Kimberly Regenesis, LLC v. Lee Cnty.

• Decision Date: 14 February 2020
• Docket Number: Case No.: 2:19-cv-538-FtM-38NPM
• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Parties: KIMBERLY REGENESIS, LLC and DAMASCUS TRADING COMPANY, LLC, Plaintiffs, v. LEE COUNTY, Defendant.

KIMBERLY REGENESIS, LLCand DAMASCUS TRADING COMPANY, LLC, Plaintiffs, v. LEE COUNTY, Defendant.

Case No.: 2:19-cv-538-FtM-38NPM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

February 14, 2020

OPINION AND ORDER¹

Before the Court is Defendant's Motion to Dismiss (Doc. 20), Plaintiffs' Third Corrected Memorandum in Opposition (Doc. 28), Defendant's Reply (Doc. 33), and Plaintiffs' Surreply (Doc. 35). For the following reasons, the Motion is denied.

BACKGROUND

This case is about whether Lee County violated the Americans with Disabilities Act (ADA) when it denied Plaintiffs' rezoning request to allow a property to be used as a substance abuse treatment center and detoxification facility. The County's quasi-judicial decision was appealed through Florida's two-tier certiorari review process to the Circuit Court, and then to the Second District Court of Appeals. The issue here is whether Plaintiffs are getting an impermissible third bite at the apple. Defendant argues that the Court lacks subject-matter jurisdiction over this case for two reasons: (1) the Rooker-Feldman doctrine strips this Court of subject-matter jurisdiction because Plaintiffs already litigated the ADA claim in the state courts; and (2) that Plaintiffs lack standing to bring their ADA claim. In addition, Defendants argue that res judicata or claim preclusion is fatal to Plaintiffs' case.

Because the claim here involves the ADA, the Court will generally limit its recitation of the facts (Doc. 1) to that issue.² In November 2014, TDM Consulting, Inc., Damascus Trading Company of Florida, LLC³, Thomas M. Mouracade, and Beverly Grady, Esq. filed an application with Lee County for rezoning of the property at 6401 Winkler Road to redevelop the existing 5.15-acre parcel and buildings into "a holistic medicine center to provide social and health-related services including the treatment of substance use disorders" to be called the Kimberly ReGenesis Center. (Doc. 1 at ¶ 32). The Center would provide in-house residential substance abuse treatment.

Following a three-day hearing, the Lee County Hearing Examiner issued a Recommendation on May 13, 2015, recommending that the Board of County Commissions (BOCC) approve the request with two minor deviations. In doing so, the Hearing Examiner found in part:

The principal use of the structures on the property will be for in-residence treatment of persons recovering from dependency on alcohol and chemical substances. These individuals fall within the scope of several federal anti-discrimination laws. [citing the ADA, Sec. 504 of the Rehabilitation Act, and the Fair Housing Act and stating that 'both Acts expressly cover participants in supervised rehabilitation programs for dependency on alcohol and chemical substances. Persons in recovery from alcohol and chemical dependency are members of a protected class under federal anti-discrimination housing laws as well.']. Individuals participating in supervised rehabilitation programs are part of the special needs population afforded protections under the Lee Plan as well. The Lee Plan tasks the County with providing adequate housing sites for special needs populations through the zoning process. In furtherance of the directive, housing for persons with special needs is permitted in all future land use categories that allow residential development. [citing Lee Plan Policies and stating that 'The proposed residential treatment facility will serve individuals with disabilities. The ADA and Rehabilitation Act protect individuals who seek health or other services associated with drug rehabilitation and, by extension, programs that provide treatment services to those individuals.'] The residential recovery and treatment facility in a neighborhood setting achieves the County's goals of serving the special needs community.

(Doc. 1 at 37) (internal footnotes omitted) (underlining in original).⁴ Exhibit C to the Hearing Officer's Recommendation lists a "Memorandum from Beverly Grady, with Roetzel and Andress, dated March 2, 2015, regarding Applicability of the Americans with Disabilities Act and the Fair Housing Act (multiple pages - 8.5"x11")" that was submitted as an exhibit at the hearing. (Doc. 1 at 70). A copy of this ADA Memorandum was not provided in this lawsuit. The Recommendation stated that a hearing would be held before the BOCC at which the Board "will consider the record made before the Hearing Examiner." (Doc. 1 at 75).

