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November 12, 1969

Faith A. SEIDENBERG and Karen DeCrow, Plaintiffs,

The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

 Defendant moves pursuant to Fed.R.Civ.P. 12(b)(1) and (6) for an order dismissing plaintiffs' complaint on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Plaintiffs, citizens of the United States and board members of the National Organization for Women, seek a declaratory judgment pursuant to 28 U.S.C. § 2201 enjoining the continuance of defendant's one hundred and fourteen year practice of catering only to men.

 The material allegations of the complaint, which must be accepted as admitted for the purposes of a Rule 12(b)(6) motion, reveal that on January 8, 1969 plaintiffs entered McSorleys' Old Ale House, a bar primarily engaged in serving alcoholic and non-alcoholic beverages. Upon requesting service, they were told by the bartender that defendant does not serve women and, moreover, has consistently adhered to this practice throughout its existence. Although plaintiffs were sitting quietly and in no way disturbing defendant's patrons, except possibly by the mere fact of their presence itself, they were repeatedly refused service solely on the basis of their sex. Plaintiffs allege that these facts present an actionable claim under the Civil Rights Act, 42 U.S.C. § 1983, within the jurisdiction of this court as prescribed in 28 U.S.C. § 1343(3)(4).

 Title 42, United States Code, Section 1983, provides, in part, that any person who, under color of any state statute or regulation, subjects any citizen of the United States to the deprivation of rights secured by the Constitution and laws shall be liable to the party injured. Title 28, United States Code, Section 1343(3)(4), establishes original jurisdiction in the district courts to entertain civil actions to redress such deprivations against the equal rights of citizens secured either by the Constitution or by any Act of Congress.

 Additionally, Section 201(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a), guarantees to all persons the full and equal enjoyment of public accommodations without discrimination on account of race, color, religion, or national origin. Section 201(a), however, is of no benefit to plaintiffs since, unlike Section 704(b), 42 U.S.C. § 2000e-3(b), which deals solely with unlawful employment practices, there exists no proscription against discrimination on the basis of sex in public accommodations. Since Congress has not seen fit to include sex as an impermissible basis of discrimination in public accommodations, while expressly including sex as a generally impermissible basis of discrimination in employment practices, this Court "should not gratuitously do what Congress has not seen fit to do" by superimposing such condition on the public accommodations law. DeCrow v. Hotel Syracuse Corp., 288 F. Supp. 530, 532 (N.D.N.Y.1968); see DeCrow v. Hotel Syracuse Corp., 59 Misc.2d 383, 298 N.Y.S.2d 859 (Sup.Ct.1969). Moreover, recent decisions have found Section 201 of the Civil Rights Act of 1964 inapplicable to bars and taverns whose principal business is the sale of alcoholic beverages. Tyson v. Cazes, 363 F.2d 742, 743 (5th Cir. 1966); Cuevas v. Sdrales, 344 F.2d 1019, 1022-1023 (10th Cir. 1965), cert. denied, 382 U.S. 1014, 86 S. Ct. 625, 15 L. Ed. 2d 528 (1966). However, a business which describes itself as a bar would nevertheless be covered by the Act if it is principally engaged in selling food for consumption on the premises. Cuevas v. Sdrales, supra at 1022 n. 3; see Fazzio Real Estate Co. v. Adams, 396 F.2d 146, 149-150 (5th Cir. 1968). Plaintiffs assert that McSorleys "is primarily a bar which serves alcoholic and non-alcoholic beverages". But even if this Court were to assume that the sale of foodstuffs is a substantial concomitant of defendant's business, thus qualifying it as an enumerated public accommodation under Section 201, I would still be bound to find such Section inapplicable herein for those reasons previously noted.

 Our inquiry must thus return to a determination of whether defendant may be found under any state of facts which could be proved to be acting under color of state law in its continued practice of refusing service to women, and whether such practice has denied plaintiffs the equal protection of the laws as prescribed in the Fourteenth Amendment to the Constitution.

