Schwarz v. Villages Charter School, Inc. (165 F. Supp. 3d 1153, 2016)

AMENDED ORDER

MARCIA MORALES HOWARD, United States District Judge

THIS CAUSE comes before the Court as a disability discrimination action brought pursuant to Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq., the Fair Housing Act (“FHA”), 42 U.S.C. § 3603, et seq., and section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794, et seq. Plaintiffs are thirty-two deaf persons who are residents of The Villages, a retirement community located in Florida. On October 18, 2013, Plaintiffs filed a Third Amended Complaint (Doc. 93; Complaint) against Defendants, the Village Center Community Development District, Sumter Landing Community Development District, and The Villages Charter School, Inc. d/b/a/ The Villages Lifelong Learning College, generally asserting that Defendants have failed to provide sign language interpreters or other reasonable accommodations so that Plaintiffs can fully enjoy and participate in Defendants’ programs, activities, and services. See generally Complaint. The matter is presently before the Court on Defendants, the Village Center Community Development District and Sumter Landing Community Development District’s Motion for Summary Judgment, with Incorporated Memorandum of Law (Doc. 131; Motion), filed on March 14, 2015, and Defendant, The Villages Charter School, Inc. d/b/a the Villages Lifelong Learning College’s Motion for Summary Judgment and Memorandum of Law (Doc. 132; Motion), filed on March 16, 2015. On April 13, 2015, Plaintiffs filed Plaintiffs’ Memorandum of Law in Opposition to Defendants, the Districts’ Motion for Summary Judgment (Doc. 140; Response) and Plaintiffs’ Memorandum of Law in Opposition to Defendant, The Villages Charter School Inc.’s Motion for Summary Judgment (Doc. 141; Response).

On September 2, 2015, the Court held the Final Pretrial Conference, during which the Court heard oral argument by counsel on the Motions for Summary Judgment, see Clerk’s Minutes (Doc. 177; Clerk’s Minutes). At the Final Pretrial Conference, the Court ordered supplemental briefing from Plaintiffs and Defendant The Villages Charter School, Inc. Id. As such, at the Court’s direction, Defendant The Villages Charter School, Inc., filed Defendant, The Villages Charter School, Inc., d/b/a The Villages Lifelong Learning College’s Supplemental Briefing in Support of its Motion for Summary Judgment and Incorporated Memorandum of law (Doc. 179; Defendant’s Supplement) and Plaintiffs filed Plaintiffs’ Supplemental Brief (Doc. 180; Plaintiffs’ Supplement). Accordingly, the matter is ripe for review.

I. Defendants, the Village Center Community Development District and Sumter Landing Community Development District’s Motion for Summary Judgment, with Incorporated Memorandum of Law (Doc. 131)

A. Background

The Villages is a residential community designed and managed for retired residents aged 55 and older. It has over 100,-000 residents and over 50,000 single-family homes. See Affidavit of Deborah Franklin ¶ 2 (Doc. 131-2; Franklin Aff.). The Villages is comprised of 15 community development districts, which are governmental entities created pursuant to Florida Statute section 190.01, et seq. See Affidavit of Janet Y. Tutt ¶ 3 (Doc. 131-1; Tutt Aff.). The defendants in this action, the Village Center Community Development District (“the VCCDD”) and Sumter Landing Community Development District (“SLCDD”) (together, “the Districts”), are the two primary residential districts in The Villages.

1.The Village Center Community Development District and Sumter Landing Community Development District

Both the VCCDD and SLCDD are local units of a special purpose government. Tutt Aff. ¶ 3. As such, the Districts must adhere to the same Florida Statutes and Administrative Codes as any municipality. Id. Janet Tutt (“Tutt”) is the District Manager for the Districts and an employee of the VCCDD. Id. ¶ 2. As District Manager, Tutt is the Chief Operating Officer for the Districts and is appointed by the VCCDD Board of Supervisors, which is elected by landowners in The Villages. Id. ¶ 7. As the governmental structure of the Districts is similar to that of a Florida city, Tutt’s position is “essentially equivalent of that of a City Manager[,]” making her the Districts’ decision-maker. Motion at 4.

