R. Alexander Acosta
Assistant Attorney General
Steven H. Rosenbaum
Jeanine M. Worden
United States Department of
Civil Rights Division
Housing and Civil Enforcement Section - G St
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Daniel G. Bogden
United States Attorney
Blaine T. Welsh
Assistant U.S. Attorney
333 Las Vegas Boulevard South
Las Vegas, NV 89101
Attorneys for Plaintiff
UNITED STATES OF AMERICA,
TORINO CONSTRUCTION CORPORATION OF
NEVADA, INC.; SEDONA CORPORATION;
PARADISE VILLAGE F&B;
CANYON WILLOW II, LLC; and
CANYON WILLOW HOMEOWNERS
ASSOCIATION, INC., CONSENT DECREE
Plaintiff United States and defendants Torino Construction Corporation of Nevada, Inc.; Sedona Corporation; Paradise Village F&B; and Canyon Willow II, LLC (defendants); and Canyon Willow Homeowners Association, Inc. (the Association) agree to the terms of this Consent Decree resolving the Complaint filed by the United States.Introduction
The United States files this Consent Decree simultaneously with its Complaint alleging violations of Section 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). Specifically, the United States' Complaint alleges that defendants, with the exception of Canyon Willow Homeowners Association, (1) have engaged in a pattern or practice of discrimination by failing to design and construct Canyon Willow Condominiums (Canyon Willow), located in Las Vegas, Nevada, with the features of accessible and adaptable design set forth in 42 U.S.C. § 3604(f)(3)(C).
Defendants were the owners, developers, and/or general contractors for Canyon Willow. R.H. Huddleson designed Canyon Willow. (2)
Canyon Willow Homeowners Association, Inc. represents the homeowners at Canyon Willow. Canyon Willow is located at 5205 Caspian Springs Drive in Las Vegas, Nevada, and consists of ninety (90) buildings containing a total of 720 units, including 360 ground-floor units.
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 has or acquires a disability. 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) 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).
All of the 360 ground floor units at Canyon Willow are "covered multifamily dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(A). These units and the public and common use areas of Canyon Willow are subject to the design and construction requirements at 42 U.S.C. § 3604(f)(3)(C).
Defendants deny, dispute and do not admit to the United States' allegations. The parties, however, agree that the disputed claims against these defendants should be resolved without further proceedings or an evidentiary hearing. Therefore, as indicated by the signatures appearing below, the parties agree to the entry of this Consent Decree.
It is hereby ORDERED, ADJUDGED and DECREED:I. GENERAL INJUNCTION
Defendants are enjoined from discriminating on the basis of disability, as prohibited by the Act 42 U.S.C. § 3604(f)(1), (2), and (3)(C) and as set forth in the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991) (the Guidelines). (3)II. CORRECTIVE ACTIONS
The sum of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) has been paid to the Association by the defendants and/or their agents, in connection with the settlement of a state court construction defect action pending concurrently with this matter, in order to settle the violations of the Act alleged by the United States. The Association shall deposit this amount, in a separate interest-bearing account (the FHAA Fund), and will provide the United States with the name of the depository institution and any information it requests periodically on the FHAA Fund. The Association shall contract with an entity (the Entity), to serve as the Association's agent for purposes of performing the corrective actions and other obligations of the Association under this Consent Decree. The Entity shall administer the Fund and 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 in order to bring those areas and units into compliance with the requirements of the Act and the Guidelines, as set forth below. The Association shall cooperate with the Entity to carry out the corrective actions specified. The FHAA Fund shall be solely administered by the Entity in a manner which maximizes accessibility for people with disabilities at Canyon Willow. Completion of the Association's duties under this Consent Decree shall be deemed to be in full and complete compliance with the Association's duties to perform modifications/retrofits under this Consent Decree and the Consent Orders previously entered into between the Association and the Department of Housing and Urban Development, Case Numbers HUDALJ 09-98-1375-8 and HUDALJ 09-99-0163-8.
The parties have made a good faith estimate that $1.5 million is adequate to perform the required 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. Payment of $1.5 million having been made by defendants and/or their agents to the Association, defendants' obligations under this Section II, "Corrective Actions" shall be considered completed. After completion of all corrective work provided for in subsections A and B below, or after the end of two and one half (2½) years, whichever is later, any balance remaining in the FHAA Fund shall be returned to the Canyon Willow Homeowners Association. The Association shall not be required to pay any additional moneys to the FHAA Fund for purposes of performing the corrective actions required pursuant to this Section of this Consent Decree.
A. Public and Common Use Areas:
- Within one hundred eighty (180) days from the date of entry of this Decree, modifications to the public and common use areas of Canyon Willow shall commence as specified in Appendix A. These modifications shall be completed within two (2) years after commencement. The Entity shall pay all expenses associated with those modifications using the proceeds from the FHAA Fund.
- The United States shall prioritize and determine which of the specified retrofits shall be performed by the Entity so as to maximize compliance with the accessibility requirements of the Act.
