1. This
Consent Order is entered among the United States of America, the Rose Companies
and the Architectural Defendants,
(collectively referred to herein as "the Parties”) to resolve two lawsuits brought by the
United States to enforce the provisions of Title VIII of the Civil Rights Act
of 1968, as amended by the Fair Housing Amendments Act of 1988, ("Fair Housing
Act”), 42 U.S.C. §§ 3601-3619, and Title III of the Americans with Disabilities
Act ("ADA”), 42 U.S.C. §§ 12181-12189.
2. On
January 18, 2001, and September 3, 2002, the United States filed civil actions
in the United States District Courts for the Northern District of Indiana, Case
No. 3:01cv00040 (N.D. Ind.) ("Indiana Action”) and the Eastern District of
Michigan, Case No. 02-CV-73518 (E.D. Mich.) ("Michigan Action”), respectively
(hereinafter "the civil actions” or "these actions”). These actions, as amended, allege that the Rose Companies and the
Architectural Defendants discriminated against persons with disabilities by
failing to design and construct covered multifamily dwellings and places of
public accommodation in accordance with the features of accessible and
adaptable design and construction required by subsection 804(f)(3)(C) of the
Fair Housing Act, 42 U.S.C. § 3604(f)(3)(C), and the Americans with
Disabilities Act, 42 U.S.C. § 12183(a)(1).
The United States also alleges in the Michigan Action that certain of
the Rose Companies: discriminated in the rental of, or otherwise made
unavailable or denied, dwellings to persons because of handicap, in violation
of 42 U.S.C. § 3604(f)(1); discriminated against persons in the terms,
conditions, or privileges of rental of a dwelling, or in the provision of
services or facilities in connection with the rental of a dwelling, because of
handicap, in violation of 42 U.S.C. § 3604(f)(2); denied reasonable
accommodations to persons with disabilities in violation of 42 U.S.C. §
3604(f)(3)(B); and misrepresented the availability of dwellings for rental by
persons with disabilities, in violation of 42 U.S.C. § 3604(d). The United States alleges that the above
conduct on the part of the Defendants constituted a pattern or practice of
discrimination against persons with disabilities and a denial of rights to a
group of persons with disabilities that raised an issue of general public
importance.
3. On
February 21, 2003, the United States District Court for the Eastern District of
Michigan enjoined certain of the Rose Companies from proceeding with the
construction and occupancy of nineteen (19) apartment buildings at two (2)
complexes where the buildings, as designed, would have had descending steps to
the entrances to the covered dwelling units directly across from the parking
lot and the only accessible way into the covered dwelling units would have been
by way of a walk around the opposite side of the building and through the patio
doors. See United States v. Edward
Rose & Sons, 246 F. Supp. 2d 744 (E.D. Mich. 2003).
4. On
August 25, 2004, the United States Court of Appeals for the Sixth Circuit
affirmed the district court’s entry of a preliminary injunction. See United States v. Edward Rose & Sons,
384 F.3d 258 (6th Cir. 2004). The Court
of Appeals denied the Rose Companies’ Petition for Rehearing En Banc on
December 7, 2004.
5. The
Defendants have answered the complaints in the Michigan Action and the Indiana
Action denying any and all alleged violations of either the Fair Housing Act,
42 U.S.C. §§ 3601 et seq. or the Americans with Disabilities Act, 42 U.S.C. §§
12181 et seq. The Defendants continue
to deny any and all liability in these actions and nothing in this Consent
Order shall be construed as an admission of liability by any of the Defendants.
6. In
an effort to avoid further contested litigation, the Parties agree that the
controversy should be resolved without further proceedings and without an
evidentiary hearing or findings of fact.
This Consent Order constitutes a full and final resolution of all claims
of violation of the Fair Housing Act and the ADA that the United States
alleged, or could have alleged, in these actions relating to disabilities,
mobility impairments, and/or handicaps arising out of the Defendants’ design,
construction, ownership and/or operation of the Subject Properties
(collectively referred to as the "Claims”).
The United States therefore irrevocably waives any claims it may have to
pursue relief against the Defendants, collectively and individually, and each
of their officers, employees, agents, directors, members, managers,
shareholders, parents, subsidiaries, successors and assigns, and all other
persons in active concert or participation with them, relating to the Claims,
except for matters referred by HUD pursuant to 42 U.S.C. § 3612(o) and
proceedings to enforce the provisions of this Consent Order. This Paragraph shall survive the expiration
of this Consent Order.
7. Contemporaneously
with the submission of this Consent Order, the Parties have stipulated to the
transfer, pursuant to 28 U.S.C. §1404(a), of the United States’ claims against
the Rose Companies and the Architectural Defendants (except for claims against
Gary Weaver) in the Indiana Action to this Court. The Parties agree that this Court now has jurisdiction over the
subject matter of both the Indiana and Michigan Actions pursuant to 28 U.S.C.
§§ 1404(a) and 1345, and 42 U.S.C. § 3614(a).
8. The
complaints in these cases (except for claims against Gary Weaver) are hereby
dismissed with prejudice. This Court,
however, shall retain jurisdiction to enforce the terms of this Consent Order
for the term of this Consent Order. The
provisions of this Consent Order shall supersede the terms of the Preliminary
Injunction entered in the Michigan Action and, upon entry of this Order, such
injunction is no longer in effect.
9. Accordingly,
as indicated by the signatures appearing below, the Parties agree to and
request entry of this Consent Order.
It is hereby
ADJUDGED, ORDERED and DECREED that:
II. GENERAL INJUNCTION
10. Defendants,
and each of their officers, employees, agents, and all other persons in active
concert or participation with them are enjoined from discriminating on the
basis of disability, as prohibited by the Fair Housing Act, 42 U.S.C.
§3604(f)(1)-(3), and the ADA, 42 U.S.C. §§ 12182(a) and 12183(a)(1).
