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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11613
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-00243-SCJ
HIS HOUSE RECOVERY RESIDENCE, INC.,
a Georgia not-for-profit corporation,
KEVIN WEIKUM,
Plaintiffs-Appellants,
versus
COBB COUNTY, GEORGIA,
a political subdivision of the State of Georgia,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 26, 2020)
Before WILSON, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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This is a housing discrimination case brought under both the Fair Housing
Act (FHA) and the Americans with Disabilities Act (ADA). It was brought by His
House Recovery Residence, Inc. and its founder, Kevin Weikum (collectively, His
House), against Cobb County, Georgia (the County). Before the district court, the
parties filed cross-motions for summary judgment. The district court denied His
House’s motion for summary judgement and denied in part and granted in part
summary judgment in favor of the County. On appeal, His House alleges that the
district court erred in two ways. First, His House asserts that the district court
improperly concluded that it did not sufficiently establish a disparate treatment
claim because it failed to provide evidence of non-recovering people being treated
differently. Second, His House argues that the district court erred when it found
that the County ordinance at issue is facially neutral. After a thorough review of
the record and the parties’ briefs, we affirm.
BACKGROUND
We recount only the essential facts. His House operates sober-living
residences in which clients voluntarily choose to participate in a substance-free,
communal-living environment. At least one of these residences is in an area of the
County that is zoned for single-family, residential use—a classification that
includes “group home” as a permitted use.
Under the County’s Code of Ordinances, a group home is
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a dwelling unit . . . shared by four or fewer persons, excluding resident staff,
who live together as a single housekeeping unit and in a long term, family-
like environment in which staff persons provide care, education and
participation in community activities, under a structured and scheduled plan
that must be provided to the county, for the residents with the primary goal
of enabling the residents to live as independently as possible in order to reach
their maximum potential under the direction and guidance of a designated
managing caregiver, designated as such by the affiliate organization, who
must be a resident of the group home and available by telephone on a 24-
hour basis in case of complaints. A copy of the home rules shall be provided
to the county as well as (if applicable) evidence of active enforcement under
the Georgia Association of Recovery Residence [(GARR)] standards. The
schedule of activities may be verified via periodic inspection by community
development staff . . . . A group home shall not allow use of the dwelling as
a home for individuals on parole, probation, or convicted and released from
incarceration . . . . A group home may include a home for the disabled.
COBB COUNTY, GA., CODE OF ORDINANCES ch. 134, art. 1, § 134-1 (2019) (the
Ordinance). The current definition of “group home” was enacted in 2010, after a
collaborative effort with GARR. Before 2010, recovery residences were
considered halfway houses and could not qualify as group homes. The Ordinance
now allows recovery residences to qualify as group homes where the relevant
conditions of the County’s zoning ordinance are met.
In the County, reasonable accommodations may be sought through the
Temporary Land Use Permit (TLUP) process. TLUPs allow for the use of a
property that is otherwise prohibited under the County’s zoning ordinance. For
example, for His House to house more residents than the Ordinance allows, it
would need to seek a TLUP.
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In 2013, His House began housing residents at 1793 Miller Drive (Miller
Drive). In December 2014, His House was cited by the County for illegally
occupying a single-family dwelling because it exceeded the number of allowed
residents. In January of 2015, the County issued a criminal citation to Weikum for
violation of the Ordinance. His House hired counsel and, in April 2015, applied
for a TLUP that, in part, requested that His House be allowed to exceed the number
of allowed residents.
County staff recommended denial of His House’s TLUP noting, in part, that
“[h]aving a multitude of people living on a property starts to erode the low
intensity character of a residential neighborhood and could have a negative effect
on the property values.” In early June of 2015, the County Planning Commission
held a hearing on His House’s TLUP application. Concerns expressed by Planning
Commission members included His House’s lack of oversight and the number of
people that would be residing on the property. The Planning Commission
recommended denial of His House’s TLUP application, but the ultimate decision
lay with the County’s Board of Commissioners (the Board).
