KOIRE v. METRO CAR WASH

Reset A A Font size: Print

Court of Appeal, Fourth District, Division 3, California.

Dennis KOIRE, Plaintiff and Appellant, v. METRO CAR WASH, State College Car Wash, Defendants and Respondents.

G000233.

Decided: December 27, 1984

Wallin, Roseman & Talmo and Ronald R. Talmo, Tustin, for plaintiff and appellant. William A. Woodyard, Tustin, for defendant and respondent Metro Car Wash. William A. Elliott, Santa Ana, for defendant and respondent State College Car Wash.

OPINION

Does the Unruh Civil Rights Act preclude private businesses from offering price discounts (Civ.Code, § 51)?   On the facts of this case at least, we think not.

I

In the spring of 1979, Dennis Koire embarked on a crusade of sorts.   He traversed Orange County by day visiting car washes advertising special “Ladies' Day” prices and demanded the advertised discount.   He was usually told to return on the day of the week male customers received a similar reduction.   By night, Koire haunted bars and clubs, searching for establishments that waived or reduced admission or cover charges for females.

After several months of collecting this unusual mix of defendants, car washes and nightclubs, Koire brought an action for injunctive relief, damages, and attorneys fees based on alleged violations of the Unruh Civil Rights Act (Civ.Code, § 51).1  He eventually proceeded to trial against seven car washes and one nightclub, “Jezebel's.”

The car washes offered discounts to both men and women, but on different days of the week.   Jezebel's waived its usual two dollar cover charge one night a week for women, Thursday, and occasionally would issue free passes to men on other evenings.   Experience proved more patrons of both sexes appeared when the “Ladies' Night” promotion was in effect;  and gross proceeds were, on the average, quadrupled on those nights.

All defendants prevailed at trial.   The court found, “The evidence shows ‘Ladies[’] Day' is simply intended to encourage women to patronize Defendant's [sic ] establishments, and it is not denied the practice has furthered that purpose.   In addition, there has been no showing the regular prices which men pay are arbitrary, unfair or unreasonable.   Therefore the Court finds no arbitrary exclusion of men in violation of the Unruh Act ․”  Only two defendants, both car washes, have responded to Koire's appeal from the judgment.

II

Discriminatory practices which exclude or tend to discourage protected classes from the premises of a particular business are barred by section 51.5 of the Civil Code, which provides in part, “No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, refuse to buy from, sell to, or trade with any person in this state because of the race, creed, religion, color, national origin, or sex of such person ․”  Koire concedes “Ladies' Day” prices do not exclude any particular class of person from commercial enterprises and, as we shall discuss, failed to prove mens' use of the defendant car washes or Jezebel's was discouraged by the discounts.   But he insists gender based promotional discounts deny “full and equal advantages and privileges on the basis of sex ․” and are per se violations of the Act.   We disagree.

Koire places his reliance on cases which deal solely with the exclusion of a class of persons as the result of arbitrary discrimination.  (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115 [children from rental housing];  In re Cox (1970) 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992 [individuals with long hair and unconventional dress from a shopping mall];  Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, 227 P.2d 449 [a person convicted of off-track bookmaking from a race track];  and Easebe Enterprises, Inc. v. Rice (1983) 141 Cal.App.3d 981, 190 Cal.Rptr. 678 [males from a nightclub during performances by male exotic dancers].   See also Hales v. Ojai Valley Inn & Country Club (1977) 73 Cal.App.3d 25, 140 Cal.Rptr. 555 [men with leisure suits and no ties from restaurant where women in similar suits not required to wear ties] and Rolon v. Kulwitzky (1984) 153 Cal.App.3d 288, 289, 200 Cal.Rptr. 217 [lesbian couples from seating in semiprivate restaurant booths].)   The issue here, however, is merely preferred treatment for women on certain days in the form of petty price discounts, not exclusion of men, or even arbitrary discrimination against them of the sort which might reasonably be expected to discourage their patronage because of the size or nature of the benefit not offered to them.

 As to the car wash defendants, Koire has no viable argument that there was any discrimination at all.   Men were allowed an identical discount on different days of the week.   There is no claim men in general were somehow disadvantaged by the days selected for these events and no evidence the discounts caused prices to be raised for those ineligible for them on a particular day.   No case to our knowledge has discovered a per se rule of discrimination in business promotions based on gender.   Rather, “the Unruh Act prohibits a business establishment from engaging in any form of arbitrary discrimination ․”  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 736, 180 Cal.Rptr. 496, 640 P.2d 115, emphasis added;  Taormina Theosophical Community, Inc. v. Silver (1983) 140 Cal.App.3d 964, 975, 190 Cal.Rptr. 38.)

