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Pepin v. Pompano Place Condominium Association, Inc.

United States District Court, S.D. Florida

December 1, 2017

GUY PEPIN, et al., Plaintiffs,
v.
POMPANO PLACE CONDOMINIUM ASSOCIATION, INC., ., Defendants.

          ORDER ON SUMMARY JUDGMENT

          BETH BLOOM, UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court upon Defendants Pompano Place Condominium Association, Inc., Normand Poirier, and Linda Pigeon's (“Defendants”) Motion for Summary Judgment, ECF No. [50] (the “Motion”). The Court has carefully considered the Motion, all supporting and opposing filings, the relevant authorities, and is otherwise duly advised. For the reasons that follow, Defendants' Motion is denied.

         I. BACKGROUND

         A. Plaintiffs' Claims in the Amended Complaint

         Plaintiffs, Guy Pepin, Annie Pepin, Lars Andersson, Leilia Andersson, and Jarl Hansson (“Plaintiffs”) have sued Defendants for violations of the Fair Housing Act (“FHA”), specifically for a denial of housing under 42 U.S.C. § 3604. See ECF No. [10]. Guy Pepin (“Mr. Pepin”), as the owner of Unit 201 in Pompano Place Condominium (“Pompano Place”), and Annie Pepin (“Ms. Pepin”), as the owner of Unit 101, allege that their buyers, Lars Andersson (“Mr. Andersson”) and Leilia Andersson (“Ms. Andersson”) and Hyndi Khomutetsky, were denied housing and were discriminated against in violation of the FHA because they are not French Canadian. Id. Count I alleges a claim by Mr. Pepin against Defendants for their denial of a dwelling to a non-French Canadian buyer, which deprived him of the ability to sell Unit 201. Id. at ¶¶ 30-34. On behalf of Ms. Pepin, Count II alleges the same claim as to her inability to sell Unit 101 to a non-French Canadian buyer. Id. at ¶¶ 35-39. Counts III and IV assert claims on behalf of Mr. Andersson and Ms. Andersson respectively for Defendants' alleged denial of a dwelling to them on the basis that they are not French Canadian. Id. at ¶¶ 40-49. Within Count V, Jarl Hansson (“Mr. Hansson”), in his capacity as the Andersson's real estate agent, alleges that his clients were denied housing because of their language or nationality. Id. at ¶¶ 50-54. Defendants filed a Motion for Summary Judgment on all claims asserted in the Amended Complaint. See ECF Nos. [49] and [50]. Plaintiffs' timely Response and Defendants' timely Reply followed. See ECF Nos. [52], [51], [52] and [55]. The Motion is now ripe for review.

         B. Undisputed Facts

         1. The Condominium Association

         Pompano Place is a twenty-four unit condominium property located at 221 S.E. 9th Avenue in Pompano Beach, Florida. See ECF No. [49] at ¶ 1.[1] Defendant Pompano Place Condominium Association, Inc. (the “Association”) administers and governs the property known as Pompano Place. Id. at ¶ 2. Defendant Normand Poirier (“Mr. Poirier”) served as the president of the Association and as a board member since October of 2015 while Defendant Linda Pigeon (“Ms. Pigeon”) served as the secretary-treasurer and also as a board member since May of 2015. Id. at ¶¶ 3-4. Non-party Steve Lambert was the vice president of the Association and served as a board member since May of 2015. Id. at ¶ 5. Mr. Pepin served as the Association's vice president from 1994 to 1995 and as the Association's president and board member from May 23, 2015 to October 2, 2015. Id. at ¶¶ 6-7. Each member of the Association's board of directors has equal voting power. Id. at ¶ 8.

         Article 1.1 of the Declaration of Condominium (“Declaration”) provides: “No Condominium Unit Owner may dispose of a Unit or any interest therein by sale without approval of the Association.” Id. at ¶ 9. The purpose of this prior approval requirement is “[t]o maintain a community of congenial residents who are financially responsible and thus protect the value of the Condominium Units, and to insure the financial ability of each Unit Owner to pay assessments made against [them].” Id. at ¶ 10. The Declaration further requires that any “unit owner intending to make a bona fide sale of his condominium unit or any interest in it shall give the Association notice of his intention, together with an executed copy of the proposed contract with the name and address of the intended purchaser, the price, terms and conditions, if any.” Id. at ¶ 11. Within fifteen days of receiving such a notice and the required information, the Association must either approve or disapprove the proposed transaction. Id. at ¶ 12. If the Association fails to comply with this timeline, the application “shall be deemed to have been granted.” Id. at ¶ 13.

