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,,. ,/ STA~ OF EDGAR S. KALB of MAYO, MARYLAND BEFORE THE COMMITTEE ON COMMERCE OF THE UNITED STATES SENATE IN RE: s . 1732 The "Interstate Public Accommodations Act lat Session 88th Congress ( l) SCOPE OF STATEMENT (a) The scope and purpose of this statement is to present to the Committee evidence to show that the provisions of S. 1732 should not be made applicable to the operation of privately owned and privately operated bathing beaches, which beaches a.re located in states in which the State, Federal Government, or any County or Municipal Corporation, or other public tax-supported body, operates or maintains any beach or beaches, which a.re open to the use of all persona. (b) To propose to the Committee certain amendments to S. ·1732 to effectuate such exclusion, and to suggest certain amendments designed to eliminate certain injustices from the Act. ( 2) DESCRIPTION OF THE TYPES OF BEACHES FOR WEICH EXCLUSION FROM THE ACT (S. 1732) IS REQUESTED. I (a) Examples of the types of beaches for which e:ic.emption from S. 1732 is requested a.re the approximately twenty-one privately owned and privately operated bathing beaches which a.re located on the western shore of the Chesapeake Bay and its tributaries in Maryland. Of these twenty-one beaches, fourteen a.re located in Aime Arundel County, south of Baltimore; four are located in Baltimore County, north of Baltimore City; and three are located in Calvert County, within approximately 25 to 35 miles of the District of Columbia. Approximately three of these privately owned beaches a.r" fully "integrated." (b) Gene,rally speaking, these twenty-one beaches, with a few exceptions, are "family O'Wlled and operated, 11 and have been so owned and operated for several generations. (c) Moat of these small bathing beaches are located adjacent to small residential communities, and in a certain sense are practically part of those residential comm.unities. (d) Based on personal experi-Mlce and personal observation it is estimated that the total gross annual business done by these twenty-one beaches will be le.as than five millions of dollars. ( 3) PUBLICLY OWNED AND PUBLICLY OPERATED BATHING BEACHES LOCATED ON THE WESTERN SHORE OF THE CHESAPEAKE BAY IN MARYLAND • (a) The State of Maryland operates two very beautiful public bathing beaches on the western shore of the Chesapeake Bay within easy access from Baltimore City, Washington, D. C. , and the adjacent metropolitan areas; namely, Elk Ne ck State Park and Beach, north of Baltimore City; and Sandy Point State Park and Beach, south of Baltimore City (within Anne Arundel County). Both are within easy access to both Baltimore and Washington by excellent roads. (Sandy Point State Park and Beach ie located in Aime Arundel County and annually has more than 300,000 visitors.) Baltimore City owns and operates a beautiful bathing beach, located in Anne Arundel County, south of Baltimore, and within about 35 miles of Washington, D.C. Furthermore, according to newspaper reports, the Federal Governl119nt has recently devised a beautiful waterfront property located in Anne Arundel County, within 25 miles of Washington, D.C., and within about 36 miles of Baltimore City, consisting of approximately 265 acres of land with more than a mile of waterfront. This property could With little expense be converted into an additional waterfront park and beach by the Federal Government for the use of all of the public. 1 �2 (b) It i s astimated that the total acreage and miles of waterfront available to the pubii0 itl publicly owned beaches on the western shore of the Chesapeake Bay in Maryiarld i s in excess of the total acreage and the total mil.ea of waterfront ope~eted as private beaches in Maryland by private ownership. ( c} In no instance does it appear that the patronage of these publicly owned operated beaches has reached anything near their maximum potential patronage, and there is absolutely no present lack of sufficient bathing facilities available t o the general public, in the immediate vicinity of Baltimore and Washington. and (d) In addition, the many miles of beach front on the Atlantic Ocean at Ocean City, Maryland., are owned by Worcester County and are available to all persons. Furthermore, the State of Maryland is presently acquiring an extensive eXl,)anse of Asseateague Island for use as a public beach. SUMMARY BASED ON A NEED FOR ADDITIONAL BATHING BEACH FACILITIES, THE PUBLIC NEEDS ARE MORE THAN