Telesca v. Village of Kings Creek Condominium Ass'n , 390 F. App'x 877 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13910 ELEVENTH CIRCUIT
AUGUST 2, 2010
________________________
JOHN LEY
CLERK
D. C. Docket No. 08-21377-CV-JLK
VIRGINA TELESCA,
MICHAEL TELESCA,
MARIA TELESCA,
WILLIAM CHIARELLO,
Plaintiffs-Appellants,
versus
THE VILLAGE OF KINGS CREEK
CONDOMINIUM ASSOCIATION, INC.,
MIREYA VILLAVERDE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 2, 2010)
Before BLACK, WILSON and COX, Circuit Judges.
PER CURIAM:
Virginia Telesca, Michael Telesca, Maria Telesca, and William Chiarello,
Appellants, filed a discrimination and retaliation suit against The Village of Kings
Creek Condominium Association (“VKC”) and Mireya Villaverde, VKC manager,
under the Federal Fair Housing Act (“FHA”), 42 U.S.C. §§ 3604(f)(2), 3617,
Florida Fair Housing Act, Fla. Stat. §§ 760.23(8), 760.37, and § 11A-12(1)(b) &
(r) of the Miami-Dade County Code of Ordinances.1 The district court granted
VKC’s motion to dismiss as to the discrimination claims because they were barred
by the statute of limitations and because the Telescas failed to establish standing.
The district court dismissed Appellants’ retaliation claim for lack of standing. We
find the district court erred in determining that the Telescas failed to establish
standing under the FHA. However, we affirm the district court’s order of dismissal
because the complaint failed to state a claim within the FHA’s statute of
limitations. As for Appellants’ retaliation claim, we affirm the district court’s
dismissal on alternative grounds.
I. BACKGROUND
1
The Florida Fair Housing Act, Fla. Stat. §§ 760.23(8), 760.37 are substantially identical
to the Federal Fair Housing Act, 42 U.S.C. §§ 3604(f)(2), 3617. Loren v. Sasser, 309 F.3d 1296,
1299 n.9 (11th Cir. 2002). Section 11A-12(1)(b) & (r) of the Miami-Dade County Code of
Ordinances is also substantially identical to the Federal Fair Housing Act, §§ 3604(f)(2), 3617.
2
Virginia and Michael Telesca reside in Massapequa Park, New York and
own a condominium unit at VKC in Kendall, Florida. The VKC unit has served as
their second home for more than fifteen years. VKC has several handicap parking
spaces throughout the parking lot that are available on a first-come-first-serve
basis. According to Appellants, the handicap parking spaces are located a
considerable distance from their unit.
Virginia and Michael Telesca’s health declined, and they requested that
VKC assign them a parking space close to their unit. VKC denied their request in
2004 because the policy at VKC was that all parking spaces were unassigned.
Appellants renewed their request for an assigned parking space in 2005, however,
VKC again denied the request and found that the available handicap spaces were a
reasonable accommodation. Then, on February 12, 2007, the Telescas once again
requested an assigned parking space closer to their unit and VKC denied the
request. Michael and Virginia Telesca’s health problems have made it difficult for
them to visit their VKC unit since 2004. They allege that VKC’s failure to assign
them a parking space has prevented them from visiting their VKC unit.
The Telescas filed their initial complaint on May 12, 2008 alleging that
VKC’s denial of their requests for an assigned parking space constituted
harassment, retaliation, and discrimination in violation of the FHA, the Florida Fair
3
Housing Act, and § 11A-12(1) of the Miami-Dade County Code of Ordinances.
The district court dismissed the complaint with leave to amend because the
Telescas did not plead a particularized injury in their complaint. Appellants filed
their second amended complaint on January 14, 2009. The second amended
complaint added Chiarello as a plaintiff. The second amended complaint alleged:
(1) that VKC discriminated against Appellants on the basis of their handicap, in
violation of the FHA, the Florida Fair Housing Act, and § 11A-12(1) of the Miami-
Dade County Code of Ordinances; and (2) that VKC retaliated against “the
Plaintiffs” due to “the Plaintiffs’” exercise of their rights under the FHA, the
Florida Fair Housing Act, and § 11A-12(1) of the Miami-Dade County Code of
Ordinances.
The district court granted VKC’s motion to dismiss Appellants’ second
amended complaint. The district court found that Appellants had failed to plead a
particularized injury that fell within the two year statute of limitations. The only
specific injury that Appellants stated in their amended complaint was an incident
that occurred in 2005 when Maria Telesca visited her VKC unit. Ms. Telesca was
unable to find an available handicap parking space and parked in a resident parking
space, which resulted in her car being towed. The district court found that this
incident fell outside the two year statute of limitations. Furthermore, the district
4
court ruled that the Telescas did not satisfy the “standing requirements for claims
arising under the FHA.” Doc. 41 at 4. It was the opinion of the district court that
the FHA was not intended to create a cause of action for properties that were not
one’s full-time residence.