B. Dwelling units:
- After completion of the public and common use areas modifications, the Entity shall make retrofits to the interiors of the units of those owners who request retrofits to their units pursuant to Paragraphs two (2) and three (3) below.
- Within thirty (30) days after completion of the public and common use area modifications, the Entity shall provide written notice (the Notice) to all current Canyon Willow homeowners of covered dwelling units(the Owners), stating that all of the modifications to their unit specified at Appendix B are available without cost to them (the Retrofits). A copy of the Notice shall simultaneously be provided to counsel for the United States. (4) Any homeowners of covered dwelling units desiring such retrofits shall have 120 days from the date of the Notice to submit a written request for the same to the Entity. The Association/Entity have no duty to perform any interior retrofits, except in response to timely received requests.
- The Entity shall use its best efforts to complete the Retrofits on a first-come, first-served basis within thirty (30) days of the request, subject to the provisions of Paragraph X below.
- The parties do not anticipate that the Retrofits planned for the individual dwelling units at Canyon Willow will cause any undue inconvenience or hardship to owners. However, in the event a resident of a unit scheduled to undergo such retrofit does incur undue inconvenience or hardship (defined as a required dislocation from the unit for more than 24 hours consecutively) the Entity will pay such owner the applicable government per diem rate for food and lodging for the local area for each day of undue inconvenience or hardship. Such payment shall be made prior to the commencement of any retrofit work on the owner's unit, so that the owner can use the money to obtain alternative living accommodations while dislocated. Said payment shall be made from the FHAA Fund.
III. NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION
For the duration of this Consent Decree, defendants shall each submit to counsel for the United States the following information regarding any covered multi-family dwellings and any places of public accommodation that are part of a multi-family dwelling complex intended to be developed, designed, and/or constructed by it or them, alone or together, in whole or in part, or by any entities in which defendants have a position of control as an officer, director, member, or manager, or have a fifty-percent (50%) or larger ownership share, the following information: (1) the name and address of the project; (2) a description of the project and a description of the individual units; (3) the name and address of each site engineer 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 requirements of the Fair Housing Act and the Guidelines; (4) the name and address of each architect involved with the project; and (5) 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 site design and certifying that he/she has reviewed the architectural plans for the project and that the design specifications therein fully comply with the requirements of the Fair Housing Act and the Guidelines.
If the engineering documents or architectural plans are revised, and the revisions could have any impact on the accessibility of the dwellings or complex, defendants shall obtain and maintain (and provide to the United States upon request) a statement from the site engineer or architect, as applicable, that all specifications in the revised engineering documents or architectural plans, as pertinent, comply with the requirements of the Fair Housing Act and the Guidelines.IV. EDUCATIONAL PROGRAM
- Within thirty (30) days of the entry of this Decree, defendants shall provide a copy of this Decree to all their current employees involved in the design or construction of covered multifamily dwellings and secure the signed statement, attached hereto as Appendix C from each current employee acknowledging that he/she has received, read and understands the Decree.
- Within thirty (30) days after the date on which a new employee or agent commences employment or an agency relationship with these defendants, each new employee or agent involved in the design or construction of covered multifamily dwellings shall be given a copy of this Decree and be required to sign the statement, attached hereto as Appendix C acknowledging that he/she has received, read and understands the Decree.
- For a period of two (2) years of the date of entry of this Decree, defendants 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 offices of all dwellings owned or operated by them, if any, and in any other place in which persons may inquire about buying dwellings from them.
- For the duration of this Consent Decree, in all future advertising in newspapers, and on pamphlets, brochures and other promotional literature regarding the existing complexes or any new 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.
- For the duration of this Decree, defendants shall advise counsel for the United States in writing within 15 days of receipt of any new and initial formal or informal complaint against them or their current employees, regarding equal opportunity in housing, including any complaints of discrimination 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, these defendants shall advise counsel of the United States of such resolution.
- For the duration of this Decree, defendants are required to preserve all records related to this Decree regarding Canyon Willow and all future covered multifamily dwellings to be designed or constructed by them. (5) Upon reasonable notice to these 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 these defendants' control at any and all reasonable times so as to determine compliance with the Consent Decree.
- Within one (1) year after the entry of this Decree, and thereafter on the anniversary of entry of this Decree, the Entity shall submit a report that includes all documents respecting the modifications required in section II of this Decree, including:
1. All modification selection forms submitted by unit owners;
2. A listing of all modifications performed during the reporting period; and
3. An account of any expenditures the Entity has made from the FHAA Fund.
The initial report should also include certification that the specified public and common use area retrofits have been made.
- 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:
1. The signed statement of each current employee involved in the design or construction of covered multifamily dwellings, acknowledging that he/she received, read and understands the Decree; and
2. All current advertising or promotional literature regarding these defendants' covered multifamily dwellings.
3. If defendants have not developed, designed, and/or constructed any covered multifamily dwellings during the applicable reporting period, a letter so stating shall fulfill the requirements of this provision.VII. COMPENSATION OF AGGRIEVED PERSONS
- The total sum of SEVENTY-FIVE THOUSAND DOLLARS ($75,000) shall be set aside within the FHAA Fund for the purpose of compensating any aggrieved persons who may have suffered as a result of defendants' discriminatory housing practices. This money shall be referred to as the "Settlement Fund."
