Full opinion text
ORDER ON MOTIONS FOR SUMMARY JUDGMENT KOVACHEVICH, District Judge. This cause is before the Court on the following: 1. Plaintiffs’ motion for summary judgment filed on August 20, 1990. 2. Plaintiffs’ memorandum of law in support of motion for summary judgment filed on August 20, 1990. 3. Plaintiffs’ request for oral argument filed on August 20, 1990. 4. Stipulation by the parties filed on August 22, 1990. (Attached as Exhibit) 5. Defendant’s cross motion for summary judgment and reply to Plaintiffs’ motion for summary judgment filed on September 20, 1990. 6. Defendant’s legal memorandum in support of its motion for summary judgment and in reply to Plaintiffs’ summary judgment motion filed on September 20, 1990. 7. Plaintiffs’ memorandum in opposition to Defendant’s cross motion for summary judgment filed on October 2, 1990. 8. Defendant’s motion to strike portion of Plaintiffs’ memorandum in opposition to Defendant’s cross motion for summary judgment filed on October 9, 1990. 9. Defendant’s corrected motion to strike portion of Plaintiffs’ memorandum in opposition to Defendant’s cross motion for summary judgment filed on October 11, 1990. 10. Plaintiffs’ reply to Defendant’s motion to strike portion of Plaintiffs’ memorandum in opposition to Defendant’s cross motion for summary judgment filed on October 15, 1990. This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment. The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), In our view the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the party’s case, and on which that party will bear the burden of proof at trial. Id. 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273. The Court also said, “Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing there is a genuine issue for trial.’ ” Celotex Corp., 477 U.S. at p. 324, 106 S.Ct. at p. 2553, 91 L.Ed.2d at p. 274. This Court finds that there is an absence of a genuine issue as to any material fact present in this case. Therefore, this case will be decided as a matter of law. Plaintiffs filed their complaint on April 28,1989. The complaint alleged the following facts as relevant to the causes of action asserted: 1. The individual Plaintiffs, at all times material hereto, all have resided in dwelling units encumbered by documentary use restrictions which are covenants running with the land, and which predate the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601, et seq., hereinafter referred to as “Act”, which prohibits children from being a permanent resident of their “community”, i.e., their respective condominium, subdivision, or mobile home park. 2. Each of the individual Plaintiffs is over 70 years of age, and acquired his dwelling unit as a permanent residence prior to September 13, 1988 with the reasonable expectations: a. That these documentary restrictions, which violated no statutory or constitutional provisions of the law or Constitutions of the United States or the State of Florida, would continue to be valid and enforceable property and contract rights, free from impairment by any law of the State of Florida, so long as they were not arbitrarily and selectively enforced, and that these property and contract rights would not be taken by action of the United States Government. b. Of privacy in continued peaceful possession of their respective dwelling units without the permanent presence of children under the age specified in their respective documents. 3. Each of the individual Plaintiffs’ ownership or leasehold interest in his dwelling unit includes, as an appurtenance thereto, a joint ownership or use interest in the common areas /elements of their community, such as the recreation facilities and open space areas. 4. Each of the individual Plaintiffs purchased or leased his dwelling unit in reliance on advertising or written assurances that his community was an adult retirement community. 5. Each of the individual Plaintiffs resides in a community in which at least 80 percent of the dwelling units are occupied by at least one person 55 years of age or older, and intentionally chose to live in a community with such an age-homogenous environment. 6. Each of the individual Plaintiffs, by virtue of accepting the deed or lease to his property, agreed to be bound by the documentary restrictions encumbering his community, which documents constitute a mutual agreement among all of the dwelling unit owners or lessees in each community. 7. The Act, in 42 U.S.C. § 3602(k) defines “familial status” as: “... one or more individuals (who have not attained the age of 18 years) being domiciled with a parent, one having legal custody, or the designee of such parent or other person”. The familial status is further bestowed upon pregnant women, and any person in the process of securing legal custody of an individual under 18 years of age. 8. The Act, in § 3604, makes it unlawful to, based upon familial status, refuse to sell or rent, or otherwise make unavailable or deny, a dwelling to any person; to discriminate against any person in the terms, conditions, or privileges of sale or rental, or in the provision or services or facilities in connections therewith; and to make, print, or publish any notice, statements or advertisement with respect to a sale or rental indicating any preference, limitation, or discrimination. 9. By virtue of the aforementioned sections of the Act, enforcement of the documentary restrictions would be violative of the Act, and would subject the individual Plaintiffs, and the members of the Boards of Directors of their respective associations, as well as the associations themselves, to severe penalties for violating the Act. 10. The Act contains two exemptions, for two types of “housing for older persons”, hereinafter referred to HFOP, which are material to the privately financed housing communities at issue, as described in §§ 3607(b)(2)(B) and (C). These HFOP exemptions are commonly known as the “62 or older” and the “55 or older” exemptions. 11. Although enacted on September 13, 1988, the Act by its terms did not take effect until March 12, 1989. 12. In order to qualify for the 62 or older exemption, all new occupants of a housing facility after September 13, 1988 must have been aged sixty-two or older. The presence of one underage occupant is fatal to qualification for the exemption. 13. The 62 or older exemption is restrictive in its definition and severely limits the use and marketability of Plaintiffs’ dwelling units. 14. The 55 or older exemption requires that the housing facility have: (i)... significant facilities and services designed to meet the physical or social needs of older persons, or if the provision of such facilities and services is not practicable, that such housing is necessary to provide important housing opportunities for older persons; and (ii) that at least 80 percent of the units are occupied by at least one person 55 years of age or older per unit; and (iii) the publication of, and adherence to, policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older. The Complaint contains the following causes of action against Defendants: Plaintiffs seek to have this Court declare unconstitutional and enjoin certain provisions of the Fair Housing Amendments Act of 1988 as applied to the Plaintiffs on the grounds that they are viola-tive of the following provisions of the Constitution of the United States: 1. The Act violates Plaintiffs’ right to freedom of association guaranteed to them by the First Amendment and their right of privacy as guaranteed to them by the First, Fourth, Fifth and Ninth Amendments. 