The BOCC did not follow the Recommendation and after a public hearing voted to deny the rezoning request on August 5, 2015. The Court has nothing before it showingthat the BOCC discussed the impact of the ADA at the hearing or made its decision after considering the ADA and its requirements.

On May 16, 2016, the zoning applicants filed a Petition for certiorari with the Circuit Court.⁵ In their Petition, Plaintiffs devote one paragraph to the ADA, stating: "In addition, the County decided Petitioner's application for a substance abuse detoxification facility because of a community opposition to people in recovery from drug and alcohol addiction (the 'Recovery Community'), a legally protected class under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq." (Doc. 20-1 at ¶ 14). In a footnote to paragraph 14, Plaintiffs state:

Under the ADA, persons in recovery and/or undergoing any form of treatment from alcohol or substance abuse are considered disabled and thus entitled to special status as a protected class. SeeJeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1339, 1357-7 (S.D. Fla. 2007); MX Group, Inc. v. City of Covington, 293 F.3d 326, 336-40 (6th Cir. 2002); Innovative Health Sys. v. City of White Plains, 117 F.3d 37, 48-49 (2d Cir. 1997), abrogated on other grounds as stated in Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001); 42 U.S.C. § 12210(b). Providers of detoxification services such as Petitioners, who provide services to qualified individuals with disabilities such as recovering addicts, have standing to challenge adverse local government zoning decisions under the ADA.

(Doc. 20-1 at n.2).

Nearly one month later, on June 10, 2016, Plaintiffs' counsel requested a "reasonable accommodation" from Lee County by sending a letter requesting a "reasonable accommodation administratively to treat the proposed use as a permitted use in the AG-2 zone or, in the alternative, to rezone the property to CFPD and treat theproposed use as a permitted one." (Doc. 1 at ¶ 84; Doc. 1 at 118-24). On August 25, 2016, Lee County denied the accommodation request.

On August 9, 2017, the Circuit Court denied the Petition for certiorari, upholding the decision to deny the rezoning application because there was competent, substantial evidence to support the BOCC's findings. In its 18-page Order, the Circuit Court stated that there were several claims made in the Petition. The one relevant for our purposes here: "Petitioners also allege that the Commissioners denied the application as a result of community opposition to the proposal, in direct violation of the rights of people in recovery from drug and alcohol addiction, who are a legally protected class under the Americans with Disabilities Act (Ground 4)." (Doc. 20-2 at 2). In addressing this claim, the Circuit Court found the following:

37. In Ground 4, Petitioners allege that the Commissioners denied the application as a result of community opposition to the proposal, in direct violation of the rights of people in recovery from drug and alcohol addiction, who are a legally protected class under the Americans with Disabilities Act. Respondent counters that 'in some instances, lay testimony can be helpful on factual matters affecting the property.' Motion, p. 29.

38. However, as discussed in one of the claims above, the Board was aware that it could not simply deny the application simply because members of the community opposed the proposed use, and took steps to instruct the public not to waste time at the hearing with comments that amounted to mere dislike at the thought of having the facility in the community. Commissioner Manning specifically initiated a conversation with the County Attorney on what opponents would have to demonstrate in order for the Board to deny the application, before explaining:

Okay. And there was a broader intent here. This little dialogue that we've had was intended also to be heard by the opponents and their attorneys so that they might not waste their time talking about - I just don't like this project in my neighborhood - to deal with specific legal points that would give us a basis for a decision other than approval.

Moreover, the Board understood that the potential for crime could not be a basis for denying the application. R. 1262. The public had the right to speak, as is reflected in the Lee County Administrative Code, AC-2-7, 2.2. The dialogue with the County Attorney at the beginning of the hearing underscores that the Board understood that it had to have a more solid reason than 'we don't want it here' if it was going to deny the application. As has also been discussed above, the Board denied the application because it would result in the encroachment of commercial uses into an existing residential area; it was incompatible with and not an acceptable transition into the current low density residential area to the south; it was not consistent with the surrounding land uses; it would result in a decrease in appraised property values for surrounding properties; the uses requested were not similar to and did not already exist in the surrounding area; it would not have a positive or neutral impact on the surrounding community; and no adequate conditions could be devised to address the potential impacts of the proposed request on the surrounding residential neighborhoods. Considering the record of the Commissioner's Hearing as a whole, and aware that the Board has the authority to reject the Hearing Examiner's recommendations,

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