Legal Question in Business Law in California

I have a question about the applicability and protection of the Sherman Act for my golf instruction business (microenterprise). First, I am not a wealthy person, but I do have highly developed golf knowledge and skills, and I am an excellent golf instructor (one of the best). However, I have not been able to get my own golf instruction business off the ground, even though I am already licensed and operational. You see, I have NOWHERE to teach my students. This is because the city and county governments owning golf courses as well as private golf facilities owners in my neck of the woods (i.e. an area of 200 square miles in which I am in the center, within which area there are only 7 golf courses, 5 open to the general public, and 2 private country clubs, and several private practice-range-only facilities) refuse to let me use their facilities that I may teach my students golf there. I can understand the private owners doing this to me, but the city and county governments? However, the city and county have "leased" their facilities to a private company to manage the properties -- a scheme that actually violates other California law, and my rights to access and use the properties (which I will tell you about briefly at the end of this question). So I ask you, assuming that the golf courses of the city and county are genuinely "essential facilities" for my work (as per the "essential facilities doctrine"), how much or what interstate commerce must be alleged to state a Sherman Act violation? I allege that I will advertise to golfers in other states and outside of California, via the internet, golf magazine publications, even television (as on the golf channel), and travel agents, and by other media and means. More, I allege that I will talk to these golfers over the telephone (or their travel arrangers) while they are present in other states and outside of California (where I live and intend to work), and they will make payment for their lessons while in other states, drawing on bank accounts by paper checks written against accounts located in other states, or pay via electronic means against their accounts. I will also be helping these golfers get fitted properly with equipment, and will even be helping them make purchases of golf equipment, and this equipment is manufactured in other states and foreign nations and is generally something that is sold in interstate commerce. And my students (residents of other states) will be purchasing food and beverages and paying for rounds of golf and buying range (practice) balls due to the fact I have brought them to the local area via my solicitations and desire to be my students. (The students will also be staying in local hotel rooms while in the area.) My lessons are not inexpensive, and I seek to even teach in full-day-long sessions, even providing a "golf camp" for those who are serious about playing golf better. And I teach to all skill levels, including other golf professionals (many of whom misunderstand the mechanics of the modern golf swing, yet they are out there teaching golf anyway... but I digress). My understanding is (and correct me if I am wrong) that in order to state a Sherman Act violation the acts of those who deny me use of the "essential facilities" (anti-competitive conduct) must have 1) adversely affected the interstate commerce portion of my business (which I do claim), or 2) have a not-insubstantial effect on interstate commerce. The first situation is the one that seems most appropriate here -- do you agree? I will now tell you about state law in California that even says I have a right to give my golf lessons to my own students at the government-owned golf courses and facilities in question: First, there is case precedent that says I have a "fundamental right" to work in a "common occupation of the community." (Which case precedent is unique to California, and the right is not "fundamental" in other jurisdictions.) See Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, at 16-17 (1971); and Bautista v. Jones, 25 Cal.2d 746, at 749 (1944). And then there is Cal. Bus. and Prof. Code �17000 et seq. which reflects the sentiments of such case precedent as Sail'er Inn and Bautista, stating that it is unlawful to exclude anyone from a lawful trade, and even prohibits local governments from doing that (as in this case). And there is also Cal. Bus. and Prof. Code �16000 et seq. which makes "void" any contract that causes anyone to be excluded from a lawful profession -- where the contract here is the one between the city and county governments and their private "lessee" that grants this "lessee" a "tied-in" exclusive right to provide golf instruction at those properties that are otherwise rightly places where anyone can give golf lessons to their own students --- and so I ask does the "tie-in" also give rise to a cause of action under the Sherman Act? AND THE REASON I MENTION ALL THIS STATE LAW that gives me the right to be working on the properties, is because the local governments might claim the golf courses are not public forums, but are non-public forums. However, the local governments have allowed this private party the use of the properties to give golf lessons there, and so I have a right of "equal protection" under the law -- that is, if the government lets them, it must let me. However, this would not be true, I don't think, unless there was such state law that says I have a right to work in a common occupation of the community, and that it is unlawful even for a local government to exclude anyone from a lawful trade in California. And, I do know that I cannot sue the local governments for damages, but I just seek and injunction here. Though I would also sue the lessee which is a private company, for it is this private company that is enforcing the exclusion, threatening my removal from the golf courses upon seeing me giving lessons to anyone.

Well, that's the situation, what do you think? Is the "interstate commerce" portion of my business sufficiently "affected." Indeed, I will be getting customers from inside of California too, but that "interstate commerce" portion of my business -- it is "affected," right? (Again, my business is COMPLETELY shut-down. I cannot even run the business because I have no use of ANY essential facilities to even give a lesson to anyone.)


Asked on 10/21/09, 6:01 pm

1 Answer from Attorneys

Governments operating recreational or other quasi-commercial facilities have the right to issue exclusive leases and franchises to private contractors to operate commercial enterprises in connection with the government operation or on goverment owned land and facilities. These franchises are for a term of years and come up for renewal at certain intervals. You are as free as anyone else to bid on the franchise when it comes up again.

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Answered on 10/21/09, 6:22 pm


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