ISBISTER v. BOY CLUB OF SANTA CRUZ INC

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Court of Appeal, First District, Division 4, California.

Victoria ISBISTER, a Minor, et al., Plaintiffs and Respondents, v. BOY'S CLUB OF SANTA CRUZ, INC., a corporation, et al., Defendants and Appellants.

A011814.

Decided: June 24, 1983

Robert E. Bosso, Sara Clarenbach, Adams, Levin, Kehoe, Bosso, Sachs & Bates, Santa Cruz, for defendants and appellants. Susan M. Popik, Diane E. Thompson, Rogers, Joseph, O'Donnell & Quinn, San Francisco, Susan L. Paulus, Berkeley, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern Cal., San Francisco, Edward F. Newman, Santa Cruz, for plaintiffs and respondents. Law Offices of Frank B. Blum, Jr., Frank B. Blum, Jr., Daly City, Alvarado, Rus & McClellan, Orange, Shadle, Hunt & Hagar, Ernest L. Hunt, Jr., Vista, Horvitz & Greines, Ellis J. Horvitz, Kent L. Richland, Encino, for amicus curiae in support of contentions of defendants and appellants. Ellen S. George, B. Scott Silverman, Lisbeth Jones, Morrison & Foerster, San Francisco, Ware, Fletcher & Friedenrich, Robert T. Russell, Palo Alto, for amicus curiae in support of contentions of plaintiffs and respondents.

The Boys' Club of Santa Cruz appeals from a judgment awarding injunctive relief and damages to respondent minors under the Unruh Civil Rights Act (Civ.Code, §§ 51, 52).   The determinative issue on appeal is whether under the evidence the Boys' Club can be a “business establishment” within the meaning of the statute.

Appellant Boys' Club, a nonprofit corporation run by an adult board of directors and by paid staff, owns and operates a facility which contains a gymnasium, indoor competition-size swimming pool, snack bar, craft areas, and other features.   The facility and its program are unique in northern Santa Cruz County.   Any boy in Santa Cruz may join the Boys' Club and use its facilities by applying and paying a nominal membership fee;  however, membership is restricted to males.   No program is being offered to girls in the area similar to that being offered to boys by the Boys' Club.

In 1977, the Boys' Club rejected, solely on the basis of sex, membership applications submitted by several girls.   The trial court found that denial of membership in the Boys' Club on the basis of sex violated the Unruh Act, causing harm to the rejected girls and depriving Boys' Club members of a nondiscriminatory environment.   The court rendered judgment permanently enjoining the Boys' Club from denying membership or access to its facilities on the basis of sex.

Appellants contend that the trial court erred when it determined that the Boys' Club is a “business establishment” under the Unruh Act.   This issue—whether a nonprofit organization which owns and operates a community service facility for boys is a “business establishment” within the meaning of the Act—has not been considered in any reported decision.

 The Boys' Club contends that it is not subject to the restrictions of the Unruh Act because the plain meaning of the phrase “business establishments,” used in the statute, necessarily excludes a charitably funded, volunteer youth organization such as the Boys' Club.   A court must give effect to statutes according to the usual, ordinary import of the language used therein.  (Cal. Tchrs. Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856;  Sanchez v. Alexis (1982) 131 Cal.App.3d 709, 715–716, 182 Cal.Rptr. 593.)   If the statutory language is clear and unambiguous, there is no need for construction.  (Atlantic Richfield Co. v. Workers' Comp. Appeals Bd. (1982) 31 Cal.3d 715, 726, 182 Cal.Rptr. 778, 644 P.2d 1257;  People v. Chadd (1981) 28 Cal.3d 739, 746, 170 Cal.Rptr. 798, 621 P.2d 837, cert. den. 452 U.S. 931, 101 S.Ct. 3066, 69 L.Ed.2d 431.)   The dictionary and common sense definitions submitted by appellant and amici do suggest that “business” usually connotes a commercial and profitmaking enterprise, but the language of the Act does not sharply demarcate the types of organizations to be regulated as “business establishments,” and there is no settled meaning for that phrase in the present context.   When interpreting a statute with unclear provisions, the fundamental rule is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.  (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186;  Cal. Tchrs. Assn. v. San Diego Community College Dist., supra, 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856;  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)

