Scoggins v. Lee’s Crossing Homeowners Association

718 F.3d 262 (2013)

266*266 ARGUED: Charles Duke Ferguson, Marko & Magolnick, Miami, Florida, for Appellants/Cross-Appellees. Michael Sterling Dingman, Reed Smith, LLP, Falls Church, Virginia, for Appellees/Cross-Appellants. ON BRIEF: J. Damian Ortiz, The John Marshall Law School, Fair Housing Legal Clinic, Chicago, Illinois; Miguel M. de la O, De La O. Marko, Magolnick & Leyton, Miami, Florida, for Appellants/Cross-Appellees. Richard D. Kelley, Reed Smith, LLP, Falls Church, Virginia, for Appellees/Cross-Appellants.

Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.

Affirmed in part, vacated in part and remanded by published opinion. Judge KEENAN wrote the opinion, in which Judge NIEMEYER and Judge MOTZ joined.

Summary by Mary M. Howell, Esq.:

Association’s denial of accommodation request to allow disabled minor to use ATV to cross undeveloped portions of the project was upheld.  The evidence produced by association demonstrated that the benefit to the disabled resident is outweighed substantially by the potential danger that use of the ATV could cause to the residents of the community. Association produced overwhelming evidence showing that the use of an ATV as a general matter within the association, and the disabled resident’s use of such a vehicle in particular, present a significant threat to the disabled person’s own safety as well as to the safety of the other residents of the community

**End Summary**

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider the district court’s summary judgment holding that the plaintiffs, Dan Scoggins, Debbie Scoggins, and their son Jacob Scoggins (collectively, the plaintiffs), were not entitled under the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 through 3631 (the FHAA), to an accommodation and a modification that they requested from the Lee’s Crossing Homeowners Association (the HOA). The plaintiffs had requested: (1) a modification to add a ramp leading to the front door of their home for use by Jacob, who requires the use of a wheelchair; and (2) an accommodation to an HOA policy prohibiting the use of certain types of vehicles to allow Jacob to use an All-Terrain Vehicle (ATV) within the Lee’s Crossing subdivision (Lee’s Crossing or the community).

After the HOA failed to grant their requests, the plaintiffs filed a complaint against the HOA and Jack Merritt, Jr., a 267*267 member of the HOA’s board of directors (together, the defendants). The district court granted the defendants’ motion for summary judgment, but denied their request for attorneys’ fees and costs. The plaintiffs appeal from the district court’s award of summary judgment to the defendants, and the defendants appeal from the court’s denial of their request for attorneys’ fees and costs.

Upon our review, we vacate the district court’s holding on the merits of the modification request for the wheelchair access ramp, because that claim is not ripe. We affirm the district court’s holding with respect to the accommodation request for permission to use an ATV, because that request was not “reasonable” within the meaning of the FHAA. We also affirm the district court’s denial of the defendants’ request for attorneys’ fees and costs.

I.

Dan and Debbie Scoggins purchased a ten-acre lot in 2002 in Lee’s Crossing, a subdivision in Loudoun County, Virginia, where they built a home in which they have resided for several years.^[1] Dan and Debbie live with their 22-year-old son Jacob, who requires the use of a wheelchair because he is partially paralyzed as a result of a car accident that occurred when he was a child.

All individuals purchasing property in Lee’s Crossing are required to abide by the rules of the HOA and certain restrictive covenants (collectively, the covenants). The covenants require that homeowners obtain approval from the Lee’s Crossing Architectural Review Board (the review board) for any changes that the owners seek to make affecting the external appearance of their property. During construction of their home, the plaintiffs were granted permission from the review board to build a walk-out basement to facilitate Jacob’s access to the residence. The plaintiffs later installed a wheelchair ramp in their garage, which is attached at the main level to one end of their home, giving Jacob an additional means of entering the residence in his wheelchair.

The covenants also contain rules governing activities conducted on the common grounds of Lee’s Crossing. These rules include a policy prohibiting the use of off-road vehicles such as ATVs on the common driveways and roads of the community.

The plaintiffs requested an exception to the HOA’s policy prohibiting the use of ATVs (the ATV request). They made this request because the streets of Lee’s Crossing are unpaved, making it difficult for Jacob to travel within the community using either his manual or power wheelchair.^[2] The plaintiffs asserted that Jacob’s use of an ATV would allow him to accompany his family and friends on walks within the community.

In May 2009, Debbie Scoggins sent an email to representatives of the HOA, in which she asked that Jacob be allowed to use an ATV on the common roads of Lee’s Crossing. At HOA meetings in July 2009 and September 2009, the members of the Lee’s Crossing board of directors (the 268*268 board of directors) discussed the ATV request, but “tabled” the request on each occasion pending the receipt of further details. However, the board members did not contact the plaintiffs to obtain these additional details. Further, although these board meetings were open to the public, the plaintiffs were not notified that the ATV request was scheduled to be discussed and they did not attend either meeting.

The ATV request remained dormant until August 26, 2010, when Debbie Scoggins sent an email to the property manager for Lee’s Crossing, renewing the ATV request and expressing concern that the HOA had ignored the previous request. A representative of the board of directors replied on September 11, 2010, 16 months after the plaintiffs’ initial ATV request, seeking additional information concerning the request. The plaintiffs did not respond to this inquiry.

About this same time, on September 20, 2010, the plaintiffs submitted a written request to the review board seeking permission to construct a ramp leading to the front door of their home (the ramp request).^[3] The covenants require that homeowners planning such external construction submit a written application to the review board, containing “detailed plans and specifications,” including the size and materials for the proposed construction.

Under the covenants, the review board is allotted 30 days to respond to a written request.^[4] The covenants also grant the review board “the unilateral right to request additional information as well as the right to reject any and all applications which are not complete.”

The plaintiffs did not wait for a denial or the expiration of the 30-day period, but filed a complaint in the district court on October 13, 2010, which included a claim based on the “denial” of their ramp request. The review board later responded to the plaintiffs’ ramp request in a letter dated October 18, 2010, which stated that the board denied the application “procedurally, as being incomplete.” The review board also identified “numerous missing items in the application,” and asked that those items be submitted. Finally, the letter stated that the review board’s response was “not a substantive denial of a request for a second ramp at your house, but merely requires you to provide a complete application so the [HOA] can properly determine what you wish to construct.”

In their amended complaint filed under the FHAA, the plaintiffs asserted that the defendants’ failure to allow a reasonable modification of the plaintiffs’ home, to add a front ramp (the ramp request claim), violated 42 U.S.C. § 3604(f)(3)(A). The plaintiffs further alleged that the defendants’ refusal to permit a reasonable accommodation allowing Jacob to operate an ATV within the community (the ATV request claim) violated 42 U.S.C. § 3604(f)(3)(B). The plaintiffs sought monetary damages and injunctive relief directing the defendants to grant permission for construction of the front ramp and to approve the ATV request.

Upon completion of discovery, the defendants filed a motion for summary judgment.^[5] 269*269 The district court granted the defendants’ motion, concluding that the plaintiffs’ evidence failed to show that the ramp was “necessary,” within the meaning of the FHAA. The court alternatively held that the ramp request claim was premature because the review board had not denied the ramp request but, rather, timely had informed the plaintiffs that the ramp request would be considered if they completed the application process and filed the necessary materials. With respect to the ATV request claim, the district court held that the plaintiffs failed to produce evidence showing that the ATV request was either “reasonable” or “necessary,” within the meaning of the FHAA.^[6] The court also held alternatively that the ATV request claim was premature.

After the district court entered final judgment, the defendants filed a motion seeking attorneys’ fees and costs. The court denied the motion, holding that the lawsuit was not frivolous and that, therefore, an award of attorneys’ fees and costs was not required under the FHAA. The court also declined to apply a provision in the covenants requiring that a homeowner pay the HOA’s attorneys’ fees and costs if the HOA substantially prevailed in litigation brought by the homeowner. The court concluded that such a provision was unenforceable in this action as being contrary to the public policy interest of encouraging private parties to pursue potential FHAA violations.

II.

We first address the issues presented in the plaintiffs’ appeal. We review de novo the district court’s award of summary judgment in favor of the defendants, viewing the facts, and all reasonable inferences that may be drawn from those facts, in the light most favorable to the plaintiffs. See Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir.2011); S.C. Green Party v. S.C. State Election Comm’n, 612 F.3d 752, 755 (4th Cir.2010). Summary judgment is appropriate only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 295 (4th Cir.2010).

A.

We begin by addressing the plaintiffs’ ramp request claim. The plaintiffs initially assert that the district court erred in concluding that the ramp request claim was premature. They argue that this claim was ripe for judicial consideration because the defendants both actually and constructively denied the ramp request before the present complaint was filed in the district court. We disagree with the plaintiffs’ argument.

The “ripeness” requirement originates in the “case or controversy” constraint of Article III, and presents a “threshold question[ ] of justiciability.” Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 195 (4th Cir. 2013) (Lansdowne); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (explaining that “[i]f a dispute is not a proper case or controversy, the courts have no business 270*270 deciding it, or expounding the law in the course of doing so”). The issue of ripeness entails an analysis considering the fitness of the issues before the court, as well as the hardship that the parties will experience if the court withholds consideration of the dispute. Lansdowne, 713 F.3d at 197-98 (citing Miller v. Brown, 462 F.3d 312, 319 (4th Cir.2006)).

“The doctrine of ripeness prevents judicial consideration of issues until a controversy is presented in clean-cut and concrete form.” Miller, 462 F.3d at 318-19 (citation and internal quotation marks omitted). As explained by the Supreme Court, the purpose of the ripeness doctrine is to require courts to avoid taking premature judicial action, thereby preventing them from becoming entangled in “abstract disagreements.”Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967),abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

A case is fit for adjudication “when the action in controversy is final and not dependent on future uncertainties.” Miller, 462 F.3d at 319; Franks v. Ross, 313 F.3d 184, 195 (4th Cir.2002). Stated alternatively, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (citation and internal quotation marks omitted); see also Bryant Woods Inn, Inc. v. Howard Cnty., Md., 124 F.3d 597, 602 (4th Cir. 1997) (in determining whether a claim is ripe, we “decide whether the issue is substantively definitive enough to be fit for judicial decision and whether hardship will result from withholding court consideration”).

An issue becomes ripe for adjudication under the FHAA when a disabled resident first is denied a reasonable and necessary modification or accommodation. SeeBryant Woods, 124 F.3d at 602. As the parties bringing this FHAA action, the plaintiffs have the burden of establishing that their claims are ripe. See Miller, 462 F.3d at 319.

It is undisputed that the plaintiffs’ first written application to construct the ramp was made on September 20, 2010. Under the covenants, the review board was required to respond to that application within 30 days. However, the plaintiffs did not wait the full 30-day period for a response, but instead initiated the present court action on October 13, 2010.

Additionally, as developed in discovery in this case, the review board sent the plaintiffs a letter on October 18, 2010, stating that the application was “incomplete” and asking for further information about the proposed ramp. Although the plaintiffs do not dispute the board’s finding that the application was incomplete, they declined to supplement the application as requested by the review board. In light of these facts, the defendants did not “deny” the ramp request, as would be necessary to present a controversy in “clean-cut and concrete form” appropriate for adjudication by a federal court. Miller, 462 F.3d at 318-19. Further, contrary to the plaintiffs’ argument, the defendants’ actions have not amounted to a constructive denial of the ramp request.

We also observe that the defendants stipulated during oral argument before this Court that the review board will approve the plaintiffs’ ramp request upon their submission of the specifications requested by the board. The fact that the defendants will grant the ramp request upon the plaintiffs’ proper submission of 271*271 that request is material to our analysis of the hardship prong of the ripeness inquiry. See Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507 (discussing hardship prong of the ripeness analysis); Lansdowne, 713 F.3d at 197-99 (same). We further observe that the ramp request claim is not time-sensitive, and thus a holding that the claim is not ripe will not present an immediate threat to the plaintiffs. See Lansdowne, 713 F.3d at 198-99(stating that the hardship prong is analyzed by considering the immediacy of any threat and the burden imposed on a plaintiff) (citation omitted). Moreover, our holding encourages, rather than forecloses, the plaintiffs’ ability to submit the information requested by the review board, and thus withholding consideration of this claim does not impose a significant burden on the plaintiffs. Therefore, we conclude that the parties will not experience a significant hardship as a result of our withholding consideration of the ramp request claim. Accordingly, we hold that the ramp request claim is not ripe for review, because final action on the request is still forthcoming and is “dependent on future uncertainties.” See Miller, 462 F.3d at 319.

In reaching this conclusion, we agree with the district court’s determination that the verbal inquiries made by the plaintiffs in 2003 and 2007 are barred from consideration in determining ripeness, because those requests were made outside the two-year statute of limitations. See 42 U.S.C. § 3613(a)(1)(A). Those oral requests also do not qualify for consideration pursuant to the “continuing violation” doctrine, under which acts occurring outside the statute of limitations may be considered when there is a “fixed and continuing practice” of unlawful acts both before and during the limitations period. Nat’l Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1166-67 (4th Cir.1991) (citation omitted); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (applying “continuing violation” doctrine to Fair Housing Act claim).

Here, even if we assume that those two oral requests made during a seven-year period qualified as valid applications for the review board’s consideration, we conclude that the board’s failure to act on them did not constitute a “fixed and continuing practice.” See Nat’l Advertising Co., 947 F.2d at 1166-67; cf. A Soc’y Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir.2011) (noting that for purposes of continuing violation doctrine, plaintiff must show that illegal act “did not occur just once, but rather in a series of separate acts”) (citation and internal quotation marks omitted). Thus, we hold that the continuing violation doctrine is not applicable in this case. Accordingly, because the ramp request claim is not ripe for judicial review, we vacate the portion of the district court’s judgment adjudicating the merits of that claim in favor of the defendants. See Giovani Carandola, Ltd. v. Fox,470 F.3d 1074, 1085 n. 5 (4th Cir.2006) (holding that portion of plaintiff’s complaint was not ripe, and vacating that aspect of the district court’s decision).

B.

We next address the issue whether the district court erred in awarding summary judgment to the defendants on the ATV request claim. Initially, we observe that, contrary to the district court’s conclusion, the ATV request claim was not premature. A denial of a request need not be explicit, but rather may be treated as a “constructive” denial based on the decision maker’s conduct. See Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir.2000) (noting that a denial under the 272*272 FHAA may be “actual or constructive, as an indeterminate delay has the same effect as an outright denial”).

It is undisputed that the plaintiffs made the ATV request in writing in May 2009, and there is no suggestion that the manner in which they made their request violated the HOA’s procedures. The board of directors twice “tabled” the ATV request pending a decision to seek additional information from the plaintiffs, but the board did not ask the plaintiffs to provide such information until more than 15 months later. Under these circumstances, the HOA’s failure to take any action for such an extended period operated as a constructive denial of the ATV request.^[7] See Groome Res., 234 F.3d at 199 (concluding that defendant’s failure to act for over three months on an application for an accommodation constituted a constructive denial of the accommodation request, and that the issue therefore was ripe for review). Accordingly, we turn to address the issue whether the HOA’s constructive denial of the ATV request violated the FHAA.

The FHAA forbids discrimination against any person because of a handicap or disability in the provision of services in connection with a dwelling.^[8] See 42 U.S.C. §§ 3601-3631; Bryant Woods, 124 F.3d at 602-03 (discussing the FHAA). The FHAA defines “discrimination” in relevant part as “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B); Bryant Woods, 124 F.3d at 603.

A party raising an accommodation claim under the FHAA bears the burden of establishing that the proposed accommodation is “(1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing.”Bryant Woods, 124 F.3d at 603-04 (citing 42 U.S.C. § 3604(f)(3)). For purposes of the ATV claim, we focus our analysis on the “reasonableness” prong of this standard. In determining whether a proposed accommodation is reasonable under the FHAA, we undertake a fact-specific inquiry, considering, among other things, “the extent to which the accommodation would undermine the legitimate purposes and effects of [the] existing [ ] regulations and the benefits that the accommodation would provide” to the plaintiff. Id. at 604.

In enacting the FHAA, Congress made clear that the health and safety of other persons are relevant factors in determining whether a person or entity violated the FHAA. See 42 U.S.C. § 3604(f)(9) (“Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a directthreat to the health or safety of other individuals.“) (emphasis added).^[9] We join other courts that have recognized this principle, and hold that the potential for personal injury is a relevant consideration 273*273 in examining whether a modification or accommodation request was reasonable. See Dadian v. Village of Wilmette, 269 F.3d 831, 840-41 (7th Cir.2001) (analyzing 42 U.S.C. § 3604(f)(9) and observing that a defendant may, in certain circumstances, deny a plaintiff’s accommodation request if that request poses a direct threat to safety of others)^[10]; Howard v. City of Beavercreek, 108 F.Supp.2d 866, 875 (S.D.Ohio 2000) (holding that defendant was not required by the FHAA to grant plaintiff permission to construct a six foot fence to alleviate the effects of post traumatic stress disorder, because the fence posed a threat to pedestrian and vehicular traffic), aff’d on other grounds, 276 F.3d 802 (6th Cir.2002); Bangerter v. Orem City Corp., 46 F.3d 1491, 1503-04 (10th Cir.1995)(observing that the FHAA permits “reasonable restrictions on the terms or conditions of housing [to disabled individuals] when justified by public safety concerns,” so long as those concerns are not based on “blanket stereotypes” about persons with disabilities).

Without question, the plaintiffs established that use of an ATV would make it easier for Jacob to travel on the unpaved roads of Lee’s Crossing, and that it would be impractical for him to use his power wheelchair for this purpose because of the potential damage to the wheelchair’s electronic components. Accordingly, the plaintiffs established that the use of an ATV would afford Jacob the benefit of easier transportation within the community.

Nevertheless, the present record shows that such benefit to Jacob is outweighed substantially by the potential danger that use of the ATV could cause to the residents of the community. The defendants produced overwhelming evidence showing that the use of an ATV as a general matter within Lee’s Crossing, and Jacob’s use of such a vehicle in particular, present a significant threat to Jacob’s own safety as well as to the safety of the other residents of the community.

Among other items, the defendants included in the record a copy of the owner’s manual (the manual) for the ATV model that Jacob sought to operate. The manual emphasizes that the use of the ATV is “FOR OFF-ROAD USE ONLY,” and that the ATV does not conform to federal motor vehicle safety standards. The manual contains the additional warning that “the ATV does not have turn signals and other features required for use on public roads.” Separately, the manual again states that “[y]ou should never ride your ATV on public streets, roads or highways, even if they are not paved. Drivers of street vehicles may have difficulty seeing and avoiding you, which could lead to a collision.” (Emphasis added.)

The evidence further showed that drivers traveling the roads of Lee’s Crossing are permitted to operate their vehicles at speeds up to 35 miles per hour, in excess of the speed limits in effect on many public roads. Thus, it is of particular note that the Code of Virginia prohibits, as a general matter, the operation of any all-terrain vehicle “[o]n any public highway, or other public property.” Va.Code § 46.2-915.1.

We also observe that the defendants’ expert witness, Gary E. Kilpatrick, a certified professional engineer with experience in the operation of ATVs, submitted a 274*274report describing the dangers inherent in operating an ATV in an area such as Lee’sCrossing. In his report, Kilpatrick stated that “ATVs are designed specifically for operation on off-road dirt terrain,” and that the tires of an ATV “do not handle well on hard packed dirt roads, graveled roads and hard surfaced paved roads.” Kilpatrick further opined that ATVs are difficult for drivers of other vehicles to see and are not equipped with headlights, brake lights, or other devices to make them visible to other drivers on the road.

In addition to this evidence concerning the general dangers of operating an ATV within Lee’s Crossing, the defendants produced evidence showing the increased danger posed in ATV use by persons who have physical impairments. In his report, Kilpatrick stated that riding an ATV is physically demanding, and that, to operate an ATV safely, a rider must “have full use of his entire body, especially his hands, arms, torso and legs.” Kilpatrick, who examined Jacob’s medical reports, opined that the physical limitations caused by Jacob’s partial paralysis render his use of an ATV very dangerous, and that the medication he takes to control spasms in his lower extremities poses additional dangers. Accordingly, Kilpatrick concluded that “because of the hazards associated with riding ATVs, the surrounding terrain and his physical limitations, [Jacob] is and will be a danger to himself, other drivers, [and] pedestrians” if he were allowed to operate an ATV within Lee’s Crossing.

The plaintiffs have not refuted the defendants’ evidence that any operation of an ATV for other than off-road uses is inherently dangerous.^[11] Instead, the plaintiffs challenge Kilpatrick’s conclusion that Jacob’s physical limitations make his use of an ATV exceptionally dangerous. The plaintiffs rely primarily on Jacob’s own testimony, in which he stated that he could operate an ATV safely, and on a video recording of Jacob operating an ATV on the plaintiffs’ property without incident.^[12] Having considered this evidence alongside the defendants’ evidence, we conclude that the plaintiffs have not presented facts sufficient to create an issue for trial whether Jacob could operate an ATV within Lee’s Crossing without creating a danger to the residents of the community. Cf. Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir.2004) (plaintiff’s subjective belief about her abilities, absent sufficient objective corroboration, cannot defeat summary judgment).

In light of this conclusion, we need not reach the other elements of the ATV request claim, including whether the request would be “necessary” to afford Jacob an equal opportunity to enjoy the Lee’s Crossing community.^[13] Accordingly, we 275*275 affirm the district court’s award of summary judgment in the defendants’ favor on the ATV request claim, because the plaintiffs failed to establish that the proposed accommodation is “reasonable,” within the meaning of the FHAA. See Bryant Woods, 124 F.3d at 604 (directing courts to consider the benefits of the proposed accommodation against the extent to which the legitimate purposes and effects of the regulation would be undermined by the accommodation).

III.

We next consider the defendants’ contention on cross-appeal that the district court erred in declining to award them attorneys’ fees and certain additional costs incurred in defending this matter.^[14] The defendants filed a motion seeking an award of attorneys’ fees and costs, relying on the attorneys’ fees and costs provision of the FHAA, 42 U.S.C. § 3613(c)(2), as well as on the language in the covenants providing for the payment of attorneys’ fees when the HOA is a prevailing party.

With respect to their motion, the defendants requested an evidentiary hearing at which they could present evidence concerning the “reasonableness of [their] invoices, costs and expenses.” The record does not show the nature or the amount of such costs at issue in the motion for attorneys’ fees and costs, nor do the defendants argue on appeal the nature or amount of those additional costs sought.

We also observe that the defendants do not assert a separate basis for entitlement to an award of these unspecified costs independent from their asserted right to an award of reasonable attorneys’ fees. The district court considered the defendants’ motion without distinguishing the attorneys’ fees request from the present request for costs, and the defendants do not argue on appeal that the district court erred in considering those requests in tandem.

