Housing And Civil Enforcement Cases Documents

UNITED STATES OF AMERICA,

          Plaintiff,                                                       Case No. 4:00-CV-194-BO(3)

      v.

QUALITY BUILT CONSTRUCTION,
INC.; f/k/a DAWN CONSTRUCTION,                CONSENT ORDER
INC.; WILLIAM E. DANSEY, JR.; and
HITE/MSM, P.C.,

          Defendants.

The United States and Hite/MSM, P.C. ("Hite") enter into this Consent Order to resolve the allegations that Hite violated Sections 804(f)(1)-(3) of the Fair Housing Act, 42 U.S.C. §§ 3604(f)(1)-(3), as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619 (the Act). The United States' Second Amended Complaint in this matter alleges that Hite designed, and Quality Built Construction, Inc. ("Quality Built") and William E. Dansey, Jr. ("Dansey") developed and constructed, Breezewood Condominiums ("Breezewood") and Hyde Park Apartments ("Hyde Park") without including the features of accessible and adaptive design required by the Act. This Consent Order addresses solely the United States' allegations against Hite. Defendants Quality Built and Dansey are not parties to this Consent Order and this Order does not address in any manner the allegations contained in the United States' Second Amended Complaint against Quality Built or Dansey.

The Act provides that, for residential buildings with four or more units, all ground-floor units in non-elevator buildings ⁽¹⁾ are "covered units." See 42 U.S.C. § 3604 (f)(7)(B). If such covered units were designed and constructed for first occupancy after March 13, 1991, the covered units must include certain basic features of accessible and adaptative design to make the housing usable by a person with a disability. See 42 U.S.C. § 3604 (f)(3)(C). The features include the following: (a) public use and common use areas that are readily accessible to and usable by persons with disabilities; (b) doors designed to allow passage into and within all premises that are sufficiently wide to allow passage by persons using wheelchairs; (c) an accessible route into and through the dwelling; (d) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (e) reinforcements in bathroom walls to allow later installation of grab bars; and (f) usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C).

Breezewood is a multifamily condominium development located in Greenville, North Carolina which was constructed in three phases. Phases I and II of Breezewood include 184 total units, 92 of which are located on the ground floor in non-elevator buildings containing four or more units. All certificates of occupancy for the buildings containing the 92 ground-floor units were issued after March 13, 1991. Consequently, the 92 ground-floor units are "covered units," and such units and the public and common use areas supporting such units must have the features of accessible and adaptive design required by the Act.

Hyde Park is a multifamily residential rental development located in Greenville, North Carolina. Hyde Park consists of 192 total units, 96 of which are located on the ground floor in non-elevator buildings containing four or more units. All certificates of occupancy for the buildings containing the 96 ground-floor units were issued after March 13, 1991. Consequently, the 96 ground-floor units are "covered units," and such units and the public and common use areas supporting such units must have the features of accessible and adaptive design required by the Act.

Hite also provided design services for the covered ground-floor units and public and common use areas of Players Club Apartments ("Players Club") and Meridian Park Apartments ("Meridian Park"), both located in Greenville, North Carolina.

Players Club is a multifamily residential rental development containing a total of 48 ground-floor units in non-elevator buildings with four or more units. All certificates of occupancy for the buildings containing the 48 ground-floor units were issued after March 13, 1991. Consequently, the 48 ground-floor units are "covered units," and such units and the public and common use areas supporting such units must have the features of accessible and adaptive design required by the Act.

Meridian Park is a multifamily residential rental development containing 178 units, 89 of which are located on the ground floor in non-elevator buildings containing four or more units. All certificates of occupancy for the buildings containing the 89 ground-floor units were issued after March 13, 1991. Consequently, the 89 ground-floor units are "covered units," and such units and the public and common use areas supporting such units must have the features of accessible and adaptive design required by the Act.

Although Players Club and Meridian Park are not included in the United States' Second Amended Complaint, the United States and Hite agree that this Consent Order resolves any pattern or practice claims the United States may have against Hite that Players Club and Meridian Park were designed without the features of accessible and adaptive design required by the Act. No other individual or entity involved in the design and/or construction of Players Club and/or Meridian Park is a party to this Consent Order and this Order does not address in any manner any claims or allegations the United States may have against any other individual or entity regarding the failure to design and/or construct Players Club and/or Meridian Park without the features of accessible and adaptive design required by the Act.

