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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT 

OF FLORIDA

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

FLORIDA FAIR HOUSING ALLIANCE, 

INC.

Plaintiff,

V.

TOP WELL. LLC d/b/a/ PALM COURT APARTMENTS

AT WELLINGTON

Defendant.

DEFENDANT’S REPLY TO PLAINTIFF’S RESPONSE IN OPPOSITION TO 

MOTION TO DISMISS

Defendant, Top Well, Inc, (Top Well) by and through the undersigned attorney files this 

Reply to Plaintiff’s Response to Motion to Dismiss and states:

INTRODUCTION

1) Plaintiff’s (Response) is based upon Plaintiff’s two-part fact pattern.

a. Plaintiff is a fair housing organization agency that “due to suspicions” (Paragraph 3) 

had its “Field Tester” make one phone call conduct an investigation. 

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b. The “field tester” made a single cold call to phone number 561-793-8500 was 

connected to someone he claims to be an agent of the Defendant who identified 

herself as Melissa. Tester asked whether rental property was available, to which 

Defendant responded, without hesitation, that property was available, namely, a twobedroom unit was available. Tester then asked whether his rental application would 

be denied due to (“FT’s) record felony conviction, to which Defendant retorted: “yes, 

with a prior criminal felony they won’t accept.” 

2. Based only upon those facts, Plaintiff advances a single claim against Defendant for violating 

§ 3604(d) of the FHA by causing a disparate impact (Paragraph 2). 

ISSUES, RESPONSE AND REPLY

3. The issues raised by Defendant in its 12(b)(6) motion and the Plaintiff’s responses and the 

Defendants replies to the issues are:

a. Although Plaintiff has alleged some national statistical data, none was for Palm Beach 

County. (MTD p, 11)

i. (Response, p, 5, 13, 14 and 15) Plaintiff offers a circular argument that says 

that statistical evidence is not necessary and that the Supreme Court in 

Inclusive Cmtys. Project, Inc.135 S. Ct. 2507, Cautions against using 

statistical evidence. 

1. Reply - The reason for the caution is that people will try to us it exactly 

as Plaintiff is trying to use it in this case. The HUD guidance of April 

4, 20161(HUD Guidance) states in Section 3 A paragraph 2:

1 Office of General Counsel Guidance on Application of Fair Housing Standards to Use of Criminal Records ...

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“Whether national or local statistical evidence should be used to evaluate a 

discriminatory effects claim at the first step of the analysis depends on the 

nature of the claim alleged and the fact of the case. Where state and local 

statistics should be presented where available and appropriate based on a 

housing providers market area ... 

In this case there is complex in Wellington Florida and there is no claim that 

it solicits outside its area. 

b. Plaintiff is not a Fair Housing organization but is actually a litigation mill. (MTD p, 

12 & 16).

i. Plaintiff did not respond to this statement. 

1. Reply – Plaintiff, in its first amended complaint, relies upon HUD 

Guidance to bolster its claim. However, HUD’s guidebook2 Chapter 7 

is a 51-page outline on “Planning and Conducting an investigation”. 

Plaintiff, made one phone call failed to comply with any of the other 

requirements necessary to comply with the guidelines necessary for an 

investigation. 

c. Plaintiff failed to plead the damages with the specificity as required by Havens Realty 

Corp. v Coleman 455 U.S. 363, 379 (1982) (MTD p, 14), instead it recited the claims 

used by HOMES in Havens “petitioners steering practices have perceptibly impaired 

HOME’s ability to provide counseling and referral services ...”

i. Response – None

1. Reply – Although there was no response, Defendant has received new 

evidence in relation to this matter. Defendant filed an Exhibit 1 (Doc 

2 HUD Handbook No, 8024.1, Rev-2 issued May 11, 2005

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19) Plaintiff incorporation papers from February 22, 2020 where the 

purpose was declared to be a charity. The new evidence, attached as 

exhibit “1” is Plaintiff Certified application with to the Florida 

Department of Agriculture and Consumer Services on July 1, 2020. 

Plaintiffs to become a charitable business, a document that must be 

filed before a charity can solicit funds in Florida. According to that 

document, page 3 of 4, the company has had no revenue and no 

expenses. Further, the document, page 1, states that it is an 

application. On page 4 the application states that the information is 

provided for the purpose of complying with Chapter 496 of the Florida 

Statutes. If the Plaintiff has no revenue and no expenses, how did 

Defendant, in March when this complaint was filed, cause Plaintiff to 

(Amended complaint Paragraph 32) impair FFH Alliance’s ability to 

engage in projects by forcing the FFH Alliance to devote resources to 

counteract the herein complained of actions of Defendant. How did 

Plaintiff divert funds for the cost of detecting and challenging via nonlegal means the misconduct of Defendant and how did the divert 

resources from counseling outreach and education? How are 

Plaintiff’s goals thwarted when they had no funds to pursue them. 

What is the irreparable injury and threat of immediate threat by a 

complex 60 miles away from Plaintiff that is not doing any business 

in its neighborhood? 