In analyzing the merits of the defendants’ contention that they are entitled to attorneys’ fees and costs, we observe that the defendants base the first part of their argument on the FHAA provision granting district courts the discretion to award attorneys’ fees and costs to a “prevailing party.” See 42 U.S.C. § 3613(c)(2) (providing that “the court, in its discretion, may allow the prevailing party … reasonable attorney’s fee[s] and costs”); Bryant Woods, 124 F.3d at 606. However, the Supreme Court has held that when an action involves a civil rights matter, and the prevailing party is a defendant, attorneys’ fees may be awarded by a district court only “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (construing § 706(k) of Title VII of the Civil Rights Act of 1964).

This Court held in Bryant Woods that the above standard in Christiansburg also applies to attorneys’ fees requests for 276*276 claims brought under the FHAA. 124 F.3d at 606. We hold that this standard is equally applicable to a request for an award of costs pursuant to the FHAA. See Taylor v. Harbour Pointe Homeowners Ass’n, 690 F.3d 44, 50-51 (2d Cir.2012) (analyzing prevailing defendants’ requests for attorneys’ fees and costs together under the Christiansburg standard in Fair Housing Act action).

Citing Christiansburg, the district court concluded that the plaintiffs’ complaint was not “frivolous, unreasonable, or without foundation,” 434 U.S. at 421, 98 S.Ct. 694,and, accordingly, declined to award attorneys’ fees to the defendants. After reviewing the record and the parties’ arguments, we conclude that the district court did not abuse its discretion in reaching this conclusion and in denying the defendants’ request on this basis.

The defendants argue separately, however, that they are entitled to attorneys’ fees and costs based on a provision in the covenants stating that, “[s]hould the Association, Board, Architectural Review Board or the Declarant substantially prevail in any litigation brought by or against an Owner, the Owner shall be required to pay all attorney’s fees and costs of the litigation, including expert witness fees, incurred by any such entity.” The defendants contend that the district court was required under this provision to award them attorneys’ fees and costs, irrespective of the standard set forth in Christiansburg and Bryant Woods. We disagree with the defendants’ argument.

Congress’ decision to encourage private civil actions under statutes such as the FHAA and the Civil Rights Act reflects a legislative choice to allow aggrieved citizens to advance the public interest. As the Supreme Court explained in Christiansburgwith respect to the Civil Rights Act, “the plaintiff [in such cases] is the chosen instrument of Congress to vindicate a policy that Congress considered of the highest priority.” 434 U.S. at 418, 98 S.Ct. 694 (citation and internal quotation marks omitted). Further, as we observed in Bryant Woods, the FHAA’s prohibitions “draw on the same policies attending Title VII of the Civil Rights Act.” 124 F.3d at 606 (observing similarities between the Civil Rights Act and the FHAA). We therefore conclude that, like the Civil Rights Act plaintiff discussed in Christiansburg, a plaintiff filing a lawsuit under the FHAA acts to effectuate the intent of Congress to vindicate the policies underlying that Act.

In light of the public policy objectives inherent in encouraging private plaintiffs to seek redress of FHAA violations, it would be incongruous to allow bodies such as the HOA to enforce by contract an attorneys’ fees provision against a plaintiff who has brought an FHAA action in good faith. Such a provision, if enforced by the courts, would have the natural and counterproductive effect of dissuading individuals from filing an FHAA lawsuit when they have a reasonable basis on which to assert their claims. Based on these considerations, we conclude that the district court did not err in refusing to award attorneys’ fees and costs to the defendants based on the fee provision in the covenants. Accordingly, we affirm the district court’s judgment in the defendants’ cross-appeal.

IV.

For these reasons, we vacate the district court’s summary judgment holding on the ramp request claim, because that claim is not ripe for judicial review, and we remand the claim to the district court with instructions to dismiss this portion of the complaint without prejudice. We affirm the district court’s award of summary judgment 277*277 in favor of the defendants on the ATV request claim, and, with respect to the cross-appeal, we affirm the district court’s judgment denying the defendants’ request for attorneys’ fees and costs.

AFFIRMED IN PART, VACATED IN PART AND REMANDED

[1] We view the facts in the light most favorable to the plaintiffs as the non-moving party. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir.2011).

[2] Jacob also owns a hand-powered tricycle that he sometimes uses for recreational purposes. The plaintiffs assert, however, that the tricycle is not an appropriate substitute for an ATV because Jacob experiences pain when he begins to operate the tricycle. Jacob also was issued a driver’s license by the Commonwealth of Virginia, but the plaintiffs assert that it is not practical for him to use an automobile for short trips within the neighborhood.

[3] The plaintiffs had made verbal requests to Merritt in 2003 and 2007 seeking permission to construct the ramp, which Merritt immediately “denied” based on aesthetic concerns.

[4] Pursuant to the covenants, if the review board fails to act within the initial 30-day period, the homeowner may send a notice by certified mail to the board requesting action. If the review board fails to act within 30 days from receiving the certified notice, the request is deemed approved.

[5] The plaintiffs filed a cross-motion for partial summary judgment, which the district court denied, that is not at issue in this appeal.

[6] The district court also held that the evidence failed to show that Merritt acted with discriminatory intent in opposing the ATV request and the ramp request.

[7] Although not dispositive, we note that the defendants conceded during oral argument before this Court that they would have denied the plaintiffs’ ATV request, even had the HOA received the additional information sought.

[8] There is no dispute that Jacob is a person with a “handicap” or “disability,” within the meaning of the FHAA.

[9] Although the language of § 3604(f)(9) mentions a “dwelling [to] be made available,” the concern about a threat to the safety of others is also relevant to a reasonable accommodation claim. SeeDadian v. Village of Wilmette, 269 F.3d 831, 840 n. 6 (7th Cir.2001) (citing School Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, 288 n. 16, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987)).

[10] In Dadian, the court observed that it was the defendant’s burden to show that the requested accommodation posed substantial safety concerns. 269 F.3d at 840. We need not determine in this case which party holds the burden of proof because, as we explain later, the defendants produced substantial evidence establishing that the ATV request posed significant safety concerns, and the plaintiffs failed to rebut this evidence.

[11] The plaintiffs, however, cite the provision in the covenants that allow a homeowner to petition the HOA for permission to use an off-road vehicle such as an ATV within Lee’s Crossing. But the mere mention in the covenants of that possibility, without evidence that such petitions are sometimes or routinely granted, does not cast doubt on the safety concerns underlying the general prohibition of such vehicles on the community’s common roads. And, although the plaintiffs further assert that certain maintenance workers employed by the HOA “use four-wheeled vehicles similar to ATVs,” the only evidence on this point cited by the plaintiffs relates to a six-wheeled farm vehicle that, according to the testimony, is not similar to an ATV.

[12] The self-selective nature of the video submitted by the plaintiffs, along with its controlled environment, does not sufficiently constitute “objective corroboration” in this case. Cf. Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir.2004) (citation omitted).

[13] In light of our conclusion that the denial of the ATV request did not constitute a violation of the FHAA, we need not consider whether Merritt could be found individually liable for the HOA’s action in denying that request.

[14] Separately, in the district court, the defendants filed a bill of costs pursuant to 28 U.S.C. § 1920 and the Eastern District of Virginia’s Taxation of Costs Guidelines (the guidelines). The defendants sought in the bill of costs reimbursement of $8,413.81 for fees paid to court reporters, certain printing costs, private process server fees and delivery costs, and allowances for the appearance of certain witnesses and their travel expenses. The district court granted the bill of costs in the amount of $7,508.81, declining to award the defendants any money for private process server fees and delivery costs. The parties do not argue that the district court erred in awarding the defendants $7,508.81 and, accordingly, the court’s decision relating to the bill of costs is not at issue in this appeal.

Keywords: Civil Rights, Discrimination

Sabal Palm Conominiums of Pine Island Ridge Association v. Fischer

6 F.Supp.3d 1272 (2014)

1274*1274 Christopher Matthew Trapani, Christopher M. Trapani P.A., Cooper City, FL, for Plaintiff.

Matthew Wilson Dietz, Rachel Laura Goldstein, Disability Independence Group, Inc., Miami, FL, Herb Meyer Milgrim, The Law Offices of Herb M. Milgrim, P.A., Hollywood, FL, for Defendants.

Summary by Mary M. Howell, Esq.:

Disabled resident supplied more than sufficient evidence of disability, the need for a service animal, and the qualifications of the service animal.  The association’s demand that the animal be less than 20 pounds was unreasonable and ran afoul of the express directive in the Joint Statement on Accommodation indicating a housing provider may not impose size limits on a valid service animal.  The delay of four months in reaching a decision was unreasonable.  The president of the association personally contributed to association’s refusal to reasonably accommodate, and therefore can be liable for damages, however, the association’s attorney is not liable for the wrongdoing of his client.

**End Summary**

Second Omnibus Order

ROBERT N. SCOLA, JR., District Judge.

The underlying dispute in this case is whether Laurence and Deborah Fischer, who are residents of Sabal Palm Condominiums of Pine Island Ridge Association, Inc., may keep a service dog, Sorenson, in their condominium as a reasonable accommodation under the Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., to assist Deborah, who has multiple sclerosis and is confined to a wheelchair. Deborah requested an accommodation in October 2011 because Sabal Palm has a no-pets policy.^[1]

The Court recently entered an Omnibus Order (ECF No. 283), which resolved the pending motions to dismiss as well as some other motions. The Court now turns its attention to summary-judgment motions filed by various parties on the Fischers’ counter claims.^[2]

The Fischers brought three counterclaims against Sabal Palm and three identical third-party claims against Trapani, the attorney, and Marvin Silvergold, who was (and possibly still is) the President of Sabal Palm’s Board of Directors. (ECF No. 82.) For ease of reference the Court refers to this action as the Amended Counterclaim and to Sabal Palm, Trapani, and Silvergold collectively as Counter Defendants. Because of the Court’s ruling on various motions to dismiss, the Fischers’ only remaining claim is that Counter Defendants violated 42 U.S.C. § 3604(f)(3)(B) by refusing the Fischers’ request for an accommodation (refusal-to-accommodate claim). (See ECF No. 283.) The Fischers seek injunctive relief, compensatory and punitive damages, and their attorney fees and costs. (ECF No. 82.) With respect to this claim, each Counter Defendant moves for summary judgment while the Fischers move for summary judgment on the issue of liability. (ECF Nos. 201, 202, 225, 228.) Sabal Palm also moves for summary judgment on its declaratory-judgment action. (ECF No. 227.)

For the reasons set forth below, the Fischers’ summary-judgment motion (ECF No. 225) is granted in part and denied in part; Sabal Palm’s and Silvergold’s summary-judgment motions (ECF Nos. 202, 228) on the Amended Counterclaim and SabalPalm’s summary-judgment motion (ECF No. 227) on its declaratory-judgment action are denied; and Trapani’s summary-judgment motion 1275*1275 (ECF No. 201) on the Amended Counterclaim is granted. With respect to the Fischers’ claims, Sabal Palm and Silvergold are liable on the Fischers’ refusal-to-accommodate claim, but all claims against Trapani are gone. The Court will enter an amended scheduling order reopening the period for dispositive motions so that the Fischers can move for summary judgment on the declaratory-judgment action. In addition, the Court also denies as moot the Fischers’ motion (ECF No. 209) seeking to fix their failure to respond to the third set of Sabal Palm’s requests for admission.

Before proceeding, the Court pauses to note that, according to the Background Paper prepared for a United States Senate Informational Hearing on the subject of fake service dogs (hereafter, the “Background Paper”),^[3] there is a growing problem of people using fake service dogs, which has a “profound” and negative effect “on the disabled, business and medical communities, and the airline industry.” Background Paper at 11; accord Background Paper at 1-2, 11, 13. And after the court in Auburn Woods I Homeowners Association v. Fair Employment and Housing Commission, 121 Cal.App.4th 1578, 1582, 1584-85, 1599, 18 Cal.Rptr.3d 669 (2004),held that “a homeowner’s association had discriminated against condominium residents, a married couple who suffered from depression and other disorders, in failing to reasonably accommodate their disabilities by permitting them to keep a small companion dog … the number of housing disability cases involving companion or comfort animals as a reasonable accommodation has soared.” Background Paper at 10-11.

As the Court noted in the Omnibus Order (ECF No. 283), there is some reason to be skeptical of requests to keep a dog as an accommodation for a disability in certain cases, particularly cases where the dog assists the disabled person by rendering emotional support. But this is not such a case. It is undisputed that Deborah has a bona fide physical disability that has severe physical symptoms. And her specially trained service dog does not assist her by providing emotional support: it assists her by helping her complete physical tasks that her physical disability makes difficult. That Counter Defendants turned to the courts to resolve what should have been an easy decision is a sad commentary on the litigious nature of our society. And it does a disservice to people like Deborah who actually are disabled and have a legitimate need for a service dog as an accommodation under the FHA.

Background

Because the bulk of the analysis focuses on the Fischers’ refusal-to-accommodate claim, familiarity with the FHA provisions undergirding this claim should help the reader put the facts below into the proper legal framework. The FHA forbids 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.”^[4] 1276*1276 42 U.S.C. § 3604(f)(2). Prohibited discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a disabled person an] equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).

In October 2011, Deborah notified Sabal Palm by letter that she was bringing home a trained service dog to assist her with her tasks of daily living. (ECF No. 82-1 at 2.) She obtained the dog from Canine Companions for Independence (CCI). (Id.) In early November 2011, Sabal Palm through its attorney Trapani informed Deborah that it was treating her letter as a request for an accommodation. (ECF No. 82-2 at 2.) Despite asserting that the law authorized it to make only a “reasonable inquiry” of Deborah to determine whether she was entitled to the accommodation, Sabal Palmrequested extensive documentation. (Id.) It requested that Deborah produce copies of her medical records from all of her healthcare providers who diagnosed or treated the disability that she claimed made a service dog necessary. (ECF No. 82-2 at 2.) In addition, Sabal Palm requested that she provide “all documents relating to the nature, size and species of dog, as well as all documents regarding any training it received.” (Id. (emphasis added).)

Deborah replied to this letter in early December 2011. (ECF No. 82-4 at 2.) She provided a link to the May 2004 Joint Statement issued by the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ), entitled Reasonable Accommodations Under The Fair Housing Act (hereafter, the “Joint Statement”).^[5] (Id.) Based on the Joint Statement, she contended that she did not have to provide medical records to substantiate her accommodation request to keep Sorenson, her dog. (Id.) To show the tasks that Sorenson was trained to assist her with, she attached a letter from Lori Lindsay, the Southeast Regional Program Manager/Instructor at CCI. The letter reads thus:

This is to certify that Sorenson, tattoo number 2009218, is a Canine Companions for Independence assistance dog. He is placed with Deborah Fischer of Davie, FL. Sorenson is trained to assist Deborah by retrieving items, opening and closing doors and turning light switches on and off. Deborah and Sorenson graduated from our Southeast Regional Training Center on November 11, 2011. If you need further information, please do not hesitate to contact me at [phone number].

(ECF No. 82-3 at 2 (emphasis added).) She also attached a picture of “[her] in [her] wheelchair with [her] service dog[] to provide documentation of [her] visible handicap for any board member not familiar with the physical nature of [her] disability.” (ECF No. 82-4 at 3.)

A few days later Trapani responded by email, contending that the information Deborah provided was insufficient and asking for more:

The Association is aware of your apparent disability. However, the Ass[ociatio]n has the right and the obligation to verify that you have a medical need for a dog that weighs in excess of 20 pounds. Given that several requests were made of you provide certain specific information, and given your refusal to provide it, the Association will have no choice but to consider your request for an accommodation 1277*1277 based on the little information it has.

(ECF No. 82-5.) So the next day (December 7), Deborah provided Sabal Palm a medical history form completed by her primary-care doctor, Leslie Herzog. (ECF No. 82-6 at 2-8.) Herzog completed this form in January 2010 as part of Deborah’s application for a service animal through CCI. (Id. at 3-8.) The form provides copious information, including the following: that one purpose of the form is to determine the applicant’s (i.e., Deborah’s) suitability for having a service dog placed with her; that Herzog has been a physician to Deborah since October 2003; that Herzog last examined Deborah in January 2010 on the same day Herzog completed the form; that Deborah has multiple sclerosis; that she is confined to a wheelchair; that she suffers from a “loss of strength, balance, [and] coordination” in all of her extremities (including her hands); that she requires attendant care on a regular basis for “all aspects of daily living”; and that she is a “good candidate” for a service dog through CCI. (Id.) This information shows that Deborah is disabled, that she needs assistance with “all aspects of daily living,” and that she is a good candidate for a service dog, which clearly implies that a service dog would help with her disabilities. (See id.)

Based on this medical-history form and the letter from the dog-training professional detailing Sorenson’s training, one could not reasonably doubt that Deborah was disabled; that her disability would negatively impact her ability to use and enjoy her residence; and that having Sorenson as an accommodation would help ameliorate the effects of her disability. The tasks that Sorenson is specifically trained to assist Deborah with make sense given Deborah’s disability of multiple sclerosis and the symptoms of that disability. It is obvious that a service dog trained to open and close doors, turn on and off lights, and retrieve items could help a person (1) who suffers from a loss of strength and coordination in her arms and hands and (2) who is so disabled that she requires attendant care on a regular basis with all aspects of daily living.

Yet even after receiving information that should have been dispositive, Sabal Palm took the position in a February 2012 letter that it needed more information. (ECF No. 82-7 at 2.) Sabal Palm contended that she had not substantiated her need for a service dog: “you have not provided the Board with any medical records substantiating your need for the dog.” (ECF No. 82-7 at 2.) So later in February 2012, Deborah gave them even more medical information substantiating her need for a dog. (ECF No. 82-8 at 2-11.)

All of these additional medical records tell a consistent story: Deborah’s multiple sclerosis renders her severely disabled and requires that she have the assistance of others to maximize her functional status. The descriptions of the symptoms of her disability in these documents make it clear that a service dog trained to help retrieve items, open doors, and turn light switches on and off would help ameliorate the effects of her disability.

A “treating source neurological questionnaire” completed by Herzog in July 2009 stated that Deborah had multiple sclerosis with the following symptoms: decreased grip strength; decreased ability to perform fine manipulation, decreased ability to perform gross manipulation; gait disturbance; sensory loss; motor loss; spasticity; severe fatigue; malaise; and substantial muscle weakness on repetitive activity. (ECF 82-8 at 11.) Herzog elaborated: “Pt. [patient] with progressive exacerbations of condition — requires assistance of another with all ADLs [Activities of Daily Living] as well as with any transferring from wheelchair to another site[.] 1278*1278 Pt. [patient] has significant loss of function of upper and lower extremities, muscle control, [and] strength. She suffers from fatigue.” (Id.) The form also indicates that Deborah is wheelchair bound: “Pt [patient] is unable to ambulate or stand alone or with a handheld device. She requires the assistance of another individual to transfer from her wheelchair/scooter.” (Id.) Deborah’s grip strength was rated as 2/5, and her lower-extremity strength as 1/5. (Id.)

A “home health certification and place of care” form signed by Herzog in July 2011 diagnoses Deborah with multiple sclerosis, wheelchair dependence, and debility (feebleness, weakness, or loss of strength). (Id. at 3.) It further states that “patient cannot safely leave home without assistance. Due to [patient’s] health status, [patient] is homebound, and therefore requires nursing care in the home. Home healthcare is medically necessary to maximize [patient’s] functional status.” (Id.)

The most recent medical record is a “group disability insurance attending physician’s statement” completed by Herzog in August 2011. (Id. at 5-7.) Deborah is diagnosed with multiple sclerosis, debility, and wheelchair dependence.^[6] (Id. at 5.) Deborah has “neurological deficits of extremities,” cannot ambulate, cannot drive, “will not be able to ever return to [the] workforce,” and “needs assistance [with] ADLs [activities of daily living].” (Id. at 6.) The job category that best describes Deborah’s functional status is “sedentary,” which means that she can lift, at best, “negligible weight.”^[7] (Id.at 7.)

This still wasn’t enough for Sabal Palm. Almost two months later, Sabal Palm instituted the declaratory-judgment action. In a letter sent to the Fischers by Trapani on behalf of Sabal Palm just a few days after Sabal Palm sued, Sabal Palmrelayed, in relevant part, the following: that it is undisputed that Deborah is disabled; that it is undisputed that her request to keep Sorenson “would not involve an extraordinary expense on the part of [Sabal Palm]”; that Sabal Palm believed the records provided thus far were insufficient to entitle Deborah to a dog as an accommodation under the FHA; that Sabal Palm believed that it was within its legal rights to deny the accommodation and require Deborah to remove Sorenson; thatSabal Palm “recognize[d] that whether, and under what circumstances, accommodations to disabled persons are required is an evolving issue under the law”; that Sabal Palm therefore instructed Trapani to bring the declaratory-judgment action; and that while the lawsuit is pending, Deborah could “temporarily keep” Sorenson. (ECF No. 82-9 at 2-3.)

Analysis

A. Summary judgment standard

Summary judgment should be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Courts consider the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 of the Federal Rules of Civil Procedure requires a court to enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that 1279*1279 party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The ultimate question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. 2505.

B. The refusal-to-accommodate claim

1. Overview of the Court’s analytical approach

The Court sets forth the law more fully below, but here is a primer of the Court’s reasoning. The materials Deborah submitted to Sabal Palm before it sued were more than sufficient to show that she was entitled to keep Sorenson as a reasonable accommodation under the FHA. These materials unquestionably establish that Deborah is severely disabled, that some of the symptoms of her disability make it harder for her to grab and manipulate items with her hands than it is for a nondisabled person, and that Sorenson is trained to assist Deborah with several tasks that would require her to grab or manipulate items with her hands. Because these materials show that Deborah has a need for an accommodation and clearly connect her disability-related need to Sorenson’s skills, and because a service dog is a reasonable accommodation, Sabal Palm should have granted Deborah’s request for an accommodation.

There was no need for Sabal Palm to wait more than 4 months after receiving the first materials in December 2011 to reach a decision on the accommodation. And even after waiting four months and receiving more materials substantiating Deborah’s accommodation request, Sabal Palm got it exactly — and unreasonably — wrong. Sabal determined that it could lawfully deny her request for an accommodation and sued to get this Court to tell it whether it was right: the undisputed evidence is that Sabal Palm’s Board of Directors unanimously voted against granting Deborah’s accommodation request. (ECF No. 219-1 at 124, 175, 187.) But Sabal Palm decided to postpone enforcing this decision until a Court would rule whether its decision was correct. (ECF Nos. 219-1 at 175; 82-9 at 2-3.) No matter how one labels Sabal Palm’s conduct — whether it is referred to as delaying making a decision or whether it is referred to as making a decision but declining to enforce that decision — the Court’s outcome is the same.^[8] A reasonable factfinder would have to conclude that Sabal Palm violated § 3604(f)(3)(B) when it failed to simply grant Deborah’s accommodation request.

So this case can be decided solely based on the records that Deborah provided to Sabal Palm before Sabal Palm sued. Given the circumstances of the present case, that is as it should be. When the person requesting an accommodation provides enough reliable information such that the only reasonable conclusion is that the accommodation request should be granted, the housing provider’s denial of the request or undue delay in making a decision violates the FHA (specifically, § 3604(f)(3)(B)).

