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Housing And Civil Enforcement Cases Documents

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS

UNITED STATES OF AMERICA,

           Plaintiff,

v.

DEER RUN MANAGEMENT CO., INC.;
MANAGEMENT CO., INC.; THE GREENS AT
MOORE MANAGEMENT CO., INC.; THE
GREENS AT OWASSO MANAGEMENT CO.,
INC.; THE LINKS AT BIXBY MANAGEMENT
CO., INC.; THE LINKS AT OKLAHOMA
CITY MANAGEMENT CO., INC.;
THE GREENS AT GRAND SUMMIT
MANAGEMENT CO., INC.; THE GREENS
AT SPRINGFIELD MANAGEMENT CO., INC.;
THE GREENS AT SHAWNEE MANAGEMENT
CO., INC.; CRAFTON, TULL & ASSOCIATES;
BOND CONSULTING ENGINEERS, INC.;
LINDSEY CONSTRUCTION CO., INC.; and
FUGITT & ASSOCIATES ARCHITECTS, INC.,

            Defendants.

Case Number: 04-CV-5252 (JLH) CONSENT DECREE

_________________________________________

I.    INTRODUCTION

1. The United States and defendants Deer Run Management Co., Inc.; The Greens at Broken Arrow Management Co., Inc.; the Greens at Moore Management Co., Inc.; The Greens at Owasso Management Co., Inc.; The Links at Bixby Management Co., Inc.; The Links at Oklahoma City Management Co., Inc.; The Greens at Grand Summit Management Co., Inc.; The Greens at Springfield Management Co., Inc.; The Greens at Shawnee Management Co., Inc.; Crafton, Tull & Associates ("Crafton"); Bond Consulting Engineers, Inc. ("Bond"); Lindsey Construction Co., Inc. ("Lindsey Const."); and Fugitt & Associates Architects, Inc. ("Fugitt"), collectively, the "Parties," have agreed to enter into this Consent Decree simultaneously with the filing of the United States of America's Complaint (the "Complaint") alleging that the defendants failed to design and construct certain apartment complexes in the states of Oklahoma, Missouri, Kansas, Tennessee, Arkansas, and Texas in accordance with the Fair Housing Act (the "FHA"), 42 U.S.C. § 3604(f)(1), (2) & (3)(C), and failed to design and construct places of public accommodation associated with those apartment complexes in violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12183(a)(1).

2. The United States' Complaint alleges that defendants' failure to design and construct eleven apartment complexes (the "Subject Properties") in accordance with the requirements of the FHA and the ADA constitutes a pattern or practice of discrimination against persons with disabilities and a denial of rights to a group of persons with disabilities that raises an issue of general public importance. The eleven (11) Subject Properties are described below:

(1) Deer Run Apartment Community is located at 2000 Frederick Road, Claremore, OK 74017. Deer Run Apartment Community has 312 apartments in 15 buildings, with 156 covered units on the ground floor. Defendants Lindsey Const., Fugitt, Crafton, and Deer Run Management Co., Inc., the general partner of Deer Run Apartments, L.P., engaged in the development, construction, design, engineering, management, and/or operation of the Deer Run Apartment Community.

(2) The Greens at Broken Arrow is located at 1441 East Omaha Street, Broken Arrow, OK 74012. The Greens at Broken Arrow has 492 apartments in 41 buildings, with 246 covered units on the ground floor. Defendants Lindsey Const., Fugitt, Crafton, and The Greens at Broken Arrow Management Co., Inc., the general partner of The Greens at Broken Arrow, L.P., engaged in the development, construction, design, engineering, management, and/or operation of The Greens at Broken Arrow, Phases I and II.

(3) The Greens at Moore is located at 2100 South Santa Fe, Moore, OK 73160. The Greens at Moore has 696 apartments in 58 buildings, with 348 covered units on the ground floor. Defendants Lindsey Const., Fugitt, Crafton, and The Greens at Moore Management Co., Inc., the general partner of The Greens at Moore, L.P., engaged in the development, construction, design, engineering, management, and/or operation of The Greens at Moore, Phases I and II.

(4) The Greens at Owasso is located at 13600 E. 84th Street North, Owasso, OK 74055. The Greens at Owasso has 516 apartments in 43 buildings, with 258 covered units on the ground floor. Defendants Lindsey Const., Fugitt, Crafton, and The Greens at Owasso Management Co., Inc., the general partner of The Greens at Owasso, L.P., engaged in the development, construction, design, engineering, management, and/or operation of The Greens at Owasso, Phases I and II.

(5) The Links at Bixby is located at 11500 Links Court, Bixby, OK 74008. The Links at Bixby has 504 apartments in 42 buildings, with 252 covered units on the ground floor. Defendants Lindsey Const., Fugitt, Crafton, and The Links at Bixby Management Co., Inc., the general partner of The Links at Bixby, L.P., engaged in the development, construction, design, engineering, management, and/or operation of The Links at Bixby, Phases I and II.

(6) The Links at Oklahoma City is located at 700 N.E. 122nd Street, Oklahoma City, OK 73114. The Links at Oklahoma City has 588 apartments in 49 buildings, with 294 covered units on the ground floor. Defendants Lindsey Const., Fugitt, Crafton, and The Links at Oklahoma City Management Co., Inc., general partner of the Links at Oklahoma City, L.P., engaged in the development, construction, design, engineering, management, and/or operation of The Links at Oklahoma City.

