Ring v. Boca Ciega Yacht Club, Inc

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SAMANTHA RING,

Plaintiff,

v. Case No.: 8:19-cv-772-T-33JSS

BOCA CIEGA YACHT CLUB, INC.,

Defendant.

______________________________/

ORDER

This matter comes before the Court pursuant to Defendant

Boca Ciega Yacht Club, Inc.’s Motion to Dismiss the Second

Amended Complaint and Strike Jury Trial Demand (Doc. # 48),

filed on October 16, 2019. Plaintiff Samantha Ring filed a

response in opposition (Doc. # 53) on October 25, 2019. For

the reasons explained below, BCYC’s Motion is granted in part

and denied in part.

I. Background

A. Allegations of the Second Amended Complaint

According to the Second Amended Complaint, Ring is an

avid sailor and joined Boca Ciega Yacht Club (“BCYC”) as a

member in 2007. (Doc. # 47 at ¶ 6). Ring alleges that she is

“highly allergic” to bee stings and sunflower seeds and

suffers from severe anxiety with panic attacks. (Id. at ¶ 4).

So, in 2015, Ring acquired a dog named Piper to assist her

with her disabilities. (Id. at ¶¶ 7, 9-11). Ring alleges that

Piper is a service animal under the ADA. (Id. at ¶ 8).

In July 2018, Ring provided “medical documentation of

her disability-related need to be accompanied by Piper” to

BCYC Commodore Larry Brown. (Id. at ¶ 17). Yet, in December

2018, Ring alleges that she received a “written reprimand”

from BCYC for being in the clubhouse with Piper. (Id. at ¶

41). BCYC informed Ring that it was a private club and

requested that she cease bringing Piper to BCYC premises as

it was against club rules. (Id. at ¶ 20; Doc. # 47-3).

On January 2, 2019,1 Ring filed a signed and verified

Charge of Discrimination with the Pinellas County Office of

Human Rights (the “PCOHR”), alleging that BCYC had

discriminated against her on the basis of her disability by

failing to allow her service animal on BCYC’s premises. (Doc.

# 47 at ¶ 42; Doc. # 48-1).

Ring alleges that BCYC began to retaliate against her

for filing the complaint with PCOHR, including fining her for

bringing Piper to the clubhouse, “[t]argeting” Ring for

1 The Charge of Discrimination is date stamped January 2,

2018, but Ring signed the document on December 28, 2018, and

so it appears that the agency’s staff inadvertently forgot to

switch the stamp to reflect the new year.

emergency suspension of her membership, suspending Ring’s

membership “for reasons that were wholly pretextual,” and

lobbying other BCYC members to vote for Ring’s expulsion.

(Doc. # 47 at ¶ 44). BCYC expelled Ring in April 2019. (Id.

at ¶ 44(i); Doc. # 47-6; Doc. # 48 at 2).

B. Administrative History

As previously noted, Ring filed a formal Charge of

Discrimination against BCYC with the PCOHR on January 2, 2019,

alleging that BCYC discriminated against her on the basis of

her disability by refusing to allow her service animal into

the clubhouse. (Doc. # 48-1). Ring amended her administrative

complaint in April 2019 to add charges of retaliation. (Doc.

# 47 at ¶ 83; Doc. # 47-7 at 1).

According to an investigative report dated May 29, 2019,

the PCOHR investigated Ring’s claims of discrimination

against BCYC (the “Investigative Report”). (Doc. # 47-7). At

the end of the Investigative Report, under “Conclusions,” the

report’s author wrote that, “based upon the available

evidence, there is reasonable cause to believe that an

unlawful act of discrimination based on disability . . . and

retaliation has occurred.” (Id. at 15).

On June 5, 2019, the PCOHR issued a letter of intent to

BCYC’s counsel, explaining that the agency had completed its

review of the final investigative report in Ring’s complaint.

(Doc. # 27 at 70).2 The letter stated that “a determination

will be issued that there is reasonable cause to believe that

unlawful discrimination has occurred. Therefore, this letter

is an offer of a final opportunity for you to engage in

conciliation to resolve this matter.” (Id.).

The letter warned that if conciliation efforts were not

successful, “a charge of discrimination will be formally

entered and a determination of Reasonable Cause will be

issued.” (Id.). The PCOHR would then forward the

investigative file to the Florida Division of Administrative

Hearings with a request to schedule an administrative

hearing. (Id.).

It appears that the parties did attempt a conciliation

on August 2, 2019, that was not successful. (Doc. # 47 at ¶

87; Doc. # 38-1). On August 7, 2019, Ring’s administrative

complaint went before the Florida Division of Administrative

Hearings (the “DOAH”). (Doc. # 42-1). On August 20, 2019,

Ring filed a Notice of Voluntary Dismissal of her case before

the DOAH. (Doc. # 42-2). Accordingly, the administrative law

2 Ring filed her Amended Complaint (Doc. # 27) as one document,

including all attached exhibits. Accordingly, this Order

provides citations to the overall page number within the

omnibus document.

judge closed Ring’s case before the DOAH on August 23, 2019,

and “relinquished” jurisdiction to the PCOHR. (Doc. # 42-

3).

C. Procedural History

Ring initiated the instant action in federal court on

March 29, 2019, asserting claims against BCYC for failure to

make reasonable modifications and retaliation under Title III

of the Americans with Disabilities Act (the ADA). (Doc. # 1).

