IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

           Plaintiff,

     v.                                                                           CASE NO. 401CV3303

SAVANNAH PINES, LLC;
HALLIE MANAGEMENT                                        CONSENT ORDER
COMPANY; MARY SCHULTZ;
DEBBIE BUTT; JEFF BUTT; and
HAMPTON, LLC,

           Defendants.

________________________________

The United States of America files this Consent Order with Savannah Pines, LLC, Hampton, LLC, Hallie Management Company ("Hallie"), Mary Schultz, Debbie Butt, and Jeff Butt (collectively referred to as "Defendants") with regard to the Plaintiff's Complaint which alleges violations of the Fair Housing Act, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619 (the Act).

I. BACKGROUND

Savannah Pines, LLC and Hampton, LLC are the owners and operators of Savannah Pines Retirement Community ("Savannah Pines"), a multi-family development that is located in Lincoln, Nebraska. Savannah Pines consists of one three-story building containing 123 units and two elevators. Savannah Pines offers one and two-bedroom apartment units with extensive common use facilities. The common use facilities include a dining area that serves three meals per day, the cost of which is included in rent, a theater with a projection television and a stage for live events, an exercise room with free exercise therapist, travel agency, bank, library, computer room, rental office, salon, gift shop/pharmacy, laundry facilities, and several conference rooms.

At all times relevant to the United States' complaint, Hallie Management Company managed the operations and participated in the marketing of Savannah Pines. At all times relevant to the United States' complaint, Mary Schultz was the Vice President of Hallie Management Company and participated in the management and marketing of Savannah Pines. At all times relevant to the United States' complaint, Debbie Butt and Jeff Butt were managers at Savannah Pines and participated in the management and marketing of Savannah Pines.

A. Rental Agreement

The Defendants require all of their tenants to sign a rental agreement ("Rental Agreement"). The Rental Agreement in the past included, inter alia, a paragraph which stated "[i]n the event the health of resident deteriorates to the point that he/she can no longer care for his/her personal needs, then the manager shall notify the family, or party responsible for resident, who will then make appropriate housing arrangements elsewhere for resident." The United States alleges that this provision discriminates against persons with disabilities in violation of the Act, and Defendants deny such allegation.

Defendants have drafted a new rental agreement. A copy of the proposed rental agreement has been provided to counsel for the United States. The Defendants assert that the new rental agreement has been implemented, and the United States does not object to the proposed new rental agreement. Defendants shall distribute the new rental agreement to all current tenants and use only the new rental agreement in all future leases.

B. Elimination of Rental Agreement Addendum.

The Defendants, in the past, required all residents of Savannah Pines who use "an electric motor driven wheelchair or cart" to sign an addendum to the Rental Agreement ("Rental Agreement Addendum"), a copy of which is attached hereto as Exhibit A. The United States alleges that the Rental Agreement Addendum discriminates against persons with disabilities in violation of the Act, and Defendants deny such allegation.

Defendants have eliminated the Rental Agreement Addendum, and Defendants, their officers, employees, agents, successors and assigns and all other persons in active concert or participation with them are permanently enjoined from imposing any such addendum, or imposing the terms and conditions set forth in such addendum, in the future. Any such Rental Agreement Addendum that was executed by any current or former resident of Savannah Pines shall be null and void.

C. Motorized Scooter and Wheelchair Policy

On or about September 1, 2001, the Defendants adopted a policy (hereinafter referred to as the "9/1/01 Policy"), a copy of which is attached hereto as Exhibit B that placed several restrictions on the use of motorized scooters and wheelchairs. The 9/1/01 Policy provided, inter alia, the following: (1) that "Motorized scooters may be used only to enter or exit the building and a resident's apartment, and may not be driven or parked in hallways or any of the common areas of the building"; (2) that residents who use motorized scooters must occupy a first floor apartment unit; and (3) that residents who use motorized scooters must pay an additional $1,000 security deposit. The United States alleges that this policy discriminates against persons with disabilities in violation of the Act, and the Defendants deny such allegation.

The Defendants have drafted a new policy ("Permanent Policy"). A copy the Permanent Policy has been provided to counsel for the United States. The Defendants assert that the Permanent Policy has been implemented, and the United States does not object to the Permanent Policy. Defendants, their officers, employees, agents, successors and assigns and all other persons in active concert or participation with them are permanently enjoined from restricting or otherwise interfering with the use of motorized assistive devices at Savannah Pines in a manner inconsistent with the Act or the Permanent Policy.

