Schwarz et al v. Board of Supervisors et al
Filing
189
AMENDED ORDER dismissing, with prejudice, the claims raised by Plaintiff Patricia Smart against Defendants; granting Defendants, the Village Center Community Development District and Sumter Landing Community Development District's Motion for Summary Judgment; terminating, as moot, 155 and 164 Motions in Limine; granting, in part, and denying, in part, Defendant, the Villages Charter School, Inc. Motion for Summary Judgment. The Clerk of the Court is directed to enter judgment in accordance with this Order. Signed by Judge Marcia Morales Howard on 2/29/2016. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
LOUIS SCHWARZ, et al.,
Plaintiffs,
vs.
Case No. 5:12-cv-177-Oc-34PRL
THE VILLAGES CHARTER SCHOOL, INC.,
d/b/a The Villages Lifelong Learning College,
et al.,
Defendants.
_____________________________________/
AMENDED ORDER
THIS CAUSE comes before the Court as a disability discrimination action brought
pursuant to Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq.,
the Fair Housing Act (“FHA”), 42 U.S.C. § 3603, et seq., and section 504 of the
Rehabilitation Act (“RA”), 29 U.S.C. § 794, et seq. Plaintiffs are thirty-two deaf persons1 who
are residents of The Villages, a retirement community located in Florida. On October 18,
1
Plaintiffs are Louis Schwarz, Doris Schwarz, Janice Hickey, Thomas Hickey, Bernie Brown, Elizabeth
Holst, Stephen Holst, Joanna Langlais, Francis Langlais, Robert Smart, Richard McElwain, Byron Zimmerman,
Shirley Zimmerman, John Wilson, Charles Martin, Randall Walker, Evelyn Walker, Maureen Osgood, Carole
Paul, Mary Kay Pickering, Andrew St. John, Karen Russell, Clarence Russell, Richard Woods, Linda Woods,
Robert McDevitt, Lynn Stirling, Kathleen McElwain, Herbert Pickering, Barbara Achin, Ronald Achin, Diane St.
John, Kenny Hynes, and Mary Wilson. See Third Amended Complaint at 1-2 (Doc. 93).
Plaintiff Patricia Smart passed away on July 16, 2012, and on August 14, 2013, Plaintiffs filed Plaintiffs
[sic] Suggestion of Death of Patricia Smart (Doc. 84; Suggestion of Death). Because more than 90 days have
passed since Plaintiffs filed the Suggestion of Death, and Plaintiffs have not filed a motion for substitution of the
proper party pursuant to Rule 25, Federal Rules of Civil Procedure, Patricia Smart is due to be dismissed from
this action. See Rule 25(a)(1).
On December 10, 2014, the parties filed a Stipulated Motion for Dismissal with Prejudice (Doc. 117)
as to Plaintiff Carole Paul, and on December 12, 2014, the Court entered an order dismissing the claims raised
by Carole Paul against Defendants (Doc. 119). On February 24, 2015, the parties filed a Stipulated Motion for
Dismissal with Prejudice (Doc. 129) as to Plaintiff Joanna Langlais, and on February 25, 2015, the Court entered
an order dismissing the claims raised by Plaintiff Joanna Langlais against Defendants (Doc. 130).
2013, Plaintiffs filed a Third Amended Complaint (Doc. 93; Complaint) against Defendants,
the Village Center Community Development District, Sumter Landing Community
Development District, and The Villages Charter School, Inc. d/b/a/ The Villages Lifelong
Learning College, generally asserting that Defendants have failed to provide sign language
interpreters or other reasonable accommodations so that Plaintiffs can fully enjoy and
participate in Defendants’ programs, activities, and services. See generally Complaint. The
matter is presently before the Court on Defendants, the Village Center Community
Development District and Sumter Landing Community Development District’s Motion for
Summary Judgment, with Incorporated Memorandum of Law (Doc. 131; Motion), filed on
March 14, 2015, and Defendant, The Villages Charter School, Inc. d/b/a the Villages Lifelong
Learning College’s Motion for Summary Judgment and Memorandum of Law (Doc. 132;
Motion), filed on March 16, 2015. On April 13, 2015, Plaintiffs filed Plaintiffs’ Memorandum
of Law in Opposition to Defendants, the Districts’ Motion for Summary Judgment (Doc. 140;
Response) and Plaintiffs’ Memorandum of Law in Opposition to Defendant, The Villages
Charter School Inc.’s Motion for Summary Judgment (Doc. 141; Response).2
On September 2, 2015, the Court held the Final Pretrial Conference, during which the
Court heard oral argument by counsel on the Motions for Summary Judgment, see Clerk’s
Minutes (Doc. 177; Clerk’s Minutes). At the Final Pretrial Conference, the Court ordered
2
The Court will address Defendants, the Village Center Community Development District and Sumter
Landing Community Development District’s Motion for Summary Judgment, with Incorporated Memorandum
of Law (Doc. 131) in Section I of this Order, before turning to Defendant, The Villages Charter School, Inc. d/b/a
the Villages Lifelong Learning College’s Motion for Summary Judgment and Memorandum of Law (Doc. 132)
in Section II. Because there is no overlap in analysis between the two motions, the “Motion” and “Response”
cited in Section I will refer to Docs. 131 and 140, and the “Motion” and “Response” cited in Section II will refer
to Docs. 132 and 141.
-2-
supplemental briefing from Plaintiffs and Defendant The Villages Charter School, Inc. Id.
As such, at the Court’s direction, Defendant The Villages Charter School, Inc., filed
Defendant, The Villages Charter School, Inc., d/b/a The Villages Lifelong Learning College’s
Supplemental Briefing in Support of its Motion for Summary Judgment and Incorporated
Memorandum of law (Doc. 179; Defendant’s Supplement) and Plaintiffs filed Plaintiffs’
Supplemental Brief (Doc. 180; Plaintiffs’ Supplement). Accordingly, the matter is ripe for
review.
I.
Defendants, the Village Center Community Development District and Sumter
Landing Community Development District’s Motion for Summary Judgment,
with Incorporated Memorandum of Law (Doc. 131)
A.
Background
The Villages is a residential community designed and managed for retired residents
aged 55 and older. It has over 100,000 residents and over 50,000 single-family homes.
See Affidavit of Deborah Franklin ¶ 2 (Doc. 131-2; Franklin Aff.). The Villages is comprised
of 15 community development districts, which are governmental entities created pursuant
to Florida Statute section 190.01, et seq. See Affidavit of Janet Y. Tutt ¶ 3 (Doc. 131-1; Tutt
Aff.).3 The defendants in this action, the Village Center Community Development District
3
Florida Statute section 190.003 defines a “community development district” as the following:
a local unit of special-purpose government which is created pursuant to this act and limited to
the performance of those specialized functions authorized by this act; the governing head of
which is a body created, organized, and constituted and authorized to function specifically as
prescribed in this act for the purpose of the delivery of urban community development services;
and the formation, powers, governing body, operation, duration, accountability, requirements
for disclosure, and termination of which are as required by general law.
FLA. STAT. § 190.003(6).
-3-
(“the VCCDD”) and Sumter Landing Community Development District (“SLCDD”) (together,
“the Districts”), are the two primary residential districts in The Villages.
1.
The Village Center Community Development District and Sumter
Landing Community Development District
Both the VCCDD and SLCDD are local units of a special purpose government. Tutt
Aff. ¶ 3. As such, the Districts must adhere to the same Florida Statutes and Administrative
Codes as any municipality. Id. Janet Tutt (“Tutt”) is the District Manager for the Districts
and an employee of the VCCDD. Id. ¶ 2. As District Manager, Tutt is the Chief Operating
Officer for the Districts and is appointed by the VCCDD Board of Supervisors, which is
elected by landowners in The Villages. Id. ¶ 7. As the governmental structure of the
Districts is similar to that of a Florida city, Tutt’s position is “essentially equivalent of that of
a City Manager[,]” making her the Districts’ decision-maker. Motion at 4.
The Districts are not to be confused with the Developer of The Villages, The Villages
of Lake Sumter, Inc. Tutt Aff. ¶ 4. As a for-profit corporation, the Developer is a private
entity and is the entity that sells homes to residents of The Villages. Id.
2.
The Districts’ Recreation Department
The Districts have numerous departments, which include, but are not limited to,
Human Resources, Public Safety, Finance, Property Management, and Recreation. Tutt Aff.
¶ 3; Exhibit A to Tutt Affidavit (Doc. 131-1; Tutt Aff., Ex. A). Through the Recreation
Department, the Districts provide a vast array of recreational facilities for use by residents
and their guests and which include 33 executive golf courses, 45 Neighborhood Recreational
Centers, 23 Village Recreational Centers, and 9 Regional Recreational Centers. Tutt Aff.
-4-
¶¶ 8-9; see also Exhibit C to Tutt Affidavit (Doc. 131-1, Exhibit C; Tutt Aff., Ex. C). The
Recreation Department also provides residents with over 70 pools, numerous tennis and
pickle ball courts, and many other facilities. Tutt Aff. ¶ 8. The Districts’ Recreation
Department has approximately 483 employees, the majority of whom work at recreation
centers throughout The Villages. See Affidavit of John B. Rohan ¶ 3 (Doc. 131-5; Rohan
Aff.).
3.
The Amenities Fees
All property owners in The Villages pay a monthly amenities fee, which is set forth in
the Declaration of Restrictions applicable to each resident’s property. Tutt Aff. ¶ 5; see
also Exhibit B to Tutt Affidavit at 4 (Doc. 131-1, Exhibit B; Tutt Aff., Ex. B). The Declaration
of Restrictions provides that “[t]he Developer or its designee shall perpetually provide the
recreational facilities” and that “[e]ach Owner hereby agrees to pay the Developer, or its
designee, a monthly fee or charge (‘Amenities Fee’) against each Lot for [the recreational]
services described . . . above[.]” See Tutt Aff., Ex. B ¶¶ 4.1(a), 4.2. The Districts, through
issuance of bonds, purchase the Amenities Fee revenue stream and related infrastructure
from the Developer. Tutt Aff. ¶ 6. Thus, the designee referenced above in the Declaration
of Restrictions is the Districts after the transfer of the Amenities Fee revenue stream. Id.;
see also Deposition of John Rohan dated July 17, 2014 at 37-38 (Doc. 144-5; Rohan Dep.
II) (testifying that “The Villages pay [A]menities [F]ees” and that “those [A]menities [F]ees
ultimately go to the [D]istricts”). Approximately 93% of the VCCDD’s revenue comes from
Amenities Fees. Tutt Aff. ¶ 6.
-5-
The Amenities Fees paid by homeowners in The Villages are used for Recreation
Department facilities, as well as non-structural expenditures including the volunteer
appreciation event, parades, and social events. See Deposition of John Rohan dated June
27, 2014 at 32 (Doc. 144-4; Rohan Dep. I); Deposition of Janet Tutt dated January 29, 2015
at 12 (Doc. 144-3; Tutt Dep. II); Rohan Dep. II at 38. The Amenities Fees also pay for
handicap ramps for the various recreational facilities. Tutt Dep. II at 18-19. The allocation
of the Amenities Fees are structured this way because the Districts own the Recreation
Department facilities, and the purpose of the revenue stream is to operate and maintain
those facilities for the benefit of the residents. Id. at 19.4
4.
The Resident Lifestyle Groups
The Resident Lifestyle Groups (“RLG” or “RLGs”) are the predominant users of the
Recreation Department facilities. Tutt Aff. ¶ 9. The RLGs are comprised of over 2,000 clubs
covering a wide range of interests such as card clubs, education clubs, numerous and varied
exercise clubs, multiple AA support groups, college alumni groups, theatrical and musical
groups, and much more. See Company Listing Report (Detail) (Doc. 131-40). RLGs are
created by “resident volunteers”, also called “group leaders” (hereinafter referred to as “RLG
volunteer(s)”). Tutt Aff. ¶ 10. Only residents of The Villages are permitted to become RLG
volunteers and to create RLGs. Rohan Aff. ¶ 4; see also Deposition of Pam Henry at 21
(Doc. 144-1; Henry Dep.). Likewise, only residents of The Villages are able to join RLGs as
members. Henry Dep. at 41; Tutt Dep. I at 49. Nonresidents may not do so because
4
Tutt testified that “[t]he recreation facilities are owned by the Village Center District” and that “[t]he .
. . revenue stream . . . was purchased by the Village Center District[.]” Tutt Dep. II at 19.
-6-
residents of The Villages pay Amenities Fees, and the Amenities Fees are used to support
the RLGs’ use of Recreation Department facilities. Henry Dep. at 21-22, 41-42; Tutt Dep.
I at 49-50.5 As such, RLGs do not have to pay a rental fee to use the Recreation
Department facilities. Tutt Dep. I at 50. The general public and groups from outside The
Villages are permitted to use Recreation Department facilities, but are required to pay a
rental fee. Id.
i.
Formation of a Resident Lifestyle Group
The Recreation Department encourages residents to form RLGs. Tutt Aff. ¶ 11; see
Rohan Column (“Many Recreation Changes”) (Doc. 144-4, Exhibit 4; Rohan Column (“Many
Recreation Changes”));6 Rohan Column (“New year full of new possibilities”) (Doc. 144-4,
Exhibit 6; Rohan Column (“New year full of new possibilities”));7 Districts’ Website Flyer
(Doc. 144-1, Exhibit 1; Districts’ Website Flyer).8 A resident initiates the application process
5
Additionally, “[t]he recreation centers are outfitted with equipment and supplies for residents to use.”
Rohan Dep. I at 75.
6
In this column, Rohan announces the opening of a new recreation center and indicates that recreation
staff “is putting out the all-call to any resident who would love to volunteer by leading an activity for your fellow
residents.” Rohan Column (“Many Recreation Changes”). He writes, “If you are interested or would like to know
more about being a volunteer for the Recreation Department, please contact Pam Henry at 753-1716 or
pam.henry@districtgov.org.” Id.
7
In this column, Rohan writes,
To help us grow, we are always trying to recruit residents to become part of our resident
lifestyle volunteer team to assist us in providing activities. If you love our core values of
hospitality, creativity and innovation, hard work and stewardship, please contact any recreation
center manager to learn more. We would love to have you on our team.
Rohan Column (“New year full of new possibilities”).
8
This flyer lists the steps to create an RLG. See Districts’ Website Flyer. It also states,
With your help, we look forward to the opportunity to enhance our lifestyle services.
(continued...)
-7-
for an RLG by completing a Resident Survey Request Form and a Volunteer Application and
submitting these documents to the Recreation Department. Henry Dep. at 10; see also
Exhibit B to Rohan Affidavit at 3 (Doc. 131-5, Exhibit B; Rohan Aff., Ex. B). The Resident
Survey Request Form solicits information including a description of the proposed club, the
club’s leader, the club’s preferred meeting location, and the club’s preferred meeting time.
Henry Dep. at 10; see also Rohan Aff., Ex. B at 13.9
The record contains two versions of the Volunteer Application which differ
substantially.
The earlier version is dated October 4, 2011, and labeled “Volunteer
Application Sheet.” See Exhibit C to Rohan Affidavit at 14-15 (Doc. 131-5, Exhibit C; Rohan
Aff., Ex. C). This version solicits the applicant’s name; the applicant’s emergency contact;
the reason why the applicant wants to volunteer; information about the applicant’s most
recent volunteer experience; special skills, training, and experience; and references. See
Rohan Aff., Ex. C at 14-15.10 The older version of the application also includes a section
8
(...continued)
VCDD Recreation
See id.
9
The record contains an earlier version of the Resident Survey Request Form which does not
substantively differ from the more recent version. See Exhibit C to Rohan Aff. at 13 (Doc. 131-5, Exhibit C).
10
John Rohan, the Recreation Director for the VCCDD and SLCDD, testified that even though the
earlier version of the Volunteer Application “says the word application on it”, the document was meant to “gather[
] information about the resident.” Rohan Dep. I at 7-8, 19, 29. Rohan also explained that with the question
asking why the applicant wants to volunteer, the Recreation Department intended to give the applicant an
“individual checklist” to make sure they want to “run their activities for other residents.” Id. at 21-22.
Additionally, Rohan testified that in asking for applicants’ availability, this question was “really for the residents
to know when they’re available.” Id. at 23. Rohan further testified that he does not check references and is not
sure if anyone in his department calls references. Id. at 24; see also Rohan Aff. ¶ 15 (testifying that “[t]he
Recreation Department does not approve the group leader, other than making certain the person is a resident
of [T]he Villages”). Pam Henry, the Recreation Manager for the RLGs, also testified that although the
application asks for references, they “generally do not call the references.” Henry Dep. at 6, 15.
(continued...)
-8-
labeled “Applicant Statement” which required the applicant to check off the following
statement, “Should my application be accepted, I agree to be bound by the resident lifestyle
guidelines and to refrain from any misconduct in the performance of my services on behalf
of the VCDD Recreation Department.” Rohan Aff., Ex. C at 15.11
A more recent version of the Volunteer Application is dated December 6, 2013, and
November 10, 2014, and labeled, “Volunteer Information Sheet[.]” See Rohan Aff., Ex. B
at 14. Unlike, the older version of the Volunteer Application, this document does not request
references; information about why the applicant wants to volunteer; the applicant’s most
recent volunteer experience; or the applicant’s special skills, training, and experience. Id.
Additionally, it does not have an “Applicant Statement” section, so the applicant is not
required to check off the statement quoted above regarding “refrain[ing] from any
misconduct in the performance of my services on behalf of the VCDD Recreation
Department.” Id.
10
(...continued)
In his Affidavit, Rohan further explained:
Prior Resident Lifestyle Volunteer documents, which have been recently
rewritten, required the person seeking to be a group leader to fill out a
volunteer application sheet providing information regarding volunteer
experience, references and skills and training. . . . The information requested
by this form was never checked, nor was a resident ever denied group leader
status because of the information, or lack thereof, provided. This form should
no longer be used for Resident Lifestyle Volunteers, though a version of it
remains in use for true volunteers, that is individuals who volunteer to assist
during Recreation Departments sponsored activities.
Rohan Aff. ¶ 15. Plaintiffs have submitted no evidence disputing Rohan’s characterization of the Volunteer
Application.
11
When asked whether RLG volunteers are “performing services on behalf of the VCDD recreation
department”, Rohan testified that “[n]o, they’re performing on behalf of themselves and the clubs” and admitted
that “the words may not be absolutely correct” but that “the intent was to protect the district, the staff and the
employees and the use of the facilities.” Rohan Dep. I at 25-26.
-9-
Once an applicant completes the Volunteer Application and Resident Survey Request
Form, the Recreation Manager for the RLGs, Pam Henry,12 and her supervisor, the
Recreation Director for the VCCDD and SLCDD, John Rohan, review these documents for
approval. See Henry Dep. at 10. Rohan testified that as part of the RLG application
process, “[t]he Recreation Department does review the activity being promoted by the club
to make certain that it is legal, is being organized by and for Villages residents, is not
unreasonably duplicative of existing clubs, and is not a guise for proprietary activity.” Rohan
Aff. ¶ 6. Similarly, Henry testified that if an application for a new RLG is not approved it is
“because there’s plenty of them already and there’s space available in those clubs or
activities.” Henry Dep. at 11.
Once Henry and Rohan approve the forms, the Resident Survey Request Form is
published for two weeks in the Recreation News,13 a media outlet published by The Villages
Media and paid for by the Recreation Department, to gauge residents’ interest level. Henry
Dep. at 11, 18-19; see also Rohan Aff., Ex. B at 3. The prospective RLG volunteer is listed
as the contact person for the Resident Survey Request Form and in that capacity, receives
and tallies the responses. See Exhibit 1 to Rohan Dep. I (Doc. 144-4, Exhibit 1; Rohan Dep.
I, Ex. 1); Henry Dep. at 11. After the two-week survey is completed, the prospective RLG
volunteer meets with Henry to determine whether there is sufficient interest to establish the
12
Rohan testified that approximately 60 percent of Henry’s work is “interfac[ing] and facilitat[ing]” the
RLGs, while the other 40 percent is devoted to other activities of the Recreation Department, including
“[p]lanning other senior games, Camp Villages, working with our facility folks[,] and working with supervisors.”
Rohan Dep. II at 80-81. The senior games and Camp Villages are District-sponsored events. Id. at 18-19.
13
The Recreation News is printed every Thursday as a supplement of the Villages Daily Sun
newspaper. See Rohan Column (“Many Recreation Changes”). It is “by far . . . the most up to date information
of all the activities taking place at” the recreation centers. Id.
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proposed RLG. Henry Dep. at 11; Rohan Dep. I, Ex. 1. If Henry, at Rohan’s direction,
determines that there is sufficient interest, she approves the Resident Survey Request Form
and meets with the RLG volunteer to discuss meeting space and times. Henry Dep. at 13;
Rohan Aff., Ex. B at 3. After Henry and the RLG volunteer agree on a meeting space and
time, they meet again to review the Resident Lifestyle Volunteer Guidelines and to sign a
facility permit, which Henry describes as a “room contract” to keep that meeting day, time,
and location. Henry Dep. at 14; Rohan Dep. I, Ex. 1; see generally Rohan Aff., Ex. B.14
Once an RLG is formed, the RLG volunteers lead the RLG, reserve rooms for the
RLG at the recreation facilities at no charge, and act as the contact person with the
Recreation Department. Rohan Aff. ¶¶ 4, 14. Additionally, RLG volunteers can advertise
the meeting times and places for their RLG in the Recreation News. Henry Dep. at 14.15
14
According to Henry, once RLGs are established, the RLGs meet in the Recreation Department
facilities, and at that point, RLG volunteers’ “day-to-day interactions” are with the recreation services
representatives at the regional centers to address issues like making changes to the RLGs’ meeting day, time,
or location, or other special requests. Henry Dep. at 9. These requests then go to Henry for approval. Id.
15
Plaintiffs, in the Response, and counsel for Plaintiffs, at oral argument, assert that the RLGs are
created under and encompassed by the Districts’ “Resident Lifestyle Volunteer Program.” However, nothing
that Plaintiffs cite supports their position that the RLGs are subsidiary to a larger organization or program called
the “Resident Lifestyle Volunteer Program.” For example, in their recitation of the facts, Plaintiffs assert that
“[t]he Districts survey residents’ interest in the establishment of certain activities and have final approval of
whether the activity will become part of their Resident Lifestyle Volunteer Program (“Program”)” and cite Henry’s
deposition. Response at 8. In the cited portion of her deposition, Henry explains the approval process for
prospective RLGs. See Henry Dep. at 11-13. Nowhere does Henry mention the existence of a “Program.”
Additionally, Plaintiffs include in the Response an illustration which they assert, based on the “documentary
evidence”, represents the structure of the Districts. Id. at 7-8 n.3. This illustration is a triangle, with “The
Districts” at the top, “The Recreation Department” below that, “Resident Lifestyle Volunteer Program” below that,
and “Resident Lifestyle Groups” at the bottom. Id. Plaintiffs include no citations in support of this illustration.
Plaintiffs further assert that the “Resident Lifestyle Activities are part of the Districts’ recreational activities
operations, and are created under the Program.” Id. at 9. In support of this statement, Plaintiffs cite the
Resident Lifestyle Volunteer Guidelines and supporting documents attached to the Complaint. See Doc. 93-1.
Nowhere do these documents reference a “Resident Lifestyle Volunteer Program.” As additional support for
this statement, Plaintiffs cite Tutt’s deposition and Exhibit 6 attached to Tutt’s deposition. Exhibit 6 contains
no reference to a “Resident Lifestyle Volunteer Program.” See Exhibit 6 to Tutt Dep. II (Doc. 144-3, Exhibit 6).
