Opinion
Case No. 04-60017-CIV-Lenard/Simonton
February 17, 2004
FINAL ORDER
Pending before this Court on an Order of Reference (DE 7) are Plaintiff's Motion for a Preliminary and Permanent Injunctive Relief and Request for Immediate Hearing (DE 2), filed January 7, 2004, and motions and papers relating thereto (DE 1, 3, 4, 22, 23). Defendant has filed a Response to Plaintiff's Motion for Preliminary Injunction (DE 16) and papers relating thereto (DE 18 19).
Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the undersigned Magistrate Judge conducting any and all proceedings in this non-jury civil matter. The parties have also requested pursuant to Rule 65(a)(2), Fed.R.Civ.P., that the above hearing on Plaintiff's Motion for a Preliminary and Permanent Injunctive Judgement be consolidated with a trial on the merits.
This action came on for a trial on Plaintiff's Motion for a Preliminary and Permanent Injunction on February 13, 2004 pursuant to the Order Following Status and Scheduling Conference entered January 23, 2004. In accordance with Rule 52(a), Fed.R.Civ.P., this Court sets forth the following Findings of Fact and Conclusions of Law, which constitute the grounds for its Order.
1. Plaintiff, Bessie Jacobs, is an eighty-eight (88) year old, physically handicapped victim of polio who resides alone at 7650 West McNab Road, Concord Village, Unit 201, Tamarac, Florida 33321. Defendant, Concord Village Condominium X Association, Inc., (hereinafter "Association") is a Florida corporation which serves as the condominium association for Concord Village X where the plaintiff resides. To alleviate the excruciating pain the Plaintiff is in while walking, she uses a motorized tricycle. Soon after moving in 22 years ago, the developer of Concord Village built Ms. Jacobs a plywood ramp so she could store her tricycle and recharge its battery in a closet on the ground floor which is four inches above the floor. About two years ago the ramp disappeared. A new ramp was constructed and it too soon disappeared. The Association then locked the door to the storage closet, refused to allow Ms. Jacobs to have another ramp installed, and denied her access to her tricycle in the storage closet.
2. This action seeks a declaratory judgment, preliminary and permanent injunctive relief for discrimination in the provision of housing on the basis of physical handicap. It is alleged that the Defendant has intentionally discriminated against the Plaintiff on the basis of her physical handicap by refusing to provide a reasonable accommodation thereby limiting plaintiff's ability to use and enjoy her condominium in violation of the Fair Housing Act of 1968, as amended, 42 U.S.C. § 3601, et seq.
3. As set forth below, Plaintiff has met the four elements for a prima facie "reasonable accommodation" case under 42 U.S.C. § 3604(f)(3)(B) as set forth in United States v. California Mobile Home Park, 107 F.3d 1374, 1380 (9th Cir. 1997):
(1) complainant suffers from a handicap as defined in 42 U.S.C. § 3604(f)(3)(B);
(2) respondent knew of complainant's handicap or should reasonably be expected to know of it;
(3) accommodation of the handicap may be necessary to afford complainant an equal opportunity to use and enjoy the dwelling; and
(4) respondent refused to make such accommodation.
4. Plaintiff is handicapped as defined in 42 U.S.C. § 3602(h). Plaintiff had poliomyelitis (polio) in both legs as a child, and wore braces on her legs. Plaintiff's left leg is shorter and smaller than the right. She now suffers from post-polio syndrome (PPS), which has affected her muscles and nerves, causing her weakness, fatigue, pain, and has left her handicapped. Ms. Jacobs suffers from extreme back pain which limits her ability to stand and walk without being in pain. To alleviate her pain, her board certified orthopedist, Dr. Philip Averbuch, has prescribed and recommended that Ms. Jacobs continue to use her motorized tricycle when she must leave the building, go to the store and otherwise travel outside of her residence. The motorized tricycle is her only mode of personal transportation since Ms. Jacobs does not drive. Ms. Jacobs nevertheless has provided the Defendant with a copy of her doctor's prescription for the tricycle, the basis for her physical handicap, and the reason an accommodation is necessary. At no time has the Defendant requested any additional medical evidence of the Plaintiff's handicap. After Defendant's acquiescence to the Plaintiff's handicap for the past 22 years and failing to make any effort to contact Ms. Jacobs' doctor, Defendant is now estopped from contesting whether Ms. Jacobs is physically handicapped and whether Ms. Jacobs' physical impairments and disabilities limit her major life activity of walking. See, Anderson v. North Dakota State Hosp., 232 F.3d 634, 636 (8th Cir. 2000) (walking is a major life activity).
5. Defendant has known of the Plaintiff's handicap for the past 22 years and, if Defendant had any doubt otherwise, it made no effort to contact the Plaintiff's doctor, Dr. Averbuch, to find out the nature of and extent of her disability. As the Seventh Circuit stated: "If a landlord is skeptical of a tenant's alleged disability or the landlord's ability to provide an accommodation, it is incumbent upon the landlord to request documentation or to open a dialogue." Jankowski Lee Associates v. HUD, 91 F.3d 891, 895 (7th Cir. 1996).
