UNITED STATES OF AMERICA,
Plaintiff,
v.
Civil Action No.DAVID R. BOYERS, SR., d/b/a
BOYERS PERSONAL CARE HOMES,
and SARAH GRANT,Defendants.
____________________________________
CONSENT ORDER I. INTRODUCTION 1. This Consent Order, filed contemporaneously with the Complaint, resolves the above-captioned case brought by the United States of America on behalf of Complainants, the Estate of Douglas J. Kirkland, and the Beaver County AIDS Service Organization ("BCASO"), pursuant to subsection 812(o) of the Fair Housing Act ("Act"), 42 U.S.C. § 3612(o).
2. Mr. Kirkland, who had AIDS and died in February 2003, was handicapped within the meaning of the Act, 42 U.S.C. § 3602(h). BCASO performed case management services for persons with HIV/AIDS in Beaver County, including Mr. Kirkland. Among the services BCASO performed for Mr. Kirkland was locating housing for him.
3. The complaint alleges that Defendants, David R. Boyers, Sr., d/b/a Boyers Personal Care Home, and Sarah Grant, discriminated against Mr. Kirkland because he had AIDS when they refused to rent to him a room at a licensed personal care home located at 1005 10th St., Beaver Falls, Pennsylvania ("the Home"). Defendant Boyers is the owner and operator of the Home, as well as another licensed personal care home at 916 11th St., Beaver Falls. Defendant Grant is the manager of the Home.
4. The Complaint alleges that in refusing to rent to Mr. Kirkland, Defendants: discriminated in the rental of a dwelling or otherwise made unavailable or denied a dwelling to a renter because of his disability, in violation of 42 U.S.C. § 3604(f)(1); made or caused to be made a statement with respect to the rental of a dwelling that indicated a preference, limitation, or discrimination, or an intent to make such a preference, limitation or discrimination, based on disability, in violation of 42 U.S.C. § 3604(c); and represented because of disability that a dwelling was not available for rent when it was in fact available, in violation of 42 U.S.C. § 3604(d). (1)
5. On or about October 4, 2002 and January 14, 2003, respectively, BCASO and Mr. Kirkland filed timely complaints with the U.S. Department of Housing and Urban Development ("HUD"), pursuant to 42 U.S.C. § 3610(a), alleging discrimination based on disability. HUD then conducted and completed an investigation of the complaints and determined that reasonable cause existed to believe that discriminatory housing practices had occurred. After Defendants elected to proceed in this Court, HUD referred the case to the Department of Justice for filing pursuant to 42 U.S.C. § 3612(o)(1).
6. The parties agree that this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. § 1345 and 42 U.S.C. § 3612(o).
7. The parties agree that, in order to avoid costly and protracted litigation, the claims against Defendants should be resolved without further proceedings and an evidentiary hearing. Therefore, as indicated by the signatures appearing below, the parties agree to the entry of this Consent Order. This Consent Order constitutes full resolution of the United States' claims that Defendants discriminated against Mr. Kirkland on the basis of disability at the Home.
It is hereby ORDERED, ADJUDGED, AND DECREED:
II. GENERAL INJUNCTION 8. Defendants, their officers, employees, agents, successors and assigns, and all other persons in active concert or participation with them are enjoined from:
- Discriminating in the rental of a dwelling or otherwise making unavailable or denying a dwelling to any renter because of a disability of that renter, a person residing in or intending to reside in the dwelling after it is rented or made available, or any person associated with that renter, in violation of 42 U.S.C. § 3604(f)(1);
- Making, printing or publishing, or causing to be made, printed or published, any notice, statement or advertisement, with respect to the rental of a dwelling that indicates a preference, limitation, or discrimination, or an intent to make such a preference, limitation or discrimination, based on disability, in violation of 42 U.S.C. § 3604(c);
- Representing to any person because of disability that a dwelling is not available for rental when such dwelling is in fact available, in violation of 42 U.S.C. § 3604(d); and
- Coercing, intimidating, threatening or interfering with any person in the exercise or enjoyment of, or on account of her having exercised or enjoyed, or on account of his/her having aided and encouraged any other person in the exercise or enjoyment of, any right granted by the Act, including representatives of the Estate of Mr. Kirkland and BCASO, as well as anyone who participated in HUD's investigation of the administrative complaints that gave rise to this action.
III. DAMAGES FOR AGGRIEVED PERSONS 9. Within ten (10) days of the entry of this Order, Defendants shall pay to the Estate of Mr. Kirkland $7,000 and to BCASO $2,000 in monetary damages. Defendants shall pay said money by sending to the United States two checks: A) a check for $7,000 payable to Janaia Carpenter, Executrix of the Estate of Douglas J. Kirkland, and B) a check for $2,000 payable to BCASO. Upon receipt of the checks, the United States shall send to Defendants an executed Release of all claims, legal or equitable, that the Estate and BCASO might have against Defendants relating to the claims asserted in this lawsuit. The Release is at Appendix A.
