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Developmentally Disabled Women LAKE WORTH (May 25, 2007)—Attorney Cathy Lively today filed a lawsuit against the Normandy Isles Homeowners’ Association, Inc. as well as Banyan Property Management, Inc. in an attempt to stop both parties from evicting five women with developmental disabilities from a group home. The lawsuit was filed in Circuit Civil Court on behalf of Helpers International, the corporate entity that is running the home located on Salmon Isles in Normandy Isles, Greenacres. The Normandy Isles Homeowners Association as well as Banyan Property Management, Inc. are evicting the women, because they claim Helpers International is running a business, a violation of the Normandy Isles H.O.A. documents. However, the Florida Fair Housing Act provides that a group home of 4-6 developmentally disabled residents is not a business but deemed a “single-family residence.” “The homeowners’ association is trying to use every possible mechanism to evict these women,” said attorney Cathy Lively. “The women have been diagnosed with conditions that meet the definitions of “developmentally disabled” and are protected under Federal and State Law. The women are bothering no one, and they’re protected by the Florida Fair Housing Act. What these two entities are doing to them is unconscionable and illegal.” The lawsuit seeks injunctive relief so that the women can live in peace. In response to a separate action filed by Normandy Isle Homeowners Association against Grant, the owner of the property, .Lively has also filed a counter claim and Motion for Summary Judgment in Palm Beach County Court. Each of the five (5) developmentally disabled residents plans to file a complaint against both Normandy Isles Homeowners Association, Inc. and Banyan Property Management, Inc. with the Florida Commission on Human Relations. The Grants and the residents will be celebrating Memorial Day with a picnic at the residence, the Press is invited to attend. Please contact the Law Office of Cathy Lively at 561-649-2204 or Evroy Grant at 561-389-9325.In addition, interviews with some of the group home’s residents, Evroy Grant, Sharon Grant, and Cathy Lively are available upon request.
DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT The
Defendant, Evroy Grant, by and through the undersigned counsel and pursuant to
Rule 1.510 of the Florida Rules of Civil Procedure
files this, his Motion for Summary Judgment and in support thereof
states: STATEMENT OF FACTS 1 The Plaintiff, Normandy Isles Homeowners Association, Inc. sued Evroy Grant for Breach of Covenant and for Injunction. 2 The Plaintiff is seeking to enjoin the Defendant from renting his real property to developmentally disabled individuals residing in a group home. 3 In the Complaint, the Plaintiff alleges in paragraphs 2- 9 the following: [3]
Defendant is a member of NORMANDY ISLES and as such is subject to and must
abide by the covenants of record, including the articles of Incorporation, the
Declaration of Restrictions, the By-Laws and the Rules and Regulations of
Normandy Isles. [7]
The Defendant is operation a business out of her [sic]
home at 1056 Salmon Isle,
[8] The Declaration of Restrictions for Normandy Isles, proves at Article XII,
Prohibited Uses, Section 8, as follows:
“Each at
Section 13, as follows: “No
person shall use a at
Section 10, as follows: “No
nuisance shall be allowed upon any at section 11, as follows: “No
immoral, improper, offensive or unlawful use shall be made of any Lot and all
valid laws, zoning ordinances and regulations of all governmental bodies
having jurisdiction shall be strictly observed.” [9]
Defendant, GRANT, breached the aforementioned Normandy Isles covenants of record
by operating a business out of her [sic] home. 1
Five developmentally disabled persons
reside in the residence located at 1056 Salmon Isle, Florida
Statute §419.001(2) provides that, “Homes of six or fewer residents which otherwise meet the definition of a community residential home shall be deemed a single-family unit and a noncommercial, residential use for the purpose of local laws and ordinances. Homes of six or fewer residents which otherwise meet the definition of a community residential home shall be allowed in single-family or multifamily zoning without approval by the local government, provided that such homes shall not be located within a radius of 1,000 feet of another existing such home with six or fewer residents. Such homes with six or fewer residents shall not be required to comply with the notification provisions of this section; provided that, prior to licensure, the sponsoring agency provides the local government with the most recently published data compiled from the licensing entities that identifies all community residential homes within the jurisdictional limits of the local government in which the proposed site is to be located in order to show that no other community residential home is within a radius of 1,000 feet of the proposed home with six or fewer residents. At the time of home occupancy, the sponsoring agency must notify the local government that the home is licensed by the licensing entity.” (Emphasis added). 1
Florida Statute §760.23(7)(b)
provides.