         On May 21, 2016, the Association held an annual meeting with its members during which a new sale approval process was adopted. Id. at ¶ 14. This new process required a credit and criminal background check of prospective buyers. Id. at ¶ 15. Prior to the adoption of this new approval process, the Association relied upon a word-of-mouth system based upon the board members' personal knowledge of the potential buyer. Id. at ¶ 16. The long-standing word-of-mouth policy resulted in a community of all French-speaking unit owners, except for one owner who took over the unit after his parents, Donat and Francoise Dumont, passed away. ECF No. [52] at ¶ 17.[2] This system, however, was not working well because the Canadian dollar began declining in value in 2015 with an almost 40 percent difference in the exchange rate and because the Association was concerned it would be “under water” if one or two members did not pay their dues. See ECF No. [52] at ¶ 16; ECF No. [49] at ¶ 17.

         2. The Alleged Discrimination

         Ms. Pepin is the owner of Pompano Place Unit 101 (“Unit 101”) while Mr. Pepin is the owner of Pompano Place Unit 201 (“201”). See ECF No. [49] at ¶¶ 23-24. On August 14, 2016, Mr. Pepin entered into a contract for the sale and purchase of Unit 201 with buyer Hyndi Khomutetsky. See ECF No. [49] at ¶ 25. Ms. Khomutetsky lives in the United States, is not French Canadian and does not speak French Canadian fluently. See ECF No. [52] at ¶ 25. On the following day, Ms. Pepin entered into a contract for the sale and purchase of Unit 101 with Mr. and Ms. Andersson, who are Swedish, and were represented by Mr. Hansson, a real estate agent. See ECF No. [49] at ¶ 26; ECF No. [52] at ¶ 26. The proposed sale of Units 101 and 201 were submitted to the Association for its approval, including authorization for a credit and criminal background check of the interested buyers. See ECF No. [49] at ¶ 27. Prior to the proposed sale of these two units, the Association had not required that other buyers submit to these background checks as these procedures were recently adopted in May of 2016. Id. at ¶ 28. The Association employed Scott-Roberts and Associates LLC (“Scott-Roberts”) to perform the background checks on the potential buyers, but on September 12, 2016, Scott Roberts declined to provide the requested information because the Association did not maintain a “standalone office.” Id. at ¶¶ 29-30. On September 13, 2016, the Association informed Ms. Pepin that her request to approve the sale of Unit 101 was denied and informed Mr. Pepin that his request to approve the sale of Unit 201 was also denied. Id. at ¶¶ 35-36. By a vote of 2-1, the Association's board of directors declined the requested approval. Id. at ¶ 33.[3] Mr. Poirier was the only board member who voted to approve the sales. Id. at ¶ 34. After the Association was unable to obtain credit and background information on potential buyers from an independent source, it abandoned this procedure because it would result in the refusal of other future sales. Id. at ¶ 37. The Association sent Mr. Pepin a letter advising him that all future sales would be approved. See ECF No. [52] at ¶ 37.[4] In an October 17, 2016 letter, the Association informed Mr. Pepin of its willingness to approve a buyer for Units 101 and 201 following a favorable interview and explained that the prior refusal was the result of its inability to obtain a timely credit and background check. See ECF No. [49] at ¶ 38. This letter was sent one week after Plaintiffs' counsel notified Pompano Place's counsel that Plaintiffs were pursuing a claim for FHA discrimination. See ECF No. [52] at ¶ 38.

         Thereafter, on October 27, 2016, Mr. Pepin entered into a sale and purchase agreement with Mr. and Ms. Andersson for Unit 201. See ECF No. [49] at ¶ 39. On November 4, 2016, Mr. Poirier sent an email to Mr. Andersson as follows:

If Pompano Place accept your buy and approved you in our Association I ask you to remove all legal case against Pompano Place. It's a minimum. If you don't remove the legal case, all other owners of Pompano Place will don't like you, and after ...

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