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OPINIONS BELOW

The Memorandum and Order of the United States District Court for the Eastern

District of Kentucky is unpublished. A copy of the Memorandum and Order is attached as

Appendix A. The opinion of the United States Court of Appeals for the Sixth Circuit is

unpublished. A copy of the opinion is attached as Appendix B.

STATUTE INVOLVED

This case involves the interpretation of the private club exemption, 42 U.S.C.A.

§ 12187, of Title II of the Americans with Disabilities Act, 42 U.S.C.A. § 12182(a). A copy

of the provision has been attached as Appendix C.

STATEMENT OF THE CASE

A. Statement of the Facts

The Respondent, Bluegrass Country Club (“BCC”), is a golf course and country club

located at 71 Whirlaway Drive, Cold Spring, Kentucky. See R. at 1. The Petitioner, Julia

Hammerschmidt (“Ms. Hammerschmidt”), became a “junior executive member” of BCC

upon marrying her husband, “equity member” Rowan Hammerschmidt, in 2003. Id. Ms.

Hammerschmidt’s issues ensued in 2012, when she developed degenerative arthritis in her

hip. Id. The condition did not impact Ms. Hammerschmidt’s golfing prowess, but it did

render her unable to play eighteen holes without the aid of a golf cart. Id. Due to the

restrictions on cart usage throughout the week, restrictions on cart usage in club

tournaments, and restrictions on cart usage at the Kentucky Classic Golf tournament, Ms.

Hammerschmidt was unable to golf as frequently and competitively as she did prior to her

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degenerative arthritis. Id at 1-2. Most specifically, her inability to walk eighteen holes of

golf rendered her unable to participate in the members-only tournament. Id.

BCC takes pride in its membership practices and selectivity. Id. at 2. The Club

bragged that it denied membership to an owner of a prestigious Kentucky newspaper

because he was Jewish and further noted that it would undoubtedly deny membership to

President Obama if he were to apply. Id. Candidates for BCC membership must be

sponsored by two members, undergo credit and criminal background checks, and achieve

the vote of two thirds of BCC equity members in order to be granted membership. Id.

Rowan Hammerschmidt is an “equity member” of BCC, while his wife, the

Petitioner, is a “junior executive member.” Id. at 1. Equity members have full privileges

and a vote at all Club meetings. Id. at 2. These members have an ownership of the club

and are entitled to unlimited golf, practice facilities, and all club activities (“Members Only

Grill,” etc.). Id. There is a $12,500 buy-in as well as monthly dues of $300 associated with

equity membership. Id. Junior executive members are either the spouse or an under

twenty-three year old child of an equity member. Id. These members have limited tee

times, pay $100 of dues each month, and are not permitted in the “Members Only Grill.”

Id.

BCC is governed by a fourteen-member Board of Trustees. Id. at 3. All of these

board members are male equity members of BCC. Id. The property houses an eighteen-

hole golf course, a swimming pool, four tennis courts, and a dining facility for members and

their guests. Id. The property also has a separate driving range, nine-hole course, and pro

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shop that are open to the public upon payment of a fee. Id. The driving range and nine-

hole course are located on a separate twenty acre tract of land; this tract runs adjacent to

the 1000 acres upon which BCC sits. Id. The twenty acres is recorded separate from the

1000 acres. The club holds events for nonmembers and members alike on the twenty acre

tract, but nonmembers must be sponsored by a member in order to hold an event. Id. at 4.

Ms. Hammerschmidt, as stated above, was a “junior executive member” of BCC. Id.

at 1. An excellent golfer, she had won BCC’s intra-club women’s championship in 2008,

2009, and 2010. Id. Following her development of degenerative arthritis and her inability

to play eighteen holes without a cart, rendering her disqualified from tournament play, Ms.

Hammerschmidt filed suit against BCC based upon gender discrimination and disability

discrimination. Id. at 4.

B. Course Proceedings and Disposition in the Courts Below

Following the onset of the degenerative arthritis in her hip and the subsequent

difficulties in her golf experience at BCC (specifically regarding her inability to participate

in tournaments), Petitioner filed suit against BCC in the United States District Court for

the Eastern District of Kentucky. Id. Her two-count complaint alleged: (1) gender

discrimination under the public accommodation provision of Title II, 42 U.S.C.A. § 2000(a);

and (2) disability discrimination under the Americans with Disabilities Act, 42 U.S.C.A. §

12182(a). Id.

