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Appeal Nos. 11-55460, 11-55461 __________________________________________________ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________________ Pacific Shores Properties, LLC, et al., Plaintiffs and Appellants, v. City of Newport Beach, Defendant and Appellee. __________________________________________________ Newport Coast Recovery, LLC, et al., Plaintiffs and Appellants, v. City of Newport Beach, Defendant and Appellee. __________________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA THE HONORABLE JAMES V. SELNA CASE NOS. CV 08-00457-JVS (RNBX), CV 09-00701-JVX (RNBX) BRIEF OF AMICI CURIAE DISABILITY RIGHTS LEGAL CENTER, DISABILITY RIGHTS CALIFORNIA, WESTERN CENTER ON LAW & POVERTY AND DISABILITY RIGHTS EDUCATION & DEFENSE FUND IN SUPPORT OF A REVERSAL IN FAVOR OF APPELLANTS HUNTON & WILLIAMS LLP CHRIS M. AMANTEA (CA BAR 147339) ALEXANDREA H. YOUNG (CA BAR 233950) 550 SOUTH HOPE STREET, SUITE 2000 LOS ANGELES, CA 90071 TELEPHONE: (213) 532-2000 FACSIMILE: (213) 532-2020 DISABILITY RIGHTS LEGAL CENTER PAULA D. PEARLMAN (CA BAR 109038) SHAWNA L. PARKS (CA BAR 208301) UMBREEN BHATTI (NY BAR 4413407) 800 S. FIGUEROA STREET, SUITE 1120 LOS ANGELES, CA 90017 TELEPHONE: (213) 736-1496 FACSIMILE: (213) 736-1428

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TABLE OF CONTENTS Page I. II. III. Introduction .................................................................................................. 1 Interest of Amici Curiae................................................................................ 2 Brief Factual Background............................................................................. 3

IV. The District Court Erred in Granting Summary Judgment in Favor of the City on Appellants ADA Discrimination Claim............................................... 4 A. Facially Neutral Laws that Unduly Burden People With Disabilities, Such as the Newport Beach Ordinances at Issue, Violate the ADA................................................................................. 5 The District Court Erred in Demanding that Appellants Establish a Comparison Class in Order to Prevail. .......................... 6 Appellants Have Adequately Demonstrated the Essential Elements of Their ADA Discrimination Claim by Showing that the City Failed to Provide Them with Meaningful Access to Residential Neighborhoods Through the Use of Discriminatory Zoning Practices ............................................................................... 12 The Ordinances at Issue Here Deny Meaningful Access to Residential Neighborhoods to People With Disabilities, Who Have a Unique Need to Live in Supported Living Arrangements ..... 16

B. C.

D.

V.

CONCLUSION .......................................................................................... 25

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TABLE OF AUTHORITIES Page FEDERAL CASES Alexander v. Choate, 469 U.S. 287 (1985) ......................................................................... 4, 7, 8, 9 Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725 (9th Cir. 1999) ...................................................................... 13 Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) .......................................................... 4, 6, 8, 16 Dare v. State of California Dept. of Motor Vehicles, 191 F.3d 1167 (9th Cir. 1999) .................................................................. 4, 7 Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000) ...................................................................... 15 Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ......................................................................... 7 McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004) ............................................................. passim Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) ............................................................................ passim Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) .................................................................. 9, 11 Weinreich v. Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976 (9th Cir. 1997) ...................................................................... 12 STATE CASES Schloendorff v. Society of the New York Hosp., 105 N.E. 92 (N.Y. 1914)............................................................................. 22 -ii-

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TABLE OF AUTHORITIES (continued) Page FEDERAL STATUTES 28 C.F.R. 35.104 ............................................................................................... 13 28 C.F.R. 35.130(g) ........................................................................................... 13 42 U.S.C. 12101(a)(5) ......................................................................................... 5 42 U.S.C. 12101-12213 ................................................................................... 13 42 U.S.C. 12132 ............................................................................................ 6, 12 OTHER AUTHORITIES Douglas E. Miller, The Fair Housing Act, Oxford House, and the Limits of Local Control over the Regulation of Group Homes for Recovering Addicts, 36 WM. & MARY L. REV. 1467 (1995) .......................................... 19 Douglas L. Polcin & Diane Henderson, A Clean and Sober Place to Live: Philosophy, Structure, and Purported Therapeutic Factors in Sober Living Houses, 40 J. PSYCHOACTIVE DRUGS. 153 (2008) ............................ 18 Douglas L. Polcin, Rachael Korcha, Jason Bond, & Gantt Galloway, Eighteen-Month Outcomes for Clients Receiving Combined Outpatient Treatment and Sober Living Houses, 15 J. SUBSTANCE USE 352 (2010) ............................................................................................ 19, 20 Ellen MacEachen & Hugh Munby, Developmentally Disabled Adults in Community Living: The Significance of Personal Control, 6 QUALITATIVE HEALTH RESEARCH 71 (1996) ............................................... 23 Kevin C. Heslin, Alison B. Hamilton, Trudy K. Singzon, James L. Smith, & Nancy Lois Ruth Anderson, Alternative Families in Recovery: Fictive Kin Relationships Among Residents of Sober Living Homes, 21 QUALITATIVE HEALTH RESEARCH (2011).............................................. 20, 21

