Case 9:22-cv-81056-DMM Document 1 Entered on FLSD Docket 07/19/2022 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`Case No.
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`
`
`
`368 E 148TH STREET ASSOCIATES, LLC,
`a New York Limited Liability Company,
`and SINGER ISLAND HEALTH, LLC, a
`Florida limited liability company,
`
`Plaintiffs,
`
`
`v.
`
`CITY OF RIVIERA BEACH, a
`Florida municipal corporation,
`
`
`Defendant.
`
`
`
`COMPLAINT
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`Plaintiffs, 368 E 148TH STREET ASSOCIATES LLC, a New York Limited Liability
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`
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`Company, and SINGER ISLAND HEALTH, LLC, a Florida Limited Liability Company,
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`(“Plaintiffs” or “368 East” and “Singer Island Health,” respectively), file this action seeking
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`declaratory, injunctive and monetary relief against Defendant, CITY OF RIVIERA BEACH
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`(“City” or “Riviera Beach”), and allege:
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`1.
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`Plaintiffs assert claims under Florida law for estoppel and under the Americans with
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`Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), Federal Fair Housing Act, 42 U.S.C. § 3601
`
`et seq. (“FHA”), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 793 (“Section 504”)
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`(collectively, the “Acts”). Specifically, the City is estopped from nullifying the reasonable
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`accommodations it granted to 368 East in 2018 to allow sober living and substance use disorder
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`treatment at contiguous properties in the City (the “Property”), because 368 East invested
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`hundreds of thousands of dollars in reliance on those reasonable accommodations. The City also
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`violated the Acts when it discriminated against Plaintiffs by: (a) refusing to approve business tax
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`receipts (“BTRs”) for three of the nine properties whose addresses are listed below in ¶14 for
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`which reasonable accommodations had been granted; (b) arbitrarily and discriminatorily
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`manufacturing and imposing a 1,200-foot spacing requirement without basis in state law or City
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`ordinance; (c) engaging in a pattern of ignoring its obligations under the ADA, FHA and Section
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`504; (d) engaging in intentional discrimination under those laws; (e) reneging on a settlement of a
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`lawsuit to grant a reasonable accommodation for three of the eight properties for which reasonable
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`accommodations were granted; and (f) engaging in bad faith attempts to resolve this dispute. Such
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`illegal discrimination resulted (and continues to result) in both irreparable harm and pecuniary
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`damage to the Plaintiffs.
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`2.
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`Plaintiffs offer housing for residents suffering from substance use disorders at 1166
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`East Blue Heron Boulevard, Riviera Beach, Florida, and also provide substance use disorder
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`treatment at that Property.
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`
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`3.
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`Plaintiffs’ residents are persons recovering from substance use disorders who need
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`quality housing and treatment befitting their needs during their transition from rehabilitation to
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`integrated community living. As people in active recovery, Plaintiffs’ residents are disabled under,
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`and entitled to the protections of, the Acts.
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`4.
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`Plaintiffs also challenge the City’s refusal to grant their request for a zoning
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`verification or a reasonable accommodation to allow them to provide housing to their disabled
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`residents.
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`JURISDICTION AND VENUE
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`5.
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`This action is brought pursuant to Florida law, the ADA, FHA and Section 504 of
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`the Rehabilitation Act.
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`2
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`6.
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`This Court has jurisdiction over the federal claims pursuant to 28 U.S.C. §§ 1331,
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`1337, 1343(a) and 1391(b)(2), 29 U.S.C. § 794(a) and 42 U.S.C. § 12182(a) and over the Florida
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`law estoppel claim pursuant to 28 U.S.C. § 1367.
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`7.
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`Venue lies in the Southern District of Florida pursuant to 28 U.S.C. § 1391.
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`8.
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`Plaintiff, 368 E 148th Street Associates LLC, is a New York limited liability
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`PARTIES
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`corporation.
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`9.
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`Plaintiff, Singer Island Health Health, LLC, is a Florida limited liability
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`corporation.
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`10.
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`Singer Island Health is a treatment provider that meets the standards for inpatient
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`and outpatient treatment and will be licensed in accordance with Chapter 397, Fla. Stat., by the
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`Florida Department of Children & Families (“DCF”) to provide substance use disorder services.