Defendant moved to dismiss both claims. Id. at 1. Defendant’s motion was granted

with regard to both counts. Id. at 4. The court dismissed the gender discrimination count

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based on its lack of inclusion in the public accommodation legislation. Id. Though some of

Defendant’s policies disparately impact women, gender is not a protected class under the

public accommodation provisions of Title II, 42 U.S.C.A. 2000(a), and Plaintiff stated no

other cause of action applicable to gender discrimination. Id. The court dismissed count

two because, regardless of any disability discrimination, the Defendant is a private club

and exempt from the Americans with Disabilities Act. § 12182 (a); See R. at 4.

Plaintiff appealed the district court’s dismissal of her disability discrimination

claim. Id. at 5. On appeal, the United States Court of Appeals for the Sixth Circuit was

charged with the issue of whether Bluegrass Country Club is a public accommodation and

subject to the ADA. Id. Upon review, the court found that there was no error in the district

court’s decision. Id. Accordingly, the court of appeals affirmed the district court’s judgment

and upheld the dismissal of the disability discrimination claim. Id.

This Court granted certiorari to decide a single issue: whether Bluegrass Country

Club is a private club and therefore exempt under the Americans with Disabilities Act. Id.

at 6. Because the court of appeals correctly determined that BCC is a private club and

exempt from the Americans with Disabilities Act, this Court should affirm the Sixth

Circuit’s judgment.

C. Standard of Review

This Court has been charged with reviewing a single issue: whether Bluegrass

Country Club is a private club and therefore exempt under the Americans with Disabilities

Act. Id. The burden of proving the private club exemption is on the Respondent. Since the

district court judge decided this question as a matter of law on a motion to dismiss , this

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Court must apply the de novo standard of review. See Berkovitz v. United States, 486 U.S.

531, 540 (1988) (“Because the decision we review adjudicated a motion to dismiss, we accept

all of the factual allegations in petitioner’s complaint as true and ask whether, in these

circumstances, dismissal of the complaint was appropriate.”). Though this Court need not

concur with lower courts, it should still affirm the Sixth Circuit’s judgment because

Petitioner failed to state a claim upon which relief could be granted: Bluegrass Country

Club is a private club, not a public accommodation, and therefore is exempt from the

restrictions and requirements of the Americans with Disabilities Act.

SUMMARY OF THE ARGUMENT

The United States Court of Appeals for the Sixth Circuit correctly affirmed the

district court’s dismissal of Ms. Hammerschmidt’s disability claim. The Sixth Circuit

correctly concluded that Bluegrass Country club is a private club, not open to the public,

and is exempt from Title III of the ADA’s coverage. Accordingly, this Court should affirm

the Sixth Circuit’s judgment.

Title III provides for coverage of all public accommodations, but does not apply to

private clubs. This means that the ADA private club exemption excludes private clubs that

were not subject to Title II of the Civil Rights Act of 1964. Therefore, in reaching the

conclusion that BCC is a private club and exempt from the ADA, the analysis of its

exemption must come from Title II case law precedent and a look into the relevant factors

presented, as compared to the facts of Ms. Hammerschmidt’s claim against Bluegrass

Country Club.

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Case law has found a number of factors that, when balanced and applied, indicate

whether a club qualifies for private club status. The most critical of these factors is the

genuine selectivity of a club. This factor is not only the most critical, but it is the most

prevalent in BCC’s privacy analysis. Bluegrass Country Club has a specific, deliberate

manner of screening its applicants and consistently follows such procedures, indicating that

BCC is a private club.

Several other factors that are typical of private clubs relate to the character and

structure of the organization. The high level of membership control, the history and

purpose of the club, the formalities instituted, the not for profit classification, and the lack

of advertising for new members are all indications of whether a club is private or public .

These additional factors further show that Bluegrass Country Club is a private club.

