Sabal Palm Condominiums of Pine Island Ridge Association, Inc. v. Fischer et al
Filing
283
OMNIBUS ORDER granting in part and denying in part three motions to dismiss ( 89 , 95 , and 96 ); denying a Motion 90 to strike the Fischers' punitive-damages claim; and denying the Fischers' Motion 214 seeking leave to amend their Amended Counterclaim and Third Party Complaint. Signed by Judge Robert N. Scola, Jr. Signed by Judge Robert N. Scola, Jr. (rm00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-60691-Civ-SCOLA
Sabal Palm Condominiums of Pine
Island Ridge Association, Inc.,
Plaintiff,
vs.
Laurence M. Fischer and Deborah
G. Fischer, et al.,
Defendants.
_____________________________________/
Omnibus Order
The underlying dispute in this case is whether Laurence and Deborah
Fischer, who are residents of Sabal Palm Condominiums of Pine Island Ridge
Association, Inc., may keep a service dog, Sorenson, in their condominium as a
reasonable accommodation under the Fair Housing Act (FHA), 42 U.S.C. §
3601 et seq., to assist Deborah, who has multiple sclerosis and is confined to a
wheelchair. Deborah requested an accommodation in October 2011 because
Sabal Palm has a no-pets policy.1 On Sabal Palm’s request, Deborah provided
Sabal Palm with medical records substantiating that she has multiple
sclerosis, is disabled within the meaning of the FHA, and suffers from various
symptoms including severe difficulty in grabbing and manipulating items. She
also provided records substantiating that Sorenson is a certified service dog
trained to help her by retrieving items, opening and closing doors, and turning
light switches on and off. Though that information should have been enough
for Sabal Palm to grant Deborah’s accommodation request, Sabal Palm
(unwisely) decided that it wasn’t. So in April 2012, it authorized its attorney,
Christopher Trapani, to bring a declaratory-judgment action to have the Court
decide (1) whether Sabal Palm was required under the FHA to grant Deborah
an exemption from its no-pets policy and allow it to keep her dog, and (2) the
The policy actually provides that no resident may have a pet without the
consent of Sabal Palm’s Board of Directors, other than one cat or fish. (ECF
No. 82-10 at 5.) But no pet will be permitted that weighs more han 20 pounds
at maturity. (Id.) For ease of reference and because the pets allowed by the
policy do not matter for the issues in this case, the Court refers to the policy as
the no-pets policy.
1
extent of the records that Sabal Palm was entitled to under the FHA in order to
evaluate Deborah’s requested accommodation. In the declaratory-judgment
action, Sabal Palm is the Plaintiff and the Fischers, the Defendants.
The Fischers then brought three counterclaims against Sabal Palm and
three identical third-party claims against Trapani, the attorney, and Marvin
Silvergold, who was (and possibly still is) the President of Sabal Palm’s Board of
Directors. (ECF No. 82.) For ease of reference the Court refers to this action as
the Amended Counterclaim and to Sabal Palm, Trapani, and Silvergold
collectively as Counter Defendants. The three claims asserted against Counter
Defendants all allege violations of the FHA. They are: (1) that Counter
Defendants violated 42 U.S.C. § 3604(f)(3)(B) by refusing the Fischers’ request
for an accommodation
(refusal-to-accommodate claim); (2) that Counter
Defendants violated 42 U.S.C. §3604(c) by promulgating rules in December
2011 for residents to keep pets and for disabled persons to obtain exemptions
to the no-pets policy as an accommodation for their disability; and (3) that
Counter Defendants violated 42 U.S.C. § 3617 by instituting the declaratoryjudgment action in order to retaliate against the Fischers for asserting their
right to an accommodation under the FHA. (ECF No. 82.) For these alleged
violations of the FHA, the Fischers seek injunctive relief, compensatory and
punitive damages, and their attorney fees and costs. (Id.)
Each Counter Defendant filed a motion to dismiss all of these claims
under Rule 12(b)(6) of the Federal Rules of Civil Procedure and to strike the
Fischers’ claim for punitive damages. (ECF Nos. 89, 90, 95, 96.) For the
reasons set forth below, the motions to dismiss (ECF Nos. 89, 95, 96) are
granted in part and denied in part and the request to strike punitive
damages (ECF No. 90) is denied. More specifically, the Court grants the
motions to dismiss with respect to the Fischers’ § 3604(c) and § 3617 claims.
These claims are dismissed with prejudice. But the Court denies the motions
to dismiss with respect to the Fischers’ refusal-to-accommodate claim. The
Court also denies the Fischers’ motion (ECF No. 214) seeking leave to amend
their Amended Counterclaim.
Before proceeding, the Court pauses to note that, according to the
Background Paper prepared for a United States Senate Informational Hearing
on the subject of fake service dogs (hereafter, the “Background Paper”),2 there
is a growing problem of people using fake service dogs, which has a “profound”
The Background Paper can be found online at the following website:
http://sbp.senate.ca.gov/sites/sbp.senate.ca.gov/files/Background%20Paper
%20for%20Fake%20Service%20Dog%20Hearing%20%282-14-14%29.pdf (last
accessed on March 12, 2014).
2
and negative effect “on the disabled, business and medical communities, and
the airline industry.” Background Paper at 11; accord Background Paper at 12, 11, 13. And after the court in Auburn Woods I Homeowners Association v.
Fair Employment and Housing Commission, 121 Cal. App. 4th 1578[, 1582,
1584-85, 1599 (2004), held that “a homeowner’s association had discriminated
against condominium residents, a married couple who suffered from
depression and other disorders, in failing to reasonably accommodate their
disabilities by permitting them to keep a small companion dog . . . the number
of housing disability cases involving companion or comfort animals as a
reasonable accommodation has soared.” Background Paper at 10-11.
So the Court realizes that there is some reason to be skeptical of
requests to keep a dog as an accommodation for a disability in certain cases,
particularly cases where the dog assists the disabled person by rendering
emotional support. But this is not such a case. It is undisputed that Deborah
has a bona fide physical disability that has severe physical symptoms. And her
specially trained service dog does not assist her by providing emotional
support: it assists her by helping her complete physical tasks that her physical
disability makes difficult. That Counter Defendants turned to the courts to
resolve what should have been an easy decision is a sad commentary on the
litigious nature of our society. And it does a disservice to people like Deborah
who actually are disabled and have a legitimate need for a service dog as an
accommodation under the FHA.
Background
Because a detailed fact section is unnecessary, the Court primarily
recounts the relevant facts in the analysis section below. But since the heart of
the Fischers’ Amended Counterclaim is the refusal-to-accommodate claim,
familiarity with the FHA provisions undergirding this claim is helpful. The FHA
forbids discrimination “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.”3 42 U.S.C.
§ 3604(f)(2). Prohibited discrimination includes “a refusal to make reasonable
accommodations in rules, policies, practices, or services, when such
Although the FHA uses the term handicap rather than disability, both terms
have the same legal meaning: the definition of disability in the Americans with
Disabilities Act “is drawn almost verbatim” from the definition of handicap
“contained in the Fair Housing Amendments Act of 1988. Congress’ repetition
of a well-established term [implies] that Congress intended the term to be
construed in accordance with pre-existing regulatory interpretations.” Bragdon
v. Abbott, 524 U.S. 624, 631 (1998).
3
accommodations may be necessary to afford [a disabled person an] equal
opportunity to use and enjoy a dwelling.” 42 U.S.C. §3604(f)(3)(B).
Two other helpful anchors are (1) knowing precisely what records Sabal
Palm asked for and (2) Sabal Palm’s belief about the validity of the Fischers’
accommodation request at the time Sabal Palm brought the declaratoryjudgment action. Sabal Palm requested that Deborah produce copies of her
medical records from all of her healthcare providers who diagnosed or treated
the disability that she claimed made a service dog necessary. (ECF No. 82-2 at
2.) In addition, Sabal Palm requested that she provide “all documents relating
to the nature, size and species of dog, as well as all documents regarding any
training it received.” (Id. (emphasis added).) Though Deborah provided Sabal
Palm with medical records substantiating her disability and its impact on her
life, and with a record of Sorenson’s training and certification, she did not
provide all of her medical records relating to her disability nor all records
relating to Sorenson’s characteristics and his training. Because Sabal Palm
believed that it was entitled to all of these records and that the records
Deborah provided were insufficient to entitle her to keep Sorenson as an
accommodation under the FHA, Sabal Palm had Trapani institute the
declaratory-judgment action. (ECF No. 129; ECF No. 82-9.)
Sabal Palm’s precise posture concerning Deborah’s ability to keep
Sorenson at the time it sued is nuanced. In a letter sent to the Fischers by
Trapani on behalf of Sabal Palm just a few days after Sabal Palm brought the
declaratory-judgment action, Sabal Palm relayed, in relevant part, the
following: that it is undisputed that Deborah is disabled; that it is undisputed
that her request to keep Sorenson “would not involve an extraordinary expense
on the part of [Sabal Palm]”; that Sabal Palm believed the records provided
thus far were insufficient to entitle Deborah to a dog as an accommodation
under the FHA; that Sabal Palm believed that it was within its legal rights to
deny the accommodation and require Deborah to remove Sorenson; that Sabal
Palm “recognize[d] that whether, and under what circumstances,
accommodations to disabled persons are required is an evolving issue under
the law”; that Sabal Palm therefore instructed Trapani to bring the declaratoryjudgment action; and that while the lawsuit is pending, Deborah could
“temporarily keep” Sorenson. (ECF No. 82-9 at 2-3.)
Analysis
A.
Motion-to-dismiss standard
When considering a motion to dismiss under Rule 12(b)(6), the Court
must accept all of a complaint’s well-pled factual allegations as true,
construing them in the light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Under Rule 8(a)(2) of the
Federal Rules of Civil Procedure, a pleading need only contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.”
