Judge declares Aspen country club a public accommodation, bound to anti-discrimination laws
Though a $250,000 initiation fee is required to gain membership into the exclusive Maroon Creek Club, where annual dues are $38,600 and there’s a waiting list to get in, a judge’s recent ruling deemed it a place of public accommodation subject to the city’s anti-discrimination laws.
The order from District Judge Denise Lynch means Marc Ostrofsky can proceed with his lawsuit claim against the golf and tennis club for allegedly violating the city’s anti-discrimination laws when it canceled his membership in August 2019. Ostrosksy, who is Jewish, has alleged the country club in part stripped him and his family of their membership over religious reasons.
“They are not allowed to discriminate as a public accommodation,” Ostrofsky said Tuesday. “Everyone must be treated equally. Now, that has ramifications in and of itself.”
Lynch’s order did not rule on the merits of Ostrosky’s discrimination claim against the club. Both sides have asked for a trial by jury, which was scheduled to begin in March but was postponed, according to court filings in November.
Defense lawyers in the case previously argued Ostrosky’s claims don’t have merit, and, as a private organization, the Maroon Creek Club is constitutionally protected to make its own membership decisions and isn’t subject to Aspen’s anti-discrimination laws.
“MCC is a private club, and a private club’s ability to determine its membership is protected by the First Amendment to the Constitution of the United States’ guarantee of the freedom of association,” said a June 2 filing by Maroon Creek Club lawyers.
Lynch saw it differently. The judge’s ruling said the club did not have constitutional protection as a private entity because it allows access to non-members, though on a limited basis.
Citing an agreement between the club and city, which owns some of the Maroon Creek Club property, dating back to 1993, Lynch’s ruling said the club has been “contractually obligated” with the city to make its golf course and facilities open to members of the public, including full-time students enrolled in school in Pitkin County, full-time county residents at least 60 years old, and employees who work in Pitkin County at least 30 hours a week. Non-members who are eligible pay a fee to play on a daily basis.
The public-access aspect of that near 30-year-old deal sufficiently showed the club’s membership selection practices are subject to Aspen’s anti-discrimination laws, said Lynch’s ruling, which was dated Sept. 20.
“It is undisputed that MCC became contractually obligated to provide golf facilities/accommodations to certain members of the public as a condition of its lease of public land from the City of Aspen, MCC,” Lynch’s ruling said.
As well, the lease agreement made no exceptions for a private club, and, if the city’s anti-discrimination laws “only applied to places that serve all members of the public, it would be rendered nonsensical,” the ruling said.
The Civil Rights Act of 1964 entitles all persons “to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation … without discrimination on the ground of race, color, religion, or national origin.” The act doesn’t apply to “a private club or other establishment not in fact open to the public.”
By Judge Lynch’s definition that it is a public accommodation, Maroon Creek Club also is subject to the Civil Rights Act.
A statement issued this week by Aspen lawyer David Lenyo of Garfield & Hecht PC said they believed Ostrofsky could not assert a claim under the city’s discrimination code because he was a private member when the club dismissed him.
“The Court’s narrow legal ruling is based on the Maroon Creek Club’s well-known contractual obligation under its lease with the City of Aspen to allow a limited number of Aspen residents to use the Maroon Creek Club Golf facilities up to two times a year and its voluntary willingness to allow the Aspen High School tennis team to practice and hold meets at the Club as a community benefit,” said the statement. “The Maroon Creek Club has never disputed that it allows a limited number of members of the public to periodically use its facilities like virtually every other private country club throughout the United States, often for charitable or educational events.
“The Maroon Creek Club opposed the motion because there is no allegation that any member of the public was discriminated against in connection with their limited use of the Maroon Creek Club golf or tennis facilities. Instead, the discrimination claim is limited to the allegation made by Mr. Ostrofsky that the Maroon Creek Club, as a constitutionally-protected private club, discriminated against him as a private club member. The Court’s narrow legal ruling will have no impact on the determination of whether the Maroon Creek Club discriminated against Mr. Ostrofsky.”
Maroon Creek Club lawyers also said Ostrofksy’s claim that he was discriminated against because he is Jewish is contradicted by the organization’s membership roster and ownership. “The undisputed evidence … suggests a large percentage of MCC’s (Maroon Creek Club’s) population is Jewish, and that several members of the LLC that owns MCC are Jewish,” said the June filing.
The ruling’s broader impact on the club’s lease agreement with the city is a different matter altogether. The city is not part of the lawsuit, which Ostrosky filed in July 2020 in Pitkin County District, claiming the club selectively enforced rules to throw him out, while the real reason was because he and his family are Jewish.
“I had received the order shortly after it was issued,” City Attorney Jim True said in an email this week. “My evaluation of the order was that this addresses an initial issue in a lengthy process with many issues left to resolve. Thus, I believe that it is too early to determine how this impacts the City.”
Maroon Creek Club lawyers argued in the June filing that the club has been allowed to determine who does and does not qualify for membership under the First Amendment, and its exclusive-club status gives members “the ability to socialize and interact with the other members in a congenial environment, away from the tourists who flood Aspen every summer, packing restaurants and public recreation facilities. Thus, the congeniality of the members is paramount, as it is the environment, not necessarily the facilities, that make MCC (Maroon Creek Club) a desirable one to join. The Court should therefore find that MCC meets the Constitutional requirements of a private club and its ability to determine its membership is protected by the First Amendment.”
Ostrosky’s suit names Maroon Creek Limited Liability Company, d/b/a Maroon Creek Club, Maroon Creek Investors LLC, and club employees Scott Erwin and David Chadbourne.
Ostrosky currently is being represented by Denver lawyers Jason Dunn and Joshua Weiss, who filed their entries of appearance in the case Nov. 30, according to court documents. Before then, he had been without legal representation ever since Ferguson Schindler Law Firm PC in Aspen withdrew in July.
“The narrow legal ruling will also have no effect on the continued operations of the Maroon Creek Club as a private club,” Lenyo’s statement said. “The Maroon Creek Club looks forward to successfully defending against Mr. Ostrofsky’s unsupported claims of discrimination either through a dispositive pretrial motion or at the jury trial.”
The Maroon Creek Club comprises a golf course that abuts both the Aspen Municipal Golf Course and Buttermilk ski area, a tennis complex, swimming pool, fitness center, and other amenities.
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