AND CHURCHILL DOWNS,
INC.
A. PARTIES
1. The
United States is Plaintiff in this action and brings this suit pursuant to its
authority under the Fair Housing Act (the "Act"), 42 U.S.C. § 3601 et
seq., specifically 42 U.S.C. § 3612 (o) and 42 U.S.C. § 3614(a).
2. Plaintiff-Intervenor
HOPE Fair Housing Center, Inc., is an Illinois not-for-profit corporation with
its principal place of business located in Wheaton, Illinois ("HOPE"). HOPE's
primary purpose is to promote equal opportunity in housing. The United States
alleges that HOPE is an aggrieved person under 42 U.S.C. § 3602(i).
3. Defendant
Arlington Park Racecourse, LLC ("Arlington Park"), is an Illinois limited
liability company that does business in the Northern District of Illinois.
Defendant Churchill Downs Incorporated ("Churchill Downs"), is a Kentucky
corporation that does business in the Northern District of Illinois. Arlington
Park is a wholly-owned subsidiary of Churchill Downs.
4. Since
at least 2000, and continuing to the present, Defendants have owned and operated
housing located in the area of Arlington Park, commonly known as the
"Backstretch," where seasonal workers, commonly referred to as "Backstretch
Workers," and in some cases their families, reside during the Arlington Park
racing season, which runs approximately from May through September of each year.
5. For
the purposes of this Consent Decree, the Parties may be referred to as "Party"
or "Parties," and this Consent Decree may be referred to as "Decree."
B. BACKGROUND
6. On
June 24, 2004, HOPE filed a complaint with the United States Department of
Housing and Urban Development ("HUD"), pursuant to section 810(a) of the Act, 42
U.S.C. 3610(a). The complaint alleged, inter alia, that Defendants had
discriminated based on familial status, in violation of the Act. Pursuant to the
requirements of 42 U.S.C. §§ 3610(a) and (b), the Secretary of HUD
conducted and completed an investigation of the complaint, and prepared a final
investigative report. Based on the information gathered in the investigation,
the Secretary, pursuant to 42 U.S.C. § 3610(g)(1), determined that there was
reasonable cause to believe that discriminatory housing practices had occurred.
Accordingly, on August 23, 2005, HUD issued a Charge of Discrimination, pursuant
to 42 U.S.C. §§ 3610(g)(1)-(2), charging Defendants with engaging in
discriminatory housing practices on the basis of familial status, in violation
of the Fair Housing Act, as amended, 42 U.S.C. §§ 3601, et seq. On
September 14, 2005, HOPE made a timely election to have its claims resolved in
federal court, pursuant to 42 U.S.C. § 3612(a).
7. The
United States filed this lawsuit on September 30, 2005. In its complaint, the
United States alleges that Defendants Arlington Park and Churchill Downs
discriminated on the basis of familial status in violation of the Act in the
provision of housing for Backstretch Workers at Arlington Park. Among other
things, the United States alleges that Defendants maintained a policy of
prohibiting families with children from living in Buildings One and Four through
Eight in the §Backstretch§ and that the housing Defendants did provide to
families with children was generally inferior (lacking air-conditioning and
private bathrooms) to the Backstretch housing from which families with children
were prohibited.
8.
On October 26, 2005, HOPE moved to intervene in this action as a matter of right
pursuant to 42 U.S.C. § 3612(o)(2). The Court granted HOPE's motion on November
3, 2005. On November 3, 2006, HOPE filed its Complaint In Intervention against
Defendants.
9. On
March 21, 2006, Defendants filed their Answers and Affirmative Defenses to both
the United States' and HOPE's complaints, asserting, in their affirmative
defenses, that Arlington Park's policy of reserving Buildings Two, Three, Nine
and Ten for Backstretch Workers with families is intended to protect the health,
safety, and welfare of the children of Backstretch Workers from the open and
obvious dangers associated with Buildings One and Four through Eight due to the
close proximity of those Buildings both to the stabling and care of thoroughbred
race horses on the Arlington Park Backstretch, and to the related heavy
agricultural and industrial operations.