While “arbitrary” is a term of art whose definition frequently depends on the outlook of the observer, we would place the offering of gender based, but equal, discounts on different days of the week in a category with segregated restroom facilities for men and women.   The benefit extended to one sex is simply not at the expense of the other, and it is reciprocal in any event.

Also, there was more than ample evidence before the trial court to demonstrate the discounts serve an independent business purpose.   We realize the latter test is not necessarily determinative and that a particular practice may nevertheless be held to be arbitrary, since “an entrepreneur may pursue many discriminatory practices ‘from a motive of rational self-interest,’ e.g., economic gain, which would unquestionably violate the Unruh Act.   For example, an entrepreneur may find it economically advantageous to exclude all homosexuals, or alternatively all nonhomosexuals, from his restaurant or hotel, but such a ‘rational’ economic motive would not, of course, validate the practice.  [Citation.]”  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 741, fn. 9, 180 Cal.Rptr. 496, 640 P.2d 115.)   But the car wash discounts are motivated by a reasonable business purpose which does not penalize, much less exclude, anyone.

Promotional price discounts for identifiable groups are quite common and a traditional way of doing business in numerous industries.   Many, perhaps most public carriers, restaurants, theaters, and professional and amateur sporting events offer discounts to various classes of persons, such as children, families, senior citizens, military, students, clergy, and so on.   On certain occasions many businesses also offer discounts to an endless variety of special groups not available to individuals.   No court, to our knowledge, has interpreted the Unruh Civil Rights Act to prohibit those practices, however.   Rather, the act has been applied only to bar exclusion of a particular class of persons from admission to a business or participation in an activity.2  Although we could envision application of the act to arbitrary discrimination which does not exclude but merely discourages patronage of a particular class because of the offensive nature of the practice or the gross economic disparity of the discount involved, this is not that case.   Moreover, if the Legislature had intended the revolutionary intrusion on traditional American business practices and the rights of the owners urged by Koire and our dissenting colleague, it could easily have drafted—or amended—Civil Code section 51.5 to prohibit all price discounts not universally offered.

We see a great difference between suspect actions of the sort which tend to discourage or exclude and ordinary business promotions which have a contrary objective.   Although Koire labels the latter “a particular form of arbitrary exclusion,” he provides no authority, state or federal, in which that position has been adopted.   Two cases relied on by the trial court do support its findings, however, and we have found nothing to the contrary (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152, 140 Cal.Rptr. 599;  MacLean v. First Northwest Industries of America, Inc. (1981) 96 Wash.2d 338, 635 P.2d 683).

While Archibald is readily distinguishable in many ways, it is the solitary California appellate opinion to discuss price discounts in the context of the Unruh Civil Rights Act.   Plaintiff there claimed several Hawaiian hotels charged local residents a lower rate than tourists.   She alleged the practice was discriminatory and violated Civil Code section 51.   Not surprisingly, the court concluded the Unruh Civil Rights Act did not apply in other states, but noted in passing that the practice would not violate the statute in any event:  “Plaintiff was not arbitrarily excluded from any business premise[s], nor was she arbitrarily discriminated against in any way.   Plaintiff has alleged no tort, breach of contract or other actionable wrong.”  (Archibald v. Cinerama Hawaiian Hotels, Inc., supra, 73 Cal.App.3d at p. 159, 140 Cal.Rptr. 599.) 3

 With respect to the case against Jezebel's, the MacLean opinion is helpful.   There, the Supreme Court of Washington rejected plaintiff's argument that half-price admissions for women at professional basketball games violated the state's equivalent of the Unruh Act: 4  “The discount on ticket prices for women was not calculated to nor is it contended that it did cause the respondent to feel unwelcome, unaccepted, undesired or unsolicited.”   (MacLean v. First Northwest Industries, Inc., supra, 96 Wash.2d at p. 344, 635 P.2d 683.)   Moreover, the court noted, “There is no contention that the regular prices charged for seats at the [basketball] games are unreasonable or unfair.   It appears that the greater the attendance, the lower the rates that can be charged those who pay the regular price․  [¶] The respondent has been unable to demonstrate that he suffered any damage as a result of this special discount for women.”  (Id., 96 Wash.2d, at p. 342, 635 P.2d 683.)