III. FUTURE CONSTRUCTION
11. Defendants
shall take the actions set forth herein to ensure that that all future design
and/or construction of covered multifamily dwellings by the Rose Companies
and/or the Architectural Defendants shall comply with the design and
construction requirements of the Fair Housing Act, 42 U.S.C. § 3604(f)(1)-(3),
and, where applicable, the ADA, 42 U.S.C. §§ 12182(a) and 12183(a)(1).
12. The
Rose Companies will design and construct the buildings that were subject to the
preliminary injunction entered in the Michigan Action (Buildings 7-10 at Westlake Apartments and Building 9-15 at Lake
Pointe Apartments) with accessible at-grade entrances facing the parking lot of
the buildings, except for Lake Pointe Buildings 4, 5, 6, 7 and 8 and Westlake
Apartments Buildings 11, 12 and 13, which shall be constructed in accordance
with Appendix C-18 and Appendix C-41, respectively.
13. The
Rose Companies will design and construct all other future covered multifamily
dwelling units with accessible at-grade entrances facing the primary parking
lot of the buildings, except where future site conditions render such
construction impractical (see 56 Fed. Reg. 9503-9504 (Mar. 6, 1991)), provided
that the Rose Companies will inform the United States where they intend to
claim site impracticality within 30 days following the site impracticality
analysis and prior to start of construction, and will provide the United States
with the non-privileged documentation supporting their analysis.
14. The
Rose Companies will maintain, and provide to the United States the following
information and statements regarding any covered multifamily dwellings intended
to be developed, built, and/or designed, in whole or in part, by any of them or
by any entities in which they have a position of control as an officer,
director, member, manager, or have a ten percent (10%) or larger ownership
share. The Rose Companies shall provide
the following information/statements pursuant to the reporting provisions of
Section XII(C) of this Consent Order:
(a) The name and address of the project;
(b) A description of the project and the individual
units;
(c) The name, address, and telephone number of the
architect(s) involved with the project.
In addition, the Rose Companies
shall obtain a statement from the architect(s) involved with the project
acknowledging and describing his/her knowledge of and training in the
requirements of the Fair Housing Act and the ADA in the field of accessible
building and housing design and stating that he/she has reviewed the
architectural plans for the project and that to the best of his/her
professional judgment, knowledge and belief, the design specifications therein
comply with the requirements of the Fair Housing Act, and, where applicable,
the ADA and the ADA Standards for Accessible Design. The Rose Companies can satisfy this requirement by including such
a statement in the contract with the architect, and by requiring that the
architect execute that contract.
15. If
the Architectural Defendants prepare any architectural plans, drawings or
blueprints for covered multifamily housing, they shall include on such plans,
drawings or blueprints a statement that to the best of his/her professional
judgment, knowledge and belief the design specifications therein comply with
the Fair Housing Act, and, where applicable, the ADA and the ADA Standards for
Accessible Design. The Architectural
Defendants shall, upon request, provide to the United States a list of all such
multifamily housing that they have designed during the term of this Consent
Order.
IV. MODIFICATIONS AND OTHER ACTIONS AT
THE
SUBJECT PROPERTIES
16. While
denying liability, the Rose Companies agree to complete the actions described
in this Section IV for
buildings located within the Subject Properties that are covered by the Fair
Housing Act or the ADA:
A. Public and Common Use
Areas/Special Requests
17. In
accordance with the schedule set forth in Appendix B, the Rose Companies shall
complete the modifications to the public and common use areas at the Subject
Properties as set forth in Appendix C (Appendices C-1 through C-41, Parts I, II
and III).
18. Upon
the request of a tenant with a mobility impairment who lives in a Covered
Dwelling Unit at one of the Subject Properties and who uses his or her patio
door as the primary accessible entrance, the Rose Companies will replace the
sliding glass door with a swinging door at no expense to the tenant. The Rose Companies will install the swinging
door as promptly as is practical, but in any event no later than thirty (30)
days after receipt of such a request.
19. For
those buildings covered by the FHA at the Subject Properties where the entrance
closest to the parking lot can be accessed only by going down steps and the
patio door is at grade, the Rose Companies and/or their employees, agents,
contractors, or other persons in active concert or participation with them will
clear snow and/or ice from the routes to the patios on the same schedule as the
routes to the parking-lot-side entrances, with priority given to tenants with
mobility impairments who use their patio door as their primary entrance.
20. In
addition to the van-accessible parking spaces for properties identified in
Appendices C-1 through C-41, and subject to the restrictions set forth therein,
upon the request of a tenant with a
mobility impairment living in a Covered Dwelling Unit at one of the Subject
Properties who uses his or her patio door as the primary accessible entrance,
the Rose Companies will provide a reserved van-accessible parking space at no
expense to the tenant; provided, however, that (a) the tenant has a handicapped
or disabled parking permit; (b) the Rose Companies are not required to
construct any additional ramps or curb-cuts in granting the request; and (c)
the addition of the van-accessible parking space will not cause the Rose
Companies to be in violation of local or regional ordinances or other laws
mandating a minimum number of parking spaces; provided, however that the Rose
Companies advise counsel for the United States, in writing, of such
instances. The Rose Companies will
provide the van-accessible parking space as promptly as is practical, and, in
any event, will provide the reserved parking space to the tenant no later than
thirty (30) days of receipt of such a request.
21. Upon
request of a tenant with a mobility impairment living in a Covered Dwelling
Unit at one of the Subject Properties who wishes to lease a carport space, the
Rose Companies will provide two carport spaces for the same cost as a single
carport space so that the tenant has an accessible parking space and access
aisle, provided that the building in which the tenant lives has carports
available and that the tenant has a handicapped or disabled parking
permit. If two carport spaces are not
available at the building in which the tenant lives, the Rose Companies will
provide two carport spaces for the tenant at the closest available building
location for the same cost as a single carport space. If two spaces are not available at the property, the Rose
Companies will provide such spaces for the tenant as soon as two carport spaces
become available. In such
circumstances, the Rose Companies shall make reasonable efforts to allocate
available carport spaces so that two are adjacent to each other and, in any
event, will make two carport spaces available to the tenant as soon as they
become available at one building. In no
circumstance will a tenant with a mobility impairment living in a Covered
Dwelling Unit at one of the Subject Properties lose his or her place on a
carport waiting list.
