Case 9:03-cv-80178-DMM Document 81 Entered on FLSD Docket 03/29/2004 Page 1 of 49

United States District Court Southern District of Florida
Case No. 03-80 178-CIV-Paine/Johnson

JEFFREY 0., BOBBY HOOVER, TODD

)

CONROY, DOUG BYERS, RICHARD COHEN, )

MATTHEW WOLF, REGENCY PROPERTIES )

OF BOCA RATON, INC., a Florida Corporation, )

and AWAKENINGS OF FLORIDA, INC.,

)

a Florida Corporation,

)

)

Plaintiffs,

)

)

VS.

)

)

CITY OF BOCA RATON, a Florida

)

Municipal Corporation,

)

)

Defendant.

)

CLERK, USDC I soFL tW?P

THIRD AMENDED COMPLAINT

Plaintiffs Bobby Hoover, Todd Conroy, Doug Byers, Richard Cohen and Matthew Wolf

(referred to collectively as the "Residents"), Regency Properties of Boca Raton, Inc. ("Boca

House"), a Florida corporation, and Awakenings of Florida, Inc. ("Awakenings"), a Florida

corporation, sue Defendant City of Boca Raton (the "City"), a Florida municipal corporation, and

allege:

PARTIES AND JURISDICTION

1.

This action arises under the Fair Housing Act of 1968, as amended, 42 U.S.C.

§3601, et seq. (the "FHA"), Title II ofthe Americans with Disabilities Act, 42 U.S.C. 12131, et

seq. (the "ADA"), the Declaratory Judgment Act, 28 U.S.C. § 220 I, and the equal protection

guarantee of the 14th Amendment to the United States Constitution for which 42 U.S.C. § 1983

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provides a remedy.

2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 (a)(3) and

(a)(4), and pursuant to 42 U.S.C. § 3613.

3. Venue is appropriate in the Southern District ofFlorida because the cause of

action accrued in Palm Beach County, Florida and because the Defendant is a municipality

located in Palm Beach County, Florida.

4. Plaintiff, Bobby Hoover, is a recovering alcoholic or drug addict with disabilities,

who is in need of stable housing during his transition from rehabilitation to integrated

community living.

5. Plaintiff, Doug Byers, is a recovering alcoholic or drug addict with disabilities,

who is in need of stable housing during his transition from rehabilitation to integrated

community living. He has relapsed on at least one prior occasion.

6.

Plaintiff, Todd Conroy, is a recovering alcoholic with disabilities, who is in need

of stable housing during his transition from rehabilitation to integrated community living.

7. Plaintiff, Richard Cohen, is a recovering alcoholic or drug addict with disabilities,

who is in need of stable housing during his transition from rehabilitation to integrated

community living. He has relapsed on at least one prior occasion.

8. Plaintiff, Matthew Wolf, is a recovering alcoholic or drug addict with disabilities,

who is in need of stable housing during his transition from rehabilitation to integrated

community living.

9. Plaintiff Residents currently reside in drug and alcohol-free rental housing for

persons recovering from alcohol or drug addiction operated by Plaintiffs Boca House and

Awakenings or related properties. Typically, after Boca House or Awakenings residents

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complete detoxification in a hospital or similar facility, they continue their recovery in larger, more structured sober housing at Boca House, which does not provide treatment but does provide a structured, supportive and drug and alcohol free environment. Eventually these persons transition to smaller, less structured and more independent homes and apartments with two or more other residents (to whom they are not related) when they reach more advanced phases of recovery.
10. Plaintiff Residents are in active recovery from addiction through programs such as A.A. (Alcoholics Anonymous) and N.A. (Narcotics Anonymous). Anonymity is a central tenet ofthese recovery programs: members maintain anonymity at the "public" level (press, radio, television, and films), and when the media portrays an A.A. or N.A. member, that person is identified by his or her first name only, without an accompanying picture.
11. Plaintiff Residents are qualified persons with disabilities that affect one or more major life activities of central importance to most people's daily lives, including abstaining from alcohol or drug abuse and living independently without a structured supportive setting and a sober housing environment. In addition, each of the Plaintiff Residents has been diagnosed as suffering from alcohol or drug dependence, is participating or has participated in alcohol or drug treatment on an outpatient basis at facilities unrelated to Boca House and Awakenings, and is regarded as disabled. Plaintiff Residents are not currently illegally using controlled substances or alcohol.
12. Despite the fact that none of the Plaintiff Residents is illegally using controlled substances or alcohol, each of the Plaintiff Residents is at continual risk of relapse due to his addiction and/or alcoholism. Notwithstanding most Boca House and Awakenings residents' active participation in alcohol or drug treatment programs, and their residence in sober housing,
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some residents relapse by breaking their sobriety. In fact, since the filing ofthe original complaint in this case, several residents of Boca House and Awakenings have relapsed and left to attend drug or alcohol rehabilitation before returning to Boca House or Awakenings. Even for Resident Plaintiffs who have "graduated" from Boca House to smaller, more independent sober housing, there is a constant danger of relapse.
13. Plaintiff Residents, and all other individuals residing at Boca House and Awakenings, are "handicapped'' within the meaning of the FHA and 24 C.F.R. 100.201 (a)(2), and are "qualified persons with disabilities" within the meaning ofthe ADA, 42 U.S.C. § 121 02(2) and 28 C.F.R. 35.104.
14. Plaintiffs Boca House and Awakenings are Florida corporations whose principal places of business are in Boca Raton, Florida. Boca House and Awakenings own or operate housing units (apartments, town homes and single family homes) in residential settings that they rent to individuals who are recovering from substance addiction so they can live in a drug and alcohol-free environment and a structured supportive setting.
15. The City is a municipal corporation established and organized under the laws of Florida and is located in Palm Beach County, Florida. This lawsuit relates to certain discriminatory ordinances and zoning actions taken by the City under color of state law. Further, the City provides programs and services in the form of zoning laws and enforcement of those laws also under the color of state law.
INTRODUCTION 16. Since 1990, in response to an ever-increasing demand for safe, drug and alcohol-free housing for persons recovering from addiction, Boca House and Awakenings have rented housing to persons who are recovering from drug or alcohol addiction and who are
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currently not illegally using controlled substances, and to any other persons with disabilities who want to live in a supportive drug and alcohol-free environment.
17. Boca House and Awakenings provide their residents a safe, structured environment to live in, typically after they have successfully completed substance abuse treatment. To create the drug and alcohol free environment needed by persons in recovery, both Boca House and Awakenings require drug testing as a condition of residency and expel residents found to be using drugs or alcohol. Although Boca House and Awakenings provide a supportive environment, they do not provide treatment or counseling for drug or alcohol addiction.
18. The residents of each apartment, town home or single family home operated by Boca House and Awakenings pay rent and maintain their common households with other persons recovering from alcoholism or addiction. The residents in each home are the functional equivalent of a family. They divide the cost of, and collectively participate in maintaining, their common household. Any resident who uses drugs or alcohol is immediately and automatically expelled. While many Boca House and Awakenings residents have made multiple prior attempts at long-term recovery, the majority of those who live at Boca House or Awakenings for one year or more maintain long-term sobriety.
19. People who are handicapped or disabled by alcoholism or drug abuse are more likely to need structured living arrangements such as what a sober living residence provides. Living together for mutual support, away from the environment which may have contributed to their alcoholism or drug abuse, is critical to the recovery process. It also helps each person in recovery combat his or her own worst enemy-being alone. Persons in early recovery who do not live in an environment such as that provided by a sober living residence are at far greater risk of relapse into substance abuse.
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20. Residing in an environment free of drugs and alcohol is critical to recovery, particularly in the early stages. Drug and alcohol use is prevalent in almost all multi-family residential buildings that do not employ restrictions on drug and alcohol use enforced through testing. Residing in an environment where alcohol or drugs are used by others is one of the main triggers of substance abuse relapse for recovering drug addicts and alcoholics. For this reason, a sober living residence must employ drug testing as a condition of residence.
21. Alcoholism and drug addiction are lifetime diseases. They are chronic and progresstve. Unless these diseases are successfully treated, and long term sobriety is achieved, both diseases are ultimately fatal. Avoiding relapse and progressing in recovery are therefore the most important aspects of a recovering addict's or alcoholic's life.
22. Finding and staying in a healthy, functional environment, surrounded by people who are not using alcohol or drugs, away from people and situations that previously triggered substance use, with access to transportation and work opportunities, are essential elements to avoiding relapse.
23. Sober living residences such as Boca House and Awakenings provide such an environment and operate on the premise that people in the early, and for some, later stages of recovery from drug and alcohol addiction will have a better chance of success in remaining sober ifthey live in a highly supportive environment where substance abuse is not tolerated.
24. Boca House and Awakenings, along with the Plaintiff Residents, on their own behalf and on behalf of the other residents of Boca House and Awakenings bring this action challenging the City of Boca Raton's (the "City") zoning ordinance No. 4649, which was later amended in April 8, 2003 by City ordinance No. 4701 (Ordinance No. 4649, as amended is referred to herein as the "Ordinance"). By this action, Plaintiffs seek relief from the Ordinance,
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which intentionally and on its face excludes persons recovering from drug or alcohol addiction, and who reside in sober living residences, from residing in residential neighborhoods within the City. The Ordinance unla\\'fully prohibits housing specifically targeted for persons recovering from drug or alcohol addiction from continuing to operate in any residentially-zoned area of the City.
25. In addition, the Ordinance makes no provision for grandfathering Boca House's and Awakening's existing sober living residences, which are located in residential neighborhoods. Boca House and Awakenings were the direct targets ofthe Ordinance, and it was passed in response to public outcry to remove Boca House's and Awakenings' residents from their present residential neighborhoods. The City drafted the ordinance to exempt other sober living residences within the City, which are not in residential areas, while singling out Boca House and Awakenings, expressly because they are located in a residential area that the City did not (in its Mayor's words) deem "appropriate" for recovering addicts and alcoholics. (See infra ~54)
26. If the City is allowed to enforce the Ordinance, it will force Boca House's and Awakening's current residents to leave the residential neighborhoods where they now reside, and will prevent Boca House and Awakenings from offering structured, drug and alcohol-free housing to prospective handicapped and disabled residents, who are in need of independent, drug and alcohol-free housing opportunities. It would also extinguish Boca House's and Awakenings' long-established use of their real property.
27. Plaintiffs also separately seek relief from Section 28-2 of the City's zoning code which sets forth a definition of "family" that draws a distinction between persons related by blood or marriage and "unrelated" groups of persons, imposes severe restrictions on household
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size that apply solely to groups of unrelated persons, intentionally discriminates based on
familial or marital status of groups maintaining a common household, and has a disparate impact
on persons in recovery from alcoholism or addiction.
28. As explained below, both the Ordinance and Section 28-2 expressly create
discriminatory zoning schemes for residential housing, and intentionally and facially violate the
Fair Housing Act, 42 U.S.C. §3601, et. seq., and the Americans with Disabilities Act 42 U.S.C.
§11213 et. seq. In addition, both provisions have a disparate impact on disabled persons
suffering from alcohol or drug addiction such as the Plaintiff Residents and the other residents of
Boca House and Awakenings.
ORDINANCE NO. 4649
29. On May 29, 2002, the City's Council enacted the Ordinance which provides:
Section 1. Section 28-2, Code of Ordinances, is amended to read:
"Substance Abuse Treatment Facility" shall mean a service provider or facility that is: 1) licensed or required to be licensed pursuant to Section 397.311 ( 18). Fla. Stat. or 2) used for room and board only and in which treatment and rehabilitation activities are provided at locations other than the primary residential facility, whether or not the facilities used for room and board and for treatment and rehabilitation are operated under the auspices of the same provider. For the purposes of this paragraph (2), the following shall be deemed to satisfy the "treatment and rehabilitation activities" component: (a) service providers or facilities which require tenants to participate in treatment and rehabilitation activities as a term or condition of, or essential component of, the tenancy: or (b) service providers or facilities which facilitate, promote, monitor, or maintain records of, tenant participation in treatment and rehabilitation activities, or perform testing to determine whether tenants are drug and alcohol free, or receive reports of results of such testing.
"Social Service activities" shall mean the administration of any community-oriented service including offices, meetings, storage, library and similar administrative users. It shall not
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mean any social service activities, including without limitation, substance rehabilitation services, counseling activities and services, shelters for the homeless or abused, food/meal distribution for the needy, job training, and teen oriented programs.
Section 2. Section 28-197, Code of Ordinances, is created to read:
Section 28-197. Status of Substance Abuse Treatment Facilities.
Any Substance Abuse Treatment Facility that exists as of the effective date of this ordinance must comply with all provisions and requirements of this ordinance no later than eighteen (18) months after its effective date.
Section 3. Section 28-743, Code of Ordinances, is amended to read:
Section 28-743. Conditional uses.
(e) Substance Abuse Treatment Facility, provided that such facilities shall not be located within a radius of I,000 feet of another existing facility.
30. The Ordinance was later amended, in part, as follows:
Substance Abuse Treatment Facility" shall mean a service provider or facility that is: I) licensed or required to be licensed pursuant to Section 397.311(18). Fla. Stat. or 2) used for room and board only and in which treatment and rehabilitation activities are provided at locations other than the primary residential facility, whether or not the facilities used for room and board and for treatment and rehabilitation are operated under the auspices of the same provider. For the purposes of this paragraph (2), the following shall be deemed to satisfy the "treatment and rehabilitation activities" component: (a) service providers or facilities which require tenants or occupants to participate in treatment and rehabilitation activities, or perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition of, or essential component of, the tenancy or occupancy shall be deemed to satisfy the "treatment and rehabilitation activities" component of the definition contained in this section: or (b) service providers or facilities 'Nhich
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facilitate, promote, monitor, or maintain records of, tenant participation in treatment and rehabilitation activities, or perform testing to determine whether tenants are drug and alcohol free, or receive reports of results of such testing 31. On its face the Ordinance commits the City to the position that service providers or facilities which require tenants or occupants to participate in treatment and rehabilitation activities, or perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition of, or essential component of, the tenancy or occupancy .... must move out of the residential areas of the City and away from its general residential population. 32. Boca House and Awakenings perform testing to ensure that their residents remain drug and alcohol free. Such testing is necessary, because of their residents' disabilities, to allow the residents of Boca House and Awakenings to be able to function in a residential setting. Unless this Court strikes down the Ordinance, Boca House and Awakenings will no longer be able to offer a sober living environment to their recovering residents, including the Plaintiff Residents, and their residents will not be able to remain in their residential neighborhoods. 33. Because of their physical handicaps, Plaintiff Residents and others living at Boca House and Awakenings cannot live in the same housing that is available to non-disabled individuals, i.e., those who are not in the early stages of addiction recovery. The City's Ordinance specifically targets the minimum services that such persons need to reside in a residential setting, including those services that a community needs to maintain a drug- or alcohol-free environment. Under the Ordinance any housing for recovering alcoholics and drug addicts that provides such services is segregated into what is essentially a ghetto district that is completely separate from the areas where non-disabled persons reside.
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A. The Ordinance Intentionally And On Its Face Discriminates Against Recovering Persons In General, And The Residents Of Boca House And Awakenings In Particular.
34. The Ordinance targets any residential use that makes treatment or rehabilitation a condition of residency -- even if the treatment or rehabilitation takes place off site and is unaffiliated with the housing provider. It also extends to residential uses that require drug or alcohol testing as a condition of residency. These provisions specifically target sober living residences and prohibit sober living residences from being established or expanded in any of the City's residential zoning districts. Even established sober living residences may not be continued in such areas once the Ordinance takes retroactive effect.
35. The Ordinance allows the uses it defines as "Substance Abuse Treatment Facilities" only in institutional areas that are zoned for medical and hospital uses (the MC Medical Center district), or with conditional approval from the City Council, in commercial areas zoned for motel-business use (the RB-1 -Motel Business district), and in no other district. The Ordinance accomplishes this by defining Substance Abuse Treatment Facilities as allowed uses in the Medical Center District and conditional uses in the Motel Business District. This prohibits any use meeting the definition of "Substance Abuse Treatment Facility" from locating in any residential zoning district in the City.
36. The City has taken the position that inclusion of "Substance Abuse Treatment Facilities as defined uses in these districts prohibit their establishment in any other zoning district. In a December 10, 2002, letter to counsel for Boca House and Awakenings, the City's attorneys confirmed that any facilities meeting this definition would be subject to the "locational requirements of the ordinance," meaning that such a facility would need to relocate to the hospital district, or ifthe City grants a special exception, to the commercial-motel district.
37. The City's Ordinance specifically targets the minimum services recovering
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alcoholics and drug addicts need to reside in a residential setting. It thereby, on its face, segregates housing for such disabled persons away from the general population of the City and into districts otherwise reserved for institutional and commercial uses.
38. Section 3 of the Ordinance further requires that Substance Abuse Treatment Facilities in the RB-I - Motel Business District "not be located within a radius of 1,000 feet of another existing facility." Given the limited size of the Motel Business District, as well as the limited or non-existent availability of suitable properties within the available districts, this restriction will limit new "Substance Abuse Treatment Facilities" to the point where they may not be established within the City at all.
39. As established in the Ordinance, Substance Abuse Treatment Facilities include: [s]ervice providers or facilities which require tenants or occupants to participate in treatment and rehabilitation activities, or occupants to participate in treatment and rehabilitation activities, or perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition of, or essential component of, the tenancy or occupancy ...
Boca House and Awakenings fall within this definition as they "perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition of. .. the tenancy ..." The Ordinance therefore would prohibit Boca House and Awakenings from continuing to provide housing to persons in recovery in the residential zoning districts where they are presently located, and would allow Boca House's and Awakenings' operations only in non-residential districts established for hospitals or (with special exception approval) motels and commercial establishments.
40. The City's definition of"Substance Abuse Treatment Facilities," and in particular the language extending the definition to facilities that merely perform drug testing, was created
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specifically to apply to Boca House and Awakenings, which are not "licensed or required to be licensed pursuant to Section 397.311 (18). Fla. Stat.," do not "require tenants or occupants to participate in treatment and rehabilitation activities," and are located in residential (not institutional or commercial) areas.
41. Upon information and belief, the City was aware at both the time it passed and at the time it later amended the Ordinance that Boca House and Awakenings "perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition of .. . the tenancy ...,"and included this language specifically to force Boca House and Awakenings to cease providing housing to persons recovering from addiction in their current residential neighborhoods.
42. Upon information and belief, no use or facility within the City would be forced to relocate due to the passage of the Ordinance other than Boca House and Awakenings. Thus, the "locational requirements" ofthe City's ordinance apply only to Boca House and Awakenings, the existing uses that the City targeted for its discrimination.
43. Shortly after the litigation was filed the City amended the Ordinance, in part to be sure it would apply to Boca House and Awakenings. It modified the definition of"Substance Abuse Treatment Facilities" to include the term "occupants" to clarify that Boca House and Awakenings are subject to the Ordinance by significantly expanding its scope.
44. Section 2 of the Ordinance originally provided that "any substance abuse treatment facility that exists as of the effective date of this Ordinance must comply with all provisions and requirements of this ordinance no later than 18 months after its effective date." In the recent amendment to the Ordinance the operative date was changed to the later of 18 months after its effective date or 60 days after the conclusion of this litigation. In either event, this
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would allow for retroactive application of the ordinance to established housing uses. This retroactive provision was inserted specifically to target Boca House and Awakenings' existing operations and to displace their residents, including the Plaintiff Residents.
45. Upon information and belief, the City has a long-standing policy of recognizing existing uses and providing for their continuation when making modifications to its zoning code. The City provided no similar relief in its Ordinance, which was instead designed to force the nearly immediate relocation of the targeted '"Substance Abuse Treatment Facilities "away from residential areas. In the original Ordinance, such uses would have had to relocate a mere 18 months after its enactment (or November 2003).
46. Upon information and belief, other than the Ordinance, no change in the City's zoning code has ever applied to outright prohibit an existing use after its enactment. Thus, in addition to singling out Boca House and Awakenings because of the disabled nature of their residents, the City has subjected them to unequal treatment by denying the protection it typically grants to existing uses affected by zoning changes.
47. The expressed intent of those who enacted the Ordinance was to expel and ban disabled or handicapped persons in general, and Boca House and Awakenings and their Residents in particular, from the City's residential neighborhoods.
48. An early draft of the Ordinance applied only to licensed facilities providing treatment or rehabilitation services. Because neither Boca House nor Awakenings are licensed, or required to be licensed, and because neither provides treatment or rehabilitation services, the Ordinance would not have applied to the housing they provide. To correct this, during the Commission's debate the Ordinance was revised first to include within the definition of a "Substance Abuse Treatment Facility" non-licensed facilities, and then broadened to include
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housing where the housing provider merely employs drug testing. 49. The intent of the City, as manifested in the Ordinance, is to exclude persons in
recovery from residing in any residential district in the City. The Ordinance is expressly designed to relegate any housing provider that provides the environment needed by persons in recovery to the MC or RB-1 districts, where no other residential uses are located. This segregation and isolation of handicapped and disabled persons is precisely the type of discrimination that the FHA and the ADA were enacted to prohibit.
50. The City's discriminatory intent to oust specific disabled or handicapped individuals from the City's residential districts is reflected by the statements of City Attorney Diana Grub Frieser, Mayor Steve Abrams, and Council Members during regular Council meetings.
51. For instance, City Attorney Frieser explained how the Ordinance was intended to address not just licensed facilities but any residential use that houses persons in recovery in residential areas:
This Ordinance as drafted was intentionally drafted, based on direction from this council, to broadly encompass both the statutory definitions [of a treatment facility] and more. And the reason I say that is as you will recall, when the statute was going through the legislative process at different times it had a much broader scope. And what was adopted, in fact, had a narrower scope excluding certain facilities that the city had concerns about and wanted to address, because we believe that they had similar adverse impacts in our residential areas. And that's why it was drafted broader. (emphasis added). Transcript 66:12-23. These comments explain that the Ordinance was crafted to "broadly encompass.'' The City wanted to target "certain facilities," referring to Boca House and Awakenings" and crafted the ordinance (i.e., "drafted [it] broader") to be sure they would be
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caught in its net.
52. Throughout the Council meeting at which the Ordinance was enacted, neighbors
expressed their disdain for the Residents and made clear their desire to expel Boca House,
Awakenings and the Residents from their residential area because of their status as recovering
alcoholics and drug addicts. Among those comments:
a) Rose Vinti, the President of Boca Hill Condominium Association (condominiums located across the street from Boca House) explained that "living in a sober house area would be deteriorating to the surrounding neighborhood," and that the condominium owners "would like to see them go." Transcript 9:8-1 0; 15-16.
b) Grace Fisher, another resident, insisted that allowing former substance abusers to continue residing in the City's neighborhoods would result in the ghettoization of those neighborhoods, particularly her own. She was concerned that "adult drug addicts [were being put] into a residential neighborhood" where she felt they did not have a right to be and that Boca House and Awakenings attract "pedophiles, murderers, God knows what . . . . You are putting adult drug addicts into a residential neighborhood." Transcript 9:19-17:5.
c) Another neighbor, Anthony Amunatogui, stated: "My concern, is not with the halfway house. It's the location in my neighborhood.... There [are] appropriate places to house those type[s] of facilities and we should house those facilities in those places." Transcript 20:5-16.
d) Mark Traveis, the President of Boca Marquee's Condominium Association (located on Southwest 6th Street) also voiced his opinion: "Addicts in every family, sure, but do they have to be in my backyard and across the street, down everywhere in such concentration?" Transcript 46:24-7:1.
e) Carolyn O'Brien, a business owner, landlord and resident of the City: "[l]et's get them [addicts] out." Transcript 24:16-17.
53. During the Council Meeting Mayor Abrams and several Council Members
acknowledged that the Ordinance serves to ease the frustrations and complaints of the neighbors
of sober living residences and their residents. The statements of the Mayor and Council
Members confirm that the City's intent in passing the Ordinance was to discriminate against
handicapped individuals and segregate them from the remainder of the City's residents.
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54. Particularly indicative ofthis intent is Mayor Abrams' exclamation that "(t]here is a time and place for everything, and there are appropriate places for these facilities, but this neighborhood is not it." Transcript 73:19-21. This and other similar comments leave no doubt of the City's intent to force the targets ofthe Ordinance, Boca House and Awakenings and their residents, out of"this [residential] neighborhood" to a more "appropriate" institutional setting.
55. Councilman Bill Hagar joined the Mayor and commented on how his vote in favor ofthe Ordinance was the result ofthe ··profound, powerful and persuasive" arguments of the neighbors (as partially set forth above):
I want to compliment the neighborhood that came out. I found the compliments and comments that were provided to be profound, powerful and persuasive, and I would just add this: I think if all of you got to know each other, you could move mountains. So I'm going to vote for this. I want to compliment the people that worked on it. Transcript 70:5-11. In making this statement Councilman Hagar essentially adopted and agreed with the discriminatory arguments made at the hearing by the neighborhood proponents of removing housing to persons recovering from addiction from residential areas. 56. Councilwoman Carol Hanson followed by remarking on her six year struggle to make the sort of"improvements" the Ordinance accomplishes. Transcript 70:13-16. Most ofthe other Council Members agreed, including Councilwoman Susan Haynie who referred to herself as the Council's "original NIMBY" 1 and acknowledged that the Ordinance was enacted to provide a solution to the "problem" of persons in recovery residing in the City's residential neighborhoods. Transcript 73:5-13. 57. In addition, on or about April 2002, notes recorded from the City Attorney Diana Grub Frieser before the Ordinance was passed make clear that the City's intent was to keep 1 "NIMBY" means "not in my backyard."
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former substance abusers out of the City's residential neighborhoods. In particular, Ms. Frieser notes the City's intent to revise its zoning ordinance to make absolutely sure that sober living residences could not come into residential areas, such as the R 1 and R2 residential zoning districts. She indicated the City's intent was
[T]o insure that this use [sober house] which we will try to regulate cannot come into the R 1 or R2 under the 'social service' category, i.e. protect against: since it seems like a social service agency it must be permitted under those rules. Provide a definition of social service agency that reflects its use in the city. 58. Prior to passing the Ordinance, the City's discrimination against Boca House and Awakenings was carried out through the use of arbitrary, capricious and abusive zoning and building code enforcement practices, and attempts to convince other governmental bodies to take overly aggressive regulatory actions- all of which were intended to limit Boca House's and Awakenings' ability to rent housing to handicapped or disabled persons and to limit handicapped or disabled persons' choice of housing in residential areas. Such prior actions included repeated and abusive inspections designed to harass Boca House and Awakenings. They also included failed attempts to pass state legislation severely restricting sober living residences. 59. All of this shows a long pattern of City discrimination and animosity to persons in recovery and to Boca House and Awakenings for providing housing to such persons. The Ordinance is the City's ultimate solution to the "problem" of persons in recovery residing in its residential neighborhoods and the culmination of its discriminatory efforts. b. The Ordinance has a Disparate Impact upon Persons Recovering From Alcohol or Drug Addiction 60. In passing the Ordinance, the City created a zoning scheme designed to force persons with disabilities into zoning districts created for institutional, not residential, uses. Such a measure will obviously have a disparate impact on the affected persons. That is what it was
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intended to do, and it would fulfill its discriminatory intent all too well if left to stand. 61. As noted, persons in the early stages of recovery need a supportive structured
setting, such as what a sober living residence provides. Such persons also need to remain in a drug and alcohol free environment, which a sober house provides through strict enforcement of a zero-tolerance policy for drug and alcohol use.
62. The City's Ordinance directly targets these necessary aspects of early recovery to force recovering addicts and alcoholism out of residential areas. Without the structured, drug and alcohol free environment provided by a sober living residence, most addicts and alcoholics in the early stages of recovery could not function in a residential setting. If sober living residences ceased to provide these services and ceased maintaining a sober community, their residents would be at a far greater risk of relapse into substance abuse and many of them could not continue living in a residential setting.
63. The City's Ordinance thus creates a Hobson's choice for recovering addicts. Either they can live in an institutional setting, away from any residential neighborhood or they can attempt to live in a residential area, with no support, and around persons who use drugs and alcohol, and suffer a far greater risk of relapse into substance abuse.
64. If the Ordinance is enforced many recovering addicts and alcoholics in the early stages of recovery will, as a result of their disability, not be able to live in a residential area. It thus denies persons disabled by drug addiction or alcoholism the equal opportunity to reside in the same neighborhoods as non-disabled persons. c. Boca House and Awakenings Have Requested and the City Has Failed to Provide a
Reasonable Accommodation from the Discriminatory Ordinance and Refused to Make Reasonable Modifications to the Ordinance to Reduce its Discriminatory Impact. 65. On or about November 27, 2002, Boca House and Awakenings, on behalf of
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themselves and their residents, sent Mayor Abrams and the City Attorney Frieser a letter requesting clarification as to "what options exist for such property owners to continue to administer drug testing or continue to receive and maintain reports of drug testing regarding residents or potential residents after November 29, 2003?" That same letter requested any available reasonable accommodation that would allow sober living residences to remain in residential areas, and asked "[w]hat, if any, accommodation is the City willing to make in this regard? If there are accommodations available, please advise as to what the applicable procedures would be and under what criteria an accommodation request would be reviewed."
66. The City responded on December 10, 2002 acknowledging that Boca House and Awakenings "requested an accommodation from the City regarding the operation of the Ordinance" and asked counsel for Boca House and Awakenings to "let us know what proposal you might have and any authority that supports the need for the City to make an accommodation to particular sites affected by the Ordinance." That same letter further indicated that any uses in residential zoning districts meeting the definition of "substance abuse treatment facility" would be "subject to the locational requirements of the Ordinance." In other words, Boca House and Awakenings would be forced to relocate out of their residential neighborhoods.
67. On or about December 19,2002, in response to the City's December 10, 2002 letter, counsel for Boca House and Awakenings specifically noted that "[a]t a minimum, any such accommodation would need to allow existing and new multifamily residential uses in the City's residential districts to administer or receive reports of drug tests regarding potential residents, and to administer or receive reports of periodic and/or random tests on current residents."
68. That same day, December 19, 2002, in separate correspondence, counsel for Boca
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House and Awakenings, and its residents, sent a letter to Mayor Abrams requesting that the City "initiate proceedings to repeal the Ordinance."
69. On or about January 6, 2003 the City rejected Boca House and Awakening's accommodation request and indicated that it also would not repeal the ordinance, but stated that it would consider amendatory language to the Ordinance. In response to both December 19, 2002 letters, MichaelS. Popock, on behalf of the City, stated in a January 6, 2003 letter, that "[w]e are continuing to evaluate your proposal concerning the Ordinance and its application to your clients.... However, we remain willing to consider reasonable amendatory language that you may propose that will resolve your particular concerns while leaving the Ordinance basically intact."
70. As requested by the City, on or about January 14, 2003, Boca House and Awakenings submitted yet another request for accommodation and modification, this time proposing "reasonable amendatory language" as requested by the City and noting that "this amendment should be placed for first reading consideration at the next City Council meeting if it is to be pursued." ld. As requested by the City's attorneys, this set out specific proposed modifications to the ordinance that would allow residential apartments in the City to administer or receive reports of drug testing without being labeled a Substance Abuse Treatment Facility and forced out of residential areas. The proposal was that the City amended the ordinance as follows:
"Substance Abuse Treatment Facility" shall mean a service provider or facility that is: 1) licensed or required to be licensed pursuant to Section 397.311 (18), Fla. Stat. or 2) used for room and board ooly-and in which treatment and rehabilitation activities are provided on site at locations other than the primary residential facility whether or not the facilities used for room and board
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and for treatment and rehabilitation are operated under the auspiees of the same provider. For the purposes of this paragraph (2), the following shall be deemed to satisfy the "treatment and rehabilitation activities" component: (a) service providers or facilities which require tenants to participate in treatment and rehabilitation activities on-site as a term or condition of, or essential component of, the tenancy; or (b) service providers or facilities which facilitate, promote, monitor, or maintain records of tenant participation in on-site treatment and rehabilitation activities, or perform testing to determine 'Nhether tenants are drug and aleohol free, or reeeive reports of results of sueh testing. 71. In a subsequent telephone conference with counsel for Boca House and Awakenings, Mr. Popock, counsel for the City, rejected the proposal outright. The rejection of the proposed language was reiterated on or about January 30, 2003 in a conference as detailed in a March 21, 2003 letter from counsel for Boca House and Awakenings to counsel for the City. 72. The City has therefore identified no means for seeking an accommodation from the Ordinance other than through amendatory language, and has refused to make any such modification to its discriminatory Ordinance. As the Ordinance is both intentionally discriminatory and has a disparate impact on disabled persons, no request for accommodation was required to maintain a cause of action under the FHA or ADA. However, the refusal to act upon any of the various requests for accommodation and modification submitted by Boca House and Awakenings provides a separate, independent basis for relief against the Ordinance.
SECTION 28-2, CODE OF ORDINANCES 73. The residents of each apartment, town home or single family home operated by Boca House and Awakenings maintain a common household. People who are handicapped or disabled by alcoholism or drug abuse are more likely to need the living arrangements that a sober living residence provides, including sharing a household with other persons in recovery. 74. The City Code restricts these living arrangements through its requirement that only one family occupy a residential dwelling unit and its definition of the term "Family" in
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Section 28-2, Code of Ordinances, as follows:
1 person or a group of 2 or more persons living together and interrelated by bonds of consanguinity, marriage or legal adoption, or a group of persons not more than 3 in number who are not so interrelated, occupying the whole or part of a dwelling as a separate housekeeping unit with a single set of culinary facilities. The persons thus constituting a family may also include gratuitous guests and domestic servants. Any person under the age of 18 years whose legal custody has been awarded to the state department of health and rehabilitative services or to a child-placing agency licenses by the department, or who is otherwise considered to be a foster child under the laws of the state, and who is placed in foster care with a family, shall be deemed to be related to a member of the family for the purposes of this chapter. Nothing herein shall be construed to include any roomer or boarder as a member of a family.
75. This restriction in Section 28-2 on "unrelated" persons maintaining a household
creates a limit on the number of persons that can reside in a single unit-- regardless of size -- that
applies only to persons who are not related by blood, marriage or adoption.
76. Section 28-2 on its face discriminates based on family status and was intended to
discriminate by allowing an unlimited household size only for certain familial relationships, and
imposing severe restrictions on all other groups that do not meet the City's Family composition
rule. Households that meet the City's preferred family composition can be of any size,
regardless of the size of the dwelling unit and can further have an unlimited number of
"gratuitous guests and domestic servants." On the other hand, a clear distinction is drawn for
"unrelated adults" sharing common households, which the City found undesirable, as these are
limited to three persons, again regardless of the size of the dwelling.
A. Section 28-2 Intentionally and on its Face Discriminates on the Basis of Familial Status 77. By defining "family" in Section 28-2 as a group of unlimited size "living together
and interrelated by bonds of consanguinity, marriage or legal adoption" or "a group of persons
not more than 3 in number who are not so interrelated," the City draws a distinction between
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families established by marriage or parenthood and groups of unrelated adults that maintain a common household, such as the residents of Boca House and Awakenings.
78. The City's definition of family is clearly intended to preserve the "family character" of Boca Raton, by promoting a specified family composition and not intended to prevent overcrowding of a dwelling. Any group of persons related by blood, marriage or adoption can occupy whatever dwelling they wish regardless of the size of the family or the size of the dwelling unit. Meanwhile persons that do not have the type of relations accepted by the City are limited to a household size of three, again with no relation to the size of the dwelling. The Ordinance does nothing to limit density or overcrowding, so long as the persons at issue have the type of marital or familial composition the City sanctions and grants special privilege in Section 28-2.
79. Section 28-2 on its face discriminates against persons living together that are not related by blood, marriage or adoption. It singles out such persons for discrimination and imposes restrictions on their households that do not apply to other groups, where the types of relations outlined in Section 28-2 are maintained.
80. This type of discrimination based on familial status is prohibited by the FHA. Although the FHA contains an exemption for "any reasonable local, State or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling," this exemption only applies to generally applicable maximum occupancy restrictions that cap the total number of occupants in order to prevent overcrowding of a dwelling. To comply with the FHA an occupancy limit must apply to all households, regardless of family composition. The FHA does not sanction or allow the type of familial composition rules designed to preserve the family character of a neighborhood based on the composition of a household that Section 28-2 imposes.
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B. Section 28-2 has a Disparate Impact on Persons Recovering from Drug or Alcohol Addiction 81. Mutual support is critical to addiction recovery. Persons recovering from
addiction are far more often successful when living in a household with other persons in recovery. The residents of such a home provide each other with mutual support and supervision. In the early stages of recovery persons suffering from addiction need constant mutual supervision including sharing ofbedroom areas.
82. Limiting each household to no more than three unrelated individuals, without regard to the size of the residential unit, interferes with this support system and denies the residents of the household the critical mass which contributes to the recovery of all.
83. The limitation in Section 28-2 on unrelated persons has a disparate impact on disabled persons. Disabled persons, and in particular persons recovering from addiction, need to reside under living arrangements that do not meet the City's narrow definition of a family, but which in fact function as the equivalent of one.
84. Whereas non-disabled persons would have the ability to enter into a variety of living arrangements so as to satisfy the Ordinance, the residents of the Boca House and Awakenings, who are in the early stages of addiction recovery, cannot. The restrictions of Section 28-2 therefore have a disparate impact on the Plaintiff Residents and the other residents of Boca House and Awakenings. C. Boca House and Awakenings Have Requested, and the City has Failed to Provide, a
Reasonable Accommodation from Section 28-2. 85. On or about February 26, 2004, Boca House and Awakenings sent a letter to City Attorney Diana Grub Frieser requesting that a reasonable accommodation be made which would allow for up to four recovering alcoholics or drug addicts to share a common household in a two
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bedroom or larger dwelling unit. This would allow a large enough group in each household for the continual mutual monitoring and support that is needed for recovery, and would also facilitate shared bedroom accommodations for larger apartment units. The requested accommodation could be accomplished by whatever means the City would find most expedient to allow four persons living in recovery and functioning as a family to maintain a common household in units of two bedrooms or larger operated by Boca House and Awakenings.
86. On or about February 26, 27, and March 8, 2004, the Plaintiff Residents sent
letters to the City Attorney Freezer, reciting identical requests for accommodation from or
modification to Section 28-2.
87. On or about March 17, 2004, counsel for the City responded and directed Boca
House and Awakenings to submit an application as a "Petition for Special Case Approval," so
that the City can then "process" the request. This is essentially a quasi-judicial process ofthe
City that cannot result in modification to the family composition ordinance in section 28-2.
88. As the City Code does not appear to allow the City to waive section 28-2 under
the process identified, on March 23, 2004, counsel for Plaintiffs jointly sought clarification from
the City, stating:
From a review of the application materials you have provided and the City Code it is unclear whether the Petition for Special Case Approval process can in fact grant relief from section 28-2, given that this provision expressly imposes size limitations that apply to the households of the Residents and others residing at Boca House. Further, we can find no provision in the City Code referencing anything called a "Special Case Approval." If there is a provision in the City Code for "Special Case Approval," please provide a copy of same immediately as well as any criteria or standards that govern a "Special Case Approval."
Additionally, before we file any application for "Special Case Approval" we require confirmation from the City that it would have the power under its City Code to grant relief from the household size limitations in Section 28-2 through the Petition for Special Case Approval process. We would therefore ask that you clarify whether the City has authorization under its City Code to waive the directly applicable requirements of Section 28-2 through the "Special Case Approval" process, and to provide us with the
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City Code provisions under which the City would claim to have that authority. If there is no authority under the City Code for relief to be granted under this process, there would obviously be no point in filing the application, and we will take your response as a denial of our requests for reasonable accommodation.
89. To date the City has not responded. However, its March 17, 2004,

correspondence makes clear that the City refuses to make changes to its discriminatory ordinance

in Section 28-2. This would be the only available means to grant reasonable relief from that

provision for the housing arrangements needed by persons in recovery from drug addiction and

alcoholism.

IMPACT OF THE ORDINANCE AND SECTION 28-2 ON PLAINTIFFS

90. Between 1990 and the passage of the Ordinance on May 29, 2002, Boca House

and Awakenings purchased various buildings in the City and renovated them according to code

in order to provide affordable drug and alcohol-free housing to disabled persons. Boca House

and Awakenings invested time, money and effort into these projects. Boca House and

Awakenings have long-established and vested uses of their real property as sober living

residences.

91. These buildings were bought and renovations and other improvements to them

made with the reasonable investment-backed expectation that they would be used for sober

living residences. The buildings were in fact put to that use, and additional investments made in

reliance on continuing to operate as sober living residences. Boca House and Awakenings real

property would suffer severely diminished economic value if not allowed to operate as sober

living residences.

!!'

92. Boca House and Awakenings intend to continue renting housing to persons who

are recovering from drug or alcohol addiction and any other persons with a disability who want

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to live in a supportive drug and alcohol-free environment. 93. Florida state law does not prohibit the current uses of Boca House and
Awakenings' properties, and contains no prohibition against private housing providers requiring drug or alcohol testing as a condition of residency. The Ordinance, if allowed to be enforced, will end a legal use, and will prevent Boca House and Awakenings from continuing to provide housing to persons who are recovering from drug or alcohol addiction and other persons with disabilities who want to live in a supportive, drug and alcohol-free environment.
94. Although the retroactive effect of the Ordinance will not occur until the conclusion of this litigation, it presently prevents the expansion of Boca House and Awakenings operations to include any newly acquired residential buildings used for sober living residences. Since the enactment of the Ordinance, Boca House and Awakenings have had opportunities to acquire additional properties which they would use to provide much needed additional housing for persons recovering from alcoholism or substance addiction. They have not been able to follow through on these opportunities due to the passage of the Ordinance.
95. As the direct and proximate result of the City's enactment of the Ordinance, Boca House and Awakenings have had to forego the purchase of additional housing, thereby losing mcome.
96. In addition, the fact that the Ordinance will apply retroactively to Boca House and Awakenings present buildings has resulted in lost opportunity to refinance existing mortgages at more favorable rates. As the direct and proximate result of the City's enactment of the Ordinance, Boca House and Awakenings have been unable to refinance existing obligations at current market rates, thereby resulting in greater expense to them.
97. As the direct and proximate result of the City's discriminatory provision limiting
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the number of unrelated individuals who can reside in a dwelling unit, Boca House and Awakenings have, for a period of many years, been forced to limit the number of tenants, thereby losing income.
98. As a direct and proximate result of the Ordinance, the Resident Plaintiffs have suffered emotional and mental distress as a result of the uncertainty created over whether they will have to leave their sober living residence housing and whether they will be able to continue to reside in a residential area.
99. But for the Ordinance, the Plaintiffs and the other residents of Boca House and Awakenings would and could continue to lawfully reside in their current residences.
100. The Plaintiffs have retained counsel to represent them in this action and have agreed to pay them reasonable attorneys' fees and costs.
Count I Ordinance No. 4649: Violation of FHA by Passage
of Intentionally Discriminatory Ordinance 101. The Plaintiffs re-allege paragraphs 1-100 as if fully set forth herein. I02. The FHA, 42 U.S.C. §3604(f) prohibits discrimination by a public entity against handicapped or disabled persons or on the basis of disability. The FHA applies to a municipality's zoning decisions and enforcement actions. 103. The City's Ordinance violates FHA because the Ordinance intentionally and on its face discriminates against Plaintiffs and other persons disabled by drug addiction or alcoholism on the basis of their disabled and handicapped status. l 04. The City enacted the Ordinance with discriminatory intent. 105. The Plaintiff Residents have been and continue to be injured by the City's discriminatory Ordinance and are "aggrieved persons" within the meaning of 42 U.S.C.
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§3602(d). 106. Boca House and Awakenings have standing as housing providers to bring this
action on their own behalf and on behalf of their residents. 107. Boca House and Awakenings and their residents have been and continue to be
injured by the City's discriminatory Ordinance. WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated the FHA,
and declaring the City' Ordinance unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their
successors in office, their agents, and all those acting or purporting to act in concert with them from enforcing the Ordinance;
c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs; and e. Award all further reliefthat the Court deems proper and necessary.
Count II Ordinance No. 4649: Violation of FHA Disparate Impact upon Handicapped or Disabled Persons I08. The Plaintiffs re-allege paragraphs 1-100 as if fully set forth herein. 109. The FHA, 42 U.S.C. §3604(t) prohibits actions by a public entity that discriminate against handicapped or disabled persons or on the basis of disability or act to otherwise deny such persons the ability to reside in a dwelling. The FHA applies to a municipality's zoning decisions and enforcement actions. 110. The City's Ordinance violates FHA because the Ordinance, by targeting services required by disabled and handicapped persons, makes housing in residential areas unavailable to
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such persons, and has a disparate impact on Plaintiffs and other persons disabled by drug addiction or alcoholism. The Ordinance thereby subjects persons disabled by drug or alcohol addiction to discrimination.
Ill. The Plaintiff Residents have been and continue to be injured by the City's discriminatory Ordinance and are "aggrieved persons" within the meaning of 42 U.S. C. §3602(d).
112. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents.
113. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory Ordinance.
WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated FHA, and declaring the City' Ordinance unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their successors in office, their agents, and all those acting or purporting to act in concert with them from enforcing the Ordinance. c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs; and e. Award all further relief that the Court deems proper and necessary.
Count III Ordinance No. 4649: Violation of FHA by Failing to Grant Requested Reasonable Accommodation 114. The Plaintiffs re-allege paragraphs 1-100, as if fully set forth herein. 115. The City's Ordinance and the City's actions violate the FHA, 42 U.S.C.
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§3604(f)(3)(B), because the City has refused to make reasonable accommodations to its Ordinance when such accommodations were requested and are necessary to afford the Plaintiff Residents and the other residents of Boca House and Awakenings the equal opportunity to continue to reside in their residential neighborhoods.
116. As set forth above on a number of occasions the City was asked by Plaintiffs to provide accommodations from the discriminatory impact ofthe Ordinance.
117. The accommodations requested were reasonable. 118. The accommodations requested were necessary to afford the residents of Boca House and Awakenings the equal opportunity to use and enjoy residential housing within the residential areas of the City of Boca Raton. 119. The Plaintiff Residents have been and continue to be injured by the City's discriminatory Ordinance and are "aggrieved persons" within the meaning of 42 U.S.C. §3602(d). 120. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents. 121. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory Ordinance and the City's refusal to grant the requested reasonable accommodations. WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated the FHA and declaring the City' Ordinance unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their successors in office, their agents, and all those acting or purporting to act in concert with them
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from enforcing the Ordinance; c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs; and e. Award all further relief that the Court deems proper and necessary.

Count IV Ordinance No. 4649: Violation of ADA by Passage
of Discriminatory Ordinance

122. The Plaintiffs re-allege paragraphs 1-100 as if fully set forth herein.

123. Title II ofthe ADA, 42 U.S.C. §§12131, et. seq., prohibits discrimination by a

public entity against handicapped or disabled persons or on the basis of disability. Title II of the

ADA provides that "no qualified individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of the services, programs, or activities

of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. §12132.

124. The City's Ordinance violates Title II ofthe ADA and 28 C.F.R. 35.130 because

the Ordinance intentionally and on its face discriminates against Plaintiffs and other persons

disabled by drug addiction or alcoholism on the basis of their disabled and handicapped status.

125. The City enacted the Ordinance with discriminatory intent.

126. The City has violated Plaintiffs' rights, secured to them by the ADA, by enacting

an ordinance that intentionally discriminates against them on account oftheir handicap or

disability.