2. The Act deprives Plaintiffs of equal protection of the laws in that it deprives them of liberty and property rights in violation of the Fifth Amendment with no basis therefore. 3. The Act takes Plaintiffs’ liberty and property interests for a private purpose, without compensation, in violation of the Fifth Amendment. 4. The Act deprives Plaintiffs of due process of law, by depriving them of vested property and contractual rights with no basis therefore, and subjects Plaintiffs PRIEL, RIEDEL and SHIP-LEY to arbitrary and capricious discrimination without due process of law, in violation of the Fifth Amendment. 5. The Act, and the regulations promulgated thereunder by Defendant, deprive Plaintiffs of due process of law by virtue of the vagueness of the “Housing for Older Persons” exemptions, in violation of the Fifth Amendment. 6. Finally, the Act violates Plaintiffs’ property and contract rights guaranteed them by the State of Florida, in violation of both the Tenth Amendment and the principles of federalism embodied in the Constitution. The Act regulates purely local conduct, and is not a proper matter for federal regulation. THE PLAINTIFFS The individual Plaintiffs are all residents of Pinellas County, Florida, and are all members of Plaintiff, Senior Civil Liberties Association, Inc. (hereinafter “SOLA”). Plaintiffs MOTYL own a detached single-family home in a subdivision known as Highland Lakes in Palm Harbor. They are retired, are in their seventies and are originally from Detroit. Prior to their retirement, they decided they wanted a quiet place to retire, in a “senior citizen’s retirement subdivision”, with no children. They found no such facility in Michigan, or in the Atlanta area and eventually came to Florida. After looking at several advertised areas, they decided on a new home in Highland Lakes. Moving to a new state and severing life-long relationships and friendships was very difficult, but their new adopted lifestyle without children “supersedes all previous sacrifices and hardships encountered so far.” All of the advertising by the developer described Highland Lakes as an “adult retirement community.” A sign at the front entrance says “Highland Lakes for the Retirement Time of Your Life.” Highland Lakes is comprised of 2,360 single-family houses and villa units, plus a three-story, thirty-unit condominium apartment building. The entire subdivision is subject to a Declaration of Restrictions, which originally required at least one permanent occupant of a lot to be at least fifty years of age and prohibited permanent occupancy by anyone under sixteen. The common areas of the subdivision, including two clubhouses, two swimming pools and a twenty-seven hole executive golf course are, pursuant to the Declaration, owned and operated by a homeowner’s association. The Declaration makes membership in the association mandatory with acquisition of title to an encumbered lot and grants the lot owner the right to use the association properties. In 1989, the Declaration was amended to raise the minimum age to fifty-five and give the homeowners’ association the power to assess for any alterations or improvements in order to provide facilities or services designed to meet the requirements of the Act. The facilities presently include a twenty-seven hole executive golf course, two swimming pools, two clubhouses (each with a kitchen, auditorium, offices, small meeting rooms, management office and card rooms), tennis courts, shuffleboard courts, exercise classes, swimming classes, aerobics classes, ceramics, dances, entertainment, speakers at association meetings and association sponsorship of various clubs such as the men’s club, theater club, travel club and organ club. Plaintiff PRIEL is the owner of a double-wide, “tied-down” mobile home in Golden Crest Mobile Home Park, in Dunedin. She is seventy-eight. She and her late husband retired from upstate New York to the park in 1971. In 1975 they “traded up” to the present unit. When they purchased, they intentionally chose to live with people of their own age. The original advertising for the park said it was a “retirement community.” The Park Rules, which were part of the only lease she ever signed, in 1975, said it was an “adult park”, although children could visit as guests. The Prospectus approved by the Florida Bureau of Mobile Homes in 1985, pursuant to Chapter 723, Florida Statutes, restated the adult-only rule by requiring that every resident shall be eighteen years of age or over. Golden Crest Mobile Home Park has 176 mobile homes. The present facilities include a swimming pool, shuffleboard courts, pool table, laundry facilities, recreation building (with kitchen, library, piano, television, stereo and large tables), dinners, pot luck coffee hours, meals on wheels, congregate dining and public bus service. Most of the furnishings and equipment have been paid for over the years by the residents, and not the park owner. The recreation facilities are run by a Recreation Board, an unofficial entity created by the park owner. The Board has no assessment powers. There is also an incorporated homeowners’ association, created in 1987, pursuant to Chapter 723, Florida Statutes. The Complaint alleges that shortly after the passage of the Act, the park owner threatened to stop enforcing the no-ehil-dren rule unless the residents came up with money to pay for the installation of additional facilities and services. This demand was dropped in the face of pressure from the homeowners’ association. The park owner amended the rules anyway, in 1989, to require that residents be fifty-five years of age or older. Plaintiff SHIPLEY is in her seventies and from Virginia. Her husband is in his nineties. Neither of the Shipleys are in good health. They live in the Heather Lake Condominium Community, in Dunedin, comprised of twelve low-rise apartment buildings in ten separately declared condominiums. She purchased a unit in Condo II in 1979 or 1980 were she lived for a year before marrying her husband and moving into his unit in Condo X in 1981. Her husband’s unit was purchased in 1979 or 1980 on re-sale from a speculator who had purchased from the developer. Both of the SHIPLEYS purchased their units because the complex was for adults only. They have raised four children, but now, in their “later years”, they cannot tolerate the noise which would be made by children residing in the complex. All of the Declarations of Condominium in Heather Lake have the same provisions. The originally recorded Rules and Regulations require that each unit shall be used as a single-family residence of persons over the age of sixteen. In 1989, the Declaration was amended, with