The United States and Hite agree that this Court has jurisdiction over the subject matter of this case. The parties hereby acknowledge and agree that this Consent Order and payment of the amounts set forth herein do not constitute and are not to be construed as an admission or acknowledgment of liability on the part of Hite. The liability of Hite is expressly denied by Hite, and the payment of the amounts set forth herein are being made solely for the purpose of compromising a disputed claim and terminating all controversy between the parties. The United States and Hite further agree that this matter should be resolved without further proceedings and without an evidentiary hearing. Therefore, the United States and Hite have consented to the entry of this Consent Order as indicated by the signatures appearing below. The parties agree that this Consent Order resolves all pattern or practice claims the United States may have against Hite that Breezewood, Hyde Park, Meridian Park, and/or Players Club were designed without the features of accessible and adaptive design required by the Act.

It is hereby ORDERED, ADJUDGED and DECREED:

Defendant Hite, its officers, employees, agents, successors, assigns and all other persons in active concert or participation with it are permanently enjoined from discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.C. §§ 3604(f)(1) - (3), and as set forth in the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991) (the Guidelines).

The United States and Hite recognize that Breezewood, Hyde Park, Meridian Park and Players Club do not meet the accessibility standards of the Act and the Guidelines. To address this noncompliance, Hite has agreed to take the actions set forth below.

For a period of five (5) years from the date of the entry of this Consent Order, for all design contracts for covered multifamily dwellings entered into by Hite as evidenced by the completion of the site plans and building construction documents, prior to the application for the initial building permits for the project, Hite shall submit to counsel for the United States the following information: (1) the names and addresses of the builders and developers of the project; (2) the name and address of the project; (3) the type of multi-family dwelling that will be constructed (i.e., condominiums or apartments) and the total number of dwelling units planned; and (4) a written statement that the plans include design specifications that comply with the requirements of the Act and the Guidelines.

1. For the purposes of this Consent Order, "aggrieved persons" means:
   1. Any person who was discouraged or precluded from living at Breezewood, Hyde Park, Meridian Park, and/or Players Club or was otherwise harmed because the covered units in such properties or the public and common use areas of Meridian Park and/or Players Club did not comply with the Act and the Guidelines; or
   2. Any current or former tenant of a covered unit in Breezewood, Hyde Park, Meridian Park, and/or Players Club who paid to modify his or her unit so that the unit would comply with the Act and/or the Guidelines or was otherwise harmed by the alleged failure of the developments to meet the requirements of the Act.
2. Hite shall pay the total sum of TWENTY THOUSAND DOLLARS ($20,000.00) to the following aggrieved persons identified by the United States. Hite shall pay said money within thirty (30) days of the date of entry of this Order by sending to counsel for the United States individual checks, payable to the order of each of the following identified aggrieved persons in the following amounts:

   1.  Carolyn Craig      $10,000.00

   2.   Nancy Craig       $ 2,500.00

   3.   Phillip Craig        $ 2,500.00

   4.   Christine Bland   $ 5,000.00

   The United States shall keep the check for each identified aggrieved person in its possession until that person has executed a written release of all claims, legal or equitable, in the form of Appendix "A," that he or she might have against Hite relating to the claims asserted in this lawsuit.

3. Hite's payments to such aggrieved persons do not fully compensate such persons or any other aggrieved persons for damages suffered as a result of the subject properties' non-compliance with the Act. Hite's payments in no way compromise or fully satisfy any claims for damages such aggrieved persons or any other aggrieved persons may have against any other individuals or entities who were involved in the design and/or construction of such properties.

The parties request that the Court approve Hite's proposal to designate the North Carolina Division of Vocational and Rehabilitative Services (through its Director, currently George D. McCoy, and/or the Chief of Independent Living Services, currently John W. Dalrymple) ("Administrative Entity") to receive, administer and distribute all retrofit funds and residual funds created by this Consent Order pursuant to Sections VI through VIII below.

