Rood v. Town of Ft. Myers Beach

622 F.Supp.3d 1217

Edward ROOD, Plaintiff, v. TOWN OF FT. MYERS BEACH, FLORIDA, Defendant.

Case No.: 2:20-cv-981-SPC-KCD

United States District Court, M.D. Florida, Fort Myers Division

Signed August 18, 2022

Matthew P. Farmer, Farmer & Fitzgerald, Tampa, FL, for Plaintiff.

Christopher J. Stearns, Selena A. Gibson, Jonathan Howard Railey, Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, PA, Fort Lauderdale, FL, for Defendant.

OPINION AND ORDER¹

SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Town of Fort Myers Beach's Motion for Summary Judgment (Doc. 53). Plaintiff Edward Rood responded in opposition (Doc. 60), to which the Town replied (Doc. 63). The Court grants the Motion.

BACKGROUND

This is an unusual Americans with Disabilities Act ("ADA") case. It is odd because despite a long, complicated history between the parties on these facts, it had nothing to do with Title II of the ADA. That is until Rood lost at a zoning hearing.

Fort Myers Beach is a moving island. Bit by bit, reliable tides and relentless waves are shaping and reshaping the beach. Over time, accretion deposited more sand on the island—cutting off some tidal waters from the Gulf and creating small coastal lagoons. These lagoons are within an environmentally critical ("EC") zone.

For Rood, this created a problem. There are two lagoons behind his house ("Property") separated by a vegetation-covered sand dune. And the lagoons block his access to the beach. But Rood had a solution. He wanted to build a walkway from the Property—over the lagoons—to the dunes ("Dune Walkover"). Here is an approximate map of the project:

Image materials not available for display.

(Doc. 65 at 2).²

This wasn't a half-baked idea. Rood seemingly jumped through every conceivable hoop: designing the Dune Walkover with Florida Department of Environmental Protection ("DEP") input, obtaining state and federal permits, getting DEP final approval through complicated, years-long administrative proceedings ("Order"), and securing a recommendation from the Town's land planning board. Still, since the project was in an EC zone, Rood needed a special exemption from the Town council. So he applied for one ("Exemption").

The Town held a hearing and denied the Exemption. After, Rood applied for rehearing, which the Town denied following another hearing. Having lost the zoning issue, Rood turned his focus to the ADA. He never used a wheelchair. But Rood has trouble walking from various health issues. So he sued for failure to accommodate.

LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And a material fact is in genuine dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The moving party bears the initial burden to show the lack of genuinely disputed material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If carried, the burden shifts onto the nonmoving party to point out a genuine dispute. Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006). At this stage, courts view all facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Rojas v. Florida, 285 F.3d 1339, 1341-42 (11th Cir. 2002).

DISCUSSION

In general, disability discrimination claims take three forms: "(1) disparate treatment, (2) disparate impact, and (3) failure to accommodate." Root v. Salazar, 406 F. Supp. 3d 1322, 1325 (M.D. Fla. 2019); see also Raytheon Co. v. Hernandez, 540 U.S. 44, 53, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) ("Both disparate-treatment and disparate-impact claims are cognizable under the ADA."). Disabled people may challenge municipal zoning decisions on one of these theories. Palm Partners, LLC v. City of Oakland Park, 102 F. Supp. 3d 1334, 1342 (S.D. Fla. 2015); Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 151 (2d Cir. 1999). Only failure to accommodate is at issue.

The parties rely on the wrong standards, which generally apply to ADA claims for employment discrimination or exclusion from public services. McKane v. UBS Fin. Servs., Inc., 363 F. App'x 679, 681 (11th Cir. 2010); Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001). This case differs because it relates to an adverse zoning decision. For instance, it makes little sense to wrangle over whether Rood is a "qualified individual" as that element mismatches his theory. See 42 U.S.C. § 12111(8) (defining as person who "can perform the essential functions of the employment"), id. § 12131(2) (defining as person who "meets the essential eligibility requirements for the receipt of services"). So many courts tweak the failure-to-accommodate test for residential zoning cases. E.g., Tracy P. v. Sarasota Cnty., No. 8:05-CV-927-T-27EAJ, 2007 WL 9723801, at *4-5, 8 (M.D. Fla. Sept. 5, 2007); see also Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale, 479 F. Supp. 3d 1298, 1321 (S.D. Fla. 2020).³

To win on his failure-to-accommodate claim, Rood must show:

(1) that he is disabled, (2) that he requested a reasonable accommodation, (3) that the requested accommodation was necessary to afford him an equal opportunity to use and enjoy a dwelling, and (4) that the defendant refused to make the requested accommodation.