II. NO ADMISSION OF LIABILITY

Defendants do not admit and, in fact, deny any liability for the alleged violations of the Act but hereby enter into this Consent Order to economically resolve this disputed claim, to forego litigation costs, and to commit themselves to establishing a reputation as a facility accessible and welcoming to residents and the public who have disabilities.

III. INJUNCTION

Defendants, their officers, employees, agents, successors and assigns and all other persons in active concert or participation with them are enjoined from discriminating on the basis of disability (1) as prohibited by the Fair Housing Act, as amended, 42 U.S.C. §§ 3601 et seq.

IV. NOTICE TO THE PUBLIC OF DEFENDANTS' NON-DISCRIMINATION POLICY

Defendants shall post and prominently display, in the rental offices of Savannah Pines, a sign no smaller than ten (10) by fourteen (14) inches indicating that all dwellings are available for rent on a nondiscriminatory basis. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement. For the duration of this Consent Order, in all future advertising in newspapers, and on pamphlets, brochures and other promotional literature regarding Savannah Pines, Defendants shall place, in a conspicuous location, the fair housing logo and a statement that the dwelling units include features for persons with disabilities required by the federal Fair Housing Act.

V. EDUCATION AND TRAINING

A. Within thirty (30) days after the date of entry of this Consent Order, the Defendants, as well as all agents or employees of the Defendants with responsibility for showing or renting apartment units or managing any other aspect of Savannah Pines, shall complete an educational program, that shall include the following:

  1. Providing a copy of this Consent Order and the federal Fair Housing Act to each agent or employee whose duties include showing, renting or managing dwelling units, and each agent or employee who supervises such activities;

  2. Instructing each individual that disability may not negatively affect the process of providing rental information to persons who make inquiry or making decisions on rental applications; and

  3. Securing the signed statement attached as Exhibit C, which is incorporated herein by reference, from each such agent or employee indicating that he or she has received, read, and understands this Consent Order and the Defendants' policy of nondiscrimination and further understands that any violation of this Order may result in sanctions against the Defendants by the Court.

B. During the period in which this Consent Order is in effect, each new employee or agent of the Defendants shall complete the educational program described above and sign the statement which is attached as Exhibit C within ten (10) days after the date on which he or she commences an employment.

VI. RECORD KEEPING AND MONITORING

A. With respect to the rental of apartment units at Savannah Pines, Defendants shall ensure that each of the following are maintained:

  1. A Rental Inquiry Log on a daily basis that sets forth the name of the individual who inquired as to the availability of a unit at Savannah Pines and whether the individual uses an assistive device (based on the employee's or agent's good faith observation), and, if the individual uses an assistive device and was rejected from living at Savannah Pines, a detailed explanation for the rejection.

B. Within sixty (60) days of the date of entry of this Consent Order, the Defendants shall deliver to counsel for the United States (2) the following documents:

  1. Copies of all written verifications of training required under Section V of this Order;

  2. A report detailing the occupancy of each dwelling unit in Savannah Pines in which a person who uses an assistive device for mobility resides, as of the date of entry of this Order; and

  3. . A photograph showing the fair housing signs required by Section IV of this Order.

C. Within twelve (12) months of the date of entry of this Consent Order, and every twelve (12) months thereafter during the period of this Consent Order, the Defendants shall deliver to counsel for the United States a detailed report covering the preceding twelve months containing information about the Defendants' compliance efforts, including but not limited to:

  1. Copies of all mandatory education acknowledgments signed by Defendants' agents and employees pursuant to Section V of this Order;

  2. Copies of all certifications of attendance of the Defendants, their agents and employees in such educational program, pursuant to Section V of this Order;

  3. Copies of the Rental Inquiry Logs maintained pursuant to Section VI of this Order; and

  4. A list setting forth the occupancy of each dwelling unit in Savannah Pines that are occupied by a person who uses an assistive device for mobility, as of the close of the reporting period.

