This document provides background information on a case before the Supreme Court regarding whether Bluegrass Country Club qualifies as a private club exempt from the Americans with Disabilities Act (ADA). It summarizes the lower court opinions, relevant statute, statement of facts, and procedural history of the case. The key issue is whether Bluegrass Country Club's membership practices and policies demonstrate that it is genuinely selective, indicating private club status. The document analyzes factors courts have used in previous cases to determine private club status and argues that when applied to Bluegrass Country Club, these factors show it is a private club exempt from the ADA.

1. 1
OPINIONS BELOW
The Memorandum and Order of the United States District Courtfor the Eastern
District of Kentucky is unpublished. A copy of the Memorandum and Order is attached as
Appendix A. The opinion of the United States Courtof Appeals for the Sixth Circuit is
unpublished. A copy of the opinion is attached as Appendix B.
STATUTE INVOLVED
This case involves the interpretation of the private club exemption, 42 U.S.C.A.
§ 12187, of Title II of the Americans with Disabilities Act, 42 U.S.C.A. § 12182(a). A copy
of the provision has been attached as Appendix C.
STATEMENT OF THE CASE
A. Statementof the Facts
The Respondent, Bluegrass Country Club (“BCC”), is a golf course and country club
located at 71 Whirlaway Drive, Cold Spring, Kentucky. See R. at 1. The Petitioner, Julia
Hammerschmidt(“Ms. Hammerschmidt”), became a “junior executive member” of BCC
upon marrying her husband, “equity member” Rowan Hammerschmidt, in 2003. Id. Ms.
Hammerschmidt’s issues ensued in 2012, when she developed degenerative arthritis in her
hip. Id. The condition did not impact Ms. Hammerschmidt’s golfing prowess, but it did
render her unable to play eighteen holes without the aid of a golf cart. Id. Due to the
restrictions on cart usage throughoutthe week, restrictionson cart usage in club
tournaments, and restrictions on cart usage at the Kentucky Classic Golf tournament, Ms.
Hammerschmidtwas unable to golf as frequently and competitively as she did prior to her

2. 2
degenerative arthritis. Id at 1-2. Most specifically, her inability to walk eighteen holes of
golf rendered her unable to participate in the members-only tournament. Id.
BCC takes pride in its membership practices and selectivity. Id. at 2. The Club
bragged that it denied membership to an owner of a prestigious Kentucky newspaper
because he was Jewish and further noted that it would undoubtedly deny membership to
President Obama if he were to apply. Id. Candidates for BCC membership must be
sponsored by two members, undergo credit and criminal background checks, and achieve
the vote of two thirds of BCC equity members in order to be granted membership. Id.
Rowan Hammerschmidt is an “equity member” of BCC, while his wife, the
Petitioner, is a “junior executive member.” Id. at 1. Equity members have full privileges
and a vote at all Club meetings. Id. at 2. These members have an ownership of the club
and are entitled to unlimited golf, practice facilities, and all club activities (“Members Only
Grill,” etc.). Id. There is a $12,500 buy-in as well as monthly dues of $300 associated with
equity membership. Id. Junior executive members are either the spouse or an under
twenty-three year old child of an equity member. Id. These members have limited tee
times, pay $100 of dues each month, and are not permitted in the “MembersOnly Grill.”
Id.
BCC is governed by a fourteen-member Board of Trustees. Id. at 3. All of these
board members are male equity members of BCC. Id. The property houses an eighteen-
hole golf course, a swimming pool, four tennis courts, and a dining facility for members and
their guests. Id. The property also has a separate driving range, nine-hole course, and pro

