UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
GLENDA STONE and DONALD MELLO
CHARLES (a/k/a "Jerry") HARLAN,
MARLENE HARLAN & GOLDEN GATE
MOBILE HOME PARK,
On November 17, 1997, the United States filed this action on behalf of complainants Glenda Stone, Donald Mello, and Frank Garcia, alleging that Charles (a/k/a "Jerry") and Marlene Harlan had engaged in unlawful housing discrimination on the basis of national origin at the Golden Gate Mobile Home Park in Caldwell, Idaho. On December 30, 1997, the United States amended its complaint to add David and Lisa Fernandez as complainants. Subsequently, Glenda Stone and Donald Mello intervened as plaintiffs and filed a joint complaint in this matter, alleging the fair housing claims as well as various state law claims. Defendants have filed a motion to dismiss the state law claims. That motion is still pending. The parties have proposed that this Consent Order resolve this case.
In its complaint, brought pursuant to Section 812(o) of the Fair Housing Act ("the Act"), as amended, 42 U.S.C. § 3612(o), and Section 814(a) of the Act, 42 U.S.C. § 3614(a), the United States alleged that Defendants Charles and Marlene Harlan, as owners and operators of the Golden Gate Mobile Home Park ("the Park"), discriminated against the individual complainants and engaged in a pattern or practice of discrimination on the basis of national origin in violation of the Fair Housing Act, as amended, 42 U.S.C. § 3601 et seq. Specifically, plaintiffs claimed that the Harlans refused to rent space in the Golden Gate Mobile Home Park to Hispanic persons, thereby preventing Donald Mello from selling his mobile home to his daughter Lisa Fernandez and her husband David Fernandez, to Frank Garcia and to other interested Hispanic persons. Plaintiffs also claimed that Jerry Harlan informed Glenda Stone, a Hispanic real estate agent interested in listing Mello's home, that she could not sell to any "Goddamn Mexicans." Plaintiffs further contended that Jerry Harlan made derogatory discriminatory statements about Mexicans on numerous occasions to Donald Mello and Travis Glen, another resident of the Park. Finally, plaintiffs alleged that Jerry Harlan made discriminatory statements about Mexicans to a HUD official investigating the discrimination allegations against the Harlans. In their separate complaint, plaintiff-intervenors Glenda Stone and Donald Mello alleged the same fair housing claims and added tort, contract and statutory claims based on Idaho state law.
Defendants deny all of these allegations. However, all parties desire to avoid the cost and uncertainties of protracted litigation and agree that this dispute should be resolved without the necessity of an evidentiary hearing. Therefore, the parties have waived an evidentiary hearing and the entry of findings of fact and conclusions of law and have agreed to the entry of this Consent Order settling all claims, as indicated by the signatures appearing below.
As specifically set forth below, the Order includes a sum total of $92,500 in monetary relief: $75,000 collectively for Donald Mello, Glenda Stone, David and Lisa Fernandez and Frank Garcia; a $10,000 civil penalty; and $7,500 in fees and costs to the attorney for the plaintiff-intervenors. The Consent Order also includes injunctive provisions.
Defendants and Plaintiffs anticipate that compliance with the provisions of this Order will ensure that the defendants will not engage in any future violations of the Fair Housing Act. Unless this Order indicates otherwise, the provisions of this Order shall apply to all current or future residential properties in which defendants Charles and Marlene Harlan (hereinafter "defendants") have a controlling ownership and/or management interest during the term of this Order. Within thirty (30) days of entry of this Order, defendants shall provide to the United States a list of those residential properties of which they have a controlling ownership and/or management interest.