II. STANDARD OF REVIEW
“We review the grant of a motion to dismiss under Rule 12(b)(6) for failure
to state a claim de novo, accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff. The interpretation of a
statute is a purely legal matter and therefore subject to the de novo standard of
review.” Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009)
(citations and quotation omitted).
III. DISCUSSION
The FHA prohibits discrimination “in the provision of services or facilities
in connection with [a] dwelling, because of a handicap.” 42 U.S.C. § 3604(f)(2).
Discrimination under this section of the FHA includes “a refusal to permit, at the
expense of the handicapped person, reasonable modifications of existing premises
occupied or to be occupied by such person if such modifications may be necessary
to afford such person full enjoyment of the premises.” Id. § 3604(f)(3)(A).
Discrimination also includes “a refusal to make reasonable accommodations in
5
rules, policies, practices, or services, when such accommodations may be
necessary to afford such person equal opportunity to use and enjoy a dwelling.”
Id. § 3604(f)(3)(B).
A. The Telescas Have Standing under the Federal Fair Housing Act2
“[T]he only requirement for standing to sue under [the FHA] is the Art. III
requirement of injury in fact.” Havens Realty Corp. v. Coleman, 455 U.S. 363,
376, 102 S. Ct. 1114, 1122 (1982). There are three elements to Article III
standing.
“First, the plaintiff must have suffered an injury in fact— an invasion
of a legally protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical. Second,
there must be a causal connection between the injury and the conduct
complained of— the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent action of
some third party not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed by a
favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136
(1992) (alterations omitted) (internal citations and quotations omitted).
2
Appellants’ second amended complaint alleged that Chiarello was an aggrieved party for
the purposes of the discrimination claim. The district court’s order of dismissal seems to ignore
Chiarello’s claim under the FHA’s anti-discrimination provision and focuses only on the
Telescas’ standing to bring a discrimination claim under the FHA.
Appellants’ second amended complaint does not plead facts sufficient to show that
Chiarello was discriminated against on the basis of his own handicap or the handicap of any
person he was associated with. See 42 U.S.C. § 3604(f)(2)(A) & (C). Therefore, our finding
that the Telescas have standing to bring a discrimination claim under the FHA does not extend to
Chiarello.
6
The district court ruled that “while it may be a reasonable accommodation to
provide a full-time resident with a reserved parking space, it is not a reasonable
accommodation to provide one to someone who only visits once per year.” Doc.
41 at 6. In other words, the Telescas lacked standing to bring a claim under the
FHA because their VKC unit was not their permanent residence.
The FHA explicitly states that it creates a cause of action for owners of a
dwelling. 42 U.S.C. § 3604. The FHA defines a dwelling as “any building,
structure, or portion thereof which is occupied as, or designed or intended for
occupancy as, a residence by one or more families.” Id. § 3602(b). In Schwarz v.
City of Treasure Island, 544 F.3d 1201, 1214 (11th Cir. 2008), we noted that the
definition of dwelling relies on the undefined term “residence.” After examining
the plain meaning of residence, Schwarz concluded that “the administrative
definition of ‘dwelling unit’ suggests, the house, apartment, condominium, or co-
op that you live in is a ‘residence,’ but the hotel you stay in while vacationing at
Disney World is not.” Id.
Schwarz identified two relevant principles in determining whether a property
is a dwelling:
“(1) the more occupants treat a building like their home— e.g., cook
their own meals, clean their own rooms and maintain the premises, do
their own laundry, and spend free time together in common areas—
the more likely it is a ‘dwelling’; and (2) the longer the typical
7
occupant lives in a building, the more likely it is that the building is a
‘dwelling.’”
Id. at 1215. We concluded in Schwarz that a drug and alcohol treatment center was
a dwelling for the purposes of the FHA because the residents of the treatment
center stayed an “average [of] six to ten weeks— much longer than the one to two
day stays of most hotel guests,” and the residents had “common living areas, such
as kitchens and living rooms.” Id. at 1215–16. Our focus in Schwarz was not to
set a minimum time period which a resident must inhabit a property for it to attain
the status of a dwelling; rather, our analysis focused on whether the property was
distinguishable from a hotel room in such a way that it transformed from mere
lodging into the plaintiff’s home, regardless of whether it was their primary,
secondary, temporary, or permanent home.
There is no doubt that the Telescas alleged that the VKC unit at issue in this
case was a secondary home. The Telescas allege that they purchased the unit for
their own personal use, and that they used the unit accordingly on a regular basis
until 2005. The second amended complaint gives no indication that the VKC unit
was a mere investment property. We assume that the two-bedroom unit has
common living areas in which the Telescas spent their free time. Further, while
not indicated in the record, we believe it safe to assume that the Telescas took on a
variety of daily tasks, such as cooking and cleaning, while inhabiting the unit. The
8
fact that the Telecas’ unit was a secondary or vacation home does not divest them
of standing under the FHA.