(7) The Greens at Grand Summit is located at 14902 Grand Summit Boulevard, Grandview, MO 64030. The Greens at Grand Summit has 444 apartments in 37 buildings, with 222 covered units on the ground floor. Defendants Lindsey Const., Fugitt, and The Greens at Grand Summit Management Co., Inc., the general partner of The Greens at Grand Summit, L.P., engaged in the development, construction, design, engineering, management, and/or operation of The Greens at Grand Summit.

(8) The Greens at Springfield is located at 3126A East Valley Water Mill Road, Springfield, MO 65803. The Greens at Springfield has 456 apartments in 38 buildings, with 228 covered units on the ground floor. Defendants Lindsey Const., Fugitt, Crafton, and The Greens at Springfield Management Co., Inc., the general partner of The Greens at Springfield, L.P., engaged in the development, construction, design, engineering, management, and/or operation of The Greens at Springfield.

(9) The Greens at Shawnee is located at 6626 Hedge Lane Terrace, Shawnee, KS 66226. The Greens at Shawnee has 420 apartments in 35 buildings, with 210 covered units on the ground floor. Defendants Lindsey Const., Fugitt, and The Greens at Shawnee Management Co, Inc., the general partner of The Greens at Shawnee, L.P., engaged in the development, construction, design, engineering, management, and/or operation of The Greens at Shawnee.

(10) The Greens at Irene is located at 8285 Irene Boulevard, Memphis, TN 38125. The Greens at Irene has 504 apartments in 42 buildings, with 252 covered units on the ground floor. Defendants Lindsey Const., Fugitt, and Bond engaged in the development, construction, design, engineering, management, and/or operation of The Greens at Irene.

(11) The Greens at McKinney is located at 3191 Medical Center Drive, McKinney, TX 75069. The Greens at McKinney has 576 apartments in 48 buildings, with 288 covered units on the ground floor. Defendants Lindsey Const., and Fugitt engaged in the development, construction, design, engineering, management, and/or operation of The Greens at McKinney.

3. The FHA provides that, for residential buildings with four or more dwelling units, all ground-floor units in non-elevator buildings that were designed and constructed for first occupancy after March 13, 1991, are "covered units" and must include certain basic features of accessible and adaptable design to make such units accessible to persons with disabilities. 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(B). These features include: (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 and use the space. 42 U.S.C. § 3604(f)(3)(C). In addition, the ADA and the "Standards of Accessible Design," 28 C.F.R. Pt. 36, App. A ("ADA Standards") adopted by the U.S. Department of Justice to implement the design and construction requirements of Title III of the ADA, require that places of public accommodation (e.g., rental offices, sales office, public parking, golf courses, clubhouses, corporate apartments) built for first occupancy after January 26, 1993, be readily accessible to and usable by persons with disabilities.

4. The Subject Properties were constructed for first occupancy after March 13, 1991. Each of the 2,586 ground-floor apartments at the Subject Properties is a "covered multifamily dwelling" within the meaning of the FHA, 42 U.S.C. § 3604(f)(7)(B). These 2,586 apartments and the public and common use areas of all eleven Subject Properties are subject to the Accessible Design Requirements of the FHA.

5. The rental offices, corporate apartments, and the public golf courses, including the golf course clubhouses and/or pro shops located at or associated with the Subject Properties are public accommodations within the meaning of the ADA, 42 U.S.C. § 12181(7)(E), (7)(L). All of the places of public accommodation located at or associated with the Subject Properties were designed and constructed for first occupancy after January 26, 1993. They are subject to the accessibility requirements of the ADA, 42 U.S.C. § 12183(a)(1) and the ADA Standards for Accessible Design, 28 C.F.R. pt. 36, Appendix A (hereinafter, "ADA Standards").

6. The United States has conducted a survey of the Links at Bixby, Oklahoma, The Greens at Shawnee, Kansas, and The Greens at Springfield, Missouri to assess compliance with FHA and ADA requirements and has identified many features that do not meet those requirements at these complexes. (1) The survey showed, inter alia, that

  • The Subject Properties do not provide accessible routes from the parking area to numerous building entrances because of abrupt level changes (steps and curbs), steep running slopes greater than 8.3%, and steep cross slopes greater than 2%.
  • Many curb ramps on routes that persons with disabilities must use are not accessible because they have steep running slopes in excess of 8.3%, they are less than 36" wide, and they lack detectable warning textures.
  • Certain buildings at the Subject Properties lack accessible resident and visitor parking located on an accessible route to the building entrance.
  • Certain pedestrian walkways that would serve as accessible routes to public and common use areas have steep running slopes greater than 8.3% and steep cross slopes greater than 2%.
  • The door hardware on entrances to certain ground floor units are inaccessible round knobs that require tight grasping and twisting of the wrist to operate.
  • Certain exterior pedestrian routes have obstructions without cane detectible warnings that pose hazards to persons who are blind or have low vision.
  • Certain bathrooms and kitchens in covered units have insufficient clear floor space for persons who use wheelchairs to maneuver about and use the appliances, sinks, toilets and other fixtures.
  • The clubhouse main entrance doors have excessive abrupt level changes, steep running slopes greater than 8.33% and steep cross slopes greater than 2%. The clubhouse side entrance door has inadequate maneuvering space, and there are no ramps or elevators to provide access to the men's and women's locker rooms on the second floor of the clubhouses. Additionally, the showers in the men's and women's restrooms have doors that are too narrow, and there are steps leading to the pool.