1. Ground-floor Condominium Units Retrofit Fund. Within forty-five (45) days of the date of entry of this Consent Order, Hite shall pay the total sum of TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00) into an escrow fund ("Breezewood Unit Interior Fund") which shall be used by unit owners to retrofit the violations of the interiors of condominium units of Breezewood identified in the Breezewood Condominium Summary of Remedies, Appendix "B," within five (5) years of the date of entry of this Consent Order.
2. Administration of Funds. The Breezewood Unit Interior Fund shall be administered in the following manner:
   1. Administrative Entity. The Administrative Entity shall administer and distribute the Breezewood Unit Interior Fund pursuant to this Consent Order. The Administrative Entity shall develop procedures to be followed for receipt and administration of the Breezewood Unit Interior Fund in a manner consistent with this Consent Order. Such procedures shall be submitted to the United States for approval within sixty (60) days of the date of entry of this Consent Order. Any costs incurred in connection with the administration of the Breezewood Unit Interior Fund shall be paid from the Breezewood Unit Interior Fund.
   2. Distribution of Fund. The Administrative Entity shall make the money in the Breezewood Unit Interior Fund available to owners of individual condominium units in Breezewood desiring to modify the interiors of their units at Breezewood to make them more accessible as provided in this Order. The Administrative Entity shall determine whether the desired modification(s) fall within the scope of the Order, and the amount to be used for such modification(s). The Administrative Entity shall make determinations on payments from the Breezewood Unit Interior Fund as set forth below upon written requests on a first-come, first-serve basis:
      1. The money placed into the Breezewood Unit Interior Fund, along with all interest accumulated, is to be made available, for a period of five (5) years from the date of entry of this Consent Order, on terms specified in this Order, to all owners of the condominium units at Breezewood seeking to modify their units to retrofit all or some of the violations listed in the Breezewood Condominiums Summary of Remedies which is attached hereto as Appendix "B" and/or to install grab bars in any bathroom in the units. A qualifying unit owner shall receive ONE THOUSAND DOLLARS ($1,000.00) if he or she agrees to modify his or her unit to retrofit substantially all of the violations listed in Appendix "B." This incentive payment shall be paid from the Breezewood Unit Interior Fund. All retrofits made to the interiors of the units at Breezewood shall comply with the recommendations set forth in Appendix "B" and the Guidelines.
   3. If at the end of the five (5) year term of this Consent Order any balance remains in the Breezewood Unit Interior Fund, the Administrative Entity shall notify the United States in writing that a balance remains and the amount of any such balance. Within thirty (30) days of notifying the United States, the Administrative Entity shall deposit into escrow any remaining balance ("Residual Fund") to be used for the purpose of retrofitting existing housing in the Greenville or Pitt County, North Carolina area to make it more accessible to persons with disabilities, or otherwise increasing the stock of accessible housing in that area. The Administrative Entity shall develop procedures to be followed for receipt, administration, and distribution of the Residual Fund in a manner consistent with this Consent Order. Such procedures shall be submitted to the United States for approval within sixty (60) days of the date of notifying the United States of any remaining balance. Any costs incurred in connection with the administration of the Residual Fund shall be paid from the Residual Fund.

1. Hyde Park is a rental development which is currently owned and/or controlled by entities in which Hite has no interest. Unlike the condominium scheme of Breezewood in which the ground-floor units are individually owned and may be modified by such owners, Hyde Park is a rental development in which the tenants of the ground-floor units hold only a lease and have no authority to retrofit the individual units, and Hite has no ownership or control of the units. Therefore, there are significant practical impediments to Hite's bringing these units into compliance with the Act. To address these violations, Hite has agreed to take the actions set forth below. These actions are reasonable and practicable and will increase the number of housing units on the market with features of accessible and adaptable design.
2. Within forty-five (45) days of the date of entry of this Consent Order, Hite shall pay the total sum of ONE HUNDRED FIFTEEN THOUSAND AND NO/100 DOLLARS ($115,000.00) into an escrow fund ("Hyde Park Unit Interior Fund") which shall be used to pay, at least in part, the costs of retrofitting the covered ground-floor units at Hyde Park. The Administrative Entity shall administer and distribute the Hyde Park Unit Interior Fund in the following manner:
   1. The United States may seek an agreement with the owner(s) of Hyde Park, or an order from the Court requiring the owner(s) of Hyde Park, to retrofit or permit retrofitting of the covered ground-floor units at Hyde Park.
   2. If the United States receives such an agreement or order, the United States shall notify the Administrative Entity in writing of the order or agreement and direct the Administrative Entity to make a payment(s) from the Hyde Park Unit Interior Fund to the entity which is responsible for making retrofits at Hyde Park to offset, at least in part, the total cost of retrofitting the covered ground-floor units at Hyde Park. Within thirty (30) days after receiving this written notification, the Administrative Entity shall deliver to counsel for the United States a check(s), from the escrow fund, payable as directed in the written notification. Any costs incurred in connection with the administration of the Hyde Park Unit Interior Fund shall be paid from the Hyde Park Unit Interior Fund.
   3. If at the end of the five (5) year term of this Consent Order any balance remains in the Hyde Park Unit Interior Fund, the Administrative Entity shall notify the United States in writing that a balance remains and the amount of any such balance. Within thirty (30) days of notifying the United States, the Administrative Entity shall deposit the remaining balance into the Residual Fund to be used as directed in Section VI.B.3 above.

