Residential Home -- Violation of Deed-Restrictions?
Court of Appeals
||Case No. 2D01-4527
||854 So.2d 211, 2002.FL.
||December 27, 2002
||CHARLES R. DORNBACH AND SUZANNE K.
LOUIS F. HOLLEY AND JANET K. HOLLEY, APPELLEES.
||Appeal from the Circuit Court for Polk
County, J. Dale Durrance, Judge.
||Amy S. Farrior and Mark P. Buell, of
Schropp, Buell & Elligett, P.A., Tampa, for Appellant.
||No appearance for Appellee.
||Jack Emory Farley, Lakeland, for Amicus
Curiae State of Florida, Department of Children and Family Services.
||The opinion of the court was delivered
by: Davis, Judge
||Charles R. and Suzanne K. Dornbach
challenge the circuit court's final judgment entered in favor of Louis
F. and Janet K. Holley that permanently enjoined the Dornbachs from
allowing their residential real property to be used for the operation
of a community residential home. We reverse.
||The Dornbachs own residential real
property in a subdivision known as Lake Thomas Woods. They leased
their property to Res-Care Florida, Inc., for use as a community
residential home pursuant to chapter 419 of the Florida Statutes. The
group home was intended to house between four and six developmentally
disabled adults. The Holleys, who also own residential real property
in the same subdivision, objected to this use of the Dornbachs'
property. The Holleys filed a petition in the circuit court seeking
injunctive relief, alleging that the group home use violated specific
provisions of the subdivision's restrictive covenants. After the
Dornbachs filed their answer and affirmative defenses, both parties
moved for summary judgment. Following a hearing, the trial court
granted the Holleys' motion for summary judgment, granting them a
permanent injunction which prohibited the Dornbachs from using the
property as a group home. The Dornbachs appeal the final judgment and
||The restrictive covenants of the
subdivision at issue provide:
||1. Each lot shall be used expressly and
exclusively for single-family, private residence purposes.
||2. No business activity shall be
conducted or carried on in connection with the residential usage of
any lot or parcel.
||The Holleys alleged that the group home
use violates both of these restrictions. The Dornbachs responded by
denying that the use violated the restrictions and arguing that the
enforcement of the restrictions is not only contrary to chapter 419,
but such enforcement violates both Florida and federal law by
discriminating against the disabled. Moreover, they contend that the
restrictions are contrary to public policy as they attempt to do by
private restriction what public ordinances and statutes cannot do. The
trial court found that the group home use did, in fact, violate the
restrictive covenants and enjoined the Dornbachs from allowing any use
of the home other than as a single-family residence.
||Chapter 419 provides for the
establishment of community residential homes. Section 419.001(2),
Florida Statutes (2000), specifies that a community residential home
with six or fewer residents "shall be deemed a single-family unit
and a non-commercial, residential use for the purpose of local laws
and ordinances." The legislature intended to protect such group
homes from local zoning ordinances that would exclude them from the
traditional single-family neighborhood. However, the Holleys argued
that section 419.001(2) does not apply to private deed restrictions.
||This court addressed this issue in
Baldwin v. Nature's Hideaway, Phase I-B Homeowners Association, Inc.,
613 So. 2d 1376 (Fla. 2d DCA 1993). In Baldwin, the trial court found
that a neighborhood resident who allowed three unrelated elderly
adults to live in the home under the adult foster care program
violated the deed restriction that prohibited any use that may be or
become a nuisance. The trial court found that the use did violate the
restrictive covenant and entered an injunction prohibiting such use.
||On review, this court reversed,
interpreting the language of the covenant to mean that a showing must
be made that the use was or might become a nuisance and that based on
the record, there were still issues of fact that precluded the
granting of summary judgment. However, the majority also opined:
"We agree with the appellee that section 419.001(2) by its
express terms does not apply to private deed restrictions, nor does it
or Chapter 419 express a public policy of the State of Florida which
overrides private deed restrictions." Id. at 1377. In his
concurrence, Judge Altenbernd suggested that this conclusion was not
necessary to the holding of the court and after discussing the public
policy issues, concluded: "I am not prepared to rule that trial
courts lack the authority to refuse to honor such dubious restrictions
under the public policies expressed in Chapter 419, Florida
Statutes." Id. at 1378. The trial court below relied on the
Baldwin majority opinion in entering the injunctive relief. However,
in Baldwin, the group home was to house elderly persons. Because the
elderly are not included in the list of protected persons under the
Federal Fair Housing Act Amendments of 1988 nor the Florida Fair
Housing Act, Baldwin does not resolve the issue raised here.
