Amended Housing Discrimination Complaint - U.S. v. ERGS, Inc., et al. (D. Nev.)

R. Alexander Acosta
Assistant Attorney General
Steven H. Rosenbaum
Chief
Keisha Dawn Bell
Deputy Chief
Myron S. Lehtman
CA St. Bar No. 57597
Attorney
Housing and Civil Enforcement
Section - NWB
Civil Rights Division
United States Department of
Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
202-514-4738
202-514-1116 (Fax. No.)

Daniel G. Bogden
United States Attorney
Greg Addington
Assistant United States Attorney
Nev. St. Bar. No. 6875
100 W. Liberty Street
Suite 600
Reno, NV 89501
(775)784-5438
775)784-5181 (Fax No.).
Attorneys for Plaintiff

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

UNITED STATES OF AMERICA,

Plaintiff,
C. A. No. CV-N-04-0237-HDM-RAM

v.

AMENDED COMPLAINT

ERGS, INC.; JOHN MCCAMANT; CFA, INC.;
and SIERRA SAGE APARTMENTS, LLC,

Defendants.

__________________________________________)

The United States of America alleges:

1. This action is brought by the United States to enforce the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 ("Fair Housing Act"), 42 U.S.C. §§ 3601-3619, and Title III of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§12181-12189. It is brought on behalf of the Silver State Fair Housing Council, Inc. ("SSFHC"), pursuant to Section 812(o) of the Fair Housing Act, 42 U.S.C. § 3612(o), as well as pursuant to Section 814(a) of the Fair Housing Act, 42 U.S.C. § 3614(a) and to 42 U.S.C. § 12188 (b)(1)(B) (ADA).

Jurisdiction and Venue

2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. § 3612(o), and 42 U.S.C. § 3614(a) and 12188(b)(1)(B).

3. Venue is proper because the claims alleged in this action arose within the County of Washoe, Nevada in the District of Nevada, and concern or otherwise relate to real properties located therein.

The Properties

4. Silver Lake Apartments ("Silver Lake") is a residential dwelling complex located at 7350 Silver Lake Road in Reno, Nevada. Silver Lake is a two story, walk-up apartment community with single story units on each floor. It consists of at least 30 completed residential buildings containing a total of at least 120 ground-floor dwelling units (Phases I - III). Construction of additional buildings in Phases IV - V at Silver Lake is continuing or planned. Each ground-floor unit at Silver Lake was designed and constructed for first occupancy after March 13, 1991. On information and belief, the entire project is expected to be completed by the Fall of 2005.

5. Sierra Sage Apartments ("Sierra Sage") is a residential dwelling complex located at 6060 Silver Lake Road in Reno, Nevada. Sierra Sage is a two story, walk-up apartment community with single story units on each floor. It consists of 28 residential buildings containing a total of 116 ground-floor units. With the exception of units in buildings one through three of the complex, the ground-floor units at Sierra Sage were designed and constructed for first occupancy after March 13, 1991. Construction of Sierra Sage ended in or about November 1997.

6. The apartment complexes described in paragraphs 4 and 5 above are "dwellings" within the meaning of 42 U.S.C. § 3602(b). They contain ground-floor units that are "covered multifamily dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(A). These ground-floor units are subject to the accessibility requirements of 42 U.S.C. § 3604(f)(3)(C).

The Defendants

7. Defendant ERGS, Inc. is a Nevada corporation with its principal place of business at 9345 Lemmon Drive, Reno, Nevada 89506. ERGS, Inc. is the owner/developer of Silver Lake. George F. Peek is the president of ERGS, Inc. ERGS, Inc. also was the developer of Sierra Sage and owned that complex between 1989 and 2001. In its capacity as developer, ERGS, Inc. was responsible for the design and/or construction of both apartment complexes. ERGS, Inc. markets both Silver Lake and Sierra Sage jointly on a single website, www.ergsinc.com, and serves as manager for both complexes.

8. Defendant John McCamant is an architect doing business in Nevada. His office is located at 327 Pyramid Way, Sparks, Nevada 89431-5052. Mr. McCamant designed Silver Lake and a portion of Sierra Sage and in that capacity was responsible for the design and/or construction of those apartment complexes.

9. Defendant CFA, Inc., a Nevada corporation with its principal place of business at 1150 Corporate Boulevard, Reno, Nevada 89502, provided civil engineering services for Silver Lake and in that capacity was responsible for the design and/or construction of that complex.

10. Defendant Sierra Sage Apartments, LLC is a Nevada limited liability company with its registered office located at 9345 Lemmon Drive, Reno, NV 89506. Defendant Sierra Sage Apartments, LLC is 100 percent owned and controlled by ERGS, Inc. George F. Peek serves as the manager for Sierra Sage Apartments, LLC. Defendant Sierra Sage Apartments, LLC, acquired Sierra Sage from ERGS, Inc., in or about April 2001. As the current owner of Sierra Sage, Sierra Sage Apartments, LLC is a party necessary to accord complete relief.

