Pickwick Club reveal

| that it is a “‘private social, literary, cultural and recrea-

| tional club designed to promote the gathering and social in-

| tercourse of friends and family members : . . .” Likewise,

| the charters of the Louisiana, Stratford, and Boston Club

| reveal that they are organized to promote “social inter-

course among members” and to pursue “‘social purposes.”’

See Mayer, Geary and Combe affidavits. Moreover, the

Louisiana, Stratford, and Boston Clubs’ activities are all

private, consisting of noontime meals and certain parties

and dances attended only by their respective members and

their guests. See Mayer, Geary and Combe affidavits,

Depositions of Combe at 50-52, Gilly at 40-41, 48-49,

Hebert at 9-12, Maheu at 33-35, Mayer at 34-36, and Mill-

ing at 27. The Pickwick Club holds social dinners about

once a month which are also limited to its members and

their guests. See Depositions of Johnsen at 25 and Vilkhu

at 20.

In addition to serving purely social functions, each

Plaintiff Club prohibits the transaction or discussion of

any business on their premises. To ensure this, Plaintiffs

prohibit any member or guest from displaying, or offering,

a business card or from displaying business papers on the

respective Club premises at all times. See Mayer, Geary

and Combe affidavits and Depositions of Flower at 15;

A-51

Pickwick Club’s By-Laws and Articles XI § 1. The rule

against conducting business is not just a rule but it is

strictly adhered to by the Club’s members. See Mayer,

Geary and Combe affidavits and Depositions of Bruns at

60, Flower at 34-40, Geary at 72, 108, Janvier at 51, Mayer

at 100, Milling at 42 and Monsted at 43; Depositions of

Vilkhu at 29-32, Flower III at 34-40, Powell III at 65-66.

After reviewing the entire record, this court finds that

there is no genuine factual issue that each Plaintiff Club

has a purely social, non-business purpose and history.

B. Common Social Interest and Congeniality

and Selectivity and Exclusivity in Selection

of Members

In ruling that the Jaycees, a young men’s civic

organization, lacked distinctive characteristics that might

have afforded them constitutional protection in restricting

membership to males only, the court noted “‘[ajpart from

age and sex, neither the national organization nor the local

chapter employ any criteria for judgiag applicants for

membership . .. .”’ In fact, one “‘local officer testified that

he could recall no instance in which an applicant had been

denied membership on any basis other than age or sex.”

Roberts v. United States Jaycees, 468 U.S. 609, 621 (1984).

Likewise, the court found that Rotary did not possess the

kind of private or personal relationship to which it has ac-

corded First Amendment protection, in part, because each

club was instructed to accept all qualified persons, to not

limit the number of members, and to establish a member-

ship growth pattern. Rotary Club, 481 U.S. 537, 547 (1987).

Unlike the Jaycees and Rotary, Plaintiffs’ members

A-52

share similar social interests and backgrounds, and often-

times, their relationships pre-date membership in the Club

through family, church, or other social groups. See Mayer,

Geary and Combe affidavits and Depositions of Geary at

20, Gilly at 74, and Mayer at 30; and Johnsen affidavit at

3. The Pickwick Club selects its members based upon

familial relationships, social acquaintances, congeniality,

and compatibility. See Johnsen affidavit and Depositions

of Kock III at 38 and Flower III at 33-47. Similarly, the

Louisiana, Stratford, and Boston Clubs select their

members based upon character, honesty, integrity, com-

patibility, and most importantly, congeniality among the

members. See Mayer, Geary and Combe affidavits and

Deposition of Gilly at 58. Therefore, there is a close nexus

between the stated purpose of Plaintiff Clubs and their

criteria for membership.

In addition to this close nexus between the Clubs’

purposes and membership criteria, each Club employs an

extremely restrictive membership policy. Indeed, new

members are proposed only by the existing members and

neither Club allows an individual to “apply” for member-

ship. See Pickwick Club’s By-Laws, Art. 1 § 2; Mayer,

Geary and Combe affidavits. After a proposal for member-

ship has been made, the respective Club begins a fairly

rigorous screening process to ascertain whether the pro-

spective member meets the selective criteria of the respec-

tive Club. If the proposed member passes the screening

process, the general membership is then given the oppor-

tunity to approve or disapprove of the proposed member.

The general membership may reject admission for any pro-

posed member by registering the requisite number of objec-

tions as required under the respective Clubs’ By-Laws; for

A-53

the Pickwick Club, three objections suffice; five objections

suffice for the Boston Club; and for the Louisiana and

Stratford Club, three objections prevent admission. See

Pickwick Club’s By-Laws, Art. I § 2 and Mayer, Geary and

Combe affidavits. Many proposed members are not elected

or approved for membership. Thus, Plaintiff Clubs employ

a highly selective membership policy.

C. Seclusion of Activities and Facilities from

the Public

The Louisiana, Stratford, and Boston Clubs have on-

ly one facility each, and they are maintained for the ex-

clusive use of members and, in limited instances, their

guests. These facilities are never open to the public and

there are no outward signs identifying their locations. The

Clubs strictly prohibit non-members from using their

facilities. See Mayer, Geary and Combe affidavits. The

rules, current membership lists and activities of the Loui-

siana, Stratford, and Boston Clubs are completely private

and outside the public’s view. The Boston and Stratford

Clubs have written rules prohibiting public statements or

photographs relating to the Clubs’ appearance, By-Laws,

social functions or members. The Louisiana Club requires

that each of its members pledge that its rules and activities

will remain confidential. See Mayer, Geary and Combe

affidavits.

Similarly, the Pickwick Club has only one facility

and it owns the building in which its meeting rooms are

located. There are no signs identifying its location. The

Club’s door is unmarked and locked twenty-four hours a

day. Members enter the Club through use of a numbered

anemnen

A-54

key pad whose entry code is changed regularly. See

Johnsen’s affidavit. The Pickwick Club is not open to the

public and it does not lease its facilities to non-members

under any circumstances. In short, the Pickwick Club’s

facilities are used only by its members and their guests.

While the Rotary Clubs sought to keep their ‘‘windows and

doors open to the whole world,” Rotary Club, 481 U.S. at

547, each Plaintiff Club “bars its doors and has virtually no

windows.” Pacific-Union Club v. Superior Court, 283 Cal.

Rptr. 287, 295 (Cal. App. 1st Dist. 1991). Thus, this court

finds that Plaintiff Clubs’ activities and facilities are

secluded from the public.

D. Restrictive Guest Policies

The Louisiana Club outright prohibits its members

from bringing or inviting any male guests, residents or

non-residents, to the Club at any time and under any cir-

cumstance. On very rare, specially designated occasions,

its members may invite female guests who are, on most in-

stances, their wives. See Geary affidavit and Deposition of

Gilly at 65. The Boston and Stratford Clubs prohibit male

residents of the City from being guests. On extraordinary

occasions, however, they do allow women and children

residents to be guests while accompanied by a member. See

Mayer and Combe affidavits and Depositions of Combe at

52 and Mayer at 36. Non-resident males may be guests

under conditions strictly limiting the time, frequency, and

occasion of the visit. No guests are permitted to bring

other guests and no guests are allowed to attend any Club

meeting. All non-resident guests must be a personal friend

or close relative of the introducing member, who must

believe that the guest will be welcomed by the other

A-55

members. See Mayer and Combe affidavits and Deposition

of Gilly at 29-32.

The Pickwick Club allows its members to bring non-

resident males as guests to dine during the noonday meals

provided such guests are personal friends or close relatives

of the members who have some basis for a social acquain-

tance with the other members. See Johnsen’s affidavit and

By-Laws, Art. XI § 1. Ladies are allowed as guests on in-

vitation of the Board of Governors or on invitation of a

member on such occasion and at such times as the Board

of Governors determines. See By-Laws, Art. XI § 2. Only

on rare occasion may resident males be admitted as guests

and only then by invitation of the Board of Governors. See

By-Laws, Art. XI § 3. Clearly, Plaintiff Clubs have definite

rules on permitting guests and all point to a highly restric-

tive guest policy.

E. Membership Control

The Louisiana, Stratford and Boston Clubs are com-

prised of governing boards, committees, and memberships

at large who meet on a regular basis in order to manage and

govern the Clubs’ affairs. Although the respective govern-

ing boards are responsible for the overall management

duties, the members-at-large elect these boards, and

therefore, the members directly control the management

and operation of these Clubs. See Mayer, Geary and Combe

affidavits and Deposition of Gilly at 56-60. Similarly, as

demonstrated through its Articles of Incorporation and its

By-Laws, the Pickwick Club’s policies are determined only

by its members and by its elected Board of Governors. See

Articles of Incorporation, Art. V § 2; By-Lays, Art. VI §§

a ee i ee Se ee a

A-56

1, 2; and Deposition of Johnsen at 10. Based upon the un-

contradicted evidence contained in the record, this court

finds that Plaintiff Clubs are managed and controlled sole-

ly by their respective members.

F. Small in Size and Scope and Not-for-Profit

In denying the Jaycees First Amendment protection,

the Supreme Court noted that the Jaycees had 295,000 na-

tional members in 7,400 local chapters. The J aycees’ policy

making authority was vested in a national board consisting

of delegates from local chapters. Roberts, 468 U.S. at 613.

Likewise, in denying First Amendment protection to the

Rotary Club, the Court noted that Rotary International

had about 900,000 members, including 19,788 local clubs in

157 countries. Rotary Club, 481 U.S. at 539-40, 46.

In stark contrast, the Pickwick Club limits its

regular membership to 550 persons. See Pickwick Club’s

By-Laws, Art. 1 & 11(a). The Pickwick Club has no connec-

tion with a larger institution or club. See Deposition of

Johnsen at 50. The Louisiana Club caps the number of its

resident members at 325, the Stratford Club at 350, and

the Boston Club at 600. The Boston and Stratford Clubs

also allow a limited number of non-resident and life

members. The Louisiana Club extends non-resident

memberships only to resident members who subsequently

move away. See Mayer, Geary and Combe affidavits and

Depositions of Bruns at 27, Deal at 30, 69, Gilly at 43, 67,

Mayer at 31-32, and Maheu at 37-38. Like the Pickwick

Club, neither the Louisiana, Stratford, nor the Boston Club

is a member of any national association and none are part

of any umbrella organization.

A-57

In considering the size of Plaintiff Clubs pursuant to

the private club exception, this court is aware that the

Seventh Circuit recently held that the Boy Scouts was a

private club even though it had 5,000,000 members. Welsh

v. Boy Scouts of America, 993 F.2d 1267, 1277 (7th Cir.

1993), cert. denied 114 S.Ct. 602 (1993). The Welsh court

reasoned that, despite its millions of members, the Boy

Scouts met the Supreme Court’s requirements that there

be a “‘plan or purpose of exclusiveness.”’ Jd. at 1276 (cita-

tion omitted). As demonstrated above, Plaintiff Clubs

employ a highly selective membership criteria which en-

sures exclusiveness. Furthermore, this court finds that a

club with 600 or fewer resident members, in such a large

and diverse area as metropolitan New Orleans, is sufficient-

ly intimate to warrant First Amendment protection.

An organization’s status as for profit would tend to

indicate it has a commercial rather than social purpose,

which would weigh against affording a club with First

Amendment protection. Daniel v. Paul, 395 U.S. 298,

301-302 (1969). Such is not the case with Plaintiff Clubs,

however, as each is a not-for-profit Louisiana Corporation.