Plaintiffs also cite another portion of Tutt’s deposition and Exhibit 7. Exhibit 7 is a letter dated October 19, 2009,
(continued...)
-11-
ii.
Resident Lifestyle Volunteer Guidelines
One of Rohan’s duties is to make sure that RLG volunteers are “compliant” with the
Resident Lifestyle Volunteer Guidelines. Rohan Dep. I at 65; see Rohan Aff., Ex. B; Rohan
15
(...continued)
written by Tutt to a woman named Ellen Rainhart. See Exhibit 7 to Tutt Dep. II (Doc. 144-3, Exhibit 7; Tutt Dep.
II, Ex. 7). In this letter, Tutt informs Ellen Rainhart that “[i]t is strictly against the Resident Council Guidelines
[now known as the Resident Lifestyle Volunteer Guidelines] to charge any fee, donation or contribution for your
time or services” and that she cannot collect any type of “instructional fee.” Id. The only reference to the word
“program” in this letter is the following sentence: “The Resident Council Guidelines provide the operating
guidelines and expectation for our participants and volunteers included in the variety of recreation activities and
programs offered.” Id. Plaintiffs also cite Exhibit 6 to Rohan’s deposition and Exhibit 9 to Henry’s deposition.
Exhibit 6 to Rohan’s deposition is cited in the body of this Order, see supra at 7, and contains no reference to
the “Resident Lifestyle Volunteer Program.” See Rohan Column (“New year full of new possibilities”). Exhibit
9 to Henry’s deposition is an article in which Henry is quoted saying, “My primary responsibility is creation,
implementation and oversight of the over 2,000 volunteers leading clubs and activities. . . . I also have oversight
of all programs/activities that recreation staff manages; i.e., special events, socials, sports, pool programming,
leagues, et cetera.” See Exhibit 9 to Henry Dep. (Doc. 144-1, Exhibit 9; Henry Dep, Ex. 9). The Court,
therefore, declines to give credence to Plaintiffs’ argument that the Districts operate a program called the
“Resident Lifestyle Volunteer Program” or that the individual activities of each RLG are a program of the Districts
because such activities are part of an overall “Resident Lifestyle Volunteer Program” operated by the Districts.
Moreover, Plaintiffs’ imprecise use of record citations in support of its assertions regarding the “Resident
Lifestyle Volunteer Program” is representative of a more global issue with Plaintiffs’ Response which rendered
preparation of this Order a cumbersome task. Indeed, the Court found that multiple times throughout the
Response, Plaintiffs’ recitation of the facts mischaracterizes the cited testimony or represents the evidence in
ways which go beyond what can be a fair inference supported by the record. For example, Plaintiffs assert that
“[t]he Resident Lifestyle Activities, which include the Resident Lifestyle Groups, are supported by the Amenities
Fees” and cite Tutt’s depositions. See Response at 5. In the first deposition cited by Plaintiffs, Tutt testifies that
only “residents and their guests, if there’s room, can enter” the “Villages . . . lifestyle groups” because the
facilities which these groups use “are paid for with [A]menities [F]ees[.]” Tutt Dep. II at 39-40. In the second
deposition cited by Plaintiffs, Tutt testifies that the Districts “do not allow non-residents into those activities [the
RLGs] because the rooms are funded through the amenity fees[.]” Tutt Dep. I at 49. This testimony by Tutt does
not indicate that the “Resident Lifestyle Activities” are an umbrella entity under which the Resident Lifestyle
Groups are included. Moreover, this testimony does not indicate that the RLGs are supported by the Amenities
Fees. It indicates that the recreation facilities, which RLGs use, are supported by Amenities Fees.
By way of another example, Plaintiffs assert that through the Resident Lifestyle Volunteer Guidelines,
the Districts “require the Resident Lifestyle Volunteer to get approval from the Districts before a meeting can
be cancelled.” Response at 16. However, the Court’s review of the Guidelines indicates that “[t]he group
contact person is responsible for notifying the Recreation staff of any changes to the Facility Permit such as
contact(s), meeting cancellations, room changes, day, times, or locations, and should notify the media of
meeting changes or cancellations.” Rohan Aff., Ex. B at 6; Rohan Aff. Ex. C at 6. Additionally, the Guidelines
require that, “[t]o make a change to a room reservation, the group contact must complete and submit a Resident
Lifestyle Room Change Request Form to any Regional Recreation Center staff member”, and that “[r]oom
changes must be approved by Recreation and will be based on room availability.” Id. However, there is no
indication in the Guidelines that an RLG volunteer must get approval before cancelling a meeting.
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Aff., Ex. C.16 Statements included in the Resident Lifestyle Volunteer Guidelines under the
heading “Resident Lifestyle Group Information” are as follows:
•
•
•
•
•
•
•
•
•
•
•
•
Membership in a Resident Lifestyle Group shall be restricted to
residents of The Villages.
Participants must be at the appropriate level of experience and
knowledge to join an activity as determined by a group leader.
Resident Lifestyle Groups must meet a minimum of four times in a
fiscal year (October-September) in order to maintain their Resident
Lifestyle Group status.
Groups may add up to 8 additional meeting dates per year.
Resident Lifestyle Groups shall maintain a list of group members and
provide that list to the Recreation Department upon request.
Members are required to present their Resident ID to attend each
activity.
Eligible guests may attend a Resident Lifestyle sponsored activity. An
eligible guest is any person who is registered in the Guest ID Card
system.
Eligible guests must present a valid Guest ID and photo ID prior to
attending any Resident Lifestyle activity. Guests are not eligible to
become members of a Resident Lifestyle Group.
Resident Lifestyle Groups are allowed to have non-resident guest
presenters/speakers on a limited basis with prior approval by the
Director of Recreation[.]
Support Groups, defined as a non-funded group with health conditions
that are recognized through the American Medical Association to
qualify, are allowed to have up to 10 non-qualified guests attend their
meetings at District facilities. Support Groups must be approved by the
Director of Recreation.
Resident Lifestyle Groups are encouraged to provide the group’s
expectations, membership requirements, dues and other fees, etc.,
prior to residents joining.
Resident Lifestyle Groups that charge membership dues or fees are
required to notify their members, publicize these charges, and account
16
However, Rohan also testified that his job is really to make sure that the volunteers are “educated”
about the guidelines and about “the expectations of them.” Rohan Dep. I at 65. Yet, he also testified that “[i]f
there’s a violation that could impact the public safety, health welfare yes, we would want compliance there.”
Id. at 66.
-13-
•
•
•
•
•
for the purpose and use of fees. The responsibility for recording all
financial information belongs to the Resident Lifestyle Group.[17]
The records (membership, bylaws, financial, operating procedures,
etc.) of each Resident Lifestyle Group shall be open to participating
residents upon reasonable notice.
The use of Recreation Department equipment [sic] copiers, coffee,
Recreation equipment is based on availability[.]
The Resident Lifestyle Group(s) shall agree to abide by the policies
and procedures of the Recreation Department and the Village
Community Development Districts.
All groups are subject to review by the Recreation Department or the
Village Community Development Districts.
There is limited storage at Recreation Centers; any storage of items
must have prior approval by the Director of Recreation.
See Rohan Aff., Ex. B at 3-4; Rohan Aff. Ex. C at 3-4. The Resident Lifestyle Volunteer
Guidelines also include additional information related to guidelines for RLGs which collect
fees, and procedures for scheduling rooms,18 and information related to facility permits,19
among other topics. See generally id. Of particular relevance to this action, the Resident
Lifestyle Volunteer Guidelines include a section regarding the Americans with Disabilities
Act and auxiliary aids. This provision states the following:
17
Henry testified that “dues are not against district policy” because they pay for the functions of the
RLGs. Henry Dep. at 18. Relatedly, although the Districts do not control whether a club charges a membership
fee or the amount charged, “[t]he Districts will advise clubs that members are entitled to review the financial
records of the clubs but the Districts will not do so.” Rohan Aff. ¶ 9.
18
This provision states that while RLGs “that have already been scheduled take priority over rentals
however, District Operated or Sponsored events shall have priority in the scheduling of facilities.” See Rohan
Aff., Ex. B at 5.
19
As noted, the RLG volunteer “is responsible for notifying the Recreation staff of any changes to the
Facility Permit such as contact(s), meeting cancellations, room changes, day, times, or locations and should
notify the media [the Recreation News] of meeting changes or cancellations.” Rohan Aff., Ex. B at 6; Rohan
Aff. Ex. C at 6.
-14-
XVII. ADA
The following information regarding ADA Auxiliary Aids will provide clarification
for managing and directing requests for auxiliary aids for activities at District
owned and operated facilities. The person, entity or organization requesting
and receiving a facility permit for rental of a District facility shall have the sole
responsibility to accommodate qualified individuals pursuant to the Americans
with Disabilities Act (ADA). This language will also appear on all Facility
Permits issued for any District owned or operated facility:
•
District Sponsored Event: If the District organizes or is otherwise
in charge or plays an integral part in the event or activity, the
District will provide accommodations to a person that is impaired
subject to the District’s “Policy for ADA Accommodations”.
•
Non-District Sponsored Event: Resident Lifestyle Volunteer
Group Event: Resident Lifestyle Groups are volunteer and nonprofit entities which sponsor activities, meeting and events
separate from District operations, entities and functions.
Requests for auxiliary aids for Resident Lifestyle sponsored
events should be directed to the Resident Lifestyle Group
Contact listed on the Facility Permit. The Resident Lifestyle
Group Contact shall determine the provisions for providing
auxiliary aids on a case by case basis, determining whether the
request would place an undue hardship on the Resident
Lifestyle Group.
•
Non-District Sponsored Event: Rental of Facilities: An
individual(s) or group(s) sponsors activities, meetings and
events separate from District operations, entities and functions.
Requests for auxiliary aids for rental or facility events should be
directed to the Contact listed on the Facility Permit. The
Contact shall determine the provisions for providing auxiliary
aids on a case by case basis, determining whether the request
would place an undue hardship.
Rohan Aff., Ex. B at 11; Rohan Aff., Ex. C at 11.
-15-
iii.
Recreation Department involvement with RLGs
In explaining the Districts’ involvement with the RLGs, Tutt testified as follows:
The content of club meetings, providing [sic] the Districts do not become
aware of the illegal, destructive, or proprietary activities, is of no concern to the
Districts. Whether John or Jane is the group leader is likewise of no relevance
to the Districts, as long as that person is a resident and his or her contact
information has been provided. The Districts’ concern focuses on facilitating
the efficient use of its recreation centers.
Tutt Aff.¶ 20; see also Tutt Dep. I at 65-66 (explaining that the function of the Districts with
respect to the RLGs is to “provide [the RLGs] facilities in a framework”, “to provide an
organized mechanism” for scheduling the RLGs, and to avoid a situation where there is “no
accountability for the use of the room and consideration of the facilities”). Tutt further
explained that with over 2,000 groups “vying for space”, the Districts’ function is to “make
sure there [is] a balance” of RLGs using the recreation facilities. Tutt Dep. I at 66.
According to Tutt, the RLGs provide recreational activities which supplement the vast array
of recreational activities provided by the Districts, but the RLGs do not replace the Districts’
recreational functions. Tutt Aff. ¶ 21.
Tutt has explained that the Districts do not regulate the content of the programs and
services offered by the RLGs “other than to the extent they will not allow proprietary or illegal
operations in the facilities.”20 Tutt Aff. ¶ 15; see also Rohan Aff. ¶ 7 (“The Districts do not
regulate or supervise the activities of clubs other than to expect compliance with its facility
guidelines.”). As such, RLGs “that use the Districts’ facilities are subject to the Districts’
20
To that end, the Recreation Department has disbanded at least one RLG, the travel club, because
the group leader was taking “cutbacks” from travel agencies in violation of “district policy” prohibiting proprietary
operations within a recreation facility. Henry Dep. at 16-17.
-16-
Facility Guidelines” but “[t]hese guidelines are no different than the guidelines imposed upon
residents using the facilities, or outside parties who have rented the facility.” Tutt Aff. ¶ 13;
see Tutt Dep. I at 68 (testifying that the Recreation Department is in charge of enforcing the
“code of conduct” with respect to RLGs but qualifying that the Recreation Department
ensures that “everybody who utilizes” the Districts’ facilities complies with the code of
conduct).
Similarly, Recreation Department employees check the identification of all
persons who use recreation facilities regardless of whether the person is a member of an
RLG using the facilities or a nonresident using the facilities. Rohan Aff. ¶ 7. Indeed, Henry
testified that nonresidents can use the recreational facilities, but they must have a valid
guest ID card. Henry Dep. at 103.
Although the Districts do not control membership of RLGs except to ensure that
members are residents of The Villages, Recreation Department personnel may, upon
request from a resident, suggest appropriate clubs and provide the resident with the contact
information for the appropriate group leader. Rohan Aff. ¶ 10. Similarly, if a resident wants
to create a new RLG, but that prospective group leader is only available seasonally, the
Districts will “put a call out for volunteers to assist those residents to get someone else to
come in to set a group up.” Tutt Dep. I at 53. The Recreation Department also organizes
a quarterly “communication meeting” to provide information to the RLGs about recreation
center closings, projects taking place, community news, and updates. Rohan Dep. I at 4849. However, RLG volunteers are not required to attend these meetings. Id. at 49.
Annually, the Recreation Department contacts the RLG volunteers to obtain the
volunteer leaders’ facility permits in order to update the information on the Districts’ website
-17-
regarding what programs will be held in the recreation facilities. Rohan Dep. II at 83-84.
The facility permit is key to being an RLG volunteer: If a resident decides he or she no
longer wants to be an RLG volunteer, the Recreation Department will rescind the facility
permit.21 Id. at 85. As such, Rohan testified that
[t]he Recreation Department’s involvement with resident clubs is due to and
required by club usage of recreation facility rooms and equipment. If residents
of The Villages wish to form a club, but do not wish to use recreation facility
space, the Recreation Department would have no contact with said group.
Rohan Aff. ¶ 5.
In their depositions, Plaintiffs were asked about and testified to their beliefs regarding
the creation and function of the RLGs. For example, Plaintiff Louis Schwarz testified to his
belief that the Districts control who the leader of an RLG is because “if the VCDD sees that
people have interest in a particular subject matter, they may try to find a leader that may
become proactive in trying to find a leader amongst those people that are interested in that
particular area of interest[.]” See Deposition of Louis Schwarz at 17 (Doc. 131-6; Schwarz
Dep.). However, Schwarz was not able to identify a specific club leader “appointed” by one
of the Districts but rather testified that this “maybe” occurred with the Prius Club, the
Photography Club, the Computer Club, or the Genealogy Club. Id. at 18. Schwarz further
testified that the Districts have control over what goes on during RLG meetings because
“[t]he VCDD has policies and guidelines that they have to explain explicitly what it is they can
and cannot do.”
Id. at 21.
Additionally, Schwarz testified that the Districts provide
21
Indeed, the RLGs’ facility permits indicate the groups’ meeting times, and these times are advertised
in the Recreation News, posted at the recreation centers, and posted on the Districts’ website. Rohan Aff., Ex.
B at 6; Rohan Aff. Ex. C at 6.
-18-
“supervision” during RLG meetings because employees of the recreation center will tell
residents they need to vacate the recreation rooms when their scheduled meeting time is
up. Id. at 22-23. Plaintiff Janice Hickey testified that it is her understanding that The
Villages operate the RLGs because the clubs are located in The Villages. Deposition of
Janice Hickey at 58-59 (Doc. 131-8; Hickey Dep.). Plaintiff Richard McElwain testified that
he believes the RLGs and the Districts “are the same” because he “bought into the whole
package . . . the lifestyle[.]” Deposition of Richard McElwain at 15 (Doc. 131-16; McElwain
Dep). According to McElwain, he chose to live at The Villages “because of the different
activities and the conglomerate of all the different clubs and active lifestyle that’s promoted
here.” Id. at 15-16. However, McElwain also testified that he now understands that the
“VCDD keeps [the RLGs] separate[.]” Id. at 21. Plaintiff Byron Zimmerman testified that he
believes the Corvette Club is “the CDD’s Corvette group” because it is advertised in the
Recreation News and because he believes it is included in the “lifestyle” at The Villages.
Deposition of Byron Zimmerman at 25 (Doc. 131-17; Zimmerman Dep.). He further testified
that because the “VCDD accepts [the RLGs] in order to list them in the Recreation News[,]
. . . it’s almost implied that the VCDD is responsible for those very things and sanctions
those clubs[.]” Id. at 26-27. Finally, Plaintiff Lynn Stirling testified that she believes that it
is the responsibility of the Districts to provide sign language interpreters because “[i]t’s part
of . . . the amenities.” Deposition of Lynn Stirling at 126 (Doc. 131-31; Stirling Dep.).
5.
Camp Villages
The “Camp Villages” event is a District-sponsored activity designed for residents of
The Villages and their grandchildren. Rohan Dep. I at 32-34, 78. Camp Villages is a single-19-
day event led by volunteers and funded by a combination of registration fees and Amenities
Fees. Id. at 32-34.22 Henry testified that she has “had a deaf person apply to Camp
Villages[.]” Henry Dep. at 99. She “believe[s]” it was Plaintiff Louis Schwarz, and she
“know[s] that [the Recreation Department] provided an interpreter for the program.”
According to Henry, “[i]f it wasn’t Mr. Schwarz, it was one of the individuals.” Id.
6.
The Districts’ ADA Accommodations Policy
Beginning in 2008, Plaintiff Louis Schwarz requested that the Districts provide sign
language interpreters for RLG activities. See Schwarz Dep at 13-16. In response to
Schwarz’s 2008 requests, the Districts’ attorney formulated the original framework for the
Districts’ ADA policy. See Rohan Dep. II at 16, 26-27; see Exhibit 5 to Rohan Dep. II (Doc.
144-5, Exhibit 5; Rohan Dep. II, Ex. 5). The policy divided accommodation requests into
two categories: 1) requests for accommodations with respect to District-sponsored activities
and 2) requests for accommodations with respect to non-District-sponsored activities. See
Rohan Dep. II, Ex. 5. The Districts’ attorney advised that if the activity is sponsored by the
District, “then there is an obligation to provide accommodations to a person that is impaired
subject to the primary considerations by the District of whether or not the request would
place an undue hardship upon the District.” Id. The attorney further advised that if the
activity or event is not District-sponsored, “then the District is not required to accommodate
the impaired person as it would be the responsibility of the entity or parties that are in charge
of the event or activity.” Id.
22
Henry testified that Camp Villages is “an intergenerational day camp where grandparents and
grandchildren participate in the activities together” and that it “[r]uns for eight weeks in the summertime.” Henry
Dep. at 98. This factual distinction is not material for purposes of summary judgment.
-20-
In 2010, Rohan and his staff recommended an amendment to the Resident Council
Guidelines (now called the Resident Lifestyle Volunteer Guidelines) to include this policy
formulated by the Districts’ attorney. See Exhibit 3 to Tutt Dep. II at 11 (Doc. 144-3, Exhibit
3; Tutt Dep. II, Ex. 3); Tutt Dep. I at 74-75. Presently, District policy is that the Recreation
Department will provide accommodations, including a sign language interpreter if requested,
to deaf residents for programs “sponsored” by the Districts or the Recreation Department.
Rohan Dep. I at 54; Tutt Dep. II at 90; see supra at 13. However, for RLG activities, the
Districts will not provide accommodations, including sign language interpreters. Id.23
In her affidavit, Tutt recognized that there may have been some confusion over when
the Districts would provide interpreter services. Tutt Aff. ¶ 18. For example, the Recreation
Department has, in the past, sponsored pickle ball clinics and has provided interpreter
services for these clinics, but the Recreation Department has not provided interpreter
services for pickle ball events sponsored by the RLG pickle ball club. Id.; see also
Deposition of Bernard Brown at 101-103 (Doc. 131-10; Brown Dep.) (testifying that the
Recreation Department provided an interpreter for two or three pickle ball clinic classes out
of a total of four or five classes). Tutt explained the distinction as follows: “The Districts have
provided, and will continue to provide, sign language interpreters for all activities which they
sponsor and for which such interpreter services have been requested. Interpreters have not
23
Nevertheless, the Districts, through the Recreation Department, provide auxiliary aid
accommodations in the form of Portable Loop Systems for hard-of-hearing seniors to access the volunteer-led
activities. Tutt Dep. II at 40. These Portable Loop Systems are also available for residents participating in the
RLGs. Id. at 40-41. The Districts provide the Portable Loop Systems for residents using the Districts’ facilities
because, according to Tutt, this accommodation is an “ADA facility requirement” or “part of building code[.]” Id.
at 41-43.
-21-
and will not be provided by the Districts for non-District club activities.” Tutt Aff. ¶ 18.24 In
this Order, the Court addresses Plaintiffs’ challenge to the Districts’ refusal to provide sign
language interpreters for RLG activities.25
B.
Standard of Review26
Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), “[t]he court shall grant
summary judgment 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.” Rule 56(a). The record to
be considered on a motion for summary judgment may include “depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials.” Rule 56(c)(1)(A).27 An issue is genuine when the evidence is such that a
24
In the Complaint, Plaintiffs allege that “[i]n October 2011, Louis Schwarz requested and was denied
a sign language interpreter for the CDD play entitled “‘Where Broadway Meets Gilbert and Sullivan.’” Complaint
¶ 133. Plaintiffs allege that “[n]o response to the request was ever made to Mr. Schwarz’s email.” Id. ¶ 134.
When asked in his deposition about this allegation, Schwarz testified that he assumed the play was “from the
rec department or the entertainment department.” Schwarz Dep. at 41. Schwarz further testified that he does
not know who the person was that he contacted because he just called a phone number listed in either the
Recreation News or The Villages Daily Sun. Id. at 41-42.
McElwain testified that on one occasion, he complained to Rohan regarding the interpreters provided
by the Recreation Department for a Christmas festival. McElwain Dep. at 24. According to McElwain, the
interpreters “weren’t necessarily qualified interpreters” and were “inexpensive” and of “poor quality.” Id.
25
To the extent Plaintiffs alleged any failure to accommodate at a District-sponsored event, such
allegations are addressed in a separate Order (Doc. 188).
26
The Court applies an identical standard of review to Defendant, the Villages Charter School, Inc.
d/b/a the Villages Lifelong Learning College’s Motion for Summary Judgment and Memorandum of Law (Doc.
132). As such, the Court will not repeat the standard of review with respect to its analysis of that Motion.
27
Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding summaryjudgment motions.” Rule 56 advisory committee’s note 2010 Amendments.
The standard for granting summary judgment remains unchanged. The language of
subdivision (a) continues to require that there be no genuine dispute as to any material fact and
(continued...)
-22-
reasonable jury could return a verdict in favor of the nonmovant. See Mize v. Jefferson City
Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the nonmoving party’s position is insufficient to defeat a motion for summary judgment.” Kesinger
ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
The party seeking summary judgment bears the initial burden of demonstrating to the
court, by reference to the record, that there are no genuine issues of material fact to be
determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
“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) (internal citations and quotation marks omitted). Substantive law determines the
materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” Anderson,
477 U.S. at 248. In determining whether summary judgment is appropriate, a court “must
view all evidence and make all reasonable inferences in favor of the party opposing
27
(...continued)
that the movant be entitled to judgment as a matter of law. The amendments will not affect
continuing development of the decisional law construing and applying these phrases.
Id. Thus, case law construing the former Rule 56 standard of review remains viable and is applicable here.
-23-
summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing
Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).
C.
