Schalamar Creek Mobile Homeowners Association, Inc. v. Steven Adler

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13415
Non-Argument Calendar
________________________
D.C. Docket No. 8:19-cv-00291-TPB-AEP
SCHALAMAR CREEK MOBILE HOMEOWNER'S
ASSOCIATION, INC.,
on behalf of the homeowner members in its
representative capacity and on behalf of themselves
and others similarly situated,
SHERRY ATWOOD,
JAMES DRISKELL,
DON GLEDHILL,
LINDA GLEDHILL,
BARB GRIFFIN,
JOETTE KELLY,
CATHY LISKA,
Plaintiffs-Appellants,
PHIL FEATHERBAY,
Plaintiff,
versus
STEVEN ADLER,
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LORRAINE DEMARCO,
R. SCOTT PROVOST,
CHARLES CROOK,
MARTI NEWKIRK, et al.,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(May 7, 2021)
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
Schalamar Creek Mobile Homeowner’s Association, Inc. and seven residents
of Schalamar Creek Golf Mobile Home Park appeal the district court’s summary
judgment for the defendants, the owners and operators of the mobile home park, on
their claims that the defendants violated the Racketeer Influenced and Corrupt
Organizations Act and the Americans with Disabilities Act. The district court
granted summary judgment for Schalamar Creek’s owners and operators because the
residents and the homeowner’s association did not have standing to pursue their
claims. We agree with the district court that the residents did not have standing to
bring the RICO claims and affirm summary judgment for the owners and operators.
Although we disagree with the district court that the homeowner’s association did
not have standing to bring an Americans with Disabilities Act claim, we still affirm
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because there is no summary judgment evidence that the proposed modifications to
Schalamar Creek’s clubhouse were “readily achievable.”
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Schalamar Creek is a mobile home community located in Polk County,
Florida, designed for adults fifty-five or older. Like many mobile home parks,
Schalamar Creek offers amenities for its residents. It has a golf course, a driving
range, several pools, a lounge, and a clubhouse. The clubhouse, built in 1989, is a
three-story building with its own amenities. There is a restaurant on the first floor.
On the second floor, there is a large event space and a bank. The rent deposit box is
also located on the second floor. The third floor houses offices for Schalamar
Creek’s management. The golf course, driving range, restaurant, bank, and lounge
are open to the public.
Schalamar Creek is owned by Osprey Links, LLC, a subsidiary of
Northwestern Mutual Life Insurance Company. The park is operated and managed
by Murex Properties, LLC. Schalamar Creek’s residents are represented by the
homeowner’s association, which is authorized by statute to act as their representative
in matters relating to Schalamar Creek’s operations. See Fla. Stat. § 723.075(1)
(“[T]he association shall become the representative of all the mobile home owners
in all matters relating to this chapter, regardless of whether the homeowner is a
member of the association.”).
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In Florida, the Mobile Home Act governs the relationship between the
residents and the owners and operators of mobile home parks. See Fla. Stat. § 723,
et. seq. Schalamar Creek’s residents own their mobile homes, but pursuant to the
Act they lease the land beneath their homes from Schalamar Creek’s owners. As
required by the Act, these leases incorporate a prospectus—a disclosure document
that contains information about the rents and fees applicable to the property. See id.§ 723.012 (discussing the required contents of a prospectus). The prospectus also
“delineates the basis for, and the procedure governing, future rent increases.” See
Herrick v. Fla. Dep’t of Bus. Regul., Div. of Fla. Land Sales, Condos. & Mobile
Homes, 595 So. 2d 148, 152 (Fla. Dist. Ct. App. 1992) (explaining the purposes and
contents of a mobile home park prospectus). When someone buys a mobile home
from an existing resident, the Act gives him or her the right to assume the seller’s
existing lease and the applicable prospectus. Fla. Stat. § 723.059 (“The purchaser
of a mobile home who intends to become a resident of the mobile home park in
accordance with this section has the right to assume the remainder of the term of any
rental agreement then in effect between the mobile home park owner and the seller
and may assume the seller’s prospectus.”). It is this right that gives rise to this
appeal.