3. 3
shop that are open to the public upon payment of a fee. Id. The driving range and nine-
hole course are located on a separate twenty acre tract of land; this tract runs adjacent to
the 1000 acres upon which BCC sits. Id. The twenty acres is recorded separate from the
1000 acres. The club holds events for nonmembers and members alike on the twenty acre
tract, but nonmembers must be sponsored by a member in order to hold an event. Id. at 4.
Ms. Hammerschmidt, as stated above, was a “junior executive member” of BCC. Id.
at 1. An excellent golfer, she had won BCC’s intra-club women’schampionship in 2008,
2009, and 2010. Id. Following her developmentof degenerative arthritis and her inability
to play eighteen holes withouta cart, rendering her disqualified from tournament play, Ms.
Hammerschmidt filed suit against BCC based upon gender discrimination and disability
discrimination. Id. at 4.
B. Course Proceedings and Disposition in the Courts Below
Following the onset of the degenerative arthritis in her hip and the subsequent
difficulties in her golf experience at BCC (specifically regarding her inability to participate
in tournaments), Petitioner filed suit against BCC in the United States District Court for
the Eastern District of Kentucky. Id. Her two-count complaint alleged: (1) gender
discrimination under the public accommodation provision of Title II, 42 U.S.C.A. § 2000(a);
and (2) disability discrimination under the Americans with Disabilities Act, 42 U.S.C.A. §
12182(a). Id.
Defendant moved to dismiss both claims. Id. at 1. Defendant’s motion was granted
with regard to both counts. Id. at 4. The court dismissed the gender discrimination count

4. 4
based on its lack of inclusion in the public accommodation legislation. Id. Though some of
Defendant’s policiesdisparately impact women, gender is not a protected class under the
public accommodation provisions of Title II, 42 U.S.C.A. 2000(a), and Plaintiff stated no
other cause of action applicable to gender discrimination. Id. The courtdismissed count
two because, regardless of any disability discrimination, the Defendant is a private club
and exempt from the Americans with Disabilities Act. § 12182 (a); See R. at 4.
Plaintiff appealed the districtcourt’s dismissal of her disability discrimination
claim. Id. at 5. On appeal, the United States Court of Appeals for the Sixth Circuit was
charged with the issue of whether Bluegrass Country Club is a public accommodation and
subject to the ADA. Id. Upon review, the court found that there was no error in the district
court’s decision. Id. Accordingly, the court of appealsaffirmed the districtcourt’s judgment
and upheld the dismissal of the disability discrimination claim. Id.
This Court granted certiorari to decide a single issue: whether Bluegrass Country
Club is a private club and therefore exempt under the Americans with Disabilities Act. Id.
at 6. Because the court of appeals correctly determined that BCC is a private club and
exempt from the Americans with Disabilities Act, this Courtshould affirm the Sixth
Circuit’s judgment.
C. Standard of Review
This Court has been charged with reviewing a single issue: whether Bluegrass
Country Club is a private club and therefore exempt under the Americans with Disabilities
Act. Id. The burden of proving the private club exemption is on the Respondent. Since the
district court judge decided this question as a matter of law on a motion to dismiss, this

5. 5
Court must apply the de novo standard of review. See Berkovitz v. United States, 486 U.S.
531, 540 (1988) (“Because the decision we review adjudicated a motion to dismiss, we accept
all of the factual allegations in petitioner’s complaint as true and ask whether, in these
circumstances, dismissal of the complaint was appropriate.”). Though this Court need not
concur with lower courts, it should still affirm the Sixth Circuit’s judgment because
Petitioner failed to state a claim upon which relief could be granted: BluegrassCountry
Club is a private club, not a public accommodation, and therefore is exempt from the
restrictions and requirements of the Americans with Disabilities Act.
SUMMARY OF THE ARGUMENT
The United States Court of Appeals for the Sixth Circuit correctly affirmed the
district court’s dismissal of Ms. Hammerschmidt’s disability claim. The Sixth Circuit
correctly concluded that Bluegrass Country club is a private club, not open to the public,
and is exempt from Title III of the ADA’s coverage. Accordingly, this Court should affirm
the Sixth Circuit’s judgment.
Title III provides for coverage of all public accommodations, but does not apply to
private clubs. This means that the ADA private club exemption excludes private clubs that
were not subject to Title II of the Civil Rights Act of 1964. Therefore, in reaching the
conclusion that BCC is a private club and exempt from the ADA, the analysis of its
exemption must come from Title II case law precedentand a look into the relevant factors
presented, as compared to the facts of Ms. Hammerschmidt’s claim against Bluegrass
Country Club.