Count I

11. Plaintiff re-alleges and herein incorporates by reference the allegations set forth in paragraphs 1-10, above.

12. SSFHC is a nonprofit Nevada corporation organized under the laws of Nevada with its principal place of business located in Reno, Nevada. One of its specific purposes and goals is the promotion of equal opportunity in the rental of housing and the elimination of all forms of illegal housing discrimination. To this end, the activities in which SSFHC engages include, but are not limited to: (1) investigating allegations of discrimination; (2) conducting investigations of housing facilities to determine whether equal opportunity in housing is provided; (3) taking such steps as it deems necessary to assure such equal opportunity and to counteract and eliminate discriminatory housing practices; (4) providing outreach and education to the community, including housing providers and consumers, regarding fair housing; and (5) monitoring and training housing providers that have previously engaged in discriminatory housing practices. Among other things, SSFHC conducted an investigation of Silver Lake to determine its compliance with the design and construction requirements of the Fair Housing Act.

13. On or about December 16, 2002, as amended on or about February 24, 2003, SSFHC filed a complaint with the United States Department of Housing and Urban Development ("HUD") pursuant to Section 810(a) of the Fair Housing Act, 42 U.S.C. § 3610(a), alleging discrimination in housing on the basis of handicap. In its complaint, SSFHC alleged that Silver Lake was not designed and constructed in accordance with the accessibility requirements of the Fair Housing Act.

14. Pursuant to the requirements of 42 U.S.C. §§ 3610(a), (b) & (f), the Secretary of HUD conducted and completed an investigation of the complaint filed by SSFHC, attempted conciliation without success, and prepared a final investigative report. Based on information gathered during the investigation, the Secretary, pursuant to 42 U.S.C. § 3610(g)(1), determined that reasonable cause existed to believe that discriminatory housing practices had occurred. Accordingly, on or about April 9, 2004, the Secretary issued a Charge of Discrimination pursuant to 42 U.S.C. § 3610(g)(2)(A), charging the defendants ERGS, Inc., John McCamant, and CFA, Inc., with engaging in discriminatory housing practices in violation of the Fair Housing Act.

15. On or about April 13, 2004, SSFHC elected to have the Charge of Discrimination resolved in a civil action filed in federal district court, pursuant to 42 U.S.C. § 3612(a).

16. On or about April 14, 2004, HUD's Chief Administrative Law Judge issued a Notice of Election of Judicial Determination and terminated the administrative proceeding on the complaint filed by SSFHC pertaining to Silver Lake.

17. Following this Notice of Election, the Secretary of HUD authorized the Attorney General to commence a civil action, pursuant to 42 U.S.C. § 3612(o).

18. Defendants ERGS, Inc., John McCamant, and CFA, Inc., have failed to design and construct Silver Lake so that:

(a) the public use and common use portions are readily accessible to and usable by individuals with disabilities;

(b) all doors within the ground-floor units are sufficiently wide to allow passage by persons with disabilities who use wheelchairs; and

(c) all of the ground floor units contain the following features: (i) an accessible route into and through the dwelling; (ii) electrical outlets, thermostats and other environmental controls in accessible locations; and (iii) usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about the space.

19. Defendants ERGS, Inc., John McCamant, and CFA, Inc., through the actions referred to in the preceding paragraph, have:

(a) Discriminated in the rental, or otherwise made unavailable or denied, dwellings to persons because of handicap, in violation of 42 U.S.C. § 3604(f)(1);

(b) Discriminated against persons in the terms, conditions or privileges of rental of a dwelling, or in the provision of services or facilities in connection with a dwelling, because of handicap, in violation of 42 U.S.C. § 3604(f)(2); and

(c) Failed to design and construct dwellings in compliance with the accessibility and adaptability features mandated by 42 U.S.C. § 3604(f)(3)(C).

20. SSFHC is an aggrieved person, as defined in 42 U.S.C. § 3602(i), and has suffered damages as a result of the conduct of defendants ERGS, Inc.; John McCamant; and CFA, Inc., described above.

21. The discriminatory actions of defendants ERGS, Inc.; John McCamant; and CFA, Inc., were intentional, willful and taken in disregard for the rights of the SSFHC.

