Housing And Civil Enforcement Cases Documents



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO



UNITED STATES OF AMERICA,

           Plaintiff,

v.

HALLMARK HOMES, INC.,
ARCHITECTS WEST, P.A., and
KEVIN W. JESTER,

           Defendants,

GLEN WILHELMSEN, as Personal
Representative of the Estate of
STANLEY R. WILHELMSEN,

          Defendant for Purposes of Relief.

__________________________________________

HALLMARK HOMES, INC.,

           Cross-Claimant,

v.

ARCHITECTS WEST, P.A., and
KEVIN W. JESTER,

           Cross-Defendants.

___________________________________________

Case Number CIV 01-432-N-EJL

CONSENT DECREE



I.     INTRODUCTION

This Consent Decree is entered into between Plaintiff United States; Defendants Hallmark Homes, Inc., Architects West, P.A., and Kevin W. Jester; and Defendant for Purposes of Relief, Glen Wilhelmsen, as Personal Representative of the Estate of Stanley R. Wilhelmsen. This Consent Decree also resolves the cross-claim by Cross-Claimant Hallmark Homes, Inc., against Cross-Defendants Architects West, P.A., and Kevin W. Jester.

This action was brought by the United States to enforce the provisions of Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act, hereinafter referred to as "the Act"), as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619. It was brought pursuant to Section 814(a) of the Act, 42 U.S.C. § 3614(a). The United States alleges that Defendants have engaged in a pattern or practice of discrimination and a denial of rights to a group of persons on the basis of disability (1) by failing to design and construct the Creekside Meadows apartment complex in Coeur d'Alene, Idaho, with the features of accessible and adaptable design set forth in the Act, 42 U.S.C. § 3604(f)(3)(C), and, thereby, making housing unavailable to, and otherwise discriminating against, persons with disabilities at the aforementioned complex in violation of the Act, 42 U.S.C. §§ 3604(f)(1)-(3).

Defendant Hallmark Homes, Inc. developed and built Creekside Meadows, a twenty-eight (28) unit apartment complex located at 2200-2366 North 15th Street in Coeur d'Alene. Defendant Kevin W. Jester, a principal at Defendant Architects West, P.A., is the architect who designed the units at Creekside Meadows. (Unless specifically identified by name, hereinafter, Hallmark Homes, Inc, Architects West, P.A., and Kevin W. Jester will be referred to collectively as "Defendants.")

Glen Wilhelmsen, as personal representative of the Estate of Stanley R. Wilhelmsen, is the owner of record of Creekside Meadows Apartments. Though initially not a party to this action, on December 29, 2005, this Court ordered Mr. Wilhelmsen to be added as a necessary party for complete relief under Rule 19, Fed. R. Civ. P. (Hereinafter, Mr. Wilhelmsen will be referred to as "Owner.")

Defendants designed and constructed Creekside Meadows for first occupancy after March 13, 1991. Accordingly, the fourteen (14) ground-floor units at Creekside Meadows are "covered multifamily dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(B), and thus subject to the accessibility requirements of 42 U.S.C. § 3604(f)(3)(C).

The Act requires that "covered multifamily dwellings" include certain basic accessibility and adaptability design features intended to make housing usable and accessible or adaptable by a person who is, or who becomes, disabled. Specifically, 42 U.S.C. § 3604(f)(3)(C) mandates that:

(a) the public use and common use portions of such dwellings be readily accessible to, and usable by, individuals with disabilities; and

(b) all covered dwelling units contain

(i) doors sufficiently wide to allow passage by persons in wheelchairs;

(ii) an accessible route into and through the dwelling;

(iii) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;

(iv) reinforcements in bathroom walls to allow later installation of grab bars; and (v) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.

The parties agree that this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. § 1345 and 42 U.S.C. § 3614(b). In an Order dated September 29, 2003, this Court has already found that with certain limited exceptions, Creekside Meadows does not comply with the Fair Housing Act as built or as designed. The parties agree that the controversy should be resolved without further proceedings and without an evidentiary hearing. Therefore, the parties consent to the entry of this Decree as indicated by the signatures appearing below.

Accordingly, it is hereby ORDERED, ADJUDGED and DECREED:

II.   GENERAL INJUNCTION

1.   For the term of this Decree, Defendants, their officers, employees, agents, successors and assigns, and all other persons in active concert or participation with any of them are enjoined from discriminating on the basis of disability as prohibited by the Act, 42 U.S.C. §§ 3604(f)(1)-(3).