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TABLE OF AUTHORITIES (continued) Page NATL COUNCIL ON DISABILITY, OLMSTEAD: RECLAIMING INSTITUTIONALIZED LIVES 47 (2003).......................................................................................... 23 Peter Carlson, The Oxford House Experiment, Nov. 12, 1989, WASH. POST (Magazine), at W15 .................................................................................... 18 R. J. Stancliffe, K. C. Lakin, S. Larson, J. Engler, S. Taub & J. Fortune, Choice of Living Arrangements, 55 J. INTELLECTUAL DISABILITY RESEARCH 746 (2011)........................................................................... 23, 24 Scott Spreat & James W. Conroy, Community Placement for Persons with Significant Cognitive Challenges: An Outcome Analysis, 26 JASH 106 (2001) ............................................................................................ 24, 25 Tia E. Martinez & Martha R. Burt, Impact of Permanent Supportive Housing on the Use of Acute Care Health Services by Homeless Adults, 57 PSYCHIATRIC SERVS. 992 (2006) ................................................ 24 Timothy Cook, The Americans With Disabilities Act: The Move to Integration, 64 TEMPLE L. REV. 393 (1991).......................................... 17, 22

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I.

Introduction The City of Newport Beach (City) enacted certain zoning ordinances that

deliberately discriminate against people recovering from drug and alcohol addiction. The Citys actions denied people with disabilities meaningful access to beneficial housing in the residential community of their choice. In the court below, Appellants sober-living homes1 and their residents demonstrated the Citys violations of multiple laws including the Americans with Disabilities Act (ADA). Amici Curiae urge the Court to find that the District Court erred in requiring Appellants to proffer evidence that a similarly situated non-disabled individual was treated differently in order to sustain their ADA intentional discrimination claim, and thus improperly granted summary judgment in favor of the City.2

Sober living homes are alcohol and drug-free residences for unrelated adults who are recovering from substance addictions. Sober living homes do not provide any formal medical treatment services, though they may mandate attendance at 12-step groups. In addition to sober living homes, there are other types of supported living arrangements that are affected by the ordinance. We refer to them collectively as supported living arrangements. In these supported living situations, individuals with disabilities, including those recovering from substance abuse, choose to live as a family with unrelated adults in an environment that provides specific supports for their unique disability related needs. These homes may or may not be regulated or licensed, depending on the specific nature of the services. All of these living arrangements are affected by the ordinances. 2 The filing of this Amicus Curiae brief is permitted pursuant to FED. R. APP. P. 29(a), as all parties have consented to its filing. -1-

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The District Court improperly evaluated the Citys conduct only under the narrow framework that required a showing of a similarly situated non-disabled individual or group. When a facially neutral statute is alleged to violate the ADA it must be analyzed by assessing whether people with disabilities are denied meaningful access to state-provided benefits because of their unique needs. This inquiry focuses on the requirements of the ADA, not on any other comparison class or individual. Under this analysis, the Citys conduct violates the ADA. II. Interest of Amici Curiae Amici Curiae Disability Rights Legal Center, Disability Rights California, Western Center on Law and Poverty and Disability Rights Education & Defense Fund (collectively amici) are interested in this appeal because, under wellestablished law, the challenged zoning ordinances enacted by the City are discriminatory towards individuals with disabilities. Amici are substantially interested in reversing the lower court ruling because, inter alia, (1) the District Court erred in requiring Appellants to demonstrate that a similarly situated nondisabled individual or group was treated differently to maintain their ADA intentional discrimination claim; and (2) the challenged ordinances have harmed and will continue to harm many clients, members and communities that amici serve and represent.3

A brief description of each amicus organization is attached as Exh. 1. -2-

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Among the amici are authorities on community-based care, including organizations that help people with disabilities obtain the critical services and support they need to live independently. Amici are also authorities on the pervasive discrimination faced by people with disabilities, such as the Appellants in this case. With their expertise and experience, amici can assist the Court in understanding the correct legal standard and the benefits and importance of supported living arrangements and sober living homes in helping residents with disabilities to live in neighborhoods of their choice. III. Brief Factual Background In January 2008, the Newport Beach City Council enacted an ordinance that effectively prohibited sober living homes from operating in residential areas. They accomplished this by defining single housekeeping unit to ensure that sober living homes would not qualify and would instead fall within the definition of residential care facility. Then, the City prohibited residential care facilities from locating in any residential zone except the MFR district, which is zoned for multi-family residential usage, and then only with a permit.4 If an already-existing sober living home failed to obtain a permit under the onerous and lengthy application process, it was required to be shut down.

