UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

MEMPHIS CENTER FOR
INDEPENDENT LIVING,

                                  Plaintiff,

                 v.

MAKOWSKY CONSTRUCTION COMPANY, et al.,

                                  Defendants, and                                           No.: 01-2069 D/Bre

UNITED STATES OF AMERICA,

                                  Plaintiff-Intervenor,

                 v.

MAKOWSKY CONSTRUCTION COMPANY,
INC., ARCHEON, INC., REAVES SWEENEY
MARCOM, INC., PENN INVESTORS, INC.,
JAN REALTY, INC., BELZ/SOUTH BLUFFS,
INC., JACK BELZ D/B/A BELZ ENTERPRISES,
RONALD A. BELZ D/B/A BELZ ENTERPRISES,
JEROME HANOVER D/B/A BELZ ENTERPRISES,
MRB-WINDYKE, L.P., MRB-STONEBRIDGE,
L.P., MAKOWSKY RINGEL GREENBERG, LLC,
J. RICHARD GRANT, MILTON GRANT,
RICHARD AND MILTON GRANT COMPANY,
JOHN R. GILLENTINE, HENRY HART,
HENRY HART ENGINEERING, P.C. and
PARKER, ESTES & ASSOCIATES, INC.,

                                  Defendants.

________________________________________

FIRST AMENDED COMPLAINT IN INTERVENTION

The United States of America alleges:

1. This action is brought by the United States to enforce the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 (Fair Housing Act), 42 U.S.C. §§3601-3619, and Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§12181-12189.

Jurisdiction and Venue

2. The Court has jurisdiction over this action under 28 U.S.C. §§1331 and 1345, and 42 U.S.C. §§3614(a) and 12188(b)(1)(B). The Court may grant declaratory and other relief pursuant to 28 U.S.C. §§2201 and 2202.

3. Venue is proper because the claims alleged in this action arose in the Western District of Tennessee.

The Properties

4. Champion Hills at Windyke is located at 3788 Links Drive South, Memphis, Tennessee 38125. Champion Hills at Stonebridge is located at 2918 Champions Drive, Arlington, Tennessee 38002. Eton Square Apartments are located at 3315 Ridgeway Road, Memphis, Tennessee 38115.

5. The Wyndham Apartments are located at 3200 Germantown Road, Memphis, Tennessee 38119. Camden Grove Apartments are located at 1571 Houston Levee, Cordova, Tennessee.

The Defendants

6. Defendant Makowsky Construction Company, Inc. is a Tennessee corporation with its principal place of business at 1010 June Road, Suite 101, Memphis, Tennessee 38119. Defendant Makowsky Construction Company, Inc. was the general contractor for Champion Hills at Windyke, Champion Hills at Stonebridge and Eton Square Apartments and in that capacity was responsible for the design and/or construction of these apartment complexes.

7. Defendant Archeon, Inc. is a Tennessee corporation with its principal place of business at 3071 Directors Row, Memphis, Tennessee 38131. Defendant Archeon, Inc. was the architectural firm for Champion Hills at Windyke, Champion Hills at Stonebridge and Eton Square Apartments and in that capacity was responsible for the design and/or construction of these apartment complexes.

8. Defendant Reaves Sweeney Marcom, Inc. is a Tennessee corporation with its principal place of business at 5118 Park Avenue, Suite 400, Memphis, Tennessee, 38117. Defendant Reaves Sweeney Marcom, Inc. is the engineering firm for Champion Hills at Windyke and Champion Hills at Stonebridge and in that capacity was responsible for the design and/or construction of these apartment complexes.

9. Makowsky & Ringel, Inc., during periods of time relevant to this case, was a Tennessee corporation with its principal place of business at 1010 June Road, Memphis, Tennessee 38119. It was engaged in the business of developing residential real estate. Makowsky & Ringel, Inc. was the owner of Eton Square Apartments during the period of its design and/or construction. In addition, Makowsky & Ringel, Inc. engaged in joint ventures with Belz Enterprises for the development of Champion Hills at Windyke and Champion Hills at Stonebridge. In these capacities, Makowsky & Ringel, Inc. engaged in and/or was responsible for the design and/or construction of Eton Square Apartments, Champion Hills at Windyke and Champion Hills at Stonebridge.