127. The Ordinance's requirement that Substance Abuse Treatment Facilities be

located in non-residential districts and in the commercial district "not be located within I,000

!'

feet of another existing facility" violates federal regulations implementing the ADA, which

prohibit a public entity in determining the size or location of a facility from imposing barriers

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that have the purpose or effect of excluding individuals with disabilities or otherwise subjecting individuals with disabilities to discrimination. 28 C.F.R. 35.130(b)(4)(i).
128. Each of the Plaintiff Residents is a qualified individual with a disability as defined in 42 U.S.C. § 12131 and 28 C.F.R. 35.104. Additionally, the residents of Boca House and Awakenings are qualified individuals with disabilities, and entitled to the protection of the ADA.
I29. The City is a public entity as defined in 42 U.S.C. § 12I31(1). Plaintiffs and the residents of Boca House and Awakenings have been subjected to discrimination by the City through its passage ofthe Ordinance.
I 30. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents.
I3 I. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory Ordinance.
WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated the Title II ofthe ADA, and declaring the City' Ordinance unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their successors in office, their agents, and all those acting or purporting to act in concert with them from enforcing the Ordinance; c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs; and e. Award all further reliefthat the Court deems proper and necessary.
Count V Ordinance No. 4649: Violation of ADA Disparate Impact upon Handicapped or Disabled Persons
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132. The Plaintiffs re-allege paragraphs 1-100 as if fully set forth herein. 133. Title II ofthe ADA, 42 U.S.C. §§12131, et. seq., prohibits discrimination by a public entity against handicapped or disabled persons or on the basis of disability. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. §12132. 134. The City's Ordinance violates Title II ofthe ADA and 28 C.F.R. 35.130 because the Ordinance, by targeting services required by disabled and handicapped persons, has a disparate impact on Plaintiffs and other persons disabled by drug addiction or alcoholism. The Ordinance thereby subjects disabled persons to discrimination. 135. Because of the disparate impact on Plaintiffs and other persons disabled by drug addiction or alcoholism, the Ordinance also violates federal regulations implementing the ADA, e.g., 28 C.F.R. 35.130. 136. Each of the Plaintiff Residents is a qualified individual with a disability as defined in 42 U.S.C. § 12131(2) and 28 C.F.R. 35.104. Additionally, the residents of Boca House and Awakenings are qualified individuals with disabilities, and entitled to the protection of the ADA. 137. The City is a public entity as defined in 42 U.S.C. § 12131(1). Plaintiffs and the residents of Boca House and Awakenings have been subjected to discrimination by the City through its passage of the Ordinance. 138. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents. 139. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory Ordinance.
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WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated the Title II of the ADA, and declaring the City' Ordinance unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their successors in office, their agents, and all those acting or purporting to act in concert with them from enforcing the Ordinance; c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs; and e. Award all further relief that the Court deems proper and necessary.
Count VI Ordinance No. 4649: Violation of ADA by Failing to Grant Requested Reasonable Accommodation 140. The Plaintiffs re-allege paragraphs 1-1 00, as if fully set forth herein. 141. The City's Ordinance and the City's actions violate Title II ofthe ADA and 28 C.F.R. § 35.130(7), because the City has refused to make reasonable accommodations and refused to make reasonable modifications to its Ordinance to avoid subjecting disabled persons to discrimination and afford such persons an equal opportunity to reside in residential neighborhoods. 142. As set forth above on a number of occasions the City was asked by counsel for Boca House and Awakenings to provide accommodations from the discriminatory impact of the Ordinance and make modifications to the Ordinance to reduce its discriminatory impact. 143. The accommodations and modifications requested were reasonable. 144. The accommodations and modifications requested were necessary to afford the residents of Boca House and Awakenings equal opportunity to use and enjoy residential housing
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within the City of Boca Raton. 145. Each ofthe Plaintiff Residents is a qualified individual with a disability as defined
in 42 U.S.C. § 12131 (2) and 28 C.F.R. 35.104. Additionally, the residents of Boca House and Awakenings are qualified individuals with disabilities, and entitled to the protection of the ADA.
146. The City is a public entity as defined in 42 U.S.C. § 12131(1). Plaintiffs and the residents of Boca House and Awakenings have been subjected to discrimination by the City through its passage ofthe Ordinance and refusal to modify the Ordinance to reduce its discriminatory effect.
147. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents.
148. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory Ordinance and the City's refusal to grant the requested reasonable accommodations and modifications.
WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated the Title II of the ADA, and declaring the City' Ordinance unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their successors in office, their agents, and all those acting or purporting to act in concert with them from enforcing the Ordinance or, as it applies to sober living residences, the limitation on four or more unrelated persons in a dwelling unit; c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs; and e. Award all further reliefthat the Court deems proper and necessary.
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Count VII Ordinance No. 4649: Equal Protection 149. The Plaintiffs re-allege paragraphs 1-100, as if fully set forth herein. 150. The Plaintiffs and the other residents of Boca House and Awakenings have been deprived of rights, privileges and immunities secured by the Constitution and laws ofthe United States, particularly the equal protection guarantee of the Fourteenth Amendment to the United States Constitution, for which 42 U.S.C. § 1983 provides a remedy. 151. By enacting a zoning ordinance which intentionally denies disabled persons, and disabled persons housing providers, the same housing opportunities as non-disabled persons, the City has acted arbitrarily and discriminatorily against disabled and handicapped persons, and the providers of housing, in violation of the Fourteenth Amendment to the United States Constitution. 152. The City enacted the Ordinance with discriminatory intent. 153. The Ordinance does not serve a legitimate public purpose. 154. If not stricken by this Court, the Ordinance would deny Boca House and Awakenings the existing, vested and highest and best use of their real property, and interfere with and deny Boca House's and Awakenings' investment-backed expectations for their property. 155. As the Ordinance serves no legitimate public purpose it should be stricken. However, if it were allowed to be enforced Boca House and Awakenings would be entitled to just compensation under the Fifth and Fourteenth Amendments to the United States Constitution and full compensation under Article X, section 6 of the Constitution of Florida for their extinguished property value.
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156. The City is a public entity existing and operating under color of state law. Plaintiffs and the residents ofBoca House and Awakenings have been subjected to discrimination under the color of state law by the City through its passage of the Ordinance.
157. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents.
158. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory Ordinance.
WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated the Equal Protection Clause of the Fourteenth Amendment, declaring the City's Ordinance unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their successors in office, their agents, and all those acting or purporting to act in concert with them, from enforcing the Ordinance; c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs pursuant to 42 U.S.C. § 1988; and e. Award all further relief that the Court deems proper and necessary.
Count VIII Section 28-2: Violation of FHA by Passage
of Discriminatory Ordinance 159. The Plaintiffs re-allege paragraphs 1-100 as if fully set forth herein. 160. The FHA prohibits discrimination by a public entity on the basis of familial status. The FHA applies to a municipality's zoning decisions and enforcement actions.
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161. Section 28-2 violates the FHA because Section 28-2 intentionally and on its face discriminates on the basis of the marital or family status of groups of persons sharing a common household. The FHA applies to a municipality's zoning decisions and enforcement actions.
162. The City enacted Section 28-2 with discriminatory intent. 163. The Plaintiff Residents have been and continue to be injured by the City's discriminatory discrimination in Section 28-2 and are "aggrieved persons" within the meaning of 42 U.S.C. §3602(d). 164. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents. 165. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory provision in Section 28-2. WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated FHA, and declaring Section 28-2 unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their successors in office, their agents, and all those acting or purporting to act in concert with them from enforcing the limitation on four or more unrelated persons in a dwelling unit in Section 282·' c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs; and e. Award all further relief that the Court deems proper and necessary.
Count IX Section 28-2: Violation of FHA Disparate Impact upon Disabled Persons
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166. The Plaintiffs re-allege paragraphs 1-100 as if fully set forth herein. 167. The FHA, 42 U.S.C. §3604(f) prohibits actions by a public entity that subjects handicapped or disabled persons to discrimination on the basis of disability or otherwise denies such persons the ability to reside in a dwelling. The FHA applies to a municipality's zoning decisions and enforcement actions. 168. Section 28-2 violates the FHA because it has a disparate impact on Plaintiffs and other persons disabled by drug addiction or alcoholism, and imposes limitations on the households maintained by such persons that do not apply to households of non-disabled persons who can maintain the marital or familial relations favored by the City. 169. Persons recovering from alcoholism or addiction are more likely, because oftheir disability, to live in the types of housing arrangements that do not meet the City's definition of family and are subject to the household size limitations of Section 28-2. Section 28-2 thereby discriminates against handicapped or disabled persons and denies equal opportunity in housing arrangements. 170. The Plaintiff Residents have been and continue to be injured by the City's discriminatory Ordinance and are "aggrieved persons" within the meaning of 42 U.S.C. §3602(d). 171. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents. 172. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory Ordinance. WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated FHA, and
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declaring Section 28-2 unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their
successors in office, their agents, and all those acting or purporting to act in concert with them from enforcing the Section 28-2 limitation on four or more unrelated persons in a dwelling unit;
c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs; and e. Award all further reliefthat the Court deems proper and necessary.
Count X Section 28-2: Violation of FHA by Refusal to Grant Requested Reasonable Accommodation 173. The Plaintiffs re-allege paragraphs 1-100, as if fully set forth herein. 174. Section 28-2 and the City's actions violate the FHA because the City has refused to make reasonable accommodations to Section 28-2 when such accommodations were requested and are necessary to afford the Plaintiff Residents and the other residents of Boca House and Awakenings equal housing opportunity. 175. As set forth above on a number of occasions the City was asked by Plaintiffs to provide accommodations from the discriminatory impact of Section 28-2. 176. The accommodations requested were reasonable. 177. The accommodations requested were necessary to afford the residents of Boca House and Awakenings the equal opportunity to use and enjoy residential housing within the residential areas of the City of Boca Raton and to mitigate the disparate and discriminatory impact of Section 28-2 on disabled persons. 178. The Plaintiff Residents have been and continue to be injured by Section 28-2 and are "aggrieved persons" within the meaning of 42 U.S.C. §3602(d).
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179. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents.
180. Boca House and Awakenings and their residents have been and continue to be injured by Section 28-2 and the City's refusal to grant the requested reasonable accommodations. WHEREFORE, the Plaintiffs request that this Court:
a. Enter judgment in favor of Plaintiffs, declaring that the City violated the Fair Housing Act, and declaring the Section 28-2 of the City Code unlawful and void ub initio;
b. Enter a permanent injunction enjoining the City, its officers and officials, their successors in office, their agents, and all those acting or purporting to act in concert with them from enforcing the Section 28-2 limitation on four or more unrelated persons in a dwelling unit;
c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs pursuant to 42 U.S.C. §§ 1988 and 3613; and e. Award all further reliefthat the Court deems proper and necessary.
Count XI Section 28-2: Violation of ADA Disparate Impact upon Disabled Persons 181. The Plaintiffs re-allege paragraphs 1-1 00 as if fully set forth herein. 182. Title II ofthe ADA, 42 U.S.C. §§12131, et. seq., prohibits discrimination by a public entity against handicapped or disabled persons or on the basis of disability. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. §12132. Title II of the ADA applies to a municipality's zoning decisions and enforcement actions.
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183. Section 28-2 violates the ADA, 42 U.S.C. § 12132 and 28 C.F.R. 35.130 because it has a disparate impact on Plaintiffs and other persons disabled by drug addiction or alcoholism. Persons recovering from alcoholism or addiction need to live in the types of housing arrangements that do not meet the City's definition of family and are subject to the household size limitations of Section 28-2. Section 28-2 thereby discriminates against handicapped or disabled persons and denies them the equal opportunity to reside within the City, and imposes restrictions on their households that do not apply to households of non-disabled persons, who are more likely to have the types of marital or familial relationships favored by the City.
184. Each of the Plaintiff Residents is a qualified individual with a disability as defined in 42 U.S.C. § 12131(2) and 28 C.F.R. 35.104. Additionally, the residents ofBoca House and Awakenings are qualified individuals with disabilities, and entitled to the protection ofthe ADA.
185. The City is a public entity as defined in 42 U.S.C. § 12131(1). Plaintiffs and the residents of Boca House and Awakenings have been subjected to discrimination by the City through its passage ofthe Ordinance.
186. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents.
187. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory provision in Section 28-2.
WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated Title II of the ADA, and declaring Section 28-2 unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their successors in office, their agents, and all those acting or purporting to act in concert with them
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from enforcing the Section 28-2 limitation on four or more unrelated persons in a dwelling unit; c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs; and e. Award all further relief that the Court deems proper and necessary.
Count XII Section 28-2: Violation of ADA by Failing to Grant Requested Reasonable Accommodation 188. The Plaintiffs re-allege paragraphs 1-100, as if fully set forth herein. 189. The City's Ordinance and the City's actions violate Title II ofthe ADA and 35 C.F .R. § 130(7) , because the City has refused to make reasonable accommodations and refused to make reasonable modifications to its Ordinance to avoid subjecting disabled persons to discrimination and afford such persons an equal opportunity to reside in residential neighborhoods. 190. As set forth above on a number of occasions the City was asked by counsel for Boca House and Awakenings to provide accommodations from the discriminatory impact of Section 28-2 and to make modifications to that provision to reduce its discriminatory impact. 191. Section 28-2 has a disparate impact on persons recovering from drug and alcohol addiction and denies them equal opportunity in housing arrangements. It thereby subjects such persons to discrimination. 192. The accommodations and modifications requested were reasonable. 193. The accommodations and modifications requested were necessary to afford the disabled residents of Boca House and Awakenings equal opportunity to use and enjoy residential housing within the City of Boca Raton. 194. Each of the Plaintiff Residents is a qualified individual with a disability as defined
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in 42 U.S.C. § 12131(2) and 28 C.F.R. 35.104. Additionally, the residents ofBoca House and Awakenings are qualified individuals with disabilities, and entitled to the protection of the ADA.
195. The City is a public entity as defined in 42 U.S.C. § 12131(1). Plaintiffs and the residents of Boca House and Awakenings have been subjected to discrimination by the City through its passage ofthe Ordinance.
196. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents.
197. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory Ordinance and the City's refusal to grant the requested reasonable accommodations.
WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated the Fair Housing Act, and declaring Section 28-2 unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their successors in office, their agents, and all those acting or purporting to act in concert with them from enforcing the Ordinance or, as it applies to sober living residences, the limitation on four or more unrelated persons in a dwelling unit; c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs; and e. Award all further reliefthat the Court deems proper and necessary.
Count XIII Section 28-2: Equal Protection 198. The Plaintiffs re-allege paragraphs 1-100, as if fully set set forth herein.
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199. By the enactment and enforcement of Section 28-2, the Plaintiffs and the other residents of Boca House and Awakenings have been deprived of rights, privileges and immunities secured by the Constitution and laws of the United States, particularly the equal protection guarantee of the Fourteenth Amendment to the United States Constitution, for which 42 U.S.C. § 1983 provides a remedy.
200. By enacting Section 28-2 which intentionally discriminates against persons that live in non-traditional arrangements that do not meet the City's definition of "family'' the City has acted arbitrarily and discriminatorily against persons based on marital or family status, and the providers of housing to such persons, in violation of the Equal Protection clause of the Fourteenth Amendment to the United State Constitution.
201. The City enacted Section 28-2 with discriminatory intent. 202. The City is a public entity. Plaintiffs and the residents of Boca House and Awakenings have been subjected to discrimination under the color of state law by the City through its passage of the Ordinance. 203. Boca House and Awakenings have standing as housing providers to bring this action on their own behalf and on behalf of their residents. 204. Boca House and Awakenings and their residents have been and continue to be injured by the City's discriminatory Ordinance. WHEREFORE, the Plaintiffs request that this Court: a. Enter judgment in favor of Plaintiffs, declaring that the City violated the Equal Protection Clause of the Fourteenth Amendment, declaring the City's Ordinance unlawful and void ab initio; b. Enter a permanent injunction enjoining the City, its officers and officials, their
47

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successors in office, their agents, and all those acting or purporting to act in concert with them, from enforcing the Ordinance;
c. Award the Plaintiffs nominal, actual and compensatory damages; d. Award the Plaintiffs their reasonable attorney's fees and costs pursuant to 42 U.S.C. § 1988; and e. Award all further relief that the Court deems proper and necessary.
Respectfully submitted,

James K. Green, Esq. Florida Bar No. 229466 JAMES K. GREEN, P.A. Suite 1630, Esperante 222 Lakeview Avenue West Palm Beach, FL 33401 561.659.2029 561.655.1357
Cooperating Attorney for the AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF FLORIDA, INC

William K. Hill, P.A. Florida BarNo. 747180 Gabriel E. Nieto Florida Bar No. 147559 JuanCarlos Antorcha Florida Bar No. 0523305 STEEL HECTOR & DAVIS LLP 200 South Biscayne Boulevard Suite 4000 Miami, FL 33131-2398 305.577.7000 305.577.7001 Facsimile

Counsel for Plaintiffs Bobby Hoover, Todd Randall C. Berg, Jr., Esq.

Conro)J Doug Byers, Richard Cohen and Peter M. Siegel, Esq.

Matth 'Wo(f

FLORIDA JUSTICE INSTITUTE OF FLORIDA,

INC.

200 S. Biscayne Boulevard

Suite 2870

Miami, FL 33131

305.358.2081

305.358.0910

Co-Counsel for Regency Properties of

Boca Raton, Inc. and Awakenings ofFlorida, Inc.

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CERTIFICATE OF SERVICE I HEREBY certify that a true and correct copy ofJh1 ~r7going was furnished by facsimile and U.S. Mail to the following addressees thisbb-fl9ay of March, 2004: Diana Grub Frieser City Attorney City of Boca Raton 201 W. Palmetto Park Road Boca Raton, FL 33432 Co-Counsel for Defendant City ofBoca Jamie A. Cole, Esq. Matthew H. Mandel, Esq. Weiss Serota Helfman Pastoriza Guedes Cole & Boniske, P.A. 3107 Stirling Road, Suite 300 Fort Lauderdale, FL 33312 Ph: (954) 763-4242 Fax: (954) 764-7770 Counsel for Defendant City ofBoca
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 Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 1 of 21
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

JEFFREY 0., et aI.,

Plaintiffs,

CASE NO. 03-80 178-CIV-PAINE

v.

Magistrate Judge Johnson

CITY OF BOCA RATON,

Defendant.
___________________1

MOTION TO DISMISS SECOND AMENDED COMPLAINT (and Incorporated Memorandum of Law)

Defendant, CITY OF BOCA RATON (the "City"), by undersigned counsel and pursuant to Rule l2(b)(6), Fed. R. Civ. P., moves this Court for the entry of an order dismissing the Second Amended Complaint (the "Complaint") filed by the Plaintiffs, Bobby Hoover, Todd Conroy, Doug Byers (collectively, the "Resident Plaintiffs"), Regency Properties of Boca Raton, Inc. ("Boca House"), and Awakenings of Florida, Inc. ("Awakenings"), for failure to state a claim upon which relief can be granted. In support of its motion, the City states:
OVERVIEW The Resident Plaintiffs, Boca House and Awakenings filed the instant lawsuit seeking relief from City Ordinance No. 4649 (the "City Ordinance") that they claim bans persons recovering from drug or alcohol addiction from residing in any residential neighborhood within the City. The Plaintiffs are also making a claim that the City refused to grant them a reasonable accommodation to the City'S purported limitation on four or more unrelated persons living together in a single dwelling unit (the "City's Unrelated Person Limitation").

WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE Be BONISKE, P.A.
3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954·763-4242 • FAX 954·76

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 2 of 21
Because the Complaint challenges three completely separate events as a basis for its claims under the Fair Housing Amendments Act ("FHAA") and the Americans with Disabilities Act ("ADA") - (1) the passage of the City Ordinance, (2) the facial validity of the City Ordinance, and (3) the City's purported refusal to make a reasonable accommodation from the City's Unrelated Person Limitation - and is also attempting to plead several causes of action under both the FHAA and ADA, dismissal is proper in the instant matter because Rule 1O(b), Federal Rules of Civil Procedure, mandates that the FHAA and ADA counts each be split into separate counts so that a clear presentation of the matters can be made.
Furthermore, the Resident Plaintiffs do not have standing to bring a claim for discrimination under the FHAA or ADA for the City'S purported failure to allow a reasonable accommodation from the City'S Unrelated Person Limitation. Fatally missing from the Complaint are any allegations of injuries suffered by the Resident Plaintiffs as a result of not receiving a reasonable accommodation.
Regardless, none of the plaintiffs, including the corporate plaintiffs, Boca House and Awakenings, can state a cause of action against the City under the FHAA or ADA for the City's purported failure to allow a reasonable accommodation from the City's Unrelated Person Limitation because the complaint is absent of any allegation that the plaintiffs ever made a request for a reasonable accommodation from that limitation. They also fail to allege what specific accommodation they were seeking, and it cannot be ascertained, based on the allegations in the Complaint, whether such requested accommodation would be reasonable or even necessary - matters that a plaintiff must demonstrate when making a claim under the FHAA and ADA.
2
WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE: Be BONISKE, P.A.
3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 3 of 21
Moreover, Boca House and Awakenings are not entitled to seek lost profits under the ADA because profit margins and loss of business opportunities do not directly benefit those handicapped individuals that the ADA is designed to protect.
Lastly, the Plaintiffs fail to state a cause of action for violation of their Equal Protection rights that purportedly underlies their claim under 42 U.S.c. §1983. The alleged constitutional violation is based on the same exact facts and allegations as their claims under the FHAA and ADA, does not allege anything more than certain "buzz words," and does not demonstrate, in any way, how their Equal Protection rights under the Fourteenth Amendment have been violated.
Accordingly, the Complaint should be dismissed. RELEVANT FACTS
The facts relevant to this motion, as alleged by the Plaintiffs in the Complaint), are as follows:
The Plaintiffs 1. Boca House and Awakenings are for profit Florida corporations that own certain apartment buildings, townhomes and single-family homes in the City and "rent" space to individuals recovering from alcohol and/or drug addiction in certain facilities within the City known commonly as sober houses. Complaint, ~17. 2. The Resident Plaintiffs allege that they are recovenng alcoholics and/or drug addicts "with disabilities" and are "in need of stable housing during [their] transition from rehabilitation to integrated community living." Complaint, ~~1 0-12.
) For the purpose of this Motion only, the City accepts all allegations within the Complaint as true.
3
WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE & BONISKE, P.A. 3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 4 of 21
3. The Resident Plaintiffs are currently residing in drug and alcohol-free housing operated by Boca House. Complaint, ~13.
The Plaintiffs' Challenge to the City Ordinance 4. The Plaintiffs assert that the City Ordinance, which was passed on May 29, 2002, is discriminatory on its face and was enacted with discriminatory intent in violation of the FHAA and the ADA (the "City Ordinance Challenge"). Complaint, ~~ 30, 58, 59, 67. 5. In the City Ordinance Challenge, the Plaintiffs allege that the purpose of the City Ordinance is "to exclude persons in recovery from residing in any residential district in the City" and that the ordinance is "expressly designed to relegate any housing provider that provides the environment needed by persons in recovery to the MC or RB-l districts, where no other residential uses are located." Complaint, ~39. 6. Boca House and Awakenings further assert that the City Ordinance was targeted to ban their particular sober house facilities from being located within the City's residential neighborhoods and to displace their tenants, including the Resident Plaintiffs. Complaint, '1~34, 35.
The Plaintiffs' Alleged Damages from the City Ordinance 7. Boca House and Awakenings both contend that as a result of the City Ordinance, they have had to "forgo the purchase of additional housing, thereby losing income." Complaint, ~49. Furthem1Ore, they also alIege that the enactment of the City Ordinance has prevented them from refinancing existing obligations at current market rates and therefore they "have had to refinance their obligations at higher rates than would otherwise have been available, causing economic harm to them." Complaint, ~50. Thus, both Boca House and Awakenings are asserting compensatory damages for lost profits and business opportunities.
4
WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE Be BONISKE, P.A.
3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764·7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 5 of 21
8. The Resident Plaintiffs claim that due to the City Ordinance, they "have suffered emotional and mental distress as a result of the uncertainty created over whether they will have to leave their sober living residence housing." Complaint, ~52.
9. However, on April 8, 2003 (more than two months before the initial complaint in this lawsuit was served), the City amended the City Ordinance (the "Amendment"), which provided that any Substance Abuse Treatment Facility (as defined by the Amendment) that existed as of May 29, 2002, including the facilities in which the Resident Plaintiffs reside, are not required to comply with the City Ordinance until "no later than sixty days after the rendition of a final non-appealable order in that certain lawsuit challenging Ordinance No. 4649 filed against the City in the United States District Court for the Southern District of Florida styled Joseph 0. et al v. City ofBoca Raton, Case No. 02-015320 AO [sic], unless otherwise directed in such order, or 18 months after its effective date, whichever is later." See Complaint, ~34.2
The Plaintiffs' Reasonable Accommodation Claim 10. The Plaintiffs also assert that the City violated the FHAA and ADA based on the City's alleged "refusal to make a reasonable accommodation with respect to its zoning provision that prohibits sober living residences from having four or more unrelated residents reside in a single dwelling unit, without regard to the size of the unit, even when such occupancy is on a temporary or emergency basis." (the "Reasonable Accommodation Claim"). Complaint, ~3.3 11. The Plaintiffs do not allege if their request for a reasonable accommodation was ever made to the City, what specific accommodation they were seeking, or which plaintiff made
2 A true and correct copy of the entire Amendment is attached as Exhibit "A." 3 The Plaintiffs have not attached this subject "zoning provision" to the Complaint nor alleged where in the City's Code of Ordinances such "zoning provision" is located.
5
WEISS SEROTA HELf'MAN PASTORIZA GUEDES COLE & BONISKE, P.A. 3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 6 of 21
the request for an accommodation. Furthermore, the Plaintiffs fail to state when, how, or to whom, the request was made and likewise fail to allege how the City purportedly refused to make the requested accommodation.
The Plaintiffs' Alleged Damages from the City's Purported Failure to Provide a Reasonable Accommodation from the City's Unrelated Person Limitation
12. Boca House and Awakenings claim that "[a]s the direct and proximate result of the City's refusal to provide a reasonable accommodation for the number of unrelated individuals who can reside in a dwelling unit, Boca House and Awakenings have been forced to limit the number of tenants, thereby losing income." Complaint, ~51.
13. However, the Resident Plaintiffs have not alleged any injury or damages that they have suffered as a result of the City's alleged refusal to provide a reasonable accommodation from the City'S Unrelated Person Limitation.
THE PLAINTIFFS' CLAIMS The Plaintiffs assert three counts in their Complaint: Count I - Violations of the Fair Housing Amendments Act (FHAA); Count II - Violations of the Americans with Disabilities Act (ADA); and Count III - Equal Protection under 42 U.S.c. §1983. The Plaintiffs are apparently bringing three types of challenges for both Count I and Count II (a facial challenge and a disparate treatment (or intentional discrimination) challenge to the City Ordinance and a claim for failure to provide a reasonable accommodation from the City's Unrelated Person Limitation). In addition, the Plaintiffs seek the same relief from each of the three counts. Specifically, the Plaintiffs seek injunctive relief enjoining the enforcement of the City Ordinance and City's Unrelated Person Limitation and also seek compensatory damages.
6
WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE Be BONISKE, P.A.
3107 STIRLING ROAD, SUITE 300, FORT lAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 7 of 21
MEMORANDUM OF LAW I. The Plaintiffs' Claims under the Count I (FHAA) and Count II (ADA) should be
dismissed Plaintiffs who allege violations under the FHAA or ADA may proceed under any or all of three theories: disparate treatment (or intentional discrimination), disparate impact and failure to make reasonable accommodations. Regional Economic Community Action Program, Inc. v. Cit), ofMiddletmvn, 294 F.3d 35,48 (2d Cir. 2002). A violation of the FHAA can also be established by demonstrating that the challenged statute or ordinance discriminates against the handicapped on its face. Horizon House Developmental Services, Inc. v. Township of Upper Southampton, 804 F. Supp 683, 693 (E.D. Pa. 1992). A. The Complaint fails to Comply with F.R.C.P. lOeb) The Complaint appears to make three challenges each under the FHAA and ADA, a facial challenge and a disparate treatment (or intentional discrimination) challenge to the City Ordinance, and a claim for failure to provide a reasonable accommodation from the City's Unrelated Person Limitation. Such multiple claims are required to be stated in separate counts pursuant to Federal Rule of Civil Procedure 1O(b), which provides in pertinent part:
Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. (Emphasis added). The Complaint challenges three completely separate occurrences as a basis for its FHAA and ADA claims: (1) the passage of the City Ordinance, (2) the facial invalidity of the City Ordinance, and (3) the City'S purported refusal to make a reasonable accommodation from the City's Unrelated Person Limitation. Complaint, '!~l, 3, 4, 58 and 67. Dismissal is proper in the instant matter because Rule 1O(b) mandates that the FHAA and ADA claims, each of which
7
WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE Be BONISKE, P.A.
3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 8 of 21
relate to separate occurrences, each be split into separate counts so that a clear presentation of the matters can be presented. Veltmann v. Walpole Pharmacy, Inc., 928 F.Supp. 1161, 1164 (M.D. Fla. 1997).
Additionally, the fact that the Plaintiffs are commingling three separate and distinct
claims under both Counts I and II subject the Complaint for dismissal as each claim requires different and distinct pleading and proof in order to be sustained.4 See Benoit v. Ocwen Financial Corporation, Inc., 960 F.Supp 287, 289-290 (S.D. Fla. 1997) (dismissing complaint
for failure to comply with Rule 10(b) as one of the plaintiffs counts suggested at least three separate and distinct claims that necessitated distinct pleading and proof to maintain each claim). Therefore, at the very least, the Complaint should be dismissed without prejudice to the Plaintiffs filing yet another amended complaint that separates their claims relating to the City Ordinance and their claims relating to the City's purported failure to grant a reasonable accommodation to the City's Unrelated Person Limitation.s Regardless, the Plaintiffs' claim that the City's refusal to make a reasonable accommodation from the City's Unrelated Person Limitation violates the
FHAA (Count 1) and ADA (Count II) is legally insufficient and should be dismissed with
prejudice.
4 The pleading elements necessary for making a reasonable accommodation claim to a facially neutral ordinance are completely different from those elements asserting that another ordinance is discriminatory on its face. 5 In fact, the City raised theses same grounds in response to the Plaintiffs' First Amended Complaint. However, the only changes made to the present Complaint were the deletion of certain individual plaintiffs, the addition of an additional individual plaintiff, and the disclosure of the Resident Plaintiffs' full legal names. The Plaintiffs elected not to amend the confusing and commingled counts or any of the other grounds raised in the instant motion - all of which were previously raised by the City in its Motion to Dismiss the First Amended Complaint.
8
WEISS SEROTA HEL.FMAN PASTORIZA GUEDES COL.E Be BONISKE, P.A. 3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954·763·4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 9 of 21
B. The Resident Plaintiffs do not have standing to challenge the City's Unrelated Person Limitation because they have not alleged how they have been injured from such limitation
In order to establish standing in an ADA case, a plaintiff must demonstrate: (1) that he has suffered an injury-in-fact, (2) a causal connection between the asserted injury-in-fact and the challenged action of the defendant, and (3) that the injury will be redressed by a favorable decision. Shatz v. Cates, 256 F.3d 1077, 1081 (11 th Cir. 2001). Similarly, in order to establish standing in an FHAA case, the plaintiff needs to allege a "distinct and palpable injury" as a result of the defendant's actions. Oak Ridge Care Center, Inc. v. Racine County. Wisconsin, 896 F.Supp 867, 873 (E.D. Wis. 1995), citing Havens Realty Cmp. v. Coleman, 455 U.S. 363, 372 (1982).
While Boca House and Awakenings allege injuries suffered as a result of the City's refusal to make a reasonable accommodation from the City's Unrelated Person Limitation (Col11plaint,~51), the Resident Plaintiffs do not allege how they have suffered any injury from the City's refusal. Therefore, the Resident Plaintiffs do not have the proper standing to make the Reasonable Accommodation Claim under the FHAA or ADA. Thus, the Resident Plaintiffs' Reasonable Accommodation Claim in Count I and Count II should be dismissed.
C. The Plaintiffs failure to allege that they made a request for a reasonable accommodation is fatal to their Reasonable Accommodation Claim under the FHAAandADA
Although the Complaint makes several references to the City'S refusal to provide a reasonable accommodation to the City's Unrelated Person Limitation (Complaint, ~~ 3, 25, 45, 51, 60, 68), there are no allegations whatsoever stating that the Plaintiffs actually made a request for a reasonable accommodation from the City'S Unrelated Person Limitation. As such, the Plaintiffs cannot state a cause of action under either the FHAA or ADA for the City's purpOlted
9
WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE & BONISKE, P.A. 3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954·763·4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 10 of 21
failure to make a reasonable accommodation from the City's Unrelated Person Limitation. Wood v. President and Trustees ofSpring Hill College ill the Cit)' ofMobile, 978 F.2d 1214, 1222 (11 th Cir. 1992) (holding that "a plaintiff cannot establish a claim under the Rehabilitation Act alleging that the defendant discriminated against him by failing to provide a reasonable accommodation unless he demanded such accommodation,,).6
A case directly on point is Gaston. In Gaston, the plaintiff, despite not ever making a request for a reasonable accommodation, claimed that the defendant discriminated against her, in violation of the ADA, by failing to provide a reasonable accommodation. 167 F.3d at 1363. In affirming the summary judgment entered in favor of the defendant, the Eleventh Circuit held that a plaintiff can only prevail on a claim that a defendant discriminated against him or her after the plaintiff first makes a request for a reasonable accommodation from the defendant, and the defendant fails to provide such accommodation. Id. at 1364. Thus, the court in Gaston held that the plaintiffs failure to demand a reasonable accommodation was "fatal to her ability to prevail on her claim that [the defendant] discriminated against her by failing to provide a reasonable accommodation." 167 F.3d at 1364.
Like the plaintiff in Gaston, the Plaintiffs in the instant case have failed to allege that they ever made a request for a reasonable accommodation from the City'S Unrelated Person Limitation. Such failure is therefore fatal to their Reasonable Accommodation Claim under the
6 Congress intended for courts to rely on cases interpreting the Rehabilitation Act, 29 U.S.c. § 791, when interpreting similar language in the ADA. Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11 th Cir. 1999). Likewise, because the FHAA adopted the concept of a reasonable accommodation from § 504 of the Rehabilitation Act, cases interpreting "reasonable accommodation" under the Rehabilitation Act also apply to claims under the FHAA. Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039,1044 (6th Cir. 2001).
10
WEISS SEROTA HELF"MAN PASTORIZA GUEDES COLE & BONISKE, P.A. 3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954·763·4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 11 of 21
FHAA and ADA, and accordingly, their Reasonable Accommodation Claim 111 Count I and Count II should be dismissed.
D. The Reasonable Accommodation Claim should be dismissed because the Plaintiffs fail to allege what reasonable accommodation they were seeking
Even if the Plaintiffs alleged that they did make a request for a reasonable accommodation from the City'S Unrelated Person Limitation, their Reasonable Accommodation Claim still fails because they do not allege the specific accommodation that they were seeking. See Bryant Woods Inn, Inc. v. Howard COllllty, 124 F.3d 597, 603-604 (4th Cir. 1997) (stating that the FHAA "requires an accommodation for persons with handicaps if the accommodation is (1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing," and it is the plaintiffs burden of proving each of these three elements by a preponderance of the evidence); See also, Loren v. Sasser, 309 F.3d 1296, 1302 (1] th Cir. 2002)(stating that a plaintiff has the burden of proving that a proposed accommodation is reasonable). Because the Plaintiffs have not set forth any specific requested accommodation, it cannot possibly be ascertained (or refuted) that such accommodation was reasonable and necessary to afford handicapped persons an equal opportunity to use and enjoy housing.
1. Reasonableness cannot be determined unless the requested accommodation is pled
Although it is not specifically alleged in the Complaint, it appears that the Plaintiffs want an accommodation to exceed the City's Unrelated Person Limitation. However, without providing the specific number of unrelated persons by which it wishes to exceed the City's Unrelated Person Limitation, the reasonableness cannot be determined.
For example, if the Plaintiffs sought an accommodation lo allow six unrelated persons to reside in a single dwelling unit, this may (or may not) be reasonable. Yet, if the Plaintiffs sought
11
WEISS SEROTA HELFMAN PASTORIZA GUEOES COLE & BONISKE, P.A. 3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 12 of 21
an accommodation to allow fifty unrelated persons in a single dwelling unit, it would most likely not be reasonable. Thus, without knowing the requested accommodation, its reasonableness cannot be detennined.
2. Necessity of the requested accommodation cannot be determined unless the requested accommodation is pled
The "necessary" element - the FHAA provision mandating reasonable accommodations which are necessary to afford an equal opportunity - requires the demonstration of a direct linkage between the proposed accommodation and the "equal opportunity" to be provided to the handicapped person. Bryant Woods, 124 F.3d at 604. This requirement has the attributes of a causation requirement. ld. If the proposed accommodation provides no direct amelioration of a disability's effect, it cannot said to be necessary. ]d.
Without knowing what the Plaintiffs' requested accommodation is, it cannot be detenl1ined if it is the sober house businesses as a whole that are in need of an accommodation. See Bryant Woods, 124 F.3d at 605 (the proper inquiry is not whether a particular profit-making company needs such an accommodation, but rather do such businesses as a whole need the accommodation). Furthermore, it cannot be determined from the Complaint whether accommodations are necessary for therapeutic reasons or financially viability rather than simply needed to tum a profit (or larger profit) for Boca House and Awakenings. See Lapid-Laurel, L.L. C. v. Zoning Board of Adjustment of the Township of Scotch Plains, 284 F.3d 442, 460-461 (3 rd Cir. 2002) (holding that plaintiffs proposed accommodation to allow a 95 bed care facility was not necessary to afford disabled persons an equal opportunity to live in a residential neighborhood because there was not sufficient evidence to show that the requested accommodalion was necessary for therapeutic reasons or for the group home's financial viability); Bryant Woods, 124 F.3d at 605 (there was no evidence that the sought accommodation
12
WEISS SEROTA HELFMAN PASTORIZA GUEDES COL.E Be BONISKE, P.A.
3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 13 of 21
of expanding group home limit from 8 persons to 15 persons was necessary to maintain the group home's financial viability).7 Accordingly, the Reasonable Accommodations Claim under the FHAA and ADA should be dismissed. II. The claims by Boca House and Awakenings in Count II for lost profits under the
ADA should be dismissed or stricken The City does not debate that equitable relief enjoining discriminatory municipal actions may, under appropriate circumstances, be a possible remedy under the ADA. Such equitable relief serves the purposes of the ADA by directly benefiting the handicapped and allowing such individuals to have equal housing opportunities. However, Boca House and Awakenings seek more than just equitable relief - they also seek damages. The law is well-settled that a plaintiff must demonstrate standing separately for each type of relief that is sought. DiscovelJ' House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277, 280 (ih Cir. 2003), citing Friends of the Earth, Inc. v. Laidlmv Ellvironmental Services (TOC), Inc., 528 U.S. 167 (2000). Boca House and Awakenings may have standing to seek equitable relief, but they lack standing to seek lost profits under the ADA. While the Complaint is couched in terms of seeking relief from the purported discrimination against recovering alcoholics and drug addicts, it is merely a facade by Boca House and Awakenings to commercially exploit the ADA to seek monetary damages for lost profits and business opportunities. See Complaint, ~~49-51. The ADA does not provide remedies to protect the
7 The Complaint makes no mention that a reasonable accommodation was necessary for therapeutic reasons or to maintain economic viability. Rather, Boca TIoLls~ anJ Awakclllngs merely state that they are "losing income" as a result of being refused a reasonable accommodation from the City'S Unrelated Person Limitation. See Complaint, ~51.
13
WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE 8< 80NISKE, P.A.
3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 14 of 21
profit margms of for-profit businesses, like Boca House and Awakenings. See 42 U.S.c. §12133.
A case directly on point is DiscovelJ! House. There, the court held that a for-profit corporate operator of drug treatment facilities did not have standing to seek lost profits under the ADA or the Rehabilitation Act stemming from the municipality's determination that a group home was not a pem1itted use. 319 F.3d at 280. In making its determination, the Seventh Circuit looked directly to the subject statutes and stated that "we see no way that either the ADA or the [Rehabilitation Act] contemplates a recovery for lost profits for a business like that of the Discovery House." ld.
The court further stated that: Discovery House has a claim to standing under the ADA and [Rehabilitation Act] only because it runs a business which provides services ... to persons presumably covered by [the ADA]. If it were running a plumbing business, it could hardly claim relief under [the ADA]. It follows, in our view, that the remedies we may find (other than those specifically set out in the statute) must, at the very least, be those which directly benefit the disabled (emphasis added).
319 F.3d at 281. Certainly, the profit margms and loss of business opportunities of Boca House and
Awakenings do not directly benefit those handicapped individuals that the ADA was designed to protect. Accordingly, Boca House and Awakenings do not have standing to seek compensatory damages under the ADA for lost profits and business opportunities. III. The Plaintiffs do not state a cause of action in Count III for violation of their Equal
Protection rights under §1983 In addition to their claims for violation of the FHAA and ADA, the Complaint attempts to set forth a cause of action for violation of their Equal Protection rights under 42 U.S.c. §1983,
14
WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE Be BONISKE, P.A.
3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 15 of 21
which arises out of the same facts and stems from the same purported unlawful practices by the City. Thus, because the Plaintiffs' §1983 claim is based on an alleged deprivation of rights created solely by the FHAA and ADA, the Plaintiffs cannot maintain an action under 42 U.s.C. §1983. Holbrook v. City of Alpharetta, ] 12 F.3d 1522, ] 531 (1] th Cir. ] 997) (holding that plaintiff could not maintain a §1983 action in lieu of or in addition to a claim under the Rehabilitation Act or ADA arising out of rights created by the Rehabilitation Act and ADA).
It is plainly obvious that the Plaintiffs' §1983 claim arises out of the purported violations of the FHAA and ADA. The Plaintiffs cloak their four paragraph bare-bones § 1983 claim under the guise of purportedly violating the Equal Protection clause of the Fourteenth Amendment. Complaint, ~~ 71-74. However, their §1983 claim, which is based on the same exact facts and allegations as their claims under the FHAA and ADA, merely uses "buzz words" in an attempt to state a cause of action under §1983 and does not, in any way, demonstrate how the Plaintiffs' Equal Protection rights have been violated. See Grey v. Wilburn, 270 F.3d 607, 610 (8th Cir. 2001) (affirming trial court's dismissal of plaintiffs two paragraph §1983 "Equal Protection" claim because it was predicated on the same allegations set forth in his claims under the ADA and Rehabilitation Act). Accordingly, the Plaintiffs' claim under §1983 should be dismissed.
15
WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE & aONISKE, P.A. 3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 16 of 21

WHEREFORE the City respectfully requests that this Court enter an order dismissing, in

whole or in part, all three Counts of the Complaint, attorneys fees and costs pursuant to 42

U.S.c. §§1988, 3613, or 12205, and for any further relief that this Court deems appropriate.

Respectfully submitted,

Diana Grub Frieser City Attorney City of Boca Raton 201 W. Palmetto Park Road Boca Raton, FL 33432

WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE & BONISKE, P.A. Co-Counsel for the City of Boca Raton 3107 Stirling Road, Suite 300 Fort Lauderdale, FL 33312 Telephone: (954) 763-4242 Telecopier: (954) 764-7770

BY:~~~' Jamie A. Cole Florida Bar No.: 767573 Matthew H. Mandel Florida Bar No.: 147303

16
WEISS SEROTA HELF"MAN PASTORIZA GUEDES COLE Be 80NISKE, P.A.
3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 17 of 21 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a tme and correct copy of the foregoing has been furnished
.f!5. by facsimile and regular mail this / day of December, 2003, to Gabriel E. Nieto, Esq.,
Steel Hector Davis, LLP, 200 South Biscayne Boulevard, Suite 4000, Miami, Florida 33131, (305) 577-7001, Randall C. Berg, Jr., Esq., and Peter M. Siegel, Esq., Florida Justice Institute, Inc., 200 South Biscayne Boulevard, Suite 2870, Miami, Florida 33131, (305) 358-0910, and James K. Green, Esq., Suite 1630, Esperante, 222 Lakeview Avenue, West Palm Beach, Florida 33401, (561) 655-1357.
Matthew H. Mandel
17
WEISS SEROTA HELFMAN PASTORIZA GUEDES COLE & BONISKE, P.A. 3107 STIRLING ROAD, SUITE 300, FORT LAUDERDALE, FLORIDA 33312 • TEL. 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 18 of 21
FINAL 4/812003

Incorpo;~t~d 1925

..

________________

. ,,,,

·.'''''·,·r~ .~_:'''''Ct''''~1~n

ORDINANCE
4701

AN ORDINANCE OF THE CITY OF BOCA RATON

RELATING TO SUBSTANCE ABUSE TREATMENT

3

FACILITIES; AMENDING SECTION 28-2, CODE OF

4

ORDINANCES, TO REVISE THE DEFINITION OF

5

SUBSTANCE ABUSE TREATMENT FACILITIES;

6

AMENDING SECTION 28-197, CODE OF ORDINANCES, TO

7

MODIFY THE TIME PERIOD FOR COMPLIANCE WITH

8

ORDINANCE NO. 4649 APPLICABLE TO A FACILITY THAT

9

EXISTED AS OF MAY 29, 2002; PROVIDING FOR

10

SEVERABILITY; PROVIDING FOR REPEALER; PROVIDING

11

FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE

12

13

WHEREAS, on May 29, 2002, the City Council of the City of Boca Raton enacted

14 Ordinance No. 4649 relating to Substance Abuse Treatment Facilities; and

15

WHEREAS, Ordinance No. 4649 was adopted to establish locai regulations for

16 Substance Abuse' Treatment Facilities consistent with state legislation, and did not, nor did it

17 intend to, discriminate against any individuals recovering from substance abuse, and did not,

EXHIBIT
"A"

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 19 of 21

nor did it intend to, violate any state or federal laws, including the Americans with Disabilities Act
2 and the Fair Housing Act; and

3

WHEREAS, the City Council of the City of Boca Raton desires to amend Its

4 regulations for Substance Abuse Treatment Facilities to reaffirm and clarify its original Intent that

5' Ordinance No. 4649 does not supercede City Code provisions and state law which provide for

6 the location of community residential homes in residential zoning districts, and to make

7 additional revisions to the definition of Substance Abuse Treatment Facilities; and

B

WHEREAS, a lawsuit challenging Ordinance No. 4649 was filed against the City in

9 the United States District Court for the Southern District of Florida styled Joseph O. et al v. City
10 01 Boca Raton, Case No. 02-015320 AD (the "Lawsuit"). The City Council of the City of Boca II Raton further desires to delay the date by which Substance Abuse Treatment Facilities in

12 existence on the effective date of Ordinance No. 4649 must comply with the Ordinance until

13 after the conclusion of the LawsuIt: and

14

WHEREAS, the City Council of the Clty of Boca Raton finds that it is in the public

15 interest to amend Sections 28-2 and 28-197, Code of Ordinances; now therefore

16

17

THE CITY OF BOCA RATON HEREBY ORDAINS:

18

19

Section 1. Section 26-2, Code of Ordinances, is amended to read:

20

·Substance Abuse Treatment Facility" shall mean a service provider or facility that is: .

21

1) Licensed or required to be licensed pursuant to F.S. § 397.311 (18) or

22

2) Used for room and board only and in which treatment ahd rehabilitation activities

23 are provided at locations other than the primary residential facility, whether or not the facilities

24 used for room and board and for treatment and rehabilitation are operated under the auspices

25 of the same provider. For the purposes of this subparagraph (2), the following 6hall be deemoa 26 00 satisfy the "troatFRent and rehabilitation activities" Gom~onent: (a) service providers or

2

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 20 of 21

facilities which require tenants or occupants to participate in treatment and rehabilitation

2 activities. or I2srfonn testing to determine whether tenants or occupants are drug and/or alcohol

3 free, as a term or condition of, or essential component of, the tenancy or occupancy shall be

4 deemed to satisfy the "treatment and rehabilitation activities" component of the definition

5· contained in this section. or (b) GOrviG9 prG'iisefs or facilities which faoilltate, pFemote, monitor,

6 or maintain resorBs of, tenant partioipation in treatment and rehabilitation aativities, or pe~Grm

7 testing to determine to determine whether tenants are drug and aloohel.froe, or rSGsi..,e reports

8 of reG~ltE sf Gush testing.

9 In addition, Community Residential Homes are defined in and regulated by Section 28-1304,

10 City Code, and Section 419.001, Florida Statutes, and therefore are not Substance Abuse

11 Treatment Facilities.

12

Section 2. Section 28-197, Code of Ordinances, ;s amended to read:

13

Section 28-197. Status of Substance Abuse Treatment Facilities.

14

Any substance abuse treatment facility that existed tOOats as of the effectiYe--date-of

15 tAlc Ordinance Ma~ 29, 2002 must comply with aI/ provisions and requirements of this chapter

16 no later than sixty days after the rendition of B final non-appealable order in that certain lawsuit

17 challenging Ordinance No. 4649 filed against the City in the United States District Court for the

)8 Southern District of Florida styled Joseph O. et al v. City of Boca Raton, Case No. 02-015320

19 AO, unless otherwise directed in such order, or 18 months after its effective date, whichever is

20 later,

21

Section 3. If any section, subsection, clause or provision of this ordinance is held

22 invalid, the remainder shall not be affected by such invalidity.

23

Section 4. All ordinances and resolutions or pans of ordinances and resolutions and

24 all sections and parts of sections In conflict herewith shall be and hereby are repealed,

25

SectiQn 6. Codification of this ordinance in the City Code of Ordinances is hereby

26 authorized and directed.

3

Case 9:03-cv-80178-DMM Document 62 Entered on FLSD Docket 12/22/2003 Page 21 of 21

2 3

day of

§ection

6.

This
.

ordinance

shall

take

effect

immediately

upon

ado. ption.

~ ~

~ PASSED AND ADOPTED by the City Council of the City of Boca Raton this

A;»z,' L ,2003

4
5
6
7 ATTEST:
8
9
10 11 12 13 14
15 16 17 18 19
20
21
22

CITY OF BOCA RATON, FLORIDA
~7<~ teVenCAbrams, Mayor Approved as to form:
003044a

OEPUTY MAYOR SUSAN WHELCHEl. COUNCIl. MEMBER DAVE FREUDENBERG COUNCIL MEMBER BILL HAGER COUNCIl. MEMBER SUSAN HAYNIE
23

4

 
 f&2 Case 9:03-cv-80178-DMM Document 76 Entered on FLSD Docket 02/23/2004 Page 1 of 7

FILED by

D. C.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 03-S017S-CIV-PAINE Jeffrey 0., et al.
Plaintiffs, vs. CITY OF BOCA RATON,
Defendant.
__________________1

FEB 20 2004
CLARENCE MADDOX CLERK U.S. DIST. CT. S.D. OF FLA•• W.P.B.

ORDER GRANTING IN PART DEFENDANT'S MOTION TO DISMISS SECOND AMENDED COMPLAINT This matter is before the court on Defendant's Motion to Dismiss Second Amended Complaint, filed on December 19, 2003 (D.E. #62). For the reasons set forth below, the court finds the motion should be granted in part. Standard ofReview To state a claim, Fed. R. Civ. P. 8(a) requires, inter alia, "a short and plain statement ofthe claim showing that the pleader is entitled to relief." The court must "take the material allegations of the complaint and its incorporated exhibits as true, and liberally construe the complaint in favor of the Plaintiff." Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797, 798 (11 th Cir. 1988) (citation omitted), affd, 494 U.S. 113 (1990). The law in this Circuit is well-settled that "the 'accepted rule' for appraising the sufficiency of a complaint is 'that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plain(iffcan prove no set 0 f facts in support 0 f his claim which wo~ .

(J

Case 9:03-cv-80178-DMM Document 76 Entered on FLSD Docket 02/23/2004 Page 2 of 7
entitle him to relief.'" SEC v. ESM Group, Inc., 835 F.2d 270,272 (11 th Cir. 1988) (quoting Conley v. Gibson, 355 U.S. 41,45-46 (1957», cert. denied, 486 U.S. 1055 (1988). The moving party bears a heavy burden. St. Joseph's Hosp., Inc. v. Hosp. Corp. ofAm., 795 F.2d 948, 953 (11 th Cir. 1986). Procedural History
Plaintiffs initiated this action in March 2003, alleging, inter alia, that a city ordinance violates the Fair Housing Amendments Act ("FHAA") and the Americans with Disabilities Act ("ADA"). In their Second Amended Complaint (D.E. #54), Plaintiffs Bobby Hoover, Todd Conroy, and Doug Byers I (collectively, "Resident Plaintiffs"), Regency Properties ofBoca Raton, Inc. ("Boca House"), and Awakenings ofFlorida, Inc. ("Awakenings") bring three claims against defendant, the City ofBoca Raton ("City"): (1) Violations ofthe Fair Housing Act; (2) Violations ofthe Americans with Disabilities Act; (3) Equal Protection.
Defendant moves to dismiss the Second Amended Complaint, alleging: (1) Rule 10(b) mandates that the FHAA and ADA counts each be split into separate counts; (2) Resident Plaintiffs do not have standing to bring a claim for discrimination under the FHAA or ADA; (3) No plaintiff can state a cause of action against the City under the FHAA or ADA because no plaintiff made a request for reasonable accommodation; (4) Boca House and Awakenings are not entitled to seek lost profits under the ADA; (5) Plaintiffs fail to state a cause of action for violation of their Equal Protection Rights.
'Plaintiff Jeffrey O. Has been dropped as a party to this action. 2

Case 9:03-cv-80178-DMM Document 76 Entered on FLSD Docket 02/23/2004 Page 3 of 7
Pertinellt Background Plaintiffs are challenging a zoning ordinance (City Ordinance No. 4649, the "Ordinance"),
alleging that the Ordinance bans persons recovering from drug or alcohol addiction from residing in any residential neighborhood within the City. Plaintiffs also claim that the City refused to grant them a reasonable accommodation to the City'S purported limitation on four or more unrelated persons living together in a single dwelling unit. Analvsis
The City's first argument for dismissal is that plaintiffs are asserting several theories under both the FHAA and ADA, each based on different factual occurrences. In response, plaintiffs suggest that the structure of the complaint is adequate under the federal rules, and that defendant should seek greater detail regarding the complaint's theories through discovery, rather than motion practice. Upon review of the complaint, the court agrees with the City'S characterization of the complaint; that is, there are several separate events fonning the basis for the FHAA and the ADA claims.
Federal Rule ofCivil Procedure 1O(b) provides the relevant standard for this court's analysis. Rule 1O(b) states, in pertinent part,
Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters setforth. (Emphasis supplied). This nIle essentially requires each separate claim be relegated to a separate count for the purposes of clarity. In this instance, the court finds that separate counts for each of the events would facilitate a clear presentation ofthe matters set forth and, as such, a more definite statement ofthe FHAA and
3

Case 9:03-cv-80178-DMM Document 76 Entered on FLSD Docket 02/23/2004 Page 4 of 7

ADA claims is appropriate.

The City next contends that Resident Plaintiffs do not have standing to bring a claim for

discrimination under the FHAA or ADA. In response, plaintiffs suggest that they have properly

plead a case for disparate impact under the FHAA. Specifically, plaintiffs draw the court's attention

to the following allegations of their Second Amended Complaint: (1) the restriction only applies to

unrelated persons and illegally discriminates based on family status; (2) the limitation on unrelated

persons has a disparate impact on disabled persons; and, (3) the limitation on unrelated persons has

been applied in a discriminatory manner specifically to plaintiffs.

The City has correctly noted that injury is a requisite element for standing in both ADA and

FHAA

cases

2 .

Plaintiffs believe the allegations noted in the above paragraph sufficiently set forth

plaintiffs'injury. In liberally viewing this complaint in the light most favorable to plaintiffs, as the

court is required to do at this stage, the court finds that the requisite element of injury has been

alleged. The court may suggest to plaintiffs, however, in the crafting of their more definite

statement, to consider setting forth injury in a more definite manner so as to remove any question

as to their standing.

The City further contends that no plaintiff can state a "reasonable accommodation" claim

against the City under the FHAA or ADA because no plaintiff made a request for reasonable

accommodation. In response, plaintiffs claim that the complaint does allege that the City denied a

reasonable accommodation. While this may be true, the court is unable to find any allegation

claiming that plaintiffs made a request for such accommodation.

2See, ~ Shotz v. Cates, 256 F.3d 1077,1081 (l1th Cir. 2001); Oak Ridge Care Center, Inc. V. Racine County, Wisconsin, 896 F.Supp 867, 873 (B.D. Wis. 1995), citing Havens Realty Corp. V. Coleman, 455 U.S. 363,372 (1982).
4

Case 9:03-cv-80178-DMM Document 76 Entered on FLSD Docket 02/23/2004 Page 5 of 7
This circuit has held that a plaintiffmust first make a request for reasonable accommodation from the defendant in order to prevail on a claim for discrimination under the ADA. See Gaston v. Bellingrath Garden & Home, Inc., 167 F.3d 1361 (lith Cif. 1999). Plaintiffs seek to distinguish Gaston by noting that Gaston dealt with a case on sununaryjudgment. The court recognizes that we are not yet at the summary judgment stage, but notes that on the face of the complaint, a request for reasonable accommodation is wholly absent. As such, the court finds that plaintiffs have failed to state a claim for reasonable accommodation under Counts I and II of the complaint3.
Next, the City claims Boca House and Awakenings, as for-profit businesses, are not entitled to seek lost profits under the ADA4. The court agrees with the City'S contention that the ADA does not provide remedies to protect the profit margins of for-profit businesses such as Boca House and Awakenings. As demonstrated in the case cited by the City, Discovery House, Inc. V. Consolidated City of Indianapolis, 319 F.3d 277 (7th Cir. 2003), for-profit operators do not have standing to seek lost profits under the ADA. The court recognizes that plaintiffs cite cases with contrary conclusions, but notes that these cases involve not-for-profit operators, a key distinction. Thus, the court finds that Boca House and Awakenings' claim for money damages under the ADA should be dismissed.
Finally, the City contends that Plaintiffs fail to state a cause of action for violation of their Equal Protection Rights under § 1983. The City claims that the § 1983 claim arises out of the purported violations of the FHAA and ADA, and is not a separate constitutional cause of action.
The court notes that this circuit prevents plaintiffs from bringing a § 1983 claim in addition
3While the court has decided that plaintiffs have not set forth a claim for reasonable accommodation, the court further agrees with the City that even if they had, there was no allegation as to what reasonable accommodation was sought.
4The City does not contest Boca House and Awakenings' ability to seek equitable relief. 5

Case 9:03-cv-80178-DMM Document 76 Entered on FLSD Docket 02/23/2004 Page 6 of 7
to an ADA cause of action where the only alleged deprivation is of the employee's rights created by the ADA. See Holbrook v. City of Alpharetta, 112 F.3d 1522, 1531 (11 th Cir. 1977). In the instant case, plaintiffs contend that their § 1983 claim is independent of the FHAA and ADA claims. In support of this contention, plaintiffs note their allegations of arbitrary discrimination, namely: (1) they have been treated differently from non-disabled individuals based on public animosity and prejudice; (2) the Ordinance was enacted specifically to force Boca House and Awakenings to relocate from the City's residential areas. See Plaintiffs Response to Defendant's Motion to Dismiss at p. 18-19. The court finds these allegations sufficient to maintain a separate cause of action under § 1983. Accordingly, it is
ORDERED AND ADJUDGED that Defendant's Motion to Dismiss is GRANTED IN PART as follows:
(1) Claims for reasonable accommodation (~~ 60, 68) are DISMISSED; (2) Boca House and Awakenings' claims for money damages under the ADA are
DISMISSED; (3) Plaintiffs shall provide a MORE DEFINITE STATEMENT as to Counts I and II
wi thin fifteen (15) days of the date of this order; (4) Count III remains as plead.
~ J.A DONE AND ORDERED at West Palm Beach, Florida, this ~ day of February, 2004.
TATES DISTRICT JUDGE
6

Case 9:03-cv-80178-DMM Document 76 Entered on FLSD Docket 02/23/2004 Page 7 of 7 cc: William K. Hill. Esq. Randall C. Berg, Jr., Esq. James K. Green, Esq. Diana Grub Frieser, Esq. Jamie A. Cole, Esq.
7

 
 Case 9:03-cv-80178-DMM Document 109 Entered on FLSD Docket 09/18/2006 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORID A

CASE NO . 03-80178-CIV-PAIN E

JEFFREY 0 ., et al .,

Magistrate Judge Johnso n

Plaintiffs ,

V.

CITY OF BOCA RATON ,

Defendant .

CITY OF BOCA RATON' S MOTION FOR PARTIAL SUMMARY JUDGMEN T

Defend ant, CITY OF BOCA RATON (the "City"), by undersigned counsel, move s

pursuant to Rule 56(b), Federal Rule of Civil Procedure, for final summary judgment as to

Counts 1-6 and 8-12 of the Third Amended Complaint . The statement of facts and legal

memorandum in support of the instant motion have been filed concurrently herewith . There are

no disputed issues of fact as to the facts necessary to grant the Motion .