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Heartland Surgical Specialty Hosp., v Midwest Div., Inc. 2007 U.S. 

Dist. LEXIS 220090 U.S. Dist. Ct Kan (Mar 2007) Until the business 

is operating it cannot suffer damages “Moreover, once it was legally 

formed, Heartland did not immediately enter the market. It first sought 

to solicit additional investors by means of a prospectus” ... “none of 

those activities could have affected Heartland until after it began 

soliciting investors in early 2000. 

Florida Statute 496.406 Plaintiff could not have started soliciting prior 

to its application, therefore it could not have suffered any financial 

damages. Further this fact pattern does not support the damages claim. 

Spann v Colonial Village, Inc. 899 F.2d 24 (U.S. Ct of App DC March 

1990 An organization cannot, of course, manufacture the injury 

necessary to maintain a suit from its expenditure of resources on that 

very suit. Were we to Rule otherwise, any litigant could create injury 

in fact by bringing a case, and Article III would present no real 

limitation. 

d. Plaintiff failed to allege any more than threadbare conclusory statements that 

Defendant claimed actions did not serve a substantial, legitimate, nondiscriminatory 

interest of the housing provider. (MTD p, 17) 

1. Response, Plaintiff claims that they have made a claim for disparate 

impact sufficient to get past a 12(b)(6) motion so it never addressed 

this issue with the bald assertion that there is racial disparity at the 

complex and statistically more blacks and Hispanics have felony 

conviction than whites so there must be disparity. 

a. Reply – Although Plaintiff makes the statement, based upon 

the one phone call the allegations are without sufficient factual 

matter to be accepted as true or even plausible. 

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e. That the Plaintiff failed to establish that the Defendants claimed actions were a Policy 

of Practice. (MTO p, P17, 18a). 

i. Plaintiff’s response did not address this issue. 

1. Defendant relies on its pleadings in the 12(b)(6).

f. That the Plaintiff failed to establish that the Defendants claimed actions had a 

disparate impact on individuals of a particular race. (MTO p, P17, 18b)

1. Response “Defendant is wrong”. Response between Paragraph 12 and 

13. Paragraph 15, Plaintiff again discusses the fact that statistically 

Blacks and Hispanics have a higher felony conviction rate so the 

complex must have a disparate impact.

2. Reply - Although Plaintiff makes the bald assertion that there is racial 

disparity at the complex. This statement is does not provide the court 

with sufficient factual matter to support this allegation. Further, based 

upon the failure of Plaintiff to perform an investigation the Plaintiff 

has no knowledge of any disparity at the complex. Plaintiff is requiring 

the court to assume it exists. 

g. Defendant cited Carson v Hernandez: 2018 U.S. Dist. Lexis 185782 (July 26, 2018) 

citing Inclusive Cmtys. Project, Inc.135 S. Ct. 2507. In its 12(b)(6) motion which 

states: 

In Inclusive Communities, the court held: “[A] disparate impact claim that relies on a 

statistical disparity must fail if the Plaintiff cannot point to a defendant’s policy or 

policies causing the disparity. A robust causality requirement ensures that [r]acial 

imbalance does not, without more, establish a prima facie case of disparate impact” and 

thus protects the defendant from being held liable for racial disparities the did not 

create. Id. At 2523 (quoted case omitted) Accordingly. “[A] plaintiff who fails to allege 

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facts at the pleading state or produce statistical evidence demonstrating a causal 

connection cannot make out a prima facie case of disparate impact.” Id at 2523. 

In the case sub Judice. Plaintiff has not identified any specific policy or practice of 

defendants that caused a disparate impact on a protected group. He avers only 

generally that the “practice and policy” to deny housing from those released from 

prison and cites purported disparate impact on African Americans based on 

statistical data. Doc. 3 at 2; 7 at 2-3. Assuming arguendo, that Defendants had a 

policy of rejecting applicants with felony convictions, regardless of the age of the 

convictions, Plaintiff has wholly failed to demonstrate a “robust causal connection 

between the alleged policy or practice and the perceived adverse discriminatory 

effect. Inclusive Cttys., 135 S. Ct. at 2513, Certainly a policy of excluding convicted 

felons for tenancy did not cause the underlying disparity. Plaintiff cites, to-wit, the 

historical disproportion of African Americans convicted of felony offences in the 

United States. Doc. 3 at 3. In any event, such a policy is not “otherwise unjustified 

by a legitimate rational” Inclusive Cmtys, 135 S. Ct. at 2513, as it is obviously 

pertinent to maintaining a crime-free environment.

4. Instead of discussing Carson, Plaintiff relies on Jackson v. Tryon Park Apartments 2019 

U.S. Dist. LEXIS 12473 at 7* (W.D.N.Y. Jan 25, 2019) without trying to distinguish the two. 

