SHERI POLSTER CHAPPELL, District Judge.
This matter comes before the Court on Defendant City of Sanibel's Motion to Dismiss Counts I through IX of Plaintiffs' First Amended Complaint dated March 28, 2016. (
Unless stated otherwise, the following facts are drawn from the First Amended Complaint and construed in a light most favorable to Plaintiff as the non-moving party.
This case is about a discriminatory housing practice arising from a lease agreement between Community Housing & Resources, Inc. ("CHR"), as landlord, and Plaintiffs Trisha Floyd ("Trisha"), Christopher Floyd ("Christopher"), and S.F. ("S.F.") as tenants (collectively, the "Floyds"), in a housing unit owned by the City of Sanibel (the "City") through the Below Market Rate Housing program ("BMRH"). (
Trisha and S.F. "have [a] heightened sensitivity to mycotoxin-producing mold," which causes "a substantial mental and physical impairment that substantially limits one or more of [their] major life activities." (
CHR operates and maintains Woodhaven. (Id. at ¶ 20). The City is also heavily involved in the BMRH. (Id. at ¶ 21). CHR receives funding through a Community Development Block Grant Program. (Id.) The City's contribution to CHR exceeded $290,000.00 in 2014. (Id.) The City is involved in decision-making that includes eligibility determinations and everyday operations. (Id. at ¶ 22). The CHR board of directors consists of a City staff member who acts as a liaison. (Id.).
After moving into the Unit, Trisha and S.F. suffered symptoms of exposure to toxic mold. (
In October of 2015, Trisha met with Defendant Kelly Collini, the Executive Director of CHR, and requested remedial action be taken. (Id. at ¶ 30). Collini denied responsibility, threatening the Floyds with eviction. (Id.). Although discouraged from doing so, Trisha requested a meeting with the CHR Board. (Id.). Trisha then requested a meeting with CHR's Landlord Tenant Committee ("Committee"), which the Committee denied on November 3, 2015. (Id. at ¶ 31). On November 9, 2015, Trisha met with a City manager, Judy Zimomra ("Zimomra"), and discussed the presence of mold in the Unit and requested the City's assistance. (Id. at ¶ 32). On November 10, 2015, Trisha received e-mail notification that CHR intended to have an inspection of the Unit by a "mold specialist." (Id. at ¶ 33). Gary Ranard ("Ranard") with Air Technologies visited the Unit on November 12, 2015. (Id. at ¶ 34). However, Ranard does not hold a valid license for assessing or remediating mold. (Id.). Nevertheless, in Ranard's report, he noted the presence of "dead or dried green mold." (Id.). On November 13, 2015, CHR notified Trisha of its remedial action, which included installing a new A/C unit and running oxidizers and heppa vac surfaces. (Id. at ¶ 35). On November 16, 2015, the Floyds notified CHR that if the mold was not removed, they intended to withhold rent, per Fla. Stat. § 83.60, and would seek alternative living arrangements within 7 days. (Id. at ¶ 36). Thereafter, Trisha feared that CHR's remediation plan could potentially make the situation worse, and requested CHR to postpone the remediation for 14 days. (Id. at ¶ 37).
On November 25, 2015, the Floyds, together with counsel, proposed a remedial plan in writing to CHR. (Id. at ¶ 38.). CHR refused to perform such measures and provide alternative accommodations. (Id. at ¶ 39). In response, Trisha and Christopher hired a state-licensed mold assessor, John Cosgrove ("Cosgrove"), to collect samples from the Unit. (Id. at ¶¶ 40-41). Cosgrove observed, and laboratory testing confirmed, harmful molds that produce mycotoxins. (Id. at ¶ 42). Cosgrove noted a HVAC system deficiency causing elevated mold levels. (Id.). Cosgrove provided several recommendations to remediate the mold; nonetheless, CHR made verbal and written threats of the Floyds' eviction in response. (Id. at ¶¶ 43-44).
On December 21, 2015, the Floyds commenced this suit in the Middle District of Florida, Fort Myers Division. (Doc. #1). The City filed a motion to dismiss on February 22, 2016, which the Court denied as moot after the Floyds timely filed their First Amended Complaint. (
STANDARD OF REVIEW
When considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the reviewing court must accept all factual allegations in the complaint as true and view them in a light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This preferential standard of review, however, does not permit all pleadings adorned with facts to survive to the next stage of litigation. The Supreme Court has been clear on this point — a district court should dismiss a claim where a party fails to plead facts that make the claim facially plausible. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the court can draw a reasonable inference, based on the facts pled, that the opposing party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678. This plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 557 (internal quotation marks omitted)).