the expressed intent of qualifying for an exemption under the Act, to require that 80 percent of the units have at least one permanent occupant 55 years or older, and that all permanent occupants be at least 18 years of age. The Heather Lake complex contains a recreation clubhouse (with kitchen, library, bathrooms, lounge, pool table, card tables, sofas, chairs, piano, television and tables), swimming pool, shuffleboard courts, entertainment, coffee hours, cookouts, “stitch & chat”, card games, bingo, hospital volunteer program, Neighborly Senior Services, Inc., meals on wheels, “walking for fitness”, Thanksgiving dinner, Christmas dinner dance, and outings. In late 1988-1989, Plaintiff SHIPLEY put her unit in Condo II on the market for sale. When the Act took effect in March, 1989, she could not continue advertising the unit as “adults only” or “no children”, for fear this would constitute a violation of the Act. Advertising consisted of a notice on the clubhouse bulletin board, and ads in two small local newspapers: the Palm Harbor Sounder and the Dunedin Times. The unit was eventually sold, in October, 1989. Plaintiff SHIPLEY did not use a real estate broker. Plaintiffs RIEDEL are in their eighties and retired to Florida from New York City in 1963. They rented in various places, mostly in Clearwater Beach, until purchasing their unit in the Clearwater Point Condominium complex, in December, 1982. They never saw any printed advertising materials, as they purchased on re-sale, but “it was generally known in the area that Clearwater Point was and is an ‘adult community.’ ” Plaintiffs RIEDEL are not in good health either. The prohibition against children contained in the condominium documents was also an important consideration to them when they purchased because of their age and their health. Clearwater Point is comprised of eight separately declared condominiums, six of which are three-story townhouse clusters. The other two condominiums, including theirs, are each comprised of two high-rise apartment buildings. The two buildings which comprise the RIEDELS’ condominium contain a total of 137 units. The entire community contains a much greater number of units. The recreational facilities for the complex are owned by a separate corporation controlled by the eight condominium associations. There are two small heated pools and a large heated- pool and jacuzzi, adjacent to which is a small building with showers and toilets, a barbecue area and beachfront. Pursuant to the condominium documents, unit owners (only) may, upon purchasing their units, elect to join the corporation and obtain use rights in the facilities, which Plaintiffs RIEDEL did. Once elected, this right runs with ownership of the unit. The Declaration of Condominium has, at least since they acquired their unit, prohibited children under sixteen from residing on the premises. Their condominium association has not amended the Declaration since the passage of the Act. Plaintiffs MOTYL, PRIEL and SHIPLEY make the educated guess that virtually all of the units in their communities are occupied by at least one person over fifty-five. Plaintiffs RIEDEL do not know, knowing only that most residents are retired. PRELIMINARY ISSUES: LOCAL RULE 3.01 This Court first addresses the propriety of Plaintiffs’ memorandum in opposition to defendant’s cross motion for summary judgment and the arguments therein filed on October 2, 1990. In response to this memorandum, Defendants filed a motion to strike portion of Plaintiffs’ memorandum in opposition to Defendant’s cross motion for summary judgment on October 9, 1990. Defendants later filed a Corrected Motion to Strike Portion of Plaintiffs’ Memorandum in Opposition to Defendant’s Cross Motion for Summary Judgment on Oct. 11, 1990. The conflict hinges upon whether the Defendant intended his discussion of legislative history to be part of his cross motion for summary judgment or part of his reply to Plaintiffs’ summary judgment. If Defendant intended his discussion of legislative history to be a reply to Plaintiffs’ motion for summary judgment, then Plaintiffs’ memorandum in opposition to Defendant’s cross motion was improperly titled and in essence is a “reply to a reply” which is prohibited, not only by Local Rule 3.01(b), but by the aforementioned Scheduling Conference. If, in fact, Plaintiffs’ correctly labeled their motion as a cross motion, then Plaintiffs’ were within their right to reply to Defendant’s cross motion for summary judgment pursuant to Local Rule 3.01(b). This Court finds that whether Plaintiffs’ Reply would be considered a reply to a reply or a reply to a cross motion is a technical controversy that need not be specifically resolved in this particular instance. The controversy need not be specifically resolved because this is a case of first impression and its arguments should be given broad latitude. Therefore, this Court denies Defendant’s corrected motion to strike portion of Plaintiffs’ memorandum in opposition to Defendant’s cross motion for summary judgment and will consider all parts of Plaintiffs’ memorandum in opposition to Defendant’s cross motion for summary judgment. STANDING The Court’s first concern is whether Plaintiffs have alleged sufficient standing to bring this lawsuit. Plaintiffs allege in their complaint that: 1. Plaintiffs are in need of the requested declaratory relief as the Act and the regulations promulgated thereunder, require an immediate and significant change in their conduct, and in the conduct of the associations which govern their communities and enforce their documents, and in the lifestyle Plaintiffs have contracted for by virtue of accepting the deed or lease to their dwelling units. The Act provides for serious penalties in the nature of substantial civil fines for violation, that may be levied without the requirement of any intent on the part of the Plaintiffs or their associations to violate the Act. 2. Plaintiffs are in doubt as to their rights, duties and liabilities under the Act and their respective documents in that, they verily believe that their constitutional rights as set forth in each of the Claims herein are abridged by the Act. 3. Plaintiff SHIPLEY is further in need of the requested relief, as her unit is on the market for resale and she wishes to preserve the age-homogeneous environment of her community, yet has ceased using “adult only” language in advertisements for her unit for fear of potential liability for violation of the Act. 4. Plaintiff SHIPLEY is further in need of the requested declaratory relief by virtue of her being a member of the Board of Directors of her condominium association charged with the ultimate responsibility of approving or disapproving resales and rentals of units in the condominium administered by her association. 