UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 9:20-cv-81175-AHS

STEVEN UNGER,

Plaintiff,

vs.

MAJORCA AT VIA VERDE HOMEOWNERS

ASSOCIATION INC.,

Defendant.

_________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION 

TO DISMISS

Plaintiff, STEVEN UNGER, [“Unger” and/or “Plaintiff”] by and through his 

undersigned counsel, opposes and responds to Defendant MAJORCA AT VIA 

VERDE HOMEOWNERS ASSOCIATION INC.’s [“MAJORCA and/or 

“Defendant”] Motion to Dismiss [DE 8] as follows:

INTRODUCTION

The arguments comprising MAJORCA’s Motion to Dismiss demonstrate that 

MAJORCA fundamentally misunderstands the Complaint that was filed, minimum 

pleading requirements, and its own obligations as a housing provider under the FHA.

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PERTINENT FACTS

The Complaint alleges that the Plaintiff has “severe ankylosing spondylitis,” a 

degenerative physical disability. DE 1 at ¶10. The Complaint also alleges that this 

disability substantially limits his major life activities, particularly Plaintiff’s

mobility. Id. Because UNGER is physically unable to attend meetings of his 

homeowner association’s board, and because the Defendant had ceased posting its 

prior practice of meeting minutes online immediately after the meetings, in July of 

2019 UNGER requested via email that the secretary of the board email minutes to 

him. DE 1 at ¶11-15. After UNGER did not enjoy the courtesy of a response, 

UNGER’s wife emailed the board president requesting the minutes be posted online. 

UNGER’s wife was told the minutes would be posted but they never were. Id. at ¶ 

16-17. Subsequent inquiries regarding a community website and posting of minutes 

were ignored. Id. at ¶ 19-20.

On March 9, 2020, after minutes had not be posted for almost a year, UNGER’s 

wife emailed MAJORCA’s property manager David Schwartz informing him that 

her husband “has a physical disability that limits his mobility, and he is therefore 

unable to attend monthly HOA board meetings and has limited access to the 

community mailboxes.” As an accommodation of UNGER’s disability she asked 

that either a recording of the board meetings or the minutes be emailed immediately 

after the meetings were conducted. Id. at ¶ 21.

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This simple request was denied. MAJORCA stated that instead “you may 

designate a set representative by power of attorney to attend the meetings for you 

and then that person may record or take notes as necessary of the Board meeting.”

Id. at ¶ 22.

Almost year after UNGER began trying to secure access to the minutes of 

MAJORCA’s board meetings he enlisted the assistance of counsel, who was also 

unsuccessful in persuading MAJORCA to take action to accommodate UNGER’s 

disability. Id. at ¶ 25-26. A disability discrimination suit under the Fair Housing Act 

followed based upon MAJORCA’s inexplicable refusal to grant a simple request to 

accommodate a disabled resident’s request to be promptly apprised of the actions of 

the board of directors so that he has the same access to information as any ablebodied resident, notwithstanding his inability to physically attending board 

meetings. 

MAJORCA has moved to dismiss UNGER’s Complaint, with prejudice. DE 

8. MAJORCA claims that UNGER has failed to state a cause of action for disability 

discrimination, and asserts that because MAJORCA has asserted that UNGER may 

designate someone to attend meetings and take notes for him, and because the board 

meetings are now via ZOOM during the threat of COVID 19, UNGER’s claim for 

failure to accommodate “moot.” Id.

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MAJORCA’s arguments are addressed in the order asserted in its Motion to 

Dismiss.

LEGAL ARGUMENT

A. PLAINTIFF HAS PLED A PRIMA FACIE CASE FOR FAILURE TO 

GRANT A REASONABLE ACCOMMODATION

To state a claim for failure to accommodate under 42 U.S.C. § 3604(f)(3)(B), a 

plaintiff must allege facts which show that: “(1) he is disabled or handicapped within 

the meaning of the FHA, (2) he requested a reasonable accommodation, (3) such 

accommodation was necessary to afford him an opportunity to use and enjoy his 

dwelling, and (4) the defendant refused to make the requested accommodation.” 

Carlson v. Sunshine Villas Hoa Inc., 2:18-cv-1-FtM-99MRM, (M.D. Fla. May. 22, 

2018) citing Hawn v. Shoreline Towers Phase I Condo. Ass'n, Inc., 347 Fed. Appx. 

464, 467 (11th Cir. 2009). The Court must accept the plaintiff’s factual allegations 

as true in determining whether a plaintiff has stated a claim for which relief could 

be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 

59 (1984); Carpenter v Syndicated Office Systems, LLC, 319 F.Supp. 1272, 1273-

74 (S. D. Fla. 2018). It must also construe those factual allegations in the light most 

favorable to the plaintiff. Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th 

Cir. 2016) (internal citation omitted).