See Pickwick Club’s Articles of Incorporation, Art. I §$§ 1,

2, and 3, and Mayer, Geary and Combe affidavits. After

reviewing the record and finding that every factor used in

determining private club status weighs in favor of Plaintiff

Clubs, this court concludes that there is no genuine factual

issue that each Plaintiff Club is & ‘‘private club”’ entitled to

stringent First Amendment protection.

Defendants argue that summary judgment is im-

proper because genuine issues of material fact exist concer-

ning whether or not Plaintiffs are ‘‘private clubs.’’ The

A-58

court finds no evidence in the record to support Defen-

dants’ argument or to refute the evidence presented by

Plaintiffs. Defendants first question whether Plaintiffs

have shown themselves to have a purely social, non-

business purpose and history because several officers of

Whitney National Bank testified that, in times past, the

bank, as a perk, reimbursed its officers for their club

membership dues. This court has found no cases sug-

gesting that reimbursement, as a perk, for dues in a

‘private club” has any bearing on that club’s status. See

Deposition of Milling at 20. Moreover, each bank officer

testified that he had never conducted or discussed business

at any of the Clubs, nor had he taken guests there for

business purposes. See Depositions of Milling at 42-43,

Mayer at 100, Bruns at 60, Janvier at 51 and Monsted at

43. Thus, there is no genuine issue concerning the purely

social, non-business purpose of Plaintiff Clubs.

Defendants also argue that there is a genuine issue

concerning the size of Plaintiffs because the exact member-

ship numbers are not known. As this court has discussed

above, more important than the number of members is how

selective the club is in accepting its members. Welsh, 993

4 The record reveals that the parties had more than six months to con-

duct discovery. Three of the Complaints herein were filed on February

25, 1993, and the fourth Complaint was filed on March 2, 1993. By way

of mutual agreement, the parties had until September 3, 1993 to finish

all discovery. See Document No. 36. On August 23, 1993, Defendants

sought a three week extension to conduct discovery because the City

was under a four day work week and because there was not enough time

to file a Motion to Compel before September 3, 1994. The court denied

the Motion to Continue Discovery Deadlines finding that the stated

reasons did not warrant a continuance. Subsequently, Defendants did

timely file a Motion to Compel which was granted in part. See

Documents No. 85 and 99.

A-59

F.2d at 1276. Contrary to Defendants’ assertion, the record

reveals that the Louisiana Club has 317 resident members

and a total of 423. See Geary affidavit and Deposition of

Maheu at 37. The Boston Club has 600 resident members

and a limit of 400 non-resident members. See Deposition of

Deal at 30. The Stratford Club has 333 resident members

and a limited number of non-resident members. See Combe

affidavit. Lastly, the Pickwick Club limits its membership

to 550 persons. Thus, Defendants have failed to raise a ge-

nuine issue of material fact concerning the status of any

Plaintiff Club, and this court finds that each Plaintiff is a

“private club.”

2. Whether the City can Validly Apply Chapter 40-C to

Plaintiffs:

Unquestionably, the First Amendment right to

freedom of intimate association shields individuals from

unjustified state interference into the formation and

preservation of certain kinds of highly personal relation-

ships. Roberts, 468 U.S. at 618. Because the Supreme

Court has identified a qualitative continuum of personal

relationships, there necessarily exists a broad range of

human relationships that may be permitted to make

greater or lessor claims to First Amendment protection

from particular state infringements. “‘Determining the

limits of state authority over an individual’s freedom to

enter into a particular association therefore unavoidably

entails a careful assessment of where that relationship’s ob-

jective characteristics |determined by applying the factors

discussed above] locate it on a spectrum from the most in-

timate to the most attenuated of personal attachments.”

Id. at 620. Because Plaintiff Clubs easily met every factor

in determining private club status and because they have

very selective membership policies designed to ensure com-

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radery and close personal acquaintances, this court finds

that Plaintiff Clubs are entitled to the fullest protection of

the first Amendment’s right to privacy and freedom of in-

timate association.

The First Amendment, in providing for a constitu-

tionally protected zone of privacy, recognizes at least two

kinds of important interests. One is an individual’s choice

to enter into and maintain certain intimate human relation-

ships without undue intrusion by the State because of the

role such relationships play in safeguarding the individual

freedom that is the cornerstone of our constitutioinal

scheme. Roberts, 468 U.S. at 617-618. This freedom of

association is a fundamental right. Jd. Another interest

protected by the First Amendment is the right of an in-

dividual not to have his private affairs made public by the

government. Whalen v. Roe, 429 U.S. 589, 599 n. 24. The

question this court must now address is whether the

HRC’s proposed investigation into the complaints of

discrimination by Plaintiff Clubs will unduly infringe on

their rights to freedom of association and their rights not

to have their private affairs made public by the govern-

ment. Finding that this question must be answered in the

affirmative, the court declares that Chapter 40-C cannot be

constitutionally applied to Plaintiffs.

Defendants argue that Chapter 40-C can be constitu-

tionally applied to Plaintiffs because the City has a com-

pelling interest in eradicating invidious discrimination

against its citizens and because Plaintiffs are free to assert

their “‘private club” status during the administrative hear-

ings before the HRC. The court agrees that the City has a

compelling interest in preventing discrimination. The court

finds, however, that the HRC’s threatened investigation of

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Plaintiffs, including public hearings coupled with the in-

evitable attendant publicity, would unduly burden Plain-

tiffs’ First Amendment rights.

In N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958), the

court held that First Amendment rights of privacy and

freedom of association prevented the state from obtaining

a membership list of the N.A.A.C.P. during the course of

the state’s investigation, In reaching this conclusion, the

court emphasized:

This court has recognized the vital relationship

between freedom to associate and privacy in one’s

associations ....

We think that the production order, in the

respects here drawn in question, must be regard-

ed as entailing the likelihood of a substantial

restraint upon the exercise by petitioner’s

members of their right to freedom of association

We hold that the immunity from state scrutiny of

membership lists which the association claims on

behalf of its members is here so related to the

right of the members to pursue their lawful

private interests privately and to associate freely

with others in so doing as to come within the pro-

tection of the Fourteenth Amendment... .

Id. at 462, 466. As the N.A.A.C.P. case demonstrates,

governmental investigation into purely private affairs

oftentimes has a chilling affect on First Amendment rights

that is as devastating, if not more so, than the final state

Reg IRE te Sra rane er reat lerter ce

2) Se OO 2 ala SORT aR MRA TEAS

PS a ac.

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action taken after the investigation.

Moreover, Plaintiff Clubs have established that

there is a reasonable probability that the HRC’s investiga-

tion into the complaints of discrimination would publicly

reveal its membership lists and other intimate aspects of

Plaintiff Clubs that would have a chilling affect on their

members’ First Amendment rights. Chapter 40C created

the HRC to investigate complaints of discrimination by

members of the public and to enforce the Ordinance by im-

posing certain penalties. The HRC’s investigative powers

include the right to compel production of documents and

testimony of witnesess at a public hearing. J udging from

Defendants’ First Request for Production of Documents,

the breadth of the testimony and documents likely to be

sought during the public hearings by the HRC is far-

reaching and certainly contains private and sensitive Club

matters deserving of constitutional protection.

For example, in this lawsuit, Defendants have

sought production of the current membership lists of Plain-

tiffs and production of any rosters of officers and commit-

tee members including membership committee members

and life members. Defendants also requested complete

copies of all tax returns from 1988 through 1992 filed by

each member of Plaintiff Clubs. Furthermore, Defendants

sought to obtain a list and copy of all documents announc-

ing and/or describing all events held at the Clubs after

1988. Thus, it is evident to this court that application of

Chapter 40C to these Plaintiff Clubs expose them to HRC

orders that they go back in time, at least until 1988, and

publicly reveal in detail the names of every member and

every officer, the internal rules and policies of the Clubs,

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copies of each member’s tax returns, and complete descrip-

tions of every Club activity. Administrative application of

Chapter 40C to clubs that have clearly established their

status as ‘‘private clubs”’ located at the most intimate and

of the continuum of personal relationships violates their

First Amendment rights to privacy and freedom of in-

timate association.

The court notes that the Clubs’ members have

similar social interests and backgrcunds and many have

longtanding friendships among themselves. Oftentimes,

their relationships were originally formed through family,

church, or school functions. Moreover, criteria for member-

ship includes character, honesty, integrity, congeniality

and compatibility with existing members. Because of these

intimate, family-like relationships among members, it is

likely that members carry on activities at the Clubs in

much the same way that they do at their homes. If the

government can force Plaintiff members to publicly reveal

these types of activities, then the First Amendment would

have no utility. Clearly, the First Amendment provides in-

dividuals with definite and important rights, and exposing

these private club members to revelation of these types of

activities, along with members’ tax returns and member-

ship lists, violate the rights of these individuals not to have

their private affairs made public by the government.

Whalen, 429 U.S. at 599 n. 24.

Defendants note that Chapter 40C-103 sets forth a

procedure by which a club may apply for and obtain

designation as a “‘distinctively private’’ club. Upon receip*

of aclub’s application to be placed in the registry of private

clubs, the HRC assigns a date and time for public hearings

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to be held. This hearing will again subject Plaintiff Clubs

to the same inquiry of private and sensitive information as

discussed above. The applicant must publish notice of the

application and hearing three times in the Official Journal,

all at the applicant’s expense. Any interested person may

appear at the public hearing to oppose the application.

Chapter 40C-103(d). If the HRC designates a club as

“distinctively private,” such designation is valid for only

three years. Chapter 40C-103(a). Even during this three-

year period, however, the HRC can initiate proceedings for

the removal of any club from the registry. The HRC can in-

itiate these removal proceedings sua sponte or upon receipt

of a written complaint. The HRC then publishes notice of

the removal hearing and any interested person can attend

the hearing and support the complaint. Chapter 40C-103(g).

As applied to Plaintiff Clubs, Chapter 40C-103 envisions

unwarranted future and repeated regulations of clubs

deserving of the highest First Amendment protection.

The members of these private clubs have the right to

be free from Government prying into their private affairs.

To expose the individual members of these clubs to the

hearing contemplated in Section 40C-53 is to subordinate

their rights to governmental curiosity about their private

affairs. The First Amendment does not permit such

governmental intrusion. There is no question that ending

public discrimination is a laudable goal and that invidious

discrimination in any form is reprehensible. However,

[w]hen the state intrudes into the membership

policies of private clubs, it abridges the rights of

club members to socialize with people of their own

choosing.... Unless the state acts to serve a com-

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pelling interest unrelated to furthering its vision

of socially acceptable behavior, it is simply press-

ing club members into service to send society a

message of inclusion and equality.... [T]he first

amendment protects associational choices, as it

protects expression, from governmental efforts to

establish an official view of a just society...

Protecting the right of some social clubs to

discriminate in selecting their members is the

constitutional embodiment of the common sense

that underlies the traditional respect accorded

distinctively private groups. Private discrimina-

tion should be permitted when the value of pro-

viding equal access is outweighed by the damage

to associational freedom: as to certain private

social groups, forcing equal access ‘‘costs much in

liberty and returns little in equity.”

Note, State Power and Discrimination by Private Clubs:

First Amendment Protection for Non-expressive Associa-

tions, 104 Harv. L.Rev. 1835, at 1850 and 1856 (1991).

Moreover, Plaintiff Clubs have clearly established in

this forum their right to First Amendment protection by

demonstrating that they are located at the most intimate

end of the continuum of personal relationships. Because

Defendants’ application of Chapter 40C to Plaintiffs would

unduly interfere with their right to enter into and maintain

certain intimate or private relationships and their right not

to have their private affairs made public by the govern-

ment, this court finds that Chapter 40C is unconstitutional

as applied to these Plaintiff Clubs. As our Supreme Court

has noted:

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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. Government may not tell a man or a

woman who his or her associates must be. The in-

dividual can be as selective as he desires.

