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R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division
STEVEN H. ROSENBAUM
DONNA M. MURPHY
BURTIS M. DOUGHERTY
KATHLEEN M. PENNINGTON
Trial Attorneys
U.S. Department of Justice
Housing and Civil Enforcement Section
Civil Rights Division
950 Pennsylvania Avenue, N.W. - NWB
Washington, D.C. 20530
Telephone:  (202) 353-9759
Facsimile:  (202) 514-1116

MCGREGOR W. SCOTT
United States Attorney
MICHAEL A. HIRST
Assistant U.S. Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814-2322
Telephone:  (916) 554-2781
Facsimile:  (916) 554-2900

Attorneys for the United States of America
SID M. ROSENBERG, Esq.Rosenberg & Link
725 30th Street, Suite 107
Sacramento, CA 95816
Telephone: (916) 447-8101
Facsimile: (916) 447-4750

Attorney for the Defendant

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA

Plaintiff,

v.

No. S-02-1099 DFL DAD

BYRON CLAIBORNE,

CONSENT ORDER

Defendant.

___________________________________

I.    INTRODUCTION

1. The United States filed this action on May 21, 2002, to enforce the provisions of Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act), 42 U.S.C. §§ 3601-19. In its Complaint, the United States alleges that Defendant Byron Claiborne engaged in a pattern or practice of discrimination or denied rights to a group of persons based on sex in the rental of dwellings located at 3317 W Street and 3318 V Street, in the City of Sacramento, California (hereinafter "V & W Street Apartments") and 2738 Shirland Tract, in Auburn, California (hereinafter "Auburn Property"), in violation of 42 U.S.C. §§ 3604(a)-(c) and 3617.

2. The United States alleges that Defendant subjected female tenants at the V & W Street Apartments and the Auburn Property to extensive, continuous, unwelcome, and uninvited sexual harassment, including sexual comments and unwanted sexual touching; conditioned aspects of tenancy on compliance with sexual favors; and created a hostile environment for female tenants, in violation of the Act, 42 U.S.C. § 3604(b)-(c). The United States also alleges that Defendant's conduct resulted in the constructive eviction of some of the female tenants, in violation of 42 U.S.C. § 3604(a). The United States further alleges that Defendant engaged in threatening, intimidating, and retaliatory behavior toward the female tenants, in violation of 42 U.S.C. § 3617.

3. Defendant voluntarily sold the V & W Street Apartments on July 18, 2002, but continues to use the Auburn Property and a single family residence located at 2246 North Ave., Sacramento, as rental properties.

4. The parties have agreed that in order to avoid protracted and costly litigation, this matter should be resolved without a trial or adjudication of any of the facts alleged by the United States. Therefore, the parties consent to the entry of this Order. Agreement to the terms of this Order does not constitute any admission of liability on the part of Defendant. This Consent Order constitutes full resolution of the United States' claims that Defendant engaged in a pattern or practice of discrimination on the basis of sex at the subject properties.

II.    SCOPE AND TERM OF ORDER

5. The provisions of this Order shall apply to Defendant, his employees, agents, assigns, and all persons in active concert or participation with any of them.

6. This Order is effective immediately upon its entry by the Court. For purposes of this Order, the phrase "date of this Order" shall refer to the date on which the Court enters this Order.

7. This Order shall be in effect for a period of three years and three months from the date of this Order.

III.     INJUNCTION

8. It is ORDERED, ADJUDGED AND DECREED that Defendant, his agents, employees, assigns, and all persons in active concert or participation with any of them are hereby enjoined from:

  1. Refusing to rent a dwelling, refusing or failing to provide or offer information about a dwelling, or otherwise making unavailable or denying a dwelling to any person because of sex;
  2. Discriminating against any person in the terms, conditions or privileges of renting a dwelling, or in the provision of services or facilities in connection therewith, because of sex;
  3. Coercing, intimidating, threatening or interfering with any person in the exercise or enjoyment of, or on account of her having exercised or enjoyed, or on account of his/her having aided and encouraged any other person in the exercise or enjoyment of, any right granted by the Act; and
  4. Renting any portion of the first floor of the Auburn Property, except to family members, so long as Defendant resides at the Auburn Property.

9. For the term of this Order, Defendant's wife or a third party approved by the United States (hereinafter "Manager") shall manage all of the residential rental properties which Defendant owns (the "subject properties") (1) during all times that Defendant owns any residential rental properties for the duration of this Order. (2) The Manager shall be responsible for all aspects of management of the subject properties, including showing and renting units, making repairs, collecting rents, determining whom to rent to and/or evict, and all other aspects of the rental process. The door between the first floor and the second-floor corridor of the Auburn property shall be locked from the latter side, so that there is no access to the second floor from the first floor. Defendant shall refrain from entering the premises of the subject properties except that Defendant may do so upon 48 hours notice when accompanied by the Manager, when it is necessary for him to inspect the property or show it to a prospective buyer and that function cannot be reasonably delegated to the Manager or an agent. However, in exigent circumstances requiring immediate aid or action, Defendant may enter the premises unaccompanied for the period of the exigency. At all times during the duration of this Order that Defendant owns any interest in the subject properties, Defendant shall require the Manager to do the following:

  1. Implement, subject to the United States's approval, a written policy against sexual harassment, including a formal complaint procedure. A copy of this policy and procedure shall be provided to counsel for the United States within thirty (30) days after the date of entry of this Order. (3) This policy and procedure shall be implemented within fifteen (15) days if it is satisfactory to the United States, and at that time the Manager shall provide each current tenant at the subject properties with a copy of this Consent Order and the policy and procedure. In addition, during the term of this Order, the Manager shall provide a copy of the Consent Order and policy and procedure to each prospective tenant at the time he or she applies for housing.
  2. Ensure that all persons who will be performing any duties in relation to the subject properties are familiar with the requirements of the Fair Housing Act, particularly as they pertain to sex discrimination and sexual harassment.
  3. Post an "Equal Housing Opportunity" sign in any rental office through which the subject properties are rented, which sign indicates that all apartments are available for rent on a nondiscriminatory basis. An 11 inch x 14 inch poster substantially equivalent to the reduced sample appended to this Order as Exhibit A will satisfy this requirement. Such poster shall be placed in a prominent, well-lit, and easily readable location.
  4. Require that all advertising conducted for any of the subject properties in news-papers, telephone directories, radio, television or other media, and all billboards, signs (including at the entrance to the property), pamphlets, brochures and other promotional literature, include either a fair housing logo, the words "equal housing opportunity provider," and/or the following sentence:
  5. We are an equal opportunity housing provider. We do not discriminate on the basis of race, color, national origin, religion, sex, familial status or disability.

    The words or logo should be prominently placed and easily legible.

  6. Send to the United States the name and telephone number of each new tenant at the subject properties as well as certification that such tenant has received a copy of this Consent Order and the sexual harassment policy within 10 days of the date on which such tenant signs a lease. Maintain all rental records kept in relation to rental of the subject properties, and allow the United States to inspect and copy all such records upon reasonable notice.
  7. Notify the United States in the event it obtains any information indicating that Defendant is in violation of this Order.
  8. Provide any information reasonably related to compliance with this Order that is requested by the United States.

10. Defendant shall report to the United States in the event that he purchases, inherits, or otherwise acquires an interest in any residential real estate property, or in the event that he sells, transfers or otherwise disposes of any interest in any of the subject properties. Such notification shall be made within thirty (30) days after the purchase, inheritance, acquisition, sale, or transfer of interest and shall include the identity of the potential purchaser(s) or person(s) to whom the interest is being transferred.

IV.    COMPENSATION FOR AGGRIEVED PERSONS

11. Within forty-five (45) days after entry of this Order, Defendant shall pay a total amount of $92,500.00 to compensate aggrieved persons by checks payable to the United States and delivered to Michael Hirst, Assistant United States Attorney, U.S. Attorney's Office, 501 I Street, Sacramento, CA 98514. The $92,500 shall be paid to the aggrieved persons listed at Exhibit B (or their heirs) in amounts as allocated by the Department of Justice. As a prerequisite to receiving such payments, each aggrieved person (or her heirs) must execute and deliver to counsel for the United States the release at Exhibit C. In addition, within sixty (60) days after entry of this Order, Defendant Claiborne shall file an Acknowledgment of Satisfaction of Judgment with regard to any unlawful detainer judgments against any of the aggrieved persons at Exhibit B of which he is aware or made aware.

V.    CIVIL PENALTY

12. To vindicate the public interest, Defendant Claiborne shall pay the United States a sum of $7,5000 as a civil penalty. Defendant shall forward a check for the civil penalty, made payable to the United States of America, to counsel for the United States within 45 days of the entry of this Order.

13. In the event it is determined in any future action or proceeding brought by the United States or any agency thereof that Defendant engaged in any violation(s) of the Fair Housing Act after entry of this Order, such violation(s) shall constitute a "subsequent violation" pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii).

VI.     COMPLIANCE

14. Representatives of the United States shall be permitted to visit Defendant's rental properties to interview tenants and ensure compliance with the terms of this Consent Order.

VII.     DISMISSAL

15. The Court dismisses this action with prejudice, but shall retain jurisdiction for the duration of this Consent Order to enforce the terms of the Order.

16. The parties to this Consent Order shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Order prior to bringing such matters to the Court for resolution. However, in the event of a failure by Defendant, whether willful or otherwise, to perform in a timely manner any act required by this Order or in the event of any other act violating any provision hereof, 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 or non-performance of certain acts and an award of any damages, costs, and attorneys' fees which may have been occasioned by non-actions or actions.

VIII.   TIME FOR PERFORMANCE

17. Any time limits for performance imposed by this Consent Order may be extended by the mutual written agreement of the United States and Defendant.

IX.    COSTS OF LITIGATION

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

IT IS SO ORDERED.

Dated: ____________________, 2004.

