Private Status Remains Alive and Well

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Private Status Remains Alive and Well

Private Status Remains Alive and Well1


On June 1, 2017, Judge F. Dennis Saylor IV of the U.S. District Court (Mass.) entered judgment for the defendant, Woodland Golf Club, in a discrimination action brought under the Americans with Disabilities Act, (“ADA”).2 The plaintiff, Robert Lobel, is a retired Boston television sportscaster. He is an avid golfer. Because of his medical condition, Lobel can only golf with the assistance of a special single-rider adaptive golf cart, called a SoloRider. He was invited to play golf at Woodland Golf Club, a country club in Auburndale, Massachusetts, by a member of that club. Woodland, however, refused to permit him to use the SoloRider on its putting greens or in bunkers.

Lobel contended Woodland is a place of “public accommodation” and was therefore required under the ADA to provide him with a reasonable accommodation in order to permit him to access its golf course. Woodland contends that it is a “private club” and therefore not subject to the requirements of the ADA.

We were intrigued by Judge Saylor’s admirable and extensive review of the case law pertaining to the exemption of distinctly private clubs from application of public accommodation laws contained in not only the ADA but in the Civil Rights Act.

The Court held the undisputed evidence shows that Woodland has all the basic characteristics of a private club, including genuine selectivity of membership and exclusion of non-members from regular or indiscriminate use of its facilities.  The Club is therefore not subject to the requirements of the ADA and Lobel’s motion for summary judgment was denied and Woodland’s motion for summary judgment was granted.

Cited is the familiar Casey Martin case. A facility is not a public accommodation subject to the ADA if it qualifies as a private club.3 “[A] private club or establishment is exempt from coverage under Title III of the ADA”. The Court looked to Lansdowne Swim Club,4 a frequently cited precedent for the eight principal indicia of private status.

The eight Lansdowne factors are (1) “[t]he genuine selectivity of the group in the admission of its members”; (2) “[t]he membership’s control over the operations of the establishment”; (3) “[t]he history of the organization”; (4) “[t]he use of the facilities by nonmembers”; (5) [t]he purpose of the club’s existence”; (6) [w]hether the club advertises for members”; (7) [w]hether the club is profit or nonprofit”; and (8) “[t]he formalities observed by the club, e.g., bylaws, meetings, membership cards.” 5

In dispute were items 1, 2, 6 and 8. Of the disputed items item 6 caught our attention as it is likely the most suspect among clubs which promote the use of their facilities via web sites. This tactic may ripen into advertising for members. As succinctly stated by Judge Saylor:

Establishments that “advertise and solicit new members do not fall within the [ADA’s] private club exemption.”6 In particular, any advertising that is “designed to increase patronage of the clubs’ facilities” cuts against private-club status.7  Therefore, when considering this factor, courts examine “whether and, if so, to what extent and in what manner [an establishment] publicly advertises to solicit members or to promote the use of its facilities or services by the general public.”8

Lobel contended Woodland’s website, which permits members of the public to request membership information, as well as its use of a public Facebook page, demonstrate that it “advertise[s] and market[s] the club and promote[s] its membership to the public on a continuing basis. The Court disagreed, however, reciting “. . . providing a ‘membership tab’ that enables a proactive prospective member to request additional information regarding the club’s membership procedures is not the type of ‘extensive effort to draw residents of the [local community] into [the club’s] membership’ that is at the heart of this inquiry.9 In support of this position, Judge Saylor cites Wright v. Salisbury Club, Ltd.,10 a 1980 case with which most of us in the private club legal sector have long been familiar.

We went on Woodland Country Club’s website11 and clicked on the “Membership” tab. It disclosed the following: “Woodland Golf Club is a private club with limited membership.  Candidates must be proposed by 2 club members, and endorsed by a third member.  Applicants are also required to complete an interview process. For further information about Woodland, please contact the General Manager.” The tab also discloses the name, phone number and email address of the General Manager.

Lobel contended social media has “transform[ed] advertising and marketing from black and white print” advertisements to “general exposure on the internet”. Thus, he is claiming this activity amounts to advertising memberships to the public. The Court demurred stating “The medium used does not change the basic requirement; for advertising to compromise private-club status, there must be an active effort to solicit new members from the general public.”

