Housing And Civil Enforcement Cases Documents

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION

UNITED STATES OF AMERICA,

                                     Plaintiff,

                        v.                                                                    Case No.

JOHN H. BARRETT; BARRETT PROPERTIES,
INC.; JOHN H. BARRETT CONSTRUCTION CO.;
PLAYERS CLUB WEST, L.P.; POLO CLUB OF
ATHENS, L.L.C.; RIVERBEND CLUB
APARTMENTS, INC.; JBPC SOUTH, INC.;                      CONSENT DECREE
T.C. SOUTH, INC.; P.C. GREENVILLE, L.P.;
and T.C. NORTH, INC.,

                                       Defendants.
__________________________________________

I. INTRODUCTION

      This Consent Decree resolves the above-captioned case brought by the United States against defendants John H. Barrett; Barrett Properties, Inc.; John H. Barrett Construction Co.; Players Club West, L.P.; Polo Club of Athens, L.L.C.; Riverbend Club Apartments, Inc.; JBPC South, Inc.; T.C. South, Inc.; P.C. Greenville, L.P.; and T.C. North, Inc. (collectively "the defendants").

     The Complaint alleges that the defendants discriminated against persons with disabilities by failing to design and construct "covered multifamily dwellings" (as defined by 42 U.S.C. § 3604(f)(7)(B)) at the following apartment complexes ("the subject properties") in accordance with subsection 804(f)(3)(C) of the Fair Housing Act ("the Act"), 42 U.S.C. § 3604(f)(3)(C):

• Players Club Apartments, which is located at 710 Georgia Avenue in Statesboro, Georgia (60 covered units);
• Players Club West Apartments, which is located at 425 Riverbend Parkway in Athens, Georgia (15 covered units);
• Players Club (or "Pirates Cove") Apartments, which is located at 1526 South Charles Boulevard in Greenville, North Carolina (48 covered units);
• Riverbend Club Apartments, which is located at 355 Riverbend Parkway in Athens, Georgia (45 covered units);
• Towne Club North Apartments, which is located at 260 Springdale Street in Athens, Georgia (28 covered units);
• Towne Club South Apartments, which is located at 1818 Chandler Road in Statesboro, Georgia (13 covered units); and
• Polo Club Apartments, which is located at 110 International Drive in Athens, Georgia (60 covered units).

      The Act provides that, for non-elevator residential buildings with four or more dwelling units such as those found at the subject properties, all ground-floor units that were designed and constructed for first occupancy after March 13, 1991, must include certain basic features of accessible and adaptable design to make such units usable by a person who is or who becomes disabled. 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(B). The features of accessible and adaptable design required by the Act include:

1. public and common use areas that are readily accessible to and usable by persons with disabilities;
2. doors designed to allow passage into and within all premises that are sufficiently wide to allow passage by persons using wheelchairs;
3. an accessible route into and through the dwelling;
4. light switches, electrical outlets, thermostats, and environmental controls in accessible locations;
5. reinforcements in bathroom walls to allow later installation of grab bars; and
6. usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.

42 U.S.C. § 3604(f)(3)(C). Defendants admit that they failed to design and construct the covered units and the common areas at the subject properties in compliance with the requirements of the Act.

     The parties agree that the claims against the defendants should be resolved without further proceedings or an evidentiary hearing. Therefore, as indicated by the signatures appearing below, the parties agree to the entry of this Consent Decree.

      It is hereby ORDERED, ADJUDGED and DECREED:

      Defendants, their officers, employees, agents, successors and assigns, and all other persons in active concert or participation with them are permanently enjoined from discriminating on the basis of disability, as prohibited by the Act 42 U.S.C. § 3604(f)(1), (2), and (3)(C), including the following actions:

1. Discriminating in the sale or rental, or otherwise making unavailable or denying, a dwelling to any buyer or renter because of a disability of that buyer or renter, any person residing in or intending to reside in that dwelling after it is sold or made available, or any person associated with that buyer or renter;
2. Discriminating against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of facilities in connection with such a dwelling, because of a disability of that person, a person residing in or intending to reside in the dwelling after it is sold, or any person associated with that person; and
3. Designing and constructing covered multifamily dwellings in such a manner that:
   1. The public use and common use portions of the dwellings, including any rental or sales offices or other places of public accommodation within the meaning of Section 303(a)(1) of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12183(a)(1), are not readily accessible to and usable by persons with disabilities;
   2. All the doors designed to allow passage into and within all premises within such dwellings are not sufficiently wide to allow passage by persons in wheelchairs;
   3. All premises within such dwellings do not contain the following features of adaptive design:
      1. An accessible route into and through the dwelling;
      2. Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
      3. Reinforcements in bathroom walls to allow later installation of grab bars; and
      4. Usable kitchens and bathrooms, such that an individual using a wheelchair can maneuver the space.

A. General Provisions:

      Defendants shall take the corrective actions described in this Section with respect to the covered ground-floor dwellings and public and common use areas at the subject properties. In the event that defendants intend to sell any of the subject properties, defendants shall take all the mandatory corrective actions specified in Appendices A and B before it is sold.

B. Public and Common Use Areas:

     Defendants at their own expense shall undertake and complete the following actions within eighteen (18) months from the date of entry of this Decree, unless otherwise provided below:

1. Modify the public and common use areas of each of the subject properties as specified in Appendix A, except that any modification listed in italics with an (*) shall be completed within six (6) months of the date of entry of this Decree.
2. Provide written certification to the United States from an architectural firm (or other person or entity) with expertise in the design and construction requirements applicable to multi-family housing, approved by the United States, that Defendants have correctly made the modifications set forth in Appendix A. ⁽¹⁾ This certification shall be based on an on-site survey of the modifications completed at each of the subject properties.

C. Required Retrofits at Dwelling Units:

1. Appendix B hereto sets forth the retrofits which defendants must undertake at specified ground floor units at the subject properties. These retrofits are to be completed at an annual rate of no less than one-fourth (1/4) of the total covered units to be retrofitted at the subject properties until all retrofits of the individual units are completed. ⁽²⁾ Within thirty (30) days of date of entry of this Decree, defendants shall provide the United States with a proposed schedule for completion of the retrofits; but in no event shall the retrofits commence later than one (1) year from the date of entry of this Decree. All of the retrofits to be undertaken at the units specified in Appendix B must be completed within five (5) years after entry of this Decree.
2. Defendants shall attempt to minimize any inconvenience to current and prospective tenants. If any of the accessibility modifications to units at the subject properties listed in Appendix B require dislocation of a current tenant or delay the move-in date for a prospective tenant beyond the scheduled date of occupancy, then defendants shall pay that person's reasonable relocation or housing expenses while the retrofits are being made, plus seven hundred and fifty dollars ($750.00) to compensate any such person for the inconvenience.
3. In order to minimize the inconvenience to current tenants, defendants shall begin retrofitting those units that are currently vacant as of the entry date of the Decree. If any relocation of current tenants is, in fact, necessary, defendants will first attempt to relocate those tenants to other vacant units within the respective complex in order to minimize any relocation expenses.
4. On a yearly basis beginning one year from the entry of this Decree, defendants shall provide a written certification to the United States from an architectural firm (or other person or entity) with expertise in the design and construction requirements applicable to multifamily housing, approved by the United States, that the modifications set forth in Appendix B at the units claimed to have been retrofitted by defendants during the applicable period have been correctly completed. This certification shall be based on on-site surveys conducted at the subject properties.

D. Additional Optional Alterations Available at Certain

Individual Units :

1. The defendants shall provide the alterations specified at Appendix D to accommodate an identified person with a disability ⁽³⁾ upon the written request of a prospective tenant or tenant residing in a unit at a subject property at which these optional alterations shall be offered. Any such optional alterations shall be completed within forty-five (45) days from the date the written request to have such alterations undertaken is returned to the appropriate rental office.
2. In the event that a tenant or prospective tenant requests to have an additional bedroom and/or bathroom retrofitted to accommodate another person with a disability as a tenant in a particular unit (as specified in Appendix D), then defendants shall pay that person's reasonable relocation or housing expenses while the retrofits are being made, plus seven hundred and fifty dollars ($750.00) to compensate any such person for the inconvenience.