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In the instant case the complaint alleges “STEVEN UNGER suffers from and 

has a history of suffering from severe ankylosing spondylitis. STEVEN UNGER’S 

ankylosing spondylitis substantially limits his major life activities, particularly 

walking.” DE 1 at ¶ 10. MAJORCA erroneously asserts the allegations specifically 

identifying both the physical impairment suffered by UNGER and a life activity that 

is substantially limited “are precisely the type of deficient and generic allegations 

that fall below the applicable pleading requirement.” DE 8 at 5. According to 

MAJORCA:

the Complaint is entirely devoid of allegations as to how 

or why Plaintiff’s disability interferes with his ability to 

attend Board meetings. For example, there are no 

allegations that the place where the Association Board 

meetings are held are not handicap or wheelchair 

accessible. Accordingly, Plaintiff’s Complaint fails to 

allege sufficient facts to survive a motion to dismiss.

Id.

It is unclear which of the four elements of a prima facia case Defendant contends 

were adequately alleged. The Complaint clearly alleges that UNGER has an 

impairment that substantially limits a major life activity; specifically, that UNGER 

has ankylosing spondylitis which limits his ability to walk. DE 1 ¶ 10. The 

Complaint does not allege that UNGER uses a wheelchair, namely because UNGER 

does not use a wheelchair, hence the purported wheelchair accessibility of “the place 

where the meetings are held” is irrelevant. 

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The Complaint states that UNGER, UNGER’s wife, and then UNGER’s 

attorney requested that recordings or minutes of board meetings be promptly 

provided after the meetings as an accommodation of UNGER’s disability. DE 1 at

2-4. Accordingly, the Complaint clearly alleges that an accommodation was 

requested, and in fact was requested upon multiple occasions.

The Complaint states that UNGER is physically unable to attend the meetings 

in person, is not afforded real-time access, and that minutes are not posted online,

and had not been posted online for more than a year before the Complaint was filed. 

Id. at ¶12, 29. Accordingly, the Complaint states why the requested accommodation 

of recording the board meetings and/or promptly posting minutes is a necessary

accommodation; so that UNGER has the same access to information regarding the 

actions taken by the board of directors as any non-disabled resident.

Finally, the Complaint clearly states that the requested accommodation has not 

been granted by MAJORCA. Id. at ¶ 30. Unequivocally, the Complaint states a 

prima facia case for failure to accommodate.

B. PLAINTIFF DOES NOT NEED TO “ESTABLISH” THAT AN

ACCOMMODATION WAS NECESSARY TO AFFORD PLAINTIFF AN 

EQUAL OPPORTUNIY TO USE AND ENJOY HIS DWELLING

The title of the next section of MAJORCA’s motion to dismiss asserts that 

Plaintiff cannot “establish” that an accommodation was necessary to afford Plaintiff 

and equal opportunity to use his dwelling. At the stage of a motion to dismiss 

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Plaintiff need not “establish” anything, the complaint needs merely to allege facts 

that if true show the accommodation would affirmatively enhance UNGER’s quality 

of life by ameliorating (or reducing) the effects of his disability. Bhogaita v. 

Altamonte Heights Condo. Ass'n, Inc., 765 F.3d 1277, 1288 (11th Cir. 2014) (a 

“necessary” accommodation is one that alleviates the effects of a disability.)

Because of his disability, UNGER is unable to physically attend board meetings, 

and accordingly cannot observe for himself what occurs at MAHORCA’s board 

meetings. Recording the board meetings for him or providing him minutes would 

ameliorate the effect of his disability.

According to MAJORCA “the Complaint fails to allege sufficient facts as to 

how Plaintiff’s requested accommodation is ‘necessary to afford [Plaintiff] equal 

opportunity to use and enjoy’ the relevant dwelling.” According to MAJORCA, this 

failure is underpinned by the fact that “Plaintiff fails to allege how any other (nondisabled) owner is in a different position or treated differently.” Defendant’s 

apparent inability to understand the clear allegations in the complaint and 

fundamental lack of understanding of the FHA are apparent: 

Here, there are no allegations that other (non-disabled) 

owners receive meeting minutes before they are approved, 

no allegations that Plaintiff would have any ability to vote 

on or change the meeting minutes, no allegations that he 

was not afforded any equal opportunities that other 

owners have, nor how or why being unable to attend board 

meetings would have violated his ability to use and enjoy 

his dwelling. Instead, Plaintiff requested that Defendant 

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provide him access to unapproved and draft meeting 

minutes as an accommodation because he is allegedly 

unable to attend the next Board meeting when those 

meeting minutes would be introduced. Immediate access 

to unapproved meeting minutes is not alleged to be 

afforded to any other owner, nor is it possible based upon 

the Board’s reasonable practices relating to how they 

approve and finalize their meeting minutes. Rather, the 

Plaintiff confirms he would have access to the minutes at 

the same time and in the same manner as every other 

owner – as such minutes would be posted online once 

approved by the Board.