Respectfully submitted ,

Diana Grub Frieser WEISS SEROTA HELFMAN

City Attorney PASTORIZA COLE & BONISKE, P .A.

City of Boca Raton

Co-Counsel for the City of Boca Raton

201 W . Palmetto Park Road 200 East Broward Boulevard , Suite 1900

Boca Raton, FL 33432 Fort Lauderdale, FL 3331 2

Telephone : (954) 763-4242

Telecopier : (954) 764-777 0

By :
Jamie Alan Col e Florida Bar No. : 767573
Matthew H . Mandel Florida Bar No . : 14730 3

WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST 13 ROWARD BOULEVARD , SUITE 1900, FORT LAUDERDALE , FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 109 Entered on FLSD Docket 09/18/2006 Page 2 of 2 CERTIFICATE OF SERVIC E
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular mail this day of September, 2006, to William Hill, Esq ., 200 South Biscayne Boulevard, Suite 2500, Miami, Florida 33131, (305) 374-7593, and James K . Green, Esq., Suite 1630, Esperanto, 222 Lakeview Avenue, West Palm Beach, Florida 33401, (561) 655-1357 .
a:mie A. Co Matthew H . Mande l
2
WEISS SEROTA HELFMAN PASTORIZA COLE Be BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

 
 Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 1 of 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORID A

CASE NO . 03-80178 -CIV-PAIN E

JEFFREY 0 ., et al .,

Magistrate Judge Johnso n

Plaintiffs ,

V.

CITY OF BOCA RATON ,

Defendant .

CITY OF BOCA RATON'S MEMORANDUM OF LA W IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMEN T Defendant, City of Boca Raton (the "City"), through undersigned counsel, submits its memorandum in support of its Motion for Partial Summary Judgment' as to Counts 1-6 and 8-12 of the Third Amended Complaint (the "Complaint") raised by the Plaintiffs, Bobby Hoover, Todd Conroy, Doug Byers, and Matthew Wolf (collectively, the "Individual Plaintiffs"),2 Regency Properties of Boca Raton, Inc . ("Boca House") and Awakenings of Florida, Inc . ("Awakenings")(Boca House and Awakenings will be collectively referred to as the "Corporate Plaintiffs"), and as grounds states :
OVERVIEW In this action, the Individual Plaintiffs, who contend that they are "disabled" an d "handicapped" because they are recovering substance abusers, and the Corporate Plaintiffs, wh o

I The City' s Statement of Material Facts in Suppo rt of Motion for Summary Judgment has been filed contemporaneously herewith .
2 Various individual plaintiffs, including "Jeffrey O .'" and Richard Cohen have dismissed their claims against the City [DE 49, 51, 53 and 86] . As such , only Bobby Hoover, Todd Conroy, Doug Byers and Matthew Wolf remain as individual plaintiffs .

WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 2 of 18
provide housing to allegedly "disabled" and "handicapped" recovering substance abusers, claim that certain City ordinances violate both the Americans with Disabilities Act (the "ADA") and the Fair Housing Amendments Act (the "FHAA") . However, the Individual Plaintiffs cannot, as a matter of law, establish the basic predicate for their ADA and FHAA claims - that their alleged "disability" or "handicap" substantially limits them from performing a major life activity (i .e. caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, bathing, household chores and brushing one's teeth) . Rather, it is indisputable that each of the Individual Plaintiffs can do each of these things and live in the same manner as persons without disabilities .
The Corporate Plaintiffs likewise cannot avail themselves of the ADA and FHAA because they, as a matter of law, cannot show that their residents' alleged "disability" or "handicap" substantially limits them from performing any major life activity . Rather, the owner of the Corporate Plaintiffs affirmatively conceded the exact opposite - they do not and will not accept individuals that cannot "function ." In fact, there is no major life activity that the Corporate Plaintiffs' residents cannot perform or engage in, as they admittedly can and do live "normal" lives .
Thus the City is entitled to summary judgment as to all of the Plaintiffs' ADA and FHAA claims in the Plaintiffs' Complaint .
PLAINTIFFS' CLAIM S On or about March 26, 2004, the Individual Plaintiffs and the Corporate Plaintiffs serve d their Third Amended Complaint (the "Complaint") to the City .3 In the Complaint, the Plaintiff s
3 In response to various motions to dismiss filed by the City, the Plaintiffs twice amended their complaint [DE 14 and 58] . The Second Amended Complaint was then dismissed in part by this Court on February 20, 2004 [DE 76] .
2
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770
16

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 3 of 18
assert that the Individual Plaintiffs as well as the individuals residing at Boca House and Awakenings are actually "disabled" and "handicapped" under the ADA and FHAA by virtue of their status as recovering alcoholics and/or drug addicts . Complaint, ¶¶4-6, 8, 13 . No other purported disability or handicap was alleged by the Plaintiffs .
The Plaintiffs assert that City Ordinance No . 4649, as amended by City Ordinance No . 4701, (the "City Ordinance") bans persons recovering from drug or alcohol addiction from residing in any residential neighborhood within the City, and therefore violates the ADA, FHAA and the 14th Amendment to the Constitution (Counts I through 7) . The Plaintiffs next assert that the City's purported limitation on four or more unrelated persons living together in a single dwelling unit, which is set forth in Section 28-2 of the City's Code of Ordinances (the "City's Unrelated Person Limitation"), likewise violates the ADA, FHAA and the 14th Amendment to the Constitution (Counts 8 through 13) .
All of the Plaintiffs' claims in Counts 1-6 and 8-124 of the Plaintiffs' Complaint are predicated and fully dependent upon the untenable position that the Individual Plaintiffs and the other residents of Boca House and Awakenings are "disabled" and "handicapped" only by virtue of their status as recovering substance abusers .
STANDARD OF REVIE W Summary judgment should be granted if the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ." See Evans v. City of Neptune Beach, 61 F . Supp. 2d 1245, 1247 (M .D . Fla. 1999) . The movant bears the initial responsibility of asserting the basis for its motion . See Celotex Corp. v.
4 Counts 7 and 13 are Equal Protection claims against the City arising out of the City Ordinance and City's Unrelated Person Limitation, respectively, and are not subject to the instant motion for summary judgment .
3
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 4 of 18
Catrett, 477 U .S. 317, 323 (1986); see also, Apcoa, Inc . v. Fidelity Nat'l Bank, 906 F .2d 610, 611 (11th Cir . 1990) . The movant, however, may discharge its burden by merely "`showing" that there is an absence of evidence to support the nonmoving party's case ." See Celotex Corp ., 477 U.S . at 325 . After the movant has carried its burden, the nonmoving party is then required to "go beyond the pleadings" and present competent evidence designating "specific facts showing that there is a genuine issue for trial ." Id. at 324 . While the Court is to view the evidence produced and all factual inferences rising from it in a light most favorable to the nonmoving parties, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ; the requirement is that there be no genuine issue of material fact ." Barfield v . Brierton, 883 F.2d 923, 934 (11`h Cir . 1989) (emphasis added) ; see also, Anderson v . Liberty Lobby, Inc ., 477 U .S . 242, 247-48 (1986) . If the nonmoving party's "response consists of nothing more than a repetition of [its] conclusory allegations, the district court must enter summary judgment in the moving party's favor ." Barfield, 883 F .2d at 934 .
MEMORANDUM OF LAW 1. The City is Entitled to Summary Judgment as to all of the Individual Plaintiffs'
Claims in Counts 1-6 and 8-12 Because They are not "Disabled " or "Handicapped" under the ADA or FHAA A. Existence of a Disability and Handicap under the ADA and FHAA The threshold requirement in any case brought under the ADA is a showing that the plaintiff suffers from a disability protected under the Act . Lottinger v. Shell Oil Co ., 143 F .Supp . 2d 743, 758 (S .D. Tex . 2001) . The ADA defines a disability as : (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual ; (2) a record of such an impairment ; or (3) being regarded as having such an impairment . See 42
4
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD , SUITE 1900, FORT LAUDERDALE , FLORIDA 33301 • TEL . 954 -763 .4242 • FAX 954 -764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 5 of 18
U.S.C. § 12102(2) . A plaintiff asserting a claim under the FHAA based upon a handicap must likewise demonstrate one of these three elements . See 42 U.S .C . § 3602(h) . 5
B. Being a Recovering Substance Abuser is not a Per Se Disability Neither the ADA nor the FHAA specifically designate any impairment, let alone being a recovering alcoholic or drug addict, as a disability per se . See Lottinger, supra (declining to find alcoholism to be a per se disability under the ADA) ; see Burch, 119 F .3d at 316 (same) ; McKey v. Occidental Chem . Corp., 956 F .Supp . 1313, 1317 (S .D.Tex .1997) (same) ; Adams v. Rite Aid of Maine, Inc., 2001 WL 111314, * 12 (D . Me . 2001)(drug addiction and alcoholism are not per se disabilities). Rather, the determination of whether an individual, such as a recovering substance abuser, is disabled under the ADA or FHAA is done on a case-by-case basis . Roig v. Miami Federal Credit Union, 353 F .Supp .2d 1213, 1215 (S .D. Fla. 2005)(individualized determination required by ADA) ; United States v. Southern Management Corp ., 955 F.2d 914, 918 (4th Cir . 1992)(under the FHAA, "[w]hether or not a particular person is handicapped is usually an individualized inquiry") . In fact, a court from the Southern District of Florida (Judge Seitz), stated that : Although alcoholics may be detrimentally impacted in many facets of their lives by their addiction, the ADA requires an individualized determination of impact, not simply an assumption . Goldsmith v. Jackson Memorial Hospital Public Health Trust, 33 F.Supp.2d 1336, 1341 (S .D . Fla. 1998) .
5 Because the definitions of "handicap" in the FHAA and "disability" in the ADA are "virtually identical," courts utilize the terms interchangeably and conduct the same analysis to determine whether a plaintiff is handicap or disabled under the ADA and FHAA . See, e .g., Cohen v. Township of Cheltenham, 174 F .Supp . 2d 307, 324 (E.D. Pa. 2001) .
5
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 6 of 18
Therefore, plaintiffs claiming to be disabled or handicapped because of alcoholism or drug addiction must still establish that they satisfy the requirements of the definitions of a disability under the ADA and handicap under FHAA and their respective regulations . Specifically, plaintiffs asserting that they are actually disabled from their substance addiction, as the Plaintiffs have asserted in the instant case,6 must establish that their alleged alcoholism or drug addiction substantially limits one or more major life activities . See Roig, 353 F .Supp .2d at 1216-1217 ; Lottinger, 143 F .Supp . 2d at 761 ; McKey, 956 F .Supp . at 1318 .
Although neither the ADA nor the FHAA explain what is meant by a "substantial limitation" or "major life activity," the regulations and judicial construction provide significant guidance . A substantial limitation is one that renders an individual unable to perform, or significantly restricts an individual's ability to perform a major life activity that the average person in the general population could perform . See 29 C.F .R. 1630 .2(j)(1).
The U .S. Supreme Court has defined "major life activities" as "activities that are of central importance to daily life," such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, bathing, household chores and brushing one's teeth . See Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U .S. 184, 197, 202; 122 S .Ct. 681, 691, 694 (2002) ; see also, 29 C.F.R. 1630 .2(i) ; 24 C .F.R. § 100.201(b) .
"Substantial limitation" and "major life activity" must be interpreted strictly "to create a demanding standard for qualifying as disabled ." Williams, 534 U .S. at 197, 122 S .Ct. at 691 . Such strict construction is confirmed by the first section of the ADA, which lays out th e
6 The Plaintiffs have only asserted violations of the ADA and FHAA based upon the first category of the ADA and FHAA - that they and/or their residents are actually disabled . See Complaint, ¶¶4-8, 13 and 33 . The Plaintiffs have not asserted nor have they presented any evidence of violations of the ADA or FHAA based upon the second (having record of impairment) or third (being regarded as having impairment) categories .
6
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 7 of 18
legislative findings and purposes of the ADA : When it enacted the ADA in 1990, Congress found that "some 43,000,000 Americans have one or more physical or mental disabilities ." § 12101(a)(1). If Congress intended everyone with a physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task to qualify as disabled, the number of disabled Americans would surely have been much higher . Cf. Sutton v. United Air Lines, Inc., 527 U .S. at 487, 119 S .Ct. 2139 (finding that because more than 100 million people need corrective lenses to see properly, "[h]ad Congress intended to include all persons with corrected physical limitations among those covered by the Act, it undoubtedly would have cited a much higher number [than 43 million] disabled persons in the findings") .
Williams, 534 U.S . at 197-198, 122 S .Ct. at 691 .
None of the Individual Plaintiffs, as demonstrated below, have met their burden of
showing that their alcoholism and/or drug addiction have hindered, much less substantially limited, their ability to perform any major life activity . It is indisputable (as they all have
admitted) that they can care for themselves, perform manual tasks, walk, see, hear, speak, breath, learn, work, bath and conduct household chores . In fact, all of the Individual Plaintiffs (as well as
all of the residents in Boca House and Awakenings), are able to drive, shop and engage in normal
life activities just like anyone who is not a substance abuser or recovering substance abuser . Manko, T .(1/14/04), pp . 122-1267 ; see pp .8-14, infra.
Numerous courts, including courts from the Southern District of Florida, have granted summary judgment against recovering alcoholics and substance abusers, finding that they were
not substantially limited in major life activities . See Roig, 353 F .Supp .2d at 1216 (Judge King
granted summary judgment because the plaintiff admitted that his alcoholism and treatment for alcoholism did not prevent him from engaging in any major life activity) ; Goldsmith, 3 3
A transcript of the sworn deposition of Steven Manko , the sole owner of Plaintiffs , Boca House and Awakenings of Florida, Inc . ("Awakenings "), taken on January 14, 2004, along with all of the referenced exhibits have been filed concurrently herewith and will be cited as "Manko, T.(1/14/04), p._."
7
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954- 763-4242 • FAX 954 -764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 8 of 18
F .Supp .2d at 1342 (Judge Seitz granted summary judgment because plaintiff's temporary limitations arising from alcohol consumption were not substantial limitations) ; see also, McKey, supra (granting summary judgment because plaintiff admitted that his alcoholism did not affect his ability to perform major life activities, including hearing, speaking, breathing, learning, dressing, bathing, concentrating and holding down a job) ; Burch, 119 F.3d at 316 (affirming summary judgment because plaintiff's temporary inebriation did not substantially limit major life activities) .
The Individual Plaintiffs' own testimony demonstrates that their substance abuse and recovery therefrom does not substantially limit any major life activity, and thus is fatal to their claims of being disabled under the ADA and FHAA . Accordingly, summary judgment should be entered in favor of the City as to all of their claims under the ADA and FHAA .
C. The Individual Plaintiffs are not disabled under the ADA or FHAA 1 . Bobby Hoover is not disabled or handicapped under the ADA or FHA A
Plaintiff Bobby Hoover was previously addicted to both alcohol and cocaine . Hoover, T.(11/7/03), p.34 .8 He has been completely sober (no alcohol or drugs) and has not received any treatment or counseling for his substance abuse for three and a half years . Id., pp.34, 40, 47, 5556. Bobby Hoover admits that he had a "strong recovery" from his substance abuse and is able to live anywhere he chooses . In fact, Bobby Hoover currently resides in a residence of his own an d
8 All assertions regarding Plaintiff Bobby Hoover, unless otherwise noted, are as of November 7, 2003, the date of his deposition . A transcript of his deposition has been filed concurrently herewith and will be cited as "Hoover, T .(11/7/03), p._."
8
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD , SUITE 1900, FORT LAUDERDALE , FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 9 of 18
does not rent from Boca House, Steven Manko individually (Boca House's owner), or any entity controlled by Manko . Hoover, T .(11/7/03), p.106 ; Wolf, T .(12/17/04), p .202 .9
There is no life activity, let alone a major life activity, that Bobby Hoover cannot do because he is a recovering substance abuser . Manko, T .(l/14/04), p.122 . On a daily basis, Bobby Hoover is able to use the bathroom, shower, dress, pray, and go to work. Hoover, T.(11/7/03), pp.47-48. Bobby Hoover works between 50 and 55 hours per week and has done so on a consistent basis for the past three and a half years . Id., pp.22, 28 . He also exercises frequently, lifts weights every other day, and has been actively driving since he received his driver's license on October 29, 2002. Id., pp.16, 28, 47-48 .
Bobby Hoover, on a regular basis, engages in recreational and social activities, and he is not limited from engaging in those activities in any fashion . Specifically, Bobby Hoover frequently dines in restaurants, attends sporting events, concerts and nightclubs, and he does not feel any temptation to have alcohol despite its availability to him at such venues . Id., pp.50-52. Furthermore, the fact that other people are drinking alcohol at such venues does not prevent or impede him from attending such venues or from fully enjoying himself. Id., pp.50-52, 172 . Lastly, there is nothing that prevents Bobby Hoover from having a relationship with his daughter or maintaining his relationship with his girlfriend. Id., pp .19, 49. In fact, Bobby Hoover has been dating his girlfriend for a year and considers the relationship to be a "very good relationship ." Id.
Clearly, Bobby Hoover's own admissions and actions demonstrate that his substance abuse does not substantially limit any major life activity . Therefore, he cannot demonstrate tha t
9 All asse rtions regarding Plaintiff Matthew Wolf, unless otherwise noted , are as of December 17, 2004, the date his deposition was concluded . Transcripts of his deposition (taken on July 16, 2004 and December 17, 2004) have been filed concurrently herewith and will be cited as "Wolf, T.(7/16/04), p ._" or "Wolf, T .(12/17/04), p ._."
9
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954- 763-4242 • FAX 954 - 764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 10 of 18
he is disabled under the ADA or handicapped under the FHAA as a matter of law . Accordingly, summary judgment should be entered in favor of the City as to all claims under the ADA and FHAA brought by Bobby Hoover in the instant lawsuit .
2. Doug Byers is not disabled under the ADA or FHAA Plaintiff Doug Byers was addicted to cocaine, but he has been completely sober (no drugs) for almost three years . Byers, T.(1 1/19/03), pp.14, 22, 25 .10 Doug Byers has not received any treatment or counseling for his substance abuse for more than one and a half years. Id., p.36 . On a daily basis, Doug Byers eats, watches television, socializes with his roommates, and goes to work . Id., pp.25-28. He is physically able to exercise, though he chooses not to do so, regularly plays Bingo, goes to the movies and participates in church activities . Id., pp .25-28 . Doug Byers affirmatively stated that he has no impairments that prevent or limit his ability to participate in any recreational activity that he wishes to engage in . Id. For the past three years, Doug Byers has been consistently working between 25-30 hours per week as a limousine driver as well as an approximate 8 additional hours per week as a church singer . Id., p .17-19. Doug Byers also has a driver's license and has been actively driving for nine years . Id., p .10. Doug Byers' status as being a recovering drug addict does not impair his ability to form or maintain relationships . He actively dates (approximately twice a week), enjoys a good relationship with his family, and there is nothing impeding him from forming friendships and relationships with other people . Id., pp . 28-29 ; 71-72.
10 All assertions regarding Plaintiff Doug Byers, unless otherwise noted, are as of November 19, 2003, the date of his deposition . A transcript of his deposition has been filed concurrently herewith and will be cited as "Byers, T .(1 1/19/03), p._. "
10
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 11 of 18
While Doug Byers testified that he feels unable to live alone, he also testified that he does not need to live at his current residence (or rent from the Corporate Plaintiffs) . Id., pp.47-48, 106107, 113 . In fact, Doug Byers testified that he could live elsewhere and rent from another landlord so long as he is with at least one other person who abstained from drugs and alcohol . Id.
Clearly, Doug Byers' own admissions and actions demonstrate that his substance abuse does not substantially limit any major life activity . Therefore, he cannot demonstrate that he is disabled under the ADA or handicapped under the FHAA as a matter of law . Accordingly, summary judgment should be entered in favor of the City as to all claims under the ADA and FHAA brought by Doug Byers in the instant lawsuit .
3. Todd Conroy is not disabled under the ADA or FHAA Plaintiff Todd Conroy was addicted to alcohol . Conroy, T .(3116104), pp .45-46." However, he has been completely sober (no alcohol) and has not received any treatment or counseling for his substance abuse for more than three years . Id., p . 50 . On a daily basis, Todd Conroy wakes up in the morning, goes to the gym (about 5 times per week), gets ready for work, goes to work, comes home and studies for his graduate school entry exam, watches television and goes to bed . Id., pp.53-54. For the past three years, Todd Conroy has held several jobs in which he has consistently worked between 35 and 45 hours per week, and nothing has impaired his ability to fully perform his duties in the various occupations he held during that time . Id., pp.33-37 . Todd Conroy has been actively driving for a year and a half, and nothing impedes his ability to drive . Id., pp.31-32 .
A transcript of the sworn deposition of Plaintiff Todd Conroy, taken on March 16, 2004, along with all of the referenced exhibits have been filed concurrently herewith and will be cited as "Conroy, T .(3116/04), p ._."
11
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 12 of 18
Todd Conroy states that the only purported limitation stemming from him being a recovering alcoholic is that he purportedly cannot go to bars . Id., p .148 . However, Todd Conroy denied any limitation from being able to socialize or date as he frequently socializes with his friends, spends time with his family and goes to restaurants. Id., pp .56-59. In fact, he is able to socialize with friends that consume alcohol in his presence and goes to restaurants that serve alcohol, and he does not feel tempted to have alcohol . Id.
Lastly, Todd Conroy does not need to live at his current residence or any residence owned by the Corporate Plaintiffs . In fact, Todd Conroy can live elsewhere and rent from another landlord so long as he was with at least one other person that abstained from drugs and alcohol . Id., pp.73-75 . Furthermore, even if he were subjected to random alcohol testing (which he is not), the idea of being randomly tested does not have any effect on his abstinence from alcohol . Id., pp.73, 88 .
Thus, Todd Conroy's own admissions and actions demonstrate that his substance abuse does not substantially limit any major life activity . Therefore, he cannot demonstrate that he is disabled under the ADA or handicapped under the FHAA as a matter of law . Accordingly, summary judgment should be entered in favor of the City as to all claims under the ADA and FHAA brought by Todd Conroy in the instant lawsuit .
4. Matthew Wolf is not disabled under the ADA or FHAA Plaintiff Matthew Wolf was addicted to alcohol and cocaine . Wolf, T .(7/16/04), p .58 . He has been completely sober for 1 year and denied any desire or urge to consume alcohol or use cocaine . Wolf, T .(12/17/04), pp .145-146 . Importantly, Matthew Wolf denied that being a recovering substance abuser impairs his ability to do anything that he wants to do. Wolf, T.(7/16/04), p.95 .
12
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD , SUITE 1900, FORT LAUDERDALE , FLORIDA 33301 • TEL . 954-763-4242 • FAX 954 - 764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 13 of 18
Specifically, Matthew Wolf, on a daily basis , wakes up in the mo rning, gets ready for work, goes to work, comes home , eats dinner, showers, then goes to his second job (or on nights he is not working his second job, he attends Alcoholics Anonymous meetings ), socializes with his friends , goes out for coffee , uses his computer and/or reads books . Wolf, T .(12/17/04), pp .139141 . Nothing impairs Matthew Wolfs ability from going out and socializing, and he c an go to bars and clubs without feeling tempted to consume alcohol . Wolf, T .(7/16/04), pp .90-92 . Matthew Wolf also plays softball , and nothing , including the fact that he is a recovering substance abuser, impairs him from exercising or playing sports. Wolf, T .(7/16104 ), pp .48-49 , 88-89 ; Wolf, T.(12/17/04), p .145 .
Furthermore , Matthew Wolf has worked at least 50 hours per week over a one year period (and currently works upwards towards 70 to 77 hours per week). Wolf, T .(7116/04), pp .44, 47; Wolf, T .(12/17/04), pp .123-125 . He has denied that being a recove ring substance abuser impedes or impairs his ability to perform any of his employment duties . Wolf, T .(7116/04), pp .44, 47; Wolf, T .(12/17/04), p.133 . Matthew Wolf has also been driving continuously for more than two years, and being a recovering substance abuser does not prohibit him from being able to drive . Wolf, T.(7116/04), p .40 .
Moreover , Matthew Wolf is not limited by his prior subst ance abuse from maintaining relationships . Specifically , being a substance abuser does not prevent Matthew Wolf from seeing his son or from being able to foster a father/son relationship with his son . Wolf, T .(7/16/04), pp.94-95 . Furthermore , Matthew Wolf has a girlfriend , and being a recove ring subst ance abuser does not affect his relationship with his girlfriend . Wolf, T .(12/17/04), pp . 146-147 .
Though Matthew Wolf resides at a residence owned by Boca House , neither he nor any of his roommates have been tested for drugs or alcohol, and drug and alcohol testing (or the threa t
13
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 14 of 18
of such testing) does not prevent Matthew Wolf from using or having any desire to use alcohol or drugs . Id., pp.182-183, 237 . As such, Matthew Wolf does not need to live at a residence owned by Boca House because he can live elsewhere and rent from another landlord (other than the Corporate Plaintiffs) so long as he was with at least one other person who voluntarily abstains from drugs and alcohol . Id., pp.154-155, 233 .
Thus, Matthew Wolf's own admissions and actions demonstrate that his substance abuse does not substantially limit any major life activity and that he is not disabled under the ADA or handicapped under the FHAA, and, accordingly, summary judgment should be entered in favor of the City as to all claims under the ADA and FHAA brought by Matthew Wolf in the instant lawsuit . III. The City is Entitled to Summary Judgment as to the Corporate Plaintiffs ' Claims
because their Residents are not Disabled or Handicapped under the ADA or FHAA Like the Individual Plaintiffs, the Corporate Plaintiffs are asserting claims under th e ADA and FHAA based solely upon the purported actual disabilities of their residents . Complaint, ¶¶13, 33 . Therefore, a threshold issue to determine whether the Corporate Plaintiffs' may assert claims under the ADA or FHAA is whether their residents actually have physical or mental impairments that substantially limit major life activities . Cohen, 174 F .Supp .2d at 323324 . The Corporate Plaintiffs have not produced a shred of evidence demonstrating that even one of their residents have impairments that affect major life activities, and thus the City is entitled to summary judgment as to the Corporate Plaintiffs' claims under the ADA and FHAA . The facts in the instant case are similar to those in Cohen, supra. There, the plaintiff, an operator of a proposed group home for abused, neglected and abandoned children sued the Town of Cheltenham and its zoning board (collectively, the "Town") for violation of the FHAA based
14
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD, SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 15 of 18
upon the Town's denial of certain zoning approvals for the proposed use . 174 F .Supp .2d at 310312 .
At the outset, the court in Cohen was mandated to conduct an individualized inquiry to evaluate whether the potential residents of the proposed group home were in fact handicapped under the FHAA (i .e. having physical or mental impairments that substantially limited one or more major life activities) . Id. at 324-325 . The court found that the evidence presented by the plaintiff consisted of mere conclusory assertions that abused, abandoned and/or neglected children are handicapped and did not contain any evidence that a specific child who would reside in the group home was in fact mentally or physically impaired . Id. at 327-328 (rejecting the plaintiff's suggestion that abused, abandoned and/or neglected children might generally be handicapped because it "directly contradicts the United States Supreme Court's declaration that courts must conduct an individualized inquiry in deciding the question of disability and/or handicap"). In addition, the court found that the plaintiff failed to produce evidence showing how the proposed impairment of the intended group residents (assuming it was an impairment) substantially limited the major life activities of such residents . Id. at 329-330 . Accordingly, the court entered summary judgment in favor of the Town . Id. at 332 .
Here, the Corporate Plaintiffs, just like the plaintiff in Cohen, have not offered or produced any evidence demonstrating that any of their residents are in fact disabled or handicapped . Rather, the testimony of Steven Manko, the owner of the Corporate Plaintiffs, demonstrates quite the opposite.
Manko testified that Boca House and Awakenings will not accept individuals who are unable to "function ." Manko, T.(1/14/04), p .150 . In addition, the residents at a Boca House or Awakenings facility (in housing known as Phase I/Level I, Phase II/Level II, and Phase III/Leve l
15
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD , SUITE 1900, FORT LAUDERDALE, FLORIDA 33301 • TEL . 954 - 763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 16 of 18
III), must : cook for themselves, clean for themselves, and perform the same functions and
activities as people who are not recovering substance abusers . 12 In fact, there is nothing that the
residents of Boca House and Awakenings cannot do as they can and do live "a normal life ."
Manko, T .(l/14/04), pp. 150-152, 166, 237, 331 .
Specifically, Manko testified :
Q• With the exception of drinking and doing drugs -- just take them off the table -- do the people in Boca House do the same types of functions and activities --
A. Absolutely .
Q. -- that just normal people do?
A. Absolutely . That's what I said .
Q. And there's nothing -- nothing that they can't do ; is that correct ?
A . There's nothing they can't do . They can do anything . It's suggested they don't hang around bars or hang out with people who are active, but otherwise, they do ; they live a normal life .
Manko, T .(1/14/04), pp .151-152 .13
12 As of the date of their depositions, Bobby Hoover, Doug Byers and Todd Conroy resided in housing known as "graduate houses" or "Phase IV"/ "Level IV ." Hoover, T .(l 1/7/03), p.29 ; Byers, T .(l 1/19/03), p .46 ; Conroy, T .(3/16/04), pp .70-71 . This type of housing is not owned by the Corporate Plaintiffs, but instead, by the Corporate Plaintiffs' owner, Steven Manko or another entity controlled by Manko . Manko, T.(1/14/04), pp .74, 78, 120-121, 183, 335-336 . Residents in this type of housing are not tested for drugs or alcohol . Id. Like the Corporate Plaintiffs' residents, residents in "graduate house" are able to drive, shop and do normal life activities just like anyone who is not a recovering substance abuser . Id., pp.122-126 .
13 While group home operators could prove that their residents are disabled by virtue of setting admission standards that require as a condition for residency, the existence of an impairment that substantially limits major life activities, the Corporate Plaintiffs cannot do so as Manko's sworn testimony demonstrates that residents can only be admitted if they do not have any substantial limitations of major life activities .
16
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD , SUITE 1900, FORT LAUDERDALE , FLORIDA 33301 • TEL . 954-763-4242 • FAX 954-764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 17 of 18
Thus, the fact that all of the Corporate Plaintiffs can and do live "a normal life" (which is also demonstrated by Plaintiff Matthew Wolf, the only Resident Plaintiff that still resides in a property owned by Boca House), affirmatively demonstrates that none of its residents have impairments that substantially limit major life activities . Accordingly, summary judgment should be entered in favor of the City as to all claims brought by the Corporate Plaintiffs under the ADA and FHAA .
WHEREFORE, the City respectfully requests an order from the Court granting summary judgment as to all claims against the City under the ADA and FHAA (Counts 1-6 and 8-12), attorneys' fees under the ADA and FHAA, reasonable costs, and for such additional relief as the Court deems appropriate .
Respectfully submi tted, Diana Grub Frieser WEISS SEROTA HELFMAN City Attorney PASTORIZA COLE & BONISKE, P .A. City of Boca Raton Co-Counsel for the City of Boca Raton 201 W . Palmetto Park Road 200 East Broward Boulevard, Suite 1900 Boca Raton , FL 33432 Fort Lauderdale, FL 3331 2
Telephone : (954) 763-4242 Telecopier : (954) 764-777 0
By : ramie AlanTCbie Florida Bar No . : 767573 Matthew H . M andel Florida Bar No . : 1473 0 3
17
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD , SUITE 1900, FORT LAUDERDALE , FLORIDA 33301 • TEL . 954 -763-4242 • FAX 954 -764-7770

Case 9:03-cv-80178-DMM Document 111 Entered on FLSD Docket 09/18/2006 Page 18 of 18 CERTIFICATE OF SERVIC E
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular mail this - ~-1- - day of September, 2006, to William Hill, Esq ., 200 South Biscayne Boulevard, Suite 2500 . Miami, Florida 33131, (305) 374-7593, and James K. Green, Esq., Suite 1630, Esperanto, 222 Lakeview Avenue, West Palm Beach, Florida 33401, (561) 655-1357 .
Jamie A . Cole Matthew H . Mande l
18
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P .A . 200 EAST BROWARD BOULEVARD , SUITE 1900, FORT LAUDERDALE , FLORIDA 33301 • TEL . 954 - 763-4242 • FAX 954- 764-7770

 
 Case 9:03-cv-80178-DMM Document 126 Entered on FLSD Docket 11/01/2006 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 03-80178-CIV-PAINE JEFFREY 0., et al.,
Plaintiffs,
vs.
CITY OF BOCA RATON, Defendant.
------------------------~/

CLt\Hll~l~~ MAclrCJX ClF''H< !I~; D!SI. CT.
S.D. OF FLA. • W.P.B.

ORDER OF RECUSAL Circumstances currently exist which warrant recusal of the undersigned senior judge from further action in this matter. Accordingly, it is ORDERED and ADJUDGED that the undersigned hereby recuses from th:[s case. All in-court dates previously set are hereby canceled pending notification from tht:~ judge to whom this matter is newly assigned. All other deadlines remain in effect except as modified by the judge to whom this matter is newly assigned. The clerk is instructed to reassign this case to anotherjudge in this district for all further matters and to immediately inform all parties of the judge to whom the case is reassigned. When considering reassignment, the Clerk of the Court should take into consideration that

Case 9:03-cv-80178-DMM Document 126 Entered on FLSD Docket 11/01/2006 Page 2 of 2
there is a related case currently pending in this district before the Honorable Judge T.K. Hurley, United States v. City of Boca Raton, 06-80879-Civ-Hurley.
DONE AND ORDERED at West Palm Beach, Florida, this "'i:/.day of October, 2006.
cc: counsel of record

 
 Case 9:03-cv-80178-DMM Document 141 Entered on FLSD Docket 12/01/2006 Page 1 of 21
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No: 03-80178-CIV-Middlebrooks/ Johnson
JEFFREY O., et al.,
Plaintiff, vs.
CITY OF BOCA RATON,
Defendant. ___________________________/
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
I. BACKGROUND
By this action, Plaintiffs challenge the legality of the City of Boca Raton’s ("City")
zoning ordinances that separately and in combination ban group housing for people in recovery
from alcohol or drug addiction in residential areas of the City. Plaintiffs, individuals in recovery
from drug and alcohol addiction living together in sober housing ("Individual Plaintiffs") and
providers of housing to people in recovery (together "Boca House"), are protected by the Fair
Housing Act. Because one of an addicts' or alcoholics' worst enemies is being alone, they need
to live together in sober group homes or apartments during the initial phases of their recovery. 1
1 Boca House is part of a continuum of support for people in recovery. While traditional inpatient treatment facilities are critical for detoxification, recovering alcoholics and addicts are most likely to maintain their recovery if they transition from more structured living to more independent living. Group homes ranging from multi-apartment buildings to single family residences are crucial to maximizing recovery. These residential settings, usually in quiet neighborhoods, reduce the temptation to relapse by removing the alcoholics and addicts from triggers such as bars, drinkers, users and areas of drug trafficking. In addition, the social structure of group homes fosters the interdependence that is a large factor in the successful recovery programs of Alcoholics Anonymous and Narcotics Anonymous. See e.g.,Constance Weisner, The Merging of Alcohol and Drug Treatment: A Policy Review, 13 J. PUB. HEALTH POL'Y 66, 67 (1992); David Gates & Deborah Beck, Prevention and Treatment: The Positive Approach to Alcoholism and Drug Dependency, 24 CLEARINGHOUSE REV. 472, 477 (1990); Herbert Kleber, Treatment of Drug Dependence: What Works, 1 INT'L REV. PSYCHIATRY 81, 89 (1989); Margaret Allison, M.A. & Robert L. Hubbard, Ph.D., Drug Abuse Treatment Process: A Review of the Literature, 20 INT'L J. ADDICTIONS 1321, 1325-26 (1985). Without supportive and drug-free living environments, the risk of relapse after discharge from a hospital treatment program is heightened. G.Alan Marlatt & Judith Gordon, Relapse Prevention 402, 404, 456 (1985).

Case 9:03-cv-80178-DMM Document 141 Entered on FLSD Docket 12/01/2006 Page 2 of 21
City ordinance, No. 4649, amended by City ordinance No. 4701 (together "Ordinance 4649"), prohibits housing for persons recovering from drug or alcohol addiction, who agree to drug and alcohol testing, from living in residentially zoned areas of the City.2 A separate ordinance, City Code Section 28-2, prohibits more than three unrelated persons from living together, regardless of the size of the dwelling or the number of bedrooms. When applied together, these ordinances result in a ban of all sober housing for people that agree to drug and alcohol testing as a condition of their tenancies from living in residentially-zoned areas of the City. At a minimum, they would require Boca House to cease offering sober housing and require approximately 400 residents to seek sober housing outside of the City. When read together, the effect of these ordinances is to deny recovering alcoholics and addicts the housing of their choice within the City. As explained below, each provision creates discriminatory zoning schemes for residential housing and facially violates the Fair Housing Act, 42 U.S.C. §3601 et seq. Through Ordinance 4649, the City discriminates against the Plaintiffs and Boca House's residents in the terms, conditions, or privileges in the rental of a dwelling, in violation of 42 U.S.C. 3604(f)(2), by treating recovering persons differently from other residents of the City because of their disability. Through Section 28-2, the City discriminates against these Plaintiffs and Boca House's residents on the basis of disability, in violation of 42 U.S.C. 3604(b), by applying different rules to them in their housing choices than are applied to other residents of the City. Finally, the City refused to make reasonable accommodations to the Plaintiffs, when such accommodations are necessary to affect them the equal opportunity to use and enjoy their dwellings, in violation of 42 U.S.C. 3604(3)(B).
2 This ordinance was enacted at a City Council meeting at which neighbors expressed their disdain for the plaintiffs and made clear their desire to expel them from the City. See Plaintiff’s Statement of Undisputed Facts in Support of Plaintiff’s Partial Motion for Summary Judgment (the "Facts") filed contemporaneously herewith.
2

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II. MEMORANDUM OF LAW A. SUMMARY JUDGMENT STANDARD & SUBSTANTIVE LAW Summary judgment should be granted when "there is no genuine issue as to any material
fact . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). There is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co.v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The mere existence of some factual dispute will not defeat summary judgment, unless the factual dispute is material to an issue affecting the outcome of the case." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Applicable substantive law identifies which facts are material and which are irrelevant. Anderson, 477 U.S. at 248; Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). To defeat a summary judgment motion, the non-movant may not "rest upon the mere allegations or denials" in its pleadings, Fed. R. Civ. P. 56(e), but must demonstrate the existence of facts that could support a jury finding in its favor. Anderson, 477 U.S. at 248-49. Summary judgment should therefore be entered against a party that has failed to produce evidence concerning an element on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321-22 (1986). The governing substantive law here is the Fair Housing Act and cases decided thereunder. Under the Fair Housing Act and related anti-discrimination statutes, laws that single out individuals with disabilities for regulation are facially discriminatory. Larkin v. Michigan Dept. of Social Servs., 89 F.3d 285, 290 (6th Cir. 1996); Bangerter v. Orem, 46 F.3d 1491, 1500-01 (10th Cir. 1995); T.E.P. v. Leavitt, 840 F. Supp. 110 (D. Utah 1993); Children's Alliance v. City of Bellevue, 950 F.Supp. 1491, 1496 (W.D. Wash. 1997).
3

Case 9:03-cv-80178-DMM Document 141 Entered on FLSD Docket 12/01/2006 Page 4 of 21
Once a plaintiff establishes that a statute or ordinance is facially discriminatory, the burden shifts to the governmental defendant to justify the disparate treatment. ARC of N.J. v. N.J., 950 F.Supp. 637, 643 (1996); Horizon House v. Twp. of Upper Southhampton, 804 F.Supp. 683, 693 (E.D. Pa. 1992), aff'd, 995 F.2d 217 (3d Cir.1993); Larkin, 89 F.3d at 290; Marbrunak, Inc. v. City of Stow, Ohio, 974 F.2d 43, 47 (6th Cir.1992); Bangerter, 46 F.3d at 1503-04 (rejecting the rational basis framework because "the FHAA specifically makes the disabled a protected class for purposes of a statutory claim-they are the direct object of the statutory protection-even if they are not a protected class for constitutional purposes"). Thus, unless a defendant can produce evidence to justify the facially challenged ordinance, summary judgment should be entered against it. Celotex Corp., 477 U.S. at 321, 322.3 As set forth below, there are no material issues of disputed fact here, and Plaintiffs are entitled to judgment as a matter of law.
B. ARGUMENT 1. The FHAA
The Fair Housing Amendments Act of 1988 (the "FHAA") establishes that "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. It prohibits discrimination by a public entity against disabled4 persons, and applies to a municipality's zoning decisions. See City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995); Tsombanidis v. W. Haven Fire Dept., 352 F.3d 565, 572 (2d Cir. 2003); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44 (2d
3 The McDonnell Douglas[Corp. v. Green, 411 U.S. 792 (1973)] test is inapplicable to Fair Housing Act challenges to a facially discriminatory law or policy. See Bangerter, 46 F.3d at 1501 n.16 ("There is no need to probe for a potentially discriminatory motive circumstantially, or to apply the burden-shifting approach outlined in McDonnell Douglas ... as the statute discriminates on its face by allowing conditions to be imposed on group housing for the handicapped which would not be permitted for non-handicapped group housing."); Reidt v. County of Trempealeau, 975 F.2d 1336, 1341 (7th Cir. 1992) ("The McDonnell Douglas procedure is inapt in a situation involving a facility discriminatory policy....") 4 The FHAA uses the term "handicap." 42 U.S.C. 3602(h). Plaintiffs will hereinafter use the now preferred term "disability."
4

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Cir.1997); Bangerter, 46 F.3d at 1498 ("the FHAA's prohibitions clearly extend to discriminatory zoning practices"). It is intended to protect the right of individuals to live in the residence of their choice in the community. Marbrunak, 974 F.2d at 45.
Any person "aggrieved" by such a discriminatory practice has a cause of action under the FHAA. See 42 U.S.C. § 3613(a), § 3602(i); Havens Realty Corp. v. Coleman, 455 U.S. 363, 372-73 (1982). The FHAA protects persons who are non-abusing, recovering alcoholics and drug addicts. RECAP v. City of Middletown, 294 F.3d 35, 47-48 (2d Cir. 2002) (finding that the potential clients for a halfway house for recovering alcoholics are disabled under the FHAA because they "are unable to abstain from alcohol abuse without continued care; absent assistance, they cannot adequately care for themselves"); U.S. v. Southern Mgmt. Corp., 955 F.2d 914 (4th Cir. 1992); Samaritan Inns Inc. v. District of Columbia, 114 F.3d 1227 (D.C. Cir. 1997).
The FHAA has "a broad mandate to eliminate discrimination against and equalize housing opportunities for disabled individuals." Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir.1995). In passing the FHAA, Congress recognized that "[t]he right to be free from housing discrimination is essential to the goal of independent living." H.R.Rep. No. 711, 100th Cong., 2nd Sess., at 17 (1985) ("House Report") at 18. To further this goal, the FHAA represents
a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion. Id. In light of the FHAA's broad mandate, courts accord a "generous construction" to its antidiscrimination prescriptions. City of Edmonds, 514 U.S. at 737 n.11 (citation omitted); Samaritan Inns, 114 F.3d at 1234. Applying the FHAA, "courts have consistently invalidated a wide range of municipal licensing, zoning and other regulatory practices affecting persons with
5

Case 9:03-cv-80178-DMM Document 141 Entered on FLSD Docket 12/01/2006 Page 6 of 21
disabilities." Potomac Group Home Corp. v. Montgomery County, 823 F. Supp. 1285, 1294 (D. Md. 1993) (citations omitted).
The FHAA prohibitions were intended to curb land-use restrictions on communal housing opportunities, sometimes called group homes, for disabled individuals. The FHAA was further intended to prohibit exclusionary zoning practices, such as the City's enactment of the challenged ordinances. See House Report, n.21 in §11D:1 at 24; see also 24 CFR 1(A)(I), Preamble II, 54 Fed. Reg. 3246 (Jan. 23, 1989). In fact, the House Judiciary Committee Report states that the FHAA was intended to apply to "state or local land use and health and safety laws, regulations, practices or decisions which discriminate against individuals with handicaps . . . [and] that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices." House Report, n.21 at §11D:1 at 24.
Courts have recognized that zoning restrictions on group homes may make housing unavailable to disabled persons in violation of the FHAA based on three legal theories: (1) Discriminatory intent (i.e., the restriction facially singles out disabled persons or was motivated by the fact that disabled persons would reside in the housing); (2) Discriminatory effect (i.e., the restriction had a disparate impact on disabled persons and was not justified by a substantial governmental interest); and (3) Failure to reasonably accommodate disabled persons (i.e., refusal to afford an accommodation necessary to allow disabled persons equal opportunity to use and enjoy a dwelling). See e.g., Smith & Lee Ass., Inc. v. City of Taylor, Mich., 102 F.3d 781, 790 (6th Cir. 1996). Under the first and third theories, Plaintiffs are entitled to summary judgment because the City has made housing, and specifically Boca House, unavailable to disabled individuals, namely recovering addicts and alcoholics, and refused an accommodation.
2. Ordinance 4649 Ordinance 2649 initially provided that:
6

Case 9:03-cv-80178-DMM Document 141 Entered on FLSD Docket 12/01/2006 Page 7 of 21
Substance Abuse Treatment Facility" shall mean a service provider or facility that is: 1) licensed or required to be licensed pursuant to Section 397.311 (18) Fla. Stat.5 or 2) used for room and board only and in which treatment and rehabilitation activities are provided at locations other than the primary residential facility, whether or not the facilities used for room and board and for treatment and rehabilitation are operated under the auspices of the same provider. For the purposes of this paragraph (2), the following shall be deemed to satisfy the "treatment and rehabilitation activities" component: (a) service providers or facilities which require tenants to participate in treatment and rehabilitation activities as a term or condition of, or essential component of, the tenancy: or (b) service providers or facilities which facilitate, promote, monitor, or maintain records of, tenant participation in treatment and rehabilitation activities, or perform testing to determine whether tenants are drug and alcohol free, or receive reports of results of such testing.
* * *
Section 28-197. Status of Substance Abuse Treatment Facilities.
Any Substance Abuse Treatment Facility that exists as of the effective date of this ordinance must comply with all provisions and requirements of this ordinance no later than eighteen (18) months after its effective date.
* * * Section 28-743. Conditional Uses.
(e) Substance Abuse Treatment Facility, provided that such facilities shall not be located within a radius of 1,000 feet of another existing facility.
Ordinance 4649 was amended following the commencement of this lawsuit to be sure it
would apply to Boca House:6
Substance Abuse Treatment Facility shall mean a service provider or facility that is: 1) licensed or required to be licensed pursuant to Section 397.311 (18). Fla. Stat. or 2) used for room and board only and in which treatment and rehabilitation activities are provided at locations other than the primary residential facility, whether or not the facilities used for room and board and for treatment and rehabilitation are operated under the auspices of the same provider. For the purposes of this paragraph (2), service providers or facilities which require tenants or occupants to participate in treatment and rehabilitation activities, or perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition of, or essential component of, the tenancy or occupancy shall
5 Boca House is not licensed or required to be licensed under Florida Statute Section 397.311. 6 Ordinance 4649 itself, as amended, makes explicitly clear that it was amended as a direct result of the litigation. Specifically, amended ordinance changed the operative date to the later of 18 months after its effective date or 60 days after the conclusion of this litigation.
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be deemed to satisfy the "treatment and rehabilitation activities" component of the definition contained in this section. Under the amended Ordinance, because Boca House performs drug testing to determine "whether tenants or occupants are drug and/or alcohol free," it is classified by the City as a Substance Abuse Treatment Facility.7 For more than 15 years, Boca House has been located and offered sober housing in a residentially zoned area of the City. Because of its new classification under Ordinance 4649, Boca House is subject to the locational requirements, which limit such facilities to the Medical Center or Motel Business zoning districts in the City and prohibits its continued existence in Residential zoning districts. Under Ordinance 4649, any Substance Abuse Treatment Facility, and specifically Boca House, is not permitted to operate in any residential neighborhood in the City and neither the Individual Plaintiffs nor any individual living in a Substance Abuse Treatment Facility is permitted to reside in a residential neighborhood and reside in a sober living facility such as Boca House.
3. Section 28-2 City Code of Ordinances Section 28-2 ("Section 28-2") defines family and restricts the allowable number of persons in each dwelling unit to those comprising a "family": 1 person or a group of 2 or more persons living together and interrelated by bonds of consanguinity, marriage or legal adoption, or a group of persons not more than 3 in number who are not so interrelated, occupying the whole or part of a dwelling as a separate housekeeping unit with a single set of culinary facilities. The persons thus constituting a family may also include gratuitous guests and domestic servants. Any person under the age of 18 years whose legal custody has been awarded to the state department of health and rehabilitative services or to a child-placing agency licenses by the department, or who is otherwise considered to be a foster child under the laws of the state, and who is placed in foster care with a family, shall be deemed to be related to a member of the family for the purposes of this chapter. Nothing herein shall be construed to include any roomer or boarder as a member of a family.
7 Boca House does not, however, provide room and board to its tenants. Boca House is a rental apartment community and not a boarding house.
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Under the City's definition of family, an unlimited number of people who are “interrelated by bonds of consanguinity, marriage or legal adoption” may live together. Conversely, more than three recovering addicts, such as those residing at Boca House and Awakenings, may not.
4. Plaintiffs Are Entitled to Partial Judgment under the FHAA for Injuries and Threatened Injuries Caused by the City's Discriminatory Zoning Laws
The undisputed facts establish that: (1) Ordinance 4649 facially discriminates on the basis of disability; (2) Ordinance 4649 was enacted with discriminatory intent or purpose; (3) the City refused to accommodate Plaintiffs' existing use by allowing it a reasonable accommodation with respect to Ordinance 4649 in the form of grandfathering; (4) Section 28-2 discriminates on the basis of disability; (5) the City refused to accommodate Plaintiffs by allowing four unrelated people with disabilities to reside in sober housing; and (6) the City cannot meet its burden of justifying the facial discrimination of the two ordinances. As a direct result of these discriminatory practices, Plaintiffs have suffered and will suffer damages.
a. Ordinance 4649 facially discriminates on the basis of disability Ordinance 4649 discriminates, on its face, against persons with disabilities. A court must find that a statute facially discriminates against the disabled where the statute's language and structure place different burdens upon individuals with disabilities than upon similarly situated individuals without disabilities. See e.g., Bangerter, 46 F.3d at 1500 ("the [challenged] Act and Ordinance single out the disabled and apply different rules to them. Thus the discriminatory intent and purpose of the Act and Ordinance are apparent on their face."); Marbrunak, 974 F.2d at 46-47 (affirming a finding that a zoning ordinance was facially discriminatory because it applied more stringent requirements on homes for the developmentally disabled than it applied to other single-family residences). When considering whether a statute is facially discriminatory, a court need not consider the motives of the drafters of the statute. See Children's Alliance v. City
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of Bellevue, 950 F. Supp. 1491, 1495 (W.D. Wash. 1997) ("Differential treatment on the face of an ordinance demonstrates an intent to discriminate; additional evidence of discriminatory animus is not required."); Horizon House, 804 F. Supp. at 693 ("The motives of drafters of a facially discriminating ordinance, whether benign or evil, is [sic] irrelevant to a determination of the lawfulness of the ordinance."); see also Int'l Union v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) ("Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination."). Thus, "a plaintiff makes out a prima facie case of intentional discrimination under the FHAA merely by showing that a protected group has been subjected to explicitly differential – i.e. discriminatory – treatment." Bangerter, 46 F.3d at 1501.
Some facially discriminatory laws are easily identifiable because they use the words "handicapped" or "disabled." For example, a law requiring that "group homes for the mentally or physically handicapped" obtain a special permit expressly singles out disabled persons. Id. at 1494, 1500. Other facially discriminatory laws do not use the words "handicapped" or "disabled" but discriminate on their face nonetheless. Community Housing Trust v. Dept. of Consumer and Reg. Affairs, 257 F.Supp.2d 208, 221 (D.D.C. 2003); Children's Alliance v. City of Bellevue, 950 F.Supp. 1491, 1496 (W.D.Wa.1997); Alliance for the Mentally Ill v. City of Naperville, 923 F.Supp. 1057, 1071 (N.D.Ill.1996). For example, while a law that (1) prohibits any new "family care home" from locating within 1000 feet of any existing "family care home" and (2) defines "family care home" as a facility where "permanent care" or "professional supervision" does not use the word "handicap" or "disability," the reach of the law clearly "coincides with the breadth of the definition of 'handicap' under the [FHAA]." Horizon House, 804 F. Supp. at 687-90, 694. For this reason, such a law discriminates on its face against the disabled. Id. That a law "may
10

