United States of America v. Dawn Properties, Inc. et al

Filing 595

Stipulated ORDER granting 594 Joint Motion For Entry of Stipulated Order. See Order for details. Signed by District Judge Louis Guirola, Jr. on 1/17/18. (RLW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

)
)
)
v.
)
)
DAWN PROPERTIES, INC.,
)
SOUTHERN CROSS CONSTRUCTION
)
COMPANY, INC.,
)
RIDGELAND CONSTRUCTION ONE, LLC,
)
THE BEACH CLUB, LLC,
)
THE BELMONT OF LAMAR, LLC,
)
GRAND BISCAYNE APTS., LLC,
)
SEAINN, LLC, and
)
IKE W. THRASH,
)
Defendants,
)
and
)
)
SUMMER MISS, LLC,
)
14510 LEMOYNE BOULEVARD, LLC,
)
LEXINGTON MILL MISSISSIPPI OWNER, LLC, )
INN BY THE SEA HOME OWNERS
)
ASSOCIATION, INC., and
)
ALCURT BILOXI II LLC,
)
Rule 19 Defendants,
)
and
)
)
14510 LEMOYNE BOULEVARD, LLC,
)
Cross-claimant,
)
)
v.
)
)
GRAND BISCAYNE APTS., LLC and
)
IKE W. THRASH,
)
Cross-defendant and
)
Rule 19/20 Defendant to
)
Crossclaim.
)
)

Case No. 1:14-cv-224-LG-JCG

STIPULATED ORDER RESOLVING THE DEFENDANTS’ AND IKE W. THRASH’S
MOTION FOR ADDITIONAL TIME WITHIN WHICH TO COMPLY WITH THE
TERMS AND CONDITIONS OF THE CONSENT ORDER PURSUANT TO F.R.C.P. 60,
ECF NOS. 586 AND 587_

Upon consideration of the United States’ and Defendants’ Joint Motion to Enter a
Stipulated Order Resolving the Defendants’ and Ike W. Thrash’s Motion for Additional Time
Within Which to Comply With the Terms and Conditions of the Consent Order Pursuant to
F.R.C.P. 60, ECF Nos. 586 and 587, the Parties’ Joint Motion is hereby GRANTED.
It is hereby ORDERED:
Defendants’ and Ike W. Thrash’s Motion for Additional Time Within Which to Comply
With the Terms and Conditions of the Consent Order Pursuant to F.R.C.P. 60, ECF Nos. 586 and
587, is hereby dismissed without prejudice.
It is FURTHER ORDERED that the Consent Order between the United States and
Defendants, ECF No. 572, is amended as follows:
1)

Paragraphs 32 and 36 are amended to require the Defendants to complete the retrofits

required by the Consent Order, and conduct the initial inspections of the retrofits required by paragraph
43, on the following schedule:
One Property (Inn by the Sea): By January 22, 2018
One Property (Beach Club):

By December 31, 2018

Two Properties:

By December 30, 2019

Two Properties:

By December 30, 2020

The Lexington property shall be one of the properties completed and inspected by December 30,
2019.
2)

Defendants shall provide monthly construction status reports to the United States for each

property required to be retrofitted by the Consent Order. The monthly construction status reports shall
state: (a) how many units have been started, (b) how many units have been completed, (c) the status of
any exterior work, and (d) an estimated date of completion. The monthly construction status reports shall
be submitted to the United States on the first business day of each month, starting in February, 2018 and

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shall be submitted by email, facsimile, or overnight delivery.1 Defendants shall submit monthly
construction status reports until the neutral inspector certifies that all retrofits have been completed. See
Consent Order ¶¶ 43-44. Defendants shall continue to submit the report required by paragraph 55 to the
United States every six months.
3)

Defendants shall install grab bars using Wing-Its at two of each unit type at the Beach

