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 applica-
bility 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) 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
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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

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