Housing And Civil Enforcement Cases Documents

UNITED STATES OF AMERICA,
     Plaintiff,

v.

CIVIL ACTION No. 96-C-4996

CITY OF WAUKEGAN; DONALD
WEAKLY; and NOAH MURPHY,
     Defendants.

___________________________

1. INTRODUCTION

This action was brought by the United States to enforce the provisions of the Fair Housing Act, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601, et seq. In its Complaint, the United States alleges that defendants City of Waukegan ("the City," "Waukegan," or "the City of Waukegan"), Donald Weakley, and Noah Murphy (collectively referred to as "the defendants") have engaged in a pattern or practice of discrimination an the basis of national origin in violation of the Fair Housing Act. In particular, the Complaint alleges that the defendants have discriminated intentionally against Hispanics in adopting and enforcing an ordinance that restricts the ability of persons related by blood or marriage to live together in the same dwelling. The Complaint further alleges that the defendants have targeted the enforcement of this restriction, as well as other provisions of Waukegan's Property Maintenance and Housing Code ("the Housing Code"), on Hispanic residents.

The defendants dispute the United States' material allegations and contend that they have complied with all federal laws and regulations. However, the parties desire to avoid unnecessary litigation and agree that this dispute should be resolved without an evidentiary hearing. Waiving the entry of findings of fact and conclusions of law, the parties have agreed to the entry of this Consent Order, as indicated by the signatures appearing below.

2. GENERAL INJUNCTIVE RELIEF

It is hereby ORDERED, ADJUDGED, and DECREED:

1. The defendants, their agents, employees, successors, and all persons in active concert or participation with the defendants are permanently enjoined from enforcing the family definition contained in Section PM 202.0 of Waukegan's Housing Code, or any other rule, policy, practice, or procedure that restricts the ability of persons to live together in residential dwellings because they are related by blood, marriage, adoption, or legal custody. This provision does not limit the authority of the City of Waukegan to prevent overcrowding that might endanger public health and safety by enforcing reasonable restrictions on the maximum number of occupants permitted to reside in a dwelling- See Paragraphs C and D.

2. The defendants, their agents, employees, successors, and all persons in active concert or participation with the defendants are permanently enjoined from engaging in any activity or practice, or from maintaining any policy or procedure, that:
   1. Makes unavailable or denies a dwelling unit to any person because of national origin;
   2. Discriminates against any person on the basis of national origin in the terms, conditions or privileges of the rental or sale of a dwelling or in the provision of services in connection with the rental or sale of a dwelling;
   3. Makes, prints, or publishes statements with respect to the rental or sale of a dwelling unit that indicates a preference, limitation, or discrimination based on familial status or national origin; or
   4. Interferes with persons in their exercise of, or on account of their having exercised or enjoyed, or an account of their having aided other persons in the exercise or enjoyment of rights protected by the Fair Housing Act.

3. Unless otherwise agreed to by the parties, the City of Waukegan shall not enforce any limitation on the number of persons who may occupy a dwelling that is any more restrictive than the standards set forth in Sections 402-405 of the BOCA Property Maintenance Code (1996 Edition) ("BOCA Code").

4. In enforcing the Housing Code and inspecting residents' homes, the defendants shall:
   1. Not select any dwelling for inspection based on the national origin of its occupants;
   2. Conduct all inspections in accord with local, state, and federal law;
   3. Request the name and address of all persons complaining to the City regarding a possible violation of the Housing Code, although the City may still act on a complaint even if the complainant declines to provide his or her name and address;
   4. Not make any interior inspection in response to a complaint unless there is a reasonable basis to believe that the Housing Code is being violated; and
   5. Provide written notice of all alleged violations to any person accused of violating the Housing Code or related residential property and zoning codes; the notice shall inform the person of his or her right to appeal the allegations (including any right to judicial review), describe the process for making an appeal, and identify and provide the telephone number of Waukegan's Fair Housing Counselor. See Part III.