Plaintiff has not asked for “immediate access to unapproved and draft minutes.” 

Because minutes are no longer being posted at all and because Plaintiff is physically 

unable to attend the meetings himself because of his disability, Plaintiff asked that 

the meetings be recorded and the recordings sent to him, or that minutes be sent 

promptly after the conclusion of the meetings, as was done historically. Whether the 

minutes are draft or approved has no bearing on whether the minutes provide 

Plaintiff at least some information regarding what was discussed at his community’s 

board meetings and what actions were taken by the board. It is apparently lost upon 

Defendant that residents whose mobility is not adversely impacted by a progressive, 

debilitating disease may walk to their cars, drive to facility at which the meetings 

take place and walk into the meeting and observe the discussions as they are taking 

place, a freedom not enjoyed by the Plaintiff. Residents that are physically able to 

attend board meetings in person need not wait indefinitely to learn what happened 

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at board meetings, if ever, as they can observe comments and deliberations and votes 

in real time.

As should be obvious, residents whose mobility is not limited by disability have 

access to the board meetings as the meetings are occurring. UNGER does not.

UNGER does not have the same ability as other non-disabled residents to enjoy his 

dwelling because UNGER does not have the same ability to stay abreast of what 

happening within his community. The accommodation UNGER requested, in lieu 

of the prior practice of posting minutes, having the board meetings recorded and 

promptly being provided a copy of the recording, places him on equal ground with 

able bodied residents that enjoy the ability to be apprised of community happenings 

and issues by physically attending the meetings.

Yet according to MAJORCA:

Plaintiff’s requested accommodation to be provided 

meeting minutes immediately after a Board meeting would 

undoubtedly fundamentally alter the nature of the 

Association’s operations and provide Plaintiff a better 

opportunity than other members of the community which 

is not what the Fair Housing Act requires of a housing 

provider.

Whether a requested accommodation would “fundamentally alter the nature of 

the Association’s operations” is an affirmative defense which Defendant must prove 

with facts rather than bare assertions. See Schaw v. Habitat for Humanity of Citrus 

Cnty., Inc., 938 F.3d 1259, 1266 n.3 (11th Cir. 2019) (“undue hardship is an 

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affirmative defense to be pled and proven by a [FHAA] defendant.") citing Willis v. 

Conopco, Inc ., 108 F.3d 282, 286 (11th Cir. 1997).”) A case cannot be dismissed 

upon the Defendant’s bare assertion that a requested accommodation would 

“undoubtedly fundamentally alter the nature of the Association’s operations.” 

Further, an accommodation that allows UNGER, notwithstanding his inability 

to physically appear at board meetings, to be kept abreast of issues being discussed 

in his community, matters being acted upon by the board of directors, and expenses 

being paid by in part by the dues UNGER pays does not in any way provide him a 

“better opportunity” than other residents of MAJORCA that are able to attend 

meetings in person, such an accommodation provides him an equal opportunity.

C. THE ALLEGATION THAT DEFENDANT FAILED TO GRANT A 

REASONABLE ACCOMMODATION IS NOT CONTRADICTED BY THE 

ALLEGATIONS OF THE COMPLAINT OR THE EXHIBITS THERETO

MAJORCA claims that the Complaint should be dismissed based upon a letter 

from MAJORCA’s counsel attached to the Complaint asserting that all residents 

were invited to attend meetings on May 6th and May 20th 2020 by ZOOM, and 

because the Defendant has told UNGER that if he is physically unable to attend the 

board meetings UNGER may designate someone to attend and take notes for him. 