Though the Rule does not require detailed factual allegations, it does require
“sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (brackets,
internal citation, and internal quotation marks omitted). “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. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. So a pleading that offers mere
“labels and conclusions” or “a formulaic recitation of the elements of a cause of
action” will be dismissed. Id.
Faced with a motion to dismiss, a court should therefore “(1) eliminate
any allegations in the complaint that are merely legal conclusions; and (2)
where there are well-pleaded factual allegations, assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.”
American Dental Association v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.
2010) (internal quotation marks omitted). Moreover, “courts may infer from the
factual allegations in the complaint obvious alternative explanations, which
suggest lawful conduct rather than the unlawful conduct the plaintiff would
ask the court to infer.” Id. (brackets and internal quotation marks omitted).
“This is a stricter standard than the Supreme Court described in Conley v.
Gibson, 355 U.S. 41, 45-46 (1957), which held that a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.” Mukamal v. Bakes, 378 F. App’x 890, 896 (11th Cir. 2010)
(internal quotation marks omitted). These precepts apply to all civil actions,
regardless of the cause of action alleged. Kivisto v. Miller, Canfield, Paddock &
Stone, PLC, 413 F. App’x 136, 138 (11th Cir. 2011).
B.
Silvergold’s officer-immunity argument
Silvergold argues that the Fischers’ claims against him must be
dismissed because he is immune as an officer of Sabal Palm under Florida
Statute § 617.0834. (ECF No. 89 at 7-8.) This argument is unpersuasive. In
relevant part, § 617.0834 provides that an officer of a nonprofit organization is
generally “not personally liable for any statement, vote, decision, or failure to
take an action, regarding organizational management or policy by an officer.”
But § 617.0834, a state statute, cannot bar a claim under the FHA, a federal
cause of action. Housing Opportunities Project for Excellence, Inc. v. Key Colony
No. 4 Condominum Association, Inc., 510 F. Supp. 2d 1003, 1014 (S.D. Fla.
2007) (Martinez, J.). And even if that weren’t true, immunity under § 617.0834
is not absolute: an officer is personally liable when that officer breaches his or
her duties as an officer and the breach constitutes “[r]ecklessness or an act or
omission that was committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights.” Fla. Stat.
§ 617.0834(1)(b)(3). The Fischers sufficiently allege that Silvergold falls within
this exception to § 617.0834 immunity: they allege (1) that Silvergold “was
personally involved in each and every discriminatory act mentioned [in the
Amended Counterclaim] during his tenure as President of [Sabal Palm’s] Board
of Directors” and (2) that Silvergold discriminated against the Fischers “in total
and reckless disregard of [the Fischers’] rights” under the FHA. (ECF No. 82 at
3, 15.)
Likely sensing that his argument lacks legal support, Silvergold adds a
new argument in his reply brief: namely, that the Fischers failed to sufficiently
allege that he was personally involved in the alleged discriminatory acts. (ECF
No. 113 at 2-4.) But Silvergold forfeited this argument by failing to raise it in
his opening brief. And even if Silvergold had properly raised it, it would still
fail. Individual board members or agents can be held liable when they
“personally committed or contributed to a Fair Housing Act violation.” Falin v.
Condominium Association of La Mer Estates, Inc., 2011 WL 5508654, at *3 (S.D.
Fla. Nov. 9, 2011) (Cohn, J.); accord Housing Opportunities, 510 F. Supp. 2d at
1013-14. The Fischers allege that Silvergold “was personally involved in each
and every discriminatory act” and that he recklessly disregarded their rights
under the FHA. (ECF No. 82 at 3, 15.) Similar factual allegations were found
sufficient in Housing Opportunities. Compare Housing Opportunities, 510 F.
Supp. 2d at 1013-14 (alleging that board members were personally involved in
all discriminatory acts and that board members intentionally discriminated is
sufficient to state a claim for discrimination against the board members under
the FHA), with ECF No. 82 at 3, 12, 18, 20. In addition, other evidence allows
one to reasonably infer that Silvergold contributed to the alleged FHA
violations. Silvergold was (and possibly still is) the President of Sabal Palm’s
Board of Directors when the Board demanded that Deborah provide extensive
information to support her request, decided that the information that it had
would justify it in denying the Fischers’ accommodation request, decided to sue
the Fischers, and promulgated rules requiring disabled persons to provide
extensive information to support a request to keep a pet as an
accommodation—all actions that the Fischers allege were discriminatory.
Moreover, Silvergold is carbon copied on all of Trapani’s letters attached to the
Amended Counterclaim and Trapani’s email asserting that Sabal Palm is
entitled to more information states that it is being forwarded to the Board.
(ECF Nos. 82-2; 82-5; 82-7; 82-9.)
The Fischers allege that these
communications are evidence of the discrimination that she suffered and that
Silvergold knew about them. And since the minutes of the December 14, 2011
board meeting show that Silvergold was present and that the rules passed
unanimously, it follows that Silvergold affirmatively voted for allegedly
discriminatory rules. These facts plausibly suggest that Silvergold contributed
to the FHA violations alleged in the Amended Counterclaim.
C.
Silvergold’s Rule 10(b) argument
Silvergold argues that the Fischers’ Amended Counterclaim must be
dismissed because it does not separately state the claims against Sabal Palm,
Trapani, and Silvergold, thereby “making it unclear which alleged actions or
inactions are being alleged against [him].” (ECF No. 89 at 6.) This extremely
abbreviated argument—it consists of 3 paragraphs and just 5 sentences (two of
which are from Rule 10(b) of the Federal Rules of Civil Procedure)—is
unpersuasive. The Fischers allege that Silvergold was the President of Sabal
Palm’s Board during all the discriminatory acts of which they complain, that
Silvergold was personally involved in each and every discriminatory act, and
that “each reference to Sabal Palm” therefore includes Silvergold. (Id. at 3.) So
Silvergold is aware that the Fischers claim he is liable for all the discrimination
and that his liability stems from his participation as the President in the
Board’s allegedly discriminatory decisions. This is more than enough to enable
Silvergold to sufficiently respond to the allegations against him.
D.
The refusal-to-accommodate claim
The Fischers claim that Sabal Palm, Silvergold, and Trapani all failed to
reasonably accommodate Deborah’s disability by refusing her request to allow
her service dog, Sorenson, to live with her. Sabal Palm, Silvergold, and Trapani
all argue that this claim should be dismissed because they have allowed
Sorenson to live with her during this litigation and therefore did not deny her
accommodation request.
The FHA forbids discrimination “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.”
42 U.S.C. § 3604(f)(2). “Such discrimination 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.” Overlook Mutual Homes, Inc. v.
Spencer, 415 F. App’x 617, 620-21 (6th Cir. 2011) (quoting 42 U.S.C.
§ 3604(f)(3)(B)). “To prevail on a [§] 3604(f)(3)(B) claim”—that is, a claim that a
housing provider refused to reasonably accommodate a disability—“a plaintiff
must establish that (1) he is disabled or handicapped within the meaning of the
FHA, (2) he requested a reasonable accommodation, (3) such accommodation
was necessary to afford him an opportunity to use and enjoy his dwelling, and
(4) the defendants refused to make the requested accommodation.” Hawn v.
Shoreline Towers Phase 1 Condominium Assocation, Inc., 347 F. App’x 464, 467
(11th Cir. 2009).
The parties’ dispute about the viability of the Fischers’ refusal-toaccommodate claim turns on the last element: whether Counter Defendants in
fact refused the Fischers’ request to let Sorenson live with them. The Sixth
Circuit analyzed this precise issue thoroughly in Overlook, a case with a
procedural posture similar to the present case. Although Overlook rejected the
refusal-to-accommodate claim at issue in that case, the reasoning of Overlook
demonstrates that the Fischers’ claim survives scrutiny under Rule 12(b)(6) of
the Federal Rules of Civil Procedure.
In Overlook, the Spencer family resided in Overlook, which had a no-pets
policy. 415 F. App’x at 618. The Spencers adopted a dog, Scooby, in 2005,
and though they admitted that Scooby was not originally prescribed by a
medical professional, they maintained that Scooby had a calming effect on their
daughter, Lynsey, who suffered from anxiety disorder. Id. In 2007, the
Spencers formally requested that they be allowed to keep Scooby as an
accommodation under the FHA. Id. Following this request, a series of letters
was exchanged between Overlook and the Spencers,4 in which Overlook asked
for information documenting Lynsey’s disability and her need for Scooby. The
Spencers provided some of the information Overlook requested. Id. at 618-19.
More specifically, on the eve of the suit, the Spencers had provided the
following information: “a letter from Lynsey’s psychologist, stating that she had
evaluated Lynsey and recommended a service dog”; a form providing the name
of Lynsey’s psychologist; an explanation that Scooby was not a specially
trained service animal, but rather a companion animal that provided emotional
The Spencers often acted through their attorney or the president of a local
fair-housing center. For simplicity, references to the Spencers will also include
communications made by these representatives. Significantly, neither the
Spencers, their attorney, nor the president of the local fair-housing center, Jim
McCarthy, were medical or dog-training professionals. See id. at 618-19.
4
support and companionship; statements from the Spencers themselves or
other nonmedical personnel that Lynsey suffers from “anxiety disorder,
neurological & emotional conditions” that affect “her ability to care for herself
and learn, both of which are . . . recognized as major life activities”; and that
Scooby “ameliorates the effects of Lynsey’s condition through its presence and
interaction with her.” Id. (internal quotation marks omitted). By the time
Overlook filed suit, it had requested but still not received the following
information: “a diagnosis of Lynsey’s medical condition”; contact information
for Lynsey’s medical providers; “a description of the treatment Lynsey was
receiving”; and Lynsey’s school and medical records by way of a signed release
that would allow Overlook to obtain these records. See id. at 618-19. At
various points, Overlook also requested a description of the dog’s training and
of the services it provided, but information responsive to this request was
furnished when the Spencers informed Overlook that Scooby had received no
special training and that he ameliorated the effects of Lynsey’s condition by
being present and interacting with her. See id.