A final factor, closely related to the critical genuine selectivity, is the appropriate

nonmember use policies and the requisite separation and distinction needed for a mixed use

facility. The fact that BCC follows a limited policy regarding nonmembers, only allowing

use to members and bona fide guests (after being sponsored, etc.), evidences that it is not

open to the public but is a private club. Additionally, the separate twenty acre tract open to

the public allows a mixed use facility in which the thousand acre Bluegrass Country Club

tract is private and not subject to the ADA, while the twenty acre tract is a public

accommodation and subject to the ADA. The two are separately recorded and physically

distinguished, indicating that private club status is preserved. BCC’s operation of a

separate facility open to the public does not kill its private club status, but further

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enunciates the club’s (1000 acres) purpose as opposed to the purpose of the public portion

(20 acres).

The Sixth Circuit correctly affirmed the dismissal of Ms. Hammerschmidt’s

disability discrimination claim by concluding that Bluegrass Country Club is a private club

exempt from coverage under Title III of the Americans with Disabilities Act. Accordingly,

this Court should affirm the Sixth Circuit’s judgment.

ARGUMENT

I. BLUEGRASS COUNTRY CLUB IS A PRIVATE CLUB AND EXEMPT FROM

THE REQUIREMENTS OF THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act (“ADA”) prohibits discrimination “on the basis

of disability in the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations of any place of public accommodation by any person who

owns, leases (or leases to), or operates a place of public accommodation.” § 12182 (a). This

provides that a person will not be discriminated against based on disability by being

completely denied participation, by being allowed participation with unequal benefit, or by

enjoying a separate/different benefit. § 12182 (b)(1). Public accommodations include a

“gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”

§ 12181(7)(L). However, just because a facility falls within one of these categories does not

mean it cannot be exempt from the ADA as a private club. Jankey v. Twentieth Century

Fox Film Corp., 212 F.3d 1159, 1161 (9th Cir. 2000). The provisions of 42 U.S.C.A. § 12182

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do not apply to private clubs or other organizations “exempted from coverage under Title II

of the Civil Rights Act of 1964.” § 12187.

Looking at the provisions of the ADA, the determination of whether the club is a

public accommodation or a private club will either render BCC exempt from the Americans

with Disabilities Act or subject to the scrutiny of the Act. The test to determine whether a

club qualifies for private club status, however, is not clear cut; the Civil Rights Act provides

little assistance on the matter and merely sets forth a factual test, without actually

defining “private club.” Wright v. Cork Club, 315 F. Supp. 1143, 1150 (S.D. Tx. 1970).

Case law provides many factors for private club analysis, but none are dispositive and each

must be looked at on a case by case basis. Id. The differences among organizations call for

this “fact-based inquiry” into the circumstances of each case. Nesmith v. Young Men’s

Christian Ass’n. of Raleigh, N.C., 397 F.2d 96, 98 (4th Cir. 1968). Put simply, the definition

of “private club” is elusive and largely dependent on the facts of the case relative to many

factors derived from precedent.

There are a number of relevant factors that, when analyzed alongside the facts, can

“tip the balance for or against private club status”: genuine selectivity of the group in

admission of members; membership control over the operations of the establishment;

history of the organization; purpose of the club’s existence; the formalities observed by the

club; whether the club is profit or not for profit; whether the club advertises for members;

and use of the facilities by nonmembers. U.S. v. Lansdowne Swim Club, 713 F. Supp. 785,

796-797 (E.D. Pen. 1989).

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Analyzing the facts associated with Ms. Hammerschmidt’s claim, in conjunction

with these factors, the Sixth Circuit correctly affirmed the district court’s dismissal of Ms.

Hammerschmidt’s disability discrimination claim. BCC is a private club exempt from the

Americans with Disabilities Act, putting her claim outside of the ADA’s protection.

Accordingly, this Court should affirm the Sixth Circuit’s judgment.

A. The Club’s Membership Practices Are Both Highly Selective and Subject to

Member Discretion

The Americans with Disabilities Act approaches the issue of discrimination based on

disability in settings of public accommodation. § 12182 (a). Conversely, an organization

that is deemed a “private club” is exempt from the restrictions of the ADA. § 12187. In

distinguishing a private club from a public accommodation, the most important factor is

“genuine selectivity of the membership process.” Lansdowne, 797. Selectivity has been

viewed in many lights in the past. It has been said to regard the “nexus between the

organization’s purpose and its membership requirements.” Welsh v. Boy Scouts of

America, 993 F.2d 1267, 1277 (7th Cir. 1993). It has been seen as a screening process aimed

at protecting freedom of association values. Martin v. PGA Tour, Inc., 984 F. Supp. 1320,

1325 (D. Or. 1998). As with all the aforementioned factors to be considered, selectivity has

no concrete formula but must be determined on a case by case basis.