Appellants contend that the Legislature did not intend the Unruh Act to apply to charitable and volunteer organizations or to agencies that provide services to members of particular religious and minority groups.   Nondiscrimination statutes of some other jurisdictions do cover organizations similar to the Boys' Club (see, e.g., Smith v. Young Men's Christian Ass'n of Montgomery (5th Cir.1972) 462 F.2d 634;  United States v. Slidell Youth Football Ass'n (E.D.La.1974) 387 F.Supp. 474;  National Org. for W., Essex Ch. v. Little League Baseball, Inc. (1974) 127 N.J.Super. 522, 318 A.2d 33).   However, these statutes do not contain the “business establishments” language found in the Unruh Act, which appears to be “unique among the states.”  (Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute—A Problem in Statutory Application (1959) 33 So.Cal.L.Rev. 260, 262.)   We must therefore determine whether the California Legislature intended an organization like the Boys' Club to be covered by the “business establishments” language of the Unruh Act.

 The legislative history of a statute, along with the wider historical circumstances of its enactment, are legitimate aids to divining statutory purpose.  (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836.)   The legislative history of the Unruh Act consists solely of successive amended versions of a bill introduced in 1959 to revise Civil Code section 51.   No committee reports, published hearings or floor debates have been preserved.  (Horowitz, supra, 33 So.Cal.L.Rev. at p. 265.)

The predecessor statute 1 of section 51, enacted in 1897, codified common law decisions which had imposed an obligation of nondiscrimination on enterprises “affected with a public interest”;  these were enterprises which “held themselves out” as providing goods or services to the community, such as blacksmiths, food sellers, innkeepers and tailors.  (In re Cox (1970) 3 Cal.3d 205, 212–213, 90 Cal.Rptr. 24, 474 P.2d 992.)   The 1897 statute applied to the specified entities and to “all other places of public accommodation or amusement․” 2  The ensuing decisions narrowly limited the scope of entities which provided public accommodation.  (E.g., Stoumen v. Reilly (1951) 37 Cal.2d 713, 234 P.2d 969 [bar and restaurant];  Suttles v. Hollywood Turf Club (1941) 45 Cal.App.2d 283, 114 P.2d 27 [racetrack clubhouse];  Evans v. Fong Poy (1941) 42 Cal.App.2d 320, 108 P.2d 942 [bar-saloon];  Lambert v. Mandel's of California (1957) 156 Cal.App.2d Supp. 855, 319 P.2d 469 [shoe store].)   Two of the cases involved recreational facilities comparable to those operated by appellant:  McClain v. City of South Pasadena (1957) 155 Cal.App.2d 423, 318 P.2d 199 [section 51 applies to public municipal swimming pool];  Gardner v. Vic Tanny Compton, Inc. (1960) 182 Cal.App.2d 506, 6 Cal.Rptr. 490 [gymnasium limited to members is not a place of public accommodation or amusement].

In 1959, the statute (as well as Civ.Code, § 52, which sets forth penalties for violations of § 51) was revised as pertinent to this case and designated the Unruh Civil Rights Act.   The Legislature revised the statute because of its concern that the courts, by “narrowly defining the kinds of businesses that afforded public accommodation, were improperly curtailing the scope of the public accommodations provisions.”  (In re Cox, supra, 3 Cal.3d 205, 214, 90 Cal.Rptr. 24, 474 P.2d 992.)   A bill was introduced in the Assembly on January 21, 1959, which would have prohibited discrimination by “public or private groups, organizations, associations, business establishments, schools and public facilities.” 3  (Assem. Bill No. 594 [1959 Reg.Sess.] § 1.)   The bill was amended in the Assembly Judiciary Committee on March 24, 1959, to exempt “institutions organized primarily for the purpose of, and which practice, the furthering of a specific sectarian religious belief or a specific national culture, and which limit their membership or affiliations to only those persons with a corresponding religious belief or national derivation.”   This exception was removed by the Judiciary Committee in a March 30, 1959, amendment which also eliminated all references to “private groups.”  (Fin. Calendar of Leg. Business, 1959 Reg.Sess., p. 443.)   Further amendments eliminated the references to the several entities prohibited from discriminating, and the statute as finally enacted applied only to “all business establishments of every kind whatsoever.” 4