See Gilmore v. City of Montgomery, 417 U.S. 556 (1974)

quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179-80

(1972) (Douglas, J. dissenting).

III. PENDANT STATE LAW CLAIMS

In addition to challenging the Ordinance on constit.u-

tional grounds, Plaintiffs also assert several pendant state

law claims.5 After reviewing the memoranda of counsel

and the pendant state law claims, the court notes that only

one such pendant claim was briefed by the parties and it,

like several of the pendant claims, involves a facial attack

on the Ordinance. For example, Plaintiffs argue that the

Ordinance in question contravenes a general act and the

general policy of the State of Louisiana and is therefore in-

valid. To support this argument, Plaintiffs note that La.

R.S. 51:2231(A) created the Louisiana Commission on

Human Rights and permitted local governments to create

their own local human rights commissions with certain

restrictions. One such restriction is that the local commis-

sions must carry out only the policies contained in the

enabling statute and the Civil Rights Act of 1964. La. R.S.

51:2237(1). Plaintiffs argue that one such policy is the

5 Fora description of the pendant state law claims, see footnote 1 supra,

and accompanying text.

iii

A-67

State’s definition of what constitutes a “public accom-

modation’’, as opposed to a bona fide private club which is

not subject to the proscription against discrimination. As

shown below, the state’s policy as reflected in its definition

of ‘‘public accommodation” is significantly different from

and is in conflict with the definition contained in the City

Ordinance in question.

Louisiana has defined ‘‘discriminatory practice’ as

an act of differentiation in the treatment of a person

because of race, creed, color, religion, sex, age or natural i

origin. La. R.S. 51:2232(3). Furthermore, the state has

declared that a ‘Place of public accommodation” means:

any place, store, or other establishment, either

licensed or unlicensed, which supplies goods or

services to the general public or which solicits or

accepts the patronage or trade of the general

public, or which is supported directly or indirectly

by government funds. However, a bona fide

private club is not a place of public accommoda-

tion, resort, or amusement if its policies are deter-

mined solely by its members and its services are

available only to its members and their bona fide

guests.

La. R.S. 51:2232(10) (emphasis added). Thus, Plaintiffs

argue that the Ordinance is invalid because its stringent

private club exception conflicts with the stated policy of

the State, which is to exclude from coverage any private

club so long as its policies are determined solely by its

members and its facilities are available only to its members

and their guests.

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While the court believes that this ‘“‘supersession’’

argument may well have merit, the court declines to decide

this or any other pendant claim because the court has

already found that the Ordinance cannot be constitutional-

ly applied to these Plaintiff Clubs. Moreover, the court

thinks that it would be imprudent to address any pendant

state law claim because the parties only briefed one such

claim and because the court believes that it should first

decide an “‘as applied’”’ challenge, and only if that challenge

fails should the court decide a much broader facial

challenge. Moore v. City of Kilgore, Texas, 877 F.2d 364,

390 (5th Cir. 1989). As Plaintiffs were successful in their

“as applied” constitutional challenge to the Ordinance, the

court will not address the pendant state law claims, which

are mostly facial challenges to the Ordinance.

IV. PERMANENT INJUNCTIONS

Plaintiffs seek, in addition to a declaration that

Chapter 40C cannot be constitutionally applied to them, a

permanent injunction (1) prohibiting Defendants from in-

vestigating any complaint of discrimination against any

Plaintiff pursuant to Chapter 40C and (2) prohibiting

Defendants from applying or attempting to apply Chapter

40C in any way to Plaintiffs. Defendants advance three

main reasons why Plaintiffs are not entitled to permanent

injunctive relief from the Ordinance. First, Defendants

argue that genuine issues of material fact remain, but for

the reasons stated above in Part II, this court finds this

argument unpersuasive. Second, Defendants argue that a

permanent injunction should not issue because Plaintiffs

are bringing a facial challenge to the Ordinance and have

not proven that the Ordinance could never be applied in a

A-69

constitutional manner. Likewise, the court has already re-

jected this argument and found that Plaintiffs are challeng-

ing this Ordinance on constitutional grounds only as it ap-

plies to them. Lastly, Defendants suggest that ‘‘any per-

manent injunction order would not be meaningful since

Plaintiffs’ corporate organizations, questionable overall

membership sizes, and the location and layout of their

facilities are capable of undergoing changes that could

render them subject to some future application of Chapter

40C.”’ See Memorandum in Opposition to Motion for Sum-

mary Judgment of the Boston, Louisiana and Stratford

clubs at pp. 3-4. While this court agrees that it is con-

ceivable that Plaintiff Clubs could undergo organizational

changes that would cause them to come within the lawful

reach of Chapter 40C, the court does not find that this is

sufficient to prevent the issuance of a permanent injunc-

tion because a permanent injunction is not impervious to

change.

Indeed, the prospective features of a permanent in-

junction are subject to vacation or modification if war-

ranted by equitable principles in light of the change in cir-

cumstances. This principle is codified in Rule 60(b)(5) which

provides for relief from a final judgment if ‘‘it is no longer

equitable that the judgment should have prospective

application.’”6

VI. CONCLUSION

Each Plaintiff Club has clearly demonstrated that it

is a private club located at the most intimate end of the

6 For a discussion on the duration and modification of final injunctions,

see 7 Moore’s Federal Practice § 65.08.

:

A-70

qualitative continuum of personal relationships. As such,

Plaintiffs have a First Amendment right to enter into and

maintain certain intimate human relationships without un-

due state intrusion and a right not to have their private af-

fairs made public by the government. Moreover, Plaintiffs

have established a substantial likelihood that Defendants’

application of Chapter 40C to Plaintiffs would expose them

to public revelation of their membership lists, their

members’ tax returns, and complete descriptions of all club

activities, which would ultimately have a chilling effect on

their members’ First Amendment rights. After reviewing

the entire record, including the arguments of counsel, the

court finds that Defendait should be permanently enjoined

from investigating any complaints of discrimination

against Plaintiffs pursuant to Chapter 40C and from apply-

ing or attempting to apply Chapter 40C tw plaintiffs in any

way because Defendants’ application of the Ordinance to

Plaintiffs, including public hearings where private and sen-

sitive information will be sought, coupled with the in-

evitable attendant publicity, would unduly burden Plain-

tiffs’ First Amendment rights. Accordingly,

IT IS ORDERED that the Motions for Summary

Judgment filed by Plaintiffs, the Louisiana Debating and

Literary Association, the Stratford Club, the Boston Club

of New Orleans, and the Pickwick Club, be and are herby

GRANTED, DECLARING that application of Chapter

40C of the Code of the City of New Orleans to Plaintiffs

violates their rights under the United States Constitution.

IT IS FURTHER ORDERED that Defendants,

their officers, officials, agents, employees, and successors

be and are herby PERMANENTLY ENJOINED from in-

a i

A-71

vestigating any complaint of discrimination against the

Louisiana Debating and Literary Association, the Strat-

ford Club, the Boston Club of New Orleans, and the

Pickwick Club pursuant to Chapter 40C of the Code of the

City of New Orleans, and from applying or attempting to

apply Chapter 40C of the Code of the City of New Orleans

in anyway to the Louisiana Debating and Literary Associa-

tion, the Stratford Club, the Boston Club of New Orleans,

and the Pickwick Club.

IT IS FURTHER ORDERED that any of the parties

hereto may apply for other or further action or relief, and

this court hereby RETAINS JURISDICTION of this mat-

ter for the purpose of any order or direction or modification

of this decree, or any supplemental decree that it may deem

at any time to be proper in relation to the subject matter

in controversy herein.

* * * * & *

A-72

APPENDIX ITEM 3

Pgs. 562.107 - 562-140

CHAPTER 40C

NEW ORLEANS HUMAN

RELATIONS COMMISSION.!

ARTICLE I. COMMISSION;CREATION AND

STRUCTURE.

ARTICLE II. CITY POLICY AND PROCEDURES

AGAINST DISCRIMINATION.

ARTICLE III. DISCRIMINATION IN PUBLIC

ACCOMMODATIONS AND CLUBS.

ARTICLE IV. DISCRIMINATION IN PUBLIC

ACCOMMODATIONS, EMPLOYMENT, AND

REAL ESTATE AND HOUSING.

ARTICLE I. COMMISSION;CREATION AND

STRUCTURE

Section 40C-1. Authorization.

(a) It is the intent of this article to authorize creation

by the Mayor of a new bureau, to be known as the Human

Relations Commission, which shall be authorized to exist

! Section 1 of M.C.S., Ord. No. 14,984, adopted Dec. 19, 1991, called for

the addition of a Chapter 40A. Inasmuch as provisions already existed

in this Code as Ch. 40A, Municipal Service Charge, new provisions

adopted by Ord. No. 14, 984 have been included herein as Ch. 40C at the

editor’s discretion.

A-73

and act for the city, as provided in this article, with the ad-

vice of an Advisory Committee on Human Relations con-

stituted as provided herein. It is the intent of this article

to exercise the city’s rights under Article VI, Section 6 of

the Constitution; and the Council declares that said

bureau, acting with the advice of said committee, shal! con-

stitute the city’s human rights commission under state

law. The term ‘‘commission,”’ as used in this article, refers

to said bureau acting with the advice of said committee;

and the term ‘‘committee’’ refers to said committee acting

as the designated advisor to said bureau. The Council finds

that the use of a bureau within an existing administration

unit, advised by a citizens’ advisory committee, to serve as

a city human rights commission will achieve the goals of in-

dependence of judgment and participation of citizens

representing diverse interest and community groups while

at the same time observing the Home Rule Charter policy

against the proliferation of administratively discrete

agencies.

(b) Subject to the limitation set forth in Subsection

(c), the Mayor is hereby authorized to create, within one of

the offices, departments or boards created or recognized by

the Home Rule Charter, a bureau to be known as the New

Orleans Human Relations Commission.

(c) The authorization granted in Subsection (b) shall

be effective only during the period or periods of existence

of an advisory committee on human relations appointed

pursuant to Section 40C-2.

(d) The New Orleans Human Relations Commission

shall be headed by a fulltime executive director, and may

A-74

employ additional staff in the manner provided by ap-

plicable law. Except as may otherwise be provided in ap-

plicable law, the Executive Director shall be appointed only

after consultation with the Advisory Committee on Human

Relations. (M.C.S., Ord. No. 14,910, § 1, 11-26-91; M.C.S.,

Ord. No. 14,984, § 1, 12-19-91.)

Section 40C-2. Advisory committee on human relations.

(a) Pursuant to the provisions of Section 4-104 of the

Home Rule Charter, the Mayor, or with the consent of the

Mayor, the head of any department or any board to which

the New Orleans Human Relations Commission shall have

been assigned, may appoint an advisory committee to be

known as the Advisory Committee on Human Relations. In

order for its existence to be sufficient to give effect to the

authorization granted by Section 40C-1(a), the Advisory

Committee on Human Relations must be organized in ac-

cordance with Subsection (b) of this section.

(b) The Advisory Committee shall be composed of

eighteen (18) members, to be appointed as follows: Seven (7)

members each appointed as directed by a different member

of the City Council, two (2) members appointed at the sole

discretion of the Mayor, and nine (9) members appointed

from a list of eighteen (18) submitted by a nominating com-

mittee composed of the Presidents of Xavier University,

Dillard University, Tulane University, Loyola University,

Delgado Community College, and Our Lady of the Holy

Cross College, and the Chancellors of the University of

New Orleans and Southern University in New Orleans.