ADEQUATELY PROVIDED FOR, AND THERE IS NO JUSTIFICATION FOR REQUIRING THE PRIVATELY OWNED AND PRIVATELY OPERATED BATHING BEACHES TO ACCEPI' UNDESIRED PATRONAGE. ( 4) THE "FINDINGS" AS SET FORTH IN SEC. 2 of S. 1732 FAIL TO ESTABLISH ANY VALID FACTS SUFFICIENT TO JUSTIFY THE INCWSION OF PRIVATELY OWNED AND OPERATED BATHING BEACT-lES WITHIN THE CLASSIFICATION OF BUSINESSES TO "WHICH THE PROVISIONS O.F S. 1732 ARE APPLICABLE. AS INDICATED BY THE FOLLOWING ANALYSIS OF THE ~;FINDINGS: 11 Sec. 2 (a) of the "Findings 0 sets forth no basis for such inclusion, as bathing beaches are abundantly available to all persons in Maryland. at publicly owned and operated bathing beaches, and in addition in at least three privately owned and operated beaches, which three beaches are fully integrated. Sec. 2 (b) of the "Findings" sets forth no valid basis for such inclusion as none of the twenty-one privately owned and operated beaches, insofar as known, offer overnight accommodations (all being within commuting distance of Washington and Baltimore, and all catering to daily transient business only). Sec. 2 (d) of the "Findings" sets forth no valid basis for such inclusion as the movement of 0 goods, services and persons" applicable to the operation of bathing beaches; with but minor exceptions, does not 11move in inter-state cmmnerce_;,11 and, strictly defined, bathing beaches are not places of amusement as used in Sec. 2 (d) but rather are places of participating recreational activities," as distinguished from. places of 11 amueement. 11 COMMENT The 1'Findings 11 as stated in Sec. 2 (d) would appear to be mere expressions of opinion - entirely unsupported with any factual basis in support of such opinions. Sec. 2(e) of the "Findings" would not appear to be applicable to bathing beaches, generally speaking, as they would not appear to fall into the classification of "retail establishments" as used in this sub-section. Sec. ~( f) of the "Findings" sets forth no basis for the inclusion of bathing beaches in S. 1732, as these beaches are not located in any city. They have no facilities for holding conventions, and generally speaking offer no acconnnodations for overnight visitors. Sec. 2( g) of the 11Findings" sets forth no basis for the inclusion of bathing beaches in S. 1732, as in no instance are there any business organizations seeking services in any area affected by the operation of these beaches. All of these beaches are located in remote rural areas where their presence contributes ext~na1vely to the local economy, and which economy would be seriously injured as a r esult of these beaches being forced by law to accept all persona. This would result in a certain lose of business and a resultant loss of employment opportunity by the residents of these rural beach areas. Sec. 2(h) of the 11Findings" sets forth no applicable principal or basis for the inclusi on of pr ivately operated beaches in the provisions of S. 1732. �j In the caee of these priva~ly operat@d beaches, no discriminatory practice is "encouraged, fostered, or to;l.erated" in any degree by the Governmental authorit10s of the State in which they are located, or by the "activities of their executive or judicial officers. COMMENT As applied to the operation of privately owned and operated bathing beaches in Maryland., Sec. 2 (h) is a statement of opinion unsupported by any factual evidence . Sec. 2 ( i) of the "Findings. 11 The conclusions set forth in this sub-section are not applicable to privately owned and privately operated bathing beaches in Maryland, as these beaches n~ither "burden nor obstruct commerce, 11 and the use of the commerce clause of the Federal Constitution for the purpose of imposing integration on these privately owned and operated beaches is a perversion of the Commerce Clause, for the purpose of effectuating a highly dubious purpose, concerning which purpose there are wide differences of opinion 8.Il.Q. which principal is not generally accepted by large segments of the population. It is not the proper function of government to l egislate for moral purpose e . Nor is it a proper function of government to deprive any ee gm.en t of the people of their inherent right of the self determination of their associations for the sole purpose of appeasing the demands of another segment of the people in their desire to satisfy their social ambitions. (5) DESPITE THE FACT THAT TEE 11FINDINGS 0 SET FORTH NOT A SINGLE VALID BASIS FOR THE INCLUSION OF PRIVATELY OWNED AND OPERATED BATHING BEACHES IN THE PROVISIONS OF S. l 732 , NEVERTHEIESS SEC . 