ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
THIS CAUSE is before the Court upon Plaintiffs Motion for Preliminary Injunction [DE 11], filed March 27, 2012. The Court has carefully considered the motion,
STANDARD OF REVIEW
To obtain a preliminary injunction, a plaintiff must prove (1) a substantial likelihood of success on the merits, (2) irreparable injury absent an injunction, (3) that the irreparable injury outweighs whatever damage the injunction may cause the opposing party, and (4) that an injunction is not adverse to the public interest. Church v. City of Huntsville,
In ruling on a preliminary injunction, the Court makes preliminary findings of fact. At this stage, the evidentiary rules are relaxed. See Levi Strauss & Co. v. Sunrise Int’l Trading, Inc.,
BACKGROUND
Plaintiff (“Caron”) sued Defendant (the “City”) for violating the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Caron claims that the City has interfered with Caron’s rehabilitation center for individuals recovering from alcoholism and substance abuse. Caron argues that the City denied Caron a reasonable accommodation for a home it purchased in a single-family neighborhood. It also claims that the City is discriminating against Caron through its zoning ordinances. Caron seeks declaratory and injunctive relief as well as monetary damages, costs, and reasonable attorneys’ fees. This Court has jurisdiction of these claims under several statutes, including 28 U.S.C. § 1331 and 28 U.S.C. § 1343.
Caron has had alcohol and substance abuse rehabilitation facilities in Palm Beach County for more than 20 years. It previously operated housing in the City at an apartment complex. More recently, it acquired two large homes in single-family neighborhoods near the ocean on Ocean Drive, an affluent area. Caron has developed the two Ocean Drive houses to cater to professionals or others with highly suc
In early 2011, Caron purchased its first Ocean Drive residence (the “First Ocean Drive House”). The home was. a five bedroom, 6,120 square foot house. Caron wanted seven patients to stay at that location. The City had an ordinance limiting the number of unrelated individuals who could live together. On January 14, 2011, Caron applied for a reasonable accommodation to allow seven (7) unrelated individuals to reside together. The City requested more information on February 3, 2011, which Caron provided. The City granted the accommodation on February 14, 2011.
In January 2012, Caron purchased another home on Ocean Drive (the “Second Ocean Drive House”). This home was larger than the first, with 7,481 square feet. The previous month, Caron had applied for a reasonable accommodation so that the Second Ocean Drive House could also accommodate seven unrelated individuals. The application was essentially identical to the application submitted with the first request.
This time, substantial community opposition developed. For example, a community website opposing Caron’s plan stated,
Drug, Alcohol and Sex Addict Rehab Should not be a Vacation! Just say NO' to Transient Housing. These Sober Houses should not be in Residential neighborhoods!
The large Caron Corporation is trying to Bully the City of Delray Beach into providing high class rehabilitation centers for dangerous transient Drug, Alcohol and- Sex Addicts in the Beach area.... We urge all Delray Beach residents to be aware of the security risks and take action to stop this large corporate intrusion that threatens our safety, well-being and neighborhood character.
[DE 10-17], Citizens made many other similar comments. [DE 10-15,10-18].
Members of the zoning board and the Mayor also commented negatively about sober living facilities. One planning and zoning board member said that Caron’s plans threatened the survival of the City. He indicated that Caron posed a risk to the most affluent areas of the city and that such a risk was unacceptable. [DE 10-20 at 7-8].
a cancer in this town and it is -metastasizing quicker in ways that not all of us can get our arms around, but we are clearly being taken advantage of.. V If it quacks like a duck it is a duck.... It plain stinks, we are being taken advantage of ... There has to be a way ... I don’t care if the lawyer has to come from Olympus, there is somebody out there that is smarter than this scourge that is metastasizing in this town. It’s not just destabilizing, it denigrates the neighborhood____In the meantime, we keep them out and maybe they go plague some other place.