6. Defendant has known for 22 years that the Plaintiff needed a motorized tricycle to alleviate the pain she is in while walking. Any argument made to the contrary is not made in good faith and is lacking in credibility. Defendant's twenty years of silence on this issue speaks volumes. Defendant has also known for the past 22 years that Plaintiff's use of her ramp so she can store her motorized tricycle in the storage closet affords her the opportunity to use and enjoy her unit. Plaintiff has therefore made a prima facie showing of the need and necessity for a reasonable accommodation and that the Defendant has refused to accommodate the Plaintiff.
7. Accommodation of Plaintiff's physical handicap by allowing her to re-install a ramp to access her motorized tricycle in the storage closet is necessary to afford Ms. Jacobs an equal opportunity to use and enjoy her condominium. The accommodation of a small plywood ramp bolted to the floor so it can not be easily stolen, particularly after having one for 20 years without incident, is eminently reasonable.
8. Defendant has refused to provide the Plaintiff with a reasonable accommodation of installing a ramp to the storage closet which houses her motorized tricycle that has been prescribed by Plaintiff's physician. The fact that the Defendant allowed the Plaintiff to have a ramp for 20 years and now refuses to allow it to be replaced supports Plaintiff's contention that the Defendant acted intentionally to preclude the ultimate enjoyment of her condominium in violation of the Fair Housing Act, 42 U.S.C. § 3604.
9. Plaintiff has succeeded on her claim of discrimination in violation of the Fair Housing Act due to Defendant's refusal to provide a reasonable accommodation. In addition to the clear and unambiguous terms of the Fair Housing Act provisions of 42 U.S.C. § 3604(f)(3)(B), courts have mandated that landlords and condominium associations must provide handicapped persons with similar reasonable accommodations as requested here for such things as handicapped parking spaces and ramps for wheelchairs. The Second Circuit in Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 333-36 (2d Cir. 1995) found a cooperative's refusal to modify its "first come/first served" parking policy to accommodate a handicapped tenant's need for a parking space was likely to violate § 3604(f)(3)(B). Federal regulations and district courts mandate § 3604(f)(3)(B) relief similar to that requested sub judice for handicapped persons needing a reasonable accommodation due to one's decreased mobility or inability to walk. See 24 C.F.R. § 100.204(b), Example 2; Hubbard v. Samson Management Corp., 994 F. Supp. 187 (S.D.N.Y. 1998) (handicapped tenant wins § 3604(f)(3)(B) claim based on defendants' denial of her request for a free parking space near her unit); Gittleman v. Woodhaven Condominium Ass'n., Inc., 972 F. Supp. 894 (D. N.J. 1997) (upholding § 3604(f)(3)(B) claim by a handicapped unit owner for a special parking space against defendant association despite the fact that the association's deed restrictions provided that parking spaces were common areas to be held for the exclusive use of all owners); see also Trovato v. City of Manchester, 992 F. Supp. 493, 496-98 (D.N.H. 1997)(city's refusal to allow mobility-impaired Plaintiffs to build a paved parking space in front of their home to facilitate access to their car violates § 3604(f)(3)(B)). Courts have also found that the refusal to allow the building of ramps for wheelchairs violate the Fair Housing Act. See, Hunter v. Trenton Housing Authority, 698 A.2d 25, 26 (N.J.Super. 1997) (housing authority's refusal to allow mobility-impaired tenant to install ramp violates reasonable accommodations requirements of federal and state fair housing laws). Plaintiff has proven that the Defendant's actions violated the FHAA and a permanent injunction should issue.
It is therefore ORDERED and ADJUDGED that:
1. Defendant is permanently enjoined from prohibiting the Plaintiff to install, by securely bolting to the concrete floor, a plywood (or other suitable material) ramp so the Plaintiff can freely store, access, and charge her motorized tricycle in the storage closet on the first floor of the Defendant's building. The ramp is to be similar in size to the original ramp. This ramp will restore the Plaintiff to the position she was in prior to the removal of her ramp, and the parties agree that therefore no building permit shall be required. Defendant shall further provide the Plaintiff with a key to the storage closet in the event the closet is locked so the Plaintiff can have ready access to her tricycle. In the event the Plaintiff is no longer a tenant in the Defendant's building or the Plaintiff's physician determines the use of the motorized tricycle is no longer medically necessary, the Plaintiff shall have the ramp removed and the flooring area restored to its original condition at the Plaintiff's expense.
2. Defendant, its successors, agents, members, tenants, and employees, as well as those acting in concert with them are enjoined from discriminating on the basis of Plaintiff's physical handicap in her use and quiet enjoyment of her condominium unit.
3. Defendant is directed to serve this order on every condominium unit owner, tenant and member of the Defendant.
4. Plaintiff is the prevailing party for purposes of awarding attorneys' fees and costs.
5. The parties shall attempt to resolve the Plaintiff's attorneys' fees and costs within sixty (60) days of the entry of this Order.
6. In the event that the parties are unable to resolve Plaintiff's claim for attorneys' fees and costs within sixty (60) days from the entry of this Order, the Plaintiff shall file her motion for attorneys' fees and costs within ninety (90) days from the entry of this Order.
7. All other pending motions are denied as moot.
8. The Court shall retain jurisdiction over this Order to enforce the terms of the permanent injunction and to decide the issue of Plaintiff's attorneys' fees, expenses, and costs.
DONE and ORDERED.