The 1959 bill was introduced to broaden the scope of businesses subject to the old nondiscrimination statute.  (In re Cox, supra, 3 Cal.3d 205, 214, 90 Cal.Rptr. 24, 474 P.2d 992.)   The term “business establishments” was thus used by the Legislature in the broadest sense reasonably possible.  (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 468, 20 Cal.Rptr. 609, 370 P.2d 313.)   The statute as amended in 1959 has been held to apply to a wide range of businesses (e.g., O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427 [condominium development];  Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115 [apartment complex], cert. den. 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111;  Burks v. Poppy Construction Co., supra, [sale of real estate];  Swann v. Burkett, supra, 209 Cal.App.2d 685, 26 Cal.Rptr. 286 [housing rental];  In re Cox, supra, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992 [shopping center] ), but has not been extended to cover a community nonprofit organization such as the Boys' Club.

 Significantly, the Legislature rejected the language in the bill as originally introduced, which would have prohibited discrimination by private groups, organizations, associations and schools.   The rejection of a specific provision contained in an act as originally introduced indicates that the Legislature does not intend the bill to include the rejected provision.  (See People for Environmental Progress v. Leisz (C.D.Cal.1974) 373 F.Supp. 589, 592;  Madrid v. Justice Court (1975) 52 Cal.App.3d 819, 825, 125 Cal.Rptr. 348;  People v. Superior Court (1962) 199 Cal.App.2d 303, 310, 18 Cal.Rptr. 557;  2A Sutherland Statutory Construction (4th ed. 1973) Extrinsic Aids—Legislative History, § 48.18, p. 224.)   The Legislature attempted to restrict the application of the bill as originally introduced by inserting a religious and “national” groups exception, which was removed only after the subsequent rejection of all references to private groups, organizations, and associations.  “The broadened scope of business establishments in the final version of the bill, in our view, is indicative of an intent by the Legislature to include therein all formerly specified private and public groups or organizations that may reasonably be found to constitute ‘business establishments of every type whatsoever.’ ”  (O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 795–796, 191 Cal.Rptr. 320, 662 P.2d 427.)   Those specified groups which cannot reasonably be considered business establishments, such as nonprofit volunteer, fraternal, sectarian, charitable or cultural organizations, are not within the ambit of the statute.

Respondents and amici contend that because the Legislature enacted two other statutes in 1959—the Fair Employment Practices Act (Stats.1959, ch. 121, § 1, p. 1999) and the Fair Housing Law (Stats.1959, ch. 1681, § 1, p. 4074)—which contained express exclusions for charitable organizations such as the Boys' Club, the Legislature must have intended the Unruh Act, which contains no express exclusion, to apply to such organizations.   All three statutes did deal with nondiscrimination, but they apply to different situations.   The Fair Employment Practices Act is directed at employers, and the Fair Housing Law is directed at publicly assisted housing accommodations.   A charitable organization such as the Boys' Club can be an employer and can provide housing, so an express exclusion for such organizations was necessary.   However, the Legislature might well have intended the term “business establishments” (which was not present in the other two statutes) to exclude charitable organizations by definition, making an express exclusion unnecessary.   Indeed, the fact that such exclusions appeared in other statutes in pari materia may just as well indicate that the Legislature intended charitable organizations to be excluded from all nondiscrimination statutes.  (See 2A Sutherland Statutory Construction (4th ed. 1973) Reference to Related Statutes, § 51.03, pp. 298–300.)