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED:
Prohibitory Injunctive Relief
- Defendants, their officers, directors, agents, employees, successors, and all persons and entities in active concert or participation with any of them are enjoined, with respect to the rental or sale of dwellings (1) at residential property in which they have a controlling and/or management interest, from:
- refusing to rent or sell a dwelling, refusing or failing to provide or offer information about a dwelling, or otherwise making unavailable or denying a dwelling to any person because of national origin;
- discriminating against any person in the terms, conditions or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of national origin, including but not limited to conducting background checks on tenants in a discriminatory manner;
- making, printing, publishing, or causing to be made, printed, or published any notice, statement or advertisement with respect to the sale or rental of a dwelling that states any preference, limitation or discrimination based on national origin;
- misrepresenting to any person because of national origin that any dwelling is not available for inspection, rental, or sale when such dwelling is, in fact, so available; and
- engaging in any other discriminatory housing practice prohibited by 42 U.S.C. §§ 3601 et seq.
Mandatory Education and Training
- Within thirty (30) days after the date of entry of this Order, defendants and all of their employees, officers, directors and agents who have or may have contact with the public at any residential rental property subject to this Order, and any other persons who do or may have responsibility for approving or rejecting applications for residence at the residential rental properties subject to this Order -- whether employees, agents, representatives, or other dwelling owners -- shall be given a copy of, and required to read, this Consent Order, and shall complete a program of educational training concerning their responsibilities under federal, state, and local fair housing laws, regulations, or ordinances and the provisions of this Consent Order. Defendants shall bear all reasonable costs of this program. The training shall be conducted by a fair housing organization pre-approved for this purpose by the United States. All persons attending such a program shall have their attendance certified in writing by the person conducting the educational program.
The parties agree that defendants Jerry and Marlene Harlan have satisfied the requirements of this paragraph by attending a fair housing training conducted by the Idaho Fair Housing Council on November 14, 1997. The requirements of this paragraph shall continue to apply to any and all other covered persons.
- For the duration of this Order any new employee, agent or representative of defendants who may have contact with the public at the residential rental properties subject to this Order, and any other new individuals with responsibility for approving or rejecting applications for residence at said properties, shall be given a copy of and required to read this Consent Order and shall attend the fair housing training program identified above in Paragraph Two (2) within thirty (30) days, or as soon as practicable, after first assuming such a position. Defendants shall bear all reasonable costs of this program.
Notification to Public of Nondiscriminatory Policies
- Within ten (10) days after the date of entry of this Consent Order, defendants shall take the following steps to notify the public of their non-discriminatory policies:
- Pursuant to 24 C.F.R. Part 110, post and prominently display a Fair Housing Poster in the main office (if one exists) at each residential rental property subject to this Order, and in any other office operated or staffed by members, agents, or representatives of defendants or at any other office where there is rental activity and/or personal contact with applicants or potential applicants for dwellings therein.
- Include the words "Equal Housing Opportunity" or the fair housing logo, see 24 C.F.R. Part 110.25, in all advertising conducted by defendants pertaining to the properties covered by this Order, in newspapers, magazines, trade directories, telephone directories, radio, television or other media; on all billboards, signs, pamphlets, brochures and other promotional literature; and on all form materials, such as applications, leases, and rules and regulations, available to the public. The words or logo shall be prominently placed and easily legible. Any such advertising or promotional efforts by defendants and any such forms produced by defendants subsequent to the date of entry of this Consent Order, and relating to any of the residential properties subject to this Order, shall include the fair housing logo or the words "equal housing opportunity."
- Include the following phrase in all leases, rules, regulations and policies used at the residential rental properties subject to this Order:
We are an equal housing opportunity provider. We do not discriminate on the basis of race, color, sex, national origin, religion, handicap or familial status.
The type used in printing this phrase shall be at least as large as the largest type used to print other terms of the lease or other rules or regulations.
Record-keeping and Reporting
- With respect to the approval and denial of applicants seeking residency in dwellings at any of the residential properties subject to this Order, defendants shall:
- Maintain an Applicant Inquiry Log of all persons who seek residency at any of said properties by submitting an application, stating (i) the date of submission of the application; (ii) the person's name, current address, and telephone number; (iii) the address and name of the rental property in which the person is seeking to reside; and (iv) a summary of any and all information acquired through a background check of the applicant's income and current or previous housing references. If a person or household moves into the requested property, or any other residential rental property subject to this Order, the address, including apartment or space number, and date of occupancy shall be noted on the Log. Defendants or their representatives shall make a good faith effort to obtain the information referred to in this Paragraph with respect to each prospective applicant.
