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Closed to all, discriminatory to some?

By: David Donovan//October 12, 2012

Closed to all, discriminatory to some?

By: David Donovan//October 12, 2012

The NAACP is suing a North Myrtle Beach restaurant under the Civil Rights Act, saying that the restaurant closed down for “renovations” for several straight years during Black Bike Week, a motorcycle festival predominantly attended by African-Americans. It claims that the closures were motivated by racial prejudice, and that no actual renovations occurred during any of the weeks the restaurant was shut down.

A federal judge has ruled that the lawsuit may proceed to trial, denying the restaurant’s motion to dismiss the claims of racially discriminatory policies.

The restaurant, Molly Darcy’s on the Beach, is a beachfront Irish-themed restaurant. The NAACP claims that the restaurant remained open for all other weeks each year, including during other motorcycle festivals. Black Bike Week takes place during the days leading up to and including Memorial Day — ordinarily a big weekend for business at restaurants.

Attorneys for the restaurant conceded that it had been closed for those weeks, but argued that the decision to shut down a restaurant entirely for a week could not be discriminatory against any racial group. In its motion to dismiss, it argued that “each of the statutes relied upon requires a showing that Plaintiffs were deprived of a right or accommodation afforded to others. This is not the case; the restaurant, when open, was open to all, and when closed, was closed to all.”

But United States District Judge R. Bryan Harwell said this reasoning ducked the crux of the case. The NAACP had alleged that the restaurant’s decision to temporarily close to the public was made with racially discriminatory animus in order to deny African-Americans access to a place of public accommodation. Taking that allegation as true for the purposes of summary judgment, Harwell could not say that the NAACP had failed to state a claim for which the court could grant relief.

“Indeed, a determination that intentional racial discrimination, as a matter of law, does not exist when a restaurant temporarily closes its doors to all patrons during a predominantly African-American festival would ignore the subtle but significant factual questions that this action raises and conflict with the intent of Congress and the spirit of these causes of action in rooting out intentional racial discrimination,” Harwell wrote.

Harwell said that the NAACP’s allegation of intentional discrimination was strengthened by its allegations that the restaurant’s decision to temporarily close during Black Bike Week disproportionately impacted African-American patrons after the restaurant remained open for business during the predominantly white Harley Week, which occurred less than a week prior.

The court also rejected arguments that the NAACP lacked standing to sue because it failed to demonstrate a real or immediate threat that the restaurant would discriminate against African-American patrons in the future. Harwell said the restaurant could not take away the court’s right to hear the case simply by changing its business practices in the future.

Andrew Soukup, Donald J. Ridings Jr., Henry Liu and Jilhad F. Beauchman of Covington and Burling in Washington, D.C. represented the NAACP, with Peter Wilborn of Derfner Altman & Wilborn in Charleston as local counsel. Philip C. Thompson of Thompson and Henry in Conway represented the restaurant.

Attorneys for both the NAACP and for Molly Darcy’s said they could not comment on an ongoing case.

The 17-page decision is National Association for the Advancement of Colored People, Inc. v. Molly Darcy, Inc. (Lawyers Weekly No. 002-162-12). A full opinion brief can be found online at

Follow David Donovan on Twitter @SCLWDonovan


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