7. In addition to the Subject Properties, Defendants Lindsey Const. and Fugitt, together with other affiliated entities, have designed and constructed for first occupancy after March 13, 1991, other multifamily housing complexes that do not fully comply with the accessibility requirements of the FHA. Defendants Lindsey Const. and Fugitt have also designed and constructed for first occupancy after January 26, 1993, places of public accommodation located at or associated with the additional multifamily housing complexes that do not fully comply with the accessibility requirements of the ADA. For purposes of this Consent Decree, these twenty-three (23) additional multifamily housing complexes and the places of public accommodation located at or associated with them shall be referred to as the "Additional Properties," identified in Appendix D.

8. In February 1999, defendants Lindsey Const. and Fugitt received notice from HUD, along with explanatory material containing the details of the FHA's design and construction provisions, regarding a complaint filed against them for violations of the design and construction provisions of the FHA at a number of their Arkansas multifamily dwellings. Before a charge was issued, these entities entered into an "Enforcement Agreement" in March 1999, and an "Addendum to Enforcement Agreement" in April 2000. This settlement covered over 58 properties and 4,900 covered units at complexes throughout the state of Arkansas. The following language was outlined on page 6 of the "Addendum to Enforcement Agreement," which was signed by these entities:

Respondents acknowledge that compliance under the Act includes designing and constructing covered multifamily dwellings in such a manner that (i) the public and common use portions are readily accessible to and usable by handicapped persons; (ii) all doors designed to allow passage into and within the premises are sufficiently wide to allow passage by handicapped persons in wheelchairs; (iii) the dwellings have the following features of adaptive design; an accessible route into and through the dwelling; light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; reinforcements in bathroom walls to allow later installation of grab bars; and usable kitchens and bathrooms such that an individual in a wheelchair can have the required maneuvering space.

Accordingly, defendants Lindsey Const. and Fugitt designed and constructed the Subject Properties and the Additional Properties or failed to correct some of the existing noncompliant features at the Subject Properties and the Additional Properties notwithstanding their knowledge of their duties and obligations under the FHA.

9. The Parties agree that this Court has jurisdiction over the subject matter of this case. The Parties further agree that the controversy should be resolved without further proceedings and without an evidentiary hearing. Therefore, the Parties have consented to the entry of this Consent Decree as indicated by the signatures appearing below. The provisions of this Decree shall be binding on defendants, their officers, employees, agents, successors and assigns and all other persons and entities in active concert or participation with them.

It is hereby ORDERED, ADJUDGED AND DECREED that:

II.    GENERAL INJUNCTION

10. Defendants, their officers, employees, agents, successors and assigns, and all other persons and entities in active concert or participation with them are enjoined from discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.C. §3604(f)(1)-(3) and implementing regulations and the ADA, 42 U.S.C. §§ 12182(a) and 12183(a)(1), and implementing regulations including the ADA Standards.

III.     CORRECTIVE ACTIONS

A. Relief Addressing Inaccessible Features at the Subject and Additional Properties (hereinafter collectively referred to as "Properties").

11. Agreement to Take Corrective Action: The defendants recognize that the Properties do not fully comply with the requirements of the FHA and its implementing regulations and that the places of public accommodation located at or associated with the Properties do not fully comply with the ADA and its implementing regulations, including the ADA Standards. To address this lack of compliance, defendants jointly agree to take the corrective actions necessary to bring the Properties into compliance with the FHA, implementing regulations, and the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991) (the "Guidelines"), and agree to bring the places of public accommodation located at or associated with the Properties into compliance with the ADA and implementing regulations, including the ADA Standards. To this end, defendants will take those actions described in Section III of the Decree and the Appendices to this Agreement.

12. Initial Surveys of Properties: Within fifteen (15) days from the date of entry of this Decree, Defendants shall retain one or more licensed design professionals approved by the United States ("Surveyor(s)"), to survey the thirty-one (31) Properties (2) remaining to be surveyed and the places of public accommodation associated with them to determine what actions must be taken to bring these properties into compliance with the FHA, ANSI, the Guidelines, the ADA and the ADA Standards. The designated Surveyor shall physically inspect all common areas, public accommodations (including golf courses and clubhouses, if any), and at least one apartment of each floor plan type (including but not limited to a unit of each floor plan type specifically modified for use by persons with disabilities) found within the complex, in accordance with survey instructions to be developed by defendants within fifteen (15) days of the date of entry of this Decree and approved by the United States, and shall review all applicable plans, in the order and priority identified in Appendix D. Within thirty (30) days of the date of entry of this Decree, defendants shall provide the United States with a schedule of the surveys for each of the thirty-one (31) Properties remaining to be surveyed, and for each complex, a detailed description of the scope and methodology of each survey, including how defendants will identify and survey representative unit types to ensure that all potential violations are identified in accordance with this Consent Decree and survey instructions developed by defendants and approved by the United States. The United States must approve the schedule, scope, and methodology of each survey. Such surveys may be scheduled with due regard for the convenience of the persons involved; however, all such surveys of the thirty-one (31) Properties shall be completed within twelve (12) months from the date of the United States' approval of the survey schedule. Within fifteen (15) days following completion of plan review and the physical survey of each of these properties, the Surveyor shall provide to the Parties a detailed written report setting out the scope and methodology of each survey and all features at the property that do not comply with the requirements of the FHA and, where applicable, the ADA.