C. INTENT OF THE PARTIES
10. The
Parties have agreed that settlement of this matter without incurring the cost,
inconvenience and uncertainty of further litigation is in the best interest of
the Parties, the workers who reside on the Backstretch, and their families.
11. It
is understood and agreed that this Consent Decree is the compromise of disputed
claims and is not to be construed as an admission of liability by Defendants,
and that Defendants deny and continue to deny the claims alleged by the United
States and HOPE.
D.CONSENT OF THE PARTIES TO ENTRY OF THIS
ORDER
12. The Parties agree that this Court has jurisdiction over the
subject matter of this case pursuant to 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C.
§§ 3612(o), 3613, and 3614(a). The Parties have negotiated a settlement to the
claims raised in this case. Accordingly, the Parties have jointly consented to
the entry of this Consent Decree as indicated by the signatures appearing
below.
E. APPROVAL OF THE COURT TO ENTRY OF THIS
ORDER
13. The
Court hereby finds and concludes that the Consent Decree is lawful, reasonable,
and equitable, and that its terms and provisions provide for a full, fair and
adequate settlement and resolution of the matters in controversy and is in the
best interest of the Parties, the workers who reside on the Backstretch, and
their families.
Therefore, it is hereby ORDERED, ADJUDGED and
DECREED:
II. DEFINITIONS
14.The following terms, when
used in this Consent Decree, shall have the following meaning:
a. "Backstretch"
refers to the area at Arlington Park where the stables and training facilities
for thoroughbred racehorses are located and where certain workers engaged in the
care of horses reside during the racing season.
b. "Backstretch
Workers" refers to those persons who are licensed by the Illinois Racing Board,
who are employed by Trainers associated with Arlington Park, and who reside in
Backstretch housing during the racing season.
c. "Backstretch
Housing" refers to buildings in which Backstretch workers and in some cases
their Families reside during the racing season at Arlington Park, which runs
approximately from May through September. Specific Backstretch Housing buildings
are sometimes referred to by number ranging currently from Building One to
Building Ten. A copy of an aerial photograph of the Backstretch, identifying
each of the currently numbered buildings is provided as Attachment A hereto.
d. "Family,"
"Families," or "Familial Status" is defined as the term "familial status" is
defined at 42 U.S.C. § 3602(k).
e. "Trainers"
refers to those individuals that prepare and maintain thoroughbred racehorses at
Arlington Park during its racing season. Trainers are independent contractors
pursuant to arrangements with the owners of thoroughbred racehorses and are the
employers of Backstretch Workers. Defendants do not employ either Trainers or
Backstretch Workers.
III. GENERAL NONDISCRIMINATION PROVISIONS
15. For
the term of this Consent Decree, Defendants shall not take any of the following
actions with respect to housing at Arlington Park:
a. unlawfully
deny or otherwise make unavailable a dwelling because of Familial Status;
b. unlawfully
discriminate against any person in the terms, conditions, or privileges of a
dwelling, or in the provision of services or facilities in connection therewith,
because of Familial Status;
c. make,
print, or publish, or cause to be made, printed, or published any notice,
statement, or advertisement, with respect to the sale or rental of a dwelling
that indicates any preference, limitation, or discrimination based on Familial
Status, or an intention to make any such preference, limitation, or
discrimination;
d. coerce,
intimidate, threaten, or interfere with any person in the exercise or enjoyment
of, or on account of his having exercised or enjoyed, or on account of his
having aided or encouraged any other person in the exercise or enjoyment of, any
right protected by the Fair Housing Act based upon Familial
Status.
IV. SPECIFIC INJUNCTIVE RELIEF
16. Consistent
with the above injunction, Defendants shall not take any action to enforce, or
enact any rules, regulations, policies, or practices pertaining to occupancy in
any Backstretch Housing at Arlington Park, that prohibits Families from residing
in certain buildings or in certain units in those buildings. Nor shall
Defendants make any written or verbal statements stating or otherwise indicating
that Families are not permitted to live in any units or buildings in the
Backstretch Housing at Arlington Park. However, neither this paragraph nor
paragraph 15, above, shall be construed to prohibit Defendants from taking the
actions specifically authorized in paragraphs 27 through 33 of this Decree.
