Warren v. Delvista Towers Condo. Ass'n, Inc.

• Decision Date: 29 July 2014
• Docket Number: Case No. 13–23074–CIV.
• Citation: 49 F.Supp.3d 1082
• Parties: Paul Alexander WARREN, Plaintiff, v. DELVISTA TOWERS CONDOMINIUM ASSOCIATION, INC., Hyman D. Zelcer, Defendants.
• Court: U.S. District Court — Southern District of Florida

49 F.Supp.3d 1082

Paul Alexander WARREN, Plaintiff
v.
DELVISTA TOWERS CONDOMINIUM ASSOCIATION, INC., Hyman D. Zelcer, Defendants.

Case No. 13–23074–CIV.

United States District Court, S.D. Florida, Miami Division.

Signed July 29, 2014.

49 F.Supp.3d 1083

Marcy I. LaHart, Marcy I. LaHart, PA, Gainesville, FL, Robert N. Hartsell, Robert N. Hartsell, P.A., Sarah Morgan Hayter, Pompano Beach, FL, for Plaintiff.

Barry Adam Postman, Cole Scott & Kissane, Anika R. Campbell, Powers McNalis & Torres, West Palm Beach, FL, Roberto Carlos Blanch, Siegfried, Rivera, Hyman, Lerner, Coral Gables, FL, for Defendants.

49 F.Supp.3d 1084

ORDER DENYING DEFENDANT DELVISTA TOWERS CONDOMINIUM ASSOCIATION, INC.'S MOTION FOR SUMMARY JUDGMENT

JOSE E. MARTINEZ, District Judge.

This CAUSE came before the Court upon Defendant Delvista Towers Condominium Association, Inc.'s Motion for Summary Judgment.¹ (D.E. No. 76). Defendant Delvista Towers Condominium Association, Inc., (“Delvista” or “Defendant”) argues that Plaintiff Paul Alexander Warren's (“Plaintiff['s]”) accommodation request under §§ 3601–19 of the Federal Fair Housing Act (the “FHA”), to modify Defendant's “no pet” policy is unreasonable because Plaintiff's animal is allegedly a restricted breed in Miami–Dade County. (D.E. No. 76); see 42 U.S.C. §§ 3601 –19 (2012). Plaintiff has timely responded, asserting that the rulings and notices proffered by the United States Department of Housing of Urban Development (“HUD”) prevent the application of breed restrictions to a request for a reasonable accommodation. (D.E. No. 86). Defendant has replied (D.E. No. 94).

Additionally, the Court requested further briefing regarding the affect, if any, of 42 U.S.C. § 3615 on the Miami–Dade County ordinance relied upon by Defendant in its motion for summary judgment. The parties have timely filed their supplemental memoranda. (D.E. Nos. 129, 130). After careful consideration, this court denies Defendant's motion for summary judgment (D.E. No. 76) for the reasons set forth herein.

I. Background

Delvista is a condominium association within Miami–Dade County, Florida. (D.E. No. 77 at 1). Plaintiff owns and resides in Delvista Towers Condominium, which has a “no pet” policy, with the exception of birds and fish. (D.E. No. 77 at 3). Plaintiff's psychiatrist, Dr. Robert Vassal, diagnosed Plaintiff with Severe Recurrent Major DepressionDisorder and Post Traumatic Stress Disorder (“PTSD”). (D.E. No. 70–1 at 2). On June 12, 2013, Dr. Vassal “strongly recommended” to Delvista that it make a reasonable accommodation to its “no pet” policy pursuant to the Fair Housing Act (the “FHA”), allowing Plaintiff to live with his assistance animal, “Amir,” because of the dog's therapeutic use and function. Id. Delvista also received a written letter from Plaintiff directly, explaining his disorder, attaching the letter from his psychiatrist, and requesting a reasonable accommodation to the “no pet” policy. (D.E. No. 70–2 at 3–4). On June 27, 2013, Delvista's legal counsel sent correspondence to Dr. Vassal and Plaintiff requesting additional information “to properly evaluate [Plaintiff's] claim that he requires a reasonable accommodation” and threatened Plaintiff with the possibility of a lawsuit if the information was not provided within ten days. (D.E. Nos. 70–3, 70–4). Thereafter, Plaintiff retained counsel who again petitioned for the accommodation on his behalf. (D.E. No. 70–5). To date, Delvista has failed to grant the accommodation, but Plaintiff continues to keep Amir in his dwelling. (D.E. No. 103 at 10, D.E. No. 104 at 8). In failing to grant the accommodation, Delvista argues that the accommodation is per se unreasonable because Amir is allegedly a pit bull, and pit bull dogs are banned by ordinance in Miami–Dade County (D.E. No. 77 at 2).

