Amicus Curiae Brief — City of Edmonds v. Oxford House, Inc.

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TABLE OF CONTENTS

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STATEMENT OF INTEREST .......................0.-2c0-ceeseeees

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ET Saiitisitanesjencinrpeninnnianaeisemnaiebiniatsiatasiminins

THE FEDERAL HOUSING AMENDMENTS

ACT OF 1988 PERMITS HANDICAPPED IN-

DIVIDUALS RECOVERING FROM ALCOHOL-

ISM AND DRUG ADDICTION TO ENJOY THE

SAME SPECIAL ZONING STATUS ACCORDED

FAMILIES UNDER THE CONSTITUTION ........

IIE is cccaersinarsceepeniesicicsenotnstiunaidnaniaenienasenentenionnanianstin

13

ii

TABLE OF AUTHORITIES

Cases

Village of Belle Terre v. Borass, 416 U.S. 1

CED cenccnssscntocensininistismeaseisneniitnndeaaea

Village of Euclid, Ohio v. Amber Realt; y Co., 272

te 9 eer ere

Federal Statutes and Legislative Resources

ee is SD sinccinctncscetnteniicnsitame

Fis I sirtencstinscecsctsincseiinnntanrastiinaaeemaeae

Se ee ee GD nccsanscncnceneviecneinsaiieaiannee

GB Pe ED eccrcnestsvccnesincnsstmaniaaaaane

ADAMHA Reorganization Act of 1992, Pub. L.

102-821, 42 U.S.C. 300X-25 2... eeeseeeeeeeeees

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-

690, Fair Housing Amendment Act of 1988, Pub.

L. No. 100-480, 102 Stat. 1628 .................0...........

H.R. Re No. 171, 100th Cong., 1st Sess. 18 (1988),

reprinted in 1988 U.S.C.C.A.N. 2178 ....................

Rules and Regulations

49 CFR part 219; 59 FR 67641 o.oo... eee eeeeeeeeees

Emonds Community Development Code

LS | ae

Miscellaneous

Bacharach, Bamberger and Sonnenstuhl, Member

Assistance Programs in the Workplace: The

Role of Labor in the Prevention and Treatment

of Substance Abuse, ILR Press, Ithica, New

» NaS TT:

DHHS Publication No. (SMA) 93-1678, Technical

Assistance Publication Series Number 5, Self-

Run, Self-Supported Houses for More Effective

Recovery from Alcoholism and Drug Addiction

COD cxeccccvseressenitessitescciasitamainsimaiiaassieeaal

EAPA Exchange, After Treatment, Oxford House

Answers the Question of “What Next?”, Novem-

BOE? TID ccccsincencccnccscoussinnnseseieeiiiniacssancanisaenenenniannes

Vernon E. Johnson, I’ll Quit Tomorrow, Harper

and Row, San Francisco, 1980

2,7

iii

TABLE OF AUTHORITIES—Continued

Arnold M. Ludwig, M.D., Understanding the AIl-

coholics Mind, Oxford University Press, New

EEE SETI

Problem Drinking Among Railroad Workers: Ex-

tent, Impact and Solutions, University Research

Corporation, Washington, 1979

Report No. FREA/OPPD-OR&D 76-283, A Survey

of Alcohol and Drug Abuse Programs in the

Railroad Industry, 1976 .....0000000

Seventh Special Report to the U.S. Congress on

Alcohol and Health From the Secretary of

Health and Human Services, January, 1990

The Seattle Times, April 4, 1994, Oxford House:

Tee cesennveumans

George E. Vaillant, The Natural History of Alcv-

holism, Harvard University Press, Cambridge,

SS

Page

In THE

Suprenue Cunt of the United States

OcTOBER TERM, 1994

No. 94-23

City OF EDMONDS,

7 Petitioner,

WASHINGTON STATE BUILDING CopE COUNCIL, et al.,

and UNITED STATES OF AMERICA,

Respondents.

On Writ of Certiorari to the

United States Court or Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE AMERICAN

TRAIN DISPATCHERS DIVISION OF THE

BROTHERHOOD OF LOCOMOTIVE ENGINEERS,

THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS,

THE BROTHERHOOD OF RAILROAD SIGNALMEN,

AND THE UNITED TRANSPORTATION UNION

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS

The American Train Dispatchers Division of the

Brotherhood of Locomotive Engineers, The Brotherhood

of Locomotive Engineers, the Brotherhood of Railroad

Signalmen, and the United Transportation Union are

railway labor organizations having a direct interest in the

assurance of railroad safety. To assure safe operating

conditions for their members, the Brotherhoods have—

since the beginning—fostered abstinence from any alcohol

2

or addictive drugs on the job. Through collective bar-

gaining with the railroad industry, the railway labor organ-

izations have actively fostered intervention and treatment

whenever a railroad employee becomes afflicted with alco-

holism or drug addiction. As part of such intervention and

treatment, addicted employees are afforded an opportunity

to develop behavior necessary to stay clean and sober.

