4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 1 of 16 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION COMPLAINT

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1 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 1 of 16 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC.; THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., CONWAY BRANCH; CLAYTON BROWN; JERMAINE BROWN; and KRIS BRYANT, Civil Action No. COMPLAINT Plaintiffs, v. LEFTIS FOODS, INC., d/b/a PAN AMERICAN PANCAKE & OMELET HOUSE, Defendants. Plaintiffs, through their attorneys, allege the following: 1. This is an action for declaratory, injunctive, monetary, and other relief under federal and state laws that guarantee African Americans equal rights to contract and to enjoy places of public accommodation. 2. The action arises out of the discriminatory and unlawful conduct of Leftis Foods, Inc., the corporate entity that owns and operates a restaurant called Pan American Pancake & Omelet House ( Pan American ). 3. Pan American is located in Myrtle Beach, South Carolina, directly south of Atlantic Beach and North Myrtle Beach.

2 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 2 of Each May, these cities and surrounding communities are the focal points of two of the nation s largest motorcycle rallies. One, Harley Davidson Spring Bike Rally (or Harley Week ), is attended almost exclusively by white motorcycle enthusiasts. The other, known as Black Bike Week, is attended almost exclusively by African American motorcycle enthusiasts. 5. For years, a number of hotels, motels, and restaurants in the city of Myrtle Beach and North Myrtle Beach have engaged in a pattern and practice of discrimination against African Americans by refusing to serve African American patrons during Black Bike Week. By contrast, those same places of public accommodation have been open for service during Harley Week, when predominantly white motorcyclists visit the Myrtle Beach Area. 6. One restaurant that has engaged in this discriminatory and unlawful practice is Pan American. During Black Bike Week 2010, the only time of the year when the majority of tourists to Myrtle Beach and the surrounding cities were African American, Pan American refused to serve customers during its otherwise customary business hours. 7. To address this discriminatory conduct by Pan American, Plaintiffs bring these claims under 42 U.S.C. 2000a-3, 42 U.S.C. 1988, 42 U.S.C. 1981, and South Carolina Code Plaintiffs are African American individuals and members of the NAACP and/or the Conway Branch of the NAACP who would have eaten at Pan American during Black Bike Week but for the discriminatory conduct of the Defendants. Plaintiffs have been, continue to be, and will in the future be harmed by Defendants unlawful and discriminatory conduct. Plaintiffs therefore seek the declaratory, injunctive, monetary, and other relief set forth below. JURISDICTION AND VENUE 9. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331, 28 U.S.C. 1343(a), 28 U.S.C. 1367, and 42 U.S.C. 2000a-6. 2

3 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 3 of Venue is proper in the District of South Carolina pursuant to 28 U.S.C. 1391(b)(1) and (b)(2). PARTIES 11. Plaintiff The National Association for the Advancement of Colored People, Inc. (the NAACP ) is a membership-based non-profit association organized under the laws of the State of New York. The NAACP is registered to do business in the State of South Carolina. 12. Plaintiff The National Association for the Advancement of Colored People, Inc., Conway Branch (the Conway Branch ) is an unincorporated unit of the NAACP that currently operates in the region including and surrounding Conway, South Carolina. The cities of Atlantic Beach, Myrtle Beach, and North Myrtle Beach are each within the region in which the Conway Branch operates. 13. On November 12, 2010, the NAACP and the Conway Branch filed a complaint against Pan American with the South Carolina Human Affairs Commission ( SCHAC ). The complaint charged that Pan American discriminated against African Americans by refusing service to African American patrons and discouraging African Americans from patronizing Pan American during Black Bike Week SCHAC has issued the NAACP and its Conway Branch a right-to-sue notice. 14. Plaintiff Clayton Brown is an African American individual currently residing in Leland, North Carolina. During Black Bike Week 2010, Mr. Brown attempted to dine at Pan American during the restaurant s customary business hours. Although he had the means to purchase food and beverages, he was refused service. On November 5, 2010, Mr. Brown filed charges of discrimination against Pan American with SCHAC and has been issued a right-to-sue notice. 3

