Petition for Writ of Certiorari — City of Costa Mesa, California, Petitioner v. SoCal Recovery, LLC, et al.
Supreme Court briefJul 21, 2023
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No. _______
In the
Supreme Court of the United States
____________________
CITY OF COSTA MESA
Petitioner,
v.
SOCAL RECOVERY, LLC, ET AL.,
____________________
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals for
the Ninth Circuit
____________________
PETITION FOR A WRIT OF CERTIORARI
____________________
KIMBERLY HALL BARLOW
JONES MAYER
3777 N. Harbor Boulevard
Fullerton, CA 92835
MARY-CHRISTINE SUNGAILA
Counsel of Record
CHARLES KAGAY
COMPLEX APPELLATE
LITIGATION GROUP LLP
SEYMOUR B. EVERETT
620 Newport Center Drive
CHRISTOPHER D. LEE
Suite 1100
Newport Beach, CA 92660
EVERETT DOREY LLP
18300 Von Karman Avenue (949) 991-1900
Suite 900
mc.sungaila@calg.com
Irvine, CA 92612
Attorneys for Petitioner
QUESTIONS PRESENTED
1. The Americans with Disabilities Act of 1990 (42
U.S.C. § 12101 et seq.) and Fair Housing Act (42
U.S.C. § 3601 et seq.) define “disability” as an impairment that substantially limits one or more major life
activities. This Court’s precedent* requires a natural
person suing for disability discrimination to make an
individualized showing of substantial limitation.
Can entities such as group homes, which derive
their standing to sue from the disability of their residents, forego proving that their individual residents
are substantially impaired and thereby disabled, even
though their residents would have to make such a
showing if they had brought the discrimination claims
directly themselves?
2. The Americans with Disabilities Act and Fair
Housing Act also define disability as “being regarded”
as having a physical or mental impairment.
Can public comments made to a governmental entity be used to show that the entity regarded individuals as disabled, even when the entity did not adopt
or approve the particular comments?
* Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999),
superseded by statute on other grounds, ADA Amendments Act
of 2008, Pub. L. No. 110-325, 122 Stat. 3553.
ii
PARTIES TO THE PROCEEDING
Petitioner City of Costa Mesa is a California municipality that was the defendant in the district court
and the appellee in the court of appeals.
Respondents SoCal Recovery, LLC, and RAW Recovery, LLC, are California limited liability companies that were the plaintiffs in the district court and
the appellants in the court of appeals.
RELATED PROCEEDINGS
United States District Court (C.D. Cal.):
SoCal Recovery, LLC v. City of Costa Mesa,
No. 18-cv-1304 (Apr. 10, 2020)
National Therapeutic Services, Inc. v. City of
Costa Mesa, No. 18-cv-1080 (July 17, 2020)
United States Court of Appeals (9th Cir.):
SoCal Recovery, LLC v. City of Costa Mesa,
Nos. 20-55820, 20-55870 (Jan. 3, 2023)
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...................................... i
PARTIES TO THE PROCEEDING .......................... ii
RELATED PROCEEDINGS ..................................... ii
TABLE OF AUTHORITIES ......................................v
PETITION FOR A WRIT OF CERTIORARI ........... 1
OPINIONS BELOW .................................................. 1
JURISDICTION ........................................................ 1
STATUTORY PROVISIONS INVOLVED ............... 1
INTRODUCTION ..................................................... 3
STATEMENT OF THE CASE .................................. 5
REASONS TO GRANT THE PETITION ............... 11
I. This Court Should Grant Review to
Clarify the Standard an Entity Must
Meet to Show the Disability of Its
Residents When Suing for Disability
Discrimination on Behalf of the
Individuals It Serves. ................................... 15
A. There is uncertainty and inconsistency
in the lower courts on what standard an
entity suing on behalf of purportedly
disabled individuals must meet. ............ 15
B. Some circuits allow entities to evade the
requirement of showing substantial
limitations on major life activities. ........ 18
iv
TABLE OF CONTENTS
(continued)
Page
C. Other circuits allow entities to make
an incomplete and collectivized
showing of substantial limitations
on major life activities. ........................... 21
II. This Court Should Grant Review to Resolve
the Inconsistency Among the Lower Courts
on When Expressions of Public Opinion
Made to a Municipality Can Be Attributed
to the Entity.................................................. 25
III.This Case Is a Good Vehicle for This Court
to Resolve Questions of Great Importance
to the Federal Judiciary, Disabled Persons,
and the Public at Large. ............................... 30
CONCLUSION ........................................................ 32
APPENDIX
APPENDIX A: Opinion of the U.S. Court of
Appeals for the Ninth Circuit (Jan. 3, 2023) ..... 1a
APPENDIX B: Order of the U.S. District Court
for the Central District of California
(Apr. 10, 2020)................................................... 36a
APPENDIX C: Order of the U.S. District Court
for the Central District of California
(July 17, 2020)................................................... 53a
APPENDIX D: Order of the U.S. Court of
Appeals for the Ninth Circuit
(Feb. 23, 2023) ................................................... 70a
v
TABLE OF AUTHORITIES
Page
CASES
A Helping Hand, LLC v. Baltimore County,
515 F.3d 356 (4th Cir. 2008) ................................ 29
Albertson’s, Inc. v. Kirkingburg,
527 U.S. 555 (1999) ........................................ 16, 24
Amber Reineck House v. City of Howell,
2022 WL 17650471 (E.D. Mich. Dec. 13,
2022) ..................................................................... 13
Ames v. Home Depot U.S.A., Inc.,
629 F.3d 665 (7th Cir. 2011) ................................ 16
Ariz. Recovery Hous. Ass’n v. Ariz. Dep’t of
Health Servs.,
462 F. Supp. 3d 990 (D. Ariz. 2020) .................... 13
Bailey v. Ga.-Pac. Corp.,
306 F.3d 1162 (1st Cir. 2002) .............................. 17
Budnick v. Town of Carefree,
518 F.3d 1109 (9th Cir. 2008) .............................. 17
Burris v. Novartis Animal Health U.S., Inc.,
309 F. App’x 241 (10th Cir. 2009).................. 16, 17
Casa Capri Recovery, Inc. v. City of Costa
Mesa,
2019 WL 7882531 (C.D. Cal. Nov. 19,
2019) ..................................................................... 13
City of Edmonds v. Wash. State Bldg. Code
Council,
18 F.3d 802 (9th Cir. 1994) .................................. 21
vi
TABLE OF AUTHORITIES
(continued)
Page
Cunningham v. Nature’s Earth Pellets,
L.L.C.,
433 F. App’x 751 (11th Cir. 2011)........................ 16
Geraci v. Union Square Condo. Ass’n,
891 F.3d 274 (7th Cir. 2018) ................................ 17
Glass v. Asic N., Inc.,
848 F. App’x 255 (9th Cir. 2021).......................... 18
Harmony Haus Westlake, L.L.C. v. Parkstone
Prop. Owners Ass’n,
851 F. App’x 461 (5th Cir. 2021).......................... 22
Harmony Haus Westlake, LLC v. Parkstone
Prop. Owners Ass’n,
468 F. Supp. 3d 800 (W.D. Tex. 2020) ................. 13
His House Recovery Residence, Inc. v. Cobb
County,
806 F. App’x 780 (11th Cir. 2020)........................ 14
Innovative Health Sys., Inc. v. City of White
Plains,
117 F.3d 37 (2d Cir. 1997) ............................. 28, 29
Intervention911 v. City of Palm Springs,
2020 WL 1889042 (C.D. Cal. Apr. 15,
2020) ..................................................................... 13
James v. Tangipahoa Parish,
2022 WL 17830464 (E.D. La. Dec. 21,
2022) ..................................................................... 13
vii
TABLE OF AUTHORITIES
(continued)
Page
Lake-Geauga Recovery Ctrs., Inc. v. Munson
Township,
2021 WL 1049661 (N.D. Ohio Mar. 19,
2021) ..................................................................... 13
Lakeside Resort Enters., LP v. Bd. of
Supervisors,
455 F.3d 154 (3d Cir. 2006) ................................. 20
Meraki Recovery Hous., LLC v. City of Coon
Rapids,
2021 WL 5567898 (D. Minn. Nov. 29,
2021) ..................................................................... 13
Mora v. Univ. of Tex. Sw. Med. Ctr.,
469 F. App’x 295 (5th Cir. 2012).......................... 16
Murphy v. United Parcel Serv., Inc.,
527 U.S. 516 (1999) .................................. 25, 27, 30
MX Grp., Inc. v. City of Covington,
293 F.3d 326 (6th Cir. 2002) ...............23, 26, 27, 28
Ohio House, LLC v. City of Costa Mesa,
2022 WL 18284406 (C.D. Cal. Nov. 16,
2022) ..................................................................... 13
Oliveras-Sifre v. P.R. Dep’t of Health,
214 F.3d 23 (1st Cir. 2000) .................................. 17
Oxford House, Inc. v. City of Dothan,
2022 WL 17475763 (M.D. Ala. Dec. 6,
2022) ..................................................................... 13
Pac. Shores Props., LLC v. City of Newport
Beach,
730 F.3d 1142 (9th Cir. 2013) .......................... 5, 21
viii
TABLE OF AUTHORITIES
(continued)
Page
Pac. Shores, LLC v. City of Costa Mesa,
2020 WL 2475091 (C.D. Cal. Mar. 31,
2020) ..................................................................... 13
Perry Educ. Ass’n v. Perry Loc. Educators’
Ass’n,
460 U.S. 37 (1983) ................................................ 28
Reg’l Econ. Cmty. Action Program, Inc. v.
