Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc.
| Decision Date | 07 October 1993 |
| Docket Number | No. 92-4635,92-4635 |
| Parties | Joseph W. MASSARO, Patricia Ann Massaro, Plaintiffs-Counterclaim Defendants-Appellants, Joseph P. Massaro, Plaintiff-Counterclaim Defendant, v. MAINLANDS SECTION 1 & 2 CIVIC ASSOCIATION, INC., Defendant-Counterclaim Plaintiff-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. MAINLANDS SECTION 1 & 2 CIVIC ASSOCIATION, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Michael R. Masinter, Ft. Lauderdale, FL, Alan G. Ehrlich, Jacaranda Lakes, FL, Gregory B. Friel, Dennis J. Dimsey, U.S. Dept. of Justice, Civil Rights Div., Washington, DC, for appellants.
Kathleen M. Burgener, Alan S. Becker, Becker & Poliakoff, P.A., Ft. Lauderdale, FL, for appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before KRAVITCH and COX, Circuit Judges and HOBBS *, Senior District Judge.
Joint appellants, the United States and the Massaros, filed a complaint against the Mainlands Civic Association (Association) alleging that the Association had discriminated against families with children in violation of the Fair Housing Act Amendments of 1988 by attempting to evict two families with infants. Appellees raise the affirmative defense that the Mainlands community is housing for older persons and thus, qualifies for an exemption under the Act. After a bench trial, the district court found that the Association met all three of the statutory requirements for the exemption, 796 F.Supp. 1499. On appeal, the parties have narrowed the issue to one prong of the three-part statutory test of the Fair Housing Act: whether the Mainlands Civic Association has proved "the publication of, and adherence to, policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older." 42 U.S.C. Sec. 3607(b)(2)(C)(iii). 1 The interpretation of this provision presents an issue of first impression in this circuit.
The Mainlands Section One and Two is a residential community consisting of 529 single-family houses located in Tamarac, Florida. Each home in the Mainlands is owned individually in fee simple, subject to a declaration of restrictions. The declaration of restrictions provides for the formation of the Mainlands Civic Association, a non-profit corporation expressly charged with enforcing the declaration. The declaration also specifies use limitations on the properties, including the age restriction at issue in this appeal, which states that "the use of all the lots in the aforedescribed lands is hereby limited to permanent residents sixteen (16) years of age or older." 2 This provision is the sole age requirement in the declaration. The declaration provides that it cannot be amended before July 1991. Thereafter, the vote of a majority of the homeowners in the subdivision is required for any change in its covenants and restrictions.
On September 26, 1989, the Mainlands Civic Association exercised its authority under the declaration and sent a letter to Joseph and Patricia Massaro advising them that the presence of their infant son in their home violated the declaration of restrictions and warning that litigation would ensue if the Massaros refused to remove the child. The Massaros responded by filing a complaint against the Association in federal district court and filing an administrative complaint with the Department of Housing and Urban Development (HUD) alleging that the Association's actions violated the Fair Housing Act's prohibition on discrimination against families with children. The Act provides for judicial and administrative enforcement procedures which may occur simultaneously. 42 U.S.C. Sec. 3604.
Months later, in April of 1990, the Association voted to amend its bylaws to restrict occupancy of the houses in the subdivision to persons 55 years old or over. 3 The Association reserved the right to grant hardship exemptions allowing residents below the age of 55, provided that at least 80% of the lots had one resident 55 years of age or older. The Articles of Incorporation for the Association provides that the bylaws can be amended by "a two-thirds vote of the membership" and membership is open to any homeowner in the Mainlands Section One and Two. The meeting of the Association to amend the bylaws was attended by 166 homeowners and the amendment passed by a vote of 159 in favor of the amendment and 6 against it, with one person abstaining. The meeting also passed a resolution to establish screening procedures to enforce the new amendment.
On September 7, 1990, Carrie and Gary Mirabile received a letter from the Association notifying them that the presence of their infant daughter in their home was a violation of the age prohibition in the declaration of restriction because she was under the age of sixteen. The Mirabiles also filed a complaint with HUD.