On April 19, 2019, BCYC answered the original complaint.

(Doc. # 12).

On June 25, 2019, Ring filed an Amended Complaint, again

raising a claim under Title III of the ADA for failure to

make reasonable modifications (Count I) and a claim for

retaliation under the ADA (Count II), both against BCYC. (Doc.

# 27 at 13-18). Ring also added a claim against the City of

Gulfport for allegedly violating Title II of the ADA (Count

III). (Id. at 19-24). And she added a claim against BCYC for

discrimination in violation of the Florida Civil Rights Act

(“FCRA”) (Count IV). (Id. at 24-25).

On July 9, 2019, BCYC filed a motion to dismiss Count IV

of the Amended Complaint and strike Ring’s demand for a jury

trial. (Doc. # 28). On July 23, 2019, Ring responded to the

motion and filed a notice of voluntary dismissal of her claims

against the City of Gulfport, Count IV, and her demand for a

jury trial. (Doc. ## 29, 30).

On July 24, 2019, this Court dismissed the claims against

the City of Gulfport without prejudice and dismissed Count IV

and Ring’s jury-trial demand without prejudice. (Doc. # 31).

The Court then denied BCYC’s motion to dismiss as moot. (Doc.

# 32).

On August 7, 2019, BCYC filed a motion for

reconsideration of this Court’s July 24, 2019, orders, which

this Court granted in part. (Doc. ## 33, 46). Recognizing

that Ring had used the incorrect procedural mechanism to amend

her complaint, the Court set aside its July 24, 2019, orders

but, given that BCYC did not file a response in opposition to

Ring’s motion to file a Second Amended Complaint, granted

Ring leave to amend her complaint. (Doc. # 46).

Ring filed her Second Amended Complaint on October 8,

2019. (Doc. # 47). Based on the allegations described above,

Ring now brings four claims against BCYC: failure to make

reasonable modifications under the ADA (Count I); retaliation

in violation of the ADA (Count II); discrimination in

violation of the FCRA (Count III); and “negligence per se”

for violation of Fla. Stat. § 413.08 (Count IV). (Id. at 7-

14). Ring seeks declaratory and injunctive relief and seeks

damages with respect to Counts III and IV. (Id. at 9-10, 13,

14, 15-16). She has also demanded a jury trial. (Id. at 17).

On October 16, 2019, BCYC moved to dismiss the Second

Amended Complaint in its entirety. (Doc. # 48). On October

25, 2019, Ring responded in opposition. (Doc. # 53). This

Court heard oral argument on the Motion on October 28, 2019.

(Doc. # 54). The Motion is now ripe for review.

II. Legal Standard

A. Rule 12(b)(1)

Federal courts have limited jurisdiction and therefore

only possess power authorized by Article III of the United

States Constitution and statutes enacted by Congress pursuant

thereto. See Bender v. Wiliamsport Area Sch. Dist., 475 U.S.

534, 541 (1986). Thus, federal courts cannot consider claims

for which they lack subject-matter jurisdiction. Arbaugh v.

Y&H Corp., 546 U.S. 500, 514 (2006).

Federal Rule of Civil Procedure 12(b)(1) provides for a

party, by motion, to assert the defense of “lack of subject-

matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). This defense

may be raised at any time. See Grupo Dataflux v. Atlas Global

Grp., L.P., 541 U.S. 567, 571 (2004). The plaintiff bears the

burden of establishing that subject-matter jurisdiction

exists. Underwriters at Lloyd’s, London v. Osting-Schwinn,

613 F.3d 1079, 1085 (11th Cir. 2010). Where, as here, a

defendant raises a facial attack to the existence of subject-

matter jurisdiction, the issue becomes whether the complaint

sufficiently alleges a basis of subject-matter jurisdiction.

McElmurray v. Consol. Gov’t of Augusta-Richmond Cty., 501

F.3d 1244, 1251 (11th Cir. 2007).

B. Rule 12(b)(6)

When considering a motion to dismiss brought under Rule

12(b)(6), this Court accepts as true all the allegations in

the complaint and construes them in the light most favorable

to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d

1250, 1262 (11th Cir. 2004). Further, this Court favors the

plaintiff with all reasonable inferences from the allegations

in the complaint. Stephens v. Dep’t of Health & Human Servs.,

901 F.2d 1571, 1573 (11th Cir. 1990). However, the Supreme

Court explains that:

While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations omitted). In addition, courts are not “bound to

accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

Furthermore, “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III. Analysis

In its Motion, BCYC raises three arguments for why the

Second Amended Complaint should be dismissed. First, BCYC

argues that Ring has no standing to assert claims for

injunctive relief under Title III of the ADA. (Doc. # 48 at

1, 5-8). Second, BCYC claims that Ring’s FCRA claim is due to

be dismissed with prejudice because (1) Ring has failed to

exhaust her administrative remedies under that statute, and

(2) BCYC does not qualify as a place of public accommodation

under the FCRA. (Id. at 1, 8-16). Relatedly, BCYC maintains

that Fla. Stat. § 413.08 does not expand the definition of

“public accommodation” into the “narrow confines” of the

FCRA. (Id. at 16-17, 20-21). Finally, BCYC submits that Fla.

Stat. § 413.08 does not provide a private right of action.

(Id. at 1, 17-20).

