Housing And Civil Enforcement Cases Documents

THOMAS E. MOSS
United States Attorney
D. MARC HAWS
Assistant United States Attorney
First Interstate Center
877 W. Main St., Ste 201,
Boise, Idaho 83702
Tel.: 208-334-1211

RALPH F. BOYD, JR.
Assistant Attorney General
JOAN A. MAGAGNA
TIMOTHY J. MORAN
NANCY F. LANGWORTHY
Attorneys
United States Department of Justice
Civil Rights Division
P.O. Box 65998
Washington, D.C. 20035-5998
Tel.: 202-616-8925

UNITED STATES OF AMERICA,                                                          No. CV 00-724-S-BLW

                 Plaintiff,

                 v.

CHERRYWOOD ASSOCIATES, LP,
GERALD C. BAUMAN, THOMAS E.                                                    CONSENT ORDER
DILLON, TOMLINSON & ASSOCIATES,
INC., and JULIE WINN,

                 Defendants.

The United States files this Consent Decree to resolve its Complaint against Cherrywood Associaties, LP, Gerald C. Bauman and Thomas E. Dillon, Tomlinson & Associates, Inc., and Julie Winn, alleging violations of the Fair Housing Act (Title VIII of the Civil Rights Act of 1968) as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619 ("the Act").

The Complaint, filed pursuant to section 812(o) of the Act, 42 U.S.C. § 3612(o), alleges that property owner, Cherrywood Associates, LP, its general partners, Gerald C. Bauman and Thomas E. Dillon, property management firm, Tomlinson & Associates, Inc., and on-site property manager, Julie Winn, discriminated against Spencer and Toni Jones, their minor children, D.J., C.J. and B.J., and the Idaho Fair Housing Council (the IFHC) because of familial status ⁽¹⁾ in the operation of the Saturn Village Apartments, 740 Saturn Drive, Idaho Falls, Idaho.

section 3604(b) of the Act, 42 U.S.C. § 3604(b), and that Defendants prevented the Joneses and other home seekers from applying for rental dwellings because of familial status by making, or causing to be made, statements describing these policies, in violation of section 3604((c) of the Act, 42 U.S.C. § 3604(c).

Defendants deny Plaintiff's claims and expressly deny that they have engaged in discriminatory conduct in violation of the Fair Housing Act. The parties desire to avoid costly and protracted litigation and agree that this dispute should be resolved without the necessity of an evidentiary hearing. Therefore, the parties have waived a hearing and the entry of findings of fact and conclusions of law and have agreed to the entry of this Consent Order, as indicated by the signatures appearing below.

Therefore, it is hereby ORDERED, ADJUDGED and DECREED:

I. Injunctive Relief

1. Defendants, their agents, employees, and all persons in active concert or participation with any of them are permanently enjoined, with respect to the rental of dwellings ⁽²⁾ at any location at which they engage in the rental of dwellings, from:
   1. discriminating on the basis of familial status, as prohibited by the Fair Housing Act, 42 U.S.C. § 3601, et seq.;
   2. taking any other action that violates the Act.

II. Occupancy Standards

1. To the extent Defendants adopt and enforce occupancy standards at all rental properties in which they have an ownership and/or management interest, such standards shall comply with the Fair Housing Act and conform to the requirements of all other applicable fair housing laws and regulations. In resolution of this matter, and in compliance with this Consent Order, Defendants have agreed to adopt an occupancy policy no more restrictive than that set forth in Appendix A of this Consent Order, and to distribute a copy of the policy to Defendants' tenants within twenty (20) days of the entry of this Order. ⁽³⁾
2. Defendants shall not consider the gender, age or the relationship of occupants in determining whom may reside in a unit, except for the exemption set forth in paragraph A. 4 of Appendix A,and except for a limitation on adults (people over the age of eighteen (18)) set forth in paragraph A. 2 of Appendix A;
3. For purposes of determining the maximum number of occupants who can reside in an apartment, the number of persons in a household is to be counted as of the date of lease signing; therefore, unborn children will not be counted as additional occupants. In accordance with applicable HUD regulations and/or guidelines, including "Occupancy Requirements of Subsidized Multifamily Housing Programs," Handbook 4350.3, an unborn child may be counted at the family's request to make the family eligible for a larger unit, provided that the family's eligibility for the smaller unit is not affected. In no event shall the landlord, its agents or employees, inform a family that it needs a larger unit, nor discourage a family from applying for a smaller unit for which it qualifies under this provision.
4. Nothing in this Section shall be construed to prevent the defendants from adopting occupancy policies that are less restrictive than that set forth in Appendix A.