Analysis
The Districts move for summary judgment as to Plaintiffs’ claims in Count I (ADA),
Count III (FHA), and Count IV (Rehabilitation Act) on the grounds that the Districts have no
legal obligation to provide sign language interpreters for meetings or activities conducted by
the RLGs. See Motion at 39.
1.
Plaintiffs’ Objections to the Districts’ Affidavits
Before turning to the merits of the Motion, the Court will address Plaintiffs’ argument
that the affidavits of the Districts’ directors and employees are inadmissible as “sham
affidavits” which the Court “should strike altogether.” Response at 20. Plaintiffs assert that
these affidavits are “wholly contradicted by the deposition transcripts of their affiants as well
as the documents the parties produced in discovery.” Id.
A court may determine that an affidavit is a sham when it contradicts previous
deposition testimony and the party submitting the affidavit does not give any
valid explanation for the contradiction. . . . . However, “[t]his rule is applied
sparingly because of the harsh effect it may have on a party's case.” . . . As
such, courts must “find some inherent inconsistency between an affidavit and
a deposition before disregarding the affidavit.”
Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010) (citations omitted).
Indeed, “to allow every failure of memory or variation in a witness' testimony to be
disregarded as a sham would require far too much from lay witnesses and would deprive
the trier of fact of the traditional opportunity to determine which point in time and with which
words the . . . affiant . . . was stating the truth.” Allen v. Bd. of Public Educ. for Bibb Cnty.,
-24-
495 F.3d 1306, 1316 (11th Cir. 2007) (quoting Tippens v. Celotex Corp., 805 F.2d 949, 95354 (11th Cir. 1986)).
Plaintiffs do not specify which aspects of the affidavits are inherently contradicted by
the affiants’ depositions. However, in Plaintiffs’ introduction to their recitation of the facts,
Plaintiffs assert that in their depositions, Rohan and Tutt “attempt to explain away hundreds
of documents” which show that the RLGs are not private activities with no involvement by
the Districts. Response at 4 n.2. Plaintiffs argue that “the reality is that the documents
produced in discovery clearly and unambiguously contradict[ ]” Rohan’s and Tutt’s
testimony. Id. However, the portion’s of Rohan’s and Tutt’s depositions cited by Plaintiffs
in this footnote reflect instances where Rohan and Tutt state that a document or
communication should have been worded differently and where they explain the significance
or reasoning behind the wording of a particular statement. Thus, this deposition testimony
does not reflect “inherent inconsistencies” with the affidavits. If anything, these excerpts
represent instances in which the deponents discuss the meaning behind the word choice in
a document.
Additionally, to the extent there is any variation between the Districts’
representatives’ depositions and affidavits, these variations do not constitute inherent
inconsistencies. Moreover, the Background section of this Order fully sets forth the facts as
represented in both the depositions and affidavits. As such, the Court finds the contested
affidavits admissible and will consider them in determining whether entry of summary
judgment is appropriate.28
28
Plaintiffs “demur, without admitting the materiality thereof, to the entire contents” of the Motion which
set forth facts relating to each Plaintiff. See Response at 18. Also, Plaintiffs “object” to the Districts’ “summary”
(continued...)
-25-
2.
Count I: ADA
In Count I of the Complaint, Plaintiffs allege that the Districts are public entities as
defined under Title II of the ADA and that the Districts “violated Title II of the ADA in
numerous ways[.]” Complaint ¶¶ 339-340. In particular, Plaintiffs allege that the Districts
“[f]ailed to maintain policies and procedures to ensure compliance with Title II of the [ADA]”;
“[f]ailed to ensure that communications with the Plaintiffs were [as] effective as
communications with non-disabled persons”; and “[f]ailed to provide auxiliary aids and
services, including a qualified interpreter, and modify policies and procedures to prevent
discrimination against Plaintiffs and other persons with hearing disabilities with respect to”
the RLG programs, as well as activities and events provided by the Districts. Id. ¶ 340(a)(g). For this alleged discrimination, Plaintiffs seek a declaratory judgment, permanent
injunctive relief, compensatory damages, and costs and attorneys’ fees. Id. at 44-45. Thus,
in the Complaint, Plaintiffs appear to allege that the Districts violated the ADA with respect
to District-sponsored events and activities, as well as RLG activities. However, because
Plaintiffs’ Response is limited to Plaintiffs’ claim of discrimination with respect to the RLGs,
see, e.g., Response at 1,29 the Court similarly limits its analysis in this Order.
28
(...continued)
of Plaintiffs’ depositions set forth on pages 38-39 of the Motion. Id. at 18-19. In the Background section of this
Order, the Court has included excerpts of Plaintiffs’ deposition testimony reflecting their impressions and beliefs
regarding the RLGs. However, Plaintiffs’ testimony regarding the operations of the RLGs and the Districts’
responsibility for accommodations with respect to the RLGs is not based on personal knowledge. In the face
of affirmative evidence in the form of documents and the affirmative testimony of witnesses’s with personal
knowledge, “statements of personal opinions, general beliefs and feelings, by their very nature, do not raise
disputes of fact.” Green v. Miami-Dade Cnty., Case No. 02-22996, 2003 WL 22331877, at *6 (S.D. Fla. Sept.
9, 2003).
29
The Court will cite the Response using the pagination which Plaintiffs have applied to the document
rather than the pagination applied to the document by the Court’s CM/ECF system.
-26-
Title II of the ADA provides that
no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by
any such entity.
42 U.S.C. § 12132. To establish a claim of disability discrimination under Title II of the ADA,
each Plaintiff must establish that (1) he or she is a qualified individual with a disability; (2)
was denied the full and equal benefit of services, programs, or activities; (3) and that the
denial was by a public entity. See id. Additionally, where, as here, a plaintiff alleges
discrimination based on a public entity’s refusal to provide a reasonable accommodation,
the plaintiff must also establish that the plaintiff requested an accommodation (or the need
for one was obvious) and that the public entity failed to provide a reasonable
accommodation. See McCullum v. Orlando Regional Healthcare, No. 6:11-cv-1387-Orl31GJK, 2013 WL 1212860, at *4 (M.D. Fla. March 25, 2013); see also Smith v. Rainey, 747
F. Supp. 2d 1327, 1338 (M.D. Fla. 2010) (“In cases alleging a failure to make reasonable
accommodations, the defendant’s duty to provide a reasonable accommodation is not
triggered until the plaintiff makes a ‘specific demand’ for an accommodation.”). Notably, Title
II of the ADA governs only the actions of public entities, see Edison v. Douberly, 604 F.3d
1307, 1308 (11th Cir. 2010), and defines the term “public entity” as:
(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality
of a State or States or local government; and
(C) the National Railroad Passenger Corporation, and any commuter
authority[.]
-27-
42 U.S.C. § 12131.
In the Motion, the Districts do not dispute that they are public entities or that Plaintiffs
are qualified individuals with disabilities. See Motion at 4, 39 n.1. Instead, the Districts deny
that they have an obligation to accommodate Plaintiffs with respect to RLG activities
because: (1) participation in the RLGs is not a program, service or activity of the Districts;
and (2) the RLGs are not instrumentalities of the Districts. Id. at 40. In the Complaint,
Plaintiffs appear to allege that the Districts are the public entity at issue and that the RLG
activities are the programs, activities, or services to which the Districts denied Plaintiffs
access. See Complaint ¶¶ 339-340. Indeed, in the Response, Plaintiffs assert that “[t]he
question is whether the [RLGs] are a service, program or activity of Defendants.” Response
at 21. However, Plaintiffs also cite the Department of Justice’s Technical Assistance Manual
(“TAM”) addressing what constitutes a “public entity” under Title II of the ADA and argue that
based on the TAM’s stated definition, the RLGs are “covered by Title II[.]” Response at 2223.30 Whether the Districts are liable under Title II of the ADA for the RLGs’ services,
programs, and activities presents a legal issue to be decided by the Court. See Kerr v.
Heather Gardens Assoc., Civil Action No. 09-cv-00409-MSK-MJW, 2010 WL 3791484, at
*7 (D. Colo. Sept. 22, 2010). Accordingly, the Court will first address whether the activities
of the RLGs are a service, program, or activity of the Districts under Title II of the ADA
before turning to the question of whether the RLGs themselves are a public entity.
30
Additionally, Plaintiffs argue that the TAM’s guidance with respect to joint ventures between public
entities covered by Title II and private entities covered by Title III is applicable to the instant action. Response
at 23-24.
-28-
i.
Whether the Districts are liable for the failure to
accommodate at RLG functions
“The ADA does not explicitly define ‘services, programs, or activities.’”
See
Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44 (2d Cir. 1997),
recognized as superseded on other grounds, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171
n.7 (2d Cir. 2001). However, the RA, which generally is to be interpreted in pari materia with
the ADA, defines a “program or activity” as “all of the operations of . . . a local government.”
Frame v. City of Arlington, 657 F.3d 215, 225 (5th Cir. 2011) (citing 29 U.S.C. §
794(b)(1)(A)). Indeed, the Eleventh Circuit Court of Appeals has cited with approval the
Second Circuit Court of Appeals’ statement in Innovative Health Systems, Inc. that “the
language of Title II’s antidiscrimination provision does not limit the ADA’s coverage to
conduct that occurs in the ‘programs, services, or activities’ of [a public entity]” but that “it
is a catch-all phrase that prohibits all discrimination by a public entity, regardless of the
context[.]’” Bledsoe v. Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816,
822 (11th Cir. 1998); see also Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1085-86 (11th
Cir. 2007) (noting that the Eleventh Circuit “already has explained that the final clause of §
12132 ‘protects qualified individuals with a disability from being subjected to discrimination
by any such entity, and is not tied directly to the services, programs, or activities of the public
entity”) (internal quotation marks omitted). Notably, the DOJ regulations promulgated under
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the ADA31 support this broad reading of the statute. Specifically, the regulations address
where a public entity is indirectly liable under Title II, providing that:
A public entity, in providing any aid, benefit, or service, may not, directly or
through contractual, licensing, or other arrangements, on the basis of disability
. . . [d]eny a qualified individual with a disability the opportunity to participate
in or benefit from the aid, benefit, or service[.]
28 C.F.R. § 35.130(b)(1)(I). Further, the appendix to this section of the Regulations explains
that:
[T]itle II applies to anything a public entity does. . . . All governmental activities
of public entities are covered, even if they are carried out by contractors. For
example, a State is obligated by [T]itle II to ensure that the services,
programs, and activities of a State park inn operated under contract by a
private entity are in compliance with [T]itle II's requirements.
28 C.F.R., Pt. 35, App. B.
The Districts acknowledge this broad view of what constitutes a public program under
Title II. See Motion at 40. Nevertheless, in arguing that they are not liable under Title II for
any discrimination by the RLGs, the Districts analogize the relationship between the Districts
and the RLGs to various cases declining to impose liability on a public entity under Title II.
First, the Districts analogize the relationship between the Districts and the RLGs to a
“minimal licensing program” and cite a line of cases applying the following ADA regulation:
A public entity may not administer a licensing or certification program in a
manner that subjects qualified individuals with disabilities to discrimination on
the basis of disability, nor may a public entity establish requirements for the
programs or activities of licensees or certified entities that subject qualified
individuals with disabilities to discrimination on the basis of disability. The
31
“Because Congress explicitly authorized the Attorney General to promulgate regulations under the
ADA, see 42 U.S.C. § 12134(a), the regulations ‘must [be given] legislative and hence controlling weight unless
they are arbitrary, capricious, or plainly contrary to the statute.” Shotz v. Cates, 256 F.3d 1077, 1079 n.2 (11th
Cir. 2001).
-30-
programs or activities of entities that are licensed or certified by a public entity
are not, themselves, covered by this part.
28 C.F.R. § 35.130(b)(6) (emphasis added); see Motion at 41-43. The Districts cite Wendel
v. Fla. Dep’t of Highway Safety & Motor Vehicles, 80 F. Supp. 3d 1297 (M.D. Fla. 2015),
arguing “that a public entity is not accountable for the alleged discriminatory practices of a
private company if those practices are not the result of requirements or policies established
by the public entity[.]” Motion at 42. Further, the Districts contend that “the Districts have
no policies prohibiting clubs from providing sign language interpreters to members.” Id. In
Wendel, the plaintiff sued the Florida Department of Highway Safety and Motor Vehicles
(“the DHSMV”) for discrimination in violation of the ADA and RA related to a DUI school,
Sunshine Safety Council, Inc. (“Sunshine”). Wendel, 80 F. Supp. 3d at 1300. The DHSMV
is responsible for licensing and regulating DUI schools pursuant to Florida law, and
Sunshine is one of twenty-six DHSMV-licensed DUI programs in the State of Florida. Id.
In addressing the DHSMV’s liability for Sunshine’s alleged discrimination, the court reasoned
that “[a]ssuming that Sunshine did discriminate against Plaintiff because of his disability, any
such discrimination cannot be attributed to the [DHSMV]; rather, it is attributable to Sunshine
alone” because “[a] licensor is not accountable for any alleged discrimination of its licensee.”
Id. at 1305. The Court further stated that while the DHSMV “cannot administer a licensing
program in a manner that subjects persons with disabilities to discrimination, ‘[t]he programs
or activities of entities that are licensed or certified by a public entity are not, themselves,
covered’ by” 28 C.F.R. § 35.130(b)(6). Id.
-31-
The Districts also point the Court to Noel v. New York City Taxi & Limousine Comm’n,
687 F.3d 63 (2d Cir. 2012). In Noel, the plaintiffs brought suit against the New York City
Taxi and Limousine Commission (“TLC”) for allegedly failing to provide meaningful access
to taxi services for persons with disabilities. Noel, 687 F.3d at 65. The Noel court likewise
relied upon § 35.130(b)(6) and the relevant provisions of the TAM in determining that
although the ADA’s implementing regulations “prohibit[ ] the TLC from refusing to grant
licenses to persons with disabilities who are otherwise qualified to own or operate a taxi . .
.; [they] do[ ] not assist persons who are consumers of the licensees’ product.’” Id. at 69.
In doing so, the Court cited to the TAM, noting that a public entity is not accountable for
discriminatory practices of a licensee “if those practices are not the result of requirements
or policies established by” the public entity. Id. Additionally, in determining that “the TLC
does not violate the ADA by licensing and regulating a private taxi industry that fails to afford
meaningful access to passengers with disabilities[,]” the Noel court explained that “[t]he
TLC’s control over the taxi industry, however pervasive it is at this time, does not make the
private taxi industry ‘a program or activity of a public entity.’” Id. at 72; see also Tyler v. City
of Manhattan, 849 F. Supp. 1429, 1441 (D. Kan. 1994) (“Although City programs operated
under contractual or licensing arrangements may not discriminate against qualified
individuals with disabilities, see 28 C.F.R. § 35.130(b)(6), ‘[t]he programs or activities of
licensees or certified entities are not themselves programs or activities of the public entity
merely by virtue of the license or certificate.’”); T.W. v. Jacobo, No. 4:13cv457-RH/CAS,
2014 WL 129056, at *1 (N.D. Fla. Jan. 13, 2014) (granting motion to dismiss an ADA claim
brought by disabled plaintiffs against hospital-licensing public entity on the grounds that the
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licensing entity cannot be liable for the action or inactions of the entity which operates the
hospital). The Districts argue that the fact that the Districts require RLG volunteers to
“register and provide contact information . . . in the event the group wishes to use Districts
facilities at no cost” is analogous to a “minimal licensing program.” Motion at 42.
However, one court has determined that a licensor should be held responsible for the
licensee’s failure to comply with the ADA despite § 35.103(6). See Paxton v. State of West
Va. Dep’t of Tax & Revenue, 451 S.E.2d 779 (W.Va. 1994). In Paxton, the West Virginia
Supreme Court of Appeals affirmed a writ of mandamus compelling the West Virginia Lottery
Commission to require all places selling lottery tickets to be accessible to persons with
disabilities as a condition precedent to the issuance or renewal of their licenses. Paxton,
451 S.E.2d at 780-81. In finding the Lottery Commission liable under Title II, the Paxton
court compared the facts of the case to those in Tyler:
It is clear that the Lottery Commission offers more than a mere license to the
entities which are given lottery outlets. This is not like the liquor and building
permits issued by the city in Tyler, where the city had no control over the
premises and services. Here, through its contract vendors the Lottery
Commission furnishes the lottery devices and services that allow the licensee
to conduct lottery sales. The Lottery Commission is clearly a public entity
within the meaning of the Americans with Disabilities Act, and it provides an
aid, benefit or service on a continuing basis to its licensee. Therefore, the
Lottery Commission comes within the scope of 28 C.F.R. § 35.130(b)(1),
which precludes a public entity that provides an aid, benefit, or service from
allowing disability discrimination either through contractual, licensing, or other
arrangements.
Id. at 784-85. In reaching this conclusion, the court rejected the argument that “the [Lottery
Commission] is only engaged in a licensing arrangement under 28 C.F.R. § 35.130(b)(6)”
because, according to the court, “the Lottery Commission does more than merely license
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lottery locations”: “It controls and obtains substantial monies from the lottery system.” Id.
at 785.
Although factually unique, the relationship between the Districts and the RLGs is
sufficiently analogous to that between a licensor and licensee such that § 35.130(b)(6) is
instructive. While the Districts do not literally license the RLGs, their role is, in some
respects, akin to a minimal license. For example, RLGs must be authorized by the Districts
to use the Recreation Department facilities through the issuance of facility permits. An RLG
is permitted to use the recreation center rooms without paying a rental fee because only
residents of The Villages, who pay the Amenities Fees which funds the recreation facilities,
may be RLG volunteers and members. In this way, the Districts’ involvement with the RLGs
amounts to a license to use recreation facilities at no cost. The Districts are not involved in
the content and presentation of RLG programs, activities, and events and receive no income
from the events. The Districts’ involvement in the operations of the RLG programs is limited
to facilitating the RLGs’ use of the recreation centers as the forum for their programs,
activities, and events, and ensuring compliance with facility guidelines applicable to all users
of the recreation facilities.32 Thus, the relationship between the Districts and the RLGs
32
With respect to the creation of RLGs, the evidence shows that the Districts play an active role in
advertising the RLGs and in encouraging residents of The Villages to volunteer to create new RLGs. See Tutt
Aff. ¶ 11; Rohan Column (“Many Recreation Changes”); Rohan Column (“New year full of new possibilities”);
Districts’ Website Flyer. Additionally, the Court recognizes that these documents use language like, “As we
draw closer to the grand opening of Seabreeze, . . . staff is putting out the all-call to any resident who would love
to volunteer by leading an activity for your fellow residents”, “we are always trying to recruit residents to become
part of our resident lifestyle volunteer team”, and “We would love to have you on our team.” Rohan Column
(“Many Recreation Changes”); Rohan Column (“New year full of new possibilities”). Plaintiffs argue that this
language indicates that the RLG activities are part of the Districts’ operations. See Response at 4 & n.2.
However, despite the Districts’ use of this inclusive language in advertisements and newspaper columns, the
evidence demonstrates that the RLGs are, in fact, operated independently by private individuals.
-34-
appears to be a closer analogue to those in Wendel, Noel, Tyler, and T.W., and less
analogous to Paxton. Indeed, as the Noel court recognized that the pervasiveness of the
TLC’s “control” over the private taxi industry did not transform the industry into a program
or activity of the TLC, the Districts’ involvement in promoting and helping create the RLGs
and in facilitating their meeting times and places does not make the programs and activities
of the RLGs a program or activity of the Districts or the Recreation Department. Further,
Paxton is distinguishable because in that case the sole purpose of the Lottery Commission
was to provide the lottery as a service from which it derived substantial income, whereas the
Recreation Department provides numerous activities, events, and services for residents of
The Villages, only one of which is to help facilitate the formation and meetings of the RLGs,
over which the Districts exercise no control and from which the Districts derive no income.
See Wendel, 80 F. Supp. 3d at 1306 (distinguishing Paxton by stating that “[u]nlike the
Lottery Commission, whose sole purpose is to conduct the lottery, the DHSMV provides a
plethora of services, only one of which is to license the DUI programs to these private
entities and then regulate and supervise the programs” and “[t]hese duties do not make the
[DHSMV] responsible for Sunshine’s allegedly discriminatory actions”).33
33
At oral argument, counsel for Plaintiffs asserted that “in some clubs over millions of dollars are
provided by the [D]istricts so that these clubs can function.” By way of example, Plaintiffs’ counsel referenced
the woodshop club and asserted that “[t]he [D]istricts [have] provided a lot money for the equipment for the
woodshop club. . . . [T]hey supply the wood, they supply the equipment, they supply millions of dollars so that
club could function and work, without that support, that club would be either very different or not in existence
without the support of the [D]istrict.” However, Plaintiffs were unable to point to evidence supporting these
broad statements. In her affidavit, Tutt testified
The Woodshop is in a building owned by the Districts. It is operated by Woodshop, Inc., a
group which came with the building when its ownership was transferred from the Developer to
the District some years ago. The District has no interest in that corporation. The tools and
equipment in the shop are not owned by the District.
(continued...)
-35-
The Districts also analogize the relationship between the RLGs and the Districts to
property rentals by governmental entities to private groups. Motion at 43. The Districts cite
Lang v. Or. Shakespeare Festival Ass’n, No. 1:12-cv-01844-CL., 2013 WL 5944184 (D. Or.
Oct. 31, 2013), in which a disabled plaintiff sued the Oregon Shakespeare Festival
Association (“OSF”), a private non-profit company which operates the Oregon Shakespeare
Festival, and the City of Ashland, under Title II of the ADA on the grounds that certain OSF
facilities were not accessible. Lang, 2013 WL 5944184, at *1. The City argued that the
plaintiff’s complaint was due to be dismissed because “the mere fact that it rents lands to
OSF does not make it liable under Title II of the ADA for the conditions of the Festival’s
facilities.” Lang, 2013 WL 5944184, at *4. The court agreed, stating that “the Festival as
a whole is not a service, program, or activity of the City[.]” Id.34
33
(...continued)
Tutt Aff. ¶ 23.e). Additionally, in her deposition, Tutt testified that the Districts have a “contract with the
woodshop club” and that
they’re required to provide - - they provide their equipment, their saws and blades, everything
within the facility. The building is provided, they provide their internal maintenance and
operation within the building and they collect dues and they had an expansion and they actually
took a loan from us, paid us interest and paid us back the loan for their, for the expansion to
the facility. . . .
. . . [W]hen we purchased the amenities, that came over as a level of service, so it was
in existence and the operation was all part of what we received. We didn’t buy facilities, we
bought the amenity revenue stream or the blue sky and with that came the facilities and the
rec, the woodshop came over in it’s [sic] current existence is my understanding as to how that
transpired. . . . The developer built it and . . . gave it to the district as part of the amenities and
[sic] but there was a requirement on their part to do their share.
See Tutt Dep. I at 99-100. Plaintiffs did not reference the woodshop club in the Response. Moreover, the
affirmative evidence cited above does not support an inference that the Districts provide “millions of dollars” to
operate the woodshop club.
34
However, the Lang court ultimately denied the City’s motion to dismiss because some of the barriers
identified by the plaintiff as being non-compliant with the ADA were the City’s responsibility as public right of
ways. Lang, 2013 WL 5944184, at *4.
-36-
The Districts also cite Haynes v. Wilder Corp. of De., 721 F. Supp. 2d 1218 (M.D. Fla.
