STATEMENT OF THE CASE AND FACTS

Plaintiffs filed this action challenging the City’s application of its

prohibition against boarding houses to plaintiff RPN’s proposal to rent housing to people in recovery. Specifically, plaintiffs claimed that the application of that prohibition to people in recovery, but not to similarly-situated people not in recovery, constituted discrimination in violation of the ADA, the FHAA, and the federal and Florida equal protection clause. Plaintiffs also claimed that the City’s interpretation of its boarding house prohibition was so arbitrary that it violated the federal and Florida due process clauses. In the alternative, plaintiffs argued that even if the boarding house prohibition did apply to them, that the City violated the ADA and FHAA in refusing to grant them a reasonable accommodation from that prohibition.

           After extensive discovery, plaintiffs learned that the City’s decision to prohibit RPN from renting to people in recovery was made against the backdrop of political pressure from a powerful neighborhood association that didn’t want RPN to rent to people in recovery.

            The City moved for and was granted summary judgment.

            Appellants submitted the following facts in opposition to the City’s Motion for Summary Judgment:

 A.     Dell Park - a Model for Recovery 

          In 1998,  RPN of Florida, Inc. (“RPN”) purchased the property located at 255-265 Northeast 10^th Street, Delray Beach (“Dell Park”). R-52 (Blacher 12/15/99 Depo. at 12).  The three duplexes that comprise Dell Park had been in disrepair for years prior to RPN’s purchase.  R-52 (Blacher 12/15/99 Depo. at 15;  Christianson Depo. at 43-44).  Indeed, the City’s Code Enforcement supervisor described the property as a “dump” with numerous code violations. R-52 (Meeteer Depo. at 12).   After purchasing the property, RPN extensively renovated and improved it. R-52 (Blacher 12/15/99 Depo. at 15-17; Meeteer Depo. at 13; Christianson Depo. at 45).

          Stephan Blacher, president of RPN, purchased Dell Park to create a place where people in recovery from drug and alcohol addiction could live together in a self-governing, peer-based environment and return to productive lives.  R-52 (Blacher 12/15/99 Depo. at 25).  Dell Park is loosely modeled on the Oxford House model–self-governing, independent residences for persons recovering from drug and/or alcohol addiction.  R-52 (Blacher 12/15/99 Depo. at 24-25; Affidavit and Report of Riley Regan at 7, Exh.2).   Like Oxford Houses, Dell Park is financially self-sustaining and does not receive support from government or other sources. R-52 (Blacher 12/15/99 Depo. at 35; Regan Report at 7).   Dell Park operates on the premise that people in the early stages of recovery from drug and alcohol addiction will succeed in remaining sober if they live in a highly supportive drug and alcohol-free environment with others in recovery.  R-52 (Regan Report at 7;  Agresti  Depo. at 29-30; Agresti Report at 1 (Exh. 3). ^[1]

          After viewing Dell Park, Blacher decided it would be ideal for his model because each duplex unit has two bedrooms, dining and living areas, and a fully functional kitchen. R-52 (Blacher 12/15/99 Depo. at 31).  With four people per unit, each resident would have a roommate. R-52 (Blacher 12/15/99 Depo. at 24).   It is important for persons in recovery to share bedrooms to avoid relapse-triggering isolation.  R-52 (Agresti Depo. at 32; Bill F. Depo. at 9-10).

          Dell Park’s location also addresses many of the recovering people’s most critical needs as recovering alcoholics and addicts.  It is near public transportation, only blocks away from Alcoholics Anonymous meetings, close to a commercial district, and located in a stable, quiet single-family neighborhood. R-52 (Blacher 12/15/99 Depo. at 37; Bill F. Depo. at 11).  Finding and staying in a healthy, functional environment, surrounded by people who are not abusing alcohol or drugs, away from people and situations that previously triggered substance use, with access to transportation and work opportunities, are essential elements to avoiding relapse.  R-52 (Regan Report at 6-7; Taylor Depo. at 24-25).

          B.   The City’s Response to Dell Park

          There is a need for transitional housing such as Dell Park for persons in recovery in Delray Beach. R-52 (Bill F. Depo. at 6-7; Elma W. Depo. at 15-16; Agresti Depo. at 4-5, 45-46; Agresti Report at 1; Bozzone Depo. at 9; Taylor Depo. at 50, 77).  The Lighthouse, a Delray Beach residence for people in recovery similar to Dell Park, usually has a waiting list, often for as many as 12-15 people.  R-52 (Norbert Poli Depo. at  8).

