When the $%#! Did We Become a Public Accommodation!?

I’ll spend a lot of time writing in this blog about things that public accommodations (i.e. businesses that offer goods and services to the public) should know. For some entities such as private clubs, swimming pools, and community associations, however, the first question that should be addressed is “Am I a public accommodation?” Clubs and associations can all too easily cross the line from non-public entity to public accommodation. Although sometimes the business rewards may be worth it, it is important to know the risks and implications of such decisions.

Under the Americans with Disabilities Act (ADA) a place of public accommodation is a “facility, operated by a private entity, whose operations affect commerce.” This definition includes most “places of lodging” as well as recreational facilities, restaurants, and retail businesses. Public accommodations must satisfy a myriad of construction and accessibility requirements ranging from the number of accessible disabled parking spaces to the height of mirrors in restrooms. Private clubs and associations generally do not fall within the definition of a public accommodation and do not have to satisfy these accessibility requirements (although sometimes city or housing requirements may apply).

A private club or community association runs the risk of becoming a public accommodation when they offer goods or services to the public — especially if such services are for a fee or the entity generates revenue from such activities. Generally, the simple use of private facilities such as swimming pools, dining facilities, and golf courses by guests of members will not cause them to become public accommodations. The same is usually true for sponsored outings and events or promotional and charity functions. When an otherwise non-public entity decides to offer up services to the public, however, they risk crossing over into the world of public accommodations. Common practices I see which create these risks include where:

Community associations sell pool memberships to neighboring communities to generate revenue;

Private clubs allow the general public to pay to use golf and tennis facilities one day a week;

Non-public clubs allow the general public to use private dining facilities, particularly when such use is allowed on an ad hoc basis and not associated with an event or function;

Private clubs or community associations host swim team events — particularly if there is a charge or fee; and

The general public is allowed to make purchases from golf or tennis pro shops without joining the club.

Like so many aspects of the ADA, there are no “bright line” rules that provide specificity as to exactly when a non-public entity crosses the line. In many cases the issue is resolved only after expensive litigation. With the state of the economy being what it is, eliciting additional revenue streams may sometimes make sense for private clubs and community associations. The important thing is that they make such decisions with their eyes wide open to this potential risk.

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