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`As a condition of licensure, DCF requires Singer Island Health and other licensees to provide proof
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`that their facilities are properly zoned.
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`11.
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`12.
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`13.
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`Plaintiffs sue on their own behalf and on behalf of their residents.
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`The City of Riviera Beach is a Florida municipal corporation.
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`The City receives federal financial assistance for its programs and activities and has
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`the capacity to sue and be sued under the federal anti-discrimination statutes relied upon by
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`Plaintiffs.
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`FACTS
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`14.
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`368 East owns property in Palm Beach County, Florida that is within the municipal
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`limits of the City and bears the street address of 1166 East Blue Heron Boulevard. In addition, it
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`owns eight other adjacent properties located at 2621 Park Avenue, 2631 Park Avenue, 2633 Park
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`3
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`Avenue, 2622 West Way, 2634 West Way, 2636 West Way, 1165 Cabana Road, and 1191 Cabana
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`Road (collectively, the “Property”).
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`15.
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`The City is responsible for regulating all land use and development within its
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`boundaries pursuant to § 163.3167(1), Fla. Stat.
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`16.
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`In 2017, 368 East was approached by multiple tenants who were interested in
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`developing the Property to offer “residential treatment” and/or “detoxification services” as the
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`terms are defined in §§ 397.311(26)(a)(9) and 397.311(26)(a) (4), Fla. Stat., respectively. Although
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`the tenants had conversations with the City’s Zoning Staff regarding developing the Property to
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`offer a residential treatment and/or detoxification services land use, the tenants were not able to
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`confirm whether these land uses were permitted at the Property.
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`368 East’s 2018 Requests for Accommodation, Prior Federal Litigation,
`the Settlement of that Litigation with the Granting of the Requests,
`and the City’s Zoning Verifications to DCF
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`On January 29, 2018, Plaintiffs’ zoning attorney (not the undersigned)
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`17.
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`electronically transmitted a letter, attached and incorporated as Exhibit A (the “First Letter”), on
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`behalf of 368 East to the City’s counsel and requested the opportunity to discuss, amongst other
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`things, whether a residential treatment and detoxification services land use could be permitted at
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`1166 East Blue Heron Boulevard. The City did not respond to 368 East’s First Letter.
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`18.
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`The City’s then Acting Director of Community Development, Jeff Gagnon,
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`thereafter, indicated that the proposed use (Residential Detox) was prohibited from operating
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`within 1000 feet of another residential drug and alcohol facility, based upon the separation
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`requirements set forth in Chapter 419, Fla. Stat., which applies to Community Residential Homes.
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`That assertion was incorrect for two reasons. First, it was plainly incorrect because §
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`419.001(1)(a), Fla. Stat., defines a Community Residential Home as applying to residents who are
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`4
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`clients of DCF, which Plaintiffs’ residents are not. See Exhibit A at 002-006. Second, separation
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`requirements that apply only to people with disabilities but not to the non-disabled are
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`discriminatory on their face under the Acts.
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`19.
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`Zoning confirmation letters are typically requested by property owners and third
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`parties from local governments for title insurance, due diligence in real estate transactions, and
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`statutory purposes (the Department of Children and Families, which licenses substance use
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`disorder treatment facilities to provide proof of zoning verification from a local government such
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`as the City confirming that the use is allowed at a site for the issuance of a license) in order to
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`confirm that specific land uses may lawfully occur at properties within the local government’s
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`jurisdiction.
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`20.
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`On February 20, 2018, Plaintiffs’ zoning counsel electronically transmitted another
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`letter on behalf of 368 East to the City’s then attorney (the “Second Letter”) and formally requested
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`confirmation of whether residential treatment and detoxification services, a recovery residence, or
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`a professional (medical) office (the “Proposed Uses”) were permissible at the Property.
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`Confirmation was requested in the form of a zoning confirmation letter. The Second Letter stated
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`that if the City did not reply within ten days of receipt, 368 East would consider its request denied.
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`The City did not respond to the Second Letter.
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`21.
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`On March 19, 2018, the undersigned attorney sent the City a request for reasonable
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`accommodation under the ADA and FHA, which is attached hereto as Exhibit C (“Reasonable
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`Accommodation Request”).
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`22.
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`The City did not respond to, or acknowledge, the Reasonable Accommodation
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`Request, effectively denying 368 East’s requests. (The City did ask for a draft zoning verification
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`letter, which 368 East provided, but the City did not act on that either.)