5. Plaintiff PRIEL is further in need of the requested declaratory relief because the owner of her mobile home park has notified the homeowners association, of which she is a Director and the Secretary, that unless the lot owners pay for the installation and operation of communal cooking and dining services, the acquisition and operation of automobiles for transportation services and indemnify the park owner in case a of suit against him for violation of the Act by virtue of continued enforcement of the documentary restrictions prohibiting children, at an immediate “start-up cost” to each lot owner of over $1,000.00 per unit, the park owner will no longer enforce the child restriction, thereby destroying the retirement community nature of the park, in which she has been a permanent resident since at least 1972. 6. Each of the individual Plaintiffs is further in need of the requested declaratory relief because each are threatened with a deprivation or taking of his rights in and to a child-free environment through the actions of others over whom he has no direct control: other unit owners in their community selling or renting their units and the governing associations and management companies with the power to approve such transactions. 7. Each of the Plaintiffs is in need of the requested supplemental injunctive relief as each will suffer irreparable harm, and there is no adequate remedy for the destruction of the character of the Plaintiffs’ residences and communities should children be permitted to reside therein. 8. Plaintiffs’ irreparable injury is due to the unavailability of an adequate legal remedy; there is a substantial likelihood of success on the merits; the threatened injury to the opposing party or to the potential recipients of the familial status benefits of the Act is minimal as there is no documented shortage of ownership or long-term lease housing in the area; and issuance of a preliminary injunction would not disserve the public interest. Those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. Ill of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). In addition, Plaintiffs must demonstrate a “personal stake in the outcome” in order to “assure that concrete adverseness which sharpens the presentation of issues” necessary for the proper resolution of constitutional questions. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Further, abstract injury is not good enough. The Plaintiff must show that he “has sustained or is immediately in danger of sustaining some direct injury” as the result of challenged official conduct and that the injury or threat of injury is both “real and immediate,” not “conjectural” or “hypothetical.” Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). First of all, Defendant has moved to dismiss this action for lack of jurisdiction over the subject matter; ie., on the grounds that Plaintiffs lack standing to bring this action for declaratory relief pursuant to 28 U.S.C. § 2201. Specifically, Defendant’s motion complains of insufficient allegations of standing in the Complaint. Plaintiffs answer by stating and arguing that Defendant’s motion is without merit. This Court finds that it has jurisdiction according to 28 U.S.C. § 2201 to hear this action for declaratory relief and also to grant supplemental relief according to 28 U.S.C. § 2202. In Allstate Ins. Co. v. Employers Liability Assurance Corp., 445 F.2d 1278 (5th Cir.1971), the court held that the declaratory judgment remedy is an all-purpose remedy designed to permit an adjudication whenever the court has jurisdiction, there is an actual case or controversy and an adjudication would serve a useful purpose. The court also held that the Declaratory Judgment Act is remedial, and is to be liberally construed. Defendant also contends that Plaintiffs have failed to allege the requisite standing because they did not show that they have suffered, or are threatened with, a distinct and palpable injury as a result of Defendant’s actions and because the relief that Plaintiffs request will not redress the injury. Defendant relies on City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In that case, the respondent filed suit in Federal District Court against petitioner, City of Los Angeles and certain of its police officers, alleging that in 1976 he was stopped by the officers for a traffic violation and that although he offered no resistance, the officers, without provocation or justification, seized him and applied a “chokehold”, rendering him unconscious and causing damage to his larynx. In addition to seeking damages, the complaint sought injunctive relief against petitioner, barring the use of chokeholds except in situations where the proposed victim reasonably appeared to be threatening the immediate use of deadly force. The respondent alleged that he justifiably feared that any future contact he might have with police officers might again result in his being choked without provocation and that there was thus a threatened impairment of various rights protected by the Federal Constitution. The District Court ultimately entered a preliminary injunction against the use of chokeholds under circumstances that did not threaten death or serious bodily injury and the Court of Appeals affirmed. The Supreme Court reversed. The Supreme Court held that the federal courts are without jurisdiction to entertain respondent’s claim for injunctive relief. The court reasoned that the respondent’s standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the choke-hold by police officers. The Court held that the fact that respondent may have been illegally choked by the police in 1976, does not establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer who would illegally choke him into unconsciousness without any provocation. This Court is not persuaded by Defendant’s arguments for several reasons. First, the case involves the State’s criminal laws. Second, the threat of future injury was much more speculative in City of Los Angeles because any future threat to the respondent from the City’s policy or from the conduct of police officers would be no more real than the possibility that he would again have an encounter with the police and that either he would illegally resist arrest or detention or the officers would disobey their instructions and again render him unconscious without any provocation. On the other hand, it is very possible that either a private party living in Plaintiffs’ communities may sell their home to a family with children or that the management of Plaintiffs’ communities may not let them advertise and sell their properties to families without children. Therefore, the injury is not as speculative. Third, Plaintiffs in the instant case are more immediately threatened because no illegal act must occur to start the process. This Court is persuaded by Plaintiffs’ rebuttal arguments. Plaintiffs’ first rebuttal argument relies on the case of Atlanta Gas Light Co. v. United States Department of Energy, 666 F.2d 1359 (11th Cir.1982) for its authority. In that case, the court held that declaratory relief in the context of a pre-enforcement challenge to the constitutionality of regulatory legislation and regulations promulgated thereunder is within this court’s jurisdiction, even though no concrete injury may have yet occurred, as the occurrence of an injury is not dispositive of the issues of standing and ripeness. Id. at pp. 1363-64 n. 7. The Court finds this reasoning