[DE 10-20 at 10-16]. The audience applauded after this comment. On a sepa
The City had been considering what to do with sober living facilities for some time. In August 2002, it attempted to pass an ordinance restricting “substance abuse treatment centers” from locating in residential neighborhoods. Such centers were defined broadly. They included locations only used for room and board even if treatment occurred at another location. On August 16, 2002, the U.S. Department of Justice warned the City that its ordinance would likely violate the FHA. [DE 10-1]. A neighboring city, Boca Raton, had a similar ordinance, which a federal district court judge held violated the FHA. See Jeffrey O. v. City of Boca Raton,
Simultaneously with the surge in community opposition in 2012, the City reviewed its zoning ordinances. One ordinance brought into review was the “transient use” ordinance, which restricted the number of times a home could be leased during the year. The initial version of the ordinance was enacted in 2009. This version allowed dwelling units or tenant slots to be leased six times a year. For example, a five bedroom house could be leased at least 30 times in a year if each bedroom was a tenant slot. During oral argument on the underlying motion, counsel for the City acknowledged that the original transient use statute was passed in response to an Eleventh Circuit opinion that held that a facially neutral transient use statute would not violate the FHA or the ADA, even if it hampered sober living facilities. See Schwarz v. City of Treasure Island,
On February 21, 2012, after public hearings in which citizens expressed outrage over Caron’s plans, the City toughened its transient use ordinance, decreasing the number of times an owner could rent a dwelling during a year. The revised ordinance limited turnover to three times a year in single-family zoning districts and clarified that the turnover rate applied to the entire dwelling or any part thereof. This change is significant. Taking the example of a five bedroom house, under the new ordinance it could only be rented 3 times a year, down from 30 times under the old ordinance. That same day, the City also changed its reasonable accommodation ordinance, deleting the reference to 42 U.S.C. § 290dd that would allow applicants to omit the address of the proposed location if disclosure would endanger patient confidentiality. [DE 10-14]. The third relevant zoning ordinance limited the number of unrelated people who could live together. It limits a household to those individuals related either by blood, marriage, or adoption, or a “group of persons not more than three (3) in number of unrelated individuals.” This ordinance was unchanged.
During this period of community opposition and ordinance review, the City processed Caron’s reasonable accommodation request for the Second Ocean Drive House. The process was different than the first application. On both occasions, the City sent a letter requesting additional
On February 2, 2012, Caron answered many of the City’s requests, but objected to others. [DE 10-12], For example, Caron refused to provide the address for the Second Ocean Drive House, citing 42 U.S.C. § 290dd, which prohibits disclosure of confidential patient information if it is likely, directly or indirectly, to identify a patient. As noted previously, the City had an exemption for applicants if providing the address would disclose patient-identifying information. See [DE 10-4], Regarding medical necessity, Caron attached the medical report of Sid Goodman. Mr. Goodman, Caron’s executive director and a licensed mental health counselor, opined that the requested accommodation was proper: “Without such an accommodation, our clients’ continued progress in recovery will be jeopardized.” [DE 10-12 at 10]. He did not say that it was therapeutically necessary to house seven individuals in the same building, nor did he provide any medical research in support of his assertions. As for financial conditions, Caron did not attach information regarding financial necessity. With the remaining questions, Caron answered, but under an objection that the information was not required under the reasonable accommodation ordinance and had not historically been required.
The City’s letter in response stated, “Based on the information you provided, it is still unclear as to whether or not seven (7) residents are necessary in order to make the subject property therapeutically successful with regard to ameliorating the effects of the specific disability being claimed on behalf of the intended residents.” [DE 10-16]. It added that there was no information to show that housing seven individuals was financially necessary. The letter concluded, “Based on the lack of information provided to date, we are unable to approve this Reasonable Accommodation Request at this time to allow an additional four (4) unrelated persons to occupy the property; however, if you can provide additional information, then we will reconsider your request.” Id.
MOTION FOR PRELIMINARY INJUNCTION
Before considering the merits of the motion for a preliminary injunction, the Court will address Caron’s standing. First, Caron argues that its clients are covered by the FHA and ADA. Individuals recovering from alcohol or other substance abuse can be considered disabled under the ADA and FHA. See 42 U.S.C. § 12210(b); 28 C.F.R. § 35.104(l)(ii) (listing “drug addiction” and “alcoholism” as physiological impairments); Jeffrey O., 511
A. LIKELIHOOD OF SUCCESS ON THE MERITS
Due to the similarity of the ADA and the FHA’s protections of individuals with disabilities in housing matters, courts often analyze the two statutes as one. See Tsombanidis v. W. Haven Fire Dep’t,
The ADA and FHA protect an individual with disabilities in two ways. First, they require entities to make reasonable accommodations for the sake of those with disabilities. 42 U.S.C. §§ 3604(f)(3)(B), 12131(2). Second, they make it unlawful for an entity to discriminate against individuals with a protected disability. 42 U.S.C. §§ 3604(f)(3)(B), 12132.