City of Middletown,
294 F.3d 35 (2d Cir. 2002) ............................. 16, 20
RHJ Med. Ctr., Inc. v. City of DuBois,
564 F. App’x 660 (3d Cir. 2014) ..................... 17, 30
Sailboat Bend Sober Living, LLC v. City of
Fort Lauderdale,
46 F.4th 1268 (11th Cir. 2022) ...................... 13, 14
Sailboat Bend Sober Living, LLC v. City of
Fort Lauderdale,
479 F. Supp. 3d 1298 (S.D. Fla. 2020) ................. 13
Smith v. Ark. State Highway Emps.,
441 U.S. 463 (1979) .............................................. 28
Solid Landings Behav. Health, Inc. v. City of
Costa Mesa,
2015 WL 13919156 (C.D. Cal. Sept. 18,
2015) ..................................................................... 13
Summit Coastal Living, Inc. v. City of Costa
Mesa,
2020 WL 4353677 (C.D. Cal. May 1, 2020) ......... 13
Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999) ...................4, 15, 24, 25, 27, 30
ix
TABLE OF AUTHORITIES
(continued)
Page
Swanston v. City of Plano,
557 F. Supp. 3d 781 (E.D. Tex. 2021) .................. 13
Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184 (2002) ........................................ 16, 24
Trinity Sober Living, LLC v. Village of
Hinsdale,
2021 WL 1057749 (N.D. Ill. Mar. 18, 2021) ........ 13
Tsombanidis v. W. Haven Fire Dep’t,
352 F.3d 565 (2d Cir. 2003) ........................... 27, 28
Turner v. City of Englewood,
195 F. App’x 346 (6th Cir. 2006).......................... 14
United States v. S. Mgmt. Corp.,
955 F.2d 914 (4th Cir. 1992) .................... 18, 19, 20
Vision Warriors Church, Inc. v. Cherokee
County,
2022 WL 775417 (N.D. Ga. Feb. 17, 2022) .......... 13
Yellowstone Women’s First Step House, Inc.
v. City of Costa Mesa,
2019 WL 6998664 (C.D. Cal. July 16,
2019) ..................................................................... 13
Zenor v. El Paso Healthcare Sys., Ltd.,
176 F.3d 847 (5th Cir. 1999) ................................ 17
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I ................................................ 28
x
TABLE OF AUTHORITIES
(continued)
Page
STATUTES
ADA Amendments Act of 2008,
Pub. L. No. 110-325, 122 Stat. 3553 .....4, 15, 16, 25
Americans with Disabilities Act of 1990,
42 U.S.C. § 12101 et seq. ........................................ 4
Fair Housing Act, 42 U.S.C. § 3601 et seq................. 4
28 U.S.C. § 1254(1)..................................................... 1
42 U.S.C. § 3601 ....................................................... 31
42 U.S.C. § 3602 ............................................. 1, 15, 25
42 U.S.C. § 3604 ....................................................... 17
42 U.S.C. § 12101 ..................................................... 31
42 U.S.C. § 12102 ......................................2, 15, 18, 25
REGULATIONS
24 C.F.R. § 100.201 .................................................. 18
29 C.F.R. § 1630.2 .................................................... 16
OTHER AUTHORITIES
Anaheim, Cal., Mun. Code § 18.38.123,
https://tinyurl.com/4yh9zn9s ............................... 11
Katrice Bridges Copeland, Liquid Gold, 97
Wash. U. L. Rev. 1451 (2020) .............................. 11
Costa Mesa, Cal., Ordinance 14-13 (Oct. 21,
2014) ....................................................................... 5
Costa Mesa, Cal., Ordinance 15-06 (July 7,
2015) ....................................................................... 5
xi
TABLE OF AUTHORITIES
(continued)
Page
Costa Mesa, Cal., Ordinance 15-11 (Nov. 17,
2015) ....................................................................... 5
Costa Mesa, Cal., Ordinance 17-05 (May 2,
2017) ....................................................................... 5
Dublin, Ohio, Code of Ordinances § 153.073,
https://tinyurl.com/jctxvxj7 .................................. 11
Howard Fischer, Tucson.com, Judge Allows
Arizona to Enforce New Regulations on
‘Sober Living’ Homes (June 4, 2020),
https://tinyurl.com/y6tu4vf9 ................................ 11
Bess Greenberg, Blind Spot in Plain Sight:
The Need for Federal Intervention in the
Sober Living Home Industry and the Path
to Making It Happen, 71 Emory L.J. 107
(2021) .................................................................... 11
Matthew M. Gorman, Anthony Marinaccio &
Christopher Cardinale, Fair Housing for
Sober Living: How the Fair Housing Act
Addresses Recovery Homes for Drug and
Alcohol Addiction, 42 Urb. Law. 607
(2010) ...................................................................... 6
Cecily Hilleary, Phony ‘Sober Living’ Homes
in Arizona Target Vulnerable Native
Americans, Voice of Am. (Feb. 28, 2023),
https://tinyurl.com/yc4ys58w ............................... 12
xii
TABLE OF AUTHORITIES
(continued)
Page
Elise Kaplan, They Were Promised Help
Getting Sober and a Fresh Start. Instead,
They Ended up Stranded in Arizona,
Albuquerque J. (June 8, 2023),
https://tinyurl.com/58bkaxcm .............................. 12
Legis. Analysis & Pub. Pol’y Ass’n, About,
https://tinyurl.com/2s4a3suh (last visited
July 20, 2023) ....................................................... 14
Model Recovery Residence Certification Act
(Legis. Analysis & Pub. Pol’y Ass’n, Feb.
