Housing And Civil Enforcement Cases Documents


Case No. 03-60233-CIV-JORDAN/BROWN

UNITED STATES OF AMERICA,

            Plaintiff,

vs.

ROBERT YANOFSKY, d/b/a/ SOUTH
BANK APARTMENTS,

            Defendant.

_________________________________/

CONSENT ORDER

Plaintiff, United States of America ("United States"), initiated this action on February 20, 2003, on behalf of Complainants Gina Gentile, Paul Dayton, and their daughter, Kayla Dayton, pursuant to Section 812 of the Fair Housing Act, and on behalf of other aggrieved persons pursuant to Section 814(a) of the Fair Housing Act, as amended 42 U.S.C. §§3612(o) and 3614(a), respectively. The Complaint alleged that Defendant, Robert Yanofsky d/b/a South Bank Apartments ("Mr. Yanofsky" or "Robert Yanofsky"), discriminated against the Complainants in the leasing of Apartment 216 at South Bank Apartments, and that Mr. Yanofsky engaged in a pattern or practice of discrimination on the basis of familial status in the rental of dwellings at South Bank Apartments, in violation of the Fair Housing Act, as amended, 42 U.S.C. §3601 et. seq. Subsequently, the United States alleged that Mr. Yanofsky also discriminated against Celeste and Christopher Hosto, Gina Bell and Michael Tetner, and Michela Martin.

South Bank Apartments is a rental apartment complex located in Fort Lauderdale, Florida and is owned by Mr. Yanofsky.

INTRODUCTION

Based upon an investigation by the Department of Housing and Urban Development (HUD) in 2002, it was determined that Complainant Gina Gentile ("Ms. Gentile") signed a lease and moved into Apartment 313 at the South Bank Apartments on September 1, 1992. At that time, Ms. Gentile had no children, and renewed her lease each year without incident. Although South Bank never qualified for the "housing for older persons" exemption under the Fair Housing Act, from March 12, 1989, the effective date of the familial status provision, until approximately August 2002, the terms of South Bank Apartment leases expressly prohibited children under the age of 18 from living in the apartments. Specifically, the lease contained the following language: "Further, Lessee(s) shall use and occupy the premises solely for the purpose of a residential dwelling for __ adult(s) and for no other purpose and for no other persons whatsoever. Children under the age of eighteen (18) years of age are prohibited from residing at South Bank Apartments." Mr. Yanofsky maintains that his former attorney improperly incorporated the provision prohibiting children into South Bank Apartments lease in 1991, and that he was unaware of the illegality of this provision until Gentile filed her claim in 2002. Paul Dayton ("Mr. Dayton") moved into South Bank Apartments with Ms. Gentile in 1998. Thereafter, on or about March 1, 2000, they transferred to unit 216. On May 30, 2001, Ms. Gentile gave birth to the couple's first child. Subsequently, Mr. Yanofsky learned that Ms. Gentile and Mr. Dayton had a minor child and on November 12, 2001, and again on January 14, 2002, Mr. Yanofsky sent Ms. Gentile a letter stating as follows:

This letter is to inform you that South Bank Apartments will not be renewing your lease which expires February 28, 2002. The lease agreement states that children under eighteen years of age are prohibited from residing at South Bank Apartments.

On or about April 26, 2002, Ms. Gentile filed a complaint with HUD alleging that she and Mr. Dayton were being discriminated against on the basis of familial status. HUD conducted an investigation and issued a Determination of Reasonable Cause and Charge of Discrimination, charging Mr. Yanofsky with engaging in discriminatory housing practices in violation of the Fair Housing Act. Thereafter, the United States filed this action in the United States District Court for the Southern District of Florida.

While this action was pending, former South Bank Apartment tenants, Gina and Michael Tetner ("the Tetners") alleged that in 1999, they received a letter shortly after their first child was born, informing them that their lease would not be renewed. The Tetners alleged that as a result of this letter, they moved out of South Bank Apartments sooner than they otherwise would have. Mr. Yanofsky denies that South Bank Apartments ever sent a letter to the Tetners advising them that their lease would not be renewed.