22. For
Covered Dwelling Units at the Subject Properties, the Rose Companies will
provide accessible trash dumpsters on an accessible route, or, where such
dumpsters are not provided or where the parking lot side entrance is not at
grade, will, upon request of a tenant with a mobility impairment living in a
Covered Dwelling Unit, pick up that tenant’s trash from the unit at reasonable
intervals at no expense to the tenant.
23. Upon
request of a tenant with a mobility impairment living in a Covered Dwelling
Unit at one of the Subject Properties who uses his or her patio door as the
primary accessible entrance, the Rose Companies will, at their option and
subject to the approval of the U.S. Postal Service, either (i) install a
mailbox at an accessible location and make alternate delivery arrangements with
the U.S. Postal Service; or (ii) install a mail slot with a basket in the
entrance door. The United States and
the Rose Companies anticipate that the U.S. Postal Service will approve one of
the two options listed above. However,
in the event that the U.S. Postal Service does not approve either of the
options listed above, the United States and the Rose Companies will endeavor in
good faith to find a mutually agreeable alternate solution. If the United States and the Rose Companies
cannot reach an agreement, the matter will be resolved in accordance with the
dispute resolution procedure set forth in Section XIII(C) of this Consent
Order.
24. To
the extent that the Rose Companies maintain one or more model units that is
representative of a unit type that is offered on the ground floor at any of the
Subject Properties, at least one model unit for that unit type shall be on the
ground floor at each Subject Property.
B. Retrofits to Interiors of Covered
Dwelling Units at the Subject Properties
25. In
accordance with the schedule set forth in Appendix B, the Rose Companies shall
commence and finish the retrofits to the interior of the Covered Dwelling Units
at the Subject Properties that are set forth in Appendices C-1 through C-41. In connection therewith, the Rose Companies
shall take each of the following actions:
(a) Within
ninety (90) days after the entry of this Consent Order, the Rose Companies
shall send or deliver written notice (the template for which is set forth in
Appendix F) to current tenants living in Covered Dwelling Units that require
retrofits according to Appendices C-1 through C-41. If the tenant chooses to have any of the retrofits made, he/she
must agree to have all the required retrofits performed at that time. The retrofits shall be completed as promptly
as practical, but in any event, not later than sixty (60) days following the
receipt of the written request, subject to documented circumstances outside the
control of the Rose Companies.
(b) The
Rose Companies shall include a provision in all new leases or lease renewals
specifying that the present owner of the Subject Properties will have the right
to modify the unit to bring it into compliance with the provisions of this
Consent Order.
(c) In
the event that a tenant living in a Covered Dwelling Unit that is scheduled to
undergo a modification incurs undue inconvenience or hardship (defined as a
required dislocation from the unit for more than 24 hours consecutively), the
Rose Companies shall pay such tenant the applicable government per diem rate
for food and lodging for the local area for each day of undue inconvenience or
hardship. Such payment shall be made
prior to the commencement of any modification work on the tenant’s unit, so
that the tenant can use the money to obtain alternative living accommodations
while dislocated. In the alternative,
at their option, the Rose Companies may provide the tenant with a furnished
guest suite at the Subject Property at which the tenant resides at no cost to
the tenant.
(d) The
Rose Companies may not charge any additional rent, deposit or other fee for a
unit solely because the modifications in Appendices C-1 through C-41 or the
accessibility enhancements specified in Sections IV(C) or IV(D) are
contemplated or completed.
26. Upon
request of a tenant with a mobility impairment who lives in a Covered Dwelling
Unit at a Subject Property, who wishes to have grab bars installed in his or
her unit, the Rose Companies will install grab bars either (i) at locations set
forth in the Fair Housing Act Accessibility Guidelines, 56 Fed. Reg. 9511; or
(ii) in an alternate location if so specified in writing by the tenant making
the request for grab bars. The Rose
Companies will install such grab bars as promptly as is practical, but in any
event no later than thirty (30) days after receipt of such a request. In bathrooms where the toilet is more than
20 inches from the side wall, the Rose Companies will also, on request, add
blocking to decrease the distance between the toilet and the mounted grab bar.
C. Required Additional Accessibility
Features in Specified Covered Dwelling Units
27. In
accordance with the limitations set forth in Appendices C-1 through C-41 and
the schedules set forth in Appendix B, the Rose Companies shall complete the
modifications of the specified ground floor units at the Subject Properties so
that they contain the additional accessible features listed below. The Rose Companies, in their sole
discretion, shall select which units are to be modified for each phase of the
retrofit schedule in Appendix B, except that none of the selected units shall
be those that are already designated as Michigan PH units. The additional accessible features required
in each specified unit (unless otherwise specified in the relevant appendix) are
identified below. Where the accessibility
enhancement can be achieved in alternative ways (i.e. subparagraphs (a), (b), (g), and (l) below), the Rose
Companies, in their sole discretion, shall select the alternative to be used in
each unit.