Schaw v. Habitat for Human. of Citrus Cnty., Inc., 938 F.3d 1259, 1264 (11th Cir. 2019) (cleaned up); see also id. at 1265 n.2 (explaining ADA principles apply equally to claim under Fair Housing Amendments Act ("FHAA")); Schwarz v. City of Treasure Island, 544 F.3d 1201, 1220 (11th Cir. 2008) (same); Quality of Life, Corp. v. City of Margate, 805 F. App'x 762, 767 & n.4 (11th Cir. 2020) (same). That is a test under the FHAA, which the Complaint doesn't raise. To be sure, there are notable differences between the ADA and FHAA. Schwarz, 544 F.3d at 1212 n.6; Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1192-94 (9th Cir. 2021). Still, ADA and FHAA claims are usually analyzed together in zoning disability cases, so the general standards must be the same. See, e.g., Schaw, 938 F.3d at 1264; Summers, 940 F.3d at 139 ("For present purposes, the elements of reasonable accommodation claims under the FHAA and the ADA do not differ in any meaningful respect."); Good Shepherd, 323 F.3d at 561 ("As a preliminary matter the requirements for showing failure to reasonably accommodate are the same under the ADA and the FHAA so we can treat these issues as one."). Because that is the most appropriate standard for Rood's claim, it applies.

The parties dispute four areas. While the Court considers them in a different order, it takes the issues in three broad parts.

A. Ripeness and Disability

To start, the Court addresses the Town's nonstarter arguments—(1) the case is unripe and (2) Rood isn't disabled.

First, this case is ripe. Because ripeness is jurisdictional, the Court tackles it before anything else. Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010). This doctrine cautions courts against "rendering impermissible advisory opinions and wasting their resources through review of potential or abstract disputes." Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370, 1379-80 (11th Cir. 2019) (citation omitted).

According to the Town, Rood's claim is unripe because he neither used a wheelchair nor requested a needed accommodation. As the argument goes, the case is premature since Rood's injury has not progressed far enough. Not so. Rood contends he is disabled now regardless of his wheelchair use (or lack thereof) and demanded an accommodation. What's more, the injury he seeks to remedy happened: the Town denied the Exemption. Cf. Karantsalis v. City of Miami Springs Fla., 17 F.4th 1316, 1323-24 (11th Cir. 2021) ("Under the ADA, [plaintiff] was not injured (and therefore did not have standing) until after he was denied the benefits of [defendant's] public services."). Nor is this not an instance in which Rood sued before the Town finished reviewing his accommodation request. See Caron Found. of Fla., Inc. v. City of Delray Beach, 879 F. Supp. 2d 1353, 1364-66 (S.D. Fla. 2012). Rather, if Rood requested an accommodation—which is a merits question—the Town denied it.

This case is "fit for judicial decision" (i.e., ripe) because there is no need for "further factual development" and all interests favor review. Club Madonna, 924 F.3d at 1380.

Second, the Court assumes (without deciding) Rood is disabled. Disability is an element of the claim. Schaw, 938 F.3d at 1264. According to the Town, Rood is not disabled because he does not use a wheelchair. Yet as Rood counters, he can be disabled without needing that device. See 29 C.F.R. § 1630.2(g)-(j). So wheelchairs aren't a sine qua non of ADA disability, like the Town implies. E.g., EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333, 1343-44 (11th Cir. 2016) (holding plaintiff disabled because she used a cane for pain and balance related to gait dysfunction and spinal stenosis). Rood testified in support of his disability. That evidence is unrebutted. And there is no need to parse the disability question since the claim fails on much clearer grounds. See Mazzeo v. Color Resols. Int'l, LLC, 746 F.3d 1264, 1267-70 (11th Cir. 2014) (noting expanded ADA disability definition and advising against "extensive analysis" of it (citation omitted)).

The Town's remaining arguments in these sections (i.e., the need for the accommodation, failure to request it, and the Town's knowledge of Rood's disability) go to the other merits issues detailed below. So the Court addresses them where appropriate and assumes Rood is disabled. With that decided, the Court moves to the next prong.

B. Request

The...