R. Alexander Acosta
Assistant Attorney General
Steven H. Rosenbaum
Donna M. Murphy
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section - NWB
950 Pennsylvania Ave
Washington, D.C. 20530
202-514-1116 - fax
Daniel G. Bogden
United States Attorney
Blaine T. Welsh
Assistant U.S. Attorney
333 Las Vegas Boulevard
Las Vegas, NV 89101
702-388-6787 - fax
Attorneys for Plaintiff United States
CLARK COUNTY LEGAL SERVICES PROGRAM, INC.
Daniel D. Ebihara (NV Bar No. 6280)
Sara V. Winter (NV Bar No. 6174)
800 South Eighth Street
Las Vegas, NV 89101-7051
702-366-0569 - fax
BRANCART & BRANCART
Christopher Brancart (CA Bar No. 128475)
Elizabeth Brancart (CA Bar No. 122092)
Post Office Box 686
Pescadero, California 94060
650-879-1103 - fax
Attorneys for Plaintiff Nevada Fair Housing Center, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
UNITED STATES OF AMERICA,
Plaintiff,Civil Action No.
WILMARK DEVELOPMENT CO.;
MARK SCHMIDT CONSTRUCTION;
WLW of NEVADA, INC.; DE LUNA,
INC.; and GREEN VALLEY COUNTRY
CLUB LIMITED PARTNERSHIP,
NEVADA FAIR HOUSING
CENTER, INC.; et al.,
PARTNERSHIP, etc., et al.,
Plaintiffs United States and Nevada Fair Housing Center (plaintiffs) and defendants Wilmark Development Co.; Mark Schmidt Construction; WLW of Nevada, Inc.; Green Valley Country Club Limited Partnership; Wilmark Corporation of Nevada; and Wilmark Management Services (defendants) agree to the terms of this Consent Decree resolving the Complaint filed by the United States in case number CV-S-02-1468-LRH(RJJ) and the Complaint filed by Nevada Fair Housing Center in case number CV-S-01-0996-JCM(RJJ).
On August 23, 2001, Nevada Fair Housing Center and Frances Verso and Ettilio Verso filed their Complaint alleging violations of Sections 804(f)(1), (f)(2), (f)(3)(B) and (f)(3)(C) of the Fair Housing Act, 42 U.S.C. §§ 3604(f)(1)(C), (f)(2), (f)(3)(B) and (f)(3)(C) as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619 (the Act). Specifically, these plaintiffs' Complaint alleges that defendants Wilmark Development Co.; Mark Schmidt Construction; Wilmark Corporation of Nevada; Wilmark Management Services; and Green Valley Country Club Limited Partnership have engaged in a pattern or practice of discrimination by failing to make reasonable accommodations and by failing to design and construct Green Valley Country Club Apartments in accordance with the design and construction requirements of the Act. Mr. and Mrs. Verso have settled and dismissed their claims. (See Docket No. 55.)
On November 7, 2002, the United States filed its Complaint alleging violations of Sections 804(f)(1), (f)(2), and (f)(3)(C) of the Fair Housing Act, 42 U.S.C. §§ 3604(f)(1)), (f)(2) and (f)(3)(C) as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619. Specifically, the United States Complaint alleges that defendants Wilmark Development Co.; Mark Schmidt Construction; WLW of Nevada, Inc.; and De Luna, Inc. have engaged in a pattern or practice of discrimination by failing to design and construct Green Valley Country Club Apartments (Green Valley) with the features of accessible and adaptable design set forth in 42 U.S.C. § 3604(f)(3)(C). Green Valley Country Club Limited Partnership, which currently owns Green Valley, is named as a defendant in this action solely as a necessary party for relief.
Green Valley is an apartment complex located in Henderson, Nevada, containing a total of 412 apartments. The complex was built in two phases. Phase I consists of 22 buildings and was constructed for first occupancy before March 13, 1991. Phase I of Green Valley contains no units which are covered units and subject to the Fair Housing Act. Phase II consists of nineteen buildings containing 204 units, 90 of which are located on the ground-floor. All of the dwelling units in Phase II of Green Valley that are the subject of this lawsuit were designed and constructed for first occupancy after March 13, 1991. These units and the public and common use areas of Phase II of Green Valley are subject to the design and construction requirements of 42 U.S.C. § 3604(f)(3)(C).
The ground-floor apartments of Phase II at Green Valley are "covered multi-family dwellings" within the meaning of the Act, 42 U.S.C. § 3604(f)(7)(B). In general, the Act requires that, for residential buildings with four or more units, all ground-floor units in non-elevator buildings include certain basic accessibility and adaptability design features intended to make housing usable or adaptable by a person who is or who becomes disabled. Accordingly, 90 of the 204 units of Phase II at Green Valley are "covered"units under the Act.