   6. The City of Waukegan, for the duration of this Order, shall notify the United States of any proposal it enacts or implements that requires a minimum amount of habitable floor space per person in a dwelling or otherwise restricts the total number of persons who may live in a dwelling based on its size or number of rooms. This notice shall be given within thirty (30) days of such enactment or implementation. ⁽¹⁾

3. DESIGNATION OF MUNICIPAL FAIR HOUSING COUNSELOR

1. Within sixty (60) days after the date of entry of this Consent Order, the City of Waukegan shall designate an individual, subject to approval by the United States, to be the City's Municipal Fair Housing Counselor ("the Counselor"). The City shall ensure that the Counselor is fluent in Spanish as well as English. The Counselor shall receive complaints of alleged housing discrimination within the City and refer these complaints to the United States Department of Housing and Urban Development's (HUD's) Chicago Fair Housing Office.

2. The Counselor shall provide information concerning housing opportunities within Waukegan.

3. The Counselor shall maintain copies of this Order, copies of the Fair Housing Act, copies of HUD's informational pamphlets which explain the Fair Housing Act in both English and Spanish, copies of HUD complaint forms in both English and Spanish, and copies of the portions of the City's municipal ordinances that relate to occupancy of dwellings and safety requirements of dwellings. Copies of this Order and of the City's municipal ordinances shall be made available to any person, upon request and upon payment of a reasonable per page copy charge not to exceed five (5) cents per page. Copies of the other materials set forth in this paragraph shall be made freely available to any person, upon request, without charge.

4. MANDATORY EDUCATION AND TRAINING

1. Within sixty (60) days after the date of entry of this Order, the City of Waukegan shall provide training on the requirements of the amended Fair Housing Act to all employees with responsibilities that relate to the implementation and enforcement of all zoning, housing, occupancy, or land use regulations. At a minimum, this shall include the director of governmental services, the building commissioner, the zoning administrator, and all code inspectors. The training shall be conducted by a qualified person or organization selected by the City and subject to approval by the United States. If, during the term of this Order, the City of Waukegan hires a new building commissioner, the City shall provide additional training for the new commissioner from a person or organization approved by the United States. Any expenses associated with the training described in this Paragraph shall be borne by the City. All persons attending a training program pursuant to the requirements of this Paragraph or Paragraph B shall have their attendance certified in writing by the person conducting the training. See Attachment 1.

2. The person designated and approved as the City's Fair Housing Counselor shall complete the training specified in Paragraph A. If the Counselor is not designated and approved before the training in Paragraph A is undertaken, or if the original Counselor is replaced by a new Counselor, the City shall provide additional training for the Counselor from a person or organization approved by the United States. Any expenses associated with the Counselor's training shall be borne by the City.

3. Within thirty (30) days after the date of entry of this Order, the City shall conduct and complete the following educational program for at least the following employees or agents: the director of governmental services, the building commissioner, the zoning administrator, and all code inspectors. Such program shall include:
   1. Furnishing to each such employee or agent a copy of this Order, and informing each such person, in person, of the duties of the City and its employees and agents pursuant to the Order; and
   2. Securing the signed statement appearing at Attachment 2 from each such employee and agent indicating that he or she has received, read, and understands this Order and the policy of nondiscrimination mandated by it, and further understands that violation of this Order may result in sanctions against them by the City and/or the Court.

   3. For the duration of this Order, each new employee or agent of the City with responsibilities relating to housing, occupancy, zoning, or land use regulations shall be given a copy of and required to read this Order, and sign the statement appearing at Attachment 2, within fourteen (14) days after the date he or she commences an employment or agency relationship with the City.

   4. The statements and certifications prescribed by this Part of the Order shall be maintained in the office of the City Clerk for the duration of this Order.