applicable to the instant case because both cases involve pre-enforcement challenges to the constitutionality of regulatory legislation. Therefore, although a concrete injury has not yet occurred in the instant case, the case may still be ripe. Plaintiffs also cite International Society for Krishna Consciousness v. Eaves, 601 F.2d 809 (5th Cir.1979). In that case, a religious organization and others brought suit to challenge as unconstitutional a municipal ordinance regulating distribution of literature and solicitation of funds at city-owned airports. The United States District Court for the Northern District of Georgia refused to grant a preliminary injunction and Plaintiffs appealed. The Court of Appeals held that Plaintiffs’ anticipatory challenge to a provision prohibiting the receipt or acceptance of donations except at certain solicitation booths presented a justicia-ble controversy. The court did begin its reasoning, however, by stating that a plaintiff must not be allowed to enlist the aid of a federal court in a general effort to purge unconstitutional measures from the body of the law. The court then qualified this statement by stating that this is not by any means to suggest that we should be hostile to anticipatory challenges because they play a most vital role in modern efforts to enforce constitutional rights. The court also stated that it is not necessary that a party first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights. Id. at 817. Once again, however, the court qualified its reasoning. The court qualified its reasoning by incorporating the premises of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). Marbury requires a court to insist that an anticipatory challenge to a statute’s constitutionality grow out of a “real, substantial controversy between parties, a dispute definite and concrete.” The Court stated that it cannot always be satisfied by a plaintiff’s formal allegation that he wishes to violate the challenged statute, for such an allegation could be honestly made by a plaintiff interested only in sweeping unconstitutional legislation from the statute books. The Marbury court also stated that it can be certain that a constitutional challenge grows out of a genuine dispute and is not a contrivance prompted solely by a desire to enforce constitutional rights if we know that the allegedly unconstitutional statute interferes with the way the plaintiff would normally conduct his affairs. Lastly, the Marbury court stated that it is usually sufficient, although not necessary, that the plaintiff have a role in an organization dedicated in part to activities proscribed by the challenged statute and as-sertedly protected by the constitution. The Eaves case stands for the principle that anticipatory challenges play a vital role in modern efforts to enforce constitutional rights, but that these challenges must not be allowed to go unchecked. Eaves enunciates the standards to be applied to anticipatory challenges to determine if they are legitimate and therefore permissible. Upon applying the standards set out in the Eaves case to the instant case, this Court finds that Plaintiffs have standing to sue for the following reasons. Eaves requires that an anticipatory challenge to a statute’s constitutionality grow out of a real and substantial dispute. In the instant case, Plaintiffs are in doubt as to their rights, duties and liabilities under the Act and their respective documents. Additionally, Plaintiffs are seeking rulings on the constitutionality and the enforceability of the familial status portions of the Act in advance of conduct which will invite an investigation or complaint by Defendant, or a private lawsuit by an allegedly aggrieved party. This Court therefore finds that a real and substantial dispute is present in this case. Also, following the reasoning set forth in the Eaves case, which stated a court can be certain that a genuine dispute is present if the allegedly unconstitutional statute interferes with the way the plaintiff would normally conduct his affairs, this Court also finds that Plaintiffs have met their burden to prove standing. The Act, and the regulations promulgated thereunder, require an immediate and significant change in the conduct of the Plaintiffs and the associations that govern their communities and enforce their documents and in the lifestyle Plaintiffs have contracted for by virtue of accepting the deed or lease to their dwelling units. This change in the way Plaintiffs conduct their affairs is necessary because the Act provides for serious penalties in the nature of substantial civil fines for violation that may be levied without any requirement of intent on the part of Plaintiffs. Also, the Act can cause a “chilling effect” on the actions and conduct of Plaintiffs in that Plaintiffs, although desiring to preserve the age-homogeneous environment of their community, would cease to use “adult-only” language in their advertising for fear of potential liability for violation of the Act. For these reasons, the Court concludes that possible future enforcement of this statute significantly interferes with the way Plaintiffs would normally conduct their affairs. Finally, following the Eaves case and its reasoning, standing is usually sufficiently shown when a plaintiff has a role in an organization dedicated in part to activities proscribed by the challenged statute and assertedly protected by the constitution. In the instant case, all Plaintiffs are members of the Senior Civil Liberties Association (SCLA). According to Plaintiffs, SCLA is a not-for-profit corporation which was organized for the purpose of promoting and protecting the civil rights of older Americans and representing its members in any lawful proceeding or action initiated or existing in furtherance of the contractual or civil rights of elderly persons to enjoy peaceful occupancy and use of their home, condominium or cooperative apartments or mobile homes either owned or rented wherever situated. This statement of SCLA’s purpose put forth by Plaintiffs demonstrates that the organization is dedicated in part to activities proscribed by the challenged statute. Accordingly, Plaintiffs have standing to bring this lawsuit. Defendant further contends that the individual Plaintiffs have failed to demonstrate that their purported injuries are traceable to the Department of Housing and Urban Development (hereinafter HUD) because they cannot and do not allege that HUD has either told them that their communities are not within the “55 or older” exemption to the Act or that HUD has tried in any other way to limit whatever rights they or anyone in their community may have to sell or use their property. Plaintiffs respond by stating that they cannot or do not allege that HUD has ever told them that their communities are not within the “55 or older” exemption because HUD will not take a stand on the question of whether their communities in fact qualify for an exemption even though they have conducted discovery on the issue. HUD does not issue declaratory or advisory opinions. It is undisputed that HUD refuses to tell anyone whether