10. Defendant Penn Investors, Inc. is a Tennessee corporation with its principal place of business at 1010 June Road, Suite 101, Memphis, Tennessee 38119. Defendant Penn Investors, Inc., through its merger with Makowsky & Ringle, Inc., a now inactive Tennessee corporation, is the successor in interest to Makowsky & Ringle, Inc. and is responsible for debts, liabilities and duties incurred by Makowsky & Ringle, Inc. including the design and/or construction of Eton Square Apartments, Champion Hills at Windyke and Champion Hills at Stonebridge.

11. Defendant JAN Realty, Inc. is a Tennessee corporation with its principal place of business at 1010 June Road, Suite 201, Memphis, Tennessee 38119. Defendant JAN Realty, Inc. engages in the business of residential real estate development. Defendant JAN Realty, Inc. is a general partner in MRB-Windyke, LP and in MRB-Stonebridge, LP, which are Tennessee limited partnerships. In these capacities, Defendant JAN Realty, Inc. engaged in and/or was responsible for the design and/or construction of Champion Hills at Windyke and Champion Hills at Stonebridge.

12. Defendant Belz/South Bluffs, Inc. is a Tennessee corporation with its principal place of business at 100 Peabody Place, Suite 1300, Memphis, Tennessee 38103. Defendant Belz/South Bluffs, Inc. engages in the business of residential real estate development. Defendant Belz/South Bluffs, Inc. is a general partner in MRB-Windyke, LP and in MRB-Stonebridge, LP, which are Tennessee limited partnerships. In these capacities, Defendant Belz/South Bluffs, Inc. engaged in and/or was responsible for the design and/or construction of Champion Hills at Windyke and Champion Hills at Stonebridge.

13. Defendant Jack A. Belz is an individual who, while doing business as Belz Enterprises, has engaged in the business of developing residential real estate. During periods of time relevant to this case, he was the Chairman of the Board and the Chief Executive Officer of Belz Enterprises. He was also Chief Executive Officer and member of the Board of Directors of Belz/South Bluffs, Inc. In these capacities, Defendant Jack A. Belz engaged in and/or was responsible for the design and/or construction of Champion Hills at Windyke and Champion Hills at Stonebridge.

14. Defendant Ronald A. Belz is an individual who, while doing business as Belz Enterprises, has engaged in the business of developing residential real estate. During periods of time relevant to this case, he was the Co-President of Belz Enterprises. In this capacity, Defendant Ronald A. Belz engaged in and/or was responsible for the design and/or construction of Champion Hills at Windyke and Champion Hills at Stonebridge.

15. Defendant Jerome H. Hanover is an individual who, while doing business as Belz Enterprises, has engaged in the business of developing residential real estate. During periods of time relevant to this case, he was the Senior Vice-President of Belz Enterprises. In this capacity, Defendant Jerome H. Hanover engaged in and/or was responsible for the design and/or construction of Champion Hills at Windyke and Champion Hills at Stonebridge.

16. Defendant MRB-Windyke, L.P. is a limited partnership under the laws of the state of Tennessee with its principal place of business at 1010 June Road, Suite 201, Memphis, Tennessee 38119. Defendant MRB-Windyke, L.P. is the owner and was the developer of Champion Hills at Windyke. In those capacities, Defendant MRB-Windyke, L.P. was responsible for the design and/or construction of Champion Hills at Windyke.

17. Defendant MRB-Stonebridge, L.P. is a limited partnership under the laws of the state of Tennessee with its principal place of business at 1010 June Road, Suite 201, Memphis, Tennessee 38119. Defendant MRB-Stonebridge, L.P. is the owner and was the developer of Champion Hills at Stonebridge. In those capacities, Defendant MRB-Stonebridge, L.P. was responsible for the design and/or construction of Champion Hills at Stonebridge.

18. Defendant Makowsky Ringel Greenberg, LLC is a Tennessee limited liability company with its principal place of business at 1010 June Road, Suite 101, Memphis, Tennessee 381119. Defendant Makowsky Ringel Greenberg, LLC is engaged in the business of apartment management and is responsible for the management and rental of dwellings at Champion Hills at Windyke and Champion Hills at Stonebridge. Makowsky Ringel Greenberg, LLC is a necessary party to this lawsuit in whose absence complete relief can not be afforded to the United States.

