New Directions Treatment Services v. City of Reading

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

6-15-2007

New Directions v. Reading

Precedential or Non-Precedential: Precedential

Docket No. 05-4353

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 05-4353

NEW DIRECTIONS TREATMENT SERVICES, on its own

behalf and on

behalf of its patients; ANGEL DOE; DAN COE; JOSEPH

JOE;

LOUIS LOE; CARLOS POE; PETER VOE, on their own

behalf

and on behalf of the class,

Appellants

v.

CITY OF READING; VAUGHN SPENCER, City Council

President, in

his official capacity, and City Council Members; ANGEL

FIGUEROA; GEORGE KERNS; MICHAEL D. SCHORN;

DENNIS STERNER;

DONNA REED; JEFFREY WALTMAN; CASEY

GANSTER, In their

individual and official capacities

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No.: 04-cv-1311

District Judge: The Honorable Paul S. Diamond

Argued on December 11, 2006

Before: SMITH and ROTH, Circuit Judges,

and IRENAS, District Judge*

(Filed: June 15, 2007)

Michael Churchill

Barbara E. Ransom (argued)

Public Interest Law Center of Philadelphia

125 South 9th Street

Suite 700

Philadelphia, PA 19107

Counsel for Appellants

Steven K. Ludwig (argued)

Fox Rothschild

2000 Market Street

10th Floor

Philadelphia, PA 19103

Counsel for Appellees

*

The Honorable Joseph E. Irenas, Senior District Judge for

the United States District of New Jersey, sitting by designation.

2

OPINION

SMITH, Circuit Judge.

This case presents the familiar conflict between the legal

principle of non-discrimination and the political principle of not-

in-my-backyard. New Directions Treatment Services, a

reputable and longstanding provider of methadone treatment,

sought to locate a new facility in the City of Reading. A

Pennsylvania statute that facially singles out methadone clinics

gave the City of Reading the opportunity to vote to deny the

permit. The City of Reading availed itself of that opportunity.

New Directions and individual methadone patients

brought suit on constitutional and federal statutory grounds,

raising both facial and as applied challenges to the statute. The

City of Reading successfully moved for summary judgment

against all of plaintiffs’ claims. New Directions and the

individual plaintiffs’ appeal is before us.

I. Summary of facts and procedural history

New Directions Treatment Services (“NDTS”) operates

several methadone clinics throughout Pennsylvania, including

3

one in West Reading.1 NDTS provides methadone

1

The National Institute on Drug Abuse (part of the National

Institutes of Health) describes methadone treatment:

Methadone treatment has been used for more than

30 years to effectively and safely treat opioid

addiction. Properly prescribed methadone is not

intoxicating or sedating, and its effects do not

interfere with ordinary activities such as driving

a car. The medication is taken orally and it

suppresses narcotic withdrawal for 24 to 36 hours.

Patients are able to perceive pain and have

emotional reactions. Most important, methadone

relieves the craving associated with heroin

addiction; craving is a major reason for relapse.

Among methadone patients, it has been found that

normal street doses of heroin are ineffective at

producing euphoria, thus making the use of heroin

more easily extinguishable.

Methadone’s effects last four to six times as long

as those of heroin, so people in treatment need to

take it only once a day. Also, methadone is

medically safe even when used continuously for

10 years or more. Combined with behavioral

therapies or counseling and other supportive

services, methadone enables patients to stop using

heroin (and other opiates) and return to more

stable and productive lives.

4

http://www.nida.nih.gov/researchreports/heroin/heroin5.html#

treatment.

The Office of National Drug Control Policy (of the

Executive Office of the President) provides further information

on methadone treatment:

Background Information

Methadone is a rigorously well-tested medication

that is safe and efficacious for the treatment of

narcotic withdrawal and dependence. For more

than 30 years this synthetic narcotic has been used

to treat opioid addiction.

***

Methadone reduces the cravings associated with

heroin use and blocks the high from heroin, but it

does not provide the euphoric rush. Consequently,

methadone patients do not experience the extreme

highs and lows that result from the waxing and

waning of heroin in blood levels. Ultimately, the

patient remains physically dependent on the

opioid, but is freed from the uncontrolled,

compulsive, and disruptive behavior seen in

heroin addicts.

Withdrawal from methadone is much slower than

that from heroin. As a result, it is possible to

maintain an addict on methadone without harsh

side effects. Many MMT [methadone

maintenance treatment] patients require

5

continuous treatment, sometimes over a period of

years.

Methadone maintenance treatment provides the

heroin addict with individualized health care and

medically prescribed methadone to relieve

withdrawal symptoms, reduces the opiate craving,

and brings about a biochemical balance in the

body. Important elements in heroin treatment

include comprehensive social and rehabilitation

services.

Availability of Treatment

About 20% of the estimated 810,000 heroin

addicts in the United States receive MMT

(American Methadone Treatment Association,

1999). At present, the operating practices of

clinics and hospitals are bound by Federal

regulations that restrict the use and availability of

methadone. These regulations are explicitly stated

in detailed protocols established by the U.S. Food

and Drug Administration (FDA). Additionally,

most States have laws that control and closely

monitor the distribution of this medication.

In July 1999 the U.S. Department of Health and

Human Services released a Notice of Proposed

Rulemaking (NPRM) for the use of methadone.

For the first time in more than 30 years, the

6

NPRM proposes that this medication take its

rightful place as a clinical tool in the treatment of

the heroin addict. Instead of its use being

mandated by regulations, programs will establish

quality assurance guidelines and have to be

accredited. The proposed new system will allow

greater flexibility by the treating physician and

ensure appropriate clinical management of the

patient’s needs. This proposed change in policy

would eliminate most of the current regulations

and allow greater clinical discretion for treatment

by the physician. Accreditation establishes a

clinical standard of care for the treatment of

medical conditions. In the foreseeable future,

clinic and hospital programs would be accredited

by a national and/or State accrediting body.

Responsibility for preventing the diversion of

methadone to illicit use will remain with the Drug

Enforcement Administration.

***

Benefits

Evidence shows that continuous MMT is

associated with several other benefits.

MMT costs about $13 per day and is considered

a cost-effective alternative to incarceration

(Office of National Drug Control Policy, 1998a).

MMT has a benefit-cost ratio of 4:1, meaning $4

7

in economic benefit accrues for every $1 spent on

MMT (COMPA, 1997).

MMT has a significant effect on the spread of

HIV/AIDS infection, hepatitis B and C,

tuberculosis, and sexually transmitted diseases

(COMPA, 1997). Heroin users are known to share

needles and participate in at-risk sexual activity

and prostitution, which are significant factors in

the spread of many diseases. Research suggests

that MMT significantly decreases the rate of HIV

infection for those patients participating in MMT

programs (Firshein, 1998).

MMT allows patients to be free of heroin

addiction. The National Institute on Drug Abuse

found that, among outpatients receiving MMT,

weekly heroin use decreased by 69%. This

decrease in use allows for the individual's health

and productivity to improve (Office of National

Drug Control Policy, 1998a). Patients were no

longer required to live a life of crime to support

their habit, and criminal activity decreased by

52% among these patients. Full-time employment

increased by 24%. In a 1994 study of drug

treatment in California, researchers found that

rates of illegal drug use, criminal activity, and

hospitalization were lower for MMT patients than

for addicts in any other type of drug treatment

program.

8

The Drug Abuse Treatment Outcome Study

(DATOS) conducted an outpatient methadone

treatment (OMT) evaluation examining the

long-term effects of MMT (Hubbard et al., 1997).

The pretreatment problems consisted of weekly

heroin use, no full-time employment, and illegal

activity. Results of the 1-year follow-up showed

a decrease in the number of weekly heroin users

and a reduction in illegal activity after OMT.

There was no significant change in unemployment

rates.

