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`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`____________________
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`No. 20-13444
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`SAILBOAT BEND SOBER LIVING, LLC,
`a Florida limited liability company,
`CARL BERGSTROM,
`an individual,
`IRYNA BERGSTROM,
`an individual,
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` Plaintiffs-Appellants,
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`versus
`THE CITY OF FORT LAUDERDALE, FLORIDA,
`a political subdivision of the State of Florida,
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` Defendant-Appellee.
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`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`No. 20-13444
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`SAILBOAT BEND SOBER LIVING, LLC,
`a Florida limited liability company,
`CARL BERGSTROM,
`an individual,
`IRYNA BERGSTROM,
`an individual,
`
` Plaintiffs-Appellants,
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`versus
`THE CITY OF FORT LAUDERDALE, FLORIDA,
`a political subdivision of the State of Florida,
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` Defendant-Appellee.
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`Opinion of the Court
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`20-13444
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`____________________
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`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 0:19-cv-60007-RKA
`____________________
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`Before JORDAN, JILL PRYOR, and MARCUS, Circuit Judges.
`MARCUS, Circuit Judge:
`
`Sailboat Bend Sober Living, LLC (“Sailboat Bend”), a for-
`profit sober living home in Fort Lauderdale, Florida, houses up to
`eleven people recovering from addiction who support each other
`in their sobriety. But it has had trouble complying with the City of
`Fort Lauderdale (“the City”)’s Building and Fire Codes (collec-
`tively, “Codes”) and the City’s recently enacted Zoning Ordinance.
`
`Sailboat Bend, along with its part-owners Carl and Iryna
`Bergstrom, have brought several claims under the Fair Housing
`Act and Amendments (“FHA”) and the Americans with Disabilities
`Act (“ADA”) against the City in the Southern District of Florida.
`Essentially, they allege that the City’s code enforcement decisions
`were motived by hostility to the disabled, their accommodation re-
`quest was wrongfully denied, and the Zoning Ordinance was fa-
`cially discriminatory against people with disabilities.
`We conclude, as the district court did earlier, that the Zon-
`ing Ordinance does not discriminate against the Plaintiffs. Rather,
`it works to their decided benefit. Moreover, no evidence has been
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`Opinion of the Court
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`adduced to show that the City enforced its Codes in a manner that
`discriminates on the basis of a disability. Finally, the Plaintiffs’ re-
`quested accommodation on account of disability was not neces-
`sary.
`
`Accordingly, we affirm the entry of final summary judgment
`for the City on all counts.
`
`I.
`These are the essential facts taken in a light most favorable
`to Sailboat Bend. Plaintiff Sailboat Bend is owned, in a fifty-fifty
`partnership with another family, by Plaintiffs Carl Bergstrom and
`his wife Iryna Bergstrom. In March 2008, the Bergstroms pur-
`chased the property at 1110 SW 1st Street, Fort Lauderdale, Florida
`(“Property”) for $144,000. They operate Sailboat Bend as a busi-
`ness that offers housing to people addicted to alcohol and other
`drugs. Since the business’s inception in 2008, the owners have
`charged $150 per tenant per week. The tenants generally pay their
`rent in cash. The typical stay lasts no more than a few weeks or
`months.
`At the time of the purchase, the Property was in disarray and
`the Bergstroms spent three months renovating it. Throughout the
`renovations, the Property’s basic structure remained the same: a
`main building comprised of nine bedrooms, two bathrooms, one
`kitchen, and one living room; and a detached structure comprised
`of a single bedroom and bathroom. The Bergstroms claim “full
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`occupancy” of the Property is eleven tenants, although occupancy
`rates have fluctuated markedly over the years.
`The relationship between the Plaintiffs and the City turned
`sour in April 2012, when the City investigated a citizen’s complaint
`about the conditions at the Property and, subsequently, com-
`menced two Building Code enforcement actions. The one relevant
`to this appeal was for “unpermitted work” on the Property, includ-
`ing the installation of a central air conditioning (“AC”) unit. Be-
`cause there was no after-the-fact permit that would render the AC
`unit compliant with the Building Code, Bergstrom ultimately de-
`cided to remove the unit because a new system would have been,
`in his words, “outrageously expensive.”