A. DELEGATION OF THE CITY'S RESPONSIBILITIES TO CHR
The City argues, without legal authority, that dismissal is appropriate because the City delegated its responsibilities to CHR. (
A property owner is ultimately responsible for his "non-delegable duty to provide reasonably safe premises for its invitees." U.S. Sec. Services Corp., 665 So.2d 268, 271 (Fla. 3d DCA 1995); see also Garcia v. St., Dept. of Nat'l Resources, 707 So.2d 1158, 1159 (Fla. 3d DCA 1998). Although another entity operates and maintains the property, the owner remains responsible and liable. See Garcia, 707 So. 2d at 1159. Turning to this action, the City, as the Unit owner, cannot delegate its duty to provide a reasonably safe premises. (Id. at ¶ 19). Consequently, the City's delegation argument fails.
B. HOUSING CLAIMS
The City argues that the Floyds failed to allege enough facts to establish a violation of the Floyds' federal rights. (
1. COUNT I: FEDERAL FAIR HOUSING ACT
"It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601. Under 42 U.S.C. § 3604(f)(3)(B), discrimination consists of "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."
One must prove four elements to establish a failure-to-accommodate claim: "(1) he is disabled within the meaning of the FHA, (2) he requested a reasonable accommodation, (3) the requested accommodation was necessary to afford him an opportunity to use and enjoy his dwelling, and (4) the defendants refused to make the accommodation." Bhogaita v. Altamonte Heights Condominium Ass'n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014) (citation omitted)). One is handicapped under the FHA if he has, "(a) a physical or mental impairment which substantially limits one or more of such person's major life activities, (b) a record of having such an impairment, or (c) [is] . . . regarded as having such an impairment." 42 U.S.C. § 3602(h). The definition of a disability under the ADA is identical to the FHA. See Bhogaita, 765 F.3d at 1287. "The term `substantially limiting' comprises either (1) the inability to perform a major life activity that the average person in the general population can perform, or (2) a significant restriction as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to that of the average person in the general population." E.E.O.C. v. Am. Tool & Mold, Inc., 21 F.Supp.3d 1268, 1274 (M.D. Fla. 2014) (citing Rossbach v. City of Miami, 371 F.3d 1354, 1356-57 (11th Cir. 2004)). "The term `major life activities' is defined as `functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.'" Id.
Turning to this action, Trisha and S.F. assert that their "mental or physical impairment  substantially limits one or more of their life activities, to wit: mold sensitivity that when exposed to toxic mold manifest severe reactions that negatively impact their ability to concentrate, recall events, work, attend class and engage in other important life activities." (
2. COUNT II: AMERICANS WITH DISABILITIES ACT (ADA)
"Subject to the proof this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. "To establish a prima facie case under the ADA, a plaintiff must demonstrate that (1) he is disabled under the ADA, (2) he is a qualified individual, with or without accommodations, and (3) he was unlawfully discriminated against because of his disability." E.E.O.C., 21 F. Supp. 3d at 1274. A "[p]ublic entity" is defined as "any State or local government." 42 U.S.C. § 12131(1)(a). As stated, the definition of a disability under the ADA is identical to the FHA. See Bhogaita, 765 F.3d at 1287.
Turning to this action, the Floyds allege that the City is a "public entit[y] as defined in 42 U.S.C. §12131." (
3. COUNT III: REHABILITATION ACT OF 1973
The Rehabilitation Act of 1973 provides:
29 U.S.C. § 794(a). An "individual with disability" is defined as one who "has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment. . ." § 705(20)(A)(i).
In this action, the BMRH program received federal funding. (
4. COUNT IV: FLORIDA FAIR HOUSING ACT
The City moves for dismissal of Trisha and S.F.'s claim under the Florida Fair Housing Act ("FFHA") because the Floyds failed to exhaust their administrative remedies as required under Fla. Stat. § 760.34(1). (
Nevertheless, the Court finds Milsap v. Cornerstone Residential Mgmt., Inc., No. 05-60033-CIV, 2010 WL 427436, at *4 (S.D. Fla. Feb. 1, 2010), persuasive here. In Milsap, the court held that an individual is not required to exhaust their administrative remedies before filing a claim under FFHA. Id. The court held that "the legislative history, express language, spirit and intent of the FFHA are in direct contradiction to the Belletete ruling[.]" Id. The court noted that Belletete "did not apply fair housing case law in its analysis," but, instead, looked to the Florida Civil Rights Act. Id. at *1. Because "[t]he clear import of the . . . statutory language indicates a complainant may file a complaint and exhaust administrative remedies or, alternatively, commence a civil action," the Floyds were not required to exhaust their administrative remedies before filing this suit and thus, Count IV survives the City's motion to dismiss. Id. at *4.