Following the Planning Commission hearing, but before His House’s
hearing before the Board, the County’s Code Enforcement Manager, Jerry
Lanham, sent County Commissioner JoAnn Birrell an email. In that e-mail,
Lanham stated that he wanted to make Birrell “aware of some of [his] concerns
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about” His House’s TLUP application. After Lanham documented His House’s
history of violations at another location on Latimer Lane, he expressed concern
that His House “is starting off the same way [it] did at 19 Latimer Lane” and that
“based on [its] past performance this will become an issue for the neighborhoods
surrounding this property.” 1
About two weeks after the Planning Commission hearing, the Board
considered His House’s TLUP application. The application was met with
opposition from citizens whose concerns included Miller Drive’s proximity to a
school and playgrounds and the effect of a group home on property values. The
neighborhood association that encompassed Miller Drive introduced a petition that
contained 60 signatures and complained of a recent increase in vandalism and drug
paraphernalia in the neighborhood.
Birrell questioned His House during the meeting, asking about its prior
residences as well as other current residences. Before she moved to deny the
application, she said
I’ve heard the concerns of the neighbors today . . . . I do have concerns
with this being in a residential area and the close proximity of the school
and there is a history here with a previous location, and I would just
like to recommend to the neighbors: if anyone, no matter where you
are, approaches your child or anything suspicious in your
neighborhood—you need to call 911. So, sorry, but I just had to say
1
His House had previously operated a recovery residence on Latimer Lane, where it was also
cited for allowing an excess number of adults to reside at the residence.
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that. And so with that, I would like to make a motion that would deny
this application. And should this motion to deny pass, I would like to
direct code enforcement to be on the property within the next thirty days
to enforce compliance.
Another commissioner offered an amendment to the motion to include the
Planning Commission’s and County staff’s recommendations to deny the
application.
The Board denied the application and gave His House 30 days to reduce the
number of residents at Miller Drive. After the denial, Birrell continued to follow
up with County officials to see if notice had been provided to Miller Drive and if
Code Enforcement would be going to Miller Drive. After His House reduced the
number of residents, Code Enforcement continued to monitor and cite violations
for unrelated issues at the property.
DISCUSSION
We review a district court’s grant of summary judgment de novo, viewing
“all evidence and factual inferences reasonably drawn from the evidence in the
light most favorable to the non-moving party.” Burton v. Tampa Hous. Auth.,
271
F.3d 1274, 1276–77 (11th Cir. 2001). Summary judgment is proper when “the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986). This standard means “that
the mere existence of some alleged factual dispute between the parties will not
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defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc.,
477 U.S. 242, 247–48 (1986).
I.
First, His House argues that the district court erred when it granted summary
judgment on its disparate treatment claim.2 We have said that a disparate treatment
claim “requires a plaintiff to show that he has actually been treated differently than
similarly situated non-handicapped people.” 3 Schwarz v. City of Treasure Island,
544 F.3d 1201, 1216–17 (11th Cir. 2008) (affirming summary judgment on an
intentional discrimination claim where the owner of halfway houses failed to
establish disparate treatment because there was no evidence that the city failed to
enforce the statute against non-recovering substance abusers); see also Hunt v.
Aimco Props., L.P.,
814 F.3d 1213, 1224–25 (11th Cir. 2016) (determining that a
tenant plausibly alleged disability discrimination based on disparate treatment
2
Based on His House’s allegations, the district court treated their intentional discrimination
claim as one for disparate treatment. We do the same.
3
His House argues that the district court erred by failing to apply the factors considered in
Village of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 266–68
(1977). We are not persuaded by this argument because Arlington Heights does not limit our
inquiry to only the factors listed in that case, nor does it mandate a mechanical approach in
discrimination claims. The considerations the Supreme Court offered were not intended to be
exhaustive.
Id. at 268. Instead, the Court listed merely some of the “subjects of proper inquiry
in determining whether racially discriminatory intent exist[s].”
Id. In any event, even if we had
probed the County’s actions using the Arlington Heights factors, we would still affirm for the
reasons we state below.
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because the tenant alleged various treatments, conditions, and restrictions placed
on her disabled child, but not other residents). Disparate treatment may be proved
using either direct or circumstantial evidence. See Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp.,
429 U.S. 252, 266 (1977). When a plaintiff establishes
discrimination through direct evidence, our inquiry ends there. See Massaro v.
