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 upon consideration of

Defendant Boca Ciega Yacht Club’s (BCYC’s) Motion for Summary

Judgment (Doc. # 122), filed on January 17, 2020, and

Plaintiff Samantha Ring’s Motion for Summary Judgment (Doc.

# 128), filed on January 24, 2020. Both parties have filed

responses in opposition. (Doc. ## 135, 137). For the reasons

that follow, BCYC’s Motion is granted and Ring’s Motion is

denied.

I. Background

A. BCYC

BCYC is a tax-exempt, not-for-profit corporation. (Doc.

# 129-22). According to the Mission Statement within its

Bylaws, BCYC’s mission is to promote safe boating activities,

promote instruction and education in safe boating and all

nautical activities, promote fellowship and camaraderie among

the members, and be an integral part of the community of

Gulfport. (Doc. # 129-30 at 1).

BCYC has a Board of Directors consisting of seven elected

“Flag Officers” (including the Commodore and Vice Commodore),

the immediate past Commodore, and eight other Directors who

are each elected to a two-year term. (Doc. # 129-30 at 6, 7;

Doc. # 129-24 at 11-13). The Board is responsible for managing

and controlling BCYC’s affairs, approving budgets, and making

and enforcing the club’s Bylaws, rules, and policies. (Doc.

# 129-30 at 6).

1. The Lease with the City

BCYC leases the clubhouse and adjacent grounds from the

City of Gulfport. (Doc. # 122 at ¶ 3; Doc. # 135 at ¶ 3A;

Doc. # 128-6). On December 21, 2007, BCYC and the City

executed a Lease running for 13 years and expiring on December

31, 2020. (Id.).

BCYC pays the City an annual rent of $1 per year for the

lease of the clubhouse and parking area. (Doc. # 128-6 at 1).

The Lease also includes 56 wet slips and 50 dry storage slips

on the premises for exclusive use by BCYC members, with

members leasing the slips directly from the City. (Id. at 1-

3). BCYC is responsible for the payment of all utility

charges, taxes, and fees. (Id. at 4). The Lease provides that

BCYC must maintain its status as a not-for-profit Florida

corporation and a tax-exempt organization for the life of the

Lease. (Id.). If it fails to do so, the City can terminate

the Lease. (Id. at 6).

Under the Lease, BCYC is permitted to use the premises

“only for a meeting place, recreational purposes, vessel

docking and storage, watercraft events and business office,

for [BCYC’s] members, only. [BCYC] may make no other use of

the premises without written consent of [the City].” (Id. at

4). However, BCYC may host regattas and other nautical events

“so long as the same are coordinated with [the City’s]

harbormaster.” (Id.).

The boat ramp leased to BCYC is for the exclusive use of

members and their guests, and BCYC cannot allow use of the

boat ramp by the general public. (Id.). However, the Lease

provides that BCYC must allow members of certain named

organizations to have access to the beach. (Id.). In addition,

only one person is allowed to live aboard their boat on the

leased premises at a time. (Id.).

According to the Lease, BCYC is not allowed to sell or

distribute alcoholic beverages on the premises to anyone

other than members of BCYC and their guests. (Id. at 6). BCYC

“shall not sell or distribute any goods or merchandise to the

general public in competition with items sold by Lessor at

the City Marina.” (Id.). “In the event [BCYC] obtains the

proper licenses to dispense alcoholic beverages as a private

club, the sale or consumption of such beverages shall not be

available to the general public and the same shall be limited

to Lessee’s members and their guests.” (Id.).

2. Membership application process

The membership application process is as follows.

First, prospective members must fill out an application.

(Doc. # 129-30 at 3). According to the Bylaws, membership in

BCYC is open to any person who is “of good character” and at

least 21 years old. (Id. at 2). Applicants must also undergo

a background check. (Id. at 3). Gerri Angel, the longtime

chair of the BCYC Membership Committee, submitted an

affidavit averring that she sends applications to an

investigator to perform these background checks. (Doc. # 137-

20 at 1, 2). The investigator will verify the applicant’s

address, and conduct a criminal background check and an

employment check. (Id. at 2). The purpose of this background

check is to ensure that applicants have a valid, land-based

address and are thus less likely to live aboard their boat,

ensure the applicant does not have any prior felonies or

sexual offenses on their record, and ensure that the applicant

can pay the membership dues. (Id. at 2-3).

Once an applicant passes the background check, Angel

will call the prospective member to ask them general questions

regarding their interest in the club. (Doc. # 129-1 at 60;

Doc. # 137-20 at 3). Angel has discretion about what to ask

during that initial phone call. (Doc. # 129-1 at 61). Next,

the prospective member will meet with at least three

Membership Committee members at the BCYC clubhouse during

“interview night.” (Doc. # 137-20 at 1, 3; Doc. # 129-1 at

63). According to Angel, on interview night, she provides

prospective members with a history of the club, explains that

the club is run by volunteers, including scheduled Saturday

“workdays,” and explains the parameters of BCYC’s Lease with

the City. (Id. at 3-4). The Membership Committee will ask

applicants why they wish to join BCYC and what they will bring

to the club. (Id. at 4-5). Angel represents that the committee

meets with applicants in person to make sure they have an

interest in nautical or maritime activities and will be “a

good fit” for the club. (Id. at 4, 5).

If the applicant is approved by the Membership

Committee, their application is presented to the board and

board members have a chance to object to any applicants. (Doc.

# 129-30 at 3; Doc. # 137-20 at 5). Then, the applicants will

come to the next general meeting and will be voted in upon a

majority vote of the general membership. (Id.). Once every

month, except in December, applicants’ names are brought up

to BCYC’s board and then applicants are voted in at a general

meeting. (Doc. # 128 at ¶ 34; Doc. # 137 at ¶ 34).

In 2019, annual membership dues were $145 per quarter

per household. (Doc. # 128 at ¶ 40; Doc. # 137 at ¶ 40).

Members pay no renewal fees or additional fees of any kind.

(Id.). Members are, however, expected to attend general

membership meetings and participate in “workdays,” a Saturday

time commitment where members attend to the maintenance and

upkeep of the club facilities. (Doc. # 129-30 at 1; Doc. #

129-1 at 16-17); see also (Doc. # 129-30 at 15) (as part of

the clubhouse policies, stating that BCYC “is a self-help

sailing association of members willing to perform work around

the Clubhouse, grounds and docks to maintain and improve the

property and to keep expenses at a minimum”).

3. BCYC’s guest and pet policies

According to the Bylaws, guest and visitor privileges

are determined by the Board. (Doc. # 129-30 at 13). Per the

stated clubhouse policies, all guests must be accompanied by

club members. (Id. at 15, 17). Under “Use of Premises,” the

policies allow “special personal use by members” subject to

certain approvals and conditions, but the club is “[n]ot for

use by [the] general public.” (Id. at 15). In addition, per

BCYC policy, no pets or animals are allowed inside the

clubhouse, although they are allowed on the grounds and on

the screened porch. (Id. at 17). All pets must be on a leash

and under the owner’s control at all times. (Id.).

B. Samantha Ring

During the majority of her membership in BCYC, Ring

worked as a full-time schoolteacher for the Pinellas County

School District, where she taught Spanish at Bay Point Middle

School. (Doc. # 122 at ¶ 33; Doc. # 135 at ¶ 33). Ring teaches

Spanish to 18-25 middle school students each school day,

during six 47-50 minute periods. (Doc. # 122 at ¶ 35; Doc. #

135 at ¶ 35). Dena Collins, the principal of Bay Point Middle

School, testified that Ring is an effective teacher; she

manages her classroom well and keeps sometimes disruptive

middle school students engaged. (Doc. # 122 at ¶ 36; Doc. #

135 at ¶ 36).

According to Collins, Ring’s attendance record during

the 2019-2020 school year had been normal and predictable.

