1

United States District Court

for the

Southern District of Florida

Florida Fair Housing Alliance, Inc., 

Plaintiff,

v.

Park East-West Ltd., Defendant.

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Civil Action No. 20-21976-Civ-Scola

Order Granting Motion to Dismiss

Plaintiff Florida Fair Housing Alliance (“FFHA”), claims that Defendant 

Park East-West Ltd. violated 42 U.S.C. § 3604(d) of the Fair Housing Act by

allegedly denying housing to FFHA’s field tester based on the field tester’s 

felony criminal history. The Defendant moved to dismiss based on Federal 

Rules of Procedures 12(b)(1) and 12(b)(6). After careful consideration, the Court 

grants the Defendant’s motions to dismiss. 

1. Background1

The FFHA, established on February 14, 2020, is a Florida non-profit

corporation with the stated purpose of “eliminating prejudice and 

discrimination of human and civil rights secured by law.” (ECF No. 15, App’x 

B.) As part of its mission in combatting prejudice and discrimination, the FFHA

claims to “engage[] in education and outreach; provide[] counseling to 

individuals facing discrimination; work[] with local and federal officials to 

enhance fair housing laws and their enforcement; undertake[] investigations to 

uncover unlawful discrimination; and, when necessary, initiate[] enforcement 

actions.” (ECF No. 12 at ¶6.) 

On April 7, 2020, a field tester for the FFHA spoke with an agent for the 

Defendant to inquire about the availability of a one-bedroom apartment at 

Defendant’s apartment complex in Winter Park, Florida. The Defendant’s agent 

told the field tester housing was available and asked when the field tester could 

come to view apartments. The field tester informed the Defendant’s agent that 

he was a “convicted felon” and asked if that would cause him to be denied for 

housing. (ECF No. 22 at 2.) The Defendant’s agent first responded he “could 

not say yes or no” but after further pressing by the tester, FFHA’s field tester 

was told he would “probably” be denied given his status as a convicted felon.

1 The Court accepts the FFHA’s factual allegations as true for the purposes of evaluating the 

Defendants’ motions to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 

1369 (11th Cir. 1997).

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(ECF No. 22 at 2.) Based on this testing, the Plaintiff contends that the 

defendant has a “practice of, without any review or investigation, turning away 

individuals with a felony criminal record.” (ECF No. 12 at ¶38.) The Plaintiff 

argues that this has a disparate impact on Black and Hispanic people in 

violation of Section 3604(d) the Fair Housing Act.

In response to Plaintiff’s claim, on July 1, 2020, the Defendant filed its 

motion to dismiss. The Defendant argues that FFHA’s complaint must be 

dismissed as FFHA lacks standing pursuant to Federal Rule of Civil Procedure 

12(b)(1). Alternatively, the Defendant argues that even if FFHA has standing, 

FFHA has nonetheless failed to state a claim for disparate impact 

discrimination under the Fair Housing Act and therefore the complaint must be 

dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

2. Standard of Review

When considering a motion to dismiss, the Court must accept all the 

complaint’s allegations as true, construing them in the light most favorable to 

the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Under 

Federal Rule of Civil Procedure 8, a pleading need only contain “a short and 

plain statement of the claim showing that the pleader is entitled to relief.” Fed. 

R. Civ. P. 8(a)(2). The plaintiff must nevertheless articulate “enough facts to 

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 129

S. Ct. 1937, 1949 (2009). “Threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not suffice.” Id. Thus, a 

pleading that offers mere “labels and conclusions” or “a formulaic recitation of 

the elements of a cause of action” will not survive dismissal. Id. In applying the 

Supreme Court’s directives in Twombly and Iqbal, the Eleventh Circuit has 

provided the following guidance to the district courts:

In considering a motion to dismiss, a court should 1) eliminate any 

allegations in the complaint that are merely legal conclusions; and 

2) where there are well-pleaded factual allegations, assume their 

veracity and then determine whether they plausibly give rise to an 

entitlement to relief. Further, courts may infer from the factual 

allegations in the complaint obvious alternative explanation[s], 

which suggest lawful conduct rather than the unlawful conduct 

the plaintiff would ask the court to infer.

Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138 (11th 

Cir. 2011) (citations omitted).

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3. Analysis

A. Legal Standards

Pursuant to a theory of disparate impact discrimination, FFHA claims 

that the Defendant has violated Section 3604(d) of the Fair Housing Act which 

makes it unlawful to “represent to any person because of race, color, religion, 

sex, handicap, familial status, or national origin that any dwelling is not 

available for inspection, sale, or rental when such dwelling is in fact so 

available.” 42 U.S.C. § 3604(d). In Texas Department of Housing and 

Community Affairs v. The Inclusive Communities Project, Inc., the Supreme 

Court considered the question of “whether, under a proper interpretation of the 

[Fair Housing Act], housing decisions with a disparate impact are prohibited.”

576 U.S. 519, 530 (2015). Inclusive Communities ultimately held that 

“disparate-impact claims are cognizable under the Fair Housing Act.” Id. at 

545. 

In order to plead a disparate impact claim, a plaintiff must allege that a 

defendant has a practice that is “not intended to discriminate” but nonetheless 

has a “disproportionately adverse effect on minorities.” Ricci v. DeStefano, 557 

U.S. 557, 577 (2009). The practice must also be unjustified by a legitimate 

rationale. Inclusive Communities, 576 U.S. at 541. Where a plaintiff relies on a 

statistical disparity to allege their disparate impact claim, the claim “must fail”

if the plaintiff cannot point to a defendant’s policy causing the disparity. Id. at 

542. Put another way, there must be a “causal connection” between the offered 

statistics and the defendant’s practice. Id. at 543. Accordingly, under the Fair 

Housing Act, “racial imbalance . . . does not, without more, establish a prima 

facie case of disparate impact and thus” defendants are protected “from being 

held liable for racial disparities they did not create.” Id. at 542 (internal 

citations omitted).

Private citizens and indeed organizations like FFHA may prosecute 

claims under the Fair Housing Act, provided they have appropriate standing to 

do so. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982). To 

adequately allege standing, a plaintiff must show: (1) they have suffered an 

“injury in fact” that is concrete and particularized and actual or imminent, i.e. 

not conjectural or hypothetical; (2) that there is a causal connection between 

the injury complained of that is fairly traceable to the defendant and not some 

third party not before a court; and (3) that it is likely and not merely 

speculative that the injury will be redressed by a favorable opinion. Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). For organizational plaintiffs

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like FFHA, an organization can adequately allege standing if it is able show “a 

concrete and demonstrable injury to the organization’s activities” that is “more 

than simply a setback to the organization’s abstract interests.” Havens 455 

U.S. at 379.

The Eleventh Circuit, expanding on Havens, has further explained that 

an “organization has standing to sue on its own behalf if the defendant’s illegal 

acts impair its ability to engage in its projects by forcing the organization to 

divert resources to counteract those illegal acts.” Fla. State Conference of 

N.A.A.C.P. v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008). The organization 

must “demonstrate the asserted illegal acts are in conflict with the 

organization’s mission.” People for the Ethical Treatment of Animals, Inc. v. 

Miami Seaquarium, 189 F. Supp. 3d 1327, 1337 (S.D. Fla. 2016) (Ungaro, J.)

(discussing Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1342 (11th Cir. 2014)). 

As standing is a jurisdictional inquiry, the Court must first decide if FFHA has 

adequately alleged standing before it may consider other issues. Am. Civil 

Liberties Union of Fla. v. Dixie Cty., Fla., 690 F.3d 1244, 1247 (11th Cir. 2012). 

B. Standing

FFHA claims to have adequately plead standing on the basis that the 

Defendant’s alleged “practice of, without any review or investigation, turning 

away individuals with a felony criminal record” required the FFHA to “devote 

resources to counteract the . . . complained actions of Defendant” and “divert 

resources from . . . its counseling, outreach, and educational efforts” causing 

injury to the organization. (ECF No. 12 at ¶32, 38; ECF No. 22 at 7-8.) Taking 

FFHA’s allegations as true and construing them in the light most favorable to 

the Plaintiff, the Court finds that the FFHA has failed to adequately plead

standing based on the diversion of its resources. 