1. REASONABLE ACCOMMODATIONS
It is unlawful to refuse 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). The FHA does not provide, however, a “blanket waiver of all facially neutral zoning policies and rules, regardless of the facts ... which would give the disabled carte blanche to determine where and how they would live regardless of zoning ordinances to the contrary.” Bryant Woods Inn, Inc. v. Howard County,
The first step a plaintiff must take to succeed on a reasonable accommodation claim is to show that its claim is ripe. To show ripeness, a plaintiff must show that under the circumstances it has
In this case, the City argues that Caron failed to submit all required documents, so it has not yet obtained a final decision on its application. The City informed Caron that “it is still unclear as to whether or not seven (7) residents are necessary in order to make the subject property therapeutically successful with regard to ameliorating the effects of the specific disability being claimed on behalf of the intended residents” and that the City was “unable to approve this Reasonable Accommodation Request at this time ... however, if [Caron] can provide additional information, then [the City] will reconsider [Caron’s] request.” [DE 10-16] (emphasis added). The City claims that this letter was not a denial, and thus Plaintiffs complaint is unripe.
Caron responds that the letter was a denial. Caron juxtaposes the words “unable to approve” and “reconsider” in the City’s letter to emphasize that the City conclusively made a determination. Because Caron believes that there was a denial, it asserts that its claim is ripe.
The Court finds that Caron’s reasonable accommodation claim is not yet ripe. The City specifically asked for evidence that housing seven unrelated individuals was necessary to achieve therapeutic purposes. This query was especially relevant given Caron’s prior statements that only four or five residents were therapeutically necessary. [DE 10-5 at 5; DE 11 at 2]. Though Caron did provide the affidavit of its executive director, the City was could properly discount its import. This affidavit did not respond to the City’s query asking for all medical evidence showing that housing seven individuals was necessary. The director essentially restated Caron’s position that it would be good if seven people lived together, but did not provide any evidence that seven was the magic number.
Caron’s counterargument is that it was legally excused from providing the additional information the City requested. For example, it claims that 42 U.S.C. § 290dd prohibited Caron from disclosing the address of the Second Ocean Drive House because the address could eventually lead to information identifying future patients. Caron further argues that the City’s insistence on the address information, even though it violated the City’s own ordinance, is evidence of bad faith and discriminatory intent. That may be true; however, it does not excuse Caron from complying with other reasonable requests for information, such as evidence of medical necessity. As the City put it, though the City may have erred in granting the accommodation request for the First Ocean Drive House, it need not compound that error by granting another unsupported accommodation. The Court is not persuaded that the request for additional information proved that providing information would be futile simply because the City asked for certain information that
Even supposing that ripeness were not a bar, because Caron did not submit many requested documents, it also has not shown that its requested accommodation was “necessary.” Caron argues that a plaintiff can demonstrate necessity if it can show that living in the desired dwelling serves the therapeutic purpose of a substance abuse program. Living in a group setting may be necessary for therapy. E.g. Schwarz,
To be “necessary,” there must be a direct linkage between the proposed accommodation and the equal opportunity to be provided. Bryant Woods,
Caron has not demonstrated a substantial likelihood of success on the merits of its reasonable accommodation claim. Car-on chose not to provide the information needed to support the number of clients it claimed it needed in the facility. Thus, even if the claim were ripe, Caron would not be entitled to a preliminary injunction.
2. DISPARATE TREATMENT
Caron argues that its disparate treatment is not subject to the same sort of ripeness challenge. Disparate treatment claims do not require the same municipal application process. Therefore, though Caron’s reasonable accommodation claim is unripe, the disparate treatment claim can still proceed. See United States v. Vill. of Palatine,
The FHA and ADA prohibit disparate treatment of those with disabili
Caron asserts that the City’s transient ordinance is facially discriminatory because “transient” is merely a proxy word for “disabled.” Neutral proxy terms can be facially discriminatory. See McWright v. Alexander,
The Court disagrees. When considering a facial challenge, intent is irrelevant, as both Caron and the City acknowledge. See Int’l Union v. Johnson Controls, Inc.,
The City’s transient ordinance is also unlike the “community based residential facility” ordinance in Community Housing Trust. In that case, the District of Columbia required community based residential facilities to obtain a certificate of occupancy. Cmty. Hous. Trust,
Discriminatory intent can also be shown circumstantially. In Village of Arlington Heights v. Metropolitan Housing Development Corp.,
The first inquiry is whether the historical background of the decision reveals a series of official actions taken for invidious purposes. Id. at 267,
In addition, the City’s original transient use statute was admittedly passed after the Eleventh Circuit upheld such an ordinance as nondiscriminatory. In Schwarz v. City of Treasure Island,
The next Arlington Heights factor is the “specific sequence of events leading up to the challenged decision.”