III. Procedures for Monitoring Compliance with the Fair Housing Act

1. Defendants shall, with respect to dwellings rented at the Saturn Village Apartments:
   1. Maintain an Availability List which includes at least the following information: the address and apartment number of each unit known to be available for rental, the number of bedrooms in each such unit, the monthly rent for each such unit, the date Defendants were first informed it would be available for rental, and the first date it would be available for rental or occupancy by a new tenant;
   2. Maintain a Tenant Inquiry Log of all persons who inquire in person about the availability of rental units, stating the date of inquiry, and, for each person who provides such information, his or her name, current address, telephone number and family composition. If the person rents a unit, the unit number and date of occupancy for that person shall be noted on the Log. Defendants or their representatives shall make a good faith effort to obtain the information described by this paragraph with respect to each prospective applicant. Defendants shall inform prospective applicants who inquire about renting dwellings of all available units, if any, and if none is available, about the availability of a Waiting List;
   3. Permit all prospective applicants the opportunity to complete a written rental application and all approved ⁽⁴⁾ applicants to be placed on a Waiting List;
   4. Maintain a Rental Application Log setting forth the reasons for each rejected application for tenancy; and
   5. Maintain a Waiting List (or Lists) of all income-eligible applicants who wish to be placed on such a list in chronological order by date and time of inquiry. For all prospective applicants, the List shall state names, current addresses and telephone numbers, income eligibility, a description of the dwelling desired (e.g., number of bedrooms), and family composition. The Waiting List shall further indicate for each prospective applicant the date of placement on the List, the date(s) and time(s) of attempted or actual communications concerning the availability of a unit, and the nature (e.g., telephone call or letter) and result of all such communications. When Defendants or their agents or employees become aware of any vacancy at the Saturn Village Apartments, they shall make reasonable and uniform attempts to contact persons from the Waiting List, in the chronological order they are listed, except in the case of in-house transfers as a result of the process described in the occupancy policy set forth in Appendix A, before making that dwelling available to any other person.
2. Defendants shall, within ten (10) days after the entry of this Order, provide to the United States a complete and accurate list of all rental properties, other than Saturn Village, in which any Defendant has an ownership or management interest. The list shall include: 1) the name of the property; 2) its complete address; and 3) the identity of each Defendant having an ownership or management interest in the property.

IV. Mandatory Education and Training

1. Within ninety (90) days after the date of entry of this Order, Defendants and Defendants' agents and employees with responsibilities for or oversight of the rental of dwelling units at rental properties in which Defendants have an ownership and/or management interest, or for developing, modifying, implementing and/or teaching other agents and employees Defendants' occupancy policies, shall attend a program of educational training concerning their responsibilities under federal, state, and local fair housing laws, regulations, or ordinances. The program shall be conducted by an individual or entity approved by the United States, and shall cover the following subjects: 1) unlawful discrimination on the basis of familial status, including but not limited to the practice of restricting occupancy to one child per bedroom; 2) the provisions of the Keating Memorandum, including but not limited to its proscription against determining compliance with the Fair Housing Act based solely on the number of people permitted in each bedroom; 3) the provisions of the occupancy policy to be adopted pursuant to Section II. A of this Order; and 4) the provisions of the Consent Order. A representative of the Intermountain Fair Housing Council (IFHC) shall be permitted to attend this training session at no cost to the IFHC, and shall be permitted to make a presentation on behalf of the IFHC, not to exceed fifteen (15) minutes. Defendants shall bear any expenses associated with this program. All persons attending such a program shall have their attendance certified in writing by the person conducting the educational program.
2. Within (10) days after the date of entry of this Consent Order, Defendants shall conduct and complete the following described educational program for Defendants and Defendants' agents and employees with responsibilities for or oversight of the rental of dwelling units at rental properties in which Defendants have an ownership and/or management interest, or for developing, modifying, implementing and/or teaching other agents and employees Defendants' occupancy policies, to inform them of the provisions of this Order. Such program shall include:
   1. furnishing to each resident manager at each of defendants' rental properties a copy of this Consent Order for use and maintenance at the rental office, distributing the Consent Order to individuals at other locations (including, but not limited to, property managers) who have responsibility for developing, modifying, implementing and/or teaching other agents and employees Defendants' occupancy policies, and informing each such individual, in person, of the duties of Defendants and their agents and employees pursuant to the Order;
   2. securing the signed statement appearing at Exhibit A from each such employee and agent indicating that he or she has received, read, and understands this Consent Order and Defendants' policy of nondiscrimination and further understands that violation of the Order may result in sanctions against them by Defendants and/or the Court;
3. For the duration of this Order, each new agent or employee of Defendants with rental or oversight responsibilities at rental properties in which Defendants have any ownership and/or management interest shall be given a copy of and required to read this Consent Order, and sign the statement appearing at Exhibit A, within ten (10) days after the date he or she commences an employment or agency relationship with any owner or manager thereof.