The Jackson case was a 12(b)(6) motion and the court, which did cite Inclusive Communities,

did not address the issue of a substantial, legitimate, nondiscriminatory interest of the housing 

provider and based upon a reading of the decision it does not appear that it was raised. This 

would not be unusual because normally the burden of proof is on the Plaintiff to make a claim 

and then it shifts to the Defendant. However, in our case, because the Plaintiff’s pleadings 

do not state a claim and all of the plaintiff’s evidence has been plead, the court may take 

notice that Plaintiff’s pleadings do not state a sufficient factual bases or plausible statements 

that there is no legitimate rational as required by the HUD Guidance, Inclusive Communities 

and Carson. Plaintiff is trying to put an elephant into a mousehole by claiming that the HUD 

Guidance and Jackson v Tryon make felons a protected class. This violate the major issues 

doctrine as will be discussed in the Memorandum of Law.

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MEMORANDUM OF LAW

5. Plaintiff has brought this suit base upon a violation of 42 U.S.C. §3604 (d) with the claim 

that this is a disparate impact case. The factual allegations necessary to succeed in a claim 

for disparate impact are: 24 CFR § 100.500(c)(1) requires that the plaintiff, with respect to 

a claim brought under 42 U.S.C. 3613, has the burden of proving that a challenged practice 

caused or predictably will cause a discriminatory effect. The Plaintiff has simply stated that 

the Defendant has a policy of not allowing convicted felons to rent in the complex.

6. Pursuant to Rule 12(b)(6), ‘a complaint must contain sufficient factual matter, accepted as true, to 

state a claim to relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (internal quotation marks omitted). This plausibility standard is met “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 678. “We assess plausibility by ‘draw[ing] on [our own] 

judicial experience and common sense.’” Haney, 837 F.3d at 924 (alterations in original) (quoting 

Iqbal, 556 U.S. at 679). “Further, we ‘review the plausibility of the plaintiff’s claim as a whole, not 

the plausibility of each individual allegation.’” Id. (quoting Zoltek Corp. v. Structural Polymer Grp., 

592 F.3d 893, 896 n.4 (8th Cir. 2010)). And “[a] pleading that offers ‘labels and conclusions’ or ‘a 

formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 550 U.S. at 678 (quoting 

Bell Atl. Corp. v.Twombly, 550 U.S. 544, 555 (2007)).

7. The office of Fair Housing, HUD filed with the Federal Register its new Rules titled 

Preserving Community and Neighborhood Choices. In the new Rules it repealed the 2015 

AFH and the 1994 AI requirements where they appear in the regulations. In so doing they 

discussed the broad principle has centered on an important concept in Administrative Law 

known as “the major issues doctrine.” Under this doctrine, judges “presume that 

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Congress does not delegate its authority to settle or amend major social and economic policy 

decisions.” The reason is that a “major policy change should be made by the most 

democratically accountable process.” If an “agency wants to exercise expansive regulatory 

authority over some major social or regulatory activity . . . an ambiguous grant of statutory 

authority is not enough.” As the Supreme Court has put it, when it comes to delegating 

authority to federal agencies, Congress “does not one might say, hide elephants in 

mouseholes.” Thus, the Court has held that a regulatory interpretation by an agency is 

“unreasonable” if it results in “an enormous and transformative expansion in . . . regulatory 

authority without clear congressional authorization.” Indeed, “[w]hen an agency claims to 

discover in a long-extant statute an unheralded power to regulate a significant portion of the 

American economy,” the Supreme Court will “typically greet its announcement with a 

measure of skepticism.” Rather, the Court expects that Congress will “speak clearly if it 

wishes to assign an agency decisions of vast economic and political significance.

8. Recently, in BOSTOCK v. CLAYTON COUNTY, GEORGIA CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 17–1618. Argued October 

8, 2019—Decided June 15, 2020* Cite as: 590 U. S. ____ (2020) The Supreme Court determined 

that an employer who intentionally fires an individual homosexual or transgender employee in part 

because of that individual’s sex violates the law even if the employer is willing to subject all male 

and female homosexual or transgender employees to the same rule. Part of the analysis was that you 

cannot fail to discuss sex when trying to make the division between why there were different rules. 

9. With Felons the court can discuss the differences between Convicted Felons, Persons convicted of 

any crime, persons charged with crimes, persons suspected of crimes all without discussing Race, 

Ethnicity, Gender etc. 

Defendants Motion to Dismiss the under Rule 12(b)(6) should be Granted and Defendants

Motion for Attorney’s fees under 42 U.S.C.S. (c)(2) should be Granted.

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Respectfully submitted on August 14, 2020. 

Thomas F. Ryan P.A. 

Is/ Thomas F Ryan

Florida Bar Number 293180

636 U.S. 1 Suite 110

North Palm Beach, Florida 33408

Phone 561 723 5725 

Fax 

Email ryantlaw@aol.com

Attorney for Top Well LLC

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served by Notice of Electronic 

Filing generated by CM/ECF on this August 14, 2020, to all counsel or parties of record on the 

service list. Jibrael S. Hindi Esq. and Thomas J. Patti, The law offices of Jibrael S. Hindi PLLC, 

110 S.E. 6th St, Suite 1744, Ft. Lauderdale, Florida 33301, jibrael@jibraellaw.com; and 

tom@jibraellaw.com. Counsel for the Florida Fair Housing Alliance. 

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