Washington's statute is strikingly similar to Civil Code section 51, and we find the MacLean reasoning persuasive.   A pricing policy designed to encourage or subsidize patronage by a particular consumer group does not necessarily exclude or discourage that of others.   To the contrary, the unchallenged testimony of the nightclub personnel proved more, not fewer, males attended on the evenings females were offered free admission.   Rather obvious reasons spring to mind which both explain this phenomenon and justify its existence:  To the extent men treat the women who accompany them, the discounts actually favor them, not their distaff companions.   Moreover, although they receive no economic benefit, single men as a group apparently have no complaint;  for the evidence is they still choose to attend nightclubs offering discounts for ladies in greater numbers.  (It was not contended the same was true of car washes, however.)

The interpretation Koire advocates is not warranted by any decision of our courts or our own understanding of the language and intent of Civil Code sections 51 and 51.5, and we decline to extend its parameters to reach the facts before us.   His argument that “business could realize a profit by excluding different members of different groups or by exercising disparate treatment with the effect of [dissuading] their patronage” is undoubtedly true, as our Supreme Court has noted in several cases (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d at pp. 740–741, fn. 9, 180 Cal.Rptr. 496, 640 P.2d 115;  Stoumen v. Reilly (1951) 37 Cal.2d 713, 234 P.2d 969).   But no dissuasion of customers of any sex is presented in the factual context of this case.   There is no suggestion the price schemes here were either designed to or did discourage anyone from patronizing defendants' businesses, quite the contrary.   We suppose a business could devise a pricing policy so economically onerous or socially offensive it would have the effect of excluding or discouraging a segment of the population.   When that occurs, the application of Civil Code section 51 to business pricing policies may appropriately be invoked.   Not here.

Judgment affirmed.   Respondents are entitled to costs on appeal.

I respectfully dissent.1  Initially, the issue presented is not, as the majority states, whether private businesses are precluded from offering price discounts, but whether they are precluded from doing so when the discounts are gender based.

The majority relies on two premises, both of which are correct.   However, it is their application of those premises which yields an incorrect result.   They concede “[d]iscriminatory practices which exclude or tend to discourage protected classes from the premises of a business are barred by section 51.5 of the Civil Code, ․” (Maj. opn., p. 234, emphasis added), but conclude only conduct which results in exclusion is barred.   They determine because the plaintiff was not directly excluded and because he failed to prove the presence of men was discouraged by either the car washes or the nightclub there has not been a violation of the Act.

They further analyze the statute to determine only arbitrary discrimination (exclusion) is prohibited.   They then find the activities complained of here are not arbitrary because they cannot “reasonably be expected to discourage ․ patronage because of the size or nature of the benefit ․”  (Maj. opn., p.p. 234-235.) 2

I

THE ACT IS NOT LIMITED TO EXCLUSIONARY PRACTICES

The majority finds the statute applicable only to business practices which result in actual or apparent exclusion of customers and not to “preferred treatment for women on certain days in the form of petty price discounts, ․”  (Maj. opn., p. 235.) 3

The Unruh Act and its legislative predecessors have engendered substantial litigation.   However, the issues litigated have been limited to which businesses are included within the Act (the Legislature answered by amending the law to include “all business establishments of every kind whatsoever”) and which patrons are protected (statutory and case law authority establish that all kinds of patrons are included).

No court has focused on the business activities which are intended to come within the statutory boundaries.   Perhaps that is because some truths are so self-evident they do not need further explanation.   Indeed, the majority's holding presents an anomaly.   The Act applies to all businesses and all customers, yet my colleagues have determined it is applicable only to practices which exclude or tend to discourage attendance.

But the Act by its very language mandates “[a]ll persons ․ are free and equal, and no matter what their sex ․ are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”  (Emphasis added.)

That language simply cannot be read to imply or suggest discriminatory practices are acceptable so long as they do not exclude or tend to exclude.   Nor am I convinced by the majority's speculation “[i]f the Legislature had intended the revolutionary intrusion on traditional American business practices and the rights of the owners urged by Koire ․ it could easily have drafted—or amended—Civil Code section 51.5 to prohibit all price discounts not universally offered.”  (Maj. opn., p. 236.)   They argue preferential treatment is acceptable because Civil Code section 51.5 only prohibits a business establishment from “discriminat[ing] against, boycott[ing] or blacklist[ing], refus[ing] to buy from, sell to, or trade with any person ․ because of the ․ sex of such person ․”  In other words, because the Legislature did not mention “discounts,” they did not intend “petty price discounts” to be included.