LE EEE EE OE ET AP

A-75

(c) The nominating committee referred to in Subsec- :

tion (b) shall be convened by the Mayor on the earliest prac-

tical date and shall conduct its own affairs as a citizens’ ad-

visory committee supported by the staff of the Office of the

Mayor. Before making its nominations, the nominating

committee shall solicit the recommendations of civic, pro-

fessional, social, advocacy, trade, labor, civil rights, and

other organizations, including but not necessarily limited

to, the Chamber/New Orleans and the River Region, the

Roman Catholic Archdiocese of New Orleans, the Black

Economic Development Council, the local Anti-Defamation

League of B’nai, the Interdenominational Ministerial

Alliance, the local American Federation of Labor/Congress

of Industrial Organizations, and the local Federation of

Churches, and shall receive and consider the timely recom-

mendations of any other persons who choose to submit

recommendations.

(d) The appointment of a member of the Advisory

Committee shall not become effective until it has been con-

firmed by the City Council. Members of the Committee

shall serve a term of one (1) year and shall serve without

compensation.

(e) A simple majority of the members of the Advisory

Committee shall institute a quorum for the purposes of do-

ing business and of formal compliance with the Open

Meetings Law, unless otherwise provided by state Law. A

majority vote shall be required for Advisory Committee ac-

tion. The Executive Director of the Human Relations Com-

mission shall have a voice, but not vote, in meetings of the

Advisory Committee.

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(f) The Mayor, the Council and the nominating com-

mittee shall exercise their best efforts to ensure that the

members of the advisory committee are appointed and con-

firmed by the earliest possible date. Within one (1) month

of its appointment, the Committee shall meet, at the call of

the Mayor, and shall designate one of its members as

Chairperson and one as Vice-Chairperson. The Vice-

Chairperson shall act as Chairperson in the absence or

disability of the Chairperson or in the event of a vacancy

in that office. Any vacancy in the Committee shall not af-

fect its powers and shall be filled in the same manner and

subject to the same limitations as to the particular appoin-

ting authority that governed the original appointment.

(g) Any member may be removed by the Committee

with the concurrence of the Mayor and a majority of the Ci-

ty Council for unexcused failure to attend meetings or

neglect of duties or for any cause sufficient to warrant

removal of a city board member. (M.C.S., Ord. No. 14,910,

§ 1, 11-26-91; M.C.S., Ord. No. 14,984, § 1, 12-19-91.)

Section 40C-3. Duties of the commission.

The Commission, with the advice of, and in close

cooperation with the Advisory Committee shall:

(1) Study and (in such manner and subdject to such

screening procedures as may be provided in its

rules) collect information concerning written com-

plaints, signed by one (1) or more complainants, that

citizens of the City of New Orleans are being or have

been deprived of rights guaranteed to them by the

United States or Louisiana Constitution or the laws

(2)

(3)

(4)

(5)

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of the State of Louisiana or the City of New Orleans,

on account of color, race, creed, religion, culture,

ancestry or national origin, sex, sexual orientation,

age, physical condition or disability.

Study and collect information concerning legal

developments constituting discrimination or denial

of equal protection of the laws under the United

States or Louisiana Constitution because of color,

race, creed, religion, culture, ancestry, or national

origin, sex, sexual orientation, age, physical condi-

tion or disability, or the inadequate or partial ad-

ministration of justice.

Appraise the laws and policies of the Federal

Government, the State of Louisiana, and the City of

New Orleans, with respect to discrimination or

denials of equal protection of the laws under the

United States or Louisiana Constitution because of

color, race, creed, religion, culture, ancestry or na-

tional origin, sex, sexual orientation, age, physical

condition or disability, or the inadequate or partial

administration of justice.

Collect and report information and establish forums

and other means for dialogue concerning the social

and economic progress and development of all

citizens of the City of New Orleans.

Foster mutual understanding and respect among all

economic, social, religious, cultural and ethnic

groups in the city.

A-78

(6) Assist in maintaining the integrity of the electoral

process with respect to voting rights.

(7) Cooperate with Federal, State, and City agencies in

their efforts to curb discriminatory practices.

(8) Seek grants and donations on behalf of the city from

foundations and others for the purpose of carrying

out its functions, subject to the approval of the

Council and the Mayor. The acceptance of such

grants and donations by the city shall be subject to

the provisions of Section 5-402 of the City Charter.

(9) Report to the City Council and the Mayor on an an-

nual basis concerning each of its duties. (M.C.S.,

Ord. No. 14,910, § 1, 1-26-91; Ord. No. M.C.S., Ord.

No. 14,984, § 1, 12-19-91.)

Section 40C-4. Reserved.

Section 40C-5. Action by commission.

(a) The Human Relations Commission shall act by

and through its Executive Director. In all matters,

however, the Executive Director shall act strictly in confor-

mity with the recommendations of the Advisory Commit-

tee on Human Relations.

(b) The Human Relations Commission may act con-

trary to the recommendations of the Advisory Commission

on Human Relations only if:

(1) The City Attorney has rendered a written opinion

that strict conformity with said recommendations

Ve

A-79

would be unlawful, and the Mayor has certified his

acceptance of said opinion in a writing directed to

the members of the Council; or

(2) The Mayor has in writing directed to the Commis-

sion and distributed to the members of the Council,

suspended the obligation to act in such conformity

until the adjournment of the next regular Council

meeting; or

(3) The Council by two-thirds (%) vote has expressly

overruled said recommendations of the Advisory

Committee. (M.C.S., Ord. No. 14,910, § 1, 11-26-91;

M.C.S., Ord. No. 14,984, § 1, 12-19-91.)

Section 40C-6. Miscellaneous provisions. '

(a) All city agencies and departments shall cooperate

fully with the Commission and Advisory Committee to the

end that they may effectively carry out their functions and

duties.

(b) The Advisory Committee may, for the purpose of

carrying out the provisions of this chapter, hold such hear-

ings and act at such times and places as are deemed ad-

visable. Subpoenas for the attendance and testimony of

witnesses or the production of written or other matter may

be issued in accordance with applicable state or city law.

The holding of hearings by the Advisory Committee or the

appointment of a subcommittee or a hearing examiner to

hold hearings pursuant to this paragraph, must be approv-

ed by a majority of the members present at a meeting at

which a quorum is present.

A-80

(c) Without limiting the generality of the foregoing,

the Executive Director or his deputies shall have the power

and authority unless otherwise provided in applicable law,

to administer oaths or take statements of witnesses with

regard to the aformentioned hearings.

(d) The Advisory Committee shall have the power to

create subcommittees; and the Commission with the advice

of the Committee shall have the power to make such rules

and regulations as are convenient or necessary to carry out

the purposes of this chapter in the manner provided in the

City Charter.

(e) All meetings of the Advisory Committee and its

subcommittees shall be subject to the Open Meetings Law

of the State of Louisiana. (M.C.S., Ord. No. 14,910, § 1,

11-26-91; M.C.S., Ord. No. 14,984, § 1, 12-19-91.)

Section 40C-7. Report on hearings.

The Commission, after the completion of any hear-

ing, shall make a report in writing to the Mayor and City

Council setting forth the facts found and its recommenda-

tions or decision, as the case may be. At any hearing before

the Commission or Committee a witness shall have the

right to be advised by counsel present during such hear-

ings. (M.C.S., Ord. No. 14,910, § 1, 11-26-91; M.C.S., Ord.

No. 14,984, § 1, 12-19-91.)

Section 40C-8. Meetings.

(a) The Advisory Committee shall meet for regular

meetings at least once every two (2) months at such time

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and place as shall be fixed by the Committee. Special

meetings may be called by the Executive Director, by the

Chairperson or, in his absence, by the Vice-Chairperson,

and shall be called by the Executive Director on the written

request of eight (8) or more members of the committee. All

such requests and all notices of meetings shall state the

purpose or purposes for which such special meeting is to be

called and sha!l be filed with the Chairperson and served

upon all members upon whom service can reasonably be

made at least twenty-four (24) hours before the time of the

special meeting.

(b) Such a request and call for a special meeting shall

be read at the meeting and entered in the minutes, and no

business shall be transacted except that stated in the re-

quest for such special meeting.

(c) The Executive Director shall prepare the agenda

and give all notices required for each meeting. The Ad-

visory Committee shall keep minutes of meetings and shall

establish its own rules of order or adopt Robert’s Rules of

Order for the conduct of meetings. (M.C.S., Ord. No.

14,910, § 1, 11-26-91; M.C.S., Ord. No. 14,984, § 1,

12-19-91.)

Section 40D-9. Assistance of mayor and executive

branch.

The Commission or Committee may request and

receive from the Mayor the use of such employees of his of-

fice as may be necessary for the proper conduct of business.

The Department of Law shall designate a legal adviser for

the Commission and Advisory Committee, who shall have

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a voice but no vote in all matters. The services of all other

departments of the City of New Orleans may be available

to the Committee upon its request to the Mayor for such

services. Information in the possession of any department,

board, or agency of the City of New Orleans shall be fur-

nished to the Commission or Committee upon request, and

to the extent permitted by law, subject to any limitations

upon its ability and capacity to furnish the information.

Upon the refusal by any director or head of any depart-

ment, board, or agency of the city to furnish any informa-

tion which has been requested, the matter shall be referred

to the Mayor, who shall determine promptly whether such

information shall be furnished to the Commission and Com-

mittee; and the decision of the Mayor shall be final. The

Department of Property Management is authorized to

allocate adequate office space and to provide necessary

facilities for the Commission, and shall provide a suitable

meeting place for the Advisory Committee. (M.C.S., Ord.

No. 14,910, § 1, 11-26-91; M.C.S., Ord. No. 14,984, § 1,

12-19-91.)

Sections 40C-10—40C-49. Reserved.

ARTICLE II. CITY POLICY AND PROCEDURES

AGAINST DISCRIMINATION.

Section 40C-50. Policy and procedures.

In the City of New Orleans with its great

cosmopolitan population consisting of large numbers of

people of every race, color, creed, religion, age, physical

condition, national origin and ancestry, many of them with

disabilities, there is no greater danger to the health,

morals, safety and welfare of the city and its inhabitants

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than the existence of groups prejudiced against one

another and antagonistic to each other because of dif-

ferences of race, color, sex, creed, religion, age, national

origin or ancestry, or physical condition or disability or

sexual orientation. The Council hereby finds and declares

that prejudice, intolerance, bigotry, and discrimination and

disorder occasioned thereby threaten the rights and proper

privileges of its inhabitants and menace the institutions

and foundation of a free democratic state. The New Orleans

Human Relations Commission as created by Article I of

this chapter is designated as an instrument of the city’s

power to eliminate and prevent discrimination in employ-

ment, in places of public accommodation, resort or amuse-

ment, in housing accommodations and in commercial space

because of race, creed, religion, color, sex, age, sexual orien-

tation, national origin, ancestry, or physical condition or

disability whenever such discrimination is prohibited by

provisions of this chapter or other city law; and said com-

mission is hereby designated as the local Human Rights

Commission for this city and is given such jurisdiction and

power for such purposes as is conferred upon or authorized

to a local Human Rights Commission under applicable

state law. Except as otherwise provided in the City

Charter, this Code, or applicable state law, the Commission

is hereby authorized to enforce and administer any and all

city ordinances prohibiting discrimination in public accom-

modations or in other areas, including but not limited to,

the provisions of this chapter.(M.C.S., Ord. No. 14,984, § 1,

12-19-91.)

Section 40C-51. Complaints; investigations.

The New Orleans Human Relations Commission

shall receive, investigate and pass upon complaints and

may initiate its own investigation of:

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(a) Racial, religious and ethnic group tensions, pre-

judice, intolerance, bigotry and disorder occasioned

thereby.