The Act provides that all ground-floor units, in non-elevator buildings (with four or more units) designed and constructed for first occupancy after March 13, 1991, are "covered units" and must include certain basic features of accessible and adaptable design to make such units usable by a person who is or who becomes disabled. 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(B). The features of accessible and adaptable design required by the Act include: (a) public and common use areas that are readily accessible to and usable by persons with disabilities; (b) doors for 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 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 in a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C).
Wilmark Development Company was the owner and developer of Phase II of Green Valley. Mark Schmidt Construction built Phase II of Green Valley. WLW of Nevada, Inc. provided certain architectural design for all of Green Valley. De Luna, Inc. provided the civil engineering services for and designed Phase II of Green Valley. Green Valley Country Club Limited Partnership now owns Green Valley.
The parties agree that this Court has jurisdiction over the subject matter of this case. During the course of the proceedings, defendants raised various defenses to portions of the above claims. The parties negotiated a settlement such that the controversy will be resolved without further proceedings and without an evidentiary hearing. Therefore, the parties have jointly consented to the entry of this Consent Decree as indicated by the signatures appearing below.
It is hereby ORDERED, ADJUDGED and DECREED:
I. GENERAL INJUNCTION
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 Fair Housing Act, 42 U.S.C. § 3604(f)(1)-(3).
II. CORRECTIVE ACTIONS
Defendants Wilmark Development Co., Mark Schmidt Construction, and WLW of Nevada, Inc. recognize that certain features of the ground-floor apartments and public and common use areas of Phase II at Green Valley have not met the Act‚s design and construction requirements. To address these deficiencies, Green Valley Country Club Limited Partnership (GVCCLP) agrees to take the following corrective actions with respect to the covered ground-floor dwellings and the public and common use areas of Phase II at Green Valley.
Defendants Wilmark Development Co.; Mark Schmidt Construction; WLW of Nevada, Inc.; and GVCCLP have agreed to pay the sum of SEVEN HUNDRED EIGHTEEN THOUSAND DOLLARS ($718,000) (the Corrective Cost) in order to settle the violations of the Act alleged by the United States. Within thirty (30) days from the date of entry of this Decree, these defendants shall deposit the Corrective Cost in a separate interest-bearing escrow account (the Fund), and will provide the United States with the name of the depository institution and any information it requests periodically on the Fund. As to the allocation of the Corrective Cost, GVCCLP will contribute the sum of ONE HUNDRED FORTY THREE THOUSAND FIVE HUNDRED DOLLARS ($143,500) and WLW of Nevada, Inc. will contribute the sum of FIVE HUNDRED SEVENTY FOUR THOUSAND FIVE HUNDRED DOLLARS ($574,500). Defendant GVCCLP has contracted with an entity (Entity) approved by plaintiffs to administer the Fund and to assist in contracting with licensed contractors to take the corrective actions described in this Section and Appendices A and B with respect to the public and common use areas and the covered ground-floor dwellings. (See Appendix G.)
The actual contracts with licenced contractors to perform the work provided for herein shall be contracts which give standard contracting protections to GVCCLP on forms reasonably acceptable to GVCCLP. The Entity has provided Defendant GVCCLP with a guarantee that the corrective cost is adequate to perform the required corrective actions referred to above. The Entity will be required to obtain appropriate lien releases before making any payments from the Fund for services, labor, and/or materials. The parties agree that the items described in this Section and Appendices A and B are the only actions necessary in order to bring the common areas and covered units into substantial compliance with the requirements of the Act and the Guidelines. The parties agree that the actions by defendants to pay the Corrective Cost and to contract and cooperate with the Entity to perform the repairs will satisfy the repair requirements set forth herein. The parties also agree that defendants will not be required to pay more for the Corrective Cost even if ultimately the cost to complete all scheduled work should be greater than such amount. Defendant GVCCLP shall cooperate with the Entity to carry out the corrective actions specified herein.
A. Public and Common Use Areas
Within sixty (60) days of the entry of this Decree, GVCCLP shall provide written notice to all residents of Green Valley that the modifications specified at Appendix A will be performed to the public and common use areas at Green Valley. Such notice shall conform with Appendix C.
Within 90 (ninety) days from the date of entry of this Decree, modifications to the public and common use areas of Green Valley shall commence as specified in Appendix A. These modifications shall be completed within six months thereafter.