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`23.
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` On April 27, 2018, 368 East sent a draft federal complaint to the City Manager,
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`asking:
`
`Please have the City execute the proposed zoning verification letter by
`Monday at 5 p.m. or my client will file the attached federal lawsuit.
`The solution is so simple.
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`Exhibit D. The City refused to act, or even provide a date and time when it would respond.
`
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`24.
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`On May 1, 2018, 386 East filed a lawsuit, 368 E 148th Street Associates, LLC v.
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`City of Riviera Beach, Case No. 18-cv-80565 (Rosenberg), in this Court (S.D. Fla.), challenging,
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`among other things, the City’s refusal to grant a reasonable accommodation, and seeking damages
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`and declaratory and injunctive relief based upon the conduct alleged above.
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`25.
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`Immediately thereafter, the then-City Attorney, Andy DeGraffenreidt, agreed to get
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`the reasonable accommodation request granted and the zoning verification letter issued in
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`exchange for Plaintiffs dropping their lawsuit.
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`26.
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`On or about May 3, 2018, the City’s Acting Director of Community Development,
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`Mr. Gagnon, granted the reasonable accommodation request and issued the zoning verification
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`letter as to 1166 East Blue Heron Boulevard. Exhibit D. On or about May 28, 2018, 368 East filed
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`a Notice of Voluntary dismissal without prejudice.
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`27.
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`Subsequently, Plaintiff 386 East requested reasonable accommodations and zoning
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`verifications as to its eight other adjacent properties located at 2621 Park Avenue, 2631 Park
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`Avenue, 2633 Park Avenue, 2622 West Way, 2634 West Way, 2636 West Way, 1165 Cabana Road,
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`and 1191 Cabana Road, which was granted on August 16, 2018. Id.
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`368 East and Singer Island Health’s Reliance on the Granting of the
`Reasonable Accommodation Request and the Zoning Verification Letter
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`6
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`28.
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`In reliance on the granting of the reasonable accommodation request and the zoning
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`verification letter in exchange for dropping the lawsuit, 368 East pulled various permits and
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`undertook a total renovation of buildings in need, spending hundreds of thousands of dollars.
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`29.
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`On or about June 2021, Singer Island Health, as the treatment provider, entered into
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`a 20-year lease with 368 East, also in reliance on the granting of the reasonable accommodation
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`request and the zoning verification letter, and expended hundreds of thousands of dollars in staff
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`and other expenses.
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`30.
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`On or about June 2021, Singer Island Health applied for and received business tax
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`receipts (“BTRs”) on five of the eight properties referenced in the reasonable accommodation
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`request and the zoning verification letter. BTRs are local tax receipts which allow businesses such
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`as Singer Island Health to operate businesses, including group homes, on the Property, and
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`issuance of BTRs requires proof of zoning, which Plaintiffs received pursuant to the reasonable
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`accommodations and zoning verification letters described above.
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`31.
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`As to the remaining three properties referenced in the reasonable accommodation
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`request and the zoning verification letter, Singer Island Health chose to wait on applying for
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`business tax receipts until it was able to get its business up and running.
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`32.
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`In November 2021, Singer Island Health submitted business tax receipt
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`applications to do business at 2622 West Way, 2634 West Way and 2636 West Way, which the City
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`had previously issued in 2019 and 2020 based on the reasonable accommodations and zoning
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`verification letters.
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`33.
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`The City has refused to issue business tax receipts on these three properties,
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`claiming again that these buildings are within 1,200 feet of the existing buildings. Exhibit E,
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`February 22, 2022 Memorandum from Clarence Sirmons, the City’s Director of Developmental
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`7
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`Services. (This was the same false, pretextual justification asserted prior to the 2018 lawsuit and
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`was not asserted in June 2021 when the City issued five business tax receipts to operate on the first
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`five properties, which are also contiguous). The City also arbitrarily misclassified 2622 West Way,
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`2634 West Way and 2636 West Way as “CLFs.”
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`34. Mr. Sirmons referenced a 1,200-foot separation requirement for community
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`residential homes of seven to 14 residents, and Mr. Gagnon referenced a 1,000-foot separation
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`requirement for community residential homes of six or under, both of which are set forth in §
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`419.001(2), Fla. Stat., for community residential homes.