`During this time frame, a Fire Inspector examined the Prop-
`erty and identified several significant code violations that required
`correction. Most importantly, the report pointed out that the
`Property’s “use” was “under research” to determine which fire
`code applied, and explained that “[a]fter the use has been defined
`there will be other fire and life safety requirements that will have
`to be met[.]” Doc. 54 ¶ 28. There are different “uses” that deter-
`mine the applicable fire code. The uses are defined in the National
`Fire Protection Association’s Life Safety Code (“Fire Code”), and
`are incorporated into Florida law. See FLA. STAT. § 633.202(2).
`These are the uses:
`1) One- and Two-Family Dwellings are defined as
`“buildings containing not more than two dwelling
`units in which each dwelling unit is occupied by
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`members of a single family with not more than three
`outsiders, if any, accommodated in rented rooms.”
`Fire Code § 24.1.1.2 (2012).
`
`2) Lodging or Rooming Houses are defined as “build-
`ings that provide sleeping accommodations for 16 or
`fewer persons on either a transient or permanent ba-
`sis, with or without meals, but without separate cook-
`ing facilities for individual occupants.” Id. § 26.1.1.1.
`
`3) Residential Board and Care Occupancies are de-
`fined as “occupanc[ies] used for lodging and boarding
`of four or more residents, not related by blood or
`marriage to the owners or operators, for the purpose
`of providing personal care services.” Id. § 3.3.190.12.
`
`In short, one- and two-family dwellings house three or fewer
`unrelated persons; the other uses house more than three. Notably,
`one- and two-family dwellings do not require an automatic sprin-
`kler system, while the other two uses do. See FLA. STAT. §
`633.208(8)(a).
`
`Days after the initial inspection of the Property, the Fire In-
`spector conducted a follow-up inspection, concluded that the Prop-
`erty should be classified as a “Lodging or Rooming House,” and
`issued a new report observing the absence of “an approved auto-
`matic sprinkler system.” Doc. 54 ¶ 30 (quotation marks omitted).
`The new report said that the City would reinspect the Property
`within thirty days. Although the parties agree that reinspection
`never occurred, they disagree about the reason.
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`After the 2012 Building and Fire Code enforcement actions,
`the Plaintiffs’ battles with the City abated for several years. During
`that time, they pushed to expand their business. The Plaintiffs
`hoped their investments would allow them to raise the residents’
`rents and market the home to a new group of residents -- young
`opioid addicts.
`Some five years later, on May 5, 2017, the Fire Inspector told
`Bergstrom that the Property was not being used as a single-family
`dwelling; rather, it was either a Residential Board and Care Occu-
`pancy or a Rooming House. The Fire Inspector explained that, un-
`der either classification, the Fire Code would apply to the Property,
`and as a result, Sailboat Bend would have to install an automatic
`sprinkler system. Bergstrom estimated that a new fire sprinkler
`system would cost between $30,000 and $40,000.
`
`At a July 25, 2017 hearing, the Code Enforcement Board
`found two Building Code violations: the building had blocked
`emergency escape routes; and, the Plaintiffs had performed unper-
`mitted and un-inspected work. In a separate order, the Code En-
`forcement Board found ten Fire Code violations. Some of the most
`egregious violations included a lack of compliant smoke alarms, no
`fire alarm system, and no approved emergency evacuation plan.
`Both orders required the Plaintiffs to remedy the violations by Au-
`gust 22, 2017.
`Five days before the deadline, the Plaintiffs’ out-of-state at-
`torney, Stephen Polin, sent an Assistant City Attorney a letter enti-
`tled “Reasonable Accommodation Request” (the “Letter”). The
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`Plaintiffs appeared to ask for two accommodations, both of which
`sought to avoid the installation of an automatic sprinkler system.
`As for the first “accommodation,” the Letter asked the City to
`waive the limitations on the maximum number of unrelated per-
`sons who could reside together as a family under the Fire Code and
`to treat the Property as having a single-family use (to which the
`Fire Code does not apply). As for the second “accommodation,”
`the Letter urged the City to “narrowly tailor[]” the Fire Code by
`“taking into account that the residents of Sailboat Bend are fully
`ambulatory, and are fully capable of responding to a fire emer-
`gency in the same manner as families and those related by blood,
`marriage, or adoption.” Doc. 61 ¶ 27. The Plaintiffs say that the
`City failed to respond to the Letter. The City claims that it ad-
`dressed the Letter at a public hearing.