          Aware of this need, Blacher was also aware of the sometimes-strong resistance and opposition from cities and neighborhoods to residences like Oxford House when they attempted to locate in residential neighborhoods.  For this reason, Blacher first discussed with the City informally his intent to rent Dell Park to persons in recovery in 1998, prior to purchasing the property.  R-52 (Blacher 12/15/99 Depo. at 8, 11).   Janet Meeks, a senior planner for City, advised him that there was nothing in the City’s regulations that prohibited rentals to persons in recovery at Dell Park.  R-52 (Blacher 12/15/99  Depo. at 8).  Blacher had a subsequent discussion with Diane Dominguez, the City’s Planning Director, in October 1998 to confirm Meeks’ statement. Dominguez said, “unfortunately there is nothing in the code that can prevent this,” and “maybe we need to change our codes.” R-52 (Blacher 12/15/99 Depo. at 9, 48-49).

          The City’s position changed after RPN purchased the property.  On August 16, 1999, the City sent a letter to Blacher, stating that Dell Park was a prohibited “treatment facility” and “boarding house.” R-52 (Exh. 10).  The City claims this letter was prompted by a review of RPN’s advertising materials collected by a code enforcement officer. R-52 (Dominguez 12/15/99 Depo. at 31-32).  On September 29, 1999, RPN and its counsel met with various City officials to attempt to resolve these issues. RPN learned that the City’s determination that it was a treatment facility was based on RPN’s requirement of random drug testing. R-52 (Dominguez 12/15/99  Depo. at 31-32).  There is no provision in the City’s code definition of “treatment facility,” however, that mentions drug testing, nor did RPN’s advertisements state that it offered any treatment.  R-52 (Dominguez 12/15/99  Depo. at 31-32).  The City considered Dell Park a boarding house even though the buildings are duplexes under the City’s zoning code definition, and even though RPN’s advertisements referenced tenants entering into mutual leases. R-52 (8/17/00 Affidavit of Stephan Blacher, Exh. 1). 

          During the September 29, 1999 meeting, RPN advised the City that the proposed use was neither a “treatment facility” nor a “boarding house,” and even if it was, plaintiffs requested a reasonable accommodation to operate in this manner to accommodate persons in recovery. R-52 (Dominguez 6/23/00  Depo. at 46-47).  Plaintiffs also offered, consistent with the advertisements previously considered by the City, that its tenants would sign “mutual leases,” to make it abundantly clear that each tenant would be jointly and severally liable for the entire rent.  At the conclusion of the meeting, the City advised that it would respond to RPN within ten days.  Nearly three weeks passed before the City finally responded, refusing to allow RPN to open as proposed.  R-52 (Blacher 8/17/00 Aff.).   The City did not advise that it was abandoning its claim that the proposed use was a “treatment facility” until after this suit was filed. R-52 (Blacher 8/17/00 Aff.; Dominguez 12/15/99 Depo. at 34).  Nor did it advise that RPN’s offer to require joint and several liability would be sufficient. R-52 (Blacher 8/17/00 Aff.).  Over the next eight months RPN continued its efforts to meet the City’s demands, and submitted a series of proposed leases for review that required tenants to be jointly and severally liable for rent. R-52 (Exhs. 8b - 8f).  Finally, eight months later, and after being confronted with the growing amount of the plaintiffs’ damages claim, the City approved RPN’s lease. R-52 (Exh. 8g).

C.  Neighborhood Resistance to Dell Park

          During the same time period of the City’s initial determination that RPN was a treatment facility and boarding house, and during RPN’s negotiations with the City in the fall of 1999, Dell Park’s neighbors were voicing their opposition to City officials. R-52 (Meeteer Depo. at 9 (“[Seacrest’s] concern was, yeah that drug addicts and alcoholics would not be conducive to their neighborhood”); R-52 Dominguez 6/23/00 Depo. at 28). 

          Dell Park is located in the Seacrest neighborhood of Delray Beach, an older neighborhood of single-family homes, duplexes and other multi-family residences, located close to downtown. R52 (Koplas Depo. at 6).  As described by the current president of the neighborhood association, Seacrest is “historically significant, cute [and] quaint.” R-52 (Koplas Depo. 5).  Seacrest is currently undergoing gentrification, as younger people are moving there and restoring homes. R-52 (Koplas Depo. at  7-8; Norbert Poli Depo. at 5).

          The Seacrest Neighborhood Association (“Seacrest Association”), currently with 150 members, was formed in 1990 for the overall “betterment” of the neighborhood, including reducing blight, and eliminating the multi-families and duplexes.  R-52 (Koplas Depo. at  9).  The Seacrest Association meets once a month from September to May, and issues newsletters each month. R-52 (Koplas Depo. at 13).  In the past, when members of the Seacrest Association attended city meetings, sometimes over 50 at a time, they wore white hats.  R-52 (Koplas Depo. at 16; Christianson Depo. at 27-28).  

          The Seacrest Association impacts the City. R-52 (Christianson Depo. at 54).  The Seacrest Association does not have “to pull teeth to get things done with the City, and gets “full cooperation from everybody.” R-52 (Christianson Depo. at 75). The previous mayor, Dr. Jay Alperin, attended their meetings. R-52 (Christianson Depo. at 19). 