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`35.
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`As noted above, Plaintiffs’ residences are not community residential homes subject
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`to the 1,200-foot spacing requirement of § 419.001, Fla. Stat., because the Plaintiffs’ residents are
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`not clients of DCF, AHCA or any other state agency referenced in that statute.
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`36.
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`Nor is there a City ordinance that requires a 1,200-foot or other spacing
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`requirement. Even if there were, the great weight of federal case law holds that such spacing
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`requirements that apply only to providers of services for people with disabilities violate the ADA
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`and FHA.
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`Plaintiffs’ Attempts to Resolve This Dispute Amicably
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`37.
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`Since February 22, 2022, Plaintiffs have attempted to resolve this dispute with the
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`City amicably.
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`38.
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`The following is a summary of Plaintiffs’ recent attempts to resolve this dispute:
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`On April 1, 2022, a scheduled meeting between Clarence
`a.
`Sirmons (City’s Development Director), Dawn Wynn (City
`Attorney), and Plaintiffs was cancelled at the City’s request; no
`explanation was given; Plaintiffs suggested re-scheduling for April
`4, 2022.
`On April 4, 2022, a scheduled meeting with Mr. Sirmons and
`b.
`Ms. Wynn was cancelled at the City’s request, re-scheduled for
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`8
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`April 6, 2022, and again cancelled at City’s request; it was re-
`scheduled for April 7, 2022.
`On April 7, 2022, Plaintiffs finally met with Mr. Sirmons
`c.
`and Ms. Wynn. Singer Island Health stated that as a result of the
`City’s refusal to issue the BTRs, it is losing more than $300,000 per
`month, and Plaintiffs are not able to treat many patients who need
`treatment. Plaintiffs asked for a response in 10 days.
`When Plaintiffs’ counsel returned to the office from the
`d.
`meeting, he sent Mr. Sirmons the following:
`Dear Clarence,
`I hope today’s discussion was helpful.
`As requested, here are the key background documents:
`The letter to Andy [DeGraffenreidt, former City Attorney
`who was sent the original reasonable accommodation
`request] from Justin Claud, one of my co-counsel, attaching
`the letter from Len Rubin, Village Attorney from North Palm
`Beach, explaining why the Ch. 419, Fla. Stat. 1,200 feet
`spacing requirement doesn’t apply to facilities that don’t
`treat or house clients of DCF and other state agencies;
`The reasonable accommodation request from 368 E. 148th
`Street Associates, LLC to the City;
`The federal lawsuit (without exhibits); and
`The zoning verification letters granting the reasonable
`accommodation request.
`The zoning verification letter effectuated the settlement of
`the lawsuit. Nothing more should be required of my clients.
`My clients will, however, consider voluntarily providing you
`with a site plan for information purposes only, but not if it
`requires any approvals.
`My client is losing substantial revenues every month due to
`the City’s failure to honor the reasonable accommodation
`provided by your predecessor.
`I trust we can resolve this matter within 10 days by
`approving BTRs for the properties listed in the zoning
`verification letter that were not approved in Ms. Savage
`Dunham’s letter dated May 21, 2021.
`Please call with any questions.
`Thank you for your anticipated cooperation.
`Regards,
`Jim
`On April 11, 2022, Mr. Sirmons responded:
`
`e.
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`9
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`f.
`
`g.
`
`Thank you for sending. I am having trouble finding the
`reasonable accommodation request. Could you help
`me locate that within these documents?
`Clarence
`On April 12, 2022, Plaintiffs’ counsel responded:
`Clarence,
`I believe this was included in the docs I sent you Friday.
`Jim
`On April 28, 2022, Ms. Wynn emailed:
`Hi Jim,
`After review of the materials you forwarded to us, we have
`scheduled an internal meeting for late next week and plan to have a
`response to you the week of May 9th.
`Thank you for your patience.
`Best Regards,
`Dawn S. Wynn, Esq.
`City Attorney
`On May 11, 2022, Plaintiffs’ counsel emailed Ms. Wynn:
`h.
` Dawn,
`
`
`Where are we?
`
`Jim
`i.
`Ms. Wynn responded:
`
`Hi Jim,
`We’ll have a response to you today or tomorrow.
`Best Regards,
`Dawn S. Wynn, Esq.