A. Standing

The question of standing is an “essential and unchanging

part of the case-or-controversy requirement of Article III.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Plaintiffs must satisfy three requirements to have standing

under Article III: (1) “injury-in-fact”; (2) “a causal

connection between the asserted injury-in-fact and the

challenged action of the defendant”; and (3) “that the injury

will be redressed by a favorable decision.” Shotz v. Cates,

256 F.3d 1077, 1081 (11th Cir. 2001) (internal quotation marks

omitted) (citing Lujan, 504 U.S. at 560–61).

The “injury-in-fact” demanded by Article III requires an

additional showing when injunctive relief is sought. In

addition to past injury, a plaintiff seeking injunctive

relief “must show a sufficient likelihood that he will be

affected by the allegedly unlawful conduct in the future.”

Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262,

1283 (11th Cir. 2001). Because injunctions regulate future

conduct, a party has standing to seek injunctive relief only

if the party shows “a real and immediate — as opposed to a

merely conjectural or hypothetical — threat of future

injury.” Shotz, 256 F.3d at 1081; Wooden, 247 F.3d at 1284

(citing City of Los Angeles v. Lyons, 461 U.S. 95, 102

(1983)).

In this case, Ring seeks injunctive relief, which is the

only form of relief available to plaintiffs suing under Title

III of the ADA. (Doc. # 47 at 9-10, 15-16); Houston v. Marod

Supermarkets, Inc., 733 F.3d 1323, 1329 (11th Cir. 2013).

Therefore, to have standing, Ring must show past injury and

a real and immediate threat of future injury.

The Eleventh Circuit has held that, when determining

whether a plaintiff has standing to sue for prospective

injunctive or declaratory relief, “Article III standing must

be determined as of the time at which the plaintiff’s

complaint is filed.” Focus on the Family v. Pinellas Suncoast

Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003); see also

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.

167, 180 (2000) (“[W]e have an obligation to assure ourselves

that [plaintiff] had Article III standing at the outset of

the litigation.”). What’s more, when an amended complaint is

filed, “it is necessary that [plaintiff] possessed Article

III standing on this later date” also, but where the original

and the amended complaint contain identical allegations, the

amended complaint may relate back to the date of the original

complaint for standing purposes. Focus on the Family, 344

F.3d at 1275-76.

Here, on March 29, 2019 – the date that Ring commenced

this lawsuit – she was still a member of BCYC. On that date,

she could have arrived at the club as a member and, because

Ring had been previously warned that Piper was not welcome on

the BCYC premises, she and/or her service dog would likely

have been denied access to the BCYC clubhouse. See (Doc. # 47

at ¶¶ 14-16, 20, 41, 44(b), 44(e), 44(h)). Indeed, Ring

alleged in her original Complaint that BCYC knew that Ring

wished to have Piper accompany her on visits to the BCYC

clubhouse and that BCYC “steadfastly refuses” to allow Piper

to accompany her. (Doc. # 1 at ¶¶ 13-14). Thus, at the time

that Ring’s original Complaint was filed, there was a real

and immediate threat of future injury. See Shotz, 256 F.3d at

1081; Focus on the Family, 344 F.3d at 1275. Ring clearly had

standing to pursue injunctive relief under the ADA at the

time she filed her original Complaint.

However, Ring was expelled from BCYC membership in April

2019. (Doc. # 47 at ¶ 44(i); Doc. # 47-6; Doc. # 48 at 2).

And she filed her Second Amended Complaint in October 2019,

well after she had been expelled from membership. The question

then becomes whether the allegations in Ring’s Second Amended

Complaint relate back to the March 29, 2019, filing of her

original Complaint. See Focus on the Family, 344 F.3d at 1275-

76.

The touchstone for determining whether Ring’s claims

relate back is Federal Rule of Civil Procedure 15(c). That

rule provides that an amendment to a pleading will relate

back to the date of the original pleading when, among other

things, “the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out - or

attempted to be set out - in the original pleading.” Fed. R.

Civ. P. 15(c)(1)(B).

With respect to Ring’s ADA claims, the Court has

carefully compared the two pleadings, and while the

allegations in her original Complaint are not identical to

those in the Second Amended Complaint, they are very similar

and the claims are completely unchanged. Compare (Doc. # 1)

with (Doc. # 47). Under these circumstances, the Court

concludes that the requirements of Rule 15(c)(1)(B) are

satisfied. See Arce v. Garcia, 434 F.3d 1254, 1264 n.24 (11th

Cir. 2006) (finding claims in second amended complaint

related back where they “were closely related, if not

identical, to the claims asserted in [the] initial

complaint”).

The allegations are sufficiently similar to allow Ring’s

Second Amended Complaint to “relate back” to the date of her

original Complaint, despite her intervening expulsion from

BCYC. See Focus on the Family, 344 F.3d at 1275-76 (where

plaintiff initially alleged that it would suffer First

Amendment injury because it was not permitted to advertise

for a conference to be held on a certain future date, and the

amended complaint making the same allegation was not filed

until after the date of the conference had past, holding that

an amended complaint “plainly relate[d] back” under Rule

15(c)); see also Harvard v. Inch, No. 4:19-cv-212-MW/CAS,

2019 WL 5587314, at *5 (N.D. Fla. Oct. 24, 2019) (determining,

in case where inmates sought injunctive relief, that inmates

had standing when they filed their original complaint because

they were still in isolation, and the fact that amended

complaint pleaded that they had since been released from

isolation did not “strip them of standing they would otherwise

have at the time of filing suit” where the challenged policies

and practices had not changed); Eternal Word Television

Network, Inc. v. Sebelius, 935 F. Supp. 2d 1196, 1214-15,

1214 n.16 (N.D. Ala. 2013) (holding that the amended complaint

would relate back to the date of the original complaint for

standing purposes where the amended pleading added just a few

paragraphs, but the claim was essentially the same); Mortland

v. Northlake Mall, LLC, No. 1:13-CV-1151-TWT, 2013 WL

6881694, at *3 n.3 (N.D. Ga. Dec. 31, 2013) (in ADA case

seeking injunctive relief, holding that even where injunctive

relief “appear[ed] futile” at that time, plaintiff had

standing if an injunction could have provided relief at the

time he filed his complaint).

