Phillips v. Acacia on Green Condo. Ass'n, CASE NO. 1:19CV1277

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Writing for the CourtMAGISTRATE JUDGE KATHLEEN B. BURKE
PartiesGENE B. PHILLIPS, et al., Plaintiffs, v. ACACIA ON THE GREEN CONDOMINIUM ASSOCIATION, INC., et al., Defendants.
Decision Date10 October 2019
Docket NumberCASE NO. 1:19CV1277

GENE B. PHILLIPS, et al., Plaintiffs,
v.
ACACIA ON THE GREEN CONDOMINIUM ASSOCIATION, INC., et al., Defendants.

CASE NO. 1:19CV1277

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

October 10, 2019


MAGISTRATE JUDGE KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiffs Gene B. Phillips and Stephen G. Weiss (hereinafter, "Plaintiffs")1 are residents and owners of units at Acacia on the Green Condominiums who allege that they are disabled. Plaintiffs filed a Complaint against Acacia on the Green Condominium Association, Inc., ("AGCAI") and eleven individuals (collectively, "Defendants")2 in which they allege that Defendants violated the American with Disabilities Act ("ADA"), the Fair Housing Act ("FHA"), and Ohio discrimination law by refusing to grant Plaintiffs an exception to an AGCAI rule prohibiting grills on patios. After the Court remanded six of the eight claims alleged in the Complaint to state court (Doc. 11), Defendants filed a Motion for Judgment on the Pleadings (the "Motion") as to the remaining two claims, Count 4 (FHA and ADA), and Count 5 (Oh. Rev. Code § 4112.02). Doc. 17. Plaintiffs filed an Opposition (Doc. 26) and Defendants filed a Reply (Doc. 31).

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In their Motion, Defendants, citing cases, argued that it is well-settled law that the ADA does not apply to condominium associations. Doc. 17, pp. 5-6. Plaintiffs, in their Opposition, state that they "have withdrawn" their ADA claim. Doc. 26, p. 13. Accordingly, Plaintiffs' ADA claim is DISMISSED with prejudice.

With respect to Plaintiffs' FHA and related state law claim, none of the cases Defendants rely on to support their Motion was decided at the pleadings stage and all are distinguishable on their facts. For that and the other reasons set forth below, the Court concludes that Plaintiffs' Complaint states a claim under the FHA and its state law analogue that is at least facially plausible and therefore DENIES Defendants' Motion.

I. Facts as alleged by Plaintiffs

Plaintiffs Phillips and Weiss each owns and occupies a ground-floor unit at Acacia on the Green Condominiums in Lyndhurst, Ohio, that is governed by AGCAI. Doc. 1-2, pp. 9-10, ¶¶ 15, 18-20; p. 11, ¶26-27; p. 13, ¶41. Their units are adjacent to one another and have adjacent concrete patios that extend more than ten feet beyond their units. Doc. 1-2, p. 13, ¶41.

Plaintiff Phillips suffers from neuropathy, requiring her to use a cane. Doc. 1-2, pp. 9-10, ¶ 16. Plaintiff Weiss suffers from cancer and an immune deficiency, making it difficult for him to walk more than short distances. Doc. 1-2, p. 10, ¶21. It is not clear when Plaintiffs became disabled, but they submit that they were "able to fully enjoy residing at the Acacia Condominium property for many years before they became disabled." Doc. 26, p. 11. Phillips has lived in her unit since 2002 and Weiss has lived in his unit since 2012. Doc. 1-2, p. 13, ¶41.

