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475 F.2d 736

Docket No. 72-3131

Millenson v. New Hotel Monteleone, Inc.

Fifth Circuit Court of Appeals

Decided March 23, 1973.

Rehearing and Rehearing En Banc Denied May 9, 1973.

Fifth Circuit Court of Appeals · decided 1973-03-23

2 counsel of record

Key passage — most relied on by later courts

““Ms. Millenson contends that the admission policies of the grill are unconstitutional because they violate the equal protection clause of the fourteenth amendment. Of course for such a claim to withstand close judicial scrutiny, it is incumbent on the aggrieved party to prove that the actions complained of were taken under color of state law. To fulfill this assigned task Millenson contends that the various licenses issued to the hotel by Louisiana so intertwine the policies of the hotel with state authority that impermissible state action is present. Accordingly, the dispositive issue in the instant case is whether the issuance of regulatory licenses to a public accommodation by a state will suffice to color the admission policies of the former with the authority and the involvement of the latter. “For Millenson to succeed it is necessary for her to show that the state licensing system encourages, mandates, or affirmatively authorizes the admission policies of the grill. A cursory examination of these state licensing statutes'manifestly leads one to the conclusion that they are completely unrelated to the admission policies of the licensees. “The impetus for the grill’s admission policies originated with the hotel and not with the state. * * * ””

quoted by 1 later decision, including Whitten v. Petroleum Club of Lafayette

““However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise. * * * ””

quoted by 1 later decision, including Whitten v. Petroleum Club of Lafayette

Applies 28 U.S.C. § 1331 · 42 U.S.C. § 1983 (Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act))

Relies on Adickes v. S. H. Kress & Co. · Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York · Shelley v. Kraemer

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1973-03-23

How this case has been cited

Cited by 7 later decisions — most recently April 1993

4 federal appellate · 1 district ·

30197319801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Summary Calendar.*

¶2Arthur Scheuermann, New Orleans, La., for plaintiff-appellant.

¶3Arthur L. Ballin, Frank C. Dudenhefer, New Orleans, La., for defendantappellee.

¶4Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

¶6PER CURIAM:

¶7On May 18, 1972, Ms. Debra Millenson filed the present action seeking declaratory and injunctive relief against the New Hotel Monteleone (hotel) to enjoin its operation of a restaurant, “The Men’s Grill”, and declaring its “males only” admission policy unconstitutional.1 On August 23, 1972, the district court denied Millenson’s motion for summary judgment and granted the hotel’s motion to dismiss. Millenson appeals from the judgment of the district court. We affirm.

¶8Taking the allegations contained within the complaint as true, the following fact situation is established. On May 18, 1972, Ms. Millenson and several companions, men and women, sought service at the Men’s Grill of the Hotel. Although there were vacant tables and other parties without reservations were seated, Millenson and her party were denied service because of the presence of women in her party.2

¶9*737Ms. Millenson contends that the admission policies of the grill are unconstitutional because they violate the equal protection clause of the fourteenth amendment. Of course for such a claim to withstand close judicial scrutiny, it is incumbent on the aggrieved party to prove that the actions complained of were taken under color of state law.3 To fulfill this assigned task Millenson contends that the various licenses issued to the hotel by Louisiana so intertwine the policies of the hotel with state authority that impermissible state action is present.4 Accordingly, the dispositive issue in the instant case is whether the issuance of regulatory licenses to a public accommodation by a state will suffice to color the admission policies of the former with the authority and involvement of the latter.

¶10For Millenson to succeed it is necessary for her to show that the state licensing system encourages, mandates, or affirmatively authorizes the admission policies of the grill.5 A cursory examination of these state licensing statutes manifestly leads one to the conclusion that they are completely unrelated to the admission policies of the licensees.

¶11The impetus for the grill’s admission policies originated with the hotel and not with the state. Justice Rehnquist’s observations in Moose Lodge, are equally applicable and decisive of Millenson’s contentions. Justice Rehnquist stated:

There is no suggestion in this record that the Pennsylvania Act, either as written or as applied, discriminates against minority groups either in their right to apply for club licenses themselves or in their right to purchase and be served liquor in places of public accommodation.
However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise.6

¶12The judgment of the district court is affirmed.

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