DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
MATTHEW SMITH, et al.,
No. CV 97-0603-N-RHW
DUANE B. HAGADONE and
FRAN I. GOFF, Defendants.
The United States commenced this action on December 24, 1997, to enforce the Fair Housing Act as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619 ("the Act"). The Complaint alleges that Defendants Duane B. Hagadone and Fran I. Goff discriminated because of familial status (1) in the operation of Lake Villa Apartments, 2501 Sherman, Coeur d'Alene, Idaho. In the First Claim for Relief brought pursuant to section 812(o) of the Act, 42 U.S.C. § 3612(o), the Complaint alleges that Defendants discriminated against James and Robin Neil and their son Cameron, Matthew Smith and his sons, and the Idaho Fair Housing Council. In the Second Claim for Relief brought pursuant to section 814 of the Act, 42 U.S.C. § 3614, the Complaint alleges that Defendants engaged in a pattern or practice of discrimination because of familial status in the rental of dwellings at the Lake Villa Apartments.
Specifically, the Complaint alleges that Defendants violated section 3604(a) of the Act, 42 U.S.C. § 3604(a), by imposing and enforcing an occupancy standard limiting occupancy of "studio" apartments to one person and one- and two-bedroom apartments to two persons with the intention of making housing unavailable to homeseekers because of their familial status. The Complaint also alleges that Defendants imposed and enforced rules restricting use of the swimming pool, clubhouse, and other facilities by children, thereby discriminating in the terms, conditions, or privileges of sale or rental of dwellings because of familial status in violation of section 3604(b) of the Act. 42 U.S.C. § 3604(b). The Complaint also alleges that Defendants made, or caused to be made, statements with respect to the rental of dwellings that indicate a preference, limitation or discrimination because of familial status, in violation of section 3604(c) of the Act. 42 U.S.C. § 3604(c).
Defendants deny all of Plaintiff's claims and expressly deny that they have engaged in discriminatory conduct in violation of the Fair Housing Act. The parties recognize that if this case were to proceed to trial, both the Plaintiff and the Defendants would present evidence supporting their respective positions. As a result, the parties desire to avoid costly and protracted litigation and agree that this dispute should be resolved without the necessity of an evidentiary hearing. Therefore, the parties have waived a hearing and the entry of findings of fact and conclusions of law and have agreed to the entry of this Consent Order, as indicated by the signatures appearing below.
Therefore, it is hereby ORDERED, ADJUDGED and DECREED:
- Injunctive Relief
Defendants, their agents, employees, and all persons in active concert or participation with any of them are permanently enjoined, with respect to the rental of dwellings (2) at the Lake Villa Apartments and any other locations at which they engage in the sale or rental of dwellings, from:
- Refusing to rent a dwelling unit, refusing or failing to provide or offer information about a dwelling unit, or otherwise making unavailable or denying a dwelling unit to any person because of familial status;
- Discriminating against any person in the terms, conditions or privileges of rental of a dwelling unit, or in the provision of services or facilities in connection therewith, because of familial status;
- Making, printing, publishing, or causing to be made, printed, or published any notice, statement or advertisement with respect to the rental of a dwelling unit that states any preference, limitation or discrimination because of familial status;
- Misrepresenting to any person because of familial status that any dwelling unit is not available for inspection or rental when such dwelling unit is, in fact, so available;
- The above provisions and prohibitions regarding familial status shall not apply to housing presently intended and operated, or which may in the future be intended and operated, in compliance with provisions of the fair Housing Act, 42 U.S.C. §§ 3601-3619, and the regulations thereunder, as housing for older persons;
- Imposing an occupancy standard in violation of the Fair Housing Act (3); and
- Engaging in any other discriminatory housing practice prohibited by 42 U.S.C. §§ 3601-3619.
