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October 7, 1977

CITIZENS COUNCIL ON HUMAN RELATIONS, Buffalo Chapter of the National Organization for the Advancement of Colored Persons, National Organization of Women, Norman Goldfarb, Gail Vance, Marie LaMarco, Frank Mesiah, Daniel Acker and Douglas Goggins, Jr., Plaintiffs,
BUFFALO YACHT CLUB, Arthur D. Raszmann, Commodore, Hon. Stanley M. Makowski, Mayor, City of Buffalo, Leslie G. Foschio, Corporation Counsel, Gus Franczyk, Parks Commissioner, James F. Doherty, Councilman, Anthony M. Masiello, Councilman, Michael L. McCarthy, Councilman, Richard F. Okoniewski, Councilman, Gerald J. Whalen, Councilman, Harlan J. Swift, Jr., Councilman, George K. Arthur, Councilman, Shirley C. Stolarski, Councilman, Raymond Lewandowski, Councilman, Horace C. Johnson, Councilman, Angelo J. Fillippone, Councilman, John P. Reville, Jr., Councilman, Daniel J. Higgins, Councilman, William A. Price, Councilman, and City of Buffalo, Defendants

The opinion of the court was delivered by: ELFVIN


 ELFVIN, District Judge.

 This is a civil rights action alleging violations of the Fourteenth Amendment to the Constitution of the United States and of various federal civil rights statutes. Plaintiffs are seven individuals and three organizations -- namely, the Citizens Council on Human Relations ("CCHR"), the Buffalo Chapter of the National Association for the Advancement of Colored Persons ("NAACP") and the National Organization of Women ("NOW"). They allege discrimination based upon race, religion and sex. Defendants include the Buffalo Yacht Club ("the Club"), its Commodore, the City of Buffalo ("Buffalo") and the city's Mayor, Corporation Counsel, Parks Commissioner and 14 members of its Common Council. The case is now before me on defendants' motions pursuant to Fed.R.Civ.P. rule 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted.

 The Club, a private membership club, is housed in a privately-owned building which, however, is located on land owned by Buffalo and is adjacent to other public lands which are devoted to park purposes. Buffalo, pursuant to a resolution passed by its Common Council March 31, 1950, had approved a renewal agreement leasing the land on which the clubhouse sits to the Club for thirty years at the annual rate of one dollar, which renewal term commenced July 27, 1953. The original lease had been in effect since 1923. The agreement grants to the Club the exclusive use and sole possession of the public land thus leased. It is alleged that the rental fee is grossly inadequate and represents a substantial financial contribution and subsidy by Buffalo to the Club.

 Under the terms of the renewal lease, the Club is required to permit public access to the surrounding park land, including moorings and docks, pursuant to rules and regulations which were to have been established by the Club and approved by the Parks Commissioner. No such rules or regulations have yet been established or approved. In addition, the maintenance of the club-house is under the general supervision of said Commissioner. Pursuant to this agreement, Buffalo receives certain benefits, including the development and care of public park land, insurance protection purchased by the Club, promises of indemnification for all claims and damages relating to the use of the park land leased to the Club, increased city taxes and sewer and water revenues on any improvements made to the leased parcel.

 The Club has facilities to serve food and alcoholic beverages and possesses a restaurant license granted to it by Buffalo and a New York State liquor license. The Club opens its premises to parties and dinners for public functions and serves food and alcoholic beverages to those who attend such affairs, including non-members.

 The by-laws of the Club provide that an applicant for membership must be sponsored by two members. After the applicant has secured such sponsorship, the Club's Board of Directors votes by secret ballot whether or not to approve the application. The adverse vote of any two members of the Board results in rejection of the particular application.

 Plaintiff Goggins, a black person, expressed an interest in joining the Club and was invited to discuss the prospects of membership with members of the Club. After being informed of the admissions procedure, Goggins refrained from submitting an application for membership, allegedly in order to avoid the embarrassment of having his application rejected because of his race. It is alleged that he has been denied the full and equal enjoyment of the Club's facilities because of racial discrimination. It is further alleged that plaintiffs Acker and Mesiah (each of whom is a black person), along with CCHR and NAACP, are embarrassed and harmed by the alleged racial discrimination which has been perpetuated by the Club's sponsorship method of gaining membership. The Club has one non-resident black member.

 The female plaintiffs, Vance and LaMarco, requested applications for membership and were informed by the Club that applications would not be sent to them until each had been sponsored by two of the present members. The Club's by-laws provide that membership is restricted to men and no woman has ever been sponsored or approved for membership. The Club has not yet forwarded applications to said female plaintiffs. It is alleged that Vance and LaMarco are thereby denied the full and equal enjoyment of the services, facilities, privileges and advantages of the Club because of sex discrimination and that CCHR and NOW are embarrassed and harmed by this alleged sex discrimination.

 During 1973, CCHR filed a complaint with Buffalo's Commission on Human Relations alleging that three Jewish individuals, who are not plaintiffs in the present case, had been denied membership by the Club because of their religious beliefs. In June of 1974, the Commission found probable cause that these individuals had been discriminated against because of their religious faith. Subsequent to said finding, the public defendants refused the request of plaintiffs CCHR, Goldfarb and Mesiah to terminate the lease between Buffalo and the Club. It is alleged that Jewish plaintiffs Goldfarb and Glickman and CCHR are embarrassed and harmed by this alleged religious discrimination. Some Jewish applicants have been approved for membership by the Club.

 Each individual plaintiff believes that the filing of an application for membership would be a futile gesture in light of the Club's by-laws, sponsorship system and the past and present membership composition. Goggins and Acker are members of NAACP and Goldfarb and Mesiah are members of both CCHR and NAACP. Glickman, Vance and LaMarco are not members of any of the organizational plaintiffs.

 The threshold issue to be determined is whether any of the plaintiffs has standing to bring the instant action. The requirement of standing ensures that

"* * * the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution." Flast v. Cohen, 392 U.S. 83, 106, 88 S. Ct. 1942, 1955, 20 L. Ed. 2d 947 (1968).

 It is now settled that a plaintiff must satisfy a two-pronged test to establish standing. One must allege that he or she has suffered or will suffer an injury in fact, and must seek to protect an interest arguably within the zone of interest protected by the statute or statutes in question. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970). In the present case, the second criterion is clearly satisfied as the rights allegedly violated fall within the purview of federal civil ...

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