Overlook did not make an official decision on the Spencers’
accommodation request, nor did it begin eviction proceedings; it instead sued
“for a declaratory judgment that it was not required to make the requested
accommodation.” Id. at 619. In response, the Spencers counterclaimed,
alleging, among other things, that Overlook had refused to reasonably
accommodate Lynsey’s disability in violation of the FHA. Id. The case
proceeded to trial and after the evidence had been presented, the district court
entered judgment as a matter of law for Overlook on the Spencers’ refusal-toaccommodate claim, reasoning that “they had presented insufficient proof that
Overlook had actually denied their request for a reasonable accommodation.”
Id. at 620.
On appeal, the Sixth Circuit framed the question thus: “whether the
district court erred in holding that, as a matter of law, Overlook did not
constructively deny the request for a reasonable accommodation by delaying
making a decision on the request, requesting school and medical records, and
filing suit for a declaratory judgment.” Id. at 620. Put more simply, the issue
was “whether a reasonable jury could find that Overlook ‘refused’ to make the
accommodation requested.” Id. at 621.
The Court looked at three factors in analyzing the issue: (1) the extent to
which the housing provider delayed and obstructed the process of negotiation
over the requested accommodation by filing the lawsuit; (2) the state of the law
at the time the suit was filed; and (3) whether the housing provider’s delay in
ruling on the accommodation request had the effect of depriving the disabled
person of the accommodation. See id. at 621, 623. In setting forth the
principles relevant to the first factor, the Court relied heavily on the Joint
Statement issued by the Department of Housing and Urban Development
(HUD) and the Department of Justice (DOJ), entitled Reasonable
Accommodations Under The Fair Housing Act (hereafter, the “Joint Statement”).5
Id. at 621-22. Because those principles are directly relevant to the present
case, the Court quotes the Sixth Circuit at length:
[A] housing provider “has an obligation to provide prompt
responses to reasonable accommodation requests. An undue delay
in responding to a reasonable accommodation request may be
deemed to be a failure to provide a reasonable accommodation.”
Joint Statement at 11. Moreover, the Joint Statement states that a
“failure to reach an agreement on an accommodation request is in
effect a decision by the provider not to grant the requested
accommodation.” Id. at 9.
A housing provider, however, is entitled to seek information from
an allegedly disabled person in order to establish the existence of
the disability and the necessity of the accommodation. According
to the Joint Statement,
In response to a request for a reasonable
accommodation, a housing provider may request
reliable disability-related information that (1) is
necessary to verify that the person meets the Act’s
definition of disability, (2) describes the needed
accommodation, and (3) shows the relationship
between the person’s disability and the need for the
requested accommodation.
Id. at 13. This inquiry need not be highly intrusive. “In most
cases, an individual’s medical records or detailed information
about the nature of a person’s disability is not necessary . . . .” Id.
at 13–14.
Overlook, 415 F. App’x at 621-22 (emphasis added).
The web site http://www.hud.gov/offices/fheo/library/huddojstatement.pdf
(last accessed on March 12, 2014) contains the Joint Statement. Although the
Joint Statement is a policy statement rather than “an authoritative
interpretation of § 3604” that binds courts, the Joint Statement “may, of
course, have the power to persuade.” Id. at 621 n.3 (internal quotation marks
omitted). The Sixth Circuit clearly found the Joint Statement highly persuasive
because most of the principles it used to analyze the first factor came from the
Joint Statement. The Joint Statement is written as a series of questions and
answers. This Court also finds the Joint Statement highly persuasive.
5
With respect to the adequacy of the information that the Spencers
provided to support their accommodation request, the Court’s reasoning was
nuanced: “Overlook was entitled to additional information,” but “[a]t the same
time, Overlook was probably not entitled to the broad access to confidential
medical and school records it demanded.”
Id. The additional, reliable
information that Overlook was entitled to receive related to (a) verifying that
Lynsey was disabled and (b) showing the relationship between Lynsey’s
disability and the need for the requested accommodation. See id. (For ease of
reference, the Court will refer to information relating to these two categories as
qualifying-disability information and nexus information, respectively.) Because
Overlook had never received reliable information relating to either of these two
categories, Overlook was not able “to verify that a qualifying disability existed
or that the proposed accommodation was related to the disability.” Id.
The letter from Lynsey’s treating psychologist did not suffice because it
“merely stated that Lynsey was receiving ‘psychological counseling services’
and required a ‘service dog.’” Id. Information from a treating psychologist
would ordinarily be reliable. See Joint Statement at 13-14 (“A doctor or other
medical professional . . . who is in a position to know about the individual’s
disability may also provide verification of a disability.”). But the psychologist’s
letter in Overlook did not state that Lynsey suffered from a disability—let alone
identify what that disability was—and it did not show the relationship between
the assistance the dog could provide and the unspecified problems for which
Lynsey was receiving counseling. See Overlook, 415 F. App’x at 622. (Another
way to express this last point is that the letter did not show how or explain why
a service dog helped with Lynsey’s unspecified problems.) So it did not provide
any qualifying-disability and nexus information. Id.
The court also found insufficient the statements from the Spencers and
McCarthy, the president of the local fair-housing center: “[e]ven after receiving
[this information], Overlook was entitled to additional information.” Id. at 622.
Unlike the information from the treating psychologist, who provided no
qualifying-disability and nexus information, the information provided by the
Spencers and McCarthy was qualifying-disability and nexus information, and it
was specific and detailed: they informed Overlook that Lynsey suffered from
and was being treated for anxiety disorder, neurological conditions, and
emotional conditions; that these ailments impacted Lynsey’s ability to care for
herself and learn; that Scooby provided emotional support and companionship
to Lynsey; and that Scooby ameliorated the effects of these conditions by being
present and interacting with Lynsey. See id. at 618-19, 622. So the court did
not find this information inadequate because it lacked detail or specificity. See
id. at 622. Indeed, the court adopted the principles from the Joint Statement
that a housing provider’s inquiry to obtain reliable qualifying-disability and
nexus information “need not be highly intrusive” and that, “[i]n most cases, an
individual’s medical records or detailed information about the nature of a
person’s disability is not necessary.” Id. (internal quotation marks omitted)
(relying on Joint Statement at 13-14.)
And since the information was
manifestly qualifying-disability and nexus information, the Court could not
have found that the Spencers failed to provide information on these subjects to
Overlook. See id.
The only remaining basis on which the Court could reject this
information as it did would be that the information was not sufficiently reliable.
Neither the Spencers nor McCarthy were medical or dog-training professionals.
That matters because Lynsey’s alleged disability was an internal condition that
would not be readily apparent to a lay observer. So the Spencers’ and
McCarthy’s statements about the disability Lynsey allegedly suffered from and
about how and why Scooby helped ameliorate this disability were unreliable in
light of the facts. They were lay observers who were not qualified to diagnose
Lynsey or pronounce how a dog helped her.
The nature of Lynsey’s putative disability and the Joint Statement
buttresses this conclusion. Lynsey’s disability was not obvious. Unlike a
person with a physical disability, such as someone confined to a wheelchair,
Lynsey’s disability was internal.
Similarly, her need for the requested
accommodation was not readily apparent. The Joint Statement provides that
when a disability is readily apparent, the housing provider may not request
additional information about the requester’s disability. Joint Statement at 1213. So too with the requester’s disability-related need for the accommodation.
Id. That is, if it is readily apparent how the requested accommodation would
help alleviate the difficulties posed by the disability, then the provider may not
request additional information concerning the need for the requested
accommodation. Id. It is only when either the requester’s disability or the
disability-related need for the accommodation are not obvious that the provider
may request reliable qualifying-disability or nexus information. Id. And even
then, the provider’s queries are limited to precisely what is not obvious. An
example in the Joint Statement illustrates the point:
A rental applicant who uses a wheelchair advises a housing
provider that he wishes to keep an assistance dog in his unit even
though the provider has a “no pets” policy. The applicant’s
disability is readily apparent but the need for an assistance animal
is not obvious to the provider. The housing provider may ask the
applicant to provide information about the disability-related need
for the dog.
Id. at 13. This example is contained in the Joint Statement’s answer to the
following question: “[w]hat kinds of information, if any, may a housing provider
request from a person with an obvious or known disability who is requesting a
reasonable accommodation?” Joint Statement at 12. Moreover, the rule
Overlook borrowed from the Joint Statement providing that a housing provider
may request reliable qualifying-disability and nexus information, as well as
information “describ[ing] the needed accommodation,” is predicated on the
disability in question not being readily apparent, just as the disability in
Overlook was. That is so because the rule is provided in the Joint Statement’s
answer to this question: “[i]f a disability is not obvious, what kinds of
information may a housing provider request from the person with a disability
in support of the requested accommodation?” Joint Statement at 13 (emphasis
added). An accommodation can also be constructively denied due to delay in
making the decision. Overlook, 415 F. App’x at 620; Joint Statement at 9, 11.
Since neither Lynsey’s disability nor her need for a dog were readily
apparent, Overlook was entitled to seek reliable qualifying-disability and nexus
information. But even then, the Sixth Circuit reasoned that “Overlook was
probably not entitled to the broad access to confidential medical and school
records it demanded.” Overlook, 415 F. App’x at 622. Adding teeth to this
conclusion, the Sixth Circuit recognized that “[i]n some circumstances, a
housing provider that refuses to make a decision unless a requestor provides
unreasonably excessive information could be found to have constructively
denied the request by ‘stonewalling’ and short-circuiting the process.” Id.
Finding that a provider constructively denied a requested accommodation on
this basis in turn flowed from the more general principle that “injury may
result when a housing provider unreasonably delays responding to a request
for an accommodation and that such delay may amount to a denial.” Id. The
court’s discussion of this particular manner of concluding that a provider
constructively denied a requested accommodation was not theoretical. The
court concluded its analysis of the first factor—“the extent to which Overlook
delayed and obstructed the process of negotiation over the requested
accommodation by filing the lawsuit”—by noting that “were it not for additional
factors that are present here, the Spencers would have presented a jury issue
as to whether Overlook ‘denied’ their request.” Id.