E. Notification of Retrofits

1. Within thirty (30) days of the entry of this Decree, the defendants shall provide a copy of the notice attached hereto as Appendix C to current tenants of any unit scheduled to be retrofitted as set forth in Appendix B or to which the provisions pertaining to the optional retrofits set forth in Appendix D shall apply. Such notice shall also be provided to any prospective tenant prior to the entry of any lease.
2. The notice shall provide the following information:

a. Units Subject to Mandatory Retrofit Requirements: The notice shall inform tenants or prospective tenants of the mandatory retrofit program and that, if any of the mandatory accessibility modifications require a dislocation of a current tenant or delays the move-in date for a prospective tenant beyond the scheduled date of occupancy, defendants shall pay that person's reasonable relocation or housing expenses while the retrofits are being made. Upon a personal inquiry from any tenant or prospective tenant, the defendants shall further identify that defendants shall pay seven hundred-fifty dollars ($750.00) to compensate any tenant dislocated by the retrofits for the inconvenience.

b. Optional modifications: The notice shall inform tenants or prospective tenants of the availability of the optional modifications specified in Appendix D. It shall be sent with a self-addressed envelope and a form specifying what optional alterations may be made in the specific unit so that the tenant or prospect may mark which alterations he/she would like made to the unit and then return the form to the rental office at the subject property. The notice shall provide that the alterations may be requested at any time during the tenancy. The notice shall further specify that any such alterations shall be completed within forty-five (45) days from the date the election to have such alterations is returned to the appropriate rental office. It shall also provide that, in the event that a tenant or prospective tenant requests to have an additional bedroom and/or bathroom retrofitted to accommodate another person with a disability as a tenant in a particular unit (as specified in Appendix D), defendants shall pay that person's reasonable relocation or housing expenses while the retrofits are being made. Upon a personal inquiry from any tenant or prospective tenant, the defendants shall further identify that defendants shall pay seven hundred-fifty dollars ($750.00) to compensate any person dislocated by the retrofits for the inconvenience.

F. Nondiscriminatory Rental Procedures:

1. Defendants shall not refuse to lease a unit in any of the subject properties to a person with a disability who applies for an apartment which is available for rent but has not yet been brought into compliance with the accessibility provisions of the Act. Instead, defendants shall inform prospective tenants and applicants that the apartment will be retrofitted at no expense to them before they move in; and defendants shall compete the retrofitting within thirty (30) days of receipt of a completed application by any such prospective tenant requesting such a unit.
2. Defendants shall also include a provision, approved by the United States, in all leases that are signed or renewed after entry of this Decree specifying, that the defendants will have the right, upon sixty (60) days notice to the tenant, to modify the unit to bring it into compliance with the Act. Defendants shall also attach a copy of the notice in Appendix C to all such leases.

     For a period of five (5) years from the date of entry of this Consent Decree, defendants shall submit to the United States information regarding any covered multifamily dwellings that they design and/or intend to build, including any additional dwellings at any of the subject properties. The information shall be submitted before any applications are made for initial building permits. The following information shall be submitted:

1. The name and address of the project;
2. The names and addresses of all architects and site engineers;
3. A description of the project and the individual units, including number and type of dwellings and amenities in the project; and
4. A statement by any architect whom the defendants employ and who is knowledgeable in the design and construction requirements of the Act, the ADA, and the relevant guidelines and regulations, describing his/her knowledge and training in accessible design, and which certifies that he/she has reviewed the architectural, mechanical, and civil engineering plans and that the plans include design specifications that fully comply with the requirements of 42 U.S.C. § 3604(f)(3)(C), 42 U.S.C. § 12183(a)(1), and 28 C.F.R. Part 36.

V. CIVIL PENALTY

     Within ten (10) days of the date of entry of this Decree, Defendants shall pay the total sum of FIVE THOUSAND DOLLARS ($5,000.00) to the United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C). Said sum shall be paid by sending to plaintiff's counsel a check made payable to "United States of America."