B. Dwelling units
Within fifteen (15) days prior to commencing work on any occupied covered ground-floor unit, GVCCLP, in conjunction with the Entity, shall provide written notice to the affected ground-floor unit residents at Green Valley that the modifications specified at Appendix B will be performed to their units. Such notice shall conform with Appendix D and shall be sent with a self-addressed postage prepaid envelope and a list specifying what alterations will be made in their specific unit. A copy of the notice shall be simultaneously provided to The United States. Retrofits of all ground-floor units shall be completed expeditiously but no later than three (3) years from the date of entry of the Consent Decree. It is the intent of the parties to complete the repairs in a methodical fashion and to the extent possible to perform repairs in vacant units between tenancies. In this regard, the Entity will be required to perform all repairs in a given unit within fifteen (15) days of receiving written notification of an available unit by GVCCLP.
C. Sale or Transfer of an Ownership Interest in the Subject Property
The sale or transfer of ownership, in whole or in part, of Green Valley shall not affect defendants' continuing obligations to retrofit the property as specified in this Consent Decree. Should defendant GVCCLP decide to sell or transfer ownership, in whole or in part, of any of Green Valley prior to the completion of the retrofits specified in Appendices A and B, it will, at least thirty (30) days prior to completion of the sale or transfer, (a) provide to each prospective buyer written notice that the complexes are subject to this Consent Decree, including specifically defendants' obligations to complete required retrofit work, along with a copy of this Consent Decree; and (b) provide to the United States, by facsimile and first class mail, written notice of its intent to sell or transfer ownership, along with a copy of the notice sent to each buyer, and each buyer's name, address and telephone number.
III. NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION
For a period of four (4) years from the date of entry of this Consent Decree, defendants Wilmark Development Co. and Mark Schmidt Construction; WLW of Nevada, Inc. shall each submit to the United States information regarding any covered multifamily dwellings that defendants design and/or intend to build. (1) The following information shall be submitted: a) the name and address of the project; b) a description of the project and the individual units, including number and type of dwellings and amenities in the project; c) the names and addresses of all architects and site engineers; d) when the site engineer is specifically employed by any of the above defendants, a statement from the site civil engineer(s) involved with the project acknowledging and describing his/her knowledge of and training in the requirements 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 the design specifications therein fully comply with the accessibility requirements of 42 U.S.C. § 3604(f)(3)(C) and the Guidelines; and e) when the architect is specifically retained by any of the above defendants, a statement from the architect acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act and in the field of accessible design and certifying that he/she has reviewed the plans and that the design specifications therein fully comply with the accessibility requirements of 42 U.S.C. § 3604(f)(3)(C) and the Guidelines.
IV. EDUCATIONAL PROGRAM
A. Within thirty (30) days of the entry of this Decree, defendants shall provide to all their upper level supervisory employees and site managers involved in the actual design or construction of multi-family dwellings covered by the Act: (1) a copy of this Consent Decree and (2) instruction on (I) the terms of this Consent Decree, (ii) the requirements of the Act with regard to non-discrimination against persons with disabilities and design and construction, and (iii) their responsibilities and obligations under each. All upper level supervisory design or construction personnel and site managers at Green Valley shall be required to attend training as provided in Section VII(B) below. The training shall be conducted by a qualified person or organization unconnected to defendants, their employees, agents, or counsel. Any expenses associated with this training shall be borne by the applicable defendants. This training may be conducted as part of the first annual training session required by Paragraph VII(B)(3), so long as it occurs within the thirty (30) days specified in this Paragraph.
B. Within thirty (30) days after each new upper level supervisory employee or site manager involved in the actual design or construction of multi-family dwellings covered by the Act commences an employment, agency, or contractual relationship with defendants, defendants will provide such employees a copy of this Consent Decree and shall secure and deliver to counsel for the United States a signed statement from each such employee or site manager that he or she has received, read, and understands this Decree.
V. PUBLIC NOTICE OF NON-DISCRIMINATION POLICY
A. During the term of this Decree, defendant GVCCLP shall post and prominently display the federal Fair Housing Poster as described by 24 C.F.R. 110.15 and 110.25 in the sales or rental offices of all dwellings owned or operated by them, if any, and in any other place in which persons may inquire about renting dwellings from them.
B. For the duration of this Consent Decree, in all future advertising in newspapers where the advertisement is more than two square inches, and on pamphlets, brochures and other promotional literature regarding Green Valley or any new covered complexes that any defendant may develop or construct, defendants 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.