Besides, the additional discovery-related information would not change the result even were the Court to consider it. The same picture emerges after considering this information: Deborah is disabled and 1280*1280 her disability makes it more difficult for her to grab and manipulate things than for a nondisabled person. To be sure, she can do some things with her hands. But it is beyond dispute that her ability with her hands (and arms and legs) is far less than a nondisabled person’s. It is also beyond dispute that the tasks Sorenson would assist her with would help lessen this inequality, thereby making Sorenson a necessary accommodation for purposes of the FHA. Moreover, the new information does not change the conclusion that Sorenson is a reasonable accommodation. So whether the new information is considered or not, Deborah is entitled to her requested accommodation under the FHA.

2. Counter Defendants’ evidentiary challenge

Before analyzing the merits of the Fischers’ refusal-to-accommodate claim, the Court must address an evidentiary issue. Counter Defendants appear to argue that the Court cannot consider the medical records Deborah provided before Sabal Palm sued because the records are not properly authenticated. (ECF Nos. 263 at 3; 269 at 4.) But in other places, Counter Defendants assert that these same records are “true and correct.” (ECF Nos. 263 at 5-6; 269 at 5-6.) Even if Counter Defendants have not effectively conceded that these records are what they purport to be, the Court can still consider them on summary judgment. Unauthenticated hearsay statements may be considered on summary judgment when the statements could be “reduced to admissible evidence at trial or reduced to admissible form.” Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). Leslie Herzog, Deborah’s treating physician, signed the forms and would be able to authenticate them or introduce the same evidence at the trial through her testimony. So the Court can and will consider these records in ruling on the various summary-judgment motions.

3. The merits of the claim against Sabal Palm

The Fischers claim that Sabal Palm, Silvergold, and Trapani all failed to reasonably accommodate Deborah’s disability by refusing her request to allow her service dog, Sorenson, to live with her.^[9] The Court agrees with respect to Sabal Palm and Silvergold. The Court grants the Fischers summary judgment against these Defendants and denies them summary judgment against Trapani. Trapani’s summary-judgment motion is granted; Silvergold’s and Sabal Palm’s motions are denied. Because determining whether Silvergold and Trapani are liable presents additional issues, the Court discusses their liability after analyzing Sabal Palm’s.

The FHA forbids 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). “Such discrimination includes `a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.'”Overlook Mutual Homes, Inc. v. Spencer, 415 Fed.Appx. 617, 620-21 (6th Cir.2011)(quoting 42 U.S.C. § 3604(f)(3)(B)). “To prevail on a[§] 3604(f)(3)(B) claim” — that is, a claim that a housing provider refused to reasonably accommodate a disability — “a plaintiff must establish that (1) he is disabled or handicapped within the meaning of the 1281*1281 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.”Hawn v. Shoreline Towers Phase 1 Condominium Association, Inc., 347 Fed.Appx. 464, 467 (11th Cir. 2009). An accommodation can also be constructively denied by delaying making the decision. Overlook, 415 Fed.Appx. at 620; Joint Statement at 9, 11. The Court addresses each of the four elements in turn.

It is undisputed that Deborah is disabled within the meaning of the FHA. The first element of her claim is satisfied.

The second element is also met: in requesting that she be allowed to keep Sorenson and be exempted from Sabal Palm’s no-pet policy, Deborah requested a reasonable accommodation. An accommodation is not reasonable “if [1] it would impose an undue financial and administrative burden on the housing provider or [2] it would fundamentally alter the nature of the provider’s operations.”^[10] Joint Statement at 7;accord Schwarz v. City of Treasure Island, 544 F.3d 1201, 1220 (11th Cir.2008)(determining that an accommodation is unreasonable “if it either [1] imposes undue financial and administrative burdens on a grantee or [2] requires a fundamental alteration in the nature of the program” (internal quotation marks omitted) (brackets in original)). Because Sabal Palm admits that it is “undisputed that [Deborah’s] request for an accommodation would not involve an extraordinary expense on the part of [Sabal Palm],” the Court need consider only whether allowing Deborah to keep Sorenson would fundamentally alter the nature of Sabal Palm’s program. (ECF No. 82-9 at 2.) “A fundamental alteration is a modification that alters the essential nature of a provider’s operations.” Joint Statement at 8 (internal quotation marks omitted);accord Schwarz, 544 F.3d at 1220 (“A proposed accommodation amounts to a `fundamental alteration’ if it would eliminate an essential aspect of the relevant activity.”). Sabal Palm is a condominium association. Its raison d’être is to provide housing. Allowing a disabled resident to keep a service dog would not fundamentally alter Sabal Palm because Sabal Palm would still be able to offer housing. Sabal Palm does not even argue to the contrary.

The governing regulation buttresses this conclusion. The companion regulation to 42 U.S.C. § 3604(f)(3)(B) is 24 C.F.R. § 100.204(a), and this regulation specifically provides that it is unlawful for a housing provider with a no-pets policy to refuse to permit a blind person to live in a dwelling unit with a seeing-eye dog. 24 C.F.R. § 100.204(b)(1). Because an essential element of both § 3604(f)(3)(B) and § 100.204(a) is that the accommodation be reasonable, it follows that allowing a disabled person to keep a dog in a housing unit with a no-pets policy is a reasonable accommodation.

The undisputed facts also satisfy the third element of necessity as a matter of law. A housing provider is required to make a reasonable accommodation “only if it `may be necessary to afford [a disabled resident of Sabal Palm an] equal opportunity to use and enjoy a dwelling.'” Schwarz, 544 F.3d at 1225 (quoting 42 U.S.C. § 3604(f)(3)(B)).^[11] “To show that a 1282*1282 requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability.” Joint Statement at 6.

No rational factfinder could dispute that Sorenson is necessary for Deborah to have an equal opportunity to use and enjoy her dwelling. The symptoms of her disability make it difficult for her to grab and manipulate items and they require that she have assistance in all activities of her daily life. So it follows that a service dog trained to retrieve items, open and close doors, and turn light switches on and off would help alleviate some of the negative effects of her disability. Because Deborah provided unrebutted and undisputed medical and dog-training records substantiating her need for a service dog with Sorenson’s training, necessity exists as a matter of law.

One additional argument under necessity deserves attention. In addition to arguing that a service dog is not a reasonable or necessary accommodation, Sabal Palm also appears to argue that even if a dog is reasonable or necessary for Deborah, a dog over 20 pounds is not reasonable or necessary. (See ECF No. 129 at 6-7; ECF 82-9 at 2.) This argument is unpersuasive. Sabal Palm offers no evidence that a smaller dog could have met Deborah’s needs. A dog under 20 pounds is a small dog. So given the height of the average door handle and light switch, a small dog will have a harder time opening and closing doors and turning light switches on or off. And there will be some items a small dog cannot retrieve because of the item’s height that a bigger dog would be able to retrieve. Moreover, given the height of a person in a power wheelchair, a smaller dog will have a harder time retrieving items effectively for the disabled person.

This is not just commonsense — though it most certainly is that. Deborah also wrote in an email to Trapani that, “regarding the size of my dog — the dog is matched to the height of my chair, which enables him to assist me better with his jobs, i.e. picking up items I have dropped.” (ECF No. 82-6 at 2.) She also attached a picture of her in her power wheelchair with Sorenson. (ECF No. 82-4 at 3.) In the picture, the dog’s size fits well with the height of her in the wheelchair. (See id.)

Deborah’s statement regarding Sorenson being sized appropriately for her wheelchair is credible. It accords with common sense. And the picture she provided to Sabal Palm supports her statement.

But the most fundamental problem with the argument that a dog over 20 pounds was not necessary is that it gets the law wrong. Sabal Palm’s implied argument — that even if a dog is reasonable or necessary for Deborah, a dog 20 pounds or under would suffice — is akin to an argument that an alternative accommodation (here, a dog under 20 pounds), would be equally effective in meeting Deborah’s disability-related needs as a dog over 20 pounds. The Joint Statement’s comments on alternative accommodations proposed by the housing provider are highly persuasive1283*1283 and useful in evaluating this argument.

There may be instances where a provider believes that, while the accommodation requested by an individual is reasonable, there is an alternative accommodation that would be equally effective in meeting the individual’s disability-related needs. In such a circumstance, the provider should discuss with the individual if she is willing to accept the alternative accommodation. However, providers should be aware that persons with disabilities typically have the most accurate knowledge about the functional limitations posed by their disability, and an individual is not obligated to accept an alternative accommodation suggested by the provider if she believes it will not meet her needs and her preferred accommodation is reasonable.

Joint Statement at 8 (emphasis added). Since a dog over 20 pounds is a reasonable accommodation, Deborah’s (commonsense) belief that a dog over 20 pounds — in particular, a dog of Sorenson’s size — is better able to assist her renders the need to evaluate alternative accommodations unnecessary as a matter of law.^[12] That a blind person may already have a cane or that he or she could use a cane instead of a dog in no way prevents the blind person from also obtaining a seeing-eye dog as a reasonable accommodation under the FHA. A contrary result is absurd.

The point is underscored by the April 2013 HUD Statement entitled Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs (hereafter, the “HUD Statement”).^[13] That Statement provides that “[b]reed, size, and weight limitations may not be applied to an assistance animal.” HUD Statement at 3.

The final element is whether Sabal Palm constructively denied Deborah’s request to keep Sorenson. Here again, the evidence is so one-sided that Deborah prevails as a matter of law.

To understand why requires a close analysis of Overlook, a case with a procedural posture similar to the present case analyzing this precise issue (i.e., constructive denial). Although Overlook rejected the refusal-to-accommodate claim at issue in that case, the reasoning of Overlook demonstrates that the Fischers’ prevail on their claim as a matter of law.

In Overlook, the Spencer family resided in Overlook, which had a no-pets policy. 415 Fed.Appx. at 618. The Spencers adopted a dog, Scooby, in 2005, and though they admitted that Scooby was not originally prescribed by a medical professional, they maintained that Scooby had a calming effect on their daughter, Lynsey, who suffered from anxiety disorder. Id. In 2007, 1284*1284 the Spencers formally requested that they be allowed to keep Scooby as an accommodation under the FHA. Id. Following this request, a series of letters was exchanged between Overlook and the Spencers,^[14]in which Overlook asked for information documenting Lynsey’s disability and her need for Scooby. The Spencers provided some of the information Overlook requested. Id. at 618-19. More specifically, on the eve of the suit, the Spencers had provided the following information: “a letter from Lynsey’s psychologist, stating that she had evaluated Lynsey and recommended a service dog”; a form providing the name of Lynsey’s psychologist; an explanation that Scooby was not a specially trained service animal, but rather a companion animal that provided emotional support and companionship; statements from the Spencers themselves or other nonmedical personnel that Lynsey suffers from “anxiety disorder, neurological & emotional conditions” that affect “her ability to care for herself and learn, both of which are … recognized as major life activities”; and that Scooby “ameliorates the effects of Lynsey’s condition through its presence and interaction with her.” Id.(internal quotation marks omitted). By the time Overlook filed suit, it had requested but still not received the following information: “a diagnosis of Lynsey’s medical condition”; contact information for Lynsey’s medical providers; “a description of the treatment Lynsey was receiving”; and Lynsey’s school and medical records by way of a signed release that would allow Overlook to obtain these records. See id. at 618-19. At various points, Overlook also requested a description of the dog’s training and of the services it provided, but information responsive to this request was furnished when the Spencers informed Overlook that Scooby had received no special training and that he ameliorated the effects of Lynsey’s condition by being present and interacting with her. See id.

Overlook did not make an official decision on the Spencers’ accommodation request, nor did it begin eviction proceedings; it instead sued “for a declaratory judgment that it was not required to make the requested accommodation.” Id. at 619. In response, the Spencers counterclaimed, alleging, among other things, that Overlook had refused to reasonably accommodate Lynsey’s disability in violation of the FHA. Id.The case proceeded to trial and after the evidence had been presented, the district court entered judgment as a matter of law for Overlook on the Spencers’ refusal-to-accommodate claim, reasoning that “they had presented insufficient proof that Overlook had actually denied their request for a reasonable accommodation.” Id. at 620.

On appeal, the Sixth Circuit framed the question thus: “whether the district court erred in holding that, as a matter of law, Overlook did not constructively deny the request for a reasonable accommodation by delaying making a decision on the request, requesting school and medical records, and filing suit for a declaratory judgment.” Id. at 620. Put more simply, the issue was “whether a reasonable jury could find that Overlook `refused’ to make the accommodation requested.” Id. at 621.

The Court looked at three factors in analyzing the issue: (1) the extent to which the housing provider delayed and obstructed the process of negotiation over the requested accommodation by filing the 1285*1285 lawsuit; (2) the state of the law at the time the suit was filed; and (3) whether the housing provider’s delay in ruling on the accommodation request had the effect of depriving the disabled person of the accommodation. See id. at 621, 623. In setting forth the principles relevant to the first factor, the Court relied heavily on the Joint Statement. Id. at 621-22. Because those principles are directly relevant to the present case, the Court quotes the Sixth Circuit at length:

[A] housing provider “has an obligation to provide prompt responses to reasonable accommodation requests. An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation.” Joint Statement at 11. Moreover, the Joint Statement states that a “failure to reach an agreement on an accommodation request is in effect a decision by the provider not to grant the requested accommodation.” Id. at 9.

A housing provider, however, is entitled to seek information from an allegedly disabled person in order to establish the existence of the disability and the necessity of the accommodation. According to the Joint Statement,

In response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.

Id. at 13. This inquiry need not be highly intrusive. “In most cases, an individual’s medical records or detailed information about the nature of a person’s disability is not necessary….” Id. at 13-14.

Overlook, 415 Fed.Appx. at 621-22 (emphasis added).

With respect to the adequacy of the information that the Spencers provided to support their accommodation request, the Court’s reasoning was nuanced: “Overlook was entitled to additional information,” but “[a]t the same time, Overlook was probably not entitled to the broad access to confidential medical and school records it demanded.” Id. The additional, reliable information that Overlook was entitled to receive related to (a) verifying that Lynsey was disabled and (b) showing the relationship between Lynsey’s disability and the need for the requested accommodation. See id. (For ease of reference, the Court will refer to information relating to these two categories as qualifying-disability information and nexus information, respectively.) Because Overlook had never received reliable information relating to either of these two categories, Overlook was not able “to verify that a qualifying disability existed or that the proposed accommodation was related to the disability.” Id.

The letter from Lynsey’s treating psychologist did not suffice because it “merely stated that Lynsey was receiving `psychological counseling services’ and required a `service dog.'” Id. Information from a treating psychologist would ordinarily be reliable. See Joint Statement at 13-14 (“A doctor or other medical professional … who is in a position to know about the individual’s disability may also provide verification of a disability.”). But the psychologist’s letter in Overlook did not state that Lynsey suffered from a disability — let alone identify what that disability was — and it did not show the relationship between the assistance the dog could provide and the unspecified problems for which Lynsey was receiving counseling. See Overlook,415 Fed.Appx. at 622. (Another 1286*1286 way to express this last point is that the letter did not show how or explain why a service dog helped with Lynsey’s unspecified problems.) So it did not provide any qualifying-disability and nexus information. Id.

The court also found insufficient the statements from the Spencers and McCarthy, the president of the local fair-housing center: “[e]ven after receiving [this information], Overlook was entitled to additional information.” Id. at 622. Unlike the information from the treating psychologist, who provided no qualifying-disability and nexus information, the information provided by the Spencers and McCarthy was qualifying-disability and nexus information, and it was specific and detailed: they informed Overlook that Lynsey suffered from and was being treated for anxiety disorder, neurological conditions, and emotional conditions; that these ailments impacted Lynsey’s ability to care for herself and learn; that Scooby provided emotional support and companionship to Lynsey; and that Scooby ameliorated the effects of these conditions by being present and interacting with Lynsey. See id. at 618-19, 622. So the court did not find this information inadequate because it lacked detail or specificity. See id. at 622. Indeed, the court adopted the principles from the Joint Statement that a housing provider’s inquiry to obtain reliable qualifying-disability and nexus information “need not be highly intrusive” and that, “[i]n most cases, an individual’s medical records or detailed information about the nature of a person’s disability is not necessary.” Id. (internal quotation marks omitted) (relying on Joint Statement at 13-14.) And since the information was manifestly qualifying-disability and nexus information, the Court could not have found that the Spencers failed to provide information on these subjects to Overlook. See id.

The only remaining basis on which the Court could reject this information as it did would be that the information was not sufficiently reliable. Neither the Spencers nor McCarthy were medical or dog-training professionals. That matters because Lynsey’s alleged disability was an internal condition that would not be readily apparent to a lay observer. So the Spencers’ and McCarthy’s statements about the disability Lynsey allegedly suffered from and about how and why Scooby helped ameliorate this disability were unreliable in light of the facts. They were lay observers who were not qualified to diagnose Lynsey or pronounce how a dog helped her.

The nature of Lynsey’s putative disability and the Joint Statement buttresses this conclusion. Lynsey’s disability was not obvious. Unlike a person with a physical disability, such as someone confined to a wheelchair, Lynsey’s disability was internal. Similarly, her need for the requested accommodation was not readily apparent. The Joint Statement provides that when a disability is readily apparent, the housing provider may not request additional information about the requestor’s disability. Joint Statement at 12-13. So too with the requestor’s disability-related need for the accommodation. Id. That is, if it is readily apparent how the requested accommodation would help alleviate the difficulties posed by the disability, then the provider may not request additional information concerning the need for the requested accommodation. Id. It is only when either the requestor’s disability or the disability-related need for the accommodation are not obvious that the provider may request reliable qualifying-disability or nexus information. Id. And even then, the provider’s queries are limited to precisely what is not obvious. An example in the Joint Statement illustrates the point:

A rental applicant who uses a wheelchair advises a housing provider that he 1287*1287 wishes to keep assistance dog in his unit even though the provider has a “no pets” policy. The applicant’s disability is readily apparent but the need for an assistance animal is not obvious to the provider. The housing provider may ask the applicant to provide information about the disability-related need for the dog.

Id. at 13. This example is contained in the Joint Statement’s answer to the following question: “[w]hat kinds of information, if any, may a housing provider request from a person with an obvious or known disability who is requesting a reasonable accommodation?” Joint Statement at 12. Moreover, the rule Overlook borrowed from the Joint Statement providing that a housing provider may request reliable qualifying-disability and nexus information, as well as information “describ[ing] the needed accommodation,” is predicated on the disability in question not being readily apparent, just as the disability in Overlook was. That is so because the rule is provided in the Joint Statement’s answer to this question: “[i]f a disability is not obvious, what kinds of information may a housing provider request from the person with a disability in support of the requested accommodation?” Joint Statement at 13 (emphasis added).

Since neither Lynsey’s disability nor her need for a dog were readily apparent, Overlook was entitled to seek reliable qualifying-disability and nexus information. But even then, the Sixth Circuit reasoned that “Overlook was probably not entitled to the broad access to confidential medical and school records it demanded.” Overlook,415 Fed.Appx. at 622. Adding teeth to this conclusion, the Sixth Circuit recognized that “[i]n some circumstances, a housing provider that refuses to make a decision unless a requestor provides unreasonably excessive information could be found to have constructively denied the request by `stonewalling’ and short-circuiting the process.” Id. Finding that a provider constructively denied a requested accommodation on this basis in turn flowed from the more general principle that “injury may result when a housing provider unreasonably delays responding to a request for an accommodation and that such delay may amount to a denial.” Id. The court’s discussion of this particular manner of concluding that a provider constructively denied a requested accommodation was not theoretical. The court concluded its analysis of the first factor — “the extent to which Overlook delayed and obstructed the process of negotiation over the requested accommodation by filing the lawsuit” — by noting that “were it not for additional factors that are present here, the Spencers would have presented a jury issue as to whether Overlook `denied’ their request.” Id.

Moving onto the second factor — “the state of the law at the time Overlook filed its complaint” — the court concluded that this factor weighed in favor of concluding that Overlook had not constructively denied the Spencers’ request to keep Scooby. Id. at 622-24. This factor analyzes whether the state of the law justified the housing provider in turning to the courts for clarification rather than simply responding to the request. Id. The court focused on the legal issue that Overlook argued was in its favor: namely, whether a companion animal that lacks training could be a reasonable accommodation under the law. Id. at 619, 622-23. The district court concluded that because the law on this issue favored Overlook, “Overlook was well within its rights to get a court ruling on whether a dog that is the subject of a reasonable accommodation can be any companion animal.” Id. at 622 (brackets, ellipses, and internal quotation marks omitted). In reaching this conclusion, the district court had relied on a case that “held that `evidence of individual training’ is required to 1288*1288show that a `service animal’ is a reasonable accommodation under the FHA.” Id.(quoting Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245, 1256-57 (D.Haw.2003), aff’d on other grounds sub nom. DuBois v. Association of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 n. 2 (9th Cir.2006)). Other cases cut against this holding, but the Sixth Circuit did “agree with the district court that there was at least some dispute in the law as to whether a `service animal’ required training and whether it had to do more than provide comfort and companionship to qualify as an accommodation.” Id. at 623.

But the “fact that the law is not entirely clear concerning a requested accommodation will not always justify a housing provider’s filing suit rather than responding to a request.” Id. Because “[a]ccommodations are often highly specific,” there will often be “no case law that indicates a particular accommodation is required.” Id. So merely “claiming that the law is `unclear’ should not entitle the provider to delay and obstruct the accommodation process.” Id. But in Overlook, “Overlook could point to case law indicating that it was not required to treat Scooby” — a companion dog with no special training — “as an accommodation.” Id. This “weigh[ed] against the reasonableness of a jury finding that its actions in seeking additional information and turning to the court for clarification constituted a denial of the Spencers’ request.” Id.

The third factor — whether the housing provider’s delay in ruling on the accommodation request had the effect of depriving the disabled person of the accommodation — similarly weighed in favor of concluding that Overlook had not constructively denied the Spencers’ request. See id. at 621, 623. Although Overlook did not grant the Spencers a temporary exemption from its no-pets policy, “the more important fact” was that Overlook allowed Scooby to stay with the Spencers throughout the entire dispute. Id. at 623. And it never attempted to evict the Spencers or punish them for keeping Scooby. Id. So “Overlook’s actions did not deny the Spencers the benefit of Scooby’s company.” Id.

In concluding, the court made another important point: “[a]s a general rule, housing providers should cooperate with residents to resolve disputes over reasonable accommodations rather than turning to the courts.” Id. But because the second and third factors weighed against finding a constructive denial, the court held that Overlook’s actions “did not constitute a denial of [the Spencers’] request for an accommodation.” Id. at 624.

Now that the Court has explicated the three Overlook factors, the Court applies them to the present case. In analyzing the first factor — namely, the extent to which the housing provider delayed and obstructed the process of negotiation over the requested accommodation by filing the lawsuit — Overlook examined whether the information that the Spencers provided Overlook was sufficient for Overlook to make a decision about the requested accommodation. Id. at 622. The Fischers had certainly provided Sabal Palm enough information for it to rule on (and grant) their request. It bears emphasizing that unlike Lynsey, who had a mental and emotional disability that was not readily apparent, Deborah Fischer had a physical disability that was readily apparent because she was confined to a wheelchair. And the rule that Overlook adopted from the Joint Statement about the reliable information a housing provider may request in response to an accommodation request was predicated on the requestor having a disability that was not readily apparent, as was the case in Overlook. See id. at 621; Joint Statement 1289*1289 at 13. So it is doubtful, to say the least, that Sabal Palm was entitled to the detailed medical information it requested concerning Deborah’s physical disability.

