521 F.Supp.2d 1307 (M.D.Fla. 2007), 8 05-cv-1696-T-30, Schwarz v. City of Treasure Island

Docket Nº:8 05-cv-1696-T-30
Citation:521 F.Supp.2d 1307
Party Name:Schwarz v. City of Treasure Island
Case Date:October 03, 2007
Court:United States District Courts, 11th Circuit, Middle District of Florida

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521 F.Supp.2d 1307 (M.D.Fla. 2007)

Matthew SCHWARZ, et al., Plaintiffs,


CITY OF TREASURE ISLAND, et al., Defendants.

No. 8:05-cv-1696-T-30MSS.

United States District Court, M.D. Florida, Tampa Division.

Oct. 3, 2007

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David Smolker, Ethan Jerome Loeb, Bricklemyer, Smolker & Bolves, P.A., Tampa, FL, Maura J. Kiefer, Maura J. Kiefer, P.A., St. Petersburg, FL.

James L. Yacavone, III, Jay Daigneault, Frazer, Hubbard, Brandt, Trask & Yacavone, LLP, Dunedin, FL, for Defendants.


JAMES S. MOODY, JR., District Judge.

THIS CAUSE comes before the Court upon Defendants' Dispositive Motion for Summary Judgment and Incorporated Memorandum of the Law (Dkt.177), Plaintiffs' Memorandum in opposition to the same (Dkt.209), Plaintiffs' Motion for Summary Judgment and Incorporated Memorandum of the Law (Dkt.178), and Defendants' Response in opposition to the same (Dkt.208).

Plaintiffs allege claims against the City of Treasure Island (the "City" or "Treasure Island") and the City of Treasure Island Code Enforcement Board (the "CEB") 1 for violations of the Fair Housing Act, as amended, 42 U.S.C. § 3601, et seq. (the "FHA"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), the Rehabilitation Act of 1973

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(the "Rehabilitation Act"), the equal protection and procedural due process provisions of the United States and Florida Constitutions, and Section 162.09 of the Florida Statutes. The Court, having considered the motions, response, memoranda, and being otherwise advised in the premises, determines that Defendants' Motion should be granted and Plaintiffs' Motion should be denied.


I. The Parties

Plaintiff Matthew Schwarz ("Schwarz") is the President and CEO of Gulf Coast Recovery, Inc. ("Gulf Coast"), a Florida corporation headquartered in the City. Schwarz founded Gulf Coast to provide out-patient rehabilitative services to individuals requiring professional assistance to overcome addictions to alcohol and/or controlled substances. On or about June 23, 2004, the Florida Department of Children and Family Services ("DCF") licensed Gulf Coast to provide out-patient treatment to recovering addicts at its facility located at 145 108th Avenue, Treasure Island (the "Treatment Facility"). Gulf Coast does not have a license from DCF to provide in-patient or residential treatment to its clients.

In addition to providing out-patient treatment, Schwarz and Gulf Coast own or lease a number of single family homes or condominiums throughout the City (collectively, the "Properties") to clients enrolled in the Gulf Coast treatment program. The clients' decision to seek lodging at one of the Properties is optional. 2 Clients who wish to reside in one of the Properties execute a short term lease with Schwarz (or with Schwarz in his capacity as President of Gulf Coast). Gulf Coast clients generally pay between $1,000.00 and $2,000.00 per month to lease a single bedroom in one of the Properties. The "John and Jane Doe" plaintiffs in this action are current or former tenants of the Properties and participants in the Gulf Coast recovery program (the John and Jane Does, Schwarz, and Gulf Coast are collectively referred to herein as the "Plaintiffs").

Schwarz and Gulf Coast claim that occupancy of the Properties is limited to Gulf Coast clients. While residing at the Properties, Gulf Coast clients agree to: (i) not consume drugs, alcohol, or illegal substances; (ii) not use or possess pornographic materials; (iii) not handle or possess weapons; (iv) clean up and maintain the Properties, and (v) not allow overnight guests without the express permission of Gulf Coast. 3 The Properties are fully furnished by Schwarz. While residents prepare their own meals, Schwarz provides food and other staples. According to Plaintiffs, such residential living accommodations are an important element of the Gulf Coast treatment program, as they reduce recidivism rates and provide a therapeutic environment that closely mirrors everyday life.