4 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 4 of Plaintiff Jermaine Brown is an African American individual currently residing in Leland, North Carolina. During Black Bike Week 2010, Mr. Brown attempted to dine at Pan American during the restaurant s customary business hours. Although he had the means to purchase food and beverages, he was refused service. On November 5, 2010, Mr. Brown filed charges of discrimination against Pan American with SCHAC and has been issued a right-to-sue notice. 16. Plaintiff Kris Bryant is an African American individual currently residing in Riegelwood, North Carolina. During Black Bike Week 2010, Mr. Bryant attempted to dine at Pan American during the restaurant s customary business hours. Although he had the means to purchase food and beverages, he was refused service. On November 5, 2010, Mr. Bryant filed charges of discrimination against Pan American with SCHAC and has been issued a right-to-sue notice. 17. On information and belief, Defendant Leftis Foods, Inc. owns and operates Pan American, a restaurant located at 1305 S. Kings Highway, Myrtle Beach, South Carolina. On information and belief, all operations and all employees of Pan American have been controlled, directed, and supervised by Leftis Foods, Inc. On information and belief, Leftis Foods, Inc. has knowledge of and approves of all the conduct of Pan American and its employees. 18. Pan American is a place of public accommodation principally engaged in selling food and beverages for consumption on the premises. Pan American is open to, and serves, the public. 19. Pan American is licensed and permitted by the City of Myrtle Beach to operate as a retail food establishment. 4

5 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 5 of 16 FACTUAL ALLEGATIONS HARLEY WEEK AND BLACK BIKE WEEK 20. Every year for many years, the City of Myrtle Beach and surrounding communities have been the hosts of two bike rallies: Harley Week and Black Bike Week. Harley Week 21. Established in 1940, Harley Week is a long-running spring motorcycle rally whose attendees are almost exclusively white. 22. Over the years, there have been significant public disturbances during Harley Week, including an armed confrontation between Myrtle Beach police and white biker gangs in In 1994, fights and skirmishes between white biker gangs such as the Pagans and Hells Angels flared up during Harley Week. Part of Ocean Boulevard in Myrtle Beach was closed for an entire afternoon in an effort to control the fighting. 23. Despite these problems, resorts and businesses in the Myrtle Beach area, including Pan American, have continued to offer service and cater to the bikers who attend Harley Week. Black Bike Week 24. Established in 1980, Black Bike Week is also a spring motorcycle rally. It is held during Memorial Day weekend, and the attendees are almost exclusively African American. 25. The rally originated in the City of Atlantic Beach, South Carolina. Atlantic Beach is a tiny, historically African American community. Its total land size is approximately twotenths of a square mile. In 2010, at the time of the last census, its population was 334 individuals, over 50% of whom were African American. 26. As Black Bike Week grew in size, it expanded into the neighboring cities of Myrtle Beach and North Myrtle Beach. In 2010, the population of Myrtle Beach was 5

6 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 6 of 16 approximately 72% white. The population of nearby North Myrtle Beach which surrounds Atlantic Beach on three sides was more than 90% white in Black Bike Week is the only time of year when the majority of tourists to Myrtle Beach, North Myrtle Beach, and the surrounding cities are African American. 28. As Black Bike Week expanded into Myrtle Beach and North Myrtle Beach, the leaders of the Myrtle Beach government and hospitality industry most of whom are white exhibited overt hostility to the Black Bike Week festival because it attracted a large number of African Americans to the area during Memorial Day weekend. 29. There have been no major skirmishes between the police and persons attending Black Bike Week like those that occurred during Harley Week in 1983 and Myrtle Beach city officials and community leaders nonetheless sought to discourage Black Bike Week in order to prevent African Americans from visiting the area. 30. In the late 1990s, Myrtle Beach elected as its mayor a candidate, Mark McBride, who publicly advocated eliminating Black Bike Week events in Myrtle Beach. During his tenure as mayor, Mr. McBride unsuccessfully lobbied the State of South Carolina to deploy the National Guard to Myrtle Beach during Black Bike Week. Mr. McBride never requested that the National Guard police any other event of similar size, including Harley Week. 31. Over the years, it became a tradition during both Harley Week and Black Bike Week for tourists to gather along a major Myrtle Beach thoroughfare, Ocean Boulevard, to watch enthusiasts exhibit their motorcycles. In 1999, during Black Bike Week, the City of Myrtle Beach adopted a traffic management plan that limited traffic along Ocean Boulevard to two of four total lanes, and restricted travel to a single direction for the entire length of the boulevard. With few exceptions, right turns off the boulevard were not permitted. 6

