United States Attorney
KRIS A. MCLEAN
Assistant United States Attorney
Post Office Box 8329
Missoula, Montana 59807
105 East Pine, Second Floor
Missoula, Montana 59802
Tel.: 406-542-8851
Fax: 406-542-1476
RALPH F. BOYD, JR.
Assistant Attorney General
JOAN A. MAGAGNA
ISABELLE M. THABAULT
HOWARD R. GRIFFIN
Attorneys
United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue NW
The Northwestern Building, Seventh Floor
Washington, DC 20530
Tel.: 202-514-4713
Fax: 202-514-1116
For the plaintiff United States of America
UNITED STATES OF AMERICA,
Plaintiff, and
MONTANA FAIR HOUSING, INC.,
Plaintiff Intervener,
v. CAUSE NO. CV 02-128-M-LBE
JANICE SCHABERG,
Defendant.
_____________________________________
BEN COE,
Plaintiff,
v. CAUSE NO. CV-01-198-M-LBE
JANICE SCHABERG,
Defendant.
CONSOLIDATED CONSENT ORDER- The United States filed this action against the defendant on behalf of Ben Coe and Montana Fair Housing, Inc., pursuant to section 812(o) of the Fair Housing Act, as amended 42 U.S.C. §3612(o). Defendant Janice Schaberg owns and manages rental dwellings located at 7160, 7180, 7182, 7184, and 7220 Highway 200 East, Missoula, Montana. In its Complaint the United States alleges that the defendant discriminated against Ben Coe by refusing to rent or otherwise make available to him a rental dwelling on account of sex, in violation of section 804 of the Fair Housing Act, 42 U.S.C. §3604, and aggrieved Montana Fair Housing, Inc., by causing it to divert resources from its other activities to investigate whether the defendant had violated the Fair Housing Act and to pursue a complaint with the United States Department of Housing and Urban Development. Defendant denies that she violated the Fair Housing Act, but, to avoid costly and protracted litigation, she and the other parties agree that the controversy should be resolved without the necessity of an evidentiary hearing. The parties have consented to the entry of this Order as indicated by their signatures appearing below. PURPOSES OF THIS ORDER
- The parties have agreed to the entry of this Order for the following purposes:
- To ensure, by the specific means set forth herein, that the defendant does not, on the basis of sex, refuse to rent or otherwise make unavailable any rental dwelling owned by her; and
- To provide compensatory relief to Ben Coe and Montana Fair Housing, Inc., for the injuries they allege to have suffered as a result of the defendant's conduct.
- To also settle and fully resolve the case of Ben Coe v. Janice Schaberg, Cause No. CV 01-198-M-LBE.
CONSOLIDATION OF CASES - To promote judicial efficiency the cases of Ben Coe v. Janice Schaberg, Cause No. CV 01-198-M-LBE, and United States, et al. v. Janice Schaberg, Cause No. CV 02-128-M-LBE, and are hereby consolidated, and this Consent Order shall resolve the consolidated litigation. GENERAL NONDISCRIMINATION PROVISIONS
- The defendant, her employees, agents, assigns, anyone acting under her direction, and all those acting in concert or participation with any of them, are hereby enjoined from:
- Refusing to rent or refusing to negotiate for the rental of, or otherwise making unavailable dwellings to persons because of sex;
- Imposing different terms and conditions in the rental of dwellings on the basis of sex;
- Making statements with respect to the rental of a dwelling that indicate a preference or limitation on the basis of sex;
- Engaging in any conduct which has the intent or effect of deterring, discouraging, and/or interfering with, on the basis of sex, any person who inquires about or applies for residency in any dwelling owned or operated by the defendant; and
- Taking any other action in violation of the Fair Housing Act, as amended, 42 U.S.C. §3601-3619.