Excerpts of Record (ER) Volume 22, pg. 5458 [hereinafter [volume number]ER:[page number]]. -3-

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As Appellants are operators of, or residents in, sober living homes, the effect of Ordinance 2008-5 on them is substantial: since its passage, no new sober living homes, licensed or unlicensed, have opened in the City.5 Moreover, as of one year after passage of Ordinance 2008-5, only two of the 62 sober living homes subject to Ordinance 2008-5 were able to and had obtained use permits to remain in operation.6 Just as the City expected when it adopted these discriminatory ordinances, the number of housing opportunities in sober living homes is drastically reduced.7 IV. The District Court Erred in Granting Summary Judgment in Favor of the City on Appellants ADA Discrimination Claim The District Court wrongfully granted the Citys motion for summary judgment by erroneously requiring a showing of a non-disabled comparison class from Appellants, contrary to established case law.8 The meaningful access standard established by the United States Supreme Court, and followed by the Ninth Circuit, clearly forecloses such a requirement and the District Court was bound to apply this standard to the Appellants ADA discrimination claim.9

5 6

19ER:4712. 16ER:4147; 19ER:4791-92. 7 16ER:4080, 4145-46; 19:ER:4789, 4711-12, 4790-91. 8 Dare v. State of California Dept. of Motor Vehicles, 191 F.3d 1167, 1171 (9th Cir. 1999) (citing Alexander v. Choate, 469 U.S. 287 (1985)). 9 Choate, 469 U.S. at 301, Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996); McGary v. City of Portland, 386 F.3d 1259, 1267 (9th Cir. 2004); Dare, 191 F.3d at 1171. -4-

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In the court below, Appellants established that because of the carefully crafted ordinances by the City, they were denied meaningful access to singlefamily neighborhoods. As supported by social science research, medicine, and law, the freedom to choose ones housing situation, including a supported living arrangement that meets ones disability related needs, and still live in the same low-density part of the community as all other individuals, provides the best avenue for individuals with disabilities to gain independence and achieve a better quality of life.10 The City provides the benefit of living in low-density residential neighborhoods, and Appellants were severely restricted in the location of the recovery services they need. Appellants have unique needs related to their disabilities and thus were unduly burdened by the discriminatory ordinances, and the District Courts decision must be reversed. A. Facially Neutral Laws that Unduly Burden People With Disabilities, Such as the Newport Beach Ordinances at Issue, Violate the ADA

The ADA has, as its principal underlying objectives, the elimination of both outright intentional exclusion as well as the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, [and] failure to make modifications to existing facilities and practices.11 Title II of the ADA therefore prohibits not only overt discrimination against
10 11

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 588 (1999) (plurality). 42 U.S.C. 12101(a)(5). -5-

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individuals with disabilities, but also forms of discriminationincluding facially neutral lawsthat deny people with disabilities meaningful access to public services, such as the Newport Beach ordinances at issue here.12 As the Ninth Circuit has directly stated: We have repeatedly recognized that facially neutral policies may violate the ADA when such policies unduly burden disabled persons, even when such policies are consistently enforced.13 B. The District Court Erred in Demanding that Appellants Establish a Comparison Class in Order to Prevail

The lower court incorrectly required evidence of a comparison non-disabled class. In doing so, the District Court failed to recognize that the ADA and the Fair Housing Act require different legal analyses.14 Quite simply, the District Court failed to consider the correct legal standards that were presented to it15 and therefore came to an incorrect result. When presented with facially neutral laws, such as the Citys zoning ordinances at issue here, a court must determine whether individuals with disabilities are denied meaningful access to public programs,

12

See 42 U.S.C. 12132; Olmstead, 527 U.S. at 581; Crowder, 81 F.3d at 1483-84 (holding that Hawaiis facially neutral 120-day quarantine for all carnivorous animals entering Hawaii disproportionately burdened visually-impaired persons, because of their unique dependence on guide dogs, and thereby denied them meaningful access to state services). 13 McGary, 386 F.3d at 1265. 14 1ER:51. Amici understand that the courts Fair Housing Act analysis also is challenged on appeal; this brief does not address the courts interpretation of the Fair Housing Act. 15 See, e.g., 12ER:2874-75. -6-