2010), in which a wheelchair-bound, disabled plaintiff sued the owner/operator of a
recreational vehicle resort, of which the plaintiff was a resident, under the FHA and Title III
of the ADA.35 Haynes, 721 F. Supp. 2d at 1220. In Haynes, residents of the RV resort
which was owned and operated by the defendant formed a neighborhood association which
planned social activities for the RV resort’s residents. Id. at 1221. The plaintiff claimed that
the defendant violated the ADA’s prohibition on discrimination by public accommodations36
by refusing to insure equal participation in neighborhood association activities taking place
on the defendant’s premises. Id. at 1227. The court found that the plaintiff’s ADA claim
failed because
[a]lthough a landlord must comply with the public accommodation
requirements of the ADA (and cannot avoid ADA compliance merely by
35
The Districts assert that it is appropriate for the Court to look to Title III for guidance in deciding Title
II cases. See Motion at 44 n.3. Because the Court is able to reach its decision without reliance on Title III
cases, the Court expresses no opinion on this assertion except to note that at least one court has looked to Title
III in deciding a Title II case. See Celeste v. East Meadow Union Free School Dist., 373 F. App’x 85, 90-91 (2d
Cir. 2010) (stating that although the plaintiff raises claims under Title II and the Rehabilitation Act, Title III may
provide some guidance with respect to the language regarding “operat[ing]” a place of public accommodation).
36
Title III’s public accommodation provision provides that
[n]o 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.A. § 12182(a). 42 U.S.C. § 12182(b)(2)(A)(ii) prohibits failing
to make reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities, privileges, advantages,
or accommodations to individuals with disabilities, unless the entity can demonstrate that
making such modifications would fundamentally alter the nature of such goods, services,
facilities, privileges, advantages, or accommodations[.]
42 U.S.C. § 12182(b)(2)(A)(ii).
-37-
leasing a public accommodation), the ADA does not require a landlord to
ensure that a tenant (or a group of tenants) includes every neighbor at an
event. A landlord incurs liability only if the landlord implements a
discriminatory policy, practice, or procedure. . . .
[T]he Neighborhood Association - an unincorporated group of
neighbors informally responsible for planning “events” at Rice Creek - is not
an agent for the defendant. The defendant neither manages, nor organizes,
nor supervises the events planned by the Neighborhood Association. . . .
Neither the FHA nor the ADA requires a landlord to intervene in a purely
private dispute among tenants.
Id. at 1228. The Districts assert that these cases are instructive in the instant action given
the importance of “facility usage” in the relationship between the RLGs and the Districts.
Motion at 43.
Plaintiffs, however, contest the Districts’ reliance on the licensing and landlord-tenant
lines of cases. Plaintiffs assert that in both Noel and Haynes, “the underlying activity had
formed without the guidance, encouragement, or approval of the defendant.” Response at
24. Plaintiffs also assert that “in none of the cases dealing with the government entity as
either licensor or landlord did the governmental entity advertise and actively seek to create
the entity in question” but that in the instant case “the record indicates that [t]he Districts
advertised the [RLGs] as being part of the lifestyle offered by [t]he Districts, and solicited
Volunteers to start and run such groups.” Id. at 24-25. However, the court’s decision in
Haynes did not depend on the fact that the neighborhood association events formed without
the guidance of the owner/operator of the RV resort. Rather, the court’s decision rested on
the law relating to landlord liability under the ADA. See Haynes, 721 F. Supp. 2d at 1228.
Further, in Noel, the court declined to place any weight on the TLC’s “control over the taxi
-38-
industry” in determining that the taxi industry was not a program or activity of a public entity.
Noel, 687 F.3d at 72.
In addition to disputing the applicability of the Districts’ cited cases, Plaintiffs assert
that the instant action is more similar to Kerr, 2010 WL 379148. Indeed, the court’s framing
of the issue in Kerr appears almost identical to the issue in the instant action. See Kerr,
2010 WL 379148, at *7 (stating that “[t]he [ADA] does not expressly address whether a
public entity that authorizes a third party to provide services, programs or activities at a
venue owned by the public entity, remains responsible for compliance with the ADA”). The
plaintiff in Kerr was a deaf individual who lived at Heather Gardens, a senior living facility.
Id. at *1. She sued the Heather Gardens Metropolitan District (“HGMD”), the governing
metropolitan district where Heather Gardens is located, and the Heather Gardens
Association (“HGA”), the homeowner’s association for Heather Gardens, for violations of the
FHA and ADA. Id. at *1-*2. The HGMD and the HGA had entered into a Management
Agreement which provided:
WHEREAS, the [HGMD] and the [HGA] are desirous of entering into an
Agreement whereby the [HGA] performs all of the duties of the [HGMD] except
those duties required by law to be retained by the [HGMD] (e.g. preparation
of budgets, levying of taxes, payment of debt, etc.) and to manage, operate,
maintain, upgrade, rehabilitate, retire, replace and otherwise deal with the
Properties.
Id. at *2. Additionally, the Management Agreement defined “the specific rights and duties
of both the [HGMD] and the [HGA], including that the [HGA] make all operational decisions
relating to the use of the [HGMD’s] properties.” Id. Further, the HGA was “the sole entity
engaged in managing and operating Heather Gardens, including the community properties
-39-
owned by the [HGMD]” which included “conducting [HGA] board meetings and arranging for
events such as lectures and other programs and the Community Center - the events from
which [the plaintiff] allege[d] she was excluded.” Id.
In seeking summary judgment as to the plaintiff’s Title II claim, the HGMD argued that
the plaintiff could not “demonstrate that [it] provided the services, programs, or activities” and
that because “it delegated the provision of services, programs, and activities to the [HGA],”
it “therefore, [was] not liable under Title II for the actions that the [HGA] t[ook] in performing
these duties.” Id. at *6. The court, however, rejected this argument, finding the language
of 28 C.F.R. § 35.130(b)(1)(I) controlling in that the HGMD, as a public entity, was liable by
virtue of its contract with the HGA “to manage and administer its public duties with the
respect to Heather Gardens[.]” Id. at *9. The court further explained that the HGMD’s
liability did not hinge on any requirement that the public entity exercise “control” over the
services, programs, or activities. Id. at *10. Rather, key to the court’s analysis was that the
HGMD had contracted with the HGA to conduct the board meetings and community events
which were the HGMD’s services, programs, or activities. Id. at *9 n.13, *10. As such, the
court concluded that “a claim against the [HGMD] pursuant to Title II [was] actionable even
though the [HGMD] delegated all of its authority and duties to the [HGA].” Id. at *11.
Plaintiffs assert that Kerr is analogous to the instant action because “the evidence
demonstrates that [the Districts] ha[ve] tolerated others to provide services, at its
encouragement, and subsequently delegated responsibility for accommodations, which the
law prohibits it from doing.” Response at 24. However Kerr does not stand for the
proposition that simply tolerating the provision of services by others is enough to impose
-40-
liability under Title II. Further, there is no evidence that the Districts have delegated their
responsibility for “accommodations” to the RLGs. The evidence reflects that it is the policy
of the Districts to provide accommodations when requested at District-sponsored events.
But the Districts also provide a forum for residents of The Villages to create clubs which, in
turn, provide services, programs, and activities to other residents. Thus, the circumstances
of the instant case are distinguishable from the relationship between the HGMD and the
HGA in Kerr. In that case, the HGMD contractually delegated all responsibility for the
operation of services, activities, and programs which the HGMD, otherwise, would have
been responsible for itself. No such relationship exists between the Districts and the RLGs.
Here, the Districts, through the Recreation Department, offer their own services, programs,
and activities for which they provide accommodations, but those are distinct from the
activities of RLGs.
The Court agrees with Plaintiffs that the evidence reflects that the Districts, through
the Recreation Department, seek out volunteers to establish new RLGs, help the volunteer
leaders “advertise” the new RLGs to gauge interest, provide advertising of RLG events, and
facilitate the formation of RLGs and their use of Recreation Department facilities. As such,
the Court recognizes that the facts of the instant action do not fit neatly into the ADA’s
regulatory provisions or the cited precedent. However, the undisputed facts establish that
while the Districts facilitate both the formation and operation of the RLGs, the RLGs
programs, activities, and events are planned, controlled, and lead by private residents of The
Villages, and actions taken on behalf of the RLGs are not actions of the Districts.
-41-
Plaintiffs also argue that “Federal Regulations do not impose liability only where the
relationship is contractual or involves other direct action” in that the Districts “can also be
liable for making ‘other arrangements’ to administer programs that have the effect of
discriminating.” Response at 27. According to Plaintiffs, “[b]y making the [RLG] [v]olunteers
responsible for accommodating individuals with disabilities, Defendants have, through ‘other
arrangements,’ utilized a method of administration that has the effect of discriminating
against deaf individuals in violation of 28 C.F.R. § 35.130(b)(3).” Id. (emphasis in original).
28 C.F.R. § 35.130(b)(3) provides:
(3) A public entity may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration:
(I) That have the effect of subjecting qualified individuals with
disabilities to discrimination on the basis of disability [or]
(ii) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the public entity's
program with respect to individuals with disabilities[.]
28 C.F.R. § 35.130(b)(3).
This regulation prohibits discriminatory administration by a public
entity. See Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1175-76 (N.D. Cal. 2009)
(stating that 28 C.F.R. § 35.130(b)(3) “does not create rights that do not exist under the
ADA” but that “it merely prohibits public entities from employing methods of administration
which have the effect of discriminating against qualified disabled individuals on the basis of
their disabilities”). Further, this “provision applies to written policies as well as actual
practices, and is intended to prohibit both ‘blatantly exclusionary policies or practices’ as well
as ‘policies and practices that are neutral on their face, but deny individuals with disabilities
-42-
an effective opportunity to participate.’” Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 995
(N.D. Cal. 2010). Indeed, the Appendix to this regulation explains that this paragraph
prohibits the public entity from utilizing criteria or methods of administration
that deny individuals with disabilities access to the public entity's services,
programs, and activities or that perpetuate the discrimination of another public
entity, if both public entities are subject to common administrative control or
are agencies of the same State.
28 C.F.R., Pt. 35, App. B. Upon review, the Court is of the view that Plaintiffs’ interpretation
of this regulation is too broad. Liability under this regulation must still hinge on the fact that
the program, service or activity subject to the allegedly discriminatory “methods of
administration” is a program, service, or activity of the public entity. Ultimately, the facts
establish that while the Districts facilitate the formation and logistical functions of RLG
programs and activities, the RLG programs and activities are distinct from those offered by
the Districts themselves. As such, the Districts cannot be held liable for the RLG’s alleged
failures to accommodate with respect to the RLG programs, activities, and events.
ii.
Whether the RLGs are instrumentalities of the Districts
Having determined that participation in the RLGs is not a program, service, or activity
of the Districts, the Court next turns to the question of whether the RLGs themselves are
public entities under Title II of the ADA. In the Motion, the Districts argue that [u]nder Title
II of the ADA, to become an instrumentality of a State, the entity must be a governmental
entity or be a unit created by them.” Motion at 40 (citing Edison, 604 F.3d at 1310). The
Districts correctly identify the controlling definition in the Eleventh Circuit with respect to what
constitutes an “instrumentality of a State” under Title II. In light of this definition, the Districts
assert that the RLGs are private entities - not governmental units and not created by the
-43-
government. Id. In opposition, Plaintiffs rely on the DOJ’s TAM, which offers guidance
regarding what constitutes a public entity, and assert that the RLGs are “covered by Title II.”
Response at 23.
The regulations issued by the DOJ restate the definition of public entity found in the
statute. See 28 C.F.R. § 36.104; see also Melton v. Orange Cnty. Democratic Party, 304
F. Supp. 2d 785, 787 (M.D.N.C.). However, the DOJ has issued the TAM pursuant to 42
U.S.C. § 12206(c) which provides a more detailed explanation. See Melton, 304 F. Supp.
2d at 787. Like the ADA regulations, the agency’s interpretations in the TAM are given
controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.
See Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (granting Chevron37 deference to the
DOJ’s TAM regarding Title III of the ADA).
The TAM states that, as a general rule, “Title II is intended to apply to all programs,
activities, and services provided or operated by State and local governments.”
The
American with Disabilities Act: Title II Technical Assistance Manual II-1.2000 (Nov. 1993)
(http://www.ada.gov/taman2.html). The TAM further explains:
In some cases it is difficult to determine whether a particular entity that is
providing a public service, such as a library, museum, or volunteer fire
department, is in fact a public entity. Where an entity appears to have both
public and private features, it is necessary to examine the relationship
between the entity and the governmental unit to determine whether the entity
is public or private. Factors to be considered in this determination include -1) Whether the entity is operated with public funds;
2) Whether the entity's employees are considered government
employees;
37
Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 844 (1984).
-44-
3) Whether the entity receives significant assistance from the
government by provision of property or equipment; and
4) Whether the entity is governed by an independent board
selected by members of a private organization or a board
elected by the voters or appointed by elected officials.
Id. Plaintiffs argue that “application of these factors leads to the conclusion that the [RLGs]
are covered by Title II.” Response at 23. The Court disagrees.
With respect to the first factor, Plaintiffs assert that “[t]he [RLGs] are operated by
[A]menities [F]ees that are charged to each resident, which operate just like taxes[.]” Id.
However, the RLGs are not operated by Amenities Fees - the Recreation Department
facilities, which the RLGs use, and the Recreation News, in which the RLGs are permitted
to advertise their meetings, are funded by the Amenities Fees. Henry Dep. at 21-22; Tutt
Dep. I at 49. But the functions and operations of the RLGs receive no funding from
Amenities Fees. Thus, this factor weighs against a finding that the RLGs are public entities.
With regard to the second factor, Plaintiffs argue that “[t]he [RLGs’] employees, for purposes
of this analysis, are the [RLG volunteers], who operate at [the Districts’] pleasure and are
subject to [the Districts’] guidelines and hiring process.” Response at 23. However, the
record does not support the conclusion that the RLG volunteers are “employees” of the
Districts, so this factor weighs against a finding that the RLGs are public entities. As to the
third factor, Plaintiffs argue that “[t]he [RLGs] receive government assistance in the form of
[A]menities [F]ees[.]” Id. The Districts do indeed provide assistance to the RLGs by
allowing them to use the Recreation Department facilities without paying rental fees by virtue
of RLG members’ payment of Amenities Fees. Thus, this factor weighs in favor of finding
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that the RLGs operate as public entities. Finally, with regard to the fourth factor, Plaintiffs
argue that “[t]he [RLGs] in question are created through an application and appointment
process undertaken by the Districts, which are public entities.” Id. However, the Court
struggles to see how this factor applies to the RLGs at all. The RLGs are not “governed” by
any entity. The Districts do offer assistance in helping residents create RLGs, but once
established, the record establishes that the Districts do not interfere with the governance or
management of RLGs other than to help facilitate their use of the Recreation Department
facilities and ensure that in doing so they are in compliance with Recreation Department
rules. Thus, the fourth factor weighs against a finding that the RLGs operate as public
entities. In consideration of the record, the Court is of the view that, on balance, applying
the TAM’s guidance, the RLGs are not public entities.
Next, Plaintiffs assert that “[t]o the extent that [t]he Districts are a public entity and the
[RLG] [v]olunteers are private parties,” the TAM’s guidance relating to a joint venture
between a public entity covered under Title II of the ADA and private party covered under
Title III indicate that “both [entities] are responsible for ADA compliance.” Response at 2324 (emphasis in original). The relevant section of the TAM provides:
II-1.3000 Relationship to title III. Public entities are not subject to title III of
the ADA, which covers only private entities. Conversely, private entities are
not subject to title II. In many situations, however, public entities have a close
relationship to private entities that are covered by title III, with the result that
certain activities may be at least indirectly affected by both titles.
The Americans with Disabilities Act: Title II Technical Assistance Manual II-1.3000. The
TAM provides four illustrations of this provision, one of which Plaintiff cites in the Response,
see Response at 23:
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ILLUSTRATION 3: A city engages in a joint venture with a private corporation
to build a new professional sports stadium. Where public and private entities
act jointly, the public entity must ensure that the relevant requirements of title
II are met; and the private entity must ensure compliance with title III.
Consequently, the new stadium would have to be built in compliance with the
accessibility guidelines of both titles II and III. In cases where the standards
differ, the stadium would have to meet the standard that provides the highest
degree of access to individuals with disabilities.
The Americans with Disabilities Act: Title II Technical Assistance Manual II-1.3000. Plaintiffs
argue that
[t]he facts of this case fit this example of a ‘joint venture’ between a public
entity and a private party. The evidence of record supports this analysis
because [t]he Districts actively promote and advertise the Groups, and the
Groups would not exist without intervention by [t]he Districts.
Response at 23. This argument misapprehends section II-1.3000 of the TAM. The basis
for Title II liability under this section hinges on circumstances where the public entity subject
to Title II (here, the Districts) engages in either a contractual relationship or joint endeavor
with an entity subject to Title III of the ADA, which governs public accommodations.
Plaintiffs have neither alleged nor offered any factual or legal basis to support a conclusion
that the RLGs are public accommodations subject to Title III.
In light of the foregoing, the undersigned concludes that the Districts are not liable for
the alleged discrimination of the RLGs because the RLGs are not programs, services, or
activities of the Districts and because the RLGs are not instrumentalities of the Districts
under Title II. As such, there are no genuine issues of material fact with respect to Plaintiffs’
ADA claim against the Districts based on the failure to provide accommodations for activities
of the RLGs, and as to that claim in Count I, summary judgment is due to be entered in favor
of the Districts.
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3.
Count IV: RA
Section 504 of the RA states, in the pertinent part, that:
No otherwise qualified individual with a disability in the United States . . . shall,
solely by reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance[.]
29 U.S.C. § 794(a). The statute defines the term “program or activity” as including all of the
operations of—
(1)(A) a department, agency, special purpose district, or other instrumentality
of a State or of a local government; or
(B) the entity of such State or local government that distributes such
assistance and each such department or agency (and each other State or
local government entity) to which the assistance is extended, in the case of
assistance to a State or local government . . . any part of which is extended
Federal financial assistance.
Id. § 794(b).
In Count IV of the Complaint, Plaintiffs allege a claim against the Districts under the
RA. See Complaint ¶¶ 370-379. Plaintiffs contend that they are qualified persons as
required by the RA and that the Districts are a “special purpose district or local government
that receives federal funding and is [sic] required to comply with the mandates under Section
504 of the [RA].” Id. ¶¶ 372, 373. Plaintiffs further assert that “[t]he [Districts’] programs,
services and activities including” the RLGs and other amenities offered by the Districts “are
covered programs or activities under the [RA].” Id. ¶ 374. In support of their RA claim,
Plaintiffs allege the same facts as they assert in their ADA claim. Id. ¶ 375.
The Districts move for summary judgment as to Count IV, arguing that “[w]ith the
exception of its federal funding requirement, the RA uses the same standards as the ADA,
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and therefore, cases interpreting either are applicable and interchangeable.” Motion at 51.
As such, the Districts argue that Plaintiffs’ ADA claim fails for the same reasons Plaintiffs’
RA claim fails.38 The Court agrees.
“With the exception of its federal funding requirement, the RA uses the same
standards as the ADA, and therefore, cases interpreting either are applicable and
interchangeable.” Badillo v. Thorpe, 158 F. App'x 208, 214 (11th Cir. 2005) (citing Cash v.
Smith, 231 F.3d 1301, 1305 & n.2 (11th Cir. 2000)); see also Wendel, 80 F. Supp. 3d at
1304-05 (holding that the licensor public entity Florida Department of Highway Safety and
Motor Vehicles “is not responsible for a violation that it did not directly carry out” and that
“this analysis is equally applicable to the RA and [Title II] ADA claims, which both require a
showing of discrimination on behalf of the” public entity); Haddad v. Arnold, 784 F. Supp. 2d
1284 (M.D. Fla. 2010) (noting that “Plaintiff’s Rehab Act claim is essentially the same as her
[Title II] ADA claim, and discrimination claims of this kind are analyzed similarly under the
two acts” thus, “the Court will refer primarily to the ADA for the sake of brevity”). Thus,
because the Court has concluded that the Districts are not liable under Title II of the ADA
for the alleged discrimination in the provision of programs, services, and activities by the
RLGs, the Districts are similarly not liable under the RA. As such, there are no genuine
issues of material fact with respect to Plaintiffs’ RA claim against the Districts as to the
activities of the RLGs, and as to that claim in Count IV, summary judgment is due to be
entered in favor of the Districts.
38
Additionally, the Districts argue that because the Districts are not recipients of federal funds, this
provides another basis for dismissal of Plaintiffs’ RA claim. Motion at 51. However, the Court need not reach
this argument for the reasons set forth in the body of this Order.
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4.
Count III: FHA
In Count III of the Complaint, Plaintiffs allege a claim under the FHA against the
Districts. See Complaint ¶¶ 356-369. Plaintiffs assert that the Districts are “a municipal
organization required to comply with the mandates under 42 U.S.C. § 3604 of the FHA.” Id.
¶ 358. Further, Plaintiffs contend that they are disabled and that they are homeowners in
The Villages and, as such, are qualified persons under the FHA. Id. ¶ 359. Plaintiffs further
allege that they own homes or are renters of homes that are dwellings as defined by the
FHA and that “[t]he amenities are services connected to each home and are subject to 42
U.S.C. § 3604 of the FHA.” Id. ¶¶ 360-361. Plaintiffs point to the same discriminatory
actions as violating the FHA as they do in their claims under the ADA and RA. See id. ¶
362.
The FHA provides that
it shall be unlawful . . . [t]o discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or renter because of a
handicap of - (A) that buyer or renter,
(B) a person residing in or intending to reside in that dwelling after it is
so sold, rented, or made available; or
(C) any person associated with that buyer or renter.
42 U.S.C. § 3604(f)(1). The FHA makes it unlawful also
[t]o discriminate against any person in the terms, conditions, or privileges of
sale or rental of a dwelling, or in the provision of services or facilities in
connection with such dwelling, because of a handicap of - (A) that person; or
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(B) a person residing in or intending to reside in that dwelling after it is
so sold, rented, or made available; or
(C) any person associated with that person.
Id. § 3604(f)(2). Discrimination under this section of the FHA includes “a refusal to make
reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal opportunity to use and
enjoy a dwelling.” Id. §3604(f)(3)(B); see also Bhogaita v. Altamonte Heights Condominium
Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014) (“The FHA prohibits discriminating against
a person on the basis of a ‘handicap,’ or a disability, by refusing to make reasonable
accommodations when necessary to afford the person equal opportunity to use and enjoy
a dwelling.”). Further, HUD has promulgated a regulation which defines a “dwelling unit” to
include “public and common use areas.”39 See 24 C.F.R. § 100.204(a).40 A different HUD
regulation defines “Discrimination in terms, conditions and privileges and in services and
facilities” and provides that “[p]rohibited actions” include “[l]imiting the use of privileges,
39
The FHA defines “Dwelling” to mean
any building, structure, or portion thereof which is occupied as, or designed or intended for
occupancy as, a residence by one or more families, and any vacant land which is offered for
sale or lease for the construction or location thereon of any such building, structure, or portion
thereof.
42 U.S.C.A. § 3602(b).
40
This regulation provides in full:
It shall be unlawful for any person to refuse to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be necessary to afford a
handicapped person equal opportunity to use and enjoy a dwelling unit, including public and
common use areas.
24 C.F.R. § 100.204(a).
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services, or facilities associated with a dwelling because of . . . handicap . . . of an owner,
tenant or a person associated with him or her.” 24 C.F.R. § 100.65(b)(4) (emphasis added).
