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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-21994-KMW

FLORIDA FAIR HOUSING ALLIANCE, INC.

Plaintiff

vs.

TOP WELL, LLC,

d/b/a PALM COURT APARTMENTS AT

WELLINGTON,

Defendant.

______________________________________/

RESPONSE IN OPPOSITION TO MOTION TO DISMISS

Plaintiff Florida Fair Housing Alliance, Inc. (“Plaintiff”) submits this Response in 

Opposition to Defendant Top Well, LLC doing business as Palm Court Apartments at 

Wellington’s (“Defendant”) Motion to Dismiss (D.E. 16). 

POSTURE AND BACKGROUND

1. Plaintiff seeks to dissolve the arbitrary barriers to housing that Defendant, as the 

owner of an apartment complex has created for Black and Hispanic individuals. In the words of 

Melissa, Defendant’s agent, “yes, with a prior criminal felony [Defendant] won’t accept you.” 

Black and Hispanic individuals are disproportionately more likely to be convicted of a felony in 

comparison to White individuals. Regardless of intent, Defendant’s facially neural practice and 

policy of steering away any and all suspected felons and automatically rejecting any and all 

convicted felons, both without any investigation or consideration whatsoever, has a disparate 

impact on Black and Hispanic individuals. 

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2. On June 30, 2020, Plaintiff filed the operative pleadings, to wit, Plaintiff’s First 

Amended Complaint [D.E. 11] (the “FAC”), wherein Plaintiff claims Defendant violated the Fair 

Housing Act (the “FHA”) under a theory of disparate impact. See FAC at ¶ 35 (wherein Plaintiff 

advances a single claim against Defendant for violating § 3604(d) of the FHA). 

3. The events precipitating the above-captioned action arise, in part, from the test 

Plaintiff conducted, via Plaintiff’s Field Tester (“FT”), of Defendant on March 13, 2020, due to 

suspicion that Defendant was not affording equal housing opportunities to all. FAC at ¶¶ 13, 15. 

Pointedly, at 12:58 p.m. on March 13, 2020, FT called Defendant and, after being connected to an 

agent of Defendant that identified herself as “Melissa,” FT was able to confirm that Defendant had 

a policy and/or practice of automatically rejecting, and/or otherwise steering away, any individual 

with any felony conviction. FAC at ¶ 17. 

4. As made clear in the FAC, Defendant’s response to FT regarding convicted-felon 

applicants (i.e., “yes, with a prior criminal felony [Defendant] won’t accept you,” see FAC at ¶ 

17) demonstrates that Defendant directs individuals convicted of any felony, the majority of which 

are disproportionately Black and Hispanic, away from the underlying property and otherwise 

automatically rejects all applicants with any felony conviction – again, the majority of which are 

disproportionately Black and Hispanic – without any consideration whatsoever. See FAC at 17. 

5. In support of Plaintiff’s disparate impact claim, Plaintiff dually offered statistical 

data showing exactly why Defendant’s screening methods resulted in a disparate impact on Black 

and Hispanic individuals. FAC at ¶¶ 9-10 (showing that Black and Hispanic individuals are 

disproportionately more likely to be convicted of a felony in comparison to White individuals, and 

as a result, Defendant’s needless refusal to consider applicants it (Defendant) merely suspects to 

have been convicted of a felony has a disparate impact on Black and Hispanic individuals).

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6. On July 21, 2020, Defendant filed the Motion to Dismiss [D.E. 16] now before this 

Court (the “Motion” or “Defendant’s Motion”). 

DEFENDANT’S MOTION TO DISMISS

7. The unconventional form and articulation of the Motion, as a whole, is perceived 

as claiming Plaintiff failed to state a claim, or more specifically, plead a prima facie case of 

disparate impact under the FHA. To this end, although nebulous, if given a generous reading, the 

specter of three theories emerge from Defendant’s Motion: [ 1 ] the FAC should be dismissed 

because “[P]laintiff does not allege [FT] told [Defendant] [FT’s] name or that [FT] was Hispanic”

(“Theory-1”), see Id. at ¶ 8; [ 2 ] the FAC should be dismissed because “Plaintiff has not plead, 

or event attempted to plead that the challenged practice caused, or predictably will cause a 

discriminatory effect” (“Theory-2”), see Id. at ¶ 23; and [ 3 ] the FAC should be dismissed because 

Plaintiff failed to state a claim under Inclusive Communities1(“Theory-3”), Motion at ¶ 24. 

