United States District Court, M.D. Florida, Fort Myers Division
TRISHA FLOYD AND CHRISTOPHER FLOYD, on their own behalf and on behalf of their minor child, S.F., Plaintiffs,
CITY OF SANIBEL, a Florida Municipal Corporation, and COMMUNITY HOUSING AND RESOURCES, INC., and KELLY COLLINI, in her capacity as Executive Director of Community Housing and Resources, Inc., Defendants.
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant City of
Sanibel's Motion to Dismiss Counts I through IX of
Plaintiffs' First Amended Complaint dated March 28, 2016.
(Doc. #45). Plaintiffs Trisha Floyd, Christopher
Floyd, and their minor child, S.F., filed a Memorandum in
Opposition to Defendant City of Sanibel's Motion to
Dismiss on April 11, 2016. (Doc. #46). This matter
is ripe for review.
stated otherwise, the following facts are drawn from the
First Amended Complaint and construed in a light most
favorable to Plaintiff as the non-moving party.
case is about a discriminatory housing practice arising from
a lease agreement between Community Housing & Resources,
Inc. (“CHR”), as landlord, and Plaintiffs Trisha
Floyd (“Trisha”), Christopher Floyd
(“Christopher”), and S.F. (“S.F.”) as
tenants (collectively, the “Floyds”), in a
housing unit owned by the City of Sanibel (the
“City”) through the Below Market Rate Housing
program (“BMRH”). (Doc. #37 at ¶¶
and S.F. “have [a] heightened sensitivity to
mycotoxin-producing mold, ” which causes “a
substantial mental and physical impairment that substantially
limits one or more of [their] major life activities.”
(Doc. #37 at ¶ 15). In 2014, Trisha and her
son, S.F., relocated to Lee County, Florida, from Maryland
due to the toxic exposure of mold in their prior Maryland
residence. (Id. at ¶ 14 and 17). In 2015,
Christopher, Trisha's husband, joined his wife and son in
Lee County. (Id. at ¶ 14). In March of 2015,
the Floyds applied to CHR for housing under the BMRH program.
(Id. at ¶ 18). Subsequently, the Floyds
received acceptance into the BMRH program and the assignment
of “unit 10 (the “Unit”) in the Woodhaven
(“Woodhaven”) development in Sanibel,
Florida.” (Id.). Woodhaven consists of 14
two-bedroom units and is owned by the City. (Id. at
¶ 19). The Floyds moved into the Unit after the
execution of the lease on March 14, 2015. (Id. at
operates and maintains Woodhaven. (Id. at ¶
20). The City is also heavily involved in the BMRH.
(Id. at ¶ 21). CHR receives funding through a
Community Development Block Grant Program. (Id.) The
City's contribution to CHR exceeded $290, 000.00 in 2014.
(Id.) The City is involved in decision-making that
includes eligibility determinations and everyday operations.
(Id. at ¶ 22). The CHR board of directors
consists of a City staff member who acts as a liaison.
moving into the Unit, Trisha and S.F. suffered symptoms of
exposure to toxic mold. (Doc. #37 at ¶ 25).
Unsure of the cause of their symptoms, Trisha and S.F.
obtained medical care. (Id.). While the symptoms
continued, Trisha observed a moldlike matter within the Unit.
(Id. at ¶ 26). Trisha's physician
instructed her to collect mold samples to establish the
presence of mycotoxin in the Unit. (Id.). On June
18, 2015, Christopher obtained samples of the matter, and
delivered such samples to MYCOMETRICS, LLC, for testing, at
Christopher and Trisha's expense. (Id. at ¶
27). On July 7, 2015, MYCOMETRICS reported high
concentrations of toxic molds within the Unit. (Id.
at ¶ 28). That day, Trisha conveyed MCOMETRICS'
findings to Patti Bohm (“Bohm”), a CHR
representative. (Id.). In response, Bohm promised to
move the Floyds into another unit. (Id.). However,
CHR never addressed the toxic mold, nor provided alternative
accommodations to the Floyds. (Id. at ¶ 29).
Because Trisha and S.F.'s debilitating symptoms
continued, they lived with friends. (Id.). In fact,
Trisha could not maintain employment and S.F. could not
attend preschool. (Id.). Consequently, the
Floyds' income significantly declined. (Id.).
October of 2015, Trisha met with Defendant Kelly Collini, the
Executive Director of CHR, and requested remedial action be
taken. (Id. at ¶ 30). Collini denied
responsibility, threatening the Floyds with eviction.
(Id.). Although discouraged from doing so, Trisha
requested a meeting with the CHR Board. (Id.).