6. 6
Case law has found a number of factors that, when balanced and applied, indicate
whether a club qualifies for private club status. The most critical of these factors is the
genuine selectivity of a club. This factor is not only the most critical, but it is the most
prevalent in BCC’s privacy analysis. Bluegrass Country Club has a specific, deliberate
manner of screening its applicants and consistently follows such procedures, indicating that
BCC is a private club.
Several other factors that are typical of private clubs relate to the character and
structure of the organization. The high level of membership control, the history and
purpose of the club, the formalities instituted, the not for profit classification, and the lack
of advertising for new members are all indications of whether a club is private or public.
These additional factorsfurther show that Bluegrass Country Club is a private club.
A final factor, closely related to the critical genuine selectivity, is the appropriate
nonmember use policies and the requisite separation and distinction needed for a mixed use
facility. The fact that BCC follows a limited policy regarding nonmembers, only allowing
use to members and bona fide guests (after being sponsored, etc.), evidences that it is not
open to the public but is a private club. Additionally, the separate twenty acre tract open to
the public allows a mixed use facility in which the thousand acre BluegrassCountry Club
tract is private and not subject to the ADA, while the twenty acre tractis a public
accommodation and subject to the ADA. The two are separately recorded and physically
distinguished, indicating that private club status is preserved. BCC’s operation of a
separate facility open to the public does not kill its private club status, but further

7. 7
enunciates the club’s (1000 acres) purpose as opposed to the purpose of the public portion
(20 acres).
The Sixth Circuit correctly affirmed the dismissal of Ms. Hammerschmidt’s
disability discrimination claim by concluding that Bluegrass Country Club is a private club
exempt from coverage under Title III of the Americans with DisabilitiesAct. Accordingly,
this Court should affirm the Sixth Circuit’s judgment.
ARGUMENT
I. BLUEGRASS COUNTRY CLUB IS A PRIVATE CLUB AND EXEMPT FROM
THE REQUIREMENTS OF THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act (“ADA”) prohibits discrimination “on the basis
of disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person who
owns, leases (or leases to), or operates a place of public accommodation.” § 12182 (a). This
providesthat a person will not be discriminated against based on disability by being
completely denied participation, by being allowed participation with unequal benefit, or by
enjoying a separate/different benefit. § 12182 (b)(1). Public accommodationsinclude a
“gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”
§ 12181(7)(L). However, just because a facility falls within one of these categories does not
mean it cannot be exempt from the ADA as a private club. Jankey v. Twentieth Century
Fox Film Corp., 212 F.3d 1159, 1161 (9th Cir. 2000). The provisions of 42 U.S.C.A. § 12182

8. 8
do not apply to private clubs or other organizations “exempted from coverage under Title II
of the Civil Rights Act of 1964.” § 12187.
Looking at the provisions of the ADA, the determination of whether the club is a
public accommodation or a private club will either render BCC exempt from the Americans
with Disabilities Act or subject to the scrutiny of the Act. The test to determine whether a
club qualifies for private club status, however, is not clear cut; the Civil Rights Act provides
little assistance on the matter and merely sets forth a factual test, without actually
defining “private club.” Wright v. Cork Club, 315 F. Supp. 1143, 1150 (S.D. Tx. 1970).
Case law provides many factors for private club analysis, but none are dispositive and each
must be looked at on a case by case basis. Id. The differences among organizations call for
this “fact-based inquiry” into the circumstances of each case. Nesmith v. Young Men’s
Christian Ass’n. of Raleigh, N.C., 397 F.2d 96, 98 (4th Cir. 1968). Put simply, the definition
of “private club” is elusive and largely dependent on the facts of the case relative to many
factors derived from precedent.
There are a number of relevant factors that, when analyzed alongside the facts, can
“tip the balance for or against private club status”: genuine selectivity of the group in
admission of members; membership control over the operationsof the establishment;
history of the organization; purpose of the club’s existence; the formalities observed by the
club; whether the club is profit or not for profit; whether the club advertises for members;
and use of the facilities by nonmembers. U.S. v. Lansdowne Swim Club, 713 F. Supp. 785,
796-797 (E.D. Pen. 1989).