STANDARD OF REVIEW

8. When considering a motion to dismiss for failure to state a claim under Federal 

Rule of Civil Procedure 12(b)(6), the court views the allegations as true and considers them in the 

light most favorable to the plaintiff. Speaker v. U.S. Dep’t of Health & Human Servs., 623 F.3d 

1371, 1379 (11th Cir. 2010). The court applies a “plausibility standard” that is guided by “two 

working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, the court accepts all factual 

allegations in the complaint as true, except for legal conclusions. Id. Second, the complaint only 

has to state a plausible claim for relief. Id. at 679. 

9. A complaint does not need detailed factual allegations. Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 555 (2007). If it sets forth the grounds for entitlement by more than mere labels, 

1 Tex. Dep't of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015).

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conclusions, and a formulaic recitation of the elements of the cause of action, it will survive a 

motion to dismiss. Id. “A claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). 

10. Thus, “a well-pleaded complaint may proceed even if it strikes a savvy judge that 

actual proof of those facts is improbable, and that a recovery is remote and unlikely.” Twombly, 

550 U.S. at 556; see also Iqbal, 556 U.S. at 678-79 (issue in resolving such a motion is not whether 

non-movant will prevail but whether he is entitled to offer evidence in support of his claims).

THEORY-1 FAILS

11. Defendant claims the FAC should be dismissed because “[P]laintiff does not allege 

[FT] told [Defendant] [FT’s] name or that [FT] was Hispanic. Motion at ¶ 8. This argument is 

without merit and illustrates that Defendant does not understand Plaintiff’s claim.

12. The relevancy of disclosing race, in a case very similar to this one, was addressed 

with specificity recently by the Middle District of Florida in Chambers v. Empire Network Realty, 

Inc., 2020 U.S. Dist. LEXIS 73064 (M.D. Fla. Apr. 27, 2020. In Chambers the court, in light of 

the arguments advanced by the involved defendant,

2

noted that “[d]efendant misunderstands 

[p]laintiff's claim,” further stating, that “[d]efendant's arguments may apply if [p]laintiff was 

bringing a disparate treatment claim, but [plaintiff] is not. Plaintiff is bringing only a disparate 

impact claim.” Chambers, 2020 U.S. Dist. LEXIS 73064 at *5-6 (emphasis added); see also Id. 

2 The Chambers court noted the defendant as arguing that [ 1 ] “the listing agent did not know that 

[the plaintiff] was black, and therefore, [the defendant] could not have discriminated against [the 

plaintiff] based on his race,” and [ 2 ] “the only information [the defendant] allegedly knew about 

[the plaintiff] was that he had a criminal history, and because the FHA does not prohibit 

discrimination based on criminal history, [the defendant] cannot be held liable for discrimination 

under the facts alleged.” Chambers, 2020 U.S. Dist. LEXIS 73064 at *5-6.

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at *5 (codifying that “a disparate impact claim challenges facially non-discriminatory ‘practices 

that have a disproportionately adverse effect on minorities and are otherwise unjustified by a 

legitimate rationale.’” (citing Inclusive Communities at 2513)).

THEORY-2 FAILS

Defendant claims the FAC should be dismissed because “Plaintiff has not plead, or event 

attempted to plead that the challenged practice caused, or predictably will cause a discriminatory 

effect.” Motion at ¶ 23. Defendant is wrong. 

13. As a preliminary matter, Plaintiff wants to make clear, Inclusive Communities

(discussed in more detail below) does not make the provision of statistical evidence a necessary 

component of a prima facie case of disparate impact. See, e.g., Corelogic Rental Prop. Sols., LLC, 

369 F. Supp. 3d 362, 379 (D. Conn. 2019) (rejecting the defendant’s argument that the plaintiffs’ 

“disparate impact claim fails because it is not supported by statistical evidence,” and doing so, 

recognizing that, although statistical evidence “is not required,” the plaintiffs had offered 

“statistical support for their claims.” (emphasis added)). In fact, the Supreme Court in Inclusive 

Communities cautions against the use of statistical evidence. See Inclusive Communities at 2522 

(“[b]ut disparate-impact liability has always been properly limited in key respects that avoid the 

serious constitutional questions that might arise under the FHA, for instance, if such liability were 

imposed based solely on a showing of a statistical disparity.” (emphasis added)). 