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services, and activities.16 There is a denial of meaningful access when (1) persons with disabilities are disproportionately burdened due to their unique needs, or (2) a public entity fails to provide reasonable accommodations for disabled persons. A reasonable accommodation is one way that a public entity can provide the requisite meaningful access to its programs or services.17 The United States Supreme Court has rejected the District Courts comparative approach to determining, under the ADA, whether an individual was discriminated against because of his or her disability. In Olmstead v. L.C. ex rel. Zimring, the Court rejected the suggestion that a discrimination claim under the ADA necessitates a showing of a comparison class that was treated differently: Nor were [the plaintiffs] subjected to discrimination, the State contends, because discrimination necessarily requires uneven treatment of similarly situated individuals, and [plaintiffs] had identified no comparison class, i.e., no similarly situated individuals given preferential treatment. We are satisfied that Congress had a more comprehensive view of the concept of discrimination advanced in the ADA.18 The Olmstead decision flowed from the earlier articulation of the meaningful access test formulated by the United States Supreme Court in

16 17

Choate, 469 U.S. 287; McGary, 386 F.3d at 1267; Dare, 191 F.3d at 1171. Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003) (A reasonable accommodation is one that gives the otherwise qualified plaintiff with disabilities meaningful access to the program or services sought.). 18 Olmstead, 527 U.S. at 598 (emphasis added). -7-

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Choate.19 In Choate, the Supreme Court held that a court should consider whether the allegedly discriminatory, facially neutral statute prevents meaningful access to the benefit that the grantee offers.20 This Court has consistently followed this approach. In Crowder v. Kitagawa, the Court held that with respect to facially neutral laws, courts must determine whether individuals are denied meaningful access to programs, services, and activities.21 In Crowder, this Court held that a facially neutral and uniformly enforced Hawaii law requiring a 120-day quarantine on carnivorous animals entering the state violated the ADA because it burden[ed] visuallyimpaired persons in a manner different and greater than it burden[ed] others.22 In doing so, the Crowder Court explained that the United States Supreme Court had previously determined that judicial review of each instance of disability discrimination as to whether it was better classified as deliberate or disparate impact discrimination would be overly burdensome and it was more useful to

19 20

Choate, 469 U.S. 287. Id. at 301. Though Choate interpreted the Rehabilitation Act, [t]he legislative history of the ADA indicates that Congress intended judicial interpretation of the Rehabilitation Act be incorporated by reference when interpreting the ADA. Crowder, 81 F.3d at 1484 (internal citation omitted). 21 Crowder, 81 F.3d at 1484. 22 Id. -8-

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assess whether disabled persons were denied meaningful access to state-provided services.23 Relying on Crowder, the Ninth Circuit in Rodde v. Bonta upheld a preliminary injunction precluding Los Angeles County from closing a hospital dedicated primarily to providing rehabilitative services to individuals with disabilities.24 Because no other facility in the County could provide comparable services, the Court held that the closure of [the facility] would deny certain disabled individuals meaningful access to government-provided services because of their unique needs, while others would retain access to the same class of services.25 State action that denies persons with disabilities meaningful access to government-provided services, or disproportionately burdens people with disabilities because of their unique needs, is actionable under the ADA. It is this well-established meaningful access test that the District Court failed to apply. The District Court stated: Plaintiffs have not identified, and the Court has not found, any case in which a facially neutral statute that was passed with an intent to discriminate against a protected class was found to be invalid without an accompanying showing of either actual disparate treatment of others similarly situated or disparate impact on a protected class.26

23 24

Id. (citing Choate, 469 U.S. at 302) (emphasis added). Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004). 25 Id. at 998. 26 1ER:57. -9-

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Thus, the Court failed to utilize the test set out in Olmstead, Choate, Dare, Crowder, Rodde, and similar cases. Amici agree with Appellants that a party does not need to establish the existence of a comparison class in order to make out an intentional discrimination claim. However, as explained above, courts have invalidated facially neutral statutes regardless of intent when they place a lopsided burden on people with disabilities. Indeed, this Court has held that requiring the demonstration of unequal treatment to sustain an ADA discrimination claim eviscerates [a] fundamental purpose of the ADA.27 In McGary v. City of Portland, this Court held that evidence of similarlysituated non-disabled persons that were treated differently is not a requirement of an ADA discrimination claim. There, the plaintiff alleged that the city violated the ADA as its nuisance abatement policy burdened him in a manner different and greater than others due to his disability when it denied him an extension to clean his yard.28 The Court explained that the lower court had dismissed the plaintiffs ADA claim on the ground that he failed to allege facts indicating that the defendant city had acted by reason of his disability since non-disabled residents were also subject to the nuisance abatement ordinance.29 The district court required that the

27 28

McGary, 386 F.3d at 1266. Id. at 1265. 29 Id. -10-

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plaintiff demonstrate that a non-disabled neighbor with a yard in similar condition to plaintiffs was given an extension of time.30 The Ninth Circuit found that the district court erred in doing so, and that the Court has repeatedly recognized that facially neutral policies may violate the ADA when such policies unduly burden disabled persons, even when such policies are consistently enforced.31 Governmental actions, such as the Newport Beach ordinances at issue here, which disproportionately burdens people with disabilities because of their unique needs [is] actionable under the ADA.32 The evidence in this case is sufficient to raise a genuine issue of material fact that the City of Newport Beachs zoning ordinancesthough facially neutraldenied Appellants meaningful access to benefits due to their disabilities. Appellants are not required to proffer evidence that a non-disabled resident was zoned out in order to allege or sustain their ADA discrimination claim. Yet, like the lower court in McGary, the District Court here improperly required that Appellants demonstrate that they were treated differently than similarly situated non-disabled persons. The law as laid out in McGary, Choate, Olmstead, Crowder and Rodde compels reversal.