COMPENSATORY RELIEF - In the event that the defendant sells real property owned by her at 352 One Way Road, Columbia Falls, Montana, she shall pay $18,000 to Tim Kelly as trustee for Ben Coe and Montana Fair Housing, Inc., ("the beneficiaries") no later than 30 days after settlement of the sale. If, however, the property at 352 One Way Road remains unsold on June 10, 2003, the defendant shall instead, on that date, 1) pay $8,000 in cash to Tim Kelly as trustee for the beneficiaries, and 2) execute and deliver to Tim Kelly a promissory note promising to pay an additional $12,000 to Tim Kelly as trustee for the beneficiaries, which note shall bear interest at an annual rate of 3% with interest payable quarterly and the principal payable in 60 months. This note may be secured by any or all rental properties owned by the defendant. Nevertheless, if, prior to maturity of this note, the defendant sells any rental property owned by her, she shall pay the principal in full no later than 30 days after settlement of such sale.
- In consideration of the defendant's payment, Ben Coe and Montana Fair Housing, Inc., shall execute and deliver to the defendant a release in the form of Exhibit 1, attached hereto. Ben Coe and Montana Fair Housing, Inc., shall also release any liens or notices of pending litigation filed against real property owned by the defendant. AFFIRMATIVE RELIEF
- The defendant, her employees, agents, assigns, anyone acting under their direction and all those acting in concert or participation with any of them shall take the following affirmative measures in order to ensure compliance with all state and Federal fair housing laws and to ensure that, in the future, all rental dwellings owned or operated by them will be made available for rental on an equal basis and under the same terms and conditions to all persons:
- No later than thirty (30) days after the date of entry of this Order, the defendant and each employee or agent of the defendant who is involved in the rental of dwellings owned or operated by the defendant, shall execute a statement, in the form of Exhibit 2, attached hereto, verifying that he or she has read this Order and that he or she understands his or her legal responsibilities under it and the Fair Housing Act, as amended.
- If the defendant employs or otherwise contracts with any other person to assist in the rental of any dwelling owned or operated by her during the term of this Order, she shall, no later than ten (10) days after entering into such a relationship:
- instruct any such person in writing that all rentals shall be in accordance with the Fair Housing Act, as amended, and that all dwellings must be rented to any qualified prospective purchaser without regard to his or her race, color, religion, sex, familial status, national origin, or handicap;
- furnish to each such employee or agent a copy of this Order; and
- require each employee to sign the statement in the form of Exhibit 2, attached hereto, indicating that he or she has read this Order and understands his or her legal responsibilities under it and the Fair Housing Act, as amended.
- All advertising related to the rental of any dwelling owned or operated by the defendant that is placed in any newspaper or telephone directory, or on radio, television or in other media, or on any sign, pamphlet, brochure, handout, business card, stationery, form or other writing that is routinely used to communicate with prospective tenants, shall include the words "Equal Housing Opportunity". The words shall be prominently placed and legible. In addition, all newspaper and radio advertising by the defendant shall conform to the provisions of the HUD advertising guidelines, which formerly appeared at 24 C.F.R. Part 109 (1989) (1) (a copy of which is attached as Exhibit 3).
- The defendant shall post, in a prominent location in all places where defendant meets prospective tenants, a sign no smaller than 11 inches by 14 inches that indicates that all units are available on a nondiscriminatory basis (a poster which comports with the HUD regulations set forth at 24 C.F.R. Part 110, a copy of which is appended to this Order as Exhibit 4, will satisfy this requirement).
- Any rental applications used by the defendant shall contain the following language: "We are an equal opportunity housing provider. We do not discriminate on the basis of race, color, sex, national origin, religion, handicap, or familial status (having children under 18 years of age)."
- The defendant shall complete fair housing training by Montana Fair Housing, Inc., or, at the defendant's expense, by another organization approved by Montana Fair Housing, Inc.
- The defendant shall distribute brochures of Montana Fair Housing, Inc., to current and future tenants.
The costs of all measures required by this section shall be borne by the defendant separate and apart from any funds she is obligated to expend herein.