D. During the period in which this Consent Order is in effect, the Defendants shall preserve all records that are the source of, contain, or relate to any of the information pertinent to the obligations under this Order, including all leases and other reports relating to apartment units at Savannah Pines. Upon reasonable notice to counsel for the Defendants, representatives of the United States shall be permitted to inspect and copy all such records at any and all reasonable times.

E. During the period in which this Consent Order is in effect, the Defendants shall notify counsel for the United States in writing within fifteen (15) days of receipt of any written or oral complaint against the Defendants, Savannah Pines or the Defendants' agents or employees, regarding equal opportunity or discrimination in housing. If the complaint is written, the Defendants shall provide a copy of it with the notification; if the complaint is oral, the Defendants shall include a written summary of it with the notification. The notification shall include the full details of the complaint, including the complainant's name, address, and telephone number. The Defendants shall also promptly provide the United States all information it may request concerning any such complaint and its actual or attempted resolution.

VII. COMPENSATION OF IDENTIFIED AGGRIEVED PERSONS

A. Defendants shall pay the sum of TWENTY-SEVEN THOUSAND FIVE HUNDRED DOLLARS ($27,500) to compensate Arvilla "Lorraine" Orton, Clarence Albertson, and Frances Brockbank in the following amounts:

Arvilla "Lorraine" Orton $15,000

Clarence Albertson $10,000

France Brockbank $ 2,500

Ms. Orton, Mr. Albertson, and Ms. Brockbank shall not be paid pursuant to this Section until after execution of a written release of all claims, legal or equitable, that he or she might have against the Defendants relating to the claims asserted in this lawsuit or their respective HUD complaints, similar to the release which is attached hereto and identified as Exhibit D.

B. Defendants shall compensate Orley "Frank" Helberg and Larine Helberg (the "Helbergs") by providing them, at the option of the Helbergs, (1) $15,000, or (2) eighteen (18) months of tenancy at Savannah Pines Retirement Community at no charge including, but not limited to, rent, meals, and all other amenities, services, and privileges that are provided to tenants at Savannah Pines Retirement Community as part of such tenants' monthly rental payment. (3)

Defendants shall also pay the less of TWO THOUSAND DOLLARS ($2,000) or the total moving costs incurred by the Helbergs as a result of relocating from their current residence to Savannah Pines Retirement Community. If, as a result of a physical or medical condition, the Helbergs are unable to live in the apartment unit in Savannah Pines Retirement Community for a period of six (6) months, Defendants shall pay them FIFTEEN THOUSAND DOLLARS ($15,000), reduced proportionally by the market rate for such apartment unit for each month they have occupied such unit. (4) The Helbergs shall not receive their 18 months of tenancy at Savannah Pines Retirement Community at no charge or moving costs until after execution of a written release of all claims, legal or equitable, that they might have against the Defendants relating to the claims asserted in this lawsuit or their respective HUD complaints, similar to the release which is attached hereto and identified as Exhibit E.

VIII. AGGRIEVED PERSONS FUND

A. Within thirty (30) days after the date of this Order, Defendants shall deposit in an interest-bearing escrow account the total sum of FIVE THOUSAND DOLLARS ($5,000.00) ("Aggrieved Persons Fund") for the purpose of compensating any aggrieved persons, other than the individuals addressed in section VII of this Order, who may have suffered damages as a result of Defendants' discriminatory housing practices. Any interest accruing to the fund shall become a part of the fund and be utilized as set forth herein.

B. The United States shall review the documents and information provided to it by Defendants during discovery of this matter in an attempt to identify any aggrieved persons. The United States shall complete its review and investigation of such information and documents; investigate the claims of any allegedly aggrieved persons; and, within 180 days from the entry of this Order, make a preliminary recommendation to the Court of which persons are aggrieved and an appropriate amount of damages that should be paid to the each such person. If the united States requires additional time to make these preliminary recommendations, it will so inform Defendants. The United States will inform Defendants in writing of its preliminary determinations, together with a copy of a sworn declaration from each aggrieved persons setting forth the factual basis of the claim. Defendants 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.

C. After receiving Defendants' 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 Defendants. When the Court issues an order approving or changing the Unites States's proposed distribution of funds for aggrieved persons, Defendants shall, within ten (10) days of the Court's Order, deliver to counsel for 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 and Defendants a release agreement similar in form to that attached as Exhibit D.