(a) Either
removable cabinetry under the kitchen sink and/or bathroom lavatory or
installation of replacement fixtures or lavatories, such that a person using a
wheelchair can make a full forward approach to the sink or lavatory, or provide
a 30 by 48 inch clear floor space centered on the sink or lavatory for a
parallel approach. (In the case of units with two bathrooms, one bathroom shall
be modified or constructed to meet the modifications set forth herein);
(b) Either
removable oven units such that a person using a wheelchair can make a full
forward approach to the cook top plus the provision of a separate oven
appliance (e.g., convection oven) or the alternative redesign of kitchen
cabinetry placement or removable cabinetry to allow a parallel approach to the
range;
(c) At
least one Specification "B” Accessible Bathroom complying with Fair Housing Act
Guidelines Req. 7(2)(b) will be provided;
(d) The
installation of lever door hardware throughout the unit;
(e) The
installation of lever controls on faucets;
(f) Cooktop
and oven controls located at the front of the range;
(g) The
installation of a wand shower head on flexible tube or an adjustable height
shower head;
(h) The
installation of a self-cleaning oven;
(i) The
creation of a 30 inch kitchen work space and lowering counters at sink and work
space to 34 inches above finished floor, except for "U-shaped” and "L-shaped
kitchens”;
(j) The
installation of anti-scald valves in shower;
(k) The
installation of U-shaped pulls near hinges on exterior of door at parking lot
side of building, except where doors have self-closing hinges;
(l) Replace
existing thermostats with electronic thermostats with large numbers and push
buttons to adjust and/or remote thermostat control;
(m) Install
doors that are at least 36 inches wide or, where any existing Covered Dwelling
Unit is being modified, off-set or swing-clear hinges on one or more doors in
the units to allow more clear width (beyond the nominal 32 inches that is
provided in the absence of the swing-clear or off-set hinges) for the passage
of wide wheelchairs or for other persons with mobility impairments who require
additional maneuvering space based upon his/her mobility impairment;
(n) Replace
electric flip switch with rocker switch operable with push;
(o) Install
strobe light alarms for smoke detector and visual doorbell indicator (where a
doorbell exists);
(p) Install
additional lower hanging rods and shelves in the closet;
(q) Install
full height mirror in bathroom or bedroom;
(r) Install
pull-out shelves in the cabinets and/or closets; and
(s) Provide
a refrigerator/freezer that complies with 1986 ANSI 4.32.5.8.
28. As
the modifications to the units described in Paragraph 27, above, are completed,
the units shall be made available to current, future and prospective tenants on
a first-come, first-served basis. The
Rose Companies shall notify current tenants of the availability of these units
by sending written information (the template for which is set forth in Appendix
G) to current tenants living in a Covered Dwelling Unit at one of the Subject
Properties. If a tenant with a mobility
impairment expresses an interest in moving into a unit with additional
accessibility features identified in Paragraph 27, above, the Rose Companies
will pay any and all reasonable out-of-pocket moving costs associated with or
provide any and all moving services for that tenant’s move from a Covered
Dwelling Unit at one of the Subject Properties to a unit with additional
accessibility features located within the same property. The Rose Companies shall notify future and
prospective tenants of the availability of these units by providing written
information (the template for which is set forth in Appendix H) to all
prospective tenants inquiring about moving into one of the Subject Properties
if the prospective tenant asks for information about the dwelling unit to be
mailed to him or her, or if he or she appears in person at the Subject
Property.
D. "On
Request” Accessibility Features
29. The
Rose Companies shall make, at their expense, any of the following accessibility
enhancements that are requested by a current, prospective or future tenant with
a mobility impairment living in, or moving into, a Covered Dwelling Unit at one
of the Subject Properties, subject to the limitations set forth in the relevant
appendix and subject to the procedures set forth in Paragraphs 30-31,
below. Nothing in this Section shall be
interpreted as requiring the Rose Companies to make such accessibility
enhancements for any prospective tenants unless and until that prospective
tenant signs a lease with the Rose Companies.
(a) Removable
cabinetry in kitchens and/or bathrooms (and finish flooring and insulate
pipes), or replacement of fixtures or lavatories, to increase maneuvering space
and allow a full forward approach or a parallel approach to kitchen sink,
range, oven, or bathroom lavatory;
(b) Provide
range with cook top and oven controls located at front of the range;
(c) Install
roll-in shower;
(d) Install
a taller accessible toilet or a raised toilet seat;
(e) Replace
knob hardware with levered hardware;
(f) Install
lever controls on faucets;
(g) Replace
shower head with wand shower head on flex tube or adjustable shower head;
(h) Install
anti-scald valves in shower;
(i) Install
U-shaped pulls near hinges on exterior of door at parking side of building,
except where doors have self-closing hinges;
(j) Replace
existing thermostats with electronic thermostats with large numbers and push
buttons to adjust and/or remote thermostat control;
(k) Install
at parking side entrance door an additional "fish-eye peep hole” or "wide view
peephole” at tenant’s preferred height;
(l) Install
off-set or swing clear door hinges and/or remove trim or molding to increase
clear width at doors or doorways for doors with less than a nominal 32-inch
clearance, or to allow more clear width (beyond the nominal 32 inches that is
provided in the absence of the swing-clear or off-set hinges) for the passage
of wide wheelchairs or for other persons with mobility impairments who require
additional maneuvering space based upon his/her mobility impairment;
(m) Replace
electric flip switch with rocker switch operable with push or with a toggle
switch;
(n) Install
strobe light alarms for smoke detector and visual doorbell indicator (where a
doorbell exists);
(o) Install
additional lower hanging rods and shelves in the closet;
(p) Install
full height mirror in bathroom or bedroom;
(q) Install
pull-out shelves in the cabinets and/or closets;
(r) Pull
out refrigerator from the wall and place it facing forward to improve access or
install smaller refrigerator to increase clearance between the refrigerator and
the opposing wall;
(s) Install
a self-cleaning oven;
(t) Install
URL extenders to improve access to outlets;
(u) Within
the existing space for laundry facilities, rearrange or move washer/dryer to
increase access through laundry/utility room and access to washer/dryer;
provided, however, that it does not require the relocation of existing
infrastructure, installation of new plumbing supplies, drains, electrical
wiring, exhaust venting and/or compromise any other code requirements for such
installations, although it may require replacing or updating existing hoses or
other minor connections, to facilitate moving the laundry equipment within the
existing space;
(v) Install
grab bars surrounding the bathing and toilet areas.
Where the accessibility enhancements
can be achieved in alternative ways (i.e.,
(a), (d), (g), (j), (l), (m), and (r)), the Rose Companies, in their sole
discretion, shall select the alternative to be used in each unit, unless a
particular alternative or combination of alternatives is reasonably necessary
to accommodate the needs of the tenant based upon his/her mobility impairment.