(b) Discrimination againsst any person, group of per-

sons, organization or corporation, practiced by

private persons, associations, or corporations, and,

after consultation with the Mayor, by city officials

or city agencies, Upon its own motion, the Commis-

sion may make, sign and file complaints alleging

violations of any provision of this chapter or any

other law prohibiting discrimination.(M.C.S., Ord.

No. 14,984, § 1, 12-19-91.)

Section 40C-52. Club membership list.

The Commission shall not require the production of

names from a general membership list of any club that is

a place of public accommodation. (M.C.S., Ord. No. 14,984,

§ 1, 12-19-91.)

Section 40C-53. Discriminatory acts and practices

prohibited.

(a) Any person claiming to be aggrieved by an

unlawful discriminatory practice or other act prohibited by

this chapter may, by himself or herself or through an

attorney-at-large, make, sign and file with the Commission

a verified complaint in writing which shall state the name

and address of the person alleged to have committed the

unlawful discriminatory practice or act complained of and

which shall set forth the particulars thereof and contain

such other information as may be required by the Commis-

sion. The Commission through its Executive Director may,

in like manner, make, sign and file such a complaint. In con-

nection with the filing of such a complaint, the Commission

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is authorized to take proof, issue subpoenas and administer

oaths in the manner provided in all applicable ad-

ministrative laws, regulations and rules. Any employer

whose employees, or some of them, refuse or threaten to

refuse to cooperate with the provisions of this chapter, may

file with the Commission a verified complaint asking for

assistance by conciliation or other remedial action.

(b) After the filing of any complaint, the Commission

shall make prompt investigation in connection therewith.

If the Commission shall determine after such investigation

that probable cause does not exist for crediting the allega-

tions of the complaint that the person named in the com-

plaint, hereinafter referred to as the respondent, has engag-

ed or is engaging in a prohibited or unlawful discriminatory

practice, the Commission shall issue and cause to be served

on the complainant an order dismissing such allegation of

said complaint as to such respondent. The complainant

may, within thirty (30) days of such service, apply to the

Council for consideration of such action of the Commission.

Upon such application, the Council may review such action

and determine whether there is probable cause to credit the

allegations of the complaint and accordingly shall enter an

order affirming, reversing or modifying the determination

of the Commission or remanding the matter for further in-

vestigation and action, a copy of which order shall be serv-

ed upon the complainant.

(c) If the Commission, after investigation, shall deter-

mine that there is probable cause to credit the allegations

of the complaint, or if the Council after consideration, shall

determine that there is such probable cause, the Commis-

sion shali immediately endeavor to eliminate such pro-

hibited acts or unlawful discriminatory practice by pro-

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ceeding in the following manner:

(1)

(2)

If in the judgement of the Commission cir-

cumstances so warrant, it may endeavor to

eliminate such prohibited or unlawful

discriminatory practice by conference, conciliation

and persuasion, resulting in a conciliation agree-

ment. The terms of such conciliation agreement

shall include provisions requiring the respondent to

refrain from the Commission of unlawful

discriminatory practices in the future and may con-

tain such further provisions as may be agree upon

by the Commission and respondent, including a pro-

vision for the entry in court of a consent decree em-

bodying the terms of the conciliation agreement.

In case of failure to eliminate the unlawful

discriminatory practice complained of, or in ad-

vance thereof as determined by the Commission, it

shall cause to be issued and served in the name of

the Commission, a written notice, together with a

copy of such complaint, as the same may have been

amended, requiring the respondent or respondents

to answer the charges of such complaint at a hear-

ing before a hearing officer designated by the Ex-

ecutive Director, at a time and place to be fixed by

the Executive Director, and specified in such notice.

The place of any such hearing shall be the office of

the Commission or such other place as may be

designated in the notice. The case in support of the

complaint shall be presented before the Commission

by the Department of Law or another represen-

tative designated by the Executive Director.

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Endeavors at conciliation by the Commission shall

not be received in evidence. The respondent may file

a written verified answer to the complaint and ap-

pear at such hearing in person or otherwise, with or

without counsel, and submit testimony. The com-

plainant shall have the power to make reasonable

amendments of the complaint, and the repondent

shal] have like power to make reasonable amend-

ments of his or her answer. The Commission shall

not be bound by the strict rules of evidence prevail-

ing in courts of law or equity. The testimony taken

at the hearing shall be under oath and shall be

recorded in an electronically stored video and/or

audio format and may be transcribed at the expense

of any person who desires a transcript. Any party

may cause the hearing to be recorded by a certified

court reperter at his or her own expense.

(3) If, upon all the evidence at the hearing, the Commis-

sion, or such hearing officer as may have been

designated, shall find that a respondent has engag-

ed in any unlawful discriminatory practice pro-

hibited in this Code, the Commission shall state its

findings of fact and shall issue and cause to be serv-

ed on such respondent an order requiring such

respondent to cease and desist from such unlawful

discriminatory practice and to take such affirmative

action, including (but not limited to) restoration to

membership in any respondent organization, admis-

sion to or participation in a program, the extension

of full, equal and unsegregated accommodations,

advantages, facilities and privileges to all persons,

evaluating applications for membership in a club

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that is not distinctly private without discrimination

based on race, creed, religion, color, national origin,

ancestry, sex, physical condition, sexual orientation

or disability, and including a requirement for report

of the manner of compliance. If, upon all the

evidence, the Commission shall find that a respon-

dent has not engaged in any such unlawful

discriminatory practice, the Commission shall state

its finding of fact and shall issue and cause to be

served on the complainant an order dismissing the

complaint as to such respondent.

(d) Any complaint filed pursuant to this section must

be so filed within one (1) year after the alleged act of

discrimination.

(e) Whenever a complaint has been filed against any

carnival krewe, parading carnival organization or other

organization organized or existing for the primary or domi-

nant purpose of observing or participating in the carnival

season, the respondent may submit an affidavit of its cap-

tain or other officer of commensurate rank, attesting or af-

firming that the respondent has no written or unwritten

provision in its charter, by-laws, rules, regulations or

policies which calls for the refusal, withholding or denying

of membership, or any of the services, accommodations, ad-

vantages, facilities or privileges offered by the respondent

to members or others, because of race, color, creed, religion,

national origin, sexual orientation or ancestry, or which

unreasonable calls for such discrimination on the basis of

age, sex, physical condition or disability and that it and its

members will, except as otherwise authorized by Section

40C-111, treat all proposals for membership in a non-

discriminatory manner in accordance with the procedures

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contained in the krewe’s by-laws and regulations. Upon

receipt of such writing, the Commission shall issue and

cause to be served on the complainant an order dismissing

such complaint and no further proceeding shall be had by

way of hearing or otherwise before the Director or Commis-

sion or by appeal to the Council.

(f) At any time after the filing of a complaint alleging

an unlawful discriminatory practice under this chapter, if

the Commission determines that the respondent is doing or

procuring to be done any act tending or render ineffectual

any order the Commission has entered or may thereafter

enter in such proceeding, the Commission may authorize

the Department of Law to apply in the name of the city and

Commission to any court of competent jurisdiction and

proper venue, for an order requiring the respondents or any

of them to show cause why they should not be enjoined

from vitiating or violating the restraining order and shall

be served in the manner provided therein.(M.C.S., Ord. No.

14,984, § 1, 12-19-91; M.C.S., Ord. No. 15-917, § 1, 5-7-92.)

Section 40C-54. Judicial review and enforcement.

Subject to applicable state law, any complainant,

respondent or other person aggrieved by any infringement

of an order of the Commission may obtain an order of court

for its enforcement. Such proceeding shall be brought in a

court of proper venue and competent jurisdiction.(M.C.S.,

Ord. No. 14,984, § 1, 12-19-91; M.C.S., Ord. No. 15,197, §

7, 5-7-92.)

Cle atta a Ast har a fe eaten! 6

A-90

Section 40C-55. Penal provision for obstruction.

Any person, employer, labor organization or employ-

ment agency, who or which shall willfully resist, prevent,

impede or interfere with the Commission or any of its

agents or representatives in the performance of duty under

this chapter, or shall willfully violate an order of the Com-

mission or any of its members or representatives in the Per-

formance of duty under this chapter, shall be guilty of a

misdemeanor and shall be punished by imprisonment for

not more than five (5) months, or by a fine of not more than

three hundred dollars ($300,00), or by both such imprison-

ment and such fine; provided that procedure for the review

of the order shall not be deemed to be such willful conduct,

(M.C.S., Ord. No. 14,984, § 1, 12-19-91.)

Section 40C-56. Construction.

The provisions of this chapter shall be construed

liberally for the accomplishment of the purposes thereof.

Nothing contained in this chapter shall be deemed to

repeal, supersede, or impair any of the provisions of any

civil rights law or any other law of this city or state relating

to discrimination because of race, creed, religion, color, na-

tional origin or ancestry, physical condition or disability;

but as to acts declared unlawful by this chapter, the pro-

cedure provided in this article shall, while pending, be ex-

clusive of all other civil procedures created by city law (but

not exclusive of misdemeanor criminal law procedures or

procedures under state or federal law); and the final deter-

mination therein shall exclude any other civil action, or

remedy created by city law, based on the same grievance of

the person concerned. If such person institutes any such

A-91

action or seeks any such remedy based on such grievance

without first resorting to the procedure provided in this ar-

ticle, he or she may not subsequently resort to the pro-

cedure set forth herein.(M.C.S., Ord. No. 14,984, § 1,

12-19-91.)

Section 40C-57. Criminal penalties, generally.

(a) Unless it is expressly provided otherwise

elsewhere in a particular section of this chapter, any person

who does anything prohibited or fails to do anything re-

quired by this chapter shall be guilty of a misdemeanor and

upon conviction thereof, shall be sentenced to a term of im-

prisonment not to exceed five (5) months, or to a fine not

to exceed three hundred dollars ($300.00), or to both such

imprisonment and such fine.

(b) Unless required to do so by applicable law or by

the Court, the City Attorney shall not prosecute an offense

this under section during the pendency under Article II of

this chapter of civil proceedings concerning the same com-

plainant and respondent and the same grievance before the

Human Relations Commission.(M.C.S., Ord. No. 14,984, §

1, 12-19-91.)

Sections 40C-58—40C-100. Reserved.

ARTICLE III. DISCRIMINATION IN PUBLIC

ACCOMMODATIONS AND CLUBS.

SECTION 40C-101. Discrimination in public.

Accommodations; definition. For the purposes of

i ai NA Be abies caer ak

A-92

this article, the following words and phrases shall have the

meanings hereinafter assigned unless a particular context

clearly indicates otherwise:

Benevolent or fraternal lodge. The term ‘“‘benevolent

or fraternal lodge” shall mean a society or voluntary

association organized and carried on for the mutual aid and

benefit of its members, not for profit, which ordinarily has

a lodge system a ritualistic form of work, and a represen-

tative government, and an emphasis on the common in-

terests and bonds of friendship among its members. The

term shall not include any entity or associated club

organized or existing for the dominant purpose of par-

ticipating in or observing the Carnival Season.

Commission. The term ‘‘Commission,” unless a dif-

ferent meaning clearly appears from the context, means the

New Orleans Human Relations Commission, the creation

of which is authorized by this chapter.

Director. For the purposes of this article, ‘‘Director’’

shall mean the Executive Director of the New Orleans

Human Relations Commission, if such a body has been

established, or in the absence thereof any officer or

employee of the city designated by law to implement the

provisions of this article, or, if no applicable law makes

such a designation, designated by the Mayor in a writing

filed with the Clerk of Council.