1. Meridian Park, like Hyde Park, is an apartment complex in which the tenants of the covered ground-floor units hold only a lease and have no authority to modify the individual units and over which Hite has no ownership or control. Therefore, there are significant practical impediments to Hite's bringing these units and the public and common use areas into compliance with the Act. To address these violations, Hite has agreed to take the actions set forth below. These actions are reasonable and practicable and will increase the number of housing units on the market with features of accessible and adaptable design.
2. Within forty-five (45) days of the date of entry of this Consent Order, Hite shall pay the total sum of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) into an escrow fund ("Meridian Park Retrofit Fund") which shall be used to pay, at least in part, the costs of retrofitting the covered ground-floor units and the public and common use areas at Meridian Park. The Administrative Entity shall administer and distribute the Meridian Park Retrofit Fund in the following manner:
   1. The United States may seek an agreement with the owner(s) of Meridian Park, or an order from the Court requiring the owner(s) of Meridian Park, to retrofit or permit retrofitting of the covered ground-floor units and the public and common use areas at Meridian Park.
   2. If the United States receives such an agreement or order, the United States shall notify the Administrative Entity in writing of the order or agreement and direct the Administrative Entity to make a payment(s) from the Meridian Park Retrofit Fund to the entity which is responsible for making retrofits at Meridian Park to offset, at least in part, the total cost of retrofitting Meridian Park. Within thirty (30) days after receiving this written notification, the Administrative Entity shall deliver to counsel for the United States a check(s), from the escrow fund, payable as directed in the written notification. Any costs incurred in connection with the administration of the Meridian Park Retrofit Fund shall be paid from the Meridian Park Retrofit Fund.
   3. If at the end of the five (5) year term of this Consent Order any balance remains in the Meridian Park Retrofit Fund, the Administrative Entity shall notify the United States in writing that a balance remains and the amount of any such balance. Within thirty (30) days of notifying the United States, the Administrative Entity shall deposit the remaining balance into the Residual Fund to be used as directed in Section VI.B.3 above.

Players Club, like Hyde Park and Meridian Park, is an apartment complex in which the tenants of the covered ground-floor units hold only a lease and have no authority to modify the individual units and of which Hite has no ownership or control. Therefore, there are significant practical impediments to Hite bringing these units into compliance with the Act.

Based on the agreements to remedy Breezewood, Hyde Park Apartments and Meridian Park Apartments, and the prior settlement of claims against the developer of Players Club, the United States releases Hite from any pattern or practice claims it has with respect to any alleged design and construction violations of the Act at Players Club.

Defendant Hite shall pay the total sum of FIVE THOUSAND AND NO/100 DOLLARS ($5,000) to the United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C). Said sum shall be paid within thirty (30) days of 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. ⁽²⁾

Within thirty (30) days of the date of entry of this Consent Order, Hite shall provide to all its supervisory employees and other employees involved in the design of multi-family residential dwellings: (1) a copy of this Consent Order; and (2) instruction on (i) the terms of this Consent Order, (ii) the requirements of the Act with a particular emphasis on the Act's design and construction requirements, and (iii) their responsibilities and obligations under each. The instruction on the Act's design and construction requirements shall be conducted by a qualified person or organization approved by the United States. Any expenses associated with this training shall be borne by Hite. Each new supervisory employee or other employee involved in the design of multi-family residential dwellings retained by Hite during the term of this Order must comply with the above requirements within thirty (30) days after the date he or she commences an employment, agency, or contractual relationship with Hite, however, such training may be conducted by an employee of Hite with knowledge of the Act's design and construction requirements.