9. 9
Analyzing the facts associated with Ms. Hammerschmidt’sclaim, in conjunction
with these factors, the Sixth Circuit correctly affirmed the district court’s dismissal of Ms.
Hammerschmidt’s disability discrimination claim. BCC is a private club exempt from the
Americans with Disabilities Act, putting her claim outside of the ADA’s protection.
Accordingly, this Court should affirm the Sixth Circuit’s judgment.
A. The Club’sMembership Practices Are Both Highly Selective and Subject to
Member Discretion
The Americans with Disabilities Act approaches the issue of discrimination based on
disability in settings of public accommodation. § 12182 (a). Conversely, an organization
that is deemed a “private club” is exempt from the restrictions of the ADA. § 12187. In
distinguishing a private club from a public accommodation, the most important factor is
“genuine selectivity of the membership process.” Lansdowne, 797. Selectivity has been
viewed in many lights in the past. It has been said to regard the “nexus between the
organization’s purpose and its membership requirements.” Welsh v. Boy Scouts of
America, 993 F.2d 1267, 1277 (7th Cir. 1993). It has been seen as a screening process aimed
at protecting freedom of association values. Martin v. PGA Tour, Inc., 984 F. Supp. 1320,
1325 (D. Or. 1998). As with all the aforementioned factors to be considered, selectivity has
no concrete formula but must be determined on a case by case basis.
Many pieces go into the selectivity equation: sufficiency of the membership fees;
numerical cap on club membership; membership control over the selection of new members;
formality of the club’s admission procedures; admission standards; etc. Lansdowne, 797.
Looking at each of these relative to the facts of the case, Bluegrass Country Club satisfies

10. 10
the analysis and consequently satisfies the selectivity requirement for private club status
and exemption from the Americans with Disabilities Act.
The presence of dues, as well as initiation fees, is a general characteristic that many
private clubs possess. U.S. v. Jordan, 302 F. Supp. 370, 376 (E.D. La. 1969). Some courts
have gone so far as to deem a club private “due in substantial part to the substantial
membership fee” and dues. Reimer v. Kuki’O Golf and Beach Club, Inc., 2013 WL 1501522
(D. Haw. 2013). The presence and substantiality of the dues are both important to the
question of selectivity. Looking at the membership fees as a means of establishing
selectivity, it is clear that BCC does not concede membership withouta high level of
financial commitment.
In order to join BluegrassCountryClub as a “junior executive member,” the member
must be the spouse or child (under age 23) of an “equity member.” See R. at 2. Junior
executive members pay $100 in monthly dues but enjoy only limited tee times; additionally,
they are not permitted in the “Members Only Grill.” Id. This monthly fee for junior
executives, however, is only available with the prerequisite of an equity membership. Id.
An equity member pays monthly dues of $300, supplemented with an initial buy-in of
$12,500. Id. These members enjoy full privileges of BCC. Id. Looking at this practically, a
family of three who seeks membership at the club would pay the $12,500 buy-in for equity
membership, $300 for monthly equity dues, and $200 monthly dues for each junior
executive member; this totals to $12,500 from the buy-in and $6000 each year in dues.
That amount only includes one equity membership providing full privileges and enjoyment
of the club. If the entire family were to seekequity membership, there would be a

11. 11
composite $37,500 buy-in and $10,800 of monthly dues each year. These expectations
certainly satisfy the presence and substantiality of dues sought to indicate the heightened
standards for selectivity present in private clubs.
The placement of a cap on membership numbers can be seen as a proponent for
finding selectivity, but it is not dispositive on the issue. Welsh, 1277. Large membership
numbers do not, standing alone, deprive an organization of private club status so long as its
membership requirements were parallel to the purpose of the group.Martin, 1324. Neither
the popularity of an organization nor the small number of rejections indicates that a club
does not possessthe requisite membership requirements. Welsh, 1277. The lack of a
maximum number of members accepted does not, therefore, indicate that BCC is a public
accommodation.
A number of other characteristicsof the membership process, which will be further
analyzed following this, can compensate for the lack of a members cap. The purpose of a
members cap in determining selectivity is to show that not everyone who can afford the
financial burden of membership will be accepted. With the requirements of sponsorship by
two current BCC members, credit and criminal background checks, and survival of a
membership vote in place to achieve membership, the necessity of a membership cap can be
minimized in the selectivity equation. Additionally, the character of the club sets forth a
rich history that applicants can see and feel. It is likely that only those who know they
meet the standards and will “fit in” with the Bluegrass Country Club culture seek
acceptance in the club.