V. Record Keeping and Monitoring

1. With respect to the rental of dwellings at the Saturn Village Apartments, Defendants shall:
   1. Maintain an Availability List prepared pursuant to Section III, above.
   2. Maintain a Tenant Inquiry Log prepared pursuant to Section III, above.
   3. Maintain a Rental Application Log prepared pursuant to Section III, above.
   4. Maintain all Waiting Lists prepared pursuant to Section III, above.
2. Defendants shall deliver to counsel for the United States reports annually for a three-year period of rental activities at the Saturn Village Apartments. The first report shall cover the period from the date this Order is entered to March 31, 2003. The second report shall cover the period from April 1, 2003 to March 31, 2004, and the third report shall cover the period from April 1, 2004 to March 31, 2005. The reports shall be delivered within twenty (20) days after the end of each period and shall consist of the following information:
   1. Copies of all signed statements secured pursuant to Sections IV.A, IV.B, and IV.C of this Order;
   2. Copies of the Availability Lists, Tenant Inquiry Logs, Rental Application Logs, and Waiting Lists maintained pursuant to Section III of this Consent Order;
   3. A listing, by unit number and familial status of the occupants, of the move-ins and move-outs during the reporting period; and

      The first report submitted pursuant to this Section shall also include:

   4. Written verification that Defendants and any other person required to do so have attended the education program mandated by Sections IV.A, IV.B and IV.C of this Order; and
   5. Certification by the Defendants that the fair housing posters required by Section VI.A and B of this Order, infra, have been posted in each office in which rental or sales activity is conducted.
3. During the term of this Order, Defendants shall preserve all records which are the source of, contain, or relate to any of the information pertinent to their obligations under this Order, including all rental applications and leases for dwellings at the Saturn Village Apartments. Upon reasonable notice to counsel for Defendants, representatives of the United States shall be permitted to inspect and copy all such records of Defendants at any and all reasonable times.
4. During the term of this Order, Defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any complaint alleging housing discrimination against Defendants, or against any of their employees or agents acting in the scope of their employment with the Defendants. They shall also promptly provide the United States all information it may request concerning any such complaint. ⁽⁵⁾

VI. Notification to Public of Nondiscriminatory Policies

Within five (5) days after the date of entry of this Consent Order, Defendants shall ensure that the following steps have been taken to notify the public of their nondiscriminatory policies:

1. Post and prominently display in the managers' offices at rental properties in which they have an ownership and/or management interest, and in any office where there is rental activity and/or personal contact with applicants for units at such properties, a HUD fair housing poster no smaller than ten (10) inches by thirteen (13) inches that indicates that all apartments are available for rent on a nondiscriminatory basis.
2. Include the words "Equal Housing Opportunity" or the fair housing logo as described in 24 C.F.R. §§ 200, Appendix to Subpart M to Part 200 (1999) in all advertising conducted by Defendants for properties in which they have an ownership and/or management interest in newspapers, telephone directories, radio, television or other media, and on all billboards, signs, pamphlets, brochures and other promotional literature. The words or logo should be prominently placed and easily legible.
3. Include the following phrase in the standard lease used for rental properties in which Defendants have an ownership and/or management interest:

   We are an equal housing opportunity provider. We do not discriminate because of race, color, sex, national origin, religion, handicap or familial status (having children under age eighteen (18)).