5. COMMUNITY MEETINGS AND FAIR HOUSING POSTER

1. Within thirty (30) days after completion of the training specified in Part IV of this Order, the City of Waukegan shall implement a program of regularly scheduled meetings to inform the public about housing opportunities available in Waukegan, as well as the City of Waukegan's health and safety standards for the maintenance of homes and apartments. The City of Waukegan shall conduct at lea st four of these meetings a year for the duration of this Order. The meetings shall be held in community centers, churches, or other locations accessible to the public in Waukegan's neighborhoods. Two of the meetings each year shall be scheduled during the evening or on weekends so that residents who work during the day may attend. At each meeting, the City of Waukegan shall provide a translator who is fluent in both English and Spanish.

2. Two weeks prior to each meeting described in Paragraph A, the City of Waukegan shall post notices and publish advertisements specifying the location, date, time, and purpose of each meeting and inviting the public to attend. Each notice and advertisement shall include the following equal opportunity statement: "The City of Waukegan encourages and supports a fair and open housing market in which there are no unlawful barriers to obtaining housing. The City of Waukegan enforces its laws and regulations on an equal opportunity basis without discriminating on the basis of race, color, religion, sex, handicap, familial status or national origin." The City shall post the notices, printed in both Spanish and English, in prominent and conspicuous locations at City Hall, the building department offices, and in other municipal buildings. The City shall publish Spanish versions of the advertisements in diverse sections of La Raza and La Semana, and English versions in diverse sections of The News Sun. Each advertisement shall be at least 2-1/2" by 4-1/2".

3. If any two consecutive meetings described in Paragraph A are attended by less than ten (10) persons, the City of Waukegan may submit to counsel for the United States a proposal for a revised schedule of meetings. If the United States does not object to the proposed revisions within sixty (60) days, the City of Waukegan may implement the revised schedule. If the United States does object within sixty (60) days, counsel for the United States shall notify the City in writing. Thereupon, the proposed revised schedule shall not be implemented until the parties have resolved their dispute, or in the event they are unable to resolve it, the Court has resolved it.

4. Within ninety (90) days from the date of entry of this Order, the City of Waukegan shall design and submit to the United States for approval a poster, measuring at least 24 inches by 36 inches, which contains a statement that Waukegan promotes equal housing opportunity. In addition, the poster shall state the address and telephone number of the Fair Housing Counselor's office, as described in Part III of this Order, and a statement that anyone who believes that they have been discriminated against by the City may file a complaint with the Counselor, HUD, or the Department of Justice. The address and telephone number for HUD's Chicago Fair Housing Office, as well as the address and telephone number of the Housing Section of the Civil Rights Division, shall also be included on the poster. The poster shall contain the same information in both English and Spanish.

   Upon receipt of the United States' approval of the poster, the poster shall be placed in a prominent and conspicuous location in the City Hall and the building department's office.

6. COMPENSATION

1. The City of Waukegan agrees to compensate persons whom the United States alleges have been harmed by the Defendants' allegedly discriminatory conduct. The City of Waukegan will compensate identified persons pursuant to the procedures set forth below. The City agrees to pay up to a total of $175,000 to compensate all identified aggrieved persons.

2. Within thirty (30) days of the date of entry of this Order, and twice again during the following month, the City shall publish a Notice to Potential Victims of Housing Discrimination ("Notice") in La Raza, La Semana, and The News-Sun. Within one hundred (100) days from the entry of this Order, the City shall notify counsel for the United States in writing of the date on which the last such Notice was published. The City shall at that time also provide representative copies of the Notices as published and written verification that all required advertisements were published.

3. Each Notice shall set forth a summary of the legal and evidentiary contentions of the United States, the City of Waukegan's denial, and a general statement of the relief provided under this Consent Order. Each Notice shall also contain a statement that the United States seeks information from any persons who claim that based on their national origin they were subjected to inspections of their homes, orders to vacate occupants, orders to sign compliance affidavits, or other allegedly discriminatory treatment. Each Notice shall invite such persons to contact counsel for the United States concerning their complaints within thirty (30) days of the publication of the Notice. The parties have agreed upon the text of this Notice and upon the sizes of the advertisements to be placed, as set forth in Attachment 3. The Notices published in La Raza and La Semana shall be written in Spanish.