V. FAIR HOUSING TRAINING
17. No
later than April 15, 2007, or the date on which the first assignment of housing
is made for the 2007 racing season, whichever is earlier, the Defendants shall
provide this Consent Decree to all employees involved with the assignment,
supervision, and management of Backstretch Housing at Arlington Park, and secure
a signed statement, Attachment B, from each person that he or she has received,
read and understands the Consent Decree.
18. Within
thirty (30) days after the date he or she commences an agency or employment with
the Defendants, each new employee involved with the assignment, supervision, and
management of Backstretch Housing at Arlington Park shall be given this Consent
Decree and be required to sign the statement at Attachment B acknowledging that
he or she has received, read and understands this Consent Decree.
19. No
later than April 15, 2007, or the date on which the first assignment of housing
is made for the 2007 racing season, whichever is earlier, Defendants shall
provide fair housing training, with a focus on familial status issues, to all
employees involved with the assignment, supervision, and management of
Backstretch Housing at Arlington Park. The training shall be conducted by a
qualified third party approved by the United States. Defendants shall provide
similar fair housing training no later than April 15, or the date on which the
first assignment of housing is made for each racing season, in each year this
Consent Decree is in effect for any employee involved with the assignment,
supervision, and management of Backstretch Housing at Arlington Park who was
hired since the previous training. Each person who attends the training shall be
required to sign and submit a certification acknowledging that he or she has
received the training (Attachment C). The Defendants shall pay all costs
associated with such training.
VI. COMPLIANCE
20. The
Defendants shall prepare an annual report that details all actions they have
taken to fulfill their obligations under this Consent Decree ("Compliance
Report"). Defendants shall submit their first Compliance Report to the United
States within three (3) months after the last day of racing during the first
full season of racing covered by this Consent Decree, and subsequent reports
within three (3) months after the conclusion of each racing season thereafter
for the duration of the Consent Decree.
21. The
Defendants shall include the following information in the Compliance
Reports:
a. copies
of the training certification and acknowledgment forms signed since the last
report;
b. any
written complaint received since the last report alleging that the Defendants
violated the Fair Housing Act on the basis of Familial Status or engaged in
unlawful retaliation in connection with Familial Status. The Defendants shall
indicate any action they have taken in response to the complaint, and shall
include all pertinent documents, including a copy of the complaint, any
documents filed with the complaint, and any written response to the complaint by
the Defendants;
c. an
accounting for each building in the Backstretch Housing that includes (1) the
number of occupied units; and (2) the number of units occupied by Families.
22. For
the duration of this Consent Decree, the Defendants shall maintain all records
relating to implementation of and compliance with all provisions of this Consent
Decree, including, but not limited to, all records related to building or zoning
applications involving Backstretch Housing. The United States shall have the
opportunity to inspect and copy any records maintained as required by and
relevant to this Consent Decree after giving reasonable notice to
Defendants.
VII. ADDITIONAL RESOURCES FOR BACKSTRETCH WORKERS WITH
FAMILIES WHO RESIDE ON THE BACKSTRETCH
23. As
part of the resolution of HOPE’s claims against Defendants herein, HOPE and
Defendants have agreed that Defendants shall, within five (5) days of entry of
this Consent Decree, pay $100,000 to the Township High School District 214 (the
"School District"), which has agreed to use such funds for the direct benefit
of, and for the purpose of improving, the living conditions of Families that
reside in the Backstretch at Arlington Park during the term of the Decree.
Specifically, the School District will use the funds paid by Defendants pursuant
to this paragraph to expand its "Kids on Track" summer enrichment program to
operate on Saturdays and Sundays for eight weeks each summer. The School
District estimates that this expansion of the program shall cost approximately
$30,000 per year. If there are any funds remaining, those remaining funds shall
be used to purchase new recreational and/or computer equipment and education
software to be used for the children of Backstretch Workers in conjunction with
the enrichment programs operated by the School District. Nothing in this
paragraph obligates Defendants to pay any amount greater than $100,000.
