# Phillips v. Acacia on the Green Condominium Association, Inc.

> District Court, N.D. Ohio · October 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10368816

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** October 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

GENE B. PHILLIPS, et al., ) CASE NO. 1:19CV1277
)
Plaintiffs, )
)
v. ) MAGISTRATE JUDGE
) KATHLEEN B. BURKE
ACACIA ON THE GREEN )
CONDOMINIUM ASSOCIATION, INC., )
et al., )
)
Defendants. ) MEMORANDUM OPINION & ORDER

The two claims remaining in this case1 are brought under the federal Fair Housing
Amendments Act, 42 U.S.C. §§ 3601, et seq. (“FHAA”) and the analogous Ohio statute.
Plaintiffs Gene B. Phillips (“Phillips”) and Stephen G. Weiss (“Weiss”) own first floor
units with patios at a condominium complex, Acacia on the Green (“Acacia”), that is managed
by Defendant Acacia on the Green Condominium Association, Inc. (“AGCAI”).2 AGCAI
provides a number of amenities for the use of all its residents, including a pavilion with grills, an
outdoor pool, and an underground heated garage. Its rules prohibit residents from having
personal grills on their patios or balconies. Over a 5-year period beginning in 2013 Weiss sought
an exception to that rule on numerous occasions and for a number of reasons, none of which
related to any alleged disability. His requests were denied. In August 2018, Weiss again sought
an exception and, for the first time, cited the FHAA as the basis for his request. Phillips

1 Plaintiffs filed an 8-count complaint in the Cuyahoga County Court of Common Pleas on May 2, 2019.
Defendants removed the case to this Court on June 4, 2019. The Complaint is attached to the Notice of Removal as
Doc. 1-2. By Order dated July 11, 2019 (Doc. 11), this Court remanded 6 of the Counts, which allege only state law
claims. Counts IV and V are the claims remaining before this Court.

2 In addition to AGCAI, Defendants include 7 current and former members of AGCAI’s Board.
thereafter made a similar request. AGCAI denied Weiss’s request; it proposed an
accommodation to Phillips that was suggested by her doctor.
Defendants have filed a Motion for Summary Judgment (hereinafter, “Motion”) (Doc.
42), arguing that they are entitled to judgment as a matter of law because Plaintiffs can show no

genuine issue of material fact as to two of the elements they must prove under the FHAA,
necessity and reasonableness. Id., p. 7.3 Briefing on the Motion is complete.4 Having reviewed
the briefs and evidentiary submissions of the parties, the undersigned concludes for the reasons
set forth below that there is no genuine issue of material fact as to the element of necessity and
therefore GRANTS Defendants’ Motion.
I. Background Facts
Acacia on the Green is a two-building, 273-unit condominium in Lyndhurst, Ohio, that is
managed by AGCAI. It is home to approximately 375 people. Doc. 42-1, p. 1, ¶3 (Declaration
of Lisa Flynn, AGCAI Community Association Manager); Doc. 1-2, p. 1 (Complaint). AGCAI
was established in 1980 when the buildings were converted from an apartment complex to

condominiums. When the site was an apartment complex, residents were permitted to have grills
on their patios and balconies. Doc. 49, p. 12; Doc. 49-14, p. 2. AGCAI has a rule banning unit
owners from having grills on patios and balconies5 and has installed grills in a common area for

3 Citations are to ECF page numbers.

4 See Plaintiffs’ Brief in Opposition (Doc. 49), Defendants’ Reply (Doc. 50), and the parties’ supplemental briefing
regarding the Declaration and testimony of David Yuhas, Docs. 57 and 58.