30. The
Rose Companies shall notify current tenants of the availability of these accessibility
enhancements by sending written information (the template for which is set
forth in Appendix I) to current tenants living in a Covered Dwelling Unit at
one of the Subject Properties. The Rose
Companies shall notify future and prospective tenants of the availability of
these accessibility enhancements by providing written information (the template
for which is set forth in Appendix H) to all prospective tenants inquiring
about moving into one of the Subject Properties if the prospective tenant asks
for information about the dwelling unit to be mailed to him or her, or if he or
she appears in person at the Subject Property.
31. Provided
the individual qualifies for one or more enhancements based upon that
individual’s mobility impairment or other relevant disability, the Rose
Companies will grant the request for enhancement(s). The "on request” enhancements described in Paragraph 29 will be
completed as soon as is practical, but in any event, within sixty (60) days of
the date the request is received in writing, subject to documented
circumstances outside the control of the Rose Companies.
E. Notification to Current Tenants
32. Within
ninety (90) days after the entry of this Consent Order, the Rose Companies will
provide the written information described in Paragraph 30, above, to current
tenants in Covered Dwelling Units.
F. Written Confirmation of Requests
for Accessibility Enhancement Features
33. The Rose
Companies may require the current or prospective tenant to make or confirm requests
for the accessibility enhancement features described in Paragraph Nos. 18, 19,
20, 21, 22, 23, 26 and 29, in writing using a form appropriate for each
complex, the template for which is attached hereto as Appendix J. The Rose Companies may require the current or
prospective tenant to submit appropriate information and documentation under
circumstances and in a manner that is consistent with paragraphs 12-13 of the
guidance set forth in the May 14, 2004 Joint Statement of the Department of
Housing and Urban Development and the Department of Justice regarding
Reasonable Accommodations under the Fair Housing Act.
V. INSPECTION
AND CERTIFICATION OF COMPLETED RETROFITS
34. The
Rose Companies shall arrange to have neutral inspectors ("Inspectors”) approved
by the United States, whose approval shall not be withheld unreasonably
(provided that Inspectors may be removed from future inspections upon mutual
agreement of the Rose Companies and the United States), to conduct on-site
inspections of the modifications that have been performed under this Consent
Order to determine if they have been completed in accordance with the
specifications set forth in Appendices C-1 through C-41. The inspections shall take place within
thirty (30) days of the date that the Rose Companies advise the United States
that they have completed one or more of the required retrofits or
modifications. The inspections shall be
carried out in accordance with a written protocol separately agreed to by the
Rose Companies and the United States (the "Inspection Protocol”) which shall be
provided to the Inspector.
(a) The
Inspectors shall set out the results of each inspection, including deficits, if
any, in writing and shall send that report to counsel for the United States and
the Rose Companies.
(b) Subsequent
inspections will occur if the Inspector determines, in good faith, that not all
of the required modifications have been made as specified in Appendices C-1
through C-41. The Rose Companies shall
correct any deficiencies within a reasonable period of time as determined by
the Inspector, and shall pay for another inspection by the same Inspector to
certify that the deficiencies have been corrected. This process shall continue until the Inspector certifies that
all of the required modifications have been made. Upon certification by the Inspector that a modification is
satisfactory, the Rose Companies shall be released from any further obligations
under this Consent Order with respect to that modification. The Rose Companies shall pay all of the
Inspectors’ costs and fees associated with these inspections, and such payments
shall be made without regard to the Inspectors’ findings. Any disputes between the United States and
the Rose Companies as to the Inspectors’ findings and what corrective actions
are necessary shall be subject to the dispute resolution procedure set forth in
Section XIII(C) below.
(c) Unless
otherwise agreed between the Rose Companies and the United States, the Rose
Companies shall give the United States at least three (3) weeks notice of
inspections in the first year and two (2) weeks notice thereafter, of the
inspections described in this Section and shall give the United States an
opportunity to have a representative present for such inspections.
VI. SURVEYING OF COMPLEXES AND BUILDINGS NOT
INSPECTED BY THE UNITED
STATES
35. The
United States did not inspect seven (7) of the forty-nine (49) Subject
Properties. Additionally, the Rose Companies have constructed new buildings at
certain of the remaining Subject Properties since the United States’
inspection. The Subject Properties or
portions thereof that the United States has not inspected are listed in
Appendix E. The surveys shall be
carried out in accordance with the provisions of this Section and the Inspection
Protocol referenced in Section V.
36. The
Rose Companies agree to take the following actions with regard to the Subject
Properties or portions thereof listed in Appendix E:
(a) Arrange
to have one or more qualified architectural firms ("Surveyors”), approved by
the United States, whose approval shall not be withheld unreasonably, conduct
on-site surveys to determine whether the Subject Properties or portions thereof
listed in Appendix E comply with the Fair Housing Act, and, where applicable, the
ADA, within twelve (12) months of the date of entry of this Consent Order;
(b) The
Surveyor will prepare a report specifying the scope, methodology and results of
the surveys, as well as recommended retrofits deemed necessary by the Surveyor
for compliance with the accessibility provisions of the Fair Housing Act, and,
where applicable, the ADA (hereinafter the "Report(s)”);
(c) The
Surveyor will send the Report(s) to counsel for the United States and the Rose
Companies as soon as practical following the survey but in any event no later
than ninety (90) days from the date of the survey;
(d) The
United States and the Rose Companies shall have sixty (60) days following
receipt of a Surveyor’s Report to reach agreement on the retrofits to be
performed at each surveyed property and the time frames for completing the
retrofits. The retrofits made shall be
consistent with those made in Appendices C-1 through C-41. If the United States and the Rose Companies
cannot reach agreement on the retrofits to be performed, the matter shall be
resolved in accordance with the dispute resolution procedure set forth in
Section XIII(C) below;
(e) The
procedure for inspection and certification of the retrofits performed and the
procedure for compensating tenants dislocated by such retrofits to their units
will be consistent with those set forth in Sections IV and V of this Consent
Order;
(f) Upon
certification by an Inspector that a required modification has been
satisfactorily completed, the Rose Companies shall be released from any further
obligations under this Consent Order with respect to that modification; and
(g) For
those buildings listed in Appendix E that the Rose Companies have any ownership
or management interest in at the time any agreed retrofits are made, they may
not charge any additional rent, deposit, or other fee for a unit in which
retrofits are implemented solely because of the contemplated or completed
retrofits.