This conclusion ignores the legislative history of the Act.  “The first California legislation providing for private redress of discrimination by private businesses—later codified as former Civil Code sections 53 and 54—was enacted in 1893.   Much like legislation in other states, section 53 required places of ‘public amusement or entertainment’ to admit all persons 21 or older except those under the influence of liquor, acting boisterously, or of lewd or immoral character.   Section 54 provided for a fixed sum to be awarded in addition to actual damages.   Four years later further protection of civil rights was enacted in what was to become codified as former Civil Code sections 51 and 52.   Following the pattern of a part of the National Civil Rights Act, which had been held unconstitutional in The Civil Rights Cases, United States v. Stanley, section 51 declared all citizens to be ‘entitled to full and equal accommodation, advantages, facilities and privileges of ․ all ․ places of accommodation or amusement.’ ”  (Beasley, California Supreme Court (1972) 60 Cal.L.Rev. 759, 1026–1027, fns. omitted, emphasis added.)

Therefore the Act originally was applicable only to certain types of businesses and then only to their admittance policies.   Now the Act applies to all businesses and prohibits them from many practices.   The listing of boycotting, blacklisting, etc., was meant only to provide examples of the types of activities prohibited;  the list is not definitive.   Discrimination (whether exclusionary or not) is prohibited, as is blacklisting, etc.   Whether Civil Code sections 51 and 51.5 are read together or independently, the Legislature does not need to amend;  their intent is clear.  Civil Code sections 51 and 51.5 do not allow businesses to discriminate on the basis of sex in any way that would result in the denial of full and equal accommodations, advantages, privileges or services.

“Indeed, in recent years, a spate of decisions by the appellate courts and the opinions of the Attorney General have explicitly concluded, in a variety of contexts, that the Unruh Act covers a wide range of discriminatory practices.”  (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 736, 180 Cal.Rptr. 496, 640 P.2d 115, emphasis added.)   The Legislature's failure to list a particular category of discrimination has not precluded the courts from finding the category nevertheless included.

The courts have consistently interpreted the exact wording of the Act to be illustrative rather than restrictive.  (In re Cox (1970) 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992.)  “The Act is to be given a liberal, and not a strict, construction with a view to effect its object and to promote justice.   [Citations.]  [¶]  As with all statutes, it must be construed in the light of the legislative purpose and design.   In enforcing the command of a statute both the policy expressed in its terms, and the object implicit in its history and background, should be recognized.”  (Winchell v. English (1976) 62 Cal.App.3d 125, 128, 133 Cal.Rptr. 20, emphasis added.)

The majority dismisses plaintiff's authorities as inapplicable because those cases “deal solely with the exclusion of a class of persons ․”  (Maj. opn., p. 234.)   By charging plaintiff a different price for a car wash because of his sex and by charging him an entrance fee but not charging females any fee, these defendants have discriminated against the plaintiff.   He has been denied full and equal accommodations, advantages and privileges.   Thus he stands in the same situation as those plaintiffs who preceded him.   The authority on which Koire relies is applicable.

In Hales v. Ojai Valley Inn & Country Club (1977) 73 Cal.App.3d 25, 140 Cal.Rptr. 555, plaintiff was told he could patronize a restaurant only if he wore a tie;  the court held he stated a cause of action.   Access was not denied but made conditional.   Like our plaintiff, he was not excluded but was denied full and equal advantages and privileges.   And in Rolon v. Kulwitzky (1984) 153 Cal.App.3d 288, 289, 200 Cal.Rptr. 217, “[p]laintiffs, two lesbian women, were refused service in a semiprivate booth at a restaurant owned and operated by defendant.   They were offered service at a table in the main dining room of the restaurant.”  (Id., 153 Cal.App.3d, at p. 290, 200 Cal.Rptr. 217.)   The court found the Act applicable.   The business practice was prohibited under the Act even though the patrons were not excluded from the premises but offered alternative seating.   They, like our plaintiff, were denied full and equal accommodations.