Moving onto the second factor—“the state of the law at the time Overlook
filed its complaint”—the court concluded that this factor weighed in favor of
concluding that Overlook had not constructively denied the Spencers’ request
to keep Scooby. Id. at 622-24. This factor analyzes whether the state of the
law justified the housing provider in turning to the courts for clarification
rather than simply responding to the request. Id. The court focused on the
legal issue that Overlook argued was in its favor: namely, whether a companion
animal that lacks training could be a reasonable accommodation under the
law. Id. at 619, 622-23. The district court concluded that because the law on
this issue favored Overlook, “Overlook was well within its rights to get a court
ruling on whether a dog that is the subject of a reasonable accommodation can
be any companion animal.” Id. at 622 (brackets, ellipses, and internal
quotation marks omitted). In reaching this conclusion, the district court had
relied on a case that “held that ‘evidence of individual training’ is required to
show that a ‘service animal’ is a reasonable accommodation under the FHA.”
Id. (quoting Prindable v. Association of Apartment Owners of 2987 Kalakaua,
304 F. Supp.2d 1245, 1256-57 (D. Haw. 2003), aff’d on other grounds sub nom.
DuBois v. Association of Apartment Owerns of 2987 Kalakaua, 453 F.3d 1175,
1179 n.2 (9th Cir. 2005)). Other cases cut against this holding, but the Sixth
Circuit did “agree with the district court that there was at least some dispute in
the law as to whether a ‘service animal’ required training and whether it had to
do more than provide comfort and companionship to qualify as an
accommodation.” Id. at 623.
But the “fact that the law is not entirely clear concerning a requested
accommodation will not always justify a housing provider’s filing suit rather
than responding to a request.” Id. Because “[a]ccommodations are often highly
specific,” there will often be “no case law that indicates a particular
accommodation is required.” Id. So merely “claiming that the law is ‘unclear’
should not entitle the provider to delay and obstruct the accommodation
process.” Id. But in Overlook, “Overlook could point to case law indicating that
it was not required to treat Scooby”—a companion dog with no special
training—“as an accommodation.”
Id.
This “weigh[ed] against the
reasonableness of a jury finding that its actions in seeking additional
information and turning to the court for clarification constituted a denial of the
Spencers’ request.” Id.
The third factor—whether the housing provider’s delay in ruling on the
accommodation request had the effect of depriving the disabled person of the
accommodation—similarly weighed in favor of concluding that Overlook had
not constructively denied the Spencers’ request. See id. at 621, 623. Although
Overlook did not grant the Spencers a temporary exemption from its no-pets
policy, “the more important fact” was that Overlook allowed Scooby to stay with
the Spencers throughout the entire dispute. Id. at 623. And it never
attempted to evict the Spencers or punish them for keeping Scooby. Id. So
“Overlook’s actions did not deny the Spencers the benefit of Scooby’s
company.” Id.
In concluding, the court made another important point: “[a]s a general
rule, housing providers should cooperate with residents to resolve disputes
over reasonable accommodations rather than turning to the courts.” Id. But
because the second and third factors weighed against finding a constructive
denial, the court held that Overlook’s actions “did not constitute a denial of
[the Spencers’] request for an accommodation.” Id. at 624.
Now that the Court has explicated the three Overlook factors, the Court
applies them to the present case. In analyzing the first factor—namely, the
extent to which the housing provider delayed and obstructed the process of
negotiation over the requested accommodation by filing the lawsuit—Overlook
examined whether the information that the Spencers provided Overlook was
sufficient for Overlook to make a decision about the requested accommodation.
Id. at 622. The Fischers had certainly provided Sabal Palm enough information
for it to rule on (and grant) their request. It bears emphasizing that unlike
Lynsey, who had a mental and emotional disability that was not readily
apparent, Deborah Fischer had a physical disability that was readily apparent
because she was confined to a wheelchair. And the rule that Overlook adopted
from the Joint Statement about the reliable information a housing provider
may request in response to an accommodation request was predicated on the
requestor having a disability that was not readily apparent, as was the case in
Overlook. See id. at 621; Joint Statement at 13. So it is doubtful, to say the
least, that Sabal Palm was entitled to the detailed medical information it
requested concerning Deborah’s physical disability. (Sabal Palm requested
that Deborah provide it with copies of her medical records from all of her
healthcare providers who provided her with a diagnosis or treatment of the
disability for which she claimed the need to keep Sorenson. (ECF No. 82-2 at
2.))
But even setting aside that problem with Sabal Palm’s actions and
assuming that Sabal Palm was entitled to this medical information, Deborah
provided it before Sabal Palm sued. In December 2011, she gave Sabal Palm a
medical history form completed by her primary-care doctor, Leslie Herzog.
(ECF No. 82-6 at 82-6 at 2.) Herzog completed this form in January 2010 as
part of Deborah’s application for a service animal through Canine Companions
for Independence (CCI). (Id. at 3-8.) The form provides copious information,
including the following: that one purpose of the form is to determine the
applicant’s (i.e., Deborah’s) suitability for having a service dog placed with her;
that Herzog has been a physician to Deborah since October 2003; that Herzog
last examined Deborah in January 2010 on the same day Herzog completed the
form; that Deborah has multiple sclerosis; that she is confined to a wheelchair;
that she suffers from a “loss of strength, balance, [and] coordination” in all of
her extremities (including her hands); that she requires attendant care on a
regular basis for “all aspects of daily living”; and that she is a “good candidate”
for a service dog through CCI. (ECF No. 82-6 at 3-8.) This information shows
that Deborah is disabled, that she needs assistance with “all aspects of daily
living,” and that she is a good candidate for a service dog, which clearly implies
that a service dog would help with her disabilities. (See id.)
Concluding that Sorenson would help with her disabilities is buttressed
by a November 28, 2011 letter from a manager/instructor at CCI that Deborah
provided to Sabal Palm on December 2, 2011. (ECF No. 82 at 4; ECF No. 82-3
at 2; ECF No. 82-4 at 2; ECF No. 129 at 4.) The letter reads thus:
This is to certify that Sorenson, tattoo number 2009218, is a
Canine Companions for Independence assistance dog.
He is
placed with Deborah Fischer of Davie, FL. Sorenson is trained to
assist Deborah by retrieving items, opening and closing doors and
turning light switches on and off.
Deborah and Sorenson
graduated from our Southeast Regional Training Center on
November 11, 2011. If you need further information, please do not
hesitate to contact me at [phone number].
(ECF No. 82-3 at 2.) So the letter establishes that Sorenson is specially trained
to assist Deborah, and the tasks it is designed to assist her with make sense
given her disability of multiple sclerosis and the symptoms of that disability
(e.g., loss of strength and coordination in all extremities, including her arms
and hands). Based on this letter and the medical-history form that Herzog
completed, one could not reasonably doubt that Deborah was disabled, that
she needed an accommodation, and that having Sorenson as an
accommodation would help ameliorate the effects of her disability.
Yet even after receiving information that should have been dispositive,
Sabal Palm took the position in a February 2012 letter that it needed more
information. Sabal Palm contended that she had not substantiated her need
for a service dog: “you have not provided the Board with any medical records
substantiating your need for the dog.” (ECF No. 82-7 at 2.) So later in
February 2012, Deborah gave them even more medical information
substantiating her need for a dog. (ECF No. 82-8 at 2-11.)
All of these additional medical records tell a consistent story: Deborah’s
multiple sclerosis renders her severely disabled and requires that she have the
assistance of others to maximize her functional status. The descriptions of the
symptoms of her disability in these documents make it clear that a service dog
trained to help retrieve items, open doors, and turn light switches on and off
would help ameliorate the effects of her disability.
A “treating source neurological questionnaire” completed by Herzog in
July 2009 stated that Deborah had multiple sclerosis with the following
symptoms: decreased grip strength; decreased ability to perform fine
manipulation, decreased ability to perform gross manipulation; gait
disturbance; sensory loss; motor loss; spasticity; severe fatigue; malaise; and
substantial muscle weakness on repetitive activity. (ECF 82-8 at 11.) Herzog
elaborated: “Pt. [patient] with progressive exacerbations of condition—requires
assistance of another with all ADLs [Activities of Daily Living] as well as with
any transferring from wheelchair to another site[.] Pt. [patient] has significant
loss of function of upper and lower extremities, muscle control, [and] strength.
She suffers from fatigue.” (Id.) The form also indicates that Deborah is
wheelchair bound: “Pt [patient] is unable to ambulate or stand alone or with a
handheld device. She requires the assistance of another individual to transfer
from her wheelchair/scooter.” (Id.) Deborah’s grip strength was rated as 2/5,
and her lower-extremity strength as 1/5. (Id.)
A “home health certification and place of care” form signed by Herzog in
July 2011 diagnoses Deborah with multiple sclerosis, wheelchair dependence,
and debility (feebleness, weakness, or loss of strength). (Id. at 3.) It further
states that “patient cannot safely leave home without assistance. Due to
[patient’s] health status, [patient] is homebound, and therefore requires
nursing care in the home.
Home healthcare is medically necessary to
maximize [patient’s] functional status.” (Id.)
The most recent medical record is a “group disability insurance attending
physician’s statement” completed by Herzog in August 2011. (Id. at 5-7.)
Deborah is diagnosed with multiple sclerosis, debility, and wheelchair
dependence.6 (Id. at 5.) Deborah has “neurological deficits of extremities,”
cannot ambulate, cannot drive, “will not be able to ever return to [the]
workforce,” and “needs assistance [with] ADLs [activities of daily living].” (Id. at
6.) The job category that best describes Deborah’s functional status is
“sedentary,” which means that she can lift, at best, “negligible weight.”7 (Id. at
7.)