`Ultimately, the Plaintiffs satisfied both the Building Code
`and the Fire Code -- largely by reducing the occupancy of Sailboat
`Bend to only three tenants. Reducing the home’s occupancy to
`three enabled the Plaintiffs to remedy the blocked-windows viola-
`tions by providing each occupant with a sleeping room that had,
`besides the door, at least one other means of escape. As for the Fire
`Code, by reducing the home’s occupancy to three, Sailboat Bend
`would qualify as a single-family home, and thereby obviate the
`need to install an automatic sprinkler system. See Fire Code §
`24.1.1.2 (defining single-family home as containing “not more than
`three outsiders”). The Fire Inspector also required the Plaintiffs to
`remove Sailboat Bend’s name from the Florida Association of
`
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`Recovery Residences (“FARR”)’s list of certified recovery resi-
`dences in order to ensure that the Property would fall within the
`definition of a single-family home.
`The final bone of contention arose from the subsequent cod-
`ification of Ordinance No. C-18-11, a zoning ordinance the City en-
`acted on April 17, 2018. See Doc. 55-17 (hereinafter “Zoning Ordi-
`nance”). Under the Zoning Ordinance, residential zoning districts
`are (mostly) limited to families. A “family” is defined as:
`One (1) or more persons living together and interre-
`lated by bonds of consanguinity, marriage or legal
`adoption, or a group of persons up to three (3) in
`number who are not so interrelated, occupying the
`whole or part of a dwelling as a single housekeeping
`unit, supplied with a kitchen or facilities for doing
`their own cooking on the premises, and who share
`common living facilities.
`
`Id. § 6 (emphases omitted). Groups of unrelated persons may also
`reside in the residential zoning districts -- so long as not more than
`three unrelated persons live together. Groups of more than three
`unrelated people generally may not live in the residential zoning
`districts.
`The City carved out an exception to the proscription that
`more than three unrelated people may not live together for one --
`and only one -- type of group home: those that serve residents with
`disabilities (as the Ordinance defines them, “Community Resi-
`dences”). Thus, while groups of more than three unrelated and
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`non-disabled persons are barred from living together in residential
`zones, groups of more than three unrelated and disabled persons
`may live together in residential zoning districts -- so long as their
`homes meet other specified requirements.
`A Community Residence may operate in a residential zone
`if it complies with the Zoning Ordinance’s provisions on “Family
`Community Residences” (longer-term homes for the disabled) or
`“Transitional Community Residences” (shorter-term homes for
`the disabled). A Family Community Residence is:
`a type of community residence that is a relatively per-
`manent living arrangement for more than three (3)
`unrelated people with disabilities with no limit on
`how long a resident may live in the home. The length
`of tenancy is measured in years.
`
`Id. § 6. A Transitional Community Residence, by contrast, is:
`a type of community residence that is a temporary liv-
`ing arrangement for more than three unrelated peo-
`ple with disabilities with a limit on length of tenancy
`that is measured in weeks or months, not years.”1
`
`
`1 The Zoning Ordinance defines a “disability” as:
`[a] physical or mental impairment that substantially limits one
`or more of an individual’s major life activities, impairs an indi-
`vidual’s ability to live independently, having a record of such
`an impairment, or being regarded as having such an impair-
`ment. People with disabilities do not include individuals who
`are currently using alcohol, illegal drugs, or using legal drugs
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`A licensed Family Community Residence may operate
`within all residential zoning districts -- with no conditions -- if the
`residence (1) houses between four and ten residents and (2) is lo-
`cated at least 1,000 feet from any other Community Residence. Id.
`§ 5. A licensed Transitional Community Residence is also permit-
`ted within multifamily zoning districts -- with no conditions -- if the
`residence (1) houses between four and ten residents and (2) is lo-
`cated at least 1,000 feet from any other Community Residence. Id.