14. With that said, Plaintiff is not claiming statistical information is unhelpful or useless

in the context of a disparate impact claim. To the contrary, in the vein of utility, and although 

Inclusive Communities does not make the provision of statistical evidence a necessary component 

of a prima facie case of disparate impact, Plaintiff has clearly offered statistical information to

crystalize why Defendant’s decision to steer away and otherwise automatically reject convicted 

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felons away from its property has a disparate impact of Black and Hispanic individuals. See FAC

at ¶¶ 11-12.

15. In this light, we now look to Defendant’s claim that “Plaintiff has not plead, or 

event attempted to plead that the challenged practice caused, or predictably will cause a 

discriminatory effect.” As the above objectively illustrates, Defendant is simply wrong and 

otherwise ignores the contents of the pleadings. See FAC at ¶¶ 11-12 (wherein Plaintiff offers 

statistical data showing that Black and Hispanic individuals are disproportionately more likely to 

be convicted of a felony in comparison to White individuals, and as a result, Defendant’s facially 

neural practice and policy of steering away any and all suspected felons and automatically rejecting 

any and all convicted felons, both without any investigation or consideration whatsoever, has a 

disparate impact on Black and Hispanic individuals).

THEORY-3 FAILS

16. Defendant claims the FAC should be dismissed because Plaintiff failed to state a 

claim under Inclusive Communities. Defendant is wrong, as Plaintiff’s pleadings squarely adhere 

to both the pleading standard the Supreme Court set in Inclusive Communities, and for that matter, 

Plaintiff’s claims represents the heartland of disparate impact liability and warrant prompt 

resolution. See Inclusive Communities at 2523 (“Courts must therefore examine with care whether 

a plaintiff has made out a prima facie case of disparate impact and prompt resolution of these cases 

is important.”).

INCLUSIVE COMMUNITIES

17. Inclusive Communities represents the Supreme Court’s codification of disparate 

impact liability under the FHA. 135 S. Ct. 2507 at 2525 (“The Court holds that disparate-impact 

claims are cognizable under the Fair Housing Act upon considering its results-oriented language, 

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the Court’s interpretation of similar language in Title VII and the ADEA, Congress’ ratification of 

disparate-impact claims in 1988 against the backdrop of the unanimous view of nine Courts of 

Appeals, and the statutory purpose.”). With that said, the Supreme Court made clear that “[a]

plaintiff who fails to allege facts at the pleading stage or produce statistical evidence

demonstrating a causal connection cannot make out a prima facie case of disparate impact.” 

Inclusive Communities, 135 S. Ct. 2507 at 2524; Id. at 2524 (exemplifying that a plaintiff must 

demonstrate, whether via allegations or statistical evidence, a “causal connection” between the

specific adverse racial or ethnic disparity and the challenged policy).

18. With respect to the underlying facts, however, Inclusive Communities does not 

exemplify the “heartland” disparate impact claims. 135 S. Ct. 2507 at 2525 (wherein the Supreme 

Court made clear, “[u]nlike the heartland of disparate-impact suits targeting artificial 

barriers to housing, the underlying dispute in this case involves a novel theory of liability.” 

(emphasis added)). In the court’s own words regarding the case, “[t]his case, on remand, can be 

seen simply as an attempt to second-guess which of two reasonable approaches a housing authority 

should follow in the sound exercise of its discretion in allocating tax credits for low-income 

housing.” (emphasis added)). Inclusive Communities, 135 S. Ct. 2507 at 2525. Put differently, the 

facts of Inclusive Communities have limited overlap with the facts of a “heartland” disparate 

impact claim, such as that advanced here by Plaintiff.

19. Nevertheless, despite the ill-suited factual circumstances of Inclusive 

Communities, the Supreme Court presented a directive to the lower courts, stating that “[r]emedial 

orders in disparate-impact cases should concentrate on the elimination of the offending practice 

that ‘arbitrar[ily]... operate[s] invidiously to discriminate on the basis of rac[e],’ [quoting Griggs 

v. Duke Power Co., 401 U.S. 424, 431 (1971)], and [i]f additional measures are adopted, courts 

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should strive to design them to eliminate racial disparities through race-neutral means.” Inclusive 

Communities at 2524.