4. The United States may provide the City of Waukegan with a list of the names and addresses of potentially aggrieved parties. Within forty-five (45) days from the date the United States delivers this list, the City shall mail English and Spanish copies of the Notice, see Attachment 3, to every person on the list.

5. The City shall permit representatives of the United States to review any records in its possession or control or the possession or control of any of its employees, agents, or representatives that the United States believes to be useful in identifying persons who may be entitled to relief under this Order. Upon reasonable notice, representatives of the United States shall be permitted to make this inspection on any business day as early as the day after entry of this Order.

6. The parties have agreed that the United States shall make an initial determination of the households that are eligible to receive compensation pursuant to this Order and shall in its sole discretion determine the amount of compensation each household shall receive. The term "household" means all persons residing in a dwelling at the time of the challenged conduct. In making these determinations, the United States has agreed to apply the following guidelines:
   1. Each aggrieved household that vacated residents from a dwelling with adequate space for the occupants, as defined in Part II.C of this Order, in response to a verbal or written order from the City shall be entitled to receive up to a maximum of twenty-five thousand dollars ($25,000) in compensation;
   2. Each aggrieved household that received a verbal or written order from the City that limited the occupancy of the dwelling to levels more restrictive than those referenced in Part II.C of this Order shall be entitled to receive up to a maximum of fifteen thousand dollars ($15,000) in compensation;
   3. Each aggrieved household that was subjected to an interior inspection an more than one occasion when no violation was found in the previous inspection and the subsequent interior inspection or inspections were based on vague accusations and not specific evidence which provided a reasonable basis to believe that a violation had occurred shall be entitled to receive up to a maximum of fifteen thousand dollars ($15,000) in compensation;
   4. Each aggrieved household that was subjected to disparate treatment than other similarly situated households in the City's enforcement of its Housing Code shall be entitled to receive up to a maximum of five thousand dollars ($5,000) in compensation;
   5. Each aggrieved household that was subjected to an interior inspection by the City based on vague accusations and not specific evidence which provided a reasonable basis to believe that a violation had occurred shall be entitled to receive up to a maximum of five thousand dollars ($5,000) in compensation; and
   6. Each aggrieved household in which a representative of the household was not notified that the household was in violation of the Housing Code but was required to sign a statement promising not to violate the law shall be entitled to receive up to a maximum of five thousand dollars ($5,000) in compensation.

   An aggrieved household may receive compensation in excess of an amount specified above only to the extent that the members of the household can document that their out-of-pocket expenses exceeded that amount.

7. Allegedly aggrieved persons seeking compensation pursuant to this Order shall submit to counsel for the United States a Proof of Claim made under oath. The Proof of Claim shall list all members of the household at the time of the challenged conduct.

8. Within one hundred and eighty (180) days from the date that the last Notices discussed in Paragraphs B-D are mailed or published, whichever occurs later, the United States shall notify counsel for the City of Waukegan in writing of the United States' determinations of the persons who have been aggrieved by the City's allegedly discriminatory practices. At this time, the United States shall permit counsel for the City of Waukegan to review any Proofs of Claims submitted by persons identified by the United States as aggrieved persons. In the event that the United States receives more than thirty (30) claims, the United States shall have an additional ninety (90) days in which to investigate and review all claims, before notifying the City of Waukegan of the United States' determinations and providing the City copies of the Proofs of Claims.

   If the City of Waukegan contends that any of the allegedly aggrieved persons identified by the United States have not suffered one of the grievances identified in Paragraph F, the City shall inform the United States in writing of these objections within fifteen (15) days after counsel for the United States delivers the Proofs of Claims to counsel for the City. At this time, the City of Waukegan shall produce any evidence that it contends establishes that certain persons identified by the United States as aggrieved persons are not in fact aggrieved.