7 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 7 of The effect of the plan was to make it more difficult and less enjoyable for tourists and motorcycle enthusiasts to travel along Ocean Boulevard. The traffic plan was not originally imposed during Harley Week. 33. In 2001, in response to concerns that having different traffic plans during Harley Week and Black Bike Week was racially discriminatory, the city of Myrtle Beach implemented the plan during Harley Week. The owners and operators of local businesses complained vociferously about the change, and Myrtle Beach lifted the restrictions after only three days. By contrast, the traffic plan was retained unchanged for Black Bike Week. 34. In 2002, business owners were pressured to decline to participate in Black Bike Week events sponsored by the Town of Atlantic Beach that were intended to attract families to the festival. 35. Brochures distributed and not distributed by the Myrtle Beach Area Chamber of Commerce and the Bike Week Task Force also reflect the hostile attitude of businesses and government officials in Myrtle Beach and surrounding areas toward African American visitors. 36. For Harley Week 2002, the Chamber of Commerce distributed two 30-page color brochures with a Welcome Letter from the Myrtle Beach Chief of Police welcoming visitors, thanking them, and concluding that he hoped they would return to Myrtle Beach. 37. For Black Bike Week 2002, the Chamber of Commerce and the Bike Week Task Force which included representatives from the cities of Myrtle Beach and North Myrtle Beach were provided with brochures to be distributed. The brochures were designed by a firm hired by the city of Atlantic Beach, and were delivered well in advance of Black Bike Week for distribution. The brochure included a welcome letter from the Mayor of Atlantic Beach and a 7

8 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 8 of 16 schedule of entertainment activities. The Chamber of Commerce and the Task Force declined to distribute the brochures. 38. Instead, during Black Bike Week 2002, the Chamber of Commerce distributed a two-page flyer listing traffic laws and the location of local jails. The flyer included no welcome letter or schedule of events. 39. In 2008 the City of Myrtle Beach, supported by the Chamber of Commerce, enacted a series of ordinances that it claimed were intended to end or curtail both bike rallies in Myrtle Beach. Those ordinances were enforced much more harshly against Black Bike Week visitors thus furthering the long held goals of the city and the Chamber of Commerce to rid the area of Black Bike Week. In spite of those ordinances substantial numbers of African Americans continued to visit the City of Myrtle Beach and Myrtle Beach area for Black Bike Week. The 2010 Rallies 40. In 2010, Harley Week was held from Friday, May 7 to Sunday, May 16. Black Bike Week took place from Friday, May 28 through Monday, May 31. On information and belief, both of the motorcycle rallies were attended by hundreds of thousands of people. FACTUAL ALLEGATIONS LEFTIS FOODS, INC. D/B/A PAN AMERICAN 41. The attendees of both Harley Week and Black Bike Week seek out accommodations and restaurants in the Myrtle Beach area. 42. Throughout the year for every year up to and including 2010, Pan American s customary business hours were from 10:00 p.m. in the evening to 2:00 p.m. the following day, seven days a week. 8

9 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 9 of Many people who travel to South Carolina for Black Bike Week stay at hotels located in the vicinity of Pan American. These individuals seek out restaurants in the Myrtle Beach area. 44. Plaintiffs Clayton Brown, Jermaine Brown, and Kris Bryant stayed at a hotel on Ocean Boulevard in the vicinity of Pan American during Black Bike Week During Black Bike Week 2010, Plaintiffs Clayton Brown, Jermaine Brown, and Kris Bryant would have dined at Pan American during its regular business hours but were refused service. 46. At approximately 6:00 a.m. on May 30, 2010, Plaintiffs Clayton Brown, Jermaine Brown, and Kris Bryant entered Pan American during the restaurant s normal business hours. Immediately after entering the premises, they were told by two white employees that Pan American was closed. Neither employee offered any rationale for the restaurant s closing during its customary business hours. 47. Although the two employees claimed that Pan American was closed, Plaintiffs Clayton Brown, Jermaine Brown, and Kris Brown observed a number of white individuals at different tables being served food and beverages. Those white individuals appeared to have been recently seated. 48. After they exited Pan American, Plaintiffs Clayton Brown, Jermaine Brown, and Kris Brown observed a white male enter Pan American. The same two employees that refused to serve Plaintiffs Clayton Brown, Jermaine Brown, and Kris Brown seated the white male, gave him a menu, and poured him a cup of coffee. 49. On information and belief, Pan American s refusal to serve Plaintiffs Clayton Brown, Jermaine Brown, and Kris Brown was part of a pattern and practice of refusing to serve 9

