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Lobel v. Woodland Golf Club of Auburndale

United States District Court, D. Massachusetts

May 31, 2017

ROBERT LOBEL, Plaintiff,


          F. Dennis Saylor IV United States District Judge

         This is a discrimination action brought under the Americans with Disabilities Act, 42 U.S.C. § 12182. Plaintiff Robert Lobel is a retired Boston television sportscaster. He is an avid golfer. Because of his medical condition, he 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.

         The parties have cross-moved for summary judgment. The parties do not dispute that Lobel is “disabled” within the meaning of the ADA. There is a factual dispute as to whether the SoloRider actually damages greens or bunkers, but that is not the issue at this stage of the proceeding. Nor is the issue whether Woodland's actions are fair or unfair, or wise or foolish. Instead, this case presents a limited question: whether Woodland is subject to the requirements of the ADA.

         Lobel contends that Woodland is a place of “public accommodation” and is 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.

         For the reasons stated below, 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. It is therefore not subject to the requirements of the ADA, and Lobel's motion for summary judgment will be denied and Woodland's motion for summary judgment will be granted.

         I. Background

         A. Factual Background

         Unless otherwise noted, the following facts are undisputed.

         1. Robert Lobel

         Robert Lobel is 73 years old. (Pl. SMF ¶ 1; Lobel Dep. at 143). In 2000, he underwent the first of two knee replacement surgeries. (Lobel Dep. at 19). In 2005, following the second knee replacement surgery, “walking became a real concern” for him. In 2007, he was diagnosed with spinal stenosis. (Id. at 19; Pl. SMF ¶ 2). Between May 2007 and October 2008, he underwent three surgeries for spinal stenosis. (Pl. Ex. B). Following the final surgery, he fell, fracturing one of his hips; a year later fell again, fracturing the other hip. (Lobel Dep. at 21-22). Both hips were repaired using pins. (Id. at 22). Since 2009, he has “needed some form of assistive device” to walk. (Id. at 29-30).

         Notwithstanding his physical disability, Lobel plays as many as seventy rounds of golf a year. (Id. at 143). He golfs with the assistance of a SoloRider, “a specially designed handicapped accessible single rider golf cart with a pivoting and lifting seat which assists a disabled golfer.” (Id. at 36; Pl. SMF ¶¶ 6-7). Lobel estimates that he has used a SoloRider 300 to 500 times. (Lobel Dep. at 141-42).

         2. The Woodland Golf Club

         The Woodland Golf Club of Auburndale is a country club “with a clubhouse, golf course, swimming pool and tennis court, ” located in the Auburndale section of Newton, Massachusetts. (Pl. SMF ¶ 13). It was founded in 1896. Woodland describes itself online as “a modern club with a diverse membership of local and seasonal residents, many of whose families have belonged for generations.” (Pl. Ex. D).

         3. Membership and Governance of the Club

         Woodland has several classes of membership, including social membership (which does not include access to the golf course); associate membership (which is further divided into resident membership, for those who live or work within 75 miles of the club, and non-resident membership, for those who do not); senior resident membership; and honorary life membership. (Garfinkel Aff. Ex. A at 5-6). Senior resident membership and honorary life membership are by election only. (Id.). Only senior resident members and honorary life members are entitled to vote on club business, hold office, and hold proprietary interest in the club and/or its properties. (Id. at 5).

         The club holds annual membership meetings, at which club business is discussed and new officers and directors are elected. (Id. at 4). Members with voting rights are entitled to vote on issues that are brought before the membership. (Id.). Secret ballots are required for any proposal to increase dues or assessments, authorize unusual expenditures, authorize expenditures in excess of $75, 000, or elect new honorary life members. (Id.).

         Woodland is formally governed by a board of directors, consisting of four officers and nine other directors, each of whom is elected annually to the board. (Id. at 1). Only members with senior resident membership or honorary life membership may be elected to the Board. (Id.). The directors are responsible for determining and executing the policy of the club, controlling its properties and funds, and managing its general business affairs. (Id. at 2). The club also has ten standing committees, including the Finance Committee, Membership Committee, Golf Committee, Golf Cart Committee, and Greens Committee, each composed entirely of Woodland members and responsible for overseeing a specific area of the club's operations. (Id.). For example, under the club's by-laws, the Greens Committee is responsible for “the entire care and management of the golf links, ” “supervis[ing] a professional superintendent, workmen, and other employees as may be necessary, ” and “establish[ing] such rules to govern the use of the links and the care of the grounds as may be required to keep them in proper condition.” (Garfinkel Aff. Ex. B at 1).