2021), https://tinyurl.com/458sby54 .................... 14
Orange Cnty. Grand Jury, Welcome to the
Neighborhood: Are Cities Responsibly
Managing the Integration of Group
Homes? (2023),
https://tinyurl.com/yu3vp3xb ............................... 12
Rehab Riviera: An Investigation into the
Southern California Rehab Industry,
Orange County Register (2017),
https://tinyurl.com/semabuex ................................ 3
Teri Sforza, OC Cities Continue to Wrestle
with Irresponsible Addiction Recovery
Homes, Grand Jury Finds, Orange Cnty.
Reg. (June 13, 2023),
https://tinyurl.com/4cctp9kk ................................ 12
xiii
TABLE OF AUTHORITIES
(continued)
Page
Substance Abuse & Mental Health Servs.
Admin., Recovery Housing: Best Practices
and Suggested Guidelines,
https://tinyurl.com/4vc99nx8 (last visited
July 20, 2023) ....................................................... 12
Colton Wooten, My Years in the Florida
Shuffle of Drug Addiction, New Yorker
(Oct. 14, 2019),
https://tinyurl.com/346ur44m ................................ 3
1
PETITION FOR A WRIT OF CERTIORARI
The City of Costa Mesa respectfully petitions for a
writ of certiorari to review the judgment of the United
States Court of Appeals for the Ninth Circuit.
OPINIONS BELOW
The opinion of the Ninth Circuit (Pet. App. 1a-35a)
is reported at 56 F.4th 802. The orders of the district
court (Pet. App. 36a-52a, 53a-69a) are not published
in the Federal Supplement but are available at 2020
WL 2528002 and 2020 WL 5005550.
JURISDICTION
The court of appeals entered judgment on January
3, 2023 (Pet. App. 2a), and denied petitioner’s timely
petition for rehearing en banc on February 23, 2023
(Pet. App. 70a). On May 5, 2023, Justice Kagan extended the time to file a petition for a writ of certiorari
to July 21, 2023. No. 22A971. This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
42 U.S.C. § 3602 provides in pertinent part:
§ 3602. Definitions
As used in this subchapter—
*
*
*
(h) “Handicap” means, with respect to a person—
(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities,
(2) a record of having such an impairment, or
2
(3) being regarded as having such an impairment,
but such term does not include current, illegal use of
or addiction to a controlled substance (as defined in
section 802 of title 21).
*
*
*
42 U.S.C. § 12102 provides in pertinent part:
§ 12102. Definition of disability
As used in this chapter:
(1) Disability
The term “disability” means, with respect to an individual—
(A) a physical or mental impairment that substantially limits one or more major life activities of
such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in paragraph (3)).
*
*
*
3
INTRODUCTION
Group homes for persons recovering from alcoholism or drug addiction (“sober living homes”) are part
of the $50 billion addiction-recovery industry. See
Colton Wooten, My Years in the Florida Shuffle of
Drug Addiction, New Yorker (Oct. 14, 2019),
https://tinyurl.com/346ur44m. These homes, which
offer no medical treatment, have proliferated in recent decades, particularly in coastal cities. See id.;
Rehab Riviera: An Investigation into the Southern
California Rehab Industry, Orange County Register
(2017), https://tinyurl.com/semabuex. So have the legal controversies they generate.
Because most states do not regulate these facilities, local municipalities are often on the front lines
addressing the impacts. Municipalities must walk a
fine line to reconcile their public safety obligations
and zoning responsibilities with the constraints of
federal statutes prohibiting discrimination on the basis of disability.
This case is an exemplar of such disputes. Petitioner the City of Costa Mesa (the City) requires
group homes, including sober living homes, to be
spaced at least 650 feet apart to prevent an overconcentration of recovery facilities in one neighborhood.
Respondents SoCal Recovery, LLC (SoCal) and RAW
Recovery, LLC (RAW) operated homes closer than allowed. When the City declined to grant them exceptions from the distancing requirement, they separately sued the City, alleging disability discrimination. The district court granted summary judgment
in the City’s favor, and the Ninth Circuit reversed.
4
The summary judgments and the appeals turned
on a threshold question in every disability discrimination suit – whether the persons allegedly discriminated against qualified as “disabled” under federal
statutes. This Court has held that individuals bringing Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. § 12101 et seq., claims must provide individualized evidence that they qualify as disabled under
federal law. Sutton v. United Air Lines, Inc., 527 U.S.
471, 483 (1999), superseded by statute on other
grounds, ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553.
But this Court has never addressed the standard
for entities bringing Fair Housing Act (FHA), 42
U.S.C. § 3601 et seq., or ADA claims on behalf of those
they serve, and here the Ninth Circuit held that an
entity such as a sober living home “need not provide
individualized evidence of the ‘actual disability’ of
their residents” to defeat summary judgment. Pet.
App. 24a. Compounding this error, the Ninth Circuit
also held that comments made by members of the
public in open City meetings about the sober living
homes could be attributed to the City (even if the City
expressed no opinion about them) to assess whether
the City generally regarded the entities’ clients as disabled.
These holdings go against rulings of this Court
which require an individualized showing of disability
and governmental expression of discriminatory intent. Other circuits, too, have deviated from this
Court’s holdings on these two issues, in the process
adopting a wide array of differing tests that share one
characteristic: a lower standard of showing a disability than an individual plaintiff would have to meet
5
under this Court’s precedent. This case offers the opportunity to bring the circuits into alignment with
this Court and among themselves.
STATEMENT OF THE CASE
California licenses alcohol and drug program facilities that provide substance abuse treatment on site.
Pac. Shores Props., LLC v. City of Newport Beach, 730
F.3d 1142, 1148 n.3 (9th Cir. 2013). In contrast, “sober houses,” also known as “sober living homes,” are
group homes with no formal substance abuse treatment program, occupied by persons in recovery and
run by third-party companies. Id. California, like
most states, does not regulate or license these sober
living homes.
Over time, however, the City enacted ordinances
governing various group homes, including sober living
homes. 20-55870 C.A. Doc. 35 (C.A. Statutory Addendum), at 85-135.1 In doing so, it recognized:
[T]he purpose of sober living homes is to provide a comfortable living environment for persons with drug or alcohol addictions in which
they remain clean and sober and can participate in a recovery program in a residential,
community environment, and so that they have
the opportunity to reside in the . . . neighborhood of their choice.
Id. at 87, 112, 124.
1 Reproducing Costa Mesa, Cal., Ordinance 14-13 (Oct. 21,
2014); Costa Mesa, Cal., Ordinance 15-06 (July 7, 2015); Costa
Mesa, Cal., Ordinance 15-11 (Nov. 17, 2015); Costa Mesa, Cal.,
Ordinance 17-05 (May 2, 2017).
6
The City enacted these ordinances because it had
“seen a sharp increase in the number of sober living
homes,” driven at least in part by the provisions of the
Patient Protection and Affordable Care Act and California’s Substance Abuse and Crime Prevention Act
of 2000, which placed an emphasis on rehabilitation
and provided insurance coverage for it. C.A. Statutory Addendum 86, 111, 123. The rise in the number
of purported sober living homes in Costa Mesa led to
“the clustering of sober living facilities in close proximity to each other creating near neighborhoods of sober living homes,” and contributed to “neighborhood
parking shortfalls, overcrowding, inordinate amounts
of second-hand smoke, and noise.” Id. at 86, 111, 123.
The City’s stated purpose in enacting these ordinances included providing “an accommodation for the
handicapped that is reasonable and actually bears
some resemblance to the opportunities afforded nonhandicapped individuals to use and enjoy a dwelling
unit in a residential neighborhood,” and “comfortable
living environments that will enhance the opportunity for the handicapped, including recovering addicts to be successful in their programs.” C.A. Statutory Addendum 93, 115.2
The findings prefacing the ordinances noted that
“at least some operators of sober living homes [were]
2 Accord Matthew M. Gorman, Anthony Marinaccio & Chris-
topher Cardinale, Fair Housing for Sober Living: How the Fair
Housing Act Addresses Recovery Homes for Drug and Alcohol Addiction, 42 Urb. Law. 607, 608 (2010) (sober living facilities and
operators “vary greatly”: “[b]ecause nearly any single family
home can become a ‘sober living home’ [just] by adopting the label, some single family homes house upwards of twenty or thirty
individuals”).