IV. PUBLIC NOTICE OF NON-DISCRIMINATION POLICY 10. Within ten (10) days of the date of entry of this Order and throughout the term of this Order, Defendant Boyers shall post and prominently display in all personal care homes and other rental properties owned or operated by him, a sign no smaller than 10 inches by 14 inches indicating that all dwellings are available for rental on a nondiscriminatory basis. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement.
11. Within ten (10) days of the date of entry of this Order and throughout the term of this Order, Defendant Boyers shall ensure that all advertising for all personal care homes, and other rental properties owned or operated by him, in newspapers, telephone directories, radio, television, internet, or other media, and on signs, pamphlets, brochures and other promotional literature, include a fair housing logo, the words "equal housing opportunity provider," and/or the following sentence:
We are an equal opportunity housing provider. We do not discriminate on the basis of race, color, national origin, religion, sex, familial status or disability.
The words or logo should be prominently placed and easily legible.
12. Within thirty (30) days of the entry of this Order, Defendants shall provide to all employees and tenants of personal care homes and other rental properties a written notice, conforming with that at Appendix B, describing Defendant Boyers' policy of nondiscrimination based on disability. Defendants shall also provide this policy to all prospective tenants at the time of application.
V. TRAINING 13. Within thirty (30) days of the entry of this Order, Defendants shall provide a copy of this Order to all their agents and employees whose duties, in whole or in part, involve the management or administration of a personal care home and shall secure the signed statement from each agent or employee acknowledging that he or she has received, read and understands the Order and nondiscrimination policy, and has had an opportunity to have questions about the Order and nondiscrimination policy answered. This statement shall be substantially in the form of Appendix C.
14. During the term of this Order, each new employee or agent whose duties, in whole or in part, involve the management or administration of personal care homes or other rental properties shall be given a copy of this Order and be required to sign a statement substantially in the form of Appendix C.
15. Within ninety (90) days of the date of entry of this Consent Order, Defendants and all employees and agents whose duties, in whole or in part, involve the management or administration of personal care homes or other rental properties shall undergo fair housing training. The training shall focus on discrimination because of disability and shall inform these individuals of their obligations under the Order as well as applicable state or local law. The training shall be conducted by a qualified third party, approved by the United States and unconnected to Defendants or their employees, agents or counsel, and any expenses associated with this training shall be borne by Defendants. Those who attend the training shall be required to sign a certification confirming their attendance, in a form substantially equivalent to Appendix D.
VI. REPORTING AND RECORD-KEEPING REQUIREMENTS 16. Within thirty (30) days of the entry of this Order, and thereafter on the anniversary of the entry of this Order, Defendants shall submit to the United States the signed statement of each agent and employee referred to in paragraphs 12-13. (2)
17. Within 30 (thirty) days after the training required by paragraph 12, above, Defendants shall provide to the United States: the name(s), address(es) and telephone number(s) of the trainer(s); copies of the training outlines and any materials distributed by the trainers; and the certifications required by paragraph executed by all Defendants and covered employees and agents confirming their attendance, in a form substantially equivalent to Appendix D.
18. For the duration of this Order, Defendants shall advise the United States in writing within fifteen (15) days of receipt of any written administrative or legal complaint against them, their employees or agents, regarding equal opportunity in housing or retaliation, including complaints of discrimination under the Act. Upon reasonable notice, Defendants shall also provide the United States all information it may request concerning any such complaint.
19. For the duration of this Order, Defendants shall preserve all records related to this Order and to all personal care homes or rental properties owned, operated or acquired by them. Such documents include, but are not limited to, advertisements, applications, leases, resident assessment materials, tenant files, policies and procedures, and inquiry logs. Upon reasonable notice to Defendants, representatives of the United States shall be permitted to inspect and copy any of Defendants' records or inspect any covered dwelling under Defendants' control at any and all reasonable times so as to determine compliance with the Consent Order; provided, however, that the United States shall endeavor to minimize any inconvenience to Defendants from such inspections.
VII. DURATION OF ORDER AND TERMINATION OF LEGAL ACTION 20. The Court shall retain jurisdiction for three years after the date of entry of this Order to enforce the terms of the Order, after which time the case shall be dismissed with prejudice. Prior to the expiration of the Order's term, the United States may move the Court to extend the duration of the Order in the interests of justice.
21. By consenting to entry of this Order, the parties agree that in the event it is determined in any future action or proceeding brought by the United States or any agency thereof that any Defendant engaged in any violation(s) of the Fair Housing Act, such violation(s) shall constitute a "subsequent violation" by that Defendant pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii).