13. Retrofit Proposal: Within thirty (30) days of receipt of the report of the Surveyor with respect to each of the thirty-one (31) Properties remaining to be surveyed, defendants shall submit to the United States a proposal and timetable for performing the retrofits required to bring all covered units and all common and public use areas at such property into compliance with the FHA, the Guidelines and, for places of public accommodation, into compliance with the ADA and the ADA Standards. (3)

14. Accessible Building Entrances on Accessible Routes and Accessible and Usable Public and Common Use Areas: Defendants shall retrofit the building entrances, accessible routes and the public and common use areas of the thirty-four (34) Properties as set forth and prioritized in Appendix D. All such retrofits shall be completed as soon as reasonably possible but no later than twelve (12) months from the date of the United States' approval of the retrofit proposal. Defendants shall pay all expenses associated with these modifications and shall attempt in good faith to minimize any inconvenience to the residents of the Properties. The defendants have designated ANSI A117.1-1986 as the standard to be used in making the retrofits so that building entrances, exterior pedestrian routes, and public and common use areas are "readily accessible to and usable by handicapped persons." (4) Accordingly, all such retrofits shall be performed in compliance with ANSI.

15. Public Accommodations: Defendants shall retrofit the places of public accommodation located at or associated with the thirty-four (34) Properties, including but not limited to rental offices, clubhouses and corporate executive apartments, as set forth and prioritized in Appendix D. All such retrofits shall be completed as soon as reasonably possible but no later than twelve (12) months from the date of the United States' approval of the retrofit proposal. Defendants shall pay all expenses associated with these retrofits and shall attempt in good faith to minimize any inconvenience to the residents of the Properties. All such retrofits shall be performed in compliance with the requirements of the ADA Standards.

16. Interior of Ground Floor Dwellings: Defendants shall be responsible for retrofitting the interiors of the ground floor dwellings at the thirty-four (34) Properties as set forth and prioritized in Appendix D. Defendants shall pay all expenses associated with those retrofits. Defendants have designated the Guidelines as the standard to be used for the retrofitting of dwelling unit interiors. Accordingly, all retrofits shall be performed in compliance with the Guidelines. The retrofits shall be carried out as follows:

  1. Within thirty (30) days of the entry of this Consent Decree or after the survey is completed, whichever is later, defendants shall send out or deliver the written notice, attached at Appendix F, to all current and prospective tenants of apartments in the relevant Property informing them that the retrofits needed to bring their unit into compliance with the FHA and the Guidelines are available without cost to tenants. It shall be sent with a self-addressed, postage-prepaid envelope specifying what alterations may be made in the specific unit so that the resident may mark which alterations he/she would like made to the unit and then return the form to defendants. As promptly as practical, but in any event no later than fourteen (14) days of receipt of a request for a modification from a tenant, the modifications requested will be completed.
  2. Notwithstanding the provisions of the preceding subparagraphs, all covered units which are to be modified under this Consent Decree must be retrofitted to comply with Appendix E no later than eighteen (18) months after the date of the United States' approval of the retrofit proposal, even if there has not been a vacancy in that unit since the date of the United States' approval of the retrofit proposal and even if a tenant has requested only partial retrofits of a unit. To facilitate this, the defendants will include a provision in all new leases or lease renewals specifying that the present owner of the Properties will have the right to modify the unit to bring it into compliance with the Act and Guidelines if the tenant is still living in the unit eighteen (18) months after the date of the United States' approval of the retrofit proposal.
  3. In the event that defendants are unable to comply with the timeframes set forth in this paragraph, defendants shall notify the United States and provide the number of requests and proposed timeline for completing all retrofits as soon as practicable. Such request for extension shall not be unreasonably denied.

17. Accessible Model Units: Defendants shall provide an accessible model unit at each of the Properties listed in Appendix D (5) except for Properties located in Fayetteville, Arkansas, where a single accessible model unit may be provided to serve those Properties. All such accessible model units shall be completed as soon as reasonably possible but no later than twelve (12) months from date of the United States' approval of the retrofit proposal. Defendants shall pay all expenses associated with the creation of the model units and shall attempt in good faith to minimize any inconvenience to the residents of the Properties.

Defendants have designated ANSI 4.32 and Guidelines Requirements 3-5, as the standard with which these model unit features shall comply. The design of the model units shall include, but not be limited to, removal of the cabinetry under the kitchen sink such that a person using a wheelchair can make a full forward approach to the sink in accordance with ANSI 4.32.5.5; either the removal of the oven unit such that a person using a wheelchair can make a full forward approach to the stovetop in accordance with ANSI 4.32.5.6 plus the provision of a separate oven appliance (i.e. convection oven) or the alternative removal of the necessary cabinetry to allow a full parallel approach to the oven in accordance with ANSI 4.32.5.7. Regardless of whether the forward or parallel approach to the oven is provided in the accessible model unit, the current or prospective tenant shall be provided with pictures and measurement details of the alternative retrofit option for his/her apartment unit. The model unit shall also provide accessible routes into and through the model units in accordance with Guidelines Requirement 3 and 4; light switches, electrical outlets, thermostats, and other environmental controls in accordance with Guidelines Requirement 5; and accessible bathrooms in accordance with Guidelines Requirement 7, with inclusion of roll-in shower or other similar accessible bathing area in accordance with ANSI 4.21 (with acceptance of pre-fabricated roll-in shower model approved by the United States), and installation of grab bars surrounding the bathing and toilet areas in accordance with ANSI 4.21.4. The accessible model units, not including the unit that is established in Fayetteville, Arkansas, may be rented, provided that they are available for inspection by prospective tenants on the same basis as model units not containing these accessible features.

