Smith et al v. The Village Club, Inc. et al

Filing 18

ORDER denying 6 motion to dismiss. Signed by Judge Charlene Edwards Honeywell on 8/11/2015. (ABC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLES SMITH and DOROTHY
CAPEZZA,
Plaintiffs,
v.

Case No: 8:15-cv-579-T-36AEP

THE VILLAGE CLUB, INC. and JIM
RUBERT,
Defendants.
___________________________________/
ORDER
This matter comes before the Court upon the Defendants’ Motion to Dismiss with Prejudice
Plaintiffs’ Complaint (Doc. 6). The Court, having considered the motion and being fully advised
in the premises, will deny Defendants’ Motion to Dismiss.
I.

Facts Alleged by Plaintiffs 1
Plaintiffs Charles Smith (“Smith”) and Dorothy Capezza (“Capezza”) have filed a four-

count Complaint against Defendants The Village Club, Inc. d/b/a Brookhaven Village, Inc.
(“Brookhaven”) and one of its Board Members, Jim Rubert (“Rubert”), alleging, inter alia,
violations of the Fair Housing Act (“FHA”). See Doc. 1. Brookhaven operates housing units in
which both Smith and Capezza reside. See id. ¶¶ 3-7. On February 23, 2015, Brookhaven’s Board
of Directors (“BOD”) voted to initiate legal action against Brookhaven residents that have dogs,
including Smith and Capezza. Id. ¶ 11. Both Smith and Capezza allege that they are entitled to

1

The following statement of facts is derived from Plaintiffs’ Complaint (Doc. 1), the allegations of which the Court
must accept as true in ruling on the instant Motion to Dismiss. Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir.
1992); Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F. 2d 989, 994 (11th Cir.
1983).

keep their dogs, despite Brookhaven’s pet restrictions, because they are service animals necessary
to accommodate Smith and Capezza’s disabilities.
A.

Charles Smith

Smith suffers from severe hearing loss that requires the use of hearing aids, which he asserts
is a “handicap” pursuant to the FHA. Id. ¶ 15. Smith’s service animal assists Smith in coping with
his hearing loss by alerting him to sounds, especially when he is sleeping and therefore not wearing
his hearing aids. Id. ¶¶ 16-17. Smith has resided in the Brookhaven Village community since
March of 2014. Id. ¶ 18. Prior to moving to Brookhaven Village, Smith notified Brookhaven’s
then President, Frank Nutter, of his need for a service animal due to his hearing loss, and provided
the dog’s vaccinations and registration information. Id. ¶ 19. Smith was told by Frank Nutter that
his service dog would not be an issue. Id. For approximately nine months thereafter, Smith lived
with his service animal in Brookhaven. Id. ¶ 20
On December 3, 2014, Brookhaven, through counsel, sent Smith a threatening letter
demanding that he remove his dog from the premises within thirty (30) days. Id. ¶ 21. The letter
warned that if Smith did not comply “the Association will have to take further actions in order to
enforce its Rules and Regulations, including the possible initiation of legal actions against you.”
Id. On December 4, 2014, Smith sent Brookhaven a letter in which he informed Brookhaven and
its counsel that when he moved into the community, he informed the President of Brookhaven that
he has a service dog “and provided the association with vet records stating her shots are up to date
and she is registered.” Id. ¶ 22.
On December 23, 2014, Brookhaven, by way of counsel, sent Smith a letter stating that the
Brookhaven Village Board of Directors must have the opportunity to fully investigate this matter,
and instructing Smith to:

2

1) Produce medical records and/or documents to
demonstrate that [he is] suffering from a medical disability or
handicap that has been diagnosed by a healthcare provider, unless
[his] medical disability or handicap is readily ascertainable;
2) Demonstrate how this service animal reasonably
accommodates [his] medical disability or handicap. This would
include providing a copy of the prescription written by a healthcare
provider;
3) Demonstrate how this service animal has special skills or
training to accommodate [his] medical disability or handicap. This
would include providing any certification that the animal has
received which notes its training as a service animal; and
4) Demonstrate how the special skills or training of the
service animal set it apart from an ordinary pet
Id. ¶ 23.
Smith sent a letter the following day to Brookhaven, in which he again reiterated that his
dog is a service dog that assists him with his hearing loss. Id. ¶ 24. On January 6, 2015, Brookhaven
sent Smith a “STATUTORY OFFER TO PARTICIPATE IN PRE-SUIT MEDIATION,” and
stating that if he fails to participate in mediation, “suit may be brought against you by the
Association without further warning. Id. ¶ 25.
Smith, through counsel, provided to Brookhaven a letter from his physician, Doctor of
Audiology, Dr. Gyl Kasewurm, Au. D., which verified Smith’s disability due to hearing loss, and
explained: “Mr. Smith sleeps without his hearing aids, and often cannot hear someone at the door
even when he is wearing them. His dog alerts him when someone is at the door barking loudly and
jumping on the bed, or circling Mr. Smith’s legs if he is in a chair. The dog would also alert Mr.
Smith if there was an intruder.” Id. ¶ 27. Smith’s counsel requested confirmation that Brookhaven
Village has waived the community’s no pet rule for Mr. Smith’s assistance animal within 7 days
of the correspondence. Id. No such confirmation has been received. Id. Instead, Brokhaven’s
counsel continued to demand additional information and documentation from Smith. Id. ¶ 28.
3

B.