Disability. The term ‘‘disability” refers to the status

or defining characteristic of a ‘‘disabled’’ or ““*handicapped”’

person; the terms ‘‘disabled person’ or “handicapped per-

son’’ mean any person who has or had a physical or mental

impairment that substantially limits one or more major life

activities, and who has a record of such an impairment or

who is perceived to have such an impairment.

A-93

Discrimination; to discriminate. Any difference in

the treatment of a person, including exclusion or segrega-

tion, because of race, color, creed, religion, sex, sexual

orientation, national origin, ancestry, age, physical condi-

tion, or disability.

Has a record of such an impairment. The term “‘has

a record of such an impairment’”’ means has a history of, or

has been classified as having a mental or physical impair-

ment that substantially limits one or more major life

activities.

Major life activities. The term “major life activities”

means functions such as caring for one’s self, performing

manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working.

Person: An association, partnership, corporation, or

other legal entity or a natural person. As applied to a part-

nership or other entity, ‘‘person”’ includes its members, and

as applied to a corporation, ‘‘person”’ included its officers.

Public accommodation, resort, or amusment

includes:

(1) Any place or means of transportation which is open

to, accepts or solicits the patronage of the general

public or offers goods or services to the general

public, including all places included in the meaning

of such terms as: inns, taverns, road houses, hotels,

motels, whether conducted for the entertainment of

transient guests or for the accomodation of those

seeking health, recreation or rest; or restaurants, or

eating houses, or any place where food is sold for

consumption on the premises; takeout restaurants;

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(2)

A-94

buffets, saloons, barrooms, or any store, park or

enclosure where alcoholic beverages are sold; ice

cream parlors, confectioneries, soda fountains, and

all stores where ice cream, ice and fruit preparations

or their derivatives, or where beverages of any kind

are retailed for consumption; retail stores and

establishments dealing with goods or services of

any kind; clinics, hospitals, bathhouses, swimming

pools, laundries and all other cleaning

establishments; barber shops, beauty parlors,

theatres, motion picture houses, airdromes, roof

gardens, music halls, race courses, casinos, betting

parlors, bingo or other charitable gaming halls,

skating rinks, amusement and recreation parks,

video arcades, amusement parlors, trailer camps,

resort camps, fairs, bowling alleys golf courses,

gymnasiums, marinas and public boating facilities,

shooting galleries, billiard and pool parlors;

massage establishments and health clubs; garages,

taxicabs, limousines and all public conveyances

operated on land or water or in the air, as well as the

stations and terminals thereof; travel or tour ser-

vices, agencies, or bureaus; public halls and public

elevators of buildings and structures occupied by

two (2) or more tenants, or by the owners and one (1)

or more tenants.

Any institution, club, or place of accommodation

which:

a. has more than seventy-five (75) members.

b. either:

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1. regularly receives payment for dues, fees, use

of space, facilities, services, meals or

beverages, directly or indirectly; either from

or on behalf of nonmembers or members for or

in the direct or indirect furtherance of trade or

business or from or on behalf of any persons

who claim such payment as a business ex-

pense for tax purposes, or,

2. has, within the preceding calendar year,

received a permit pursuant to Section 12A-20

of this Code to parade during the defined car-

nival parade season as set forth, in Section

12A-4 of this Code while having within its

charter, by-laws, rules regulations or written

or unwritten policies any provision which calls

for the refusal, withholding or denying of

membership or of any of the services, accom-

modations, advantages, facilities or privileges

offered by the institution, club, or place of ac-

commodation to members or others because of

race, color, creed, religion, national origin, sex-

ual orientation, or ancestry, or which

unreasonably calls for such discrimination

because of physicial condition, or disability,

and

c. which either:

1. provides regular meal service, or

2. uses for its activities, on a recurring basis, the

public streets, ways or places or publicly own-

ed or operated facilities under authority of a

Poi at ek itil eon a

Ba Stes

A-96

permit, license, franchise or priviledge

granted by a public body, under cir-

cumstances such that, as a result of said ac-

tivities in or on publicly owned or operated

property, expenses are incurred by a public

body which are not wholly recovered in

payments to the public body by the institu-

tion, club, or place of accommodation. The

rental of the Municipal Auditorium by a non-

profit corporation, at the “‘full-price’’ rates as

established by the Chief Administrative Of-

ficer, is hereby declared to be a situation in

which the expenses incurred by the city are

wholly recovered by payment as to the city by

the nonprofit corporation. It shall by the duty

of the Chief Administrative Officer to ensure

that the payments for rental of the Municipal

Auditorium by a nonprofit corporation for

events which are not open to the public at-

large are sufficient to wholly recover all ex-

penses incurred by the City of New Orleans.

(3) ‘Public accommodation,” “resort’’ or ““amuse-

ment”’ is expressly deemed not to include, provided

the accommodation’s facilities, services, advan-

tages and privileges are restricted to members and

their guests:

a. Any bona fide private club, which:

1. does not have more than seventy-five (75)

members;

2. which neither:

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(a) regularly receives payments for dues,

fees, use of space, facilities, services,

meals or beverages, directly or indirect-

ly, either from or on behalf of non-

members or members for or in the direct

or indirect furtherance of trade or

business or from any persons who claim

such payment as a business expense for

tax purposes, nor

(b) has, within the preceding calendar year,

received a permit pursuant to Section

12A-20 of this Code to parade during

the Carnival Parade Season as set forth

in Section 12A-4 of the Code; or

3. which neither:

(a) provides regular meal service, nor

(b) uses for its activities, on a recurring

basis, the public streets, ways or places

or publicly-owned or operated facilities

in the manner and under the cir-

cumstances hereinabove described.

Any bona fide benevolent or fraternal lodge or

religious or political organization, or any organiza-

tion formed for the predominant purpose of ad-

vocacy of a cause or viewpoint which by the nature

of its purpose excludes from its membership those

to whom the advocated cause or viewpoint is

inimical.

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A-98

Regular meal service. The term, “regular meal ser-

vice” shall mean the availability of meals on a predictable

basis as to time and place and on premises owned or con-

trolled by a public accommodation, resort, or amusement,

as defined herein, where such meals are prepared and/or

served by employees of said public accommodation or its

lessee, contractors, licensee or agent, for consumption on

said premises by members and/or guests.

‘‘Regular meal service” shall not include meals pro-

vided as hospitality by a member in a private home or

public restaurant, nor the sale of commercially-packaged

snack items, nor infrequent meals such as banquets or

ceremonial breakfasts held to celebrate special occasions.

Sexual orientation. The term ‘‘sexual orientation’”’ is

defined as heterosexuality, homosexuality or bisexuality

for purposes of this chapter.(M.C.S., Ord. No. 14,984, § 1,

12-19-91; M.C.S., Ord. No. 15,197, § 2, 5-7-92; M.C.S., Ord.

No. 15,199, § 1, 5-21-92.)

Section 40C-102. Unlawful practices.

(a) It shall be an unlawful discriminatory prac-

tice and a misdemeanor for any public accommodation,

resort, or amusement, as defined in Section 40C-101 or for

any person who is the owner, lessee, proprietor, manager,

superintendent, employee, officer or agent thereof:

(1) To discriminate against any person, either directly

or indirectly, by refusing, withholding, or denying

to such person any of the services, accommodations,

advantages, facilities or privileges offered by the

(2)

(3)

A-99

public accommodation, resort or amusement, by

placing or attempting to place any person in a

separate class of customers, patrons, members,

guests or usere or in a separate section or area of the

premises or facilities of the public accommodation,

resort or amusement because of race, color, creed,

religion, national origin, ancestry, or unreasonably

because of age, sex, sexual orientation, physical con-

dition or disability.

To publish, circulate, issue, display, post or mail

either directly or indirectly any written or printed

communication, notice or advertisement to the ef-

fect that any of the services, accommodations, ad-

vantages, facilities or privileges of any public ac-

commodation, resort or amusement will be refused,

withheld, or denied to any person on account of race,

color, creed, religion, national origin, ancestry, or

unreasonably on account of sex, sexual orientation,

age, physical condition or disability, or that the

patronage of any person of a particular race, color,

creed, religion, sex, sexual orientation, national

origin ancestry, age, physical condition or disabili-

ty, is unwelcome, objectionable or not acceptable,

desired or solicited, or that any person is required or

requested to use a separate section or area of the

premises or facilities of the public accommodations,

resort or amusement, because of race, color, creed,

religion, national origin, ancestry, or unreasonably

because of sex, sexual orientation, age, physical con-

dition or disability.

to aid, abet, incite, counsel or coerce the doing of

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A-100

any act declared herein to be unlawful or to prevent

any person from complying with this article or any

rule, regulation or order issued pursuant there to.

(b) The provisions of this section shall not prohibit to

the placement of persons in a separate restroom, bath,

locker room, shower, physical or medical examination or

treatment facility, dressing area, or dormitory or sleeping

room used by more than one (1) party of persons at a time,

if such placement is reasonable and based on the person’s

sex or sexual orientation. The provisions of this section

shall not apply, with respect to sex, sexual orientation,

physical condition, or disability, to places of public accom-

modation, resort or amusement where the Council or the

Commission grants an exemption based on bona fide con-

siderations of public policy. Any place of accommodation

which is required as a result of this section to construct or

reconstruct a locker room, shower, or other facilities for the

use of members of a particular sex or similar group or for

the use of the mobility impaired shall be allowed until the

first anniversary of the effective date of [Ordinance

Number 14,984,] the ordinance by which this article is

adopted, to complete such work, and prior to such date

shall not be found to be in violation of the provisions of this

section which apply to such facilities with regard to

discrimination on account of sex or a mobility-impairment

disability. The Director, for good cause shown, may grant

an extension not to exceed an additional ninety (90) days

after the date allowed such place of accommodation to com-

plete such work.

(c) It shall be an unlawful discriminatory practice for

any person engaged in any activity to which this section

A-101

applies to retaliate or discriminate against any person

because such person has opposed any practices forbidden

under this chapter or such person filed a complaint,

testified or assisted in any proceeding under this chapter.

(d) It shall be an unlawful discriminatory practice for

any party to aconciliation agreement made pursuant to Ar-

ticle II of this chapter to violate the terms of this chapter

to violate the terms of such agreement.

(e) Nothing contained in this section shall be con-

strued to bar any religious or denominational institution or

organization or any organization, operated for charitable or

educational purposes, which is operated, supervised or con-

trolled by or in connection with a religious organization,

from limiting employment or sales or rental of housing ac-

commodations or admission to or giving preference to per-

sons of the same religious or denomination or from making

such selection as is calculated by such organization to pro-

mote the religious principles for which it is established or

maintained.

(f) No act or practice shall be construed as an

unlawful discriminatory practice under this chapter if that

act or practice is expressly authorized by valid and

presemptive state or federal law. Nothing in this chapter

shall be construed as requiring or as authorizing a public

accommodation to require a person with a particular

physical condition or disability to accept any special

facilities or treatment offered as a special accommodation

for persons with such a condition or disability if such per-

son declines to accept such special accommodation. It shall

be an unlawful discriminatory practice for any person to

refuse, withhold, or deny any service, accommodation

obs 1s sesc slaaaauaimaaalll

A-102

because the person with the particular physical condition

or disability had declined to accept such a special accom-

modation; provided, however, that a person with a mobility

impairment that requires the use of a wheelchair or similar

device may be required to accept a special accommodation

if refusal to do so would necessarily result in a violation of

fire code or similar public safety regulations. (M.C.S., Ord.