`To help draft the Zoning Ordinance, the City retained Dan-
`iel Lauber, a city planning expert. As outlined in his report, the
`1,000-foot distance requirement is intended to, among other
`things, prevent the clustering of recovery homes, which may inter-
`fere with their ability to foster normalization and community inte-
`gration. But a Community Residence may still be allowed in a res-
`idential district, even if it fails the distance requirement, if it either
`(1) applies for, and receives, “reasonable accommodation” ap-
`proval or (2) agrees to certain “conditional use permit require-
`ments” -- namely, not interfering with the normalization and inte-
`gration of the existing residents of any community residence and
`
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`to which they are addicted, or individuals who constitute a di-
`rect threat to the health and safety of others.”
`
`Zoning Ordinance § 6.
`
`
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`not altering the residential character of the neighborhood. Zoning
`Ordinance §§ 2–3, 5.
`To summarize, Sailboat Bend is a sober living facility for in-
`dividuals recovering from addiction. The residents are considered
`“disabled” under federal and city law. After a series of Building and
`Fire Code violations and the denial of two accommodation re-
`quests, Sailboat Bend chose to reduce its occupancy to three people
`rather than make the required (albeit allegedly expensive) safety
`upgrades to the Property, so that it would meet the City’s standards
`for either a Residential Board and Care Occupancy or a Rooming
`House. Then, separate from the Code-related issues, the City
`passed a zoning ordinance that placed some restrictions on the abil-
`ity of Sailboat Bend to operate in residentially zoned districts.
`
`The Plaintiffs sued the City under the FHA, 42 U.S.C. § 3604,
`and the ADA, 42 U.S.C. § 12132, alleging that the Zoning Ordi-
`nance facially discriminated against individuals with disabilities,
`that the City failed to grant their request for a reasonable accom-
`modation for an exemption from the Fire Code, and that the City
`intentionally discriminated against the Plaintiffs in its enforcement
`of the Code because of the residents’ disabilities. The district court
`entered summary judgment for the City of Fort Lauderdale on
`each claim and this timely appeal followed.
`II.
`We review the entry of summary judgment de novo, exam-
`ining the evidence and drawing all reasonable inferences in the
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`light most favorable to the nonmoving party. Hernandez v. Plasti-
`pak Packaging, Inc., 15 F.4th 1321, 1325 (11th Cir. 2021); Hallmark
`Devs., Inc. v. Fulton Cnty., 466 F.3d 1276, 1283 (11th Cir. 2006).
`We will affirm if “there is no genuine issue as to any material fact”
`and “the movant is entitled to judgment as a matter of
`law.” Schwarz v. City of Treasure Island, 544 F.3d 1201, 1211 (11th
`Cir. 2008) (citation and quotation marks omitted); FED. R. CIV. P.
`56(a).
`
`A.
`First up is the Plaintiffs’ claim that the City’s Zoning Ordi-
`nance facially discriminates against individuals with disabilities in
`violation of both the FHA and the ADA. Because the Zoning Or-
`dinance undeniably treats individuals with disabilities more favor-
`ably than it treats similarly situated, non-disabled individuals, we
`conclude that the Zoning Ordinance is not facially discriminatory
`at all. We need not consider whether the differential treatment of
`individuals with disabilities is “justified” because the differential
`treatment favors them rather than discriminates against them.
`We start, as we must, with the text of the relevant statutes.
`First, the FHA prohibits, among other things, discrimination
`“against any person in the terms, conditions, or privileges of sale or
`rental of a dwelling, or in the provision of services or facilities in
`connection with such dwelling, because of a handicap.” 42 U.S.C.
`§ 3604(f)(2); see also Schwarz, 544 F.3d at 1212 (explaining that the
`Fair Housing Amendments Act of 1988 amended the FHA to add
`handicapped persons as a protected class and that the FHA
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`prohibits zoning actions that discriminate based on disability). The
`statute also renders it unlawful to “make unavailable or deny a
`dwelling to any buyer or renter because of a handicap[.]” 42 U.S.C.
`§ 3604(f)(1). The critical language in Title II of the ADA, in turn,
`reads this way: “[N]o 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 pub-
`lic entity, or be subjected to discrimination by any such entity.” 42
`U.S.C. § 12132.
`
`The district court, following the lead of many courts, ana-
`lyzed the Plaintiffs’ FHA and ADA discrimination claims as one.