In 2019, the homeowner’s association and seven residents of Schalamar Creek
sued the owners and operators for violating RICO and the Americans with
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Disabilities Act. The residents alleged that the defendants acted as an “enterprise”
for the “shared common purpose of defrauding” the residents through the “forced
surrender” of the residents’ rights to assume their sellers’ prospectuses. They
alleged that the defendants fraudulently induced prospective sellers whose properties
were governed by an older, more favorable prospectus to adopt the P6 prospectus1
using bribes, misrepresentations, and other incentives via the mail or wires, in
violation of 18 U.S.C. sections 1341 and 1343. The residents alleged that: (1) they
were injured by the defendants’ actions because they were forced to pay a higher
rental price than they would have paid under the pre-existing prospectus, and
(2) they were deprived of their statutory right to assume their sellers’ existing
prospectus.
The homeowner’s association also alleged that Murex Properties (Schalamar
Creek’s operator), Steven Adler (the president and chief executive officer of Murex
Properties), and Northwestern Mutual (Schalamar Creek’s indirect owner), violated
the Americans with Disabilities Act because some of the common areas of
Schalamar Creek were not accessible to disabled residents. In particular, they
pointed to obstacles at the clubhouse that made it inaccessible to residents who were
“elderly persons” with “mobility, balance, gait, vision, and hearing difficulties.”
1
The P6 prospectus was one of mobile home prospectuses authorized by the state of Florida
for use at Schalamar Creek at the time.
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The defendants moved for summary judgment. As to the RICO claims, they
argued that the residents did not have standing because they purchased properties
already subject to the P6 prospectus, so the alleged scheme did not cause their injury.
As to the Americans with Disabilities Act claim, they argued that the homeowner’s
association did not have associational standing because the residents would not have
standing and the claim was not “germane” to the purpose of the homeowner’s
association. The defendants also argued, as to the Americans with Disabilities Act
claim, that there was no summary judgment evidence that the proposed
modifications to the clubhouse were “readily achievable.”
The district court granted summary judgment for the owners and operators.
As to the RICO claims, the district court found that the residents did not have
standing to pursue their claims related to the P6 prospectus because “none of the
[residents] [were] resale purchasers forced to accept the P6 [p]rospectus at closing.”
As to the Americans with Disabilities Act claim, the district court found that the
homeowner’s association did not have associational standing under Hunt v.
Washington State Apple Advertising Commission, 432 U.S. 333 (1977). The district
court explained that an association only has standing to sue on behalf of its members
when (1) “its members would otherwise have standing to sue in their own rights,”
(2) “the interests it seeks to protect are germane to the organization’s purpose,” and
(3) “neither the claim asserted nor the relief requested requires the participation of
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individual members in the lawsuit.” The district court found that the homeowner’s
association had “not identified any members that would otherwise have standing to
sue in their own right,” and that the homeowner’s association could not, as a matter
of law, establish that the Americans with Disabilities Act claim was germane to its
purpose.
STANDARD OF REVIEW
When a district court dismisses a claim for lack of standing, we review de
novo the court’s legal conclusions and its factual findings for clear error. ACLU of
Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1190, 1195 (11th Cir.
2009). “The party opposing the motion [for summary judgment] must present
specific facts in support of its position and cannot rest upon allegations or denials in
the pleadings.” Martin v. Com. Union Ins. Co., 935 F.2d 235, 238 (11th Cir. 1991).
“[W]e may affirm [a district court’s] judgment on any ground that finds support in
the record.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001)
(internal quotation marks omitted).
DISCUSSION
As they did before the district court, the residents argue that they have
standing to bring their RICO claims because they were injured by the defendants’
fraudulent scheme to induce sellers to adopt the P6 prospectus. As to the Americans
with Disabilities Act claim, the homeowner’s association argues that it has
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associational standing because: (1) members of the homeowner’s association would
individually have standing, and (2) advocating for the interests of disabled members
is related to the homeowner’s association’s purpose.
