Can a Florida city reserve a public softball field for women's teams only?

Plain-English summary

The Village of Palmetto Bay asked two questions: could it make a municipal softball field available only to female athletes, and is a municipal park a "public accommodation" under the Florida Civil Rights Act of 1992 (Chapter 760)? The Attorney General limited his discussion to Florida law (declining to address the federal ADA or local ordinances, though he used the ADA by analogy).

On the first question, Attorney General Bill McCollum concluded that the Act would prohibit the village from reserving a softball field for women only. Section 760.08 guarantees all persons full and equal enjoyment of any "place of public accommodation" without discrimination on the basis of sex, and section 760.02(11) defines public accommodations to include a "sports arena, stadium, or other place of exhibition or entertainment." Read liberally, as the Act directs, a municipal athletic field is such a place. Making it exclusively available to women would be sex discrimination at a public accommodation. The AG drew one careful line: this does not mean girls' softball games cannot be scheduled exclusively at a particular field, so long as boys' teams also have the opportunity to schedule use of the park. The problem is categorical exclusion of one sex, not gender-specific scheduling that leaves both sexes access.

On the second question, the AG said a municipal park may be a public accommodation as a place of exhibition or entertainment, but whether a particular park qualifies depends on facts (how the park is used, whether it has a stadium or arena, whether food is served, and so on). Those are mixed questions of law and fact the office cannot resolve, so it could not give a single answer for all parks.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Common questions

Q: Can a city reserve a public ballfield for women only?
A: Per this opinion, no. The AG read the Florida Civil Rights Act to treat a municipal softball field as a public accommodation, so excluding men or boys from it would be unlawful sex discrimination under section 760.08.

Q: Does that mean girls' and boys' games can't have separate fields?
A: No. The AG specifically said girls' softball games can be scheduled exclusively at a particular field, provided boys' teams also have the opportunity to schedule use of the park. The line is between gender-specific scheduling (allowed) and total exclusion of one sex from the facility (not allowed).

Q: Is a municipal park always a "public accommodation"?
A: Not automatically. The AG said a park may qualify as a place of exhibition or entertainment, but whether a specific park does depends on facts like its uses and features. That is a mixed question of law and fact the office could not resolve in the abstract.

Q: Who can enforce a violation?
A: The opinion noted that violations give rise to the remedies in section 760.11(5), and a claim may be brought by the aggrieved person, the Commission on Human Relations, or the Florida Attorney General.

Background and statutory framework

The Florida Civil Rights Act of 1992 (sections 760.01-760.11 and 509.092) is to be liberally construed to secure freedom from discrimination, including on the basis of sex (section 760.01(2)-(3)). Section 760.08 entitles all persons to full and equal enjoyment of any place of public accommodation, and section 760.02(11) defines public accommodation to include sports arenas, stadiums, and other places of exhibition or entertainment. The AG looked to ADA case law by analogy, noting that courts have treated stadiums and golf courses as public accommodations (Stoutenborough v. NFL, 1994 U.S. Dist. Lexis 21279 (N.D. Ohio 1994); Martin v. PGA Tour, Inc., 204 F.3d 994 (9th Cir. 1999)), while cautioning that ADA Title III applies only to private entities (Bloom v. Bexar County, 130 F.3d 722 (5th Cir. 1997)). Remedies for a Florida Civil Rights Act violation are set out in sections 760.07 and 760.11.

Citations

Statutes

• ss. 760.01-760.11, Fla. Stat. (Florida Civil Rights Act of 1992)
• s. 760.02(11), Fla. Stat. (public accommodation definition)
• s. 760.08, Fla. Stat. (prohibition on discrimination in public accommodations)
• s. 760.07, s. 760.11, Fla. Stat. (remedies)
• 42 U.S.C. s. 12181 (ADA, cited by analogy only)

Cases

• Bloom v. Bexar County, 130 F.3d 722 (5th Cir. 1997) (ADA Title III limited to private entities)
• Martin v. PGA Tour, Inc., 204 F.3d 994 (9th Cir. 1999) (golf course a public accommodation)
• Stoutenborough v. NFL, 1994 U.S. Dist. Lexis 21279 (N.D. Ohio 1994) (stadium a public accommodation)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/discrimination-softball-field-use-ltd-to-women
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1804

Original opinion text

Ms. Eve A. Boutsis

Village Attorney

Village of Palmetto Bay

18001 Old Cutler Road

Suite 556

Miami, Florida 33157-6416

RE: MUNICIPALITIES – DISCRIMINATION – PUBLIC ACCOMMODATIONS – FLORIDA CIVIL RIGHTS ACT – whether municipality can restrict use of softball field to one gender; municipal parks as "public accommodations." ss. 760.02, 760.07, and 760.08, Fla. Stat.

Dear Ms. Boutsis:

On behalf of the Village of Palmetto Bay, you have asked for my opinion on substantially the following questions:

1. Would Chapter 760, Florida Statutes, preclude the Village of Palmetto Bay from making a municipal softball field exclusively available to female athletes?

2. Would a municipal park be considered a public accommodation within the meaning of that term in section 760.08, Florida Statutes?

Initially, I must advise you that this office will not comment on either federal legislative provisions or local codes or ordinances which may deal with these subjects.[1] The discussion of your questions is limited to a consideration of the provisions of Chapter 760, Florida Statutes.