A Review

MMT is one of the most monitored and regulated

medical treatments in the United States. Despite

the longstanding efficacy of MMT, only 20% of

heroin addicts in the United States are currently in

treatment. The National Institutes of Health

Consensus Development Conference on Effective

Medical Treatment of Heroin Addiction

concluded that heroin addiction is a medical

disorder that can be effectively treated in MMT

programs. The Consensus panel recommended

expanding access to MMT by increasing funding

and minimizing Federal and State regulations.

Further research must be conducted on factors

leading to heroin use and the differences among

various users and their ability to end opiate

9

maintenance for adults who have been addicted to heroin for at

least a year. NDTS’s Executive Director, Glen Cooper,

contacted the City of Reading (“the City”) to discuss opening an

additional treatment center, as their West Reading facility had

developed a waiting list for treatment. NDTS met with City

officials on January 24, 2001, to discuss potential sites within

the City. NDTS met with the City Council two months later to

continue the discussion. Although NDTS had not yet obtained

an operating permit from the City, NDTS signed a ten-year lease

on a property located at 700 Lancaster Avenue. NDTS then

submitted a zoning permit application.

The Lancaster Avenue property is located on a

commercial highway that is interspersed with 40-75 private

residences. The Berks Counseling Center previously occupied

the site, providing treatment to patients with mental health

problems and drug addictions. It did not provide methadone

treatment.2 NDTS intended to serve “a couple

addiction before the demand for heroin addiction

treatment can be effectively met by increased

MMT availability.

http://www.whitehousedrugpolicy.gov/publications/factsht/m

ethadone/index.html.

2

The website for the Berks Counseling Center, which has

since relocated, describes its activities:

10

Our mission is to provide counseling and

supportive services to enable individuals and

families to achieve a healthy and more productive

lifestyle

Description:

Our purpose is to offer addiction and mental

health out patient treatment, case management,

supportive services, and housing. Services extend

to individuals, couples, families, adolescents and

children. Our target population includes Berks

County residents impacted upon by chemical

dependency and/or mental illness. Berks

Counseling Center (BCC) places a special

emphasis on serving those persons who cannot

access treatment elsewhere due to financial

difficulties. We believe that community

enlightenment and family strength are key

components to the prevention and reduction of

drug abuse. We have a satellite site at the

Reading/Berks Emergency Shelter in order to

better serve the population residing at the Shelter.

History:

Berks Counseling Center (BCC) is a private,

non-profit corporation founded in October 1977

as Berks Youth Counseling Center. BCC is

licensed by the State Dept. of Health, Division of

Program Licensing; and the Dept. of Public

Welfare, Office of Mental Health. BCC has been

11

hundred or so” methadone patients at the new facility. NDTS

providing treatment services to the residents of

center city Reading for the past 25 years.

Additionally, BCC has provided both transitional

(women and their children) and permanent

housing for persons with disabilities for the past

twelve years.

http://www.volunteersolutions.org/uwberks/org/220334.html.

Glen Cooper, the Executive Director of NDTS, referred to the

previous tenancy of the Berks Counseling Center at the same

location in his comments before the City Council:

The Berks Counseling Center was in the very

building that we are proposing to put this facility

in. They did exactly the same sort of work that

we do: drug addiction treatment, mental health

services.

***

We found what I think is a very good site where

formerly heroin addicts were treated. I mean, the

place that we’re proposing is a former–very

recently a former site for treating heroin addicts

and mentally ill people. We’re simply replacing

or proposing to replace the agency which left

there not too long ago, replace them with our own

facility. And, you know, there were no problems

when Berks Counseling Center was there that I’m

aware of. They treated the same kind of people

we treat. They were there for a long time.

12

proposed a 4,000 square foot addition to the property to

accommodate this increased usage. NDTS planned to operate

the new facility from 5:30 a.m. to 6:00 p.m. on weekdays, as

well as more limited hours on weekends.

In 1999, Pennsylvania adopted 53 PA. CONS. STAT. ANN.

§ 10621, a zoning statute regulating locations of methadone

treatment facilities.3 The statute provides that “a

3

The statute provides, in full, that:

(a)(1) Notwithstanding any other provision of law

to the contrary and except as provided in

subsection (b), a methadone treatment facility

shall not be established or operated within 500

feet of an existing school, public playground,

public park, residential housing area, child-care

facility, church, meetinghouse or other actual

place of regularly stated religious worship

established prior to the proposed methadone

treatment facility.

(2) The provisions of this subsection shall apply

whether or not an occupancy permit or certificate

of use has been issued to the owner or operator of

a methadone treatment facility for a location that

is within 500 feet of an existing school, public

playground, public park, residential housing area,

child-care facility, church, meetinghouse or other

actual place of regularly stated religious worship

13

established prior to the proposed methadone

treatment facility.

(b) Notwithstanding subsection (a), a methadone

treatment facility may be established and operated

closer than 500 feet to an existing school, public

playground, public park, residential housing area,

child-care facility, church, meetinghouse or other

actual place of regularly stated religious worship

established prior to the proposed methadone

treatment facility if, by majority vote, the

governing body for the municipality in which the

proposed methadone treatment facility is to be

located votes in favor of the issuance of an

occupancy permit or certificate of use for said

facility at such a location. At least 14 days prior to

the governing body of a municipality voting on

whether to approve the issuance of an occupancy

permit or certificate of use for a methadone

treatment facility at a location that is closer than

500 feet to a school, public playground, public

park, residential housing area, child-care facility,

church, meetinghouse or other actual place of

regularly stated religious worship established

prior to the proposed methadone treatment

facility, one or more public hearings regarding the

proposed methadone treatment facility location

shall be held within the municipality following

public notice. All owners of real property located

within 500 feet of the proposed location shall be

14

methadone treatment facility shall not be established or operated

within 500 feet of an existing school, public playground, public

park, residential housing area, child-care facility, church,

meetinghouse or other actual place of regularly stated religious

worship established prior to the proposed methadone treatment

facility,” unless, “by majority vote, the governing body for the

municipality in which the proposed methadone treatment facility

is to be located votes in favor of the issuance of an occupancy

permit.” Id. at § 10621(a)(1) and (b). The Lancaster Avenue

property falls within the ambit of the statute. When NDTS

inquired about sites not covered by the statute, a City zoning

official referred them to three sites, including a cemetery and a

heavy industrial area, all of which NDTS considered unsuitable.

provided written notice of said public hearings at

least 30 days prior to said public hearings

occurring.

(c) This section shall not apply to a methadone

treatment facility that is licensed by the

Department of Health prior to May 15, 1999.

(d) As used in this section, the term “methadone

treatment facility” shall mean a facility licensed

by the Department of Health to use the drug

methadone in the treatment, maintenance or

detoxification of persons.

53 PA. CONS. STAT. ANN. § 10621.

15

The City notified NDTS that it would hold a hearing on

January 14, 2002. Glen Cooper, the Executive Director of

NDTS, appeared at the hearing and described NDTS’s history

and its proposed treatment center. He also answered questions

from the City Council. NDTS acknowledged that it had

experienced some loitering and littering at its West Reading

facility. At a second hearing on February 28, 2002, the Council

heard additional public comments. At a March 25, 2002

Council meeting, the City heard more comments and then

unanimously voted against NDTS’s application.

NDTS filed complaints with the Pennsylvania Human

Relations Commission (“PHRC”) and the U.S. Department of

Housing and Urban Development’s Office of Fair Housing and

Equal Opportunity (“HUD”). The PHRC dismissed NDTS’s

complaint in a letter stating that, “the facts of the case [did] not

establish that probable cause exist[ed] to credit the allegations

of unlawful discrimination.” NDTS and several individual

plaintiffs proceeding in pseudonym filed suit in the United

States District Court for the Eastern District of Pennsylvania on

March 25, 2004.

