In looking back over my blog entries, all 274 of them to date, I have never really talked about the private club defense. I did allude to it here when I was talking about fraternities. Today’s case, Lobel v. Woodland Golf Club of Auburndale , squarely addresses that issue. As is usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to read any or all of the categories.

I

Facts:

Plaintiff a retired broadcaster with significant mobility impairments and a golf fanatic was invited to play a round of golf at the Woodland Golf Club of Auburndale by a club member. Plaintiff when golfing uses a Solorider. He tried to negotiate the use of the Solorider before he would play golf at the club but the negotiations failed. He subsequently sued alleging violations of title III of the ADA. The golf club defended on the ground that it was a private club and not covered by the ADA at all.

II

Court’s Reasoning

  1. 42 U.S.C. §12187 says that title III of the ADA does not apply to private clubs or establishments exempt from coverage under title II of the Civil Rights Act of 1964 or to religious organizations or entities controlled by religious organizations, including places of worship.
  2. Defending on the basis of being a private club is an affirmative defense.
  3. The court relying on another case from the Eastern District of Pennsylvania said that determining whether a private club exists involves looking at eight factors and they are: 1) the genuine selectivity of the group in the admission of its members; 2) the membership’s control over the operations of the establishment; 3) the history of the organization; 4) the use of the facility by nonmembers; 5) the purpose of the club’s existence; 6) whether the club advertises for members; 7) whether the club is for profit or nonprofit; and 8) the formalities observed by the club, such as bylaws, meeting, membership cards, etc.
  4. The most important factor in ascertaining private club status is the genuine selectivity of the group in the admission of its members. The characteristics reflecting a genuine selectivity include: the formality of the club’s admission procedure; the standards or criteria for admission; the membership’s control over the selection of new members; the numerical limits on club membership; the substantiality of the membership fee; and the extent to which applicants have been denied admission.
  5. The procedures of Woodland are such that they decide which members of the public are able to access an application for membership. Such a limitation on who gets to apply is a hallmark of selectivity.
  6. Applicants to the golf club follow a set procedure in order to be considered for membership. They have to fill out an application, provide letters of recommendation from current members, and attend at least one interview with a current member.
  7. In the initial application, a prospective member must detail his or her educational and employment history, describe his or her involvement in social and civic activities, and provide three written statements and two letters of recommendations from current members describing why the applicant would be a positive addition to the club and is “strong qualified,” for membership. Such a level of inquiry into the background and character of applicants suggest formality and selectivity.
  8. There is also a required interview, which may involve a round of golf, and that weighs in favor of a finding of selectivity as well.
  9. The club’s existing members exercise control over the selection of new members. After submitting the initial application, obtaining sponsorship, and completing interviews, the Woodland board must then vote to approve any application for membership. Requiring the board to vote to approve or deny all membership applications means the club’s members ultimately have control over the admission of new members.
  10. The club limits the number of golf members and that weighs in favor of a finding of selectivity.
  11. Members must pay a substantial admission fee once admitted. Upon admission, a new member has to pay a nonrefundable $55,000 initiation fee. After that, a family of four must pay approximately $14,000 per year in dues, assessment, and food minimums. Such substantial fees weigh heavily in favor of a selectivity finding.
  12. The club rarely rejects applicant for membership and that cuts against a genuinely selective membership process. However, this factor by itself does not outweigh the other factors. The need for member sponsors, the application process, and the very considerable initiation fee imposes a significant level of self-selection so that few individuals making it through the admission procedure are ultimately denied.
  13. Control of an establishment’s operation by members is another factor that weighs in favor of private club status. Factors indicating sufficient membership control include: members having an ownership stake in the club’s property; members voting on club business; membership control over the admission of new members; and membership control over revenue decisions.
  14. The club has a category of membership called senior resident or honorary life membership. People in that category have an ownership stake in the club’s property and hold proprietary interests in the club and its assets. The senior resident and honorary life members are elected from among all the members of the club. The senior resident and honorary life members vote to elect the club’s officers and directors and also vote on such operational issues as proposed amendments to governing documents, proposed increases in dues or assessment, and they also are responsible for approving unusual expenditures or expenditures of more than $75,000.
  15. While the club has a general manager, a club does not relinquish control over the facility’s operation solely by employing a general manager who is intimately involved with the club’s day-to-day activities and who makes day-to-day management decisions.
  16. Establishments that advertise and solicit members do not fall within the private club exemption. In particular, any advertising designed to increase patronage of the club and the use of their facilities cuts against private club status. So, when considering this factor, the critical question is whether and, if so, to what extent and in what manner an establishment publicly advertises to solicit members or to promote the use of the facilities or services by the general public. In this situation, all Woodland does is provide a membership tab for prospective members to request additional information regarding the club’s membership procedures. Providing such a tab is not the type of expansive effort to draw residents of the local community into the club’s membership. Further, there was no evidence presented that the club actively uses its website or Facebook page to solicit or recruit new members. Therefore, the club cannot be said to be advertising and soliciting members in a way that compromises its private club status.
  17. Even if this online presence does assist in growing membership, selectively attempting to increase membership does not rise to the level advertising and marketing required to weigh against the club being a private club. That is, the medium used does not change the basic requirement that there must be an active effort to solicit new members from the general public in order for advertising to compromise private club status.
  18. A public Facebook page, without more, is not indicative of advertising designed to increase patronage of the club’s facilities because a public website and Facebook page requires less administrative upkeep and allows less technologically sophisticated members to view the online content without having to use a login portal or a request to be added to a private online group.
  19. Regular or indiscriminate use of an establishment’s facilities by nonmembers contradicts private status. Woodland’s guest policy does not permit unfettered use of facility by guests and therefore, weighs in favor of a finding of private club status.
  20. Outside of special events, such as weddings or golf tournament, non-members have no access to the club unless invited and accompanied by a member.
  21. The club’s guest policy requires members to pay a guest fee, cover all charges incurred by the guest, and accompany the guest during his or her time at the club. Courts regularly find that clubs where members have to pay a guest fee and accompany guests within the club are private and exempt from the ADA.
  22. The guest policy of the club also limits how many guests can play golf at any given time, the times and days when guests are allowed to golf, and how often any one guest can golf at the club in a month. Such limits are also indicative of private club status.
  23. While it is true, that the club permits guests, non-members and/or the general public full access to the club during functions, such as weddings and golf tournaments (29 golf events in 2014 and 2015 were open to non-members), occasional use of the club facility by non-members did not convert the club into a place of public accommodation under the ADA. The majority of these events occurred when the course would otherwise normally be closed. All but six of those events were held on a Monday, or a Tuesday following a Monday holiday, when the golf course is usually closed to members. No event including non-members was held on a weekend when the golf courses are at peak use. The six occasions in two years where the golf course was available to non-members during normal operating hours are not sufficient to transform the club into a place of public accommodation.
  24. The club’s policy of allowing members themselves to host events open to non-members, such as weddings and receptions, does not preclude a finding of private club status.
  25. The club’s banquet facilities and golf course are not available for rent to the general public on a first-come, first-served basis. Instead, the general manager has discretion over whether to allow events to be held on the premises.