Once an addicted individual has changed behavior and

developed behavior likely to result in long-term sobriety,

employment is resumed. Utilization of self-help programs

such as Oxford House often provide the kind of support

necessary for an alcoholic or drug addicted employee to

develop long-term abstinence from the use of any alcohol

or drugs.

INTRODUCTION

The location of Oxford House-Edmonds is similar in

the location, type and size to the more than 500 other

Oxford Houses throughout the country. While the first

Oxford House was started in 1975 in Silver Spring, Mary-

land, the number of houses has rapidly increased since

1989 as a result of enactment of § 2036 of Pub. L.

100-690, the Anti-Drug Abuse Act of 1988.’ Each of the

Oxford Houses is an equal member of Oxford House,

Inc., the non-profit, umbrella organization for the national

network of individual houses. The umbrella organization

provides a charter to groups of six or more recovering

individuals who rent a house together and follow the

standardized system of operations developed by the organi-

zation. Each charter has three conditions: (1) the group

must be democratically self-run, (2) the group must be

financially self-supported, and (3) the group must imme-

diately expel any resident who returns to using alcohol

or drugs. These three conditions form the basis of the

conditions for the promotion of recovery homes under

1 See Department of Health and Human Services Publication No.

(SMA) 93-1678: Self-Run, Self-Supported Houses for More Effec-

tive Recovery from Alcohol and Drug Addiction, 1993.

3

§ 2036 of Pub. L. 100-690, the Anti-Drug Abuse Act of

1988. 42 U.S.C. 300x-25.

Shortly after enactment of the recovery house provision

in Pub. L. 100-690, the magazine of the professional

association of employee assistance program (EAP) direc-

tors ran an articule entitled: After Treatment, Oxford

House Answers the Question of “What Next?”* “EAPs

have struggled for years with the “revolving door syn-

drome,” it stated, “It may be that just as the Oxford

House concept of communal living is a link in the recov-

ery chain, it can play a major part in EAP referral and

follow up.” *

Railway labor organizations have first hand knowledge

of the value of an effective peer program to provide a

continuum of support for the recovering alcoholic and

drug addict. Many of the labor organizations were started

in the last century as temperance organizations. The

industry itself had Rule G which prohibited the use of

any alcohol or drugs on the job or before coming to work.

In 1976, the Federal Railroad Administration conducted a

detailed study of alcohol and drug abuse programs in

the railroad industry.‘ That report recommended close

cooperation between railroad management and labor or-

ganizations for prevention, intervention and treatment.

The Federal Railroad Administration also contracted a

cooperative labor and management study of the industry

between 1977 and 1979 to determine the extent of alcohol

and drug problems among railway employees.’ As an

* EAPA Exchange, November 1989.

3 Id. p. 27.

* Report No. FRA/OPPD-OR&D 76-283, A Survey of Alcohol and

Drug Abuse Progrems in the Railroad Industry.

* Problem Drinking Among Railroad Workers: Extent, Impact

and Solutions, University Research Corporation, Washington, 1979.

Known as the REAP Study the survey involved 234,000 railroad

4

outgrowth of that report, railway labor organizations took

a number of steps to deal with the problem including

collectively bargained health insurance coverage for treat-

ment and a change in practices for dealing with the use of

alcohol and drugs by employees. Today, Operation Red-

Block is a peer prevention, intervention and treatment pro-

gram whereby members of labor organizations work with

each other to prevent alcohol or drug use on the job or

before coming to work and help the individual with an

addiction to get treatment.° In the Operation RedBlock

program volunteers also assist the recovering employee

after treatment to help prevent relapse.

Recovery from alcoholism and drug addiction is a

process to develop life-long behavior change necessary

to avoid drinking any alcohol or using any addictive

drug. Self-help programs such as Alcoholics Anonymous

and Oxford House are valuable tools to help the recover-

ing alcoholic and drug addict stay clean and sober.

Within the railroad industry the decline in active alco-

holism and drug abuse as a result of Operation RedBlock

and related programs has been so significant that random

testing of employees as required by the Federal Railroad

Administration has been reduced from a requirement of

annually testing 50% of the workforce to a requirement

of annually testing 25% of the workforce. The lower

testing requirement is the result of finding less than 1%

positives from the preceding two-year testing period.’

employees and found 25° were non-drinkers; 56% drink without

problems and 19% were problem drinkers.