`City Attorney
`On May 11, 2022, no response was received.
`On May 13, 2022, no response was received. Plaintiffs’
`counsel called Ms. Wynn and left a message, but counsel’s
`call was never returned.
`As of May 20, 2022, no response had been received. It had
`now been over six (6) weeks since the parties’ meeting on
`April 7th.
`Finally, on May 24, 2022, the City responded by stating that
`the “Development Services Department will not be altering
`its decision to deny the issuance of the BTRs” and
`specifically referenced “Mr. Sirmons’ [February 22, 2022]
`denial letter pertaining to the BTRs for the Properties, which
`letter shall continue to articulate the City’s decision
`regarding those circumstances utilized in issuing a denial
`to the Applicant for the BTRs at the Properties.”
`(emphasis added).
`
`j.
`k.
`
`l.
`
`m.
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`n.
`
`The City’s May 24, 2022 letter also specifically referenced
`the February 22, 2022 Memorandum from Clarence
`Sirmons, the City’s Director of Developmental Services,
`which included reference to the inapplicable Chapter 419,
`Fla. Stat.’s 1,000-foot separation requirement, which was the
`same false, pretextual justification asserted prior to the 2018
`lawsuit and which was not asserted in June 2021 when the
`City issued five business tax receipts to operate on the first
`five properties, which are also contiguous. Exhibit G.
`
`(bolded emphasis added).
`
`
`The City’s History of Discrimination Against
`Substance Use Disorder Treatment Providers and Their Patients
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`The City has a history of intentional discrimination against substance use disorder
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`39.
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`treatment providers. Since 2018, the Property has been used for land uses associated with sober
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`living and substance use disorder treatment.
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`40.
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`City staff has attempted to prevent substance use disorder treatment facilities in the
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`past by claiming that there is an elevated police call history at other locations, but later conceding
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`that there were no comparable statistics on whether these “police stats” were elevated compared
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`to other residential zoning.
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`41.
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`The City’s Planning and Zoning Board repeatedly received “NIMBY” (“Not In My
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`Backyard”) comments from various citizens opposing applications for substance use disorder
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`treatment facilities and housing, such as the following: “it’s right near a nicer neighborhood,”
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`“God forbid if these patients are out one day or night or whatever and they get in trouble at local
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`businesses and . . . drive away business,” “I have grandchildren that live two doors down,” “[a]s
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`residents, we believe these facilities should be located in a commercially zoned location,” “[we
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`don’t want] our lovely city [to be] defined as a mecca for drug abuse centers,” “[w]e are concerned
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`with the impact on our property values,” “we have a problem on the island [Singer Island]. Not
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`only does Riviera Beach have it, but our friends just south of the island also have a problem. If we
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`don’t get a hold of this, then it starts right here. It starts right here,” and “We don’t need this facility
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`in our residential area, an area that has children.”
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`42.
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`The City Commission itself has a similar history of discrimination. In 2011, it
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`enacted a “one-year moratorium as to the filing, receiving, and/or processing of any application
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`for the establishment of a substance abuse service facility,” expressly targeting substance use
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`disorder service providers licensed pursuant to Chapter 397, Fla. Stat. The moratorium ordinance
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`facially discriminated against substance use disorder service providers but not other medical
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`providers.
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`Further Allegations
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`43.
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`There is an actual and bona fide dispute between the City and Plaintiffs regarding
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`the three properties for which the City is refusing to issue BTRs.
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`44.
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`Plaintiffs have a justiciable question and a bona fide, actual, and present need for a
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`declaratory judgment regarding their legal and property rights in the face of the City’s inaction.
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`45.
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`Absent the grant of a permanent injunction by this Court, Plaintiffs are in doubt as
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`to their legal rights, status, power, and privilege as property owners, residents, and constituents of
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`the City.
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`46.
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`A declaration of Plaintiffs’ rights concerns a present, ascertained state of facts, and
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`the relief sought is not merely the giving of legal advice or obtaining the answer to questions
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`propounded from curiosity.
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`47.
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`All parties with an interest in the facts and this dispute are presently before the
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`Court.
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`48.
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`Singer Island Health is suffering in excess of $300,000 per month in lost revenues
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`as a result of the City’s wrongful actions.
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`Statutory and Regulatory Framework
`
`FHA:
`---
`49.