they qualify for an exemption until someone guesses wrong. At this point an exhaustive and expensive investigatory process is undertaken by HUD. Following from this, it is virtually impossible for the Plaintiffs to know whether they qualify for an exemption until there is actually a case. This Court is not persuaded by Defendant’s last contention because there is no way Plaintiffs can know that they are in violation of the Act until they actually do something and it is challenged by HUD. The Court finds that Plaintiffs have standing in spite of the absence of an advisory opinion from HUD. Defendants also allege that Plaintiffs have failed to prove any facts which demonstrate that Plaintiff SCLA has standing as an organization to bring the instant action. In support of this allegation, Defendant cites the cases of Hope v. DuPage, 738 F.2d 797 (7th Cir.1984), Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) and Anderson et al. v. City of Alpharetta, 770 F.2d 1575 (11th Cir.1985). After a thorough reading of the above cited cases, this Court finds that they can be distinguished from the instant case. For example, in all three cases the organization was suing as the representative of a class action and not as an individual plaintiff. This is not the situation in the instant case. Plaintiffs do not assert that SCLA represents any of its members in this action. SCLA is apparently suing as an individual plaintiff and not on behalf of any of its members. Therefore, even though the complaint is somewhat weak in its averments concerning the individual standing of SCLA, this Court finds that all named Plaintiffs have adequate standing to bring this lawsuit. LEGISLATIVE HISTORY The applicable sections of the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601, et seq. (1988) read as follows: § 3604. Discrimination in the sale or rental of housing and other prohibited practices As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful— (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or natural origin. (b) To discriminate 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 therewith, because of race, color, religion, sex, familial status, or natural origin. (c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. (d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. (e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin. Because the Act itself contains no expressions of congressional purpose or intent, the Court looks to the report of the House Judiciary Committee, H.R.Rep. No. 100-711, reprinted 1988 U.S.Code Cong. & Ad.News 2173, and the floor debates in Congress, where the original bill was amended. 134 Cong.Rec. H4603-4607 (daily ed. June 22, 1988), H4679-4688 (daily ed. June 23, 1988), S10454-20469 (daily ed. Aug. 1, 1988), H6497-6501 (daily ed. Aug. 8, 1988) Both parties allege that Congress was presented with overwhelming evidence that discrimination against families with children was a major national problem in need of congressional attention and action. There the similarities end. Plaintiffs further allege that although the House Report states the purpose of the “familial status” portions of the Act was to deal with an increasing difficulty that people with children are having in finding housing, none of the studies cited in the house report attest to any nationwide problem these people are having in finding homes to purchase. Plaintiffs also allege that in the initial presentation of the bill on the House floor, the familial status provisions of the Act were again explained in terms of the problems created by the fact of too much rental housing prohibiting children. Finally, Plaintiffs call this Court’s attention to the comments made by Rep. Fish. Rep. Fish described the problem solely in terms of rental housing, and stated that: The aim is not to disrupt the lives of senior citizens or the operation of legitimate retirement communities. Rather, we seek to expand the availability of rental units for young families without arbitrary exclusions and limitation. 134 Cong.Rec. H4605. Plaintiffs conclude by stating that the legislative history does not support Defendant's assertion that Congress was presented with any evidence that documentary age restrictions in ownership housing are a problem. Defendant alleges that a substantial amount of testimony focused on how discrimination was a problem for families in all types of housing units and transactions. Defendant contends that Congress was presented with evidence that documentary age restrictions were a problem in ownership housing and did in fact intend to alleviate discrimination in ownership housing as well as in rental housing by passing this Act. Most of the pertinent legislative history is contained in the Hearings before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, One Hundredth Congress, First Session on HR. 1158, Fair Housing Amendments act of 1987 (hereinafter known as House Hearings), and the Hearings before the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, One Hundredth Congress, First Session on S.558, A Bill to Amend Title VIII of the Act Commonly Called The Civil Rights Act of1968, to Revise the Procedures for the Enforcement of Fair Housing, and for Other Purposes (hereinafter referred to as Senate Hearings). After reading all the pertinent legislative history, this Court agrees with Defendant that the Fair Housing Amendments Act of 1988 applies to both rental and ownership housing. Although nothing in the reports and hearings of both the House and the Senate directly states that this Act includes discrimination in ownership housing, all materials speak to “the housing market” and “housing discrimination” in general. The Fair Housing Amendments Act of 1988 came before Congress exactly 20 years after the Fair Housing Act of 1968 was passed. Congress stated when they passed the Fair Housing Act of 1968, that they could no longer tolerate discrimination in the sale or rental of housing on the basis of race, color, religion, or national origin. In 1974, sex was added to this list. Twenty years later, with discrimination and segregation well-documented, Congress saw the need to add to the list of protected classes, families with children and individuals with handicaps. In short, it was the legislature’s intent to open up all forms of housing to parents with children under 18 except those that are designed for older persons and qualify for an exemption Defendant also asserts that a substantial amount of the legislative history focuses on criticism of the discrimination laws of other states. According to the statement and testimony of James Morales found at Senate Hearings, pp. 166-210, sixteen states and the District of Columbia currently have laws prohibiting child discrimination. Mr. Morales also testified that many advocates have had a difficult time going against powerful real estate interests who oppose bills that would prohibit housing discrimination against families with children. Mr. Morales further testified that the result of this is that the vast majority of states do not have laws and those that do generally have weak and ineffectual