Additionally, Celeste and Christopher Hosto, also former South Bank Apartment tenants, alleged that they moved out of South Bank Apartments soon after their first child was born in 2002 because they knew of the lease provision prohibiting children and of the letters of non-renewal that Mr. Yanofsky had sent to Ms. Gentile and Mr. Dayton, and believed that they were required to leave.

When Michela Martin moved into South Bank Apartments in 1999, her lease provided that children under the age of eighteen (18) were prohibited from residing at South Bank Apartment. Ms. Martin was not pregnant, nor did she have children at that time. In 2002, South Bank Apartments updated its lease and eliminated the provision prohibiting children from residing at South Bank Apartments. In March 2003, and again in April 2004, Ms. Martin signed South Bank Apartment's updated lease, which did not contain the provision prohibiting children.

Ms. Martin alleged that in April 2004, after she learned she was pregnant, she had a conversation with Jim Murphy, who led her to believe that children still were not allowed at South Bank Apartments. Ms. Martin alleged that as a result of that conversation and other information, she began to look for a new apartment. South Bank Apartments and Mr. Murphy deny Ms. Martin's allegations.

In August 2002, Mr. Yanofsky hired a new attorney to revise South Bank Apartment's lease and ensure compliance with the Fair Housing Act. To that end, the provision prohibiting children was removed from South Bank Apartment's lease, and all tenants have since signed a lease that does not contain the provision prohibiting children. Additionally, in December 2002, Mr. Yanofsky and his daughters, Lisa Yanofsky, and Gayle Yanofsky Cohen, attended training to ensure future compliance with the Fair Housing Act.

The Parties have agreed to the entry of this Consent Order to amicably resolve all claims of the complainants and the other aggrieved persons and the United States of America against the Defendant and to avoid further expenses and the uncertainties of litigation.

JURISDICTION, SCOPE AND TERM OF CONSENT ORDER

1. The parties have consented to the entry of this Order. To this end, the Parties stipulate and the Court finds that this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§1331, 1345 and 42 U.S.C. §§3612(o), 3614(a).

a. This Consent Order is effective immediately upon its entry by the Court.

b. The Court shall retain jurisdiction over this action and over Mr. Yanofsky to ensure compliance with its terms for a period of two (2) years after the entry of the Consent Order.

NON-ADMISSION OF LIABILITY

2. By entering into this Consent Order, Mr. Yanofsky does not admit to any violation of the Fair Housing Act, 42 U.S.C. §§3601 et. seq. To the contrary, Mr. Yanofsky denies any and all liability under the Fair Housing Act. To that end, this Consent Order shall not constitute evidence, or an admission, or an adjudication with respect to any allegation of the Complaint or any fact or conclusion of law with respect to any matter concerning SBA.

GENERAL INJUNCTION

3. Mr. Yanofsky, his officers, agents, employees, successors and all persons in active concert or participation with him are enjoined, with respect to the rental of dwelling units at the South Bank Apartments, from:

a. Refusing to rent after the making of a bona fide offer, or refusing to negotiate for the rental of, or otherwise making unavailable or denying a dwelling to any person because of familial status;

b. Discriminating against any person in the terms, conditions, or privileges of rental of a dwelling, or in the provision of services or facilities in connection therewith, because of familial status;

c. Making, printing, or publishing, or causing to be made, printed, or published any notice, statement, or advertisement, with respect to the rental of a dwelling that indicates any preference, limitation, or discrimination based on familial status, or an intention to make any such preference, limitation, or discrimination; and

d. Coercing, intimidating, threatening, or interfering with any person in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected by 42 U.S.C. §3604.