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`
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`In 1988, Congress amended the FHA, 42 U.S.C. § 3601 et seq., to extend the
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`guarantee of fair housing to handicapped individuals. Congress also authorized the Secretary of
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`the United States Department of Housing and Urban Development to promulgate regulations to
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`implement the FHA. 42 U.S.C. § 3614a.
`
`Under the FHA, the term “handicap” means, with respect to a person, a “physical or mental
`impairment which substantially limits one or more of such person’s major life activities, a
`record of such an impairment, or being regarded as having such an impairment.” 42 U.S.C.
`§ 3602(h). The term “physical or mental impairment” includes “alcoholism” and “drug
`addiction (other than addiction caused by current, illegal use of a controlled substance).”
`
`24 C.F.R. § 100.201.
`
`50.
`
`Under the FHA, it is unlawful to discriminate against or otherwise make
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`
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`unavailable or deny a dwelling to any buyer or renter because of a handicap of that buyer, renter,
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`or person residing in or intending to reside in that dwelling after it is sold, rented, or made
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`available. 42 U.S.C. § 3604(f)(1).
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`
`
`51.
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`The FHA further provides that it is unlawful to discriminate against any person in
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`the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services
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`or facilities about such dwelling because of the handicap of that person or persons residing in or
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`intending to reside in that dwelling after it is sold, rented, or made available. 42 U.S.C. §
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`3604(f)(2).
`
`
`
`52.
`
`The federal regulations implementing the FHA specifically prohibit, as a
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`discriminatory activity, providing municipal services differently because of handicap. 24 C.F.R. §
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`100.70(d)(4).
`
`53.
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`The federal regulations further make it unlawful, because of handicap, “to restrict
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`or attempt to restrict the choices of a person by word or conduct in connection with seeking,
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`negotiating for, buying or renting a dwelling so as to . . . discourage or obstruct choices in a
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`community, neighborhood or development.” 24 C.F.R. § 100.70(a).
`
`ADA:
`---
`54.
`
`Congress’s stated broad goal in enacting the ADA was to provide “a clear and
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`comprehensive national mandate for the elimination of discrimination against individuals with
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`disabilities.” 42 U.S.C. § 12101(b)(1).
`
`55.
`
`Section 12132 of the ADA constitutes a general prohibition against discrimination
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`on the basis of disability by public entities:
`
`[S]ubject to the provisions of 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.
`
`56.
`
`Zoning is an activity covered under Title II of the ADA. In the preamble to the
`
`regulations implementing 42 U.S.C. § 12132, the United States Department of Justice notes that
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`“[T]itle II applies to anything a public entity does,” 28 C.F.R. pt. 35, app. A at 438 (1998), and, in
`
`the Technical Assistance Manual compiled to interpret the ADA, expressly uses zoning as an
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`example of a public entity’s obligation to avoid discrimination.
`
`57.
`
`The federal regulations implementing the ADA prohibit a public entity from
`
`discriminating against a qualified individual with a disability by administering a licensing program
`
`in a manner that subjects qualified individuals with disabilities to discrimination based on
`
`disability. A public entity is further prohibited from establishing requirements for the programs
`
`or activities of licensees that subject qualified individuals with disabilities to discrimination based
`
`on disability. 28 C.F.R. § 35.130(6).
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`Case 9:22-cv-81056-DMM Document 1 Entered on FLSD Docket 07/19/2022 Page 15 of 19
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`58.
`
`The federal regulations also make it unlawful for a public entity to make
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`determinations about the site or location of a facility where such determinations have the purpose
`
`or effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise
`
`subjecting them to discrimination with respect to those facilities. 28 C.F.R. § 35.130(4)(i).
`
`59.
`
`Because of the City’s discriminatory refusal to issue BTRs as to the Property,
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`Plaintiffs have expended time and financial resources and have lost the opportunity to conduct
`
`their business and provide a much-needed service.
`
`Section 504:
`
`60.
`
`Congress intended that individuals seeking to overcome their addiction would be
`
`protected by the Rehabilitation Act when seeking access to services, benefits, and employment
`
`provided by a federally-funded program. The Rehabilitation Act specifically recognizes as
`
`handicapped those individuals with drug addiction who are “participating in a supervised
`
`rehabilitation program and [are] no longer engaging [in the illegal use of drugs].” 29 U.S.C. §
`
`706(8)(C)(ii)(II).