3 OF THE ACT . IS SO BROADLY DRAFTED THAT SOME, IF NOT ALL, OF THESE PRIVATELY OWNED AND OPERATED BEACHES WOULD BE INCLUDED . (a) The provisions of Sec. 3 (a) (3) (1) and Sec. 3 (a) (3) (ii) apparently would be applicable to any privately owned and privately operated bathing beach which fell within the stipulations of these two sections. (1) Considering sub-section (11) of Sec. 3 (a) (3) first, the language used in this sub-section which states that if a II substantial portion of any goods held out to the public for sale, use, rent or hire, has moved in interstate commerce, makes it almost impossible for any bathing beach operator to determine whether or not his operation comes within the purview of this Act. There is not a beach operator alive who that a "substantial0 portion of the goods, sold at hie inter-state commerce, because there is no standard set anyone in determining what constitutes a "substantial" for sale, rent or hire. could know for a certainty beach, had not moved in forth in the Act to guide portion of goods held out To determine what constitutes a "substantial" portion of goods in any case will require a court determination. It well may be that there will be as many different decisions as to what does constitute a "substantial" portion of goods as there are District Courts and Courts of Appeals in the United States. It would appear that even the Supreme Court would be unable to lay down a hard and fast rule as to what constituted a "substantial" portion of goods, which rule could be applied to all cases. The inclusion of the word "substantial" in the Act does not appear to be a loose use of terminology, but rather it appears to be a careful and well-studied use of this word, for the purpose of making the Act uncertain and unclear, with the object in view to force the operators of em.all businesses into compliance with this Act, because they would be unable to stand the expense and difficulties involved in litigating the question. THE RESULT BEING THAT THE INCLUSION OF THE WORD "SUBSTANTIAL" IN THE ACT WITHOUT A .PRIOR DETERMINED STANDARD AS TO WHAT DOES OR DOES NOT CONSTITUTE A "SUBSTANTIAL PORTION OF GOODS MAKES THIS ACT LEGISLATIVE DURESS - - THE OPERATOR OF A PI.ACE OF BUSINESS MUST EITHER YIELD TO THE DICTATES OF THOSE EMPOWERED TO INSTITUTE LEGAL PROCEEDINGS AGAINST HIM ON A CHARGE OF NON-COMPLIANCE wrrH THE ACT, OR ELSE ENTAIL EXPENSIVE UTIGATION. The same lack of clearness and uncertainty as to what is intended manifests itself in the u.ee of the words "moved in interstate commerce" in the same sub- section . �4 There ia, of co~se, no difficulty in determining that if goods are transported in inter-state COlllJnerce directly to the operator of any place of business, then cl.early such goods have moved in inter-state commerce and are covered by the Act. But what about goods which movt3d in inter-state commerce ih the normal course of trade, and have come to rest vrl.thin a state, and are in the hands of a dealer in such goods for re-sale in intra-state commerce? If the operator of a privately-operated bathing beach were to purchase such goods f'rom a dealer in intra-state commerce after such goods had previously been transported in interstate commerce, would the prior inter-state transportation imprint follow these goods into the hands of the beach operator who had purchased them in intra-state cOlllI!l.erce? How could a beach operator who had purchased such goods be certain under the language used in this Act that he would not or could not be charged with offering "goods which had moved in interstate commerce and thereby be subjected to litigation or threats of litigation for being in violation of the provisions of this Act? Unless the words "moved in interstate commerce" are clearly defined and limited in the Act by proper standards, the use of such undefined words will enable those authorized to institute litigation uder the Act to use the Act as a form of legislative duress - to com:pell the operators of ..email businesses and others who cannot afford the costs of expensive litigation to either yield to the dictates of those empowered to institute litigation under the Act, or become involved in expensive litigation which they may be unable to afford. The inclusion of the words "substantial portion of goods" and the use of the words "moved in inter-state commerce" as used in the Act, give those empowered to institute enforcement li~tgation the powers of AUTOCRATIC DICTATORS. Furthermore, the inclusion of these words with no limiting or defining standards in the Act permits the Act to be used by persons with ulterior motives as a vehicle for LEGALIZED BIACKMAIL AGAINST THE OPERATORS'- OF PRIVATE BUSINESS. FOR THE CONGRESS TO PIACE SUCH AN UNRESTRAINED POWER TO INSTITUTE OR THREATEN TO INSTITUTE ENFORCEMENT LITIGATION IN THE HANDS OF THE PUBLIC WOUI.D BE A BETRAYAL OF THE AMERICAN PEOPLE. (2) The provisions of Sec. 3 (3) (1) would appear to bring the operators of privately operated bathing beaches within the Act, if " goods, services, facilities, privileges, or advantages or accommodations •....