(Doc. # 122 at ¶ 34; Doc. # 135 at ¶ 34). Collins testified

that Ring had never requested any reasonable accommodations

from Bay Point Middle School and had never approached the

school with a request to bring a service animal. (Doc. # 122

at ¶ 37; Doc. # 135 at ¶ 37). Based on her review of Ring’s

personnel file from the Pinellas County School District,

Collins testified that Ring had worked for at least several

years as a full-time teacher, posting full hours annually for

many years, and she had not disclosed any health impairments

on an employee information form in August 2016. (Doc. # 122

at ¶ 38; Doc. # 135 at ¶ 38). Ring does not bring her dog,

Piper, to work because of concerns regarding students with

dog allergies, dog phobias, and that a dog’s presence would

be distracting to middle school students. (Doc. # 128 at ¶

15; Doc. # 137 at ¶ 15).

Ring avers that she has “severe allergies” to bee venom

or bee stings and sunflower seeds. (Doc. # 128-2 at 1). She

claims that these allergens trigger an anaphylactic reaction,

making it hard for her to breathe. (Id. at 1-2). She also

suffers from anxiety with panic attacks.1 (Id. at 4). Ring

1 The Court agrees with BCYC that Ring’s allegations raised

in her January 23, 2020 affidavit, regarding her poor eyesight

and being legally blind in one eye, are unsupported by any

other record evidence. (Doc. # 137 at 16-18; Doc. # 128-2 at

3-4). Since the beginning of this litigation, Ring’s

uses an EpiPen when she has an allergic reaction, and she had

to use her EpiPen twice in November and December 2019. (Id.

at 2).

Ring obtained Piper in August 2015 but did not obtain

her to be a service animal. (Id. at 2). However, according to

Ring, one day while Ring and Piper were out on Ring’s boat,

Piper, untrained, killed a bee buzzing nearby. (Id. at 2-3).

At that point, Ring decided to start training Piper to be her

service animal. (Id. at 3). According to Ring, Piper passed

the Canine Good Citizen test in January 2019. (Id.). She avers

that Piper is trained to retrieve her medi-pack or apply “deep

pressure therapy” when she is having a panic attack. (Id. at

3-4). Additionally, Piper has been working with a dog trainer,

Dawn Scheu, to “fine tune Piper’s ability to detect sunflower

seeds.” (Id. at 4).

C. Ring’s interactions with BCYC concerning Piper

Ring is a sailor and joined BCYC in 2007. (Doc. # 128 at

¶ 7; Doc. # 137 at ¶ 7). Piper made a bad first impression on

Larry Brown, the BCYC Commodore in 2018. When Brown first

observed Piper, the dog was “out of control” and would bark

and lunge at people. (Doc. # 129-24 at 48). At that time, in

disability allegations have hinged on her allergies and

anxiety.

Brown’s opinion, Ring “clearly did not have control over the

dog.” (Id.). Brown admits that as time went on, and Piper

received training, her behavior improved. (Id.).

In approximately August 2018, Ring texted Brown a

photograph of a note prepared by Dr. Andres Santayana. (Doc.

# 129-24 at 17). This note read:

Samantha Ring is a patient under the care of our

clinic. I am familiar with this patient’s history

and functional limitations, as well as her

anaphylactic allergies. In order to help alleviate

these functional limitations due to her anxiety and

to assist with her allergies, I support Samantha’s

decision to have her service animal accompany her

at all times. A specially trained service animal

will help to mitigate her anxiety and prevent any

risks with her anaphylactic allergies, improving

her quality of life.

(Doc. # 100-2).

Ring testified that, along with this note, she made a

request for accommodation under the ADA to Brown requesting

that Piper be allowed into the clubhouse as a service animal.

(Doc. # 129-31 at 117-18, 120-21). Brown testified that he

understood this note to be a request for an exemption to the

club’s general prohibition against having dogs inside the

clubhouse and that Ring believed Piper to be a service dog.

(Doc. # 129-24 at 17, 19, 23-24). According to Brown, he did

not think this note was sufficient, so he asked Ring to

demonstrate Piper’s training, and “maybe she could change

minds of people that are on the board.” (Id. at 19, 21-22).

When Ring argued that she was allowed to bring Piper

into the clubhouse under the Americans with Disabilities Act

(ADA), Brown testified that he researched the ADA and

determined that BCYC was a private club and therefore exempt

from the ADA’s requirements. (Id. at 24-25).

On December 23, 2018, Brown issued Ring a written

reprimand for violating the Club’s pet policy for bringing

Piper into the clubhouse and warned her that any subsequent

violations would trigger the imposition of a fine. (Doc. #

122 at ¶ 22; Doc. # 135 at ¶ 22). According to Brown, Ring

wanted to bring Piper into the clubhouse because she was

living on her boat at the time, it was “freezing” out, and

the clubhouse would be more comfortable than her boat. (Doc.

# 129-24 at 48-49). It was around this time that Ring

threatened to file a complaint with the Pinellas County Office

of Human Rights (the “PCOHR”), and Brown “told her to go ahead

and do that and that we would talk to them.” (Id. at 28, 95-

96). On January 2, 2019,2 Ring filed a signed and verified

2 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.

Charge of Discrimination with 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. # 28-1).

In January 2019, Nick Southard, the Commodore who took

over after Brown, decided to hire an investigator to verify

Ring’s current address because BCYC officers were concerned

about Ring living aboard her boat. (Doc. # 129-1 at 39-41,

159). On January 21, 2019, Ring again brought Piper to the

clubhouse and Southard confirmed that a fine would be imposed.

(Doc. # 122 at ¶ 24; Doc. # 135 at ¶ 24; Doc. # 100-4). On or

about January 22, 2019, BCYC became suspicious that Ring was

using electricity from an electrical unit installed at the

BCYC dock that was unmetered and paid for by the City. (Doc.

# 129-1 at 184-86; Doc. # 129-12). Southard testified that

this electricity was meant to be used only intermittently for

minor repairs but that BCYC felt Ring was “stealing” this

electricity by having a line running from the outlet to her

boat while she was not there. (Id. at 186).

D. BCYC suspends, and ultimately expels, Ring

On January 31, 2019, the Board moved to suspend Ring’s

membership. (Doc. # 100-5). The motion states that Ring had

lived for three years as a non-sanctioned liveaboard on her

boat in contravention of the Lease. (Id. at 2). “During that

time, she has provided the Club and the City with four false

addresses as her land-based residence.” (Id.). In addition,

according to the motion, Ring had been “stealing City

electricity by keeping an extension cord plugged into the

City’s 110v electrical outlet on the pedestal near her boat

in the Club basin.” (Id. at 3). Ring denies that she stole

electricity from the City or lied about her address. (Doc. #

135 at 8; Doc. # 129-31 at 142-43, 179-80). She spoke in her

own defense at the January 31 Board meeting. (Doc. # 129-31

at 141).

In April 2019, the general membership of the club voted

to expel Ring.3 (Doc. # 100-6). The stated reasons for

expulsion were: (1) providing false addresses; (2) a pattern

of violations of club rules; (3) a pattern of dishonesty; (4)

undermining the club’s mission to be part of the Gulfport

Community by damaging the club’s relationship with the City;

(5) sowing discord among members; (6) two previous attempts

to expel; and (7) a pattern of offensive and boorish conduct

– toward members and guests – that is not aligned with the

3 BCYC claims that the expulsion took place on April 19, 2019,

while Ring alleges in the operative complaint that it took

place on April 1, 2019. (Doc. # 100 at 7; Doc. # 122 at 8).

standards of the BCYC community.” (Id. at 2). Ring amended

her administrative complaint in April 2019 to add charges of

retaliation. (Doc. # 100-7 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).

II. Procedural Background

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 ADA. (Doc. # 1). Following several rounds of motions

to dismiss, the operative complaint is Ring’s third amended

complaint. In that complaint, Ring brings three causes of

action against BCYC: failure to make reasonable modifications

under the ADA (Count I); retaliation in violation of the ADA

(Count II); and discrimination in violation of the Florida

Civil Rights Act (FCRA) (Count III). (Doc. # 100).

Both parties now seek summary judgment in their favor on

all claims. (Doc. # 122 at 1; Doc. # 128 at 25). The Motions

are ripe for review.

III. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

Finally, the filing of cross-motions for summary

judgment does not give rise to any presumption that no genuine

issues of material fact exist. Rather, “[c]ross-motions must

be considered separately, as each movant bears the burden of

establishing that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law.” Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–

39 (5th Cir. 2004); see also United States v. Oakley, 744

F.2d 1553, 1555 (11th Cir. 1984)(“Cross-motions for summary

judgment will not, in themselves, warrant the court in

granting summary judgment unless one of the parties is

entitled to judgment as a matter of law on facts that are not

genuinely disputed.”(quotation omitted)).

IV. Analysis

To prevail under Title III of the ADA, Ring must

demonstrate that (1) she is an individual with a disability,

(2) BCYC is a place of public accommodation, and (3) she was

denied full and equal treatment because of her disability.

Schiavo ex rel Schindler v. Schiavo, 358 F. Supp. 2d 1161,

1165 (M.D. Fla. 2005). Disability-discrimination claims under

the FCRA are analyzed using the same framework as ADA claims.

Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1255 (11th Cir.

2007). The parties dispute each of these prongs.

For the reasons discussed below, this Court need not

determine whether Ring suffers from a disability that

substantially limits a major life activity. The Court will

assume for the purposes of summary judgment, without

deciding, that Ring does have a disability.

A. Whether BCYC is a private club

According to BCYC, it is a “genuinely private club,”

making it exempt from the public accommodation requirements

of Title III of the ADA and the FCRA. (Doc. # 122 at 1, 11-

18). Ring argues in her own motion that BCYC is a place of

public accommodation. (Doc. # 128 at 18-25).4 The parties

agree that whether BCYC qualifies for the private club

exemption as a “public accommodation” under the ADA is a

question of law for the Court to decide. (Doc. # 145); see

United States v. Richberg, 398 F.2d 523, 526 (5th Cir. 1968)

(explaining that whether an institution is a “private club”

4 Ring also argues that BCYC bears the burden of proving that

it is entitled to the private-club exemption. The cases cited

by Ring in support of that proposition are not binding on

this Court. The Court is also aware of contrary decisions

within this Circuit. See Jenkins v. Wholesale Alley, Inc.,

No. 1:05-cv-03266-JEC, 2007 WL 9701996, at *6 (N.D. Ga. Sept.

11, 2007) (“Before the plaintiff may succeed on a public

accommodations claim under the ADA, he must first establish

that the defendant operated a public accommodation.”). Under

either standard, summary judgment in BCYC’s favor is

appropriate.

under the Civil Rights Act of 1964 is a question of law); see

also Jankey v. Twentieth Century Fox Film Corp., 14 F. Supp.

2d 1174, 1178 (C.D. Cal. 1998) (“Whether a particular facility

is a ‘public accommodation’ under the ADA is a question of

law.”).

Title III of the ADA provides that:

No individual shall be discriminated against on the

basis of disability in the full and equal enjoyment

of the goods, services, facilities, privileges,

advantages, or accommodations of any place of

public accommodation by any person who owns, leases

(or leases to), or operates a place of public

accommodation.

42 U.S.C. § 12182(a). For purposes of Section 12182(a),

discrimination includes a failure to make reasonable

modifications in policies, practices, or procedures. Id. §

12182(b)(2)(A)(ii).

Private clubs or establishments are exempt from Title

III of the ADA. 42 U.S.C. § 12187 (“The provisions of this

subchapter shall not apply to private clubs or establishments

exempted from coverage under Title II of the Civil Rights Act

of 1964 (42 U.S.C. § 2000–a(e))[.]”). Title II of the Civil

Rights Act, in turn, exempts “private club[s] or other

establishment[s] not in fact open to the public, except to

the extent that the facilities of such establishment[s] are

made available to the customers or patrons of [certain

businesses like hotels and restaurants] “affecting interstate

commerce or supported in their activities by State action.”

42 U.S.C. § 2000a (b),(e).5

To determine whether an establishment is truly a private

club or establishment for purposes of the ADA, both parties

point to the eight-factor test set forth in United States v.

Lansdowne Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989). The

eight Lansdowne factors are: (1) the genuine selectivity of

the group in the admission of members; (2) the membership’s

control over the operations of the establishment; (3) the

history of the organization; (4) the use of the facilities by

non-members; (5) the purpose of the club’s existence; (6)

5 The ADA provides that certain listed private entities will

be considered public accommodations, including, in pertinent

part: (1) a restaurant, bar, or other establishment serving

food or drink; (2) a motion picture house, theater, concert

hall, stadium, or other place of exhibition or

entertainment;(3) an auditorium, convention center, lecture

hall, or other place of public gathering; (4) a park, zoo,

amusement park, or other place of recreation; (5) a nursery,

elementary, secondary, undergraduate, or postgraduate private

school, or other place of education; and (6) a gymnasium,

health spa, bowling alley, golf course, or other place of

exercise or recreation. 42 U.S.C. § 12181(7)(B),(C),(D),(I),

(J), (L). Despite Ring’s arguments to the contrary, BCYC falls

outside the umbrella of the listed statutory places of public

accommodation. While members may go there for recreation and

potluck dinners, BCYC is not similar to or like a restaurant,

bar, or gymnasium. Thus, the Court will look to the Lansdowne

factors in determining whether BCYC is a place of public

accommodation.

whether the club advertises for members; (7) whether the club

is for profit or not for profit; and (8) the formalities

observed by the club, e.g., bylaws, meetings, and membership

cards. Id. at 795-805; see also Lobel v. Woodland Golf Club

of Auburndale, 260 F. Supp. 3d 127, 140-47 (D. Mass. 2017)

(looking to Lansdowne factors to determine if golf club was

a place of public accommodation under the ADA); Jankey, 14 F.

Supp. 2d at 1180-84 (looking to same with respect to studio

lot facilities).

1. Genuine selectivity in admission of members

Because “genuine selectivity is an integral

characteristic of a private club,” courts have found this

factor to be the “most important” in ascertaining private-

club status. Lansdowne, 713 F. Supp. at 797; see also EEOC v.

Chicago Club, 86 F.3d 1423, 1436 (7th Cir. 1996) (“[S]elective

membership practices are the essence of private clubs.”). A

variety of characteristics can reflect whether a club is truly

selective, including the formality of the club’s admissions

procedures, the standards or criteria for admission, the

membership’s control over the selection of new members, the

numerical limit on club membership, the substantiality of the

membership fees, and the extent to which applicants are denied

admission. See Lobel, 260 F. Supp. 3d at 140 (citing

Lansdowne, 713 F. Supp. at 797-98).

a. Formality of admission procedures

According to the BCYC Bylaws, prospective members must

fill out an application, pass a background check, be “vetted

by the Membership Committee,” have their application read at

a board meeting, and be admitted upon a majority vote of the

general membership. (Doc. # 129-30 at 3). The record evidence

reflects that BCYC follows this process. See (Doc. # 129-1 at

58-69). Thus, BCYC utilizes a multi-step and formalized

process in admitting members, and this factor supports a

finding of private-club status. See Lobel, 260 F. Supp. 3d at

140 (“Woodland’s procedures for evaluating and selecting new

members exhibit several characteristics that are relatively

formal,” including a set procedure that applicants must

follow, “and thus support a finding of genuine

selectivity.”).

b. The standards or criteria for admission

Applicants may be anyone over 21 years of age. (Doc. #

129-1 at 58). Applicants need not own a boat or have any prior

sailing experience, but should have an interest in sailing

and nautical activities. (Id. at 56-60). Applicants need not

be sponsored by a current BCYC member or receive

recommendations. (Id. at 70). They must pass a background

check to ensure that they have a land-based address, a clean

criminal record, and are employed. (Doc. # 137-20).

