The opinion
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
_ Miami Division
Case Number: 23-24513-CIV-MORENO
HANNAH GORMAN, individually and on
behalf of her minor child L.T.G.,
Plaintiff,
vs.
BREEZE CONDOMINIUM ASSOCIATION,
INC., NAUTICA MANAGEMENT, LCC, and
RICHARD MULLER,
. Defendants.
/ □
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST
AMENDED COMPLAINT □
This case is about a dispute between a former tenant and her condominium, the
condominium’s property management firm, and the condominium’s property manager. Plaintiff
alleges that Defendants denied application for her and Mr. Tomlinson’s emotional support dog,
denied renewal of Plaintiff’s lease, and then interfered and denied Plaintiffs contract fora different
lease within the same condominium. It is alleged that these actions amounted to unlawful
discrimination under the Fair Housing Act. Plaintiff filed suit against Defendants under the Fair
Housing Act for discrimination, retaliation and interference, and interference with a contract.
THIS CAUSE came before the Court upon Defendants’ Motion to Dismiss Plaintiffs First
Amended Complaint (D.E. 20), filed on February 14, 2024. THE COURT has considered the
motion, the response in opposition, the reply, and pertinent portions of the record. For the reasons
set forth below, Defendants’ Motion to Dismiss is DENIED.
FACTS
The following facts from Amended Complaint are assumed to be true for purposes of
evaluating the Motion to Dismiss. In early April, Plaintiff Hannah Gorman (mother and guardian
of L.T.G., a minor), and Nicholas Tomlinson (father of L.T.G.) submitted a rental application for
Unit 304 within Breeze Condo, including the information for Mr. Tomlinson’s emotional support
animal. [ECF No. 19] 6, 12, 17. It is alleged that Mr. Tomlinson is an individual with a
disability under 42 U.S.C. §3602(h) and Plaintiff Gorman was “associated with a person with a
disability” and accordingly, covered under 42 U.S.C. §3604(f). Jd. J] 12-13. Defendant Breeze
Condo is a “person” who operates a multifamily dwelling, the subject homeowner’s association at
the center of this litigation, and the subject property to this action. Jd. { 14.
On or about April 12, 2022, Plaintiff and Mr. Tomlinson entered into a one-year lease
agreement with Jeffrey Cohen (owner of Unit 304), under the rules and regulations of Defendant
Breeze Condo, and managed by Defendant Nautica Management. Jd. § 19. Defendant Nautica
Management is employed as the agent and property management firm for Defendant Breeze
Condo. Jd. J 15. On or about April 22, 2022, Plaintiff and Mr. Tomlinson moved into the subject
property. Jd. §20. On May 29, 2022, Plaintiff submitted an emotional support animal application
to Defendant Nautica Management on behalf of Mr. Tomlinson that included the requisite “pet
form.” Jd. J 21. On June 14, Defendant Richard Muller denied the emotional support animal
application because of the dog’s size and breed. Jd. { 23. Defendant Muller is the licensed
community association manager, agent for Defendant Breeze Condo, and manager and CEO of
Defendant Nautica Management. Jd. { 10. There was some back and forth between Plaintiff and
Defendants about reconsideration of the denied application, which ultimately ended with
Defendant Muller replying to Plaintiff that “the decision has not been made lightly, the matter was
discussed at length with their attorney and as such would not be reconsidered.” Jd. Jf] 25-26.
Mr. Tomlinson moved out of Unit 304 on January 28, 2023. Jd. 31. Even so, Plaintiff
planned to renew the lease for Unit 304, even relaying to her landlord’s real estate agent that “[i]t
will be just me and L.G.T. with Nick being a regular visitor.” Jd. § 32. However, on February 24,
2023, Plaintiff received an email from her real estate agent advising her that the lease for Unit 304
“will not be renewed when it expires on April 30, 2023.” Jd. 433. After Plaintiff multiple attempts
to speak with her real estate agent, she finally told her that “the law does not require a reason, and
she was not aware of any reason.” Jd. [{ 34-35.
On March 14, 2023, Plaintiff signed a lease with Renata Oropallo for Unit 311 within
Breeze Condo. Id. | 36. Ms. Oropallo sent a copy of the lease to Defendant Nautica Management
for approval. Jd. Defendant Muller responded by email and said to Ms. Oropallo that “[al]ll leases
require approval by the board of directors.” Jd § 37. On March 21, 2023, Defendant Muller
notified both Plaintiff and Ms. Oropallo with an official letter that stated:
We regret to inform you that your tenant's application has been considered by the
board of directors and will not be approved. The denial is based on grounds
including but not limited to a material representation on the tenant's initial
application dated on or about April 13, 2022, for lease and that of an ongoing legal
matter the tenant and her companion have filed against the association that remains
ongoing. The ongoing legal matter has already cost the association thousands of
dollars and has the propensity to cost thousands of more dollars along with
increasing the already expensive insurance rates for the association.