12. 12
Membership control over the selection of new members indicates a high level of
selectivity in that the members of the club are the ultimate last voice in determining
acceptances. A more democratic internal governance of the club, especially regarding new
member processes, brings a higher indication of a private club. Cornelius v. Benevolent
Protective Order of the Elks, 382 F. Supp. 1182, 1203 (D. Con. 1974). As individuals apply
for membership with BCC, they undergo a seriesof steps which ultimately leads to a vote
from two thirds of the currentmembers (equity members – not junior executive members).
See R. at 2.
Related to the membership control, the formality of the club’s admission procedure
and the admission standards indicate that it is not an arbitrary decision-making process; it
is a methodical, standardized, unchanging manner by which the club accepts or rejects
those seeking membership. Jordan, 376. A case with a similar predicament, trying to
establish its private club status, had nearly identical procedures as BCC; the organization
required applicantsto be recommended by two members, be male, be of good character,
believe in a Supreme Being, fill out and sign an application, be referred to an investigating
committee, and following investigation be put to a vote. U.S. v. The Trustees of the
Fraternal Orderof Eagles. 472 F. Supp. 1174, 1176 (E.D.Wi. 1979). Despite the fact that
BCC does not require that members be male and believe in a Supreme Being, BCC parallels
this case in the respectthat they have specific character expectations for potential
members. The downfall of the Eagles organization’s argumentfor exemption from public
accommodation restrictions, however, was their failure to comportwith their own

13. 13
procedures. Id. at 1176. Converse to the Eagles case, there is no evidence or indication
that BCC has strayed from its member selection process at any time.
BCC member-hopefuls must be sponsored by two current members in order to even
be considered. See R. at 2. Then they must pass credit and criminal background checks to
ensure that they are financially capable of making their payments, fiscally responsible, and
are law-abiding citizens. Id. Only after they have successfully completed these steps can
their membership potential be tested by a vote of two thirds of the equity members of BCC.
Id. More testament to the formality of the admission procedure is the creation of the two
categories of membership discussed above. The By-laws of BCC established the distinction
between equity membersand junior executive members; this further evidences the selective
and elite nature of BCC’s membership process. Even once members have been accepted,
they are not all put on a level playing field with equal access, privileges, and priority at
BCC.
In addition to the pieces of the selectivity equation, BCC makes it publicly known
that they, as a club, are proud of their selective membership practices. They do not shy
away from their arguably discriminatory membership practices. BCC’s purpose behind its
new member application processing formula is to screen out those individualswho do not fit
their club culture for any reason, in an effort to protect their freedom of association.
Martin, 1325. Bluegrass Country Club is the oldest golf course and country club in the
Midwest. See R. at 1. It hosts the televised, nationally prestigiousKentucky Classic Golf
tournament every five yearsvia a rotation schedule among Kentucky’s five country clubs.
Id. at 2. It hosts two “club” golf tournaments each year, both of which culminate in highly

14. 14
sought-after prizes for the winners. Id. at 3. BCC exercisessuch extreme selectivity in
order to maintain this level of prestige, class, and elitism and therefore must be deemed to
be a private club.
B. The Nature of the Organization is Such That Its Operations, Intent, and
Structure Align With that of a Private Club
The general character of BCC, via a number of factors, strongly indicates that it is a
private club, not a public accommodation. First, the membersof BCC have a high level of
control in the operations of the club. Lansdowne, 796; Cornelius, 1203. Next, BCC’s
history and purpose suggest that the club was created to serve its members, not the public
at large; the club’s formalities and proceduresare consistentwith that of a legitimate
private club, not just a public entity who made changes to shirk the requirements of civil
rights legislation; and it is registered as a non-profitcorporation under Kentucky law.
Lansdowne, 797; Trustees, 1175; Wright, 1153. Lastly, BCC does not actively advertise to
find new members; its publicity, if any is present, is geared toward members for their
information and guidance. Wright, 1153.
1. Members have a high level of control and participation in the operations
of BCC
A more democratic degree of membership control over internal governance indicates
that the organization is private. Cornelius, 1203. This is especially relevant in the
selection of new members; as highlighted above, the more democratic the processis, the
better it looks for exemption purposes. Id. BCC operates with the requisite level of