Under these circumstances, the question becomes one of

mootness, not standing. See Friends of the Earth, 528 U.S. at

189 (describing mootness as “the doctrine of standing set in

a time frame: The requisite personal interest that must exist

at the commencement of the litigation (standing) must

continue throughout its existence (mootness)”) (internal

quotation marks omitted); Johnson v. Bd. of Regents of the

Univ. of Ga., 263 F.3d 1234, 1267 (11th Cir. 2001) (“[A]

party’s standing to sue is generally measured at the time of

the complaint, with the effect of subsequent events generally

analyzed under mootness principles.”).

“[A] federal court has no authority ‘to give opinions

upon moot questions or abstract propositions, or to declare

principles or rules of law which cannot affect the matter in

issue in the case before it.’” United States v. Fla. Azalea

Specialists, 19 F.3d 620, 622 (11th Cir. 1994). Thus, “if an

event occurs while a case is pending . . . that makes it

impossible for the court to grant any effectual relief

whatever to a prevailing party, the [case] must be dismissed.”

Church of Scientology of Cal. v. United States, 506 U.S. 9,

12 (1992) (internal quotations and citation omitted). A

defendant has a heavy burden in seeking to have a case

dismissed as moot – it must show that the Court cannot grant

“any effectual relief” whatsoever, even partial relief, to

the plaintiff. See Calderon v. Moore, 518 U.S. 149, 150

(1996).

BCYC cannot make this showing. As the parties agreed at

the hearing on this Motion, this Court could eventually grant

Ring many forms of injunctive relief, including reinstatement

to membership at BCYC. See (Doc. # 47 at 9-10, 15-16) (seeking

injunctive relief in the form of an order “placing Ring in

the position she would have been in had there been no

violation of her rights” and a preliminary injunction

ordering BCYC to “immediate[ly] [reactivate] Ring’s

membership in BCYC . . . and [grant her] unfettered access to

all parts of BCYC’s premises”).

For the foregoing reasons, Ring has standing to pursue

her ADA claims, and her claims are not moot.

B. Failure to exhaust administrative remedies under

the Florida Civil Rights Act

The general purpose of the FCRA is to secure for all

people within the state of Florida freedom from

discrimination based on numerous factors, including

“handicap.” Fla. Stat. § 760.01. The Florida Legislature has

directed that the statute be “liberally construed to further

the general purposes” of the law. Id. The FCRA also created

the Florida Commission on Human Relations (the “FCHR”), which

is charged with, among other things, promoting fair treatment

and equal opportunity for all persons and endeavoring to

eradicate discrimination. Id. §§ 760.03, 760.05.

The FCRA provides that: “Any violation of any Florida

statute making unlawful discrimination because of . . .

handicap . . . in the areas of education, employment, housing,

or public accommodations gives rise to a cause of action for

all relief and damages described in s. 760.11(5), unless

greater damages are expressly provided for.” Id. § 760.07.

The FCRA further provides that “[a]ll persons are entitled to

the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, and accommodations of any

place of public accommodation without discrimination or

segregation on the ground of race, color, national origin,

sex, pregnancy, handicap, familial status, or religion.” Id.

§ 760.08.

A plaintiff’s exhaustion of her administrative remedies

is a jurisdictional prerequisite to filing an action under

the FCRA. Jones v. Bank of Am., 985 F. Supp. 2d 1320, 1324–

25 (M.D. Fla. 2013). To exhaust administrative remedies under

the FCRA, a plaintiff must satisfy the requirements of Fla.

Stat. § 760.11. Id. at 1325.

Section 760.11 sets forth the procedure for obtaining

administrative and civil remedies. Under the FCRA, a person

who believes they have been discriminated against in

violation of the statute can file a complaint with the FCHR

within 365 days of the alleged violation. Id. § 760.11(1).

The law also provides that, “[i]n lieu of filing the complaint

with the [FCHR], a complaint under this section may be filed

with the federal Equal Employment Opportunity Commission or

with any unit of government of the state which is a fair-

employment-practice agency[.]” Id. If there is a date stamp

on the face of the complaint, that is treated as the date of

filing. Id. “The date the complaint is filed with the

commission for purposes of this section is the earliest date

of filing with the Equal Employment Opportunity Commission,

the fair-employment-practice agency, or the commission.” Id.

The statute contemplates that the FCHR will then either

undertake an investigation of the complaint’s charges itself

or will refer the investigation to another agency. See Id.

§ 760.11(2), (3).