Dorothy Capezza

Plaintiff Dorothy Capezza (“Capezza”) suffers from severe anxiety, a mental impairment
which substantially limits one or more major life activities, and therefore alleges that she suffers a
“handicap” as defined by the FHA. Doc. 1 ¶ 34. Capezza relies upon an assistance animal that
provides support for and/or ameliorates the symptoms of her anxiety disorder. Id. ¶ 35.
Capezza has resided in Brookhaven Village community since January 2013. Id. ¶ 36. Prior
to moving to Brookhaven Village, Capezza informed Brookhaven’s then President, Frank Nutter,
that she would not move to the community unless she were allowed to reside therein with her
emotional-support dog. Id. ¶ 37. Per request of Frank Nutter, Capezza provided Brookhaven with
a copy of the dog’s vaccination information and license, and a prescription from Capezza’s doctor
attesting to her need to live with the dog as an emotional support animal. Id. ¶ 38.
On December 3, 2014, Brookhaven sent Capezza a letter demanding that she remove her
dog from the premises within 30 days. Id. ¶ 39. On December 17, 2014, Capezza sent a letter to
Brookhaven in which Capezza informed Brookhaven and its counsel that she had prior approval
for her dog, and attached copies of two prescription notes for her emotional-support animal written
by Capezza’s physician. Id. ¶ 40.
In a letter dated December 31, 2014, Brookhaven, by way of counsel, sent Capezza another
letter mirroring the December 23, 2014, letter above that was sent to Smith. Id. ¶ 41. Six days later,
Brookhaven served Capezza with the STATUTORY OFFER TO PARTICIPATE IN PRE-SUIT
MEDIATION, also mirroring the same information, stated above, that was sent, on January 6,
2015, to Smith. Id. ¶ 42. As of the date of this filing, Brookhaven has failed to grant Capezza an
accommodation for an emotional support animal. Id. ¶ 44.

4

II.

Standard of Review
To survive a motion to dismiss, a pleading must include a “short and plain statement of the

claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)
(quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of
a cause of action are not sufficient. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain
sufficient factual matter, which, if accepted as true, would “state a claim to relief that is plausible
on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citation omitted). The court, however, is not
bound to accept as true a legal conclusion stated as a “factual allegation” in the complaint. Id.
When, as here, documents are attached as exhibits to the pleading those documents are
considered a part of the pleading for all purposes. See Fed. R. Civ. P. 10(c). If there is a conflict
between the complaint and the supporting documents, the information contained in the supporting
documents controls. Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).
III.

Analysis
Defendants now move to dismiss Plaintiffs’ Complaint with prejudice. Plaintiffs assert

claims for failure to reasonably accommodate and intimidation against both Defendants.
Defendants attack Plaintiffs’ claims for failure to accommodate as insufficiently pleaded.
However, Defendants have made no argument regarding the claims for intimidation.

5

A.

Failure to State a Claim

To state a claim for failure to accommodate pursuant to 42 U.S.C. § 3604(f)(3)(B), the
Plaintiffs must allege that: (a) each of them suffered from a handicap within the meaning of the
FHA; (b) Defendants knew, or should have known, of the disability; (c) the requested
accommodation was necessary to afford “an equal opportunity to use and enjoy the dwelling”; (d)
the requested accommodation is reasonable; and (e) the Defendants refused to make the
accommodation. See Schwartz v. City of Treasure Island, 544 Fed.3d 1201, 1218-19 (11th Cir.
2008); Hawn v Shoreline Towers Phase I Condominium Association, Inc., 347 Fed. Appx. 464,
467 (11th Cir. 2009). The FHA defines “handicap” as “(1) a physical and mental impairment which
substantially limits one or more of such person’s major life activities, (2) a record of having such
impairment, or (3) being regarded as having such impairment. . .” 42 U.S.C. §3602(h). Federal
Regulations interpret “physical and mental impairment” to include any “mental or psychological
disorder,” such as “emotional illness.” 24 C.F.R. §100.201(a)(2). Federal Regulations interpret
“major life activities” as “functions such as caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning and working.” 24 C.F.R. §100.201(b).
Here, Plaintiffs allege that Defendants violated the FHA by denying the Plaintiffs’ requests
to keep their service animals. Plaintiffs allege that Smith’s handicap is hearing loss and Capezza’s
handicap is anxiety.
Defendants claim that Capezza failed to provide adequate documentation to show that she
is disabled or handicapped within the meaning of the FHA. The allegations in the Complaint,
which must be accepted as true at this time, indicate that Capezza provided Defendants with two
prescription notes written by Capezza’s physician which stated that Capezza suffers from anxiety
and needs an emotional-support animal. Doc. 1 ¶¶ 38-40. Thus, there are sufficient allegations to