The decisions which have interpreted the “business establishments” language do not refute appellant's claim that the Unruh Act was not intended to cover an organization like the Boys' Club.  Burks v. Poppy Construction Co., supra, which held that the Legislature used the language in the broadest sense reasonably possible, was nonetheless decided in a commercial context.   In holding that the Legislature did not intend the Unruh Act to prohibit discrimination in employment, the court stated:  “[T]here is no indication that the Legislature intended to broaden the scope of section 51 to include discriminations other than those made by a ‘business establishment’ in the course of furnishing goods, services or facilities to its clients, patrons or customers.  [Citation.]”  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 500, 86 Cal.Rptr. 88, 468 P.2d 216.)   As appellants point out, the court in Marina Point, Ltd. v. Wolfson, supra, which held that the Unruh Act protects minor children from arbitrary discrimination, similarly refers to the Act as applying to “business enterprises” or “entrepreneurs” who deal with “customers” and “patrons.”  (30 Cal.3d at pp. 725–740, 180 Cal.Rptr. 496, 640 P.2d 115;  see also People v. Cox, supra, 3 Cal.3d at p. 218, 90 Cal.Rptr. 24, 474 P.2d 992:  “[T]hose who perform a significant public function may not erect barriers of arbitrary discrimination in the marketplace.”   [Emphasis added.] )

The Supreme Court has recently held a nonprofit condominium development association to be a “business establishment” within the meaning of the act, stressing that defendant association had “businesslike attributes.”   Moreover, the association performed all the “customary business functions” of a landlord.  (O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 796, 191 Cal.Rptr. 320, 662 P.2d 427.)   The association employed a professional property management firm, obtained insurance for all owners, repaired common areas and facilities, collected assessments, and enforced rules and regulations for the condominium development—in short, its function included protecting and enhancing the economic value of the project.

Appellant Boys' Club is not a business which receives compensation for providing services to clients, patrons or customers.   The Boys' Club does not have a “businesslike purpose” and does not perform the economic functions of a landlord or a merchant.   Rather, it is a nonprofit agency which offers programs and facilities for a nominal fee to its members.   It is thus not reasonably possible to extend the term “business establishments” to cover the Boys' Club.   To do so would so broaden the term “business” as to render it meaningless.   Such a construction is to be avoided.  (People v. Nevarez (1982) 130 Cal.App.3d 388, 397, 181 Cal.Rptr. 691;  Lee v. Board of Administration (1982) 130 Cal.App.3d 122, 129, 181 Cal.Rptr. 754.)   The Unruh Act does not apply to such an organization.

Respondents contend that all organizations considered to be places of public accommodation and amusement within the meaning of the pre-1959 version of the statute are covered by the present Act, and that the Boys' Club facility is such a place of public accommodation.   The court in Swann v. Burkett, supra, 209 Cal.App.2d 685, 26 Cal.Rptr. 286, did state:

“It will be noted that prior to 1959, the only places as to which discrimination was prohibited were places of amusement or ‘of public accommodation.’  Section 51 covers a much broader field—‘all business establishments of every kind whatsoever.’   This, of course, would include the places of amusement and of public accommodation theretofore mentioned, as they undoubtedly are business establishments.”  (209 Cal.App.2d at p. 690 [26 Cal.Rptr. 286];  see also 34 Ops.Cal.Atty.Gen. 230, 231–232 [language of the 1959 amendment shows legislative intent to broaden the application of section 51 to cover the entities listed in that section prior to 1959 as well as all other business enterprises].)

This language from Swann can be seen as part of the court's holding that the scope of businesses subject to the Act should be as broad as possible and should include business enterprises other than those specifically listed as places of public accommodation in the pre-1959 statute.   But even a place of public accommodation is not covered by the Unruh Act if it is not also a “business establishment.”