It is undisputed that Gerri Angel will make the initial

telephone calls to applicants and that what questions she

asks are generally up to her. (Doc. # 129-1 at 61). Applicants

must then meet with additional Membership Committee members

at the clubhouse and answer questions as to why they wish to

join. According to Angel, since 2016, there have been three

to six other members who have served with her on the BCYC

Membership Committee. (Doc. # 137-20 at 1). At this interview

night, applicants are asked about why they wish to join BCYC

and Membership Committee members evaluate whether the

applicants would be a “good fit.” (Id. at 3-5). If they pass

the Membership Committee, the applicants’ names are read to

the Board, and applicants must then attend the general

membership meeting, at which a vote will take place. (Id. at

5).

Southard testified that he could not recall any instance

at which an applicant who appeared before the general meeting

was denied admission. (Doc. # 129-1 at 72). Southard described

it as “fait accompli” – that once Angel passes an applicant

to the general meeting, his or her admission is assured. (Id.

at 67). However, Angel represented in her declaration that,

in 2017 and 2018, she has chosen not to invite certain

applicants to interview night or the general meeting because,

based on either their answers in the initial telephone call

or at interview night, it was determined that they were not

a good fit for BCYC. (Doc. # 137-20 at 6). Certain applicants

have also had objections lodged against them by the board.

(Id.). Angel did not state which proportion of applicants

failed to progress to interview night or the general vote.

See generally (Id.).

Ring’s point is well-taken that BCYC’s admissions

procedures and criteria are less stringent than those found

to confer private-club status by other courts. For example,

the social club at issue in Chicago Club utilized two paths

to admission:

The board of directors extends invitations to

membership under one of two provisions in the

Club’s bylaws. Under one provision, one member

proposes a candidate and two members second the

proposal. Two directors must be acquainted with

candidates for resident membership, and one

director must be acquainted with nonresident

candidates. The names of the candidates are

published to the Club, and members may comment upon

the candidates. The Club’s secret membership

commission reviews the proposed candidates and the

membership’s comments and makes recommendations to

the board. The board may then extend invitations to

membership. Another provision of the bylaws allows

the board of governors, upon its own motion and

without any formal procedure, to elect a person to

any class of membership in which there is a vacancy.

In no case under either procedure may an invitation

to membership issue if two or more directors

present for the vote are opposed.

This procedural gauntlet incorporates a screening

process that emphasizes personal interaction

between members and candidates for membership.

. . .

The undisputed facts demonstrate that the Club is

extremely selective in admitting new members.

86 F.3d at 1426, 1437; see also Bommarito v. Grosse Pointe

Yacht Club, No. 05-cv-73359, 2007 WL 925791, at *11 (E.D.

Mich. Mar. 26, 2007) (holding that defendant yacht club

qualified for the exemption where it required a written

application, the sponsorship of three current members, the

posting of the candidacy at the clubhouse, consideration by

the board of directors, and a secret ballot).

However, membership selection need not always meet such

a lofty standard to confer private-club status. The Court is

cognizant of the Seventh Circuit’s admonition in Chicago Club

that “by no stretch of the imagination should the practices

of the Club outlined above be considered as the minimum

necessary to qualify as a bona fide membership club under

[Section] 2000e(b). To the contrary, it is clear that less

stringent membership policies and guest arrangements than

those employed by the Club would easily meet [Section]

2000e(b)’s bona fide private membership club requirements.”

86 F.3d at 1437.

For example, a district court within this Circuit has

held that a golf course clubhouse was exempt from Title III

of the ADA where the club “de facto offer[ed] membership” to

any homeowner within a residential subdivision. Huene v.

Landings Club, Inc., No. CV411-282, 2012 WL 515674, at *3

(S.D. Ga. Feb. 15, 2012), report and recommendation adopted,

No. 4:11-CV-282, 2012 WL 777183 (S.D. Ga. Mar. 6, 2012). As

the Huene court reasoned, “broadly allowing Landings-

subdivision homeowners to join is not the same as allowing

anybody to walk in off the street and obtain a membership.”

Id.

Here, by ensuring that applicants pass a background

check, have an interest in sailing or other nautical

activities, are willing to help volunteer and attend club

events, requiring applicants to personally meet with several

members of the Membership Committee, and be voted in by a

majority vote of the general membership, BCYC has meaningful

standards or criteria for admission of new members. The record

evidence demonstrates that BCYC members are knit together by

a common love of sailing, or a desire to learn more about

nautical activities, and a willingness to expend their time

maintaining the club’s premises and supporting club

activities. As former Commodore Brown explained when asked

what makes BCYC a private club, “I think that the idea of

having a club with people that are like-minded, that want to

do the same things, should be able to come together as a group

and do that thing that they like to do together. And so if

having it being a public club means that just anybody can be

a member, then what’s the point of having it as a club?” (Doc.

# 129-24 at 56-57).

“A private club is a group of individuals who imagine

the membership as a personification of whatever priorities or

interests the club professes to embrace. Whether these

priorities or interests are laudatory or mundane is beside

the point, which is that they are shared by a group who have

chosen their social intimates on the basis of these values.”

Chicago Club, 86 F.3d at 1437. Thus, this factor weighs in

favor of the private-club exemption.

c. The membership’s control over the selection of

new members

“[M]embership participation in the selection of new

members is a critical attribute of a private club.” Chicago

Club, 86 F.3d at 1436. For the reasons described above, the

Membership Committee screens potential members at interview

night, and the BCYC membership gets to vote at a general

meeting as to whether applicants should be admitted. Members

of the Board also get a chance to object to new members prior

to the general meeting. This factor weighs in favor of the

private-club exemption.

d. The numerical limit on club membership

While the Bylaws do not contain a formal numerical limit

on membership, Southard testified that the number of members

has stayed stable, at around 200. (Doc. # 129-1 at 12). This

factor is neutral.

e. The substantiality of the membership fees

In 2019, annual membership fees were $145 per quarter

per household. (Doc. # 128 at ¶ 40; Doc. # 137 at ¶ 40).

Members pay no renewal fees or additional fees of any kind.

(Id.).

This amount is negligible in comparison to the

substantial sums charged by other private clubs. See, e.g.,

Lobel, 260 F. Supp. 3d at 142 (determining that club charged

new members a non-refundable $55,000 initiation fee and

required dues of approximately $14,000 per year). However,

BCYC does impose volunteer requirements on its members,

requiring them to participate in Saturday “workdays” to

maintain the clubhouse and premises. As stated in the

clubhouse policies, this volunteer time is expected in order

“to keep expenses at a minimum.” (Doc. # 129-30 at 15).

The Court has not located, nor have the parties pointed

to, any case law determining whether an organization was

exempt where financial fees were low but members were

nonetheless required to put in “sweat equity.” The Court finds

the opinion in Rasmussen v. Cent. Fla. Council Boy Scouts of

Am., Inc., to be instructive on this point. In Rasmussen, a

local council of the Boy Scouts of America owned a

“reservation” encompassing five camps, which included

lodging, activity areas, dining areas, and other facilities

for use by Boy Scout troops. No. 6:07-cv-1091-Orl-19UAM, 2008

WL 681055, at *2 (M.D. Fla. Mar. 7, 2008). The court found

that although the reservation was staffed by seven permanent

staff members, adult volunteers “play an important role in

the Scouts.” Id. While council members had to pay a fee to

use the camp, the council overall lost money on the camping

program due to its “affordable camping fees.” Id.

When faced with a claim brought under Title III of the

ADA, the council asserted the private-organization exemption.

Id. at *6. The court ultimately determined that, except for

a gift shop that was open to the public, the remainder of the

council’s facilities were not open to the public and, thus,

the council qualified for the exemption. Id. at *9. Thus, the

low fees did not deprive the camp of private-club status.

This factor is, at most, neutral.

f. The extent to which applicants are denied admission

While Southard testified that he could not recall any

potential applicant being denied membership once they

progressed to the general meeting vote, Angel stated in her

affidavit that candidates had been denied admission at

earlier stages of the process in 2017 and 2018, although she

did not state what percentage of applicants were denied

admission. The Court also notes the Rasmussen court’s

determination of the exemption’s applicability despite the

fact that the council sponsored scouting programs involving

24,406 child members and 8,630 adult volunteers because the

council had a “plan or purpose of exclusiveness” by requiring

scouts to adhere to the Scout Oath and Law, as well as profess

their belief in God. Id. at *1, *8. This factor is also

neutral.