The complaint states four counts. First, NDTS alleged

violations of the Fourteenth Amendment guarantees of Due

Process and Equal Protection, stating that the Pennsylvania

statute was unconstitutional on its face and as applied to the

proposed Reading facility. Second, NDTS alleged that the

statute, both facially and as applied, violates § 504 of the

Rehabilitation Act. 29 U.S.C. § 794. Third, NDTS alleged that

16

the statute, both facially and as applied, violates Title II of the

Americans with Disabilities Act (“ADA”). 42 U.S.C. § 12132.

Fourth, NDTS alleged that the statute, both facially and as

applied, contravenes the federal scheme for regulation of

methadone treatment and is therefore preempted. NDTS sought

declaratory and injunctive relief for harm resulting from the

City’s purportedly discriminatory action. Individual plaintiff

methadone users also sought damages.

The City moved on September 3, 2004 to dismiss

individual City officials on the grounds of common law

quasi-judicial immunity and qualified immunity. See FED. R.

CIV. P. 12(c). The District Court granted the motion on October

17, 2004. NDTS does not appeal this decision.

The City moved for partial summary judgment with

respect to the fourth count of the complaint, in which NDTS

argued on Supremacy Clause grounds that the statute was

preempted by federal law. The District Court granted the

motion and dismissed the fourth count on October 15, 2004.

NDTS does not appeal this decision.

NDTS and the individual plaintiffs filed the complaint as

a class action and moved to certify the class on September 27,

2004, as “all persons residing in the City of Reading and its

surrounding community who have been, are currently, or will be

at risk of being on the waiting list to receive methadone

treatment; and, all opiate-dependant residents of the City of

Reading and its surrounding community who have needed, now

17

need or in the future may need methadone treatment.” See FED.

R. CIV. P. 23(b)(2). The District Court denied the motion

without prejudice, reasoning that the Court lacked adequate

information to determine if the individual plaintiffs could

adequately represent the class.

The City moved for summary judgment. NDTS filed a

cross-motion for partial summary judgment on their claims

against the validity of the statute. The District Court granted the

City’s motion in its entirety and denied NDTS’s cross-motion on

August 22, 2005. NDTS timely appealed.

II. Discussion

The District Court had jurisdiction under 28 U.S.C. §

1331. We have jurisdiction over an appeal from the District

Court’s final order under 28 U.S.C. § 1291. We review the

grant of summary judgment de novo. Union Pac. R.R. v.

Greentree Transp. Trucking Co., 293 F.3d 120 (3d Cir. 2002).

This Court has conclusively settled that the proprietors of a

proposed methadone treatment facility have standing to seek

relief both on their own behalf and on behalf of their clients

under both the ADA and Rehabilitation Act. See Addiction

Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 405-08 (3d

Cir. 2005).

NDTS raises a myriad of issues on appeal. They argue

(1) that 53 PA. CONS. STAT. ANN. § 10621 facially violates the

Equal Protection Clause of the Fourteenth Amendment, the

18

ADA, and the Rehabilitation Act, (2) that the individual

plaintiffs have standing to make out ADA and Rehabilitation

Act challenges, (3) that the City violated the Equal Protection

Clause of the Fourteenth Amendment, the ADA, and the

Rehabilitation Act by denying NDTS a permit, and (4) that the

District Court abused its discretion by denying the motion for

class certification.

1. Whether 53 PA. CONS. STAT. ANN. § 10621 facially

violates the ADA and the Rehabilitation Act

NDTS and the individual plaintiffs argue that 53 PA.

CONS. STAT. ANN. § 10621 facially violates the Equal Protection

Clause of the Fourteenth Amendment, the ADA, and the

Rehabilitation Act. The District Court did not engage in a

detailed analysis of the statute’s validity under either Title II of

the ADA or the Rehabilitation Act. Rather, the Court focused

on the Equal Protection inquiry.4 However, these inquiries are

4

The District Court first analyzed the as applied and facial

challenges to the statute under the Equal Protection Clause. The

District Court held that these claims must fail because the City

had asserted rational reasons for the permit denial and in support

of the statute, including “substantial loitering and noise

problems . . . [and] increased vehicular and pedestrian traffic,

double parking, and repeated instances of patient jaywalking.”

The District Court then held that the Plaintiffs’ claims

under the ADA and Rehabilitation Act could not survive

summary judgment because “Plaintiffs must show that their

19

identity as heroin addicts or methadone users was the sole

reason for the City’s decision.” The City concedes that this

misstates our interpretation of the ADA, which requires that, “in

pretext cases a plaintiff need prove only that the illicit factor

‘played a role in the employer’s decisionmaking process and

that it had a determinative effect on the outcome of that

process.’” Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 158

(3d Cir. 1995) (citing Miller v. CIGNA Corp., 47 F.3d 586, 598

(3d Cir.1995)); see also Baird v. Rose, 192 F.3d 462, 468-70

(4th Cir. 1999) (specifically rejecting the sole cause test for

ADA claims).

The District Court appears to have overlooked that,

despite the fact that Congress has directed the courts to construe

the ADA and the Rehabilitation Act such that conflicting

standards do not arise, see Bragdon v. Abbott, 524 U.S. 624

(1998), the ADA and the Rehabilitation Act are not exactly the

same. The language of these two statutory provisions

“regarding the causative link between discrimination and

adverse action is significantly dissimilar.” Baird, 192 F.3d at

468. Section 504 of the Rehabilitation Act states that “[n]o

otherwise qualified individual with a disability . . . shall, solely

by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination” by specified entities. 29 U.S.C. § 794(a)

(emphasis added). However, the ADA prohibits discrimination

against an individual “by reason of such disability.” 42 U.S.C.

§ 12132 (emphasis added). We squarely held in Newman that

this language in the ADA clearly establishes that the “sole

reason” standard adopted by the District Court is inapplicable to

the ADA, which requires only but for causation. See 60 F.3d at

20

analytically distinct and must be approached accordingly.5

The principal difference between the equal protection and

the ADA inquiry is that, in an as applied or facial equal

protection challenge, the plaintiff bears the burden of negating

all conceivable rational justifications for the allegedly

discriminatory action or statute, Board of Trustees of the Univ.

of Alabama v. Garrett, 531 U.S. 356, 367 (2001), whereas to

make out a claim under the ADA, the plaintiff need only show

that intentional discrimination was the but for cause of the

allegedly discriminatory action. Newman v. GHS Osteopathic,

Inc., 60 F.3d 153, 157-58 (3d Cir. 1995).6 A facially

discriminatory statute based on a non-suspect class (such as 53

PA. CONS. STAT. ANN. § 10621) will survive an equal protection

challenge unless it is based on a bare desire to harm a politically

157-158.

5

We address the federal statutory challenges first, both

because they involve a less stringent standard and because we

have an obligation not to decide constitutional questions unless

necessary. See, e.g., Spector Motor Serv., Inc. v. McLaughlin,

323 U.S. 101, 105 (1944).

6

We noted in Newman that “courts addressing the allocations

of burdens of proof and persuasion under the ADA uniformly

have looked for guidance to Title VII.” 60 F.3d at 157. The

Supreme Court held in Price Waterhouse v. Hopkins, 490 U.S.

228 (1989), that, for Title VII cases, “because of” does not mean

“solely because of.” Id. at 241.

21

unpopular group or “a classification whose relationship to an

asserted goal is so attenuated as to render the distinction

arbitrary or irrational.” City of Cleburne v. Cleburne Living

Center, 473 U.S. 432, 446 (1985). A statute that facially

discriminates against disabled individuals, however, faces a far

different and more skeptical inquiry under the ADA and

Rehabilitation Act.

