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Floyd v. City of Sanibel

United States District Court, M.D. Florida, Fort Myers Division

January 9, 2017

TRISHA FLOYD AND CHRISTOPHER FLOYD, on their own behalf and on behalf of their minor child, S.F., Plaintiffs,
v.
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.

          ORDER [1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         Unless 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.

         This 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 ¶¶ 1-2; 14-19).

         Trisha 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 ¶ 24).

         CHR 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. (Id.).

         After 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.).

         In 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 ¶ 37).

         On 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).

         On 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).

         STANDARD OF REVIEW

         When 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)).

         DISCUSSION

         A. DELEGATION OF THE CITY'S RESPONSIBILITIES TO CHR

         The 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 2).

         A 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 fails.

         B. HOUSING CLAIMS

         The 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.

         1. COUNT I: FEDERAL FAIR HOUSING ACT

         “It 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 ...


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