This information conclusively demonstrates that, contrary to Sabal
Palm’s contention, Deborah had provided Sabal Palm with medical records
substantiating her need for a dog that could retrieve items, open doors, and
The form states that Deborah was first diagnosed with multiple sclerosis in
2001 and that the date she experienced a significant loss of function was July
2009. (Id. at 5-6.)
7 Because there was no box below “sedentary” on the form, Deborah’s
limitations may exceed those described in the “sedentary” box. Hence the
conclusion that she can lift negligible weight at best.
6
turn light switches on and off.8 She was disabled, needed assistance with all
activities of daily living, and had specifically shown that her ability to grab and
manipulate items—abilities that are necessary to retrieve items, open doors,
and turn light switches on and off—were severely impacted by her disability.
Moreover, her being confined to a wheelchair would also sometimes prevent her
from retrieving items (for example, items on the floor). And since she had
provided evidence that Sorenson’s training was specifically designed to help
with these activities, she had amply established her disability-related need for
Sorenson.
Given the dispositive nature of the information that it had received, Sabal
Palm’s demands for even more information were unreasonable. As Overlook
concluded, an inquiry seeking qualifying-disability information, nexus
information, or information describing the needed accommodation, “need not
be highly intrusive.” Sabal Palm had already received detailed—and in the case
of the medical records, confidential—information addressing these three points.
Asking for even more medical records providing nexus information was clearly
“highly intrusive,” and the intrusion was not necessary. So the circumstances
of the present case place it squarely within the following principle formulated
by Overlook: “[i]n some circumstances, a housing provider that refuses to make
a decision unless a requestor provides unreasonably excessive information
could be found to have constructively denied the request by ‘stonewalling’ and
short-circuiting the process.” Overlook, 415 F. App’x at 622. In sum, the first
factor strongly weighs in favor of concluding that the Fischers have plausibly
alleged that Sabal Palm constructively denied their requested accommodation.
The second Overlook factor—the state of the law at the time the suit was
filed—also weighs in favor of concluding that the Fischer’s have alleged a
plausible refusal-to-accommodate claim. This factor analyzes whether the
state of the law justified the housing provider in turning to the courts for
clarification rather than simply responding to the request. Id. at 622-24.
Based on Sabal Palm’s Complaint and a letter from Trapani to the Fischers
sent just five days after Sabal Palm sued, Sabal Palm believed at the time it
filed suit that the law showed the following: that Sabal Palm was entitled to all
of the medical records it requested in order to properly evaluate the
Again, this analysis proceeds from the premise that Sabal Palm was entitled
to obtain medical records substantiating Deborah’s disability—a premise that
is false because her disability was readily apparent. See Joint Statement at 1214. Sabal Palm’s position that it needed records to verify that a service dog
would help with her disability is plausible, see id. at 13, but the records it
received before suing were more than sufficient for it to verify that Deborah
needed Sorenson.
8
accommodation; that it was within its rights to deny the accommodation
because the Fischers failed to provide all the requested medical records; and
that the records produced do not show that a dog in excess of 20 pounds is a
reasonable or necessary accommodation. (See ECF No. 1 at ¶¶ 24-25, 28, 32,
36-37; ECF No. 82-9 at 2.9) Because Sabal Palm is mistaken about the law,
this factor does not favor Sabal Palm. The Court analyzes each of Sabal Palm’s
beliefs about the law in turn.
Sabal Palm’s first two beliefs—that it was entitled to all of the medical
records it requested and that it was within its rights to deny Deborah the dog
because she failed to provide all the requested medical records—must be
reframed to properly analyze them. Because Deborah had provided Sabal Palm
with medical and dog-training records before Sabal Palm sued, the question
becomes whether the law supports Sabal Palm’s contention that it was entitled
to additional records and that it could deny her request because she failed to
provide these additional records. As discussed above, the records Deborah
provided were more than sufficient to verify that she had a disability that lay
observers could see with their own eyes,10 that some of the symptoms
associated with her disability would make it difficult for her to pick up and
manipulate items, and that Sorenson’s training (retrieving items, opening and
closing doors, and turning light switches on or off) would help alleviate some of
the negative effects of her symptoms. Because Sabal Palm already had enough
qualifying-disability and nexus information, Sabal Palm’s request for additional
records was excessive and unnecessary. The law is squarely against Sabal
Palm on these beliefs.
So too with Sabal Palm’s final belief—namely, that under the governing
law, the records produced do not show that a dog in excess of 20 pounds is a
Although Sabal Palm’s Amended Complaint (ECF No. 129) was filed well after
it sued, the Amended Complaint advances the same beliefs about the state of
the law. (Compare ECF No. 129 at ¶¶ 21-22, 25, 29, 33-34, with ECF No. 1 at
¶¶ 24-25, 28, 32, 36-37.)
10 Because Deborah’s disability was readily apparent, Sabal Palm was not
entitled to ask for medical records verifying her disability. Joint Statement at
12-14. A contrary result would be absurd. For example, a housing provider
should not be able to demand that a blind person or a person confined to a
wheelchair produce medical records supporting their disability. Id. Because
Deborah’s disability-related need for a dog was not readily apparent Sabal Palm
was entitled to ask for information substantiating her need. Joint Statement at
13-14. But as discussed above, Deborah provided enough information to show
the relationship between her disability and the need for a dog with Sorenson’s
specific training.
9
reasonable or necessary accommodation.
The Court will analyze
reasonableness and necessity in turn.
An accommodation is not reasonable “if [1] it would impose an undue
financial and administrative burden on the housing provider or [2] it would
fundamentally alter the nature of the provider’s operations.” Joint Statement
at 7; accord Schwarz v. City of Treasure Island, 544 F.3d 1201, 1220 (11th Cir.
2008) (determining that an accommodation is unreasonable “if it either [1]
imposes undue financial and administrative burdens on a grantee or [2]
requires a fundamental alteration in the nature of the program” (internal
quotation marks omitted) (brackets in original)). Because Sabal Palm admits
that it is “undisputed that [Deborah’s] request for an accommodation would not
involve an extraordinary expense on the part of [Sabal Palm],” the Court need
consider only whether allowing Deborah to keep Sorenson would
fundamentally alter the nature of Sabal Palm’s program. (ECF No. 129 at 2.)
“A fundamental alteration is a modification that alters the essential nature of a
provider’s operations.”
Joint Statement at 8 (internal quotation marks
omitted); accord Schwarz, 544 at 1220 (“A proposed accommodation amounts
to a ‘fundamental alteration’ if it would eliminate an essential aspect of the
relevant activity.” Sabal Palm is a condominium association. Its raison d’être
is to provide housing. Allowing a disabled resident to keep a service dog would
not fundamentally alter Sabal Palm because Sabal Palm would still be able to
offer housing.
The governing regulation buttresses this conclusion. The companion
regulation to 42 U.S.C. § 3604(f)(3)(B) is 24 C.F.R. § 100.24(a), and this
regulation specifically provides that it is unlawful for a housing provider with a
no-pets policy to refuse to permit a blind person to live in a dwelling unit with a
seeing-eye dog. 24 C.F.R. § 100.24(b)(1). Because an essential element of both
§ 3604(f)(3)(B) and § 100.24(a) is that the accommodation be reasonable, it
follows that allowing a disabled person to keep a dog in a housing unit with a
no-pets policy is a reasonable accommodation.
Necessity cuts against Sabal Palm too. A housing provider is required to
make a reasonable accommodation “only if it ‘may be necessary to afford [a
disabled resident of Sabal Palm an] equal opportunity to use and enjoy a
dwelling.’” Schwarz, 544 F.3d at 1225 (quoting 42 U.S.C. § 3604(f)(3)(B)). “To
show that a requested accommodation may be necessary, there must be an
identifiable relationship, or nexus, between the requested accommodation and
the individual’s disability.” Joint Statement at 6.
Deborah has sufficiently demonstrated that Sorenson may be necessary
for her to have an equal opportunity to use and enjoy her dwelling. The
symptoms of her disability make it difficult for her to grab and manipulate
items and they require that she have assistance in all activities of her daily life.
So it follows that a service dog trained to retrieve items, open and close doors,
and turn light switches on and off would help alleviate some of the negative
effects of her disability. Because Deborah provided medical and dog-training
records substantiating her need for a service dog with Sorenson’s training, she
has demonstrated necessity.
One additional argument under necessity deserves attention. In addition
to arguing that a service dog is not a reasonable or necessary accommodation,
Sabal Palm also appears to argue that even if a dog is reasonable or necessary
for Deborah, a dog over 20 pounds is not reasonable or necessary. (See ECF
No. 129 at 6-7; ECF 82-9 at 2.) This argument is unpersuasive. A dog under
20 pounds is a small dog. So given the height of the average door handle and
light switch, a small dog will have a harder time opening and closing doors and
turning light switches on or off. And there will be some items a small dog
cannot retrieve because of the item’s height that a bigger dog would be able to
retrieve. Moreover, given the height of a person in a power wheelchair, a
smaller dog will have a harder time retrieving items effectively for the disabled
person.
This is not just commonsense—though it most certainly is that. Deborah
also wrote in an email to Trapani that, “regarding the size of my dog—the dog is
matched to the height of my chair, which enables him to assist me better with
his jobs, i.e. picking up items I have dropped.” (ECF No. 82-6 at 2.) She also
attached a picture of her in her power wheelchair with Sorenson. (ECF No. 824 at 3.) In the picture, the dog’s size fits well with the height of her in the
wheelchair. (See id.)
Deborah’s statement regarding Sorenson being sized appropriately for
her wheelchair is credible. It accords with common sense. And the picture she
provided to Sabal Palm supports her statement.
Sabal Palm’s implied argument is that even if a dog is reasonable or
necessary for Deborah, a dog 20 pounds or under would suffice is akin to an
argument that an alternative accommodation (here, a dog under 20 pounds),
would be equally effective in meeting Deborah’s disability-related needs as a
dog over 20 pounds.
