Housing And Civil Enforcement Cases Documents

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA,
     Plaintiff,

v.

Civil Action No. 01-C-0167

RSC DEVELOPMENT GROUP, INC.,
et al.,
     Defendants.

____________________________________

CONSENT DECREE

The United States, RSC Development Group, Inc., RSC/Hunt Club, LLC, LP Construction Co., and Richard Lettvin ("defendants") have agreed to this Consent Decree.

On January 9, 2001, the United States filed its Complaint alleging violations of Section 804(f)(3)(C) of the Fair Housing Amendments Act of 1988, 42 U.S.C. §3604(f)(3)(C) ("the Act"). Specifically, the United States' Complaint alleged that the defendants had engaged in a pattern or practice of discrimination by failing to design and construct Hunt Club Condominiums ("Hunt Club") with the features of accessible design set forth in 42 U.S.C. § 3604(f)(3)(C). The Complaint further alleged that defendants, together with architect Stephen T. Powers, ⁽¹⁾ were responsible for the design and construction of Hunt Club, which is located at Main Street and Hunt Club Drive in St. Charles, Illinois.

Hunt Club consists of eighty-six condominium units, located in two, elevator buildings of forty-three units each. Each building has its own common room. Defendants completed construction of all forty-three units in the first building ("building one") pursuant to the original designs of Mr. Powers. Defendants completed construction of the second building ("building two") pursuant to plans revised by Basil Associates, Inc., after the United States provided notification of the alleged violations of the Act in building one.

Hunt Club is a "covered multi-family dwelling" within the meaning of the Act, 42 U.S.C. § 3604(f)(7)(A). The Act requires that all units in such a dwelling include certain basic accessibility and adaptability design features. These design requirements 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 in a wheelchair can maneuver about the space. See 42 U.S.C. §3604(f)(3)(C).

The United States alleges that, as originally designed, none of the eighty-six units at Hunt Club fully complied with the requirements of 42 U.S.C. § 3604(f)(3)(C). Upon receiving notice from the United States of its preliminary investigative findings, defendants modified the plans for building two. All of the forty-three completed units in building one were constructed pursuant to the original designs. The United States alleges that none of the units in building one, as designed and constructed, fully comply with the requirements of 42 U.S.C. § 3604(f)(3)(C). The United States further alleges that units within building two at Hunt Club fail to contain an accessible route into and out of the dwellings.

For instance, the United States alleges in its Complaint regarding the units in building one that, as originally designed and as constructed, (1) virtually none of the doors in the individual condominium units are sufficiently wide to allow passage by persons with disabilities who use wheelchairs; (2) some routes into and through the units are inaccessible; (3) no reinforcements are provided in bathroom walls in the units to allow later installation of grab bars; and (4) bathrooms in the individual units are not usable such that an individual in a wheelchair can maneuver about the space. Indeed, at the time units in building one were for sale, an agent on duty at Hunt Club stated that doorways in both the Carlyle and Regency II model units were too narrow for someone who uses a wheelchair and that the space inside the master bathroom in the Regency II model could not accommodate a wheelchair.

The United States and defendants agree that this Court has jurisdiction over the subject matter of this case and 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.

It is hereby ORDERED, ADJUDGED and DECREED:

1. GENERAL INJUNCTION

Defendants, their officers, employees, agents, successors and assigns are permanently enjoined from discriminating on the basis of disability as prohibited by the Act, 42 U.S.C. § 3604(f)(3)(C), including the following actions:

1. Discriminating in the sale or rental, or otherwise making unavailable or denying, a dwelling to any buyer or renter because of a disability of that buyer or renter, any person residing in or intending to reside in that dwelling after it is sold or made available, or any person associated with that buyer or renter;
2. Discriminating against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of facilities in connection with such a dwelling, because of a disability of that person, a person residing in or intending to reside in the dwelling after it is sold, or any person associated with that person; and
3. Designing and constructing covered multifamily dwellings in such a manner that:
   1. The public use and common use portions of the dwellings, including any rental or sales offices or other places of public accommodation within the meaning of Section 303(a)(1) of the Americans with Disabilities Act, 42 U.S.C. §12183(a)(1), are not readily accessible to and usable by persons with disabilities;
   2. All the doors designed to allow passage into and within all premises within such dwellings are not sufficiently wide to allow passage by persons in wheelchairs;
   3. All premises within such dwellings do not contain the following features of adaptive design:
      1. an accessible route into and through the dwelling;
      2. light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
      3. reinforcements in bathroom walls to allow later installation of grab bars; and
      4. usable kitchens and bathrooms, such that an individual using a wheelchair can maneuver about the space.