Section 12132 of Title II of the ADA provides that

“[s]ubject to the provisions of this subchapter, no qualified

individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. §

12132. This statement constitutes a general prohibition against

discrimination by public entities, regardless of activity.7 Bay

Area Addiction Research and Treatment, Inc. v. City of Antioch,

179 F.3d 725, 730-31 (9th Cir. 1999) (striking down a ban on

methadone clinics within 500 feet of a residential area). Section

504 of the Rehabilitation Act similarly provides that “[n]o

otherwise qualified individual with a disability . . . shall, solely

by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. § 794(a). We have noted that

7

The City of Reading is a qualifying public entity. See 42

U.S.C. § 12131(1)(A).

22

“[a]s the ADA simply expands the Rehabilitation Act’s

prohibitions against discrimination into the private sector,

Congress has directed that the two acts’ judicial and agency

standards be harmonized” and we will accordingly analyze the

two provisions together. Newman, 60 F.3d at 157-58; see also

Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37,

44 (2d Cir. 1997).

The Sixth and Ninth Circuits have considered the issue

of whether a municipal ordinance prohibiting methadone clinics

within 500 feet of a residential area violated the general

proscription contained in the ADA and Rehabilitation Act. See

MX Group, Inc. v. City of Covington, 293 F.3d 326, 342 (6th

Cir. 2002); Bay Area, 179 F.3d at 737. Both Courts concluded

that the ordinances were “facially discriminatory laws” and

therefore “present[ed] per se violations of § 12132.” Bay Area,

179 F.3d at 737; see MX Group, 293 F.3d at 342.8

8

One District Court struck down an ordinance functionally

identical to 53 PA. CONS. STAT. ANN. § 10621. Smith-Berch,

Inc. v. Baltimore County, Md., 115 F. Supp. 2d 520, 523 (D.

Md. 2000). That Court reasoned that a statute that facially

singled out methadone clinics imposed a disparate impact on

methadone users. Although we agree with the Sixth and Ninth

Circuits that such statutes are properly analyzed as facial

violations of the ADA and Rehabilitation Act, we nevertheless

concur with the Smith-Berch Court’s ultimate conclusion. The

District Court rejected the argument that a public hearing

requirement was necessary to the local zoning scheme. Id. at

23

The Ninth Circuit confronted many of the issues

presented in this case when the Bay Area Addiction Research

and Treatment, Inc. (“BAART”) and California Detoxification

Programs, Inc. (“CDP”) tried to relocate their methadone clinic

to the City of Antioch, California. Bay Area, 179 F.3d at 727.

BAART had been operating a methadone clinic near the

courthouse in Pittsburg, California for 13 years. BAART and

CDP received notice from Antioch that the proposed location

could be used for a methadone clinic under Antioch’s zoning

plan. However, the Antioch City Council enacted an urgency

ordinance banning methadone clinics within 500 feet of

residential areas, thereby barring use of the proposed site.

BAART and other plaintiffs alleged that Antioch had violated

both Title II of the ADA and § 504 of the Rehabilitation Act.

The District Court denied Bay Area’s motion for a preliminary

injunction enjoining the ordinance. BAART appealed. See id.

After disposing of issues not contested in the instant case,

the Ninth Circuit analyzed whether the District Court had

abused its discretion by denying the preliminary injunction in

part because BAART did not have a likelihood of success on the

merits. Id. at 733. The Ninth Circuit held that the District

Court had abused its discretion by applying an erroneous legal

standard and remanded the case. Id. The Ninth Circuit first

524. The Smith-Berch Court emphasized that there was no

non-discriminatory reason to differentiate methadone treatment

centers from other drug rehabilitation centers. Id.

24

held that the District Court erred by applying the “reasonable

modification” test to a facially discriminatory law. See id. at

734-35. U.S. Department of Justice regulations require that

would-be plaintiffs request reasonable modifications to avoid

discrimination unless the modification would fundamentally

alter the program, activity, ordinance, or statute. 28 C.F.R. §

35.130(b)(7). However, where the “statute discriminates against

qualified individuals on its face rather than in its application,”

the applicable regulation interpreting Title II, which only

requires “reasonable” accommodation, makes little sense. Bay

Area, 179 F.3d at 734. The only way to alter a facially

discriminatory ordinance is to remove the discriminating

language. The Antioch ordinance could only have been

“rendered facially neutral by expanding the class of entities that

may not operate within 500 feet of a residential neighborhood to

include all clinics at which medical services are provided, or by

striking the reference to methadone clinics entirely,” and,

“[e]ither modification would fundamentally alter the zoning

ordinance, the former by expanding the covered establishments

dramatically, and the latter by rendering the ordinance a nullity.”

Id. Therefore, the reasonable modifications test could not apply

to a facially discriminatory ordinance. See id. at 735 (holding

that “facially discriminatory laws present per se violations of §

12132”).

The Ninth Circuit noted that this determination does not

end the inquiry, however, as both statutes withhold protection

from any “individual who poses a significant risk to the health

or safety of others that cannot be ameliorated by means of a

25

reasonable modification.” Id. The Supreme Court developed

the significant risk test in School Board of Nassau County v.

Arline, a case involving a teacher who alleged a violation of §

504 of the Rehabilitation Act after she was discharged because

she had an active case of tuberculosis. 480 U.S. 273, 276

(1987). The Supreme Court held that “[a] person who poses a

significant risk of communicating an infectious disease to others

in the workplace will not be otherwise qualified for his or her

job if reasonable accommodation will not eliminate that risk.”

Id. at 287 n.16. The Court essentially incorporated a significant

risk test into the Rehabilitation Act’s definition of a disabled

person qualified to receive § 504’s protection. The Court noted

that this test effectuates § 504’s “goal of protecting handicapped

individuals from deprivations based on prejudice, stereotypes,

or unfounded fear, while giving appropriate weight to such

legitimate concerns . . . as avoiding exposing others to

significant health and safety risks.” Id. at 287.

Although the Ninth Circuit disclaimed any conclusion

about the outcome of this inquiry or the ultimate merits of the

claim, it repeatedly emphasized that Arline was designed to

“ensure[] that decisions are not made on the basis of ‘the

prejudiced attitudes or the ignorance of others,’” and that “[t]his

is particularly important because, as with individuals with

contagious diseases, ‘[f]ew aspects of a handicap give rise to the

same level of public fear and misapprehension,’ as the

challenges facing recovering drug addicts.” Bay Area, 179 F.3d

at 736 (internal citations omitted) (citing Arline, 480 U.S. at

284). The Ninth Circuit held that, in order for a methadone

26

clinic to fail the significant risk test, it must present “severe and

likely harms to the community that are directly associated with

the operation of the methadone clinic.” Id. at 736-37. Such

alleged harms must be supported by evidence and “may include

a reasonable likelihood of a significant increase in crime.” Id.

The Ninth Circuit noted that courts should be mindful of the

ADA and Rehabilitation Act’s goals of eliminating

discrimination against individuals with disabilities and

protecting those individuals “from deprivations based on

prejudice, stereotypes, or unfounded fear.” Id. at 737 (citing

Arline, 480 U.S. at 287). Therefore, “it is not enough that

individuals pose a hypothetical or presumed risk”–the evidence

must reflect a risk that is significant and harm that is serious. Id.

Three years later, the Sixth Circuit invoked Bay Area and

reached a similar result in MX Group v. City of Covington. 293

F.3d 326, 344-45 (6th Cir. 2002). MX Group is a for-profit

operator of methadone clinics. Id. at 328-29. In 1997, they

began the process of locating a suitable site for a methadone

clinic in Covington, Kentucky. MX Group selected a location

and Covington’s zoning administrator issued them a permit.

Public outcry spurred the Covington Board of Adjustment to

overrule the issuance of the permit. MX Group located another

suitable site, prompting the city solicitor to inform the zoning

administrator that methadone clinics were not a permitted use

anywhere in the city. Shortly thereafter, Covington adopted an

amendment to the zoning code expanding the definition of

“addiction treatment facility” in the zoning code to include any

place whose primary function is to care for the chemically

27

dependent. This term had applied only to programs that

provided overnight or housing accommodations. The ordinance

limited the number of all such facilities to one facility for every

20,000 persons in the city. This amendment prevented MX

Group from locating a facility in the city. Id. at 330-31.