B. Appellants’ Claim is Barred by the Statute of Limitations
Appellants did not, however, state an actual injury that was within the two
year statute of limitations of the FHA. 42 U.S.C. § 3613(a)(1)(A) (“An aggrieved
person may commence a civil action . . . not later than 2 years after the occurrence
or the termination of an alleged discriminatory housing practice”). The Telescas
filed their initial complaint on May 12, 2008, and the district court dismissed the
complaint with leave to amend. The district court specifically instructed the
Telescas that they must state a particular injury in order to have a cognizable claim
under the FHA. Appellants filed their second amended complaint on January 14,
2009. The second amended complaint contained a paragraph stating that “Maria
Telesca arrived at the complex to visit her unit in 2005 and attempted to park in the
designated handicapped parking spaces provided but all handicapped spaces were
occupied.” Doc. 32 at 4.
The FHA’s statute of limitations begins to run as soon as “facts supportive
of the cause of action are or should be apparent to a reasonably prudent person
similarly situated.” Wood v. Briarwinds Condo. Ass’n Bd. of Dirs., 11th Cir. 2010,
__ F. App’x __, at *3 (No. 09-12704, March 3, 2010) (per curiam) (citation and
9
quotation omitted). “A claim arising out of an injury which is ‘continuing’ only
because a putative plaintiff knowingly fails to seek relief is exactly the sort of
claim that Congress intended to bar by the . . . limitation period.” Roberts v.
Gadsden Mem’l Hosp., 850 F.2d 1549, 1550 (11th Cir. 1988) (per curiam).
The only specific injury alleged in Appellants’ second amended complaint
was an incident in 2005. Appellants were aware of VKC’s refusal to accommodate
their requests, and yet, they failed to file a claim under the FHA within the two
year statute of limitations. Therefore, Appellants’ claim of discrimination was
barred by the FHA’s two year statute of limitations.
C. Appellants’ Retaliation Claim Fails
Appellants’ second amended complaint accuses VKC of retaliation against
“the Plaintiffs.” The retaliatory acts alleged by Appellants were committed by
employees of VKC against Chiarello, Virginia and Michael Telesca’s grandson. In
their initial appellate brief, Appellants argue that both Chiarello and the Telescas
have standing to assert a retaliation claim.
42 U.S.C. § 3617 reads:
It shall be unlawful to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment 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.
10
Chiarello does not have standing to assert a retaliation claim. The plain
language of § 3617 only creates a cause of action for persons who are themselves
exercising a right under the Act or somehow aiding another in exercising their
rights under the FHA. Chiarello was not exercising any rights protected under the
FHA. Further, Appellants have not pleaded facts sufficient to show that Chiarello
did anything to aid or encourage the Telescas in their claims under the FHA.
In the alternative, Appellants’ initial brief argues that the Telescas have a
cause of action against VKC for retaliation. Under this theory, the harassment of
Chiarello results in the Telescas’ loss of enjoyment of the VKC unit because they
were denied the right to use their unit as they wished, i.e., allowing Chiarello to
live in the unit peacefully.
However, the second amended complaint did not plead either theory of
retaliation with sufficient particularity. In order to survive a motion to dismiss, a
complaint must provide “a short and plain statement of the claim showing that the
pleader is entitled to relief, in order to give the defendant fair notice of what the
claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 1964 (2007) (alteration omitted) (quotations and
citations omitted). “[A] plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
11
recitation of the elements of a cause of action will not do.” Id. at 555, 127 S. Ct. at
1964–65 (alteration omitted) (quotation marks omitted).
Appellants’ second amended complaint stated that VKC retaliated against
“the Plaintiffs.” The complaint does not state whether the retaliation claim is being
brought by the Telescas or Chiarello. As discussed above, the distinction is
important because Chiarello was not exercising any rights under the FHA, and he
would have to show that he was aiding the Telescas in their claim in order to have
standing to bring a retaliation claim. A retaliation claim brought by the Telescas
alleging that the actions committed against their grandson, Chiarello, is a wholly
different claim. The broad reference to “the Plaintiffs” is not sufficiently particular
to provide VKC with notice of the specific theory of retaliation with which
Appellants were proceeding.
IV. CONCLUSION
The Telesecas, as owners of a secondary home, have standing to bring a
claim against VKC under the FHA. However, the Telescas failed to state a claim
that fell within the FHA’s two year statute of limitations. Furthermore, the second
amended complaint did not plead a retaliation claim with a sufficient level of
clarity so as to give VKC adequate notice of the particular retaliation claim being
filed. Therefore, we find that the district court was proper in dismissing
12
Appellants’ complaint.
AFFIRMED.
13