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incidentally catch within its net some unrelated groups of people without handicaps, such as juveniles or ex-criminal offenders" does not alter this conclusion. Id. (internal citations omitted).
Ordinance 4649 defines "Substance Abuse Treatment Facility" by reference to Florida Statute Section 397.311(18) and encompasses housing that "perform[s] testing to determine whether tenants are drug and alcohol free." By referencing Section 397.311(18), Ordinance 4649 specifically includes providers that offer "substance abuse impairment services" for "clients found to be substance abuse impaired." The definition also includes "[f]acilities that are used for room and board and in which treatment and rehabilitation activities" are provided off-site. Notably, "clients" are defined as "recipients of alcohol or other drug services delivered by a service provider." FLA. STAT. § 397.311(5). Thus, while Ordinance 4649 does not use the words "handicapped" or "disabled," it applies primarily, if not exclusively, to persons in recovery who are disabled, are being treated for a disability, or are regarded as disabled. Its reach, therefore, "coincides with the breadth of the definition of 'handicap' under the [FHAA]." Accordingly, such a law discriminates on its face against the disabled. Id.
The Seventh Circuit followed this approach in finding facial discrimination in McWright v. Alexander, 982 F.2d 222 (7th Cir.1992). The court stated that an employer may not "use a technically neutral classification as a proxy to evade the prohibition of intentional discrimination." Id. at 228. In McWright, the company fired all employees with gray hair and was found to have committed intentional age discrimination:
the "fit" between age and gray hair is sufficiently close that they would form the same basis for invidious classification. Similarly, discrimination "because of" handicap is frequently directed at an effect or manifestation of a handicap rather than being literally aimed at the handicap itself. Thus, a school's exclusion of a service dog has been held to be discrimination "because of" handicap, and no doubt a policy excluding wheelchairs would be such discrimination, even if the stated purpose of the policy were a benign one.
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Id. (internal citation omitted). Although McWright involved the Rehabilitation Act of 1973, Congress intended the FHAA to incorporate "the same definitions and concepts from that wellestablished law." House Report at 17.
By defining Substance Abuse Treatment Facilities as permitted uses in the Medical Center District and conditional uses in the Motel Business District, Ordinance 4649 shuts out Boca House and Awakenings as "Substance Abuse Treatment Facilities," and their residents, from residentially zoned areas. See Facts at ¶¶ 14-19, 30. On its face, Ordinance 4649 commits the City to the position that "facilities which require tenants . . . to participate in treatment and rehabilitation activities, or perform testing to determine whether tenants . . . are drug and/or alcohol free, as a term or condition of, or essential component of, the tenancy or occupancy . . ." must move out of residential areas of the City.
Ordinance 4649 also requires that Substance Abuse Treatment Facilities not be located within 1000 feet of one another. This spacing requirement further exacerbates the exclusionary requirements of Ordinance 4649, and violates the FHAA. Larkin, 89 F.3d at 289-92; U.S. v. City of Chicago Heights, 161 F.Supp.2d 819, 831-46 (N.D. Ill. 2001); Children's Alliance, 950 F. Supp. at 1495-99; Arc of N.J., 950 F. Supp. at 644-46; Horizon House, 804 F. Supp. at 693-700; see also Oconomowoc Residential Progs. v. City of Milwaukee, 300 F.3d 775, 781-88 (7th Cir. 2002) (granting reasonable accommodation from City's application of its spacing requirement to group home, without striking down the requirement in its entirety).
In Larkin, supra, the Sixth Circuit struck down a state's spacing and neighbor-notification requirements that had been used to block an adult foster care facility from operating at a particular residential site. Because these requirements, like the Substance Abuse Treatment Facilities in the City, were explicitly directed at residences for disabled persons, the court held
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that they reflected a discriminatory intent and therefore could only be justified if it was "demonstrate[d] that they are 'warranted by the unique specific needs and abilities of those handicapped persons' to whom the regulations apply." Larkin, 89 F.3d at 289-92. Here, sober housing for individuals in recovery is required to be located outside of any residentially zoned areas, thereby removing protected disabled persons away from the general residential population of the City, and requiring Substance Abuse Treatment Facilities to be 1000 feet from each other, violates the FHAA. The City is creating de facto apartheid for these disabled persons.
b. Even If Ordinance 4649 Did Not Discriminate On Its Face, It Was Enacted With Discriminatory Intent Or Purpose
Even if Ordinance 4649 did not discriminate on its face, it was deliberately targeted at Boca House and its residents. As set forth more fully below, Ordinance 4649 was amended to include drug testing, a known requirement at Boca House, as an activity that would trigger classification as a Substance Abuse Treatment Facility. Quite simply, the facts are indisputable that Ordinance 4649 was enacted with an intentionally discriminatory purpose. The transcript of the May 29, 2002 City Council meeting and the statements made therein reveal the intent behind Ordinance 4649 and the City Council's motivation for Ordinance 4649. Specifically, City residents, City Council members and even the Mayor stated their desire to expel Boca House and its residents from the City. See Facts at ¶ 20-26.8
Discriminatory intent may be inferred from the totality of the circumstances, including the historical background of the decision; the specific sequence of events leading up to the challenged decision; and contemporary statements by members of the decision-making body. RECAP, 294 F.3d at 49 (internal citations omitted, emphases added). Ordinance 4649 was motivated substantially, if not entirely, by the community and Council's perceptions of the
8 The Plaintiffs respectfully request that the Court read the transcript, filed by the City, in its entirety, to see the discriminatory intent exhibited not only by hostile residents, but also by the City Council members. (D.E. 135).
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residents of Boca House, a protected class of disabled individuals. The only facilities that Ordinance 4649 applies to are those, like Boca House, that rent to recovering addicts. No facts support an alternate view, and summary judgment is appropriate.
c. Even If Ordinance 4649 Is Valid On Its Face And Was Enacted Without Discriminatory Intent, the City Refused To Accommodate Plaintiffs' Existing Use by Allowing It a Reasonable Accommodation in the Form of Grandfathering
Discrimination under the FHAA includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped] person[s] equal opportunity to use and enjoy a dwelling." 42 U.S.C. 3604(f)(3)(B). Under the FHAA, demonstration that an accommodation is "necessary" if the desired accommodation will affirmatively enhance a disabled [person's] quality of life by ameliorating the effects of the disability." Oconomowoc, 300 F.3d at 784. Any accommodation requested must be related to the limitation faced by the disabled person or persons. Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 687 (8th Cir.2003) (requiring "a causal connection between the major life activity that is limited and the accommodation sought"). By its nature, a "reasonable" accommodation constitutes "preferential" treatment for persons with disabilities, and that treatment is necessary to achieve the basic equal-opportunity goals created by laws such as the FHAA. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002).
"To prevail on a reasonable accommodation claim, plaintiffs must first provide the governmental entity an opportunity to accommodate them through the entity's established procedures used to adjust the neutral policy in question." Tsombanidis, 352 F.3d at 578. Plaintiffs requested reasonable accommodations from the City. See Facts at ¶ 31. The City did not afford the Plaintiffs any accommodation with respect to Ordinance 4649. Id. at ¶ 32. The housing of the Individual Plaintiff's choice is a sober living facility that fosters a sober,
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recovering community within a residential district. Boca House is an apartment complex catering to disabled individuals who are part of the residential community. Without an accommodation, such as, at a minimum, the grandfathering of Boca House in its existing use, the Individual Plaintiffs and Boca House residents will be denied the opportunity to enjoy the housing of their choice in residential neighborhoods. Id. at 578 citing Smith & Lee, 102 F.3d at 795.
Because Ordinance 4649 specifically targets Boca House and its residents, the lack of an accommodation is further reflects the City's discriminatory intent. Ordinance 4649 serves no other purpose than to ghettoize recovering addicts and force Boca House into particular commercial zones, and any accommodation here would obviate the need for Ordinance 4649. Accordingly, the City is unwilling or unable to offer such an accommodation without repealing Ordinance 4649, or amending it to exempt existing uses.
d. Section 28-2 facially discriminates on the basis of disability Section 28-2 limits the number of unrelated people who live together, but exempts certain unrelated, non-disabled persons from its definition of "family," i.e. foster children, who need not be disabled, and domestic servants. Specifically, the City defines family and restricts the allowable number of persons in each dwelling unit to those comprising a "family." The definition is unlawful. First, it allows an unlimited number of people who are "interrelated by bonds of consanguinity, marriage or legal adoption" to live together regardless of health or safety concerns. Second, it exempts certain people from this definition who are nondisabled: foster children and domestic servants. Thus, under the City’s definition of family, more than three unrelated domestic servants can live with a family "interrelated by bonds of consanguinity, marriage or legal adoption," but more than three unrelated persons with disabilities cannot live together as a family in a group home.
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Central to the sober housing program at Boca House is accountability and companionship to prevent relapse. See Facts at ¶¶ 2, 6, 37. As a result, Boca House typically houses multiple unrelated recovering persons in a two bedroom apartment, and people frequently share a room. See Facts at ¶ 37. This format ensures that no person is or feels alone. Oxford House, Inc. v. Town of Babylon, 819 F.Supp. 1179, 1183 (E.D.N.Y. 1993) ("Recovering alcoholics or drug addicts require a group living arrangement in a residential neighborhood for psychological and emotional support during the recovery process.") For example, a two bedroom apartment at Boca House with two roommates per bedroom9 may have a total of four unrelated persons, thus violating the City’s definition of family. However, "a household with ten siblings, their parents and grandparents, for example could dwell in a house in [the City's] single-family residential zone without offending [the City's family] composition rule." City of Edmonds, 514 U.S. at 737. Nor would a nuclear family of eight or 16 family members related by blood or marriage with five unrelated domestic servants violate the ordinance.
An ordinance which draws a distinction between families and congregate living arrangements among non-related persons with disabilities violates the FHAA because of the burdens placed on the latter but not on the former. See Children’s Alliance, 950 F.Supp. at 1496. A number of courts have concluded that municipalities violate the FHAA when they attempt to prevent or restrict persons with disabilities from living in the single family-zoned homes of their
9 The two-person-per-bedroom arrangement is consistent with HUD’s occupancy policy. See Memorandum from HUD General Counsel Frank Keating to all Regional Counsel regarding "Fair Housing Enforcement Policy: Occupancy Cases," (Mar. 20, 1991) (reprinted at Fair Housing-Fair Lending Rptr. ¶5216, 63 Fed. Reg. 70256-57 (Dec. 28, 1998)). "An occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the [FHAA]." 63 Fed. Reg. at 70256. In 1988, Congress endorsed these standards for familial status cases. See 63 Fed. Reg. 70256-57 (Dec. 18, 1998) (HUD Statement of Policy implementing the requirements of § 589 of the Quality Housing and Work Responsibility Act of 1998, Pub. L. 105-276, 112 Stat. 2461 (Oct. 21, 1998)).
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choice, even when the number of residents exceeds the number of unrelated people permitted to live together under the applicable zoning ordinances. See, e.g., Town of Babylon, 819 F.Supp. at 1179; Oxford House v. Twp. of Cherry Hill, 799 F.Supp. 450 (D.N.J.1992); Oxford House Evergreen v. City of Plainfield, 769 F.Supp. 1329 (D.N.J.1991); Dr. Gertrude A. Barber Center, Inc. v. Peters Twp., 273 F.Supp.2d 643, 651 (W.D.Pa.2003) (application of family-relationship restriction to group home for four unrelated mentally retarded persons violates the FHAA); Oxford House-C v. City of St. Louis, 843 F. Supp. 1556, 1578 (E.D. Mo. 1994), rev'd on other grounds, 77 F.3d 249 (8th Cir. 1996); U.S. v. City of Taylor, 872 F. Supp. 423 (E.D. Mich. 1995), aff'd in part, rev'd in part, 102 F.3d 781 (6th Cir. 1996) (waiver of six-person limit on group home for the elderly to accommodate twelve-person group home). As observed in Tsombanidis:
O[xford House]-JH will not be able to operate in a single-family zoned district of the City; OH-JH residents, unlike a family with seven related members, will not be able to live in any neighborhood with single-family zoning; and recovering alcoholics and drug addicts will be unable to avail themselves of an Oxford House group home in a residential setting in order to enhance their chances of making a full recovery. As recovering alcoholics and drug addicts, the John Doe plaintiffs need to live in a safe, supportive, and drug-and alcohol-free living environment during their recovery period. Thus, the discriminatory impact is substantial. Tsombanidis v. City of West Haven, 180 F.Supp.2d 262, 287 (D. Conn. 2001), aff’d in pertinent part, 352 F.3d 565 (2d Cir. 2003) (internal citation omitted). In Oxford House, Inc. v. Town of Babylon, supra, a town failed in its attempt to use zoning restrictions to evict a group home for recovering alcoholics and drug addicts. The town's definition of "family" for purposes of maintaining a zone for single-family dwellings (which required a relationship by blood or law and excluded transients) was held to be discriminatory under the FHAA. Town of Babylon, 819 F. Supp. at 1179-83. The court found that because recovering addicts require a group living arrangement in a residential neighborhood for
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psychological and emotional support during the recovery process, they are more likely than nonhandicapped individuals to live with unrelated individuals. Id. Among other factors favoring Oxford House was their plan to use already-existing housing, as opposed to new structures that arguably would have been more likely to change the neighborhood's character. Id.
The legislative history of the FHAA states that it "would also apply to state or local land use and health and safety laws, regulations, practices or decisions which discriminate against individuals with handicaps." H.R.Rep. 100-711, App. II-14. While state and local governments have the authority to protect safety and health and to regulate the use of land, that authority has been used to restrict the ability of disabled individuals to live in communities by enacting or imposing restrictions on, among other things, congregate living arrangements among non-related persons with disabilities. Id. Since these are not imposed on families and groups of similar size, the requirements discriminate against persons with disabilities. Id. citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).
While the FHAA contains this exemption for “any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling,” the Supreme Court has limited the exemption to those directed at maximum occupancy restrictions capping the total number of people living in a dwelling to prevent overcrowding. City of Edmonds, 514 U.S. at 734-35. Specifically, the Supreme Court in City of Edmonds held that this exemption applied to "maximum occupancy restrictions" that cap the total number of occupants in order to prevent overcrowding of a dwelling (typically based upon the available floor space, or the number or types of rooms), but that it did not apply to "family composition rules" designed to preserve the family character of a neighborhood based on the composition of a household rather than the total number of occupants living quarters can contain. Id. at 733-34; see also
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Tsombanidis, 129 F.Supp.2d at 150 n.20. In any event, the City bears the burden of establishing that its family definition falls within the exemption. Fair Housing Advocates Ass'n, Inc. v. City of Richmond Heights, Ohio, 209 F.3d 626 (6th Cir. 2000). The City’s definition of family targets only the composition of the house-hold without mention of the number of occupants, based on criteria such as size or floor space, which a dwelling can sustain. Accordingly, the City's definition is not within the exemption and is subject to the FHAA. See Oxford House-C v. City of St. Louis, 77 F.3d at 251.
Further, the ordinance is discriminatory because it imposes conditions on the establishment of group homes for people in recovery housing more than three persons that are not imposed on residences housing an unlimited number of blood- or marriage- related people with five or more unrelated domestic servants who are not disabled. By applying a narrow definition of family, the City has effectively excluded three or more recovering addicts and alcoholics from living together in the residential neighborhoods, and restricted the housing choices of people based on their disabilities. Even the City Manager testified that having six unrelated persons living in a three bedroom apartment would not impose any hardship on the City. See Facts at ¶ 38. The City’s limitations and restrictions on its face violate the FHAA.
e. Even if Section 28-2 is Valid on its Face, the City Refused to Accommodate Plaintiffs by Allowing Four Unrelated People With Disabilities to Reside in Sober Housing
On February 26, 27 and March 8, 2004, Plaintiffs requested an accommodation from 282. See Facts at ¶¶ 39-40. The City did not provide the accommodation. Id. at ¶¶ 41-43.
f. The City cannot meet its burden of justifying the facial discrimination of the two ordinances
In Marbrunak, the court explained that a city "may impose standards [on the disabled] which are different from those to which it subjects the general population, so long as that
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protection is demonstrated to be warranted by the unique and specific needs and abilities of those

handicapped persons." Marbrunak, 974 F.2d at 47. Marbrunak is consistent with the legislative

history of the FHAA, which states that "[g]eneralized perceptions about disabilities and

unfounded speculations about threats to safety are specifically rejected as grounds to justify

exclusion." House Report at 18; see also Potomac Grp. Home Corp. v. Montgomery County,

823 F.Supp. 1285, 1300 (D. Md.1993) (a requirement imposed on handicapped must correlate

"to the actual abilities of the persons upon whom it is imposed").

III. CONCLUSION

The record demonstrates that there are no issues of material fact as to the elements of

Plaintiffs’ claims. The challenged ordinances discriminate on their faces or as applied on the

basis of disability. Accordingly, summary judgment in favor of Plaintiffs on these claims is

appropriate.

Dated: December 1, 2006

Respectfully submitted,

/s/ William K. Hill William K. Hill, P.A. Melissa Pallett Vásquez BILZIN SUMBERG BAENA PRICE & AXELROD LLP 200 South Biscayne Boulevard, Suite 2500 Miami, FL 33131 Tel. 305-350-7202 Fax 305-351-2216

COUNSEL FOR REGENCY PROPERTIES OF BOCA RATON, INC. AND AWAKENINGS OF FLORIDA, INC.

and

James K. Green, Esq. JAMES K. GREEN, P.A. Suite 1650, Esperante 222 Lakeview Ave.

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West Palm Beach, FL 33401 Florida Bar No: 229466 Tel. 561-659-2029 Fax 561-655-1357 Cooperating Attorney for the AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF FLORIDA, INC. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via EMail (by agreement) this 1st day of December, 2006 on: Nancy Langworthy, Esq. United States Department of Justice, Housing & Civil Enforcement Section 1800 "G" Street, N.W., Suite 7002 Washington, D.C. 20006 Jamie Alan Cole Matthew H. Mandel Weiss Serota Helfman Pastoriza Cole & Boniske, P.A. 200 East Broward Blvd., Suite 1900 Fort Lauderdale, FL 33301 Diana Grub Frieser City Attorney City of Boca Raton 201 W. Palmetto Park Road Boca Raton, FL 33432
By: /s/ William K. Hill_____________ William K. Hill, P.A.
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 Case 9:03-cv-80178-DMM Document 150 Entered on FLSD Docket 12/20/2006 Page 1 of 29

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

JEFFREY O., et al.,

Plaintiffs,

CASE NO. 03-80178-CIV-Middlebrooks

v.

Magistrate Judge Johnson

CITY OF BOCA RATON,

Defendant. _____________________/

CITY OF BOCA RATON’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (AND IN FAVOR OF CITY’S CROSS-MOTION)

Defendant, the City of Boca Raton (the “City”), submits the following memorandum in opposition to the Plaintiffs’ Motion for Partial Summary Judgment [DE 140], including Plaintiffs’ Memorandum of Law in Support of Motion for Partial Summary Judgment (“Plaintiffs’ Memorandum”) [DE 141] filed by the Plaintiffs, Bobby Hoover, Todd Conroy, Doug Byers, and Matthew Wolf (collectively, the “Individual Plaintiffs”), Regency Properties of Boca Raton, Inc. (“Boca House”) and Awakenings of Florida, Inc. (“Awakenings”)(Boca House and Awakenings will be collectively referred to as the “Corporate Plaintiffs”), and in support of the City’s Cross-Motion for Summary Judgment, and states: I. OVERVIEW
The Plaintiffs’ Motion for Partial Summary Judgment (the “Motion”) is wholly reliant upon three premises: (1) that the individual plaintiffs (and the other participants in the Corporate Plaintiffs’ recovery program) are “disabled” and “handicapped,” (2) that the City’s Zoning Code bans recovering substance abusers from living in all residentially zoned area of the City, and (3) that the Corporate Plaintiffs’ facilities are similar to apartment buildings and should be treated the same. Each of these premises is fundamentally flawed.
First, the Individual Plaintiffs (and all of the participants in the recovery program) concededly are not substantially impaired in any major life activities – they all testified that they can do anything that any other person can do. Thus, they do not meet the definition of “handicapped” and “disabled.”

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Second, the City’s Zoning Code allows recovering substance abusers to live anywhere in the City that they would like – they can live in any single family home or apartment that they choose. If they desire to live in a sober or more structured environment, they can do that as well. Up to three unrelated persons per unit may live in any home or apartment unit (so long as there is no treatment or drug testing), or they can live in a licensed “community residential home” with up to six people in single family neighborhoods and fourteen people in multi-family neighborhoods. “Community residential homes” may have more than three unrelated persons per unit, provide treatment and drug test. If persons desire to live in a very large substance abuse treatment facility, that is available as well, provided it is located in the appropriate medical or RB-1 zoning districts (which have compatible uses).
Third, the for-profit, Corporate Plaintiffs’ facilities are substantially different than standard apartment buildings because, in addition to housing, they also provide the participants with a “unique recovery program,” consisting of, among other things: on-site individual therapy sessions (from “affiliated” therapists paid through the Corporate Plaintiffs), on-site morning meetings and life skills meetings (organized and run by staff and/or independent contractors paid by the Corporate Plaintiffs), on-site AA/NA meetings, mandatory drug testing, mandatory medication storage by staff, a three-phase progression program, strict curfews, a ban on overnight guests, mandatory daily room inspections by staff, a money retention program, immediate discharge and forfeiture of deposit and last week’s rent for using drugs or alcohol (notwithstanding Florida’s landlord-tenant law), as well as many other strict rules. If these facilities were simply furnishing housing to recovering substance abusers, they would be treated the same as “apartment buildings” and would be allowed in multifamily zoned districts. The “unique recovery program,” however, differentiates these facilities from normal apartment buildings. Thus, the City may treat these different uses differently, not because it is discriminating against anyone, but merely because the facilities are not “similarly situated” to standard apartment buildings.
For these and the other reasons set forth below, the Plaintiffs’ Motion for Partial Summary Judgment should be denied, and the City’s Cross-Motion for Partial Summary Judgment should be granted.
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II. BACKGROUND This case concerns unlicensed1 mega-sober houses operated by the Corporate Plaintiffs in
the City’s multi-family residential districts. These facilities are not residential in nature –
instead, they are medical and commercial operations that warehouse and institutionalize, rather than mainstream, recovering addicts.2 The City’s Zoning Code, consistent with the purpose of
all zoning codes, seeks to group compatible uses and segregate incompatible uses. Accordingly,
operations of these non-residential facilities (so long as they continue to be medical and
commercial in nature) are only permitted in appropriate zoning categories.
A. The City’s Zoning Code Provides Substantial Housing Opportunities to Recovering Substance Abusers
Contrary to Plaintiffs’ characterization, the City’s Zoning Code provides substantial housing opportunities for recovering addicts to live in the City.3 The City’s Code does not
1 In 2002, the Corporate Plaintiffs exchanged various letters with the Department of Children & Families as to whether they were required to be licensed. DCF ultimately stated that Boca House and Awakenings did not need to be licensed, based only on the representations that were made to it that the Corporate Plaintiffs had no involvement with scheduling and payment for individual therapy, that no referrals were made, that attendance at Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”) meetings was voluntary, that on-site meetings were facilitated by residents rather than staff, and that phases of treatment would not be used. See Part I, at ¶5, City’s “Statement of Facts in Opposition to Plaintiffs’ Motion for Partial Summary Judgment (and in Favor of Cross-Motion)” (to be cited as “City’s Facts, Part __, ¶__”). These representations are not true. See, City’s Facts, Part II, at ¶¶ 1-21, and citations therein.
2 This is contrary to the salutary purpose of the Fair Housing Amendments Act (“FHAA”) is to ensure that the disabled are not excluded from the American mainstream in housing opportunities. See, e.g., Lapid-Laurel, L.L.C. v. Township of Scotch Plains, 284 F.3d 442 (3rd 2002); Smith & Lee Associates, Inc. v. City of Taylor, 102 F.3d 781 (6th Cir. 1996); Bangerter v. Orem City Corp., 46 F.3d 1491 (10th Cir. 1995).
3 The ordinance herein, Ordinance No. 4649, and as amended by Ordinance No. 4701 (attached as Exhibits “1” and “2”)(“Ordinance No. 4649”) is modeled on State legislation designed to support recovering addicts and enhance the availability of positive housing environments conducive to their recovery. See, Florida Statutes § 397.311. Additionally, the definition of “family” in Section 28-2 of the City’s Zoning Code (“City Code”), of which the Plaintiffs also complain, is superseded in its application to disabled persons by the housing opportunities available through “community residential homes,” whereby unrelated residents of licensed homes in groups of up to 14 persons are deemed to be the equivalent of a “family” for zoning purposes. See, Section 28-1304, City Code, attached hereto as Exhibit “3.” These provisions, also modeled on State legislation, are designed to support the “mainstreaming” of disabled persons into residential communities. See, § 419.001, Florida Statutes.
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prohibit recovering substance abusers from living in any residential district that they desire or in any single family home or apartment. If they desire to live in a sober environment, they can do that as well. Up to three unrelated persons per unit may live in any home or apartment unit (so long as there is no treatment or drug testing). The owner of an apartment building may operate an apartment building in a multi-family district that is rented only to recovering substance abusers – so long as it is limited to residential uses (no treatment, drug testing, mandatory meetings, etc.). If they desire to live in a more structured environment, that is also available. Recovering substance abusers can choose to live in a licensed “community residential home”4 with up to six people in single family neighborhoods and fourteen people in multi-family neighborhoods. “Community residential homes” may have more than three unrelated persons, may provide treatment and may drug test. This, effectively, gives recovering substance abusers more options than the general population (who would not be able to have more than 3 unrelated people per unit and could not have treatment or drug testing in residential neighborhoods). Finally, if a recovering substance abuser desires to live in a very large substance abuse treatment facility, that option is available as well, provided it is located in the appropriate medical or RB-1 zoning districts (which have compatible uses).
“Substance abuse treatment facilities” are subject to the same fundamental zoning principles that are imposed on other facilities: large scale, commercial/medical uses are not permitted uses in any of the City’s residential districts. Pursuant to Ordinance No. 4649, if a facility provides both housing and a recovery program, the City classifies these uses as commercial and medical, rather than residential. See Ex. “1” and “2.” Accordingly, they may be located in a medical district (MC) or in a commercial district (Motel-Business R-B-1), where they exist with other facilities sharing these same characteristics.5
B. The Fair Housing Amendments Act Did Not Abolish Local Zoning Codes The FHAA is a “clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream.” ARC of New Jersey, Inc. v. State of New Jersey, 950 F. Supp. 637, 642 (3d Cir. 1996), citing Helen L. v. DiDario, 46 F.3d
4 “In addition, Community Residential Homes are defined in and regulated by Section 28-1304, City Code and Section 419.001, Florida Statutes, and therefore are not Substance Abuse Treatment Facilities.” See Ordinance No. 4649.
5 See Sections 28-743 (R-B-1); 28-922 (MC), City Code, attached as Exhibits “4” and “5.” 4

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325, 333 n. 14 (3d Cir.) (quoting H.R. Rep. No. 711, 100th Cong., 2d Sess. 18 (1988)). “In enacting the FHAA, Congress clearly did not contemplate abandoning the deference that courts have traditionally shown to … local zoning codes” nor to give the disabled “carte blanche to determine where and how they would live regardless of zoning ordinances to the contrary.” Bryant Woods Inn, Inc. v. Howard County, Maryland, 124 F.3d 597 (4th Cir. 1997). As the United States Supreme Court in City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. 1776 (1995) has stated:
Land-use restrictions designate “districts in which only compatibles uses are allowed and incompatible uses are excluded.” [Citations omitted.] These restrictions typically categorize uses as single-family residential, multiple-family residential, commercial or industrial. [Citations omitted.] Land use restrictions aim to prevent problems caused by the “pig in the parlor instead of the barnyard. Village of Euclid v. Ambler Realty Co., 272 U.S.365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926). 6 This case involves compatible and incompatible uses, not discrimination against disabled, recovering addicts. The FHAA should not be cast “in the unlikely role of an engine for the destruction of zoning. Zoning may be good or bad, but the FHAA is not the charter of its abolition.” Hemisphere Building Company, Inc. v. Village of Richton Park, 171 F.3d 437, 440 (7th Cir. 1999). In order for zoning to discriminate against the handicapped, it must hurt handicapped people “by reason of their handicap, not by virtue of what they have in common with other people….” Hemisphere, 171 F.3d at 440 (emphasis by italics in original). This interplay between traditional zoning functions and the FHAA is evident in the terms of the FHAA itself. The FHAA declares it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such a dwelling, because of a handicap….” 42 U.S.C. §3604(f)(2). See Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170, 178 (3d Cir. 2005). In order for a policy to be discriminatory under the FHAA, the disabled status - the protected trait - must be “used as the basis for different treatment.” Id. (emphasis in original). Where, as here, zoning ordinance addresses compatible and incompatible uses which are applied to the disabled and non-disabled alike, that ordinance does not discriminate on the basis of a disability.
6 Unless otherwise noted, emphasis is added throughout this memorandum.
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In Hemisphere, supra, the Seventh Circuit upheld the municipality’s denial of a developer’s request for a zoning change that would have allowed the developer to build multiunit residences designed to meet the needs of wheel-chair bound handicapped persons in a single-family district, and to further exceed the municipality’s density requirements for multifamily districts. The developer contended that the interest at stake was that of handicapped people in being able to obtain suitable housing at the lowest possible price. The court rejected this argument. It reasoned: “…[A] zoning ordinance that merely raises the cost of housing hurts everyone who would prefer to pay less and forgo whatever benefits the higher cost confers, and so need not be waived for the handicapped.” 171 F.3d at 440. The court concluded that the zoning requirements at issue did not discriminate in violation of the FHAA, in that the zoning did not hurt the disabled by reason of the disability, but “by virtue of what they have in common with other people.” Id.
Similarly, where an owner of group homes for the disabled failed to extend water and sewage lines to the edge of its property line, as required, and the municipality accordingly shut off the water supply, the owner’s challenge to the municipality’s action under the FHAA was rejected. Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557 (7th Cir. 2003). As the Seventh Circuit explained,
The city did not deny developmentally disabled adults the opportunity for group living. The city denied water to a certain lot, and because that lot has no water it cannot be inhabited by Good Shepherd’s residents, or by anyone else for that matter. These developmentally disabled adults are no differently affected by the lack of water than any other resident would have been…. Cutting off water prevents anyone from living in a dwelling, not just handicapped people, and therefore the prohibitions found in the FHAA…do not apply in this case. Good Shepherd, 323 F.3d at 562. As described in Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170, 178-179 (3d Cir. 2005), a case discussed more fully below, a rule that prohibits seeing-eye dogs discriminates against the blind by “proxy.” However, a rule that requires all domesticated dogs to be vaccinated does not discriminate “because of” a disability, even though a seeing-eye dog would fall subject to the requirement. Thus, the purpose of the FHAA is to “prohibit []local governments from applying land use restrictions in a manner that will…give disabled people less opportunity to live in certain neighborhoods than people without disabilities.” Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557 (7th Cir. 2003), citing Oconomowoc Residential Programs, Inc. v.
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City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002), quoting Smith & Lee Associates v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996). It does not mean, however, that handicapped facilities are afforded “carte blanche” when it comes to zoning principles that apply across the board to non-disabled and disabled alike. III. Plaintiffs Lack Standing Because they are not “Disabled” or “Handicapped”
As a threshold matter, Plaintiffs fail to establish that they have standing under the FHAA (or ADA). Accordingly, the City has moved for summary judgment as to the claims in Counts I to VI and Counts VIII to XII. The City reasserts these grounds herein, and refers the Court to its pending Motion for Partial Summary Judgment and accompanying papers. See [DE 110, 111 and 130].7 IV. Summary Judgment Should be Entered in Favor of the City, not Plaintiffs, as to the
Plaintiffs’ Claim That Ordinance No. 4649 is Facially Invalid under the FHAA (Count I) and the ADA (Count IV) The Plaintiffs seek summary judgment on Count I of the Third Amended Complaint on the theory that Ordinance No. 4649 is “facially invalid” – that, on its face, it treats “disabled” recovering substance abusers differently than “similarly situated individuals without disabilities” because of their alleged disability (also referred to as “disparate treatment”). See Plaintiffs’ Memorandum, p.9. Ordinance No. 4649, however, does not discriminate “because of” a disability. It prohibits only large scale commercial and medical uses in residential locations — uses that are NOT otherwise permitted in residential districts to the non-disabled. See, Code, Art. IX and Art. X.
7 Plaintiffs filed declarations of three residents in support of their Motion for Summary Judgment. These self-serving declarations appear to attempt to demonstrate an inability by these three residents to perform certain activities (none of which are “major life activities”). The City immediately sought to depose these three individuals. One (Frank Jichetti) has been withdrawn by the Plaintiffs. The other two are set for deposition after the extended deadline for the filing of this Response. Accordingly, the City has not yet been able to test the validity of the assertions contained in the affidavits. Interestingly, the Corporate Plaintiffs’ executive director testified that he knew each of the three new declarants (who were never previously disclosed) and that they are each able to do everything that non-substance abusers can do. City’s Facts, Part II, ¶25. Thus, once again, the testimony establishes that the Corporate Plaintiffs’ residents are not substantially limited in their major life activities.
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A. Plaintiffs Fail to Make Out a Prima Facie Case That Ordinance No. 4649 Facially Discriminates in Violation of the FHAA and ADA
“In order to make out a prima facie violation of the FHA under a disparate treatment theory, a plaintiff needs to show that the defendant expressly treats members of a protected group differently than others who are similarly situated.” Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491, 1495 (W.D. Wash. 1997)(regarding differential treatment on the face of an ordinance). “A case of disparate treatment may be established against a public entity by demonstrating that a given legislative provision discriminates against the handicapped on its face, i.e. applies different rules to the disabled than are applied to others.” ARC of New Jersey, Inc. v. State of New Jersey, 950 F. Supp. 637, 643 (D.N.J. 1996). See also, Bangerter v. Orem City Corp., 46 F.3d 1491,1501 (10th Cir. 1995) (a prima facie case of facial discrimination is made out by showing “that a protected group has been subjected to explicitly differential—i.e. discriminatory—treatment”); Community House, Inc. v. City of Boise, 2006 WL 3231393 (9th Cir. Nov. 9, 2006) (“The men-only policy is facially discriminatory because it explicitly treats women and families different from men.”) That Plaintiffs fail to meet their burden of making out a prima facie case in this case is evident: Ordinance No. 4649 does not apply different rules to recovering addicts than the City’s Zoning Code applies to ordinary residents (in fact, Ordinance No. 4649 does not apply any rules to individuals, rather it merely sets appropriate locations for commercial uses). Accordingly, the Court should enter summary judgment in favor of the City on Count I of Plaintiffs’ Third Amended Complaint, and based upon the same reasoning, Count IV (the parallel count for facially invalidity under the ADA).
1. Location of “Substance Abuse Treatment Facilities” in medical or commercial districts
As set forth above, Ordinance No. 4649 permits non-licensed facilities that do not condition occupancy on drug-testing or participation in rehabilitation or treatment activities to locate in residential districts. Additionally, Ordinance No. 4649 in fact permits these medical and commercial uses in residential districts, provided that the facility is licensed as a “community residential home.” Furthermore, a recovering addict wishing to live in a large group setting in a residential district is free to do so under Ordinance No. 4649, as long as no commercial and medical uses occur on the property as a condition of occupancy.
Thus, of the housing options available to recovering addicts under the City’s Code, only “substance abuse treatment facilities,” as defined, are located in an MC district as a permitted
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use, along with, inter alia, doctors offices, hospitals, convalescent homes, nursing homes,

interim care facilities, outpatient surgical centers, medical and dental laboratories and testing

facilities, and adult congregate living facilities. See Section 28-922, City Code. Additionally, of

the housing options available to recovering addicts, only “substance abuse treatment facilities”

are located (alternatively) in an R-B-1 district as a conditional use, along with other conditional

uses in such districts, including hotels, motels and tourist homes. See Section 28-743, City Code.

Thus, the classification of “substance abuse treatment facilities” as permitted uses in MC

districts and conditional uses in R-B-1 districts are not classifications “because of a disability”

under the FHAA. Rather, the classification of “substance abuse treatment facilities” is a

classification based on the medical or commercial characteristics of what is in the first instance

only one of several types of housing available to the recovering addict. Moreover, “substance

abuse treatment facilities” themselves are not singled out for discriminatory treatment, but rather,

are grouped with numerous other facilities that share common characteristics.

Plaintiff’s claim is wholly dependent upon the premise that its facilities are “similarly

situated” to apartment buildings, and thus must be treated the same. That is simply not true. As

Louis Agudo, the Executive Director of Boca House and Awakenings has admitted in his

deposition, Boca House and Awakenings are not ordinary apartment buildings. See City’s Facts,

Part II, ¶2. Thus, the characteristics of Boca House and Awakenings differ fundamentally from

those of apartment buildings, because among other things:

Characteristic

Boca House/Awakenings Apartment Building

On-site individual therapy

Yes

No

On-site AA/NA meetings; Yes

No

morning meetings; life skills

meetings; and community

meetings, run by staff

members

Mandatory drug screening

Yes

No

Three phase treatment Yes

No

progression

Weekly payment of “rent,” Yes

No

paying for additional services

Strict rules, regulations and Yes

No

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enforcement, including ban on overnight guests and strict curfews

Mandatory daily room Yes

No

inspections

Immediate discharge and Yes

No

forfeiture of deposit and last

week’s rent for drug or

alcohol use

See, City’s Facts, Part II, ¶¶1-21. In addition to the foregoing, a large office use is also taking place at the “main” Boca
House property (321-341 West Camino Real). This office use comprises four offices and a conference room, totaling approximately 2,000 square feet. Approximately twelve employees work out of the offices, from which Mr. Manko operates not only the corporate plaintiffs, but also all of his real estate investments. City’s Facts, Part II, ¶21. This is not merely an “accessory use” to the residential use taking place at the property (as would be allowed for any apartment). It is a separate use because of its size and because it is not limited to operations of the specific property on which it is located.
Ordinance No. 4649 is not facially discriminatory. Instead, Ordinance No. 4649 situates “substance abuse treatment facilities” in medical and commercial districts based on nondiscriminatory characteristics that substance abuse treatment facilities do not share with typical residences, but share with other facilities that are also located in those districts.
In this regard, the instant case is analogous to Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170 (3d Cir. 2005). In Wind Gap, the Third Circuit held that the classification of a group home as a “commercial” entity rather than as a “residential” entity for purposes of the charging of increased sewer fees was not facially invalid and did not run afoul of the FHAA. At issue in that case were regulations governing sewage services, whereby recipients of the services were classified as either a “residential unit” or as a “commercial unit.” The commercial category assessed variable rates depending upon the unit’s sub-classification as “house, apartment, or condominium,” “trailer,” “hotel, nursing home, personal care home, or boarding house….” and so forth. The group home was considered a “personal care home” under the classification scheme. The court held, inter alia, that the classification did not discriminate
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“because of a handicap.” Rather than “single out” “personal care homes” for discriminatory treatment, the classification instead served to group “personal care homes” with other facilities that shared common characteristics. The Wind Gap court explained:
In the instant matter…the classification of the many facilities subject to increased fees and burdens associated with the sewer service—the alleged discrimination— was broad-based, with different sewer charges assessed against numerous different types of facilities based on whether they were deemed “residential” or “commercial.” The term “personal care home”—the alleged proxy for disabled status—was not used to “single out” facilities for assessment of increased fees. Rather, the term was included in an illustrative list of a number of different types of facilities used to encompass what the Authority deemed to be “commercial” for the purpose of assessing fees. Further, far from being singled out, “personal care home” was grouped with other multi-adult rooming facilities in a subset of the “commercial” list. This subset included “hotels,” “motels,” “nursing homes,” and “boarding houses” the common characteristic of which appears to be that all such facilities provide room and boarding services. Given that the facilities in this group typically charge a fee for the provision of these services, the logical inference is that “personal care homes” fit within this subset of the “commercial” category because “personal care homes” typically board adults and have a “commercial” quality. Wind Gap, 421 F.3d at 181.
In this case, Ordinance No. 4649 is not facially invalid because it merely locates those facilities which are commercial and medical in nature in zoning districts with other similarly situated commercial or medical facilities. Furthermore, the operations of Boca House and Awakenings differ substantially from typical apartment houses permitted in multi-family districts: commercial activities, treatment services, and far-reaching office operations materially distinguish Boca House and Awakenings from typical residential uses.
2. 1,000 foot spacing requirement for a “substance abuse treatment facility” that is a conditional use in an R-B-1 district
In addition to the district requirements of Ordinance No. 4649, the ordinance imposes a very narrowly drawn dispersal requirement that applies only to a “substance abuse treatment facility” that is located in an R-B-1 district, and prohibits the location of one such “substance abuse treatment facility” within 1,000 feet of another in that district. Notwithstanding the Plaintiffs’ mischaracterization, only “substance abuse treatment facilities” which locate within an R-B-1 district that are subject to this rule. “Substance abuse treatment facilities” that locate in an MC district as a permitted use are not subject to this requirement.
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Plaintiffs falsely analogize this narrowly drawn dispersal requirement in a commercially zoned district with dispersal requirements in reported cases that reach small scale group housing available to the disabled persons in residential areas. In this case, the narrowly drawn spacing requirement for “substance abuse treatment facilities” is not facially invalid, in that it concerns only those “substance abuse treatment facilities” located in an R-B-1 district. It does not reach the broader housing opportunities that are available to recovering addicts in residential settings.
B. Ordinance No. 4649 Is Otherwise Justified Even if Ordinance No. 4649 were facially invalid, facial invalidity in itself does not render the Ordinance discriminatory under the FHAA. “If a Title VII plaintiff establishes that a statute or ordinance is facially discriminatory, the burden shifts to the governmental defendant to justify the disparate treatment.” ARC of New Jersey, Inc. v. New Jersey, 950 F.Supp.637, 643 (D.N.J. 1996). There is no Eleventh Circuit case that discusses the standard that such justification is required to meet.8 The Eighth Circuit applies rational basis scrutiny to ordinances that are found to be facially invalid under the FHAA in the first instance. See, Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996); Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d 91 (8th Cir. 1991). Under this standard, a facially invalid statute will be upheld if it is rationally related to a legitimate government purpose. Family Style, 923 F.2d at 94. In Bangerter v. Orem City Corp., 46 F.3d 1491 (10th Cir. 1995), the Tenth Circuit disagreed, and instead considered two justifications: public safety and benign discrimination. Recognizing that the FHAA itself expressly allows discrimination rooted in public safety concerns in 42 U.S.C. §3604(f)(9), the court read the FHAA as permitting restrictions “when justified by public safety concerns, given that housing can be denied altogether for those same reasons,” provided that such safety concerns are narrow and not “based on blanket stereotypes about the handicapped, but…tailored to particularized concerns about individual residents.”
8 In Elliott v. City of Athens, 960 F.2d 975 (11th Cir. 1992), the court held that the FHAA did not apply to a city zoning ordinance permitting a maximum occupancy of four unrelated individuals to occupy a dwelling, owing to the exemption found in the FHAA for maximum occupancy requirements. This holding was overruled in City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. 1776 (1995), which held that family composition rules do not constitute maximum occupancy requirements. The Eleventh Circuit in Elliott specified that its holding did not reach “the precise contours of the proof which a plaintiff must adduce in order to establish a violation….” 960 F.2d at 979, fn. 5. The Eleventh Circuit has not yet reached this issue.
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Bangerter, 46 F.3d at 1503. Further, if a special requirement is imposed upon housing for the disabled “based on concerns for the protection of the disabled themselves or the community,” it must be “individualiz[ed] to the needs or abilities of particular kinds of developmental disabilities” and must have a “necessary correlation to the actual abilities of the persons upon whom it is imposed.” Bangerter, 46 F.3d at 1503 (citations omitted). See also, Larkin v. State of Michigan, 89 F.3d 285 (6th Cir. 1996) (echoing the Tenth Circuit, and requiring that special restrictions imposed on the disabled be warranted by the unique and specific needs of the handicapped).
In this case, Ordinance No. 4649 does not impose special requirements on the residents of “substance abuse treatment centers,” such as special fire and safety regulations or supervision requirements. Cf. Marbrunak, Inc. v. City of Stow, Ohio, 974 F.2d 43 (6th Cir. 1992) (requiring extensive safety protections for single-family home housing developmentally disabled persons, without individualized requirements to particular kinds of disabilities at issue); Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491 (W.D. Wash. 1997)(prohibition against shortterm residency and requirement of live-in staff at group home for youths). As explained, the Ordinance is facially neutral because it merely locates “substance abuse treatment centers” in districts with compatible uses. However, assuming arguendo that Ordinance No. 4649 is facially discriminatory, whether the Eighth Circuit test, or the tests of either the Tenth or Sixth Circuit are applied, Ordinance No. 4649 is justified.
The case of Familystyle, supra, is factually similar to this case. There, the court considered a commercially operated “campus of group homes,” comprised of twenty-one houses in a one and a half block area, housing 119 mentally ill persons. A city ordinance and state law required quarter mile dispersal. Recognizing that the aim of the state law and local ordinance was to integrate the mentally ill into mainstream society, the court held that the restrictions did not run afoul of the FHAA. The court further found that the large scale treatment facility in question was “counterproductive to the desegregation of the mentally ill.” Family Style, 923 F.2d at 94. While the Eighth Circuit in Familystyle applied a rational basis test, it must be noted that the Sixth Circuit, which rejects this standard, expressly highlighted the result in Familystyle. In Larkin, the court considered a law imposing a dispersal and neighbor notification requirement upon the licensure of a four-person group home. The Larkin court stated:
However, Familystyle is distinguishable from the present case. In Familystyle, the plaintiff already housed 119 disabled individuals within a few city blocks. The
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courts were concerned that plaintiffs were simply recreating an institutionalized setting in the community, rather than deinstitutionalizing the disabled.
Here, however, Larkin seeks only to house four disabled individuals in a home which happens to be less than 1500 feet from another AFC facility. The proposed AFC facility, and many more like it that are prohibited by the spacing requirement, do not threaten Michigan’s professed goal of deinstitutionalization. Because it sweeps in the vast majority of AFC facilities which do not seek to recreate an institutional setting, the spacing requirement is too broad, and is not tailored to the specific needs of the handicapped. Larkin, 8f F.3d at 291-292. In this case, Boca House and Awakenings, unlike the plaintiff in Larkin (and just like the plaintiff Familystyle) provide housing to approximately 300 male residents (Boca House) and 90 female residents (Awakenings) in fourteen buildings, grouped into three complexes (for each of three phases of housing and treatment) within ¼ mile of each other. City’s Facts, Part II, ¶3. Under either the Familystyle or Larkin standard, this clustering does not serve the purpose of integrating recovering addicts into the residential community in which they are presently located. Instead, Boca House and Awakenings “recreate an institutional setting” rather than “deinstitutionalizing” the recovering addicts - the very antithesis of the goal of the FHAA. City’s Facts, Part II, ¶40. Moreover, Ordinance No. 4649 is justified by specific “public safety concerns” that are not “based on stereotypes” about the recovering addicts who reside in Boca House and Awakenings. See, Bangerter, supra. For the year spanning November, 2001 to November, 2002, there were in excess of 350 police calls to Boca House and Awakenings combined. City’s Facts, Part II, ¶22; see also, Transcript of May 29, 2002 Hearing (“Hearing Transcript”), passim, which has been previously filed [DE 135]. C. Ordinance No. 4649 Was Not Enacted With A Discriminatory Purpose Plaintiffs baldly assert, “Quite simply, the facts are indisputable that Ordinance No. 4649 was enacted with an intentionally discriminatory purpose.” Plaintiffs’ Memorandum at p.13. This assertion does not even articulate a basis for Plaintiffs’ intentional discrimination claim, much less satisfy a summary judgment standard. Claims for intentional discrimination are analyzed under the burden-shifting analysis established for employment discrimination cases. See, e.g., Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 39 (2d Cir. 2002). “To establish a
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prima facie case of intentional discrimination, the plaintiffs must present evidence that ‘animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.’” Id. (citations omitted). If the plaintiffs make out a prima facie case, the burden shifts to the defendants to provide a legitimate, nondiscriminatory reason for their decision. Id. The plaintiffs must then prove that the defendants in fact intentionally discriminated against them on a prohibited ground. Id.
In this case, the Plaintiffs fail to make out even a prima facie case of discrimination. As proof of their claim, Plaintiffs rely primarily on a narrow grouping of selective statements made by a few City residents at the City Council Meeting on May 29, 2002. There is no evidence, however, that the Ordinance was ultimately passed by the City Council on the basis of these comments, much less that any discriminatory animus on the part of the resident speakers was a “significant factor” in the City Council’s vote. See City’s Facts, Part II, ¶43 (and declarations cited therein). The intent of Ordinance No. 4649 is to group together compatible uses, and segregate non-compatible uses. Id. The Council officially stated its intent when it amended Ordinance No. 4649:
Whereas, Ordinance No. 4649 was adopted to establish local regulations for Substance Abuse Treatment Facilities consistent with state legislation, and did not, nor did it intend to, discriminate against any individuals recovering from substance abuse, and did not, nor did it intend to, violate any state or federal laws, including the Americans with Disabilities Act and the Fair Housing Act…. The public hearing itself was in no way a “mob mentality” type of hearing. City’s Facts, Part II, ¶44. Of course, Florida law required that the hearing be held and that members of the public be permitted to speak. See, § 166.041, Florida Statutes. However, despite public notice, very few people attended the meeting. Id. Only eighteen people spoke. See, Hearing Transcript, passim. No one was holding signs or wearing specially made shirts, as often happens in public hearings on highly charged issues. Rather, the hearing was rather tame. Id. The hearing began, as is customary, with a brief staff presentation that simply explained the nature of the ordinance in a wholly neutral fashion. See, Hearing Transcript, pp.2-4. All persons wishing to speak at the meeting were permitted to do so, including several speakers who opposed the enactment of the Ordinance, including: Ronda Gluck, Esq. who spoke on behalf of her client, Alternatives in Treatment, a substance abuse treatment facility; Cara Sansonia, a
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resident; Jacob Frydman, the owner of Alternatives in Treatment; and Tom Hantzarides, a resident of a unit leased to him by Boca House. Id., pp.5-8; 29-32; 37-41; 48-53.
Although Mayor Steven Abrams could obviously not control the content of the speakers’ remarks, either pro or con, the Mayor conducted the meeting fairly. He admonished the audience not to applaud a speaker who spoke in favor of the Ordinance, stating, “Thank you. We don’t have an applause meter up here, folks.” See, Hearing Transcript, p.26. He warned a speaker who spoke in favor of the Ordinance to wind up his remarks, when the speaker was exceeding the five minute time-frame. Id., pp.14-15. The Mayor also advised the speakers to address the Council, not the audience - in an effort to keep the meeting on track. Id., pp.46–48.
Moreover, even if isolated comments of certain persons who spoke at the public hearing may be perceived as being generalized notions and stereotypes about recovering addicts, the “motivations of the witnesses cannot be held against the decisionmakers.” Discovery House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277, 283 (7th Cir. 2003). There is nothing in the remarks made by any of the decision makers that cast recovering addicts in a negative light, or which demonstrate that their decision-making was driven by stereotyped, generalized considerations or irrational concerns.
Plaintiffs selectively quote the remarks of the Mayor, when at the end of the meeting, he made a comment to the effect that while there are appropriate places for the facilities in question, a residential setting is inappropriate. This remark does not demonstrate a discriminatory intent, but rather, summarizes the neutral purpose of the Ordinance: to require that “substance abuse treatment facilities” that provide commercial and medical services are in fact located in districts with compatible uses.
Additionally, the full text of the hearing demonstrates multiple, legitimate, nondiscriminatory reasons for the enactment of the Ordinance. The discussion between Council members and the City Attorney (selectively quoted by Plaintiffs) reveals that the decision makers were focused on zoning considerations. See, Hearing Transcript, pp.64-67. The Mayor asked the City Attorney to comment on a suggestion which had been made that the City distinguish between licensed and non-licensed facilities. The City Attorney explained that the Ordinance was drafted to encompass non-licensed as well as licensed facilities because the scope of the State’s licensing requirements had been drawn narrowly, and did not reach facilities that had the same “adverse impacts” in residential settings. By “adverse impacts,” the City Attorney was
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speaking of the institutional, commercial and medical character of Boca House and Awakenings - not about the character, much less any disabled status, of their occupants.
In fact, much of the hearing, including public comments, reveals wholly legitimate comments directed toward the commercial, medical character of treatment facilities and public safety issues. See, Hearing Transcript, passim. Further, the hearing transcript itself reveals specific complaints about the nuisances created by Boca House and Awakenings, including testimony regarding police responses. Id.
In sum, the entire transcript of the hearing, fairly read, demonstrates not only that discriminatory animus was not a “significant factor” in the enactment of Ordinance No. 4649, but that legitimate, non-discriminatory reasons for the enactment were expressed, considered and acted upon. Accordingly, summary judgment should be entered against the Plaintiffs on their claim for intentional discrimination in the enactment of Ordinance No. 4649. V. Summary Judgment Should be Entered in Favor of the City, not the Plaintiffs, as to
the Plaintiffs’ Claim That Section 28-2 is Facially Invalid under the FHAA (Count VIII) A. The Corporate Plaintiffs Waived Their Right To Challenge Section 28-2 Boca House and Awakenings were cited for violation of Section 28-2, City Code, in 1996. The Corporate Plaintiffs could have challenged the citation and, ultimately sought judicial review of the provision. Instead, Boca House and Awakenings settled the violation, entering into a voluntary stipulation that they would comply with the three person requirement. See, City’s Facts, Part II, ¶¶23-24. Notwithstanding the settlement and agreement to comply with Section 28-2, the corporate Plaintiffs years later filed this action. Such conduct constitutes a waiver by the corporate Plaintiffs, barring their claim based upon the alleged invalidity of Section 28-2. B. The City Code’s Treatment of Family Is Not Facially Invalid Under The
FHAA Moreover, Plaintiffs’ argument concerning Count VIII is flawed in several respects. In Count VIII, Plaintiffs allege that Section 28-2, defining “family,” is discriminatory on its face. Pursuant to Section 28-2, the term “family” means: 1 person or a group of 2 or more persons living together and interrelated by bonds of consanguinity, marriage or legal adoption, or a group of persons not more than 3 in number who are not so interrelated, occupying the whole or part of a dwelling as a separate housekeeping unit with a single set of culinary facilities.
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Plaintiffs’ Motion for Partial Summary Judgment, and indeed, Plaintiffs’ Third Amended Complaint, entirely ignore the fact that community residential homes are permitted in all residential districts in the City.9 Therefore, while Section 28-2, City Code, defines “family” in such as way as to limit the number of unrelated persons who may constitute a “family” to three such persons, Section 28-1304, City Code, supersedes the application of the term in the context of group homes for the disabled and others, licensed pursuant to Section 419.001, Florida Statutes. Section 28-1304(a), City Code, provides that homes of six or fewer unrelated residents “shall be deemed a single-family unit and a noncommercial residential use” under the City Code. Section 28-1304(b), City Code, provides for community residential homes with seven to fourteen unrelated residents. Reading Section 28-2 together with 28-1304, Plaintiffs’ argument fails.
Plaintiffs argue that a number of courts have concluded that municipalities violate the FHAA when they attempt to prohibit persons with disabilities from living in single-family zoned homes of their choice because the number of residents exceed family composition requirements. However, the cases relied upon by Plaintiffs are inapposite in at least three key respects.
First, Plaintiffs cite to a number of cases involving “Oxford Houses.” As succinctly explained by the court in Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329 (D.N.J. 1991):
Oxford Houses are intended to provide a drug and alcohol-free environment combined with support and encouragement of other recovering persons….No professional staff resides in Oxford Houses, and no professional treatment is provided. The houses have three fixed rule: no use of drugs or alcohol, no disruptive behavior, and regular payment of their rent…These rules are enforced by the residents themselves, with guidance from the OHI…The current group decides who will move in to the house and how house chores are to be divided. Oxford Houses are not treatment facilities, but rather houses rented by a group of individuals recovering from drug or alcohol addition. 796 F. Supp. at 1332. Oxford Houses are not large scale commercially run enterprises and are “not treatment facilities,” but are group homes that are wholly operated on democratic principles by the individuals who reside in them. As explained, Boca House and Awakenings house over 350 persons in fourteen apartment buildings. Boca House and Awakenings do not merely lease premises to recovering addicts, but in addition provide a variety of commercial and medical services on premises to the occupants as part of the fees that such occupants pay for residing
9 See n.3, supra. 18