AFFIRMATIVE RELIEF

4. Within thirty (30) days of the entry of this Consent Order, Mr. Yanofsky shall send a letter to all current tenants, informing them that families with children are permitted to live at South Bank Apartments and that any lease provision to the contrary is illegal and void and will not be enforced. Enclosed with the letter will be a full copy of this Consent Order. The United States must approve the text of this letter prior to its use.

5. For all future leases, Mr. Yanofsky will not use any language prohibiting families with children from living at South Bank Apartments.

6. Starting immediately with the entry of this Consent Order and for two (2) years, Mr. Yanofsky and/or his agent(s) shall inform all persons who inquire about renting an apartment at South Bank Apartments that families with children are permitted to live at South Bank Apartments.

MANDATORY EDUCATION AND TRAINING

7. Within thirty (30) days of the entry of this Consent Order, Mr. Yanofsky shall provide a copy of this Consent Order to the members of his staff who supervise or participate in the rental or management of apartment units, including but not limited to Jim Murphy and William Yanofsky, and secure the signed statement from each such person acknowledging that he or she has received and read the Consent Order, and had an opportunity to have questions about the Consent Order answered. This signed statement, which shall be substantially in the form of Appendix A, shall be provided to the United States.

8. During the term of this Consent Order, within thirty (30) days after the date he or she commences an agency or employment relationship with Mr. Yanofsky, each new member of Mr. Yanofsky's staff who supervises or participates in the rental or management of apartment units shall be given a copy of this Consent Order and be required to sign the statement acknowledging that he or she has received and read the Consent Order, and had an opportunity to have questions about the Consent Order answered. This signed statement, which shall be substantially in the form of Appendix A, shall be provided to the United States.

9. The United States acknowledges that Robert Yanofsky, Lisa Yanofsky and Gayle Yanofsky Cohen recently have completed fair housing training on the federal Fair Housing Act and local fair housing laws conducted by Housing Opportunities Project for Excellence, Inc. (H.O.P.E., Inc.) in Ft. Lauderdale, Florida. Within ninety (90) days of the date of entry of this Consent Order, Jim Murphy and William Yanofsky shall undergo training on the sections of the Fair Housing Act pertaining to discrimination on the basis of familial status. The training shall be conducted by a qualified party unconnected to Robert Yanofsky or his employees, agents or counsel, and any expenses associated with this training shall be borne by Robert Yanofsky. Robert Yanofsky shall provide to the United States, within thirty (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 certifications executed by the covered employees and agents confirming their attendance.

COMPENSATION OF AGGRIEVED PERSONS

10. Within thirty (30) days after the entry of this Order and receipt of a release in the form attached as Appendix B, Mr. Yanofsky shall pay to Complainants Gina Gentile and Paul Dayton the sum of forty thousand dollars ($40,000), provided that no amount shall be paid pursuant to this paragraph before Gina Gentile and Paul Dayton have executed a written release of all claims, legal or equitable, that they might have against Mr. Yanofsky relating to the claims asserted in this lawsuit and any claims that could have been asserted in this lawsuit, in the form attached as Appendix B.

11. Within thirty (30) days after the entry of this Order and receipt of a release in the form attached as Appendix B, Mr. Yanofsky shall pay to Celeste and Christopher Hosto the sum of eighteen thousand dollars ($18,000), provided that no amount shall be paid pursuant to this paragraph before Celeste and Christopher Hosto have executed a written release of all claims, legal or equitable, that they might have against Mr. Yanofsky relating to the claims asserted in this lawsuit and any claims that could have been asserted in this lawsuit, in the form attached as Appendix B.

12. Within thirty (30) days after the entry of this Order and receipt of a release in the form attached as Appendix B, Mr. Yanofsky shall pay to Michael and Gina Bell Tetner the sum of ten thousand dollars ($10,000), provided that no amount shall be paid pursuant to this paragraph before Michael and Gina Bell Tetner have executed a written release of all claims, legal or equitable, that they might have against Mr. Yanofsky relating to the claims asserted in this lawsuit and any claims that could have been asserted in this lawsuit, in the form attached as Appendix B.