49 F.Supp.3d 1085

II. Legal Standard

Pursuant to Fed.R.Civ.P. 56(a), “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue of fact is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ; Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. It is “material” if it might affect the outcome of the case under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In addition, when considering a motion for summary judgment, the Court is required to view the evidence in the light most favorable to the non-moving party. Id. at 255, 106 S.Ct. 2505.

If the moving party bears the burden of proof at trial, the moving party must establish all essential elements of the claim or defense in order to obtain summary judgment. See U.S. v. Four Parcels of Real Prop. in Greene & Tuscaloosa Counties, 941 F.2d 1428, 1438 (11th Cir.1991). The moving party “ ‘must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial.’ ” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)). “If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, ‘come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.’ ” Four Parcels, 941 F.2d at 1438 (quoting Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.1991) ).

By contrast, if the non-moving party bears the burden of proof at trial, the moving party may obtain summary judgment simply by establishing the nonexistence of a genuine issue of material fact as to any essential element of a non-moving party's claim or affirmative defense. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. When the non-moving party bears the burden of proof, the moving party does not have to “support its motion with affidavits or other similar material negating the opponent's claim.” Id. at 323, 106 S.Ct. 2548 (emphasis in original). The moving party may discharge its burden in this situation by showing the Court that “there is an absence of evidence to support the nonmoving party's case.” Id. at 324, 106 S.Ct. 2548. Once the moving party discharges its initial burden, a non-moving party who bears the burden of proof must cite “to particular parts of materials in the record” or show “that the materials cited do not establish the absence or presence of a genuine dispute.” Fed.R.Civ.P. 56(c)(1).

III. Analysis

To prevail on a failure to accommodate claim pursuant to Section 3604(f)(3)(B) of the FHA, Plaintiff “must establish that (1) he is disabled or handicapped within the meaning of the FHA, (2) he requested a reasonable accommodation, (3) such accommodation was necessary to afford him an opportunity to use and enjoy his dwelling, and (4) the defendants refused to make the requested accommodation.”

49 F.Supp.3d 1086

Hawn v. Shoreline Towers Phase 1 Condo. Ass'n, Inc., 347 Fed.Appx. 464, 467 (11th Cir.2009) (quoting Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218–19 (11th Cir.2008) ). Defendant concedes for purposes of its motion that Plaintiff has met all requirements for making a reasonable accommodation.² Defendant only challenges that Plaintiff's request for an accommodation is unreasonable. (D.E. No. 76 at 6). Thus, this Court will focus on whether Plaintiff's request is reasonable.

The FHA defines a discriminatory housing practice as any “act that is unlawful under section 3604, 3605, 3606, 3617 of this title.” 42 U.S.C. § 3602(f). Plaintiff has brought this action alleging that Defendant failed to make a “reasonable accommodation” under Section 3604 of the FHA. (D.E. No. 70); see 42 U.S.C. § 3604(f)(3)(B). Defendant argues that the requested accommodation is unreasonable because a Miami–Dade County ordinance bans Amir's alleged breed—pit bull. (D.E. No. 117 at 11); see also Miami–Dade County, Fla., ch. 5–17, § 89–22 (effective April 4, 1989).

The first question that must be answered is whether an emotional support dog, such as the role that Amir allegedly fulfills for Plaintiff, is a reasonable accommodation under the FHA. Section 3604(f)(3)(B) of the FHA indicates that discrimination includes: “A...