 The legislative history reviewed above also refutes respondents' arguments.   A substantial change in the language of the statute or the deletion of an express provision suggests that a change of meaning was intended.  (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659, 147 Cal.Rptr. 359, 580 P.2d 1155;  Mazzola v. City & County of San Francisco (1980) 112 Cal.App.3d 141, 152, 169 Cal.Rptr. 127.)   As the court noted in In re Cox, supra, the Legislature substituted the “business establishments” language for the public accommodation provision in order to broaden the scope of businesses subject to the Act.  (3 Cal.3d at p. 214, 90 Cal.Rptr. 24, 474 P.2d 992.)   However, the “business establishments” language is also more specific, since a place affording public accommodation can be owned by a business establishment, or by a nonprofit, charitable, or public agency.   The original version of the statute applied where a restricted type of service was being offered (“places of public accommodation or amusement”);  the 1959 amendment applies to a greatly broadened set of entities (“business establishments” only).   The presumption that the Legislature intended a change in the law is strengthened where the new provisions are more specific.  (See generally, Fleming v. Kent (1982) 129 Cal.App.3d 887, 892, 181 Cal.Rptr. 361.)   An entity is not subject to the restrictions of the Unruh Act, even if it is a place of public accommodation, unless it is in the category of “all business establishments of every kind whatsoever.”

 Whether or not the trial court was correct in determining in its conclusions of law that the Boys' Club is a place of public accommodation the club is, under the facts as found by the court, not a “business establishment”;  thus it is not subject to the restrictions of the Unruh Act.

Professor Horowitz suggests that “business establishments” are those entities which enter into nongratuitous relationships with other persons, those relationships being relatively noncontinuous, nonpersonal and nonsocial.   (33 So.Cal.L.Rev. at p. 289.)   Services and facilities are provided by the Boys' Club for a nominal fee of $3.25 per year;  the relationship between the Boys' Club and its members is essentially gratuitous.   The purpose of the Boys' Club—to help boys develop citizenship, leadership, health and fitness, personal adjustment and development of the individual, value development, inter-group understanding, and so on—is primarily to provide services of a personal and social nature, and the relationship between the Boys' Club and its members can be so characterized.   Boys may remain members for years, and the relationship is thus continuous.

We recognize that if an organization such as the Boys' Club is excluded from the restrictions of the Unruh Act many cultural, fraternal, sectarian, volunteer and charitable organizations may offer services and facilities restricted to the specific groups they serve.   Arbitrary discrimination by such organizations is not prohibited by the Act.   For example, the Act does not presently prevent a charitable organization from systematically and arbitrarily refusing membership on the basis of race or religion.   Obviously, these anomalies can be resolved by legislative action.

Nondiscrimination statutes in some other jurisdictions already do, we recognize, apply to all places of public accommodation, with specified exceptions.   The Federal Civil Rights Act of 1964 (42 U.S.C., § 2000a et seq.), for example, prohibits discrimination or segregation in “any place of public accommodation” on the ground of race, religion or national origin, but does not apply to private clubs or establishments not open to the public.   Under a new statute modeled on section 2000a, a charitable organization could not arbitrarily deny service or membership on the basis of gender, race or religion.   Since the ultimate purpose of the Unruh Act is to prevent the denial of otherwise publicly available facilities, goods and services on an arbitrary and discriminate basis, new legislation could well modify the “business establishments” language to include all entities which serve the public.   Such a change, however, calls for legislative, not judicial, action.

To summarize, the Unruh Act applies to all entities that can be reasonably characterized as “business establishments of every kind whatsoever” (including any and all commercial and business organizations, entities, enterprises or entrepreneurs, which have a “businesslike purpose” and which perform “customary business functions” by furnishing goods, services, or facilities, for compensation, to customers, clients or patrons);  it does not apply generally to noncommercial entities (such as charitable, volunteer and community service agencies, fraternal societies, clubs and organizations that serve particular religious, ethnic or cultural groups).   The present record contains no evidence that appellant Boys' Club is a “business establishment” subject to the restrictions of the Unruh Act.

The judgment is reversed.

I respectfully dissent.

I.

The majority's holding today excludes the Boys' Club of Santa Cruz and therefore most nonprofit charitable service organizations from the operation of the Unruh Civil Rights Act.  (Civil Code, § 51.) 1  What this means is that services such as the Salvation Army lunch line or free legal advice offered by nonprofit law offices may be restricted on the basis of race, sex, religion, or any other arbitrary classification.   Admitting that its holding allows such organizations to exclude girls, black boys, or Methodists, the majority suggests that the remedy lies in legislative halls.