In short, the “genuine selectivity in admission of

members” factor weighs in BCYC’s favor.

2. The membership’s control over the operations

of the establishment

Control of an organization’s operations by its members

is another factor weighing in favor of private-club status.

Lobel, 260 F. Supp. 3d at 143. Here, the evidence establishes

that the BCYC Board, which is composed of BCYC members,

controls the affairs of the club and has the power to

promulgate and enforce its by-laws, policies, and rules.

While BCYC members do not invest funds as property owners

would, they nonetheless maintain the premises and organize

events. While Ring points to BCYC’s Lease with the City, there

is no record evidence that the City, in fact, exercises

control over BCYC’s day-to-day operations. Ring has failed to

direct this Court to any case in which the mere fact that a

municipality leased land to an otherwise private organization

was sufficient to destroy the organization’s status as a

private club. This factor weighs in favor of private-club

status.

3. The history of the organization

BCYC was incorporated in 1966. (Doc. # 128 at ¶ 23; Doc.

# 137 at ¶ 23). BCYC’s purpose, as stated in the articles of

incorporation, was to (1) promote safe boating activities in

Pinellas County and adjacent areas; and (2) promote

instruction and education in safe boating and nautical

activities.” (Doc. # 128 at ¶ 24; Doc. # 137 at ¶ 24).

According to its Lease with the City, BCYC’s premises are to

be used solely by its members and their guests. This factor

weighs in favor of private-club status.

4. The use of the facilities by non-members

BCYC hosts an annual “Fun Day” when the BCYC clubhouse

is open to members of the public. (Doc. # 122 at ¶ 6; Doc. #

135 at ¶ 6). During Fun Day, BCYC provides free food to

visitors. (Doc. # 122 at ¶ 9; Doc. # 135 at ¶ 9).

According to Brown, other than Fun Day, the clubhouse is

not indiscriminately open to members of the public at large

and access to the clubhouse for any purpose, including any

entertainment and educational events, is limited to members

and their guests. (Doc. # 129-24 at 78, 81). Other than Fun

Day, when the club provides free food, the club does not sell

food or drinks on the premises, nor is it used for lodging.

(Id. at 78). Once an individual becomes a member, they are

issued a key to the clubhouse, giving them unlimited access

to the clubhouse. (Id.). Non-members are not issued keys.

(Id.). Southard testified that, unless a member is at the

clubhouse, the clubhouse is kept locked. (Doc. # 129-1 at

256). In addition, the gate that provides access to the BCYC

dock is also normally kept locked, as Ring herself admitted

in her deposition. (Doc. # 129-31 at 159-60).

BCYC offers adult sailing school to members of the public

in the spring and fall on a limited, space-available basis,

and enrollment in the adult sailing school includes a 90-day

limited membership to BCYC, which entitles sail school

participants to access the clubhouse. (Doc. # 122 at ¶ 10;

Doc. # 135 at ¶ 10). In addition, the Sea Scouts are a youth

sailing club that is run by members of BCYC for kids. (Doc.

# 122-1 at 109-10; Doc. # 129-24 at 74). While neither the

children nor their parents need be members of BCYC, a BCYC

member or members act as a sponsor for the Sea Scout troop

and work with the children. (Doc. # 129-1 at 110; Doc. # 129-

24 at 74).

According to Brown, for any event held at the club other

than Fun Day, “there has to be a club member who is

responsible for any of the activity that happens.” (Doc. #

129-24 at 81). For example, if a member were to host a paint

your own wine glass event or a regatta at BCYC, an event which

non-members would attend, the member is there to make sure

“everything gets taken care of” and ensures “people aren’t

just running around doing whatever they want.” (Id. at 81,

82).

Ring points out that BCYC hosts 10 or more potlucks a

year. (Doc. # 129-1 at 98). According to Southard, nonmembers

are allowed to attend potluck dinners only as guests of

members. (Id. at 99-100). Ring states that, per the Lease

with the City, BCYC has to allow members of the Gulfport Lions

Club, Gulfport Yacht Club, Gulfport Youth Sailing, the Sea

Scouts, and the City’s authorized invitees and their guests

access to the beach area located behind the Lions Club

clubhouse. (Doc. # 129-30 at 4). Ring also points to BCYC’s

meeting minutes and calendar reflecting that events held by

or benefitting certain community organizations will be held

on BCYC’s premises. (Doc. # 128-16). By way of example: (1)

BCYC sponsored the “Cat’s Point Regatta,” an event hosted by

the BCYC Sea Scouts and nearby Eckerd College; (2) BCYC

participated in a tour of homes sponsored by the Gulfport

Area Chamber of Commerce by being the place tour participants

registered and got their maps; and (3) a local high school

drama club hosted a “covered dish” at BCYC as a fundraiser.

(Id. at 3, 5, 6).

Ring submitted her own affidavit attesting that the

clubhouse was rarely locked and she often saw “strangers”

freely walking about. (Doc. # 128-2 at 5). She attested that

the key pad at the entrance to the parking lot has a 4-digit

code has been the same for 12 years. (Doc. # 135-2 at 1).

She claims that, even when the gate is locked, the gate code

is “common knowledge.” (Id.). Similarly, the door to the

clubhouse has both a key-lock and a key pad, which code has

not been changed in many years. (Id. at 2).

Ring also submits three affidavits from individuals who

are not members of BCYC and aver that they have used the BCYC

facilities on multiple occasions and have never been asked

for identification, or to sign in. (Doc. ## 128-17, 128-18,

128- 19). They claim that they have been able to use BCYC’s

facilities “freely,” including the restroom, kitchen, and

parking area. (Id.).

According to the affidavit of BCYC member Lee Nell, the

gate to BCYC’s parking lot “used to be left open” but in

approximately 2018, BCYC decided to keep this gate closed at

all times — except during events — to discourage trespassers.

(Doc. # 137-4 at 4). Nell attested that before BCYC adopted

the closed-gate policy, there were occasions when non-members

would access the grounds. (Id.). However, according to Nell,

BCYC’s policy has “always” been that members question any

non-members about why they are on the premises, and guests

must always be accompanied by members. (Id. at 4-5). According

to Nell, Ring is the “only person who ever violated this rule

while she was a member of BCYC. Club members have reported

intercepting non-members on Club grounds, only to learn that

these visitors had been instructed by Ms. Ring to just ‘come

on in.’” (Id. at 5).

“Regular” or “indiscriminate” use of an establishment’s

facilities by nonmembers “contradicts private status.”

Jankey, 14 F. Supp. 2d at 1179. However, a private club with

a limited guest policy in which guests are not permitted

“unfettered use of facilities” will not defeat the private-

club exemption. See Kelsey v. Univ. Club of Orlando, Inc.,

845 F. Supp. 1526, 1530 (M.D. Fla. 1994).

While BCYC does sponsor community events at which non-

members will be present, Southard testified that non-members

are always there as guests of the attending members. (Doc. #

129-1 at 100, 102, 110). Ring has not directly refuted this

evidence regarding community events; she merely points to the

community events themselves as obviating private-club status.

Not only are these events consistent with BCYC’s stated guest

policy, but courts considering this issue have consistently

held that “occasional use of the Club facilities by non-

members . . . does not convert [an establishment] into a place

of public accommodation under the ADA.” Reimer v. Kuki’O Golf

& Beach Club. Inc., No. 12-00408 LEK-BMK, 2013 WL 1501522, at

*3 (D. Haw. Apr. 11, 2013); see also Jankey, 14 F. Supp. 2d

at 1178 (“A private club . . . is not converted into a public

accommodation under the ADA because it is occasionally used

by the general public.”). As one district court explained,

“[o]cassionally allowing local charities or civic

organizations to use an establishment’s facilities to host

public events is not the sort of public use that is

inconsistent with private-club status. Indeed, a contrary

rule would actively discourage clubs from hosting charitable

functions, for fear of losing their private-club status.”

Lobel, 260 F. Supp. 3d at 146 (citation omitted).

