SEP 8 1994

The Honorable Barbara Boxer United States Senator 1700 Montgomery Street Suite 240 San Francisco, California 94111 Dear Senator Boxer: This letter is in response to your inquiry on behalf of your constituent, XX , who asked about the applicability of the Americans with Disabilities Act (ADA) to the San Rafael Elk's Club. XX letter states that there are no ramps, handrails or other accessibility features and that he has asked the Board of Trustees to install a handrail, but they have not done so. XX also stated that he believes the Elks Club is in violation of the Americans with Disabilities Act for failing to install the items he listed. Under title III of the ADA, an entity that owns, operates, or leases a place of public accommodation, must ensure that they remove barriers to accessibility where readily achievable to do so. Readily achievable is defined as, "easily accomplishable and able to be carried out without much difficulty or expense." If this organization is a private club, however, it may be exempt from title III coverage. Whether a particular facility is a private club is a case-by-case determination, based on a variety of factors that have been recognized by courts. We cannot make a particular determination of whether this particular Elk's club is a private club, but some of the factors to be considered in such a determination are the following: (1) whether the club is highly selective in choosing members;

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-2(2) whether the club membership exercises a high degree of control over the establishment's operations; (3) whether the organization has historically been intended to be a private club; (4) the degree to which the establishment is opened up to non-members; (5) the purpose of the club's existence; (6) the breadth of the club's advertising for members; (7) whether the club is non-profit; (8) the degree to which the club observes formalities; (9) whether substantial membership fees are charged; (10) the degree to which the club receives public funding; and (11) whether the club was created or is being used to avoid compliance with a civil rights act. Nonetheless, private clubs are still covered by title III to the extent that they open up their establishments to the general public for a purpose that falls within one of the categories of places of public accommodation. Thus, if the Elk's Club hosts events that are open to persons other than the members and their guests, then they must make the public areas accessible during

those events, to the extent it is readily achievable to do so. I hope this information is useful to your constituent. If XX thinks that this particular Elks Club meets the criteria of a public accommodation rather than a private club, as stated above, he may file a complaint with the Department by writing a letter to the Public Access Section, P.O. Box 66738, Washington, D.C. 20035. Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosures 01-03430 June 14, 1994

Mr. John Hess % Senator Boxer 1700 Montgomery St. #240 San Francisco, Ca. 94111 Dear Mr. Hess: Thank you for your phone conversation of June 1st and timely advice. By the way, I got a nice letter from Senator Boxer expressing her willingness of being of assistance. The following is a short synopsis of the situation as per request. The San Rafael Elks occupy a very steep hillside site and in order to use their facility you must go from one level to another. There are no handrails, ramps, or other safety features. If somebody slips there is not a tree, a bush, or anything to grab on to. Your could roll on concrete 20 feet and kill yourself. On January 27, 1994, I attended a Board of Trustee meeting and at which time I apprised them of the situation and proposed installing a handrail especially between the lodge and swimming pool. They thanked me and said

they would study the matter. I attended their February meeting to ascertain the progress. No progress. They thanked me and said they still are studying the matter. I told them I hoped would comply with my wishes by May 1st. I decided to give them a month or so to work on it. Since that time they've cancelled meetings with no prior notice, have not responded to my calls, nor have future meetings been listed. I believe they're stonewalling the issue. It's been six month now and no action. I believe I've been reasonable and have acted in good faith. I believe they are irresponsible and negligent and also in violation of the Americans with Disability Act, specifically the part that pertains to public accommodation. They do invite the public in on a continuous basis and at a charge. Upon your request, I respectfully ask Senator Boxer to send a letter to the Department of Justice, the enforcing agency, asking them to expedite a violation application for the ADA to me. Thank you and Senator Boxer for being so sensitive in this matter. I sure makes me feel proud to get such service. Yours truly, XX San Rafael, Ca/ .XX XX 01-03431