III.    ACCESSIBILITY MODIFICATIONS

2.   Within five (5) days of the entry of this Decree, the Defendants shall deposit ONE HUNDRED AND FIFTEEN THOUSAND DOLLARS ($115,000) into a retrofit fund established and maintained by the Owner ("the Fund"), which the Owner shall use to bring the public and common use areas and the individual units at Creekside Meadows into compliance with the Act, as set forth in more detail below. The Fund should cover all costs of retrofitting the units as well as the costs of the inspections to ensure that the work has been performed correctly. Any money remaining in the Fund after all retrofits are completed and have been certified correct, shall revert back to the Defendants. The Fund will only be used to do the retrofitting work specified in Appendices A and B, to compensate tenants who must vacate units while they are being renovated, and for lost rent, lost income, and other expenses incurred by the Owner, pursuant to Paragraph 4, below. The Fund shall not be used to make any other improvements to the property. During the period that the retrofits are being completed, the Owner shall produce an accounting of any monies that have been drawn down from the Fund with copies of the corresponding invoices. The Owner will mail copies of the accounting to counsel for the United States and Defendants. If the Defendants believe that monies from the Fund are being used for any impermissible purpose, they may petition the Court for relief, after endeavoring in good faith to resolve the issue informally.

3.   In the event that the Fund is not sufficient to cover such costs, the Owner shall notify promptly the United States and Defendants, and submit a signed statement ("Statement") setting forth the amount of money needed and the basis for this amount. The Defendants shall promptly (within 5 days of receiving the Statement) deposit into the Fund the money necessary to cover the additional costs. If the Defendants dispute the Owner's Statement, they may petition the Court for a determination of the Statement's accuracy or appropriateness after endeavoring in good faith to resolve the issue informally. Defendants will not be required to make the payment until the dispute is resolved.

4.  The Owner will incur lost rent, lost income and other costs as a result of the retrofit work and the inspections required herein. In addition, overseeing the retrofit work will cause a significant burden and expense to the Owner. Accordingly, the Owner may deduct FIVE THOUSAND DOLLARS ($5,000) from the Fund in consideration for the Owner undertaking to supervise the contractor in making the modifications agreed to herein. The Owner may also deduct FOURTEEN HUNDRED DOLLARS ($1,400) to compensate tenants whose units are renovated pursuant to this Decree. To the extent the Owner incurs and can document additional expenses and losses beyond these amounts, the Owner may submit a statement pursuant to paragraph 3, above, requesting reimbursement for such amounts.

A.  Modifications to Public and Common Use Areas

5.   Within twelve (12) months of the entry of this Decree, the Owner shall use the Fund to modify the public and common use areas of Creekside Meadows set forth in Appendix A.

6.  Within three (3) weeks of the completion of the work specified in Paragraph 5, an architect mutually approved by the United States and the Owner shall conduct an on-site inspection at Creekside Meadows to determine whether the modifications set forth in Appendix A have been completed. The Owner shall pay the costs of these inspections from the Fund established above and shall make the arrangements for these inspections. The Owner shall give the United States and Defendants ten (10) days notice of the inspection, and give the United States and Defendants an opportunity to attend the inspection.

7.   The Owner shall request that the architect set out the results of the inspection, including deficits, if any, in writing and shall send that report to the United States, Defendants and the Owner. If the architect determines that the necessary modifications have not been made or have not been made correctly, the Owner, through the contractor, shall correct such deficiencies and the architect shall again inspect the property to ensure the deficiencies were corrected. This process shall continue until the architect certifies that the modifications required by Appendix A have been completed. The Owner shall pay the costs of these inspections from the Fund established above and shall make the arrangements for these inspections. The Owner shall give the United States and Defendants ten (10) days notice of the inspection, and give the United States and Defendants an opportunity to attend the inspection.

B.    Modifications to the Individual Units

8.   Within twelve (12) months of the entry of this Decree, the Owner shall use the Fund to modify the ground-floor units at Creekside Meadows set forth in Appendix B.

9.   Within three (3) weeks of the completion of the retrofits to the first apartment unit, an architect approved by the United States and the Owner shall inspect the unit to determine whether the modifications required by Appendix B have been performed. The architect shall conduct similar inspections of every unit that is retrofitted, within three (3) weeks of the completion of the work. The Owner shall request that the architect set out the results of each inspection, including deficits, if any, in writing and send that report to the United States, Defendants and the Owner. If the architect determines that the necessary modifications have not been made or have not been made correctly, the Owner, through the contractor, shall correct such deficiencies and the architect shall inspect to ensure that the deficiencies have been corrected. This process shall continue until the architect certifies that modifications required by Appendix B have been completed. The Owner shall pay the costs of these inspections from the Fund established above and shall make the arrangements for these inspections. The Owner shall give the United States and Defendants ten (10) days notice of the inspection, and give the United States and Defendants an opportunity to attend the inspection.