20. Turning to the Motion, Defendant claims: 

Under Inclusive Communities, therefore, a prima facie case of

disparate impact discrimination will fail unless it demonstrates both

relevant statistical disparity (evidence comparing members of the

protected class affected by the challenged policy with non- members 

affected by the challenged policy), and also a plausible showing of 

“robust causality” between the challenged policy and that statistical 

disparity. Inclusive Communities at 2522-252. Succinctly, a 

“plaintiff who fails to allege facts at the pleading stage or produce 

statistical evidence demonstrating a causal connection cannot make 

out a prima facie case of disparate impact.” Id.; see also Oviedo 

Town Center 11, L.L.L.P. v. City of Oviedo, Florida, 759 Fed.Appx.

828 (l Cir. 2018) (granting defendants' 12(b)(6) motion to dismiss

complaint discrimination under the Fair Housing Act).

Motion at ¶ 24. Contrary to Defendant’s reading of the FAC, the FAC satisfies such requirements. 

See FAC at ¶¶ 11-12. 

21. In the context of the “robust causality requirement” imposed by the Supreme Court 

in Inclusive Communities, the Oviedo3court observed that, “[a]lthough [the Supreme Court] left 

space for the lower courts to elaborate on what could meet this causality requirement, the Court 

was crystal clear that some allegations would fall far short: ‘a plaintiff who fails to allege facts at 

the pleading stage or produce statistical evidence demonstrating a causal connection cannot 

make out a prima facie case of disparate impact.’” Oviedo at 834 (emphasis added) (citing 

Inclusive Communities at 2523). More pointedly, the Oviedo court stated: 

Even before the Supreme Court spoke to this question, this Court had 

arrived at similar conclusions, entirely consistent with Inclusive 

Communities, about the need for a relevant statistical showing in order 

to support a disparate-impact claim under the FHA, in [and Schwartz 4].

There, the plaintiff, who operated halfway houses for recovering 

3 Oviedo Town Ctr. II, L.L.L.P. v. Ciy of Oviedo, 759 F. App'x 828 (11th Cir. 2018).

4 Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008).

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substance abusers in the City of Treasure Island, Florida, had been cited 

by the City for violating a zoning ordinance that limited occupancy 

turnover. Id. at 1205. He sued the city under the FHA, alleging, among 

other things, that the zoning ordinance had a disparate impact on the 

rights of the disabled (the recovering substance abusers). Id. The claim 

failed because the plaintiff provided no comparative data to support 

his prima facie case. Id. at 1217-18. We held that in order to show 

disparate impact, the plaintiff must provide evidence comparing 

members of the protected class affected by the ordinance with nonmembers affected by the ordinance. See Id. at 1217. If the percentage 

of members of the protected class (recovering substance abusers) 

affected was higher than the percentage of nonmembers impacted, this 

disproportionality could form the basis for a prima facie case of 

disparate impact. The plaintiff in Schwarz had failed to provide an 

adequate statistical foundation because he presented “no comparative 

data at all,” but instead simply offered what we termed a “bald 

assumption” that the ordinance's effect on his houses meant that the 

handicapped had necessarily been disparately impacted. Id. at 1218.

Oviedo at 834-35. 

22. The “comparative data” identified and discussed in Oviedo and Schwartz does not 

nullify the validity of the comparative information and data proffered in the FAC. See FAC at ¶¶ 

11-12 (wherein Plaintiff offers statistical data showing that Black and Hispanic individuals are 

disproportionately more likely to be convicted of a felony in comparison to White individuals, and 

as a result, Defendant’s facially neural practice and policy of steering away any and all suspected 

felons and automatically rejecting any and all convicted felons, both without any investigation or 

consideration whatsoever, has a disparate impact on Black and Hispanic individuals). Instead, 

Oviedo exemplifies the threshold as the proffering of “evidence comparing members of the

protected class affected by the [alleged discriminatory practice] with non-members affected by the 

[alleged discriminatory practice]. Oviedo at 835. 

23. In simplest terms, “robust causality” is not a limitation on the means of establishing 

a prima facie case – rather – it is the causality threshold that “protects defendants from being held 

liable for racial disparities they did not create.” Inclusive Communities at 2523. As the FAC makes 

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clear, Plaintiff brought “this action not to hold Defendant accountable for the disproportionate 

conviction of Black and Hispanic individuals, but rather, to remove the artificial barriers to

housing created by Defendant that disproportionately and unjustly deny housing to Black and 

Hispanic individuals.” FAC at 1. 