||At the summary judgment hearing and in
their motion for rehearing, the Dornbachs argued that the enforcement
of these restrictive covenants is contrary to the United States Fair
Housing Amendments Act of 1988 (FHAA). This Act added handicapped
persons to those protected from discrimination in buying and renting
housing facilities. The Florida Legislature essentially codified the
Federal Act when it enacted the Florida Fair Housing Act. See §§
760.20-.37, Fla. Stat. (2000). In language nearly identical to the
FHAA, section 760.23(7)(b) provides that it is unlawful to
discriminate in the rental of or to "otherwise make
unavailable" a dwelling because of the handicap of any person
intending to reside in the dwelling after it is rented. *fn1
Further, discrimination is defined so as to include a "refusal to
make reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford such
person equal opportunity to use and enjoy a dwelling." §
||In considering the application of the
Florida Fair Housing Act to the present situation, we find the
application of the FHAA by the federal courts to be instructive and
persuasive. In applying the terms of the FHAA, the federal courts have
determined that one may be guilty of discrimination in any one of
three ways. First, the Act prohibits intentional discriminatory
conduct towards a handicapped person. See Martin v. Constance, 843 F.
Supp 1321 (E.D. Mo. 1994). Second, the Act prohibits incidental
discrimination, that is, an act that results in making property
unavailable to a handicapped person. Id. Third, the Act prohibits an
act that fails to make a reasonable accommodation that would allow a
handicapped person the enjoyment of the chosen residence. See Advocacy
Ctr. for Perss. with Disabilities, Inc. v. Woodlands Estates Ass'n,
192 F. Supp. 2d 1344 (M.D. Fla. 2002). We are persuaded that, given
the similarity of language and purpose in the federal and the Florida
legislation, this three-pronged approach applies equally to the
Florida Fair Housing Act.
||Accordingly, based on the record below,
we conclude that the Holleys' action to enforce the deed restriction
is impermissibly discriminatory. Their action was premised on the fact
that the residence was to be a group home for developmentally delayed
adults. Whether the Holleys' action was motivated by a desire to
prevent these disabled persons from living in the neighborhood or
simply by their objection to any group home is not clear from the
record. Therefore, it was error to decide the absence of intentional
discrimination by summary judgment. However, the record does show that
by enforcing the restriction, incidental discrimination results since
the residence is made unavailable for the handicapped. See Rhodes v.
Palmetto Pathway Homes, Inc., 400 S.E. 2d 484 (S.C. 1991). Finally,
public policy as stated in section 419.001(2) and in section 393.062,
Florida Statutes (2000), *fn2
supports the premise that the group home is the functional equivalent
of a single-family residential unit and as such does not pose any
threat to the purpose justifying the deed restrictions at issue. Thus,
to refuse to waive these restrictions is to refuse to offer a
reasonable accommodation, which also amounts to discrimination as
defined by statute. See Advocacy Ctr., 192 F. Supp. 2d 1344.
||Accordingly, the record shows that the
enforcement of the restrictive covenants is discriminatory in at least
two of the three ways identified in Martin, 843 F. Supp. 1321, and as
such, is contrary to state and federal law. Therefore, the trial court
erred in entering the final judgment and injunction. The final
judgment is reversed, and the matter is remanded with instructions
that the trial court should enter judgment in favor of the Dornbachs.
||Reversed and remanded.
||BLUE, C.J., and FULMER, J., Concur.
"Handicap" is defined to include a person who has a
developmental disability. § 760.22(7)(b).
Section 393.062, Florida Statutes (2000), provides, in part: The
Legislature declares that the goal of this act, to improve the quality
of life of all developmentally disabled persons by the development and
implementation of community- based residential place-ments, services
and treatment, cannot be met without ensuring the availability of
community residential opportunities for developmentally disabled
persons in the residential areas of this state . . . . The Legislature
intends that such residences shall be considered and treated as a
functional equivalent of a family unit and not as an institution,
business, or boarding home . . . .