 Plaintiffs' inexpertly drafted pleadings appear vulnerable, at first blush, to defendant's motion to dismiss for failure to allege sufficient facts to state a valid claim under Section 1983. Padilla v. Lynch, 398 F.2d 481, 482 (9th Cir. 1968); Clawson v. Garland, 37 F.R.D. 324 (E.D.S.C.1965); Sigue v. Texas Gas Transmission Corp., 235 F. Supp. 155, 156 (W.D.La.1964), aff'd, 354 F.2d 40 (5th Cir. 1965). But it is well settled that pleadings are to be liberally construed so that a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiffs are entitled to no relief under any state of facts which could be proved in support of their claim. Williams v. Wheeling Steel Corp., 266 F. Supp. 651, 654 (N.D.W.Va.1967); Black v. Board of Educ., 31 F.R.D. 44, 46 (E.D.N.Y.1962); 2A J. Moore, Federal Practice para. 12.08 at 2266 (2d ed. 1968). After a thorough examination of applicable law, I, with due deference to my brother Port in DeCrow v. Hotel Syracuse Corp., supra, am not convinced beyond a reasonable doubt that plaintiffs' claim is without any merit and wholly frivolous or that plaintiffs would be unable to prove a right to relief. Accordingly, I find that plaintiffs have met their relatively slight burden in resisting defendant's motion to dismiss. Williams v. Wheeling Steel Corp., supra.

 The principle has become firmly embedded in American constitutional law that only such action as may fairly be said to be that of the States is inhibited by the Equal Protection Clause of the Fourteenth Amendment. So-called private discrimination, however distasteful or invidious, does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has become involved in it. Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961); Shelley v. Kraemer, 334 U.S. 1, 13, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). No infallible test has been formulated for determining whether the State in any of its manifestations or by any arrangement, management, sharing or granting of funds or property has become significantly involved in private discrimination. Burton v. Wilmington Parking Authority, supra ; Cooper v. Aaron, 358 U.S. 1, 4, 78 S. Ct. 1401, 3 L. Ed. 2d 5 (1958). Only by sifting facts and weighing circumstances on a case-by-case basis can nonobvious involvement of the State be attributed its true significance. Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967). This is especially true since the State involvement necessary to invoke the provisions of the Equal Protection Clause need not be exclusive or direct, United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966), and may be brought about through the State's administrative and regulatory agencies as well as through its legislature. Robinson v. Florida, 378 U.S. 153, 156, 84 S. Ct. 1693, 12 L. Ed. 2d 771 (1964).

 The power to grant a license for the sale of alcoholic beverages and to prescribe the limits and conditions of its exercise, in a field where absolute as well as conditional prohibition is permissible, is an attribute of sovereignty which is almost universally considered a part of a State's administrative process. There exists no vested right in the initial granting of such license, or in its continuance. The discretion exercised in granting or revoking a liquor license is an exercise of ultimate sovereignty commonly referred to as the State's police power. Bordenelli v. United States, 233 F.2d 120, 125, 16 Alaska 185. (9th Cir. 1956).

 It is the declared policy of the State of New York, as expressed in Section 2 of the Alcoholic Beverage Control Law, McKinney's Consol.Laws, c. 3-B (hereinafter referred to as the "Law") that:

[It] is necessary to regulate and control the * * * sale * * * of alcoholic beverages for the purpose of fostering and promoting temperance * * * and respect for and obedience to law. * * * [Such] policy will best be carried out by empowering the liquor authority of the state to determine whether public convenience and advantage will be promoted by the issuance of licenses to traffic in alcoholic beverages, the increase or decrease in the number thereof and the location of premises licensed thereby. * * * The restrictions, regulations and provisions contained in this chapter are enacted by the Legislature for the protection, health, welfare and safety of the people of the state.

 Section 17(7) of the Law permits the State Liquor Authority "[to] inspect or provide for the inspection of any premises where alcoholic beverages are * * * sold," while Sections 102 and 106 extensively prescribe prohibitions, conditions and provisions governing licensees who sell alcoholic beverages at retail for consumption on the premises of the licensee. Of course, by Section 65 of the Law, the State Legislature has prohibited licensees from selling or giving alcoholic beverages to anyone under the age of eighteen years, under the influence of liquor or known to be an habitual drunkard. *fn1"

 The question presented, then, is whether by virtue of this pervasive regulatory scheme the licensee may properly be considered an instrumentality of the State whose acts may, for the purposes of the Fourteenth Amendment, be considered the acts of the State itself. *fn2"

 Mr. Justice Harlan, in his dissent to the Civil Rights Cases, 109 U.S. 3, 58-59, 3 S. Ct. 18, 27 L. Ed. 835 (1883), ...

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