The statute provides that, after an investigation has

been conducted, one of three things will happen:

(1) The FCHR determines that there is reasonable cause

to believe that a discriminatory practice has

occurred in violation of law, in which case the

aggrieved party may either bring a civil action in

court or request an administrative hearing;

(2) The FCHR determines there is no reasonable cause to

support the complaint, and dismisses it. The

aggrieved party can then request an administrative

hearing as to this determination; or

(3) “In the event that the commission fails to

conciliate or determine whether there is reasonable

cause on any complaint under this section within

180 days of the filing of the complaint, an

aggrieved person may proceed . . . as if the [FCHR]

determined that there was reasonable cause.”

Id. § 760.11(3), (4), (7), (8).

The FCRA also discusses what happens when a civil action

is brought for violation of its provisions. Courts may issue

injunctions and orders providing affirmative relief and may

also award compensatory damages, punitive damages, and

attorneys’ fees. Id. § 760.11(5). Complainants are entitled

to a trial by jury when they seek compensatory or punitive

damages. Id.

With this understanding of the FCRA in mind, the Court

now addresses BCYC’s arguments. First, BCYC principally

argues that “[a] plain reading of the FCRA strongly supports

that the [FCHR] is the only agency ultimately tasked with

entering a determination on the Charge for the purposes of

ensuring that a claimant’s administrative remedies are

exhausted.” (Doc. # 48 at 10). Thus, it claims, the outcome

of any FCRA administrative investigation is “dictated by the

actions or inaction of the [FCHR], not the actions or inaction

of any other agency qualified to investigate a Charge,

including the PCOHR.” (Id.). Relying on certain emails

showing that Ring never filed a Charge of Discrimination

directly with the FCHR, and that agency accordingly never

entered a determination on Ring’s Charge, BCYC submits that

she has failed to administratively exhaust her remedies. (Id.

at 11).

Second, BCYC argues that if Ring had waited the full 180

days contemplated by the statute before filing suit without

a determination by the FCHR, see Section 760.11(8), she would

have been entitled to file her lawsuit. (Id. at 10-11). It

argues that that deadline ran on July 1, 2019, and Ring filed

her amended complaint on June 25, 2019, just six days shy of

the deadline. (Id. at 11).

Third, BCYC claims that the FCRA does not offer Ring

“another bite at the apple” because, once she filed this

lawsuit, the FCHR was divested of jurisdiction over her claim,

her administrative remedies were never exhausted, and her

claims can never accrue. (Id. at 11-12). Finally, BCYC points

out Ring’s voluntary dismissal of her case before the DOAH,

writing that “[a]bsent a ruling on the merits by DOAH, the

PCOHR’s findings do not and cannot constitute a final agency

decision, as BCYC was deprived of its due process right to

challenge the agency’s findings.” (Id. at 11). Thus,

according to BCYC, Ring’s claims “never accrued” and are due

to be dismissed with prejudice. (Id. at 8).

In her response, Ring argues that the FCRA allowed her

to file an administrative complaint with the PCOHR “in lieu

of” filing her complaint with the FCHR, and that she has

exhausted her administrative remedies because the PCOHR made

a finding in her favor. (Doc. # 53 at 10-11). Taking another

tack, Ring argues that “as a matter of law Ring’s only

condition precedent to bringing a FCRA claim was that she

filed an administrative complaint and gave the investigating

agency 180 days to do its job.” (Id. at 12).

The Court is not persuaded by BCYC’s first argument that

a “plain reading” of the statute demonstrates that “the [FCHR]

is the only agency ultimately tasked with entering a

determination on the Charge” for purposes of administrative

exhaustion and that the outcome of any FCRA claim is “dictated

by the actions or inaction of the Committee.” Rather, a plain

reading of Fla. Stat. § 760.11 demonstrates that, once a

complainant files a charge with either the FCHR, the Equal

Employment Opportunity Commission (“EEOC”), or a fair-

employment-practice agency, the Commission may then refer

such complaint to another state agency for an investigation.

See Fla. Stat. § 760.11(1), (2). At the conclusion of that

investigation, the matter will be referred back to the FCHR

for the Commission to make a determination on the charge.

Id. § 760.11(2)-(4).

But that is not what happened here. The parties agree

that Ring filed her administrative complaint only with the

local fair-employment-practice agency, the PCOHR. This

undisputed fact also serves to undermine BCYC’s second

argument — that Ring’s June 2019 filing of her Amended

Complaint was fatally premature because she failed to wait

180 days between filing her administrative complaint and

failing to receive any determination from the FCHR. It is

illogical to expect that Ring would have received any

determination from the FCHR when she never filed a complaint

with that agency, as was her prerogative under the FCRA.

Second, Ring did not have to wait for agency inaction because

an agency had acted – by the time she filed her Amended

Complaint in June 2019, she had the PCOHR’s finding of

reasonable cause in hand.

Ring’s decision to file only with PCOHR does lead,

however, to a perplexing problem. While courts have

recognized the existence of a work-share agreement between

the FCHR and the EEOC which effectively treats a complaint

filed with the EEOC as dual-filed with the FCHR, there is no

evidence before the Court of a similar work-share agreement

between the PCOHR and the FCHR. See, e.g., Giakoumakis v.

Maronda Homes, Inc., of Florida, No. 5:08-cv-487-Oc-10GRJ,

2010 WL 557750, at *1 (M.D. Fla. Feb. 12, 2010); Mason v. K

Mart Corp., 1 F. Supp. 2d 1333, 1336 (M.D. Fla. 1998).