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there. See, City’s Facts, Part II, ¶¶1-21. Thus, the cases cited by Plaintiffs which pertain to smaller, non-commercial settings in Oxford Houses do not support Plaintiffs’ position. See also, Oxford House-C v. City of St. Louis, 843 F. Supp. 1556 (E.D. Mo. 1994), rev’d, 77 F.3d 249 (8th Cir. 1996); Tsombanidis v. City of West Haven, 180 F.Supp.2d 262 (D. Conn. 2001), aff’d 352 F.3d 565 (2d Cir. 2003); Oxford House v. Town of Babylon, 819 F.Supp. 1179 (E.D.N.Y. 1993); Oxford House v. Township of Cherry Hill, 799 F.Supp. 450 (D.N.J. 1991).
Second, the cases cited by Plaintiffs for the most part concern municipal zoning codes that do not, in addition to the definition of “family,” provide for a group home for the disabled to be treated as the functional equivalent of a “family” for zoning purposes. See, Town of Babylon, supra, (one or more persons related by blood, marriage or adoption and unrelated persons not exceeding four); City of Plainfield, supra (one or more persons living together as a single nonprofit housekeeping unit); Township of Cherry Hill, supra (collective body of persons…in a domestic relationship based upon birth, marriage or other domestic bond); Gertrude A. Barber Center, Inc. v. Peters Township, 273 F. Supp. 2d 643 (W.D.Pa. 2003) (one or more persons related by blood or marriage or adoption and unrelated persons not exceeding three).
Third, the foregoing cases for the most part do not concern facial challenges to zoning requirements under the FHAA. See, Town of Babylon, supra (disparate impact challenge); City of Plainfield, supra (intentional discrimination and discriminatory impact challenge); Township of Cherry Hill, supra (disparate impact challenge); Gertrude A. Barber, supra (disparate impact challenge); Tsombanidis, supra (intentional discrimination, discriminatory impact, and failure to make reasonable accommodation challenge).
The one decision that is closely on point is Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996), where the court considered a municipality’s family composition rules that were comparable to the City’s in this case. In City of St. Louis, the municipality limited to three the number of unrelated persons who would qualify to live together in a single-family district, but also included group homes for the disabled of up to eight persons as part of the definition. The court stated:
Rather than discriminating against Oxford House residents, the City’s zoning code favors them on its face. The zoning code allows only three unrelated, nonhandicapped people to reside together in a single family zone, but allows group homes to have up to eight handicapped residents…. City of St. Louis, 77 F.3d at 251.
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In this case, the City Code does not facially discriminate against recovering addicts by reason of Section 28-2, City Code. Rather, the City Code as a whole actually favors recovering addicts on its face: whereas the City’s recovering addicts may live in groups of unrelated persons larger than three, this same opportunity is not available to unrelated, non-disabled persons. Thus, the Plaintiffs’ challenge to Section 28-2, City Code, under the FHAA is wholly without merit. VI. Summary Judgment should be Entered in Favor of the City as to the Plaintiffs’
Reasonable Accommodation Claims for Ordinance No. 4649 (Counts III and VI) A. The Individual Plaintiffs never sought any type of accommodation from the
City as to Ordinance No. 4649 The Plaintiffs’ Complaint only asserts that the Corporate Plaintiffs – not the Individual Plaintiffs – made a request for a reasonable accommodation from Ordinance No. 4649. Complaint, ¶¶65-72. In addition, the Plaintiffs have not set forth any evidence (nor can they) that the Individual Plaintiffs requested a reasonable accommodation from Ordinance No. 4649. City’s Facts, Part II, ¶¶26-30. As such, the Plaintiffs’ Motion, to the extent that it seeks summary judgment in favor of the Individual Plaintiffs as to Count III (Reasonable Accommodation Claim under FHAA as to Ordinance No. 4649), should be denied and summary judgment should be entered in the City’s favor. For the same reason, summary judgment should likewise be entered in the City’s favor as to the Individual Plaintiffs’ claims in Count VI (Reasonable Accommodation Claim under ADA as to Ordinance No. 4649). Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1364 (11th Cir. 1999)(affirming the summary judgment entered in favor of the defendant as plaintiff’s failure to demand a reasonable accommodation was “fatal to her ability to prevail on her claim that [the defendant] discriminated against her by failing to provide a reasonable accommodation.”); Wood v. President and Trustees of Spring Hill College in the City of Mobile, 978 F.2d 1214, 1222 (11th Cir. 1992)(holding that “a plaintiff cannot establish a claim under the Rehabilitation Act alleging that the defendant discriminated against him by failing to provide a reasonable accommodation unless he demanded such accommodation”).10
10 Congress intended for courts to rely on cases interpreting the Rehabilitation Act, 29 U.S.C. § 791, when interpreting similar language in the ADA. Gaston, 167 F.3d at 1363 (11th Cir. 1999). Likewise, because the FHAA adopted the concept of a reasonable accommodation from § 504 of the Rehabilitation Act, cases interpreting “reasonable accommodation” under the Rehabilitation Act also apply to claims under the FHAA. Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044 (6th Cir. 2001).
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B. Summary Judgment Should be Entered in Favor of the City as to the Corporate Plaintiffs’ reasonable accommodation claims regarding Ordinance No. 4649 1. The Corporate Plaintiffs’ reasonable accommodation claims as to Ordinance No. 4649 are not ripe because they never sought a decision from the City through the City’s established procedures
Unlike the Individual Plaintiffs, there were a series of letters exchanged between attorneys for the Corporate Plaintiffs and the City relating to Ordinance No. 4649 – some which occurred after the instant lawsuit had been initiated. Plaintiffs’ Facts, ¶¶31-32.11 However, the Corporate Plaintiffs: never followed the procedures in Chapter 28, Article IV, to rezone any real property in the City (i.e. rezoning their properties to be either MC or R-B-1); never followed the established City procedures in Article VI of the City’s Charter to propose ordinances to the City Council or to seek reconsideration by the City Council of Ordinance No. 4649 or Ordinance No. 4701; or sought an accommodation from the City as to specific conditions in Ordinance No. 4649 or Ordinance No. 4701 through a Petition for Special Case Approval, which is the City’s established administrative form and procedure utilized to bring matters to the City Council that are not specified in the City’s Code of Ordinances. City’s Facts, Part II, ¶26. Thus their reasonable accommodation claims for Ordinance No. 4649 are not ripe.
In order to establish a reasonable accommodation claim under the FHAA, the Corporate Plaintiffs must give the City a chance to accommodate them through the City’s established procedures for adjusting the zoning code; otherwise, its reasonable accommodation claim is not ripe and should be dismissed. See Oxford House-C v. City of St. Louis, 77 F.3d 249, 253 (8th Cir. 1996); United States v. Village of Palatine, 37 F.3d 1230, 1233 (7th Cir.1994); Oxford House, Inc. v. City of Virginia Beach, 825 F.Supp. 1251, 1261 (E.D.Va.1993).
The FHAA does not “insulate [the Corporate Plaintiffs] from legitimate inquiries designed to enable local authorities to make informed decisions on zoning issues.” Oxford House-C, 77 F.3d at 253, citing City of Virginia Beach, 825 F.Supp. at 1262. Congress did not intend for the Act to remove handicapped people from the “normal and usual incidents of
11 The Plaintiffs’ Statement of Material Facts in Support of Plaintiffs’ Motion for Partial Summary Judgment [DE 142] will be cited as “Plaintiffs’ Facts, ¶__.” The Corporate Plaintiffs attach several letters written by their counsel, which they contend constitute their requests for reasonable accommodation from Ordinance No. 4649. However, they fail to attach all of the referenced responses from the City’s counsel. Plaintiffs’ Facts, Ex. 8-13; City’s Facts, Ex.5-8.
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citizenship, such as participation in the public components of zoning decisions, to the extent that participation is required of all citizens whether or not they are handicapped.” Id. By defining discrimination under the FHAA to include the “refusal to make reasonable accommodations in rules, policies, [and] practices,” Congress “obviously contemplated providing cities, among others, the opportunity to adjust their generally applicable rules to allow handicapped individuals equal access to housing.” See City of Virginia Beach, 825 F.Supp at 1261, citing 42 U.S.C. § 3604(f)(3)(B). The zoning process serves that purpose. Id. Indeed, were it otherwise, federal courts “increasingly would become entangled prematurely in disputes regarding application of neutral zoning ordinances to the handicapped” and would thus “become not zoning boards of appeals, but zoning boards of first instance, a result Congress surely did not intend.” Id.
While strict compliance with every local ordinance or regulation is not required before the denial of a reasonable accommodation claim may be deemed final, the applicant must show that under the circumstances, that it has afforded the appropriate local authority a reasonable opportunity to consider the project in some final form, to seek the input of the public and of other affected persons, and to state the reasons for its decision. Marriott Senior Living Services, Inc. v. Springfield Township, 78 F.Supp. 2d 376, 385-386 (E.D. Pa. 1999).
Here, the Corporate Plaintiffs never, through the City’s established procedures, attempted to seek a repeal or amendment to Ordinance No. 4649 or Ordinance 4701, rezone their properties (i.e. to MC or R-B-1) or otherwise seek an accommodation through a Petition for Special Case Approval. City Facts, Part II, ¶26. Rather, the Corporate Plaintiffs, who asserted that Ordinance No. 4649 was purportedly discriminatory on its face and enacted with discriminatory intent, merely sent letters to the City’s counsel12 demanding an outright repeal or amendment of the ordinance within three weeks13 in order to avoid and/or settle the instant lawsuit.14 Plaintiffs’
12 Despite the fact that the Corporate Plaintiffs’ counsel were notified that the City was represented by the undersigned’s law firm, one of the letters from the Corporate Plaintiffs’ counsel was improperly directly addressed to the Mayor and City Council. Plaintiffs’ Facts, Ex.9, City’s Facts, Ex.5.
13 The two December 19, 2002 letters demanded that Ordinance No. 4649 be repealed at the City’s first meeting in January 2003. Plaintiffs’ Facts, Ex.9-10.
14 Thus, these letters are not admissible as they were part constitute confidential settlement negotiations between the parties. See Rule 408, Federal Rules of Evidence (Evidence of conduct or statements made in compromise negotiations not admissible).
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Facts, Ex. 8-13; City’s Facts, Part II, ¶¶26. Even if such letters actually requested an accommodation (which they did not), they were still insufficient to support a claim for a denial of a reasonable accommodation.
In Marriott Senior Living Service, the plaintiff’s lawyer sent a letter to the township’s commissioners, requesting that it make a reasonable accommodation under the FHAA and that the township respond within 14 days. 78 F.Supp. 2d at 384. The township’s counsel thereafter rejected the request. Id. The court still granted summary judgment in favor of the township as the plaintiff, like the Corporate Plaintiffs, never afforded the township an opportunity to review a formal proposal. The court further held that the response from the township’s attorney did not constitute the City’s final decision given an incomplete record and small response time window. Id. at 386.
Just like the plaintiff in Marriott Senior Living Services, the Corporate Plaintiffs did not follow the City’s established procedures to seek any type of rezoning, repeal or amendment of a zoning provision, or other accommodation, and only gave the City only a small window of time (which was even shorter given that it encompassed the holiday season) to respond to its demands. The responses by the City’s counsel certainly do not represent a decision by the City, especially given the short time to respond under the threat of impending litigation. Plaintiff’s Facts, Ex.9-11. The Corporate Plaintiffs cannot use settlement demand letters from its attorneys to avoid the absolute requirement that it utilize the City’s established procedures to change the zoning code. Accordingly, the Corporate Plaintiffs’ reasonable accommodation claims as to Ordinance No. 4649 are not ripe, and summary judgment should be entered in the City’s favor.
2. The Corporate Plaintiffs’ demand letters regarding Ordinance No. 4649 did not seek any accommodation nor were such requests reasonable and necessary to afford handicapped persons an equal opportunity for housing
Assuming that the Corporate Plaintiffs’ demand letters to repeal Ordinance No. 4649 were sufficient requests for a reasonable accommodation and had been submitted through the City’s established procedures (which they were not), the Corporate Plaintiffs’ reasonable accommodation claims relating to Ordinance No. 4649 still fail. To prevail on a reasonable accommodation claim, it is a plaintiff’s burden to establish that a proposed accommodation is: (1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunities to use and enjoy housing. See Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597, 603-604 (4th Cir.
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1997); See also, Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002)(stating that a plaintiff has the burden of proving that a proposed accommodation is reasonable). The Corporate Plaintiffs do not meet their burden .
To meet the reasonableness standard, a plaintiff must show that the proposed accommodation does not impose a “fundamental alteration in the nature of a program” or “undue financial and administrative burdens.” Groner v. Golden Gate Apartments, 250 F.3d 1039, 1044 (6th Cir. 2001), citing Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996). Though the Corporate Plaintiffs do not even attempt to meet this burden, they have not (and cannot) refute that the repealing of Ordinance No. 4649 amounts to “throwing the baby out with the bath water” and could lead to a fundamental alteration in the City’s zoning scheme; the proliferation of facilities that provide commercial, medical and quasi-medical uses within the City’s residential neighborhoods would effectively destroy the residential character of the City. See, e.g. Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995)(allowing a hearing dog only for a hearing impaired person in an apartment building that prohibits pets did not unduly burden or fundamentally alter nature of apartment complex, but suggesting that lifting prohibition for everyone could).
The “necessary” element – the FHAA provision mandating reasonable accommodations which are necessary to afford an equal opportunity – requires the demonstration of a direct linkage between the proposed accommodation and the “equal opportunity” to be provided to the handicapped person. Bryant Woods, 124 F.3d at 604. This requirement has the attributes of a causation requirement, and if the proposed accommodation provides no direct amelioration of a disability’s effect, it cannot be said to be necessary. Id. The “equal opportunity” requirement mandates not only the level of benefit that must be sought by a reasonable accommodation, but also provides a limitation on what is required. Id.
Even assuming that the Corporate Plaintiffs are “disabled” or “handicapped” (which they are not), they cannot demonstrate that the repeal of Ordinance No. 4649 is necessary to afford them equal opportunities to use and enjoy housing in the City’s residential districts. As stated above, such opportunities already exist. See pp.2-4, supra. Moreover, the Plaintiffs would need to show that as a result of their residents’ disabilities, it is therapeutically necessary for their residents to: (1) live in a residential neighborhood; (2) live in a facility providing on-site treatment; and (3) be subject to drug testing. The Corporate Plaintiffs cannot demonstrate any of
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these things. Though the Corporate Plaintiffs require drug and alcohol testing as a condition of residency (which subjects them to Ordinance 4649), the Corporate Plaintiffs’ own expert testified that drug testing is not needed to provide sober housing to recovering substance abusers and that the Corporate Plaintiffs can continue to operate and provide sober housing to recovering substance abusers without doing drug and alcohol testing. City’s Facts, Part I, ¶11. The City’s Expert has opined that it is not therapeutically necessary for recovering substance abusers to live in residential neighborhoods or to have on-site treatment. City’s Facts, Part II, ¶37.
Thus, the Corporate Plaintiffs have not (and cannot) meet their burden to show that repealing Ordinance No. 4649 is necessary to afford handicapped persons equal opportunities to use and enjoy housing in the City’s residential districts. Accordingly, summary judgment should be entered in the City’s favor as to the Corporate Plaintiffs’ reasonable accommodation claims relating to Ordinance No. 4649. VII. Summary Judgment should be Entered in Favor of the City as to the Plaintiffs’
Reasonable Accommodation Claims Relating to the City’s Unrelated Person Limitation (Counts X and XII) A. The Plaintiffs’ reasonable accommodation claims as to the Unrelated Person
Limitation are not ripe because they never made such requests to the City The Plaintiffs’ reasonable accommodation claims as to the City’s Unrelated Person Limitation, like their reasonable accommodation claims as to Ordinance No. 4649, are not ripe. The Plaintiffs failed to give the City a chance to accommodate them through the City’s established administrative procedures. See pp.21-23, supra (and cases cited therein). The Plaintiffs, through various correspondence from their attorneys on February 26, 27 and March 8, 2004, sent requests to the City Attorney seeking to allow up to four recovering alcoholics or drug addicts per residential unit. Plaintiffs’ Facts, Ex.15-17. However, the Plaintiffs never sought to use the City’s established procedures to obtain the relief that the Plaintiffs were seeking, even though counsel for the City advised them of such. City’s Facts, Part II, ¶¶26, 30. In fact, on April 1, 200415, counsel for the City sent correspondence to counsel for the Plaintiffs emphasizing was not denying the Plaintiffs’ requests regarding the City’s Unrelated Person Limitation (as alleged in their Third Amended Complaint) and that the Petition for
15 The first page of the letter inadvertently stated that it was sent on March 31, 2004. However, the second page and fax confirmation sheets correctly indicate that it was sent on April 1, 2004. City’s Facts, Ex.9.
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Special Case Approval was the City’s established administrative procedure to bring matters before the City Council that are not specified in the City’s Code of Ordinances (as were the Plaintiffs’ requests). City’s Facts, Part II, ¶30.16 The Plaintiffs ignored the City’s invitation to use the City’s established administrative procedure regarding the City’s Unrelated Person Limitation, and they have offered no evidence or explanation as to why they failed to do so. City’s Facts, Part II, ¶26. As such, their reasonable accommodation claims relating to the City’s Unrelated Person Limitation are not ripe.17 See Oxford House-C, supra; Village of Palatine, supra; Marriott Senior Living Services, supra; City of Virginia Beach, supra. Accordingly, the Plaintiffs’ Motion as to Count X should be denied, and the City’s Motion as to Counts X and XII should be granted.
B. The Plaintiffs’ purported reasonable accommodation are not reasonable and necessary to afford handicapped persons an equal opportunity for housing
Even if the Plaintiffs had demonstrated that they (or their clients) were disabled under the FHAA and ADA or had properly followed the City’s established procedures for a reasonable accommodation from the City’s Unrelated Person Limitation (which they did not), their reasonable accommodation claims relating to the City’s Unrelated Person Limitation still fail. Plaintiffs have not met their burden in demonstrating that such requests were reasonable and necessary to afford handicapped persons equal opportunities to use and enjoy housing. See Bryant Woods, supra.; Loren, supra.
1. The Individual Plaintiffs do not need to live with three more persons in recovery
The Individual Plaintiffs in their February 27, 2004 and March 8, 2004 correspondence (which are virtually identical with the exception of the names of the individuals) state that each of the Individual Plaintiffs reside with three other recovering substance abusers. Plaintiffs’
16 Curiously missing from the Plaintiffs’ Memorandum and Statement of Facts is any mention of counsel for the City’s April 1, 2004 correspondence. Rather, the Plaintiffs prematurely (and inaccurately) end their story before the City’s April 1, 2004 correspondence.
17 Matthew Wolf’s reasonable accommodation claims also fail because he testified that he did not authorize counsel for the Individual Plaintiffs, James Green, to submit a request for reasonable accommodation from the Unrelated Person Limitation on his behalf. City’s Facts, Part II, ¶31.
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Facts, Ex.15-16.18 The letters, drafted by counsel, then generically state, without any support whatsoever, that recovering substance abusers “are far more often successful when living in a household with at least three other persons in recovery, particularly in the early stages of recovery” and that the City’s Unrelated Person Limitation therefore “interferes with the critical mass of individuals supporting each other in recovery.” Id. The letters do not state whether (or present evidence that) the Individual Plaintiffs need to live with at least three other persons in recovery (e.g. a doctor’s diagnosis that it is therapeutically necessary for each of the Individual Plaintiffs to live with at least three other persons in recovery per unit). Id.
Not only do the Individual Plaintiffs fail to demonstrate that they need the purported accommodation from the City’s Unrelated Person Limitation, they admitted quite the opposite. They testified that they only “need” to live with one other person in recovery – not three or more persons in recovery. City’s Facts, Part II, ¶32.19 This is further supported by the City’s expert. City’s Facts, Part II, ¶¶38, 42. Thus, because the Individual Plaintiffs have failed to meet their burden, the City is entitled to summary judgment as to their reasonable accommodation claims pertaining to the City’s Unrelated Person Limitation.
2. The Corporate Plaintiffs have not demonstrated that persons in recovery need to live with three other persons
In a similar generic format, the February 26, 2004 correspondence from the Corporate Plaintiffs’ counsel to the City Attorney likewise seeks a reasonable accommodation from the City’s Unrelated Person Limitation. Plaintiffs’ Facts, Ex.15. However, the Corporate Plaintiffs’ correspondence seeks a blanket waiver from the City’s Unrelated Person Limitation, without providing any evidence whatsoever about the number of residences for which they seek an accommodation, or whether such accommodation is needed to ensure the Corporate Plaintiffs’ financial viability or is therapeutically necessary for recovering substance abusers. See LapidLaurel, L.L.C. v. Zoning Board of Adjustment of the Township of Scotch Plains, 284 F.3d 442, 461 (3rd Cir. 2002)(holding that plaintiff failed to meet burden to show that expansion to a 95 bed care facility was necessary for therapeutic reasons or for the group home’s financial viability);
18 With the exception of Matthew Wolf, the letters incorrectly state that the Individual Plaintiffs live in housing operated by the Corporate Plaintiffs. City’s Facts, Part II. ¶33.
19 Bobby Hoover currently lives on his own and does not live in any residence owned or operated by the Corporate Plaintiffs, Steven Manko individually (the Corporate Plaintiffs’ owner), or any entity controlled by Manko. City’s Facts, Part II, ¶32.
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Bryant Woods, 124 F.3d at 605 (there was no evidence that the sought accommodation of expanding group home limit from 8 persons to 15 persons was necessary to maintain the group home’s financial viability).
It is patently obvious that the Corporate Plaintiffs’ purported accommodation is nothing more than an attempt to turn a larger profit and is not necessary for therapeutic reasons or for the Corporate Plaintiffs’ financially viability. In fact, the Corporate Plaintiffs currently house approximate 300 men and 90 women. City’s Facts, Part II, ¶3. Moreover, Mr. Manko has testified that the Corporate Plaintiffs can be profitable with only three persons per unit, thus belying any assertion of financial necessity. See, City’s Facts, Part II, ¶35.
In addition, the Corporate Plaintiffs cannot show that such request is necessary to allow additional recovering substance abusers an equal opportunity to live in the City’s residential districts. There is no waiting list for additional recovering substance abusers to live at the Corporate Plaintiff’s properties (City’s Facts, Part II, ¶34), and recovering substance abusers have many additional opportunities to live in a protected sober environment in the City’s residential areas [pp.2-4, supra]. See Bryant Woods, 124 F.3d at 605 (holding that expansion of group home is not necessary because handicapped individuals had “numerous” other group homes with vacancies).
Lastly, the Corporate Plaintiffs have not demonstrated that their request for an accommodation from the City’s Unrelated Person Limitation is reasonable, because such an occupancy increase in the amount of all of the residential units owned by the Corporate Plaintiffs could result in a fundamental change in the City’s land use regulations. If anything, an increase in the amount of individuals living at all of the Corporate Plaintiffs’ facilities (now housing almost 400 people) could fundamentally alter the City’s residential areas by, among other things, causing an increase in traffic and reduction in the amount of required parking per resident.
Thus, for all of these reasons, the City is entitled to summary judgment as to the Corporate Plaintiffs’ reasonable accommodation claims pertaining to the City’s Unrelated Person Limitation.
WHEREFORE, the City respectfully requests that this Court deny the Plaintiffs’ Motion, grant the City’s cross-motion, and for such additional relief as the Court deems appropriate.
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Diana Grub Frieser City Attorney City of Boca Raton 201 W. Palmetto Park Road Boca Raton, FL 33432

Respectfully submitted,
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.A. Co-Counsel for the City of Boca Raton 200 East Broward Boulevard, Suite 1900 Fort Lauderdale, FL 33312 Telephone: (954) 763-4242 Telecopier: (954) 764-7770

By: /s/ Matthew H. Mandel Jamie Alan Cole Florida Bar No.: 767573 Matthew H. Mandel Florida Bar No.: 147303

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by e-mail this 20th day of December, 2006, to William Hill, Esq., 200 South Biscayne Boulevard, Suite 2500, Miami, Florida 33131, (305) 374-7593, and James K. Green, Esq., Suite 1630, Esperanté, 222 Lakeview Avenue, West Palm Beach, Florida 33401, (561) 655-1357.

/s/ Matthew H. Mandel Jamie A. Cole Matthew H. Mandel

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 Case 9:03-cv-80178-DMM Document 222 Entered on FLSD Docket 03/15/2007 Page 1 of 18
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO: 03-80178-CrV-MIDDLEBROOKS/JOHNSON JEFFREY 0., et a1. PlaintifTs, vs. CITY OF BOCA Ri>..TON, a Florida Municipal Corporation, Defendant.
PLAINTIFFS' MOTION FOR NEW TRIAL OR TO ALTER OR AMEND JUDGMENT Plaintiffs, pursuant to Federal Rule of Civil Procedure 59, move for a new trial, or to alter or amend the judgment in this matter, and as grounds for their motion, state:
INTRODUCTION PlaintifTs challenged two ordinances of the city of Boca Raton ("City") under two separate federal statutes, the Fair Housing Act ("FHA") and the Americans with Disabilities Act ("ADA"). The Court recognized that the FHA was the "crux of this case." (Final Order at 7, Feb. 26, 2007. DE 220.) The ordinances challenged were City Ordinance 4649, as amended by Ordinance 4701 (collectively referred to as "Ordinance 4649" or "the Sober House Ordinance") and the City's restrictive deiinition of family contained in City's Code of Ordinances § 28-2 ("28-2"). After a non-jury triaL this Court ruled that both ordinances violate the FHA. (Final Order at 22, 25.) Judgment was entered in favor of Plaintiffs and against the Defendant City by Order of Final Judgment entered on March 1,2007. (DE 221.) Although the Court found that both ordinances violate the FHA, the Court let stand the first definition of "substance abuse treatment center" found in Ordinance 4649 (Definition 1).
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Finding that the second definition of substance abuse treatment center in Ordinance 4649, referencing drug or alcohol testing, violated the FHA, the Court enjoined its enforcement The Plaintiffs respectfully request that the Court alter the judgment and invalidate that definition as well. As sct forth more fully below, the first definition violates the Fair Housing Act and should not be allowed to stand.
The Court also found that § 28-2 violated the FHA through its disparate impact on recovering, disabled persons. (Final Order at 28.) The Court enjoined enforcement of § 28-2, but limited the injunction to enforcement against disabled individuals, and excluded the Provider Plaintiffs from the injunction. Id. The Plaintiffs seek to alter or amend judgment as to the exclusion of the Provider Plaintiffs from the injunction as to § 28-2. In regard to the exclusion of the Provider Plaintiffs from the injunction as to § 28-2, the Court's sua sponte injection of the affinnative defense of unclean hands, due to the fact that the Provider Plaintiffs previously agreed to abide by the City'S family definition, was not warranted because unclean hands was never pled or even raised by the Defendant. Additionally, under binding federal case law, because the equitable doctrine of unclean hands should not be applied in a statutory case such as this, where its application would thwart the underlying purpose of the statute, unclean hands should not apply to an injunction under the FHA. Moreover, the fact that the Provider Plaintiffs were previously cited by the City for violating a law that itself violated the Federal Fair House Act should not give rise to a finding of unclean hands.
PlaintilTs additionally seek to alter or amend the judgment, or a new trial, on the Court's factual finding that the Provider Plaintiffs have 390 recovering persons all within one quarter
mile of one another. As far as the concentration of persons housed by the Provider Plaintiffs is
concerned, the Court's finding is a manifest factual error, but easily corrected. The Provider PlaintilTs house far fewer than 390 recovering persons. More importantly, though, the Provider
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Plaintiffs' buildings are not all located within one quarter-mile of one another, but are much more widely dispersed.
Finally, as to Ordinance 4649, Definition 1, it too violates the FHA, based on the Court's reasoning for finding that Ordinance 4649, subsection (2) ("Definition 2") violates the FHA. Definition 1 would require any facility that is licensed or required to be licensed under Fla. Stat. § 397.311(18) to locate only in the City'S medical or commercial zones. While the Provider Plaintiffs are not licensed or required to be licensed under the specifIed statute, the City threatens to take action against the Provider Plaintiffs based on the City'S unilateral view that, notwithstanding contrary findings by the Florida Department of Children and Families ("DCF"), the Provider Plaintiffs are "required to be licensed." Hence, under the City'S view, the Provider Plaintiffs would be required to move out of their present location in residential neighborhoods, contrary to the Court's rulings. Additionally, even though the Provider Plaintiffs are not licensed or required to be licensed, licensed facilities for the handicapped enjoy the same protection under the FHA as non-licensed facilities. Because the City could not establish a legitimate, recognized justification for its facially discriminatory Ordinance 4649, Definition 1 violates the FHA.
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MEMOR~NDUM OF LAW
I. Unclean Hands A. The Defendant City Did Not Raise Unclean Hands in Connection with Boca House's Prior Agreement to Abide bv the Family Definition in § 28-2. Unclean hands is an affirmative defense to claims for equitable relief. See,~, Mitchell
Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 854, 863 (5th Cir. 1979).1 As an affirmative defense, if not pled, it is waived. Fed. R. Civ. P. 8(c); see Easterwood v. CSX Transp .. Inc., 933 F.2d 1548, 1551 (lIth Cir. 1991) (citing Morgan Guarantee Trust Co. ofN.Y. v. Blum, 649 F.2d 342,344 (5th Cir. 1981) ("All affirmative defenses must be specifically pleaded in the answer or in an amended answer permitted under Fed. R. Civ. P. 15(a), or be deemed waived.'} In this case, the City did not raise an affirmative defense of unclean hands based on any allegation that the Provider Plaintiffs had previously agreed to abide by the family definition in § 28-2.
In its answer and affirmative defenses, the City raised 26 affirmative defenses, including an affirmative defense based on the allegation that the Provider Plaintiffs had previously agreed to abide by § 28-2. Affirmative defense 19 stated:
Boca House and Awakenings have waived any challenge to § 28-2 they were previously cited for violating the number of unrelated persons allowed to occupy a single dwelling and voluntarily stipulated to an order of enforcement instead of challenging such purported limitations. Furthermore, neither Boca House or Awakenings ever raised (in response to being cited for violating the number of persons allowed to occupy a single dwelling) that such provision was discriminatory or that an accommodation from such provisions was necessary to afford handicapped or disabled persons an equal opportunity to use and enjoy in the City's residential neighborhoods.
I Decisions orthe United States Court of Appeals for the Fifth Circuit handed down prior to September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. Citv of Pritchard. 661 F.2d 1206, 1207 (11 th Cir.1981).
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Thus, while the City did raise a factual allegation in connection with the Provider Plaintiffs' agreement to abide by § 28-2, the City clearly made that allegation to support an affirmative defense of waiver2 and did not mention unclean hands,
This waiver defense was reiterated by the City in its Memorandum of Law in Opposition to Plaintiffs' Motion for Partial Summary Judgment (and in favor of City's Cross Motion) (DE 150-1) at page 17. The City further reiterated its waiver defense in the Joint Pretrial Stipulation (DE 148), at pages 14 and 18 (issue of law for determination at trial: "whether Boca House and Awakenings waived their right to challenge the City's definition of 'family' in § 28-2"). In short, the City consistently pressed a waiver defense based on the Provider Plaintiffs' prior consent to abide by the family definition, but never an unclean hands defense based on that fact.
Nor does the Joint Pretrial Stipulation mention unclean hands as an issue of fact or law to be tried. Likewise, while undersigned counsel does not have a transcript of the trial in this case, counsel's notes do not reflect that the City's attorneys argued the doctrine of unclean hands at trial. The issue was never briefed on summary judgment. The City thus did not put on a case to support the application of unclean hands to deny the Provider Plaintiifs the benefit of the Court's ruling that § 28-2, the City's restrictive definition of family, violates the FHA.
The only mention of unclean hands that the undersigned can find in the record is an affirmative defense of unclean hands raised in the City'S answer and affirmative defenses, but that defense is based on entirely different facts. The City's aftlrmative deiense number 24 states:
The claims of Boca House and Awakenings are barred by the doctrine of unclean hands as they have been and continue to violate other existing ordinances, laws and/or statutes.
The Cit~,"s purported \vaiver defense \vas of dubious validity, Brentwood Acad. v. Tenn. Secondary Sch. Athletic AS5'0. 262 F.3d 543, 550 (6th eif.200!)( a school did not waive its First Amendment rights by joining an athletic association, 'shere there was no express \vaiver of right to sue), cert. granted, T~nnesscc Scwndary School Athldk A.ss'n v. Brentwood Academy. 127 S.Ct. 852 (U.s. Jan 05. 2(07). and contrary to the public policy embodied in the FHAA to make group sober housing available in residential neighborhoods for persons in recovery. This Comi rejected the waiver defense
in this case.
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This aftlrmative defense is based on an allegation that the Provider Plaintiffs were guilty of unclean hands because of some unspecified violation of ordinances, laws, or statutes other than those at issue in the case, i.e. other than Ordinance 4649 or § 28-2. This amrmative defense was not based on any allegation that a violation by Boca House of § 28-2 itself supported the finding of unclean hands3
In short, the City never raised as an affinnative defense that the Provider Plaintiffs' alleged violations of, or agreements to, abide by § 28-2 amounted to unclean hands so as to defeat any relief sought in this case. The issue was not tried by consent. The aftlnnative defense was therefore waived, and the Court should not afford City the benetit of an affinnative defense that it had a duty to raise, but did not.
Finally, the Provider Plaintiffs are prejudiced by the application of an amrmative defense that was neither pled nor otherwise ever raised by the City. The Provider Plaintiffs were not given the opportunity to put on testimony or other evidence explaining its decision to abide by § 28-2, a decision that involved legal counsel. Had this affirmative defense been properly pled, the Provider PlaintifIs could have taken steps to meet it, both factually aud with legal briefing. As a result of the City'S failure to raise the defense, the Provider Plaintiffs were aware of its potential application for the first time upon receipt of this Court's order. The Provider Plaintiffs are thus prejudiced by the Court's raising af1irmative delenses sua 'ponte.
To the extent that this affirmative defense appears to be in any way ambiguous as to what the City meant by violations of "other existing ordinances, law, and/or statues," such ambiguity is cured by reviewing affinnative defense number 23, found just above the unclean hands affinnative defense, affinnative defense number 24. Affinnative defense number 23 states: "Boca House and Awakenings do not have standing to challenge the subject ordinances because they have been and continue to violate other existing ordinances, laws and/or statues." Read together, it is clear that both affirmative defense numbers 23 and 24 seek bars to the relief sought by the Provider Plaintiffs based on violations of some unspecified ordinances, laws, or statutes other than the "subject ordinances" Ordinance 4649 and § 28-2,
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B. Case Law Establishes tbat the Equitable Defense of Unclean Hands Should Not Be Applied to Preclude the Benefit of Statutory Protections.
The equitable defense of unclean hands is not applicable to the Provider PlaintitIs here because their cause of action in regard to § 28-2 was to enjoin the City's violation of a federal statute, the FHA. Indeed, this Court found on page 25 of the Final Order that § 28-2 violates the FHA as written because that section does not include an exception for handicapped individuals such as the residents of Boca House. The Court nonetheless held that the Provider Plaintiffs should be excluded from the temporary enjoinment of the enforcement of § 28-2, citing Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979), for the proposition that the Provider Plaintiffs came to the Court with unclean hands because they previously agreed to comply with § 28-2. (Final Order at 29.) This holding conflicts with the actual holding in Mitchell Bros. Film Group, along with other controlling case law limiting the use of the unclean hands defense in a case involving a statutory injunction like the one ordered by the Court. (Final Order at 28.)
We have found no published opinion under the FHA in which any court refused to grant a party injunctive relief based on that party's unclean hands. Indeed the unclean hands defense has long been held to have only limited applicability. See, e.g., Clark Equip. Co. v. Lift Parts Mfg. Co., No. 82 C 4585. 1984 WL 1348, at *6 (N.D. IlL 1984); see also Deal v. Migoski, 122 So. 2d 415,417 (Fla. 3d DCA 1960)). Further, a careful reading of Mitchell Bros. Film Group reveals that the facts of this case do not support the Court's sua sponte application of the unclean hands defense to the temporary injunction of § 28-2. (Final Order at 28.) The Mitchell Bros. Film Group court states unambiguously that the lower court's creation of a defense to the statute at issue "in the name of unclean hands ... adds a defense not authorized by Congress that may ...
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actually frustrate the congressional purpose underlying [the] statute .... The Supreme Court and this court have held that equitable doctrines should not be applied where their application will defeat the purpose of a statute." 604 F.2d at 861 (citing Penna-Life Mufflers. Inc. v. Int"! Parts Corp., 392 U.S. 134, 138 (1968) (overruled on other grounds in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984)). Therefore, the unclean hands doctrine may not be applied to the Provider Plaintiffs under the Mitchell Bros. Film Group holding because this Court found that § 28-2 violates the FHA and application of the doctrine could defeat the purpose of that Act by allowing the City to deny fair housing opportunities to the Provider Plaintiffs' residents.
Here, § 36l3(c)(l) of the FHA expressly provides for injunctive relief in the event ofa violation: "if the court finds that a discriminatory housing practice has occurred or is about to occur, the court may ... grant as relief, as the court deems appropriate, any permanent or temporary injunction ...." The Act does not provide for the defense of uncican hands. See generally § 3601 et seq. In Smith v. Dovenmuehle Mortgage. Inc., No. 94 C 139, W1994 WL 275034 (N.D. III. 1994), the court reached this conclusion in the context of an ADA claim and held that the traditional equitable defense of unclean hands was inapplicable to a statutory cause
of action for equitable relief. Id. at *I. (Defendant has not cited any case in support of its
argument that the "unclean hands" doctrine bars a claim for reinstatement under the ADA. Therefore, if plaintitI succeeds at trial under his ADA claim, his "unclean hands" will not prevent the court from ordering "reinstatement.") Here, the Court has temporarily enjoined the City under § 36] 3(c)(I) against enforcing § 28-2. (Final Order at 28.) Because such injunction arises under the FHA and no! a cause of action for traditional equitable relief; the rradilional equitable defense of unclean hands should not be applied to the Provider Plaintifls. See StelleI v. Thompson, 415 U.S. 452,471 (1974) (noting the ditlerence between traditional equitable causes
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of action and statutory ones and holding that any requirement that all of the traditional equitable prerequisites to the issuance of an injunction be satistled before the issuance of a declaratory judgment under the Declaratory Act would defy Congress' intent to make declaratory relief available in cases where an injunction would be inappropriate). Rather than affording the sort of relief intended by Congress under the FHA, this Court's application of the unclean hands doctrine to the Provider Plaintiffs, and the potential effect on the Provider Plaintiffs' residents, serves only to fmstrate Congress' purpose in enacting § 3613(c)(1 )-namely, to afford a remedy to handicapped individuals when they are unfairly denied housing of their choice.
Just such a result was avoided by the old 5th Circuit when it refused to apply the unclean hands doctrine in Mitchell Bros. Film Group based, in part, upon the Supreme Court of the United States' refusal to apply the similar equitable defense of in pari delicto to a cause of action under antitmst laws in Perma-Life Mufflers, Inc., 392 U.S. at 138. In that case, the Court held that it is inappropriate to invoke broad common-law barriers to relief where a private suit serves important public purposes. Id. More recently, the Court reinvigorated its decision in Perma-Life Mufflers, Inc. when it held that "[e]quity's maxim that a suitor who engaged in his own reprehensible conduct in the course of the transaction at issue must be denied equitable relief because of unclean hands ... has not been applied where Congress authorizes broad equitable relief to serve important national policies. We have rejected the unclean hands defense 'where a private suit serves public purposes.'" McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 360 (1995) (quoting Perma-Life Mufi1ers, Inc. 392 U.S. at 138). Here, as recognized by this Court on pages 23-24 of the Final Order, the Provider Plaintiffs' suit against the City to enjoin enforcement of § 28-2 serves the important public purpose of attacking the disparate impact § 28-2 has on handicapped individuals' fair access to housing. Thus under McKennon and Perma-
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Life Mufflers. Inc., this Court should not apply the unclean hands defense to an injunction under the FHA.
Rejection of the unclean hands defense is also appropriate in this matter under the Supreme Court's holding in the earlier case of Precision Inst. Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806 (1945), quoted on page 29 of the Final Order. In that case, the Court held that the maxim "he who comes into equity must come with clean hands" requires that plaintiffs "shall have acted fairly and without fraud or deceit as to the controversy in issue." Id. at 814-15. But the Court continued by stating that "where a suit in equity concerns the public interest as well as the private interests of the litigants this doctrine assumes even wider and more significant proportions" because "in such a case it not only prevents the wTongdoer from enjoying the fruits of his transgression but averts an injury to the public." But clearly distinguishable from the instant matter, public interest supported the position of the defendant in Precision lnst. Mfg. Co., due to tact that the plaintiff was attempting to enforce certain patents and contract rights that conflicted with the public's "right to access to a free and open market." [d. at 815-16. Likewise, the Provider Plaintiffs' argument that § 28-2 violates public policy, and this Court's finding of the same (Final Order at 25-26), necessitate a narrowing, as opposed to a widening, of the Court's use of discretion in refusing equitable relief, so as to further the far-reaching social goals of the FHA and allow the temporary injunction of § 28-2 to operate for the benefit of the Provider Plaintiffs' residents.
Further, as to the specific facts of the case, the Provider Plaintiffs' decision to cease compliance with the 3-person limit under § 28-2 after filing this lawsuit does not rise to the level of "unfair fraud" or "deceit" as would give rise to application of the unclean hands defense under Precision Inst. Mfg. Co. See id. at 814-15. The unclean hands defense is only applicable where a plaintiff "has so conducted [itself] as to shock the moral sensibilities of the judge." Jackson v.
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Waffle House, 413 F.Supp. 2d 1338, 1362 (N.D.Ga. 2006). The Provider Plaintiffs' prior act of complying with § 28-2, in order to continue operating their business within the City, clearly does not rise to such a level and they should not now be punished for the same. Rather, squarely in line with the Supreme Court's analysis in Perma-Life Mufflers. Inc., in the context of an antitrust suit, the Provider Plaintiffs and their residents should be permitted to share the benefit of the temporary injunction against the City'S enforcement of § 28-2, because they complied with the restraints imposed by the City, and did not outright refuse to so comply until they brought suit under the FHA to enjoin such restraint. See Perma-Life Mufflers. Inc., 392 U.S. at 139-40. The Perma-Life Mufflers, Inc. Court based its holding in this regard on the fact that the plaintiffs in that case "accepted many of [the] restraints [at issue] solely because their acquiescence was necessary to obtain an otherwise attractive business opportunity. . .. [Plaintiffs] cannot be blamed for seeking to minimize the disadvantages of the agreement once they had been forced to accept its more onerous terms as a condition of doing business." Id. at 140-41.
Strikingly similar to the reasoning of the Court in Penna-Life Mufflers. Inc., the Provider Plaintiffs cannot be blamed for agreeing to comply with § 28-2 before bringing the instant lawsuit for the following reasons: (I) such compliance was a condition of being permitted to operate their business in the City without being fined and ultimately put out of business in Boca Raton, Florida; (2) the evidence shows that the Provider PlaintilIs generally complied with the 3person limit under § 28-2 up to their becoming aware that such provision violated the FHA; and (3) the Provider PlaintifIs filed this lawsuit to enjoin the City'S enforcement of § 28-2 before refusing outright to comply with a law that violates the FHA. Notably, because conduct which occurs during the litigation of the lawsuit, rather than during the accrual of the action, cannot f()rm the basis oran unclean hands defense, E.E.O.C. v. Bav Ridge Tovota.lnc.• 327 F.Supp. 2d
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167, 173 (E.D.N.Y. 2004), such defense cannot be raised against the Provider Plaintiffs for their post-filing refusal to comply with § 28-2.
In Simovits v. Chanticleer Condo. Ass'n, 933 F.Supp. 1394 (N.D.1Il. 1996), the District Court for the Northern District of Illinois refused to apply the unclean hands defense to a cause of action for injunctive relief under the FHA. The case involved a suit brought by condominium owners to enjoin the condominium association's enforcement of a "no children" covenant. In granting the relief sought by the owners, the court held that the former endorsement of the "no children" policy by one of the owners, a position taken solely for political reasons, did not give rise to the application of the defense. Id. at 1404. The plaintiffs did not raise the issue that Congress chose not to include the unclean hands defense in the FHA, and thus the court did not address it. Nevertheless, the court held that "even if the conduct of the Simovits indicated a clear willingness on their part to accept the benefits of the Association's exclusionary policy until that policy effectively prevented them from selling their unit for its full value, such conduct would not preclude their right to challenge its legality." Id. This holding is directly applicable to the facts in this case because, even if the Provider Plaintiffs' fonner compliance with § 28-2 allowed them to accept the benefit of heing permitted by the City to continue providing housing to recovering individuals, such compliance does not preclude their right under the FHA to challenge the legality of the ordinance. The application of the unclean hands defense should therefore be denied to the City and the Provider Plaintiffs should be permitted to benefit from this Court's enjoining the City's enforcement of § 28-2.
Finally, as to the Court's reasoning regarding the 3-person limitation under § 28-2, the Provider PlaintitTs respectfully ask this Court to review the case ofChildren·s Alliance v. Citv of Bellevue, 950 F.Supp. 1491 (W.D.Wash. 1997). Under that case, the City'S interests in limiting the number of persons pemlitted to share group housing are limited to the extent that sucb
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interests have a disparate impact on disabled persons. In reaching its holding in this regard, the Children's Alliance court stated that "[g]eneralized interests in public safety, stability, and tranquility have been enough to redeem ordinances that drew distinctions between groups when subjected to rational basis review. But under the stricter level ofscrutiny appropriate here, these interests are only sufficient if they are threatened by the individuals burdened by the Ordinance." Id. at 1498 (emphasis added) (internal citation omitted). The court then added that although such generalized interests have been upheld as justifications for ordinances under rational basis review, they cannot withstand the more rigorous scrutiny required by Larkin v. State of Mich. Dep't of Soc. Servs., 89 F.3d 285 (6th Cir. 1996). Children's Alliance, 950 F.Supp. at 1499; see also Connecticut Hospital v. City of New London, 129 F.Supp. 2d 123 (D.Conn. 2001) (noting "that the town's definition of family which limits the number of unrelated persons who could live together, would be a violation of the FHA if used to stop the group homes from operating") (citing City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 738 (1995); Oxford HouseEvergreen v. City of Plainfield, 769 F.Supp. 1329 (D.N.J. 1991 )). II. The Court Made a Factual Error in Finding that the Provider Plaintiffs Housed
390 Individuals in 14 Apartment Buildings All within a Quarter Mile of One Another. In the Final Order, page 2, the Court made the following finding of fact: "Provider Plaintiffs served approximately 390 individuals in 14 apartment buildings, all of which are a quarter of a mile of each other." (Final Order at 2.) The finding appears to be material to the Court's ultimate decisions on the issues, as the Court returns to this factual finding later in the conclusions of law: "While I agree that recovering individuals need \0 be given the opportunity to live in group arrangements as discussed earlier, such arrangements need not include approximately 390 people in a group of buildings all within a quarter of a mile of each other."
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(Final Order at 21-22.) Undersigned counsel is not aware of the evidence upon which the Court based this finding, but it is not accurate.
As set forth in the attached Declaration of Steven Manko, based on the official records of the Provider Plaintiffs, the total capacity for recovering at the Provider Plaintiffs' facilities is 356 persons, including the so-called "Graduate Housing" units that are not owned by the Provider Plaintiffs, but rather by family trusts ultimately controlled by Mr. Manko. The difference in the total capacity, 390 versus 356, may be due to the fact that some of Mr. Manko's housing units are occupied by non-recovering individuals. At any rate. the more important aspect, the concentration of the units, is simply not accurate. The buildings owned by the Provider Plaintiffs, as well as the Graduate Housing, are not all located within one quarter mile of one another. The most concentrated number of recovering individuals living together within the Boca House units is the Level I residents, who live in adjoining apartment buildings on West Camino Real which have the capacity to house 52 individuals in one apartment building and 40 in the other. The next-closest set of units are a number of Level 2 and 3 buildings (mostly fourplexes) located on 14th and 15tl1 Street, which are over a half-mile from the main building on West Camino Rea1.4 The Graduate Housing units are located between one half mile and one and one-half miles from the 321 Camino Real building, except for one at 398 West Camino Real, housing up to 3 persons, which is less that a quarter mile away. The Awakenings building, with a capacity for 84 recovering individuals (all women), is located approximately two and onequarter miles away from the main Boca House building. Accordingly, Boca House does not have 390 recovering persons housed in buildings within one quarter mile of one another.
-l Plaintiffs Trial Exhibit 31 also generally shmvs the locations and capacities of the Provider PlaintitTs building 9, The capacities shown are somewhat higher from the present capacity because certain units have been connected to non-recovery housing.
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These facts are based on the simple Declaration of Mr. Manko attached hereto. If the COUl1 wishes further testimony on this point, the Provider Plaintiffs are willing to provide it. Further, the distance between buildings is also independently verifiable by online mapping searches. In any event, the distances between units shown herein are generally consistent with the trial testimony on cross examination of the City'S planner, Cannen Annunziato. III. Definition 1 under Ordinance 4649 Violates the FHA.
The Court found that Definition 2 violates the FHA and enjoined the City from enforcing the same (Final Order at 28); however, the Court found that Definition 1 does not violate the FHA and allowed that portion of Ordinance 4649 to remain in effect. (Final Order at 27.) This finding constitutes a manifest error in law because, notwithstanding the fact that Definition 1 refers to Florida's statutory definition oflicensed providers under Florida Statutes § 397.311(18), licensed facilities are protected under the FHA.
As the Court found on page 12 of the Final Order, ''The amendments to the FHA were intended to prohibit the use of zoning regulations to limit 'the ability of [the handicapped] to live in the residence of their choice in the community.'" (Final Order at 12.) As such, the FHA does not distinguish between providers based upon licensure status. See Smith & Lee Ass'n. Inc. v. City of Taylor. Mich., 13 F.3d 920, 931 (6th Cir. 1993) (holding that a state-licensed residential care facility was protected under the FHA and noting that persons with disabilities "may have little choice but to live in a commercial home if they desire to live in a residential neighborhood"); see also U.S. v. City of Jackson, 318 F.Supp. 2d 395, 413 (D. Miss. 2002) (holding that a licensed emergency shelter was protected under the FHA because virtually all of the residents living at the shelter were handicapped within the meaning of the Act); Epicenter of Steubenville. Inc. v. Citv of Steubenville, 924 F.Supp 845, 849 (prohibiting the City of Steubenville. Ohio's enforcement of an ordinance against a licensed adult-care-provider facility
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as violative of the FHA). Because Definition I therefore limits the ability of disabled individuals to live in the residence of their choice in vioaltion of the FHA, the City must be enjoined trom enforcing Definition I.
The essential problem with Definition 1, for purpose of the FHA, is that it is overbroad in requiring any facility licensable under Fla.Stat. § 397.311 (18) to locate only in commercial or medical zones. That statute lists 9 different types of licensed-service providing, some of which have no residential component, e.g., outpatient treatment under § 397.311 (18)(f). Additionally, however, § 397.311 defines certain facilities that would undoubtedly receive the protections of the FHA, e.g., a "[r]esidential treatment facility" that is used "for room and board only and in which treatment and rehabilitation services are provided on a mandatory basis at locations other than the primary residential facility." § 397.311 (18)(d)(2). Hence, purely residential facilities would fall under Definition 1, and would be required to move. Such a law violates the FHA in treating recovering persons differently, and no justification can save it. This argument is particularly compelling when viewed in light of the City's other zoning provisions, such as those allowing nursing and convalescent homes in residential district city code, § 28-418.
CONCLUSION WHEREFORE, Plaintiffs respectfully request the Court to enter a new judgment altering or amending the Court's findings in the Final Order as appropriate, and if necessary, granting a new trial as to the concentration of residents issue.
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CERTIFICATE OF COUNSEL The undersigned certifies that he has discussed the issue raised by this motion with opposing counsel and could not agree on the relief sought herein.

March 15,2007

Respectfully submitted,
is/ William K. Hill William K. Hill, P.A. Melissa Pallett-Vasquez BILZIN SUMBERG BAENA PRICE & AXELRODLLP 200 South Biscayne Boulevard, Suite 2500 Miami, FL 33131 Tel.: 305-350-7202 Fax: 305-351-2216
Counsel for REGENCY PROPERTIES OF BOCA RATON, INC. AND AWAKENINGS OF FLORIDA, INC.
and
James K. Green, Esq. JAMES K. GREEN, P.A. Suite 1650, Esperante' 222 Lakeview Ave. West Palm Beach, FL 33401 Florida Bar No: 229466 Tel.: 561-659-2029 Fax: 561-655-1357
Cooperating Attorney for the AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF FLORIDA, INC.