VII. SALE OR TRANSFER OF OWNERSHIP
INTEREST
37. The
sale or transfer of ownership, in whole or in part, of any the Subject
Properties, shall not affect the Rose Companies’ continuing obligation to
modify the Subject Properties as specified in this Consent Order. Should the Rose Companies decide to sell or
transfer any ownership interest in any of the Subject Properties before
completion of the retrofits specified in this Consent Order with respect to the
property to be sold or transferred, the Rose Companies shall, at their option,
either (i) complete the retrofits (including the inspection procedure set forth
in Section V) for such property prior to completion of the sale or transfer; or
(ii) at least thirty (30) days prior to completion of the sale or transfer:
(a) provide
to each prospective buyer written notice that the Subject Properties are
subject to this Consent Order, including specifically the Rose Companies’
obligations to complete required retrofit work and to allow inspections, along
with a copy of this Consent Order; and
(b) provide
the United States, by facsimile and first class U.S. mail, written notice of
its intent to sell or transfer ownership, along with a copy of the notice sent
to each buyer, and each buyer’s name, address, and telephone number.
VIII. SETTLEMENT
FUNDS FOR ALLEGED AGGRIEVED PERSONS
A. Establishment
of Settlement Fund
38. Within
thirty (30) days after the date of entry of this Consent Order, the Defendants
shall deposit in an interest-bearing escrow account administered by counsel for
the Rose Companies at Honigman Miller Schwartz and Cohn LLP, the total sum of
$950,000 for the purpose of paying settlement amounts to individuals alleged by
the United States to qualify as "aggrieved persons.” This money shall be referred to herein as "the Settlement Fund.” Any interest accruing in the Settlement Fund
shall become a part of the Settlement Fund and shall be utilized as set forth
in this Consent Order. Nothing in this
Consent Order, including the establishment of the Settlement Fund, shall be
construed as an admission of liability to any person or entity.
B. Notice to the Public of
Settlement Fund
39. Within
ninety (90) days following the entry of this Consent Order the Rose Companies
shall disseminate the notice attached hereto as Appendix K ("Notice”) in each
geographical rental market in which the Subject Properties are located. For each geographic rental market, the Rose
Companies shall disseminate the notice as follows:
a.
By sending the Notice, by first class mail,
to each current tenant who lives in a Covered Dwelling Unit at the Subject Properties. Within thirty (30) days of each such service
of the Notice, the Rose Companies shall provide to Counsel for the United
States proof that the Notice has been sent along with a list of the recipients. AND
b.
By doing at least one of the following, and
informing the United States in writing, of the dissemination in accordance with
the provisions set forth in Paragraph 54(d) below:
i.
Disseminate the Notice to disability
advocacy groups, selected by the Rose Companies and approved by the United
States (whose approval shall not be unreasonably withheld) operating in a
geographic rental market in which the Subject Property is located. The Rose Companies shall make reasonable
efforts to ensure that the Notices are distributed to each group’s entire
membership list in the rental market area and shall provide the necessary
copies, mailing costs, and other fees associated with such membership
dissemination. OR
ii. Publish the
Notice on three (3) occasions in the news section of the newspaper with the
largest circulation in the relevant geographic market area. The Notice shall be no smaller than three
columns by six inches. The publication
dates shall be separated from one another by at least twenty-one (21) days, and
at least two (2) of the publication dates shall be a Sunday. Within ten (10) days of each publication
date, the Rose Companies shall provide the newspaper containing the Notice to
counsel for the United States.
C. United States’ Efforts to Locate
Potential Aggrieved Persons
40. No
provision in this Consent Order shall be construed to preclude or in any way
limit any efforts the United States may make to locate aggrieved persons.
D. Identification of Aggrieved
Persons
41. Alleged
aggrieved persons shall have one (1) year after the date of entry of this
Consent Order to contact the United States in response to any Notice the person
received. Upon the Rose Companies’
request, the United States shall provide a copy of any responses it receives
pursuant to the Notice, together with any supporting documentation the
individual provides. The United States
shall investigate the claims of alleged aggrieved persons, and, within fifteen
(15) months after the date of entry of this Consent Order, shall make a preliminary
determination of which persons it recommends be allowed to participate in the
Settlement Fund and an appropriate amount that should be paid to each such
person from the Settlement Fund. The
United States will inform the Rose Companies, in writing, of its preliminary
determinations, together with a copy of a sworn declaration from each alleged
aggrieved person setting forth the factual basis of his or her claim. The Rose Companies shall have sixty (60)
days to review the preliminary determinations and the declarations and, if they
choose, provide to the United States any documents or information that they
believe should affect the claim.
E. Payments to Alleged Aggrieved
Persons
42. After
receiving and considering the Rose Companies’ documents and information, if
any, the United States shall submit its final recommendations to the Court for
approval, identifying the alleged aggrieved persons and an appropriate portion
of the Settlement Fund that should be paid to each person, together with a copy
of the declarations. The Rose Companies
may, likewise, submit any additional information they wish the Court to
consider in determining whether any person who responded to the Notice should
be permitted to participate in the Settlement Fund and the amount the alleged
aggrieved person should receive. Within
twenty-one (21) days after the entry of a final Order approving or changing the
United States’ proposed distribution of funds to alleged aggrieved persons,
counsel for the Rose Companies at Honigman Miller Schwartz and Cohn LLP shall
deliver to the United States checks payable to the alleged aggrieved persons in
the amounts approved. In no event shall
the aggregate of all such checks exceed the sum of the Settlement Fund,
including accrued interest. No alleged
aggrieved person shall be paid until s/he has executed and delivered to counsel
for the United States, the Rose Companies, and the Architectural Defendant for
the Subject Property a full release of the Rose Companies and the Architectural
Defendant for the Subject Property in the form attached hereto as Appendix L.