Section 760.11 allows complainants to file a complaint

with a fair-employment-practice agency “[i]n lieu of” filing

such a complaint with the FCHR, but the remainder of the

statute describes only how procedures before the FCHR

progress. See Fla. Stat. § 760.11. It provides no direction

as to how a complainant filing before only a local agency may

properly exhaust her administrative remedies. The parties do

not point to, nor could this Court find, any cases describing

the correct procedures for administrative exhaustion when a

complainant files only with a local agency.

The Florida Supreme Court, in interpreting the FCRA, has

stated that courts should be guided “by the stated statutory

purpose of liberally construing the FCRA in favor of a remedy

for those who are victims of discrimination, and the companion

principle that requires [courts] to narrowly construe

statutory provisions that restrict access to the courts.”

Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So. 2d

891, 897 (Fla. 2002). In Woodham, the Florida Supreme Court

was tasked with determining whether a finding from the EEOC

that it was “unable to conclude that the information obtained

establishes” a statutory violation operated as a finding of

“no reasonable cause” under the FCRA, Fla. Stat. § 760.11(7).

Id. at 89-95; see also Fla. Stat. § 760.11(7) (“If the

commission determines that there is not reasonable cause to

believe that a violation of the [FCRA] has occurred, the

commission shall dismiss the complaint [and the aggrieved

person may then request an administrative hearing].”).

To settle this issue, the Court focused on the

Legislature’s requirement in Section 760.01(3) that the

protections of the FCRA are to be “liberally construed to

further the general purposes stated in this section.”

Woodham, 829 So. 2d at 894. The Florida Supreme Court reasoned

that such construction is based on the remedial purposes of

the FCRA and requires a “specific finding of lack of

reasonable cause before an individual is stripped of her right

of access to the courts for redress against discrimination.”

Id. at 894, 896 (citing Cisko v. Phoenix Med. Prods., Inc.,

797 So. 2d 11, 13 (Fla. 2d DCA 2001) (internal quotation marks

omitted)). Under this public policy, the Court stressed that

“because [Section] 760.11(7) purports to abridge an

individual’s right to access to the courts, that section must

be narrowly construed in a manner that favors access.”

Woodham, 829 So. 2d at 897. The Florida Supreme Court

concluded that the language of Section 760.11(7) requires “a

specific determination ‘that there is not reasonable cause’

to believe a violation occurred.” Id.

In her Second Amended Complaint, Ring alleges that on

January 2, 2019, she filed an administrative complaint

against BCYC with the PCOHR, which the parties agree is a

fair-employment-practice agency for purposes of the FCRA.

(Doc. # 47 at ¶¶ 83-84; Doc. # 48 at 9). On May 29, 2019, the

PCOHR issued an Investigative Report containing a finding of

reasonable cause in her favor.3 (Doc. # 47 at ¶ 86; Doc. #

47-7). Ring alleges that “[a]ll conditions precedent to this

lawsuit have occurred or been performed.” (Id. at ¶ 46).

3 The parties agreed at the hearing that there is nothing in

the record demonstrating that PCOHR ever issued another

document that was a formal finding of reasonable cause.

This case presents a close call on the issue of

exhaustion of administrative remedies. But in the absence of

more explicit guidance from the statute or case law, the Court

is guided by the Florida Supreme Court’s directive that courts

should be guided “by the stated statutory purpose of liberally

construing the FCRA in favor of a remedy for those who are

victims of discrimination, and the companion principle that

requires [courts] to narrowly construe statutory provisions

that restrict access to the courts.” Woodham, 829 So. 2d at

897.

Here, Ring received a reasonable-cause determination in

her favor after she filed an administrative complaint with a

local fair-employment-practice agency, which filing is

acceptable under the FCRA. Fla. Stat. § 760.11(1). Under these

circumstances, a finding that the courthouse doors are closed

to Ring would run counter to the public policy purposes

underpinning the FCRA. See Woodham, 829 So. 2d at 896

(agreeing with a state court case requiring a “specific

finding of lack of reasonable cause before an individual is

stripped of her right of access to the courts for redress

against discrimination”). Thus, under a liberal construction

of the FCRA, the Court is persuaded that the PCOHR acted on

behalf of the FCHR in issuing its May 29, 2019, reasonable-

cause determination in Ring’s favor. A similar reasonable-

cause determination by the FCHR would have automatically

given Ring the right to bring a civil suit under the FCRA.

Fla. Stat. § 760.11(4).

And while BCYC emphasizes that Ring voluntarily

dismissed her action before the DOAH, despite such hearing

being part of the administrative process with the PCOHR, the

Court is unpersuaded that the dismissal of the DOAH hearing

deprives the Court of jurisdiction. Notably, while the PCOHR

automatically refers complaints to the DOAH, the FCRA does

not require a complainant who has received a favorable

reasonable cause determination to go through an

administrative hearing before bringing a civil action. The

Court will not impose that requirement on Ring now, in the

absence of clear statutory or other legal authority.

For these reasons, Ring has complied with the

requirements of Section 760.11 and exhausted her

administrative remedies under the FCRA.4

4 In making this determination, the Court considered all of

the record documents referenced in this Order. Generally, if

matters outside the pleadings are presented as part of a

motion to dismiss under Rule 12(b)(6), the motion must be

treated as one for summary judgment under Rule 56. Fed. R.