1. Within sixty (60) days after the date of entry of this Consent Order, Hite shall submit to counsel for the United States signed statements of current supervisory employees and other employees involved in the design of multi-family residential dwellings who have completed the educational program (see Section XI above).
2. Annually, during the term of this Order, Hite, as applicable, shall submit to counsel for the United States the signed statements of new supervisory employees or other employees involved in the design of multi-family residential dwellings who have completed the educational program during the most recent reporting period as required by Section XI above.
3. Hite shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written administrative or legal complaint against Hite or any of its employees or agents, regarding equal opportunity in housing. Hite shall also promptly provide the United States all information it may request concerning any such complaint.
4. For the term of this Consent Order, Hite is required to preserve all records related to this Consent Order, for all properties designed by Hite. Upon reasonable notice to Hite, representatives of the United States shall be permitted to inspect and copy any records of Hite bearing on compliance with this Consent Order at any and all reasonable times; provided, however, that the United States shall endeavor to minimize any inconvenience to Hite from such inspections.

1. This Consent Order shall remain in effect for five (5) years and six (6) months after the date of its entry.
2. The United States' Second Amended Complaint shall be dismissed with prejudice as to Hite, except that the United States may petition the Court, at any time during the duration of this Consent Order, to reopen the case for the purpose of enforcing the Consent Order, and this Court shall retain jurisdiction to enforce this Consent Order. The United States and Hite 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.

Any time limits for performance imposed by this Consent Order may be extended by the mutual written agreement of the United States and Hite.

The United States and Hite will bear their own costs and attorney's fees associated with this litigation.

It is so ORDERED this _________________ day of _________, 2003.

_________________________________
TERRENCE W. BOYLE
Chief Judge, United States District Court

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

FOR PLAINTIFF UNITED STATES:

FRANK D. WHITNEY
United States Attorney
RUDY RENFER
Assistant U.S. Attorney
Civil Division
310 New Bern Avenue
Suite 800
Raleigh, NC 27601-1461
(919) 856-4530

FOR DEFENDANT HITE/MSM, P.C.:

_____________________________
JOHN M. NUNNALLY
ANDREW C. BUCKNER
Ragsdale Liggett
2840 Plaza Place, Suite 400
Raleigh, North Carolina 27612
(919) 787-5200

Date: _________________________

FOR PLAINTIFF UNITED STATES:

RALPH F. BOYD, JR.
Assistant Attorney General

______________________________
JOAN A. MAGAGNA
Chief
ISABELLE M. THABAULT
Deputy Chief
SCOTT P. MOORE
DEBORAH A. GITIN
Trial Attorneys
Housing and Civil Enforcement Section
Civil Rights Division
United States Department of Justice- G St.
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 307-3801 (Scott P. Moore)
(202) 305-2020 (Deborah A. Gitin)

Date: _______________________

In consideration of the payment of the sum of _____________ dollars ($_______), pursuant to the Consent Decree entered in United States v. Quality Built Construction, Inc. f/k/a Dawn Construction, Inc., et al., Case Number 4:00-CV-194-H(3) (E.D. N.C.), I hereby release Hite/MSM, P.C., its representatives, servants, successors, shareholders, employees, officers, directors, heirs, administrators, executors, insurers, insureds, affiliates, and assigns from any and all liability for any claims, legal or equitable, I may have against Hite/MSM, P.C., its representatives, servants, successors, shareholders, employees, officers, directors, heirs, administrators, executors, insurers, insureds, affiliates, and assigns arising out of the issues alleged in the above-styled action.

I fully acknowledge and agree that this release of Hite/MSM, P.C. its representatives, servants, successors, shareholders, employees, officers, directors, heirs, administrators, executors, insurers, insureds, affiliates, and assigns shall be binding on my heirs, representatives, executors, successors, administrators, and assigns.

I acknowledge and agree that the above-referenced payment does not constitute and are not to be construed as an admission or acknowledgment of liability on the part of Hite, the liability of Hite being expressly denied.

I hereby acknowledge that I have read and understand this release and have executed it voluntarily and with full knowledge of its legal consequences.

____________________________
NAME

_____________________
DATE

NORTH CAROLINA

_________ COUNTY

On this ____ day of ______________, 20____, before me personally appeared_____________________ , to me known to be the person described herein and who executed the foregoing instrument and they acknowledged that they voluntarily executed the same.

________________________________

Notary Public

My commission expires: ___________

1. All units in buildings with elevators are "covered units" under the Act. See 42 U.S.C. § 3604(f)(7)(A).

2. For purposes of this Consent Order, counsel for the United States is Chief, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530, Attn: DJ# 175-54-131.