VII. Monetary Compensation

1. Within fifteen (15) days after the entry of this Consent Order, Defendants shall pay the following amounts to the following aggrieved persons in settlement of their claims for alleged economic damages and/or emotional distress damages:

   To:       Spencer D. and Toni Jones on behalf of themselves and on behalf of their minor children, D.J., C.J. and B.J.: $6,250.00 Payment shall be made by one certified check in the amount of $6,250.00

   payable to Spencer D. Jones and Toni Jones. The check shall be sent to counsel for the United States. ⁽⁶⁾ Upon receipt of the check, counsel for the United States shall forward the original release(s) of each aggrieved person's claims raised against Defendants in this lawsuit to counsel for the Defendants. ⁽⁷⁾ Counsel for the United States shall retain possession of the check on behalf of each aggrieved person until the release is forwarded to counsel for the Defendants. At that time, counsel for the United States shall transmit the check to the aggrieved persons.

   After examination of the settlement amounts designated for the minor aggrieved persons and the affidavits made by the parents on behalf of such minors that such amounts shall be used solely for the support and education of the minors, the Court finds that the interests of the minors have been taken into account and that with respect to those minors, the settlement amounts are fair and equitable and fully release the Defendants. ⁽⁸⁾ This Court further orders that this settlement and said release(s) are final and binding on all three (3) minor aggrieved persons and that they are forever barred from challenging this settlement in this or any other forum.

   Counsel for the United States shall also forward the original release of aggrieved person, the IFHC, to counsel for Defendants.

   Defendants' payment to any aggrieved persons as a result of this Consent Order is in settlement of a disputed claim. Defendants do not admit liability to any aggrieved person, and any payment does not constitute an admission of such liability.

VIII. Duration of Consent Order

Except where otherwise specified, the provisions of this Order shall remain in effect for three (3) years. The complaint in this action is dismissed with prejudice. The Court, however, shall retain jurisdiction for the term of this Consent Order to enforce the terms of the Order. The United States may move the Court to extend the duration of the Order in the interests of justice.

IX. 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 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. The Court shall retain jurisdiction to enforce the terms of this Order upon a motion to reopen the case for such purpose.

X. Time for Performance

Any time limits for performance imposed by this Consent Order may be extended by mutual agreement of the parties.

ORDERED this _________ day of _______________, 2002.

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

1. A maximum of two persons per one bedroom apartment, four persons per two bedroom apartment, and six persons per three bedroom apartment subject to the exceptions and qualifications set forth in paragraphs A. 3-6 and B. 1-2, below; ⁽⁹⁾

2. The maximum number of adults who may occupy any apartment is three. In one bedroom apartments, the maximum is two adults;

3. Defendants shall not consider gender, age or the relationship of occupants in determining whom may reside in a unit, except for the exemption in paragraph A. 4, below, and except for a limitation on the number of adults (people over the age of eighteen (18)) consistent with paragraph

A. 2, above;

4. The following is a special exemption for three bedroom units only (including two bedroom with den, and two bedroom with loft units):

if the seventh person in a family group wishing to rent a three bedroom unit is an infant (defined as a child twelve months of age or younger), the family group will be granted an exemption from the occupancy policy to allow up to seven (7) people to occupy the apartment. This exemption shall expire upon the end of the lease term following the infant's second birthday;

5. For purposes of determining the maximum number of occupants who can reside in an apartment, the number of persons in a household is to be counted as of the date of lease signing; therefore, unborn children will not be counted as additional occupants; ⁽¹⁰⁾

6. The addition of a child to a family during the lease term will not affect the family's continued occupancy; however, if the additional child causes the family to exceed the above occupancy policy, the lease will not be renewed at the end of the term. In the case of the addition of an infant (as defined above) by birth or adoption, the family shall have until the end of the lease term following the infant's second birthday to comply with the occupancy policy.

1. the property has no units available that are of the correct size for a family, but the property does have units of the correct size; and

2. the family otherwise would be homeless through dispossession or lack of current housing:

the family will be permitted to occupy a unit one size smaller than provided under the occupancy policy if such a unit is available. In the event the family accepts housing under this hardship exemption, the family agrees to transfer to the next available unit of the correct size upon thirty (30) days notice.