Since 2010, AGCAI has had a rule providing that "any form of cooking on the patio or balcony is prohibited." Doc. 1-2, p. 14, ¶46; Doc. 26-2, p. 10. From 1999 to 2010, the rule did not refer to patios and expressly prohibited only cooking on balconies. Doc. 26, p. 14; Doc. 26-

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2, p. 11. Nevertheless, Defendants assert, and Plaintiffs do not dispute, that gas grills have not been used on balconies or patios at AGCAI for over 25 years. See Doc. 31, p. 1; Doc. 29, pp. 17-18.3

In June 2014 and 2015, Weiss requested permission from Marvin Miller, AGCAI president, to use a gas grill on his patio. Doc. 1-2, pp. 12-13, ¶¶ 38, 43, 44. In his June 2015 request, Weiss cited the Ohio and Lyndhurst Fire Codes that had been amended in 2005 so as to permit the use of gas grills "as long as they are 10 feet from any combustibles surrounding the grill in addition to being at least 15 feet below the balcony above" and as long as the grill is constantly attended and an extinguisher is hung correctly on the patio. Doc. 1-2, pp. 13-14, ¶44; Doc. 29, p. 2 (Weiss letter). Miller denied Weiss's request based in part on the 2010 AGCAI rule prohibiting cooking on unit owners' patios. Doc. 1-2, p. 14, ¶¶45-46.

In 2016, Acacia built a new picnic pavilion, which included grills, for the use of its residents. Doc. 1-2, p. 21, ¶65(k); Doc. 26, p. 14.

In August 2018, Phillips requested permission from the AGCAI board to use a gas grill on her patio; her request was denied based on the AGCAI rule prohibiting cooking on unit owners' patios. Doc. 1-2, p. 15, ¶¶49-53; Doc. 29, pp. 11-13 (letters). Plaintiff Weiss also continued to request permission from the AGCAI board to use a gas grill on his patio in 2016 and 2018 and his requests were denied. See e.g. Doc. 29, pp. 14, 17 (letters).

In their Complaint, Plaintiffs allege that Defendants' refusal to permit them to use grills on their patios violates the American with Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA"), the Fair Housing Act, 42 U.S.C. §§ 3601, et seq., ("FHA"), and Ohio discrimination law, R.C. § 4112.02. They submit that Defendants' refusal to permit them to use grills on their patios means

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that they are required to walk several hundred feet to use the grills in the common area located on Acacia on the Green property. Doc. 1-2, pp. 46-49.

II. Legal Standard

The pleading requirements for a motion for judgment under the pleadings pursuant to Fed. R. Civ. P. 12(c) are the same as the requirements Rule 12(b)(6): the pleadings must demonstrate sufficient factual matter, if taken as true, which state a claim "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). "A plaintiff falls short if she pleads facts 'merely consistent with a defendant's liability' or if the alleged facts do not 'permit the court to infer more than the mere possibility of misconduct....'" Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2011)).

On a motion for judgment on the pleadings, all well-pleaded allegations of the non-moving party must be taken as true. Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008). The Court may examine the complaint and its exhibits, public records, items appearing in the record of the case, and exhibits attached to the motion so long as they are referenced in the complaint and are central to its claims. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). Judgment may be granted only "when there is no material issue of fact exists and the [moving party] is entitled to judgment as a matter of law." Id. (quoting JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007)).

III. Analysis

As an initial matter, Defendants' Motion and Plaintiffs' response indicates that Defendants have moved for "partial judgment on the pleadings." Doc. 17, p. 1; Doc. 26, p. 1. However, as the parties are aware, the Court previously remanded to state court all the claims in

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this case except for two: Counts 4 and 5. See Doc. 8 (Show Cause Order); Doc. 8 (Memorandum Opinion and Order). Defendants moved for judgment on the pleadings on Counts 4 and 5. Therefore, Defendants' Motion is not a request for "partial" judgment on the pleadings; it is a request for a full disposition of this case.

As noted above, Plaintiffs have withdrawn their ADA claim. Accordingly, the only claims left in this case are Plaintiffs' claim under the FHA and under its state law analogue.

A. Defendants are not entitled to judgment on the pleadings on Plaintiff's FHA claim

1. FHA standard

The FHA prohibits 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). "Discrimination" is "[a] refusal to make reasonable accommodations in rule, policies, practices, or services, when such accommodations may be made necessary to afford...

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