Id. § 39. Plaintiff alleges that not only did Defendants deny Plaintiff and Mr. Tomlinson’s request
for reasonable accommodations, but Defendants also willfully retaliated against Plaintiff by
denying her rental application for Unit 311 and the opportunity to renew Unit 304. Id {ff 40-41.
Plaintiff ultimately found a rental property and on April 25, 2023, moved out of Breeze Condo.
Id. 43. As aresult of Defendants’ actions, Plaintiff suffered and will continue to suffer loss and
injury including (but not limited to) loss of a housing opportunity, humiliation, embarrassment,
emotional distress, and deprivation of the right to equal housing opportunities. Id. 4 45.
Plaintiff (individually and on behalf of her minor child L.T.G.) filed this lawsuit against
Breeze Condo, Nautica Management, LLC. and Richard Muller. Plaintiff asserts three counts
against Defendants for: (I) Discrimination under 42 U.S.C. §§ 3601, et seq.; (II) Retaliation and
Interference under 42 U.S.C. § 3617; and (IID Interference (with a Contract) under 42 U.S.C. §
3617. Defendants subsequently moved to dismiss Counts J, II, and III.
LEGAL STANDARD: RULE 12(b)(6) MOTION TO DISMISS
In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court
considers only the four corners of the complaint. A court must accept as true the facts as set forth
in the complaint.
“To survive a motion to dismiss, plaintiffs must do more than merely state legal
conclusions,” instead plaintiffs must “allege some specific factual basis for those conclusions or
face dismissal of their claims.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1263 (11th Cir.
2004). When ruling on a motion to dismiss, a court must view the complaint in the light most
favorable to the plaintiff and accept the plaintiffs well-pleaded facts as true. See St. Joseph's Hosp.,
Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 953 (11th Cir. 1986). This tenet, however, does not
apply to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed.
2d 868 (2009). Moreover, “[w]hile legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Jd. at 1950. Those “[flactual allegations must be
4 .
enough to raise a right to relief above the speculative level on the assumption that all of the
complaint's allegations are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 1278. Ct. 1955,
167 L. Ed. 2d 929 (2007). In short, the complaint must not merely allege misconduct, but must
demonstrate that the pleader is entitled to relief. See Iqbal, 129 S. Ct. at 1950.
DISCUSSION
As stated supra, Defendants moved to dismiss Plaintiff's Amended Complaint. First,
Defendants argue that the Complaint fails to include a statement sufficiently explaining why
Plaintiff was entitled to any relief against the Defendants nor against Defendant Muller,
individually, and Plaintiff failed to include a demand for any relief sought against all Defendants.
Next, Defendants state that Defendant Muller is immune from personal liability under Florida law.
Onto the counts, Defendants argue that Count I must be dismissed as the Complaint is devoid of
any allegations to establish that Plaintiff is disabled as defined by the Fair Housing Act or that an
emotional support animal is necessary to ameliorate the effects of her disability. On Count II,
Defendants argue that Plaintiff's fail to state a claim for retaliatory housing discrimination. Lastly,
on Count III, Defendants state that Plaintiff is unable to meet the first prong of the elements for a
violation of 42 U.S.C. § 3617, thus warranting dismissal. The Court discusses—and rejects—each
argument in turn.
RULE 8(a) STANDARD & ANALYSIS
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). It is within “the district court’s inherent authority to control its docket and ensure the
prompt resolution of lawsuits, which in some circumstances includes the power to dismiss a
complaint for failure to comply with Rule 8(a)(2).” Davis v. Ft. Lauderdale Police Dep’t Int. Affs.,
No. 23-10034, 2024 U.S. App. LEXIS 3245 (11th Cir. Feb. 12, 2024) (citing Weiland v. Palm
Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1320 (11th Cir. 2015)). A dismissal under Rule 8(a)(2)
“is appropriate where ‘it is virtually impossible to know which allegations of fact are intended to
support which claim(s) for relief.’” Jd. at 1325 (emphasis in original) (quoting Anderson v. Dist.
Bad. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)).
Here, Defendants write that the Complaint fails to state a claim for relief against
Defendants. Specifically, Defendants state that Plaintiff failed to include a statement sufficiently
explaining why Plaintiff was entitled to any relief against the Defendants nor against Muller,
individually. Plaintiff, in response, states that she has pled eight pages of factual allegations that
sets out the actions of the parties constituting violations of the Fair Housing Act, and three pages
of demands for relief against the Defendants.