24. Just as the plaintiff Corelogic, see 369 F. Supp. 3d 362 at 379, although not 

required, Plaintiff has alleged sufficient statistical support showing why Defendant’s facially 

neural practice and policy of steering away any and all suspected felons and automatically rejecting 

any and all convicted felons, both without any investigation or consideration whatsoever, has 

a disparate impact on Black and Hispanic individuals. As alleged in the FAC: 

[A]ccording to the Bureau of Justice Statistics: 30% are White, 33% 

are Black, and 25% are Hispanic. In comparison to the 

demographics of the United States population (the total of which is 

estimated at 308 million), however, according to the U.S. Census 

Bureau: 63% of the population is White, 13% of the population is 

Black, 16% of the population is Hispanic.

Despite making up a fractional percentage of the United 

States population in comparison to whites, Hispanic individuals, for 

example, are three times more likely to be convicted and 

incarcerated than that of white individuals. [citation omitted] Thus, 

in simplest terms, a policy, procedure, or practice that arbitrarily 

denies, without any consideration, housing to individuals with a 

felony conviction will absolutely have a disparate impact on Black 

and Hispanic individuals.

See FAC at ¶¶ 9-10 (citations omitted). 

25. Simply put, Plaintiff has, by and through the FAC, plead a prima facie case of 

disparate impact. See Jackson v. Tryon Park Apartments, Inc., 2019 U.S. Dist. LEXIS 12473, at 

*7 (W.D.N.Y. Jan. 25, 2019) (denying motion to dismiss, concluding that “Plaintiff's Amended 

Complaint sufficiently alleges a disparate impact claim under the FHA. Plaintiff alleges that 

Defendants have an outwardly neutral practice, i.e., ‘automatically excluding a person with a 

felony conviction from living and renting at Defendants’ apartment complex.’ Plaintiff also alleges 

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that ‘the policies and practices of Defendants have a disparate impact on applicants for housing, 

on the basis of race and color,’ because ‘empirical evidence shows that nationally, and in New 

York State, blanket bans on eligibility, based on criminal history, result in the denial of housing

opportunities at a disproportionate rate for African Americans and minorities.’ Because the 

statistical racial disparity that Plaintiff relies on is directly related to Defendants’ policy of 

excluding a person with a felony conviction from renting at Defendants’ property, Plaintiff has 

plausibly alleged a disparate impact claim under the FHA.” (citations omitted); see also Sams v. 

GA W. Gate, LLC, 2017 U.S. Dist. LEXIS 13168, at *12-14 (S.D. Ga. Jan. 30, 2017) (denying 

motion to dismiss, concluding “that Plaintiffs have proffered sufficient evidence to survive a 

motion to dismiss. Plaintiffs have provided evidence that African Americans are twice as likely to 

have criminal convictions as are caucasians. Plaintiffs have also alleged that in 2014, African 

Americans represented 36% of the prison population in the United States but only 12% of the 

country's total population. As a result, Plaintiffs argue that Defendants' 99-year criminal history 

policy adversely affects African Americans because it adversely applies to Defendants' African 

American tenants. This is sufficient to avoid a motion to dismiss.” (citations omitted)). 

CONCLUSION

Plaintiff has sufficient plead a prima facie case of disparate impact against Defendant under 

Fair Housing Act and, respectfully, Defendant’s Motion to Dismiss (D.E. 16) should be denied 

without delay.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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DATED: August 7, 2020

Respectfully Submitted,

/s/ Thomas Patti .

JIBRAEL S. HINDI, ESQ.

Florida Bar No.: 118259

E-mail: jibrael@jibraellaw.com

THOMAS J. PATTI, ESQ.

Florida Bar No.: 118377

E-mail: tom@jibraellaw.com

The Law Offices of Jibrael S. Hindi

110 SE 6th Street, Suite 1744

Fort Lauderdale, Florida 33301

Phone: 954-907-1136

Fax: 855-529-9540

COUNSEL FOR PLAINTIFF

CERTIFICATE OF SERVICE

The undersigned certifies that on August 7, 2020, the forgoing was electronically via the 

Court’s CM/ECF system on all counsel of record.

/s/ Thomas J. Patti .

THOMAS J. PATTI, ESQ.

Florida Bar No.: 118377

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