The Districts are not to be confused with the Developer of The Villages, The Villages of Lake Sumter, Inc. Tutt Aff. ¶ 4. As a for-profit corporation, the Developer-is a private entity and is the entity that sells homes to residents of The Villages. Id.

2.The Districts’ Recreation Department

The Districts have numerous departments, which include, but are not limited to, Human Resources, Public Safety, Finance, Property Management, and Recreation. Tutt Aff. ¶ 3; Exhibit A to Tutt Affidavit (Doc. 131-1; Tutt Aff., Ex. A). Through the Recreation Department, the Districts provide a vast array of recreational facilities for use by residents and their guests and which include 33 executive golf courses, 45 Neighborhood Recreational Centers, 23 Village Recreational Centers, and 9 Regional Recreational Centers. Tutt Aff. ¶¶ 8-9; see also Exhibit C to Tutt Affidavit (Doc. 131-1, Exhibit C; Tutt Aff., Ex. C). The Recreation Department also provides residents with over 70 pools, numerous tennis and pickle ball courts, and many other facilities. Tutt Aff. ¶ 8. The Districts’ Recreation Department has approximately 483 employees, the majority of whom work at recreation centers throughout The Villages. See Affidavit of John B. Rohan ¶ 3 (Doc. 131-5; Rohan Aff.).

3.The Amenities Fees

All property owners in The Villages pay a monthly amenities fee, which is set forth, in the Declaration of Restrictions applicable to each resident’s property. Tutt Aff. ¶ 5; see also Exhibit B to Tutt Affidavit at 4 (Doc. 131-1, Exhibit B; Tutt Aff., Ex. B). The Declaration of Restrictions provides that “[t]he Developer or its designee shall perpetually provide the recreational facilities” and that “[ejach Owner hereby agrees to pay the Developer, or its desig-nee, a monthly fee or charge (‘Amenities Fee’) against each Lot for [the recreational] services described... above[.]” See Tutt Aff., Ex. B ¶¶ 4.1(a), 4.2. The Districts, through issuance of bonds, purchase the Amenities Fee revenue stream and related infrastructure from the Developer. Tutt Aff. ¶ 6. Thus, the designee referenced above in the Declaration of Restrictions is the Districts after the transfer of the Amenities Fee revenue stream. Id.; see also Deposition of John Rohan dated July 17, 2014 at 37-38 (Doc. 144-5; Rohan Dep. II) (testifying that “The Villages pay [Ajmenities [F]ees” and that “those [A]menities [F]ees ultimately go to the [Districts”). Approximately 93% of the VCCDD’s revenue comes from Amenities Fees. Tutt Aff. ¶ 6.

The Amenities Fees paid by homeowners in The Villages are used for Recreation Department facilities, as well as nonstructural expenditures including the volunteer appreciation event, parades, and social events. See Deposition of John Rohan dated June 27, 2014 at 32 (Doc. 144-4; Rohan Dep. I); Deposition of Janet Tutt dated January 29, 2015 at 12 (Doc. 144-3; Tutt Dep. II); Rohan Dep. II at 38. The Amenities Fees also pay for handicap ramps for the various recreational facilities. Tutt Dep. II at 18-19. The allocation of the Amenities Fees are structured this way because the Districts own the Recreation Department facilities, and the purpose of the revenue stream is to operate and maintain those facilities for the benefit of the residents. Id. at 19.