laws that are riddled with exemptions that permit discrimination to continue because they fail to cover all real estate transactions. Mr. Morales then goes on to give some examples. Illinois, for example, protects families with younger children but does not protect families with older children above the age of fourteen. Also, nine of the sixteen states with housing discrimination laws, Florida incidentally not being one of them, limit their laws to encompass only rental units and thus do not apply to discrimination in the sale of property. Other states do not cover specific types of housing such as mobile home parks and condominiums. Mr. Morales concludes by stating that amending the Fair Housing Act to protect familial status would obviously not end child discrimination, but it would, with the addition of the strengthening of administrative remedies, become one of the strongest fair housing laws for families in the country. Not only would it provide remedies in those States where none exist, but would also close many of the loopholes that currently exist in the State Laws, such as covering rental, but not ownership housing, and provide further remedies in the Federal Courts. Id. at 168. This Court interprets Mr. Morales’ statements to mean that Congress designed the Act to alleviate all the listed forms of discrimination present in all housing arrangements. The testimony of David S. Liederman found in the House Hearings, pp. 163-72, also addresses this subject matter. Mr. Liederman testified that it is time to establish a national anti-discrimination standard for treatment of families seeking homes anywhere in the United States. He further testified that the existing sixteen state statutes offer varying degrees of fair housing protection to families but none can offer assurance of coverage for all families. Mr. Liederman then asks that the legislature provide a minimum level of fair housing for families with children as part of the overall effectiveness of Title VIII. Id. at 170. Defendant further argues that the Act addresses discrimination that is prevalent in two common types of ownership housing, namely, mobile homes and condominiums. The statement of the American Planning Association, found at House Hearings, pp. 513-20, states that interest in manufactured housing, and mobile homes in particular, has surged greatly in recent years, the greatest attraction being low cost and low maintenance. The statement also refers to a state-wide study of mobile home parks which revealed that 63% expressly stated that they were “adult-only.” The Association further states that families with children are encountering extreme difficulties in finding mobile home housing and that their frustrations are manifested through a growing number of lawsuits in which current or prospective residents are challenging age-restrictive policies of mobile home parks. Lastly, the statement points out that the increased demand for affordable housing by families, as well as significant changes in the design of mobile homes, make the exclusionary practices of some park owners all the more unfair and detrimental to the welfare of society. Id. at 516. Congress also heard testimony regarding discrimination occurring in condominiums. One report in particular, also from the American Planning Association, states that condominiums traditionally have catered to the elderly or to the young and therefore have age-restrictive rules or covenants. The Association concluded that as a result, families with children have been greatly excluded from this segment of the housing market. Id. at 516. The Court concludes that the purpose of the Fair Housing Amendments Act is to put into effect an overall system that uniformly protects all states and alleviates discrimination against families in all housing markets. Congress was informed and took into consideration the problems occurring in the rental and sales of single-family homes, mobile homes and condominiums. Plaintiffs did present a thought-provoking argument. Plaintiffs contend that the primary studies were restricted to rental housing and that Congress was not presented with any evidence that discrimination against families with children in the ownership context was a national problem to any extent. Therefore, Plaintiffs contend that applying the Act retrospectively to ownership housing is not rationally related to the problem as perceived by Congress. The Court concedes that most, but not all, of the testimony brought before Congress concerned the affect that age discrimination was having on rental housing. This Court notes that the reason for this emphasis on rental housing is well documented in the legislative history. The studies and reports consistently stated that over the past ten years more and more Americans have been unable to purchase homes and have been forced into the rental market. Factors that have forced this shift have included high interest rates, and energy and inflation-related increases in land prices, and construction costs, to the point where the average cost of a single-family home is over $100,000. At the same time the supply of affordable rental housing has not expanded to meet the demand. This has been due to cuts in federal funds subsidizing the construction of housing for low and moderate-income people, as well as changes in tax laws and other conditions making multi-family housing less attractive to developers. Besides these economic factors, the last ten years have seen a shift in demographic factors affecting housing. More and more baby boomers are postponing marriage, delaying having children, and are living alone, or as couples or in other small households. At the same time, more and more people over 55 are enjoying longer life expectancies, also in households of one or two. These two groups, the baby boomer and the seniors are competing with less affluent families with larger households for what is available in the way of rental housing. Landlords prefer to rent to smaller households who are perceived to have larger, or at least steadier, incomes and quieter, less disruptive lifestyles. Upon further examination of the legislative history, the Court notes other items which round out the history. Congress was provided with a nationwide statistic that stated that about 35% of all families depend on the rental market. House Hearings, p. 514 (Statement of the American Planning Association). Second, James Morales’ testimony, found at House Hearings, pp. 374-75, extended the above history by further stating that with household size decreasing and childless households increasing, developers and landlords do not have to respond to the demands of families with children to make their businesses financially successful. Mr. Morales’ testimony also stated that instead, developers can build houses and apartments with fewer bedrooms and less square footage and landlords can refuse to rent to families with children or impose other policies that severely restrict the number of children in units. Third, the prepared statement of Homer C. Floyd found on pp. 241-42 of the Senate Hearings provides some insight into the