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Nazarova v. Hillcrest East No. 22, Inc.

United States District Court, S.D. Florida

July 7, 2018

SOFIYA NAZAROVA, a/k/a SOFIYA COHEN, Plaintiff,
v.
HILLCREST EAST NO. 22, INC., a Florida not for Profit corporation, Defendant.

          REPORT AND RECOMMENDATION

          BARRY S. SELTZER UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         I. PROCEDURAL HISTORY

         Plaintiff 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.

         Thereafter, 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.

         The Motion to Dismiss is now ripe for decision.

         II. BACKGROUND

         The 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. ¶¶ 7-9.

         According 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

         In 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.

         On or 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.

         On or 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.

         On or 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 part:

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 properly documented.
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 dwelling.
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 dwelling.
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).

         On or 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 ...


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