IV.     EDUCATIONAL PROGRAM

10.  Within thirty (30) days of the entry of this Decree, each Defendant (or its principal, as applicable) shall provide to the United States a signed statement acknowledging that he has received and read a copy of the Decree. (2) This statement shall be substantially in the form of Appendix C.

11.  Defendants have testified that they are not now involved in the business of design or construction of multifamily housing. In the event that a Defendant wishes to engage in the design or construction of multifamily housing during the term of this Decree, then said Defendant shall undergo training on the design and construction requirements of the Fair Housing Act. The training shall be conducted by a qualified third party, unconnected to Defendants or their employees, agents or counsel, and any expenses associated with this training shall be borne by said Defendant. Said Defendant shall provide to the United States, within 30 days after the training, the name(s), address(es) and telephone number(s) of the trainer(s); copies of the training outlines and any materials distributed by the trainers; and a certification executed by said Defendant, in a form substantially similar to Appendix D.

V.    NONDISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION

12.   For the term of this Decree, Defendant Hallmark Homes, Inc. and Mike Fitzgerald (the sole owner and president of Hallmark) shall maintain and provide to the United States the following information and statements regarding any covered, multifamily dwellings intended to be developed, built, designed, and/or engineered in whole or in part, by either of them or by any entities in which they or their successors in interest have a position of control as an officer, director, member, or manager, or have a ten percent (10%) or larger ownership share. Hallmark and Fitzgerald shall provide such information to the United States annually for the remainder of the term of this Decree:

  1. the Fair Housing Act or having aided, assisted, or encouraged others in exercising such rights. the name and address of the project;
  2. a description of the project and the individual units;
  3. the name, address and telephone number of any site engineer(s) and/or civil engineer(s) involved with the project;
  4. a statement from all site engineer(s) and/or civil engineer(s) involved with the project acknowledging and describing his/her knowledge of and training in the requirements of Section 804(f)(3)(C) of the Fair Housing Act and in the field of accessible site design and certifying that he/she has reviewed the engineering documents for the project and that in his/her opinion the design specifications therein fully comply with the requirements of the Fair Housing Act and the Guidelines;
  5. the name, address and telephone number of the architect(s) involved with the project; and
  6. a statement from all architects involved with the project acknowledging and describing his/her knowledge of and training in the requirements of Section 804(f)(3)(C) of the Fair Housing Act and in the field of accessible site design and certifying that he/she has reviewed the architectural plans for the project and that in his/her opinion the design specifications therein fully comply with the requirements of the Act and Guidelines.
  7. If the engineering documents or architectural plans are revised, and the revisions could have any impact on the accessibility of the dwellings or complex, Defendants shall obtain and maintain, and provide to the United States upon request, a statement from the site engineer(s) or architect(s), as applicable, that in his/her opinion all specifications in the revised engineering documents or architectural plans, as pertinent, comply with the requirements of the Fair Housing Act and the Guidelines.

13.   For the term of this Decree, if Defendants Architects West or Kevin W. Jester prepare any architectural plans, drawings, or blueprints for covered multifamily housing, they shall include on such plans drawings or blueprints a statement that they comply with the Fair Housing Act and the Guidelines. For the term of this Decree, Defendants Architect West and Kevin Jester shall provide to the United States annually a list of all such multifamily housing that they have designed or are designing during the term of the Decree.

VI.     MONETARY DAMAGES FOR INTERMOUNTAIN FAIR HOUSING COUNCIL

14.   Defendants shall jointly pay the total sum of TWO THOUSAND DOLLARS ($2,000) in monetary damages to the Intermountain Fair Housing Council for its damages as a result of Defendants' failure to design and construct the complexes in compliance with the Fair Housing Act. Defendants shall pay said money within thirty (30) days of the date of entry of this Decree, by sending a check payable in that amount to Intermountain Fair Housing Council, care of the United States, provided that no amount shall be paid pursuant to this paragraph before the Intermountain Fair Housing Council has executed the Release of Claims at Appendix E.

VII.     NOTICE OF DEFENDANTS' NON-DISCRIMINATION POLICY

15.   For the term of this Decree, in all future advertising in newspapers, and on pamphlets, brochures and other promotional literature regarding covered multifamily housing that Defendants Hallmark or Fitzgerald develop or own, they 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.