The Court finds that the Complaint states claims upon which relief may be granted against
Defendants. While the Court recognizes that generally it is good practice to specify exact conduct
each defendant engaged in as to each count, here the allegations are that all Defendants acted in
unison. Plaintiff specifically alleges that “Defendants were personally involved in, authorized and
ratified each and every discriminatory act in retaliation herein.” [ECF No. 19] J 67. The
Complaint goes further to explain the role each Defendant played in the violations at hand and
causes of action. Breeze Condo operates the condominium building where Plaintiff resided,
Nautica Management manages Breeze Condo, and Muller is an agent for Breeze Condo and
manager and CEO for Nautica Management. [ECF No. 19] §] 8-10. Finally, (and contrary to
Defendants’ arguments), the Complaint writes that as a result of Defendants’ actions in each role,
Plaintiff “suffered and are continuing to suffer actual damages” and thus “demand judgment
against Defendants, Breeze Condominium Association, Inc., Nautica Management, LLC, and
Richard Muller.” Jd. 477. At this early stage of the case, Plaintiffs allegations are sufficient to
state a claim for individual liability under the Fair Housing Act. The Court denies Defendants’
motion to dismiss Plaintiff's Amended Complaint for failure to state a claim.
IMMUNITY UNDER FLORIDA LAW — STANDARD & ANALYSIS
Defendants also move to dismiss the claims (specifically) against Defendant Muller
because “it is well-settled law in Florida that officers and directors of a not-for-profit corporation
(which includes condominium associations) are generally immune from personal liability or
money damages.” See Fla. Stat. § 617.0834; see also Fla. Stat. §718.111(1)(d). Defendants cite
to the Third District Court of Appeal in Perlow v. Goldberg, which affirmed a state “trial court’s
dismissal with prejudice of an action against condominium association directors relying on the
longstanding proposition that condominium association directors are immune from individual
liability, absent crime, fraud, self-dealing, or unjust enrichment.” 700 So. 3d 148, 149-50 (Fla. 3d
DCA 1997). The Fourth District Court of Appeal in Raphael v. Silverman ruled similarly. 22 So.
3d 837, 838-39. There, the court also “affirmed dismissal of a plaintiff unit owner’s complaint
against the individual condominium directors.” Jd. The court reasoned that “the board’s decision
to modify certain common elements did not rise to level of ‘self-dealing’ on the part of the director
before individual liability may be Imposed.” Jd.
This exact legal question was addressed recently by Judge Altman in Portnoy v. Mei
Condo. Ass'n, No. 23-cv-23475, 2024 U.S. Dist. LEXIS 34877, at *6 (S.D. Fla. Feb. 28, 2024).
The Portnoy defendants also argued chiefly with the same state cases Perlow and Raphael. Id. at
6-7. However, the Portnoy court struck the immunity argument for two reasons. Jd. First, the
state cases cited have nothing to do with the Fair Housing Act—a federal statute. Jd. at 7. Second,
courts in our district have repeatedly rejected the argument that an individual can deploy Fla. Stat.
§ 617.0834 to shield liability from the Fair Housing Act. Jd. In Hous. Opportunities Project for
Excellence, Inc. v. Key Colony No. 4 Condo. Assoc., 510 F. Supp. 2d 1003, 1013-14 (S.D. Fla.
2007), Judge Martinez encountered this identical immunity argument. There, the court ruled that
“Tijt is clear that the Fair Housing Act allows for claims to be brought against individual
[dJefendants.” Jd. Judge Scola in Sabal Palm Condos. Of Pine Island Ridge Ass’n Inc. y. Fischer,
2014 WL 988767, at *4 (S.D. Fla. Mar. 13, 2014) found similarly, writing that “[Section]
617.0834, a state statute, cannot bar a claim under the [Fair Housing Act], a federal cause of
action.” State law is naturally preempted to the extent of a conflict with a federal statute. Thus,
the Court similarly finds that Defendant Muller cannot be immune to liability under the Fair □
Housing Act by relying on either Florida statute.
The Court agrees with both Plaintiff and the precedent in our district. Defendants’ motion
to dismiss the Complaint against Defendant Muller on Florida law immunity grounds is denied.
COUNT I: DISCRIMINATION, FAIR HOUSING ACT —- STANDARD & ANALYSIS
The Fair Housing Act states that it is unlawful to discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of
that buyer or renter, or any person associated with that buyer or renter. See 42 U.S.C. § 3604(f)(1).