Civ. P. 12(d). However, the Court properly relied on these

documents in considering this Motion to Dismiss for two

reasons. First, exhaustion of administrative remedies is a

C. Whether BCYC is a place of “public accommodation”

within the meaning of the FCRA

BCYC also argues that the FCRA claim is due to be

dismissed because BCYC is not a place of “public

accommodation,” and as such falls outside the reach of the

FCRA. (Doc. # 48 at 12-16).

The FCRA provides that: “Any violation of any Florida

statute making unlawful discrimination because of . . .

handicap . . . in the area[] of . . . public accommodations

gives rise to a cause of action for all relief and damages

described in s. 760.11(5), unless greater damages are

expressly provided for.” Fla. Stat. § 760.07.

The statute defines “public accommodations” as:

places of public accommodation, lodgings,

facilities principally engaged in selling food for

consumption on the premises, gasoline stations,

places of exhibition or entertainment, and other

covered establishments. Each of the following

establishments which serves the public is a place

jurisdictional prerequisite, and courts may rely on extrinsic

documents to determine whether they have subject-matter

jurisdiction. See Bryant v. Rich, 530 F.3d 1368, 1376 (11th

Cir. 2008) (courts may look beyond the pleadings when

addressing motion to dismiss for failure to exhaust

remedies). Second, consideration of these documents was

central to Ring’s FCRA claim. See SFM Holdings, Ltd. v. Banc

of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010) (“In

ruling upon a motion to dismiss, the district court may

consider an extrinsic document if it is (1) central to the

plaintiff’s claim, and (2) its authenticity is not

challenged.”).

of public accommodation within the meaning of this

section:

(a) Any inn, hotel, motel, or other establishment

which provides lodging to transient guests,

other than an establishment located within a

building which contains not more than four

rooms for rent or hire and which is actually

occupied by the proprietor of such

establishment as his or her residence.

(b) Any restaurant, cafeteria, lunchroom, lunch

counter, soda fountain, or other facility

principally engaged in selling food for

consumption on the premises, including, but

not limited to, any such facility located on

the premises of any retail establishment, or

any gasoline station.

(c) Any motion picture theater, theater, concert

hall, sports arena, stadium, or other place of

exhibition or entertainment.

(d) Any establishment which is physically located

within the premises of any establishment

otherwise covered by this subsection, or

within the premises of which is physically

located any such covered establishment, and

which holds itself out as serving patrons of

such covered establishment.

Fla. Stat. § 760.02(11). The statute further provides that:

The term “public accommodations” does not include

lodge halls or other similar facilities of private

organizations which are made available for public

use occasionally or periodically.

Fla. Stat. § 760.07.

In her Second Amended Complaint, Ring alleges that BCYC

is a place of public accommodation because the City of

Gulfport owns the land on which BCYC sits, BCYC is open to

the public for “numerous events” throughout the year, non-

members are “regularly permitted access,” and BCYC is not

selective in allowing new members. (Doc. # 47 at ¶¶ 13, 21-

40, 72-73).

For its part, BCYC argues that if the Florida Legislature

had meant to include marinas or private sailing clubs within

the purview of the statute, they would have done so. (Doc. #

48 at 13-14). BCYC disputes that just because it sells food

and drink to members and offers some recreation and

entertainment to its members, it is not like a restaurant,

cafeteria, or theater. (Id.). BCYC admits that the phrase

“private organizations,” as used in Section 760.07, is not

defined by the FCRA and there are no reported Florida cases

discussing the “private organizations” exception, but it

argues that BCYC clearly qualifies as such a private

organization under the plain meaning of the term. (Id. at

15).

Taking the factual allegations alleged in Ring’s Second

Amended Complaint in the light most favorable to Ring, the

Second Amended Complaint plausibly alleges that BCYC falls

within the definition of a “public accommodation.”5 To the

extent BCYC raises factual arguments to the contrary, such

factual disputes are better resolved on summary judgment. See

Cohan v. Marco Island Marina Ass’n, Inc., 56 F. Supp. 3d 1254,

1257 (M.D. Fla. 2014) (determining that issue of whether

marina qualified for ADA exemption as a private, members-only

club could not be resolved at motion to dismiss phase).

D. Ring’s Cause of Action under Fla. Stat. § 413.08

Ring seeks to bring a claim for “negligence per se” for

violation of Fla. Stat. § 413.08. (Doc. # 47 at 13-14). That

statute provides in relevant part:

An individual with a disability is entitled to full

and equal accommodations, advantages, facilities,

and privileges in all public accommodations. A

public accommodation must modify its policies,

practices, and procedures to permit use of a

service animal by an individual with a disability.

. . .

An individual with a disability has the right to be

accompanied by a service animal in all areas of a

public accommodation that the public or customers

are normally permitted to occupy.

5 The Eleventh Circuit has held that parties “may not import

[Section] 413.08’s broader definition of ‘public

accommodation’ into the FCRA.” See Sheely v. MRI Radiology

Network, P.A., 505 F.3d 1173, 1205 (11th Cir. 2007)

(explaining that Section 760.02 of the FRCA “expressly states

that its narrow definition of ‘public accommodation’ applies

to [Section] 760.07”).

Fla. Stat. § 413.08(2), (3). Importantly, Section 413.08

provides only for criminal penalties. See Id. § 413.08(4)

(stating that whoever violates the statute commits a second-

degree misdemeanor and must perform community service).

