Community Empowerment Council Inc et al v. Pine Bluff Arkansas, City of et al

Filing 28

ORDER granting 18 Motion for Summary Judgment and dismissing the complaint with prejudice. Signed by Judge D. P. Marshall Jr. on 7/2/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

PINE BLUFF DIVISION

COMMUNITY EMPOWERMENT
COUNCIL, INC.; TONY J. ANDERSON;
and CHARLES ANDERSON

v.

PLAINTIFFS

No.5:11-cv-49-DPM

CITY OF PINE BLUFF, ARKANSAS;

CARL A. REDUS, JR., Individually

and Oficcially; and FRED TISDALE,

Individually and Officially

DEFENDANTS

ORDER
Tony and Charles Anderson are the organizers behind Community
Empowerment Council, Inc. In 2010, the Council sought to use an old house
on Cherry Street in Pine Bluff as a twenty-four hour emergency shelter for
foster children. These kinds of havens are much needed. The City approved
the proposal so long as the Council complied with all other city and state
regulations.

After an inspection, however, Fire Marshal Fred Tisdale

informed the Council that to comply with the Fire Code, the proposed facility
would have to have a sprinkler system. Rather than installing the sprinklers,
the Council and the Andersons filed this lawsuit, alleging an equal protection
violation under § 1981 & § 1983. They allege that other organizations were

not required to have sprinklers and that the City Defendants therefore
selectively enforced the Fire Code against the Council because its organizers,
the Andersons, are African Americans.
The Equal Protection Clause "prohibits government officials from
selectively applying the law in a discriminatory way." Central Airlines, Inc. v.
United States, 138 F.3d 333,335 (8th Cir. 1998). To establish that the allegedly

unequal administration of the Fire Code violates the Clause, the Councif must
first show that the City did, in fact, treat it differently than similarly situated
organizations. McDonald v. City ofSaint Paul, 679 F.3d 698, 705 (8th Cir. 2012).
If it clears that hurdle, then it must also show intentional discrimination in the

selective application. Ibid.; Snowden v. Hughes, 321 U.S. 1,8 (1944).
The Council's lawsuit fails on both points. First, it has not shown that
it was treated differently than similarly situated organizations.

It has

proposed two comparators: a CASA shelter and the Aikman apartment
building. But, among other differences, neither CASA nor Aikman were
subject to the 2006 International Fire Prevention Code - the source of the
sprinkler requirement.

The State did not adopt the 2006 Code until

'The Court uses this shorthand to include the Andersons too.
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2008 - after both CASA and Aikman started their construction. The Council
therefore is not similarly situated to either of those organizations,
"particularly with respect to the same time period." Anderson v. Douglas
County, 4 F.3d 574, 577 (8th Cir. 1993). Because the Council has shown no
similarly situated comparator in the relevant time period, its equal protection
claim fails as a matter of law.
The Council tries to avoid this conclusion by pointing out that the City
never adopted the Fire Code. Even if that is true, however, the Attorney
General has made it clear that the Code promulgated by the State Fire
Marshal "has the force of state law and is enforceable regardless of whether
a local government has adopted it by ordinance." Op. Att'y Gen. 2005-075.
And the City Fire Marshal is bound to fulfill the fire-prevention duties laid
down by state law. ARK. CODE ANN. § 12-13-108. The City Defendants'
enforcement of the sprinkler requirement was therefore appropriate.
If the Council had established that it was treated differently than

similarly situated organizations, its equal protection claim would still fail
because the Council has made no showing of purposeful discrimination.
"[E]ven if a neutral law has a disproportionately adverse effect upon a racial

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minority, it is unconstitutional under the Equal Protection Clause only if that
impact can be traced to a discriminatory purpose."

Personnel Adm'r of

Massachusetts v. Feeney, 442 U.S. 256, 272 (1979). There is no evidence, other

than the Andersons' subjective beliefs, that the Council was treated differently
because of their race. Nothing in the decision itself or the decision-making
process suggests thattheCity Defendants intentionally discriminated against
the Council because of race.

Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252, 267 (1977).

And without that

evidence, the Council's § 1981 and § 1983 claims fail as a matter of law.

* * *
The Council and the Andersons have embarked on a worthy venture to
help foster children. But the City's sprinkler mandate did not violate the
Constitution. Motion for summary judgment, Document No. 18, granted. The
complaint is dismissed with prejudice.
So Ordered.
{/

D.P. Marshall Jr.

United States District Judge

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