- Rental Standards and Procedures
- Defendants have adopted and shall implement no later than the date of entry of this Order the procedures for the processing of applications, the establishment of waiting lists, and the approval of applicants for the rental of available dwelling units and/or positions on waiting lists set forth in paragraph B below. A copy of these standards and procedures is appended hereto as Attachment A. (4) These standards and procedures shall be posted and prominently displayed in the rental office at the Lake Villa Apartments, and in any office where there is rental or sale activity and/or personal contact with applicants for units at the Lake Villa Apartments, and a copy of these standards and procedures shall be made available upon request to any applicant for a rental unit. For the duration of this Order, these rental standards and procedures may be modified only upon forty-five (45) days prior written notice to counsel for the United States. (5) In the event that the United States objects to the proposed change in writing within forty-five (45) days of receipt of notice, the change shall not be implemented until the parties have resolved their dispute or, in the event they are unable to resolve it, the Court has resolved it. These standards shall be implemented in a non-discriminatory manner.
- Defendants shall, with respect to dwellings rented at the Lake Villa Apartments:
- Maintain an Availability List (Attachment B) which includes at least the following information: the address and apartment number of each unit known to be available for rental, the number of bedrooms in each such unit, the monthly rent for each such unit, the date Defendants were first informed it would be available for rental, and the first date it would be available for rental or occupancy by a new tenant;
- Maintain a Tenant Inquiry Log (Attachment C) of all persons who inquire in person about the availability of rental units, stating the date of inquiry, and, for each person who provides such information, their name, current address, telephone number, and family composition. If the person rents a unit, the unit number and date of occupancy for that person shall be noted on the Log. Defendants or their representatives shall make a good faith effort to obtain the information described by this paragraph with respect to each prospective applicant. Defendants shall inform prospective applicants who inquire about renting dwellings of all available units, if any, and if none are available, about the availability of a Waiting List;
- Permit all prospective applicants the opportunity to complete a written rental application and/or to be placed on a waiting list, which shall be maintained pursuant to Section II.B.5 below;
- Maintain a Rental Application Log (Attachment D) setting forth the reasons why each rejected application for tenancy was rejected; and
- Maintain a Waiting List (or Lists) (Attachment E) of all prospective applicants who wish to be placed on such a list in chronological order by date, and time, if applicable, of inquiry in accordance with Defendants' Rental Procedures for Inquiries and Processing of Applications (see Attachment A). Prospective applicants shall be provided Lake Villa General Information Statement (Attachment A-1). For all prospective applicants, the List shall state their names, their current address and telephone number, a description of the dwelling desired (e.g., number of bedrooms), and family composition. The Waiting List shall further indicate for each prospective applicant the date of placement on the List, the date(s) and time(s) of attempted or actual communications concerning the availability of a unit, and the nature (e.g., telephone call or letter) and result of all such communications. When Defendants or their agents or employees become aware of any vacancy at Lake Villa Apartments, they shall make reasonable and uniform attempts to contact persons from the Waiting List, in the chronological order they are listed (except when this Order specifically provides otherwise and as specified in Rental Procedure 11 (Attachment A)), before making that dwelling available to any other person. Prospective tenants shall be provided the Prospective Tenant Letter, Attachment A-2.
Defendants have drafted and implemented Rules and Regulations governing use of the Lake Villa facilities by tenants. (6) These rules and regulations include the following language:
It is the policy of the owner and managers of the Lake Villa Apartments not to discriminate against anyone in any aspect of the rental of apartments because of race, color, national origin, religion, sex, handicap, or familial status (having children under the age of 18 years).
Defendants shall provide all current tenants with a copy of these rules and regulations accompanied by notification of the changes in the rules and regulations as they apply to children. (7) For the duration of this Order, all items contained in Defendants' Rules and Regulations, Subsection A of these rules and regulations may be modified only upon forty-five (45) days prior written notice to counsel for the United States. In the event that the United States objects to the proposed change in writing within forty-five (45) days of receipt of notice, the change shall not be implemented until the parties have resolved their dispute or, in the event they are unable to resolve it, the Court has resolved it. The United States shall be notified of all other changes in the rules and regulations, other than Subsection A of Defendants' Rules and Regulations, within ten (10) days of the change. If the United States believes that the changes implicate the Fair Housing Act, the United States shall notify Defendants of their objection to the change within ten (10) days of receipt of notice. These rules and regulations shall be enforced in a non-discriminatory manner.