RICO Claims
The residents argue that the district court erred in finding that they lacked
standing to bring their RICO claims because the defendants’ fraudulent scheme to
convince sellers to adopt the P6 prospectus indirectly injured them. We begin with
the elements of standing and the basis for the residents’ RICO claims.
To establish Article III standing, a litigant “must prove (1) an injury in fact
that (2) is fairly traceable to the challenged action of the defendant and (3) is likely
to be redressed by a favorable decision.” Jacobson v. Fla. Sec’y of State, 974 F.3d
1236, 1245 (11th Cir. 2020) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–
61 (1992)). At the summary judgment stage, plaintiffs cannot rest on “mere
allegations, but must set forth by affidavit or other evidence ‘specific facts,’ which
for purposes of the summary judgment motion will be taken to be true.” Lujan, 504
U.S. at 561 (internal citation omitted).
The RICO statute makes it “unlawful for any person employed by or
associated with” an enterprise engaged in or affecting interstate or foreign commerce
“to conduct or participate, directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity.” 18 U.S.C. § 1962.
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“[R]acketeering activity” includes “any act which is indictable under . . . section
1341 (relating to mail fraud) [or] section 1343 (relating to wire fraud).” 18 U.S.C.
§ 1961(1)(B). Mail fraud, in turn, occurs whenever a person, “having devised or
intending to devise any scheme or artifice to defraud,” uses the mail “for the purpose
of executing such scheme or artifice or attempting to do so.” Id. § 1341. Likewise,
wire fraud occurs whenever a person uses a wire, radio, or television communication
to execute a fraudulent scheme. Id. § 1343. The scheme to defraud “requires proof
of a material misrepresentation, or the omission or concealment of a material fact
calculated to deceive another out of money or property.” United States v. Bradley,
644 F.3d 1213, 1238 (11th Cir. 2011).
The residents argue that the defendants defrauded the sellers, and that fraud
injured the residents indirectly in the amount of “the difference between the lot rents
the buyers would have paid if they had been given the opportunity to adopt the pre-
P6 prospectus that their sellers had been operating under” and the amount they ended
up paying under the P6 prospectus. The residents argue that injury was caused by
the defendants because they induced the sellers to adopt the P6 prospectus before
the residents bought homes in Schalamar Creek.
But, even if the residents suffered an injury-in-fact because they were forced
to pay a higher rent, they failed to show that the injury they suffered is traceable to
the defendants’ alleged scheme. See Jacobson, 974 F.3d at 1253 (“To satisfy the
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causation requirement of standing, a plaintiff’s injury must 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.’” (quoting Lujan, 504 U.S. at 560)). We’ve
explained that “an injury is not fairly traceable to the actions of a defendant if [it is]
caused by the ‘independent action of some third party not before the court’ and
likewise a controversy is not justiciable when a plaintiff independently caused his
own injury.” Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1271 (11th Cir. 2019)
(quoting Swann v. Sec’y, Ga., 668 F.3d 1285, 1288 (11th Cir. 2012)). The residents
haven’t produced any summary judgment evidence to show that the higher rent is
traceable to any “misrepresentation” or “omission,”—i.e., to the defendants’
scheme—rather than to the residents’ decisions to buy their homes or the sellers’
decisions to adopt the P6 prospectus.
First, the residents don’t point to “specific facts” showing that any sellers’
decision to enter into the P6 prospectus was caused by the defendants’
“misstatements” or “omissions.” See Wilding v. DNC Servs. Corp., 941 F.3d 1116,
1126 (11th Cir. 2019) (“The critical question is whether the plaintiffs’ injuries are
fairly traceable to the defendants’ allegedly false statements, and on that question
there are just too many unknowns.”); cf. Clapper v. Amnesty, Int’l USA, 568 U.S.
