United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
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.
Allegations of the Second Amended Complaint
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
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).
January 2, 2019,  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).
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
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).
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).
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).
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). 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.”
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.).
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 judge closed Ring's case before the
DOAH on August 23, 2019, and “relinquished”
jurisdiction to the PCOHR. (Doc. # 42-3).
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. #
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).
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).
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).
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).
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).
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.
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).
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).
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
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).
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).