But even setting aside that problem with Sabal Palm’s actions and assuming thatSabal Palm was entitled to this medical information, Deborah provided it before Sabal Palm sued. In December 2011, she gave Sabal Palm the following: (1) the medical-history form that Herzog, her primary-care doctor, completed as part of her application for a service animal through CCI, (ECF No. 82-6 at 82-6 at 2); and (2) the letter from the dog-training professional at CCI describing the tasks Sorenson was trained to help Deborah with. The medical-history form unquestionably established that Deborah was disabled within the meaning of the FHA, and it further showed that her symptoms included a loss of strength, balance, and coordination in all of her extremities, including her hands. It is self evident that a person with such a severe disability and with these symptoms would have difficulty grabbing and manipulating objects — abilities that are also self-evidently necessary to open and close doors, turn lights on and off, and retrieve items. Since the dog-training letter established that Sorenson was trained to help Deborah open and close doors, turn lights on and off, and retrieve items, Sabal Palm had more than enough information to easily conclude that Deborah was entitled to the accommodation.

This is so even though none of the records the Fischers provided to Sabal Palm before it sued contain an express prescription, suggestion, recommendation, or other statement from a healthcare provider that Deborah needs a dog to assist her with her disability. As noted previously, the medical-history form completed by Herzog implies that Deborah needs a service dog because Herzog says that Deborah would be a “good candidate” for a service dog through CCI. (ECF No. 82-6 at 3-8.) This implication is not foreclosed by the Fischers’ failure to respond to Sabal Palm’s Third Request for Admissions. But even if it were, that would not matter. The implication is not necessary in order to conclude that Fischer is entitled to the accommodation under the FHA. The parties’ dispute about whether the Fischers can fix their failure to respond to Sabal Palm’s Third Request for Admissions is immaterial. The Fischers’ Motion (ECF No. 209) on this issue is denied as moot.

Sabal Palm points to no law that in order for Deborah to be entitled to the accommodation, she must be able to point to an express statement from a healthcare provider that she needs a dog to assist her with her disability. That’s because there is none. Although such a statement would suffice, it is not required. The Joint Statement requires that a disabled person simply “show[] the relationship between the person’s disability and the need for the requested accommodation.” Joint Statement at 13. As the present case demonstrates, that showing could be made without an express statement from a healthcare provider that the disabled person needs the dog. For example, if there is information connecting the service animal’s training with the symptoms of the person’s disability, then that would suffice: documentation of the disability-related need for the service animal “is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance.” HUD Statement at 4 (emphasis added). Even more explicit, the HUD Statement provides that a housing provider that has received an accommodation request must consider, among other things, this question: “Does the person making the request have a disability-related need for an assistance animal? In other 1290*1290 words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability… that alleviates one or more of the identified symptoms or effects of a person’s existing disability.” Id.at 3 (emphasis added). The information that Deborah provided to Sabal Palm in December 2011 shows that Sorenson is trained to perform tasks that alleviate one or more of her identified symptoms. Sabal Palm should therefore have granted her the accommodation in December 2011.

Yet even after receiving information that should have been dispositive, Sabal Palm took the legally unsupportable position in a February 2012 letter that it needed more information. Sabal Palm contended that she had not substantiated her need for a service dog: “you have not provided the Board with any medical records substantiating your need for the dog.” (ECF No. 82-7 at 2.) So later in February 2012, Deborah gave them even more medical information substantiating her need for a dog. (ECF No. 82-8 at 2-11.)

All of these additional medical records tell a consistent story: Deborah’s multiple sclerosis renders her severely disabled and requires that she have the assistance of others to maximize her functional status. The descriptions of the symptoms of her disability in these documents make it clear that a service dog trained to help retrieve items, open doors, and turn light switches on and off would help ameliorate the effects of her disability.

This information conclusively demonstrates that, contrary to Sabal Palm’s contention, Deborah had provided Sabal Palm with medical records substantiating her need for a dog that could retrieve items, open doors, and turn light switches on and off.^[15] She was disabled, needed assistance with all activities of daily living, and had specifically shown that her ability to grab and manipulate items — abilities that are necessary to retrieve items, open doors, and turn light switches on and off — were severely impacted by her disability. Moreover, her being confined to a wheelchair would also sometimes prevent her from retrieving items (for example, items on the floor). And since she had provided evidence that Sorenson’s training was specifically designed to help with these activities, she had amply established her disability-related need for Sorenson.

Given the dispositive nature of the information that it had received as far back as early December 2011, Sabal Palm’s demands for even more information were unreasonable. As Overlook concluded, an inquiry seeking qualifying-disability information, nexus information, or information describing the needed accommodation, “need not be highly intrusive.” Sabal Palm had already received detailed — and in the case of the medical records, confidential — information addressing these three points. Asking for even more medical records providing nexus information was clearly “highly intrusive,” and the intrusion was not necessary. So the circumstances of the present case place it squarely within the following principle formulated byOverlook: “[i]n some circumstances, a housing provider that refuses to make a decision unless a requestor provides unreasonably excessive information could be found to have constructively denied the request by `stonewalling’ and short-circuiting1291*1291 the process.” Overlook, 415 Fed.Appx. at 622. In sum, the first factor overwhelmingly weighs in favor of concluding that Sabal Palm constructively denied Deborah’s requested accommodation.

The second Overlook factor — the state of the law at the time the suit was filed — also weighs in favor of concluding that the Fischers prevail on their refusal-to-accommodate claim as a matter of law. This factor analyzes whether the state of the law justified the housing provider in turning to the courts for clarification rather than simply responding to the request. Id. at 622-24. Based on Sabal Palm’s Complaint and a letter from Trapani to the Fischers sent just five days after Sabal Palm sued, Sabal Palm believed at the time it filed suit that the law showed the following: thatSabal Palm was entitled to all of the medical records it requested in order to properly evaluate the accommodation; that it was within its rights to deny the accommodation because the Fischers failed to provide all the requested medical records; and that the records produced do not show that a dog in excess of 20 pounds is a reasonable or necessary accommodation. (See ECF No. 1 at ¶¶ 24-25, 28, 32, 36-37; ECF No. 82-9 at 2.)^[16] Because Sabal Palm is mistaken about the law, this factor does not favorSabal Palm. The Court analyzes each of Sabal Palm’s beliefs about the law in turn.

Sabal Palm’s first two beliefs — that it was entitled to all of the medical records it requested and that it was within its rights to deny Deborah the dog because she failed to provide all the requested medical records — must be reframed to properly analyze them. Because Deborah had provided Sabal Palm with medical and dog-training records before Sabal Palm sued, the question becomes whether the law supports Sabal Palm’s contention that it was entitled to additional records and that it could deny her request because she failed to provide these additional records. As discussed above, the records Deborah provided were more than sufficient to verify that she had a disability that lay observers could see with their own eyes,^[17] that some of the symptoms associated with her disability would make it difficult for her to pick up and manipulate items, and that Sorenson’s training (retrieving items, opening and closing doors, and turning light switches on or off) would help alleviate some of the negative effects of her symptoms. Because Sabal Palm already had enough qualifying-disability and nexus information, Sabal Palm’s request for additional records was excessive and unnecessary. The law is squarely against Sabal Palm on these beliefs.

So too with Sabal Palm’s final belief-namely, that under the governing law, the records produced do not show that a dog in excess of 20 pounds is a reasonable or necessary accommodation. The Court has already analyzed reasonableness and necessity and found that there is no dispute 1292*1292 that the Fischers prevail on these elements as a matter of law.

In sum, the law at the time Sabal Palm sued is overwhelmingly in Deborah’s favor. The second Overlook factor strongly weighs in favor of concluding that Sabal Palm constructively denied the Fischers’ requested accommodation.

The third Overlook factor — whether the housing provider’s delay in ruling on the accommodation request had the effect of depriving the disabled person of the accommodation — is the only factor that favors Sabal Palm. In its first communication in November 2011, Sabal Palm told the Fischers that they could “temporarily keep” Sorenson while Sabal Palm evaluated their accommodation request. (ECF No. 82-2 at 3.) Similarly, in the April 2012 letter just a few days after Sabal Palm brought the declaratory-judgment action, Sabal Palm told the Fischers that they could “temporarily keep” Sorenson while the lawsuit is pending. (ECF No. 82-9 at 3.) But in that same letter, Sabal Palm told them that it believed that it could lawfully deny their requested accommodation and require them to remove their dog. (Id. at 2.) So the Fischers have had to endure for almost two years knowing that Sabal Palm believed it could — and likely would, if given the opportunity — deny their request and force them to remove their dog. Because of this and because the other two factors strongly weigh in favor of concluding that Counter Defendants constructively denied the Fischers’ accommodation request, the Court holds that the evidence is so one-sided that the Fischers prevail as a matter of law.

Sabal Palm unreasonably delayed ruling on the Fischers’ accommodation request and therefore constructively denied it. By early December 2011 at the latest, Sabal Palm had received more than enough information to not just rule on the Fischers’ request, but to grant it.^[18] But instead of doing that, Sabal Palm refused to make a decision until the Fischers met its unreasonable and invasive demands for more information. And even when the Fischers provided more detailed medical information in February 2012, Sabal Palm still did not make a decision — let alone the legally correct decision. It instead sued in April 2012, and its Amended Complaint makes plain that Sabal Palm still thinks that it is entitled to even more information from Deborah. It characterized the documents she had provided as “minimal,” and noted that she failed to provide all of the records it requested. (ECF No. 129 at 4-6 (emphasis added).) Sabal Palm’s position is absurd. It should have granted Deborah’s accommodation request shortly after receiving the records in December 2011.

To be sure, some delay between receiving the records and making a decision is inevitable. A housing provider will often and quite reasonably prefer to wait to consider a request along with supporting documents at the next upcoming board meeting. But in the present case, the 1293*1293 board did consider Deborah’s accommodation request and instead of granting it, decided to sue so that a Court could bless the decision Sabal Palm itself had reached: namely, that Deborah’s request should be denied. (ECF No. 219-1 at 124, 137, 175.) When a requestor has provided enough information such that the only reasonable decision is to grant the request, a housing provider violates § 3604(f)(3)(B) by refusing to grant the request, demanding more information, and suing, even if the housing provider allows the requestor to temporarily keep the service animal while the lawsuit is pending.

A contrary conclusion leads to absurd results. For example, say a blind person requests to be allowed to keep a seeing-eye dog and objects to the housing provider’s request for medical records proving that the person is blind and prescribing a seeing-eye dog. Under Sabal Palm’s logic, the housing provider would not violate § 3604(f)(3)(B) when it sued to have a court determine whether it was entitled to the records it requested, so long as the housing provider allowed the blind person to temporarily keep the service animal while the suit is pending. That is not the law.

Or consider this case: a housing provider has enough information to grant a request — indeed, the information it has makes granting the request the only reasonable choice — but instead it sits on its laurels indefinitely, all the while demanding more information and only allowing the requestor to temporarily keep the service animal while it considers the request. Under Sabal Palm’s logic, the housing provider would not have constructively denied the request even though the requestor must live with the annoyance and harassment of requests for additional information and with the uncertainty of whether their request would be granted. The right to a valid and reasonable accommodation under the FHA necessarily implies that housing providers must make a decision. They cannot delay indefinitely.

Because it is clear in the present case that the request should be granted, continuing to delay for months and asking for even more information amounts to a constructive denial. The Fischers are therefore entitled to summary judgment on the issue ofSabal Palm’s liability.^[19] The case will proceed against Sabal Palm on the issue of damages.

4. The merits as to Silvergold

The only remaining question with respect to Silvergold’s liability is whether his own actions make him liable as a matter of law. They do.

Individual board members or agents such as property managers can be held liable when they have “personally committed or contributed to a Fair Housing Act violation.”Falin v. Condominium Association of La Mer Estates, Inc., 2011 WL 5508654, at *3 (S.D.Fla. Nov. 9, 2011) (Cohn, J.); accord Housing Opportunities 1294*1294 Project For Excellence, Inc. v. Key Colony No. 4 Condominium Association, Inc., 510 F.Supp.2d 1003, 1013-14 (S.D.Fla.2007). There is no genuine dispute that Silvergold personally contributed to Sabal Palm’s refusal to reasonably accommodate Deborah. Silvergold testified in his deposition that, as the President of Sabal Palm’s Board of Directors, he voted against Deborah being allowed to have Sorenson and to sue Deborah. (ECF No. 219-1 at 175.) Since Sabal Palm’s refusal to simply grant her request to keep Sorenson is the basis of her refusal-to-accommodate claim, it follows that Silvergold personally contributed to the FHA violation. He therefore violated the FHA himself. The Court grants the Fischers summary judgment against Silvergold on the issue of liability. The case will proceed against him on the issue of damages.

5. The merits as to Trapani

The attempts to hold Trapani liable for Sabal Palm’s decision to constructively deny Deborah’s requested accommodation are unavailing. The Fischers do not cite to a case where an attorney has been liable for a client’s violation of the FHA. And the Court has not found such a case. Quite the contrary, the Court did find one case in which the Court rejected the attempt to hold an attorney liable under the FHA: “Plaintiff has asserted no legal theory by which an attorney representing a client in an eviction proceeding can be subjected to civil liability for discrimination under the FHA. `A lawyer, like other agents, is not as such liable for acts of a client that make the client liable.'” Givens v. Wenker, 2012 WL 1680099 at *7 (S.D.Ohio May 14, 2012) (quoting Restatement (Third) of the Law Governing Lawyers, Section 56 cmt. c (2000)).

The attempts to hold Trapani liable fail for a similar reason. It is undisputed that Trapani is just Sabal Palm’s attorney. (ECF No. 200 at 3.) He has no authority to vote — and did not in fact vote — on Sabal Palm’s decision to sue Deborah instead of simply granting her requested accommodation. (Id. at 3-4.) The decision to not affirmatively allow Deborah to keep Sorenson as an accommodation — i.e., constructive denial through delay and unreasonable requests for information — is the basis for Sabal Palm’s liability. Sabal Palm had more than enough information to make it clear that Deborah was legally entitled to keep Sorenson, but Sabal Palm did not grant her accommodation request. Trapani had nothing to do with that decision. Even if he rendered advice that Deborah was either not or likely not entitled to an accommodation — advice that admittedly would be very bad — that advice is not unlawful discrimination. That occurred when Sabal Palm acted on that advice and voted to not grant Deborah’s accommodation request. Because Trapani had nothing to do with that vote and had no authority over Sabal Palm’s decision, the unlawful action was fundamentally Sabal Palm’s, not Trapani’s. Silvergold, on the other hand, affirmatively voted to deny Deborah’s accommodation request and sue instead. That’s why Silvergold is liable and Trapani isn’t.

Moreover, it would be a bad idea to subject the mere rendering of attorney advice to liability under the FHA because doing so would discourage attorneys from advising that the housing provider did not have to grant a request for fear that the attorney would be personally liable if the housing provider denied the request and discriminated in doing so. But this conclusion does not mean that Trapani is free from all potential sanctions for what may have been very bad legal advice. If an attorney’s advice is so bad that they commit legal malpractice, he or she can be sued by the client. But that is obviously a 1295*1295 different issue that can arise only in another forum, if at all.^[20]

Trapani’s motion for summary judgment on the Fischers’ refusal-to-accommodate claim is therefore granted.

C. Sabal Palm’s summary-judgment motion on the declaratory-judgment action

The discussion above establishes — at a minimum — two propositions that are fatal to Sabal Palm’s summary-judgment motion on its declaratory-judgment action: (1) that Sabal Palm was not entitled to additional information beyond the records that Deborah produced before Sabal Palm voted to not grant the accommodation and sue and (2) that Sabal Palm should have granted Deborah’s reasonable accommodation request after reviewing the records she provided in December 2011. (The discussion also makes clear that reviewing the December records would be easy because they were not complicated to understand and they made it obvious that Deborah was entitled to keep Sorenson.) The Court therefore denies Sabal Palm’s motion for summary judgment on its declaratory-judgment action.

Conclusion

For the above reasons, the Fischers’ summary-judgment motion (ECF No. 225) is granted in part and denied in part; Sabal Palm’s and Silvergold’s summary-judgment motions (ECF Nos. 202, 228) on the Amended Counterclaim and Sabal Palm’s summary-judgment motion (ECF No. 227) on its declaratory — judgment action are denied; and Trapani’s summary-judgment motion (ECF No. 201) on the Amended Counterclaim is granted. With respect to the Fischers’ claims, Sabal Palm and Silvergold are liable on the Fischers’ refusal-to-accommodate claim, but all claims against Trapani are gone. The Court will enter an amended scheduling order reopening the period for dispositive motions so that the Fischers can move for summary judgment on the declaratory-judgment action. In addition, the Court also denies as moot the Fischers’ motion (ECF No. 209) seeking to fix their failure to respond to the third set of Sabal Palm’s requests for admission.

[1] The policy actually provides that no resident may have a pet without the consent of Sabal Palm’sBoard of Directors, other than one cat or fish. (ECF No. 82-10 at 5.) But no pet will be permitted that weighs more than 20 pounds at maturity. (Id.) Because the pets allowed by the policy do not matter for the issues in this case, the Court refers to the policy as the no-pets policy.

[2] To the extent that much of the discussion of the facts and legal analysis are repetitious of the Omnibus Order (ECF No. 283), the Court apologizes. But because this Second Omnibus Order disposes of several counts and a party with prejudice and may be subject to review, the Court again sets forth its analysis in detail.

[3] The Background Paper can be found online at the following website: http://sbp.senate.ca.gov/sites/sbp.senate.ca.gov/files/Background%20Paper%20for%20Fake%20Service%20Dog%20Hearing%XX-X-XX-XX%29.pdf (last accessed on March 18, 2014).

[4] Although the FHA uses the term handicap rather than disability, both terms have the same legal meaning: the definition of disability in the Americans with Disabilities Act “is drawn almost verbatim” from the definition of handicap “contained in the Fair Housing Amendments Act of 1988. Congress’ repetition of a well-established term [implies] that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations.” Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998).

[5] The website http://www.hud.gov/offices/fheo/library/huddojstatement.pdf (last accessed on March 18, 2014) contains the Joint Statement. The Joint Statement is written as a series of questions and answers.

[6] The form states that Deborah was first diagnosed with multiple sclerosis in 2001 and that the date she experienced a significant loss of function was July 2009. (Id. at 5-6.)

[7] Because there was no box below “sedentary” on the form, Deborah’s limitations may exceed those described in the “sedentary” box. Hence the conclusion that she can lift negligible weight at best.

[8] Because Sabal Palm has declined (for now) to enforce its decision and has allowed Deborah to temporarily keep Sorenson while the suit is pending, it has not actually denied her request. For ease of reference, and because a ruling is typically coupled with enforcement, the Court refers to Sabal Palm’s conduct as delaying making a decision on the Fischers’ accommodation request.

[9] The other claims asserted in the Fischers’ Amended Counterclaim were dismissed by the Court. The refusal-to-accommodate claim is the only claim that remains and the only claim that the Court considers on summary judgment.

[10] Although the Joint Statement is a policy statement rather than “an authoritative interpretation of § 3604” that binds courts, the Joint Statement “may, of course, have the power to persuade.” Overlook,415 Fed. Appx. at 621 n. 3 (internal quotation marks omitted). The Sixth Circuit clearly found the Joint Statement highly persuasive. This Court finds the Joint Statement highly persuasive too.

[11] Some courts have read the necessity element as requiring a disabled person to show that the accommodation was necessary instead of that it may be necessary. There is a large and plain difference between the conditional language of the statute (may be) and the definite language (was) of some courts. Since the plain language of a statute controls, it follows that the required showing should be conditional. But since the undisputed facts in the present case are so one-sided on the necessity element in Deborah’s favor, even when interpreting this element as requiring a definite showing, the Court need note resolve the conflict between the statute’s plain language and some court’s interpretation of that language.

[12] The conclusion that Sorenson is better able to assist her is also supported by the letter from the dog-training professional at CCI. (See ECF No. 82-3 at 2.) The letter shows that in that person’s professional judgment, Sorenson will assist Deborah. (Id.)

[13] The HUD Statement can be found online at the following website: file:///C:/Documentsänd&Suml;ettings/rmeyers/My&Duml;ocuments/Downloads/servanimals_ntcfheo2013-01.pdf (last accessed on March 18, 2014). Although the HUD Statement, like the Joint Statement, is a policy statement rather than “an authoritative interpretation of § 3604” that binds courts, the HUD Statement “may, of course, have the power to persuade.” Overlook, 415 Fed. Appx. at 621 n. 3(internal quotation marks omitted). The principles in the HUD Statement are in accord with the principles in the Joint Statement, which the Sixth Circuit found persuasive in Overlook. Just as the Court found the Joint Statement highly persuasive, the Court also finds the HUD Statement highly persuasive.

[14] The Spencers often acted through their attorney or the president of a local fair-housing center. For simplicity, references to the Spencers will also include communications made by these representatives. Significantly, neither the Spencers, their attorney, nor the president of the local fair-housing center, Jim McCarthy, were medical or dog-training professionals. See id. at 618-19.

[15] Again, this analysis proceeds from the premise that Sabal Palm was entitled to obtain medical records substantiating Deborah’s disability — a premise that is false because her disability was readily apparent. See Joint Statement at 12-14; HUD Statement at 4. Sabal Palm’s position that it needed records to verify that a service dog would help with her disability is plausible, see Joint Statement at 13, but the records it received before suing were more than sufficient for it to verify that Deborah needed Sorenson.

[16] Although Sabal Palm’s Amended Complaint (ECF No. 129) was filed well after it sued, the Amended Complaint advances the same beliefs about the state of the law. (Compare ECF No. 129 at ¶¶ 21-22, 25, 29, 33-34, with ECF No. 1 at ¶¶ 24-25, 28, 32, 36-37.)

[17] Because Deborah’s disability was readily apparent, Sabal Palm was not entitled to ask for medical records verifying her disability. Joint Statement at 12-14. A contrary result would be absurd. For example, a housing provider should not be able to demand that a blind person or a person confined to a wheelchair produce medical records supporting their disability. Id. Because Deborah’s disability-related need for a dog was not readily apparent Sabal Palm was entitled to ask for information substantiating her need. Joint Statement at 13-14. But as discussed above, Deborah provided enough information to show the relationship between her disability and the need for a dog with Sorenson’s specific training.