Count II

22. Plaintiff re-alleges and herein incorporates by reference the allegations set forth in paragraphs 1-21 above.

23. SSFHC also conducted an investigation of Sierra Sage to determine its compliance with the design and construction requirements of the Fair Housing Act. On December 12, 2002, as amended on February 13, 2003, SSFHC filed a discrimination complaint with HUD pursuant to Section 810(a) of the Fair Housing Act, 42 U.S.C. § 3610(a), alleging discrimination in housing on the basis of handicap. In its complaint, SSFHC alleged that Sierra Sage was not designed and constructed in accordance with the accessibility requirements of the Fair Housing Act. HUD conducted an investigation of the complaint (HUD Case No. 09-03-0188-8) but, following the dismissal of the claims against Sierra Sage Apartments, LLC, in Silver State Fair Housing Council, Inc. v. ERGS, Inc., CV-N-02-0615-DWH (VPC) (D. Nev. Mar. 8, 2004), closed its further consideration of that matter and referred its file pertaining to it to the United States Department of Justice on April 28, 2004, because of its possible relevance to proceedings involving Silver Lake.

24. Defendants ERGS, Inc. and John McCamant failed to design and construct Sierra Sage so that, in those buildings built for first occupancy after March 13, 1991:

(a) the public use and common use portions are readily accessible to and usable by individuals with disabilities;

(b) all doors within the ground-floor units are sufficiently wide to allow passage by persons with disabilities who use wheelchairs; and

(c) all of the ground floor units contain the following features: (i) an accessible route into and through the dwelling; (ii) electrical outlets, thermostats and other environmental controls in accessible locations; (iii) usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about the space.

25. Defendants ERGS, Inc. and John McCamant, through the actions referred to in the preceding paragraph pertaining to Sierra Sage, have:

(a) Discriminated in the rental, or otherwise made unavailable or denied, dwellings to persons because of handicap, in violation of 42 U.S.C. § 3604(f)(1);

(b) Discriminated against persons in the terms, conditions or privileges of rental of a dwelling, or in the provision of services or facilities in connection with a dwelling, because of handicap, in violation of 42 U.S.C. § 3604(f)(2); and

(c) Failed to design and construct dwellings in compliance with the accessibility and adaptability features mandated by 42 U.S.C. § 3604(f)(3)(C).

26. The conduct of defendants ERGS, Inc. and John McCamant described in paragraphs 18 - 19 (as to Silver Lake) and 24-25 (as to Sierra Sage) and defendant CFA, Inc. described in paragraphs 18 - 19 (as to Silver Lake) constitutes:

(a) A pattern or practice of resistance to the full enjoyment of rights granted by the Fair Housing Act, 42 U.S.C. §§ 3601-3619; and

(b) A denial to a group of persons of rights granted by the Fair Housing Act, 42 U.S.C. §§ 3601-3619, which denial raises an issue of general public importance.

27. In addition to SSFHC, there may be other victims of the discriminatory actions of defendants ERGS, Inc.; John McCamant; and CFA, Inc. who are aggrieved persons as defined in 42 U.S.C. § 3602(i). Such persons may have suffered actual injury and damages as a result of the above actions and practices.

28. The discriminatory actions of defendants ERGS, Inc., John McCamant; and CFA, Inc. were intentional, willful and taken in disregard for the rights of SSFHC and other victims of this discrimination.

29. As the current owner of Sierra Sage, Sierra Sage Apartments, LLC, controls access to the individual dwelling units and the common and public use areas and is a necessary party for complete relief.

Count III

30. The allegations of paragraphs 1-29 are hereby incorporated by reference.

31. The leasing office at Silver Lake is a place of public accommodation within the meaning of Section 301(7)(E) of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181(7)(E).

32. The leasing office at Silver Lake was designed and constructed for first occupancy after January 26, 1993.

33. Defendant ERGS, Inc., as owner and developer of Silver Lake, has violated 42 U.S.C. § 12183(a) (1) by failing to design and construct the leasing office of Silver Lake, such that it is readily accessible to and usable by individuals with disabilities, as required by Section 303(a)(1) of the ADA, 42 U.S.C. § 12183(a)(1), and the regulations of the ADA issued by the United States Department of Justice which implement Title III of the ADA, 28 C.F.R. Part 36, including the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the ADA Standards"). These inaccessible features include, but are not limited to, the following:

(a) The curb ramp leading to the parking area has running slopes exceeding the 8.33% maximum allowed [ADA Standards 4.7.2];

(b) The height of the threshold at the entrance to the leasing office exceeds the ½" maximum allowed and is not beveled 1:2 or less [ADA Standards 4.13.8];

(c) In the men's and women's toilet rooms, the toilet is located with its centerline exceeding 18" from the adjoining wall [ADA Standards 4.16.2]; and

(d) In the men's and women's toilet rooms, the toilet paper dispensers are located further than 36" from the rear wall [ADA Standards 4.16.6].