The City of Treasure Island is a compact coastal community of approximately 7,500 residents. According to Defendants, the City's population increases by almost one-hundred percent (100%) during tourist season due to increased occupancy of hotels,

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motels, apartments, and other short-term rentals. The City has adopted a Comprehensive Plan pursuant to Section 163.3194, Florida Statutes, which is implemented via the City's Land Development Regulations (the "LDR"), codified at Part II of the City's Code of Ordinances (the "Code"). According to Defendants, the City "formulated a series of zoning districts to control the sporadic growth and traffic associated with transient uses such as hotels and transient rentals and their impact on residential areas within the City." The LDR establishes five use districts that accommodate residential uses: (i) Residential Medium ("RM-15"), Residential Urban ("RU-75"), Resort Facilities Medium ("RFM-30"), Resort Facilities High ("RFH-50"), and Commercial General ("CG"). Transient uses are expressly permitted in the RFM-30, RFH-50, and Commercial General districts, which encompass approximately twenty-percent (20%) of the City's land area. 4

II. The City's Code Enforcement Activity

Beginning in November of 2004, the City began receiving complaints concerning a home owned by Schwarz, located at 12305 3rd Street East (the "12305 Property"). 5 Neighbors complained of excessive traffic, noise from the back yard, numerous people moving in and out, and that the property was being used as a "rehab facility" or half-way house for recovering addicts. Upon investigation, the City discovered that the 12305 Property was being used to house Gulf Coast clients, and that Gulf Coast advertised the residence as a "sober living facility" on its internet website. The City began corresponding with Schwarz regarding the use of the 12305 Property.

In February of 2005, the City discovered Schwarz was also housing Gulf Coast clients at a home located at 250 115th Avenue. By letter dated February 14, 2005, the City advised Schwarz that these properties were located in residential zoning districts, and that:

These properties may be used as rentals however uses such as group homes and congregate living may require additional city approvals and state licensing. Also, the frequency of tenant turnover and the number of unrelated families need to be defined to determine if these properties constitute a transient use or [are] overcrowded. We are aware that these properties have been advertised as halfway houses ... The City requires that a license be obtained for any type of rental use as mentioned above.

(Dkt.7, ¶ 35). Schwarz was asked to detail the uses of the properties so the City could determine whether a violation existed. Schwarz failed to provide the City with the requested information.

On April 25, 2005, the city cited Schwarz in connection with the 12305 Property for operating a residential, group, or transient rehabilitation facility without a license and for operating more than one business at the same location. The CEB held a hearing on the violation on June 23, 2005. During the hearing, Schwarz testified that the property was his personal residence, and that the others residing there were his roommates. Surrounding neighbors appearing at the hearing complained that the property was being leased to recovering

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addicts. The hearing was continued until July 6, 2005, at which time the CEB dismissed the violation on the basis of Schwarz's testimony that the 12305 Property was not being operated as a group home.

On or about July 8, 2005, Schwarz was cited for his use of the 12305 Property for violating City's Code Section 68-221, which prohibits the use of a property for any use not expressly permitted in a zoning district. The City's Code permits the following uses within the RM-15 district:

a. Dwelling, residential.

b. Public park and public recreation areas.

c. Home occupations in dwelling units as defined in Section 68-493.

d. Group homes licensed by the state department of health and rehabilitation excluding [Adult Congregate Living Facilities] ACLFs.

e. Telecommunication antennas attached to existing structures which comply with section 68-465 are prohibited.

f. Public education facilities.

g. Community residential homes.

The City claimed Schwarz was operating the 12305 Property as a "tourist dwelling," which is defined in Section 68-2 the City's Code as follows (in pertinent part):

Dwelling, tourist means a single-family or two-family dwelling which is used as a tourist dwelling. A single-family or two-family dwelling shall be considered a tourist dwelling according to the following criteria:

... (2) If the single-family or two-family dwelling operates under or is subject to an arrangement plan or design whereby sleeping accommodations and sanitary facilities in the dwelling or in a unit in the dwelling are offered to the public or reserved to private parties and the use thereof by members of the public is primarily on a daily, weekly, monthly or seasonal basis, it shall be considered a tourist dwelling. Provided that when the dwelling or unit in the dwelling is the sole residence of the guest, a rebuttable presumption arises that the dwelling or unit is not being used as a tourist home. Provided further that if the occupancy of such dwelling or unit does not change more frequently than six times or more in any continuous 12-month period, then a rebuttable presumption shall arise that the dwelling or unit is not being...

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