[18] Deborah provided the letter from the dog-training professional and the picture of Sorenson and her in her wheelchair to Sabal Palm in a December 2, 2011 email. In a December 7, 2011 email, she provided Sabal Palm with the medical-history form completed by Herzog. These documents contained more than enough information to substantiate her accommodation request, especially when her disability was readily apparent. Remember, the inquiry by the housing provider “need not be highly intrusive. In most cases, an individual’s medical records or detailed information about the nature of a person’s disability is not necessary.” Overlook, 415 Fed.Appx. at 621-22. Deborah had provided medical and dog-training records with detailed information about her readily apparent disability and the tasks that the service dog was trained to perform. That these tasks would alleviate some of the negative effects of her disability was obvious.

[19] It is unclear whether Sabal Palm argues that its First Amendment right to petition the government renders it immune to the Fischers’ refusal-to-accommodate claim. It asserts that it is immune from this claim in an argument heading. (ECF No. 202 at 18.) But in the body of the argument, Sabal Palm argues that it is immune from the Fischers’ retaliation claim, not the refusal-to-accommodate claim. (Id.at 19; see ECF No. 265 at 16-17.) But even if Sabal Palm does argue that it is immune to the refusal-to-accommodate claim, this argument fails. Sabal Palm is immune from liability for suing the Fischers in the declaratory-judgment action. (See ECF No. 283 at 29-31.) But the refusal-to-accommodate claim is not based on Sabal Palm’s suit; rather, it is based on Sabal Palm’s failing to simply grant her request. Sabal Palm’s lawsuit is but one of the ways it has delayed making the legally correct, easy, and straightforward decision.

[20] The Court declines the Fischers’ invitation to use Rule 56(d) of the Federal Rules of Civil Procedure to delay considering Trapani’s summary-judgment motion (ECF No. 201) so that they can conduct further discovery. Even in this request, the Fischers premise their argument on the bad advice potentially given by Trapani. As discussed above, Trapani cannot be liable under the FHA for any bad advice that he gave. His liability for such bad advice would lie elsewhere. And since the Fischers can point to no likelihood that discovery will reveal that Trapani was in fact on Sabal Palm’s Board of Directors actually voting on the decisions significant to this case, the Fischers have not adduced a legally viable theory against Trapani.

Keywords: Civil Rights, Discrimination

Llanos v. Estate of Anthony Coehlo

24 F.Supp.2d 1052 (1998)

1053*1053 Christopher Arnold Brancart, Brancart and Brancart, Pescadero, Co.

Gregory Leon Altounian, Fresno, CA.

Paul R. Hager, Harry E. Macy, Hager Trippel Macy and Jensen, Fresno, CA.

MEMORANDUM OPINION RE: PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF THE ISSUES PURSUANT TO FED. R. CIV. P. 56(b)

WANGER, District Judge.

Summary by Mary M. Howell, Esq.:

While it is not clear that landlord’s offering of a unit in a family section of a facility which had both family and adult sections violated the various state and federal laws prohibiting “steering “, rules prohibiting use by children of facilities in the adult section violate fair housing laws on their face.

**End Summary**

I. INTRODUCTION

Plaintiffs Cynthia Llanos and Sophia Nazaryan^[1] initiated this housing discrimination lawsuit against Defendants Joe Coehlo, Terri Alsup, Estate of Anthony Coehlo, Estate of Frank Coehlo, and Linda Vista Farms Partnership, individually and doing business as Del Monte Pines (collectively, the “Defendants”), alleging Defendants discriminated against Plaintiffs on the basis of “familial status” in violation of federal and state laws.

Plaintiffs move for partial summary judgment or partial summary adjudication pursuant to Federal Rule of Civil Procedure 56, seeking a judgment that Defendants violated federal and state anti-discrimination laws by: (1) unlawfully steering tenants based on their familial status; and (2) implementing rules evincing a preference, limitation or discrimination in the “provision of services and facilities” on the basis of familial status. Defendants oppose the pending motion. For the following reasons, Plaintiffs’ motion for partial summary judgment is DENIED IN PART AND GRANTED IN PART.

II. FACTUAL BACKGROUND

The following undisputed factual background is taken from the court’s Memorandum Opinion dated January 28, 1997, and is supplemented with further undisputed facts provided by the parties.

1. Del Monte Pines (“Del Monte”) is an apartment complex with townhomes and one-, two-, and three-bedroom apartments. It is owned and operated by defendants Joe Coehlo, the estate of Frank Coehlo, estate of Anthony Coehlo, and Linda Vista Farms Partnership.

2. Terri Alsup has been the manager of Del Monte since November 1988.

3. As the manager, Ms. Alsup has general supervisory responsibility for all employees, including the rental agents, ultimate responsibility for business decisions, and control of and is the custodian of Del Monte’s books and records. Charlene Grice and Joanie Norris are rental agents employed by Del Monte.

4. As a rental agent, Ms. Grice shows and rents apartments, schedules maintenance, takes complaints, collects rental payments, in addition to other administrative duties. Depo. of Grice at 19:15-22.

1054*1054 5. Del Monte contains over 366 dwelling units. As of August 6, 1996, 100 of those units were in the “family” section and the balance were in the “adult” section. Depo. of Alsup at 103:8-15.

6. Prior to this suit, Del Monte implemented and effectuated the policy that “families live in family sections and adults live in adult sections.” Depo. of Grice at 96:6-7.

7. At the time of Ms. Alsup’s deposition on August 6, 1996, the rental clerks at Del Monte were instructed that “family section” apartments were to be rented to families with children under the age of 18. Depo. of Alsup at 68-69.

8. During her training, Ms. Grice was instructed that available units in the family section were to be rented only to families with children. Depo. of Grice at 43-44 (testifying Del Monte was divided into family and adult sections).

9. During her tenure as a rental agent, Ms. Grice testified that families with children living in the adult section have been asked to move to the family section. Depo. of Grice at 46:9-14.

10. The Fair Housing Council established through testers that the Defendants “maintained apartment units that excluded families with children, while maintaining over one-third of the units in which children were allowed.” Defs.’ Opp. To Pls.’ Mot. For Summ. Jud. at 1:20-24.^[2]

11. One to three months before her deposition on January 30, 1997, Ms. Alsup told Ms. Grice Del Monte would no longer maintain a family and adult section. Depo. of Grice 39:4-19.

12. As of August 6, 1996, the “family” section of Del Monte consisted of: part of 845 West Ashlan, 855 West Ashlan, 825 West Ashlan, 865 West Ashlan, part of 4081 North Fruit, part of 4065 North Fruit, and 4045 North Fruit.

13. As of August 6, 1996, the “adult” section of Del Monte consisted of: 835, 845, 855, and 865 West Ashlan, and 4073, 4065, 4081, 4111, 4044, 4025, and 4085 North Fruit.

14. When the Plaintiffs filed their complaint, they lived in Unit # 121, which was in the adult section of Del Monte.

15. During Alsup’s tenure as manager, rental applicants who stated they had children were not allowed to rent an apartment in the adult section of Del Monte.

16. While Alsup has been manager, there is a “possibility” that a family with children was not rented an apartment because there was no room in the Del Monte family section.

17. On August 6, 1996 (when her deposition was taken), Alsup could only recall four families with children who currently reside in the adult section of the complex.

18. When it was determined that a family with children was in fact residing in the adult section of the complex, the procedure employed by Del Monte was to call the family and ask if they would like to transfer to the family section. Since November of 1988, about ten (10) families with children residing in the adult section were asked by the Defendants’ managers if they would like to move to the family section.

19. The families with children who do reside in the adult section moved there when the mothers were pregnant but not showing or obtained custody of children after moving into the adult section.

20. Del Monte has six swimming pools in its complex. Depo. of Alsup at 102:9-24.

21. From 1988 until August 6, 1996, four of the swimming pools were reserved for adults only and the remaining two were designated family pools. Id. at 102:9-24, 103:4-7.

22. Children under the age of 18 were not permitted to use the adult pools. Id.

23. On August 17, 1995, Grachik Nazaryan submitted an application for an apartment unit at Del Monte. On his application, Mr. Nazaryan did not indicate that anyone else would be living with him.

24. Del Monte agreed to rent Unit # 121 to Mr. Nazaryan as long as he obtained a cosigner 1055*1055 with good credit who would guarantee payment of his rent.

25. Mr. Nazaryan obtained a co-signer and rented Unit # 121.

26. Before renting the apartment, Mr. Nazaryan had agreed with Ms. Llanos that he would find an apartment for her and Sophia, rent it in his name, and allow her and Sophia to live there.

27. On September 23, 1995, Ms. Llanos submitted an application to be a co-tenant with Mr. Nazaryan. On her application, Ms. Llanos did not indicate whether children would be living with her. She did indicate on her application (1) that for the past five years she had lived at her father’s home, even though she had lived in many different apartments during this period; (2) Mr. Nazaryan’s mother was her mother-in-law; (3) she had never been evicted; (3) she had never been convicted of a crime; and (4) that her source of income was from AFDC ($490.00/month).

28. Mr. Nazaryan and Ms. Llanos were never married and they had ceased their cohabitation prior to submitting his rental application to Del Monte.

III. PROCEDURAL BACKGROUND

Plaintiffs filed this suit on February 29, 1996, seeking monetary, declaratory and injunctive relief. On December 31, 1996, Defendants moved for summary judgment, which the court granted in part and denied in part. On April 30, 1997, Plaintiffs filed a second amended complaint, adding the Fair Housing Council of Fresno County as a party plaintiff.

IV. LEGAL STANDARD

A. Summary Judgment Touchstone

Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. Anderson v. Liberty Lobby, 477 U.S. 242, 252-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party cannot simply rest on its allegation without any significant probative evidence tending to support the complaint.Id. at 249, 106 S.Ct. 2505.

[T]he 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 make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.

Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

The more implausible the claim or defense asserted by the opposing party, the more persuasive its evidence must be to avoid summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Nevertheless, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor.” Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. Even where the basic facts are undisputed, if reasonable minds could differ as to the inferences to be drawn from those facts, summary judgment should be denied. Hopkins v. Andaya, 958 F.2d 881, 888 (9th Cir.1992). The court’s role on summary judgment, however, is not to weigh the evidence, i.e., issue resolution, but rather it is issue finding. Id.

Evidence submitted in support of or in opposition to a motion for summary judgment must be admissible under the standard articulated in 56(e). Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1989).

B. Applicable Law

FHA discrimination claims are analyzed in the same manner as Title VII discrimination claims. Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir.1997). A plaintiff can establish a FHA discrimination claim by either of two methods. See Kormoczy v. Department of Hous. & Urban Dev., 53 F.3d 1056*1056 821, 823-24 (7th Cir.1995) (specifically addressing FHA familial status discrimination claims). The first method is the McDonnell Douglas burden-shifting test. Under this test, the plaintiff must demonstrate all the elements of a prima facie case. Ring v. First Interstate Mortg., Inc., 984 F.2d 924, 926 (8th Cir.1993). In the FHA familial status discrimination context, Plaintiffs would have to show that:

(1) Llanos is a member of a protected class;

(2) Llanos applied to rent an apartment and was qualified to do so;

(3) Llanos was rejected; and

(4) the apartment was rented soon thereafter to someone outside the protected class.

See Gamble, 104 F.3d at 305.

Once the plaintiff sufficiently establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its action. If the defendant asserts a reasonable legitimate reason, the plaintiff must then prove by a preponderance of the evidence that the legitimate reasons propounded by defendant are in fact mere pretext.

The second method of proving disparate treatment is by establishing a “direct discriminatory intent … through direct or circumstantial evidence.” Kormoczy, 53 F.3d at 823-24. “Where direct evidence is used to show that a housing decision was made in violation of the [FHA], the burden shifting analysis is inapposite.” Id. at 824. There is no need to demonstrate a prima facie case using this direct method. See Warren v. City of Carlsbad, 58 F.3d 439, 442 n. 1 (9th Cir.1995) (Title VII context); see alsoMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (noting that McDonnell Douglas test need not be strictly followed in a disparate treatment case).

To establish a prima facie disparate impact claim, a plaintiff must show “`at least that the defendant’s actions had a discriminatory effect.” Gamble, 104 F.3d at 306(citations omitted). The elements of a prima facie disparate impact case include: “(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by defendant’s facially neutral acts or policies.” Id.

A familial status claim does not require a showing of discriminatory intent. Fair Housing Council of Orange County, Inc. v. Ayres, 855 F.Supp. 315, 315 (C.D.Cal. 1994) (citing Keith v. Volpe, 858 F.2d 467 (9th Cir.1988) (proof of intent is not required to establish a violation)).

V. ANALYSIS AND DISCUSSION

A. “Steering” Violates the Fair Housing Act

Plaintiffs contend Defendants violated section 3604(a) and (c) and related state fair housing laws by engaging in discriminatory steering on the basis of familial status.

Congress promulgated the Fair Housing Act (“FHA”) as Title VIII of the Civil Rights Act of 1968. Fair Housing Council of Orange County, Inc. v. Ayres, 855 F.Supp. 315, 316 (C.D.Cal.1994). The FHA was enacted to “[e]nsure the removal of artificial, arbitrary, and unnecessary barriers when the barriers operate invidiously to discriminate on the basis of impermissible characteristics.” United States v. Parma,494 F.Supp. 1049, 1053 (N.D.Ohio 1980), rev’d on other grounds, 661 F.2d 562 (6th Cir.), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982). The Act was designed to prohibit “all forms of discrimination [even the] simpleminded.”Williams v. Matthews Co., 499 F.2d 819, 826 (8th Cir.1974).

In 1988, Congress amended the FHA to prohibit “familial status” discrimination, that is, discrimination against parents and other custodians living with children under the age of 18. 42 U.S.C. § 3602(k). Specifically, the FHA makes it unlawful “[t]o discriminate 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 therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b) (emphasis added). “Congress expanded the Fair Housing Act to protect against familial status discrimination in light of an express concern for the plight of single-parent families, young families with 1057*1057 children, and poor families.” SeeUnited States v. Branella, 972 F.Supp. 294, 297 (D.N.J.1997) (Title VIII accords families broad protection).

Section 3604(a) makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of … familial status.” 42 U.S.C. § 3604(a).

Section 3604(c) prohibits the making or publishing of any statement or advertisement that “indicates” any preference or limitation based on, among other factors, family status. 42 U.S.C. § 3604(c). The implementing regulations in effect at the relevant time provide that the prohibition encompasses “written or oral notices or statements by a person engaged in the sale or rental of a dwelling.” 24 C.F.R. § 100.75(a) (1995). A discriminatory statement includes “[e]xpressing to agents, brokers, employees, prospective sellers or renters or any other persons a preference for or limitation on any purchaser or renter because of … familial status ….” 24 C.F.R. § 100.75(c)(2); Stewart v. Furton, 774 F.2d 706 (6th Cir.1985) (discriminatory oral statement violates section 3604(c)).

To determine whether a statement “indicates” impermissible discrimination an “ordinary listener” standard is employed.^[3] See Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir.), cert. denied, 502 U.S. 821, 112 S.Ct. 81, 116 L.Ed.2d 54 (1991); see also Jancik v. Department of Housing & Urban Development, 44 F.3d 553, 556 (7th Cir.1995) (adopting the “ordinary listener” test). The inquiry under this standard is whether the alleged statement at issue would suggest to an “ordinary listener” that people with a particular familial status are preferred or dis-preferred for the housing in question. Ragin, 923 F.2d at 999. The ordinary listener “is neither the most suspicious nor the most insensitive of our citizenry.” Id. at 1002. Section 3604(c) may be violated without a showing of a subjective intent to discriminate.Jancik, 44 F.3d at 556.

Plaintiffs argue Defendants violated the FHA by unlawfully “steering,” or attempting to steer, Plaintiffs to the family section and away from the “adult” section merely because Ms. Llanos lived with her three-year old daughter. “Steering” is the type of violation that is encompassed within the “otherwise make unavailable” proscriptive language set forth within in section 3604(a). Department of Hous. & Urban Dev. v. Edlestein, 1991 WL 442784, at *4 (H.U.D. 1991). Steering is not an “outright refusal to rent to a person within a class of people protected by the statute; rather it consists of efforts to deprive a protected homeseeker of housing opportunities in certain locations.” Id. at *5.

Regulations promulgated by the Department of Housing and Urban Development (“HUD”) make it unlawful, because of familial status, “to restrict or attempt to restrict the choices of a person by word or conduct in connection with seeking, negotiating for, buying or renting a dwelling so as to perpetuate, or tend to perpetuate, segregated housing patterns, or to discourage or obstruct choices in a community, neighborhood or development.” 24 C.F.R. § 100.70(a) (emphasis added). Among the practices prohibited are “[a]ssigning any person to a particular section of a community, neighborhood or development, or to a particular floor of a building,” because of familial status. 24 C.F.R. § 100.70(c)(4).

The evidence proffered by the parties amply demonstrates that Defendants purposely and unlawfully divided Del Monte into two distinct sections, one for adults and one for families with children under the age of 18. See Depo. of Grice 43-44 (Del Monte was divided into family and adult sections. Del Monte’s stated policy was that “families live in family sections and adults live in adult sections.”). Depo. of Grice at 96:6-7. This configuration, made discriminatory by the FHA and section 100.70(c), was implemented by Del Monte’s manager, Ms. Alsup, and its rental clerks. Defendants have testified that there is a “possibility” that a family with children was denied the opportunity to rent an apartment at the Del Monte because there was no room in the family section. Ms. 1058*1058 Grice testified that during her training she was instructed that the available units in the family section were to be rented only to families with children. During Alsup’s tenure as manager, rental applicants who stated they had children were not allowed to rent an apartment in the adult section of Del Monte.

Defendants do not dispute that they violated the FHA “by assigning families with children to a particular section of the development.” Defs.’ Opp. to Pls.’ Mot. For Summ. Jud. at 3:26-28. They suggest, however, that Plaintiffs were not unlawfully steered to any particular section as Plaintiffs already resided in the adult section.^[4]Ms. Grice testified that upon discovering that a family with children was living in the adult section, Del Monte personnel would

call sometimes and ask them if they’d be interested in moving to a two-bedroom family section and find out what [the family] thought. And if they liked the idea, we’d discuss the procedure; and if they didn’t, then we noted that in our file.

Depo. of Grice at 54:8-13.

Defendants contend that the “evidence most favorable to defendants here is that the policy of Del Monte Pines was to sometimes contact persons living in adult sections, inform them that there is available housing in the family units, and to determine whether or not they are interested.” Defs.’ Opp. at 3:9-12.

Standing alone, Del Monte’s policy of contacting families residing in the adult section and informing them of the availability of apartments in the family section does not run afoul of the FHA. A violation arises if the rental agent expresses or underscores a preference or limitation for the family and or against adult sections and directly or tacitly enforces that discriminatory policy. Cf. Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1530 (7th Cir.1990) (Title VII prohibits “real estate agents … [from] cajoling or coercing the customer because of his race to buy this property or that or look in this community rather than that.”); see also Cabrera v. Jakabovitz, 24 F.3d 372, 378 n. 2 (2d Cir.) (“Racial steering is a practice by which real estate brokers and agents preserve and encourage patterns of racial segregation in available housing by steering members of racial and ethnic groups to buildings occupied primarily by members of such racial and ethnic groups and away from buildings and neighborhoods inhabited primarily by members of other races or groups.”), cert. denied, 513 U.S. 876, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994). In determining whether the policy of encouraging families with children to relocate to the adult section was discriminatory, Defendants’ conduct must be considered under the totality of the circumstances.

Ms. Grice testified that once she learned about Sophia, she

“probably talked to Grachik and asked them if they live there. And we said, well, we have a family section, and if you people would be interested in moving to the family section — we have a family section for people with children and we have an adult section for adults.”

Depo. of Grice at 95:3-9 (emphasis added).^[5]

Ms. Grice’s statement emphasized that Del Monte had two sections and it preferred adults and families to live in their respective sections. See United States v. Grishman, 818 F.Supp. 21 (D.Me.1993) (landlord’s oral statement to rental agent that property was “less suitable” for families with children is a statement indicating a preference based on familial status in violation of section 3604(c)). Reasonably interpreted, Ms. Grice was informing Ms. Llanos that she should relocate to the family section because she was living with her child. Ms. Grice’s statement, when considered with Del Monte’s rental policies of 1059*1059 balkanizing the apartment complex into two domains, adult and non-adult, constitute a direct interference with Plaintiff’s living choices in violation of 24 C.F.R. § 100.70(a). Id. (it is unlawful, because of familial status “to restrict or attempt to restrict the choices of a person … or to discourage or obstruct choices in a community, neighborhood or development.”); Fair Housing Congress v. Weber, 993 F.Supp. 1286, 1293-94 (C.D.Cal. 1997) (defendants violated section 3604(a) and (c) by maintaining informal policy of not renting second-floor entry balcony apartments to families with small children). That is, Defendants presumptively contacted Plaintiff in the hopes that she would move to the adult section, where she belonged, and there by preserve or maintain the discriminatory configuration fostered by Defendants. Defendants’ conduct is no less discriminatory or objectionable because their prodding may not have always caused a family with children to move out of the adult section and into the family, as is the case here. The fact that they were attempting to discourage and steer families with children in connection with their discriminatory, segregated housing plan is a violation of the FHA.

Defendants argue that their motivations were purely family-oriented. Defendants assert that they merely informed Ms. Llanos “that a section more conducive to family living existed and the availability of transfer was present if she wished.” Defs.’ Opp. To Pls.’ Mot. For Summ. Jud. at 4:1-2. Ms. Grice averred that once she “became aware that Ms. Llanos was living with her baby[,] [she contacted Ms. Llanos and] suggested that she could move into a 2-bedroom apartment in the `family’ section of the complex…. [because Ms. Llanos] … might like it more.” Decl. of Grice at ¶ 15.

Though Defendants’ arguments and justifications are subject to question, given their discriminatory housing policies, they have introduced sufficient evidence concerning their motives and intent to defeat Plaintiffs’ motion for summary judgment. 10B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2732.2 (1998) (“[I]n cases alleging … discrimination in … housing, an examination of motive and intent usually is involved, making the granting of summary judgment especially questionable.”) (collecting cases); cf. Rogers v. Lewis, 792 F.2d 1052, 1059 (11th Cir.1986) (“Ordinarily, summary judgment should not be granted in cases where motive, intent, subjective feelings, and reactions are to be searched.”).

This genuine factual dispute also prevents the court from determining whether Defendants’ “steering” violated the California Fair Employment and Housing Act^[6]and the Unruh Civil Rights Act.^[7] Plaintiffs’ motion for partial summary judgment on the steering claims is DENIED.

B. Restricting Childrens’ Access to the Entire Complex

Plaintiffs argue that Defendants violated federal and state law by “promulgating and enforcing rules that discriminate against families with children by limiting their use of the services and facilities at the rental premises.” Plaintiffs contend that these alleged discriminatory rules violates 42 U.S.C. § 3604(b) and (c), the California Government Code § 12955(a), (c) and (k), and California Civil Code § 51-52. Defendants maintain that these rules are not discriminatory, but rather, are justified by reasonable health, safety and business reasons.

1060*1060 The Del Monte rules at issue are as follows:

(1) Del Monte’s “House Rules” provide that “[b]icycle skates, and skateboard riding is permitted only in family areas. This will be strictly enforced.”