F. Remainder
43. In
the event that less than the total amount in the Settlement Fund, including
accrued interest, is distributed to alleged aggrieved persons, the Rose
Companies shall make a proposal to the Court regarding distribution of the
remainder of the fund for the purpose of providing housing for disabled persons
in areas where the Subject Properties are located. Once an Order concerning the proposed distribution of funds is entered,
the Rose Companies shall undertake to distribute the funds in a manner
consistent with the Order as soon as reasonably possible thereafter.
IX. CIVIL PENALTY
44. Without
admitting liability, the Defendants shall pay the total sum of $110,000 to the
United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C) and 42
U.S.C. § 12188(b)(2)(C)(i). Said sum
shall be paid within thirty (30) days after the date of entry of this Consent
Order by submitting a check made payable to the United States of America to
Counsel for the United States.
X. ACKNOWLEDGMENTS AND TRAINING
45. Within
one hundred eighty (180) days after the entry of this Order, the Rose Companies
and each of the Architectural Defendants shall provide a summary of this Order,
as set forth in Appendix M to all their managers and supervisors involved in
the design, construction or the rental of Covered Dwelling Units at the Subject
Properties, and secure a signed statement from each manager or supervisor
acknowledging that he or she has received, read and understands the summary of
this Order.
46. Within
ninety (90) days after the date he or she commences an agency or employment
with the Rose Companies and each of the Architectural Defendants, each new
manager or supervisor involved in the design, construction or with the rental
of Covered Dwelling Units at the Subject Properties shall be given a summary of
this Order, as approved by the Parties, and be required to sign a statement
acknowledging that he or she has received, read and understands the summary of
this Order.
47. Within
two hundred ten (210) days after the entry of this Order, the Rose Companies
and each of the Architectural Defendants shall provide fair housing training,
with a focus on disability issues, to all their managers and supervisors
involved in the design, construction or rental of Covered Dwelling Units at the
Subject Properties. The training shall
be conducted by a qualified person or organization approved by the United
States. The Rose Companies and the
Architectural Defendants shall pay all fair housing training costs. Within two hundred forty (240) days after
the entry of this Order, the Rose Companies and each of the Architectural
Defendants shall secure and deliver to counsel for the United States a written
certification of each manager’s and supervisor’s attendance at the fair housing
training.
48. Each
new manager or supervisor involved in the design or construction of covered
dwelling or the rental of Covered Dwelling Units at the Subject Properties
shall attend fair housing training, with a focus on disability issues within
ninety (90) days after the date he or she commences an agency or employment
relationship with the Rose Companies or any of Architectural Defendants, or as
soon thereafter as such training may be available. The Rose Companies and the Architectural Defendants shall pay all
fair housing training costs for new managers or supervisors.
49. Attached
at Appendix N is a list of positions/employees to which the provisions of
Paragraphs 45-48 shall apply.
XI. PUBLIC NOTICE OF NON-DISCRIMINATION
POLICY
50. Within
ten (10) days after the date of entry of this Consent Order, the Rose Companies
shall post and prominently display in the rental offices of all covered
multifamily dwellings owned and/or operated by them, including the Subject
Properties, a sign no smaller than 10 by 14 inches indicating that all
dwellings are available for rental on a nondiscriminatory basis. A poster that comports with 24 C.F.R. Part
110 will satisfy this requirement.
51. In
all future advertising in newspapers and on pamphlets, brochures and other
promotional literature regarding any existing or any new covered multifamily
dwellings that the Rose Companies may develop or construct, the Rose Companies
shall place, in a conspicuous location, a statement that the dwelling units
include features for persons with disabilities required by the federal Fair
Housing Act or, if appropriate to the size of the advertising, the universal
symbol of accessibility.
XII. REPORTING AND DOCUMENT RETENTION
REQUIREMENTS
A. Complaints
52. The
Rose Companies shall advise the United States in writing within fifteen (15)
days after receipt of any written fair housing complaint (whether filed
administratively with HUD or another governmental agency or in court or
submitted in writing to the Rose Companies) against any property owned or
managed, or against any employee or agent of the Rose Companies working at or
for any such property, regarding discrimination on the basis of disability in
housing. Upon reasonable notice, the
Rose Companies shall also provide the United States with all non-privileged
information it may request concerning any such complaint. The Rose Companies shall also advise counsel
for the United States, in writing, within fifteen (15) days after the
resolution of any complaint.
B. Records
53. The
Defendants shall preserve all records related to the inspections, modifications
(including requests for additional accessibility features in specified units,
pursuant to IV(C) of this Consent Order, or "on request” accessibility
enhancements, and responses thereto, pursuant to Section IV(D) of this Consent
Order, or where required by Appendices C1-C41), acknowledgments, and training
ordered by this Consent Order for all covered multifamily dwellings designed,
constructed, owned, operated, or acquired by them, including the Subject
Properties. Upon reasonable notice to
Defendants and their attorneys, representatives of the United States shall be
permitted to inspect and copy any non-privileged records of Defendants related
to this Consent Order.
C. Reporting
54. Within
six (6) months following the date of entry of this Consent Order, where
applicable, the Defendants shall serve upon counsel for the United States an
initial report containing:
(a) Copies
of the acknowledgment forms signed by any and all employees and agents pursuant
to Section X of this Consent Order;
(b) Copies
of certification of attendance for fair housing educational programs pursuant
to Section X of this Consent Order (to
the extent such training has been completed); and
(c) Information
and/or statements related to current construction pursuant to Section III of
this Consent Order
(d) Copies
of all Notices disseminated pursuant to Section VIII(B) of this Consent Order.
55. Thereafter,
the Defendants shall, where applicable, on the anniversary of the date of entry
of this Consent Order, except for the final report, which will be provided
thirty (30) days before the five (5) year anniversary, submit to the United
States a report containing:
(a) Copies
of the acknowledgment forms signed by any and all new employees and agents
pursuant to Section X of this Consent Order;
(b) Copies
of certification of attendance for fair housing educational programs for any and
all new employees and agents pursuant to Section X of this Consent Order;
(c) Information
and/or statements related to current construction pursuant to Section III of
this Consent Order.