Recognizing this, Ring argues that a cause of action for

negligence per se is created when a penal statute is designed

to protect a certain class of persons from a particular type

of harm. (Doc. # 47 at ¶ 95). She claims that, in enacting

Section 413.08, the Florida Legislature imposed a “statutory

duty of care” on places of public accommodation – like BCYC

– to allow disabled persons equal access to their facilities

and to be accompanied by their service animals. (Id. at ¶¶

89-91, 94, 97).

Outside of the context of public employment, no court

has yet recognized a private right of action under Fla. Stat.

§ 413.08. See Zorick v. Tynes, 372 So. 2d 133, 141 (Fla. 1st

DCA 1979). In fact, courts have refused to recognize a private

cause of action under Section 413.08. See Johnson v. Yashoda

Hosp., Inc., No. 2:15-cv-611-FtM-99CM, 2016 WL 6681023, at *3

(M.D. Fla. Nov. 14, 2016) (declining to extend Zorick to

authorize other types of private anti-discriminatory actions

directly under the statute).

Rather, the FCRA, with its broad language, provides the

mechanism to obtain private relief and damages under Section

413.08. See Fla. Stat. § 760.07 (providing that “[a]ny

violation of any Florida statute making unlawful

discrimination . . . gives rise to a cause of action” for

damages (emphasis added)); see also Sheely v. MRI Radiology

Network, P.A., 505 F.3d 1173, 1204-06 (11th Cir. 2007)

(implicitly recognizing that a violation of Section 413.08

can be enforced through an FCRA cause of action); Johnson,

2016 WL 6681023, at *3 (stating that Section 413.08 is

enforceable through the FCRA).

Here, Ring’s Second Amended Complaint alleges, as part

of her FCRA claim, a violation of Section 413.08(3)’s

directive that disabled individuals have the right to be

accompanied by a service animal in all areas of public

accommodation that the public or customers are normally

permitted to occupy. (Doc. # 47 at ¶ 74). Thus, Ring may bring

a private cause of action for violations of Section 413.08

under the FCRA, but she may not bring a private cause of

action under Section 413.08 itself. See Johnson, 2016 WL

6681023, at *3.

Although Ring’s counsel readily admitted at the hearing

on BCYC’s Motion that there is no case law supporting her

novel negligence per se theory, the Court will discuss it in

the interest of thoroughness. Negligence per se exists if

there is a violation of a strict liability statute or rule

designed to protect a “certain class of persons from their

inability to protect themselves, such as one prohibiting the

sale of firearms to minors,” or a violation of a statute or

rule which “establishes a duty to take precautions to protect

a particular class of persons who are unable to protect

themselves from a particular injury or type of injury.” See

deJesus v. Seaboard Coast Line R.R. Co., 281 So. 2d 198, 200–

01 (Fla. 1973); see also Hesterly v. Royal Caribbean Cruises

Ltd., 515 F. Supp. 2d 1278, 1287 n.6 (S.D. Fla. 2007). When

a statute is silent as to whether it allows for a private

cause of action, such a claim can only survive when the

statute evidences legislative intent to create a private

cause of action. Zarrella v. Pac. Life Ins. Co., 755 F. Supp.

2d 1218, 1228 (S.D. Fla. 2010) (citing Murthy v. N. Sinha

Corp., 644 So. 2d 983, 985 (Fla. 1994)). Federal courts

“should be particularly reluctant to read private rights of

action in state laws where state courts and state legislatures

have not done so.” Id. (internal quotation marks and

alteration omitted).

Section 413.08 is part of broader social welfare laws

entitled “blind services program.” The stated purpose of the

act is to “encourage and assist blind and other severely

handicapped individuals to achieve maximum personal

independence through useful, productive, and gainful

employment by assuring an expanded and constant market for

their products and services, thereby enhancing their dignity

and capacity for self-support and minimizing their dependence

on welfare and need for costly institutionalization.” Fla.

Stat. § 413.032.

There is nothing in Section 413.08 evidencing

legislative intent to create a private right of action. Nor

does Ring’s claim implicate the Florida Legislature’s stated

reasons for enacting the social welfare laws under which

Section 413.08 falls. See Fla. Stat. § 413.032. Thus, Ring’s

negligence per se claim must be dismissed. Further, because

a private right of action does not exist under Section 413.08,

any amendment of this claim would be futile, and so Count IV

of Ring’s Second Amended Complaint must be dismissed with

prejudice. See Amato v. Mortg. Inv’rs Corp. of Ohio, Inc.,

No. 5:12-cv-148-Oc-10PRL, 2013 WL 12204325, at *4 (M.D. Fla.

Mar. 19, 2013) (explaining that, because there was no set of

facts that could be alleged which would permit a private cause

of action as sought by plaintiff, amendment would be futile

and dismissal with prejudice was appropriate).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Boca Ciega Yacht Club, Inc.’s Motion to Dismiss the

Second Amended Complaint and Strike Jury Trial Demand

(Doc. # 48) is GRANTED in part and DENIED in part.

(2) Count IV of Plaintiff’s Second Amended Complaint is

DISMISSED WITH PREJUDICE. All other Counts survive.

(3) BCYC’s Answer to the Second Amended Complaint is due

fourteen days from the date of this Order.

DONE and ORDERED in Chambers in Tampa, Florida, this 7th

day of November, 2019.

9m. Henenby Cree

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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