5 Grills belonging to some former renters whose apartments were converted to condominium units remained on the
premises for a period of time after the conversion. However, they were removed within a few years. Doc. 42-5, pp.
19-20. As first floor unit owners, Plaintiffs have “patios,” not “balconies.” Plaintiff Weiss has pointed out that
older versions of AGCAI’s rule banning grills referred only to “balconies.” Doc. 49-2, p. 3, ¶ 17. However,
Plaintiffs do not dispute that the rule has expressly banned grilling on both “balconies” and “patios” since 2010.
Doc. 42-2, p. 13; Doc. 50-1, p. 21.
the use of all residents. Doc. 42-1, pp. 1-2, ¶¶5, 9.6 AGCAI banned personal grills “for multiple
reasons including concerns regarding the use of open flames in close proximity to a multi-unit
residential building; the attraction of rodents and small animals to grease and food droppings
often associated with outdoor cooking; and the nuisance created by unwanted odors and smoke

arising from the grill and spreading to other units.” Id.
A. Evidence as to Plaintiff Phillips
In her Declaration submitted in opposition to the Motion, Phillips states that she has lived
in her ground floor unit, which is adjacent to Plaintiff Weiss’s unit, since 2005. Doc. 49-16, p. 1,
¶¶ 2-3; Doc. 1-2, p. 13, ¶41; Doc. 42-6, p. 5 (Phillips deposition). Since about 2010 or 2011 she
had “pondered” why she was not permitted to have a grill on her patio. Id., pp. 7-8. She had
friends who lived elsewhere with smaller patios who had grills. Id. She began to speak with
Weiss about ACGAI’s ban on patio grills in 2013 or 2014. Id. At that time, she agreed with
Weiss that AGCAI’s rules banning grills on patios was arbitrary, especially since grills had been
permitted at one time. Id., p. 9.

Phillips first requested permission to have a gas grill on her patio in 2018 because she
“finally got aggravated and said enough is enough.” Id. Her request, via letter, did not mention
the FHAA or any disability. Id., pp. 10-11. The Board rejected her request on August 7, 2018.7
Id., p. 14. On August 29, 2018, after talking with Weiss, she submitted a second letter requesting
permission to have a grill on her patio “based upon the Fair Housing Act which protects against
disability discrimination.” Id., p. 13; Doc. 49-16, p. 2, ¶7. The letter did not identify her
disability. The Board again rejected her request in a letter similar to its first. Doc. 42-6, p. 11.

6 In 2016-2017, AGCAI built a pavilion over the grilling area. Doc. 49-2, p. 2, ¶ 8.

7 Phillips’ first letter is not in the record.
Phillips states in her Declaration that she has difficulty walking. Doc. 49-16, p. 2, ¶9.
She says that she experiences “substantial pain whenever I walk anywhere, including to the
Acacia [grilling] pavilion.” Doc. 49-16, p. 2, ¶7. She always uses a cane when walking and
sometimes a walker. Doc. 49-16, p. 2, ¶9. Despite her pain when walking, she walks to the pool

“almost daily” during the summer to go swimming because her doctor has recommended
swimming in heated water as therapy. Doc. 49-16, p. 2, ¶12. The pool is adjacent to the pavilion
that houses the common grilling area. Doc. 50-1, p. 27 (Weiss Deposition).
After this case was filed, on January 20, 2020, Phillips submitted a letter to the Board
from her physician, Dr. Van Warren. Doc. 42-1, p. 2, ¶10; Doc. 42-7. Dr. Van Warren stated
that Phillips “has generalized inflammatory arthritis, generalized osteoarthritis, and chronic pain
syndrome.” He also stated, “She has difficulty walking prolonged distances without using a cane
for support” and “has difficulty walking any prolonged distances while using a cane while
carrying food and supplies for outdoor cooking.” He concluded with two alternative
suggestions:

She should benefit from having outdoor cooking equipment nearer to her living quarters
or have some method of carrying food and supplies to the current outdoor cooking
facility.

Id.
The Board responded to Phillips’ submission of her doctor’s letter, explaining that it had
met, considered her request, and proposed the following accommodation, which it noted “meets
the parameters set out by your treating physician”:
At the time that you would like to go to the grilling area/pavilion with food and supplies,
if need be, place a call to the garage or gatehouse and they will bring a shopping cart to
your unit. Should you need assistance with pushing the cart outside to the pavilion, they
will take the cart to the pavilion.

Doc. 42-8.
In her Declaration, Phillips rejects the accommodation offered by the Board. She states
that the assistance offered “would still require me to continue suffering great pain in having to
walk to and from the grills at the pavilion” and she doesn’t believe the Board’s “belated” offer is
reasonable. Doc. 49-16, p. 2, ¶14.