It is unlawful to discriminate in the sale or rental of, or to
otherwise make unavailable or deny, a dwelling to any buyer or renter because
of a handicap of a person residing in or intending to reside in that dwelling
after it is sold, rented, or made available.
2
Florida Statute § 760.23(9)(b)
provides, that discrimination 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.
(Emphasis added). 3
760.22(7) defines "Handicap"
as [1]
Developmental disability" means a disorder or syndrome that is
attributable to retardation, cerebral palsy, autism, spina bifida, or
Prader-Willi syndrome; that manifests before the age of 18; and that
constitutes a substantial handicap that can reasonably be expected to
continue indefinitely. 393.063(9).
STANDARD
FOR SUMMARY JUDGMENT Summary
Judgment is proper when no genuine issue of material fact exists, and the
moving party is entitled to judgment as a matter of law.
Maldonado v. Publix Supermarkets, 939 So.2d 290 (
Summary judgment is proper in the instant case because the facts
are indisputable, and when applied to the applicable law, overwhelmingly
favor the defendants. Furthermore,
no genuine issue of material fact exists that would prevent the
entry of summary judgment. Therefore,
the Defendant requests an entry of Summary Judgment in his favor.
ARGUMENT Florida
Statute provides clear guidance in this instance and support an entry of
Summary Judgment in favor of the Defendant. Homes of six or less residents
which otherwise meet the definition of a community residential home are
deemed a single-family unit and a noncommercial, residential use for the
purpose of local laws and ordinances. Five
developmentally disabled persons reside in GRANT’s home.
That home is located within Normandy Isles and thus is normally
subject to the rules of the Normandy Isles Homeowner’s Association.
However, pursuant to
Florida Statute §419.001(2), GRANT’S residence is deemed a
single-family residential unit. Thus,
NORMANDY ISLES cannot successfully claim that GRANT is using his home in a
commercial or business fashion. Enforcing
private restrictive covenants against homes for the developmentally
disabled, when those homes are considered single-family residential units
under §419.001(2), is a form of unlawful discrimination that is
prohibited by § 760.23(7). Dornbach
v. Holley, 854 So.2d 211 (Fla.2d DCA 2002). Directly
on point is Dornbach v. Holley, where the defendants owned
residential real property in a subdivision known as Lake Thomas Woods.
Dornbach v. Holley, 854 So.2d 211 (Fla.2d DCA 2002).
The defendants leased their property to Res-Care Florida, Inc., for
use as a community residential group home pursuant to chapter 419 of the
Florida Statutes. 1)
Each lot shall be used expressly and exclusively for single-family,
private residence
purposes.
2) No business activity shall be conducted or carried on in
connection with the residential
usage of any lot or parcel. In
that case, the court held that enforcing private deed restrictions against
a group home for four to six developmentally disabled adults was
“impermissibly discriminatory” and in violation of state law.
1)
“Each 2)
“No nuisance shall be allowed upon any
annoyance to other Owners or interferes with the peaceful
possession and proper use of
the Lots by the Owners thereof..”
This Court, like the court in Dornbach, must rule in favor
of the Defendant, EVROY GRANT, because the Defendant’s activities are
not considered a business for purposes of Florida Statute.
A group home for the developmentally disabled is protected under
the Florida Fair Housing Act and the public policy considerations set
forth in Florida Statute. NORMANDY
ISLES’s action to enforce the deed restrictions against the Defendant,
EVROY GRANT, would result in either intentional or incidental
discrimination towards handicapped persons.
Dornbach at 213. This
is because discrimination under § 760.23(7) can also occur if, as
detailed under Florida Statute §760.23(9)(b), anyone refuses to make
reasonable accommodations in rule, policies, practice, or services, when
such accommodations are necessary to ensure such person an equal
opportunity to use and enjoy a dwelling.
“Handicap” is defined by §760.22(7) to include those with
mental and physical impairments or a developmental disability, as detailed
above. Just as the court in Dornbach
held that enforcing restrictive covenants against homes for the
developmentally disabled that are considered noncommercial, single-family
residences is “impermissible discrimination,” this Court should hold
likewise. This is because
NORMANDY ISLES, by refusing to reasonably accommodate Defendant GRANT’s
home, is failing to ensure that the handicapped, developmentally disabled
people who live there have an equal opportunity to use that dwelling. Furthermore,
this Court should rule in favor of the Defendant, EVROY GRANT, because the
group home is not an annoyance or nuisance.