- Within sixty (60) days after the date of entry of this Order, Defendants and Defendants' agents and employees with responsibilities for or oversight of the rental of dwelling units at Lake Villa Apartments shall attend a three-hour program of educational training concerning their responsibilities under federal, state, and local fair housing laws, regulations, or ordinances. The program shall be conducted by the Idaho Fair Housing Council in Coeur d'Alene, Idaho. Any expenses (which will not exceed $500) associated with this program shall be borne by Defendants. All persons attending such a program shall have their attendance certified in writing by the person conducting the educational program. Defendant Fran Goff retired on February 1, 1999, and no longer is employed by Defendant Hagadone.
Defendant Goff is not now and does not expect to be employed in any way performing the duties or responsibilities relating to the rental of housing or as a rental manager. Accordingly, Defendant Goff is exempt from Section IV. of this Consent Decree requiring mandatory education and training. If Defendant Goff re-enters the labor market during the terms of this Consent Decree, whether on a part-time, full-time, or temporary basis, as a rental manager or with responsibilities relating to the rental of housing, Defendant Goff shall notify the United States of her re-entry and Defendant Goff shall be required to attend mandatory education and training in accordance with Section IV. of this Consent Decree.
- Within ten (10) days after the date of entry of this Consent Order, Defendants shall conduct and complete the following described educational program for all their agents and employees with responsibilities for or oversight of the rental of housing at the Lake Villa Apartments to inform them of the provisions of this Order. Such program shall include:
- Furnishing to each such employee or agent a copy of this Consent Order, and informing each person, in person, of the duties of Defendants and their employees and agents pursuant to the Order;
- Furnishing to each employee or agent a copy of the tenant rules and regulations described in Section III accompanied by explicit notification of the changes in the rules and regulations as they apply to children; and
- Securing the signed statement appearing at Attachment H from each such employee and agent indicating that he or she has received, read, and understands this Consent Order and Defendants' policy of nondiscrimination and further understands that violation of this Order may result in sanctions against them by Defendants and/or the Court.
- For the duration of this Order, each new agent or employee of Defendants with rental or oversight responsibilities at Lake Villa Apartments shall be given a copy of and required to read this Consent Order, and sign the statement appearing at Attachment H, within ten (10) days after the date he or she commences an employment or agency relationship with any owner thereof.
- With respect to the rental of dwellings at the Lake Villa Apartments, Defendants shall:
- Defendants shall deliver to counsel for the United States periodic reports of rental activities at Lake Villa Apartments. (8) The first report shall cover the period from the date this Order is entered to June 30, 1999. Subsequent reports shall cover six month periods ending December 31, 1999, June 30, 2000, December 31, 2000, and June 30, 2001. The reports shall be delivered within twenty (20) days after the end of each period and shall consist of the following information:
- Copies of all signed statements secured pursuant to Sections IV.A, IV.B, and IV.C of this Order;
- opies of the Availability Lists, Tenant Inquiry Logs, Rental Application Logs, and Waiting Lists maintained pursuant to Sections II.B and V.A of this Consent Order;
- Representative copies of any advertisements published in a newspaper or any other medium during the reporting period;
- A listing, by unit number and familial status of the occupants, of the move-ins and move-outs during the reporting period; and
- Any newsletters, notices, or other information sent to tenants at Lake Villa Apartments.
The first report submitted pursuant to this Section shallalso include:
- Written verification that Defendants and any other person required to do so have attended the education program mandated by Sections IV.A and IV.B of this Order; and
- A photograph of each office in which rental or sales activity is conducted, showing the fair housing posters required by Section VI.A of this Order.