® Bacharach, Bamberger and Sonnenstuhl, Member Assistance

Programs in the Workplace: The Role of Labor in the Prevention

and Treatment of Substance Abuse, ILR Press, Ithica, New York,

1994.

749 CFR Part 219; 59 FR 67641, December 30, 1994. Note that

the positive test rate for a 50 percent random sample of railroad

employees was but .79 in 1992 and .72 in 1993.

5

The railway labor organizations know that treatment

for alcoholism and drug addiction works if there is an

organized program of support for an alcohol and drug-

free workplace and an opportunity for the afflicted addicted

employee to learn the behavior necessary for recovery.

The Oxford House program which permits groups of

six Or more recovering individuals to live together in a

rented house following a standardized system of demo-

cratic operations, mutual support and strict adherence to

staying clean and sober, is an important resource for pro-

viding recovering persons the opportunity to stay clean

and sober forever.

Therefore, it is important that local jurisdictions make a

reasonable accommodation in their zoning laws to permit

Oxford Houses to be rented in good neighborhoods. More-

over, the extent of the continuing problem of alcoholism

and drug abuse in the population at large necessitates the

mass replication of recovery houses which can only take

place if handicapped individuals are able to rent and

establish such houses without protracted adjudication and

litigation.

6

ARGUMENT

THE FEDERAL HOUSING AMENDMENTS ACT OF

1988 PERMITS HANDICAPPED INDIVIDUALS RE-

COVERING FROM ALCOHOLISM AND DRUG AD-

DICTION TO ENJOY THE SAME SPECIAL ZONING

STATUS ACCORDED FAMILIES UNDER THE CON-

STITUTION.

Treatment for alcoholism and drug addiction involves

much more than simple detoxification. The best descrip-

tion of treatment of the alcoholic and drug addict con-

tinues to be Vernon Johnson’s four steps—(1) interven-

tion; (2) detoxification; (3) education, and (4) long

term behavior change.” The maintenance of “long-term

behavior change” is the most difficult part of successful

treatment for the alcoholic and drug addict. In 1988, Dr.

Arnold M. Ludwig, a professor of psychiatry at the

University of Kentucky, reported that eighteen month

follow-up studies of alcoholics after treatment showed

that about one-half of the alcoholics managed to stay dry

for a minimum of three months; about one-third for six

months; about one-sixth for twelve months; and less than

one-tenth for the entire eighteen month period.’ Dr.

George E. Vaillant, in a long-term longitudinal study

reported a similarly high relapse rate of 80% for alco-

holics two years following treatment.’®

The concept underlying self-run, self-supported recovery

houses is the same as the one underlying Alcoholics Anony-

mous and Narcotics Anonymous—addicted individuals can

help themselves by helping each other abstain from alcohol

*Vernon E. Johnson, /'ll Quit Tomorrow, Harper and Row, San

Francisco, 1980. (See particularly chapters 5 and 7 and Appendix

A.)

® Arnold M. Ludwig, M.D., Understanding the Alcoholics Mind,

Oxford University Press, New York 1988, p. 51.

' George E. Vaillant, M.D. The Natural History of Alcoholism,

Harvard University Press, Cambridge, Massachusetts, 1983.

7

and drug use one day at a time for a long enough time

to permit a new set of values to be substituted for the

values of a lifestyle in which alcohol and drugs were

used.’ Vaillant enumerates the following four compon-

ents of treatment which can provide the recovering alco-

holic with the means for changing behavior: (1) offering

the patient a non-chemical substitute dependency for

alcohol, (2) reminding him ritually that even one drink

can lead to pain and relapse, (3) repairing the social

and medical damage that he has experienced, and (4)

restoring self-esteem.’ He goes on to point out that “self-

help groups, of which Alcoholics Anonymous is one

model, offer the simplest way of providing the recovering

alcoholic with all four components referred to above.” **

Many recovering alcoholics need both the time and sup-

port of congregate living. Oxford Houses provide that

time and support in a way that foster the four components

of successful treatment set forth by Dr. Vaillant. The

democratic self-rule of a sufficiently sized group allows the

individual resident to relearn or learn responsible behavior

and values without the use of alcohol. The open-ended

time frame in which an individual can live in a house

takes into account individual differences in mastering new

behavior to assure total abstinence. For railroad em-

ployees at work, programs such as Operation RedBlock

supplement the support that is provided in an Oxford

House and at self-help meetings such as Alcoholics Anony-

mous This comprehensive approach prevents relapse and

makes treatment effective.

