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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO


UNITED STATES OF AMERICA,
     Plaintiff,

v.

No. CIV-01-0054-E-BLW

ALLAN HORSLEY, and HORSLEY
CONSTRUCTION,
      Defendants.

______________________________________


CONSENT DECREE

This Consent Decree resolves the above-captioned case brought by the United States of America against defendants Allan Horsley and Horsley Construction ("Defendants"). The Complaint alleges that Defendants discriminated against persons with disabilities by failing to design and construct the covered multifamily dwellings at the Elms Apartments in Pocatello, Idaho ("the Elms") in accordance with subsection 804(f)(3)(C) of the Fair Housing Act ("the Act"), 42 U.S.C. § 3604(f)(3)(C).

Defendants are the developers and owner of the Elms. The Elms has 12 apartments, all of which are located on the ground floor and are "covered multifamily dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(B). The apartments and the common areas of the Elms are subject to the requirements of § 3604(f)(3)(C), which mandates the following features of accessible and adaptive design: (a) public use and common use areas that are readily accessible to and usable by persons with disabilities; (b) doors designed to allow passage into and within all premises that are sufficiently wide to allow passage by persons using wheelchairs; (c) an accessible route into and through the dwelling; (d) light switches, electrical outlets, thermostats, and environmental controls in accessible locations; (e) reinforcements in bathroom walls to allow later installation of grab bars; and (f) usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about the space. Defendants admit that they failed to design and construct the Elms in compliance with these requirements.

The United States and Defendants agree that this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. § 1345 and 42 U.S.C. § 3614(a). The parties also agree that the claims against 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 ADJUDGED, ORDERED, and DECREED:

  1. GENERAL INJUNCTION

Defendants, their officers, employees, agents, heirs, successors and assigns, and all other persons in active concert or participation with them, are permanently enjoined from:

  1. Discriminating on the basis of disability, as prohibited by the Act 42 U.S.C. § 3604(f)(1) - (3) and as set forth in the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991) ("the Guidelines"); and

  2. Taking any other action that violates the federal Fair Housing Act, 42 U.S.C. § 3601 et seq.

  1. PAYMENTS TO AGGRIEVED PERSONS LINDSEY HUNTSMAN AND INTERMOUNTAIN FAIR HOUSING COUNCIL

  1. Defendants shall pay the total sum of TEN THOUSAND DOLLARS ($10,000) in monetary damages to Lindsey Huntsman for damages allegedly suffered as a result of Defendants' admitted failure to design and construct the Elms in compliance with the Act. Defendants' payment to Ms. Huntsman is in settlement of a disputed claim; defendants do not admit liability to Ms. Huntsman. Defendants shall pay said money within 90 days of the date of entry of this decree, by sending a certified check payable in that amount to Lindsey Huntsman, P.O. Box 69, Iona, ID 83427, provided that no amount shall be paid pursuant to this paragraph before Ms. Huntsman has executed a written release of all claims, legal or equitable, that she might have against Defendants relating to the claims asserted in this lawsuit and that release has been delivered to Defendants' counsel. (1)

  2. Defendants shall pay the total sum of FOUR THOUSAND DOLLARS ($4,000) in monetary damages to Intermountain Fair Housing Council for damages allegedly suffered as a result of Defendants' admitted failure to design and construct the Elms in compliance with the Act. Defendants' payment to IFHC is in settlement of a disputed claim; defendants do not admit liability to IFHC. Defendants shall pay said money within 90 days of the date of entry of this decree, by sending a certified check payable in that amount to Intermountain Fair Housing Council, 310 North 5th Street, Boise, ID 83701, provided that no amount shall be paid pursuant to this paragraph before Intermountain Fair Housing Council has executed a written release of all claims, legal or equitable, that it might have against Defendants relating to the claims asserted in this lawsuit and that release has been delivered to Defendants' counsel. (2)

  1. PAYMENTS TO ADDITIONAL AGGRIEVED PERSONS

  1. Within fifteen (15) days following the expiration of eighteen (18) months from the entry of this Decree, Defendants shall pay, to such person(s) as the United States directs, the sum of FOURTEEN THOUSAND DOLLARS ($14,000) for the purpose of compensating any aggrieved persons who may have suffered as a result of Defendants' failure to design and construct The Elms in compliance with the Act. The United States shall determine in its sole discretion who is aggrieved and the appropriate amount of damages to be paid to such persons. Any such payments will be made in settlement of disputed claims, and Defendants do not admit liability to such person(s). No amount shall be paid pursuant to this paragraph before the recipient has executed a written release of all claims, legal or equitable, that he or she might have against Defendants relating to the claims asserted in this lawsuit, and that release has been delivered to Defendants' counsel. No amount shall be paid in excess of the amounts due to be paid under this Decree.