13. Within thirty (30) days after the entry of this Order and receipt of a release in the form attached as Appendix B, Mr. Yanofsky shall pay to Michela Martin the sum of two thousand dollars ($2,000), provided that no amount shall be paid pursuant to this paragraph before Michela Martin executes a written release of all claims, legal or equitable, that she might have against Mr. Yanofsky relating to the claims asserted in this lawsuit and any claims that could have been asserted in this lawsuit, in the form attached as Appendix B.

14. The United States acknowledges and agrees that if any of the persons referenced in paragraphs 10-13 refuse and/or fail to sign the release in the form attached as Appendix B, Mr. Yanofsky shall not be required to provide that particular individual with the monetary payment identified above.

PAYMENT TO THE UNITED STATES TO VINDICATE THE PUBLIC INTEREST

15. In settlement of this suit and without agreeing that the claims asserted constitute a violation of the Fair Housing Act, Mr. Yanofsky shall make a payment to the United States to vindicate the public interest in the amount of five thousand dollars ($5,000), pursuant to 42 U.S.C. §3614(d)(1)(C). Such payment shall be made by check payable to the United States and shall be delivered to counsel for the United States within thirty (30) days after the date of entry of this Consent Order.

CLAIM PRECLUSION

16. By signing this Consent Order, the United States acknowledges and agrees that it will be precluded from attempting to pursue or relitigate in any fashion, any issue, claim, and/or request for monetary damages or injunctive relief against Mr. Yanofsky that the Department of Justice knew about and that was raised or that could have been raised in this action.

RECORD KEEPING AND REPORTING

17. During the term of this Order, Mr. Yanofsky agrees to establish and maintain inquiry logs regarding potential applicants (including name, telephone number, address, date of inquiry or call and type of unit desired) and to retain all rental records maintained for a two (2) year period beginning with the date of entry of this Order.

18. During the term of this Order, Mr. Yanofsky shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written or oral complaint against SBA regarding discrimination on the basis of familial status, or conduct prohibited by 42 U.S.C. §3617, and a description of the resolution of such complaint. If the complaint is written, Mr. Yanofsky shall provide a copy of it with the notice; if the complaint is oral, he shall include a written summary of it with the notice. The notice shall include the full details of the complaint, including the complainant's name, address, and telephone number. Mr. Yanofsky shall also promptly provide the United States all information it may request concerning any such complaint and its actual or attempted resolution.

COURT JURISDICTION

19. This case is dismissed with prejudice, except that the Court shall retain jurisdiction for two (2) years from the date of entry of this Order to enforce the terms of this Order. The United States may move the Court to extend the duration of the Order, if it reasonably determines that the Defendant has violated one or more terms of the Order or if the interests of justice otherwise require an extension of the terms of the Order.

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 the Defendant to perform in a timely manner any act required by this Consent Order or in the event the Defendant violates any provision of this Consent Order, 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.

ORDERED this _____ day of _______________________, 2004.

______________________________________
ADALBERTO JORDAN
UNITED STATES DISTRICT COURT JUDGE

Copies furnished:
Veronica Harrell-James, AUSA
>David I. Spector, Esq.

The terms of this Consent Order have been agreed to by the parties, as indicated by the signatures of counsel below and the duly authorized representative of the Defendant, Robert Yanofsky, d/b/a South Bank Apartments, and the parties request the entry of this Consent Order:

FOR THE UNITED STATES

MARCOS DANIEL JIMENEZ
UNITED STATES ATTORNEY

By: ______________________________
Veronica Harrell-James
Assistant U.S. Attorney
99 N.E. 4th Street, 3rd Floor
Miami, Florida 33132
Fla. Bar No.: 644791
Tel. No.: (305) 961-9327
Fax No.: (305) 530-7139

FOR DEFENDANT YANOFSKY:

STEEL HECTOR & DAVIS, LLP

By: ____________________________
David I. Spector
777 South Flagler Drive
1900 Phillips Point West
West Palm Beach, Florida 33401
Fla. Bar No.: 086540
Tel. No.: (561) 650-7274
Fax No.: (561) 655-1509

______________________________
Robert Yanofsky
d/b/a South Bank Apartments


APPENDIX A

_____________________________I, ____________________________________, have received a copy of the Consent Order in United States v. Robert Yanofsky, d/b/a South Bank Apartments, Civil Action No. 03-60233 (S.D. Fla.). I have read this document carefully, had a chance to ask questions about the document and have them answered, and have understood its contents. I agree to act in accordance with this document and the provisions of the Fair Housing Act.

__________________________
(Signed)


APPENDIX B

RELEASE

IN CONSIDERATION of the promises set forth below, and in order to avoid further time, expense and effort associated with the action styled United States of America v. Robert Yanofsky d/b/a South Bank Apartments, Case No. 03-60233-CIV-Jordan/Brown, Robert Yanofsky d/b/a South Bank Apartments ("SBA") and __________________ enters into this Release (the "Release") and agrees as follows:

1. __________________, for herself, her heirs, assigns and personal representatives, unconditionally fully and forever releases, acquits and discharges SBA and each of its present and former owners, shareholders, principals, employees, officers, directors, agents, administrators, representatives, fiduciaries, independent contractors, committees, assigns and attorneys, both in their representative and individual capacities (hereinafter the "Released Parties"), from any and all issues, charges, claims, demands, actions, and causes of action of every kind, nature or description arising out of, or in connection with the facts or claims raised, or which could have been raised, in United States of America v. Robert Yanofsky d/b/a South Bank Apartments, Case No. 03-60233-CIV-Jordan/Brown.

This release includes, but is not limited to, any and all claims for discrimination and/or harassment, retaliation, and/or any and all claims under any federal, state or local statutes, rules, regulations or ordinances arising out of, or in connection with the facts or claims raised, or which could have been raised, in United States of America v. Robert Yanofsky d/b/a South Bank Apartments, Case No. 03-60233-CIV-Jordan/Brown.

Additionally, this release is intended to include all causes of action, including, but not limited to, any claim growing out of any purported written or oral contractual obligations or limitations, express or implied, any constitutional claims, any common law tort claims, including any claim for defamation, infliction of emotional distress, false light/invasion of privacy, or negligent supervision or retention, any and all claims under any other state, federal or local statute, rule or regulation, any common law cause of action, as well as all equitable claims, including claims for attorneys' fees and costs, by reason of any matter, cause, act or omission arising out of, or in connection with the facts or claims alleged raised, or which could have been raised, in United States of America v. Robert Yanofsky d/b/a South Bank Apartments, Case No. 03-60233-CIV-Jordan/Brown.

2. In consideration for the promises made herein and in full and final settlement and in satisfaction of any and all claims __________________ had, had or could have had arising out of, or in connection with the facts or claims raised in United States of America v. Robert Yanofsky d/b/a South Bank Apartments, Case No. 03-60233-CIV-Jordan/Brown, SBA shall pay __________________ _______Thousand Dollars and No Cents ($X,000.00) ("Settlement Payment") as denominated below, which is in full settlement of any and all claims and monies that __________________ claims to be entitled to from SBA arising out of, or in connection with the facts or claims raised, or which could have been raised, in United States of America v. Robert Yanofsky d/b/a South Bank Apartments, Case No. 03-60233-CIV-Jordan/Brown, including claims for compensation of any kind, including lost wages, compensatory damages, punitive damages, and/or attorneys' fees and costs. SBA and __________________ agree that payment of this Settlement Payment will be effectuated by the tender and cashing of a check in the total amount of $X,000.00, made payable to __________________.

3. __________________ agrees that this Settlement Payment is made in exchange for, and constitutes good and valuable consideration for, her execution of this Release, and that she is not otherwise entitled to the amount set forth in paragraph 2.