RECORD KEEPING - No later than ten days after the date of this Order, the defendant shall maintain the following records:
- Representative samples of all advertising and any other printed materials used by the defendant to promote the rental of dwellings owned or operated by her, including but not limited to newspaper advertisements, fliers and business cards;
- A list of all persons with whom the defendant has contracted or employed to assist in the rental of her dwellings;
- All application forms completed by prospective or actual tenants and all other documents relating to the application process, including credit check records, correspondence and receipts; and
- All waiting lists (if any are kept).
INSPECTION OF RECORDS - As long as this Order remains in effect counsel for the United States shall have the right to inspect and copy, during normal business hours and upon reasonable written notice to the defendant, any records described in the preceding section of this Order or any other records kept by defendant that would be helpful to an assessment of compliance with this Order. Counsel for the United States shall attempt to minimize any inconvenience and expense to the defendant during any inspection and copying of such records. DISMISSAL
- The consolidated cases Ben Coe v. Janice Schaberg, Cause No. CV 01-198-M-LBE, and United States v. Janice Schaberg, Cause No. CV 02-128-M-LBE, are dismissed with prejudice. Nevertheless, the court retains jurisdiction to enforce the terms of this Order and these cases may, at any time until three years after the date of this Order, be reopened to resolve any claims or disputes arising under it. 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. Nevertheless, in the event of a failure by the defendant to act in accordance with this Order, the United States, Ben Coe, and/or Montana Fair Housing, Inc., 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 attorneys' fees which may have been occasioned by the defendant' actions.
It is so ORDERED, ADJUDGED, and DECREED this _____ day of _____________, 2003.
___________________________________
UNITED STATES MAGISTRATE JUDGE
Agreed to by the parties as indicated by the signatures below.
For the Defendant:
_________________________
JANICE SCHABERG
Defendant
5050 Mallard Way
Missoula, Montana 59801
_________________________
J. TIFFIN HALL
Attorney for the Defendant
Post Office Box 2839
Missoula, Montana 59806
For the Plaintiffs:
RALPH F. BOYD, JR.
Assistant Attorney General
WILLIAM W. MERCER
United States Attorney
_________________________
JOAN A. MAGAGNA
Chief
ISABELLE M. THABAULT
Deputy Chief
HOWARD R. GRIFFIN
Attorneys
Housing and Civil Enforcement
Section
Civil Rights Division
United States Department of Justice
950 Pennsylvania Avenue, NW
The Northwestern Building, Seventh Floor Washington, DC 20530
_________________________
TIM KELLY
Attorney for Ben Coe
Post Office Box 65
Emigrant, Montana 59027
_________________________
MARY GALLAGHER
Attorney for Montana Fair Housing, Inc.
Post Office Box 1797
Missoula, Montana 59806
RELEASORS: ______________________________ [Montana Fair Housing, Inc. or Ben Coe]
RELEASEE: Janice Schaberg
DATE OF CLAIM: May, 2000
DESCRIPTION OF CLAIM: Alleged violation of rights under Federal Fair Housing Act, 42 U.S.C. § 3601, et seq.
SUM OF SETTLEMENT: $18,000 (to be shared between Ben Coe and Montana Fair Housing, Inc., in partial settlement of Cause Nos. CV-02-128-M-LBE and CV-01-198-M-LBE)
CIVIL CAUSES: United States District Court, Cause Nos. CV-02-128-M-LBE and CV-01-198-M-LBE
- Release
The undersigned Releasors acknowledge receipt of the above sum of money and in consideration for payment of such sum, fully and forever releases and discharges Releasee, Releasee's heirs, personal representatives, successors, assigns, agents, partners, employees and attorneys from any and all actions, claims, causes of action, demands, or expenses for damages or injuries, whether asserted or unasserted, known or unknown, foreseen or unforeseen, arising out of the described claim.
- Future Damages
Inasmuch as the injuries, damages, and losses resulting from the events described herein may not be fully known and may be more numerous or more serious than it is now understood or expected, the Releasors agree, as a further consideration of this agreement, that this Release applies to any and all injuries, damages and losses resulting from the claim described herein, even though now unanticipated, unexpected and unknown, as well as any and all injuries, damages and losses which have already developed and which are now known or anticipated.