19. Defendants J. Richard Grant and Milton Grant are individuals with their principal place of business at 1655 International Drive, Memphis, Tennessee 38120. Defendants J. Richard Grant and Milton Grant were the owners and the developers of the Wyndham Apartments and Camden Grove Apartments. In these capacities, they were responsible for the design and/or construction of these apartment complexes.

20. Defendant Richard and Milton Grant Company has it principal place of business at 1655 International Drive, Memphis, Tennessee 38120. Defendant Richard and Milton Grant Company was the general contractor for the Wyndham Apartments and Camden Grove Apartments. In such capacity, Defendant Richard and Milton Grant Company was responsible for the design and/or construction of these apartment complexes.

21. Defendant John R. Gillentine of 11965 Brockwell, Arlington, Tennessee 38002 was the architect for the Wyndham Apartments and Camden Grove Apartments. In such capacity, he was responsible for the design and/or construction of the Wyndham Apartments and Camden Grove Apartments.

22. Defendant Henry Hart of 7960 Wolf River Boulevard, Suite 104, Germantown, Tennessee 38138 and Defendant Henry Hart Engineering Company, PC, a Tennessee professional corporation with its principal place of business at 2716 Juneway, Bartlett, Tennessee, 38134 were the engineers for the Wyndham Apartments. In this capacity, they were responsible for the design and/or construction of the Wyndham Apartments.

23. Defendant Parker, Estes & Associates, Inc., a Tennessee corporation, also doing business as Parker, Estes & Associates, with its principal place of business at 3460 Ridge Meadow Parkway, Memphis, Tennessee 38115-4000 was the engineer for Camden Grove Apartments. In this capacity, it was responsible for the design and/or construction of the Camden Grove Apartments.

Count I

24. The allegations of Paragraphs 1 through 23 are hereby incorporated by reference.

25. The apartment complexes described in paragraphs 4 and 5 were designed and constructed for first occupancy after March 13, 1991.

26. The apartment complexes described in paragraphs 4 and 5 are "dwellings" within the meaning of 42 U.S.C. §3602(b). They contain ground-floor units that are "covered multifamily dwellings" within the meaning of 42 U.S.C. §3604(f)(7)(A). These ground-floor units are subject to the accessibility requirements of 42 U.S.C. §3604(f)(3)(C).

27. Defendants Makowsky Construction Company, Inc., Archeon, Inc., Reaves Sweeney Marcom, Inc., Penn Investors, Inc. JAN Realty, Inc., Belz/South Bluffs, Inc., Jack A. Belz d/b/a Belz Enterprises, Ronald A. Belz d/b/a Belz Enterprises, Jerome H. Hanover d/b/a Belz Enterprises, MRB-Windyke, L.P. and MRB-Stonebridge, L.P., have violated 42 U.S.C. §3604(f)(3)(C) by, including but not limited to, failing to design and/or construct one or more covered multi-family dwellings, including those described in paragraph 4, so that:

1. the public use and common use portions of such dwellings are readily accessible to and usable by individuals with disabilities;

2. all the doors designed to allow passage into and within all premises within the dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and

3. all premises within such dwellings contain the following features of adaptive design:
   1. an accessible route into and through the dwellings;

   2. thermostat and environmental controls in accessible locations;

   3. reinforcements in bathroom walls to allow the later installation of grab bars; and

   4. usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.

28. Defendants J. Richard Grant, Milton Grant, Richard and Milton Grant Company, John R. Gillentine, Henry Hart, Henry Hart Engineering Company, PC, and Parker, Estes & Associates, Inc., have violated 42 U.S.C. §3604(f)(3)(C) by, including but not limited to, failing to design and/or construct one or more covered multi-family dwellings, including those described in paragraph 5, so that:

1. the public use and common use portions of such dwellings are readily accessible to and usable by individuals with disabilities;

2. all the doors designed to allow passage into and within all premises within the dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and

3. all premises within such dwellings contain the following features of adaptive design:
   1. an accessible route into and through the dwellings;

   2. thermostat and environmental controls in accessible locations;

   3. reinforcements in bathroom walls to allow the later installation of grab bars; and

   4. usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.