In Baldwin v. Nature’s Hideaway Homeowner’s Association, Inc.,
the Court held that “merely engaging in an ‘occupation’ without more
is not a violation of the deed restrictions.”
613 So.2d 1376, 18 Wherefore, the Defendant, Evroy Grant respectfully request that this Court grant his Motion for Summary Judgment. The Defendant also seeks attorney’s fees and cost available under Florida Statute § 720. CERTIFICATE
OF SERVICE I
hereby certify that a true and correct copy of the foregoing has been
furnished by U.S. Mail to Victoria Morton, Esquire, Hilley &
Wyant-Coretez, P.A.860 US Highway 1, Suite 108 North Palm Beach, Florida
33408 this 16 day of May 2007.
CATHY L. PURVIS LIVELY, ESQUIRE, P.A.
3900 Woodlake Boulevard
Phone:
(561) 649-2204
Fax: (561) 649-8335
______________________
Cathy Purvis Lively, Esquire
COUNTER
CLAIM The
Defendant/Counter-claimant, Evory Grant files this Counterclaim and sues the
Plaintiff/Counter-defendant Normandy Isles Homeowners’ Association, Inc. for
Declaratory Relief, Injunctive Relief, and Breach of Good Faith and Fair
Dealing. GENERAL
ALLEGATIONS 1 This is an action for Declaratory Relief, Injunctive Relief and for damages that exceed ($15,000). 2 EVROY GRANT is an individual, over the age of eighteen (18) and at all times relevant hereto, a resident of Palm Beach County, Florida. 3 EVROY GRANT is the owner of real property located at 1056 Salmon Isle, Greenacres, FL 33413. 4 Normandy Isles Homeowners’ Association, Inc., (hereinafter “NORMANDY”) is a Florida Corporation doing business in Palm Beach County, Florida, organized under Florida Statute, Chapter 720. 5 At all times relevant hereto GRANT rented his real property located at 1056 Salmon Isle, Greenacres, FL 33413 to certain individuals who are protected under Florida Statute §760.22(7)(b). 6 At all times relevant hereto, the tenants (hereinafter “TENANTS”) of 1056 Salmon Isle, Greenacres, FL 33413 were developmentally disabled adults protected under Florida Statue. 7 NORMANDY has sought to cause the removal of the TENANTS from 1056 Salmon Isle, Greenacres, FL 33413. 8 On or about August 28, 2006, NORMANDY filed a law suit against GRANT seeking to enjoin GRANT from renting his real property to persons who are statutorily protected by State and Federal Law. 9 In the Complaint, Normandy alleges that “The Defendant is operating a business out of her [sic] home at 1056 Salmon Isle, Greenaacrs, FL 33413. It is Plaintiff’s information and belief that Defendant is running a group home or room rental/boarding house business out of the home.” (Emphasis added). 10 Enforcement of NORMANDY’s restrictive covenants against this group of four to six developmentally disabled adults results in incidental discrimination and is a refusal to offer reasonable accommodations. 1 Florida Statute §419.001(2) provides that,
“Homes of six or fewer residents which otherwise meet the definition of a community residential home shall be deemed a single-family unit and a noncommercial, residential use for the purpose of local laws and ordinances. Homes of six or fewer residents which otherwise meet the definition of a community residential home shall be allowed in single-family or multifamily zoning without approval by the local government, provided that such homes shall not be located within a radius of 1,000 feet of another existing such home with six or fewer residents. Such homes with six or fewer residents shall not be required to comply with the notification provisions of this section; provided that, prior to licensure, the sponsoring agency provides the local government with the most recently published data compiled from the licensing entities that identifies all community residential homes within the jurisdictional limits of the local government in which the proposed site is to be located in order to show that no other community residential home is within a radius of 1,000 feet of the proposed home with six or fewer residents. At the time of home occupancy, the sponsoring agency must notify the local government that the home is licensed by the licensing entity.” (Emphasis added).