7
driven more by a motivation to profit rather than to
provide a comfortable living environment . . . which
remotely resemble[d] the manner in which the nondisabled use and enjoy a dwelling.” C.A. Statutory
Addendum 88, 112, 125. The City aimed to provide
the disabled with opportunities similar to those of
non-disabled individuals, and to prevent operators
from skirting the City’s regulations on boardinghouses. Id. at 93, 115.
The City’s purpose in doing so was far from discriminatory. As the City noted in its reasons for denying one of the applications in this case:
The City determined that housing inordinately
large numbers of unrelated adults in a single
dwelling or congregating sober living homes in
close proximity to each other does not provide
the disabled with an opportunity to “live in normal residential surroundings,” but rather
places them into living environments bearing
more in common with the types of institutional/campus/dormitory living that the state
and federal laws were designed to provide relief
from for disabled persons.
20-55870 C.A. E.R. 2260.
To fulfill these goals, the City’s ordinances created
various regulations governing group homes and sober
living homes. In particular, the ordinances created a
dispersal requirement for all sober living homes.
They required that “[t]he sober living home is not located within 650 feet, as measured from the closest
property lines, of any other sober living home or a
state licensed alcoholism or drug abuse recovery or
treatment facility.” C.A. Statutory Addendum 95, 97,
8
130, 132. The City found that “a 650-foot distance requirement provides a reasonable market for the purchase and operation of a sober living home within the
City and still results in preferential treatment for sober living homes.”3 Id. at 90.
The ordinances provide that an applicant wanting
to operate a sober living home may seek relief from
the strict application of these requirements by applying to the City setting forth specific reasons as to why
accommodation is necessary. C.A. Statutory Addendum 96, 116, 131, 133.
When the ordinances were passed, SoCal and
RAW operated sober living homes that did not comply
with the 650-foot spacing requirement. 20-55820 C.A.
E.R. 535-36; 20-55870 C.A. E.R. 2023. Both sought
relief from the distancing requirement by applying for
3 The City’s zoning code defines:
A “boardinghouse” as “[a] residence or dwelling, other than
a hotel, wherein rooms are rented under two (2) or more separate written or oral rental agreements, leases or subleases
or combination thereof”;
A “group home” as “[a] facility that is being used as a supportive living environment for persons who are considered
handicapped under state or federal law”; and
A “sober living home” as “a group home for persons who are
recovering from a drug and/or alcohol addiction and who are
considered handicapped under state or federal law.”
C.A. Statutory Addendum 48-50. The ordinances give preferential treatment to such residences over similar living facilities for
non-disabled individuals (i.e., boardinghouse-style residences).
Id. at 90, 113.
9
permits to operate these homes, which the City denied. 20-55820 C.A. E.R. 1720-22, 1732-34, 1752-54;
20-55870 C.A. E.R. 2254-56.
SoCal and RAW separately sued the City in the
United States District Court for the Central District
of California. They alleged that the City had violated
the ADA and FHA, among other federal and state
statutes, in failing to grant permits for their sober living homes. 20-55820 C.A. E.R. 2238; 20-55870 C.A.
E.R. 2983.
In discovery in each case, the City sought from
SoCal and RAW all documents related to its clients’
“medical information, drug use, disability status, record of such, and being regarded as such.” 20-55820
C.A. E.R. 2131; 20-55870 C.A. E.R. 2820. SoCal and
RAW objected and refused to produce such documents
on the ground they violated their residents’ medical
privilege. 20-55820 C.A. E.R. 2131; 20-55870 C.A.
E.R. 2820.
In each case, the City moved for summary judgment on various grounds, including that “[a]ll of
Plaintiffs’ discrimination claims fail because Plaintiffs cannot meet their burden to prove that they are
associated with individuals that qualify as disabled.”
20-55820 C.A. E.R. 2102; 20-55870 C.A. E.R. 2787.
The district court agreed. In both cases, it held that
Plaintiffs have not created any genuine dispute
of material fact as to whether [their] clients are
disabled, and ha[ve] not made a showing sufficient to establish the existence of this element
10
essential to their FHA and ADA causes of action, on which they will bear the burden of
proof at trial . . . .
Pet. App. 48a-49a; id. at 66a.
SoCal and RAW appealed the summary judgments
to the Ninth Circuit. The Ninth Circuit decided the
two appeals in a single 38-page published decision, in
which it reversed both summary judgments and remanded the cases to the district court. Pet. App. 1a35a. In so doing, it held that “Appellants need not
provide individualized evidence of the ‘actual disability’ of their residents” to defeat summary judgment.
Id. at 24a. Instead, the Ninth Circuit announced that
entities could satisfy the threshold disability element
of FHA and ADA claims simply by showing “on a collective basis” through their policies and procedures
“that they serve or intend to serve individuals with
actual disabilities.” Id. The court also opined that
testimony of former residents about the effect of their
addiction before entering recovery, including loss of a
job, home, or family from drinking or drug use, could
show the requisite substantial limitation on a major
life activity – even though this did not establish that
they experienced a substantial limitation while they
were sober and residing at the sober living home. Id.
at 28a-29a.
The court of appeals also held that, in evaluating
summary judgment, the trial court should consider
that “the City may have been influenced by the way
others wrote and spoke about those with disabilities
at public hearings.” Pet. App. 33a. The City petitioned for rehearing en banc, which the court of appeals denied. Id. at 70a-71a.
11
REASONS TO GRANT THE PETITION
The sober living home industry, and more broadly
the addiction treatment industry, has experienced explosive growth in the past ten years. Katrice Bridges
Copeland, Liquid Gold, 97 Wash. U. L. Rev. 1451,
1452 (2020). Yet as of 2020, sober living homes were
unregulated in 44 of the 50 states. Bess Greenberg,
Blind Spot in Plain Sight: The Need for Federal Intervention in the Sober Living Home Industry and the
Path to Making It Happen, 71 Emory L.J. 107, 111
(2021).
This has left local municipalities on the frontlines,
particularly through the exercise of their zoning responsibilities, to protect the residents of these
homes.4 The record below reflects reporting on the
mounting problems municipalities must confront.5
4 See, e.g., Anaheim, Cal., Mun. Code § 18.38.123, https://tinyurl.com/4yh9zn9s; Dublin, Ohio, Code of Ordinances
§ 153.073, https://tinyurl.com/jctxvxj7; Howard Fischer, Tucson.com, Judge Allows Arizona to Enforce New Regulations on
‘Sober Living’ Homes (June 4, 2020), https://tinyurl.com/
y6tu4vf9.
5 See, e.g., 18-cv-1080 Dist. Ct. Doc. 82-14, at 42-44 (“Body
brokering, where addicts are sold as investments, can continue
in sober homes, for now”), 90-91 (“Long shower leads to stabbing,
arrest at Dana Point sober living facility”), 98-102 (“No one is
inspecting sober living homes, but bill would require minimum
standards if they want funding”), 105-08 (“O.C. District Attorney
charges family, doctors with insurance fraud related to sober living homes, urine tests”), 150-55 (“Sober Living: Modern family
or big business?”), 162-64 (“OPINION: The Access to Sober Living Act will stop unethical practices at sober living homes”).