29. Defendants' conduct constitutes:

1. a pattern or practice of resistance to the full enjoyment of rights granted by the Fair Housing Act, 42 U.S.C. §§3601-3619; and

2. a denial to a group of persons of rights granted by the Fair Housing Act, 42 U.S.C. §§3601-3619, which raises an issue of general public importance.

30. Persons who may have been the victims of defendants' discriminatory housing practices are aggrieved persons as defined in 42 U.S.C. §3602(i) and may have suffered injuries as a result of defendants' conduct described in this count.

31. Defendants' conduct described in this count was intentional, willful, and taken in disregard of the rights of others.

32. The allegations of paragraphs 1 through 31 are hereby incorporated by reference.

33. The clubhouse rental offices of the apartment complexes described in paragraphs 4 and 5 are public accommodations within the meaning of Section 301(7)(E) of the Americans with Disabilities Act, 42 U.S.C. §12181(7)(E).

34. The clubhouse rental offices and other public accommodations of the apartment complexes described in paragraphs 4 and 5 were designed and constructed for first occupancy after January 26, 1993.

35. Defendants Makowsky Construction Company, Inc., Archeon, Inc., Reaves Sweeney Marcom, Inc., Penn Investors, Inc. JAN Realty, Inc., Belz/South Bluffs, Inc., Jack A. Belz d/b/a Belz Enterprises, Ronald A. Belz d/b/a Belz Enterprises, Jerome H. Hanover d/b/a Belz Enterprises, MRB-Windyke, L.P. and MRB-Stonebridge, L.P. have violated 42 U.S.C. §12183(a)(1) by failing to design and construct the clubhouse rental offices and other public accommodations of apartment complexes, including those described in paragraph 4, such that they are readily accessible to and usable by individuals with disabilities, as required by Section 303(a)(1) of the ADA, 42 U.S.C. §12183(a)(1). These areas fail in numerous respects to comply with the Department of Justice's regulation implementing Title III of the ADA, 28 C.F.R. Part 36, including the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the ADA Standards"). These inaccessible features include, but are not limited to, the following:

1. at Champion Hills at Stonebridge, the maneuvering spaces on the pull side of both the exterior door to the community room and the exterior door from the back patio to the main clubhouse is insufficient, [ADA Standards 4.13.6];

2. at Champion Hills at Stonebridge, the main entrance door to the clubhouse, the exterior doors from the clubhouse lobby to the back patio, the door to the main rent drop box and the entrance and egress doors at the community room main all have thresholds which are too high, [ADA Standards 4.13.8];

3. at Champion Hills at Stonebridge, the designated accessible toilet stall in the women's restroom has a rear wall grab bar that is too short and a toilet that is not centered, [ADA Standards 4.17.6, 4.16.2]; and in addition, the lavatory has round faucet controls and does not provide the required knee space underneath, [ADA Standards 4.19.2, 4.19.5];

4. at Champion Hills at Windyke, the exterior doors that lead from the main clubhouse lobby to the pool area do not allow for a minimum 32 inch clear passage width, [ADA Standards 4.13.5];

5. at Champion Hills at Windyke, the men's restroom urinal and urinal flush control is mounted too high from the floor, [ADA Standards 4.18.2, 4.18.4]; and

6. at Champion Hills at Windyke, the lavatory in the men's restroom is mounted too high, the drain and hot water supply lines are not protected and the lavatory has inaccessible round faucet controls. [ADA Standards 4.19.2, 4.19.4 and 4.19.5].

36. Defendants J. Richard Grant, Milton Grant, Richard and Milton Grant Company, John R. Gillentine, Henry Hart, Henry Hart Engineering Company, PC, and Parker, Estes & Associates, Inc., have violated 42 U.S.C. §12183(a)(1) by failing to design and construct the clubhouse rental offices and other public accommodations of the apartment complexes described in paragraph 5 such that they are readily accessible to and usable by individuals with disabilities, as required by Section 303(a)(1) of the ADA, 42 U.S.C. §12183(a)(1). These areas fail in numerous respects to comply with the Department of Justice's regulation implementing Title III of the ADA, 28 C.F.R. Part 36, including the ADA Standards. These inaccessible features include, but are not limited to, the following:

1. at the Wyndham Apartments, the pedestrian approach walkway to the clubhouse from the south end of the site has a 6 inch curb without a curb ramp, [ADA Standards 4.5.2];