The majority states “[n]o case to our knowledge has discovered a per se rule of discrimination in business promotions based on gender.”  (Maj. opn., p. 235.)   They therefore impliedly recognize there is authority for finding discriminatory business practices are per se violations when based on other protected classifications.   And this is true even if the business practices do not amount to actual or imagined exclusion.   Certainly the majority cannot be arguing that while it is not permissible to discriminate on the basis of race, it is permissible to discriminate on the basis of sex.

In Winchell v. English, supra, 62 Cal.App.3d 125, 127, 133 Cal.Rptr. 20, the court found the plaintiffs had stated a cause of action under the Act by alleging the following:  “Defendants, operators of a mobile home court, who had given plaintiffs, members of the white race and their tenants of a mobile home space, permission to subrent to others, discriminated against plaintiffs when, and because, they subrented the space to, and associated with, persons of the black race.”   The defendants argued a business establishment could not discriminate against someone on the basis of race but under the Act was not prohibited from discriminating “against persons on account of their association with others of the black race, ․”  (Id., 62 Cal.App.3d at p. 128, 133 Cal.Rptr. 20.)   The opinion does not describe the alleged discrimination.   However, based on the facts contained within the opinion it is clear the discrimination was not limited to, and did not even include, exclusion.   Rather, the court stated, “It seems proper to point out that the discrimination of this case, as in In re Cox, was arbitrary, and based solely upon the subject's association with others.”  (Id., 62 Cal.App.3d at p. 130, 133 Cal.Rptr. 20.)   And quoting our Supreme Court in In re Cox, the Winchell court concluded, “the Legislature intended to prohibit all arbitrary discrimination by business establishments.”  (Ibid.)

In 59 Ops.Cal.Atty.Gen. 70 (1976), cited with approval in Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 736, 180 Cal.Rptr. 496, 640 P.2d 115, the Attorney General opined convenience stores and fast food outlets could not, without being in violation of the Act, levy a minimum charge on purchases by students.   Students were not excluded, they were merely required to purchase more.   The differentiation of services, the denial of full and equal services, cannot be allowed.   Stores cannot charge one classification of patrons more (or less) than another classification.  “[I]t does not appear ․ restriction upon students and persons of certain ages by convenience stores and fast food outlets would be permitted under the Act.”  (Id., at p. 72.)

The majority further rationalizes the car wash discounts by arguing the plaintiff had the same rights as women;  he merely paid more or came back another day to take advantage of them.   In other words, they find separate but equal access is not violative of the Act.   The separate but equal doctrine has long been put to rest by a court higher than ours and need not be discussed.   Moreover, the majority's reliance on this doctrine is not supported by the facts.   Koire did have the same car wash discounts available to him but only by coming back on a different day.   And the conditions of nightclub patronage can hardly be deemed separate but equal.   Women got in for free;  men paid!

Practices which lead to the denial of full and equal advantages, privileges, accommodations, facilities or services are discriminatory and within the purview of the statute.   It matters not whether Koire was actually excluded or whether other men still frequented the business.   The business practices involved here are violations of the Act.   Koire was not denied access to the car wash nor was he prevented from entering the nightclub.   But he was treated differently because of his gender.   Pay more or come another day.   Those restrictions were violative of the Act because they were gender based and deprived Koire of his right to “full and equal privileges and advantages.”

Perhaps it is a question of semantics to differentiate between exclusion (Blacks cannot enter) and conditional restrictions (lesbians may enter but are restricted to certain areas).   Whether one is merely treated differently or completely excluded, the result is the same.   And that result is exactly what the Act was designed to prohibit.   One cannot arbitrarily be made to feel different or be singled out based on a protected classification—sex, religion, race, etc.

II

THESE BUSINESS PRACTICES ARE ARBITRARY

The Supreme Court in Marina Point Ltd. v. Wolfson, supra, 30 Cal.3d 721, 736–737, 180 Cal.Rptr. 496, 640 P.2d 115, held, “while the Unruh Act prohibits a business establishment from engaging in any form of arbitrary discrimination, the act does not absolutely preclude such an establishment from excluding [or as here discriminating against] a patron in all circumstances.”   The majority finds the practices are not arbitrary and thus not precluded.   I disagree.