C. COUNT V: FLORIDA LANDLORD-TENANT ACT
In response to the City's blanket argument that "[n]one of the claims state valid claims upon which relief can be granted against the City," the Floyds argue that the City's liability under Fla. Stat. § 83.43(3), is based upon the City's status as Unit owner. (
Under the Florida Landlord-Tenant Act, a "landlord" includes "the owner or lessor of a dwelling unit." § 83.43(3). A landlord must comply with health codes. § 83.51(1)(a). Turning to this action, it is undisputed that the City owns the Unit. (
D. SOVEREIGN IMMUNITY AS APPLIED TO THE CITY
The City argues that the Floyds seek to create additional tort liability not available under Fla. Stat. § 768.28. (
1. LIABILITY INSURANCE AS A WAIVER OF SOVEREIGN IMMUNITY
First, the Floyds argue that the City "waives sovereign immunity to the extent of its liability insurance." (
2. COUNT VI: BREACH OF LEASE
The City argues that a cause of action for breach of lease does not exist against the City because it was not a party to the lease. (
In Florida, "an agent who makes a contract on behalf of an undisclosed principal is a party to the contract." Kinnon v. Arcoub, Gopman & Associates, Inc., 490 F.3d 886, 890 (11th Cir. 2007) (citation omitted)). To hold an undisclosed principal liable, one must establish the existence of a principal-agent relationship and the essential elements of a contract. See Pittman v. Roberts, 122 So.2d 333, 334 (Fla. 2d DCA 1960); Johnson v. Maddock, 161 So. 842, 843 (Fla. 1935). One can prove an agency relationship through circumstantial or direct evidence. See Pittman, 122 So. 2d at 334. Additionally, liability of an undisclosed principal applies only "to a simply executory contract or one not fully performed." Id. (citations omitted). An executory contract is generally defined as a contract in "which performance remains due to some extent on both sides." In re Learning Publications, Inc., 94 B.R. 763, 764 (Bankr. M.D. Fla. 1988) (quoting S. Rep. No. 95-989, at 5787, 5844, 6303 (1978)). Here, under the lease agreement, performance remained due on each side. (
Under common law, "an agent is one who agrees to act on behalf of another, subject to the other's control." Goldsmith v. City of Atmore, 996 F.2d 1155, 1162 (11th Cir. 1993) (citation omitted)). A municipality can be a party to an agency relationship. See generally id. There are three elements to establish the existence of an agency relationship under Florida law: "(1) acknowledgement [sic] by the principal that the agent will act for it; (2) the agent's acceptance of the undertaking; and (3) control by the principal over the actions of the agent." Turi v. Stacey, No. 5:13-cv-248-Oc-22PRL, 2015 WL 403228, at *9 (M.D. Fla. Jan. 28, 2015) (citations omitted)). When establishing control, "[e]vidence of operation control includes, for instance, evidence that the principal controlled the internal affairs of an agent or determined how the agent operated on a daily basis." Id. (citations omitted).
Turning to this action, the City, as principal, acknowledged CHR, as the City's agent, when the City delegated its responsibility to carry out obligations under the BMHR program to CHR. (
3. COUNTS VII and VIII: THE CITY'S DUTY AS THE UNIT OWNER
In response to the City's sovereign immunity argument, the Floyds submit that the City owed a duty as a property owner. (
Turning to this action, the role at issue is based on the City's status as the owner of the Unit and a "property control operation." Id. (
COUNT VII: RETALIATORY CONDUCT
Pursuant to Fla. Stat. § 83.64(1):
Section 83.64(1). Plaintiffs aver that CHR, as the City's agent, threatened to evict the Floyds in retaliation for the Floyds' complaints. (
COUNT VIII: NEGLIGENCE
A cause of action for negligence has four elements: "(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff's injury; and (4) the plaintiff suffered actual harm." Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (citations omitted)). In this action, the City acted in a private capacity as the Unit owner, and as such, owed a duty to "properly maintain and operate the property." Green, 752 So. 2d at 701; see also City of Jacksonville, 544 So. 2d at 192. (
4. COUNT IX: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The City argues that the Floyds' intentional infliction of emotional distress claim is barred by sovereign immunity pursuant to Fla. Stat. § 768.28(9)(a). The Court agrees.
"Florida courts have long recognized that Fla. Stat. § 768.28(9)(a) . . . bars claims for both intentional infliction of emotional distress" against "the State and its subdivisions." Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1330 (11th Cir. 2015) (citation omitted)); see also Thomas v. City of Palm Coast, 3:14-cv-172-J-32PDB, 2015 WL 7429051, at *4 (M.D. Fla. Nov. 23, 2015). The "reckless conduct" essential to such a claim mirrors "willful and wanton conduct under section 768.28(9)." Williams v. City of Minneola, 619 So.2d 983, 986 (Fla. 5th DCA 1993). (
E. PRE-SUIT NOTICE
The City argues that the Floyds have not satisfied Fla. Stat. § 768.28(6)(a), which requires pre-suit notice for tort claims against "the state or one of its agencies or subdivisions." (
F. PUNITIVE DAMAGES
The City asserts one cannot recover punitive damages from municipalities. See Fla. Stat. § 768.28(5). (
Accordingly, it is now
Defendant City of Sanibel's Motion to Dismiss Counts I through IX of Plaintiffs' First Amended Complaint (