No. 14,984, § 1, 12-19-91; M.C.S., Ord. No. 15,197, § 3,

5-7-92.)

Section 40C-103. Distinctly private entities.

(a) The Director shall maintain a registry of institu-

tions, clubs or places of accommodation certified by him or

her to be distinctly private in character. The provisions of

Section 40C-102 shall not apply to any institution, club or

accommodation included in the registry for so long as it is

so included. Any certification that a club or institution is

distinctly private in character shall be valid for a period of

three (3) years from the date of the initial certification, but

may be renewed upon application of the registrant for suc-

cessive additional periods of three (3) years.

(b) The Director, upon application of any institution,

club or accommodation shall certify an applicant for inclu-

sion in the registry if the applicant proves, by a

preponderance of the evidence, that it is distinctly private

in character. A club or institution is distinctly private in

character if either:

(1ja. Its services, accommodations, advantages,

facilities, or privileges are not offered or

available to the public or to a wide sector of

the public exclusive of a class or classes

A-103

discrimination against whom is prohibited by

this article;

. it is not an agent of the state or its creatures,

agencies or subdivisions, and its activities do

not constitute state action;

it does not advertise for or engage in general

solicitation to attract potential customers,

patrons, or members;

. it does not fulfill a vital community role af-

fected with public interest;

its activities are not subsidized directly or in-

directly by public funds, nor does it otherwise

receive governmcital support;

it does not exist or operate for commercial or

business purposes;

. it generally denies its services, accommoda-

tions, advantages, and privileges and par-

ticipation in its activities, meetings, and

social functions to all but members and their

guests;

. its membership is of moderate size, and it is

not connected with a larger institution, club

or accommodation that is a _ public

accommodation;

its organizers had the intention of con-

stituting a private institution, club, or

accommodation;

its organizational structure has not been

altered since passage of the Civil Rights Act

of 1964 in an attempt to avoid the applicabili-

(2)

(c)

A-104

ty of that act, or since the date of the effec-

tiveness of this chapter, in an effort to avoid

the applicability of this article;

k. its members have an nexus of common

interest;

l. its membership policies include an element of

exclusiveness based on one (1) or more criteria

other than membership in a class against

whom discrimination is prohibited by this ar-

ticle; and

m. it does not offer or constitute facilities, spon-

sor activities, or create an environment where

business deals are often made and personal

contacts valuable for business purposes,

employment, and professional advancement

are formed; or

its character as an institution, club, or association is

such that, under the constitutional doctrines of

freedom of association (including expressive

association) and privacy prevailing in the law at the

time of the hearing, the Constitution of this state or

of the United States requires that Section 40C-102

not be applied against it.

(1) An application to be certified for inclusion in the

registry shall be in writing on a form prepared by

the Director and shall include all information

reasonably determined by the Director to be

necessary or useful to consideration of the

application.

A-105

(2) Each application shall be signed by a duly authoriz-

ed officer or agent of the applicant who shall attest

by oath or affirmation to the truth of its contents.

(d) Upon receipt of an application, the Director shall

assign it a date and time for public hearings which shall be

not sooner than four (4) weeks and not later than six (6)

weeks from the date of receipt of the application. Notice of

the application and the hearing, in a standard form which

shall be prescribed by the Director, shall be published in

the Official Journal, by the applicant and at its expense, at

least three (3) times, so that the first publication shall be

not more than twenty-eight (28) and not less than twenty-

one (21) days and so that the last publication shall be not

more than seven (7) and not less than two (2) days prior to

the hearing. Any interested person may appear at the hear-

ing to support or oppose the application, subject to such

reasonable regulations and time limits as the Director, or

his designee as presiding officer, may prescribe. The hear-

ing shall be conducted in accordance with the provisions of

the Administrative Procedures Act with respect to the

rules of evidence.

(e) Within seven (7) days of the conclusion of the hear-

ing, the Director shall notify the applicant and any in-

terested person who has requested such notice of his or her

determination to grant or deny certification for inclusion in

the registry. The decision of the Director shall be in

writing, shall state the reasons for his or her determination,

and shall become effective as a certification seven (7) days

after it is assigned by the Director.

(f) On his or her own motion, or upon the written

A-106

complaint of any interested person, the Director may in-

itiate proceedings for the removal of any institution, club

or accommodation from the registry. The motion or com-

plaint by which removal proceedings are commenced shall

be in a verified writing and shall set forth facts sufficient

to show that the respondent institution, club or accom-

modation is not distinctly private in character. The motion

or complaint shall be signed by the complainant or a duly-

authorized agent of the complainant who shall attest by

oath or affirmation to the truth of its contents.

(g) Upon the receipt of filing in the office of the Direc-

tor of such a motion or complaint, the Director shall assign

it a date and time for public hearings which shall be not

sooner than four (4) weeks and not later than six (6) weeks

from the date of receipt of the complaint. Notice of the com-

plaint and the hearing, in a standard form which shall be

prescribed by the Director, shall be published in the Of-

ficial Journal, by the complainant and at its expense, at

least three (3) times, so that the first publication shall be

not more than twenty-eight (28) and not less than twenty-

one (21) days and so that the last publication shail be not

more than seven (7) and not less than two (2) days prior to

the hearing. Any interested person may appear at the hear-

ing to support or oppose the complaint, subject to such

reasonable regulations and time limits as the Director, or

his designee as presiding officer, may prescribe. The hear-

ing shall be conducted in accordance with the provisions of

Administrative Procedures Act with respect to the rules of

evidence. Within seven (7) days of the conclusion of the

hearing, the Director shall notify the complainant, and any

interested person who has requested such notice, of his or

her determination to grant or deny continued certification

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for inclusion in the registry. The decision of the Director

shall be in writing, shall state the reasons for his or her

determination, and shall become effective seven (7) days

after it is signed by the Director. If a decision to deny con-

tinued certification becomes effective, the respondent shall

be removed from the registry immediately.

(h) An institution, club or accommodation may at

any time apply or reapply to be certified for inclusion in the

registry notwithstanding the fact that it may have been

denied certification or been removed from the registry in

the past. A motion or complaint seeking removal of a club

or institution from the registry shall be denied without a

hearing by the Director if a motion or complaint initiated

by the same person and setting forth the same or substan-

tially similar facts has been denied within the past six (6)

months. (M.C.S., Ord. No. 14,984, § 1, 12-19-91.)

Section 40C-104. Reserved.”

Section 40C-105. Exclusion based on disability.

Nothing in this article shall be construed to prohibit

a parading carnival krewe or other parading organization

from excluding a person with a disability from riding on a

float in a parade; provided, that an organization not ex-

empt under the provisions of Section 40C-101(b) may ex-

clude such a person only if the Director certifies in writing,

after consultation with the officers of the organization,

2 Section 1(1) of M.C.S., Ord. No. 15,058, adopted Feb. 6, 1992, repealed

§ 40C-104 in its entirety. Formerly, § 40C-104 pertained to registry of

nondiscriminatory entities and derived from § 1, of M.C.S., Ord. No.

14,984, adopted Dec. 19, 1991.

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A-108

with the excluded person, and with the Director of Health,

that permitting the person with a disability so to ride

would create a public safety or health hazard or would

cause an unreasonable burden of expense to the parading

krewe or other organization. Any legitimate increase in the

cost of procuring insurance may be considered when deter-

mining the reasonableness of proposed discrimination.

This section shall not authorize the exclusion of any person

from the other benefits of membership or participation in

such a krewe or organization not exempt under the provi-

sion of Section 40C-101(b), on the basis of disability.

(M.C.S., Ord. No. 14,984, § 1, 12-19-91; M.C.S., Ord. No.

15,197, § 4, 5-7-92.)

Section 40C-106. Operation of Article III with respect

to other laws.

(a) The provisions of this article, for so long as the

same remain in effect, shall supersede with respect to

discrimination in ‘“‘public accommodations” as defined in

this article, any and all conflicting or incompatible provi-

sions or applications of provisions of Article IV. No respon-

dent or defendant shall be required to defend against or

shall be held accountable or guilty of both a charge of

discrimination in public accommodations under this article

and a charge of discrimination in public accommodations

under Article IV if the charge arises out of the same alleged

discriminatory practice or acts, if being the intent of this

chapter that any discrimination in public accomodation

which is unlawful under both Article III and Article IV

shall be treated as a violation of this article such time as [a

complaint has been filed pursuant to this article.]

A-109

(b) The provisions of Subsections (e), (f) and (g) of Sec-

tion 40(c)-122 of Article IV shall apply to this article.

(c) No complaint shall be filed in Municipal Court

regarding discriminatory acts or practices which are pro-

hibited by Article III under [until] such time as a complaint

has been filed pursuant to the requirement of Article III

and a final disposition of the matter has been made by the

Commission. (M.C.S., Ord. No. 14,984, § 1, 12-19-91.)

Section 40C-107. Effective date of enforcement; Blue

Ribbon Committee on Carnival.

(a) During the first year following the effective date

of [Ordinance Number 14,984,] the ordinance by which this

article is adopted, no carnival krewe or parading carnival

organization or other organization organized or existing on

the effective date of this article for the primary or domi-

nant purpose of observing or participating in the carnival

season and no club or institution that falls within the scope

of Section 40C-101(b)(2) shall, under this article, be subject

to any enforcement action, penalty, prosecution, or liability

or denied any permit, right or privilege which it has hither-

to enjoyed.

(b) As soon as possible after the adoption of this arti-

cle, the Mayor shall appoint a citizen’s advisory committee,

to be known as the Blue Ribbon Committee on Carnival.

The Committee shall consist of two (2) members designated

by the Mayor, one (1) member designated by each of the

seven (7) Councilmembers and nine (9) members designated

by the Mayor’s Mardi Gras Coordinating Committee.

A-110

(c) By the three hundred thirtieth day following the

effective date of [Ordinance Number 14,984,] the ordinance

by which the article is adopted, the Blue Ribbon Commit-

tee on Carnival shall recommend in writing to the Mayor

and the Council any amendments to this chapter which

they believe appropriate to promote the interests of the ci-

ty in preserving the benefits of its traditional carnival and

promoting equal rights and opportunities for all. (M.C.S.,

Ord. No. 14,984, § 1, 12-19-91.)

Section 40C-108. Reserved.

Section 40C-109. Affidavit required; parades during car-

nival season.

Each applicant for any permit to parade during the

carnival season under Chapter 12A of this Code shall, at

the time of applying for the permit, file with the Depart-

ment of Police an affidavit of its captain or other officer of

commensurate rank, attesting that the applicant entity or

group has no written or unwritten provision in its charter,

by-laws, rules, regulations or policies which calls for the

refusal, withholding or denying of membership, or any of

the services, accommodations, advantages, facilities or

privilege offered by the respondent to members or others,

because of race, color, creed, religion, national origin, sex-

ual orientation or ancestry, or which unreasonably calls for

such discrimination on the basis of age, sex, physical condi-

tion or disability, and that the applicant and its members

will, except as otherwise authorized by Section 40C-111,

treat all proposals for membership in a nondiscriminatory

manner in accordance with the procedures contained in the

krewe’s by-laws and regulations. The filing of such an af-

A-111

fidavit shall be a prerequisite to the granting of the permit.

(M.C.S.., Ord. No. 15,197, § 5, 5-7-92.)

Section 40C-110. Specific enforcement provisions for

Section 40C-101, Institutions.

