For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Proctor, J.
The appellant, Clover Hill Swimming Club, Inc. (Clover Hill), appeals from an order of the Director of the Division on Civil Rights (Division) directing it to admit the respondent, Dr. Robert F. Goldsboro, to membership, to delete from its application form the request for information concerning church activities, and to cease engaging in any practices violative of the Law Against Discrimination, N.J.S.A. 18:25-1 et seq. We certified the appeal on our own motion prior to argument in the Appellate Division.
On October 9, 1963 Dr. Goldsboro, a Negro veterinarian, filed a complaint with the Division alleging that he had been refused membership in Clover Hill because of his race. Thereafter, Clover Hill moved before the Appellate Division of the Superior Court for an order halting the proceedings on the ground that it was a distinctly private facility which was specifically
exempt from coverage by the Law Against Discrimination. The court, however, declined to decide the question since there was no factual proof before it as to the nature of the entity. When the matter came before a hearing examiner, Clover Hill again alleged that it was a distinctly private organization over which the Division had no jurisdiction. The hearing examiner decided to reserve decision on the jurisdictional question until all the evidence concerning Dr. Goldsboro's complaint had been heard, whereupon Clover Hill refused to participate further in the hearing. Bailey Brower, the president of Clover Hill, walked out of the hearing on the advice of counsel, although he was under subpoena at the time and had been directed by the hearing examiner to remain. The hearing proceeded without Clover Hill, following which the hearing examiner recommended findings that Clover Hill was a public accommodation within the purview of the Law Against Discrimination and that it denied its accommodations to Dr. Goldsboro because of his race. N.J.S.A. 18:25-8(l). These findings were adopted, over Clover Hill's objections, by the Director of the Division. N.J.S.A. 18:25-17.
The evidence before the hearing examiner showed the following facts: Clover Hill Swimming Club, Inc. was incorporated on October 6, 1961, under the General Corporation Act, N.J.S.A. 14:1-1 et seq., and is privately owned and operated for the purpose of returning a profit to its stockholders. It is organized principally to construct and operate "beach, swimming, tennis or recreation areas on the plan and form of a private membership club." The affairs of the corporation are managed by a four-man board of directors, all of whom must be stockholders. The president, who must be a director, has general control of the operation including the hiring, supervision, discharge and compensation of employees. No provision is made in the charter or the by-laws for any membership control of club activities. New members are recommended by a membership committee appointed by the board of directors. This committee, at the time of Dr. Goldsboro's
application, consisted of eight persons, including the president, his wife and two corporation employees. A unanimous vote of the members of the committee was required before an applicant could be admitted to membership in Clover Hill. The most active committee members appear to have been Mr. Brower, the president, his wife, and an employee, Mrs. John Miller.
Clover Hill began operations in 1963 and by the time Dr. Goldsboro applied in July of that year about 250 families held memberships, the total capacity of the club having been fixed at 400 families by the terms of the zoning variance under which it was built. Each member is required to buy a $350 debenture bond and to pay an annual fee of $150. The bond is non-interest bearing and non-transferable and the holder of a membership bond is given no voice in the conduct of the corporation's affairs.
During the period of construction and for some time thereafter, there was displayed at the entrance to Clover Hill a large sign (8' x 4') which read:
"Clover Hill. On this 170 acre site a private family club with complete recreational facilities. Lake swimming, tennis, skating, golfing. For information write or call P.O. Box 222, Millington, N.J., Fr 7-0658, Millington 7-9779."
The club also placed advertisements in several newspapers in the area. These advertisements, which gave safety advice to ice skaters, prominently displayed the club's name, address and post office box number.
Dr. Goldsboro, a resident of Passaic Township where Clover Hill is located, learned of the club from friends and from a newspaper article which described its facilities. He testified that he was attracted to nearby Clover Hill because he and his wife enjoyed swimming and because he wished to teach his son how to swim. He also testified that his annual income was $20,000 and that he would be capable of assuming the expenditures required of a club member. Dr. Goldsboro wrote to the club in July 1963 requesting an application, which he
received together with a two-page form letter and a brochure extolling Clover ...