VI. FUND TO FURTHER FAIR HOUSING

     Within thirty (30) days of the entry of this Decree, the defendants shall make a payment of TEN THOUSAND DOLLARS ($10,000.00) to a fair housing or disability rights organization located in any of the geographical areas in which the subject properties are located. The organization chosen shall be made subject to approval by the United States. This payment shall be used to assist such organization in furthering fair housing for persons with disabilities in any of the geographical areas in which the subject properties are located. The check shall be made payable to the organization and sent to the United States for forwarding to such organization.

     A. Within thirty (30) days of the entry of this Decree, defendants shall provide a copy of this Decree to all their agents and employees involved in the design, construction, rental, or sale of covered multifamily dwellings and secure the signed statement, attached hereto as Appendix E, from each agent or employee acknowledging that he/she has received, read and understands the Decree.

     B. Within thirty (30) days after the date on which a new employee or agent commences employment or an agency relationship with Defendants, each new employee or agent involved in the design, construction, rental, or sale of covered multifamily dwellings shall be given a copy of this Decree and be required to sign the statement, attached hereto as Appendix E, acknowledging that he/she has received, read and understands the Decree.

     C. Within thirty (30) days of the entry of this Decree, and on a yearly basis thereafter, beginning on or before the one year anniversary of the entry of this Decree, Defendants, and all their agents and employees involved in the design, construction, rental, or sale of covered multifamily dwellings shall attend a fair housing training session by a person(s) or entity approved by the United States. Defendants shall pay all costs of the training. Defendants shall secure a written certification from the trainer of each agent's and employee's attendance at the fair housing training.

VIII. PUBLIC NOTICE OF NONDISCRIMINATION POLICY

     A. During the term of this Decree, defendants shall post and prominently display the federal Fair Housing Poster as described by 24 C.F.R. 110.15 and 110.25 in the sales or rental offices of all dwellings owned or operated by them, including the subject properties, and in any other place in which persons may inquire about buying or renting dwellings from defendants.

     B. During the term of this Decree, defendants shall prominently include the phrase "Equal Housing Opportunity" or the fair housing logo as well as the phrase "Wheelchair Accessible" or the international symbol of accessibility in all newspapers and other written advertisements for dwellings rented by defendants. If human models are used in any promotional literature, defendants shall use some models who use wheelchairs in such promotional literature.

      C. Once the subject properties have been brought into compliance with the Act and the ADA, through implementation of the corrective actions set forth in Section III, above, and for the term of this Decree, defendants shall place in a conspicuous location in all future advertisements, brochures and promotional literature (including advertisements or promotional materials on the internet) regarding the subject properties, a statement that the dwelling units meet the Act's accessibility requirements at 42 U.S.C. § 3604(f)(3).

IX. ADDITIONAL REPORTING AND DOCUMENT
RETENTION REQUIREMENTS

     A. For the duration of this Decree, defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any formal or informal complaint against them, their employees or agents, regarding equal opportunity in housing, including any complaints of discrimination under the Act or the ADA. Defendants shall also promptly provide the United States all information it may request concerning any such complaint.

     B. For the duration of this Decree, Defendants are required to preserve all records related to this Decree regarding the subject properties and all future covered multifamily dwellings designed, constructed, owned, operated or acquired by them. Upon reasonable notice to Defendants, representatives of the United States shall be permitted to inspect and copy any of Defendants' records or inspect any covered dwelling or any covered public and common use areas under Defendants' control at any and all reasonable times so as to determine compliance with the Consent Decree.

     C. Within one hundred and eighty (180) days after the entry of this Decree, and thereafter on the anniversary of entry of this Decree throughout the term of the Decree, Defendants shall submit a report that includes the following:

1. All documents respecting the modifications required in section III of this Decree;
2. The signed statement of each agent and employee acknowledging that he/she received, read and understands the Decree;
3. Written certification of each agent's and employee's attendance at fair housing training; and
4. All advertising or promotional literature regarding the Defendants' covered multifamily dwellings.

X. DURATION OF DECREE AND TERMINATION OF LEGAL ACTION

     A. Except for certain subject properties that may be sold in an arm's length transaction as allowed below, this Consent Decree shall remain in effect for five (5) years and three (3) months after the date of its entry.