Finally, the self-serving affidavit submitted by Ring

herself is insufficient, by itself, to show that BCYC allows

unfettered use of the facilities. See Reimer, 2013 WL 1501522,

at *3 (holding that unsupported claims made in plaintiff’s

declaration were insufficient to show that nonmember use of

the club was so pervasive as to make it a place of public

accommodation). As for the three affidavits submitted by

members of the public in support of the proposition that BCYC

allows unfettered use of its facilities to non-members, it is

unclear when these incidents occurred, over what span of time,

or if Ring herself encouraged these individuals to enter

BCYC’s premises without a member. These isolated incidents

are insufficient to raise a genuine dispute of material fact

on this issue in light of the testimony that only members are

given key cards, that once BCYC realized trespassers were on

the property, it kept the gates locked, and the Club’s stated

policy that club premises are for the use only of members and

that nonmembers are only allowed when accompanied by a member.

“[I]solated accounts of incidents when members failed to

abide by defendant’s rules” are insufficient to defeat

private-club status. See Kelsey, 845 F. Supp. at 1530; see

also Jankey, 14 F. Supp. 2d at 1180-81 (finding private-club

status despite plaintiff’s contention that he had been “waved

through” to the property on approximately a dozen occasions).

On this record, it is plain that BCYC does not intend or allow

unfettered or regular use of its facilities by non-members.

BCYC’s limited guest policy and isolated incidents of non-

compliance do not demand a different result. See Jankey, 14

F. Supp. 2d at 1178; Kelsey, 845 F. Supp. at 1530. This factor

weighs in favor of private-club status.

5. The purpose of the club’s existence

As stated in the Bylaws, BCYC’s purpose is to promote

safe boating activities, boating education, and fellowship

among its members. (Doc. # 129-30 at 1). No board member or

flag officer is allowed to use the club to aid any political

party or use the clubhouse to further a private business.

(Id. at 7). While Ring points to the social aspect of BCYC

and it’s “rhumb-loving roots,” the fact that part of BCYC’s

purpose is that of a social club is not dispositive. For

example, the Chicago Club clearly had a purpose of both

forwarding business connections among the city’s business

titans, but also functioned as a social club and gathering

place for members and their guests. See Chicago Club, 86 F.3d

at 1426-27. This factor weighs in favor of private-club

status.

6. Whether the club advertises for members

BCYC maintains an active website and Facebook page, runs

an adult sailing school, advertises events and the sailing

school in “The Gabber,” a Gulfport publication, and recruits

new members at its boat show. (Doc. # 129-1 at 88-90, 95, 98,

231; Doc. # 128-7). Other courts that have examined this

question have found similar efforts insufficient to confer

public-accommodation status. See Lobel, 260 F. Supp. 2d at

144 (“There is no evidence that [defendant] actively uses its

website or Facebook page to solicit or recruit new members.

It does not, for example, use either platform to send ‘form

letters to certain individuals soliciting applications for

membership.’”); Jankey, 14 F. Supp. 2d at 1181-82 (finding

commissary located on movie studio lot to be exempt from ADA

despite being advertised for four years in a subscription

publication); Bommarito, 2007 WL 925791, at *9-10 (finding

yacht club to be exempt from ADA despite newspaper articles

and advertisements promoting a fishing event, sailing

classes, and a “Yachtsmen’s Weekend” to nonmembers). As the

Seventh Circuit has noted, “[p]rudently increasing membership

to increase revenue while not abandoning selective membership

practices exhibits nothing more than fiscal responsibility.”

Chicago Club, 86 F.3d at 1435. This factor weighs in favor of

private-club status.

7. Whether the club is for profit or not for profit

and the formalities observed by the club

BCYC is a tax-exempt, not-for-profit organization and

observes formalities such as the election of officers and

board members. This factor weighs in favor of private-club

status. See Pappion v. R-Ranch Prop. Owners Ass’n, 110 F.

Supp. 3d 1017, 1025 (E.D. Cal. 2015).

Based on its review of these factors, the Court

determines that BCYC is a private club or organization as a

matter of law. Although this case presents a closer call

than most, when viewing the Lansdowne factors as a whole,

BCYC meets the requirements of being a private club.

Accordingly, BCYC is exempt from the requirements of Title

III of the ADA.

The Court thus turns to the private-organization

exemption under the FCRA. The FCRA provides that: “[a]ny

violation of any Florida statute making unlawful

discrimination because of . . . handicap . . . in the area[]

of . . . public accommodations gives rise to a cause of

action[.]” 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

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.

As BCYC is not principally engaged in selling food,

drinks, or lodging to the general public and does not provide

recreation to the general public in the same way a theater or

concert hall does, the definitions in Section 760.02 are

inapplicable. That leaves the “private organizations”

exemption in Section 760.07. Another court in this district

has noted that “[n]o reported Florida cases have discussed

the ‘private organizations’ exemption to the FCRA,” and so

the court turned to federal law for guidance. Rasmussen, 2008

WL 681055, at *11. As described above, the Rasmussen court

determined that a chartered organization of the Boy Scouts

was a private club under Title III of the ADA, with the

exception of its “Trading Post,” which was available to the

general public. Id. at *8. Turning to the FCRA claim, the

court reasoned:

The Council is . . . a “private club” within the

meaning of Title III of the ADA. . . . In plain

English, a “private club” qualifies as a type of

“private organization,” because a club is

necessarily an organization. Thus, the term

“private organization” appears to be as broad in

application, if not broader, than the term “private

club.” As a result, the Council’s status as a

“private club” under federal law qualifies it as a

“private organization” within the meaning of the

FCRA.

Id. at *11. This Court agrees. Because it has determined that

BCYC is a private club within the meaning of Title III, it

follows that it is also a “private organization” under the

FCRA. Thus, BCYC is also exempt under the FCRA.

The Court notes at this juncture that the Eleventh

Circuit has not issued a ruling as to whether a facility that

is not a public accommodation under Title III of the ADA might

nevertheless be subject to a retaliation claim under Title V

of the Act. The likely answer is that these claims rise and

fall together. The ADA’s retaliation provision states that

the “remedies and procedures available under sections 12117,

12133, and 12188 of this title shall be available to aggrieved

persons for violations of subsections (a) and (b), with

respect to subchapter I, subchapter II and subchapter III,

respectively.” 42 U.S.C.A. § 12203(c). In other words, the

remedy for a violation of the ADA’s retaliation provision is

tied to the respective remedies available in Titles I, II,

and III of the ADA.

The Court has located only one other district court that

has analyzed this question, and it held, persuasively, that

“Defendants who are not otherwise subject to ADA remedies

cannot be sued for retaliation under the ADA.”

Saniefar v. Moore, No. 117-CV-00823-LJOBAM, 2018 WL 3020458,

at *6 (E.D. Cal. June 18, 2018). The Saniefar court reasoned

that, because the retaliation provision does not provide its

own remedial provision, the most reasonable inference is that

“Congress did not intend to create a remedy for retaliation

allegedly perpetrated by [defendants] not covered by

Subchapter III.” Id. at *7.

Thus, because BCYC is not a place of public

accommodation, all of Ring’s claims fail as a matter of law.

However, even if BCYC were a place of public accommodation,

Ring’s claims would still fail for the reasons detailed below.

B. Retaliation and causation

BCYC argues that it neither took Ring’s alleged

disability into account nor retaliated against her. (Doc. #

122 at 1). Instead, according to BCYC, Ring was expelled for

“continually violating the Club’s By-Laws and rules since

2014.” (Id.). Ring responds that BCYC’s actions were taken

because of her disability and in retaliation for exercising

her rights. (Doc. # 135 at 20).

As an initial matter, while Ring now argues in her

summary judgment motion that BCYC expelled her “for seeking

assistance in addressing BCYC’s discriminatory conduct from

the city of Gulfport” (Doc. # 128 at 4), this is not the basis

for the retaliation claim in her complaint. According to the

allegations in the third amended complaint, BCYC took the

adverse actions of fining, suspending, and ultimately

expelling Ring because she filed a charge with the PCOHR, and

“[t]he adverse actions against Ring were taken in retaliation

for Ring having filed an administrative complaint.” (Doc. #

100 at 10).

As such, BCYC only had fair notice that Ring’s

retaliation claim was based on her action of filing a charge

with the PCOHR, not on her communications with City officials.

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

(stating that the purpose of Rule 8’s liberal pleading

guidelines is to “give the defendant fair notice of what the

claim is and the grounds upon which it rests” (ellipsis

omitted)). Summary judgment briefing is not the appropriate

time to raise a new claim, and Ring’s claim that BCYC

retaliated against her in violation of the ADA for raising

BCYC’s alleged discriminatory conduct with the City is thus

not properly before this Court. See Corey Airport Servs.,

Inc. v. Decosta, 587 F.3d 1280, 1282 n.2 (11th Cir. 2009)

(“Because Corey cannot amend its Complaint by adding a new

claim in its summary judgment papers, we will not discuss

conduct beyond the scope of the Second Amended Complaint.”);

accord Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315

(11th Cir. 2004) (“At the summary judgment stage, the proper

procedure for plaintiffs to assert a new claim is to amend

the complaint in accordance with [Federal Rule of Civil

Procedure] 15(a).”).

Moving onto the merits of the retaliation claim, the

record reflects that Ring and BCYC have had a tumultuous

relationship. In February 2016, a motion was presented to

expel Ring from membership. (Doc. # 129-40). The motion stated

that a similar motion had been made in 2015 because of, among

other things, “her boorish behavior, both publicly and in

private, against some other BCYC members and officers.” (Id.

at 3). However, after a discussion with certain BCYC officers,

the 2015 motion was never brought forward. (Id.).

The February 2016 motion stated that Ring had

“repeatedly, willfully, and continually violat[ed] one or

more of the BCYC rules and policies.” (Id.). An attached bill

of particulars set forth the specific bases for the motion.

(Id.). The bill of particulars included: (1) after hosting a

potluck dinner, Ring did not clean up the food, instead

leaving the mess for others to clean up; (2) publicly

criticizing other members; (3) Ring shirked certain

responsibilities regarding the BCYC Christmas boat parade;

(4) Ring brought her “very large, very furry” dog to a large

gathering honoring a longtime BCYC member who was ill, refused

to remove the dog when asked, and “harangued” another member

about this; (5) Ring was living aboard her boat without the

necessary authorization; (6) Ring took club supplies without

asking; (7) Ring exceeded her allotted time on the T-docks;

(8) allowing Piper to run, unrestrained and off leash, on the

premises; and (9) generally acting in a rude and aggressive

manner to other club members, including sending threatening

and mocking emails to one of the officers. (Id. at 4-9).

According to the bill of particulars, these infractions began

in August 2014 and continued until January 2016. (Id.); see

also (Doc. # 137-4 at 3) (BCYC member describing Ring bringing

another dog, Harry, to a crowded event where Harry “kept

bumping into members, including the terminally ill lifetime

member” being honored at the event, and stating that Ring

“verbally attacked the Chair of the event for asking her to

remove her dog from the banquet area”). Despite this motion,

Ring was ultimately allowed to keep her BCYC membership. See

(Doc. # 122 at 5). In addition, Ring’s deposition is replete

with accusations of other BCYC members making derogatory

comments to or about her or engaging in disagreements with

her during her time as a BCYC member. See, e.g., (Doc. # 129-

31 at 57-61, 64-66, 76-78, 83-84, 93-94, 127-28).

In approximately August 2018, Ring forwarded her note

regarding her purported need for a service animal to Commodore

Brown. (Doc. # 129-24 at 17). Brown testified that he

researched the ADA and discussed the matter with Ring. (Id.

at 95). When it became apparent to Brown that they were not

going to reach a resolution, he encouraged Ring to file a

complaint with the PCOHR. (Id. at 95-96).

On December 23, 2018, Brown issued Ring a written

reprimand for bringing Piper into the clubhouse against BCYC

rules. (Doc. # 129-26). Ring filed her complaint with the

PCOHR on January 2, 2019. (Doc. # 28-1).

It was in this early to mid-January time frame that Ring

both contacted City officials to complain of BCYC’s treatment

of her and also when Southard reached out to an investigator

to verify Ring’s address. (Doc. # 129-1 at 39-41, 159; Doc.

# 129-4 through 129-8).

On January 21, 2019, Ring again brought Piper into the

clubhouse, and then-Commodore Southard issued Ring a fine.

(Doc. # 100-4). On January 31, 2019, the BCYC Board suspended

Ring’s membership privileges. (Doc. # 100-5). According to

the suspension motion, board member Anthony Angel moved to

suspend Ring “due to her fraud on the City, which conduct is

likely to endanger the welfare of BCYC by negatively impacting

[BCYC’s] efforts to negotiate a favorable lease with the City

of Gulfport, thereby jeopardizing BCYC’s future existence.”

(Id. at 1). The explanatory notes in support of the motion

explain that, since the City installed a new mooring field,

preventing boaters from living aboard their vessels has

become “of heightened interest to the City.” (Id. at 2).

According to the motion, Ring had lived for three years

“as a non-sanctioned ‘liveaboard’ despite the provision in

BCYC’s lease with the City prohibiting such liveaboards.

During that time, she has provided the Club and the City with

four false addresses as her land-based residence. . . . Ms.

Ring has been stealing City electricity by keeping an

extension cord plugged into the City’s 110v electrical outlet

on the pedestal near her boat in the Club basin. . . . As Ms.

Ring is well aware, the City strongly objects to boat owners

using that electrical power on a constant or ongoing basis.”

(Id. at 2-3).6

In conclusion, the motion stated that the Board believed

that “the City has stalled the start of the Club’s lease

negotiations awaiting the Club’s actions to comply with its

obligations under the current Lease. Regardless, it is clear

that Ms. Ring has in the past violated a number of lease

provisions and rules, and she continues to do so. Her actions

have jeopardized the likelihood that the Club will be able to

secure favorable terms in a new lease, without which the

Club’s future survival is extremely uncertain. For this

reason, [the Board] believe[s] Ms. Ring’s conduct is likely

to endanger the welfare of BCYC, and therefore, it is

necessary to suspend Ms. Ring from the Club immediately.”

(Id. at 3).

6 During her deposition, Ring never explicitly denied ever

living on board her boat. She admitted that she applied at

one point to be the authorized liveaboard. (Doc. # 129-31 at

124-25). It is unclear when this request occurred, although

it likely took place in 2018 because Ring made her request to

Brown, the Commodore at the time. (Id.). It’s also unclear

whether this request was ever granted or denied, although

Brown expressed his “concern” about Ring having Piper with

her on board the boat. (Id.).

Ring appeared in person at the January 31, 2019, Board

meeting to defend herself against the charges and implied

that the accusations of stealing electricity and providing

false land-based addresses were untrue. (Doc. # 129-31 at

139, 141-43). During her deposition, she referred to another

BCYC member, Ray Rodriguez, as her “roommate.” (Id. at 140).

But, while Ring provided the address of the Rodriguez family

home to BCYC, Rodriguez’s ex-wife had informed the BCYC Board

that Ring did not live at that residence and never had. (Doc.

# 129-1 at 158-65; Doc. # 129-7). The record also reflects

that, on January 25 and 28, 2019, BCYC sent letters to Ring

at two different addresses, both of which were marked “return

to sender; not deliverable as addressed.” (Doc. # 129-40 at

19).

Although Ring disputed the charges, the general

membership of BCYC voted to expel Ring from membership in

April 2019. (Doc. # 100-6). Ring has cited to evidence

suggesting that certain members of the club worked together

on a “script” of what they wanted to say in support of her

expulsion. (Doc. # 135-4; Doc. # 135-5).

Here, Ring has brought a retaliation claim under the

ADA. The ADA provides that “no person shall discriminate

against any individual because such individual has opposed

any act or practice made unlawful by [the ADA] or because

such individual made a charge . . . under [the ADA].” Stewart

v. Happy Herman’s Cheshire Bridge, 117 F.3d 1278, 1287 (11th

Cir. 1997) (quoting 42 U.S.C. § 12203(a)). Section 12203

provides remedies to individuals who have been retaliated

under Title I, Title II, or Title III of the ADA. 42 U.S.C.