4. The Resident Lifestyle Groups

The Resident Lifestyle Groups (“RLG” or “RLGs”) are the predominant users of the Recreation Department facilities. Tutt Aff. ¶ 9. The RLGs are comprised of over 2,000 clubs covering a wide range of interests such as card clubs, education clubs, numerous and varied exercise clubs, multiple AA support groups, college alumni groups, theatrical and musical groups, and much more. See Company Listing Report (Detail) (Doc. 131-40). RLGs are created by “resident volunteers”, also called “group leaders” (hereinafter referred to as “RLG volunteer(s)”). Tutt Aff. ¶ 10. Only residents of The Villages are permitted to become RLG volunteers and to create RLGs. Rohan Aff. ¶ 4; see also Deposition of Pam Henry at 21 (Doc. 144-1; Henry Dep.). Likewise, only residents of The Villages are able to join RLGs as members. Henry Dep. at 41; Tutt Dep. I at 49. Nonresidents may not do so because residents of The Villages pay Amenities Fees, and the Amenities Fees are used to support the RLGs’ use of Recreation Department facilities. Henry Dep.' at 21-22, 41-42; Tutt Dep. I at 49-50. As such, RLGs do not have to pay a rental fee to use the Recreation Department facilities. Tutt Dep. I at 50. The general public and groups from outside The Villages are permitted to use Recreation Department facilities, but are required to pay a rental fee. Id.

i. Formation of a Resident Lifestyle Group

The Recreation Department encourages residents to form RLGs. Tutt Aff. ¶ 11; see Rohan' Column (“Many Recreation Changes”) (Doc. 144-4, Exhibit 4; Rohan Column (“Many Recreation Changes”)); Rohan Column (“New year full of new possibilities”) (Doc. 144-4, Exhibit 6; Ro-han Column (“New year full of new possibilities”)); Districts’ Website Flyer (Doc. 144-1, Exhibit 1; Districts’ Website Flyer). A resident initiates the application process for an RLG by completing a Resident Survey Request Form and a Volunteer Application and submitting these documents to the Recreation Department. Henry Dep. at 10; see also Exhibit B to Rohan Affidavit at 3 (Doc. 131-5, Exhibit B; Rohan Aff., Ex. B). The Resident Survey Request Form solicits information including a description of the proposed club, the club’s leader, the club’s preferred meeting location, and the club’s preferred meeting time. Henry Dep. at 10; see also Rohan Aff., Ex. B at 13.

The record contains two versions of the Volunteer Application which differ substantially. The earlier version is dated October 4, 2011, and labeled ‘Volunteer Application Sheet.” See Exhibit C to Rohan Affidavit at 14-15 (Doc. 131-5, Exhibit C; Rohan Aff., Ex. C). This version solicits the applicant’s name; the applicant’s emergency contact; the reason why the applicant wants to volunteer; information about the applicant’s most recent volunteer experience; special skills, training, and experience; and references. See Rohan Aff., Ex. C at 14-15. The older version of the application also includes a section labeled “Applicant Statement” which required the applicant to check off the following statement, “Should my application be accepted, I agree to be bound by the resident lifestyle guidelines and to refrain from any misconduct in the performance of my services on behalf of the VCDD Recreation Department.” Rohan Aff., Ex. C at 15.

A more recent version of the Volunteer Application is dated December 6, 2013, and November 10, 2014, and labeled, “Volunteer Information Sheet[.]” See Rohan Aff., Ex. B at 14. Unlike, the older version of the Volunteer Application, this document does not request references; information about why the applicant wants to volunteer; the applicant’s most recent volunteer experience; or the applicant’s special skills, training, and experience. Id. Additionally, it does not have an “Applicant Statement” section, so the applicant is not required to check off the statement quoted above regarding “refrain[ing] from any misconduct in the performance of my services on behalf of the VCDD Recreation Department.” Id.

Once an applicant completes the Volunteer Application and Resident Survey Request Form, the Recreation Manager for the RLGs, Pam Henry, and her supervisor, the Recreation Director for the VCCDD and SLCDD, John Rohan, review these documents for approval. See Henry Dep. at 10. Rohan testified that as part of the RLG application process, “[t]he Recreation Department does review the activity being promoted by the club to make certain that it is legal, is being organized by and for Villages residents, is not unreasonably duplicative of existing clubs, and is not a guise for proprietary activity.” Ro-han Aff. ¶ 6. Similarly, Henry testified that if an application for a new RLG is not approved it is “because there’s plenty of them already and there’s space available in those clubs or activities.” Henry Dep. at 11.