Now, we wonder whether inviting prospective applicants to inquire of the general manager is tantamount to soliciting memberships on the Web. What happens when a person calls or emails the general manager? Is the person invited to come by the club and be introduced to prospective member sponsors? If this is the procedure followed, isn’t it just one step away from active solicitation? Or is the “one step away” sufficient to prevent the club from deemed to be advertising for members?

Another private club with which we are familiar contains a membership tab on its website. It recites: “For Membership inquiries, please contact: [followed by the name, phone number and email address of the membership director]. Is this exposure any different from Woodland, only slightly more subtle?

Advertising for membership or use of a private club’s facilities may not by itself be likely to eliminate a club’s exemption from ADA section III or CRA section II. It is only one of the eight factors recited in Landsdowne and repeated in Lobel that are considered by the courts. There are others.

The Lobel Court also relied on Pappion v. R–Ranch Property Owners Association, 12 a fairly recent federal court decision in California.  Both Pappion and Lobel rely substantially on earlier cases, notably Casey Martin v. PGA Tour and Wright v. Cork Club, a 1970 federal district court decision.13

It is profitable to review the seminal case, Wright v. Cork Club. The plaintiff, Mrs. Wright, was denied membership in the Cork Club and the use of its facilities because she is a Negro. She brought the action against defendants, Cork Club, et al., seeking injunctive relief and claiming infringement of her rights under the Thirteenth and Fourteenth Amendments to the United States Constitution, the Commerce Clause (Art. I, Sec. 8, Cl. 3), Title II of the Civil Rights Act of 1964 (42 U.S.C. § 2000a et seq.), and 42 U.S.C. §§ 1981, 1982, and 1983. A member of plaintiff’s sorority had inquired of the club whether she could have a sorority luncheon at the club and was assured by the club’s auditor that she could do so as the guest of the club’s president.

The auditor inquired whether any member of the sorority would like to become a member of the Club and volunteered to send the sorority inquirer application forms for that purpose. A letter was mailed to confirming the arrangements for the luncheon enclosing several membership applications. Plaintiff filled out one of these applications, sent a check for $18.00, payable to the Cork Club, to cover one month’s dues for a Class “A” member, and duly received her membership card. After using her membership one time, the plaintiff was thereafter informed she was no longer entitled to be a member.

                  Wright v. Cork Club reiterates the standing case precedent principle “In determining whether an establishment is in fact a private club, there is no single test. A number of variables must be examined in the light of the Act’s clear purpose of protecting only `the genuine privacy of private clubs * * * whose membership is genuinely selective.

Lobel’s appeal to the 1st Circuit Court of Appeals was voluntarily dismissed and the Appeals Court entered judgment accordingly on December 19, 2017.14 For now, the decision reinforces the legitimacy of a common practice of private clubs using their websites to encourage expression of interest in membership from the public without fear of losing their private status. A privacy audit by legal counsel versed in private status law is recommended for clubs concerned about protecting their private status.



1This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of a lawyer/client relationship. The author of this blog is not certified by any state agencies or boards of legal specialization. This blog may constitute attorney advertising in some jurisdictions.

2 Lobel v. Woodland Country Club, Civil Action No. 15-13803-FDS (hereafter “Lobel”)

3 Martin v. PGA Tour, Inc., 984 F. Supp. 1320, 1323 (D. Or. 1998), aff’d, 204 F.3d 994, (9th Cir. 2000), aff’d, 532 U.S. 661, (2001).

4 713 F. Supp. 785, (E.D. Pa. 1989).

5 Lobel quoting Landsdowne Swim Club at 796-97.

6 Martin, 984 F. Supp. at 1325 (D. Or. 1998), aff’d, 204 F.3d 994, (9th Cir. 2000), aff’d, 532 U.S. 661, (2001).

7 Wright v. Cork Club, 315 F. Supp. 1143, 1152 (S.D. Tex. 1970).

8 Bommarito, 2007 WL 925791, at *4.

9 Lobel at 23.

10 632 F.2d 309, 312-13 (4th Cir. 1980)


12 110 F. Supp. 3d 1017 (E.D. Cal. 2015)

13 315 F.Supp. 1143, 1152 (S.D.Tex.1970).

14 Case No. 17-1657


Copyright 2018
Fred L. Somers, Jr., P.C.
Atlanta, GA 30338