While the Defendant contends that FFHA has not suffered injury in fact 

as FFHA’s tester “was correctly told that housing was available,” (ECF No. 15 at 

12) the Defendant conflates the tester’s individual standing with organizational 

standing. Had FFHA based its standing on its tester’s capacity to sue, FFHA 

would not have suffered an injury in fact and would not have standing as the 

tester was provided accurate information as to the availability of housing. See 

Havens, 455 U.S. at 374-75 (finding lack of standing where tester was provided 

“accurate information concerning the availability of housing.”). However, 

FFHA’s allegations as to injury in fact are rooted in injury to the FFHA as an 

organization, namely that the FFHA was required to divert resources from its 

other advocacy activities to counteract the Defendant’s actions. See Id. at 379 

(“If, as broadly alleged, petitioners' steering practices have perceptibly impaired 

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HOME's ability to provide counseling and referral services . . . there can be no 

question that the organization has suffered injury in fact.”). Based on these 

allegations, FFHA has suffered injury in its own right as an organization.

However, the inquiry as to injury in fact does not end there as FFHA’s 

resources must have been diverted to counteract the allegedly illegal actions of 

the Defendant. See Browning, 522 F.3d at 1165. Here, FFHA contends that 

Defendant has an illegal “practice of, without any review or investigation, 

turning away individuals with a felony criminal record.” (ECF No. 12 at ¶38.)

Contrary to the FFHA’s contentions, the complaint and FFHA’s testing reveal 

the Defendant does not have such a practice in place. Rather, FFHA’s testing 

reveals that Defendant may turn away individuals with felony convictions.

While FFHA’s tester was told he “probably” would be denied housing as a 

convicted felon, “probably” nonetheless implies that the tester’s application 

would be considered and potentially approved even if there was a greater 

likelihood that the application may ultimately be denied (though denial is by no 

means the preordained result FFHA represents in its complaint). The corollary

to this is that the FFHA’s testing revealed that some applicants with felony 

criminal histories will have their applications approved by the Defendant.

Ultimately, whether an individual is denied for housing could be based on a 

variety of legitimate factors that are entirely independent of an applicant’s 

felony criminal history. Indeed, it is not per se improper to consider criminal 

history when reviewing housing applications. Hall v. Philadelphia Hous. Auth.,

CIVIL ACTION NO. 17-5753, 2018 WL 263318, at *2 (E.D. Pa. Jan. 2, 2018) 

(The Fair Housing Act “does not preclude consideration of an individual’s 

criminal record in housing decisions.”). Accordingly, in addition to finding that 

FFHA has failed to allege injury in fact, the Court also has concerns as to 

whether Plaintiff has adequately plead causation and redressability under 

Lujan.

Notably, as well, the FFHA brings its claims pursuant to Section 3604(d) 

of the Fair Housing Act which prohibits the Defendant from representing to 

applicants that housing “is not available . . . when such dwelling is in fact so 

available” due to “race, color, religion, sex, handicap, familial status, or 

national origin.” 42 U.S.C. 3604(d). FFHA’s own testing reveals that the 

Defendant’s agent represented to the FFHA’s tester that housing was available

and invited the tester to “come take a look.” (ECF No. 12 at ¶15.) Accordingly, 

even had the FFHA adequately alleged standing it is nevertheless unclear if 

FFHA has a cognizable claim under the Fair Housing Act. 

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C. Disparate Impact

As the Court find that FFHA lacks standing, the Court need not reach 

FFHA’s disparate impact claims under the Fair Housing Act.

4. Conclusion

The Court therefore grants the Defendant’s motion to dismiss. (ECF No. 

15.) The complaint is dismissed without prejudice and without leave to amend. 

The Court directs the Clerk to close this case. Any pending motions are denied 

as moot.

Done and ordered in Miami, Florida on September 1, 2020.

________________________________

Robert N. Scola, Jr.

United States District Judge

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