12
News coverage elsewhere is similarly filled with concerns about the proliferation of these homes and their
abuse of vulnerable communities for profit.6
The result has been a tsunami of federal disability
discrimination litigation between sober living homes
and municipalities seeking to reconcile the need to
protect the homes’ vulnerable residents with the interests they must safeguard for the public at large.
6 See, e.g., Cecily Hilleary, Phony ‘Sober Living’ Homes in Ar-
izona Target Vulnerable Native Americans, Voice of Am. (Feb.
28, 2023), https://tinyurl.com/yc4ys58w (homes that bill for
healthcare benefits they never deliver to at-risk Native Americans “skirt[ ] Phoenix regulations that facilities with six or more
residents must register with the city and may not operate within
1,320 feet of any other group home. By keeping just five people
to a house, they avoid registration and can rent adjoining properties”); Elise Kaplan, They Were Promised Help Getting Sober
and a Fresh Start. Instead, They Ended up Stranded in Arizona,
Albuquerque J. (June 8, 2023), https://tinyurl.com/58bkaxcm;
Substance Abuse & Mental Health Servs. Admin., Recovery
Housing: Best Practices and Suggested Guidelines 6, https://tinyurl.com/4vc99nx8 (last visited July 20, 2023) (highlighting unethical practice of “patient brokering,” where “a broker or agent
refers a person, who is either in active use or has relapsed after
treatment, to an unethical treatment center for a financial fee or
some other valuable kickback”); Teri Sforza, OC Cities Continue
to Wrestle with Irresponsible Addiction Recovery Homes, Grand
Jury Finds, Orange Cnty. Reg. (June 13, 2023), https://tinyurl.com/4cctp9kk; Orange Cnty. Grand Jury, Welcome to the
Neighborhood: Are Cities Responsibly Managing the Integration
of Group Homes? (2023), https://tinyurl.com/yu3vp3xb (chronicling concerns about sober living homes in Orange County, California, and citing multiple news reports of challenges associated
with these homes).
13
The Central District of California has been a particular flashpoint for these cases,7 but they have now proliferated in district courts across the United States.8
Much of this litigation is now reaching the circuit
7 See Ohio House, LLC v. City of Costa Mesa, 2022 WL
18284406, at *1 (C.D. Cal. Nov. 16, 2022); Summit Coastal Living, Inc. v. City of Costa Mesa, 2020 WL 4353677, at *2-3 (C.D.
Cal. May 1, 2020); Intervention911 v. City of Palm Springs, 2020
WL 1889042, at *1, *3 (C.D. Cal. Apr. 15, 2020); Pac. Shores,
LLC v. City of Costa Mesa, 2020 WL 2475091, at *2-3 (C.D. Cal.
Mar. 31, 2020); Casa Capri Recovery, Inc. v. City of Costa Mesa,
2019 WL 7882531, at *2 (C.D. Cal. Nov. 19, 2019); Yellowstone
Women’s First Step House, Inc. v. City of Costa Mesa, 2019 WL
6998664, at *1 (C.D. Cal. July 16, 2019), aff’d in part, vacated in
part, 2021 WL 4077001 (9th Cir. Sept. 8, 2021); Solid Landings
Behav. Health, Inc. v. City of Costa Mesa, 2015 WL 13919156, at
*1, *3 (C.D. Cal. Sept. 18, 2015).
8 Alabama (Oxford House, Inc. v. City of Dothan, 2022 WL
17475763, at *1 (M.D. Ala. Dec. 6, 2022)); Arizona (Ariz. Recovery Hous. Ass’n v. Ariz. Dep’t of Health Servs., 462 F. Supp. 3d
990, 994-96 (D. Ariz. 2020)); Florida (Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale, 479 F. Supp. 3d 1298, 1305,
1313 (S.D. Fla. 2020), aff’d, 46 F.4th 1268 (11th Cir. 2022));
Georgia (Vision Warriors Church, Inc. v. Cherokee County, 2022
WL 775417, at *1, *6 (N.D. Ga. Feb. 17, 2022), appeal docketed,
No. 22-10773 (11th Cir. argued Jan. 26, 2023)); Illinois (Trinity
Sober Living, LLC v. Village of Hinsdale, 2021 WL 1057749, at
*1 (N.D. Ill. Mar. 18, 2021)); Louisiana (James v. Tangipahoa
Parish, 2022 WL 17830464, at *1-2 (E.D. La. Dec. 21, 2022));
Michigan (Amber Reineck House v. City of Howell, 2022 WL
17650471, at *2 (E.D. Mich. Dec. 13, 2022)); Minnesota (Meraki
Recovery Hous., LLC v. City of Coon Rapids, 2021 WL 5567898,
at *1 (D. Minn. Nov. 29, 2021)); Ohio (Lake-Geauga Recovery
Ctrs., Inc. v. Munson Township, 2021 WL 1049661, at *4 (N.D.
Ohio Mar. 19, 2021)); Texas (Swanston v. City of Plano, 557
F. Supp. 3d 781, 785-86 (E.D. Tex. 2021); Harmony Haus
Westlake, LLC v. Parkstone Prop. Owners Ass’n, 468 F. Supp. 3d
800, 805 (W.D. Tex. 2020)).
14
court level.9 Such litigation can be expected only to
become more frequent as the number of profitable sober living homes continues to grow.
The Legislative Analysis and Public Policy Association is a nonprofit organization that drafts legislation on effective law and policy in public safety and
health, substance use disorders, and the criminal justice system.10 In 2021, it released a Model Recovery
Residence Certification Act (Model Act), supported by
a grant awarded by the Office of National Drug Control Policy, Executive Office of the President.11 Strikingly, the Model Act contains two mutually exclusive
proposals on zoning regulations; members of the
working group could not reach a consensus on the potential effect of the ADA and FHA because “court decisions vary considerably.” Model Act § XIII cmt.
This Court’s guidance on the threshold disability
requirement for these claims is needed. The question
of how disability is to be proved when a municipality
is accused of discriminating against the clients of a
facility serving recovering alcoholic or drug-addicted
clients has spawned confusion and inconsistency in
9 On top of the many circuit court decisions cited infra, see
also Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale,
46 F.4th 1268 (11th Cir. 2022); His House Recovery Residence,
Inc. v. Cobb County, 806 F. App’x 780, 781-82 (11th Cir. 2020)
(per curiam); Turner v. City of Englewood, 195 F. App’x 346, 34749 (6th Cir. 2006).
Legis. Analysis & Pub. Pol’y Ass’n, About, https://tinyurl.com/2s4a3suh (last visited July 20, 2023).
10
11 Model Recovery Residence Certification Act (Legis. Analy-
sis & Pub. Pol’y Ass’n, Feb. 2021), https://tinyurl.com/458sby54
(cover page and acknowledgments).
15
the circuit courts, and, as shown below, much of the
resulting jurisprudence contradicts the principles this
Court has laid down for discrimination suits brought
by individuals.
I. This Court Should Grant Review to Clarify
the Standard an Entity Must Meet to Show
the Disability of Its Residents When Suing
for Disability Discrimination on Behalf of
the Individuals It Serves.
A. There is uncertainty and inconsistency
in the lower courts on what standard an
entity suing on behalf of purportedly disabled individuals must meet.
Much of the Ninth Circuit’s opinion dealt with
what an entity must show to satisfy the first prong of
the FHA and ADA’s three-pronged definition of disability12: a physical or mental impairment that substantially limits one or more major life activities of the
individual. Pet. App. 20a-29a (citing 42 U.S.C.
§§ 3602(h), 12102(1)). This Court has addressed and
resolved a different but related issue: what an individual must show to establish that his or her physical
or mental impairment substantially limits one or
more major life activities. It has held that whether a
person has a disability under the ADA requires an individualized inquiry. Sutton v. United Air Lines, Inc.,
527 U.S. 471, 483 (1999), superseded by statute on
other grounds, ADA Amendments Act of 2008, Pub. L.