VIII.   REPORTING AND DOCUMENT RETENTION

16.   Defendants shall advise the United States in writing within fifteen (15) days of receipt of any written administrative or legal fair housing complaint against them, against any property they own or manage, or against any employees or agents of Defendants working at or for any such property, regarding discrimination on the basis of disability, or alleging interference, retaliation, intimidation, or coercion on the basis of a person having exercised rights protected by Within fifteen (15) days of such advisement, the Defendants shall also advise the United States of the actions they have taken or plan to take, in response to the complaint. Upon reasonable notice, Defendants shall also provide the United States all information it may request concerning any such complaint.

17.   For the term of this Decree, Defendants are required to preserve all records related to this Decree, for all properties designed, constructed, owned, operated, or acquired by them. Upon reasonable notice to Defendants, representatives of the United States shall be permitted to inspect and copy any records of Defendants or inspect any developments or residential units under Defendants' control bearing on compliance with this Consent Decree at any and all reasonable times provided, however, that the United States shall endeavor to minimize any inconvenience to Defendants from such inspections.

IX.   DURATION OF DECREE AND TERMINATION OF LEGAL ACTION

18.   This Decree shall remain in effect for two (2) years after the date of its entry.

19.   The Court shall retain jurisdiction for the term of this Decree to enforce its terms, after which time the case shall be dismissed with prejudice. The United States may move the Court to extend the term of this Decree in the interests of justice.

20.   The parties shall endeavor in good faith to resolve informally any differences regarding interpretation of, and compliance with, this Decree prior to bringing such matters to the Court for resolution. However, in the event of a failure by Defendants to perform in a timely manner any act required by this Decree 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, and an award of any damages, costs, and reasonable attorneys' fees which may have been occasioned by the violation or failure to perform.

X.   TIME FOR PERFORMANCE

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

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

For Plaintiff United States



Wan J. Kim
Assistant Attorney General
Civil Rights Division




Dated:_____________

______________________________
Steven H. Rosenbaum
Section Chief
Timothy J. Moran
Marta Campos
Attorneys
United States Department of Justice
Civil Rights Division
950 Pennsylvania Ave., NW
Northwestern Building, 7th Floor
Washington, D.C. 20530
Tel.: (202) 514-4733
Fax: (202) 514-1116
marta.campos@usdoj.gov




For Defendant Hallmark Homes, Inc.





Dated:_____________ ______________________________
Theresa L. Kitay
Coughlin & Kitay
4750 Lincoln Boulevard
Suite 483
Marina del Rey, California 90292
Tel.: (310) 578-9134
Fax: (770) 454-0126
tkitay@fairhouse.net




For Defendants Architects West, PA and Kevin W. Jester





Dated:_____________

______________________________
Robert E. Covington, III
8884 North Government Way
Suite A
Hayden, Idaho 83835
Tel.: (208) 762-4545
Fax: (208) 762-4546




For Defendant Necessary for Relief,
Glen Wilhelmsen, Personal Representative
of the Estate of Stanley R. Wilhelmsen




Dated:_____________

______________________________
Kenneth T. Jacobsen
Dolan & Jacobsen
Post Office Box 1116
Coeur d'Alene, Idaho 83816
Tel.: (208) 664-8258
Fax: (208) 667-9631


IT IS SO ORDERED.





Dated: _____ February 2006 ______________________________
Honorable Edward J. Lodge
U.S. District Judge

APPENDIX A



Public and Common Use Areas



  1. Replace the steps to each covered unit with a compliant accessible path to the front door.
    [FHAAG Req. 1(1)(a), 2; ANSI 4.3.7]
  2. Reduce the cross-slope of the walkways outside of Units #2366, #2340, #2256, and #2236 such that the cross-slopes on the route are no more than 2%.
    [FHAAG Req. 1(1)(a), 2; ANSI 4.3.7]
  3. For the sloped wooden walks at Units #2222 and #2228, add handrails, and for Unit #2222 reduce the level change where the wood walk meets the concrete walk to ½" or less and maintain a bevel of 1:2 or less.
    [FHAAG Req. 1(1)(a), 2; ANSI 4.3.8]
  4. Locate, stripe and provide a pole sign mounted at least 60" high for an accessible parking stall, access aisle, and curb ramp in the visitor parking area, assuring that the stall, access aisle, and curb ramp all meet the applicable ANSI requirements, e.g., 96" wide stall with a 60" wide access aisle that slopes no greater than 5%.
    [FHAAG Req. 2; ANSI 4.6.2, 4.3.7]
  5. Provide a safe, accessible route to at least one of the dumpsters.
    [FHAAG Req. 2, Definition of "Accessible Route"; ANSI 4.3.7]
  6. Install a detectable barrier below the electrical meter boxes outside of Units #2222 and #2314 that extends below 27".
    [FHAAG Req. 1(1)(a), 2; ANSI 4.4.1]
  7. Replace the primary entry door's knob hardware for each covered unit with lever hardware.
    [FHAAG Req. 1; ANSI 4.13.9]