Discrimination has been allowed or otherwise not been considered arbitrary if it is a restriction reasonably related to the operation of the establishment and is one which constitutes good business and social practices.   These exceptions are narrow and are to be interpreted within the letter and spirit of the statute.   They cannot be used to defeat its purpose and must be analyzed on the premise all discrimination is prohibited unless it comes within one of these exceptions.   And the practice, even if rational as to an individual customer, cannot be used to discriminate against a particular class.4

Thus it is not enough the practice may be reasonably related to the operation of the establishment.   Convenience stores may experience more vandalism or other disruptive behavior from teenage patrons but they may not, without being in violation of the Act, limit student patronage based on number, hours, and/or portions of premises, or place a minimum charge on purchases by students.  “[A] business establishment is permitted to establish regulations for use of its premises by patrons, so long as those regulations are reasonable in relation to the type of business establishment involved and the legitimate goals to be accomplished by the regulations.”  (59 Ops.Cal.Atty.Gen. 70, 71–72.)

Gambling establishments do not violate the Act by denying a customer access to the premises when the customer had dishonored checks and was known as a compulsive gambler.  (Wynn v. Monterey Club (1980) 111 Cal.App.3d 789, 168 Cal.Rptr. 878.)   The Wynn court found the business practice was not arbitrary because it involved good business and social practice based on positive public policy.  “This case involves gambling establishments and not some form of harmless entertainment.   Plaintiff has a strong and protectable interest in the preservation of the marriage and the emotional well-being of himself and his wife.   The wife suffers from a recognized mental disorder and has overtly manifested her propensities.   The contract was an attempt by lawful means to prevent harm to both spouses and the marriage itself.   It did not violate the public policy which seeks to preserve to all persons freedom of action and choice.”  (Id., 111 Cal.App.3d at pp. 798–799, 168 Cal.Rptr. 878.)

The defendants' business practices do not come within this exception.   The only business goal was increased profit.   The majority claims these business practices fall within this exemption, finding, “there was more than ample evidence before the trial court to demonstrate the discounts serve an independent business purpose.”  (Maj. opn., p. 235.)   But the majority misunderstands the justification for the exemption.   It was never premised on equating an independent business purpose to increased profit alone.   Clearly, actions which would otherwise be violations under the Act are no less offensive because they are profitable to the violators.  “An entrepreneur's discriminatory practice based upon ostensible rational economic self-interest still violates public policy as codified in Civil Code section 51.”   (Easebe Enterprises, Inc. v. Rice (1983) 141 Cal.App.3d 981, 987, 190 Cal.Rptr. 678.)

Moreover they are no less discriminatory because, as the majority impliedly suggests, they ultimately do not increase the financial burden to men and in the long run perhaps decrease the burden.  “The benefit extended to one sex is simply not at the expense of the other, and it is reciprocal in any event.”   (Maj. opn., p. 235.)   In other words, men cannot complain they are paying more than women for the same service because it increases the proprietor's revenues thereby allowing the overall lower costs to all customers.   Men don't pay more, says the majority;  women pay less.   I fail to see the distinction and in any event cannot agree with the conclusion.   To repeat, a business purpose is not an exception to the rule because its goal is to increase revenues.   And this is no less true because the goal is fulfilled.

The majority accepts the discriminatory nightclub entrance fees because “although they [men] receive no economic benefit, single men as a group apparently have no complaint;  for the evidence is they still choose to attend nightclubs offering discounts for ladies in greater numbers.”  (Maj. opn., p. 237.)   Implicit in the majority's opinion is the argument the business practices are socially beneficial to men and women.5

The record is replete with defendant Jezebel's insistence it was carrying out a policy of great social significance, namely “helping” a class of people (women).   But as Justice Mosk observed in Sail'er Inn v. Kirby (1971) 5 Cal.3d 1, 20, 95 Cal.Rptr. 329, 485 P.2d 529, “[t]he pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.”

Moreover, that is not the point.   Koire, as the plaintiff, is exercising his rights in complaining about the effect these defendants' actions have on him.   “[I] must also reject [the majority's] contention that its exclusion of men is not the type of ‘arbitrary’ discrimination prohibited by the Unruh Act.   [Citations.]  Essentially, it is urged that changing social perspectives recognize that in some situations a policy founded on gender-based discrimination is consistent with everyday realities and in fact inures to the benefit of those who have been the victims of past societal and legal discrimination.   It is true that under this concept, certain governmental practices have successfully withstood claims of impermissible sex discrimination․  [I] do not regard it to be within the purview of an intermediate appellate court, at this late date, to substitute its perspective for that of the [Legislature] and to hold that [the] challenged practices constitute an exception to the Unruh Act as a matter of law because they are ‘benignly inspired.’ ”  (Easebe Enterprises, Inc. v. Rice, supra, 141 Cal.App.3d 981, 987, 190 Cal.Rptr. 678, fn. omitted.)