Discrimination under the Fair Housing Act includes “a refusal to make reasonable
accommodations in rules, policies, practices, or services, when such accommodations may be
necessary to afford such person equal opportunity to use and enjoy a dwelling[.]” 42 U.S.C. §
3604(f)(3)(B). To prevail on a failure-to-accommodate claim, a plaintiff must establish that: “(1)
he/she is disabled or handicapped within the meaning of the FHA, (2) he/she requested a
reasonable accommodation, (3) such accommodation was necessary to afford him/her an
opportunity to use and enj oy his/her dwelling, and (4) the defendants refused to make the requested
accommodation.” See Hawn v. Shoreline Towers Phase 1 Condo. Ass’n, Inc., 347 Fed. App’x.
464, 467 (11th Cir. 2009) (citing Schwarz v. City of Treasure Island, 544 F. 3d 1201, 1218-19
(11th Cir. 2008)).
Defendants’ argument hinges on whether Plaintiff is disabled as defined by the Fair
Housing Act. Defendants argue that because there are no allegations in the Complaint that Plaintiff
is disabled or handicapped, there can be no discrimination against Plaintiff. In return, Plaintiff
does not argue that she is disabled or handicapped, but that under the Fair Housing Act, she is
classified as an “aggrieved” and “associated” person with standing to bring Fair Housing Act
claims. The Fair Housing Act defines an aggrieved person as “any person who— (1) claims to
have been injured by a discriminatory housing practice; or (2) believes that such person will be
injured by a discriminatory housing practice that is about to occur.” 42 U.S.C. § 3602(i). The Fair
Housing Act also specifically includes “any person associated with that person” when it comes to
bringing claims of discrimination. See 42 U.S.C. § 3604(f)(1)(C).
The Court disagrees with Defendants’ arguments. Defendants state that “the Complaint is
devoid of any allegations to establish that Plaintiff is disabled as defined by the FFHA!...” That
fact is not hidden. The Complaint explicitly alleges that Mr. Tomlinson is the individual with a
disability under 42 U.S.C. § 3604(h) and that Plaintiff was associated with him and accordingly
covered under 42 U.S.C. § 3604(f). See [ECF No. 19] {ff 12-13. Defendants state that there are
“no allegations that Plaintiff requested an accommodation,” but the Complaint specifically states
that Plaintiff submitted an application including the pet form, photographs, and letter from
psychiatrist. See [ECF No. 19] 421. Defendants do not discuss anything about the classification
of an “aggrieved” or “associated” person, which the Fair Housing Act plainly makes unlawful
discrimination against persons associated with the disabled person. See 42 U.S.C. § 3604(f)(2)(C).
Wasserman vy. Three Seasons Ass’n No. 1, Inc., also provides some clarity. 998 F. Supp. 1445,
1447 (S.D. Fla. 1998). There, the court cited the Supreme Court’s rule that “because the [Fair
Housing Act] gives standing to ‘aggrieved persons,’ it does not require membership in the
_ protected class for standing. Jd. (citing Gladstone, Realtors v. Village of Bellwood, 441 US. 91,
103, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979)). As such, a failure to accommodate claim is available
to Plaintiff as she is associated with Mr. Tomlinson. Thus, moving past the standing issue, what
is critical is whether Plaintiff alleged an injury. See 42 U.S.C. § 3602(). Plaintiff has done just
that: “[a]s a result of Defendants’ actions described above, Plaintiffs have suffered and will
continue to suffer irreparable loss and injury including, but not limited to loss of a housing
opportunity, humiliation, embarrassment, emotional distress, and deprivation of their right to equal
1 Typographical error by Defendants.
10
housing opportunities.” [ECF No. 19] 446. Accordingly, Defendants’ motion to dismiss Count I □
is denied.
COUNT II: RETALIATION AND INTERFERENCE, FAIR HOUSING ACT - □
STANDARD & ANALYSIS
Under the Fair Housing Acct, it is “unlawful to coerce, intimidate, threaten, or interfere with
any person in the exercise of, or on account of his having exercised or enjoyed, or on account of
his having aided or encouraged any other person in the exercise or enjoyment of any right granted
or protected by section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617. Section 3617
prohibits retaliation for the exercise of a right protected by the Fair Housing Act. See Hous. Opps.
Project for Excellence, Inc. v. Key Colony No. 4 Condo. Assoc., 510 F. Supp. 2d 1003, 1013 (S.D.