2. at the Wyndham Apartments, the lavatory in the unisex restroom that serves the leasing office has insufficient clear floor space in front of the lavatory to accommodate a wheelchair user, no insulation on the drain and hot water supply pipeline under the lavatory and inaccessible round knob faucets, [ADA Standards 4.19.3, 4.19.4 and 4.19.5];

3. at the Wyndham Apartments, the toilet in the unisex restroom that serves the leasing office is not centered (i.e. it is located too close to the adjacent side wall), does not allow for a minimum 36 inch wide clear floor space in front of the toilet and has no grab bar behind the toilet as required, [ADA Standards 4.16.2 and 4.16.4];

37. The defendants' conduct described in paragraphs 33-36 constitutes:

1. a pattern or practice of discrimination within the meaning of 42 U.S.C. §12188(b)(1)(B)(i) and 28 C.F.R. §36.503(a); and

2. unlawful discrimination that raises an issue of general public importance within the meaning of 42 U.S.C. § 12188(b)(1)(B)(ii) and 28 C.F.R. § 36.503(b).

38. Victims of defendants' discriminatory conduct described in this count may have suffered injuries as a result of defendants' conduct.

WHEREFORE, the United States prays that the Court enter an order that:

1. Declares that defendants have engaged in a pattern or practice of violations of the Fair Housing Act and Title III of the Americans With Disabilities Act;

2. Enjoins defendants, their officers, employees, agents, successors and all other persons in active concert or participation with any of them from:

1. at apartment complexes identified in paragraphs 4 and 5, failing or refusing to bring:(i) the covered multi-family dwelling units and public use and common use areas into full compliance with 42 U.S.C. §3604(f)(3)(C); and (ii) the public accommodations areas into full compliance with 42 U.S.C. §12183(a)(1), 28 C.F.R. §§36.401 and 36.406, and 28 C.F.R. Part 36, Appendix A;

2. at all other covered multifamily dwellings designed and/or constructed by any of the defendants and built for first occupancy after March 13, 1991, failing or refusing to: (i) conduct a compliance survey to identify violations of 42 U.S.C. §3604(f)(3)(C), and (ii) with respect to any violations found, retrofit the covered multi-family dwelling units, public use and common use areas and the public accommodations areas to bring them into compliance with the requirements of 42 U.S.C. §3604(f)(3)(C);

3. with respect to the areas of all other covered multifamily dwellings which are public accommodations designed and/or constructed by any of the defendants for first occupancy after January 26, 1993, failing or refusing to: (i) conduct a compliance survey of these public accommodations to identify violations of 42 U.S.C. §12183(a)(1), 28 C.F.R. §§36.401 and 36.406, and 28 C.F.R. Part 36, Appendix A, and (ii) with respect to any violations found, retrofit the covered multi-family dwelling units, public use and common use areas and the public accommodations areas to bring them into compliance with the requirements of the Americans with Disabilities Act and the ADA Standards;

4. designing or constructing, in the future: (i) any covered multi-family dwellings that does not have the features set forth in 42 U.S.C. §3604(f)(3)(C); and (ii) any public accommodations or commercial facilities that are not readily accessible to and usable by individuals as required by 42 U.S.C. §12183(a)(1), 28 C.F.R. §§36.401 and 36.406, and 28 C.F.R. Part 36, Appendix A; and

5. failing or refusing to take such affirmative steps as may be necessary to restore, as nearly as practicable, the victims of defendants' unlawful practices to the position they would have been in but for the discriminatory conduct.

3. Awards such damages as would fully compensate each person aggrieved by defendants' discriminatory practices for their injuries resulting from defendants' discriminatory conduct, pursuant to 42 U.S.C. §3614(d)(1)(B) and 42 U.S.C. §12188(b)(2)(B);

4. Awards punitive damages to each person aggrieved by defendants' discriminatory housing practices because of the intentional and willful nature of defendants' conduct, pursuant to 42 U.S.C. §3614(d)(1)(B); and

5. Assesses a civil penalty against each defendant in the maximum amount authorized by 42 U.S.C. §3614(d)(1)(C) and 42 U.S.C. §12188(b)(2)(C), in order to vindicate the public interest.

The United States further prays for such additional relief as the interests of justice may require.