After the expiration of this Consent Decree, interior dwelling units at the Properties shall not be considered to be compliant with the Fair Housing Act's accessible design requirements unless these accessible model units continue to be provided as described in this Decree.

18. Accessibility Options for Tenants: The defendants shall provide all current and prospective tenants with the option to view each accessible model unit and the various accessibility options provided in the model units as described in Paragraph 17. Defendants will notify current tenants in writing of how they may view the model and order features displayed there, within ten (10) days of the completion of the model unit at the property in which they reside. Any current or prospective tenant upon written request will be entitled to have an apartment with the appropriate number of bedrooms retrofitted to include the accessibility features of such model units, including the accessibility options of his or her choice. Upon written request, units shall be retrofitted to comply with the accessible model unit options and provided to the current or prospective tenant as soon as possible, but no later than fourteen (14) days after the request by the current or prospective tenant. Defendants will not charge any additional rent, deposit or other fee for the units in which retrofits are made. The rent for these units shall be the same as for equivalent units that are not in accordance with the accessible model unit options.

19. Inspection and Certification of Completed Retrofits at Properties: Defendants shall retain a licensed design professional (e.g., architect, civil engineer) approved by the United States (hereinafter the "Inspector") to conduct on-site inspections of the retrofits that have been performed at the thirty-four (34) Properties under this Decree, including Accessible Model Units, to determine if they have been completed in accord with this Decree. Within forty-five (45) days after each complex's retrofits are completed, the Inspector shall conduct an on-site inspection and determine whether or not the retrofit work was performed in accord with this Decree. The defendants agree to perform this work to the satisfaction of the Inspector. The defendants shall give the United States fifteen (15) days notice of such inspections and shall allow the United States access for these inspections so that the United States may send a representative to such inspection. Within thirty (30) days following each on-site inspection, the Inspector shall set out the results of each inspection, including deficits if any, in writing and shall send that report to the United States and defendants. The defendants shall correct any deficiencies identified by the Inspector within sixty (60) days following receipt of the report from the Inspector. All costs associated with these inspections and corrections to remedy deficits shall be paid by the defendants and such payments shall be made without regard to the Inspector's findings. Upon completion of the retrofits in accordance with the retrofit proposal, the Inspector shall certify in writing that the retrofits have been completed in accord with the specifications in the report.

20. Sale or Transfer of an Ownership Interest: The sale or transfer of an ownership interest, in whole or in part, in any of the Properties shall not affect defendants' continuing obligations to retrofit the properties as specified in this Decree. Should any defendant decide to sell or transfer ownership interest, in whole or in part, of any of the multifamily housing complexes and associated places of public accommodation that are subject to the terms of this Decree prior to the completion of the surveys, retrofits, and inspections at the thirty-four (34) Properties, as set forth and prioritized in Appendix D, that defendant will, at least thirty (30) days prior to completion of the sale or transfer: (a) provide to each prospective purchaser or transferee with a copy of the Decree and written notice that the complexes are subject to the Decree, including defendants' obligations to survey for FHA and ADA violations, complete required retrofit requirements outlined in Paragraphs 14-18 of the Decree following purchase or transfer, have retrofits surveyed, retention of accessible model units, and retention of accessibility features and options as outlined in Paragraphs 17 and 18 above; and (b) provide the United States by facsimile and first class mail, with written notice of its intent to sell or transfer ownership, along with a copy of the notice sent to each buyer or transferee, a certification as to how each notice was provided, and each buyer's or transferee's name, address and telephone number.

IV.    NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION

21. For the duration of this Consent Decree, defendants shall maintain, and provide to the United States upon request, the following information and statements regarding any covered, multifamily dwellings intended to be purchased, developed, built, designed, and/or engineered in whole or in part, by any of them or by any entities in which they have a position of control as an officer, director, member, or manager, or have a fifty-percent (50%) or larger ownership share:

(a) the name and address of the project;

(b) a description of the project and the individual units;

(c) the name, address, and telephone number of the civil engineer(s) involved with the project;

(d) a statement from the civil engineer(s) involved with the project acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act and the Americans with Disabilities Act in the field of accessible site design and certifying that he/she has reviewed the engineering documents for the project and that the design specifications therein fully comply with the requirements of the Fair Housing Act, the Fair Housing Accessibility Guidelines, the Americans with Disabilities Act, and the ADA Standards for Accessible Design;

(e) the name, address and telephone number of the architect(s) involved with the project; and

(f) a statement from the architect(s) acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act and the Americans with Disabilities Act in the field of accessible building and housing design and certifying that he/she has reviewed the architectural plans for the project and that design specifications therein fully comply with the requirements of the Fair Housing Act, the Fair Housing Accessibility Guidelines, the Americans with Disabilities Act, and the ADA Standards for Accessible Design.