B. Evidence as to Plaintiff Weiss
Weiss’s Declaration submitted in opposition to the Motion states that he has lived at
Acacia with his wife in a ground floor unit with a patio since 2012. His unit adjoins Phillips’
unit. Doc. 49-2, pp. 1-2, ¶¶4-5 (Weiss Declaration). The grilling pavilion is adjacent to the pool
and both are located at the rear of the building in which Plaintiffs live. Id., p. 2, ¶7.
On August 7, 2013, Weiss wrote a letter to the Board requesting permission to use a gas
grill on his patio. Doc. 42-5, p. 12 (letter). He cited the Lyndhurst and Ohio Fire Codes and
stated that he would use a grill on his patio in a manner consistent with those codes, i.e., he
would place his grill the required distance from the exterior building wall8 and would have a fire
extinguisher available. Id. The reasons he cited for wanting a grill on his patio were: he might

drop food on the lobby carpet when carrying it to the common grilling area (walking through the
lobby was preferable to walking outside because the grass was too wet to walk on); and the grills
in the common area had been “somewhat unreliable this year.”9 Id. In July 2014, the Board
informed Weiss by letter that it discussed his request at a meeting and declined to change its rule

8 Weiss’s August 7, 2013, letter said he would place the grill 15 feet from the exterior building wall. In subsequent
correspondence he said the grill would be 10 feet away. His first letter apparently was based on a misreading of the
Lyndhurst Fire Code, which requires a vertical distance of 15 feet and a horizontal distance of 10 feet. See Doc. 49-
21.

9 In his deposition, Weiss stated that he asked for permission to have a grill on his patio “[b]ecause I saw the
favoritism that they allowed certain people to break certain rules, and after checking with the safety of it, I wrote
them a letter saying, well, why don’t you let me have a grill, you break rules for other people?” Doc. 50-1, p. 19
(Weiss deposition). Weiss acknowledged that AGCAI did not let any residents have grills on their patios. Id.
banning grills on patios, explaining that it “does not want to contend with liability and safety
issues with regards to propane tanks” and “[t]here is the concern of the residual smoke going into
and up to surrounding units.” Doc. 42-5, p. 13.
Shortly thereafter, the Board denied another request Weiss made to use a grill on his
patio.10 Doc. 42-5, p. 14.

Weiss hired an attorney who, by letter dated February 13, 2015, informed the Board that
AGCAI’s Bylaws entitled Weiss to use a grill on his patio and promised that Weiss’s use of a
grill on his patio would not adversely affect his neighbors. Doc. 42-5, p. 15. On March 6, 2015,
the Board, through counsel, advised that it disagreed with counsel’s interpretation of AGCAI’s
governing documents and reiterated that its rule protects residents from “unwanted odors and
fumes arising from a grill … in close proximity” and “addresses fire safety concerns pertaining
to open flames near a large multi-family building.” Doc. 42-5, p. 17.
In 2016 Weiss renewed his request to have a grill on his patio via another letter to the
Board, again relying upon the Fire Code. Again, the Board denied his request, on May 23, 2016,

explaining that AGCAI was permitted to, and had chosen to, adopt stricter rules regarding the
use of personal grills than the standards set forth in the Fire Code.11 Doc. 42-5, pp. 19-20.
On May 11, 2017, Weiss, through new counsel, sent a letter to the Board asserting that he
was entitled to have a grill on his patio based upon counsel’s interpretation of AGCAI’s
Declarations and demanding that Weiss be permitted to use a gas grill on his patio. Doc. 42-2, p.

10 The Board’s letter denying Weiss’s request is in the record but Weiss’s request is not. When asked during his
deposition about the Board’s letters in response to letters he had purportedly written but which were not produced
during discovery, Weiss explained, “Okay. I wrote a lot of letters. If it is a letter that was written, it may have been. I
wouldn’t say specifically, but I did write letters.” Doc. 50-1, p. 21. In any event, Weiss does not dispute that the
Board’s letters were in response to letters he had sent, notwithstanding the absence of some of his letters from the
record. See also Doc. 49-2, p. 2, ¶¶9, 10.