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via e-mail (by agreement) this 15th day of March, 2007 on:

Nancy Langworthy, Esq. United States Department of Justice, Housing & Civil Enforcement Section 1800 "G" Street, N.W., Suite 7002 Washington, D.C. 20006

Jamie Alan Cole Matthew H. Mandel Weiss Serota Helfman Pastoriza Cole & Boniske, P.A. 200 East Broward Blvd., Suite 1900 Fort Lauderdale, FL 33301

Diana Grub Frieser City Attorney City of Boca Raton 201 W. Palmetto Park Road Boca Raton. FL 33432

By: /s/ William K. Hill

ivIlAlvH 1280fr7+.2 7637423182

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 511 F.Supp.2d 1328 (2007)
JEFFREY O. et al., Plaintiffs, v.
CITY OF BOCA RATON, Defendant.
No. 03-80178-CIV.
United States District Court, S.D. Florida.
January 17, 2007.
132390 *1329 *1330 William King Hill, Bilzin Sumberg Baena Price & Axelrod, Miami, FL, for Plaintiffs.
Diana Grub Frieser, Boca Raton, FL, Jamie Alan Cole, Matthew Harris Mandel, Weiss Serota Helfman Pastoriza, Fort Lauderdale, FL, for Defendant.
ORDER ON PARTIES' MOTIONS FOR SUMMARY JUDGMENT
DONALD M. MIDDLEBROOKS, District Judge.
THIS CAUSE comes before the Court the parties' cross motions for summary judgment.[1] This case involves individual plaintiffs, as well as corporate plaintiffs, Regency Properties of Boca Raton, Inc. ("Boca House") and Awakenings of Florida, Inc. (collectively referred to as "Provider Plaintiffs") suing the City of Boca Raton ("City") regarding its passage of Ordinance No. 4649, later amended by Ordinance No. 4701 ("Ordinance")[2] and Section 28-2 of the Code of Ordinances ("Section 28-2"). Plaintiffs brought this suit in March 2003. Plaintiffs allege the City has violated the Fair Housing Act, 42 U.S.C. § 3601 et seq. (FHA), Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. (ADA), and the 14th Amendment to the United States Constitution. 1331 'Specifically, Plaintiffs argue that the Ordinance and Section 28-2 ban persons *1331 recovering from drug and/or alcohol addiction from residing in any residential neighborhood within the City.
Both parties have moved for partial summary judgment. The City filed a Motion for Partial Summary Judgment arguing that the Plaintiffs lacked standing to bring certain of their claims where they are not disabled or handicapped. Plaintiffs moved for summary judgment arguing that the Ordinance and Section 28-2 discriminate against Plaintiffs in violation of the FHA and that the City failed to grant a requested reasonable accommodation to the Plaintiffs in violation of the FHA. I have reviewed the submissions of the parties and the record in this case.
Facts
Individual Plaintiffs are individuals who are recovering alcoholics and/or drug addicts. Provider Plaintiffs own and operate housing units in residential neighborhoods of the City in which such Individual Plaintiffs reside.[3] These housing units are drug and alcohol free. Provider Plaintiffs provide services to residents to aid in their drug and alcohol free lifestyle and impose rules in an effort to achieve the same goal. Such services include counseling and such rules include being subject to drug testing and a curfew.
This case involves two actions taken by the City, which have a direct impact on Plaintiffs. The Ordinance requires any facility that fits the definition of "Substance Abuse Treatment Facilities" to be located in an area zoned Medical Center District or in some circumstances, with special exception approval, in a Motel Business District. Substance Abuse Treatment Facilities include "[s]ervice providers or facilities which require tenants or occupants to participate in treatment and rehabilitation activities, or perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition of, or essential component of, the tenancy or occupancy . . ." Provider Plaintiffs fall within this definition and are currently located in residential neighborhoods. Thus, the Ordinance requires them to move.

The second action Plaintiffs challenge is Section 28-2 which regulates how many people of a certain type can live in a residential unit by defining the term family. Section 28-2 defines the term family as:

1332

1 person or a group of 2 or more persons living together and interrelated by bonds of consanguinity, marriage, or legal adoption, or a group of persons not more than 3 in number who are not so interrelated, occupying the whole or part of a dwelling as a separate housekeeping unit with a single set of culinary facilities. The persons thus constituting a family may also include gratuitous guests and domestic servants. Any person under the age of 18 years whose legal custody has been awarded to the state department of health and rehabilitative services or to a child-placing agency licenses by the department, or who is otherwise considered to be a foster child under the laws of the state, and who is placed in foster care with a family, shall *1332 be deemed to be related to a member of the family for the purposes of this chapter. Nothing herein shall be construed to include any roomer or boarder as a member of a family.

Plaintiffs argue that this definition further impacts their living situation where recovering alcohol and drug addicts are more likely to need to live in sober residences which generally include a group of non-familial people living together to aid each other in recovery. Therefore, Plaintiffs argue, they are more likely because of their disability to live in non-familial arrangements that violate Section 28-2.

Standard of Review

Summary judgment is appropriate only when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of meeting this exacting standard. See Adickes v. S.H. Kress & Co., 398 US. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In applying this standard, the evidence, and all reasonable factual inferences drawn therefrom, must be viewed in the light most favorable to the non-moving party. See Arrington v. Cobb County, 139 F.3d 865, 871 (11th Cir.1998); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997).

The non-moving party, however, bears the burden of coming forward with evidence of each essential element of their claims, such that a reasonable jury could find in their favor. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir.1990). The non-moving party "[m]ay not rest upon the mere allegations and denials of [its] pleadings, but [its] response . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will, be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, conclusory, uncorroborated allegations by a plaintiff in an affidavit or deposition will not create an issue of fact for trial sufficient to defeat a well-supported summary judgment. See Earley, 907 F.2d at 1081. The failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial and requires the court to grant the motion for summary judgment. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

If the record presents factual issues, the Court must not decide them; it must deny the motion and proceed to trial. See Env't Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. See Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir.1969). If reasonable minds might differ on the inferences arising from undisputed facts, then the Court should deny summary judgment. See Impossible Elec. Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031 (5th Cir.1982); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)("[T]he dispute about a material fact is genuine,' . . . if the evidence is such that a reasonable jury could return a verdict for the non-moving party.").

1333 Moreover, the party opposing a motion for summary judgment need not respond *1333 to it with evidence unless and until the movant has properly supported the motion with sufficient evidence. See Adickes, 398 U.S. at 160, 90 S.Ct. 1598. The moving party must demonstrate that the facts underlying ,all the relevant legal questions raised by the pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding

that the non-moving party has introduced no evidence whatsoever. See Brunswick Corp. v. Vineberg, 370 F.2d 605, 611-12 (5th Cir.1967). The Court must resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. It is from this point that I begin my analysis.
Let me begin by saying that each party has submitted a statement of material facts in support of their motion and a corresponding statement of facts in opposition to the opposing side's motion. These submissions highlight the factual disputes between the parties. Given the presence of such a dispute, I am not inclined to grant either parties' motion. The motions indicate the parties do not agree about the facts underlying the positions, but instead argue that based on the facts as they see them, they are entitled to summary judgment. I disagree. I will address the parties' motions separately.
The City's Motion
The City moved for summary judgment as to Counts 1-6 and 8-12 arguing that Plaintiffs are not disabled or handicapped under the ADA or the FHA. Plaintiffs disagree. The ADA and FHA[4] define disability with respect to an individual as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or. (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). The City's Motion focused on the first of these definitions. Plaintiffs respond that the City has not demonstrated there is no genuine issue of material fact as to whether Plaintiffs meet any of the possible definitions.
The City's first argument is that being a recovering substance abuser is not a per se disability. I am under a "statutory obligation to determine the existence of disabilities on a case-by-case basis." Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 566, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). Given the individualized inquiry required, I agree with the City that Plaintiffs are not entitled to a finding that their addiction causes them to have a per se disability.[5] However, this does not end the inquiry.
The City's Motion goes on to argue the crux of its position by pointing out that Plaintiffs do not have a physical or mental impairment that substantially limits one or more of the major life activities. Essentially, the City argues that 1334 the Individual Plaintiffs have not met their burden to demonstrate that their recovering status *1334 substantially limits one or more major life activities. Judge King, in Roig v. Miami Federal Credit Union, 353 F.Supp.2d 1213 (S.D.Fla.2005), recently discussed what is required to establish a disability under this first definition.
Establishing an actual disability, the first possible manner to establish an ADA disability, involves a three-step analysis. First, a plaintiff must demonstrate that he is impaired. Second, a plaintiff must identify the life activity that is impaired and demonstrate that it is a "major life activity" under the ADA. A major life activity includes "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." "If not contained within these exemplars, the activity must be `significant' to everyday life." "Finally, a plaintiff must show that the impairment `substantially limits' that life activity." Substantially limits is a severe standard and must include permanent or long-term restrictions on performance of the life activity.
Roig, 353 F.Supp.2d at 1216 (internal citations omitted). Plaintiffs argue that their impairment is their recovering substance abuse status and such status substantially limits their ability to secure housing, which Plaintiffs argue is a major life activity.
Specifically, Plaintiffs point out that due to their recovering status they require housing which includes supervision in a structured group setting[6] and thus, their housing is substantially limited by their impairment. The Second Circuit addressed a similar connection between one's recovering status and their inability to live independently in Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 47 (2nd Cir.2002) (hereinafter "RECAP'). Admittedly, the facts of RECAP are slightly different in that "the inability to live independently without suffering a relapse" was a baseline prerequisite for admittance into the RECAP facility. Id. at 47-48. In this case, Provider Plaintiffs have not stated such inability is a prerequisite to admittance. However, the residents of Provider Plaintiffs come to Provider Plaintiffs via a referral from an inpatient or out-patient rehabilitation or detoxification facility. Provider Plaintiffs may not impose the same baseline requirement on

individuals seeking to gain admittance to Provider Plaintiffs' program, as the facility did in RECAP, but Plaintiffs have submitted at least enough evidence to establish a genuine issue of fact as to whether the residents' inability to live independently substantially impairs their ability as to housing. For example, 99% of Provider Plaintiffs' residents have been through out-patient or in-patient rehabilitation or a detox facility prior to joining Provider Plaintiffs. Approximately 4-5 residents of Provider Plaintiffs relapse per week.[7] The City attempts to negate 1335 Plaintiffs' assertions, by pointing *1335 out that Individual Plaintiffs are able to do everything that normal people do. This case was filed more than three years ago. It is not surprising that the Individual Plaintiffs have been able to become more independent. The City's proffer of `normalness' does not account for the possibility of a relapse. In addition, the record includes declarations by current residents stating that they need the structure Provider Plaintiffs provide in order to continue in their recovery. These facts are similar to those in RECAP where the residents of RECAP could not remain at the facility once they were able to maintain their sober living while living independently. Id. at 47. The second circuit in RECAP concluded that the RECAP clients met the first definition of disability where their addiction substantially limited their ability to live independently or with their families. Id. Other circuits have acknowledged the position that recovering alcoholics and drug addicts may meet the statutory definition of handicapped. See Lakeside Resort Enterprises, LP v. Board of Supervisors of Palmyra Township, 455 F.3d 154, 156 n. 5 (3rd Cir.2006); MX Group, Inc. v. City of Covington, 293 F.3d' 326, 338-39 (6th Cir.2002); U.S. v. Southern Management Corp., 955 F.2d 914, 920-23 (4th Cir.1992).
The statute's provisions support the position that such recovering addicts can be protected. See MX Group, Inc., 293 F.3d at 338-39; Southern Management Corp., 955 F.2d at 920-23. The statute specifically excludes individuals currently engaged in the illegal use of drugs, but then goes on to state that such provision does not exclude an individual with a disability as someone who has successfully completed a drug rehabilitation program, is currently in such a program, or is mistakenly regarded as engaging in illegal drug use. MX Group, Inc., 293 F.3d at 339 n. 3 (citing 42 U.S.C. § 12210(b)). In MX Group, the court was dealing with individuals who, in order to be admitted to plaintiff's facility, would have to show they had suffered from drug addiction for at least one year. Id. at 338. Therefore, admittance to the facility was not directly linked to the substantial limitation of a major life activity as was the case in RECAP. Despite this factual difference, the court in MX Group held that the potential clients of the facility were entitled to protection under the ADA. The City has presented evidence that the Individual Plaintiffs who no longer live in Boca House regard themselves as being able to do all major life activities. However, Plaintiffs point out the possibility of a relapse and submit evidence of current residents regarding their inability to live independently. The highly individualized inquiry required of me in these circumstances, the lack of a per se rule regarding drug and alcohol addiction, and the standard to be applied to the City's Motion requiring me to view the evidence in a light most favorable to Plaintiffs, all lead me to conclude that the City is not entitled to summary judgment as to this point.
The City's Motion primarily discusses the actual disability definition, but as Plaintiffs point out in their opposition and the City responds to in its Reply, there are two other definitions available to obtain the protection Plaintiffs 1336 request. Plaintiffs can demonstrate a record of having such an impairment or be regarded as *1336 having the impairment.[8] 42 U.S.C. § 12102(2). Plaintiffs argue that they meet either of these definitions as well, or at the very least there is a genuine issue of material fact as to whether they meet the definitions.
Plaintiffs can also survive the City's Motion for Partial Summary Judgment by establishing that there is a genuine issue of material fact as to whether Plaintiffs have a record of impairment. In their Opposition, Plaintiffs point out that all Plaintiffs have a record of an impairment where they have a history of alcohol or drug addiction. However, as the City argues in its Reply, the record of a mere addiction is not sufficient. The City argues Plaintiffs must have a record of an impairment which substantially limits a major life activity. The language of the statute is "record of such an impairment." 42 U.S.C. § 12102(2)(B). The use of the word such in the definition "makes clear that [the plaintiff], at some point in the past, must have met or been classified as meeting [the first definition]." Burch v. Coca-Cola Co., 119 F.3d 305, 321 (5th Cir. 1997). Therefore, the City's interpretation of what is required is correct. However, even agreeing with the City's interpretation of what is required under the statute, I still find no basis to grant summary judgment on this issue.
The City does not dispute that the Individual Plaintiffs were addicted to drugs and/or alcohol. This is the impairment. There is a record of this impairment where residents of Provider Plaintiffs come to them after having

been in a rehabilitation facility being treated for their addiction. The City argues that there is an insufficiency of evidence to establish a material fact as to whether there is a record that such addiction substantially limited Plaintiffs' major life activities. Even though the Individual Plaintiffs have moved onto more independent housing situations, they all started at phase one of Provider Plaintiffs' options. This included not being able to live with their families, being required to live with other sober individuals, having a curfew, getting counseling, and being subject to drug testing, just to name a few of the restrictions. These restrictions exemplify the substantial limitation Plaintiffs' impairment put on their housing options. If, as discussed above, there are factual questions regarding whether Plaintiffs satisfy the first definition, the same factual issues are present as to the record of such an impairment. Provider Plaintiffs also submitted declarations of current residents which support the position that the impairment that plagues Provider Plaintiffs' residents substantially limits major life activities, including housing and caring for oneself. For example, one resident stated that she was homeless during her addiction and the 1337 strict guidelines imposed by Provider Plaintiffs ensure her continued *1337 sobriety which consequently allows her to have housing. At least one Individual Plaintiff lost his marriage and home to his addiction. Other residents lost their jobs, businesses, and families due to their addiction. "Major life activities include `functions, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.'" RECAP, 294 F.3d at 47. Plaintiffs have established a genuine issue of fact as to whether they have a record of an impairment that limited their ability to work, care for themselves, including but not limited to keeping a roof over one's head. Accordingly, the City's Motion cannot be granted on this ground.
Addressing the last of the definition possibilities, I turn to the possibility that Plaintiffs were regarded as having such an impairment. See 42 U.S.C. § 12102(2). In support of this position, Plaintiffs point to the very perception which lead to the passage of the Ordinance. Specifically, Plaintiffs point to the statements made at the council meeting when the Ordinance was enacted. The record includes statements made by the residents of the City talking about getting the addicts out and the ghettoization of the neighborhood as a result of the addicts' continued presence. It is clear residents of the City regarded Plaintiffs as being addicts. There may be some question as to whether residents regarded such addiction as substantially limiting at least one of plaintiffs' major life activities. This is not clear from the record. However, having found there exist factual issues as to the first two definitions, I need not reach this question where the City's Motion fails on this point based on my discussion above.
The City also moved for summary judgment as to the Corporate Plaintiffs in this case arguing that they have put forth no evidence that demonstrates a genuine issue of material fact as to whether their residents meet the required statutory definition. The City argues this case is similar to Cohen v. Township of Cheltenham, Pennsylvania, 174 F.Supp.2d 307 (E.D.Pa. 2001) where the court granted defendant's motion for summary judgment finding that the evidence was insufficient to support the claim of disability under the FHA. As discussed above, I disagree with the City's assertion. Provider Plaintiffs have submitted declarations by current residents which established a genuine issue as to whether the residents of Provider Plaintiffs are disabled which is a material fact in this case. Moreover, there is conflicting evidence as to the facts surrounding Individual Plaintiffs and their ability to fall within the definition of disabled as discussed above. This case is not like Cohen. Therefore, based on the foregoing discussion I deny the City's Motion.
The Plaintiffs' Motion
Plaintiffs move for summary judgment on their FHA claims as to both the Ordinance and Section 28-2. Plaintiffs assert that they are entitled to summary judgment as to their claims that the Ordinance violates the FHA based on the City's intentional discrimination and failure to grant a reasonable accommodation to the Plaintiffs. In addition, Plaintiffs argue summary judgment is appropriate as to their claims that Section 28-2 violates the FHA where it deliberately discriminates against them in violation of the FHA and again where the City failed to provide a reasonable accommodation to the Plaintiffs. The City's Opposition points out the lack of standing as it argued in 1338 its Motion and then goes on to argue the lack of discrimination where recovering substance *1338 abusers can live anywhere in the City and Provider Plaintiffs' facilities are substantially different from a standard apartment building.
As to Plaintiffs' discrimination claims under the FHA, they require that the Plaintiffs "be disabled. This decision involves a factual inquiry which in this case precludes the granting of summary judgment as discussed above. In

addition, Plaintiffs' Motion seeks summary judgment on two counts involving the City's alleged failure to provide a requested reasonable accommodation. "Generally, the question of whether a proposed accommodation is reasonable is a question of fact." Buskirk v. Apollo Metals, 307 F.3d 160, 170 (3d Cir.2002); Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1527 (11th Cir.1997). Plaintiffs requested the repeal of the Ordinance, as well as another accommodation which would allow Provider Plaintiffs to receive reports of drug testing instead of performing such testing on site. As to Section 28-2, Plaintiffs asked the City to permit four recovering drug addicts or alcoholics to share a two bedroom or larger household. The question of whether these requests or others made by Plaintiffs were reasonable, is a factual one and thus precludes the granting of summary judgment on this issue. This highly fact-specific inquiry, coupled with the individualized inquiry required regarding standing cause me to deny Plaintiffs' Motion for Partial Summary Judgment.
Plaintiffs' Motion to Strike
Plaintiffs moved to strike the City's Cross Motion for Summary Judgment. This case was filed more than three years ago. I received the case in November 2006 at which point the City had already filed its Motion for Partial Summary Judgment. Plaintiffs had not filed a motion for summary judgment at that point. Shortly after receiving the case, I held a status conference where deadlines for the case were discussed. On November 17, 2006, an order was entered establishing December 1, 2006 as the deadline for Plaintiffs to file a motion for summary judgment. Plaintiffs acted accordingly and then almost three weeks later, the City filed another motion for summary judgment.
Plaintiffs argue the City's cross motion should be stricken where the City did not obtain any prior permission to file a second motion for summary judgment and the local rules expressly prohibit the filing of multiple motions for summary judgment. S.D. Fla. L.R. 7.1(C)(2). The City argues 'that the local rule cited specifically addresses the length of such motions, not situations such as these. The City also argues that its second motion should not be stricken where the issue of standing, which it raises in its cross motion, can be raised anytime, and the issues it raises in its cross motion dealt solely with the issues Plaintiffs raised in their Motion for Partial Summary Judgment. The local rules allow a party one chance to file a motion for summary judgment to dispose of the claims at issue. The City was aware at the status conference that it had already filed its motion for partial summary judgment and the Plaintiffs were going to be given until December 1st, 2006 to file a motion for summary judgment. Should the City have desired the opportunity to file an additional motion for summary judgment, it had ample opportunity to request permission to do so. While I understand the City's position that standing is a threshold issue, the City raised such issue in its Motion for Partial Summary Judgment. Therefore, 1339 striking the City's Cross Motion does not preclude it from raising *1339 this threshold issue. The City requests that should Plaintiffs' Motion to Strike be granted, that I grant it only with leave to refile its opposition to Plaintiffs' Motion for Partial Summary Judgment.
The City filed its Cross Motion separately from its Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment. I see no reason to allow for the City to refile its opposition. This case is set for trial in less than a week. I have considered the City's Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment to the extent it opposed Plaintiffs' Motion. Therefore, while I grant Plaintiffs' Motion to Strike I only do so as to the City's Cross Motion (DE 149), not its Opposition.
Accordingly, it is hereby
ORDERED AND ADJUDGED that
(1) Defendant's Motion for Partial Summary Judgment (DE 109) is DENIED;
(2) Plaintiffs' Motion for Partial Summary Judgment (DE 140) is DENIED;
(3) Plaintiffs' Motion for Hearing on the Motion for Partial Summary Judgment (DE 143) is DENIED;
(4) Plaintiffs' Motion to Strike (DE 157) is GRANTED;
(5) Defendant's Cross Motion for Partial Summary Judgment (DE 149) is STRICKEN;

(6) Plaintiffs' Motion for Enlargement of Time to Respond to Defendant's Cross Motion for Partial Summary Judgment (DE 182) is DENIED as MOOT.
[1] These motions include the City of Boca Raton's Motion for Partial Summary Judgment (DE 109) filed on September 14, 2006, to which Plaintiffs responded (DE 116) on October 16, 2006, and Defendant replied (DE 130) on November 6, 2006, and Plaintiffs' Motion for Partial Summary Judgment (DE 140) filed on December 1, 2006, to which Defendant responded (DE 150) on December 20, 2006, and Plaintiffs replied (DE 167) on January 2, 2007. There is also a cross motion filed by Defendant which Plaintiffs have moved to strike. This Motion is not considered due to the granting of the Motion to Strike which will be discussed in depth later in this order.
[2] The City Council enacted Ordinance 4649 on May 29, 2002 and on April 8, 2003, the City Council enacted Ordinance 4701, which amended Ordinance 4649. Ordinance 4701 appears to have done little in substance to change the definition of Substance' Abuse Treatment Facility. However, it did substantively change the effective date of the Ordinance, making the effective date 18 months after the passage of the Ordinance or 60 days after the rendition of a final non-appealable order in this lawsuit, whichever is later.
[3] The individual plaintiffs who still remain in this suit no longer reside at residences owned by Provider Plaintiffs. However, they did live there at the time the allegedly discriminatory act was committed by the City. Moreover, the nature of Provider Plaintiffs' residences are such that the natural progression is to have residents move out after having advanced to the point of independent living. Should the individual plaintiffs relapse, they have stated their intent is to return to Boca House.
[4] The ADA definition can also be used to evaluate one's handicap under the FHA where the two definitions are "used interchangeably." Cohen v. Township of Chelten ham, Pennsylvania, 174 F.Supp.2d 307, 324 (E.D.Pa.2001).
[5] This is not to say there is never a per se disability available, but the facts of this case do not present such an issue, particularly given the absence of binding precedent establishing such a per se rule or its viability in these circumstances. See, e.g., Roberts' Rayonier, Inc., 135 Fed.Appx. 351, 355 (11th Cir.2005)(pointing out the lack of such an analysis regarding an alcohol-related ADA claim).
[6] Provider Plaintiffs recognize there are various levels of recovery and accordingly, their housing offers four different levels to correspond to such levels of recovery. One's placement in a certain level is dependent upon the level of supervision and restriction needed to ensure sobriety, and the length of time the individual has been sober. All participants begin at level one. The following are part of Provider Plaintiffs' programs: drug testing, counseling, including individual counseling and/or Alcoholics or Narcotics Anonymous, a prohibition on living with residents' families, having overnight guests, or keeping prescription drugs in individual rooms, and having a curfew.
[7] Boca House, the men's facility, has approximately 300 residents and Awakenings, the women's facility, has approximately 90 residents. Roughly 10% of the residents relapse in a given week.
[8] The City argues in its Reply that the Plaintiffs did not properly allege these other two definitions. However, this argument is without .merit. In paragraph eleven of Plaintiffs' Third Amended Complaint, the Plaintiffs allege the actual disability and then go on to allege facts which support the second two definitions. The Complaint states "[i]n addition, each of the Plaintiff Residents has been diagnosed as suffering from alcohol or drug dependence, is participating or has participated in alcohol or drug treatment on an outpatient basis at facilities unrelated to Boca House and Awakenings, and is regarded as disabled." Third Amended Compl. ¶¶ 11. The first part of this sentence addresses the second definition of having a record of impairment and the second half of the sentence specifically addresses the regarding as definition. Therefore, I will address Plaintiffs' arguments as to all definitions to the extent necessary for purposes of this order.
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 511 F.Supp.2d 1339 (2007)
JEFFREY O. et al., Plaintiffs, v.
CITY OF BOCA RATON, Defendant.
No. 03-80178-CIV.
United States District Court, S.D. Florida.
February 26, 2007.
13401 *1340 *1341 James Kellogg Green, West Palm Beach, FL, William K. Hill, Melissa Pallett-Vasquez, Bilzin Sumberg Baena Price & Axelrod, Miami, FL, for Plaintiffs.
Diana Grub Frieser, City of Boca Raton, Boca Raton, FL, Jamie Alan Cole, Matthew Harris Mandel, Weiss Serota Helfman Pastoriza et al., Fort Lauderdale, FL, for Defendant
FINAL ORDER
DONALD M. MIDDLEBROOKS, District Judge.
This cause came before the Court for final disposition during a non jury trial from January 22, 2007 through January 29, 2007. Plaintiffs brought suit against the Defendant City of Boca Raton in March 2003, alleging that it violated the Fair Housing Act, 42 U.S.C. § 3601 et seq. (FHA), Title II of the Americans with Disabilities Act, 42 1342 U.S.C. § 12131, *1342 et seq. (ADA), and the 14th Amendment to the United States Constitution by passing Ordinance 4649, as amended by Ordinance 4701, and Section 28-2. Primarily, Plaintiffs allege that the City's actions discriminate against them based on their handicapped status where these two zoning provisions limit the ability of Plaintiffs to reside in residential areas of the City. Pursuant to Federal Rule of Civil Procedure 52(a), I make the following findings of fact and conclusions of law.
Facts
Plaintiffs are individuals who are recovering alcoholics and drug addicts ("Individual Plaintiffs"), as well as corporate entities ("Provider Plaintiffs") which provide housing and additional services to approximately 390 recovering individuals in areas zoned for residential use within the Defendant City of Boca Raton ("City"). Steve Manko is the president of Provider Plaintiffs who own a number of apartment buildings which are marketed to recovering individuals as sober housing. In their sober housing, Provider Plaintiffs provide different levels of oversight to their residents, including, but not limited to drug testing, curfews, room checks, medication controls, and group meetings.
In 2002, the City was faced with the dilemma of how to regulate sober houses, such as Provider Plaintiffs'. Ordinance Number 4649 was proposed to deal with the issue. At the city council meeting where the council took up this ordinance, many residents of the City spoke specifically about Provider Plaintiffs' facilities and their impact on the neighborhood. Provider Plaintiffs served approximately 390 individuals in 14 apartment buildings, all of which are within a quarter of a mile of each other. The residents of the City expressed many concerns, including the way in which Provider Plaintiffs operated their business. Specifically, residents spoke to Provider Plaintiffs' policy of evicting individuals who relapse while keeping the person's deposit[1] and kicking individuals out with no where to go when they relapsed. The residents were also concerned about the changing dynamic of their neighborhood where the individuals living in Provider Plaintiffs' buildings frequently loitered in front of the apartment buildings, did not stay for more than a few months, and were often from out of town. There were also a lot of broad generalizations made by residents at the meeting, regarding the negative impact a high concentration of recovering individuals had on their neighborhood. One resident testified that he was able to purchase drugs at Boca House. At that meeting, the city council passed Ordinance Number 4649. The city council later passed

Ordinance 4701 which amended Ordinance 4649. Ordinance Number 4649, as amended by Ordinance Number 4701 ("Ordinance 4649") states:

1343

Substance Abuse Treatment Facility shall mean a service provider or facility that is: 1) licensed or required to be licensed pursuant to Section 397.311(18). Fla. Stat. or 2) used for room and board only and in which treatment and rehabilitation activities are provided at locations other than the primary residential *1343 facility, whether or not the facilities used for room and board and for treatment and rehabilitation are operated under the auspices of the same provider. For the purposes of this subparagraph (2), service providers or facilities which require tenants or occupants to participate in treatment or rehabilitation activities, or perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition of, or essential component of, the tenancy or occupancy shall be deemed to satisfy the "treatment and rehabilitation activities" component of the definition contained in this section.

The Ordinance requires that Substance Abuse Treatment Facilities as defined above be located in the City's Medical Center District, or with approval, in a Motel/Business district.

The City put forth evidence to establish that in passing Ordinance 4649 it was attempting to group together compatible uses and separate non-compatible uses. For example, the City's Mayor testified that Provider Plaintiffs engaged in commercial and medical uses, therefore making them appropriately placed in medical or commercial zones. The City's planning and zoning director testified that Provider Plaintiffs' facilities which offered a "unique recovery program" were different from normal apartment buildings. The planning and zoning director also explained that the services provided by Provider Plaintiffs were not residential in character. Therefore, where the services provided were not residential in character, Provider Plaintiffs' facilities should not be located in a residential area according to the planning and zoning director.

Provider Plaintiffs' buildings are located in an area with other multi-family residences. In addition, the area in which Provider Plaintiffs' buildings are located is very close to commercial areas. The appearance of Provider Plaintiffs' buildings does not stand out in the area. There was no evidence at trial as to how Provider Plaintiffs' facilities impacted the surrounding residential area, including but not limited to additional cars in the area, additional foot, traffic in the area, a burden on public resources, or even an appearance that was out of character with the area.

Also involved in this case, is a provision of the City Code, Section 28-2, which defines the term family as:

1 person or a group of 2 or more persons living together and interrelated by bonds of consanguinity, marriage, or legal adoption, or a group of persons not more than 3 in number who are not so interrelated, occupying the whole or part of a dwelling as a separate housekeeping unit with a single set of culinary facilities. The persons thus constituting a family may also include gratuitous guests and domestic servants. Any person under the age of 18 years whose legal custody has been awarded to the state department of health and rehabilitative services or to a child-placing agency licensed by the department, or who is otherwise considered to be a foster child under the laws of the state, and who is placed in foster care with a family, shall be deemed to be related to a member of the family for purposes of this chapter. Nothing herein shall be construed to include any roomer or boarder as a member of a family.

The City requires a residential dwelling unit be occupied by one family. Therefore, this provision limits the amount of unrelated people who can live in a residential dwelling unit in the City.

1344 *1344 Individual Plaintiffs and the current residents of Provider Plaintiffs who testified were all recovering alcoholics or drug addicts. Because of their addiction, these individuals lost jobs and families, and some were unable to keep a roof over their head during their active addiction. One Plaintiff testified that personal hygiene was the first ability he lost during a relapse. He did not take care of himself, including self-grooming and eating. A current resident of Provider Plaintiffs testified that during her active addiction she was homeless. Each of the recovering individuals testified as to the difficulties they were faced with as addicts, including an inability to possess large amounts of money, have an intimate relationship with another person, or be around people

consuming alcohol or using drugs. Recovery from alcohol or drug addiction is an ongoing process, which for many individuals can be a lifelong process. At one time each of the Individual Plaintiffs lived in Provider Plaintiffs' apartment buildings. They also testified that if they relapsed they would return to live in Provider Plaintiffs' residences. The restrictions imposed by Provider Plaintiffs during the residents' early stages of recovery aided these individuals as they advanced through their recovery.
Plaintiffs' expert, Riley Regan, testified as to the impact addiction has on one's life, not just during active addiction, but also for the rest of his or her life. It is common for recovering individuals to need to. live in an environment that is drug and alcohol free in order to further their recovery. Regan stated that without drug testing there is no way for everyone to be sure that the living environment is drug and alcohol free. This testimony was also supported by the recovering individuals who testified that drug testing kept them motivated to stay sober and kept them safe. Regan also testified about the need for recovering individuals not to live alone because loneliness can trigger a relapse and living with other individuals imposes an accountability to other, people. This testimony was in line with that of the recovering individuals who testified where they described loneliness and boredom as possible triggers to relapses. This is not to say that some of the individuals wanted to live alone and did live alone, but many acknowledged the benefits they had and could reap from living with other recovering individuals.
Provider Plaintiffs provided many tools to recovering individuals to aid in their recovery. It is more than just housing, it was also characterized as a treatment model. While this is arguably a laudable endeavor on Manko's behalf, his business model did not always appear to be so altruistic. Manko's positions regarding what services he provided and what legal arrangement he had with his residents shifted depending on the implications of such for his business model, more than for the therapeutic needs of his residents. For example, prior to this litigation, recovering individuals executed a license agreement with Provider Plaintiffs in what may have been an effort to escape traditional landlord/tenant laws. However, such individuals now execute a lease. This change in terminology coincides with Manko's current suit which seeks protection from the Fair Housing Act and his attempt at differentiating himself from the commercial use that concerned the City. Instead, Manko is attempting to focus on the housing aspect of the services he provides. Provider Plaintiffs continue to market themselves in the recovering community as a provider of a "unique recovery program." Provider Plaintiffs' marketing literature uses 1345 terms like "Three-Phase Transitional *1345 Recovery Program." All of these facts support the conclusion that Provider Plaintiff is providing more than housing.
Manko's history with the City and his shifting position is also exemplified by his agreement with the City to comply with Section 28-2, but failing to do so. In 1996, Manko was cited for violating the occupancy limitation of the City code. That same year Manko entered in a stipulation with the City agreeing not to have more than three unrelated persons occupying a single unit. Again in 2001, Manko was cited with the same violation and again informed the City that he was seeking to comply with Section 28-2, although occasionally violated the limitation, because of unexpected events. At trial it became clear that Manko never consistently limited his units to three individuals. Furthermore, at trial Manko argued that having more than three individuals in a unit[2] was essential to the residents' recovery. However, Manko's decision to continue to put more than three individuals in a unit could reasonably have been based on economics. Provider Plaintiffs charged $170 a week for each recovering individual. With four people in a unit, Provider Plaintiffs grossed approximately $2,720 a month per unit. Manko testified that the same unit rented to a family of four would go for approximately $1,200, less than half of what Provider Plaintiffs made by placing more than three recovering individuals in each unit. This calculation may have played into Manko's continued violation of Section 28-2. Provider Plaintiffs' continued profitability is exemplified by their ability to acquire a significant number of apartment buildings in the area.
Manko's questionable business practices aside, the evidence at trial did demonstrate that the two provisions Plaintiffs challenge limit the ability of recovering individuals to obtain housing within the residential areas of the City. The recovering individuals testified about the importance of living in a residential area because there are many more temptations in commercial zones, such as bars and hotels which recovering addicts would frequent during their active addition. Therefore, it would be more difficult for them to maintain their sobriety while living in such areas. As discussed above many recovering individuals need, at least at one point during their recovery, to live in a substance-free environment and their recovery is further supported by group living arrangements, both for the practicality of day-to-day living, as well as, the economic viability of such housing arrangements.

Plaintiffs' claims include a claim for a reasonable accommodation. The City put forth evidence that its Petition for Special Case Approval form was the form an individual would use to request a reasonable accommodation. This form makes no mention of a reasonable accommodation or a disability. The City attorney testified that this form is how a person or entity would request a reasonable accommodation. The form lists five different options for which it is a petition for, none of which is a reasonable accommodation. The City attorney testified that an applicant would check the sixth box which states Other (specify), with a blank line. The City's zoning code made no provision for individuals to request a reasonable accommodation from zoning and land use restrictions based on disability.
1346 *1346 Law
Plaintiffs bring claims under the Fair Housing Act, 42 U.S.C. § 3601 et seq., the American with Disabilities Act, 42 U.S.C. § 12131 et seq., and the 14th Amendment to the United States Constitution. I begin with Plaintiffs' Federal Fair Housing Act claim because I think that is where the crux of this case lies.
Standing
Plaintiffs assert they have standing to bring a claim under the FHA because they are disabled due to their recovering status. The City disagreed asserting, amongst other things, that the evidence supported the position that the recovering individuals could complete all major life activities. The FHA defines handicap with respect to an individual as having "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 3602(h). The existence of such handicap must be examined on a case-by-case basis. See Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 566, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999).[3] Major life activities include walking, learning, performing manual tasks, getting an apartment, being unable to perform a class of jobs, and caring for oneself. Rossbach v. City of Miami, 371 F.3d 1354, 1357-59 (11th Cir. 2004); U.S. v. S. Mgmt. Corp., 955 F.2d 914, 919 (4th Cir.1992). To substantially limit means a long-term, permanent restriction, or considerable. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 196, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002)(speaking to the definition of substantial as including considerable); Rossbach, 371 F.3d at 1357. The recovering individuals testified about the negative impact their addiction had on their lives, including preventing them from caring for themselves or keeping a home at times, and losing jobs and families. All of these things impacted their everyday lives in a significant way. All Individual Plaintiffs and current residents of Provider Plaintiffs testified, that at one time, they had because of their addiction been unable to perform one of these major life activities. For some the deprivation was long-term. For others the deprivation may have been shortterm, but repeated itself with frequency when he or she would relapse and again find themselves without their family, their home, their job, or ability to care for his or herself. The evidence established that the individuals involved suffered an impairment which qualified them as disabled under the FHA.
The position that recovering individuals can be considered disabled is supported both in case law and legislative 1347 history.[4]*1347 "As a medical matter, addiction is a chronic illness that is never cured but from which one may
nonetheless recover." S. Mgmt. Corp., 955 F.2d at 920. "Alcoholism, like drug addiction, is an `impairment' under the definitions of a disability set forth in the FHA, the ADA, and the Rehabilitation Act." Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46 (2d Cir.2002)("RECAP"). Congress intended to treat drug addiction as a significant impairment constituting a handicap unless excluded, such as by current drug use in accordance with 42 U.S.C. § 3602(h). See Lakeside Resort Enters., LP v. Bd. of Supervisors of Palmyra Township, 455 F.3d 154, 156 n. 5 (3d Cir. 2006); RECAP, 294 F.3d at 46; MX Group, Inc. v. City of Covington, 293 F.3d 326, 338-39 (6th Cir.2002); S. Mgmt. Corp., 955 F.2d at 919. The Fourth Circuit specifically spoke to the need for addicts to be given equal access to housing, instead of being denied housing on the basis of their constant craving and its accompanying dangers. S. Mgmt. Corp., 955 F.2d at 922. I do not pass on the question of a per se disability for recovering alcoholics or drug addicts. As a matter of fact I do not think a per se rule is appropriate in these circumstances where the court's obligation is to do a case-by-case evaluation to determine if an individual is handicapped. However, that does not preclude these individuals from satisfying the definition. Their testimony was moving and credible.

The definition of disability includes two other possibilities by which Plaintiffs can demonstrate their standing under the FHA, having had a record of the type of impairment discussed above, or being regarded as having such an impairment. 42 U.S.C. § 12102(2). In order to demonstrate that an individual is handicapped due to having had a record of an impairment, the individual must have satisfied the first definition at some point. See Burch v. CocaCola Co., 119 F.3d 305, 321 (5th Cir.1997). All the individuals who testified at trial had experienced active drug or alcohol addiction at one point in their lives. As discussed above, the Individual Plaintiffs and current residents had been homeless, unable to hold down a job, or take care of themselves during their active addiction. Active addiction and its recovery are not short-term problems. They are long-term and for many require permanent diligence to maintain their sobriety. Their addiction particularly in its active stages substantially limited major life activities. This evidence supported these individuals having met the first definition, at the very least during their active addiction. Therefore, even if the above analysis is incorrect as to the individuals currently satisfying the first definition, where during their active addiction they satisfied the first definition, Individual Plaintiffs have a record of such an impairment making them handicapped under the second definition of the FHA.
There are two additional points I would like to make regarding the matter of standing in this case. First, is that the Individual Plaintiffs are not current residents of Provider Plaintiffs. However, they did testify that if they were to relapse they would return to Provider Plaintiffs' residences for some period of time during their recovery after they completed detoxification. For cases brought under the FHA, standing is to be as broad as the Constitution permits. See Jackson v. Okaloosa, County, Fla., 21 F.3d 1531, 1537 (11th Cir.1994). Jackson involved a plaintiff's 1348 *1348 challenge to the site selection process regarding a public housing project. Id. Plaintiff was wait-listed for the project and stated her intention to probably move in once it was built. Id. In this case, Individual Plaintiffs stated their intention to return to Provider Plaintiffs' residences should they relapse, which is a constant significant risk for recovering individuals. This is a similar position to that of the plaintiff in Jackson. Given Individual Plaintiffs' stated intention to return upon the happening of a certain likely event and the broad policy of standing under the FHA, I conclude the Individual Plaintiffs have standing to challenge the City's action.[5]
The other point I want to make involves the propriety of Provider Plaintiffs' standing. FHA cases are often brought by a provider of housing on behalf of the residents it seeks to house. See Brandt v. Vill. of Chebanse, Ill., 82 F.3d 172, 173 (7th Cir.1996); Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781 (6th Cir.1996). Moreover, Provider Plaintiffs' status as a profit enterprise does not negate such standing. See Brandt, 82 F.3d at 173(case brought by residential housing developer); Smith & Lee Assocs., Inc., 102 F.3d at 781(suit brought by profit owner of group home). Accordingly, all parties to this action have standing to bring their FHA claims.
Merits of Plaintiffs' claims under the Fair Housing Act
This case tests the limits of the protection provided by the FHA and a municipality's ability to legislate in an effort to preserve the character of its residential neighborhoods. Legally this is a difficult case where Plaintiffs are protected by the FHA, but exactly how that protection impacts the City's acts is unclear. The case is made more difficult by its facts where the City claims it was attempting to do something that while possibly permissible under the law, is not what it did by passing the Ordinance. My conclusion in this case is that the City's actions challenged here are limited by the FHA, the question is how limited.
Plaintiffs argued that the City's ordinances are discriminatory and thus, in violation of the FHA. The City responded that it was merely trying to move commercial/medical uses out of residential areas. 42 U.S.C. § 3604 (f) of the FHA prohibits a public entity from discriminating against disabled persons by denying such persons the ability to live in a dwelling. The amendments to the FHA, which added handicapped individuals, were a statement by Congress of the commitment to end the unnecessary exclusion of individuals with disabilities from American mainstream where such exclusion was often based on generalizations and stereotypes of people's disabilities and the attendant threats of safety that often accompanied these generalizations. See Elliott v. City of Athens, Ga., 960 F.2d 975, 978 (11th Cir.1992)(discussing the House Report on the Fair Housing Amendments Act) abrogated by, City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995). Congress intended for the FHA to apply to zoning ordinances. See Larkin v. State of Mich. Dep't of Soc. Servs., 1349 89 F.3d 285, 289 (6th Cir.1996)(discussing *1349 the explicit intent of Congress to have the FHA apply to zoning laws). However, the FHA does not pre-empt or abolish a municipality's power to regulate land use and pass

zoning laws. See Hemisphere Bldg. Co., Inc. v. Vill. of Richton Park, 171 F.3d 437, 440 (7th Cir.1999); Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 603 (4th Cir.1997). "Land use restrictions aim to prevent problems caused by the `pig in the parlor instead of the barnyard.'" City of Edmonds, 514 U.S. at 732, 115 S.Ct. 1776 (quoting Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303 (1926)). The amendments to the FHA were intended to prohibit the use of zoning regulations to limit "the ability of [the handicapped] to live in the residence of their choice in the community." H.R.Rep. No. 100-711, 100th Cong., 2d Sess. 24 (1988), U.S.Code Cong. & Admin.News 1988, pp. 2173, 2185. The intersection between these two principles is where this case meets.
It is against this backdrop that I address Plaintiffs' claims. Plaintiffs challenge two provisions of the City's zoning code, Ordinance 4649 and Section 28-2. Plaintiffs' argument is that each ordinance on its own, and the two in combination effectively limit the ability of recovering individuals to live in residential areas of the City in violation of the FHA. There are two ways to prove a violation of the FHA. See Larkin, 89 F.3d at 289. First is by showing that the defendant was motivated by a discriminatory intent against the handicapped. Id. The second is where a defendant's actions are neutral, but have a discriminatory effect, thus having a disparate impact on the handicapped. Id. Plaintiffs argued they have proven a violation of the FHA under both avenues. This case does implicate both avenues. Plaintiffs' claim as to Ordinance 4649 is best analyzed under the discriminatory intent theory while Plaintiffs' claim as to Section 28-2 is most appropriately analyzed under the disparate impact theory. Accordingly, I will address them separately.
Ordinance 4649
I begin with Plaintiffs' challenge to Ordinance 4649. Ordinance 4649 defines substance abuse treatment facilities and requires them to be in the City's medical district or with a conditional permit in a motel/business district. An ordinance facially discriminates against the handicapped where it singles them out and applies different rules to them. Bangerter v. Orem City Corp., 46 F.3d 1491, 1500 (10th Cir.1995); Marbrunak, Inc. v. City of Stow, 974 F.2d 43, 46-47 (6th Cir.1992). As applied to this case, the question is not whether the City was specifically intending to discriminate against Plaintiffs, but rather whether the ordinance on its face treats recovering drug addicts and alcoholics different from non-handicapped individuals. See Larkin, 89 F.3d at 290 (discussing how a defendant's benign motive does not prevent a statute from being discriminatory on its face); see also Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)(discussing how discrimination against the handicapped is often the result of thoughtlessness, not particular offensive anger). The language of the Ordinance singles out recovering individuals where they are the individuals who would be residing in a substance abuse treatment facility. See McWright v. Alexander, 982 F.2d 222, 228 (7th Cir.1992)(discussing how discrimination against an individual because of his or her handicap is often aimed at an effect of the handicap rather than the handicap 1350 itself). While this does not mean that all recovering individuals live in a *1350 substance abuse treatment facility, there was no evidence, nor did anyone argue that non-recovering individuals live in substance abuse treatment facilities. Accordingly, Ordinance 4649 treats recovering individuals differently from non-recovering individuals where it requires the individuals who live in substance abuse treatment facilities, recovering individuals, to live in the City's medical zone or with conditional approval in a motel/business zone. This is sufficient to establish a prima facie case of discrimination. However, my analysis does not end here.
Next, I must determine if the City's differential treatment of recovering individuals is justified such that it is not in violation of the FHA. The Eleventh Circuit has not addressed the standard a governmental defendant must meet to justify disparate treatment under the FHA.[6] Therefore, I look to other circuits for guidance on what the City is required to prove to establish that this distinction is not discriminatory under the FHA. See McAbee v. City of Fort Payne, 318 F.3d 1248, 1252 (11th Cir.2003)(looking to other circuits for guidance as to what standard to apply where the Eleventh Circuit had not adopted one yet). Four United States Courts of Appeals have addressed this issue. Cmty. House, Inc. v. City of Boise, Idaho, 468 F.3d 1118 (9th Cir.2006); Larkin, 89 F.3d 285; Bangerter, 46 F.3d 1491; Familystyle of St. Paul, Inc. v. City of St. Paul, Minn., 923 F.2d 91 (8th Cir.1991). The Eighth Circuit was the first to develop a test to be used in these situations, but none of the other circuits confronted with the issue have chosen to follow the Eighth Circuit's analysis. In Familystyle, the Eighth Circuit adopted the rational relation test finding no FHA violation where a defendant demonstrated that its action was rationally related to a legitimate governmental interest. Two of the other three circuits which have addressed this issue determined that once a plaintiff has established an ordinance is facially discriminatory, a defendant can present one of two

possible justifications for the discriminatory ordinance: (1) legitimate public safety concerns; or (2) that the restriction benefits the protected class. Cmty. House, Inc., 468 F.3d at 1125 (9th Cir.); Bangerter, 46 F.3d at 1503-04 (10th Cir.). In refusing to use the rational relation test employed in Familystyle, the Tenth Circuit discussed how an equal protection analysis is misplaced where in an FHA claim a handicapped plaintiff is bringing a claim based on a statute of which he or she is the "direct object of the statutory protection." Bangerter, 1351 46 F.3d at 1503. The Ninth Circuit adopted the Tenth Circuit *1351 test arguing a similar distinction. It discussed how those protected by the FHA were not necessarily protected classes for constitutional purposes, thereby not making the rational relation test appropriate. Community House, Inc., 468 F.3d at 1125 (discussing how this standard is also more in line with the Supreme Court's analysis in Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991)). The Sixth Circuit did not adopt either the Bangerter or the Familystyle test, but instead stated that "in order for facially discriminatory statutes to survive a challenge under the FHAA, the defendant must demonstrate that they are `warranted by the unique and specific needs and the abilities of those handicapped persons' to whom the regulations apply." Larkin, 89 F.3d at 290 (quoting Marbrunak, Inc., 974 F.2d at 47). I agree that a rational relation test is not appropriate where the individuals bringing this statutory claim are the direct object of its protection, the protection of which appears to have been intended to be greater than that provided by the rational relation test. I agree that the presence of either of the Bangerter justifications would allow a facially discriminatory statute to survive an FHA challenge.
However, I am not sure that the Bangerter test includes all possible justifications. As discussed below, I recognize a municipality's interest in protecting the residential character of a neighborhood, as was argued strenuously here, and its ability to legislate such protection. While I agree with the City that this is a legitimate interest, I also recognize that this protection must be legislated with the needs of those protected by the FHA in mind.
Having articulated possible justifications that would allow Ordinance 4649 to survive Plaintiffs' FHA challenge, this issue becomes whether such justifications are present in this case. This is a difficult analysis where the City's primary justification was grouping compatible uses together, which is not one of the Bangerter justifications, nor is it a justification recognized by any of the other circuits that have addressed this issue. That being said, I will evaluate all justifications the City put forth for Ordinance 4649 in an effort to determine whether, even if in combination, they support the Ordinance and allow it to withstand Plaintiffs' challenge. There was some evidence at trial regarding public safety concerns[7] the City had about Provider Plaintiffs' residences. In Bangerter, the court pointed out that the statute itself states that "[n]othing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." Bangerter, 46 F.3d at 1503 (quoting 42 U.S.C. 3604(f)(9)). The legislative history indicates that generalized perceptions of threats to safety should not support discrimination. See H.R.Rep. No. 100-711, 1988 U.S.Code Cong. Admin.News at p. 2179. The residents spoke at the city council meeting about their fears that stemmed from Provider Plaintiffs' residences. However, the transcript and video tape of the meeting admitted at trial did not 1352 support of a finding that any safety *1352 justification for this Ordinance was supported by a direct threat to the safety and health of others more so than generalized perceptions. The City did not put forth any evidence regarding the relationship between the crime involved at the halfway houses and crime occurring at other nonhalfway house residences in the area. Accordingly, this evidence did not support a finding that Provider Plaintiffs' residences, or others that would fit the definition of substance abuse treatment facility, posed a direct threat to the health or safety of other individuals.
The City's main justification was that the Ordinance was passed to group together compatible uses, a common use of zoning ordinances. Specifically, the City's argument was that service providers or facilities that would meet the definition of a substance abuse treatment facility under the Ordinance, were commercial and medical in nature and therefore did not belong in a residential area. However, the only activity required to bring a service provider or facility within the purview of the Ordinance is that the service provider or facility require tenants to perform testing to determine if they are drug and alcohol free as a term of their tenancy. The language of the Ordinances[8] goes to a service provider or facility "used for room and board only and in which treatment and rehabilitation activities are provided at locations other than the primary residential facility, whether or not the facilities used for room and board and for treatment and rehabilitation are operated under the auspices of the

same provider. For purposes of this subparagraph (2), service providers or facilities which require tenants or occupants to participate in treatment and rehabilitation activities, or perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition of, or essential component of, the tenancy or occupancy shall be deemed to satisfy the `treatment and rehabilitation activities' component of the definition contained in this section." It is not clear how this condition of tenancy turns a dwelling into a commercial facility, or at least more of a commercial facility than any residence rented or leased to occupants which would be by definition a commercial facility where it is viewed with regard to a profit. The condition of tenancy would make no change to the outward appearance of the residence, be it a single family home or an apartment building. The City put forth no evidence that an apartment building that required its tenants to be drug tested would somehow negate the fact that those individuals were living in the apartment building, making it their home.[9] Instead, the City put forth evidence to establish that the residences offered by Provider Plaintiffs were more of a profit driven enterprise than a place where people actually lived.
1353 *1353 I do not disagree with the City's position on this point. However, Ordinance 4649 did not capture the use it was attempting to segregate. The City was looking at Provider Plaintiffs and the services they provided to recovering addicts, including a program with three different phases, drug testing on site, transportation, group therapy meetings, medication control, money control, Alcoholic Anonymous and Narcotics Anonymous meetings on site, curfews, room inspections, bed checks, and individual therapy. Recovering individuals spent limited time in each phase, requiring them to move from building to building. The City also looked at Provider Plaintiffs' business model where they were marketing themselves as unique recovery programs, had a large office use in the main facility, charged individuals by the week with no regard for what unit they were in or how many individuals were living in the unit, and kept deposits from individuals who relapsed regardless of how many times they had previously relapsed while staying with Provider Plaintiffs. The City found the combination of these uses and Provider Plaintiffs' business practices `commercial in nature. As I expressed at trial and earlier in this order, some of Provider Plaintiffs' business practices give me pause, particularly where Provider Plaintiffs are seeking protection from a statute which protects handicapped individuals, because many of the business practices employed by Provider Plaintiffs do not appear to serve the therapeutic needs of these handicapped individuals. However, questionable business practices aside, the Ordinance does not capture the commercial and medical uses that underlie the City's justification, nor did the City prove either or the Bangerter factors justified the passage of the Ordinance.
Instead, the Ordinance, which hinges the location of a housing provider in a residential zone to whether that housing provider requires its residents to be subjected to drug testing as part of his or her occupancy, substantially limits the housing options for recovering individuals in the City. Recovery from substance abuse is an ongoing struggle for many, which for a large number of such individuals may require at least some period of time living in a drug and alcohol free environment. Regan's testimony established the substantial risk of relapse recovering individuals face and their need to be in a supportive drug and alcohol free environment to decrease such risk. Regan testified that one can not absolutely determine if a living environment is drug and alcohol free unless its residents are drug tested. There was also testimony at trial, by Regan, and the recovering individuals, as to the role a group living arrangement plays in their recovery, including helping to keep them clean because of the transparency, but also providing them with less opportunities for loneliness, a major trigger for relapse. Other courts have acknowledged the role a group living arrangement plays in the recovery of substance abusers. See Corp. of the Episcopal Church in Utah v. West Valley City, 119 F.Supp.2d 1215, 1217-18 (D.Utah 2000); Oxford House, Inc. v. Town of Babylon, 819 F.Supp. 1179, 1183 (E.D.N.Y. 1993); U.S. v. Borough of Audubon, N.J., 797 F.Supp. 353, 358-59 (D.N.J.1991). The need for handicapped people to live in group arrangements for support or to pool caretaker staff has been described as essential. Brandt, 82 F.3d at 174; see also Smith & Lee Assocs., Inc., 102 F.3d at 795-96 (discussing the need to allow group homes for the elderly to have at least nine residents in them for economic viability). Such group living arrangements which are drug and alcohol free, thus 1354 necessitating drug testing, at the very least off site, fall *1354 within the purview of the Ordinance. Based on this evidence the restriction that a housing provider who requires drug testing as an essential part of a tenant's occupancy only provide housing in a medical district or possibly in a motel/business district cannot be seen as a restriction that benefits recovering individuals. Thereby, the City has limited the opportunities for recovering individuals to live in residential areas of Boca Raton.