In my judgment the remedy has already come from that place more than 20 years ago, and that remedy is the Unruh Civil Rights Act we construe today.   It protects users of facilities, services and goods in this state against arbitrary discrimination.  (In re Cox (1970) 3 Cal.3d 205, 214, 90 Cal.Rptr. 24, 474 P.2d 992.)

Who are such persons protected against?  “․ [A]ll business establishments of every kind whatsoever.”  (§ 51.)   A more inclusive reach is difficult to imagine.   But more formidable is the task the majority has taken today:  attempting to demonstrate that the Boys' Club of Santa Cruz somehow does not fit within that grasp, that is, the Boys' Club of Santa Cruz is somehow not a business establishment of some kind.

It is not necessary to delve into arcane rules of statutory construction or to examine legislative entrails to figure out what the Legislature meant to do.   Basic rules suffice.   The first and most fundamental device for determining legislative intent is to turn to the words of the statute and to give effect to them by the usual, ordinary import of the language employed.  (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   One need not be a semanticist to understand that the Legislature was going out of its way to be all inclusive in using the same words to describe “business establishments” that monks of old employed to describe the powers of the almighty:  “all” and of “every kind whatsoever.”   But if the drift is not clear then the best guide to statutory interpretation of a state statute is the guidance of the highest court of the state.   If one turns to the thirty-third volume of California Reports Third, the instructions are unmistakable:  interpret the words “business establishments” in the “ ‘broadest sense reasonably possible.’ ”  (O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795, 191 Cal.Rptr. 320, 662 P.2d 427.)

The question then becomes:  in the broadest sense reasonably possible is the Boys' Club of Santa Cruz a business of some kind?   Nothing is pointed to that distinguishes the Boys' Club of Santa Cruz's operation or facilities from hundreds of businesses offering athletic or recreational facilities except that here the business is nonprofit.2  That distinction the Supreme Court tells us, does not matter:  profit-seeking is not a requirement under the act.  (O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d at p. 796, 191 Cal.Rptr. 320, 662 P.2d 427.)

Ambiguity is not added by examining the legislative history of the Unruh Civil Rights Act which consists only of the successively amended versions of a 1959 bill which amended section 51.   As originally introduced, the bill read in part:  “ ‘All citizens within the jurisdiction of this State, no matter what their race, color, religion, ancestry, or national origin, are entitled to the full and equal admittance, accommodations, advantages, facilities, membership, and privileges in, or accorded by, all public or private groups, organizations, associations, business establishments, schools, and public facilities;  to purchase real property;  and to obtain the services of any professional person, group or association.’ ”  (See Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute—A Problem in Statutory Application (1960) 33 So.Cal.L.Rev. 260, 265, fn. 31.)   Subsequent amendments first changed the enumeration of subject entities and then deleted all reference to them, resulting in the “business establishments” language before this court.3

In O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d at pages 795–796, 191 Cal.Rptr. 320, 662 P.2d 427, the California Supreme Court finds the broadened scope of business establishments in the final version of the bill “indicative of an intent by the Legislature to include therein all formerly specified private and public groups or organizations that may reasonably be found to constitute ‘business establishments of every type whatsoever.’ ”

An additional, strong indication that the Legislature in the 1959 session intended to include organizations such as the Boys' Club of Santa Cruz within the scope of those regulated in the Unruh Civil Rights Act is found in the Legislature's actions in two other statutes prohibiting discrimination passed during the same session:  the Fair Employment Practices Act (FEPA) and the Fair Housing Law.   The FEPA as enacted contained an express exclusion for an employer who was a social club, fraternal, charitable, educational or religious association or corporation not organized for profit.  (Formerly Lab.Code, § 1413, subd. (d), now Gov.Code, § 12926, subd. (c).)  In similar fashion the Fair Housing Law specifically excluded housing operated by nonprofit religious, fraternal, or charitable associations or corporations.  (Formerly Health and Saf.Code, § 35710, subd. (f), now Gov.Code, § 12927.)