2. CORRECTIVE ACTIONS

1. Public Use and Common Areas
   1. The parties intend that defendants make the modifications specified in Appendix A to the common and public use areas of Hunt Club. Accordingly, within thirty (30) days of the entry of the Consent Decree, defendants shall seek, and shall in good faith make its best efforts to obtain, the consent of Hunt Club Condominium Association at Hunt Club to permit these modifications. Defendants shall make these modifications at no expense to the Association and shall attempt in good faith to minimize any inconvenience to the Association. Defendants shall complete the modifications specified in Appendix A within one (1) year of the effective date of the Consent Decree, ⁽²⁾ or, if it is unable to do so because consent by the Association is delayed, as soon as practicable thereafter.
   2. In the event the Association refuses to grant defendants permission to make any of the modifications specified in Appendix A, defendants shall promptly notify counsel for the United States in writing. In the event the United States seeks to modify the Consent Decree so as to require the Association to permit the modifications, defendants shall not oppose the United States' motion to modify the Consent Decree, or the joinder of the Association as a necessary party, for the purpose of ordering the Association to permit defendants to make the modifications.
   3. Within forty-five (45) days of completion of all of the modifications specified in Appendix A, defendants shall provide written certification by an architectural firm or other person or entity with expertise in the design and construction requirements of the Fair Housing Act that the defendants have correctly made the modifications set forth in Appendix A.
2. Remedies for Alleged Noncompliant Units

   The United States alleges that individual dwelling units at Hunt Club do not meet the standards of the Act and the Guidelines. These units are fully constructed and have been sold to individual owners. To address these remaining alleged violations, defendants have agreed to take the actions set forth in Section IV below.

3. NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION

Every six (6) months, for a period of four and a half (4 ½) years from the effective date of this Consent Decree, defendant Richard Lettvin shall, regarding any covered, multi-family dwellings intended to be developed or built by him, ⁽³⁾ submit to counsel for the United States ⁽⁴⁾ the following information: a) the name and address of the project; b) the names and addresses of all architects and site engineers responsible for the design of the project; c) a description of the project and the individual units, including number and type of dwellings and amenities at the project; and d) a statement by the architect and the site engineer, or an architect knowledgeable of the standards of Section 804(f)(3)(C) of the Act and the Guidelines, describing his or her knowledge and training in the field of accessible design and certifying that he or she has reviewed the construction and site plans and that they fully comply with the requirements of the Act. This information need be submitted only once for any new covered multi-family project.

4. RETROFIT FUND

1. Defendants shall provide the total sum of NINETY-FIVE THOUSAND DOLLARS ($95,000.00) to be used to retrofit covered units at Hunt Club as set forth in paragraph B below. Defendants shall pay the sum required under this Section according to the following schedule:

   Payment No.	Due Date	Amount Due
   1.	45 days from the effective date of this Consent Decree	$10,000.00
   2.	165 days from the effective date of this Consent Decree	$10,000.00
   3.	1 year from the effective date of this Consent Decree	$15,000.00
   4.	2 years from the effective date of this Consent Decree	$15,000.00
   5.	3 years from the effective date of this Consent Decree	$20,000.00
   6.	4 years from the effective date of this Consent Decree	$25,000.00
   Total		$95,000.00

   Payments due under this Section shall be forwarded to counsel for the United States ⁽⁵⁾ for deposit in an interest-bearing account to be designated by the United States.