15. 15
member control and participation necessary to factor into the private club equation.
Lansdowne, 796.
Member recommendation or sponsorship is needed for many activities at BCC.
Nonmember events such as weddings, corporate events, and other social outings are held
on the twenty acre tract, but the catering of these events must be sponsored by a member.
See R. at 4. Members must sponsor individuals before they can begin the process of
admission for membership. Id. at 2. Once the individuals have been sponsored by two
members, they eventually are voted upon by the equity members at BCC before they can
ultimately become members of BCC. Id. Potentially most critical in the member control,
though, is the Board of Trustees, which is comprised of fourteen equity members. Id. at 3.
By way of an annual Board of Trustees meeting and a bi-annual membership meeting, this
governing group of equity members makes decisions about the club and its operations in
general and also oversees the process of awarding membership and voting on new
members. Id. at 3. The presence of member control ensures that BCC will keep close to its
membership standards and maintain the values it seeks among its members. BCC’s
membership control indicates that it is indeed a private club.
2. BCC’s past and present character indicates that the club is legitimately
private
One of the obvious purposes of the Civil RightsAct is to protect, exclusively, the
legitimately private clubs that have genuine criteria for membership. Nesmith, 102. The
history of the organization must be consistent with the intent to serve the “desired
membership population, not to be a subterfuge for civil rights legislation.” Lansdowne,

16. 16
802. Courts have provided that the elusive determination of whether a club is private is a
legal standard by which clubs must conform to the legislative purpose that was present
upon inception. Wright, 1150. This is evidenced largely by the “not for profit” classification
of BCC; the function of the club is solely for the benefit and pleasure of the members. Id. at
1153. As the oldest golf course and country club in the Midwest, a not for profit
classification shows that the club has long been devoted to its members and has not
whimsically altered its course to comportto factorsfor private club exemption from the
Americans with Disabilities Act (or the rest of the Civil Rights Act, for that matter).
BCC’s history, purpose, not for profit classification, and formalities indicate that it
has been and was intended to be a private club. It is the oldest golf course and country club
in the entire Midwest. It is classified as a non-profitorganization, showing that its sole
purpose is not to generate profit, but to serve its constituencyand provide services and
opportunities for members. Further showing the intent and sincerity of the BCC’s privacy
are the formalities that the club observes. Lansdowne, 797. BCC has numerous
formalities/procedures that indicate its private status: a fourteen-member Board of
Trustees; annual Board of Trustees meetings; bi-annual membership meetings; new
member processes; By-laws creating two categories of membership; etc. See R. at 2-3.
These deliberately crafted and religiously followed procedures show that Bluegrass Country
Club is operated according to tradition and parallel to the intent of its founders.
3. BCC does not actively advertise for members
“Organizations which advertise and solicitnew membersdo not fall within the
private club exemption.” Lansdowne, 797. “Advertise” can mean a number of things: “to

17. 17
make the public aware of something that is being sold; to make a public announcement
about something that is wanted or available; or to cause people to notice something.”
Webster’s Third New International Dictionary (1993). Under any and all of these
meanings, BCC’s actions do not constitute advertising or soliciting new members. Even if
BCC’s efforts did satisfy one of the definitions of advertise, though, the club’s actions were
relative to the twenty acre tract which is separate from the private thousand acre tract.
The facts present two instances which must be distinguished from advertising.First,
BCC includes information about catering, golf lessons, the driving range, the nine-hole
course, and the pro shop on their club website. See R. at 4. This can hardly be deemed an
effort to solicit new members. The club website, likely used primarily by club members,
contains the above inclusionsfor the purpose of informing about these services and
features; it is not for the purpose of making the public aware of membership opportunities,
publicly announcing that members are wanted/memberships are available, or making
people notice the potential for membership. At most, the purpose of these provisions on the
website is to inform and educate club members, who are not members of the “public” (as
noted in the definition of “advertise”).
Second, BCC views reaching out to nonmembers by catering their events on the
twenty acre tract as a way to possibly increase membership. Id. It would be incorrect to
designate this as BCC making the public aware of something being sold, something
available, or something to notice due to the fact that the catering events are held on the
twenty acre tract. The portion of BCC that is a private club, the thousand acre tract, is in
no way being promoted via these member-sponsored events for nonmembers. The twenty