22. If the engineering documents or architectural plans are revised, and the revisions could have any impact on the accessibility of the dwellings or complex, defendants shall obtain and maintain (and provide to the United States upon request) a statement from the site engineer or architect, as applicable, that all specifications in the revised engineering documents or architectural plans, as pertinent, comply with the requirements of the Fair Housing Act, the Fair Housing Accessibility Guidelines, the Americans with Disabilities Act, and the ADA Standards for Accessible Design.

V.     AGGRIEVED PERSONS

23. Establishment of Fund: Defendants shall deposit in an interest-bearing escrow account (the "Fund") within thirty (30) days of the entry of this Decree the sums of money identified by property contribution outlined in Appendix J for the purpose of paying any aggrieved persons who may have suffered as a result of defendants' failure to design and construct apartments in compliance with the FHA or ADA. Defendants shall be responsible for paying any fees, taxes, or administrative expenses associated with the Fund, and shall provide the United States with all pertinent information concerning the institution where the Fund is maintained and the terms and conditions of the account. Any interest that accrues shall be the property of the Fund.

24. Notification Procedure: Within thirty (30) days of the entry of this Decree, defendants, through a disability group chosen by defendants and agreed to by the United States, shall disseminate a Notice to Potential Aggrieved Parties ("Notice") (Appendix H) informing readers of the possibility of obtaining relief. The Notice shall be no smaller than three columns by six inches and shall be disseminated to disability advocacy groups in each state where defendants' properties are located, in a manner designed to target the geographic rental market for defendants' properties. Defendants shall ensure that the notices are distributed to each group's entire membership list and shall provide the necessary copies, mailing costs, and other costs and fees associated with such membership dissemination.

25. Alternate Notification Procedure: If defendants are unable to comply with Paragraph 24 above in every area where the Properties are located, the Notice shall then be published on three (3) occasions in the news section of the newspaper with the largest circulation in the relevant local area, no later than ninety (90) days after entry of the Decree. The publication dates shall be separated from one another by at least 21 days, and at least two of the publication dates shall be a Sunday. Within ten (10) days of each publication date, defendants shall provide the newspaper containing the Notice to counsel for the United States.

26. Tenant Notice: Within thirty (30) days of the entry of this Decree, defendants shall send the Notice, by first-class mail, to each and every current and former tenant at a covered unit and prospective tenants at the Properties during the period beginning two years prior to the entry of this Decree. The former tenant Notices shall be mailed to the last known address (that is not defendants' property address), or address to which a Security Deposition Disposition was sent, whichever is latest. Notices to prospective tenants shall be mailed to the address of guest cards or other prospective tenant records. Within forty-five (45) days of entry of this Decree, defendants shall provide to counsel for the United States proof that the Notice has been sent and a list of the recipients.

27. Availability of Rental Records: Within thirty (30) days of the entry of this Decree, defendants shall make available for inspection and copying by the United States its rental and application records including the name and contact information for persons who resided at, applied to reside at, or inquired about residing at any of the Properties on or after two (2) years prior to the entry of this Decree. To the extent defendants retain this information in electronic format, it shall be produced to the United States in electronic format.

28. United States' Efforts to Locate Potential Aggrieved Persons: No provision of this Decree shall be construed to preclude or in any way limit any efforts the United States may elect to make to contact, locate and provide notice to potential aggrieved persons.

29. Identification of Aggrieved Persons: The United States shall make preliminary determinations of the aggrieved persons for purposes of this Decree and, in consultation with such persons, of the appropriate amount of damages to be paid to each. The United States shall inform defendants of these determinations within 180 days after defendants notify the United States that the last notice required by Paragraphs 24-26 above has been disseminated. The United States will inform the defendants in writing of its preliminary determinations and shall provide a copy of a sworn declaration from each aggrieved person setting forth the factual basis of the claim. The defendants shall have fourteen (14) days to review the declaration and provide any documents or information that they believe may refute the claim to the United States. When there is a dispute with regard to whether a person is aggrieved and/or the compensation amount to be awarded to a person, the Parties shall jointly interview potential aggrieved persons and endeavor to provide a joint recommendation.

30. Payments to Aggrieved Persons: After receiving the defendants' comments, the United States shall file a motion for an order disbursing the settlement funds. The motion will be accompanied by the United States' recommendations for aggrieved persons who have agreed to accept and sign a release in exchange for the proposed monetary sum recommended as his/her damages award, along with a copy of the declarations and any additional information submitted by the defendants. Defendants may also submit any relevant information to the Court within ten (10) days of the United States' submission. When the Court issues an order approving or changing the United States' proposed distribution of funds for aggrieved persons, the defendants shall, within ten (10) days of the Court's order, instruct the administrator of the Fund to deliver to the United States checks payable to the aggrieved persons in the amounts approved by the Court. In no event shall the aggregate of all such checks exceed the sum of the Fund, including accrued interest. No aggrieved person shall be paid until he/she has executed and delivered to counsel for the United States the release at Appendix G.

31. Community Retrofit Fund: After the satisfaction of the requirements of Paragraphs 23-30 above and the corresponding time periods have expired, 16% of the amount then remaining in the Fund, or $200,000, whichever is less, shall be distributed to a disability group chosen by defendants and agreed to be the United States for the purposes of providing and administering a community retrofit fund. This "retrofit fund" shall provide a means for individuals with disabilities within Arkansas to make modifications to their residential dwellings so as to increase their accessibility to persons with disabilities.

