              Case: 19-11613     Date Filed: 03/26/2020   Page: 1 of 11



                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-11613
                             Non-Argument Calendar
                           ________________________

                        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.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                          ________________________

                                  (March 26, 2020)

Before WILSON, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

PER CURIAM:
              Case: 19-11613     Date Filed: 03/26/2020    Page: 2 of 11



      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


                                           2
             Case: 19-11613     Date Filed: 03/26/2020    Page: 3 of 11



   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.



                                          3
              Case: 19-11613    Date Filed: 03/26/2020   Page: 4 of 11



      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


                                          4
               Case: 19-11613       Date Filed: 03/26/2020      Page: 5 of 11



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.


                                              5
               Case: 19-11613    Date Filed: 03/26/2020   Page: 6 of 11



      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
                                          6
                Case: 19-11613       Date Filed: 03/26/2020       Page: 7 of 11



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.


                                                7
              Case: 19-11613     Date Filed: 03/26/2020    Page: 8 of 11



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.




                                          8
              Case: 19-11613     Date Filed: 03/26/2020   Page: 9 of 11



      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


                                          9
             Case: 19-11613     Date Filed: 03/26/2020    Page: 10 of 11



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


                                           10
             Case: 19-11613      Date Filed: 03/26/2020   Page: 11 of 11



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.




                                          11
