Posted by: Patricia Salkin | November 11, 2009

11th Circuit Court of Appeals Finds Insufficient Evidence to Support Discriminatory Enforcement Claims

Bonasera, a Hispanic woman living in a predominantly white neighborhood, installed a second kitchen in her home and in 1999 began renting rooms to boarders.  In 2006, following the complaints of a neighbor, the City cited her for violating City ordinances restricting the use of her property to “one family residences and related uses.”  Rather than appealing the conviction in state court, Bonasera sued the City and several City employees in federal court alleging violations of the Fair Housing Act (FHA) and the Equal Protection Clause.  She alleged that her conviction for violating the zoning ordinance was motivated by racial animus and that the city selectively enforced its zoning ordinances in a way that created a disparate impact on Hispanics.  The district court found that Bonasera did not present any direct evidence of discriminatory intent and presented insufficient circumstantial evidence of discriminatory intent to create a genuine issue of material fact as well as insufficient evidence of disparate impact to support her claims under the FHA and the Equal Protection Clause.  Bonasera appealed.

 The Eleventh Circuit Court of Appeals explained that for Bonasera to prevail under her FHA claim, she must prove 1) intentional discrimination, 2) disparate impact or 3) a refusal to make a reasonable accommodation.  To prove intentional discrimination “a plaintiff has the burden of showing that the defendants actually intended or were improperly motivated in their decision to discriminate against persons protected by the FHA.”  Bonasera contends that she produced evidence that racism motivated her neighbor to file a complaint against her and that the City knowingly implemented the racist attitudes of her neighbor by acting upon the complaint.  Specifically, Bonasera pointed to the portion of the deposition where Marshal Smith testified that he heard the neighbor  express his concerns at a meeting “about the neighborhood going down” and that the neighbor  reported “numerous male Mexicans there, gang types, looked like gang types, and said we are zoned R-100.”  Bonasera also pointed to several of Marshal Smith’s statements, which she asserts are evidence of his animosity toward Hispanics.

Bonasera also challenged the district court’s conclusion that because the City rarely issued citations for violations of this specific zoning ordinance, Bonasera had not shown a disparate impact on Hispanics of the City’s zoning enforcement.  Footnote 2 cites that “the evidence indicates that the City has issued a total of seven citations, excluding Bonasera, for violations of the R-100 zoning district, all of which were issued against Hispanic persons.”  However, the court failed to find a disparate impact because Bonasera provided “no evidence that the City was aware of any violations of zoning ordinance by white homeowners and chose to ignore them.”  The court explained that a selective enforcement claim based on race “must show that similarly situated individuals of a different race were not prosecuted.”

In upholding the decision of the district court, the Circuit Court concluded that “Bonasera presented no direct or circumstantial evidence of discriminatory intent or of a disparate impact to support her claims under the FHA” nor her claims under the Equal Protection Clause.

Bonasera v. City of Norcross, 2009 WL 2569097 (C.A.11 (Ga.) 8/21/2009)

The opinion can be accessed at: http://www.ca11.uscourts.gov/unpub/ops/200911514.pdf


Responses

  1. I am writing in reaction to the Court of Appeals of the 11th Circuit’s ruling in the matter of Bonasera v. City of Norcross. I should note that my sister and I briefly lived in Norcross, Georgia in 1998, and I am very familiar with this community and some of the demographic trends involving an influx of Hispanic Americans moving there. I agree with the Court’s finding that the plaintiff should have presented evidence that in similar violations of the zoning ordinance involving white (or perhaps even black or Asian) homeowners that the City failed to enforce the ordinance to prove her claim of discriminatory enforcement. I believe that it would have also been more helpful to the plaintiff’s claim if she applied for a special use permit in order to be able to rent out the rooms in her home, and if she was denied same (and after exhausting her right to appeal) she could have compared the number of special use permits granted and denied by the City in these type of situations to more fully discern if race played a role in the decision.


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