APPENDIX B



Retrofits to Covered Units (3)





  1. Reduce the level change at the primary entry door interior to 3/4" with a 1:2 bevel.
    [FHAAG Req. 4(4)]
  2. Reduce the level change/threshold at the patio door interior to 3/4" with a 1:2 bevel.
    [FHAAG Req. 4(4)]
  3. Reduce the level change at the patio door exterior to ½" below floor level for patios with wooden decks, and 4" for patios with concrete decks.
    [FHAAG Req. 4(5)]
  4. Lower the thermostat so that it is no higher than 48" from the floor.
    [FHAAG Req. 5]
  5. Widen master bedroom, hall bedroom, master bathroom, and hall bathroom doorways to install a door no smaller than 2'-10" and ensure a 32-inch nominal width (31 5/8 inches clear width) when the door is open 90 degrees.
    [FHAAG Req. 3(2)]

  6. Purchase Wing-It fasteners and grab bars in sufficient numbers for later installation at toilet and tub for all bathrooms and provide to the Owner. The equipment to be provided per bathroom is as follows: three 24" grab bars 1-1/2" in diameter, one wall to floor bar (Tubular Specialties product H3033Y), and a set of Wing-It fasteners.
    [FHAAG Req. 6]
  7. For master and hall bathroom toilets, use offset flange to provide 16" - 18" clearance to the side wall in the following units marked with an "x" on the chart.
    [FHAAG Req. 7(2)(a)(ii)]
unit number hall bathroom master bedroom bathroom
2366 x x
2360    
2340   x
2334 x x
2314   x
2308    
2288 x, if necessary (4) x, if necessary
2282 x x
2262    
2256 x  
2236    
2230 x x
2228   x
2222   x









APPENDIX C

Acknowledgment of Receipt of Consent Decree in

United States v. Hallmark Homes, Inc., et al.



I, _______________________________, acknowledge that I have received and read a copy of the Consent Decree in the case referenced above.

Executed this ____ day of _____________ 2006.



_________________________________
(Signature)








APPENDIX D



Acknowledgment of Training





On _______________________ I attended a training session on the design and construction requirements of the Fair Housing Act, that was conducted by____________________________________(name, address, telephone number). Attached are copies of the training outlines and any materials distributed by the trainer.

Executed this ____ day of _____________ 2006.





_________________________________
(Signature)






APPENDIX E



Release



In consideration for the payment made pursuant to the Decree entered in United States v. Hallmark Homes, Inc., Architects West, P.A., and Kevin W. Jester (CIV 01-432-N-EJL), and the Defendants' payment to me of TWO THOUSAND DOLLARS ($2,000.00), I hereby release and forever discharge all claims related to the facts at issue in the litigation referenced above, or in any way related to that litigation, and any other claims arising from alleged housing discrimination up to and including the date of execution of this release, that I may have against any of the Defendants, their heirs, executors, administrators, successors or assigns.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this ____ day of _____________ 2006.





______________________________________
[Name, Title]
Intermountain Fair Housing Council


1. The term "disability" has the same meaning as the term "handicap," as defined in 42 U.S.C. § 3602(h).

2. All correspondence with the United States under this Decree shall be addressed to: Chief, Housing and Civil Enforcement Section, Civil Rights Division, U.S. Department of Justice, Northwestern Building, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530.

3. This Appendix includes retrofits to all fourteen covered units, with the exception to retrofits to the kitchen and bathrooms of Unit 2288, to which the parties could not gain access in the Fall of 2005 to measure the clear floor space in the kitchen and the distance between the toilets and the side wall. Defendants agree to these two retrofits in Unit 2288, provided that the kitchen clearance is less than 58" (measured from cabinet face to cabinet face) and the toilets are less than 16" from the sidewall.

If the clear floor space in the kitchen is less than 58", Defendants agree to make the following retrofit:

Install removable cabinets in kitchen (and finish flooring and, where applicable, insulate pipes) to provide 60" between the two legs of the U and to provide 30" x 48" clear floor space approximately centered on each fixture and appliance.

OR, in the alternative:

Move the sink wall 2" into the dining room to provide the 60" clearance for the U-shaped kitchen. [FHAAG Req. 7 (1)(a), (1)(c)]

4. See footnote 3, above.


Document Entered: February 27, 2006

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Updated August 6, 2015

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