Thus, the Legislature showed that it knew how to make a specific exclusion for nonprofit corporations such as the Boys' Club of Santa Cruz and it made such exclusions twice in the same session.   That it saw fit not to use any of this language of exclusion in the Unruh Civil Rights Act indicates that it intended what it said when it described the reach of the Unruh Civil Rights Act to include “all business establishments of every kind whatsoever.”

In the instant case the trial court specifically found that the Boys' Club of Santa Cruz was subject to the Unruh Civil Rights Act “because it was a place of public accommodation or amusement”, designations that are included within the meaning of “business establishments of every kind whatsoever.”  (Swann v. Burkett (1962) 209 Cal.App.2d 685, 690, 26 Cal.Rptr. 286.)   Conceding that the facts at hand cannot be distinguished from those found in federal and sister-state cases to be public accommodations (see, e.g., United States v. Slidell Youth Football Ass'n. (E.D.La.1974) 387 F.Supp. 474;  National Org. for W., Essex Ch. v. Little L. Base., Inc. (N.J.1974) 127 N.J.Super. 522, 318 A.2d 33, affd. (N.J.1974) 67 N.J. 320, 338 A.2d 198 4 ) the majority opinion reasons that the Unruh Civil Rights Act is more restrictive than the statutes involved in those decisions.   The majority's notion is that it is not sufficient that an entity be a public accommodation or a public amusement, it must also qualify as a “business establishment.”   Legislative history is to the contrary.   Prior to 1959 places of amusement and public accommodation were specifically mentioned in the statute.   In 1959, the current catchall “business establishments of every kind whatsoever” language was substituted.   (Swann v. Burkett, supra, 209 Cal.App.2d at p. 690, 26 Cal.Rptr. 286;  O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d at pp. 795–796, 191 Cal.Rptr. 320, 662 P.2d 427.)   There is no evidence that the changes in 1959 were intended to make section 51 operate more narrowly than its predecessor.   To the contrary, it was the restrictive interpretation of the pre-1959 civil rights act which provoked the Legislature to expand the Unruh Civil Rights Act's operation.  (In re Cox, supra, 3 Cal.3d at p. 214, 90 Cal.Rptr. 24, 474 P.2d 992.)   Thus, as a public accommodation the Boys' Club of Santa Cruz falls within the operation of the Unruh Civil Rights Act.

In the fallout from the instant decision there are two conclusions reached by the majority which can be used as understandable guidelines by those who wish to engage in arbitrary discrimination without running afoul of the Unruh Civil Rights Act:  (1) nonprofit volunteer, fraternal, sectarian, charitable or cultural organizations are not within the ambit of the statute;  and (2) a business-like purpose cannot be found if such a nonprofit group is merely offering programs and facilities for a nominal fee to its members.

The first test allows the Klu Klux Klan or neo-Nazi's to engage in the nonprofit, volunteer and fraternal offering of athletic facilities to some white children to combat the rise in juvenile delinquency.   I find it difficult to believe that was or is the legislative intent behind the Unruh Civil Rights Act.

The second touchstone seems to center upon whether the fee is nominal.   Thus the wealthy organization which can afford to discriminate will be allowed to do so.   But only those clubs which like the Boys' Club of Santa Cruz have wealthy patrons who prefer to confer largess in a sexually discriminatory fashion will be free under the majority analysis to discriminate.   Unless we are to presume that the Unruh Civil Rights Act was meant to insulate a select few from the 20th century, it is impossible in my judgment to come to the interpretation of the statute this court makes today.

The trial court understood the clear meaning of the Unruh Civil Rights Act:  community services regardless of their source are to be provided in accordance with the legislative mandate of equal treatment for all.   Perhaps the violation would be clearer if the Boys' Club of Santa Cruz had discriminated on the basis of race, not sex.   But that lack of clarity is not the fault of the language of the statute.   Instead, the difficulty is the long and well ingrained tradition of women's dependency which even today causes statutory recognition of the equality of women to have a strange and unreal ring to it.

I would affirm the judgment.

