Housing And Civil Enforcement Cases Documents

UNITED STATES OF AMERICA,
     Plaintiff,

v.

A. WADDELL NEJAM, ALICE PERRY
and ANN B. SUMRALL
     Defendants,

STATE AUTOMOBILE MUTUAL
INSURANCE COMPANY
     Intervenor

_________________________________

The United States initiated this action on November 18, 1998, pursuant to § 814 of the Fair Housing Act, 42 U.S.C. § 3614, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 et seq. ("the Act"). The United States alleges that Defendants A. Waddell Nejam, Alice Perry and Ann B. Sumrall engaged in a pattern or practice of discrimination against African-Americans because of their race or color in the rental of dwellings at A. Waddell Nejam Properties, Jackson, Mississippi, in violation of the Act, 42 U.S.C. § 3604. Defendants have filed answers in this matter and have at all times denied the allegations of the United States. The agreement to and entry of this Order does not constitute an admission by any Defendant of any wrongdoing.

Defendant A. Waddell Nejam owns and manages rental properties in the Belhaven and Belhaven Heights sections of Jackson, Mississippi under the name A. Waddell Nejam Properties (hereinafter "Nejam Properties"). Defendants Alice Perry and Ann B. Sumrall were, at a time pertinent to the allegations in the complaint, leasing agents for Nejam Properties.

The parties agree that to avoid costly and protracted litigation this dispute should be resolved without the necessity of an evidentiary hearing. Therefore, the parties have waived a hearing and the entry of findings of fact and conclusions of law and have agreed to the entry of this Consent Order, as indicated by the signatures appearing below. Defendants and the United States agree that in the event of any future adjudication that any of the Defendants has engaged in a violation(s) of the Act, such violation shall constitute a "subsequent violation within the meaning of 42 U.S.C. § 3612(g)(3) or 3614(d).

Accordingly, it is hereby ORDERED, ADJUDGED and DECREED:

1. INJUNCTION
   1. Defendants A. Waddell Nejam, Alice Perry and Ann B. Sumrall, their agents, employees, successors, and all persons in active concert or participation with them are permanently enjoined, with respect to the rental of apartments at Nejam Properties and at any other location at which Defendants engage in the rental of dwellings from:
      1. Refusing to rent a dwelling, refusing to negotiate for the rental, refusing or failing to provide information about the availability of a dwelling, or otherwise making unavailable or denying a dwelling to any person because of race or color;
      2. Imposing different terms, conditions or privileges in the rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race or color;
      3. Representing to any person because of their race or color that any dwelling is not available for inspection or rental when such dwelling is, in fact, available; and
      4. Engaging in any other discriminatory housing practice prohibited by the Fair Housing Act, as amended, 42 U.S.C. §§ 3601 et seq.
2. PROCEDURES FOR ACCEPTING AND PROCESSING APPLICATIONS
   2. Defendant Nejam shall adopt and implement objective, uniform, non-discriminatory standards and procedures for the processing of applications and the establishment of waiting lists as set forth in Paragraph 3. These standards and procedures shall be made available upon request to any applicant for a rental unit.
   3. Defendant Nejam shall, with respect to dwellings rented at Nejam Properties:
      1. Maintain an accurate list of all dwellings known or expected to be available for rental ("availability list"), including for each unit for which Nejam Properties has received a written notice to vacate from a departing tenant and for which it has not received both a written application and a security deposit from a prospective tenant: (i) the unit address, and number of bedrooms and bathrooms, (ii) whether the unit is vacant and if not the date the unit is scheduled to be vacant; (iii) whether the unit is available to be moved into, and if not, the date it is expected to be available for move-in, (iv) whether the unit is available to be shown to the public; and (v) the proposed monthly rent and deposit requirements.
      2. Inform each prospective applicant who inquires about renting a dwelling at Nejam Properties, whether in person or by telephone, of all units for which a written notice to vacate has been received and for which both an application and security deposit has not been received by Nejam Properties. If there is no unit available at Nejam Properties of the type requested or for the date requested, inform the prospective applicant about the availability of a waiting list;
      3. Permit all prospective applicants who appear in person at Nejam Properties the opportunity to complete a written rental application and/or be placed on a waiting list, which shall be maintained pursuant to subparagraph (e) below;
      4. Indicate on all applications the month, day, and year that Defendant Nejam, his employees or agents received the application. In the event Defendant Nejam accepts more than one application for a given unit, Defendant Nejam shall process the applications in the order that both a completed application and security deposit were received. To the extent that Defendant Nejam rejects any application, Defendant Nejam shall provide a written explanation why the applicant was determined to be ineligible to rent at Nejam Properties in the Applicant Inquiry Log, infra. ¶3f;
      5. Maintain and administer Guest Cards and a Waiting List (or Lists) as follows:
         1. Defendant Nejam shall offer each prospective applicant who appears in person at Nejam Properties a guest card similar to that set forth in Attachment A. The front of the card shall have space for the prospective applicant to provide his/her name, current address and telephone number, type of unit desired (number of bedrooms and bathrooms), race, date and time of visit, and date of desired occupancy. The guest card shall state that the information regarding race is voluntary and is being gathered to assure compliance with fair housing laws and ordinances. Should the prospective applicant not fill-in the information regarding race, Defendant Nejam, an agent or employee whomever has the best opportunity to make this observation, shall make a note regarding this refusal and compile information regarding the race of the person inquiring of an apartment based upon observation and good faith belief. The back of the guest card shall have space for Defendant Nejam or his agent to provide a description of the action taken by Defendant Nejam or his agent including: (1) if unit(s) where shown to the prospect, a list of the unit(s) shown; (2) whether or not an application was offered to the prospect; (3) whether or not the opportunity to be placed on a wait list was offered to the prospect.
         2. In the event that there is no unit available, of the type or in the time frame requested, each prospective applicant shall be asked whether he or she wishes to be placed on the Waiting List. Defendant Nejam may require that a prospect requesting placement on the waiting list submit a written application and the prevailing application fee before they are placed on this list. This deposit shall be fully returned to the prospect, however, in the event the prospect's name is deleted from the wait list in accord with paragraph (v) herein. And, Defendant Nejam or his agents shall inform the prospect, prior to receipt of the application fee, that the fee will be refunded in the event their name is deleted from the list.
         3. For each prospect requesting placement on the Waiting List, a Waiting List, similar to that set forth in Attachment B, shall be used which includes the prospect's name, address, telephone number, type of unit desired, and requested occupancy date, as provided on the Guest Card.
         4. The Waiting List shall further indicate for each prospect where applicable: the date and time of placement on the Waiting List, the date(s) and time(s) of attempted or actual communications concerning the availability of a unit, and the nature (e.g., telephone call) and result of all such communications.
         5. Prospects listed on the Waiting List may be deleted upon the occurrence of any of the following events: the passage of (5) business days after the prospective tenant is given an opportunity to sign a lease for which he/she is interested; the passage of four (4) weeks following placement on the Waiting List; notification that the prospect no longer wishes to remain on the Waiting List; the inability to reach the prospect at the phone number provided; the failure of the prospect to provide a telephone number or to return two consecutive messages; the passage of the prospect's requested occupancy date; the prospect's failure to meet the qualifications for tenancy at Nejam Properties.
         6. When a unit becomes available to be leased, Defendant Nejam, or his employees or agents shall attempt to contact persons from the Waiting List, in chronological order of placement on the Waiting List, before making that unit available to any other person. Defendant Nejam may give priority to current tenants who wish to transfer to a vacant unit.
      6. Defendant Nejam, his agent or employee shall also maintain an Applicant Inquiry Log of all persons who inquire in person about the availability of rental units at Nejam Properties. It shall be similar to that set forth in Attachment C and shall contain the name, address, telephone number, race and date of first inquiry. If the person rents a unit, the unit number and date of lease shall be noted on the log. If the person submits a completed application, but is not accepted for residency or rejects an offer of residency, that shall be noted on the Applicant Inquiry Log, together with the reason for the rejection. If the persons did not apply, that shall be noted by "did not apply." Defendant Nejam or his agent shall indicate race based on the information on the Guest Card or, if not provided there, based on observation and good faith belief.
3. MANDATORY EDUCATION AND TRAINING
   4. Within ten (10) days after the date of entry of this Consent Order, Defendant Nejam shall conduct and complete the following program for all of his employees and agents to inform them of the provisions of this Order:
      1. Furnish each employee or agent a copy of this Consent Order, and inform each, in person, of the duties of Defendant Nejam and his employees and agents pursuant to the Order; and
      2. Secure the signed statement appearing at Attachment D from each such employee and agent indicating that he or she has: (i) attended an educational training program concerning their responsibilities under federal and any state and/or local fair housing laws, regulations, or ordinances and (ii) received, read, and understands this Consent Order and Defendant Nejam's policy of nondiscrimination and further understands that violation of this Order may result in sanctions against them by Defendant Nejam and/or the Court.
   5. For the duration of this Order, each new employee or agent of Defendant Nejam shall;
      1. Within ten (10) days after the date he or she commences an employment or agency relationship be given a copy of and required to read this Consent Order and sign the statement appearing at Attachment D.
      2. Within 30 days of beginning employment, attend an educational training program concerning their responsibilities under federal and any state and/or local fair housing laws, regulations, or ordinances. This program shall be conducted by a person or entity approved by the United States. Any expenses of this program shall be borne by Defendant Nejam. All persons attending this program shall have their attendance certified in writing by the person conducting the educational program.
   6. Defendants Alice Perry and Ann Sumrall are currently not involved in the business of leasing or selling dwellings. In the event that either of these Defendants becomes involved in the business of leasing or selling dwellings in the future, such person shall promptly notify Counsel for the United States⁽¹⁾ that they have become re-involved in this business and shall inform Counsel of the name and location of such business. In the event Defendant Alice Perry becomes involved in this business, she shall also complete the equivalent of the training specified in Paragraph 5 of this Order, by a person or entity approved by the United States, prior to resuming her involvement in the business of leasing or selling dwellings; and she shall have her completion of the training certified in writing and shall promptly send a copy of the certification to Counsel for the United States.
4. D. NOTIFICATION TO PUBLIC OF NONDISCRIMINATORY POLICIES
   7. Within ten (10) days after the date of entry of this Order, Defendant Nejam shall take the following steps to notify the public of his nondiscriminatory policies:
      1. Pursuant to 24 C.F.R. Part 110, post and prominently display in the rental office of Nejam Properties, and in any office where there is rental activity and/or personal contact with applicants for units at Nejam Properties, a Fair Housing Poster.
      2. Include the words "Equal Housing Opportunity" or the fair housing logo in all advertising conducted by the Defendant Nejam for any unit in newspapers, telephone directories, radio, television and on all billboards, signs, pamphlets, brochures and other promotional literature. The words or logo should be prominently placed and easily legible. In addition, all newspaper and radio advertising placed by Defendant Nejam subsequent to the date of entry of this Order shall conform to the provisions of the applicable HUD advertising guidelines, 24 C.F.R. Part 109.
      3. Include the following phrase in the standard rental application and lease used by Defendant Nejam in print equal in size to the text of the document:

         We are an equal housing opportunity provider. We do not discriminate on the basis of race, color, sex, national origin, religion, handicap or familial status (having children under age 18).

5. AFFIRMATIVE FAIR HOUSING EFFORTS
   8. Defendant Nejam agrees to undertake reasonable efforts designed to attract African-Americans and other minorities to apply for residence at Nejam Properties. To this end, Defendant Nejam and his agents shall, thirty days from the entry of this consent decree, design and submit to Counsel for the United States, a brochure which depicts representative samples of the types of dwellings that are offered for rent by Nejam Properties, the amenities at these dwellings and rent ranges then applicable. The brochure shall indicate that Nejam Properties offers housing opportunities to all regardless of their race, color, religion, sex, national origin, disability or children in the family. The brochure shall contain the Equal Opportunity in Housing logo and shall indicate an individual may contact the United States Department of Housing and Urban Development for more information or to file a complaint. The United States has ten days to object to the proposed brochure in writing. The brochure shall not be printed until the parties have resolved their dispute or, in the event they are unable to resolve it, the Court has resolved it. Defendant Nejam shall then print the brochure at his expense and, for the duration of this order, offer it to any prospective applicants inquiring in person about the availability of apartments. Further, Defendant shall make reasonable efforts to disseminate this brochure to appropriate places or organizations with a diverse population to be agreed upon by the parties.
6. F. RECORD KEEPING AND MONITORING
   9. With respect to the rental of dwellings at Nejam Properties, Defendant Nejam shall maintain all Availability Lists, Guest Cards, Applicant/Inquiry Logs, Applications and Waiting Lists in accord with the above provisions.
   10. On April 1, 2000, October 1, 2000, and thereafter on every October 1 for the years 2001 through 20004 inclusive, Defendant Nejam shall deliver to counsel for the United States a report covering the preceding reporting period containing the following information:
       1. Copies of all signed statements secured pursuant to Paragraphs 4(b) and 5 of this Order;
       2. Copies of the Availability Lists, Guest Cards, Rental Applications, Waiting Lists and Applicant/Inquiry Logs maintained pursuant to this Order⁽²⁾;
       3. A listing, by unit number, of the name, race and move in date for the current occupants of each apartment at Nejam Properties and for occupants moving-in and moving-out during the reporting period. Information regarding race shall be based upon information in the applicable Guest Cards or, if such information has not been provided therein, upon the observation and good faith belief of Defendant Nejam or his agent or employee.