30 31

Id. Id. (internal citation omitted) (emphasis added). 32 Rodde v. Bonta, 357 F.3d 988, 995 (9th Cir. 2004). -11-

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C.

Appellants Have Adequately Demonstrated the Essential Elements of Their ADA Discrimination Claim by Showing that the City Failed to Provide Them with Meaningful Access to Residential Neighborhoods Through the Use of Discriminatory Zoning Practices

Appellants demonstrated each of the required elements of their ADA discrimination claim. To state a claim of disability discrimination under Title II of the ADA, a plaintiff must establish three elements: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entitys services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.33 In the court below, the Appellants demonstrated that they were consistently denied meaningful access to residing in low-density residential neighborhoods integrated into the Newport Beach community, due to their disabilities and their unique needs for a supported living arrangement related to their disabilities. As a threshold matter, the parties do not dispute that Appellants are disabled within the meaning of the ADA.34 Individuals recovering from drug or alcohol addiction are considered disabled within the meaning of the ADA as they have an impairment that substantially limits one or more major life activities in its own
33

Weinreich v. Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976, 978 (9th Cir. 1997) (internal citations and quotations omitted); see also 42 U.S.C. 12132. 34 1ER:47. -12-

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right or as a result of the attitudes of others toward such impairment.35 Moreover, each of the Appellants is an aggrieved person under the ADA because they were excluded from participating in or were denied the benefits of public services, due to their disabilities, by the discriminatory acts committed by the City. These discriminatory practices include: enacting and enforcing the ordinance with the intent or effect of discriminating against persons with disabilities, restricting Appellants housing choices to certain zoning districts, demanding different permit requirements for disabled housing, failing to make or delaying reasonable accommodations, selectively enforcing land use requirements, and otherwise making housing for people with disabilities unavailable.36 It is also undisputed that Title II applies to zoning, such that the challenged zoning practices of the City of Newport Beach at issue here are indeed services, programs or activities within the meaning of the ADA.37 The record before the District Court exhibits overwhelming evidence that Appellants were consistently denied meaningful access to residential neighborhoods, especially low-density residential neighborhoods, integrated into the Newport Beach community, and
35 36

42 U.S.C. 12101-12213; 28 C.F.R. 35.104. 1ER:130-32, 148, 174-76, 192-93. Appellant entities have standing to bring this action. A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. 28 C.F.R. 35.130(g) (emphasis added). 37 Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730-732 (9th Cir. 1999). -13-

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because of their unique needs were unduly burdened by this denial. Under Ordinance 2008-05, residential care facilities, as overinclusively defined by the City, are no longer permitted in any residential zones except for multi-family (MFR), and then only with a use permit.38 People with disabilities who need the recovery components of a supported living environment are unduly burdened by the Citys Ordinance severely restricting the location of those services to highdensity areas and also requiring them to submit to a lengthy and onerous permit process. Meaningful access is denied when people with disabilities are disproportionately burdened due to their unique needs, or when a public entity fails to provide reasonable accommodations for them. Appellants also demonstrated that the City failed to provide reasonable accommodations, and in fact intentionally made it more difficult for them to achieve a reasonable accommodation. Appellant Pacific Shores made a reasonable accommodation request on the form required by the City in September 2008.39 The first public hearing was conducted over six months later, after Pacific Shores had responded to the Citys demand for further information.40 The Hearing Officer denied Pacific Shores reasonable accommodation requests, but indicated that a request which reduced the number of

38 39

22ER:5458. 6ER:1352. 40 6ER:1352-54. -14-

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residents might be granted in the future.41 Pacific Shores appealed to the City Council, and the matter was set for hearing almost nine months after Pacific Shores first appearance before the Hearing Officer.42 After much disagreement about how much profit Pacific Shores should be allowed to have, in March 2010, a year and one-half after applying for the reasonable accommodation and three public hearings later, Pacific Shores received an accommodation allowing it to operate only two houses with up to 12 residents each, far short of its operating capacity.43 Delay and imposition of overly restrictive conditions, such as that engaged in by the City here, on a reasonable accommodation request amounts to a constructive denial.44 The Ordinance sets no timeline for reasonable accommodation decisions, therefore rendering it defective for an additional reason. A reasonable accommodation procedure is separate from zoning applications and requires a prompt decision. That did not occur here, and will not under the Citys current stance of doing everything possible to prevent Appellants from operating and living within the community of Newport Beach.