398, 414 (2013) (“We decline to abandon our usual reluctance to endorse standing
theories that rest on speculation about the decisions of independent actors.”). The
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residents didn’t produce any affidavits, testimony, or statements from any of the
sellers who were allegedly defrauded. In fact, the residents’ testimony suggests that
the sellers entered into the P6 prospectus so they could get rent concessions or
receive other benefits from Schalamar Creek’s owners.
For example, Linda Gledhill explained that her seller, Citizens Bank, agreed
to the P6 prospectus in exchange for reduced rent at the bank’s other properties in
Schalamar Creek. James Driskel explained that his seller agreed to the P6 prospectus
so Murex Properties would list his property for sale. Similarly, Phil Featherbay
explained that his seller agreed to the P6 prospectus in exchange for the payment of
an “incentive.” But, none of the residents testified that their sellers were misled or
defrauded by the defendants’ actions. Without “specific facts,” Lujan, 504 U.S. at
561, showing that the sellers were misled by the defendants’ representations or
omissions, the residents can’t show that the defendants caused, directly or indirectly,
their injury, see Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1350 (11th Cir. 2016)
(“Without reliance on the fraud by someone . . . the plaintiffs would not be able to
show that they were injured by reason of the alleged racketeering activity.”).
Second, the residents only suffered an injury because they purchased
properties in Schalamar Creek that were already subject to the P6 prospectus.
Gledhill explained that she purchased her home subject to the P6 prospectus with
eyes “wide open” to the fact that she was agreeing to be bound by it. Driskel said it
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was not “material” to him which prospectus governed his home. And the other
residents knew they were agreeing to a lease, and thus to any rents determined by
any incorporated prospectus, when they bought their homes. They couldn’t be
deprived of their right to assume the sellers’ existing lease and prospectus because
that’s exactly what they voluntarily agreed to do when they bought homes in
Schalamar Creek. See Pevsner v. Eastern Air Lines, Inc., 493 F.2d 916, 918 (5th
Cir. 1974) (concluding that plaintiff did not have standing because “any injury would
be self-inflicted”); Swann, 668 F.3d at 1288 (“[A] controversy is not justiciable
when a plaintiff independently caused his own injury.”). Had it been material to
them, the residents could have avoided any injury by buying homes that were subject
to a more favorable prospectus.
Thus, the residents’ injury was caused by their decision to purchase properties
subject to the P6 prospectus or the sellers’ agreement to the P6 prospectus, not by
the defendants’ alleged scheme. They have not “show[n] that they were injured by
reason of the alleged racketeering activity.” Ray, 836 F.3d at 1350. And because
the residents cannot show that their injury is traceable to the defendants’ scheme,
they do not have standing to bring their claims. See Jacobson, 974 F.3d at 1245.
Americans with Disabilities Act Claim
The district court granted summary judgment for Schalamar Creek’s owners
and operators on the homeowner’s association’s Americans with Disabilities Act
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claim because it found that the homeowner’s association did not have associational
standing under Hunt. The homeowner’s association argues that this was error
because: (1) members of the homeowner’s association have individual standing to
bring an Americans with Disabilities Act claim, and (2) ensuring Schalamar Creek’s
clubhouse is accessible to its members is “germane” to its purpose. We agree with
the homeowner’s association, but we still conclude that summary judgment was
proper because it did not present summary judgment evidence that the proposed
modifications to Schalamar Creek’s clubhouse were readily achievable.
Associational standing: Members of the homeowner’s association have standing.
An association has standing to bring suit on behalf of its members when:
(1) “its members would otherwise have standing to sue in their own right”; (2) “the
interests at stake are germane to the organization’s purpose”; and (3) “neither the
claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” White’s Place, Inc. v. Glover, 222 F.3d 1327, 1330 (11th
Cir. 2000) (discussing Hunt’s associational standing requirements). Only the first
two requirements are at issue in this case.
“In order to sue on behalf of [their] members, organizational plaintiffs need
not establish that all of their members are in danger of suffering an injury.” Arcia v.