- Maintain an Applicant Decision Log setting forth in writing the reason(s) why each application for residence was accepted or denied.
- Six (6) months after the entry of this Order, and thereafter every six (6) months for the duration of this Order, defendants shall deliver to counsel for the United States a report containing the following information:
- The identification, including the name and address of any residential property in which defendants commenced any ownership or management interest during the reporting period. Defendants shall also report any change in ownership or management of any rental property subject to this Order at the time of entry;
- Representative copies of any newspaper advertisements published during the six (6) month reporting period;
- Copies of the Applicant Inquiry and Applicant Decision Logs, established under paragraph 5 above, for the six (6) month reporting period.
- A report detailing the occupancy of each unit at residential rental properties subject to this Order, which includes the names of each occupant, the dates of occupancy, each occupant's national origin, if known, and any changes in occupancy during the six (6) month reporting period.
- Defendants shall, for the duration of this Order, preserve all records which are the source of, or contain, any of the information pertinent to defendants' obligations under this Order. Upon reasonable notice to counsel for defendants, or in the absence of counsel, defendants themselves, and at reasonable times, representatives of the United States shall be permitted to inspect and copy all pertinent records of defendants regarding any of the residential rental properties subject to this Order; they shall endeavor to minimize any inconvenience to defendants from the inspection of such records.
- Defendants, during the term of this Order, shall provide written notice to counsel for the United States, within thirty (30) days of receipt of any complaint(2) against defendants their employees, agents, representatives or designees, regarding equal opportunity at any of the residential properties subject to this Order. If the complaint is written, defendants shall provide a copy of it with the notice; if the complaint is oral, it shall include a written summary of such complaint with the notice. The notice shall include the full details of the complaint, including the complainant's name, address, and telephone number. Defendants shall also promptly provide the United States all information it may request concerning any such complaint and any actual or attempted resolution.
- Within twenty (20) days of the date of the entry of this Order, defendants shall pay to the plaintiff-intervenor Donald Mello the sum of twenty thousand dollars ($20,000) and to the plaintiff-intervenor Glenda Stone the sum of twenty-five thousand dollars ($25,000.00) in settlement of their housing discrimination claims against the defendants. Such payments shall take the form of a check for twenty-five thousand dollars ($25,000) made out to Glenda Stone and Howard Belodoff, and a check for twenty thousand dollars ($20,000) made out to Donald Mello and Howard Belodoff. The checks shall be mailed to Howard Belodoff, Esq., 2402 W. Jefferson Street, Boise, Idaho 83702.
Within twenty (20) days of the date of the entry of this Order, defendants shall pay to complainant Frank Garcia the sum of five thousand dollars ($5,000) and to complainants David and Lisa Fernandez the sum of twenty-five thousand dollars ($25,000.00) in settlement of their housing discrimination claims against the defendants. Such payments shall take the form of separate checks made out to Frank Garcia and to David and Lisa Fernandez. The checks shall be mailed to Paul Tiao, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, P.O. Box 65998, Washington, D.C., 20035-5998.
In consideration for the receipt of these sums, Glenda Stone, Donald Mello, Frank Garcia and David and Lisa Fernandez shall release defendants from any and all claims or causes of action arising out of the facts underlying the complaints filed in this matter. They shall sign a separate release in a form agreed to by the United States and plaintiffs counsel.
In addition, as part of this Order, defendants Jerry and Marlene Harlan release Glenda Stone, Donald Mello, Frank Garcia and David and Lisa Fernandez from any and all claims, counterclaims or causes of action arising out of the facts underlying the complaints filed in this matter.