III

Takeaways:

  1. This case is a tour de force for when a private club exemption applies to the ADA. It appears to be an unpublished case, but that should not stop counsel from using this case as a matter of preventive law. Also, the eight factor test used by the court comes from a published case, United States v. Lansdowne Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989).
  2. The private club exemption is an affirmative defense and must be pleaded, though there may be some slack, which may have happened in this case, as to whether it has been pleaded sufficiently. As a matter of good practice, I would not rely on the court to give any slack and explicitly plead the private club exemption, if applicable.
  3. It is important for a private club to stick to its formal processes.
  4. If a club is serious about keeping the private club exemption, two areas it definitely wants to look at are the use of the facility by nonmembers and how it goes about advertising for members. Both of those areas could quickly turn a private club into a place of public accommodation.
  5. The court by its tone in this case seems to be strongly suggesting that the private club exemption is a narrow one and the application of the eight factors are subject to a rigorous analysis. Accordingly, it isn’t clear to me, in fact it would seem unlikely, whether fraternities would be able to survive the eight factor test and be considered exempt from the ADA as a private club. Of course, this is a District Court decision from Massachusetts and not binding upon the rest of the country. That said, as mentioned above, it is a great tool for preventive law for any attorney advising organizations that might be private clubs.
  6. The private club exemption talks about being controlled by religious organizations. That can be a huge exemption. For example, many healthcare facilities are controlled by religious organizations. Fortunately, for persons with disabilities, if it is a healthcare facility, it is undoubtedly subject to §504 of the Rehabilitation Act, the law the ADA is based upon, as a healthcare facility likely takes federal funds. That said, the Rehabilitation Act and the ADA are not always exactly the same. Also, if a healthcare facility is not involved and it is a religious controlled entity, you do want to be cognizant that this exemption might apply to such an entity.
  7. Since the private club exemption relates back to the civil rights act, this is also an excellent case for figuring out a private club in the context of the Civil Rights Act in a case not involving the ADA.

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