Many pieces go into the selectivity equation: sufficiency of the membership fees;

numerical cap on club membership; membership control over the selection of new members;

formality of the club’s admission procedures; admission standards; etc. Lansdowne, 797.

Looking at each of these relative to the facts of the case, Bluegrass Country Club satisfies

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the analysis and consequently satisfies the selectivity requirement for private club status

and exemption from the Americans with Disabilities Act.

The presence of dues, as well as initiation fees, is a general characteristic that many

private clubs possess. U.S. v. Jordan, 302 F. Supp. 370, 376 (E.D. La. 1969). Some courts

have gone so far as to deem a club private “due in substantial part to the substantial

membership fee” and dues. Reimer v. Kuki’O Golf and Beach Club, Inc., 2013 WL 1501522

(D. Haw. 2013). The presence and substantiality of the dues are both important to the

question of selectivity. Looking at the membership fees as a means of establishing

selectivity, it is clear that BCC does not concede membership without a high level of

financial commitment.

In order to join Bluegrass Country Club as a “junior executive member,” the member

must be the spouse or child (under age 23) of an “equity member.” See R. at 2. Junior

executive members pay $100 in monthly dues but enjoy only limited tee times; additionally,

they are not permitted in the “Members Only Grill.” Id. This monthly fee for junior

executives, however, is only available with the prerequisite of an equity membership. Id.

An equity member pays monthly dues of $300, supplemented with an initial buy-in of

$12,500. Id. These members enjoy full privileges of BCC. Id. Looking at this practically, a

family of three who seeks membership at the club would pay the $12,500 buy-in for equity

membership, $300 for monthly equity dues, and $200 monthly dues for each junior

executive member; this totals to $12,500 from the buy-in and $6000 each year in dues.

That amount only includes one equity membership providing full privileges and enjoyment

of the club. If the entire family were to seek equity membership, there would be a

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composite $37,500 buy-in and $10,800 of monthly dues each year. These expectations

certainly satisfy the presence and substantiality of dues sought to indicate the heightened

standards for selectivity present in private clubs.

The placement of a cap on membership numbers can be seen as a proponent for

finding selectivity, but it is not dispositive on the issue. Welsh, 1277. Large membership

numbers do not, standing alone, deprive an organization of private club status so long as its

membership requirements were parallel to the purpose of the group. Martin, 1324. Neither

the popularity of an organization nor the small number of rejections indicates that a club

does not possess the requisite membership requirements. Welsh, 1277. The lack of a

maximum number of members accepted does not, therefore, indicate that BCC is a public

accommodation.

A number of other characteristics of the membership process, which will be further

analyzed following this, can compensate for the lack of a members cap. The purpose of a

members cap in determining selectivity is to show that not everyone who can afford the

financial burden of membership will be accepted. With the requirements of sponsorship by

two current BCC members, credit and criminal background checks, and survival of a

membership vote in place to achieve membership, the necessity of a membership cap can be

minimized in the selectivity equation. Additionally, the character of the club sets forth a

rich history that applicants can see and feel. It is likely that only those who know they

meet the standards and will “fit in” with the Bluegrass Country Club culture seek

acceptance in the club.

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Membership control over the selection of new members indicates a high level of

selectivity in that the members of the club are the ultimate last voice in determining

acceptances. A more democratic internal governance of the club, especially regarding new

member processes, brings a higher indication of a private club. Cornelius v. Benevolent

Protective Order of the Elks, 382 F. Supp. 1182, 1203 (D. Con. 1974). As individuals apply

for membership with BCC, they undergo a series of steps which ultimately leads to a vote

from two thirds of the current members (equity members – not junior executive members).

See R. at 2.