economic situation discussed above. Mr. Floyd’s statement declares that discrimination against families with children also injures middle and higher income families because even though they may not be trapped in the rental market, they are likely to find that income alone will not necessarily buy them the housing of their choice should that choice include condominiums and other facilities which exclude children. The legislature was presented with an awesome amount of information concerning the need to alleviate discrimination based on familial status. The Act in question was intended to close all the loopholes and make all the State laws uniform. It is this Courts opinion that the Act was intended to encompass both the sale and rental of single-family dwellings, mobile homes and condominiums. Therefore, this Act would apply to any alleged discriminatory practices of Plaintiffs or their associations, unless their communities qualify for an exemption. RETROACTIVITY Plaintiffs insist that the Act applies retrospectively to existing ownership housing and is therefore unconstitutional. More specifically, Plaintiffs allege that the application of the Act to existing ownership communities creates disparate treatment. Plaintiffs state that while the developer of a new community can, from the outset, plan to include whatever is deemed sufficient to qualify for the “55 or Over” exemption, and factor those additional cost into the sales of the units, Plaintiffs do not have that luxury. Finally, Plaintiffs allege that since it is only the retrospective application of the Act to existing ownership housing that is at issue, there is no rational basis for failing to exempt existing communities from the familial status provisions of the Act, while exempting existing housing facilities from the “building code” provisions of the “handicap” provisions of the Act. § 804(f)(3)(C). Defendant has not addressed the issue of retroactivity. However, Plaintiffs state that Defendant may respond that exempting existing structures from the building code provisions was a practical necessity in that to require landlords to undertake such major structural renovations would wreak financial havoc on the landlords, while unduly disrupting the lives of their tenants while the renovations are being undertaken. In seeking justification for retroactive application of the familial status provisions to the Plaintiffs, Plaintiffs argue that the Constitution does not provide greater protection to profit-motivated activities than to the conduct of people’s lives. This Court is not persuaded by Plaintiffs’ arguments because it finds that the Act does not apply retrospectively. For this reason, no justification for retroac-tivity is necessary. In fact, this Court would also be open to the suggestion that the familial status portions of the act are prospective for the very same reasons that Plaintiffs feel the handicap provisions are. Further reasons for this Court’s holding are as follows. This Court would once again address the “Housing For Older Persons” exemptions of the Act set out supra, pp. 38-39. This Court relies on White v. U.S., 191 U.S. 545, 24 S.Ct. 171, 48 L.Ed. 295 (1903). In that case, the Court said: Where it is claimed that a law is to have retroactive application such must be clearly the intention, evidenced in the law and its purposes, or the court will presume that the lawmaking power is acting for the future, and not for the past; that it is enacting a rule of conduct which shall control the future rights and dealing of men, rather than review and affix new obligations to that which has been done in the past, (emphasis added) Id. at 552, 24 S.Ct. at 172, 48 L.Ed. at 295. This Court can find no clear intent expressed in the Act that any of its provisions should act retrospectively. There are, however, certain provisions that clearly express that they are to be applied prospectively. For example, § 807(b)(3)(A) and (B) read as follows: (3) Housing shall not fail to meet the requirements for housing for older persons by reason of: (A) persons residing in such housing as of September 13, 1988, who do not meet the age requirements of subsections (2)(B) or (C): Provided, that new occupants of such housing meet the age requirements of subsection (2)(B) or (C); or (B) unoccupied units: Provided, that such units are reserved for occupancy by persons who meet the age requirements of subsection (2)(B) or (C). These provisions go a step further and make the age requirement explicitly prospective. If Congress wanted to make the whole Act prospective, Congress could have included a similar provision regarding the other requirements of the exemptions. However, this was not done. This Court speculates that this was not done because Congress presumed that all presently existing facilities were likely to qualify, but could not presume that all current residents met the age requirement; hence, the different treatment. This idea is also furthered by legislative history. Representative Synar’s testimony, found at House Hearings, p. H4681 reads in part that: The gentleman from Florida addressed that [retrospective application] and he tried to make the statement that would require expenditures of money in order to qualify. The fact of the matter is if one looks at the report language of the committee we do not require specific facilities to be retrofitted in order to meet this qualification. Second, and most importantly, most of the senior citizen-type housing in this country already meets these types of restrictions and limitations. Once again this Court finds the whole idea of “significant facilities and services specifically designed to meet the physical or social needs of older persons” is a function of what the older person intended it to be when they chose the place in which they now reside. These facilities need not now be retrofitted to better fit the language of the Act. This Court speculates that existing older person housing already qualifies for the exemption. For the future, however, Congress has seen fit to give additional guidelines for determination of appropriate older person housing. CONSTITUTIONAL ISSUES: THE COMMERCE CLAUSE The Commerce Clause is found in Article I, § 8 of the United States Constitution and reads in part as follows: “Congress shall have the power to regulate commerce with foreign nations and among the several states and with Indian tribes ...” The definitions of “commerce” and “commerce among the several states” are set out in Gibbons v. Ogden, 9 Wheat. 1, 22 U.S. 1, 6 L.Ed. 23 (1824). In that case, the Court defined “commerce” as commercial intercourse—anything related to buying and selling. The Court defined “commerce among the several states” to mean any commerce (commercial intercourse) that affects more than one state. The Court went on to say that the activity didn’t have to cross state lines in order to constitute interstate commerce. Plaintiffs contend that Congress does not have authority under the Commerce Clause to regulate age-restricted housing as it has done in the Act. In support, Plaintiffs assert that there is “no activity ‘in’ or ‘in th