- Until final dismissal of this action with prejudice, Defendants shall preserve all records which are the source of, contain, or relate to any of the information pertinent to their obligations under this Order, including all rental applications and leases for dwellings at the Lake Villa Apartments. Upon reasonable notice to counsel for Defendants, representatives of the United States shall be permitted to inspect and copy all such records of Defendants at any and all reasonable times.
- During the term of this Order, Defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written administrative or legal complaint alleging housing discrimination against Defendants, or against any of their employees or agents acting in the scope of their employment with the Defendants. They shall also promptly provide the United States all information it may request concerning any such complaint.
Within five (5) days after the date of entry of this Consent Order, Defendants shall take the following steps to notify the public of their nondiscriminatory policies:
- Post and prominently display in the rental office at the Lake Villa Apartments, and in any office where there is rental activity and/or personal contact with applicants for units at the Lake Villa Apartments, a poster no smaller than 10 inches by 13 inches that indicates that all apartments are available for rent on a nondiscriminatory basis.
- Include the words "Equal Housing Opportunity" or the fair housing logo in all advertising conducted by Defendants for the Lake Villa Apartments in newspapers, telephone directories, radio, television or other media, and on all billboards, signs, pamphlets, brochures and other promotional literature. The words or logo should be prominently placed and easily legible. In addition, all newspaper and radio advertising placed by Defendants pertaining to Lake Villa Apartments subsequent to the date of entry of this Order shall conform to the provisions of the applicable HUD advertising guidelines, 24 C.F.R. Part 109 (1995).
- Include the following phrase in the standard lease used for the Lake Villa Apartments:
We are an equal housing opportunity provider. We do not discriminate because of race, color, sex, national origin, religion, handicap or familial status (having children under age 18).
- Within fifteen days after the entry of this Consent Order, Defendants shall pay the following amounts to the following aggrieved persons in settlement of their claims for economic damages and/or emotional distress damages:
To: James and Robin Neil - $18,666.00
James and Robin Neil for the benefit of Cameron Neil - $2,800.00
To: Matthew Smith - $18,666.00
Matthew Smith for the benefit of Landon Smith - $2,800.00
Matthew Smith for the benefit of Aaron Smith - $2,800.00
Matthew Smith for the benefit of Damon Smith - $2,800.00
To: Patricia Smith - $18,666.00
Patricia Smith and Donald Barner for the benefit of Brianna Barner - $2,800.00
To: Idaho Fair Housing Council - $5,002.00
Payment shall be made by five certified checks: one check in the amount of $27,066.00 made payable to Matthew Smith; one check in the amount of $21,466.00 made payable to James Neil and Robin Neil; one check in the amount of $18,666.00 made payable to Patricia Smith; one check in the amount of $2,800.00 made payable to Patricia Smith and Donald Barner; and one check in the amount of $5,002.00 made payable to the Idaho Fair Housing Council. The checks shall be sent to counsel for the United States. Counsel for the United States shall retain possession of the check for each aggrieved person until a release of that aggrieved person's claims against Defendants that were raised in this lawsuit has been signed for or on behalf of that aggrieved person. Counsel for the United States shall forward the original releases to counsel for Defendants.
After examination of the settlement amounts designated for the minor aggrieved persons and the affidavits made by the parents on behalf of such minors that such amounts shall be used solely for the support and education of the minors, the Court finds that the interests of the minors have been taken into account and that with respect to those minors, the settlement amounts are fair and equitable and fully release the Defendants. This Court further orders that this settlement and said releases are final and binding on all five minor aggrieved persons and that they are forever barred from challenging this settlement in this or any other forum.