1 Florida Statute §760.23(7)(b) provides. It is unlawful to discriminate in the sale or rental of, or to otherwise make unavailable or deny a dwelling to any buyer or renter because of a handicap of a person residing in or intending to reside in that dwelling after it is sold, rented, or made available. 2 Florida Statute § 760.23(9)(b) provides, that discrimination 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. (Emphasis added). 3 760.22(7) defines "Handicap" as [1]
Developmental disability" means a
disorder or syndrome that is attributable to retardation, cerebral palsy,
autism, spina bifida, or Prader-Willi syndrome; that manifests before the
age of 18; and that constitutes a substantial handicap that can reasonably
be expected to continue indefinitely. 393.063(9). 5 Public policy supports the position that the “group home” is the functional equivalent of a single-family residential unit. 6 The enforcement of the deed restrictions and/or restrictive covenants by NORMANDY is impermissibly discriminatory. 7 NORMANDY’s refusal to waive the deed restrictions and/or restrictive covenants in this instance amounts to a refusal to offer reasonable accommodations to developmentally disabled individuals. 8 By virtue of his ownership of the real property as set forth above GRANT is a member of NORMANDY. 9 Florida Statute §720.305 provides in pertinent part, that: “Each
member and the member's tenants, guests, and invitees, and each
association, are governed by, and must comply with, this chapter, the
governing documents of the community, and the rules of the association.
Actions at law or in equity, or both, to redress alleged failure or
refusal to comply with these provisions may be brought by the association
or by any member against: a The association;
1 GRANT, as member of NORMANDY, brings this action against NORMANDY pursuant to Florida Statute §720.305. 2 Pursuant to Florida Statute §720.305, the prevailing party in any such litigation is entitled to recover reasonable attorney's fees and costs. 3 All conditions precedent to filing this action have been met, excused, or waived.
COUNT I 1 GRANT re-alleges each and every allegation contained in paragraphs 1 through 23 of the General Allegations and further alleges: 2 This is an action for Declaratory Relief, as between GRANT and NORMANDY under sections §§86.011 et seq., Florida Statutes. 3 Despite the express language of Florida Statute and Federal Statute, as set forth herein, NORMANDY has repeatedly attempted to enforce its deed restrictions and/or restrictive covenants against GRANT in violation of Federal and State law. 4 The actions of NORMANDY are a clear attempt to circumvent the applicable Federal and State Law. 5 There is a genuine controversy between GRANT and NORMANDY as to whether GRANT’s TENANTS who reside at 1056 Salmon Isle, Greenacres, FL 33413 are protected under Federal and State Law. 6 There is a genuine controversy between GRANT and NORMANDY as to whether the actions of NORMANDY, in attempting to enforce its deed restrictions and restrictive covenants are in violation of Federal and State Law. 7 There is a genuine controversy between GRANT and NORMANDY as to whether the actions of NORMANDY, in attempting to enforce its deed restrictions and restrictive covenants are impermissibly discriminatory. 8 GRANT has been forced to incur fees and costs for which NORMANDY should be responsible. a Declare that GRANT’s TENANTS residing at 1056 Salmon Isle are protected under Federal and State Law. b Declare that NORMANDY’s actions in attempting to enforce its deed restrictions and/or restrictive convents as set forth herein are in violation of Federal and State Law. c Declare that Normandy’s action in attempting to enforce its deed restrictions and/or restrictive convents as set forth herein are impermissibly discriminatory. d Award GRANT his attorney fees and costs; e Grant any other relief deemed fair and just. COUNT
II INJUNCTIVE
RELIEF 100 GRANT re-alleges each and every allegation contained in paragraphs 1 through 23 of the of the General Allegations and further alleges: 101 GRANT sues NORMANDY for Injunctive Relief. 102 NORMANDY is attempting to enforce its restrictive covenants and/or deed restrictions against GRANT and the TENANTS in an effort to force GRANT to remove the TENANTS in direct violation of Federal and State law. 103 NORMANDY is attempting to enforce its restrictive covenants and/or deed restrictions against GRANT and the TENANTS in an effort to prevent GRANT from renting his real property to the TENANTS thus refusing to offer reasonable accommodations to the disabled TENANTS. 104 NORMANDY is attempting to enforce its restrictive covenants and/or deed restrictions against GRANT and the TENANTS in violation of Federal and State Law. 105 There is no adequate remedy at law and GRANT and his TENANTS will be irreparably harmed by the actions of NORMANDY if an injunction is not issued. 106 Public interest will be served by the entry of an injunction in that public policy dictates that there is no justification as to the enforcement of the deed restrictions and/or restrictive covenants. 107 Public interest will be served by the entry of an injunction in that the actions of NORMANDY amount to a refusal to offer reasonable accommodations to GRANT’s disabled TENANTS which is impermissibly discriminatory and in violation public policy. 108. GRANT has been forced to incur fees and costs for which NORMANDY should be responsible. a Enjoin NORMANDY from attempting to enforce restrictive convents and or deed restrictions as to the group home b Enjoin NORMANDY from attempting to evict the TENANTS residing in GRANT’s property; c Enjoin NORMANDY from enforcing its deed restrictions and or restrictive covenants in violation which violate Federal and State Law; d Enjoin NORMANDY from taking further action that amounts to a refusal to offer reasonable accommodations to the disabled tenants; e Award GRANT his attorney fees and costs; and f Grant any other relief deemed fair and just. COUNT