`See, e.g., Cinnamon Hills Youth Crisis Ctr., Inc. v. St. George City,
`685 F.3d 917, 919 (10th Cir. 2012) (Gorsuch, J.) (analyzing both the
`FHA and the ADA under the same “statutory rubric”);
`Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 573 n.4 (2d Cir.
`2003), superseded by regulation on other grounds (“Due to the sim-
`ilarities between the statutes, we interpret them in tandem.”); Ca-
`ron Found. of Fla., Inc. v. City of Delray Beach, 879 F. Supp. 2d
`1353, 1364 (S.D. Fla. 2012) (“Due to the similarity of the ADA and
`the FHA’s protections of individuals with disabilities in housing
`matters, courts often analyze the two statutes as one.”). For our
`purposes, the parties do not dispute analyzing the statutes as one.
`Although there are important differences between them, those dif-
`ferences are not relevant to the outcome of this appeal. Both the
`FHA and the ADA outlaw discrimination against people with disa-
`bilities.
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`The texts of the FHA and the ADA each require a plaintiff
`alleging disparate treatment to prove that he was treated less favor-
`ably than a similarly situated, non-disabled person. For starters, the
`text of the FHA makes it unlawful to “discriminate against” a per-
`son in housing on the basis of disability. In Bostock v. Clayton
`County, the Supreme Court recently provided meaning to the
`phrase “discriminating against” as it was used in Title VII of the
`Civil Rights Act of 1964. 140 S. Ct. 1731, 1739–40 (2020) (citing 42
`U.S.C. § 2000e-2). In considering whether Title VII’s proscription
`on “discriminating against” individuals in employment “because of
`such individual’s race, color, religion, sex, or national origin” in-
`cluded firing someone for being homosexual or transgender, the
`Court asked what it meant to “discriminate against” a person. Id.
`at 1738–40. Interpreting that statute “in accord with the ordinary
`public meaning of its terms at the time of its enactment,” the Court
`concluded that “[t]o ‘discriminate against’ a person [ ] would seem
`to mean treating that individual worse than others who are simi-
`larly situated.” Id. at 1738, 1740 (emphasis added) (citing Burling-
`ton N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)). In
`Burlington Northern and Santa Fe Railway Company v. White, the
`Supreme Court had earlier explained the meaning of the term the
`same way: “No one doubts that the term ‘discriminate against’ re-
`fers to distinctions or differences in treatment that injure protected
`individuals.” 548 U.S. at 59 (emphasis added). And the Supreme
`Court again said the same thing in Ricci v. DeStefano, another Title
`VII case. 557 U.S. 557 (2009). “Disparate-treatment cases present
`the most easily understood type of discrimination, and occur
`
`
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`where an employer has treated a particular person less favorably
`than others because of a protected trait.” Ricci, 557 U.S. at 577
`(emphasis added) (cleaned up). Although the statute at issue in
`each of Bostock, Burlington, and Ricci was Title VII, its “discrimi-
`nate against” language tracks identically the language found in the
`FHA, which makes it “unlawful . . . [t]o discriminate against any
`person . . . because of a handicap[.]” 42 U.S.C. § 3604(f)(2) (empha-
`sis added).
`
`Further, although section 3604(f)(1) of the FHA and Title II
`of the ADA do not use the same “discriminate against” language,
`their prohibitions are plainly concerned with negative treatment.
`First, section 3604(f)(1) prohibits “mak[ing] unavailable or
`deny[ing]” a dwelling to someone because of a disability. Merriam-
`Webster Dictionary defines “to deny” as “to give a negative answer
`to” or “to refuse to grant.” “Deny,” MERRIAM -WEBSTER’S ONLINE
`DICTIONARY 2022, https://www.merriam-webster.com/diction-
`ary/deny. Similarly, Merriam-Webster Dictionary defines “to
`make” as “to cause to happen to or be experienced by someone.”
`And it defines “unavailable” as “not possible to get or use.”
`“Make,” MERRIAM-WEBSTER’S ONLINE
`DICTIONARY
`2022,
`https://www.merriam-webster.com/dictionary/make; “Unavail-
`able,” MERRIAM-WEBSTER’S ONLINE
`DICTIONARY
`2022,
`https://www.merriam-webster.com/dictionary/unavailable.