FOOTNOTES

FOOTNOTE.  

1.   Stats.1897, ch. 108, p. 137.

2.   Until 1959 the statute provided:  “All citizens within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eating-houses, places where ice cream or soft drinks of any kind are sold for consumption on the premises, barber shops, bath houses, theaters, skating rinks, public conveyances and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law, and applicable alike to all citizens.”  (Stats.1897, ch. 108, p. 137, as amended by Stats. 1919, ch. 210, § 1, p. 309;  Stats. 1923, ch. 235, § 1, p. 485.)

3.   See Horowitz, supra, 33 So.Cal.L.Rev. at pp. 262–271, for the complete text of successive amendments to the bill.   See also Swann v. Burkett (1962) 209 Cal.App.2d 685, 690–692, 26 Cal.Rptr. 286, for a review of the legislative history.

4.   The 1959 amendment provided:  “This section shall be known, and may be cited, as the Unruh Civil Rights Act.“All citizens within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.“This section shall not be construed to confer any right or privilege on a citizen which is conditioned or limited by law or which is applicable alike to persons of every color, race, religion, ancestry, or national origin.”   (Stats.1959, ch. 1866, § 1, p. 4424.)The Act was amended in 1961 to substitute “person” for “citizen” throughout (Stats.1961, ch. 1187, § 1, p. 2920) and again in 1974 to include sex as a prohibited basis for discrimination (Stats.1974, ch. 1193, § 1, p. 2568).Section 51 in its present form thus provides in relevant part:  “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

1.   Unless otherwise indicated, all further statutory references are to the Civil Code.

2.   The trial court found that the Boys' Club of Santa Cruz is a nonprofit corporation.   Those facilities are operated and managed by an adult board of directors, by officers of the corporation, and by paid staff.   The facility contains a gymnasium, an indoor competition-size swimming pool, games areas, craft and woodworking rooms, a library, and a snack bar.   Any child in Santa Cruz between the ages of 8 and 18 can join the Boys' Club of Santa Cruz and use the facilities simply by completing an application form and paying a nominal yearly fee.   The only restriction placed on potential members is that they must be male.   There is no other program being offered for girls in northern Santa Cruz which is similar to that offered by the Boys' Club of Santa Cruz.

3.   The entities prohibited from discriminating were revised from the language appearing in the bill's first draft to a listing of entities in subsections, in which the clause relating to the purchase of real property was dropped;  “business establishments” was modified by “all” and “of every kind whatsoever”;  memberships in professional and business associations were added;  schools were modified to exclude those whose purpose was the furthering of a particular religious belief;  and organizations providing benefits and receiving tax advantages or government assistance were added.  (See Horowitz, op. cit., supra, 33 So.Cal.L.Rev. at pp. 266–267, fn. 33.)The schools section was later changed to include “primarily” schools offering business and vocational training;  and charitable institutions were amended to those receiving direct government subvention.  (Id., at p. 268, fn. 35.)   The subsections dealing with obtaining professional services, memberships in professional organizations and benefits from charitable institutions were dropped in the next to final version of the bill.  (Id., at p. 269, fn. 36.)

4.   The Little League court hammers home what it means to be a public accommodation and its description fits here:  “[T]he hallmark of a place of public accommodation [is] that ‘the public at large is invited,’ and ․ [the] Little League issued an invitation to all boys in communities having local leagues․  [M]embership organizations, ․ are nevertheless places of public accommodation if, as Little League does, they offer advantages and facilities on the basis of a general, public invitation to join.  [¶] ․  The law is remedial and should be read with an approach sympathetic to its objectives.  [Citations.]  ․  If this organization were not deemed a place of public accommodation it would be free to discriminate on the basis of race or religion as well as sex․  [¶]  Little League is a public accommodation because the invitation is open to children in the community at large, with no restriction (other than sex) whatever.”  (Id., 318 A.2d at pp. 37–38.)

CHRISTIAN, Associate Justice.* FN* Under assignment by the Chairperson of the Judicial Council.

CALDECOTT, P.J., concurs.