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Opinion 98010

DATE: February 2, 1998

SUBJECT: Is Baker's Supermarket a Public Accommodation within the Meaning of Neb. Rev. Stat. 20-133?

REQUESTED BY: Mr. Alfonza Whitaker, Executive Director Nebraska Equal Opportunity Commission

WRITTEN BY: Don Stenberg, Attorney General

Suzanna Glover-Ettrich, Assistant Attorney General




You have requested an Attorney General's Opinion addressing

the issue of whether Baker's Supermarket is a public accommodation

within the meaning of Neb. Rev. Stat. 20-133. We conclude that it

is.




Neb. Rev. Stat. §20-132 reads:




All persons within this state shall be entitled to a full and

equal enjoyment of any place of public accommodation, as

defined by sections 20-132 to 20-143, without discrimination

or segregation on the grounds of race, color, sex, religion,

national origin, or ancestry.




Neb. Rev. Stat. §20-133 defines the term "public

accommodation" as:




[A]ll places or businesses offering or holding out to the

general public goods, services, privileges, facilities,

advantages, and accommodations for the peace, comfort, health,

welfare, and safety of the general public and such public

places providing food, shelter, recreation, and amusement

including, but not limited to:




(1) Any inn, hotel, motel, or other establishment which

provides lodging to transient guests, other than an

establishment located within a building which

contains not more than five rooms for rent or hire

and which is actually occupied by the proprietor of

such establishment as his residence;




(2) Any restaurant, cafeteria, lunchroom, lunch

counter, soda fountain, or other facility

principally engaged in selling food for consumption

on the premises, including but not limited to any

such facility located on the premises of any retail

establishment;




(3) Any gasoline station, including all facilities

located on the premises of such station and made

available to the patrons thereof;




(4) Any motion picture house, theatre, concert hall,

sports arena, stadium, or other place of exhibition

or entertainment;




(5) Any public facility owned, operated, or managed by

or on behalf of this state or any agency or

subdivision thereof, or any public corporation, and

any such facility supported in whole or in part by

public funds; and




(6) Any establishment which is physically located

within the premises of any establishment otherwise

covered by this section or within the premises of

which is physically located any such covered

establishment and which holds itself out as serving

patrons of such covered establishment.






The Nebraska public accommodations statute was modeled after

the public accommodations provision of the Civil Rights Act of

1964, 42 U.S.C. § 2000a, which prohibits discrimination or

segregation in places of accommodation. The purpose of 42 U.S.C.A.

§ 2000a is to eliminate "the daily affront and humiliation involved

in discriminatory denials of access to facilities ostensibly open

to the general public." EEOC v. The Chicago Club, 86 F.3d 1423,

1435 (7th Cir. 1996) (quoting Daniel v. Paul, 395 U.S. 298, 307-08,

89 S.Ct. 1697, 1702, 23 L.Ed.2d 318 (1969)). The following

establishments which serve the public are considered to be places

of accommodation under the federal statute if their operations

affect commerce:




(1) Any inn, hotel, motel, or other establishment which

provides lodging to transient guests, other than an

establishment located within a building which contains not

more than five rooms for rent or hire and which is actually

occupied by the proprietor of such establishments as his

residence;




(2) Any restaurant, cafeteria, lunchroom, lunch counter, soda

fountain, or other facility principally engaged in selling

food for consumption on the premises, including, but not

limited to, any such facility located on the premises of any

retail establishment; or any gasoline station;




(3) Any motion picture house, theater, concert hall, sports

arena, stadium or other place of exhibition or entertainment;

and




(4) Any establishment (A)(i) which is physically located

within the premises of any establishment otherwise covered by

this subsection, or (ii) within the premises of which is

physically located any such covered establishment, and (B)

which holds itself out as serving patrons of such covered

establishment.






While it may be argued that the federal public accommodations

provision limits coverage to the four categories listed above, the

Nebraska statute does not limit coverage to only specific

categories, such as hotels, restaurants, and gas stations. Rather,

it includes those entities in its definition of "such public places

providing food, shelter, recreation, and amusement." The Nebraska

statute also extends coverage to "all places or businesses offering

or holding out to the general public goods, services, privileges,

facilities, advantages, and accommodations for the peace, comfort,

health, welfare, and safety of the general public." Neb. Rev.

Stat. § 20-133.




Because Neb. Rev. Stat. § 20-132 is a penal statute, it must

be strictly construed. Further, when statutory language is

unambiguous, consideration of legislative intent is unnecessary:




A statute is not to be read as if open to construction as

a matter of course. Where the words of a statute are

plain, direct, and unambiguous, no interpretation is

needed to ascertain the meaning. In the absence of

anything to indicate the contrary, words must be given

their ordinary meaning. It is not within the province of

a court to read a meaning into a statute that is not

warranted by legislative language.




Loewenstein v. Amateur Softball Association of America, 227 Neb.

454, 457, 418 N.W.2d 231, 234 (Neb. 1988) (quoting Bachus v.

Swanson, 179 Neb. 1, 4, 136 N.W.2d 189, 192 (1965)).




Based on the wording of Neb. Rev. Stat. § 20-133, it would

appear that Baker's Supermarket is a place of public accommodation

because it is a business which offers or holds out to the general

public goods and services for the comfort, health, and welfare of

the general public.




It is also possible to argue that a number of Baker's

supermarkets would be considered to be places of public

accommodation under both the federal statute and § 20-132 because

these grocery stores operate restaurants on the premises. In

Daniel v. Paul, 395 U.S. 298, 23 L.Ed.2d 318 (1969), the United

States Supreme Court ruled that a snack bar which was located at a

privately owned recreational facility was a covered public

accommodation under the Civil Rights Act of 1964. The Court

further held that the snack bar's status as a covered public

accommodation automatically brought the entire recreational

facility within the ambit of Title II. Daniel at 305.




The Ninth Circuit Court of Appeals reached a similar decision

in United States v. Baird, 85 F.3d 450, 454 (9th Cir. 1996), when

it ruled that a convenience store which had two video games was a

place of public accommodation under the Civil Rights Act of 1964.

According to this decision, it made no difference whether the video

games were a substantial or insubstantial part of the store's

business. The court found that the wording of 42 U.S.C.

2000a(b)(2) shows a "congressional intent to integrate entire

premises which would not be public accommodations, but for covered

establishments on their premises." Baird at 454. (see also United

States v. DeRosier, 473 F.2d 747 (5th Cir. 1973) (holding that a

neighborhood bar with a juke box, shuffle board game, and a pool

table, which generated three percent of the bar's revenue, was a

place of public accommodation because of the presence these

entertainment devices.)




Based on these rulings, it can be argued that the presence of

a restaurant within a Baker's Supermarket brings the entire

supermarket under the provisions of the federal public

accommodations statute. Likewise, the presence of a restaurant in

a supermarket would result in the supermarket falling under the

authority of § 20-133(2) which covers "any restaurant, cafeteria,

lunchroom, lunch counter, soda fountain, or other facility

principally engaged in selling food for consumption on the

premises, including but not limited to any such facility located on

the premises of any retail establishment."






In conclusion, a Baker's Supermarket is a place of public

accommodation because it is a business which offers or holds out to

the general public goods and services for the comfort, health, and

welfare of the general public. Further, Baker's Supermarkets that

operate restaurants on the premises can be considered a place of

public accommodation under both the federal and state public

accommodation statute.






Sincerely yours,




DON STENBERG

Attorney General






Suzanna G. Glover-Ettrich

Assistant Attorney General