  2. No earlier than one year and no later than thirteen (13) months after entry of this Decree, Defendants shall send a copy of the Notice to Potential Victims of Housing Discrimination ("Notice to Potential Victims") (Appendix A) to the following organizations:

    1. Intermountain Fair Housing Council, 310 North 5th Street, Boise, ID 83701.

    2. Co-Ad, Inc., 4477 Emerald, Suite B-100, Boise, ID 83706.

    3. LIFE, 223 Harrison, American Falls, ID 83211.

    4. LIFE, P.O. Box 86, Blackfoot, ID 83221.

    5. LINC, 2500 Kootenai Street, Boise, ID 83705.

    6. LIFE, 2311 Park Avenue, Suite 7, Burley, ID 83318.

    7. LINC Canyon County, 317 Happy Day Blvd., #130, Caldwell, ID 83605.

    8. Disability Action Center, 1323 Sherman Ave., Suite 6, Coeur D'Alene, ID 83814.

    9. LIFE, P.O. Box 306, Fort Hall, ID 83203.

    10. LIFE, 2110 Rollandet Avenue, Idaho Falls, ID 83402.

    11. Disability Action Center - North West, 124 East Third Street, Moscow, ID 83843.

    12. Housing SW # 2, 1108 West Finch Drive, Nampa, ID 83651.

  3. Nothing in this section shall preclude the United States from making its own efforts to locate and provide notice to potential aggrieved persons.

  4. In the event that the United States directs distribution of less than the total amount due to be paid under this section to aggrieved persons, the money remaining to be paid shall be paid to an organization selected by Defendants from a list to be provided by the United States for the purpose of providing increased housing and/or residential accessibility for persons with disabilities.

  1. PAYMENT IN FURTHERANCE OF FAIR HOUSING IN IDAHO

Within fifteen (15) days following the expiration of three (3) years from the entry of this Decree, Defendants shall pay an additional TEN THOUSAND DOLLARS ($10,000) for the purpose of providing increased housing and/or residential accessibility for persons with disabilities in Idaho. Defendants shall pay this money by mailing a certified check to an organization selected by Defendants from a list to be provided by the United States.

  1. CIVIL PENALTY

Within three (3) years of the entry of this Decree, Defendants shall pay the total sum of FOUR THOUSAND DOLLARS ($4,000) to the United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C). Defendants deny the appropriateness of a civil penalty in this matter, but have agreed to pay one in settlement of disputed claims. Said sum shall be paid by submitting a certified check made payable to the United States of America to counsel for the United States. (3)

  1. NEW CONSTRUCTION

  1. Defendants shall design and construct, or engage others to design and construct on their behalf, the accessible multifamily housing described below. This accessible multifamily housing must be completed within three (3) years of entry of this Consent Decree, and must be located within two (2) miles of the center of the campus of Idaho State University in Pocatello, Idaho.

    1. One four-plex, consisting of four four-bedroom units, for a total of sixteen bedrooms. The public and common use areas of this four-plex must comply with ICC/ANSI A117.1-1998, the 1998 edition of the American National Standard for Accessible and Usable Buildings and Facilities ("ANSI-1998"). The dwelling units of this four-plex must be ANSI-1998 Type A (fully accessible) units.

    2. Six duplexes, consisting of four bedrooms each, for a total of twenty-four bedrooms. The public and common use areas of all six duplexes must comply with ANSI-1998. The dwelling units of three of these duplexes must be ANSI-1998 Type A (fully accessible) units, and the dwelling units of the other three duplexes must comply with the Fair Housing Amendments Act, the Guidelines, and HUD's Fair Housing Act Design Manual (revised April 1998) ("the Design Manual").

    3. Defendants shall engage a licensed architect familiar with the provisions of ANSI-1998, the Fair Housing Amendments Act, the Guidelines, and the Design Manual to design the accessible multifamily housing described in the preceding paragraphs. Defendants shall also submit all specifications, hardware schedules, site plans, blueprints, and relevant product literature (for accessible appliances, etc.) to the United States for review at least thirty (30) days prior to the commencement of construction.

  2. Defendants shall, with respect to this new construction, submit to counsel for the United States, before applying for the initial building permits for the project, a written statement from an architect involved with the project acknowledging and describing his or her knowledge of and training in the requirements of § 3604(f)(3)(C) of the Act, the Guidelines, the Design Manual, ANSI-1998, and in the field of accessible design and certifying that he/she has reviewed such plans and section VI of this Decree and that the plans include design specifications that comply with the applicable requirements of the Act, the Guidelines, the Design Manual, and ANSI-1998, as set forth in section VI of this Decree.