22. The parties shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Order prior to bringing such matters to the Court for resolution. However, in the event of a failure by Defendants to perform in a timely manner any act required by this Order or otherwise to act in violation of 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 attorney's fees which may have been occasioned by the violation or failure to perform.
IX. TIME FOR PERFORMANCE 23. Any time limits for performance imposed by this Consent Order may be extended by the mutual agreement of the United States and the relevant defendants.
X. COSTS OF LITIGATION
24. Each party to this Consent Order shall bear its own costs and attorney's fees associated with this litigation.
IT IS SO ORDERED:
This ____day of _____________ , 2004.
_______________________________
UNITED STATES DISTRICT JUDGE
________________
Date____________________________
STEVEN H. ROSENBAUM, Chief
NICOLE PORTER, Deputy Chief
KATHLEEN M. PENNINGTON, Trial Attorney
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Phone: 202/353-9759
Fax: 202/514-1116
________________
Date____________________________
FRANK S. KELKER, Esq.
396 Adams St.
P.O. Box 150
Rochester, PA 15074
Attorney for Defendants
Phone: 724/774-5470
Fax: 724/774-5475
APPENDIX A
RELEASE OF CLAIMS
In consideration of the parties' agreement to the terms of the Consent Order entered in United States v. Boyers, Civil No. ____________ (W.D. Pa.), and the defendants' payment of the sum of _____________ dollars ($_______), I, __________________, hereby release the defendants named in this action, David R. Boyers, Sr., d/b/a Boyers Personal Care Home, and Sarah Grant, from any and all liability for any claims, legal or equitable, I may have against them arising out of the issues alleged in the action. I fully acknowledge and agree that this release of Defendants shall be binding on my heirs, representatives, executors, successors, administrators, and assigns. I hereby acknowledge that I have read and understand this release and have executed it voluntarily and with full knowledge of its legal consequences.
____________________________________
NAME: ________________________________________
ADDRESS: _____________________________________
_____________________________________
_____________________________________
DATE: __________
APPENDIX B NONDISCRIMINATION POLICY It is the policy of David R. Boyers and Boyers Personal Care Homes to comply with Title VIII of the Civil Rights Act of 1968 (commonly known as the Fair Housing Act) by ensuring that apartments are available to all persons without regard to race, color, religion, national origin, disability, familial status or sex. This policy means, among other things, David R. Boyers and all agents or employees of Mr. Boyers or Boyers Personal Care Homes with the responsibility for renting, managing or administering any dwelling units must not discriminate in any aspect of the rental of dwellings against qualified applicants or tenants with disabilities. Such agents and employees may not:
A. Discriminate in the rental of a dwelling, or otherwise make unavailable or deny a dwelling to any renter because of a disability of that renter; a person residing in or intending to reside in the dwelling after it is rented or made available; or any person associated with that renter;
B. Make, print or publish, or cause to be made, printed or published, any notice, statement or advertisement, with respect to the rental of a dwelling that indicates a preference, limitation, or discrimination, or an intent to make such a preference, limitation or discrimination, based on disability;
C. Represent to any person because of disability that a dwelling is not available for rental when such dwelling is in fact available.
Any agent or employee who fails to comply with this non-discrimination policy will be subject to appropriate disciplinary action which may include termination and/or eviction. Any action taken by an agent or employee that results in the unequal service, treatment or behavior to tenants on the basis of disability may constitute a violation of state and federal fair housing laws.
Any tenant who believes that any of the above policies has been violated by any owner, agent or employee may contact the U.S. Department of Housing and Urban Development at 1-800-669-9777 or the U.S. Department of Justice at 1-800-896-7743 or 202-514-4713.
APPENDIX C
EMPLOYEE ACKNOWLEDGEMENT On ________, 200___, I, ______________________, was instructed by _______________________ with respect to my responsibilities under the Consent Order entered by the U.S. District Court in United States v. Boyers, Civil No. ____________ (W.D. Pa.) and the federal Fair Housing Act. I was also instructed as to Boyers rental policies and procedures. I have received copies of and have read the Consent Order and the nondiscrimination policy. I understand my legal responsibilities and will comply with those responsibilities.
___________________________
Signature____________________________
Print name___________________________
Job Title________________
Date
APPENDIX D EMPLOYEE CERTIFICATION On ______________ , 200__, I, ________________________, was instructed by ___________________________ with respect to my responsibilities under the Fair Housing Act. I understand my legal responsibilities and will comply with those responsibilities.
___________________________
Signature___________________________
Job Title________________
Date
1. This document uses the term "disability" rather than "handicap" which the Act uses. The terms are synonymous.
2. All submission to the United States or its counsel shall be made to: U.S. Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section - NWB, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530, Attn: DJ No. 175-64-176.
Document Filed: October 13, 2004