41 42

2ER:393; 6ER:1358, 1437. 6ER:1427. 43 6ER:1363. 44 See, e.g., Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000). -15-

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Appellants demonstrated that people with disabilities lack meaningful access to supported living arrangements in residential neighborhoods due to the Citys intentional attempt to zone out these living arrangements and block them from obtaining permits. A genuine issue of material fact exists as to whether the City violated the ADA by enacting, enforcing and failing to provide reasonable accommodations to the challenged ordinances. D. The Ordinances at Issue Here Deny Meaningful Access to Residential Neighborhoods to People With Disabilities, Who Have a Unique Need to Live in Supported Living Arrangements

The benefits and necessity of shared housing in the community for people with disabilitiesespecially those recovering from alcohol, drug, and other addictionsare undisputed.45 The specific support functions of the sober living setting satisfy the unique needs of persons with disabilities who are recovering from addiction and substance abuse, just like a service animal supports the unique needs of a blind person.46 For more than 50 years, the overwhelming trend in care for people with disabilities has been toward community integration, in large part through arrangements like sober living homes and similar supported living arrangements. The language and intent of the ADA rejects now-discredited practices of housing people with disabilities only in segregated settings, and reflects a national commitment to autonomy, independence, and quality of life for
45 46

Olmstead, 527 U.S. at 588. Crowder, 81 F.3d at 1484. -16-

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people with disabilities. Experts endorse sober living homes as fully embracing these values, and promoting better outcomes for residents. The ADAs legislative history makes clear that when Congress passed the law in 1990, the nation had moved from relying on large, custodial institutions to a new appreciation of the value of community-based care. One noted commentator observed: Such facilities have been judicially recognized as being among the most isolated and restrictive and almost totally impersonal settings in which a person can live. . . . [O]nce there, the residents lose the basic rights that [persons without disabilities] take for granted, like choosing where they live, who they live with, what they eat, when to eat, [and] who their friends are . . . .47 Indeed, the importance of choice, and control in ones living situation for people with disabilities cannot be overstated, nor can the benefits of living in the community. In the U.S. Supreme Courts landmark decision in Olmstead,48 for example, Justice Ginsberg began by noting Congressional findings that historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against

47

Timothy Cook, The Americans With Disabilities Act: The Move to Integration, 64 TEMPLE L. REV. 393, 412 (1991) (Exh. 2). 48 527 U.S. 581. -17-

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individuals with disabilities continue to be a serious and pervasive social problem.49 Sober living homes have existed in the United States for many years. The earliest models of sober living homes began in the 1830s and were run by religious institutions, including the YMCA, YWCA, and Salvation Army.50 Residents in these homes had little input into operations of the facilities, and their landlords frequently encouraged attendance at religious services. After World War II, with the increase in population of many metropolitan areas and more widespread alcohol related problems, recovering Alcoholics Anonymous members opened twelfth step houses to address the need for alcohol- and drug-free living environments. By the 1960s, there were several dozen such houses in Los Angeles. In 1975, lawyer and recovering alcoholic Paul Molloy founded Oxford House.51 The house was self-governed and ran on two simple rules: no resident could drink or take drugs, and each resident had to work and pay rent to stay.52 Additional homes on the Oxford House model were established mainly in the

49 50

Id. at 588. Douglas L. Polcin & Diane Henderson, A Clean and Sober Place to Live: Philosophy, Structure, and Purported Therapeutic Factors in Sober Living Houses, 40 J. PSYCHOACTIVE DRUGS. 153, 154 (2008) (Exh. 3). 51 Peter Carlson, The Oxford House Experiment, Nov. 12, 1989, WASH. POST (Magazine), at W15 (Exh. 4). 52 Id. -18-

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Washington, D.C., area, until in the late 1980s, Molloy succeeded in getting federal block grants made contingent upon state support for self-governing supported living arrangements.53 Over the next several years, more than 500 such homes were established in 35 states.54 Many sober living homes in California are affiliated with associations or coalitions, including the California Association of Addiction Recovery Resources in the northern part of the state and the Sober Living Network in the south.55 In a recent study of sober living home residents over an 18 month period, researchers noted that regardless of the referring source of the residents, they showed improvement at a 6 month follow-up in a variety of areas, including substance use, and work.56 At 12 and 18 month follow-ups, most of those improvements persisted.57 The magnitude of improvements was tremendous. For example, relative to baseline, residents at 6 months were 16 and one-half times likely to report being abstinent. By 18 months the odds ratio dropped to 6.5, but