- Any interest accruing to the Settlement Fund shall become a part of the fund and be utilized as set forth herein.
- Within 30 days of the entry of this Order, the Entity shall send, by first-class mail, postage pre-paid, a copy of the Notice to Potential Victims of Housing Discrimination (attached as Appendix D) to each present homeowner at Canyon Willow. Within 45 days of entry of this Order, the Entity shall provide to counsel for the United States proof that the Notice has been sent.
- Nothing in this section shall preclude the United States from making its own efforts to locate and provide notice to potential aggrieved persons.
- Allegedly aggrieved persons shall have 120 days from the date of the entry of this Order to contact the United States in response to the Notice. The United States shall investigate the claims of allegedly aggrieved persons and, within 180 days from the entry of this Decree, shall make a preliminary determination of which persons are aggrieved and an appropriate amount of damages that should be paid to the each such person. The United States will inform the Entity, in writing, of its preliminary determinations, together with a copy of a sworn declaration from each aggrieved person setting forth the factual basis of the claim. The Entity shall have fourteen (14) days to review the declaration and provide to the United States any documents or information that they believe may refute the claim.
- After receiving the Entity's comments, the United States shall submit its final recommendations to the Court for approval, together with a copy of the declarations and any additional information submitted by the Entity. When the Court issues an order approving or changing the United States' proposed distribution of funds for aggrieved persons, the Entity shall, within ten (10) days of the Court's order, deliver to the United States checks payable to the aggrieved persons in the amounts approved by the Court. In no event shall the aggregate of all such checks exceed the sum of the Settlement Fund, including accrued interest. No aggrieved person shall be paid until he/she has executed and delivered to counsel for the United States the release at Appendix E.
- In the event that less than the total amount in the fund including accrued interest is distributed to aggrieved persons, the remainder shall revert to the FHAA Fund for use in performing retrofits.
- The Entity shall permit the United States, upon reasonable notice, to review any records that may facilitate its determinations regarding the claims of alleged aggrieved persons.
- Defendants and/or their agents shall pay the total sum of FIVE THOUSAND DOLLARS ($5,000) to the United States as a civil penalty pursuant to 42 U.S.C. §3614(d)(1)(C) and 42 U.S.C. §12188(b)(2)(C)(i). Said sum shall be paid within thirty (30) days of the date of entry of this Order by submitting a check made payable to the United States of America to counsel for the United States, and shall be paid from the FHAA Fund.
- This Consent Decree shall remain in effect for two and one-half years after the date of its entry.
- By consenting to entry of this Decree, the United States and defendants agree that in the event that these defendants engage in any violation(s) of the Fair Housing Act in any construction or ownership of covered multifamily dwellings 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).
- The Complaint in this action is dismissed with prejudice. The Court shall retain jurisdiction for the duration of this Consent Decree to enforce the terms of the Decree. The United States may move the Court to extend the duration of the Decree in the interests of justice.
- The United States 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, the United States may move this Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed, and an award of any damages, costs, and reasonable attorneys' fees which may have been occasioned by the violation or failure to perform.
Any time limits for performance imposed by this Consent Decree may be extended by the mutual agreement of the United States and the relevant defendants.XI. COSTS OF LITIGATION
Each party to this Consent Decree shall bear its own costs and attorney's fees associated with this litigation.
IT IS SO ORDERED:
This ______ day of _________________ 2004.
Agreed to by the parties as indicated by the signatures of counsel below.
FOR THE PLAINTIFF:
R. ALEXANDER ACOSTA
Assistant Attorney General
DANIEL G. BOGDEN
United States Attorney
Assistant United States Attorney
STEVEN H. ROSENBAUM
JEANINE M. WORDEN
Deputy Chief 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
FOR TORINO CONSTRUCTION CORPORATION OF NEVADA, INC.; SEDONA
CORPORATION; PARADISE VILLAGE F&B; and CANYON WILLOW II, LLC:
Las Vegas, Nevada
FOR CANYON WILLOW HOMEOWNERS ASSOCIATION:
Canyon Willow Homeowners Association
1. Canyon Willow Homeowners Association is named solely as a defendant in the Complaint filed in this action as a necessary party for relief, and for that reason is not referred to as a defendant within this Consent Decree.
2. R.H. Huddleson is deceased and consequently, is not a named defendant in this action.
3. Defendants Torino Construction Corporation of Nevada, Paradise Village F&B; Sedona Corporation, and Canyon Willow II LLC Limited Liability Company have represented to the United States that they are no longer actively engaged in the business of developing or constructing new multi-family residential projects, or projects of any nature; have no on going construction operations; have no intention of doing so in the future; and are not currently licensed contractors.
4. 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. 175-46-110 or as otherwise directed by the United States.
5. This provision shall not require defendants to preserve records related to the original design and construction of Canyon Willow or the state court construction defect action.
Document Entered: January 12, 2004 > >