- Within fifteen days after the entry of this Consent Order, Defendants shall deposit in an interest-bearing escrow account approved by the United States the sum of Thirty thousand dollars ($30,000.00) for the purpose of providing compensation for economic damages and/or emotional distress damages suffered by any aggrieved persons who have been the victims of Defendants' alleged discriminatory housing practices, and who may be identified through the procedures set forth in this Section. The parties shall designate an individual(s) employed by the financial institution having custody of the escrow account as custodian with authority to prepare and sign checks drawing on the escrow account pursuant to the procedures set forth below. The escrow agreement shall provide that the custodian of the escrow account shall prepare and sign checks only upon the written instructions of Defendants' counsel as provided in Section VII.F below.
- On three occasions during the sixty (60) days following the date of entry of this Order, Defendants shall publish a Notice to Potential Claimants of Alleged Housing Discrimination ("Notice") of at least three columns by six inches in the news section of the Coeur d'Alene Press. The publication dates in each newspaper shall be separated from one another by at least one week. At least one of the publication dates for each paper shall be on a Sunday. Defendants shall provide a copy of the newspaper containing each such Notice to counsel for the United States within three (3) days after publication of the Notice. Defendants shall ensure that the identity of the publication and the date of publication is apparent on the Notice. Defendants shall notify counsel for the United States in writing of the date on which the last such notice was published within five (5) days of its publication. No notices shall be published in a Saturday edition or on a holiday. The Text of this Notice shall be as set forth in Attachment I.
- In order to receive compensation, each aggrieved person must submit a Proof of Claim in the form of Attachment J made under oath. The Proof of Claim shall detail the circumstances surrounding the alleged discrimination against him or her and the damages that he or she claims to have suffered.
- Within 180 days from the date that the last Notice is sent or advertised pursuant to Section VII.C, the United States shall determine which persons have been victims of Defendants' alleged discriminatory housing practices, and shall determine in its sole discretion an appropriate amount of damages to be awarded to each such person, provided that no person shall be paid any amount pursuant to this Section until after execution of a written release of all claims, legal or equitable, which he or she might have against Defendants relating to the claims asserted in this lawsuit and execution of a declaration under penalty of perjury attesting to the facts of the alleged discrimination suffered. The Release to be used is appended as Attachment K.
- The United States shall notify Defendants in writing of its determinations pursuant to Section VII.E above and supply Defendants with a release signed by the designated aggrieved person or his or her representative. Within ten (10) days after receiving this written notification and release, Defendants or their counsel shall direct the custodian of the escrow account created pursuant to Section VII.B above to prepare a cashier's check payable as instructed on the release.
- In the event the United States identifies more than twenty (20) claims to be presented to Defendants for payment from the victim compensation fund, the United States shall have an additional ninety (90) days in which to investigate and review such claims prior to submitting them to Defendants pursuant to Sections VII.E and VII.F.
- In the event that no additional alleged victims of Defendants' alleged familial status discrimination are located or identified after the actions taken pursuant to Sections VII.B through G have been completed, or that a total amount of less than Thirty thousand dollars ($30,000.00) is paid to such persons, the remaining balance shall be contributed to the Idaho Fair Housing Council for the purposes of furthering fair housing in Idaho. Within ten (10) days of receipt of notice from the United States, Defendants or counsel shall direct the custodian of the escrow account created pursuant to Section VII.B above to prepare a cashier's check(s) payable to that organization in the amount stated by the United States.
This action is presently dismissed without prejudice. However, at any time after submission of the final report for the period ending June 30, 2001 required by Section V.B, Defendants may move for dismissal of this case, with prejudice, provided Defendants are in full compliance with this Order. Dismissal with prejudice shall be granted unless, no later than forty-five (45) days after receipt of Defendants' motion, the United States serves a written objection. If an objection is filed, the Court shall hold a hearing on the dismissal motion, and the burden shall be on the United States to demonstrate why this Order should not be terminated. If the United States fails to meet its burden, or if no objection is timely filed (except for good cause shown), this Order shall terminate forthwith and this case shall be dismissed with prejudice.