4. Nothing in this Release shall be construed as an admission of liability by SBA. Indeed, any and all liability is expressly denied. SBA specifically denies the allegations that it engaged in any wrongful conduct as alleged by __________________.

5. Except as expressly provided for in paragraph 2, each side agrees to bear its own attorneys' fees and costs in this matter.

6. It is further understood and acknowledged by __________________ and SBA that the terms of this Release are contractual and not a mere recital, that this Release contains the entire agreement of __________________ and SBA hereto, and supercedes any other agreement whether oral or written, except for the terms of the Consent Decree that the United States and SBA will ask to be entered in United States of America v. Robert Yanofsky d/b/a South Bank Apartments, Case No. 03-60233-CIV-Jordan/Brown. SBA and __________________ represent that there are no agreements, understandings or representations that have been executed or made by __________________ or SBA, except as expressly stated herein.

7. Except for enforcement of this Release, if __________________ should later initiate any legal action or proceeding against SBA for any claim relating to or arising out of the facts or claims raised or which could have been raised in United States of America v. Robert Yanofsky d/b/a South Bank Apartments, Case No. 03-60233-CIV-Jordan/Brown, this Release will be conclusive evidence that any such claims have been released.

8. By executing this Release, __________________ affirms that is competent to do so, and understands and accepts the nature, terms, and scope of this Release as fully resolving any differences and disputes arising out of or in connection with the facts or claims raised or which could have been raised related in United States of America v. Robert Yanofsky d/b/a South Bank Apartments, Case No. 03-60233-CIV-Jordan/Brown. Further, this Release is acknowledged to be the free act of __________________ and SBA, each of whom is authorized to enter into this Release and has had a reasonable time to consider it before signing and to consult with counsel regarding its terms, and each represents that he or she knowingly and voluntarily is entering into this Release.

9. This Release shall be governed by applicable Florida law. The exclusive venue for any action brought to enforce this Release shall be in the United States District Court for the Southern District of Florida, Miami Division.

10. In the event an action is brought to enforce this Release, or any portion thereof, the prevailing party shall be entitled to recover its or his reasonable fees, costs, and expenses, including attorneys' fees.

11. It is further understood and acknowledged by __________________ and SBA that, in the event a court of competent jurisdiction finds that any portion of this Release is invalid, the other provisions shall remain in full force and effect.

12. This Release may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

13. This Release is binding on SBA and __________________ and their respective heirs, successors and assigns. However, notwithstanding this or any other provision in this Release, this Release is contingent on the entry by the Court of the Consent Decree to be tendered to the Court by SBA and the United States in United States of America v. Robert Yanofsky d/b/a South Bank Apartments, Case No. 03-60233-CIV-Jordan/Brown. If the Court does not enter the consent decree, this Release is totally invalid and no portion of it binds either SBA or __________________.

NO FURTHER PROVISIONS

_______________________________________

IN WITNESS WHEREOF, the following have executed this Release.

DATED: ____________________________

__________________

STATE OF _____________ )

) ss:

COUNTY OF _________ )

The foregoing instrument was acknowledged before me this ________________day of ____, 2004, by ______________________, who is personally known to me or who has produced ________ as identification.

_____________________________

NOTARY PUBLIC

Name: _______________________________

Commission Number: __________________________________

Expires: ________________

DATED: ___________________

__________________________
Robert Yanofsky, d/b/a South Bank Apartments
By: Robert Yanofsky

STATE OF FLORIDA

) ss:

COUNTY OF MIAMI-DADE )

The foregoing instrument was acknowledged before me this _____________________ day of ____, 2004, by __________ who is personally known to me or who has produced ________________________________ as identification.

NOTARY PUBLIC

Name: _________________________________

Commission Number:_____________________________

Expires:___________________


Document Filed: July 30, 2004. > >
Updated August 6, 2015

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