However, the zoning administrator testified at trial that it was

his impression from the city solicitor that amendments

permitting individual clinics would be considered on a case-by-

case basis. Id. at 331. MX Group brought suit pursuant to the

ADA and Rehabilitation Act. The District Court held that

Covington’s denial of the permit and the subsequently enacted

amendment violated both federal statutes. Id. at 328.

Covington alleged that the District Court had committed

various errors of law, of which only one is relevant

here–whether the District Court correctly concluded that MX

Group was not required to request a reasonable modification.

Id. at 334. The Sixth Circuit cited Bay Area approvingly and

rejected the “reasonable accommodation argument because it is

inapplicable inasmuch as the ordinance at issue is facially

discriminatory.” Id. The Sixth Circuit noted that “the district

court found that the blanket prohibition of all methadone clinics

from the entire city is discriminatory on its face,” agreed with

that conclusion, and also agreed with the Ninth Circuit “that it

would make little sense under these circumstances to require

Plaintiff to seek an accommodation, when the only

accommodation, a fundamental change to the ordinance, could

not be considered reasonable.” Id. at 335.

28

Although Bay Area and MX Group dealt with outright

bans, we believe that the reasoning of those cases is equally

applicable here. The Pennsylvania statute imposes a ban on the

establishment of methadone clinics within 500 feet of many

structures, including schools, churches, and residential housing

developments. See 53 PA. CONS. STAT. ANN. § 10621(a)(1).

The Pennsylvania law differs from those in Bay Area and MX

Group in that the “the governing body for the municipality in

which the proposed methadone treatment facility is to be

located” can waive the ban if, and only if, it approves the

issuance of a permit by majority vote. 53 PA. CONS. STAT. ANN.

§ 10621(b). However, this ability of municipalities to waive the

statutory ban in no way alters the fact that 53 PA. CONS. STAT.

ANN. § 10621 facially singles out methadone clinics, and

thereby methadone patients, for different treatment, thereby

rendering the statute facially discriminatory.

We agree with the Sixth and Ninth Circuits that a law that

singles out methadone clinics for different zoning procedures is

facially discriminatory under the ADA and the Rehabilitation

Act. We also agree that it is inappropriate to apply the

“reasonable modification” test to facially discriminatory laws.

See MX Group, 293 F.3d at 344-45; Bay Area, 179 F.3d at 734-

35. The only way to modify a facially discriminatory statute is

to remove the discriminatory language. However, amending 53

PA. CONS. STAT. ANN. § 10621 to remove the facial

discrimination against methadone clinics would “fundamentally

alter” the statute. Bay Area, 179 F.3d at 734.

29

Having concluded that 53 PA. CONS. STAT. ANN. § 10621

is facially discriminatory and that the reasonable modification

test does not apply, we proceed to inquire whether NDTS’s

clients pose a significant risk. This inquiry is also referred to as

the “direct threat” defense in cases arising under Title I of the

ADA. Bragdon v. Abbott, 524 U.S. 624, 662 (1998) (Stevens,

J., concurring). The Court’s analysis of the Rehabilitation Act

in Arline remains the guiding precedent. See Arline, 480 U.S.

at 278-79. The Court concluded that contagious diseases such

as tuberculosis fit within the Rehabilitation Act’s definition of

“handicapped,” and then addressed the question of whether the

plaintiff was otherwise qualified for her job as an elementary

school teacher. Id. at 279. The Court held that “[a] person who

poses a significant risk of communicating an infectious disease

to others in the workplace will not be otherwise qualified for his

or her job if reasonable accommodation will not eliminate that

risk.” Id. at 287 n.16. The Court adopted the language

proposed by amicus curiae the American Medical Association,

stating the significant risk inquiry should include consideration

of four factors: the nature of the risk, the duration of the risk, the

severity of the risk, and the probability that the potential harm

will occur. Donahue v. Consol. Rail Corp., 224 F.3d 226, 231

(3d Cir. 2000) (citing Arline, 480 U.S. at 288).

The Arline Court limited its decision to cases where a

significant risk is alleged on the basis of an infectious disease.

See 480 U.S. at 289. The ADA and subsequent cases expanded

the significant risk test to cases where a disability created a

significant risk to the health or safety of others, such as attention

30

deficit hyperactive disorder, see Robertson v. Neuromedical

Ctr., 161 F.3d 292, 295-96 (5th Cir. 1998), depression, see

EEOC v. Amego, Inc., 110 F.3d. 135, 143-45 (1st Cir. 1997),

diabetes, see Turco v. Hoechst Celanese Corp., 101 F.3d 1090,

1094 (5th Cir. 1996) , violent employees, see Palmer v. Cir. Ct.

of Cook County, 117 F.3d 351, 353 (7th Cir. 1997), or epileptics

whose jobs involve operating potentially dangerous machinery.

See Donahue, 224 F.3d at 231.

The Supreme Court emphasized in Bragdon v. Abbott

that the significant risk test requires a rigorous objective inquiry.

524 U.S. 624, 626 (1998). In Bragdon, a dentist refused to fill

a cavity for an asymptomatic AIDS patient. See id. The Court

held that:

The existence, or nonexistence, of a significant

risk must be determined from the standpoint of

the person who refuses the treatment or

accommodation, and the risk of assessment must

be based on medical or other objective evidence.

. . . As a health care professional, petitioner had

the duty to assess the risk of infection based on

the objective, scientific information available to

him and others in his profession. His belief that

a significant risk existed, even if maintained in

good faith, would not relieve him of liability.

Id. at 649. Accordingly, we cannot base our decision on the

subjective judgments of the people purportedly at risk, the

Reading residents, City Council, or even Pennsylvania citizens,

31

but must look to objective evidence in the record of any dangers

posed by methadone clinics and patients. The purported risk

must be substantial, not speculative or remote. See id. at 649

(“Because few, if any, activities in life are risk free, Arline and

the ADA do not ask whether a risk exists, but whether it is

significant.”). The Plaintiffs are not required to show that they

pose no risk at all.9 See id.

9

Although the concept of significant risk has been much more

fully considered in the Title I context, courts have not come to

an agreement in either Title I or Title II cases as to where the

burden lies. Some courts have held that whether there is a

significant risk is a factor in whether a plaintiff is “qualified”

within the meaning of the statute. These courts conclude that

the plaintiff bears the burden of demonstrating that they do not

pose a significant risk. See Rizzo v. Children’s World Learning

Ctrs., Inc., 213 F.3d 209, 213 (5th Cir. 2000); EEOC v. Amego,

Inc., 110 F.3d 135, 142-44 (1st Cir. 1997). Other courts view

“direct threat” as an affirmative defense. These courts reason

that the burden is on the defendant to show that the plaintiff

poses a significant risk. These courts note that the direct threat

provision appears in a section of Title I entitled “Defenses.” See

Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247-48 (9th

Cir. 1999); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276,

1283-85 (7th Cir. 1995).

We have previously reserved judgment on this issue

when it was “unnecessary to decide this question,” and do so

again in this case as it would not affect our holding. Donahue

v. Consolidated Rail Corp., 224 F.3d 226, 230 (3d Cir. 2000).

32

The record contains ample evidence that NDTS’s clients,

and methadone patients as a class, do not pose a significant risk.

Neither the City nor its amicus, the Commonwealth, have

offered any evidence to the contrary. The City refers to the

deposition of Glen Cooper, the Executive Director of NDTS, in

which he estimated that 20 to 30 percent of the clinic’s patients

would test positive for illegal drugs. However, NDTS also

submitted the results of drug screens at its West Reading and

Bethlehem clinics showing that only patients enrolled for less

than six months test positive at the 30 percent rate, whereas less

than six percent of patients enrolled for more than six months

test positive for illegal drugs.

