United States District Court, S.D. Florida
REPORT AND RECOMMENDATION
S. SELTZER UNITED STATES MAGISTRATE JUDGE
CAUSE is before the Court on the Motion to Dismiss Complaint
with Prejudice (“Motion to Dismiss” or
“Motion”) (DE 18) filed by Defendant Hillcrest
East No. 22, Inc. (“Defendant”) and was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636 and the Magistrate Rules of the Local Rules of the
United States District Court for the Southern District of
Florida (DE 25). The undersigned has carefully reviewed the
file and is otherwise fully advised in the matter. For the
reasons set forth below, the undersigned RECOMMENDS that the
Motion (DE 18) be GRANTED in part and DENIED in part.
filed a Complaint (DE 1) in this Court setting forth the two
counts for violation of the Fair Housing Act
(“FHA”) and the Florida Fair Housing Act: Count I
- Failure to Reasonably Accommodate (42 U.S.C. §
3604(f)(3)(B); Fla. Stat. §760.23(9)(b)); and Count II -
Discrimination in the Terms, Conditions, or Privileges of the
Provision of Services or Facilities in Connection with a
Dwelling (42 U.S.C. § 3604(f)(2); Fla. Stat. §
760.23(8)). Plaintiff seeks by way of relief compensatory and
punitive damages and attorney's fees and costs.
Defendant filed the instant Motion (DE 18), setting forth
three grounds for dismissal: “(1) The Complaint fails
to state a claim pursuant to 42 U.S.C. § 3604(f)(3)(B)
as the Association did not deny the requested accommodation;
(2) The Complaint fails to state a distinct and separate
claim pursuant to 42 U.S.C. § 3604(f)(2); (3) The
Complaint fails to state a claim for Punitive Damages.”
Motion at 2 (DE 18). Plaintiff then responded (DE 21) to the
Motion, and Defendant replied (DE 24) thereto.
Motion to Dismiss is now ripe for decision.
Complaint alleges that Plaintiff and her husband own a unit
in the Defendant condominium. Complaint ¶ 3 (DE 1).
Plaintiff suffers from patellofemoral syndrome of both knees,
a condition that is characterized by chronic knee pain and
that has placed her under physicians' care for several
years. ¶ 5. Her physicians have advised that she would
benefit greatly from regular exercise in a non-weight bearing
manner, as in a swimming pool. ¶ 6. Although the
Defendant condominium has a swimming pool as part of its
common elements, it has refused Plaintiff use of the pool
because her husband has an outstanding debt to Defendant, an
attorney's fee judgment from an unrelated dispute.
to the Complaint, Plaintiff and her husband notified
Defendant that due to her medical condition Plaintiff needed
to utilize the pool to exercise and to obtain relief from her
pain. In or around November 2016, Plaintiff, through her
husband, provided Defendant a letter from her treating
physician, Dr. Alejandro Andreu, indicating that Plaintiff
was a patient under his care and would greatly benefit from
regular exercise in a non-weight bearing manner, as in a
swimming pool. Defendant determined that his letter was
insufficient. ¶ 10
January 2017, Plaintiff, through her husband, again notified
Defendant that as a result of her medical condition she
needed to utilize the swimming pool to relieve her pain and
to obtain a benefit. Upon request of Defendant, in or around
January 2017, Plaintiff provided Defendant a second letter
from Dr. Andreu, explaining that Plaintiff was diagnosed with
patellofemoral syndrom of both knees and stating: “She
was prescribed 20 mg paracetamol and would greatly benefit
from regular exercise in a non-weight bearing manner as in a
swimming pool due to her medical condition.” Defendant
did not respond to Plaintiff's request. ¶ 11.
about July 11, 2017, Plaintiff received a written
prescription from her new physician, Dr. Michael Margolis. In
addition to pain medication, the written prescription
provided for “regular exercise in a non-weight bearing
manner, as in a swimming pool, due to her medical
conditions.” ¶ 14. In July 2017, Plaintiff,
through her husband, delivered to Defendant Dr. Margolis'
written report and prescription for swimming pool therapy,
which explained that Plaintiff was diagnosed with arthritis
of the lower back, shoulders, and both knees. Defendant,
however, did not respond to Plaintiff's requests to use
the pool. ¶¶ 15-16.
about August 7, 2017, Plaintiff, through her husband,
delivered a written request for approval to use the swimming
pool as therapy for her severe arthritic condition. He
delivered a copy of the three previous medical letters, which
described the necessity that Plaintiff have access to and use
of the pool to accommodate her medical condition.
Plaintiff's husband requested a response not later than
August 12, 2017. ¶ 17.
about August 22, 2017, Defendant, through its attorney,
responded by letter to Plaintiff, requesting more
information. ¶¶ 18, 19. That letter, attached as
Exhibit “D” to the Complaint, states in pertinent
This law firm represents Hillcrest East No. 22, Inc.
(“Association”). The Association has informed me
that you have made an accommodation request on behalf of your
wife, Sofiya Cohen a/k/a Sofiya Nazarova. You have informed
the Association that you are requesting an accommodation for
your wife to use the swimming pool. The purpose of this
letter is to request additional information so that the
Association may conduct a meaningful review of your request.
Section 718.303(4) of the Florida Statutes provides that if a
unit owner is more than 90 days delinquent in paying a fee,
fine, or other monetary obligation due to the association,
the association may suspend the right of the unit owner or
the unit's occupant, licensee, or invitee to use common
elements, common facilities, or any other association
property until the fee, fine, or other monetary obligation is
paid in full. The Association will make a reasonable
accommodation in situations where the resident's
disability is sufficiently documented and the relationship
between the disability and the need for the accommodation is
provided. While the Association is sympathetic to your
wife's condition, the Association owes a duty to all of
its members to ensure that accommodations are warranted and
You have provided two letters from Alejandro Andreu, MD dated
November 8, 2016 and January 11, 2017 as well as one letter
from Michael Margolis, DO dated July 11, 2017. However, these
letters are insufficient to overcome the Association's
suspension of the use of the pool and obtain an exception for
a reasonable accommodation. Specifically, the doctors'
letters simply state that your wife would benefit from
regular exercise in a non-weight bearing manner as in a
swimming pool while failing to state how the accommodation is
necessary for your wife's use and enjoyment of the
Within ten (10) days from the date of this letter, please
provide a letter, preferably from a treating physician,
containing the following information: (1) listing any major
life functions that are affected by such impairments or
handicaps (2) how the use of the pool is related to your
wife's impairments and (3) how the use of the pool is
necessary to your wife's use and enjoyment of the
Please be advised that the Association is not denying your
request at this time, rather is engaging in an interactive
process to facilitate an opportunity for the Association to
conduct a meaningful review. In the event that you fail to
comply with the mandates of this letter, the Association will
be forced to deny your request.
(DE 1-1, Ex. D).
about September 19, 2017, Plaintiff's attorney responded
to the letter from Defendant's attorney, stating that
Plaintiff had already provided the requested information but
that upon her return from a ...