53

Douglas E. Miller, The Fair Housing Act, Oxford House, and the Limits of Local Control over the Regulation of Group Homes for Recovering Addicts, 36 WM. & MARY L. REV. 1467, 1476 (1995) (Exh. 5). 54 Id. 55 Id. 56 Douglas L. Polcin, Rachael Korcha, Jason Bond, & Gantt Galloway, EighteenMonth Outcomes for Clients Receiving Combined Outpatient Treatment and Sober Living Houses, 15 J. SUBSTANCE USE 352, 355 (2010) (Exh. 6). 57 Id. at 359. -19-

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was still highly significant.58 Importantly, residents were able to retain their improvements even after leaving the sober living homes.59 The researchers in that study pointed to three important characteristics of sober living homes: residents are free to stay as long as they like, provided they meet the homes rules and expectations; residents finance them through fees, thereby inoculating themselves from the effects of state and local budget cuts; and residents are involved in the management of the house, which generates a sense of resident empowerment and commitment.60 For individuals also involved in outpatient programs, sober living homes are especially important. Indeed, [t]he lack of a living environment that supports sustained recovery is a major obstacle to successful treatment of substance use disorders in outpatient programs.61 The anthropological concept of fictive kinship generally refers to the use of kinship terminology to connote close relationships between people who are not related by biology or legal status.62 Fictive kinship often involves co-residence,

58 59

Id. Id. The researchers noted that areas where residents entered with moderate to high severity but did not improve were medical, psychiatric, and family problems. The researchers noted the need for further investigation to understand why, and suggested that one potential factor might be that problems in these areas might reflect chronic conditions that are not easily improved. Id. at 363. 60 Id. at 353-54. 61 Id. at 364. 62 Kevin C. Heslin, Alison B. Hamilton, Trudy K. Singzon, James L. Smith, & Nancy Lois Ruth Anderson, Alternative Families in Recovery: Fictive Kin -20-

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economic interdependency, and mutual obligations to provide care.63 Sober living homes typically aim to create such networks among residents in part by instituting house rules and general expectations for mutually supportive behavior.64 In studies, participants have used the metaphor of family to convey the importance of the role of their fellow sober living home residents.65 In a study conducted as part of a partnership between faculty at the Charles Drew University and members of the Los Angeles County Sober Living Coalition, involving residents of 25 sober living houses, researchers concluded that [b]eyond shelter, [sober living home]s meet critical needs for caretaking and social support that might otherwise result in increased demands on our already strained public-sector health and social services system, and noted that the ADA and Fair Housing Amendments Act have been critical for enabling disabled people to establish group homes that are integrated with the larger community, even though [sober living home] owners and operators continue to face harassment by opponents who are either unaware of or not concerned about these laws.66 People in recovery are not the only people with disabilities that will be negatively affected by allowing discriminatory zoning ordinances, like this one, to Relationships Among Residents of Sober Living Homes, 21 QUALITATIVE HEALTH RESEARCH 2011 477-488, 478 (2011) (Exh. 7). 63 Id. 64 Id. 65 Id. 66 Id. at 486. -21-

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stand. Social scientists and healthcare researchers outside the specific sober living home context have also consistently found that living in shared housing or housing with support produces positive results when undertaken with individualized care planning and the full range of needed services. This living arrangement: dramatically improves the overall quality of life for persons with disabilities in a number of ways that are more impressionistic, yet still capable of evaluation. Researchers have measured, for example, a significantly more positive affect and appearance for persons with disabilities who have been integrated than for matched groups that were segregated. This is particularly important for children with disabilities. It is wellaccepted in our society that children should grow up in families. Children with disabilities suffer significant adverse effects when deprived of that opportunity through isolation in a segregated environment. Educators and disability researchers report integration produces improved appearance and responsiveness for persons with disabilities, even for those who previously had been largely unresponsive without contact with others without disabilities. Persons with disabilities living in the community are more likely to participate in the management of their activities, to make their own decisions and to be more involved in all decisions which affect their lives.67 Housing in an integrated setting helps to foster autonomy and independence, which in turn help improve medical outcomes and quality of life. As Justice (then Judge) Cardozo explained long ago, control over ones body and medical care is an essential freedom: Every human being of adult years and sound mind has a right to determine what shall be done with his own body.68 But such autonomy is not

67 68

Cook, supra note 47, at 455. Schloendorff v. Society of the New York Hosp., 105 N.E. 92, 93 (N.Y. 1914). -22-

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merely an abstract social good. The National Council on Disability points to multiple studies providing evidence . . . that being able to make personal choices regarding ones own life promotes health, well-being, and personal satisfaction,69 and there is further evidence as well. One study of developmentally disabled adults, for example, revealed that community homes were unsatisfactory when they replicated features of institutional life, such as a regimented internal structure.70 Participants expressed awareness of negative societal attitudes towards them, which led to feelings of isolation and mistrust of services and a consequent need to promote personal strengths and control.71 In another study of adults with intellectual disabilities, researchers noted that their findings provide a clear endorsement of policies promoting more individualized living settings . . . .72 Citing an earlier study, they pointed out that individuals with greater choice of living companions and of where to live had better outcomes in four of six areas examined: loneliness (only for choice of whom to live with), feeling happy, home staff are nice, and liking
69

