Baby's arrival ignites lawsuit in seniors-only community in Margate
Article Courtesy of Sun-Sentinel

By Jeremy Milarsky  - Staff Writer Sun-Sentinel 
October 15, 2002

MARGATE · There's trouble in Paradise Gardens these days. And the trouble has pigtails.

The dispute, which has landed in federal court, is about a 1-year-old girl named Amber who lives in a quaint cul-de-sac on Northwest 11th Court. The homeowners association has asked her parents to kick the baby out.

Sanford "Hank" Marcus, 36, a small-business owner, bought his home in the neighborhood in 1994, two years before a majority of Paradise Gardens Phase One homeowners reportedly voted to restrict the neighborhood to homeowners 55 years and older.

"It's disgusting, what they're doing," Marcus said. "I'm sorry to have to sue the community I live in, but wrong is wrong."

The age restrictions did not affect Marcus and his wife, Penny, because they bought their house before the change. But last year, Amber was born. The family received a letter in the mail this year from the association and another from the association's attorney, Kenneth Zeilberger.

"Demand is hereby made upon you to cause the immediate removal of the infant ... from your home," Zeilberger wrote. "While we understand the inconvenience such a demand will cause you, the association has determined its preference [to be a seniors-only community]."

Not all the neighbors at the development south of Margate Boulevard and east of Rock Island Road share that preference, though.

Marcus sued the association in federal court in March, claiming that Paradise Gardens did not legally qualify as a senior community. He is not seeking financial damages, according to the complaint. Another family, Joe and Teresa Marchese, joined the suit last month, challenging the community's seniors-only status because the association cited them for renting their house to a family with a child.

The legal troubles have come up in neighborhood meetings, and fliers have circulated around the community criticizing the board members and warning of costly legal fees.

The scuttlebutt has irked the association president, Al Cartier.

"They're scaring the hell out of these people," said Cartier, 74. "I don't know why [Marcus] wants to bring up a baby here anyway. I moved into this place because they had no kids, and I'm too old for that."

Legality challenged

According to the complaint in federal court, the neighborhood's covenants say that in order to change the community's rules governing who can live there, the board must get written permission from every bank that holds a mortgage agreement with a homeowner in the neighborhood.

The board members in Paradise Gardens sent letters to several banks, but they didn't get letters back from all of them, something that's required by law, said Randall Berg, an attorney for the Marcuses.

Randall Roger, a senior partner in Zeilberger's law firm, calls the Marcuses' claim a "technicality." While he declined to discuss the specifics of either lawsuit, Roger criticized the way people judge cases such as the Marcuses'.

"I have never in my life in South Florida seen a story that says, `Look at these jerks who brought kids into a community where kids [are not allowed],'" Roger said. "I know I'm going to read something that says `Look at this big, bad association.'

"The fact is that everyone gets old, and every older person has the right to determine whether they want to live with children."

While federal and state laws make it clear that homeowner and condominium associations cannot discriminate based on race, religion or gender, they can discriminate against young people, provided the neighborhood qualified under a complicated series of senior-housing standards.

Costly court actions

If one of those standards isn't met and the association is challenged in court, the neighbors can lose thousands in damages. In another case, 214 homeowners in the Tamarac neighborhood of Westwood 20 recently were asked to pay more than $7,000 each in damages from a series of lawsuits in the 1990s successfully challenging the community's age restrictions. The damages totaled more than $1.2 million.

Some of Marcus' neighbors are afraid that could happen in 253-home Paradise Gardens Phase One.

Sandra Happ, 57, a former secretary of the association's board of directors, said she recently was asked to resign, partly because she sympathizes with the Marcuses. She fears the lawsuits could get costly.

"I never would have moved here if I knew what was going on," she said. "The more I thought about it, the more I thought, `It can't be, we can't do this to people.'"

More people are bringing the lawsuits up during the monthly association meetings, and Cartier cut last month's meeting short when things got heated. "We gotta fight it out," he said.

And if the Marcuses win?

"I'm, for one, gonna sell my house," Cartier said. "I'm not going to live here with any kids."