The third Arlington Heights consideration is whether the municipality departed from its ordinary procedural sequence in reaching its decision.
Another consideration is whether the City departed from its substantive approach. Id. For example, “if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached,” then this can lead to an inference of discrimination. Id. Caron has not provided the Court with sufficient information on this matter, so Caron has failed to show that this factor suggests discrimination.
The final Arlington Heights factor concerns legislative or administrative history: “The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 268,
The City points out that the planning board was merely advisory and lacked decisionmaking power to change the ordinances. It cites Hallmark Developers, Inc. v. Fulton County,
That is not to say that the record lacks evidence that the final decisionmakers also
Dr. Alperin could not have missed these discriminatory comments before adopting all comments wholesale. His adoption is even more striking, because the commissioner who spoke immediately before him said, “I think Commissioner Frankel stated my views succinctly.” [DE 10-15 at 18]. Frankel’s views were much more neutral in tone and discussed a desire to comply with the FHA and ADA. See [DE 17-6 at 9]. By choosing to adopt the public’s statements rather than Frankel’s, the inference is that he was more closely aligned with the public than with Frankel. As a result, the evidence suggests that he shared in the discriminatory motive. Based on evidence that the planning board, who initially prepared the ordinances, and at least one member of the decisionmaking body had discriminatory motivation, the Court finds that transient use ordinance’s administrative history weighs in favor of finding discriminatory intent.
In reaching this conclusion, the Court does not believe that the mayor’s comments contribute to the inference of discrimination. The mayor’s statements expressed a desire to limit the expansion of rehabilitation facilities. The City points out that it is not unlawful to express frustration with proposed plans. See Schwarz v. City of Treasure Island,
Evaluating these Arlington Heights factors, the Court finds that Caron has shown a substantial likelihood of success that the City was motivated by a desire to discriminate against individuals and entities protected by the FHA and ADA when it modified the transient use ordinance on February 21, 2012.
Next, the burden shifts to the City to provide legitimate, nondiscriminatory reasons for the apparent discrimination. See Massaro v. Mainlands Section 1 & 2 Civic Ass’n, Inc.,
The burden then reverts to Caron to show that these proffered reasons are pretextual. See McDonnell Douglas Corp.,
The parties’ arguments on irreparable harm mainly focused on the impact of the ordinance governing the number of unrelated individuals who can reside together, making arguments about the relevance of excess capacity in current buildings. Because the challenged ordinance is the transient use ordinance, these arguments are beside the point. Caron’s clients would stay on average 60 to 90 days at the Second Ocean Drive House. Even if Caron could house large numbers of unrelated individuals, the turnover rule of the transient use ordinance would prevent Caron from effectively running its program. A five bedroom house with five original tenants turning over in two months would leave the house empty after four months. The house would sit empty the majority of the year. The house would essentially be inoperable.
Frustration of a rehabilitation provider’s mission can cause irreparable harm. See Stewart B. McKinney Found., Inc. v. Town Plan & Zoning Comm’n,
C. BALANCE OF THE HARMS
Caron claims that the City will not be harmed if it grants the accommodation. It does not believe that the rehabilitation site will change the single-family character of the neighborhood and that the clients it houses will have no greater impact on municipal services than any other large family. In addition, Caron argues that individuals with disabilities have a strong interest in living in the residence of their choice in the community, outweighing the inconvenience the City would face. Caron would suffer great harm if it were stymied in its mission to serve recovering addicts.
The City responds that the City indeed would be greatly harmed if Caron obtained its desired injunction. The City believes that it would be unable to enforce the
The Court acknowledges the competing interests, but finds that Caron prevails on the balance of the harms. Although an injunction as broad as the City imagines could tip the balance in the City’s favor, the Court’s carefully tailored injunction does not. First, the City need not fear having to grant the reasonable accommodation request at this point. Because Car-on has failed to demonstrate a substantial likelihood of success on its reasonable accommodation claim, the Court will not order the City to grant Caron an accommodation at this time.