NATL COUNCIL ON DISABILITY, OLMSTEAD: RECLAIMING INSTITUTIONALIZED LIVES 24 (2003), available at http://www.ncd.gov/publications/2003/Aug192003 (Exh. 8). 70 Ellen MacEachen & Hugh Munby, Developmentally Disabled Adults in Community Living: The Significance of Personal Control, 6 QUALITATIVE HEALTH RESEARCH 71, 72 (1996) (Exh. 9). 71 Id. at 80. 72 R. J. Stancliffe, K. C. Lakin, S. Larson, J. Engler, S. Taub & J. Fortune, Choice of Living Arrangements, 55 J. INTELLECTUAL DISABILITY RESEARCH 746-762, 746 (2011) (Exh. 10). -23-

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home (the other two areas showed no significant differences.73 Similarly, researchers who have focused on the outcome of community placement for people with significant cognitive challenges have observed that deinstitutionalization of people with mental retardation has resulted in increased skills and an improved quality of life.74 Moreover, there is little empirical support for the fears regarding the welfare of extremely challenged individuals who are placed in smaller community settings.75 Rather, such individuals are served well in the community.76 Shared and supported housing has positive outcomes for people with disabilities. For example, a study of homeless individuals with mental illness, substance use disorder, and other disabilities, revealed that moving into supportive housing resulted in significant declines in the percentage of those individuals who had any emergency department visits, the mean number of emergency department visits, and the total number of emergency department visits.77 Other studies of the effects of community placement on individuals with significant support needs

73 74

Id. at 747 (internal citation omitted). Scott Spreat & James W. Conroy, Community Placement for Persons with Significant Cognitive Challenges: An Outcome Analysis, 26 JASH 106 (2001) (Exh. 11). 75 Id. at 111. 76 Id. 77 Tia E. Martinez & Martha R. Burt, Impact of Permanent Supportive Housing on the Use of Acute Care Health Services by Homeless Adults, 57 PSYCHIATRIC SERVS. 992, 995 (2006) (Exh. 12). -24-

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indicate that supported living arrangements provide other increases in quality of lifeincluding increases in self-help, social skill and domestic skill acquisition, along with engagement in more purposeful activity, a more varied lifestyle, and more comfortable surroundings.78 Like the sober living homes and residential treatment facilities at issue in this case, homes where unrelated people with developmental, psychiatric, and other disabilities live together as families with support would be barred by the Newport Beach ordinances. V. CONCLUSION For the foregoing reasons, and the reasons set forth in Appellants opening brief, the order and judgment of the District Court should be reversed and judgment should be entered in favor of the Appellants. DATED: October 11, 2011 Chris M. Amantea Alexandrea H. Young HUNTON & WILLIAMS LLP By /s/ Chris M. Amantea Chris M. Amantea Counsel for Amicus Curiae Disability Rights Legal Center

78

Spreat & Conroy, supra note 76, at 107. -25-

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CORPORATE DISCLOSURE STATEMENT Pursuant to FED. R. APP. P. 26.1, counsel represents that none of the amici curiae on whose behalf this brief is filed, have parent, subsidiary, or affiliated corporations that have issued shares to the public.

DATED: October 11, 2011 Chris M. Amantea Alexandrea H. Young HUNTON & WILLIAMS LLP By /s/ Chris M. Amantea Chris M. Amantea Counsel for Amicus Curiae Disability Rights Legal Center

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CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 32 I certify that, pursuant to FED. R. APP. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached amicus curiae brief uses a proportionately spaced, 14-point typeface, and consists of 5628 words. This word count does not include the Table of Contents, the Table of Authorities, Corporate Disclosure Statement, this Certificate of Compliance, the Certificate of Service, or the Statement Pursuant to FED. R. APP. P. 29(c)(5). In preparing this certificate, I relied on the word count function of Microsoft Word 2003, used to prepare this brief.

DATED: October 11, 2011 Chris M. Amantea Alexandrea H. Young HUNTON & WILLIAMS LLP By /s/ Chris M. Amantea Chris M. Amantea Counsel for Amicus Curiae Disability Rights Legal Center

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STATEMENT PURSUANT TO FED. R. APP. P. 29(C)(5) No partys counsel authored the brief in whole or in part. No party or partys counsel contributed money that was intended to fund preparing or submitting the brief. No person other than the amici curiae, their members, and their counsel contributed money that was intended to fund preparing or submitting the brief.

DATED: October 11, 2011 Chris M. Amantea Alexandrea H. Young HUNTON & WILLIAMS LLP By /s/ Chris M. Amantea Chris M. Amantea Counsel for Amicus Curiae Disability Rights Legal Center

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