The location of an Oxford House in a good neighbor-

hood further enhances the prospects of successful recovery.

11U.S. Department of Health and Human Services, Technical

Assistance Publication Series Number 5, Self-Run, Self-Supported

Houses for More Effective Recovery from Alcohol and Drug Ad-

diction. DHHS Publication No. (SMA) 93-1678, p. 7.

12 Vaillant, op. cit. 300.

13 Jd. 301.

8

This is why an appropriate application of The Federal

Fair Housing Admendments Act of 1988 (“FHAA”) is

important.

FHAA broadly protects persons with disabilities

against discrimination in all forms of housing. 42 U.S.C.

§ 3602(h). When FHAA was enacted, Congress recog-

nized that sometimes rules and regulations might have

to be altered in order for persons with disabilities to have

equal access to and use of housing. Specifically, Congress

included in the definition of discrimination “a refusal to

make reasonable accommodation in rules, policies, prac-

tices, or services, when such accommodations may be

necessary to afford such person equal opportunity to use

and enjoy a dwelling.” 42 U.S.C. § 3604(3)(B).

Handicapped recovering alcoholics and drug addicts

are in a vulnerable position in two ways: (1) their past

addictive behavior has often left them with family, em-

ployment, financial or other problems, and (2) the chal-

lenge of learning new behavior free of alcohol or drug

use. Where they used to live is sometimes not an option

and if it is it may make it more difficult to change

behavior because of old habits, friends and family stress.

The length of time and individual needs to live with others

in the same situation varies with each individual situation.

However, the average length of stay in an Oxford House

is thirteen months.”**

The question in this case is whether the exemption

contained in § 3607(b)(1) of the FHAA permits the

City of Edmonds, Washington not to accommodate a

group of unrelated handicapped individuals who because

of their handicap (recovery from alcoholism and drug

addict) reside together in an Oxford House—a self-run,

self-supported recovery house that meets the requirements

14 The Seattle Times, April 4, 1994, Oxford House: Sober To

Stay.

9

or the recovery house provision of the Anti-Drug Abuse

Act of 1988. 42 U.S.C. 300x-25.

The City of Edmonds’ Community Development Code

(ECDC) has a definition of “family” which includes “a

group of five or fewer persons who are not related... .”

ECD” §21.30.010. Clearly, absent the FHAA, the

eight to twelve residents of Oxford House-Edmonds could

not lawfully reside in a dwelling zoned for single family

residence. Village of Belle Terre v. Boraas, 416 U.S. 1,

94 §. Ct. 1536 (1974). However, unlike the unrelated

individuals in the Belle Terre Case, the residents of Ox-

ford House-Edmonds are all recovering alcoholics and

drug addicts and fall within the protected class of “handi-

cap” defined in § 802 of the FHAA. 42 U.S.C. 3602(h).

This Court in Village of Euclid, Ohio v. Amber Realty

Co., 272 U.S. 365 (1926), considered local single family

zoning for the first time in the nation’s history and found

that it was constitutional. Mr. Justice Southerland, in

writing the opinion for the court, noted that:

Such regulations are sustained, under the complex

conditions of our day, for reasons analogous to those

which justify traffic regulations, which, before the

advent of auvtomebiles and rapid transit railways,

would have been condemned as fatally arbitrary and

unreasonable. And in this there is no inconsistency,

for, while the meaning of constitutional guaranties

never varies, the scope of their application must ex-

pand or contract to meet the new and different con-

ditions which are constantly coming with the field of

their operation. In a changing world it is impossible

that it should be otherwise. Id. at 387.

It is within this context of a “changing world” that

Congress passed and President Reagan signed the FHAA.

Changes in legislation affecting the treatment of the handi-

capped, including alcoholics and drug addicts reflects chang-

ing knowledge about the nature of the handicap and

changes in society. The status provided handicapped in-

10

dividuals with respect to housing today is considerably

different from just thirty or forty years ago. In the

nineteen-fifties, the handicapped—whether mentally im-

paired, alcoholics or drug addicts—-were segregated and

incarcerated as a matter of public policy. Beginning with

the Mental Retardation Facilities and Community Mental

Health Centers Construction Act of 1963, Pub. L. No.

88-164, 77 Stat. 282 (1963)”° the nation changed its

policy with respect to treatment of the handicapped. More

recently, in § 1925 of the ADAMHA Reorganization Act

of 1992, Pub. L. 102-321, 42 U.S.C. 300x-25, Congress

changed the number of recovering individuals required to

live in a self-run, self-supported recovery home to be

eligible for a start-up loan from four (4) to six (6) pre-

sumably because the larger number of individuals made

such a recovery home function better.