More importantly, the record demonstrates no link

between methadone clinics and increased crime. Cooper

testified that there had been no criminal incidents at NDTS’s

West Reading facility. The Commonwealth offered no evidence

to support its contrary assertion that there is a “frequent

association” between methadone clinics and criminal activity.

In depositions, City Council members expressed concerns about

heavy traffic, loitering, noise pollution, littering, double parking,

and jaywalking. However, the City offered no evidence to

support an association between these concerns and methadone

clinics. Even if such connections existed, we are skeptical that

they would qualify as the substantial harms contemplated by the

Arline and Bragdon Courts.

The brief legislative history of 53 PA. CONS. STAT. ANN.

§ 10621 provides no further evidence that methadone patients

33

pose a significant risk. Representative Platts, the bill’s principal

sponsor, stated that the legislation would protect “children from

the high crime rates associated with heroin addicts,” that, “[o]n

average heroin addicts before treatment commit a crime on

average 200 days of the year,” and that “[e]ven after 6 months

of methadone treatment, they still average once a month

committing a crime.” Representative Platts offered no source

for this statistic. We find it difficult to place much weight on

this unsupported statistic given Cooper’s unrebutted testimony

that other NDTS facilities had experienced no criminal incidents

and the extremely positive reports of the National Institute on

Drug Abuse and the Office of National Drug Control Policy. In

addition, the statement of Representative Serafini betrays the

generalized prejudice and fear warned against by the Arline

Court:

It is unfortunate that we have to have methadone

treatment facilities at all, but to locate them in

areas that are residential or close to where young

people might congregate or the community might

meet and gather is a definite mistake, and these

facilities, in my opinion, do not benefit anyone

but the heroin addict, and they should be located

either in a community that welcomes this kind of

facility or out in an area away from people who

have kept themselves clean and free of drugs and

should not be confronted by this kind of a

pollution in their community.

On one hand, we have before us uncontroverted

34

testimony that NDTS’s methadone treatment facilities have not

experienced any criminal incidents or other potentially

dangerous behavior. We have the objective viewpoints of the

National Institute on Drug Abuse and the Office of National

Drug Control Policy, brought to our attention by amicus curiae,

the Pennsylvania Community Providers Association. On the

other hand, neither the City nor amicus, the Commonwealth of

Pennsylvania, offered any evidence in the proceedings below or

in the statute’s legislative history demonstrating that methadone

patients pose a significant risk. The Arline Court specifically

recognized that the Rehabilitation Act was meant to protect

disabled individuals “from deprivations based on prejudice,

stereotypes, or unfounded fear.” 480 U.S. at 287; see also

Innovative Health, 117 F.3d at 49. The speculative,

hypothetical, and unsupported statements in 53 PA. CONS. STAT.

ANN. § 10621’s legislative history and in the record of the

Reading City Council meeting do not suffice to create a triable

issue of fact as to whether NDTS’s clients, or methadone

patients generally, pose a significant risk.

We have no doubt that some methadone patients are

inclined to criminal or otherwise dangerous behavior. However,

in the words of the Arline Court:

The fact that some persons who have contagious

diseases may pose a serious health threat to others

under certain circumstances does not justify

excluding from the coverage of the Act all

persons with actual or perceived contagious

35

diseases. Such exclusion would mean that those

accused of being contagious would never have the

opportunity to have their condition evaluated in

light of medical evidence and a determination

made as to whether they were “otherwise

qualified.” Rather, they would be vulnerable to

discrimination on the basis of

mythology–precisely the type of injury Congress

sought to prevent.

480 U.S. at 285.

We will reverse the order of the District Court and

remand with instructions that it grant NDTS’s motion for partial

summary judgment because 53 PA. CONS. STAT. ANN. § 10621

facially violates the ADA and the Rehabilitation Act. We need

not reach the question of whether 53 PA. CONS. STAT. ANN. §

10621 facially violates the Equal Protection Clause of the

Fourteenth Amendment, as the statute fails the less stringent

tests required by the ADA and the Rehabilitation Act.10

10

Plaintiffs argued before the District Court that § 504 of the

Rehabilitation Act and Title II of the ADA preempt 53 PA.

CONS. STAT. ANN. § 10621. As Plaintiffs do not argue this issue

on appeal, it is waived.

36

2. Whether the individual plaintiffs have standing to

make out ADA and Rehabilitation Act challenges

The Pennsylvania statute is facially invalid under the

ADA and the Rehabilitation Act. Because of that, the individual

plaintiffs’ standing has no impact on the issue of injunctive

relief. However, the individual plaintiffs also assert claims to

damages under the ADA and the Rehabilitation Act. The

District Court must reach the issue of the individual plaintiffs’

standing in order to resolve their claims for damages.11

11

We recognized in Addiction Specialists, Inc. v. Township of

Hampton that methadone clinic providers may assert both direct

standing based on their own injuries and associational standing

based on injuries to the disabled individuals they serve. See 411

F.3d 399, 407 (3d Cir. 2005). A third-party may only assert

claims based on the injuries of others to the extent that those

who suffered the direct harm would themselves have standing

to sue. See Hunt v. Washington State Apple Adver. Comm’n.,

432 U.S. 333, 343 (1977). Third-party standing is closely

related to facial challenges, in which a single party asserts that

a law is invalid not only as applied to them, but as applied to all

parties that might come before the court. See Broadrick v.

Oklahoma, 413 U.S. 601, 610-11 (1973) (“Embedded in the

traditional rules governing constitutional adjudication is the

principle that a person to whom a statute may constitutionally be

applied will not be heard to challenge that statute on the ground

that it may conceivably be applied unconstitutionally to others,

in other situations not before the Court. A closely related

principle is that constitutional rights are personal and may not be

37

asserted vicariously.” (internal citations omitted)); United States

v. Raines, 362 U.S. 17, 21 (1960). But see Richard H. Fallon,

As-Applied and Facial Challenges and Third-Party Standing,

113 HARV. L. REV. 1321, 1359-64 (2000) (examining the

differences between facial challenges and third-party standing).

Therefore, every individual plaintiff harmed by the

application of the Pennsylvania statute is not necessarily entitled

to damages by virtue of NDTS’s successful demonstration that

the statute facially violates the ADA and Rehabilitation Act.

Individual plaintiffs may have suffered a harm because the ease

or timeliness of their methadone treatment was compromised by

operation of the invalid statute. However, if they are current

users of illegal drugs, their statutory rights under the ADA and

Rehabilitation Act have not been invaded–indeed, current users

of illegal drugs are entirely exempted from the ambit of the

statute when the allegedly discriminatory action was taken on

the basis of that illegal drug use. See 42 U.S.C. § 12210(a); 29

U.S.C. § 705(20)(C)(i). Neither NDTS’s associational standing

nor its facial challenge can secure damages for individual

plaintiffs when they themselves have not suffered a violation of

their rights and lack standing. Therefore, the District Court

should consider the individual plaintiffs’ standing under the

ADA and Rehabilitation Act and, if the District Court finds that

some of the individual plaintiffs lack standing, it should proceed

to their as-applied equal protection challenge.

The fact that some plaintiffs were not harmed under the

ADA and Rehabilitation Act does not necessarily support the

facial validity of the Pennsylvania statute. If the Pennsylvania

General Assembly had passed a statute regulating only current

illegal drug users, then the ADA and Rehabilitation Act could

38

The parties do not dispute that recovering heroin addicts

are presumptively “qualified” persons under the ADA and

Rehabilitation Act. See 42 U.S.C. § 12131; 29 U.S.C. § 794(a).