Club property for inspection by the United States, as part of Defendants’ planned retrofitting of sample
units at that property.
a. If the United States is satisfied that the grab bars as installed in the sample units
provide sufficient stability, Defendants will not be required to install the blocking
required by the Consent Order’s retrofit appendix for the Beach Club. See Consent
Order App. B-1. If the United States is satisfied that the later installation of grab bars
using Wing-Its provide sufficient stability at the Beach Club, the Defendants shall
inform all tenants and any prospective tenant that grab bars will be installed at no cost
to them upon request.
b. If the United States is not satisfied that the installation of grab bars using Wing-Its
provides sufficient stability, the Defendants shall install the blocking required by the
Consent Order. See Consent Order App. B-1.
c. If the United States is satisfied that the installation of grab bars using Wing-Its
provide sufficient stability at the Beach Club, the United States will consider agreeing
to stipulate for the Court’s approval an amendment of the Consent Order to allow the
later installation of grab bars using Wing-Its at Grand Biscayne, Belmont (Biloxi),
Belmont (Hattiesburg), and Lexington rather than requiring Defendants to install the
blocking required by the Consent Order. See Consent Order Apps. B-2-B-5. This

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The monthly construction status reports shall be submitted by email to: [e-mail].,
[e-mail] and [e-mail]; or by facsimile to: 202-514-1116; or by overnight delivery
to: U.S. Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section, 1800 G Street, NW,
Suite 7002, Washington, DC 20006.

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potential amendment to the Consent Order is subject to the Defendants’ agreement to
provide 30 grab bar sets to each of the current owners for installation. This potential
amendment to the Consent Order is also subject to the current owners’ agreement to
inform all tenants and any prospective tenant that grab bars will be installed at no cost
to them upon request.
4)

The United States conditionally agrees that the firm of Machado Patano, to which it has

objected, shall serve as the neutral inspector required by paragraphs 42-44 of the Consent Order subject to
the United States’ review of the firm’s work as the neutral inspector. The United States reserves its right
to object to Machado Patano continuing to serve in that role, and if necessary, to raise this matter pursuant
to the dispute resolution provision of the Consent Order. See Consent Order ¶ 59.
5)

If the Defendants provide any materials to the neutral inspector for review, including, but

not limited to, architectural or engineering drawings, the Defendants shall provide the same material to the
United States at the same time.

It is FURTHER ORDERED that any time the neutral inspector inspects any retrofits at
any property, including retrofits of sample units, the Defendants shall give the United States at
least 21-days advance notice and the opportunity to attend the inspection as required by the
Consent Order. See Consent Order ¶¶ 43-44.
It is FURTHER ORDERED that as set forth in paragraph 57, the Consent Order shall
remain in effect for the later of four years from the date of entry or until six months after the
neutral inspector has certified that all of the retrofits required by Appendices A and B have been
completed.
It is FURTHER ORDERED that the remaining terms of the Consent Order between the
United States and the Dawn Defendants remain unchanged and are in full force and effect.

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SO ORDERED AND ADJUDGED this the 17th day of January 2018.
s/

Louis Guirola, Jr.

Louis Guirola, Jr.
U.S. District Judge

The undersigned apply for and consent to the entry of this Stipulated Order:
FOR THE UNITED STATES:
D. Michael Hurst, Jr.
United States Attorney
Southern District of Mississippi
501 E. Court Street, Suite 4.430
Jackson, MS 39201
601-973-2842

John M. Gore
Acting Assistant Attorney General
Civil Rights Division

/s/ Julie J. Allen______________
SAMEENA SHINA MAJEED
Chief
MICHAEL S. MAURER
Deputy Chief
JULIE J. ALLEN
KINARA A. FLAGG
AURORA R. BRYANT
Trial Attorneys
United States Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section
950 Pennsylvania Avenue, N.W.
Northwestern Building
Washington, D.C. 20530
202-307-6275
202-514-1116 (fax)
[e-mail]
[e-mail]
[e-mail]

FOR THE DEFENDANTS:
/s/ Nicholas Van Wiser____________
Nicholas Van Wiser (MSB No. 7339)
Russell Manning (MSB No. 102789)
BYRD & WISER
P.O. Box 1939
Biloxi, Mississippi 39533
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T: 228.432.8123
F: 228.432.7029
[e-mail]
[e-mail]

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