2. The money specified in the preceding subparagraph along with all interest accumulated (less cost for maintaining this fund) (hereinafter "the Fund") is to be made available, beginning 180 days from the effective date of this Decree and through its duration (see Section IX, infra) or until such money is fully paid out, to provide grants to assist the owners of the non-complying units to modify their units to meet all or some of the requirements of 42 U.S.C. § 3604(f)(3)(C). Specifically, money from the Fund shall be used to provide grants to subsidize the cost of modifications, up to an amount to be set the United States, ⁽⁶⁾ that: (a) make doors sufficiently wide to allow passage by persons using wheelchairs; (b) provide an accessible route into and through the dwelling; (c) locate light switches, electrical outlets, thermostats and environmental controls in accessible locations; (d) provide reinforcements in bathroom walls or otherwise provide for the installation of grab bars; and (e) provide usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. Money from the Fund also may be used by the owner of a non-complying unit to fund or subsidize any other reasonable modification to his/her unit that would increase accessibility for a person with a disability.
3. The United States, and/or an entity selected by the United States, shall determine:
   1. All procedures and guidelines to be followed for requested and approving requests for grants;
   2. The identity of each person entitled to receive a modification grant from the Fund;
   3. Whether the desired modification(s) fall(s) with the scope of this Decree; and
   4. The amount of such grant.

3. Within one hundred and twenty (120) days of the effective date of this Consent Decree, the United States shall notify all owners of covered units at Hunt Club of the availability of grants under this Section to subsidize, up to an amount to be determined by the United States or its designee, the retrofitting of their unit, including in such notice the specific procedures and guidelines for applying for a grant.
4. If money remains in the Fund after five (5) years from the effective date of this Consent Decree, the remaining money shall be given to an organization, to be designated by the United States, for the purpose of furthering fair housing for persons with disabilities or to fund additional modifications of the common areas at Hunt Club designed to improve accessibility by persons with disabilities. The United States may require the recipient organization sign an agreement regarding the use of the funds.

5. CIVIL PENALTY

Four (4) years from the effective date of this Decree, defendants shall pay the total sum of five thousand dollars ($5,000) to the United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C). Said sum shall be paid by sending a check made payable to "United States of America" to counsel for the United States. ⁽⁷⁾

6. EDUCATIONAL PROGRAM

1. Within thirty (30) days of the effective date of this Consent Decree, defendants shall provide to all their employees, agents, and contractors involved in the design, construction, rental, or sale of multi-family dwellings covered by the Act, training on the following: (1) the terms of this Consent Decree; (2) the requirements of the Act with a particular emphasis on the Act's design and construction requirements, and (iii) their responsibilities and obligations to follow construction plans and otherwise comply with the Act's design and construction requirements. The training shall be conducted by a qualified person or organization approved by the United States. Any expenses associated with this training shall be borne by defendants. Each person receiving such training shall execute a statement indicating that he or she has received such instruction and understands his or her obligations under the Act. Every six months for the duration of this Decree, defendants shall forward a copy of each new statement obtained during the preceding period to counsel for the United States.
2. Each new employee, agent or contractor involved in the design, construction, rental or sale of covered multi-family dwellings retained by any of the defendants during the term of this Decree shall receive written instruction on (1) the terms of this Consent Decree; (2) the requirements of the Act with a particular emphasis on the Act's design and construction requirements; and (3) their responsibilities and obligations to follow construction plans and otherwise comply with the Act's design and construction requirements. Each such person retained by defendants during the term of this Decree must receive such written instruction within thirty (30) days after the date he or she commences an employment, agency or contractual relationship with defendants and shall execute a statement indicating that he or she has received such instruction and understands his or her obligations under the Act. Every six (6) months for the duration of this Decree, defendants shall forward a copy of each new statement obtained during the preceding period to counsel for the United States.