9. The parties shall endeavor in good faith to resolve any disputes as to whether specific individuals have been aggrieved by the City's actions, as specified in Paragraph F. If the parties are unable to resolve their differences, the City of Waukegan may, within thirty (30) days after the United States' delivery of the Proofs of Claims, notify counsel for the United States of the City's intent to submit the disputed claims to an arbitrator. Within ten (10) days after the notification, the United States and the City of Waukegan shall jointly select and approve an arbitrator to hear the dispute. The arbitration shall be limited exclusively to the issue of whether the individuals identified as aggrieved persons meet the guidelines set forth in Paragraph F. The City agrees that it will not dispute the specific amount of compensation due to an aggrieved person. The arbitrator may review documentary evidence submitted by the parties and hold hearings to resolve any specific individual's status. The City of Waukegan shall bear the burden of demonstrating to the arbitrator by clear and convincing evidence that an individual identified as an aggrieved person does not meet the guidelines specified in Paragraph F. The City voluntarily and knowingly waives the right to appeal the arbitrator's findings and agrees to bear the arbitrator's fees and expenses.

10. Within thirty (30) days of the United States' delivery of the Proofs of Claims -- or, if any disputed claims have been submitted to an arbitrator, within thirty (30) days after the arbitrator has notified the parties of his or her findings -- the United States shall notify counsel for the City of Waukegan in writing of the amount of compensation due each aggrieved person. Within twenty-one (21) days of receiving this notification, the City shall deliver to counsel for the United States checks payable to each aggrieved person in the amounts specified by the United States. In consideration of the City's payments, each person who receives a payment shall execute a Release of Claim Form substantially similar to that appearing in Attachment 4 before the United States distributes the City's check to that person.

11. Any amount remaining of the one hundred and seventy-five thousand dollars ($175,000) set aside for compensating aggrieved persons after all sums have been paid to aggrieved persons shall be retained by the City of Waukegan.

7. CIVIL PENALTY

Pursuant to Section 814(d)(1)(C) of the Fair Housing Act, 42 U.S.C. § 3614(d)(1)(C), the City of Waukegan shall pay as a civil penalty the sum of twenty-five thousand dollars ($25,000) to the United States. This penalty shall be paid in the form of a check payable to the United States delivered to counsel for the United States within twenty-one (21) days of the date of entry of this Order. Any future violations of the Fair Housing Act by any of the defendants in this action, their agents, employees, representatives, or successors shall be deemed subsequent violations for the purposes of determining the appropriate civil penalty that may be levied by a court or an administrative law judge pursuant to Section 814(d)(1)(C)(ii) of the Fair Housing Act. 42 U.S.C. § 3614(d)(1)(C)(ii).

8. RECORD-KEEPING REQUIREMENTS

During the term of this Consent Order, the City of Waukegan shall:

1. Maintain a log of all inspections of residential property conducted by the building department's code enforcement inspectors. The log shall include the date of the inspection, address of the property, name of the owner, name of the occupant or tenant contacted during the inspection, officials involved in the inspection, the reason for the inspection, whether any code violations were discovered during the inspection, and the circumstances that led to the inspection, including the identity of any private citizen, if voluntarily provided after being requested by the City, or city official who requested the inspection.

2. Retain all building department inspection reports, irrespective of whether violations were found.

3. Retain all documentation related to the occupancy of residential dwellings within the City including, but not limited to, notices of violations of city or state codes; internal records of communications between building department employees and city officials; correspondence to landlords, residents, owners or managers of residential property; zoning letters; and all records, including tape recordings, of city council meetings in which topics related to the administration of the Housing Code were discussed. This documentation shall also include interoffice and intra-departmental memoranda, inspector notes, summary reports, records reflecting the institution and payment of fines, legal documents (e.g. summonses and court notices), electronic and computer records, videotapes, audiotapes, and photographs.

4. Maintain a written record of all complaints related to the City's inspections of residential property and the manner in which the complaints were addressed or resolved. The City shall provide notification to all persons who make oral complaints of discrimination, by telephone or otherwise, that such complaints should be submitted to the City in writing for further action or that persons with a complaint may come to the Fair Housing Counselor described in Part III to lodge a written complaint or to obtain assistance in doing so.