Related to the membership control, the formality of the club’s admission procedure

and the admission standards indicate that it is not an arbitrary decision-making process; it

is a methodical, standardized, unchanging manner by which the club accepts or rejects

those seeking membership. Jordan, 376. A case with a similar predicament, trying to

establish its private club status, had nearly identical procedures as BCC; the organization

required applicants to be recommended by two members, be male, be of good character,

believe in a Supreme Being, fill out and sign an application, be referred to an investigating

committee, and following investigation be put to a vote. U.S. v. The Trustees of the

Fraternal Order of Eagles. 472 F. Supp. 1174, 1176 (E.D.Wi. 1979). Despite the fact that

BCC does not require that members be male and believe in a Supreme Being, BCC parallels

this case in the respect that they have specific character expectations for potential

members. The downfall of the Eagles organization’s argument for exemption from public

accommodation restrictions, however, was their failure to comport with their own

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procedures. Id. at 1176. Converse to the Eagles case, there is no evidence or indication

that BCC has strayed from its member selection process at any time.

BCC member-hopefuls must be sponsored by two current members in order to even

be considered. See R. at 2. Then they must pass credit and criminal background checks to

ensure that they are financially capable of making their payments, fiscally responsible, and

are law-abiding citizens. Id. Only after they have successfully completed these steps can

their membership potential be tested by a vote of two thirds of the equity members of BCC.

Id. More testament to the formality of the admission procedure is the creation of the two

categories of membership discussed above. The By-laws of BCC established the distinction

between equity members and junior executive members; this further evidences the selective

and elite nature of BCC’s membership process. Even once members have been accepted,

they are not all put on a level playing field with equal access, privileges, and priority at

BCC.

In addition to the pieces of the selectivity equation, BCC makes it publicly known

that they, as a club, are proud of their selective membership practices. They do not shy

away from their arguably discriminatory membership practices. BCC’s purpose behind its

new member application processing formula is to screen out those individuals who do not fit

their club culture for any reason, in an effort to protect their freedom of association.

Martin, 1325. Bluegrass Country Club is the oldest golf course and country club in the

Midwest. See R. at 1. It hosts the televised, nationally prestigious Kentucky Classic Golf

tournament every five years via a rotation schedule among Kentucky’s five country clubs.

Id. at 2. It hosts two “club” golf tournaments each year, both of which culminate in highly

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sought-after prizes for the winners. Id. at 3. BCC exercises such extreme selectivity in

order to maintain this level of prestige, class, and elitism and therefore must be deemed to

be a private club.

B. The Nature of the Organization is Such That Its Operations, Intent, and

Structure Align With that of a Private Club

The general character of BCC, via a number of factors, strongly indicates that it is a

private club, not a public accommodation. First, the members of BCC have a high level of

control in the operations of the club. Lansdowne, 796; Cornelius, 1203. Next, BCC’s

history and purpose suggest that the club was created to serve its members, not the public

at large; the club’s formalities and procedures are consistent with that of a legitimate

private club, not just a public entity who made changes to shirk the requirements of civil

rights legislation; and it is registered as a non-profit corporation under Kentucky law.

Lansdowne, 797; Trustees, 1175; Wright, 1153. Lastly, BCC does not actively advertise to

find new members; its publicity, if any is present, is geared toward members for their

information and guidance. Wright, 1153.

1. Members have a high level of control and participation in the operations

of BCC

A more democratic degree of membership control over internal governance indicates

that the organization is private. Cornelius, 1203. This is especially relevant in the

selection of new members; as highlighted above, the more democratic the process is, the

better it looks for exemption purposes. Id. BCC operates with the requisite level of

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member control and participation necessary to factor into the private club equation.

Lansdowne, 796.

Member recommendation or sponsorship is needed for many activities at BCC.

Nonmember events such as weddings, corporate events, and other social outings are held

on the twenty acre tract, but the catering of these events must be sponsored by a member.

See R. at 4. Members must sponsor individuals before they can begin the process of

admission for membership. Id. at 2. Once the individuals have been sponsored by two

members, they eventually are voted upon by the equity members at BCC before they can

ultimately become members of BCC. Id. Potentially most critical in the member control,

though, is the Board of Trustees, which is comprised of fourteen equity members. Id. at 3.