11 The letter does not specify whether the “Fire Code” was Lyndhurst’s or the State of Ohio’s.
21. On June 7, 2017, AGCAI’s attorney replied by letter, again explaining the legal basis
supporting ACGAI’s prohibition of grills on patios. Doc. 42-2, pp. 23-24.
On June 22, 2017, Weiss sent a letter to the Board arguing for his right to have a grill on
his patio; he also referenced a prior letter in which he had urged ACGAI to shut down the

communal grilling area due to safety concerns. Doc. 42-5, pp. 25-26. He sent yet another letter
to the Board dated July 11, 2017, asserting his right to have a gas grill on his patio based on
ACGAI’s Declarations. Doc. 42-5, p. 27. 12
On August 14, 2018, five years after his original request and two years after he became
disabled (see evidence discussed below), Weiss sent a letter to the Board stating, “This letter is a
request for a reasonable accommodation under the FHA requirements, for people with
disabilities, to have a gas grill on my patio.” Doc. 42-5, p. 28. His letter did not identify his
disability.
On September 7, 2018, the Board sent Weiss a letter stating that it considered his request
during a Board meeting the previous day and denied it. Doc. 42-5, p. 28.

In his Declaration, Weiss states that he was diagnosed with lymphoma in 2016 and was
required to undergo chemotherapy for many months. In the same year, he learned he had an
immune deficiency.13 Doc. 49-2, p. 3, ¶11. The only medication he regularly takes is for his
lymphoma. Doc. 50-1, p. 23 (Weiss Depo.).
Weiss does not use a cane or other mobility aid. Doc. 50-1, p. 25. He parks his car in
Acacia’s underground garage and walks to it. Id., p. 27. He estimated that the distance from his

12 In their briefing in this case, Plaintiffs have continued to refer to state law and AGCAI’s Declarations in an effort
to challenge the propriety under state law of AGCAI’s rule banning unit owners from having grills on their patios
and balconies. See, e.g., Doc. 49, pp. 18-20. That issue is not before this Court and therefore is not considered
herein. Rather, the issue before the Court is whether Defendants’ actions violate the FHAA and RC § 4112.02.

13 The immune deficiency that Weiss has is circular vascular immune deficiency (CVID). Doc. 49-2, p. 3, ¶ 11.
unit to the garage is approximately the same as the distance from his unit to the grilling pavilion.
Id., pp. 12-13, 26-27.14 Weiss walked to the grilling pavilion ten times in 2019. Id., p. 27.
Notwithstanding his general ability to walk, Weiss states that he has periodic episodes
when he can only walk a few steps within his unit:

The combined effect of my ailments and their treatments have caused me to periodically
to suffer from extreme exhaustion which makes me too weak to even walk except for a
few steps in my apartment, which exhaustion can last for many hours and even days.
These effects generally wear off but return at unexpected times. When my weakness
returns I am not able to walk anywhere outside of my apartment, including to my car in
the Acacia garage or to the pavilion. I would like to grill on my large patio which is only
a few steps for me to walk to.

Doc. 49-2, p. 3, ¶12.
On December 28, 2018, Weiss sent the Board a letter from his treating immunologist,
which stated:
The accommodation for Mr. Weiss to have a grill on his patio is necessary due to his
disability from cancer and CVID. These two diseases substantially affect Mr. Weiss’s
ability to walk. The accommodation will give him full use and enjoyment of his unit.

Doc. 49-2, p. 22.
The record does not contain a response.
C. The Claims
Counts IV and V of Plaintiffs’ Complaint, the only claims remaining in this case,15 allege
that Plaintiffs are handicapped persons and that Defendants violated the FHAA and the
analogous Ohio statute when they denied Plaintiffs’ requests to have gas grills on their patios so

14 During his deposition he estimated the distance to both locations as a couple of hundred yards. Id. In his
Declaration, he states that the distance to the grilling pavilion from the front door of his unit is 600 feet. Doc. 49-2,
p. 2, ¶8.