5. Maintain all records, including but not limited to complaints of alleged housing discrimination, addressed to and by the Fair Housing Counselor described in Part III.

9. REPORTING TO THE UNITED STATES

1. Within sixty (60) days of the date of entry of the Order, the City of Waukegan shall submit to counsel for the United States a report that consists of the following:
   1. The statements and certifications signed by all officials, employees, or agents pursuant to Part IV;
   2. The address and telephone number of the Fair Housing Counselor described in Part III; and
   3. Written verification that the City has mailed the notices described in Part VI.D.

2. Within one hundred (100) days after the date of entry of this Order, the City shall submit to counsel for the United States the materials specified in Part VI.B.

3. The City shall provide to counsel for the United States representative copies of any written materials, such as advertisements, posters, and notices, which are to be used for purposes of compliance, no later than ten (10) days prior to implementation.

4. The City of Waukegan shall notify counsel for the United States in writing within thirty (30) days of the receipt by the City of any written complaint alleging housing discrimination by the City of Waukegan. This notification shall include full details of the complaint and any action taken by the City in response to the complaint, and shall be accompanied by copies of all pertinent documents.

5. Six (6) months after the date of entry of this Order, and every six(6) months thereafter for three (3) years from the date of this Order, the City shall submit to counsel for the United States a written report evidencing its continuing compliance with this Order. This report shall consist of the following information:
   1. Any statements or certifications signed pursuant to Part IV of this Order during the preceding six-month period;
   2. Notice of the resignation, termination, or hiring of any employees or officials whose responsibilities relate to the enforcement or implementation of zoning, housing, occupancy, or land use ordinances and regulations;
   3. Copies of all written complaints of housing discrimination received by the City of Waukegan that have not previously been provided to the United States pursuant to Paragraph D; and
   4. A report on all advertising conducted pursuant to this Order, including the media names, types, frequencies of advertisements, and representative copies of all advertising.

6. Upon reasonable notice to counsel for the City of Waukegan, representatives of the United States shall be permitted to inspect and copy all pertinent records of the City of Waukegan at any and all reasonable times; provided, however, that the United States shall endeavor to minimize any inconvenience to the City from the inspection of such records.

10. DURATION OF CONSENT ORDER

1. The duration of the defendants' obligations under Parts II.E, and III-XI of this Order shall be for a period of three (3) years beginning from the date of entry of this Order.

2. At anytime prior to sixty (60) days after receipt by the United States of the City of Waukegan's last report pursuant to Part IX the United States may file a motion with the Court for an extension of this Order. If such a motion is filed, the Court shall hold a hearing and the burden shall be on the United States to demonstrate why this Order should be extended. If the United States fails to meet its burden, or if no motion is timely filed (except for good cause shown), this Order shall terminate forthwith and this case shall be dismissed.

3. This Order may be extended by agreement of the parties.

11. REMEDIES FOR NON-PERFORMANCE

1. 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 an act or deeming an act to have been performed and an award of any damages that may have been occasioned by a defendant's violation or failure to perform. In addition, any violations of Part II.A - II.E of this Order shall be considered "subsequent violations" for the purposes of Section 814(d)(1)(C)(ii) of the Fair Housing Act. 42 U.S.C. 3614(d)(1)(C)(ii).

2. 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. The Court shall retain jurisdiction to enforce the terms of this Order upon a motion to reopen the case for such purpose.

12. TIME FOR PERFORMANCE

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

13. COSTS AND ATTORNEY'S FEES

Each party shall bear its own costs and attorney's fees to date in this action.

ORDERED this __[20^th]__ day ___[May]___, 1997.

HON. JOHN A. NORDBERG
UNITED STATE DISTRICT JUDGE

The unersigned apply for and consent to the entry of this Order:

1. All notices, reports, 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, United States Department of Justice, P.O. Box 65998, Washington, D.C. 20035-5998, Re: DJ 175-23-601. > >