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superseded by statute on other grounds, ADA Amendments Act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.

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