Fla. Sec’y of State, 772 F.3d 1335, 1342 (11th Cir. 2014). “Rather, the rule in this
Circuit is that organizational plaintiffs need only establish that ‘at least one member
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faces a realistic danger’ of suffering an injury.” Id. (quoting Fla. State Conf. of
N.A.A.C.P. v. Browning, 522 F.3d 1153, 1163 (11th Cir. 2008)). So, the question
is whether any of the homeowner’s association’s members would have standing to
bring a claim under the Americans with Disabilities Act.
The Americans with Disabilities Act confers on “any person” the right to “be
free from discrimination on the basis of disability with respect to the full and equal
enjoyment of the facilities.” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323,
1332 (11th Cir. 2013) (citing 42 U.S.C. § 12182(a)) (cleaned up). That right is
violated when an individual “encounters architectural barriers that discriminate
against him on the basis of his disability.” Id. Thus, an individual who encounters
architectural barriers “has suffered injury in precisely the form the statute was
intended to guard against.” Id.Here, at least some members of the homeowner’s association would
individually have standing to bring an Americans with Disabilities Act claim. In
response to the defendants’ motion for summary judgment, the homeowner’s
association proferred testimony from Phil Featherbay, who suffers from various
disabilities that require him to use a cane; Joette Kelly, who is paralyzed in one leg
and uses a wheelchair; and James Driskell, who has a back condition and is partially
paralyzed in one leg. Driskell and Featherbay testified that they have difficulty
accessing the common areas of Schalamar Creek due to their disabilities. For
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example, Driskell explained that he had difficulty accessing the upper level of the
clubhouse, and the Featherbays explained that they didn’t attend functions at the
clubhouse because it was not accessible to them.
The homeowner’s association also specifically identified barriers at the
clubhouse which made it inaccessible to residents, like Driskell, Kelly, and the
Featherbays, with “mobility, balance, gait, vision, and hearing difficulties.” For
example, the homeowner’s association pointed to the lack of an elevator and the
inaccessible configuration of the clubhouse bathrooms. Thus, at least some of the
residents have encountered architectural barriers that discriminate against them on
the basis of their disabilities. See Houston, 733 F.3d at 1332.
Associational standing: Ensuring that the clubhouse is accessible to residents is
germane to the homeowner’s association’s purpose.
Next, we consider whether the interest at stake—the homeowner’s
association’s interest that the clubhouse be accessible to disabled residents—is
“germane” to the organization’s purpose. We conclude that it is.
The district court, relying on Drummond v. Zimmerman, 454 F. Supp. 3d
1210, 1221 (S.D. Fla. 2020), concluded that the homeowner’s association could not
show, as a matter of law, that the Americans with Disabilities Act claim was germane
to its purpose, because “[t]he [homeowner’s association] exists for the benefit of the
homeowners and the mobile home park; it is not a disability advocacy group.” But
the district court’s understanding of what is germane was too limited.
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“[T]he germaneness requirement is ‘undemanding’ and requires ‘mere
pertinence’ between the litigation at issue and the organization’s purpose.” Ass’n of
Am. Physicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 550 n.2 (5th Cir.
2010) (quoting Bldg. & Constr. Trades Council of Buffalo v. Downtown Dev.,
Inc., 448 F.3d 138, 148 (2nd Cir. 2006)) (concluding that the Association of
American Physicians and Surgeons had standing to sue the Texas Board of Medical
Examiners for alleged constitutional violations of member physicians’ rights); see
also Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588, 597 (D.C. Cir. 2015) (“The
germaneness requirement mandates pertinence between litigation subject and
organizational purpose.” (quotations marks omitted)). We considered the
germaneness prong of associational standing in White’s Place. There, White’s
Place, a gentlemen’s club, brought a facial overbreadth challenge to a Jacksonville
ordinance prohibiting individuals from “opposing a police officer.” White’s Place,
222 F.3d at 1327. We observed that “the ordinance being challenged . . . [did] not
directly relate to the interests of the business” because “White’s Place [was] a
corporation whose primary purpose [was] to present erotic dancing for profit.” Id.
at 1330. We explained that “the ability to oppose a police officer legitimately
through spoken words [was] not related sufficiently” to that purpose. Id. Thus, we
held that the club did not have associational standing to bring a claim on behalf of
its dancers because the challenged law was not germane to the club’s purposes. Id.16
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But, other than in White’s Place, we have not found that an association lacked
standing to bring a claim on behalf of its members because the litigation was not
germane to the association’s purpose. See, e.g., Greater Birmingham Ministries v.
