Legal Report, August 2015

General Counsel, Trela J. White
Assistant General Counsel, Jennifer G. Ashton

1. Texas Department of Community Affairs v. Inclusive Communities Project, Inc.; Case No.
13-1371, Supreme Court of the United States of America. Fair Housing Act.
In June, the Supreme Court of the United States (SCOTUS) issued an opinion upholding the
disparate impact theory of liability in claims brought under the Fair Housing Act (FHA). The
FHA was passed in 1968 to “provide, within constitutional limitations, for fair housing throughout
the [nation].” The FHA contains seven protected classes, which are prohibited bases for discrimination:
race, color, gender, religion, disability, familial status, and national origin. The prohibition
against discrimination applies to private and public actors, and federal, state, and local
governments. Under a disparate impact theory of liability, a defendant may be liable for discriminating
against a protected class when a rule, policy, or practice that is not discriminatory on its
face and not motivated by a discriminatory purpose has a differential impact on any of the seven
protected classes.
In this case, defendant Inclusive Communities Project, Inc. (Inclusive Communities) claimed
under a disparate impact theory of liability that Texas Department of Community Affairs (Texas)
discriminated against lower-income black families by establishing an eleven-factor test to allocate
Federal Low Income Housing Tax Credits (LIHTC). Inclusive Communities argued that
Texas’ eleven-factor test encouraged the location of affordable housing in low-income and predominately
minority areas. The district court ruled that Inclusive Communities demonstrated
disparate impact. The Fifth Circuit Court of Appeals upheld the decision of the lower court and
Texas appealed to SCOTUS.
SCOTUS affirmed the lower court rulings. The majority drew parallels between the nature of
federal employment law, which recognizes disparate impact liability, and the FHA. Additionally,
the majority opined that Congress was aware of the federal circuit courts’ recognition of the
disparate impact theory of liability in FHA cases. Because Congress never took action to limit the
disparate impact theory in FHA cases, the majority opined, Congress implicitly endorsed disparate
impact. Two dissenting opinions were filed; both noted unintended policy consequences.
Although this case reaffirmed a preexisting theory of liability, it is important to note that as new
Community Development Block Grant program rules are finalized, HUD will have an increased
ability to review local government ordinances for neutral policies that have a disparate impact.

2. Town of Gulf Stream and Wantman Group, Inc. v. Martin E. O’Boyle, et al.; Case No. 15-
80182-CIV-MARRA of the United States District Court, Southern District of Florida.
Public Records.
Town of Gulf Stream and Wantman Group, Inc. filed suit and alleged Defendants violated the
Racketeer Influenced Corrupt Organizations Act (RICO). Plaintiffs claimed Defendants filed
large numbers of frivolous public records requests that were often intentionally inconspicuous,
followed by lawsuits when the claims were not addressed. Plaintiffs alleged the Defendants’
public records requests were frivolous and nothing but a first step of a RICO scheme to defraud
and extort money from Plaintiffs. The court dismissed the case on June 30, 2015 and stated Defendants’
acts did not violate RICO. The court held that threatening to sue or actually suing
someone did not constitute a predicate act under RICO, and the filing of a public record request
does not constitute a predicate act under RICO. The court noted that “Plaintiffs find themselves
in a very difficult situation” and “to the extent Defendants are abusing the rights afforded them
by the Florida public records laws, those abuses must be addressed in the individual lawsuits
filed, or through a change in the laws by the Florida Legislature.” This case was closed on June
30, 2015. We will continue to monitor public records litigation.

3. Parker et al. v. American Traffic Solutions, Inc. et al., Case No. 1:14-cv-24010-FAM of the
U.S. District Court for the Southern District of Florida. Red Light Cameras
As a result of the outcome of City of Hollywood, etc. v. Eric Arem case, which was reported in the
June 2015 Legal Report, class action lawsuits were filed in the U.S. District Court for the Southern
District of Florida against eighty-one towns, the Florida Department of Revenue, and private
red light camera operators. The lawsuits were consolidated and Plaintiffs seek reimbursement of
fines assessed against motorists by red light camera programs. Plaintiffs allege these fines were
unlawful. At stake is over $200 million in fines. The court previously dismissed the matter for
lack of jurisdiction over the Florida Department of Revenue.
Recently, the court denied the local governments’ motions to dismiss many of the drivers’
causes of action but granted the local governments’ motion to dismiss the drivers’ procedural
due process claims. Notably, the court held that the drivers’ claims of unjust enrichment,
a quasi-contract claim, was not barred by sovereign immunity. Florida has only
waived immunity from tort claims. The local governments filed an interlocutory appeal to
the U.S. Circuit Court of Appeals for the Eleventh Circuit from the order determining local
governments were not entitled to sovereign immunity.1 We will continue to monitor this
case.

4. Jeffrey Marcus Gray vs. Lutheran Social Services of Northeast Florida, Inc. (LSS); Case
No. 1D14-5793 of the First District Court of Appeal. Public Records
The full details of this case are contained in the January 2015 Legal Report. Gray is a selfdescribed
public activist, who earns part of his livelihood making public records requests on
unsuspecting private entities that do business with public agencies and then suing them when
they fail to provide the public records to Gray’s satisfaction. Joel Chandler helps Gray carry out
his public records requests. In this case, the trial court ruled that the means utilized by Gray to
seek records from LSS constituted a flagrant abuse of Chapter 119 and were designed to ambush
unsuspecting private entities. The trial court denied Gray’s complaint, which sought attorney’s
fees and costs. Gray filed an appeal with the First District Court of Appeal. His Initial Brief was
filed with a motion for oral argument. LSS’s Answer Brief was filed with an unopposed motion
to supplement the record. Recently, Gray filed a Reply Brief. A date for oral argument has yet to
be set. We will continue to monitor this case.

5. Town of Gulf Stream, et al. vs. Palm Beach County, et al.; Case No. 4D15-1753 of the
Fourth District Court of Appeal of Florida. Inspector General Funding Lawsuit.
Fourteen municipalities sued Palm Beach County (the County) challenging the method of funding
for the Office of Inspector General (the OIG Program). The current funding method authorizes
the Board of County Commissioners to set an amount the municipalities must pay for the OIG
Program and to bill municipalities for that amount. The municipalities contend that the current
funding method is an unlawful tax and invades municipal home rule budgetary authority. On
March 16, 2015, the trial court entered a Final Judgment in favor of Palm Beach County. In May
of this year, a Notice of Appeal was filed by the municipalities in the trial court and the County
filed a Notice of Cross Appeal. Both parties agreed to an extension of time to file the Initial Brief
(until September 14, 2015) and the matter is in the brief writing stage. The Florida League of
Cities considered the merits of the municipalities and has decided to petition the appellate court
for amicus curiae (friend of the court) status. The Florida League’s motion for amicus curiae
status on behalf of the municipalities was filed on August 7, 2015. We will continue to monitor
this case.

1 Parker et al. v. American Traffic Solutions, Inc. et al., No. 15-_____, (11th Cir. filed Aug. 18, 2015).