12 The FHA defines “handicap,” and the ADA defines “disa-
bility” in essentially the same way. 42 U.S.C. §§ 3602(h), 12102.
This petition will use the terms “disability” and “disabled” to include “handicap” and “handicapped” under the FHA.
16
No. 110-325, 122 Stat. 3553. The law requires those
“claiming the Act’s protection . . . to prove a disability
by offering evidence that the extent of the limitation
[caused by their impairment] in terms of their own
experience . . . is substantial.” Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) (alterations in original) (citation omitted), superseded by
statute on other grounds, ADA Amendments Act of
2008, Pub. L. No. 110-325, 122 Stat. 3553; Albertson’s,
Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999).13
The circuit courts have widely recognized that the
impairments at issue – alcoholism and substance
abuse – cannot be presumed to substantially limit an
individual’s major life activities. Ames v. Home Depot
U.S.A., Inc., 629 F.3d 665, 670 (7th Cir. 2011); Burris
v. Novartis Animal Health U.S., Inc., 309 F. App’x
241, 249-51 (10th Cir. 2009); Reg’l Econ. Cmty. Action
Program, Inc. v. City of Middletown, 294 F.3d 35, 4647 (2d Cir. 2002), superseded by statute on other
grounds, ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553. Thus, the circuit courts consistently require individual claimants to make an individualized showing that, even when they abstain
from using drugs or alcohol, alcoholism or drug addiction substantially limits major life activities. See, e.g.,
Mora v. Univ. of Tex. Sw. Med. Ctr., 469 F. App’x 295,
297-98 (5th Cir. 2012) (per curiam); Cunningham v.
Nature’s Earth Pellets, L.L.C., 433 F. App’x 751, 752
(11th Cir. 2011) (per curiam); Ames, 629 F.3d at 67013 The ADA Amendments Act of 2008 lowered the degree of
limitation that the claimant must prove but did not remove the
requirement of an individualized showing that the impairment
substantially limits major life activities. § 2(a)(4)-(8), 122 Stat.
at 3553-54; see 29 C.F.R. § 1630.2(j)(1)(iv).
17
71; Burris, 309 F. App’x at 249-51; Bailey v. Ga.-Pac.
Corp., 306 F.3d 1162, 1166-68 (1st Cir. 2002); Zenor
v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 859-60
(5th Cir. 1999).
However, this case and the many like it present a
different question – what must an entity prove when
it claims someone discriminated against the individuals the entity serves? Entities providing housing
and other services to persons recovering from alcoholism or substance abuse can make FHA and ADA
claims only indirectly. A group home claiming to be a
sober living home must show that it provides services
to, or is associated with, individuals who are disabled.
See 42 U.S.C. § 3604(f); Budnick v. Town of Carefree,
518 F.3d 1109, 1115 (9th Cir. 2008). By definition,
these homes are not themselves disabled; they must
show they have been injured by discrimination because of disability against the persons they serve.
See, e.g., RHJ Med. Ctr., Inc. v. City of DuBois, 564
F. App’x 660, 664 (3d Cir. 2014). To proceed on this
basis, plaintiffs must prove they have a relationship
with or are associated with a disabled individual.
E.g., Oliveras-Sifre v. P.R. Dep’t of Health, 214 F.3d
23, 26-27 (1st Cir. 2000) (associational disability
claim of advocates for persons with AIDS failed for
lack of specific association with any disabled individual). This is because a plaintiff relying on a relationship has no greater protection under the anti-discrimination laws than an individual claiming an actual
disability would receive.
A plaintiff alleging disability discrimination has
the burden of proving disability. Geraci v. Union
Square Condo. Ass’n, 891 F.3d 274, 277 (7th Cir.
18
2018). To meet the statutory definition of being actually disabled, individual plaintiffs must establish that
their impairment substantially limits a major life activity. 42 U.S.C. § 12102(1)-(2); 24 C.F.R.
§ 100.201(b). Conclusory, self-serving statements
claiming disabilities are not enough. Glass v. Asic N.,
Inc., 848 F. App’x 255, 257-58 (9th Cir. 2021). An entity claiming disability discrimination must establish
that the alleged discrimination against it was because
its clients are disabled within the statutory definition.
This Court has never addressed the proper test for
discrimination claims by these entities. The Ninth
Circuit’s decision is one of multiple inconsistent circuit court decisions that have wrestled with the issue.
B. Some circuits allow entities to evade the
requirement of showing substantial limitations on major life activities.
Some circuits effect the sharpest contrast possible
between individual and entity plaintiffs by permitting
entities to proceed without even showing that their
clients’ claimed disability has substantially limited
the clients’ major life activities. These courts simply
presume a substantial limitation.
The Fourth Circuit reached this result through circular reasoning in United States v. Southern Management Corp., 955 F.2d 914 (4th Cir. 1992). There, a
company that managed apartment complexes, SMC,
refused to lease apartments to a community service
entity for use as “reentry” housing for clients of its
drug and alcohol abuse program. Id. at 916. The
United States sued SMC under the FHA for disability
discrimination. Id. On cross-motions for summary
judgment, the trial court ruled that the entity’s clients
19
were disabled under the Act. Id. At trial, the jury
found that SMC had violated the rights of the entity’s
clients, and the court awarded damages, a penalty,
and an injunction against SMC. Id.
On appeal, SMC argued for reversal because the
government had failed to show how each of the entity’s clients slated for an SMC apartment had a substantial limitation of one or more major life activities.
955 F.2d at 917-18. While the circuit court recognized
that whether a particular person is disabled is usually
an individualized inquiry, it considered the question
“immaterial” in that case. Id. at 918.
To reach this conclusion, the circuit court noted in
part that SMC had refused to rent to the entity because the prospective tenants were former substance
abusers. 955 F.2d at 919. This alone was enough in
the court’s view to settle the question of substantial
limitation:
The clients are clearly impaired, and their ability to obtain housing (a major life activity) was
limited by the attitudes of the SMC officials.
Thus, we conclude that the clients qualify as
having a handicap under the general definition . . . .
Id. (footnote omitted).
The obvious problem with this conclusion is that it
necessarily writes the “substantially limits” requirement out of the statute. The FHA prohibits a refusal
to provide housing if it results from discrimination on
the basis of a disability – which is defined as an impairment that substantially limits major life activities. In the Fourth Circuit’s view, an entity that sues
20
a defendant for failure to provide housing to its allegedly impaired clients has automatically satisfied the
“substantially limits” requirement.
The Third Circuit, too, has elected to ignore the
“substantially limits” requirement when a facility
serving alcoholics and drug abusers sues under the
FHA. In Lakeside Resort Enterprises, LP v. Board of
Supervisors, 455 F.3d 154 (3d Cir. 2006), the court reviewed a judgment as a matter of law the district
court had entered in favor of a municipality and cited
United States v. Southern Management Corp. for the
proposition that “recovering alcoholics and drug addicts are handicapped, so long as they are not currently using illegal drugs.” Id. at 156 n.5.
The Second Circuit took a different route to presuming disability in Regional Economic Community
Action Program, supra. There, in reviewing a summary judgment granted in favor of a city sued for
denying permits for halfway houses for alcoholics, the
court presumed disability by assuming compliance
with a state law. The court assumed residents of the
halfway houses must be substantially limited because
state regulations required that they be unable to live
independently to be admitted to the facility in the first
place. 294 F.3d at 46-48.