D. In the event that less than total amount in the fund including accrued interest is distributed to aggrieved persons, the court shall distribute the remainder in a manner consistent with the purpose of this Decree. Defendant shall make a proposal to the United States regarding distribution of the remainder of the fund. When the Court issues an order approving or changing the proposed distribution of funds, Defendant shall distribute the funds in the manner directed by the Court within ten (10) days of the Court's determination.

E. Defendant shall permit the United states, upon reasonable notice, to review any records it believes may facilitate its determinations regarding the claims of alleged aggrieved persons.

IX. CIVIL PENALTY

A. Within thirty (30) days after the entry of this Consent Order, the Defendants shall pay FOUR THOUSAND DOLLARS ($4,000) as a civil penalty to the United States pursuant to 42 U.S.C. § 3614(d)(1)(C).

B. The payments described in paragraph A of this Section shall be delivered to counsel for the United States in the form of a cashier's check payable to the "United States Department of Justice."

C. In the event that any of the Defendants or their agents or employees, during the three (3) year duration of this Consent Order, engage in any future violation(s) of the Fair Housing Act, such violation(s) shall constitute a "subsequent violation" pursuant to 42 U.S.C. 3614(d).

X. DURATION OF ORDER AND TERMINATION OF LEGAL ACTION

A. This Consent Order shall remain in effect for three (3) years after the date of its entry.

B. The United States' Complaint shall be dismissed without prejudice to the right of the United States to petition the Court, at any time during the duration of this Order, to reopen the case for the purpose of enforcing the Order. 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 for resolution.

XI. TIME FOR PERFORMANCE

Any time limits for performance imposed by this Consent Order may be extended by the mutual written agreement of the parties.

XII. COSTS OF LITIGATION

Each party to this litigation will bear its own costs and attorney's fees associated with this litigation.

So ORDERED this _____ day of ________________, 2003.

____________________________________

United States District Judge

Agreed to by the parties as indicated by the signatures of counsel below:

FOR PLAINTIFF UNITED STATES:


______________________
SCOTT P. MOORE
NE Bar No. 20752
KENNETH D. JOHNSON
Attorneys
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section
- G St.
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 307-3801

FOR DEFENDANTS:

WILLIAM G. DITTRICK
BAIRD, HOLM, McEACHEN, PEDERSEN,
HAMANN & STRASHEIM LLP
1500 Woodmen Tower
Omaha, Nebraska 68102
(402) 344-0500

EXHIBIT "C"

I have received and read the Consent Order and the federal Fair Housing Act. I understand my legal responsibilities and will comply with those responsibilities. I further understand that the Court may impose sanctions on me if I violate a provision of this Order and that my employer may also discipline me if I violate a provision of this Order. I have been informed by my employer that I will not be reprimanded by my employer for providing information to any law enforcement agency (including the U.S. Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530, telephone 202-514-4713) or official regarding my employer's compliance with the Fair Housing Act and/or the Consent Order.

___________________________         ___________________________
NAME                                                        Date

EXHIBIT "D"

RELEASE OF CLAIMS

In consideration of the payment of the sum of _____________ dollars ($_______), pursuant to the Consent Order entered in United States v. Savannah Pines, LLC, Case Number 401CV3303 (D. Neb.), I hereby release Savannah Pines, LLC, Hampton, LLC, Hallie Management Company, Mary Schultz, Debbie Butt, Jeff Butt (referred to hereafter collectively as the "Defendants"), their representatives, servants, successors, shareholders, employees, officers, directors, heirs, administrators, executors, insurers, insureds, affiliates, and assigns from any and all liability for any claims, legal or equitable, I may have against the Defendants, their representatives, servants, successors, shareholders, employees, officers, directors, heirs, administrators, executors, insurers, insureds, affiliates, and assigns arising (1) out of the issues alleged in the above-styled action or (2) out of any known claims relating to any rental or lease or business dealings with Savannah Pines, LLC or Hallie Management Company or any of their officers, directors, or employees.

In further consideration of the consideration paid to me by the Defendants, I agree to dismiss with prejudice the complaint I filed with the United States Department of Housing and Urban Development and the Nebraska Equal Opportunity Commission against the Defendants, HUD Case No. /NEOC Case No. ___________________________ , and any other cases or complaint I now have against any of the Defendants.

