KOVACHEVICH, District Judge.
This cause is before the Court on the following:
1. Plaintiffs' motion for summary judgment filed on August 20, 1990.
2. Plaintiffs' memorandum of law in support of motion for summary judgment filed on August 20, 1990.
3. Plaintiffs' request for oral argument filed on August 20, 1990.
4. Stipulation by the parties filed on August 22, 1990. (Attached as Exhibit)
5. Defendant's cross motion for summary judgment and reply to Plaintiffs' motion for summary judgment filed on September 20, 1990.
6. Defendant's legal memorandum in support of its motion for summary judgment and in reply to Plaintiffs' summary judgment motion filed on September 20, 1990.
7. Plaintiffs' memorandum in opposition to Defendant's cross motion for summary judgment filed on October 2, 1990.
8. Defendant's motion to strike portion of Plaintiffs' memorandum in opposition to Defendant's cross motion for summary judgment filed on October 9, 1990.
9. Defendant's corrected motion to strike portion of Plaintiffs' memorandum in opposition to Defendant's cross motion for summary judgment filed on October 11, 1990.
10. Plaintiffs' reply to Defendant's motion to strike portion of Plaintiffs' memorandum in opposition to Defendant's cross motion for summary judgment filed on October 15, 1990.
This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment.
The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986),
In our view the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the party's case, and on which that party will bear the burden of proof at trial. Id. 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273.
The Court also said, "Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at p. 324, 106 S.Ct. at p. 2553, 91 L.Ed.2d at p. 274.
This Court finds that there is an absence of a genuine issue as to any material fact present in this case. Therefore, this case will be decided as a matter of law.
Plaintiffs filed their complaint on April 28, 1989. The complaint alleged the following facts as relevant to the causes of action asserted:
1. The individual Plaintiffs, at all times material hereto, all have resided in dwelling units encumbered by documentary use restrictions which are covenants running with the land, and which predate the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601, et seq., hereinafter referred to as "Act", which prohibits children from being a permanent resident of their "community", ie., their respective condominium, subdivision, or mobile home park.
2. Each of the individual Plaintiffs is over 70 years of age, and acquired his dwelling unit as a permanent residence prior to September 13, 1988 with the reasonable expectations:
a. That these documentary restrictions, which violated no statutory or constitutional provisions of the law or Constitutions of the United States or the State of Florida, would continue to be valid and enforceable property and contract rights, free from impairment by any law of the State of Florida so long as they were not arbitrarily and selectively enforced, and that these property and contract rights would not be taken by action of the United States Government.
b. Of privacy in continued peaceful possession of their respective dwelling units without the permanent presence of children under the age specified in their respective documents.
3. Each of the individual Plaintiffs' ownership or leasehold interest in his dwelling unit includes, as an appurtenance thereto, a joint ownership or use interest in the common areas/elements of their community, such as the recreation facilities and open space areas.
4. Each of the individual Plaintiffs purchased or leased his dwelling unit in reliance on advertising or written assurances that his community was an adult retirement community.
5. Each of the individual Plaintiffs resides in a community in which at least 80 percent of the dwelling units are occupied by at least one person 55 years of age or older, and intentionally chose to live in a community with such an age-homogenous environment.
6. Each of the individual Plaintiffs, by virtue of accepting the deed or lease to his property, agreed to be bound by the documentary restrictions encumbering his community, which documents constitute a mutual agreement among all of the dwelling unit owners or lessees in each community.
7. The Act, in 42 U.S.C. § 3602(k) defines "familial status" as: "... one or more individuals (who have not attained the age of 18 years) being domiciled with a parent, one having legal custody, or the designee of such parent or other person". The familial status is further bestowed upon pregnant women, and any person in the process of securing legal custody of an individual under 18 years of age.
8. The Act, in § 3604, makes it unlawful to, based upon familial status, refuse to sell or rent, or otherwise make unavailable or deny, a dwelling to any person; to discriminate against any person in the terms, conditions, or privileges of sale or rental, or in the provision or services or facilities in connections therewith; and to make, print, or publish any notice, statements or advertisement with respect to a sale or rental indicating any preference, limitation, or discrimination.
9. By virtue of the aforementioned sections of the Act, enforcement of the documentary restrictions would be violative of the Act, and would subject the individual Plaintiffs, and the members of the Boards of Directors of their respective associations, as well as the associations themselves, to severe penalties for violating the Act.
10. The Act contains two exemptions, for two types of "housing for older persons", hereinafter referred to HFOP, which are material to the privately financed housing communities at issue, as described in §§ 3607(b)(2)(B) and (C). These HFOP exemptions are commonly known as the "62 or older" and the "55 or older" exemptions.
11. Although enacted on September 13, 1988, the Act by its terms did not take effect until March 12, 1989.
12. In order to qualify for the 62 or older exemption, all new occupants of a housing facility after September 13, 1988 must have been aged sixty-two or older. The presence of one underage occupant is fatal to qualification for the exemption.
13. The 62 or older exemption is restrictive in its definition and severely limits the use and marketability of Plaintiffs' dwelling units.
14. The 55 or older exemption requires that the housing facility have:
(i) ... significant facilities and services designed to meet the physical or social needs of older persons, or if the provision of such facilities and services is not practicable, that such housing is necessary to provide important housing opportunities for older persons; and
(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.
The Complaint contains the following causes of action against Defendants:
Plaintiffs seek to have this Court declare unconstitutional and enjoin certain provisions of the Fair Housing Amendments Act of 1988 as applied to the Plaintiffs on the grounds that they are violative of the following provisions of the Constitution of the United States:
1. The Act violates Plaintiffs' right to freedom of association guaranteed to them by the First Amendment and their right of privacy as guaranteed to them by the First, Fourth, Fifth and Ninth Amendments.
2. The Act deprives Plaintiffs of equal protection of the laws in that it deprives them of liberty and property rights in violation of the Fifth Amendment with no basis therefore.
3. The Act takes Plaintiffs' liberty and property interests for a private purpose, without compensation, in violation of the Fifth Amendment.
4. The Act deprives Plaintiffs of due process of law, by depriving them of vested property and contractual rights with no basis therefore, and subjects Plaintiffs PRIEL, RIEDEL and SHIPLEY to arbitrary and capricious discrimination without due process of law, in violation of the Fifth Amendment.
5. The Act, and the regulations promulgated thereunder by Defendant, deprive Plaintiffs of due process of law by virtue of the vagueness of the "Housing for Older Persons"
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