§ 86-35. Distinctly private entities.

(a)

The director shall maintain a registry of institutions, clubs or places of accommodation certified by him to be distinctly private in character. The provisions of this section shall not apply to any institution, club or accommodation included in the registry for so long as it is so included. Any certification that a club or institution is distinctly private in character shall be valid for a period of three years from the date of the initial certification, but may be renewed upon application of the registrant for successive additional periods of three years.

(b)

The director, upon application of any institution, club or accommodation, shall certify an applicant for inclusion in the registry if the applicant proves, by a preponderance of the evidence, that it is distinctly private in character. A club or institution is distinctly private in character if either:

(1)

a.

Its services, accommodations, advantages, facilities, or privileges are not offered or available to the public or to a wide sector of the public exclusive of a class or classes discrimination against whom is prohibited by this article;

b.

It is not an agent or creature of the state or its agencies or subdivisions, and its activities do not constitute state action;

c.

It does not advertise for or engage in general solicitation to attract potential customers, patrons, or members;

d.

It does not fulfill a vital community role affected with public interest;

e.

Its activities are not subsidized directly or indirectly by public funds, nor does it otherwise receive governmental support;

f.

It does not exist or operate for commercial or business purposes;

g.

It generally denies its services, accommodations, advantages, and privileges and participation in its activities, meetings, and social functions to all but members and their guests;

h.

Its membership is of moderate size, and it is not connected with a larger institution, club or accommodation that is a public accommodation;

i.

Its organizers had the intention of constituting a private institution, club, or accommodation;

j.

Its organizational structure has not been altered since passage of the Civil Rights Act of 1964 in an attempt to avoid the applicability of that act, or since the effective date of the ordinance from which this article was derived, in an effort to avoid the applicability of this article;

k.

Its members have a nexus of common interest;

l.

Its membership policies include an element of exclusiveness based on one or more criteria other than membership in a class against whom discrimination is prohibited by this article; and

m.

It does not offer or constitute facilities, sponsor activities, or create an environment where business deals are often made and personal contacts valuable for business purposes, employment, and professional advancement are formed; or

(2)

Its character as an institution, club, or association is such that, under the constitutional doctrines of freedom of association (including expressive association) and privacy prevailing in the law at the time of the hearing, the constitution of this state or of the United States requires that this section not be applied against it.

(c)

An application to be certified for inclusion in the registry shall be in writing on a form prepared by the director and shall include all information reasonably determined by the director to be necessary or useful to consideration of the application. Each application shall be signed by a duly authorized officer or agent of the applicant who shall attest by oath or affirmation to the truth of its contents.

(d)

Upon receipt of an application, the director shall assign it a date and time for public hearings which shall be not sooner than four weeks and not later than six weeks from the date of receipt of the application. Notice of the application and the hearing, in a standard form which shall be prescribed by the director, shall be published in the official journal by the applicant and at its expense at least three times so that the first publication shall be not more than 28 and not less than 21 days and so that the last publication shall be not more than seven and not less than two days prior to the hearing. Any interested person may appear at the hearing to support or oppose the application, subject to such reasonable regulations and time limits as the director, or his designee as presiding officer, may prescribe. The hearing shall be conducted in accordance with the provisions of the Administrative Procedures Act with respect to the rules of evidence.

(e)

Within seven days of the conclusion of the hearing, the director shall notify the applicant and any interested person who has requested such notice of his determination to grant or deny certification for inclusion in the registry. The decision of the director shall be in writing, shall state the reasons for his determination, and shall become effective as a certification seven days after it is assigned by the director.

(f)

On his own motion, or upon the written complaint of any interested person, the director may initiate proceedings for the removal of any institution, club or accommodation from the registry. The motion or complaint by which removal proceedings are commenced shall be in a verified writing and shall set forth facts sufficient to show that the respondent institution, club or accommodation is not distinctly private in character. The motion or complaint shall be signed by the complainant or a duly authorized agent of the complainant who shall attest by oath or affirmation to the truth of its contents.

(g)

Upon the receipt of filing in the office of the director of such a motion or complaint, the director shall assign it a date and time for public hearings which shall be not sooner than four weeks and not later than six weeks from the date of receipt of the complaint. Notice of the complaint and the hearing, in a standard form which shall be prescribed by the director, shall be published in the official journal by the complainant and at its expense at least three times so that the first publication shall be not more than 28 and not less than 21 days and so that the last publication shall be not more than seven and not less than two days prior to the hearing. Any interested person may appear at the hearing to support or oppose the complaint, subject to such reasonable regulations and time limits as the director, or his designee as presiding officer, may prescribe. The hearing shall be conducted in accordance with the provisions of the Administrative Procedures Act with respect to the rules of evidence. Within seven days of the conclusion of the hearing, the director shall notify the complainant, and any interested person who has requested such notice, of his determination to grant or deny continued certification for inclusion in the registry. The decision of the director shall be in writing, shall state the reasons for his determination, and shall become effective seven days after it is signed by the director. If a decision to deny continued certification becomes effective, the respondent shall be removed from the registry immediately.

(h)

An institution, club or accommodation may at any time apply or reapply to be certified for inclusion in the registry notwithstanding the fact that it may have been denied certification or been removed from the registry in the past. A motion or complaint seeking removal of a club or institution from the registry shall be denied without a hearing by the director if a motion or complaint initiated by the same person and setting forth the same or substantially similar facts has been denied within the past six months.

(M.C.S., Ord. No. 19,278, § 1, 6-17-99)