(2) Rule number 5 states that “[p]laying on second floor landings, stairways, and in adult areas is forbidden. This is dangerous and disturbs [sic] adjacent tenants” (emphasis added).

(3) House Rule number 2 provides: “Children will swim in family pools only. Adult pools are for ADULTS ONLY.” Ms. Alsup testified that since 1988, only two of the swimming pools at the Del Monte were available for use by children. Children under 18 were not permitted to use the four adult pools.

Title 42 U.S.C. § 3604(b) proscribes discrimination inter alia against any person on the basis of familial status in connection with the provision of services or facilities. Federal regulations provide that it is unlawful to “limit[] the use of privileges, services or facilities associated with a dwelling because … of familial status ….” 24 C.F.R. § 100.65(b)(4).

In U.S. v. M. Westland Co., plaintiffs brought a housing discrimination suit against their mobile home park, alleging the Park’s “rules” discriminated against families with children by indicating a indicated a “preference, limitation, or discrimination” in the “terms and conditions” and “provision of services and facilities.” In that case, the Park’s rules provided that children under the age of 18 were not: allowed outside of their mobile homes unless they were under adult supervision; to play in the streets; permitted in the park’s clubhouse or other common areas without adult supervision; and to be in the swimming pool area unless accompanied by an adult. Id. at 15,941.1. The Westland court found these rules “facially discriminatory” because they “treat children and, thus, families with children differently-and less favorably-than households comprised of adults only.” Id. at 15,941.2.

Similarly here, Defendants’ rules are facially discriminatory. Del Monte’s rules penalize families with children by disallowing children access to four of six pools and prohibiting children from playing in adult areas. These rules effectively confine children to the family section and prohibit them from enjoying the privileges accorded to adults living in the adult section. HUD v. Paradise Gardens, HUDALJ XX-XX-XXXX-X, 1992 WL 406531, at (HUDALJ Oct. 15, 1992) (finding that Defendants various pool restrictions for children, e.g., no child under the age of five is permitted in the pool or pool area, violate the Fair Housing Act).

Defendants can rebut a prima facie case of discrimination by showing that their rules are required by a reasonable business reason. Pfaff v. U.S. Dep’t of Hous. & Urban Dev., 88 F.3d 739, (9th Cir.1996) (defendant’s reasons for implementing facially discriminatory rules must be reviewed under a reasonableness standard); see also U.S. v. M. Westland Co., at 15,941.2^[8] (citing Fair Housing Council of Orange County, Inc. v. Ayres, 855 F.Supp. 315, 318 (C.D.Cal.1994)) (“After a plaintiff establishes a prima facie case, a presumption of illegality arises and defendant has the burden of articulating a legitimate, non-discriminatory justification for the challenged policy.”); see also

Defendants contend that their regulations concerning pools is justified since two-thirds of the apartments were designated for adults. This reasoning is circular. No explanation is offered why 2/3 of the apartments must be adult. Defendants also argue that the pool restriction is justified by safety reasons because it “is universally known that children must be carefully supervised in the area of swimming pools, especially if they are so young as [to] lack necessary judgment to avoid drowning.” Defs.’ Opp. To Pls.’ Mot. For Summ. Jud. at 7:8-10. “As a general rule, safety judgments are for informed parents to make, not landlords.” Edlestein, 1061*1061 1991 WL 442784, at *5. Defendants’ rule concerning pools is overly broad, “paternalistic” and unduly restrictive. Ayres, 855 F.Supp. at 319 (“Even if defendant’s damage prevention rationale were supported by independent evidence, it does not show the occupancy restriction is the least restrictive means to achieve defendant’s purpose.”); M. Westland, at ¶ 15,941.3 (court held that the “rule that all children must be accompanied by an adult in order to swim in the park pool” is not justified. The adult-only restrictions prevent a 16 or 17 year old certified lifeguard from swimming unaccompanied in adult pools.); see also Department of Hous. & Urban Dev. v. Beacon Square Pool Ass’n, 1993 WL 668297, at *1 (H.U.D.1993) (parties stipulated that rule restricting children ages 12 through 17 in having guests at the swimming pool and restricting the hours that children could use the swimming pool violates section 3604(b)).

With respect to restricting children’s recreational activities, the Defendants contend that their rules are not unreasonable because they simply “forbid certain activities … considered dangerous for their tenants.” The rule is not entirely objectionable. Ms. Alsup averred that Del Monte “has many curved walkways that have obstructions to vision and even with these rules in effect, two to three times each year we get complaints of accidents and near accidents involving tenants on chores such as laundry or unloading groceries in the same areas where other tenants are running, skateboarding, or bicycling.” Decl. of Alsup in Opp. To Pls.’ Mot. For Summ. Jud. at ¶ 5 (Ms. Alsup intimates that this rule is not extended to family sections because “it is impractical to limit families with children from” engaging in recreational activities in “close proximity to their home.”).

The rule, however, is unreasonable inasmuch as it forbids children from playing in adult areas, thereby discriminating against families based on familial status. The rule effectively prohibits children from accessing a large area of the complex. See Weber,993 F.Supp. at 1290-92 (Court found that rule prohibiting children from playing or running around inside the building area at any time “because of disturbance to other tenants or damage to building property” was facially discriminatory as a matter of law and not supported by a reasonable, non discriminatory reason.).

Plaintiffs have made out a prima facie case of discrimination by showing facially discriminatory rules which treat children, and thus, families with children, differently and less favorably than adults-only households. Defendants have not asserted any reasonable and nondiscriminatory reasons justifying Del Monte’s overly broad and restrictive rules against children in connection with their access to the pools and the prohibition of play in and around the building areas. Plaintiffs’ motion for partial summary judgment as to these rules is GRANTED.

Defendants argue that these rules do not affect Sophia because she is too young to either swim, skateboard or skate. While this may be true, Defendants’ discriminatory policies nevertheless are targeted against children generally, a class of persons that includes Sophia. Defendants’ argument is relevant for the purposes of determining her injuries and whether she is entitled to any monetary relief.

C. The Owner Defendants Are Held Liable for the Conduct of Their Agents

Defendants contend that the conduct of the rental agents cannot be attributed to them under a theory of respondeat superior. They are mistaken. It is well established that “the duty of a property owner not to discriminate in the leasing or sale of that property is non-delegable.” Walker v. Crigler, 976 F.2d 900, 904 & n. 5 (4th Cir.1992)(citing Marr v. Rife, 503 F.2d 735, 741 (6th Cir.1974) (“The discriminatory conduct of an apartment manager or rental agent is, as a general rule, attributable to the owner and property manager of the apartment complex, both under the doctrine of respondeat superior and because the duty to obey the law is non-delegable.”)). Thus, a property owner is liable for the conduct of his employees despite instructions to them not to discriminate. Walker, 976 F.2d at 904-905.

To effectuate the specific mandates of anti-discrimination law, Joe Coehlo, the estates of Frank and Anthony Coehlo, and Linda Vista Farms Partnership must be held responsible for all the discriminatory practices practiced by Del Monte’s rental agents.

1062*1062 D. Miscellaneous Arguments

Defendants’ defense of unclean hands does not bar this court from granting Plaintiffs’ motion for partial summary judgment. The unclean hands assertion goes to the question of what available remedies Plaintiffs are entitled to. This remains an issue to be decided at trial. See Memorandum Opinion of Jan. 28, 1997.

Finally, Defendants correctly argue that because Frank and Anthony Coehlo are deceased, Plaintiffs should be precluded from recovering punitive damages, if any are awarded, against Defendants’ respective estates. California Civil Procedure Code § 377.42 bars the imposition of punitive damages against a decedent or hisestate.

VI. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for partial summary judgment is DENIED IN PART AND GRANTED IN PART.

Counsel for Plaintiffs shall prepare an order in conformity with this memorandum opinion and lodge it with the court within five (5) business days following the date of service of this opinion.

IT IS SO ORDERED.

[1] Sophia is Ms. Llanos’s three-year-old daughter. On March 15, 1996, Ms. Llanos was appointed as Sophia’s guardian ad litem.

[2] Pursuant to a stipulation agreement between the Defendants and Fair Housing Council (“FHC”), the Defendants agreed, among other things, to pay FHC $15,000 and discontinue discriminatory rental policies based on familial status.

[3] The Ninth Circuit has not yet addressed this issue. The reasoning employed by other circuits is sound, the “ordinary listener” standard applies.

[4] Although Plaintiffs resided in Del Monte’s adult section, they have standing to sue for discriminatory housing practices. Title 42 U.S.C. § 3613(a) provides that “an aggrieved person may commence a civil action in an appropriate … court … to obtain appropriate relief.” An “aggrieved person” is any person who claims to have been injured by a discriminatory housing practice or believes that such person will be injured by a discriminatory housing practice that is about to occur. 42 U.S.C. § 3602(i).

The evidence before the court has established that Defendants attempted to steer Ms. Llanos to a family section in accordance with the discriminatory configuration fostered by the Defendants.

[5] Ms. Grice commented that her statement “was more likely” what she told “them,” but that she was unsure. However, in a note memorializing her conversation, Ms. Grice wrote: “I explained the rules to them about family and adult section, et cetera. C.G.”

[6] The Fair Housing and Employment Act (“FEHA”) proscribes housing discrimination on the basis of “race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability of that person.” California Govt. Code § 12955(a) (emphasis added). Subsection (b), makes it illegal for “the owner of any housing accommodation to make or to cause to be made any written or oral inquiry concerning the race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability of any person seeking to purchase, rent or lease any housing accommodation.” California Govt.Code § 12955(b) (emphasis added).

The FEHA is to be liberally construed to effectuate its purposes. California Govt.Code § 12993(a). “FEHA in the housing area is thus intended to conform to the general requirements of federal law in the area and may provide greater protection against discrimination.” Brown v. Smith, 55 Cal.App.4th 767, 780, 64 Cal.Rptr.2d 301, 309 (1997).

[7] Section 51 prohibits “a business establishment from discriminating in the sale or rental of housing based upon age.” California Civil Code § 51.2(a).

[8] “Although they are administrative decisions, HUD is the federal agency charged by Congress with interpreting and enforcing the Act, and it has special expertise in housing discrimination. See 42 U.S.C. § 3608(a) (1994). Therefore, these decisions are entitled to great weight. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415 (1972).” Fair Housing Council of Orange County, Inc. v. Ayres, 855 F.Supp. 315, 318 (C.D.Cal. 1994).

Keywords: Civil Rights, Discrimination

BALVAGE v. RYDERWOOD IMPROVEMENT SERVICE ASSOCIATION 

(2011) 642 F.3d 765

768*768 Steven Goldstein (argued), Richard Ross and Victoria M. Pond, Betts, Patterson & Mines, P.S., Seattle, WA, for the defendant-appellant.

Joseph E. Lynam (argued) and Abraham K. Lorber, Lane Powell PC, Seattle, WA, for the plaintiffs-appellees.

Thomas E. Perez, Assistant Attorney General, Dennis J. Dimsey and Jennifer Levin Eichhorn, Attorneys, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for amicus curiae Secretary of the U.S. Department of Housing and Urban Development.

Before: SUSAN P. GRABER and RAYMOND C. FISHER, Circuit Judges, and CONSUELO B. MARSHALL, District Judge.^[*]

OPINION

FISHER, Circuit Judge:

We hold that a residential community that has continuously operated as a retirement community for persons age 55 or older can qualify for the housing for older persons exemption from the Fair Housing Act’s prohibition on familial status discrimination by establishing that it currently satisfies the exemption’s three statutory and regulatory criteria at the time of the 769*769 alleged violation, even if the community enforced age restrictions when it first achieved compliance with the exemption’s age verification requirement.

BACKGROUND

I.

In 1988, Congress amended the Fair Housing Act (FHA) and prohibited housing discrimination on account of familial status. See Fair Housing Amendments Act of 1988 (FHAA), Pub.L. No. 100-430, 102 Stat. 1619. As amended by the FHAA, the FHA broadly prohibits discrimination against families with children in connection with the sale and rental of housing. See 42 U.S.C. §§ 3604(a)-(e), 3605, 3606, 3617, 3631.^[1]

At the same time, Congress recognized the effect these prohibitions would have on retirement communities and created exemptions in the FHA for qualified “housing for older persons.” Id. § 3607(b). The housing for older persons exemptions permit communities satisfying certain requirements to discriminate on the basis of familial status. See id. The exemptions apply to three types of housing, including, as relevant here, housing for persons 55 years of age or older. See id. § 3607(b)(2)(C).^[2]

The familial status provisions of the FHA, including the housing for older persons exemptions, became effective in March 1989. See id. § 3601 note (quoting FHAA § 13(a)). In January 1989, the Department of Housing and Urban Development (HUD) issued final regulations implementing the exemptions. See Implementation of the Fair Housing Amendments Act of 1988, 54 Fed.Reg. 3232, 3290-3291 (Jan. 23, 1989);see also 24 C.F.R. §§ 100.10(b), 100.300-100.304 (1991). A few years later, in 1995, Congress passed the Housing for Older Persons Act (HOPA), Pub.L. No. 104-76, § 2, 109 Stat. 787, which revised the 55 or older exemption.

Under the FHA, as amended by the FHAA and HOPA, housing qualifies for the 55 or older exemption (“the HOPA exemption”) when it is “intended and operated for occupancy by persons 55 years of age or older” and three requirements are satisfied:

(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;

(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and

(iii) the housing facility or community complies with rules issued by the Secretary for verification of occupancy, which shall—

(I) provide for verification by reliable surveys and affidavits; and

(II) include examples of the types of policies and procedures relevant to a determination of compliance with the 770*770 requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification.

42 U.S.C. § 3607(b)(2)(C).^[3] It is the third of these criteria—the requirement that the community verify occupancy “by reliable surveys and affidavits”—that is at issue here. In 1999, HUD published final regulations implementing HOPA. SeeImplementation of the Housing for Older Persons Act of 1995, 64 Fed.Reg. 16,324, 16,329-16,332 (Apr. 2, 1999); 24 C.F.R. §§ 100.304-100.308. HUD adopted a regulation, 24 C.F.R. § 100.307, specifying the actions a community must take to satisfy the verification requirement mandated by 42 U.S.C. § 3607(b)(2)(C)(iii). Section 100.307 states:

(a) In order for a housing facility or community to qualify as housing for persons 55 years of age or older, it must be able to produce, in response to a complaint filed under this title, verification of compliance with § 100.305 [i.e., at least 80 percent of its occupied units must be occupied by at least one person 55 years of age or older] through reliable surveys and affidavits.

(b) A facility or community shall, within 180 days of the effective date of this rule, develop procedures for routinely determining the occupancy of each unit, including the identification of whether at least one occupant of each unit is 55 years of age or older. Such procedures may be part of a normal leasing or purchasing arrangement.

(c) The procedures described in paragraph (b) of this section must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place at least once every two years. A survey may include information regarding whether any units are occupied by persons described in paragraphs (e)(1), (e)(3), and (e)(4) of § 100.305.

(d) Any of the following documents are considered reliable documentation of the age of the occupants of the housing facility or community:

(1) Driver’s license;

(2) Birth certificate;

(3) Passport;

(4) Immigration card;

(5) Military identification;

(6) Any other state, local, national, or international official documents containing a birth date of comparable reliability; or

(7) A certification in a lease, application, affidavit, or other document signed by any member of the household age 18 or older asserting that at least one person in the unit is 55 years of age or older.

(e) A facility or community shall consider any one of the forms of verification identified above as adequate for verification of age, provided that it contains 771*771 specific information about current age or date of birth.

(f) The housing facility or community must establish and maintain appropriate policies to require that occupants comply with the age verification procedures required by this section.

(g) If the occupants of a particular dwelling unit refuse to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older. Such evidence may include:

(1) Government records or documents, such as a local household census;

(2) Prior forms or applications; or

(3) A statement from an individual who has personal knowledge of the age of the occupants. The individual’s statement must set forth the basis for such knowledge and be signed under the penalty of perjury.

(h) Surveys and verification procedures which comply with the requirements of this section shall be admissible in administrative and judicial proceedings for the purpose of verifying occupancy.

(i) A summary of occupancy surveys shall be available for inspection upon reasonable notice and request by any person.

24 C.F.R. § 100.307. The regulation requires communities to conduct surveys of residents at least once every two years to verify that at least 80 percent of its occupied units are occupied by at least one person 55 years of age or older. See id.§ 100.307(a), (c). The surveys must verify the ages of residents by using reliable documents or affidavits. See id. § 100.307(d), (e), (g). Summaries of the surveys must be made available to the public upon request. See id. § 100.307(i). And the surveys themselves must be maintained and produced in any administrative or judicial proceeding in which the community asserts the 55 or older exemption as a defense to a charge of discrimination. See id. § 100.307(a), (h).^[4]

The 1999 regulations also established a one-year transition period, permitting communities that did not satisfy the 80 percent occupancy requirement at the time the regulations were issued to claim the exemption by satisfying the intent and verification requirements, see 42 U.S.C. § 3607(b)(2)(C)(ii)-(iii), and reserving unoccupied units for residents 55 and older. See 24 C.F.R. § 100.305(e)(5). During the transition period, if a community demonstrated an intent to be housing for persons 55 years or older and complied with the verification requirement, it could reserve unoccupied units for occupancy by at least one person who was 55 years or older and 772*772 not violate the FHA’s prohibitions on discrimination on the basis of familial status. See id. The transition period ended on May 3, 2000. See id.; 64 Fed.Reg. at 16,324.^[5]

The regulations did not address how an existing community could obtain exempt status after expiration of the transition period. HUD touched on that issue, however, in a March 2006 memorandum from Bryan Greene, HUD’s Deputy Assistant Secretary for Enforcement and Programs, to HUD regional directors. Greene’s memorandum (“HUD’s 2006 policy guidance”) explains that communities can obtain exempt status after the transition period by achieving compliance with each of the statutory and regulatory requirements, including the 80 percent occupancy requirement. Beyond the transition period, however, communities can no longer achieve compliance by reserving unoccupied units for older residents or otherwise discriminating on the basis of familial status. The guidance explains:

[A]n existing community or facility can convert to “housing for older persons” if 80 percent of its occupied units become occupied by at least one person 55 years of age of older. Unlike during the transition period, housing providers cannot discriminate against families with children in order to achieve 80 percent occupancy by persons 55 or older. In other words, a community of facility cannot reserve unoccupied units for persons 55 or older, advertise itself as housing for older persons, or evict families with children in order to reach the 80 percent threshold. If a family with children seeks to occupy a vacant unit in an existing facility before it has met all of the requirements necessary to become housing for older persons, the community or facility must permit the family to live there. Additionally, the facility may not make existing families with children feel unwelcome or otherwise encourage those families to move. While the facility or community may not take any measures deliberately designed to discourage families with children from continuing to reside in the community, nothing prevents the offering of positive incentives that might lead some families to seek housing elsewhere. If the community or facility achieves the 80 percent threshold, without discriminating against families with children, it may then publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older and comply with verification of occupancy rules. The facility or community cannot publish such policies or procedures in advance of meeting the 80 percent threshold (without discrimination) as such policies and procedures would have a chilling impact upon potential applicants or current occupants who are families with children.

Memorandum, Conversion to Housing for Older Persons Under the Fair Housing Act and the Housing for Older Persons Act of 1995, at 2 (Mar. 6, 2006) (emphasis in original).

II.

Ryderwood is a residential community located in Cowlitz County, Washington. It773*773 currently consists of approximately 270 single-family homes. It was established in 1953 “as a community to be occupied by and for the use and benefit of persons who are bona fide recipients of a pension or retirement annuity.” In 1975, theRyderwood Improvement and Service Association (RISA), which serves a role comparable to a homeowners’ association for the community’s residents, adopted amended bylaws limiting ownership and residence in Ryderwood to persons age 55 or older. These 1975 rules state:

The qualifications for ownership or purchase of a home within [Ryderwood] are:

Must be a bona-fide recipient of an annuity or a pension.

Must not be less than fifty-five years of age[.]

Must have no additional, permanent occupants of the home, (other than the spouse) who do not meet the above requirements. (Exceptions to the last requirement may be made by the Board of Trustees in the event that health or personal care of either party justifies such permission.)

The plaintiffs are 54 residents of Ryderwood. They filed this action against RISA in July 2009, alleging that the age restrictions imposed by RISA violate the FHA and that RISA has never satisfied the requirements of the HOPA exemption. Second Am. Compl. ¶¶ 72-73.^[6] They sought nominal and punitive damages, attorney’s fees and costs, declaratory relief and an injunction barring RISA from enforcing rules that discriminate against families with children. Id. ¶¶ 75, 81.

The parties filed cross-motions for partial summary judgment. The plaintiffs argued that RISA could not avail itself of the HOPA exemption because it failed to properly “convert” to exempt status. Relying on HUD’s 2006 policy guidance, they argued that a community that did not achieve compliance with all of the requirements of the HOPA exemption by the end of the transition period could obtain the benefit of the exemption only by “converting” to exempt status. They argued that a community could permissibly “convert” to exempt status only by achieving compliance with the exemption’s requirements without engaging in familial status discrimination. Here, the plaintiffs argued, RISA first attempted to “convert” to exempt status in 2006 or 2007, when it first sought to comply with the verification requirement in 42 U.S.C. § 3607(b)(2)(C)(iii) and 24 C.F.R. § 100.307. They argued that any attempt to convert to exempt status at that time was ineffective because, as RISA admits, RISA was then restricting ownership and residence in Ryderwood to persons age 55 or older. The plaintiffs argued that RISA never properly “converted” to exempt status and thus cannot claim the benefit of the exemption. They contended that, “because RISA has never successfully converted to HOPA compliance [by achieving compliance without engaging in discrimination], RISA’s discriminatory conduct constitutes a violation of the FHA.” Pls.’ Mot. Partial Summ. J. 13; see also Pls’ Reply Supp. Mot. Summ. J. 2 (“Plaintiffs assert RISA is not HOPA compliant presently because it wrongfully discriminated against families with children while attempting to convert to HOPA compliance.”).

In its opposition to plaintiffs’ motion, and its own motion for partial summary judgment, RISA argued that it was permitted to rely on the HOPA exemption so 774*774 long as it established that it was in compliance with each of the exemption’s requirements at the time the alleged discriminatory housing practice occurred, irrespective of whether it first achieved compliance with those requirements without discriminating. RISA contended that “a community is entitled to rely on the exemption if in compliance as of the date of the alleged act of discrimination.” Defs.’ Opp’n Pl.’s Mot. Partial Summ. J. 18.

RISA also argued that it has satisfied each of the three requirements of the HOPA exemption at all relevant times:

1. 80 Percent Occupancy. The FHA requires a community claiming the HOPA exemption to show that “at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older.” 42 U.S.C. § 3607(b)(2)(C)(i). RISA argued that it has satisfied this requirement through an age verification survey that it completed in September 2007. That survey found that there were 273 available total housing units in Ryderwood, that 25 of those units were either vacant or unverifiable and that 248 housing units were occupied by at least one person age 55 or older. Thus, according to RISA’s survey, over 90 percent of the available units were occupied by persons 55 years of age or older on that date.