          The first report submitted pursuant to this Paragraph shall also include:

       4. Written verification that persons required by the terms of this Order to attend education programs have done so;
       5. A report detailing the occupancy of each unit at Nejam Properties as of the date of entry of this Order by the name, race (based on the good faith observation or belief of Defendant Nejam and his agents) and move-in date of the occupant(s); and
       6. A photograph of the office(s) at Nejam Properties in which rental activity is conducted, showing the fair housing signs required by this Order.
   11. During the term of this Order, Defendant Nejam shall preserve all records which are the source of, contain, or relate to any of the information pertinent to their obligations under this Order, including all Availability Lists, Guest Cards, Rental Applications, Waiting Lists and Applicant/Inquiry Logs, and leases for dwellings at Nejam Properties. Upon reasonable notice to counsel for Defendant Nejam, representatives of the United States shall be permitted to inspect and copy all such records of Defendant Nejam at any and all reasonable times.
   12. During the term of this Order, the Defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written or oral complaint against any Defendant, or against any of their employees or agents, regarding equal opportunity in housing. They shall also promptly provide the United States all information it may request concerning any such complaint and its actual or attempted resolution.
7. COMPENSATION OF AGGRIEVED PERSONS
   13. The Defendants shall create a Fund in an interest bearing bank account held in escrow by their attorneys which will total, at least, One Hundred Ninety-Five Thousand Dollars ($195,000.00) for distribution to persons that the United States determines have been aggrieved by the discrimination alleged in the United States' Complaint. The Fund represents civil damages for the compensation of aggrieved persons arising out of Defendant's business operations and does not represent a fine or civil penalty. Defendants will create the Fund within five business days after entry of this Order by the Court by making a deposit of Seventy-Five Thousand Dollars ($75,000.00) into this account. On or before ninety calendar days after entry of this Order by the Court, Defendants shall make a second deposit of Seventy-Five Thousand Dollars ($75,000.00) into this trust account. And, on or before one hundred and eighty (180) calendar days after entry of this Order by the Court, Defendants shall make a third deposit of Forty-Five Thousand Dollars ($45,000.00) into this account.
   14. In addition, with regard to any declaratory judgment action brought by any insurance company providing liability insurance coverage to Defendant Nejam at the time of the alleged acts of discrimination, which seeks a determination of the insurer's duty to provide a defense or coverage in this action, or any similar action brought by Defendant Nejam against his insurance company, Defendant Nejam agrees to the following:
       1. Defendant Nejam will not settle the claim with the insurer for an amount less than Twenty-Five Thousand Dollars ($25,000.00); and will pay to the Fund a minimum of Twenty-Five Thousand Dollars ($25,000.00) of any settlement proceeds. In addition, Defendant Nejam will pay to the Fund thirty-five percent (35%) of any settlement proceeds greater than Forty Thousand Dollars ($40,000.00).
       2. In the event Defendant Nejam prevails against the insurer in an adjudicated action on either the duty to defend issue, the coverage issue, or both, the following shall apply:
          1. If the amount awarded is Forty Thousand Dollars or greater, Defendant Nejam shall pay Twenty-Five Thousand Dollars ($25,000.00) plus thirty-five percent (35%) of any award greater than Forty Thousand Dollars ($40,000.00) to the Fund.
          2. If the amount awarded is less than Forty Thousand dollars ($40,000.00), Defendant Nejam shall pay two-thirds of any such award to the Fund.
          3. In the event the insurance company prevails on both the duty to defend and coverage issues and no amount is awarded to Defendant Nejam, Defendant Nejam shall make no payment to the Fund in addition to that set forth in Paragraph 13.

             Defendant Nejam shall make the payments referenced in (i) and (ii) within five business days of his receipt of these proceeds.