Trisha then requested a meeting with CHR's Landlord
Tenant Committee (“Committee”), which the
Committee denied on November 3, 2015. (Id. at ¶
31). On November 9, 2015, Trisha met with a City manager,
Judy Zimomra (“Zimomra”), and discussed the
presence of mold in the Unit and requested the City's
assistance. (Id. at ¶ 32). On November 10,
2015, Trisha received e-mail notification that CHR intended
to have an inspection of the Unit by a “mold
specialist.” (Id. at ¶ 33). Gary Ranard
(“Ranard”) with Air Technologies visited the Unit
on November 12, 2015. (Id. at ¶ 34). However,
Ranard does not hold a valid license for assessing or
remediating mold. (Id.). Nevertheless, in
Ranard's report, he noted the presence of “dead or
dried green mold.” (Id.). On November 13,
2015, CHR notified Trisha of its remedial action, which
included installing a new A/C unit and running oxidizers and
heppa vac surfaces. (Id. at ¶ 35). On November
16, 2015, the Floyds notified CHR that if the mold was not
removed, they intended to withhold rent, per Fla. Stat.
§ 83.60, and would seek alternative living
arrangements within 7 days. (Id. at ¶ 36).
Thereafter, Trisha feared that CHR's remediation plan
could potentially make the situation worse, and requested CHR
to postpone the remediation for 14 days. (Id. at
November 25, 2015, the Floyds, together with counsel,
proposed a remedial plan in writing to CHR. (Id. at
¶ 38.). CHR refused to perform such measures and provide
alternative accommodations. (Id. at ¶ 39). In
response, Trisha and Christopher hired a state-licensed mold
assessor, John Cosgrove (“Cosgrove”), to collect
samples from the Unit. (Id. at ¶¶ 40-41).
Cosgrove observed, and laboratory testing confirmed, harmful
molds that produce mycotoxins. (Id. at ¶ 42).
Cosgrove noted a HVAC system deficiency causing elevated mold
levels. (Id.). Cosgrove provided several
recommendations to remediate the mold; nonetheless, CHR made
verbal and written threats of the Floyds' eviction in
response. (Id. at ¶¶ 43-44).
December 21, 2015, the Floyds commenced this suit in the
Middle District of Florida, Fort Myers Division. (Doc. #1).
The City filed a motion to dismiss on February 22, 2016,
which the Court denied as moot after the Floyds timely filed
their First Amended Complaint. (Doc. #35 and #37).
The Floyds' First Amended Complaint alleges violations of
the Fair Housing Act; Americans with Disabilities Act;
Rehabilitation Act of 1973; Florida Fair Housing Act; and the
Florida Landlord-Tenant Act. (Doc. #37).
Additionally, the Floyds brought causes of action for
retaliatory conduct; breach of lease; negligence; and
intentional infliction of emotional distress. (Id.).
The City now moves to dismiss Counts I through IX of the
Floyds' First Amended Complaint. (Doc. #45).
considering a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the reviewing court must
accept all factual allegations in the complaint as true and
view them in a light most favorable to the plaintiff.
See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). This preferential standard of review, however, does
not permit all pleadings adorned with facts to survive to the
next stage of litigation. The Supreme Court has been clear on
this point - a district court should dismiss a claim where a
party fails to plead facts that make the claim facially
plausible. See Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim is facially plausible when
the court can draw a reasonable inference, based on the facts
pled, that the opposing party is liable for the alleged
misconduct. See Iqbal, 556 U.S. at
678. This plausibility standard requires "more
than a sheer possibility that a defendant has acted
unlawfully." Id. (citing Twombly, 550 U.S. at
557 (internal quotation marks omitted)).
DELEGATION OF THE CITY'S RESPONSIBILITIES TO
City argues, without legal authority, that dismissal is
appropriate because the City delegated its responsibilities
to CHR. (Doc. #45 at 2). In response, the Floyds argue that
the City is directly liable as the Unit owner. (Doc. #46 at
property owner is ultimately responsible for his
“non-delegable duty to provide reasonably safe premises
for its invitees.” U.S. Sec. Services Corp.,
665 So.2d 268, 271 (Fla. 3d DCA 1995); see also Garcia v.
St., Dept. of Nat'l Resources, 707 So.2d 1158, 1159
(Fla. 3d DCA 1998). Although another entity operates and
maintains the property, the owner remains responsible and
liable. See Garcia, 707 So.2d at 1159. Turning to
this action, the City, as the Unit owner, cannot delegate its
duty to provide a reasonably safe premises. (Id. at
¶ 19). Consequently, the City's delegation argument
City argues that the Floyds failed to allege enough facts to
establish a violation of the Floyds' federal rights.
(Doc. #45 at 3). The Floyds assert that the pleading standard
is low, and they have sufficiently pleaded the allegations to
put the City on notice. (Doc. #46 at 3). The Court addresses
each federal claim in turn.
COUNT I: FEDERAL FAIR HOUSING ACT
is the policy of the United States to provide, within
constitutional limitations, for fair housing throughout the
United States.” 42 U.S.C. § 3601. Under 42 U.S.C.
§ 3604(f)(3)(B), discrimination consists of “a
refusal to make reasonable accommodations in rules, policies,
practices, or services, when such ...