The Ninth Circuit Court correctly found that the City

of Edmonds could not exclude groups of handicapped

individuals living in an Oxford House by limiting the

number of unrelated individuals who could live in an area

zoned for single family dwellings.

The central issue in the case revolves around whether

the following exemption in the Act is interpreted broadly

or narrowly:

Nothing in this subchapter limits the applicability of

any reasonable local, State or Federal restrictions

regarding the maximum number of occupants per-

ore im occupy a dwelling. 42 U.S.C. § 3607

The Court first looks to the plain meaning of the provi-

sion and determines that it can be either interpreted

broadly as the City of Edmonds argues, or narrowly, as

the respondents argue. It then looks to the legislative

history of which there is only one Committee Report—

15 Repealed by the Omnibus Budget Reconciliation Act of 1981,

Pub. L. No. 97-35, § 902 (e) (2) (B), 95 Stat. 537, 560.

11

the Judiciary Committee of the House of Representa-

tives—H.R. Rep. No. 711, 100th Cong., 2d Sess. 24

(1988). That report is crystal clear.

These provisions are not intended to limit the applica-

bility of any reasonable local, State, or Federal re-

strictions on the maximum number of occupants per-

mitted to occupy a dwelling unit. A number of juris-

dictions limit the number of occupants per unit based

on a minimum number of square feet in the unit or

the sleeping areas of the unit. Reasonable limitations

by governments would be allowed to continue, as

long as they were applied to all occupants, and did

not operate to discriminate on the basis of race,

color, religion, sex, national origin, handicap or

familial status. (emphasis added )

Unlike some legislation which generates reports from

several legislative committees as well as a Committee on

Conference between the House and the Senate, this legisla-

tion has only the report by the House Judiciary Committee.

It provides a reasonable explanation of what is intended

by the exemption for restrictions on the maximum number

of occupants; i.e., number of occupants per unit “based

on a minimum number of square feet in the unit or the

sleeping areas of the unit.” Not only does the example

in the House Report show how to apply the limitation

to the maximum number of individuals permitted to oc-

cupy a dwelling, but the report language specifies that

limitations on the maximum number of occupants would

be allowed “as long as they were applied to all occupants

and did not operate to discriminate on the basis of race,

color, religion, sex, national origin, handicap or familial

status.”

The City of Edmonds in its Petitioner’s brief argues that

the decisions of the Supreme Court afford the family

special status under the Constitution. We agree. How-

ever, the accommodation of a group of recovering indi-

viduals living together in order to stay clean and sober

12

does not adversely impact a neighborhood. Neither does

it open the door to group homes for those who are not

handicapped. A local jurisdiction can still limit the num-

ber of unrelated “non-handicapped” individuals who can

occupy a dwelling in an area zoned for single family

dwellings. Village of Belle Terre v. Borass, 416 U.S. 1

(1974).

Petitioner City of Edmonds describes the underlying

reason that areas zoned for single family dwellings pro-

vide the environment to enhance recovery and mutual

support when it quotes Justice Douglas to describe such

zones:

A quiet place where yards are wide, people few,

and motor vehicles restricted are legitimate guide-

lines in a land-use project addressed to family needs.

. . . The police power is not confined to the elimi-

nation of filth, stench and unhealthy places. It is

ample to lay out zones where family values, youth

values, and the blessings of quiet seclusion and clean

air make the area a sanctuary for people. Belle

Terre, 416 US. at 9.

What group of individuals more need to live in a zone

“where family values, youth values, and the blessings of

quiet seclusion and clean air make the area a sanctuary

for people” than those handicapped, like the ten to twelve

men in Oxford House-Edmonds, who want to change their

lifestyles by living together in an alcohol and drug-free

environment?

13

CONCLUSION

Alcohol abuse and dependence (i.e. alcoholism) are

serious problems that affect about 10 percent of adult

Americans.’** While the railway labor organizations have

successfully worked with railroad management to address

the problem within the industry, the problem throughout

society remains large. Establishment of Oxford Houses

throughout the country in safe single family neighbor-

hoods can provide a valuable resource for successful re-

covery from alcoholism and drug addiction. For the

reasons, set forth above, amici curiae urge this Court to

affirm the decision of the Court of Appeals below.

Respectfully submitted,

LAWRENCE M. MANN

ALPER & MANN, PC

400 North Capital Street, N.W.

Suite 851

Washington, D.C. 20001

(202) 298-9191

Counsel for Amici Curiae

16 Seventh Special Report to the U.S. Congress on Alcohol and

Health From the Secretary of Health and Human £ vices, Jan-

vary, 1'/90, p. xxi.