10 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 10 of 16 African American visitors to Black Bike Week. On information and belief, Pan American has been open during its regular business hours during Harley Week in every year since the restaurant opened, but has not refused to serve similarly situated white customers. 50. In November 2010, Clayton Brown, Jermaine Brown, and Kris Bryant filed complaints with SCHAC charging that Pan American discriminated against African Americans by refusing to serve them during Black Bike Week During Black Bike Week 2010, Defendants, through its employees, agents, and/or representatives, refused to serve or otherwise denied Plaintiffs food and beverages because of their race. 52. Defendants discriminatory conduct and practices described above were carried out (a) at the direction of and with the consent, encouragement, knowledge, and ratification of Defendants; (b) under Defendants authority, control, and supervision; and/or (c) within the scope of Defendants employees employment. 53. The actions of Defendants, whether undertaken as company policy or through its employees, agents, and/or representatives, were undertaken with racially discriminatory animus for the purpose of denying African Americans access to a place of public accommodation. 54. Defendants actions, whether undertaken as company policy or through its employees, agents, and/or representatives, had the effect of denying African Americans access to a place of public accommodation on the basis of race. 55. On information and belief, Defendants actions, whether undertaken as company policy or through its employees, agents, and/or representatives, constitute a pattern and practice of discrimination against African Americans. 10

11 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 11 of Defendants through company policy and through the actions of its employees, agents, and/or representatives, acted intentionally, maliciously, and with willful, callous, wanton, and reckless disregard for Plaintiffs protected rights. 57. On information and belief, Defendants and their agents, employees, and/or representatives have served or have offered to serve numerous white interstate travelers, including tourists who visit the Myrtle Beach area from around the country during Harley Week and throughout the year. 58. On information and belief, a substantial portion of the food served by Defendants and their agents, employees, and/or representatives traveled in interstate commerce. INJURIES TO PLAINTIFFS NAACP AND THE CONWAY BRANCH 59. The discriminatory actions of Defendants have harmed the NAACP and the Conway Branch. 60. Beginning in 2000 and continuing on an ongoing basis thereafter, in response to multiple complaints of discrimination by public and private entities, the NAACP and the Conway Branch have monitored and investigated the treatment of African Americans in the Myrtle Beach area during Black Bike Week and the treatment of similarly-situated white tourists during Harley Week and other well-attended events. The NAACP s monitoring and investigation efforts have included the use of observations, interviews, intakes, and other investigative methods. 61. The NAACP and the Conway Branch have been notified of and have received formal complaints of discrimination relating to, the conduct of Defendants and their employees, agents, and/or representatives during Black Bike Week. 11

12 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 12 of The NAACP and the Conway Branch have monitored Defendants treatment of African Americans during Black Bike Week and have investigated the complaints against Defendants through observation, interviews, intakes, and other investigative methods. 63. The NAACP and the Conway Branch have devoted resources to conducting such monitoring and investigation, including professional and administrative support, volunteer time, out-of-pocket expenditures, and other financial resources. 64. The unlawful discriminatory actions of Defendants have injured the NAACP and the Conway Branch by (a) requiring the NAACP and the Conway Branch to commit scarce resources to investigating complaints and monitoring Defendants conduct; (b) interfering with and undermining NAACP and Conway Branch programs intended to eliminate racial discrimination; and (c) frustrating the mission and purpose of the NAACP and the Conway Branch to promote equality of opportunity in places of public accommodation and in every aspect of the country s and Conway s economic and social life. 65. Defendants unlawful conduct will require the NAACP and the Conway Branch to counteract such conduct by devoting additional resources to investigation and monitoring. 66. Defendants unlawful conduct threatens to harm members of the NAACP and the Conway Branch in the future. Members of the NAACP and the Conway Branch will travel to Myrtle Beach for future Black Bike Weeks, and some of those members will seek out the opportunity to purchase food and beverages from Pan American. INJURIES TO INDIVIDUAL PLAINTIFFS 67. As a proximate result of unlawful conduct by Defendants and their agents, employees, and/or representatives, the individual Plaintiffs have suffered and are now suffering irreparable loss, injury, emotional harm, mental anguish, embarrassment, humiliation, and degradation. 12

13 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 13 of Plaintiffs are likely to suffer irreparable loss and injury in the future: Plaintiffs are likely to visit the Myrtle Beach area and attempt to dine at Pan American during future Black Bike Weeks, at which time they may again face the discriminatory conduct of the Defendants and their agents, employees, and/or representatives. COUNT I 42 U.S.C. 2000a 69. The individual Plaintiffs, and the NAACP and the Conway Branch on their own behalf and on behalf of their members, reallege and incorporate by reference Paragraphs 1 through 68 as though set forth fully herein. 70. Pan American is a place of public accommodation within the meaning of 42 U.S.C. 2000a(b)(2). It is engaged in selling food for consumption on the premises. 71. Defendants actions, as described above, have had and continue to have the purpose and effect of denying Plaintiffs the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of Pan American on the basis of race, in violation of 42 U.S.C. 2000a. COUNT II SOUTH CAROLINA PUBLIC ACCOMMODATIONS ACT 72. The individual Plaintiffs, and the NAACP and the Conway Branch on their own behalf and on behalf of their members, reallege and incorporate by reference Paragraphs 1 through 71 as though set forth fully herein. 73. Defendants actions, as described above, have had and continue to have the purpose and effect of denying Plaintiffs the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of Pan American on the basis of race, in violation of Article I of the South Carolina Public Accommodations Act, S.C. Code

14 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 14 of 16 COUNT III 42 U.S.C The individual Plaintiffs, on their own behalf, reallege and incorporate by reference Paragraphs 1 through 73 as though set forth fully herein. 75. By the actions described above, Defendants have denied Plaintiffs the same right to make and enforce contracts as is enjoyed by white citizens of the United States in violation of 42 U.S.C PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court: a) enter a declaratory judgment finding that Defendants engaged in a pattern and practice of discrimination and violated 42 U.S.C. 2000a and S.C. Code ; b) pursuant to 42 U.S.C. 2000a-3, enter preliminary and permanent injunctions barring Defendants from continuing to engage in the illegal discriminatory conduct alleged in this Complaint; c) pursuant to 42 U.S.C. 2000a-3, enter preliminary and permanent injunctions directing Defendants to take all affirmative steps necessary to remedy the effects of the illegal discriminatory conduct alleged in this Complaint and to prevent repeated occurrences in the future; d) pursuant to South Carolina Code , award statutory damages in the minimum amount of $5,000 to each Plaintiff for each violation of Article I of the South Carolina Public Accommodations Law; e) enter a declaratory judgment finding that Defendants violated 42 U.S.C. 1981; f) pursuant to 42 U.S.C. 1981, award compensatory damages to the Plaintiffs in an amount determined by the jury that would fully compensate each of them for the injuries, emotional harm, mental anguish, embarrassment, humiliation, and degradation caused by Defendants misconduct alleged in this Complaint; g) pursuant to 42 U.S.C. 1981, award punitive damages to the Plaintiffs in an amount determined by the jury that would punish 14

15 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 15 of 16 Defendants for the intentional, willful, wanton, and reckless misconduct alleged in this Complaint and that would effectively deter Defendants from future discriminatory behavior; h) pursuant to 42 U.S.C. 2000a-3, 42 U.S.C. 1988, and 42 U.S.C. 1981, award Plaintiffs their reasonable attorneys fees and costs; and i) order all other relief deemed just and equitable by this Court. Plaintiffs request a trial by jury. DEMAND FOR TRIAL BY JURY Dated this 27th day of May, Respectfully submitted, /s/ D. Peters Wilborn, Jr. D. Peters Wilborn, Jr., Federal ID #7609 DERFNER, ALTMAN & WILBORN, L.L.C. 575 King Street P.O. Box 600 Charleston, SC (843) (Tel.) (843) (Fax) Intend to file motions to appear pro hac vice: Anthony Herman Henry Liu Andrew Soukup Jihad Beauchman COVINGTON & BURLING LLP 1201 Pennsylvania Ave., NW Washington, DC (202) (Tel.) (202) (Fax) Intend to file motions to appear pro hac vice: Emily Read Richard Ritter WASHINGTON LAWYER S COMMITTEE FOR CIVIL RIGHTS AND URBAN 15

16 4:11-cv RBH Date Filed 05/27/11 Entry Number 1 Page 16 of 16 AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, DC (202) (Tel.) (202) (Fax) 16