VI. ADDITIONAL MONITORING REQUIREMENTS
A. For the duration of this Decree, defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any new and initial formal or informal complaint against them, their employees or agents, regarding discrimination regarding housing on the basis of disability under the Act. These defendants shall also promptly provide the United States all non-privileged information it may request concerning any such complaint. Within fifteen (15) days of the resolution of any such complaints, defendants shall advise counsel of the United States of such resolution.
B. For the duration of this Decree, defendants are required to preserve all records related to this Decree regarding Green Valley and all future covered multifamily dwellings to be 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 of defendants' non-privileged records or inspect any covered dwelling or any covered public and common use areas under defendants' control at reasonable times so as to determine compliance with the Consent Decree.
C. Within 180 days after the entry of this Decree, and thereafter on the anniversary of entry of this Decree throughout the term of the Decree, defendants shall submit a report that includes the following information:
- The signed statement of each upper level supervisory employee, or site managers acknowledging that he/she has received the required information and training under the Decree;
- A signed copy of Appendix F by each employee involved in site or rental management at Green Valley; and
- All current advertising in excess of two square inches or other promotional literature regarding these defendants' covered multifamily dwellings.
D. Provided that GVCCLP commences to perform hereunder and continues to pursue the completion of the repairs called for here in, plaintiff NFHC, on behalf of itself, agrees not to file any future private claim or complaint with the U.S. Department of Housing and Urban Development under the Fair Housing Act on behalf of itself or any individual, arising out of any claim regarding whether the covered between the parties. The parties, and each of them, acknowledge that they are aware that they may hereafter discover facts inunits or common area of Green Valley were designed or constructed in compliance with 42 U.S.C. § 3604(f)(3)(C) of the Act.
VII. PROVISIONS REGARDING
PLAINTIFF NEVADA FAIR HOUSING CENTER
The provisions in this section of the Consent Decree shall not apply to the United States.
A. Monetary Provisions
GVCCLP in case number CV-S-01-0996-JCM(RJJ), except De Luna, Inc., shall make a payment of ONE HUNDRED THREE THOUSAND DOLLARS ($103,000) to plaintiff Nevada Fair Housing Center (NFHC) in the form of checks made payable to the Attorney-Client Trust Account of Brancart & Brancart. This payment shall be made within fifteen (15) days of the date of entry of this Consent Decree. This payment shall consist of a settlement amount of TWENTY THOUSAND DOLLARS ($20,000) to NFHC, and a settlement amount of EIGHTY THREE THOUSAND DOLLARS ($83,000) in payment of NFHC's attorneys' fees and costs. (2)
Except for any obligations or duties created herein, the parties in Case No. CV-S-01-0996-JCM(RJJ), except De Luna, Inc., on their own behalf, and on behalf of their respective heirs, estates, successors, assignees, administrators, executors, officers, directors, partners, principals, employees, agents, attorneys, affiliates, parent or subsidiary corporations, and any other person or entity acting on their behalf, release each other, from any and all actions, causes of action, judgments, liens, objections, indebtedness, costs, damages, losses, claims, liabilities, and demand of any kind whatsoever which they heretofore had, now has or hereafter may have against the others by reason of any act, omission, event, contract, condition, agreement, representation, misrepresentation, report, disclosure, failure to disclose, warranty or transaction arising out of or in any way connected with Green Valley. Nothing contained herein is intended to act as a release with respect to any other project addition to or different from those which they now know or believe to be true with respect to the subject matter of this Agreement, but it is their intention hereby to fully and finally forever settle and release any and all matters, disputes, and differences, known or unknown, now existing or which heretofore have existed between them, and that in furtherance of this intention, the releases herein given shall remain in effect as full and complete releases notwithstanding discovery or existence of any such additional or different facts.
Each party in Case No. CV-S-01-0996-JCM(RJJ) declares and represent that this Agreement is being made without relying on any statements or representations by any other party which are not contained herein. Each party further declares and represents that he or she has made such investigation of the facts relating to the matters addressed in this Consent Decree as he or she deems necessary.
In entering into this Agreement and the settlement provided for herein in Case No. CV-S-01-0996-JCM(RJJ), each party assumes the risk of any misrepresentation, concealment or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this Agreement was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including, without limitation on the generality of the foregoing, any alleged right or claim to set aside or rescind this Agreement. This Agreement is intended to be and is final and binding between the parties hereto, regardless of any claims of misrepresentation, promise made without the intention to perform, concealment of fact, mistake of fact or law, or of any other circumstance whatsoever.