- No Admission of Liability
It is understood that the above-mentioned sum is accepted as the sole consideration for full satisfaction and accord to compromise a disputed claim, and that neither the payment of the sum by Releasee nor the negotiations for settlement shall be considered as an admission of liability.
- Apportionment of Payment to Lienholders
This payment shall be apportioned by Releasors among doctors, hospitals, all other health care providers and services, and any other individuals, companies, agencies, workers' compensation insurers or agencies, political subdivisions, or attorneys who may have valid liens or rights of subrogation or reimbursement, and Releasors agree to indemnify Releasee from and against all such claims by such parties, including payment of attorney's fees and costs.
- No Additional Claims
Releasors represent that no additional claims are contemplated against any other party potentially liable for the losses, damages, and injuries for which this Release is given. In the event any additional claim is made which directly or indirectly results in additional liability exposure to Releasee for the losses, injuries, and damages for which this Release is given, Releasor's covenants and agrees to indemnify and save Releasee harmless from all such claims and demands, including reasonable attorneys' fees and all other expenses necessarily incurred.
- Stipulation for Dismissal With Prejudice
Releasors stipulate and agree that Releasor's attorney of record shall dismiss with prejudice, as fully settled upon the merits, the above-described civil action. Each party shall pay their respective costs and attorneys' fees.
- Disclaimer
Releasor has carefully read the foregoing, discussed its legal effect with Releasor's attorney, understands the contents thereof, and sign the same of Releasor's own free will and accord.
This Release shall be binding upon Releasor's heirs, successors, personal representatives and assigns.
- Confidential
It is further understood and agreed that there shall be no requirements of confidentiality in connection with this settlement or resulting consent order, except that the name of Janice Schaberg's daughter shall not be disclosed and she may only be described as a female tenant.
DATED this ____ day of _____________________ 2003.
CAUTION: READ BEFORE SIGNING!
________________________________________
[Signature of releasor]
STATE OF MONTANA )
):ss
County of__________________ )
On this_____day of_________________, 2003, before me, a notary public of the State of Montana, personally appeared___________________________, known to me to be the
person named in the foregoing Release, and acknowledged to me that he/she executed the same as his/her free act and deed, for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and year in this certificate first above written.
__________________________________________
Printed Name:_________________________________
Notary Public for the State of Montana
Residing at___________________________________
My commission expires_________________________
STATEMENT OF RECEIPT AND UNDERSTANDING OF CONSENT ORDER AND FAIR HOUSING ACT
I, ______________________________, hereby acknowledge that I have received copies of and read the Fair Housing Act, 42 U.S.C. §§ 3601-19, and the Consent Order entered by the United States District Court for the District of Montana in United States v. Janice Schaberg,, Cause No. CV02-128-M-LBE.
I understand my obligation under these documents not to discriminate on the basis of race, color, religion, sex, familial status, national origin, or handicap in making dwellings available for sale or for rental.
I agree to comply with the Fair Housing Act and the Court's Order. I fully understand my legal obligations under the Fair Housing Act and the Order, and I am aware that my failure or refusal to adhere to them could result in possible sanctions against me.
Signed: ____________________________
Dated: ____________________________
STATE OF MONTANA )
):ss
County of__________________ )
On this_____day of_________________, 2003, before me, a notary public of the State of Montana, personally appeared___________________________, known to me to be the person named in the foregoing Release, and acknowledged to me that he/she executed the same as his/her free act and deed, for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and year in this certificate first above written.
____________________________________________
Printed Name:_________________________________
Notary Public for the State of Montana
Residing at___________________________________
My commission expires_________________________
1. These guidelines no longer appear in C.F.R. because they were removed therefrom in 1996 in an effort to streamline the regulations. They were nevertheless retained by HUD.
Document Filed: February 6, 2003 > >