As for an inability to enforce the transient use ordinance, the Court will only enjoin the City from enforcing the amended transient use ordinance against Caron. The only evidence Caron provided to show that the original transient use ordinance was passed with discriminatory motives was that the City adopted it in the wake of the Schwarz case and that the Department of Justice had cautioned the City against passing an ordinance that would have regulated sober living facilities. As noted earlier, that evidence is inconclusive standing by itself, because the City may have just been waiting for a “green light” for passing a nondiscriminatory, broadly applicable transient use ordinance. The Court does not find that Caron has shown a substantial likelihood of success on an argument that this original ordinance was passed for discriminatory reasons. As a result, though the City may not enforce the amended transient use ordinance against Caron, the City may still enforce its original transient use ordinance against Caron. At this point, the Court takes no position on the City’s ability to enforce the amended transient use ordinance against parties other than Caron and thus will not enjoin its enforceability against other entities.
Finally, the Court sees no harm in requiring the City to process any of Caron’s future applications without discrimination. With or without an injunction, the City is under an obligation to obey the law, and the injunction will add little to that duty.
D. PUBLIC INTEREST
Finally, Caron must show that an injunction is not against the public interest. Through the FHA and ADA, Congress has declared that it is in the public interest to allow individuals with disabilities to live on an equal footing with the non-disabled. Therefore, it is not against the public interest to enjoin discrimination against individuals with disabilities or those who provide housing and treatment services on their behalf.
CONCLUSION
Caron has not satisfied its burden of demonstrating that its reasonable accommodation claim is ripe or that it has a substantial likelihood of success on the merits of that claim. It has, however, shown a substantial likelihood of success in demonstrating that the City unlawfully discriminated when it passed an amended transient use ordinance. That amendment irreparably harms Caron. Though there are competing interests involved, the balance of the equities is in Caron’s favor. Granting a preliminary injunction against
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff Caron Foundation of Florida, Inc.’s Motion for Preliminary Injunction [DE 11] is GRANTED IN PART;
2. The Court preliminarily ENJOINS Defendant The City of Delray Beach from enforcing its amended transient use ordinance against Plaintiff Caron Foundation of Florida, Inc.;
3. The Court also preliminarily ENJOINS Defendant The City of Del-ray Beach from violating the Fair Housing Act, 42 U.S.C. § 3601 et seq., or the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., as it processes Caron’s reasonable accommodation request, should Plaintiff choose to continue pursuing such an accommodation by providing additional information and/or reapplying, if necessary.
DONE AND ORDERED.
Notes
. The Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit issued prior to October 1, 1981. Bonner v. City of Prichard,
. All page numbers refer to the page number on the CM/ECF system.
. The Court takes no position on the applicability of 42 U.S.C. § 290dd and whether it would indeed foreclose Caron from providing the address of its rehabilitation house.
. In fact, the City has argued that because the City has granted many rehabilitation accommodations both before and after Caron made its current request, [DE 17-4 ¶¶ 6-8, 15], Car-on could not make a showing of futility if it tried.
.Caron also briefly asserts a disparate impact claim, but offers no statistical evidence or any real argument in support of how disparate impact was shown. Caron has not shown a substantial likelihood of success on a disparate impact claim. See Schwarz,
. The Court finds that it cannot deem the City’s attorneys’ webpage as the City’s own words by way of agency. "An attorney, as any other agent, may make statements which the law attributes to the principal. Lawyers can and frequently do make statements which, had the client made them, would be admissible as admissions. Whether they are admissible against the principal depends, as with any other agency, on the scope of the agent’s (attorney's) authority.” Laird v. Air Carrier Engine Serv., Inc.,
However, the comment can still be relevant. See Fed.fLEvid. 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”). Ordinarily, what the City told its attorneys regarding the scope and purpose of representation would be protected by the attorney-client privilege. See United States v. Noriega,
. The evidence that the City changed the amount of information requested for the Sec
. The Court notes that the Sixth Circuit has held that when Arlington Heights applies, there is no need to step through the burden-shifting framework of McDonnell Douglas, because Arlington Heights "can prove the ultimate question of discrimination vel non." Paskvan v. City of Cleveland Civil Serv. Comm’n,
. The City also argues that even if there is evidence that the City had discriminatory intent, Caron must show that it has "actually been treated differently than similarly situated nonhandicapped people.” Schwarz,
However, the Eleventh Circuit also noted, "The analysis might have been different if [the treatment provider] claimed that the City enacted the occupancy-turnover rule in order to discriminate against people with disabilities.” Id. at 1217. Here, there is evidence of intentional discrimination. The McDonnell Douglas framework is not a hard-and-fast framework; it can be modified as necessary. Fitzpatrick v. City of Atlanta,