III INJUNCTIVE
RELIEF 109 GRANT re-alleges each and every allegation contained in paragraphs 1 through 23 of the of the General Allegations and further allege: 110 GRANT sues NORMANDY for Mandatory Injunctive Relief. 111 NORMANDY is attempting to enforce its restrictive covenants and/or deed restrictions against GRANT and the TENANTS in an effort to force GRANT to remove the TENANTS in direct violation of Federal and State Law. 112 NORMANDY has intentionally attempted and continues to attempt to enforce its restrictive covenants and/or deed restrictions against GRANT and the TENANTS in an effort to prevent GRANT from renting his real property to the TENANTS thus refusing to offer reasonable accommodations to the disabled individuals residing in GRANT’s residence. 113 NORMANDY is attempting to enforce its restrictive covenants and/or deed restrictions against GRANT and the TENANTS in violation of Federal and State Law. 114 NORMANDY has refused to waive the deed restrictions and/or restrictive covenants as to GRANT’s rental to the developmentally disabled individuals as thereby refusing to offer reasonable accommodations to the disabled TENANTS. 115 Public interest is served by requiring NORMANDY to waive its deed restrictions and/or restrictive covenants as to the “group home” in that public policy dictates said waiver to avoid discrimination against the TENANTS. 116 The public interest is served by requiring NORMANDY to comply with the applicable Federal and State Laws related to GRANT’s rental of his home to the TENANTS. 117. GRANT has been forced to incur fees and costs for which NORMANDY should be responsible. a Order that NORMANDY waive its deed restrictions and/or restrictive convents that prevent GRANT from renting to the developmentally disabled indivual; b Order that NORMANDY comply with the applicable Federal and State law related to a group home; c Award GRANT his attorney fees and costs; and d Grant any other relief deemed fair and just. COUNT
IV BREACH
OF GOOD FAITH AND FAIR DEALING 118 GRANT re-alleges each and every allegation contained in paragraphs 1 through 23 of the of the General Allegations and further alleges: 119 GRANT sues NORMANDY for Breach of Implied Covenant of Good Faith & Fair Dealing. 120 GRANT and NORMANDY are parties to a written contract, to wit, the association documents. 121 NORMANDY owes to GRANT a duty of good faith and fair dealing in the performance and enforcement of their duties arising out of the Association documents in accordance with Federal and State Law. 122 As set forth more fully herein, NORMANDY breached the implied covenant of good faith and fair dealing toward GRANT by, but not limited to, the following: a actively participating in the actions as complained of herein; b permitting the actions as complained of herein to take place and taking no a Attempting to enforce restrictive covenants against GRANT and the TENANTS in violation of State and Federal law. 118 NORMANDY’s breach as set forth herein deprived GRANT of the benefit of the Agreement, to wit, the association documents. 119 NORMANDY by its conscious and deliberate actions and inactions, failed or refused to discharge its contractual responsibilities, and thereby unfairly frustrated the purpose of the association documents and disappointed GRANT’s expectations. 120 The acts of NORMANDY as alleged herein, were committed willfully and recklessly by NORMANDY. 121 The acts, both retaliatory and otherwise, were done knowingly, willfully, and with malicious intent, and thereby GRANT is entitled to damages in an amount to be determined by proof at trial. 122 As a direct and proximate result of NORMANDY’s breach, as set forth herein, GRANT has suffered damages. 123 NORMANDY’s acts were done knowingly, willfully, and with malicious intent, and thereby PLAINTIFFS are entitled to damages in an amount to be determined by proof at trial. 124 As a direct and proximate result of NORMANDY’s actions as set forth herein, GRANT suffered damages. a GRANT be awarded damages; b GRANT be awarded fees and costs in this action; c That the Court grant any other relief deemed fair and just. THE
STATE OF COUNTY
OF BEFORE
ME, the undersigned authority, personally appeared, EVROY GRANT, who has
produced
EVROY
GRANT SWORN
to and SUBSCRIBED before me this day
of _____, 2007.
Notary
Public, State of My
Commission Expires
Cathy
L. Purvis Lively, Esquire, P.A.
(561) 649-2204 ______________________________ Cathy
L. Purvis Lively, Esquire Florida Bar No.: 0055395 |
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