In seeking summary judgment as to Plaintiffs’ FHA claim, the Districts argue that
“[t]he Plaintiffs have not, and cannot, assert that sign language interpreters are a necessary
accommodation for their use and enjoyment of their dwelling unit” and that “[l]ikewise, they
cannot contend that interpreters are needed so that they may use public and common
areas.” Motion at 47. The Districts note that under 24 C.F.R. § 100.204, accommodations
are required to be provided so that a handicapped person can use a “dwelling unit” or “public
and common use areas.” Id. at 48. However, the Districts maintain that this regulation
“cannot be read to impose an obligation on the seller or landlord of property to provide
accommodations to the handicapped buyer or lessee so that person can attend club
meetings held at their own dwellings” or “at the seller or landlord’s common areas or
facilities.” Id. Instead, the Districts assert that “[t]he regulation is clear that under the FHA[,]
accommodations are necessary only for the use of the property, not for activities that might
be engaged in on that property.” Id. Accordingly, the Districts dispute what they assert is
Plaintiffs’ argument that participation in the RLGs is an amenity and amenities are services
connected to each home.
Id.
Additionally, while acknowledging that 24 C.F.R. §
100.65(b)(4) provides that prohibited actions under the FHA include “limiting the use of
privileges, services or facilities associated with a dwelling because of . . . handicap,” the
Districts assert that participation in a RLG is not a service under the FHA, nor are the RLGs
associated with the dwelling. Id. The Districts contend that the Amenities Fees charged to
each residential unit entitles the homeowner to use of the recreational facilities but that the
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Court should not treat the RLGs as if they are facilities. Id. at 49. Further, the Districts
maintain that even if one were to assume that participation in the RLGs is a “service”,
participation in the RLGs is in no way connected to the Plaintiffs’ residences. Id. Last, the
Districts contend that the FHA is inapplicable to post-sale activity. See id. at 50 n.8.
In opposition to the Motion, Plaintiffs argue that the RLGs “are both a service and a
privilege of living at The Villages, as they are open to all residents (but only residents) by
virtue of payment of the [a]menities [f]ees.” Response at 33. Plaintiffs, thus, contend that
the RLGs are “privileges or services associated with Plaintiffs’ dwellings, offered by [the
Districts], [and] over which [the Districts] retain the right and power to control.” Id. at 35.
As previously stated on the record at the September 9, 2014 Hearing, see Clerk’s
Minutes (Doc. 115), the Eleventh Circuit has, in at least in two cases, decided post-sale
failure to accommodate claims under the FHA. See Bhogaita, 765 F.3d at 1281 (11th Cir.
2014); see also Hawn v. Shoreline Towers Phase 1 Condominium Ass’n, Inc., 347 F. App’x
464, 465 (11th Cir. 2009). Thus, the Court rejects the Districts’ argument seeking summary
judgment on the basis that post-sale activities are not covered by the FHA.
However, whether Plaintiffs can establish the elements of a failure-to-accommodate
claim presents a closer question.
A successful failure-to-accommodate claim has four elements. To prevail, one
must prove that (1) he is disabled within the meaning of the FHA, (2) he
requested a reasonable accommodation, (3) the requested accommodation
was necessary to afford him an opportunity to use and enjoy his dwellings,
and (4) the defendants refused to make the accommodation.
Bhogaita, 765 F.3d at 1285 (citing Schwarz v. City of Treasure Island, 544 F.3d 1201, 121819 (11th Cir. 2008)). Plaintiffs’ failure to accommodate claim turns on whether the Districts
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have refused to make an accommodation necessary to afford Plaintiffs an opportunity to use
and enjoy services and facilities associated with their dwellings, which include public and
common areas. Relevant to this question, at least two district courts in this circuit have
recognized the distinction under the FHA between purchasing a standalone dwelling and
purchasing a dwelling in a planned development whereby the homeowner becomes subject
to the homeowner’s association rules and restrictions, and is, in turn, entitled to the provision
of services associated with home ownership. See Savanna Club Worship Serv., Inc. v.
Savanna Club Homeowners’ Ass’n, Inc., 456 F. Supp. 2d 1223, 1230 (S.D. Fla. 2005); Smith
v. Zacco, No. 5:10-cv-360-TJC-JRK, 2011 WL 12450317, at *6 (M.D. Fla. March 8, 2011).
In Savanna Club, the plaintiffs had historically conducted religious services in a
planned community’s club house or common areas until the planned community’s
homeowner’s association adopted a rule disallowing anyone from conducting religious
services in any of the club houses or common areas. Id. at 1224. In addressing the
plaintiffs’ claim that this rule violated the FHA as discrimination based upon religion, the
court noted that “[t]he FHA does not define, and the Eleventh Circuit has not addressed, the
issue of what constitutes ‘discrimination . . . in the provision of services.’” Id. at 1227-28.
The court first rejected the defendant’s argument that the FHA “was geared at preventing
discrimination in the context of sale or acquisition of housing only” and that the FHA does
not reach “post-acquisition discrimination.” Id. at 1228-29. Indeed, the court stated that
such an “interpretation certainly cannot apply to unique planned communities” such as the
one at issue in that case because cases declining to apply the FHA to post-sale
discrimination “did not directly address the provision of services as they relate to planned
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communities where some types of services are in fact part and parcel with home ownership.”
Id. at 1229. Relying upon the Florida Homeowner’s Association Act, the court determined
that “part and parcel of the purchase of a home within a planned community are the rights
and privileges associated with membership within the community” and that “[i]t would
appear, therefore, that in the context of planned communities, where association members
have rights to use designated common areas as an incident of their ownership,
discriminatory conduct which deprives them of exercising those rights would be actionable
under the FHA.” Id. at 1230. Also relevant to the court’s analysis was the HUD regulation’s
use of the term “associated with a dwelling” and not the phrase “related to the sale thereof”,
finding that “[t]his distinction makes sense given the unique nature of planned community
home ownership.” Id. Thus, the court stated that “if an association member was completely
denied access to a clubhouse or other common area because they were Jewish or of
another religion, such denial would clearly be a deprivation of full use of the incidents of
ownership under the FHA.” Id. The court, however, determined that the plaintiffs’ claims
must fail because the plaintiffs had not established that “based on religion, [they were]
denied provision of services protected by the FHA which were available to other
homeowners.” Id. at 1232. Indeed, the court stated that “[n]one of the Club’s homeowners
have been denied access to Savanna’s common areas. Rather, they have been denied
permission to use the common areas to conduct their religious services.” Id. As such, the
Court determined “that the FHA only applies to those deprivations in the provision of
services which cause a complete denial of access to such services.” Id.
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In applying Savanna Club’s reasoning to the instant case, the Court will assume for
purposes of this discussion that use of the Recreation Department facilities is a “part and
parcel of the purchase a home” within The Villages. In Savanna Club, the homeowner’s
association rule did not prevent individuals affiliated with certain religions from accessing
designated common areas. Rather, these individuals were prevented from conducting
religious activities in these common areas. Similarly, the deaf residents of The Villages are
not denied access to Recreation Department facilities. Rather, the Recreation Department,
through the Districts, has declined to offer sign language interpreters for events hosted by
the RLGs at the Recreation Department facilities. The record demonstrates that access to
the Recreation Department facilities is the type of “use of privileges, services, or facilities
associated with a dwelling” which the FHA is intended to cover because the Amenities Fees
paid by homeowners in The Villages are used to operate these facilities. And while the
Districts limit participation in the RLGs to residents of The Villages and limited guests
because RLGs meet at Recreation Department facilities, the RLGs are not - for all of the
reasons discussed above regarding Plaintiffs’ ADA claim - a service of the Districts for
purposes of the FHA. Thus, Plaintiffs’ theory of liability it too attenuated to be actionable,
particularly in light of the FHA’s policy as being intended to provide access to housing. As
such, the Districts are not liable under the FHA for the alleged discrimination by the RLGs.
Because there are no genuine issues of material fact with respect to Plaintiffs’ FHA claim
against the Districts, summary judgment is due to be entered in favor of the Districts as to
Count III.
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II.
Defendant, The Villages Charter School, Inc. d/b/a The Villages Lifelong
Learning College’s Motion for Summary Judgment and Memorandum of Law
(Doc. 132)
A.
Background
1.
The Villages Charter School, Inc., and the Villages Charter
Schools
The Villages Charter School, Inc. (the “Charter School Corporation”), is a private,
domestic, not for profit corporation incorporated in Florida in 1999. Affidavit of Randy
McDaniel ¶ 3 (Doc. 133; McDaniel Aff.). The Charter School Corporation operates three
charter schools, an elementary school, middle school, and high school (hereinafter, the
“Villages Charter Schools”), under a contract, or charter, with the Sumter County District
School Board (“Sumter County”), which acts as the sponsoring school district of the Villages
Charter Schools. See id. ¶ 2; Independent Audit Records 2012-2014 at 63 (Doc. 142-16;
Independent Audit Records 2012-2014); see also FLA. STAT. section 1002.33(5)(a)1. The
Charter School Corporation operates the Villages Charter Schools as “charter schools-inthe-workplace” pursuant to Florida Statutes section 1002.33(15). McDaniel Aff. ¶ 4. As
charter schools in the workplace, the children of employees of the developer of The Villages,
The Villages of Lake Sumter, Inc., may attend the Villages Charter Schools. Id. ¶ 6. Under
Florida law, the charter must include “[t]he governance structure of the school, including the
status of the charter school as a public or private employer as required in paragraph 12(I).”41
41
FLA. STAT. § 1002.33(i) provides:
A charter school shall organize as, or be operated by, a nonprofit organization. A charter
school may be operated by a municipality or other public entity as provided for by law. As such,
the charter school may be either a private or a public employer. As a public employer, a charter
(continued...)
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FLA. STAT. § 1002.33(7)(a)15. As such, the Villages Charter Schools are organized as
“private employers” as defined in Florida Statutes section 1002.33, and, accordingly,
“employees of the [Charter School Corporation] do not participate in the Florida Retirement
System.” McDaniel Aff. ¶ 8.
The Charter School Corporation is audited every year by a private auditor, and the
audit results are then filed with the State of Florida. See Deposition of Randy McDaniel at
54 (Doc. 142-2; McDaniel Dep.); see generally Independent Audit Records 2012-2014;
Independent Audit Records 2008-2012 (Doc. 142-15; Independent Audit Records 20082012). Additionally, as a school district board, Sumter County is audited by the State of
Florida. McDaniel Dep. at 54. Because the Villages Charter Schools are a “component unit”
of Sumter County, the Villages Charter Schools’ financial reports are required to be included
in Sumter County’s Annual Financial Report. See FLA. STAT. § 1002.33(9)(g)2. (“Charter
schools shall provide annual financial report and program cost report information in the
state-required formats for inclusion in district reporting in compliance with s. 1011.60(1)[42].”).
41
(...continued)
school may participate in the Florida Retirement System upon application and approval as a
“covered group” under s. 121.021(34). If a charter school participates in the Florida Retirement
System, the charter school employees shall be compulsory members of the Florida Retirement
System. As either a private or a public employer, a charter school may contract for services
with an individual or group of individuals who are organized as a partnership or a cooperative.
Individuals or groups of individuals who contract their services to the charter school are not
public employees.
FLA. STAT. § 1002.33(12)(i).
42
This provision of the Florida code provides:
Each district which participates in the state appropriations for the Florida Education Finance
Program shall provide evidence of its effort to maintain an adequate school program
throughout the district and shall meet at least the following requirements:
(continued...)
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The Holding Company of The Villages, Inc. (the “Holding Company”) provides
operating funds for the Villages Charter Schools. McDaniel Dep. at 55-56; see also Affidavit
of Gina Ritch ¶ 9 (Doc. 134; Ritch Aff.) (“All such contributions from The Villages Holding
Company have been used to supplement the K-12 operations of the charter school[.]”).
However, there is some ambiguity in the record with respect to whether the Holding
Company provides these operating funds to the Charter School Corporation or directly to
the Villages Charter Schools. The Charter School Corporation’s Independent Audit Records
state that “[t]he Villages Charter School, Inc. is a charter school in the workplace and is
subsidized by the Holding Company of The Villages, Inc. (The Villages).[43] The Villages
makes contributions to the Charter School to supplement its operations as needed.” See
Independent Audit Records 2012-2014 at 22, 52. Thus, the Independent Audit Records do
not appear to distinguish between the Charter School Corporation and the Villages Charter
Schools as separate entities. According to the Charter School Corporation’s Director of
Education, Randy McDaniel, due to a deficit in the Charter Schools Corporation’s budget,
42
(...continued)
(1) Accounts and reports. -- Maintain adequate and accurate records, including a system of
internal accounts for individual schools, and file with the Department of Education, in correct
and proper form on or before the date due as fixed by law or rule, each annual or periodic
report that is required by rules of the State Board of Education.
FLA. STAT. § 1011.60(1).
43
In the Independent Audit Records, the private auditors define “the Holding Company of The Villages,
Inc.” as “The Villages.” See, e.g., Independent Audit Records 2012-2014 at 22. In their affidavits,
representatives for the Charter School Corporation reference “The Villages Holding Company” as well as “the
Holding Company of [T]he Villages Inc.” See Affidavit of Gina Ritch ¶ 9 (Doc. 134; Ritch Aff.); Affidavit of Gary
Lester ¶ 2 (Doc. 136; Lester Aff.). The Court will continue to refer to the Holding Company of The Villages, Inc.,
as the “Holding Company.”
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the “developer”44 makes up that deficit by providing operating funds for the Villages Charter
Schools to the Charter School Corporation. McDaniel Dep. at 55-56. However, John Wise,
the Vice President and CFO of the Holding Company and a member of the Board of
Directors of the Charter School Corporation, testified that “[t]he Holding Company of [T]he
Villages has provided advances to the Villages Charter School over the last few years to
address a timing issue with respect to the receipt of funds from Sumter County.” Affidavit
of John Wise ¶ 6 (Doc. 135; Wise Aff.).45 As set forth in the Analysis portion of this Order,
because the evidence establishes that the Holding Company’s funds are used for the
44
There appears to be some ambiguity in the record regarding whether it is the Holding Company of
The Villages or the developer of The Villages, The Villages of Lake Sumter, Inc., which provides operating funds
to the Charter School Corporation. For example, the Director of Accounting for the Charter School Corporation,
Gina Ritch, see Ritch Aff. ¶ 2, testified that “the developer gives the “[C]harter [S]chool, [I]nc., money to cure
any debts or deficits every year[.]” See Deposition of Gina Ritch at 16 (Doc. 142-6; Ritch Dep.). She then
explained, “Our corporate sponsor does contribute to the charter school to help support its operations as
needed.” Id. Additionally, when asked whether “the holding company of The Villages, is The Villages of Lake
Sumter, Inc., or . . . some other entity”, Ritch testified, “I’m not totally familiar with the structure, but I believe The
Villages Lake Sumter, Inc., I think is a part of the holding company of The Villages. . . . I’m not sure if it’s a
subsidiary or if it’s just a department or I’m not sure.” Ritch Dep. at 30. However, as discussed in the body of
this Order, whether the Holding Company or The Villages’ developer provides these operating funds is not
material for purposes of resolution of the Motion. Further, because the Charter School Corporation’s
representatives appear to reference the Holding Company of The Villages and The Villages of Lake Sumter,
Inc., interchangeably, for the sake of clarity, the Court will refer to the entity which provides operating funds as
“the Holding Company.”
45
There is also some additional ambiguity in the record with regard to whether the Holding Company
provides “advances” or “contributions.” For example, Wise testified in his deposition that the Holding Company
provides “advances” and that “[t]here is an obligation to pay back these advances if money becomes available
to the charter school.” Deposition of John Wise at 8 (Doc. 142-1; Wise Dep.). However, Wise further testified
that he was not aware of any agreement between the Holding Company and the Charter School Corporation
requiring the Charter School Corporation to pay the funds back to the Holding Company should funds become
available. Id. at 8-9. He also testified that he does not “think anybody believes that all of the funds advanced
will be paid back any time in the future” and that he believes the Charter School Corporation “books” the Holding
Company funds “initially as an advance and then if they need that money, it becomes a contribution.” Id. at 1112. Ritch testified that the funds from the Holding Company are contributions which are recognized as revenue,
so the funds are not loans, and there is no obligation for the Charter School Corporation to pay them back, see
Ritch Dep. at 21-23. As set forth in the body of this Order, the issue of whether the funds provided by the
Holding Company are contributions or advances is not material for purposes of summary judgment.
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operations of the Villages Charter Schools and not the Lifelong Learning College, this
ambiguity in the record is not material for purposes of summary judgment.
2.
The Lifelong Learning College
In addition to the three charter schools, the Charter School Corporation also operates
three “fee-based” programs - an early childhood development program, an after-school
program, and a lifelong learning program, The Villages Lifelong Learning College (“LLC”).
Ritch Dep. at 7; McDaniel Aff. ¶ 9; see also Independent Audit Records 2012-2014 at 63.
The Villages Lifelong Learning College is a fictitious name owned by the Charter School
Corporation, McDaniel Aff. ¶ 9, and neither the early childhood development program nor
the LLC are included in the charter between Sumter County and the Charter School
Corporation. Independent Audit Records 2012-2014 at 63.
The LLC offers a personal enrichment curriculum for adults living in The Villages and
surrounding areas. McDaniel Aff. ¶ 9. It offers between 450 and 500 courses per semester
in each of two semesters and also offers a speaker series which includes 1-2 speakers per
month on varying topics. Id. ¶ 11. The enrichment classes are all non-credit courses and
cover topics including cooking, photography, yoga, making clay pots, art, and interior design.
Affidavit of Michelle Shideler ¶ 5 (Doc. 137; Shideler Aff.). To register for a class, an
applicant must complete a registration form and include payment for the course. McDaniel
Aff. ¶ 12. Course fees range from $5.00-$90.00 per course which covers the instructor fee,
room rent, and administrative costs. Id. Most courses last between six and eight weeks.
Id.
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The LLC operates separate from the Villages Charter Schools with its own staff,
operations, budget and bank accounts. McDaniel Aff. ¶ 10. Indeed, the LLC is “financially
self-sustaining” in that its operating income is derived solely from registration and class fees.
Id. ¶ 13; see also Ritch Aff. ¶ 4 (“[A]ll expenses of The Villages Lifelong Learning College
are paid from registration and related fees received from adult students attending The
Village Lifelong Learning College.”). Thus, the LLC does not receive any funds from the
Charter School Corporation. McDaniel Aff. ¶ 14. Additionally, employees of the LLC are
paid from funds generated by the LLC’s operations and not from funds received from any
government source for the Villages Charter Schools’ operations. Id. ¶ 10. The LLC conducts
most of its classes at the Villages Charter Schools and pays for its use of those facilities
from course fees. Id. ¶ 14. As such, course fees are set in advance of the course offering
to compensate instructors and pay rent and overhead associated with operating the LLC.
Ritch Aff. ¶ 5. The LLC does not generate a profit for the Charter School Corporation, but
it does cover its own costs and overhead. Id.
The revenue and expenses of the LLC are included on the financial statements and
Independent Audit Records of the Charter School Corporation. See Independent Audit
Record 2008-2012; Independent Audit Records 2012-2014; Ritch Aff. ¶ 3. However, the
Charter School Corporation’s Accounting Department “monitor[s] the financial performance
of The Villages Lifelong Learning College separately and track[s] its performances internally
within the organization.” Ritch Aff. ¶ 3.
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3.
Plaintiffs’ requests for sign language interpreters at the LLC
Plaintiffs have requested that the LLC provide sign language interpreters for LLC
courses and lectures. McDaniel Dep. at 46-48. According to McDaniel, he became aware
of these requests through the Director of the LLC, Michelle Shideler. McDaniel Dep. at 4849; Shideler Aff. ¶ 2. At that point, McDaniel told Shideler to investigate whether it would be
possible for the LLC to provide sign language interpreters. McDaniel Dep. at 49-50.
Shideler inquired into the cost and availability of providing interpreters and reported back to
McDaniel that providing sign language interpreters was not something the LLC could do due
to the “sustainability” and “availability” of providing such an accommodation. Shideler Aff.
¶ 10; McDaniel Dep. at 49-51. McDaniel testified that providing sign language interpreters
would not be sustainable because it was cost prohibitive for the LLC and that there was not
adequate availability of certified sign language interpreters. McDaniel Dep. at 50-51. As
such, the Charter School Corporation has never provided certified sign language interpreters
for LLC courses. Deposition of Michelle Shideler at 22-23 (Doc. 142-3; Shideler Dep.).46
4.
Dragon NaturallySpeaking
In 2012, the LLC purchased the Dragon NaturallySpeaking (“DNS”) program, an
automatic speech recognition talk-to-text program, for use in LLC courses and lectures. See
Report of Mark A. Mandel at 3 (Doc. 142-11; Mandel Report); see Shideler Dep. at 44.
Soon thereafter, the LLC attempted a “trial run” of DNS at the LLC Instructor Catalog
Meeting with Plaintiff Lynn Stirling. See Shideler Dep. at 47-48, 50, 160. Shideler testified
46
Shideler also testified that only one deaf individual, Bernie Brown, has enrolled for a class through
the LLC. Shideler Dep. at 57.
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that she would “evaluate the meeting as” “promising.” Id. at 169. However, Stirling testified
that some of the words that showed up on the screen “didn’t make any sense” and that she
became frustrated with the program and asked for an interpreter. See Deposition of Lynn
Stirling at 84-85 (Doc. 131-31).
Next, in the spring of 2013, Shideler conducted an office demonstration of DNS for
Plaintiffs Beth and Stephen Holst. Shideler Dep. at 142-43. Beth Holst testified that since
she was able to read Shideler’s lips during the demonstration, she could tell that some
words displaying on the DNS screen did not match what Shideler was saying. See
Deposition of Beth Holst at 37 (Doc. 131-11). Similarly, Stephen Holst testified that the DNS
program skipped many words. See Deposition of Stephen Holst at 21 (Doc. 131-12). After
the office demonstration, Beth Holst told Shideler that “she was displeased with the product”
and “had no desire to use the product.” Shideler Dep. at 144.
In May 2014, Plaintiff Bernie Brown attended a two-day lecture on World War II taught
by a guest speaker with the aid of DNS. See Declaration of Bernie Brown in Support of
Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment (Doc. 153; Brown Decl.).
Prior to the lecture, the guest speaker trained with DNS for up to three and a half hours and
tested it on another course. Shideler Dep. at 197-98. Plaintiffs included in the record a copy
of the DNS transcript from this lecture. See Lecture Transcript (Doc. 153-1; Lecture
Transcript). Shideler testified that during the lecture, no one was designated to make
corrections on the screen as errors came up, and Brown was never provided with a
corrected transcript. Shideler Dep. at 83. In his email correspondence with LLC employee
Dawn Tripp following the lecture, Brown described the DNS program as showing “lots of
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typos and missing words and sentences.” See Brown E-mail (Doc. 153-2; Brown E-Mail).
Additionally, Brown stated that when the speaker “used the laser to highlight information on
the slides, no words were printed on the screen until long after he was finished”, so he
“missed out on a great deal of information.” Id. Further, Brown wrote that at the end of the
lecture when the audience asked questions, nothing came on the screen “so [he] was
completely out of the loop” and “frustrated” and “felt left out in the whole evening[.]” Id.
Brown also complained that the transcripts sent to him in the mail from the lecture were
“raw” and not corrected. Id. The Court’s independent review of the Lecture Transcript
reveals that it is, indeed, difficult to follow. See Lecture Transcript.47
B.
Plaintiffs’ Objections to the Charter School Corporation’s Summary
Judgment Evidence
Before turning to the analysis portion of this Order, the Court will briefly address
Plaintiffs’ arguments regarding the admissibility of the Charter School Corporation’s
summary judgment evidence.
Plaintiffs argue that the Charter School Corporation’s
“summary judgment evidence is inadmissible to the extent [the Charter School Corporation]
relies on its affidavits to prove the contents of the Charter or its finances without attaching
the same as authenticated supporting evidence or certifications as required by law.”