Once Henry and Rohan approve the forms, the Resident Survey Request Form is published for two weeks in the Recreation News, a media outlet published by The Villages Media and paid for by the Recreation Department, to gauge residents’ interest level. Henry Dep. at 11, 18-19; see also Rohan Aff., Ex. B at 3. The prospective RLG volunteer is listed as the contact person for the Resident Survey Request Form and in that capacity, receives and tallies the responses. See Exhibit 1 to Rohan Dep. I (Doc. 144-4, Exhibit 1; Rohan Dep. I, Ex. 1); Henry Dep. at 11. After the two-week survey is completed, the prospective RLG volunteer meets with Henry to determine whether there is sufficient interest to establish the proposed RLG. Henry Dep. at 11; Rohan Dep. I, Ex. 1. If Henry, at Rohan’s direction, determines that there is sufficient interest, she approves the Resident Survey Request Form and meets with the RLG volunteer to discuss meeting space and times. Henry Dep. at 13; Rohan Aff., Ex. B at 3. After Henry and the RLG volunteer agree on a meeting space and time, they meet again to review the Resident Lifestyle Volunteer Guidelines and to sign a facility permit, which Henry describes as a “room contract” to keep that meeting day, time, and location. Henry Dep. at 14; Rohan Dep. I, Ex. 1; see generally Rohan Aff., Ex. B.

Once an RLG is formed, the RLG volunteers lead the RLG, reserve rooms for the RLG at the recreation facilities at no charge, and act as the contact person with the Recreation Department. Rohan Aff. ¶¶ 4, 14. Additionally, RLG volunteers can advertise the meeting times and places for their RLG in the Recreation News. Henry Dep. at 14.

ii. Resident Lifestyle Volunteer Guidelines

One of Rohan’s duties is to make sure that RLG volunteers are “compliant” with the Resident Lifestyle Volunteer Guidelines. Rohan Dep. I at 65; see Rohan Aff., Ex. B; Rohan Aff., Ex. C. Statements included in the Resident Lifestyle Volunteer Guidelines under the heading “Resident Lifestyle Group Information” are as follows:

• Membership in a Resident Lifestyle Group shall be restricted to residents of The Villages.

• Participants must be at the appropriate level of experience and knowledge to join an activity as determined by a group leader.

• Resident Lifestyle Groups must meet a minimum of four times in a fiscal year (October-September) in order to maintain their Resident Lifestyle Group status.

• Groups may add up to 8 additional meeting dates per year.

• Resident Lifestyle Groups shall maintain a list of group members and provide that list to the Recreation Department upon request.

• Members are required to present their Resident ID to attend each activity.

• Eligible guests may attend a Resident Lifestyle sponsored activity. An eligible guest is any person who is registered in the Guest ID Card system.

• Eligible guests must present a valid Guest ID and photo ID prior to attending any Resident Lifestyle activity. Guests are not eligible to become members of a Resident Lifestyle Group.

• Resident Lifestyle Groups are allowed to have non-resident guest presenters/speakers on a limited basis with prior approval by the Director of Recreation[.]

• Support Groups, defined as a non-funded group with health conditions that are recognized through the American Medical Association to qualify, are allowed to have up to 10 non-qualified guests attend their meetings at District facilities. Support Groups must be approved by the Director of Recreation.

• Resident Lifestyle Groups are encouraged to provide the group’s expectations, membership requirements, dues and other fees, etc., prior to residents joining.

• Resident Lifestyle Groups that charge membership dues or fees are required to notify their members, publicize these charges, and account for the purpose and use of fees. The responsibility for recording all financial information belongs to the Resident Lifestyle Group.[]

• The records (membership, bylaws, financial, operating procedures, etc.) of each Resident Lifestyle Group shall be open to participating residents upon reasonable notice.

• The use of Recreation Department equipment [sic] copiers, coffee, Recreation equipment is based on availability[.]

• The Resident Lifestyle Group(s) shall agree to abide by the policies and procedures of the Recreation Department and the Village Community Development Districts.