The majority finds men cannot complain about paying more than women to enter a nightclub because the result is the patronage of more women.   Koire does not agree this is a benefit well worth paying for and it certainly is not a social policy worthy of public or judicial support.  (See Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115, wherein the majority, because of social policy reasons, supports separate residential facilities for senior citizens.) 6

These discriminatory business practices based on gender neither serve a legitimate regulatory business purpose nor are they exempted because of public policy.   They are arbitrary.   The judicially created exemptions were never intended to sanction this type of activity.

III

THE MAJORITY'S RELIANCE ON ARCHIBALDAND MAC LEAN IS MISPLACED

I am not impressed with the two authorities mentioned by the majority and relied on by the trial court.   Any reference to the Unruh Act in Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152, 140 Cal.Rptr. 599 is dictum;  the court found the Act inapplicable to the issue before it.   Further, I cannot accept the unqualified conclusion that while hotels may not exclude patrons, there is “no California statute, rule or policy which requires a hotel to charge a uniform rate to all its guests.”  (Id., 73 Cal.App.3d, at p. 160, 140 Cal.Rptr. 599.)   Thus I assume it would be acceptable to charge persons of Mexican heritage double that charged to Anglo Saxons.   The majority despairs I suggest undermining traditional promotional “discounts to various classes of persons, such as children, families, senior citizens ․ and so on.”  (Maj. opn., p. 235.)   I hasten to add that issue is not before us.   We address gender based activity;  sex is a specified protected classification, as is race or religion, and discrimination based thereon is immediately suspect.

In MacLean v. First Northwest Industries of America, Inc. (1981) 96 Wash.2d 338, 635 P.2d 683,7 the Washington Supreme Court held ladies' night at basketball games was not violative of their statutes.   First, there was no intent to discriminate.   Rather, because “women do not manifest the same interest in basketball that men do” (id., 96 Wash.2d at p. 342, 635 P.2d 683),8 the policy was intended to increase women's attendance.   And second, the effect did not make men feel “unwelcome” or “unaccepted” and did not increase the amount they had to pay.   Thus, the Washington court concluded the defendants' activities did not damage the plaintiff.

But as discussed ante, violations cannot be excused or accepted because they were not intended to hurt the plaintiff, and in fact may have benefited another class.   Damage still results to those who are complaining.   Like one of the dissenting justices in MacLean, I would hold the act “bars gender-based price differentials regardless of the harm suffered.”  (Id., 96 Wash.2d, at p. 348, 635 P.2d 683 (dis. opn. of Utter, J.).)  “And, contrary to the majority's assertion, that right is not dependent upon proof of actual damages.”  (Id., 96 Wash.2d, at p. 350, 635 P.2d 683 (dis. opn. of Utter, J.), fn. omitted.)

In fact, contrary to the majority's conclusion, I would find Koire did suffer damages.   Having to come back another day to enjoy the same privileges (or in the case of the nightclub never being able to get in for free) may not be as significant as having to ride in the back of the bus or having to use a different drinking fountain, but it is differential treatment which in and of itself constitutes damage !!

IV

CONCLUSION

The Act prohibits arbitrary discrimination based on gender.   Exclusion is but one aspect of discrimination.   Both sexes are entitled to full and equal privileges and advantages.   Neither the fact the business made more money as a result of the practices nor the fact more women (and maybe even more men) may have patronized the establishment exempts these activities.   A man is required to pay more than a woman for access to the same facilities;  a man to have equal access must come on a different day.   This “places an obligation on him and gives a special privilege to the woman.”  (MacLean v. First Northwest Industries of America, Inc., supra, 96 Wash.2d 338, 355, 635 P.2d 683 (dis. opn. of Dolliver, J.).)

These practices are no more acceptable under the Act than the precedents they would encourage and condone.   The majority has held an establishment does not discriminate in offering the same privileges on different days.   Further, they have sanctioned discriminatory practices by finding the attendance of women at bars to be a social benefit worth protecting.   Anything is now possible.

I would grant plaintiff's request for injunctive relief, damages and attorney's fees.