The Joint Statement’s comments on alternative
accommodations proposed by the housing provider is highly persuasive and
useful in evaluating this argument.
There may be instances where a provider believes that, while the
accommodation requested by an individual is reasonable, there is
an alternative accommodation that would be equally effective in
meeting the individual’s disability-related needs.
In such a
circumstance, the provider should discuss with the individual if
she is willing to accept the altnerative accommodation. However,
providers should be aware that persons with disabilities typically
have the most accurate knowledge about the functional limitations
posed by their disability, and an individual is not obligated to accept
an alternative accommodation suggested by the provider if she
believes it will not meet her needs and her preferred accommodation
is reasonable.
Joint Statement at 8 (emphasis added). Since a dog over 20 pounds is a
reasonable accommodation, Deborah’s (commonsense) belief that a dog over 20
pounds—in particular, a dog of Sorenson’s size—is better able to assist her is
entitled to weight. The letter from the dog-training professional at CCI
supports this conclusion as well. (See ECF No. 82-3 at 2.) The letter shows
that in that person’s professional judgment, Sorenson will assist Deborah. (Id.)
In sum, the law at the time Sabal Palm sued is in her favor. The second
Overlook factor strongly weighs in favor of concluding that Sabal Palm
constructively denied the Fischers’ requested accommodation.
The third Overlook factor—whether the housing provider’s delay in ruling
on the accommodation request had the effect of depriving the disabled person
of the accommodation—is the only factor that favors Sabal Palm. In its first
communication, Sabal Palm told the Fischers that they could temporarily keep
Sorenson while Sabal Palm evaluated their accommodation request. (ECF No.
82-2 at 3.) Similarly, in the April 2012 letter just a few days after Sabal Palm
brought the declaratory-judgment action, Sabal Palm told the Fischers that
they could temporarily keep Sorenson while the lawsuit is pending. (ECF No.
82-9 at 3.) But because the other two factors strongly weigh in favor of
concluding that Counter Defendants constructively denied the Fischers’
accommodation request, the Court holds that the Fischers have plausibly
alleged a refusal-to-accommodate claim.
E.
The Fischers’ § 3604(c) claim
The Fischers allege that that rules adopted by Sabal Palm in December
2011 discriminate against disabled persons and thus violate 42 U.S.C.
§ 3604(c). (ECF 82 at 17-19.) All Counter Defendants argue that this claim
should be dismissed because § 3604(c) applies to notices or statements made
in connection with the sale or rental of a dwelling, a condition that is not met
in this case. Trapani and Sabal Palm also argue that the claim is moot.
Because mootness is jurisdictional, the Court considers that argument first.
1.
Is the § 3604(c) claim moot?
Trapani and Sabal Palm argue that this claim is moot because in
November 2012 Sabal Palm amended the rule setting forth the procedure for
seeking an exemption to the no-pets policy so that this procedure now applies
to anyone seeking an exemption, not just to disabled persons. Their argument
is unpersuasive.11
“To qualify as a case fit for federal-court adjudication, ‘an actual
controversy must be extant at all states of review, not merely at the time the
complaint is filed.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). “Mootness is
jurisdictional,” and therefore must be decided as a threshold matter and
requires dismissal if the court finds its jurisdiction lacking under this doctrine.
Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001). The burden of
establishing mootness rests with the party seeking dismissal. See County of
L.A. v. Davis, 440 U.S. 625, 631 (1979). “A case is moot when it no longer
presents a live controversy with respect to which the court can give meaningful
relief.” Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir. 1993).
In their §3604(c) claim, the Fischers seek not just injunctive relief, but
also their attorney fees and compensatory and punitive damages.
The
monetary relief they seek cannot be mooted by any change in policy by Sabal
Palm, including a change in Sabal Palm’s governing rules and regulations.
Housing Opportunities Project for Excellence, Inc. v. Wedgewood Condominium
Association, Inc., 2012 WL 4193969, at *6 (S.D. Fla. Sept. 19, 2012) (Scola, J.)
(citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 371 (1982)). That’s
because amending the rules did not give the Fischers the monetary
compensation they seek in their § 3604(c) claim. Id.; cf. Jews for Jesus, Inc. v.
Hillsborough County Aviation Authority, 162 F.3d 627, 629 (11th Cir. 1998)(“In
this case, the airport's change of policy has already given Jews for Jesus the
relief they seek—the ability to distribute literature at the airport—and there is
That was not the only change Sabal Palm made to its rules about pets. It
also peppered the rules on the procedures for seeking an exemption from the
no-pets policy, the procedures for processing requests for an exemption, and
the procedures for keeping pets (including pets allowed based on an exemption)
with phrases like “unless otherwise required by law” or an equivalent. For
example, the rules governing keeping pets—which includes a rule prohibiting
pets in Sabal Palm’s common areas—apply “unless otherwise prohibited by
law.” (ECF No. 96-1 at 3-4.) As discussed in more detail below, the FHA
clearly prohibits such a rule for a service animal that is a reasonable and
necessary accommodation to a disabled person. Sabal Palm does not argue
that these other changes contributed to mooting the Fischers’ claim until their
reply brief. That is too late for the Court to consider that argument.
11
therefore no meaningful relief left for the court to give.”). The 3604(c) claim is
therefore not moot.
But what about the injunctive relief sought under this claim? Is that
relief mooted by Sabal Palm’s amending the rules? There is a threshold
question: must a court separately analyze whether injunctive relief under a
particular claim can become moot when the plaintiff seeks monetary relief
under that same claim. Assuming without deciding that a court must, the
injunctive relief sought is still not moot. The injunctive relief sought by the
Fischers is much broader than simply ordering Sabal Palm to apply the
procedure for a pet exemption to anyone, disabled or not, who asks for it. So
the change in the rule does not give the Fischers all the injunctive relief they
seek. Moreover, the Fischers challenge not just the procedure for seeking an
exemption, but also the procedures for processing exemption requests and for
keeping pets. (ECF No. 82 at 8-12, 17-19.) So the rule change Sabal Palm
points to does not even embrace all the rules that the Fischers challenge.
Besides, the small change Sabal Palm points to does not even satisfy the
the following three-factor test that the Eleventh Circuit uses to decide whether
a defendant’s voluntarily ceasing the challenged conduct moots a plaintiff’s
claim: “(1) whether the challenged conduct was isolated or unintentional, as
opposed to a continuing and deliberate practice; (2) whether the defendant's
cessation of the offending conduct was motivated by a genuine change of heart
or timed to anticipate suit; and (3) whether, in ceasing the conduct, the
defendant has acknowledged liability.” Sheely v. MRI Radiology Network, P.A.,
505 F.3d 1173, 1184 (11th Cir. 2007).
Analyzing Sabal’s Palms December 2011 rules and the amended
November 2012 rules on pets in common areas nicely illustrates why the three
factors weigh against mootness. Under the December 2011 rules, pets are not
allowed in any common areas and they are allowed in catwalks or in elevators
only if they are carried. (ECF No. 82-10 at 7.) That rule is plainly unlawful as
applied to any pet that has been allowed to a disabled person as an
accommodation under the FHA (hereafter, “an accommodation animal”). The
governing regulation makes it “unlawful . . . to refuse to make reasonable
accommodations in rules . . . 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. § 100.24(a). The
regulation defines public and common-use areas broadly in a manner that
would include the common areas at Sabal Palm and the elevators and
catwalks. See 24 C.F.R. § 100.21. The November 2012 rules have this same
rule; the only difference is that Sabal Palm now provides that this rule must be
followed “unless otherwise prohibited by law.” (ECF 96-1 at 3.)
But the terse phrase—unless otherwise prohibited by law—is not a
meaningful change and cannot be used to insulate Sabal Palm from liability. A
contrary conclusion leads to absurd results. For example, what if Sabal Palm
had a rule about bathrooms in common areas providing that, unless otherwise
prohibited by law, bathroom X was for whites only and bathroom Y, for
nonwhites? Just as that rule would be foreclosed by governing law, Sabal
Palm’s November 2012 rule is foreclosed by the FHA. That Sabal Palm’s
amended rules still contain an unlawful rule weighs in favor of concluding that
the challenged conduct is a continuing and deliberate rather than isolated or
unintentional. It also shows that Sabal Palm has not ceased the challenged
conduct. Moreover, adding the phrase unless otherwise prohibited by law to
this rule without making other changes evinces a desire to avoid liability rather
than a genuine change of heart. Sabal Palm is keeping the gist of the rules the
Fischers challenge, making changes that amount to no more than window
dressing.12 So the three Sheely factors show that the Fischers’ injunctive relief
is not moot.13
2.
Is the § 3604(c) claim valid?
The Fischers contend that the December 2011 rules promulgated by
Sabal Palm relating to pets discriminated against disabled persons and thus
violated 42 U.S.C. § 3604(c). That section provides in relevant part that it is
unlawful to “make, print, or publish . . . any notice, statement, or
advertisement with respect to the sale or rental of a dwelling that indicates any
Analyzing the December 2011 and November 2012 versions of many other
rules leads to the same conclusion. For example, consider the 2011 and 2012
versions of the rule requiring that a resident who owns a pet—including a
disabled resident who has an animal as an accommodation under the FHA—
carry liability insurance to insure against the chance that the animal injures
someone. (ECF Nos. 82-10 at 8; 95-1 at 4.) This rule violates the FHA with
respect to an animal that a disabled person has as an accommodation. See
Joint Statement at 9 (persuasively explaining that a housing provider cannot
condition a disabled person’s reasonable and necessary accommodation on
obtaining liability insurance). That the 2012 version of the rule applies unless
otherwise prohibited by law does not fix the illegality for the reasons already
explained.
13 In one sentence, Sabal Palm and Trapani argue that the injunctive relief
sought by the Fischers is not provided for under § 3604(c). (ECF NO. 95 at 13;
ECF No. 96 at 13.) The Court declines to accept such an unsupported
argument. The relief available to private litigants for violations of the FHA is
outlined in 42 U.S.C. § 3613(c); § 3604 just specifies conduct that violates the
FHA. And the relief authorized by § 3613(c) is phrased broadly.