Sec’y of State for Ala., No. 18-10151, 2021 WL 1323510, at *10 (11th Cir. Apr. 8,
2021) (holding that a lawsuit challenging state voter identification laws was germane
to the purposes of the Alabama N.A.A.C.P. and Greater Birmingham Ministries, a
social justice charity); Am. Iron & Steel Inst. v. Occupational Safety & Health
Admin., 182 F.3d 1261, 1274 n.10 (11th Cir. 1999) (concluding that a lawsuit
challenging OSHA regulations of respiratory standards was germane to the purposes
of the American College of Occupational and Environmental Medicine).
Unlike the relationship between the challenged law and the business purpose
of the club in White’s Place, here the interests at stake are more closely related to
the purposes of the homeowner’s association. For example, Florida Rule of Civil
Procedure 1.222 gives the homeowner’s association authority to act as a class
representative and bring suits “in its name on behalf of all association members
concerning matters of common interest to the members, including but not limited to:
the common property [and] structural components of a building or other
improvements.” Fla. R. Civ. P. 1.222. Florida law also designates the homeowner’s
association as the representative of “all the mobile home owners in all matters
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relating to [the Mobile Home Act], regardless of whether the homeowner is a
member of the association.” Id. § 723.075(1).
In response, the defendants argue that Florida courts “require complete
commonality for all homeowners” for the homeowner’s association to have
standing. See, e.g., Malco Indus., Inc. v. Featherock Homeowners Ass’n, Inc., 854
So. 2d 755, 757 (Fla. Dist. Ct. App. 2003) (concluding that a homeowner’s
association did not have standing to enforce a settlement agreement against future
purchasers); Amber Glades, Inc. v. Leisure Assoc. Ltd. P’ship, 893 So. 2d 620, 625
(Fla. Dist. Ct. App. 2005) (concluding that a homeowner’s association did not have
standing to enforce park rules against other residents). But these cases dealt with
situations where the members of the homeowner’s association had competing
interests or no interests at all. Malco, 854 So. 2d at 757 (“[T]he dispute is of limited
interest to all homeowners . . . and, as such, the [homeowner’s association] is not the
proper party to bring the action.”); Amber Glades, 893 So. 2d at 625 (“If the mobile
homeowners, as a class, include members that will be harmed by the judgment . . .
[the homeowner’s association] certainly cannot represent all of them.”). By contrast,
all residents of Schalamar Creek have an interest in making sure that the clubhouse
is accessible and compliant with the Americans with Disabilities Act, and there is
no issue of conflicting interests, as was the case in Amber Glades. Moreover, the
Mobile Home Act gives the homeowner’s association the right to institute certain
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claims when only a majority of members vote in favor; it does not require “complete
commonality.” See Fla. Stat. § 723.037 (providing that a homeowner’s association
has standing to challenge an increase in lot rental amount, a reduction in services or
utilities, or a change of rules and regulations if “a majority of the affected
homeowners agree”). Thus, the defendants’ contention that the homeowner’s
association’s standing requires “complete commonality” is without merit.
For these reasons, we conclude that the homeowner’s association has an
interest in making sure that the “common property [and] structural components” of
Schalamar Creek are accessible to handicapped residents. See Fla. R. Civ. P. 1.222.
Its claim under the Americans with Disabilities Act is germane to its purpose.
The proposed modifications were not readily achievable.
Even if the homeowner’s association has standing to bring its claims, the
defendants contend that we should still affirm summary judgment because the
homeowner’s association did not meet its burden to show that the removal of
accessibility barriers was “readily achievable.” We agree.