In this case, the Ninth Circuit paid lip service to
the requirement of proving a substantial limitation on
a major life activity. Pet. App. 20a (“To establish a
disability under the ‘actual disability’ prong of the
ADA, FHA, or FEHA, a plaintiff must show ‘a physical or mental impairment’ that ‘substantially limits’
their ability to engage in one or more ‘major life activities’ ” (citations omitted)). But it then negated this
21
requirement by presuming that the clients of an entity claiming to serve alcoholics or drug addicts are
disabled:
“It is well established that persons recovering
from drug and/or alcohol addiction are disabled
under the FHA and therefore protected from
housing discrimination.” Id. (quoting Pac.
Shores Props., LLC v. City of Newport Beach,
730 F.3d 1142, 1156 (9th Cir. 2013)).
“We have stated that ‘[p]articipation in a supervised drug rehabilitation program, coupled
with non-use, meets the definition of handicapped,’ under the FHA.” Id. at 25a (quoting
City of Edmonds v. Wash. State Bldg. Code
Council, 18 F.3d 802, 804 (9th Cir. 1994), aff’d
sub nom. City of Edmonds v. Oxford House,
Inc., 514 U.S. 725 (1995) (brackets in original)).
Through these devices, the Second, Third, Fourth,
and Ninth Circuits have effectively written out of the
discrimination statutes the requirement of showing a
substantial limitation on major life activities. Nothing in the statutes or this Court’s jurisprudence countenances this evasion.
C. Other circuits allow entities to make an
incomplete and collectivized showing of
substantial limitations on major life activities.
Other circuits have acknowledged that a suing entity must show that its clients are substantially limited in major activities, but these circuits have then
opted to allow plaintiffs to proceed on selective and
incomplete evidence. They have allowed entities to
22
establish discrimination by presenting only generalized collective evidence that some clients at some
times were substantially limited in major life activities – not the specific evidence this Court requires of
individuals.
For example, in Harmony Haus Westlake, L.L.C. v.
Parkstone Property Owners Ass’n, 851 F. App’x 461
(5th Cir. 2021) (per curiam), the Fifth Circuit reviewed a decision enjoining a homeowners association
from enforcing restrictive covenants that would have
prohibited operation of a sober living home. The trial
court held that the home had adequately demonstrated that its residents were substantially limited
in major life activities by presenting the testimony of
three of its 12 residents. Id. at 463-65. At trial, the
three residents testified that their alcoholism or drug
addiction rendered them unable to be alone for extended periods of time without relapsing, and that
residents at the home typically come directly from an
inpatient treatment center. Id. at 463-64. For the
Fifth Circuit, this was enough to establish disability
for all present and future residents: “Because future
residents must be admitted to, and complete, an inpatient treatment program, they will be considered
handicapped under the FHA.” Id. at 465.14
14 The Fifth Circuit ultimately vacated the injunction on a
different ground. It found that the operators of the sober living
home had not demonstrated allowing 12 residents to live at the
home, as they proposed, was necessary to provide its residents
an equal opportunity to use and enjoy the home. 851 F. App’x at
465, 468.
23
Similarly, some circuits allow a plaintiff facility to
rely simply on the generalized testimony of its own
representatives. For example, the Sixth Circuit in
MX Group, Inc. v. City of Covington, 293 F.3d 326, 328
(6th Cir. 2002), affirmed a judgment following a bench
trial that required a city to issue permits allowing establishment of a methadone clinic. The circuit court
held that the facility had adequately established,
through restricted evidence, that its clients were substantially limited in major life activities. Id. at 33840. It found that substantial limitation was adequately established because the facility’s clients
would have to show that they had been addicted for
at least a year, and by the testimony of a single person
affiliated with the facility that narcotics addiction
necessarily includes impairments as to employability,
parenting, and functioning in everyday life. Id. at
338.
The Ninth Circuit’s decision here is to similar effect. It reversed summary judgments that had been
granted in favor of a municipality sued for disability
discrimination in denying permits to sober living
homes, where the district court found the homes had
not established actual disability by presenting individualized evidence that their clients suffered from a
substantial limitation of major life activities. The circuit court held that plaintiffs “can prove the ‘actual
disability’ of their current residents and any residents
they seek to serve in the future through admissions
criteria and house rules, testimony by employees and
current residents, and testimony by former residents.” Pet. App. 25a.
24
Thus, although this Court has consistently held
that individualized proof is needed to establish substantial limitation, the Ninth Circuit – like the Fifth
and Sixth Circuits – holds “that courts must look at
the evidence showing that the home serves or intends
to serve individuals with actual disabilities on a collective basis.” Pet. App. 34a.
*
*
*
The circuit courts have thus adopted different
standards for judging whether entities have established that alleged discrimination was directed
against individuals who are disabled within the statutory definitions. Some simply presume that alcohol
or drug dependency creates a substantial limitation
on major life activities; others allow a discrimination
claim to proceed on collective evidence that some addicted persons at some times are so limited.
The one consistency in the circuit decisions is that
none of them is compliant with this Court’s holdings
in Albertson’s, 527 U.S. at 567; Sutton, 527 U.S. at
483; and Toyota, 534 U.S. at 198, requiring individualized proof of such limitations. Certiorari is needed
to bring the circuits into alignment, not only with
each other, but with this Court as well.
25
II. This Court Should Grant Review to Resolve
the Inconsistency Among the Lower Courts
on When Expressions of Public Opinion
Made to a Municipality Can Be Attributed to
the Entity.
The other prong of the statutory definition of disability the Ninth Circuit examined here was: “being regarded as having such an impairment.”15 Pet. App.
29a-34a (citing 42 U.S.C. § 12102(1), (3)(A)). Here the
Ninth Circuit, like other circuits before it, improperly
went beyond examining how the City regarded the
subject facilities’ clients and attributed to the City
opinions merely expressed by the public during public
forums.
This Court has made clear that the “regarded as”
prong refers to the belief of the person accused of discrimination, not of a non-party. For the “regarded as”
prong to be invoked, “it is necessary that a covered entity entertain misperceptions about the individual.”
Sutton, 527 U.S. at 489 (emphasis added); accord
Murphy v. United Parcel Serv., Inc., 527 U.S. 516,
521-22 (1999). In those employment cases, the “covered entity” was the employer being sued for discrimination.
15 In context, “such an impairment” refers to the first prong
of the statutory definition, which defines disability as “a physical
or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A).
The ADA Amendments Act of 2008 clarified that a plaintiff
claiming discrimination on the “regarded as” basis need not
prove that the impairment limits or is perceived to limit a major
life activity, 122 Stat. at 3555; 42 U.S.C. § 12102(3), but the FHA
has not been so amended, 42 U.S.C. § 3602(h)(1).
26
Here, however, the Ninth Circuit expanded the
reach of the “regarded as” prong to include the perceptions of persons other than the entity accused of
discrimination. The Ninth Circuit held that the district court should have included, in its assessment of
whether the City regarded the sober houses’ clients as
disabled, “[t]he oral testimony given at public hearings and written statements submitted to the City by
residents opposing the permit applications for Appellants’ sober living homes reflect[ing] stereotypes
about the homes’ residents.” Pet. App. 33a.
Indeed, in the Ninth Circuit’s view, mere acknowledgment of public comments in a municipality’s decision can be used to prove that the municipality harbored the same beliefs. It concluded that on remand
this type of evidence, “if appropriately presented and
to the extent it appears in the City Council’s stated
reasons for” its actions, “should be considered in the
‘regarded as disabled’ analysis.” Pet. App. 34a. But
here, in denying a conditional use permit to allow a
sober living house to continue operations, the City
simply acknowledged that “[w]ritten and oral testimony documents the negative impacts of the existing
sober living facility on nearby residents.” 20-55870
C.A. E.R. 2262. The Ninth Circuit decision seems to
suggest that this accurate summary of views the City
had received in public forums can be used as evidence
against it in a discrimination suit.