First, the Complaint notes that “[c]ontrary to the representations in Attorney 

Gagliano’s correspondence, STEVEN UNGER has not been able to attend the HOA 

meetings via Zoom because he and Mrs. Unger have been kept in the ‘waiting room’

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and not admitted to the meetings.” DE 1 ¶ 28. ZOOM access has thus far been only 

illusory. Second, the fact that the Defendant deigned to allow UNGER the ability 

to designate “any third party” to attend the board meeting and take notes for him 

does not insulate MAJORCA from liability for failing to grant the accommodation 

that UNGER requested. UNGER is only required to consider alternatives to the 

accommodation he requested if his requested accommodation is not “reasonable on 

its face.” See Schaw v. Habitat for Humanity of Citrus County Inc., 938 F.3d 1259, 

1269 (11th Cir. 2019)(“shifting to Schaw the burden of proving a good-faith effort 

to make use of Habitat’s proffered alternative accommodation, was premature. The 

court should have looked first to the reasonableness of Schaw’s own proposed 

accommodation before considering any outside evidence.”)

Here MAJORCA’s counsel has apparently decided that the “alternative 

accommodation” MAJORCA offered to UNGER magically obviates MAJORCA’s 

liability for failing to grant the accommodation UNGER requested, and that the 

proposed alternative accommodation provides UNGER with an equal opportunity to 

use and enjoy his home. That determination of whether an accommodation is 

reasonable is a highly fact specific analysis and one which is not MAJORCA’s 

counsel to make unilaterally. Cohen v. Monroe Cty., 749 F. App'x 855, 857 (11th 

Cir. 2018) (quoting Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002) ("Whether 

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a requested accommodation is required by law is highly fact -specific, requiring 

case-by-case determination.")

Defendant cites to a Weiss v. 2100 Condo. Ass’n, 941 F. Supp. 2d 1337, 1344 

(S.D. Fla. 2013), a case granting summary judgment rather than deciding a motion 

to dismiss, for the soundbite that “notably, the law entitles a disabled person only to 

an accommodation that is reasonable and necessary, not to an accommodation of 

his/her choosing.” More recent and binding authority from the 11th circuit court of 

appeals indicates that a disabled person is in fact entitled to the accommodation of 

his or her choosing unless that preferred accommodation is unreasonable. The 

reasonableness of the proffered alternative and whether that alternative in fact 

provides UNGER with an equal opportunity to use and enjoy his home is relevant 

only if and when MAJORCA is successful in demonstrating that the accommodation 

UNGER request for recordings or minutes of the board meetings would impose an 

“undue burden” or result in a “fundamental alteration.” Schaw v. Habitat for 

Humanity of Citrus County Inc., 938 F.3d 1259, 1269 (11th Cir. 2019)

D. PLAINTIFF’S CASE IS NOT MOOT

Lastly, Defendant asserts that because all board meetings are now being held via 

ZOOM, coupled with MAJORCA’s magnanimously “allowing a designated third 

person (or Plaintiff’s wife) to record the meetings,” Plaintiff’s claim is moot. As 

previously discussed, the fact that MAJORCA deigned to proffer an alternative 

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accommodation does not excuse it from having failed to grant the reasonable 

accommodation that UNGER requested. Second, even if contrary to the assertion 

in the complaint, UNGER now in fact has the ability to attend board meetings via 

ZOOM, that does not excuse the failure to accommodate UNGER when he made a 

request before the pandemic, or excuse MAJORCA from accommodating UNGER 

in the future when face to face board meetings resume.

A case is moot when it no longer presents a live controversy with respect to 

which the court can give meaningful relief. In this case, in addition to a reasonable 

accommodation, Plaintiff seeks compensatory and punitive damages for 

MAJORCA’s failure to grant him a reasonable accommodation when he made the 

request. The controversy as to that requested accommodation as well as UNGER’s

claim for money damages remain live. Defendant’s claim of “mootness” is 

erroneous. Hunt v AIMCO Properties, L.P., 814 F.3d 1213, 1220 (11th Cir. 2016) 

(citing Adler v. Duval Cty. Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997).

CONCLUSION

Rule 8(a) of the Federal Rules of Civil Procedure requires only "a short and plain 

statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 

8(a)(2). Plaintiff has unequivocally alleged facts that if true demonstrate that 

MAJORCA has failed to grant him a reasonable accommodation and that he is 

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entitled to the relief he has requested. Defendant’s Motion to Dismiss must be 

denied.

Respectfully submitted this 28th day of September, 2020.

Marcy I. LaHart, PA

s/ Marcy I. LaHart

Marcy I. LaHart, Esquire 

Florida Bar No. 0967009

249 SE Tuscawilla Rd

Micanopy, FL 32667

marcy@floridaanimallawyer.com

(352) 545-7001

Counsel for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on September 28, 2020, I electronically filed the foregoing 

with the Clerk of Court for United States District Court, Southern District of 

Florida, by using the CM/ECF system, which will send a copy of the document 

and notice of electronic filing to all counsel of record.

BY: s/Marcy LaHart

Counsel for Plaintiff

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