Response at 24. As such, Plaintiffs argue that the Charter School Corporation’s affidavits
47
For the purposes of a complete record, the Court takes the opportunity to note that one relevant
distinction between American Sign Language and English is that deaf people proficient in ASL are not
necessarily proficient in English. Indeed, ASL “is a complete language with very little in common with English,
apart from some signs borrowed from English words via the American manual alphabet.” Mandel Report at 4.
Moreover, “the grammatical structure and word order of the two languages are quite different.” Id. Indeed,
Plaintiffs’ expert, Mark A. Mandel, Ph.D, concluded that DNS “cannot provide adequate communicative
accommodation for deaf persons. While it may suffice in a few marginal situations, such as office visits, it is
entirely inadequate to the major settings in this case, classes and groups.” Id. at 9.
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describing its financials, rather than the financial records themselves, would be inadmissible
at trial under Federal Rule of Evidence 1002. Id. Rule 1002 states that “[t]o prove the
content of a writing, recording, or photograph, the original writing, recording, or photograph
is required.” FED. R. EV. 1002. “The purpose of the Rule is to prevent inaccuracy and fraud
when attempting to prove the contents of a writing[.]” U.S. v. Holland, 223 F. App’x 891, 898
(11th Cir. 2007) (citation and internal quotation marks omitted). “However, [the Rule] only
applies when the contents of the writing or recording are sought to be proved.” Id. Here,
the Charter School Corporation’s representatives’ affidavits are not offered to prove the
contents of financial documents. Rather, the affidavits are based on personal knowledge
of the financial workings of the various entities at issue in this case.
“Under such
circumstances [Rule 1002] is not implicated at all.” Holland, 223 F. App’x at 898.
Plaintiffs also argue that the Charter School Corporation’s affidavits are “diametrically
opposed to statements made under oath at depositions, making it possible that the affidavits
are ‘sham affidavits’ that the Court should strike altogether.” Response at 24. First, the
Court notes that Plaintiffs do not specify what aspects of the affidavits Plaintiffs deem to be
a sham. Moreover, the relevant Background section of this Order fully sets forth the facts
as represented in both the depositions and affidavits. Indeed, the Court has conducted an
independent and thorough review of the record and has noted ambiguities and
contradictions where they appear.
As such, the Court finds the contested affidavits
admissible and will consider them in determining whether entry of summary judgment is
warranted.
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C.
Analysis
The Charter School Corporation seeks summary judgment pursuant to Rule 56 as
to Plaintiffs’ claims under Title II of the ADA (Count II) and the RA (Count V). Motion at 1-2.
1.
Count II: ADA
In Count II of the Complaint, Plaintiffs allege that the Charter School Corporation has
violated Title II of the ADA. See Complaint ¶¶ 346-355. In support of this claim, Plaintiffs
assert that they are qualified persons under the ADA and that “[d]efendant, The Villages
Charter School, Inc. . . . is a public entity in its official capacity as defined” under Title II of
the ADA. Id. ¶¶ 348-49. Plaintiffs further allege that the Charter School Corporation
“violated Title II of the ADA in numerous ways” by failing “to maintain policies and
procedures to ensure compliance with Title II of the ADA”; failing “to ensure that
communications with Plaintiffs were as effective as communications with non-disabled
individuals”; failing “to provide auxiliary aids and services, including qualified interpreters”;
excluding “Plaintiffs from programs, services and activities of the public entity”; denying
“Plaintiffs the benefit of these programs, services and activities due to their disability”; and
by implementing “discriminatory policies that disparately impacted Plaintiffs and intentionally
made it futile for Plaintiffs to request accommodations for the programs, services, and
activities.” Id. ¶ 350. As relief, Plaintiffs seek a declaratory judgment, permanent injunctive
relief, compensatory damages, and reasonable costs and attorneys fees. Id. ¶ 355.
Plaintiffs’ Title II ADA claim against the LLC is essentially identical to their Title II ADA
claim against the Districts, so the legal principles set forth with respect to the Districts’
Motion are equally applicable here. The parties do not dispute that Plaintiffs are qualified
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individuals with a disability.48 However, the parties dispute the remaining elements of
Plaintiffs’ Title II ADA claim. Specifically, the Charter School Corporation asserts that it is
not a public entity and that Plaintiffs have not been excluded from participation in or denied
the benefits of the services, programs, or activities of the Charter School Corporation.
Motion at 27-37.
In seeking summary judgment with respect to Count II, the Charter School
Corporation argues that it is undisputed that it is not a state or local government;
department, agency, special purpose district of a state or states or local government; or a
National Railroad Passenger Corporation; or an instrumentality of the State. Id. at 28. The
Charter School Corporation also argues that it is not an instrumentality of a state because
this phrase refers to a governmental unit, not a private entity. Id. According to the Charter
School Corporation, it is a private, not-for-profit corporation with a private board of directors
which operates both the Villages Charter Schools and the LLC. Id. at 29. Further, the
Charter School Corporation asserts that even though it contracts with Sumter County to
provide a charter school for the children of employees of The Villages of Lake Sumter, Inc.,
this relationship does not make the Charter School Corporation an “instrumentality of the
state or local government” because, according to the Charter School Corporation, “[t]he law
is clear that even if a private entity contracts with a government entity to perform
48
The Charter School Corporation asserts that Plaintiffs Thomas Hickey, Charles Martin, Robert
McDevitt, Kathleen McElwain, Francis Langlais, Herbert Pickering, Doris Schwarz, Andrew St. John, Diane St.
John, Evelyn Walker, Randall Walker, Mary Wilson, and Shirley Zimmerman have failed to set forth a prima
facie case under Title II of the ADA because there is no “futility exception” under Title II of the ADA and these
plaintiffs “testified that they never requested an accommodation because they believed their request would be
denied.” Motion at 38. As such, the Charter School Corporation asserts that these “allegedly futile plaintiffs”
should be dismissed. Id. at 39. However, in light of the Court’s analysis of the Title II ADA claim, it need not
resolve this issue regarding the futility exception under Title II of the ADA.
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governmental functions, it does not qualify as a ‘public entity’ for purposes of Title II liability.”
Id.
In opposition, Plaintiffs argue that the Charter School Corporation is a public entity,
and specifically that it is an “instrumentality of the state” subject to Title II of the ADA.
Response at 25-26.49 First, Plaintiffs assert that the LLC is not a separate legal entity from
the Charter School Corporation and that any manner in which the funds or operations of the
two are divided is without significance. Id. at 26. Additionally, Plaintiffs argue that case law
dictates that a private corporation can be a public entity under Title II. Id. at 26-28. Plaintiffs
also dispute the Charter School Corporation’s characterization that “it is a service provider
that is contracting with the state[.]” Id. at 28. Moreover, Plaintiffs contend that the Charter
School Corporation is a “major component unit” of Sumter County and is therefore an
“instrumentality” of Sumter County. Id. at 29-30. Last, Plaintiffs argue that Florida’s charter
school statute makes clear that charter schools are public schools, and, as such, the
Charter School Corporation is a public entity. Id. at 30-31.
The Court first turns to the Charter School Corporation’s argument that it is not an
“instrumentality of a State” under Title II. The Eleventh Circuit has addressed the issue of
whether a private entity that contracts with a government entity to provide a service is fairly
characterized as an instrumentality of the state under Title II. See Edison v. Douberly, 604
F.3d 1307 (11th Cir. 2010). In Edison, a prisoner sued several individuals under Title II in
their official capacities as employees of GEO Care Group, Inc. (“GEO”), a private prison
49
The Court will cite the Response using the pagination which Plaintiffs have applied to the document
rather than the pagination applied to the document by the Court’s CM/ECF system.
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management corporation operating a Florida state prison. 604 F.3d at 1308.50 GEO moved
for summary judgment on the grounds that it was not an instrumentality of a state under Title
II. Id. In determining that GEO was not a public entity subject to Title II, the Eleventh Circuit
cited with approval Green v. New York, 465 F.3d 65 (2d Cir. 2006), stating that “[e]ven
where such a private entity contracts with a government to perform a traditional and
essential government function, it remains a private company, not a public entity.” Edison,
604 F.3d at 1310. Indeed, the court borrowed further from Green in defining “the term
‘instrumentality of a State’” as “refer[ring] to governmental units or units created by them.”
Id. Applying this definition, the court concluded that “a private corporation is not a public
entity merely because it contracts with a public entity to provide some service” and that
“[s]ince GEO is such a private corporation, [it] is not a public entity subjecting it to liability
under Title II of the ADA and is, therefore, not a proper defendant in this action.” Id.
Under Florida law, “[c]harter schools are nonsectarian public schools that operate
under a performance contract (charter) with a public sponsor - either a district school board
or university.” Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220,
1228 (Fla. 2009) (citing FLA. STAT. § 1002.33(1), (7), (9)(a)). “An application for a new
charter school may be made by an individual, teachers, parents, a group of individuals, a
municipality, or a legal entity organized under the laws of Florida.”
FLA. STAT. §
1002.33(3)(a). Here, the record establishes that the Charter School Corporation is the “legal
50
The court noted that although GEO was not named as a defendant, because the plaintiff sued the
defendants in their “official capacities”, the lawsuit was really a suit against the alleged “public entity” GEO such
that the plaintiff’s theory was that GEO was a public entity under the ADA and therefore its employees had
official capacities. Edison, 604 F.3d at 1308 n.1.
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entity” which operates the Villages Charter Schools with Sumter County as the public
sponsor. The record further establishes that the Villages Charter Schools are public schools
as defined under Florida law, and, therefore, are public entities under Title II of the ADA.
The Charter School Corporation and the Villages Charter Schools, however, are not one in
the same. The Court recognizes that at many places in the record, the line between the
Villages Charter Schools and the Charter School Corporation is blurred. However, the
defendant in this action, the Charter School Corporation, is a private corporation, and a
separate legal entity from the Villages Charter Schools which it operates.51
Careful review of Florida’s charter school statute further confirms that the Charter
School Corporation and the Villages Charter Schools are considered separate legal entities
under the law. The statute requires that a charter school’s charter must have written into
it
[t]he term of the charter which shall provide for cancellation of the charter if
insufficient progress has been made in attaining the student achievement
objectives of the charter and if it is not likely that such objectives can be
achieved before expiration of the charter . . . In addition, to facilitate access
to long-term financial resources for charter school construction, charter
schools that are operated by a private, not-for-profit, s. 501(c)(3) status
corporation are eligible for up to a 15-year charter, subject to approval by the
district school board. Such long-term charters remain subject to annual review
51
Accordingly, the Court does not disagree with Plaintiffs’ contention that “[c]harter schools are public
entities that the State of Florida regulates as public schools.” Response at 30. However, the provisions of the
Florida Statutes which Plaintiffs cite apply to charter schools - not the entities which operate them. For example,
Florida Statutes § 218.39 requires charter schools to complete an annual financial audit of its accounts and
records. Additionally, the provisions relating to funding, facilities, and exemption from ad valorem taxes all relate
to charter schools - not the entities which operate them. See FLA. STAT. §§ 1002.33(17), 1002.33(18)(c),
196.1983. Similarly, the public records requirements cited by Plaintiffs apply to public records of government
agencies - not private corporations like the Charter School Corporation.
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and may be terminated during the term of the charter, but only during the term
of the charter pursuant to subsection (8).[52]
FLA. STAT. § 1002.33(7)(a)12. (footnote omitted). The statute further provides that
[w]hen a charter is not renewed or is terminated, the school shall be dissolved
under the provisions of law under which the school was organized, and any
unencumbered public funds, except for capital outlay funds and federal charter
school program grant funds, from the charter school shall revert to the
sponsor. . . . In the event a charter school is dissolved or is otherwise
terminated, all district school board property and improvements, furnishings,
and equipment purchased with public funds shall automatically revert to full
ownership by the district school board, subject to complete satisfaction of any
lawful liens or encumbrances.
FLA. STAT. § 1002.33(8)(e). These provisions reflect that a public sponsor may terminate
a charter, causing the charter school to be dissolved. However, these provisions do not
suggest that the legal existence of the operator of the charter school is in any way affected
by the termination of the charter or the dissolution of a charter school. Thus, should Sumter
County decide to terminate the Villages Charter Schools’ charters, this action would close
the elementary, middle, and high schools, but would have no effect on the Charter School
Corporation’s legal existence or on its right, should it choose to do so, to continue to operate
the LLC.
Further, the charter school statute includes a provision titled “CHARTER SCHOOL
REQUIREMENTS” which sets forth the minimum standards for charter schools, such as that
they be “nonsectarian”, that they admit eligible students as identified in the statute, that they
not charge tuition or registration fees, and that they not violate anti-discrimination provisions
52
Subsection (8) of the charter school statute provides the grounds on which a sponsor may choose
to not renew or terminate a charter and provides the procedure which a sponsor must follow in terminating the
charter. See FLA. STAT. § 1002.33(8).
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under Florida law. FLA. STAT. § 1002.33(9). These obligations are distinct within the statute
from the obligations and responsibilities imposed on the “governing body of the charter
school”, which is “responsible for”, among other things, “[e]nsuring that the charter school
has retained the services of a certified public accountant or auditor for the annual financial
audit, pursuant to s. 1002.345(2), who shall submit the report to the governing body[,]”
reviewing audit reports, and participating in governance training. Id. § 1002.33(9)(j). Thus,
the Florida Statutes contemplate that the charter school and its governing body are two
distinct legal entities with separate obligations and responsibilities. Indeed, several other
provisions of the charter school statute establish that under Florida law, the public charter
school is one legal entity, and the entity which creates and operates the charter school is
a separate legal entity. See, e.g., id. §§ 1002.33(9)(k), (12), (16).
With this understanding of Florida’s charter school statute, the Court finds Edison
controlling. The defendant in this action, the Charter School Corporation, is a private
corporation which has contracted (by charter) with a public entity, Sumter County, to provide
the service of operating public charter schools. It is not an “instrumentality of a State” under
Title II because it is not a governmental unit or created by a governmental unit. As such, the
Charter School Corporation is not a public entity subjecting it to liability under Title II and is,
therefore, not a proper defendant in this action.
In reaching the conclusion that the Charter School Corporation is not an
“instrumentality of a State”, the Court has considered Plaintiffs’ arguments to the contrary
and finds them to be unavailing. Plaintiffs maintain that Sumter County considers the
Charter School Corporation “not to be a contracted entity, but rather to be a ‘major
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component unit.’” Response at 29. Indeed, financial statements from Sumter County do not
treat the Charter School Corporation and the Villages Charter School as distinct legal
entities. An excerpt from a Sumter County audit for the fiscal year ending June 30, 2013,
provides:
Discretely Presented Component Unit. . . .
The Villages Charter School, Inc. (Charter School) is a not-for-profit
corporation organized pursuant to Chapter 617, Florida Statutes, the Florida
Not For Profit Corporation Act, and Section 1002.33, Florida Statutes. The
Charter School operates under a charter approved by its sponsor, the Sumter
County District School Board. The Charter School is considered to be a
component unit of the District because the District is financially accountable
for the Charter School as the District established the charter school by
approval of the charter, which is tantamount to the initial appointment of the
Charter School, and there is the potential for the Charter School to impose
specific financial burdens on the District. In addition, pursuant to the Florida
Constitution, the Charter School is a public school and the District is
responsible for the operation, control, and supervision of public schools within
the District. The District considers the Charter School to be a major
component unit based on its significance to the District.
See Sumter County Audit at 33 (Doc. 142-7; Sumter County Audit). Plaintiffs argue that
these statements indicate that the Charter School Corporation is an “instrumentality” of
Sumter County and is subject to Title II. Response at 30. Although the Sumter County Audit
loosely treats the Charter School Corporation and the Villages Charter Schools as if they are
one in the same, this does not alter the reality of their actual distinct identities under the law.
Under Florida’s charter school statute, a charter school’s sponsor, here Sumter County, has
many duties, which include monitoring and reviewing the charter school in its progress
towards the goals established in the charter and monitoring the revenues and expenditures
of the charter school. FLA. STAT. § 1002.33(5)(b). As such, financial data relating to the
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Villages Charter Schools is included in the Sumter County Audit. The sponsor does not
have these duties with respect to the operator of a charter school. Accordingly, the charter
school statute dictates that the Villages Charter Schools are major component units of
Sumter County, but the same cannot be said for the entirety of the Charter School
Corporation.
Plaintiffs also argue that Johnson v. Fla. High Sch. Activities Ass’n, Inc., 899 F. Supp.
579 (M.D. Fla. 1999), vacated on other grounds, Johnson v. Fla. High Sch. Activities Ass’n,
Inc., 102 F.3d 1172 (11th Cir. 1997), “stands for the proposition that a private nonprofit
corporation acting in the educational sphere can be deemed a public entity under Title II of
the ADA.” Response at 27. In Johnson, the Florida High School Activities Association, Inc.
(“FHSAA”), argued that it was not a public entity subject to Title II of the ADA. Id. at 583.
The court rejected this argument, stating that
The FHSAA is a non-profit corporation which regulates the interscholastic
activities of Florida high school students. As the regulatory arm for Florida high
schools, its actions have been deemed state actions. The Florida High Sch.
Activities Ass'n, Inc. v. Thomas, 434 So.2d 306, 308 (Fla.1983). The Thomas
court specifically noted that since the FHSAA has “exclusive authority and
responsibility for controlling all aspects of interscholastic activities in both
public and private high schools throughout Florida,” its actions constitute state
action. Id. Thus, since its actions are deemed state action, it follows that the
FHSAA is an “instrumentality of the state” and is therefore a “public entity.”
Id. at 583-84 (citation omitted). The other state athletic association cases cited by Plaintiffs
were decided on similar grounds. See, e.g., Steines ex rel. Steines v. Oh. High Sch. Athletic
Ass’n, 68 F. Supp. 3d 768, 775 (S.D. Ohio 2014), vacated on other grounds, C.S. v. Oh.
High Sch. Athletic Ass’n, Case No. 1:14-cv-525, 2015 WL 4575217 (S.D. Ohio July 29,
2015) (finding that the Ohio State Athletic Association is an instrumentality of the State and
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“public entity” under Title II of the ADA because the evidence demonstrated that “Ohio has
delegated a substantial amount of state authority to the OHSAA” in that “the great majority
of OHSAA’s members are public schools, it frequently uses public facilities, and it exercises
the ability to sanction public schools for violations of its rules”).
Relying on these cases, Plaintiffs argue that “it follows easily that charter schools are
instrumentalities of the state as well, since Florida law defines them as public schools . . .
and grants them authority and responsibility for controlling scholastic activities” and that “[i]t
does not follow that, just because Defendant is incorporated, it is private rather than a public
entity for purposes of the ADA.” Response at 28. However, the Court finds this line of
cases and argument unpersuasive for two reasons. First, the fact that the FHSAA was
deemed to be a public entity rested on the fact that the FHSAA was the “regulatory arm” for
the interscholastic activities of Florida high schools. Johnson, 899 F. Supp. at 583. Indeed,
the court explained that “the FHSAA ha[d] exclusive authority and responsibility for
controlling all aspects of interscholastic activities in both public and private high schools
throughout Florida[.]” Id. This fact rendered it a state actor, and thus, an instrumentality of
the state for purposes of Title II. Id. at 583-84. No comparable facts are present here with
regard to the Charter School Corporation which simply operates the charter schools under
the supervision of Sumter County as the state actor. Further, Plaintiffs’ argument, once
again, ignores the distinction between the Villages Charter Schools and the Charter School
Corporation. Florida law defines the Villages Charter Schools as public schools and grants
the Villages Charter Schools responsibility for scholastic activities, not the Charter School
Corporation.
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Additionally, perhaps in an attempt to distinguish Edison, Plaintiffs assert that
characterizing the Charter School Corporation as a “service provider that is contracting with
the state” mischaracterizes what a charter school is and does. Response at 28. Plaintiffs
cite Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 908 F. Supp. 2d 597
(M.D. Pa. 2012), a case in which the court was faced with deciding whether a charter school,
which, under Pennsylvania law, must be organized as a public, nonprofit corporation and is
therefore a “person” for purposes of bringing suit under 42 U.S.C. § 1983, was “‘like a
municipality, barred from bringing suit against its creator or charter-grantor.’” Pocono
Mountain, 908 F. Supp. 2d at 606; see also 24 PA. STAT. ANN. § 17-1703-A (“‘Charter school’
shall mean an independent public school established and operated under a charter from the
local board of school directors and in which students are enrolled or attend. A charter school
must be organized as a public, nonprofit corporation. Charters may not be granted to any
for-profit entity.”). Ultimately concluding that “the Charter School is sufficiently analogous
to a municipal corporation to preclude it from asserting its § 1983 claims against the District
in this case”, the court examined the relationship between charter schools and school
districts under Pennsylvania law. Id. at 609, 614. In doing so, the court observed that this
relationship “is not a contract that outsources public education, but [rather] the establishment
of schools to provide students with a public education.” Id. at 609 (internal quotation marks
and citation omitted) (alteration in original). The court further reasoned that charter schools
are “agencies under Pennsylvania’s Right-to-Know Act because they perform ‘an essential
governmental function’”, and are therefore “independent public schools created for the
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purpose of providing the essential governmental service of education in a constitutionally
mandated manner[.]” Id.
Plaintiffs contend that the Pocono Mountain court’s analogy between not-for-profits
that operate charter schools and municipal corporations “can easily be imported to the
present case.” Response at 28. This argument is unpersuasive. First, under Pennsylvania
law, charter schools must be organized as nonprofit corporations. There is no such
requirement under Florida law. Indeed, for all the reasons the Court has already discussed,
there appears to be a distinction under Florida law between a public charter school and the
nonprofit corporation which operates the charter school. Second, the rationale underlying
the court’s decision in Pocono Mountain stands contrary to the Eleventh Circuit’s rationale
in Edison. In Edison, the Eleventh Circuit cited with approval the Second Circuit’s statement
in Green in explaining the meaning of “instrumentality”:
Even where such a [parallel] private entity contracts with a government to
perform a traditional and essential government function, it remains a private
company, not a public entity. A private contractor does not, the court held,
become liable under Title II merely by contracting with the state to provide
government services, essential or otherwise.
Edison, 604 F.3d at 1310. Thus, the rational underlying Pocono Mountain, that an agency
of the state of Pennsylvania exists where the entity is created for the purpose of performing
an essential governmental service, is inconsistent with the Eleventh Circuit’s reasoning in
Edison that performing a traditional or essential governmental function does not transform
a private corporation into a public entity under Title II.
Further, Pocono Mountain and several other cases which Plaintiffs cite for the
proposition that charter schools are state actors for purposes of constitutional violations
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under § 1983 are of limited assistance to the extent Plaintiffs intend to rely on § 1983 cases
to establish that the Charter School Corporation is a public entity under Title II. See, e.g.,
ACLU of Minn. v. Tarek Ibn Ziyad Academy, Civil No. 09-138 (DWF/JJG), 2009 WL
2215072, at *9 (D. Minn. July 21, 2009) (charter school a state actor for purposes of § 1983
claim); Irene B. v. Philadelphia Academy Charter Sch., No. Civ.A. 02-1716, 2003 WL
24052009, at *11 (E.D. Pa. Jan. 29, 2003) (charter school subject to liability under § 1983).
Binding authority in this circuit dictates that an “instrumentality” of the government subject
to liability under Title II must be an entity that is either part of or created by the government
itself. Edison, 604 F.3d at 1309. Plaintiffs have cited no authority suggesting that, despite
Edison, it would be proper to look to § 1983 cases to expand the definition of an
instrumentality as used in the ADA. Accordingly, the Court declines to do so.