  1. This retrofit fund is to be utilized to increase the accessibility of dwelling units beyond the minimum requirements of the FHA or applicable state or local law or to provide accessibility in dwellings units that are not presently required to meet the accessibility requirements of the FHA or applicable state or local law.
  2. The administration of the retrofit fund shall include the following: (1) advertising the availability of the money for retrofits; (2) taking applications for retrofits from or on behalf of persons with disabilities; (3) selecting from among the applicants for retrofits, based upon level of disability-related need for the requested retrofit and the applicant's financial need for assistance; (4) taking bids from contractors to complete the retrofits; (5) reviewing plans for the retrofits; (6) reviewing the completed retrofits; and (7) disbursing the retrofit funds for the completed work.
  3. Administrative expenses shall not exceed 10% of the Community Retrofit Fund.

32. Use of Community Retrofit Fund: The retrofit fund may be used by any individual who owns or rents a dwelling unit, or is about to purchase or rent such a unit, within the local communities wherein defendants' properties are located, to make retrofits to his or her dwelling unit to provide greater accessibility to individuals with disabilities subject to the following limitations:

  1. The dwelling must be located within the local communities wherein defendants' properties are located;
  2. The dwelling must be considered by the applicant as his or her primary personal residence;
  3. No more than Ten Thousand Dollars ($10,000) may be awarded to an applicant to make retrofits to his or her residence; and
  4. No more than Ten Thousand Dollars ($10,000) may be awarded to make retrofits at a single dwelling.

33. Defendants shall monitor the disability group's administration of the Community Retrofit Fund and shall submit annual reports to the United States, on the anniversary date of the entry of this Consent Order, detailing disbursement of monies in the fund.

34. After the satisfaction of Paragraphs 23-30 above and the corresponding time periods have expired, 84% of the Fund shall be contributed to the costs of defendants' retrofitting obligations under this Decree.

35. Civil Penalty: Defendants shall pay the total sum of Thirty Thousand Dollars ($30,000.00) to the United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C) and 42 U.S.C. § 12188(b)(2)(C)(i). Said sum shall be paid within ten (10) days of the date of entry of this Decree by submitting a check made payable to the United States of America to counsel for the United States.

VI.     ACKNOWLEDGMENTS AND TRAINING

36. Acknowledgments of Consent Decree: Within thirty (30) days of the entry of this Decree, defendants shall provide a copy of this Consent Decree to all of their agents and employees involved in the design, construction, and rental (i.e., property managers, leasing and rental agents, and licensed design professionals) of multifamily dwellings subject to the terms of this Decree and secure the signed statement, attached hereto as Appendix I, from each agent and employee acknowledging that he/she has received, read and understands the Decree. Likewise each of these defendants shall secure a signed form from any new agents and employees involved in the design, construction and rental of covered multifamily dwellings within thirty (30) days after the date on which a new employee or agent commences employment or an agency relationship with any of the defendants.

37. Training: To ensure compliance with this Decree, defendants shall be responsible for continuing to train its leasing and/or rental agents regarding the prohibitions against discrimination on the basis of disability under the Fair Housing Act, defendants' obligations to advise all current and prospective tenants regarding the availability of the accessible model units, and any and all of the accessible features available pursuant to Paragraphs 16-18 in a nondiscriminatory manner.

VII.   PUBLIC NOTICE OF NON-DISCRIMINATION POLICY

38. Nondiscrimination Signage: Within ten (10) days of the date of entry of this Consent Decree, defendants shall post and prominently display in the rental offices for the Properties, a sign no smaller than 10 x 14 inches indicating that all dwellings are available for rental on a nondiscriminatory basis. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement.

39. Accessibility Signage: Once the Properties have been brought into compliance with the Act, as described in Section III above, and for the term of this Consent Decree, defendants shall: (a) in Properties' rental offices a sign no smaller than 10 x 14 inches that states that the ground-floor apartments at the subject property may be viewed and retrofitted to comply with the accessible model unit options outlined in Section III above; and (b) place in a conspicuous location in all future advertisements, brochures and promotional literature regarding covered multifamily dwellings at the Properties a statement that the dwelling units meet the FHA's accessibility requirements at 42 U.S.C. § 3604(f)(3).

VIII.   REPORTING AND DOCUMENT RETENTION REQUIREMENTS

40. Complaints: Defendants shall advise the United States in writing within fifteen (15) days of receipt of any written administrative or legal fair housing complaint against any property owned, managed, or against any employees or agents of defendants working at or for any such property, regarding discrimination on the basis of disability in housing. Upon reasonable notice, defendants shall also provide the United States all information it may request concerning any such complaint. The defendants shall also advise counsel for the United States, in writing, within fifteen (15) days of the resolution of any complaint.

41. Records: For the duration of this Consent Decree, these defendants are required to preserve all records related to this Consent Decree regarding the Properties, including all future covered dwellings designed, constructed, owned, operated or acquired by them. Upon reasonable notice to the these defendants, representatives of the United States shall be permitted to inspect and copy any of defendants' records or inspect any covered dwelling under the defendants' control at any and all reasonable times so as to determine compliance with the Consent Decree; provided, however, that the United States shall endeavor to minimize any inconvenience to the defendants from such inspections.

