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Georgia county defends order to shut down Ethiopian restaurant

A hearing at the 11th Circuit centered on whether a company can acquire a racial identity and file claims of discrimination.

ATLANTA (CN) — A federal appeals court heard arguments Wednesday over whether a company can sue for racial discrimination, in the case of an Ethiopian restaurant in Georgia that claims county officials had discriminatory motives behind shutting down the business.

In 2017, Sheba Ethiopian Restaurant filed a lawsuit against DeKalb County and various county officials , claiming they violated the company's constitutional rights to equal protection by conspiring to revoke its business license by pursuing a series of several inspections to find code violations and issue citations.

"Meanwhile, restaurants in the same district which catered to predominately white clientele, and which violated the same code provisions, have been knowingly permitted to operate unencumbered," Sheba's attorney Cary Wiggins wrote in his brief to the 11th Circuit.

Wiggins referred to the county's alleged scheme as a "death by a thousand cuts," arguing that Sheba was unfairly targeted for having a predominant East African clientele in the district with the highest percentage of white residents.

The restaurant claims that the racial discrimination was spearheaded by Martha Gross, a citizen and active community member living near an intersection that consisted of multiple late-night Ethiopian and Eritrean restaurants.

Gross referred to the establishments as "noxious uses" and actively expressed wanting to get rid of them or limit their hours on social media.

Sheba claims that county commissioners were copied in an email from Gross celebrating shutting it down, as well as six other similar late-night establishments.

The county, however, argues it had justifiable reasons for conducting the inspections and should therefore be protected by qualified immunity against Sheba's discrimination claims.

"The county officials’ concerns were objectively valid. Sheba began advertising and operating as a nightclub, and neighbors began complaining about it. Code enforcement officers and fire inspectors found that Sheba renovated its restaurant and began operating a nightclub without obtaining the proper permits," the county's attorney Bennett Bryan wrote in his brief.

He added, "Inspectors also found Sheba serving alcohol after hours, exceeding the maximum occupancy limit by hundreds of people time and again, using fireworks inside, blocking rear exits, etc., and Sheba pleaded guilty to most of those charges."

While the restaurant did not fight against the citations it was issued, it argued that the repeated tickets were for "petty code infractions" such as minor repairs without a building permit and using sparklers in champagne bottles.

On remand from the 11th Circuit, the district court held last year that Sheba stated a valid civil rights claim because it acquired a minority racial identity through its owner, Solomon Abebe, who is Black and from Ethiopia.

U.S. District Judge William Ray, a Donald Trump appointee, further found that the alleged coordinated efforts by Gross and DeKalb County Fire Marshal Joseph Cox in investigating Sheba and other Ethiopian businesses were "at least in part, motivated by discriminatory intent."

Ray denied the county's request for qualified immunity, ruling that he was unpersuaded by the argument that any reasonable officer would believe that heightened enforcement efforts on Ethiopian restaurants were not race-based.

Back at the 11th Circuit on Wednesday, the county argued that Sheba shouldn't have been allowed to bring a discrimination claim to begin with, based on precedent from the U.S. Supreme Court that says corporations have no racial identity.

But the three-judge panel of the Atlanta-based appeals court noted during oral arguments that this interpretation has not been fully established, as other circuit courts have held that corporations can bring discrimination claims under the section of the Civil Rights Act that guarantees the right  “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings."

Wiggins was questioned by U.S. Circuit Judge Andrew Brasher, a Trump appointee, on how Sheba has a race. U.S. Circuit Judge Robert Luck, another Trump appointee, asked the attorney if the company does have a race, what would happen if the corporation was then sold to someone of a different race, to which Wiggins could not answer.

"Isn't that a problem that we can't identify that? If it can change, then how can we say it's like an individual that has an immutable race?" Luck asked. "AT&T can't possibly have a race because there's millions of shareholders."

U.S. Circuit Judge Frank Hull, a Bill Clinton appointee, also asked Wiggins about the county's alleged discriminatory intentions in light of the fact that Sheba admitted to some violations.

The judges did not signal when they intend to issue their ruling.

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