____________________________
HONORABLE DAVID F. LEVI
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF CALIFORNIA

The undersigned apply for and consent to the entry of this Order:

FOR THE PLAINTIFF, UNITED STATES:

MCGREGOR W. SCOTT
United States Attorney
R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division
_____________________________
MICHAEL A. HIRST
Assistant U.S. Attorney
Chief, Affirmative Civil Litigation
_____________________________
STEVEN H. ROSENBAUM
Chief
DONNA M. MURPHY
Deputy Chief
BURTIS M. DOUGHERTY
KATHLEEN M. PENNINGTON
Trial Attorneys
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section
950 Pennsylvania Avenue, N.W. - NWB
Washington, D.C. 20530
Tel.: (202) 353-9759
Fax: (202) 514-1116

FOR THE DEFENDANT: _______________________________
SID M. ROSENBERG
Rosenberg & Link
725 30th Street, Suite 107
Sacramento, CA 95816
Telephone: (916) 447-8101
Facsimile: (916) 447-4750


EXHIBIT A

Housing Logo Graphic

EQUAL HOUSING OPPORTUNITY

We Do Business in Accordance With the Fair Housing Act

It is Illegal to Discriminate Against Any Person Because of Race, Color, Religion, Sex, Handicap, Familial Status (Having One or More Children), or National Origin

In the sale or rental of housing or residential lots.

In advertising the sale or rental of housing.

In the financing of housing.

In the appraisal of housing.

In the provision of real estate brokerage services.

Blockbusting is also illegal.

Anyone who feels he or she has been discriminated against should send a complaint to:

United States Department of Housing and Urban Development
Assistant Secretary for Fair Housing and Equal Opportunity
451 7th St., S.W.
Washington, D.C. 20410
1-800-669-9777
or

HUD's Pacific/Hawaii Regional Office
Fair Housing Enforcement Center
450 Golden Gate Ave.
P.O. Box 36003
San Francisco, CA 94102-3448
415-436-8400

or file a complaint online at:

http://www.hud.gov/complaints/housediscrim.cfm

or

contact the U.S. Department of Justice at:

Civil Rights Division
Housing and Civil Enforcement Section
950 Pennsylvania Ave., N.W. - NWB
Washington, D.C. 20035
1-800-896-7743 or 202-514-4713


EXHIBIT B

LIST OF AGGRIEVED PERSONS

Sharon Burke
Angela Gaitan Castillo
Julie Ferris
Sherry Grady
Iris Kelley
Melody Kho
Angela Lane
Theresa McCall
Tracy Mercurio
Sharon Moore
Danielle Mary Pastana
Rose Reeves
Cynthia Ronquillo


EXHIBIT C

RELEASE

In consideration for the parties' agreement to the terms of the Consent Order entered in United States v. Claiborne (No. S-02-1099 DFL DAD) (E.D. Cal.), and the Defendant's payment to me of $_____________, I,__________________________, hereby agree, effective upon receipt of payment, to remise, release and forever discharge all claims of any kind, nature or description whatsoever, related to the facts at issue in the litigation referenced above, or in any way related to that litigation, and any other claims arising from alleged housing discrimination on any bases up to and including the date of execution of this release, that I may have against Defendant Byron Claiborne, and his agents, employees, officers, heirs, executors, administrators, successors or assigns.

This is a full and final release of all known and disclosed as well as unknown and unanticipated injuries or damages arising out of the above-referenced civil action. I waive all rights or benefits which I have or in the future may have under the terms of Section 1542 of the Civil Code of the State of California, which provides:

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

I acknowledge and understand that, by signing this Release and accepting this payment, I am waiving any right to pursue my own legal action based on the discrimination alleged by the United States in this case.

I also acknowledge that I have been informed that I may review the terms of this Release with an attorney of my choosing, and to the extent that I have not obtained legal advice, I voluntarily and knowingly waive my right to do so.

This Release constitutes the entire agreement between Defendant Byron Claiborne and me, without exception or exclusion.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this ________ day of ____________________ , 2004.

________________________________________
(Signature)

Name:   ________________________________________


1. The definition of "subject properties" includes the properties covered by the Complaint, as well as any additional residential rental properties which Defendant may purchase or acquire during the term of this Order.

2. If Defendant wishes to change managers, he may do so provided that any subsequent manager must also be approved by the United States and comply with the requirements for the Manager as described in this Order.

3. Submissions to the United States shall be made to: U.S. Department of Justice, Housing & Civil Enforcement Section, 950 Pennsylvania Ave., N.W., Washington, D.C. 20036. Attn. DJ 175-11-315.


Document Filed: April 21, 2004
General Information Housing and Civil Enforcement Section
 
Leadership
Steven H. Rosenbaum
Chief
Contact
Housing & Civil
Enforcement Section
(202) 514-4713
TTY - 202-305-1882
FAX - (202) 514-1116
To Report an Incident of Housing Discrimination:
1-800-896-7743
Mailing Contact
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Housing and Civil Enforcement Section, NWB
Washington, D.C. 20530

Email: fairhousing@usdoj.gov

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