• All groups are subject to review by the Recreation Department or the Village Community Development Districts.

• There is limited storage at Recreation Centers; any storage of items must have prior approval by the Director of Recreation.

See Rohan Aff., Ex. B at 3-4; Rohan Aff. Ex. C at 3-4. The Resident Lifestyle Volunteer Guidelines also include additional information related to guidelines for RLGs which collect fees, and procedures for scheduling rooms, and information related to facility permits, among other topics. See generally id. Of particular relevance to this action, the Resident Lifestyle Volunteer Guidelines include a section regarding the Americans with Disabilities Act and auxiliary aids. This provision states the following:

XVII. ADA

The following information regarding ADA Auxiliary Aids will provide clarification for managing and directing requests for auxiliary aids for activities at District owned and operated facilities. The person, entity or organization requesting and receiving a facility permit for rental of a District facility shall have the sole responsibility to accommodate qualified individuals pursuant to the Americans with Disabilities Act (ADA). This language will also appear on all Facility Permits issued for any District owned or operated facility:

• District Sponsored Event: If the District organizes or is otherwise in charge or plays an integral part in the event or activity, the District will provide accommodations to a person that is impaired subject to the District’s “Policy for ADA Accommodations”.

• Non-District Sponsored Event: Resident Lifestyle Volunteer Group Event: Resident Lifestyle Groups are volunteer and non-profit entities which sponsor activities, meeting and events separate from District operations, entities and functions. Requests for auxiliary aids for Resident Lifestyle sponsored events should be directed to the Resident Lifestyle Group Contact listed on the Facility Permit. The Resident Lifestyle Group Contact shall determine the provisions for providing auxiliary aids on a case by case basis, determining whether the request would place an undue hardship on the Resident Lifestyle Group.

• Non-District Sponsored Event: Rental of Facilities: An individual(s) or group(s) sponsors activities, meetings and events separate from District operations, entities and functions. Requests for auxiliary aids for rental or facility events should be directed to the Contact listed on the Facility Permit. The Contact shall determine the provisions for providing auxiliary aids on a case by case basis, determining whether the request would place an undue hardship.

Rohan Aff., Ex. B at 11; Rohan Aff., Ex. C at 11.

iii. Recreation Department involvement with RLGs

In explaining the Districts’ involvement with the RLGs, Tutt testified as follows:

The content of club meetings, providing [sic] the Districts do not become aware of the illegal, destructive, or proprietary activities, is of no concern to the Districts. Whether John or Jane is the group leader is likewise of no relevance to the Districts, as long as that person is a resident and his or her contact information has been provided. The Districts’ concern focuses on facilitating the efficient use of its recreation centers.

Tutt AfiN 20; see also Tutt Dep. I at 65-66 (explaining that the function of the Districts with respect to the RLGs is to “provide [the RLGs] facilities in a framework”, “to provide an organized mechanism” for scheduling the RLGs, and to avoid a situation where there is “no accountability for the use of the room and consideration of the facilities”). Tutt further explained that with over 2,000 groups “vying for space”, the Districts’ function is to “make sure there [is] a balance” of RLGs using the recreation facilities. Tutt Dep. I at 66. According to Tutt, the RLGs provide recreational activities which supplement the vast array of recreational activities provided by the Districts, but the RLGs do not replace the Districts’ recreational functions. Tutt Aff. ¶ 21.

Tutt has explained that the Districts do not regulate the content of the programs and services offered by the RLGs “other than to the .extent they will not allow proprietary or illegal operations in the facilities.” Tutt Aff. ¶ 15; see also Rohan Aff. ¶ 7 (“The Districts do not regulate or supervise the activities of clubs other than to expect compliance with its facility guidelines.”)- As such, RLGs “that use the Districts’ facilities are subject to the Districts’ Facility Guidelines” but “[tjhese guidelines are no different than the guidelines imposed upon residents using the facilities, or outside parties who have rented the facility.” Tutt Aff. ¶ 13; see Tutt Dep. I at 68 (testifying that the Recreation Department is in charge of enforcing the “code of conduct” with respect to RLGs but qualifying that the Recreation Department ensures that “everybody who utilizes” the Districts’ facilities complies with the code of conduct). Similarly, Recreation Department employees check the identification of all persons who use recreation facilities regardless of whether the person is a member of an RLG using the facilities or a nonresident using the facilities. Rohan Aff. ¶ 7. Indeed, Henry testified that nonresidents can use the recreational facilities, but they must have a valid guest ID card. Henry Dep. at 103.