The parties to this Consent Order shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Order prior to bringing such matters to the Court for resolution. However, in the event of a failure by Defendants, whether willful or otherwise, to perform in a timely manner any act required by this Consent Order or otherwise to act in violation of any provision thereof, the United States may move this Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed. The Court shall retain jurisdiction to enforce the terms of this Order upon a motion to reopen the case for such purpose.
Any time limits for performance imposed by this Consent Order may be extended by mutual agreement of the parties.
ORDERED this ____ day of ____[July]________, 1999.
Robert H. Whaley, Judge
United States District Court
The undersigned apply for and consent to the entry of this Order:
Bill Lann Lee
Acting Assistant Attorney General
Joan A. Magagna
Chief, Housing and Civil Enforcement Section
Joseph D. Rich
Clay G. Guthridge
Je Yon Jung
Housing and Civil Enforcement Section
Civil Rights Division
Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
Betty H. Richardson
United States Attorney
D. Marc Haws
Assistant United States Attorney
First Interstate Center
877 W. Main St., Ste 201,
Boise, Idaho 83702
Defendant DUANE B. HAGADON
Defendant FRAN I. GOFF
Patrick E. Miller
Paine, Hamblen, Coffin, Brook, & Miller LLP
816 Sherman Avenue
P.O. Box E
Coeur d'Alene, Idaho 83816-0328
Attorney for Defendants
Idaho Legal Aid Services, Inc.
P.O. Box 1439
410 Sherman, 3rd Floor
Coeur d'Alene, Idaho 83814
Attorney for Plaintiff-Intervenor Matthew Smith
On _____________________________________________, 1999, I was instructed by __________________________________ with respect to my responsibilities under the Lake Villa Apartments' rental policies and procedures, rules and regulations, and the Order entered by the federal district court in United States v. Duane B. Hagadone and Fran I. Goff, No. CV 97-0603-N-RHW (D. Idaho). I have received a copy of and have read that Order. I understand my legal responsibilities under this Order and those policies and procedures, and I will comply with those responsibilities. I further understand that the Court may impose sanctions on me if I violate a provision of this Order and that my employer may also discipline me if I violate a provision of that Order. I further understand that the Fair Housing Act prohibits my employer from taking any adverse action against me for complying with this Order.
1. "'Familial status' means one or more individuals (who have not attained the age of 18 years) being domiciled with--(1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years." 42 U.S.C. § 3602(k).
2. "'Dwelling' means any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof." 42 U.S.C. § 3602(b).
3. Defendants' revised Occupancy Standards are contained in Attachment A. The United States has reviewed and approved these occupancy standards for the purposes of this Consent Order and Lake Villa Apartments only. It is further provided that an infant child of an inquiring party, prospective tenant, or existing tenant, under the age of five (5), is not deemed, construed, or will be utilized, as an additional person for the imposition of the occupancy standards. As an example, two persons, with a child under the age of five (5), shall be considered as two persons for the rental of a one or two bedroom apartment; or one person, with an child under the age of five (5), shall be considered as one person for the rental of a studio apartment.
4. The United States has reviewed and approved Defendants' Standards and Procedures attached as Attachment A for the purposes of this Consent Order and Lake Villa Apartments only.
5. All documents or other communications required by this Order to be sent to counsel for the United States shall be addressed as follows: Chief, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, P.O. Box 65998, Washington, D.C. 20035-5998.
6. Attachment F hereto. The United States has reviewed and approved the Lake Villa Rules and Regulations that apply to children and families with children for the purposes of this Consent Order and Lake Villa Apartments only. This approval is not to be interpreted as an endorsement of the rules set forth in Part B and C of the Rules and Regulations.
7. The approved notification is attached as Attachment G.
8. Prior to the entry of this Order, the Defendants have provided to the counsel for the United States, in a form approved by the United States, a report detailing the current occupancy of each unit in the Lake Villa Apartments by the familial status of the occupants. > >