On ____________________, 2002, I was instructed by ____________________________________ with respect to my responsibilities under the (name of the property) rental policies and procedures and the Order entered by the federal district court in United States v. Cherrywood Associates, LP, Gerald C. Bauman, Thomas E. Dillon, Tomlinson & Associates, Inc., and Julie Winn, No. CV 00-724-S-BLW (D. Idaho). I have received a copy of and have read that Order. I understand my legal responsibilities under this Order and those policies and procedures, and I will comply with those responsibilities. I further understand that the Court may impose sanctions on me if I violate a provision of this Order and that my employer may also discipline me if I violate a provision of that Order. I further understand that the Fair Housing Act prohibits my employer from taking any adverse action against me for complying with this Order.

UNITED STATES OF AMERICA,                                                          No. CV 00-724-S-BLW

                 Plaintiff,

                 v.

CHERRYWOOD ASSOCIATES, LP,
GERALD C. BAUMAN, THOMAS E.                                                    CONSENT ORDER
DILLON, TOMLINSON & ASSOCIATES,
INC., and JULIE WINN,

                 Defendants.

___________________________________

We, Toni Jones and Spencer Jones, depose and say:

We are complainants in Jones vs. Saturn Village Apartments, HUD Case No. 10-98-0500-8, the housing discrimination complaint filed with the Department of Housing and Urban Development that resulted in the above captioned civil action.

1. We brought the housing discrimination complaint on behalf of ourselves and our three eldest children, D.J., C.J., and B.J., now ages six, five and one, respectively.
2. We are the custodial parents of D.J., C.J. and B. J.
3. We, Toni and Spencer Jones, believe that it is in the best interests of D.J., C.J. and B.J. to settle their claims for compensatory damages in this case, together with our own claims, for a total payment of six thousand two hundred fifty dollars ($6,250), as provided in the proposed Consent Decree.
4. We, Toni and Spencer Jones, agree that 60 % of this amount ($3,750.00) shall be used solely for the support and education of D.J., C.J. and B.J.
5. We understand that we will have to sign a release that will prevent D.J., C.J. and B. J. from bringing a lawsuit on the underlying facts of this case in the future.

We declare under penalty of perjury that the foregoing is true and correct. 28 U.S.C. § 1746

Executed on this ___ day of ______________, 2002.

1. "Familial status" has the meaning set forth in the Fair Housing Act, 42 U.S.C. § 3602(k).

2. "Dwelling" has the meaning set forth in the Fair Housing Act, 42 U.S.C. § 3602(b).

3. This Consent Order does not apply to properties in which Defendants acquire an ownership or management interest after entry of the Order. It applies only to properties currently owned or managed by Defendants and identified by them pursuant to Section III. B., infra.

4. "Approved" means subject to final verification prior to move-in.

5. All submissions to the United States or its counsel shall be made by Federal Express to: U.S. Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section, 1800 G Street, N.W., Washington, D.C. 20006 (Attn: DJ No. 175-22-32), or as otherwise directed by counsel for the United States.

6. The check should be sent by Federal Express to: Joan A. Magagna, Chief, Housing and Civil Enforcement Section, Civil Rights Division, U.S. Department of Justice, 1800 G Street, Suite 7002, Washington, D.C. 20006, and should be enclosed with a cover letter reflecting the case caption and number and the following "DJ" number: 175-22-32.

7. Counsel for the United States shall send, via facsimile, a copy of the signature page of the release(s) to counsel for the Defendants prior to production of the check by the Defendants. The provision of a copy of the signature page of the release via facsimile shall not discharge Defendants' duty to produce the check but shall serve as assurance that the original release(s) will be transmitted to Defendants upon receipt of the check by counsel for the United States.

8. The "Declaration" of Toni and Spencer Jones is attached hereto as "Exhibit B."

9. Lofts and dens will be considered bedrooms for purposes of occupancy.

10. In accordance with applicable HUD regulations and/or guidelines, including, "Occupancy Requirements of Subsidized Multifamily Housing Programs," Handbook 4350.3, the unborn child may be counted at the family's request to make the family eligible for a larger unit, provided that the family's eligibility for the smaller unit is not affected.