VIII. BACKSTRETCH HOUSING
24. By
no later than the date on which Backstretch Workers begin living at Arlington
Park for the 2007 racing season (the "Completion Date"), Defendants shall
complete construction of, and secure occupancy permits for, a new 48-unit
building ("Building Eleven") with air-conditioning and living quarters of
approximately 260 square feet and a 71 square foot private bathroom area, and
make that building available to Backstretch Workers with Families. Building
Eleven shall be located adjacent to existing Buildings Nine and Ten.
25. Defendants
have committed to, and expect to, complete Building Eleven by the Completion
Date. In the event that Building Eleven is not completed by the Completion Date,
as defined above, by reason of "Force Majeure" (as hereinafter defined), then no
breach of this Consent Decree shall be deemed to have occurred with respect
thereto. "Force Majeure" shall mean an Act of God, strike, fire, riot, civil
commotion, governmental action, governmental decree, extraordinary weather
conditions, or any other event or circumstance beyond the reasonable control of
Defendants. Defendants shall notify the United States promptly when they
reasonably believe that they will not be able to complete Building 11 by the
Completion Date for the reasons described in this paragraph and shall thereafter
complete Building 11 and begin housing Backstretch Workers and their Families
therein as early as is reasonable under the circumstances.
26. By
no later than the date on which Backstretch Workers begin living at Arlington
Park for the start of the 2007 racing season, Defendants shall install and
maintain a working window air conditioner in each dwelling unit in Building
Two.
27. Defendants
shall continue to make Building Two available for housing Backstretch Workers
and their Families through the end of the 2007 season. Thereafter, and until the
expiration of this Consent Decree, Defendants shall continue to make Building
Two available for housing Backstretch Workers with Families unless and until the
housing in Building Two has been replaced by a minimum of forty-eight new
residential units, with air-conditioning, and with living areas and private
bathrooms substantially equivalent in size to the units in Building Eleven (the
"Additional Housing"). Such Additional Housing shall be in addition to the
housing provided in Buildings Nine, Ten, and Eleven. However, Defendants shall
be allowed to eliminate housing in Building Two at any time after the end of the
2007 racing season and prior to the expiration of this Consent Decree, without
being required to construct the Additional Housing, as defined above, if and
only if: (1) the Completion Date for Building Eleven has been met pursuant to
paragraphs 24 and 25, above, and (2) prior to or contemporaneous with the
closing of Building Two, Defendants either (a) eliminate all Backstretch Housing
in Building One; or (b) eliminate all Backstretch Housing in Buildings Four
through Eight.
28. Defendants assert that the close
proximity of Buildings One and Four through Eight to the stabling and care of
thoroughbred race horses, which are powerful, high-strung and
unpredictable animals given to highly erratic behavior in response to the
slightest distraction or disruption in their daily (and nightly) routines, and
to the various heavy agricultural and industrial operations related to the
stabling and care of the thoroughbred race horses pose significant risks
and dangers for persons residing in those Buildings. For these reasons,
Defendants further assert that licensed Backstretch Workers are best qualified
to reside in Buildings One and Four through Eight.
29. The
Parties agree that Defendants may restrict Building One and Buildings Four
through Eight, which are located adjacent to stables, exclusively to licensed
Backstretch Workers employed in that capacity at Arlington Park (the "Licensed
Worker Restriction"), provided that the Licensed Worker Restriction is applied
consistently and evenly without regard to Familial Status.
30. The
United States and HOPE agree that, consistent with paragraph 16 of this Decree,
application of the Licensed Worker Restriction by Defendants shall not
constitute unlawful discrimination on the basis of Familial Status in violation
of this Decree or the Fair Housing Act.
31. Defendants'
right to apply the Licensed Worker Restriction shall survive the expiration of
this Decree without constituting a violation of either this Decree or the Fair
Housing Act, consistent with paragraph 16 of this Decree, provided that
Defendants continue to make Buildings 9, 10, and 11 available to Backstretch
Workers with Families.