6

show that Capezza has provided Brookhaven with documentation of her handicap and/or disability
within the meaning of the FHA.
Defendants also argue that Smith failed to provide any documentation or evidence to show
that his “service dog” received any type of training as a “service animal.” Doc. 6 at p. 12. However,
the Complaint alleges that Smith, through counsel, provided defendants with a letter from his
physician which states, “Mr. Smith sleeps without his hearing aids, and often cannot hear someone
at the door even when he is wearing them. His dog alerts him when someone is at the door by
barking loudly and jumping on the bed, or circling Mr. Smith’s legs if he is in a chair. The dog
would also alert Mr. Smith if there was an intruder.” Doc. 1 ¶ 27. Upon deciding that the
documentation provided by Smith’s physician was not sufficient, Defendants sent Smith another
letter requiring more documentation. Id. ¶ 23.
Plaintiff responded that the documentation previously provided by Smith’s physician was
sufficient to show that the accommodation was necessary to afford an equal opportunity to use and
enjoy the dwelling and, therefore, Smith was not required to provide the additional information
requested by the defendants. Housing and Urban Development (HUD) has consistently taken the
position that for purposes of FHA, “animals necessary as a reasonable accommodation do not
necessarily need to have specialized training. Some animals perform tasks that require training,
and others provide assistance that does not require training.” See Pet Ownership for the Elderly
and Persons with Disabilities, 73 F.R. 63834-38 (October 27, 2008). Further, multiple courts have
rejected a requirement that a hearing dog must be professionally trained or certified, Green v
Housing Auth., 994 F. Supp. 1253, 1256 (D. Or. 1998) (citing Bronk v Ineichen, 54 F.3d 425, 430
(7th Cir. 1995)), and HUD has promulgated clear guidance regarding assistance animals, (Service
Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO Notice:

7

FHEO-2013-01 (April 25, 2013)) which specifically states that “[f]or purposes of reasonable
accommodation requests, neither the FHA nor section 504 requires an assistance animal to be
individually trained or certified.” Therefore, the documentation provided by Smith’s physician is
sufficient to support his claim for failure to accommodate.
Next, Defendants allege that there was no refusal to grant the plaintiffs’ request for
accommodations, but only that they were taking time to perform a meaningful review of the request
to determine if it is statutorily required. However, demands for extraneous information regarding
a requested accommodation have been found to constitute denial of accommodations under the
FHA. Bhogaita v Altamonte Heights Condo. Ass’n, 765 F.3d 1277 (11th Cir. 2014). Here, Plaintiffs
allege that Defendants have repeatedly asked for extraneous documentation that is not required
under the FHA. They assert, by making the provision of such documentation a pre-requisite to
granting an accommodation, the Defendants have effectively and illegally denied Plaintiffs the
reasonable accommodations they need. Doc. 7, pg. 8
B.

Mootness

Finally, Defendants assert that even if Capezza’s Complaint did set forth a cause of action,
her claim still should be dismissed based upon her admission that prior to filing this lawsuit, her
dog died. Defendants claim that the death of Capezza’s dog renders her claims moot and no longer
subject to the jurisdiction of this Court. Doc. 6 at p. 18.
Article III of the Constitution limits Federal judicial power to that of “cases and
controversies.” The dispute before the court must be real and live, not feigned, academic or
conjectural. Russman v Board of Education, 260 F.3d 114, 118 (2d Cir. 2001). When the issues in
dispute between the parties “are no longer live,”’ a case becomes moot. Powell v McCormack, 395
U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d. 491 (1969) and, “the court loses jurisdiction over the

8

suit which therefore must be dismissed.” Russman v Board of Education, 260 F.3d at 118-19.
While not indicated by the Complaint, Plaintiff concedes the fact that her dog died but argues that
the claim is still “live” because she is currently trying to get another dog and is being prevented
from doing so without a valid waiver from Defendants. Doc. 7 at p. 9. Thus, Capezza is still seeking
an accommodation, even if she will be using a different animal, making the dispute still an active
case or controversy. Accordingly, it is
ORDERED that Defendants’ Motion to Dismiss (Doc. 6) is DENIED. In accordance
with the Federal Rules of Civil Procedure, Defendants shall answer the Complaint.
DONE AND ORDERED in Tampa, Florida on August 11, 2015.

Copies to:
Counsel of Record and Unrepresented Parties, if any

9