As discussed above, the City argued the Ordinance was aimed at commercial and medical uses. The City's list of such uses is much longer than just drug testing. However, the Ordinance includes none of these other uses. The City argued the Ordinance did not capture a mere housing provider that required drug testing where the Ordinance only captured "service providers or facilities." The Ordinance does use this language, however the distinction between who imposes the requirement, the residents of the group living arrangement or their landlord appears to be without significance to the impact on the residential character of the neighborhood. For example, a entity which wanted to provide substance free housing to twenty recovering individuals in ten one-bedroom apartments complete with drug testing as part of their lease to insure the substance free component of their environment, and AA and/or NA meetings in the building's common area would have to provide such housing in the medical district or apply for a conditional use in a motel/business district. Yet, under the City's distinction a building housing 90 people in 30 apartments subject to the same drug testing requirement discussed above and having the same AA and/or NA meetings, could be in the residential zone so long as the residents themselves got together and agreed to put the restrictions on themselves and arrange for the AA and/or NA meetings themselves. It is not clear that the difference of who imposes the requirements on residents is significant to the analysis of whether the use is a commercial one.[10] The City put forth no evidence which demonstrated that a sober living arrangement provided by a third party destroys the residential character of a neighborhood more than a sober living arrangement organized by the residents themselves.[11] Based on the evidence presented, the City's distinction does not cure the Ordinance's discriminatory impact. This is not to say that the City is precluded from attempting to separate the commercial from the residential. As I stated earlier, Provider Plaintiffs' residences include a lot more services than drug testing, and perhaps more than is therapeutically necessary.

Therefore, my ruling regarding the Ordinance is not intended to limit the City's ability to regulate what it sees, and what I saw as well from the evidence, as a commercial operation. My concerns are similar to those discussed by the Supreme Court in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) where it stated:

1355

The regimes of boarding houses, fraternity houses, and the like present urban *1355 problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds.

A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one within Berman v. Parker, [348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954)] supra. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.

Boraas, 416 U.S. at 9, 94 S.Ct. 1536. The sheer volume of individuals Provider Plaintiffs are housing within a small geographic location contributes to setting Provider Plaintiffs' housing opportunities apart from the residences that surround it. This is in addition to the transitory nature of the housing where residents are shifted through different buildings depending on what phase of the program they are in. I recognize that Provider Plaintiffs' facilities are apartment buildings amidst other apartment building and therefore to the naked eye one may not see Provider Plaintiffs' buildings as the pig in the parlor. However, because of the congregation of Provider Plaintiffs' facilities and the multitude of services offered by Provider Plaintiffs, a closer examination would bring to light the difference between Provider Plaintiffs' facility and an average residential apartment building. As discussed in Boraas, the ability to protect the residential nature of a neighborhood is not limited to controlling the negatives that obviously do not conform with the area, but includes the ability to set apart areas where people make their home from the rest of the City. While I agree that recovering individuals need to be given the opportunity to live in group arrangements as discussed earlier, such arrangements need not include approximately 390 people in a group of buildings all within a quarter of a mile of each other. Once again the City's Ordinance does not directly address this concern. Even though I agree with the City's ability to protect the residential character of the neighborhood and Provider Plaintiffs' possible impact on that character in this case, the link between the Ordinance and the protection of the residential character of the neighborhood is not a direct one.

The City did not present sufficient evidence to justify the Ordinance based on legitimate public safety concerns or to demonstrate that the restriction imposed benefitted the recovering individuals. In this case, neither of the Bangerter justifications are present. In addition, the City's justification of grouping like uses together is not a sufficient justification where protecting the residential character of its neighborhoods could have been legislated in a less discriminatory way such that it did not substantially limit the availability of residential housing to recovering individuals.
Section 28-2
I must now turn to Section 28-2 of the City Code, the City's definition of family. The analysis regarding this Section is different than that of the Ordinance. Section 28-2 by its own terms does not refer to recovering individuals or substance abuse. Instead, Section 28-2 treats all individuals, handicapped and non-handicapped, provided they are unrelated or not within the Section's two exceptions, foster children and domestic servants, 1356 alike. Four non-handicapped non-related people *1356 cannot live in a single dwelling, just as four recovering individuals cannot live in a single dwelling. Therefore, this Section is more appropriately examined for its disparate impact on handicapped individuals. See RECAP, 294 F.3d at 52. A disparate impact analysis should be employed where a facially neutral section of the city code is examined to determine its differential impact on a protected group under the FHA. See RECAP, 294 F.3d at 52. To succeed on a disparate impact theory, plaintiffs must provide evidence that the neutral practice had a disproportionate impact on the protected class. RECAP, 294 F.3d at 52-53; 2922 Sherman Ave. Tenants' Ass'n v. D.C., 444 F.3d 673, 681 (D.C.Cir.2006). The question in this case is whether limiting the occupancy of a single dwelling in the City to three unrelated people has a disproportionate impact on recovering individuals.
Plaintiffs' argument at trial was that it did where recovering individuals often require the availability of group living arrangements as part of their recovery. The City argued that this provision does not violate the FHA where there are other possibilities for a group home of recovering individuals in a residential area of the City. The evidence at trial supported the conclusion that recovering individuals often need group living arrangements as part of their recovery for a variety of reasons. Two of the reasons, as discussed by Regan, are decreasing the possibility of relapse by decreasing the feelings of loneliness and increasing the supervision due to the accountability present when people live together. Regan's testimony has previously supported such findings. See Town of Babylon, 819 F.Supp. at 1183. The last reason, as discussed earlier in this order, is the economic viability of providing housing to handicapped people. This reason has also been recognized in the law. Brandt, 82 F.3d at 174; Smith & Lee Assocs., Inc., 102 F.3d at 795-96. Plaintiffs' position is further bolstered by an examination of the Oxford House model. Oxford Houses, the work of a non-profit organization which helps recovering individuals establish group sober homes, require a minimum of six residents to receive a charter for the proposed home. The Oxford House Manual, available at http:// www.oxfordhouse.org. The City argued that groups of recovering individuals could live together under other provisions of the City Code. For example, the City pointed to the community residential homes allowed for by the City Code and detailed in Florida Statute Section 419.001. However, the Florida statute requires community residential homes to be licensed by the Agency for Health Care Administration or that the handicapped residents of such a home be a client of one of four different state agencies. Fla. Stat. § 419.001. Limiting the possibility of recovering individuals to live in a residential area only if they become licensed or are clients of a state agency limits their housing options. Based on the foregoing, I agree with Plaintiffs that Section 28-2 impacts recovering individuals more than non-recovering individuals.
Once Plaintiffs establish this disproportionate impact on the handicapped, the burden is shifted to the City to prove that the action furthered "a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect." Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 936 (2d Cir.1988); See Town of Babylon, 819 F.Supp. at 1183. The City argued that this definition of family 1357 furthered a variety of governmental interests, including controlling population *1357 density and preserving the single family character of the City's residential areas. I agree that the preservation of a residential character is a legitimate governmental interest. However, in this case the City did not demonstrate that there was no less discriminatory alternative means to accomplish this goal. Section 28-2 makes no exception for a group home for recovering individuals who merely want to live in a single family home and would not impact the residential character of the neighborhood. Section 28-2 provides two other exceptions and the City put forth no evidence to

explain why allowing a similar exception for recovering individuals would destroy the residential character of" the neighborhood.
The no less discriminatory means is further exemplified by the City's lack of any established procedure by which handicapped individuals could request a reasonable accommodation to the occupancy limitation. Discrimination under the FHA includes denying or making a dwelling unavailable because of a handicap, including refusing to make reasonable accommodation in rules, policies, practices, or services such that would be necessary to afford such person the opportunity to use and enjoy a dwelling. See 42 U.S.C. ,§ 3604(f)(3)(B). There was no evidence that a reasonable accommodation to Section 28-2 was available. The City put forth evidence of a Petition for Special Case Approval form which it argued an individual would use to request for reasonable accommodation. Neither reasonable accommodation, nor disability were Mentioned on the form. There was no evidence of such form having been used historically by handicapped individuals to request a reasonable accommodation. There was no evidence that the form was referenced anywhere else in the City Code that dealt with reasonable accommodation requests. Where Section 28-2 itself provides no exception for handicapped individuals and the City's Code has no clearly established procedure that would allow a handicapped individual, group of individuals, or provider of group homes, to request a reasonable accommodation of the occupancy limitation, the City has not demonstrated that no less discriminatory alternative to Section 28-2 would serve the same interest. Therefore, Section 28-2 as written violates the FHA.
This is not to say that the City's occupancy limitation of three unrelated people is not permitted should the City legislate it in a less discriminatory fashion. The Plaintiffs argued that City of Edmonds suggests that such caps violate the FHA. I do not read City of Edmonds to make such suggestion. City of Edmonds, 514 U.S. 725, 115 S.Ct. 1776. City of Edmonds held that the type of limitation used here, "the family-defining kind," is not exempted from the FHA by 42 U.S.0 § 3607(b)(1). Id. at 728, 115 S.Ct. 1776. Instead, the Court held, the exemption only applies to "total occupancy limits, i.e., numerical ceilings that serve to present overcrowding in living quarters." Id. The question before me is not whether Section 28-2 falls within 42 U.S.C. § 3607(b)(1)'s purview.
I do not think the FHA is violated merely by having a cap on the number of unrelated individuals who can live in a single family dwelling. Furthermore, I find nothing wrong with the number three that the City has chosen. A city must draw a line somewhere. The number chosen is in line with the average occupants per unit within the City. 1358 The number of individuals per unit on average was less than three. As eloquently stated by Justice *1358 Holmes, "[n]either are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law." Irwin v. Gavit, 268 U.S. 161, 45 S.Ct. 475, 476, 69 L.Ed. 897 (1925); see Boraas, 416 U.S. at 8, 94 S.Ct. 1536 (stating that every line a legislature draws leaves out some that might as well have been included, the use of such discretion is a legislative function); see also Smith & Lee Assocs., Inc., 102 F.3d at 797 n. 13 (discussing the fine line drawn between a group home of nine residents not substantially altering the residential character of a single-family neighborhood while a twelve resident group home would more likely do so). While I find no legal problem with the cap of three unrelated individuals per se, the limitation without any exception for handicapped individuals or an established reasonable accommodation procedure violates the FHA.
This is not to say that recovering individuals should have a blanket exemption from a cap on the number of unrelated people that can live in a dwelling in a residential district of the City. Nor is it to say that the City cannot limit Provider Plaintiffs' units to three unrelated people per unit. There was testimony at trial that Provider Plaintiffs could, be profitable and have therapeutic success with only three people per apartment. All of this can be considerations in attempting legislate a capacity limitation that complies with the FHA.
My ruling here is not intended to limit the City's ability to regulate the residential character of its neighborhoods. As discussed above, I agree with the City that preservation of the residential character of its neighborhoods is a legitimate governmental interest. However, the impact of these two zoning sections limits the ability of recovering individuals to obtain housing in residential areas of Boca Raton. They did not with little, if any, evidence as to how the presence of recovering individuals destroys the residential character. The City may regulate the residential character of its neighborhoods, so long as they devise a means to protect the ability of recovering people to live in the residential neighborhoods in a meaningful way which takes in mind their need for a group living substance free environment.

Remedies
At the conclusion of the bench trial, I asked each of the parties, and the Department of Justice, who has a related case pending against the City, to submit recommendations as to an appropriate remedy in this case. I told the parties "I would like to accomplish the purpose but do it as narrowly[12] as possible." Despite this request, both parties essentially argued their positions again, including suggesting the broadest remedy available to each of them. I decline to adopt any of the positions offered given the facts of the case and the precedent on the issue of remedies.
Having found that the Ordinance and Section 28-2 violate the FHA, the question before me is whether they should both be stricken, as Plaintiffs suggest, or if I should more narrowly tailor the relief as I alluded to at the 1359 conclusion of the bench *1359 trial. The precedent supports a narrow tailoring. See Ayotte v. Planned Parenthood of N. New England, et al., 546 U.S. 320, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006). In Ayotte, Justice O'Connor addressed a similar predicament. The Court specifically held "that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief." Ayotte, 126 S.Ct. at 964. In this case I attempt to achieve the result I think is necessary as narrowly as possible.
As to Ordinance 4649, the primary difficulties with this Ordinance involve the second definition and its subsection. I find no violation of the FHA by the City's first definition, those service providers or facilities that are "licensed or required to be licensed pursuant to Section 397.311(18) Fla. Stat." This statute details various licensable service components and defines an entity as a licensed service provider if it offers substances abuse impairment services through one or more such licensable service components. Nothing in the statute indicates that by not allowing a licensed service provider to be located in a residential area, the City is precluding recovering individuals from living in residential areas where recovering individuals can reasonably live in residential areas of the City without needing two or more of the licensable service components listed in Section 397.311(18). Accordingly, section one of Ordinance 4649 shall remain in effect. While I have ideas, some of which are expressed herein and others of which were discussed at trial, about how section two of the Ordinance could be written to better serve the City's justification and comply with the FHA, I decline to re-write the Ordinance. My decision is based on the roles of the legislature and judiciary, but also on a principle Justice O'Connor discussed in Ayotte. Courts should not determine to whom a statute should apply where a legislature has cast its net widely because this would put the judiciary in the legislature's role. See Ayotte, 126 S.Ct. at 968. Therefore, I decline to parse the second definition or to add my own words to it. The City is enjoined from enforcing section two of Ordinance 4649.
Section 28-2 is not susceptible to parsing either. However, given my discussion above, I am going to temporarily enjoin enforcement of section 28-2 against recovering addicts until such time as the City passes a reasonable accommodation procedure. The City must provide a process by which a request for reasonable accommodation on the basis of one's disability could be requested.[13] Accommodations are to give consideration for the limitations caused by the disability. This remedy does not enjoin the City against enforcing this provision of the City Code against Provider Plaintiffs. I reach this conclusion not only because of my position that while recovering individuals need an accommodation to allow for group living situations, I found no evidence which persuaded me that this maxim requires Provider Plaintiffs to have more than three individuals in each of their units. As discussed 1360 above there was evidence that Provider Plaintiffs' facilities can be therapeutically *1360 successful and profitable with three individuals per unit.
My position as to Provider Plaintiffs being excluded from this temporary enjoinment is also based on Provider Plaintiffs' unclean hands where they previously agreed to comply with section of the City Code demonstrating their ability to do so and continue to offer housing to recovering individuals. Misconduct by a plaintiff which impacts the relationship between the parties as to the issue brought before the court to be adjudicated can be the basis upon which a court can apply the maxim of unclean hands. See Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 863 (11th Cir.1979). The maxim of `he who comes into equity must come with clean hands' has been said to close the door of equity to a litigant tainted by inequitableness as to the matter about which the litigant seeks relief. See Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed. 1381 (1945). This principle requires the litigant to act "fairly and without fraud or deceit as

to the controversy in issue." Id. at 814-15, 65 S.Ct. 993. Where Provider Plaintiffs can continue to provide housing to recovering individuals while complying with Section 28-2 and they previously agreed to, I find it unnecessary to enjoin enforcement against them.
Damages
As to damages, the Individual Plaintiffs asserted that their injury included the humiliation of community disdain, the compromise of their anonymity as to their recovering status, and the stress of possibly losing their sober housing. I do not doubt the humiliation the Individual Plaintiffs felt as they listened to the city council meeting where the Ordinance was addressed. However, many of them did not even attend the meeting. Their testimony regarding their emotional harm was conclusory and was not specific such that it convinced me of the nature and extent of their emotional harm. See, e.g., Bailey v. Runyon, 220 F.3d 879, 880-81 (8th Cir.2000)(discussing how a plaintiffs own testimony can be sufficient but is not necessarily the sine qua non to establishing evidence of emotional harm). Plaintiffs did not put forth any evidence of ramifications of their emotional distress. See, e.g., Price v. City of Charlotte, N.C., 93 F.3d 1241, 1254-56 (4th Cir.1996). The City was required to hold the public meeting and allow members of the public to speak to the Ordinance. See Fla. Stat. § 166.041. In this case, I find the statements made at a democratic function were not sufficient to establish injury. The City delayed application of the Ordinance until 18 months after the rendition of a final non-appealable order in this case. The Individual Plaintiffs did not have to suffer the loss of sober housing and have had ample opportunity to address such a possibility where this lawsuit has been pending for over three years. I do not find Individual Plaintiffs established a concrete injury sufficient to sustain a compensatory damage award.
Similarly, the damages claimed by Provider Plaintiffs are, unwarranted where they are speculative. A damage award must be based on substantial evidence, not speculation. See Keener v. Sizzler Family Steak Houses, 597 1361 F.2d 453, 457 (5th Cir.1979).[14] Provider Plaintiffs claimed lost revenues where they were *1361 unable to grow their business due to the uncertainty of this litigation, mainly premised on their inability to obtain financing for another apartment building due to this litigation. Provider Plaintiffs presented a damages expert. However, he relied on an appraisal price of the building with no evidence to establish Provider Plaintiffs could have bought the building at that price. There was no evidence regarding the listing price of the building and the seller's agreement to Provider Plaintiffs' price. There was also no evidence regarding the increased demand for the type of housing Provider Plaintiffs provided such that they would be able to fill another building. In sum, the evidence was speculative that Provider Plaintiffs would have made the profits articulated, but for the Ordinance and Section 28-2.
Despite not having found sufficient evidence to establish a need for compensatory damages, I do think that Plaintiffs are entitled to an award of nominal damages. "Nominal damages are a trifling sum awarded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or breach of the defendant's duty, or in case where, although there has been a real injury, the plaintiffs evidence fails to show its amount." BLACK'S LAW DICTIONARY 392 (6th ed.1990). While the Eleventh Circuit has stated that merely a violation of a purely statutory right does not mandate an award of nominal damages for such statutory violation, it has not precluded such an award where the district court finds it appropriate. See Walker v. Anderson Elec. Connectors, 944 F.2d 841, 845 (11th Cir.1991). The Supreme Court has recognized the role that nominal damages play in cases where there is no concrete damage to compensate, but it is important to observe an individuals' rights. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n. 11, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). The Sixth Circuit has stated that at a minimum an award of nominal damages would be appropriate where a plaintiff proved a violation of the FHA and that he suffered a nonquantifiable injury as a result. See Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224 (6th Cir.2003); see also Baltimore Neighborhoods, Inc. v. LOB, Inc., 92 F.Supp.2d 456, 464 (D.Md.2000)(finding an award of nominal damages appropriate in a violation of the FHA case where plaintiff failed to show actual damage). Plaintiffs did not present evidence sufficient to sustain a damage award. However, this should not detract from the finding that the City violated the FHA. This is particularly true where as discussed above the statutory claim which Plaintiffs bring entitles them to greater protection than their constitutional rights would provide to a similar claim and nominal damages are required for a violation of constitutional rights. See Walker, 944 F.2d at 845(discussing how Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) applies only to violations of constitutional

magnitudes). In order to not take away the importance of such violation, I conclude that an award of nominal damages is appropriate.
Accordingly, it is hereby ORDERED AND ADJUDGED that Judgment is entered in favor of Plaintiffs as to their Federal Fair Housing Act claims. Judgment is entered in favor of Plaintiffs against Defendant in the amount of 1362 $1.00 as to *1362 each Plaintiff. It is FURTHER ORDERED AND ADJUDGED that the City is enjoined from enforcing section 2 of Ordinance 4649 and is enjoined from enforcing Section 28-2 as to recovering individuals until such time as the City passes a reasonable accommodation procedure. Plaintiffs' remaining claims are dismissed. Judgement shall be entered in accordance with this Order.
[1] Residents of Provider Plaintiffs paid rent by the week, rather than on a monthly basis. There was testimony that at least one individual relapsed multiple times in a one-month span, allowing Manko to keep the individual's deposit each time. This testimony was further supported by Provider Plaintiffs' damage expert who when calculating lost profits included over ten percent of Provider Plaintiff's total income as that derived from lost deposits.
[2] Manko's position at trial was that each bedroom needed to have two people in it to be most therapeutically effective. This position made Section 28-2 applicable to most of Manko's units where most of the apartments in his apartment buildings had more than one bedroom.
[3] While the Kirkingburg case dealt with the American with Disability Act, as courts have noted the definitions under the two acts, one of disability and the other using the term handicap, are "almost verbatim." Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). Accordingly, I will use the terms and applicable analyses interchangeably.
[4] This position is also supported by 28 C.F.R. § 35.104(4)(1)(ii) which specifically references drug addiction and alcoholism as one meaning of physical or mental impairment in regards to nondiscrimination on the basis of disability in state and local government services. This section of the Code of Federal Regulations also directly addresses individuals who have successfully completed a rehabilitation program. 28 C.F.R. § 35.131 (a)(2) states "[a] public entity shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in the current use of drugs and who& mdash;" is participating in a supervised rehabilitation program or successfully completed a rehabilitation program.
[5] This is also supported by the statute which talks about who may bring a suit under the FHA as an aggrieved person which is defined to include any person who "believes that such person will be injured by a discriminatory housing practice that is about to occur." 42 U.S.G. § 3602(i)(emphasis added).
[6] In a recent unpublished opinion, the Eleventh Circuit employed the test from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) in an FHA context. See. Boykin v. Bank of Am. Corp., 162 Fed.Appx. 837 (11th Cir.2005). However, the facts of Boykin are substantially different than those in the present case. In Boykin, the plaintiff was challenging a bank's treatment of her loan application. Therefore, the case involved a discriminatory act during a residential real-estate related transaction against an individual being established through circumstantial evidence. This case involves two pieces of legislation passed by a City and a facial discrimination challenge. Plaintiffs' claims do not rely on circumstantial evidence, but instead relied on the City's legislation and its impact on handicapped individuals. Therefore, the instant situation is not sufficiently analogous to the facts of Boykin to cause me to determine that the Eleventh Circuit would employ a McDonnell Douglas test here. See Cmty. House, Inc. v. City of Boise, Idaho, 468 F.3d 1118, 1124 (9th Cir.2006)(discussing how the McDonnell Douglas test is inapplicable to facial discrimination challenges under the FHA).
[7] The evidence consisted of a memorandum from the Chief of Police of the City detailing cases involving fatalities at the subject properties in a year and a half period and a list of incidents involving halfway houses in the City.
[8] The Ordinance also includes in its definition of substance abuse treatment facilities a service provider or facility that is "[l]icensed or required to be licensed pursuant to F.S. § 397.311(18)." Florida Statute Section 397.311(18) defines "Licensed service provider" as "a public agency under this chapter, a private for-profit or not-

for-profit agency under this chapter, a physician or any other private practitioner licensed under this chapter, or a hospital that offers substance abuse impairment services through one or more of the following licensable service components" and then goes on to list such components. As discussed in further detail in the remedies section of this order, I conclude that this section of the Ordinance can remain.
[9] Even the City's planning and zoning director testified that Provider Plaintiffs' apartment buildings look just like an apartment building.
[10] As discussed in the Joint Statement of the Department of Justice and the Department of Housing and Urban Development, group homes are often provided by an organization that provides housing and various services for individuals in the group homes. See Joint Statement of the Department of Justice and the Department of Housing and Urban Development, Group Homes, Local Land Use, and the Fair Housing Act available at http://www. usdoj.gov/crt/housing/final8_1.htm.
[11] See supra n. 9.
[12] I went further to explain that "It doesn't help me to say just strike everything and enjoin everything. . . . I need something better than that. And the same thing goes for the city. You know, the more specificity 0907 in fact, even 0907 if you were going to deal with the ordinances, specific excisements, if that's how we would handle it. And if there's procedure that you would suggest I order, a specific language. You know, concepts aren't as much helpful at this point to me as language.
[13] As discussed in the Joint Statement, local governments should "make efforts to insure that the availability of [reasonable accommodation request] mechanisms is well known within the community." Joint Statement at page 4. There was no evidence that the Petition for Special Case Approval form was well known as the avenue to a reasonable accommodation. Instead, the testimony was that the Petition for Special Case Approval form was a catch all application.
[14] Decisions of the United States Court of Appeals for the Fifth Circuit that as existed on September 30, 1981 are binding on the United States Court of Appeals for the Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.1981).
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 Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 1 of 23
CASREF, CLOSED, LRJ
U.S. District Court Southern District of Florida (West Palm Beach) CIVIL DOCKET FOR CASE #: 9:03−cv−80178−DMM

Jeffrey O, et al v. City of Boca Raton Assigned to: Judge Donald M. Middlebrooks Referred to: Magistrate Judge Linnea R. Johnson (Settlement) Demand: $0
Case in other court: USCA, 07−14478−D
Cause: 42:12182 Americans with Disabilities Act
Plaintiff

Date Filed: 03/07/2003 Date Terminated: 02/28/2007 Jury Demand: None Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

Jeffrey O TERMINATED: 10/31/2003

represented by James Kellogg Green James K. Green 222 Lakeview Avenue Suite 1650 Esperante West Palm Beach, FL 33401 561−659−2029 Fax: 655−1357 TERMINATED: 10/31/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William King Hill Bilzin Sumberg Baena Price &Axelrod 200 S Biscayne Boulevard Suite 2500 Miami, FL 33131−2336 305−350−7202 Fax: 351−2216 Email: whill@bilzin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Michael Doe TERMINATED: 11/13/2003

represented by James Kellogg Green (See above for address) TERMINATED: 11/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William King Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Todd C

represented by James Kellogg Green James K. Green 222 Lakeview Avenue Suite 1650 Esperante West Palm Beach, FL 33401 561−659−2029 Fax: 655−1357 Email: jameskgreen@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Doug B

represented by

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 2 of 23

James Kellogg Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
William F TERMINATED: 11/13/2003

represented by James Kellogg Green (See above for address) TERMINATED: 11/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William King Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Steve L TERMINATED: 11/05/2003

represented by James Kellogg Green (See above for address) TERMINATED: 11/05/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Peter B TERMINATED: 10/31/2003

represented by James Kellogg Green (See above for address) TERMINATED: 10/31/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William King Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Regency Properties of Boca Raton, Inc a Florida corporation

represented by Gabriel Ernesto Nieto Rasco Klock et al. 283 Catalonia Avenue Second Floor Coral Gables, FL 33134 305 476−7100 Fax: 305 476−7102 Email: gnieto@rascoklock.com TERMINATED: 06/09/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gerry S. Gibson Reeder &Reeder P.A. 250 S. Central Blvd. Suite 200 Jupiter, FL 33458 561−575−9871 Fax: 561−575−9765 Email: gerry@reederandreeder.com TERMINATED: 06/09/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

JuanCarlos Antorcha

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 3 of 23

Rasco Klock 283 Catalonia Avenue 2d Floor Coral Gables, FL 33134 (305) 476−7105 Fax: (305) 476−7102 Email: jantorcha@rascoklock.com TERMINATED: 06/09/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Challen Berg , Jr. Florida Justice Institute 100 SE 2nd Street 3750 Miami Tower Miami, FL 33131−2309 305−358−2081 Fax: 305−358−0910 Email: rberg@floridajusticeinstitute.org TERMINATED: 06/09/2005 LEAD ATTORNEY

William King Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Awakenings of Florida, Inc a Florida corporation

represented by Gabriel Ernesto Nieto (See above for address) TERMINATED: 06/09/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gerry S. Gibson (See above for address) TERMINATED: 06/09/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Challen Berg , Jr. (See above for address) TERMINATED: 06/09/2005 LEAD ATTORNEY

William King Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
City of Boca Raton a Florida municipal corporation

represented by Diana Grub Frieser City of Boca Raton 201 West Palmetto Park Road Boca Raton, FL 33432 561−393−7716 Fax: 393−7780 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jamie Alan Cole

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 4 of 23

Weiss Serota Helfman Pastoriza et al 200 E Broward Boulevard Suite 1900 Fort Lauderdale, FL 33301 954−763−4242 Fax: 764−7770 Email: jcole@wsh−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Harris Mandel Weiss Serota Helfman Pastoriza et al 200 E Broward Boulevard Suite 1900 Fort Lauderdale, FL 33301 954−763−4242 Fax: 954−764−7770 Email: mmandel@wsh−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Bobby Hoover

represented by James Kellogg Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/07/2003 03/07/2003 03/31/2003 04/04/2003
04/23/2003 05/01/2003
05/02/2003
05/19/2003 05/19/2003

# Docket Text
1 COMPLAINT filed; FILING FEE $150.00 RECEIPT #717873; A−7 Magistrate Judge Linnea R. Johnson (at, Deputy Clerk) (Entered: 03/10/2003)
2 SUMMONS() issued for City of Boca Raton (at, Deputy Clerk) (Entered: 03/10/2003)
3 UNOPPOSED MOTION by City of Boca Raton to extend time to respond to complaint (at, Deputy Clerk) (Entered: 04/01/2003)
4 ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO COMPLAINT granting [3−1] motion to extend time to respond to complaint set answer due for 4/23/03 for City of Boca Raton (Signed by Judge James C. Paine on 4/4/03) [EOD Date: 4/4/03] (at, Deputy Clerk) (Entered: 04/04/2003)
5 MOTION with memorandum in support by City of Boca Raton to dismiss complaint (at, Deputy Clerk) (Entered: 04/24/2003)
6 MOTION with memorandum in support by Jeffrey O, Michael Doe, Todd C, Doug B, William F, Steve L, Peter B, Regency Properties, Awakenings of Florid to extend time to respond to defendant's motion to dismiss (at, Deputy Clerk) (Entered: 05/02/2003)
7 ORDER GRANTING PLAINTIFFS' MOTION FOR 10 DAY EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION TO DISMISS granting [6−1] motion to extend time to respond to defendant's motion to dismiss Response to motion [5−1] motion to dismiss complaint Plaintiffs shall have an additional ten (10) days in which to respond (Signed by Judge James C. Paine on 5/2/03) [EOD Date: 5/5/03] (at, Deputy Clerk) (Entered: 05/05/2003)
8 NOTICE of attorney appearance for Regency Properties, Awakenings of Florid by Randall Challen Berg Jr. (at, Deputy Clerk) (Entered: 05/19/2003)
9 UNOPPOSED MOTION by Jeffrey O, Michael Doe, Todd C, Doug B, William F, Steve L, Peter B, Regency Properties, Awakenings of Florid to extend time to respond to motion to dismiss complaint (Former Deputy Clerk) (Entered: 05/20/2003)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 5 of 23

05/23/2003
05/27/2003 05/30/2003
06/06/2003 06/06/2003 06/13/2003 06/20/2003 06/27/2003 07/08/2003
07/14/2003 07/16/2003
07/29/2003 07/29/2003 08/01/2003

10 ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO MOTION TO DISMISS COMPLAINT granting [9−1] motion to extend time to respond to motion to dismiss complaint Response to motion reset to 5/27/03 for [5−1] motion to dismiss complaint (Signed by Judge James C. Paine on 5/23/03) [EOD Date: 5/27/03] (at, Deputy Clerk) (Entered: 05/27/2003)
11 UNOPPOSED MOTION with memorandum in support by Jeffrey O, Michael Doe, Todd C, Doug B, William F, Steve L, Peter B, Regency Properties, Awakenings of Florid to extend time to respond to motion to dismiss (at, Deputy Clerk) (Entered: 05/28/2003)
12 ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO MOTION TO DISMISS COMPLAINT granting [11−1] motion to extend time to respond to motion to dismiss Response to motion reset to 5/30/03 for [5−1] motion to dismiss complaint (Signed by Judge James C. Paine on 5/30/03) [EOD Date: 6/2/03] (at, Deputy Clerk) (Entered: 06/02/2003)
13 MOTION with memorandum in support by Jeffrey O, Michael Doe, Todd C, Doug B, William F, Peter B to proceed anonymously (at, Deputy Clerk) (Entered: 06/06/2003)
14 FIRST AMENDED COMPLAINT by Jeffrey O, Michael Doe, Todd C, Doug B, William F, Peter B , (Answer due 6/16/03 for City of Boca Raton) amending [1−1] complaint (at, Deputy Clerk) (Entered: 06/09/2003)
15 Joint Scheduling Report of Scheduling Meeting by Jeffrey O, Michael Doe, Todd C, Doug B, William F, Peter B, Regency Properties, Awakenings of Florid, City of Boca Raton (at, Deputy Clerk) (Entered: 06/16/2003)
16 UNOPPOSED MOTION by City of Boca Raton to extend time to respond to first amended complaint , and to proceed anonymously (at, Deputy Clerk) (Entered: 06/23/2003)
17 Initial Disclosures Pursuant to Rule 26. FRCP by City of Boca Raton (at, Deputy Clerk) (Entered: 06/30/2003)
18 ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO FIRST AMENDED COMPLAINT AND MOTION TO PROCEED ANONYMOUSLY granting [16−1] motion to extend time to respond to first amended complaint, granting [16−2] motion to proceed anonymously Response to motion reset to 7/15/03 for [13−1] motion to proceed anonymously (Signed by Judge James C. Paine on 7/7/03) [EOD Date: 7/9/03] (at, Deputy Clerk) (Entered: 07/09/2003)
19 UNOPPOSED MOTION by City of Boca Raton to extend time to respond to amended complaint and to motion to proceed anonymously (at, Deputy Clerk) Modified on 07/15/2003 (Entered: 07/15/2003)
20 ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO FIRST AMENDED COMPLAINT AND MOTION TO PROCEED ANONYMOUSLY granting [19−1] motion to extend time to respond to amended complaint and to motion to proceed anonymously set answer due for 7/29/03 for City of Boca Raton (Signed by Judge James C. Paine on 7/16/03) [EOD Date: 7/17/03] (at, Deputy Clerk) (Entered: 07/17/2003)
21 MEMORANDUM by City of Boca Raton in opposition to [16−2] motion to proceed anonymously (Former Deputy Clerk) (Entered: 07/30/2003)
22 MOTION with memorandum in support by City of Boca Raton to dismiss amended complaint (Former Deputy Clerk) (Entered: 07/30/2003)
23 NOTICE by Regency Properties to take deposition of Leif J. Ahnell 9/17/03 at 10:00 (tb, Deputy Clerk) (Entered: 08/04/2003)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 6 of 23

08/01/2003 08/01/2003 08/01/2003 08/01/2003 08/01/2003 08/01/2003 08/01/2003 08/05/2003 08/07/2003 08/18/2003
08/22/2003
08/25/2003 08/25/2003 09/02/2003 09/02/2003 09/02/2003 09/02/2003 09/11/2003 09/15/2003

24 NOTICE by Regency Properties to take deposition of Carmen Annunziato 9/10/03 at 10:00 (tb, Deputy Clerk) (Entered: 08/04/2003)
25 NOTICE by Regency Properties to take deposition of Jorge Camejo 9/11/03 at 10:00 (tb, Deputy Clerk) (Entered: 08/04/2003)
26 NOTICE by Regency Properties to take deposition of Ruby Childers 9/16/03 at 10:00 (tb, Deputy Clerk) (Entered: 08/04/2003)
27 NOTICE by Regency Properties to take deposition of Ruby Childers 9/16/03 at 10:00 (tb, Deputy Clerk) (Entered: 08/04/2003)
28 NOTICE by Regency Properties to take deposition of Carmen Annunziato 9/10/03 at 10:00 (tb, Deputy Clerk) (Entered: 08/04/2003)
29 NOTICE by Regency Properties to take deposition of Leif J. Ahnell 9/17/03 at 10:00 (tb, Deputy Clerk) (Entered: 08/04/2003)
30 NOTICE by Regency Properties to take deposition of Jorge Camejo 9/11/03 at 10:00 (tb, Deputy Clerk) (Entered: 08/04/2003)
31 MOTION by All Plaintiffs to extend time to respond to defendant's motion to dismiss first amended complaint (dg, Deputy Clerk) (Entered: 08/06/2003)
32 AGREED MOTION by All Plaintiffs to extend time to reply city's memorandum of law in opposition to motion to proceed anonymously (at, Deputy Clerk) (Entered: 08/08/2003)
33 ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION FOR EXTENSION granting [31−1] motion to extend time to respond to defendant's motion to dismiss first amended complaint Response to motion reset to 8/25/03 for [22−1] motion to dismiss amended complaint (Signed by Judge James C. Paine on 8/13/03) [EOD Date: 8/18/03] (at, Deputy Clerk) (Entered: 08/18/2003)
34 ORDER ON PLAINTIFFS' AGREED MOTION FOR EXTENSION OF TIME TO REPLY TO CITY'S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF RESIDENTS' MOTION TO PROCEED ANONYMOUSLY granting [32−1] motion to extend time to reply city's memorandum of law in opposition to motion to proceed anonymously Reply to Response to Motion reset to 8/25/03 for [13−1] motion to proceed anonymously (Signed by Judge James C. Paine on 8/20/03) [EOD Date: 8/25/03] (at, Deputy Clerk) (Entered: 08/25/2003)
35 RESPONSE by All Plaintiffs to [22−1] motion to dismiss amended complaint (at, Deputy Clerk) (Entered: 08/26/2003)
36 REPLY by All Plaintiffs to response to [13−1] motion to proceed anonymously (at, Deputy Clerk) (Entered: 08/26/2003)
37 RE−NOTICE by Regency Properties, Awakenings of Florid to take deposition of Carmen Annunziato on 9/10/03 at 10:00 (dg, Deputy Clerk) (Entered: 09/03/2003)
38 RE−NOTICE by Regency Properties, Awakenings of Florid to take deposition of Jorge Camejo on 9/11/03 at 10:00 (dg, Deputy Clerk) (Entered: 09/03/2003)
39 RE−NOTICE by Regency Properties, Awakenings of Florid to take deposition of Ruby Childers on 9/16/03 at 10:00 (dg, Deputy Clerk) (Entered: 09/03/2003)
40 RE−NOTICE by Regency Properties, Awakenings of Florid to take deposition of Lief J. Ahnell on 9/19/03 at 2:30 (dg, Deputy Clerk) (Entered: 09/03/2003)
41 UNOPPOSED MOTION by City of Boca Raton to extend time to serve reply to plaintiffs' response to motion to dismiss first amended complaint (at, Deputy Clerk) (Entered: 09/12/2003)
42 ORDER ON DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO SERVE REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS FIRST AMENDED COMPLAINT granting [41−1] motion to extend time to serve reply to plaintiffs' response to motion to dismiss first amended complaint Reply to Response to Motion reset to 9/26/03 for [22−1] motion to dismiss amended complaint (Signed by Judge James C. Paine on 9/12/03) [EOD

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 7 of 23

09/26/2003 10/08/2003 10/16/2003 10/20/2003 10/21/2003 10/21/2003
10/31/2003 11/03/2003 11/05/2003 11/07/2003
11/13/2003 11/14/2003 11/17/2003 11/18/2003 11/19/2003

Date: 9/16/03] (at, Deputy Clerk) (Entered: 09/16/2003)
43 REPLY by City of Boca Raton to response to [22−1] motion to dismiss amended complaint (at, Deputy Clerk) (Entered: 09/29/2003)
44 NOTICE of Unavailability by City of Boca Raton for dates of: 12/22/03 through 12/26/03 (at, Deputy Clerk) (Entered: 10/09/2003)
45 MOTION by Jeffrey O, Michael Doe, Todd C, Doug B, William F, Steve L, Peter B to compel answers or better answers to resident plaintiff's first set of interrogatories (at, Deputy Clerk) (Entered: 10/17/2003)
47 MEMORANDUM OF LAW by City of Boca Raton in opposition to [46−1] motion for protective order to appear at video depositions, [46−2] motion for entry of confidentiality order (at, Deputy Clerk) (Entered: 10/21/2003)
46 EMERGENCY MOTION with memorandum in support by Jeffrey O, Michael Doe, Todd C, Doug B, William F, Peter B for protective order to appear at video depositions , or in the alternative for entry of confidentiality order (at, Deputy Clerk) (Entered: 10/21/2003)
48 ORDER DENYING EMERGENCY MOTION FOR PROTECTIVE ORDER OR IN THE ALTERNATIVE MOTION FOR ENTRY OF CONFIDENTIALITY ORDER, AND DENYING PLAINTIFF RESIDENTS' MOTION TO PROCEED ANONYMOUSLY denying [13−1] motion to proceed anonymously, denying [46−1] motion for protective order to appear at video depositions, denying [46−2] motion for entry of confidentiality order (Signed by Judge James C. Paine on 10/20/03) [EOD Date: 10/22/03] (at, Deputy Clerk) (Entered: 10/22/2003)
49 NOTICE of droping the following plaintiffs: Peter B, and Jeffrey O, by All Plaintiffs (Former Deputy Clerk) (Entered: 10/31/2003)
50 UNOPPOSED MOTION by City of Boca Raton to extend time to respond to motion to compel answers or better answers to resident first set of interrogatories (at, Deputy Clerk) (Entered: 11/04/2003)
51 NOTICE OF DROPPING PARTY, the plaintiff Steve L. was dropped from the amended complaint by All Plaintiffs (kw, Deputy Clerk) (Entered: 11/06/2003)
52 ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO RESIDENT PLAINTIFFS' MOTION TO COMPEL ANSWERS OR BETTER ANSWERS TO RESIDENT PLAINTIFFS' FIRST SET OF INTERROGATORIES:ORDER granting [50−1] motion to extend time to respond to motion to compel answers or better answers to resident set of interrogatories Response to motion reset to for [45−1] motion to compel answers or better answers to resident plaintiff's first set of interrogatories (Signed by Judge James C. Paine on 11/7/03) [EOD Date: 11/10/03] (Former Deputy Clerk) (Entered: 11/10/2003)
53 NOTICE OF DROPPING PARTY Michael Doe and William F. as plaintiffs by All Plaintiffs (kw, Deputy Clerk) (Entered: 11/14/2003)
54 AMENDED COMPLAINT by Todd C, Doug B, Regency Properties, Awakenings of Florid , (Answer due 11/24/03 for City of Boca Raton ) amending [14−1] amended complaint adding Bobby Hoover (kw, Deputy Clerk) (Entered: 11/14/2003)
55 MEMORANDUM OF LAW by City of Boca Raton in opposition to [45−1] motion to compel answers or better answers to resident plaintiff's first set of interrogatories (at, Deputy Clerk) (Entered: 11/19/2003)
56 AGREED MOTION with memorandum in support by All Plaintiffs for leave to file second amended complaint (at, Deputy Clerk) (Entered: 11/19/2003)
57 ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT granting [56−1] motion for leave to file second amended complaint (Signed by Judge James C. Paine on 11/19/03) [EOD Date: 11/20/03] (at, Deputy Clerk) (Entered: 11/20/2003)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 8 of 23

11/19/2003 12/01/2003 12/09/2003 12/17/2003 12/19/2003 01/07/2004 01/09/2004 01/12/2004
01/12/2004 01/14/2004
01/14/2004 01/14/2004
01/20/2004 01/20/2004 01/21/2004

58 SECOND AMENDED COMPLAINT by Bobby Hoover, Todd C, Doug B, Regency Properties, Awakenings of Florid , (Answer due 12/1/03 for City of Boca Raton) amending [54−1] amended complaint (at, Deputy Clerk) (Entered: 11/21/2003)
59 REPLY by Bobby Hoover, Todd C, Doug B to response to [45−1] motion to compel answers or better answers to resident plaintiff's first set of interrogatories (at, Deputy Clerk) (Entered: 12/02/2003)
60 ORDER OF REFERENCE Referring Motion(s) [45−1] motion to compel answers or better answers to resident plaintiff's first set of interrogatories referred to Magistrate Judge Linnea R. Johnson (signed by Judge James C. Paine on 12/8/03) [EOD Date: 12/10/03] (at, Deputy Clerk) (Entered: 12/10/2003)
61 ORDER granting in part, denying in part [45−1] motion to compel answers or better answers to resident plaintiff's first set of interrogatories (Signed by Magistrate Judge Linnea R. Johnson on 12/17/03) [EOD Date: 12/18/03] (at, Deputy Clerk) (Entered: 12/18/2003)
62 MOTION with memorandum in support by City of Boca Raton to dismiss Second Amended Complaint (at, Deputy Clerk) (Entered: 12/22/2003)
63 MOTION by Regency Properties, Awakenings of Florid to extend time to respond to defendant's motion to dismiss (at, Deputy Clerk) (Entered: 01/08/2004)
64 UNOPPOSED MOTION by Regency Properties, Awakenings of Florid to extend time to respond to motion to dismiss (wc, Deputy Clerk) (Entered: 01/12/2004)
65 ORDER GRANTING PLAINTIFFS' MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION TO DISMISS granting [63−1] motion to extend time to respond to defendant's motion to dismiss Response to motion reset to 1/9/04 for [62−1] motion to dismiss Second Amended Complaint (Signed by Judge James C. Paine on 1/12/04) [EOD Date: 1/13/04] (at, Deputy Clerk) (Entered: 01/13/2004)
66 AMENDED UNOPPOSED MOTION by Regency Properties, Awakenings of Florid, Todd C, Doug B to extend time to respond to defendant's motion to dismiss (at, Deputy Clerk) (Entered: 01/13/2004)
67 ORDER GRANTING PLAINTIFFS' AMENDED UNOPPOSED MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION TO DISMISS granting [66−1] motion to extend time to respond to defendant's motion to dismiss, granting [64−1] motion to extend time to respond to motion to dismiss Response to motion reset to 1/16/04 for [62−1] motion to dismiss Second Amended Complaint (Signed by Judge James C. Paine on 1/14/04) [EOD Date: 1/15/04] (at, Deputy Clerk) (Entered: 01/15/2004)
68 Supplemental Rule 26 Disclosures by Todd C, Doug B, Regency Properties, Bobby Hoover, Awakenings of Florid (at, Deputy Clerk) (Entered: 01/15/2004)
69 ORDER GRANTING PLAINTIFFS' MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION TO DISMISS granting [66−1] motion to extend time to respond to defendant's motion to dismiss. The plaintiffs shall have up to and including 1/16/04 within which to respond to the motion to dismiss. (Signed by Judge James C. Paine on 1/14/04) [EOD Date: 1/15/04] (at, Deputy Clerk) (Entered: 01/15/2004)
70 RESPONSE by All Plaintiffs to [62−1] motion to dismiss Second Amended Complaint (at, Deputy Clerk) (Entered: 01/21/2004)
71 NOTICE of Mediation Hearing on 1/22/04 at 10:00 a.m. Perry S. Itkin added as mediator (at, Deputy Clerk) (Entered: 01/21/2004)
72 ORDER DENYING PREVIOUS MOTIONS TO DISMISS AS MOOT denying [22−1] motion to dismiss amended complaint, denying [5−1] motion to dismiss complaint (Signed by Judge James C. Paine on 1/20/04) [EOD Date: 1/21/04] (at, Deputy Clerk) (Entered: 01/21/2004)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 9 of 23

01/27/2004 01/29/2004
02/03/2004 02/20/2004
03/01/2004 03/02/2004
03/03/2004 03/04/2004
03/26/2004 03/29/2004 04/12/2004 04/15/2004
05/17/2004 08/02/2004 11/08/2004

73 UNOPPOSED MOTION by City of Boca Raton to extend time to file reply to plaintiff's response to motion to dismiss second amended complaint (at, Deputy Clerk) (Entered: 01/27/2004)
74 ORDER ON DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO FILE REPLY TO PLAINTIFFS' RESPONSE TO MOTION TO DISMISS SECOND AMENDED COMPLAINT granting [73−1] motion to extend time to file reply to plaintiff's response to motion to dismiss second amended complaint Reply to Response to Motion reset to 2/3/04 for [62−1] motion to dismiss Second Amended Complaint (Signed by Judge James C. Paine on 1/29/04) [EOD Date: 1/29/04] (at, Deputy Clerk) (Entered: 01/29/2004)
75 REPLY by City of Boca Raton to response to [62−1] motion to dismiss Second Amended Complaint (at, Deputy Clerk) (Entered: 02/04/2004)
76 ORDER GRANTING IN PART DEFENDANT'S MOTION TO DISMISS SECOND AMENDED COMPLAINT granting in part, denying in part [62−1] motion to dismiss Second Amended Complaint. Plaintiffs shall provide a MORE DEFINITE STATEMENT as to Counts I and II within fifteen (15) days of the date of this order. (Signed by Judge James C. Paine on 2/20/04) [EOD Date: 2/23/04] (at, Deputy Clerk) (Entered: 02/23/2004)
77 UNOPPOSED MOTION by City of Boca Raton (Attorney ) to extend time to file response to plaintiff's interrogatories (at, Deputy Clerk) (Entered: 03/02/2004)
78 ORDER ON DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO FILE RESPONSE TO RESIDENT PLAINTIFFS' INTERROGATORIES granting [77−1] motion to extend time to file response to plaintiff's interrogatories (Signed by Judge James C. Paine on 3/2/04) [EOD Date: 3/2/04] (at, Deputy Clerk) (Entered: 03/02/2004)
79 MOTION by All Plaintiffs to extend time to file third amended complaint (kw, Deputy Clerk) (Entered: 03/04/2004)
80 ORDER ON PLAINTIFFS' UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO FILE THIRD AMENDED COMPLAINT granting [79−1] motion to extend time to file third amended complaint. The plaintiffs shall serve their third amended complaint on or before 3/26/04. (Signed by Judge James C. Paine on 3/4/04) [EOD Date: 3/5/04] (at, Deputy Clerk) (Entered: 03/05/2004)
81 THIRD AMENDED COMPLAINT by Bobby Hoover, Todd C, Doug B, Regency Properties, Awakenings of Florid , (Answer due 4/5/04 for City of Boca Raton ) amending [58−1] amended complaint (at, Deputy Clerk) (Entered: 03/29/2004)
82 AMENDMENT by All Plaintiffs to: certificate of service to docket [81−1] amended complaint filed 3/26/04 (Former Deputy Clerk) (Entered: 03/29/2004)
83 UNOPPOSED MOTION by City of Boca Raton to extend time to respond to third amended complaint (at, Deputy Clerk) (Entered: 04/14/2004)
84 ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO THIRD AMENDED COMPLAINT granting [83−1] motion to extend time to respond to third amended complaint. The defendant shall serve its response on or before 5/14/04. (Signed by Judge James C. Paine on 4/15/04) [EOD Date: 4/16/04] (at, Deputy Clerk) (Entered: 04/16/2004)
85 Answer and affirmative defenses by City of Boca Raton (Former Deputy Clerk) (Entered: 05/19/2004)
86 NOTICE of dropping party by Regency Properties, Awakenings of Florida, hereby drop Richard Cohen as a plaintiff (cj, Deputy Clerk) (Entered: 08/04/2004)
87 SCHEDULING ORDER setting Bench trial set for 9:30 5/16/05 Calendar call set for 1:30 5/5/05 Pretrial Stipulation due on or before 5/2/05 Deadline for filing of all pretrial motions by 3/16/05 Discovery cutoff 3/1/05 ; ( Signed by Judge James Paine on 11/8/04) [EOD Date: 11/15/04] CCAP (lh, Deputy Clerk) (Entered: 11/15/2004)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 10 of 23

11/08/2004
11/22/2004
01/06/2005 01/18/2005 01/20/2005
06/01/2005
06/03/2005
06/09/2005
07/18/2006 07/21/2006 08/16/2006
08/31/2006 09/08/2006 09/14/2006
09/14/2006 09/14/2006 09/14/2006 09/14/2006 09/14/2006 09/14/2006 09/14/2006 09/14/2006

88 ORDER referring case to mediation. 15 days to appoint mediator ( Signed by Judge James C. Paine on 11/8/04) [EOD Date: 11/15/04] (lh, Deputy Clerk) (Entered: 11/15/2004)
89 NOTICE of selection of Perry Itkin as Mediator by Todd C, Doug B, Regency Properties, Awakenings of Florid, City of Boca Raton, Bobby Hoover (ck, Deputy Clerk) (Entered: 11/29/2004)
90 JOINT MOTION by City of Boca Raton, All Plaintiffs to modify scheduling order (cj, Deputy Clerk) Modified on 01/24/2005 (Entered: 01/07/2005)
91 NOTICE of Change of Address of attorney by Awakenings of Florid, City of Boca Raton (cj, Deputy Clerk) (Entered: 01/20/2005)
92 ORDER GRANTING CONTINUNACE OF TRIAL: ORDER granting [90−1] joint motion to modify scheduling order ( Signed by Judge James C. Paine on 1/20/05) [EOD Date: 1/24/05] (Former Deputy Clerk) (Entered: 01/24/2005)
93 NOTICE of attorney appearance for Jeffrey O, Michael Doe, William F, Peter B, Regency Properties, Awakenings of Florid by William King Hill (Former Deputy Clerk) (Entered: 06/01/2005)
94 MOTION by Regency Properties, Awakenings of Florid (Attorney for Law firm of Steel Hector and Davis and Florida Justice Institute, Inc. to withdraw as attorney (lk, Deputy Clerk) (Entered: 06/03/2005)
95 ORDER GRANING MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFF'S REGENCY PROPERTIES AND AWAKENINGS: ORDER granting [94−1] motion for Law firm of Steel Hector and Davis and Florida Justice Institute, Inc. to withdraw attorney ( Signed by Judge James C. Paine on 6/8/05) [EOD Date: 6/9/05] (Former Deputy Clerk) (Entered: 06/09/2005)
96 NOTICE of Change of Address of Attorney by City of Boca Raton (Former Deputy Clerk) (Entered: 07/20/2006)
97 MOTION by All Plaintiffs (Attorney ) for status conference (dg, Deputy Clerk) (Entered: 08/07/2006)
98 ORDER REDIRECTING PRETRIAL PROCEDURES AND MANDATING MEDIATION AND REFERRING STATUS CONFERENCE ON SETTLEMENT NEGATIATIONS( Signed by Judge James C. Paine on 8/16/06) [EOD Date: 8/17/06] (rb, Deputy Clerk) (Entered: 08/17/2006)
99 UNOPPOSED MOTION by City of Boca Raton (Attorney ) to amend [98−1] order (Former Deputy Clerk) (Entered: 09/05/2006)
100 NOTICE of selection of Perry S. Itkin as Mediator by Awakenings of Florid, Regency Properties (rb, Deputy Clerk) (Entered: 09/11/2006)
101 NOTICE of filing deposition transcripts in support of city of Boca Raton's motion for partial summary judgment by City of Boca Raton (cj, Deputy Clerk) (Entered: 09/18/2006)
102 DEPOSITION of Bobby Hoover (cj, Deputy Clerk) (Entered: 09/18/2006)
103 DEPOSITION of Doug Byers (cj, Deputy Clerk) (Entered: 09/18/2006)
104 DEPOSITION of Steven Manko (cj, Deputy Clerk) (Entered: 09/18/2006)
105 DEPOSITION of Steven Manko Vol II (cj, Deputy Clerk) (Entered: 09/18/2006)
106 DEPOSITION of Todd Francis Conroy (cj, Deputy Clerk) (Entered: 09/18/2006)
107 DEPOSITION of Matthew Wolf (cj, Deputy Clerk) (Entered: 09/18/2006)
108 DEPOSITION of Matthew Wolf (cj, Deputy Clerk) (Entered: 09/18/2006)
109 MOTION by City of Boca Raton (Attorney ) for partial summary judgment (Former Deputy Clerk) (Entered: 09/18/2006)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 11 of 23

09/14/2006 09/14/2006 09/21/2006 09/28/2006 10/02/2006
10/06/2006 10/06/2006 10/10/2006 10/16/2006
10/16/2006 10/16/2006 10/16/2006 10/16/2006 10/16/2006 10/20/2006
10/26/2006 11/01/2006 11/01/2006 11/06/2006

110 Statement of material facts in supporti, by City of Boca Raton in support re: [109−1] motion for partial summary judgment (Former Deputy Clerk) (Entered: 09/18/2006)
111 MEMORANDUM by City of Boca Raton in support of [109−1] motion for partial summary judgment (Former Deputy Clerk) (Entered: 09/18/2006)
112 NOTICE of Mediation Hearing on 09/20/06 Perry S. Itkin added as mediator (dj, Deputy Clerk) (Entered: 09/21/2006)
113 AGREED MOTION by All Plaintiffs to extend time to respond to motion for partial summary judgment (nt, Deputy Clerk) (Entered: 10/02/2006)
114 ORDER GRATNING CITY OF BOCA RATON'S MOTION FOR MODICIATION OF COURT'S 8/16/06 ORDER: ORDER granting [99−1] motion to amend [98−1] order ( Signed by Judge James C. Paine on 10/2/06) [EOD Date: 10/4/06] (Former Deputy Clerk) (Entered: 10/04/2006)
115 ORDER granting 113 Motion for Extension of Time to Respond to Motion for Partial Summary Judgment. Signed by Judge James C. Paine on 10/6/06. (ir) (Entered: 10/12/2006)
122 NOTICE OF PENDENCY OF SIMILAR ACTION AND MOTION to Consolidate Cases by All Plaintiffs. (lh) (Entered: 10/17/2006)
123 MOTION to interplead relevant issues of a silimar nature and join the style of the case to read by (Party Not Legible) . (nt) Additional attachment(s) added on 10/18/2006 (nt). (Entered: 10/18/2006)
116 MEMORANDUM in Opposition re 110 Statement, 111 Memorandum in Support, 109 Motion for Summary Judgment (City's Partial) filed by Bobby Hoover, Todd C, Doug B, Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc. (Hill, William) (Entered: 10/16/2006)
117 MEMORANDUM in Opposition re 110 Statement of Facts in Opposition to motion for partial summary judgment filed by All Plaintiffs. (Hill, William) (Entered: 10/16/2006)
118 AFFIDAVIT in Opposition re 109 Motion for Summary Judgment Affidavit of Steve Manko filed by All Plaintiffs. (Hill, William) (Entered: 10/16/2006)
119 AFFIDAVIT in Opposition re 109 Motion for Summary Judgment Deposition of Michael Doe filed by All Plaintiffs. (Hill, William) (Entered: 10/16/2006)
120 AFFIDAVIT in Opposition re 109 Motion for Summary Judgment Deposition (excerpts) of Steve Manko filed by All Plaintiffs. (Hill, William) (Entered: 10/16/2006)
121 MEMORANDUM OF LAW in Opposition to Plaintiffs' Notice of Pendency of Similar Action and Motion to Consolidate Cases by City of Boca Raton. (Mandel, Matthew) (Entered: 10/16/2006)
124 Defendant's MOTION for Extension of Time to File Response/Reply as to 116 Memorandum in Opposition, filed by Plaintiffs as to City's Motion for Partial Summary Judgment by City of Boca Raton. (Mandel, Matthew) (Entered: 10/20/2006)
125 REPLY to Response to Motion re 122 MOTION to Consolidate Cases filed by All Plaintiffs. (Hill, William) (Entered: 10/26/2006)
126 ORDER OF RECUSAL. Judge James C. Paine recused. Case reassigned to Judge Donald M. Middlebrooks for all further proceedings. Signed by Judge James C. Paine on 10/30/06. (mb) (Entered: 11/01/2006)
127 CLERKS NOTICE REASSIGNING CASE. (mb) (Entered: 11/01/2006)
ORDER granting 124 Motion for Extension of Time to File Response/Reply re 124 Defendant's MOTION for Extension of Time to File Response/Reply as to 116 Memorandum in Opposition, filed by Plaintiffs as to City's Motion for Partial Summary Judgment Reply due by 11/6/2006. Approved by Donald M.