  3. Within thirty (30) days of completion of this new construction, Defendants shall submit to counsel for the United States a written statement from an architect involved with the project acknowledging and describing his or her knowledge of and training in the requirements of § 3604(f)(3)(C) of the Act, the Guidelines, the Design Manual, ANSI-1998, and in the field of accessible design and certifying that he/she has inspected the completed construction and reviewed section VI of this Decree and that the completed construction complies with the applicable requirements of the Act, the Guidelines, the Design Manual, and ANSI-1998, as set forth in section VI of this Decree.

  1. NOTICE TO THE PUBLIC OF DEFENDANTS NON-DISCRIMINATION POLICY

  1. Defendants shall post and prominently display in the rental offices of all rental properties owned by Defendants, or in another prominent location at all rental properties without rental offices owned by Defendants, a sign no smaller than ten (10) by fourteen (14) inches indicating that all dwellings are available for rent on a nondiscriminatory basis. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement.

  2. For the duration of this Consent Decree, in all future advertising in newspapers, and on pamphlets, brochures and other promotional literature regarding any multifamily housing owned by Defendants, Defendants shall place, in a conspicuous location, a statement that the dwelling units include features for persons with disabilities required by the federal Fair Housing Act.

  3. When Defendants build any new multifamily dwellings or units, Defendants will notify the organizations listed in subparagraph III.2 above that the units are available and accessible under the Act.

  1. REPORTING AND DOCUMENT RETENTION REQUIREMENTS

  1. Defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written administrative or legal complaint against Defendants or any employees or agents of Defendants, regarding equal opportunity in housing. Defendants shall also promptly provide the United States all information it may request concerning any such complaint.

  2. For the term of this Consent Decree, Defendants are required to preserve all records related to this Consent Decree, for all properties 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 records of Defendants bearing on compliance with this Consent Decree at any and all reasonable times; provided, however, that the United States shall endeavor to minimize any inconvenience to Defendants from such inspections.

  1. INSPECTION OF NEW MULTIFAMILY HOUSING

Upon thirty (30) days' notice to Defendants, representatives of the United States shall be permitted to inspect any new multifamily housing designed and/or constructed by or on behalf of Defendants, including but not limited to the new construction described in section VI above, to ensure compliance with this Consent Decree at any and all reasonable times; provided, however, that the United States shall endeavor to minimize any inconvenience caused by such inspections.

  1. REMOVAL OF LIS PENDENS

Within fifteen (15) days of Defendants' satisfaction of their obligations pursuant to section II of this Consent Decree, the United States shall remove the lis pendens it filed with respect to the Elms.

  1. DURATION AND ENFORCEMENT OF DECREE AND TERMINATION OF LEGAL ACTION

  1. This Consent Decree shall remain in effect for five years after the date of its entry and shall be binding upon the parties and their officers, employees, agents, heirs, successors and assigns, and all other persons in active concert or participation with them. 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).

  2. The complaint in this action shall be 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.

  3. Nothing in this Decree shall affect the rights of persons who are neither parties to the Decree nor recipients of payments pursuant to the Decree with respect to the accessibility of the Elms or any other dwellings designed and/or constructed by or on behalf of Defendants.

    >LI>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, an award of any damages, costs, and reasonable attorneys' fees which may have been occasioned by the violation or failure to perform, and any other relief necessary to fulfill the purposes of this Decree.

  1. TIME FOR PERFORMANCE

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

  1. COSTS OF LITIGATION

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

So ORDERED this _______ day of ______________ , 2002.

United States District Judge

AGREED TO BY:


For Plaintiff, United States of America, For Defendants, Allen Horsley and Horsley Construction,

JOAN A. MAGAGNA, Chief
TIMOTHY J. MORAN
RICHARD A. KOFFMAN
U.S. Department of Justice
Civil Rights Division
Housing & Civil Enforcement Section - G St
950 Pennsylvania Avenue
Washington, D.C. 20530
202-305-3102
FAX: 202-514-1116

THERESA L. KITAY, ESQ
Coughlin & Kitay, P.C.
3091 Holcomb Bridge Road
Suite A-1
Norcross, GA 30071
770-840-8483
FAX: 770-840-9492

THOMAS MOSS
United States Attorney

NICK L. NIELSON, ESQ.
P.O. Box 6159
Pocatello, ID 83205
208-232-1735
FAX: 208-234-9821

NICHOLAS J. WOYCHICK
Assistant United States Attorney
Wells Fargo Center
877 W. Main St., Ste. 201
Boise, ID 83702
208-334-1211
FAX: 208-334-1414


1. Defendants shall fax photocopies of the transmittal letter and the check to counsel for the United States at 202-514-1116.

2. Defendants shall fax photocopies of the transmittal letter and the check to counsel for the United States at 202-514-1116.

3. If any of the payments required under this Decree are made after the prescribed time, for whatever reason, such payments shall include interest from the prescribed time of payment, calculated by the formula set forth in 28 U.S.C. § 1961. Payment of such interest shall be in addition to any other remedies available to the United States' for delays in payment.


Signed: January 17, 2002.

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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