§ 12203(c). See Higdon v. Jackson, 393 F.3d 1211, 1218 (11th

Cir. 2004) (noting that a plaintiff may assert a claim for

retaliation under the ADA outside of the employment context).

The ADA’s anti-retaliation provision, 42 U.S.C. §

12203(a), is similar to Title VII’s prohibition on

retaliation, Shannon v. Postmaster General of U.S. Postal

Service, 335 F. App’x 21, 26 (11th Cir. 2009), so Title VII

retaliation standards are permissibly imported into ADA

cases. Stewart, 117 F.3d at 1287. Under that standard, a

plaintiff must establish a prima facie case of retaliation to

avoid summary judgment. This showing contains three elements:

first, the plaintiff engaged in statutorily protected

conduct; second, the plaintiff suffered an adverse action;

and finally, the adverse action was causally related to the

protected expression. Farley v. Nationwide Mut. Ins. Co., 197

F.3d 1322, 1336 (11th Cir. 1999) (citing Stewart, 117 F.3d at

1287). Once a prima facie case has been established, the

defendant has the burden of articulating a legitimate

nondiscriminatory reason for the challenged decision. Farley,

197 F.3d at 1336. The plaintiff then must “demonstrate that

[she] will be able to establish at trial that the

[defendant’s] proffered non-discriminatory reasons are a

pretextual ruse designed to mask retaliation.” Id.

Even assuming that Ring’s complaint to the PCOHR

qualifies as statutorily protected conduct and that she

suffered an adverse action by being suspended and expelled

from BCYC membership, that leaves the question of whether the

actions were causally related.

The Supreme Court has stated that “mere temporal

proximity between . . . knowledge of protected activity and

an adverse . . . action . . . must be ‘very close.’” Clark

Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)

(citations omitted). The Court cited with approval decisions

in which a three- to four-month disparity was found to be

insufficient to show causal connection. See Id.

However, the rule of temporal proximity is “not

absolute.” Singleton v. Pub. Health Tr. of Miami-Dade Cty.,

725 F. App’x 736, 739 (11th Cir. 2018). Where, for example,

there was no evidence that a plaintiff’s employer’s adverse

action was motivated by the accommodations request, but the

evidence instead “overwhelmingly indicate[d] the [adverse

action] resulted from [plaintiff’s] inability to keep up with

the daily demands of his job,” the Eleventh Circuit determined

that an exception to the general rule of temporal proximity

was warranted. Id.

Here, there is no evidence of BCYC officers, board

members, or club members stating that they wished to suspend

or expel Ring from membership because she was seeking to

exercise her rights under the ADA by bringing a purported

service animal into the clubhouse or because she filed a

charge of discrimination with the PCOHR. True, it is apparent

from the record that BCYC felt Ring was jeopardizing its

ongoing lease negotiations with the City. But there is no

indication from the record that her filing the complaint with

PCOHR was causally related to later adverse events. Instead,

the only evidence linking these events is their temporal

proximity.

As an initial matter, there was a lag of more than three

months between when Ring filed her complaint with PCOHR in

January 2019 and when she was expelled in April 2019, and an

even longer gap between her expulsion and when she sought to

present Piper as a service animal in July 2018. A time gap of

this length is insufficient to show the requisite causal

connection. See Breeden, 532 U.S. 268, 273 (citing with

approval cases holding that a three or four month gap is

insufficient to show causal connection).

However, the Court is cognizant that there was less than

a month between the time Ring filed her complaint with PCOHR

in early January 2019 and when the board moved to suspend her

membership privileges on January 31, 2019. But even with this

close temporal proximity, in light of the other evidence in

the record regarding the reasons BCYC had to suspend Ring,

the Court believes that this case calls for an exception to

the general rule of temporal proximity. See Singleton, 725 F.

App’x at 739; see also Whatley v. Metro. Atlanta Rapid

Transit, 632 F.2d 1325, 1329 (5th Cir. 1980)(“The evidence

reveals . . . the dismissal was a culmination of problems

growing out of appellant’s manner of handling his job.”).

For a similar reason, even if Ring had met her burden of

proving a prima facie case of retaliation, BCYC has more than

met its burden of showing that it had legitimate and non-

discriminatory reasons for expelling Ring from membership.

The record reflects that, as far back as 2015, the club had

sought to expel Ring for various rule infractions and boorish

behavior. In addition, the motion for suspension demonstrates

that BCYC sought to expel Ring because she was living aboard

her boat without authorization, in violation of its Lease

with the City, was accused of using City electricity without

permission, and, in BCYC’s opinion, had provided false land-

based addresses.

Thus, BCYC had legitimate and non-discriminatory

reasons for expelling Ring. Ring has provided this Court with

no evidence demonstrating that these stated reasons were

pretextual — either directly by persuading the Court that a

discriminatory reason more likely motivated BCYC or

indirectly by showing that BCYC’s proffered explanations are

unworthy of credence. See Wofsy v. Palmshores Retirement

Cmty., 285 F. App’x 631, 634 (11th Cir. 2008). Indeed,

regarding Ring’s alleged false addresses, the record evidence

establishes that a club member disputed that she ever lived

at one provided address and mail sent to two other addresses

was returned as undeliverable. Ring has not met her burden of

demonstrating that BCYC’s reasons for expelling her were

pretextual.

Accordingly, BCYC is entitled to summary judgment on

Ring’s retaliation claim.

The Court also notes that causation is a necessary

element in both Title III and the FCRA, because FCRA

discrimination claims track the analysis used for ADA claims.

Title III of the ADA prohibits a public accommodation from

discriminating “on the basis of disability.” 42 U.S.C. §

12182(a). The Eleventh Circuit has interpreted this language

to establish a “but-for” causation standard for ADA claims.

Schwarz v. City of Treasure Island, 544 F.3d 1201, 1212 n.6

(11th Cir. 2008); McNely v. Ocala Star-Banner Corp., 99 F.3d

1068, 1073-77 (11th Cir. 1996) (discussing Titles I, II, and

IV of the ADA, and holding that “the ADA imposes liability

whenever the prohibited motivation makes the difference in

the employer’s decision”). That is, to succeed on an ADA

claim, a plaintiff must show that the defendant’s

discriminatory actions would not have occurred but for the

plaintiff's disability.

For the reasons previously described, Ring has not

demonstrated a reasonable dispute of material fact on the

issue of whether BCYC’s suspension and expulsion would not

have occurred but for her disability. The record demonstrates

that BCYC had many reasons for wanting to expel Ring,

including that she had a pattern of violating club rules, was

endangering their Lease with the City or, perhaps, was plainly

disliked by many members. None of this establishes, however,

that BCYC acted against Ring because of her disabilities.

Thus, her Title III and FCRA claims for disability

discrimination fail for this reason as well. See Estate of

Smith v. Forest Manor, Inc., No. 7:16-CV-01774-RDP, 2018 WL

2770203, at *9 (N.D. Ala. June 8, 2018) (granting summary

judgment to defendant on Title III claim where the “undisputed

Rule 56 evidence demonstrates that Forest Manor personnel had

a reason other than Smith’s disability for not installing

foot rests on her wheelchair and not using a lap restraint”).

Accordingly, BCYC is entitled to summary judgment on all

of Ring’s claims.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Boca Ciega Yacht Club’s Motion for Summary

Judgment (Doc. # 122) is GRANTED. Plaintiff Samantha

Ring’s Motion for Summary Judgment (Doc. # 128) is

DENIED.

(2) The Clerk is directed to enter judgment in favor of Boca

Ciega Yacht Club and against Plaintiff Samantha Ring on

all counts of the complaint.

(3) Thereafter, the Clerk is directed to CLOSE THE CASE.

DONE and ORDERED in Chambers in Tampa, Florida, this

27th day of March, 2020.

fan 9D. Mewmby ney,

VIR TA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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