B. Affirmative Relief
Defendants Green Valley County Club Partnership, Wilmark Development Company, Mark Schmidt Construction, Wilmark Corp. of Nevada, and Wilmark Management Services, Inc. in case number CV-S-01-0996-JCM(RJJ) (NFHC defendants), their employees, agents and all others acting on its behalf shall comply with the following terms during the duration of this decree:
- The NFHC defendants shall adopt a written policy regarding reasonable modifications and reasonable accommodations for Green Valley; specifically, the policy shall be reviewed and approved by plaintiff NFHC, and once it is reviewed and approved, shall be distributed to each current and future household that occupies a dwelling at Green Valley during the duration of this decree.
- The NFHC defendants shall distribute an official Form HUD-903.1 pamphlet to each current and future household that occupies a dwelling at Green Valley during the duration of this decree.
- The NFHC defendants shall require fair housing training once per year for each of the next three years, conducted by NFHC, for all persons involved in site or rental management at Green Valley and require each attendee to execute a copy of Appendix F hereto. The duration of each annual training session shall be less than one day with a total cost of $500.00 per training group.
- Within thirty (30) days after the entry of the Consent Decree, the NFHC defendants shall distribute information to each household that occupies a dwelling at Green Valley explaining their rights under the Fair Housing Act, including the rights of persons with disabilities to reasonable accommodations and reasonable modifications. Distribution of the information in subparagraph VI(B)(1) and (2) above will satisfy this requirement.
VIII. DURATION OF DECREE AND TERMINATION OF LEGAL ACTION
A. This Consent Decree shall remain in effect for four and one-half (4 ½) years after the date of its entry.
B. By consenting to entry of this Decree, the United States and defendants agree that in the event that defendants engage in any future violation(s) of the disability provisions of the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(A)-(C), in any construction or ownership beginning after entry of the Decree, such violation(s) shall constitute a "subsequent violation" pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii).
C. The parties agree that the complaint against De Luna, Inc. may be dismissed without prejudice and that no releases are being granted to De Luna, Inc. The Court shall retain jurisdiction for the duration of this Consent Decree to enforce the terms of the Decree as to all other parties, after which time the case shall be dismissed as to such parties with prejudice. Plaintiffs may move the Court to extend the duration of the Decree in the interests of justice.
D. The plaintiffs and defendants 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 conformance with any provision thereof, plaintiffs 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.
IX. TIME FOR PERFORMANCE
Any time limits for performance imposed by this Consent Decree may be extended by the mutual agreement of plaintiffs and the relevant defendants.
X. COSTS OF LITIGATION
The United States and defendants shall bear their own costs and attorney's fees associated with this litigation.
IT IS SO ORDERED:
This ______ day of _________________, 2004.
United States District Judge
Agreed to by the parties as indicated by the signatures of counsel below.
FOR THE PLAINTIFF UNITED STATES:
DANIEL G. BOGDEN
United States Attorney
BLAINE T. WELSH
Assistant United States Attorney
STEVEN H. ROSENBAUM
DONNA M. MURPHY
SUNNY E. PIETRAFESA
United States Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section - G St.
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
202-514-1116 - fax
FOR PLAINTIFF NEVADA FAIR HOUSING CENTER:
DANIEL D. EBIHARA (NV Bar No. 6280)
CLARK COUNTY LEGAL SERVICES PROGRAM, INC.
800 South Eighth Street
Las Vegas, NV 89101-7051
702-366-0569 - fax
BRANCART & BRANCART
Post Office Box 686
Pescadero, California 94060
605-879-1103 - fax
FOR DEFENDANTS WILMARK DEVELOPMENT CO., MARK SCHMIDT CONSTRUCTION, WILMARK CORPORATION OF NEVADA, WILMARK MANAGEMENT SERVICES, AND GREEN VALLEY COUNTRY CLUB LIMITED PARTNERSHIP:
JOHN SMAHA, Esq.
Smaha & Daley
7860 Mission Center Court, Suite 100
San Diego, CA 92108
619-688-1558 - fax
FOR DEFENDANT WLW of NEVADA, INC.:
RICHARD E. DESRUISSEAUX, Esq.
MAX CORRICK, Esq.
Rawlings, Olson, Cannon, Gormley & Desruisseaux
9950 West Cheyenne
Las Vegas, NV 89129
702-383-0701 - fax
1. All submissions to the United States or its counsel shall be made to: U.S. Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section - G St., 950 Pennsylvania Avenue, NW, Washington, D.C. 20530. Attn: DJ No. 175-46-108 or as otherwise directed by the United States.
2. The parties do not include the Versos who have settled with defendants and whose complaint has been dismissed with prejudice.
Document Entered: November 29, 2004. > >