However, both the ADA and the Rehabilitation Act contain

carve-outs stating that individuals are not deemed “qualified” if

they are “currently engaging in the illegal use of drugs” when

the “covered entity [the City] acts on the basis of” the plaintiff’s

drug addiction. See 42 U.S.C. § 12210(a); 29 U.S.C. §

705(20)(C)(i). Plaintiffs are not considered “qualified” under

the statutes if they have used illegal drugs “recently enough so

that continuing use is a real ongoing problem.” Brown v. Lucky

Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001). This statutory

exception is an odd fit for the instant case. It was intended to

ensure that employers could discharge employees who were

actually under the influence while at work and that employers

could not discharge employees who were recovering addicts but

were, at the time of any personnel action, drug free. See id.

(quoting H.R. REP. NO. 101-596, at 62 (1990) (Conf. Rep.)).

This provision makes its first appearance at 42 U.S.C. §

12114(a), where it applies to Subchapter I of the ADA,

concerning employment. However, this provision reappears

not be offended if a covered entity took action based on that

drug use. However, the record makes clear that methadone

clinics serve a combination of current and rehabilitated drug

users.

39

verbatim in “Subchapter IV: Miscellaneous Provisions,” which

makes it applicable to the entire ADA. This perplexing

draftsmanship, which appears to make surplusage of the

provision in the employment section, mandates that we apply

this provision to Subchapter II, 42 U.S.C. § 12210(a)–even

though it is unclear how the provision should apply outside the

employment context.

First, NDTS contends that the appropriate time frame for

this inquiry is 2004, when it filed the complaint in the District

Court, similar to a traditional standing analysis. The City

responds that the statutory text specifies that the relevant time

frame is when the covered entity took its allegedly

discriminatory action. We agree with the City inasmuch as both

the ADA and Rehabilitation Act both state that an individual

does not enjoy these statutory protections if “currently engaging

in the illegal use of drugs, when the covered entity acts on the

basis of such use.” 42 U.S.C. § 12210(a); see 29 U.S.C. §

705(20)(C)(i) (same).

Less clear is the question of whether the City “acted on

the basis of” the individual plaintiffs’ addictions. See 42 U.S.C.

§ 12210(a); 29 U.S.C. § 705(20)(C)(i). The City asserts that it

acted on the basis of non-discriminatory reasons, such as traffic

and loitering. NDTS contends that the City acted on the basis

of general fear and prejudice associated with recovering heroin

addicts. NDTS wants to have its cake and eat it too. It claims

that the City’s allegedly discriminatory motive does not

constitute action on the basis of a drug addiction, but action

40

against recovering addicts. However, much of the evidence in

the record to which NDTS refers illustrates the City’s concern

about the possibility of NDTS’s clients relapsing into drug use.

The ADA and Rehabilitation Act specifically provide that

a person who has completed a supervised rehabilitation program

or is currently participating in such a program and “is no longer

engaging” in drug use shall be deemed a qualified individual.

42 U.S.C. § 12210(a) and (b)(1); 29 U.S.C. § 705(20)(C)(i) and

(C)(ii)(I). The Ninth Circuit has observed that “[m]ere

participation in a rehabilitation program is not enough,” and that

covered entities “are entitled to seek reasonable assurances that

no illegal use of drugs is occurring.” Brown, 246 F.3d at 1188.

These statutory qualifications weigh against the logic of

deeming the City to have acted solely on the basis of the

plaintiffs’ status as recovering addicts–even if we accept

NDTS’s version of the City’s motivation.

The Second Circuit has recognized that the question of

whether drug use is effectively ongoing or a serious problem is

a fact bound inquiry best left to the district courts. Teahan v.

Metro-North Commuter R.R. Co., 951 F.2d 511, 518-20 (2d Cir.

1991). This determination requires detailed knowledge of

methadone treatment protocols to assess whether a currently

enrolled methadone patient who relapsed, for example, three

months ago, is likely to relapse again. The parties do not

dispute that one plaintiff, Coe, has been drug free for some time.

However, three other plaintiffs, Joe, Loe, and Poe, had been

drug free for only three months prior to the permit denial. Id.

41

We will remand with instructions that the District Court closely

consider whether the individual plaintiffs’ drug use posed a “real

ongoing problem.” Brown, 246 F.3d at 1188.

3. Whether the City violated the Fourteenth

Amendment’s guarantee of Equal Protection

The District Court should also consider NDTS’s as

applied challenge under the Equal Protection Clause of the

Fourteenth Amendment if it finds that any of the individual

plaintiffs lack standing under the ADA and the Rehabilitation

Act. NDTS alleges the City improperly administered 53 PA.

CONS. STAT. ANN. § 10621 as applied to their permit application

for the Reading facility. The City replies that NDTS failed to

show that prejudice was a motivating factor and, in the

alternative, that the City met its burden of demonstrating a

legitimate, non-discriminatory purpose.

The parties agree that classifications based on disabled

individuals, such as recovering heroin addicts, are reviewed

under the rational basis test which requires a rational means to

serve a legitimate end. City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 450 (1985) (holding that the decision to refuse a

permit to a home for the “mentally retarded” failed the rational

basis test). Yet the City asserts that Cleburne “is distinguishable

because unlike [NDTS], the Appellants [in Cleburne] had

presented evidence that the decision to deny the special use

permit for homes for the mentally retarded was based on mere

negative attitudes and fear that was unsubstantiated by factors

42

which are properly cognizable.” NDTS has adduced evidence

of a similar character. The records of the City Council hearings

contain numerous statements by both public participants and

council members expressing opposition based on what can only

be characterized as generalized prejudice, stereotypes, and fear

of NDTS’s clientele.12

12

The records of the three City Council hearings are replete

with statements by participants illustrating the atmosphere of

prejudice and fear that permeated the proceedings. Participants

stated that the new NDTS facility would “compromise the

quality of life for children and families residing in this area,”

would disrupt “this stable, residential area,” would “further

decline the quality of life opportunities for families residing in

the area,” would “break [the] community spirit,” would “have a

detrimental effect on the family spirit of the neighborhood

community,” would “have a detrimental effect on the

neighborhood and community businesses,” and might “require

additional police patrol.” One participant opined that “the

community would not be able to face the additional stress

brought by the treatment facility.” Another participant observed

that:

[T]he overall community opposes the location of

the clinic on Lancaster Avenue. The community

believes that the location of the clinic in this area

will destroy neighborhood and family standards.

[The community wants the] Council to recognize

the effect this clinic will have on their community

and property values. . . . [I]f existing hospitals

43

will not accept the clinic as a tenant, the medical

profession may not believe in this type of

treatment.

An attorney representing “citizens of the Millmont area,”

engaged in an extended colloquy with Glen Cooper, Executive

Director of NDTS, at the initial City Council hearing on January

14, 2002:

Attorney questions (Q): What do you tell

the neighborhood that you’re moving in, a

community that you didn’t investigate, the

neighbors you didn’t see, the residents whose

property values may or may not be affected?

What do you give them to suggest in some way

their kids aren’t going to be affected, their

property is not going to be affected? How do you

explain that to them?

Cooper answers (A): Explain what?

Q: Whether or not they will or will not be

affected, their property values, if their kids will be

involved with heroin addicts or ex-addicts or

methadone addicts.

A: I don’t offer an explanation. I don’t

see that that’s been an issue. It’s never been an

issue. . . . Do you have any evidence that that’s

an issue?

Q: I suspect that common sense would tell

anybody that they’re not going to purchase a

house next to a methadone clinic with heroin

44

addicts.

A: I’m talking about children being

involved. You raised the question about children

being involved. Do you have any evidence? Do

you have an example?

Q: That children will be–children will be

within 500 feet.

A: That wasn’t my question. My question

was, Do you have evidence that that is a typical

problem in relationship to methadone treatment

facilities?

Q: I have a daughter, and I don’t want her

near a methadone clinic.

A: So, you don’t have any evidence.

Q: I do have personal evidence. I don’t

want my 10-year-old daughter at a methadone

clinic or within 500 feet of a methadone clinic, if

I can help it. And if I lived next to there, I would

move.