32. Defendants
have indicated that they may demolish or close Building Three prior to the start
of the 2007 racing season. If Defendants make any part of Building Three
available to house Backstretch Workers during the term of the Consent Decree,
however, such housing shall be operated in accordance with paragraphs 15 and 16
of this Decree.
33. Nothing
in this Decree shall be interpreted as prohibiting Defendants from closing all
Backstretch Housing based on future business necessity.
34. On
January 16, 2007, Plaintiff Intervenor HOPE and the Village of Arlington Heights
(the "Village") entered into a settlement agreement (the "Settlement Agreement")
settling the matter of HOPE v. Village
of Arlington Heights, HUD Case No. 05-05-0004-6, a matter arising under
42 U.S.C. § 2000(d) (Title VI of the Civil Rights Act of 1964). (A
fully-executed copy of the Settlement Agreement is attached hereto as Attachment
D.) As part of the Settlement Agreement, the Village has agreed to adopt a
minimum floor space occupancy requirement of 43 square feet per person for the
living areas of all Backstretch Housing (i.e., excluding kitchen and
bathroom areas) (the "Occupancy Limit"). Nothing in this Decree shall be
construed to impose a different minimum per person floor space occupancy
requirement for Backstretch Housing.
35. By
no later than the date on which Backstretch Workers begin living at Arlington
Park for the 2007 racing season, Defendants shall post a notice of at least 8 1½
by 11 inches in size, in English and Spanish, that describes the settlement of
this lawsuit and states, consistent with paragraphs 15 and 16 of this Decree,
that Defendants do not discriminate on the basis of Familial Status (the
"Notice"). To the extent Defendants have elected to implement the Licensed
Worker Restriction, that also shall be stated in the Notice. A copy of this
Notice is attached hereto as Attachment E. Defendants shall ensure that this
Notice remains posted through the end of the 2007 racing season.
36. Defendants
shall distribute this Notice to all Trainers with horses at the Arlington Park
Racecourse at least thirty (30) days prior to the beginning of the 2007 racing
season.
IX. CIVIL PENALTY
37. Defendants
shall pay ten thousand dollars ($10,000.00) to the United States as a payment to
vindicate the public interest under 42 U.S.C. § 3614(d)(1)(C). Within ten (10)
days after the effective date of this Consent Decree, Defendants shall deliver
to the United States a check for $10,000.00 made payable to the "United States
Treasury." Any subsequent violation of the provisions of the Fair Housing Act
relating to familial discrimination by the Defendants shall constitute a
"subsequent violation" within the meaning of 42 U.S.C. § 3614(d)((1)(C)(ii).
X. HOPE FAIR HOUSING CENTER DIVERSION
OF RESOURCES COSTS AND ATTORNEY'S FEES
38. Within
thirty (30) days of entry of this Decree, Defendants shall pay to HOPE and its
attorneys the sum of $60,000 dollars as complete and final settlement of any and
all claims by HOPE against Defendants.
39. HOPE
hereby forever releases and discharges Defendants, and each of their officers,
employees, agents, attorneys, directors, members, managers, shareholders,
parents, subsidiaries, successors and assigns, and all other persons in active
concert or participation with Defendants with respect to Backstretch Housing at
Arlington Park, from any and all claims that HOPE has, had, or might have,
relating in any way to the transactions or occurrences giving rise to its
Complaint in Intervention against Defendants filed herein, as of the date of
entry of this Consent Decree.
XI.
DURATION OF DECREE AND TERMINATION OF LEGAL ACTION
40. This
Consent Decree shall be in effect until December 31, 2009 or until three months
after the United States receives the Defendants' compliance report for the 2009
racing season, whichever occurs last, after which time this case shall be
dismissed with prejudice.
41. This
Consent Decree constitutes a full and final resolution of all claims of
violation of the Fair Housing Act that the United States or HOPE alleged, or
could have alleged, in this action relating to familial status discrimination in
housing provided by Defendants in the Backstretch, as well as any claims related
in any way to the Occupancy Limit described in paragraph 34 of this Decree.
