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The 2d U.S. Circuit Court of Appeals has ruled that a reasonable jury could conclude that a New York town board acted out of “racial animus” when it amended a permit to prohibit teen dances at a club patronized by black youths from “the city.” Cine SK8 v. Town of Henrietta, No. 06-1718-cv. Ross Catalano, his wife, and his partner, James Drew, were the owners of Fun Quest. In September 2001, they entered into a 10-year lease on an existing building in Henrietta, N.Y., a suburb of the nearby city of Rochester, N.Y. The Henrietta town board approved a special-use permit allowing Fun Quest to convert the property into a family recreation center, including a teen dance club, a roller skating rink, a snack bar and a gymnastics room. Fun Quest obtained a certificate of occupancy that set the occupancy limit for 1,520 people. It opened for business in January 2002. On March 9, 2002, patrons from a nearby theater that had lost power moved to Fun Quest. Due to bad weather, many crowded into its foyer. Although there were fewer than 1,520 people inside the building, 2,000 to 3,000 people gathered outside. Town Fire Marshall Chris Roth, a defendant in the action, eventually ordered evacuation of the business. Town Supervisor James Breese, another defendant in the action, sent a letter to Catalano asking that Fun Quest immediately stop holding teen dances. Breese said that dances had caused problems in the area, especially when they are “open-ended as to who can attend and who cannot.” The following day, a meeting took place in the town hall during which Breese allegedly made racist statements with respect to Fun Quest’s customers. According to Magistrate Judge Jonathan Feldman of the Western District of New York, “numerous witnesses have testified that after drawing attention to photographs taken of the crowd gathered at Fun Quest on March 9, 2002, Breese stated in sum and substance: ‘Look at these pictures. There is not a white face among them. I don’t want these people in my town.’ “ At a special hearing on April 3, 2002, the town board voted to amend the permit to exclude teen dancing. Catalino said the ban “financially crippled” Fun Quest, as these dances accounted for approximately 50% of the business’s revenues. Fun Quest eventually closed. Catalino and the corporation filed for bankruptcy. Feldman granted the town’s motion for summary judgment with respect to Fun Quest’s substantive due process claim under 42 U.S.C 1983. He said that, although “plaintiffs have brought forth credible evidence of racial animus by Town Supervisor Breese,” such a showing was insufficient to establish that the town board had acted arbitrarily or irrationally. The 2d Circuit reversed. Writing on behalf of the court, Judge Guido Calabresi noted that the “potentially problematic comments” by town officials expressed concern that too many “city kids,” as opposed to Henrietta youths, came to Fun Quest. “We conclude that a jury could readily find that the term ‘city kids’ was used by Town Board members as a euphemism for African-American teenagers in Rochester,” he wrote. Calabresi noted that, according to the most recent census data, Henrietta’s population is about 84% white and 7% black. Rochester’s population is about 48% white and 38.5% black. Based on all the evidence, Calabresi said that a jury could draw the “reasonable inference” that the town board amended the permit in part “because of a majority of its members’ race-based hostility to Fun Quest’s clientele and that the other legitimate and non-discriminatory reasons they cited were either pretextual or not independently determinative � in other words, that the amendment was ‘tainted with . . . racial animus.’ “

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