   15. The Defendants will provide written verification of the amount deposited to Counsel for the United States within seven days of each deposit into the Fund. Any interest that may accrue on money deposited shall become part of the Fund and the Defendants shall have no claim on such interest. Money from the Fund shall be distributed by the Defendants pursuant to the procedures set forth below.
   16. Prior to the dispersal of any money from the Fund, the United States shall supply the Defendants' Counsel with executed written releases, consistent with the release set forth in Attachment F, of all claims, legal or equitable, which he or she might have against the Defendants, their heirs, executors, administrators, successors or assigns, A. Waddell Nejam Properties, or the employees of A. Waddell Nejam Properties regarding claims asserted by the United States in this lawsuit, so long as such claims accrued prior to the entry of this Consent Order.
   17. After the United States receives verification of the third deposit specified in Paragraph 13, counsel for the United States shall mail to the Defendants a list containing: (i) the names of persons identified as aggrieved by the alleged discrimination and the additional amounts to which each such person is entitled from the money then in the Fund; and (ii) the names of additional persons identified subsequent to the entry of this Consent Decree, if any, whom the United States has in good faith determined are also entitled to compensation, and the amounts to which each such person is entitled from the money then in the Fund. The United States shall be solely responsible for making these determinations. Within ten (10) days after the Defendants receive this list, the Defendants shall issue checks, drawn against the Fund, to persons on the United States' list for whom it has a release, in the amount specified by the United States.⁽³⁾
   18. After the United States receives verification of any further deposit(s) into the Fund of the proceeds from the declaratory judgment action involving Defendant Nejam's insurer(s) specified in Paragraph 14, counsel for the United States shall mail to the Defendants a list of the names of persons previously identified as aggrieved by the alleged discrimination and the pro-rata share each such person is entitled to receive from the money then in the Fund. Within ten (10) days after the Defendants receive this list, the Defendants shall issue checks, drawn against the Fund, to these persons in the amount specified by the United States.
   19. In the event that there is any residual money remaining in the Fund one hundred forty-five (145) days after receipt by the Defendants of the United States' final list because persons identified by the United States could not be located or, when located and properly notified, did not claim their allocation, such money will be distributed to [to be agreed upon by the parties] with the direction that it be used to foster education in the requirements of the Fair Housing Act.
8. CIVIL PENALTY
   20. Defendant Nejam shall pay as a civil penalty the sum of Five Thousand Dollars ($5,000.00) to the United States, pursuant to 42 U.S.C. § 3614(d)(1)(C). Such payment shall be made within 180 days after the date of entry of this Order.
9. DURATION OF THE ORDER
   21. This action is dismissed with prejudice, all parties to bear their own costs and attorney's fees. The Court shall retain jurisdiction for the duration of the Consent Order to enforce its terms. This Consent Order shall terminate January 1, 2005 or three months after the last compliance report is received under Paragraph F10, whichever is later, in the absence of any motion filed by the United States objecting to its termination. In the event that the United States does file such objection, the Court shall hold a hearing on the motion, and the burden shall be on the United States to demonstrate why this Order should not be terminated at that time.
10. REMEDIES FOR NON-PERFORMANCE
    22. 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 -- or first, by mutual agreement at such time, to non-binding mediation -- for resolution. The Court shall retain jurisdiction to enforce the terms of this Order upon a motion to reopen the case for such purpose. The failure of any one (1) Defendant, who is a party to this consent Order, to abide by the terms and conditions set forth herein shall not void or terminate the Consent Order for any other Defendant who is in compliance with its terms.
11. TIME FOR PERFORMANCE
    23. Any time limits for performance imposed by this Consent Order may be extended by mutual agreement of the parties.

ORDERED this _[23^rd]_ day of ______[February]________, l999.

_____________________________
UNITED STATES DISTRICT JUDGE

For the United States : Bill Lann Lee
Acting Assistant Attorney General
Civil Rights Division

By:

Isabelle M. Thabault, Deputy Chief
Thomas J. Keary, Trial Attorney
Ellen M. Bowden, Trial Attorney
Civil Rights Division
Housing and Civil Enforcement Section
U.S. Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
(202) 514-4752

Brad Pigott
United States Attorney
Southern District of Mississippi

By:

Mitzi Dease Paige
Assistant U. S. Attorney
188 East Capitol
Suite 500, One Jackson Pl.
Jackson, MS 39201
(601) 973-2840
MS Bar No. 6014

For the Defendants:

Peyton S. Irby, Jr.
Watkins, ludlam, Winter & Stennis
633 North State Street
Post Office Box 427
Jackson, Mississippi 39205-0427
(601)949-4810

Gene Berry
David A. Rueff, Jr.
Heidelberg & woodliff, P.A.
125 South Congress Street
P.O. Box 23040
Jackson, Mississippi 39225-3040
(601)968-8538

Individual Defendants:

A. Waddell Nejam

Ann B. Sumrall

Alice Perry

1. This and all other correspondence provided herein may be addressed to Chief, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, P.O. Box 65998, Washington, D.C. 20035-5998 and shall reference D.J. No. 175-41-170 in any cover letter.

2. Defendant Nejam may provide copies of these documents on a computer disk rather than paper copy. Defendant Nejam will provide paper copies of these documents, upon the request of the United States, in the event the United States is unable to read documents on the disk with its software.

3. All checks prepared pursuant to Paragraphs 17 and 18 are to be mailed, by certified mail, return receipt requested, or may be picked up by the persons listed. The Defendants shall provide the United States with copies of the canceled checks in a timely manner as they are returned to the Defendants. > >