• are provided to a substantial degree to interstate travelers. 11 The same uncertainty and requirements for a determination by the courts, as previously discussed, would likewise face every operator of a private bathing beach to determine what was, or what was not, a "substantial degree of interstate travelers," as used in this sub-section, and the operators of private bathing beaches would again be at the mercy of those empowered to institute enforcement litigation, and would be subjected to duress and threats to instigate enforcement litigation, with its resultant burden of heavy costs, or else surrender and comply with the provisions of the Act. As to the twenty-one private bathing beaches cited in (2) of this Statement, the application of this particular provision of the Act would be chaotic and unequal, as between the several private beaches, for the following reasons: ( a) As to the beaches enumerated, which beaches are located to the north of Baltimore City, it is probable that leas than 1 per cent of the patronage of these beaches is from other than residents of Maryland. {b) As to the private beaches which are located in Anne Arundel County to the south of Baltimore and which beaches are not more than twenty miles distant from Baltimore, a similar condition probably exists. (c) As to the private beaches which are south of the Severn River in Anne Arundel County, the proportion of out-of-state patrons may rise to as much as 30 to 401,. (d) As to the beaches which are located in Calvert County, the percentage of non-Maryland. patrons may rise to as much as 60 or 701,. The result being that out of the twenty-one beaches cited in this Statement, possibly el.even would not have more than 1% of out-of-state patrons, while the other 10 private beaches would possibly have from 30 to 7Cffo of out-ofatate 1>atrons. �5 Under this situation it is possible that eleven of these local private beaches would not have to integrate and could continue to operate on a segregated oasis, while the remaining ten beaches would have to be integrated, under the Aot, merely because their particular locations were more accessible to out-of-state visitors. ANY SUCH RESULT WOULD BE UNFAIR AND INEQJITABIE. THIS POSSlBILITY IN rrSELF IS SUFFICIENT TO JUSTIFY AND TO REQUIRE THE EXCLUSION OF THESE PRIVATELY OPERATED BEACHES FROM THE PROVISIONS OF S. 1732. {6) THE SAME IACK OF DEFINI'IENESS AND CLEARNESS AND LACK OF STANDARDS IS PRESENT IN SEC. 3 (b) OF THE ACT (PAGES 6-7 OF THE ACT). THIS SUB-SECTION PROVIDES FOR THE EXCIDSION OF "BONA FIDE PRIVATE CLUBS OR OTHER ESTABLISHMENTS NOT OPEN TO THE PUBLIC." What is a bona fide club? Are so-called "Key Clubsrr bona fide clubs as used in the Act? If in the operation of our private bathing beach we limit ad.mission to persons who have applied for and have been given a "Guest Membership Card" entitling them to admission, with non-holders of such cards being excluded, does that constitute a bona fide club or other establishment not open to the public? Under our present operation, we have a sign at our entrance which reads that no invitation is extended either expressly or impliedly to visit our beach, and that admission is by invitation of the management only. Is this type of operation covered by the exclusion as to "other establishments not open to the public" as used in the Act? The answer to these questions does not appear in the language of the Act itself. How are we and other beach operators to determine whether our operations qualify for exclusion under this sub-section? What standards are set forth in the Act to guide us in our determination of these questions? What standards are set forth in the Act to enable the courts to determine what are bona fide clubs and what are other establishments not open to the public? Under these conditions we, as beach operators, will be at