2. Policies and Procedures Demonstrating an Intent to Operate as a 55 or Older Community. The FHA also requires a community to show that “the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent” to operate as a community for persons 55 or older. Id. § 3607(b)(2)(C)(ii). RISA argued that it has satisfied this requirement by enforcing age restrictions and posting signs throughout the community stating that residency is limited to those 55 and older.

3. Verification by Reliable Surveys and Affidavits. RISA also argued that it has satisfied the requirement for verifying occupancy “by reliable surveys and affidavits.”Id. § 3607(b)(2)(C)(iii)(I). RISA contended that it completed a survey of all residents in September 2007. The survey entailed “a request for each resident to show they met the 55+ condition by providing a drivers license, birth certificate, passport, and/or a state identification card.” Defs.’ Mot. Partial Summ. J. 22.

RISA also argued that it satisfied the verification requirement before 2007 because, although no age verification surveys were conducted, it “engaged in less formalized processes that were equally effective.” Id. RISA presented evidence that it maintained and “regularly updat[ed] an active rolodex that records each residence by address and the current identi[t]ies of each resident.” DeBriae Summ. J. Decl. ¶ 18. The rolodex cards include notations of residents’ dates of birth. RISA also maintained “a Ryderwood phone book, which lists all residents in Ryderwood.” Id. ¶ 19.

In the event that a new resident moves to Ryderwood, this information would be reflected in our annual phone list update, which would then be reflected in RISA’s files. If this person was not known to us or not a member, a volunteer from RISA would stop at that home and ask them to join RISA which, since 1996, has included requiring them to verify their age.

Id. In addition, when properties in Ryderwood are sold, RISA asks title companies “to inform the buyers that they need to contact the RISA office and to sign a membership certificate.” Id. ¶ 20.

The plaintiffs challenged the adequacy of RISA’s September 2007 survey in their opposition to RISA’s motion for partial summary judgment. They asserted a number of flaws in the survey, arguing 775*775 that the survey therefore failed to satisfy the FHA’s statutory and regulatory requirements.

III.

The district court granted partial summary judgment to the plaintiffs and denied RISA’s motion for partial summary judgment. The court accorded deference to HUD’s 2006 policy guidance under Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), which holds that judicial deference is owed to an agency’s interpretation of its own regulations. The court agreed with the plaintiffs that the guidance bars a defendant from qualifying for the HOPA exemption unless the community first achieved compliance with the exemption’s requirements without discriminating against families with children. The court ruled that “[t]he memo is clear that under the regulations, once the transition period ended in May of 2000, any existing community seeking to comply with the HOPA is required to cease discrimination during the period of gaining compliance.” Order Granting Mot. Partial Summ. J. June 4, 2010, at 12-13. The court ruled that RISA could not claim the HOPA exemption because it continued to discriminate while attempting to comply with the verification requirements.

In attempting to comply with the HOPA requirements [by completing an age verification survey in 2007], RISA admits that it . . . never ceased discriminating against persons under the age of fifty-five. Therefore, the Court concludes that RISA is not entitled to summary judgment on its affirmative defense that it is compliant with the HOPA.

Id. at 13 (citation omitted). Having rejected RISA’s HOPA defense, the court concluded that RISA’s rules restricting sales of homes in Ryderwood violated the FHA. The court did not address the plaintiffs’ alternative argument that RISA did not qualify for the HOPA exemption because the 2007 survey failed to satisfy the age verification requirements set out in § 3607(b)(2)(C)(iii) and 24 C.F.R. § 100.307. The district court subsequently granted the plaintiffs’ motion for a preliminary injunction, ordering RISA to “immediately cease any and all enforcement of age restrictions on the sale, rental, or residency of homes in Ryderwood.” Order Granting Prelim. Inj. Mot. Aug. 11, 2010, at 5.

RISA timely appealed the preliminary injunction order. The district court also certified its summary judgment order for interlocutory appeal, and we granted RISA permission to appeal. See 28 U.S.C. § 1292(b). We also granted RISA’s motion for a stay of the injunction pending appeal and invited the Secretary of HUD to file an amicus brief. We are grateful to the Secretary for having done so.

STANDARD OF REVIEW

We review de novo a district court’s grant or denial of a motion for partial summary judgment. See Aguilera v. Alaska Juris F/V, O.N. 569276, 535 F.3d 1007, 1009 (9th Cir.2008) (denial); Dare v. California, 191 F.3d 1167, 1171 (9th Cir. 1999) (grant). We review for an abuse of discretion the district court’s grant of a preliminary injunction.See Nike, Inc. v. McCarthy, 379 F.3d 576, 580 (9th Cir. 2004).

We defer to HUD’s reasonable interpretation of the FHA. See Meyer v. Holley, 537 U.S. 280, 287-88, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003); Harris v. Itzhaki, 183 F.3d 1043, 1051-52 (9th Cir.1999). “[T]he agency is entitled to further deference when it adopts a reasonable interpretation of regulations it has put in force.” Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1214 (9th Cir.2009) (quoting 776*776 Fed. Express Corp. v. Holowecki, 552 U.S. 389, 397, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) (internal quotation marks omitted)). “[W]e accept the agency’s position unless it is `plainly erroneous or inconsistent with the regulation.'” Fed. Express Corp., 552 U.S. at 397, 128 S.Ct. 1147 (quoting Auer, 519 U.S. at 461, 117 S.Ct. 905). “Further, an agency’s litigation position in an amicus brief is entitled to deference if there is `no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter.'” Barrientos, 583 F.3d at 1214 (quoting Auer, 519 U.S. at 462, 117 S.Ct. 905). Finally, HUD’s “interpretive policy statements are at least `entitled to a measure of respect under the less deferential Skidmore standard.'”Id. (quoting Fed. Express Corp., 552 U.S. at 399, 128 S.Ct. 1147). In interpreting the HOPA exemption, we bear in mind that “[e]xemptions from the Fair Housing Act are to be construed narrowly, in recognition of the important goal of preventing housing discrimination.” United States v. City of Hayward, 36 F.3d 832, 837 (9th Cir.1994)(quoting Massaro v. Mainlands Section 1 & 2 Civic Ass’n, 3 F.3d 1472, 1475 (11th Cir.1993) (internal quotation marks omitted)).

DISCUSSION

RISA does not dispute that it engages in conduct that, unless exempt, constitutes unlawful familial status discrimination under the FHA. RISA restricts ownership and residence in Ryderwood to persons who are 55 years of age or older, practices that would violate several provisions of the FHA. See 42 U.S.C. § 3604(a)-(d). The sole issue, therefore, is whether RISA is exempt from the FHA’s prohibitions on familial status discrimination under one of the housing for older persons exemptions set out in § 3607(b). RISA relies exclusively on the 55 or older exemption (“the HOPA exemption”). See id. § 3607(b)(2)(C). As the HOPA exemption is an affirmative defense, RISA bears the burden of establishing that Ryderwood satisfies each of the HOPA requirements. See Massaro, 3 F.3d at 1475; Gibson v. Cnty. of Riverside,181 F.Supp.2d 1057, 1076 (C.D.Cal.2002); 64 Fed.Reg. at 16,325. RISA must show that it satisfied the HOPA requirements at the time that the alleged discriminatory housing practice occurred.^[7]

The district court concluded that RISA does not qualify for the HOPA exemption with respect to any time between the end of the transition period in May 2000 and the present. We agree in part and disagree in part with that conclusion. The court properly concluded that RISA did not qualify for the HOPA exemption between May 2000 and September 2007, when RISA completed its first HOPA verification survey, because during that time RISA did not verify by reliable surveys and affidavits—or through other adequate means—that at least 80 percent of its occupied units were occupied by at least one person who was 55 years of age or older. See 42 U.S.C. § 3607(b)(2)(C)(iii). The 777*777 court erred, however, when it concluded that RISA was barred from availing itself of the exemption beginning in September 2007, when it completed the initial verification survey, merely because it had failed to “convert” to exempt status without engaging in familial status discrimination.

I. Compliance Between May 2000 and September 2007

To qualify for HOPA’s affirmative defense, a community must satisfy all three statutory and regulatory requirements. See Hayward, 36 F.3d at 837; see also 42 U.S.C. § 3607(b); 24 C.F.R. §§ 100.304-100.307.^[8] Between May 2000 and September 2007, RISA did not satisfy one of these requirements—the obligation to verify by reliable surveys and affidavits that at least 80 percent of Ryderwood’soccupied units were occupied by at least one person who was 55 years of age or older. See 42 U.S.C. § 3607(b)(2)(C)(iii); 24 C.F.R. § 100.307.

RISA did not perform verification surveys between 2000 and 2006. With respect to 2000-2004, RISA concedes that it did not conduct surveys. See Opening Brief 2 (“RISA does not dispute that in the years 2000-04, it failed to conduct a formal `HOPA survey’ to verify Ryderwood residents’ ages, as HOPA regulations provide . . . .”). With respect to 2005-2006, RISA contends that it did conduct a survey, but has declined to place evidence of the 2006 survey in the record, instead relying exclusively on the September 2007 survey to establish its compliance with HOPA. We construe RISA’s actions as a concession that the 2006 survey does not satisfy HOPA.

RISA nonetheless argues that it satisfied the age verification requirement between 2000 and 2006 because, although it did not conduct adequate verification surveys during that period, it “engaged in less formal verification processes that were equally effective.” Opening Br. 28. RISA describes these efforts as follows:

Every home in Ryderwood is subject to the bylaws and deed conditions that require all owners to abide by the 55 and over provision. RISA requires every homeowner to join RISA, and to confirm his or [her] age upon joining. RISA regularly updates its rolodex of all families and its annual neighborhood phone book. This multi-faceted process of verification complemented the covenants and bylaws [that restrictRyderwood to persons 55 or older].

Id.

These verification efforts fall short of the statutory requirements. To satisfy HOPA’s verification requirement, a community must verify the age of its residents at least once every two years; the verification must cover all housing units in the community; residents’ ages must be verified using reliable documents; a record of the verification, including copies of the relevant documentation, must be maintained in the community’s files; and the community must be able to produce that record in response to a complaint of discrimination. See 24 C.F.R. § 100.307(a)-(e). Whether considered individually or collectively, the verification efforts described by RISA— the rolodex cards and RISA membership forms—do not satisfy these criteria.

1. The Rolodex. RISA apparently maintains a rolodex card for each home in theRyderwood community. 778*778 Based on our review of the four sample cards RISA has included in the excerpts of record, we infer that each card contains a list of household residents and information about their dates of birth.

These cards do not satisfy HOPA, however. First, they provide current information on Ryderwood residents, rather than providing a record of verifications that should have been conducted biennially between 2000 and 2006. RISA cannot rely on current rolodex information to establish that it verified the ages of Ryderwood’sresidents in 2000, 2002, 2004 or 2006— especially when no claim has been made that any such verifications actually occurred. Second, although the cards include information about residents’ ages, RISA does not contend that this information rests on reliable documentation, such as driver’s licenses, birth certificates, passports and signed certifications, as § 100.307(d) requires.

2. RISA Membership Forms. RISA also argues that its membership forms satisfy the HOPA verification requirement between 2000 and 2006. RISA explains that it has continuously required Ryderwood homeowners to join its association. To become members, residents are required to complete and sign a membership form. Since 1996, that form has required residents to include information regarding their ages. RISA contends that the existence of these forms is adequate to establish that it verified Ryderwood’s compliance with the occupancy requirement at all times between 2000 and 2006.

We disagree. Verifications, which must take place at least once every two years, occur at fixed points in time. To satisfy the requirement, a community must do more than collect some data over some period of time. It must collect complete data for all residences. The data must be current (as of the time of the verification). And the community must compile the data: the community must show that it actually used the data to verify that the community in fact satisfied HOPA’s 80 percent occupancy requirement at the time of the verification. Here, we have no basis to conclude that the membership forms covered all residences or that they provided current information at any time between 2000 and 2006. See Brief of the Secretary of the U.S. Department of Housing and Urban Development as Amicus Curiae (“HUD Br.”) 22 (“Requiring new residents to join RISA and purportedly attest to their age does not establish that all members or an occupant of all households have signed this verification, nor has RISA so claimed . . . . Notwithstanding the bylaws’ requirement that homeowners be at least 55 years old, RISA membership forms dated from 1990-1992 did not specifically require that a resident report his or her age.”). Furthermore, even if the membership forms contained complete and current information, at no time between 2000 and 2006 did RISA use the information to verify that the occupancy requirement was satisfied. We agree with the HUD Secretary that “[t]he mere possession of various records collected over the years . . ., without more, is inadequate to satisfy the verification obligation. A community must collate information from its files to assess whether, in fact, it has verifiable data of all current occupants and it satisfies the 80% occupancy requirement.” Id. at 20-21. Here, RISA “has not shown that it has compiled a list of RISA members and compared [the membership] data with occupants for any given year to verify that the 80% occupancy requirement was met.” Id. at 22. Merely requiring residents to fill out membership forms, “absent any compilation of data, is . . . insufficient to meet the verified survey requirement.”Id.

779*779 We accordingly agree with HUD that “RISA’s pre-2007 efforts fail to satisfy HOPA’s age verification requirements.” Id. In doing so, we do not disagree with RISA’s contention that the HOPA verification requirement may be satisfied by means other than conducting a survey: HUD’s regulations provide that a community may verify occupancy “through surveys or other means.” 24 C.F.R. § 100.307(c) (emphasis added).^[9] The means employed, however, must satisfy the minimum criteria established by the statute and regulations. The efforts undertaken by RISA between 2000 and 2006 do not do so. (Nor were they designed to do so. SeeDeBriae R. 30(b)(6) Dep. 31:3-19, Feb. 12, 2010 (testifying that it was not until spring 2006 that RISA even decided to comply with the HOPA requirements).) The district court thus properly concluded that RISA does not qualify for the HOPA exemption between 2000 and 2006.

II. RISA’s Compliance Since 2007

The district court concluded that, even assuming that RISA completed a valid verification survey in September 2007, it cannot qualify for the HOPA exemption because it neither achieved full compliance with HOPA’s requirements during the transition period nor properly “converted” to exempt status after the transition period ended by achieving full compliance without discriminating against families with children.

A.

We agree with HUD that the district court erred. The HUD Secretary’s amicus brief explains that

a community like Ryderwood, which has continuously operated as a retirement community for persons age 55 or older, can qualify for the HOPA defense after May 3, 2000(the end of the regulatory transition period) . . . by establishing that it currently satisfies the three statutory and regulatory criteria, even if it did not satisfy HOPA’s age verification requirement before the transition ended. Such a community is not barred now or in the future from asserting the HOPA defense, notwithstanding the fact that it may have engaged in familial status discrimination after the transition period and prior to establishing compliance with HOPA’s age verification requirement. To the extent the district court held otherwise, its ruling is in error.

HUD Br. 12-13.

HUD’s position is consistent with the FHA’s plain text. Section 3607(b) provides that a community is exempt from the prohibitions on familial status discrimination when the three HOPA requirements are satisfied. See 42 U.S.C. § 3607(b)(2)(C) (providing that the FHA’s familial status prohibitions do not apply to housing when “at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older,” that the “community publishes and adheres to policies and procedures” demonstrating the intent to operate as a HOPA community and that the “community complies with rules issued by [HUD] for verification of occupancy” (emphasis added)). Nothing in the statute suggests that a community’s past actions preclude it from qualifying for the exemption based on current compliance.

780*780 The district court erred by relying on HUD’s 2006 policy guidance to reach a different conclusion. The guidance addresses a situation not presented here— “how a community that had not reached the 80% occupancy threshold by the end of the transition period could convert to housing for older persons and take advantage of the HOPA exception.” HUD Br. 24.

It does not address how a community that has consistently maintained the 80% threshold but has failed to comply with HOPA’s age-verification requirements can come into compliance with HOPA and take advantage of HOPA’s affirmative defense going forward. Nor does the guidance dictate what should happen prospectively if a community maintains the 80% threshold after the end of the transition period by engaging in familial-status discrimination. Thus, to the extent the district court concluded that HUD’s 2006 guidance dictated that RISA is not entitled now or in the future to take advantage of the HOPA exception, that reliance was incorrect.

Nothing in HUD’s 2006 guidance forbids a housing community that has continuously operated as housing for persons 55 and over from availing itself of the HOPA exemption on a prospective basis simply because it has previously failed to comply with age-verification requirements.

Id.

This conclusion does not reward RISA for having disregarded the verification requirement, as the plaintiffs contend. Assuming arguendo that the September 2007 survey satisfies the verification requirement, RISA became exempt from the FHA’s prohibitions on familial status discrimination at that time, but RISA cannot claim the exemption for any prior period. See Hayward, 36 F.3d at 837 (housing must meet all three HOPA requirements to qualify for the exemption); HUD, Questions and Answers Concerning the Final Rule Implementing the Housing for Older Persons Act of 1995, at 13 (“If an individual files a complaint based on familial status and the housing community . . . claims the exemption as a defense, . . . [t]he community. . . has the burden of proving that it was in compliance with HOPA requirements on the date of occurrence of the alleged act or incident of discrimination.” (emphasis added)). Current compliance with the verification requirement, in other words, will not shield a community from liability for discrimination occurring before compliance was achieved. And any person aggrieved by that pre-compliance discrimination has two years in which to bring suit. See 42 U.S.C. § 3613(a)(1)(A)(“An aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice . . . .”). A community may not, therefore, disregard the verification requirement with impunity.

B.

The parties dispute whether RISA’s September 2007 survey satisfies the statutory and regulatory criteria. The district court, which has not yet addressed that issue, should do so on remand.

CONCLUSION

We affirm in part and vacate in part the district court’s grant of partial summary judgment to the plaintiffs. We vacate the preliminary injunction and remand for further proceedings. Each party shall bear its own costs on appeal.

AFFIRMED IN PART, VACATED IN PART and REMANDED.

[*] The Honorable Consuelo B. Marshall, Senior United States District Judge for the Central District of California, sitting by designation.

[1] “`Familial status’ means one or more individuals (who have not attained the age of 18 years) being domiciled with . . . a parent or another person having legal custody of such individual or individuals; or . . . the designee of such parent or other person having such custody, with the written permission of such parent or other person.” 42 U.S.C. § 3602(k). The protections against familial status discrimination also apply to “any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.” Id.

[2] Although not relevant here, the exemptions also include (1) housing provided under certain state or federal programs specifically designed and operated to assist elderly persons and (2) housing intended for, and solely occupied by, persons 62 years of age or older. See 42 U.S.C. § 3607(b)(2)(A)-(B).

[3] Until 1995, when Congress adopted HOPA, a community claiming the 55 or older exemption had to demonstrate “the existence of significant facilities and services specifically 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.” 42 U.S.C. § 3607(b)(2)(C)(i) (1994). HOPA eliminated that requirement and replaced it with the verification requirement now codified at 42 U.S.C. § 3607(b)(2)(C)(iii). See Taylor v. Rancho Santa Barbara, 206 F.3d 932, 935 (9th Cir.2000); Implementation of the Housing for Older Persons Act of 1995, 64 Fed.Reg. 16,324, 16,324 (Apr. 2, 1999).

[4] Only the summary of the surveys must be made available to the public. See 24 C.F.R. § 100.307(i); 64 Fed.Reg. at 16,328 (“Only the overall survey summary is required to be available for review, not the supporting documentation.”). The individual surveys, affidavits and copies of documentation, on the other hand, should be maintained in community files in the event they must be produced in response to a charge of discrimination. See 24 C.F.R. § 100.307(a), (h); 64 Fed.Reg. at 16,327 (“A summary of the information gathered in support of the occupancy verification should be retained for confirmation purposes. Copies of supporting information gathered in support of the occupancy verification may be retained in a separate file with limited access, created for the sole purpose of complying with HOPA, and not in general or resident files that may be widely accessible to employees or other residents. The segregated documents may be considered confidential and not generally available for public inspection. HUD, state or local fair housing enforcement agencies, or the Department of Justice may review this documentation during the course of an investigation.”).

[5] If, at the end of the transition period, the community satisfied the 80 percent occupancy requirement and continued to satisfy the other two HOPA criteria, it could continue to operate as an exempt community. If the community could not satisfy the 80 percent threshold at the end of the transition period, it could no longer claim the exemption or discriminate against families with children, but it would not be liable for having reserved unoccupied units for persons 55 or older during the one-year transition period. See 64 Fed.Reg. at 16,326.

[6] Among other things, the plaintiffs claim that they are injured because RISA’s age restrictions preclude them from marketing their homes for sale to potential buyers without restriction.

[7] See 24 C.F.R. § 100.304(a) (explaining that “[h]ousing qualifies for this exemption if . . . the housing community . . . complied with the HUD regulations in effect at the time of the alleged violation” (emphasis added)); 64 Fed. Reg. at 16,331 (explaining that the 80 percent “occupancy requirement must be met at the time of any alleged violation of the Act” (emphasis added)); HUD, Questions and Answers Concerning the Final Rule Implementing the Housing for Older Persons Act of 1995, at 13 (“If an individual files a complaint based on familial status and the housing community. . . claims the exemption as a defense, . . . [t]he community . . . has the burden of proving that it was in compliance with HOPA requirements on the date of occurrence of the alleged act or incident of discrimination.”(emphasis added)).

[8] In Hayward, we applied the pre-HOPA version of the 55 or older exemption. The same principle—that a community must satisfy all three statutory and regulatory requirements to qualify for the exemption—applies equally to the current version of the exemption, as the plain text of the statute and regulations dictate.

[9] Although other means of verification are permissible, a survey of occupants “is the most effective means” of collecting reliable data. HUD Br. 20. “Direct and timely communication with current occupants ensures that a community has verifiable data since the occupants themselves will provide the primary source documentation.” Id.

Keywords: Senior Housing

United States v. Plaza Mobile Estates

273 F.Supp.2d 1084 (2003)

Summary by Mary M. Howell, Esq.:

Facts

The U.S. sued the owners of numerous mobile home parks in the Los Angeles area, alleging that the parks’ rules, which regulated or prohibited use of recreational facilities by children in the communities, constituted familial status discrimination in violation of federal and state laws. The rules fell into several categories, including complete prohibition of use, or restriction of use to specified hours, based on age, and a requirement that an adult accompany a child who used facilities. The owners of the parks argued that such rules addressed legitimate health and safety concerns (such as pool safety).

Held

For the U.S. The court found that any legitimate health and safety concerns could be less restrictively addressed by rules which required the children to act in a safe manner or to be tested for swimming proficiency by the owner of the premises.

*** End Summary ***

United States v. Plaza Mobile Estates

273 F.Supp.2d 1084 (2003)

1085*1085 1086*1086 Fernando M. Olguin, Traber & Voorhees, Pasadena, CA, Debra W. Yang, Los Angeles, CA, for plaintiff.

Marilyn L. Bonetati, Bonetati & Associates, Terry Rex Dowdall, Dowdall Law Offices, Orange, CA, George Steven Andersen, James F. Keleher, Andersen & 1087*1087Keleher, Manhattan Beach, CA, Michael Visalia, CA, for defendants.