`Thus, to “make unavailable” a dwelling is to deprive one of access
`to the dwelling. It follows that a disabled plaintiff cannot be
`granted more access to housing than a similarly situated, non-
`
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`disabled counterpart and yet still claim he was “denied” access to a
`dwelling or that it was “made unavailable” to him on account of
`his disability.
`This negative treatment requirement is likewise found in the
`language of Title II of the ADA: “[N]o qualified individual with a
`disability shall, by reason of such disability, be excluded from par-
`ticipation 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. An examination of the verbs used
`by Congress in the text of this section confirms this understanding.
`To be “excluded from,” like being “denied the benefits of,” has both
`a negative and deleterious denotation and connotation. Merriam-
`Webster Dictionary defines “to exclude” as “to prevent or restrict
`the entrance of” or “to bar from participation, consideration, or in-
`clusion.” “Exclude,” MERRIAM-WEBSTER’S ONLINE DICTIONARY
`2022, https://www.merriam-webster.com/dictionary/exclude.
`And the final phrase in the statute -- “subjected to discrimination”
`-- must be read in connection with its first two prohibitions. We
`rely on the interpretive canon of “noscitur a sociis -- a word is
`known by the company it keeps.” Yates v. United States, 574 U.S.
`528, 543 (2015). Thus, we understand Congress to have prohibited
`intentional discrimination that inures to the detriment or disad-
`vantage of the protected class. A disabled plaintiff who has been
`treated in the same way as a similarly situated, non-disabled per-
`son, or in the rare case like this one, who has been treated better
`
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`than a non-disabled comparator, cannot successfully mount a dis-
`crimination claim under these provisions of the FHA or the ADA.
`Indeed, in Bircoll v. Miami-Dade County, a panel of this
`Court observed that Title II “prohibits a public entity from discrim-
`inating against a qualified individual with a disability on account of
`the individual’s disability[.]” 480 F.3d 1072, 1081 (11th Cir. 2007)
`(emphasis added) (quotation marks omitted). Moreover, the
`“Findings and Purpose” section of the ADA also declares that “[i]t
`is the purpose of this chapter – (1) to provide a clear and compre-
`hensive national mandate for the elimination of discrimination
`against individuals with disabilities . . . .” 42 U.S.C. § 12101(b)(1)
`(emphasis added).
`If a plaintiff has made a prima facie showing of disparate
`treatment under the FHA or ADA, the burden of going forward
`shifts to the defendant to establish that the differential treatment is
`justified. See Cmty. House, Inc. v. City of Boise, 490 F.3d 1041,
`1050 (9th Cir. 2007); Larkin v. Mich. Dep’t of Soc. Servs., 89 F.3d
`285, 290 (6th Cir. 1996); Bangerter v. Orem City Corp., 46 F.3d
`1491, 1503 (10th Cir. 1995); Jeffrey O. v. City of Boca Raton, 511 F.
`Supp. 2d 1339, 1350 (S.D. Fla. 2007). The circuit courts are split on
`what test to employ in deciding whether the defendant’s burden of
`justification is met; the Eleventh Circuit has not yet weighed in on
`this issue.
`Our sister circuits have adopted three different tests. See
`generally Curto v. A Country Place Condo. Ass’n, Inc., 921 F.3d
`405, 412 (3d Cir. 2019) (Fuentes, J., concurring) (discussing the tests
`
`
`
`USCA11 Case: 20-13444 Date Filed: 08/26/2022 Page: 18 of 32
`
`18
`
`Opinion of the Court
`
`20-13444
`
`that other circuits have adopted). The first one adopts the Equal
`Protection Clause rational basis review test, Oxford House-C v.
`City of St. Louis, 77 F.3d 249, 252 (8th Cir. 1996); the second em-
`ploys a means-ends tailoring test, Larkin, 89 F.3d at 290–91; and the
`third has concluded differential treatment is justified when the gov-
`ernment shows “(1) that the restriction benefits the protected class
`or (2) that it responds to legitimate safety concerns raised by the
`individuals affected,” Cmty. House, 490 F.3d at 1050; see also
`Bangerter, 46 F.3d at 1503 (holding that “two potential justifica-
`tions” are “benign discrimination” and “public safety”).2
`
`Here, the district court did not choose from among the var-
`ious approaches, concluding instead that under any of them, the
`Zoning Ordinance adopted by the City of Fort Lauderdale was jus-
`tified under the second part of the analysis because the City treats
`
`
`2 It is worth noting that the ordinances in the cases from the Sixth, Ninth, and
`Tenth Circuits all treated the protected group less favorably. See Cmty.
