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 STEVEN UNGER’S REPLY TO DEFENDANT’S RESPONSE IN 

OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED 

COMPLAINT

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

counsel, replies to Defendant’s MAJORCA AT VIA VERDE HOMEOWNERS ASSOCIATION 

INC. [“MAJORCA and/or “Defendant”] Response In Opposition to Plaintiff’s Motion For Leave 

To File An Amended Complaint as follows:

Plaintiff Steven Unger’s initial complaint was dismissed because, according to this Court, it 

failed to sufficiently allege his request for reasonable accommodation was denied in light of an 

alternative accommodation offered by MAJORCA and because “since May 2020 all Association 

meetings were being held remotely via ZOOM video conference.” [DE 17]

As made clear by Exhibit E to the proposed amended complaint, Association meetings are 

being held remotely via Zoom only temporarily because of Covid 19. According to the May 26, 

2020 letter from Karen Gagliano written on behalf of MAJORCA, “[W]hen in person meetings 

Case 9:20-cv-81175-AHS Document 21 Entered on FLSD Docket 08/15/2021 Page 1 of 5
restart, your clients can have Mrs. Unger, or any other identified representative of Mr. Unger, 

attend and tape or video record meetings for his personal use if that is what he wants.” [DE18-E]

In a good faith attempt to address the Court’s identified inadequacy with his initial complaint, 

Plaintiff included in the amended complaint an explanation of why the proffered 

“accommodation1” did not address the need created by his disability. Specifically, Plaintiff’s wife 

is unable to attend meetings of Majorca’s board and has no interest in doing so even if her schedule 

permitted. [DE 18 ¶35[This leaves Plaintiff with having to locate a third party willing to attend 

and record meetings for him, presumably for compensation. [DE 18 ¶ 36] Further, even the ability 

to attend meetings by ZOOM does not fully accommodate Plaintiff because he is sometime unable 

to watch by ZOOM during the actual meeting time because of his fatigue and chronic pain. [DE ¶

28] Having recordings of the meetings would allow him to listen to the recordings when his health 

allowed.

According to Defendant, Plaintiff should not be allowed to amend his complaint because “the 

proposed amendment does not include any allegations that the Association refused his request for 

accommodation.” [DE 20] Plaintiff’s requested accommodation is that, given that minutes are no 

longer posted promptly at the end of the meetings as was the past practice, [DE 18 ¶ 12], that he 

be provided recordings of the association’s board meetings because he is physically unable to 

attend the meetings in person due to a physical disability. [DE 18, ¶ 22] Attached to the initial and 

amended complaints and incorporated into each complaint are a copy of an email from 

1 Plaintiff did not need an accommodation for his wife to be able to attend and record the 

meeting. No rule of the association forbids board meetings from being recorded and Plaintiff’s 

wife has as much of a right to attend the meetings as any other resident. During the course of this 

litigation MAJORCA has changed its rule to now restrict attendance at board meetings solely to 

residents. However, prior to that change and at the time the alternative “accommodation” was 

offered, nothing prevented a resident’s representative from attending and recording meetings for 

an absent resident.

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MAJORCA’s then property manager stating that: “At this time, the board of directors does not 

record audio or video of the Board meetings. This is not normal practice for the board meetings,” 

[DE 18-C] and a letter from MAJORCA’s attorney that states “Mr. & Mrs. Unger were advised 

that the Board does not tape or video record any association meetings,” and also making it clear 

that MAJORCA had no intention of starting to do so for the benefit of Plaintiff, his disability 

notwithstanding.[DE 18-E]

The amended complaint not only alleges but inarguably demonstrates that MAJORCA has 

refused to grant the accommodation requested by Plaintiff. While Plaintiff does not dispute that 

MAJORCA has offered an alternative accommodation, specifically that he may convince his wife 

or some other person to attend meetings and record them for him, he disputes the reasonableness

of the alternative accommodation, particularly given how simple it would be to grant the 

accommodation he has requested. The amended complaint contains specific allegations as to why 

the “alternative accommodation” is not reasonable based upon his specific circumstances.

Defendant makes much of the Court’s statement that a disabled person “is not entitled to the 

accommodation of her choice but is entitled only to a reasonable accommodation.” As noted by 

the Court, whether or not a particular accommodation is reasonable depends on specific 

circumstances and is a fact-specific case-by-case determination.

While a disabled person may not be entitled to the accommodation of her choice, the 11th

Circuit Court of Appeals has emphasized that in the context of considering whether a housing 

provider has complied with the Fair Housing Act, the first consideration is whether the 

accommodation requested by the plaintiff is facially reasonable, and if so the defendant must 

demonstrate the requested accommodation would impose an undue financial or administrative 

burden before the reasonableness of any “alternative accommodation” is considered. Schaw v. 

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Habitat for Humanity of Citrus Cty., Inc. , 938 F.3d 1259, 1269 (11th Cir. 2019) (“a court at the 

summary-judgment stage must consider first whether the plaintiff’s own requested 

accommodation "seems reasonable on its face" before turning to consider a defendant’s objections 

and counterproposals”). While Schaw was decided at the summary judgment stage, at the pleading 

stage Plaintiff has plead sufficient facts in his amended complaint to show not only that his desired 

accommodation is reasonable on its face, but also that the proffered “alternative accommodation”

does not meet the needs of his disability. Accordingly, the proposed amendment is not “futile.”

Further, the May 2004 Joint Statement issued by the Department of Housing and Urban 

Development and Department of Justice, a document found by multiple courts to be “highly 

persuasive2” states:

There may be instances where a provider believes that, while 

the accommodation requested by an individual is reasonable, there 

is an alternative accommodation that would be equally effective in 

meeting the individual's disability-related needs. In such a 

circumstance, the provider should discuss with the individual if she 

is willing to accept the alternative accommodation. However, 

providers should be aware that persons with disabilities typically 

have the most accurate knowledge about the functional limitations 

posed by their disability, and an individual is not obligated to accept 

an alternative accommodation suggested by the provider if she 

believes it will not meet her needs and her preferred accommodation 

is reasonable.

3

(emphasis added)

2 Sabal Palm Condominiums of Pine Island Ridge Ass'n, Inc. v. Fischer, 6 F. Supp. 3d 1272, 

1281 fn 10(S.D. Fla. 2014) referencing Overlook Mut. Homes, Inc. v. Spencer, 415 F. App'x 617 

(6th Cir. 2011)

3

https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_statement_ra.pdf (last 

accessed August 15, 2021)

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Contrary to MAJORCA’s contention, Plaintiff has adequately alleged that MAJORCA has 

failed to grant his request for a reasonable accommodation notwithstanding its offer to allow 

Plaintiff’s wife or another person to attend and record meetings for Plaintiff’s benefit.

WHEREFORE, this Honorable Court should GRANT Plaintiff’s motion for leave to file his 

Amended Complaint.

Respectfully submitted this 15th day of August, 2021.

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 August 15, 2021, I electronically filed the foregoing with the Clerk of 

Court for United States District Court, Middle 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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