MEMORANDUM RE MOTION BY PLAINTIFF AND PLAINTIFF-INTERVENORS FOR PARTIAL SUMMARY JUDGMENT RE: PARK RULES

TAKASUGI, Senior District Judge.

This matter has come before the court on the motion by plaintiff-intervenors and plaintiff United States of America for partial summary judgment against defendants Joseph Sherman, Mike and Darla Morton, and George Briggs re: park rules. Having considered the pleadings and other papers filed herein, the court issues this memorandum in lieu of findings of fact and conclusions of law.

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” By this motion, plaintiff United States of America and plaintiff-intervenors seek (1) declaration that rules and regulations at Walnut Hills Mobile Home Community (“Walnut Hills”), Rancho La Seda Mobile Home Community (“Rancho La Seda”), Sierra Pines Mobile Home Country Club (“Sierra Pines”), Rancho La Puente Mobile Home Community (“Rancho La Puente”), Rancho Hermoso Mobile Home Park (“Rancho Hermoso”), and Park Santa Anita (“Santa Anita”) have restricted or denied access to facilities and/or areas on the basis of age in violation of the Fair Housing Act, 42 U.S.C. §§ 3601, et seq.; and (2) injunctive relief, precluding any further publication or enforcement of the discriminatory rules at Walnut Hills, Rancho La Seda, and Sierra Pines (collectively, “Current Parks”).

The Current Parks are mobile home parks presently owned by Defendant Joseph Sherman (“Sherman”). Rancho La Puente, Rancho Hermoso, and Park Santa Anita (collectively, “Previously Owned Parks”) are mobile home parks previously owned by Defendant Sherman. The mobile home parks, Rancho La Puente and Rancho Hermoso were sold by Defendant Sherman in 1996 and 1995, respectively. Park Santa Anita was closed in 1994.

Defendant George Briggs (“Briggs”) was the on-site manager of Park Santa Anita from 1989 to 1994. Beginning in 1994, per the request of Defendant Sherman, Defendant Briggs served as supervisor to the on-site managers of Rancho Hermoso, Rancho La Puente, and Rancho La Sedo. Shortly thereafter, Defendant Briggs additionally served as supervisor to the on-site managers of Sierra Pines and Walnut Hills. From February 1992, to April 1995, defendants Mike and Darla Morton (collectively, the “Mortons”) managed Walnut Hills.

AGE RESTRICTIVE RULES AT THE MOBILE HOME PARKS

Of the six mobile home parks in question herein, Walnut Hills, Sierra Pines, and Rancho Hermoso had, in 1989, preambles to their rules stating that the park was “designed and built as an adult facility.” In 1993, Rancho La Seda’s preamble to its rules stated that it was “designed as an ADULT facility.”

As of March 10, 1989, mobile home park rules at Sierra Pines, restricting access or denying the use of park facilities and/or areas on the basis of age, included the following: (a) Children under the age of fourteen(14) years old shall not be allowed to ride a bicycle on the park streets 1088*1088 without the accompaniment of an adult registered to the mobile home in which they reside, (b) Children under the age of eight (8) years old must be confined to a play area in the rear fenced yard of the family residence; (c) Children shall not be allowed to play on park streets, or in any other common areas; (d) Residents under the age of eighteen (18) years old shall not be permitted to use the recreation building (clubhouse) or any other recreational facilities without the accompaniment of an adult registered to the mobile home in which they reside; (e) Residents under the age of eighteen (18) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse); (f) Residents and visitors under the age of eighteen (18) years old may use the swimming pool and sun deck during the hours of 10:00 a.m. to 12:00 p.m. (noon) every day. Residents and visitors under the age of eighteen (18) years old are not permitted around the pool or sun deck after 12:00 noon; (g) Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas or the therapeutic jet pool at any time; and (h) Children under the age of fourteen (14) years old must be accompanied by a registered resident adult to be allowed to ride a bicycle in the park streets.^[1]

From March, 1995, to the present date, rules at Sierra Pines, restricting access or denying the use of park facilities and/or areas on the basis of age, include the following: (a) The adult resident host must accompany all guests of their mobilehome who use the recreation building (clubhouse) or any of the recreational facilities of the park; (b) Children under the age of fourteen (14) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse), and (c) Residents and visitors under the age of fourteen (14) years old are not permitted to use the saunas or the therapeutic jet pool (spa) at any time. As of March, 1995, supplemental park rules and regulations regarding the recreation building policies of Sierra Pines mandated that, when using the club-house, persons under ten (10) years old must be accompanied by an adult resident. In 1997, Sierra Pines had rules posted that provided: (a) Use of the billiards room was restricted to residents over eighteen (18) years old; (b) Use of the spa was prohibited to children under eighteen (18) years old; and (c) Use of the pool by children fourteen (14) years old and under required accompaniment by a resident.

As of July, 1989, rules at Walnut Hills restricting access or denying the use of park facilities and/or areas on the basis of age included the following: (a) Bicycle riding by anyone is prohibited unless accompanied by adult resident parent or adult host; (b) Any guest walking or riding bicycles must be accompanied by an adult resident; (c) Residents under the age of eighteen (18) years old shall not be permitted to use the recreation facility without the accompaniment of an adult registered to the mobile home in which they reside, except no one under twenty-one (21) years old may use the billiard room at any time; (d) Parent of resident child or resident host must accompany children at all times in the pool or pool area; (e) Guests and residents under the age of eighteen (18) 1089*1089 years old are permitted to use the swimming pool and sun deck from the hours of 9.00 a.m. to 12 noon only and must be accompanied by the parent or resident child or resident host; and (f) Any coach where children reside must be fenced.

From December, 1992, to the present date, rules at Walnut Hills, restricting access or denying the use of park facilities and/or areas on the basis of age, include the following: (a) Persons under fourteen (14) years old must be accompanied by a registered adult resident to be in the clubhouse; (b) No one under the age of eighteen (18) years old is permitted in the billiard room at any time; (c) Persons under fourteen (14) years old must be accompanied by a registered adult resident to use recreational facilities; (d) No one under the age of fourteen (14) years old is allowed to use the Jacuzzi; and (e) Bicycle riding by anyone under fourteen (14) years old and guest children under eighteen (18) years old must be accompanied by a responsible adult. Posted rules at Walnut Hills further provide that persons under fourteen (14) years old must be supervised by a registered adult to use the tennis courts.

As of February, 1990, rules at Rancho La Seda restricting access or denying the use of park facilities and/or areas on the basis of age included the following: (a) Adult park residents must accompany all guest[s] using the swimming pool or sun deck unless Park management permission is previously obtained; (b) Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 10:00 a.m. to 2:00 p.m. only and must be accompanied by an adult park resident; (c) At 2:00 p.m. children are to be out of the pool area; (d) Children are not to walk around the Park without adult supervision; and (e) Bicycle riding by anyone under the age of eighteen (18) yeas old is prohibited.

As of August, 1993, rules at Rancho La Sedo restricting access or denying the use of park facilities and/or areas on the basis of age included the following: (a) Residents under the age of fourteen (14) years old, shall not be permitted to use the recreation facilities without the accompaniment of an adult resident; (b) Parent or responsible adult must accompany all children under fourteen (14) years old at all times [in the swimming pool and/or pool area]; and (c) Bicycle riding by anyone under fourteen (14) years old and visitor children under the age of fourteen (14) years old, must be accompanied by a responsible adult.

From July, 1997, to the present date, rules at Rancho La Seda restricting access or denying the use of park facilities and/or areas on the basis of age, include the following: (a) Persons under fourteen (14) years old must be accompanied by a registered adult resident to be in the clubhouses; (b) No one under the age of eighteen (18) years old is permitted in the billiard room at any time; and (c) Bicycle riding by anyone under fourteen (14) years old and guest children under eighteen (18) years old must be accompanied by a responsible adult.

From March, 1989, to at least May, 1995, rules at Rancho Hermoso, restricting access or denying the use of park facilities and/or areas on the basis of age, included the following: (a) Children under 18 years old must be accompanied by a parent when they are in the swimming pool; (b) Minors under 16 years old are not permitted in the therapeutic pool; (c) For safety, children are not to ride bicycles, roller skates, skateboards, play in the street, play in RV storage, car wash, or wander around the park; (d) Children under 8 years old shall be confined to a play area in the rear fenced yard of the family residence; and (e) Residents under 18 years old shall not be permitted to use the recreation hall or 1090*1090 any other recreation facility without the accompaniment of an adult registered to the mobile home in which they reside.

From September, 1990, to at least June, 1991, rules at Rancho La Puente restricting access or denying the use of park facilities and/or areas on the basis of age, included the following: (a) Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 10:00 a.m. to 2:00 p.m. only and must be accompanied by an adult Park resident; (b) At 2:00 p.m. children are to be out of the pool area; and (c) Children are not to walk around the park without adult supervision.

From 1989, to at least 1994, rules at Santa Anita, restricting access or denying the use of park facilities and/or areas on the basis of age, included the following: (a) All children must be accompanied by an adult to use the pool; (b) Children must be supervised by an adult when using park streets; and (c) Children must be supervised by their parents in the laundry room area.

FAIR HOUSING ACT

In 1968, Congress promulgated the Fair Housing Act,42 U.S.C. §§ 3601, et seq., (“FHA”) to prohibit discrimination on the basis of race, color, religion, or national origin. In 1988, Congress enacted the Fair Housing Amendments Act (“FHAA”) amending the FHA to proscribe “familial status” discrimination. “Familial status” is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with … a parent or another person having legal custody of such individual or individuals.” 42 U.S.C. § 3602(k)(1). Specifically, under the FHA it is unlawful:

(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of … familial status ….

(b) To discriminate against any persons in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of … familial status ….

(c) To make, print, or publish, or cause to be made, printed or published by any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on … familial status … or on intention to make any such preference, limitation, or discrimination.

42 U.S.C. § 3604; see also 24 C.F. R. § 100.65. Moreover, section 3617 of the FHA provides that, “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by … section 3604.” 42 U.S.C. § 3617.

An example of “mak[ing] unavailable” in violation of § 804(a) is “steering.” “Steering” is “not an outright refusal to rent to a person within a class of people protected by the statute; rather it consists of efforts to deprive a protected homeseeker of housing opportunities in certain locations.”HUD v. Edelstein, Fair Housing-Fair Lending ¶ 25,018, p. 25,236 and 25,239 (1991). “A landlord cannot justify steering families with children away from housing by groundlessly claiming that the housing would be unsafe for resident children. As a general rule, safety judgments are for informed parents to make, not landlords.” Edelstein, supra, at 25,239.

1091*1091 Fair Housing Congress v. Weber, 993 F.Supp. 1286, 1293 (C.D.Cal.1997).

The standard for determining whether a given statement [or rule] violates § 804(c) [42 U.S.C. section 3604(c)] is whether the statement suggests a preference to the ordinary reader or listener. U.S. v. Hunter, 459 F.2d 205, 215 (4th Cir.) cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972), Ragin v. New York Times Co., 923 F.2d 995, 999-1000 (2d Cir.) cert. denied, 502 U.S. 821, 112 S.Ct. 81, 116 L.Ed.2d 54 (1991). No discriminatory intent is required. Jancik v. HUD, 44 F.3d 553, 556 (7th Cir.1995).

Weber, 993 F.Supp. at 1290.

Limiting the use of privileges and facilities associated with a dwelling because of familial status is a violation of § 804(b) [42 U.S.C. section 3604(c)]. 24 C.F.R. § 100.65(b)(4). Plaintiff [makes] out a prima faciecase of discrimination by showing facially discriminatory rules which treat children, and thus, families with children, differently and less favorably than adults-only households. United States v. Badgett, 976 F.2d 1176 (8th Cir.1992). Once a prima facie case is established, defendants must articulate a legitimate justification for their rules.Badgett, 976 F.2d at 1178. In making that showing, defendants must establish that their rules constitute a compelling business necessity and that they have used the least restrictive means to achieve that end. Fair Housing Council v. Ayres, 855 F.Supp. 315, 318-19 (C.D.Cal.1994);U.S. v. M. Westland Co., CV 93-4141, Fair Housing-Fair Lending ¶ 15,941 (HUD ALJ 1994).

Weber, 993 F.Supp. at 1292.

PRIMA FACIE CASE

It is clear from the age restrictive rules discussed above that the rules at issue here (the past rules from 1989 to the present at the Current Parks and the past rules from 1989 until the sale or closure of the Previously Owned Parks) are facially discriminatory. As was found in Weber, they “treat children, and thus, families with children, differently and less favorably than adults-only households.” Id.

The preambles discussed above that described certain parks as “adult” parks are clear examples of illegal steering. Although they are not outright refusals to sell or rent to families with children, they indicate a preference for adults only and certainly discourage families with children from applying.

Thus, the issue becomes whether defendants have a legitimate justification for the discrimination rising to the level of a compelling business necessity as to which the least restrictive means to achieve such end has been used.^[2] The business justifications articulated by defendants are (1) health and safety considerations and (2) a defense based on defendants’ compliance with a conciliation agreement, which was approved by the United States Department of Housing and Urban Development (“HUD”).

HEALTH AND SAFETY CONSIDERATIONS

Considering the various age restrictive rules, they appear to fall into three categories: (1) absolute prohibitions, (2) adult supervision requirements, and (3) hours of access restrictions.

The absolute prohibitions include those rules that (1) prohibit all children under 18 (or 21) years old from using the 1092*1092 billiard room and from riding bicycles, (2) prohibit all children under 16 (or 18) years old from using the therapeutic pool, (3) prohibit all children under 14 (or 18) years old from using the sauna or jacuzzi, (4) require all children under 8 years old to be confined to rear fenced yard of family residence, and (5) prohibit all children^[3] from playing on park streets and any other common areas. Although the health and safety of the children and other residents of the park are legitimate concerns, these absolute prohibitions are not the least restrictive means to achieve such ends. Certainly, prohibiting all “children” from playing in common areas while allowing “adults” to do so cannot be justified. Moreover, it is unclear how a 17-year-old’s access to a billiard room is any more hazardous to his/her or anyone else’s health or safety than a 22-year-old’s access. Any concerns that defendants may have are not necessarily linked to age, and any concerns about problem behavior can be addressed with the use of rules. The same applies to the blanket prohibition of all 15-year-olds from using the therapeutic pool and all 13-year-olds from using the sauna or jacuzzi. Defendants’ concerns do not appear to be age related and can be resolved with the use of rules. Moreover, the issue here is not whether a toddler or 5-year-old should be allowed unsupervised access to a jacuzzi. Even assuming arguendo that defendants’ concerns were more logically linked to the age restrictions, requiring adult supervision rather than imposing an absolute ban is clearly a less restrictive means.

Adult supervision requirements include those rules that require adult supervision for (1) children under 18 years old using recreational facilities (recreation building and/or clubhouse), swimming pool, sun deck, saunas and laundry room; (2) children under 14 years old using recreational facilities, swimming pool and tennis courts, and riding bicycles; (3) children under 10 years old using recreational facilities; and (4) all children walking around the park. Certainly, prohibiting all children from walking around the park without adult supervision is overly broad regardless of the concern. As with the absolute prohibitions, these adult supervision requirements are also not the least restrictive means to achieve any health and safety objectives. First of all, there is nothing magical about the age of 18 or 14 years old if defendants’ concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles. Such concerns could be addressed with the use of rules. Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement.^[4]

1093*1093 The hours of access restrictions include those rules that prohibit use of the swimming pool and sun deck to children under 18 years old except during certain hours (i.e., between 10:00 a.m. and 12:00 noon, 9:00 a.m. and 12:00 noon, or 10:00 a.m. and 2:00 p.m.). Defendants attempt to justify these swimming pool hour restrictions as “equitably accounting for the interests of tenants.” Clearly this is not a compelling interest. Nor, can the interest or desire of the adult tenants to discriminate against children ever justify such discrimination.

HUD-APPROVED CONCILIATION AGREEMENT

In October of 1989, Eric C. Mattauch filed a complaint with HUD claiming familial status discrimination by Walnut Hills. In September of 1990, Glenda Godfrey filed a similar complaint against Walnut Hills. With the intervention and approval of HUD, Mattauch and Godfrey entered into identical conciliation agreements (“Conciliation Agreement”) with Sam Catalano, Walnut Hills manager, who signed on behalf of owner defendant Joseph Sherman. The conciliation agreement required the implementation of revised rules and regulations concerning age restrictions.^[5]

In defense of their facially discriminatory rules, defendants contend that HUD’s approval of the Conciliation Agreement requires the conclusion that the revised rules thereunder do not violate the FHAA. However, it is the court, not HUD, that is the final arbiter in determining whether the rules are in compliance with the FHA or the FHAA. Although the question of estoppel is not directly raised by defendants, this defense of using the Conciliation Agreement as a shield, is essentially seeking to estop plaintiff from being able to claim that the revised rules under the Conciliation Agreement discriminate based on familial status.

Estoppel is “an equitable doctrine invoked to avoid injustice in particular cases.”Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 59, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984). It provides a defense to one who has detrimentally relied on the conduct of another such that “it would be unjust to deprive him of that which he thus acquired.” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 894(1) (1979)). However,

[w]hen the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant.

Id. at 60, 104 S.Ct. 2218. There is no “flat rule that estoppel may not in any circumstances run against the Government,” given that there may be cases “in which the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some1094*1094 minimum standard of decency, honor, and reliability in their dealings with their Government.” Id. at 60-61, 104 S.Ct. 2218.

Here, defendants have no equitable estoppel claim against plaintiff-intervenors, as defendants have not relied on the conduct of plaintiff-intervenors to their detriment or in such a manner as to change their “position for the worse.” See Id., at 59, 104 S.Ct. 2218. The issue of estoppel arises solely as to plaintiff United States of America, as the conduct of its agent, HUD investigator, San Drake, served to trigger defendants’ reliance on the Conciliation Agreement, and the mandatory rules and regulations implemented thereunder. However, even as against plaintiff, defendants have not suffered from a detrimental change in position. Any detriment defendants may have suffered derives from adopting the revised rules and regulations pursuant to the Conciliation Agreement. Although such rules may have been less discriminatory than the rules previously in place, defendants’ reliance on the Conciliation Agreement has not resulted in defendants having relinquished any legal right or benefit or otherwise changing their position for the worse. Nor have defendants acquired anything as a result, the deprivation of which would be unjust. Defendants cannot claim that their reliance on the Conciliation Agreement gives them the right to continue to discriminate; the Conciliation Agreement cannot justify the perpetuation of discrimination. As such, the conciliation agreement provides no defense to the claims for declaratory or injunctive relief.

CONCLUSION

Based on the foregoing, this court finds that (1) plaintiff United States of America and plaintiff-intervenors are entitled to summary judgment for declaratory and injunctive relief against defendants Joseph Sherman, Mike and Darla Morton, and George Briggs on the grounds that rules and regulations at Walnut Hills, Rancho La Seda, and Sierra Pines, from 1989 to the present, have restricted or denied access to facilities and/or areas on the basis of age in violation of the FHA, and (2) plaintiff United States of America is entitled to summary judgment for declaratory relief against defendants Joseph Sherman, Mike and Darla Morton, and George Briggs on the grounds that rules and regulations at Rancho La Puente, Runcho Hermoso, and Park Santa Anita, from 1989 until the sale or closure of each park, restricted or denied access to facilities and/or areas on the basis of age in violation of the FHA.

This matter having come before the court on the motion by plaintiff-intervenors and plaintiff United States of America for partial summary judgment against defendants Joseph Sherman, Mike and Darla Morton, and George Briggs re: park rules, and the court having considered the pleadings and other papers filed herein, and having issued a memorandum in lieu of findings of fact and conclusions of law concurrently herewith,

IT IS ORDERED that the motion for partial summary judgment against defendants Joseph Sherman, Mike and Darla Morton, and George Briggs is granted as follows:

1. The age restrictive rules of Walnut Hills, Rancho La Seda, Sierra Pines, Rancho La Puente, Rancho Hermoso, and Santa Anita, specified in the concurrently filed memorandum, to wit: (1) preambles to the rules that have described certain parks as “adult” parks; (2) rules which have denied or limited access (including requiring adult supervision) with respect to use of recreational facilities (recreation building, clubhouse, billiard room, tennis courts), laundry room, swimming pool, therapeutic1095*1095 pool, sauna, jacuzzi, and sun deck; (3) rules which have prohibited or restricted (including requiring adult supervision) bicycle riding, playing on park streets and other common areas, and walking around the park; and (4) rules which require confinement in fenced yards, have restricted or denied access to facilities and/or areas on the basis of age in violation of the Fair Housing Act. 42 U.S.C. §§ 3601, et seq.; and

2. Plaintiff and plaintiff-intervenors are entitled to injunctive relief against defendants Joseph Sherman, Mike and Darla Morton, and George Briggs prohibiting the enforcement of the said age restrictive rules at Walnut Hills, Rancho La Seda, and Sierra Pines.

[1] Defendants object to the declaration of Bert Voorhees on the grounds that it lacks foundation, is not based upon personal knowledge, is speculative and contains inadmissible hearsay. However, Voorhees’ declaration is based on depositions referenced in the declaration and information obtained from defendants through the discovery process. As such, the declaration is based on personal knowledge and does not lack foundation. Moreover, the depositions and discovery production contain statements by a party opponent.

[2] With respect to the illegal steering, defendants proffer no justification.

[3] This blanket prohibition of all children without reference to a specific age is found in Sierra Pines’ rules of March 10, 1989. All other references to children in Sierra Pines’ rules as of March 10, 1989 specifies an age, such as “children under the age of EIGHT (8) years old,” or “children under FOURTEEN (14).” When said rule mentions persons under the age of eighteen years old, they are referred to as “residents” under the age of 18. As such, this use of “children” without specification of an age is ambiguous Nevertheless, the most reasonable interpretation of the term, “children,” when used without a specification as to age, is persons under the age of 18 years old.

[4] Some of the parks have had rules requiring adult residents to accompany all guests using recreational facilities, swimming pool or sun deck, or walking or riding bicycles. If such rules are enforced as to all guests, regardless of age, there is no discrimination. However, if such rules are only enforced against guests under the age of 18 years old, they, as with the other adult supervision requirements, are not the least restrictive means to achieve any health and safety objective.

[5] The revised Rules and Regulations for Walnut Hills contained the following age restrictions: (1) Residents under the age of fourteen (14) years, shall not be permitted to use the recreation facilities without the accompaniment of an adult resident; (2) No one under the age of eighteen (18) is permitted in the billiard room at any time; (3) Recreation Facilities and Equipment … Parent or responsible adult must accompany all children under fourteen (14) years of age at all times; (4) Playing on park lawns, guest parking, streets or riding of scooters, tricycles, roller skates, skate boards is strictly prohibited by anyone; (5) Bicycle riding by anyone under fourteen (14) years of age and guest children under eighteen (18) years of age must be accompanied by a responsible adult. The Rules and Regulations further restricted pool hours as posted on the pool gates.

Keywords: Civil Rights and Discrimination