42. 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 a Defendant to perform in a timely manner any act required by this
Consent Decree or otherwise to act in conformance with any provision thereof,
the other Parties 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 damages,
incurred as a result of the alleged violation or failure to perform.
43. The
Court shall retain jurisdiction over this matter for all purposes, including
enabling any Party to this Consent Decree to apply to the Court for such further
orders as may be necessary for, or consistent with, the enforcement of this
Consent Decree, including, but not limited to, moving the Court to extend the
duration of the Decree in the interests of Justice.
XII. TIME FOR PERFORMANCE
44. Any
time limits for performance imposed by this Consent Decree may be extended by
the mutual agreement, in writing, of Plaintiff United States and the relevant
Defendant.
XIII. MISCELLANEOUS
45. This
Consent Decree shall be binding upon and inure to the benefit of the Parties
hereto and their representatives, heirs, successors and assigns.
46. This
Consent Decree shall be construed under federal law, and insofar as state law
may be applicable, the laws of the State of Illinois.
47. All
notices, reports, remittances, or the like required or desired to be given
hereunder shall be sent by U.S. Mail and addressed to the parties as
follows:
If
to Churchill Downs and/or Arlington Park:
Arlington Park Racecourse,
LLC
P.O. Box 7
Arlington Heights, Illinois
60006
Attn: Roy A. Arnold,
President
and:
Churchill Downs
Incorporated
700 Central Avenue
Louisville, Kentucky
40208
Attn: Steve Sexton, Executive
Vice President, Operations and
Rebecca
C. Reed, Senior Vice President, Legal Affairs
With a copy to:
Jay S. Dobrutsky
Burke, Warren, MacKay &
Serritella, P.C.
22nd Floor
330 North Wabash Avenue
Chicago, Illinois 60611
If to the United
States:
Chief,
Housing
and Civil Enforcement Section
Civil
Rights Division
United
States Department of Justice
950
Pennsylvania Ave. NW Building, G St.,
Washington,
D.C. 20530.
Attn:
DJ No. 175-23-763
If to HOPE:
Jeffrey
Taren, Esq.
Kinoy,
Taren and Geraghty
224 S Michigan Ave., #
300
Chicago,
IL 60604
48. This
Consent Decree may be executed in counterpart.
IT IS
SO ORDERED:
ORDERED this day of ______________, 2007
THE
HONORABLE CHIEF JUDGE JAMES F. HOLDERMAN
United
States District Court Judge
Northern
District of Illinois
THE PARTIES CONSENT TO THE ENTRY OF THIS
CONSENT DECREE AS INDICATED BY THE SIGNATURES OF COUNSEL APPEARING ON THE
FOLLOWING PAGES:
FOR PLAINTIFF UNITED STATES OF AMERICA:
PATRICK J. FITZGERALD
United States Attorney General
_________________________
JOAN LASER
Assistant U.S. Attorney
Northern District of Illinois
Chicago, IL
Tel: (413)785-0235
Facsimile: (413)785-0394
|
_________________________
WAN J. KIM
Attorney Assistant
STEVEN H. ROSENBAUM
Chief
TIMOTHY J. MORAN
Deputy Chief
JOSEPH GAETA
Attorney
Civil Rights Division
Housing and Civil Enforcement Section
Mailing address: 950 Pennsylvania Ave. NW
Washington, DC 20530-5998
Street address: 1800 G Street, NW, Ste. 7002
Washington, DC 20006
Tel: (202) 353-9062
Facsimile: (202) 514-1116 |
FOR INTERVENOR-PLAINTIFF HOPE FAIR HOUSING
CENTER
|
__________________________
Jeffrey Taren, Esq.
Kinoy, Taren and Geraghty
224 S Michigan Ave., # 300
Chicago, IL 60604 | |
FOR DEFENDANTS ARLINGTON PARK RACECOURSE, LLC
AND CHURCHILL DOWNS INCORPORATED:
Jay Stephen Dobrutsky
Burke, Warren, MacKay & Serritella, P.C.
22nd Floor
330 North Wabash Avenue
Chicago, Illinois 60611
Tel: (312) 840-7000
Facsimile: (312) 840-7900