By way of an annual Board of Trustees meeting and a bi-annual membership meeting, this

governing group of equity members makes decisions about the club and its operations in

general and also oversees the process of awarding membership and voting on new

members. Id. at 3. The presence of member control ensures that BCC will keep close to its

membership standards and maintain the values it seeks among its members. BCC’s

membership control indicates that it is indeed a private club.

2. BCC’s past and present character indicates that the club is legitimately

private

One of the obvious purposes of the Civil Rights Act is to protect , exclusively, the

legitimately private clubs that have genuine criteria for membership. Nesmith, 102. The

history of the organization must be consistent with the intent to serve the “desired

membership population, not to be a subterfuge for civil rights legislation.” Lansdowne,

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802. Courts have provided that the elusive determination of whether a club is private is a

legal standard by which clubs must conform to the legislative purpose that was present

upon inception. Wright, 1150. This is evidenced largely by the “not for profit” classification

of BCC; the function of the club is solely for the benefit and pleasure of the members. Id. at

1153. As the oldest golf course and country club in the Midwest, a not for profit

classification shows that the club has long been devoted to its members and has not

whimsically altered its course to comport to factors for private club exemption from the

Americans with Disabilities Act (or the rest of the Civil Rights Act, for that matter).

BCC’s history, purpose, not for profit classification, and formalities indicate that it

has been and was intended to be a private club. It is the oldest golf course and country club

in the entire Midwest. It is classified as a non-profit organization, showing that its sole

purpose is not to generate profit, but to serve its constituency and provide services and

opportunities for members. Further showing the intent and sincerity of the BCC’s privacy

are the formalities that the club observes. Lansdowne, 797. BCC has numerous

formalities/procedures that indicate its private status: a fourteen-member Board of

Trustees; annual Board of Trustees meetings; bi-annual membership meetings; new

member processes; By-laws creating two categories of membership; etc. See R. at 2-3.

These deliberately crafted and religiously followed procedures show that Bluegrass Country

Club is operated according to tradition and parallel to the intent of its founders.

3. BCC does not actively advertise for members

“Organizations which advertise and solicit new members do not fall within the

private club exemption.” Lansdowne, 797. “Advertise” can mean a number of things: “to

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make the public aware of something that is being sold; to make a public announcement

about something that is wanted or available; or to cause people to notice something.”

Webster’s Third New International Dictionary (1993). Under any and all of these

meanings, BCC’s actions do not constitute advertising or soliciting new members. Even if

BCC’s efforts did satisfy one of the definitions of advertise, though, the club’s actions were

relative to the twenty acre tract which is separate from the private thousand acre tract.

The facts present two instances which must be distinguished from advertising. First,

BCC includes information about catering, golf lessons, the driving range, the nine-hole

course, and the pro shop on their club website. See R. at 4. This can hardly be deemed an

effort to solicit new members. The club website, likely used primarily by club members,

contains the above inclusions for the purpose of informing about these services and

features; it is not for the purpose of making the public aware of membership opportunities,

publicly announcing that members are wanted/memberships are available, or making

people notice the potential for membership. At most, the purpose of these provisions on the

website is to inform and educate club members, who are not members of the “public” (as

noted in the definition of “advertise”).

Second, BCC views reaching out to nonmembers by catering their events on the

twenty acre tract as a way to possibly increase membership. Id. It would be incorrect to

designate this as BCC making the public aware of something being sold, something

available, or something to notice due to the fact that the catering events are held on the

twenty acre tract. The portion of BCC that is a private club, the thousand acre tract, is in

no way being promoted via these member-sponsored events for nonmembers. The twenty

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acre tract is separate from the thousand acre BCC property, which is not being advertised

at all through these events. Holding nonmember events on the public portion of the BCC

does not constitute advertising for new members for the private portion, since the twenty

acre tract is not where the members actually enjoy the Bluegrass Country Club’s amenities.

Even if the website and nonmember catering would constitute advertising, though,

both are in relation to the twenty acre tract running adjacent to the actual thousand acre

BCC. As discussed next, the thousand acre tract is the private club and exempt from the

Americans with Disabilities Act, while the twenty acre tract is distinctly separate and could

be considered a public accommodation without killing BCC’s private club status. BCC’s

actions do not constitute advertising for new members and therefore its private status is

unharmed by the actions.