         Woodland also has a general manager, who reports to the Board of Directors. (Garfinkel Aff. ¶ 3). For approximately thirteen years, that position has been filled by David Garfinkel. (Id. ¶ 2). Garfinkel testified that as general manager, he is involved in “operational decisions” including those that “impact the services, amenities . . . safety . . . and well-being of the membership.” (Garfinkel Dep. at 7). It appears that there are some operational decisions that he makes without first consulting the Board, and others-particularly those involving expenses or legal matters-that he makes only after consulting the Board. (Id. at 7-8). Garfinkel also responds to inquiries from outside persons or organizations regarding events at the club. (Id. at 8).

         4. Attaining Membership in the Club

         Article VIII of the Woodland by-laws outlines the formal procedures for joining the club. (Garfinkel Aff. Ex. B, at 4). An eight-page questionnaire titled “Proposal for Membership” requires information about the applicant's current employment, educational background, “civic community or social activities, ” past and present club memberships, and an explanation of why the applicant “desire[s] to become a member of Woodland.” (Tully Aff. Ex. A, at 3-4).[1] The questionnaire also requires two current Woodland members sponsoring the application (“proposers”) to each “briefly describe why the applicant would be a positive addition to our membership.” (Id. at 5). An additional section requires a third Woodland member (an “endorser”) to state why they “believe that the applicant and his/her family are strongly qualified for membership.” (Id. at 8). The applicant must also submit letters of recommendation from each proposer and complete at least one interview with a current member, which may include a round of golf. (Garfinkel Aff. ¶ 20).

         Members who interviewed an applicant then make a recommendation to the full Membership Committee, which, in turn, reports to the full Board. (Id. ¶ 22). The Board then votes to approve or deny membership on a one-year provisional basis. (Id.). According to Woodland, it occasionally does not approve applicants for membership when it learns “through its interview, member review, and investigation process, that the information provided in the application materials does not accurately reflect the applicant's suitability for membership.” (Id. ¶ 23). Those admitted on a provisional basis must pay a non-refundable $55, 000 initiation fee. (Id. ¶ 24). At the end of the provisional period, the Board “reviews the desirability and qualifications of each provisional member and may, by a majority vote, remove the provisional status or extend the provisional status for an additional year, or, by a two-thirds vote, refuse membership. (Id. ¶ 25). According to Woodland, it has, on rare occasions, refused membership following the provisional period. (Id.). Woodland does not limit or restrict membership based on an applicant's religion, race, or nationality. (Chervinsky Decl. ¶ 2).

         Woodland's by-laws limit the number of full golf memberships at Woodland to a maximum of 350. (Garfinkel Aff. ¶ 15(a)). Once inducted, a Woodland member with a family of four can expect to pay approximately $14, 000 a year for expenses including dues, assessments, food minimums, and full golf access. (Id. ¶ 31). In addition, “when Woodland anticipates a major capital expenditure . . . it will impose a special assessment against the membership to cover the additional cost.” (Id. ¶ 32).

         5.Guest Access and Non-Member Events at the Club

         The Woodland golf course is open to club members with golf access and, subject to some limitations and restrictions, their guests. (Id. ¶¶ 15(a), 38). Pursuant to the club's Golf Operations, Rules and Regulations, guests must be registered in advance, must play with the member who brought them to the club, and may not play more than two times per month. (Id. ¶ 38). In addition, guests are prohibited from playing Woodland's golf course during its peak hours of 7:00 a.m. to 9:30 a.m. on Saturdays, Sundays, and holidays. (Id.). In order to bring a guest, a Woodland member must pay a guest fee, must accompany his or her guest at all times, and is responsible for all charges incurred by the guest, with the exception of merchandise purchased from the Pro Shop. (Id. ¶ 34). The member is also responsible for ensuring that his or her guest abides by the club's rules and regulations, including its dress code. (Id. ¶ 35).

         On occasion, Woodland hosts golf outings or tournaments that are open to individuals other than members and their invited guests. According to Woodland, non-member events are only permitted if sponsored by a member. (Id. ¶ 40). During fiscal years 2014 and 2015, Woodland hosted 29 “non-member” golf events, all sponsored by Woodland members and organized for nonprofit, religious, or charitable organizations. (Id. ¶¶ 43-44). Five of the 29 events were held during Woodland's normal business hours. (Id.). Nine of those events were paid for directly by a Woodland member, and 20 events were paid for directly by a non-member organization. (Id. ¶¶ 39, 43-44).

         On at least two occasions (once in 2013 and once in 2016), Woodland has hosted golf tournaments to which members of the general public were invited to attend as spectators. (Longo Decl. Exs. I, J).