12
preference, limitation, or discrimination based on . . . handicap.” Counter
Defendants contend that this claim is invalid because the December 2011 rules
were not connected with a sale or rental of the Fischers’ dwelling. The Court
agrees and dismisses this claim with prejudice.
Numerous courts have held that a § 3604(c) claim requires that the
allegedly discriminatory statement be made in connection with the sale or
rental of a dwelling. E.g. White v. United States Department of Housing and
Urban Development, 475 F.3d 898, 904 (7th Cir. 2007); Matarese v. Archstone
Pentagon City, 795 F. Supp. 2d 402, 441 (E.D. Va. 2011) (holding that
§ 3604(c) “extends to all written or oral statements made by a person engaged
in the sale or rental of a dwelling” (emphasis added)), rev’d in part on other
grounds sub nom. Matarese v. Archstone Communities, LLC, 468 F. App’x 283
(4th Cir. 2012); Michigan Protection and Advocacy Service, Inc. v. Babin, 799 F.
Supp. 695, 716 (E.D. Mich. 1992) (holding that § 3604(c) governs “only the
discriminatory comments of a person selling/renting his dwelling, or an agent
acting on behalf of that person”); Gourlay v. Forest Lake Estates Civic
Assocation of Part Richey, Inc., 276 F. Supp.2d 1222, 1234 (M.D. Fla. 2003)
(holding that the § 3604(c)’s plain language “indicates that to create liability
either a sale or rental of a dwelling needs to occur or at least be potentially
occurring”), vacated due to settlement, 2003 WL 22149660, at *1 (M.D. Fla.
September 16, 2003). Because this interpretation accords with the plain
language of the statute and its accompanying regulation, the Court adopts it.
See 42 U.S.C. § 3604(c); 24 C.F.R. § 100.75(b) (“The prohibition in this section
shall apply to all written or oral notices or statements by a person engaged in
the sale or rental of a dwelling.” (Emphasis added.)).
There are no factual allegations in the Fischers’ Amended Counterclaim
that the December 2011 rules (or the November 2012 rules, for that matter)
were made in connection with the sale or rental of a dwelling. (See ECF No.
82.) The Amended Counterclaim similarly fails to allege facts that the Fischers’
3604(c) claim arises from the sale or rental of a dwelling. (Id. at 8-12, 17-18.)
Moreover, the Fischers’ allege that they own and currently live in a Sabal Palm
condominium, and Deborah’s December 2011 email to Trapani states, “I have
lived here for 10 years.” (ECF No. 82-4 at 2; accord ECF No. 82 at 2.) There
are no allegations that the Fischers are attempting to sell or rent their dwelling.
(See ECF No. 82.) For these reasons, the 3604(c) claim is not plausible and is
dismissed with prejudice.
The dismissal is with prejudice because it is clear that the Fischers
cannot in good faith allege facts fixing the fatal defects noted above. Counter
Defendants’ motions to dismiss pointed out that the Fischers’ allegations did
not support a 3604(c) claim for the reasons discussed above, and these
motions cited case law supporting their argument. (See ECF Nos. 89, 95, 96.)
Moreover, the Fischers’ responses to these motions cited no case law
supporting their position that the 3604(c) claim was valid, nor did they explain
how their 3604(c) claim was connected to the sale or rental of a dwelling. (See
ECF Nos. 100, 107, 108.) The adverse case law cited by Counter Defendants
and the statute’s plain language, coupled with the Fischers’ inability to cite any
case in support of their claim or to explain how their claim was connected to a
sale or rental, should have made the Fischers aware that their claim as pled
was invalid. And yet the Fischers waited for months to move to amend their
Amended Counterclaim in order to try to fix these problems.14 (ECF No. 214.)
In fact, the Fischers’ motion to amend came after the close of fact discovery,
after both Sabal Palm and Trapani had moved for summary judgment, and just
days before the dispositive-motion deadline. (Compare ECF Nos. 201, 202, and
214, with ECF No. 193.) And even then, the Fischers did not try to allege facts
connecting their 3604(c) claim to a sale or rental; they instead switched legal
theories all together, arguing that the December 2011 rules violated § 3604(f)(2)
rather than § 3604(c). (ECF No. 214-1 at 17.) Because the Court denies their
motion to amend the Amended Counterclaim (ECF No. 214), the Court also
dismisses the 3604(c) claim with prejudice.
There are several reasons to deny the Fischers’ motion to amend (ECF
No. 214). Given the multiple times that the Fischers were notified that the
3604(c) claim was invalid, and given the long delay in the Fischers’ moving to
amend to fix this claim, the Fischers’ asserted excuse—namely, that they
simply mistakenly cited to the wrong section of 3604—beggars belief. If the
Fischers merely made a scrivener’s error as they claim, then they should have
moved to amend much sooner than they did. The Court concludes that the
proposed amendment is the result of undue delay or dilatory motive, and
perhaps even bad faith. Moreover, since the motion to amend came after the
close of fact discovery, if the Court were to grant the motion, it would have to
reopen fact discovery out of fairness to Counter Defendants. That would
further delay a case that should not have been brought in the first place.
Failing to reopen discovery would prejudice Counter Defendants because they
would not be able to conduct discovery on this new legal theory. That the
motion to amend came after two parties moved for summary judgment is just
icing on the cake. For all these reasons, the Court is well within its discretion
to deny the motion to amend.
A motion for sanctions filed months before the Fischers moved to amend
their Amended Counterclaim similarly notified that Fischers that the 3604(c)
claim was invalid. (ECF No. 143.)
14
Finally, the Court notes that dismissing the Fischers’ 3604(c) claim with
prejudice does not foreclose them from obtaining meaningful relief. Under the
declaratory-judgment action, the Court is empowered to decide (1) whether the
Fischers are entitled to keep Sorenson as an accommodation under the FHA
and (2) whether Sabal Palm is entitled to all of the records it requested. This
necessarily implies the power to decide the scope of both the accommodation
and the records that may legitimately be requested. In other words, the Court
can decide under the declaratory-judgment action the records that Sabal Palm
can legitimately demand and the conditions under which the Fischers may
keep Sorenson.
If the Fischers were to move for summary judgment on the declaratoryjudgment action and argue, for example, that they are entitled to keep
Sorenson, then the Court could decide based on clear law that Deborah is
entitled to keep Sorenson so that she can enjoy not only her dwelling, but the
public- and common-use areas. See 24 C.F.R. § 100.204(a) (rendering it
unlawful to deny reasonable accommodations that are necessary to enjoy the
dwelling unit and public- and common-use areas). Such a determination
would similarly render void the rule that Deborah must carry Sorenson in
catwalks and elevators because that rule would deprive her of equal enjoyment
and use of these common-use areas. The same would go for the rule requiring
that a resident carry liability insurance to insure against the chance that the
service animal injures someone. See Joint Statement at 9 (persuasively
explaining that a housing provider cannot condition a disabled person’s
reasonable and necessary accommodation on obtaining liability insurance).
This principle generalizes. So the Court’s conclusion that the Fischers
provided more than enough information for Sabal Palm to grant their requested
accommodation has obvious implications for the rules establishing the
procedures for seeking and processing accommodations to the no-pet policy
based on disability. So too, the Court’s conclusions that in some cases, a
housing provider is not entitled to any information about the person’s disability
or need for an accommodation, and that even when the provider is entitled to
seek information, the inquiry need not be highly intrusive.
F.
The § 3617 retaliation claim
The Fischers allege that Counter Defendants violated 42 U.S.C. § 3617,15
the FHA’s retaliation provision, by instituting the declaratory-judgment action:
This section makes it “unlawful to coerce, intimidate, threaten, or interfere
with any person in the exercise or enjoyment of . . . any right granted or
protected by section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617.
15
Counter Defendants “decided to use litigation in this court to coerce,
intimidate, threaten, or interfere with the [Fischers’] enjoyment of their fair
housing rights.” (ECF No. 82 at 21.) Sabal Palm argues that its First
Amendment right to petition the government renders it immune from liability
for suing the Fischers. (ECF No. 96 at 17-18.) Because Sabal Palm is correct,
the Court dismisses this claim with prejudice.
The First Amendment to the United States Constitution guarantees the
right to “petition the Government for a redress of grievances.” To give this
principle life in the antitrust context, the Supreme Court developed the NoerrPennington doctrine, under which those who petition the executive or legislative
branches of government for redress “are generally immune from antitrust
liability.”
Professional Real Estate Investors, Inc. v. Columbia Pictures
Industries, Inc., 508 U.S. 49, 56-57 (1993); accord Eastern Railroad Presidents
Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136 (1961) (“The Sherman
Act does not prohibit . . . persons from associating together in an attempt to
persuade the legislature or the executive to take particular action with respect
to a law that would produce a restraint or a monopoly.”); Mine Workers v.
Pennington, 381 U.S. 657, 670 (1965) (“Joint efforts to influence public officials
do not violate the antitrust laws even though intended to eliminate
competition.”). “The Court has further established that the right to petition
extends to all departments of the government, including . . . the courts.” White
v. Lee, 227 F.3d 1214, 1231 (9th Cir. 2000) (citing California Motor Transport
Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972)).
Because the immunity under the Noerr-Pennington doctrine is based on
the First Amendment right to petition—a right that is not limited to petitions
involving antitrust issues—and because this right extends to petitions filed in
the courts (i.e., lawsuits), this immunity also applies in other contexts,
including to lawsuits that allegedly violate § 3617 of the FHA. Id. at 1229-32,
1237. But this immunity is not absolute: if a lawsuit is a “sham,” then it is not
protected by the First Amendment. Id. at 1231-32. The party challenging
immunity bears the burden to show that the lawsuit is a sham. Atico
International USA, Inc. v. Luv N’ Care, Ltd., 2009 WL 2589148, at *3 (S.D. Fla.