Because the Charter School Corporation is not a public entity under Title II of the
ADA, the Court declines to address whether Plaintiffs have been excluded from participation
in or denied the benefits of the services, programs, or activities of the Charter School
Corporation as defined under Title II of the ADA. As such, there are no genuine issues of
material fact with respect to Plaintiffs’ ADA claim, and summary judgment is due to entered
in favor of the Charter School Corporation as to Count II of the Complaint.
2.
Count V: Rehabilitation Act
In Count V of the Complaint, Plaintiffs assert a claim under the RA against the
Charter School Corporation. See Complaint ¶¶ 380-385. Plaintiffs allege that they are deaf
and hard of hearing persons and are thus qualified persons as required by the RA. Id. ¶
382. Plaintiffs further allege that “Defendant, [t]he Villages Charter School Inc. . . . is a
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College or post secondary institution principally engaged in the provision of education and
that receives federal funding and is required to comply with the mandates under Section 504
of the [RA].” Id. ¶ 383. Additionally, Plaintiffs allege that the Charter School Corporation’s
“programs, services, and activities including courses, lectures and other educational
offerings are covered programs or activities under the [RA].” Id. ¶ 384. Plaintiffs further
plead that the Charter School Corporation has violated section 504 of the RA based on the
allegations which form the basis of Plaintiffs’ Title II ADA claim. Id. ¶ 385. Plaintiffs seek
a declaratory judgment, permanent injunctive relief, compensatory damages, and
reasonable costs and attorneys’ fees. Id. at 57-58.
To establish a violation of section 504 of the RA, a plaintiff must meet four
requirements: “1) she is a ‘handicapped individual,’ 2) she is ‘otherwise qualified’ for
participation in the program, 3) the program receives ‘federal financial assistance,’ and 4)
she was ‘denied the benefits of’ or ‘subject to discrimination’ under the program.”
Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1380 (3d Cir. 1991); see Doherty v. S. Coll.
of Optometry, 862 F.2d 570, 573 (6th Cir. 1988). Additionally, “[t]o recover compensatory
damages under [section] 504, Plaintiff[s] must demonstrate that the discrimination was
intentional.” Wendel v. Fla. Dept. of Highway Safety & Motor Vehicles, 80 F. Supp. 3d 1297,
1302 (M.D. Fla. 2015); see also Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173,
1191 (11th Cir. 2007) (stating that “victims of intentional discrimination may recover
compensatory damages” while “victims of unintentional discrimination may be limited to
prospective relief preventing future violations”).
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The parties do not appear to dispute the first three elements of Plaintiffs’ RA claim.
Indeed, in the Motion, the Charter School Corporation appears to seek summary judgment
based on the fourth element alone. See Motion at 30. Specifically, the Charter School
Corporation appears to center its entire argument on the assertion that providing sign
language interpreters is an undue hardship for the LLC. Id. at 31-37. However, at the Final
Pretrial Conference, the Court expressed some concern over whether the Charter School
Corporation - rather than the Villages Charter Schools - is a recipient of federal financial
assistance.53 Nevertheless, as stated by the Court at the Final Pretrial Conference, because
the Charter School Corporation concedes that it is a recipient of federal funds and does not
move for summary judgment on this basis, the Court will assume that it is, in fact, the
recipient of federal funds.54 As such, the Court will turn to the fourth element of Plaintiffs’
RA claim, whether Plaintiffs were denied the benefits of or subject to discrimination in the
Charter School Corporation’s LLC programs.
53
For example, the deposition testimony of Ritch and McDaniel paint a puzzling picture regarding the
flow of federal funds to these entities. See Ritch Dep. at 26; McDaniel Dep. at 29-31, 34-35. Additionally,
Florida’s charter school statute seems to indicate that charter schools - not their operators - receive federal
funds. See FLA. STAT. §§ 1002.33(17)(c)-(d), 1002.33(20)(a)1 (providing that “all charter schools shall receive
all federal funding for which the school is otherwise eligible, including Title I funding, not later than 5 months
after the charter school first opens and within 5 months after any subsequent expansion of enrollment” and that
“any funds due to the charter school under the federal lunch program be paid to the charter school as soon as
the charter school begins serving food under the federal lunch program”).
54
Relatedly, Plaintiffs contend that the Charter School Corporation asserts that “while it receives federal
funds, it is not subject to the [RA] since it does not use any federal funds for the [LLC].” Response at 38.
However, the Charter School Corporation does not raise this argument in the Motion. Moreover, the Court is
in agreement with Plaintiffs that “[a]n entire private corporation will . . . be covered under [the RA] if financial
assistance is granted to the corporation ‘as a whole’ or if it is principally engaged in the business of providing
education, health care, housing social services, or parks and recreation.” Squire v. United Airlines, Inc., 973
F. Supp. 1004, 1008 (D. Colo. 1997) (citing 29 U.S.C. § 794(b)(3)(A)(I) and (ii)); Runnion ex. rel. Runnion v. Girl
Scouts of Greater Chicago, 786 F.3d 510, 517 (7th Cir. 2015) (same). Thus, the Court does not dispute that
all of the Charter School Corporation’s programs, including the LLC, are covered under the RA.
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With respect to the fourth element of Plaintiffs’ RA claim, the Charter School
Corporation asserts that Plaintiffs “have never been excluded from participation in or denied
the benefits of the services, programs, or activities of The Villages Charter School[,] Inc.[,]
or any of its programs including the [LLC].” Motion at 30. The Charter School Corporation
explains that the LLC “has bent over backwards to find a financially feasible accommodation
for the plaintiffs including purchasing and being trained on the Dragon Speak Naturally [sic]
talk to text program, providing transcripts for any courses or lectures, and allowing the
plaintiffs to bring their own interpreter with them to attend any course or lecture free of
charge.” Id. Further, the Charter School Corporation asserts that “[o]n one occasion, the
[LLC] even offered to conduct a one-on-one class for a plaintiff.” Id. Despite these
assertions, the Charter School Corporation does not appear to seek summary judgment on
the basis that these accommodations were sufficient to satisfy its obligations under the RA.55
Rather, the Charter School Corporation appears to argue, as the sole basis for its motion
for summary judgment, that the provision of sign language interpreters would constitute an
undue hardship under the RA.
Id. at 31-37.
Indeed, because the Charter School
Corporation offers no substantive arguments to support that it has offered a reasonable
accommodation under the RA, the Court will limit its analysis to whether the provision of sign
language interpreters constitutes an undue hardship. In opposition, Plaintiffs argue that the
55
However, to the extent the Charter School Corporation contends that DNS is a reasonable
accommodation sufficient to satisfy its obligation under the RA to furnish auxiliary aids, the Court determines
that genuine issues of material fact preclude summary judgment on this basis. There is evidence in the record
that four Plaintiffs have tried the DNS program with poor results. Additionally, Plaintiffs’ expert’s report
concludes that DNS is not an effective accommodation. Accordingly, to the extent the Charter School
Corporation seeks summary judgment on the basis that DNS is a reasonable accommodation, the Court will
deny the Motion.
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Charter School Corporation has violated the RA because it has not provided effective
auxiliary aids in the form of sign language interpreters. Response at 38-40. Further,
Plaintiffs assert that summary judgment is inappropriate because whether the provision of
sign language interpreters is an undue hardship constitutes a disputed question of fact. Id.
at 40-45.
The crux of the parties’ dispute with respect to Plaintiffs’ RA claim is that Plaintiffs
contend that sign language interpreters are a required reasonable accommodation, but the
Charter School Corporation maintains that sign language interpreters are an undue hardship
and are, therefore, not required. Preliminarily, the Court observes that “the reasonableaccommodation principle (that a disabled person is entitled to participate in a program,
notwithstanding lack of qualification, if a reasonable accommodation would qualify him) does
not appear in [section] 504.” Onishea v. Hopper, 171 F.3d 1289, 1301 (11th Cir. 1999)
(citing 29 U.S.C. §§ 706, 694). Instead, “[t]he principle appears . . . in agency regulations
promulgated under the statute’s authority.” Id. Moreover, “[t]he applicability of these
regulations as a general rule follows federal funding from an agency.” Id. Indeed, in
Onishea, the Eleventh Circuit observed that
[u]nfortunately, the district court denied the plaintiffs discovery of the source
of the Department of Corrections’ federal funding, and the plaintiffs did not
pursue questioning on this subject at trial. Thus, with one exception, we do not
know what regulations apply to the Department of Corrections. And this
matters: Different agency regulations lay out the contours of the reasonableaccommodation principle differently. For instance, Department of Justice
regulations require no accommodation at all in nonemployment programs . .
., while Department of Labor regulations require reasonable accommodation
in employment training programs[.]
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Id. Ultimately, however, because the parties briefed the issue, and “[r]ather than disturb
what ha[d] become the parties’ settled expectations,” the Eleventh Circuit in Onishea
“elect[ed] to apply some sort of least-common-denominator reasonable accommodation
principle” while “look[ing] to some regulations for guidance”, yet acknowledging that the
court’s “interpretation . . . would not trump any agency regulation that interprets [section] 504
differently.” Id. at 1302.
Consistent with the teaching of Onishea, the proper starting point for the Court’s
analysis is to identify which federal agencies distribute the financial assistance at issue and
which regulations apply to determine what accommodations are required. Id. at 1301.
However, the parties did not brief the issue in this manner. Motion at 31-37; Response at
37-45. Accordingly, at the Final Pretrial Conference, the Court directed the parties to file
supplemental briefing identifying which agencies are providing the federal funding and what
accommodation obligations those agencies impose. See Clerk’s Minutes; September 4,
2015 Order (Doc. 178; September 4, 2015 Order).
Additionally, because Plaintiffs’
Complaint and Response refer to the Charter School Corporation as a “postsecondary
institution,” see Complaint ¶ 383; Response at 38, at the Final Pretrial Conference, the Court
raised the issue of whether the Charter School Corporation is, in fact, a postsecondary
institution. Accordingly, the Court also ordered the parties to brief whether the Charter
School Corporation, for purposes of the agency regulations, is a postsecondary institution
or a corporation principally engaged in the business of providing education. See Clerk’s
Minutes; September 4, 2015 Order.
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i.
The applicable agency regulations
In its supplement brief, the Charter School Corporation identifies the Department of
Education (“DOE”) and Department of Agriculture (“DOA”) as the agencies which provide
its federal funding. Defendant’s Supplement at 2.56 The Charter School Corporation further
argues that it is not a postsecondary institution and cites several DOE and DOA regulations
which it asserts apply to the LLC’s “adult recreational classes.” Id. at 5-7, 9-13. In their
supplemental brief, Plaintiffs agree that the Charter School Corporation is subject to the
regulations promulgated by the DOE and DOA by virtue of its receipt of funds but disagree
with the Charter School Corporation regarding which regulations are applicable. See
generally Plaintiffs’ Supplement.
The DOE and DOA have promulgated regulations which govern “nondiscrimination
on the basis of handicap in programs or activities receiving federal financial assistance.”
See 34 C.F.R. § 104; 7 C.F.R. § 15b. These regulations are divided into subparts which
cover various topics. Under both the DOE and DOA regulations, Subpart A contains
“General Provisions”, Subpart B contains regulations relating to “Employment Practices”,
Subpart C contains regulations relating to “Accessability”, and Subpart E contains provisions
56
The Charter School Corporation’s Independent Audit Records for 2012-2014 contain a document
titled, “Schedule of Expenditures of Federal Awards for the Year Ended June 30, 2012, The Villages Charter
School, The Villages, Florida.” Independent Audit Records 2012-2014 at 6. This document shows that for the
year ending June 30, 2012, the U.S. Department of Education was a “grantor” for funds that “[p]assed thru the
Sumter County School Board.” Id. These funds are labeled: 1) “Career and Technical Education - Basic Grants
to States”; 2) “Special Education - Grants to States, Recovery Act”; 3) “Race to the Top Fund Incentive Grants,
Recovery Act”. Id. The document also shows the “U.S. Department of Agriculture” as the grantor for funds
which “[p]assed thru the Florida Department of Education.” Id. These funds are labeled “National School Lunch
Program” and “School Breakfast Program” under the heading, “Child Nutrition Cluster”. Similar documents for
the fiscal years ending June 30, 2010, June 30, 2011, and June 30, 2014, show the Department of Education
and Department of Agriculture as grantors with respect to similar, but not identical, programs. See Independent
Audit Records 2008-2012 at 82, 120; Independent Audit Records 2012-2014 at 76.
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relating to “Postsecondary Education.” See 34 C.F.R. § 104; 7 C.F.R. § 15b. The DOE’s
Subpart D contains provisions relating to “Preschool, Elementary, and Secondary
Education”, while the DOA’s Subpart D contains provisions relating to “Preschool,
Elementary, Secondary, Adult, and Extension Education.” 34 C.F.R. § 104.31; 7 C.F.R. §
15b.20. The DOE’s Subpart F contains provisions relating to “Health, Welfare, and Social
Services”, while the DOA’s Subpart F contains provisions relating to “Other Aid, Benefits,
or Services.” 34 C.F.R. § 104.51; 7 C.F.R. § 15b.36. The Charter School Corporation
argues that Subparts B and C of the DOE and DOA regulations do not apply, see
Defendant’s Supplement at 6, 7, and Plaintiffs do not address these Subparts in their
supplemental brief, see generally Plaintiffs’ Supplement. Because employment practices
and accessability to facilities are not at issue in this case, the Court need not address
Subparts B and C.
Accordingly, the Court will turn its discussion to the remaining
regulations.
The Charter School Corporation and Plaintiffs agree that Subparts A, the “General
Provisions” of both the DOE and DOA regulations, are applicable to the Charter School
Corporation. Relevant to the instant action, the DOE regulations require that
[a] recipient, in providing any aid, benefit, or service, may not, directly or
through contractual, licensing, or other arrangements, on the basis of
handicap . . . [p]rovide a qualified handicapped person with an aid, benefit, or
service that is not as effective as that provided to others[.]
34 C.F.R. § 104.4(b)(1)(iii); see also 7 C.F.R. § 15b.4( b)(1)(iii).57 The DOE and DOA
regulations also require that
57
The DOA regulation differs in a slight but non-substantive manner.
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aids, benefits, and services, to be equally effective, are not required to
produce the identical result or level of achievement for handicapped and
nonhandicapped persons, but must afford handicapped person equal
opportunity to obtain the same result, to gain the same benefit, or to reach the
same level of achievement, in the most integrated setting appropriate to the
person’s needs.
34 C.F.R. § 104.4(b)(2); 7 C.F.R. § 15b.4(b)(2). Additionally, the DOA regulations provide,
“Recipients shall take appropriate steps to ensure that communications with their applicants,
employees, and beneficiaries are available to persons with impaired vision and hearing.”
7 C.F.R. § 15b.4(d).
The Charter School Corporation and Plaintiffs disagree on the applicability of
Subparts D and E.58 The Charter School Corporation maintains that these Subparts are not
applicable. See generally Defendant’s Supplement. However, Plaintiffs argue that the
Charter School Corporation must comply with Subpart E since LLC courses are
“postsecondary courses” and also that at the very least, Subpart D “provide[s] guidance as
to how handicapped individuals may be accommodated under the [RA.]” Plaintiffs’
Supplement at 11-12. Plaintiffs further assert that “[w]hether Defendant must comply with
Subparts D or E, the substantive action it must take to do so will be the same.” Id. at 12.
58
Subpart D of the DOE regulations “applies to preschool, elementary, secondary, and adult education
programs or activities that receive Federal financial assistance and to recipients that operate, or that receive
Federal financial assistance for the operation of, such programs or activities.” 34 C.F.R. § 104.31. Similarly,
Subpart D of the DOA regulations “applies to public and private schools, elementary, secondary, adult, and
extension education programs or activities that receive Federal financial assistance provided by the Department
of Agriculture after that effective date of this part and to recipients that operate, or that receive Federal financial
assistance for the operation of, such programs or activities.” 7 C.F.R. § 15b.20.
Subpart E of the DOE regulations “applies to postsecondary education programs or activities, including
postsecondary vocational education programs or activities, that receive Federal financial assistance and to
recipients that operate, or that receive Federal financial assistance for the operation of, such programs or
activities.” 34 C.F.R. § 104.41. Subpart E of the DOA regulations “applies to public and private postsecondary
education programs or activities, including postsecondary vocational education programs and activities, that
receive Federal financial assistance provided by the Department of Agriculture after the effective date of this
part.” 7 C.F.R. § 15b.29.
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Ultimately, however, the Court need not determine whether Subparts D or E apply to the
Charter School Corporation because Subpart F of the DOA regulations,59 which the Charter
School Corporation labels the “catch-all” Subpart and which “applies to aid, benefits, or
services, other than those covered by Subparts D and E”, contains an auxiliary aids
regulation which imposes an accommodation obligation no less demanding than the auxiliary
aids provisions in Subparts D and E:
(a) A recipient to which this subpart applies that employs fifteen or more
persons shall provide appropriate auxiliary aids to persons with impaired
sensory, manual, or speaking skills, where necessary to afford such persons
an equal opportunity to benefit from the service in question.
(b) The Secretary may require recipients with fewer than fifteen employees to
provide auxiliary aids where the provision of aids would not significantly impair
the ability of the recipient to provide its benefits or services.
(c) For the purpose of this section, auxiliary aids may include Brailled and
taped material, interpreters, and other aids for persons with impaired hearing
or vision.
59
Subpart F of the DOE regulations applies to “Health, Welfare, and Social Services”, which by its
terms is not applicable to the Charter School Corporation or the LLC courses. See 34 C.F.R. § 104.51.
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7 C.F.R. § 15b.37.60 While Plaintiffs do not reference Subpart F or this particular auxiliary
aid regulation in their supplemental brief, see generally Plaintiffs’ Supplement, the Charter
School Corporation asserts that subsections (b) and (c) of this regulation are applicable in
this case, see Defendant’s Supplement at 5. The distinction between subsections (a) and
(b) hinges on whether the “recipient” employs fifteen or more persons. See 7 C.F.R. §§
15b.37(a), 15b.37(b). Although the Charter School Corporation notes that the LLC “has a
staff of only four full-time employees”, see Defendant’s Supplement at 5 n.11 (citing
McDaniel Aff. ¶ 23), the “recipient” of federal funds in this case is the Charter School
Corporation. The Charter School Corporation does not cite to any portion of the record
indicating how many people the Charter School Corporation employs, and in its independent
review, the Court has not found this information. Thus, the Charter School Corporation has
60
Compare the auxiliary aids provision found in Subpart F of the DOA regulation with Subparts D of
the DOE and DOA regulations which provide, “A recipient shall place a handicapped person in the regular
education environment operated by the recipient unless it is demonstrated by the recipient that the education
of the person in the regular environment with the use of supplementary aids and services cannot be achieved
satisfactorily.” 34 C.F.R. § 104.34(a); 7 C.F.R. § 15b.23(a).
Also compare with Subparts E of the DOE and DOA regulations which provides:
(d) Auxiliary aids.
(1) A recipient to which this subpart applies shall take such steps as are
necessary to ensure that no handicapped student is denied the benefits of,
excluded from participation in, or otherwise subjected to discrimination
because of the absence of educational auxiliary aids for students with
impaired sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts, interpreters or other effective
methods of making orally delivered materials available to students with
hearing impairments, readers in libraries for students with visual impairments,
classroom equipment adapted for use by students with manual impairments,
and other similar services and actions. Recipients need not provide
attendants, individually prescribed devices, readers for personal use or study,
or other devices or services of a personal nature.
34 C.F.R. § 104.44(d); 7 C.F.R. § 15b.32(d).
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not born its burden of demonstrating the inapplicability of the more exacting standard under
subsection (a).61
As such, the Court concludes that the applicable accommodation
obligation is found in subsection (a), which the Charter School Corporation may satisfy by
providing interpreters or “other aids.” 7 C.F.R. §§ 15b.37(a), 15b.37(c).
Whether an entity subject to the RA has provided appropriate auxiliary aids is
necessarily an inherently fact-intensive question. See, e.g., Martin v. Halifax Healthcare
Sys., Inc., No. 14-12771, 2015 WL 4591796, at *7 (11th Cir. July 31, 2015) (noting that “[i]n
accordance with the” applicable regulations, the Eleventh Circuit “has recognized that the
question whether a hospital has provided appropriate auxiliary aids to a deaf patient is
generally a ‘fact-intensive’ inquiry that depends on context, especially the nature,
significance, and complexity of the involved treatment”); Chisolm v. McManimon, 275 F.3d
315, 331 (3d Cir. 2001) (reversing the district court’s grant of summary judgment in finding
that “it is up to the trier of fact to determine whether the [state court] provided a sufficient
auxiliary aid and/or service when it rescheduled [the inmate-plaintiff’s] hearing and ordered
him remanded into custody for a further six days until an ASL interpreter could be present”);
Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (reversing the district court’s grant
of summary judgment in favor of the inmate-plaintiff because the defendants were entitled
to have a trier of fact consider their evidence that the plaintiff’s “request for an interpreter
created safety and security issues, as well as placed a financial burden on the prison”).
61
Additionally, because the Charter School Corporation operates the Villages Charter Schools, which
teaches “nearly 3,200 students”, McDaniel Aff. ¶ 7, and because the Charter School Corporation’s audit record
show expenditures of over $9,000,000 for “Instruction”, see, e.g., Independent Audit Records 2008-2012 at 102,
the record indicates that the Charter School Corporation almost certainly employs well over 15 people.
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However, the Charter School Corporation does not appear to dispute its duty to provide
auxiliary aids. Motion at 31. Instead, the Charter School Corporation maintains that
providing sign language interpreters constitutes an undue hardship. Id.
The Court recognizes that the applicable regulations in the instant case do not
specifically provide for an undue hardship defense. Cf. 34 C.F.R. § 104.12(c) (listing factors
to be considered in determining “whether an accommodation would impose an undue
hardship on the operation of a recipient’s program or activity” under the DOE’s regulations
regarding “Employment Practices” under Subpart B). However, in U.S. v. Bd. of Trustees
for Univ. of Ala., 908 F.2d 740 (11th Cir. 1990), the Eleventh Circuit noted that in reaching
the conclusion that the DOE’s auxiliary aids regulation applicable to postsecondary
education is based on a permissible construction of the RA, it “considered the possibility that
as applied to [the defendant], the auxiliary aids regulation might impose an ‘undue financial
burden’” even though this regulation does not expressly provide for an undue hardship
defense. 908 F.2d at 749 n.5; see 34 C.F.R. § 104.44(d). Accordingly, the Court will accept
that as applied to the instant case, “[r]easonable accommodations are mandatory only to the
point that they impose ‘undue hardship’ on the federal funds recipient.” Onishea, 171 F.3d
at 1303 (citing 29 C.F.R. § 32.362). Indeed, the Eleventh Circuit has indicated that
[u]nder the [RA], cost is relevant to the federal fund recipient’s burden when
it, like any other burden, reaches the point of “undue hardship.” This is a
consistent agency interpretation of the statute: Many (if not all) regulations
promulgated under the [RA] prescribe “undue hardship” as the standard for
measuring when the federal funds recipient’s burden is too much.
62
29 C.F.R. § 32.3 provides definitions for terms used in the Department of Labor’s regulations relating
to activities receiving federal financial assistance under the RA.
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Id. (citing the regulations of the Department of Agriculture, Department of Justice,
Department of Education, and Department of Health and Human Services).63 Moreover,
Eleventh Circuit precedent reflects that “a hardship becomes undue long before it effects a
‘fundamental alteration’ in employment conditions or reallocation of program resources.” Id.
at 1304. While, “[r]equired accommodations . . . have demanded little from federal fund
recipients in either money or other resources”, “regulations . . . and precedent do not fix a
bright-line rule” between the two extremes. Id. “[B]ut they do make clear that a financial
burden may become too much when it reaches the point of ‘undue hardship.’” Id.64
ii.