34. The conduct of defendant ERGS, Inc. described in paragraphs 31 - 33 constitutes:

(a) A pattern or practice of discrimination within the meaning of 42 U.S.C. § 12188(b)(1)(B)(i) and 28 C.F.R. § 36.503(a); and

(b) Unlawful discrimination that raises an issue of general public importance within the meaning of 42 U.S.C. § 12188(b)(1)(B)(ii) and 28 C.F.R. §§ 36.503(b).

35. The discriminatory actions of defendant ERGS, Inc. was intentional, willful and taken in disregard for the rights of SSFHC and other victims of this discrimination.

36. Upon information and belief, persons who are victims of the discriminatory conduct of ERGS, Inc. described in this count may have suffered injuries as a result of defendants' conduct.

Prayer for Relief

WHEREFORE, the United States prays that the Court enter an order that:

1. Declares that the policies and practices of defendants ERGS, Inc., John McCamant, and CFA, Inc., as alleged herein violate the Fair Housing Act and that defendant ERGS, Inc. has violated Title III of the ADA;

2. Declares that defendants ERGS, Inc. and John McCamant have engaged in a pattern or practice of discrimination in violation of the Fair Housing Act and have denied rights under the Fair Housing Act to a group of persons raising an issue of public importance;

3. Declares that defendant ERGS, Inc. has engaged in a pattern or practice of discrimination in violation of the ADA and has denied rights under the ADA to a group of persons raising an issue of public importance;

4. Enjoins defendants ERGS, Inc., John McCamant, and CFA, Inc., their officers, employees, agents, successors and all other persons in active concert or participation with any of them, from:

(a) Failing or refusing to bring the covered multi-family dwelling units at Sierra Sage and Silver Lake and the public use and common use areas at those properties into compliance with 42 U.S.C. § 3604(f)(3)(C);

(b) Failing or refusing to take such affirmative steps as may be necessary to restore, as nearly as practicable, the victims of the defendants' unlawful practices to the position they would have been in but for the discriminatory conduct; and

(c) Designing or constructing covered multifamily dwellings in the future that do not contain the accessibility and adaptability features required by 42 U.S.C. § 3604(f)(3)(C);

5. Enjoins Sierra Sage Apartments, LLC, and ERGS, Inc., to allow access to the common and public use areas and the individual dwelling units at Sierra Sage, and to take any other actions appropriate to ensure that any retrofits required to bring the complex into compliance with the accessibility provisions of the Fair Housing Act can be made in a prompt and efficient manner.

6. Enjoins ERGS, Inc., to allow access to the common and public use areas and the individual dwelling units at Silver Lake, and to take any other actions appropriate to ensure that any retrofits required to bring the complex into compliance with the accessibility provisions of the Fair Housing Act and the ADA can be made in a prompt and efficient manner.

7. Enjoins defendant ERGS, Inc., its officers, employees, agents, successors and all other persons in active concert or participation with it, from:

(a) Failing or refusing to bring public and common use areas at Silver Lake into full compliance with 42 U.S.C. § 12183(a)(1), 28 C.F.R. §§ 36.401 and 36.406, and 28 C.F.R. Part 36, Appendix A; and

(b) Designing or constructing any public accommodations or commercial facilities that are not readily accessible to and usable by individuals as required by 42 U.S.C. § 12183(a)(1), 28 C.F.R. §§ 36.401 and 36.406, and 28 C.F.R. Part 36, Appendix A.

8. Awards monetary damages to all persons harmed by defendants' discriminatory practices, including the SSFHC, pursuant to 42 U.S.C. §§ 3612(o)(3), 3613(c)(1),and 42 U.S.C. § 3614(d)(1)(B) and 42 U.S.C. § 12188(b)(2)(B).

9. Assesses a civil penalty against defendants ERGS, Inc. and John McCamant in an amount authorized by 42 U.S.C. § 3614(d)(1)(C) and by 42 U.S.C. § 12188(b)(2)(C), as to defendant ERGS, Inc., in order to vindicate the public interest.

The United States further prays for such additional relief as the interests of justice may require.

John Ashcroft
Attorney General

_______________________
R. Alexander Acosta
Assistant Attorney General

Daniel G. Bogden
United States Attorney
District of Nevada

_______________________
Greg Addington
Assistant United States
Attorney
100 W. Liberty Street
Suite 600
Reno, Nevada 89501
775-784-5438
_______________________
Steven H. Rosenbaum
Chief, Housing & Civil
Enforcement

_______________________
Keisha Dawn Bell
Deputy Chief
Myron S. Lehtman
Senior Trial Attorney
U.S. Department of Justice
Civil Rights Division
Housing & Civil
Enforcement Section
Section - NWB
950 Pennsylvania Avenue
Washington, D.C. 20530
202-514-4738

Document Filed: May 13, 2004