`House, 490 F.3d at 1046 (segregating men and women at a homeless shelter);
`Larkin, 89 F.3d at 289–91 (spacing requirement applied only to housing for
`individuals with disabilities, but provided no corresponding benefit); Banger-
`ter, 46 F.3d at 1502 (24-hour supervision requirement applied only to disabled
`residents in group homes and not non-disabled residents of other group
`homes). Only the Eighth Circuit reached step two after concluding the plain-
`tiffs were treated more favorably. See Oxford House-C, 77 F.3d at 251–52
`(City of St. Louis code capped group homes for disabled people in single-fam-
`ily zones at eight people, but allowed only three unrelated, non-disabled peo-
`ple to reside together in a single-family zone).
`
`
`
`USCA11 Case: 20-13444 Date Filed: 08/26/2022 Page: 19 of 32
`
`20-13444
`
`Opinion of the Court
`
`19
`
`individuals with disabilities better than it treats those without disa-
`bilities.
`We need not reach a second step at all -- much less choose
`from among the various tests -- because Sailboat Bend does not
`even make it to first base. Although the City’s Zoning Ordinance
`treats individuals with disabilities differently than non-disabled in-
`dividuals, it undoubtedly treats them more favorably. Whereas
`groups of three or more unrelated, non-disabled people cannot live
`together in residential districts, the Zoning Ordinance specifically
`exempts “Community Residences,” like Sailboat Bend, allowing
`them to operate in residential zones if certain conditions (like a
`1,000-foot spacing requirement) are met. Thus, groups of three or
`more unrelated, disabled people may live together in residential
`districts so long as they comply with some additional require-
`ments.
`
`The Plaintiffs’ central argument, nevertheless, is that the Or-
`dinance does not treat individuals with disabilities more favorably
`because it places burdensome requirements on them that it does
`not place on individuals without disabilities. But this argument ig-
`nores that these “burdens” uniquely apply to individuals with disa-
`bilities because they are the only category of people who may live
`in Community Residences of more than three unrelated individu-
`als and thereby benefit from the opportunity. Consider, by way of
`example, a city that offers free public housing only to individuals
`with disabilities, but to secure the housing, an applicant has to
`show proof of employment or a reasonable attempt at securing
`
`
`
`USCA11 Case: 20-13444 Date Filed: 08/26/2022 Page: 20 of 32
`
`20
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`Opinion of the Court
`
`20-13444
`
`employment. No one would say that this housing program treats
`individuals with disabilities worse than it treats non-disabled indi-
`viduals. After all, the non-disabled could not secure free public
`housing at all. Here, the Zoning Ordinance’s requirement that
`Community Residences comply with the 1,000-foot spacing re-
`quirement applies only when the disabled seek to live together in a
`group of more than three -- something non-disabled individuals can
`never do. Quite simply, the Ordinance does not facially discrimi-
`nate against disabled people. Thus, we need not and do not con-
`sider any justification for the different treatment.
`
`Nor does our case law compel us to reach a second, justifi-
`cation stage in the analysis when a plaintiff fails to make a prima
`facie case of disparate treatment under the FHA or the ADA be-
`cause he has been treated more favorably. Our cases have only
`dealt with the other two possibilities -- that the plaintiff was treated
`the same as or less favorably than his similarly situated compara-
`tors -- but not the odd case where the plaintiff actually was treated
`better. For example, in Schwarz v. City of Treasure Island, we con-
`sidered a disparate treatment claim under the FHA and concluded
`that the claim failed because the plaintiff failed to show he had ac-
`tually been treated differently than similarly situated, non-disabled
`people. 544 F.3d at 1216. In Schwarz, a panel of this Court had no
`occasion to consider the unusual circumstance where disabled peo-
`ple were treated more favorably than similarly situated non-disa-
`bled
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