15 See note 1 above. Count IV contains an additional allegation as to violations of the Americans with Disabilities
Act, 42 U.S.C. §§ 12001 et seq. but Plaintiffs have withdrawn that claim. Doc. 32.
that they would not have to walk to the common grilling pavilion. They assert that that their
requested accommodation, i.e., having personal gas grills on their patios, is reasonable and
imposes little, if any, burden on AGCAI. Plaintiffs further allege that Defendants’ denials of the
requested accommodation “have caused Plaintiffs to incur disruption to their full enjoyment and

use of their respective dwellings, as well as having caused each of them great emotional distress .
. .” Doc. 1-2, p. 47, ¶203.
II. Law and Analysis
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he 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. The movant
“bears the initial responsibility of informing the district court of the basis for its motion,
identifying those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, which it believes demonstrates the absence of

a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotations omitted).
After the moving party has carried its initial burden of showing that there are no genuine
issues of material fact in dispute, the burden shifts to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “Inferences to be drawn from
the underlying facts . . . must be viewed in the light most favorable to the party opposing the
motion.” Id. at 587 (internal quotations and citations omitted). However, the non-moving party
“must do more than simply show that there is some metaphysical doubt as to the material facts.”
Id. at 586. The non-moving party must present specific facts that demonstrate there is a genuine
issue of material fact for trial. Id. at 587. “The ‘mere possibility’ of a factual dispute is not
enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). “A genuine issue for trial exists ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Muncie Power Producers, Inc.
v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (quoting Anderson, 477 U.S. at
248). Thus, for a party to avoid summary judgment, “there must be evidence on which a jury
could reasonably find for [that party].” Anderson, 477 U.S. at 252. Accordingly, in determining
whether summary judgment is warranted, a court generally asks, “whether there is evidence upon
which a jury can properly proceed to find a verdict for the party producing it, upon whom the
onus of proof is imposed.” Id. (citation omitted).
B. The FHAA and R.C. § 4112.02
The FHAA prohibits discrimination “against any person in the terms, conditions, or

privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection
with such dwelling, because of a handicap....” 42 U.S.C. § 3604(f)(2).16 “Discrimination” is
“[a] refusal to make reasonable accommodations in rules, policies, practices, or services, when
such accommodations may be made necessary to afford such person equal opportunity to use and
enjoy a dwelling[.]” § 3604(f)(3)(B).
In order to prevail, a plaintiff in an FHAA case must prove that:
(1) he or she suffers from a disability within the meaning of the FHAA;
(2) the defendant knew or reasonably should have known of the disability;

16 Congress passed the federal Fair Housing Act (FHA) as Title VIII of the Civil Rights Act of 1968 to prohibit
housing discrimination on the basis of race, gender, and national origin. In 1988, Congress passed the Fair Housing
Amendments Act (FHAA), which expanded the coverage of the FHA to include people with disabilities. Larkin v.
State of Mich. Dep’t of Soc. Servs., 89 F.3d 285, 288 (6th Cir. 1996).
(3) the requested accommodation may be necessary to afford “an equal opportunity to use
and enjoy the dwelling;”
(4) the accommodation is reasonable; and
(5) the defendant refused to make the accommodation.

Overlook Mut. Homes, Inc. v. Spencer, 415 F. App’x 617, 621 (6th Cir. 2011) (citing DuBois v.
Ass’n. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2005)); see also
Hollis v. Chestnut Bend Homeowners Ass’n., 760 F.3d 531, 541 (6th Cir. 2014) (citing
Overlook).
Claims brought under RC 4112.02(H) are analyzed using the same standard as is applied
to an FHAA claim, and courts consider them together. See Means v. City of Dayton, 111
F.Supp.2d 969, 973 (S.D. Ohio 2000).
Defendants do not argue in the Motion that Plaintiffs cannot meet the first two elements
of an FHAA claim: (1) that they each suffer from a disability within the meaning of the FHAA;
and (2) that Defendants knew or reasonably should have known of their disability. Rather,
Defendants argue that Plaintiffs cannot meet the third and fourth elements, i.e., Plaintiffs cannot
show that (3) their requested accommodation is necessary to afford an equal opportunity to use
and enjoy their dwelling and (4) their requested accommodation is reasonable.
C. There is no genuine issue of material fact with respect to the element of necessity.