FOOTNOTES

1.   Civil Code section 51 provides, “This section shall be known, and may be cited, as the Unruh Civil Rights Act.  [¶]  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.  [¶]  This section shall not be construed to confer any right or privilege on a person which is conditioned or limited by law or which is applicable alike to persons of every sex, color, race, religion, ancestry, or national origin.”

2.   The most recent case in this area is Pines v. Tomson (1984) 160 Cal.App.3d 370, 206 Cal.Rptr. 866, where the court held a Christian telephone directory could not refuse to accept paid advertisements from persons who declined to affirm they had accepted Christ as their savior and were “born again” Christians.

3.   The concurring opinion of Justice Friedman correctly observed the complaint really sought damages for violation of “federal antitrust laws by restraint of competition in interstate commerce” and fell within the exclusive jurisdiction of the federal courts.  (Id., 73 Cal.App.3d, at p. 162, 140 Cal.Rptr. 599.)

4.   Section 49.60.030 of the 1974 Revised Code of Washington provides, “(1) The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical handicap is recognized as and declared to be a civil right.   This right shall include, but not be limited to:  [¶] (a) The right to obtain and hold employment without discrimination;  [¶] (b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement ․”“Full enjoyment of” is defined in section 49.60.040 as “the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, without acts directly or indirectly causing persons of any particular race, creed, color, or with any sensory, mental, or physical handicap, or a blind or deaf person using a trained dog guide, to be treated as not welcome, accepted, desired, or solicited ․”

1.   After reviewing the record I have questions about the adequacy of the evidence.   However, the trial judge impliedly found Koire did frequent these establishments and was treated as he alleges.   I therefore accept his factual findings and challenge only his legal conclusions.

2.   One wonders what “size” a gender based benefit must reach before it becomes a violation of the Act.

3.   The discounts are not petty.   The car wash discounts available on specified days to one class of people (women) but not available to another class (men) ranged from 4% to 38% and averaged 22 3/434%.  (Men:  $4.79—Women:  $2.99 (approximately 38% discount).   Men:  $3.75—Women:  $3.60 (4% discount).   Men:  $3.25—Women:  $2.75 (16% discount).   Men:  $4.50—Women:  $3.00 (33 1/313% discount).)

4.   The Attorney General concluded excluding or restricting access to all teenagers violated the Act even though “[u]niform regulations restricting all ingress and egress through limited areas of the store, directing that certain products or purchases totaling less than a minimum figure be made at an annex or side window, imposing minimum charges on all patrons using certain portions of the premises, and imposing a maximum time limit for occupancy of certain portions of the premises (restaurant booths and tables), might be appropriate solutions to some of the problems described, and would appear to fall within the scope of permissible regulations by California courts.”  (59 Ops.Cal.Atty.Gen. 70, 73, fn. omitted.)

5.   No social policy rationale is discussed by the majority in their support of Ladies' Day discounts at the car wash.

6.   For these same reasons, separate restroom facilities for men and women may not be in the same category as discounts.   The former could be supported by strong social policy.

7.   Only two justices joined the majority.   There were two dissenting opinions and two justices who concurred with the majority only in the result.

8.   As the Oregon Supreme Court observed in upholding a statute banning female wrestlers:  “Obviously [the Legislature] intended that there should be at least one island on the sea of life reserved for man that would be impregnable to the assault of woman.   It had watched her emerge from long tresses and demure ways to bobbed hair and almost complete sophistication;  from a creature needing and depending upon the protection and chivalry of man to one asserting complete independence.   She had already invaded practically every activity formerly considered suitable and appropriate for men only.   In the field of sports she had taken up, among other games, baseball, basketball, golf, bowling, hockey, long distance swimming, and racing, in all of which she had become more or less proficient, and in some had excelled.   In the business and industrial fields as an employe [sic ] or as an executive, in the professions, in politics, as well as in almost every other line of human endeavor, she had matched her wits and prowess with those of mere man, and, we are frank to concede, in many instances had outdone him.   In these circumstances, is it any wonder that the legislative assembly took advantage of the police power of the state in its decision to halt this ever-increasing feminine encroachment upon what for ages had been considered strictly as manly arts and privileges?”  (State of Oregon v. Hunter (1956) 208 Or. 282, 287–288, 300 P.2d 455.)   But recent events have proven this assertion to be of doubtful accuracy given the widespread interest by men and women in the gold medal performance of the United States women's basketball team during the 1984 Summer Olympics.

CROSBY, Associate Justice.

TROTTER, P.J., concurs.