Box 17, Folder 15, Document 16

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Box 17, Folder 15, Document 16

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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.

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