A: Well, you don’t have any reason to

believe, any statistical reason to believe, that that

would be a problem. You just have a gut feeling

that you wouldn’t like it.

Q: I’d use common sense.

City Council member Waltman stated “that this method

of treatment condones addiction,” and that “the City should be

considering a Police substation for this area rather than a

methadone clinic that will compromise the stability of the

community.” City Council member Kerns claimed that “the

45

We have suggested, albeit in a different context, that a

factually similar claim would have a likelihood of success. See

Sullivan v. City of Pittsburgh, 811 F.2d 171, 185 (3d Cir. 1987).

We considered in Sullivan a request by recovering alcoholics for

a preliminary injunction requiring issuance of a permit for the

operation of a treatment center for alcoholics. Id. The Sullivan

Court observed that:

Appellees showed that the City’s alleged concern

about a drop in property values was irrational

since ARC [the operator of the treatment centers]

had operated in the neighborhood for some years

and adduced evidence indicating that property

values would not be adversely affected by the

Center’s presence. Appellees also established that

the City’s alleged concern with orderly

development was irrational since ARC was

already located in the North Side Section.

Additionally, appellees demonstrated that ARC

facilities met lot size and other zoning

requirements and that the City’s alleged concerns

about density were addressed by density

ordinances with which ARC had complied. And

finally, here as in Cleburne, appellees

demonstrated that the City took its essentially

potential damage a clinic could do that would break the

community spirit.”

46

unjustified action in an atmosphere charged with

hostility towards a minority group. These proofs,

and their lack of contradiction by the City, lead us

to conclude that, in light of Cleburne, class action

plaintiffs-appellees are likely to prevail on the

merits of their Equal Protection claim.

Id. (likening the recovering alcoholics’ claim to that made in

Cleburne).

The City claims that it met its burden of showing

legitimate purposes motivating its decision. The District Court

observed that the City Council expressed concerns about heavy

traffic, loitering, noise pollution, littering, double parking, and

jaywalking. Yet we consider it inexplicable that the City failed

to offer any evidence to support these concerns. Indeed, the

District Court appears to have relied on depositions of the

Council members which are not supported by the records of the

three City Council meetings. Records of these meetings contain

no reference by the Council members to jaywalking, loitering,

littering, double parking, or increased traffic. The only

reference appears in Cooper’s response to Council member

Figueroa’s general question about “problem[s] with citizens of

West Reading,” to which he responded that loitering and

littering problems at its West Reading facility were minimal.

The concern raised by Council member Reed in her deposition

about double parking does not account for NDTS’s statement

that the new facility would have 20 off-street parking spaces.

47

The able District Judge also failed to adequately consider

whether any of these asserted legitimate concerns differentiated

the proposed NDTS facility from permitted uses of the 700

Lancaster Avenue site. See Cleburne, 473 U.S. at 448 (holding

that the City of Cleburne could not treat the facility for the

mentally retarded differently “unless [it] would threaten

legitimate interests of the city in a way that other permitted uses

such as boarding houses and hospitals would not”). On remand,

the District Court should consider whether asserted legitimate

purposes apply equally to permitted uses when deciding whether

the purported legitimate purposes are pre-textual. Id. The

Lancaster Avenue site is zoned commercial highway and

therefore includes among its permitted uses gas stations, beer

distributors, convenience stores, emergency health care

facilities, motels, nightclubs, and miniature golf courses. The

prior occupant, the Berks Counseling Center, treated recovering

drug and alcohol addicts as well as mentally ill patients. The

record contains no evidence of complaints from nearby

residents. The District Court should focus particularly on

whether there is any rational reason to differentiate methadone

treatment centers, such as those operated by NDTS, from non-

methadone drug treatment centers, such as the Berks Counseling

Center.

A reasonable trier of fact could conclude, on the present

record, that no “reasonably conceivable state of facts . . . could

provide a rational basis” for denying NDTS’s requested permit.

Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367

(2001). What is presented, then, is a triable issue of material

48

fact.

4. Whether the District Court abused it discretion by

denying the motion for class certification.

NDTS argues that the District Court abused its discretion

by denying without prejudice their motion for class certification.

The District Court’s only stated reason was that NDTS had

failed to “provid[e] Defendant with the information necessary

for Defendant to determine whether the named class

representatives can represent the class adequately.” It is not

clear what further information is required, as NDTS responded

to all the City’s requests for information on the named plaintiffs,

including their identities.13

The named plaintiffs bear the burden of showing class

eligibility and failed to file affidavits specifically in support of

their motion for class certification. However, the District

Court’s denial of class certification does not provide sufficient

information for us to engage in meaningful appellate review.

We have held that “[a]dequate representation depends on two

factors: (a) the plaintiff’s attorney must be qualified,

experienced, and generally able to conduct the proposed

13

The District Court granted the individual plaintiffs’ motion

to proceed in pseudonym on the same day it denied their motion

for class certification. The District Court required only that the

Defendant’s counsel receive the individual plaintiffs’ full

names, which was duly done.

49

litigation, and (b) the plaintiff must not have interests

antagonistic to those of the class.” Wetzel v. Liberty Mut. Ins.

Co., 508 F.2d 239, 247 (3d Cir. 1975).

The City does not dispute that Plaintiffs’ counsel are able

to handle the litigation, supporting the conclusion that the class

would be adequately represented. See Grasty v. Amalgamated

Clothing & Textile Workers Union, etc., 828 F.2d 123, 129 (3d

Cir. 1987) (noting that “the assurance of vigorous prosecution”

by class counsel is a “significant factor” in the Rule 23(a)(4)

analysis); Greenfield v. Villager Industries, Inc., 483 F.2d 824,

832 (3d Cir. 1973) (“Experience teaches that it is counsel for the

class representative, and not the named parties, who direct and

manage these actions.”).

The record is sufficiently developed to support the

conclusion that the named plaintiffs could adequately represent

the class. Rule 23(a)(4)’s requirement that a class representative

“fairly and adequately protect the interests of the class” mainly

seeks “to uncover conflicts of interest between named parties

and the class they seek to represent.” In re Warfarin Sodium

Antitrust Litig., 391 F.3d 516, 532 (3d Cir. 2004); see FED. R.

CIV. P. 23(a)(4). A class representative need only possess “a

minimal degree of knowledge necessary to meet the adequacy

standard.” Szczubelek v. Cendant Mortgage Corp., 215 F.R.D.

107, 119 (D.N.J. 2003). Conflicts of interest are rare in Rule

23(b)(2) class actions seeking only declaratory and injunctive

50

relief.14 See FED. R. CIV. P. 23(b)(2). Further discovery is

unlikely to reveal any actual or potential conflict. The parties do

not dispute that all of the class representatives’ records were

produced.

We are unable to perceive from the record or the briefs

what additional information might be required to establish that

there is no conflict of interest between the named individual

plaintiffs and the other members of the putative class. However,

the District Court did not rule on the other Rule 23(a) factors,

numerosity, commonality, and typicality. Accordingly, we will

vacate the District Court’s order denying the motion for class

certification.

III. Conclusion

Neither the record nor the legislative history of 53 PA.

CONS. STAT. ANN. § 10621 contain any evidence that would

preserve the statute against the guarantees provided by the ADA

14

The City argues that there is doubt about whether the

named plaintiffs can adequately represent the class because their

claims for damages “predominate” over their request for

injunctive relief. See Allison v. Citgo Petroleum Corp., 151

F.3d 402, 413 (5th Cir. 1998). However, the individual

plaintiffs seek damages only for themselves, and therefore they

do not implicate possible future claims for damages by other

members of the class. Accordingly, the City’s argument on this

point lacks merit.

51

and the Rehabilitation Act. We will reverse the judgment of the

District Court denying summary judgment for NDTS with

respect to the claim that 53 PA. CONS. STAT. ANN. § 10621

facially violates these federal statutes and remand for further

proceedings consistent with this opinion.

52