Question One

Sections 760.01-760.11 and 509.092, Florida Statutes, constitute the "Florida Civil Rights Act of 1992."[2] The Legislature has provided a statement of intent for enactment of this legislation in section 760.01(2):

"The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state."

The act is to be "construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provision involved."[3]

Section 760.08, Florida Statutes, prohibits discrimination in "places of public accommodation" as follows:

"All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this chapter, without discrimination or segregation on the ground of race, color, national origin, sex, handicap, familial status, or religion."

"Public accommodations" are defined for purposes of the Florida Civil Rights Act to include "[a]ny motion picture theater, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment" that serves the public.[4] A municipal softball field would appear to be a "public accommodation" as a "place of exhibition or entertainment" within the scope of section 760.02(11), Florida Statutes. Violations of statutes that make it unlawful to discriminate on the basis of race, color, religion, gender, national origin, age, handicap, or marital status in the areas of education, employment, housing, or public accommodations will give rise to a cause of action for the remedies and damages described in section 760.11(5), Florida Statutes, and may be filed by the person aggrieved, the Commission on Human Relations, or the Florida Attorney General.[5]

Like Florida's Civil Rights Law, the Federal Americans With Disabilities Act (ADA)[6] prohibits discrimination against persons with handicaps within "public accommodation[s]." A "public accommodation" is a facility within one of twelve designated categories. For purposes of the Americans With Disabilities Act, "public accommodation[s]" include:

"(1) places of lodging;

(2) establishments serving food or drink;

(3) places of exhibition or entertainment;

(4) places of public gathering;

(5) sales or rental establishments;

(6) service establishments;

(7) stations used for specified public transportation;

(8) places of public display or collection;

(9) places of recreation;

(10) places of education;

(11) social service center establishments; and

(12) places of exercise or recreation."[7]

While this list of categories is declared to be exhaustive by the statute, the representative examples of facilities within each category is not. Cases decided under the ADA have held that stadiums and golf courses at which sporting activities take place fall within the protections of the act.[8]

Similarly, Florida's Civil Rights law guarantees full and equal enjoyment of "the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation" to all persons without discrimination on the basis of sex. The Florida Legislature has expressed its intent that the statute is to be liberally construed. While Florida's statute does not specifically include places of exercise or recreation as does the ADA, it does include stadiums, sports arenas, and other places of exhibition or entertainment. A liberal reading of the definition of a public accommodation in section 760.02(11), Florida Statutes, could easily include a municipal athletic field and a reading of section 760.08, Florida Statutes, that includes municipal athletic fields within the scope "public accommodations" would appear to advance and accomplish the purposes of the act.

In sum, it is my opinion that the provisions of the Florida Civil Rights Act would prohibit the Village of Palmetto Bay from making a municipal softball field exclusively available to female athletes as any such action would constitute discrimination on the basis of sex or gender in the area of public accommodation. However, this conclusion should not be read to suggest that activities like girls' softball games cannot be scheduled exclusively at a particular athletic field so long as opportunities exist for boys' teams to also schedule use of the park.

Question Two

You also ask whether a municipal park may constitute a "public accommodation" for purposes of the Florida Civil Rights Act. As discussed in my response to Question One, a municipal park may constitute a "public accommodation" as it could be seen to constitute a place of exhibition or entertainment within the scope of section 760.02(11), Florida Statutes. However, resolution of this question in a particular instance will require the municipality to make factual determinations based on the uses to which this property is put, such as whether the park is used for entertainment or exhibition, whether the park includes a sports arena or stadium, whether food may be served on park grounds, etc. This office has no authority to resolve mixed questions of law and fact and cannot provide you with a definitive response to this question that would apply to all situations.

Sincerely,

Bill McCollum

Attorney General

BM/tgh

[1] See Miami-Dade County Code of Ordinances, Chapter 11A "Discrimination," Article III, "Public Accommodation."

[2] See s. 760.01(1), Fla. Stat., providing the short title for the act.

[3] Section 760.01(3), Fla. Stat.

[4] Section 760.02(11)(c), Fla. Stat.

[5] Sections 760.07 and 760.11(1), Fla. Stat.

[6] 42 U.S.C.S. s. 12101 et seq.

[7] This abbreviated list may be found at Am. Jur. 2d Americans with Disabilities Act Analysis and Implications s. 632, analyzing and commenting on the provisions of 42 U.S.C.S. s. 12181(7). I would note that under the ADA "public accommodations" within the scope of the statute are limited to private entities – Title III of the ADA does not apply to public entities. See Bloom v. Bexar County, 130 F.3d 722 (U.S.C.A. 5th Cir. 1997); and 42 U.S.C.S. s. 12181(6), defining a private entity subject to the act as "any entity other than a public entity[.]"

[8] Stoutenborough v. NFL., 1994 U.S. Dist. Lexis 21279; 3 Am. Disabilities Cas. (BNA) 537 (U.S. Dist. Ct., N.D. Ohio, Eastern Div. 1994) ("it is undisputed that a stadium in which football games are played meets the statutory definition of a public accommodation."); Martin v. PGA Tour, Inc., 204 F.3d 994 (U.S. Ct. App. 9th Cir. Or., 1999) (golf course is a place of public accommodation, including both spectators' and competitors' areas during PGA tournament).