          The present mayor and former city commissioner,  David Schimdt, lives in Seacrest. R-52 (Koplas Depo. at 7;  Christianson Depo. at 18).  Christianson,  past president of the Seacrest Association and current liaison with the City for the Seacrest Plan, has been commended by the Mayor and city officials, and Planning Director Dominguez for his work on neighborhood issues. R-52 (Christianson Depo. at 68;  Exhibit 17 to Christianson Depo.).

          In late July 1999, Stephan Blacher discussed his plans for Dell Park with Christianson R-52 (Blacher 8/17/00 Aff at par. 2), and Christianson relayed the substance of this conversation to Dominguez. R-52 (Dominguez 6/23/00 Depo. at 29).  Christianson told Dominguez that Dell Park was a “boarding house” and “rehab center.”  R-52 (Dominguez 6/23/00 Depo. at 29-30). Dominguez faxed a copy of her August 16, 1999 letter to RPN (stating that because Dell Park was a treatment center and boarding house, it was an unlawful use) to Christianson R-52 (Christianson Depo., at 37, 60;  Exh. 1 to Christianson Depo.; Dominguez 7/18/00 Depo. at 6), but she cannot recall why she did so, or how Christianson came to know of the letter.  R-52 (Dominguez 7/18/00  Depo. at p. 6). 

          Other members of the Seacrest Association expressed their opposition to Dell Park’s proposed residents in numerous ways.   Adrian Andrews, a block captain for the Seacrest Association, approached Blacher on the Dell Park property and expressed concern on behalf of her neighbors, about “drug addicts” in the neighborhood.  R-52 (Andrews Depo. at 11). The Seacrest Association discussed the proposed residents of Dell Park at its October 1999 meeting, which Koplas recalls was their “biggest meeting,” with about 50-60 people R-52 (Koplas Depo. at 48):

First we discussed what we thought about ex-addicts being the neighborhood. Parents discussed how that might impact their children.  We discussed if anybody knew the percentage of relapse or occurrence of relapse I should say.  A couple of members said that they had some rehabilitating people for neighbors and that they had never known that was the case, it was quiet and undetectable.  And then one lady got very offended at the whole conversation and said shame on all of us, that’s how the whole conversation went.

 R-52 (Koplas Depo. at 19).

          Notably, the minutes of the October 1999 meeting reflect that then city commissioner and current mayor David Schmidt and others would “follow up” on the “Halfway house” at Dell Park’s address. R-52 (Exhibit 15 to Koplas Depo.; Koplas Dep. at 39-42).  City Manager David Harden acknowledges that Schmidt contacted him with concerns about Dell Park as a place for persons in recovery R-52 (Harden Depo., at 15), and that he also received correspondence from Scott Christianson. R-52 (Harden Depo. at 12).  Harden shared these contacts with Diane Dominguez. R-52 (Harden Depo. at 13).  

          In November 1999, Koplas wrote to City officials expressing the Seacrest Association’s concerns about “the proposal of a rehabilitation house,” at Dell Park’s address.  The letter goes on to say “I believe it is necessary to take steps to prevent this from happening in the future in our, and other residential neighborhoods.” R-52 (Koplas Depo. at 22; Exh. 5).  Ms. Koplas wrote the letter because she felt the City should address the Seacrest Association’s concerns that RPN’s proposed tenants would bring crime into the neighborhood as a result of their “particular challenges,” as  “former drug users.”  R-52 (Koplas Depo. at 25-26). The City’s response to Ms. Koplas’ letter stated that “Planning Director Diane Dominguez has been in frequent contact with Scott Christianson over this issue.”  R-52 (Exh.6).  Dominguez confirms she spoke with Christianson at least four to five times about Dell Park.  R-52 (Dominguez  6/23/00 Depo. at 28).   Christianson testified he contacted City Attorney Susan Ruby as well. R-52 (Christianson Depo. at 39-40).

          Another Seacrest resident, Penny Potts-Hawk, expressed her hostility to people in recovery, and that the “residential recovery business has gotten out of control in Delray,” in her letter of November 7, 1999 to then mayor Jay Alperin.  Her letter states, in part:

I wish to thank the City of Delray Beach and express my support for a current situation.  The city is currently being sued by a company wishing to rent properties to recovering substance abusers.  I would like to commend the city for “putting their foot down” in this situation....The city is doing such a wonderful job to revitalize the downtown area and we absolutely love living here.  Please help the city continue to provide housing for “normal” families.

R-52 (Hawk Depo. at 11;  Exh.4).

          In its Order Granting Summary Judgment (“Order”), R-58, the district court made no mention of the political climate in which the challenged decisions were made, and ignored other evidence of discriminatory motive.