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 12 of 23

11/06/2006 11/06/2006 11/06/2006 11/07/2006 11/07/2006 11/07/2006
11/07/2006 11/07/2006 11/07/2006
11/08/2006
11/09/2006 11/13/2006 11/14/2006 11/14/2006 11/16/2006 11/20/2006 11/28/2006

Middlebrooks 11/6/06. (lc2) (Entered: 11/06/2006)
128 NOTICE by All Plaintiffs Request for Status Conference (Hill, William) (Entered: 11/06/2006)
129 Unopposed MOTION for Leave to File Excess Pages by City of Boca Raton. (Mandel, Matthew) (Entered: 11/06/2006)
130 REPLY to Response to Motion re 109 Motion for Summary Judgment filed by City of Boca Raton. (Mandel, Matthew) (Entered: 11/06/2006)
131 NOTICE OF UNAVAILABILITY by Regency Properties of Boca Raton, Inc for dates of November 20, 2006 − November 28, 2006 (Hill, William) (Entered: 11/07/2006)
ENDORSED ORDER granting 129 Motion for Leave to File Excess Pages. Approved by Donald M. Middlebrooks on November 7, 2006. (lc2) (Entered: 11/07/2006)
132 ORDER granting 97 Motion for Hearing ALSO SETS TRIAL DATE AND CALENDAR CALLSTATUS CONFERENCE SET FOR 11/14 AT 8:00 A.M. SEE ORDER FOR DETAILS. Signed by Judge Donald M. Middlebrooks on 11/7/2006. (Attachments: # 1) (sw) (Entered: 11/07/2006)
133 NOTICE OF UNAVAILABILITY by all plaintiffs for dates of December 14 through December 22, 2006 (Hill, William) (Entered: 11/07/2006)
135 NOTICE of filing documents in support of city of boca raton's motion for partial summary judgment by City of Boca Raton (tpHA) (Entered: 11/13/2006)
Set Deadlines/Hearings: Proposed Finding Of Fact And Conclusions of Law due by 12/4/2006. Calendar Call set for 11/29/2006 01:15 PM before Judge Donald M. Middlebrooks. Jury Trial set for 12/11/2006 09:00 AM before Judge Donald M. Middlebrooks. RE; DE 132 (dm) (Entered: 11/28/2006)
NOTICE OF AMENDED SCHEDULE FOR STATUS CONFERENCE Due to scheduling conflicts, the status conference in this matter has been moved. PLEASE TAKE NOTICE that the status conference in this matter shall take place at 5:00 P.M. on Tuesday, November 14, 2006, before the Honorable Donald M. Middlebrooks, United States District Judge, in the Central Courtroom, United States Courthouse, 301 N. Miami Avenue, Miami. Requests to appear telephonically may be made by contacting Angela Rodriguez, Courtroom Deputy, at (561) 514−3725 or (305) 523−5270 no later than 3 P.M. on Thursday, November 9, 2006. ?(lc2) (Entered: 11/08/2006)
134 Witness List by All Plaintiffs.. (Hill, William) (Entered: 11/09/2006)
136 STATUS REPORT Mediation Report by Perry S. Itkin. (Hill, William) (Entered: 11/13/2006)
137 Unopposed MOTION to Continue Trial by All Plaintiffs. Responses due by 11/29/2006 (Attachments: # 1 Exhibit Declaration of W. Hill# 2 Exhibit Declaration of J. Green)(Hill, William) (Entered: 11/14/2006)
Minute Entry for proceedings held before Judge Donald M. Middlebrooks : Status Conference held on 11/14/2006. (Court Reporter Karl Shires.) (ar) (Entered: 11/15/2006)
139 REPORT of Mediation Disposition: Impasse(vp) (Entered: 11/21/2006)
138 ORDER granting in part and denying in part 137 Motion to Continue SEE ORDER FOR DEADLINES. Signed by Judge Donald M. Middlebrooks on 11/17/2006. (sw) (Entered: 11/20/2006)
Reset Hearings: Calendar Call reset for 1/17/2007 02:00 PM before Judge Donald M. Middlebrooks. Jury Selection reset for 1/22/2007 09:00AM before Judge Donald M. Middlebrooks. Reference to DE #138 (dm) (Entered: 11/30/2006)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 13 of 23

12/01/2006 12/01/2006 12/01/2006
12/01/2006 12/04/2006
12/06/2006 12/15/2006 12/15/2006 12/18/2006
12/18/2006
12/18/2006 12/18/2006 12/19/2006 12/20/2006 12/20/2006
12/20/2006

140 Plaintiff's MOTION for Partial Summary Judgment by All Plaintiffs. (Hill, William) (Entered: 12/01/2006)
141 MEMORANDUM OF LAW In Support of Motion for Partial Summary Judgment by All Plaintiffs. (Hill, William) (Entered: 12/01/2006)
142 Statement of: Material Facts in Support of Plaintiffs' Motion for Partial Summary Judgment by All Plaintiffs re 140 Plaintiff's MOTION for Partial Summary Judgment, 141 Memorandum of Law. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21)(Hill, William) (Entered: 12/01/2006)
143 MOTION for Hearing re 140 Plaintiff's MOTION for Partial Summary Judgment, 141 Memorandum of Law, 142 Statement, by All Plaintiffs. (Hill, William) (Entered: 12/01/2006)
144 NOTICE by All Plaintiffs re 109 Motion for Summary Judgment OF FILING ADDITIONAL EVIDENCE IN OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT (Attachments: # 1)(Hill, William) (Entered: 12/04/2006)
145 NOTICE by All Plaintiffs re 141 Memorandum of Law OF FILING ADDITIONAL AUTHORITY IN SUPPORT (Attachments: # 1)(Hill, William) (Entered: 12/06/2006)
146 MOTION for Extension of Time to File Response/Reply as to 140 Plaintiff's MOTION for Partial Summary Judgment, 141 Memorandum of Law, 142 Statement, by City of Boca Raton. (Mandel, Matthew) (Entered: 12/15/2006)
147 Unopposed MOTION for Extension of Time to File Joint Pretrial Stipulation by City of Boca Raton. (Mandel, Matthew) (Entered: 12/15/2006)
ORDER granting 147 Motion for Extension of Time to File Joint Pretrial Stipulation. The Joint Pretrial Stipulation shall be filed on or before Tuesday, December 19, 2006. Approved by Judge Donald M. Middlebrooks on 12/18/2006.(lc2) (Entered: 12/18/2006)
ORDER granting in part and denying in part 146 Motion for Extension of Time to File Response/Reply. Defendant shall serve its oppotition to the Plaintiffs' Memorandum on or before December 20, 2006. Approved by Judge Donald M. Middlebrooks on 12/18/2006.(lc2) (Entered: 12/18/2006)
Reset Scheduling Order Deadlines: Pretrial Stipulation due by 12/19/2006. RE; Order granting motion for extension of time to file joint pretrial stipulation entered on 12/18/06 (dm) (Entered: 12/19/2006)
Reset Deadlines as to 140 Plaintiff's MOTION for Partial Summary Judgment And Memorandum Of Law; Respons due by 12/20/2006 (dm) (Entered: 12/19/2006)
148 PRETRIAL STIPULATION by City of Boca Raton, All Plaintiffs. (Pallett−Vasquez, Melissa) (Entered: 12/19/2006)
149 Cross MOTION for Partial Summary Judgment by City of Boca Raton. (Mandel, Matthew) (Entered: 12/20/2006)
150 MEMORANDUM in Opposition re 140 Plaintiff's MOTION for Partial Summary Judgment, 149 Cross MOTION for Partial Summary Judgment, 141 Memorandum of Law, 142 Statement, and in Support of City's Cross−Motion for Summary Judgment 149 filed by City of Boca Raton. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Errata 4# 5 Exhibit 5)(Mandel, Matthew) (Entered: 12/20/2006)
151 Statement of: Facts in Opposition to Plaintiffs' Motion for Partial Summary Judgment and in Support of City's Cross−Motion for Partial Summary Judgment by City of Boca Raton re 140 Plaintiff's MOTION for Partial Summary Judgment, 149 Cross MOTION for Partial Summary Judgment, 141 Memorandum of Law, 142 Statement,, 150 Memorandum in Opposition,. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9)(Mandel, Matthew) (Entered: 12/20/2006)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 14 of 23

12/20/2006
12/20/2006 12/21/2006
12/21/2006 12/22/2006 12/22/2006 12/22/2006 12/22/2006 12/26/2006
12/26/2006 12/26/2006 12/27/2006 12/27/2006 12/27/2006 12/27/2006 12/27/2006

152 NOTICE by City of Boca Raton re 140 Plaintiff's MOTION for Partial Summary Judgment, 149 Cross MOTION for Partial Summary Judgment, 141 Memorandum of Law, 151 Statement,,, 142 Statement,, 150 Memorandum in Opposition, (Attachments: # 1 Affidavit of Susan Haynie# 2 Affidavit of Bill Hager# 3 Affidavit of Steven Abrams# 4 Affidavit of Carol Hanson# 5 Affidavit of Dave Freudenberg# 6 Affidavit of Diana Grub Frieser# 7 Expert Report of Dr. Kenneth Thompson)(Mandel, Matthew) (Entered: 12/20/2006)
153 Defendant's MOTION for Leave to File Excess Pages by City of Boca Raton. (Mandel, Matthew) (Entered: 12/20/2006)
154 (VACATED PER DE # 161) ORDER REFERRING CASE to Magistrate Judge for Settlement Conference. Signed by Judge Donald M. Middlebrooks on 12/21/2006. (sw) Modified on 1/3/2007 (dm). Case Referred To Magistrate Judge Linnea R. Johnson; Settlement conference to begin 1/3/2007 at 1:30 p.m. (Entered: 12/21/2006)
ENDORSED ORDER granting 153 Motion for Leave to File Excess Pages. Approved by Judge Donald M. Middlebrooks on 12/21/2006. (lc2) (Entered: 12/21/2006)
155 Order Scheduling Settlement Conference set for 1/11/2007 09:30 AM in Miami Division before Magistrate Judge Peter R. Palermo. Signed by Judge Peter R. Palermo on 12/22/06. (ds) (Entered: 12/22/2006)
156 NOTICE by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc Plaintiff's Notice of Filing Expert Report (Hill, William) (Entered: 12/22/2006)
179 NOTICE of Filing Deposition Transcripts in opposition to plaintiffs' motion for partial summary judgment by City of Boca Raton. (Attachments: # 1 Continuation to the Deposition)(ra) (Entered: 01/09/2007)
180 NOTICE of Filing Deposition Transcripts in opposition to plaintiffs' motion for partial summary judgment by City of Boca Raton. (Attachments: # 1 Continuation# 2 Continuation# 3 Continuation)(ra) (Entered: 01/09/2007)
157 MOTION to Strike 149 Cross MOTION for Partial Summary Judgment, 151 Statement,,, 152 Notice (Other), Notice (Other), Notice (Other), 150 Memorandum in Opposition, by All Plaintiffs. Responses due by 1/10/2007 (Attachments: # 1 Text of Proposed Order Granting Motion to Strike)(Pallett−Vasquez, Melissa) (Entered: 12/26/2006)
158 MOTION to Continue TRIAL OR IN THE ALTERNATIVE, MOTION TO RESCHEDULE SETTLEMENT CONFERENCE by All Plaintiffs. Responses due by 1/10/2007 (Attachments: # 1 # 2 Text of Proposed Order)(Pallett−Vasquez, Melissa) (Entered: 12/26/2006)
163 NOTICE of filing video recording of 5/29/06 City Council meeting by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc (hd) (Entered: 12/28/2006)
159 NOTICE by All Plaintiffs of Filing Expert Report of Christos Laware (Attachments: # 1)(Pallett−Vasquez, Melissa) (Entered: 12/27/2006)
ENDORSED ORDER requiring Defendants respond to Plaintiffs' Motion to Strike (DE 157) on or before December 29, 2006. Approved by Judge Donald M. Middlebrooks on 12/27/2006. (lc2) (Entered: 12/27/2006)
160 NOTICE by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc of Withdrawing Declaration of Frank Jichetti (Hill, William) (Entered: 12/27/2006)
161 ORDER granting in part and denying in part 158 Motion to Continue − WITH ORDER OF REFERENCE TO MAGISTRATE JUDGE JOHNSON FOR SETTLEMENT. SEE ORDER FOR DETAILS. Signed by Judge Donald M. Middlebrooks on 12/27/2006. (sw) (Entered: 12/27/2006)
162 Unopposed MOTION Modification of Court's December 27, 2006 Order re 161 Order on Motion to Continue by City of Boca Raton. (Mandel, Matthew) (Entered: 12/27/2006)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 15 of 23

12/27/2006 12/29/2006 12/29/2006
01/02/2007 01/02/2007
01/02/2007 01/03/2007 01/03/2007 01/04/2007 01/04/2007 01/04/2007 01/08/2007 01/08/2007 01/08/2007
01/08/2007 01/08/2007 01/08/2007
01/10/2007 01/10/2007

Set Hearing : CASE REFERRED to Magistrate Judge Linnea R. Johnson; Settlement Conference set for 1/3/2007 01:30 PM before Magistrate Judge Linnea R. Johnson. PER DE #161 (dm) (Entered: 01/03/2007)
164 ORDER granting 162 Motion . Signed by Judge Donald M. Middlebrooks on 12/29/2006. (sw) (Entered: 12/29/2006)
165 MEMORANDUM in Opposition re 157 MOTION to Strike 149 Cross MOTION for Partial Summary Judgment, 151 Statement,,, 152 Notice (Other), Notice (Other), Notice (Other), 150 Memorandum in Opposition, filed by City of Boca Raton. (Mandel, Matthew) (Entered: 12/29/2006)
166 MOTION for Protective Order, MOTION to Quash by City of Boca Raton. (Attachments: # 1 Exhibit 1)(Mandel, Matthew) (Entered: 01/02/2007)
167 MEMORANDUM in Opposition re 150 Memorandum in Opposition, (Plaintiffs' Reply to Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion for Partial Summary Judgment) filed by All Plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Pallett−Vasquez, Melissa) (Entered: 01/02/2007)
168 Unopposed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Pallett−Vasquez, Melissa) (Entered: 01/02/2007)
ENDORSED ORDER granting 168 Motion for Leave to File Excess Pages. Approved by Judge Donald M. Middlebrooks on 1/3/2007. (lc2) (Entered: 01/03/2007)
170 Minute Entry for proceedings held before Judge Linnea R. Johnson : Settlement Conference held on 1/3/2007. (Tape #Not Taped.) (eg1) (Entered: 01/04/2007)
169 NOTICE by All Plaintiffs of Filing the Deposition Transcript of Mayor Steven L. Abrams (Attachments: # 1 Deposition Mayor Abrams)(Pallett−Vasquez, Melissa) (Entered: 01/04/2007)
171 Proposed Findings of Fact by City of Boca Raton. (Mandel, Matthew) (Entered: 01/04/2007)
172 Proposed Findings of Fact by All Plaintiffs. (Pallett−Vasquez, Melissa) (Entered: 01/04/2007)
173 Witness List by All Plaintiffs.. (Pallett−Vasquez, Melissa) (Entered: 01/08/2007)
174 Exhibit List by All Plaintiffs.. (Pallett−Vasquez, Melissa) (Entered: 01/08/2007)
175 NOTICE by All Plaintiffs of Filing Narrative Written Direct Testimony (Attachments: # 1 Exhibit Byers# 2 Exhibit Conroy# 3 Exhibit DeCamille# 4 Exhibit Gillis# 5 Exhibit Hantzarides# 6 Exhibit Hoover# 7 Exhibit Laware# 8 Exhibit Manko# 9 Exhibit McIver# 10 Exhibit Regan# 11 Exhibit Sparks# 12 Exhibit Wolf)(Pallett−Vasquez, Melissa) (Entered: 01/08/2007)
176 Witness List by City of Boca Raton.. (Mandel, Matthew) (Entered: 01/08/2007)
177 Exhibit List by City of Boca Raton.. (Mandel, Matthew) (Entered: 01/08/2007)
178 NOTICE by City of Boca Raton (Attachments: # 1 Affidavit Abrams# 2 Affidavit Annunziato# 3 Affidavit Camejo# 4 Affidavit Childers# 5 Affidavit Freudenberg# 6 Affidavit Frieser# 7 Affidavit Hager# 8 Affidavit Hanson# 9 Affidavit Haynie# 10 Affidavit Massalone# 11 Affidavit Thompson# 12 Affidavit Welhaf)(Mandel, Matthew) (Entered: 01/08/2007)
181 RESPONSE to 165 Memorandum in Opposition, (Plaintiffs' Reply to City of Boca Raton's Memorandum of Law in Opposition to Plaintiffs' Motion to Strike) filed by All Plaintiffs. (Pallett−Vasquez, Melissa) (Entered: 01/10/2007)
182 Plaintiff's MOTION for Extension of Time to File Response/Reply as to 149 Cross MOTION for Partial Summary Judgment, 151 Statement,,, 150 Memorandum in Opposition, by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Pallett−Vasquez, Melissa) (Entered: 01/10/2007)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 16 of 23

01/11/2007 01/11/2007 01/12/2007 01/12/2007 01/12/2007 01/12/2007 01/12/2007 01/12/2007 01/12/2007
01/12/2007
01/12/2007 01/15/2007 01/16/2007
01/16/2007 01/16/2007

183 ORDER denying 122 Motion to Consolidate Cases, denying 123 Motion consolidation and transfer . Signed by Judge Donald M. Middlebrooks on 1/9/2007. (sw) (Entered: 01/11/2007)
184 NOTICE by All Plaintiffs re 174 Exhibit List of Amending Exhibit List (Hill, William) (Entered: 01/11/2007)
185 NOTICE by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc of Filing Deposition Transcript of Carol Hanson (Attachments: # 1 Deposition Transcript of Carol Hanson)(Pallett−Vasquez, Melissa) (Entered: 01/12/2007)
186 NOTICE by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc re 169 Notice (Other) of Filing Exhibits to Deposition Transcript of Mayor Steven L. Abrams (Attachments: # 1 Exhibit to Deposition of Mayor Steven L. Abrams)(Pallett−Vasquez, Melissa) (Entered: 01/12/2007)
187 NOTICE by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc of Filing Deposition Transcript of Dave Freudenberg (Attachments: # 1 Deposition Transcript of Dave Freudenberg)(Pallett−Vasquez, Melissa) (Entered: 01/12/2007)
188 NOTICE by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc of Filing Deposition Transcript of Susan Haynie (Attachments: # 1 Deposition Transcript of Susan Haynie)(Pallett−Vasquez, Melissa) (Entered: 01/12/2007)
189 NOTICE by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc of Filing Deposition Transcript of Diana Grub Frieser (Attachments: # 1 Deposition Transcript of Diana Grub Frieser (Part 1)# 2 Deposition Transcript of Diana Grub Frieser (Part 2))(Pallett−Vasquez, Melissa) (Entered: 01/12/2007)
190 MEMORANDUM OF LAW AS TO WHY THE RESIDENT PLAINTIFFS CLAIMS ARE LIVE EVEN THOUGH THEY HAVE PROGRESSED TO MORE INDEPENDENT HOUSING by Bobby Hoover, Todd C, Doug B. (Pallett−Vasquez, Melissa) (Entered: 01/12/2007)
191 MOTION in Limine TO EXCLUDE EVIDENCE REGARDING LICENSING AND SUPPORTING MEMORANDUM OF LAW REGARDING DEFENDANT'S INABILITY TO REGULATE SUBSTANCE ABUSE SERVICE PROVIDERS UNDER FLORIDA LAW by All Plaintiffs. (Pallett−Vasquez, Melissa) (Entered: 01/12/2007)
192 MEMORANDUM OF LAW REGARDING THE STANDARD FOR DETERMINING THE PROPRIETY OF JUSTIFICATIONS FOR FACIAL DISCRIMINATION UNDER THE FAIR HOUSING ACT by All Plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Pallett−Vasquez, Melissa) (Entered: 01/12/2007)
193 Joint MOTION for Extension of Time to File Motions in Limine by City of Boca Raton. (Attachments: # 1 Text of Proposed Order)(Mandel, Matthew) (Entered: 01/12/2007)
ENDORSED ORDER granting 193 Motion for Extension of Time to File Motions in Limine regarding Drs. Thompson, Laware, and McIver. Such motions shall be filed on or before Tuesday, January 16, 2007. Approved by Judge Donald M. Middlebrooks on 1/15/2007.(lc2) (Entered: 01/15/2007)
NOTICE that the Calendar Call scheduled for tomorrow, January 17, 2007, will take place at 1:15pm at 701 Clematis Street, 2nd floor, before the Honorable Donald M. Middlebrooks. The reference to 2pm in the docket is in error. The Calendar Call is scheduled for 1:15pm in accordance with the Order setting the same. (lc2). (Entered: 01/16/2007)
194 MOTION to Strike Plaintiffs' Expert Witness, MOTION in Limine to Prevent Introduction of Previously Unproduced Documents regarding "Lost Profits" by City of Boca Raton. Responses due by 1/30/2007 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order)(Mandel, Matthew) (Entered: 01/16/2007)
195 Plaintiff's MOTION in Limine to Exclude Expert Testimony of Kenneth Thompson by All Plaintiffs. (Attachments: # 1 Exhibit # 2 Text of Proposed Order)(Pallett−Vasquez, Melissa) (Entered: 01/16/2007)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 17 of 23

01/16/2007 01/16/2007 01/16/2007
01/16/2007
01/17/2007
01/17/2007 01/17/2007 01/17/2007 01/17/2007 01/18/2007
01/19/2007
01/19/2007 01/20/2007 01/21/2007

196 RESPONSE to Motion re 166 MOTION for Protective Order MOTION to Quash filed by All Plaintiffs. Replies due by 1/23/2007. (Attachments: # 1 Exhibit)(Pallett−Vasquez, Melissa) (Entered: 01/16/2007)
197 Joint MOTION TO ALLOW THE USE OF ELECTRONIC EQUIPMENT DURING TRIAL by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Pallett−Vasquez, Melissa) (Entered: 01/16/2007)
198 CERTIFICATE of Counsel re 194 MOTION to Strike Plaintiffs' Expert Witness MOTION in Limine to Prevent Introduction of Previously Unproduced Documents regarding "Lost Profits" MOTION to Strike Plaintiffs' Expert Witness MOTION in Limine to Prevent Introduction of Previously Unproduced Documents regarding "Lost Profits" by Matthew Harris Mandel on behalf of City of Boca Raton (Mandel, Matthew) (Entered: 01/16/2007)
199 NOTICE by All Plaintiffs re 191 MOTION in Limine TO EXCLUDE EVIDENCE REGARDING LICENSING AND SUPPORTING MEMORANDUM OF LAW REGARDING DEFENDANT'S INABILITY TO REGULATE SUBSTANCE ABUSE SERVICE PROVIDERS UNDER FLORIDA LAW of Filing Certification of Counsel Pursuant to Local Rule 7.1.A.3 (Pallett−Vasquez, Melissa) (Entered: 01/16/2007)
200 ORDER denying 109 Motion for Summary Judgment, denying 140 Motion for Partial Summary Judgment, denying 143 Motion for Hearing, striking 149 Motion for Partial Summary Judgment, granting 157 Motion to Strike, denying as moot 182 Motion for Extension of Time to File Response/Reply . Signed by Judge Donald M. Middlebrooks on 1/17/2007. (sw) (Entered: 01/17/2007)
Minute Entry for proceedings held before Judge Donald M. Middlebrooks : Status Conference held on 1/17/2007. Parties are prepared to go to trial beginning 1/22 at 9:00 a.m. (Court Reporter Karl Shires.) (ar) (Entered: 01/17/2007)
201 ORDER granting 197 Motion ALLOW ELECTRONIC EQUIPMENT FOR TRIAL . Signed by Judge Donald M. Middlebrooks on 1/17/2007. (sw) (Entered: 01/17/2007)
202 NOTICE by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc of Filing Deposition Transcript of William Hager (Attachments: # 1 Deposition Transcript of William Hager)(Pallett−Vasquez, Melissa) (Entered: 01/17/2007)
203 Exhibit List Amended by City of Boca Raton.. (Mandel, Matthew) (Entered: 01/17/2007)
204 MEMORANDUM in Opposition re 191 MOTION in Limine TO EXCLUDE EVIDENCE REGARDING LICENSING AND SUPPORTING MEMORANDUM OF LAW REGARDING DEFENDANT'S INABILITY TO REGULATE SUBSTANCE ABUSE SERVICE PROVIDERS UNDER FLORIDA LAW filed by City of Boca Raton. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Mandel, Matthew) (Entered: 01/18/2007)
205 REPLY to Response to Motion re 191 MOTION in Limine TO EXCLUDE EVIDENCE REGARDING LICENSING AND SUPPORTING MEMORANDUM OF LAW REGARDING DEFENDANT'S INABILITY TO REGULATE SUBSTANCE ABUSE SERVICE PROVIDERS UNDER FLORIDA LAW filed by All Plaintiffs. (Attachments: # 1 Exhibit 1)(Pallett−Vasquez, Melissa) (Entered: 01/19/2007)
206 REPLY to Response to Motion re 166 MOTION for Protective Order MOTION to Quash filed by City of Boca Raton. (Mandel, Matthew) (Entered: 01/19/2007)
207 Witness List Amended by City of Boca Raton.. (Mandel, Matthew) (Entered: 01/20/2007)
208 RESPONSE in Opposition re 194 MOTION to Strike Plaintiffs' Expert Witness MOTION in Limine to Prevent Introduction of Previously Unproduced Documents regarding "Lost Profits" MOTION to Strike Plaintiffs' Expert Witness MOTION in Limine to Prevent Introduction of Previously Unproduced Documents regarding "Lost Profits" filed by All Plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B1# 3 Exhibit B2)(Pallett−Vasquez, Melissa) (Entered: 01/21/2007)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 18 of 23

01/22/2007 01/23/2007 01/23/2007 01/24/2007 01/26/2007 01/29/2007
01/30/2007
01/30/2007 01/30/2007
02/05/2007
02/08/2007 02/08/2007 02/08/2007 02/08/2007 02/09/2007
02/12/2007 02/12/2007
02/16/2007 02/26/2007
02/28/2007 03/15/2007

Minute Entry for proceedings held before Judge Donald M. Middlebrooks : Bench Trial held on 1/22/2007. (Court Reporter Karl Shires.) (ar) (Entered: 01/24/2007)
209 NOTICE of Filing Discovery: Deposition of Cathy Claud(ls) (Entered: 01/24/2007)
Minute Entry for proceedings held before Judge Donald M. Middlebrooks : Bench Trial held on 1/23/2007. (Court Reporter Karl Shires.) (ar) (Entered: 01/24/2007)
Minute Entry for proceedings held before Judge Donald M. Middlebrooks : Bench Trial held on 1/24/2007. (Court Reporter Karl Shires.) (ar) (Entered: 01/26/2007)
Minute Entry for proceedings held before Judge Donald M. Middlebrooks : Bench Trial held on 1/26/2007. (Court Reporter Karl Shires.) (ar) (Entered: 01/30/2007)
Minute Entry for proceedings held before Judge Donald M. Middlebrooks : Bench Trial completed on 1/29/2007. (Court Reporter Karl Shires.) (ar) (Entered: 01/30/2007)
210 ORDER OF INSTRUCTIONS FOR PARTIES REGARDING POST TRIAL SUBMISSIONS DEADLINE AND REQUIREMENTS 2/12/2007 Signed by Judge Donald M. Middlebrooks on 1/30/2007 (sw) (Entered: 01/30/2007)
211 NOTICE by City of Boca Raton of Filing List of Exhibits Entered into Evidence by City (Mandel, Matthew) (Entered: 01/30/2007)
212 NOTICE by All Plaintiffs of Filing Plaintiffs' Admitted Trial Exhibit List (Attachments: # 1 List of Admitted Exhibits)(Pallett−Vasquez, Melissa) (Entered: 01/30/2007)
ENDORSED ORDER denying as moot 166 Motion for Protective Order, denying as moot 166 Motion to Quash. Approved by Judge Donald M. Middlebrooks on 2/5/2007. (lc2) (Entered: 02/05/2007)
213 MOTION for Extension of Time to File Proposal on the Issue of Remedies by United States. (Langworthy, Nancy) (Entered: 02/08/2007)
214 Proposed Pretrial Order Proposed Order Granting Motion for Extension of Time by United States. (Langworthy, Nancy) (Entered: 02/08/2007)
215 NOTICE by All Plaintiffs of Filing Excerpts from the Deposition Transcript of Kenneth Thompson (Hill, William) (Entered: 02/08/2007)
216 TRANSCRIPT of Proceedings. (Hill, William) (Entered: 02/08/2007)
ENDORSED ORDER granting 213 Motion for Extension of Time to File a remedies proposal. Approved by Judge Donald M. Middlebrooks on 2/9/2007. (lc2) (Entered: 02/09/2007)
217 NOTICE by City of Boca Raton Submission on Issue of Remedies (Cole, Jamie) (Entered: 02/12/2007)
218 NOTICE by All Plaintiffs of Filing Plaintiffs' Proposed Remedies to Protect Sober Housing in Supportive Environments in the City of Boca Raton and Eliminate Discriminatory Practices by the City of Boca Raton (Attachments: # 1 # 2 # 3 # 4 # 5)(Pallett−Vasquez, Melissa) (Entered: 02/12/2007)
219 MEMORANDUM OF LAW United States' Submission on the Issue of Remedies by United States. (Langworthy, Nancy) (Entered: 02/16/2007)
220 FINDINGS OF FACT AND CONCLUSIONS OF LAW JUDGMENT IN FAVOR OF PLAINTIFFS AWARDING NOMINAL DAMAGES. FINAL JUDGMENT TO ISSUE SEPARATELY Signed by Judge Donald M. Middlebrooks on 2/26/2007 (sw) (Entered: 02/26/2007)
221 ORDER OF FINAL JUDGMENT in favor of the Plaintiffs against the Defendant. Signed by Judge Donald M. Middlebrooks on 2/28/2007 (ls) (Entered: 03/01/2007)
222 MOTION for New Trial or to Alter or Amend Judgment by All Plaintiffs. (Attachments: # 1 Affidavit of Steve Manko)(Hill, William) (Entered: 03/15/2007)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 19 of 23

03/28/2007 03/29/2007 04/02/2007
04/03/2007 04/03/2007 04/12/2007 04/16/2007 04/16/2007 04/16/2007 04/16/2007 04/17/2007
04/17/2007 04/17/2007 04/17/2007 04/18/2007 04/20/2007

223 Unopposed MOTION for Extension of Time to File Response/Reply as to 222 MOTION for New Trial or to Alter or Amend Judgment by City of Boca Raton. (Mandel, Matthew) (Entered: 03/28/2007)
ENDORSED ORDER granting 223 Motion for Extension of Time to File Response/Reply. Approved by Judge Donald M. Middlebrooks on 3/29/2007.(lc2) (Entered: 03/29/2007)
224 Agreed MOTION for Extension of Time to File Plaintiffs' Motion for Attorneys' Fees and Motion for Costs by All Plaintiffs. (Attachments: # 1 Text of Proposed Order PROPOSED ORDER ON PLAINTIFFS' AGREED MOTION FOR ENLARGEMENT OF TIME TO FILE PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND MOTION FOR COSTS)(Pallett−Vasquez, Melissa) (Entered: 04/02/2007)
225 ORDER granting 224 Motion for Extension of Time to File Signed by Judge Donald M. Middlebrooks on 4/3/2007. (sw) (Entered: 04/03/2007)
Set Deadlines/Hearings per Order at DE #225: Motions due by 4/16/2007. (bb) (Entered: 04/04/2007)
226 RESPONSE in Opposition re 222 MOTION for New Trial or to Alter or Amend Judgment filed by City of Boca Raton. (Attachments: # 1 Exhibit Exhibit "A"# 2 Exhibit Exhibit "B")(Mandel, Matthew) (Entered: 04/12/2007)
227 Plaintiff's MOTION for Leave to File Excess Pages for Plaintiffs' Verified Motion For Attorneys' Fees And Litigation Expenses And Incorporated Memorandum Of Law by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Pallett−Vasquez, Melissa) (Entered: 04/16/2007)
228 Plaintiff's MOTION for Attorney Fees And Litigation Expenses And Incorporated Memorandum Of Law by All Plaintiffs. Responses due by 4/30/2007 (Pallett−Vasquez, Melissa) (Entered: 04/16/2007)
229 Plaintiff's MOTION for Bill of Costs by All Plaintiffs. Responses due by 4/30/2007 (Attachments: # 1 Exhibit B)(Pallett−Vasquez, Melissa) (Entered: 04/16/2007)
230 MOTION for Bill of Costs (Revised) by All Plaintiffs. Responses due by 4/30/2007 (Attachments: # 1 # 2)(Pallett−Vasquez, Melissa) (Entered: 04/17/2007)
231 NOTICE by All Plaintiffs re 228 Plaintiff's MOTION for Attorney Fees And Litigation Expenses And Incorporated Memorandum Of Law OF FILING EXHIBITS (Attachments: # 1 Affidavit William Hill# 2 Exhibit 1A# 3 Exhibit 1B# 4 Exhibit 1C# 5 Exhibit 1Da# 6 Exhibit 1Db# 7 Exhibit 1Dc# 8 Exhibit E# 9 Exhibit F# 10 Exhibit G# 11 Exhibit H# 12 Exhibit I# 13 Exhibit J# 14 Exhibit K# 15 Exhibit L# 16 Exhibit M# 17 Exhibit N# 18 Exhibit 1O# 19 Exhibit 1P# 20 Exhibit Q# 21 Exhibit 2# 22 Exhibit 2A# 23 Exhibit 2B# 24 Exhibit 3# 25 Exhibit 3A# 26 Exhibit 3B# 27 Exhibit 3C# 28 Exhibit 4A# 29 Exhibit 4B# 30 Exhibit 5# 31 Exhibit 6)(Pallett−Vasquez, Melissa) (Entered: 04/17/2007)
ENDORSED ORDER granting 227 Motion for Leave to File Excess Pages. Approved by Judge Donald M. Middlebrooks on 4/17/2007. (lc2) (Entered: 04/17/2007)
232 Corrected MOTION for Attorney Fees and Litigation Expenses by All Plaintiffs. Responses due by 5/1/2007 (Pallett−Vasquez, Melissa) (Entered: 04/17/2007)
233 NOTICE by All Plaintiffs re 231 Notice (Other), Notice (Other), Notice (Other) OF FILING REVISED EXHIBIT 4 (Attachments: # 1 Exhibit 4a)(Pallett−Vasquez, Melissa) (Entered: 04/17/2007)
234 Notice of Docket Correction: Added attachment descriptions re 230 MOTION for Bill of Costs (Revised), Notice of Instruction to Filer: In the future add proper description to attachments. (nt) (Entered: 04/18/2007)
235 Plaintiff's MOTION for Extension of Time to File Response/Reply as to 226 Response in Opposition to Motion for New Trial or to Alter or Amend Judgment by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Pallett−Vasquez, Melissa) (Entered: 04/20/2007)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 20 of 23

04/24/2007 04/24/2007 04/27/2007 04/30/2007 05/02/2007
05/03/2007 05/11/2007 05/11/2007 05/17/2007 05/17/2007 05/17/2007 05/18/2007 05/21/2007 05/24/2007 05/24/2007

ENDORSED ORDER granting 235 Motion for Extension of Time to File Response/Reply. Approved by Judge Donald M. Middlebrooks on 4/24/2007.(lc2) (Entered: 04/24/2007)
236 MOTION Dissolve Temporary Injunction by City of Boca Raton. (Attachments: # 1 Exhibit 1)(Mandel, Matthew) (Entered: 04/24/2007)
237 Plaintiff's MOTION for Extension of Time to File Response/Reply as to 226 Response in Opposition to Motion for New Trial by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Enlargement of Time)(Pallett−Vasquez, Melissa) (Entered: 04/27/2007)
238 Unopposed MOTION for Extension of Time to File Response/Reply as to 232 Corrected MOTION for Attorney Fees and Litigation Expenses, 230 MOTION for Bill of Costs (Revised) by City of Boca Raton. (Mandel, Matthew) (Entered: 04/30/2007)
239 ORDER ***SEE ORDER FOR DETAILS. granting in part and denying in part 237 Motion for Extension of Time to File Response/Reply re 237 Plaintiff's MOTION for Extension of Time to File Response/Reply as to 226 Response in Opposition to Motion for New Trial, 238 Unopposed MOTION for Extension of Time to File Response/Reply as to 232 Corrected MOTION for Attorney Fees and Litigation Expenses, 230 MOTION for Bill of Costs (Revised), granting in part and denying in part 238 Motion for Extension of Time to File Response/Reply re 237 Plaintiff's MOTION for Extension of Time to File Response/Reply as to 226 Response in Opposition to Motion for New Trial, 238 Unopposed MOTION for Extension of Time to File Response/Reply as to 232 Corrected MOTION for Attorney Fees and Litigation Expenses, 230 MOTION for Bill of Costs (Revised) Responses due by 5/17/2007 Replies due by 5/3/2007.Signed by Judge Donald M. Middlebrooks on 5/2/2007. (sw) (Entered: 05/02/2007)
240 REPLY to Response to Motion re 222 MOTION for New Trial or to Alter or Amend Judgment filed by All Plaintiffs. (Pallett−Vasquez, Melissa) (Entered: 05/03/2007)
241 RESPONSE in Opposition re 236 MOTION Dissolve Temporary Injunction [Partial Opposition] filed by Bobby Hoover, Jeffrey O, Todd C, Doug B. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Green, James) (Entered: 05/11/2007)
242 Plaintiff's MOTION for Hearing re 236 MOTION Dissolve Temporary Injunction by Bobby Hoover, Jeffrey O, Todd C, Doug B. (Green, James) (Entered: 05/11/2007)
243 Unopposed MOTION for Leave to File Excess Pages by City of Boca Raton. (Mandel, Matthew) (Entered: 05/17/2007)
244 MEMORANDUM in Opposition re 232 Corrected MOTION for Attorney Fees and Litigation Expenses filed by City of Boca Raton. (Mandel, Matthew) (Entered: 05/17/2007)
245 MEMORANDUM in Opposition re 230 MOTION for Bill of Costs (Revised) filed by City of Boca Raton. (Mandel, Matthew) (Entered: 05/17/2007)
246 ENDORSED ORDER granting 243 Motion for Leave to File Excess Pages.Approved by Judge Donald M. Middlebrooks on 5/18/2007. (lc2) (Entered: 05/18/2007)
247 REPLY to Response to Motion re 236 MOTION Dissolve Temporary Injunction filed by City of Boca Raton. (Attachments: # 1 Exhibit 1)(Mandel, Matthew) (Entered: 05/21/2007)
248 NOTICE by City of Boca Raton re 244 Memorandum in Opposition re 232 Plaintiffs' Corrected Verified Motion for Attorneys' Fees and Litigation Expenses (Mandel, Matthew) (Entered: 05/24/2007)
249 Plaintiff's MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Pallett−Vasquez, Melissa) (Entered: 05/24/2007)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 21 of 23

05/24/2007
05/24/2007
05/24/2007 05/29/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007 08/31/2007
09/05/2007
09/05/2007
09/05/2007

250 REPLY to Response to Motion re 232 Corrected MOTION for Attorney Fees and Litigation Expenses filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 (Transcript)# 2 Exhibit 2 (Fl Justice)# 3 Exhibit 3 (Proskauer)# 4 Exhibit 4 (Bilzin)# 5 Exhibit 5 (Steel))(Pallett−Vasquez, Melissa) (Entered: 05/24/2007)
251 REPLY to Response to Motion re 230 MOTION for Bill of Costs (Revised) filed by All Plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(Pallett−Vasquez, Melissa) (Entered: 05/24/2007)
252 NOTICE by All Plaintiffs re 244 Memorandum in Opposition of Filing Opposition to Defendant's Request for Evidentiary Hearing (Pallett−Vasquez, Melissa) (Entered: 05/24/2007)
253 ENDORSED ORDER granting 249 Motion for Leave to File Excess Pages. Approved by Judge Donald M. Middlebrooks on 5/29/2007. (lc2) (Entered: 05/29/2007)
254 TRANSCRIPT of Bench Trial Proceedings held on 1/22/07 @9:01 a.m. before Judge Donald M. Middlebrooks. Court Reporter: Karl Shires 1−346 pages.. (bg) (Entered: 06/12/2007)
255 TRANSCRIPT of Bench Trial Proceedings held on 1/23/07 @9:00 a.m. Volume 2 before Judge Donald M. Middlebrooks. Court Reporter: Karl Shires 347−648 pages.. (bg) (Entered: 06/12/2007)
256 TRANSCRIPT of Bench Trial Proceedings Volume 3 held on 1/24/07 @9:00 a.m. before Judge Donald M. Middlebrooks. Court Reporter: Karl Shires 649−951 pages.. (bg) (Entered: 06/12/2007)
257 TRANSCRIPT of Bench Trial Proceedings Volume 4 held on 1/26/07 @ 9:00 a.m. before Judge Donald M. Middlebrooks. Court Reporter: Karl Shires 952−1238 pages.. (bg) (Entered: 06/12/2007)
258 TRANSCRIPT of Bench Trial Proceedings Volume 5 held on 1/29/07 @1:02 p.m. before Judge Donald M. Middlebrooks. Court Reporter: Karl Shires 1239−1376 pages.. (bg) (Entered: 06/12/2007)
259 ORDER denying 222 Motion for New Trial Signed by Judge Donald M. Middlebrooks on 8/17/2007. (sw) (Entered: 08/21/2007)
260 ORDER granting 236 Motion Signed by Judge Donald M. Middlebrooks on 8/17/2007. (sw) (Entered: 08/21/2007)
261 ORDER granting in part and denying in part 230 Motion for Bill of Costs, granting in part and denying in part 232 Motion for Attorney Fees Signed by Judge Donald M. Middlebrooks on 8/17/2007. (sw) (Entered: 08/21/2007)
262 ORDER denying as moot 242 Motion for Hearing Signed by Judge Donald M. Middlebrooks on 8/17/2007. (sw) (Entered: 08/21/2007)
263 First MOTION for Reconsideration Resident Plaintiffs' Motion for Reconsideration of Order on Plaintiffs' Revised Verified Motion for Attorneys' Fees and Litigation Expenses by Jeffrey O. (Attachments: # 1 Exhibit A# 2 Text of Proposed Order)(Green, James) (Entered: 08/31/2007)
264 Plaintiff's MOTION to Amend/Correct 261 Order on Motion for Bill of Costs, Order on Motion for Attorney Fees by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc. Responses due by 9/19/2007 (Attachments: # 1 Exhibit A)(Hill, William) (Entered: 09/05/2007)
265 NOTICE by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc re 264 Plaintiff's MOTION to Amend/Correct 261 Order on Motion for Bill of Costs, Order on Motion for Attorney Fees (Attachments: # 1 Text of Proposed Order)(Hill, William) (Entered: 09/05/2007)
266 NOTICE by Doug B Resident Plaintiffs' Certification Regarding Meet and Confer on Motion for Reconsideration of Order on Plaintiffs' Revised Verified Motion for Attorneys' Fees and Litigation Expenses (Green, James) (Entered: 09/05/2007)

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 22 of 23

09/05/2007
09/20/2007 09/20/2007 09/20/2007 09/20/2007 09/21/2007 09/24/2007 10/01/2007 10/04/2007 10/10/2007 12/03/2007
01/25/2008 01/29/2008 02/14/2008 04/02/2008

267 Plaintiff's MOTION for Joinder in 263 First MOTION for Reconsideration Resident Plaintiffs' Motion for Reconsideration of Order on Plaintiffs' Revised Verified Motion for Attorneys' Fees and Litigation Expenses by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc. (Hill, William) (Entered: 09/05/2007)
268 MEMORANDUM in Opposition re 263 First MOTION for Reconsideration Resident Plaintiffs' Motion for Reconsideration of Order on Plaintiffs' Revised Verified Motion for Attorneys' Fees and Litigation Expenses filed by City of Boca Raton. (Mandel, Matthew) (Entered: 09/20/2007)
269 MEMORANDUM in Opposition re 267 Plaintiff's MOTION for Joinder in 263 First MOTION for Reconsideration Resident Plaintiffs' Motion for Reconsideration of Order on Plaintiffs' Revised Verified Motion for Attorneys' Fees and Litigation Expenses filed by City of Boca Raton. (Mandel, Matthew) (Entered: 09/20/2007)
271 NOTICE OF APPEAL by Regency Properties of Boca Raton, Inc and Awakenings of Florida, Inc re: 220 Findings of Fact &Conclusions of Law, 259 Order on Motion for New Trial, 221 Judgment Filing fee $ 455.00, receipt number 966930. Copies to USCA and Counsel of Record. (amb) (Entered: 09/21/2007)
Transmission of Notice of Appeal, Docket Sheet, Judgment, and Orders under Appeal to US Court of Appeals re 271 Notice of Appeal, (amb) (Entered: 09/21/2007)
270 MEMORANDUM in Opposition re 267 Plaintiff's MOTION for Joinder in 263 First MOTION for Reconsideration Resident Plaintiffs' Motion for Reconsideration of Order on Plaintiffs' Revised Verified Motion for Attorneys' Fees and Litigation Expenses filed by City of Boca Raton. (Mandel, Matthew) (Entered: 09/21/2007)
272 MEMORANDUM in Opposition re 264 Plaintiff's MOTION to Amend/Correct 261 Order on Motion for Bill of Costs, Order on Motion for Attorney Fees filed by City of Boca Raton. (Mandel, Matthew) (Entered: 09/24/2007)
273 NOTICE of Receipt of Transmittal Letter from USCA on 09/24/2007 Re:USCA Case Number :07−14478−D for 271 Notice of Appeal, filed by Regency Properties of Boca Raton, Inc,, Awakenings of Florida, Inc,. (amb) (Entered: 10/01/2007)
274 REPLY to Response to Motion re 264 Plaintiff's MOTION to Amend/Correct 261 Order on Motion for Bill of Costs, Order on Motion for Attorney Fees filed by Regency Properties of Boca Raton, Inc, Awakenings of Florida, Inc. (Pallett−Vasquez, Melissa) (Entered: 10/04/2007)
275 TRANSCRIPT INFORMATION FORM by Jeffrey O re 271 Notice of Appeal,. No Transcript Requested. All necesary transcripts on file. USCA #07−14478−D (amb) (Entered: 10/11/2007)
276 ORDER of DISMISSAL from USCA pursuant to this appeal for want of prosecution because the appellant has failed to file appellant's brief and record excerpts within the time fixed by the rules as to 271 Notice of Appeal, filed by Regency Properties of Boca Raton, Inc,, Awakenings of Florida, Inc, USCA #07−14478−DD (amb) (Entered: 12/03/2007)
277 Notification of Ninety Days Expiring by Doug B re 263 First MOTION for Reconsideration Resident Plaintiffs' Motion for Reconsideration of Order on Plaintiffs' Revised Verified Motion for Attorneys' Fees and Litigation Expenses filed by Jeffrey O, (Green, James) (Entered: 01/25/2008)
278 ORDER denying 263 Motion for Reconsideration. Signed by Judge Donald M. Middlebrooks on 1/28/08. (lk) (Entered: 01/29/2008)
279 ORDER granting in part and denying in part 264 Motion to Amend/Correct Order awarding Attorneys' fees.Signed by Judge Donald M. Middlebrooks on 2/14/08. (lk) (Entered: 02/14/2008)
280 NOTICE by City of Boca Raton of Filing Corporate Plaintiffs' Satisfaction of Award of Nominal Damages and Satisfaction of Award of Attorneys' Fees, Litigation Expenses and Costs (Attachments: # 1 Corporate Plaintiffs' Satisfaction of Award of Nominal Damages and Award of Attorneys' Fees, Litigation Expenses

Case: 9:03-cv-80178 As of: 05/12/2011 01:21 PM EDT 23 of 23

04/02/2008

and Costs)(Mandel, Matthew) (Entered: 04/02/2008)
281 NOTICE by City of Boca Raton of Individual Plaintiffs' Satisfaction of Award of Attorneys' Fees, Litigation Expenses and Costs (Attachments: # 1 Individual Plaintiffs' Satisfaction of Award of Attorneys' Fees, Litigation Expenses and Costs)(Mandel, Matthew) (Entered: 04/02/2008)