Although the Districts do not control membership of RLGs except to ensure that members are residents of The Villages, Recreation Department personnel may, upon request from a resident, suggest appropriate clubs and provide the resident with the contact information, for the appropriate group leader. Rohan Aff. ¶ 10. Similarly, if a resident wants to create a new RLG, but that prospective group leader is only available seasonally, the Districts will “put a call out for volunteers to assist those residents to get someone else to come in to set a group up.” Tutt Dep. I at 53. The Recreation Department also organizes a quarterly “communication meeting” to provide information to the RLGs about recreation center closings, projects taking place, community news, and updates. Rohan Dep. I at 48-49. However, RLG volunteers are not required to attend these meetings. Id. at 49.

Annually, the Recreation Department contacts the RLG volunteers to obtain the volunteer leaders’ facility permits in order to update the information on the Districts’ website regarding what programs will be held in the recreation facilities. Rohan Dep. II at 83-84. The facility permit is key to being an RLG volunteer: If a resident decides he or she no longer wants to be an RLG volunteer, the Recreation Department will rescind the facility permit. Id. at 85. As such, Rohan testified that

[t]he Recreation Department’s involvement with resident clubs is due to and required by club usage of recreation facility rooms and equipment. If residents of The Villages wish to form a club, but do not wish to use recreation facility space, the Recreation Department would have no contact with said group.

Rohan Aff. ¶ 5.

In their depositions, Plaintiffs were asked about and testified to their beliefs regarding the creation and function of the RLGs. For example, Plaintiff Louis Schwarz testified to his belief that the Districts control who the leader of an RLG is because “if the VCDD sees that people have interest in a particular subject matter, they may try to find a leader that may become proactive in trying to find a leader amongst those people that are interested in that particular area of interest[.]” See Deposition of Louis Schwarz at 17 (Doc. 131-6; Schwarz Dep.). However, Schwarz was not able to identify a specific club leader “appointed” by one of the Districts but rather testified that this “maybe” occurred with the Prius Club, the Photography Club, the Computer Club, or the Genealogy Club. Id. at 18. Schwarz further testified that the Districts have control over what goes on during RLG meetings because “[t]he VCDD has policies and guidelines that they have to explain explicitly what it is they can and cannot do.” Id. at 21. Additionally, Schwarz testified that the Districts provide “supervision” during RLG meetings because employees of the recreation center will tell residents they need to vacate the recreation rooms when their scheduled meeting time is up. Id. at 22-23. Plaintiff Janice Hickey testified that it is her understanding that The Villages operate the RLGs because the clubs are located in The Villages. Deposition of Janice Hickey at 58-59 (Doc. 131-8; Hickey Dep.). Plaintiff Richard McElwain testified that he believes the RLGs and the Districts “are the same” because he “bought into the whole package.. .the lifestylef.]” Deposition of Richard McElwain at 15 (Doc. 131-16; McElwain Dep). According to McElwain, he chose to live at The Villages “because of the different activities and the conglomerate of all the different clubs and active lifestyle that’s promoted here.” Id. at 15-16. However, McElwain also testified that he now understands that the “VCDD keeps [the RLGs]- separate^]” Id. at 21. Plaintiff Byron Zimmerman testified that he believes the Corvette Club is “the CDD’s Corvette group” because it is advertised in the Recreation News and because he believes it is included in the “lifestyle” at The Villages. Deposition of Byron Zimmerman at 25 (Doc. 131-17; Zimmerman Dep.). He further testified that because the