     B. Upon the expiration of three (3) years and three (3) months from the entry of this Decree, defendants shall have the right to sell any or all of the subject properties in an "arm's length" transaction. ⁽⁴⁾ An "arm's length transaction" is a sale for fair market value to any person(s) not currently employed by, or otherwise associated with, the defendants and in which the defendants retain no direct or indirect interest or benefit in the subject property. The arm's length transaction sale of any subject property shall have the effect of terminating the application of this Consent Decree to that subject property, assuming the following pre-conditions for the sale of the subject property have been met:

1. Defendants have completed all of the mandatory retrofits required by this Consent Decree;
2. Defendants have provided all of the annual certifications required under Section III C.4 or have otherwise submitted any such certification in advance of the annual reporting date to certify completion of all of the mandatory retrofits required under this Consent Decree.
3. Defendants have provided to the United States at least sixty (60) days advance notice indicating that defendants, or any one of them, intend to sell one or all of the subject properties and identifying such properties. The United States may inspect the property or properties within that sixty (60) days to confirm that the mandatory retrofits have been completed as certified. If defendants' notice applies to more than two (2) complexes at any one time, the United States shall be afforded an additional forty-five (45) days for each additional two properties to complete its inspection of the properties;
4. Defendants have provided to the United States at least thirty (30) days prior to entering into a binding contract for the sale of any subject property the following information regarding the sale and any prospective purchaser: name, address, telephone number, certification that the prospective purchaser is not currently employed by or otherwise associated with the defendants and that the proposed sale is an "arms length" transaction, and any other documents requested by the United States for purposes of ensuring that the sale is an arm's length transaction;
5. The United States, within thirty (30) days of receiving the notice specified in paragraph 4, has not objected to the sale based on a failure to meet the requirements of this Section X; and
6. Defendants have complied with the requirements of this Consent Decree.

     C. By consenting to entry of this Decree, the United States and defendants agree that in the event that defendants engage in any future violation(s) of the Fair Housing Act, such violation(s) shall constitute a "subsequent violation" pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii).

     D. The Complaint in this action is dismissed with prejudice. The Court, however, shall retain jurisdiction for the term of this Consent Decree to enforce the terms of the Decree. The United States may move the Court to extend the duration of the Decree in the interests of justice.

     E. The United States and Defendants shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Decree prior to bringing such matters to the Court for resolution. However, in the event of a failure by Defendants to perform in a timely manner any act required by this Decree or otherwise to act in conformance with any provision thereof, the United States may move this Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed, and an award of any damages, costs, and reasonable attorneys' fees which may have been occasioned by the violation or failure to perform.

XI.TIME FOR PERFORMANCE

     Any time limits for performance imposed by this Consent Decree may be extended by the mutual agreement of the United States and the relevant Defendants.

     Each party to this Consent Decree shall bear its own costs and attorney's fees associated with this litigation.

      IT IS SO ORDERED:

     This ______ day of _________________, 2002.                                         

_______________________________
UNITED STATES DISTRICT JUDGE

     Agreed to by the parties as indicated by the signatures of counsel below.

APPENDIX A

ACCESSIBILITY MODIFICATIONS TO PUBLIC AND COMMON
USE AREAS

APPENDIX A-1

ACCESSIBILITY MODIFICATIONS TO PUBLIC AND COMMON USE AREAS AT
RIVERBEND CLUB - ATHENS, GA

     Defendants shall retrofit the public and common use areas at Riverbend Club Apartments in Athens, GA by undertaking the following corrective actions for one unit per building in buildings 1, 2,3, 4, 7, 8. and 9 and the rental office at that complex:

APPENDIX A-2

ACCESSIBILITY MODIFICATIONS TO PUBLIC AND COMMON USE AREAS AT
PLAYERS CLUB/PIRATE'S PLACE - GREENVILLE, NC

     Defendants shall undertake the following corrective actions to the public and common use areas at Players Club/Pirate's Place Apartments in Greenville, NC ⁽⁵⁾:

APPENDIX A-3

ACCESSIBILITY MODIFICATIONS TO PUBLIC AND COMMON USE AREAS AT
POLO CLUB - ATHENS

     Defendants shall undertake the following corrective actions to the public and common use areas at Polo Club Apartments in Athens, GA ⁽⁶⁾:

APPENDIX A-4

ACCESSIBILITY MODIFICATIONS TO PUBLIC AND COMMON USE AREAS AT
PLAYERS CLUB - STATESBORO

     Defendants shall undertake the following corrective actions to the public and common use areas at Players Club Apartments in Statesboro, GA for the covered buildings containing the 14, 22-bedroom and 20, 4-bedroom units (buildings 11, 14,15,20,21, 23,24,25,26 and 27) subject to the mandatory retrofits provisions in Appendix B:

APPENDIX A-5

ACCESSIBILITY MODIFICATIONS TO PUBLIC AND COMMON USE AREAS AT
TOWNE CLUB - STATESBORO

     Defendants shall undertake the following corrective actions to the public and common use areas at Towne Club Apartments in Statesboro, GA ⁽⁷⁾:

APPENDIX A-6

ACCESSIBILITY MODIFICATIONS TO PUBLIC AND COMMON USE AREAS AT
PLAYERS CLUB WEST - ATHENS

     Defendants shall undertake the following corrective actions to the public and common use areas at Players Club West Apartments in Athens, GA : ⁽⁸⁾

APPENDIX A-7

ACCESSIBILITY MODIFICATIONS TO PUBLIC AND COMMON USE AREAS AT
TOWNE CLUB - ATHENS

     Defendants shall undertake the following corrective actions to the public and common use areas at Towne Club Apartments in Athens, GA : ⁽⁹⁾

APPENDIX B

REQUIRED ACCESSIBILITY MODIFICATIONS TO COVERED
GROUND FLOOR UNITS

APPENDIX B-1

ACCESSIBILITY MODIFICATIONS TO INTERIORS OF
COVERED GROUND FLOOR UNITS
RIVERBEND, ATHENS

     Defendants shall undertake the following corrective actions to the interiors of one unit per building in buildings 1, 2, 3, 4, 7, 8, and 9 of the covered ground floor units at Riverbend Club, Athens.

• Number of covered units: 45
• Number of covered units to be retrofitted: 7

Type of Unit:      Four Bedroom Units ⁽¹⁰⁾

APPENDIX B-2

ACCESSIBILITY MODIFICATIONS TO INTERIORS OF
COVERED GROUND FLOOR UNITS
PLAYERS CLUB/PIRATE'S PLACE, GREENVILLE

     Defendants shall undertake the following corrective actions to the interiors of the covered ground floor units at Players Club/Pirates' Place, Greenville, NC:

• Total number of covered units: 48
• Total number of units to be retrofitted: 46 ⁽¹⁵⁾

1. Type of Unit:    Four Bedroom Units.

2. Type of Unit:      Four Bedroom Units ("Accessible" Model).

APPENDIX B-3

ACCESSIBILITY MODIFICATIONS TO INTERIORS OF
COVERED GROUND FLOOR UNITS
POLO CLUB, ATHENS

     Defendants shall undertake the following corrective actions to the interiors of the covered ground floor units at Polo Club, Athens.

• Total number of covered units: 60
• Total number of units to be retrofitted: 51 ⁽¹⁹⁾

1. Type of Unit:      Two Bedroom Units. ⁽²⁰⁾

2. Type of Unit:      Three Bedroom Units

3. Type of Unit:      Four Bedroom Units

APPENDIX B-4

ACCESSIBILITY MODIFICATIONS TO INTERIORS OF
COVERED GROUND FLOOR UNITS
PLAYERS CLUB, STATESBORO

     Defendants shall undertake the following corrective actions to the interiors of the covered ground floor units at Players Club, Statesboro:.

• Total number of covered units: 60
• Total number of units to be retrofitted: 34 ⁽²⁸⁾

1. Type of Unit:      Two Bedroom Units.

2. Type of Unit:       Four Bedroom Units

APPENDIX B-5

ACCESSIBILITY MODIFICATIONS TO INTERIORS OF
COVERED GROUND FLOOR UNITS
TOWNE CLUB, STATESBORO

     Defendants shall undertake the following corrective actions to the interiors of the covered ground floor units at Towne Club, Statesboro: