APPEAL FROM THE SUPREME COURT OF FLORIDA.
Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg
MR. JUSTICE BLACK delivered the opinion of the Court.
A criminal information filed in a Florida state court charged that these eighteen appellants had violated
§ 509.141 of the Florida Statutes by remaining in a restaurant after the manager had requested them to leave.*fn1 The material facts are not in dispute and show: Shell's City Restaurant, which is one of nineteen departments in Shell's Department Store in Miami, had, at the time of appellants' arrest, a policy of refusing to serve Negroes. Appellants, Negroes and whites, went as a group into the restaurant and seated themselves at tables. In accordance with the restaurant's policy, the manager told appellants they would not be served. The manager called the police and, accompanied by one policeman, went to each table, again told appellants they would not be served, and requested them to leave. They refused. The police officers then advised them to leave, and when appellants persisted in their refusal the police placed them all under arrest.
At the trial, the Shell's City management explained that, while Negroes were welcomed as customers in the store's other departments, serving Negroes in the restaurant would be "very detrimental to our business" because of the objections of white customers. After these facts had been brought out during the examination of the State's witnesses, appellants moved for a directed verdict on the ground that their arrest, prosecution, and conviction by the State on this evidence would amount to state discrimination against them on account of color, thereby violating the Fourteenth Amendment's guarantee of equal protection of the laws. This motion was denied. The
appellants calling no witnesses, the trial court stayed the adjudication of guilt and the imposition of sentence and placed appellants on probation, as authorized by § 948.01 (3) of the Florida Statutes. On appeal, after various jurisdictional rulings in the Florida appellate courts,*fn2 the Supreme Court of Florida affirmed, holding the statute under which appellants were convicted to be nondiscriminatory. 144 So. 2d 811. The case is properly here on appeal under 28 U. S. C. § 1257 (2), and we noted probable jurisdiction. 374 U.S. 803.
In this case we do not reach the broad question whether the Fourteenth Amendment of its own force forbids a State to arrest and prosecute those who, having been asked to leave a restaurant because of their color, refuse to do so. For here there are additional circumstances which, we think, call for reversal because of our holding in Peterson v. City of Greenville, 373 U.S. 244. The petitioners in Peterson were convicted of trespass in violation of a city ordinance after they had seated themselves at a lunch counter and remained there over the manager's protest. At that time, however, there existed another Greenville ordinance which made it unlawful for restaurants to serve meals to white persons and colored persons in the same room or at the same table or counter. In Peterson the city argued that the manager's refusal to serve Negroes was based on his own personal preference, which did not amount to "state action" forbidden by the Fourteenth Amendment. But we held that the case must be decided on the basis of what the ordinance required people to do, not on the basis of what the manager wanted to do. We said:
"When a state agency passes a law compelling persons to discriminate against other persons because of race, and the State's criminal processes are employed
in a way which enforces the discrimination mandated by that law, such a palpable violation of the Fourteenth Amendment cannot be saved by attempting to separate the ...