         In addition, Woodland has, on several occasions, hosted other functions “open to members of the public and not limited to Woodland members and their guests, ” such as work-related gatherings, charitable events, and weddings. (Garfinkel Aff ¶¶ 39, 48). For example, in fiscal years 2014 and 2015, the club hosted five weddings; all were for Woodland members. (Id. ¶ 48). Woodland contends that it does not host any event “unless a Club member, on his or her own initiative, asks Woodland to host the event and agrees to sponsor it.” (Id.).

         6. The Club's Website and Social Media

         Woodland has a public Facebook page and a website that includes both public content and private content available only to members. (Pl. Ex. D; Garfinkel Aff. ¶¶ 19, 47). The “About” section of the club's Facebook page states that “there have been major renovations of both the clubhouse and the golf course” in recent years, and that it is a “modern club with a diverse membership.” (Pl. Ex. D). It appears that the club uses the page to post information about its dinner menu and special member events. (Id.). Although its website has been modified since this litigation began, public content on Woodland's website in 2014 described the club's ability to host golf outings, stating that it “deliver[s] the consummate golf experience in a unique setting.” (Garfinkel Aff. Ex. F). The website also touted its ability to “creat[e] memorable events, ” including weddings and holiday celebrations, and directed interested parties to contact the club for more information. (Id.).

         Woodland's website also includes information about membership. It states that the club has “limited membership” and that “[c]andidates must be proposed by 2 club members, and endorsed by a third member, ” and must “complete an interview process.” (Longo Decl. Ex. B). The website directs interested parties to either contact Garfinkel or fill out an on-line form to request membership information. (Id.). According to Woodland, membership inquiries received through the website are responded to by a phone call from Garfinkel, informing prospective applicants of the formal application procedures. (Garfinkel Aff. ¶¶ 7-11).

         7.The Club's Sources of Revenue

         Woodland's revenues derive predominately from initiation fees, membership dues, and special assessments. (Id. ¶ 28-30; id. Exs. C, D). In tax years 2014 and 2015, the club's revenues were between $8.3 and $7.6 million, with approximately 3.5% of that deriving from non-member or “unrelated” business (including, for example, non-member functions, concessions, and caddy and cart fees). (Id. at 28-29).

         8. Lobel's Request to Play Golf at the Club

         Lobel is not a member of the club. Gerald Chervinsky has been a member since the late 1990s. While the timing is disputed, the parties agree that at some point between 2012 and 2014, Chervinsky asked Woodland's Head Golf Superintendent, David Mucciarone, whether Woodland would permit Lobel to play golf using his SoloRider. (Chervinsky Aff. ¶ 1; Chervinsky Dep. at 26-28).[2] Mucciarone responded that the SoloRider would not be permitted on the greens because of concerns that it would cause damage. (Chervinsky Dep. at 26).

         In July 2014, Chervinsky e-mailed the Chairman of the Greens Committee, John Mahoney, requesting that Lobel be permitted to golf at Woodland using his SoloRider. (Pl. Ex. J at 19-20). Mahoney responded that “[w]e looked into the type of cart that Mr. Lobel uses and concluded that it would cause damage to the golf course, particularly the greens.” (Id. at 18). Mahoney stated that the club had “therefore decided not to allow access to our course to that type of golf cart, ” but that Lobel would be welcome to use the cart without going onto the greens or in the bunkers. (Id.).

         In August 2014, Woodland performed a test of the SoloRider to determine whether or not it would permit use of the device on its greens. (Mucciarone Dep. 68-69, 75). The test was performed by several members of the board of directors as well as Garfinkel, Mucciarone, and Chris Donadio, the Assistant Greens Superintendent. (Id. at 75; Donadio Dep. at 6). Lobel had offered to perform a similar test himself, but Woodland declined that offer. (Pl. SMF ¶ 34). The results of the test (which are disputed by the parties) were discussed at a meeting at the club in early September. (Chervinsky Dep. at 143-44).[3] After the meeting, Chervinsky was informed that Lobel would not be permitted to use the SoloRider on the greens unless Chervinsky and Lobel signed an agreement stating that Lobel would only use the SoloRider once at Woodland and then never attempt to play there again. (Id. at 143-45). The club's decision was jointly made by club members and Garfinkel. (Garfinkel Dep. at 126). Chervinksy declined Woodland's offer. (Chervinsky Dep. at 146).

         The parties disagree as to whether the SoloRider would cause harm to Woodland's greens and bunkers.[4] They also disagree as to the extent to which Lobel's method of ...

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