(a) The violation of this article by carnival krewes,

parading carnival organizations, other organizations

organized or existing for the primary or dominant purpose

of observing or participating in the carnival season and

clubs or institutions which fall within the scope of Section

40C-101 and which would not otherwise than under the pro-

visions thereof be considered as a ‘‘public accommodation”

under this article shall not constitute a misdemeanor and

shall not be subject to prosecution or punishment in the

Municipal Court, unless the violation arises from the

breach of a final, definitive and enforceable order of the

Commission or of an order embodying a conciliation agree

ment or unless the violation is the willful resitance, preven-

tion, impedance, or interference with the Commission or

any of its agents or representatives in the perfomance of its

duty under this chapter. Notwithstanding any other provi-

sions of this chapter, to the contrary, any violation of this

article by carnival krewes, parading carnival organizations,

other organizations organized or existing for the primary

or dominant purpose of observing or participating in the

carnival season and clubs or institutions which fall within

the scope of Section 40C-101 and which would not other-

wise than under the provisions thereof be considered as

“‘public accommodation” under this article, or by the of-

ficers or agents of any body in their capacity as such, which

does constitute a misdemeanor, shall be punishable only by

a mandatory fine of not less than one hundred

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A-112

dollars ($100.00) and not more than three hundred dollars

($300.00) and shall not be punishable by imprisonment.

(b) Neither the city nor the Commission shall be

obligated to initiate or intervene in any proceedings in any

Court for the purpose of enforcing this article or a final

order of the Commission against any carnival krewes,

parading carnival organizations, other organizations

organized or existing for the primary or dominant purpose

of observing or participating in the carnival season and

clubs or institutions which fall within the scope of Section

40C-101 and which would not otherwise than under the pro-

visions thereof be considered as a “‘public accommodation”’

under this article, unless the violation arises from the

breach of an order embodying a conciliation agreement or

unless the violation is the willful resistance, prevention, im-

pedance or interference with the Commission or any of its

agents or representatives in the performance of its duty

under this chapter. Nothing in this section shall preclude

any nonmunicipal party in interest from initiating such

proceedings.

(c) Whenever a Court of competent jurisdiction

issues an order of the Court for the enforcement of this arti-

cle or of an order of the Commission directed to a carnival

krewe, parading carnival organization, other organizations

organized or existing for the primary or dominant purpose

of observing or participating in the carnival season, or

clubs or institutions which fall within the scope of Section

40C-101, then during any period when said order is effec-

tive, said organization shall not be granted a permit for a

carnival parade during the carnival season, as required by

Section 12A-20 of this Code, unless a sworn affidavit is

A-113

submitted with the permit application by the captain,

president or officer of commensurate rank within the

organization stating that the court order has been complied

with and will continue to be complied with.

(d) Whenever a Court of competent jurisdiction

issues an order of court for the enforcement of this article

or of an order of the Commission directed to a carnival

krewe, parading carnival organization, other organizations

organized or existing for the primary or dominant purpose

of observing or participating in the carnival season, or

clubs or institutions which fall within the scope of Section

40C-101, said organization shall not be granted an alcoholic

beverage permit unless a sworn affidavit is submitted with

the permit application by the captain, president or officer

of commensurate rank within the organization stating that

the court order has been complied with and will continue to

be complied with. Subsection (d) shall not apply to an

alcoholic beverage permit for a business which either holds

or is applying for an occupational license issued by the

Department of Finance, nor to temporary alcoholic

beverage permits.

(e) The submission of a sworn affidavit pursuant to

subsections (c) or (d) which contains false statements, in ad-

dition to being subject to any other penalty provisions for

the making of false affidavits, shall be considered a misde-

meanor punishable by a mandatory fine of not less than one

hundred dollars ($100.00) and not more than three hundred

dollars ($300.00). (M.C.S., Ord. No. 15,058, § 1(2), 2-6-92.)

—— eS we

A-114

Section 40C-111. Preservation of traditional roles in car-

(a)

(1)

(2)

(3)

(4)

nival parading organization.

The Council finds that:

Carnival organizations have traditionally engaged

in parades, procession, tableaux, and other ac- '

tivities that have, in large part, a dramatic

theatrical character, involving elaborate costumed

role-playing by participants who frequently imitate

or portray the behavior of ancient or medieval court

life;

Although such traditional carnival activities most

often involve participation by both women and men,

the participants traditionally engage in courtly

roles defined and differentiated according to the sex

of the participants, as was the case in ancient and

medieval court life;

The preservation of the traditional mimicry of court

life is worthy of preservation as a significant aspect

of the common cultural heritage of all the people of

New Orleans;

Most women and men in the city who wish to find

ways of participating in carnival organizations can

do so, either as members or consorts of members in

the traditional krewes that restrict membership to

one or the other sex, or in one of the less traditional

organizations which admit both sexes to member-

ship; therefore, the Council finds that the tradi-

tional organizations by restricting their member-

A-115

ship to one sex do not significantly impair the abili-

ty of women or men to make business contacts,

secure professional advancement, or otherwise par-

ticipate in trade, commerce, the professions, or

public life in general.

(b) Nothing in this chapter shall prohibit any carnival

krewe, parading carnival organization, or other organiza-

tion organized or existing for the primary or dominant pur-

pose of observing or participating in the carnival season

from restricting its membership or any class of member-

ship to classes based on sex. (M.C.S., Ord. No. 15,197, § 6,

5-7-92.)

Sections 40C-119. Reserved.

ARTICLE IV. DISCRIMINATION IN PUBLIC

ACCOMODATIONS, EMPLOYMENT, AND REAL

ESTATE AND HOUSING. j

Section 40C-120. Definitions-Discrimination unlawful

practices.

The following words, terms and phrases, when used

in this article, shall have the meanings ascribed to them in

this section, except where the context clearly indicates a

different meaning:

(1) Commercial housing. Housing accommodations

held or offered for sale or rent by a real estate broker

or agent, or by any person pursuant to authoriza-

tion of the owner, by the owner or by a legal

representative of the owner.

(2)

(3)

(4)

(5)

(6)

A-116

Discrimination. Any difference in treatment in hir-

ing, referring for hire, promoting, training, in

membership in employee or labor organizations,

selling, leasing, rental or financing of housing, or in

rendering services, accommodations, advantages,

facilities, or privileges offered by a public facility or

place of public accommodation on the basis of race,

color, gender, marital status, age, creed, religion, na-

tional origin, ancestry, sexual orientation or

handicap.

Handicap. An impairment which substantially

limits one or more life activities or:

a. a record of such impairment; or

b. a perception of such an impairment.

Life activities. Functions such as caring for ones

self, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning and working.

Owner. Shall include curator, administrator, tutor,

executor, lessee, sublessee, signee, manager, agent

or any other person having the right or ownership of

possession or the authority to sell, rent or lease any

commercial housing, including the City of New

Orleans.

Person. An association, partnership, corporation

and governmental entity, as well as a natural per-

son. As applied to partnerships or other associa-

tions, “‘person’”’ includes their members and as ap-

A-117

plied to corporations, ‘“‘person’’ includes their

officers.

(7) Public accommodation. Any place or means of

transportation which is open to, accepts or solicits

the patronage of members of the general public, but

does not include any place which is a bona fide

private club where the accommodations, facilities

and services are restricted to the members of such

club and their guest.

(8) Public facility. Any facility owned, operated, or

managed by any governmental entity.

(9) Sexual Orientation. Homosexuality, heterosexuali-

ty or bisexuality. (M.C.S., Ord. No. 14,976, § 1,

12-12-91.)

Section 40C-121. Same—Unlawful practices.

It is unlawful for any person:

(1) To discriminate against any person, either directly

or indirectly, by refusing, withholding or denying to

such person any of the services, accommodations,

advantages, facilities or privileges offered by a

public facility or place of public accommodation, by

setting different rates, charges, identification pro-

cedures or requirements therefor, or by placing or

attempting to place any person in a separate section

or area of the premises or facilities of the public ac-

commodation, resort or amusement on the basis of

race, color, gender, marital status, age, creed,

(2)

(3)

(4)

(5)

A-118

religion, national origin, ancestry, sexual orienta-

tion, or handicap; provided that nothing contained

in this section shall prohibit the provision of

separate bathroom, restroom shower or similar

facilities for males and females.

To discriminate by failing or refusing to hire or by

discharging an individual, or otherwise to

discriminate against any individual with respect to

compensation, terms, conditions or privileges of

employment, to limit, segregate, or classify

employees or applicants for employment in any way

which would deprive or tend to deprive any in-

dividual of employment opportunities or otherwise

affect an individual status as an employee on the

basis of that individual’s race, color, gender, marital

status, age, creed, religion, national origin,

ancestry, sexual orientation, or handicap.

To discriminate in the selling, renting or leasing of

commercial housing or real estate on the basis of

race, color, gender, marital status, age, creed,

religion, national origin, ancestry, sexual orienta-

tion or handicap.

to publish, circulate, display, post or mail either

directly or indirectly, any written or printed com-

munication, notice or advertisement which

evidences an intent to violate directly or indirectly

any of the provisions of this section.

To aid, abet, incite, counsel or coerce the doing of

any act therein declared to be unlawful or to prevent

A-119

any person from complying with this section or any

rule, regulation or order issued pursuant to this sec-

tion. (M.C.S. Ord. No. 14,976, § 1, 12-12-91.)

Section 40C-122. Exclusions from Sections 40C-120 and

400-121.

Nothing in Sections 40C-120 and 40C-121 of this article

shall be construed to:

(1)

(2)

(3)

(4)

(5)

Restrict an employer’s right to require that an

employee meet bona fide job-related qualifications

of employment.

Authorize or require employers to establish affir-

mative action quotas based on sexual orientation.

To apply to any business, trade or occupation

employing fewer than eight (8) employees, or to any

unit in a residential structure containing not more

than four (4) units, if the owner maintains and oc-

cupies one of such units as his residence.

To apply to any religious corporation, religious enti-

ty, religious association, or religious organization,

or any non-profit corporation, or organization or

group, including charitable organizations, with

respect to the employment of individuals, or with

respect to the employment policies, practices and

procedures established by any such corporation, en-

tity, association, or society.

Make lawful any act that violates the Louisiana

Criminal Code.

A-120

(6) The provisions of this article shall not be read to

limit or affect in any way rights and privileges ex-

isting under state or federal law and the City of New

Orleans explicitly disavows its rights to any period

of exclusive jurisdiction over filed charges which

i may exist under state or federal law, including but

not limited to U.S.C., Section 2000(e), et seq.

(7) Notwithstanding anything herein expressed to the

contrary, nothing in this article shall be deemed or

construed to authorize or encourage the promotion

of sexual orientation in any public or private educa-

; tional institution or school, or to require the

4 teaching in any public or private educational in-

stitutional of sexual orientation. It is the intent of

this article to assure the rights of the citizens of this

city and all persons, particularly with respect to the

securing of housing and employment; this article

does not have for its purpose the establishment of

any public policy regarding the acceptability or

nonacceptability of sexual practice. (M.C.S., Ord.

No. 14,976, § 1,-12-12-91.)

ne Oe ida oe coerce Reve. ype

Section 40C-123. Enforcement and penalties.

Any violations of Sections 40C-120 and 40C-121,

shall prior to the initiation of a prosecution in Municipal

Court, be reported and processed in the manner specified

within Chapter 40C. In the event that Chapter 40C has no

enforcement provisions, or they are ruled unconstitutional,

then any violators of Sections 40C-120 and 40C-121 shall be

punishable in the same manner as specified in the

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A-121

Municipal Criminal Code, and more particularly by Section

42-1 through 42-25, inclusive, but in no event shall the

minimum penalty for any violation of Sections 40C-120 and

40C-121 be less than that specified in Section 42-5.1 of the

Municipal Criminal Code. (M.C.S., Ord. No. 14, 976, § 1,

12-12-91.)