The FHAA only requires a building owner or manager to make those accommodations
that are “necessary” to give a person with a handicap an “equal opportunity to use and enjoy a
dwelling.” Davis v. Echo Valley Condo. Ass’n, 945 F.3d 483, 490 (6th Cir. 2019). “[T]he law
does not require more or better opportunities for those with handicaps as compared to those
without.” Id., quoting Cinnamon Hills Youth Crisis Ctr. v. St. George City, 685 F.3d 917, 923
(10th Cir. 2012) (emphasis in original, internal quotation marks omitted).
When analyzing whether an accommodation is required under this Act, the three operative
elements are “reasonable,” “equal opportunity” and “necessary.” See Smith, 102 F.3d at
794. . . .In order to prove that an accommodation is “necessary,” “[p]laintiffs must show
that, but for the accommodation, they likely will be denied an equal opportunity to enjoy
the housing of their choice.” Id. (citing Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.1995).

Howard v. City of Beavercreek, 276 F.3d 802, 806 (6th Cir. 2002) (quoting Smith & Lee Assocs.,
Inc. v. City of Taylor, Mich., 102 F.3d 781, 794 (6th Cir. 1996)).
In order to be necessary, an accommodation must be needed, not merely desired, by the
plaintiff seeking an accommodation. It must also be effective in ameliorating the effects of the
plaintiff’s disability. See Howard, 276 F.3d at 806 (“[T]he concept of necessity requires at a
minimum the showing that the desired accommodation will affirmatively enhance a disabled
plaintiff’s quality of life by ameliorating the effects of the disability[,]” quoting Bronk v.
Ineichen, 54 F.3d 425, 429 (7th Cir. 1995)).
Defendants argue that Plaintiffs cannot demonstrate that their requested accommodation
is necessary, i.e., that, without it, they likely will be denied an equal opportunity to enjoy the
housing of their choice. Doc. 42, p. 19. They assert that Plaintiffs cannot show that their
requested accommodation would ameliorate the effects of their disabilities. Id. Plaintiffs
respond that their “ability to use and enjoy grilling as their neighbors can is dependent on using
their patios to do so, since they can only use the pavilion grills with substantial and constant pain
(in the case of Phillips) and with the risk of being unable to walk but a few steps, if any, (in the
case of Weiss).” Doc. 49, p. 26 (emphasis in original).
1. Analysis as to Plaintiff Phillips
Defendants are entitled to summary judgment on Phillips’ FHAA and related Ohio law
claims because Phillips’ request to have a grill on her patio does not meet the test of necessity
and, in any event, Defendants have offered her a reasonable accommodation.
First, Phillips has not shown that she is unable to walk to the common grilling area such
that having a grill on her patio is a necessary accommodation. While she states that she
“seldom” walks to the common grilling area because it causes pain (Doc. 49-16, p. 2, ¶13), she
also experiences pain when walking to the pool, which is adjacent to the grilling pavilion, but she

acknowledges that she walks to the pool frequently (almost daily during the summer months)
nevertheless. Id. In other words, Phillips can walk the distance to the grilling pavilion, the same
distance as to the pool, but she prefers not to. Thus, there is no genuine issue of material fact
concerning whether it is necessary for Phillips to have a personal grill on her patio. Having a
personal grill is not necessary because her Declaration and testimony establish that she is fully
capable of walking the distance from her unit to the grilling pavilion.
Phillips’ doctor did not state that she could not walk the distance to the common grilling
area. Rather, he noted that she has “difficulty walking prolonged distances without a cane” and
“difficulty walking prolonged distances with a cane and while carrying food and supplies for
outdoor cooking.” Doc. 42-7. He suggested two alternative accommodations, stating that

Phillips would “benefit from having outdoor cooking equipment nearer to her living quarters or
have some method of carrying food and supplies to the current outdoor cooking facility.” Doc.
42-7 (emphasis supplied). ACGAI offered Phillips the second of the two accommodations
suggested by her physician, i.e., assistance with carrying food and supplies to the common
grilling area.
While Phillips rejects AGCAI’s proffered accommodation, preferring to have a personal
grill on her patio, her preference doesn’t entitle her to that accommodation under the FHAA.
What AGCAI offered was a reasonable accommodation under the FHAA. See, e.g.,
Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d 100, 113 (3d Cir. 2018) (resident’s
preference to keep her walker in the lobby was not “necessary” in light of alternative provided by
the defendant association that she call when she wanted it and a staff member would bring it to
her. The Vorchheimer court explained: “[T]he Act guarantees her only a ‘reasonable
accommodation’ that satisfies her needs, not the particular accommodation that she wanted[.]”).