As a result of the complaints of the Massaros and the Mirabiles, HUD sent an investigator to the Mainlands. HUD's regional counsel subsequently determined that there was reasonable cause to believe that bias had occurred and issued a charge of discrimination. The agency made several findings to support its conclusions. The report stated that "[p]rior to April 13, 1990, the Association had not published policies and procedures demonstrating an intent to make Mainlands 'housing for persons 55 years of age or older.' " 4 Moreover, the agency found that the Association had failed to adhere to the policies stated in the amendment to the bylaws and that the Association maintained inadequate procedures to verify the ages of persons owning homes in the subdivision. HUD concluded that the Association failed to meet its burden of demonstrating that it qualifies for the exemption; accordingly, its actions against the Massaros and Mirabiles constituted discrimination on the basis of familial status.
After HUD issued a final determination, the case was referred to the Justice Department, which filed a complaint in federal district court on behalf of the United States. The district court consolidated the Massaros' and the United States's cases and conducted a bench trial. Contrary to HUD, the district court found that the Association met the requirements of the statute, thus qualifying for the exemption and defeating the discrimination charge. The Massaros and the United States appeal this decision.
A district court's findings of fact are reviewed under a clearly erroneous standard. Fed.R.Civ.P. 52(a). The application of the law to the facts, however, is subject to de novo review. See Universal Underwriters Ins. Co. v. Stokes Chevrolet, Inc., 990 F.2d 598, 601 (11th Cir.1993). Furthermore, under the law of this circuit, the Association carries the burden of proving its eligibility for the exemption. Rogers v. Windmill Pointe Village Club Ass'n, Inc., 967 F.2d 525, 527 (11th Cir.1992). Exemptions from the Fair Housing Act are to be construed narrowly, in recognition of the important goal of preventing housing discrimination. Elliott v City of Athens, 960 F.2d 975, 979 (11th Cir.1992).
Congress amended the Fair Housing Act in 1988 to include a prohibition against housing discrimination based on familial status. 42 U.S.C. Sec. 3604. The Act defines the term "familial status" as "one or more individuals (who have not attained the age of 18 years)" living with a parent or legal guardian. 42 U.S.C. Sec. 3602(k). Members of Congress determined the need for such legislation based on studies and hearings indicating that families with children were having difficulty securing housing because of age limitations. See 134 Cong.Rec. S10547 (daily ed. Aug. 2, 1988) (statement of Sen. Hatch); see also Seniors Civil Liberties Ass'n, Inc. v. Kemp, 965 F.2d 1030, 1035 (11th Cir.1992). 5
Some members, however, expressed misgivings regarding the impact of the amendments on retirement communities, where elderly residents had bought or rented homes with the expectation that they would be able to live without the noise and hazards of children. See 134 Cong.Rec. H6499 (daily ed. Aug. 8, 1988) (statement of Rep. Fish). To address these concerns, the Act exempts "housing for older persons" from the familial status provisions in the Act. Older persons' housing is defined as that "intended for occupancy by at least one person 55 years of age or older per unit." 42 U.S.C. Sec. 3607(b)(2)(C). Congress gave the Department of Housing and Urban Development the authority to determine whether housing qualifies for the exemption. The Act further provides that,
the Secretary [of HUD] shall develop regulations which require at least the following factors:
(i) the existence of significant facilities and services specifically designed to meet the physical or social needs of older persons....
(ii) that at least 80 percent of the units are occupied by at least one person 55 years of age or older per unit; and
(iii) the publication of, and adherence to, policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older.
Id.
In accordance with the statute, the Secretary of HUD promulgated regulations providing for the minimal requirements listed in the Act and further clarifying them. The pertinent regulations for this case explicate the third part of the statutory test requiring the publication of, and adherence to procedures and policies indicating an intent to provide housing for older persons. According to 24 C.F.R. Sec. 100.304(c)(2), there are six non-exclusive factors which are relevant to a determination under this part of the test:
(i) The manner in which the housing facility is described to prospective residents.
(ii) The nature of any advertising designed to attract prospective residents.
(iii) Age verification procedures.
(iv) Lease provisions.
(v) Written rules and regulations.
(vi) Actual practices of the owner or...
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