Fla. 2007). To state a cause of action for retaliation in violation of the Fair Housing Act, a plaintiff
must allege (1) that he or she engaged in protected activity, (2) that he or she suffered adverse
actions, and (3) that the adverse action was causally related to the protected activity. Jd. (citing
Shotz v. City of Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003)).
Defendants dispute retaliation in two ways. First, Defendants state that Plaintiff has not
participated in protected activity. Second, Defendants argue that Plaintiff cannot point to any
“adverse action” that gives rise to the level of coercion or intimidation necessary to state a claim
for retaliation under the Fair Housing Act.
With respect to Defendants’ first argument, the Complaint states that the rental application
for Unit 311 was denied in retaliation due to Mr. Tomlinson “having filed a Housing
Discrimination Complaint with HUD, because of Defendants denial of reasonable
11
accommodation.” [ECF No. 19] § 64. It is clear that filing a complaint for a violation of the Fair
Housing Act is constituted as protected activity. See Hous. Opps. Project for Excellence, Inc., 510
F, Supp. 2d at 1013; see also Alley v. Les Chateaux Condo, Ass’n, No. 8:10-cv-760-T-33TGW,
2010 U.S. Dist. LEXIS 121200, at *15 (M.D. Fla. Nov. 16, 2010). Defendants argue that the
protected activity was purportedly done by a non-party to this action. This argument is again,
unpersuasive. Section 3617 states specifically, “of any right granted or protected by section 3603,
3604, 3605, or 3606 of this title.” Section 3604(f) specifically includes, “any person associated
with that person.” See 42 U.S.C. § 3604(f). Thus, the Fair Housing Act explicitly allows for
Plaintiff here, and thus the “protected activity” prong is met.
The Court also finds Defendants’ second argument unpersuasive. Defendants write that
Plaintiff cannot point to any “adverse action” that would “give rise to the level of coercion or
intimidation necessary to state a claim for retaliation under the Fair Housing Act, but do not
provide any case law that provides a “standard” or “level” of coercion or intimidation necessary
to state a claim for retaliation. At this stage of the litigation, Plaintiffs allegations of adverse
action are sufficient get over the motion to dismiss hump. Plaintiff alleges that Defendants
interfered with her enjoyment of her protected rights when they wrote to Plaintiff's new landlord
denying approval of the lease. See [ECF No. 19] 439. Defendants wrote specifically that they
would not approve of the second unit “because of an ongoing legal matter that the tenant and her
companion have filed against the association and remains ongoing.” Jd. Accordingly, Defendants’
motion to dismiss Count II is denied.
12
COUNT III: INTERFERENCE (WITH CONTRACT), FAIR HOUSING ACT —
STANDARD & ANALYSIS
Plaintiff's third count (interference with contract) is also brought as a violation of 42 U.S.C. §
3617. A Section 3617 interference claim requires proof of three elements: (1) that the plaintiff
exercised or enjoyed “any right granted or protected by” Sections 3603-3606; (2) that the
defendant's conduct constituted interference; and (3) a causal connection existed between the
exercise or enjoyment of the right and the defendant's conduct. Moore v. Camden Prop. Tr., 816
F, App’x 324, 335 (11th Cir. 2020).
Defendants argue that Plaintiff is unable to meet the first prong because Count III is an
alleged interference with a contract for Unit 311, a unit that Plaintiff was looking to rent without
Mr. Tomlinson. Further, Defendants state that when Plaintiff signed the contract for Unit 311, she
was not “associated” with Mr. Tomlinson, a person with disability. However, that distinction does
not matter. Looking at the plain text of Section 3604(f)(1)(A)-(C), it states that “[t]o discriminate
in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter
because of a handicap of that buyer or renter, or any person associated with that buyer or renter.”
Here, the Complaint’s allegations fit squarely within section 3604(f)(1)(C). Plaintiff alleges that
her contract for Unit 311 was interfered with by Defendants because of the denial and ongoing
legal matter regarding the denial of Mr. Tomlinson’s emotional support animal in Unit 304. See
[ECF No. 19] {7 40-41. These allegations are enough to show discrimination in denying a dwelling
to renter (Plaintiff) because of a handicap of a person (Mr. Tomlinson) associated with that renter
(Plaintiff). Defendants’ motion to dismiss Count III is denied.
13
CONCLUSION
After careful review, therefore, itis ORDERED AND ADJUDGED that Defendants’
Motion to Dismiss the Amended Complaint [ECF No. 20] is DENIED. Y
DONE AND ORDERED in Chambers at Miami, Florida, this 2 of June 2024.
FEDERICO A. MORENO
UNITED STATES DISTRICT JUDGE
Copies furnished to: .
Counsel of Record
14