City’s anti-discrimination law applies to Maroon Creek Club, motion argues
A recent court filing is seeking a court judgment that the Maroon Creek Club functions as a place of public accommodation and is subject to the city of Aspen’s anti-discrimination code.
Former Maroon Creek Club member Mark Ostrofsky’s lawsuit alleges the organization in August 2019 kicked out his family and him because they are Jewish, using selective enforcement of club rules as justification for the termination. They had been club members for six years.
“I want my name back, and I want a public apology,” Ostrofsky, who lives in Palm Desert, California, said in a telephone interview last week. “They made a mistake, and it’s not going to be easy to get an apology, but I want the world to see who these people are.”
An attorney for Maroon Creek Club did not respond to a message seeking comment last week, but the club has maintained it operates privately, is not bound to federal civil rights laws and doesn’t discriminate against its Jewish members. Additionally, “other similarly situated Jewish club members remain in the club,“ attorneys wrote in its answer to the lawsuit, which Ostrofsky filed in August 2020 in Pitkin County District Court.
The case has moved incrementally with no major rulings, but on Thursday, Aspen attorneys Matt Ferguson and Ryan Dougherty introduced a motion for partial summary judgment arguing the club is beholden to the city’s anti-discrimination code. A favorable ruling on Ostrofsky’s motion will “allow(s) the case to proceed more expeditiously,” Ferguson said in a text message.
The motion cited the city’s provision that states: “It shall be unlawful for a person engaged in providing services or accommodations to the public to, directly or indirectly, discriminate against any other person by refusing to allow the full and equal use and enjoyment of the goods, services, facilities, privileges, advantages, including accommodations and the terms and conditions under which the same are made available or to provide adverse, unlawful or unequal treatment to any person in connection therewith.”
Last week’s 27-page motion attempts to make the case that Maroon Creek Club, because it is a public accommodation — even though year-round inclusion demands an initial deposit of $200,000 and annual fees are the neighborhood of $30,000 — specifically violated city code by terminating the Ostrofksy membership.
As well, the motion contends the city code does not exempt private clubs from its anti-discrimination law. The motion said city code is the “only controlling law for purposes” of Ostrofky’s discrimination claim.
Maroon Creek Club fits the bill as a public accommodation, the motion argues, because it has a ground lease with the city “and is contractually obligated to engage in business to sell golf play to local Pitkin County residents. That alone puts it squarely within public accommodation status. MCC also routinely offers its services, facilities, products, and accommodations to the public for money or consideration all the time, e.g., private events and weddings.
“Aspen’s public school tennis teams use the club and court facilities regularly. MCC would ignore the indisputable facts that render it a place of public accommodation.”
Additionally, Aspen Municipal Golf Course pass-holders are entitled to one round per season at Maroon Creek Club; their fee is based on the public course’s rate. The club also has played host to numerous events where members were not invited, such as past fundraisers and The Weekend with Charlie Rose event held “on five to seven occasions over the last decade,” the motion said.
“The non-members attending the Rose Events include high-profile CEOs, political figures, and celebrities, such as Jennifer Lopez, Alex Rodriguez, Conan O’Brien, Gwyneth Paltrow, Nancy Pelosi, and Al Gore,” said the motion.
The motion also cites National Jewish Hospital fundraisers that were held at the club and were attended by nonmembers.
“MCC is not automatically exempt from the strictures the Civil Rights Act simply because it likes to think of itself as a ‘private club,’” the motion said. “It might be expensive — awfully expensive; it might think it is really exclusive — but it is not ‘private’ under the law and is certainly not exempt. Indeed, if the Civil Rights Act applied to this lawsuit — which it does not — MCC would never meet its burden of proving that it qualifies for the private club exemption.”
Ostrofsky’s claims include extreme and outrageous conduct and discriminatory practices in violation of Aspen municipal code against all of the defendants; intentional interference, defamation and slander, and civil conspiracy against two club managers; and unreasonable termination of membership against the club.
The Maroon Creek Club includes an 18-hole golf course that abuts both the Aspen Municipal Golf Course and Buttermilk ski area, a tennis complex, swimming pool, fitness center and other amenities.
“MCC, at best, is a social club where well-to-do folks can congregate for ‘entertainment’ — to play tennis, golf and bridge, and enjoy a ‘cold one’ a bit removed from Aspen’s hoi polloi across the creek at the municipal course,“ the motion said. ”Albeit a profitable business for six investors that under its lease with (city of Aspen) must allow those common folk in to play. Surely, the impacts of applying the Code’s discrimination provisions are justified by the minor impacts on MCC’s members.“
The motion contended the five investors who oversee the Maroon Creek Club’s interests are Andrew Hecht, Ronald Garfield, Jerry Hosier, Ernie Frywald and Stevie Gillman.