In concluding that public comment was evidence
that could be used against the City in a discrimination
suit, the Ninth Circuit agreed with the Sixth Circuit
decision in MX Group, 293 F.3d at 341-42, on the
proposition that “this type of public speech about so-
27
ber living home residents was evidence that the government regarded the population under discussion as
disabled.” Pet. App. 34a. In MX Group, the Sixth Circuit concluded from testimony given at a board hearing that, “based on fear and stereotypes, residents believed that the drug addiction impairment of Plaintiff’s potential clients, at the very least, limited the
major life activity of productive social functioning, as
their status as recovering drug addicts was consistently equated with criminality.” 293 F.3d at 342.
This was “sufficient evidence to show that the reason
the city denied Plaintiff the zoning permit was because the city feared that Plaintiff’s clients would continue to abuse drugs, continue in their drug activity,
and attract more drug activity to the city.” Id.
Similarly, the Second Circuit in Tsombanidis v.
West Haven Fire Department upheld a district court’s
finding that a fire code prohibiting a home for recovering alcoholics and drug addicts amounted to intentional discrimination. 352 F.3d 565, 580 (2d Cir.
2003), superseded by regulation on other grounds as
stated in Mhany Mgmt., Inc. v. County of Nassau, 819
F.3d 581 (2d Cir. 2016). The court noted that neighbors expressed their concerns and that it became apparent that there was significant community opposition to the home locating in the neighborhood. Id. at
571. The circuit court held that the district court had
“used the appropriate factors” when it noted the history of hostility of neighborhood residents to the home
and their pressure on the city officials, and that this
evidence supported its findings. Id. at 580.
These holdings not only contradict this Court’s interpretation of the applicable statutes in Sutton, 527
U.S. at 489, and Murphy, 527 U.S. at 521-22 – they
28
also create serious First Amendment problems for
municipalities. A public entity cannot simply forbid
the public to express opinions it disagrees with. “The
First Amendment protects the right of an individual
to speak freely, to advocate ideas, to associate with
others, and to petition his government for redress of
grievances.” Smith v. Ark. State Highway Emps., 441
U.S. 463, 464 (1979) (per curiam). When a governmental body accepts public expression, any “contentbased prohibition must be narrowly drawn to effectuate a compelling state interest.” Perry Educ. Ass’n v.
Perry Loc. Educators’ Ass’n, 460 U.S. 37, 46 (1983).
Thus, according to the Ninth, Sixth, and Second Circuits, a public body can be found to have discriminated on the basis of views the public expresses to it
that it is powerless to prohibit.
The Sixth and Second Circuit decisions cited above
(MX Grp., 293 F.3d at 341-42, and Tsombanidis, 352
F.3d at 571, 581) show that the Ninth Circuit is not
alone in lending credence to public comments as evidence of a municipality’s discriminatory views. But
overall the circuits have reached inconsistent results
in addressing the issue.
Some circuits have held that discriminatory public
comments should automatically be ascribed to the
municipality that receives them. This is the result
the Second Circuit reached in Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir.
1997), superseded by rule on other grounds as stated
in Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n.7
(2d Cir. 2001). There, the court noted that “[t]he public hearings and submitted letters were replete with
discriminatory comments about drug- and alcohol-dependent persons based on stereotypes and general,
29
unsupported fears.” Id. at 49. It ruled that “a decision made in the context of strong, discriminatory opposition becomes tainted with discriminatory intent
even if the decisionmakers personally have no strong
views on the matter.” Id.
In A Helping Hand, LLC v. Baltimore County, 515
F.3d 356 (4th Cir. 2008), the Fourth Circuit likewise
blurred the distinction between the beliefs held by a
county and opinions expressed to it by “the community.” There, a methadone clinic sued a county for enacting a zoning ordinance that made its methadone
clinic unlawful. Id. at 358. The trial court granted
judgment as a matter of law in favor of the clinic on
some of its claims, holding that the county regarded
the clinic’s clients as significantly impaired in major
life activities. Id. at 358, 367. The circuit court noted
that “the record contains evidence that some members
of the community did regard the Clinic’s clients as unable to hold down legitimate jobs or interact normally
with others.” Id. at 368. It reversed the judgment as
a matter of law because the jury could have reached
different conclusions from this evidence, but it held
that the jury was free to tag the county with the opinions expressed by the “community”:
[A]lthough we have no difficulty concluding
that a reasonable jury could have found that
the community regarded the Clinic’s clients as
significantly impaired in one or more major life
activities, we cannot conclude that this is the
only outcome a reasonable jury could have
reached.
Id.
30
At the other end of the spectrum, the Third Circuit
in RHJ Medical Center, Inc. v. City of DuBois, supra,
affirmed a trial court’s rejection of a hospital’s claim
that a city had violated the ADA by denying it permission to establish a methadone treatment facility. In
doing so, the court held that community comments
about the clinic increasing crime and violence did not
show that the city regarded the clinic’s clients as disabled. 564 F. App’x at 664-66.
Supreme Court review is needed to bring the circuits into line and to make clear, as this Court has
held, that the “regarded as” prong of the disability discrimination statutes requires a showing of the actual
perceptions of the body that allegedly discriminated
(Sutton, 527 U.S. at 489; Murphy, 527 U.S. at 521-22)
– not the perceptions the public expresses to it. This
Court should take this case to establish that a municipality can be held to have regarded a facility’s clients
as disabled based only on its own beliefs reflected in
its own statements and actions, and cannot be held
responsible for statements made to it by the public.
III.
This Case Is a Good Vehicle for This Court
to Resolve Questions of Great Importance
to the Federal Judiciary, Disabled Persons, and the Public at Large.
This case is an ideal opportunity to resolve the
question of how disability must be proved in lawsuits
brought to challenge regulations applied to sober living homes. Here, the Ninth Circuit issued a published opinion reversing summary judgments on the
purely legal question of what evidence an entity
claiming disability discrimination against its clients
under either the ADA or the FHA must present.
31
The Ninth Circuit made in one decision two errors
that have arisen repeatedly: foregoing a showing of
substantial limitation on major life activities, and attributing to a municipality views expressed to it by
the public. In a single case, this Court could resolve
both issues and inform the judiciary as to what a
plaintiff in such a suit must allege to state a claim,
survive summary judgment, and ultimately prove at
trial.
Congress has made clear that the ADA and the
FHA are vital statutes that require uniform enforcement. Its purposes in enacting the ADA included “to
provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities” and “to provide clear, strong,
consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42
U.S.C. § 12101(b)(1), (2). The policy that motivated
the FHA is to similar effect: “It is the policy of the
United States to provide, within constitutional limitations, for fair housing throughout the United
States.” Id. § 3601.
The Ninth Circuit’s decision reflects the confusion
over how to assess disability claims made by entities
in the circuits’ varied decisions, most of which have
departed from the teachings of this Court. For these
reasons, Supreme Court intervention at this time
would greatly aid the lower courts and the parties
that litigate before them.
32
CONCLUSION
In light of the foregoing, this petition for a writ of
certiorari should be granted.
Respectfully submitted,
MARY-CHRISTINE SUNGAILA
Counsel of Record
CHARLES KAGAY
COMPLEX APPELLATE
LITIGATION GROUP LLP
SEYMOUR B. EVERETT
620 Newport Center Drive
CHRISTOPHER D. LEE
Suite 1100
Newport Beach, CA 92660
EVERETT DOREY LLP
18300 Von Karman Avenue (949) 991-1900
Suite 900
mc.sungaila@calg.com
Irvine, CA 92612
KIMBERLY HALL BARLOW
JONES MAYER
3777 N. Harbor Boulevard
Fullerton, CA 92835
Attorneys for Petitioner
July 21, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.