Whether the provision of sign language interpreters is an
undue hardship
Turning to the facts at hand, the Court’s task is to determine whether a reasonable
juror could find that the provision of sign language interpreters in LLC programs would cause
the Charter School Corporation an undue hardship. The Charter School Corporation argues
that “[p]roviding unlimited American sign language interpreters as requested by the plaintiffs
would simply put the [LLC] out of business.” Motion at 32. In support of this assertion, the
Charter School Corporation has provided evidence that the rates for sign language
interpreters are approximately $50.00 per hour with a two hour minimum. See Citrus
63
Notably, however, the regulations the Onishea court cites which are promulgated by Department of
Agriculture and Department of Education relate to reasonable accommodations in reference to “employment
practices[.]” See 7 C.F.R. Sec. 15b.13(c); 34 C.F.R. Sec. 104.12(c).
64
In Onishea, for example, the wardens of the two prisons at issue estimated that it would take about
70 additional officers to integrate the HIV-positive prisoner plaintiffs into the prison programs safely, and that
this would cost $1,713,810 for the first year. Onishea, 171 F.3d at 1304. The budget for the entire Department
of Corrections was $163,000,000, and at the time of trial, this level of funding left the first prison 35 correctional
officers short and the second prison 89 correctional officers short. Id. As such, the Eleventh Circuit found that
it “could conclude that in these circumstances spending an additional $1.7 million would cause undue hardship.”
Id.
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Hearing Impaired Program Services Correspondence at 3 (Doc. 133-1; Citrus
Correspondence). Based on this information, McDaniel conducted a cost analysis which,
in brief, found that for a six-week LLC course that meets twice a week, the cost for an
interpreter would be $1,200.00. See McDaniel Aff. ¶ 19. If the class was filled to capacity
at 12 students, the LLC would incur a loss of $784.20 after the students paid course fees
totaling $1,029.0065 and the LLC paid $37.20 in rent66 and $576.00 in instructor fees.67 See
id. ¶¶ 19, 20. McDaniel also determined that if the LLC course was filled to half capacity at
six students, the LLC would incur a loss of $989.60, assuming two students paid the patron
rate of $82.00, three students paid the resident rate of $87.00, and one student paid the
general public rate of $92.00. Id. The Charter School Corporation argues that based on
these calculations, “[a]t a minimum, the financial loss would actually be thirty two (32) times
the loss described above per semester assuming that each plaintiff took only one class per
semester and no other deaf individuals requested American sign language interpreters.”
Motion at 32. Thus, the Charter School Corporation asserts that this would amount to a loss
of $63,334.40 per year for courses filled to capacity at 12 students and $50,188.80 per year
for courses half filled at six students. Id. at 32-33. The Charter School Corporation further
notes that these estimates are “conservative” as these figures do not include requests for
interpreters for the speaker series which are offered 1-2 times per month, requests by
65
This analysis assumed that four students would pay the “patron rate” of $82.00, seven students
would pay the “resident rate” of $87.00, and one student would pay the “general public rate” of $92.00. See
Motion at 32; McDaniel Aff. ¶ 19.
66
The rent is calculated at $3.10 per student. McDaniel Aff. ¶ 19.
67
The instructor fee is set at $48.00 per student. McDaniel Aff. ¶ 19.
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Plaintiffs who may take more than one course per semester, or requests by other deaf
individuals who are not named as plaintiffs in this lawsuit. Id. at 33. The Charter School
Corporation argues that “[s]uch a financial loss would without a doubt put the [LLC] out of
business.” Id. Indeed, John Wise, Vice President and CFO of the Holding Company, and
Gary Lester, Vice President of Communication Relations for the Holding Company, have
both sworn in their affidavits that if the LLC “were required to provide sign language
interpreters for every class and lecture which is offered, it could no longer be self sustaining
and therefore it would shut down.” Wise Aff. ¶ 9; see also Lester Aff. ¶ 9.
In response, Plaintiffs argue that providing sign language interpreters is not an undue
financial burden, and that, at the very least, it is a disputed question of fact. Plaintiffs first
assert that the Charter School Corporation’s claims regarding the undue financial burden
of sign language interpreters are not supported with any “legitimate research” and, “[e]ven
so, applicable DOJ regulations and case law firmly reject comparing the cost of the
accommodation against the revenues for that activity, and rather direct that the cost be
considered in light of the overall financial position of the covered entity.” Response at 8.
However, Plaintiffs do not explain what they mean by the Charter School Corporation’s
claims lacking “legitimate research.” The Charter School Corporation’s burden is to produce
sufficient evidence that a reasonable juror could conclude that providing sign language
interpreters would constitute an undue hardship. See Willis v. Conopco, Inc., 108 F.3d 282,
286 & n.2 (11th Cir. 1997) (stating that “establishing that a reasonable accommodation
exists is a part of an ADA plaintiff’s case, whereas undue hardship is an affirmative defense
to be pled and proven by an ADA defendant” and citing a case interpreting RA regulations
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as further explanation). Plaintiffs have failed to cite any applicable authority which requires
something more. Additionally, the DOJ regulation which Plaintiffs cite applies to ADA
claims, not the RA. See 28 C.F.R. § 35.164.
Plaintiffs further assert that the Charter School Corporation had other flexible options
which it refused to explore, including
(i) cost spreading over the Defendant’s 500 courses or over 22,000
enrollments at a nominal amount; (ii) charging a small one time
registration/user fee over all of its enrollments; (iii) applying for federal, state
and private grants[;] (iv) reducing expenses[;] (v) utilizing tax breaks given for
providing accommodations[;] or (vi) seeking contributions from alternate
sources of funding.
Response at 9. Additionally, Plaintiffs maintain that the Charter School Corporation “treats
the course fee as constant for purposes of its breakeven analysis, essentially conceding that
it has not considered raising the course fee.” Id. at 44. However, the Charter School
Corporation argues that raising rates would not be a viable solution because when rates are
raised, enrollment drops significantly. Motion at 34. Indeed, the Director of the LLC,
Michelle Shideler, testified that the LLC has “considered raising the cost of courses to cover
[their] expenses - - [their] yearly expenses” but that “[they] try not to raise course fees ever.”
Shideler Dep. at 19. Shideler noted that at some point in the past, the LLC raised course
fees by one dollar and saw a drop in enrollment, but also acknowledged that since that time,
the LLC was able to recover from that decrease in enrollment and has since seen an
increase in enrollment. Id. at 125-26.68 Additionally, in response to Plaintiffs’ argument that
68
See also Shideler Aff. ¶ 12 (“Raising class rates to cover the cost of sign language interpreters is not
a solution because it has been our past experience that when there is an increase in class rates for our senior
population, the enrollment drops significantly.”).
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the Charter School Corporation has not considered other “flexible options” stands the
Charter School Corporation’s position that the LLC is financially self-sustaining through
course fees. Whether other financial options exist to finance sign language interpreters is
precisely the fact-intensive question best addressed by a jury.69 As such, the Court will deny
the Charter School Corporation’s motion for summary judgment as to Plaintiffs’ failure to
accommodate claim under the RA because a genuine dispute of material fact exists as to
whether the provision of sign language interpreters would impose an undue hardship on the
Charter School Corporation.70
Although the Court finds that summary judgment is due to be denied as to Plaintiffs’
RA claim with regard to the LLC, the Court must consider Plaintiffs’ argument that the
Charter School Corporation cannot establish undue hardship because it has ample financial
resources in light of the Holding Company paying every deficit it incurs. Response at 10,
69
Similarly, Plaintiffs’ argument that the Charter School Corporation “analyzes the breakeven point on
a class-by-class basis for one particular class offered at the [LLC,]” and that the Charter School Corporation
“cannot thereby prove that the same analysis would hold for each class, and certainly not the aggregate”, see
Response at 44, involves factual disputes best suited for the trier-of-fact. Additionally, for these same reasons,
the Charter School Corporation’s assertion that providing sign language interpreters would constitute an undue
administrative burden, Motion at 35-36, as well as Plaintiffs’ contentions in opposition, Response at 13, 43, are
factual disputes best-suited for a trier-of fact.
70
The Court briefly addresses the Charter School Corporation’s argument that plaintiffs “have taken
an ‘all or nothing stand’ demanding unlimited American sign language interpreters for any and all courses which
they could possibly want to take at any given time.” Motion at 33. According to the Charter School Corporation,
“[t]his ‘all or nothing’ demand has the potential to cause even exponentially larger financial losses to the [LLC].”
Id. The Charter School Corporation calculated that since the LLC offers approximately 450 courses per year,
the interpreter fees per semester could be as much as $540,000 per semester ($1,200.00 x 450 classes) and
$1,080,000 ($540,000.00 x 2 semesters) per year. Id. Plaintiffs respond in opposition by stating that the
Charter School Corporation has “mischaracterize[d]” Plaintiffs’ request: Plaintiffs assert that “at no point have
[they] requested ‘unlimited sign language interpreters at any given day’ nor have [they] maintained that this is
the only reasonable accommodation.” Response at 45. However, “[i]t [is] incumbent on [Plaintiffs], not
[D]efendant[ ] or the [C]ourt, to identify where they want[ ] partial relief, if full relief [is] not possible.” Onishea,
171 F.3d at 1305. Nowhere in the record have Plaintiffs specified any number of interpreters they would find
reasonable. Additionally, Plaintiffs have not specified any reasonable accommodation besides an interpreter
which they would find suitable. Moreover, these issues are grounded in factual disputes best-suited for the jury.
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43-44.
Specifically, Plaintiffs assert that “[u]nder these circumstances, to say that
accommodating Plaintiffs’ disability would somehow put [the Charter School Corporation]
over the financial edge and thus constitute a fundamental alteration is simply not credible,
is not supported by competent evidence, and is at the very least a disputed issue of fact.”
Id. at 44.71 The Charter School Corporation maintains that the Holding Company provides
these advances “largely to address a timing issue with respect to the receipt of funds from
Sumter County and to aid in the provision of a K-12th grade education.” Motion at 34.
Further, the evidence reflects that the LLC is “self sustaining” and that the advances from
the Holding Company “are not made to supplement its operations.” Id. Indeed, nothing in
the record contradicts the evidence showing that the LLC is a financially independent
program from the Villages Charter Schools and that the LLC operates solely off of course
fees. Additionally, nothing in the record establishes that the funds provided by the Holding
Company are used for anything but the operations of the Villages Charter Schools.72 Thus,
the evidence in the record regarding the Holding Company and its financial support of the
Villages Charter Schools is irrelevant to the question of whether the provision of sign
language interpreters for LLC classes would constitute an undue hardship.
71
Plaintiffs further argue that “[t]he [LLC] is operating at a deficit that has always been cured by the
parent organization.” Response at 10. For this proposition, Plaintiffs cite the deposition of Gina Ritch at pages
53 and 54. However, it seems that Ritch misspoke when she stated that the LLC is running at a deficit because
she almost immediately thereafter testified that The Villages Charter School, Inc., has its deficit cured by the
Holding Company every year. Ritch Dep. at 53-54.
72
In the Motion, the Charter School Corporation also argues that the Holding Company “does not have
an ongoing commitment to fund deficits of” the Charter School Corporation and that indeed, the Holding
Company “has no contractual or legal obligation of any kind to provide advances” to the Charter School
Corporation. Motion at 34. However, because the funds provided by the Holding Company do not support the
LLC in that the LLC is financially self-sustaining, whether the Holding Company has an ongoing commitment
or legal obligation to fund the Charter School Corporation is not determinative for purposes of summary
judgment.
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iii.
Whether Plaintiffs can sustain a claim for compensatory
damages
Having found that there are genuine issues of material fact with respect to whether
the Charter School Corporation has failed to provide appropriate and necessary auxiliary
aids to ensure that Plaintiffs received an equal opportunity to benefit from the LLC courses,
the Court next turns to Plaintiffs’ claim for compensatory damages. See Liese v. Indian
River Cnty. Hosp. Dist., 701 F.3d 334, 344 (11th Cir. 2012) (stating that although a
reasonable juror could find that the defendant hospital “failed to provide appropriate and
necessary auxiliary aids”, “such a failure by itself will not sustain a claim for compensatory
damages” because the plaintiffs “must also show by a preponderance that the [h]ospital’s
failure to provide appropriate auxiliary aids was the result of intentional discrimination”). “To
prevail on a claim for compensatory damages under . . . the RA . . ., a plaintiff must show
that a defendant violated his rights under the statutes and did so with discriminatory intent.”
McCullum v. Orlando Regional Healthcare Sys., Inc., 768 F.3d 1135, 1146-47 (11th Cir.
2014) (citing Liese, 701 F.3d at 342). Thus, although the Court has determined that genuine
issues of material facts exist with respect to whether the Charter School Corporation has
violated the RA, to avoid summary judgment on their compensatory damages claim,
Plaintiffs “must also establish a genuine issue of material fact that [the Charter School
Corporation] acted or failed to act, with discriminatory intent.” Id. at 1147 n.8. “To establish
deliberate indifference, a plaintiff must show that the defendant ‘knew that harm to a
federally protected right was substantially likely’ and ‘failed to act on that likelihood.’” Id. at
1147 (quoting Liese, 701 F.3d at 344).
Additionally, Plaintiffs must show deliberate
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indifference on the part of “an official who at a minimum has authority to address the alleged
discrimination to institute corrective measures on the organization’s behalf and who has
actual knowledge of discrimination in the organization’s programs and fails to adequately
respond.” Liese, 701 F.3d at 349 (alterations and emphasis omitted). As such, for Plaintiffs’
compensatory damages claim to survive summary judgment, “a reasonable juror must be
able to find” that a Charter School Corporation official (1) knew that the Charter School
Corporation had failed to provide Plaintiffs with appropriate auxiliary aids necessary to
ensure effective communication; (2) had the authority to order that aid be provided; and (3)
was deliberately indifferent as to the Charter School Corporation’s failure to provide aid.”
Liese, 701 F.3d at 351.
In the Motion, the Charter School Corporation asserts that “Plaintiffs are not entitled
to any compensatory damages . . . because there is no ‘intentional discrimination or bad
faith’ on the part of” the Charter School Corporation. Motion at 37. Specifically, the Charter
School Corporation argues that “the inability of the [LLC] to provide unlimited American sign
language interpreters to [P]laintiffs to attend adult enrichment courses is clearly not enough
to support a finding of deliberate indifference.” Id. Further, the Charter School Corporation
asserts that Plaintiffs cannot show deliberate indifference because the Charter School
Corporation “has at all times believed and continues to believe that its actions . . . are in
compliance with state and federal law.” Id. at 38.
In opposition, Plaintiffs argue that the deliberate indifference standard is not, as
Plaintiffs claim the Charter School Corporation asserts, “that Defendant ‘knew its alleged
actions were a violation of [P]laintiffs[’] federally protected right.” Response at 46. Instead,
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Plaintiffs argue that they can satisfy the first element of their compensatory damages claim
because the Charter School Corporation “knowingly refused an effective accommodation.”
Id. With respect to the third element73 Plaintiffs assert that the following deposition testimony
from Wise “provides conclusive evidence” demonstrating deliberate indifference:
Well, I think the difference to me is that where does this end. Let’s just say
that we have a bunch of Chinese people that live in The Villages. Are we
going to have interpreters for them in every event in The Villages? So I think
there’s a substantial difference.
Id. at 47 (quoting Wise Dep. at 29-30).
The Eleventh Circuit has repeatedly stated that “a plaintiff cannot establish a claim
under the [RA] alleging that a defendant discriminated against him by failing to provide a
reasonable accommodation unless he demanded such an accommodation.” Gaston v.
Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir. 1999); see also U.S. v.
Hialeah Hous. Auth., 418 F. App’x 872, 876 (11th Cir. 2011) (stating that “[t]his Court has
held that under the [RA] and the ADA, ‘the duty to provide a reasonable accommodation is
not triggered unless a specific demand for an accommodation has been made’ and that
“[d]efendants must have . . . the ability to conduct a meaningful review of the requested
accommodation”).
Although there are several plaintiffs who testified that they never
attempted to register for an LLC course and have never requested a sign language
interpreter from LLC,74 the Charter School Corporation “acknowledges” that there is a futility
73
Plaintiffs do not expressly address the second element.
74
The following Plaintiffs testified as such: Thomas Hickey (Doc. 131-9 at 25-26); Charles Martin (Doc.
131-20 at 24-25); Robert McDevitt (Doc. 132-4); Kathleen McElwain (Doc. 131-32 at 63-64); Francis Langlois
(Doc. 131-14 at 28-29; 31-32); Herbert Pickering (Doc. 131-33 at 23; 27-28); Doris Schwarz (Doc. 131-7 at 36(continued...)
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exception with respect to [RA] claims. Motion at 38. Thus, because the Charter School
Corporation does not seek summary judgment with respect to Plaintiffs’ RA claims on the
grounds that any of the Plaintiffs failed to request an accommodation, the Court will not
dismiss any of the Plaintiffs on this basis.
Turning to the first element of Plaintiffs’ compensatory damages claims, whether an
agent of the Charter School Corporation knew that it failed to provide Plaintiffs with
appropriate auxiliary aids necessary to ensure effective communication, the record shows
that the Director of the Charter School Corporation, Randy McDaniel, decided that the LLC
would not provide sign language interpreters based on his belief that it was not a financially
sustainable accommodation and that there was not adequate availability of qualified
interpreters. McDaniel Dep. at 49-51. As such, a reasonable juror could conclude that
without sign language interpreters, Plaintiffs would not have access to effective
communication in the LLC courses and that the Charter School Corporation was aware of
this fact. See Liese, 701 F.3d at 351 (reasonable juror could find that doctor knew “he was
not effectively communicating with” the deaf patient-plaintiff “and that “[the plaintiff] needed
more substantive interpretive aids to understand the nature of and need for her surgery”).
Additionally, on this record, a reasonable juror could conclude that an “official” had the
authority to order that aid be provided, so Plaintiffs have also established a genuine issue
of material fact as to the second element of their compensatory damages claims.
74
(...continued)
37); Andrew St. John (Doc. 131-26 at 38-41); Diane St. John (Doc. 131-36 at 31-32); Evelyn Walker (Doc. 13122 at 16-19); Randall Walker (Doc. 131-21 at 26-28); Mary Wilson (Doc. 131-38 at 25-26, 30); and Shirley
Zimmerman (Doc. 131-18 at 30-31).
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As to the third element, whether the Charter School Corporation was deliberately
indifferent to its failure to provide auxiliary aids, the arguments raised by the Charter School
Corporation and Plaintiffs in the Motion and Response both miss the mark. The Charter
School Corporation’s belief that its actions are “in compliance with state and federal law” is
irrelevant to the question of whether it was deliberately indifferent. Additionally, Wise’s offthe-cuff deposition testimony is not indicative of deliberate indifference with regard to the
LLC’s refusal to provide sign language interpreters. Instead, the proper inquiry is whether
the Charter School Corporation knew that Plaintiffs required an auxiliary aid to effectively
benefit from the LLC courses but, nevertheless, deliberately refused such aid. Here, the
Charter School Corporation does not appear to argue that they have provided Plaintiffs an
effective auxiliary aid under the RA.75 Rather, they maintain that the provision of sign
language interpreters is cost prohibitive and thus an undue hardship. As such, a reasonable
juror could find that the Charter School Corporation knew that Plaintiffs required sign
language interpreters and deliberately failed to provide them. Accordingly, because there
is a genuine issue of material fact with respect to whether the Charter School Corporation’s
failure to provide sign language interpreters was the result of intentional discrimination, the
Motion is denied to the extent the Charter School Corporation seeks summary judgment as
to Plaintiffs’ claim for compensatory damages as to their RA claims.
75
However, to the extent the Charter School Corporation asserts that the DNS program is an effective
auxiliary aid, based on the record before the Court, a reasonable juror could conclude that the Charter School
Corporation knew that Plaintiffs required a more effective aid (sign language interpreters, for example) and
deliberately refused such aid.
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iv.
Whether Plaintiffs are entitled to injunctive relief
Plaintiffs also seek injunctive relief with respect to their RA claim. See Complaint at
58. “To issue a permanent injunction under the . . . [RA], the Court must apply the same
factors as it would in any other case in which a plaintiff sought a permanent injunction.” H.
v. Montgomery Cnty. Bd. of Educ., 784 F. Supp. 2d 1247, 1268 (M.D. Ala. 2011) (citation
omitted).
“[A] plaintiff seeking a permanent injunction must satisfy a four-factor test
before a court may grant such relief. A plaintiff must demonstrate: (1) that
[she] has suffered an irreparable injury; (2) that remedies available at law,
such as monetary damages, are inadequate to compensate for that injury; (3)
that, considering the balance of hardships between the plaintiff and defendant,
a remedy in equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction.”
Id. at 1268-69 (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-57
(2010)). Neither side addresses the factors the Court must consider prior to granting an
injunction, “despite the fact that a party seeking summary judgment bears the ‘responsibility
of informing the district court of the basis for its motion.’” Id. at 1269 (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)). As such, the Motion is denied to the extent the
Charter School Corporation seeks summary judgment as to Plaintiffs’ claim for injunctive
relief with respect to their RA claims.
In accordance with the foregoing, it is
ORDERED:
1.
The claims raised by Plaintiff Patricia Smart against Defendants are
DISMISSED with prejudice.
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2.
Defendants, the Village Center Community Development District and Sumter
Landing Community Development District’s Motion for Summary Judgment,
with Incorporated Memorandum of Law (Doc. 131) is GRANTED.76
3.
In light of the entry of summary judgment, the Clerk of the Court is directed to
terminate, as moot, Defendants, the Village Center Community Development
District and Sumter Landing Community Development District's Motion in
Limine and Incorporated Memorandum of Law (Doc. 155) and Plaintiffs'
Motion in Limine to Exclude the FCHR Report (Doc. 164).
4.
Pursuant to Rule 54(b), finding that there is no just reason to delay the entry
of final judgment on those claims,77 the Clerk of the Court is further directed
to enter JUDGMENT in favor of Defendants the Village Center Community
Development District and Sumter Landing Community Development District
and against Plaintiffs Louis Schwarz, et al.
5.
Defendant, the Villages Charter School, Inc. d/b/a the Villages Lifelong
Learning College’s Motion for Summary Judgment and Memorandum of Law
(Doc. 132) is GRANTED, in part, and DENIED, in part.
76
Footnote deleted pursuant to Order (Doc. 188).
77
Because the Court has disposed of all claims against the Districts, the Court finds that the balance
of judicial administrative interests and the relevant equitable concerns weigh in favor of Rule 54(b) certification.
See Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166 (11th Cir. 1997). As is apparent from this
Amended Order, although Plaintiffs’ ongoing claim against The Villages Charter School, Inc. involves one of
the same statutes, that claim is premised on entirely separate facts against a different defendant such that
“neither the same issues nor facts would be before the reviewing court more than once.” See Explosives Supply
Co., Inc. v. Columbia Nitrogen Corp., 691 F.2d 486, 486-87 (11th Cir. 1982).
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A.
The Villages Charter School, Inc.’s Motion is GRANTED as to Count
II of the Third Amended Complaint.
B.
The Villages Charter School, Inc.’s Motion is DENIED as to Count V of
the Third Amended Complaint.
DONE AND ORDERED in Chambers, this 29th day of February, 2016.
lc18
Copies to:
Counsel of Record
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