I fully acknowledge and agree that this release of the Defendants, their representatives, servants, successors, shareholders, employees, officers, directors, heirs, administrators, executors, insurers, insureds, affiliates, and assigns shall be binding on my heirs, representatives, executors, successors, administrators, and assigns.

I acknowledge and agree that the above-referenced payment does not constitute and are not to be construed as an admission or acknowledgment of liability on the part of the Defendants, their liability being expressly denied.

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                                                        DATE

NEBRASKA

_________ COUNTY

On this ____ day of ______________, 2003, before me personally appeared_____________________ , to me known to be the person described herein and whoexecuted the foregoing instrument and they acknowledged that they voluntarily executed thesame.

________________________________
Notary Public

My commission expires: ___________

EXHIBIT "E"

RELEASE OF CLAIMS

In consideration of the receipt of EIGHTEEN (18) MONTHS OF TENANCY AT SAVANNAH PINES RETIREMENT COMMUNITY AT NO CHARGE and PAYMENT OF MOVING COSTS, pursuant to the Consent Order entered in United States v. Savannah Pines, LLC, Case Number 401CV3303 (D. Neb.), I hereby release Savannah Pines, LLC, Hampton, LLC, Hallie Management Company, Mary Schultz, Debbie Butt, Jeff Butt (referred to hereafter collectively as the "Defendants"), their representatives, servants, successors, shareholders, employees, officers, directors, heirs, administrators, executors, insurers, insureds, affiliates, and assigns from any and all liability for any claims, legal or equitable, I may have against the Defendants, their representatives, servants, successors, shareholders, employees, officers, directors, heirs, administrators, executors, insurers, insureds, affiliates, and assigns arising (1) out of the issues alleged in the above-styled action or (2) out of any known claims relating to any rental or lease or business dealings with Savannah Pines, LLC or Hallie Management Company or any of their officers, directors, or employees.

In further consideration of the consideration given to me by the Defendants as described above, I agree to dismiss with prejudice the complaint I filed with the United States Department of Housing and Urban Development and the Nebraska Equal Opportunity Commission against the Defendants, HUD Case No. 07-01-0713-8 and NEOC Case Nos. 1-01/02-9-1629-H and 1-01/02-9-1630-H, and any other cases or complaint I now have against any of the Defendants.

I fully acknowledge and agree that this release of the Defendants, their representatives, servants, successors, shareholders, employees, officers, directors, heirs, administrators, executors, insurers, insureds, affiliates, and assigns shall be binding on my heirs, representatives, executors, successors, administrators, and assigns.

I acknowledge and agree that the above-referenced payment does not constitute and are not to be construed as an admission or acknowledgment of liability on the part of the Defendants, their liability being expressly denied.

I hereby acknowledge that I have read and understand this release and have executed it voluntarily and with full knowledge of its legal consequences.

__________________________________                            _____________________
ORLEY "FRANK" HELBERG                                                DATE

__________________________________                           _____________________
LARINE HELBERG                                                                DATE

NEBRASKA

_________ COUNTY

On this ____ day of ______________, 2003, before me personally appeared_____________________ , to me known to be the person described herein and who executed the foregoing instrument and they acknowledged that they voluntarily executed the same.

_____________________________________
Notary Public

My commission expires: _______________

1. Although the Fair Housing Act refers to the protected class as persons with "handicaps," the term "disabilities" has been held to be generally synonymous and generally preferred. See Helen L. v. DiDario, 46 F.3d 325, 330 n.8 (3d Cir. 1995) (noting change in language of Rehabilitation Act to reflect "Congress' awareness that individuals with disabilities find the term 'handicapped' objectionable"). Therefore, parties agree to the term "disability" being used herein.

2. All documents or other communications required by this Order to be sent to counsel for the United States shall be addressed as follows: Chief, Housing and Civil Enforcement Section, Civil Rights Division, DJ 175-45-49, United States Department of Justice- G Street, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530.

3. The approximate market value of 18 months of tenancy for the apartment unit in which the Helbergs will reside is $50,760.

4. For example, if the market rate for the apartment unit occupied by the Helbergs is $2,820 per month and Helbergs reside in the unit for only three months, Defendants shall pay them $3,720.

Document Filed: April 30, 2003