“The [Americans with Disabilities Act] imposes different requirements on the
owners and operators of facilities that existed prior to its enactment date [in 1993].”
Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1273 (11th Cir.
2006). In an existing facility, “the [Americans with Disabilities Act] states that
discrimination includes a private entity’s ‘failure to remove architectural barriers . . .
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where such removal is readily achievable.’” Id. (quoting 42 U.S.C. §
12192(b)(2)(A)(iv)). The Americans with Disabilities Act defines “readily
achievable” as “easily accomplished and able to be carried out without much
difficulty or expense.” 42 U.S.C. § 12181(9).
In Gathright-Dietrich, we adopted a burden-shifting framework that applies to
summary judgment motions in Americans with Disability Act claims based on the
removal of architectural barriers. See 452 F.3d at 1273–74 (adopting the burden-
shifting framework set out in Colo. Cross Disability Coal. v. Hermanson Fam. Ltd.
P’ship I, 264 F.3d 999, 1007 (10th Cir. 2001)). Under this framework, “the plaintiff
has the initial burden of production to show (1) that an architectural barrier exists;
and (2) that the proposed method of architectural barrier removal is ‘readily
achievable,’ i.e., ‘easily accomplishable and able to be carried out without much
difficulty or expense’ under the particular circumstances of the case.” Id. at 1273.
We explained that “a plaintiff must present sufficient evidence so that a defendant
can evaluate the proposed solution to a barrier, the difficulty of accomplishing it, the
cost [of] implementation, and the economic operation of the facility. Without
evidence on these issues, a defendant cannot determine if it can meet its subsequent
burden of persuasion.” Id.
The facts of Gathright-Dietrich are instructive. There, the plaintiffs
“submitted three proposed options” relating to the removal of barriers, but they
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“failed to produce any reliable evidence that those proposals were ‘readily
achievable.’” Id. at 1274. Further, the proposed modifications “were non-specific,
conceptual proposals that did not provide any detailed cost analysis,” and the
plaintiffs “failed to provide expert testimony to assure the feasibility of their
proposed” modifications. Id. Finally, the plaintiffs did not “produce a financial
expert to link the estimated costs of their proposals with [the defendant]’s ability to
pay for them” and “failed to take even the rudimentary steps of formulating what
those estimated costs might be or providing any evidence of the [defendant]’s
financial position and ability to pay those costs.” Id. The district court granted
summary judgment for the defendants, and we affirmed. Id. at 1272, 1275. We
explained that, given the lack of evidence about the estimated costs or feasibility of
the modifications, the plaintiffs didn’t carry their burden to show that the proposed
modifications were “readily achievable.” Id. at 1273.
The same goes here. The clubhouse pre-dates the Americans with Disabilities
Act. And although the complaint identified deficiencies with Schalamar Creek’s
clubhouse, the homeowner’s association has presented no summary judgment
evidence that any of the proposed modifications were readily achievable, choosing
instead to rely on the allegations in the complaint. Even in response to the
defendants’ expert affidavit explaining why the modifications were not readily
achievable, the homeowner’s association did not put forth any specific evidence
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about the feasibility of their proposals, the estimated costs associated with them, or
Schalamar Creek’s ability to pay those costs. Instead, they only presented an expert
affidavit that explained why he disagreed with some of the conclusions of the
defendants’ expert. This is fatal to their claim.
Like the plaintiffs in Gathright-Dietrich, the homeowner’s association has
failed to carry its burden to show that the proposed modifications were readily
achievable. Accordingly, the district court properly granted summary judgment for
the defendants on the homeowner’s association’s Americans with Disabilities Act
claim.
CONCLUSION
Because the district court correctly found that the residents did not have
standing as to their RICO claims, and the homeowner’s association failed to satisfy
its burden of proof on its Americans with Disabilities Act claim, we affirm the
district court’s summary judgment for Schalamar Creek’s owners and operators.
AFFIRMED.
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