C. Nonmember Use and Mixed Use of the BCC-Owned Tracts Does Not Preclude Them From Private Club Status

Within bounds, nonmember use of a club does not kill private club status. Kelsey v.

University Club of Orlando, 845 F. Supp. 1526, 1529 (M.D. Fla. 1994). (A private club had

a limited guest policy, but there was evidence that this policy was not followed on various

instances; this rendered the club a public accommodation under the ADA). In many cases

the courts have found a club to be private when the nonmember use was limited, mixed use

was present, and there were visible and ascertainable distinctions between the private

portion and the public portion.

In one case involving a suit based on inaccessibility to disabled persons of a film

production studio, the court provided that “‘mixed use’ facilities can also exist, consisting of

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an exempt facility of which a portion is a public accommodation. That portion, and only

that portion, will therefore be subject to the ADA.” Jankey v. Twentieth Century Fox Film

Corp., 14 F. Supp. 2d 1174, 1179 (C.D. Cal. 1998). This principle was illustrated in

another case involving a disability claim based in part on the exclusion from the store’s

employee-only restroom. Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1048 (9th Cir. 2008). The

court held that even though the retail portion of the store was a public accommodation, the

restroom was not. Id. The Doran court reiterated that in cases of “mixed-use” facilities with

only part of the facility being public, the portion that is closed to the public is not to be

considered a public accommodation and therefore is exempt from the ADA. Id. To the

extent that such a mixed use facility is closed to the public at large , it is not subject to the

public accommodations requirements of the Americans with Disabilities Act. Olinger v.

U.S. Golf Ass’n, 2005 F.3d 1001, 1004 (7th Cir. 2000), vacated on other grounds, 532 U.S.

1064 (2001).

Other cases involving the limited nature of nonmember use have held that

occasional or inconsistent use does not make the club a public accommodation. One such

case had very similar facts to the present case and held that a private club with a ‘limited

guest policy’ is still not to be considered a public accommodation so long as guests are not

being permitted “unfettered use of facilities.” Kelsey, 1529. Another case concluded that a

private club is not converted to a place of public accommodation under the ADA by only

occasional use of the facilities by nonmembers, provided that the nonmembers have been

invited by club management or members. Reimer, 3. Opposite to these findings, though,

one country club was found to be a public accommodation because their facilities were too

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accessible to nonmembers. Thornton v. Shaker Ridge Country Club, Inc., No. 07-CV-761

(DRH), at 3 (N.D. NY. 2007). Even with high levels of selectivity, including two signatures

of current members, a committee meeting, a meeting with elected member officers,

approval, and fees, the club was deemed public as a result of their lax nonmember habits.

Id. These cases indicate that nonmember use is not completely barred, but there is a very

specific distinction to be noted when allowing nonmember use. A truly private club limits

use to members and bona fide guests; regular indiscriminate use of the club defeats the

purpose of a private club. Wright, 1151-1152.

Circumstances that present two distinctly separate portions owned by the club can

still maintain private club status as well. One court dealt with this issue where there were

different buildings involved and held that there can still be an exemption so long as there is

a distinction between the uses of the buildings. Nesmith, 99. Alternately, one case held

that a PGA tournament attempting to “compartmentalize” the in the ropes and behind the

ropes areas was not sufficient to constitute mixed use. Martin v. PGA Tour, Inc., 204 F.3d

994 (9th Cir. 2000). Zoning off areas to be private or public is clearly different than two

distinctly separate facilities within an organization’s facilities. BCC’s thousand acre tract is

only open to members of the club, while the twenty acre tract running adjacent to the

thousand acre tract is open to public use upon payment of a fee. The clear separation

between the thousand acre BCC tract and the publicly used twenty acre tract illustrates

the physical and figurative distance between the tracts; one is a private club exempt from

the ADA, while the other is a public accommodation subject to the ADA .

21

CONCLUSION

The Sixth Circuit correctly concluded that Ms. Hammerschmidt’s disability

discrimination claim should be dismissed. BCC satisfies scrutiny against the factors that

precedent has provided for determining private club status and ADA exemption.

Accordingly, this Court should affirm the Sixth Circuit’s judgment because Bluegrass

Country Club is a private club and is consequently exempt from the requirements of the

Americans with Disabilities Act.