United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY
Dennis Saylor IV United States District Judge
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.
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
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.
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
otherwise noted, the following facts are undisputed.
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).
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).
The Woodland Golf Club
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).
Membership and Governance of the Club
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).
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.).
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).
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).
Attaining Membership in the Club
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). 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).
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).
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).
Access and Non-Member Events at the Club
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).
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).
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).
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.).
The Club's Website and Social Media
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
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. ¶¶
Club's Sources of Revenue
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).
Lobel's Request to Play Golf at the
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). Mucciarone responded that the SoloRider
would not be permitted on the greens because of concerns that
it would cause damage. (Chervinsky Dep. at 26).
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.).
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). 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).
parties disagree as to whether the SoloRider would cause harm
to Woodland's greens and bunkers. They also disagree as to the
extent to which Lobel's method of ...