Mainlands Section 1 & 2 Civic Ass’n, Inc.,
3 F.3d 1472, 1476 n.6 (11th Cir. 1993).
We analyze circumstantial evidence using the burden-shifting framework provided
in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), which requires a
plaintiff to first make a prima facie case of discrimination. See
Massaro, 3 F.3d at
1476 n.6.
In its brief, His House asserts that it has presented both direct and
circumstantial evidence of disparate treatment sufficient to survive summary
judgment. We do not believe that His House has proffered direct evidence of
disparate treatment as none of the instances and allegations described in its brief
can fairly be described as “evidence, which if believed, proves existence of fact in
issue without inference or presumption.” Rollins v. TechSouth, Inc.,
833 F.2d
1525, 1529 n.6 (11th Cir. 1987) (alternation accepted). Instead, His House’s
allegations are more appropriately described as suggesting discrimination and, by
definition, are circumstantial evidence. See
id.
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His House specifically argues that the legislative history of the Ordinance,
the County’s prior actions at Latimer Lane, the County’s alleged departure from its
normal code enforcement efforts, animus from neighbors, and Commissioner
Birrell’s comments, are all evidence of discrimination. We disagree because His
House fails to provide sufficient evidence that the County treated them differently
from similarly situated non-disabled citizens. The fact that the Ordinance was
amended as a result of a complaint by an advocacy group does not, without more,
prove that His House has been treated differently than similarly situated non-
recovering people or that there was discriminatory intent behind the amendment.
That the County previously cited the Latimer Lane residence is unpersuasive
evidence for the same reason—His House does not offer evidence that the County
unevenly enforced the Ordinance. The record is also bereft of evidence that the
County departed from its normal code enforcement procedures when it cited His
House’s residence at Miller Drive. While the record is clear that some neighbors
were opposed to His House’s presence on Miller Drive, “evidence that neighbors
and city officials are biased against recovering substance abusers is irrelevant
absent some indication that the recoverers were treated differently than non-
recoverers.” See
Schwarz, 544 F.3d at 1216. There is no such evidence here. And
regardless, His House still fails to provide evidence that the “members of the
[Board] were aware of the motivations of the private citizens” or that, despite these
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motivations, the Board was not justified in denying the TLUP. See
Hallmark, 466
F.3d at 1284. As for Commissioner Birrell’s comments, while we understand why
His House might view them as unfair and unwarranted, those comments do not
clearly evidence discriminatory intent. Therefore, the district court did not err in
granting summary judgment on the disparate treatment claim.
II.
His House further argues that the Ordinance is facially discriminatory.
According to His House, the Ordinance discriminates because it (1) limits group
homes to four or fewer residents; (2) demands that group homes have an in-
resident caregiver who is available on a 24-hour basis; (3) requires “active
enforcement of the [GARR] rules”; (4) prescribes “periodic inspections by County
enforcement staff; and (5) prohibits persons on parole or probation who are also in
recovery from residing in a group home. The effect of these criteria, His House
suggests, is to single out disabled individuals and “limit[] recovering individuals’
ability to obtain and maintain housing.”
We disagree. For this claim to have survived summary judgment, the
Ordinance, on its face, would need to discriminate against people with disabilities.
But the Ordinance, does not, on its face, treat recovering individuals any
differently than non-recovering individuals. None of the Ordinance’s provisions
distinguish based on the presence of disability. The limitation on the number of
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residents applies to all group homes, as do the requirement that group homes have
a resident caregiver, the provision allowing review of the schedule of activities by
periodic inspections, and the prohibition against persons on parole or on probation.
And we reject His House’s remaining contention that the Ordinance requires
“active enforcement” of the GARR rules by recovery group homes, because the
Ordinance only requires such enforcement “if applicable.” Therefore, the
Ordinance is facially neutral.
***
In sum, the district court did not err because His House has not presented
either direct or circumstantial evidence of disparate treatment and the County’s
ordinance is facially neutral. The judgement of the district court is therefore
AFFIRMED.
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