See also United States v. Trumbull Metro. Housing Auth., 2018 WL 2183265, at *5 (N.D.Ohio
May 10, 2018) (plaintiffs’ desire for a separate room for dialysis treatment and a separate room
for a child with a learning disability failed because medical evidence did not indicate these
accommodations were necessary to accommodate their disabilities); Gavin v. Spring Ridge
Conservancy, 934 F.Supp. 685, 687 (D. Md. 1995) (“the statute does not talk in terms of
accommodations and/or modifications that are simply convenient . . . .”).
Accordingly, Phillips has failed to show that there is a genuine issue of material fact on
the required element of necessity and Defendants are entitled to summary judgment on her
FHAA and RC 4112.02 claims. Matsushita Elec. Indus. Co., 475 U.S. at 587.
2. Analysis as to Plaintiff Weiss

Defendants are also entitled to summary judgment on Weiss’s FHAA and related Ohio
law claims because, like Phillips, Weiss has not shown that there is a genuine issue of material
fact regarding whether it is necessary for him to have a personal gas grill on his patio.
Weiss’s Declaration and deposition testimony, described above, establish that he
generally is able to walk the distance to the grilling pavilion, which is the same as the distance to
his parking space. However, he states that he periodically has episodes of extreme exhaustion
that make him “too weak to even walk except for a few steps in my apartment. . . .” Doc. 49-2,
p. 3, ¶12. On days when Weiss is not suffering such a periodic episode, a personal grill clearly is
not necessary because he can walk to the grilling pavilion. And, on the days when he is
experiencing extreme exhaustion and can only walk a few steps within his unit, a personal grill is
not necessary because it would not ameliorate the effects of his disability. Weiss would keep the
grill a minimum of 10 feet from the exterior of his unit in order to comply with the Ohio and
Lyndhurst fire codes. See, e.g., Doc. 1-2, pp. 13-14, ¶44 (Complaint); Doc. 42-5, p. 12 (Weiss’s

letter to the Board in which he asserts that he would use his grill in compliance with the Ohio
and Lyndhurst fire codes, including placing the grill the required distance from the building
exterior); Doc. 49-21 (Ohio and Lyndhurst fire codes). Having a grill on his patio would not
ameliorate the effects of Weiss’s disability when he is experiencing extreme exhaustion because
he could not walk the distance to the grill. See Howard, 276 F.3d at 806 (“[T]he concept of
necessity requires at a minimum the showing that the desired accommodation will affirmatively
enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.”);
Hollis, 760 F.3d at 541 (“The necessity element is, in other words, a causation inquiry that
examines whether the requested accommodation or modification would redress injuries that
otherwise would prevent a disabled resident from receiving the same enjoyment from the
property as a non-disabled person would receive.”).17

There is no genuine issue of material fact regarding whether Weiss’s having a personal
grill on his patio is necessary. It is not under the evidence provided by Weiss himself.

17 The letter from Weiss’s doctor, which states that his cancer and CVID substantially affect his ability to walk does
not create a genuine issue of material fact in light of Weiss’s more detailed description in his Declaration and
deposition testimony of the precise effects of his medical conditions on his ability to walk.
III.Conclusion
In summary, Plaintiffs’ evidence does not create a genuine issue of material fact on the
required element of necessity. Therefore, Defendants are entitled to judgment on Plaintiffs’
claims under the FHAA and R.C. § 4112.02. The Court does not reach the issue whether

Plaintiffs’ requested accommodation is reasonable.
For the reasons state above, Defendants’ Motion for Summary Judgment (Doc. 42) is
GRANTED.

IT IS SO ORDERED.
Dated: October 7, 2020 /s/Kathleen B. Burke
Kathleen B. Burke
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10368816. Public record. Not legal advice.