7. NOTICE TO THE PUBLIC OF DEFENDANTS' NON-DISCRIMINATION POLICY

1. Within ten (10) days of the date of the effective date of this Consent Decree, defendants shall post and prominently display in the sales or rental offices of all covered multi-family housing owned or operated by it, a sign no smaller than ten (10) by fourteen (14) inches indicating that all dwellings are available for sale or rental on a nondiscriminatory basis. Defendants shall also post such a sign in the sales or rental office of any other covered multi-family housing developed or acquired by it during the effective period of this Consent Decree within ten (10) days of commencing construction. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement.
2. In addition, for the duration of this Consent Decree, in all future advertising in newspapers, and on pamphlets, brochures and other promotional literature regarding any covered, multi-family dwellings designed or constructed by any of the defendants, defendants shall place, in a conspicuous location, a statement or recognized logo demonstrating that the dwelling units meet the accessibility features for persons with disabilities required by the federal Fair Housing Act. The statement, "FHAA Accessible," along with the symbol of universal access, placed in a conspicuous location, shall be deemed to satisfy this requirement.

8. REPORTING AND DOCUMENT RETENTION REQUIREMENTS

1. Sixty (60) days after the entry of this Consent Decree, defendants shall submit to counsel for the United States an initial report containing the following:
   1. Signed statements of current employees, agents and contractors who have completed the educational program (see Section VI, A); and
   2. Copies of the written instructional materials to be provided to new employees, agents, or contractors pursuant to Section VI, B.
2. Six (6) months after the effective date of this Consent Decree, and every six (6) months thereafter for the duration of this Decree, defendants shall submit to counsel for the United States a report containing the following:
   1. Documents containing information and certifications for new construction (see Section III);
   2. Signed statements of new employees, agents and contractors who have received the written notice pertaining to compliance with the Act during the most recent reporting period (see Section VI, B); and
   3. A description of the efforts to comply with Section II, A undertaken during the most recent reporting period.
3. Defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written administrative or legal complaint against either of them, or against any of their employees or agents, alleging a denial of housing on the basis of disability in violation of 42 U.S.C. §3604(f). They shall also promptly provide the United States all information it may request concerning any such complaint.
4. For the term of this Consent Decree, defendants are required to preserve all records related to this Consent Decree, for all properties designed, constructed, owned, operated, or acquired by them. Upon reasonable notice to the defendants, representatives of the United States shall be permitted to inspect and copy any records of defendants or inspect any developments or residential units under defendant's control covered by the Act bearing on compliance with this Consent Decree at any and all reasonable times; provided, however, that the United States shall endeavor to minimize any inconvenience to defendants from such inspections.

9. DURATION OF DECREE AND TERMINATION OF LEGAL ACTION

1. This Consent Decree shall remain in effect for five (5) years after the date of its entry.
2. By consenting to the entry of this Decree, the parties agree that any future violation of the Fair Housing Act by defendants occurring after the date of this Decree shall constitute a "subsequent violation" pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii).
3. The United States' Complaint shall be dismissed without prejudice to the right of the United States or defendants to petition the Court, at any time during the duration of this Decree, to reopen the case for the purpose of enforcing or modifying the Decree. The parties to this Consent Decree shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Decree prior to bringing such matters to the Court for resolution.

10. COSTS OF LITIGATION AND IMPOSITION OF INTEREST

1. Each party to this litigation will bear its own costs and attorney's fees associated with this litigation.
2. In the event that defendants fail to make any payment due under the provisions of Sections IV or V, supra, on or before the due date, interest shall accrue on any amount owing - calculated from the due date set forth in this Consent Decree - at the amount of interest accruing for civil judgments as provided pursuant to 28 U.S.C. § 1961.

It is so ORDERED this __________ day of __________ 2002.

Agreed to by the parties as indicated by the signatures of counsel below:

1. Mr. Powers passed away on October 4, 1997.

2. As used herein, "effective date of this Consent Decree" shall mean the date upon which this Consent Decree is entered by the Court.

3. This provision applies to Mr. Lettvin personally, and to any to any corporation, limited liability company, or partnership or other business entity, in which Mr. Lettvin is an officer, director, managing member, or general partner or in which he owns at least a ten (10) per cent interest.

4. For purposes of this Decree, counsel for the United States is Chief, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, 950 Pennsylvania Ave., N.W., Housing & Civil Enforcement Section - G St. Washington, D.C. 20530, Attn: DJ# 175-23-634.

5. See n.4, supra.

6. Any difference between the amount of the grant and the total estimated cost of the modification project shall be borne by the applicant.

7. See n.4, supra.

Document Filed: May 9, 2002 > >