`
`61.
`
`Section 504 of the Rehabilitation Act prohibits discrimination against persons with
`
`disabilities by any entity that receives federal financial assistance:
`
`no otherwise qualified individual with a disability . . . shall, solely by reason of her
`or his disability, be excluded from the participation in, be denied the benefits of, or
`be subjected to discrimination under any program or activity receiving Federal
`financial assistance . . .
`
`29 U.S.C. § 794(a).
`
`62.
`
`Because the Rehabilitation Act broadly defines “program or activity” to include
`
`“all of the operations of a local government receiving federal financial assistance,” 29 U.S.C. §
`
`794(b)(1)(A) (1999), zoning, a normal function of a governmental entity, is a covered activity
`
`within the meaning of the Act.
`
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`Case 9:22-cv-81056-DMM Document 1 Entered on FLSD Docket 07/19/2022 Page 16 of 19
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`Count I: Permanent Injunctive Relief Based Upon Equitable Estoppel
`
`63.
`
`Plaintiffs incorporate by reference the allegations contained in paragraphs 1
`
`through 48.
`
`
`
`64.
`
`In good faith reliance upon the City of Riviera Beach’s express assurances that
`
`reasonable accommodations had been granted as to the subject properties, as authorized by federal
`
`law, and that the proposed uses referenced therein were permitted uses of the Property, 386 East
`
`and Singer Island Health have suffered prejudice by making substantial changes in their positions
`
`and by incurring extensive obligations and expenses that it would be wrongful and unjust to destroy
`
`the rights they have acquired.
`
`65.
`
`Plaintiffs have vested rights to facilities on the Property to provide substance use
`
`disorder treatment and housing as authorized by Florida law. The City is equitably estopped from
`
`now denying Plaintiffs’ rights after the City’s issuance of BTRs to operate the intended facilities,
`
`the City’s granting of the reasonable accommodations, and the City’s issuance of zoning
`
`verifications letters in 2018.
`
`66.
`
` The City has targeted Plaintiffs and refused to issue BTRs in order to retroactively
`
`destroy Plaintiffs’ vested rights, causing Plaintiffs prejudice and irreparable harm.
`
`67.
`
`Plaintiffs have no adequate remedy at law to redress the irreparable harm that they
`
`have suffered and will suffer should injunctive relief be denied.
`
`68.
`
`The issuance of the injunctive relief requested by Plaintiffs does not disserve the
`
`public interest.
`
`Count II: Claims under Title II of the ADA
`
`69.
`
`Plaintiffs incorporate by reference the allegations contained in paragraphs 1
`
`through 48 and 54 through 59.
`
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`Case 9:22-cv-81056-DMM Document 1 Entered on FLSD Docket 07/19/2022 Page 17 of 19
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`70.
`
`Plaintiffs’ prospective residents are qualified individuals with disabilities within the
`
`meaning of 42 U.S.C. § 12101.
`
`71.
`
`The City is a qualifying public entity within the meaning of the ADA. 42 U.S.C. §
`
`12131(1)(A).
`
`72.
`
`The City’s application of its zoning code to prevent use of the Property by
`
`Plaintiffs’ residents, as well as its refusal to honor the reasonable accommodations to its zoning
`
`code previously granted and its refusal to issue the requested BTRs, constitute discrimination
`
`under Title II of the ADA. The City’s actions were also taken with the intent to discriminate
`
`against and had the effect of discriminating against persons in recovery and those who provide
`
`services to them, namely Plaintiffs and their residents.
`
`73.
`
`Because of the City’s discriminatory response to the Plaintiffs’ suggested use and
`
`the illegal behavior that resulted from that response, Plaintiffs have expended significant time and
`
`financial resources and have lost the opportunity to conduct their business and provide a much-
`
`needed service.
`
`Count III: Fair Housing Act
`
`74.
`
`Plaintiffs incorporate by reference paragraphs 1 through 53 above as though fully
`
`set out herein.
`
`75.
`
`The City’s application of the zoning code (including its refusal to issue the
`
`requested BTRs based upon its refusal to honor previously-granted reasonable accommodations
`
`and zoning verifications constitute discrimination under the FHA. The City has effectively made
`
`housi