August 19, 2009) (Cohn, J.) (internal quotation marks omitted).
The Supreme Court developed a two-part test to determine if a lawsuit is
a sham. The first part is objective: “the lawsuit must be objectively baseless in
the sense that no reasonable litigant could realistically expect success on the
merits.” Professional Real Estate, 508 U.S. at 60. The second part, subjective:
did the party bring the suit based on the party’s belief that the process of the
suit itself would further an illegal objective (for example, its belief that the costs
of litigation would harm a competitor) rather than its belief that the potential
outcome of the suit (i.e., judicial relief) made suing worthwhile. See id. at 5657, 60-61; White, 227 F.3d at 1232. In the context of the Fischers’ claim that
Sabal Palm’s lawsuit violated § 3617, the lawsuit is not a sham unless “(1) no
reasonable litigant could have realistically expected success on the merits, and
(2) [Sabal Palm] filed the suit for the purpose of coercing, intimidating,
threatening, or interfering with [the Fischers’] exercise of rights protected by
the FHA.” White, 227 F.3d at 1232.
Demonstrating that a lawsuit is objectively baseless is difficult. “The fact
that a litigant loses his case does not show that his lawsuit was objectively
baseless for purposes of Noerr-Pennington immunity.” White, 227 F.3d at 1232
(italics added). A “court must resist the understandable temptation to engage
in post hoc reasoning by concluding that an ultimately unsuccessful action
must have been unreasonable or without foundation.
The court must
remember that even when the law or the facts appear questionable or
unfavorable at the outset, a party may have an entirely reasonable ground for
bringing suit.” Professional Real Estate, 508 U.S. at 60 n.5 (brackets, internal
citations, and internal quotation marks omitted). Professional Real Estate itself
concluded that a copyright suit defeated on summary judgment was not a
sham. Id. at 64-65. In concluding that a losing copyright suit was not a sham,
the Court drew from Rule 11 of the Federal Rules of Civil Procedure: “at the
very least,” the losing copyright suit “was based on an ‘objectively good faith
argument for the extension, modification, or reversal of existing law. . . . Even
in the absence of supporting authority, [the losing party] would have been
entitled to press a novel copyright claim so long as a similarly situated
reasonable litigant could have perceived some likelihood of success.’” Id. at 65
(quoting Fed. R. Civ. P. 11). As the Ninth Circuit cautioned, “We do not lightly
conclude in any Noerr-Pennington case that the litigation in question is
objectively baseless, as doing so would leave that action without the ordinary
protections of the First Amendment, a result we would reach only with great
reluctance.” White, 227 F.3d at 1232.
Because the Fischers cannot make the difficult showing that Sabal
Palm’s suit is objectively baseless, the lawsuit is not a sham and Sabal Palm is
immune from liability. To be sure, the Court’s reasoning analyzing the refusalto-accommodate claim shows that, based on the information it had before it
sued, Sabal Palm should have allowed Deborah to have Sorenson. But losing
is not enough for a suit to be objectively baseless.
Because Sabal Palm had not been presented with a statement from a
medical professional expressly stating that Deborah needed a service dog as an
accommodation to live in her apartment, Sabal Palm at least had a glimmer of
hope that it could succeed. To be sure, the Joint Statement counsels against
such an express statement being necessary. And the records Sabal Palm had
all but screamed that Deborah would benefit from a service dog with
Sorenson’s training. Moreover, the Court is unaware of a case holding that for
a person with a readily apparent disability, there needs to be such an express
statement when the evidence matches the obvious effects of the disabled
person’s symptoms with the dog’s training. (For example, it is obvious that
someone with severe fatigue, anemic grip strength and extremely poor motor
coordination whose functional abilities include lift negligible weight may need
help retrieving items.) But in some cases, there were such express statements
and the courts held that the service dog was needed based on such express
statements. For example, in Bhogaita v. Altamonte Heights Condominium
Assocation, Inc., Bhogaita had letters from his doctor stating that he suffered
from Post Traumatic Stress Disorder, that he had a therapeutic relationship
with his dog, and that without his dog, he would be unable to work. 2012 WL
10511 at 4 (M.D. Fla. January 3, 2012). Sabal Palm could at least argue with a
straight face that what was sufficient in this case was actually required in
other cases and that the information it had did not sufficiently substantiate
Deborah’s need for Sorenson.
The Fischers’ retaliation claim under § 3617 thus fails as a matter of law.
The First Amendment renders Counter Defendants immune to this claim. The
Court dismisses this claim with prejudice because the declaratory-judgment
lawsuit cannot support a retaliation claim, no matter what facts the Fischers
allege.16
G.
Punitive Damages
Because the refusal-to-accommodate claim is the only surviving claim of
the Amended Counterclaim, the Court restricts its analysis to the request for
punitive damages under that claim. Counter Defendants contend that the
Fischers’ allegations are insufficient to support an award of punitive damages
and therefore move to strike this relief. (ECF Nos. 90; 95 at 19; 96 at 18-19.)
Counter Defendants’ argument is unpersuasive.
Punitive damages are available under the FHA for a refusal-toaccommodate claim. 42 U.S.C. § 3613(c) (providing that punitive damages may
be awarded if a court “finds that a discriminatory housing practice has
occurred or is about to occur); 42 U.S.C. § 3602 f providing that an act that
Silvergold did not advance an immunity argument based on the First
Amendment. Only Sabal Palm and Trapani did. But because Silvergold has
the same rights as they do under the First Amendment, the Fischers’
retaliation claim must be dismissed against him as well.
16
violates § 3604 f 3 B is a discriminatory housing practice). “The Eleventh
Circuit has not discussed when punitive damages become available in Fair
Housing Act cases.” United States v. Gumbaytay, 757 F. Supp. 2d 1142, 1150
(M.D. Ala. 2011). But many other circuits have, and they use the standard set
forth in Kolstad v. American Dental Association, 527 U.S. 526, 533-39 (1999),
which analyzed when punitive damages are available in a Title VII of the Civil
Rights Act case under 42 U.S.C. § 1981a(b)(1). Id. at 1151 (collecting circuit
cases applying the Kolstad standard to punitive damages under the FHA). The
Court is convinced by these and other decisions that the Kolstad standard used
to analyze punitive damages in civil-rights cases should also be used in FHA
cases. See id. (being similarly convinced).
Under this standard, “[p]unitive damages are appropriate in a federal
civil rights action when the defendant’s conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.” Quigley v. Winter, 598 F.3d 938, 952-53
(8th Cir. 2010) (internal quotation marks omitted) (applying the Kolstad
standard to analyze punitive damages under the FHA). Kolstad held that “the
terms ‘malice’ and ‘reckless [indifference]’ ultimately focus on the actor's state
of mind.” Id. at 953 (quoting Kolstad, 527 U.S. at 535) (entire quotation drawn
from Kolstad except for brackets). More specifically, they “pertain to the
defendant's knowledge that he may be acting in violation of federal law, not his
awareness that he is engaging in discrimination.” Id. (quoting an Eighth
Circuit cases quoting Kolstad, 527 U.S. at 535) (brackets omitted). So for
punitive damages to be available, a defendant “must at least discriminate in
the face of a perceived risk that [his or her] actions will violate federal law.”
Kolstad, 527 U.S. at 536; accord Quigley, 598 F.3d at 953.
Because the Fischers’ factual allegations make it plausible that Counter
Defendants perceived the risk that their actions may violate federal law,
punitive damages are valid at this stage of the proceedings. As discussed
above under the refusal-to-accommodate claim, the Fischers’ Amended
Counterclaim and the documents attached to it show that Counter Defendants
had more than enough information to conclude that Deborah was entitled to
her accommodation under the FHA. Yet they demanded still more information
and sued rather than making the correct (and obvious) decision. So when the
Fischers allege that Counter Defendants engaged in these action with “total
and reckless disregard of [the Fischers’’] rights and indifferen[ce] to the medical
conditions or needs of [Deborah],” that allegation is plausible. (ECF No. 82 at
15.) Moreover, Deborah sent a link to the Joint Statement to Trapani, and in
his reply, Trapani acknowledged that he was familiar with the Joint Statement
and that the “Association [i.e., Sabal Palm] is aware of your apparent
disability.” (ECF Nos. 82-4 at 2; 82-5 at 2.) Silvergold was the president of the
Board and Trapani copied him on the various letters he sent, so it is plausible
that Silvergold was aware of this legal authority as well. And the Joint
Statement does not support Counter Defendants’ conclusion that based on the
information that they received, Sabal Palm was within its rights to deny
Deborah the accommodation. So by even stronger force of logic, the Joint
Statement does not support Sabal Palm’s decision to sue rather than grant the
accommodation. Moreover, the April 2012 letter written by Trapani on behalf
of Sabal Palm and carbon copied to Silvergold states that the “Association
recognizes that the issue relating to whether, and under what circumstances,
accommodations to disabled persons are required is an evolving issue under
the law.” (ECF No. 82-9 at 3.) This more than plausibly establishes that
Counter Defendants perceived the risk that may be violating the FHA when
they sued rather than grant Deborah’s request even though they had more
than enough information. Punitive damages remain viable at this point. The
Court denies Counter Defendants’ requests to strike the Fischers’ claim to
punitive damages.
Conclusion
For the above reasons, the motions to dismiss (ECF Nos. 89, 95, 96) are
granted in part and denied in part and the request to strike punitive
damages (ECF No. 90) is denied. More specifically, the Court grants the
motions to dismiss with respect to the Fischers’ § 3604(c) and § 3617 claims.
These claims are dismissed with prejudice. But the Court denies the motions
to dismiss with respect to the Fischers’ refusal-to-accommodate claim. This
claim stands. The Court denies the Fischers’ motion (ECF No. 214) seeking
leave to amend their Amended Counterclaim.
Done and ordered in chambers, at Miami, Florida, on March 13, 2014.
___________________________________
Robert N. Scola, Jr.
United States District Judge
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