COBB

v.

CITRUS FALLS AT WESTCHASE APARTMENTS, LLC

Before the Court is Defendant’s Motion to Dismiss Complaint with Prejudice (Dkt. 10) and Plaintiff’s response (Dkt. 14). After careful review of the allegations of the complaint (Dkt. 1), the submissions of the parties, and the applicable law, the Court grants the motion with leave to amend the complaint. Allegations Plaintiff’s two-count complaint seeks damages and injunctive relief pursuant to the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. § 3601 et seq. Plaintiff resides in an apartment he leases from Defendant in Tampa. Dkt. 1, ¶ 5. He suffers from a disability which substantially limits one or more of his major life activities. Dkt. 1, ¶ 6. He has “end stage renal failure, congestive heart failure, significantly diminished lung capacity, and herniated discs” and uses a wheelchair. Dkt. 1, ¶ 6.

In the first count, Plaintiff alleges Defendant refused to make a reasonable accommodation “in its rules, policies, practices, or services” with respect to violations in both the common areas and his individual apartment. The list ranges from improper walkway or ramp grades for access to the office, swimming pool, gym, and his apartment, to obstructed paths, the lack of inaccessible handicap spaces, and noncompliant doorknobs and latches. Dkt. 1, ¶¶ 9–10, 13. He claims his apartment has a noncompliant sink, tub, shower, and toilet as well as doorknobs and locks. Dkt. 1, ¶¶ 9, 10, 13, 14. He cites 42 U.S.C. § 3604(f)(3)(B) and seeks both punitive and compensatory damages, as well as an injunction to stop Defendant and its agents from essentially blocking his path and discriminating against him. This count also seems to allege that Plaintiff expects Defendant to make the noncompliant items compliant, presumably at Defendant’s expense. The second count alleges Defendant’s failure to remedy defective construction, focusing on the entrance grades, doors, and locks both in the common areas and his apartment. Dkt. 1, ¶¶ 9, 10, 18. He cites 42 U.S.C. § 3604(f)(1) and (2) and requests relief similar to the first count. Discussion Applying the Twombly/Iqbal¹ standard, the Court permits Plaintiff to replead with allegations more closely tracking the provisions of the statute. Defendant’s contention that § 3604(f)(3)(B) does not provide for Defendant to undertake significant structural improvements to the physical condition of its property is well-taken. Neither the construction nor improvements Plaintiff seemingly desires are reasonable accommodations under the statute as neither is an accommodation in a rule, policy, practice, or service of Defendant, and therefore “a request for construction or repair is not actionable under subsection (B).” See Weiss v. 2100

Condo. Ass’n, Inc., 941 F. Supp. 2d 1337, 1344 (S.D. Fla. 2013) (internal citation omitted). The second count as drafted seeks relief under §§ 3604(f)(1) and (2) for a failure to remedy defective construction. These sections generally do not provide such relief and do not constitute an independent act of prohibited discrimination. Harding v. Orlando Apartments, LLC, 748 F. 3d 1128, 1131 (11th Cir. 2014).2 If this action is an alleged failure to remedy a defective condition, it would typically

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO: Counsel of record