- Defendants shall pay a civil penalty of ten thousand dollars ($10,000.00) to the United States to vindicate the public interest, pursuant to 42 U.S.C. § 3614(d)(1)(C). Defendants shall make a payment to the United States of no less than five hundred dollars ($500.00) within thirty (30) days of the entry of this Order. Every thirty (30) days thereafter, the defendants shall make payments to the United States of no less than five hundred ($500.00) per month until the defendants have paid a sum total of $10,000 to the United States. Under no circumstances shall the defendants pay less than five hundred dollars ($500.00) per month towards this civil penalty. Further, under no circumstances shall the payment period for the ten thousand dollar ($10,000) total exceed twenty (20) months from the date of entry of this Order. Each of these payments shall take the form of a cashier's check or money order made out to the United States and mailed to Chief, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, P.O. Box 65998, Washington, D.C., 20035-5998.
- Defendants shall, within twenty (20) days from the date of this Order, pay seven thousand five hundred dollars ($7,500) to Howard Belodoff, counsel for the plaintiff-intervenors, for attorneys' fees and costs incurred in this case.
Duration of Consent Order
- This Court shall retain jurisdiction over the enforcement of this Order for at least four (4) years from the date of March 18, 1997.(3) At any time after four (4) years from that date, defendants may move for dismissal of this case with prejudice. Dismissal shall be granted unless, no later than thirty (30) days after receipt of defendants' motion, the United States serves a written objection. If such an objection is filed, the Court shall hold a hearing on the dismissal motion, and the burden shall be on the objecting party to demonstrate why this Order should not be terminated. If the objecting party fails to meet its burden, or if no objection is timely filed (except for good cause shown), this Order shall terminate forthwith and this case shall be dismissed with prejudice.
In addition, the training requirements at Paragraphs 2 and 3, and the reporting requirements at Paragraph 5 and 6 may be terminated by notice from defendants to the United States, prior to the expiration of the applicable period, showing: (1) that defendants do not retain any controlling interest in the management and/or ownership of any residential rental property, (2) that none of the successors in interest and/or successors in management participated in any of the alleged violations of the Fair Housing Act which gave rise to this litigation, and (3) that the transfer in interest and/or transfer of management duties from defendants was a bona-fide arms-length transaction and was not for the purpose of evading or circumventing any provision of this Order.
Remedies for Non-Performance
- The parties to this Consent Order shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Order prior to bringing such matters to the Court for resolution. However, in the event of a failure by defendants whether willful or otherwise, to perform in a timely manner any act required by this Consent Order or otherwise to comply with any provision thereof, the United States shall, subject to the provision set forth in paragraph 14, give defendants a thirty (30) day written notice of default. If the default is not cured within that time, 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 attorneys' fees which may have been occasioned by defendants' violation or failure to perform. The Court shall retain jurisdiction to enforce the terms of this Order.
Time for Performance
- Any time limits for performance imposed by this Consent Order may be extended by written mutual agreement of the parties.
ORDERED this __________ day of _______________________, l999.
Honorable B. Lynn Winmill
United States District Judge
The undersigned hereby apply for and consent to entry of this Order:
For the United States:
JOSEPH D. RICH
PAUL M. TIAO
Housing & Civil Enforcement Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
BETTY H. RICHARDSON
United States Attorney
Assistant U.S. Attorney
First Interstate Center
877 W. Main St., Ste 201
Boise, Idaho 83702
For Plaintiff-Intervenors Glenda Stone and Donald Mello:
HOWARD BELODOFF, ESQ.
2402 W. Jefferson St.
Boise, Idaho 83702
For Defendnats Charles and Marlene Harlan
BRASSEY, WETHEREL, CRAWFORD & MCCURDY
ANDREW BRASSEY, ESQ
Washington Federal Plaza
1001 W. Idaho, 3rd Floor
PO Box 1009
Boise, Idaho 83701
1. For the purposes of this Order, "dwelling" shall have the same meaning as it does in the Fair Housing Act, 42 U.S.C. § 3602(b).
2. "Complaint" includes any written or oral complaint, formal or informal, to any administrative or official body or to any defendant or any agent or employee of any defendant.
3. On March 19, 1997, defendants entered into a Conciliation Agreement with the United States Department of Housing and Urban Development and the Idaho Fair Housing Council. This Agreement included many injunctive provisions similar to those included in this Order. > >