XIII. MISCELLANEOUS
A. Duration and Scope of Consent Order
56. This
Consent Order shall remain in effect for five (5) years after the date of its
entry.
57.
Except as otherwise expressly stated in Paragraph 6, no obligations set forth
in this Consent Order shall extend beyond the date that the Consent Order
ceases to be effective. The Rose
Companies, however, shall be required to comply with any requests made pursuant
to Paragraphs 18, 20, 21, 23, 26 and 29, or pursuant to one of the "on request”
items in Appendices C(1) to C(41), that are submitted to them prior to the date
that the Consent Order ceases to be effective even if the modifications
requested have not been completed by such date.
B. Retained
Jurisdiction to Enforce Consent Order
58. This
Court shall retain jurisdiction for the duration of this Consent Order to
enforce the terms of this Order in accordance with Paragraphs 59 and 60
below. Any party may move the Court to
extend the duration of this Order in the interests of justice.
C. Dispute Resolution
59. The
Parties shall endeavor in good faith to resolve informally any differences
regarding interpretation of and compliance with this Consent Order prior to
bringing such matters to the Court for resolution. In the event the Parties cannot resolve their differences
informally, any party may move the Court for an order compelling compliance
with the Consent Order and for attorney's fees and costs. Any such motion shall be titled "Motion
to Compel Performance Under Consent Order." Nothing in this Paragraph shall prevent a party, in appropriate
circumstances and for good cause shown, from moving the Court to impose any
other remedy authorized by law or equity to enforce the provisions of this
Consent Order.
60. Pursuant
to and subject to the provisions of Fed. R. Civ. P. 73, 28 U.S.C. § 636(c), and
Local Rule 73.1, the Court hereby refers all matters and proceedings regarding
enforcement of this Consent Order to Magistrate Judge Donald A. Scheer. An executed Notice of Consent to have the
Magistrate Judge conduct all proceedings is attached hereto as Appendix O. In the event that Magistrate Scheer is
unable to perform the duties referred under this Paragraph, the parties consent
to, and the Court shall refer all matters and proceedings regarding enforcement
of this Consent Order to another Magistrate Judge to be selected by the random
selection process established by the United States District Court for the
Eastern District of Michigan.
D. Time
for Performance
61. Any
time limits for performance imposed by this Consent Order may be extended by
the mutual written agreement of the United States and the relevant
Defendants. Any party may move the
Court to extend the time limits for performance in the interests of justice.
E. Costs
of Litigation
62. Each
party to these actions will bear its own costs and attorneys’ fees associated
with this litigation.
F. Limitation of Liability
63. Nothing
in this Consent Order shall be read as an admission of liability by the
Defendants under the Fair Housing Act or the ADA.
G. Notice
64. Unless
otherwise specified in this Consent Order, all documents or other
communications required by this Consent Order to be sent to the United States
or counsel for the United States shall be sent via first class U.S. mail,
addressed as follows: 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. 175-37-302, except
that notice of inspections pursuant to Sections V and VI shall also be sent by
fax or email to counsel of record for the United States.
65. Unless
otherwise specified in this Consent Order, and until further notice, all
documents or other communications required by this Consent Order to be sent to
the Rose Companies or counsel for the Rose Companies shall be sent via first
class U.S. mail to: (a) Patrick Duerr, Honigman Miller Schwartz and Cohn LLP,
2290 First National Building, 660 Woodward Avenue, Detroit, MI 48226 and (b)
John O'Hara, 30057 Orchard Lake Road, Suite 100, Farmington Hills, MI 48334.
H. Return
of Confidential Information
66. In
accordance with the Amended Protective Order Related to Tenant Information,
within six (6) months following the entry of the Court Order distributing
Settlement Funds in accordance with Section VIII(E), above, all Parties shall
either return to the Rose Companies or destroy or otherwise dispose of all
confidential tenant information as well as any copies, compilations, or
summaries of such confidential information ("Confidential Tenant Information”). Any party electing to destroy or otherwise
dispose of Confidential Tenant Information shall provide certification to the
Rose Companies that such destruction is complete within thirty (30) days of the
date of destruction.
67. In
accordance with the Protective Order Related to Financial Information, within
six (6) months of the date of entry of this Consent Order all confidential
financial information produced by the Rose Companies to the United States shall
be returned to the Rose Companies, by forwarding same to general counsel for
Rose, John O’Hara, 30057 Orchard Lake Road, Suite 100, Farmington Hills, MI
48334. In addition, the United States
shall destroy any copies, compilations, or summaries of such confidential
financial information, including, but not limited, to copies of the transcript
of the deposition of Rodney Lorne Crawford, C.P.A. and any confidential
financial information the United States provided to Mr. Crawford, and any
opinions or reports drafted by Mr. Crawford (whether in draft or final
form). The United States shall provide
certification to the Rose Companies that such destruction is complete within
(30) days of the date of destruction.
SO ORDERED this ___ day of
_______________, 2005.
_______________________________________
UNITED
STATES DISTRICT COURT JUDGE
The
undersigned hereby apply for and consent to the entry of this Consent Order:
For the United States
Bradley J. Schlozman
Acting
Assistant Attorney General
Civil
Rights Division
U.S.
Department of Justice
_________________________________
Steven
H. Rosenbaum, Chief
Timothy
J. Moran, Deputy Chief
Housing
and Civil Enforcement Section
950
Pennsylvania Avenue, N.W.
Northwest
Building - G Street
Washington,
D.C. 20530
Tel:
(202) 514-4713
Fax:
(202) 514-1116
STEPHEN J. MURPHY, III
United
States Attorney
Eastern
District of Michigan
_________________________________
Judith
E. Levy
Assistant
United States Attorney
211
West Fort Street, Suite 2001
Detroit,
MI 48226
Tel:
(313) 226-9100
Fax:
(313) 226-2311
For
the Rose Companies