the mercy of persons empowered to instigate enforcement litigation. We would have to either submit to their dictates and abandon our right to operate under what we construe to be the law, or else be subjected to expensive litigation. This makes it possible for those empowered to instigate enforcement litigation to exercise duress upon the operators of these private beaches in an effort to compel them to integrate their properties. (7) JUSTIFICATION OF THE RIGHT OF THE PRIVATELY OWNED AND PRIVATELY OPERATED BEACHES TO OPERATE ON A SEGREGATED BASIS. (a) The "Findings 11 as set forth in Sec. 2 of the Act set forth no factual basis for including privately owned and operated bathing beaches under the provisions of the Act. (b) There is no lack of available publicly owned and beaches in the Maryland area, and persons who for personal to patronize these public beaches should not be denied the to them for their patronage, privately owned and privately patronage ia compatible to those persons who do not desire publicly operated reasons may not desire right to have available operated beaches, whose integrated bathing. (c) Privately operated beaches should not be denied the right to offer segregated services for the use of such persons. continued on page6 �6 ANALOGY The operation of these privately owned and operated bathing beaches falls into the same category as does the operation of private schools. The State operates public schools, paid for by the taxpayers, for the use of all persons. Persons who for personal reasons do not desire their children to attend public schools should not be denied the right to send their children to private schools whose enrollment may be segregated, and such private schools should not be prohibited by law from operating. Likewise, the State of Maryland, the City ~f Baltimore, and certain counties operate public bathing beaches, paid for and maintained by the taxpayers. Persons who do not desire to bathe with the persons who patronize these public beaches should not be denied by law from having available to them private beaches, whose patrons are compatible to their customary assoc~ations. The Federal Government has available waterfront property in Anne Arundel County for use as a federally operated public bathing beach. ( 8) POSSIBLY THE MOST REPUGNANT AND UN -AMERTCA!IJ PROVISIONS OF THIS ENTIRE ACT ARE THE PROVISIONS OF SEC. 5 (PAGES 7, 8, 9 OF THE ACT) , WHICH SECTION EMPOWERS PRIVATE CITIZENS TO INSTIGATE ENFORCEMENT OF THE ACT. This opens the door to harassment and worse by vindictive persona and also opens the door to extortion through threats of instigating unfounded enforcement litigation, and creates by law, as previously stated, a vehicle which could be used by unscrupulous persons as the basis for Legalized Blackmail. It is suggested that Sec. 5 be stricken from the Act in its entirety, and that in lieu thereof, that criminal penalties be written into the Act, to be enforced by the Attorney General. The additional effect of striking from the Act the present provisions relating to so-called Civil Action for Preventive Relief, and substituting therefor criminal penalties, is that with criminal penalties inserted in the Act, the language of the Act will have to be clear and ~efinite so as to meet the Constitutional requirements relating to criminal laws. �7 SUGGESTED AMENDMENTS TO S. 1732 Suggested Amendment No. 1: Aft er the end of line 3 on page 7 of the Act, insert a new sub-section to r ead as f ollows.: (c) The provisions of this Act shall not apply to a privately owned and privately operated bathing beach nor to any facility contained within the boundaries of any auch privately owned and privately operated bathing beach, which beach is located within any State, or in any County of any State, in which State or County the State, County, any Municipal Corporation, the Government of the United States or any Department or Agency thereof, or any other public authority maintains, operates or makes available to the general public without discrimination as to race, color or creed, the facilities, services, privileges, advantages or accommodations of such publicly operated or publicly o:wned bathing beach. Suggested Amendment No. 2: In pages 7-8-9 of the Act strike out all of Section 5 and insert in lieu thereof criminal penaltie s. Suggested Amendment No . 3: On page 9 of the Act a.mend Section 6 by eliminating all reference to i nstitution of remedies by other than the Attorney General of the United States. �