18. 18
acre tract is separate from the thousand acre BCC property, which is not being advertised
at all through these events. Holding nonmember events on the public portion of the BCC
does not constitute advertising for new members for the private portion, since the twenty
acre tract is not where the members actually enjoy the BluegrassCountry Club’s amenities.
Even if the website and nonmember catering would constitute advertising, though,
both are in relation to the twenty acre tract running adjacent to the actual thousand acre
BCC. As discussed next, the thousand acre tract is the private club and exempt from the
Americans with Disabilities Act, while the twenty acre tract is distinctly separate and could
be considered a public accommodation without killing BCC’s private club status. BCC’s
actions do not constitute advertising for new members and therefore its private status is
unharmed by the actions.
C. Nonmember Use and Mixed Use of the BCC-Owned TractsDoesNot Preclude
Them From Private Club Status
Within bounds, nonmember use of a club does not kill private club status. Kelseyv.
University Club of Orlando, 845 F. Supp. 1526, 1529 (M.D. Fla. 1994). (A private club had
a limited guest policy, but there was evidence that this policy was not followed on various
instances; this rendered the club a public accommodation under the ADA). In many cases
the courts have found a club to be private when the nonmember use was limited, mixed use
was present, and there were visible and ascertainable distinctions between the private
portion and the public portion.
In one case involving a suit based on inaccessibility to disabled persons of a film
production studio, the courtprovided that “‘mixed use’ facilities can also exist, consisting of

19. 19
an exempt facility of which a portion is a public accommodation. That portion, and only
that portion, will therefore be subject to the ADA.” Jankey v. Twentieth Century Fox Film
Corp., 14 F. Supp. 2d 1174, 1179 (C.D. Cal. 1998). This principle was illustrated in
another case involving a disability claim based in part on the exclusion from the store’s
employee-only restroom. Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1048 (9th Cir. 2008). The
court held that even though the retail portion of the store was a public accommodation, the
restroom was not. Id. The Doran court reiterated that in cases of “mixed-use” facilitieswith
only part of the facility being public, the portion that is closed to the public is not to be
considered a public accommodation and therefore is exempt from the ADA. Id. To the
extent that such a mixed use facility is closed to the public at large, it is not subject to the
public accommodationsrequirements of the Americans with Disabilities Act. Olingerv.
U.S. Golf Ass’n, 2005 F.3d 1001, 1004 (7th Cir. 2000), vacated on other grounds, 532 U.S.
1064 (2001).
Other cases involving the limited nature of nonmember use have held that
occasional or inconsistentuse does not make the club a public accommodation. One such
case had very similar facts to the present case and held that a private club with a ‘limited
guest policy’ is still not to be considered a public accommodation so long as guests are not
being permitted “unfettered use of facilities.” Kelsey, 1529. Another case concluded that a
private club is not converted to a place of public accommodation under the ADA by only
occasional use of the facilities by nonmembers, provided that the nonmembers have been
invited by club management or members. Reimer, 3. Opposite to these findings, though,
one country club was found to be a public accommodation because their facilities were too

20. 20
accessible to nonmembers. Thornton v. Shaker Ridge Country Club, Inc., No. 07-CV-761
(DRH), at 3 (N.D. NY. 2007). Even with high levels of selectivity, including two signatures
of current members, a committee meeting, a meeting with elected member officers,
approval, and fees, the club was deemed public as a result of their lax nonmember habits.
Id. These cases indicate that nonmember use is not completely barred, but there is a very
specific distinction to be noted when allowing nonmember use. A truly private club limits
use to members and bona fide guests; regular indiscriminate use of the club defeats the
purpose of a private club. Wright, 1151-1152.
Circumstances that presenttwo distinctly separate portions owned by the club can
still maintain private club status as well. One court dealt with this issue where there were
different buildings involved and held that there can still be an exemption so long as there is
a distinction between the uses of the buildings. Nesmith, 99. Alternately, one case held
that a PGA tournament attempting to “compartmentalize”the in the ropes and behind the
ropes areas was not sufficient to constitute mixed use. Martin v. PGA Tour, Inc., 204 F.3d
994 (9th Cir. 2000). Zoning off areas to be private or public is clearly differentthan two
distinctly separate facilitieswithin an organization’s facilities. BCC’s thousand acre tract is
only open to members of the club, while the twenty acre tract running adjacent to the
thousand acre tract is open to public use upon paymentof a fee. The clear separation
between the thousand acre BCC tract and the publicly used twenty acre tract illustrates
the physical and figurative distance between the tracts; one is a private club exemptfrom
the ADA, while the other is a public accommodation subject to the ADA .

21. 21
CONCLUSION
The Sixth Circuit correctly concluded that Ms. Hammerschmidt’s disability
discrimination claim should be dismissed. BCC satisfies scrutiny against the factors that
precedent has provided for determining private club status and ADA exemption.
Accordingly, this Court should affirm the Sixth Circuit’s judgment because Bluegrass
Country Club is a private club and is consequently exempt from the requirements of the
Americans with Disabilities Act.