42. Reporting: Within 180 days after the entry of this Consent Decree, and thereafter on the anniversary of entry of this Consent Decree, defendants shall submit a report to the United States that includes the following:

  1. all documents respecting the requirements outlined in Sections III and IV of this Consent Decree;
  2. the signed statement of each agent and employee acknowledging that he/she received, read and understands the Consent Decree; and
  3. all advertising or promotional literature regarding the covered multifamily dwellings at the Properties.

IX.     MISCELLANEOUS

43. Term of Decree: This Consent Decree shall remain in effect for five (5) years after the date of its entry, or until all retrofits (Section III) have been certified as compliant with the retrofit plan and the Community Retrofit Fund (Section V) is exhausted, whichever is sooner.

44. Subsequent Violation(s): By consenting to entry of this Consent Decree, the Parties agree that in the event it is determined in any future action or proceeding brought by the United States or any agency thereof that any of these defendants engaged in any violation(s) of the Fair Housing Act on the basis of disability, such violation(s) shall constitute one or more "subsequent violations" pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii).

45. Retained Jurisdiction to Enforce Decree: The Court shall retain jurisdiction for the duration of this Consent Decree to enforce the terms of the Decree, after which the case shall be dismissed with prejudice. Any party may move the Court to extend the duration of the Decree for good cause shown.

46. Dispute Resolution: The Parties shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Consent Decree prior to bringing such matters to the Court for resolution. However, in the event of a failure by the defendants to perform in a timely manner any act required by this Consent Decree or otherwise to act in violation of 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.

47. Time for Performance: Internal time frames imposed by this Consent Decree for the performance of certain acts may be extended by the mutual written agreement of the United States and the relevant defendant(s) without requirement for Court approval. The five year term of the Decree, however, may not be extended except by motion for good cause shown pursuant to paragraph 45.

48. Costs of Litigation: Each of the Parties to this Consent Decree shall bear its own costs and attorney's fees associated with this litigation.

49. Titles: The titles used in this Consent Decree are nonsubstantive descriptions included solely for the Parties' ease of reference and shall not be construed to alter the substantive provisions of this Decree.

It is so ORDERED this, the _____day of ________________ , 2004.

____________________________
United States District Judge

For the United States:



____________________________________
WILLIAM M. CROMWELL
Acting United States Attorney
Isaac Parker Federal Building
30 South Sixth Street, Room 216
Forth Smith, AR 72901
(479)783-5125
R. ALEXANDER ACOSTA
Assistant Attorney General

STEVEN H. ROSENBAUM
Chief
NICOLE PORTER
Deputy Chief

____________________________________
SUSAN BUCKINGHAM REILLY
Trial Attorney
Housing and Civil Enforcement Section

JEANINE M. WORDEN
Deputy Chief

____________________________________
JE YON JUNG
Trial Attorney U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Ave. N.W.
Washington, D.C. 20035
(202) 514-4713


On behalf of the Defendants Deer Run
Management Co., Inc.; The Greens at
Broken Arrow Management Co., Inc.; The
Greens at Moore Management Co., Inc.;
The Greens at Owasso Management Co.,
Inc.; The Links at Bixby Management Co.,
Inc.; The Links at Oklahoma City
Management Co., Inc.; The Greens at
Grand Summit Management Co., Inc.; The
Greens at Springfield Management Co.,
Inc.; The Greens at Shawnee Management
Co., Inc.; Lindsey Construction Co., Inc.;
and Fugitt & Associates Architects, Inc.:

ROY STANLEY, ESQ.
Lindsey Construction Co., Inc.
General Counsel
1165 Joyce Boulevard
Fayetteville, AR 72703
(479) 521-6686 phone
(479) 527-8787 fax
Arkansas Bar #78145



On behalf of Defendant Crafton, Tull & Associates:



____________________________
DAVID R. MATTHEWS, ESQ.
119 South Second Street
Rogers, Arkansas 72756.
(479) 636-0875 phone
(479) 636-8150 fax
Arkansas Bar # 76072







Pro se on behalf of Defendant Bond Consulting Engineers, Inc.



____________________________
JACK BOND
Vice President
Bond Consulting Engineers, Inc.
P.O. Box 726
208 N. Sixth Street
West Memphis, AR 72303
(870)735-5150 phone
(870)735-3442 fax

1. One or more of the design plans used at one or more of these complexes surveyed by the United States were also used at the Subject Properties that were not surveyed by the United States, including plans for the construction of corporate apartment units.

2. For purposes of surveys, The Links at Bixby, The Greens at Shawnee, and The Greens at Springfield are excluded from this provision as surveys have already been completed.

3. Retrofit proposals for The Links at Bixby, The Greens at Shawnee, and The Greens at Springfield are attached hereto as Appendices A, B, and C, respectively, and are deemed approved from the date of the entry of the Consent Decree.

4. ANSI refers to the American National Standards Institute (ANSI) for Buildings and Facilities -- Providing Accessibility and Usability for Physically Handicapped People, ("ANSI A117.1"), 1986 edition.

5. Properties that are part of a multi-phase complex (e.g., Eagle Hill II and Eagle Hill IV) shall be required to have one accessible model unit to serve the entire complex.


Document Entered: November 24, 2004

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Updated August 6, 2015