PRIVATE CLUBS UNDER TITLE III OF THE ADA

 

A private club or establishment is exempt from coverage under Title III of the Americans with Disabilities Act (ADA). The exemptions are narrowly construed and the burden of proof rests on the party claiming the exemption. See Martin v. P.G.A. Tour, Inc., 984 F.Supp. 1320, 1323 (D.Or. 1998), affirmed P.G.A. Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001).

 

The U.S. Department of Justice (DOJ) interpreted its ADA Title III regulations in Appendix B of its 28 C.F.R. Part 36 regulations, stating:

 

 “The term ‘private club’ is defined in accordance with section 307 of the ADA as a private club or establishment exempted from coverage under title II of the Civil Rights Act of 1964.  Title II of the 1964 Act exempts any ‘private club or establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of a place of public accommodation as defined in title II.’” See 28 C.F.R. Part 36, App. B, § 35.36.104, page 688 (7-1-06 Edition).

 

“In determining whether a private entity qualifies as a private club under title II, courts have considered such factors as the degree of member control of club operations, the selectivity of the membership selection process, whether substantial membership fees are charged, whether the entity is operated on a nonprofit basis, the extent to which the facilities are open to the public, the degree of public funding. …” Id. at 688-89.

 

The DOJ cited a number of court decisions upon which its interpretation of private club is based and one of those decisions is the Supreme Court decision in Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697 (1969).

 

In Daniel v. Paul, the Supreme Court held that a public accommodation was not a private club if the establishment served or offered to serve interstate travelers, or if a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce. Id. at 303.

 

Therefore, a majority of the “private clubs” that are exempted from state and local clean indoor air acts or ordinances do not qualify as private clubs under Title III of the ADA.

 

For example, the American Airlines Admiral’s Club at the DFW Airport is exempted from the City of Grapevine, Texas, smoking ordinance as a “private airline club.”  The DFW Admiral’s Club serves and offers to serve interstate travelers, its members have no control over club operations and American Airlines solicits members and the Club is operated solely as a business to generate profits for American Airlines.

 

Moreover, the U.S. Department of Transportation (DOT) has specifically held that the airline clubs are not “private clubs” that are exempted from the ADA. In a Notice of Final Rulemaking, the DOT stated:

 

 “We point out that not only the general terminal areas but also some areas open to part of the traveling public (e.g. the airline ‘clubs’ providing special accommodations in terminals to frequent fliers or persons who pay a fee to the airlines) are subject to the accessibility requirements of this rule. These are spaces, that in Title III terms, would be places of public accommodation, and it is unlikely that most would fall within the limited ‘private club’ exemption to the ADA, as defined in the Department of Justice Title III rules. One implication of this is that, if telephone service is provided to members within the ‘club’ space, then TDD requirements would apply to the ‘club.’ It would not be consistent with the rules for the carrier to refer the passenger to a TDD phone in the general passenger areas of the terminal, …”See Federal Register / Vol. 1, No. 213 / Friday, November 1, 1996, page 56409, 56417.

 

The statutes and regulations cited above can be accessed at http://www.law.cornell.edu

 

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